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 e m o r a n d u m O p i n i o n f o r t h e A c t in g A r c h i v i s t o f t h e U n i t 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 Austrian 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 Convention 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 also 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 

governments upon officers of the United States, based upon our historic policies 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 acceptance 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 indisputably 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 of the Emoluments Clause at the Virginia Convention 

as follows:

[This] restriction restrains any persons in office from accepting of any present or emolument, 

title or office, from any foreign prince or s ta te .. . . This restriction 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 prohibit any 

one in office from receiving or holding any emoluments from foreign states I believe, that if at 

that m oment, when we were in harm ony with the king o f France, we had supposed that he was 

corrupting our ambassador, it might have disturbed that confidence, and diminished that mutual 

friendship, which contributed to carry us through the war.

3 Farrand at 327.

2 See 21 Op. A tt’y Gen. 219 (1909) (postal clerk holds an office of profit or trust for Emoluments Clause 

purposes, because he “holds his appointment from a head o f a Department . . . , receives for his services a 

fixed com pensation from moneys appropriated for the purpose by Congress, . . . has regularly prescribed 

services to perform , and his duties are continuing and permanent, and not occasional and temporary”). See

also “A pplication o f Em oluments Clause to Part-Time C onsultant for the Nuclear Regulatory Commission,”

10 Op. O.L.C. 93 (1986) (part-time staff consultant for NRC holds a position requiring his undivided loyalty 

to the United States).

3 Cf. “Assum ption by People’s Republic of China of Expenses of U.S. Delegation,” 2 Op. O.L.C. 345 

(1978) (Em olum ents Clause does not prohibit assumption by the People’s Republic of China of the expenses 

o f an official U.S. delegation).

4 Even 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 Framers in the Emoluments Clause would still be applicable. In this 

regard, we note that the Foreign Gifts and Decorations Act, by which Congress gave its express consent for 

officials to accept gifts from foreign countries under certain limited circumstances, includes within its 

definition of “foreign government” “any international or multinational organization whose membership is 

com posed of any unit o f foreign government.” 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 Emoluments 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 official 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” commission 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 h a r l e s J. C o o p e r

Assistant Attorney General

Office of Legal Counsel

5 Our conclusion in this situation is reinforced by the circumstances surrounding the C om m ission’s creation 

and its mandate. We do not, however, intend our conclusion respecting the applicability of the Emoluments 

Clause to suggest that Mr. A would be subjected to improper foreign influence, or otherwise to leave any 

negative inference respecting the integrity of the service he would render as a member of the Commission.

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