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    October 24, 2006

    Investigating what exactly?

    Posted by: Chris

    Dennishastert Washington loves its investigations, so it should be no surprise that Foley-gate has now officially devolved into the type of plodding probes that rarely deliver the truth and almost never on a timely basis.  Today was Dennis Hastert's turn, but don't expect to find out anytime soon what the speaker knew and when he knew it.

    So far the Mark Foley mess has spawned at least four investigations: (1) the FBI, which is looking into whether the former Florida congressman broke any laws; (2) the House ethics committee, which is investigating how Republican leaders and their aides responded to complaints from congressional pages; (3) the Catholic archdioceses of Miami and Gozo (in Malta), which are investigating an octagenarian priest who admits fondling and cavorting naked with Foley when he was a teen; and (4) the U.S. attorney in Arizona, who is looking into whether another gay Republican congressman, Jim Kolbe, engaged in illegal sexual contact with congressional pages on a Grand Canyon camping trip.

    Don't expect much "truth" to emerge from the last two probes. A journalist in Malta has already said, "if steps are taken" against the priest, "they would be taken very cautiously and very privately."  The U.S. attorney, similarly, will likely say little if he decides not to prosecute.

    But the first two investigations are the most important, and it's striking that, with all the ink spilled so far on Foley, there's been almost no attention paid to what it is exactly these investigations are looking into. It's certainly not "the truth," as most of us would think of it. Probes like these are only interested in measuring the facts against whatever legal or ethical standard the investigative body is charged with enforcing.

    The FBI is investigating whether Foley broke any laws — presumably federal laws — by engaging in sexually explicit online chats with former pages, who were still minors but may or may not have been at the age of consent to have sex or be exposed to graphic sexual content. So far, only one former page has claimed to have had actual sex with Foley, and he was 17 at the time. Assuming the sex took place in the District of Columbia, then it was legal because the age of consent there is 16.

    The first round of sexually explicit online chats between Foley and a former page took place when the congressman was home in Florida and the former page, then 16, was home in Louisiana.  The age of consent for sex in Florida is 18 (if the older participant is over the age of 24) and 17 in Louisiana.  Like most states, both also have "lewdness" statutes that make it criminal to expose "minors" to vaguely described graphic content.  These statutes are rarely prosecuted, especially when the "content" is online talk, according to a report in the New York Times (no longer available online except by payment):

    In the past, legal experts said, prosecutors have exercised a great deal of discretion in deciding whether to pursue such cases. In the absence of physical contact, said Douglas A. Berman, a law professor at Ohio State University, some prosecutors reviewing e-mail messages like Mr. Foley's ''could say, 'This is really gross, I need to take a shower,' but not charge'' the sender with a crime. But Professor Berman added, ''There are cases in which people have done stuff that is not significantly worse and have had the book thrown at them.''

    If Foley used the chats to arrange an actual meeting, for example when a former page below the age of consent was physically close by, then he could be nabbed for solicitation of sex with a minor, whether or not the meeting ever occurred.  And each of these state laws, if broken by Foley, could also subject to prosecution anyone who knew about his conduct but didn't report it to the authorities.

    But if the FBI probe is based on federal laws, then Foley would mostly face being hoisted by his own petard, since as co-chair of the House Caucus on Missing & Exploited Children he helped enact broad-based legislation designed to protect minors from Internet predators.  Surprisingly, there's really been no media coverage on what exactly that legislation prohibits and how it might apply to Foley's conduct (and those who might have covered it up).

    Follow the jump for why we shouldn't expect much from the House probe, either:

    The House ethics committee, on the other hand, no longer has jurisdiction over Foley since he resigned — a pretty significant loophole for outing the truth about misconduct by members — so a four-member subcommittee is empowered only to investigate how other members and their staff handled complaints about Foley's conduct.  But with all the attention paid thus far to the probe, the press hasn't reported exactly what ethics rules are at issue, and how they might apply.

    So instead we're treated to an almost-daily spectacle of Republican congressmen and their top staffers testifying in secret and saying almost nothing afterward.  As mentioned, House Speaker Hastert testified today.  His embattled chief of staff, Scott Palmer, testified for six hours yesterday. 

    Others who have tesified or are expected to testify include Republican Congressmen Tom Reynolds of New York, Rodney Alexander of Louisiana, John Boehner of Ohio, John Shimkus of Illinois, and Congresswoman Deborah Pryce of Ohio.  Staffers who have testified or are expected to do so include Kirk Fordham, former chief of staff for Foley and Reynolds; Jeff Trandahl, former chief House clerk; Ted Van Der Meid, Hastert's chief counsel; and Mike Stokke, Hastert's deputy chief of staff.

    Because the whole Foley matter is "under investigation," all these principle players have lawyered up and clammed up, in classic Washington style.  Meanwhile, there is an election in two weeks which should allow the American public to pass  judgment on all 435 members of the House on this and many other issues.  But no one expects the House panel to reach any official conclusions by then, as the Washington Post reported today:

    While the panel could release some type of preliminary finding, congressional insiders say, it is highly unlikely that the four subcommittee members could consult with the two other members of the full committee and then, with its staff, finish researching, writing and editing a full report before Election Day.

    Unless the House panel surprises us with preliminary findings, or the political pressure forces Hastert's aides (including Trandahl) to talk publicly, then the Foley investigations, like those damning investigations into pre-war intelligence about Saddam Hussein, will be released too late to allow voters to consider them at the ballot box.  And even then, they may not answer the most important questions the public might have, which are about the judgment of those involved and not the minutiae of consent laws and House "ethics" rules.



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