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Legal Expert On Whether Donations to Clinton Foundation Are Bribes: If It ‘Quacks Like a Duck, Chances Are It Is a Duck’

Two legal experts tell Breitbart News Hillary Clinton and the Clinton Foundation could be in legal peril for violating United States statutes, as found in 18 U.S. Code § 201 – Bribery of public officials and witnesses.

When asked if the donations to the Clinton Foundation by defense contractors including Boeing (which subsequently received State Department approval of sales of their products to foreign governments) constituted a violation of domestic bribery statues, Law School Professor and Foreign Corrupt Practices Act (FCPA) expert Michael Koehler tells Breitbart News, “I’ll answer that question by quoting a former law professor who was fond of saying ‘if it walks like a duck and quacks like a duck chances are it is a duck'”

Former Assistant U.S. Attorney for the Southern District of New York Andy McCarthy thinks there’s enough evidence for the FBI and DOJ to launch an investigation into whether Hillary Clinton broke federal statutes that prohibit the bribery of public officials.

“There is certainly a reasonable basis for federal agents and prosecutors to investigate whether there was an understanding that Secretary Clinton would be influenced in the performance of her official duties by lavish donations to her family foundation, and, indeed, that the Clinton Foundation was operated as a racketeering enterprise,” McCarthy tells Breitbart News.

“This is the theory on which the Justice Department has proceeded in the prosecution of Senator Robert Menendez — in fact, the main difference between the two cases may be that the staggering sums of money that were poured into the Clinton Foundation by supplicants who benefited from Hillary Clinton’s stewardship of the State Department dwarf the amounts involved in the Menendez indictment,” McCarthy continues.

“Given that Congress’s array of campaign finance laws are designed to prevent precisely what the Clinton Foundation has wrought — namely, the appearance of political influence on sales — one would think the FBI and the Justice Department would be obliged to investigate,” McCarthy concludes.

A recent article in the International Business Times reported that 20 foreign governments and several defense contractors have donated millions of dollars to the Clinton Foundation. All saw a significant increase in arms sales approved by the State Department during Hillary Clinton’s tenure as Secretary of State.

Meredith McGehee, policy director at the Campaign Legal Center, offered a comment in the article that, if true, suggests that the Clinton Foundation, Hillary Clinton, and dozens of donors to the Clinton Foundation may have violated 18 U.S. Code § 201–the domestic bribery provisions–of United States statutes:

The word was out to these groups that one of the best ways to gain access and influence with the Clintons was to give to this foundation. . . This shows why having public officials, or even spouses of public officials, connected with these nonprofits is problematic.

Three experts on the FCPA, the law passed by Congress in 1977 in response to news stories that Lockheed had been engaged in a systematic program of bribing foreign officials in return for foreign government contracts, (Steptoe and Johnson attorney Michael Edney – writing in the Wall Street Journal, CFPA expert attorney Roger Cassin, and Koehler) all seem to be in agreement that had these very same transactions taken place in a foreign country–an American company donating to a foundation established by the country’s former president who was married to that country’s current Foreign Minister, who in turn authorized the purchase of arms from that country — it would have been a violation of the FCPA.

“The FCPA is generally modeled after 18 U.S. Code § 201, the domestic bribery statute,” Koehler tells Breitbart News.

“It seems like, and this is where the double standard comes in, U.S. corporation interaction with foreign officials is subject to a materially different standard than interaction with our own officials,” Koehler notes.

“The enforcement of it is the double standard,” Koehler adds.”It has really only manifested itself in the last 5 to 10 years….SEC and DOJ are responsible for the enforcement.”

When asked why this double standard has arisen, Koehler tells Breitbart News, “Good question. I haven’t really wrapped my mind around that.”

18 U.S. Code § 201 – Bribery of public officials and witnesses – contains legal language that may now be sending shudders through Clinton campaign staffers:

(b) Whoever—

(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

(A) being influenced in the performance of any official act;

(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) being induced to do or omit to do any act in violation of the official duty of such official or person; . .

shall be fined under this title or imprisoned for not more than two years, or both.

(emphasis added)

The details outlined in the IBT story- 20 foreign countries donated tens of millions of dollars to the Clinton Foundation and saw a doubling of the volume of armed sales approved by the Department of State during Hillary Clinton’s tenure as Secretary State, and six defense contractors who donated millions to the Clinton Foundation saw an uptick in their sales to foreign governments, all of which required State Department approval, appear to be very “duck-like.”

The case of Boeing, in particular is cause for concern as it relates to 18 U.S. Code § 201.

Boeing has been the most prolific defense contractor donor to the Clinton Foundation, giving a total of $5 million.

During Hillary Clinton’s tenure as Secretary of State, the company landed a $3.7 billion deal with the Russian government, one that Clinton herself pushed and promoted during a visit to Russia. Two months after the deal closed, Boeing donated $900,000 of its total $5 million to the Clinton Foundation.

These facts, when combined with McGehee’s comment that “[t]he word was out to these groups that one of the best ways to gain access and influence with the Clintons was to give to this foundation,” and measured against the standard of 18 U.S. Code § 201 that “whoever being a public official . . . agrees to receive or accept anything of value personally or for any other person or entity, in return for: (A) being influenced in the performance of any official act; . . . shall be fined under this title or imprisoned for not more than two years, or both” present a problem for the FBI, the Department of Justice, and the Clinton campaign.

Should either the FBI or the Department of Justice, under recently confirmed Attorney General Loretta Lynch, fail to launch an investigation of this transaction, both will be vulnerable to charges that a double standard of selective investigation and prosecution exists. If you’re Hillary Clinton and engage in questionable behavior, you get a free pass. If you’re someone else—say, a conservative or an opponent of President Obama’s foreign policy, such as Senator Robert Mendez (D-NJ)– you will be investigated and prosecuted.

On the other hand, should the FBI or the Department of Justice actually launch an investigation, they will face pressure to make a decision whether to prosecute Hillary Clinton right around the time voters go to the polls in November 2016 to elect a new President.

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