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6
attorneys from the Emoluments Clause. The retired Marine Corps lawyers were required to
obtain consent under 37 U.S.C. § 908 if they wanted to represent the foreign government.
IV. What is a “Foreign State?
Except as authorized by Congress, the Emoluments Clause prohibits covered personnel
from accepting a position with, or an emolument from, any king, prince, or “foreign state.” A
foreign state includes any organization that is owned or operated by a foreign government,
including federal, regional and local level governments. Both OLC and the Comptroller General
have opined that the term “foreign state” in the Emoluments Clause applies to both national
governments and to sub-national governmental units.
21
Thus, foreign governmental entities,
such as commercial entities owned or controlled by a foreign government and foreign public
universities controlled by a foreign government, can be considered instrumentalities of foreign
states for purposes of the Emoluments Clause.
Foreign Corporation
In general, business corporations owned or controlled by foreign governments are
considered part of a foreign state for purposes of the Emoluments Clause.
22
By contrast, the
Emoluments Clause does not apply to privately-owned foreign corporations.
OLC has articulated several factors to consider when assessing whether a foreign entity
should be deemed a foreign state for purposes of the Emoluments Clause.
23
These factors include: (1) whether a foreign government has an active role in the management of
the decisionmaking entity; (2) whether a foreign government, as opposed to a private
21
See Memorandum Opinion For Assistant General Counsel for the Department of Commerce
from Daniel Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, Applicability
of the Emoluments Clause and the Foreign Gifts and Decorations Act to the Goteborg Award for
Sustainable Development (“Goteborg Award”) 34 Op. O.L.C. at 3 (Oct. 6, 2010); Foreign
Public Universities, 18 Op. O.L.C. 13, 19 (noting that “foreign state” should include any political
governing entity within that foreign state)(March 1, 1994); Major James D. Dunn, B-251084,
1993 WL 426335, at *3 (Comp. Gen. Oct. 12, 1993).
22
Applicability of the Emoluments Clause to Non-Government Members of the American
Conference of the United States (ACUS), 17 Op. O.L.C. 114, at 121 (1993).
23
See Goteborg Award, 34 Op. O.L.C. at 3 (October 6, 2010) (neither the Emoluments Clause
nor the Foreign Gifts and Decorations Act barred an employee of NOAA from accepting the
2010 Goteborg Award on Sustainable Development because the award was not from a king,
prince, or foreign state).
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