Application of the Emoluments Clause to a Member of the President's Council on Bioethics ( 2005 )

Application of the Emoluments Clause to a Member
of the President’s Council on Bioethics
A member of the President’s Council on Bioethics does not hold an “Office of Profit or Trust” within
the meaning of the Emoluments Clause of the Constitution.
March 9, 2005
MEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT
You have asked whether a member of the President’s Council on Bioethics
holds an “Office of Profit or Trust” under the Emoluments Clause of the Constitu-
tion, Article I, Section 9, Clause 8. As we previously advised you, we conclude
that he does not. This memorandum memorializes and expands upon our earlier
advice.
I.
On November 28, 2001, the President issued Executive Order 13237, 3 C.F.R.
821 (2001 Comp.), creating the President’s Council on Bioethics (the “Council” or
“Bioethics Council”). The purpose of the Bioethics Council is to “advise the
President on bioethical issues that may emerge as a consequence of advances in
biomedical science and technology.” Id. § 2(a). The Council is composed of 18
members “appointed by the President from among individuals who are not officers
or employees of the Federal Government.” Id. § 3(a). Each member serves a two-
year “term of office,” subject to re-appointment. Id. § 3(c). Members of the
Council may be compensated “to the extent permitted by Federal law” and “may
be allowed travel expenses, including per diem in lieu of subsistence, as author-
ized by law for persons serving intermittently in Government service (5 U.S.C.
5701–5707), to the extent funds are available,” id. § 4(d); pursuant to these
provisions, we understand that each member receives $250 in compensation per
day of work in addition to travel expenses. Although they are not required to do so
by the Executive Order, we understand that members of the Council take an oath
of office. We also understand that members of the Council do not have access to
classified information.
The Council serves in a purely “advisory role.” Id. § 2(a). It may, for example,
“conduct inquiries, hold hearings, and establish subcommittees,” id. § 4(b), and
“conduct analyses and develop reports or other materials,” id., but it is “not . . .
responsible for the review and approval of specific projects or for devising and
overseeing regulations for specific government agencies,” id. § 2(d). Nor does the
Executive Order give the Council subpoena authority or the authority to imple-
ment any of its recommendations, whether at the President’s direction or other-
wise. In short, although the Council may offer its views to the President, it is
55
Opinions of the Office of Legal Counsel in Volume 29
without power to implement those views or execute any other governmental
authority.
The question before us is whether membership on the Council—which, as
explained, is a purely advisory position that carries with it no power to execute any
governmental authority, significant or otherwise, and has no access to classified
information—is “any Office of Profit or Trust under [the United States]” within
the meaning of the Emoluments Clause. U.S. Const. art. I, § 9, cl. 8. We conclude
that it is not.
II.
The Emoluments Clause of the Constitution provides in pertinent part that
no Person holding any Office of Profit or Trust under [the United
States], shall, without the Consent of the Congress, accept of any
present, Emolument, Office, or Title, of any kind whatever, from any
King, Prince, or foreign State.
U.S. Const. art. I, § 9, cl. 8 (emphasis added). 1 We conclude that membership on
the Council is not “any Office of Profit or Trust under [the United States]” within
the meaning of the Emoluments Clause. We first conclude that in order to qualify
as an “Office of Profit or Trust under [the United States],” a position must, first
and foremost, be an “Office under the United States.” Next, we conclude that it is
well-established that a purely advisory position is not an “Office under the United
States” and, hence, not an “Office of Profit or Trust under [the United States].”
Because a purely advisory position is not an “Office,” we need not precisely
define whether or to what extent the words “of Profit or Trust” narrow the
category of offices governed by the Emoluments Clause.
A.
In order to hold an “Office of Profit or Trust under [the United States]” within
the meaning of the Emoluments Clause, an individual must hold an “Office . . .
under [the United States].” This conclusion follows from the text of the Emolu-
ments Clause. It is further confirmed by the ratification history of the Clause,
which is admittedly limited, and by its early applications. Finally, our conclusion
is confirmed by every judicial decision that has addressed the issue.
The text of the Emoluments Clause suggests that an “Office of Profit or Trust
under [the United States]” must be an “Office under the United States.” As
1
In full, Article I, Section 9, Clause 8 states: “No Title of Nobility shall be granted by the United
States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of
the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King,
Prince, or foreign State.”
56
Application of Emoluments Clause to Member of President’s Council on Bioethics
discussed below, to the extent that the phrase “of Profit or Trust” is relevant, it
may serve to narrow an “Office . . . under [the United States]” to those that are “of
Profit or Trust,” or an “Office of Profit or Trust” may be synonymous with an
“Office . . . under [the United States],” but it is clear that the words “of Profit or
Trust” do not expand coverage of the Emoluments Clause beyond what would
otherwise qualify as an “Office . . . under [the United States].” This conclusion is
apparent first and foremost by the phrase “Office of Profit or Trust under [the
United States]” itself, which by its terms suggests that an office of profit or trust is
necessarily a type of “Office . . . under [the United States]”—either one of “Profit”
or one of “Trust.” It is also confirmed by the remainder of the Emoluments Clause.
In particular, the Emoluments Clause uses the term “Office” twice: first, in its
reference to “any Office of Profit or Trust under [the United States],” and second,
in its reference to “any present, Emolument, Office, or Title, of any kind whatev-
er.” The second reference—to “any . . . Office . . . of any kind whatever”—
suggests that the first reference—to “any Office of Profit or Trust under [the
United States]”—is narrower, not broader, than the second. Taken as a whole,
then, the text of the Emoluments Clause suggests that an “Office of Profit or Trust
under [the United States]” must, at a minimum, be an “Office under the United
States.” This conclusion is confirmed by the ratification history and early applica-
tions of the Emoluments Clause as well as relevant case law.
That the phrase “Office of Profit or Trust under [the United States]” is meant to
be no more expansive than the phrase “Office under the United States” is con-
firmed by the limited discussion by the Framers and ratifiers of the Constitution as
to the original understanding of the Emoluments Clause. This limited discussion
reflects the assumption that the phrase “Office of Profit or Trust” was understood
to be synonymous with the term “Office,” with no particular emphasis placed on
the additional words “of Profit or Trust.” Governor Randolph, for example, who
had attended the Philadelphia convention, explained to the Virginia ratifying
convention that the Emoluments Clause
restrains any persons in office from accepting of any present or
emolument, title or office, from any foreign prince or state. This re-
striction is provided to prevent corruption. All men have a natural
inherent right of receiving emoluments from any one, unless they be
restrained by the regulations of the community. An accident which
actually happened, operated in producing the restriction. A box was
presented to our ambassador by the king of our allies. It was thought
proper, in order to exclude corruption and foreign influence, to pro-
hibit any one in office from receiving or holding any emoluments
from foreign states. I believe, that if at that moment, when we were
in harmony with the King of France, we had supposed that he was
corrupting our ambassador, it might have disturbed that confidence,
57
Opinions of the Office of Legal Counsel in Volume 29
and diminished that mutual friendship, which contributed to carry us
through the war.
3 The Records of the Federal Convention of 1787, at 327 (Max Farrand ed., rev.
ed. 1966) (emphases added) (footnote omitted) (“Records”). Likewise, according
to Madison’s notes, the Emoluments Clause was proposed at the convention by
Charles Pinckney, who “urged the necessity of preserving foreign Ministers &
other officers of the U.S. independent of external influence and moved to insert
[the Emoluments Clause].” 2 Records at 389 (emphasis added). 2 These two state-
ments are the only contemporaneous explanations of the Emoluments Clause that
we have discovered, and both reflect an understanding that it encompasses public
“offices” generally.
The early applications of the Emoluments Clause likewise reflect the assump-
tion that an “Office of Profit or Trust” is synonymous with the term “Office under
the United States.” The Fifth Congress, for example, was the first to face an issue
involving the Emoluments Clause when, in 1798, Thomas Pinckney asked Con-
gress for permission to retain small presents he received from the Kings of Great
Britain and Spain upon his departure from Europe after serving as Ambassador to
those countries. See 8 Annals of Cong. 1582 (1798); David. P. Currie, The
Constitution in Congress: The Federalist Period, 1789–1801, at 281 (1997).
Congress refused to give permission. See 7 Annals of Cong. 553 (Senate granting
consent); 8 id. at 1593 (House refusing consent). In the debate that ensued, the
participants seemed to assume that the term “Office of Profit or Trust” was
synonymous with “officer of the United States” (and further, that the Emoluments
Clause was aimed primarily at ambassadors and foreign ministers). The statement
of Representative Bayard is illustrative. He observed with respect to an identical
provision found in the Articles of Confederation 3:
2
According to Madison’s notes, the Clause was proposed by “Mr. Pinckney.” Madison’s custom
was to refer to Charles Pinckney as “Mr. Pinckney” and to refer to Charles Cotesworth Pinckney
(Charles Pinckney’s cousin and fellow delegate from South Carolina) as “Genl. Pinckney,” as Charles
Cotesworth Pinckney completed his Revolutionary War service as a brevet brigadier general. Compare,
e.g., id. (statement of “Mr. Pinckney”), with 2 id. at 373 (statement of “Genl. Pinckney”).
3
Article VI of the Articles of Confederation provided: “[N]or shall any person holding any office of
profit or trust under the United States, or any of them, accept any present, emolument, office or title of
any kind whatever from any king, prince or foreign State.” Articles of Confederation art. VI, 1 Stat. 5(1778) (emphasis added). An earlier draft of the Articles contained broader language that would have
prohibited “any Servant or Servants of the United States” from accepting any such “Present,
Emolument, Office, or Title.” Articles of Confederation art. IV (July 12, 1776 draft), in 5 Journals of
the Continental Congress 547 (1904–37) (emphasis added). By substituting the phrase “any person
holding an office of profit or trust under the United States” for the phrase “any Servant or Servants of
the United States,” the drafters may have intended to narrow the scope of the clause to a particular type
of government servant, which is consistent with our conclusion. Cf. Articles of Confederation art. IV
(Aug. 20, 1776 draft), in 5 Journals of the Continental Congress 675 (noting this change, without
explanation). We have found no additional drafting history or practice regarding the parallel phrase in
the Articles of Confederation that would further illuminate the question before us.
58
Application of Emoluments Clause to Member of President’s Council on Bioethics
Under the old articles of Confederation, a like provision was in be-
ing, only that the receipt of presents by our Ministers was positively
forbidden, without any exception about leave of Congress; but their
being allowed to be received under the present Government, by the
consent of Congress, shows that they might be received in certain
cases. He had indeed, been informed that, notwithstanding the prohi-
bition under the former Constitution, presents were frequently re-
ceived by Ministers; for, though persons holding offices were forbid-
den to receive presents, the moment their office ceased, and they
became private individuals, they were no longer prohibited from re-
ceiving any presents which might be offered to them. Under these
circumstances he thought the resolution ought to be agreed to.
8 Annals of Cong. 1583–84 (emphases added).
Likewise, in 1817, Secretary of State John Quincy Adams issued instructions to
the United States ambassador to England forbidding U.S. foreign ministers from
accepting gifts from a foreign government:
The acceptance of such presents by ministers of the United States is
expressly prohibited by the constitution; and even if it were not,
while the United States have not adopted the custom of making such
presents to the diplomatic agents of foreign Powers, it can scarcely
be consistent with the delicacy and reciprocity of intercourse be-
tween them, for the ministers of the United States to receive such fa-
vors from foreign Princes, as the ministers of those Princes never can
receive from this Government in return. The usage, exceptionable in
itself, can be tolerated only by its reciprocity. It is expected by the
President, that every offer of such present which may, in future, be
made to any public minister or other officer of this Government,
abroad, will be respectfully, but decisively declined.
H.R. Rep. No. 23-302, at 3 (1834) (reprinting Adams’s instructions) (second
emphasis added). On one occasion in 1834 when these instructions were not
followed, President Jackson asked Congress to consent to a particular gift.
President Jackson noted:
I deem it proper on this occasion to invite the attention of Congress
to the presents which have heretofore been made to our public offi-
cers, and which have been deposited under the orders of the Gov-
ernment in the Department of State.
Letter to the Senate and House of Representatives (Jan. 6, 1834), in 3 A Compila-
tion of the Messages and Papers of the Presidents 1256, 1256 (James D. Richard-
son ed., 1897) (emphasis added). He then explained:
59
Opinions of the Office of Legal Counsel in Volume 29
The provision of the Constitution which forbids any officer, without
the consent of Congress, to accept any present from any foreign
power may be considered as having been satisfied by the surrender
of the articles to the Government, and they might now be disposed of
by Congress to those for whom they were originally intended, or to
their heirs, with obvious propriety in both cases, and in the latter
would be received as grateful memorials of the surrender of the pres-
ent.
Id. at 38 (emphasis added).
Finally, the judicial decisions addressing the meaning of the phrase “office of
profit or trust,” mostly state court cases, and leading treatises, all state or assume
that an “office of profit or trust” must be a public “office.” See, e.g., Shepherd v.
Commonwealth, 1 Serg. & Rawle 1, 9 (Pa. 1814) (a “commissioner of the
Commonwealth” did not hold an “office of profit under th[e] Commonwealth”
because he did not hold an “office”); Opinion of the Justices, 3 Me. (Greenl.) 481,
481–82 (1822) (an “agent[] for the preservation of timber on the public lands” did
not hold an “office of profit under th[e] State” because he did not occupy an
“office” of any sort); Commonwealth ex rel. Bache v. Binns, 17 Serg. & Rawle
219, 220 (Pa. 1828) (a printer selected by the U.S. Secretary of State to print
congressional reports did not hold an “office of profit . . . or trust, under the
government of the United States” because the position of printer was not an
“office”); Shelby v. Alcorn, 36 Miss. 273, 290 (1858) (a levee commissioner held a
“civil office of profit under th[e] State” because he occupied a “civil office”
“under the State”); In re Corliss, 11 R.I. 638, 641 (1876) (commissioners on the
U.S. Centennial Commission held an “office of trust” because “they are, properly
speaking, officers, and . . . the places which they hold are offices”); State ex rel.
Gilson v. Monahan, 84 P. 130, 133 (Kan. 1905) (the director of a drainage district
did not hold an “office of public trust” because he did not hold a “public office”;
“[t]he words ‘office of public trust’” in the Kansas Constitution “are equivalent to
‘public office’”); Kingston Assocs., Inc. v. LaGuardia, 156 Misc. 116, 118–19,
121 (N.Y. Sup. Ct. 1935) (an advisory position was not a “civil office of honor,
trust, or emolument under . . . the United States” because it lacked an “indispensa-
ble attribute of public office”); Floyd R. Mechem, A Treatise on the Law of Public
Offices and Officers § 13 (1890) (“Law of Public Offices”) (defining an “Office of
Profit” as a type of “office”); id. § 16 (same for “Office of Trust”); 3 Joseph Story,
Commentaries on the Constitution §§ 1345–46 (1833; reprint 1991) (“[T]he
[Emoluments Clause] is highly important, as it puts it out of the power of any
officer of the government to wear borrowed honours, which shall enhance his
supposed importance abroad by a titular dignity at home.”) (emphasis added); 1 St.
George Tucker, Blackstone’s Commentaries 295–96 & n.* (1803; reprint 1996)
(“Tucker’s Blackstone”) (“In the reign of Charles the second of England, that
prince, and almost all his officers of state were either actual pensioners of the court
60
Application of Emoluments Clause to Member of President’s Council on Bioethics
of France, or supposed to be under its influence, directly, or indirectly, from that
cause. The reign of that monarch has been, accordingly, proverbially disgraceful to
his memory. 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 ac-
ceptance. Congress, with great propriety, refused their assent to one of their
ministers to a foreign court, accepting, what was called the usual presents, upon
taking his leave: a precedent which we may reasonably hope will be remembered
by all future ministers, and ensure a proper respect to this clause of the constitution
[the Emoluments Clause], which on a former occasion is said to have been
overlooked.”); see also Oath of Clerks in the Executive Departments, 12 Op. Att’y
Gen. 521, 521–22 (1868) (the phrase “office of honor or profit” in the Act of July
2, 1862, ch. 128, 12 Stat. 502, includes only those who “are within the legal
designation of officers”). Indeed, we are aware of no judicial decision that has
even suggested that a government position that fails to qualify as a public “office”
could nevertheless qualify as an “office of profit or trust.”
Because a position must qualify as a public “office” in order to constitute an
“Office of Profit or Trust,” it is unnecessary for us to resolve definitively whether
and to what extent the phrase “of Profit or Trust” narrows the category of public
offices that are governed by the Emoluments Clause. Nevertheless, a few general
observations may be warranted, as they confirm that the phrase does not expand
the Emoluments Clause beyond public “offices” generally.
That phrase seems to be a term that had a technical significance at English
common law. “Offices of profit” in England were offices to which a salary
attached and in which the holder had a proprietary interest. As such, these offices
were heritable, could be executed through hired deputies, and, in some cases, sold.
See J.J.S. Wharton, Wharton’s Law Lexicon 712 (14th ed. 1938) (defining “an
office or place of profit under the Crown” as “an office held direct from the crown
which nominally carries a salary”); Giles Jacob, A New Law Dictionary, tit. Office
(9th ed. 1772) (describing an “office[] of profit” as a type of “office” that has “fee
or profit appurtenant to it,” and explaining that “an assise lay at Common law for
an . . . office of profit, [but] for an office of charge and no profit, an assise does
not lie”); see also 2 William Blackstone, Commentaries *36 (describing “offices”
as “incorporeal hereditaments”); 1 William Holdsworth, A History of English Law
248 (7th ed. 1956) (noting the introduction of the proprietary concept of offices
into the colonies).
“Offices of trust,” by contrast, were offices that, because they required “the
exercise of discretion, judgment, experience and skill,” Law of Public Offices § 16,
were not heritable and could not be deputized or sold. See 2 Stewart Rapalje &
Robert L. Lawrence, A Dictionary of American and English Law 895 (1883)
(“Public offices are either offices of trust, which cannot be performed by depu-
ty . . . , or ministerial offices, which may be performed by deputy.”); 2 T. Cun-
61
Opinions of the Office of Legal Counsel in Volume 29
ningham, A New and Complete Law Dictionary, tit. Office (London, 2d ed. 1771)
(discussing the prohibition against selling “offices of trust”); 2 Blackstone,
Commentaries at *36–37 (explaining that an “office[] of public trust cannot be
granted for a term of years,” presumably because it might be inherited during the
term by someone incompetent to perform it, “but ministerial offices may be so
granted; for those may be executed by deputy” should the holder be incompetent
to perform it). The English tradition of heritable offices that could be sold or
executed entirely by hired deputies was rejected in this country after the Revolu-
tion. See, e.g., Vt. Const. of 1777, ch. II, § 33, reprinted in 6 Francis Newton
Thorpe, The Federal and State Constitutions, Colonial Charters, and Other
Organic Laws 3747 (1909; reprint 1993) (“[T]here can be no necessity for, nor use
in, establishing offices of profit, the usual effect of which are dependence and
servility, unbecoming freemen, in the possessor or expectants.”). Yet, the phrase
“of profit or trust”—which, given the English tradition, had greater significance at
the time—was incorporated into the emoluments clause contained in the Articles
of Confederation, see Articles of Confederation art. VI, 1 Stat. 5 (1778), and, by
virtue thereof, was later incorporated into the Constitution’s Emoluments Clause,
among other laws.
In other words, as later American sources confirm, to the extent that the phrase
“of Profit or Trust” adds to the meaning of the term “Office,” it narrows it, with
“Profit” referring to offices for which the officeholder is paid, and “Trust” to
offices the duties of which are particularly important. See Corliss, 11 R.I. at 642(concluding that a position was not an “office of profit” because the holder of the
position received no compensation, but that it was an “office of trust” because the
holder “was intrusted with a large supervisory and regulative control of the
property”); Town of Meredith v. Ladd, 2 N.H. 517, 519 (1823) (“[T]he office of
constable is an office of trust [because] many important duties are devolved upon
it, bonds are executed for fidelity, and in some places the income from it is very
considerable.”); Shepherd, 1 Serg. & Rawle at 9 (the position held by a state
commissioner was not an office “of profit” “because he did not receive a cent as
commissioner”). See also Law of Public Offices §§ 13, 16 (defining an “Office of
Profit” as “[a]n office to which salary, compensation or fees are attached,” and an
“Office of Trust” as “[a]n office whose duties and functions require the exercise of
discretion, judgment, experience and skill”). Cf. Doty v. State, 6 Blakf. 529, 530
(Ind. 1843) (rejecting distinction between office of “trust” and office of “profit” as
“merely verbal,” noting that “[a]ll offices of profit are necessarily offices of trust;
and must, therefore be included in those of the latter description”). 4
4
The Constitution also references an “Office of honor,” U.S. Const. art. I, § 3, cl. 7 (“Judgment in
Cases of Impeachment shall not extend further than to removal from Office, and disqualification to
hold and enjoy any Office of honor, Trust or Profit under the United States.”)—a term that arguably
includes offices that are not “of profit” or “of trust.” We do not definitively resolve the meaning of this
term. We note, however, that it historically has been understood to encompass offices to which no fees,
62
Application of Emoluments Clause to Member of President’s Council on Bioethics
As mentioned, however, we need not definitively resolve the meaning of the
phrase “of Profit or Trust,” because a position is not an “Office of Profit or Trust
under [the United States]” if it is not, at the least, an “Office . . . under [the United
States].” And, as we shall explain below, a purely advisory position is not an
“Office . . . under [the United States].”
B.
Although we do not here attempt to define comprehensively the meaning of an
“Office under the United States,” it is clear that a purely advisory position does not
qualify. This conclusion follows from the Executive Branch’s historical and
longstanding understanding of that phrase, confirmed by an 1898 report of a
Judiciary Committee of the House of Representatives. And it is also confirmed by
the uncontradicted weight of judicial authority. Accordingly, we conclude that a
purely advisory position is not an “office” and therefore not an “Office of Profit or
Trust under [the United States].”
The Executive Branch has long been of the view that a purely advisory position
is not a public “office.” This view has been expressed most clearly in opinions
from this Office addressing the meaning of the Ineligibility and Incompatibility
Clauses of the Constitution. The Ineligibility Clause provides:
No Senator or Representative shall, during the Time for which he
was elected, be appointed to any civil Office under the Authority of
the United States, which shall have been created, or the Emoluments
whereof shall have been encreased during such time.
U.S. Const. art. I, § 6, cl. 2 (emphasis added). The Incompatibility Clause pro-
vides:
[N]o Person holding any Office under the United States, shall be a
Member of either House during his Continuance in Office.
profits, or salary attach, see Law of Public Offices § 15 (an “honorary office” is “an office to which no
compensation attaches”); State ex rel. Clark v. Stanley, 66 N.C. 59, 63 (1872) (“Where no salary or fees
are annexed to the office, it is a naked office—honorary,—and is supposed to be accepted, merely for
the public good.”); Dickson v. People ex rel. Brown, 17 Ill. 191, 193–95 (1855) (holding that the
director of a state “institution for the education of the deaf and dumb,” a position for which “[t]here are
no fees, perquisites, profits or salary,” occupied an “office of honor”), and that the Attorney General
has interpreted the statutory phrase “office of honor or profit” as synonymous with an “officer of the
United States” under the Appointments Clause, see Oath of Clerks in the Executive Departments, 12
Op. Att’y Gen. 521, 521–22 (1868) (interpreting the phrase “office of honor or profit” in the Act of
July 2, 1862, ch. 128, 12 Stat. 502, to include only those who “are within the legal designation of
officers” as defined by the Supreme Court’s Appointments Clause cases).
63
Opinions of the Office of Legal Counsel in Volume 29
Id. (emphasis added). 5 Whether referring to the need to exercise “some portion of
the sovereign functions of Government,” or the need to exercise “significant
authority pursuant to the laws of the United States,” we have consistently conclud-
ed that a purely advisory position is neither a “civil Office under the Authority of
the United States” nor an “Office under the United States,” because it is not an
“office” at all. To be an “office,” a position must at least involve some exercise of
governmental authority, and an advisory position does not.
In 1989, for example, then Assistant Attorney General Barr concluded that an
advisory commission that “perform[s] only advisory or ceremonial functions” is
not an “office” within the meaning of the Incompatibility and Ineligibility Clauses
because members of such commissions do not “exercis[e] significant authority
pursuant to the laws of the United States.” Common Legislative Encroachments on
Executive Branch Authority, 13 Op. O.L.C. 248, 249 & n.2 (1989). Likewise, in
1969, then Assistant Attorney General Rehnquist concluded that the Staff
Assistant to the President did not hold a civil office within the meaning of the
Ineligibility Clause, observing that the term “office” meant
5
Notably, the Emoluments Clause and the Incompatibility and Ineligibility Clauses share a com-
mon purpose—the prevention of public corruption. See, e.g., 3 Records at 327 (statement of Gov.
Randolph) (The Emoluments Clause “is provided to prevent corruption.”); 3 Story, Commentaries
§§ 1345–46 (The Emoluments Clause “is founded in a just jealousy of foreign influence of every
sort.”); 1 Tucker’s Blackstone at 295–96 & n.* (explaining that the Emoluments Clause is rooted in the
recognition that “[c]orruption is too subtle a poison to be approached, without injury”); 3 The Debates
in the Several State Conventions on the Adoption of the Federal Constitution 370 (Jonathan Elliot ed.,
2d. ed. 1836) (“Elliot’s Debates”) (Madison, June 14, 1788) (The Ineligibility Clause “guards against
abuse by taking away the inducement to create new offices, or increase the emolument of old offices.”);
2 Story, Commentaries § 864 (“The reasons for excluding persons from offices, who have been
concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any
improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of
disinterestedness.”); 2 Elliot’s Debates at 475 (James Wilson, Penn. Ratifying Convention, Dec. 4,
1787) (the Incompatibility Clause seeks to prevent corruption by ensuring that “the mere acceptance of
an office, as a bribe, effectually destroys the end for which it was offered”); id. at 484 (“The great
source of corruption, in [England], is, that persons may hold offices under the crown, and seats in the
legislature, at the same time.”); Steven G. Calabresi & Joan L. Larsen, One Person, One Office:
Separation of Powers or Personnel?, 79 Cornell L. Rev. 1045, 1077 (1994) (“The Incompatibility
Clause was motivated by worries about British-style corruption. The Framers did not perceive it as
having much to do with the separation of powers or with Presidential independence.”); id. at 1051
(“Interestingly, the [Incompatibility] Principle seems to have been grounded less in separation-of-
powers theory than in the Framers’ vivid memory of the British Kings’ practice of ‘bribing’ Members
of Parliament [] and judges with joint appointments to lucrative executive posts. This practice was
repeated in the colonies, which, after independence, enacted strict constitutional bans on plural office
holding. . . . [The Incompatibility Clause was] intended [to] function as a constitutional ethics rule . . .
[but had the] wholly unappreciated and unintended consequence of foreclosing ‘parliamentary’
government in this country by making the President’s Cabinet and Administration much more
independent of Congress.”). Compare Application of the Emoluments Clause of the Constitution and
the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 157–58 (1982) (declining to read the
Emoluments Clause in pari materia with the Appointments Clause primarily because the two clauses
serve different purposes, with the former being an anti-corruption measure and the latter grounded in
separation of power principles).
64
Application of Emoluments Clause to Member of President’s Council on Bioethics
the right, authority, and duty, created and conferred by law, by which
for a given period, either fixed by law or enduring at the pleasure of
the creating power, an individual is invested with some portion of the
sovereign functions of the Government to be exercised by him for the
benefit of the public.
Memorandum for Lamar Alexander, Staff Assistant to the President, from William
H. Rehnquist, Assistant Attorney General, Office of Legal Counsel at 2 (Dec. 9,
1969) (quoting 1 Asher C. Hinds, Hinds’ Precedents of the House of Representa-
tives 604 (1907)) (emphasis added). See also Appointments to the Commission on
the Bicentennial of the Constitution, 8 Op. O.L.C. 200, 207 & n.2 (1984) (noting
that congressmen could serve on presidential commission if “purely executive
functions” were separated from “advisory functions” and congressional participa-
tion was limited to the advisory functions); Memorandum for Robert A.
McConnell, Assistant Attorney General, Office of Legislative Affairs, from Robert
B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Draft
Bill to Establish a Select Commission on Drug Interdiction and Enforcement at 4
(Aug. 23, 1983) (“The Commission’s duties appear to be ‘investigative and
informative’ in nature. Thus, . . . the holding of membership on the Commission
by Members of the Committees on the Judiciary[] raise[s] no constitutional issue
under the . . . Incompatibility Clause[].”); Proposed Commission on Deregulation
of International Ocean Shipping, 7 Op. O.L.C. 202, 203 (1983) (concluding that
appointment of members of Congress to a commission on deregulation of
international ocean shipping would “not implicate the Incompatibility Clause of
the Constitution,” because the commission was “purely advisory”: it would “make
a comprehensive study of particular issues . . . and submit a report making
recommendations to Congress and the President” but would “possess no enforce-
ment authority or power to bind the Government”); Memorandum for Sanford M.
Litvack, Assistant Attorney General, Antitrust Division, from Larry L. Simms,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Report to the
President by the White House Commission on Small Business at 2–3 (July 1, 1980)
(“If the recommended Board is to exercise any significant Executive authority
pursuant to the laws of the United States, it could not include . . . members of
Congress . . . among its membership [under the Incompatibility Clause].”);
Office—Compensation, 22 Op. Att’y Gen. 184, 187 (1898) (“The legal definitions
of a public office have been many and various. The idea seems to prevail that it is
an employment to exercise some delegated part of the sovereign power; and the
Supreme Court appears to attach importance to the ideas of ‘tenure, duration,
emolument, and duties,’ and suggests that the last should be continuing or perma-
nent, not occasional or temporary.”); Congressmen and Senators—Eligibility to
Civil Offices, 26 Op. Att’y Gen. 457, 458–59 (1907) (members of Congress could
serve on the Board of Managers of the Soldiers’ Home because its members are
selected by Congress and are not “Federal officers”).
65
Opinions of the Office of Legal Counsel in Volume 29
This view, moreover, is identical to that espoused by the Judiciary Committee
of the House of Representatives in 1898. There, the House of Representatives
passed a resolution directing the Judiciary Committee to report whether any
member of the House has “accepted any office under the United States” and
whether “the acceptance of such office under the United States has vacated the
seat of the Member” pursuant to the Incompatibility Clause. The Judiciary
Committee concluded that membership on “a commission created by law to
investigate and report, but having no legislative, judicial, or executive powers,”
did not constitute an office within the meaning of the Incompatibility Clause.
1 Asher C. Hinds, Hinds’ Precedents of the House of Representatives 604 (1907).
The committee’s report explained that an “office”:
involves necessarily the power to (1) legislate, or (2) execute law, or
(3) hear and determine judicially questions submitted.
Therefore, mere power to investigate some particular subject and
report thereon, or to negotiate a treaty of peace, or on some commer-
cial subject, and report without power to make binding on the Gov-
ernment, does not constitute a person an officer.
‘It (public office) implies a delegation of a portion of the sover-
eign power to, and the possession of it by, the person filling the of-
fice, and the exercise of such power within legal limits constitutes
the correct discharge of the duties of such office.’
....
The duties of the commissioners appointed under the statutes (to
which attention will be called[)], are not continuing or permanent;
they have no place of business for the public use, or even for their
own use; they give no bond and take no oath. In fact, they are mere
agents appointed by direction of Congress for the purpose of gather-
ing information and making recommendations for its use if the Con-
gress sees fit to avail itself of the labors of the commission. The
commissioners appointed under these statutes or resolutions can not
be compelled to attend or act, and in the broadest sense they are mere
agents of the Congress. These commissioners are not to execute any
standing laws which are the rules of action and the guardians of
rights, nor have they the right or power to make any such law, nor
can they interpret or enforce any existing law.
Id. at 607–08.
Finally, the uncontradicted weight of judicial authority confirms that a purely
advisory position is not a public “office.” These authorities list several factors
66
Application of Emoluments Clause to Member of President’s Council on Bioethics
relevant to determining whether a position amounts to a public “office,” including
whether it involves the delegation of sovereign functions, whether it is created by
law or by contract, whether its occupant is required to take an oath, whether a
salary or fee is attached, whether its duties are continuing and permanent, the
tenure of its occupant, and the method of appointment. See, e.g., Law of Public
Offices §§ 1–9 (describing factors and citing cases); Wise v. Withers, 7 U.S. (3
Cranch.) 331, 336 (1806); United States v. Maurice, 26 F. Cas. 1211, 1214
(C.C.D. Va. 1823); In re Attorney Oaths, 20 Johns. (N.Y.) 492, 492 (1823); Bunn
v. People ex rel. Laflin, 45 Ill. 397, 405 (1867). But they likewise make clear that
the sine qua non of a public “office” is the exercise of some portion of delegated
sovereign authority. See Law of Public Offices §§ 1, 4.
One case, arising out of New York, bears particular emphasis, because it most
directly addresses the question at hand. In Kingston Assocs., Inc. v. LaGuardia,
156 Misc. 116, 121 (N.Y. Sup. Ct. 1935), the court held that a purely advisory
position was not a “civil office of honor, trust, or emolument under the Govern-
ment of the United States” within the meaning of the Greater New York Charter,
which prohibited certain city officials from accepting such an office. At issue was
whether Mayor Fiorello LaGuardia had forfeited the mayoralty by accepting a
position on the federal Advisory Committee on Allotments. The court described
several factors relevant to the question whether the federal advisory position was
an “office” within the meaning of the charter, including whether the occupant was
required to take an oath, whether the position involved a salary, and the duration
of the position. Id. at 120–21. Dispositive, however, was the absence of any
delegated sovereign authority: “There is . . . one indispensable attribute of public
office, namely, the right to exercise some portion of the sovereign power.” Id. at
121. “Clearly,” the court explained, “the members of the Advisory Committee on
Allotments possess none of the powers of the sovereign,” because “[t]he right to
recommend amounts to nothing more than the right to advise . . . . [and] [t]he
making of a recommendation does not constitute the exercise of an executive
function.” Id. at 123. The court thus held that the advisory committee position was
not an “office” at all and hence that Mayor LaGuardia had not forfeited the
mayoralty.
Innumerable other authorities likewise make clear that an indispensable ele-
ment of a public “office” is the exercise of some portion of delegated sovereign
authority, which, as Kingston and other authorities (discussed below) make clear,
is absent with respect to a purely advisory position. As early as 1822, for example,
the Maine Supreme Court held that an “agent[] for the preservation of timber on
the public lands” did not occupy an “office of profit under th[e] State” because it
was not an “office” of any sort, explaining:
We apprehend that the term ‘office’ implies a delegation of a portion
of the sovereign power to, and possession of it by the person filling
the office;—and the exercise of such power within legal limits, con-
67
Opinions of the Office of Legal Counsel in Volume 29
stitutes the correct discharge of the duties of such office. The power
thus delegated and possessed, may be a portion belonging sometimes
to one of the three great departments, and sometimes to another; still
it is a legal power, which may be rightfully exercised, and in its ef-
fects it will bind the rights of others.
Opinion of the Justices, 3 Greenl. (Me.) 481, 482 (1822). A leading late-19th
century treatise on public offices is to like effect, defining an “office” as:
the right, authority and duty, created and conferred by law, by which
for a given period, either fixed by law or enduring at the pleasure of
the creating power, an individual is invested with some portion of the
sovereign functions of government, to be exercised by him for the
benefit of the public. The individual so invested is a public of-
ficer. . . . The most important characteristic which distinguishes an
office from an employment or contract is that the creation and con-
ferring of an office involves a delegation to the individual of some of
the sovereign functions of government, to be exercised by him for the
benefit of the public.
Law of Public Offices §§ 1, 4 (emphasis added); see also id. § 4 (“Unless the
powers conferred are of this nature[—involving the delegation of some sovereign
function—]the individual is not a public officer.”). And other authorities support-
ing this proposition are numerous and uniform. 6 Indeed, although not every
6
See, e.g., Sheboygan Co. v. Parker, 70 U.S. 93, 96 (1865) (individuals appointed by county as
special agents for issuing bonds were not “county officers” because “[t]hey do not exercise any of the
political functions of county officers, such as levying taxes, &c.,” and “[t]hey do not exercise
‘continuously, and as part of the regular and permanent administration of the government, any
important public powers, trusts, or duties’”); Hall v. Wisconsin, 103 U.S. 5, 9 (1880) (commissioner
appointed by county to make a scientific survey did not hold a public office, noting that under state
law, the term “civil officer” “embraces only those officers in whom a portion of the sovereignty is
vested, or to whom the enforcement of municipal regulations or the control of the general interests of
society is confided”); Byrne’s Adm’rs v. Stewart’s Adm’rs, 3 S.C. Eq. (Des.) 466, 478 (1812) (the
“office of solicitor” is not a public office because “he does not possess any portion of the public
authority”); Commonwealth ex rel. Bache v. Binns, 17 Serg. & Rawle 219, 244 (Pa. 1828) (opinion of
Tod, J.) (printer of congressional reports does not hold an “office . . . of profit or trust, under the
government of the United States,” noting that an “office” requires “a delegation of a portion of the
sovereign power”); In re J.L. Dorsey, 7 Port. 293 373 (Ala. 1838) (opinion of Ormond, J.) (the term
“office” refers “to those who exercise an office or place of honor or profit under the State government,
and by authority derived from it”); Bruce Wyman, The Principles of the Administrative Law Governing
the Relations of Public Officers 163 (1903) (“A public office . . . is the right, authority and duty
conferred by law . . . [wherein] an individual is invested with some portion of the sovereign functions
of the government to be exercised by him for the benefit of the public . . . . It finds its source and
limitation in some act of expression of governmental power.”); James L. High, A Treatise on
Extraordinary Legal Remedies 581 (3d ed. 1896) (“An office, such as to properly come within the
legitimate scope of an information in the nature of a quo warranto, may be defined as a public position,
to which a portion of the sovereignty of the country, either legislative, executive or judicial, attaches for
68
Application of Emoluments Clause to Member of President’s Council on Bioethics
reported decision explicitly ties a public “office” to the exercise of some portion of
sovereign authority, we have not found a single case in which an individual was
deemed to hold such an “office,” including one “of profit or trust,” where he was
invested with no delegated sovereign authority, significant or otherwise. 7
the time being, and which is exercised for the benefit of the public.”); United States ex rel. Boyd v.
Lockwood, 1 Pin. 359, 363 (Wisc. Terr. 1843) (“An office is where, for the time being, a portion of the
sovereignty, legislative, executive or judicial, attaches, to be exercised for the public benefit. That the
office of judge of probate of Crawford county is an office within this definition, there can be no
question.”); Bunn v. People ex rel. Laflin, 45 Ill. 397, 406 (1867) (commissioners supervising
construction of a statehouse did not hold an “office” because they had not “the slightest connection
with the exercise of any portion of the executive power, or of any departmental powers”); Eliason v.
Coleman, 86 N.C. 235, 239–40 (1882) (chief engineer of the Western North Carolina Railroad did not
hold an “office,” defined as “‘a public position to which a portion of the sovereignty of the country,
either legislative, executive or judicial, attaches for the time being, and which is exercised for the
benefit of the public’”); Commonwealth v. Swasey, 133 Mass. 538, 541 (1882) (the city physician holds
a “public office” because he “is by virtue of his office a member of the board of health, which is
invested with important powers to be exercised for the safety and health of the people”); State v.
Kennon, 7 Ohio St. 546, 562–63 (1857) (panel authorized to appoint, supervise and remove other
government officials occupied “offices” because they were charged with “exercis[ing] continuously,
and as part of the regular and permanent administration of the government, important public powers,
trusts, and duties”); Shelby v. Alcorn, 36 Miss. 273, 292 (1858) (a “levee commissioner” is a “civil
office of profit” because “[c]lothed with a portion of the power vested in [the executive] department,
the commissioner, in the discharge of his proper functions, exercises as clearly sovereign power as the
governor, or a sheriff, or any other executive officer, when acting within his appropriate sphere”).
7
In some such cases, the individual deemed to hold an “office” clearly exercised sovereign authori-
ty. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 164 (1803) (describing the position of justice
of the peace for the District of Columbia, which carried with it substantial governmental authority, as
among the “offices of trust, of honor or of profit”); United States v. Maurice, 26 F. Cas. 1211, 1214
(C.C.D. Va. 1823) (No. 15,747) (an “agent of fortifications,” whose duties included “disburs[ing]
money placed in their hands” in accordance with “the orders of the engineer department,” “provid[ing]
materials and workmen deemed necessary for the fortifications,” and “pay[ing] the labourers em–
ployed,” occupied an “office” and was an “Officer of the United States”); Wise v. Withers, 7 U.S.
(3 Cranch.) 331, 336 (1806) (a “justice of the peace” for the District of Columbia was an “officer under
the government of the United States” within the meaning of a statute exempting such officers from
militia duty); In re Corliss, 11 R.I. 638, 640–41 (1876) (holding that commissioners of the United
States Centennial Commission held an “Office of Trust” under U.S. Const. art. II, § 1, cl. 2, where their
statutorily created duties were to “‘prepare and superintend the execution of a plan for holding the
[centennial] exhibition’”; work with a finance board “‘to raise and disburse funds’”; make regulations
setting entrance and admission or otherwise “‘affecting the rights privileges, or interests of the
exhibitors, or of the public’”; and “‘have power to control, change, or revoke all . . . grants’”
“‘conferring rights and privileges’” relating to the exhibition or its grounds and buildings); United
States v. Hartwell, 73 U.S. 385, 392–93 (1867) (holding that a “clerk” in the office of the “assistant
treasurer of the United States . . . at Boston” was a “public officer[]” within the meaning of a criminal
embezzlement statute that applied to, among others, “‘[a]ll officers and other persons charged . . . with
the safe-keeping, transfer and disbursement of the public money,’” where the clerk was “subject to the
duty, to keep safely the public moneys of the United States”); Town of Meredith v. Ladd, 2 N.H. 517,
519 (1823) (“[H]ere the office of constable is an office of trust . . . because both ex-officio and by
precepts, a constable is empowered to arrest criminals under certain circumstances and by execution to
seize either the person or property of small debtors.”). In others, an individual who apparently did
exercise some sovereign authority was nonetheless deemed not to hold a public “office” because he did
not satisfy other elements of an “office”; for example, his duties were not continuing and permanent.
See, e.g., United States v. Germaine, 99 U.S. 508, 512 (1879) (a “civil surgeon” was not an “officer of
69
Opinions of the Office of Legal Counsel in Volume 29
In light of the overwhelming authority discussed above, we conclude that a
purely advisory position is not an “Office under the United States,” and hence not
an “Office of Profit or Trust under [the United States]” within the meaning of the
Emoluments Clause.
C.
This conclusion is generally consistent with the past opinions of this office.
First, this office’s more recent opinions have concluded that membership on
certain advisory committees did not amount to an “Office of Profit or Trust.” See
Advisory Committee on International Economic Policy, 20 Op. O.L.C. 123, 123
(1996) (members of Advisory Committee on International Economic Policy did
not hold an “Office of Profit or Trust”); Application of the Emoluments Clause to
“Representative” Members of Advisory Committees, 21 Op. O.L.C. 176 (1997)
(“‘representative’ members” of an advisory committee did not hold an “Office of
Profit or Trust”). These opinions “reject[ed] the sweeping and unqualified view,”
Advisory Committee on International Economic Policy, 20 Op. O.L.C. at 123,
expressed in dictum five years earlier, that all federal advisory committee posi-
tions were covered by the Emoluments Clause, see Applicability of 18 U.S.C.
§ 219 to Members of Federal Advisory Committees, 15 Op. O.L.C. 65, 68 (1991).
Although a 1993 opinion concluded that members of an advisory committee did
hold an “Office of Profit or Trust,” that entity, while nominally called an “advisory
committee,” was, in fact, a “Federal agency established by statute” with certain
statutorily assigned powers and functions. Applicability of the Emoluments Clause
to Non-Government Members of ACUS, 17 Op. O.L.C. 114, 117, 123 n.10 (1993).
Second, the great majority of other opinions issued by this office, mostly prior
to 1982, equated an “Office of Profit or Trust” under the Emoluments Clause with
the United States” within the meaning of a federal extortion statute because his duties were not “con-
tinuing and permanent,” but “occasional or temporary,” and noting that “[h]e is but an agent of the
[C]ommissioner [of Pensions], appointed by him, and removable by him at his pleasure, to procure
information needed to aid in the performance of his own official duties”); Auffmordt v. Hedden, 137
U.S. 310, 326–27 (1890) (a “merchant appraiser” selected by a customs collector to conduct an
appraisal of goods is not an “officer of the United States” within the meaning of the Appointments
Clause because “his position is without tenure, duration, continuing emolument, or continuous duties,
and he acts only occasionally and temporarily”); Ex Parte William Pool, 2 Va. Cas. 276, 280 (1821)
(holding that a state justice of the peace with the power to arrest was not an “officer” because his duties
were not regular and permanent), but see id. at 290–91 (dissenting opinion) (arguing that the authority
of justices of the peace “to grant warrants of arrest against persons accused of crimes or offences
against the Laws of the United States, to examine, bail, or commit the accused, compel the attendance
of witnesses, recognize them to appear to give evidence under pain of imprisonment,” made them
officers under the Appointments Clause of the Constitution); Shepherd v. Commonwealth, 1 Serg. &
Rawle 1, 8–9 (Pa. 1814) (holding that a commissioner charged with issuing binding decisions regarding
state compensation for claimants to certain lands did not hold an office because the position was special
or temporary). Such cases stand for the uncontroversial proposition that while some exercise of
sovereign authority is a necessary element of an “office,” it is not of itself a sufficient one.
70
Application of Emoluments Clause to Member of President’s Council on Bioethics
an “officer of the United States” under the Appointments Clause. 8 As the Supreme
Court made clear in Buckley v. Valeo, 424 U.S. 1 (1976), however, an “officer of
the United States” exercises “significant authority pursuant to the laws of the
United States,” id. at 126 (emphasis added). A position that carried with it no
governmental authority (significant or otherwise) would not be an office for
purposes of the Appointments Clause, and therefore, under the analysis of these
opinions, would not be an office under the Emoluments Clause either. According-
ly, our conclusion is consistent with these opinions as well.
Finally, a small handful of this Office’s opinions issued after 1982, do create
some confusion as to what amounts to an “Office of Profit or Trust.” Much of this
confusion stems from a 1982 opinion, in which we abandoned this Office’s
longstanding position that an “Office of Profit or Trust” under the Emoluments
Clause was synonymous with an “officer of the United States” under the Ap-
pointments Clause, relying primarily upon the differing purposes of the two
clauses. See Application of the Emoluments Clause of the Constitution and the
Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 157 (1982) (noting that the
Appointments Clause “finds its roots in separation of powers principles” whereas
“[t]he Emoluments Clause, on the other hand, is designed ‘to exclude corruption
and foreign influence’”). 9 In the 1982 opinion and on three subsequent occasions
8
See, e.g., Memorandum for Laurence H. Silberman, Deputy Attorney General, from Mary C.
Lawton, Acting Assistant Attorney General, Office of Legal Counsel, Re: Ability of Intermittent Con-
sultant to United States to Hold Similar Position under Foreign Government at 4 (Aug. 7, 1974) (con-
cluding that, because a part-time consultant “would not be an officer in the constitutional sense,” “[t]he
prohibitions of [the Emoluments Clause] would not apply to him”); Memorandum for Peter Strauss,
General Counsel, Nuclear Regulatory Commission, from Leon Ulman, Deputy Assistant Attorney
General, Office of Legal Counsel at 2 n.1 (July 26, 1976) (reading “the term ‘Office’ as it appears in
[the Emoluments Clause] . . . in pari materia with the term ‘Officers’ as it appears in Art. II, § 2 [the
Appointments Clause]”); Memorandum for Dudley H. Chapman, Associate Counsel to the President,
from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Appointment of a
Foreign National to the National Voluntary Service Advisory Council (May 10, 1974); Offices of Trust,
15 Op. Att’y Gen. 187 (1877); Foreign Diplomatic Commission, 13 Op. Att’y Gen. 537 (1871);
Delivery of an Insignia from the German Emperor to a Clerk in the Post-Office Department, 27 Op.
Att’y Gen. 219 (1909); Field Assistant on the Geological Survey—Acceptance of an Order from the
King of Sweden, 28 Op. Att’y Gen. 598 (1911); Memorandum for S.A. Andretta, Administrative
Assistant Attorney General, from J. Lee Rankin, Assistant Attorney General, Office of Legal Counsel,
Re: Payment of Compensation to Individual in Receipt of Compensation from a Foreign Government
(Oct. 4, 1954). See also Applicability of Emoluments Clause to Proposed Service of Government
Employee on Commission of International Historians, 11 Op. O.L.C. 89, 90 & n.2 (1987) (relying upon
pre-1982 opinion equating “Office of Profit or Trust” with “Officer of the United States” under the
Appointments Clause) (citing Delivery of an Insignia from the German Emperor to a Clerk in the Post-
Office Department, 27 Op. Att’y Gen. 219 (1909)).
9
The 1982 opinion also stated that the “language . . . of the two provisions [is] significantly differ-
ent” and suggested that all federal employees held an “Office of Profit or Trust” under the Emoluments
Clause. Id. at 157–58. That opinion, however, undertook no analysis of the text of either the Appoint-
ments Clause or the Emoluments Clause, and we have since retreated from the suggestion that all
federal employees held an “Office of Profit or Trust.” See, e.g., Advisory Committee on International
Economic Policy, 20 Op. O.L.C. 123 (1996) (some special government employees do not hold an
71
Opinions of the Office of Legal Counsel in Volume 29
we suggested that individuals with access to sensitive, national security-related
information held “Office[s] of Profit or Trust” under the Emoluments Clause,
without further analyzing the extent of governmental authority exercised by these
federal employees. 10 Because these opinions did not analyze the extent of the
governmental authority exercised by these federal employees, they could be taken
to suggest that such analysis was not necessary to determining whether or not
these individuals held an “Office of Profit or Trust.”
This is not, however, how we understand these opinions. Rather, it is at least
arguable that the authority to control and safeguard classified information does
amount to the exercise of governmental authority sufficient to render employment
with the federal government a public “office.” Such a conclusion, for example,
finds some support in the Supreme Court’s Hartwell decision, wherein the Court
held that a clerk in the Treasury Department “charged with the safe-keeping of
public money” was a “public officer” within the meaning of a federal anti-
embezzlement statute, Hartwell, 73 U.S. at 393, noting that he “was appointed by
the head of a department within the meaning of [the Appointments Clause],” id. at
393–94 & n.9. See also id. at 394 (describing the clerk as a “subordinate of-
ficer[]”). By analogy, it could be argued that a federal government employee
charged with safeguarding sensitive national security-related information would
likewise be a public officer charged with the exercise of some governmental
authority. See, e.g., Exec. Order No. 12958, §§ 4.1–4.3 (procedures for safeguard-
ing classified information) (as amended); 32 C.F.R. § 2003.20 (2003) (all person-
“Office of Profit or Trust”); Application of the Emoluments Clause to “Representative” Members of
Advisory Committees, 21 Op. O.L.C. 176 (1997) (same); Application of Emoluments Clause to Part-
Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96, 99 (1986) (noting that
although “this Office expressed the view in 1982 that the Emoluments Clause applies to all government
employees, . . . the clause need not be read so broadly to resolve the matter at hand”).
10
See Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decora-
tions Act, 6 Op. O.L.C. at 157–58 (Nuclear Regulatory Commission employee “involve[d] [in] the
[NRC’s] assessment of operating [nuclear] reactors,” “a field where . . . secrecy is pervasive”);
Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission,
10 Op. O.L.C. 96, 99 (1986) (part-time Nuclear Regulatory Commission employee who is “furnish[ed]
[by the NRC] with various materials and documentation,” whose position “requires a security
clearance,” and who “may develop or have access to sensitive and important, perhaps classified,
information”); Letter for James A. Fitzgerald, Assistant General Counsel, Nuclear Regulatory
Commission, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel at 5 (June
3, 1986) (among other things, fact that employee has access to classified information indicates that he
holds an office of profit or trust); Memorandum for James H. Thessin, Assistant Legal Adviser for
Management, Department of State, from John O. McGinnis, Deputy Assistant Attorney General, Office
of Legal Counsel, Re: Application of the Emoluments Clause to a Civilian Aide to the Secretary of the
Army at 3 (Aug. 29, 1988) (civilian aide to the Secretary of the Army has “access to classified
information, and receive[s] a security orientation concerning . . . responsibilities in receiving, handling,
and protecting classified information”) (quotations omitted).
Editor’s Note: The June 3, 1986 letter for the Assistant General Counsel of the Nuclear Regulatory
Commission is the unpublished version of Application of Emoluments Clause to Part-Time Consultant
for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96 (1986), also cited in this footnote.
72
Application of Emoluments Clause to Member of President’s Council on Bioethics
nel granted access to classified information must sign nondisclosure agreement
acknowledging that “all classified information . . . [subject to] th[e] Agreement is
now and will remain the property of . . . the United States Government”); cf. Snepp
v. United States, 444 U.S. 507, 510, 512 (1980) (a CIA agent’s access to sensitive
information imposed upon him a “fiduciary obligation” to safeguard that infor-
mation, noting that the unauthorized disclosure of such information “impairs the
CIA’s ability to perform its statutory duties”). In this regard, it is noteworthy that
our opinion concluding that membership on the Advisory Committee on Interna-
tional Economic Policy was not an “Office of Profit or Trust” expressly relied on
the fact that the members “[did] not have access to classified information.”
Advisory Committee on International Policy, 20 Op. O.L.C. at 123. In the end,
however, we need not definitively resolve whether these four opinions reached the
correct result, for as we have explained, a member of the President’s Bioethics
Council does not have access to classified information and does not otherwise
exercise any governmental authority.
III.
Accordingly, we conclude that membership on the President’s Bioethics Coun-
cil, a purely advisory position without access to classified information, is not an
“Office of Profit or Trust under [the United States]” within the meaning of the
Emoluments Clause.
NOEL J. FRANCISCO
Deputy Assistant Attorney General
Office of Legal Counsel
73