                          Applicability of the Emoluments Clause to
                            Non-Government Members of ACUS


T h e E m o lu m e n ts C la u se o f th e C o n stitu tio n p ro h ib its n o n -g o v e rn m e n t m e m b e rs o f the A d m in istra tiv e
     C o n fe re n c e o f th e U n ite d S ta te s from a c c e p tin g , a b se n t C o n g re s s ’s c o n se n t, a d is trib u tio n from
     th e ir p a rtn e rs h ip s th a t in c lu d e s som e p ro p o rtio n a te sh are o f th e re v e n u e s g e n e ra te d fro m the p a rt­
     n e rs h ip ’s fo re ig n g o v e rn m e n t clien ts


N o n -g o v e rn m e n t m e m b e rs o f A C U S are a ls o g e n e ra lly fo rb id d e n , a b se n t C o n g re s s ’s c o n se n t, from
     a c c e p tin g p a y m e n ts fro m c o m m e rc ial e n titie s o w n e d o r c o n tro lle d by fo re ig n g o v e rn m e n ts.


                                                                                                                       O c to b e r 2 8 , 1993



                                 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
                               A d m in is t r a t iv e C o n f e r e n c e o f t h e U n it e d S t a t e s


   This memorandum responds to your request of July 30, 1993, which sought
clarification of a portion of our April 29, 1991, letter to the Deputy Counsel to the
President.1 Specifically, you raise two questions concerning the advice we gave on
that occasion concerning the scope and application of the Emoluments Clause, U.S.
Const, art. I, § 9, cl. 8. After noting that a significant number of the 101 members
of the Administrative Conference (the “Conference” or “ACUS”) are lawyers in
private practice, professors of law, or other experts in administrative law, you ask
whether the Emoluments Clause prevents service on the Conference by a private
individual who receives a partnership distribution from his or her firm that may
include income received by the firm from a foreign government solely because of
the pooling of partnership revenues. Further, you ask whether the Clause prevents
service on the Conference by a private individual who receives payment from gov­
ernment-owned or controlled instrumentalities that do not engage in traditional
functions — including, but not limited to, foreign public universities.

                                                                        I.

   Congress established the Conference “to provide suitable arrangements through,
which Federal agencies, assisted by outside experts, may cooperatively study mu­
tual problems, exchange information, and develop recommendations for action by
proper authorities to the end that private rights may be fully protected and regula-


    1      Y o u r req u est is set forth in the L etter for D aniel K o ffsky, Esq., A cting A ssistant A ttorney G eneral,
O ffice o f Legal C o u n sel, from Gary J E d les, G eneral C o u n sel, A dm inistrative C onference o f the U nited
States (Ju ly 30, 1993) (“ A C U S Letter”). T h e opinion to w hich your letter refers is A p p lica b ility o f 18 U .S.C
§ 2 1 9 to M em b ers o j F ed era l A dvisory C o m m ittees, 15 Op. O .L .C . 65 (1991) (“ the A pril 1991 Opinion'*)

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         A pplicability o f the Em olum ents Clause to N on-G overnm ent M em bers o f A C U S


tory activities and other Federal responsibilities may be carried out expeditiously in
the public interest.” 5 U.S.C. § 591; see also Marshall J. Breger, The Administra­
tive Conference o f the United States: A Quarter Century Perspective, 53 U. Pitt.
L. Rev. 813, 814-19 (1992) (“Breger”) (discussing origins and purposes of
ACUS). “The bulk of the Conference’s work has been its research function and it
is here that it has performed its most important role as a ventilator of new ideas in
administrative procedure.” Id. at 829. The Conference must transmit an annual
report to the President and Congress and such interim reports as the Chairman con­
siders desirable. See 5 U.S.C. § 595(c). In addition, “[o]n a number of occasions,
Congress has specifically mandated that the Conference undertake particular ac­
tivities.” Breger at 835.
    The Conference consists of not more than 101 nor fewer than 75 members, in­
cluding a Chairman appointed by the President with the advice and consent of the
Senate, the chairman (or designee) of each independent regulatory board or com­
mission, the head (or designee) of each executive department or other administra­
tive agency which is designated by the President, certain other governmental
members, certain Presidential appointees, and “not more than 40 other members
appointed by the Chairman.” 5 U.S.C. § 593. The Chairman’s appointees “may at
no time be less than one-third nor more than two-fifths of the total number of
members.” Id. § 593(b)(6). The Chairman is to select appointees “in a manner
which will provide broad representation of the views of private citizens and utilize
diverse experience. The members shall be members of the practicing bar, scholars
in the field of administrative law or government, or others specially informed by
knowledge and experience with respect to Federal administrative procedure.” Id.
    Apart from the Chairman, the members of the Conference are not entitled to
payment for their services. 5 U.S.C. § 593(c). Non-government members of the
Conference may be deemed to be special government employees within the mean­
ing of 18 U.S.C. § 202 and subject to the provisions of 18 U.S.C. §§ 201-224. See
 1 C.F.R. § 302.5(a) (1993).
    The membership of the Conference meeting in plenary session constitutes the
Assembly. 5 U.S.C. § 595(a). The Assembly has various powers, including that of
“adopting] such recommendations as it considers appropriate for improving ad­
ministrative procedure.” Id. § 595(a)(1). “Conference recommendations and
statements are published in the Federal Register and then codified in the Code of
Federal Regulations.” Breger at 827-28. “Since its establishment, the Confer­
ence’s recommendations have had a significant effect on the workings of the fed­
eral government.” Id. at 831.
    The Conference includes a Council composed of the Chairman and ten other
members appointed by the President, “of whom not more than one-half shall be
employees of Federal regulatory agencies or Executive departments.” 5 U.S.C. §
595(b). The Council may exercise various powers, including calling meetings of
the Conference, proposing by-laws and regulations, making recommendations to

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                                    O p in io n s o f the O ffice o f Legal C ounsel


the Conference on subjects germane to its purpose, and receiving and considering
reports of Conference committees2 and distributing such reports to Conference
members with the Council’s own views and recommendations. Id.

                                                          II.

    The Emoluments Clause, U.S. Const. Art. I, § 9, cl. 8, 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,
          Emolument, Office, or Title, o f any kind whatever, from any King,
          Prince, or foreign State.

  The Emoluments Clause was adopted unanimously at the Constitutional Con­
vention, and was intended to protect foreign ministers and other officers of the
United States from undue influence and corruption by foreign governments. James
Madison’s notes on the Convention for August 23, 1787, report:

          Mr[.] Pinkney urged the necessity of preserving foreign Ministers &
          other officers of the U.S. independent of external influence and
          moved to insert — after Art[.] VII sect[.] 7. the clause following —
          “No person holding any office of profit or trust under the U.S. shall
          without the consent of the Legislature, accept of any present,
          emolument, office or title o f any kind whatever, from any King,
          Prince or foreign State[”] which passed nem: contrad.

2 The Records o f the Federal Convention o f 1787, at 389 (Max Farrand ed., rev.
ed. 1966 reprint); see also 3 id. at 327 (remarks of Governor Randolph); President
R eagan’s Ability to Receive Retirement Benefits from the State o f California, 5 Op.
O.L.C. 187, 188 (1981) (discussing history of ratification of Clause).

                                                          A.

   The ACUS Letter represents that, typically, half of the Council members come
from outside the Federal government, as do somewhat less than half (i.e., approxi­
mately forty) of the remaining Conference members. It points out that these pri­
vate members “are typically lawyers in private practice, law professors, and other

    2       U n d er its by -law s, the C onference has six standing com m ittees, adjudication, adm inistration, govern­
m ental p rocesses, ju d ic ia l review , regulation and rulem aking. See I C .F .R § 302 3. In addition, w ith the
approval o f the C ouncil the C hairm an m ay estab lish special ad hoc com m ittees and assign special projects to
them . Id. The co m m ittees, w hich include b o th governm ent and non-governm ent m em bers, are “vital to the
C o n fe re n c e ’s research and rev iew process.” B re g er at 826.

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            A p plicability oj the Em olum ents Clause to N on-G overnm ent M em bers o f A C U S


experts in administrative law and government.” ACUS Letter at 1. Some of the
Conference members are partners in law firms that include foreign governments
among their clients. Although we are informed that these Conference members do
not personally represent foreign governmental clients and have no dealings with
them, “their partnership arrangements provide that client revenues are pooled in
some fashion so that the member receives a partnership distribution from the firm
that includes some proportionate share of revenues generated by those partners
who have the foreign government among their clients.” Id. at 2. ACUS asks
whether such members are barred from Conference service by the Emoluments
Clause.
   As a threshold matter, ACUS does not dispute that Conference members from
the private sector (who are unpaid for their services to the Conference) occupy an
“Office of . . . Trust” within the meaning of the Emoluments Clause. We believe
that Conference membership is such an office. To begin with, the Conference is a
Federal agency established by statute. See 5 U.S.C. § 593. By virtue of their posi­
tions within that agency, Conference members are necessarily brought within the
Clause. Although the Conference is an advisory committee as well as an agency,
see ACUS Letter at 1, the April 1991 opinion stated that “Federal advisory com­
mittee members hold offices of profit or trust within the meaning of the Emolu­
ments Clause,” 15 Op. O.L.C. at 68, and we do not understand ACUS to be
contesting that view. Moreover, the Conference’s advice and recommendations
have had (and were intended to have) a significant effect on the Government’s ad­
ministrative processes. Indeed, Congress has from time to time assigned specific
statutory missions to the Conference, requiring it to assist other Federal agencies
and demonstrating that the Conference’s membership occupies a trusted and confi­
dential role in governmental decisionmaking.3 Finally, under the Conference’s
own by-laws, its members may be considered to be special government employees
subject to Federal conflict of interest statutes and regulations. See 1 C.F.R. §
302.5(a). Accordingly, we have no difficulty in concluding that the non­
government members of the Conference occupy offices subject to the Clause. See
Offices o f Trust, 15 Op. Att’y Gen. 187, 188 (1877) (Commissioners appointed by
the President for the Centennial Exhibition hold offices of “Trust” under Clause
because they were entrusted with duties “on account of their personal qualifications
and fitness for the place.”); see also Application o f Emoluments Clause to Part-
Time Consultant fo r the Nuclear Regulatory Commission, 10 Op. O.L.C. 96, 98
(1986) (reviewing prior opinions).



    ' For exam ple, [he M agnuson-M oss W arranty Act, § 202(d) 15 U S C . § 57a note, directed A C U S to
study the Federal Trade C o m m issio n ’s "hybrid” rulem aking procedures. T he G overnm enl in the S unshine
A ct § 3(a), 5 U S C . I) 552b(g), required agencies affected by the A ct s open m eeting requirem ents to co n ­
sult with A C U S in developing th eir regulations The Equal A ccess to Justice A ct § 203(a)(1), 5 U S C. §
504(c)(1), required agencies to consult with A C U S before establishing uniform procedures for the su b m is­
sion and consideration o f applications for aw ards o f fees and expenses See B reger at 835-36.

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   ACUS suggests that the Emoluments Clause does not apply to a Conference
member’s acceptance of a proportionate share of partnership earnings attributable
to his or her law firm’s representation of a foreign government. ACUS argues that
such payments are not emoluments “from” a foreign State, but rather from the
partnership itself. ACUS Letter at 2-3. In support of that analysis, ACUS cites an
opinion of this Office, Application o f the Emoluments Clause o f the Constitution
and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156 (1982). In that
opinion, we considered the question whether an employee of the Nuclear Regula­
tory Commission (“NRC”) was authorized to work on his leave time for an Ameri­
can consulting firm on a contract to design a nuclear power plant being built by an
electrical commission of the Mexican government. The employee was to be paid
by the consulting firm from funds received from the Mexican government in con­
nection with the contract, although not all the proceeds of the contract were to go
to him. On the facts, we concluded that “ultimate control, including selection of
personnel, remains with the Mexican government,” so that “the interposition of the
American corporation [does not] relieve[] the NRC employee of the obligations
imposed by the Emoluments Clause.” Id. at 158-59. ACUS infers that this opinion
“strongly suggests that the receipt of income from a partnership arrangement,
standing alone, does not violate the Constitutional prohibition” on accepting
emoluments from a foreign State. ACUS Letter at 2.
   We agree with ACUS that our prior opinions suggest that when an employment
relationship formally exists between a domestic employer and a Federal office­
holder, the question whether the latter may be paid from foreign governmental
funds that the employer receives turns on whether the employer is acting as a mere
conduit for those funds. This test may be illustrated by contrasting the opinion that
ACUS cites (which found that the foreign government would in effect be paying
for the covered person’s services) with an earlier opinion that arrived at a different
result. In Memorandum for John G. Gaine, General Counsel, Commodity Futures
Trading Commission, from Leon Ulman, Deputy Assistant Attorney General, Of­
fice of Legal Counsel, Re: Expense Reimbursement in Connection with [X ’s] Trip
to Indonesia (Aug. 11, 1980), we considered a proposed contract under which
Harvard University provided expert consultants to the government of Indonesia.
The Indonesian government had no control over the selection of the experts and
their payments, nor had it sought to influence the selection of experts during the
years in which the consulting relationship had been in effect. We concluded in that
case that the payment of the individual consultant would not be “from” the foreign
government, but rather from the employing university.4 Id. at 5.

    4     T h e C o m p tro lle r G en eral appears lo h a v e adopted the sam e tests for determ ining w hether a proposed
paym en t from a d o m estic e m p lo y e r would v io late the E m olum ents C lause. In 69 C om p Gen. 220 (1990),
reco n sid erin g and affirm ing 65 Com p G en. 382 (1986), the G eneral A ccounting O ffice ruled that a retired
m ilitary o fficer e m p lo y ed u n d e r a contract b e tw ee n a dom estic corporation and the Saudi A rabian N avy was
subject to the E m olum ents C lau se There w as sufficient ev id e n ce to conclude that the officer *lis in actuality
an e m plo y ee o f the R oyal Saudi Naval F o rces since this en tity may control and supervise him as well as

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            A pplicability o f the E m olum ents Clause to N on-G overnm ent M em bers o f A C U S


    In the present case, our inquiry focuses on the partnership relation rather than
the employer-employee relation. “A partnership is generally said to be created
when persons join together their money, goods, labor, or skill for the purpose of
carrying on a trade, profession, or business and when there is community o f inter­
est in the profits and losses.” Commissioner v. Tower, 327 U.S. 280, 286 (1946)
(emphasis added); see also Meehan v. Valentine, 145 U.S. 611, 623 (1892) (“those
persons are partners, who contribute either property or money to carry on a joint
business for their common benefit, and who own and share the profits thereof in
certain proportions”). There is typically no such community of interest or propor­
tionate sharing of profits in the employment relation. Hence, our precedents in the
employment area, while relevant and suggestive, are not directly on point.
   ACUS contends that, “absent some direct personal contact or relationship be­
tween the Conference member and a foreign government,” the member should not
be barred from accepting “a proportionate share of partnership earnings . . . solely
because his or her firm has a foreign government among its clients.” ACUS Letter
at 3. To the extent that our opinions in the employment area suggest that the
proper test is whether the domestic employer or the foreign government has the
power to control the covered person’s activity, those opinions lend some support to
ACUS’s argument. A Conference member who did not personally represent a for­
eign government, and indeed had no personal contact with that client of the firm,
could not be said to be subject to the foreign government’s “control” in his or her
activities on behalf of the partnership. But we think that this consideration is not
decisive. More important, in our view, is the fact that the Conference member
would draw a proportionate share of the partnership’s pooled profits, which would
include any profits the firm earned from representing its foreign governmental cli­
ent. Because the amount the Conference member would receive from the partner­
ship’s profits would be a function of the amount paid to the firm by the foreign
government, the partnership would in effect be a conduit for that government.
Thus, some portion of the member’s income could fairly be attributed to a foreign
government. We believe that acceptance of that portion of the member’s partner­
ship share would constitute a prohibited emolument.
   ACUS points out that our April 1991 Opinion stated that 18 U.S.C. § 219 does
not implicitly disqualify an individual from serving on an advisory committee sim­
ply because he or she is a partner at a firm that is required by statute to register as a
foreign agent. See ACUS Letter at 3; 15 Op. O.L.C. at 66 n.4. ACUS urges that
we adopt a similar conclusion with respect to the Emoluments Clause. Section
219, a criminal statute, makes it an offense for a public official (including members
of advisory committees covered by the Federal Advisory Committee Act, 5 U.S.C.

term inate his em ploym ent." 65 Com p. G en at 385 S im ilarly, the G eneral A ccounting O ffice ruled that a
retired m ilitary o fficer who w as em ployed and paid by a dom estic corporation and then assigned to w ork for
an Israeli governm ent instrum entality was w ithin the C lause It was show n that the dom estic corporation
was in effect m erely an em ploym ent agency, and that the officer was actually w orking for the foreign g ov­
ernm en t that had procured his services See 53 C om p G en 753 (1974).

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                                      Opinions o f th e Office o f L egal C ounsel


app. 2, §§ 1-16) to be or act as the agent of certain foreign principals. We think
that the action of one partner acting as such a foreign agent cannot under this
criminal statute be fairly imputed to another partner who serves on an advisory
committee. But it by no means follows that a partner does not receive income from
a foreign government within the meaning of the Emoluments Clause when an iden­
tifiable portion of his or her partnership draw can be attributed to the partnership’s
fees from such a client.
    Accordingly, we conclude that, absent the consent of Congress, the Emoluments
Clause would prohibit members of the Conference from accepting a share of part­
nership earnings, where some portion of that share is derived from the partner­
ship’s representation of a foreign government.

                                                             B.

    ACUS further informs us that some private Conference members from time to
time have among their personal clients foreign government-owned or -controlled
instrumentalities, or business or proprietary corporations in which foreign govern­
ments have ownership interests. Other Conference members may from time to time
receive payment for teaching at foreign public universities. ACUS Letter at 2.
    ACUS suggests that payments accepted by private members for services ren­
dered to a foreign government should not be considered to be forbidden emolu­
ments when such a government is acting through commercial instrumentalities that
it owns or controls, or through public academic institutions. See ACUS Letter at 3-
4. Such payments, ACUS suggests, would not not be accepted “from any . . . for­
eign State.”
    We deal first with the question of foreign government-owned or -controlled
commercial enterprises. In our opinion, such a corporation should indeed be con­
sidered to be a “foreign State” within the meaning of the Emoluments Clause. A c­
cord 53 Comp. Gen. at 756 (corporation owned by government of Israel held
within purview of Clause). It may be true, as ACUS says, that when foreign gov­
ernments act in their commercial capacities, they do not exercise powers peculiar
to sovereigns. See ACUS Letter at 3 (citing A lfred Dunhill o f London, Inc. v. Re­
public o f Cuba, 425 U.S. 682, 704 (1976)); but see id. at 715 (Powell, J , concur­
ring) (“the line between commercial and political acts of a foreign state often will
be difficult to delineate”).5 But nothing in the text of the Emoluments Clause lim­
its its application solely to foreign governments acting as sovereigns.


   3 In D u n h ill, the C o u rt d eclined to extend th e A ct o f State d o ctrine "to include the repudiation o f a purely
com m ercial o b lig atio n ow ed by a foreign so v ereig n or by one o f its com m ercial instrum entalities “ 425 U S.
at 695. T h e case is at best m arginally relevant to the issues here. M oreover, underlying the presum ptive
distinctio n b etw een foreign governm ental b u sin ess corporations and the sovereigns that ow n or control them
are c on cern s for “econom ic developm ent and efficient ad m in istratio n ,'’ reinforced by *‘[d]ue respect for the
actions taken by fo reig n sov ereig n s and for principles o f c o m ity .” F irst N a t'I C itv Bank v Banco Para El
C om ercio , 4 6 2 U .S. 611, 626 (1983) But ev en in com m ercial co ntexts w here concerns for econom y and

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            A p plicability o f the E m olum ents C lause to Non-G overnm ent M em bers o f A C U S


    The language of the Emoluments Clause is both sweeping and unqualified. See
49 Comp. Gen. 819, 821 (1970) (the “drafters [of the Clause] intended the prohi­
bition to have the broadest possible scope and applicability”). It prohibits those
holding offices of profit or trust under the United States from accepting “any pres­
ent, Emolument, Office, or Title, o f any kind whatever” from “any . . . foreign
State” unless Congress consents. U.S. Const, art. I, § 9, cl. 8 (emphasis added).
There is no express or implied exception for emoluments received from foreign
States when the latter act in some capacity other than the performance of their po­
litical or diplomatic functions. The decision whether to permit exceptions that
qualify the Clause’s absolute prohibition or that temper any harshness it may cause
is textually committed to Congress, which may give consent to the acceptance of
offices or emoluments otherwise barred by the Clause.
    Moreover, a foreign government’s ownership or control of a corporation may
render the corporation that government’s agent. See First N at’l City Bank v.
Banco Para El Commercio, 462 U.S. at 629. Indeed, as the Court has noted, “[a]
typical government instrumentality, if one can be said to exist, is created by an
enabling statute that prescribes the powers and duties of the instrumentality, and
specifies that it is to be managed by a board selected by the government in a man­
ner consistent with the enabling law.” Id. at 624 (emphasis added). We believe
that the Emoluments Clause should be interpreted to guard against the risk that
occupants of Federal office will be paid by corporations that are, or are susceptible
of becoming, agents of foreign States, or that are typically administered by boards
selected by foreign States. Accordingly, we think that, in general, business corpo­
rations owned or controlled by foreign governments will fall within the Clause.6
    The question whether the Emoluments Clause extends to foreign public univer­
sities is somewhat more difficult. Our prior opinions on this subject have not been
a seamless web. Thus, in Memorandum for H. Gerald Staub, Office of Chief
Counsel, NASA, from Samuel A. Alito, Jr., Deputy Assistant Attorney General,
Office of Legal Counsel, Re: Emoluments Clause Questions raised by NASA Sci­
entist's Proposed Consulting Arrangement with the University o f New South Wales
(May 23, 1986), we concluded that while the University of New South Wales was
clearly a public institution, it was not so clear that it was a “foreign State” under
the Emoluments Clause, given its functional and operational independence from
the government of Australia and state political instrumentalities. Accordingly, we
opined that the question posed there — whether a NASA employee could accept a

efficiency loom larger than they do here, the C ourt has been prepared to hold that presum ptive distinction
overcom e Id at 630-33
    6     We acknow ledge that the Foreign G ifts and D ecorations Act, w hich provides C o n g re ss’s co n sen t to
certain transactions otherw ise forbidden by the Em olum ents C lause, does not expressly subsum e c o rp o ra ­
tions ow ned o r controlled by foreign States w ithin its definition o f a “foreign governm ent." See 5 U S.C §
7342(a)(2) Rather, that definition ex ten d s prim arily to “ any unit o f foreign governm ental authority,” id. §
7342(a)(2)(A ), and it is plausible to argue that such corporations are not units o f governm ental authority.
H ow ever, we do not assum e that the A c t’s definition is necessarily coextensive with the constitutional c o n ­
cept o f a “foreign State.”

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fee of $150 for reviewing a Ph.D. thesis — had to be answered by considering the
particular circumstances of the case, in order to determine whether the proposed
arrangement had the potential for corruption or improper foreign influence of the
kind that the Emoluments Clause was designed to address. On other occasions,
however, we have construed the Emoluments Clause to apply to public institutions
of higher education in foreign countries.7
    In support of its view that the Emoluments Clause does not apply to foreign
public universities, ACUS argues that the Clause was designed to guard against the
exercise o f improper influence on Federal office-holders by the political or diplo­
matic agencies of foreign States, because payments by those agencies are most
likely to create a conflict between the recipient’s Federal employment and his or
her outside activity. See ACUS Letter at 4. Because public universities do not
generally perform political or diplomatic functions, they ought not, on ACUS’s
analysis, to be brought within the Clause. We think, however, that the contrary
view is the better one.
    To begin with, we reiterate that the language of the Emoluments Clause does
not warrant any distinction between the various capacities in which a foreign State
may act. Any emoluments from a foreign State, whether dispensed through its po­
litical or diplomatic arms or through other agencies, are forbidden to Federal of-
fice-holders (unless Congress consents). Further, it serves the policy behind the
Emoluments Clause to construe it to apply to foreign States even when they act
through instrumentalities which, like universities, do not perform political or dip­
lomatic functions. Those who hold offices under the United States must give the
government their unclouded judgment and their uncompromised loyalty. See 10
Op. O.L.C. at 100. That judgment might be biased, and that loyalty divided, if
they received financial benefits from a foreign government, even when those bene­
fits took the form of remuneration for academic work or research.8 Thus, United
States Government officers or employees might well find themselves exposed to
conflicting claims on their interests and loyalties if they were permitted to accept
employment at foreign public universities.
    Finally, Congress has exercised its power under the Emoluments Clause to cre­
ate a limited exception for academic research at foreign public institutions of
learning. The Foreign Gifts and Decorations Act provides in part that Federal em­

     7 See, e g , M em o ran d u m for Files from R obert J. D elahunty, A cting Special C ounsel, O ffice o f Legal
C ounsel, R e: A p p lica b ility o f Em olum ents C la u se to E m p lo ym en t o f C F T C A ttorney by E ast C hina Institute
o f P o litic s a n d L a w (A ug 27, 1992), M em orandum for Files from B arbara E A rm acost, A ttorney-A dviser,
O ffice o f Legal C ounsel, R e Em olum ents C la u se a n d A p p o in tm en t to the P re sid e n t's C om m ittee on the Arts
and H u m a n ities (N ov. 15, 1990) The G en eral A ccounting O ffice has reached a sim ilar result See 44
C om p G en 130 (1 9 6 4 ) (retired C oast G uard o fficer subject to recall to active duty held not entitled to re­
tirem en t pay for perio d in w hich he was teach in g for the D epartm ent o f E ducation o f the State o f T asm ania,
A ustralia)
     8 C o n siste n t w ith this view , w e have opined that an em ployee o f the N ational A rchives could not serve on an
international co m m issio n o f historians created and funded by the A ustrian G overnm ent to review the w ar­
tim e record o f Dr. K urt W ald h eim , the President o f A ustria See A p p lica b ility oj E m olum ents C lause to P ro­
p o s e d S e rv ic e o j G o vern m en t Em ployee on C o m m issio n o f In te rn a tio n a l H istorians, 11 O p O .L .C 8 9 (1 9 8 7 )

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             A pplicability o f the Em olum ents Clause to N on-G overnm ent M em bers o f A C U S


ployees may accept from foreign governmental sources “a gift of more than mini­
mal value when such gift is in the nature of an educational scholarship.” 5 U.S.C.
§ 7342(c)(1)(B).9 Thus, Congress has recognized that foreign governmental bod­
ies may wish to reward or encourage scholarly or scientific work by employees of
our Government, but has carefully delimited the circumstances in which Federal
employees may accept such honors or emoluments. That suggests that Congress
believes both that the Emoluments Clause extends to paid academic work by Fed­
eral employees at foreign public universities, and that the Clause’s prohibition on
such activity should generally remain in force.
   Accordingly, we conclude that foreign governmental entities, including public
universities, can and presumptively do constitute instrumentalities of foreign States
under the Emoluments Clause, even if they do not engage specifically in political
or diplomatic functions.10

                                                Conclusion

   Non-government members of the Administrative Conference are prohibited by
the Emoluments Clause from accepting a distribution from their partnerships that
includes some proportionate share of the revenues generated from the firm’s for­
eign government clients.
   Similarly, non-government members of the Conference are in general forbidden
by the Emoluments Clause from accepting payments from commercial entities
owned or controlled by foreign States. This prohibition also extends to the accept­
ance of payments for teaching at foreign universities that are instrumentalities of
foreign States.

                                                               WALTER DELLINGER
                                                              Assistant Attorney General
                                                               Office o f Legal Counsel

    9     We have opined that this exception applied to an aw ard o f approxim ately $24,000 by a foundation act­
ing on b eh alf o f the W est G erm an G overnm ent to a scientist em ployed by the N aval R esearch L aboratory
W e reasoned that a “program designed to honor U nited States scientists and enable them ‘to stay for an
extended period at research institutes in the Federal R epublic o f G erm any to carry out research o f the
A w ard ee 's ow n c h o ice’ seem s to be m the nature o f an educational scholarship, acceptance o f w hich C on­
gress has p e rm u te d " Letter for W alter T Skallerup, Jr., G eneral C ounsel, D epartm ent o f the N avy, from
R obert B Shanks, Deputy A ssistant A ttorney G eneral, O ffice o f Legal C ounsel at 4 (M ar. 17, 1983)
       ACUS points out that it is an advisory co m m ittee, and that “the nature o f an advisory com m ittee is that
an individual — o r even the com m ittee as a w hole — c an n o t d eterm ine the course of governm ental action **
A C U S Letter at 4 But, as we have noted above, ACUS is also, by statute, a Federal agency. M oreover, even
considered solely as an advisory com m ittee, A C U S could influence governm ental decisionm aking. See
A ssocia tio n o f Am P hysicians a n d Surgeons, Inc v C linton, 997 F 2d 898, 913-14 (D .C . Cir. 1993) Hence,
the advisory nature o f ACUS does not render it im m une from the possibility that a foreign State m ight exert
im proper influence on and through it A C U S also o b jects that “ [ijt w ould be particularly unusual for a rec­
om m endation by the A dm inistrative C onference to be o f significant interest to a foreign governm ent "
A C U S Letter at 5 But there m ay be no w ay o f fine-tuning the prohibitions on the acceptance of foreign go v ­
ernm ental em olum ents to reach precisely such “ unusual" cases In any event, the C onstitution itse lf lays dow n
a stark and unqualified rule, and leaves it to the legislative process to w ork out any needed qualifications

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