Foley Scandal - Page Program

I'm drawn to comparing hypothetical investigations of this case with the Libby/Plame-leak investigation. If there is in fact no crime, for whatever reason, does that mean there can't be any penalty for false statement or perjury? Are the perverts free to give false statements to investigators, taking a chance that there was no underlying criminal activity? Should the people involved in leaking and promoting the story be able to lie about the path the IMs took, with no penalty unless there is an underlying crime?

Should the investigators first establish that there was in fact a criminal violation - by checking the laws, knowing the ages of the participants and so forth - before interviewing anybody?

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My take on the issue, in a nutshell:

1. Foley is a deviant sexual opportunist, but his conduct doesn't clearly "cross the line." Now that take will surprise many people, but the take depends on the weasel-word, "clearly." Sure, Foley is creepy. But how many pages now have come forward with reports about his conduct? Five? From years 1998, 2000, 2002, 2005. Just NOW coming forward?

   What's the matter with these pages? Don't THEY know others are IN DANGER? Well, in hindsight we can say they saw no danger, just a creepy guy who could easily be avoided if one wanted to avoid him. The page side of the contact seems to either easily repel it (which repulsion appears to be respected by Foley -- he's not persistent) or revel in it. The pages directly at risk didn't express any alarm at Foley. None. It was the parents of one page who "asked that the e-mails stop."

   Why else doesn't it "clearly" cross the line? The nature of the conduct is verbal, at least the conduct that we know of. A substantial fraction of Republicans hold that there is no scandal at all if the ex-page recipient of the cybersex is 18. No scandal. That tells me that society as a whole (but not every person) tolerates the conduct at some level.

   Some of the IMs that have been published in the news were sent to Jordan Edmund when he was 17 years 11 months, others when he was 18 years, 2 months. At some point the "it's not okay yesterday, but it's okay today" argument comes into play, but I think the "over/under 18" argument is weak for choosing "scandal" over "no scandal" for what Foley did.

   Some of the scandal followers go so far as to review the age of consent laws in DC, and conclude that with the age of consent being 16 in Washington, DC, that the IMing wasn't illegal. "Unacceptable" they say, but not illegal. I'm puzzled by these - if the conduct is private, legal and consensual, why is it unacceptable?

   One might be repulsed by older/younger relationships in general, but many readers will remember the movie "Summer of '42." The sexual morality conflict is, I think, an inherent part of human nature. No two of us draw the line in the same place.

   Anyway - the stage I'm trying to set isn't to excuse Foley or his conduct. It's to illustrate that society hasn't clearly defined the boundaries of "unacceptable" in such a way as to reliably and promptly detect and punish conduct such as Foley's e-mails and IMs.

2. The pages are first responsible for the delay in exposing Foley's conduct. The pages who were approached in 1998, 2000 and 2002 kept the sexual approaches to themselves and their circles of friends. There are probably more. Should they keep to themselves?

3. The page who was IMing with Foley, Jordan Edmund, was enjoying the relationship. He was no innocent angel who needed to be protected, and the encounter was not uncomfortable for him. Some kids that age are innocent, and do need to be protected, but Jordan Edmund needed no such protection. His parents probably disagree with me.

4. I doubt that Jordan Edmund is playing a deliberate dirty trick against Foley. Mr. Edmund's failure was being indiscreet with the IMs. He shared them with what he thought was a trustworthy circle of friends, and they leaked from there. There could be an interval of years here, between sharing and the same information getting to the DEMs and the media.

5. The Democrats and gay activists are playing political dirty tricks, and engaging in their usual hypocrisy. Others are writing so much on that that I won't rehash. Obviously, the dirty tricksters are feigning moral revulsion - if they actually HAD moral revulsion, they wouldn't withhold evidence of bad conduct until a politically opportunistic time.

6. The Democrats are using a supposed strength of Republicans, a more strict or Victorian or Puritanical sense of morality, against them. The lack of agreement about where moral boundary lines lie is an easily-exploited wedge, in part because Republicans in fact have no better sense of sexual morality than the Democrats do.

7. Limiting an investigation into Congressional oversight of the page program to Foley is a signal that Congress is willfully turning a blind eye.

8. Congressional oversight is (as usual) dysfunctional.

9. The media is (as usual) unable to compose an accurate, concise account.

10. The pundits and amateur commentators are (as usual and understandably) confused.

11. I suspect Foley's conduct with ex-pages extends to house parties and sex. Resigning from Congress cuts off the pressure to investigate the possibility. If there were house parties and sex, the involved pages would cover up. I further doubt that Foley is the only Congressman "partying" and/or hooking up with ex-pages and/or current and past interns.

What I'd like to see ... compelling pages to testify as to all encounters and communications from ANY congressman that was sexual in nature, whether they rebuffed the offer or took it up. This voluntary hot-line thing is crap. Pages who had come-on's from DEM Congressmen are less likely to volunteer information, therefore, the evidence obtained by hot-line will be a self-selected sample with political bias.

Not only for purposes of investigating past conduct, but also going forward, I think pages have to be held to a penalty of some sort for failing to report attempts at untoward fraternization. That's a tougher nut to crack, as kids naturally erect barriers to communication with "responsible adults" as they transition from kids to adults.

I suggest a fine of $10,000, and a statute of limitation of about 7 years. That way the page remains on the hook after graduating from the page program - unlike Congresspeople who become out of reach of the ethics program once they are voted out or resign.

And we are still stuck with defining what's acceptable. Is it going to be "All that's legal is acceptable?" I'm afraid so - that's the lowest common denominator, and society is taken there with a combination of social factors, topped off with a major political party that uses "legal," "proven" and "convicted" as it's only boundary.

And the "legal" issue isn't as hard to deal with as it may seem. The military has fraternization rules, and doctors are held to "no personal relationships with a person who has been a patient within the last 2 years." With the page program, perhaps anti-fraternization rules that extend with a bright line to the age of 18, in combination with the above-mentioned duty to report - with attending penalty for failure to comply with the reporting duty.

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These legal analyses at Volokh have some very funny posts ...

Volokh: Legal Issues in the Mark Foley Investigation
Volokh: More on the Foley Legal Issues

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Unrelated to Foley, I added comments to The Fence Act Post on October 6th.