The First Obama Scandal?

With the Sestak controversy, GOPers may not have ensnared the president—but the White House is acting guilty.

| Thu May 27, 2010 6:00 AM EDT

Does the right wing finally have an Obama scandal to sink its teeth into?

Conservatives and Republicans are rubbing their hands with glee at the prospect of snaring the president and his aides in a criminal controversy. The issue: Did the Obama White House offer Rep. Joe Sestak (D-Pa.) a job in return for him dropping his primary challenge to Sen. Arlen Specter, the Republican-turned-Democrat? Last week, Sestak defeated Specter, and this has apparently fueled conservative desires to turn the matter into a full-blown criminal investigation. Sean Hannity has called the purported White House promise a "de facto bribe" and an "impeachable offense." Fox News analyst Dick Morris has said this job offer might constitute "a high crime and misdemeanor." Rush Limbaugh terms it a "potential impeachable offense." 

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This all began in February, when Sestak said the White House had offered him a federal job the previous summer to not run against Specter, whom President Obama had promised to support. Sestak refused to say what position had been mentioned or which official had suggested the tit-for-tat, noting that the conversation had been confidential. The White House immediately denied any such thing had happened. Then in March, press secretary Robert Gibbs said, "I'm told that whatever conversations have been had are not problematic." Since then, he has refused to answer questions about the Sestak affair, repeatedly referring to that details-free March statement. Last week—after Sestak reiterated that he had received that White House offer—ABC News' Jake Tapper pressed Gibbs to explain what had transpired between Sestak and the White House/Gibbs declined, leading to a testy exchange: 

GIBBS: Jake, I don't have anything to add to what I said in March.

TAPPER: But you never—you never really explained what the conversation was.

TAPPER: But if the White House offers a congressman a position in the administration in order to convince that congressman to not run for office— 

GIBBS: Jake, I don't have anything to add to that.

TAPPER: But you've said a number of times that you would get something for us on that.

GIBBS: And I did. And I gave that answer in March, and I don't have anything to add to that.

TAPPER: But do you really think the American people don't have a right to know about what exactly the conversation was?

GIBBS: Jake, I don't have anything to add to what I said in March.

GIBBS: Then I don't have anything to add today.

The issue, though, is whether any conversation of this sort—if it indeed occurred—would have violated the law. In April, the person leading the GOP charge on this front, Rep. Darrell Issa (R-Calif.), the senior Republican on the committee on oversight and government reform, sent a letter to Attorney General Eric Holder Jr. requesting that he name a special prosecutor to determine if "a crime was committed." Issa listed three provisions of the US criminal code as relevant. One prohibits anyone from soliciting or accepting "any money or thing of value" for helping someone obtain a federal job. The second prohibits a federal employee from using his "official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate" for federal office. The third prohibits anyone from promising a job in return for certain political activity.

The language cited by Issa seems like it could be stretched to apply to the Sestak case. But Stan Brand, a Washington lawyer who specializes in ethics matters, says that he has read Issa's letter to Holder and thinks "it is far-fetched." He notes that the provisions Issa mentioned are from the Pendleton Civil Service Reform Act of 1883, which was designed to clean up the run-amok spoils system. Those laws, Brand explains, were designed to deal with coercion, fraud, and vote-buying, not "the rough and tumble of political horse-trading." Promising someone a job, he adds, is not the same as exchanging "money or something of value." Moreover, he notes, there have never been any prosecutions of the sort Issa contemplates in this instance. 

"This is a nice political ploy," Brand says. "But it has no legal substance. The president can promise Sestak the moon for a political reason. That's the system." 

In the 1970s and 1980s, Brand worked for House Democrats. So Republicans might dismiss his opinion as partisan. Yet Richard Painter, who was the ethics adviser in the George W. Bush White House, also pooh-poohs Issa's legal analysis. He writes:

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 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 adds, "Congress gives us plenty of genuine ethics concerns to worry about—particularly the role of campaign contributions which are de facto 'bribes'...Voters should not be distracted by media generated sideshows having little to do with what goes on in Washington."

One GOP attorney, Miguel Estrada (who was appointed to the federal court of appeals by Bush and subsequently blocked by a Democratic filibuster), notes that it is impossible to evaluate Issa's legal analysis "without knowing a whole lot more about the precise facts of how the job was offered." But he says, "There are remarkably stupid things that someone might say in offering a federal job even though the same job might well be offered to the same person and possibly with the same 'political' intent without raising any criminal law issues." He adds that Congress might not possess the right to interfere with how the White House decides whom to offer jobs: "There might be constitutional issues that arise, since at some point Congress cannot, even by statute, hinder the President's constitutional ability to satisfy himself that a potential nominee is suitable, say, by asking appropriate questions." Another DC-based Republican attorney—who doesn't want to talk about this on the record—calls Issa's argument "crap."

Though he dismisses Issa's pursuit of Sestakgate, Brand says that White House actions are keeping the scandal alive: "Gibbs dissembling doesn't help them. Don't be defensive about it. Just say this is what goes on. They're looking guilty over something that isn't illegal." He adds: "That's not the first time that this has happened."

In Washington, all that is untoward is not illegal. Even if it was legal for Obama to dangle the promise of a federal job to induce Sestak not to run for a particular office, the White House presumably would not want this typical act of back-room dealing disclosed to the public—especially given Obama's campaign vow to transcend politics-as-usual. But before Issa tries to make more of a federal case out of this, perhaps he ought to find independent legal experts who can argue that there might be be a basis for a criminal inquiry. If Issa does so, rightwing pundits would have cause for all the heavy breathing.

Yet absent Issa beefing up his legal analysis, Democrats still should not dismiss his demand out of hand. If the Republicans win the House in November, Issa will take control of the oversight and reform committee and be in a position to slam the White House with subpoenas. And history has demonstrated that a politically motivated scandal predicated on iffy legal premises can cause as much political damage as a well-founded and legitimate inquiry.

UPDATE: The Republican members of the Senate judiciary committee have also sent a letter to Holder asking him to name a special prosecutor to investigate the Sestak business. Asked about this letter, a Justice Department spokesperson noted that the department had earlier told Issa it would not appoint such a prosecutor for this matter. On Face the Nation this past Sunday, Gibbs said that White House lawyers had reviewed the issue and had found no wrongdoing. During a Thursday afternoon press conference, Obama noted that the White House will release an "official reaction shortly." He said that nothing "improper" had occurred.

UPDATE 2: Peter Baker of the New York Times reports that the White House used former president Bill Clinton to approach Sestak about the possibility of taking an advisory role with the administration while dropping out of the Senate primary and remaining in his House seat. 

UPDATE 3: Here's a memo on the matter from White House counsel Robert Bauer (pdf).