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An Overview of How Military Retirees are Subject to the Emoluments Clause

Michael Flynn has been accused of violating the Emoluments Clause of the Constitution. What is this clause and how does it apply to retired military personnel?

As many of you have heard, LTG Michael Flynn (Retired) has been accused of violating, among other things, the Emoluments Clause (Clause) of the Constitution.

Most people until recently had never heard of the Clause which applies to all federal employees and bars them from working for or receiving anything from a foreign government which is broadly defined. Even fewer people knew that retired uniformed service personnel (RUSP) are subject to it too after leaving active duty for the rest of their lives.

What is the Emoluments Clause?

The Emoluments Clause is comprised of 49 words in Article I of the United States Constitution:

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 of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

According to the Washington Post, it was added due to concerns from the 1700s that American ambassadors who were overseas might be corrupted by gifts from rich European powers.

It has never been the subject of a Supreme Court hearing which leaves some doubt as to what it ultimately means and how it might apply to modern-day life.

Application to Retired Uniformed Service Personnel (RUSP)

There are over 1.9 million RUSP and there are probably at least a few thousand that are unaware they are in violation of the Clause since the definition of what is a foreign government entity is not always clear.

For example, being a mechanic, pilot, or desk clerk for Qatar Airline, which is owned by the Qatar government, needs “prior approval” under current federal law from two federal agencies – the Secretary of the service one is retired from and the Secretary of State. Even working at the Qatar Airline’s ticket counter at Dulles Airport requires such approval.

The penalty for non-compliance with the prior approval requirement is the loss of one’s military retirement until one gets approval and there are no retroactive approvals. Thus, a RUSP retiree who belatedly seeks and gets approval today after working for Qatar Airlines at its ticket counter for several years without prior approval would have to wait several years before he or she gets another military retirement check.

Wayne L. 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.