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John W. Dean

President Obama's Scandal That Wasn't, and Still Isn't: The Alleged Promises to Sestak and Romanoff


Friday, June 11, 2010

Recently, White House Counsel Robert Bauer responded to Republican charges that Congressman Joe Sestak had been illegally promised a job in exchange for his promise not to run for the Senate against Democrat Arlen Specter -- the longtime Republican who had recently switched to the Democratic Party. After Bauer's comments aired, I received calls from several mainstream-media reporters, asking, What did I think?

Had the Obama White House blundered its way into a criminal scandal? Was Republican Congressman Darrell Issa correct that this violated the federal Criminal Code? Was there any substance to the charges made by Michael Steele and Sean Hannity, who were equating this with original political sin? What about the view of my former Nixon White House colleague Pat Buchanan, who was claiming that Bauer's report exonerating the Obama White House was as bogus as Nixon's claim that my report to him had exonerated his White House during Watergate?

At the time, I had only read Bauer's report, and we now know a bit more -- for instance, we know that a similar promise was made to Andrew Romanoff by the Obama White House; Romanoff, too, was offered a job if he would promise not to run for the Senate nomination in Colorado.

Nonetheless, I have seen nothing that would change my response: This is a tempest in a teapot. A faux Fox News scandal. It is my former tribe doing what they do so well: Distort the truth, as they take their double standards to ever-higher levels.

If this is a scandal, it is also the standard operating procedure of Republican presidents -- a fact that, of course, the Republicans who are pointing fingers at the Obama White House fail to mention.

The White House Counsel's Opinion

Obama's White House Counsel, who gathered the facts about Sestak, concluded "that allegations of improper conduct rest on factual errors and lack a basis in the law." What happened with Sestak was that White House Chief of Staff Rahm Emmanuel requested that former President Bill Clinton raise the possibility of a presidential or senior Executive Branch advisory-board post for Sestak (a former Admiral), whom the White House wanted to remain in the House of Representatives. No particular job was decided upon, but it was made clear that it would have to be a non-paying post, for members of Congress cannot receive payment from the Executive Branch. Sestak was not interested. Former President Clinton said he was not surprised, and did not push the matter.

Joe Sestak, of course, has since won the primary, defeating the venerable and vulnerable Arlen Specter. Nothing has surfaced regarding Sestak since the release of Bauer's opinion that changes the matter. To the contrary, Pennsylvania Governor Ed Rendell has reported that he talked with Emmanuel three or four times about Sestak's remaining in the House to protect his seat, which corroborates the facts that were reported earlier.

Similarly, the information that has surfaced regarding Andrew Romanoff -- the former Speaker of the Colorado House of Representatives, who is challenging Senator Michael Bennet for the Democratic nomination in August -- also reveals conversations that appear to have been well within the law. According to Fox News , White House Deputy Chief of Staff Jim Messina "described three federal international development jobs that might be available to [Romanoff] if he were to not challenge … Bennet." Romanoff said, however, "At no time was I promised a job, nor did I request Mr. Messina's assistance in obtaining one."

Those are the clear facts -- now, let's look at the law. A quick analysis shows that Republicans who are pushing this as an outrageous Obama scandal simply do not understand (or do not wish to understand) the applicable statute. Moreover, they conveniently fail to recall the fact that it has been Republican presidents who have, in the past, blatantly violated the law.

The Applicable Federal Law and Its Requirements

The section of Title 18 of the Federal code that Republicans are flaunting is Section 600, which reads (in the relevant part): "Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both." [Emphasis added.]

First, it should be noted that no prosecution under the statute has ever been reported, despite the fact that it has been the law since 1939. With punishment limited to not more than a year, this crime is a misdemeanor. The US Department of Justice Manual for United States Attorneys does not address this statute, other than to recommend that if the facts warrant, the Department ought to go forward under a different law.

As the text above shows, for the statute to apply, the non-paying post or "other benefit" involved must be one that was created "in whole or in part" by an Act of Congress. The presidency itself was created by the Constitution, and presidents can and do create all kinds of non-paying advisory posts by executive orders, or even with less formality. This kind of a post appears to be what was contemplated for Sestak, but as noted above, the talks never got that far. Regarding the other offer -- of "three federal international development jobs" as potential posts for Andrew Romanoff -- it is very possible that one or more such positions might have technically fallen within the language of the law that requires the post to be created by Congress. Nonetheless, as I will explain, both Sestak and Romanoff were being asked to consider undertaking activities that were plainly outside the statute.

Why Both the Sestak and Romanoff Discussions Were Clearly Outside the Scope of the Criminal Law at Issue

The statute uses the term "political activity," but does not define it. As used in the statute, that term has nothing to do with candidates running (or not running) for office -- the activities that Sestak and Romanoff were being asked to consider. Rather, this statute was one of several criminal-sanction provisions that were added to the Hatch Act of 1939, which sought to control the uses and abuses of political patronage. This statute seeks to prevent those who are currently in office from getting political support in elections by promising jobs or other government benefits to those who might provide just such support.

It is true that the broad language of Section 600 appears to cover a situation where a person is offered a job in exchange for a promise not to run for office, notwithstanding the fact this was not the purpose of the law. But that is the case with the broad language of the bribery statute as well: It clearly appears to cover most all campaign contributions, as a cursory reading of the statute will reveal. Yet because it was not the purpose of the bribery law to cover campaign contributions, courts wisely do not read the statute in that fashion.

Just as courts do not criminalize campaign contributions based on an overly literal reading of a statute, so too no court is going to read the broad language of 18 USC 600 as covering the "political activity" that was involved in either the Sestak or Romanoff conversations.

Moreover, were courts to have viewed the matter otherwise, then Republican presidents would have been among the most conspicuous offenders of this law.

Instances of Republican Presidents Promising Jobs in Exchange For Political Support

While I have not fully researched every instance that would violate the literal language of the statute at hand, I can recall, off the top of my head, repeated instances where Republican presidents have promised jobs that clearly fell within the broad language of the statute at issue here, 18 USC 600. Ironically, however, I cannot recall (and again, I have not fully researched the issue) any Democratic presidents engaging in similarly blatant behavior -- the very behavior that now draws the ire of Republicans.

The few examples that currently come to mind make the point:

In 1952, California Governor Earl Warren was California's favorite-son nominee for president, and he controlled one of the largest delegations at the nominating convention. To win the GOP nomination, Dwight Eisenhower needed Warren's favorite- son delegates to defeat Ohio Senator Robert Taft. To get those delegates, Eisenhower promised to make Warren his Solicitor General and to appoint him to the first vacant seat on the U.S. Supreme Court. (In September 1953, less than a year into Eisenhower's presidency, Chief Justice Fred Vinson died of a heart attack, and indeed, Warren became Chief Justice.)

When Richard Nixon became president he invited a young Illinois Congressman, Donald Rumsfeld, into his administration and, later, his White House with the understanding that Rumsfeld would run for the Senate. The exercise was designed to build Rumsfeld's resume. (When Rumsfeld later reneged, and chose not to run, White House Chief of Staff H.R. Haldeman described the breach of the quid pro quo in his diary as "typical Rumsfeld, rather slimy maneuver.")

The Reagan White House sought to remove Senator S.I. Hayakawa from the 1982 Republican primary contest for California's Senate seat (in which the president's daughter was running). The "veiled offers of [an] ambassadorship" were noted by The Washington Post (January 30, 1982), and NPR's Ken Rudin reported that one of his readers/listeners had found an AP report of Senator Hayakawa stating, "I do not want to be an ambassador, and I do not want an ambassadorial post" in response to the Reagan White House's efforts.

Are The GOP Charges Hypocrisy, Or Intellectual Dishonesty, Or Both?

Republicans pushing the view that the Sestak and Romanoff job discussions should be seen as some kind of scandal simply pass over the fact that such activities have occurred with Republican presidents. Similarly, they pass over the fact that Republicans who actually know something about this law, like Bush II's White House ethics adviser Richard Painter and his Attorney General Michael Mukasey , have explained that this conduct is not unusual or criminal.

Finally, as for Buchanan's cheap shot in trying to claim that I told Nixon that none of his staff was involved in Watergate, it seems that Pat's memory is failing him. First, as the record shows, I never made such a statement to Nixon; rather, he invented it. And, as history shows, no one in the Nixon White House did have advance knowledge of the criminal plans of G. Gordon Liddy at the Watergate. As Pat well knows (and the tapes show), I pulled no punches with Nixon, and it cost him his presidency. Pat's efforts to paint the Obama White House with a Watergate taint are intellectually dishonest, and I am surprised at him.

I believe that these White House job offer discussions can most correctly be described as follows -- and as I recently described them to a reporter for the Los Angeles Times: Presidents are heads of state, heads of government, and heads of their respective political parties -- so it would be surprising if a president and his staff were not involved in various Congressional contests that he or they believe might further their administration's agenda and their party's reach.  While the Nixon White House wrote the book on what not to do, I am not aware that Nixon was ever criticized for helping his political friends; rather, he was correctly condemned for his using of his power to hurt his enemies.  There is a difference.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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