The Uranium One Deal: What Happened?

The Burden Of Proving There Was Not A Crime Is On Hillary

As a general matter, a criminal defendant is presumed innocent and therefore does not have the burden of proving innocence. Yet, that is just a presumption and where it is clear that such a presumption is not justifiable based on one or more facts, then the defendant indeed has the burden of proving innocence. In the case of the Uranium One deal, there can be no presumption that Hillary is innocent and hence she has the burden of proving her innocence. Why? Because of a contract the Clinton Foundation entered into as a condition for the approval of her nomination to be Obama’s Secretary of State.

The 2008 Contract Obligating Hillary To Take Precautions Regarding Precisely The Sort Of Transaction That Uranium One Was

Though frequently referred to in news stories on the Clinton Foundation (“CF”), the document, known as a “Memorandum of Understanding” (essentially, a ‘Contract’ (its five page text and the related cover letter to Congress available here)), has not been examined in nearly the detail it deserves. One reason that is the case is that to appreciate its significance requires looking beyond the two ‘parties’ who executed the Contract: CF and Obama’s ‘Transition Foundation.’

The real parties to the Contract, however, were Hillary and Obama. Furthermore, the Contract was intended to remain in force for as long as Hillary was Secretary of State. That effectively means it became an official US Government Contract upon Obama taking office. Moreover, Congress, as the representative body of the people of the US, was what is known in contract law as the ‘third party beneficiary.’ As much as any document the Contract was thus a “contract with America.”

Because of the nature of the issues implicated by the Contract, which relate to the very integrity of the US government, one would have hoped that the very best practices in drafting and executing legal documents would have been insisted upon for the Contract. That would include doing due diligence and obtaining legal opinions. That clearly did not happen. If it had, the Contract would have been recognized as fraudulent and Hillary’s nomination would never have been approved.

Misrepresentation & Breach

A basic legal opinion CF should have been required to provide would have included language that CF was, among other things (for example, duly organized and in good standing), “validly existing.” While that was then, and is today, ostensibly true as it relates to the Regs of the State where it was initially incorporated (Arkansas), its existence as a charity is a function of the Regs of the IRS. Based on available evidence no attorney could possibly conclude CF was at the time the Contract was delivered to Congress — or is today — validly existing as a charity. There simply is no evidence the IRS ever approved, inter alia, of the international scope of CF’s activities. That is particularly notable because such activities constituted the very rationale for entering into the Contract.

As a legal ‘person’ CF itself plainly knew then (as it must today) that it has not complied with the applicable IRS Regs vital to obtaining what is the lifeblood of any US charity: tax deductible contributions. That means Hillary knew. By executing the Contract and presenting it to Congress as a condition to Hillary’s confirmation, CF (and hence Hillary) defrauded Congress.

As bad as that is, it gets worse. The Contract itself, from a legal perspective, employs what is essentially a diversionary device. The equivalent of three of its not quite five full pages are taken up with language lifted from CF’s marketing material. To recognize the absurdity of such marketing language in an otherwise purely legal document is to recognize the identity of the drafter: the Contract could only have been drafted by a CF friendly attorney. That is strategically valuable to know for interpretive purposes. It means that deficiencies and ambiguities of the Contract can and should be construed against the interests of CF, and hence Hillary.

In this regard it is particularly troublesome for CF that Sec. II of the Contract imposes specific requirements on two of its initiatives. Such requirements are predicated on the assumption that they constituted identifiable entities in some sense independent of CF (such identification is often vital to establishing legal intent and obligation). Neither such initiative was in any way independent of CF at the time and hence barely identifiable apart from CF itself. Sec. II constitutes a deliberate misrepresentation of the facts by CF.

Pursuant to the Contract, “should [Hillary] be confirmed as Secretary of State,” CF was obligated to incorporate one such initiative (the Clinton Global Initiative (CGI)), “as a separate entity,” but that did not occur until months after her confirmation. Incredibly, in testifying before Congress prior to her confirmation, Hillary stated “CGI is not in the [Contract] . . . [it] is separate from the foundation” (full transcript available here). That was a lie. It gets even worse: CGI was merged back into CF at the end of 2012, a full month before Hillary’s resignation became effective. Thus, not only did Hillary misrepresent the Contract, which itself was a misrepresentation, but it is hard to imagine a more flagrant example of breach of contract, from start to finish, than is evidenced by the history of CGI’s incorporation.

The Catch-All Provision & Its Relevance To The Uranium One Deal

Notwithstanding its generally CF friendly language, the Contract concludes with language that it would seem was negotiated into it at the last minute, as a catch-all. It is evidence that someone had concerns about Hillary and how the Contract otherwise addresses such concerns. It requires that a State Department official “review and advise [Hillary] with respect to any activity that may be imputed under . . . any . . . applicable regulation or law, to her as a potential or actual conflict of interest” (bold italics mine). It is obvious that Hillary set-up her email deliberately to thwart precisely the oversight this language contemplates.

It is above all else obvious that the Uranium One deal constituted just such an activity that the Contract contemplated would be reviewed and with respect to which Hillary should have been advised. Based on publicly available evidence that did not happen. She herself appears to have made sure it did not happen. If that is not the case she needs to prove it.