The silliness just doesn't go away.
Friday I explained why 18 USC Section 600 did not make it a crime if the administration offered employment to Joe Sestak in exchange for dropping out of the primary for the Democratic candidate for Senate in Pennsylvania.
Saturday, Peter Baker of the New York Times came up with a new criminal statute, 18 USC Section 595, as the reason an administration job offer to Joe Sestak may be illegal. It isn't. Today I'll explain why.
The full text of 18 USC Section 595 can be found here. In short, the section makes it a misdemeanor for "a person employed in any administrative position" by the United States, or a state or political subdivision of a state in connection with an activity financed in whole or in part by the federal government, to use his/her official authority for the purpose of interfering with or affecting the nomination or election of any candidate for the office of President of the United States, Vice President, Member of the Senate or Member of the House of Represetatives. The statute was originally enacted as part of a comprehensive statutory scheme intended to prohibit federal emplyees from participating in partisan political campaigns. It has been part of the US code since 1948. I could find no published case enforcing the statute.
There are three elements to an offense under 18 USC Section 595: (1) There must be "a person employed in any administrative position"; (2) the person employed must use his/her official authority; and (3) it must be for the purpose of interfering with or affecting the nomination of any candidate for the designated elective offices. Whether or not the offer of a job in exchange for dropping out of a primary constitutes "using official authority...for the purpose of affecting the nomination of a senator," it is not at all clear that the President is "a person employed in any administrative position" by the United States? The constitutional duties of the Presidency doesn't fit within the plain language of the statute, and it doesn't make sense. Can a President do anything political that wouldn't constitute "using official authority?" How could a president clear himself of the intent to help a candidate (including the president himself) whenever he takes popular official action? Isn't being President inherently political?
The simple answer is that the President is not "a person employed in any administrative position" within the meaning of 18 USC Section 595. 18 USC 595 does not define "a person employed in any administrative position," but it has a parallel provision in Title 5 USC, Subchapter III (Politcal Activites) governing employee conduct. In part, 5 USC Section 7323 prohibits an employee from "us[ing] his official authority or influence for the purpose of interfering with or affecting the result of an election." 5 USC Section 7322 defines "employee" as "any individual, other than the President and the Vice President, employed or holding office in an Executive agency other than the Government Accountability Office; or a position within the competitive service which is not in an Executive agency." There is no definitional section section to Title 18, Chapter 29 (Elections and Political Activities), but Sections 602, 603, and 610 all refer back to the definition of employee in 5 USC 7322. When Congress intended the President and Vice President to be bound by section 607, it specifically said so. Both the provisions of Title 5 governing employee conduct and the criminal offences in Chapter 29 of Title 18 are commonly referred to as the "Hatch Act", and provisions in both Titles have been amended in the same legislation numerous times in the past. Under the circumstances, I think it indisputable that Courts would read the ambiguous language of Chapter 29 of Title 18 in the light of the definitions in Title 5, Subchapter III.
I have been very disappointed in the quality of the journalism about the Sestak non-scandal. This isn't rocket science. It shouldn't be too much to ask highly paid professional political commentators like Peter Baker to closely read statutes and look to see how they have been used in the past before repeating cheap partisan accusations derived solely from inaccurate paraphrasing of isolated statutes. I am even more disappointed at the failure of other journalists to catch and correct the shallow analysis of their peers. The so-called free market of ideas fails when journalists won't challenge each others' flimsy claims. As Brad DeLong would say: "Why can't we have a better press?"
Finally, I have a follow-up on last Friday's post about 18 USC Section 600, the offer of employment as consideration for "political activity." In my diary I argued that the statute only covers an offer of employment in exchange for campaign contributions or the employment of federally paid employees in political campaigns. A comment in Huffingtoon post argued that US v. Pintar, 639 F.ed 1270 (8 cir. 1980) showed that the offer of a job to Sestak was a crime. On the contrary; that case does not help the scandal-mongers. Rather, Pintar said that evidence that a secretary was hired by a state agency using federal funds specifically to do political campaign work was sufficient to prove a violation of 18 USC section 600. And the court granted the defendant a new trial anyway.
Thanks for letting me vent.