What Fresh Hell Is This?

June 6, 2010

Jack Kelly Sunday

It's like clockwork. A story bubbles up in the conservative press and Jack Kelly regurgitates it onto the pages of the P-G. The column this week is on, as you might guess, "Sestak-Gate."
For months, the White House stonewalled inquiries about whether Mr. Sestak had been offered a federal job in exchange for dropping his challenge to Sen. Arlen Specter in Pennsylvania's Democratic primary. But on May 28, White House Counsel Robert Bauer issued a statement that said:

"The White House Chief of Staff enlisted the support of former President Clinton who agreed to raise with Congressman Sestak options of service on a presidential or other senior executive branch advisory board."

By stressing the offer was made by Mr. Clinton, who is not a member of the administration, and was for a non-paid job, Mr. Bauer's statement seemed contrived to get around 18 USC 600 and 18 USC 595, which make it a felony to offer a government job as a quid pro quo for a political favor.

The number of people who actually believe all of this is roughly akin to the number of people who believe President Clinton was telling the truth when he said: "I did not have sex with that woman."
Gratuitous jab at the Clenis aside, there are actually a lot of people who don't think a crime was committed here. Attorney type people. Even this attorney type person who was George W. Bush's chief ethics counsel from 2005 to 2007. On his blog, Richard Painter posted this:
The press is reporting continued controversy -- and threats of a Congressional ethics compliant -- over the White House having previously offered a political appointment to Congressman Joe Sestak “in return” for his agreeing not to run in the Pennsylvania Democratic primary against Democratic (formerly Republican) Senator Arlen Specter. Whatever offer the White House made, it didn’t work, and Sestak went on to win the primary.

“Nice try” is what I would say to the White House. I would prefer if the White House were to stay out of Democratic primaries and focus on the tasks at hand. Then again, President Bush occasionally intervened in Republican primaries (including on behalf of Senator Specter in 2004). The less partisan politics in the White House the better (I would like to see the President abolish the White House Office of Political Affairs). This, however, is nothing new and it hardly rises to the level of a major ethics controversy.

The allegation that the job offer was somehow a “bribe” in return for Sestak not running in the primary is difficult to support. Sestak, if he had taken a job in the Administration, would not have been permitted to run in the Pennsylvania primary. The Hatch Act prohibits a federal employee from being a candidate for nomination or election to a partisan political office. 5 U.S.C. § 7323(a)(3). He had to choose one or the other, but he could not choose both.

The job offer may have been a way of getting Sestak out of Specter’s way, but this also is nothing new. Many candidates for top Administration appointments are politically active in the President’s political party. Many are candidates or are considering candidacy in primaries. White House political operatives don’t like contentious fights in their own party primaries and sometimes suggest jobs in the Administration for persons who otherwise would be contenders. For the White House, this is usually a “win-win” situation, giving the Administration politically savvy appointees in the Executive Branch and fewer contentious primaries for the Legislative Branch. This may not be best for voters who have less choice as a result, and Sestak thus should be commended for saying “no”. The job offer, however, is hardly a “bribe” when it is one of two alternatives that are mutually exclusive.
In the comments, he even addressed 18 USC 595:
This provision could be interpreted to prohibit any official decision that is motivated by a desire to affect the outcome of an election: tax cuts, construction projects in certain districts, other government contracts that bring money into certain districts, hiring decisions, military deployments, etc. Such an interpretation does not hold water because much of what elected officials and the people who work for them do is motivated by elections. Trying to sort out whether the motivation was principally political would immerse the courts into political questions in which they have no business.

The only workable application of the statute -- and the context in which the statute is actually enforced -- focuses on objective bright lines such as official capacity endorsement of a candidate, use of government funds for partisan political activity, etc. The subjective, motivation approach to interpreting the statute does not work and has not been implemented.
And 18 USC 600:
This statute also could be interpreted broadly to prohibit political appointments being given after an election to campaign workers in part because of their campaign work. It is not interpreted and certainly is not applied in that way. The statute can be applied when there is an explicit quid pro quo. If you do this (political work), we will do this (government job). I doubt there is any precedent for applying this to a request that a prospective appointee not participate in a partisan election as a candidate. Indeed, as I have explained before the Hatch Act prohibits a full time Executive Branch employee from running for office in a partisan election. The White House ethics lawyer or someone else will ask all successful job applicants to stand down from candidacy for elected office.
This from the White House Chief Ethics Counsel from 2005-2007. So while Jack ends his column with this:
But as Mr. Nixon could have told Mr. Obama, it isn't the crime that does you in. It's the cover-up.
We can ask, "what crime?" When George W. Bush's ethics counsel says it's a stretch and that no bribe occured, what crime was committed?

As opposed to say, torture and war crimes.

As I wrote before, this is all about going after Sestak. For a conservative like Jack, who undoubtedly would favor Pat Toomey, that's a no-brainer.

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