The White House Lives Up To A Low Standard.

Cynical, Not Criminal
The White House lives up to a low standard.
By JAMES TARANTO

(Best of the Tube This Weekend: We'll be on "The Journal Editorial Report" tomorrow, discussing the Obama administration's offers to Joe Sestak and Andrew Romanoff. Tune in at 2 and 11 p.m. ET on Fox News Channel--or, if you're up late, at 6 a.m. Sunday.)

The Obama administration has given the editorialists of the New York Times an opportunity to look high-minded, no matter how hypocritical their protests may be:

With one questionable phone call to a Colorado Senate candidate, the White House has again found itself on the defensive over its maladroit political operation. If it does not want a reputation as a full-employment clearinghouse for unapproved candidates, or further invite an investigation, the administration needs to impose some common sense on that operation--and soon.

Last week, the White House was fumbling to explain why it dangled a presidential appointment in front of Joe Sestak to get him to drop out of the Pennsylvania Senate primary. This week, the controversy is over Andrew Romanoff, the former speaker of the Colorado House. . . .

The White House appears to have been careful to walk right up to the line without crossing it. But it looks crude and thoughtless and breaks President Obama's promise to play by a different rule book that does not include seeing how much his aides can get away with.

The Obama team has also given the Republicans an opportunity to look high-minded on the issue, no matter how hypocritical their protests may be.

Assuming that the White House's accounts of the facts are accurate, the Times is probably right that the administration did not cross the legal line. Here is the relevant statute, 18 U.S.C. Section 600:

Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both.

The Sestak offer would seem not to run afoul of this statute. According to White House Counsel Robert Bauer, "efforts were made . . . to determine whether Congressman Sestak would be interested in service on a Presidential or other Senior Executive Branch Advisory Board," a position that "would have been uncompensated."

James Taranto on the Sestak and Romanoff cases.

Obama detractors point out that the language of the statute--"any . . . position"--does not exclude unpaid positions. The crucial language here, though, is "provided for or made possible . . . by any Act of Congress." The specific presidential panel that has been cited in news articles, the Intelligence Advisory Board, was created by executive order and hence would not be covered.

The Romanoff case is murkier. The jobs in question, at the U.S. Agency for International Development, clearly would have been covered by the law. The Washington Times quotes press secretary Robert Gibbs: "Let's be clear: There wasn't a job offered. There wasn't a job promised. Mr. Romanoff applied for a job in government service during the transition." Earlier, Gibbs had explained Romanoff's email exchange with Jim Messina, the deputy chief of staff:

In an early-morning e-mail to reporters Thursday, Mr. Gibbs said Mr. Messina "wanted to determine if it was possible to avoid a costly battle between two supporters."

He said Mr. Romanoff had applied for a position at USAID during the transition and followed up after Mr. Obama took office. Mr. Messina contacted Mr. Romanoff in September, according to the e-mail released by the campaign.

"Romanoff said he was committed to the Senate race and no longer interested in working for the administration, and that ended that discussion," Mr. Gibbs said. "As Mr. Romanoff has stated, there was no offer of a job."

The remaining question is one of interpretation. Gibbs is fairly clear in denying there was a direct promise of a job if Romanoff quit the race, but the law would still have been broken if someone "indirectly" made such a promise. But how would a prosecutor prove beyond a reasonable doubt that a promise was indirectly made? It may be possible, but the exacting standard of criminal guilt poses a problem in light of the vagueness of the law's prohibition.

Scott Coffina, a White House associate counsel during George W. Bush's administration, argues that the Sestak offer violated administrative law:

The Hatch Act makes it illegal for a federal employee to use his official position or authority to interfere with or affect the result of an election. Unquestionably, the chief of staff's offer of a presidential appointment to get Congressman Sestak to drop out--even if conveyed through his emissary Bill Clinton--constitutes the use of his official position to interfere with the result of an election. It could cost him his job.

The Hatch Act does exempt "an employee paid from an appropriation for the Executive Office of the President" from its ban on political activities while "on duty." But the prohibition against using "official authority or influence for the purpose of interfering with or affecting the result of an election" applies on or off duty and thus would seem, at least in theory, to cover even top White House staffers.

We wouldn't bet on the U.S. Office of Special Counsel, the independent agency responsible for Hatch Act enforcement, opening an investigation into the matter. We'd definitely bet against the appointment of a special prosecutor or against a serious congressional investigation this year. But January will bring a new Congress, and the prospect of Rep. Darrell Issa chairing an investigative committee has got to make President Obama nervous. Even if there's no underlying crime, as in the Valerie Plame kerfuffle, a zealous investigation can create further crimes of perjury or obstruction of justice.

At any rate, to say that the president's men don't seem to have committed any federal crimes that we know of is rather faint praise. Obama has certainly made fools of all who believed his campaign rhetoric about vanquishing cynicism. He tried to clear the field for the re-election of Arlen Specter, for crying out loud. It doesn't get more cynical than that.