If there ever was a time where Justice Department protocol mandated that investigators steer clear of the election season for fear of having an undue influence on the outcome, that time appears to be over, thanks to the Federal Bureau of Investigation, whose inquests into electoral figures are now leaking out like water through a sieve.
Over the past 24 hours, we’ve seen an FBI Twitter account dump documents related to Bill Clinton’s pardon of commodities trader Marc Rich. The Hill reports today that the FBI has freshly disclosed that they are investigating “an alleged illegal donation scheme involving a wealthy Saudi family that supports Democratic Florida Senate candidate Patrick Murphy.” And a team of New York Times journalists report this week that the FBI “faced a hard decision in two investigations this past summer that had the potential to rock the presidential election” ― one involving former Trump campaign chairman Paul Manafort and his ties to “secretive business dealings in Ukraine, the other “focused on Hillary Clinton’s relationships with donors” to the Clinton Foundation.
The Times story essentially details internal tensions at the FBI, which is faced with the need to pursue these investigations while navigating around the unwritten protocols about not interfering with the election. But here’s an interesting tidbit that emerges in the piece, 16 paragraphs down:
In August, around the same time the decision was made to keep the Manafort investigation at a low simmer, the F.B.I. grappled with whether to issue subpoenas in the Clinton Foundation case, which, like the Manafort matter, was in its preliminary stages. The investigation, based in New York, had not developed much evidence and was based mostly on information that had surfaced in news stories and the book “Clinton Cash,” according to several law enforcement officials briefed on the case.
The book asserted that foreign entities gave money to former President Bill Clinton and the Clinton Foundation, and in return received favors from the State Department when Mrs. Clinton was secretary of state. Mrs. Clinton has adamantly denied those claims.
Clinton Cash, penned by Breitbart News Senior Editor-at-Large Peter Schweizer, has been a controversial tome since it came into existence. Clinton defenders frequently point out that the supposedly densely researched book underwent numerous post-publication corrections for inaccuracies. Fact checkers have, at times, taken a dim view of the book as well. As The Guardian’s Ed Pilkington notes, the book is replete with instances in which Schweizer admits that he has no “smoking gun” to back up many of his claims, alongside a host of “cringe inducing” errors.
But the Clinton Foundation, it is fair to say, has been equally controversial. While the foundation has earned a four-star rating from Charity Navigator ― a plaudit that adds credence to the notion that it is a gold-standard charitable enterprise ― it’s not controversial to point out that the organization is, nevertheless, a massive clearinghouse for favor-trading and corporate brandwashing. Indeed, as The Associated Press pointed out in November, that four-star rating may itself be compromised, owing to the fact that Charity Navigator has been a Clinton Foundation partner.
None of this has been lost on Pilkington, who, alongside his evaluation of Clinton Cash, offered up this judgment on the Clinton Foundation:
Certainly, pundits were warning about the problem of the large sums of money flowing into the Clinton Foundation’s coffers even before Hillary Clinton took up her position as Obama’s global emissary-in-chief. A month before she became secretary of state, the Washington Post warned in an editorial that her husband’s fundraising activities were problematic. “Even if Ms. Clinton is not influenced by gifts to her husband’s charity, the appearance of conflict is unavoidable.”
Since the foundation was formed in 2001, some $2bn has been donated, mainly in big lump sums. Fully a third of the donors giving more than $1m, and more than a half of those handing over more than $5m, have been foreign governments, corporations or tycoons. (The foundation stresses that such largesse has been put to very good use – fighting obesity around the globe, combating climate change, helping millions of people with HIV/Aids obtain antiretroviral drugs at affordable prices.)
So the Clinton Foundation is eminently scrutinizable. Whether the FBI is the right organization to provide that scrutiny, however, is an open question. And it’s likely that following up on leads generated by Clinton Cash is rife with pitfalls, potentially explaining why the investigation has not “developed much evidence.”
But if the FBI is using Clinton Cash as the basis for inquiry, it should be noted that plenty of journalists have tripped through the same wires. The New York Times, in fact, reported deeply on how the Clinton Foundation and the Clinton State Department were at the nexus of a deal that created Uranium One and greatly enhanced Russian control of uranium production capacity. According to that Times report, “As the Russians gradually assumed control of Uranium One in three separate transactions from 2009 to 2013, Canadian records show, a flow of cash made its way to the Clinton Foundation.”
That Clinton’s State Department had a say in whether the Uranium One deal would go through is a fact that’s inconvenient to the Clintons. That the State Department was just one of many government agencies who had veto power over the deal is a fact that’s inconvenient to their detractors. But the salient point is that the New York Times undertook this investigation based on Schweizer’s book, just as the FBI is reportedly doing. In fact, the Times ― along with Fox News and the Washington Post ― had an informal investigative relationship with Schweizer, in which they would get early access to his research in order to pursue Clinton Cash-related scoops. (Today’s New York Times piece on the FBI fails to disclose that the paper had been party to this arrangement.)
So it’s not entirely insane that the FBI might use Schweizer’s dark materials as a jumping-off point for an investigation. But the more important question is: having jumped, where does the FBI intend to land?
Once upon a time, any kind of arrangement that created even the appearance of political impropriety or corruption faced laws with real teeth, as centuries of case law held that this was sufficient on its own to constitute a threat to good government. But in recent years, those laws have been allowed to steadily degrade, culminating in a dire moment for democracy this summer when the Supreme Court overturned the conviction of former Virginia Gov. Bob McDonnell, who’d been found guilty of corruption after engaging in a textbook play-to-play scheme with a political benefactor.
At that time, numerous campaign finance rulings had left courts with little room to move on corruption cases ― in fact, explicit quid pro quo arrangements were, prior to the McDonnell case, held to be the only viable corruption case that could be brought. In the McDonnell case, the Supreme Court was presented with the argument that such quid pro quo arrangements were essential to governing. (Chief Justice John Roberts seemed especially taken with an amicus brief from “former White House counsels to Presidents Barack Obama, George W. Bush, Bill Clinton, George H.W. Bush, and Ronald Reagan” that argued that upholding the McDonnell conviction would “cripple the ability of elected officials to fulfill their role in representative democracy.”)
I’m not sure if the FBI has lately tested the way the winds are blowing in regard to corruption cases, but if they have, they’ll have probably surmised that the current legal environment portends against successfully making a case in court. Perhaps the last play left, then, is to throw what shade they can during an election season.
One of the more interesting things about the Clinton Foundation is that it it subject to quaint little laws that force it to be more transparent about its dealings than, say, the dark money organizations that have sprung up alongside our judicial system’s general retreat from the corruption arena.
We should probably be glad that we know as much as we do about the Clinton Foundation, because it’s not a particularly bright future to which to look forward. Right now, interest in fighting corruption depends on hyper-partisan actors who’ll happily overlook the crimes of those to whom they have allied themselves and law enforcement agencies that can’t say with any certainty that a court might be interested in taking any case they make. And that truly is a pity.
Jason Linkins edits “Eat The Press” for The Huffington Post and co-hosts the HuffPost Politics podcast “So, That Happened.” Subscribe here, and listen to the latest episode below.