John Dean: Why Pay-for-Play Charges Against Clinton Are Bogus

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Bill Clinton at the Clinton Global Initiative's 2015 Winter Meeting in New York on February 10, 2015. John Dean writes that Republicans 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. Brendan McDermid/reuters

This article first appeared on the Verdict site.

For almost 40 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 email 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. United States, 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.

On Friday August 26, the U.S. Court of Appeals for the Fourth Circuit granted federal prosecutors an extension until September 19 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.

John Dean, a Justia columnist, was White House counsel to President Richard Nixon.