Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International Historians ( 1987 )

Applicability of Emoluments Clause to Proposed
Service of Government Employee on Commission
of International Historians
A government employee’s proposed service as a member of a commission o f international
historians established under the auspices of the Austrian government would violate the
Emoluments Clause of the Constitution, U.S. Const, art. I, § 9, cl. 8.
July 30, 1987
M em orandum O p in io n for th e A c t in g A r c h iv is t of the U n it e d S t a t e s
This memorandum responds to your request of July 27, 1987, for our views
on the applicability of the Emoluments Clause of the Constitution to proposed
service by Mr. A, an employee of the National Archives, as a member of a
commission of international historians established to review the wartime record
of Dr. Kurt Waldheim, President of Austria. According to the information you
have provided us, the Commission was established at the request of the Aus­
trian government, and is being funded entirely by the Austrian government.
You indicate that Mr. A has asked that he be permitted to accept an invitation to
serve as a member of the commission, extended to him by the commission’s
co-chairman, in his private capacity. Although you have stated that Mr. A
would be entitled to reimbursement of his expenses and an honorarium from
the Austrian government, we understand that Mr. A has indicated a willingness
to forego the honorarium and to rely upon private sources of funding for his
expenses.
As discussed more fully below, we believe that, in the circumstances as we
understand them, Mr. A’s acceptance of the invitation to serve as a member of
the Commission would be inconsistent with the prohibition in the Emoluments
Clause against a federal official’s accepting an “office” from a foreign state.
Article I, § 9, cl. 8 of the Constitution provides:
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 Congress, accept of any present,
Emolument, Office, or Title, of any kind whatever, from any
King, Prince, or foreign State.
The Emoluments Clause, adopted unanimously at the Constitutional Conven­
tion of 1787, was intended by the Framers to preserve the independence of
foreign ministers and other officers of the United States from “corruption and
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foreign influence.” 3 M. Farrand, Records o f the Federal Convention o f 1787
327 (1966) (Farrand). See a lso 2 Farrand, at 327, 389.1 Consistent with its
expansive language and underlying purpose, the provision has been interpreted
as being “particularly directed against every kind of influence by foreign
governm ents upon officers of the United States, based upon our historic poli­
cies as a nation.” 24 Op. Att’y Gen. 116,117 (1902) (emphasis in original). See
also J. Story, Commentaries on the Constitution o f the United States § 684
(Carolina Academic Press 1987) (1833 Abridgement) (“the provision is highly
important, as it puts 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”). By its terms, the prohibition is directed not just to
payments of money of gifts from foreign governments, but also to the accep­
tance of an “office.”
There seems little doubt that Mr. A occupies an “Office of Profit or Trust
under [the United States]” as that phrase is used in the Emoluments Clause.2
And the Emoluments Clause is plainly applicable where an official is offered
the gift, title or office in his private capacity.3 Moreover, as we understand the
circumstances of the Commission’s establishment and funding, it is clear that
the invitation in this case came from the Austrian government, itself indisput­
ably a “foreign state” under the Emoluments Clause.4
The only question as to which there appears to be any issue is whether
acceptance of membership on the Commission would constitute acceptance of
an “office” under the Emoluments Clause. We believe that it would.
1 Farrand reports G overnor Randolph’s explanation o f the Em olum ents C lause at the V irginia Convention
as follow s:
[This] restrictio n restrains any perso n s in office from accepting of any present or emolument,
title o r office, from any foreign p rin ce or s ta te .. . . T his restriction is provided to prevent
corruption. A ll m en have a natural inherent right o f receiving em olum ents from any one, unless
they be restrained by th e regulations o f the com m unity. An accident which actually happened,
o perated in producing the restriction. A box was presented to our am bassador by the king o f our
allies. It w as thought proper, in o rd er to exclude corruption and foreign influence, to prohibit any
o n e in o ffice from receiving or holding any em olum ents from foreign states I believe, that if at
th at m om ent, w hen we were in harm ony with the king o f France, w e had supposed that he was
co rru p tin g o u r am bassador, it m ight have disturbed that confidence, and dim inished that mutual
friendship, w hich contributed to carry us through the w ar.
3 Farrand at 327.
2 See 21 Op. A tt’y Gen. 219 (1909) (postal clerk holds an office o f profit or trust for Em olum ents Clause
purposes, because he “holds h is appointm ent from a head o f a D epartm ent . . . , receives for his services a
fixed com pensation from m oneys appropriated for the purpose by C ongress, . . . has regularly prescribed
services to perform , and his duties are co ntinuing and perm anent, and not occasional and tem porary”). See
also “A pplication o f Em olum ents Clause to Part-Tim e C onsultant for the N uclear Regulatory Com m ission,”
10 Op. O .L.C . 93 (1986) (part-tim e staff consultant for NRC holds a position requiring his undivided loyalty
to the U nited States).
3 Cf. “A ssum ption by P eople’s R epublic o f C hina o f Expenses o f U.S. Delegation,” 2 Op. O.L.C. 345(1978) (E m olum ents C lause does not p rohibit assum ption by the People’s Republic o f C hina of the expenses
o f an official U .S. delegation).
4 E ven if it could be concluded that the invitation in this case had been extended by an international body,
we believe the concerns expressed by the Fram ers in the Em olum ents C lause would still be applicable. In this
regard, w e note that the Foreign Gifts an d D ecorations Act, by which C ongress gave its express consent for
officials to accept gifts from foreign co u n tries under certain limited circum stances, includes within its
defin itio n o f “foreign governm ent” “any international or m ultinational organization w hose mem bership is
com posed o f any unit o f foreign governm ent.” 5 U.S.C. § 7342(a)(2)(B )
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Although we have found no case or other formal precedent directly on point,
there are several Attorney General opinions that indicate that a United States
government official’s acceptance of membership, in a personal capacity, on an
entity established and funded by a foreign government may violate the Emolu­
ments Clause. In 13 Op. Att’y Gen. 537 (1871), Attorney General Akerman
considered “whether an American minister to one foreign power can accept a
diplomatic commission to the same power from another foreign power.” He
concluded that:
Unquestionably, a minister of the United States abroad is not
prohibited by the Constitution from rendering a friendly service
to a foreign power, even that of negotiating a treaty for it,
provided he does not become an officer of that power. But
whatever difficulties may grow out of the vagueness with which
this term is defined in the books, it is clear that the acceptance of
a formal commission as minister plenipotentiary creates an offi­
cial relation between the individual thus commissioned and the
government which in this way accredits him as its representative.
Id. at 538. See also 6 Op. Att’y Gen. 409 (1854) (United States Marshal for
Florida could not hold the “office” of Commercial Agent of France).
We are advised by the Legal Adviser’s Office of the Department of State that
it has construed the Emoluments Clause to prohibit a federal official from
accepting, in a private capacity, appointment to a commission established by a
foreign government. In 1983, the Legal Adviser informed a member of a
Presidential advisory committee that his membership on a “bi-national” com­
mission established by the Costa Rican government constituted acceptance of a
foreign “office” prohibited by the Emoluments Clause, and advised him that he
must resign.
As a general matter, we believe that a United States government official’s
membership on an entity established and funded by a foreign government
raises serious issues under the Emoluments Clause. In this case, the facts lead
us to conclude that Mr. A’s membership on the Commission would create the
kind of “official relation” between him and the Austrian government that the
Framers of the Constitution wished to avoid, and that it therefore constitutes an
“office” under the Emoluments Clause. Accordingly, we believe Mr. A is
constitutionally prohibited from accepting the invitation to serve as a member
of the Austrian Commission.5
C harles J. C ooper
Assistant Attorney General
Office o f Legal Counsel
5 O ur conclusion in this situation is reinforced by the circum stances surrounding the C om m ission’s creation
and its m andate. We do not, however, intend o ur conclusion respecting the applicability of the Em olum ents
C lause to suggest that Mr. A would be subjected to im proper foreign influence, or otherw ise to leave any
negative inference respecting the integrity o f the service he would render as a m ember of the C om m ission.
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