NEW YORK – Donald Trump’s recent spotlight on Univision’s strong political support of Hillary Clinton drew attention to Cheryl Saban, the wife of the Spanish-language TV network’s owner and a board member of the Clinton Foundation.
A respected Wall Street analyst who has investigated the Clinton Foundation, Charles Ortel, contends Saban bears legal responsibility for fraudulent financial statements related to the construction of the Clinton Presidential Library, which were used to solicit donations inside and outside the United States, including a donation of more than $100,000 from Trump.
Ortel told WND that if a pattern of inurement – the crime of personally profiting from a non-profit organization – is established “in a duly constituted criminal legal process, all directors of the Clinton Foundation, including Saban, will have serious, perhaps even criminal, legal liabilities.”
Ortel believes accounting irregularities were deliberately created to cover up the use of the charity by the Clintons and their close associates “to enrich themselves by defrauding thousands of charitable donors in the United States and around the world.”
Ortel’s concerns about the Clinton Foundation directors arise from what he believes are false and misleading public disclosures. WND reported Ortel’s conclusion that the Clinton Foundation could “Enron” PWC, his finding that no one verified whether or not the foundation was a tax-exempt charity and his evidence that PWC allowed the foundation to “skim millions.”
Ortel alleges the most recent audit by PricewaterhouseCoopers published by the Clinton Foundation, while Cheryl Saban was a director, makes reference to a fraudulent set of transactions that occurred during 2004. At that time, the Clinton Foundation supposedly “donated” a partial interest in the Little Rock, Arkansas, campus of the Clinton Presidential Library to the National Archives and Records Administration, NARA, in Washington, Ortel said.
Ortel contends a tracking of the donation through Clinton Foundation financial reports dating back to 2004 reveals a diversion from donors of up to $36 million to the Clintons and their close associates to enrich themselves.
“The extensive experience that Trump and his organization have regarding the accounting rules for construction and construction finance lead me to believe our ongoing analysis could become material as the Trump controversy with Univision develops,” Ortel commented.
“Trump and his financial advisers should quickly grasp what the general public has not yet appreciated, namely the diversion of tens of millions of dollars in an inurement scheme perpetrated by the Clintons and their senior advisers since 2001, when construction began on the Clinton Presidential Library in Little Rock, Arkansas,” he said.
Last week, Trump said Univision’s decision to sever ties with his Miss Universe pageant was a reaction from Mexico and Univision owner Haim Saban to get him “to not talk about trade and the southern border.” Macy’s now has ended its relationship with him.
Note under question
In developing what he believes is proof of a $36 million diversion, Ortel began by pointing WND to Note 12 on pages 17-18 of the PricewaterhouseCoopers consolidated financial statements for Dec. 31, 2013, and 2012.
The Dec. 16, 2014, document is titled “Transactions With the National Archives and Records Administration and the Lease With the City of Little Rock, Arkansas.”
The first paragraph reads:
In 2004, the Clinton Foundation entered into a joint use, operating and transfer agreement with the National Archives and Records Administration (NARA) that expires February 29, 2101. Under the agreement, NARA agreed to operate certain areas of the facility known as the William J. Clinton Presidential Library and Museum (the Library) for the purposes of housing, preserving and making available, through historical research, exhibitions, educational programs and other activities, the presidential records and historical materials of President William Jefferson Clinton.
The second paragraph in the note explains the NARA lease permitted the accountants to exclude $36 million in construction costs from the Clinton Foundation’s financial statements:
Because the terms of the lease essentially transfer to NARA the right to use portions of the Library for a period in excess of the property’s expected economic life, the cost of construction of those areas operated by NARA, which amounted to approximately $36,000,000, have been excluded from the Foundation’s Statement of Financial Position.
The third paragraph of the note explains the land occupied by the Clinton Presidential Library is owned by the city of Little Rock and leased to the Clinton Foundation in a way that allows the exclusion of the lease’s fair value from the foundation’s audited financial statements:
The land occupied by Clinton Library is owned by the City of Little Rock, Arkansas (the City), but is leased to the Foundation under a 99 year lease for a nominal annual amount. The Foundation is responsible for maintaining those areas within 75 feet of the buildings and certain land improvements. Maintenance of the remaining land is the responsibility of the City. Because the lease with the City does not convey exclusive right to the use of this land and because it is to be operated in a manner similar to other City Parks, the Foundation does not recognize the present value of the lease’s fair value within its financial statements.
While the note first appeared in the Dec. 31, 2007, and 2006 consolidated financial statements prepared by Little Rock-based accounting firm BKD and has appeared in every Clinton Foundation financial statement since then with the exact same language, Ortel argues PWC, by repeating the statement word-for-word without examining the original basis for the note, assumes legal responsibility for it along with BKD.
Why different language in 2004 and 2005?
Ortel noticed the language of the note and the accounting entries for the Clinton Presidential Library in the consolidated financials BKD prepared for the Clinton Foundation in 2004 and 2005 were materially different than the language and accounting entries in the BKD and the PWC consolidated financial statements for 2006 and later.
“In 2006 and forward, BKD and PWC claim the $36 million donated to NARA is excluded from the Clinton Financial statements, which is preposterous,” Ortel said.
“If you go back to what the Clinton Foundation said on their original IRS application 1023 Form filed with the IRS on Dec. 23, 1997, the application clearly said what was then described as the William J. Clinton Presidential Foundation will design, construct, and initially endow a presidential depository library that upon completion will be conveyed 100 percent to NARA in perpetuity.”
Ortel noted only a portion of the Clinton Presidential Library was turned over to NARA while the Clinton Foundation IRS application had said 100 percent would be turned over. He noted there is no documentation that the material change was ever filed with the IRS, as required by law, or that the IRS approved the change.
Moreover, he said, the consolidated financial statements prepared by BKD before 2006 treated the “donation” as a 2004 program expense, Ortel explained, pointing to the following specific language contained in Footnote 9 to BKD’s 2004 audit, prepared in 2005:
Because the terms of the lease essentially transfer the right to use portions of the Library for a period in excess of what would be considered the property’s economic life, the cost of construction of those areas operated by NARA have been recorded as a program service cost on the Foundation’s Statement of Activities in the amount of $36,000,000.
Ortel argued that the “massive and unexplained treatment is highly material from a financial standpoint in that it involves ‘program expenses,’ the core element of activity in any public charity.”
He said the program expense items in the financial accounting for a charity are “critically important entries because they are core foundation expenditures.”
“Future donors and the IRS expect program expenses listed in the consolidated financial statements of a charity to be directly tied to the purposes for which the IRS granted a tax-exemption to the charity,” he said.
$36 million ‘a massive number’
Ortel pointed out that the “Independent Accountants’ Report and Financial Statements (Modified Cash Basis) for Dec. 31, 2004 and 2003,” prepared for the Clinton Foundation HIV/AIDS Initiative by BKD dated June 30, 2005, and archived on the Massachusetts Attorney General’s charities registration website, but not on the Clinton Foundation website, lists the $36 million as a non-cash expense, ‘something like depreciation that is written off on your taxes, but for which there is no depreciation check written.'”
“In 2004, the $36 million is a massive number that reduces the Clinton Foundation’s revenue by $36 million, but has no effect on the Foundation’s cash,” Ortel pointed out.
In the BKD 2003-2004 financial statement, which is not archived on the Clinton Foundation website, there is no cash flow statement presented, Ortel noted.
“But from the income statement and the balance sheet that BKD did prepare, the reconstructed cash flow statement shows there is $36 million missing in cash,” he said.
Ortel said accounting principles “would demand a 2004 cash flow statement to have been prepared and published by BKD to make sure non-cash expenses don’t disappear from financial statements of the foundation.”
“That the cash flow statement was missing was a red flag,” he said. “When the derived cash flow was reconstructed, it was apparent a $36 million theft had occurred that all subsequent consolidated financial statements covered up.
“The theft of $36 million is a serious crime,” Ortel said. “But the crime was compounded by making false claims to the federal government and further compounded by soliciting future contribution son the basis of fraudulent financial statements designed to cover up the theft.”
‘Indefensible’ Clinton accounting
Ortel argued a bedrock principle in accounting is that financial statements for an organization such as the Clinton Foundation must be prepared on a consistent basis from year to year, otherwise important trends are obscured.
“Directors who allow false, misleading and uncorrected financial statements to remain in the public domain while a tax-exempt organization is soliciting donations from the general public stand upon dangerous ground,” he said.
In 2005, Ortel pointed out, the Clintons said they treated the entire amount of the gift as an expense of $36 million, which was treated as the largest, most material program expense of the foundation at that time. But in later years, the accountants “pivot and claim this highly material expense was excluded from financial statement, without restating the financial statements.”
“From the perspective of generally accepted accounting procedures, this treatment of the $36 million is indefensible,” Ortel asserted. “How could the pre-2006 largest, most material expense of the Clinton Foundation simply disappear from post-2006 consolidated financial statements?”
Ortel also noted that the determination letter dated Jan. 29, 1998, that the IRS issued to the William J. Clinton Presidential Foundation clearly specified that any changes in the purpose of the foundation had to be submitted to the IRS in advance for consideration of the effect of the change on the foundation’s tax-exempt status.
“How did the purpose of the William J. Clinton Presidential Foundation go from donating 100 percent of the Clinton Library to NARA to turning over only a portion of the Clinton Library without securing prior approval from the IRS?” Ortel asked.
Ortel pointed out that in all of the reports submitted by the Clinton Foundation to the IRS under the penalties of perjury, there is no statement that the Clinton Foundation changed its purpose from donating to NARA all of the Clinton Library to only donating a relatively small portion.
Ortel said generally accepted accounting practices would demand the Clinton Foundation document $36 million in actual construction expenses related to the portions of the Clinton Presidential Library that have been turned over to NARA.
But no justifying document can be found in any of the audits, including the most current PricewaterhouseCoopers audit.
“For all anybody knows, the number was simply made up, out of whole cloth. Is this fair market value as opposed to actual construction cost?” he asked. “If so, where is the market study that establishes $36 million as the actual value?”
Ortel stressed that determining how and why the $36 million valuation was set should be an important part of any criminal fraud investigation.
Foundation directors not insulated
Ortel said Cheryl Saban, as one of the Clinton Foundation directors with substantial wealth, has perhaps the most to lose among the current members of the board “when government authorities ultimately perform thorough investigations of material misstatements in legally mandated financial filings.”
“Not the least of Cheryl Saban’s problems will be that tax-exempt charities are expressly barred from all political activity, and Saban may have to prove she did not join the Clinton Foundation board as part of a plan to advance Hillary Clinton’s presidential hopes,” he stressed.
Ortel pointed to the extreme measures employed by former IRS director of the tax-exempt division Lois Lerner to ensure tea party groups weren’t advancing partisan politics.
He referenced the extensive documentation of the contributions Saban and her husband have made to Hillary Clinton’s 2008 presidential campaign and again now in 2016.
National Review reported that between 2009 and 2013, when Clinton served as secretary of state, the Saban Family Foundation gave the Clinton Foundation more than $7 million and listed $30.5 million in “grants and contributions approved for future payments,” according to nonprofit records filed with the IRS.
In a television interview broadcast by Bloomberg Business July 28, 2014, Haim Saban said he was willing to contribute “as much as needed” to Clinton’s 2016 presidential campaign.
Haim Saban was widely reported to be a bundler for Hillary Clinton, raising hundreds of thousands of dollars for her losing 2008 presidential campaign.
Forbes lists Haim Saban’s net worth as in excess of $2.8 billion, ranking him No. 245 among the world’s richest people in 2015.