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.)

Still, another law, (18 USC 595) makes it illegal for any officer of an executive branch agency acting in his executive capacity from interfering in a political race. On its face, though, this would seem to prohibit President Obama from campaigning for any candidate, since he is always acting in his executive capacity unless he temporarily transfers power to the Vice President. Obama, in supporting, say, Michael Bennet over Andrew Romanoff in Colorado, is providing Bennet with a substantial thing of value directly related to job as president. It would be foolish to interpret the statute this broadly, but it follows logically.  (For financial purposes, political events are segregated from general treasury funds, but the cost of the enormous presidential entourage is borne by taxpayers.)

Issa may be on firmer ground with 18 USC 600, which bans the offering of any political appointment as a reward for supporting or opposing a candidate for office. This statute is fairly plain. But if enforced, then you'd have to get rid of the ambassador corps. This statute may be unconstitutional if it were ever challenged. And the Justice Department has already concluded that political appointees have broader discretion because a degree of political loyalty may be part of their job competencies.

All of this assumes that Sestak's account is correct.

I suspect that Sestak is telling the truth. It would not surprise me if White House lawyers are figuring out whether there is merit to Issa's claim, or whether, given the Obama administration's promise to hold itself to a higher ethical standard, more internal guidance on such matters might be necessary.

Numerous press accounts testify to its ubiquity in both the Bush and Clinton administrations. No special prosecutor was ever appointed in those cases; no one was ever punished. It's important to decouple the legal issue from the ethical issue; the Justice Department won't make distinctions between the Bush administration's conception of ethics and the Obama's administration's declaration that its ethical standards are higher. They'll try to see whether the facts as constituted could be forced into the letter and spirit of a law and game out whether a prosecution could be won on its merits.

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