Can The White House Crashers Be Criminally Charged?

Tareq and Michaele Salahi are likely to discover the meaning of the common criminal law adage “one day on the cover of Time, next day doing time.” The Secret Service is likely to push for the criminal investigation of the White House crashers this week. The question is what such charges might look like.

In criminal law, small is beautiful. While some clients come to you with established notoriety, you often work to keep clients out of the news. Many prosecutors relish publicity in criminal cases and such notoriety will often push them to seek more severe punishments. Michaele and Tareq Salahi seem to have gone out of their way to maximize their chances for a criminal charge by posting their photos on her Facebook page, click here. As with the parents of “Balloon Boy,” this apparent effort to gain access to a reality show will more likely gain access to a criminal cell. While most judges would not see this case as one requiring jail time, the likely criminal charges have maximum penalties of five years and the embarrassed Secret Service is likely to want a pound of flesh after this prank.

This is not the first time that people have entered restricted areas or entered the White House without permission. Jimmy Carter was once surprised by a wandering visitor. Most such cases are handled as harmless error or curiosity. The publicity behind this stunt, however, is likely to push prosecutors toward criminal charges to deter other social wannabes.

The charges, however, are not obvious and depend on what the couple told security to gain entrance to the White House. Yesterday, after a remarkable delay, the couple came forth with a claim that they were invited, here. Whether or not they have secured counsel, that explanation will now be their defense to any charges since public statements (like their Facebook posting) can be admitted in court.

One obvious possibility is 18 U.S.C. § 1036, “Entry by false pretenses to any real property, vessel, or aircraft of the United States or secure area of any airport or seaport.” This provision states:

Whoever, by any fraud or false pretense, enters or attempts to enter–
(1) any real property belonging in whole or in part to, or leased by, the United States;
(2) any vessel or aircraft belonging in whole or in part to, or leased by, the United States;
(3) any secure or restricted area of any seaport, designated as secure in an approved security plan, as required under section 70103 of title 46, United States Code, and the rules and regulations promulgated under that section; or
(4) any secure area of any airport,
shall be punished as provided in subsection (b) of this section.
(b) The punishment for an offense under subsection (a) of this section is–
(1) a fine under this title or imprisonment for not more than 10 years, or both, if the offense is committed with the intent to commit a felony; or
(2) a fine under this title or imprisonment for not more than 6 months, or both, in any other case.

(c) As used in this section–
(1) the term “secure area” means an area access to which is restricted by the airport authority, captain of the seaport, or a public agency; and
(2) the term “airport” has the meaning given such term in section 47102 of title 49.

The question is how the couple entered the White House. Were they simply waved in or did they lie about their status? Is it an act of “fraud or false pretense” to stand with other well-dressed people and enter the White House?

If false claims were made, the prosecutors could try to bring a charge under a favorite criminal provision for Washington scandals: 18 U.S.C. § 1001. This false statements provision is often used against political figures like Scooter Libby who tried to lie their way out of a scandal. The provision states:

Whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully–
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;shall be fined under this title, imprisoned not more than 5 years . . .
The government might try to pair these two theories to trigger the § 1036 felony. For example, they could argue that the initial fraudulent trespass on to government property in violation of § 1036 occurred with the intent of then lying to the government to get access to Obama in violation of § 1001, triggering the felony provisions of § 1036(b)(1) in addition to the felony provisions of § 1001.

In the end, it is important to remember that, while juvenile and embarrassing, this prank was harmless and even the Secret Service admits that the President was never in harm’s way. What is most striking, however, is the fact that (but for the boastful posting of the pictures by the couple) the Secret Service would not have known that these two were in the White House. That raises obviously troubling security questions, including the danger of strangers in placing electronic devices or causing other mischief in the White House.

As with “Balloon Boy,” the incident says something quite sad about our society and the desire for celebrity status. However, there is a danger of over-reacting to the incident. Congress particularly should think hard before passing any new law, which could cause difficulties for reporters and others. This was a baffling breach by the Secret Service, which deserves every bit of the embarrassment caused by the couple. However, a senseless act of vanity and stupidity should not be the impetus for new legislation.

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