The Dubious "Anthony Weiner's Accuser Was Actually Over 16" Story, And Why I'm Very Skeptical

Popehat 2017-06-22

Friday I wrote about Anthony Weiner's federal plea to transferring obscene material to a person under 16, and offered some comments on how it was unusual and notable.

Since then, a site called "Who What Why" has published a story claiming that the minor in the case was 17, not 15, and that she initiated contact with Weiner, possibly as part of an anti-Clinton conspiracy. The Hill — a more mainstream publication — has picked up the story.

I'm very skeptical, based on my familiarity with federal criminal investigations and procedure.

Who What Why doesn't offer any evidence or documents supporting their claim — only an assertion that they used "sophisticated forensic techniques" to uncover her true identity and verified her age through court records and social media posts — which they don't display.

Who What Why's treatment of the relevant law is incorrect and, frankly, sloppy.

It should be noted that prosecutors, judges and juries view interactions with minors differently, based on the precise age of the minor: 15 is worse than 16, which is worse than 17, the real age of the girl for much of the period during which she interacted with Weiner, and her age when she approached the media.

Well, maybe, but that's not the point. It's the law — the written statutes — that treat different ages differently. That's the meaningful distinction. Here, the victim's age is meaningful because the statute under which Weiner entered a plea — Title 18, United States Code, section 1470 — expressly requires the victim to be under 16.

Whoever, using the mail or any facility or means of interstate or foreign commerce, knowingly transfers obscene matter to another individual who has not attained the age of 16 years, knowing that such other individual has not attained the age of 16 years, or attempts to do so, shall be fined under this title, imprisoned not more than 10 years, or both.

So how could the government have charged Weiner under this statute, and how could Weiner have pled guilty, if the victim wasn't under 16? Who What Why offers a rather ambiguous handwave:

Under North Carolina law, at 16, she was in fact above the age of consent. Ultimately, this would not matter because Weiner pled guilty to being under the impression that she was only 15, and she was still below the federal age of consent — the standard applicable in the case. Regardless of what he stipulated as part of his plea agreement, among the trove of incriminating messages it published, the Daily Mail provided no evidence that the girl actually told Weiner she was 15, only that she was in high school.

This is shockingly badly researched nonsense. Weiner was charged and pled guilty explicitly on the theory that the girl was actually 15. To prosecute him on the theory "she was 17 but he thought she was 15," you'd have to prosecute him for an attempt or a conspiracy, not a substantive violation of the statute, which expressly requires the victim to be under 16. That's not what happened here. Who What Why's "federal age of consent" reference is gibberish — they are apparently referring to the restrictions of this particular statute governing sending obscene materials.

Plus, if this “lie,” misrepresentation of fact, or material inaccuracy found its way into a government pleading in what became the United States v. Weiner case, it would have legal consequences. But we may never know, because the way Anthony Weiner’s plea deal is structured inhibits further inquiry by dispensing with the matter while revealing no details about the underlying history.

This, too, is gibberish. Anthony Weiner's plea is structured like any other federal plea; it doesn't "inhibit further inquiry" in any way different than any plea, and further details will in fact be explored through the sentencing process.

The proposition that the government and Weiner proceeded knowing that she was actually 17 is therefore absolutely false. It is possible, in theory, that the victim and her family concocted a grand deception about her age, and fooled federal investigators, federal prosecutors, and Weiner's lawyers — thus committing multiple federal felonies. But it's extremely unlikely. The investigation would naturally involve confirming the victim's age through records, because her age would be an important element of proof. There would be multiple interviews with the victim and her parents. It's highly likely that the investigators and prosecutors would scour her social media presence to find anything that may blow up their case. God knows investigators and prosecutors are sloppy and rush to judgment some of the time, but in such a high-profile case, where they can expect extreme scrutiny, they would have done what they could to avoid embarrassment. Moreover, the probation officer writing Weiner's Presentence Report would typically communicate with the victim to add any information about victim impact, and it would be common for the prosecutors to seek an (anonymous to protect her identity) statement from her to support their sentencing arguments, so more scrutiny would be expected.

So. I'm deeply skeptical about a claim, based on undisclosed evidence, that Who What Why has proof that the victim was not under 16 and that the investigators, prosecutors, and Weiner's lawyers were all deceived throughout an intensive process. It's an extraordinary claim requiring some sort of evidence, and Who What Why is not inspiring confidence getting fairly simple legal issues badly wrong.