Rep. Issa Declares Sestak "Scandal" A Crime

May 27, 2010 11:32 am ET

During an appearance on Fox News' Hannity, Rep. Darrell Issa (R-CA) asserted that the ongoing "scandal" of the Joe Sestak job offer was a crime.  However, his declaration is nothing more than political posturing because there has been no official investigation and experts say that a job offer would not have been against the law.

Rep. Darrell Issa: "It Is A Crime"

SEAN HANNITY, HOST: All right, can we first establish, Congressman, that if in fact he was offered a job to get out of the race that that is a crime?

REP. DARRELL ISSA (R-CA): It is a crime. There's no question that anything as you saw in Illinois in trade for an office is criminal to offer. You cannot offer these positions in return for anything of value.

[...]

HANNITY: ...So I would think any position is by definition against the law because it's something of value. So that's where we stand, right?

ISSA: Absolutely, Sean. And, you know, many get confused because politics does have a dirty little secret which is that people help people get elected. And then those who helped them get elected often get positions.

Where you cross the line is when you have the power to do it and you make a promise. And it's very clear that that's what Congressman Admiral Sestak has said is, that a person of power in the White House offered him this position in return for getting or not getting into the race...

HANNITY: Yep.

ISSA: ...and that violates several laws.

[...]

HANNITY: ...Republicans now come back today and they said no, no, no, we want a prosecutor here.

What do you think the chances are you'll be able to get this?

ISSA: Well, I've always wanted - Sean, I've always wanted an answer. And if I got an answer from the White House even if I didn't like it that would take care a great deal for you and for me.

Having said that, when seven senators in the Senate say that they wanted the implied threat is or judges aren't going to get confirmed and other things that the president wants that even the minority can do in the Senate, it becomes serious enough that I suspect in the next couple of days, we're going to get something that the White House believes will put this matter behind us.

Innocent Until Proven Guilty? There Has Been No Trial Or Investigation

The Constitution Prohibits The Government From Making Personal Accusations When The Person In Question Doesn't Have The Ability To Defend Themselves.  According to the ACLU: "The Constitution of the United States prohibits the government from accusing a person or an organization of being a criminal without a forum for them to defend themselves or clear their names. Individuals and organizations have a Fifth Amendment right to be free of government-imposed stigma against their good names and reputations. The Department of Justice's policy manual specifically warns U.S. Attorneys, that 'there is ordinarily 'no legitimate governmental interest served' by the government's public allegation of wrongdoing by an uncharged party.'" [ACLU, 6/18/10]

The Job Offer Timeline Doesn't Add Up

Obama Administration Announced Nomination For Secretary Of Navy Before Sen. Specter Became A Democrat.  David Weigel of the Washington Post wrote: "On March 27, 2009, the administration nominated Ray Mabus as secretary of the Navy. It wasn't until April 28 that Specter became a Democrat, and by Sestak's own recollection, he was literally being courted to run the day that news broke. On May 18, the Senate confirmed Mabus. And on May 29, Sestak entered the Senate race." [Washington Post, 5/25/10]

Unlikely That A Crime Was Committed

CREW: "There Is No Bribery Case Here."  Talking Points Memo reported:  "Melanie Sloan, a former federal prosecutor who as the head of Citizens for Responsibility and Ethics in Washington isn't known for going on easy public corruption, concurred. 'There is no bribery case here,' she said. 'No statute has ever been used to prosecute anybody for bribery in circumstances like this.' Sloan added that Issa's move was more about politics. 'It's not at all about whether there was actual criminal wrongdoing,' she said. 'It's about how to go after Sestak.'" [Talking Points Memo, 5/25/10]

Bush Ethics Lawyer: Bribe Allegation "Is Difficult To Support."  Richard Painter, a former chief ethics laywer in the Bush administration, 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. [Legal Ethics Forum, 5/24/10]

The New Republic: "There Is No Credible Charge Here."  According to Jonathan Chait of The New Republic: "You don't have to rely on the "the word of White House officials." There's no such thing as offering somebody a job in return for them dropping out of a Senate race. The acceptance of a job means dropping out of a Senate race. The concept of offering somebody a job 'in exchange' for them declining to seek another job is like offering to marry a woman in exchange for her not marrying some other guy. It's conceptually nonsensical. The [George W. Bush] Plame allegation was a story because there was a credible charge of law-breaking. There is no such credible charge here." [The New Republic, 5/26/10, emphasis added]

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