Totally agree-- no Republicans at State, Justice, Defense, or Treasury, period. Hagel would be great at the VA, and while I wish there was another, noncontroversial department at which a Republican could be trusted, I can't think of any.

I think you are reading the statute incorrectly. It says you can't promise an appointment for the purpose of procuring that person's support. Which would imply that you can promise an appointment for some other reason. So if the person has already endorsed Obama it is hard to see how it would be a problem.

Except possibly for Hagel.

Thank you. That needed to be said. Scratch that--it needs to be shouted from the rooftops. Let's have an actual Democratic foreign policy for four years and see where we stand in the world.

Does the Democratic message become that their choice in Republican defense secretaries is better than the Republican Party's choice in Republican defense secretaries?

That's clearly not the message we really want to be sending, but it does have a lot of truth to it based on the last 16 years.

While, as a Republican, I'd love to see Hagel just make it official and switch parties, I tend to agree it doesn't serve Obama to appoint, or hint that he will appoint, a Republican to anything. If it's a liberal Republican, that's not going to count as bi-partisanship with anybody right-of-center, and many on the left would still consider it a betrayal.

It's a bad idea, politically, for Obama, and that's why I'm pretty sure it ain't going to happen. Pundit pleading aside.

"for the purpose of procuring support in his candidacy..."

Basically, once you're the presumptive nominee you can announce your entire cabinet without fear of running afoul of the law as long as they're members of your own party. And you can nominate anyone else as long as you make it clear that there's no quid pro quo involved.

You can do what Bush did in 2000 and leak who you'd like to appoint and appear with them in public a lot, but you can't announce your government in September.

Actually, in 2000 Bush repeatedly announced, with no equivocation, that he would make Colin Powell his Secretary of State, if elected. There must be more nuance to this law that Ezra claims. Either that or IOKIYAR.

But whoever it is, get it out of your system once and then shut-the-bleep-up. This is war, and the command decision has been made, period.

Here's the deal with the statute EK references:

1) The statute is very broad as written -- if you promise a position to someone for the purpose of procuring support from anyone, you are arguably violating the statute. (The statute does not say you have to be seeking to obtain the support of the person to whom the job is promised.)

2) As applied to a presidential candidate indicating who he/she would put in his cabinet, it's pretty clearly an unconstitutional bar on political speech.

3) That said, to test the constitutionality of the statute, a candidate would have to violate it, risk a grand jury investigation of his/her campaign, indictment and arrest, and then make the argument before a judge who very well may hate that candidate. The judge can then decide the issue whenever he/she likes (e.g., "I'll reconsider this issue after trial.").

In short, the statute really shouldn't apply, but it's impossible as a practical matter for a candidate to take that chance.

(The statute does not say you have to be seeking to obtain the support of the person to whom the job is promised.)

It doesn't say that explicitly, but the implication seems unavoidable; otherwise what is the language "for the purpose of procuring support in his candidacy" even doing there? Who does it refer to? Public support? That would imply that it's okay to promise an appointment, so long as you don't think it would help you with the electorate.

The purpose of statutes like this seems to be to prohibit any kind of political quid-pro-quo, not to prohibit candidates from telling voters what their administration would look like. For instance, if Obama would have cut a deal with Edwards during the primaries, promising to appoint him as AG if he dropped out of the race. Not if Obama says right now that he would pick Biden as his Sec. of State or something.

It's possible a court would read it differently, I guess. As far as I can see there is very little case law.

This statute was discussed long ago at volokh.com. Like the other commentors, I think it would be absurd to interpret it to say that you can't pre-announce your cabinet. It means you can't buy someone's vote by promising them a job.

@jeebus: My reading is that the statute clearly makes it illegal for a candidate to seek to procure Person A's support by promising Person B a job. In theory, that's not problematic: I don't see why a candidate for federal office should be able to buy Mr. Doe's vote by promising to make Mrs. Doe postmaster.

Promising somebody's spouse a job is more like offering them a direct favor. It's a radically different situation than promising Joe Biden a job for the purposes of procuring 60 million votes from the electorate at large.

There's just no way in hell this statute was written to prohibit presidential candidates from announcing a cabinet pre-election. An overly literal reading of the statute might render that result, but it's almost impossible to imagine a court actually ruling that Barack Obama would be criminally liable if he said who his Secretary of State would be.

In other words, Ezra needs to retract the post; to simply assert that "it's actually illegal to announce your cabinet ahead of time" is very misleading.

Whis isn't an argument against early cabinets, it's an argue for changing the law that prevents them. We need a law that prevents bribing people with the promise of office, but that permits the electorate to make an informed voting decision on the government they are choosing. This would also help decentralize and deemphasize the role of the imperial presidency, by making the election about the whole of the executive branch rather than just one man-- from whom all things must flow.

You're right about the unsuitability of Hagel, of course.

Hagel fits because he actually served on the Veterans Affairs Committee like Webb and Obama. Either one understands the full costs of war. As far as we know Senator McCain has not served a day in the committee and has repeatedly claimed not to understand the economy. We voted for Junior because of Powell and Bush Senior. That was an one-time mistake. We would like to see Webb or Hagel as Secretary of Defense in Senator Obama's Administration. Powell will be a great advisor for Senator Obama.