Former chief ethics lawyer for Bush rebuts charges that White House committed a crime in Sestak matter

Blog ››› ››› ADAM SHAH

Richard Painter -- who served as chief ethics lawyer for the president during the Bush administration -- has debunked the right-wing media's fevered claims that the Obama White House committed a crime when members of the Obama administration allegedly offered Rep. Joe Sestak a job supposedly to convince him to drop out of the Senate race in Pennsylvania. In a May 24 blog post headlined "Joe Sestak's 'Bribe' Scandal: Another Ethics Sideshow," Painter wrote: "The allegation that the job offer was somehow a 'bribe' in return for Sestak not running in the primary is difficult to support."

From Painter's post on the Legal Ethics Forum blog:

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 a subsequent blog post, Painter responded to a letter from Rep. Darell Issa (R-CA) calling for a special prosecutor to be appointed to investigate possible criminal charges pursuant to 18 U.S.C. §§ 211, 595, and 600. Painter began his post by stating: "The Administration probably should provide the information needed to clarify what happened, but the bribery statute citied by Congressman Issa is, for reasons explained in my previous post, difficult to envision applying to this situation."

Painter's comments accord with those of another ethics attorney, Melanie Sloan, executive director of Citizens United for Responsibility and Ethics in Washington. As my colleagues Brian Frederick and Kate Conway have noted, CNS News reported that Sloan said, "I don't see the crime." From CNS News' report:

"People offer members of Congress things all the time," Melanie Sloan, a former federal prosecutor and now the executive director of the liberal government watchdog group Citizens for Responsibility and Ethics in Washington (CREW), told CNSNews.com. "I don't think there is any issue. I don't see the crime."

[...]

If it is true, such a trade would be an indictment of the system, Sloan of CREW said, but not likely illegal.

"A quid pro quo has to offer something of value in exchange for something," Sloan said. "If you agree not to run for the Senate and we'll make you secretary of the Navy -- that offers no monetary value. It's just the unseemly side of politics."

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