Robert Bauer, the White House Counsel, has released a two-page memorandum in response to the controversy involving Rep. Joe Sestak (D-PA) and the promise by President Obama at his news conference yesterday that there would be “an official response shortly” from the White House. The administration has been stalling for months about giving a full explanation of what happened and who was involved in potentially violating federal law ever since Sestak first claimed he had been offered a position in the administration in exchange for withdrawing his primary challenge to Senator Arlen Specter. The facts recited in the memorandum do not let the White House off the hook, even if the White House claims otherwise,
Bauer’s memorandum denies that Sestak was offered a position as Secretary of the Navy. What supposedly was offered was “service on a Presidential or other Senior Executive Branch Advisory Board, which would avoid a divisive Senate primary, allow him to retain his seat in the House, and provide him with an opportunity for additional service to the public in a high-level advisory capacity.” (Sestak originally said he was offered a “job,” not an advisory position).
Bauer titles this particular paragraph as “Uncompensated Advisory Board Options.” Bauer denies that White House staff directly discussed these offers with Sestak; instead, Rahm Emanuel, the Chief of Staff, enlisted former President Bill Clinton to “raise” these options with Sestak. Sestak “declined the suggested alternatives, remaining committed to his Senate candidacy.”
Bauer asserts, without providing any examples, that there “have been numerous, reported instances in the past when prior Administrations…discussed alternative paths to service for qualified individuals also considering campaigns for public office.” He then concludes that “[s]uch discussions are fully consistent with the relevant law and ethical requirements.”
Why would it take months for the White House to offer this explanation if the offer were legal and ethical? The likely reason is that it is, in fact, not legal. Bauer seems to be basing his claim that there was no violation of federal law on the assertions that 1) the positions offered to Sestak were “uncompensated” and 2) the offer(s) were not made directly by the Chief of Staff, but by Bill Clinton. However, 18 U.S.C. § 600 makes it a crime for:
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…
Bauer admits that Rahm Emanuel asked Bill Clinton to offer Sestak an appointment to a “Presidential or other Senior Executive Branch Advisory Board,” and that the appointment would be attractive, i.e., a benefit. The statute does not absolve you of liability if you are offering someone an uncompensated appointment. It also specifies that you are guilty of a violation if you make such an offer “directly or indirectly.” Moreover, since the executive branch may not spend money that is not appropriated by Congress, any such board would be authorized by or at least paid for by an “Act of Congress.”
Bill Clinton is potentially guilty of a direct violation of this statute since it applies to anyone whether they are in the executive branch or simply conspiring with members of the executive branch. This is certainly a new wrinkle to this scandal, but there is no question, based on Bauer’s own admissions in the memorandum, that Rahm Emanuel indirectly promised an appointment to Sestak as a “reward” for political activity “in connection with a primary election.”
Of course, what is not answered in this memorandum are the exact details of when this occurred, what exactly was said in the conversations between Emanuel and Clinton, and Clinton and Sestak, or most importantly, whether or not President Obama had any knowledge of what Emanuel was proposing either before or after it occurred. We also have no indication of who exactly investigated this matter and whether Emanuel was questioned under oath, whether there are any phone, email or other written records to support the conclusions in the memorandum, or whether any information has been forwarded to the Justice Department (which is responsible for investigating and enforcing the federal laws that may have been broken).
This memorandum also does not mention a similar incident that has also not been investigated. In September of last year, The Denver Post reported that top Colorado Democrats told the newspaper that Jim Messina, President Barack Obama’s deputy chief of staff, offered a job at USAID, the foreign aid agency, to Colorado legislator Andrew Romanoff. This after news leaked that Romanoff was “determined to make a Democratic primary run against Sen. Michael Bennet.” While White House spokesman Adam Abrams was quoted as saying that Romanoff was never offered a position in the administration, the exact nature and content of the conversation(s) that Messina had with Romanoff have never been disclosed. Was this incident actually investigated by the White House Counsel’s Office? By the Justice Department? If not, why not? Was Messina interviewed under oath? Was this another case of Chicago-style, hardball politics being applied in Colorado as well as Pennsylvania?
The Justice Department has a duty to investigate such possible violations of federal law. So far, however, the Attorney General has shown no inclination to fulfill his obligations and uphold his oath to faithfully and impartially enforce the laws of the United States. That is especially important now when, according to the information contained in White House Counsel Robert Bauer’s own memorandum, the elements of a federal crime were apparently committed by the White House Chief of Staff and even more surprisingly, a former president of the United States.
