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Did Joe Sestak/Bill Clinton Conversation Break the Law?


The White House enlisted the help former President Bill Clinton to offer Congressman Joe Sestak unpaid positions in the Executive Branch, but is flatly denying any of the overtures were improper or illegal.

In a legal memo today, White House Counsel Robert Bauer said the Democratic Party had a "legitimate interest in averting a divisive primary fight." He said it was believed that Sestak could continue to serve in the House while also taking on additional responsibilities in the Executive Branch.

Bauer said Chief of Staff Rahm Emanuel asked President Clinton to see if Sestak would be interested in serving on a presidential or other senior executive branch advisory board if he would stay in the House. Sestak declined, Bauer wrote, and remained committed to his Senate candidacy.

Bauer said allegations of improper White House conduct in the Sestak case "rest on factual errors and lack a basis in the law."

Some Republican lawmakers have questioned whether the offers to Sestak violated federal bribery or extortion statutes. Lawyers said the outreach may have amounted to a technical violation of the law--although they said it's also the kind of thing that happens all the time in Washington.

"It's not the kind of thing anybody likes to talk about, but it does go on," said former Reagan Justice Department official Michael Carvin. "But it does fall within the literal language of the statute."

Last month, Rep. Darrell Issa, a California Republican, urged Atty. Gen. Eric Holder to open an independent investigation, arguing the efforts may have violated several federal statutes that are designed to prevent bribery and extortion. Those statutes generally are designed to criminalize situations where, for example, a person would be promised a job if he made a sizable campaign contribution.

One statue that Issa mentioned prohibits a person from promising employment or a position as "consideration" or "reward" for "any political activity." So the argument would be that Emanuel and Clinton promised Sestak a position on an Advisory Board as a reward for the political activity of dropping out of the Senate race.

But Bauer strongly defended the administration's role in reaching out to see whether Sestak would be interested in Executive Branch positions, in lieu of running for Senate. He said the discussions "are fully consistent with the relevant law and ethical requirements."

"There have been numerous, reported instances in the past when prior Administrations--both Democratic and Republican, and motivated by the same goals--discussed alternative paths to service for qualified individuals also considering campaigns for public office," Bauer wrote. "Such discussions are fully consistent with the relevant law and ethical requirements."

Carvin, who represented George Bush in the 2000 election battle, said these issues most frequently arise after redistricting efforts, when legislative districts are eliminated and the parties or administration try to induce candidates not to run. He said he couldn't recall the law ever being enforced in a situation like Sestak's.

One White House official noted, for example, that when New York Rep. Ben Gilman's House district was eliminated and he was contemplating a bid from another district, the Bush White House in 2002 sought to find an Executive Branch job to make use of his foreign affairs expertise--and discourage him from running in the adjoining district.

Bauer said the White House did nothing wrong in the Sestak case, either.

"There was no such impropriety," Bauer wrote. "By virtue of (Sestak's) career in public service, including distinguished military service, Congressman Sestak was viewed to be highly qualified to hold a range of advisory positions in which he could, while holding his House seat, have additional responsibilities of considerable potential interest to him and value to the Executive Branch," Bauer wrote.

Bauer flatly denied Sestak was offered Secretary of the Navy, noting that President Obama announced he would nominate Ray Mabus in March 2009--more than a month before Arlen Specter announced he was switching parties.

"At no time was Congressman Sestak offered, nor did he seek, the position of Secretary of the Navy," Bauer wrote.