The worst is not over for Sen. Ben Cardin’s (D-MD)
office, which was engulfed in a gay sex scandal involving one of his
aides. The staffer filmed himself having sex
in a Senate hearing room. It was posted on various gay sites, leading
to its very public revelation last Friday. The aide, Aidan
Maese-Czeropski, got fired
by Cardin’s office hours after this video went viral. This story
doesn’t end with this staffer’s termination. Now, there are legal
ramifications that must be considered and law professor Jonathan Turley alluded that criminal charges could be warranted regarding this unauthorized tryst in Hart 216:
Staffers have access into such rooms, but the question is
whether this unofficial use would constitute trespass. It also uses an
official area for personal purposes, though it is not clear if there
were any commercial benefits garnered from the video found on various
sites.
One obvious criminal provision under the D.C. code is Section 22-1312 for lewd, indecent, or obscene acts:
“It
is unlawful for a person, in public, to make an obscene or indecent
exposure of his or her genitalia or anus, to engage in masturbation, or
to engage in a sexual act as defined in § 22-3001(8). It is unlawful for
a person to make an obscene or indecent sexual proposal to a minor. A
person who violates any provision of this section shall be guilty of a
misdemeanor and, upon conviction, shall be fined not more than the
amount set forth in § 22-3571.01, imprisoned for not more than 90 days,
or both.”
The question is whether this is “in public” in a locked
committee room — any more than sex in a congressional office after
hours would be viewed as “in public.”
There are also provisions
concerning the misuse or damaging of government property such as Section
1361, which protects “any property” of the United States from willful
depredation or attempted depredation. “Depredation” is defined as the
act of plundering, robbing, pillaging or laying waste. However, mere
possession of such property is not viewed as depredation. United States
v. Jenkins, 554 F.2d 783, 786 (6th Cir. 1977).
There is also 18 U.S.C. 641 on the misuse of public money, property, or records:
“Whoever
embezzles, steals, purloins, or knowingly converts to his use or the
use of another, or without authority, sells, conveys or disposes of any
record, voucher, money, or thing of value of the United States or of any
department or agency thereof, or any property made or being made under
contract for the United States or any department or agency thereof; or
Whoever
receives, conceals, or retains the same with intent to convert it to
his use or gain, knowing it to have been embezzled, stolen, purloined or
converted—
Shall be fined under this title or imprisoned not
more than ten years, or both; but if the value of such property in the
aggregate, combining amounts from all the counts for which the defendant
is convicted in a single case, does not exceed the sum of $1,000, he
shall be fined under this title or imprisoned not more than one year, or
both.”
The Capitol police could argue that this constitutes purloining or using government property for personal purposes.
The
key factor is the fact that this videotape was made with the apparent
intent to publish or to distribute. Sex in congressional offices — by
both members and staff — have long been known to occur on Capitol Hill.
Yet, this was a public hearing room, albeit closed at the time, and a
tape made for what appears public viewing.
That brings us back to
trespass. The question may be whether this was access under legal
authority for a staffer. The Capitol police can argue that access to a
staff position does not mean a license for entry for any purpose. Under
18 U.S.C. 1752, trespass covers anyone who “knowingly enters or remains
in any restricted building or grounds without lawful authority to do
so.”
Whether any charges will be brought forward is another thing. I doubt
it, given the Democrats’ penchant for protecting their people, but it
calls into question the overly aggressive and outright lunatic obsession
the Justice Department has had on those involved in the January 6
incident. The charges called into question here apply to most of the
individuals caught just roaming the halls of the Capitol Building, and
they’re being arrested, charged, convicted, and given years’ long jail
sentences.
Cardin’s communications team is dealing with a
nightmare while their boss must suffer through a humiliating staffing
mishap, months away from retirement. Cardin has been part of public life
since 1967. This event will be how he’s remembered. It’s sad, but this
person was warned to tone down his social media posts. It’s not like
they should be shocked this happened.
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