So with no presidential aspirations to squander and no sordid traditions to uphold, Larry Craig soldiers on, sullying his reputation the way he knows best—through sheer determination and hard work. His latest appeal is a testament to perseverance. What he wanted the court to do—overturn his own guilty plea—was embarrassing and improbable enough the first time. Asking his lawyers to reprise the performance before the Minnesota Court of Appeals (and if he gets the chance, the Minnesota Supreme Court) takes a thick skin and a big line of credit. As a lame duck and lost cause, Craig isn't getting much help in his quixotic exercise: The Senate ethics committee told him to stop using campaign money, and his legal defense fund has collected less than $5,000.
Based on this week's appeals court decision, Craig's arguments might not be worth even that much. Craig's brief contended that he couldn't possibly be held to his written admission that he "engaged in conduct which I knew or should have known tended to arouse alarm or resentment [in] others." According to Craig's lawyers, the plea should be invalid because the public nuisance statute says "others," which is plural, while the creeped-out police detective in the neighboring stall was (no thanks to Craig) singular. With Whitmanesque sweep, however, the court ruled that "the singular includes the plural; and the plural, the singular"—and that in any event, everyone else in the men's room would have been creeped out, too.
Craig's lawyers also tried to argue that their client's conduct was free speech and therefore the nuisance statute was "unconstitutionally overbroad." The court disagreed, ruling in essence that even the First Amendment is not broad enough to cover so wide a stance: "Even if appellant's foot-tapping and the movement of his foot toward the undercover officer's stall are considered 'speech,' they would be intrusive speech directed at a captive audience, and the government may prohibit them."
Citing a Supreme Court precedent that would make Craig's constituents proud, the Minnesota court ruled that the senator picked the wrong place to intrude upon "the right to be let alone." The appellate opinion declared that "the 'privacy interest in avoiding unwanted communication' is very strong in a stall in a public restroom." Craig spent his entire career trying to stop courts from finding a right to privacy in the Constitution, only to end up helping a court find one in the bathroom.
Even in defeat, Craig can remind himself that he's no Rod Blagojevich. Craig never even rated a federal wiretap: The closest he came was when he tried to leave his lawyer a fishy voicemail but called the wrong number. In fact, the two men couldn't have charted more divergent paths to infamy. According to the government's complaint, Blagojevich said of the Senate seat, "I'm just not giving it up for [bleeping] nothing." In the end, that may be the best description ever given of just what Larry Craig did.
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