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Hillary Clinton and her family’s foundation aren’t likely to get the McDonnell treatment. Here’s why.

Left: Former Virginia governor Robert F. McDonnell. (Jahi Chikwendiu/The Washington Post) Right: Democratic Presidential nominee Hillary Clinton. ( Melina Mara/The Washington Post) Prosecutors are weighing whether to retry McDonnell on corruption charges, and some conservatives say Clinton should be investigated for similar wrongdoing related to access given to those who contributed to her family’s foundation.
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Justice Department officials are actively considering whether to retry former Virginia governor Robert F. McDonnell on federal corruption charges. That doesn’t sit well with some conservatives who view his dealings with Richmond businessman Jonnie R. Williams Sr. as not entirely dissimilar from Hillary Clinton’s interactions with donors to her family’s foundation while she was Secretary of State.

“Hillary Makes Gov McD Look Primitive,” Fox Business host Lou Dobbs tweeted last week. Other, lesser-known pundits shared similar views.

This much is true: Both situations involve questions about whether wealthy supporters got special access to government not available to ordinary people.

But there is no clear evidence that Clinton did anything because of donations that her charity received, and unlike McDonnell — who received golf outings, vacations and other personal financial benefits — Clinton pocketed nothing herself.

Emails reveal how foundation donors got access to Clinton and her close aides at State Dept.

Even before McDonnell was convicted, there would have been significant obstacles to even contemplating a case against Clinton. And in throwing out a jury’s verdict against McDonnell, the Supreme Court significantly narrowed what can be considered criminal public corruption. The court found that public officials meeting with constituents, or arranging for them to meet with others, was a routine part of the job and by itself could not constitute a politician’s end of a corrupt bargain.

Former Virginia governor Robert McDonnell won big on Sept. 8 when the corruption charges he had been fighting for four years were dropped. Here's what you need (Video: Monica Akhtar/The Washington Post)

“It doesn’t even reach the laugh test to think about a case against Hillary Clinton,” said white-collar criminal defense lawyer Scott L. Fredericksen. “People talking about that are doing it for political reasons.”

McDonnell’s defense lawyer and a spokesman for the U.S. attorney’s office that prosecuted McDonnell declined to comment for this story. Brian Fallon, a spokesman for the Clinton campaign, said in a statement: “As the State Department said last week, its actions under Secretary Clinton were always taken with the intent to advance our foreign policy interests and with no other intent in mind. There has never been a shred of evidence to suggest otherwise. These comparisons are entirely political and have no basis in fact whatsoever.”

To substantiate a federal corruption case against a public official, prosecutors must demonstrate that the official received something of value in exchange for performing an official act. In McDonnell’s case, they alleged that the former Virginia governor received $177,000 in loans, gifts and other luxury goods, and in exchange, he helped Williams advance his personal business interests. McDonnell did that, they alleged, by arranging meetings for Williams with other state officials, allowing him to host an event at the governor’s mansion, and once even pulling out a bottle of the dietary supplement Williams was trying to sell and telling state human resources officials it had worked for him.

McDonnell and his wife, Maureen, were convicted and sentenced in the case, and a federal appeals court upheld that result. But the Supreme Court unanimously threw out the former governor’s conviction, deciding that jurors were wrongly instructed on the meaning of an “official act,” the thing that prosecutors had to prove McDonnell did in exchange for Williams’s largesse. Though the court said McDonnell could hypothetically be retried with new jury instructions, the justices also clarified what an “official act” could be — in a way that might undercut that effort and efforts to charge other politicians with corruption.

Setting up a meeting, talking to another official, or organizing an event — without more — does not fit that definition of ‘official act,’ ” the justices wrote.

That is a critical point, particularly for Clinton. While conservative critics might suggest there is a corrupt, quid pro quo arrangement between her and those who donated to her family’s foundation, that allegation is based largely on the fact that Clinton met with donors or that her staff interacted with them.

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 McDonnell, you had an explicit quid pro quo really to do more than just take a meeting — it was a situation where the jury found the governor had really actively lobbied on behalf of a business associate and put pressure on people who were under him in the food chain to benefit the business associate,” said Daniel Weiner of the Brennan Center for Justice, a nonprofit that wrote a legal brief in support of the government in McDonnell’s case.  “There’s really no evidence of allegations of that in the Clinton situation.”

McDonnell, of course, has asserted that Williams got little more than a few meetings and that what he did for Williams amounted to routine political courtesy. For their part, prosecutors don’t dispute that Williams never achieved what might have been his ultimate goal: getting his dietary supplement, Anatabloc, included in the state health plan or having it studied by state researchers.

But to substantiate a public corruption case, prosecutors need not prove that the benefactor got precisely what was desired. They must only prove that what the benefactor gave was in exchange for an official act.

In McDonnell’s case, they convinced jurors largely by presenting evidence that the generosity the governor received came close in time to his actions on Williams’s behalf. In one instance, the governor directed a subordinate to meet with Williams on the same night he returned from a free vacation at his lake house. In another, six minutes after emailing Williams about a loan, McDonnell emailed an aide about studies Williams wanted conducted on Anatabloc.

In Clinton’s case, proving a link between what the Clinton Foundation received and what she did for its donors would seem to be substantially more difficult and perhaps impossible. Some critics have noted that the crown prince of Bahrain — whose government gave more than $50,000 to the Clinton Foundation and who has spent tens of millions on an educational program in conjunction with the Clinton Global Initiative — got a meeting with Clinton after Doug Band, a longtime Bill Clinton aide who helped create the foundation, reached out to Hillary Clinton confidante Huma Abedin and noted that the prince was a “Good friend of ours.” But the crown prince, Salman bin Hamad al-Khalifa, had already reached out through official channels, and it is not clear when the money came in relation to the meeting request.

The court of the crown prince said his participation at a 2005 foundation event “happened years before and was wholly unrelated to any meeting with Secretary Clinton,” and noted that the prince often meets with U.S. officials. The foundation recently announced that it would ban contributions from foreign and corporate donors were Clinton elected president, a move that a Washington Post analysis found would prevent more than half its donors from contributing to the charity.

There is no evidence that the Clinton Foundation is directly under any type of FBI probe, though at a recent congressional hearing, FBI Director James B. Comey notably refused to say one way or the other whether his agents were looking into it. Comey recently recommended that neither Clinton nor her aides be charged in a separate investigation into whether she mishandled classified information by using a private email server while secretary of state.

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.

Legal experts also pointed out that Williams’s generosity to McDonnell came to McDonnell directly. The businessman gave the former governor and his family loans, vacations, golf outings and other luxury goods. In Clinton’s case, the donations went to a charitable foundation that does laudable work and from which the Democratic presidential nominee draws no salary.

That is not to say, from a legal perspective, that donations to the Clinton Foundation could not form the “quid” in a corrupt quid pro quo. Former Alabama governor Don Siegelman, for example, was convicted of appointing Alabama health-care executive Richard Scrushy to a regulatory board in exchange for a $500,000 contribution Scrushy made to a campaign Siegelman supported that would have helped send money to the state’s schools. From prison, Siegelman has asserted that there was “no personal benefit” and noted that “the contribution was not even to me but to a ballot initiative.”

To substantiate a case against Clinton, though, prosecutors would ultimately have to convince jurors that she did wrong, and the contributions going to the foundation would undoubtedly complicate that effort. Personal gifts provide strong evidence of a corrupt bargain in a way that charitable giving or even campaign contributions do not.

Read more:

Clinton’s Bahrain problem has nothing to do with the Clinton Foundation

FBI defends decision not to charge Clinton as it submits probe documents to Congress

FBI recommends no criminal charges in email probe