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Experts: Sestak job offer politics as usual

From msnbc.com's Carrie Dann
President Obama today said that his administration will "shortly" release an official response to allegations that the White House offered Rep. Joe Sestak a job in exchange for not challenging Sen. Arlen Specter in the Pennsylvania Democratic primary. "I can assure the public that nothing improper took place," Obama said.

Sestak first publicly made the claim last February, but he has refused to elaborate on whom in the administration he spoke to, or what particular job was discussed.  

With details of the alleged exchange still unknown, a prevailing question remains about the issue that some Republicans hope to cast as a ruinous scandal for the White House: Could an actual crime have been committed?

GOP Rep. Darrell Issa, the ranking member of the House's government watchdog committee and one of the earliest and loudest critics of the alleged offer, has cited three federal laws that may have been violated by an offer of employment to Sestak by a representative of the White House -- all of which are misdemeanors. One prohibits "solicit[ing] or receiv[ing] any thing of value" in exchange for an appointment to a public office. Another law bans any administrative employee of the federal government from "using his official authority for the purpose of interfering with or affecting" an election.

A third law -- one cited by Senate Judiciary Committee Republicans in a letter yesterday urging Attorney General Eric Holder to appoint a special prosecutor to investigate the case –- makes it illegal to promise an employment position "as consideration, favor, or reward for any political activity."

In legalese, such terms could be difficult to define. Would Sestak's decision not to run have qualified as "political activity"? What constitutes a "thing of value"? Could the statute be interpreted in a way that could criminalize even fairly routine actions, like an administration official's granting of a tropical ambassadorship to a reliable former fundraiser, or a congressman's endorsement of a Senate candidate based upon the promise of legislative collaboration?

Legal experts say that such ambiguity would make a case very difficult to prosecute, no matter what the particulars of the Sestak matter may have been.

Rick Hasen, the author of Election Law Blog and a professor at Loyola Law School in Los Angeles, points out that the law appears to be so broad that it could apply to anyone who works on a federal campaign, and ends up with a job working for the victorious candidate. 

"If an interpretation of a statute would seem to render politics as usual to be illegal, then the courts could well say that this is not what the statute means," Hasen said.

"As a general matter, this kind of situation is viewed as politics as usual," added Professor Daniel Lowenstein of UCLA Law School. "It's just not the kind of the thing that is usually dealt with in a criminal prosecution."

Melanie Sloan, the executive director of watchdog group Citizens for Responsibility and Ethics in Washington, said that criminal allegations in the Sestak case are "ludicrous." She points out that there has never been a prosecution under the 1972 law cited by the Senate Judiciary Committee Republicans. "There's no definition of 'political activity' within the law," she said. "It's really not a very well-written statute."

Debate over vague wording of a law is not unprecedented in a campaign bribery case. In 1986, a Superior Court judge dismissed bribery charges against Rep. Bobbi Fiedler, a candidate in the California GOP Senate primary. Fiedler and an aide were indicted on charges that they offered primary opponent state Sen. Ed Davis $100,000 to drop out of the race. But California Judge Robert Altman ruled a month later that the state election law under which Fiedler had been charged was too vague about what kind of conduct it prohibited.

"On the face of it, it seems to address things most people would think were wrong. But it also could be applied to conduct that no one would want it to apply to," Altman said at the time.