As I said before, two names who are heavily involved in outing Gays who have the audacity to be Republicans, or who for or against legislation that is percieved to be “anti-gay” are John Aravosis and Mike Rogers. They have both been on a cusade for the last few years to threaten and intimidate Politicians in order to influence their voting on such things as the Marriage Amendment Act.

All throughout the afternoon I’ve been harvesting stories with these two and will not present a little background on what they are about to bring some things into focus.

First, this story in the Washington Blade, which ran in early July of 2004, details their work in threatening to out gay politicians would might vote for the Gay Marriage Amendment.

“The voicemail came on a Thursday afternoon, in between busy committee meetings and at the end of a hectic week for Senate staffer Jonathan Tolman. It was a confusing message ‚Äî the demands vague, the voice unidentified and unrecognizable.

The call had asked for “some updates” for an article involving Tolman, the staffer recalled, and left a number. Tolman simply assumed the caller wanted a revised version of a report on environmental policies he authored while working for a downtown Washington thinktank. As it turned out, that wasn’t the article in question.

Tolman, a senior aide for the Senate Committee on Environment & Public Works, chaired by conservative Republican Sen. James Inhofe of Oklahoma, was about to become the first Capitol Hill staffer publicly outed through a campaign led by two activists.”

More….

“Mike Rogers and John Aravosis, the two men loosely heading an ongoing outing campaign on the Hill. As the date nears for a Senate vote on the Federal Marriage Amendment, which would ban gay marriages in the Constitution, Rogers said the outings have picked up steam ‚Äî from 13 documented offices to nearly 20 currently on a target list provided by Rogers to the Blade.

In addition to Tolman, Rogers and Aravosis, working in tandem but not together, claimed in the last week to have outed via the Web Democratic Sen. Barbara Mikulski of Maryland and Republican Congressman Mark Foley of Florida.”

Now let’s discuss the theory. Foley has been in Roger’s sights since even before 2004, but specifically since 2004.

Now for Definition of a rather harsh and nasty word – BLACKMAIL. (Via EnCarta).

1. use of secrets to compel: the act of forcing somebody to pay money or do something by threatening to reveal shameful or incriminating facts about him or her.

2. coercion: unfair threatening or incriminating of somebody, as a way of achieving a result.

Now although not charged with it at the time, what Aravosis and Roger’s did was in fact blackmail, a point I made with a DOJ source of mine. However, he noted that the fact that they were threatening to out gay politicians isn’t in itself illegal UNLESS it was to influence US Legislation by “coercion or use of secrets to compel”.

But can Aravosis and Rogers be charged with blackmail for threatening to out a Congressman?

Professor Volokh explains:

“Here’s the puzzle, or, as it’s sometimes called, the Blackmail Paradox:

1. I am generally perfectly free to publish embarrassing information about you — in fact, I generally have the constitutional right to do so. Likewise, I am free to keep quiet about it.

2. I am generally perfectly free to ask you for money in exchange for my doing something (here, keeping quiet) that I have no preexisting legal obligation to do. (This distinguishes classic extortion, where I ask you for $10,000 not to burn down your store: Because I have a legal obligation not to burn down your store, it’s easy to explain why extortionate threats to burn down the store would be punishable. I will use “blackmail” to mean just threats to reveal information, not threats to commit illegal violence or property destruction.) I am also free to ask you to perform some service in exchange for my doing something that I have no preexisting legal obligation to do. I am even free to ask you to cast a vote in exchange for my doing at least some things (though not all things) that I have no preexisting legal obligation to do: For instance, a pro-choice newspaper editor may generally say that he will endorse a politican for reelection if the politician votes against an abortion restriction.

3. But if I ask you for money or a service in exchange for my not revealing embarrassing information about you (and recall that I have no preexisting legal obligation to keep quiet), then that’s a crime.

What’s the explanation? Legal scholars have debated this for decades, and to my knowledge have not come up with a perfectly satisfactory answer.

Now as I mentioned, the legal system often happily ignores conundrums such as this. Blackmail is a crime, and that’s that (and incidentally I agree on pragmatic grounds that it should be a crime, though I myself don’t have a good answer to the puzzle).

But sometimes this does raise some significant practical difficulties. Here are a few examples:

A. Say that during the Clinton-Lewinsky scandal, a publisher tells a Congressman “If you vote to impeach Clinton, I will publish information about your own sexual indiscretion.” That may well be blackmail (many blackmail laws cover attempts to get people to do things as well as just attempts to get money).

But if the publisher starts a series of articles exposing the sexual indiscretions of Congressmen who have stated their intention to vote for impeachment, that’s perfectly legal journalism ‚Äî even though the implication is clearly “If you vote against impeachment, we won’t run this article about you.” Likewise if the publisher asks the public for information that might prove to be fodder for such articles. (During the scandal, Larry Flynt’s behavior was fairly similar to that in this hypothetical.)”

Hmmm, seems vague. But this from a followup post clears things up a bit:

“Is the threatening letter posted on the BlogActive website a crime? First, one must look to federal or state statutes to determine their scope. Some blackmail or extortion statutes, such as the federal Hobbs Act, punish only threats seeking property. And the US Supreme Court took a narrow view of property in Scheidler v. NOW II (2003). [DISCLOSURE: I consulted and worked on the brief for NOW in Scheidler v. NOW I, which NOW won in the Supreme Court, and I mooted the NOW attorneys in NOW II, which NOW lost. The case is currently before the Supreme Court yet a third time in Scheidler v. NOW III.] Some state statutes punish both obtaining property and compelling action under the same extortion statute. Other state statutes divide the traditional crime of extortion into one covering property and another covering compelling action (often called criminal coercion).

So this threatening letter would probably not be extortion under the Hobbs Act because it seeks to compel action (voting), not to obtain property. There may be other federal statutes it might violate; I don’t know.

But the posted letter may well be extortion or criminal coercion if committed in many, perhaps most, states. Whether it is a crime turns primarily on the closeness of the nexus between the threat (exposure) and the action sought (voting against Alito).

Typically, in order to avoid a violation of an extortion statute, the threat must be very closely linked to the underlying claim. Clearly asking for much more than you are owed (such as in the Jackson/Cosby case) under a threat of exposing embarrassing behavior was enough to lead to Autumn Jackson’s conviction.

Similarly, some statutes recognize a defense of seeking only restitution or seeking only to right a wrong in circumstances related to the underlying claim. It would seem to be this defense that the threatener at BlogActive would want to try to claim. It appears that in Mike Rogers’s mind, a male Senator having sex with another man in the bathroom of Union Station is directly related to that Senator’s vote confirming Justice Alito. Although there isn’t enough case law here to give a definitive answer, I suspect that a court would not find the nexus between voting for Alito and gay sex in a public bathroom to be close enough to allow Rogers to use that defense. The nexus in the Jackson/Cosby case and in the Harrington case would seem to have been closer, and both those defendants nonetheless had their convictions affirmed.”

So whether or not either could be charge remains to be seen as I can tell it is on the table. But when you other possibilities such as witholding evidence (hanging on to emails/IM chat transcripts), whether or not one thought it wasn’t necessary to alert authorities that illegalities or improprieties were being committed, then the weight on the bar of justice gets a lot heavier.

A developing story which I cannot get into at this point shows that possibly one or both of the subjects went farter than just threats and intimidation. I will try to keep my readers up to date, but most of what I find I will be forwarding to the FBI and the DOJ and will not comment on here for obvious reasons.

Like I said, I don’t know if laws have been broken, but I do know that “Zeal sometimes consumes those who grasp it”.

This isn’t about Foley, he’s gone and good riddance. But what I’m finding out about what happened behind the scenes so far I find even more foul.

We are going to get to the bottom on this story.

UPDATE: More blackmailing and coersion going on.