Issa's Call for a Special Prosecutor: Does It Have Merit?

Is there merit to the call by Rep. Darrell Issa (R-CA) for a special prosecutor to investigate whether White House chief of staff Rahm Emanuel broke the law by offering Rep. Joe Sestak (D-PA) an administration appointment in exchange for Sestak's not challenging Sen. Arlen Specter in the Pennsylvania primary?

The White House has kept mum on Issa's charges, aside from a cursory comment from the press secretary, and an official declined to comment for this post. The attorney general, Eric Holder, would be in a position to make the call, but he would probably consult the White House before making a decision that could bear directly on how the Oval Office functions.

The practice that Issa objects to is common and not unusual.

Now, trading an administration job -- a thing of value -- for a political favor might well constitute bribery. It is also very common. A Nexus search turns up numerous examples. In 1981, President Reagan offered S.I. Hayakawa, then California's senior senator, a job if he declined to run for reelection. We know this because Reagan's chief political adviser admitted as much on the record.

In 1997, then-Massachusetts Attorney General L. Scott Harshbarger negotiated a Justice Department post while he decided whether to run for governor. The Clinton White House did not want him to make that bid -- they wanted to clear the field for Rep. Joe Kennedy.

(Remember when William Weld was nominated to ambassador to Mexico? Same reason, same motivation. Jesse Helms scuttled this, but for reasons having nothing to do with presidential political interference.)

More recently, after Rep. Ben Gilman found his congressional district eliminated by redistricting in 2002, the White House tried to persuade him from challenging another Republican congressman in another district by considering him for an administration position. Karl Rove repeatedly intervened in Republican primaries. And Tim Pawlenty is not a senator because Rove urged him to run for governor instead.

Here is the relevant section of the U.S. code:

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

But the text of the law (a misdemeanor) allows the White House to provide a much more benign narrative. Sestak was qualified to be Navy secretary; he was offered the job and did not take it. Nothing was exchanged; though the political impulse to keep Sestak happy and satisfied and not a Senate candidate was probably Emanuel's primary intent, it would be difficult for anyone to disentagle the practical from the political. Also, Sestak wasn't threatened with any harm: he knew that the White House supported his opponent. He was only offered an inducement. (The Justice Department has prosecuted people under this law just once: in 1955, when folks were paid in order to promote Post Office employees. It's a misdemeanor.)

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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