LLS.DeparnnentofJusdc::;
Ofi`lce of Legal Counsel

 

 

washingmn_ D.C 20530

August 29, 1988

MEMORANDUM FOR JAMES H. THESSIN
ASSISTANT LEGAL ADVISER FOR MANAGEMENT
UNITED STATES-DEPARTMENT OF STATE

Re: Application of the Emoluments Clause to a
Civilian Aide-to the Secretarv of the Armv

This is in response to your request of August 10, 1988, for
our opinion on the applicability of the Emoluments Clause to
William J. Hybl, a Civilian Aide to the Secretary of the Army.
The Emoluments Clause prohibits those who hold offices of ”profit
or trust” under~the United States from accepting gifts, titles
or other presents from foreign States, without the consent of
Congress. As set forth in your letter, the Government of
Luxembourg has offered Mr. Hybl the position of Honorary Consul.

For the reasons discussed below, we conclude that Mr. Hybl
does hold an office of trust for purposes of the Emoluments
Clause, and accordingly he is subject to the Clause's prohibi-
tions. We conclude further that because the position of
Honorary Consul for Luxembourg is clearly an ”Office or Title”
offered by a foreign State, and because Congress has not given
its consent, Mr. Hybl may not accept the Consulship while
continuing to serve as a Civilian Aide.l

 

l The General Counsel, Department of the Army, has opined
that, because Civilian Aides are not employees of the Federal
Government, and do not receive compensation for their services,
”constitutional . . , restrictions on the acceptance by officers
or employees of the United States of titles or offices from a
foreign government” should not apply to Mr. Hybl. Letter from
Susan J. Crawford, General Counsel, Department of the Army, to
Representative Joel Hefley, November 18, 1987, at l. As our
analysis makes clear, however, neither the uncompensated nature
of an individual's services, nor his technical.status as an
employee, determines whether an individual is subject to the
Emoluments Clause.'

(continued...)

 

Analysis'

The Emoluments Clause, Article I, Section 9, clause 8 of the
Constitution, provides:

{N]o Person holding any Office of Profit or Trust
under them [the United States], shall, without the
consent of the Congress, accept of any present,
Emolument, Office, or Title, of any kind whatever, from
any King, Prince, or foreign State.

This clause, adopted unanimously at the Constitutional Convention
of 1787, was intended by the Framers to preserve the independence
.of officers of the United States from corruption and foreign
influence, f

The Emoluments Clause must be read broadly in order to
fulfill that purpose, Accordingly, the Clause applies -» as its
words suggest -- to all persons who hold offices of ”profit or
trust” under the United States, and not merely to that smaller
group of persons who are deemed to be ”officers of the United
States” for purposes of Article II, Section 2 of the Constitu-
tion. E.g., Letter from Charles J. Cooper, Assistant Attorney
General, Office of Legal Counsel, to James_A. Fitzgerald,
Assistant General Counsel, United States Nuclear Regulatory
Commission, June 3, 1986 (hereafter Fitzgerald letter), at 4; 6
op. o.L.c. 156, 157-58 (1982). '

Application of the Emoluments Clause to the facts of the
current case is a fairly straightforward matter. We have
examined Army Regulation 1-15, governing Civilian Aides to the
Secretary of the Army. hides are chosen by the Secretary
according to specified criteria, and are subject to security

 

l(...continued)

The General Counsel has further opined, evidently upon
information supplied by Mr. Hybl, that the position of Honorary
Consul should not create a ”conflict of interest,” or ”otherwise
interfere with Mr. Hybl's responsibilities as a Civilian Aide.”
;Q. In light of our conclusion that Mr. Hybl is prohibited from
accepting the Honorary Consulship by the Emoluments Clause, we
need not address any question of conflict of interest, except to
note that the prohibition contained in the Emoluments Clause is
cast in absolute terms (in the absence of congressional consent)
and that the application of the Clause therefore does not turn
upon the existence of any actual conflict of interest. '

2 3 Farrand, The Records of the Federal Convention of 1787
327 (1966 ea.). .

 

clearances, standards of conduct and disqualifying conditions.
(Paragraphs 4-8, 10.) Aides serve a ”term of office” of two
years, enjoy the ”responsibilities and privileges” of the posi-
tion until formal ”separation action” is taken by the Secretary,
and are variously described as having ”responsibilities” or
”duties.” (Paragraphs 4, 5, and 13.)' Aides are required to
provide ”individual advice” to the Secretary, the Chief of Staff,
and others, and the Secretary and the Chief of Staff ”communicate
directly with civilian aides.” (Paragraphs 4 and 12.) Aides
”work closely with {major Army command] and installation com-
manders, State adjutants general and other Army National Guard
commanders, Army Reserve Commanders,” and many others. Aides
also ”[d]isseminate information about the Army's objectives,
roles, requirements, and major programs to the public,” and
”[p]rovide advice concerning the development of programs and
methods to attain maximum understanding and cooperation between
the civilian community and the Army.” (Paragraph 4.) hides have
access to classified information, and receive a ”security orien-
tation concerning . . . responsibilities in receiving, handling,
and protecting classified information . . . .”r (Paragraphs 9 and
11.) All of these factors together demonstrate that Civilian
Aides are carefully chosen and highly valued for their abilities
and service. ~We think these aspects of the Civilian~Aide posi»
y tion indicate that the United States reposes great trust in the
Aides, and relies upon them to perform various duties that
further the national defense. '

These same attributes -~ the reposing of trust, the neces-
.sity of undivided loyalty to the United States, the importance of
the task performed by those-who hold the-office, personalized
selection and access to classified information -- characterize
the ”office of trust” for purposes of the Emoluments Clause.
E.g., Fitzgerald letter, at p. 5 (among other things, fact that
employee must conform to regulations regarding conduct, and has
access to classified information, indicate that individual holds
an office of profit or trust): 15 Op. A.G. 187, 188 (1877)
(Commissioners appointed by the President to serve on the
,Centennial Commission hold offices of trust within the meaning of
the Emoluments Clause, even though their duties are of a special
and temporary character, because they have been entrusted with
those duties "on account of their personal qualifications and
fitness for the place”). We have no difficulty concluding,
therefore, that the position of Civilian hide to the Secretary of

 

3.We do not mean to suggest, of course, that all of these
factual attributes must be found in order for a position to

qualify as an office of profit or trust for purposes of the
Emoluments Clause.

 

the Army is an ”Office of . . . Trust” under the United States
for purposes of the Emoluments Clause. -

lt is equally clear-that the Honorary Consulship at issue
here is clearly an ”office or title,” which those who hold an
office of profit or trust from the United States may not receive
from a foreign government, absent the consent of Congress. See
also 13 Op. A.G. 537, 538 (1871) (an American minister to one
foreign power could not accept a diplomatic commission to the
same power from another foreign State because such a commission
would create "an official relation between the individual thus
commissioned and the government which in this way accredits him
as its representative,”).

Nor can Congress_be deemed to have consented to Mr. Hybl's
acceptance of the title or office of Honorary Consul. No such`
specific consent has been obtained§; and the generalized
congressional consent to the acceptance of gifts and decorations
from foreign governments contained in 5 U.S.C. 7342 does not, by
its express terms, apply to offices or titles. 7 '

coNcLUsIoN

Accordingly, even though Mr. Hybl is not formally an
”employee” of the United States, and.receives no salary in his
position as a Civilian Aide, the_language of the Emoluments

Clause, the purposes behind the Clause, and prior opinions of_the

 

4 Horeover, as the text of the Emoluments Clause itself
suggests, one can hold an office of trust for purposes of the
Emoluments Cause even if the office entails no compensation. 15
Op. A.G. 187, 188 (1877) (members of Centennial Commission who
receive no compensation may nonetheless hold Foffices of trust”
under the Emoluments Clause). '

5 We note that you have stated that the State Department
also considers the position of Honorary Consul to be an ”Office
or Title” from a foreign State for purposes of the Emoluments
Clause. We note further that Richard Gookin, the State
Department’s Associate Chief of Protccol, has confirmed ”the
importance to the Government of Luxembourg of its honorary
consular officers throughout the United States . . . .”` Letter
from Richard Gookin to Ambassador Philippe of Luxembourg,
February 9, 1988, at l. '

5 Letter`from Richard Gookin to Ambassador Philippe of
Luxembourg, February 9, 1988, at l.

....4._

 

d of this Office compel the conclusion that
f Honorary Consul of

Attorney General an
Civilian Aide.

Mr. Hybl may not accept the position o
Luxembourg while continuing to serve as a

;%§n§§§J§§éinnis-

Deputy Assistant Attorney General
Office of Legal Counsel `

 

