J$P Instant Transcript! Were Rep Foley's actions criminal? The Judge rules.

From The Big Story, October 4 2006:

JOHN GIBSON [FOX NEWS]: The Justice Department is asking House officials to preserve all records related to Foley's email conversations with House pages. This comes as Foley now says he was molested as a child by a clergyman. Foley is facing potential charges here on both a state and federal level, but could these molestation claims help his defense? And what punishment, if any, will those who knew about the emails but did nothing now have to face? Let's ask Fox News Senior Judicial Analyst, Judge Andrew Napolitano, who once upon a time was a page himself.

JUDGE ANDREW NAPOLITANO: A long time ago.

GIBSON: Long time ago. So first of all, the actual charges Foley may face is a complicated situation. What is it?

NAPOLITANO: It's complicated because the three states involved--California, where he may have met a page (one of the emails says had a nice time in San Diego, or words to that effect), Louisiana, where the complaining page lived, and Florida, where Congressman Foley may have sent some of the emails or text messages from--along with the federal government all changed the laws involving the use of internet and the punishment for soliciting minors to commit sexual acts, within the past five years. So after looking at these emails and text messages and deciding, either FBI agents or prosecutors in those three states, if in fact they constitute a crime, they have to determine what was the law at the time the emails were sent.

GIBSON: You've looked at all these instant messages. Do they constitute solicitation?

NAPOLITANO: I think they do constitute solicitation for the purpose of the federal statute, for the purpose of Louisiana, and for the purpose of California. Florida, which of course is where he's from and where he may very well have sent a lot of these, is a more serious problem for him. Because the Florida statute prohibits sending anything indecent to a minor. Florida does not require that the purpose of the email be to entice a minor into a sexual act. It is clear beyond dispute that this stuff is indecent. It's far worse than indecent. So Florida has the easiest case against him. John, it could be ten years per text message sent. So his potential legal jeopardy is extraordinary here, since we know that there were dozens and dozens and dozens of messages.

GIBSON: He's already floated a defense that he was molested as a teenager by a clergyman. Is that a defense?

NAPOLITANO: No. It may be laying the grounds for I didn't know what I was doing, I didn't know right from wrong. It would be a classic insanity defense. Hard to believe, because he sent some of these text messages from the floor of the House of Representatives while he was engaged in a vote. Is he actually going to argue to a jury that as a Congressman while voting he was insane? I don't think they'll buy that.

GIBSON: Do the House Congressional leaders, namely Republicans Hastert and the rest, do they face some legal jeopardy?

NAPOLITANO: They have, believe it or not, the right to remain silent. They were not required to report him to the FBI. They may face extraordinary political jeopardy for having allowed a child predator to work among their midst, but they did not commit a crime even if they knew about this stuff for years.

GIBSON: So the punishment would be entirely political. That is, expressed at the polling place?

NAPOLITANO: Correct, correct. Lose their jobs in the leadership or even lose their jobs in the House, but not face criminal prosecution.

GIBSON: Judge Andrew Napolitano, as always Judge, thank you very much.