WASHINGTON -- Unless new evidence emerges showing former Rep. Mark Foley acting upon some of the messages he sent underage pages, legal experts say he may not be in criminal jeopardy at the federal level but could face state charges.
"For the most part, the law is going to allow you to be a dirty old man," says Roscoe C. Howard, the former U.S. attorney in Washington, D.C. "The reality of the law here is, if you're going to put somebody in jail, they have to do something. If they punished us for what we thought and most things we say out loud, there'd be a lot of people in jail."
The legal vulnerability changes, however, if there's been physical contact or an exchange of pornographic material through the Internet, Mr. Howard says.
Mr. Foley, through his lawyer, has denied having sexual contact with any of the minors.
The Federal Bureau of Investigation said it was first notified of Mr. Foley's electronic communications with pages in July, and turned them over to three separate units at its Washington, D.C., field office to examine: the cybercrime squad, adult obscenity squad and the crimes against juveniles squad. None of the agents who examined the initial batch of emails saw a federal crime, said an FBI official familiar with the investigation.
However, revelations of other, more sexually explicit communications between Mr. Foley and the pages has spawned a full-fledged investigation by the agency. Wednesday, the Justice Department announced that it had notified the House counsel that it wanted Mr. Foley's computer preserved for evidence.
Among the issues being examined: Did Mr. Foley have obscene electronic conversations with anyone under 16? Did he transmit pornographic images to a minor or suggest a juvenile engage in sexually explicit conduct and photograph it for him?
Those acts would violate a variety of federal sexual exploitation and obscenity laws.
Agents also are examining whether Mr. Foley enticed or pressured minors to rendezvous with him across state lines to meet for sexual activity. One FBI official familiar with the investigation said that for the enticement to be considered criminal, it has to be more substantial than words. "It has to be a ticket or sending money for a plane ticket, something like that," the official said.
In an exchange with a former page in California, Mr. Foley seemed to press the teen to state what the two would do if they got together for dinner -- and investigators are likely to zero in on that exchange.
"If Mr. Foley went to San Diego with the intent of having sex with a minor that would possibly fulfill the intent of the statute," says Carmen Hernandez, a Washington defense attorney, referring to the federal statute that deals with enticing or pressuring a minor to travel across state lines for sex with an adult. From the messages released so far it is unclear if Mr. Foley went to San Diego.
Still, it would be tough to make a federal case. One defense to such a charge would be that he wasn't traveling specifically to have sex with the page since he was traveling to attend the Republican Convention, Ms. Hernandez said.
At the state level, Mr. Foley's actions may make him much more vulnerable to criminal charges.
Earlier this year, Brian J. Doyle, then-deputy press secretary for the Department of Homeland Security, was arrested at his Maryland home and charged under Florida statutes for emailing sexually explicit messages to a Polk County, Fla., officer whom he thought was a 14-year-old girl. Mr. Doyle pleaded no contest last month to seven counts of using a computer to seduce a child and 16 counts of transmitting harmful material to a minor. His sentencing is next month.
Washington, D.C., has similar statutes, which apply even if explicit messages don't include images, as they did in Mr. Doyle's case.
In addition, Mr. Foley and a page talked about drinking at the representative's home. If authorities could show Mr. Foley bought alcohol, he could be charged with contributing to the delinquency of a minor. The penalty is a maximum fine of $1,000 and up to 180 days in jail. "All he'd have to do is buy a bottle of liquor. That would be enough. Then he's done something," Mr. Howard said.
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