The Clintons and the sordid UBS affair

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The story, as originally recounted by James V. Grimaldi and Rebecca Ballhaus of The Wall Street Journal, was, of itself, deeply troubling.  In March 2009, after meeting with Swiss Foreign Minister Micheline Calmy-Rey, then Secretary of State Hillary ClintonHillary Rodham ClintonTrump will cut ribbon on DC hotel Wednesday Obama reads round two of ‘mean tweets’ on Kimmel Mexican president says he rushed into meeting with Trump MORE intervened with the U.S. Internal Revenue Service (IRS) on behalf of Switzerland's most powerful banking institution, UBS.  The IRS, which at that time was seeking the identity of wealthy Americans who had stashed some $20 billion in 52,000 tax evading UBS accounts, then agreed that the Swiss bank need only turn over information on 4,450 accounts.  Afterwards, UBS increased its previous $60,000 in donations to the Clinton Foundation ten-fold.  By the end of 2014, UBS donations to the Clinton Foundation totaled $600,000.  UBS also "paid former President Bill ClintonBill ClintonTrump attacks Clinton over report her ally aided FBI official’s wife Winning Congress isn’t enough — Republicans have to save it Time for Clinton supporters to be tolerant and believe in 'stronger together' MORE $1.5 million to participate in a series of question-and-answer sessions with UBS Wealth Management Chief Executive Bob McCann, making UBS his biggest single corporate source of speech income disclosed since he left the White House." 

Those facts, of themselves, raise disturbing questions.  Did a bank that still ranks as "the world's biggest wealth manager" and has at its disposal a bevy of economists and law firms have a legitimate reason for paying Bill Clinton $1.5 million in speaking fees? Or was the $1.5 million and the tenfold increase in Clinton Foundation donations a reward for the former secretary of State's intervention?  If the latter, that reward would have, under federal law (18 U.S.C. § 201(c)(1)(A)), amounted to an illicit bribe.

But there's a more troubling question that arises.  There can be little doubt that a media firestorm would ensue if a former president were to accept a lucrative speaking fee from the Mafia.  Should the reaction be any different when the speaking fee comes from "banksters" who defrauded the U.S. government?

That's the true context here, according to a Feb. 18, 2009 U.S. Department of Justice (DoJ) press release that discussed the details of an unsealed "criminal information" and a "deferred prosecution agreement."  The DoJ alleges that UBS did much more than permit wealthy Americans to stash billions in tax evading offshore accounts.  In direct violation of a 2000 agreement with the IRS, Swiss bankers traveled to the U.S. 3,800 times to foster the elicit business and "used encrypted laptops and other counter-surveillance techniques to help prevent the detection of their marketing efforts and the identities and offshore assets of their U.S. clients."

"UBS executives knew that UBS's cross-border business violated the law," said R. Alexander Acosta, U.S. Attorney for the Southern District of Florida. "They refused to stop this activity...and in fact instructed their bankers to grow the business.  The reason was money -- the business was too profitable to give up.  This was not mere compliance oversight, but rather a knowing crime motivated by greed and disrespect for the law."

In exchange for the "deferred prosecution" of criminal fraud charges, UBS paid $780 million in fines and restitution, agreed to cease the illegal cross-border practice and "to immediately provide the United States government with the identities of, and account information for, certain United States customers of UBS's cross-border business," according to the DoJ press release.

When UBS, which could have lost its ability to conduct business in the U.S. if successfully prosecuted, balked at the IRS demand that it turn over information for all 52,000 accounts, the IRS filed a legal action seeking to compel disclosure.  That is when, at the behest of the Swiss government, Hillary Clinton stepped in to negotiate a deal that prevented the IRS from gaining access to more than 91 percent of the illicit, tax-evading offshore accounts.

Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a senior adviser to Veterans For Bernie.  He has been a member of the California state bar since 1977.