A few days ago, CNN reported that the FBI asked to investigate the Clinton Foundation earlier this year, but the Department of Justice said it did not have enough evidence to open a formal probe. I wrote about this report here.
But now, the Daily Caller is saying that several investigations of the Clinton Foundation have been launched, including one led by U.S. Attorney Preet Bharara of the Civil Frauds Unit that will focus on Clinton Foundation in New York. The Daily Caller’s Richard Pollock identifies his source as “a former senior law enforcement official.”
According to Pollock’s report, Bharara’s investigatation will be supported by various U.S. Attorneys Offices. This, he says, is a major departure from other centralized FBI investigations.
As I suggested in my post about DOJ’s reported refusal to authorize an investigation earlier in the year, much has been
learned since. Thus, whatever validity DOJ’s view about the evidence against Clinton Foundation may have had then (and I don’t think it had any), there is good reason to revisit the matter now.
What are the practical consequences of the Clinton Foundation being under investigation now, assuming that it is? It strikes me that the investigation, which almost certainly involves complicated transactions, isn’t likely to be completed before Election Day. Nor, even if it is, will the DOJ likely reach a decision to prosecute before then.
Once Clinton is inaugurated in January (assuming she wins), her Justice Department isn’t at all likely to charge her Foundation with criminal conduct. In the old days, an independent counsel might well have been appointed and given responsibility over the matter. But I don’t see that happening now, especially in a Hillary Clinton administration given the Clintons’ experience with Ken Starr.
There’s a period of more than two months between Election Day and Inauguration Day. But even if investigators were able to wrap things up during this period, I’d be shocked if the Justice Department brought charges against the president-elect or her Foundation.
I say this even though Bharara has a reputation, seemingly well earned, as a fearless prosecutor. It’s one thing fearlessly to investigate and/or prosecute powerful local and state officials. It’s another to prosecute the U.S. president.
Readers will probably recall hearing about James Comey’s well earned reputation for fearlessness and straight shooting. In the end, he declined to pursue a case against Hillary that would have been firmly rooted in the facts (as Comey presented them) and the statutory language.
Anyway, Bharara can’t prosecute the Clinton Foundation without DOJ approval. It seems unrealistic to imagine he could get it.