When Hillary Clinton first ran for president eight years ago, it was not hard to anticipate problems inherent in the Clintons’ wielding political power while also accepting foreign contributions to the Clinton Foundation. “If Hillary became president,” one prominent Democrat observed, “I think there would be all these questions about whether people would try to win favor with her by giving money” to the Clinton Foundation. Even assuming that such donations wouldn’t succeed in actually buying political favors, the Democrat continued, “there are legitimate questions.”
The “prominent Democrat” who made those comments to the Economist? Bill Clinton.
Eight years later we can credit his foresight, though not his forbearance. News reports arising from Peter Schweizer’s new book, Clinton Cash, have raised significant questions about how the former president’s pursuit and acceptance of millions of dollars in foreign contributions to the Clinton Foundation—from, say, Russians eager to increase their control of the U.S. uranium supply—could have affected the judgment and credibility of his wife, the secretary of state, whose office has a hand in reviewing such asset acquisitions.
“Whether the donations played any role in the approval of the uranium deal is unknown,” reported the New York Times. “But the episode underscores the special ethical challenges presented by the Clinton Foundation,” as Mrs. Clinton “helped steer American foreign policy as secretary of state, presiding over decisions with the potential to benefit the foundation’s donors.”
These were precisely the problems that Republican senators highlighted at Clinton’s confirmation hearing, where the conflicts of interest that might be raised by the Clinton Foundation were a prominent theme. “The only certain way to eliminate this risk going forward,” warned Sen. Richard Lugar, “is for the Clinton Foundation to forswear new foreign contributions when Senator Clinton becomes secretary of state.” Evidently Clinton felt otherwise.
The new reports seem to vindicate the senators’ concerns, but they do more than that. They vindicate the deep concerns voiced by the Constitution’s Framers about the need to protect republican government from foreign influence—the very concerns that led them to write and ratify the “foreign emoluments clause.”
Article I, Section 9, of the Constitution provides that “no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” While Bill Clinton was president, his own Office of Legal Counsel once explained in an opinion letter, “those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty. . . . That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government.” The emoluments clause was passed unanimously by the Constitutional Convention, based on the young nation’s own recent diplomatic history—namely, gifts given by foreign kings to Ambassador Benjamin Franklin and other diplomats, which they promptly reported to Congress.
The Founders’ key insight was not that foreign corruption is dangerous in general, but that it is especially dangerous in the context of republican government. “One of the weak sides of republics,” wrote Alexander Hamilton in Federalist 22, “is that they afford too easy an inlet to foreign corruption.” When the government is staffed by ordinary persons “elevated from the mass of the community,” large gifts from foreign interests may “overbalance the obligations of duty.” The prominent legal scholar St. George Tucker added in his 1803 version of Blackstone’s Commentaries that republican governments’ tendency toward thrift would have the perverse effect of making foreign corruption even more dangerous: “The economy which ought to prevail in republican governments, with respects to salaries and other emoluments of office, might encourage the offer of presents from abroad, if the constitution and laws did not reprobate their acceptance.”
Two centuries later, the American public remains rightly wary of the dangers of foreign influence in domestic governance and politics, even when the emoluments clause’s specific prohibition has not been violated. Such concerns were precisely the target of President Obama’s accusation, at the State of the Union address, that the Supreme Court’s decision in Citizens United would “open the floodgates” to a wave of foreign money in U.S. elections. His caricature of the Court’s decision was baseless, but his broader warning against foreign influence was not.
Furthermore, the problem is not simply that U.S. officials might make bad decisions because of foreign gifts. Rather, it is that U.S. officials must not put themselves in such compromised positions to begin with, regardless of whether they succeed in resisting the temptations to which they have exposed themselves. Again, to quote the Clinton Justice Department, “those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty.” It is no answer for officials to tell American voters, Don’t ask whether my loyalty was compromised, so long as I made the right decisions.
This broader obligation is what spurs Americans to demand that politicians avoid not just corruption per se, but also the “appearance of corruption.” The “appearance of corruption” standard is a notoriously fuzzy one, which makes it ill-suited for use as a specific, enforceable legal standard. But as a broader political principle, it is crucial.
Hillary Clinton knows this: In one of her debates with Rep. Rick Lazio in the 2000 Senate race, she referred to allegations that Lazio had accepted significant campaign contributions from the housing industry, which was subject to the jurisdiction of a House committee on which he served. When Lazio protested that the contributions had not affected his judgment, the soon-to-be-elected Clinton replied, “at least there is an appearance that he did several things” in favor of the industry.
The allegations raised by the Times and by Schweizer may spur some in the press to turn the political and ethical story into a strictly legal one, with reporters tempted to ask only, “Did Secretary Clinton break any laws?” They may well do so at the behest of Clinton’s own defenders, who will likely soon begin challenging her critics to show specifically which laws have been broken, based on specific evidence. (Such a challenge will be hard to meet, especially after Clinton’s destruction of thousands of emails from her years at the State Department.) They will likely try to turn a broad political and ethical debate into a narrow, legalistic one, and to draw lines between “the Foundation” and the Clintons, between Mr. and Mrs. Clinton, and between specific contributions and specific government actions. Perhaps we will find ourselves, once again, arguing over “what the meaning of ‘is’ is.”
Indeed, the Clintons’ response to the impeachment crisis was the epitome of such a strategy. Their fortunes turned when the debates moved from the House’s political inquiry into the Senate’s legalistic one, a moment captured well by Peter Baker in The Breach. “Meeting a few days after the impeachment vote, [Gregory] Craig and the other lawyers decided to recalibrate their strategy . . . put[ting] on a real factual defense for the first time. They would not simply argue that Alexander Hamilton and James Madison would never have wanted a president thrown out of office for this type of conduct; they would talk about the evidence and try to make the case that the prosecutors had not established proof that Clinton did what they said he did.”
Now, as then, the Clintons and their supporters would like nothing more than to repeat the feat of turning the tables on their accusers by shifting from a debate over first principles to one of legalistic litigation. But in the political arena, the burden of proof is not on her critics to prove that she is guilty of violating federal laws or the Constitution. In the political arena, the burden is on Hillary to prove to her country that she is fit to return to the White House, with her husband and his foreign entanglements in tow.
In that respect, these latest revelations and others may well raise—as the lawyers say—“reasonable doubts.”
Adam J. White is an adjunct fellow at the Manhattan Institute and a lawyer in Washington.
