Legal experts reject Fox's allegation that Sestak was "bribed"

››› ››› DIANNA PARKER

Fox News has seized on false allegations that the White House "bribed" Rep. Joe Sestak (D-PA) with an administration job in exchange for staying out of a Senate race and claimed it would amount to an "illegal" and possibly "an impeachable offense." In fact, legal experts have rejected the claims that such offers are a bribe or illegal.

Fox: Supposed WH "bribe" is "illegal"

Napolitano: "It is illegal." On the May 26 edition of Fox News' Fox & Friends, co-host Steve Doocy stated that "it sounds like if somebody in the White House said, hey, Joe, drop out of this race so Arlen Specter just has a cakewalk. If somebody said -- and then we'll give you a job at the White House or in administration, that sounds like a bribe. That's got to be illegal." Fox News contributor Judge Andrew Napolitano replied that "[i]t is illegal." From the program:

NAPOLITANO: It is illegal. I mean, if that's the conversation, this is going to -- if Congressman Sestak can be compelled to speak, and I can tell you how that will happen if you want to hear it, it will be his version of what happened versus the other person in the conversation's version. If it was -- are you interested in a job in the administration? End of conversation. Not a crime. If it was a quid pro quo, as you suggested -- are you interested in a high-ranking job in the administration if you leave Arlen Specter alone? That is an attempted bribe. If more than one person was involved on the offering end, it's conspiracy to bribe. It's interference. It's attempted interference with a federal election, and if more than one person was involved on the offering end, it's conspiracy to -- to affect the outcome of an election by an impermissible means. Each one of those carries five years in federal prison.

So as Dick Morris said yesterday, how high up the food chain does this go? Would Rahm Emanuel -- I'm just suggesting a hypothetical. I have no idea with whom Congressman Sestak spoke. But if Rahm Emanuel made this offer, would his boss have known about it?

Carlson asks Issa whether the offer would be an "impeachable offense," and Issa compares it to "the Nixon-era Watergate situation." Later in the program, co-host Gretchen Carlson hosted Rep. Darrell Issa (R-CA) to discuss his request for a "special counsel to investigate" the allegations. Issa compared the situation to "Watergate" and said that "there's been an allegation of what could be up to three felonies." Carlson also asked whether the allegations, if true, amounted to "an impeachable offense," and Issa replied, "I think it was Dick Morris who said that, and you know, you can only impeach the president. You can't impeach his staff. So the real question is: Was this a staff decision? Did Rahm Emanuel do this on his own? Until we know who made the offer, we really don't know." On Fox News' Hannity, Morris had claimed that if the allegation was true it would amount to an "impeachable offense."

MacCallum, Napolitano suggest the "worst-case scenario" is impeachment. On America's Newsroom, co-host Martha MacCallum said the "situation is stirring up a real hornet's nest of questions about whether the White House may have broken any laws." Her guest, Napolitano, said that "if someone [in the White House] said, if you're interested in the secretary of the Navy and you'd leave Arlen Specter alone, call me -- that is an attempt to bribe, that is an attempt to influence the outcome of a federal election. And if others were involved, it's a conspiracy as well." Later, MacCallum asked Napolitano whether the "worst-case scenario" could be impeachment for Obama if he were involved. Napolitano replied:

NAPOLITANO: Well, the Constitution provides three bases for impeachment: high crimes and misdemeanors, treason, and bribery. Now, if -- these are all ifs, Martha -- if the president was involved and if the president dispatched someone who worked for him and if that person was told, offer Sestak whatever you have to to get him out of the race against Arlen Specter, that would form the basis for an impeachable offense.

Legal experts dispute claims that a crime was committed

Bush ethics lawyer calls claim that a job offer is a bribe "difficult to support." In a post on the Legal Ethics Forum blog, former Bush administration chief ethics lawyer Richard 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." Painter also wrote:

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.

Painter: "[D]ifficult to envision applying" bribery statute to Sestak job offer. In a subsequent blog post replying to Issa's call for a special prosecutor to be appointed to investigate possible criminal charges, Painter wrote: "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."

CREW executive director: "I don't see the crime." CNS News reported that Melanie Sloan, a former federal prosecutor, commented of the allegations: "I don't see the crime." From the March 24 CNS News article:

"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."

Sloan: "There is no bribery case here." Talking Points Memo's Zachary Roth reported in a May 25 post that "several experts tell TPMmuckraker this is much ado about nothing" and quoted Sloan saying, "There is no bribery case here. ... No statute has ever been used to prosecute anybody for bribery in circumstances like this." Sloan also said: "It's not at all about whether there was actual criminal wrongdoing. ... It's about how to go after Sestak."

Brand: "I don't put much stock in this, and I don't think its gonna go anywhere." Roth also quoted Stan Brand, a "prominent Washington criminal defense lawyer," saying that "people horse trade politically all the time. ... So I don't put much stock in this, and I don't think its gonna go anywhere."

Zeidenberg: "Horrible precedent" to treat "horsetrading" "in the criminal context." Roth also quoted Peter Zeidenberg, a former federal prosecutor with the Justice Department's Public Integrity unit, saying "Talk about criminalizing the political process!... It would be horrible precedent if what really truly is political horsetrading were viewed in the criminal context of: is this a corrupt bribe?"

Kaufman: "Tell me a White House that didn't do this, back to George Washington." The New York Times reported that Ron Kaufman, who served as President George H.W. Bush's White House political director, "said it would not be surprising for a White House to use political appointments to accomplish a political goal. 'Tell me a White House that didn't do this, back to George Washington,' Mr. Kaufman said."

Wash. Post: "[E]thics laws do not seem designed for this circumstance." In a May 25 editorial, The Washington Post stated: "Would it be illegal? Mr. Specter said so, but ethics laws do not seem designed for this circumstance. Ordinarily, bribery takes place in the opposite direction: Government officials aren't usually the ones offering something of value. Other statutes prohibit officials from using their power to interfere in an election, or to, directly or indirectly, promise a job as 'reward for any political activity.' But these have been understood to prevent official coercion, not criminalize horse-trading." The editorial continued:

Still, the White House position that everyone should just trust it and go away is unacceptable from any administration; it is especially hypocritical coming from this one. "I'm not going to get further into what the conversations were," Mr. Gibbs said Sunday. "People that have looked into them assure me that they weren't inappropriate in any way." This response would hardly have satisfied those who were upset during the previous administration about the firing of U.S. attorneys. If there was nothing improper, why not all that sunlight Mr. Obama promised?

Reagan administration reportedly offered job for candidate to step down

Reagan adviser reportedly offered CA senator a job with the administration "if he decided not to seek re-election." A November 25, 1981, Associated Press article (from the Nexis database) reported that President Reagan's political adviser Ed Rollins planned to offer former California Sen. S.I. Hayakawa a job in the administration in exchange for not seeking re-election.

From the AP article:

Sen. S.I. Hayakawa on Wednesday spurned a Reagan administration suggestion that if he drops out of the crowded Republican Senate primary race in California, President Reagan would find him a job.

"I'm not interested," said the 75-year-old Hayakawa.

"I do not want to be an ambassador, and I do not want an administration post."

[...]

In an interview earlier this week, Ed Rollins, who will become the president's chief political adviser in January, said Hayakawa would be offered an administration post if he decided not to seek re-election. No offer has been made directly to Hayakawa, Rollins said.

Similarly, Hayakawa said in a statement, "I have not contacted the White House in regard to any administration or ambassadorial post, and they have not been in contact with me."

AP: "Ethics attorneys in Washington said such offers are common." A February 19 AP article reported: "Ethics attorneys in Washington said such offers are common. Melanie Sloan, director of the watchdog group Citizens for Responsibility and Ethics in Washington, described it as 'politics as usual.' "

Wash. Post: "This would hardly be the first administration" to offer a job to "clear the field." A May 25 Washington Post editorial critical of the Obama administration's response stated: "At the same time, of course, political considerations play a role in political appointments. This would hardly be the first administration to use appointments to try to clear the field for a favored candidate."

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