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A Project of The Annenberg Public Policy Center

Sunday Replay

Did someone in the White House commit a federal misdemeanor by getting involved in the Pennsylvania Democratic primary? A leading Republican House member says yes, but he’s contradicted by a former U.S. attorney general from the Bush administration.

That’s our first subject in this holiday-delayed issue of "Sunday Replay," where we regularly dissect factual claims made on weekend public affairs shows. We also fact-checked a few statements about the oil spill in the Gulf of Mexico.

A Pennsylvania Misdemeanor?

Appearing on "Fox News Sunday," Republican Rep. Darrell Issa of California said flatly that somebody committed a crime when the White House sent President Bill Clinton to ask Rep. Joe Sestak if he would not run against Sen. Arlen Specter in the Pennsylvania Democratic primary. This time Issa did not repeat earlier claims of "bribery." Instead, he pared down his list of possible legal violations to a single section of the federal criminal code.

Rep. Issa: If he had offered a job in order to get out of the race, it would have been a crime, a  crime under a law signed, of all things, by President Clinton during his administration, the last update. If you offer a job or a position, 18 USC 600 clearly says that is a crime.

It’s true that the section mentioned by Issa makes it a crime to promise employment as a "reward for any political activity or for the support of or opposition to any candidate" in a federal election, including a primary race such as the one in which Sestak ultimately defeated Specter.

But there’s more to it than that. Here’s the full language of the statute, with a crucial section highlighted:

18 USC 600

Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both.

The criminal code classifies violation of section 600 (and anything else punishable by a year in prison or less) as a Class A misdemeanor. That’s less serious than a felony such as outright bribery, which can be punished by up to 15 years in prison.

Even so, former Attorney General Michael Mukasey says that section 600 was not violated, unless it can be shown that the White House offered Sestak something more than the unpaid advisory position it admits to discussing.

Appearing on Fox News on Friday, May 28, Mukasey was asked specifically whether Section 600 would be violated by the actions the White House and Sestak describe. His answer:

Former A.G. Mukasey: It has to be a position that was created by Congress, or was somehow partially created by an act of Congress. If not, then it doesn’t violate the statute. … If it’s something that was created only by executive order or by the executive entirely, then it’s not a violation.

And according to the accounts given by White House Counsel Robert Bauer, the White House sent President Clinton to ask Sestak whether he would serve on "a Presidential or other Senior Executive Branch Advisory Board," without pay. Sestak said Clinton asked if he would serve on "a presidential board."

Mukasey said it would "substantially" change things if it turned out that Sestak had been offered some other job, such as secretary of the Navy. "The position of secretary of the Navy is a position that exists by virtue of an act of Congress."

But White House Counsel Bauer says rumors to that effect are "false," adding: "At no time was Congressman Sestak offered, nor did he seek, the position of Secretary of the Navy."

We can’t independently confirm that it was merely an unpaid presidential advisory position that Clinton dangled before Sestak. But by the same token, Rep. Issa has no evidence that it wasn’t.

Blowout Preventer Failures

On NBC’s "Meet the Press,"  as well as on CNN’s "State of the Union," Robert Dudley, British Petroleum’s managing director, wrongly claimed that "blowout preventers," the large safety devices used on oil wells to seal off oil and gas flow during emergency situations, had never failed before:

Dudley, "Meet the Press": These, these blowout preventers which are used on oil and gas wells all around the world and have been used on more than 5,000 deepwater wells in the Gulf of Mexico have not failed before.

Dudley, "State of the Union": The failure of the blowout preventers, which is the ultimate multiple redundant fail-safe system, has not happened like this before.

But an investigation conducted by the Associated Press found that "[c]utoff valves like the one that failed to stop the Gulf of Mexico oil disaster have repeatedly broken down at other wells in the years since federal regulators weakened testing requirements." The AP’s "detailed" review found that the devices either failed, or were a contributing factor, in at least 14 accidents, mostly since 2005, according to accident reports from the U.S. Minerals Management Service.

In addition, a 1999 report from the Minerals Management Service found that blowout preventers had failed on 83 wells in a two-year period in the late 1990s on the Outer Continental Shelf.

"State of the Union" host Candy Crowley followed Dudley’s statement with an incredulous query:

Crowley: But still, shouldn’t you have been able to kind of foresee? And say, wow, we could — what happens if all of the sudden, the blowout preventer doesn’t work?

Dudley replied that there was "layer after layer after layer" of safety built into the devices. Yet, in addition to the failures noted above, there had been additional warnings through the years. A 2003 industry report warned that companies weren’t taking time to find and fix problems that could plague the blowout preventers. And a 2008 report by officials at BP America and Transocean raised questions about whether the BOPs had the strength to punch holes in modern "high strength, high toughness" drillpipes used in deepwater wells. BOPs operate by puncturing the drillpipe and then blocking the flow of oil.

Lowballing Blame Game

On CBS’ “Face the Nation,” officials from BP and the White House disagreed over who should be blamed for initial low estimates for the amount of oil leaking daily from the spill in the Gulf of Mexico. The truth is that the initial estimate came from both the Coast Guard and BP; it was the government that revised that estimate upward.

Bob Dudley, managing director, BP: Well, the– the estimates of the well rates have never been BP estimates. They’ve always been through the Unified Command Center. And the best way to measure those early rates or estimate those early rates were from satellite data–
Host John Dickerson (overlapping): But, Mister Dudley the– the–
Dudley: –not BP data.

Later in the program, Carol Browner, White House environmental adviser, said the initial estimate was from BP:

Carol Browner: The very, very first estimates came from BP. They had the footage of the plume. The government then did satellite imagery and we realized that those estimates were not accurate.

The Unified Command Center, which Dudley says came up with spill estimates, is a joint project of BP, Transocean (the contractor that owned the rig) and various government agencies. Just a few days after the explosion on the oil rig on April 20, both the Coast Guard and BP estimated the leak at about 1,000 barrels a day. The government has continued to revise its estimates, increasing them substantially. BP has said it’s concentrating on stopping the leak, not giving numbers on how much oil is leaking. Here’s a quick timeline of the estimates:

April 24Coast Guard officials say about 1,000 barrels a day are leaking from the rig. BP also gives that estimate.

April 28 – A scientist from the National Oceanic and Atmospheric Administration estimates the rate at 5,000 barrels a day, a projection made from aerial views of the spill.

May 13 – A day after underwater video of the leak was released, scientists and environmental groups questioned the estimates of the spill. An oceanographer tells the New York Times that the rate could “easily be four or five times” the government estimate. A BP senior vice president says, “There’s just no way to measure it."

May 20 — NPR interviews a Purdue University professor who estimates the leak at about 100,000 barrels a day.

May 27 – The newly formed Flow Rate Technical Group — made up of government and independent scientists, and university representatives — releases a new estimate of 12,000 to 19,000 barrels a day. Those numbers come from several estimates, the full range of which was 11,000 barrels to 25,000 barrels.

Also on the program, Democratic Rep. Ed Markey of Massachusetts said BP initially used the lowest internal estimates it had, rather than citing a range, or mentioning a higher number:

Markey: I asked BP to provide me with the documents that related to what they felt in the first week the size of this leak actually was. And I have an internal confidential BP document which says that they believed in the first week that it was 1,000 to 14,000 barrels per day. But what they said publicly was that it was 1,000 barrels per day.

That memo, dated April 27, gives a low estimate of 1,063 barrels a day, a "best guess" estimate of 5,758 barrels a day, and a high number of 14,266 barrels a day. The latter number is within the range of the latest government estimate, released May 27.