Foreign Gifts: Hillary's Legal Or Illegal?

Hillary Clinton's time as secretary of state was marked by allegations of impropriety regarding gifts from foreign leaders. While serving in this role, Clinton received lavish gifts, including gold jewellery worth half a million dollars from the King of Saudi Arabia and jewellery worth $58,000 from the Queen of Brunei. These gifts raised questions about whether Clinton had violated the Emoluments Clause in the US Constitution, which prohibits government employees from accepting presents from foreign governments without congressional consent. The Clinton Foundation, with which Clinton was associated, also accepted millions in donations from foreign governments during her tenure, further fuelling accusations of impropriety and potential influence-buying. However, the legal experts disagree on whether Clinton's actions constituted a violation, and no charges were ever brought against her.

The Emoluments Clause

> No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The Constitution also contains a "domestic emoluments clause" (Article II, Section 1, Paragraph 7), which prohibits the president from receiving any "Emolument" from the federal government or the states beyond "a Compensation" for their "Services" as chief executive.

The plain purpose of the foreign emoluments clause was to ensure that the country's leaders would not be improperly influenced by gift-giving, which was a common and generally corrupt practice among European rulers and diplomats at the time. An early version of the clause was modelled on a rule adopted by the Dutch Republic in 1651 that forbade its foreign ministers from receiving "any presents, directly or indirectly, in any manner or way whatever". This was incorporated into the Articles of Confederation (1781) as Article VI, Paragraph I:

> Nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

The final text of the clause included a provision that permitted the acceptance of foreign gifts with the explicit approval of Congress. This may have been influenced by the experience of Benjamin Franklin, who, as the American minister to France, was presented with a bejewelled snuff box by Louis XVI and asked Congress for permission to keep it, which was granted.

Although there has been some debate regarding the exact meaning and scope of the foreign emoluments clause, nearly all scholars agree that it applies broadly to all federal officeholders, appointed or elected, up to and including the president. This interpretation is supported by the historical record of the Constitution's drafting, as well as by the past practice of presidential administrations and Congresses. For example, Edmund Jennings Randolph, one of the Framers, remarked at the Virginia ratifying convention that the clause protected against the danger of "the President receiving Emoluments from foreign powers", even asserting that a president who violates the clause "may be impeached".

The foreign emoluments clause also broadly encompasses any kind of profit, benefit, advantage, or service, not merely gifts of money or valuable objects. Thus, it would prohibit a federal officeholder from receiving special consideration in business transactions with a foreign state that gave the officeholder a competitive advantage over other businesses. Arguably, the clause would forbid even competitively fair transactions with foreign states, because the profit accruing to the officeholder would fall within the ordinary meaning of "emolument", and because such arrangements would threaten the kind of improper influence that the clause was intended to prevent.

In 2016, Trump supporter Newt Gingrich claimed that Hillary Clinton broke the law by accepting foreign gifts and donations to the Clinton Foundation while she was Secretary of State. However, this claim has been rated as "Mostly False" by PolitiFact, as there is no proven evidence that Clinton personally solicited or received such gifts, nor did she have an official role in the foundation while she was Secretary of State. While the Emoluments Clause does ban U.S. government employees from accepting presents or emoluments from foreign governments, it doesn't say anything about spouses or "foreigners" generally, as Gingrich claimed.

Foreign Gifts and Decorations Act

The Foreign Gifts and Decorations Act (FGDA) establishes policies and procedures pertaining to the acceptance, use, and disposition of gifts or decorations from foreign governments. Under the FGDA, federal government employees may not accept gifts from foreign governments or international organizations except as permitted under the Act. This includes the employee's spouse and dependents.

The Act defines a "foreign government" as any unit of foreign governmental authority, including any foreign national, state, local, or municipal government, as well as any international or multinational organization whose membership is composed of any unit of foreign government.

The FGDA sets a limit on the value of gifts that federal employees may accept from foreign governments or international organizations. As of January 1, 2023, employees may not accept gifts exceeding $480 in value. This limit is revised approximately every three years. Gifts of minimal value, which is currently defined as $480 or less, are allowed under the Act.

There are certain exceptions to the gift value limit. For example, employees may accept gifts of more than minimal value if they are in the nature of an educational scholarship or medical treatment. Employees may also accept gifts of more than minimal value if refusing the gift would likely cause offense or embarrassment or adversely affect the foreign relations of the United States. In such cases, the gift is deemed to have been accepted on behalf of the United States and becomes the property of the United States. Employees are required to deposit these gifts with their employing agency for disposal or official use within 60 days of acceptance.

The FGDA also sets out procedures for reporting and disposing of gifts received from foreign governments. Employees are required to file statements with their employing agency regarding gifts of more than minimal value within 60 days of acceptance. The employing agency is responsible for compiling and publishing an annual listing of all such statements in the Federal Register.

The Act also includes enforcement provisions. Suspected violations of the Act should be reported to the appropriate General Counsel and the Inspector General. The Inspector General is responsible for investigating suspected violations and referring matters to the Attorney General for civil action if it is determined that an employee has knowingly solicited or accepted a gift from a foreign government in violation of the Act.

US law allows gifts in limited circumstances

The exchange of gifts between heads of state is an important part of modern-day international relations and dates back to ancient civilizations. In the US, the acceptance of foreign gifts by government officials was banned in 1787, but every president since George Washington has received gifts of state.

While the US Constitution prohibits anyone in the US government from receiving a personal gift from a foreign head of state without the consent of Congress, US law does allow gifts in limited circumstances. Federal employees may accept gifts valued at <$480 or less, which is considered the "minimal value". This value is revised approximately every three years. Gifts of more than minimal value may be accepted on behalf of the agency. The Federal Government may also accept travel and related expenses from a foreign government in connection with travel by an employee as official duty.

In addition, gifts may be accepted if refusing them would "cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States". In such cases, the gift becomes the property of the United States and is typically displayed in a presidential library museum collection.

Gifts are universal symbols in the language of diplomacy

Gifts are an important part of diplomacy and have been used to strengthen international relations for centuries. They are often used to "welcome, honour and cultivate beneficial diplomatic relationships" and can showcase a country's unique culture, people, and heritage. This tradition of gift-giving between heads of state is a long-established practice that continues to represent peaceful diplomatic relations.

The earliest record of a diplomatic exchange of this kind features engraved stone vessels from Egypt given to their Hittite neighbours. Later, gifts between European ambassadors and the Ottoman Empire, while mostly involving textiles, also included clocks and timepieces. In the 1950s, the Chinese government began sending pandas to their communist allies and other foreign governments, in a process that became known as panda diplomacy. The United Kingdom, the United States, Malaysia, and Taiwan were among the beneficiaries of this practice.

In the modern era, diplomatic gifts can take many forms, from woven straw baskets to precious gems. They are often exchanged during ceremonial events such as toasts, banquets, speeches, and formal greetings. Gifts of state are chosen for their ability to exhibit pride in a unique culture and people, showcasing traditions of fine arts, crafts, and local craftsmanship. They may also display wealth through precious stones, metals, fine textiles, and apparel.

In the United States, federal law requires executive branch officials to disclose any gift from a foreign government valued at $480 or more. While the gifts themselves are not considered bribery, U.S. officials must pay the fair market value if they wish to keep them for personal use. Gifts from foreign leaders are allowed under U.S. law in very limited circumstances, mainly to avoid causing embarrassment to the donor and the U.S. government.

Regarding the question of whether Hillary Clinton broke the law by accepting gifts from foreign leaders, the answer is ambiguous. While the Clinton Foundation did accept millions of dollars in donations from foreign governments while Clinton was Secretary of State, there is no proven evidence that she personally solicited or received such gifts. She never received a salary from the foundation nor held an official role in the organization during her time as Secretary of State. Experts disagree on whether Clinton's association with the foundation constitutes a violation of the Emoluments Clause in the U.S. Constitution.

Gifts are often accepted to avoid embarrassment

The exchange of gifts between heads of state is a centuries-old tradition and an important part of modern-day international relations. It is a universal symbol in the language of diplomacy, a token of international cooperation and friendship.

In 1787, the US broke with this tradition and banned the acceptance of foreign gifts by government officials. However, refusing gifts from foreign leaders proved impossible; it was, at best, impolite and, at worst, a stinging offence. As a result, every US President since George Washington has received gifts of state.

Today, federal law requires executive branch officials to disclose any gift from a foreign government valued at $480 or more. It is not considered bribery as a president can keep items to be displayed at their "presidential centre". However, to keep gifts for personal use, officials must pay the fair market value.

The Emoluments Clause in the US Constitution bans government employees from accepting presents or emoluments (salary or compensation) from foreign governments. However, it does not mention spouses or "foreigners" in general. There is also a corresponding law to the Emoluments Clause, the Foreign Gifts and Decorations Act, which states that federal government employees and their spouses can face a civil penalty if they accept gifts from foreign governments.

In the case of Hillary Clinton, there is no proven evidence that she personally solicited or received gifts from foreign governments while she was secretary of state. She has never received a salary from the Clinton Foundation nor did she have an official role in the organisation while she was secretary of state. While the Clinton Foundation did accept millions of dollars in donations from foreign governments, the money was intended for charitable work.

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