Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President's Receipt of the Nobel Peace Prize ( 2009 )

APPLICABILITY OF THE EMOLUMENTS CLAUSE AND THE FOREIGN
GIFTS AND DECORATIONS ACT TO THE PRESIDENT’S RECEIPT OF THE
NOBEL PEACE PRIZE
The Emoluments Clause of the Constitution does not apply to the President’s receipt of the Nobel
Peace Prize.
The Foreign Gifts and Decorations Act does not bar the President from accepting the Peace
Prize without congressional consent.
December 7, 2009
MEMORANDUM OPINION FOR
THE COUNSEL TO THE PRESIDENT
This memorandum concerns whether the President’s receipt of the Nobel Peace Prize
would conflict with the Emoluments Clause of the Constitution, which provides 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. As we previously explained in our
oral advice and now explain in greater detail, because the Nobel Committee that awards the
Peace Prize is not a “King, Prince, or foreign State,” the Emoluments Clause does not apply.
You have also asked whether the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342 (2006),
bars the President from receiving the Peace Prize. Here, too, we confirm our previous oral
advice that it does not.
I.
On October 9, 2009, the Norwegian Nobel Committee (the “Peace Prize Committee”
or the “Committee”), headquartered in Oslo, Norway, announced that the President will be this
year’s recipient of the Nobel Peace Prize. The 2009 Peace Prize, which will consist of ten
million Swedish Kroner (or approximately $1.4 million), a certificate, and a gold medal bearing
the image of Alfred Nobel, is expected to be awarded by the Nobel Committee to the President
on December 10, 2009—the anniversary of Nobel’s death. See Statutes of the Nobel Foundation
§ 9, available at http://nobelprize.org/nobelfoundation/statutes.html (last visited Nov. 24, 2009)
(“Nobel Foundation Statutes”); see also The Nobel Prize Amounts, available at
http://nobelprize.org/nobel_prizes/amounts.html (last visited Nov. 24, 2009).
The Peace Prize is a legacy of Swedish chemist Alfred Bernhard Nobel. In his will,
Nobel directed that a portion of his wealth be used to establish a set of awards, one of which, the
Peace Prize, was intended to honor the person or entity that “shall have done the most or the best
work for fraternity between nations, for the abolition or reduction of standing armies and for the
holding and promotion of peace congresses.” Nobel Foundation Statutes § 1 (setting forth the
pertinent provision of Nobel’s will). The relevant assets of the Nobel estate have been managed
since 1900 by the Nobel Foundation, a private institution based in Stockholm, Sweden. See
Birgitta Lemmel, The Nobel Foundation: A Century of Growth and Change (2007), available
at http://nobelprize.org/nobelfoundation/history/lemmel (last visited Nov. 24, 2009). The
Opinions of the Office of Legal Counsel in Volume 33
Foundation is responsible for managing the assets of the bequest in such a manner as to provide
for the annual award of the Nobel prizes and the operation of the prize-awarding bodies,
including the Nobel Committee that selects the Peace Prize. Nobel Foundation Statutes § 14;
see also Lemmel, supra (“One vital task of the Foundation is to manage its assets in such a way
as to safeguard the financial base of the prizes themselves and of the prize selection process.”).
Unlike the other Nobel prizes, for accomplishments in fields such as literature and physics,
which are awarded by committees appointed by Swedish institutions, Nobel specified in his will
that the recipient of the prize “for champions of peace” was to be selected “by a committee of
five persons to be elected by the Norwegian Storting [i.e., the Norwegian Parliament].” Nobel
Foundation Statutes § 1.
On April 26, 1897, the Storting formally agreed to carry out Nobel’s will and, in August
of that year, elected the first members of the Nobel Committee that would award the prize
funded by Nobel’s estate. That Committee—not the Storting itself, or any other official
institution of the Norwegian government, or the Nobel Foundation—has selected the Peace Prize
recipients since 1901. To be sure, in its nascent years, the Nobel Committee was more “closely
linked not only to the Norwegian political establishment in general, but also to the Government,”
than it is today. See Øyvind Tønnesson, The Norwegian Nobel Committee (1999), available at
http://nobelprize.org/nobel_prizes/peace/articles/committee (last visited Nov. 24, 2009). Indeed,
until 1977, the Committee’s official title was the Nobel Committee of the Norwegian Storting.
Nevertheless, it has long been recognized that the “[C]ommittee is formally independent even of
the Storting, and since 1901 it has repeatedly emphasized its independence.” Tønnesson, supra.
In 1936, for instance, the Norwegian Foreign Minister and a former Prime Minister recused
themselves from the Committee’s deliberations out of concern that bestowing the award on the
German pacifist Carl von Ossietzky would be perceived as an act of Norwegian foreign policy.
Id.; see also Berlin Protests Ossietzky Award, N.Y. Times, Nov. 26, 1936, at 22 (noting that
“Norway [d]enies [r]esponsibility for Nobel [d]ecision”). To make clear the independent nature
of the Committee’s decisions, moreover, the Storting in the very next year, 1937, barred
government ministers from sitting on the Nobel Committee. See Special Regulations for the
Award of the Nobel Peace Prize and the Norwegian Nobel Institute, etc., adopted by the Nobel
Committee of the Norwegian Storting on the 10th day of April in the year 1905 (including
amendments of 1977, 1991, 1994, 1998 and 2000) § 9, available at
http://nobelprize.org/nobelfoundation/ statutes-no.html (last visited Nov. 24, 2009) (“Nobel
Peace Prize Regulations”) (“If a member of the [Nobel] Committee is appointed a member of the
Government during his period of office, or if a member of the Government is elected a member
of the Committee, he shall resign from the Committee for as long as he continues in office as a
Minister”). Furthermore, for more than 30 years, no member of the Committee has been permitted
as a general matter to continue serving in the Storting. See Tønnesson, supra (“[I]n 1977 . . .
the Storting decided that its members should not participate in nonparliamentary committees
appointed by the Storting itself.”). 1 That said, an appointment to the Committee does not appear
to require a sitting member of the Storting to resign immediately from his or her government
position, and thus two of the current members, who joined the Nobel Committee in 2009, appear
to have served on the Storting during much, if not all, of the period during which this year’s
1
To further emphasize the Committee’s independence from the Norwegian government, including the
monarchy, “[u]nlike the prize award ceremony in Stockholm [for the other Nobel Prizes], it is the Chairperson of
the Nobel Committee, and not the King [of Norway]” who formally presents the Peace Prize. Tønnesson, supra.
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Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s
Receipt of the Nobel Peace Prize
Prize recipient was selected. See List of Nobel Committee Members, available at
http://nobelpeaceprize.org/en_GB/nomination_committee/members/ (last visited Dec. 4, 2009).
The other three members of the Committee were private individuals. Id.
Apart from the Storting’s role in selecting the members of the Nobel Committee, the
Norwegian government has no meaningful role in selecting the Prize recipients or financing the
Prize itself. In addition to fully funding the Prize, the Sweden-based private Nobel Foundation,
established pursuant to Alfred Nobel’s will, is responsible for the Committee’s viability and the
administration of the award. Specifically, your Office has informed us that the Committee’s
operations, including the salaries of the various Committee members and of the staff, are funded
by the Foundation and not by the Norwegian or Swedish governments. See E-mail from Virginia
R. Canter, Associate Counsel to the President, to David J. Barron, Acting Assistant Attorney
General, Office of Legal Counsel (Nov. 2, 2009, 19:11 EST) (“E-mail to Barron”) (summarizing
telephonic interview with Geir Lundestad, Secretary to the Nobel Committee and Director of the
Nobel Institute); see also Nobel Foundation Statutes § 11 (“The Board of the Foundation shall
establish financial limits on the work that the prize-awarding bodies perform in accordance with
these statutes”); id. § 6 (“A member of a Nobel Committee shall receive remuneration for his
work, in an amount to be determined by the prize-awarding body [i.e., the Nobel Committee].”).
The Committee also deliberates and maintains staff in the Nobel Institute building, which is
owned by the private Nobel Foundation rather than by the government of Sweden or Norway.
See The Nobel Institute, available at http://nobelpeaceprize.org/en_GB/institute/ (last visited
Dec. 4, 2009) (noting that Nobel Institute building is also where the recipient of the Peace Prize
is announced); see also Description of Nobel Institute Building, available at
http://nobelpeaceprize.org/en_GB/institute/nobel-building/ (last visited Dec. 4, 2009). Although
the Nobel Foundation plays a critical role in sustaining the Nobel Committee and the Peace
Prize, it is the Nobel Committee that independently selects the Prize recipients. See
Organizational Structure of the Nobel Entities, available at http://nobelprize.org/
nobelfoundation/org_structure.html (last visited Nov. 24, 2009) (“The Nobel Foundation does
not have the right or mandate to influence the nomination and selection procedures of the Nobel
Laureates.”); see also Lemmel, supra (“[T]he Prize-Awarding Institutions are not only entirely
independent of all government agencies and organizations, but also of the Nobel Foundation.”).
II.
The Emoluments Clause provides 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. Adopted unanimously at the Constitutional Convention, the
Emoluments Clause was intended to recognize the “necessity of preserving foreign Ministers &
other officers of the U.S. independent of external influence,” specifically, undue influence and
corruption by foreign governments. See 2 The Records of the Federal Convention of 1787, at
389 (Max Farrand ed., rev. ed. 1966) (notes of James Madison); see also 3 id. at 327 (“It was
thought proper, in order to exclude corruption and foreign influence, to prohibit any one in
office from receiving or holding any emoluments from foreign states.” (remarks of Governor
Randolph)); Applicability of the Emoluments Clause to Non-Government Members of ACUS,
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17 Op. O.L.C. 114, 116 (1993) (“ACUS”); President Reagan’s Ability to Receive Retirement
Benefits from the State of California, 5 Op. O.L.C. 187, 188 (1981) (discussing the background
of the ratification of the Clause).
The President surely “hold[s] an[] Office of Profit or Trust,” and the Peace Prize,
including its monetary award, is a “present” or “Emolument . . . of any kind whatever.” U.S.
Const. art I, § 9, cl. 8. The critical question, therefore, concerns the status of the institution that
makes the award. Based on the consistent historical practice of the political branches for more
than a century with respect to receipt of the Peace Prize by high federal officials, as well as our
Office’s precedents interpreting the Emoluments Clause in other contexts, we conclude that the
President in accepting the Prize would not be accepting anything from a “foreign State” within
the Clause’s meaning. Accordingly, we do not believe that the President’s acceptance of the
Peace Prize without congressional consent would violate the Emoluments Clause.
A.
None of our Office’s precedents concerning the Emoluments Clause specifically
considers the status of the Nobel Committee (or the Nobel Foundation), but there is substantial
and consistent historical practice of the political branches that is directly relevant. The President
would be far from the first government official holding an “Office of Profit or Trust” to receive
the Nobel Peace Prize. Rather, since 1906, there have been at least six federal officers who have
accepted the Prize while serving in their elected or appointed offices. The Peace Prize has been
received by two other sitting Presidents—Theodore Roosevelt and Woodrow Wilson—by a
sitting Vice President, Secretary of State, and Senator, and by a retired General of the Army, 2
with the most recent of these acceptances having occurred in 1973. Throughout this history,
we have found no indication that either the Executive or the Legislative Branch thought
congressional approval was necessary.
The first instance of the Nobel Committee awarding the Peace Prize to a sitting officer
occurred only five years after the Committee began awarding the Prize. In 1906, President
Theodore Roosevelt received the Peace Prize.3 On December 10 of that year, United States
Minister to Norway Herbert H.D. Pierce accepted the “diploma, medal, and order upon the Nobel
trustees [of the Nobel Foundation] for the amount of the prize” on Roosevelt’s behalf. See
“Emperor Dead” and Other Historic American Diplomatic Dispatches 336-37 (dispatch from
Pierce to Secretary of State Elihu Root) (Peter D. Eicher ed., 1997) (“Pierce Dispatch”). Not
only did Roosevelt accept the Peace Prize while President, he also chose as President to use the
award money (roughly $37,000) to establish a foundation for the promotion of “industrial
peace.” See Oscar S. Straus, Under Four Administrations: from Cleveland to Taft 239-40 (1922)
(noting that Roosevelt transferred the draft of the monetary award to Chief Justice Fuller in
January of 1907 to initiate efforts to establish the Foundation).
2
See Memorandum to File from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Proposed Award of Honorary British Knighthood to Retiring Military Officer (Aug. 27, 1996) (retired
military officers continue to “hold[] [an] Office of Profit or Trust” under the United States and hence remain subject
to the Emoluments Clause); see also 53 Comp. Gen. 753 (1974) (same).
3
See List of Nobel Peace Prize Laureates, available at http://nobelprize.org/nobel_prizes/peace/laureates
(last visited Nov. 19, 2009).
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Receipt of the Nobel Peace Prize
We have found no indication that the President or Congress believed that receipt of the
Prize, including its award money, required legislative approval. Although Congress passed
legislation to establish Roosevelt’s foundation, see Act of Mar. 2, 1907, ch. 2558, 34 Stat. 1241
(1907), it did so some months after he accepted the Peace Prize, and we think it clear that neither
the President nor Congress thought this law necessary to satisfy the Emoluments Clause. 4 The
bill that established the trust said nothing about consent even though Congress assuredly knew
how to express such legislative approval for Emoluments Clause purposes. For instance, the
same Congress that established the foundation at Roosevelt’s request also “authorized [Professor
Simon Newcomb, a retired Naval Officer] to accept the decoration of the order ‘Pour le Mérite,
für Wissenschaftern und Kunste,’ conferred upon him by the German Emperor,” Act of Mar. 30,
1906, ch. 1353, 34 Stat. 1713, and granted “[p]ermission . . . to [a Navy Rear-Admiral] . . . to
accept the China war medal, with Pekin clasp, tendered to him by the King of Great Britain, and
the Order of the Red Eagle, with swords, tendered to him by the Emperor of Germany,” S.J. Res.
98, 59th Cong., 34 Stat. 2825 (1907). 5
Perhaps most importantly, the statute that established the foundation to administer the
prize money that Roosevelt had accepted does not address at all Roosevelt’s receipt of the gold
medal and diploma. Yet the medal and the diploma have always constituted elements of the
Peace Prize, see Pierce Dispatch at 337 (noting receipt of Nobel medal); see also Nobel Lecture
of President Roosevelt (May 5, 1910), available at http://nobelprize.org/nobel_prizes/peace/
laureates/1906/roosevelt-lecture.html (last visited Nov. 23, 2009) (“The gold medal which
formed part of the prize I shall always keep, and I shall hand it on to my children as a precious
heirloom.”), and they constitute a “present” or “Emolument . . . of any kind whatever” within the
meaning of the Emoluments Clause. Thus, if the law establishing the trust to be funded by the
award money had been intended to provide congressional consent for President Roosevelt’s
receipt of the Prize, it would presumably have encompassed these elements of the Prize as well.
4
Consistent with this understanding of the congressional action, the bill establishing the foundation was
modeled after documents creating trusts, see Straus, supra, at 239, and not statutes conferring legislative consent
to officers’ receipt of gifts from foreign states. Further, the statute’s legislative history contains no indication that
the bill was intended to ratify Roosevelt’s acceptance of a gift from a foreign power; nor does it indicate that his
acceptance of the Prize without congressional consent was inappropriate. See S. Rep. No. 59-7283 (1907); see also
41 Cong. Rec. 4113 (1907) (“There can be no possible objection [to the bill]. It establishes trustees, who are to
receive from the President the Nobel prize for the foundation of a society for the promotion of industrial peace.”
(statement of Sen. Lodge)). Ultimately, the Foundation never expended any funds, and in July of 1917, Congress
dissolved the trust. See H.J. Res. 313, 65th Cong., 40 Stat. 899 (1918) (“Joint Resolution Providing for the
disposition of moneys represented in the Alfred Bernard Nobel peace prize, awarded in nineteen hundred and six”).
Roosevelt then distributed the Nobel Prize money, along with the interest it had accrued, to various charities in the
United States and Europe. See Straus, supra, at 241.
5
See also, e.g., J. Res. 39, 54th Cong., 29 Stat. 759 (1896) (“authoriz[ing]” President Harrison “to accept
certain medals presented to him by the Governments of Brazil and Spain during the term of his service as President
of the United States”); J. Res. 4, 42d Cong., 17 Stat. 643 (1871) (“[C]onsent of Congress is hereby given to . . . [the]
secretary of the Smithsonian Institution, to accept the title and regalia of a commander of the Royal Norwegian
Order of St. Olaf, conferred upon him for his distinguished scientific service and character by the King of Sweden
and Norway”); J. Res. 39, 38th Cong., 13 Stat. 604 (1865) (Navy Captain “authorized to accept the sword of honor
recently presented to him by the government of Great Britain”); J. Res. 14, 33d Cong., 10 Stat. 830 (1854)
(“authoriz[ing] . . . accept[ance of ] a gold medal recently presented . . . by His Majesty the King of Sweden”).
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The example more than a decade later of President Wilson also clearly reflects an
understanding by the political branches that receipt of the Peace Prize does not implicate the
Emoluments Clause. When, in December of 1920, President Wilson received the Peace Prize,
he, unlike President Roosevelt, did not seek to donate the Prize proceeds to a charitable cause or
enlist Congress’s aid in accomplishing such a charitable purpose. Instead, he simply accepted
the Prize and deposited the award money in a personal account in a Swedish bank, apparently
hoping for a favorable movement in the Kroner/dollar exchange rate. See 67 The Papers of
Woodrow Wilson 51-52 (Arthur S. Link ed., 1992) (diary of Charles Lee Swem). President
Wilson does not appear to have sought congressional approval for his acceptance, nor does it
appear that Congress thought its consent was required.
These Presidents are not, as indicated above, the only federal officers who have received
the Peace Prize. Senator Elihu Root in 1913, Vice President Charles Dawes in 1926, retired
General of the Army George Marshall in 1953, and Secretary of State Henry Kissinger in 1973
each received the Nobel Peace Prize. See List of Nobel Peace Prize Laureates, supra. As was
the case with Presidents Roosevelt and Wilson, none of these recipients, as far as we are aware,
received congressional consent prior to accepting the Prize or congressional ratification of such
receipt at any time thereafter.
This longstanding treatment of the Nobel Peace Prize is particularly significant to our
analysis because several of the Prizes were awarded when the Nobel Committee—then known
as the Nobel Committee of the Norwegian Storting—lacked some of the structural barriers to
governmental control that are present today, such as rules generally barring government
ministers and legislators from serving on the Committee. If anything, then, these prior cases
arguably would cause more reason for concern than would be present today, and yet the
historical record reveals no indication that either the Congress or the Executive believed receipt
of the Prize implicated the Emoluments Clause at all. The absence of such evidence is
particularly noteworthy since the Clause was recognized as a bar to gifts by foreign states
without congressional consent throughout this same period of time, such that the Attorney
General and this Office advised that various gifts from foreign states could not be accepted,
see, e.g., Gifts from Foreign Prince, 24 Op. Att’y Gen. 116, 118 (1902), and Congress passed
legislation specifically manifesting its consent to some gifts bestowed by foreign states on
individuals covered by the Clause. See supra n.5. To be sure, this long, unbroken practice of
high federal officials accepting the Nobel Peace Prize without congressional consent cannot
dictate the outcome of our constitutional analysis. But we do think such practice strongly
supports the conclusion that the President’s receipt of the Nobel Peace Prize would not conflict
with the Emoluments Clause, as it may fairly be said to reflect an established understanding of
what constitutes a gift from a “foreign State” that would trigger application of the Clause’s
prohibition. Cf. American Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003) (analyzing
President’s foreign affairs power under the Constitution in light of “longstanding practice”
in Executive Branch and congressional silence); Dames & Moore v. Regan, 453 U.S. 654, 686
(1981) (noting that a “‘systematic, unbroken, executive practice, long pursued to the knowledge
of the Congress and never before questioned . . . may be treated as a gloss on’” the Constitution);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J.,
concurring) (“Deeply embedded traditional ways of conducting government cannot supplant the
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Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s
Receipt of the Nobel Peace Prize
Constitution or legislation, but they give meaning to the words of a text or supply them.”);
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 315, 401 (1819) (where “the great principles of
liberty are not concerned . . . [a doubtful question,] if not put at rest by the practice of the
government, ought to receive a considerable impression from that practice”).
B.
The precedents of our Office reinforce the constitutional conclusion that the historical
practice recounted above strongly suggests. Indeed, our Office’s numerous opinions on the
Emoluments Clause have never adverted to the receipt of the Peace Prize by government
officials and certainly have never suggested that the numerous acceptances of the Prize were
contrary to the Clause. That is not surprising. Under these same opinions, it is clear that, due to
the unique organization of the Nobel Committee (including its reliance on the privately endowed
Nobel Foundation), Nobel Peace Prize recipients do not receive presents or emoluments from a
“foreign State” for purposes of the Emoluments Clause.
The precedents of the Office do establish that the Emoluments Clause reaches not only
“foreign State[s]” as such but also their instrumentalities. ACUS, 17 Op. O.L.C. at 122;
Applicability of Emoluments Clause to Employment of Government Employees by Foreign
Public Universities, 18 Op. O.L.C. 13, 18 (1994) (“Public Univ.”). Quite clearly, the Nobel
Committee is not itself a foreign state in any traditional sense. The issue, therefore, is whether
the Committee has the kind of ties to a foreign government that would make it, and by extension
the Nobel Foundation in financing the Prize, an instrumentality of a foreign state under our
precedents. Our past opinions make clear that an entity need not engage specifically in
“political, military, or diplomatic functions” to be deemed an instrumentality of a foreign state. 6
See Public Univ., 18 Op. O.L.C. at 19; see also ACUS, 17 Op. O.L.C. at 122 (“[T]he language of
the Emoluments Clause does not warrant any distinction between the various capacities in which
a foreign State may act.”). Thus, for example, we have determined that entities such as
corporations owned or controlled by a foreign government and foreign public universities may
fall within the prohibition of the Clause. ACUS, 17 Op. O.L.C. at 121-22.
To determine whether a particular case involves receipt of a present or emolument from a
foreign state, however, our Office has closely examined the particular facts at hand. Specifically,
we have sought to determine from those facts whether the entity in question is sufficiently
independent of the foreign government to which it is arguably tied—specifically with respect to
the conferral of the emolument or present at issue, e.g., hiring an employee or bestowing an
award, Public Univ., 18 Op. O.L.C. at 20—that its actions cannot be deemed to be those of that
6
Accordingly, we have explained that corporations owned or controlled by a foreign government are
presumptively foreign states under the Emoluments Clause, even though the Act of State doctrine suggests that
“when foreign governments act in their commercial capacities, they do not exercise powers peculiar to sovereigns,”
and thus are not entitled to the immunity from suit that might be available. ACUS, 17 Op. O.L.C. at 120 (“[N]othing
in the text of the Emoluments Clause limits its application solely to foreign governments acting as sovereigns.”).
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foreign state. In short, our opinions reflect a consistent focus on whether an entity’s decision
to confer a particular present or emolument is subject to governmental control or influence. 7
The factors we have considered include whether a government is the substantial source
of funding for the entity, e.g., Applicability of Emoluments Clause to Proposed Service of
Government Employee on Commission of International Historians, 11 Op. O.L.C. 89, 90 (1987)
(“International Historians”); whether a government, as opposed to a private intermediary, makes
the ultimate decision regarding the gift or emolument, 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 Trip to Indonesia (Aug. 11, 1980) (“Indonesia Op.”); and whether a government
has an active role in the management of the entity, such as through having government officials
serve on an entity’s board of directors, e.g., Public Univ., 18 Op. O.L.C. at 15. No one of these
factors has proven dispositive in our prior consideration of Emoluments Clause issues. Rather,
we have looked to them in combination to assess the status of the entity for purposes of the
Clause, keeping in mind at all times the underlying purpose that the Clause is intended to serve.
See, e.g., 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 Scientist’s Proposed Consulting Arrangement with the University
of New South Wales (May 23, 1986) (“given [foreign public university’s] functional and
operational separation and independence from the government of Australia and state political
instrumentalities . . . . [t]he answer to the Emoluments Clause question . . . must depend [on]
whether the consultancy would raise the kind of concern (viz., the potential for ‘corruption and
foreign influence’) that motivated the Framers in enacting the constitutional prohibition”).
Consistent with this analysis, we have concluded in the past that Emoluments Clause
concerns are raised where the “ultimate control” over the decision at issue—e.g., an employment
decision or a decision to bestow an award—resides with the foreign government. For instance,
an employee of the Nuclear Regulatory Commission (“NRC”) sought authorization to work for
a consulting firm that was retained by the Mexican government. Application of the Emoluments
Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158
(1982). Because we concluded that the “ultimate control, including selection of personnel,
remains with the Mexican government,” id. (“the retention of the NRC employee by the
consulting firm appears to be the principal reason for selection of the consulting firm by the
Mexican government”), we determined that the Emoluments Clause barred the arrangement.
Similarly, we concluded that an invitation to join a commission of international historians that
was established and funded entirely by the Austrian government constituted an invitation from
the Austrian government itself. International Historians, 11 Op. O.L.C. at 90.
By contrast, although we have previously opined that foreign public universities are
presumptively instrumentalities of a foreign state for the purposes the Emoluments Clause, we
determined that two NASA scientists on leave without pay could be employed by the University
7
Where a foreign state indisputably and directly confers a present or emolument, such considerations of
autonomy and control may be relevant, but not decisive. See ACUS, 17 Op. O.L.C. at 119. Here, however, the
critical issue is whether the Nobel Committee, and by extension the Nobel Foundation, is an instrumentality of a
foreign government for purposes of awarding the privately endowed Peace Prize.
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Receipt of the Nobel Peace Prize
of Victoria in British Columbia, Canada, without triggering that constitutional restraint. Public
Univ., 18 Op. O.L.C. at 13. We came to this conclusion because the evidence demonstrated that
the University acted independently of the Canadian (or the British Columbian) government when
making faculty employment decisions. Id. at 15 (“[T]he University of Victoria should not be
considered a foreign state.”). To be sure, as we acknowledged, the University was under the
formal control of the British Columbia government. Id. at 20 (noting that the government had
“ultimate” control of the University); see also id. at 15 (noting that the faculty was “constituted”
by the University’s Board of Governors, the majority of whom were appointed by the provincial
government). Nevertheless, it was critical to our analysis that the specific conduct at issue—the
University’s selection of faculty—was not made by the University “under statutory compulsion”
or pursuant to the “dictates of the government.” Id. at 20-21 (quoting McKinney v. University of
Guelph, [1990] 3 S.C. 229, 269 (Can.) (plurality op.)).
Similar considerations of autonomy informed our view that a federal officer could serve
as a consultant to Harvard University on a project funded by the government of Indonesia. See
Indonesia Op. at 5. Although the consulting services were to be rendered for the benefit of
Indonesia and the individual consultant’s expenses were to be reimbursed by Harvard from funds
paid by Indonesia, we identified no violation of the Emoluments Clause. We reached this
conclusion in significant part because, under the consulting arrangement, Harvard had the sole
discretion over the consultants it chose, and Indonesia had no veto power over those choices.
Id. (“Since . . . the foreign government neither controls nor even influences the selection and
payment of consultants, the Emoluments Clause is not implicated.”).
In light of these precedents, we believe that it is significant that the Nobel Committee’s
selection of the Peace Prize recipient is independent of the dictate or influence of the Norwegian
government. As far as we are aware, the Norwegian government has no authority to compel the
Committee to choose the Prize recipient; nor does it have any veto authority with respect to the
selection by the Committee members, who, in any event, are not appointed by a single official
to whom they are accountable, but are instead elected by the multimember Storting. See Nobel
Foundation Statutes § 1. To be sure, Norwegian government officials may submit nominations
to the Committee, but that opportunity is shared by any “[m]embers of national assemblies and
governments of states,” along with “University rectors” and “professors of social sciences,
history, philosophy, law and theology.” Nobel Peace Prize Regulations § 3. Indeed, the formal
process of nomination and selection of a Prize recipient is not guided by the government, but by
the private, Sweden-based Nobel Foundation and the Nobel Committee. 8 For example, pursuant
to the Foundation’s rules, no prize-awarding body, including the Peace Prize Committee, may
reveal the details of its deliberations “until at least 50 years have elapsed after the date on which
the decision in question was made.” Nobel Foundation Statutes § 10. We have found no
8
The Storting appears to have the limited authority only to approve “[i]nstructions concerning the election
of members of the Nobel Committee” itself. See Nobel Foundation Regulations § 9. Any other amendments to the
Committee’s rules of operation, including its award selection guidelines, are decided upon by the Committee itself,
after views are solicited from the Nobel Foundation. Id. (“Proposals for amendments to other provisions of these
regulations may be put forward by members of the Norwegian Nobel Committee or by members of the Board of
Directors of the Nobel Foundation. Before the Norwegian Nobel Committee makes a decision concerning the
proposal, it shall be submitted to the Board of Directors of the Nobel Foundation for an opinion.”).
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indication that the Norwegian government or its officials, if requesting such information, would
be exempt from this restraint on disclosure. Other aspects of the selection process, including
guidelines on nominations and supporting materials, are either provided in the private
Foundation’s statutes or delegated by the Foundation—not by the Norwegian government—
to the prize-awarding bodies, including the Peace Prize Committee. E.g., id. § 7 (“To be
considered eligible for an award, it is necessary to be nominated in writing by a person
competent to make such a nomination.”). These formal limits on the capacity of the Norwegian
government to influence, let alone control, the Committee’s decision, are consistent with the
Committee’s own repeated assertions of its independence. See Tønnesson, supra.
The Government of Norway’s financial connection to the Nobel Committee is even more
attenuated. It appears that the members of the Nobel Committee are compensated for their
services by the privately funded Nobel Foundation, see E-mail to Barron, and the precise amount
of the remuneration is set by the Nobel Committee, not the Norwegian government. See Nobel
Foundation Statutes § 6. The Peace Prize itself, including its cash award and other elements, is
funded by the Nobel Foundation, which alone is responsible for ensuring that all of the Nobel
prize-awarding bodies can accomplish their purposes and which is itself financed by private
investments and not government funding. Id. § 14 (“The Board [of the Foundation] shall
administer the property of the Foundation for the purposes of maintaining good long-term prize-
awarding capacity and safeguarding the value of the Foundation’s assets in real terms.”); see
also The Nobel Foundation’s Income Statement (2008), available at http://nobelprize.org/
nobelfoundation/incomes.html (last visited Dec. 7, 2009); Lemmel, supra (describing Nobel
Foundation’s investment strategies to ensure financial base of Nobel Prizes).
Thus, in our view, the only potentially relevant tie to the Norwegian government is that,
in accordance with Alfred Nobel’s will, the Storting elects the Nobel Committee’s five members.
Further, we are aware that, notwithstanding the rules generally barring sitting members of the
Storting from the Nobel Committee, two members of the Storting served on the Committee for
several months before leaving their parliamentary seats. However, in light of the strong basis
for the Committee’s autonomy, both as to the decision it makes and the finances upon which it
draws, we do not view the Storting’s appointment authority, or a minority of the Committee
members’ short-term overlap with parliamentary service, as having dispositive significance.
Nor has our Office done so in the past in analogous cases. In determining that an
award to a Navy scientist from the Alexander von Humboldt Foundation was from the German
government for the purposes of the Emoluments Clause, for example, we noted that the
“awards are made by a ‘Special Committee,’ on which the Federal Ministries for Foreign Affairs
and Research and Technology are represented.” See Letter for Walter T. Skallerup, Jr., General
Counsel, Department of the Navy, from Robert B. Shanks, Deputy Assistant Attorney General,
Office of Legal Counsel at 2 (Mar. 17, 1983). But we did not indicate that the presence of the
government ministers on the award committee was the decisive factor in our analysis. Instead,
we also noted that the Foundation was reestablished (because it had once been dissolved) by
the Federal Republic of Germany, specifically by its Ministry of Foreign Affairs. In addition,
we noted that the Foundation that administered the award was financed mainly through annual
payments from the West German government. See id. By contrast, the Nobel Committee is
financed by the private Nobel Foundation, and although the Norwegian government may have
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Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s
Receipt of the Nobel Peace Prize
formally established the Committee (as the “Nobel Committee of the Norwegian Storting”),
it did so pursuant to a private individual’s will, which assigned the Storting the limited role of
electing the Committee’s members, who would be charged with exercising their independent
judgments.
Likewise, we concluded that the University of British Columbia in hiring faculty was
not acting as a foreign state for the purposes of the Emoluments Clause—notwithstanding the
provincial government’s power to appoint a majority of the members of the University’s board
of governors. Public Univ., 18 Op. O.L.C. at 14, 22 (citing Harrison v. University of British
Columbia, [1990] 3 S.C. 451, 459 (Can.) (plurality op.)). We also determined that the Prince
Mahidol Foundation was not an instrumentality of the Government of Thailand for the purposes
of the Emoluments Clause, although several officials of the Thai government and the Royal
Princess of Thailand sat on the Foundation’s board. Memorandum to File from Daniel L.
Koffsky, Re: Application of the Emoluments Clause to a U.S. Government Employee Who
Performs Services for the Prince Mahidol Foundation (Nov. 19, 2002) (“Mahidol Op.”). 9 In
each case, we found countervailing indications of autonomy to be more significant. As noted
above, we concluded that the University of British Columbia’s faculty decisions, including
contract negotiations and collective bargaining, were not subject to governmental compulsion.
Public Univ., 18 Op. O.L.C. at 20-21 (noting University’s “‘legal autonomy’”). And despite the
presence of the Thai government and royalty, we determined that the decision-making process of
the Prince Mahidol Foundation’s Board evidenced “independent judgment.” Mahidol Op. at 4
(also noting that “most of the funds for the Foundation do not come from the [Thai]
government”). These same considerations concerning the exercise of independent judgment
and financial autonomy are at least as present here.
In sum, determining whether an entity is an instrumentality of a foreign government is
necessarily a fact-bound inquiry, see Application of the Emoluments Clause of the Constitution
and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982) (“Each situation must
. . . be judged on its facts.”), and the weight of the evidence in light of this Office’s consistent
precedents—and as reinforced by the substantial historical practice—demonstrates that the
awarding of the privately financed Peace Prize through the Nobel Committee does not constitute
the conferral of a present or emolument by a “foreign State” for the purposes of the Emoluments
Clause.
9
Similarly, the Supreme Court has indicated that a government’s appointment authority is not given
dispositive weight in determining whether a nominally private entity is, in fact, “what the Constitution regards as the
Government.” See Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (holding that Amtrak was a
state actor subject to the First Amendment). That the federal government appointed a majority of Amtrak’s directors
was not considered to be of controlling importance. As the Lebron Court observed, the Consolidated Rail
Corporation (“Conrail”) was held “not to be a federal instrumentality, despite the President’s power to appoint,
directly or indirectly, 8 of its 15 directors.” Id. at 399; see also Regional Rail Reorganization Act Cases, 419 U.S.
102, 152 (1974) (“Conrail is not a federal instrumentality by reason of the federal representation on its board of
directors.”).
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III.
Our reasoning regarding the Emoluments Clause is equally applicable to the Foreign
Gifts and Decorations Act. The Act provides express consent for officials to accept “gifts and
decorations” from “foreign government[s]” under certain limited circumstances not present here.
See 5 U.S.C. § 7342(b) (2006) (“An employee may not . . . accept a gift or decoration, other than
in accordance with the provisions of” the Act); see also id. § 7342(a)(1)(E) (providing that the
President is subject to the Act). Section 7342(a)(2) defines the term “foreign government” as
follows:
“foreign government” means –
(A) any unit of foreign governmental authority, including any
foreign national, State, local, and municipal government;
(B) any international or multinational organization whose
membership is composed of any unit of foreign government
described in subparagraph (A); and
(C) any agent or representative of any such unit or such
organization, while acting as such.
While we do not necessarily assume that Congress intended the meaning of “foreign
government” to be coextensive with the constitutional term “foreign State,” we have recognized
that the Act’s reference to “any unit of foreign governmental authority” is likely narrower in
scope than the Emoluments Clause. See ACUS, 17 Op. O.L.C. at 121 (recognizing that
corporations owned or controlled by foreign States are arguably not “units of foreign
governmental authority,” although they are presumptively subject to the Emoluments Clause);
cf. S. Rep. No. 95-194, at 29 (1977) (definition of “foreign government” intended to reach
“foreign governmental subdivision(s)” and “quasi-government organizations”). For the reasons
discussed in detail above, the Nobel Committee in choosing the recipients of the Peace Prize,
like the Nobel Foundation in financing the Prize, operates as a private non-governmental
organization and not as a “unit” of a foreign government. Moreover, given the Foundation’s
private nature and the facts that the Committee acts independently of any government and is
not required to include any government officials on it, see The Norwegian Nobel Committee,
available at http://nobelprize.org/prize_awarders/peace/committee.html (last visited Nov. 23,
2009) (“Although this is not a requirement, all committee members have been Norwegian
nationals.”), we conclude that neither is an “international or multinational organization” because
neither is “composed of any unit of foreign government,” let alone composed of units of more
than one foreign government. 5 U.S.C. § 7342(a)(2)(B); see also Memorandum to the General
Counsel, The Smithsonian Institution, from Daniel L. Koffsky, Acting Assistant Attorney
General, Re: Emoluments Clause and World Bank (May 24, 2001), available at
www.usdoj.gov/olc/opinions.htm (concluding that international organizations of which the
United States is a member are not generally subject to the Emoluments Clause and observing that
the Act’s coverage of international organizations was likely “motivated by policy concerns as
opposed to constitutional ones”). Nor is the Committee as a whole, or, by extension, the Nobel
Foundation in financing the Prize, an “agent or representative” of any unit of a foreign
government or any international organization for purposes of the Act. Although two members
of the Committee continued to serve in the Storting before leaving their parliamentary seats,
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Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s
Receipt of the Nobel Peace Prize
we do not believe this limited tie between the Government of Norway and the Committee,
affecting a minority of the Committee’s members, transformed the Nobel Committee into an
agent or representative of the Norwegian government. Id. § 7342(a)(2)(C). The countervailing
indications of autonomy described above support that conclusion. Consequently, the Foreign
Gifts and Decorations Act poses no bar to the President’s receipt of the Peace Prize.
IV.
For the reasons given above, we conclude that neither the Emoluments Clause nor the
Foreign Gifts and Decorations Act prohibits the President from receiving the Nobel Peace Prize
without congressional consent.
Please let us know if we may be of further assistance.
/s/
DAVID J. BARRON
Acting Assistant Attorney General
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