Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission

Application of Emoluments Clause to Part-Time
Consultant for the Nuclear Regulatory Commission

A part-tim e consultant for the N uclear Regulatory Com mission occupied a position of profit or
trust under the United States such that he could not, consistent with the Emoluments Clause o f
the C onstitution, accept employment with a private domestic corporation to perform work on
a contract with a foreign government.

June 3, 1986

M em o ran d um O p in io n f o r t h e G eneral C o un sel,
N uclear R e g u l a t o r y C o m m is s io n

This responds to your request that this Office provide a written opinion
giving the legal basis for our prior oral advice that Mr. A, a part-time staff
consultant to the Nuclear Regulatory Commission (NRC), may not accept
employment with a private domestic corporation to perform work on a contract
with the government of Taiwan, consistent with the Emoluments Clause of the
Constitution.1
At the time that you originally requested our advice on this matter, you
informed us that the Taiwanese government must approve Mr. A’s participa­
tion on this contract and that Mr. A would be paid by the corporation out of
funds it receives from the contract. As you recognized, under prior opinions of
this Office such an employment arrangement would appear to be proscribed,
unless Mr. A does not hold an “office of profit or trust” within the meaning of
the Emoluments Clause.2 See “Application of the Emoluments Clause of the
Constitution and the Foreign Gifts and Decorations Act,” 6 Op. O.L.C. 156
(1982).
1T he Em olum ents C lause provides:
N o T itle o f N obility shall be g ran ted by the U nited States: And no Person holding any O ffice of
Profit o r T rust under them, shall, w ithout the consent o f the C ongress, accept o f any present,
Em olum ent, O ffice o r Title, o f an y kind w hatever, from any K ing, Prince, or foreign State.
U.S. C onst, art. I, § 9, cl. 8.
2 It is w ell established that com pensation for services perform ed for a foreign governm ent constitutes an
“em olum ent” fo r purposes o f Article I, § 9, cl 8. See 40 Op. A tt’y G en. 513 (1947); 44 Comp Gen. 130
(1964).

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 In March 1985, we advised your office orally that this was a difficult
question of constitutional analysis and that we would be unable to respond fully
in writing in time for Mr. A to make a decision with regard to the proposed
employment. We also indicated our preliminary conclusion that Mr. A did hold
an “office of profit or trust” within the meaning of the Emoluments Clause,
even though he worked for the NRC on a part-time basis only. We therefore
suggested that he decline the Taiwanese government’s offer of employment.
Based upon our recent thorough review of the history and purpose of this
constitutional provision, we conclude that, in light of the nature of Mr. A’s
employment with the United States government, Mr. A holds an “office of
profit or trust” within the meaning of that provision and that, therefore, he
could not have accepted the proposed employment without the consent of
Congress.3

I. History and Purpose of the Emoluments Clause

The Emoluments Clause, adopted unanimously at the Constitutional conven­
tion of 1787, was intended by the Framers to preserve the independence of
foreign ministers and other officers of the United States from corruption and
foreign influence. 3 Farrand, The Records o f the Federal Convention o f 1787
327; see also 2 Farrand, supra, at 389. As Governor Randolph explained during
the ratification debate in the Virginia convention:

[This] restriction restrains any persons in office from accepting
of any present or emolument, title or office, from any foreign
prince or state. This restriction is provided to prevent corrup­
tion. All men have a natural inherent right of receiving emolu­
ments from any one, unless they be restrained by the regulations
of the community. An accident which actually happened, oper­
ated in producing the restriction. A box was presented to our
ambassador by the king of our allies. [4] It was thought proper, in
order to exclude corruption and foreign influence, to prohibit
any one in office from receiving or holding emoluments from
foreign states. I believe, that if at that moment, when we were in
harmony with the King of France, we had supposed he was
corrupting our ambassador, it might have disturbed that confi-

3 This opinion addresses only the constitutional issue under Article I, § 9, cl. 8. It does not purport to deal
w ith any other statutory o r regulatory restrictions that Mr. A ’s proposed em ploym ent may have im plicated.
We note, how ever, that you have expressed the view that the proposed em ploym ent w ould not have
contravened N R C 's conflict o f interest regulations.
4 “Dr. [B enjam in] Franklin is the person alluded to by Randolph. In the w inter o f 1756, in Philadelphia,
under the ro o f o f a venerable granddaughter o f Dr. Franklin, I saw the beautiful portrait of Louis XVI, snuff­
box size, presented by that king to the doctor. As the portrait is exactly such as is contained in the snuff-boxes
presented by crow ned heads, one o f which I have seen, it is probable that this portrait o f Louis was originally
attached to the box in question, which has in the lapse o f years been lost or given away by Dr. Franklin ” H.B.
G ngsby, History o f the Virginia Federal Convention o f 1788 (V irginia Historical Society C ollections, Vols.
9-1 0 ) 264.

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 dence, and diminished that mutual friendship, which contrib­
uted to carry us through the war.
3 Farrand, supra, at 327. Although no court has yet construed the Emoluments
Clause, its expansive language and underlying purpose, as explained by Gover­
nor Randolph, strongly suggest that it be given broad scope. Consistent with a
broad interpretation, past Attorneys General have stated that the Clause is
“directed against every kind of influence by foreign governments upon officers
of the United States,” 24 Op. Att’y Gen. 116, 117 (1902), in the absence of
consent by Congress. 40 Op. Att’y Gen. 513 (1947). See 5 U.S.C. § 7342.
Prior opinions of this Office have assumed without discussion that the
persons covered by the Emoluments Clause were “officers of the United
States” in the sense used in the Appointments Clause, U.S. Const, art. II, § 2,
cl. 2.5 Nevertheless, in 1982, we did advise that a person may hold an “office of
profit or trust” under the Emoluments Clause without necessarily being an
“officer of the United States” for purposes of the Appointments Clause. At that
time, we explained that the language and the purposes of the two provisions are
significantly different. The Appointments Clause, which is rooted in separation
of powers principles, had been construed to require that “any appointee exer­
cising significant authority pursuant to the laws of the United States” is an
“officer of the United States” who must be appointed in the manner prescribed
by Article II. Buckley v. Valeo, 424 U.S. 1, 124—37 (1976). Employees are
“lesser functionaries” subordinate to officers. Id. By contrast, the Emoluments
Clause is a prophylactic provision, and hence, was intended to apply not merely
to those appointees exercising “significant authority” but to “lesser functionar­
ies” as well. Thus, although the possibility of corruption and foreign influence
of foreign ministers apparently was of particular concern to the Framers, they
expressly chose not to limit the prohibition on accepting emoluments from
foreign governments to foreign ministers. They recognized that such a prohibi­
tion was also necessary for other officials and, accordingly, drafted the Clause
to require undivided loyalty from all persons holding offices of profit or trust
under the United States.6
We believe that the relevant inquiry, therefore, is not whether Mr. A should
be considered an “officer o f the United States” in the Appointments Clause
sense. Rather, under the Emoluments Clause, the inquiry is whether Mr. A’s
part-time position at the NRC could be characterized as one of profit or trust
under the United States — a position requiring undivided loyalty to the United
States government.
5 In prio r m em oranda, it was unnecessary fo r this O ffice directly to address the issue whether the
E m olum ents C lause applies to em ployees o r “lesser functionaries,” as well as officers.
6 W e also indicated in 1982, as su p p o rt for this proposition, that in enacting the Foreign Gifts and
D ecorations A ct o f 1966, 5 U.S.C. § 7 3 4 2 , C ongress assum ed w ithout discussion that the Em oluments C lause
requires congressional consent before a n y governm ent em ployee m ay accept a gift from a foreign govern­
m ent. See 6 O p. O .L .C . at 158. See also S. Rep. No. 1160, 89th C ong., 2d Sess. (1966); H.R. Rep. No. 2052,
89th C ong., 2d Sess. (1966). The Foreign G ifts and D ecorations Act was extended in 1977 to apply to experts
an co n su ltan ts h ired by the government under 5 U .S.C. § 3109. See 5 U.S.C. § 7342(a); S. Rep. No. 2 9 4 ,95th
C ong., 1st Sess. (1977).

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 II. Mr. A’s Position

Although this Office expressed the view in 1982 that the Emoluments Clause
applies to all government employees, see 6 Op. O.L.C. at 158, the clause need
not be read so broadly to resolve the matter at hand. The information that you
have provided concerning the nature of Mr. A’s employment strongly suggests
that Mr. A holds a position of trust within the meaning of the Emoluments
Clause.
We understand that the NRC selected Mr. A on the basis of his personal
qualifications and his particular expertise.7 The NRC considered the renewal of
Mr. A’s appointment “essential to the conduct of the agency’s mission.” His
assignments may involve high priority, quick turn-around issues, and the NRC
furnishes him with various materials and documentation. Mr. A’s position
requires a security clearance, see 42 U.S.C. § 2165, and he is required to and
has taken an oath of office. You have supplied us with a copy of the NRC’s
“Employment Conditions for Consultants and Advisers,” which provides that
Mr. A must conform to NRC policy and regulations regarding employee
conduct, conflict of interest, non-disclosure of confidential information, and
political activity. Mr. A is also required to report to the NRC any change in his
private employment or financial interests. Finally, you note that he is “on call
to serve the agency.” All of these factors together indicate that Mr. A is highly
valued for his abilities and that, in the course of his employment, he may
develop or have access to sensitive and important, perhaps classified, informa­
tion. Even without knowing more specifically the duties of his employment,
these factors are a sufficient indication that the United States government has
placed great trust in Mr. A and requires and expects his undivided loyalty.
Therefore, we believe the Emoluments Clause applies to him.
Finally, we recognize that for purposes of the federal conflict-of-interest
laws only, Mr. A is classified as a “special government employee.” See 18
U.S.C. § 202. This classification, without more, however, does not exempt Mr.
A from the constitutional prohibition in the Emoluments Clause. The legisla­
tive history of the conflict-of-interest laws reveals that Congress intended to
create a category of special government employees for whom the restraints
upon regular government employees would be relaxed. This category would
permit the government to employ part-time or intermittent consultants with less
difficulty. See H.R. Rep. No. 748,87th Cong., 1st Sess. 4-5 (1961); S. Rep. No.
2213, 87th Cong., 2d Sess. 16 (1962) (individual views of Sen. Carroll).
Nonetheless, special government employees are covered by broad prophylactic
statutes which, like the Emoluments Clause, are aimed at preventing corruption
and extra-government influence. For example, special government employees
are included within the coverage of 18 U.S.C. § 207 (governing post-employ­

1 See 15 Op. A tt’y Gen. 187, 188 (1877) (C om m issioners appointed by the President for the C entennial
Exhibition hold offices o f “trust” within the meaning o f the Em oluments Clause, even though their duties are
o f a special and temporary character, because they have been entrusted with those duties “on account o f their
personal qualifications and fitness for the place.”).

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ment activities) and 18 U.S.C. § 208 (governing acts affecting a personal
financial interest), as well as 18 U.S.C. §§ 203 and 205 in certain cases. The
conflict-of-interest laws do not address whether a special government em­
ployee may accept simultaneous employment with a foreign government. We
do not read 18 U.S.C. § 202 as an implied expression of congressional consent
under the Emoluments Clause to such employment, particularly when, pursu­
ant to that Clause, Congress has expressly consented to the acceptance of gifts
of minimal value from foreign governments by all employees, including ex­
perts and consultants. See 5 U.S.C. § 7342.
In our view, the policy behind the Emoluments Clause, requiring the undi­
vided loyalty of individuals occupying positions of trust under our government,
has as much force with respect to part-time employees as it does with respect to
full-time employees. Although we do not doubt that Mr. A is worthy of the trust
placed in him by the NRC, we believe that his proposed employment with a
domestic corporation on a contact with a foreign government is within the
proscription of the Emoluments Clause.

Conclusion

For the foregoing reasons, we conclude that the Emoluments Clause of the
Constitution prohibits Mr. A from accepting employment under a contract with
a foreign government, absent express congressional consent.

C h a r l e s J. C o o p e r
Assistant Attorney General
Office o f Legal Counsel

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