A Different Take On How Gingrich’s Secretary of State Job Offer To John Bolton Violates Federal Election Law
The news yesterday from the Republican Jewish Coalition’s D.C. forum centered on the GOP’s presidential front runner, Newt Gingrich. Aside from all the candidates’ craven posturing and promising things they know they could not or would not deliver, one of Gingo’s ex cathedra pronouncements garnered an explosively positive response: Gingo offered John Bolton, the infamous and nearly homicidal neoconservative, a cabinet position as Secretary of State. Soon after Gingo’s announcement, some accused him of a federal election law crime.
Well, it turns out there were two crimes perpetrated with Gingo’s job offer. First, the obvious one: knowingly and deliberately considering John Bolton for any position whatever in a Gingrich administration. If not a federal crime, it ought to be.
Second, some argue that Gingo violated one of the federal anti-patronage laws that applies to candidates for federal office, 18 USC § 599 (set out below). The idea is that his offer to Bolton was an attempt to garner support from the RJC membership. That’s true, but that theory isn’t on the right path to § 599.
It is quite arguable, however, that Gingo did violate § 599 in another, less obvious, way, like Election Law Blog’s Rick Hasen implies. Mr. Hasen drops the subject, however, without, as yet, a conclusion. It’s not easy to deal with GingoLingo and its consequences.
As always, it’s the indirect path that must be taken to get at the truth of anything Gingrich. And I believe I may have found that hidden path where Gingo and § 599 share a tent . . .
at Republican Jewish Coalition (RJC) candidate forum
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| Hey Bolton! Over here! |
At first blush, it seems that one can hardly imagine an easier first year law school criminal law case study. Here, with Gingo at the RJC, is a fact situation that mirrors the very criminal conduct that the statute seeks to prevent. His statement above appears to meet all relevant criteria in the federal penal provision set out below:
U.S. Code, Title 18, Part I Ch. 29
§ 599. Promise of appointment by candidate. Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both.
Let’s test it against Gingo’s comments to the RJC yesterday afternoon:
- Gingo “directly . . . promise[d] or pledge[d]”
- “the appointment . . .to any public . . . position . . . or employment,”
- “for the purpose of procuring support in his candidacy . . .”
From my CRS experiences, though, § 599 does not apply to Gingo’s comments before the RJC itself in the way most people believe it applies. The idea in play is that Gingo’s offer to Bolton was designed to garner support among RJC members. Indeed, it was, but there’s more to it, and that is where the law becomes a bit less – and more – than the “plain words” seem to mean. Section 599 applies to Gingo in a comparatively indirect way, to another individual, John Bolton, rather than to the RJC membership. In this world “indirect” means “direct.”
Historically, the law regarding the “promise of appointment by candidate,” § 599, arises out of laws enacted, beginning in the late 19th century, to insulate federal employees from being “politicized” in the service of, for example, a candidate for office in return for a promise of a job, promotion, etc. This was originally intended to address the “spoils system.” Election laws prohibiting these kinds of actions address what are known as “patronage crimes.” Violators are, in effect, using – more correctly, promising to use – federal money to gain support for election by offering federal jobs.
Among these election laws, § 599 is a provision that applies exclusively to candidates for federal office. The Department of Justice (DOJ), in its document, Federal Prosecution of Election Offenses, states that § 599
“is one of the few federal criminal laws specifically addressing campaign-related activity by candidates. It is a class statute that applies only to misconduct by federal candidates.” [at page 119]
It prohibits candidates from offering employment to anyone in return for their campaign support, it is not merely to prevent those kind of job offers to federal employees alone. So, if Gingo, for example, offered Bolton the job as SecState in private to secure his endorsement, that would in all likelihood be a violation of § 599.
“Section 599 has potential application when one candidate attempts to secure an opponent’s withdrawal, or to elicit the opponent’s endorsement, by offering the opponent a public or private job. It also applies to offers of jobs by federal candidates to others to secure endorsements.” [Emphasis added] [DOJ document, page 119]
This DOJ hypothetical far more closely matches the actual facts of Gingo’s RJC pronouncement. It’s irrelevant that he promised the RJC crowd itself that he would appoint Bolton as SecState.
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| I defend on the basis that no one ought to believe anything I say! |
Why? Let’s think about whose support Gingo was at least arguably seeking with his job offer. It may well have been John Bolton, a man thought important in GOP neoconservative circles who has not yet announced a presidential preference. And that’s where the Gingo/§ 599 connection exists.
Quite easily, Gingo can be seen to have been offering Bolton a job to get Bolton’s endorsement. He’s not truly after the small number of conservative Jewish votes available. Of course, the calculating mind of Newt Gingrich realizes that no one could possibly see an advantage to a Bolton endorsement in the general election. Within the GOP primaries, the game in play now, Bolton has some pizazz. Iowa and other crazily conservative states loom on the primary horizon. By and large, those folks like John Bolton. Gingo knows Bolton’s imprimatur would help him among those voters, if only a smidgen. A smidgen may be the difference in New Hampshire. If, however, Gingo’s the nominee for the general election, he also knows he’ll have to quickly ditch John Bolton as too much a reminder of Dubya to be fit for regular folks’ memories, and votes.
In any event, Gingo’s in a bit of a tough spot legally now should DOJ decide to push it. Surely, some nonprofit group will, I hope, put pressure on them to do so. The case is not all clear lines and sharp corners, but it’s quite arguable that Gingo violated § 599.
Gingo’s never speechless (Why, God?), and he’s really really mendacious, confusingly so, deliberately. That sort of behavior is in his wheelhouse. So an indictment has hurdles to clear. Gingo’s intent, for example. In legal terms, did he actually make a job offer (“promise or pledge”)? And does the provision apply to an offer to John Bolton, a private citizen? I discussed it above, and I answer “yes” to each, but an assistant attorney general answers to many and much of his or her job is political decision making, as we’ll see below.
Other questions: Did Gingo truly intend to follow through on his promise to the RJC/Bolton? Was he willfully making a legitimate “offer” to Bolton, and for what in exchange? Does he really care about gaining Bolton’s nod? Or was his “pledge” simply old-fashioned electioneering (lying) in front of a crowd known to support Bolton’s position to unapologetically promote the concerns of Jewish Americans for Israel’s security interests? Oy, there’s a lot of there there. . .
Section 599, if not definitively, addresses these issues in two ways:
1. In its language: “Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy . . .”
“[Section 599] also applies to offers of jobs by federal candidates to others to secure endorsements.”
Gingrich
- (1) “indirectly,” but deliberately, offered one of the higher ranking federal jobs to John Bolton at the RJC meeting, even though Bolton was absent from the meeting, and
- (2) Bolton has not yet made an endorsement for President, and thereby he meets the DOJ’s own applicability standard (“to others to secure endorsements”), however hypothetical their example has been thus far.
- (3) It is not at all inconceivable, although it would be a tough point to prove, that Gingo intended the offer to be understood by Bolton as a quid pro quo for an endorsement. When Bolton heard that, what did he think? When Gingo chose that particular person at that particular moment, what was his motive? These questions need to be asked. Knowing Gingo as we do, does he offer anything for nothing?
“Look, I was lying to them, I have no intention of nominating Bolton for Secretary of State. As you know, I’m an audacious liar. Olympian. The RJC certainly knew I was lying in nearly everything I said. Look, they were on more than adequate notice.”
Case closed. In that instance, the “criminal mind” is missing, and, moreover, recall that the law does not apply to the RJC forum qua forum. Look at it this way, if he’d publicly offered the entire RJC membership jobs in his (nightmarishly possible) administration, well, in § 599 terms, that would be different.
Also, he’d assert that “technically,” or “in a legal sense,” he did not offer Bolton a “job.” He might say,
“Look, as President I can only submit Bolton’s name to the Senate. They decide whether he actually gets the SecState job. If you’d passed high school freshman Civics as I did in two tries, you’d know that.”
This concept, though, would complicate matters greatly. My guess, on that technical point alone, DOJ would be unwilling to charge him. And, legally, it’s a good point, but not unassailable if DOJ chose to fight him.
Other defenses remain as well: First Amendment objections, for example. Also, he could qualify his words by pointing to his phrase, “[i]f he will accept it” as a qualification of his job “offer.” Etc., etc. The mind of Gingo.
Ultimately, however, in re Gingo is as much a political decision for the DOJ and the administration as it is a legal decision. Can you imagine the furor on the right wing resulting from an Obama Department of Justice investigation of a potential GOP political opponent this late in the election cycle? It’s especially dicey given that as presidential candidate, Obama’s flirtation with Colin Powell after Powell endorsed him came into § 599 territory:
“He will have a role as one of my advisers,” Barack Obama said on NBC’s ‘Today’ in an interview aired Monday, a day after Powell, a four-star general and President Bush’s former secretary of state, endorsed him.
“Whether he wants to take a formal role, whether that’s a good fit for him, is something we’d have to discuss,” Obama said.
So, this whole affair will almost surely be forgotten by all within a week, or less. I hope it sticks around a bit longer, though, if only as ammunition for other GOP snipers to use against him. It’s oddly fun to watch the maestro of mendacity direct his internal symphony of balderdash.
And tempting fate, don’t we really want Gingo as the GOP nominee rather than as Inmate #213-3288?
