Former Republican Congress-man Mark Foley's online conversations with teenage male pages have all the trappings of a political scandal, but making a federal case out of the sexually charged exchanges could prove difficult, veteran FBI investigators say.
Foley, a six-term Republican from Florida, resigned abruptly as his e-mails and instant message transcripts surfaced. The chats discussed sexual acts and possible meetings with pages, according to ABC News, which first reported them last week.
With the FBI investigating Foley's behavior, his defense attorney, David Roth, said that the congressman never had sex or attempted sexual contact with a minor. Foley, who is being treated for alcohol abuse, was drinking when he had the explicit conversations, Roth said.
"Any suggestion that Mark Foley is a pedophile is false," Roth said on Tuesday at a news conference in West Palm Beach, Florida.
If Foley never had sex with a congressional page, then his case is in uncertain legal territory, said Ken Lanning, a retired FBI agent who served as one of the agency's leading experts on child exploitation.
"There are going to be some issues here in the gray area," Lanning said. "You may find this behavior repulsive, offensive or immoral. Whether it's a violation of law will be based on a precise reading of the law."
Congressional leaders, who called for an FBI investigation as Foley resigned, turned to finger-pointing over who knew what about Foley's behavior, when they knew it and whether anything was done to protect the teens.
One federal law enforcement official said the FBI reviewed some Foley-related e-mail in July but concluded that no federal law had been violated. The official, who spoke on condition of anonymity because the case is active, said agents are reviewing new evidence, including the instant message transcripts, to see if a law was broken.
FBI spokesman Richard Kolko said the agency is continuing its assessment.
In Florida, Roth said no law enforcement officials had contacted him. Foley has not been subpoenaed but voluntarily agreed not to delete any e-mails or instant messages from his computers, the lawyer said.
Some Democrats have claimed Foley might have violated the federal law used to prosecute Internet sex predators, but experts said it's not that simple.
On the surface, the chat transcripts released by ABC News look much like any of the explicit conversations the FBI has used as evidence in its many Internet sex stings.
In those cases, however, the sexually charged talk led to an arrest when adults arrived for real sexual encounters.
Graphic talk alone is rarely enough, said Joseph Dooley, a former agent who helped set up New England's first FBI unit targeting Internet predators. Many adults engage in explicit chats with undercover agents but never show up for the scheduled meetings, he said.
"We never charged anyone unless they actually traveled to have sex," Dooley said.
Investigators could consider federal obscenity laws, experts said, but the law prohibiting disseminating obscene material to children applies only to those under 16.
Benjamin Vernia, a former federal prosecutor specializing in such cases, compared Foley's online conversations with pages to "grooming," a law enforcement term for the way sexual predators bring along their underage victims. Grooming is a red flag for authorities, Vernia said, but it is rarely enough to bring charges.