Political pundits are abuzz about revelations that seven foreign countries made substantial contributions to the Clinton Foundation while Hillary Clinton was secretary of state, including one by Algeria that violated a 2008 ethics memorandum some legal experts now say was little more than window-dressing.
Algerian officials gave the Clinton Foundation $500,000 in 2013 to aid relief efforts following the massive earthquake that devastated Haiti. Foundation officials conceded to the Washington Post earlier this week that the Algerian contribution should have been reviewed to see if it violated the memo but wasn’t due to the rush to get help to Haiti.
The other six foreign contributions while Clinton was at Foggy Bottom came from Oman, Qatar, the United Arab Emirates, Australia, Saudi Arabia, and Norway, with amounts ranging from $1 million to more than $25 million. These six contributions were permitted under exceptions contained in the ethics memo.
The memo came after then-President-elect Obama announced his intention to nominate Clinton to be the nation’s top diplomat. The document was signed by Bruce Lindsey, who was then the foundation’s chief executive officer, and Valerie Jarrett, representing Obama.
The document established a review process by which the foundation agreed to submit proposed contributions from foreign countries, companies and individuals for review by a State Department ethics official.
Such a review was meant to allay concerns about conflicts of interest or their appearance between the foundation’s worldwide list of supporters, and the interests of the U.S. government entrusted to Secretary Clinton. Former President Clinton similarly agreed to allow the department to review his many proposed speeches before foreign audiences and interests.
Seven years later, however, a wave of critical stories in the Post, New York Times, Wall Street Journal and the Washington Examiner have shone a spotlight on the vast network of connections the former president and former secretary/likely 2016 Democratic presidential nominee have used since 2001 to raise more than $2 billion for the foundation bearing their name.
Besides dozens of foreign countries, the foundation’s donors include hundreds of corporations here in the U.S. and around the globe, and legions of the world’s wealthiest individuals. An Examiner analysis found that the 140 entities that gave $54 million in 2014 also spent $350 million through the first three quarters of that year lobbying the federal government.
Foreign governments also have interests that lead them to lobby the government here, and since U.S. laws put no limit on how much foreign entities can give to the foundation, the potential is clear for an endless succession of conflicts of interest or their appearance should the former president’s wife become his next successor in the Oval Office.
That is also why the 2008 memo is suddenly getting renewed attention. The problem lies with the memo’s failure to provide penalties for its violation.
For Cleta Mitchell, a noted Washington attorney who is often seen on the legal system’s front lines defending conservative principles and personalities, the absence of penalties renders the memo useless as a tool for preventing conflicts of interest.
“It is a Memorandum of Understanding, which is different from an enforceable contract, which this is not, it’s just a set of voluntary protocols,” Mitchell said. “It is all window dressing, never meant to be enforceable.”
Mitchell’s critique is not an isolated one.
“This is a very difficult situation from a legal vantage point,” said Richard Painter, a University of Minnesota law professor and a fellow at Harvard University’s Safra Center for Ethics after reviewing the memo.
“Secretary Clinton was required to step down from all positions with the foundation in order to be secretary of state. As such she had no control over the foundation, so there would be no way she could agree in her ethics agreement to bind the foundation,” Painter said.
“Separately, it would be difficult if not impossible for the State Department to contract with the foundation to bind the foundation not to accept foreign money. Such a contract would lack legal consideration (something given by the State Department in return for this promise) and would probably be unenforceable.”
Painter further noted that President Clinton continued in his highly visible role in the foundation while his wife was at the State Department and it’s unlikely any major contributions were made during those years that lacked his approval.
“It is hard to imagine him doing anything (with respect to the foundation, that is, not his personal life) without her consent,” Painter said.
All that would be left to discourage violations of the memo would be “the court of public opinion,” he said.
The New Yorker’s Amy Davidson gave voice Thursday to the heretofore mostly suppressed fears among many Democrats that the Clintons globe-trotting in pursuit of big bucks for their foundation could prove disastrous for their party’s prospects in the next election.
Davidson concluded a piece entitled “What the Clinton Foundation is costing Hillary” with this pointed conclusion:
“It is past the time for it to stop. The out-of-government, non-candidate fiction has, at this point, run too thin, with a campaign staff being more or less openly mustered. There is surely a way for the Clintons to do good without compromising themselves and the Democrats’ 2016 prospects.”
Mark Tapscott is executive editor of the Washington Examiner.
