If Minnesota judge Charles Porter Jr. does the expected, he will refuse to let Senator Larry Craig take back his guilty plea for his now notorious men's room encounter with an undercover cop.
At that point, Porter will have saved Craig from yet another of the senator's bizarre errors in judgment.
Compounding his previous errors, the Idaho Republican this week sent lawyers to persuade Porter to undo his guilty plea and let him go to trial. As Craig says, he wants ``to clear my name.''
He probably doesn't mean he wants to clear his name of the taint of a disorderly conduct conviction.
He means, of course, he wants to clear it of any link to homosexuality. He will have a hard time doing that because technically, officially, he isn't charged with homosexuality. Technically, officially, it is no longer a crime in America to be gay. The U.S. Supreme Court said so ages ago, in 2003.
No, Craig was instead charged with being disorderly because the officer in the next stall took his peculiar hand and foot movements as a sexual come-on.
A bogus charge? You betcha, as they say here in Minnesota. There is simply nothing criminal about toe-tapping, shoe-to-shoe contact or someone putting his hand beneath a bathroom stall divider, as one of his lawyers, Billy Martin, told the judge at this week's hearing.
``None of those facts, in and of themselves, constitute a crime,'' Martin told Porter. It would be a ``manifest injustice'' to let the conviction stand, he argued.
He's right. But the law makes it almost impossible to set aside a guilty plea. And Craig had weeks to decide whether to admit guilt before he mailed in his plea, as the prosecution noted.
Since then, he has had weeks to think what might happen in the improbable event that he gets a trial.
Police would testify that closeted gay men (like Craig?) pose a menace when they troll public bathrooms for sex.
They might say that this particular bathroom at this particular airport had become famous on the Internet as a rendezvous point for men seeking men.
As for Craig's actual conduct, remember that he exposed no part of his body that is normally covered, nor did he fondle or grope or grab anyone.
But the prosecutor in the case, Christopher Renz, can make even the running of a hand beneath a stall divider sound like soft-core porn.
Stroking the Divider
``Repeated stroking of the stall divider,'' Renz called it at this week's hearing, ``each stroke showing more of his left hand.''
Then there would be the chance that the judge might let the prosecution put on the stand the man who told the Idaho Statesman he had sex with Craig in the men's room of Union Station in Washington.
Does Craig really want that?
In his defense, Craig might raise his ``wide stance'' to explain away the apparent attempt at footsie. And it would be ridiculed, as it has been already, mercilessly.
The best Craig could get is a jury focused only on the facts of what he did, a jury that labors to see whether that conduct met the legal elements of disorderly conduct.
Throw in a little reasonable doubt, and Craig just might get acquitted.
So what? He would stand acquitted of disorderly conduct, which no one cares about anyway, aside from legal wonks like me. There would be no verdict on whether he committed homosexual conduct, which is all his Grand Old Party and his ``family values'' constituents care about.
Muddying His Name
But there would have been lots of testimony that would do more to muddy his name than clear it.
Fortunately for Craig, Porter seemed to be buying none of Martin's argument, except for when he said the law makes it ``next to impossible'' to set aside a guilty plea.
Fortunately for Craig, the judge argued with Martin on matters large and small.
When Martin said his client wanted to plead innocent, Porter interrupted to chide him on a point that was clearly meant to be more rhetorical than legal. There is no such plea in Minnesota, the judge told Porter.
Here, as elsewhere, you are either guilty or not guilty, he said.
It's an obvious point, and yet it is one that Craig seems to have missed. There is no way he will be declared innocent, even if he wins a trial and is found not guilty.