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Sestak-Obama Job Offer: Legal Case Against It 'Looks Silly', Say Public Integrity Lawyers

First Posted: 05/28/10 04:34 PM ET Updated: 05/25/11 05:35 PM ET

Sestak

The saga surrounding the White House's floating of a job to Rep. Joe Sestak (D-Penn.) in the early summer months of 2009 took on new levels of political drama Friday following the release of more detailed information about the offer.

But as both political sides reorient themselves around the fault lines, the more fundamental question of whether laws were actually broken seems to get more dull.

In interviews with the Huffington Post, two prominent public integrity lawyers with white-collar crime and Justice Department experience say that if the White House and Sestak's account of what happened is to be believed, then no sober-minded prosecutor would pursue the case.

"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.

"I have seen the White House description of what occurred," said James Cooper, formerly Deputy Chief of the Criminal Division at the Justice Department and now with the firm Arnold & Porter. "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."

All of which, undoubtedly, will do little to diminish the political theatrics surrounding the Sestak saga. On Friday, the White House released a memo designed to defuse the controversy once and for all. The contents revealed that Bill Clinton had approached Sestak prior to the congressman entering the Pennsylvania Senate Democratic primary. The former president, on behalf of White House Chief of Staff Rahm Emanuel, presented the idea that Sestak would serve in an uncompensated advisory role while remaining in the House. Sestak ultimately turned down the offer.

Forced to judge the information with the knowledge of who provided it, the reaction has been predictable. Sestak himself put out a statement backing up the White House's retelling of events and declaring that his focus was squarely on the campaign. Republicans aren't so forgiving. RNC Chairman Michael Steele said that the administration memo "frankly raises more questions."

Rep. Darrell Issa (R-Cali.), who as ranking member of the House Committee on Oversight and Government Reform has spearheaded the charge to investigate the job offer, was even more critical.

"I'm very concerned that in the rush to put together this report, the White House has done everything but explain its own actions and has instead worked to craft a story behind closed doors and coordinate with those involved," he said in a statement. "The White House has admitted today to coordinating an arrangement that would represent an illegal quid pro quo as federal law prohibits directly or indirectly offering any position or appointment, paid or unpaid, in exchange for favors connected with an election."

But Issa's reading of the law is a narrow one, both Bunnell and Cooper argue. There was no money offered or threats made, they note. And while the administration did dangle the prospect of serving in a non-compensated position, it hardly constituted the type of ethical indiscretion that spurred investigations in the past.

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."

In addition, Richard Painter, the chief White House ethics officer under George W. Bush, dismissed the "scandal," telling the Plum Line's Greg Sargent that it's time for Republicans to "move on."

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