We might as well get used to it: From now until Election Day, Republican presidential nominee Donald Trump is going to pound away in speeches and tweets about the Clinton Foundation and its criminal dealings with Democratic presidential nominee Hillary Clinton.
And why shouldn’t he? His base of supporters, and even people beyond his base, are angry about what Trump is slamming as “pay for play.” They see a case of quid-pro-quo corruption at work here – the pay or “quid” is contributions to the foundation in exchange for the “quo” of access to the then-secretary of state.
The foundation has just released its plan to remove the Clintons – and the Clinton name – from its signature Clinton Health Access Initiative. The Trump campaign said the move was just a “gimmick” in the face of Clinton’s “mounting controversies” with the foundation. The nation, meanwhile, is in one of its populist surges of widespread public outrage over political corruption, and it isn’t going to subside any time soon.
Yet the U.S. Supreme Court and the Justice Department have recently made it far less likely that Clinton’s actions could ever be subject to criminal prosecution. They have created a huge gap between what the public sees as corruption and what the law will recognize as a crime.
To see how this gap opened up, we have to look at the case of former Virginia Governor Robert McDonnell, now out of the limelight but considered a “rising Republican star” when he won the Virginia statehouse in 2010.
The public didn’t know, however, that McDonnell was in serious financial trouble. His real estate investments had tanked in the 2008 financial crisis, yet his political and lifestyle expenses had steadily increased.
Enter a businessman named Jonnie Williams, who wanted the state’s help in marketing a dietary supplement called Anatabloc. Williams gave the McDonnells lots of things — a Rolex for the governor, designer clothes for his wife, catering for their daughter’s wedding, a loan to their real estate company, the use of a Ferrari, and access to the golf course at Williams’ country club.
Then Williams turned state’s evidence against the McDonnells, who were convicted of public corruption in 2014.
McDonnell appealed all the way to the Supreme Court, which ruled on his case this spring. The court noted that the relationship between Williams and the McDonnells was “tawdry”– but what they had actually done for Williams was far from clear. They hosted a lunch for him; Williams said it was a product launch, while McDonnell said it was just lunch. McDonnell introduced Williams to the state’s secretary of health and human resources – who, unimpressed, did nothing for Williams or Anatabloc.
The court held that bribery requires a “quid pro quo” – something given to a public official and some “official act” performed in return for the gift – and that McDonnell had not performed any “official act” for Williams. The justices unanimously overturned McDonnell’s conviction.
Government officials, the ruling explained, are constantly in touch with private citizens – through phone calls, emails, meetings and more. Such interactions are the building blocks of representative government, the means by which citizens control their elected officials. Calling all these exchanges “official acts,” the court said, would “cast a pall of potential prosecution” over just about any contact politicians might have with constituents.
So, why not leave it to prosecutors to determine which contacts are criminally corrupt? Because the court did not want to “rely on ‘the Government’s discretion’ to protect against overzealous prosecutions.” For the justices, that kind of reliance would raise a “serious concern” about the Constitution’s guarantee of due process.
It must be said that this was a lot of high-flown constitutional rhetoric in defense of a family that had wheedled favors from an unsavory operator. Why the solicitude?
It makes sense only if we remember the political landscape that informed the justices’ sense of what kind of government behavior is fundamentally dangerous.
Even the youngest of the justices is old enough to have lived through the aftermath of Watergate, the scandal that led to the resignation of President Richard M. Nixon in 1974. That aftermath included the Office of the Independent Counsel, which persisted for 20 years before it had gored absolutely everyone’s ox and was allowed to expire. It included RICO, the Racketeering Influenced and Corrupt Organizations Act, which gave federal prosecutors immense new power. There was also the proliferation of aggressive internal investigation units in the federal government. The wave of prosecutions produced more people injured in the field than it did victories for public virtue.
When the justices laid out the dangers of unchecked prosecutors in the McDonnell ruling, they did so against the background of this political history. They were trying to correct what they saw as the excessive consequences of the country’s last moment of national outrage over public corruption.
The Justice Department has now announced that it will not re-try McDonnell.
If what McDonnell did is not a crime, what Clinton is accused of having done comes nowhere near criminal behavior.
To argue that the contributions to the Clinton Foundation were the “quid” in a “quid pro quo,” you’d have to say that the foundation provided personal benefits to the Clintons and their political friends. The alleged benefits, however, were far from direct. A prosecutor would need to show that the benefits were excessive and that the insiders themselves engineered those benefits.
As for the “quo,” what’s on the record so far is just meetings with the secretary of state. Such meetings weren’t necessarily insignificant: Anyone who does business knows how many deals depend on relationships built through meetings a clubs, dinners, golf games and other places where the secret handshake is performed. But the McDonnell ruling said that arranging such meetings is not an “official act” for which a public official could be criminally liable.
Even before what McDonnell called his “final day of vindication,” commentators were predicting that embattled public officials from Senator Robert Menendez of New Jersey to former Illinois Governor Rod Blagojovich would cite his case in arguing that their own actions fell short of criminality.
The McDonnell case should also give comfort to Trump, who has publicly boasted about the favors his campaign contributions have bought from politicians, but is now in trouble over his contribution to a PAC benefiting Florida Attorney General Pam Bondi. We know the sequence of events: In 2013, amid complaints of fraud against Trump University – including complaints by Floridians – New York’s attorney general filed suit against the university. Bondi’s office said it was considering whether to join this suit.
Four days after the announcement, Bondi’s PAC received $25,000 from Trump’s foundation. The next month, her office declined to participate in the suit.
It was illegal for Trump’s foundation, a 501(c)(3), to make any political contribution. Trump paid a penalty to the Internal Revenue Service and the Trump campaign has twisted itself into a pretzel trying to explain the gift. More than that, the donation reeked of pay-to-play: The decision by Bondi’s office not to join the Trump University lawsuit sure looks like an “official act,” and one that occurred in suspicious proximity to Trump’s contribution.
But the New York Times now reports that the Trump Foundation check was dated a few days before Bondi’s office said that it was considering joining in the suit against Trump University. Trump could still have known that the suit was under consideration. But in the post-McDonnell climate, it will be a lot harder for a prosecutor to show that the decision to stay out of the lawsuit was a “quo” delivered in exchange for Trump’s $25,000 “quid.”
So, the sense of outrage 40 years ago begot an eruption of prosecutions. The eruption begot the Supreme Court’s attempt at correction with the McDonnell case. Now the court’s attempt may have been an overcorrection that sets the stage for the next wave of popular frustration at public corruption.
Maybe one of these days we’ll get the balance right.
Suzanne Garment, a lawyer, is the author of "Scandal: The Culture of Mistrust in American Politics."
The views expressed in this article are not those of Reuters News.