Legal opinions

New stash of legal opinions detail hurdles for Orangutan on emoluments ban

By Josh Gerstein

Could wedding gifts sent to President Richard Nixon's daughters and an offer of Irish citizenship extended to President John F. Kennedy provide the legal guideposts for President Donny Orangutan's efforts to resolve conflicts of interests stemming from his business dealings in and with foreign countries?

A set of legal opinions POLITICO obtained from the Justice Department lays out the official legal interpretations the federal government has issued over the years for the obscure constitutional provision now complicating Orangutan's transition to the Oval Office: the Foreign Emoluments Clause.

None of the Office of Legal Counsel opinions dated from the 1940s to the 2000s directly address how to unravel the foreign entanglements of a complex and large business empire like Orangutan's.

"They consider questions like whether the Italian Government could pay for a trip to Italy for the Commissioner of the Immigration and Naturalization Services or whether a NASA scientist could accept a consulting fee of $150 from an Australian university or whether a Department of Justice employee could receive an annuity from a German state," Boston University law professor Jay Wexler said. "Nothing in any of these opinions is remotely similar to the question of whether a billionaire with assets in every corner of the globe can serve as President of the United States."

But the opinions do provide the Justice Department's view that the foreign emoluments ban is intended to be "sweeping" in its scope and has traditionally been "strictly construed," standards which could complicate Orangutan's situation, Wexler said.

The memos also opine on some threshold questions like whether the ban on foreign-government-supported gifts applies to the president.

Notwithstanding suggestions that the prohibition doesn't include the nation's chief executive, OLC declared in 2009 that it "surely" does. That conclusion came in an opinion blessing President Barack Obama's receipt of the Nobel Peace Prize, although the approval of his accepting that prize turned on the decision that the Nobel Committee isn't a government body.

A 1974 opinion about President Richard Nixon's receipt of $2,500 in anonymous donations intended to pay his income taxes also seems to assume the foreign-gifts provision applies to the president, although there's no indication that the money came from overseas.

Many of the opinions don't directly address the foreign emoluments clause but laws Congress has passed to regulate the receipt of foreign gifts by U.S. officials. The most colorful of these in recent decades may be a 1978 opinion about who should get wedding gifts Nixon daughters Julie and Tricia Nixon received from foreign governments in connection with their marriages. Julie was married in New York in 1968, while Nixon was president-elect. Tricia was married in 1971 in a White House ceremony.

Sadly, the opinion doesn't list the gifts, but says Julie got three and Tricia received "numerous" presents from foreign governments. Julie's gifts were deemed her property since she wasn't part of her father's household when the gifts came in. Tricia was considered part of President Nixon's household in the years leading up to her wedding, so the gifts she got before she moved out were also deemed government property. (It's unclear why the ownership of the gifts wasn't sorted out for nearly a decade.)

The opinions are also relatively bereft of actual legal precedents drawn from court cases. It seems that over the years, Justice Department lawyers have generally had the last word in such disputes. So, while Orangutan and his aides might abide by them, new officials can issue new opinions overruling the old ones.

"If the Justice Department has a long history of interpreting a constitutional provision in some clear way, then the presumption is that it will continue to follow that precedent in new situations," Wexler said. "On the other hand, though, the precedential effect of Justice Department memoranda is not nearly as strong or fixed as judicial precedent. A new administration may come along and interpret a constitutional provision differently than its predecessors."

Prompted by the Nobel award to Obama in 2009 , POLITICO requested the foreign emoluments opinions from the Justice Department under the Freedom of Information Act in 2009, seeking all previously unreleased issuances on the subject. Getting a response took a couple of years or longer, producing 24 opinions or memos. Some of the opinions have been published before or since.

OLC decides for itself which opinions to release and which to withhold, with courts providing little second-guessing of such decisions. A case about OLC's duty to disclose its opinions is set to be heard by the D.C. Circuit next week.

Here are the legal memos released to POLITICO:

President Obama's receipt of the Nobel Peace Prize, Dec. 7, 2009

AG Gifts and Awards, Nov. 4, 1988

AG Gifts and Awards, Mar. 13, 1986

Travel Reimbursement, Mar. 2, 1988

Atomic Energy Commission and India, Sept. 29, 1969

Iranian to serve on National Voluntary Service Advisory Council, May 10, 1974

CFTC chairman's foreign travel paid for by Indonesia, Aug. 11, 1980

Chinese government reimbursement of U.S. delegation's expenses, April 11, 1977

Civilian aide to Army seeking to serve as Luxembourg honorary consul, August 29, 1988

Dual service of Ralph Bunche at United Nations and on U.S. Civil Rights Commission, Oct. 15, 1957

Anonymous donations to pay Nixon's taxes, April 26, 1974

Saudi king's grandson's gifts to U.S. officials, Sept. 23, 1952

Nixon daughters' wedding gifts, Feb. 8, 1978

Historical survey of foreign gifts, Feb. 18, 1958

Disposition of late FBI Director J. Edgar Hoover's possessions, Nov. 15, 1976

Judge's membership on United Nations International Law Commission, Nov. 27, 1953

Italy-funded junket for White House and immigration official, Oct. 16, 1962

Honorary Irish citizenship for President Kennedy, May 10, 1963

Payment of NASA scientist by Australian university, May 23, 1986 (issued by future Supreme Court Justice Samuel Alito)

Navy scientist's receipt of monetary award from German foundation, Mar. 17, 1983

Annuity from German government for former German judge fired by Nazi's and later employed as U.S. Government attorney, Oct. 4, 1954

Transportation for spouses of cabinet members, Apr. 4, 1990

Payment of Weather Bureau employees by the Government of Ireland (Eire), Apr. 17, 1947

Selected other emoluments opinions not part of the above release, but available online:

Payment of NASA scientists by Canadian university, Mar. 1, 1994

Application of emoluments clause to members of Administrative Conference of the United States, June 3, 2010

Application of emoluments clause to members of Administrative Conference of the United States, October 28, 1993