Rule Number One: When reporting a political story that may involve criminal conduct, read the relevant law first.
Leading media outlets have stated flat-out that there was nothing illegal about White House Chief of Staff Rahm Emanuel asking former president Bill Clinton to offer Rep. Joe Sestak a position on a federal commission if he stayed in the House, rather than challenging Sen. Arlen Specter in the Democratic primary. Politics as usual, they say. Everybody does it. A New York Times editorial dismisses the story as "Unintelligent Design," the Washington Post weighs in with its own assessment that "this is not a scandal. Not a crime. Not even into an ethical gray zone."
The media consensus is that the White House's only "crime" was (surprise, surprise) stalling reporters about their questions in the first place. David Gregory fumed about this on Hardball, Chris Matthews concurred, and MSNBC's Ed Schultz even blamed Sestak for not coming clean sooner. Said WaPo: "The unnecessary coverup, it turns out, is always worse than the non-crime."
But it's obvious that none of these folks have read the specific law involved. I, too, was entirely prepared to dismiss Rep. Darrell Issa's (R-CA) allegations of impropriety as politically motivated exaggerations. The guy doesn't exactly have a great track record, as a litany of bizarro actions proves.
But then I read the law. It's about electioneering, not federal bribery per se. But it's a criminal violation, and it still counts. [A previous version of this article incorrectly stated that this crime was a felony, not a misdemeanor.]
18 U.S.C. § 600 -- Promise of employment or other benefit for political activity
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.
Specter himself brought this law into play when during the primary Sestak raised the issue of the White House offering him a job. So it can't all be blamed on the Republicans. Here's what Specter told Andrea Mitchell in March:
"There is a specific federal statute, which makes it a bribe to make an offer for a public office. When I was district attorney, if somebody came and told me that, I would say, well, name names. Name dates. Name places. That's a very serious charge. It's a big black smear without specification. I'm telling you there is a federal crime, punishable by jail. Anybody who wants to say that ought to back it up."
So there's the current Democratic (formerly Republican) senator from Pennsylvania stating on the record that such action is a crime. The White House was on notice then that the media would be looking for smoking guns.
Yet the memo released by the White House counsel on May 28 to defend Emanuel never addresses this specific law, although it is clearly the statute in question. Instead, the counsel's office raises defenses that are obviously not relevant to the language of the statute, namely that the position offered Sestak was not paid. The electioneering law is very broadly written, prohibiting "any" benefit, paid or unpaid. The counsel's memo also repeatedly refers to "discussions" between Clinton and Sestak, with the implied defense that a "discussion" is not the same thing as a "promise." That's where I think the legal horse is buried, and any investigation would focus. However, the law also says that the promise can be made "directly or indirectly." This means, to me, that it can be implied as well as overt, and that it can be made through third parties. That means Emanuel would be as guilty as Clinton for the violation.
Here we go again. Are we back to what the definition of "is" is? Thursday's photo op with President Obama and former President Clinton was not exactly reassuring. One of the reasons I voted for President Obama is that I wanted the nation to be free of the cloud of impropriety that follows the Clintons like Charlie Brown's friend Pigpen. So when Obama filled his administration with former Clintonistas like Rahm Emanuel, I held my nose.
If Emanuel has any integrity himself, he will resign as soon as possible and make any legal defense, if he has one, as a private citizen. Known for his combative ways, Emanuel should have no qualms about falling on his own sword. The nation is facing an unprecedented combination of crises: the Wall Street meltdown, the Great Recession, and the worst oil pollution in human history that may well destroy the Gulf Coast. President Obama needs to be focused on the needs of the nation, not mired in the scandals of his staff. This is no time for another Scooter Libby/Valerie Plame affair. [Clarification: Meaning the White House should not become embroiled in defending a staff member, not that the alleged offenses are equivalent.]
As for President Obama, I think his worst offense was hiring Emanuel in the first place. Joe Conason said it best in Salon: "Obama should take the Sestak maneuver as an early warning against placing too much trust in his chief of staff, Rahm Emanuel, whose arrogance will surely cross a line someday if it has not already."
The consensus from many of the comments below is that most prosecutors would not waste their scarce resources on pursuing such a case, given that it is "politics as usual." According to one commenter, a database search shows that this law has never been used as a principal charge, only an "add on" when money bribes were involved. Another concern is that the law is overbroad, a fatal defect in criminal prosecutions. But there it is, on the books, wreaking havoc nonetheless. An offense may seldom be prosecuted but still illegal. N.B.: I did not say that Rahm Emanuel is guilty of violating the statute, only that the White House should not be embroiled in his defense.
Follow Linda R. Monk, J.D. on Twitter: www.twitter.com/LindaRMonkJD