This Week in Creative Lawyering

Remember, Larry Craig? Yeah, you do. Apparently he spent 215k of campaign cash on his legal defense after being arrested in a Minnesota bathroom for wide stancing.

The FEC charges that defense was personal and not a proper campaign expense, and wants it paid back with penalties.

Craig counters that money tied to his airport bathroom trip was neither for personal use or his campaign, but falls under his official, reimbursable duties as senator because he was traveling between Idaho and the nation’s capital for work.

He cites a U.S. Senate rule in which reimbursable per diem expenses include all charges for meals, lodging, hotel fans, cleaning, pressing of clothing – and bathrooms.

“Not only was the trip itself constitutionally required, but Senate rules sanction reimbursement for any cost relating to a senator’s use of a bathroom while on official travel,” wrote Andrew Herman, Craig’s lawyer in Washington, D.C., in documents filed Thursday.

Well done, Andrew Herman. You win.


  1. Blog Goliard says:

    The whole episode made me so sad. I grew up in north Idaho, and Larry Craig was my Congressman for many years before moving on to the Senate. A good man, approachable and friendly, honest and down-to-Earth. Not without his foibles and faults (some endearing, some less so), but overall the sort of representative–earnest and hard-working and ever focused on promoting the common good as best he knew how–that we all want to have. That was the Larry Craig I knew.

    He wasn’t the first such man I saw transmogrify into something far less noble, the longer he was in office. For example, remember Tom Foley (from right across the state line in Washington)? He was a good friend of my uncle’s for many years. My uncle described him in almost identical terms as I used above to describe Craig. But it should have come as no surprise when Foley–as sitting Speaker of the House–lost his seat in 1994.

    Yes, that year was an anti-Democratic tidal wave; but the hostile environment merely turned what would have otherwise been a close call into a career-ending loss. The big problem was that the people back home looked at Foley and, more and more every year, found themselves saying, “Tom? Is that still you? I’m not even sure I know you anymore…much less like you anymore.”

    Such experiences changed me from a term-limits skeptic to a strong advocate.

    I hope that when folks like Buzz take offense to outbursts of anti-incumbent fervor, they will realize that some of us are committed to regularly flushing incumbents out of office whenever we can–the good, the bad, and the ugly alike–not just to protect us citizens, but even more to protect people in politics from the long-term side-effects of holding office, and ultimately from themselves.

    • benevolus says:

      “the people back home looked at Foley and, more and more every year, found themselves saying…:

      So he did get term-limited. Why would you want to mandate that? The people finally got fed up and kicked him out via their own free will.
      If they were to keep a crook in office, what makes you think they wouldn’t just elect a new crook?

      As I’ve said before, term limits are for people who want to affect someone ELSE’S representative.

      • Blog Goliard says:

        Term limit laws improve the situation in two ways:

        1) Foley was a Member for 30 years before the folks back home finally “term-limited” him…and even then, as I indicated, it took the tidal wave of 1994 to ensure his defeat. Craig spent 28 years in Congress before self-immolating…and if there hadn’t been a cop in that airport bathroom, he’d still be a Senator.

        I’m not familiar with any popular term-limit proposals that would give anyone that long of a time in which to prove Lord Acton right.

        2) You’re right that it’s, in significant part, about other peoples’ representatives as well. Voters who want to turn out their own representative face a Prisoner’s Dilemma; incumbents, knowing this full well, exploit this by running on their seniority and influence and such. Term limits for all representatives is the most obvious and most enactable way to solve the Prisoner’s Dilemma.

        • benevolus says:

          But that’s like fixing your air conditioner by changing your tires. Term limits do nothing to solve the problem. If voters aren’t paying attention enough or care enough or are so easily manipulated that they keep crooks around forever, what in the world makes you think they are suddenly going to care more because they have to change whether they like it or not?

          I agree the dynamic would change. The crooks who run (and win) would steal as much as they can as fast as they can instead of waiting 30 years. And the lobbyists would end up running things even more than they do now anyway since they’re the only ones who would know how to get things done.

  2. Napoleon says:

    A lawyer’s job is to advocate for his client. I don’t know if it’s a winning argument, but it’s better than saying to your client, “I got nothing here.”

    In the end, each day, 50% of all lawyers in the courtroom are losers. You have a 50-50 chance of your argument and that’s pretty good odds.

    • John Konop says:


      In all due respect the macro conviction rate is around 85 percent. Obviously that numbers changes based on the defense. Your 50-50 point does not add up, it is more about the case and affordability to good legal council.

      • Napoleon says:

        John Konop…there are two lawyers, a prosecutor and a defense attorney. There is a trial. One will win and one will lose. The line is, on any given day in court, 50% of all lawyers are losers. Even if the prosecuting attorney wins 99.9% of the time, it does not change that 50% of the lawyers in that courtroom were losers.
        Now, I realize that does not take into account if that defendant had 3 lawyers to the one prosecutor, where 75% of the lawyers were losers, but like most general “laws” or “truisms,” it will not fit each and every real life situation.

        • John Konop says:

          In all due respect that is completely illogical. That would be like saying when division 1 powerhouse football team plays a D 2 School that both teams have 50 50 chance of winning since they both have coaches. You may be a good lawyer, but you are way over your head with math.

          • Napoleon says:

            No John,

            Two lawyers walk into a courtroom. One will win, one will lose. That means 50% of the lawyers in that trial were losers and 50% were winners.

            I’m not saying over time, law of averages, abilities of both lawyers, etc.

            Let’s go with schools. Two teams come out on the field. One will win, one will lose. That means on THAT DAY for THAT GAME 50% of the teams on the field were winners and 50% losers. It does not matter that the winning 50% won every game that season and the Vegas odds makers put the chances of that team winning well over 50%.

            • John Konop says:


              In all due respect you just failed statistics/research methods. You just missed the same question 3 times, even with the answer in front of you.

              • Napoleon says:

                This is not statistics John. We are also not forecasting odds here.

                You are sitting in the courtroom watching a trial. There are two teams, a plaintiff and a defense. The jury has one question to answer. The come back with a verdict, “We the jury finds for the…”

                One team lost the case, one team won. What percentage of teams won in that court and what percentage of teams lost?

              • John –

                Y’all are talking apples and oranges. He is not talking about probability, but simple ratios. If you have 2 contestants and only one winner, that means 50% lose (1/2) and 50% win (1/2). Probability would be a totally different ballgame. Using your ballgame situation, the D1 school would have a 99% chance of winning, but still only 50% (half) of the teams playing would actually win.

                • John Konop says:


                  …….You have a 50-50 chance of your argument and that’s pretty good odds…..

                  This was his comment not mine. His comment is wrong anyway he spins it. No apples or oranges, just basic math.

                  • John Konop says:

                    As I said no debate here!

                    Definition of odds

                    1.chances of something happening: the likelihood or probability that something will occur, sometimes expressed as a ratio such as 10 to 1
                    2.predicted chances in betting: a ratio of probability given to people placing a bet, usually the likelihood of something happening, or of a competitor, team, or animal winning
                    3.handicap or advantage in competition: an advantage or handicap given to a person, animal, or team in a sporting contest, to equalize the chances of winning

                    • My point is that both of you are talking about two different things. He is talking about half the lawyers lose on a case, and half win. That is indisputable. He is using the wrong terminology for what he is trying to argue, though, as it does not equate to “odds.”

                      Now, in terms of odds, it would not be 50-50, so you are right there. Jury selection, lawyer experience, and the actual case itself will skew it in favor of someone.

                    • Napoleon says:

                      Actually, for that part of my statement, I was trying to channel my inner Yogi Berra. A 50-50 chance is not good odds, it’s even odds.

                      Konop still spent all of this time arguing half of all winners isn’t 50%.

  3. sunkawakan says:

    I suppose that it depends on whether looking for sex is considered a normal function in a bathroom.

  4. CobbGOPer says:

    So isn’t this what Nathan Deal did? Campaign cash used to defend against his House Ethics investigation? Which apparently isn’t illegal for GA purposes… What’s the difference between how this money was used and how Deal used his campaign dollars inre: the House Ethics probe? Seriously, because I’m not a lawyer.

    Paging Randy Evans.

    • Stefan says:

      Well since Evans was counsel for the campaign, I doubt you’d get a neutral answer. CobbGoper is referring to this story:

      Is it “usual and necessary”? That’s merely the first step of course. I wrote a post on how you can tell here:

      Additionally, I cannot tell without more digging if the money paid was from the Congressional account or the Gubernatorial or whether or not money was transferred from the first to the second.

      It matters a bit because there is a separate section on raising money for legal defense under federal law that doesn’t exist in Georgia.

      Anyway, it doesn’t seem like the defense arose out of the some aspect of the campaign – even though it was certainly necessary for Deal to defend himself. Georgia doesn’t have a lot of reported decisions on this – neither does the FEC really, so the best you can do is an educated guess. But that’s whether it’s legal, not what is the difference.

      The difference is that Craig’s actions may have arisen out of an official duty (travelling to represented area), in which case he is supposed to be reimbursed by the US Gov’t for the money he had to spend – not use his campaign account. Deal’s alleged actions did not arise out of his duties as a Congressman. (But if the campaign account used was not the Congressional one that may not matter. ) That was roundabout but there it is.

      Oh, and the State Ethics Board has no money.

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