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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