b'Special Government Employee Serving as\nPaid Consultant to Saudi Company\nA special government employee, retained to provide advice on behalf of the Department\nof Commerce to Middle Eastern countries that are reforming and harmonizing their\nlaws, may accept a paid consulting position with a Saudi energy company without violating the Emoluments Clause, U.S. Const. art. I, \xc2\xa7 9, cl. 8, because he does not hold\nan \xe2\x80\x9cOffice of Profit or Trust under\xe2\x80\x9d the United States.\nJanuary 13, 2016\n\nMEMORANDUM OPINION FOR THE\nASSISTANT GENERAL COUNSEL\nADMINISTRATION AND TRANSACTIONS\nDEPARTMENT OF COMMERCE\nYour Office has asked whether the Emoluments Clause of the Constitution would bar a special government employee of the Department of\nCommerce (\xe2\x80\x9cDepartment\xe2\x80\x9d) from accepting a paid consulting position with\na Saudi entity known as the King Abdullah City for Atomic and Renewable Energy (\xe2\x80\x9cKA-CARE\xe2\x80\x9d). See Memorandum for Karl Rem\xc3\xb3n Thompson, Acting Assistant Attorney General, Office of Legal Counsel, from\nBarbara S. Fredericks, Assistant General Counsel for Administration,\nDepartment of Commerce, Re: Applicability of Emoluments Clause to a\nSpecial Government Employee (May 16, 2014) (\xe2\x80\x9cCommerce Memo\xe2\x80\x9d). The\nEmoluments Clause forbids anyone \xe2\x80\x9cholding any Office of Profit or Trust\nunder\xe2\x80\x9d the United States from accepting, without congressional consent,\n\xe2\x80\x9cany present, Emolument, Office, or Title, of any kind whatever, from any\nKing, Prince, or foreign State.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 9, cl. 8. We orally\nadvised your Office that the special government employee in question\nmay accept the consulting position without violating the Emoluments\nClause, because, on the facts described to us, he does not hold an \xe2\x80\x9cOffice\nof Profit or Trust under\xe2\x80\x9d the United States. This memorandum opinion\nmemorializes and further describes the basis for our advice. 1\nBecause we conclude that the employee in question does not hold an \xe2\x80\x9cOffice of Profit\nor Trust under\xe2\x80\x9d the United States, we do not address in this memorandum opinion whether\nKA-CARE is an instrumentality of the Saudi Government, and thus whether the compensation and position the special government employee would receive from KA-CARE\n1\n\n1\n\n\x0c40 Op. O.L.C. 1 (2016)\n\nI.\nYour Office has explained that one of the Department\xe2\x80\x99s special government employees wishes to accept a paid consulting position with KACARE. 2 The Department hired the employee as an expert in the Commercial Law Development Program, a division of the Department that \xe2\x80\x9chelps\nachieve U.S. foreign policy goals by providing technical assistance (such\nas capability building, peer-to-peer best practices awareness, and empowerment of civil society organizations) to developing and post-conflict\ncountries in helping to establish commercial legal reforms.\xe2\x80\x9d Commerce\nMemo at 1; see also About CLDP, http://cldp.doc.gov/about-cldp (last\nvisited Jan. 11, 2016). The employee, who is both an attorney and a\nscholar in Sharia law, assists the Commercial Law Development Program\nin its collaborations with Middle Eastern countries that are reforming and\nharmonizing their laws. Commerce Memo at 1. His duties are to \xe2\x80\x9crevise,\nupdate and build capacity to harmonize relevant laws and regulations so\nthat they may help attract responsible international investment to the\nregion,\xe2\x80\x9d and to \xe2\x80\x9cprovide legal expertise and advice to countries\xe2\x80\x9d in a\nmanner that is sensitive to those countries\xe2\x80\x99 cultural norms. Id. The employee\xe2\x80\x99s assignments have included speaking at colloquia and seminars in\nthe Middle East and reviewing proposed commercial laws for consistency\nwith local customs, cultural sensitivities, and religious norms. Jacobi\nE-mail. The employee does not have discretionary authority to disburse\nfederal funds or property. Commerce Memo at 1. Nor does he formulate\nfederal policy, supervise other federal employees, or have access to classified materials. Id.\nThe Department hired the special government employee for a one-year\nterm that may, but need not, be renewed, and for duties to be performed\non an intermittent rather than full-time basis. Id.; see also 18 U.S.C.\n\nwould be an \xe2\x80\x9cEmolument [or] Office . . . of any kind whatever, from any King, Prince, or\nforeign State.\xe2\x80\x9d\n2 We describe KA-CARE in more detail below. For facts regarding KA-CARE, the\nDepartment\xe2\x80\x99s Commercial Law Development Program, and the responsibilities of the\nspecial government employee at issue, we rely chiefly on information submitted to us by\nthe Department. See Commerce Memo; E-mail for Jane Nitze, Attorney-Adviser, Office\nof Legal Counsel, from Will Jacobi, Senior Attorney, Department of Commerce, Re:\nEmoluments question (Apr. 28, 2014, 8:55 AM) (\xe2\x80\x9cJacobi E-mail\xe2\x80\x9d).\n\n2\n\n\x0cSpecial Government Employee Serving as Paid Consultant to Saudi Company\n\n\xc2\xa7 202(a) (defining \xe2\x80\x9cspecial Government employee\xe2\x80\x9d to include \xe2\x80\x9can officer\nor employee of the executive . . . branch of the United States Government\n. . . who is retained, designated, appointed, or employed to perform, with\nor without compensation, for not to exceed one hundred and thirty days\nduring any period of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis\xe2\x80\x9d). He receives\nassignments from the Commercial Law Development Program, with the\nlength of an assignment generally varying from an hour to several days.\nCommerce Memo at 1; Jacobi E-mail. The employee is compensated at an\nhourly rate, files financial disclosure forms, and took an oath of office.\nCommerce Memo at 1.\nKA-CARE was established by Saudi royal decree as an independent\nlegal entity with the \xe2\x80\x9caim of building a sustainable future for Saudi Arabia by developing a substantial alternative energy capacity fully supported by world-class local industries.\xe2\x80\x9d The Establishing Order, https://\nwww.kacare.gov.sa/en/about/Pages/royalorder.aspx (last visited Jan. 11,\n2016); see also Commerce Memo at 1. The entity is substantially funded\nby the Saudi Government. Commerce Memo at 1. Its \xe2\x80\x9chighest authority\xe2\x80\x9d\nis the \xe2\x80\x9csupreme council,\xe2\x80\x9d composed largely of high-ranking government\nofficials, whose role is to \xe2\x80\x9csupervise and undertake the affairs\xe2\x80\x9d of KACARE and to \xe2\x80\x9ctake all necessary decisions to achieve the purposes of\nthe City.\xe2\x80\x9d Royal Decree Establishing King Abdullah City for Atomic and\nRenewable Energy 6 (Feb. 2010) (\xe2\x80\x9cRoyal Decree\xe2\x80\x9d), https://www.kacare.\ngov.sa/en/about/Documents/KACARE_Royal_Decree_english.pdf. Three\nsenior executive officials\xe2\x80\x94a president and two vice presidents\xe2\x80\x94lead\nKA-CARE\xe2\x80\x99s day-to-day activities. Id.; Leadership, https://www.kacare.\ngov.sa/en/about/Pages/highmanagement.aspx (last visited Jan. 7, 2016);\nsee also Commerce Memo at 1. The three senior executive officials are\nappointed by royal decree, see Royal Decree at 6; Commerce Memo\nat 1, but are not considered Saudi government officials under Saudi law,\nCommerce Memo at 1.\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\n3\n\n\x0c40 Op. O.L.C. 1 (2016)\n\nwhatever, from any King, Prince, or foreign State.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 9,\ncl. 8. As we recently explained, \xe2\x80\x9c[t]he Clause was intended to \xe2\x80\x98preserv[e]\nforeign Ministers & other officers of the U.S. independent of external\ninfluence\xe2\x80\x99 by foreign governments.\xe2\x80\x9d NOAA Employee\xe2\x80\x99s Receipt of the\nG\xc3\xb6teborg Award for Sustainable Development, 34 Op. O.L.C. 210, 211\n(2010) (second alteration in original) (quoting 2 The Records of the Federal Convention of 1787, at 389 (Max Farrand ed., rev. ed. 1966) (notes of\nJames Madison)).\nAlthough the purpose of the Emoluments Clause is broad, \xe2\x80\x9c[its] text\n. . . makes clear that it applies only to a specified class of persons\xe2\x80\x94i.e.,\nthose who hold offices of profit or trust under the United States\xe2\x80\x94and not\nto all positions in the United States government.\xe2\x80\x9d Applicability of the\nEmoluments Clause to Non-Government Members of ACUS (II), 34 Op.\nO.L.C. 181, 185 (2010) (\xe2\x80\x9cACUS II \xe2\x80\x9d). Our precedents reflect this textual\nlimitation. For example, we have advised that members of the Federal\nBureau of Investigation Director\xe2\x80\x99s Advisory Board do not hold \xe2\x80\x9cOffice[s]\nof Profit or Trust\xe2\x80\x9d under the meaning of the Clause, notwithstanding the\nfact that they are entrusted with access to classified information. See Application of the Emoluments Clause to a Member of the FBI Director\xe2\x80\x99s\nAdvisory Board, 31 Op. O.L.C. 154 (2007) (\xe2\x80\x9cFBI Advisory Board \xe2\x80\x9d). We\nlikewise have advised that nongovernmental members of the Administrative Conference of the United States (\xe2\x80\x9cACUS\xe2\x80\x9d) do not hold \xe2\x80\x9cOffice[s] of\nProfit or Trust,\xe2\x80\x9d even though ACUS\xe2\x80\x99s \xe2\x80\x9crecommendations may \xe2\x80\x98have had\n(and were intended to have) a significant effect on the Government\xe2\x80\x99s\nadministrative processes.\xe2\x80\x99\xe2\x80\x9d ACUS II, 34 Op. O.L.C. at 190 (quoting Applicability of the Emoluments Clause to Non-Government Members of\nACUS, 17 Op. O.L.C. 114, 117 (1993) (\xe2\x80\x9cACUS I \xe2\x80\x9d)); see also Application\nof the Emoluments Clause to a Member of the President\xe2\x80\x99s Council on\nBioethics, 29 Op. O.L.C. 55 (2005) (\xe2\x80\x9cCouncil on Bioethics\xe2\x80\x9d) (concluding\nthat members of the President\xe2\x80\x99s Council on Bioethics do not hold offices\nof profit or trust, even though members advise the President on a range of\nbioethical issues).\nIn considering whether individuals hold \xe2\x80\x9cOffice[s] of Profit or Trust\nunder\xe2\x80\x9d the United States for purposes of the Emoluments Clause, we\nhave relied on two different analytic frameworks. In some opinions, we\nhave indicated that only those persons considered \xe2\x80\x9cOfficers of the United States\xe2\x80\x9d for purposes of the Appointments Clause, U.S. Const. art. II,\n4\n\n\x0cSpecial Government Employee Serving as Paid Consultant to Saudi Company\n\n\xc2\xa7 2, cl. 2, may hold an \xe2\x80\x9cOffice of Profit or Trust\xe2\x80\x9d under the Emoluments\nClause, and therefore focused our analysis on whether the relevant individuals were \xe2\x80\x9cOfficers of the United States.\xe2\x80\x9d See, e.g., FBI Advisory\nBoard, 31 Op. O.L.C. at 156 (\xe2\x80\x9cThe threshold question . . . in determining whether a member of the Board holds an \xe2\x80\x98Office of Profit or Trust\nunder [the United States]\xe2\x80\x99 is whether a position on the Board is an\n\xe2\x80\x98Office under the United States.\xe2\x80\x99\xe2\x80\x9d (brackets in original)); Council on\nBioethics, 29 Op. O.L.C. at 71 (\xe2\x80\x9cA position that carried with it no governmental authority (significant or otherwise) would not be an office for\npurposes of the Appointments Clause, and therefore, under that analysis\n. . . would not be an office under the Emoluments Clause[.]\xe2\x80\x9d); see also\nApplication of Emoluments Clause to Part-Time Consultant for the\nNuclear Regulatory Commission, 10 Op. O.L.C. 96, 98 (1986) (\xe2\x80\x9cPartTime Consultant\xe2\x80\x9d) (\xe2\x80\x9cPrior opinions of this Office have assumed . . . that\nthe persons covered by the Emoluments Clause were \xe2\x80\x98officers of the\nUnited States\xe2\x80\x99 in the sense used in the Appointments Clause.\xe2\x80\x9d); Delivery\nof an Insignia from the German Emperor to a Clerk in the Post-Office\nDepartment, 27 Op. Att\xe2\x80\x99y Gen. 219, 220\xe2\x80\x9321 (1909) (reasoning that a\nclerk in the Post Office is an inferior officer within the meaning of the\nAppointments Clause, and so \xe2\x80\x9c[i]t follows\xe2\x80\x9d that he is subject to the\nEmoluments Clause).\nIn other opinions, we have indicated or assumed that the Emoluments\nClause may apply to persons who are not \xe2\x80\x9cOfficers of the United States\xe2\x80\x9d\nunder the Appointments Clause, and evaluated individuals\xe2\x80\x99 status for\nEmoluments Clause purposes by considering a set of factors designed to\n\xe2\x80\x9censure that concerns about foreign corruption and influence are accounted for.\xe2\x80\x9d ACUS II, 34 Op. O.L.C. at 187; see, e.g., The Advisory Committee\non International Economic Policy, 20 Op. O.L.C. 123 (1996) (\xe2\x80\x9cIEP\xe2\x80\x9d)\n(concluding that members of a federal advisory committee do not hold\noffices of profit or trust based on consideration of several factors); Applicability of Emoluments Clause to \xe2\x80\x9cRepresentative\xe2\x80\x9d Members of Advisory Committees, 21 Op. O.L.C. 176 (1997) (\xe2\x80\x9cRepresentative Members\xe2\x80\x9d)\n(extending IEP\xe2\x80\x99s conclusion to members of a federal advisory committee\nchosen to present the views of private organizations and interests); see\nalso Authority of Foreign Law Enforcement Agents to Carry Weapons in\nthe United States, 12 Op. O.L.C. 67, 68 (1988) (\xe2\x80\x9cAuthority of Foreign\nLaw Enforcement Agents\xe2\x80\x9d) (\xe2\x80\x9c[T]he Clause applies to all persons holding\n5\n\n\x0c40 Op. O.L.C. 1 (2016)\n\nan office of profit or trust under the United States, and not merely to that\nsmaller group of persons who are deemed to be \xe2\x80\x98officers of the United\nStates\xe2\x80\x99 for purposes of Article II, Section 2 of the Constitution.\xe2\x80\x9d); Application of the Emoluments Clause of the Constitution and the Foreign Gifts\nand Decorations Act, 6 Op. O.L.C. 156, 157 (1982) (\xe2\x80\x9cIt is not clear . . .\nthat the words \xe2\x80\x98any Office of Profit or Trust,\xe2\x80\x99 as used in the Emoluments\nClause, should be limited to persons considered \xe2\x80\x98Officers\xe2\x80\x99 under the\nAppointments Clause. Both the language and the purpose of the two\nprovisions are significantly different.\xe2\x80\x9d). See generally ACUS II, 34 Op.\nO.L.C. at 184\xe2\x80\x9387 (describing approaches historically adopted by our\nOffice in defining the reach of the Emoluments Clause). 3\nMost recently, we declined to definitively pick one approach over the\nother when doing so was not necessary to resolve the question presented.\nIn evaluating whether nongovernmental members of the Administrative\nConference of the United States held \xe2\x80\x9cOffice[s] of Profit or Trust\xe2\x80\x9d under\nthe Emoluments Clause, we noted that such members would \xe2\x80\x9cplainly\xe2\x80\x9d not\nhold such offices under the first approach, \xe2\x80\x9cgiven the purely advisory\nfunctions of ACUS.\xe2\x80\x9d Id. at 187. But we further explained that we did not\n\xe2\x80\x9cneed\xe2\x80\x9d to \xe2\x80\x9crest our decision on that ground,\xe2\x80\x9d because nongovernmental\nmembers of ACUS \xe2\x80\x9ccannot be deemed to hold the kind of office to which\nthe Emoluments Clause applies\xe2\x80\x9d even under the alternative multi-factor\ntest. Id. We thus concluded that such persons were not covered by the\nEmoluments Clause, \xe2\x80\x9ceven assuming that the Clause may apply in some\ninstances to persons who do not hold an office under the Appointments\nClause.\xe2\x80\x9d Id. at 192.\nWe will follow the same approach here: we will not decide whether an\n\xe2\x80\x9cOffice of Profit or Trust\xe2\x80\x9d for purposes of the Emoluments Clause must\nalso be an \xe2\x80\x9cOffice\xe2\x80\x9d for purposes of the Appointments Clause, or whether\nan \xe2\x80\x9cOffice of Profit or Trust\xe2\x80\x9d is a broader category defined by a range of\nrelevant factors, because under either approach, the special government\n\n3 The reach of the Emoluments Clause under this second approach, as well as the set\nof factors our Office has considered significant, have varied over time. Compare, e.g.,\nACUS II, 34 Op. O.L.C. at 187\xe2\x80\x9392 (concluding under range of factors that nongovernmental members of ACUS do not hold offices of profit or trust), with ACUS I, 17 Op.\nO.L.C. at 117 (concluding under range of factors that nongovernmental members of\nACUS do hold offices of profit or trust).\n\n6\n\n\x0cSpecial Government Employee Serving as Paid Consultant to Saudi Company\n\nemployee at issue here does not occupy an \xe2\x80\x9cOffice of Profit or Trust\nunder\xe2\x80\x9d the United States.\nA.\nWe explain first why the special government employee at issue would\nnot be an \xe2\x80\x9cOfficer[] of the United States\xe2\x80\x9d for purposes of the Appointments Clause. As an initial matter, the special government employee does\nnot appear to exercise \xe2\x80\x9cdelegated sovereign authority\xe2\x80\x9d of the United\nStates, Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 78 (2007) (\xe2\x80\x9cOfficers of the United\nStates\xe2\x80\x9d), or to exercise \xe2\x80\x9csignificant authority pursuant to the laws of the\nUnited States,\xe2\x80\x9d The Constitutional Separation of Powers Between the\nPresident and Congress, 20 Op. O.L.C. 124, 143 (1996) (\xe2\x80\x9cSeparation of\nPowers\xe2\x80\x9d) (quoting and adding emphasis to Buckley v. Valeo, 424 U.S. 1,\n126 (1976) (per curiam)). He does not have authority to \xe2\x80\x9cadminister,\nexecute, or interpret the law,\xe2\x80\x9d Officers of the United States, 31 Op. O.L.C.\nat 87; see also Separation of Powers, 20 Op. O.L.C. at 144 (members of a\ncommission with purely advisory functions are not officers of the United\nStates \xe2\x80\x9cbecause they \xe2\x80\x98possess no enforcement authority or power to bind\nthe Government\xe2\x80\x99\xe2\x80\x9d (quoting Proposed Commission on Deregulation of\nInternational Ocean Shipping, 7 Op. O.L.C. 202, 202\xe2\x80\x9303 (1983))); to\n\xe2\x80\x9cissue regulations and authoritative legal opinions on behalf of the government,\xe2\x80\x9d Officers of the United States, 31 Op. O.L.C. at 88; see also\nSeparation of Powers, 20 Op. O.L.C. at 144 n.55 (discussing significance\nof judges\xe2\x80\x99 authority to issue final decisions); or to \xe2\x80\x9creceive and oversee\nthe public\xe2\x80\x99s funds,\xe2\x80\x9d Officers of the United States, 31 Op. O.L.C. at 90.\nNor does he possess diplomatic authority, except in the very diffuse sense\nof performing consultative functions that may advance U.S. foreign policy\ngoals. Compare id. at 91\xe2\x80\x9392 (diplomatic offices have the \xe2\x80\x9cauthority to\nspeak and act on behalf of the United States toward or in other nations,\xe2\x80\x9d\nin particular by exercising the delegated authority of the President to\n\xe2\x80\x9c\xe2\x80\x98negotiate[] and sign[] a treaty\xe2\x80\x99\xe2\x80\x9d (alterations in original) (quoting Ambassadors and Other Public Ministers of the United States, 7 Op. Att\xe2\x80\x99y\nGen. 186, 212 (1855))). As long as the special government employee is\nnot engaged in actual negotiations with other countries, we do not believe\nthe advice he might provide about how countries can attract international\n7\n\n\x0c40 Op. O.L.C. 1 (2016)\n\ninvestment or harmonize proposed legal reforms with their cultural and\nreligious norms would qualify as the exercise of \xe2\x80\x9cdelegated sovereign\nauthority\xe2\x80\x9d or \xe2\x80\x9csignificant authority\xe2\x80\x9d for Appointments Clause purposes.\nFurther, the special government employee does not appear to hold the\nessential features of a federal office\xe2\x80\x94in particular, \xe2\x80\x9ctenure,\xe2\x80\x9d \xe2\x80\x9cduration,\xe2\x80\x9d\nand \xe2\x80\x9ccontinuous duties.\xe2\x80\x9d See Separation of Powers, 20 Op. O.L.C. at 141\xe2\x80\x93\n42 (quoting Auffmordt v. Hedden, 137 U.S. 310, 327 (1890)); accord\nUnited States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868) (duties of an\nofficer are \xe2\x80\x9ccontinuing and permanent, not occasional or temporary\xe2\x80\x9d);\nOfficers of the United States, 31 Op. O.L.C. at 100 (\xe2\x80\x9cThe second element\nof a federal \xe2\x80\x98office,\xe2\x80\x99 necessary to make a position subject to the Appointments Clause, is that the position be \xe2\x80\x98continuing\xe2\x80\x99\xe2\x80\x9d\xe2\x80\x94not \xe2\x80\x9cpersonal, \xe2\x80\x98transient,\xe2\x80\x99 or \xe2\x80\x98incidental.\xe2\x80\x99\xe2\x80\x9d). He serves under a one-year contract and receives\nassignments from the Commercial Law Development Program on a caseby-case basis; his duties, hours, and compensation are thus not continuing\nand permanent but depend entirely on a supervisory determination that his\nservices are needed in a particular case. Put differently, \xe2\x80\x9c[h]e is an expert,\nselected as such. . . . He is selected for the special case. He has no general\nfunctions, nor any employment which has any duration as to time, or\nwhich extends over any case further than as he is selected to act in that\nparticular case.\xe2\x80\x9d Auffmordt, 137 U.S. at 326\xe2\x80\x9327 (deeming a merchant\nappraiser not to be a federal officer); see also United States v. Germaine,\n99 U.S. (9 Otto) 508, 512 (1878) (deeming a surgeon not to be a federal\nofficer because he was \xe2\x80\x9conly to act when called on by the Commissioner\nof Pensions in some special case\xe2\x80\x9d). The employee does receive an emolument from the federal government in the form of an hourly wage, but not\na \xe2\x80\x9ccontinuing emolument,\xe2\x80\x9d see Auffmordt, 137 U.S. at 327, in the form of\na government salary or guaranteed work flow, and this Office has not\ntreated receipt of such an emolument as a feature that, by itself, would\nrender an individual an officer for Appointments Clause purposes, see\nOfficers of the United States, 31 Op. O.L.C. at 120\xe2\x80\x9321 (\xe2\x80\x9cIn cases holding\nthat temporary positions were not offices, courts have remarked that the\npay provided was per diem or otherwise based on the amount of work\ndone, rather than involving a salary.\xe2\x80\x9d). Accordingly, we do not believe the\nspecial government employee is an \xe2\x80\x9cOfficer[] of the United States\xe2\x80\x9d for\npurposes of the Appointments Clause. He therefore would not occupy an\n\xe2\x80\x9cOffice of Profit or Trust\xe2\x80\x9d under our Office\xe2\x80\x99s precedents that hold that\n8\n\n\x0cSpecial Government Employee Serving as Paid Consultant to Saudi Company\n\nonly persons considered \xe2\x80\x9cOfficers of the United States\xe2\x80\x9d under the Appointments Clause may hold \xe2\x80\x9cOffice[s] of Profit or Trust\xe2\x80\x9d under the\nEmoluments Clause.\nB.\nWe also believe that the special government employee at issue does not\nhold an \xe2\x80\x9cOffice of Profit or Trust\xe2\x80\x9d for purposes of the Emoluments Clause\nunder the approach that considers a range of factors. As noted above, the\nfactors our Office has considered in assessing the reach of the Emoluments Clause under this approach are directed at ensuring that the \xe2\x80\x9cconcerns about foreign corruption and influence [that underlie the Clause] are\naccounted for.\xe2\x80\x9d ACUS II, 34 Op. O.L.C. at 187; see also Authority of\nForeign Law Enforcement Agents, 12 Op. O.L.C. at 68 (\xe2\x80\x9cTh[e] [C]lause,\nadopted unanimously at the Constitutional Convention of 1787, was\nintended by the Framers to preserve the independence of officers of the\nUnited States from corruption and foreign influence. [It] must be read\nbroadly in order to fulfill that purpose. Accordingly, the Clause applies to\nall persons holding an office of profit or trust under the United States, and\nnot merely to that smaller group of persons who are deemed to be \xe2\x80\x98officers of the United States\xe2\x80\x99 for purposes of Article II, Section 2 of the Constitution.\xe2\x80\x9d). Factors our Office has previously considered include whether\nan individual exercises \xe2\x80\x9cthe type of discretion and authority that inheres\nin an office of profit or trust,\xe2\x80\x9d 4 whether he supervises other federal employees, 5 whether his duties are continuing and permanent, 6 and whether\n\n4 ACUS II, 34 Op. O.L.C. at 189; see also IEP, 20 Op. O.L.C. at 123 (considering\nwhether a committee is \xe2\x80\x9cpurely advisory\xe2\x80\x9d or \xe2\x80\x9cdischarges . . . substantive statutory responsibilities\xe2\x80\x9d in assessing status of its members for purposes of the Emoluments Clause); cf.\nPart-Time Consultant, 10 Op. O.L.C. at 99 (concluding that a part-time consultant for the\nNuclear Regulatory Commission was subject to the Clause in part because the Commission considered renewal of his contract \xe2\x80\x9cessential to the conduct of the agency\xe2\x80\x99s mission\xe2\x80\x9d).\n5 See ACUS II, 34 Op. O.L.C. at 189 (noting that nongovernmental members of ACUS\ndo not \xe2\x80\x9cexercise the type of supervisory power or decisional authority that would potentially be relevant to a conclusion that they are subject to the Emoluments Clause\xe2\x80\x9d); cf. FBI\nAdvisory Board, 31 Op. O.L.C. at 154 (board members who \xe2\x80\x9cexercise no supervisory\nresponsibilities over other persons or employees as a result of their positions\xe2\x80\x9d are not subject to the Clause).\n\n9\n\n\x0c40 Op. O.L.C. 1 (2016)\n\nhe receives an emolument from the federal government. 7 We have also\nlooked to whether an individual has a security clearance or access to\nclassified information, 8 whether he is subject to federal conflict of interest\nstatutes and regulations, 9 and whether he takes an oath of office, 10 although our recent advice indicates that these latter factors are less\nweighty than the former. 11 No single one of these factors has proven\ndeterminative; rather, we have considered them in combination to assess\nwhether a person is subject to the Clause.\nWe believe that the special government employee at issue here does not\nhold an \xe2\x80\x9cOffice of Profit or Trust\xe2\x80\x9d when the relevant factors are considered in their totality. As an initial matter, the special government employSee IEP, 20 Op. O.L.C. at 123 (members of a committee do not hold an \xe2\x80\x9cOffice of\nProfit or Trust\xe2\x80\x9d in part because they \xe2\x80\x9cmeet only occasionally\xe2\x80\x9d); Field Assistant on the\nGeological Survey \xe2\x80\x94Acceptance of an Order from the King of Sweden, 28 Op. Att\xe2\x80\x99y Gen.\n598, 599 (1911) (\xe2\x80\x9cField Assistant\xe2\x80\x9d) (field assistant is outside the scope of the Clause in\npart because his duties do not require \xe2\x80\x9ccontinuous service,\xe2\x80\x9d but rather \xe2\x80\x9c[o]nly occasional\nwork\xe2\x80\x9d).\n7 See ACUS II, 34 Op. O.L.C. at 187 (noting that nongovernmental members of ACUS\n\xe2\x80\x9cserve without compensation\xe2\x80\x9d); IEP, 20 Op. O.L.C. at 123 (\xe2\x80\x9cThe members of the IEP\nAdvisory Committee . . . serve without compensation.\xe2\x80\x9d).\n8 See ACUS II, 34 Op. O.L.C. at 188 (pointing to lack of access to classified information as a relevant factor); IEP, 20 Op. O.L.C. at 123 (same); Part-Time Consultant,\n10 Op. O.L.C. at 99 (pointing to a consultant\xe2\x80\x99s security clearance and potential access\nto sensitive or classified information in concluding that he is subject to the Clause).\n9 See ACUS I, 17 Op. O.L.C. at 117 (nongovernmental members of ACUS are subject\nto the Emoluments Clause in part because they are special government employees\nsubject to federal conflict of interest laws); Part-Time Consultant, 10 Op. O.L.C. at 99\n(a part-time consultant is subject to the Clause in part because he must conform to\nagency regulations regarding conflicts of interest and must \xe2\x80\x9creport . . . any change in his\nprivate employment or financial interests\xe2\x80\x9d).\n10 See IEP, 20 Op. O.L.C. at 123 (pointing to oath of office as a relevant factor); PartTime Consultant, 10 Op. O.L.C. at 99 (same).\n11 See ACUS II, 34 Op. O.L.C. at 188 (fact that nongovernmental members of an advisory board are special government employees subject to federal conflict of interest laws\nis \xe2\x80\x9cfar from determinative\xe2\x80\x9d (citing IEP, 20 Op. O.L.C. at 123; Representative Members,\n21 Op. O.L.C. at 177)); id. at 189 (taking an oath of office is, \xe2\x80\x9cfor purposes of analyzing\npurely advisory bodies, . . . not particularly weighty\xe2\x80\x9d); cf. FBI Advisory Board, 31 Op.\nO.L.C. at 156\xe2\x80\x9360 (members of FBI Director\xe2\x80\x99s Advisory Board, who have access to\nclassified information and are obligated not to disclose it but do not have authority to\noriginate, modify, or declassify classified information, do not hold \xe2\x80\x9cOffice[s] of Profit or\nTrust\xe2\x80\x9d).\n6\n\n10\n\n\x0cSpecial Government Employee Serving as Paid Consultant to Saudi Company\n\nee does not, in our view, exercise \xe2\x80\x9cthe type of discretion and authority\nthat inheres in an office of profit or trust.\xe2\x80\x9d ACUS II, 34 Op. O.L.C. at 189.\nHis role is to assist the Commercial Law Development Program in its\ncollaborations with Middle Eastern countries. Although that role may\nrequire him to offer his expert advice on how to attract international\ninvestment or harmonize proposed legal reforms with cultural and religious norms, it does not authorize him to formulate federal policy or to\nexercise diplomatic authority (i.e., to speak on behalf of or to represent\nthe United States in international negotiations). Nor does it authorize him\nto exercise supervisory authority over other federal employees or to direct\nthe disbursement of federal funds or property. See id. (although members\nof ACUS have authority over certain decisions of the Chairman, \xe2\x80\x9c[i]n\nlight of ACUS\xe2\x80\x99s purely advisory function as well as its governance structure,\xe2\x80\x9d pursuant to which nongovernmental members are likely to constitute a minority, \xe2\x80\x9cwe do not believe its nongovernmental members exercise\nthe type of supervisory power or decisional authority that would potentially be relevant to a conclusion that they are subject to the Emoluments\nClause\xe2\x80\x9d). The special government employee, moreover, has no access to\nclassified information. Commerce Memo at 1.\nThe special government employee also lacks the continuing and permanent duties that we have found to be a common feature of an office of\nprofit or trust under the Emoluments Clause. See, e.g., ACUS II, 34 Op.\nO.L.C. at 187 (nongovernmental members of ACUS are not subject to the\nClause in part because they meet \xe2\x80\x9conly on an occasional basis\xe2\x80\x9d). He\nserves under a one-year contract, with duties performed on an intermittent\nbasis upon assignment by the Commercial Law Development Program;\nhis service, in short, is temporary and requires \xe2\x80\x9c[o]nly occasional work.\xe2\x80\x9d\nField Assistant, 28 Op. Att\xe2\x80\x99y Gen. at 599. 12\nIt is true that the special government employee is compensated for his\nservices, took an oath of office, and files financial disclosure forms\xe2\x80\x94\n12 To be clear, classification as a \xe2\x80\x9cspecial government employee\xe2\x80\x9d \xe2\x80\x9cwithout more . . .\ndoes not exempt [an individual] from the constitutional prohibition in the Emoluments\nClause.\xe2\x80\x9d Part-Time Consultant, 10 Op. O.L.C. at 99. Neither does it necessarily subject\nthe individual to the obligations of the Emoluments Clause. ACUS II, 34 Op. O.L.C. at\n188. In this case, the limited duration of the employee\xe2\x80\x99s position and the absence of\ncontinuous duties are factors that suggest that he does not hold an \xe2\x80\x9cOffice of Profit or\nTrust.\xe2\x80\x9d\n\n11\n\n\x0c40 Op. O.L.C. 1 (2016)\n\nfactors our Office has indicated may be relevant in marking the bounds of\nthe Emoluments Clause. But the presence of those factors here does not,\nin our view, make the employee\xe2\x80\x99s position an office of profit or trust. The\nreceipt of compensation has not proven a dispositive factor, particularly\nwhere, as here, compensation is paid on an hourly or daily basis for services actually performed. See id. (field assistant does not hold an \xe2\x80\x9cOffice\nof Profit or Trust\xe2\x80\x9d where, among other factors, he \xe2\x80\x9cis paid by the day\nwhen actually employed\xe2\x80\x9d and his annual compensation is capped). And\nwhile being entrusted with a position that requires taking an oath of office\nand filing financial disclosure forms may weigh in favor of finding that an\noffice is covered by the Emoluments Clause, those factors are not particularly weighty, see supra note 11, and, in any event, do not alter our conclusion here in light of the limited discretion and authority the employee\nexercises, and the occasional and temporary nature of his duties, see\nACUS II, 34 Op. O.L.C. at 188\xe2\x80\x9389 (nongovernmental members of ACUS\nare not subject to the Emoluments Clause even though they traditionally\nhave taken oaths of office and are special government employees subject\nto federal conflict of interest statutes and regulations).\nIII.\nFor the foregoing reasons, we conclude that the special government\nemployee in question does not hold an \xe2\x80\x9cOffice of Profit or Trust\xe2\x80\x9d within\nthe meaning of the Emoluments Clause. We therefore believe that the\nEmoluments Clause would not bar him from accepting a paid consulting\nposition with KA-CARE, regardless of whether doing so would constitute\nacceptance of an \xe2\x80\x9cEmolument [or] Office . . . of any kind whatever, from\nany King, Prince, or foreign State.\xe2\x80\x9d\nKARL R. THOMPSON\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n12\n\n\x0c'