Back in December 2008, anticipating Hillary Clinton’s confirmation as Secretary of State, the incoming Obama administration asked that all foreign donors to the Clinton Foundation and associated entities be disclosed and state department approval be obtained for some donations. The administration signed a Memorandum of Understanding with the Clinton Foundation to this effect. The stated intention of this MoU was:

to ensure that the activities of the Foundation, however beneficial, do not create conflicts or the appearance of conflicts for Senator Clinton as Secretary of State.

Those words, “appearance of conflicts” are significant. They are part of the written assurances made to an Obama’s administration already alert to potential conflicts. It wasn’t just the administration, Congress too noted the potential for conflicts of interest. Here’s what Sen. Dick Lugar said during the confirmation hearings:

I share the president-elect's view that the activities of the Clinton Foundation and President Clinton himself should not be a barrier to Senator Clinton's service. But I also share the view implicitly recognized by the memorandum of understanding that the work of the Clinton Foundation is a unique complication that will have to be managed with great care and transparency.

The core of the problem is that foreign governments and entities may perceive the Clinton Foundation as a means to gain favor with the secretary of state. Although neither Senator Clinton nor President Clinton has a personal financial stake in the foundation, obviously its work benefits their legacy and their public service priorities. [...]

But the Clinton Foundation exists as a temptation for any foreign entity or government that believes it could curry favor through a donation. It also sets up potential perception problems with any action taken by the secretary of state in relation to foreign givers or their countries.[...]

And for the agreement [the MoU] to succeed, the parties must make the integrity of United States foreign policy their first principle of implementation.[...]

If there is a slightest doubt about the appearance that a donation might create, the foundation should not take that donation. If there are issues about how a donation should be disclosed, the issue should be resolved by disclosing the donation sooner and with as much specificity as possible.

Operational inconveniences for the foundation or a reduction in some types of donations that have been accepted in the past are small prices to pay when balanced against the serious business of United States foreign policy that affects the security of every American.[...]

Lugar’s comments are, in hindsight, prescient. They describe, in detail, the questions surrounding the Clinton Foundation as e-mail conversations with state department personnel are released. Though he’s a Republican, Lugar worked very closely with Obama and by all accounts, they developed a genuine friendship.

So the potential for conflicts of interest was anticipated during Hillary Clinton’s confirmation hearing. Various preventative measures were proposed, including the policy of disclosure and approval that ended up in the MoU. Lugar suggested one approach might be to direct the Clinton Foundation to stop accepting any foreign contributions (or some), explaining that it would be impossible for the Sec of State to recuse herself from a specific decision.

There was another, less intrusive, way to address these concerns. It would have permitted the Clinton Foundation to continue raising funds for good causes across the world, but it would have required creating strict boundaries between the Foundation and all State Department personnel. Clinton Foundation staff would have been told that they are, under no circumstances, to contact State department personnel, to put in a word to the secretary of state for any donor or “friend”. They could have been told to relay the same prohibition to all donors, or potential donors.

This unambiguous message would have ensured no “foreign government or entity” could ever perceive the foundation “as a means to gain favor with the secretary of state”. This was the road not followed.

It is clear from numerous e-mail exchanges between foundation and State department staff that such a bright line was not maintained. Foundation staff repeatedly contacted state department personnel to ask for favors on behalf of donors. Staff moved between both entities, held multiple posts and communicated about Clinton Foundation donors with business before the state department.

This is not simply a concern about decisions made during Hillary Clinton’s tenure at State. It’s about the integrity of US foreign policy and diplomacy in the long term. About “appearances” that US foreign policy can be influenced, however slightly, by contributions to an officials’ foundation.

Reuters reported this week that the Clinton Foundation’s disclosures over the years were not complete (some Foundation entities did not report donors in all years), possibly violating the terms of their agreement with the Obama administration. It also looks like we will continue to see a steady drip of e-mails keeping this issue alive right up to November.

It’s important to remember that these are self-inflicted wounds. These conflicts of interest were predicted, their significance was understood during the confirmation hearings, they could have been prevented. They were not.

Last week, Hillary made a statement on the various reports about her interaction with the foundation staff/donors:

"My work as secretary of state was not influenced by any outside forces. I made policy decisions based on what I thought was right," Clinton said. "I know there's a lot of smoke and there's no fire."

Even if we accept the first statement as true, the second should raise our eyebrows, even if only at a metaphorical level. How can you ensure “transparency” and “integrity” while enmeshed in a cloud of “smoke”? Whatever happened to avoiding the “appearance of conflicts”?

Now, this mess over the Clinton Foundation isn’t the worst example of political corruption in the recent history of our country. This is the big leagues, and the Democratic party (like all others) has always been susceptible to corruption. The expedited access that Clinton Foundation staff and donors seem to have had to the Sec of State isn’t nearly as bad as LBJ’s campaign accepting envelopes full of cash from the good folks at KBR (later absorbed into Halliburton). Nor is it akin to patronage jobs handed out at every level of government by the Tammany Hall machine.

At the same time, the Sec of State’s interaction with her family foundation cannot be held up as a shining example of propriety either. If this is a “reality based community”, we should not limit discussion to full-throated defenses of the Clintons.

Here’s an example caused by a donation, followed by a request to set up a meeting at State, and subsequent official action by the State Department:

The email exchange about Bahrain shows the Clinton Foundation’s top executive Doug Band in 2009 asking Clinton’s State Department aide Huma Abedin to set up a meeting between Clinton and Crown Prince Salman who had recently been named the deputy supreme commander of Bahrain’s armed forces. Band referred to Salman as a “good friend of ours.” Abedin told Band that Clinton had initially rejected a previous request for a meeting with Salman because “she doesn’t want to commit to anything for thurs or fri until she knows how she will feel.” Soon after, though, Abedin told Band that the State Department was now offering Salman a meeting with Clinton.

Salman has directed $32 million to a Clinton Foundation program, and the Kingdom of Bahrain has donated up to $100,000 more. As Bahrain money flowed into the Clinton Foundation, State Department documents showed that between 2010 and 2012 the Clinton-led State Department approved $630 million worth of direct commercial arms sales to Salman’s military forces in Bahrain. That was a 187 percent increase from the period 2006 to 2008, and the increase came as Bahrain was violently suppressing uprisings.

You could say supporting the Bahraini monarchy was US policy and the Clinton State department was simply following it. You would not be entirely wrong. Bahrain was not the first, and will not be the last instance where our country has supported an authoritarian regime’s violent suppression of protesters. After all, we continue to send arms to the Saudis and they are almost certainly engaged in war crimes in Yemen (including knowingly bombing hospitals). And we do have a military base or two in Bahrain to protect (the Fifth Fleet is based there).

The US supports numerous “allies” engaged in decades long repression of human rights. So yes, this is a part of a long tradition not specifically limited to Hillary Clinton or even the former Clinton administration. Should we expect “progressive” politicians to continue such policies or question them? This is an issue tailor-made to generate discontent since those on the left believe such foreign policy concerns are routinely dismissed by Democrats. If Democrats wish to acknowledge the concerns of everyone in a big tent, then we cannot simply wave off concerns about how business deals and donations from the Bahrainis or Saudis appear when juxtaposed with our support for such regimes. If we can criticize the Bush family’s various business relationships with unsavory regimes in the Middle-East, we have to do the same when Democrats receive funds from the same sources.

For some, these are critical concerns:

This story really bothers me, and not just because of the corruption. In 2011, the United States all but encouraged rank-and-file Arabs across wide swaths of the Middle East to rise up against their despotic rulers in the so-called "Arab Spring." But any support collapsed when it came to the democracy-(and-woman)-hating tyrants of the Persian Gulf, who provide America with oil and with prime real estate for our military bases. The worst case is Bahrain, whose autocratic monarchs have crushed a pro-democracy movement with tear gas and armored personnel carriers bought with an assist from Clinton's U.S. State Department. And it sure looks like the runway for that crackdown was greased with multi-million-dollar donations to the Clinton Foundation

This is not the only example of our government (or a senior government official) undercutting our loudly proclaimed commitment to universal human rights and looking the other way when an “ally” crushes dissent. Nor are the concerns concocted out of thin air. State department approvals are necessary for all foreign arms sales. Let’s stop pretending the Secretary of State’s approval was insignificant to the process.

Let’s stop pretending that the appearance of corruption is not a problem. Is every other behavior okay as long as there is no exchange of envelopes filled with unmarked large bills? How did we manage to lower our expectations for public officials so much?

This particular incident resonates with those who are alert to politicians willing to adopt hawkish foreign policy to achieve domestic policy goals. Should we accept mass casualties among Vietnamese civilians as the price to get Medicare, Medicaid and less discriminatory immigration laws? That painful history (and it’s far from the only example) is what raises hackles when we’re dealing with armed conflict or the sale of armaments.

During the confirmation hearings, Hillary testified that:

“However, the foundation and the president-elect decided to go beyond what the law and the ethics rules call for to address even the appearance of conflict ”

How exactly is the foundation avoiding “the appearance of conflict” if senior foundation officials are contacting the state department to arrange meetings for donors with business to transact with state?

Donors did in fact end up with the impression the foundation could provide them access to the state department. That’s why there are numerous e-mails from foundation personnel putting in a word for a friend of the foundation. Did the foundation staff magically learn the donor in question had business before the state department or was interested in meeting with someone there? If the donor asked for such help, why weren’t foundation personnel instructed to say point blank “these are US government officials, we are not a lobbying arm, we are an independent charity and cannot advocate for you at the state department”?

These are not febrile, unwarranted concerns. Sen. Lugar was right to point out that the Clintons do derive benefits from the Foundation. It employed numerous people who have worked for the Clintons in a political capacity. It provided a platform for the Clintons to maintain contact with, and permit fundraisers to develop relationships with high-dollar donors capable of making both charitable and political donations.

But, you might say, the Clinton Foundation is a charity! What personal benefit do the Clintons derive from it that would even make it worthy of scrutiny, where’s the conflict of interest? How can it be a “conflict of interest” to provide medication to the poor? How can it be a conflict of interest to help efforts to combat climate change?

Look, if Bill Clinton had entered the private sector, he would have led a large team and some of that team too would have ended up supporting a Hillary Clinton campaign. There would have been similar concerns about conflict of interests. The serious nature of these concerns is driving the pledge that Bill Clinton would leave the foundation if Hillary wins the election. Yet even that doesn’t solve all the conflicts of interest. We laugh and deride Trump’s statements that if elected his children would handle his businesses. How can we call that inadequate when the Clintons suggest Chelsea will continue as a Clinton Foundation board member?

Here’s an example of how the Clinton Foundation might be viewed by someone wearing skeptical lenses.

It is not an extraordinary claim to say the Clintons realize various political and organizational benefits from the Foundation’s operations and enormous budget. The Clintons are good politicians, looking for an edge, and the Foundation provides them with many. For example, the Foundation and the resources the Clintons could quickly spin out of it for a political campaign almost certainly dissuaded other senior Democrats from running in the primary. The Clintons had been raising hundreds of millions each year from major liberal donors for their charitable foundation. This led many to assume they would be leagues ahead when it came to locking up the same donors as political contributors.

It is not credible to claim that the Foundation is entirely separate from the Clintons’ political ambitions. It was clear from the confirmation hearing that the Foundation would become a political football. There was an opportunity for the Clintons together, or Hillary Clinton alone, to set up bright lines and avoid even the appearance of misconduct. That opportunity was not taken.

If you were to indulge various theories about Trump’s business deals with Russians close to Putin, while at the same time insisting that donations from Russians and Saudis to the Clinton Foundation are entirely above board, you would look rather foolish. Yet we see this daily, alongside its mirror image depending on party allegiance.

If you’re still somehow convinced the Clinton Foundation’s operations don’t even merit a second thought, take a look at the guidance the Department of Justice provides on the Foreign and Corrupt Practices Act. This is the legislation that intends to prohibit companies with operations in the US from bribing foreign officials.

Five Questions to Consider When Making Charitable Payments in a Foreign Country:

1. What is the purpose of the payment?
2. Is the payment consistent with the company’s internal guidelines on charitable giving?
3. Is the payment at the request of a foreign official?
4. Is a foreign official associated with the charity and, if so, can the foreign official make decisions regarding your business in that country?
5. Is the payment conditioned upon receiving business or other benefits?

If the Clinton Foundation were a foreign charity, question 4 would apply. From the e-mails exchanged with some donors, it’s clear they expected a contribution to the Clinton Foundation to facilitate expedited access to Secretary Clinton. Or at the very least, a “word” from Foundation personnel seeking to facilitate that access. Depending on your interpretation, questions 1, 3 and 5 are in play as well.

If you were making such a donation to a official’s foundation in a foreign country, your FCPA advisers would ask you pointed questions on whether this contribution was a “facilitation payment”. The additional scrutiny would not depend on the value of the charity’s operations or mission, solely the official’s association with the charity.

Over at Vox, there was a discussion about the Clinton Foundation in the context of money in politics:

So if there was no quid pro quo, does that mean Clinton's conduct was aboveboard? I interviewed four experts this week — and their answer was that the Clinton really did risk dramatically escalating an already serious problem with money’s influence in politics [...]

Again, you don’t have to think Clinton is corrupt to think she was probably more likely to meet with people in her family’s orbit. And you don’t have to be a conspiracy theorist to think it’d be easier to be in her orbit by giving buckets of cash to her family’s charity.[...]

"What's so troubling is that these revelations suggest that if you want to see the secretary of state, it helps to make a large donation — that’s the perception this gives," says Larry Noble, general counsel for the Campaign Legal Center.

Let’s not kid ourselves. In the unlikely event Trump wins, he is likely to openly sell access to his administration and revel in it as a sign of “deal-making” prowess. Buy a $10 million apartment at a new Trump development and get invited to the White House. Anyone who signs a ten floor lease at asking price gets to stay overnight at the White House. An investor who gives Trump Inc. an eight-figure management contract gets to play golf with President Trump for a day. None of this would be shocking, numerous presidents have rewarded donors with access to White House social events and overnight stays (this includes both Bushes, Bill Clinton and even Jimmy Carter in some respects).

This does not mean you should give up and lower our expectations. If you value democracy, you should care. Because even the appearance of corruption is toxic to democracy. Because it undermines confidence in the process. It drives someone like Colin Kaepernick to say:

You have Donald Trump, who is openly racist. We have a presidential candidate (Clinton) who has deleted emails and done things illegally and is a presidential candidate. That doesn’t make sense to me. If that was any other person, you’d be in prison. So what is this country really standing for?

People end up believing that there is a separate set of rules for those with power, and those in a position to access them. It undermines what used to be called the public trust.

If we want our government to represent all of us, we have to continue demanding transparency and control over conflicts of interest. And we have to demand that of Democrats and Republicans. If anything, we should hold our own party to a higher standard.