Applicability of 18 U.S.C. § 219 to Retired Foreign Service Officers

Applicability of 18 U.S.C. § 219 to
Retired Foreign Service Officers

A retired foreign service officer is not a public official of the United States subject to 18 U.S.C.
§ 219, which provides criminal penalties for conduct that would usually constitute a violation
of the Emoluments Clause of the Constitution, Article I, § 9, cl. 8.

June 15, 1987

M e m o r a n d u m O p in io n f o r t h e L e g a l A d v is e r ,
D e p a r t m e n t o f St a t e

This responds to your request for our views on the applicability of 18 U.S.C.
§ 219 to retired foreign service officers.1 Section 219 provides criminal penal­
ties for any “public official of the United States” who is required to register
under the Foreign Agents Registration Act of 1938 (FARA) because he acts as
an agent for a foreign principal. Essentially, § 219 provides criminal penalties
for conduct that would usually constitute a violation of the Emoluments Clause
of the Constitution.2 The question is whether a retired foreign service officer
should be considered a “public official of the United States” for purposes of

1 This question w as raised originally in a letter from a retired foreign service officer to the O ffice of
G overnm ent Ethics (OGE). The O G E referred the letter to this O ffice, taking the position that it had no
authority to construe this particular provision o f T itle 18. A lthough we have no specific authority to render
legal opinions to private individuals, the inquiry seem ed to us o f sufficient general interest to the governm ent
to w arrant a response. And, because the statute in question is a crim inal law enforced by this D epartm ent, it
seemed appropriate fo r us to interpret it. In the course o f responding to our request for the view s o f the State
D epartm ent on the issues involved, you requested that we do so
2 The Em olum ents C lause o f the C onstitution prohibits persons holding “an O ffice o f Profit o r Trust" under
the U nited States from accepting any “ Em olument, O ffice, or T itle" from a foreign state, w ithout the consent
o f Congress. U.S. C onst, art. I, § 9, cl. 8. The term “emolument*' has been interpreted to include com pensation
for em ploym ent. See, e.g., 40 Op. A tt’y Gen. 513 (1947). Persons prohibited from being com pensated for
foreign em ploym ent by the Em oluments Clause may be subject to criminal penalties under § 219 if they
accept such em ploym ent, although that section, applying to conduct that would violate the FARA, is both
broader and narrow er than the Em olum ents C lause itse lf It is broader in that the FARA applies to agents for
foreign partnerships, corporations and private persons as well as foreign governm ents, see 22 U.S.C.
§ 611(b), w hereas the Em oluments C lause concerns only em olum ents received, in some cases indirectly,
from foreign governm ents o r officials. Section 219 is narrow er in that it does not crim inalize everything that
would violate the Em olum ent C lause, such as the acceptance o f a “T itle’’ or “O ffice” that w ould not require
registration under the FARA. M oreover, the categories o f persons covered by the constitutional and statutory
prohibitions may not be precisely coextensive, although for practical purposes they are the sam e.

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this statute.3 The State Department is of the view that they should not. For
reasons set forth in the following paragraphs, we agree.
The question of the applicability of § 219 to retired foreign service agents
arises because, historically, such individuals appear to have been considered by
the Department of State to hold an “office of profit or trust” within the
Emoluments Clause. If they do, they would be disabled by this provision of the
Constitution from accepting employment with a foreign government, and at
least arguably subject to the penalties contained in § 219 if such employment
would require them to register under FARA.4
As far as we can determine, no court has ever considered the constitutional
status of retired foreign service officers under the Emoluments Clause, or the
applicability to them of § 219. The Registration Unit in the Criminal Division
of this Department, which has responsibility for interpreting § 219, indicates
that it is a matter of first impression. As you point out in your submission, the
State Department’s historical position on the applicability of the Emoluments
Clause appears to have been derived from certain cases and administrative
rulings dealing with the status of retired military officers as “officers of the
United States.”5 It seems to have been assumed that the factual circumstances
3 As o rig in ally enacted in 1966, § 2 1 9 applied to “an officer or em ployee o f the U nited States in the
executive, leg islativ e, o r ju d icial branch o f the G overnm ent.” See Pub. L. No. 89-486, § 8, 80 Stat. 244, 249.
In 1984, § 219 w as am ended by the C om prehensive C rim e Control A ct to apply to “public officials o f the
U nited S tates.” Pub. L. No. 98-473, § 1 1 1 6 ,9 8 Stat. 1837, 2149. “Public official” is defined in the amended
§ 219 to include M em bers o f Congress a n d D elegates from the D istrict o f C olum bia, as well as “any officer or
em ployee o r person acting on behalf o f th e United States . . . in any official function.” W ithout more, this
language on its face w ould not seem n a tu rally to encom pass an o fficer who is retired and thus no longer
“acting on b e h alf o f the U nited S tates. . . in any official function.” M oreover, there is no reason to believe the
1984 change in the d escrip tio n of the c lass o f persons covered by § 219 was intended to effect any change in
the statu te's coverage o f retired foreign service officers. There is no docum ented legislative history that
w ould illum inate the purpose o f the ch an g e, which was added to the C rim e C ontrol bill in a jo in t House-
S enate m ark-up session after the bill had b een reported out o f com m ittee in both H ouses. The am endm ent to
§ 2 1 9 w as not discussed on the floor. A ccording to C rim inal D ivision attorneys who were m onitoring the
C rim e C ontrol bill, the sole purpose of th e am endm ent to § 219 was to bring Members o f C ongress within the
sectio n ’s prohibition.
4 O ur files indicate that in 1961 the S ta te D epartm ent attem pted to secure the passage of legislation to
authorize retired foreign service officers to accept em ploym ent w ith foreign governm ents, subject to the
approval o f the Secretary o f State. The S ta te D epartm ent d ra ft bill w as explicitly prem ised on the assum ption
that the Em olum ents C lause would otherw ise preclude such em ploym ent. See M emorandum to Byron R.
W hite, D eputy A ttorney G eneral from N icholas DeB. K atzenbach, A ssistant A ttorney General, O ffice o f
Legal C ounsel (N ov. 3, 1961). A subsequent legislative enactm ent gave C ongress' consent to the employ­
m ent o f certain retired o fficers of the U n ite d States by foreign governm ents, but did not address the situation
o f retired foreign service officers. See P ub. L. No. 9 5 -1 0 5 , § 509(a)-(c), 91 Stat. 844, 859 (1977) (codified at
37 U .S.C . § 9 08) (consenting to the em ploym ent by fo reign governm ents o f retired m ilitary officers, retired
Public H ealth Service o fficers, and m em bers o f the arm ed forces reserves). It may be, as you point out, that
C o n g re ss' failu re in 1977 to include retired foreign service officers am ong those exem pted from § 219 can be
attrib u ted to th e fact th at by that time n e ith e r the State D epartm ent n o r C ongress believed that they would
o therw ise be subject to its provision. In lig h t o f the State D epartm ent’s earlier contrary belief, how ever, and
the potential crim inal p en alties involved, it seems im portant to settle the m atter clearly one way o r the other.
5 See, e.g.. United States v. Tyler, 105 U .S . 244 (1881) (retired m ilitary officer still a member o f the armed
forces fo r purposes o f a statutory pay increase); Morgenthau v. Barrett, 108 F.2d 481 (D.C. Cir. 1939), cert,
denied, 309 U .S. 672 (1940) (retired m ilitary officers are officers o f the United States and subject to all
conflict o f interest law s from which they have not been exem pted). The C om ptroller General has taken the
position that retired m ilitary officers are prohibited by the Em olum ents Clause from holding em ploym ent
Continued

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of retirement from the foreign service were sufficiently close to those prevail­
ing in the military to warrant according retirees from both services similar
treatment under § 219. For the reasons set forth in your submission, we agree
that this assumption should be reexamined.
Under the laws establishing the terms and conditions of retirement status for
foreign service officers, their situation differs in a number of important re­
spects from that of retired military officers. Most significantly, retired military
officers are subject to recall to active duty without their consent, and this
obligation may be enforced by court martial under the Uniform Code of
Military Justice. See 10 U.S.C. §§ 688, 802.6 By contrast, according to your
submission, the statutory provision authorizing recall of a retired foreign
service officer, 22 U.S.C. § 3948, has never been understood to allow
nonconsensual recall. There is in any event no provision for enforcing it.
While the difference in the recall status of the two classes of retirees seems to
us sufficient in and of itself to justify according them different treatment under
the Emoluments Clause and § 219, there is other statutory evidence of Con­
gress’ expectation that retired foreign service officers would not be regarded as
on the same footing as retired military officers as far as their continuing
relationship with the government was concerned. For example, unlike retired
military officers, retired foreign service officers are not listed as members of
the service in the pertinent provisions of the United States Code. Compare 10
U.S.C. § 3075 with 22 U.S.C. § 3903. Also, retired foreign service officers
receive a retirement “annuity,” while retired military officers receive “retired
pay.” See 10 U.S.C. § 1401.
Accordingly, we agree with your conclusion that a retired foreign service
officer should not be regarded as holding “an Office of Profit or Trust” within
the Emoluments Clause, nor, consequently, as a “public official of the United
States” for purposes of 18 U.S.C. § 219.

M ic h a e l A . C a r v in
Deputy Assistant Attorney General
Office o f Legal Counsel

5 ( . . . continued)
with a foreign governm ent because they are subject to being recalled to active service. See, e.g., S3 Com p.
Gen. 753 (1974). The legislative history o f § 2 1 9 indicates an expectation that the provision m ight be
construed to apply to retired m ilitary officers. See H.R. Rep. No. 1470, 89th Cong., 2d Sess. 18-19 (1966)
(reproducing letter from the D epartm ent o f the Navy requesting the addition of a provision specifically
exem pting retired m ilitary officers from § 219).
6 It is this aspect o f the status o f retired m ilitary officers that has led courts to conclude that they should be
considered officers o f the U nited States even in retirem ent. See United States v. Tyler, 105 U .S. at 246; supra
uote 5.

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