The Clintons versus the Hobbs Act

AT was right on top of the Clinton money scandal, explaining recently that author Peter Schweizer is properly citing the Gov. McDonnell precedent for gift-taking criminality even where no actual quid pro quo is proven.  Not that anyone in the current administration is looking very hard.

If anything, the McDonnell case is far less egregious than what the Clintons have been doing.  A closer look at the laws reveal why.

McDonnell was indicted on 14 separate counts, the majority dealing with violations of the Hobbs Act, 18 U.S.C. 1951, "obtaining property under color of official right" – that is, essentially, accepting "political tribute" from people with an interest in government decisions.  McDonnell argued that the gifts and favorable loans totaling over $165,000 he and his wife received came from only one person, an old family friend and supporter, and should be considered personal, not connected to any official post he held.  The jury did not believe him, and he was sentenced to serve two years in federal prison.

In the case of the Clintons, we are dealing with over $100 million just for speeches between 2001 and 2013 paid to Bill Clinton, when his wife was either U.S. senator or secretary of state, paid by people all over the world with no tangible connection to the Clintons other than that they had business of some sort before the government.  (Clinton often received $500,000 per appearance, which is better than even anyone working in Las Vegas and not fighting Floyd Mayweather.)  It would be easy for any prosecutor to go back and see what, if any, speaking fees were standard at the time for the people and organizations that bought these speeches.  If Clinton's were way above normal, as they are already proving to be, the elements of a violation of the Hobbs Act appear to be in place.

Under the DOJ's own guidelines, for money to be extorted, just a basic fear of "economic harm" is sufficient.  The public official does not even have to "take steps" to procure a particular payment; "the coercive element is provided by the public office itself" (Evans v. United States, 504 U.S. 255 [1992]).  Payments to third parties for the benefit of the public official also count under the Hobbs Act, so all the loot collected by the Clinton Foundation is in jeopardy as well.  Likewise, for the years when Hillary was secretary of state, she and her husband were under the executive branch gift regulations, 5 CFR Part 2635.  The massive speaking fees Bill obtained were so far out of the ordinary that he might expect as normal compensation as to constitute illegal gifts under the regulations.  It doesn't matter if there is a provable quid pro quo; executive branch officials and their spouses simply cannot take most gifts, even ones of small value.

Of course, I am sure the Obama Justice Department has a full schedule of race-baiting taking up all its time the next year and a half, so nothing official will happen to the Clintons for now.  But if we do get a Republican president, the statute of limitations is five years, which should suffice to allow a prosecution.  Hobbs Act violations carry up to twenty years in prison.  Gift regulation violations also carry substantial civil and criminal penalties.

Something similar nearly happened to the Clintons in 2001, when Denise Rich gave the Clinton Library $450,000, permitting Eric Holder to grease the way for Bill to pardon her husband, fugitive Marc Rich.  Sadly, the supposedly tough prosecutor George W. had investigate was Holder's good friend, James Comey, the guy who nailed Martha Stewart on a technicality and backed Peter Fitzgerald in the quixotic prosecution of Scooter Libby.  Comey did Holder and the Clintons a huge favor by sweeping the whole thing under the rug.  He was never so helpful for President Bush, becoming a thorn in the administration on everything from wiretapping laws to routine appointments of U.S. attorneys.  After leaving government for a lucrative defense contracting job, the Democrats' favorite Republican was on Obama's short list for the Supreme Court before becoming his FBI director.

Let's hope that new Republican president makes investigation of the Clintons the second thing he does in the White House.  The first thing would be to replace James Comey.

Frank Friday is an attorney in Louisville, KY.

AT was right on top of the Clinton money scandal, explaining recently that author Peter Schweizer is properly citing the Gov. McDonnell precedent for gift-taking criminality even where no actual quid pro quo is proven.  Not that anyone in the current administration is looking very hard.

If anything, the McDonnell case is far less egregious than what the Clintons have been doing.  A closer look at the laws reveal why.

McDonnell was indicted on 14 separate counts, the majority dealing with violations of the Hobbs Act, 18 U.S.C. 1951, "obtaining property under color of official right" – that is, essentially, accepting "political tribute" from people with an interest in government decisions.  McDonnell argued that the gifts and favorable loans totaling over $165,000 he and his wife received came from only one person, an old family friend and supporter, and should be considered personal, not connected to any official post he held.  The jury did not believe him, and he was sentenced to serve two years in federal prison.

In the case of the Clintons, we are dealing with over $100 million just for speeches between 2001 and 2013 paid to Bill Clinton, when his wife was either U.S. senator or secretary of state, paid by people all over the world with no tangible connection to the Clintons other than that they had business of some sort before the government.  (Clinton often received $500,000 per appearance, which is better than even anyone working in Las Vegas and not fighting Floyd Mayweather.)  It would be easy for any prosecutor to go back and see what, if any, speaking fees were standard at the time for the people and organizations that bought these speeches.  If Clinton's were way above normal, as they are already proving to be, the elements of a violation of the Hobbs Act appear to be in place.

Under the DOJ's own guidelines, for money to be extorted, just a basic fear of "economic harm" is sufficient.  The public official does not even have to "take steps" to procure a particular payment; "the coercive element is provided by the public office itself" (Evans v. United States, 504 U.S. 255 [1992]).  Payments to third parties for the benefit of the public official also count under the Hobbs Act, so all the loot collected by the Clinton Foundation is in jeopardy as well.  Likewise, for the years when Hillary was secretary of state, she and her husband were under the executive branch gift regulations, 5 CFR Part 2635.  The massive speaking fees Bill obtained were so far out of the ordinary that he might expect as normal compensation as to constitute illegal gifts under the regulations.  It doesn't matter if there is a provable quid pro quo; executive branch officials and their spouses simply cannot take most gifts, even ones of small value.

Of course, I am sure the Obama Justice Department has a full schedule of race-baiting taking up all its time the next year and a half, so nothing official will happen to the Clintons for now.  But if we do get a Republican president, the statute of limitations is five years, which should suffice to allow a prosecution.  Hobbs Act violations carry up to twenty years in prison.  Gift regulation violations also carry substantial civil and criminal penalties.

Something similar nearly happened to the Clintons in 2001, when Denise Rich gave the Clinton Library $450,000, permitting Eric Holder to grease the way for Bill to pardon her husband, fugitive Marc Rich.  Sadly, the supposedly tough prosecutor George W. had investigate was Holder's good friend, James Comey, the guy who nailed Martha Stewart on a technicality and backed Peter Fitzgerald in the quixotic prosecution of Scooter Libby.  Comey did Holder and the Clintons a huge favor by sweeping the whole thing under the rug.  He was never so helpful for President Bush, becoming a thorn in the administration on everything from wiretapping laws to routine appointments of U.S. attorneys.  After leaving government for a lucrative defense contracting job, the Democrats' favorite Republican was on Obama's short list for the Supreme Court before becoming his FBI director.

Let's hope that new Republican president makes investigation of the Clintons the second thing he does in the White House.  The first thing would be to replace James Comey.

Frank Friday is an attorney in Louisville, KY.