This weekend, the U.S. Secret Service interviewed the Virginia couple who somehow made their way into last week's White House state dinner. Two U.S. senators also joined the chorus calling for the couple, Michaele and Tareq Salahi, to face criminal charges.
What law would prosecutors turn to if they decided to pursue a case?
The clearest choice might well be what’s usually called the false-statements statute, or 18 USC Sec. 1001, which allows for the prosecution of anyone who “falsifies, conceals, or covers up by any trick, scheme, or device a material fact” or “makes any materially false, fictitious, or fraudulent statement or representation.”
Prosecutors have turned to the law in a wide variety of cases. Before his indictment was thrown out, then-Sen. Ted Stevens (R-Alaska) was found guilty under the law on charges stemming from his Senate financial disclosure forms. Former General Services Administration chief of staff David Safavian was found guilty under the law a year ago for failing to disclose to the FBI or on a financial disclosure form that he took a golfing trip with lobbyist Jack Abramoff.
Lawrence Robbins, who represented Safavian, said the false-statements statute could be a natural tool for prosecutors, though the case could cause potential embarrassment for the Secret Service.
“Something tells me that this would not be a particularly attractive case for the government to bring, because the way you would defend such a case, if the facts warranted, is to show the circumstances that would reveal that the people who were supposed to be asking the right questions did not ask the right questions,” said Robbins, a name partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber.
Central to any such case, Robbins said, would be what questions the Salahis were asked and what answers they gave. If they lied and said they were invited when they were not, then the government might have a strong case. On the other hand, “Did somebody fail to ask them the right questions and they got through?” Robbins said. “That can make a world of difference.”
Even if they did not outright lie, the government could argue that the couple had a duty to say something more than they did and that, by not doing so, they made a false representation. In that scenario, Robbins said, prosecutors would have to show that the couple had a “duty to speak.”
Bryan Cave partner Daniel Schwartz said the government might consider at least one other factor before it pursues a false-statements case. “While perhaps they could make out a criminal charge,” he said, “it might not be worth it to give them some more time in the limelight.”
UPDATE (5:58 p.m.): Another frequently discussed possibility is that the Salahis could be prosecuted for trespassing. But Mark Goldstone said that is unlikely, given the facts that have come out so far and the D.C. law on trespassing.
Goldstone, a lawyer, estimates he's represented almost 1,000 people arrested at the White House, most in connection with political protests. The D.C. trespassing law, he said, is designed to prosecute "failure to leave a place after you’ve been told that your right to be there has lapsed." No one has said that the Salahis were told to leave and refused.
"I think it has to be more than just, 'Well, you knew you had inadequate credentials,'" Goldstone said, adding that none of the cases he has seen are quite like this one.
The D.C. law is Title 22, Section 3302, available here.