Applicability of the Emoluments Clause to

Non-Government Members of ACUS

T h e E m o lu m en ts C lau se o f the C onstitution p ro h ib its n o n-governm ent m e m b e rs o f the A dm inistrative 

C o n fe re n ce o f the U n ited S tates from acc e p tin g , absent C o n g re ss’s c o n sen t, a d istribution from 

th e ir p a rtn e rsh ip s th at in clu d es som e p ro p o rtio n a te share o f the revenues gen erated from the p a rtn e rsh ip ’s fo reig n g o v e rn m e n t clients

N o n -g o v e rn m e n t m em b ers o f A C U S are a lso generally forbidden, ab sen t C o n g re ss’s consent, from 

a c c e p tin g p ay m en ts from com m ercial e n titie s ow ned or co n tro lled by foreign governm ents.

O c to b e r 28, 1993

M e m o r a n d u m 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

A d m in is t r a t iv e C o n f e r e n c e o f t h e U n it e d S t a t e s

This memorandum responds to your request of July 30, 1993, which sought 

clarification of a portion of our April 29, 1991, letter to the Deputy Counsel to the 

President.1 Specifically, you raise two questions concerning the advice we gave on 

that occasion concerning the scope and application of the Emoluments Clause, U.S. 

Const, art. I, § 9, cl. 8. After noting that a significant number of the 101 members 

of the Administrative Conference (the “Conference” or “ACUS”) are lawyers in 

private practice, professors of law, or other experts in administrative law, you ask 

whether the Emoluments Clause prevents service on the Conference by a private 

individual who receives a partnership distribution from his or her firm that may 

include income received by the firm from a foreign government solely because of 

the pooling of partnership revenues. Further, you ask whether the Clause prevents 

service on the Conference by a private individual who receives payment from government-owned or controlled instrumentalities that do not engage in traditional 

functions — including, but not limited to, foreign public universities.

I.

Congress established the Conference “to provide suitable arrangements through, 

which Federal agencies, assisted by outside experts, may cooperatively study mutual problems, exchange information, and develop recommendations for action by 

proper authorities to the end that private rights may be fully protected and regula1 Y our request is set forth in the Letter for Daniel K offsky, Esq., Acting Assistant Attorney General, 

O ffice o f Legal C ounsel, from Gary J Edles, General C ounsel, Adm inistrative C onference o f the United 

States (July 30, 1993) (“AC US Letter”). T h e opinion to w hich your letter refers is A pplicability o f 18 U.S.C

§ 2 1 9 to M em bers o j F ederal Advisory C om m ittees, 15 Op. O .L .C . 65 (1991) (“the April 1991 Opinion'*)

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Applicability o f the Emoluments Clause to N on-G overnm ent M em bers o f A C U S

tory activities and other Federal responsibilities may be carried out expeditiously in 

the public interest.” 5 U.S.C. § 591; see also Marshall J. Breger, The Administrative Conference o f the United States: A Quarter Century Perspective, 53 U. Pitt. 

L. Rev. 813, 814-19 (1992) (“Breger”) (discussing origins and purposes of 

ACUS). “The bulk of the Conference’s work has been its research function and it 

is here that it has performed its most important role as a ventilator of new ideas in 

administrative procedure.” Id. at 829. The Conference must transmit an annual 

report to the President and Congress and such interim reports as the Chairman considers desirable. See 5 U.S.C. § 595(c). In addition, “[o]n a number of occasions, 

Congress has specifically mandated that the Conference undertake particular activities.” Breger at 835.

The Conference consists of not more than 101 nor fewer than 75 members, including a Chairman appointed by the President with the advice and consent of the 

Senate, the chairman (or designee) of each independent regulatory board or commission, the head (or designee) of each executive department or other administrative agency which is designated by the President, certain other governmental 

members, certain Presidential appointees, and “not more than 40 other members 

appointed by the Chairman.” 5 U.S.C. § 593. The Chairman’s appointees “may at 

no time be less than one-third nor more than two-fifths of the total number of 

members.” Id. § 593(b)(6). The Chairman is to select appointees “in a manner 

which will provide broad representation of the views of private citizens and utilize 

diverse experience. The members shall be members of the practicing bar, scholars 

in the field of administrative law or government, or others specially informed by 

knowledge and experience with respect to Federal administrative procedure.” Id.

Apart from the Chairman, the members of the Conference are not entitled to 

payment for their services. 5 U.S.C. § 593(c). Non-government members of the 

Conference may be deemed to be special government employees within the meaning of 18 U.S.C. § 202 and subject to the provisions of 18 U.S.C. §§ 201-224. See

1 C.F.R. § 302.5(a) (1993).

The membership of the Conference meeting in plenary session constitutes the 

Assembly. 5 U.S.C. § 595(a). The Assembly has various powers, including that of 

“adopting] such recommendations as it considers appropriate for improving administrative procedure.” Id. § 595(a)(1). “Conference recommendations and 

statements are published in the Federal Register and then codified in the Code of 

Federal Regulations.” Breger at 827-28. “Since its establishment, the Conference’s recommendations have had a significant effect on the workings of the federal government.” Id. at 831.

The Conference includes a Council composed of the Chairman and ten other 

members appointed by the President, “of whom not more than one-half shall be 

employees of Federal regulatory agencies or Executive departments.” 5 U.S.C. § 

595(b). The Council may exercise various powers, including calling meetings of 

the Conference, proposing by-laws and regulations, making recommendations to

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O pinions o f the O ffice o f Legal Counsel

the Conference on subjects germane to its purpose, and receiving and considering 

reports of Conference committees2 and distributing such reports to Conference 

members with the Council’s own views and recommendations. Id.

II.

The Emoluments Clause, U.S. Const. Art. I, § 9, cl. 8, 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 the Congress, accept of any present, 

Emolument, Office, or Title, of any kind whatever, from any King,

Prince, or foreign State.

The Emoluments Clause was adopted unanimously at the Constitutional Convention, and was intended to protect foreign ministers and other officers of the 

United States from undue influence and corruption by foreign governments. James 

Madison’s notes on the Convention for August 23, 1787, report:

Mr[.] Pinkney urged the necessity of preserving foreign Ministers & 

other officers of the U.S. independent of external influence and 

moved to insert — after Art[.] VII sect[.] 7. the clause following —

“No person holding any office of profit or trust under the U.S. shall 

without the consent of the Legislature, accept of any present, 

emolument, office or title of any kind whatever, from any King,

Prince or foreign State[”] which passed nem: contrad.

2 The Records o f the Federal Convention of 1787, at 389 (Max Farrand ed., rev. 

ed. 1966 reprint); see also 3 id. at 327 (remarks of Governor Randolph); President

Reagan’s Ability to Receive Retirement Benefits from the State o f California, 5 Op.

O.L.C. 187, 188 (1981) (discussing history of ratification of Clause).

A.

The ACUS Letter represents that, typically, half of the Council members come 

from outside the Federal government, as do somewhat less than half (i.e., approximately forty) of the remaining Conference members. It points out that these private members “are typically lawyers in private practice, law professors, and other

2 U nder its by-law s, the Conference has six standing com m ittees, adjudication, adm inistration, governm ental processes, judicial review , regulation and rulem aking. See I C .F.R § 302 3. In addition, with the 

approval of the C ouncil the Chairman may establish special ad hoc com m ittees and assign special projects to 

them . Id. The com m ittees, w hich include both governm ent and non-governm ent mem bers, are “vital to the 

C onference’s research and review process.” B reger at 826.

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A pplicability oj the Emoluments Clause to N on-G overnm ent M em bers o f ACU S

experts in administrative law and government.” ACUS Letter at 1. Some of the 

Conference members are partners in law firms that include foreign governments 

among their clients. Although we are informed that these Conference members do 

not personally represent foreign governmental clients and have no dealings with 

them, “their partnership arrangements provide that client revenues are pooled in 

some fashion so that the member receives a partnership distribution from the firm 

that includes some proportionate share of revenues generated by those partners 

who have the foreign government among their clients.” Id. at 2. ACUS asks 

whether such members are barred from Conference service by the Emoluments 

Clause.

As a threshold matter, ACUS does not dispute that Conference members from 

the private sector (who are unpaid for their services to the Conference) occupy an 

“Office of . . . Trust” within the meaning of the Emoluments Clause. We believe 

that Conference membership is such an office. To begin with, the Conference is a 

Federal agency established by statute. See 5 U.S.C. § 593. By virtue of their positions within that agency, Conference members are necessarily brought within the 

Clause. Although the Conference is an advisory committee as well as an agency, 

see ACUS Letter at 1, the April 1991 opinion stated that “Federal advisory committee members hold offices of profit or trust within the meaning of the Emoluments Clause,” 15 Op. O.L.C. at 68, and we do not understand ACUS to be 

contesting that view. Moreover, the Conference’s advice and recommendations 

have had (and were intended to have) a significant effect on the Government’s administrative processes. Indeed, Congress has from time to time assigned specific 

statutory missions to the Conference, requiring it to assist other Federal agencies 

and demonstrating that the Conference’s membership occupies a trusted and confidential role in governmental decisionmaking.3 Finally, under the Conference’s 

own by-laws, its members may be considered to be special government employees 

subject to Federal conflict of interest statutes and regulations. See 1 C.F.R. § 

302.5(a). Accordingly, we have no difficulty in concluding that the nongovernment members of the Conference occupy offices subject to the Clause. See

Offices of Trust, 15 Op. Att’y Gen. 187, 188 (1877) (Commissioners appointed by 

the President for the Centennial Exhibition hold offices of “Trust” under Clause 

because they were entrusted with duties “on account of their personal qualifications 

and fitness for the place.”); see also Application o f Emoluments Clause to PartTime Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96, 98 

(1986) (reviewing prior opinions).

' For exam ple, [he M agnuson-M oss W arranty Act, § 202(d) 15 U S C . § 57a note, directed AC US to 

study the Federal Trade C om m ission’s "hybrid” rulemaking procedures. The G overnm enl in the Sunshine 

Act § 3(a), 5 U S C . I) 552b(g), required agencies affected by the Act s open meeting requirem ents to consult with ACUS in developing their regulations The Equal Access to Justice Act § 203(a)(1), 5 U S C. § 

504(c)(1), required agencies to consult with ACUS before establishing uniform procedures for the subm ission and consideration of applications for awards o f fees and expenses See B reger at 835-36.

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ACUS suggests that the Emoluments Clause does not apply to a Conference 

member’s acceptance of a proportionate share of partnership earnings attributable 

to his or her law firm’s representation of a foreign government. ACUS argues that 

such payments are not emoluments “from” a foreign State, but rather from the 

partnership itself. ACUS Letter at 2-3. In support of that analysis, ACUS cites an 

opinion of this Office, Application o f the Emoluments Clause of the Constitution

and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156 (1982). In that 

opinion, we considered the question whether an employee of the Nuclear Regulatory Commission (“NRC”) was authorized to work on his leave time for an American consulting firm on a contract to design a nuclear power plant being built by an 

electrical commission of the Mexican government. The employee was to be paid 

by the consulting firm from funds received from the Mexican government in connection with the contract, although not all the proceeds of the contract were to go 

to him. On the facts, we concluded that “ultimate control, including selection of 

personnel, remains with the Mexican government,” so that “the interposition of the 

American corporation [does not] relieve[] the NRC employee of the obligations 

imposed by the Emoluments Clause.” Id. at 158-59. ACUS infers that this opinion 

“strongly suggests that the receipt of income from a partnership arrangement, 

standing alone, does not violate the Constitutional prohibition” on accepting 

emoluments from a foreign State. ACUS Letter at 2.

We agree with ACUS that our prior opinions suggest that when an employment 

relationship formally exists between a domestic employer and a Federal officeholder, the question whether the latter may be paid from foreign governmental 

funds that the employer receives turns on whether the employer is acting as a mere 

conduit for those funds. This test may be illustrated by contrasting the opinion that 

ACUS cites (which found that the foreign government would in effect be paying 

for the covered person’s services) with an earlier opinion that arrived at a different 

result. In Memorandum for John G. Gaine, General Counsel, Commodity Futures 

Trading Commission, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Expense Reimbursement in Connection with [X ’s] Trip

to Indonesia (Aug. 11, 1980), we considered a proposed contract under which 

Harvard University provided expert consultants to the government of Indonesia. 

The Indonesian government had no control over the selection of the experts and 

their payments, nor had it sought to influence the selection of experts during the 

years in which the consulting relationship had been in effect. We concluded in that 

case that the payment of the individual consultant would not be “from” the foreign 

government, but rather from the employing university.4 Id. at 5.

4 T he C om ptroller G eneral appears lo have adopted the sam e tests for determ ining w hether a proposed 

paym ent from a dom estic em ployer would violate the Em olum ents Clause. In 69 C om p Gen. 220 (1990), 

reconsidering and affirm ing 65 Comp Gen. 382 (1986), the G eneral A ccounting O ffice ruled that a retired 

m ilitary officer em ployed under a contract betw een a dom estic corporation and the Saudi A rabian Navy was 

subject to the Em olum ents C lause There w as sufficient evidence to conclude that the officer *lis in actuality 

an em ployee o f the Royal Saudi Naval Forces since this entity may control and supervise him as well as

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Applicability o f the Emoluments Clause to N on-G overnm ent M embers o f ACU S

In the present case, our inquiry focuses on the partnership relation rather than 

the employer-employee relation. “A partnership is generally said to be created 

when persons join together their money, goods, labor, or skill for the purpose of 

carrying on a trade, profession, or business and when there is community o f interest in the profits and losses.” Commissioner v. Tower, 327 U.S. 280, 286 (1946) 

(emphasis added); see also Meehan v. Valentine, 145 U.S. 611, 623 (1892) (“those 

persons are partners, who contribute either property or money to carry on a joint 

business for their common benefit, and who own and share the profits thereof in 

certain proportions”). There is typically no such community of interest or proportionate sharing of profits in the employment relation. Hence, our precedents in the 

employment area, while relevant and suggestive, are not directly on point.

ACUS contends that, “absent some direct personal contact or relationship between the Conference member and a foreign government,” the member should not 

be barred from accepting “a proportionate share of partnership earnings . . . solely 

because his or her firm has a foreign government among its clients.” ACUS Letter 

at 3. To the extent that our opinions in the employment area suggest that the 

proper test is whether the domestic employer or the foreign government has the 

power to control the covered person’s activity, those opinions lend some support to 

ACUS’s argument. A Conference member who did not personally represent a foreign government, and indeed had no personal contact with that client of the firm, 

could not be said to be subject to the foreign government’s “control” in his or her 

activities on behalf of the partnership. But we think that this consideration is not 

decisive. More important, in our view, is the fact that the Conference member 

would draw a proportionate share of the partnership’s pooled profits, which would 

include any profits the firm earned from representing its foreign governmental client. Because the amount the Conference member would receive from the partnership’s profits would be a function of the amount paid to the firm by the foreign 

government, the partnership would in effect be a conduit for that government. 

Thus, some portion of the member’s income could fairly be attributed to a foreign 

government. We believe that acceptance of that portion of the member’s partnership share would constitute a prohibited emolument.

ACUS points out that our April 1991 Opinion stated that 18 U.S.C. § 219 does 

not implicitly disqualify an individual from serving on an advisory committee simply because he or she is a partner at a firm that is required by statute to register as a 

foreign agent. See ACUS Letter at 3; 15 Op. O.L.C. at 66 n.4. ACUS urges that 

we adopt a similar conclusion with respect to the Emoluments Clause. Section 

219, a criminal statute, makes it an offense for a public official (including members 

of advisory committees covered by the Federal Advisory Committee Act, 5 U.S.C.

term inate his em ploym ent." 65 Comp. Gen at 385 Sim ilarly, the General A ccounting O ffice ruled that a 

retired military officer who was em ployed and paid by a dom estic corporation and then assigned to w ork for 

an Israeli governm ent instrum entality was w ithin the Clause It was shown that the dom estic corporation 

was in effect merely an employment agency, and that the officer was actually working for the foreign governm ent that had procured his services See 53 Com p G en 753 (1974).

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app. 2, §§ 1-16) to be or act as the agent of certain foreign principals. We think 

that the action of one partner acting as such a foreign agent cannot under this 

criminal statute be fairly imputed to another partner who serves on an advisory 

committee. But it by no means follows that a partner does not receive income from 

a foreign government within the meaning of the Emoluments Clause when an identifiable portion of his or her partnership draw can be attributed to the partnership’s 

fees from such a client.

Accordingly, we conclude that, absent the consent of Congress, the Emoluments 

Clause would prohibit members of the Conference from accepting a share of partnership earnings, where some portion of that share is derived from the partnership’s representation of a foreign government.

B.

ACUS further informs us that some private Conference members from time to 

time have among their personal clients foreign government-owned or -controlled 

instrumentalities, or business or proprietary corporations in which foreign governments have ownership interests. Other Conference members may from time to time 

receive payment for teaching at foreign public universities. ACUS Letter at 2.

ACUS suggests that payments accepted by private members for services rendered to a foreign government should not be considered to be forbidden emoluments when such a government is acting through commercial instrumentalities that 

it owns or controls, or through public academic institutions. See ACUS Letter at 3-

4. Such payments, ACUS suggests, would not not be accepted “from any . . . foreign State.”

We deal first with the question of foreign government-owned or -controlled 

commercial enterprises. In our opinion, such a corporation should indeed be considered to be a “foreign State” within the meaning of the Emoluments Clause. Accord 53 Comp. Gen. at 756 (corporation owned by government of Israel held 

within purview of Clause). It may be true, as ACUS says, that when foreign governments act in their commercial capacities, they do not exercise powers peculiar 

to sovereigns. See ACUS Letter at 3 (citing Alfred Dunhill of London, Inc. v. Republic o f Cuba, 425 U.S. 682, 704 (1976)); but see id. at 715 (Powell, J , concurring) (“the line between commercial and political acts of a foreign state often will 

be difficult to delineate”).5 But nothing in the text of the Emoluments Clause limits its application solely to foreign governments acting as sovereigns.

3 In D unhill, the C ourt declined to extend the A ct of State doctrine "to include the repudiation of a purely 

com m ercial obligation owed by a foreign sovereign or by one o f its com m ercial instrum entalities “ 425 U S. 

at 695. T he case is at best marginally relevant to the issues here. M oreover, underlying the presum ptive 

distinction betw een foreign governmental business corporations and the sovereigns that ow n or control them 

are concerns for “econom ic developm ent and efficient adm inistration,'’ reinforced by *‘[d]ue respect for the 

actions taken by foreign sovereigns and for principles of com ity.” First N a t'I Citv Bank v Banco Para El

C om ercio, 462 U.S. 611, 626 (1983) But even in com m ercial contexts where concerns for econom y and

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Applicability o f the Emoluments Clause to Non-Government M em bers o f A C U S

The language of the Emoluments Clause is both sweeping and unqualified. See

49 Comp. Gen. 819, 821 (1970) (the “drafters [of the Clause] intended the prohibition to have the broadest possible scope and applicability”). It prohibits those 

holding offices of profit or trust under the United States from accepting “any present, Emolument, Office, or Title, of any kind whatever” from “any . . . foreign 

State” unless Congress consents. U.S. Const, art. I, § 9, cl. 8 (emphasis added). 

There is no express or implied exception for emoluments received from foreign 

States when the latter act in some capacity other than the performance of their political or diplomatic functions. The decision whether to permit exceptions that 

qualify the Clause’s absolute prohibition or that temper any harshness it may cause 

is textually committed to Congress, which may give consent to the acceptance of 

offices or emoluments otherwise barred by the Clause.

Moreover, a foreign government’s ownership or control of a corporation may 

render the corporation that government’s agent. See First N at’l City Bank v. 

Banco Para El Commercio, 462 U.S. at 629. Indeed, as the Court has noted, “[a] 

typical government instrumentality, if one can be said to exist, is created by an 

enabling statute that prescribes the powers and duties of the instrumentality, and 

specifies that it is to be managed by a board selected by the government in a manner consistent with the enabling law.” Id. at 624 (emphasis added). We believe 

that the Emoluments Clause should be interpreted to guard against the risk that 

occupants of Federal office will be paid by corporations that are, or are susceptible 

of becoming, agents of foreign States, or that are typically administered by boards 

selected by foreign States. Accordingly, we think that, in general, business corporations owned or controlled by foreign governments will fall within the Clause.6

The question whether the Emoluments Clause extends to foreign public universities is somewhat more difficult. Our prior opinions on this subject have not been 

a seamless web. Thus, in Memorandum for H. Gerald Staub, Office of Chief 

Counsel, NASA, from Samuel A. Alito, Jr., Deputy Assistant Attorney General, 

Office of Legal Counsel, Re: Emoluments Clause Questions raised by NASA Scientist's Proposed Consulting Arrangement with the University of New South Wales

(May 23, 1986), we concluded that while the University of New South Wales was 

clearly a public institution, it was not so clear that it was a “foreign State” under 

the Emoluments Clause, given its functional and operational independence from 

the government of Australia and state political instrumentalities. Accordingly, we 

opined that the question posed there — whether a NASA employee could accept a

efficiency loom larger than they do here, the C ourt has been prepared to hold that presum ptive distinction 

overcome Id at 630-33

6 We acknowledge that the Foreign Gifts and Decorations Act, which provides C ongress’s consent to 

certain transactions otherw ise forbidden by the Em olum ents Clause, does not expressly subsum e corporations owned or controlled by foreign States within its definition o f a “foreign governm ent." See 5 U S.C § 

7342(a)(2) Rather, that definition extends prim arily to “any unit of foreign governm ental authority,” id. § 

7342(a)(2)(A), and it is plausible to argue that such corporations are not units of governm ental authority. 

However, we do not assume that the A ct’s definition is necessarily coextensive with the constitutional concept of a “foreign State.”

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Opinions o f the Office o f Legal Counsel

fee of $150 for reviewing a Ph.D. thesis — had to be answered by considering the 

particular circumstances of the case, in order to determine whether the proposed 

arrangement had the potential for corruption or improper foreign influence of the 

kind that the Emoluments Clause was designed to address. On other occasions, 

however, we have construed the Emoluments Clause to apply to public institutions 

of higher education in foreign countries.7

In support of its view that the Emoluments Clause does not apply to foreign 

public universities, ACUS argues that the Clause was designed to guard against the 

exercise of improper influence on Federal office-holders by the political or diplomatic agencies of foreign States, because payments by those agencies are most 

likely to create a conflict between the recipient’s Federal employment and his or 

her outside activity. See ACUS Letter at 4. Because public universities do not 

generally perform political or diplomatic functions, they ought not, on ACUS’s 

analysis, to be brought within the Clause. We think, however, that the contrary 

view is the better one.

To begin with, we reiterate that the language of the Emoluments Clause does 

not warrant any distinction between the various capacities in which a foreign State 

may act. Any emoluments from a foreign State, whether dispensed through its political or diplomatic arms or through other agencies, are forbidden to Federal office-holders (unless Congress consents). Further, it serves the policy behind the 

Emoluments Clause to construe it to apply to foreign States even when they act 

through instrumentalities which, like universities, do not perform political or diplomatic functions. Those who hold offices under the United States must give the 

government their unclouded judgment and their uncompromised loyalty. See 10 

Op. O.L.C. at 100. That judgment might be biased, and that loyalty divided, if 

they received financial benefits from a foreign government, even when those benefits took the form of remuneration for academic work or research.8 Thus, United 

States Government officers or employees might well find themselves exposed to 

conflicting claims on their interests and loyalties if they were permitted to accept 

employment at foreign public universities.

Finally, Congress has exercised its power under the Emoluments Clause to create a limited exception for academic research at foreign public institutions of 

learning. The Foreign Gifts and Decorations Act provides in part that Federal em7 See, e g , M em orandum for Files from Robert J. Delahunty, Acting Special Counsel, O ffice of Legal 

C ounsel, Re: A pplicability o f Emoluments C lause to E m ploym ent o f C F TC Attorney by East China Institute

o f P olitics a n d Law (A ug 27, 1992), M em orandum for Files from B arbara E Arm acost, Attorney-Adviser, 

Office o f Legal C ounsel, R e Emoluments C lause and A ppointm ent to the P resident's Committee on the Arts

and H um anities (Nov. 15, 1990) The G eneral Accounting O ffice has reached a sim ilar result See 44 

Com p G en 130 (1964) (retired Coast Guard officer subject to recall to active duty held not entitled to retirem ent pay for period in which he was teaching for the D epartm ent o f Education of the State o f Tasmania, 

A ustralia)

8 C onsistent w ith this view , we have opined that an em ployee of the National A rchives could not serve on an 

international com m ission of historians created and funded by the A ustrian G overnm ent to review the w artime record o f Dr. Kurt W aldheim , the President of A ustria See A pplicability oj Em olum ents Clause to Prop osed Service o j G overnm ent Employee on C om m ission o f International H istorians, 11 Op O .L.C 89(1987)

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Applicability o f the Emoluments Clause to Non-G overnm ent M embers o f AC U S

ployees may accept from foreign governmental sources “a gift of more than minimal value when such gift is in the nature of an educational scholarship.” 5 U.S.C. 

§ 7342(c)(1)(B).9 Thus, Congress has recognized that foreign governmental bodies may wish to reward or encourage scholarly or scientific work by employees of 

our Government, but has carefully delimited the circumstances in which Federal 

employees may accept such honors or emoluments. That suggests that Congress 

believes both that the Emoluments Clause extends to paid academic work by Federal employees at foreign public universities, and that the Clause’s prohibition on 

such activity should generally remain in force.

Accordingly, we conclude that foreign governmental entities, including public 

universities, can and presumptively do constitute instrumentalities of foreign States 

under the Emoluments Clause, even if they do not engage specifically in political 

or diplomatic functions.10

Conclusion

Non-government members of the Administrative Conference are prohibited by 

the Emoluments Clause from accepting a distribution from their partnerships that 

includes some proportionate share of the revenues generated from the firm’s foreign government clients.

Similarly, non-government members of the Conference are in general forbidden 

by the Emoluments Clause from accepting payments from commercial entities 

owned or controlled by foreign States. This prohibition also extends to the acceptance of payments for teaching at foreign universities that are instrumentalities of 

foreign States.

WALTER DELLINGER 

Assistant Attorney General

Office o f Legal Counsel

9 We have opined that this exception applied to an award o f approxim ately $24,000 by a foundation acting on behalf of the W est German G overnm ent to a scientist em ployed by the Naval Research Laboratory 

W e reasoned that a “program designed to honor United States scientists and enable them ‘to stay for an 

extended period at research institutes in the Federal Republic of G erm any to carry out research of the 

A w ardee's own choice’ seem s to be m the nature of an educational scholarship, acceptance of which C ongress has p erm uted" Letter for W alter T Skallerup, Jr., General Counsel, Departm ent of the N avy, from 

Robert B Shanks, Deputy Assistant Attorney General, Office of Legal Counsel at 4 (M ar. 17, 1983)

ACUS points out that it is an advisory com m ittee, and that “the nature o f an advisory com m ittee is that 

an individual — or even the committee as a whole — cannot determ ine the course of governm ental action ** 

ACUS Letter at 4 But, as we have noted above, ACUS is also, by statute, a Federal agency. M oreover, even 

considered solely as an advisory committee, ACUS could influence governm ental decisionm aking. See

Association o f Am Physicians and Surgeons, Inc v C linton, 997 F 2d 898, 913-14 (D.C. Cir. 1993) Hence, 

the advisory nature of ACUS does not render it immune from the possibility that a foreign State m ight exert 

im proper influence on and through it ACUS also objects that “ [ijt would be particularly unusual for a recom m endation by the Administrative Conference to be of significant interest to a foreign governm ent " 

ACUS Letter at 5 But there may be no way of fine-tuning the prohibitions on the acceptance of foreign governm ental em olum ents to reach precisely such “unusual" cases In any event, the C onstitution itself lays down 

a stark and unqualified rule, and leaves it to the legislative process to work out any needed qualifications

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