                                                                            April 11, 1977

78-77 MEMORANDUM OPINION FOR THE COUNSEL
      TO THE PRESIDENT
      Assumption by People’s Republic of China of Expenses
      of U.S. Delegation—Constitution (Art. I, § 9, cl. 8)

   You have asked for our opinion as to whether there is any legal obstacle to
the acceptance, by members of an official delegation who will be visiting the
People’s Republic of China, of lodging, meals, and transportation at the
expense of the Government of that country. The delegation will include
Members of Congress and the President’s son.1
   Article I, Section 9, Clause 8 of the Constitution provides:
         No Title of Nobility shall be granted by the United States: And no
      Person holding any Office of Profit or Trust under them, shall,
      without the Consent of the Congress, accept of any present, Emolu­
      ment, Office or Title, of any kind whatever, from any King, Prince or
      foreign State.
The purpose of the prohibition against the receipt of gifts is to prevent foreign
influence over officers of the United States. 2 Farrand, The Records of the
Federal Convention o f 1787 (1937), at 389; 24 Op. A.G. 116 (1902).
   Congress has enacted legislation to implement the constitutional provision.
See 5 U.S.C. § 7342. Section 7342 allows the acceptance of gifts from foreign
governments by Federal officers and employees in two limited circumstances:
(1) where the gift is of minimal value2 and tendered or received as a souvenir or
mark of courtesy; and (2) where the gift is of more than minimal value but its
refusal would be likely to cause offense or embarrassment or otherwise
adversely affect the foreign relations of the United States. In the former
situation the recipient may retain the gift, but in the latter it is deemed to have
been accepted on behalf of the United States and must be deposited with the

  'During a debate in the House on April 6, 1977, Congressman Brademas stated that the official
expenses of Members of Congress would be paid from counterpart funds of the United States. 123
Cong. Rec. H. 3145. Representative Brademas’ office confirmed this by telephone. To the extent
United States funds are used, there would appear to be no legal problems.
  2“ Minimal value” is defined in applicable regulations as less than $50. 22 CFR 3.3(e).
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  State Department’s Chief of Protocol for use and disposal as property of the
  United States under implementing State Department regulations, 22 CFR, Part
  3. Although the statutory provision does not expressly so state, it is implicit that
  any gift not covered by either of these two consent provisions may not be
  accepted.
     The limitations on acceptance of gifts from foreign governments apply to
  Members of Congress and their staffs who will make the trip to China, as well
  as Executive branch personnel traveling with the party. See 5 U.S.C. §§
 7342(a)(1)(A) and (E); 22 CFR 3.3(a). The statute also applies to a member of
 the family and household of any of the officials covered by the statute. 5
 U.S.C. § 7342(a)(1)(F). Since the statute applies to the President, 5 U.S.C. §
 7342(a)(1)(D), the President’s son and his family are also subject to the
 restrictions on the receipt of gifts from foreign governments.
    However, we do not believe that the constitutional and statutory provisions
just discussed are to be read to prohibit the contemplated arrangements for the
 Chinese Government to assume the expenses of the members of the delegation.
 We take this position despite the breadth of the constitutional language that “ no
 Person . . . shall . . . accept of any present . . . of any kind whatever . . . .”
 Although the term “ Present” might appear to connote a tangible item, we
 believe that a foreign government’s furnishing of travel and subsistence to an
 individual officer of the United States would be prohibited by the Constitution
 as well.3 Similarly, it is our opinion that travel and subsistence furnished to an
 individual by a foreign government would constitute a “ gift” under the statute.
 See 5 U.S.C. § 7342(a)(3). Nevertheless, in the present case we do not believe
 that the “ present” or “ gift” of travel, lodging, and food will be “ accepted”
 by individual members of the delegation within the contemplation of the
Constitution or the statute.
    The trip is being made by an official delegation, not by individual Members
of Congress or Executive branch employees travelling on their own behalf.
Food, lodging, and travel will be accepted by individuals as members of the
official delegation. In this sense, the hospitality is extended as a diplomatic
courtesy to the United States Government. Moreover, if the Chinese Govern­
ment did not assume these expenses, they presumably would be paid for out of
funds appropriated to the Congress and to the Executive branch. Thus, it
appears that the real beneficiary, in purely monetary terms, of any gift or
present involved is the United States Government, not individual members of
the delegation.
    This is an important distinction, because the constitutional prohibition has
been construed to prohibit only gifts made to individual officials, not gifts made
to the United States Government. For example, the cited opinion of the
Attorney General (24 Op. A.G. 116) indicated that gifts of portraits to be
presented to the Navy Department and the Naval and Military Academies could

  3The additional phrase “ of any kind whatever” indicates that the clause should be given a broad
construction.
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 be accepted on the ground that they were made to the Government. The statute
  implementing the constitutional prohibition suggests this same conclusion in
 providing that gifts of more than minimal value given to an individual
 employee are deemed to have been accepted on behalf of the United States. See
 5 U.S.C. § 7342(c). We see no reason why the distinction between presents
 given to individuals and presents given to the United States should not apply to
 official diplomatic travel, such as that involved in the present case.
    In this connection, we have been advised by the State Department’s Assistant
 Legal Adviser for Management (which has responsibility for advising the Chief
 of Protocol on questions arising under the foreign gifts statute) that 5 U.S.C.
 § 7342 has not been construed to prohibit a foreign government from paying
 expenses of Government employees traveling to another country if the agency
 approves the arrangement in advance for an official agency mission. Presum­
 ably this same rationale would apply to trips by Members of Congress where
 there has been an appropriate determination that the trip is official.
    We were also informed that the Comptroller General advised Speaker Albert
 in an unpublished letter that members of a previous congressional delegation to
 China could be furnished the same general type of services as those at issue
 here on the theory that the real benefit was to the United States Government
rather than to individuals.4 The Comptroller General’s letter reportedly placed
particular emphasis on the diplomatic considerations involved.5
    The distinction drawn in the past between travel and subsistence furnished to
individuals and that in effect furnished to the United States Government is, in
our view, a reasonable construction of the constitutional and statutory provi­
sions. In situations in which the individual official’s own agency would pay
expenses if the foreign government did not, the official in theory receives no
personal benefit from the foreign government. The purpose of preventing
foreign influence over officials of the United States that may result from receipt
of personal benefits is therefore not directly served by prohibiting the
acceptance of the foreign government’s hospitality; Per diem payments should
of course be reduced or eliminated in such a case to the extent necessary to
offset any benefits furnished by the foreign government.
    We recognize that a foreign government’s invitation for a Member of
Congress or other officer or employee of the Federal Government to make what
is termed an “ official” visit at the other country’s expense could in itself carry



   4During the House floor debate regarding the present trip. Representative Rhodes stated that
when he accompanied Speaker Albert on a trip to China at least some of the expenses were bome by
the Chinese Government. 123 Cong. Rec. H. 3145 (daily ed., April 6, 1977). This was apparently
the same trip.
   ’Representative Brademas mentioned the Comptroller General’s ruling on the House floor on
April 6, but stated that the ruling was “ the law was not violated by reciprocal expense
arrangements"— presumably meaning mutual agreements under which the host country pays the
expenses of persons visiting from the other country. There may be such an arrangement with China,
but we do not believe that the reciprocity element is necessary under the theory set forth herein.
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 the seeds for the type of foreign influence the constitutional and statutory
 provisions were designed to prevent.6 For this reason, it would be consistent
 with the spirit of the constitutional and statutory restrictions for the United
 States Government to insist on paying the expenses of official travel abroad
 whenever possible, even where payment by a foreign government could
 legitimately be characterized as a gift to the United States rather than to the
 individuals involved. But where unique diplomatic concerns make such
 insistence inadvisable, as apparently is true in the present case, we see no
 objection to acceptance of the foreign government’s hospitality.
                                                                 M. H a r m o n
                                                              John
                                                   Acting Assistant Attorney General
                                                                 Office of Legal Counsel




   6It is no doubt for this reason that the Department of State has apparently insisted, at least insofar
as its own employees are concerned, that any such arrangement have prior approval. In this
connection, Representative Rhodes pointed out on the House floor that the House passed a
resolution in 1975 permitting the 1975 trip to be at the expense of the Chinese Government. 123
Cong. Rec. H. 3145, supra. We are not aware of any similar resolution in the present case.
However, the means by which travel by Members of Congress is approved or deemed official is an
internal concern of the House. Presumably the President’s designation of his son as a representative
on the trip under circumstances in which it is apparent that the Chinese Government will pay
expenses furnishes analogous official approval.
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