After Tareq Salahi and his wife Michaele slipped into the reception before President Obama's dinner, possibly without an invitation, criminal charges have become a popular topic of speculation. Jonathan Turley, law professor at George Washington University, thinks the Secret Service will push for charges to be filed, and Republican Sen. Jon Kyl told Fox News that "they should be in some way brought to justice here, again, as an example to others not to do it." CBS News' Bob Schieffer agrees.
One relevant statute is 18 USC 1001, a catch-all law that makes it a crime to lie to federal officials. It's a crime to cover up a material fact or make "any materially false, fictitious, or fraudulent statement or representation."
Note the trap that this poses to the unwary. Let's say the Secret Service is interviewing you about a crime that took place near your home while you were at home, and you're entirely innocent. To buttress your story, you might tell a fib about being elsewhere that evening -- and, presto, you're now a criminal because you lied to the Feds.
If, upon entering the White House, the Salahis informed the Secret Service uniformed agents that they were on the guest list, and they knew they were telling a lie, that would seem to fall under 18 USC 1001. On the other hand, if the Salahis merely showed their IDs and sauntered through the metal detector, that would place them on more solid legal ground. (This is what lawyers call a fact-specific analysis.)
Or prosecutors could claim, as attorney Lawrence Robbins suggested to the National Law Journal, that the couple had a "duty to speak" up and inform a White House guard that they were not on the guest list.
Another possible pitfall is the interviews that the Secret Service reportedly conducted with the Salahis through last weekend. Federal criminal law is intricate and complex, and missteps by interviewees are common. That's why one white collar defense attorney, Solomon Wisenberg of Barnes & Thornburg, has written that "barring special circumstances, I never let a client with the slightest degree of criminal exposure submit to an interview by government agents."
18 USC 1001 is what ensnared Martha Stewart, even though she was interviewed by the FBI with her attorney sitting next to her. Stewart was convicted of making false statements, not of insider trading, and her conviction was upheld on appeal.
There's also 18 USC 1036, which makes it a crime to, by fraud or false pretense, enter any property "belonging in whole or in part to, or leased by, the United States." It seems to be intended to criminalize unauthorized access to airports and seaports (think terrorist attacks), but there's no obvious reason it wouldn't apply to the White House.
A third section of the federal criminal code, 18 USC 1752, might be more of a stretch. It creates a crime for anyone who knowingly and willfully enters "a restricted area of a building or grounds where the president or other person protected by the Secret Service is or will be temporarily visiting."
The District of Columbia criminal code does contain a special section devoted to crimes and trespass on the U.S. Capitol Building. One section (DC ST 1981 § 9-112) says, for instance, it's a crime to: "Enter or to remain upon the floor of either House of the Congress, to enter or to remain in any cloakroom or lobby adjacent to such floor, or to enter or to remain in the Rayburn Room of the House or the Marble Room of the Senate, unless such person is authorized, pursuant to rules adopted by that House or pursuant to authorization given by that House..."
I wasn't able to find a similar section dealing with the White House, although as an aside there is one section of the city code dealing with "filth or excrement of any kind" (DC ST 1981 § 22-3112.1) that in 1988 a court ruled applied to someone throwing blood on the White House pillars.
The general-purpose trespass statute (DC ST 1981 § 22-3102) in the District of Columbia covers anyone who, without "lawful authority," enters "any public or private dwelling, building, or other property, or part of such dwelling, building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof."
That's been used frequently in White House incidents. Courts have ruled that a Secret Service officer has "lawful authority" to eject people from the grounds, and they've upheld the trespass conviction of a protester who entered as part of a tour and then knelt on the ground after being asked to stand up.
All of the cases I've read deal with run-of-the-mill fence jumpers (for which there is, of course, a blog), or visitors on a White House tour who broke away and did something like kneel to pray or unfurl a protest banner on the lawn. There seems to be no precedent for prosecuting someone as a trespasser based on crashing a party at the executive mansion; nor did Jeff Gannon ever face any legal hassles for attending White House press conferences as a journalist even though he wasn't exactly one at the time.
If the Salahis had crashed a highbrow private party in the Virginia hunt country, would senators be going on national television to call for the couple to be locked up? But because this incident has embarrassed the Secret Service, it may become charged as a federal crime (chalk it up as another example of how broad federal law has become).
Another way to look at the escapade is this: Because the Salahis entered, left, and did no harm, they usefully exposed a security weakness that now can be fixed. Besides, if the Secret Service wants to investigate someone, they might want to look into why their own agents on the presidential protective detail were using unencrypted pagers to discuss threats against the president and the location of Air Force One on September 11, 2001.
Declan McCullagh is a senior correspondent for CBSNews.com. He can be reached at firstname.lastname@example.org and can be followed on Twitter as declanm. You can bookmark Declan's Taking Liberties site here, or subscribe to the RSS feed. Declan previously was chief political correspondent for CNET, a reporter for Time, and Washington bureau chief for Wired.