Director Christopher Wray
Director - FBI
935 Pennsylvania Avenue, NW
Washington, D.C. 20535-0001
Dear Director Wray,
I write to report apparently serious criminal offences committed by US nationals and others involving the Clinton Foundation.
Since 2006 the Clinton Foundation has directly solicited more than AUD $88 Million in taxpayer-funded donations from the Australian Government.
I will allege that most of those donations were obtained as a result of a scheme to defraud Australian taxpayers. I will further allege that several Australian political figures sought benefits for themselves as a result of the provision of taxpayer donations to the Clinton Foundation.
I have a number of matters to report to you - each by separate copy.
This is the first of those reports.
I now formally report to you, by way of criminal complaint, the offences disclosed in the following conduct commencing on 22 February 2006.
I respectfully request that the FBI further investigates these criminal complaints, namely:
- William J CLINTON's false and misleading claims regarding his relationship with the Clinton Foundation
- The backdating of the purported merger agreement between the Clinton Foundation and the Clinton HIV/Aids Initiative Inc and associated crimes
- The illegal conduct of the Clinton Foundation and its associates in Papua New Guinea, including the apparent corruption of public officials.
The 2006 $25M MoU
On 22 February 2006 the Australian Government’s Department of Foreign Affairs (DFAT) reported in a statement:
The Australian Government and the William J. Clinton Foundation have joined forces. The Minister for Foreign Affairs, Alexander Downer, and former President of the United States, Bill Clinton, signed a Memorandum of Understanding which will provide $25 million from Australia over four years. This figure will be complemented by a similar amount from the Clinton Foundation.
Initially, the partnership will fund activities in three countries – Papua New Guinea,Vietnam and China. The Clinton Foundation and AusAID will work together with public health authorities to scale-up treatment and care for people living with HIV/AIDS. This will include availability of antiretroviral drugs, improving laboratory and testing infrastructure, and strengthening monitoring and evaluation systems.
William J CLINTON signed the document over the words “For the William J Clinton Foundation HIV/Aids Initiative,”.
In a statement (emailed to me) DFAT advised that Clinton executed the agreement as the “Founder” of the Clinton Foundation.
Clinton was never the “founder” of the Clinton Foundation which was incorporated in 1997, nor of the Clinton HIV/Aids Initiative Inc. For at least 5 years from 2001 Clinton was prohibited from holding a number of legal and/or trustee positions on account of his disbarment following dishonesty convictions in US courts. Clinton held no role and had no fiduciary responsibility for the Clinton Foundation or CHAI until 2013.
Notwithstanding those facts, Clinton signed his name to a document that stated amongst other things “William J Clinton has made the global battle against HIV/Aids a major area of focus for his foundation”.
During the ceremony to mark the signing of the MOU, Clinton spoke as the decision-maker wholly responsible for the performance of the Clinton Foundation. He held no such role and while he may have been confident in his ability to influence the Board of the Clinton Foundation - his statements about control and establishment of the Clinton Foundation were false, misleading and had the effect of engendering unwarranted confidence in what turned out to be a false narrative concerning the Foundation's ability to deliver on its agreements.
As a result of the representations made in the MOU, the Australian Government subsequently established contractual/financial agreements with the Clinton Foundation HIV/Aids Initiative in respect of PNG, Vietnam, China and Indonesia and donations totalling more than $25M were transmitted to the Clinton Foundation or other entities associated with it.
While Clinton's false representations in soliciting donations represent serious criminality, my investigations in this matter have disclosed other serious crimes involving Clinton and the Foundation.
The conduct includes back-dating documents, forgeries and false and misleading statements made to the IRS in connection with a purported 31 December 2005 merger between the Clinton Foundation and a separate legal entity, the Clinton HIV/Aids Initiative Inc.
Following the 22 February MOU and the signing of a funding agreement in respect of PNG, I have also detected significant criminal activity involving public officials and others in connection with the incorporation of a Clinton Foundation entity in PNG in 2006.
It may be helpful to establish a timeline:
History and timeline - the Clinton Foundation and CHAI Inc
On 23 October 1997 the William J Clinton Presidential Foundation was registered as a domestic non-profit corporation in the State of Arkansas.
On 23 December 1997 the Foundation successfully applied to the IRS for exemption from taxation under 501(c)(3) of the internal revenue code. The “Clinton Foundation” was thus founded, established, organised and licensed to operate as a public charitable foundation to build, house and operate a Presidential Archival Depository. William J Clinton was not an officer, trustee, director or manager of the Foundation at any time until 2013.
On 24 March 2004 the Clinton Foundation HIV/Aids Initiative Inc was incorporated in the State of Arkansas, although it was headquartered in Quincy, Massachusetts. On the same day it applied to the Secretary of State, Massachusetts for registration.
On 29 April 2004 the CHAI applied to the IRS for exemption from taxation in order to conduct its program focussed on treatment for HIV/Aids, with particular focus on the supply of cut-priced pharmaceuticals.
On 4 May 2004 Massachusetts regulatory authorities recognised CHAI as a foreign corporation and licensed it to operate in that state. Apparently in anticipation of a favourable IRS ruling, the CHAI commenced to distribute HIV/Aids pharmaceuticals and other HIV/Aids treatments without any provision for taxes.
During 2004 the Clinton HIV/Aids Initiative Inc brought in revenues of $5.8M. It had staff salaries of $800K along with a massive travel bill of $2.3M.
The CHAI Inc continued to operate throughout 2005 - in its 2005 financial report, CHAI disclosed $15.8M in revenues along with agreements with "20 new countries, giving (those countries) access to the Initiative’s reduced pricing” for HIV/Aids pharmaceuticals.
The Clinton Foundation’s 2005 report noted
“THE CLINTON FOUNDATION HIV/AIDS INITIATIVE (CHAI) EXPANDED ITS PROCUREMENT CONSORTIUM, WHICH OBTAINS LIFE-SAVING AIDS MEDICINES FOR OVER 50 DEVELOPING NATIONS AT A SUBSTANTIALLY REDUCED PRICE”.
In December 2005 the CHAI was apparently advised by the IRS that its application for exemption from taxation had been refused. The refusal was a surprise and a most unwelcome one. Once final, it meant CHAI's authority to operate would have been removed.
(In Federation Pharmacy Services, Inc. v. Commissioner, 625 F.2d 804 (8th Cir. 1980), aff’g 72 T.C. 687 (1979), the appellate court held that a nonprofit pharmaceutical service was not exempt as a charitable organization because it was operated for the substantial commercial purpose of providing pharmacy services to the general public).
On 22 February 2006 Clinton signed the MoU with the Australian Government for and on behalf of the Clinton HIV/Aids Initiative.
On 31 May 2006 Ira Magaziner, Chairman of the CHAI signed a State of Massachusetts “Form PC”, Annual return for charities. He declared “Under the penalty of perjury” that the information in the return was true and correct. No mention was made of the CHAI being merged or liquidated.
On 9 June 2006 the accounting and audit firm BKD LLP of Little Rock Arkansas wrote to the Board of Directors, William J. Clinton Foundation LLC Inc. enclosing annual financial and audit report for the calendar year 2005. No mention was made of any merger with the CHAI noted as a separate legal entity. At the same time the same firm completed a Form 990 annual IRS return for the Clinton Foundation.
On 24 July 2006, 6 weeks after the 2005 audit was finalised, Clinton Foundation CFO Andrew Kessel told the IRS in writing the Foundation would be unable to comply with a 15 August deadline for the submission of its annual Form 990 financial return. He signed a written statement “subject to the penalties of perjury” stating a 3 months extension on the due date was needed "to accumulate the information necessary to file a complete and accurate return", taking the due date out to 15 November 2006. The application for extra time was assessed by the Field Director for Submissions to the IRS at its Ogden Branch.
Kessel submitted a similar sworn application on behalf of the CHAI.
On 31 July 2006 the Australian Government’s Department of Foreign Affairs (DFAT) executed an $11M funding agreement with the CHAI for HIV/Aids programs in Papua New Guinea.
On 14 August 2006 the IRS Field Supervisor approved the Clinton Foundation’s 3 month extension of time for its Form 990 annual return - making it due on 15 November 2006 - along with an instruction to include the application and approval for the extension in the 990 return.
On 21 August, 2006 one Ruby SHANG (then the wife of the Caterpillar earthmoving dealer in Vietnam, a US citizen) gave notice to the PNG companies regulator that she intended to apply for incorporation for and on behalf of the "William J. Clinton Foundation HIV/Aids Initiative - PNG". Ms Shang made a statement to the PNG Registrar of Companies stating that she was authorised by the committee of the said association to make the application.
On 23 August 2006 a Notice appeared in the PNG national newspaper “Notice of intention to apply for incorporation of an association” called “Clinton Foundation HIV/Aids Initiative - PNG”. PNG legislation required 30 clear days from the advertisement of intention to incorporation before the regulator could consider the application.
On 23 August 2006 Ruby Shang attended on the PNG Registrar with an unsworn statutory declaration form and a clipping from the newspaper advertising her intention to apply under Section 2 of the Incorporated Associations Act for the incorporation of the CHAI Association PNG Inc.
At 8.38AM on 24 August 2006 Ruby Shang delivered to the Regulator a copy of the Clinton Foundation's articles of association filed in the State of Arkansas in 1997. The articles bear no relationship to the requirements of the PNG Incorporated Associations Act which calls for specific matters to be addressed in the rules/objects of PNG incorporated associations.
At 10:03AM on 24 August 2006 the 'Clinton Foundation HIV/Aids Initiative - PNG Inc' was unlawfully incorporated. There had been no 30 day cooling-off period (as required by law), no PNG existing association to incorporate, no proper rules/objects filed and a range of other deficiencies. At the US end Ruby Shang is not nominated on IRS filings as a responsible person for the organisation, operation and control of an offshore offshoot of the Clinton Foundation.
Up until this point in 2006 the Clinton Foundation and Clinton HIV/Aids Initiative Inc were operating as separate legal entities. There had been no announcement regarding any merger. Each entity operated with its own Federal Employer Identification Number, bank accounts and premises.
On 27 October 2006 - the Clinton Foundation IRS 990 for 2005 was printed and date-stamped.
On 6 November 2006 - Clinton Foundation 2005 IRS 990 date stamped as filed with the IRS at Ogden. The version filed with the IRS includes documents entitled “Articles of Merger” and “Plan of Merger” which purport to have been agreed by the Board of the Clinton Foundation on 25 April, 2005 - and by the Board of CHAI Inc on 15 December 2005. Those documents describe a merger of the CHAI and the Clinton Foundation effective at 31 December 2005, with the CHAI having ceased to exist on that date and only the Clinton Foundation continuing as the surviving entity.
On 13 November 2006 - the Clinton Foundation HIV/Aids Initiative Inc IRS990 for 2005 was filed at Ogden. It contains similar documents to those in the Clinton Foundation filing regarding the purported merger.
On 20 December 2006 - a different copy of the Clinton Foundation IRS 990 for 2005 was printed and time-stamped for display online at the Clinton Foundation website under the heading
The Clinton Foundation is committed to transparency and accountability throughout its work. This page includes the Foundation’s annual reports, audited financials and annual tax filings, tax-exempt status filings and certifications.
The version of the 990 exhibited at the Clinton Foundation website differs materially from the actual 990 filed with the IRS. It does not contain the merger agreement. It contains a redacted purported donor list. There are no CHAI 990 IRS returns exhibited at the Clinton Foundation website at all.
During 2006-2007 - the Clinton HIV/Aids Initiative Inc continues to operate with its IRS recognised Federal Employer Identification Number 20-0921629 - quite separate from the Clinton Foundation 31-1580204.
CHAI continued to feature on the Clinton Foundation marketing material as a separate "initiative" or division. The entity continued to operate wholly separately with its own premises at Water Street, Quincy MA.
On 31 December 2007 - CHAI Inc was dissolved by the Secretary of State, Massachussets.
Mr Howard Cutter of the Massachusetts Secretary of State’s office wrote to me to advise “The entity (CHAI Inc) was dissolved by our office for failure to file annual reports in consecutive years”.
Had the merger taken place on 31 December 2005 as the backdated documents in the IRS 990 filings suggest, there would have been no CHAI to dissolve.
Corporate regulatory authorities in the State of Arkansas seem to have been more helpful to the Clintons and associates. The Arkansas authority records show the CHAI Inc's status as "merged".
There are several reasons to believe the purported Clinton Foundation & Clinton HiV/Aids Initiative Inc merger documents were false and backdated.
Australia’s July funding agreement in respect of Papua New Guinea was with the CHAI as recorded on the Austender website - the purchasing management division of the Australian Government and a stickler for correct contracting entities..
During the whole of 2006, no advice was given nor announcement made that the CHAI Inc had ceased to exist as a result of a merger into the Clinton Foundation purportedly executed on 31 December 2005.
The Clinton Foundation’s external accountants and auditors prepared an Audit Report in June 2006 for the Clinton Foundation's 2005 year. It doesn’t mention what would have been the material matter of any merger.
On 31 May 2006 CHAI Inc Chairman Ira Magaziner submitted a financial report to Massachusetts charity regulators on pain of perjury for false or misleading statements - he didn’t mention any merger.
Prior to October 2006, there is no verifiable evidence of any merger - nor of any agreement to merge the entities.
The two 3 month extensions of time (to 15 November 2006) to submit 2005 IRS 990 returns for each of the Clinton Foundation and the CHAI Inc would have been wholly unnecessary if the merger had taken place as described. Kessels wrote (under the pain of a perjury conviction for which he may yet be called to account) that the extension of time was necessary in order to gather information to complete an accurate return. Had the merger taken place on 31 December 2005, each entities financial position would have been accurately stated on that date, obviating the necessity for more time that August.
The Clinton Foundation itself was not authorised by the IRS to conduct any business in the distribution of HIV/Aids treatments. The apparent refusal of the IRS to grant the CHAI tax exempt status was the trigger for a chain of events over several months which created substantial problems for the two entities. Apparently persons associated with Clinton and Magaziner decided the solution was to pretend that the CHAI Inc had been dissolved and merged into the Clinton Foundation in 31 December 2005. That deception left Australia exposed to contracts with a ghost corporation.
All of the foregoing might have been of less interest had the CHAI delivered value for the Australian taxpayer funded aid dollars donated to it. In that regard it's useful to consider the audit report of the CHAI PNG performance.
Performance of the PNG contract
The biggest contract under the $25M MOU was the Clinton Foundation HIV/Aids Initiative PNG - all up Australia gave the Clintons about $15M earmarked for PNG between 2006 and 2009.
Recall that the CF was supposed to "complement" Australian funding by making its own contribution.
We put in $15M odd cash but according to the audit report,
"CF has contributed paediatric ARVs, paediatric OI drugs, commodities for the Early Infant Diagnosis Program (e.g. reagents, equipment including PCR machine) totalling US$417,622 USD as of June 2009".
The audit report is here:
Here are some direct quotes:
- assessment of value for money has not been possible due to insufficient financial information in project reporting
- the inadequacy of project documentation has quite significantly affected the ability to undertake a systematic evaluation of the project.
- inadequate outcome indicators against one consistent set of objectives limits the extent to which there can be an acceptable discussion about effectiveness.
The Audit noted the project had
- no statement of project goal or purpose,
- no clear Program Area objectives and
- no targets
The auditors noted:
A Funding Agreement was signed in July 2006 between the government of Australia and CHAI. This outlined the terms and conditions of the arrangement between AusAID and CHAI for the implementation of CHAI in PNG. This agreement states that “the parties agree to monitor the Program against the Program Milestones and evaluate it against the Program Outcomes.” The defining document against which this occurs is the Program Workplan 2006- 2009. As noted above there is no stated objective/outcome in this document (or any documents subsequent to this) for the whole project (and associated indicators). Outcomes or objectives for each of the AoC are not articulated (thus no indicators provided). It is therefore impossible for this part of the agreement to be adhered to.
the overarching goal/purpose/objective of the CHAI was never clearly articulated, and thus no indicators to measure its achievement have been presented in any project documentation.
In the absence of a clear statement of objectives at the overall project level, and objective statements without indicators at the Program Area level it is not possible to say with any degree of confidence whether CHAI has been effective.
Director Wray, I retain copies of each of the originating documents that support any assertion of fact made in this report to you. I can provide you with statements regarding the chain of custody and provenance of those documents.
I believe that serious cross-border criminal offences are disclosed in the conduct I report to you. I will be pleased to provide you with any further assistance in bringing the offenders to justice.