With Rep. Joe Sestak's (D-Pa.) defeat of Sen. Specter (D-Pa.) in the Democratic Senate primary, the controversy over the alleged job offer made to Sestak last year by someone in the Obama White House is once again heating up.
After essentially ignoring this potentially serious violation of federal law for months, some members of the mainstream media are finally asking questions. Sestak was asked about it by David Gregory on NBC's "Meet the Press" on Sunday. Sestak used this job offer as a campaign issue to elicit support during his primary run, but now practically refuses to talk about it and won't say which White House staffer made the offer. The public has a right to know exactly what happened, and whether a crime was committed.
White House Press Secretary Robert Gibbs has dismissed the issue saying that "Lawyers in the White House and others have looked into conversations that were had with Congressman Sestak, and nothing inappropriate happened." Senior Obama adviser David Axelrod has said the same thing, although he has admitted that if it did actually occur, it would "constitute a serious breach of the law." But what is very curious (and revealing) about this is the refusal of Gibbs or anyone else at the White House to say exactly what was said in the conversation and who made the offer – we are apparently just supposed to accept their self-evaluation that nothing "inappropriate" happened.
There are obviously three possible scenarios here. Rep. Sestak is either 1) telling the truth, 2) lying, or 3) the conversations didn't take place in the manner that Sestak has recalled. In all three cases, however, we need a full accounting of what occurred because each scenario has important political and legal implications. Sestak, as an elected official, also has an ethical obligation to reveal the details of what happened, particularly if a crime was committed. His position that he has "said all I'm going to say on the matter" does not meet his fiduciary responsibilities to the public or to Congress.
Some are claiming that even if Sestak was offered a high-ranking job in exchange for dropping out of the Senate race, it would not have constituted a crime and is just business as usual in Washington. Others, including some lawyers who should know better, have said that it is not illegal to offer someone a job in exchange for political support. Those claims are wrong and show confusion between two very different situations: one is business as usual; one a potential crime.
The key distinction between what is legal and what is illegal under federal law is outlined in an opinion issued by the Office of Legal Counsel (OLC) at the U.S. Department of Justice in 1980. What is perfectly legal and what happens all the time in Washington is individuals being offered jobs because of their past political activity. Thus, when a new president is elected and takes the oath of office, he has several thousand patronage jobs to fill in the top ranks of the executive branch. Those jobs are filled based on a mix of professional competence and past political activity and support for the president or his party. That process does not violate federal law. Thus, if someone in the White House simply offered Sestak a job – like Secretary of the Navy – and did not tie the offer to anything related to the Senate race, then, that would arguably constitute business as usual.
However, what is illegal and not normal practice in Washington is to promise federal employment to an individual in exchange for future political activity. 18 U.S.C. § 600 prohibits public officials from using government-funded jobs or programs to advance their partisan political interests. The statute makes it unlawful for anyone to "directly or indirectly, promise any employment, position, compensation, contract, appointment, or other benefit" to any person as a "consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party...in connection with any primary election" (emphasis added). As the OLC opinion says, § 600 "punishes those who promise federal employment or benefits as an enticement to or reward for future political activity, but does not prohibit rewards for past political activity." Future political activity would arguably include dropping out of a contested primary to benefit the White House-endorsed candidate (here, Senator Specter).
Thus, if we take Sestak at his word that he was offered a position in the Obama administration if he quit the race against Specter, then whoever made that offer in the White House has committed a violation of the law. It does not matter that Sestak did not take up the offer – the statute prohibits making such an offer in the first place – there is no requirement even for a tentative agreement. Like the crime of solicitation, the crime happens once the words trip off the mouth of the person making the statement.
And contrary to what some may think, there have been prosecutions under § 600, including a reported case from 1980 out of Minnesota in which a husband and wife who worked for a federally funded state agency were convicted for hiring secretaries to engage in partisan political work.
Another federal statute, 18 U.S.C. § 595, prohibits any person employed in any administrative position by the United States "in connection with any activity which is financed...by the United States...us[ing] his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of...Member of the Senate." Any position offered to Sestak in the administration would be financed by the United States, so offering such a job in order to interfere with the election process for the Senate race in Pennsylvania would undoubtedly constitute a violation of this statute on its face.
These are not complex statutes – they are easy to understand and straightforward in their application, which is probably why the White House is being so careful not to explain what exactly happened and what was really said. What is also true is that we have a congressman admitting that such an offer was made to him by someone in the White House, which is more than sufficient evidence to justify a preliminary investigation being opened by the Justice Department. In fact, any such admission would prompt any responsible prosecutor to open at least a preliminary investigation; otherwise, he would not be fulfilling his duty and obligation to enforce all federal laws.
The Justice Department has sent a letter to Rep. Darrell Issa (R-Calif.) rejecting his request for a special counsel to investigate this matter. But the Justice Department's letter gave no indication that Justice has opened its own investigation. Any such investigation would normally be conducted by the Election Crimes Branch of the Public Integrity Section in the Criminal Division. Its long-time head, Craig Donsanto, someone who was well respected throughout the election community, recently retired. He has been replaced by another career lawyer, Richard Pilger. Any recommendation that Pilger makes to open an investigation, if he were to make one, would have to be approved by the political head of the Criminal Division, Lanny Breuer, who served as a special counsel to Bill Clinton. Given Breuer's political obligations and loyalty to the Obama administration, he would seem to have a conflict of interest in making this decision.
As everyone will recall, Rep. Pat Toomey challenged then-Republican Senator Arlen Specter in the Pennsylvania Republican Senate primary in 2004, losing by only a very small margin. Specter was backed by most of the Republican establishment, including Senator Rick Santorum and President George Bush. If Pat Toomey had claimed that someone in the Bush White House had offered him a position in the Bush administration if he withdrew his primary challenge, there would have been howls of protest from the mainstream media – it would have been front page news in the New York Times and the Washington Post. The press would have been relentless in their demands that all information about the offer be released, including the identity of the White House staffer and whether the president knew about or approved the offer. And if the so-called "politicized" Bush Justice Department had refused to open an investigation or appoint a special counsel, it would have been a far-reaching scandal trumpeted every day by the Fourth Estate.
The fact that Justice is refusing to appoint a special counsel and has said nothing about opening an investigation in this case, despite the clear evidence of a possible violation of federal law, is a sign that the administration may simply ignore this matter and do nothing about it. And they may be able to do that with no consequences if the press lets the matter subside and goes back to ignoring it like they have until now. Just another example of how politics rather than justice seems to drive law enforcement decisions in this administration and the double-standard that the media has applied to the Obama Justice Department.
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation.
First appeared in The Orange County Register