b'Availability of Judgment Fund in Cases\nNot Involving a Money Judgment Claim\nThe Judgment Fund is not available for suits that do not seek to require the government to\nmake direct payments of money to individuals, but merely would require the government\nto take actions that result in the expenditure of government funds.\nThe Judgment Fund is available: (1) for the payment of final \xe2\x80\x9cmoney judgments" (but not\nfor \xe2\x80\x9cnon-money judgments\xe2\x80\x9d) whose payment is not \xe2\x80\x9cotherwise provided for\xe2\x80\x9d; (2) for the\npayment of tort settlements covered by statutory provisions listed in 31 U.S.C. \xc2\xa7 1304(a);\nand (3) for the payment of non-tort settlements authorized by the Attorney General or his\ndesignee, whose payment is not \xe2\x80\x9cotherwise provided for,\xe2\x80\x9d if and only if the cause of\naction that gave rise to the settlement could have resulted in a final money judgment.\n\nApril 14, 1989\nM em orandum O pinion\n\nfo r the A ssistant A ttorney\nC ivil D ivision\n\nG eneral\n\nThis memorandum responds to your request1 for the opinion of this\nOffice concerning the availability of the permanent appropriation estab\xc2\xad\nlished pursuant to 31 U.S.C. \xc2\xa7 1304 (\xe2\x80\x9cthe Judgment Fund\xe2\x80\x9d) for the pay\xc2\xad\nment of judgments or settlements not involving \xe2\x80\x9cmoney judgment\xe2\x80\x9d\nclaims, i.e., \xe2\x80\x9ccases that are not framed in typical money damages terms\n[that] may nevertheless, at bottom, seek the expenditure of money by the\ngovernment and are capable of compromise on that basis.\xe2\x80\x9d Civil\nMemorandum at 1. We conclude: (1) that fined judgments whose payment\nis not \xe2\x80\x9cotherwise provided for\xe2\x80\x9d2 are payable from the Judgment Fund if\n1Memorandum for Douglas W Kmiec, Acting Assistant Attorney GeneraJ, Office of Legal Counsel, from\nJohn R Bolton, Assistant Attorney General, Civil Division, Re: Use o f the Judgment Fund fo r Settlement\no f Cases or Payment o f Judgments that Do Not Involve a \xe2\x80\x9cMoney Judgment\xe2\x80\x9d Claim (July 21, 1988)\n(\xe2\x80\x9cCivil Memorandum\xe2\x80\x9d)\n2 We reaffirm this Office\xe2\x80\x99s traditional position that a payment is \xe2\x80\x9cotherwise provided for\xe2\x80\x9d in two different\nsituations. First, when a statute provides that particular kinds of judgments are to be paid from agency\nappropriations, the \xe2\x80\x9cotherwise provided for\xe2\x80\x9d criterion is satisfied with respect to judgments and settle\xc2\xad\nments. Second, judgments or settlements incurred by agencies in the course of certain \xe2\x80\x9cbusiness-type\xe2\x80\x9d pro\xc2\xad\ngrams are also \xe2\x80\x9cotherwise provided for.\xe2\x80\x9d See Memorandum for D Lowell Jensen, Acting Deputy Attorney\nGeneral, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel at 7-11 (Feb. 24,\n1984); Memorandum for Abraham D Sofaer, Legal Adviser, Department of State, from Charles J Cooper,\nAssistant Attorney General, Office of Legal Counsel, Re- Availability of Judgment Fund to Pay\nCompivmise Settlement o f Iraman Claim at 4-5 (Feb. 16, 1988) The Comptroller General also has\nendorsed this two-pronged test for determining whether a payment is \xe2\x80\x9cotherwise provided for.\xe2\x80\x9d See General\nContinued\n98\n\n\x0cthey require the government to make direct payments of money to indi\xc2\xad\nviduals, but not if they merely require the government to take actions that\nresult in the expenditure of government funds; (2) that a settlement is\npayable from the Judgment Fund if it involves a tort claim statutorily rec\xc2\xad\nognized in 31 U.S.C. \xc2\xa7 1304(a), and its \xe2\x80\x9cpayment is not otherwise provid\xc2\xad\ned for\xe2\x80\x9d; and (3) that a non-tort settlement is payable from the Judgment\nFund under 28 U.S.C. \xc2\xa7 2414 only if the litigation giving rise to the settle\xc2\xad\nment could have required the direct payment of money by the govern\xc2\xad\nment, had it resulted in a final judgment.\nI. Analysis\n\nWe start as always with the plain language of the statutory text at issue.\nThe Judgment Fund statute, 31 U.S.C. \xc2\xa7 1304, provides in pertinent part:\n(a) Necessary amounts are appropriated to pay final judg\xc2\xad\nments, awards, compromise settlements, and interest and\ncosts specified in the judgments or otherwise authorized by\nlaw when \xe2\x80\x94\n(1) payment is not otherwise provided for;\n(2) payment is certified by the Comptroller General;\nand\n(3) the judgment, award, or settlement is payable \xe2\x80\x94\n(A) under section 2414, 2517, 2672, or 2677 of title\n28;\n(B) under section 3723 of this title;\n(C) under a decision of a board of contract\nappeals; or\n(D) in excess of an amount payable from the\nappropriations of an agency for a meritorious\nclaim under section 2733 or 2734 of title 10,\nsection 715 of title 32, or section 203 of the\nNational Aeronautics and Space Act of 1958\n(42 U.S.C. 2473).\nSection 1304 thus imposes three requirements that must be met before\nthe Judgment Fund may be utilized. First, the judgment must be payable\npursuant to one of a number of specified sections of the U.S. Code.\n2 (...continued)\nAccounting Office, Principles o f Fedeinl Appropriations Law 12-14 (1982) (describing first test) (\xe2\x80\x9cGAO\nManual\xe2\x80\x9d), 62 Comp Gen. 12, 14 (1982) (descnbing second test) (Although the opinions of the Comptroller\nGeneral, an agent of Congress, are not binding on the executive branch, we regularly consult these opin\xc2\xad\nions for their informational and analytic value)\n99\n\n\x0cSecond, there must not be another source of funds available to pay the\njudgment. Finally, payment of the judgment must be certified by the\nComptroller General.\nThe final requirement \xe2\x80\x94 the necessity of certification by the\nComptroller General \xe2\x80\x94 does not appear to impose any additional sub\xc2\xad\nstantive requirements on access to the judgment fund. The Comptroller\nGeneral\xe2\x80\x99s certification apparently follows from satisfaction of the other\ntwo requirements and completion of the necessary paperwork.3 Thus, we\nneed only determine whether the first condition precludes the payment\nof non-money judgment claims from the Judgment Fund. (The second\ncondition is analyzed in note 1, supra.)\nTwo distinct categories of claims are payable from the Judgment Fund:\nfinal judgments and settlements. We examine those categories in turn.\nA. Final Judgments\nAs indicated above, 31 U.S.C. \xc2\xa7 1304(a) plainly states that \xe2\x80\x9c[n]ecessary\namounts are appropriated to pay final judgments, awards, compromise\nsettlements, and interest and costs ... when ... the judgment, award, or\nsettlement is payable\xe2\x80\x9d under any one of a specified list of statutory pro\xc2\xad\nvisions. The primary statutory provision4 in that list that applies to final\njudgments is the first paragraph of 28 U.S.C. \xc2\xa7 2414, which states (empha\xc2\xad\nsis added):\nExcept as provided by the Contract Disputes Act of 1978,\npayment of final judgments rendered by a district court or\nthe Court of International Trade against the United States\nshall be made on settlements by the General Accounting\nOffice. Payment offinal judgments rendered by a State or\nforeign court or tribunal against the United States, or\nagainst its agencies or officials upon obligations or liabili\xc2\xad\nties of the United States, shall be made on settlements by\nthe General Accounting Office after certification by the\nAttorney General that it is in the interest of the United\nStates to pay the same.\n3 GAO itself takes this position, stating that the requirement of certification by the Comptroller General\n\xe2\x80\x9cis an essentially ministerial function and does not contemplate review of the merits of a particular judg\xc2\xad\nm ent B-129227 (Dec. 22, 1960); see also 22 Comp. Dec. 520 (1916), 8 Comp Gen 603, 605 (1929) " GAO\nManual, supra note 2, at 12-2. Indeed, w e believe that were the requirement of certification to be other\nthan a ministerial function it would raise serious questions under the Supreme Court\xe2\x80\x99s holding in\nBowsker v. Synar, 478 U.S. 714 (1986) (Congress cannot constitutionally assign to the Comptroller\nGeneral, an arm of Congress, the duty of executing the laws)\n4Two other provisions authorize the payment of final judgments in specific types of cases, viz , 28\nU.S.C. \xc2\xa7 2517 (authorizing the payment of final judgments rendered by the United States Claims Court\nagainst the United States); and 31 U S.C. \xc2\xa7 1304(a)(3)(C) (authorizing the payment of final judgments\nunder \xe2\x80\x9cdecisionls] of ... board[s] of contract appeals\xe2\x80\x9d).\n100\n\n\x0cSince section 2414 encompasses \xe2\x80\x9cpayment offinal judgments," by def\xc2\xad\ninition it only provides for disbursements from the Judgment Fund for\njudgments that are payable, i.e., judgments that, by their terms, require\nthe United States to pay specified sums of money to certain parties.5\nApplying this principle, final judgments that impose costs on the govern\xc2\xad\nment, but do not require the United States to make specific cash dis\xc2\xad\nbursements, would appear to fall outside the scope of section 2414. Thus,\nfor example, final judgments that required the United States to furnish\nsubsidized housing,6 or that required the United States to correct struc\xc2\xad\ntural defects in housing,7 would not be eligible for payment from the\nJudgment Fund (even though they might impose readily ascertainable\nmoney costs), because they would not require the United States to make\ncash payments to individuals. In sum, under our analysis, final court judg\xc2\xad\nments against the United States that require anything other than the\ndirect payment of specified sums of money may not be paid from the\nJudgment Fund.8\n6The legislative history of section 2414 supports this conclusion, which is drawn from the plain mean\xc2\xad\ning of the statute. At the time the Judgment Fund statute was originally enacted in 1956 (Supplemental\nAppropnation Act of 1957, Pub. L. No 84-814, \xc2\xa7 1302, 70 Stat. 678, 694 (1956)), section 2414 only covered\nfinal judgments rendered by a federal district court When the first paragraph of section 2414 was revised\nin 1961 to authorize the payment of judgments rendered by state and foreign courts (previously that para\xc2\xad\ngraph had only authorized the payment of federal court judgments), and the payment of settlements, the\nHouse and Senate Judiciary Committee Reports dealing with that revision favorably incorporated by ref\xc2\xad\nerence a Justice Department letter that discussed the use of the Judgment Fund to pay judgments. With\nrespect to judgments, that letter stated in pertinent part:\nPrior to the enactment of the [judgment fund statute],. a large percentage of the judgments\nrendered against the United States were payable only upon the enactment of specific appro\xc2\xad\npriations legislation for that purpose The enactment of that statute has materially reduced the\nadministrative and legislative burdens involved in effecting the payments of judgments ... and\nit has substantially shortened the interval of the time between the entry of judgments and their\nsatisfaction The legislation has both reduced the interest charges accruing upon judgments\nagainst the United States and the irritations inevitably associated with the delays occasioned\nby the former method of payment. The attached draft bill would .. provide a corresponding\nsimplification in the procedures for the payment of judgments of State and foreign courts\nS. Rep No 733, 87th Cong., 1st Sess 1-2 (1961), reprinted %n 1961 U.S.C.C A N 2439, 2439; H.R. Rep. No\n428, 87th Cong., 1st Sess 2 (1961).\nIn short, this discussion manifests an understanding that the Judgment Fund was designed to effect pay\xc2\xad\nments of Final judgments without the need for the enactment of specific appmpriations bills, and to pre\xc2\xad\nvent the accnial o f interest on unpaid final judgments That understanding, which centers solely on m on\xc2\xad\netary judgments (judgments that previously required specific appropriations and on which interest could\naccrue), supports the conclusion that the Judgment Fund is to be tapped for final judgments requiring the\nUnited States to pay specified sums of money Our interpretation squares with both the Civil Division\xe2\x80\x99s\nview and the Comptroller General\xe2\x80\x99s view of the legislative history. See Memorandum for Michael Jay\nSinger, Assistant Director, Appellate Staff, Civil Division, from Irene M. Solet, Attorney, Appellate Staff, Re:\nPossible Use o f the Judgment Fund \xe2\x80\x9d For Payment o f a Settlement in Garrett v City o f Hamtramck at\n2 (July 12,1988) (\xe2\x80\x9cSolet Memorandum\xe2\x80\x9d) (\xe2\x80\x9cCongress contemplated that the fund would be used for money\njudgments"), B-193323, 1980 WL 17186 (C G ), at *3 (Jan 31, 1980) (the judgment fund was \xe2\x80\x9cestablished\nfor the purpose of paying money judgments against the United States\xe2\x80\x9d) (emphasis added)\n6See Solet Memorandum, supra note 5, at 3.\n7See B-193323, discussed in Solet Memorandum, supra note 5, at 2-3.\n8 Judgments rendered by the United States Claims Court (which are money judgments) and by boards\nof contract appeals are also specifically made payable from the Judgment Fund. See supra note 4\n101\n\n\x0cB. Settlements\nSeveral statutory provisions found in the Judgment Fund statute pro\xc2\xad\nvide for the payment of settlements, including 28 U.S.C. \xc2\xa7 2672 (authoriz\xc2\xad\ning the settlement of \xe2\x80\x9cany claim for money damages\xe2\x80\x9d against the United\nStates for torts committed by the employee of any federal agency while\nacting within the scope of his employment); 28 U.S.C. \xc2\xa7 2677 (authorizing\nthe Attorney General to \xe2\x80\x9carbitrate, compromise, or settle any claim cog\xc2\xad\nnizable under\xe2\x80\x9d 28 U.S.C. \xc2\xa7 1346(b), the jurisdictional provision that allows\ncourts to hear tort claims for money damages against the United States);\nand 31 U.S.C. \xc2\xa7 3723 (authorizing agency heads to settle small tort claims\nfor damage or loss, to private property due to a federal officer\xe2\x80\x99s or\nemployee\xe2\x80\x99s negligence). In addition, the Judgment Fund is available for\nthe payment of the \xe2\x80\x9cexcess of an amount payable from the appropriations\nof an agency for a meritorious claim under 10 U.S.C. \xc2\xa7\xc2\xa7 2733-2734\xe2\x80\x9d\n(authorizing the Secretaries of military departments to settle tort claims\narising out of the actions of their employees, at home or abroad), 32\nU.S.C. \xc2\xa7 715 (authorizing the Secretary of the Army or the Secretary of the\nAir Force to settle certain tort claims arising out of certain actions by\nmembers of the Army or Air National Guard), and 42 U.S.C. \xc2\xa7 2473\n(authorizing the NASA Administrator to settle certain tort claims arising\nout of NASA\xe2\x80\x99s activities). In short, 31 U.S.C. \xc2\xa7 1304(a) contains a variety\nof specific provisions authorizing the payment of a variety of tort settle\xc2\xad\nments from the Judgment Fund. The primary provision authorizing the\npayment of settlements from the Judgment Fund, is, however, 28 U.S.C. \xc2\xa7\n2414, the third paragraph of which provides:\nExcept as otherwise provided by law, compromise set\xc2\xad\ntlements of claims referred to the Attorney General for\ndefense of imminent litigation or suits against the United\nStates, or against its agencies or officials upon obligations\nor liabilities of the United States, made by the Attorney\nGeneral or any person authorized by him, shall be settled\nand paid in a manner similar to judgments in like causes\nand appropriations or funds available for the payment of\nsuch judgments are hereby made available for the payment\nof such compromise settlements.9\nIn short, under the third paragraph of section 2414, compromise set\xc2\xad\ntlements of suits against the United States, its agencies, or officials, made\nby the Attorney General or any person he authorizes, \xe2\x80\x9cshall be settled and\n9 The second paragraph of section 2414, not reproduced in this memorandum, is not relevant to the\nquestions addressed herein That paragraph merely specifies that the Attorney General\xe2\x80\x99s decision not to\nappeal a court judgment renders it final.\n102\n\n\x0cpaid in a manner sim ilar to judgments in like causes." (Emphasis\nadded.) By its very terms, this paragraph contemplates that the manner\nof payment for a settlement approved by the Attorney General or his\ndesignee turns upon the manner in which a \xe2\x80\x9cjudgment[] in [a] like\ncause[]\xe2\x80\x9d would have been paid. Since the term \xe2\x80\x9clike cause[]\xe2\x80\x9d is not statu\xc2\xad\ntorily defined,10and its meaning is not self-evident, we turn to the princi\xc2\xad\nple of statutory construction that statutory provisions \xe2\x80\x9crelating to the\nsame person or thing or having a common purpose\xe2\x80\x9d are in \xe2\x80\x9cpari materia\n[and] are to be construed together,\xe2\x80\x9d i.e., in a consistent manner. Black\xe2\x80\x99s\nLaw Dictionary 711 (5th ed. 1979).11 Applying this principle, we turn to\nthe first paragraph of section 2414 (which shares with the third paragraph\nthe \xe2\x80\x9ccommon purpose\xe2\x80\x9d of delineating the availability of the Judgment\nFund) to gain insight into the manner in which judgments are to be paid.\nAs previously discussed, the first paragraph makes it plain that final judg\xc2\xad\nments requiring the direct payment of money are payable from the\nJudgment Fund, while non-money judgments must be paid from other\nsources. Accordingly, it is logical to infer that the reference to the \xe2\x80\x9cman\xc2\xad\nner (of payment) similar to judgments in like causes\xe2\x80\x9d in the third para\xc2\xad\ngraph of section 2414 is a shorthand term for linking the payment of a set\xc2\xad\ntlement to the payment either of a money judgment or of a non-money\njudgment. Employing this logic, if the underlying \xe2\x80\x9ccause[]\xe2\x80\x9d of a settlement\ncould have led to a money judgment, had no settlement been reached,\nthen the settlement, similar to the judgment, is payable from the\nJudgment Fund. On the other hand, if the underlying \xe2\x80\x9ccause[]\xe2\x80\x9d would\nhave led to a non-money judgment, then the settlement, similar to the\njudgment, is not payable from the Judgment Fund. It therefore follows\nthat, in determining whether a proposed settlement is payable from the\nJudgment Fund, the Attorney General or his designee should examine the\nunderlying cause of action, and decide whether the rendering of a final\njudgment against the United States under such a cause would have\nrequired a payment from the Judgment Fund.\n10The only congressional discussion of the phrase referring to \xe2\x80\x9clike causes\xe2\x80\x9d is a brief reference in the\nSenate and House Judiciary Committee Reports reiterating the plain statutory language H R Rep. No.\n428, supra note 5, at 3 (\xe2\x80\x9ccompromises effected by the Attorney General or any person authorized by him\nshall be settled and paid in the same manner as judgments in like causes\xe2\x80\x9d), S. Rep. No 733, repnnted in\n1961 U S.C C A.N. at 2441, supra note 5, at 3 (same).\n11The federal courts have recognized that when statutes are in pan materia they should be construed\nconsistently, if at all possible See, e.g., Haig v. Agee, 453 U S. 280, 300-01 (1981) (statute making it\nunlawful to travel abroad without a passport even in peacetime must be read in pan materia with \xe2\x80\x94\ni e., in a manner harmonious with \xe2\x80\x94 the Passport Act), FAIC Securities, Inc v. United States, 768\nF.2d 352, 363 (D C. Cir 1985) (National Housing Act and Federal Insurance Corporation Act are in pari\nmateria since they share \xe2\x80\x9cthe common purpose of insuring funds placed in depository institutions,\xe2\x80\x9d\nand, therefore, \xe2\x80\x9cthe two statutes .. cannot be construed to reach different results\xe2\x80\x9d); United States v\nStauffer Chemical Co , 684 F.2d 1174, 1184, 1188 (6th Cir 1982), cert granted, 460 U.S. 1080 (1983),\naff\xe2\x80\x99d, 464 U.S 165 (1984) (provisions in pari m atena \xe2\x80\x9cshould be given the same meaning . section 114\nof the Clean Air Act and section 308 of the Clean Water Act are in pan materia, and (therefore) should\nbe interpreted the same way").\n\n103\n\n\x0cOur conclusion that section 2414 only authorizes Judgment Fund dis\xc2\xad\nbursements for settlements of causes that could have resulted in money\njudgments is consistent with the historical development of the Judgment\nFund statute. When the Judgment Fund statute was enacted in 1956, only\nthe payment of money judgments was provided for, see supra note 5. Had\nCongress wished to provide for the payment from the Judgment Fund of\nall settlements when it amended the Judgment Fund statute in 1961, pre\xc2\xad\nsumably it would specifically have so indicated. Its failure to do so sup\xc2\xad\nports the conclusion that in extending the Judgment Fund statute to\nreach settlements, Congress believed it was only bringing within that\nstatute\xe2\x80\x99s ambit settlements of causes that could have resulted in\nJudgment Fund disbursements, had such causes resulted in final money\njudgments, rather than settlements.\nFinally, any conclusion that would permit the Judgment Fund to pay\nout settlements in cases in which it would not pay out judgments would\nprovide agencies with an incentive to urge settlement of cases in order to\navoid payment from agency funds. We would not lightly attribute to\nCongress an intent to create a structure that might encourage settlements\nthat would not otherwise be in the interest of the United States.\nII. Conclusion\nFor the foregoing reasons, we conclude that the Judgment Fund is\navailable: (1) for the payment of final \xe2\x80\x9cmoney judgments\xe2\x80\x9d (but not \xe2\x80\x9cnon\xc2\xad\nmoney judgments\xe2\x80\x9d) whose payment is not \xe2\x80\x9cotherwise provided for\xe2\x80\x9d; (2)\nfor the payment of tort settlements covered by statutory provisions listed\nin 31 U.S.C. \xc2\xa7 1304(a); and (3) for the payment of non-tort settlements\nauthorized by the Attorney General or his designee, whose payment is\n\xe2\x80\x9cnot otherwise provided for,\xe2\x80\x9d if and only if the cause of action that gave\nrise to the settlement could have resulted in a final money judgment.\nDOUGLAS W. KMIEC\nAssistant Attorney General\nOffice of Legal Counsel\n\n104\n\n\x0c'


b'Calculating Rate of Pay of Department of Justice Employees\nfor Purposes of \xe2\x80\x9c Covered Persons\xe2\x80\x9d Determination Under\nIndependent Counsel Act\nThe term \xe2\x80\x9c rate o f p a y \xe2\x80\x9d in the section of th e Independent C ounsel Act that indicates w hich D epartm ent\no f Ju stice em p lo y ees are \xe2\x80\x9c covered p erso n s\xe2\x80\x9d does not include \xe2\x80\x9c locality-based com parability pay\xc2\xad\nm e n ts\xe2\x80\x9d under 5 U S.C \xc2\xa75 3 0 4 .\n\nApril 2, 1997\nM\n\nem orandum\n\nO p in io n\n\nfo r t h e\n\nA c t in g D e p u t y A t t o r n e y G e n e r a l\n\nUnder 28 U.S.C. \xc2\xa7 591(b)(4) (1994), the class of \xe2\x80\x9c covered persons\xe2\x80\x9d subject\nto investigation by an Independent Counsel includes \xe2\x80\x9c any individual working in\nthe Department of Justice who is compensated at a rate of pay at or above level\nIII of the Executive Schedule under section 5314 of title 5.\xe2\x80\x9d You have asked\nwhether the term \xe2\x80\x9c rate of pay\xe2\x80\x9d in this section includes \xe2\x80\x9c [l]ocality-based com\xc2\xad\nparability paym ents\xe2\x80\x9d under 5 U.S.C. \xc2\xa75304 (1994). We conclude that it does\nnot.\nUnder provisions in the Ethics in Government Act of 1978, Pub. L. No. 95521, \xc2\xa7601, 92 Stat. 1824, 1867 (codified as amended at 28 U.S.C. \xc2\xa7\xc2\xa7591-599\n(1994 & Supp. II 1996)) ( \xe2\x80\x9c Act\xe2\x80\x9d or \xe2\x80\x9c Independent Counsel Act\xe2\x80\x9d ), an Independent\nCounsel may be appointed to investigate alleged crimes by certain high-level offi\xc2\xad\ncials of the government.1 In some instances, the officials subject to such investiga\xc2\xad\ntions are identified by their level o f pay. The Act reflects the judgment that, in\nthe Department of Justice, officials whose rate of pay equals or exceeds Level\nIII of the Executive Schedule \xe2\x80\x9c are those . . . closest to the Attorney General\nand the President and would, therefore, present the most serious conflict of interest\nof an institutional nature if the Department of Justice were to have to investigate\nand prosecute serious criminal allegations against any of these individuals.\xe2\x80\x9d S.\nRep. No. 95-170, at 53 (1977). The \xe2\x80\x9c covered persons\xe2\x80\x9d include the Deputy\nAttorney General, the Associate Attorney General, and the Solicitor General. See\n5 U.S.C. \xc2\xa75313 (1994 & Supp. II 1996); id. \xc2\xa75314. The Act also specifies that\nthe Assistant Attorneys General are \xe2\x80\x9c covered persons,\xe2\x80\x9d even though they are paid\nless than the amount for Level III. See 28 U.S.C. \xc2\xa7 591(b)(4); 5 U.S.C. \xc2\xa75315.\nThe Act, however, does not make clear whether the \xe2\x80\x9c rate of pay\xe2\x80\x9d that identifies\nofficials subject to investigation by an Independent Counsel refers to (1) total\npay, including locality-based adjustments, or (2) \xe2\x80\x9c basic pay,\xe2\x80\x9d exclusive o f such\n\'T he application of the Act to high-level officials is sometimes called the \xe2\x80\x9c mandatory coverage\xe2\x80\x9d of the Act\nSee, e.g , S Rep. No 103-101, at 19 (1993), reprinted m 1994 U S C C A N 748, 763 (\xe2\x80\x9c Senate Report\xe2\x80\x9d ) The\nAct also allows the Attorney General to seek appointment of an Independent Counsel where she \xe2\x80\x9c determines that\nan investigation or prosecution of a person by the Department of Justice may result in a personal, financial, or\npolitical conflict of interest,\xe2\x80\x9d 28 U S C \xc2\xa7 591(c)(1) (1994), or where the allegation is against a member of Congress,\nid \xc2\xa7 591(c)(2)\n\n68\n\n\x0cCalculating Rate o f Pay o f Department o f Justice Employees fo r Purposes o f \xe2\x80\x9cCovered P ersons"\nDetermination Under Independent Counsel Act\n\nadjustments. If locality-based adjustments are excluded, officials in the Senior\nExecutive Service are not \xe2\x80\x9c covered persons.\xe2\x80\x9d The rate of pay for such officials,\nexcluding locality-based adjustments, can be no higher than $115,700 a year, but\nthe benchmark for coverage \xe2\x80\x94 Level III of the Executive Schedule \xe2\x80\x94 is a yearly\npay rate of $123,100. See Exec. Order No. 13033, 61 Fed. Reg. 68,987, 68,992\n(1996). On the other hand, if locality-based adjustments are included, officials\nin the top three levels of the Senior Executive Service (ES-4, ES-5, and E S 6) could become \xe2\x80\x9c covered persons,\xe2\x80\x9d depending on the area of the country where\nthey work.2\nWe believe that locality-based adjustments do not count as part of the \xe2\x80\x9c rate\nof pay\xe2\x80\x9d under 28 U.S.C. \xc2\xa7591. When Congress provided for locality-based pay\nin the Federal Employees Pay Comparability Act of 1990, 5 U.S.C.\n\xc2\xa7 5304(d)(1)(A), it aimed at \xe2\x80\x9c pay parity, between Federal employees and their\nnonfederal counterparts on a locality-by-locality basis.\xe2\x80\x9d H.R. Conf. Rep. No. 101\xe2\x80\x94\n906, at 87 (1990) (calling for comparison with the \xe2\x80\x9c rates of pay generally paid\nto non-Federal workers for the same levels of work within each pay locality\xe2\x80\x9d ).\nA locality-based adjustment, therefore, corresponds to the supply-and-demand\nconditions in the particular location, rather than the importance of the official\nreceiving the adjustment or his or her closeness to the Attorney General. As a\nconsequence, interpreting \xe2\x80\x9c rate of pay\xe2\x80\x9d to include locality-based adjustments\nwould distort the design of the Act. Persons otherwise not covered by the Act\nwould become \xe2\x80\x9c covered persons\xe2\x80\x9d as a result of the location where they work,\nrather than the position they occupy. Such a result would not only fail to serve\nthe purposes of the Act, but would actually be contrary to them as well. A higherlevel official, paid as an E S-6 and working in an area to which a specific localitybased adjustment would not be applicable, would not be a \xe2\x80\x9c covered person,\xe2\x80\x9d\nwhile a lower -level official, paid as an ES-4 and (for example) working in\nHouston, would be \xe2\x80\x9c covered.\xe2\x80\x9d 3\nInclusion of locality-based adjustments is also inconsistent with Congress\xe2\x80\x99s\napparent intent, insofar as it can be discerned from the legislative history. When\nCongress most recently reauthorized the Independent Counsel Act in 1994, it\nassumed that approximately fifty officials would come within the mandatory cov\xc2\xad\nerage of the Act. Senate Report at 19, reprinted in 1994 U.S.C.C.A.N. at 764.\nIf locality-based adjustments were included in the \xe2\x80\x9c rate of pay\xe2\x80\x9d under 28 U.S.C.\n\xc2\xa7 591, the number of additional \xe2\x80\x9c covered persons\xe2\x80\x9d in the Federal Bureau of Inves\xc2\xad\ntigation alone would double the total in the government as a whole otherwise\nreached by the Act. See Memorandum for Michael R. Stiles, United States\n2 For example, an official paid as an ES-4 who lived m the area of Houston-Galveston-Brazona, Texas, would\nreceive a locality-based increase of 11 52 percent, which would bring his or her salary to approximately $124,790.\nThis amount would exceed the $123,100 benchmark Exec Order No 13033,61 Fed Reg. at 68,996\n3 At present, there is a locality-based comparability adjustment of 4.81 percent for all parts of the United States\nnot covered by specific adjustments. See Exec Order No 13033, 61 Fed. Reg at 68,996 However, an official\npaid at the ES-6 level who benefits from this general adjustment would still be making less than the Level 111\nbenchmark.\n\n69\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nAttorney, and H. Marshall Jarrett, Chief, Criminal Division, from Steven W. Pelak\nand Carol Fortine, Assistant United States Attorneys, Re: Additional Information\nRegarding the Scope o f the Independent Counsel Statute at 3 (Mar. 18, 1997).\nSuch a broad sweep would be inconsistent with Congress\xe2\x80\x99s understanding.\nWe appreciate that there is a reasonable argument on the other side. Congress\nadopted the phrase \xe2\x80\x9c rate of pay,\xe2\x80\x9d rather than \xe2\x80\x9c rate of basic pay,\xe2\x80\x9d a term of\nart specifically meaning \xe2\x80\x9c the rate o f pay . . . before any deductions and exclusive\nof additional pay of any other kind, such as locality-based comparability pay\xc2\xad\nments.\xe2\x80\x9d 5 C.F.R. \xc2\xa7 534.401(b)(3) (1996). Elsewhere, Congress has distinguished\nbetween \xe2\x80\x9c rate of basic pay\xe2\x80\x9d and \xe2\x80\x9c total\xe2\x80\x9d pay, including comparability payments,\nsee 5 U.S.C. \xc2\xa7 5304(g)(1), or, where it has wanted to include locality-based adjust\xc2\xad\nments as part of \xe2\x80\x9c basic pay\xe2\x80\x9d for specific purposes, such as retirement and insur\xc2\xad\nance, has done so expressly, see id. \xc2\xa7 5304(c)(2). By not employing the term \xe2\x80\x9c rate\nof basic pay,\xe2\x80\x9d but using \xe2\x80\x9c rate o f pay\xe2\x80\x9d instead, Congress arguably meant to\ninclude comparability payments in determining the coverage of the Act. Indeed,\nwhen Congress set up the current system of locality-based comparability adjust\xc2\xad\nments, it expressly provided that the post-employment restrictions dictating a oneyear \xe2\x80\x9c cooling o f f \xe2\x80\x99 period would apply to (among others) persons \xe2\x80\x9c employed\nin a position . . . for which the basic rate o f pay, exclusive of any locality-based\npay adjustment,\xe2\x80\x9d is above a specified level. 18 U.S.C. \xc2\xa7 207(c)(2)(A)(ii) (1994\n& Supp. II 1996). It enacted no such amendment to the Independent Counsel\nAct. Furthermore, the Act uses \xe2\x80\x9c rate of pay\xe2\x80\x9d as a proxy for closeness to the\nAttorney General, and because salary does not necessarily reflect this closeness,\nthe fit between the statute\xe2\x80\x99s standard and its purpose already is imprecise. There\xc2\xad\nfore, although inclusion of locality-based pay might make the fit even less precise,\nthis difference would be a matter o f degree, rather than kind.\nWe nevertheless believe that, on the better view, locality-based pay should be\nexcluded. The Act has contained the \xe2\x80\x9c rate of pay\xe2\x80\x9d language since its original\npassage in 1978. At that time, the provisions establishing a \xe2\x80\x9c pay comparability\nsystem,\xe2\x80\x9d see 5 U.S.C. \xc2\xa7\xc2\xa75301-5308 (1976), stated that \xe2\x80\x9c [p]ay may not be paid,\nby reason of any provision of this subchapter, at a rate in excess of the rate of\nbasic pay for level V of the Executive Schedule,\xe2\x80\x9d id. \xc2\xa75308; see also Legislative\nBranch Appropriation Act, 1979, Pub. L. No. 95-391, \xc2\xa7304, 92 Stat. 763, 78889 (1978). Under those provisions, therefore, an official\xe2\x80\x99s salary could not rise\nto the level at which the Act would apply. Although Congress could have clarified\nthe issue by using the \xe2\x80\x9c rate of basic pay\xe2\x80\x9d formulation in the 1994 reauthorization\n(or earlier in the statute creating the current system of locality-based comparability\nadjustments), it does not appear to have focused on this matter,4 and the legislative\nhistory (as discussed above) shows an understanding of the Act\xe2\x80\x99s coverage that\n4 The only consideration of locality-based adjustments dunng the passage of the 1994 reauthonzation appears\nin connection with an amendment to the section on the pay of staff in an Independent Counsel\xe2\x80\x99s office. 28 U S C\n\xc2\xa7 594(c).\n\n70\n\n\x0cCalculating Rate o f Pay o f Department o f Justice Employees fo r Purposes o f \xe2\x80\x98\'Covered Persons \xe2\x80\x99\'\nDetermination Under Independent Counsel Act\n\nis more consistent with the interpretation we adopt than with the contrary one.\nWe therefore do not believe that much weight can rest on the failure to use the\n\xe2\x80\x9c rate of basic pay\xe2\x80\x9d language5 or that any fair inference against our conclusion\ncan be drawn from amendments of other statutes making clear that locality-based\ncomparability adjustments are, for particular purposes, to be disregarded. Further\xc2\xad\nmore, although the use of pay as a measure of closeness to the Attorney General\nis necessarily inexact, inclusion of locality-based pay in the \xe2\x80\x9c rate of pay\xe2\x80\x9d would\ngreatly magnify the imprecision. An additional extraneous factor\xe2\x80\x94 geography \xe2\x80\x94\nwould become relevant, and officials at lower pay grades would come within\nthe Act while others at higher grades would remain outside it. We thus believe\nthat the argument for including locality-based pay, while reasonable, is ultimately\nless than persuasive.\nRICHARD L. SHIFFRIN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n*See also Treasury, Posial Service and General Government Appropriations Act, 1991, Pub L No 101-509,\n\xc2\xa7 101(c)(1)(B), 104 Stat 1389, 1442 (using \xe2\x80\x9c rate of pay\xe2\x80\x9d to refer to pay under the General Schedule excluding\nlocality-based adjustments)\n\n71\n\n\x0c'


b'Application of 18 U.S.C. \xc2\xa7 208 to Service by Executive Branch\nEmployees on Boards of Standard-Setting Organizations\nU n d er 18 U S.C . \xc2\xa7 208, a federal em ployee may serve as a m em ber o f the board o f a private voluntary\nstandards organization to the extent necessary to perm it participation in his or her official capacity\nin the o rg an izatio n \xe2\x80\x99s standard-setting activities.\n\nAugust 24, 1998\nM\n\nem orand um\n\nO p in io n\n\nO f f ic e\n\nof\n\nfo r th e\n\nG en era l C o u n sel\n\nG o v e r n m e n t E t h ic s\n\nThis responds to your request o f August 10, 1998 for our opinion whether,\nabsent a waiver, 18 U.S.C. \xc2\xa7208 (1994) would forbid employees of the executive\nbranch from serving, in their official capacities, as members of the boards of pri\xc2\xad\nvate voluntary standards organizations. We believe that, to the extent necessary\nto permit the federal employees to take part in the standard-setting activities, \xc2\xa7 208\ndoes not bar such service.\nSection 208 prohibits an officer or employee from taking part as a government\nofficial in any \xe2\x80\x9c particular matter\xe2\x80\x9d in which he or she has a financial interest.\nThe statute imputes to the employee the financial interests of certain other persons\nand entities, including an \xe2\x80\x9c organization in which he is serving as officer, director,\ntrustee, general partner or employee.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 208(a). In an earlier opinion,\nwe observed that when an employee is acting in his or her official capacity as\na director or officer of an outside entity, the work for that entity necessarily entails\nofficial action affecting the entity\xe2\x80\x99s financial interests. We therefore concluded\nthat, under 18 U.S.C. \xc2\xa7208, the \xe2\x80\x9c broad prohibition against conflicts o f interest\nwithin the federal government would prevent a government employee from serving\non the board o f directors of an outside organization in his or her official capacity,\nin the absence of: (1) statutory authority or a release of fiduciary obligations by\nthe organization that might eliminate the conflict of interest, or (2) a waiver of\nthe requirements of \xc2\xa7 208(a), pursuant to 18 U.S.C. \xc2\xa7 208(b).\xe2\x80\x9d Service on the\nBoard o f Directors o f Non-Federal Entities by Federal Bureau o f Investigation\nPersonnel in Their Official Capacities, 20 Op. O.L.C. 379, 379 (1996) (\xe2\x80\x9c FBI\nOpinion\xe2\x80\x9d ). In particular, if \xe2\x80\x9c Congress has authorized the service by statute, the\nofficial \xe2\x80\x98serves . . . in an ex officio rather than personal capacity,\xe2\x80\x99 owes a duty\nonly to the United States, and does not violate section 208.\xe2\x80\x9d Service by Federal\nOfficials on the Board o f Directors o f the Bank fo r International Settlements, 21\nOp. O.L.C. 87 (1997) (citation omitted) (\xe2\x80\x9c FRB Opinion\xe2\x80\x9d ).\nSince the FBI Opinion, we have had a number of occasions to consider whether\nparticular statutes confer authority for service on outside boards. We have found\nsuch authority in a range of circumstances. Sometimes the statutes expressly con\xc2\xad\ntemplated official service on an outside board. See Memorandum for Files, from\n210\n\n\x0cA pplication o f 18 U.S.C. \xc2\xa7 2 0 8 to Service by Executive B ranch E m ployees on B oards o f StandardSetting Organizations\n\nDaniel Koffsky, Special Counsel, Office of Legal Counsel, Re: Foundations and\nCommissions Under Fulbright Program (Oct. 24, 1997); Memorandum for Files,\nfrom Daniel Koffsky, Special Counsel, Office of Legal Counsel, Re: Service on\nOutside Board (Feb. 27, 1998) (United States-India Fund for Cultural, Edu\xc2\xad\ncational, and Scientific Cooperation). In another instance, the statute was less\nexplicit, but we found the authority because service on the outside entity was\na means by which the United States negotiated with foreign governments and\n\xe2\x80\x9c the breadth of the President\xe2\x80\x99s power [in that area] counsels a broad reading of\ncongressional authorization for particular means by which the power may be exer\xc2\xad\ncised.\xe2\x80\x9d FRB Opinion, 21 Op. O.L.C. at 89 (citation omitted). In one other\ninstance, where the agency largely conducts its operations in secret and had to\ncreate the outside entity to preserve the secrecy of its work, we concluded that\nthe outside organization was, for relevant purposes, a part of the federal govern\xc2\xad\nment, and thus no conflict existed.\nAs this experience in applying the principles of the FBI Opinion has made clear,\nCongress has enacted a variety of arrangements contemplating, directly or\nindirectly, that federal employees will participate in outside organizations,\nincluding by serving on their boards, and it would frustrate these arrangements\nif such service were considered a disqualifying \xe2\x80\x9c director[ship]\xe2\x80\x9d under 18 U.S.C.\n\xc2\xa7208. See Applicability o f 18 U.S.C. \xc2\xa7208 to Proposed Appointment o f Govern\xc2\xad\nment Official to the Board o f Connie Lee, 18 Op. O.L.C. 136, 138 (1994) (cat\xc2\xad\negories of service considered outside statute). We believe that there are cir\xc2\xad\ncumstances in which statutory authority for service on an outside board can be\nfound even though Congress has not expressly addressed that service. When Con\xc2\xad\ngress has specifically provided for participation in outside organizations and such\nparticipation, to carry out the statutory purposes, entails service on a board, statu\xc2\xad\ntory authorization may be inferred.\nHere, Congress has provided that, in general, federal agencies and departments\n\xe2\x80\x9c shall use technical standards that are developed or adopted by voluntary con\xc2\xad\nsensus standards bodies\xe2\x80\x9d and, in carrying out this requirement, \xe2\x80\x9c shall consult\nwith voluntary, private sector, consensus standards bodies and shall, when such\nparticipation is in the public interest and is compatible with agency and depart\xc2\xad\nmental missions, authorities, priorities, and budget resources, participate with such\nbodies in the development o f technical standards." National Technology Transfer\nand Advancement Act of 1995, Pub. L. No. 104\xe2\x80\x94113, \xc2\xa7 12(d)(1) & (2), 110 Stat.\n775, 783 (1996), 15 U.S.C. \xc2\xa7272 note (1994) (emphasis added). As the legislative\nhistory explains, Congress desired and anticipated that federal agencies would\n\xe2\x80\x9c work closely\xe2\x80\x9d with voluntary standard-setting organizations, that these organiza\xc2\xad\ntions would \xe2\x80\x9c include active government participation,\xe2\x80\x9d and that agencies would\n\xe2\x80\x9c work with these voluntary consensus standards bodies, whenever and wherever\nappropriate.\xe2\x80\x9d H.R. Rep. No. 104\xe2\x80\x94390, at 15, 25 (1995). When the board o f an\noutside organization plays an integral role in the process of setting standards, it\n211\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 22\n\nwould therefore frustrate the statute to forbid federal employees from being on\nthe board. They could not then take the \xe2\x80\x9c active\xe2\x80\x9d role that Congress mandated.\nTo carry out the statute, therefore, employees may serve on these outside boards\nwithout running afoul of 18 U.S.C. \xc2\xa7208, if the boards are engaged in the\nstandard-setting activities in which Congress directed federal agencies to partici\xc2\xad\npate.\nTo be sure, \xc2\xa7208 allows for waivers when the employee\xe2\x80\x99s \xe2\x80\x9c interest is not so\nsubstantial as to be deemed likely to affect the integrity of the services which\nthe Government may expect,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 208(b)(1), and thus a conclusion that\n\xc2\xa7 208 generally would bar employees from serving on standard-setting bodies in\ntheir official capacities would not necessarily have prevented the service in every\ninstance. Nevertheless, reliance on the waiver procedure would not be consonant\nwith the statutory scheme here. Congress itself has resolved the possible conflict\nbetween duties to the organization and duties to the United States, at least to\nthe extent that the criminal prohibition may be at issue.\nW e would not reach the same conclusion, however, if the board of an organiza\xc2\xad\ntion had only administrative responsibilities and was not directly involved in\nstandard-setting. In that event, the congressional direction to \xe2\x80\x9c participate . . . in\nthe development of technical standards\xe2\x80\x9d would not apply. Consequently, in\naccordance with the FBI Opinion, \xc2\xa7 208 would bar the service on the board, absent\na waiver or an effective release from fiduciary duty.\nFinally, you also ask us to confirm your view that an employee\xe2\x80\x99s service in\nan official capacity as the chair o f a working committee or subcommittee of a\nstandard-setting organization, to the extent the position imposes no fiduciary duty\nand creates no employer-employee relationship, would not implicate 18 U.S.C.\n\xc2\xa7 208. W e agree that service in such a position would not itself trigger the statute.\nIndeed, we are far from certain that a position other than one specified in \xc2\xa7 208\xe2\x80\x94\n\xe2\x80\x9c officer, director, trustee, general partner or employee\xe2\x80\x9d \xe2\x80\x94could be the basis for\nimputing an organization\xe2\x80\x99s financial interest to the employee, even if that other\nposition created a fiduciary duty to the organization. In any event, the positions\nyou describe would not give rise to an imputed disqualification.\nBETH NOLAN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n212\n\n\x0c'


b'President\xe2\x80\x99s Receipt of the Nobel Peace Prize\nThe Emoluments Clause of the Constitution does not bar the President from accepting the\nNobel Peace Prize without congressional consent, because the Norwegian Nobel\nCommittee is not a \xe2\x80\x9cKing, Prince, or foreign State.\xe2\x80\x9d\nThe Foreign Gifts and Decorations Act does not bar the President from accepting the\nNobel Peace Prize without congressional consent, because the Norwegian Nobel\nCommittee is not a \xe2\x80\x9cunit of a foreign governmental authority,\xe2\x80\x9d an \xe2\x80\x9cinternational or\nmultinational organization whose membership is composed of any unit of foreign government,\xe2\x80\x9d or an \xe2\x80\x9cagent or representative of any such unit or such organization.\xe2\x80\x9d\nDecember 7, 2009\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nThis memorandum concerns whether the President\xe2\x80\x99s receipt of the\nNobel Peace Prize would conflict with the Emoluments Clause of the\nConstitution, which provides that \xe2\x80\x9cno Person holding any Office of Profit\nor Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind\nwhatever, from any King, Prince, or foreign State.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 9,\ncl. 8. As we previously explained in our oral advice and now explain in\ngreater detail, because the Nobel Committee that awards the Peace Prize\nis not a \xe2\x80\x9cKing, Prince, or foreign State,\xe2\x80\x9d the Emoluments Clause does not\napply. You have also asked whether the Foreign Gifts and Decorations\nAct, 5 U.S.C. \xc2\xa7 7342 (2006), bars the President from receiving the Peace\nPrize. Here, too, we confirm our previous oral advice that it does not.\nI.\nOn October 9, 2009, the Norwegian Nobel Committee (the \xe2\x80\x9cPeace Prize\nCommittee,\xe2\x80\x9d or the \xe2\x80\x9cCommittee\xe2\x80\x9d), headquartered in Oslo, Norway,\nannounced that the President will be this year\xe2\x80\x99s recipient of the Nobel\nPeace Prize. The 2009 Peace Prize, which will consist of ten million\nSwedish Kroner (or approximately $1.4 million), a certificate, and a gold\nmedal bearing the image of Alfred Nobel, is expected to be awarded by\nthe Nobel Committee to the President on December 10, 2009\xe2\x80\x94the anniversary of Nobel\xe2\x80\x99s death. See Statutes of the Nobel Foundation \xc2\xa7 9,\nhttp://nobelprize.org/nobelfoundation/statutes.html (last visited Nov.\n370\n\n\x0cPresident\xe2\x80\x99s Receipt of the Nobel Peace Prize\n\n24, 2009) (\xe2\x80\x9cNobel Foundation Statutes\xe2\x80\x9d); see also The Nobel Prize\nAmounts, http://nobelprize.org/nobel_prizes/amounts.html (last visited\nNov. 24, 2009).\nThe Peace Prize is a legacy of Swedish chemist Alfred Bernhard Nobel. In his will, Nobel directed that a portion of his wealth be used to\nestablish a set of awards, one of which, the Peace Prize, was intended to\nhonor the person or entity that \xe2\x80\x9cshall have done the most or the best\nwork for fraternity between nations, for the abolition or reduction of\nstanding armies and for the holding and promotion of peace congresses.\xe2\x80\x9d Nobel Foundation Statutes \xc2\xa7 1 (setting forth the pertinent provision\nof Nobel\xe2\x80\x99s will). The relevant assets of the Nobel estate have been\nmanaged since 1900 by the Nobel Foundation, a private institution\nbased in Stockholm, Sweden. See Birgitta Lemmel, The Nobel Foundation: A Century of Growth and Change (2007) (\xe2\x80\x9cLemmel\xe2\x80\x9d), http://\nnobelprize.org/nobelfoundation/history/lemmel (last visited Nov. 24,\n2009). The Foundation is responsible for managing the assets of the\nbequest in such a manner as to provide for the annual award of the Nobel\nprizes and the operation of the prize-awarding bodies, including the Nobel\nCommittee that selects the Peace Prize. Nobel Foundation Statutes \xc2\xa7 14;\nsee also Lemmel (\xe2\x80\x9cOne vital task of the Foundation is to manage its assets\nin such a way as to safeguard the financial base of the prizes themselves\nand of the prize selection process.\xe2\x80\x9d). Unlike the other Nobel prizes, for\naccomplishments in fields such as literature and physics, which are\nawarded by committees appointed by Swedish institutions, Nobel specified in his will that the recipient of the prize \xe2\x80\x9cfor champions of peace\xe2\x80\x9d\nwas to be selected \xe2\x80\x9cby a committee of five persons to be elected by the\nNorwegian Storting [i.e., the Norwegian Parliament].\xe2\x80\x9d Nobel Foundation\nStatutes \xc2\xa7 1.\nOn April 26, 1897, the Storting formally agreed to carry out Nobel\xe2\x80\x99s\nwill and, in August of that year, elected the first members of the Nobel\nCommittee that would award the prize funded by Nobel\xe2\x80\x99s estate. That\nCommittee\xe2\x80\x94not the Storting itself, or any other official institution of the\nNorwegian government, or the Nobel Foundation\xe2\x80\x94has selected the Peace\nPrize recipients since 1901. To be sure, in its nascent years, the Nobel\nCommittee was more \xe2\x80\x9cclosely linked not only to the Norwegian political\nestablishment in general, but also to the Government,\xe2\x80\x9d than it is today. See\n\xc3\x98yvind T\xc3\xb8nnesson, The Norwegian Nobel Committee (1999) (\xe2\x80\x9cT\xc3\xb8nnes371\n\n\x0c33 Op. O.L.C. 370 (2009)\n\nson\xe2\x80\x9d), http://nobelprize.org/nobel_prizes/peace/articles/committee (last\nvisited Nov. 24, 2009). Indeed, until 1977, the Committee\xe2\x80\x99s official title\nwas the Nobel Committee of the Norwegian Storting. Nevertheless, it has\nlong been recognized that the \xe2\x80\x9c[C]ommittee is formally independent even\nof the Storting, and since 1901 it has repeatedly emphasized its independence.\xe2\x80\x9d Id. In 1936, for instance, the Norwegian Foreign Minister and a\nformer Prime Minister recused themselves from the Committee\xe2\x80\x99s deliberations out of concern that bestowing the award on the German pacifist Carl\nvon Ossietzky would be perceived as an act of Norwegian foreign policy.\nId.; see also Berlin Protests Ossietzky Award, N.Y. Times, Nov. 26, 1936,\nat 22 (noting that \xe2\x80\x9cNorway [d]enies [r]esponsibility for Nobel [d]ecision\xe2\x80\x9d).\nTo make clear the independent nature of the Committee\xe2\x80\x99s decisions, moreover, the Storting in the very next year, 1937, barred government ministers\nfrom sitting on the Nobel Committee. See Special Regulations for the\nAward of the Nobel Peace Prize and the Norwegian Nobel Institute, etc.,\nadopted by the Nobel Committee of the Norwegian Storting on the 10th\nday of April in the year 1905 (including amendments of 1977, 1991, 1994,\n1998 and 2000), \xc2\xa7 9, http://nobelprize.org/nobelfoundation/statutes-no.\nhtml (last visited Nov. 24, 2009) (\xe2\x80\x9cNobel Peace Prize Regulations\xe2\x80\x9d) (\xe2\x80\x9cIf a\nmember of the [Nobel] Committee is appointed a member of the Government during his period of office, or if a member of the Government is\nelected a member of the Committee, he shall resign from the Committee\nfor as long as he continues in office as a Minister\xe2\x80\x9d). Furthermore, for\nnearly 36 years, no member of the Committee has been permitted as a\ngeneral matter to continue serving in the Storting. See T\xc3\xb8nnesson (\xe2\x80\x9c[I]n\n1977 . . . the Storting decided that its members should not participate in\nnonparliamentary committees appointed by the Storting itself.\xe2\x80\x9d). 1 That\nsaid, an appointment to the Committee does not appear to require a sitting\nmember of the Storting to resign immediately from his or her government\nposition, and thus two of the current members, who joined the Nobel\nCommittee in 2009, appear to have served on the Storting during much, if\nnot all, of the period during which this year\xe2\x80\x99s Prize recipient was selected.\nSee List of Nobel Committee Members, http://nobelpeaceprize.org/en_GB/\nTo further emphasize the Committee\xe2\x80\x99s independence from the Norwegian government, including the monarchy, \xe2\x80\x9c[u]nlike the prize award ceremony in Stockholm [for the\nother Nobel Prizes], it is the Chairperson of the Nobel Committee, and not the King [of\nNorway]\xe2\x80\x9d who formally presents the Peace Prize. T\xc3\xb8nnesson.\n1\n\n372\n\n\x0cPresident\xe2\x80\x99s Receipt of the Nobel Peace Prize\n\nnomination_committee/members/ (last visited Dec. 4, 2009). The other\nthree members of the Committee were private individuals. Id.\nApart from the Storting\xe2\x80\x99s role in selecting the members of the Nobel\nCommittee, the Norwegian government has no meaningful role in selecting the Prize recipients or financing the Prize itself. In addition to fully\nfunding the Prize, the Sweden-based private Nobel Foundation, established pursuant to Alfred Nobel\xe2\x80\x99s will, is responsible for the Committee\xe2\x80\x99s\nviability and the administration of the award. Specifically, your Office has\ninformed us that the Committee\xe2\x80\x99s operations, including the salaries of the\nvarious Committee members and of the staff, are funded by the Foundation and not by the Norwegian or Swedish governments. See E-mail for\nDavid J. Barron, Acting Assistant Attorney General, Office of Legal\nCounsel, from Virginia R. Canter, Associate Counsel to the President,\n(Nov. 2, 2009, 19:11 EST) (\xe2\x80\x9cCanter E-mail\xe2\x80\x9d) (summarizing telephonic\ninterview with Geir Lundestad, Secretary to the Nobel Committee and\nDirector of the Nobel Institute); see also Nobel Foundation Statutes \xc2\xa7 11\n(\xe2\x80\x9cThe Board of the Foundation shall establish financial limits on the work\nthat the prize-awarding bodies perform in accordance with these statutes\xe2\x80\x9d); id. \xc2\xa7 6 (\xe2\x80\x9cA member of a Nobel Committee shall receive remuneration for his work, in an amount to be determined by the prize-awarding\nbody [i.e., the Nobel Committee].\xe2\x80\x9d). The Committee also deliberates\nand maintains staff in the Nobel Institute building, which is owned by\nthe private Nobel Foundation rather than by the government of Sweden\nor Norway. See The Nobel Institute, http://nobelpeaceprize.org/en_GB/\ninstitute/ (last visited Dec. 4, 2009) (noting that Nobel Institute building is\nalso where the recipient of the Peace Prize is announced); see also Description of Nobel Institute Building, http://nobelpeaceprize.org/en_GB/\ninstitute/nobel-building/ (last visited Dec. 4, 2009). Although the Nobel\nFoundation plays a critical role in sustaining the Nobel Committee and the\nPeace Prize, it is the Nobel Committee that independently selects the\nPrize recipients. See Organizational Structure of the Nobel Entities, http://\nnobelprize.org/nobelfoundation/org_structure.html (last visited Nov. 24,\n2009) (\xe2\x80\x9cThe Nobel Foundation does not have the right or mandate to\ninfluence the nomination and selection procedures of the Nobel Laureates.\xe2\x80\x9d); see also Lemmel (\xe2\x80\x9c[T]he Prize-Awarding Institutions are not only\nentirely independent of all government agencies and organizations, but\nalso of the Nobel Foundation.\xe2\x80\x9d).\n373\n\n\x0c33 Op. O.L.C. 370 (2009)\n\nII.\nThe Emoluments Clause provides that \xe2\x80\x9cno Person holding any Office of\nProfit or Trust under [the United States], shall, without the Consent of the\nCongress, accept of any present, Emolument, Office, or Title, of any kind\nwhatever, from any King, Prince, or foreign State.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 9,\ncl. 8. Adopted unanimously at the Constitutional Convention, the Emoluments Clause was intended to recognize the \xe2\x80\x9cnecessity of preserving\nforeign Ministers & other officers of the U.S. independent of external\ninfluence,\xe2\x80\x9d specifically, undue influence and corruption by foreign governments. See 2 The Records of the Federal Convention of 1787, at 389\n(Max Farrand ed., rev. ed. 1966) (notes of James Madison); see also 3 id.\nat 327 (\xe2\x80\x9cIt was thought proper, in order to exclude corruption and foreign\ninfluence, to prohibit any one in office from receiving or holding any\nemoluments from foreign states.\xe2\x80\x9d) (remarks of Governor Randolph);\nApplicability of the Emoluments Clause to Non-Government Members of\nACUS, 17 Op. O.L.C. 114, 116 (1993) (\xe2\x80\x9cACUS \xe2\x80\x9d); President Reagan\xe2\x80\x99s\nAbility to Receive Retirement Benefits from the State of California, 5 Op.\nO.L.C. 187, 188 (1981) (discussing the background of the ratification of\nthe Clause).\nThe President surely \xe2\x80\x9chold[s] an[] Office of Profit or Trust,\xe2\x80\x9d and the\nPeace Prize, including its monetary award, is a \xe2\x80\x9cpresent\xe2\x80\x9d or \xe2\x80\x9cEmolument\n. . . of any kind whatever.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 9, cl. 8. The critical question, therefore, concerns the status of the institution that makes the award.\nBased on the consistent historical practice of the political branches for\nmore than a century with respect to receipt of the Peace Prize by high\nfederal officials, as well as our Office\xe2\x80\x99s precedents interpreting the Emoluments Clause in other contexts, we conclude that the President in accepting the Prize would not be accepting anything from a \xe2\x80\x9cforeign State\xe2\x80\x9d\nwithin the Clause\xe2\x80\x99s meaning. Accordingly, we do not believe that the\nPresident\xe2\x80\x99s acceptance of the Peace Prize without congressional consent\nwould violate the Emoluments Clause.\nA.\nNone of our Office\xe2\x80\x99s precedents concerning the Emoluments Clause\nspecifically considers the status of the Nobel Committee (or the Nobel\nFoundation), but there is substantial and consistent historical practice of\n374\n\n\x0cPresident\xe2\x80\x99s Receipt of the Nobel Peace Prize\n\nthe political branches that is directly relevant. The President would be far\nfrom the first government official holding an \xe2\x80\x9cOffice of Profit or Trust\xe2\x80\x9d to\nreceive the Nobel Peace Prize. Rather, since 1906, there have been at least\nsix federal officers who have accepted the Prize while serving in their\nelected or appointed offices. The Peace Prize has been received by two\nother sitting Presidents\xe2\x80\x94Theodore Roosevelt and Woodrow Wilson\xe2\x80\x94by\na sitting Vice President, Secretary of State, and Senator, and by a retired\nGeneral of the Army, 2 with the most recent of these acceptances having\noccurred in 1973. Throughout this history, we have found no indication\nthat either the Executive or the Legislative Branch thought congressional\napproval was necessary.\nThe first instance of the Nobel Committee awarding the Peace Prize\nto a sitting officer occurred only five years after the Committee began\nawarding the Prize. In 1906, President Theodore Roosevelt received the\nPeace Prize. 3 On December 10 of that year, United States Minister to\nNorway Herbert H.D. Pierce accepted the \xe2\x80\x9cdiploma, medal, and order\nupon the Nobel trustees [of the Nobel Foundation] for the amount of the\nprize\xe2\x80\x9d on Roosevelt\xe2\x80\x99s behalf. See \xe2\x80\x9cEmperor Dead\xe2\x80\x9d and Other Historic\nAmerican Diplomatic Dispatches 336\xe2\x80\x9337 (dispatch from Pierce to Secretary of State Elihu Root) (Peter D. Eicher ed., 1997) (\xe2\x80\x9cPierce Dispatch\xe2\x80\x9d).\nNot only did Roosevelt accept the Peace Prize while President, he also\nchose as President to use the award money (roughly $37,000) to establish\na foundation for the promotion of \xe2\x80\x9cindustrial peace.\xe2\x80\x9d See Oscar S. Straus,\nUnder Four Administrations: From Cleveland to Taft 239\xe2\x80\x9340 (1922)\n(\xe2\x80\x9cStraus\xe2\x80\x9d) (noting that Roosevelt transferred the draft of the monetary\naward to Chief Justice Fuller in January of 1907 to initiate efforts to\nestablish the Foundation).\nWe have found no indication that the President or Congress believed\nthat receipt of the Prize, including its award money, required legislative\napproval. Although Congress passed legislation to establish Roosevelt\xe2\x80\x99s\nSee Memorandum for the File from Richard L. Shiffrin, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Proposed Award of Honorary British Knighthood\nto Retiring Military Officer (Aug. 27, 1996) (retired military officers continue to \xe2\x80\x9chold[]\n[an] Office of Profit or Trust\xe2\x80\x9d under the United States and hence remain subject to the\nEmoluments Clause); see also 53 Comp. Gen. 753 (1974) (same).\n3 See List of Nobel Peace Prize Laureates, http://nobelprize.org/nobel_prizes/peace/\nlaureates (last visited Nov. 19, 2009).\n2\n\n375\n\n\x0c33 Op. O.L.C. 370 (2009)\n\nfoundation, see Act of Mar. 2, 1907, ch. 2558, Pub. L. No. 59-217, 34\nStat. 1241, it did so some months after he accepted the Peace Prize, and\nwe think it clear that neither the President nor Congress thought this law\nnecessary to satisfy the Emoluments Clause. 4 The bill that established the\ntrust said nothing about consent even though Congress assuredly knew\nhow to express such legislative approval for Emoluments Clause purposes. For instance, the same Congress that established the foundation at\nRoosevelt\xe2\x80\x99s request also \xe2\x80\x9cauthorized [Professor Simon Newcomb, a\nretired Naval Officer] to accept the decoration of the order \xe2\x80\x98Pour le\nM\xc3\xa9rite, f\xc3\xbcr Wissenschaftern und Kunste,\xe2\x80\x99 conferred upon him by the\nGerman Emperor,\xe2\x80\x9d Act of Mar. 30, 1906, ch. 1353, Priv. Res. No. 591280, 34 Stat. 1713, 1713, and granted \xe2\x80\x9c[p]ermission . . . to [a Navy RearAdmiral] . . . to accept the China war medal, with Pekin clasp, tendered\nto him by the King of Great Britain, and the Order of the Red Eagle, with\nswords, tendered to him by the Emperor of Germany,\xe2\x80\x9d Act of Mar. 4,\n1907, Priv. Res., 34 Stat. 2825, 2825 (S.J. Res. 98, 59th Cong.). 5\n\n4 Consistent with this understanding of the congressional action, the bill establishing\nthe foundation was modeled after documents creating trusts, see Straus at 239, and not\nstatutes conferring legislative consent to officers\xe2\x80\x99 receipt of gifts from foreign states.\nFurther, the statute\xe2\x80\x99s legislative history contains no indication that the bill was intended to\nratify Roosevelt\xe2\x80\x99s acceptance of a gift from a foreign power; nor does it indicate that his\nacceptance of the Prize without congressional consent was inappropriate. See S. Rep. No.\n59-7283 (1907); see also 41 Cong. Rec. 4113 (1907) (\xe2\x80\x9cThere can be no possible objection\n[to the bill]. It establishes trustees, who are to receive from the President the Nobel prize\nfor the foundation of a society for the promotion of industrial peace.\xe2\x80\x9d) (statement of Sen.\nLodge). Ultimately, the Foundation never expended any funds, and in July of 1918,\nCongress dissolved the trust. See Act of July 12, 1918, ch. 150, Pub. Res. No. 65-37, 40\nStat. 899 (H.J. Res. 313) (\xe2\x80\x9cJoint Resolution Providing for the disposition of moneys\nrepresented in the Alfred Bernard Nobel peace prize, awarded in nineteen hundred and\nsix\xe2\x80\x9d). Roosevelt then distributed the Nobel Prize money, along with the interest it had\naccrued, to various charities in the United States and Europe. See Straus at 241.\n5 See also, e.g., Act of Apr. 2, 1896, Priv. Res. No. 54-39, 29 Stat. 759, 759 (\xe2\x80\x9cauthoriz[ing]\xe2\x80\x9d President Harrison \xe2\x80\x9cto accept certain medals presented to him by the Governments of Brazil and Spain during the term of his service as President of the United\nStates\xe2\x80\x9d); Act of Apr. 20, 1871, Priv. Res. No. 42-4, 17 Stat. 643, 643 (\xe2\x80\x9c[C]onsent of\nCongress is hereby given to . . . [the] secretary of the Smithsonian Institution, to accept\nthe title and regalia of a commander of the Royal Norwegian Order of St. Olaf, conferred\nupon him for his distinguished scientific service and character by the King of Sweden and\nNorway\xe2\x80\x9d); Act of Mar. 3, 1865, Priv. Res. No. 38-39, 13 Stat. 604, 604 (Navy Captain\n\xe2\x80\x9cauthorized to accept the sword of honor recently presented to him by the government of\n\n376\n\n\x0cPresident\xe2\x80\x99s Receipt of the Nobel Peace Prize\n\nPerhaps most importantly, the statute that established the foundation to\nadminister the prize money that Roosevelt had accepted does not address\nat all Roosevelt\xe2\x80\x99s receipt of the gold medal and diploma. Yet the medal\nand the diploma have always constituted elements of the Peace Prize, see\nPierce Dispatch at 337 (noting receipt of Nobel medal); see also Nobel\nLecture of President Roosevelt (May 5, 1910), http://nobelprize.org/\nnobel_prizes/peace/laureates/1906/roosevelt-lecture.html (last visited\nNov. 23, 2009) (\xe2\x80\x9cThe gold medal which formed part of the prize I shall\nalways keep, and I shall hand it on to my children as a precious heirloom.\xe2\x80\x9d), and they constitute a \xe2\x80\x9cpresent\xe2\x80\x9d or \xe2\x80\x9cEmolument . . . of any kind\nwhatever\xe2\x80\x9d within the meaning of the Emoluments Clause. Thus, if the law\nestablishing the trust to be funded by the award money had been intended\nto provide congressional consent for President Roosevelt\xe2\x80\x99s receipt of the\nPrize, it would presumably have encompassed these elements of the Prize\nas well.\nThe example more than a decade later of President Wilson also clearly\nreflects an understanding by the political branches that receipt of the\nPeace Prize does not implicate the Emoluments Clause. When, in December of 1920, President Wilson received the Peace Prize, he, unlike President Roosevelt, did not seek to donate the Prize proceeds to a charitable\ncause or enlist Congress\xe2\x80\x99s aid in accomplishing such a charitable purpose.\nInstead, he simply accepted the Prize and deposited the award money in a\npersonal account in a Swedish bank, apparently hoping for a favorable\nmovement in the Kroner/dollar exchange rate. See 67 The Papers of\nWoodrow Wilson 51\xe2\x80\x9352 (Arthur S. Link ed., 1992) (diary of Charles Lee\nSwem). President Wilson does not appear to have sought congressional\napproval for his acceptance, nor does it appear that Congress thought its\nconsent was required.\nThese Presidents are not, as indicated above, the only federal officers\nwho have received the Peace Prize. Senator Elihu Root in 1913, Vice\nPresident Charles Dawes in 1926, retired General of the Army George\nMarshall in 1953, and Secretary of State Henry Kissinger in 1973 each\nreceived the Nobel Peace Prize. See List of Nobel Peace Prize Laureates,\nGreat Britain\xe2\x80\x9d); Act of June 29, 1854, Priv. Res. No. 33-14, 10 Stat. 830, 830 (\xe2\x80\x9cauthoriz[ing] . . . accept[ance of ] a gold medal recently presented . . . by His Majesty the King\nof Sweden\xe2\x80\x9d).\n\n377\n\n\x0c33 Op. O.L.C. 370 (2009)\n\nsupra note 3. As was the case with Presidents Roosevelt and Wilson, none\nof these recipients, as far as we are aware, received congressional consent\nprior to accepting the Prize or congressional ratification of such receipt at\nany time thereafter.\nThis longstanding treatment of the Nobel Peace Prize is particularly\nsignificant to our analysis because several of the Prizes were awarded\nwhen the Nobel Committee\xe2\x80\x94then known as the Nobel Committee of the\nNorwegian Storting\xe2\x80\x94lacked some of the structural barriers to governmental control that are present today, such as rules generally barring\ngovernment ministers and legislators from serving on the Committee. If\nanything, then, these prior cases arguably would cause more reason for\nconcern than would be present today, and yet the historical record reveals\nno indication that either the Congress or the Executive believed receipt of\nthe Prize implicated the Emoluments Clause at all. The absence of such\nevidence is particularly noteworthy since the Clause was recognized as a\nbar to gifts by foreign states without congressional consent throughout\nthis same period of time, such that the Attorney General and this Office\nadvised that various gifts from foreign states could not be accepted, see,\ne.g., Gifts from Foreign Prince, 24 Op. Att\xe2\x80\x99y Gen. 116, 118 (1902), and\nCongress passed legislation specifically manifesting its consent to some\ngifts bestowed by foreign states on individuals covered by the Clause. See\nsupra note 5. To be sure, this long, unbroken practice of high federal\nofficials accepting the Nobel Peace Prize without congressional consent\ncannot dictate the outcome of our constitutional analysis. But we do think\nsuch practice strongly supports the conclusion that the President\xe2\x80\x99s receipt\nof the Nobel Peace Prize would not conflict with the Emoluments Clause,\nas it may fairly be said to reflect an established understanding of what\nconstitutes a gift from a \xe2\x80\x9cforeign State\xe2\x80\x9d that would trigger application of\nthe Clause\xe2\x80\x99s prohibition. Cf. Am. Ins. Ass\xe2\x80\x99n v. Garamendi, 539 U.S. 396,\n415 (2003) (analyzing President\xe2\x80\x99s foreign affairs power under the Constitution in light of \xe2\x80\x9clongstanding practice\xe2\x80\x9d in Executive Branch and congressional silence); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)\n(noting that a \xe2\x80\x9c\xe2\x80\x98systematic, unbroken, executive practice, long pursued to\nthe knowledge of the Congress and never before questioned . . . may be\ntreated as a gloss on\xe2\x80\x99\xe2\x80\x9d the Constitution); Youngstown Sheet & Tube Co. v.\nSawyer, 343 U.S. 579, 610\xe2\x80\x9311 (1952) (Frankfurter, J., concurring)\n(\xe2\x80\x9cDeeply embedded traditional ways of conducting government cannot\n378\n\n\x0cPresident\xe2\x80\x99s Receipt of the Nobel Peace Prize\n\nsupplant the Constitution or legislation, but they give meaning to the\nwords of a text or supply them.\xe2\x80\x9d); McCulloch v. Maryland, 17 U.S. (4\nWheat.) 315, 401 (1819) (where \xe2\x80\x9cthe great principles of liberty are not\nconcerned . . . [a doubtful question,] if not put at rest by the practice of\nthe government, ought to receive a considerable impression from that\npractice\xe2\x80\x9d).\nB.\nThe precedents of our Office reinforce the constitutional conclusion\nthat the historical practice recounted above strongly suggests. Indeed, our\nOffice\xe2\x80\x99s numerous opinions on the Emoluments Clause have never adverted to the receipt of the Peace Prize by government officials and certainly have never suggested that the numerous acceptances of the Prize\nwere contrary to the Clause. That is not surprising. Under these same\nopinions, it is clear that, due to the unique organization of the Nobel\nCommittee (including its reliance on the privately endowed Nobel Foundation), Nobel Peace Prize recipients do not receive presents or emoluments from a \xe2\x80\x9cforeign State\xe2\x80\x9d for purposes of the Emoluments Clause.\nThe precedents of the Office do establish that the Emoluments Clause\nreaches not only \xe2\x80\x9cforeign State[s]\xe2\x80\x9d as such but also their instrumentalities.\nACUS, 17 Op. O.L.C. at 122; Applicability of Emoluments Clause to\nEmployment of Government Employees by Foreign Public Universities,\n18 Op. O.L.C. 13, 18 (1994) (\xe2\x80\x9cPublic Universities\xe2\x80\x9d). Quite clearly, the\nNobel Committee is not itself a foreign state in any traditional sense. The\nissue, therefore, is whether the Committee has the kind of ties to a foreign\ngovernment that would make it, and by extension the Nobel Foundation in\nfinancing the Prize, an instrumentality of a foreign state under our precedents. Our past opinions make clear that an entity need not engage specifically in \xe2\x80\x9cpolitical, military, or diplomatic functions\xe2\x80\x9d to be deemed an\ninstrumentality of a foreign state. 6 See Public Universities, 18 Op. O.L.C.\n\nAccordingly, we have explained that corporations owned or controlled by a foreign\ngovernment are presumptively foreign states under the Emoluments Clause, even though\nthe Act of State doctrine suggests that \xe2\x80\x9cwhen foreign governments act in their commercial\ncapacities, they do not exercise powers peculiar to sovereigns,\xe2\x80\x9d and thus are not entitled\nto the immunity from suit that might be available. ACUS, 17 Op. O.L.C. at 120\n6\n\n379\n\n\x0c33 Op. O.L.C. 370 (2009)\n\nat 19; see also ACUS, 17 Op. O.L.C. at 122 (\xe2\x80\x9c[T]he language of the\nEmoluments Clause does not warrant any distinction between the various\ncapacities in which a foreign State may act.\xe2\x80\x9d). Thus, for example, we have\ndetermined that entities such as corporations owned or controlled by a\nforeign government and foreign public universities may fall within the\nprohibition of the Clause. ACUS, 17 Op. O.L.C. at 121\xe2\x80\x9322.\nTo determine whether a particular case involves receipt of a present or\nemolument from a foreign state, however, our Office has closely examined the particular facts at hand. Specifically, we have sought to determine from those facts whether the entity in question is sufficiently independent of the foreign government to which it is arguably tied\xe2\x80\x94\nspecifically with respect to the conferral of the emolument or present at\nissue, e.g., hiring an employee or bestowing an award, Public Universities, 18 Op. O.L.C. at 20\xe2\x80\x94that its actions cannot be deemed to be those of\nthat foreign state. In short, our opinions reflect a consistent focus on\nwhether an entity\xe2\x80\x99s decision to confer a particular present or emolument is\nsubject to governmental control or influence. 7\nThe factors we have considered include whether a government is the\nsubstantial source of funding for the entity, see, e.g., Applicability of\nEmoluments Clause to Proposed Service of Government Employee on\nCommission of International Historians, 11 Op. O.L.C. 89, 90 (1987)\n(\xe2\x80\x9cInternational Historians\xe2\x80\x9d); whether a government, as opposed to a\nprivate intermediary, makes the ultimate decision regarding the gift or\nemolument, see, e.g., Memorandum for John G. Gaine, General Counsel,\nCommodity Futures Trading Commission, from Leon Ulman, Deputy\nAssistant Attorney General, Office of Legal Counsel, Re: Expense Reimbursement in Connection with Trip to Indonesia (Aug. 11, 1980) (\xe2\x80\x9cTrip to\nIndonesia\xe2\x80\x9d); and whether a government has an active role in the management of the entity, such as through having government officials serve on\nan entity\xe2\x80\x99s board of directors, see, e.g., Public Universities, 18 Op. O.L.C.\n(\xe2\x80\x9c[N]othing in the text of the Emoluments Clause limits its application solely to foreign\ngovernments acting as sovereigns.\xe2\x80\x9d).\n7 Where a foreign state indisputably and directly confers a present or emolument, such\nconsiderations of autonomy and control may be relevant, but not decisive. See ACUS, 17\nOp. O.L.C. at 119. Here, however, the critical issue is whether the Nobel Committee, and\nby extension the Nobel Foundation, is an instrumentality of a foreign government for\npurposes of awarding the privately endowed Peace Prize.\n\n380\n\n\x0cPresident\xe2\x80\x99s Receipt of the Nobel Peace Prize\n\nat 15. No one of these factors has proven dispositive in our prior consideration of Emoluments Clause issues. Rather, we have looked to them in\ncombination to assess the status of the entity for purposes of the Clause,\nkeeping in mind at all times the underlying purpose that the Clause is\nintended to serve. See, e.g., Memorandum for H. Gerald Staub, Office of\nChief Counsel, National Aeronautics and Space Administration, from\nSamuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: Emoluments Clause Questions Raised by NASA Scientist\xe2\x80\x99s\nProposed Consulting Arrangement with the University of New South\nWales (May 23, 1986) (\xe2\x80\x9cgiven [foreign public university\xe2\x80\x99s] functional and\noperational separation and independence from the government of Australia and state political instrumentalities . . . [t]he answer to the Emoluments\nClause question . . . must depend [on] whether the consultancy would\nraise the kind of concern (viz., the potential for \xe2\x80\x98corruption and foreign\ninfluence\xe2\x80\x99) that motivated the Framers in enacting the constitutional\nprohibition\xe2\x80\x9d).\nConsistent with this analysis, we have concluded in the past that Emoluments Clause concerns are raised where the \xe2\x80\x9cultimate control\xe2\x80\x9d over the\ndecision at issue\xe2\x80\x94e.g., an employment decision or a decision to bestow\nan award\xe2\x80\x94resides with the foreign government. For instance, an employee of the Nuclear Regulatory Commission (\xe2\x80\x9cNRC\xe2\x80\x9d) sought authorization\nto work for a consulting firm that was retained by the Mexican government. Application of the Emoluments Clause of the Constitution and the\nForeign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982). Because we concluded that the \xe2\x80\x9cultimate control, including selection of\npersonnel, remains with the Mexican government,\xe2\x80\x9d id. (\xe2\x80\x9cthe retention of\nthe NRC employee by the consulting firm appears to be the principal\nreason for selection of the consulting firm by the Mexican government\xe2\x80\x9d),\nwe determined that the Emoluments Clause barred the arrangement.\nSimilarly, we concluded that an invitation to join a commission of international historians that was established and funded entirely by the Austrian government constituted an invitation from the Austrian government\nitself. International Historians, 11 Op. O.L.C. at 90.\nBy contrast, although we have previously opined that foreign public\nuniversities are presumptively instrumentalities of a foreign state for the\npurposes of the Emoluments Clause, we determined that two NASA\nscientists on leave without pay could be employed by the University of\n381\n\n\x0c33 Op. O.L.C. 370 (2009)\n\nVictoria in British Columbia, Canada, without triggering that constitutional restraint. Public Universities, 18 Op. O.L.C. at 13. We came to this\nconclusion because the evidence demonstrated that the University acted\nindependently of the Canadian (or the British Columbian) government\nwhen making faculty employment decisions. Id. at 15 (\xe2\x80\x9c[T]he University\nof Victoria should not be considered a foreign state.\xe2\x80\x9d). To be sure, as we\nacknowledged, the University was under the formal control of the British\nColumbia government. Id. at 20 (noting that the government had \xe2\x80\x9cultimate\xe2\x80\x9d control of the University); see also id. at 15 (noting that the faculty\nwas \xe2\x80\x9cconstituted\xe2\x80\x9d by the University\xe2\x80\x99s Board of Governors, the majority of\nwhom were appointed by the provincial government). Nevertheless, it was\ncritical to our analysis that the specific conduct at issue\xe2\x80\x94the University\xe2\x80\x99s\nselection of faculty\xe2\x80\x94was not made by the University \xe2\x80\x9cunder statutory\ncompulsion\xe2\x80\x9d or pursuant to the \xe2\x80\x9cdictates of the government.\xe2\x80\x9d Id. at 20\xe2\x80\x9321\n(quoting McKinney v. Univ. of Guelph, [1990] 3 S.C.R. 229, 269 (Can.)\n(plurality op.)).\nSimilar considerations of autonomy informed our view that a federal\nofficer could serve as a consultant to Harvard University on a project\nfunded by the government of Indonesia. See Trip to Indonesia at 5. Although the consulting services were to be rendered for the benefit of\nIndonesia and the individual consultant\xe2\x80\x99s expenses were to be reimbursed\nby Harvard from funds paid by Indonesia, we identified no violation of\nthe Emoluments Clause. We reached this conclusion in significant part\nbecause, under the consulting arrangement, Harvard had the sole discretion over the consultants it chose, and Indonesia had no veto power\nover those choices. Id. (\xe2\x80\x9cSince . . . the foreign government neither controls nor even influences the selection and payment of consultants, the\nEmoluments Clause is not implicated.\xe2\x80\x9d).\nIn light of these precedents, we believe that it is significant that the\nNobel Committee\xe2\x80\x99s selection of the Peace Prize recipient is independent\nof the dictate or influence of the Norwegian government. As far as we are\naware, the Norwegian government has no authority to compel the Committee to choose the Prize recipient; nor does it have any veto authority\nwith respect to the selection by the Committee members, who, in any\nevent, are not appointed by a single official to whom they are accountable, but are instead elected by the multimember Storting. See Nobel\nFoundation Statutes \xc2\xa7 1. To be sure, Norwegian government officials may\n382\n\n\x0cPresident\xe2\x80\x99s Receipt of the Nobel Peace Prize\n\nsubmit nominations to the Committee, but that opportunity is shared by\nany \xe2\x80\x9c[m]embers of national assemblies and governments of states,\xe2\x80\x9d along\nwith \xe2\x80\x9cUniversity rectors\xe2\x80\x9d and \xe2\x80\x9cprofessors of social sciences, history,\nphilosophy, law and theology.\xe2\x80\x9d Nobel Peace Prize Regulations \xc2\xa7 3. Indeed, the formal process of nomination and selection of a Prize recipient\nis not guided by the government, but by the private, Sweden-based Nobel\nFoundation and the Nobel Committee. 8 For example, pursuant to the\nFoundation\xe2\x80\x99s rules, no prize-awarding body, including the Peace Prize\nCommittee, may reveal the details of its deliberations \xe2\x80\x9cuntil at least 50\nyears have elapsed after the date on which the decision in question was\nmade.\xe2\x80\x9d Nobel Foundation Statutes \xc2\xa7 10. We have found no indication that\nthe Norwegian government or its officials, if requesting such information,\nwould be exempt from this restraint on disclosure. Other aspects of the\nselection process, including guidelines on nominations and supporting\nmaterials, are either provided in the private Foundation\xe2\x80\x99s statutes or\ndelegated by the Foundation\xe2\x80\x94not by the Norwegian government\xe2\x80\x94to the\nprize-awarding bodies, including the Peace Prize Committee. E.g., id. \xc2\xa7 7\n(\xe2\x80\x9cTo be considered eligible for an award, it is necessary to be nominated\nin writing by a person competent to make such a nomination.\xe2\x80\x9d). These\nformal limits on the capacity of the Norwegian government to influence,\nlet alone control, the Committee\xe2\x80\x99s decision, are consistent with the Committee\xe2\x80\x99s own repeated assertions of its independence. See T\xc3\xb8nnesson.\nThe Government of Norway\xe2\x80\x99s financial connection to the Nobel Committee is even more attenuated. It appears that the members of the Nobel\nCommittee are compensated for their services by the privately funded\nNobel Foundation, see Canter E-mail, and the precise amount of the\nremuneration is set by the Nobel Committee, not the Norwegian government. See Nobel Foundation Statutes \xc2\xa7 6. The Peace Prize itself, including\n\nThe Storting appears to have the limited authority only to approve \xe2\x80\x9c[i]nstructions\nconcerning the election of members of the Nobel Committee\xe2\x80\x9d itself. See Nobel Foundation Regulations \xc2\xa7 9. Any other amendments to the Committee\xe2\x80\x99s rules of operation,\nincluding its award selection guidelines, are decided upon by the Committee itself, after\nviews are solicited from the Nobel Foundation. Id. (\xe2\x80\x9cProposals for amendments to other\nprovisions of these regulations may be put forward by members of the Norwegian Nobel\nCommittee or by members of the Board of Directors of the Nobel Foundation. Before the\nNorwegian Nobel Committee makes a decision concerning the proposal, it shall be\nsubmitted to the Board of Directors of the Nobel Foundation for an opinion.\xe2\x80\x9d).\n8\n\n383\n\n\x0c33 Op. O.L.C. 370 (2009)\n\nits cash award and other elements, is funded by the Nobel Foundation,\nwhich alone is responsible for ensuring that all of the Nobel prizeawarding bodies can accomplish their purposes and which is itself financed by private investments and not government funding. Id. \xc2\xa7 14\n(\xe2\x80\x9cThe Board [of the Foundation] shall administer the property of the\nFoundation for the purposes of maintaining good long-term prizeawarding capacity and safeguarding the value of the Foundation\xe2\x80\x99s assets\nin real terms.\xe2\x80\x9d); see also The Nobel Foundation\xe2\x80\x99s Income Statement\n(2008), http://nobelprize.org/nobelfoundation/incomes.html (last visited\nDec. 7, 2009); Lemmel (describing Nobel Foundation\xe2\x80\x99s investment strategies to ensure financial base of Nobel Prizes).\nThus, in our view, the only potentially relevant tie to the Norwegian\ngovernment is that, in accordance with Alfred Nobel\xe2\x80\x99s will, the Storting\nelects the Nobel Committee\xe2\x80\x99s five members. Further, we are aware that,\nnotwithstanding the rules generally barring sitting members of the Storting from the Nobel Committee, two members of the Storting served on\nthe Committee for several months before leaving their parliamentary\nseats. However, in light of the strong basis for the Committee\xe2\x80\x99s autonomy,\nboth as to the decision it makes and the finances upon which it draws, we\ndo not view the Storting\xe2\x80\x99s appointment authority, or a minority of the\nCommittee members\xe2\x80\x99 short-term overlap with parliamentary service, as\nhaving dispositive significance.\nNor has our Office done so in the past in analogous cases. In determining that an award to a Navy scientist from the Alexander von Humboldt\nFoundation was from the German government for the purposes of the\nEmoluments Clause, for example, we noted that the \xe2\x80\x9cawards are made by\na \xe2\x80\x98Special Committee,\xe2\x80\x99 on which the Federal Ministries for Foreign Affairs and Research and Technology are represented.\xe2\x80\x9d See Letter for Walter\nT. Skallerup, Jr., General Counsel, Department of the Navy, from Robert\nB. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel at\n2 (Mar. 17, 1983). But we did not indicate that the presence of the government ministers on the award committee was the decisive factor in our\nanalysis. Instead, we also noted that the Foundation was reestablished\n(because it had once been dissolved) by the Federal Republic of Germany,\nspecifically by its Ministry of Foreign Affairs. In addition, we noted that\nthe Foundation that administered the award was financed mainly through\nannual payments from the West German government. See id. By contrast,\n384\n\n\x0cPresident\xe2\x80\x99s Receipt of the Nobel Peace Prize\n\nthe Nobel Committee is financed by the private Nobel Foundation, and\nalthough the Norwegian government may have formally established the\nCommittee (as the \xe2\x80\x9cNobel Committee of the Norwegian Storting\xe2\x80\x9d), it did\nso pursuant to a private individual\xe2\x80\x99s will, which assigned the Storting the\nlimited role of electing the Committee\xe2\x80\x99s members, who would be charged\nwith exercising their independent judgments.\nLikewise, we concluded that the University of British Columbia in hiring faculty was not acting as a foreign state for the purposes of the Emoluments Clause\xe2\x80\x94notwithstanding the provincial government\xe2\x80\x99s power to\nappoint a majority of the members of the University\xe2\x80\x99s board of governors.\nPublic Universities, 18 Op. O.L.C. at 14, 22 (citing Harrison v. Univ. of\nBritish Columbia, [1990] 3 S.C.R. 451, 459 (Can.) (plurality op.)). We\nalso determined that the Prince Mahidol Foundation was not an instrumentality of the Government of Thailand for the purposes of the Emoluments Clause, although several officials of the Thai government and the\nRoyal Princess of Thailand sat on the Foundation\xe2\x80\x99s board. Memorandum\nfor the File from Daniel L. Koffsky, Office of Legal Counsel, Re: Application of the Emoluments Clause to a U.S. Government Employee Who\nPerforms Services for the Prince Mahidol Foundation (Nov. 19, 2002)\n(\xe2\x80\x9cPrince Mahidol Foundation\xe2\x80\x9d). 9 In each case, we found countervailing\nindications of autonomy to be more significant. As noted above, we\nconcluded that the University of British Columbia\xe2\x80\x99s faculty decisions,\nincluding contract negotiations and collective bargaining, were not subject\nto governmental compulsion. Public Universities, 18 Op. O.L.C. at 20\xe2\x80\x9321\n(noting University\xe2\x80\x99s \xe2\x80\x9c\xe2\x80\x98legal autonomy\xe2\x80\x99\xe2\x80\x9d). And despite the presence of the\nThai government and royalty, we determined that the decision-making\nprocess of the Prince Mahidol Foundation\xe2\x80\x99s Board evidenced \xe2\x80\x9cindepend9 Similarly, the Supreme Court has indicated that a government\xe2\x80\x99s appointment authority is not given dispositive weight in determining whether a nominally private entity is, in\nfact, \xe2\x80\x9cwhat the Constitution regards as the Government.\xe2\x80\x9d See Lebron v. Nat\xe2\x80\x99l R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (holding that Amtrak was a state actor subject to\nthe First Amendment). That the federal government appointed a majority of Amtrak\xe2\x80\x99s\ndirectors was not considered to be of controlling importance. As the Lebron Court observed, the Consolidated Rail Corporation (\xe2\x80\x9cConrail\xe2\x80\x9d) was held \xe2\x80\x9cnot to be a federal\ninstrumentality, despite the President\xe2\x80\x99s power to appoint, directly or indirectly, 8 of its 15\ndirectors.\xe2\x80\x9d Id. at 399; see also Regional Rail Reorganization Act Cases, 419 U.S. 102, 152\n(1974) (\xe2\x80\x9cConrail is not a federal instrumentality by reason of the federal representation on\nits board of directors.\xe2\x80\x9d).\n\n385\n\n\x0c33 Op. O.L.C. 370 (2009)\n\nent judgment.\xe2\x80\x9d Prince Mahidol Foundation at 4 (also noting that \xe2\x80\x9cmost of\nthe funds for the Foundation do not come from the [Thai] government\xe2\x80\x9d).\nThese same considerations concerning the exercise of independent judgment and financial autonomy are at least as present here.\nIn sum, determining whether an entity is an instrumentality of a foreign\ngovernment is necessarily a fact-bound inquiry, see Application of the\nEmoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982) (\xe2\x80\x9cEach situation must . . . be\njudged on its facts.\xe2\x80\x9d), and the weight of the evidence in light of this Office\xe2\x80\x99s consistent precedents\xe2\x80\x94and as reinforced by the substantial historical practice\xe2\x80\x94demonstrates that the awarding of the privately financed\nPeace Prize through the Nobel Committee does not constitute the conferral of a present or emolument by a \xe2\x80\x9cforeign State\xe2\x80\x9d for the purposes of the\nEmoluments Clause.\nIII.\nOur reasoning regarding the Emoluments Clause is equally applicable\nto the Foreign Gifts and Decorations Act. The Act provides express consent for officials to accept \xe2\x80\x9cgifts and decorations\xe2\x80\x9d from \xe2\x80\x9cforeign government[s]\xe2\x80\x9d under certain limited circumstances not present here. See\n5 U.S.C. \xc2\xa7 7342(b) (2006) (\xe2\x80\x9cAn employee may not . . . accept a gift or\ndecoration, other than in accordance with the provisions of\xe2\x80\x9d the Act); see\nalso id. \xc2\xa7 7342(a)(1)(E) (providing that the President is subject to the\nAct). Section 7342(a)(2) defines the term \xe2\x80\x9cforeign government\xe2\x80\x9d as follows:\n\xe2\x80\x9cforeign government\xe2\x80\x9d means\xe2\x80\x94\n(A) any unit of foreign governmental authority, including any foreign national, State, local, and municipal government;\n(B) any international or multinational organization whose membership is composed of any unit of foreign government described in\nsubparagraph (A); and\n(C) any agent or representative of any such unit or such organization, while acting as such.\nWhile we do not necessarily assume that Congress intended the meaning of \xe2\x80\x9cforeign government\xe2\x80\x9d to be coextensive with the constitutional\n386\n\n\x0cPresident\xe2\x80\x99s Receipt of the Nobel Peace Prize\n\nterm \xe2\x80\x9cforeign State,\xe2\x80\x9d we have recognized that the Act\xe2\x80\x99s reference to \xe2\x80\x9cany\nunit of foreign governmental authority\xe2\x80\x9d is likely narrower in scope than\nthe Emoluments Clause. See ACUS, 17 Op. O.L.C. at 121 (recognizing\nthat corporations owned or controlled by foreign States are arguably not\n\xe2\x80\x9cunits of foreign governmental authority,\xe2\x80\x9d although they are presumptively subject to the Emoluments Clause); cf. S. Rep. No. 95-194, at 29 (1977)\n(definition of \xe2\x80\x9cforeign government\xe2\x80\x9d intended to reach \xe2\x80\x9cforeign governmental subdivision(s)\xe2\x80\x9d and \xe2\x80\x9cquasi-government organizations\xe2\x80\x9d). For the\nreasons discussed in detail above, the Nobel Committee in choosing the\nrecipients of the Peace Prize, like the Nobel Foundation in financing the\nPrize, operates as a private non-governmental organization and not as a\n\xe2\x80\x9cunit\xe2\x80\x9d of a foreign government. Moreover, given the Foundation\xe2\x80\x99s private\nnature and the facts that the Committee acts independently of any government and is not required to include any government officials on it, see\nThe Norwegian Nobel Committee, http://nobelprize.org/prize_awarders/\npeace/committee.html (last visited Nov. 23, 2009) (\xe2\x80\x9cAlthough this is not a\nrequirement, all committee members have been Norwegian nationals.\xe2\x80\x9d),\nwe conclude that neither is an \xe2\x80\x9cinternational or multinational organization\xe2\x80\x9d because neither is \xe2\x80\x9ccomposed of any unit of foreign government,\xe2\x80\x9d\nlet alone composed of units of more than one foreign government.\n5 U.S.C. \xc2\xa7 7342(a)(2)(B); see also Emoluments Clause and World Bank,\n25 Op. O.L.C. 113, 117 (2001) (concluding that international organizations of which the United States is a member are not generally subject to\nthe Emoluments Clause and observing that the Act\xe2\x80\x99s coverage of international organizations was likely \xe2\x80\x9cmotivated by policy concerns as opposed\nto constitutional ones\xe2\x80\x9d). Nor is the Committee as a whole, or, by extension, the Nobel Foundation in financing the Prize, an \xe2\x80\x9cagent or representative\xe2\x80\x9d of any unit of a foreign government or any international organization\nfor purposes of the Act. Although two members of the Committee continued to serve in the Storting before leaving their parliamentary seats, we\ndo not believe this limited tie between the Government of Norway and the\nCommittee, affecting a minority of the Committee\xe2\x80\x99s members, transformed the Nobel Committee into an agent or representative of the Norwegian Government. Id. \xc2\xa7 7342(a)(2)(C). The countervailing indications\nof autonomy described above support that conclusion. Consequently, the\nForeign Gifts and Decorations Act poses no bar to the President\xe2\x80\x99s receipt\nof the Peace Prize.\n387\n\n\x0c33 Op. O.L.C. 370 (2009)\n\nIV.\nFor the reasons given above, we conclude that neither the Emoluments\nClause nor the Foreign Gifts and Decorations Act prohibits the President\nfrom receiving the Nobel Peace Prize without congressional consent.\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n388\n\n\x0c'