A DISCUSSION OF LAW AND JOURNALISM

Legal Violation or Healthy Democratic Dealings at Work?

http://voices.washingtonpost.com/thefix/senate/joe-sestaks-short-campaign.html

By Jeremy Potter

After months of speculation surrounding whether Rep. Joe Sestak (D-PA) was offered a job in exchange for dropping out of Pennsylvania’s Democratic primary election, the Obama Administration confirmed that former President Clinton, at the behest of President Obama’s chief of staff, Rahm Emanuel, held exploratory discussions with Sestak about potential jobs Sestak might accept as part of a deal.

President Obama and his top lawyer, Bob Bauer, insist that “nothing improper took place” and discussions were “fully consistent with the relevant law and ethical requirements.” On May 28, 2010, Mr. Bauer released a memo to the White House staff evaluating each possible job offer but did not cover the applicable law.

Some stories about the offer referenced illegal activity, potential illegal offers or “a felony” without mentioning anything further about the law.  Other stories and blogs caught onto one or both of the U.S. Code’s applicable regulations.

But almost all the stories dismissed the violation, or alleged violation, as meaningless.

Left Wing media bias or fair assessment?  We will examine each of the two U.S. Code regulations in turn.

18 U.S.C. §595 states:  “Whoever, being a person employed in any administrative position by the United States, or by 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…Member of the Senate…shall be fined under this title or imprisoned not more than one year, or both.”

President Clinton is in the clear; he is no longer a “person employed by the United States”.  (It is doubtful his pension would count as employment.)  Rahm Emanuel’s situation looks trickier.   It is clear Emanuel wanted to “interfere” or “affect” this nomination but the statute is written in such a way as to make any application difficult.  Was Emanuel using his official authority as the statute requires? Is it enough for him to attempt to interfere with or must he actually interfere with a nomination? And at what point does Emanuel’s behavior rise to the level of “interfering?”

The second applicable provision, 18 U.S.C. §600 states:  “Whoever, directly or indirectly, promises any employment, position,…appointment, or other benefit…to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate…in connection with any primary election…shall be fined under this title or imprisoned not more than one year, or both.”

This section uses the verb “promises” to define the violation.   Arguably, there ware no promises made to Sestak, only an exploration of possibilities. The statute also criminalizes promises of employment made in consideration of “support” or “opposition” to any candidate.  But if exploration discussions are held and, after those discussions, a politician chooses to step aside, does that imply support or opposition of another candidate?

At first, it seemed odd to me that the media was so flippant about a potential violation of the United States Code.  The HuffingtonPost called the matter “silly”; according to the Daily Beast this kind of political horse-trading involved laws no one “has ever paid attention to before.”

And the truth is that prosecutions involving either of these provisions are rare.  §595 has never been prosecuted on its own, and the only cases invoking it have involved government officials interfering with the administration of justice during arrests, trials and setting bail. §600 has seen a bit more action.  For example, it was used in Guam when a contract was signed promising employment for support, voting and campaign efforts.  In perhaps the most commonly cited case, a woman hired as a secretary for the Northern Minnesota Small Business Development Center was paid in state funds and federal grants, but asked to perform political activities for Democratic Farmer Labor Party.

The two statutes leave room for much interpretation and maneuvering. Candidates and their staffs know to avoid words like “promises” and “interfere.”  Not only is it unlikely that the Obama administration violated either of these statutes, but it is difficult to imagine a modern, savvy campaign careless enough to violate these federal laws.

Though it generally didn’t analyze the statutes for its audience, the media got this one right.

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