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Which came first: Vietnam or envoy?

Published Sep. 16, 2005

The Clinton administration thought it had a perfect candidate for the new post of ambassador to Vietnam: a congressman and onetime prisoner of war whose record would help him pass through the needle's eye of Sen. Jesse Helms' Senate Foreign Relations Committee.

But the confirmation prospects of Rep. Pete Peterson, a Florida Democrat from Marianna, have suffered a peculiar setback since he was nominated in late May. The problem is not Helms, but the Constitution.

With hearings on his nomination set to begin today, staff members on the Foreign Relations Committee suggested last week that Peterson's appointment may violate the so-called emoluments clause of the Constitution, which prevents sitting legislators from profiting from their own votes.

Under Article 1, Section 6, the Constitution forbids a legislator, "during the term for which he was elected," from accepting appointment "to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time."

According to Senate aides, the "emoluments" question is not the main issue, since ambassadors have not had a pay raise lately. The problem is whether the office of ambassador to Vietnam in Hanoi is a new one, created when the United States recognized Vietnam last year, or whether it is merely a continuation of the ambassadorship to the former South Vietnam.

Administration lawyers, despite a long weekend of cogitating, aren't quite sure what to do. White House officials say it may simply be easier to postpone Peterson's nomination until after the November election and a new Congress is in session _ presuming President Clinton is re-elected, that is, to renew the nomination. Peterson has announced his retirement from Congress in any event.

Suzanne F. Farmer, Peterson's chief-of-staff, said he is "trepidatious" about the outcome. "Our view has been that this was not created by Congress," she said. "This isn't a brand-new country, and we had an ambassador there before."

But the lawyers aren't so sure. A legislator brought up the issue with the Senate committee, which thought it was a constitutional issue it could not ignore. It queried the State Department, which put its legal department to work.