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Gingrich off base with his 'clearly illegal' comments about Clintons

Hillary Clinton is in the political crosshairs as the author of a new book alleges improper financial ties between her public and personal life.

At issue in conservative author Peter Schweizer’s forthcoming book “Clinton Cash” are donations from foreign governments to the Clinton Foundation while she was secretary of state.

Former Republican House Speaker Newt Gingrich said on ABC’s This week that the donations are “clearly illegal” under federal law.

“The Constitution of the United States says you cannot take money from foreign governments without explicit permission of the Congress. They wrote that in there because they knew the danger of corrupting our system by foreign money is enormous,” Gingrich said.

He continued, “My point is they took money from foreign governments while she was secretary of State. That is clearly illegal.”

PunditFact wondered: Is what happened “clearly illegal”?

A spokesman for the Clinton Foundation called Gingrich’s accusation “a baseless leap” because Clinton was not part of her husband’s foundation while serving as a senator or secretary of state.

Former President Clinton started the William J. Clinton Foundation in 2001. The foundation works with non-governmental organizations, the private sector and governments around the world on health, anti-poverty, HIV/AIDS and climate change initiatives.

Hillary Clinton was not part of her husband’s foundation while she was a New York senator or secretary of state. Her appointment to the latter post required Senate confirmation and came with an agreement between the White House and Clinton Foundation that the foundation would be more transparent about its donors.

Clinton took an active role in fundraising when she left the State Department and the foundation became the Bill, Hillary & Chelsea Clinton Foundation in 2013. She left the board when she announced her run for the presidency in April 2015.

So how does Gingrich come up with the claim that Clinton Foundation donations are “clearly illegal” and unconstitutional?

The answer is something known as the Emoluments Clause. The Emoluments Clause, found in Article 1, Section 9 of the Constitution, reads in part:

“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

Lest you think the law is no longer relevant, the Pentagon ethics office in 2013 warned employees the “little known provision” applies to all federal employees and military retirees. There’s no mention of spouses in the memo.

We asked seven different constitutional law experts on whether the Clinton Foundation foreign donations were “clearly illegal” and a violation of the Emoluments Clause.

We did not reach a consensus with their responses, though a majority thought the layers of separation between the foundation and Hillary Clinton work against Gingrich.

The American system often distinguishes between public officers and private foundations, “even if real life tends to blur some of those distinctions,” said American University law professor Steve Vladeck. Vladeck added that the Emoluments Clause has never been enforced.

“I very much doubt that the first case in its history would be because a foreign government made charitable donations to a private foundation controlled by a government employee’s relative,” he said. “Gingrich may think that giving money to the Clinton Foundation and giving money to then-Secretary Clinton are the same thing. Unfortunately for him, for purposes of federal regulations, statutes, and the Constitution, they’re formally — and, thus, legally — distinct.”

John Harrison, University of Virginia law professor and former deputy assistant attorney general in the Office of Legal Counsel from 1990 to 1993, pointed to the Foreign Gifts Act, 5 U.S.C. 7432, which sets rules for how the Emoluments Clause should work in practice.

The statute spells out the minimal value for acceptable gifts, and says it applies to spouses of the individuals covered, but “it doesn’t say anything about receipt of foreign gifts by other entities such as the Clinton Foundation.”

Other experts on the libertarian side of the scale thought Gingrich was more right in his assertion.

Clinton violates the clause because of its intentionally broad phrasing about gifts of “any kind whatever,” which would cover indirect gifts via the foundation, said Dave Kopel, a constitutional law professor at Denver University and research director at the libertarian Independence Institute. Kopel also brought up bribery statutes, which would require that a gift had some influence in Clinton’s decision while secretary of state.

Our ruling

Gingrich said the Clinton Foundation “took money from from foreign governments while (Hillary Clinton) was secretary of state. It is clearly illegal. … The Constitution says you can’t take this stuff.”

A clause in the Constitution does prohibit U.S. officials such as former Secretary of State Hillary Clinton from receiving gifts from foreign governments. But the gifts in this case were donations from foreign governments that went to the Clinton Foundation, not Hillary Clinton.

Does that violate the Constitution?

Some libertarian-minded constitutional law experts say it very well could. Others are skeptical. The reality is this is a hazy part of U.S. constitutional law.

We rate Gingrich’s statement Mostly False.

This fact-check was edited for length. For a full version with all sourcing, see:

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