Seeking to Criminalize the Clinton Foundation—A Footnote

Posted in: Criminal Law

For almost forty years, I have been following Hillary Clinton’s scandals, with claims of her allegedly unethical when not criminal behavior. Consistently, the charges have been all smoke and no fire. First there was the cattle futures trading controversy in Arkansas (1978-1979), then Whitewater (1992), followed by Travelgate (1993), Vince Foster’s death (1993), Filegate (1996), with hiatus and mostly silence about any notorious conduct as U.S. Senator from New York (2001-2009) and Secretary of State (2009-2013). That changed when it was clear she was running for president, and the charges resumed starting with Benghazi (2013-2015), uses of a private e-mail server (2013-2016), and now we have the emerging Clinton Foundation scandal, as her detractors try to criminalize her relationship with her husband’s charity.

Recently, the AP did a hit piece on the Clinton Foundation to get folks interested and it did. The AP claimed: “More than half the people outside the government who met with Hillary Clinton while she was secretary of state gave money—either personally or through companies or groups—to the Clinton Foundation.” This prompted the say-anything-nasty-without-thinking-or-checking presidential candidate Donald Trump to call for a special prosecutor to investigate the Clinton Foundation, while others are now calling for the foundation to be shuttered, which is totally uncalled for. Republicans just do not like the way Democrats, particularly high-profile people like the Clintons, devote so much time and energy to helping the less fortunate. There is also much—maybe intentional—misunderstanding about the Clinton Foundation. See, e.g., “How to Understand the Clinton Foundation.”

This is not the occasion to dig deeply into the bogus charges regarding Hillary’s activities while secretary of state vis-à-vis the Clinton Foundation, or to look at the foundation; rather I want to address commentary I have been reading for months that equates Hillary’s activities with those of former Virginia Governor Robert McDonnell and his wife. Actually this is more of a footnote, which is an odd way to start discussing the Clinton Foundation, but it is timely because the McDonnell case may come back to life shortly.

It will be recalled that McDonnell and his wife were found guilty on all counts of the bribery and extortion cases against them by the federal government, their sentences were stayed during the appeal process, and on June 27, 2016, a unanimous U.S. Supreme Court overturned their convictions, in McDonnell v. U S, sending the case back to the Fourth Circuit.

The Supreme Court felt the federal prosecutors had taken too broad a reading of the underlying law prohibiting “official acts” in exchange for the loans and gifts from a Virginia businessman, Jonnie Williams, who supplied the governor and his wife with $177,000 in benefits to help promote his dietary supplement, hopefully to get Virginia universities to do research on the supplement, and state employees to use it. The high Court found that: “Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of ‘official act.’”

The Court’s ruling surprised many because not only was the evidence strong of doing favors for money but the ruling will make it much more difficult for federal prosecutors to fight corruption. Others found the ruling consistent with the trend of the Roberts Court to rewrite federal campaign finance laws, given rulings like Citizens United, which make it easier for big money to spend freely in federal elections. Now big money will have a minimal risk of criminal exposure when openly paying to play.

What has annoyed me is uninformed commentary like that in the Washington Times account with the headline “If Bob McDonnell deserves jail time, so does Hillary Clinton,” and more recently in the NetRightDaily report, which proclaimed, “If Hillary Clinton were Bob McDonnell she might be on trial now.” Accordingly, I was delighted to see The Washington Post put the lie to these comparative contentions albeit with a rather confusing headline: “Hillary Clinton and her family’s foundation aren’t likely to get the McDonnell Treatment. Here’s why.”

The Post clearly distinguishes Hillary’s situation from Governor and Mrs. McDonnell. “Take, for example, the Associated Press’s recent revelation that, during the first half of Clinton’s tenure as secretary of state, at least 85 of the 154 private citizens she met with, according to her schedule, had contributed to the Clinton Foundation, either personally or through groups. If all those donors got was a meeting, that would not constitute public corruption. And some emails show, in fact, that some donors did not get what they wanted when they sought something more than an audience.”

With the McDonnells, the Post explains, they did more than take meetings, rather they actively lobbied on behalf of their benefactor. There is no evidence or even allegations that Hillary did any lobbying for anyone. The Post notes it is also very different that contributors to the Clinton Foundation were not giving the money to Hillary or her family, but to the charity for its programs, whereas Governor and Mrs. McDonnell received the loans, golfing vacations, a Rolex watch, use of a Ferrari, designer clothing, paying for a daughter’s wedding, and other benefits directly.

Finally, the Post turned to an expert: “Jessica Tillipman, a professor at George Washington University Law School specializing in political corruption, said that even if it could be proved that Clinton met with foundation contributors after donations, the Supreme Court “blessed pay for access” in its ruling on the McDonnell case. “But there seems to be no indication that [those meetings] wouldn’t have happened anyway because of the nature of the people she was meeting with,” she said.

As with most false charges against Hillary, these new charges about the foundation fail. There is no comparison to be made in any way with her activities as secretary of state and those of the governor of Virginia, whose case is yet to be resolved. Last Friday, August 26th, the U.S. Court of Appeals for the Fourth Circuit granted federal prosecutors an extension until September 19th to file their brief in the case against the McDonnells, and whether they will seek to retry him. The delay was requested because the prosecutors needed to further review the matter with the Justice Department. The delay suggests a re-trial, but it is not clear. Stay tuned.

  • gator

    I agree 100% and could not have said it better. Of course, that is why you write stuff that makes sense and I read it. Thanks for your well-reasoned contributions and keep it coming.

  • Jason Wolf

    Well reasoned analysis. Too bad the media (on both sides), has lost all sense of reason and instead is focusing on the most extreme headlines possible, so as to increase clicks and page views.

  • G.N.M.

    All smoke and no fire, you say.

  • Edward Keller

    Doesn’t double jeopardy control with the McDonnell’s?

    • Joe Paulson

      I think the opinion leaves open a narrower application of the law(s) against him. It isn’t like if he was found innocent by a jury and the government tried to retry him.

  • J.E. Tarrant

    The problem with the claims of this article is that the Clintons did, in fact, benefit directly from the foundation. Only 5% of the money given to it actually went to any charitable work, which is less than they spent on office supplies. On the other hand, 39.5% of the money went to salaries, primarily the Clintons and their cronies. Which in part explains why Bill and Hillary are worth over $150 million dollars and they’ve spent almost their whole lives as either elected or appointed officials. Finally, does anyone honestly expect us to believe that the Kingdom of Saudi Arabia, where women aren’t even allowed to drive, gave the foundation 50 million dollars because they want to build schools for little girls in Africa? They’re bribes, plain and simple.

    • Joe Paulson

      Five percent? Huh. Even Carly Fiorina said six percent. Cf.

      Of course, the average charity has significant overhead costs, including salaries. Charities often entail “cronies” aka friends and colleagues the people who run it know and trust. A charity (as compared to speeches, lobbying, corporate jobs etc.) is not really the best way to go if you want to make money after leaving office.

      And, yes, various conservative groups give money to charities for various reasons, including corporations. Charity is a basic plank of Islam though. So, putting aside that I’m sure connections is a factor here (duh — the money is still going to good causes … and a lot more than “5%”), actually I think charity (if only — if you want to be real cynical — for appearances sake) is a significant factor even for the Kingdom of Saudi Arabia. They do give money to charities and things like health etc. even can appeal to conservative religious types (though even Saudi Arabia have women going to school etc.).

  • Nice gloss over careful not to go to deep within the issues. For instance only 10% of foundation funds being used for foundation listed purposes. Well this is a problem for every other foundation group but not Hillary and Bill’s. Classified emails on private server, against federal regulation which is what law is based on, not a problem for a multitude of reasons like she may not have understood what it meant or that she should not do this. At her level if she should not know then I would ask WHO SHOULD. It goes on but why bother you know what it is depending on what “is” means. Like I said good gloss over!!