Payment of Legal Fees in Connection With a

Cabinet Member’s Confirmation Hearings

Legal expenses incurred in connection with a Cabinet member’s Senate confirmation 

hearings would be an appropriate subject of payment from funds authorized under the 

Presidential Transition Act, and may also, consistent with that Act, be paid from 

private sources.

Payment of legal fees incurred in connection with the confirmation process by a private 

foundation would not be considered to supplement a Cabinet member’s salary in 

violation of 18 U.S.C. § 209, since the purpose and value of the services rendered were 

directed primarily to the government.

May 13, 1981

MEMORANDUM OPINION

Our views have been requested on the propriety under 18 U.S.C. 

§ 209 of a proposed payment by a private foundation1 of legal fees 

incurred in connection with the Senate confirmation hearings of a 

member of the Cabinet. We understand that the lawyer was retained 

after consultations between the office of the President-elect and a 

Member of Congress, and that the lawyer’s fee is not and was never 

intended to be the personal obligation of the nominee. We also understand that the lawyer’s services were rendered before and during the 

nominee’s confirmation hearings and that all services were rendered 

before the current Administration took office.

Our conclusions can be summarized as follows:

(1) The payment of legal fees incurred in connection with a 

confirmation hearing serves a legitimate governmental function cognizable under the Presidential Transition Act.

(2) The availability of public funding under the Transition Act 

does not preclude additional transition funding from private 

sources.

(3) Since the purpose and value of these legal services were 

directed primarily to the government, payment of the legal fee 

by a private party should not be considered a supplementation 

of the employee’s salary for purposes of 18 U.S.C. §209.

A cco rd in g to its bylaws, the foundation is a nonprofit corporation established in the District of 

Columbia “to facilitate an orderly transfer of the power of the executive branch of the United States 

government from the Administration of the incumbent President to the Administration of the President-elect . . .

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Before addressing the propriety of this proposed payment under 

§ 209, we will examine it in light of the Presidential Transition Act of 

1963, Pub. L. No. 88-277, 78 Stat. 153, as amended by Pub. L. No. 94- 

499, 90 Stat. 2380, October 14, 1976 (reprinted in note following 3 

U.S.C. § 102). This Act promotes the orderly transfer of executive 

power during a presidential transition by authorizing the Administrator 

of the General Services Administration (GSA) to provide to a President-elect necessary services and facilities for use prior to January 20 in 

connection with preparations for the assumption of official duties. The 

GSA Administrator is specifically authorized, by § 3(a)(3) of the Transition Act, to pay expenses for the services of consultants,2 and we see no 

reason why a legal consultant of this type could not have been paid 

with government funds pursuant to the Transition Act.3

The availability of Transition Act funds for a particular purpose does 

not necessarily preclude the funding of that same function from a 

private source. Although the Comptroller General has issued a considerable body of opinions generally repudiating the unauthorized augmentation of agency appropriations, see, e.g., 46 Comp. Gen. 689 (1967), we 

do not think that those opinions are controlling in this situation. Neither 

the President-elect nor his transition staff are government employees,4 

and the Transition Act does not create a federal transition agency. 

Instead, it provides for the appropriation of money to a federal agency 

(GSA), to be disbursed according to certain criteria. There is no indication in the Transition Act or its legislative history that demonstrates a 

congressional intent to limit a President-elect’s transition activities to 

those funded by the GSA transition appropriation.5 In fact, when the 

Act was amended in 1976 to increase the amount of the authorization 

for transition funds, the House report quoted extensively from a GAO 

study that showed that in the past only a small portion of the actual 

transition expense was paid from the U.S. Treasury. In recommending 

that the appropriation be increased,6 the GAO report stated:

2 The Transition Act provides that consultants shall be paid pursuant to the Administrative Expenses Act of 1946, as amended (S U.S.C. § 3109). Among other things, this Act places a ceiling on the 

salary rate paid to consultants This salary limitation clearly would apply if the lawyer’s fees were paid 

by GSA.

3 Had the same legal services been required after the Administration took office, they might have 

been provided by government lawyers or by private lawyers retained at government expense. Although the use of government funds or personnel to assist nominees in the confirmation process would 

depend upon the language and purpose of relevant appropriation statutes, as a general matter, such 

expenditures have been considered necessary government expenditures

4See § 36(a)(2) of the Transition Act supra. O f course, federal employees who are “detailed” to

assist the President-elect in transition do retain their status as federal employees.

&There is little doubt that Congress did intend to limit federal transition expenditures to the amount 

authorized and appropriated to the GSA for this purpose. See, e.g., S. Rep. No. 1322, 94th C o n g , 1st 

sess. 2 (1976).

6 It should be noted that even the increased appropriation would not have covered the full 

expenditures of the immediately preceding transition as reported by GAO

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It is our belief, however, that if the Presidential Transition 

Act is to function as intended, the Federal assistance must 

cover a substantial part of the Transition expenses.

Quoted in H. Rep. No. 1442, 94th Cong., 1st Sess. 4 (1976) (emphasis 

added). It is clear from the House report that Congress was aware of 

the custom of augmenting the transition appropriation with private 

funds. Since neither the Act nor its legislative history indicate an intent 

to eliminate this practice, and in light of the language adopted from the 

GAO report, we conclude that the public funding of transition was not 

intended to preclude private funding of transition activities.

We now turn to the question of whether the payment of this particular transition expense by a private group would violate 18 U.S.C. § 209. 

As you know, § 209 prohibits the payment or receipt from any source 

other than the government of any salary, contribution to or 

supplementation of salary, as compensation for the services of an officer 

or employee of the Executive Branch. The term salary is not defined 

by the statute.

One source of guidance on the meaning of “salary” in § 209 is the 

administrative interpretations given to the term by the various federal 

agencies. This administration case law tends to give fairly broad meaning to the term “salary,” 7 but it does not supply an answer or a ready 

formula to apply in this case. In the final analysis, the determination 

whether a particular fringe benefit constitutes “salary” is a matter of 

judgment based on the full circumstances and intent of the parties. See

41 Op. Att’y Gen. 217 (1955).

In this case, it is our judgment that the proposed payment would not 

constitute a supplementation of the employee’s salary. In reaching this 

conclusion we note that the foundation’s primary purpose to assist the 

President-elect is evident from its very charter; that this purpose is a 

legitimate function for a private foundation;8 and that the foundation is 

not, and has never been, in an employment relationship with the 

member of the Cabinet. Furthermore, we are convinced that any personal benefit to the employee from these legal services was incidental 

and secondary to the intended benefit conferred upon the Presidentelect and his Administration. In addition, if the government had provided these same legal services (see text accompanying footnote 3) it is 

doubtful that the value of the services would be considered part of the 

employee’s salary.

1See discussion in B. Manning, Federal Conflict of Interest Laws 160-163 (1964), reviewing administrative decisions that define salary to include tuition fees, travel and professional expenses, and various 

honoraria See also 18 U.S C. § 209(e), which creates a narrow exception to the administrative decision 

that § 209 bars the payment of moving expenses by a former employer.

8 As discussed previously, the foundation’s purpose to assist the transition is not at odds with the 

Transition Act of 1963 or the principle of fixed appropriations. We also note that in Advisory Opinion 

1980-97 the Federal Election Commission (FEC) concluded that the establishment of a Presidential 

Transition Trust to pay for pre-election transition activities was lawful under the Federal Election 

Campaign Act o f 1971 and FEC regulations.

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There is a line of Comptroller General decisions holding that an 

officer or employee has on his shoulders “the duty of qualifying himself 

for the performance of his official duties.” 22 Comp. Gen. 460, 461 

(1942). See also 51 Comp. Gen. 701 (1972) (disallowing the government’s payment of bar admission fees) and 31 Comp. Gen. 465 (1952), 

22 Comp. Gen. 243 (1942) (both disallowing government payment for 

pre-employment medical examinations). In our view, legal fees incurred 

in connection with the confirmation process are not analogous to these 

other personal costs of job qualification. As discussed earlier, the confirmation process involves overriding governmental interests of a magnitude not present in the decisions cited above. In addition, the cited 

Comptroller General decisions involve expenditures that benefit the 

employee in a personal capacity, while the legal services at issue will 

benefit the employee primarily in an official capacity.

For reasons stated above, we conclude that the proposed payment of 

legal fees by a private foundation would not violate 18 U.S.C §209.

T h e o d o r e B. O lso n

Assistant Attorney General

Office o f Legal Counsel

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