GOP Seeks Special Prosecutor To Probe Sestak Job Offer

In the latest sign that the political controversy over whether or not Joe Sestak was offered a job to induce him to drop out of the race against Arlen Specter, seven Republican Senators have asked the Attorney General to appoint a Special Prosecutor:

In a letter to Attorney General Eric Holder today, all seven Republicans on the Senate Judiciary Committee “urge the appointment of a special prosecutor to investigate Congressman Joe Sestak’s claim that a White House official offered him a job to induce him to exit the Pennsylvania Senate primary race against Senator Arlen Specter.”

The seven — Sens. Jeff Sessions of Alabama, Orrin Hatch of Utah, Chuck Grassley of Iowa, Jon Kyl or Arizona, Lindsey Graham of South Carolina,  John Cornyn of Texas and Tom Coburn of Oklahoma — allege that the offer would appear to violate federal criminal laws, including 18 U.S.C. 600, which prohibits promising a government position “as consideration, favor, or reward for any political activity” or “in connection with any primary election or political convention or caucus held to select candidates for any political office.”

Rep. Sestak, D-Penn., who defeated Specter in the primary last week, told Comcast’s Larry Kane in February that the White House had offered him a position in exchange for not challenging Specter. White House senior adviser David Axelrod said on Monday that White House lawyers had looked into it and judged everything “perfectly appropriate.”

In all likelihood, there was nothing even remotely illegal here, It seems hard to believe, for example, that there would have been any conversations between Sestak and the White House that would have come anywhere close to approaching what would have been necessary to constitute a violated of the Federal bribery statute, or the statute which makes it a crime to exchange a “thing of value” in an effort to secure a public office, or the statute which makes it a crime to offer a public office in exchange for “political activity.” It’s far more likely that this offer, or whatever it was, occurred the way these things always to in Washington; feelers were sent out, inquiries were made, but the idea that someone called Sestak up and said “drop out of the race and we’ll make you Secretary of The Navy” is just too absurd to believe.

It’s becoming clear, though, that this isn’t a story that could have a life of it’s own regardless of the legal issues involved. That’s why the White House needs to be more forthcoming, and why many Democrats are now saying that Sestak needs to explain himself:

Frustrated by the ongoing distraction, Democrats are stepping up their calls for Rep. Joe Sestak (D-Pa.) to resolve the flap surrounding his claim that the White House offered him a job in exchange for dropping out of the Senate primary.

Several Pennsylvania Democrats, including Gov. Ed Rendell, called on Sestak to better explain himself so that his campaign and the White House can move beyond the matter, which has drawn increased coverage in the eight days since he defeated Sen. Arlen Specter (D-Pa.) and has led to sharp Republican criticism.

“I think he should be more precise, and I think the White House should also give a little more detail,” Rendell told POLITICO.

Rendell joined the ranks of Senate Majority Whip Dick Durbin (D-Ill.), who said Tuesday that Sestak needed to explain what he was offered to get out of the Pennsylvania Senate primary, in which the state and national Democratic establishment were lined up behind Specter.

Assuming he was actually ever explicitly offered anything, that is. Frankly, I think that what we’re dealing with here is a case where Sestak has exaggerated the story to a significant degree, partly because it played well as part of his appeal to Democrats upset with the White House’s backing of a former Republican. If there was  a conversation, I’m betting it went something like the way Rendell hypothesizes:

Rendell, a strong Specter supporter, emphasized that he had no inside knowledge of what went on between Sestak and the White House but wagered a guess about what transpired: He speculated there most likely was a conversation and a request for Sestak to withdraw from the race against Specter but Sestak perhaps misinterpreted the offer.

“I’m sure the White House said, ‘We value you; we value your experience; you’ve got much to offer, given the type of experience you have,’” Rendell speculated. “Joe may have misinterpreted that as [a reference to the] Navy. I think that’s probably where the truth lies.”

And there would be nothing illegal about that, of course.

Appointing a special prosecutor would be just silly at this point, but Sestak and the White House both just need to come clean, otherwise this will be an issue that Republicans will use against both of them as the 2010 elections approach.

Update: Richard Painter, who served as Chief Ethics Lawyer for two years during the Bush Administration, doesn’t find anything about the Sestak story that arises to the level of a legal problem:

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.

Some have suggested that Sestak disclose the details of his discussions with the White House about an Administration job.  Generally, such discussions are highly confidential, as employment negotiations often are (the Bush Administration took care to prevent leaks about potential appointees and we were usually successful).  Although Sestak has no legal obligation of confidentiality, he should get permission from the White House before disclosing further details.  If the White House were to consent to disclosure, that would be the exception rather than the rule.  At this juncture, disclosure would probably help defuse the controversy, but this is a call for the White House to make.

At this point, I think disclosure is the easiest way to put this story to rest once and for all.

FILED UNDER: Barack Obama, Campaign 2010, Politicians, US Politics, , , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Alex Knapp says:

    I’m still trying to figure out how this is even possible, given that the Secretary of the Navy was nominated prior to Arlen Spector becoming a Democrat….

  2. Alex,

    That does poke a big hole through the theory that it Navy Secretary was being offered to Sestak, it’s also my understanding (although I think James has more info on this than I do) that Sestak would not have been eligible for the position anyway because he had not been retired from active duty long enough.

    Sestak has never come out and said that it was the position he was referring to either, but that’s just a further example of the pussy footing he’s been doing about this issue.

  3. Steve Plunk says:

    Perhaps it was a position as undersecretary or something similar. Like you say we can’t know until someone talks about it and no one is talking. That’s why at least the threat of a special prosecutor is reasonable and justified.

  4. Wayne says:

    Alex
    There is nothing that prevents Obama from firing the current Secretary of the Navy. Most likely it would have been a “I have step down to spend more time with his family” type of deal.

    Doug
    You have anything to back that up. From what I have seen that is not true.

  5. Zelsdorf Ragshaft III says:

    Doug, would you have called the Watergate breakin a fact finding mission? I know you don’t see anything wrong there, but a former Navy Admiral (usually people not prone to lie or exaggerate) who is now a Congressman state clearly, twice, he was offered a job by someone in the White House to drop out of the primary for the Senate race in PA. Considering the importance of the position Sestak is running for, this issue cries out for a special prosecutor.
    I am not a lawyer Doug but I pay attention. You might not think it violates any law, but then you must not be familiar with USC 18, sec. 600. What Sestak stated, twice, is either a lie or an accusation of a felony. I do not think White House lawyers or shit house lawyers should investigate this.

  6. Zelsdorf Ragshaft III says:

    I just read what you wrote again Doug. I cannot believe the blatant disregard of our laws you display. What you stated is our government is committing federal felonies all the time. I assure you, if Bush had offered, or anyone in his administration had offered a candidate to drop out of the running for an congressional office in exchange for a federal job, the hounds of hell would have been released. I hope you do not need examples of this. It is Plame is the nose on your face. Try reading U.S.C 18, sect. 600. Then repeat you think this takes place all the time.

  7. I assure you, if Bush had offered, or anyone in his administration had offered a candidate to drop out of the running for an congressional office in exchange for a federal job, the hounds of hell would have been released.

    You mean like when this happened:

    A Nexus search turns up numerous examples. In 1981, President Reagan offered S.I. Hayakawa, then California’s senior senator, a job if he declined to run for reelection. We know this because Reagan’s chief political adviser admitted as much on the record.

    In 1997, then-Massachusetts Attorney General L. Scott Harshbarger negotiated a Justice Department post while he decided whether to run for governor. The Clinton White House did not want him to make that bid — they wanted to clear the field for Rep. Joe Kennedy.

    (Remember when William Weld was nominated to ambassador to Mexico? Same reason, same motivation. Jesse Helms scuttled this, but for reasons having nothing to do with presidential political interference.)

    More recently, after Rep. Ben Gilman found his congressional district eliminated by redistricting in 2002, the White House tried to persuade him from challenging another Republican congressman in another district by considering him for an administration position. Karl Rove repeatedly intervened in Republican primaries. And Tim Pawlenty is not a senator because Rove urged him to run for governor instead.

    This happens in Washington all the time, it’s horse trading, and it’s not illegal.

    And yes, I have read the statutes

  8. Juneau: says:

    You mean like when this happened:

    All of the examples cited are from an article in the Atlantic, and they appear to be misleading. Hayakawa didn’t get a job with Reagan’s administration, and Harshbarger didn’t get a job with the Justice department. The citation is misleading when it states that he “negotiated” a job with the Justice Department.

    The article in the Atlantic sounds suspiciously to me like someone using language that is technically correct, but factually misleading. Where, in the cited examples, have the individuals themselves affirmed that they were offered the referenced employment?

  9. Alex Knapp says:

    Doug,

    What incentive does the Administration have to talk here? There’s almost certainly no laws broken. And Sestak’s pussy-footing indicates, to me, more that the idea of a job was floated rather than there being any actual job offer. (In other words, he put his foot in his mouth.) But for the White House to come out now and say “Joe Sestak was wrong, we didn’t offer him a job.” means that they’re calling Sestak a liar and risking a Senate seat in November.

    On the other hand, letting the GOP reach a crescendo and focus a lot of time and attention on an issue that most Americans won’t understand and could care less about means that the GOP is focusing less time and attention on Obama’s agenda.

    If a Special Prosecutor investigates and finds nothing (which it almost certainly will), then the GOP loses big by looking overly picky and Javert-like, and the Obama Administration comes out on top.

    In other words, there doesn’t seem to be a single political reason for the Administration to say anything. Indeed, if I’m Rahm Emanuel, I’d be begging for a special prosecutor…

  10. Steve Plunk says:

    Alex,

    So if Sestak is a liar doesn’t the Administration owe the truth to the voters of Pennsylvania? It all seems rather Machiavellian for such a transparent White House.

    Rahm might indeed want a special prosecutor unless a job was clearly offered and the law broken. We don’t know that, do we? In fact our two house legal experts seem to want to err on the side of no law broken without any exculpatory facts. The only facts we have are the two statements by Sestak which support further investigation by an impartial entity.

  11. Harshbarger didn’t get a job with the Justice department.

    Neither did Sestak.

    As for the other information, that comes from Marc Ambinder, who I have no reason to doubt.

  12. Alex,

    Even if there wasn’t a law broken here it would still be a problem for the Administration to let this story go unanswered. And having a special prosecutor appointed which just serve to be a huge distraction. Politically, disclosure seems to me to be their best option

    And based on what Obama said at the presser today, it sound like something will be coming from the WH in the near future

  13. Alex Knapp says:

    @Steve – First of all, at this time, I do not believe that there are any facts to warrant an investigation.

    Second, my comments were directed towards political incentives and strategy, not the ethically correct thing to do. My preference would be for Robert Gibbs to come out and say, “We didn’t offer him a job.” or “We offered him a job, but not in exchange for dropping out of the race, and here’s the relevant document.”

    But politically speaking, I don’t see any advantage for them to do that.

    @Doug,

    Politically, disclosure seems to me to be their best option

    Why’s that? A pointless distraction like this is perfect for the Administraiton – it sucks up media attention, the general public won’t care, and by the time it’s sorted out, the GOP will have lost their momentum going into November. I’m not saying I want the Administration to do this–just that I don’t see any political upside to disclosure outside the beltway.

  14. Wayne says:

    According to the AP article Rollins would be the President Chief Political advisor in January. His biography stated he resign from a previous post in November 1981. The posting on article is Nov 26 1981 so it looks like he wasn’t even part of the administration at the time of his statement. He also stated that no offer had been made to directly to Hayakawa.

    Hayakawa stated that “I have not contacted by the White House in regard to any administration or ambassadorial post and they have not been in contact with me”.

    Keep fishing people.

    http://news.google.com/newspapers?nid=1454&dat=19811126&id=ibcsAAAAIBAJ&sjid=HhQEAAAAIBAJ&pg=5060,5317656

  15. A pointless distraction like this is perfect for the Administraiton – it sucks up media attention, the general public won’t care, and by the time it’s sorted out, the GOP will have lost their momentum going into November. I’m not saying I want the Administration to do this–just that I don’t see any political upside to disclosure outside the beltway.

    I agree that the general public, outside of the audiences of Limbaugh, Hannity, and Fox News, won’t care and won’t even pay attention to this story. That said, I think many members of previous administration would agree that letting stories like this fester can prove problematic in the end.