Sure, It's Sleazy. But Is It Illegal?

Politicians caught up in sex scandals have something more to look forward to than embarrassment and potential loss of office. They may face legal scrutiny as well.

Enlarge this image toggle caption Gerry Broome/AP Gerry Broome/AP

"The partisans on both sides no longer seem satisfied to have a scandalized opponent brought to the public square for a tar-and-feather session," says Larry J. Sabato, director of the University of Virginia Center for Politics. "The public, or some of it, wants to pursue legal charges against certified political sleazebags."

Rep. Anthony Weiner, the New York Democrat whose inappropriate self-portraits have dominated news coverage over the past couple of weeks, will now be the subject of an official House investigation. The ethics committee will look into questions of whether he used office equipment to send out pictures of himself or directed staff to coach women on their statements.

The Weiner inquiry comes in the wake of last Friday's indictment of former North Carolina senator and Democratic presidential candidate John Edwards for alleged campaign finance violations regarding payments to his mistress. Last month, Nevada Republican John Ensign resigned his Senate seat in the face of investigations by the Justice Department and the Senate Ethics Committee into payments made to his mistress.

Though the real offense may be sex, the investigations often center on tangential misdeeds like financial improprieties. "The pattern makes a pretty strong case that people are more willing than in the past to think about sex scandals in terms of the criminal laws that may have been violated," says Benjamin Wittes, senior fellow and research director in public law at the Brookings Institution. "We have a string — a rather long string — of cases in which the nonsexual misconduct associated with extramarital affairs does seem to be at least considered in the rubric of possible criminal, professional and ethical violations."

Dating Back To Clinton

It wasn't always so. Politicians used to be able to count on a good deal of discretion from what is now known as the mainstream media. News of their affairs wasn't likely to emerge unless some editors decided they had somehow violated the public trust or broken the law.

Crime And Punishment Mark Sanford: After his affair with an Argentine woman was exposed in 2009, the Republican governor of South Carolina reimbursed the state for travel expenses. An impeachment resolution was blocked but the state House voted to censure him in 2010. Sanford was term-limited out of office as of January. Eliot Spitzer: In 2008, a U.S. attorney's office announced it had found no evidence of misuse of public funds and therefore would not pursue criminal charges against the former New York governor. The Democrat had resigned eight months earlier when it was revealed he had used the services of a prostitution ring. David Vitter: The Louisiana Republican senator faced an ethics complaint in 2007 after turning up in the phone records of a prostitution ring. The statute of limitations had passed, so he faced no criminal charges. He was re-elected in 2010. Mark Foley: Both the FBI and the Florida Department of Law Enforcement conducted investigations into the Florida Republican's sexually explicit emails. Neither found criminal wrongdoing, but FDLE complained that Foley and the House had kept them from examining computers and "critical data." Foley had resigned the day news of the emails broke, in 2006. — Alan Greenblatt

Even those whose affairs were exposed were not generally subject to official investigation. "Going back to Gary Hart, I don't think anyone suggested at any point that there be an investigation into his behavior for inappropriate conduct as a U.S. senator," says Tom Fiedler, dean of the College of Communication at Boston University.

As an editor at the Miami Herald, Fiedler helped break the story of Hart's affair with Donna Rice, which sank the Colorado Democrat's shot at the presidency in 1988.

A decade later, during the long investigation and eventual impeachment of President Bill Clinton for lying about sex with a White House intern, independent counsel Kenneth Starr was subject to considerable criticism in the popular media and even law review articles for his zealous pursuit of the matter, which grew out of an investigation that initially turned on a land deal.

Starr was castigated as being partisan, vindictive and "gratuitously prurient," in the words of Joe Klein, now a columnist with Time. Many people thought that Starr had unfairly turned a personal failing into fodder for unnecessary investigation. In his autobiography, Clinton happily cites Starr's poor showing in polls at the time.

Setting The Precedent

But despite the lambasting that he took, Starr helped change expectations about whether such matters are fit subjects for prosecution, says Wittes, author of a book about Starr's investigation.

"The legal precedent was set by the impeachment," says Fiedler, the Boston University dean. "What we are seeing are more aggressive efforts to link what previously might have been thought to be terrible judgment relating to somebody's sexual proclivities to legal wrongdoing."

There may also be political motivations involved in pressing for prosecution, suggests Sabato, the University of Virginia government professor. A politician's tearful news conference "doesn't last long enough," he says. A legal investigation — or even the threat of one — can keep a story that is damaging to a politician and his party in the news for days or weeks to come.

That may be why California Democrats, for instance, called for an investigation into questions of whether former GOP Gov. Arnold Schwarzenegger had abused his office in any way regarding to the child he fathered out of wedlock, says Fiedler.

The public, or some of it, wants to pursue legal charges against certified political sleazebags.

"What's driving this particular issue is the desire to continue to keep these issues in front of the public," he says. "As long as the media is fixated right now on Weiner, in many ways that keeps the Democrats back on their heels. That's a good thing for Republicans."

Zero Tolerance

House Democrats sought to distance themselves from Weiner, with Nancy Pelosi, the leader of the caucus, quickly calling for the official House investigation. But Pelosi and other Democrats have wavered over the question of calling for Weiner to step down.

That stands in some contrast to recent stances taken by House Republicans. Speaker John Boehner of Ohio remembers that House Republicans lost their majority in 2006 shortly after revelations that Florida Rep. Mark Foley had sent lewd instant messages to teenage pages. That helped fuel complaints that the GOP had fostered a "culture of corruption."

As a result, Boehner has warned members of his caucus that they can count on zero support in the face of evidence about personal transgressions. Two Republican representatives have resigned over the past year immediately after word of their sexual indiscretions emerged.

Chris Lee of New York resigned in February after having sent a shirtless photo of himself to a woman in response to a personal ad on Craigslist. Last year, Mark Souder of Indiana resigned after admitting to an affair with an aide in his district office.

"Pelosi does not take the same stand," says Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington.

Paying Some Kind Of Price

Not every politician who is caught lying about some sort of sexual activity steps down. And Wittes, the Brookings Institution scholar, cautions against expecting official investigations in every case.

Many politicians have resigned from office to avoid further scrutiny. Resigning might be part of deals cut with prosecutors or simply remove them from congressional oversight. "Weiner, if he would resign, it would be over," says Sloan.

But there does seem to be an increasing interest in subjecting more cheating politicians not just to public shaming but official investigation. Aside from providing fodder for partisan opponents, legal proceedings offer some reassurance that the transgressor won't get away scot-free, Sabato says.

Political sex scandals come and go so quickly that yesterday's scoundrels are often able to resurrect themselves and turn their saga into a story about revival. Sabato notes that Sen. David Vitter, the Louisiana Republican found to be the client of a Washington prostitution ring, was easily re-elected last year. And former New York Gov. Eliot Spitzer, who resigned amid a prostitution scandal, "got his own well-paid CNN show," Sabato says.

Bringing legal charges against philandering politicians, Sabato says, "may be the only way to get them to pay a serious price for their sins. It certainly increases their quota of suffering, if nothing else."