Hillary Clinton’s presidential run is prompting new scrutiny of the Clintons’ financial and charitable affairs—something that’s already proved problematic for the Democratic frontrunner, given how closely these two worlds overlap. Last week, the New York Times examined Bill Clinton’s relationship with a Canadian mining financier, Frank Giustra, who has donated millions of dollars to the Clinton Foundation and sits on its board. Clinton, the story suggests, helped Giustra’s company secure a lucrative uranium-mining deal in Kazakhstan and in return received “a flow of cash” to the Clinton Foundation, including previously undisclosed donations from the company’s chairman totaling $2.35 million.
Giustra strenuously objects to how he was portrayed. “It’s frustrating,” he says. And because the donations came in through the Clinton Giustra Enterprise Partnership (CGEP)—a Canadian affiliate of the Clinton Foundation he established with the former president—he feels doubly implicated by the insinuation of a dark alliance.
“We’re not trying to hide anything,” he says. There are in fact 1,100 undisclosed donors to the Clinton Foundation, Giustra says, most of them non-U.S. residents who donated to CGEP. “All of the money that was raised by CGEP flowed through to the Clinton Foundation—every penny—and went to the [charitable] initiatives we identified,” he says.
The reason this is a politically explosive revelation is because the Clinton Foundation promised to disclose its donors as a condition of Hillary Clinton becoming secretary of state. Shortly after Barack Obama was elected president in 2008, the Clinton Foundation signed a “memorandum of understanding” with the Obama White House agreeing to reveal its contributors every year. The agreement stipulates that the “Clinton Giustra Sustainable Growth Initiative” (as the charity was then known) is part of the Clinton Foundation and must follow “the same protocols.”
It hasn’t.
Giustra says that’s because Canada’s federal privacy law forbids CGEP, a Canadian-registered charity, from revealing its donors. A memo he provided explaining the legal rationale cites CGEP’s “fiduciary obligations” to its contributors and Canada’s Personal Information Privacy and Electronic Disclosure Act. “We are not allowed to disclose even to the Clinton Foundation the names of our donors,” he says.
On Saturday, responding to the Times story, Maura Pally, the acting CEO of the Clinton Foundation, issued a statement echoing this assertion: “This is hardly an effort on our part to avoid transparency–unlike in the U.S., under Canadian law, all charities are prohibited from disclosing individual donors without prior permission from each donor.”
Canadian tax and privacy law experts were dubious of this claim. Len Farber, former director of tax policy at Canada's Department of Finance, said he wasn't aware of any tax laws that would prevent the charity from releasing its donors' names. "There's nothing that would preclude them from releasing the names of donors," he said. "It's entirely up to them."
Mark Blumberg, a charity lawyer at Blumberg Segal in Toronto, added that the legislation "does not generally apply to a registered charity unless a charity is conducting commercial activities... such as selling the list to third parties."
CGEP might have a stronger claim if it promised anonymity to donors, says David Fraser, a partner at McInnes Cooper in Halifax, Nova Scotia, who runs a blog on Canadian privacy law. He’s more skeptical of the argument that a charity has a fiduciary duty to donors. "They might have a fiduciary duty to the people they're collecting money to help," he said, "but for the donors that doesn't seem to have the ring of truth."
While Giustra says he can’t reveal any names, he is willing to disclose that CGEP money comes from “mostly Canadian donors.” The charity is registered in Canada, he says, not to hide the identity of its donors but to enable them to receive Canadian tax breaks that can reimburse them for nearly half of what they give.
However, not all CGEP’s big donors are Canadian. The Canada Revenue Agency—Canada’s IRS—requires charities to reveal whether they receive donations of more than $10,000 (Canadian) from people who are not Canadians, employed in the country, or carrying on business there. In both 2009 and 2010, CGEP filings show that it reported receiving such donations to Canadian authorities.
With millions of dollars and 1,100 donors shrouded in mystery, CGEP has caught the attention of journalist and authors, including Peter Schweizer, whose forthcoming book, Clinton Cash: The Untold Story of How and Why Foreign Governments and Businesses Helped Make Bill and Hillary Rich, details Giustra’s financial relationship with Bill Clinton and posits nefarious intentions. The fact that the Clinton Foundation promised something that Giustra feels he can’t supply—the identity of his donors—has put him in an even worse spot.
Giustra is fed up, and he’s vowing to do something to ease his disclosure constraints and clear his name. “There is a way around it—but you need each individual donor’s written permission to allow us to disclose their names,” he says. “We’re going through a process now where we’re trying to get the permission.” He adds, “We’re not going to go to 1,100 people. But we’re certainly going to go to the big ones—a couple hundred grand and up—and just see what they say. Now, they can say no. But we’re going to try.”
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