Archive for June 5th, 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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