Hannity devotes show to discredited claim that Sestak job discussion was illegal

››› ››› TERRY KREPEL & MATT GERTZ

In a show devoted entirely to a White House offer to Rep. Joe Sestak (D-PA) of a position on a presidential panel, Sean Hannity joined several guests in portraying that offer as violation of the law. In fact, and numerous legal experts have stated that no crime was committed.

Guests join Hannity in portraying Sestak job discussion as against the law

Hannity: Sestak job discussion "was almost written for this law." On the May 28 edition of his Fox News program, after reciting from 18 U.S.C. § 600, a statute governing "the promise of employment or other benefit for political activity" that critics have said was violated by the offer, Hannity said of the job discussion, "It was almost written for this law." He later added that "any way you cut this, this would still by my interpretation of the law, still be a thing of value for a political act, which is against the law."

Morris: Position "valuable enough to qualify under that statute." Fox News contributor Dick Morris said, "The statute says you may not offer something of value. Well, if it was valuable enough to possibly get him out of the race, it's valuable enough to qualify under that statute." Morris added that the offer would be "grounds for impeachment if Obama knew about it."

Gingrich: Sestak, Romanoff, Blagojevich are a pattern of possible "felonies." After Hannity said that the offer was, "by my interpretation of the law, still be a thing a value for a political act, which is against the law," Fox News contributor Newt Gingrich said the offer, in addition to a purported offer to Colorado Senate candidate Andrew Romanoff and "the case, remember, with [Rod] Blagojevich, who asserts that people approached him about a Senate seat," "you could all of a sudden have a pattern of three different places where people were engaged in conversations that range from seriously wrong to felonies."

Seklow, Coffina agree laws were broken. Asked by Hannity if he had "any question whether a law was broken here based on the facts as we know them now," former Bush White House counsel Scott Coffina said, "I don't. ... The story is quite clear -- he was offered a job to drop out of the race." Conservative legal activist Jay Sekulow agreed: "Absolutely. Section 600 and the accessory acts also. Section 2 of 18 says if you're an accomplice also ... And 595." Coffina added, "Clear violation of the Hatch Act, Sean."

Johnson: "there is a basis to investigate at least three different federal crimes." Fox News legal analyst Peter Johnson Jr. asserted: "There needs to be, in my view, based upon the evidence that the White House has itself produced, there is a basis to investigate at least three different federal crimes ... and maybe others because we don't know what the facts are."

Law prof Hasen slams Fox's "breathless" Sestak coverage, dismantles criminality arguments

Hasen: "The coverage that I've seen" on Fox has been "pretty breathless," but allegations "much ado about nothing." During an interview on Fox's On the Record immediately following the Hannity program, Loyola law professor Richard Hasen commented, "The coverage that I've seen on your network sounds pretty breathless. It seems to me that this is really much ado about nothing."

Hasen: "I can't find a case" where statute "has ever been applied in this way." Discussing 18 U.S.C. § 600, Hasen stated:

HASEN: I went back and looked at this Section 600, the one that says about these job offers. That seems to be a statute that's really aimed at preventing patronage appointments. That is, you know, giving people who have done political favors for you jobs where they make money. I can't find a case where it's ever been applied in this way, and I think there are some good reasons why it probably shouldn't be. What we have here, really, is a political deal. It's a deal to say in order to strengthen the party, one of the two people competing should step aside. It's the kind of thing that happens all the time, and it's the kind of thing that probably is not what the statute was really designed to prevent.

Hasen also debunks notion that offer violates the Hatch Act. Asked whether the Hatch Act is relevant to this instance, Hasen stated:

HASEN: Well, you know, I haven't heard -- if you look at letter the Republican senators from the Judiciary Committee sent to Attorney General Holder asking for an investigation, they didn't cite the Hatch Act generally, it cited the Section 600, and I think there's a good reason for that. When you have the president of a particular party, the president is really the head of that party, and the president and the administration, they really wear two hats. This is true whether you're talking about Republican or Democratic administrations. That is, they have the political side, and they have their job as executive. And so long as they take steps to make sure that the two are not mixed -- for example, using government offices or using government resources to further political goals -- that's really been an accepted part of politics for a long time.

Legal and political experts and historians agree no crime was committed

CREW head 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," Melanie Sloan, a former federal prosecutor and executive director of the government watchdog group Citizens for Responsibility and Ethics in Washington, 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."

Former Bush AG Mukasey: Calling Sestak allegations a crime "really is a stretch." On the May 28 edition of Fox News' America Live, former Bush Attorney General Michael Mukasey said that it is "highly questionable there was a crime," adding that positions covered under 18 U.S.C. § 600 have to be "made possible, in whole or in part, by an act of Congress. In other words, it has to be a position that was created by an act of Congress or somehow partially created by an act of Congress. If it's not, then it doesn't violate the statute." Mukasey also said that it "really is a stretch" to claim there was a violation of the statute against interfering in Senate races, adding, "I think that it would have to be something much more direct than what we have here in order for it to violate the statute."

Political strategist Schoen: Conversation "didn't necessarily involve a thing of value." Fox News contributor Doug Schoen referenced Mukasey's comments during his May 28 appearance on Hannity. Schoen also said that "as I look at it, the conversation with President Clinton didn't necessarily involve a thing of value. Clinton immediately withdrew himself and said 'I thought you'd say that' when Sestak said 'I'm not really interested.' ... There was nothing really even approaching offer and acceptance. It was a subjective hypothetical conversation."

Political expert Sabato: Sestak allegations "trivial," "garden-variety politics." On the May 28 edition of Fox News' Your World, University of Virginia political science professor Larry Sabato called the allegations "garden-variety politics" and "absolutely trivial." He added, "Let's stop criminalizing garden-variety politics, which is what this is." Asked whether the offer gives him the "heebie-jeebies," Cavuto replied, "No," adding, "this is the way politics operates," and, "it seems to me that they're guilty of practicing politics, period, full stop."

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 underpinnings.

[...]

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 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."

Posted In
Elections, Election Law
Network/Outlet
Fox News Channel
Person
Sean Hannity, Dick Morris, Newt Gingrich, Jay Sekulow, Peter Johnson Jr., Scott Coffina
Show/Publication
Hannity
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