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Archive for June, 2010

There has been a lot in the news lately, and a fair amount of discussion surrounding an alleged offer of a job to Joseph Sestak by the Obama Administration in exchange for him not running against career politician and noted turncoat Arlen Spector.  Up to this point, I really haven’t been paying too close attention to the story, because we have been ill-served by a remarkably uncurious press since the 2008 campaign when it comes to the doings of the President and those surrounding him.  However, I have had several questions about the legal implications if the allegations are true, and I decided that I would actually read up on the matter and try to figure it out if the administration had engaged in illegal behavior or not. 

While the events are interesting, for the sake of brevity, I want to focus on the law itself, so I wall start with the assumption that Sestak was offered a job by the administration to not run against Spector, either directly or through a third party.

18 USC 11, Sect. 201 et. seq. is the federal law on bribery, graft and conflicts of interest.

Sect. 211 is as clearly stated as a federal statute can be:

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.

Inquiry doesn’t end here.  18 USC 11, Sect. 595 states:

Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof, or by the District of Columbia or any agency or instrumentality thereof, or by any State, Territory, or Possession of the United States, or any political subdivision, municipality, or agency thereof, or agency of such political subdivision or municipality (including any corporation owned or controlled by any State, Territory, or Possession of the United States or by any such political subdivision, municipality, or agency), in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof, uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both.

This section shall not prohibit or make unlawful any act by any officer or employee of any educational or research institution, establishment, agency, or system which is supported in whole or in part by any state or political subdivision thereof, or by the District of Columbia or by any Territory or Possession of the United States; or by any recognized religious, philanthropic or cultural organization.

Then there is 18 USC 11, Sect. 600:

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.

So then I got wondering about penalties.  Fines, and the like, so I started reading in Chapter 1, and found this interesting tidbit under Sect. 2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

This means that saying Slick Willy made the offer to Sestak doesn’t make Slick Willy the only principally responsible party.

Is this an impeachable offense?  Yes.  Article II, Sect. 4 of the Constitution is very clear:

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

That said, the question becomes who takes the fall for this?  Members of the Administration are civil officers, so the flunkies could be on the hook, but the question is who else knew, and can it be proved?  It isn’t as neat a dodge as it might appear at first blush.  If the President didn’t know, then it raises the question of whether he is in control of his administration, and given his ego, he would likely have a personal aversion to admitting that someone in his administration acted with his authority, but without his knowledge.  On the other hand, if he admits that he knew, he has committed a crime that the Constitution would permit Congress to impeach him for.

Now I can hear my friend Rutherford, and others like Graychin offer up excuses such as “Everybody does it.  You’re being silly.”, or some discussion of what Reagan may or may not have done when certain sections were not codified.  I read through the sections I cited very carefully.  I didn’t find a “everyone does it” or a “Reagan did it” exception.  If we were to take Obama at his word when he talked about not having the same old way of doing things, and a transparent administration, then there really shouldn’t be such rationalizations anyway.

Selective enforcement of the law, undertaken with a “it isn’t illegal when we do it” attitude does more lasting damage to the legitimacy of government and the integrity of the law than a thousand wrongful convictions.  And when it is done by the administration of Hope and Change, it does far more to “fundamentally change the status quo” than anything my friend Hippieprof contemplated when he wrote to absolve the Chicago Messiah of the sins of self-righteousness and arrogance with a version of the “mote in your own eye” argument.

Having said this, I don’t expect that we will see any real resolution to this anytime soon.  “The Most Transparent Adminstration Ever”  has done a fine job so far of dodging and avoiding difficult questions, and denying FOIA requests.  Congress could start really digging into this issue, but as long as there is a Democratic majority, the chances of it doing so are slim…but not impossible.

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I started my morning by watching the clip of the former Clinton Labor Secretary on Olbermann’s show talking about his brilliant plan to put BP under receivership.  I refuse to link it because you’d have to sit through three minutes of Olbermann and that is at least 2:59 longer than anyone with an above-room temperature IQ should have to endure.

If you want to see a slightly better clip, this still is enough to give you the gist:

And TPM has Reich’s column in which he outlines this brilliant strategy.  He boils this down to five reasons why this is a course of action that the federal government should take.

1.  We are not getting the truth from BP.

2.  We have no way to be sure BP is devoting enough resources to stopping the gusher.

3.  BP’s new strategy for stopping the gusher is highly risky.

4.  Right now, the U.S. government has no authority to force BP to adopt a different strategy.

5.  The President is not legally in charge.

Now, before I continue, we should clear something up.  Receivership is generally a remedy available to entities that are insolvent and looking for a way reorganize without liquidating their assets.  As of yet, severely depressed stock price aside, I have not yet heard anyone say that BP is insolvent.  Nor did I see where Bobby the Brilliant say what exactly would give the government authority to do so.  Calling it a national emergency is not sufficient cause to seize private property, any more than “Too Big To Fail” was sufficient cause to take over AIG or GM, and “make no mistake”, it was not sufficient cause.  As much as sticky-fingered statists like Reich would like to wish otherwise, due process has not been suspended or tossed out the window.

As I listened to the Olbermann clip, I heard Bobby admit that the government has no plan, doesn’t have the necessary equipment, doesn’t have the expertise or even general knowledge that BP has.  But the information seems to be the key for Bobby.  He feels that BP has it and isn’t sharing.  He hasn’t presented proof, mind you.  He simply feels that because BP is refuting what some scientists are saying, government has a right to seize the company to check the data.  Corporations do not have Fifth Amendment protections against self-incrimination, but they do have due process rights under the Fourteenth Amendment.  As a practicing attorney, my response is “Get a damn subpoena, and then we will talk.  But keep your filthy mitts off of the Corporation unless you seek it through legal process, and in that case, I’ll see you in Court, counselor.”

As for not knowing if BP is devoting enough resources, Bobby would have us believe that a company that answers to shareholders and is getting the crap kicked out of it in the Court of public opinion is somehow holding back from bringing an end to a spill than will stain its reputation for decades, and the implication that government control of BP could somehow get a new well to the accident site any faster using the same BP resources is ludicrous in the extreme.  These rigs are massive, and depending on the type, move at a glacial pace.  The laws of physics do not change simply because Obama stamps his foot and cries “Faster! Plug the damn hole!”

Bobby’s argument that BP’s strategy is risky takes some cheek in light of the fact that government has no plan of its own; the idea that government, which he admitted does not have the experience or a plan, could formulate a better plan is arrogant and not borne out by the facts.  Keep in mind this is the same government that through the EPA failed to deliver timely approval to the state of Louisiana to install sand berms to protect Louisiana coastal marshes.  I don’t think extra-legal remedies to allow an entity with a history of failure to start calling the shots is intelligent policy.

Bobby’s concern about the government’s lack of legal authority is unconvincing.  His justification, rooted in the confusion created by government influence/participation already is not a compelling argument.  Taking control from BP only means the clear decision maker will be removed from the equation, and leave the process to competing agencies who are just as likely to bicker and argue, and give an executive who already has demonstrated an ability to talk about problems rather than discuss them a reason to continue to be indecisive.  It would be the worst of all worlds.

And his final reason, the current confusion caused by the fact that the President has no legal authority is not a reason, it is a segway to an “AND???”  The fact that he doesn’t have direct authority and can only meddle and cause confusion through the agency of government rather than assume control and make it the order of the day again fails to present a compelling legal argument for the seizure of private property.

While I can believe that some in government, like Maxine Waters (D)ummy, California, would positively wet themselves in sheer delight at the thought of adding an oil company to their car company, insurance company, bank and brokerage house, I just can’t support it.  Hell, if they get their fondest desires in their plans to “Reinvent Journalism”, they can be just like their hero, Hugo Chavez. 

If we let BP succumb to such extra-Constitutional process as Bobby the Brilliant proposes, then there will be no crisis too small to justify the government taking what it wants.  This has to stop.  Now.

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H/T to Alfie

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