Applicability of Emoluments Clause to “ Representative”

Members of Advisory Committees

The Em olum ents C lause o f the Constitution does not apply to “ representative” members o f advisory 

com m ittees, that is, m em bers who are chosen to present the views of private organizations and 

interests.

September 2, 1997

L e t t e r O p in io n f o r t h e G e n e r a l C o u n s e l

U n it e d St a t e s T r a d e R e p r e s e n t a t iv e

This is in response to your inquiry about the application of the Emoluments 

Clause, U.S. Const, art. I, §9, cl. 8, to members of advisory committees. The 

Clause forbids anyone “ holding any Office of Profit or Trust” under the United 

States from accepting, without the consent of Congress, “ any present, Emolument, 

Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” 

In 1991, we expressed the categorical opinion that members of federal advisory 

committees hold offices of profit or trust within the meaning of the Clause. 

Applicability o f 18 U.S.C. §2J9 to Members of Federal Advisory Committees, 

15 Op. O.L.C. 65, 68 (1991). However, we later receded from that sweeping view 

and concluded that “ not every member of an advisory committee necessarily 

occupies an ‘Office of Profit or Trust’ under the Clause.” Letter for Conrad K. 

Harper, Legal Adviser, Department of State, from Walter Dellinger, Assistant 

Attorney General, Office of Legal Counsel (Mar. 1, 1994). Later, we specifically 

determined that members of the State Department’s Advisory Committee on International Economic Policy did not hold such offices because those members “ meet 

only occasionally, serve without compensation, take no oath, and do not have 

access to classified information,” and because “ the Committee is purely advisory, 

is not a creature of statute, and discharges no substantive statutory responsibilities.” The Advisory Committee on International Economic Policy, 20 Op. O.L.C. 

123, 123 (1996).

In light of these refinements to our position, we now believe that “ representative” members of advisory committees are not covered by the Clause. Such representatives are chosen to present the views of private organizations and interests. 

Under well-established precedents, a representative is not an “ officer or 

employee” of the United States under the conflict of interest laws: “ ‘[0]ne who 

is requested to appear before a Government department or agency to present the 

views of a non-governmental organization or group which he represents, or for 

which he is in a position to speak, does not act as a servant o f the Government

and is not its officer or employee.’ ” Memorandum to Heads of Departments and 

Agencies of the Executive Branch, from J. Jackson Walter, Director, Office of 

Government Ethics, reprinted in Informal Advisory Letters and Memoranda and

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Applicability o f Emoluments Clause to ' 'Representative ’' Members o f Advisory Committees

Formal Opinions 1979-1988, at 330 (1982) (quoting Memorandum of the President, Preventing Conflicts o f Interest on the Part o f Special Government

Employees (May 2, 1963)). It would be exceedingly incongruous if, as we have 

concluded, special government employees on some advisory committees do not 

occupy offices of profit or trust under the Clause, but representatives who are 

not even employees are covered. Because representatives owe their loyalty to outside interests and are not “ servantfs] of the Government,” they do not, in our 

view, hold offices of profit or trust under the United States.

RICHARD L. SHIFFRIN

Deputy Assistant Attorney General

Office o f Legal Counsel

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