Friday’s carefully coordinated “official response” by the White House and Rep. Joe Sestak to the many questions surrounding Sestak’s disclosure in February that someone in the White House had offered him a high-level “job” to drop out of his Senate race against Arlen Specter did nothing to resolve the serious legal issues that have been raised.
Commentators largely have focused on the criminal statute making it illegal to offer a federal position or appointment — paid or unpaid — to someone to get them to participate in political activity. Rightly so. The statute, 18 U.S.C. 600, would certainly cover an offer of an appointment to an unpaid position on a presidential commission as a reward for abandoning one’s candidacy for the benefit of a political party. White House Counsel Robert Bauer’s defense of the Sestak job offer was devoid of analysis and did nothing to negate the elements of this offense. The facts that former president Bill Clinton made the offer and that it was for an unpaid position don’t matter: The statute makes it illegal to offer a federal appointment, “directly or indirectly”; moreover, as a general principle, a person cannot employ an agent to do that which he may not do himself.
A successful criminal prosecution would require proof beyond a reasonable doubt that there was a quid pro quo of a job offer from, apparently, White House chief of staff Rahm Emanuel to Congressman Sestak for Sestak to quit the race. The use of President Clinton as a go-between to convey the offer and Sestak’s latest (contradictory) statement probably muddy the water enough to let whoever was involved wiggle off the criminal hook. It would be a tough prosecution to bring.
However, with due respect to my former colleague, Richard Painter, who offered me and other members of the White House staff sound ethics advice every day, the challenge in proving a quid pro quo does not, and should not, end the matter. Another law was broken by the White House’s job offer to Sestak, and the proof lies right in Bauer’s memo. The Hatch Act makes it illegal for a federal employee to use his official position or authority to interfere with or affect the result of an election. Unquestionably, the chief of staff’s offer of a presidential appointment to get Congressman Sestak to drop out — even if conveyed through his emissary Bill Clinton — constitutes the use of his official position to interfere with the result of an election. It could cost him his job.
The Hatch Act, which is enforced by the independent Office of Special Counsel (“OSC”), carries a penalty of removal from one’s government position for engaging in improper political activity. It applies to all federal employees except the president and vice president. It was initially enacted in 1939 (after being introduced by Sen. Carl Hatch of New Mexico) to limit patronage appointments within the civil service and to insulate government employees from pressure to participate (or to refrain from participating) in political activity, which is defined as an activity directed towards the election or defeat of a political candidate or party. This is what makes Mr. Bauer’s explanation so puzzling. In addition to trying to justify the job offer to Sestak by virtue of the position’s being unpaid and the fact that it was not conveyed to him directly, Mr. Bauer cited the “legitimate interest” of the Democratic party leadership in avoiding a divisive primary or in retaining Sestak’s congressional seat.
This last justification is preposterous. Advancing the interests of a political party is not a “legitimate” use of one’s official government position. The White House counsel cannot unilaterally exonerate the chief of staff’s misuse of his authority to manipulate the outcome of a Senate primary because the White House political advisers had deemed it inconvenient for their party to have a contested election. Forget President Clinton’s involvement. He has no official authority. Only Rahm Emanuel could orchestrate the presidential appointment that the former president offered Sestak, by virtue of Emanuel’s position as chief of staff. That Mr. Emanuel did so, according to Bauer, to advance the interests of the Democratic party leadership, proves, not eliminates, the Hatch Act violation.
It remains to be seen whether Mr. Emanuel, or anyone else involved in offering Congressman Sestak a federal appointment in exchange for dropping out of the Senate race, will be held accountable. OSC, which the president has yet to nominate a special counsel to lead, does not appear to have opened an investigation. Regardless of whether Mr. Emanuel takes the fall, however, the White House should be held accountable to the American people, especially the Democratic voters of Pennsylvania, for having the audacity to intervene in the Senate primary race. Robert Bauer’s memo not only fails to justify legally the White House’s conduct, it fails to explain why the White House believed it was appropriate to supplant the judgment of the voters of its own party as to who could best represent their interests in the Senate, and why it believed it was appropriate to use an official government position as an instrument to deprive those voters of a choice between two qualified candidates.
– Scott Coffina was associate counsel to Pres. George W. Bush from 2007 to 2009 and is currently practicing in Philadelphia.