Politics

What Joe Sestak would have to prove to make a case against the Obama White House

As Robert Gibbs and David Axelrod stonewall reporters on Joe Sestak, it’s worth exploring what laws a nameless Obama official may have broken if he or she in fact offered the Senate candidate a White House job in exchange for dropping out of Pennsylvania’s Democratic primary.

The charge, first made by Sestak in February and reiterated multiple times since then, is not simple: “I’m not going to say who or how and what was offered,” Sestak said recently on CNN. “I don’t feel it’s appropriate to go beyond what I said.”

The offer could have been implied, or explicit, and could have been communicated via phone or e-mail. Sestak won’t say, neither will Gibbs. But the details matter.

“There is a federal statute — 18 USC 600 — which makes it a crime to offer employment, position, compensation or other benefit made possible by an Act of Congress (I assume this covers a federal job) in exchange for ‘political activity,’ including support for or opposition to a candidate, including in a primary election,” Columbia Law professor Richard Briffault told The Daily Caller in an e-mail.

“There is a good argument that offering someone a job in exchange for his dropping out of a primary falls within the prohibition in the law. Arguably dropping out without an endorsement of the remaining candidate (Specter) is cessation of political activity, not political activity, and not either support of or opposition to a candidate — so you could argue it’s not covered,” Briffault added. “On the other hand, its hard to believe that offering a benefit for some one to run for office is different from offering a benefit to some one not to run for office.”

The law which Briffault cites, 18 USC 600, reads as follows:

Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as 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 general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both.

That same law was cited by California Rep. Darrell Issa in a letter sent last week to Attorney General Eric Holder. Issa also cited 18 USC 211:

Whoever solicits or receives, either as a political contribution, or for personal emolument, any money or thing of value, in consideration of the promise of support or use of influence in obtaining for any person any appointive office or place under the United States, shall be fined under this title or imprisoned not more than one year, or both. Whoever solicits or receives any thing of value in consideration of aiding a person to obtain employment under the United States either by referring his name to an executive department or agency of the United States or by requiring the payment of a fee because such person has secured such employment shall be fined under this title, or imprisoned not more than one year, or both. This section shall not apply to such services rendered by an employment agency pursuant to the written request of an executive department or agency of the United States.

And 18 USC 595:

Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof, or by the District of Columbia or any agency or instrumentality thereof, or by any State, Territory, or Possession of the United States, or any political subdivision, municipality, or agency thereof, or agency of such political subdivision or municipality (including any corporation owned or controlled by any State, Territory, or Possession of the United States or by any such political subdivision, municipality, or agency), in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof, uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both.

The case would ultimately hinge on whether Sestak could prove an explicit offer was made. The language of 18 USC 600 includes the phrase “directly or indirectly,” which could give prosecutors wiggle room that they otherwise wouldn’t have. “Usually, in criminal cases, the prosecutor would have to prove that there was a fairly concrete arrangement,” Briffault said. “But it could be that the ‘indirectly’ loosens things up a bit, or it could be that it was meant to reach the use of intermediaries, or to say that the law reaches person A recommending person B to person C, who is the decision-maker. Again, much might turn on whether a specific job or jobs was mentioned.”