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Could the Nobel Peace Prize Violate the Illegal Gratuities Statute?

           At the Volokh Conspiracy, David Kopel discusses whether President Obama needs congressional consent to accept the Nobel Peace Prize, including a check in the amount of more than $1 million (which Obama has said will be donated to charity).  Kopel concludes that the matter is governed by the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342, which provides the congressional consent needed to accept a “present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” under Article I, § 9, cl. 8 of the Constitution.  Under Kopel’s analysis, Obama may accept the prize without further congressional consent, but only if he signs the check over the government, as the statute requires. 

            Kopel’s analysis seems correct, but only if one assumes that the Nobel Peace Prize Committee constitutes a “foreign government” as defined by the Act.  This is by no means obvious because, while the members of the committee are appointed by the Norwegian Parliament, their acts in awarding the prize would seem to be essentially private in nature and are conducted on behalf of the Alfred Nobel Foundation, rather than on behalf of the Norwegian Government.   

            If, in fact, the Nobel Peace Prize Committee is not a foreign government, however, the legal situation gets even messier.  18 U.S.C. § 201 (c), generally known as the illegal gratuities statute, provides that it is a crime if someone: 

            (1) otherwise than as provided by law for the proper discharge of official duty—  

(A) directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official; or  

(B) being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person. 

It might be argued that the prize was not given to the President “for or because of any official act,” but only because of the general pro-peace tone of his campaign and/or presidency. This would be a factual question, but I believe that members of the committee have suggested that the prize was given, in part, on account of particular acts taken by Obama as president, including steps to de-nuclearize Europe. In any event, for purposes of this analysis, I will assume that there is evidence to show that the prize was given, in part, for or because of an official act.

This may not be a legal problem for Obama, however, because federal regulations issued by the Office of Government Ethics provide for a number of circumstances under which a federal employee may accept a gift and explicitly declare that such a gift “shall not constitute an illegal gratuity otherwise prohibited by 18 U.S.C. 201(c)(1)(B).”

There are at least two regulatory exceptions that would seem to help Obama here. First, 5 C.F.R. § 2635.204 (d) permits employees to accept gifts “if such gifts are a bona fide award or incident to a bona fide award that is given for meritorious public service or achievement by a person who does not have interests that may be substantially affected by the performance or nonperformance of the employee’s official duties or by an association or other organization the majority of whose members do not have such interests.” If the award is worth more than $200, acceptance requires written authorization from an agency ethics official. The regulations then give the following example: “Based on a determination by an agency ethics official that the prize meets the criteria set for this in § 2635.204 (d)(1), an employee of the National Institutes of Health may accept the Nobel Prize for Medicine, including the cash award which accompanies the prize, even though the prize was conferred on the basis of laboratory work performed at NIH.”

This provision would seem to authorize Obama’s acceptance of the prize, assuming that he obtains the required written authorization. I suppose one could argue, as Kopel does, that the Nobel Peace Prize Committee has an “interest” in influencing U.S. foreign policy, but I doubt that this is the type of interest referred to by the regulation.

Moreover, a second regulatory exception, 5 C.F.R. § 2635.204 (j), provides that “[b]ecause of considerations relating to the conduct of their offices, including those of protocol and etiquette, the President or Vice President may accept any gift on his own behalf or on behalf of any family member, provided that such acceptance does § 2635.202 (c)(1) or (2), 18 U.S.C. 201 (b) or 201 (c) (3), or the Constitution of the United States.” Since the illegal gratuities provision is not mentioned in paragraph (j), this paragraph evidently purports to exempt the President and Vice President from the illegal gratuities statute altogether.

Of course, one might wonder where the Office of Government Ethics got the authority to exempt anyone from a federal criminal law. The Supreme Court has wondered the same thing. See United States v. Sun-Diamond Growers, 526 U.S. 398 (1999) (“We are unaware of any law empowering OGE to decriminalize acts prohibited by Title 18 of the United States Code.”) Nevertheless, these exceptions are recognized by the executive branch and for all practical purposes qualify the prohibitions of the illegal gratuities statute.

It is worth noting, however, that the regulations only purport to exempt certain gifts from the prohibition against receipt of illegal gratuities under 18 U.S.C. § 201(c)(1)(B). They do not address the giving of illegal gratuities under 18 U.S.C. § 201(c)(1)(A). Thus, one could still argue that the Nobel Peace Prize Committee, by offering Obama a gift for or because of an official act, violated the illegal gratuities statute.

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