A leak to Roll Call about Sen. Larry E. Craig's 2007 guilty plea in a Minnesota airport bathroom sex sting should allow him to spend $197,533 in campaign funds on the legal fees to try to undo the plea, the former Idaho senator’s attorney argued in court Wednesday.
The legal costs are no longer personal expenses when an arrest becomes politicized and an opponent uses the arrest for political reasons, attorney Andrew Herman argued at oral arguments before a three-judge panel of the U.S. Court of Appeals of the D.C. Circuit. Craig didn't appear in court.
“He was certainly targeted with the leak of his plea,” Herman said. Craig’s airport arrest in June 2007 was first reported by Roll Call more than two weeks after his guilty plea in the case. A Republican, Craig eventually decided not to seek re-election in 2008 and left the Senate at the end of his third term.
Craig was arrested by a plainclothes police officer investigating complaints of sexual activity in the bathroom after what the officer described as sexual advances made by Craig from an adjacent stall. Craig called the incident a misunderstanding and later said he shouldn't have pleaded guilty.
Herman said the fallout of the 2007 Roll Call story — national media coverage, the loss of Senate committee assignments and probably the “most expensive disorderly conduct charge in history” — was something a non-member of Congress wouldn’t have faced and therefore was part of his office-holder duties.
"If he had not been a United States senator, he would have filed his guilty plea, there would not have been a leak to Roll Call newspaper, he would not have had to address all the political repercussions," Herman said.
The Federal Election Commission lawyer disagreed that Craig was targeted because of his position. The difference is that the leak of Craig’s arrest just goes to the media attention over the criminal case, but he wasn’t arrested and prosecuted based on his position as a lawmaker, Kevin Hancock said.
Craig is challenging a lower court order from a year ago that he pay $242,533 to the Treasury Department — $197,533 from the Craig Committee and a $45,000 penalty — for using campaign money for legal representation on the disorderly conduct charge.
The judges appeared skeptical of Craig’s argument, noting that lawmakers aren't allowed to spend campaign funds to defend themselves in criminal cases such as drunk driving or murder, or in a divorce proceeding, even though they could make the similar arguments about the fallout for their job or re-election prospects.
Chief Judge Merrick Garland questioned how the judges could draw that line. “If we don’t want to draw really hard lines, then maybe we don’t draw one in this case,” Garland told Herman.
The judges haven't ruled in the case, FEC v. Craig for U.S. Senate et al., Case No. 14-5297.