FBI Little Rock field office

December 11, 2018 – Opinion: State filings suggests the Clinton Foundation mislead the IRS

By: John Solomon

“When confronted by detractors, the Clinton Foundation often uses a common line of defense: The charity is one of the most scrutinized in history and no one has found anything wrong with it.

But state regulatory filings suggest that may not be true.

In December 2005, for example, the Utah Division of Consumer Protection flagged missing information in the Clinton Foundation’s federal tax filing with the IRS, known as a form 990. The state regulator specifically flagged money spent on professional fundraisers and consultants that were excluded from the required section of the filing.

The state regulator urged the charity to file “an amended IRS form 990 reporting professional fundraising/consultant fees on line 30.” In particular, officials questioned nearly a half-million dollars in consultant fees about which it wanted more detail.

The foundation’s tax filing for the year in question, 2004, showed zero dollars spent on the required line for fundraising consulting expenses, even though other documents filed with the IRS identified more than $400,000.

The review was standard for a charity seeking a license to operate in Utah. The response regulators got back, however, was not so standard: Former President Clinton’s charity declined to make the change, even though Utah was suggesting the foundation’s federal tax form was incomplete or misleading.

“The problem that the Foundation faces is the enormous expenses and undertaking it would be to amend its 990,” a law firm representing the Clinton Foundation wrote back.

“Given that obstacle, the Foundation has no choice but to withdraw its application to register to solicit the public in Utah.”

In lay words, the cost of properly informing the IRS and complying with federal tax law was too much, so the foundation just ditched its Utah licensing request. There is no record of amended 2004 tax form by the charity, which means Utah’s concerns about possible missing information for the IRS wasn’t addressed at the federal level.

Foundation officials confirm the episode but said they believed they did not mislead the IRS because other parts of their submission included fundraising consulting expenses in a category called “Other Expenses.” “Our 2004 Form 990 is complete by IRS standards as we fully disclose fundraising expenditures in Part II – Other Expenses,” the foundation said in a statement emailed to me.

The Utah episode, though a decade old, and other state regulatory issues involving the Clinton Foundation are gaining new attraction because they are included in thousands of pages of documents gathered in a whistleblower submission filed last year by a firm composed of former federal law enforcement investigators, called MDA Analytics LLC.

That submission made with the IRS and eventually provided to the Justice Department in Washington and to the FBI in Little Rock, Ark., alleges there is “probable cause” to believe the Clinton Foundation broke federal tax law and possibly owes millions of dollars in tax penalties. That submission and its supporting evidence will be one focus of a GOP-led congressional hearing Thursday in the House.

The foundation strongly denies any wrongdoing. But it acknowledges its own internal legal reviews in 2008 and 2011 cited employee concerns ranging from quid pro quo promises to donors, to improper commingling of personal and charity business.

Another of the issues the foundation’s own lawyers flagged: a culture of noncompliance.

Some issues with compliance are clear in a review of more than 2,000 pages of state regulatory filings and actions involving the foundation that were included in the whistleblower submission.

For example, the foundation entered into a consent decree in 2002 in Mississippi in which it admitted it had raised money in the state without a proper license. The foundation says it was simply an oversight, paying a small fine in the hundreds of dollars.

But the charity potentially engaged in false statements for years later, inaccurately declaring in numerous states that it had never been subject to an adverse regulatory action — while failing to disclose the Mississippi violation.

The whistleblower submission to the IRS identified more than 100 state forms in which the foundation inaccurately answered. The foundation conceded the errors to me but suggested they were akin to minor traffic violations, pointing to a column by a tax expert two years ago that made such a case.

Likewise, in 2008, the Clinton Foundation’s AIDs charitable arm had its license to collect donations in Massachusetts involuntarily revoked for failure to file the necessary paperwork.

Foundation officials blamed that action on paperwork failing to keep up with changes in the group, which altered its name and eventually spun off from the foundation. State regulators weren’t told the old group’s name had been allowed to expire.

The records also show the foundation received multiple deficiency notifications and had its license expire once in the state of Georgia, usually because of late paperwork. (Read more: The Hill, 12/06/2018)

The Wall Street Journal confirms there is an on-going FBI Clinton Foundation investigation, but the Justice Department hasn’t given it investigative powers.

Little Rock FBI Field Office (Credit: public domain)

Little Rock FBI Field Office (Credit: public domain)

In January 2016, Fox News reported that the FBI had an on-going investigation into the Clinton Foundation, but this generally wasn’t reported or discussed in other media outlets. In August 2016, the Daily Caller reported on the FBI’s Clinton Foundation investigation, but this also wasn’t generally reported otherwise. For instance, a CNN story that same month asserted the investigation didn’t exist.

On this day, the Wall Street Journal confirms there is an on-going FBI Clinton Foundation investigation, and provides many new details about it. The investigation began some time before October 2015. By February 2016, four FBI field offices were collecting information about the foundation to see if there is evidence of financial crimes or influence-peddling:

  • The Los Angeles office developed an interest in the Clinton Foundation from an unrelated public-corruption case and has issued some subpoenas for bank records related to the foundation.
  • The Washington, DC, office is investigating financial relationships involving Virginia Governor Terry McAuliffe (D), who has been a Clinton Foundation board member.
  • The New York office has done the most work regarding the foundation.
  • The Little Rock, Arkansas, office has had some role, probably due to the Clintons’ ties in Arkansas, where Bill Clinton was governor.
The Jacob K. Javits Federal Building is home to the FBI field agents in New York, New York. (Credit: public domain)

FBI Field Office in New York, New York. (Credit: public domain)

In mid-July 2016, the New York office took charge of the investigation, with the Little Rock office providing assistance.

However, the Journal also reports that senior Justice Department officials have “repeatedly voiced skepticism of the strength of the evidence in [the FBI’s foundation investigation], sought to condense what was at times a sprawling cross-country effort, and, according to some people familiar with the matter, told agents to limit their pursuit of the case.”

Additionally, “Some investigators grew frustrated, viewing FBI leadership as uninterested in probing the charity, these people said. Others involved disagreed sharply, defending FBI bosses and saying [FBI Deputy Director Andrew] McCabe in particular was caught between an increasingly acrimonious fight for control between the Justice Department and FBI agents pursuing the Clinton Foundation case.”

In February 2016, FBI agents presented their evidence on the foundation to senior Justice Department officials. But those officials decided not to give the investigation the legal backing to convene a grand jury, which means investigators don’t have subpoena or search warrants power. However, the investigators have continued without that power, apparently collecting much of their evidence from publicly available information.

This situation has apparently continued ever since, with the investigation continuing but hobbled due to the lack of the legal powers given by a grand jury. According to the Journal paraphrasing an unnamed official, “the [New York] FBI office [is] eager to pour more resources into [the] case and Justice Department prosecutors [don’t] think much of the case…” (The Wall Street Journal, 10/30/2016)

FBI Miami Field Office (Credit: public domain)

FBI Miami Field Office (Credit: public domain)

Also on October 30, 2016, the Daily Caller will allege there is a fifth FBI field office – the Miami, Florida office – involved in the investigation.

Additionally, later on the same day, the Clinton Foundation denies knowledge of any government investigation targeting them.

However, the Washington Post confirms the Wall Street Journal’s claims. The Post emphasizes that the investigation has been blocked by the Justice Department’s public integrity section prosecutors, who are not politically appointed. (The Washington Post, 10/30/2016)