Litigation

Painter on Sestak's accusations

By Ted Frank

I would find Richard Painter's analysis of the scandal surrounding Joe Sestak's accusations more compelling if it were the official position of the White House or if it made any attempt to analyze precedents relating to the statute at issue. But we don't see the White House saying "We offered Joe Sestak a job, and so what if we did?" Rather, we see the White House doing everything in its power to avoid addressing the issue and offering only the promise of a heavily lawyered response. It's hard not to conclude that the White House is taking Senator Specter's claims that the conduct is criminal very seriously. (Another alternative is that the White House is trying to figure out a way not to call Sestak a liar, which would also be consistent with the apparent belief of the White House that the truth is embarrassing.)

Now, Painter is likely correct in a normative sense: the federal criminal laws shouldn't reach such conduct. And one would certainly hope that this could be a teaching moment about the problem of overcriminalization in federal law. But my hopes in that regard are rather dim, since Republicans are likely to see the short-term political advantage of winning a few news cycles as more important than the long-term policy implications, and it's unlikely the Obama administration is willing to concede anything because of it.

Full post as published by Point of Law on May 28, 2010 (boomark / email).