The Ethically Obtuse Bauer Memo

According to both the Washington Post and the New York Times, the memo from White House Counsel Robert F. Bauer shows that the Sestak/Clinton/White House scandal is nothing to waste time over. Or, as the Times puts it today’s Ethics Dunce-worthy editorial,* “nothing terribly unethical” happened.

I see. Our standards for the ethical conduct of our President and his staff isn’t that they should behave ethically, but that they shouldn’t be terribly unethical.  Certainly that is the attitude conveyed by the Bauer memo, which is unconvincing legally and appears to be written by someone who never heard of the concept “ethical.”

“We have concluded that allegations of improper conduct rest on factual errors and lack a basis in the law,” the memo begins.

In other words, if its isn’t illegal, it isn’t improper. This is the wild cry of the Bad Man, the Unethical politician. Many, many things that may be legal are improper, because being unethical is improper.

Uncompensated Advisory Board Options. We found that, as the Congressman has publicly and accurately stated, options for Executive Branch service were raised with him. Efforts were made in June and July of 2009 to determine whether Congressman Sestak would be interested in service on a Presidential or other Senior Executive Branch Advisory Board, which would avoid a divisive Senate primary, allow him to retain his seat in the House, and provide him with an opportunity for additional service to the public in a high-level advisory capacity for which he was highly qualified. The advisory positions discussed with Congressman Sestak, while important to the work of the Administration, would have been uncompensated.

None of which addresses the little problem that the law this violates doesn’t require compensation, but merely a “benefit,” which the offered position certainly is.

White House staff did not discuss these options with Congressman Sestak. The White House Chief of Staff enlisted the support of former President Clinton who agreed to raise with Congressman Sestak options of service on a Presidential or other Senior Executive Branch Advisory Board. Congressman Sestak declined the suggested alternatives, remaining committed to his Senate candidacy.

It doesn’t matter ethically or legally, as Bauer well knows, whether the White House staff made the offer itself or through an agent or envoy. Nor does it matter legally or ethically that the effort to bribe Sestak into letting Sen. Specter avoid having to face his constituency at the polls before being re-nominated failed.

Relationship to Senate Campaign. It has been suggested that discussions of alternatives to the Senate campaign were improperly raised with the Congressman. There was no such impropriety. The Democratic Party leadership had a legitimate interest in averting a divisive primary fight and a similarly legitimate concern about the Congressman vacating his seat in the House. By virtue of his career in public service, including distinguished military service, Congressman Sestak was viewed to be highly qualified to hold a range of advisory positions in which he could, while holding his House seat, have additional responsibilities of considerable potential interest to him and value to the Executive Branch.

This is responding to a charge that hasn’t been made. Nobody has accused the White House of offering a position to Sestak that he wasn’t qualified for. Nor is anyone saying that the Democratic Party didn’t have a legitimate interest in wanting Specter to win. It is how the White House pursued that interest—by trying to buy off a potential rival and limiting the public’s democratic options—that is at issue.

There have been numerous, reported instances in the past when prior Administrations — both Democratic and Republican, and motivated by the same goals — discussed alternative paths to service for qualified individuals also considering campaigns for public office.

Everybody does it. If everyone uses bribery, it’s OK. Why should we be different than everybody else, except for the fact that we, er, got elected by promising to be different from everybody else?

Such discussions are fully consistent with the relevant law and ethical requirements.

No. They aren’t.


* I can’t let this pass. In the Times editorial, one of the reasons cited for why the scandal is fluff and nonsense is that Sestak couldn’t have accepted the position offered by Clinton anyway: the law prohibited a sitting House member from serving. How is this a defense? If the White House knew it (and the Times sneers that the truth was just a Goggle away), then it was trying to trick Sestak into not running for an appointment that he would never get. That’s ethical? Or, in the alternative, if they were making what they thought was an illegal offer, but wasn’t because the benefit they thought they were offering didn’t exist, doesn’t that juts mean they were unethical and careless and stupid?

3 thoughts on “The Ethically Obtuse Bauer Memo

  1. Are these people aware of the fact that, with every utterance, they’re digging the hole ever deeper? In Clinton’s day, the press was still predominant enough (and subservient enough) to keep the lid on these sorts of illegalities. But this is not 1995. And an election is coming up. Is this fantasizing, stupidity or sheer arrogance on the part of this administration? That Obama’s people share the lawless proclivities of Clinton’s (a number of them being both!) is disturbing enough.

  2. Didn’t Obama get elected on the promise of transparency, integrity and ethics in government, by slamming the previous Republican administrations, and by pledging a new honesty in government? Now we learn that we have just more of the same, more Clintonian parsing of words, and more laborious definitions of what “is” is.

    All of his other defects — in action and philosophy — aside, this is perhaps among the most depressing: that he will use any means, any person, and any verbiage to advance his own ends. Country and Constitution be damned: Obama- land is paramount.

    And I am NOT a tea-party member. Just a believer in the basic precepts on which our country was founded, and when there’s a current post on any past president (of any ilk) I will weigh in the same way.

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