As a result of the 2016 U.S. Presidential election, the Emoluments Clause (U.S. Constitution: Article I, Section 9, clause 8) has been in the headlines often. What many military personnel may not know is that this clause has a direct bearing on them—even after military retirement.
The Emoluments Clause is a restriction that prohibits a person “holding any office of profit or trust” in the federal government from accepting any gift, emolument, office, or title of any kind from any king, prince, or foreign state without the consent of Congress. This provision may affect foreign employment of retired uniformed service personnel, both officer and enlisted.
As interpreted, this clause prohibits receipt of consulting fees, gifts, travel expenses, honoraria, or salary by current federal employees—including active-duty military and retired military personnel, regular and reserve—unless congressional consent is obtained.
When Consent is Needed
Employment compensation and gifts from foreign educational, medical, or commercial institutions that are owned, operated, or controlled by a foreign government generally qualify as prohibited emoluments because these entities are viewed as an extension of the foreign government. The location where you will be working does not matter. For example, working for most foreign airlines, even if one works in the United States, requires prior approval since most are at least 50 percent government owned. A case in point would be working for Qatar Airways at their ticket counter at the Dulles Airport as the airline is 100 percent owned by the Qatar government.
Retired military personnel also should be aware that the Emoluments Clause may apply to monies received through their employment with a domestic partnership or a limited liability company—such as a law firm or consulting business—even if the foreign government is not one of the retiree’s personal clients. The Office of the Legal Counsel has concluded that accepting a share of partnership profits that is derived from the partnership’s representation of a foreign government is considered an emolument, even if the retiree did not provide direct services to the foreign government client.
The comptroller general has determined that the government may pursue debt collection when an employee accepts an emolument from a foreign government without the required approval. Specifically, it has ruled that DoD may suspend retirement pay up to the amount of the foreign salary (or other emoluments) received, if the foreign salary is less than one’s retirement pay.
By contrast, when the compensation earned during the period of unauthorized employment with a foreign state exceeds the amount of retired pay accrued during the same period, only the retired pay received during the period of the violation may be collected, not the full amount of pay received from the foreign government. Collection usually is done by deducting what is owed from a person’s retirement which often has the effect of stopping the receipt of retirement for many months.
Military officers and enlisted personnel must be aware of the Emoluments Clause and ensure they do not run afoul of it.
Who Consents and When
Congress, for the most part, has delegated its consent authority. Prior to the passage of the laws listed below, the only way to obtain consent was to get one’s Congressman to introduce a “Private Bill” to Congress to enact into law. This remains an option, but it is difficult.
37 U.S. Code § 908: A person subject to the Emoluments Clause must obtain advance approval from the relevant service secretary (Army, Air Force, Navy, Marine Corps, and Homeland Security for the Coast Guard) and the Secretary of State before accepting consulting fees, gifts, travel expenses, honoraria, or salary from a foreign government. The physical location you work from is irrelevant.
5 U.S. Code § 7342: The Foreign Gifts and Decorations Act outlines consent to a narrow class of foreign gifts such as certain free meals offered by a foreign government to U.S. government officials and military personnel.
10 U.S. Code § 1060: Military service of retired members with newly democratic nations delegates consent of Congress. This 1993 law was passed so retired uniformed personnel could help the former Warsaw Pact countries and the new countries that were created when the Soviet Union dissolved in 1991. It requires approval by both the retiree’s service secretary and Secretary of State.
The vast majority of both 37 U.S. Code § 908 and 10 U.S. Code § 1060 approval applications are from retired military personnel and thus the U.S. Department of Defense (DoD) is the recognized expert in this area.
An excellent white paper explaining these matters in more detail, “Application of Emoluments Clause to DoD Civilian Employees and Military Personnel (March 2013),” was written by Jeffrey Green, senior attorney, Standards of Conduct Office (SOCO), Office of General Counsel, DoD.
How To Get Approval
The Navy does not have instructions on how to proceed in this area. The Air Force has guidance for seeking advance approval; see Air Force Retiree Services Afterburner Spring-Summer 2017 issue and Air Force Instruction 36-2913 .
As of May 2018, the applications for Navy personnel are addressed to:
Chief of Naval Personnel
Office of Legal Counsel (N00L)
Naval Support Facility Arlington
701 South Courthouse Road, Room 4T035
Arlington, VA 22204
Telephone: (703) 604-0443 (When one calls this number, one will be provided with a point of contact and an email address to submit the application package to which will expedite the process.)
Marine Corps:
Judge Advocate Division (JCA)
Headquarters, U.S. Marine Corps
3000 Marine Corps Pentagon (Room 4D558)
Washington, DC 20350-3000
Telephone: 703-614-2510 (When one calls this number, one will be provided with a point of contact and an email address to submit the application package to which will expedite the process.)
Coast Guard:
Commandant, U.S. Coast Guard
ATTN: Director of Reserve and Military Personnel (CG-13)
2307 Martin Luther King Jr Ave. SE, Stop 7907
Washington, D.C. 20593-7907
202-475-5451 or email at [email protected]. Contact before submitting to get additional guidance on the approval process (normally 6-8 weeks) and a sample letter and forms.
To get help with the paperwork, visit the nearest legal assistance office.
Congress could eliminate this issue for retirees by passing a law saying the Emoluments Clause does not apply to them or say they are giving them blanket Congressional approval.
Commander Johnson served on active duty for 20 years, four as an Army legal clerk and 16 in the Navy’s Judge Advocate General’s Corps.