Opinion

Sestak, Clinton, and Obama: Was it a bribe?

Bill Clinton’s offer to Joe Sestak may be unseemly, but it doesn’t appear to break federal law.

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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 – 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’s nomination earlier this month.

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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’s therefore worth looking at the text of the principal federal bribery statute, 18 U.S.C. Section 201, which makes it a crime to “corruptly ... give, offer, or promise ... anything of value ... to a public official ... with intent to influence” that official in “an official act.”

The first point to make is that Sestak, the congressman, would certainly count as a “public official.”

Second, even an unpaid, advisory job in the White House or Pentagon could constitute “something of value” 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’s account, it sounds like Clinton’s offer was made “with an intent to influence” Sestak’s behavior. Bauer, after all, conceded that the “Democratic Party leadership had a legitimate interest in averting a divisive primary fight.” 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 “official act.”

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’s 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’m 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 – or not to run – 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’s not bribery if the would-be candidate’s 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’s 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’t help that the White House’s 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 “Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime.”

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