Federal statutes seem to contradict a memorandum from the White House counsel released on Friday that claimed that no law was violated when Rep. Joe Sestak was offered a government post in exchange for dropping out of the Pennsylvania Democratic Senate primary against Sen. Arlen Specter.
White House Press Secretary Robert Gibbs blithely dismissed the issue for months. “Lawyers in the White House and others have looked into conversations that were had with Congressman Sestak, and nothing inappropriate happened,” he said. But the two-page memorandum admitted that White House Chief of Staff Rahm Emanuel asked former President Bill Clinton to offer Sestak a position on a presidential or senior executive branch advisory board. Apparently Gibbs and the White House expect us to accept their self-investigation and self-evaluation that nothing “inappropriate” happened.
During his primary run, Sestak sought to elicit support by alleging that someone in the White House offered him a job last year if he dropped his challenge to Specter. However, he practically refused to talk about it and or say who made the offer. As an elected official, Sestak had an ethical obligation to reveal the details of what happened. His position that he had “said all I’m going to say on the matter” did not meet his fiduciary responsibilities. The public has a right to know exactly what happened, and whether a crime was committed.
Some claim 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—that’s just “business as usual” in Washington. But such claims confuse two very different situations: one which is, indeed, business as usual; the other, a potential crime.
A 1980 opinion issued by the Office of Legal Counsel (OLC) at the Justice Department outlines the key distinction between what is legal and what is illegal under federal law. What is perfectly legal and what happens all the time in Washington is individuals being offered jobs for past political activity. A new President 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 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 a federal job or appointment to an individual in exchange for future political activity. 18 U.S.C. § 600 prohibits the use of government-funded jobs or programs to advance partisan political interests. The statute makes it unlawful for anyone to “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.” 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 in order to benefit the White House-endorsed candidate (here, Sen. Specter).
It does not matter that Sestak did not accept the offer or that the offer was, according to the White House memorandum, for an uncompensated federal appointment. 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 offer.
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 administration position offered to Sestak would be financed by the United States, so Rahm Emanuel offering such an appointment through Bill Clinton to interfere with the Senate race in Pennsylvania would also constitute a possible violation of this statute.
These are not complex statutes. They are easy to understand and straightforward in their application. That’s probably why the White House has taken so long to answer these charges. But their answer, contrary to their claim, does not clear Rahm Emanuel.
With the White House admission that an offer of a federal appointment was made in order to interfere with a Senate primary election, there is more than sufficient evidence to justify the Justice Department opening a preliminary investigation. In fact, such an 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 the allegation. But Justice’s letter gave no indication that the department has opened its own investigation. Normally, such an investigation would be conducted by the Public Integrity Section in the Criminal Division. Any recommendation to open an investigation would have to be approved by the political head of the Criminal Division, Lanny Breuer. Given Breuer’s political obligations and loyalty to the Obama Administration and Rahm Emanuel, he would seem to have a conflict of interest in making this decision.
Many will recall Rep. Pat Toomey’s challenge to then-Republican Sen. Arlen Specter in the 2004 primary. Specter was endorsed by President George Bush. If Pat Toomey had claimed that someone in the Bush Administration had offered him a position if he withdrew his primary challenge, the mainstream media would have howled with outrage. The press would have relentlessly demanded release of all information about the offer, including the identity of the White House “fixer” and whether the President knew about or approved the offer. And had the Bush Justice Department refused to open an investigation or appoint a special counsel, the Fourth Estate would have feasted on the scandal.
Justice’s refusal to appoint a special counsel or open its own investigation of the Sestak imbroglio, despite the clear evidence of a possible violation of federal law by a White House chief of staff and a former President, signals that the administration hopes to simply ignore this matter until it goes away. That could well happen if the press lets the matter slide.
If that’s how the sleazy Sestak saga ends, it will be another instance of 1) the administration letting politics, rather than justice, drive its law enforcement decisions and 2) the media applying a toothless double-standard in its coverage of the Obama Justice Department.
Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation and a former Justice Department official. Charles Cully D. Stimson is a Senior Legal Fellow at Heritage