Baier, Hayes push Sestak crime falsehood based on flawed legal interpretation

››› ››› MATT GERTZ

Fox News' Bret Baier and Stephen Hayes falsely suggested that a White House offer to Rep. Joe Sestak (D-PA) of a position on a presidential panel violated the "plain language" of a federal statute. But President Bush's chief ethics lawyer has reportedly called this interpretation of the statute a "big stretch," and numerous legal experts have stated that no crime was committed.

Baier, Hayes falsely suggest offer violated federal ban on "promise of employment ... for political activity"

Baier suggests offer violated "the law as it's stated in code." During a discussion of the Sestak offer on the May 28 edition of Fox News' Special Report, Baier suggested that the offer had violated 18 U.S.C. § 600, stating: "[A]ccording to U.S. code 18-600, the 'promise of employment or other benefit for political activity,' 'whoever, directly or indirectly, promises employment, position... or appointment,' or -- we're paraphrasing here -- 'to any person as consideration ... for any political activity ... in connection with any primary election' is essentially guilty of a misdemeanor. Now, that's the law as it's stated in code.'"

Hayes replies that the violation "seems fairly straightforward." Hayes replied, "It seems fairly straightforward. I mean, that's the plain language of the law."

Bush ethics lawyer, CREW head say this interpretation of statute is invalid

Painter: "I cannot see how this statute be reasonably applied" to this case." In a May 28 post, The Washington Post's Greg Sargent reported of his interview that day with former Bush administration chief ethics lawyer Richard Painter:

Painter also took issue with the notion that the version of events aired by the White House today could in any way be illegal. Republicans point to a Federal statute that prohibits any promises of "employment" as a "reward for any political activity."

But Painter says applying this to the Sestak situation is a big stretch. He argued that the sort of "political activity" referred to in the statute concerns political activity you might do for someone else, not actions you might take on your own behalf, such as dropping out of a race.

For instance, he said, this statute prevents things like the offer of a job to someone in exchange for their support for a particular candidate. "I cannot see how this statute can be reasonably applied to a candidate's own decision on whether to run in an election," Painter said.

"Based on the information disclosed from the White House, it's even more apparent that this is a non issue," Painter said. "No scandal. Time to move on."

CREW's Sloan: criminal allegations based on this interpretation of law are "ludicrous." In a May 27 blog post, NBC News' Mark Murray reported:

Melanie Sloan, the executive director of watchdog group Citizens for Responsibility and Ethics in Washington, said that criminal allegations in the Sestak case are "ludicrous." She points out that there has never been a prosecution under the 1972 law cited by the Senate Judiciary Committee Republicans. "There's no definition of 'political activity' within the law," she said. "It's really not a very well-written statute."

Legal experts and historians agree no crime was committed

Sloan: "Nothing even remotely close to the line" in Sestak allegations, "nothing illegal here." Asked by guest host Eliot Spitzer on the May 28 edition of MSNBC's The Dylan Ratigan Show whether there is "anything here that you think is even close to the line in terms of being criminal or improper," Sloan replied, "No, there is nothing even remotely close to the line." She added that "bribery is a tough case to prove. You need an official act in exchange for a thing of value. You just don't have that case here." She also said that "This may look a little bad, this may have the appearance problem, but there is simply nothing illegal here." She later added that "Mr. Sestak didn't have any kind of official act to trade. Not running for Congress, not running for Senate, can't be an official act, which is the kind of thing he would have to exchange for that thing of value."

Spitzer identifies the "significant problems" with claims that a crime was committed. On the May 28 Dylan Ratigan Show, Spitzer stated of allegations that a crime was committed:

[T]here are least two significant problems here. First, [Sestak] was offered a non-paying role on an advisory committee. That's not a job. That's really -- there's nothing tangible to it. He was being asked to render advice. And second, there's no articulation of a quid pro quo. There was never, "Now you must support Arlen Specter in return for this." It was really an articulation of, "Wouldn't you do better as a member of Congress, an admiral -- retired three-star admiral, to lend your expertise through this other venue?" And it helps the party -- sure, it helps the party, but this is politics. Nothing close to a quid pro quo that is within the ambit of what this statute is designed to address.

Former Justice Department senior attorney Cooper: Allegations don't "sound to me as the sort of thing that any reasonable prosecutor would view as criminal." In a May 28 article, Huffington Post reported that James Cooper -- formerly a "senior Justice Department attorney and Assistant U.S. Attorney for the District of Columbia, where he was the Deputy Chief of the Criminal Division" -- stated of the allegations:

"I have seen the White House description of what occurred. ... Certainly, as described, it does not sound to me as the sort of thing that any reasonable prosecutor would view as criminal. It seems to me that this is the political process at work... I don't understand as a legal matter how a prosecutor could sustain a case charging either party in this matter. I don't know of any precedent off the top of my head for anybody being prosecuted in this context."

Former public corruption prosecutor Bunnell: "I don't see anything criminal about what happened." Huffington Post further reported:

"I looked through it," Steve Bunnell of the firm O'Melveny & Myers, said of the job-offering related document released by the White House on Friday. "I don't see anything criminal about what happened. Basically you are talking about political horse-trading, which strikes me as an inherent part of democracy. There is nothing inherently bad about it unless you think politics and democracy are bad."

Formerly the Chief of the Criminal Division of the U.S. Attorney's Office for the District of Columbia, Bunnell has no shortage of exposure with public corruption cases. The Sestak scandal not only passes the smell test, it doesn't really smell, he said. Bunnell isn't alone in his reading of the issue's legal underpinninings.

[...]

Bunnell, for one, noted the firing of U.S. Attorneys during the Bush years, in which officials were dismissed ostensibly for the purpose of benefiting Republican congressional candidates. Compared to that, he added, the Sestak saga "looks silly."

"It may be bad government in some context," he said, "but other then entering an election season, I don't understand what the big deal is."

Law professor Hasen: Court unlikely to interpret statute in a way that would "render politics as usual illegal." Murray further reported:

Rick Hasen, the author of Election Law Blog and a professor at Loyola Law School in Los Angeles, points out that the law appears to be so broad that it could apply to anyone who works on a federal campaign, and ends up with a job working for the victorious candidate.

"If an interpretation of a statute would seem to render politics as usual to be illegal, then the courts could well say that this is not what the statute means," Hasen said.

Law professor Lowenstein: Situation is "viewed as politics as usual," not something subject to criminal prosecution. Murray further reported: " 'As a general matter, this kind of situation is viewed as politics as usual,' added Professor Daniel Lowenstein of UCLA Law School. 'It's just not the kind of the thing that is usually dealt with in a criminal prosecution.' "

Justice Department Public Integrity lawyer Zeidenberg: "Horrible precedent" to treat "horsetrading" "in the criminal context." In a May 25 post, Talking Points Memo's Zachary Roth quoted Peter Zeidenberg, a former federal prosecutor with the Justice Department's Public Integrity unit, saying "Talk about criminalizing the political process!... It would be horrible precedent if what really truly is political horsetrading were viewed in the criminal context of: is this a corrupt bribe?"

Bush political director Kaufman: "Tell me a White House that didn't do this, back to George Washington." The New York Times reported that Ron Kaufman, who served as President George H.W. Bush's White House political director, "said it would not be surprising for a White House to use political appointments to accomplish a political goal. 'Tell me a White House that didn't do this, back to George Washington,' Mr. Kaufman said."

Wash. Post: "[E]thics laws do not seem designed for this circumstance." In a May 25 editorial, The Washington Post stated: "Would it be illegal? Mr. Specter said so, but ethics laws do not seem designed for this circumstance. Ordinarily, bribery takes place in the opposite direction: Government officials aren't usually the ones offering something of value. Other statutes prohibit officials from using their power to interfere in an election, or to, directly or indirectly, promise a job as 'reward for any political activity.' But these have been understood to prevent official coercion, not criminalize horse-trading." The editorial continued:

Still, the White House position that everyone should just trust it and go away is unacceptable from any administration; it is especially hypocritical coming from this one. "I'm not going to get further into what the conversations were," Mr. Gibbs said Sunday. "People that have looked into them assure me that they weren't inappropriate in any way." This response would hardly have satisfied those who were upset during the previous administration about the firing of U.S. attorneys. If there was nothing improper, why not all that sunlight Mr. Obama promised?

Historian Russell Riley: "It is completely unexceptional." On May 27, The Huffington Post's Sam Stein reported, "As the Republican Party works itself into a lather over the Obama administration's offer of a job to Rep. Joe Sestak (D-Penn) in exchange for him not entering the Pennsylvania Senate primary, seasoned political observers, historians, and lawyers are responding with veritable yawns."

Historian George Edwards: "All this is old news historically." Stein further reported, "George Edwards, a Distinguished Professor of Political Science and Jordan Chair in Presidential Studies at Texas A&M University, says: 'There is no question whatsoever that presidents have often offered people positions to encourage them not to do something or make it awkward for them to do it. Presidents have also offered people back-ups if they ran for an office and lost. All this is old news historically.' "

Ethics attorney Stan Brand: "Crime" charge is "far-fetched" and has "no legal substance." A May 27 Mother Jones article discussed Rep. Darrell Issa's (R-CA) allegation that a crime has been committed and quoted Stan Brand, a Washington, D.C., ethics attorney, responding that the claim was "far-fetched." Mother Jones further reported:

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."

GOP attorney reportedly calls claims "crap." Mother Jones reported, "Another DC-based Republican attorney -- who doesn't want to talk about this on the record -- calls Issa's argument "crap."

Network/Outlet
Fox News Channel
Person
Stephen F. Hayes, Bret Baier
Show/Publication
Special Report with Bret Baier
We've changed our commenting system to Disqus.
Instructions for signing up and claiming your comment history are located here.
Updated rules for commenting are here.