June 9 (Bloomberg) -- A judge in New Orleans invites to lunch Davis McAlary, a cheerfully wacky musician in the HBO series “Treme.” McAlary is running for city council, mostly to help sell his CDs.
Over lunch, the judge tells McAlary he is polling at 4 percent, to the musician’s delight. However meager, McAlary’s support might force the judge’s favored candidate into a runoff with the other serious candidate, the judge says.
Seeing the way the conversation’s going, McAlary lights up at the possibility of a bribe to get out of the race. The judge offers his business card as a “get-out-of-jail-free card.” If McAlary drops out, he will have a friend in the courthouse the next, inevitable time he gets in trouble with the law.
Thrilled, McAlary (played by Steve Zahn) takes the deal.
New Orleans, fictional or otherwise, is hardly the standard against which public officials should measure themselves. But for an example of a deal that is actually illegal, that “Treme” episode captures it better than the White House’s recent attempts to clear away primary opponents for their favorite candidates.
Last fall, a White House aide dangled job openings in front of a Colorado politician, Andrew Romanoff, to dissuade him from running against Senator Michael Bennet.
And over in Pennsylvania, the White House enlisted former President Bill Clinton to try to talk Representative Joe Sestak out of challenging Senator Arlen Specter. During a conversation that Sestak says lasted a minute at most, Clinton suggested a spot on a presidential advisory board if Sestak stayed in the House.
Both men ran anyway. Sestak defeated Specter. The Colorado primary is set for August.
Beyond the fact that one scenario is fiction and the others not, and putting aside how easily McAlary folded while the real politicians said no, there is another distinction between the White House and “Treme” episodes.
The New Orleans judge offered to fix cases, which is clearly illegal. What the White House did comes close to the line but doesn’t cross it.
It’s unseemly. It’s clumsy. It’s a clear repudiation of Obama’s campaign promises to run a clean, transparent administration. But illegal? Nah.
Take the law initially known as An Act to Prevent Pernicious Political Activities when it passed in 1939. Unfortunately, that name fell out of use in favor of the simpler Hatch Act for the New Mexico senator who pushed it.
The law forbids on-the-job political work by government employees and bars officials from using their authority to influence elections.
That sounds like a fit, so some commentators have called the Hatch Act a legitimate vehicle for going after the Obama White House.
But trying to shorten the list of primary candidates isn’t the same as wielding your government authority to win votes, which was the target of the Hatch Act.
The only conduct that comes close to lawbreaking was using the White House computer server to e-mail job descriptions to Romanoff, according to Richard W. Painter, top legal ethics counsel to former president George W. Bush.
Even that, he says, is a mere “appearance” of a violation of the Hatch Act.
Around the Clock
White House officials are on the job, or at least on call, around the clock. So when they want to conduct personal business, including political work which the Hatch Act allows during their personal time, the question isn’t when they do it but whether they use government resources.
Deputy Chief of Staff Jim Messina probably shouldn’t have used White House e-mail when contacting Romanoff about possible jobs, says Painter, now a University of Minnesota law professor. But it isn’t as if it cost the taxpayers anything.
Besides, the e-mail arguably reflects official government business, which is fine.
Republican senators pressing for an investigation cite another law. It forbids promising a job, position “or other benefit” as a reward for supporting or opposing a political candidate or “in connection with any primary election.”
Voila! That’s what Clinton did when he offered Sestak a place on a White House advisory board to get out of Specter’s way for the Democratic primary, right?
Maybe. Except the law specifically states that it applies only to jobs or benefits created by Congress. Congress didn’t create the presidential advisory board that Clinton suggested to Sestak.
Ah, but what about the three jobs Messina mentioned to Romanoff at agencies Congress created?
To make that law apply, you would have to show that a job was promised, which Romanoff and Messina deny. You need a quid pro quo to make a prosecution work.
Painter says the solution would be to move all work that is strictly political out of the White House and over to the president’s party headquarters. You wouldn’t and couldn’t strip political considerations from policy decisions, but you might keep White House aides out of the business of deciding who should run for which office.
As for the Sestak and Romanoff matters, it’s hard to see how they could produce indictments. If they did, no one would need a get-out-of-jail-free card to win acquittal.
(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)
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