Hans A. von SpakovskyManager, Election Law Reform Initiative and Senior Legal Fellow Edwin Meese III Center for Legal and Judicial Studies
Imagine this hypothetical: An independent oil company executive accuses BP of offering him a job if he’ll stop competing against a BP subsidiary — a potentially illegal dealing under federal criminal law. BP denies the accusation for months. Then, suddenly, its in-house counsel releases a two-page memo summarizing the results of an internal “investigation.” The memo claims that, although the CEO’s chief of staff asked a former BP CEO to approach the individual and offer an “advisory” position, the “allegations of improper conduct rest on factual errors and lack a basis in the law.”
Oh, and by the way:
● The ex-CEO was charged with perjury and obstruction of justice in an infamous case, but the matter was dropped when he agreed to give up his law license;
● No one involved in the inside investigation was examined under oath; and
● The memo is completely silent on the extent of the investigation (e.g., whether any written documents, phone logs, or emails were reviewed), whether BP’s CEO knew what his chief of staff was doing or whether he approved it.
Would anyone seriously believe such a superficial response should end the matter? That a report so transparently self-serving and inadequate would deter the Justice Department from launching its own investigation for possible criminal violations of the law?
Welcome to OfferGate, the low-boiling scandal over White House–directed efforts to entice Joe Sestak and Andrew Romanoff into dropping primary challenges to incumbent Democratic senators in Pennsylvania and Colorado by dangling job offers before them. We are being asked to accept the in-house (White House) counsel’s “investigation” and his self-serving assessment that there was no violation of the law as the final word on the issue. Just as incredibly, the JusticeDepartment , which has the exclusive authority to initiate criminal investigations, declines to open its own investigation and refuses to appoint a special counsel to do so.
Worse, the actions of Bob Bauer, the White House counsel, may actually impede any legitimate Justice Department investigation, should one ever occur. Two veterans of the White House Counsel‘s Office, William Burck and David Rivkin, observe that it was not Bauer’s “role to make such determinations, particularly when he is opining on the conduct of Chief of Staff Rahm Emanuel, to whom he reports, and a negative conclusion could damage the president for whom he works. This conflict of interest makes Bauer’s numerous lapses in normal investigatory procedure all the more troubling.”
Back to our hypothetical: Assume that, just before the memo was released, BP called the perjury-tainted ex-CEO into a meeting at corporate headquarters and also initiated conversations with the whistle-blowing executive’s brother (who also happens to be his lawyer). And that right after those meetings, the whistle-blower changes his story, saying he was offered only a minor “advisory” slot. The new story matches the storyline in the soon-to-be-released memo.
Query: Does this smell fishy? Most people would say yes.
Back to OfferGate: Bauer’s memorandum was released just days after Bill Clinton went to a White House meeting and Joe Sestak’s attorney brother talked with White House officials. Shortly after those conversations, Sestak started saying he was offered only a minor “advisory” slot — as per the memorandum — not a really juicy job as he had claimed repeatedly before. Looking at that highly suspicious sequence of events, most career federal prosecutors would immediately start looking at the provisions of 18 U.S.C. § 1512, which lays out the prohibitions against witness tampering.
Back once more to our hypothetical saga: Assume a second individual admits, after lengthy denial, that BP offered him three potential jobs if he would stop competing.
We see that in real life, too. Andrew Romanoff finally admitted the White House deputy chief of staff “suggested three positions that might be available” to him if he were “not pursing the Senate race.” The White House claims that Romanoff applied for positions during the transition when the Obama administration first took over — which is perfectly legal, and encouraged. Unexplained, though, is why they called with job offers almost a year later, and only after he announced that he was considering challenging a White House–endorsed candidate.
Most career federal prosecutor would view a second “Sestak moment” as indicating a pattern and practice of potentially unlawful behavior within the White House — all the more reason to open an investigation. One truly bizarre development in this scandal has been the reaction of some lawyers and politicians. NBC reports, “Many legal experts from both parties say the law, on its face, appears to prohibit what Obama operatives did. But they also say they doubt that what the administration did was illegal.” If offering someone a federal job conditioned on his withdrawing from a Senate primary violates federal law “on its face,” than how can it not be illegal?! In fact, the behavior described in both the Sestak and Romanoff situations may violate specific federal statutes that are intended to prevent, as the Office of Legal Counsel at the JusticeDepartment has said in the past, promising “federal employment or benefits as an enticement to or reward for future political activity.” Or as a court in Pennsylvania said, traffic in federal offices.
Pennsylvania governor Ed Rendell and others try to shrug off such behavior as “business as usual.” Maybe in Pennsylvania, but that doesn’t necessarily make it legal.
Others confuse this type of unlawful behavior with a perfectly legal practice: offering a position to someone for past political support. Rewarding individuals for past political loyalty is legit. But the law bars officials from using government jobs, paid for by the American taxpayer, as an enticement to get future political support or to achieve partisan political objectives.
Still others mistakenly claim that there have been no prosecutions under these federal statutes. They’re wrong. Prosecutions that may apply to this sequence of events have been made under the various federal statutes — including 18 U.S.C. § 211 and 18 U.S.C. § 600. True, no one at such a high level of government has ever been prosecuted under these statutes. But that does not mean a potentially blatant violation should not be investigated. That fact may also say more about the way individuals who are currently in the White House do business.
One final thought. There is clear evidence (including some in the White House memorandum) that the elements of a federal crime may have been met. Yet so far, the attorney general refuses to fulfill his ethical and professional duty to either initiate an investigation or appoint a special counsel to do so. Instead, the attorney general remains mute.
On the other hand, Attorney General Holder has announced a criminal investigation of BP despite the lack of evidence (or at least much less evidence) of any intentional criminal behavior by BP. Certainly BP (or its equipment subcontractors) may have been negligent or slipshod in what happened in the Gulf, and could end up with huge civil liabilities that may even bankrupt BP. But there is, as yet, no public evidence of an intent to commit a crime
But then, investigating BP, the grand villain of the moment, is politically advantageous to the Obama administration, while investigating itself for corruption is certainly not.
Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former Justice Department official. Charles Stimson is a senior legal fellow at the Heritage Foundation.