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June 6, 2011

Could Representative Anthony Weiner be charged with a federal crime?

Big developments in the "Weinergate" story today, as detailed in this ABC News piece headlined "Rep. Anthony Weiner: 'The Picture Was of Me and I Sent It'."  First the basics, and then more about the question in the title of this post:

Rep. Anthony Weiner of New York said today he has engaged in "several inappropriate" electronic relationships with six women over three years, and that he publicly lied about a photo of himself sent over Twitter to a college student in Seattle over a week ago. "I take full responsibility for my actions," Weiner said. "The picture was of me, and I sent it."

The announcement came as ABC News prepared to release an interview with Meagan Broussard, a 26-year-old single mother from Texas who provided dozens of photos, emails, Facebook messages and cell phone call logs that she says chronicle a sexually-charged electronic relationship with Weiner that rapidly-evolved for more than a month, starting on April 20, 2011....

Broussard's story had threatened to expose the secret online life of one of the House Democrats' most popular members, and a man many considered a leading candidate for mayor of New York City.... "I just chuckled," Broussard, a nursing student, said of her reaction to Weiner's initial response to the Twitter incident. "It would be one thing if he came out and said, 'Hey, so what?' But now he's saying he got hacked?"...

Weiner told ABC News last week that the Twitter incident was a "prank" on him, but he neither confirmed nor denied at the time that the photo depicted his body. "I am reluctant to say anything definitively about this," he said of the photo....

Broussard said she wanted to come forward now out of concerns for her own image as an aspiring nurse, and that of her 3-year-old daughter, should her identity be leaked online. More than a dozen photos sent by Broussard to anthonyweiner@aol.com and a second account she believed was Weiner's were obtained and licensed from her by ABC News.

Broussard said her first contact with Weiner occurred on April 20 after she "liked" a YouTube clip of one of Weiner's speeches that had been posted to his Facebook page. She also commented -- "hottttt" -- on the link, which is still publicly visible on Weiner's page and has received hundreds of other comments from Facebook users.

Weiner "almost immediately" added Broussard as a Facebook friend through his personal profile account, she said.  And she accepted his request.  According to Broussard, the two immediately began messaging through Facebook chat, eventually exchanging "hundreds of messages," many of a sexual nature....

During one Facebook chat conversation, Broussard said she voiced uneasiness with the electronic relationship, to which she says Weiner replied, "you are not stalking me.... I am stalking you."...

Occasionally while chatting through Facebook, the two would simultaneously use email to exchange photos, she said. Two images Broussard received from anthonyweiner@aol.com on May 4 and May 5 show what appears to be Weiner's face.

One, sent under the subject line "Me and the pussys," appears to show Weiner seated on a sofa in an undershirt next to cats; the other appears to depict Weiner in an office holding the white piece of paper. Both appear to have been sent via Blackbery, according to email records.

Later in the month, Broussard received three, more graphic images from the address RockOh77@yahoo. com, which she said was Weiner's online alias.

To my knowledge, "sexting" between consenting adults is not (yet?) a state or federal crime.  But that is not all that Representative Anthony Weiner has done.  In addition to publically and repeatedly lying about his Twitter account being hacked, he apparently also (jokingly?) indicated that he was "stalking" a woman on-line after she "voiced uneasiness with the electronic relationship."  And this companion ABC News story indicates that there is talk of a congressional investigation concerning misuse of "official resources":

Minority leader Nancy Pelosi and Democratic Congressional Campaign Committee chair Steve Israel both called for an ethics committee investigation.  "I am deeply disappointed and saddened about this situation; for Anthony's wife, Huma, his family, his staff and his constituents," Pelosi, D-Calif., said in a statement.  "I am calling for an Ethics Committee investigation to determine whether any official resources were used or any other violation of House rules occurred."

As my recent posts here and here about the Edwards' indictment indicate, I am not eager to turn every stupid thing done by any stupid horny politician into a federal criminal case.  Nevertheless, I am always eager to fully understand the breath and reach of federal criminal law, and thus I am eager to hear from knowledgeable readers as to whether some of Rep. Weiner's stupid behavior could be amount to a federal criminal offense. 

In light of the Lori Drew and John Edwards and other "cutting-edge" federal prosecutions, I have come to believe (and fear) that just about any really stupid behavior on-line or by a politician could be turned into a federal criminal case by a motivated and creative federal prosecutor.  "Weinergate" seems to provide a good test-case for my concerns, and thus I hope some readers might help me assess whether New York's newest high-profile sexter needs to be worrying about more than just his political career.

June 6, 2011 at 06:43 PM | Permalink


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On the evidence currently in the public domain, I don't see a criminal case. There might be more and different evidence coming out, and if so, you have to keep an open mind.

If, in the very unlikely event there is a prosecution, I don't see how the government wins. You couldn't stop the jury from laughing, and laughing juries don't convict.

Posted by: Bill Otis | Jun 6, 2011 6:56:58 PM

Never underestimate the need for the glamour of a high profile case by "a motivated and creative federal prosecutor" whose natural propensity is to turn anything that will get him a little glory into a federal case. Why, I can just see the headlines now. WEINER CAUGHT BY THE WEINER-----FEDERAL PROSECUTOR SAYS----WE GOT THE WEINER AND INTEND TO HANG HIM UP BY HIS.............well, you get the picture.

Sorry, this one was just too funny to pass up.

Posted by: Thomas | Jun 6, 2011 8:49:34 PM

If not, expect the GOP to propose the new "Showing Your Naughty Bits Online Prevention Act of 2011", just in time for the election run-up. Anyone who opposes it obviously supports showing children your naughty bits using the *gasp* INTERNET!

Posted by: NickS | Jun 7, 2011 8:57:44 AM

There is always the lawyer gotcha of personal use of government property if any of these actions took place in his office. I cannot think of any government purpose served by sexting. I am working on it. The violation of that rule is really 100%. Bill would be an exception. He is sole human being on earth who never used a government phone to make a a personal call, nor took a government 10 cent pen home.

I have not researched whether Congress people exempted themselves from this regulation, as they have from so many others. They may argue, they are on the job 24 hours a day, thus personal use is inescapable.

P.S. Oh, I know the benefit of sexting by politicians. It should be encouraged along with playing Solitaire on government computers, all day long. The more time spent on personal vice, addictions, time wasting, the less the damage done to our nation by enactment of bogus and devastating legislation. Skirt chasing should be immunized, and encouraged. For example, the horrific, devastating Frank-Dodd bill would not have gotten through if Frank were busier sexually.

Posted by: Supremacy Claus | Jun 7, 2011 9:17:52 AM

Just a few posts down is a quote dealing with John Edwards that perfectly fits this issue:

"Barry Pollack of Washington's Miller & Chevalier believes that just because prosecutors can target an individual as widely vilified publicly as Edwards has been for his personal conduct doesn't mean that they should do so. 'Federal criminal laws are expansive enough that a clever prosecutor can recast almost any bad behavior into a federal crime,' Pollack said. 'Being a jerk should make you a jerk, not a federal felon.'"

Posted by: C.A. | Jun 7, 2011 9:54:07 AM

Hmmm...very interesting.

The point is that a DA can pretty much take ANY level of allegation regarding sex acts and prosecute it in the way he feels most comfortable with in obtaining a guilty verdict, or even a plea. In this case, there are thousands of registered sex offenders who have been prosecuted for what Weiner is accused, or may be accused, of doing. Many of the RSO members of SOSEN, for instance, fit under this criterion. To be blunt, though Mark Foley will always be considered the hypocrite of sex offender laws as he pushed through the Adam Walsh act despite his admitted sexting of underage pages, Weiner can potentially be charged for a crime that not only would be put him on the NY sex offender registry, but would bump him to Level 2.

Now, I seriously doubt he will even see charges, let alone an indictment seen before a grand jury. But that's because of his access to $$,$$$ lawyers. If he were like you or me (or more precisely, a broke charged defendant), then he would definitely be looking at Level 2.

Posted by: Eric Knight | Jun 7, 2011 12:10:41 PM

Sounds like "honest services" fraud to me!

Posted by: Da Man | Jun 7, 2011 1:08:35 PM

Bullsh_t distraction to draw an audience . . . which obviously includes you and yours . .

Posted by: nan | Jun 7, 2011 1:41:43 PM

SC --

There is no rule prohibiting government employees from making personal calls. Of course you can't spend all day doing it.

Funny you should mention government pens. I would bring more expensive pens INTO work, because those cheapo Bic pens the government furnished were lousy.

I brought so many pens into work that, when I left the USAO, I had boxes and boxes of them to bring home. They're floating around the house to this day, 12 years later.

Posted by: Bill Otis | Jun 9, 2011 2:15:07 AM

i'm with you there bill. when i was in the service i used to HATE those pens!

Posted by: rodsmith | Jun 9, 2011 12:29:23 PM

rodsmith --

Which branch of the service were you in?

Posted by: Bill Otis | Jun 9, 2011 11:18:48 PM

At least arrest him for false advertising. He said he was 'hot' and 'sexy'. The skinny little grease ball has a beak twice the size of 'Lil Tony'. Sickos want to get caught...and---it could not have happened to someone more deserving. His wife must be loser x 100.

Cable Prog. Producer.

Posted by: Matt Hooper | Jun 20, 2011 12:58:07 PM

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