Sestak, Clinton, and Obama: Was it a bribe?
| Newark, N.J.
Did the Obama White House make an illegal offer to a member of Congress in order to influence the Democratic Senate primary contest in Pennsylvania? If so, who made the offer 鈥� and might it be an impeachable offense?
Today, the White House sought to put to rest those breathless questions raised by both political opponents and the media. According to a report from White House Counsel Robert Bauer, it was none other than Bill Clinton who offered Rep. Joe Sestak not the position of Secretary of the Navy, as various conservative pundits had alleged, but rather an unpaid, advisory position if he would stay in his job as a congressman and decline to take on Senator Arlen Specter in the primary.
Sestak, of course, declined to drop out and went on to win his party鈥檚 nomination earlier this month.
Mr. Bauer insists that nothing improper occurred, and that his report should put the matter to rest.
Is he right?
While there are a number of federal government ethics statutes that could conceivably be applicable here, the most serious potential charge that has been raised is plain old-fashioned bribery. It鈥檚 therefore worth looking at the text of the principal federal bribery statute, 18 U.S.C. Section 201, which makes it a crime to 鈥渃orruptly ... give, offer, or promise ... anything of value ... to a public official ... with intent to influence鈥� that official in 鈥渁n official act.鈥�
The first point to make is that Sestak, the congressman, would certainly count as a 鈥減ublic official.鈥�
Second, even an unpaid, advisory job in the White House or Pentagon could constitute 鈥渟omething of value鈥� for purposes of the statute, though the case admittedly does take on a less nefarious complexion than it would have had Sestak been offered the (paid) Navy job.
Third, even on Bauer鈥檚 account, it sounds like Clinton鈥檚 offer was made 鈥渨ith an intent to influence鈥� Sestak鈥檚 behavior. Bauer, after all, conceded that the 鈥�Democratic Party leadership had a legitimate interest in averting a divisive primary fight.鈥� It seems reasonable to infer that they wanted Sestak out and were willing to give him something in return.
The interesting question, though, is whether what Sestak was asked to do (or not do) constitutes an 鈥渙fficial act.鈥�
The essence of public bribery is using official powers for personal benefit. Had Sestak been offered a prestigious White House job, even an unpaid one, in return for performing an act such as, say, voting for the health care reform bill, there鈥檚 no question that that would have constituted the offer of a bribe. The issue is whether it is also an official act to agree to run or not to run for higher office.
I鈥檓 skeptical that it is.
Whether to run for office is a decision that a person makes in his capacity as a private individual, even if he happens to hold public office when he does so. An officer holder has no legal obligation to the public to run 鈥� or not to run 鈥� for any office. His only obligation is to perform his office, should he hold it, honestly.
A potential candidate may thus make a decision whether to run for office for any reason.
For example, it鈥檚 not bribery if the would-be candidate鈥檚 spouse or children ask him to forgo running for office so that he can spend more time at home, and promise him a home-cooked meal every night for dinner if he agrees.
Nor is it bribery for a Wall Street law firm to offer a potential candidate big bucks if he decides not to run for reelection and join its office instead. And even if President Obama himself had offered Sestak the Navy secretary job in return for his deciding not to run for office, that would not, in my view, constitute the offering of a bribe.
None of this is to say that the administration鈥檚 alleged conduct was not unseemly or even perhaps in violation of some other government ethics law. If nothing else, it seems as though the Obama administration, which had promised to adhere to a higher standard of ethics, is using much the same play book as earlier administrations. And it certainly doesn鈥檛 help that the White House鈥檚 intermediary was Bill Clinton, of all people. But, as far as the offer of a bribe goes, based on what we currently know, it looks like there never was one.
Stuart Green is a professor of law at Rutgers Law School and author of 鈥淟ying, Cheating, and Stealing: A Moral Theory of White-Collar Crime.鈥�
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