Legal experts debunk Hannity's Sestak "crime" claims point-by-point

››› ››› MATT GERTZ

Over the past week, Sean Hannity and his guests have cited six different statutes that they claim were violated when the White House offered a position on a panel to Rep. Joe Sestak. Legal experts have repudiated the claim that any of those statutes apply to the offer.

18 U.S.C. § 600: Promise of employment or other benefit for political activity

The claim. Hannity has repeatedly claimed the Sestak offer violated 18 U.S.C. § 600. For example (accessed from Nexis):

  • On the May 26 edition of Fox News' Hannity, discussing laws he believes were violated by the Sestak offer, Hannity said, "We have 18 U.S. Code 600 says that the -- a federal official cannot promise employment, a job in the federal government in return for a political act."
  • On the May 26 edition of Hannity, discussing laws he believes were violated by the Sestak offer, Hannity said, "All right, 18 U.S. Code 600 says a federal official cannot promise employment, a job in the federal government in return for a political act."
  • On the May 27 edition of his Fox News program, Hannity said, "Eighteen U.S. Code 600 says a federal official cannot promise employment, a job in the federal government in return for a political act," and concluded, "Seems to me that Joe Sestak is claiming a felony was committed."
  • On the May 28 edition of Fox News program, Hannity said that 18 U.C.S. § 600 was "almost written" to ban acts like the Sestak offer. He later said that the offer was "by my interpretation of the law, still be a thing of value for a political act... Which is against the law. U.S. Code 18, U.S. Code 600, 18 U.S. Code 210, 211."

The statute. 18 U.S.C. § 600 reads:

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.

The rebuttals. Legal experts have rebutted the claim that the Sestak offer violated 18 U.S.C. § 600, including:

  • Bush ethics lawyer Painter: "I cannot see how this statute can 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."

  • Law professor 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.

  • Bush AG Mukasey: Based on White House and Sestak statements, offer "doesn't violate the statute." 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."
  • 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."

18 U.S.C. § 201: Bribery of public officials and witnesses

The claim. Hannity has repeatedly claimed the White House attempted to "bribe" Sestak. On the May 26 edition of his Fox News show, Hannity said, "news of the White House's alleged attempt to bribe Congressman Joe Sestak into dropping out of the Pennsylvania Senate race has lingered in the public for four months now and the longer it does so the more bizarre it becomes." Later on the same program, Hannity stated of the offer, "I believe this is a bribe."

The statute. 18 U.S.C. § 201 reads in part:

(b) Whoever --

[...]

(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent --

(A) to influence any official act; or

(B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person;

shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.

The rebuttals. Legal experts have denied that the Sestak offer violated the federal bribery statute, including:

  • Painter: Job offer "is hardly a 'bribe.'" In a May 24 blog post, Painter wrote:

The allegation that the job offer was somehow a "bribe" in return for Sestak not running in the primary is difficult to support. Sestak, if he had taken a job in the Administration, would not have been permitted to run in the Pennsylvania primary. The Hatch Act prohibits a federal employee from being a candidate for nomination or election to a partisan political office. 5 U.S.C. § 7323(a)(3). He had to choose one or the other, but he could not choose both.

The job offer may have been a way of getting Sestak out of Specter's way, but this also is nothing new. Many candidates for top Administration appointments are politically active in the President's political party. Many are candidates or are considering candidacy in primaries. White House political operatives don't like contentious fights in their own party primaries and sometimes suggest jobs in the Administration for persons who otherwise would be contenders. For the White House, this is usually a "win-win" situation, giving the Administration politically savvy appointees in the Executive Branch and fewer contentious primaries for the Legislative Branch. This may not be best for voters who have less choice as a result, and Sestak thus should be commended for saying "no". The job offer, however, is hardly a "bribe" when it is one of two alternatives that are mutually exclusive.

  • Sloan: "There's no bribery case here." Talking Points Memo's Zachary Roth reported in a May 25 post that Sloan had said of the Sestak offer, "There is no bribery case here... No statute has ever been used to prosecute anybody for bribery in circumstances like this." Likewise, in a May 28 MSNBC appearance, Sloan stated 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 added: "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."

18 U.S.C. § 210, 211: Acceptance or solicitation to obtain appointive office, offer to procure appointive public office

The claim. Hannity has repeatedly stated that the Sestak offer violated 18 U.S.C. § 210 and 211. For example (accessed from the Nexis database):

  • One the May 26 edition of his Fox News program, Hannity said that President Obama's "lawyers know that he's got -- he's got a legal issue before him. There's somebody in the White House that made this offer. They know the U.S. code, which I've been citing all night that Juan [Williams] doesn't want to take as gospel." Hannity then cited "U.S. Code 210, 211."
  • On the May 27 edition of his Fox News program, Hannity stated, "If we go to Section 18, USC, U.S. Code 210, 211, you cannot accept anything of value in return for hiring." He concluded, "that's a felony." Later on the same program, Hannity said, 'U.S. Code Section 18 210, 211 says you can't accept anything of value in turn for hiring. Seems to me that Joe Sestak is claiming a felony was committed."
  • On the May 28 edition of his Fox News program, Hannity said that the Sestak offer was "against the law," citing "U.S. Code 210, 211."

The statute. 18 U.S.C. § 210 reads:

Whoever pays or offers or promises any money or thing of value, to any person, firm, or corporation in consideration of the use or promise to use any influence to procure any appointive office or place under the United States for any person, shall be fined under this title or imprisoned not more than one year, or both.

18 U.S.C. § 211 reads:

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.

The rebuttal. Legal experts who have rebutted the contention that the Sestak offer violated these statutes include:

  • Ethics attorney Stan Brand: Job offer does not constitute "something of value." May 27 Mother Jones article discussed Rep. Darrell Issa's (R-CA) allegation the Sestak offer had violated three statutes, including 18 U.S.C. § 211 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."

  • Sloan: Sestak didn't "have any kind of official act to trade." On MSNBC, Sloan stated: "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." Likewise, in an interview with CNS News, Sloan reportedly stated, "A quid pro quo has to offer something of value in exchange for something... If you agree not to run for the Senate and we'll make you secretary of the Navy -- that offers no monetary value. It's just the unseemly side of politics."

18 U.S.C. § 595: Interference by administrative employees of Federal, State, or Territorial Governments

The claim. On the May 28 edition of Hannity, guest Jay Sekulow claimed that the Sestak offer violated 18 U.S.C. § 595. On the June 1 edition, Sekulow said that the statute "reads almost verbatim as to what happened here. And what you've got is a situation. It's very clear. The White House interfering with these campaigns, trying to get individuals not to run basically, you know, with these positions."

The statute. 18 U.S.C. § 595 reads in part:

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.

The rebuttal. On the May 28 America Live, Mukasey said it "really is a stretch" to claim the offer violated 18 U.S.C. § 595, 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. I mean, understand that politics is practiced in a variety of ways, including by suggesting to people that there are things that they might better do with their careers than what they intend to do."

Hatch Act

The claims. Hannity and his guests have claimed that the Sestak offer violated the Hatch Act. For example (accessed from the Nexis database):

  • On the May 26 edition of Hannity, discussing laws he believes were violated by the Sestak offer, Hannity said that "the Hatch Act prohibits employees of the executive branch from using, quote, 'his official authority or influence for the purpose of interfering with or affecting the result of an election.'"
  • On the May 26 edition of Hannity, guest Scott Coffina claimed that the offer was a "clear violation of the Hatch Act."
  • On the June 1 edition of Hannity, Sekulow stated that the Hatch Act "reads almost verbatim as to what happened here."

The statute. According to the U.S. Office of Special Counsel: "The Hatch Act restricts the political activity of individuals principally employed by state or local executive agencies and who work in connection with programs financed in whole or in part by federal loans or grants."

The rebuttal. 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.

Experts also broadly dismiss the idea that a crime was committed

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." A May 28 Huffington Post article 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." 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."

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."

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.' "

Posted In
Elections, Election Law, Government, The Senate
Network/Outlet
Fox News Channel
Person
Sean Hannity
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