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Legality not clear in White House offer to Sestak

| Saturday, May 29, 2010

The White House's effort to get Rep. Joe Sestak to drop his primary challenge to Sen. Arlen Specter in exchange for an unpaid presidential advisory position falls into vague legal territory, law and public policy experts said.

Former President Clinton, at the behest of White House Chief of Staff Rahm Emanuel, offered Sestak a post on an unpaid presidential advisory board, the White House and Sestak said Friday.

Sestak rejected the offer, which would have allowed him to keep his hard-won congressional seat while clearing the way for Specter, whom President Obama endorsed. Sestak, 58, of Delaware County easily beat Specter, 80, of Philadelphia in Pennsylvania's Democratic primary May 18.

Federal law prohibits administration officials from using their authority "for the purpose of interfering with, or affecting, the nomination or the election of any candidate" for offices, including the Senate. But making political deals to clear a path for a party's preferred candidate is common practice, and Duquesne University law professor Bruce Antkowiak said he knows of no one prosecuted under the statute.

"That law, strictly speaking, is not well-enforced," said Mark Rozell, public policy professor at George Mason University. "But sorry to tell them, past non-enforcement does not render a criminal act legal."

Rep. Daryl Issa, R-Calif., who has urged an investigation since Sestak said in February that he was offered a job, accused the White House of admitting to "an illegal quid pro quo."

"The law applies to party leaders and elected officials in government, but the difficultly lies in judging when precisely the law has been broken," said Lara Brown, political science professor at Villanova University. She said the law is similar to campaign finance laws that ban explicit exchanges of donations for political favors — something rarely proved in court.

White House Counsel Robert Bauer, who wrote the Obama administration's report on the offer, denied that a crime occurred.

"Efforts were made in June and July of 2009 to determine whether Congressman Sestak would be interested in service on a presidential or other senior executive branch advisory board, which would avoid a divisive Senate primary, allow him to retain his seat in the House, and provide him with an opportunity for additional service to the public in a high-level advisory capacity for which he was highly qualified," Bauer wrote.

Sestak declined the offer.

"The former president said he knew I'd say that, and the conversation moved on to other subjects," said Sestak, who served as an adviser to Clinton during his administration, when Sestak was an admiral in the Navy.

Controversy sparked by Sestak's vague mention of a job offer remained muted for much of the primary campaign but roared back to life after his victory. Both he and the White House repeatedly refused to say what happened.

Republican and Democratic officials, from GOP members of the Senate Judiciary Committee to Democratic Gov. Ed Rendell, increased pressure on the Obama administration and Sestak in recent days to provide details.

"If this explanation is as innocent as it looks, I sure don't know why it took three months to say so," said Sestak's opponent in the November election, Pat Toomey, a Lehigh Valley Republican and former congressman. "The White House and Congressman Sestak should have been forthcoming a lot sooner."

Sestak said he stayed silent "because I didn't feel it was right for me, after being called by the former president of the United States, to talk about the details of that conversation."

"If the intention of releasing this memo was to put various allegations to rest, then it backfired," Rozell said. "This memo raises more questions than it answers. Why in the world would Sestak be interested in a non-compensated advisory board instead of a Senate run?"

Indeed, when Sestak was asked whether he was offered a "job," he said yes without mentioning anything about the offer's being for an unpaid position.

"I felt for my own personal accountability I needed to be honest, and I said yes," Sestak said. "I mean, I didn't try to parse the word there. And then I said after that 'no comment' to the follow-on questions that were asked, because I talked about my role in the matter, and I thought that was important for me to do."

Bauer's report, several analysts noted, is the work of the White House's legal advocate. The Justice Department last week rejected Issa's request for Attorney General Eric Holder to appoint an independent investigator.

"Discretion is vested in the attorney general in this regard," Antkowiak said. "Practically, to meet a threshold, Holder would have to determine a likelihood of criminal activity in a context in which investigation by normal Justice Department channels would present an appearance of impropriety."

Miami University of Ohio political science professor Ryan Barilleaux said the practice of trying to clear a political field for a candidate has happened several times in past administrations. President Reagan's administration, for example, offered former Sen. S.I. Hayakawa an ambassadorship if he'd drop out of a California Senate primary in 1981, Barilleaux said.

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