Application of the Emoluments Clause to a Member of the FBI Director's Advisory Board ( 2007 )

Application of the Emoluments Clause to a Member
of the FBI Director’s Advisory Board
A member of the FBI Director’s Advisory Board does not hold an “Office of Profit or Trust” under the
Emoluments Clause of the Constitution.
June 15, 2007
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
FEDERAL BUREAU OF INVESTIGATION
You have asked whether a member of the Federal Bureau of Investigation
(“FBI”) Director’s Advisory Board (the “Board”) holds an “Office of Profit or
Trust” under the Emoluments Clause of the Constitution. See U.S. Const. art. I,
§ 9, cl. 8. We conclude that he does not.
I.
The Board is charged with advising the Director of the FBI (“Director”) on how
the FBI can more effectively exploit and apply science and technology to improve
its operations, particularly its priorities of preventing terrorist attacks, countering
foreign intelligence operations, combating cyber-based attacks, and strengthening
the FBI’s collaboration with other federal law enforcement agencies. See FBI
Press Release, FBI Director Renames and Announces Additions to Advisory Board
(Oct. 6, 2005) (available at http://www.fbi.gov/news/pressrel/press-releases/fbi-
director-renames-and-announces-additions-to-advisory-board, last visited Aug. 11,
2014); see also Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7,
§ 109, 117 Stat. 11, 67 (“[The Board] shall not be considered to be a Federal
advisory committee for purposes of the Federal Advisory Committee Act.”).
Board members serve, without terms, at the pleasure of the Director. The Board is
scheduled to meet four times per year, unless the Director calls additional ad hoc
meetings. Although Board members are entitled to travel reimbursements and are
classified as special government employees, they receive no other compensation.
See 18 U.S.C. § 202(a) (2000).
The sole role of the Board is to advise the Director, who is free to adopt, modi-
fy, or ignore its recommendations. Board members have no decisional or enforce-
ment authority, and they exercise no supervisory responsibilities over other
persons or employees as a result of their positions on the Board. Board members
cannot bind the United States or direct the expenditure of appropriated or non-
appropriated funds. In addition, Board members do not represent or act on behalf
of the Director or the FBI in any particular matter. Board members hold Top
Secret security clearances and may receive access to classified information
pursuant to their service on the Board, although they do not possess any authority
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Application of the Emoluments Clause to a Member of the FBI Director’s Advisory Board
to access, remove, disseminate, declassify, publish, modify, change, manipulate,
originate, or otherwise regulate or oversee the government’s handling of classified
information. Members of the Board sign nondisclosure agreements in which they
agree not to disclose classified information they receive.
You have indicated that several Board members wish to travel overseas at the
invitation of foreign governments in connection with their non-FBI interests and
wish to be reimbursed by those governments for their travel expenses. Travel
reimbursements by foreign governments may constitute emoluments under the
Emoluments Clause. See, e.g., Memorandum for John G. Gaine, General Counsel,
Commodity Futures Trading Commission, from Leon Ulman, Deputy Assistant
Attorney General, Office of Legal Counsel, Re: Expense Reimbursement in
Connection with Chairman Stone’s Trip to Indonesia at 2 n.2 (Aug. 11, 1980).1
The question before us is whether membership on the Board is an “Office of Profit
or Trust under [the United States]” within the meaning of the Emoluments Clause.
We conclude that it is not.
II.
The Emoluments Clause provides, in relevant part, that “no Person holding any
Office of Profit or Trust under [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.” U.S. Const. art. I, § 9, cl. 8
(emphasis added). “[I]n order to qualify as an ‘Office of Profit or Trust under [the
United States],’ a position must, first and foremost, be an ‘Office under the United
States.’” Application of the Emoluments Clause to a Member of the President’s
Council on Bioethics, 29 Op. O.L.C. 55, 56 (2005) (“2005 Opinion”) (second
alteration in original). In the 2005 Opinion, we concluded that a member of the
President’s Council on Bioethics, an advisory board, did not hold an “Office under
the United States” and therefore was not subject to the Emoluments Clause. As we
stated there:
1
Congress has already granted its consent under the Emoluments Clause for officials to receive
reimbursement from foreign governments for certain foreign travel expenses. The Foreign Gifts and
Decorations Act, 5 U.S.C. § 7342 (2000), allows employees, with the approval of their agencies, to receive
payment of appropriate travel expenses for travel taking place entirely outside the United States. Id.
§ 7342(c)(1)(B)(ii). But that statute does not address what is often the most significant single expense
incurred in foreign travel, the cost of the flight to and from the United States. We assume, for purposes of
this opinion, that the travel reimbursement received by Board members constitutes compensation for
services, and therefore is not prohibited under section 7342(b). See, e.g., Application of the Emoluments
Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 157 (1982) (“It
seems clear that [the Foreign Gifts and Decorations Act] only addresses itself to gratuities, rather than
compensation for services actually performed”).
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Opinions of the Office of Legal Counsel in Volume 31
The text of the Emoluments Clause suggests that an “Office of Profit
or Trust under [the United States]” must be an “Office under the
United States.” . . . [T]o the extent that the phrase “of Profit or Trust”
is relevant, it may serve to narrow an “Office . . . under [the United
States]” to those that are “of Profit or Trust,” or an “Office of Profit
or Trust” may be synonymous with an “Office . . . under [the United
States],” but it is clear that the words “of Profit or Trust” do not ex-
pand coverage of the Emoluments Clause beyond what would oth-
erwise qualify as an “Office . . . under [the United States].”
Id. at 56–57 (first ellipsis and first and second brackets added). The threshold
question, therefore, in determining whether a member of the Board holds an
“Office of Profit or Trust under [the United States]” is whether a position on the
Board is an “Office under the United States.”
In the 2005 Opinion, we concluded that a purely advisory position is not an
“Office under the United States.” Our analysis emphasized that persons holding
advisory positions of the sort at issue there did not exercise governmental authori-
ty. Id. at 63–64. After reviewing two centuries of caselaw, authoritative commen-
taries, and numerous opinions of this Office, we observed that “[i]nnumerable . . .
authorities . . . make clear that an indispensable element of a public ‘office’ is the
exercise of some portion of delegated sovereign authority.” Id. at 67. See generally
Officers of the United States Within the Meaning of the Appointments Clause, 31
Op. O.L.C. 73, 87 (2007) (“Appointments Clause”) (“As a general matter, . . . one
could define delegated sovereign authority as power lawfully conferred by the
Government to bind third parties, or the Government itself, for the public bene-
fit. . . . [S]uch authority primarily involves the authority to administer, execute, or
interpret the law.”). We therefore concluded: “To be an ‘office,’ a position must at
least involve some exercise of governmental authority, and an advisory position
does not.” 2005 Opinion, 29 Op. O.L.C. at 64; id. at 71 (“As the Supreme Court
made clear in Buckley v. Valeo, 424 U.S. 1 (1976), . . . an ‘officer of the United
States’ exercises ‘significant authority pursuant to the laws of the United States,’
id. at 126 (emphasis added).”); accord Appointments Clause, 31 Op. O.L.C. at 79,
86, 99–100.
The only relevant distinction between the advisory position at issue in the 2005
Opinion and membership on the Board is that a Board member may receive access
to classified information in connection with his official duties. 2 To conclude that
2
While the members of the President’s Committee on Bioethics—the subject of the 2005 Opin-
ion—received modest compensation for their services, see 2005 Opinion, 29 Op. O.L.C. at 55, the
members of the Board are not compensated. We have previously concluded, however, that while “an
emolument is . . . a common characteristic of an office,” it “is not essential.” Appointments Clause, 31
Op. O.L.C. at 119.
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membership on the Board is an “Office of Profit or Trust” within the meaning of
the Emoluments Clause, therefore, we would necessarily have to conclude that, by
receiving access to classified information, Board members have received a
delegation by legal authority of a portion of the sovereign power of the federal
government.
The mere provision of access to classified information, however, is not such a
delegation. Board members are given access to classified information solely to
help them perform their advisory function; they have no discretionary authority to
access, remove, disseminate, declassify, publish, modify, change, manipulate, or
originate classified information. They do not have supervisory or oversight
authority for the government’s handling or regulation of classified information. Cf.
2005 Opinion, 29 Op. O.L.C. at 72–73 (discussing similar authority). Board
members who receive such information do not thereby acquire “the right or power
to make any . . . law, nor can they interpret or enforce any existing law,” 1 Asher
C. Hinds, Hinds’ Precedents of the House of Representatives of the United States
604, 608 (1907), nor can they “hear and determine judicially questions submitted
[to them],” id. at 607. Nor does their receipt of such information empower Board
members to “bind the Government or do any act affecting the rights of a single
individual citizen.” Id. at 610; accord Opinion of the Justices, 3 Greenl. (Me.) 481,
482 (1822) (“The power thus delegated and possessed [by an officer], may be a
portion belonging sometimes to one of the three great departments, and sometimes
to another; still it is a legal power, which may be rightfully exercised, and in its
effects it will bind the rights of others . . . .”) (emphasis added). Rather, receipt of
classified information only gives rise to a negative duty not to disclose that
information to persons who may not lawfully have access to it. We do not
understand the duty to safeguard classified information to constitute a portion of
the sovereign power of the federal government. That duty is broadly analogous to
the duty of any person entrusted with the due care of government property under
his control, which—absent authority to alienate that property—has not traditional-
ly been considered to constitute sovereign authority sufficient to render a position
an “office.” See Appointments Clause, 31 Op. O.L.C. at 90 (collecting authorities).
In addition, the Board members’ duty of nondisclosure originates not in the
statute creating the Board and establishing its duties, but in such authorities as
confidentiality agreements executed by the Board members, Exec. Order No.
13292 (Mar. 25, 2003), 3 C.F.R. 196 (2003 Comp.), and generally applicable
statutes penalizing the unauthorized disclosure of classified information, see, e.g.,
18 U.S.C. § 793(d), (f) (2000); id. § 798 (2000). See generally Freytag v. Comm’r,
501 U.S. 868, 881 (1991) (contrasting special trial judges, whose duties were
“specified by statute,” with special masters, who were hired “on a temporary,
episodic basis, whose positions are not established by law, and whose duties and
functions are not delineated in a statute”); id. at 901 (opinion of Scalia, J.)
(agreeing with this analysis); Floyd R. Mechem, A Treatise on the Law of Public
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Opinions of the Office of Legal Counsel in Volume 31
Offices and Officers § 507, at 332 (1890) (“The authority of a public officer in any
given case consists of those powers which are expressly conferred upon him by the
act appointing him, or which are expressly annexed to the office by the law
creating it or some other law referring to it, or which are attached to the office by
common law as incidents to it.”). Although we do not consider that fact disposi-
tive, see Appointments Clause, 31 Op. O.L.C. at 117–18, it tends to confirm that
Board members’ duty of nondisclosure is simply ancillary to their advisory duties,
which, as noted above, are not sufficient to render the position an “office” under
the Appointments Clause, U.S. Const. art. II, § 2, cl. 2. It also tends to confirm that
the Board members’ duty of nondisclosure is indistinguishable from the general
duty that any employee or even contractor with access to such information would
have, rather than constituting some special authority associated with service on the
Board.
Accordingly, we conclude that a member of the Board does not hold an “Office
under the United States” by virtue of that position, and likewise does not hold an
“Office of Profit or Trust [under the United States]” within the meaning of the
Emoluments Clause. See 2005 Opinion, 29 Op. O.L.C. at 71 (“A position that
carried with it no governmental authority (significant or otherwise) would not be
an office for purposes of the Appointments Clause, and therefore . . . would not be
an office under the Emoluments Clause . . . .”).
We acknowledge that the 2005 Opinion, in concluding that members of the
President’s Council on Bioethics were not “officers” for purposes of the Emolu-
ments Clause, noted, among other factors, that members did not have access to
classified information, 29 Op. O.L.C. at 55, and cited a handful of opinions that
“suggested that individuals with access to sensitive, national security-related
information held ‘Office[s] of Profit or Trust’ under the Emoluments Clause,
without further analyzing the extent of governmental authority exercised by these
federal employees.” Id. at 72; see also id. at 72 n.10 (collecting citations). In light
of those opinions, we wrote, “it is at least arguable that the authority to control and
safeguard classified information does amount to the exercise of governmental
authority sufficient to render employment with the federal government a public
‘office.’” Id. at 72.
One of those opinions involved a part-time staff consultant to the Nuclear
Regulatory Commission. See Application of Emoluments Clause to Part-Time
Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96 (1986)
(“1986 Opinion”). 3 In the 1986 Opinion, we concluded that such a staff consultant
3
The 2005 Opinion also cites a Letter for James A. Fitzgerald, Assistant General Counsel, Nuclear
Regulatory Commission, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel
(June 3, 1986). That is not, however, a separate opinion, but simply the unpublished version of the
1986 Opinion.
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could not, consistent with the Emoluments Clause, accept employment with a
private domestic corporation to perform work on a contract with a foreign
government. Id. at 96. In reaching that conclusion, we appeared to place heavy
weight on the fact that the consultant might have access to sensitive or classified
information:
[The consultant] is highly valued for his abilities and . . . in the
course of his employment, he may develop or have access to sensi-
tive and important, perhaps classified information. Even without
knowing more specifically the duties of his employment, these fac-
tors are a sufficient indication that the United States government has
placed great trust in [him] and requires and expects his undivided
loyalty. Therefore, we believe the Emoluments Clause applies to
him.
Id. at 99. In the 1986 Opinion, we did not consider whether access to classified
information constitutes a delegation by legal authority of a portion of the sover-
eign power of the federal government. While we noted that “[p]rior opinions of
this Office have assumed . . . that the persons covered by the Emoluments Clause
were ‘officers of the United States,” id. at 98, we interpreted the Emoluments
Clause as a “prophylactic provision” whose reach was not limited to “officers of
the United States.” Id. Instead, we concluded that the relevant inquiry under the
Emoluments Clause was “whether [the employee’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.” Id. As we have
since determined, however, a person who does not hold an office under the United
States is not subject to the Emoluments Clause. See 2005 Opinion, 29 Op. O.L.C.
at 56 (“[I]n order to qualify as an ‘Office of Profit or Trust under [the United
States],’ a position must, first and foremost, be an ‘Office under the United
States.’”) (second alteration in original).
III.
A sentence in our 2005 Opinion identifies United States v. Hartwell, 73 U.S.
(6 Wall.) 385 (1867), as supporting the proposition that “the authority to control
and safeguard classified information does amount to the exercise of governmental
authority sufficient to render employment with the federal government a public
‘office.’” 2005 Opinion, 29 Op. O.L.C. at 72. But, on a close reading of Hartwell,
we find it consistent with our analysis above. In Hartwell, the Court held that a
clerk in the office of an assistant treasurer of the United States was an “officer of
the United States” for purposes of a federal embezzlement statute. 73 U.S. at 391–
93. In reaching that conclusion, the Court noted a number of factors, including that
Hartwell was “charged with the safe-keeping of the public moneys of the United
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Opinions of the Office of Legal Counsel in Volume 31
States.” Id. at 392. By analogy to Hartwell, “it could be argued that a federal
government employee charged with safeguarding sensitive national security-
related information would likewise be a public officer charged with the exercise of
some governmental authority.” 2005 Opinion, 29 Op. O.L.C. at 72.
We do not read Hartwell so broadly. The statute under which Hartwell was
indicted applied to “all officers and other persons charged by this act or any other
act with the safekeeping, transfer and disbursement of the public moneys.” 73 U.S.
at 387 (emphasis and internal quotation marks omitted). The Court determined that
Hartwell was both an “officer” and a “person charged with the safe-keeping of the
public money within the meaning of the act.” Id. at 393 (emphasis and internal
quotation marks omitted); see also id. (“Was the defendant an officer or person
‘charged with the safe-keeping of the public money’ within the meaning of the
act? We think he was both.”). The fact that Hartwell was responsible for “the safe-
keeping of the public moneys of the United States,” id. at 392, was relevant, not
because it made Hartwell an officer, but because it made him an “officer[] [or]
other person[] charged by this act or any other act with the safe-keeping, transfer
and disbursement of the public moneys.” Id. at 387 (emphasis and internal
quotation marks omitted). He therefore was liable for criminal prosecution under
the act irrespective of the fact that he was an officer. See id. at 390–91.
That Hartwell was charged with the safekeeping of the public moneys of the
United States does not appear to have been relevant to the Court’s analysis of
whether he was also an officer. Rather, Hartwell’s status as an officer appears to
have been based on the fact that his
employment . . . was in the public service of the United States. He
was appointed pursuant to law, and his compensation was fixed by
law. Vacating the office of his superior would not have affected the
tenure of his place. His duties were continuing and permanent, not
occasional or temporary. They were to be such as his superior in of-
fice should prescribe.
Id. at 393. Hartwell therefore is not dispositive of whether being generally
entrusted with due care of public funds is itself a delegation by legal authority of a
portion of the sovereign power of the federal government, such that the recipient
of such authority holds an “Office under the United States.” A fortiori, Hartwell
does not determine whether receiving access to classified information constitutes
such a delegation.
IV.
Because mere access to, or receipt of, classified information is not a delegation
by legal authority of a portion of the sovereign power of the United States, a
member of the Board does not hold an “Office under the United States” by virtue
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of that position and therefore does not hold an “Office of Profit or Trust [under the
United States]” within the meaning of the Emoluments Clause. See 2005 Opinion,
29 Op. O.L.C. at 72. 4 To the extent the 1986 Opinion reached a contrary conclu-
sion, the 2005 Opinion has substantially undermined the basis for that conclusion,
and the 1986 Opinion is no longer authoritative. 5
JOHN P. ELWOOD
Deputy Assistant Attorney General
Office of Legal Counsel
4
The FBI may, of course, take foreign ties into account in determining the propriety of a person’s
service on the Board and the appropriateness of granting security clearances.
5
The 2005 Opinion referred to two other opinions in which “we suggested that individuals with
access to sensitive, national security-related information held ‘Office[s] of Profit or Trust’ under the
Emoluments Clause.” 2005 Opinion, 29 Op. O.L.C. at 72; see id. at 72 n.10 (citing Application of the
Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156
(1982), and Memorandum for James H. Thessin, Assistant Legal Adviser for Management, Department
of State, from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re:
Application of the Emoluments Clause to a Civilian Aide to the Secretary of the Army (Aug. 29, 1988)).
In both of those opinions, however, the individuals in question were regular full-time employees of the
United States government, and those opinions therefore do not directly bear on the part-time advisory
positions at issue here.
161