Should Al Franken really have fallen on his sword, resigning his Senate seat in December 2017 following a spate of minor sexual impropriety accusations, and mounting pressure from his colleagues? Seven US senators who once thought yes now think no – the Vermont senator Patrick Leahy calls it one of the “biggest mistakes” of his 45-year career. Franken, who no longer has a career and thus plenty of time to cultivate regrets, has come to believe that “differentiating different kinds of behavior is important”.
So believes the masterful investigative reporter Jane Mayer too, and she returns to The Case of Al Franken in the latest New Yorker. To cut to the chase: “Almost NOTHING His Main Accuser Said checks out,” as Mayer tweeted about the piece. The accuser in question is Leeann Tweeden, the conservative talkshow host pictured with Franken in a 2006 United Service Organizations (USO) tour photo, she asleep, he leering, outstretched hands a millimeter or so from her chest.
Mayer, a dogged unearther of facts, subjects Tweeden’s account of Franken’s supposed harassment to forensic analysis – she even gets her hands on the metadata from the camera – interviewing dozens of people who were on the scene, who worked with Franken, and who were in the know about the orchestration of the photo’s release. She uncovers a series of misstatements, implausibilities, and (no surprise) intimations of a political hit job – names like Roger Stone, Alex Jones and Sean Hannity hover in the background. Tweeden was herself a Trump supporter and a “birther” who’d publicly demanded to see Barack Obama’s birth certificate.
Those who think no sexual accusation made by a woman can possibly be untrue, even those by birthers targeting Democrats, will probably remain unimpressed by the new information Mayer reveals. For my part, I find myself wondering what would happen if all the less famous men and women accused of similarly ambiguous crimes– ribaldry gone awry, creeping people out in vaguely sexual ways – had their own Jane Mayers to investigate.
As someone who’s written about #MeToo and campus sexual assault, I’m on the receiving end of plenty of such stories (an increasing number of which are from women, by the way). I’m frequently left frustrated and often livid at the absurdity of the accusations and the summary justice that follows. One case that particularly rankled, involving Harris Fogel, formerly a tenured professor of photography at the University of the Arts in Philadelphia, actually has some interesting similarities to Franken’s. Though he is hardly as well-known as the former comedian-senator, Fogel’s work is in the collections of the Metropolitan Museum of Art in New York and the Bibliothèque Nationale in Paris. Like Franken, Fogel was a dispenser of social kisses. He may also have had a “naturally outgoing and joking manner”, according to his lawsuit, that was – given the current state of heterosexual rancor – likewise mistaken for sexual predation.
At a photography education conference in Las Vegas in March 2016, Fogel spotted an acquaintance, Jennifer Little, in the conference hotel lobby. Little is a tenured photography professor at a California university, and they’d known each other for several years. Little had asked Fogel for job advice and reference letters in the past. It was daytime. He greeted her with a kiss.
In December 2017, 20 months later, came the allegation: Little contacted the Title IX coordinator at UArts, where Fogel taught, asserting that the hotel lobby kiss had been forcible and nonconsensual, though she hadn’t complained about it to Fogel at the time. Indeed, they proceeded to attend various functions together; Little even posted some of Fogel’s conference photos of her on her Facebook page.
As in Franken’s case, there was soon a second allegation, filed the day after Little’s. This complainant was an aspiring photographer named Anne-Laure Autin, who’d also met Fogel in March 2016, at a different photography conference in Houston. Fogel had been assigned to give Autin a 20-minute informal critique of her portfolio, which took place in the public setting of a hotel ballroom. Afterward, he handed her some literature about the UArts photography program, and reached in his jacket pocket to pull out his business card. Except the card he pulled out wasn’t his business card, it was his hotel-room keycard, which was similar in size. He said: “Here is my business card – oops – my room key.” They both laughed.
Although Autin seems to have initially regarded Fogel’s remark as a joke, she later discussed the incident with Little, who was also at the conference, and who disclosed that Fogel had “forced himself physically on her” a few weeks earlier at the previous conference.
In receipt of two complaints against Fogel, the university launched an investigation, and in January 2018 – despite the fact that Fogel disputed Little’s account, and the only corroboration of her story was the other complainant, and the two women had clearly conferred on their complaints – determined Fogel had “forcibly” kissed Little and harassed Autin.
After a 22-year career, Fogel’s employment was summarily terminated by UArts’ board of trustees without so much as a hearing or a chance for Fogel to respond to the investigator’s report.
I suppose most people reading this will be thinking: “There has to be more to it than that!” Well, yes, there were vague allegations that Fogel had engaged in “typical male verbal flirting behavior”, which isn’t the kind of thing that can really be disproven. It also reeks of gender bias. Or perhaps, as might be said of Franken too, the outcome was “political” – Fogel’s lawsuit suggests that he was deemed an obstructionist by his superiors. Who knows? Academic politics are said to be the most vicious kind, though they are vicious all over.
To be clear, the details given here on Fogel’s case are the facts alleged in his lawsuit (which a federal judge recently ruled may proceed). I have not independently confirmed or disproved them. That would take the talents of a Jane Mayer, equipped with a New Yorker expense account. However, I’m enough of a crack reporter to note that it was exactly three days after Franken announced he was resigning that Jennifer Little contacted the UArts title IX coordinator, whose subsequent investigation was conducted as the Franken drama was playing out in the national news.
Sure, there were plenty of other high-profile cases that winter, though typically not over such trivial stuff. Were Fogel’s accusers tuned into the Franken story? Was the investigator, who, Fogel’s lawsuit alleges, didn’t bother to investigate any potentially exculpatory evidence? In short: did the Franken resignation help lower the bar on what now constitutes harassment and assault?
I myself thought at the time that if Franken had actually groped women during photo ops, as was alleged, he was right to resign – jokey photos are one thing, ass-grabbing is another. Mayer’s reporting leaves me less sure – is an arm around someone’s waist really a sexual incursion? But in late 2017, we were all pretty on edge, I think, combing our pasts for dormant memories of assaults and affronts, and there were so many stories – too many to make sense of. It was an off-with-their-heads moment, and for a while that felt great.
But there were also opportunists “telling their truths”. There was failed distinction-making and political expediency, and the impossibility of sorting motives from facts. That’s what’s starting to get unraveled now, in deep reporting like Mayer’s, as well as in the courts. Campus findings based on “victim-centric” approaches to sexual misconduct are increasingly being overturned by judges, and employers who were over-hasty with the axe are being forced into settlements.
The fallout isn’t going to be pretty, especially as the accused, when permitted, air their side of the story. It’s certainly not going to be unifying. And I suspect there’s plenty more fallout to come.