Presidential Certification Regarding the Provision of Documents to the House of Representatives Under the Mexican

Debt Disclosure Act of 1995

The Mexican Debt Disclosure Act of 1995 requires that, before certain assistance is extended to Mexico, the President must certify that he has provided the House of Representatives with the documents described in House Resolution 80. The President submitted a certification that indicated 

that the executive branch had not provided to the House certain documents because it would be 

inconsistent with the public interest to do so. The Act is best interpreted as incorporating an exception for those documents as to which disclosure would not be in the public interest. Therefore, 

the President’s certification was a legally sufficient formulation of the certification required by 

the Act.

June 28, 1996

M e m o r a n d u m O p i n i o n f o r t h e A t t o r n e y G e n e r a l

This memorandum sets forth the analysis underlying our conclusion that the 

President’s April 14, 1995, certification regarding the use of the Exchange Stabilization Fund to assist Mexico was a legally sufficient formulation of the certification required by the Mexican Debt Disclosure Act of 1995, Pub. L. No. 104-

6, tit. IV, 109 Stat. 73,89.

I.

A.

Mexico suffered severe economic problems in 1994, leading to a thirty-two percent devaluation of the peso during the month of December. In January 1995, 

Congress debated legislative proposals to provide up to $40 billion in emergency 

assistance to Mexico to stabilize the peso. When it became clear that the legislative 

process would not work quickly enough to avert a liquidity crisis, the President 

announced on January 31, 1995, his intention to use the Treasury Department’s 

Exchange Stabilization Fund (“ ESF” ) to provide up to $20 billion of loans and 

credits as part of a financial support package designed to prevent the further destabilization of the Mexican peso and to halt the withdrawal of capital out of Mexico.1

* By statute, the ESF is to be used consistent with United States obligations with respect to the International 

Monetary Fund ("IM F ” ). See 31 U.S.C. §5302. Article rv o f the IMF Articles of Agreement requires the United 

States to "collaborate with the [IMF] and other members to assure orderly exchange arrangements and to promote 

a stable system of exchange rates.” Second Amendment to the Articles of Agreement of the International Monetary 

Fund, approved Apr. 30, 1976, art. IV, §1, 29 U.S.T. 2203, 2208, 15 I.L.M. 499, 549. Members are to fulfill 

their obligation ‘‘by fostering orderly underlying economic and financial conditions and a monetary system that 

does not tend to produce erratic disruptions.” Id. The ESF " is under the exclusive control of the Secretary” of

Continued

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The President made his announcement in a joint statement issued with the congressional leadership, including Senate Majority Leader Robert Dole, Senate Minority Leader Thomas Daschle, House Speaker Newt Gingrich, and House Minority Leader Richard Gephardt, all o f whom expressed the view that the use of 

the ESF in connection with the support package was both lawful and necessary:

We agree that, in order to ensure orderly exchange arrangements 

and a stable system of exchange rates, the United States should 

immediately use the Exchange Stabilization Fund (ESF) to provide 

appropriate financial assistance for Mexico. We further agree that 

under Title 31 of the United States Code, Section 5302, the President has full authority to provide this assistance. . . .

We must act now in order to protect American jobs, prevent an 

increase in the flow of illegal immigrants across our borders, ensure 

stability in this hemisphere, and encourage reform in emerging markets around the world.

This is an important undertaking, and we believe that the risks 

of inaction vastly exceed any risks associated with this action. We 

fully support this effort, and we will work to ensure that its purposes are met.2

On February 21, 1995, the United States entered into a series of agreements 

with Mexico by which the United States pledged to provide up to $20 billion 

in the form of currency swaps and securities guarantees (“ U.S.-Mexico Agreements” ). Under the terms of the agreements as announced by Secretary Rubin, 

$10 billion would be made available through the ESF in stages between February

21 and the end of June, 1995, as Mexico met agreed-upon conditions. Under the 

same terms and conditions, another $10 billion would become available beginning 

in July 1995, to be provided in stages as needed.3

B.

On March 1, 1995, the House of Representatives adopted House Resolution 

80 (“ Resolution 80” or “ the Resolution” ), a resolution of inquiry “ requesting

the Treasury, who may use the ESF as he “ considers necessary,” “ [s]ubject to approval by the President.” 31

U .S .C § 5302(a)(2).

2 Statement with Congressional Leaders on Financial Assistance to Mexico, 1 Pub. Papers of William J. Clinton 

130(1995).

3 Statement of Treasury Secretary Robert E. Rubin, Mexico Agreement Signing Ceremony (Feb. 21, 1995).

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Presidential Certification Regarding the Provision o f Documents to the House o f Representatives

Under the Mexican Debt Disclosure Act o f 1995

information from the President concerning actions taken to strengthen the Mexican 

peso and stabilize the economy of Mexico.” 4 The Resolution began by stating:

Resolved, that the President is hereby requested to provide to the 

House of Representatives (consistent with the rules of such House), 

not later than 14 days after the adoption of this resolution, the following documents in the possession of the executive branch, if not 

inconsistent with the public interest.5

This initial paragraph of Resolution 80 was followed by 28 numbered paragraphs, 

each identifying substantive categories of requested documents.

In presenting the Resolution for consideration by the House, Representative 

James Leach, Chairman of the House Committee on Banking and Financial Services (“ Banking Committee” ), stated that:

It is . . .the obligation of Congress and the Committee of jurisdiction in particular to review how Mexico got into this dilemma and 

what obligations the U.S. Government has undertaken to resolve 

the crisis. It is also the obligation of this Congress to assess why 

and how Mexico lost its way and whether the U.S. government 

failed to recommend or insist that Mexican officials follow a less 

bumpy road.

In this regard, let me stress this resolution of inquiry is of a factfinding nature. It looks to the basis of the policy without having 

the effect of changing administration commitments. Nothing, in 

other words, in this approach jeopardizes the stabilization package 

itself.. . .

There also should be no doubt that if the U.S. Government had 

failed to act, an international economic crisis could have been precipitated which would have had extraordinary job loss consequences in America and around the world.6

The Banking Committee also presented to the House a report on Resolution 

80. The report contained a paragraph setting forth language almost identical to 

the portion of Representative Leach’s floor statement concerning the obligation 

of Congress to review this matter, and it then stated:

4 141 Cong. Rec. 6408 (1995) (quoting heading in Congressional Record).

3 Id.

6 Id. at 6410.

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It is in the context of the paragraph above that the request for 

documents contained in this resolution should be interpreted. But 

the scope of this request for documents should not be construed 

to include drafts of documents provided in final form, nor any notes 

o f any individual.

The Committee further notes that under the rules and precedents 

of the House, requests for ongoing reports concerning actions taken 

through the ESF and international financial institutions are outside 

the scope of this resolution of inquiry.7

The Administration promptly began to search for documents responsive to the 

Resolution. On March 21, Abner Mikva, Counsel to the President, met with Representative Leach and Representative Christopher Cox to discuss the status of the 

Administration’s response, and then reported on that status in a letter of the same 

day to Speaker Gingrich. Judge Mikva’s letter explained that the extreme breadth 

and scope of the document requests and the need to review documents to determine whether it was consistent with the public interest to produce them to the 

entire House had made it impossible to meet the fourteen day deadline set forth 

in the Resolution. The letter indicated that the Administration would attempt to 

complete its response to the Resolution by May 15, and that in the meantime 

the Treasury Department would immediately make available to the House documents that had been provided to the Senate,8 the Administration would produce 

other documents on a “ rolling production” basis, and the Administration would 

work with the Banking Committee “ to reach any appropriate agreements and accommodations with respect to responsive documents that are classified or otherwise subject to applicable privileges.” 9

The Treasury Department made available to the House the next day, March 

22, the documents that had previously been made available to the Senate, and 

it and the other agencies proceeded to implement the rest of the response plan 

outlined by Judge Mikva. However, the Administration subsequently was informed 

by representatives of the House that the May 15 target date for completion of 

the response to Resolution 80 was unacceptable and that completion by April 7 

was desired so that House staff could review the documents during the threeweek congressional recess scheduled to begin that day. Responding to this statement of the House’s needs, representatives of the Treasury and Justice Depart7 H.R. Rep. No. 104-53, at 5 (1995).

8 The Treasury Department had been providing documents to the Senate in response to two requests received 

earlier in the year. See Letter for the Honorable Robert Rubin, Secretary of the Treasury, from Senators Connie 

Mack, Trent Lott, Spencer Abraham, and Bob Dole (Jan. 26, 1995); Letter for the Honorable Robert Rubin, Secretary 

o f the Treasury, from Senator Alfonse D ’Amato, Chairman, Committee on Banking, Housing, and Urban Affairs 

(Feb. 17, 1995).

9 Letter for the Honorable Newt Gingrich, Speaker of the House of Representatives, from Abner J. Mikva, Counsel 

to the President at 2 (Mar. 21, 1995). A copy o f this letter was sent to Representatives Leach and Cox.

256
ments met with Banking Committee staff on April 3 and informed them that the 

Administration expected that it would be able to make all responsive documents 

available by April 7, except for those confidential documents for which by that 

date it would have requested a dialogue concerning possible accommodations.

The Administration representatives also informed Banking Committee staff on 

April 3 of the procedures that were being followed in an effort to complete the 

response to Resolution 80 within a time frame that would satisfy the House’s 

needs. These procedures were confirmed in an April 5 letter from the Treasury 

Department to the Banking Committee, and subsequently restated in letters during 

the week of April 10 from the various responding agencies informing the House 

that they had completed their responses. These procedures delimited the scope 

of the search for responsive documents. In accordance with the Banking Committee Report on Resolution 80, certain drafts and notes were not considered responsive. Since there was no beginning date specified in the Resolution, and 

searching for archived documents in warehouses and elsewhere would have taken 

far more time than the House’s needs would allow, agencies generally searched 

only for recent files (for example, Treasury searched back to January 1, 1994). 

Only the agencies that were likely to have worked on the Mexico matter or to 

have responsive files were asked to conduct searches. Finally, given the extraordinary difficulty, time, and expense involved in searching computer backups and 

other computer records, only hard-copy files were searched. The Banking Committee staff raised no objection to these procedures when they were identified 

at the April 3 meeting, and no objection was conveyed by any representative of 

the House at any time before the Administration completed its response on April 

14.

As the Administration was working to respond to Resolution 80, a bill concerning the use of the ESF was introduced as an amendment to the Emergency 

Supplemental Appropriations and Rescissions Act, H.R. 889, 104th Cong. (1995). 

As introduced in the Senate on March 16, H.R. 889 required the President to 

provide periodic reports to Congress regarding the current state of the Mexican 

economy, measures taken by the Mexican government to safeguard the stability 

of the economy, and any U.S. government assistance provided to Mexico. In addition, it required that, before extending additional assistance to Mexico, the President certify to the appropriate congressional committees that:

(1) there is no projected cost to the United States from the proposed 

loan, credit, guarantee, or currency swap;

(2) all loans, credits, guarantees, and currency swaps are adequately 

collateralized to ensure that United States funds will be repaid;

Presidential Certification Regarding the Provision o f Documents to the House o f Representatives

Under the Mexican Debt Disclosure A ct o f 1995

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(3) The Government o f Mexico has undertaken effective efforts to 

establish an independent central bank or an independent currency 

control mechanism; and

(4) Mexico has in effect a significant economic reform effort.10

H.R. 889, providing $3.04 billion in new funding for the Department of Defense, 

was considered by a House and Senate Conference Committee in closed session. 

When it emerged from conference on April 6, the bill contained an additional 

requirement that the President certify that:

(5) the President has provided the documents described in paragraphs (1) through (28) of House Resolution 80, adopted March

1, 1995.11

The bill also contained the following new subsection:

(b) TREATMENT OF CLASSIFIED OR PRIVILEGED MATERIAL— For purposes o f the certification required by subsection 

(a)(5), the President shall specify, in the case of any document that 

is classified or subject to applicable privileges, that, while such document may not have been produced to the House of Representatives, in lieu thereof it has been produced to specified Members 

of Congress or their designees by mutual agreement among the 

President, the Speaker o f the House, and the chairmen and ranking 

members of the Committee on Banking and Financial Services, the 

Committee on International Relations, and the Permanent Select 

Committee on Intelligence of the House.12

During the limited post-conference floor debate on the portion of the bill dealing 

with the ESF, Representative Marcy Kaptur, who had introduced Resolution 80, 

began by complaining that the documents requested by the Resolution had not 

yet been turned over to the House. She characterized the bill as follows:

Essentially what it says is that no money, loan credit guarantee or 

arrangement through the [ESF] or the Federal Reserve can be extended unless the President of the United States has provided us 

with every single document that we have asked for in our resolution 

of inquiry.13

10141 Cong. Rec. 8200 (1995).

' ' H.R. Conf. Rep. No. 104-101, at 19 (1995).

l2Id. There were also minor revisions made to the wording of the original four certification requirements.

13 141 Cong. Rec. 10,672 (1995).

258
Representative Bob Livingston followed by noting that “ [w]e have compelled the 

White House to provide documentation which has not been forthcoming to date 

despite a resolution passed by this House on March 1.” 14 Representative Sonny 

Callahan concluded the debate:

The agreement we have reached with the Senate requires the President to provide the information on the Mexican debt crisis called 

for in House Resolution 80. . . . The bill language does not cut 

off aid to Mexico. It does, however, require the President to provide 

the information requested in House Resolution 80, prior to the extension of additional aid to Mexico.15

The bill was passed by both the House and Senate on April 6 as part of the 

Emergency Supplemental Appropriations and Rescissions for the Department of 

Defense to Preserve and Enhance Military Readiness Act of 1995, Pub. L. No. 

104-6, 109 Stat. 73. Section 406 of title IV, the Mexican Debt Disclosure Act 

of 1995, imposed the presidential certification requirement. On April 7, Congress 

left for recess, to return on May 1.

As Congress was completing its work on the Mexican Debt Disclosure Act, 

the White House and the Justice Department were informed by the Treasury Department that additional assistance for Mexico pursuant to the terms of the U .S.- 

Mexico Agreements was due to be provided the week of April 17, and that, due 

to market exigencies, the disbursement could not be delayed. Accordingly, the 

Administration proceeded to complete its response to Resolution 80 and the Mexican Debt Disclosure Act by April 14. All of the agencies that had conducted 

document searches in response to the Resolution sent letters to the Speaker of 

the House during the week of April 10, advising that they had completed their 

searches and had made available to the entire House all documents except those 

for which it would be inconsistent with the public interest to provide to the entire 

House. The only documents withheld under the public interest exception were: 

(1) documents withheld by the White House reflecting confidential communications between the President and foreign leaders; (2) documents withheld by the 

White House revealing White House deliberations; and (3) Central Intelligence 

Agency documents withheld by the CIA that constituted daily briefings for the 

President or records of meetings at the National Security Council or with senior 

White House staff.16

Presidential Certification Regarding the Provision o f Documents to the House o f Representatives

' Under the Mexican Debt Disclosure Act o f 1995

■</</.

>5/d. at 10,674.

16 See Letter for the Honorable Newt Gingrich, Speaker of the House of Representatives, from Abner J. Mikva, 

Counsel to the President (Apr. 14, 1995), Letter for the Honorable Newt Gingrich, Speaker o f the House of Represent* 

atives, from Leo Hazlewood, Executive Director, Central Intelligence Agency (Apr. 11, 1995).

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On April 14 the President issued a certification in the form of a Memorandum 

to the Secretary of the Treasury published in the Federal Register.17 In relevant 

part, the President certified that:

The Executive Branch has provided the documents requested by 

House Resolution 80 adopted March 1, 1995, and described in paragraphs (1) through (28) of that Resolution. All documents identified 

as responsive to the Resolution have been provided to the entire 

House of Representatives. Pursuant to the terms of the Resolution, 

the Executive Branch has not provided those documents as to which 

the Executive Branch has informed the House that it would be inconsistent with the public interest to provide the documents to the 

House. Pending arrangements for safekeeping of classified material 

in a House facility, classified documents have been provided to the 

House by making them available at Executive Branch facilities.

Each agency, including the Federal Reserve Board, has advised the 

House of the procedures employed by that agency to provide the 

documents requested by House Resolution 80.18

In issuing the certification regarding the production of documents, the President 

relied on advice from the Counsel to the President and this Office. By letter to 

the Counsel to the President on April 14, we advised that the draft presidential 

certification submitted to this Office for review was a legally sufficient formulation of the certification required by section 406(a)(5). We advised that the certification requirement was properly interpreted as incorporating the “ public interest” 

exception provided by Resolution 80. We further advised the White House that 

making classified documents available to House members at executive branch facilities pending arrangements for safekeeping in a House facility satisfied the requirement that the documents be “ provided” to the House.19

A currency swap was executed according to the terms of the U.S.-Mexico 

Agreements on April 19.20

After Congress returned from its recess, the Administration and House Members 

and staff undertook to negotiate an agreement regarding the small number of 

White House documents withheld under the public interest exception. An agreement was ultimately reached.

17 3 C.F.R. 472(1996).

,s ld. at 472-73.

19 Letter for the Honorable Abner J. Mikva, Counsel to the President, from Walter Dellinger, Assistant Attorney 

General, O ffice o f Legal Counsel (Apr. 14, 1995) (“ April 14 Letter” ).

20 Additional currency swaps were executed on May 19 and July 5, 1995.

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II.

As we stated in our April 14 Letter, the President’s certification regarding the 

production of certain documents in connection with the use of the ESF was legally 

sufficient. Subsequently, however, five Republican House Committee Chairs questioned our interpretation of the Act.21 Those Members relied on a memorandum 

from the General Counsel of the House of Representatives.22 In view of the Members’ objections, we take this opportunity to set forth in greater detail the basis 

for our advice to the President on April 14.

The essence of the argument presented in the House Counsel Memorandum 

is that section 406(a)(5) of the Act incorporates only the terms of paragraphs 1- 

28 of House Resolution 80 and, thus, does not include an exception for those 

documents that it would not be in the public interest to disclose. This interpretation 

is not the better reading of the statutory text and is refuted by the relevant legislative history, by traditional principles of statutory construction, and by long-accepted constitutional principles.

A.

The fifth certification requirement states that, as a condition of extending further 

financial assistance to Mexico, the President must certify that he “ has provided 

the documents described in paragraphs (1) through (28) of House Resolution 80, 

adopted March 1, 1995.” House Counsel argues that section 406(a)(5) incorporates only paragraphs 1-28, and not the public interest exception and other language contained in the initial paragraph. However, as we stated in our April 14 

Letter, “ [although the statute cites only to the numbered paragraphs of House 

Resolution 80, it must be read as also incorporating the initial, unnumbered paragraph of the Resolution.” 23 Our conclusion was compelled by the following considerations.

1. It is necessary to read section 406(a)(5) as incorporating the initial, unnumbered paragraph of the Resolution because that paragraph, and only that paragraph, 

makes clear that the President is to make available all responsive documents “ in 

the possession of the executive branch” as a whole. House Counsel states that 

such an incorporation is unnecessary because any other reading of the statute

21 Letter for the Honorable William J. Clinton, President of the United States, from Rep. Larry Combest, Chairman, 

Permanent Select Committee on Intelligence; Rep. Benjamin A. Gilman, Chairman, International Relations Committee, Rep. Henry J. Hyde, Chairman, Judiciary Committee, Rep. James Leach, Chairman, Banking and Financial 

Services Committee; Rep. Bob Livingston, Chairman, Appropriations Committee (June 28, 1995) (“ Members’ Letter").

22 Memorandum for the Honorable Newt Gingrich, Speaker of the House of Representatives, from Cheryl A. Lau, 

General Counsel, Office of the Clerk, House of Representatives, and Barbara K. Bracher, Principal Assistant and 

Solicitor (May 30,1995) (“ House Counsel Memorandum” ).

23 April 14 letter at 2.

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Under the Mexican Debt Disclosure Act o f 1995

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would be “ plainly ludicrous.” 24 However, House Counsel mistakenly identifies 

the only alternative interpretation as a requirement that the President certify that 

he had produced any responsive document “ in existence anywhere.” 25 House 

Counsel overlooks the fact that only by reading section 406 in light of the initial 

paragraph of the Resolution can one determine that the documents named in the 

certification requirement were not limited to White House documents alone. House 

Counsel’s interpretation would render meaningless the decision of the House 

Banking Committee to modify the Resolution to include the reference to the executive branch.26 Thus, House Counsel is wrong in viewing section 406(a)(5) as 

in itself “ clearly and unambiguously identify[ing] the ‘universe of documents’ 

subject to the President’s certification.” 27

2. It is necessary to refer to the initial paragraph of Resolution 80 to know 

to whom the documents were to be provided. Although section 406(b) refers to 

documents that have not been produced to the House, this reference assumes a 

prior instruction that the documents were to be delivered to that body. Again, 

this information is not inconsequential; it makes clear that (subject to the exception 

in subsection (b)) the documents were to be provided to the full House, rather 

than to certain House committees or to both houses of Congress.

3. It is necessary to go beyond the four comers of paragraphs 1-28 of Resolution 

80 in order reasonably to limit the scope of the obligation imposed by the certification requirement. Without such limitations it would have been impossible to 

satisfy the requirement quickly enough to meet the needs of the House, and, moreover, not in time to provide the needed assistance to Mexico. For example, section 

406(a)(5) does not define the universe of documents in terms of the time period 

covered by the document request. Thus, without resorting to certain understandings extrinsic to the numbered paragraphs, section 406(a)(5) would require 

the Administration to locate and produce documents created from the beginning 

of the federal government’s recordkeeping. For certain of the document requests, 

this would not have been difficult. For others— e.g., “ any document concerning 

the condition of the Mexican economy” — this would have been impossible to 

do in a timely manner. The House had not objected when the Administration 

had indicated in responding to the Resolution that to meet the House’s time schedule it was generally limiting its search to recent files.

24 House Counsel Memorandum at 6.

«/</. a t6 n .7 .

26 The initial paragraph originally read as follows:

Resolved, That the President is hereby requested to provide to the House of Representatives, not later 

than 14 days after the adoption of this resolution, the following documents.

41 Cong. Rec. 6408 (1995). When it was reported to the full House by the Banking Committee, the paragraph 

had teen amended to read:

That the President is hereby requested to provide to the House of Representatives (consistent with the 

rules of such House), not later than 14 days after the adoption of this resolution, the following documents 

in the possession o f the executive brancht if not inconsistent with the public interest:

Id. at 6409 (emphasis added).

27 House Counsel M emorandum at 5.

262
4. If going outside the twenty-eight paragraphs were precluded and the certification requirement were to be construed in such a way as to make it impossible 

to satisfy within any realistic time frame, then section 406(a)(5) would operate 

as a deliberate termination of the Mexico assistance program. However, there is 

no hint in the limited legislative history that this was what Congress accomplished 

or intended.28 This is not surprising given that if Congress did so, it would be 

compelling the President to fail to honor a commitment he had made, pursuant 

to statutory authority, to a foreign sovereign. It would be extraordinary for Congress to impose such a requirement on the President without any debate or consideration.

5. There is scant legislative history available to shed light on section 406(a)(5). 

What does exist supports the interpretation that section 406(a)(5) was intended 

to require the President to certify that he had provided the set of documents sought 

by Resolution 80 in its entirety, which did not seek those documents that in the 

President’s judgment it would be contrary to the public interest to disclose. The 

supporters of section 406(a)(5) identified the section’s scope and purpose in terms 

of obtaining the documents sought by Resolution 80.

Representative Kaptur described the bill as follows: “ Essentially what it says 

is that no money, loan credit guarantee or arrangement through the [ESF] or the 

Federal Reserve can be extended unless the President of the United States has 

provided us with every single document that we have asked fo r in our resolution

o f inquiry." 29 Representative Livingston stated: “ We have compelled the White 

House to provide documentation which has not been forthcoming to date despite 

a resolution passed by this House on March l.” 30 Representative Callahan concluded the debate: “ The agreement we have reached with the Senate requires 

the President to provide the information on the Mexican debt crisis called fo r

in House Resolution 80.” 31

These statements contradict House Counsel’s assertion that this Office’s construction of the Act and its legislative history is “ untenable.” Indeed, the House 

Counsel Memorandum itself notes that “ [t]hese new provisions were designed 

to resolve the document dispute by making the continuation of the President’s 

Mexican aid program contingent upon the production of the documents sought

by the precatory Resolution o f Inquiry and the oversight committee.” 32

Presidential Certification Regarding the Provision o f Documents to the House o f Representatives

Under the Mexican Debt Disclosure Act o f 1995

28 Indeed, Representative Kaptur, the sponsor of Resolution 80, stated during the floor debate on section 406 

that the provision got the House to 44second base” in terms of serious oversight of the expenditure of funds. She 

had said when introducing the Resolution that she had been seeking a “ home run” of an actual House vote on 

the assistance program, but since the House leadership blocked that, she had settled for the “ single” represented 

by the Resolution's request for documents. 141 Cong. Rec. at 10,672. The clear implication of her statement, of 

course, is that the vote on section 406 was not a vote on terminating the assistance program. See also id. at 10,674 

(statement of Rep. Callahan) (“ The bill language does not cut off aid to M exico.” ).

29141 Cong. Rec. at 10,672 (emphasis added).

30 M.

31 Id. at 10,674 (emphasis added).

32 House Counsel Memorandum at 9 (emphasis added).

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6. According to House Counsel, instead of merely requiring the President to 

comply with Resolution 80 before providing additional assistance to Mexico, section 406 actually expanded the scope of the documents being sought by the House 

by requiring the inclusion of documents that, in the President’s judgment, it would 

not be in the public interest to provide. Nothing in the text or legislative history 

of the statute supports such a conclusion. The text of section 406 defines the 

documents at issue by reference to Resolution 80 without any indication of an 

intent to go beyond the requirements of the Resolution. Indeed, the reference in 

section 406(b) to documents that “ may not have been produced to the House 

of Representatives” reflects the existence of authority to withhold documents from 

the House. However, in the view of House Counsel, although the House had authorized the President to protect the public interest in complying with its request, 

the Congress withdrew that authorization sub silentio. We find such a conclusion 

implausible.

Additionally, the legislative history of section 406 fails to reveal any intent or 

even interest in expanding the scope of the documents sought by Resolution 80. 

Instead, as we noted above, in all of the relevant legislative history, section 406 

is described as merely enforcing the existing request, and not as expanding the 

request by deleting authority to protect the public interest. It would be remarkable 

for such a critical change to go unremarked in the legislative history.

7. Finally, as discussed more fully below, it was necessary to construe the statute 

to incorporate the initial paragraph of Resolution 80 because any other reading 

would fail to preserve the President’s constitutional authority and responsibility 

to preserve the absolute confidentiality of documents the disclosure of which 

would be contrary to the public interest.33 Section 406(b) concerns the “ treatment 

of classified or privileged material.” Under House Counsel’s reading of section 

406(b), all such material, if not provided to the full House, would have to “ be 

produced to specified Members of Congress or their designees.” 34 In other words, 

House Counsel would interpret section 406 to require the President either to dishonor the United States’ commitment to Mexico, thereby posing a threat that Mexico would default and jeopardize important U.S. interests, or to divulge all documents, even highly sensitive documents reflecting diplomatic negotiations, to at 

least some Members of Congress as a condition of aid to Mexico. Such an interpretation creates serious doubts about the statute’s constitutionality.

A paramount rule of statutory construction thus stands as an obstacle to House 

Counsel’s interpretation. As the Supreme Court has repeatedly cautioned, “ [w]hen 

the validity of an act of Congress is drawn in question, and even if a serious 

doubt of constitutionality is raised, it is a cardinal principle that this Court will 

first ascertain whether a construction of the statute is fairly possible by which

33 See United States v. Nixon, 418 U.S. 683 (1974); Memorandum for C. Boyden Gray, Counsel to the President, 

from J. Michael Luttig, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Congressional

Access to Presidential Communications (Dec. 21, 1989).

34 House Counsel Memorandum at 7.

264
the question may be avoided.” 35 Absent clear evidence of Congress’s contrary 

intent, a court will adopt a reasonable construction of a statute to avoid reaching 

a serious constitutional problem.36 The practice of the executive branch is and 

should be the same. As just discussed, there was no such clear evidence of contrary congressional intent.

B.

In summary, we believe our construction of section 406 is correct, and we reject 

the alternative put forward by House Counsel. The fundamental premise of House 

Counsel’s reading is that paragraphs 1-28 of House Resolution 80 should be interpreted without recourse to the initial paragraph of the Resolution. As we have 

shown, however, this premise is erroneous. In order to give a plausible reading 

to section 406, it is necessary to go outside the four comers of paragraphs 1- 

28. It is clear that the initial paragraph of House Resolution 80— in which the 

House itself set forth its understanding of its request but which the House Counsel 

treats as superfluous — is an appropriate source of clarification. The admittedly 

scanty legislative history of section 406 confirms what would have seemed obvious in any case, that certification requirement five was intended to obtain executive branch compliance with House Resolution 80, and not to broaden the scope 

of the House’s request. At the same time, the legislative history is devoid of any 

suggestion that Congress intended for section 406 to present the President with 

a choice between violating the President’s own obligations to the Constitution 

or failing to honor a commitment to a foreign sovereign and placing important 

U.S. interests at risk. Finally, our interpretation of section 406, unlike the alternative, provides a reasonable way to give effect to the statutory language while 

avoiding the creation of a serious question about the constitutionality of the section. We now turn to explain more fully the constitutional issues.

III.

Were House Counsel correct in defining the scope of the document production 

needed to satisfy that requirement, then section 406 would be an invalid intrusion 

into the President’s constitutional authority. According to House Counsel, section 

406

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35Crowell v. Benson, 285 U.S. 22, 62 (1932); see also United States v. X-CitemerU Video, Inc., 513 U.S. 64,

73 (1994) (<4[W]e do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution 

as construed by this Court.” ).

26 Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988) 

(44[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court 

will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.’*); Public Citizen v. Department of Justice, 491 U.S 440, 466 (1989) (The Supreme Court is ‘4loath to conclude 

that Congress intended to press ahead into dangerous constitutional thickets in the absence o f firm evidence that

it courted those perils.” ).

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is not a document request, but a statement of the conditions under 

which the Administration’s financial assistance to Mexico may proceed. It sets forth conditions for the exercise of executive authority.

The President may choose not to supply the documents identified 

in the Act. But then the President may not exercise the authority 

for which the production of documents is the condition precedent.37

While it is true that section 406 is not in itself a request for documents, it specifically refers in terms to House Resolution 80, which was a document request, and 

it requires the President, as a condition of furnishing further financial assistance 

to Mexico, to certify that he has provided certain documents.

Broad as the spending power of the legislative branch undoubtedly is, it is clear 

that Congress may not deploy it to accomplish unconstitutional ends.38 Thus, as 

this Office has repeatedly affirmed, and as we discuss more fully below, Congress 

may not use the spending power to infringe on the President’s constitutional authority. In particular, “ Congress may not use its power over appropriation of public funds ‘ “ to attach conditions to Executive Branch appropriations requiring the 

President to relinquish his constitutional discretion in foreign affairs.” ’ ” Issues

Raised by Provisions Directing Issuance o f Official or Diplomatic Passports, 16 

Op. O.L.C. 18, 28 (1992) (Asst. Att’y Gen. Flanigan) (quoting Issues Raised by

Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 42 n.3 (1990) (Asst. Att’y 

Gen. Barr), (quoting Constitutionality o f Proposed Statutory Provision Requiring

P rior Congressional Notification fo r Certain CIA Covert Actions, 13 Op. O.L.C. 

258, 261 (1989) (Asst. Att’y Gen. Barr))). Moreover, “ the conduct of affairs committed exclusively to the President by the Constitution must be carefully insulated 

from improper congressional interference in the guise of ‘oversight’ activities.. . . 

[W]hile Congress unquestionably possesses the power to make decisions as to 

the appropriation of public funds, it may not attach conditions to Executive Branch 

appropriations that require the President to relinquish any of his constitutional 

discretion in foreign affairs.” The President’s Compliance with the “Timely Noti37 House Counsel M emorandum at 4-5.

39See, e.g., United States v. Klein, 80 U.S. (13 Wall.) 128 (1872) (appropriations act unconstitutionally intruded 

on President’s pardon power); United States v. Lovett, 328 U.S. 303, 316 (1946) (Congress may not employ its 

appropriations power to impose bill of attainder); cf. Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 

583, 594 (1926) (state legislature cannot affix unconstitutional condition to a privilege that it may deny); Metropolitan

Washington Airports Auth. v. Citizens for the Abatement o f Aircraft Noise, Inc., 501 U.S. 252, 271 (1991) (Congress 

may not use its authority over federal property to achieve ends by indirect means that it cannot accomplish directly); 

see also Authority o f Congressional Committees to Disapprove Action o f Executive Branch, 41 Op. Att’y Gen. 230, 

233 (1955) (Att’y Gen. Brownell) (“ If the practice of attaching invalid conditions to legislative enactments were 

permissible, it is evident that the constitutional system of the separability o f the branches of Government would 

be placed in gravest jeopardy.” ); Constitutionality o f Proposed Legislation Affecting Tax Refunds, 37 Op. Att'y 

Gen. 56, 61 (1933) (A tt’y Gen. Mitchell) (“ This proviso can not be sustained on the theory that it is a proper 

condition attached to an appropriatioa Congress holds the purse strings, and it may grant or withhold appropriations 

as it chooses, and when making an appropriation may direct the purposes to which the appropriation shall be devoted 

and impose conditions in respect to its use, provided always that the conditions do not require operation of the 

Government in a way forbidden by the Constitution.” ).

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fication” Requirements o f Section 501(b) of the National Security Act, 10 Op.

O.L.C. 159, 169-70 (1986) (Asst. Att’y Gen. Cooper).3*

A.

As then-Assistant Attorney General William Barr noted, “ Congress cannot use 

the appropriations power to control a Presidential power that is beyond its direct 

control.” 40 It is, of course, well settled that the Constitution vests the President 

with the exclusive authority to conduct the Nation’s diplomatic relations with other 

States. This authority flows, in large part, from the President’s position as Chief 

Executive, U.S. Const, art. II, §1, cl. 1, and as Commander in Chief, id. art.

II, §2, cl. 1. It also derives from the President’s more specific powers to “ make 

Treaties,” id. art. II, §2, cl. 2; to “ appoint Ambassadors . . . and Consuls,” 

id.', and to “ receive Ambassadors and other public Ministers,” id. art. II, §3. 

The Supreme Court has repeatedly recognized the President’s constitutional authority with respect to the conduct of diplomatic relations.41

Interwoven with the President’s constitutional authority to conduct diplomatic 

relations is his constitutional authority to determine whether to disclose the content 

of international negotiations: without such power, he could not ensure the coni9 See also Bill to Relocate United States Embassy from Tel Aviv to Jerusalem, 19 Op. O.L.C. 123, 126 (1995) 

(concluding (hat a bill, which would condition executive branch’s ability to obligate appropriated funds upon locating 

U.S. embassy to Israel in Jerusalem, would unconstitutionally invade the President’s constitutional authority to determine the form and manner of the Nation’s diplomatic relations).

40 Panel symposium on The Appropriations Power and the Necessary and Proper Clause, 68 Wash. U L.Q. 623, 

628 (1990). So, for instance, the Supreme Court has prohibited Congress’s use of its spending power to encroach 

on the exclusive power of the President to grant pardons. United States v. Klein, 80 U.S. (13 Wall.) 128 (1872). 

A century later, this Office construed an amendment to an appropriations act that prohibited the use of certain 

funds for salaries or expenses in connection with readmitting into the United States persons who had evaded the 

draft. This Office concluded that the statute, if construed broadly, would be an unconstitutional interference with 

the President’s pardon power. Accordingly, we advised the Counsel to the President that the statute should be narrowly construed to avoid the constitutional infirmity. If the circumstances (unavailability of alternative funds) made 

that unworkable, then the President was advised to disregard the amendment as an unconstitutional condition attached 

to an appropriations act. Memorandum for the Honorable Robert J. Lipshutz, Counsel to the President, from John 

Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Myers Amendment (Aug. 30, 1977); see also

Mutual Security Program— Cutoff o f Funds From Office o f Inspector General and Comptroller, 41 Op. A lt’y Gen. 

507, 527 (1960) (Att’y Gen. Rogers) (“ [T]he power of appropriation . . . is far-reaching in scope, and the objects 

of appropriation are also subject to the broad discretion of Congress. But the power to appropriate . . cannot 

be exercised without regard to constitutional limitation.” ); Memorial o f Captain Meigs, 9 Op. A tt’y Gen. 462, 469-

70 (1860) (concluding that appropriations bill that contained condition that the money be spent only under the supervision of a particular person designated for appointment by Congress was invalid encroachment upon presidential 

authority and should be treated “ as if the paper on which it is written were blank.’’).

41 See, e.g.. Department o f the Navy v. Egan, 484 U.S. 518, 529 (1988) (the Supreme Court has “ recognized 

‘the generally accepted view that foreign policy was the province and responsibility of the ExecutiveTM (quoting 

Haig v. Agee, 453 U.S. 280, 293-94 (1981))); Alfred Dunhill o f London, Inc. v. Republic o f Cuba, 425 U.S. 682, 

705-06 n.18 (1976) (opinion of White, J.) (“ [T]he conduct o f [foreign policy] is committed primarily to the Executive 

Branch.” ); United States v. Louisiana, 363 U.S. 1, 35 (1960) (the President is “ the constitutional representative 

o f the United Stales in its dealings with foreign nations” ); see also Ward v. Skinner, 943 F.2d 157, 160 (1st Cir. 

1991) (Breyer, C J.) (“ [T]he Constitution makes the Executive Branch . . . primarily responsible” for the exercise 

o f “ the foreign affairs power.” ), cert, denied, 503 U.S. 959 (1992); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 

210 (D.C. Cir. 1985) (Scalia, J.) ( “ fBJroad leeway” is “ traditionally accorded the Executive in matters of foreign 

affairs.” ); Charles J. Cooper, panel symposium on What the Constitution Means by Executive Power, 43 U. Miami 

L. Rev. 165, 177 (1988) (“ [T]he conduct of foreign affairs is an aspect of the executive power entrusted to the 

President, subject only to narrowly defined exceptions.” ).

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fidentiality and secrecy that are essential elements of diplomacy. “ [I]t is elementary that the successful conduct of international diplomacy and the maintenance 

of an effective national defense require both confidentiality and secrecy. Other 

nations can hardly deal with this Nation in an atmosphere of mutual trust unless 

they can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence.” 42 As precedent and 

continuing practice firmly establish, “ [t]he conduct of international negotiations 

is a function committed to the President by the Constitution,” and “ he must have 

the authority to determine what information about such international negotiations 

may, in the public interest, be made available to Congress and when such disclosure should occur.” 43 The President therefore possesses, as a matter of constitutional law, the authority to exercise independent judgment about whether it is 

in the public interest to disclose such information to Congress.44 The President’s 

authority to control the release of diplomatic communication does not terminate 

when the negotiations conclude.45

On the interpretation of section 406 advocated by House Counsel, however, 

Congress would be attempting to compel the President to disclose the contents 

of international negotiations of a highly sensitive and confidential nature (including direct correspondence between one Head of State and another) as a condition 

of honoring a commitment made by the President, acting pursuant to statutory 

authority, to furnish financial aid in the midst of an international currency crisis. 

Such a constraint on the President’s authority would “ deprive the President of

42 New York Times Co. v. United States, 403 U.S. 713, 728 (1971) (Stewart, J., concurring). As the Senate Foreign 

Relations Committee stated in 1816, in recognizing limits on its authority to demand documents related to diplomatic 

matters from the President, “ [t]he nature o f transactions with foreign nations, moreover, requires caution and unity 

o f design, and their success frequently depends upon secrecy and dispatch.” United States v. Curtiss-Wright Export

Corp. 299 U.S. 304, 319 (1936) (quoting Compilation o f Reports o f the Committee on Foreign Relations, United

States Senate, 1789-1901, S. Doc. No. 56-231, pt. 8, at 24 (1901)); see also Charles J. Cooper and Leonard A. 

Leo, Executive Power Over Foreign and Military Policy: Some Remarks on the Founders’ Perspective, 17 OkJa. 

City U. L. Rev. 265, 274 (1991) ("The Federalist No. 75 . . . recognize[ed] the importance of presidential autonomy 

in . . . negotiations — so that he may ‘enjoy the confidence and respect of foreign powers' and ‘act with an equal 

degree of weight of efficacy.’ ” (quoting The Federalist No. 75 at 487 (Alexander Hamilton) (E. Earle ed. 1937))).

43 14 Op. O.L.C. at 43. In that opinion, this Office concluded that a condition contained in a statute authorizing 

funds for international conferences that required the President to include certain individuals as U.S. Representatives 

in the negotiating delegation was unconstitutional. See also The Disclosure o f Documents to the House Committee

on Government Operations— Boycotts— Export Administration Act, 1 Op. O.L.C. 269, 270 (1977) (Asst. Att’y Gen. 

Harmon) (concluding that the executive branch may, as a matter of constitutional law, refuse to provide to Congress 

documents reflecting confidential communication and notes of meetings with foreign government officials, where 

the disclosure of documents could “ impair o u r relations with the foreign governments involved, both by breaching 

a pledge of confidentiality and by releasing information possibly detrimental to the interests of the other governm ents,” the documents could properly be considered “ state secrets” ); Memorandum from John R. Stevenson, Legal 

Adviser, Department of State, and William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re'

The President’s Executive Privilege to Withhold Foreign Policy and National Security Information at 7 (Dec. 8,

1969) (“ [T]he President has the power to withhold from the Senate information in the field of foreign relations 

or national security if in his judgment disclosure would be incompatible with the public interest.” ).

44 1 Op. O.L.C. at 269, 272.

45 See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320-21 (1936); 14 Op. O.L.C. at 44 n.6, 

13 Op. O.L.C. at 259; 10 Op. O.L.C. at 165 n.13. (Asst. A tt’y Gen. Cooper).

268
his constitutionally-mandated control over the disclosure of the content of [foreign 

affairs] negotiations.” 46 Congress, therefore, cannot directly or indirectly compel 

such a disclosure: it lacks the authority, whether in the exercise of its spending 

power or any other of its powers, to “ inquire into matters which are within the 

exclusive province of one of the other branches of the Government.” 47 Accordingly, section 406, if given the construction urged in the House Counsel Memorandum, would be invalid as an unconstitutional condition imposed on the President.48

B.

The President’s constitutional authority to control the disclosure of documents 

and information relating to diplomatic communications has been recognized since 

the beginning of the Republic. The issue first arose during the administration of 

President George Washington, and it was President Washington and the distinguished members of his cabinet who originally articulated the Executive’s authority to withhold documents in the public interest. By its deliberations and actions, 

the Washington administration outlined a consistent account of the executive 

branch’s independent power over diplomatic communications: (1) the Constitution 

delegates to the President the authority to withhold documents relating to diplomatic negotiations from Congress when disclosure would be, in his judgment, 

contrary to the public interest; (2) the President has discretion to disclose documents that he could have withheld when in his judgment it is appropriate to do 

so; and (3) it is appropriate whenever possible to construe congressional requests 

for information to avoid a conflict between the President’s constitutional prerogative and congressional requirements. Subsequent Presidents have regularly adhered 

to Washington’s views.

The earliest discussion of the question of presidential authority over disclosure 

appears to have been in response to a March 1792 resolution of the House of 

Representatives appointing a committee with the power to investigate the disastrous St. Clair expedition of the previous year. When the committee requested

46 14 Op. O.L.C. at 42.

47 Barenblatt v. United Stales, 360 U.S. 109, 112 (1959)

48 We do not mean to suggest that the President’s constitutional authority over the disclosure of confidential executive branch documents is limited to the area of foreign affairs. A few years ago then-Assistant Attorney General 

Barr described “ the President’s constitutional right and duty to withhold from disclosure certain information" as 

including “ information whose disclosure might significantly impair the conduct of foreign relations, the national 

security, the deliberative processes of the executive branch or the performance of its constitutional duties.” Common

Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248, 254 (1989); see also Memorandum 

from President Harry S. Truman (Mar. 15, 1948), reprinted in H.R. Rep. No. 80-1595, at 8-10 (1948) (minority 

report) (“ Truman Memorandum” ) ( “ Since the founding of the Government the Presidents of the United States 

have, from time to time, held information of various types to be confidential, and have refused to divulge or to 

permit the divulgence o f such information outside of the executive branch of the Government.” ). For the purposes 

of this memorandum, however, it is unnecessary to examine the legal principles governing presidential control of 

this broader range of information: section 406 concerns documents with respect to which the President’s authority 

is the most unequivocal and absolute. See, e.g., Confidentiality o f the Attorney General's Communications in Counseling the President, 6 Op. O.L.C. 481, 482-83 & n.3 (1982) (Asst. A tt'y Gen. Olson).

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that the Secretary of War provide it with relevant documents, President Washington asked the cabinet’s advice as to his proper response “ because [the request] 

was the first example, and he wished that so far as it should become a precedent, 

it should be rightly conducted.” 49 Washington’s own view was that “ he could 

readily conceive of papers of so secret a nature, as that they ought not to be 

given up.” 50 A few days later a unanimous cabinet— including Secretary of State 

Thomas Jefferson, Secretary of the Treasury Alexander Hamilton, and Attorney 

General Edmund Randolph— concurred. The cabinet advised the President that 

while the House “ might call for papers generally,” “ the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, 

the disclosure of which would injure the public.” 51 The Executive “ consequently 

w[as] to exercise a discretion” in responding to the House request.52

Although the cabinet further advised President Washington that the documents 

in question could all be disclosed consistently with the public interest,53 his and 

their conclusion that the House resolution could not compel disclosure against 

the President’s judgment apparently was communicated to the House, which 

promptly substituted a new resolution asking only for papers “ of a public nature,” 

a request with which the President complied.54 Just as Washington had anticipated, 

the St. Clair episode set an important precedent, in several respects. First, it produced agreement in a group including three of the most distinguished participants 

in the Philadelphia convention (Washington, Hamilton and Randolph) as well as 

between two of the most influential early interpreters of the Constitution (Hamilton and Jefferson) that the President possesses the authority to refuse to disclose 

documents respecting military and diplomatic matters to Congress when in his 

judgment to do so would be harmful. Second, the event was the first instance 

of the Executive construing a congressional document request in order to preserve 

executive branch prerogatives.55 Finally, the House’s substitute motion apparently

49 1 Writings o f Thomas Jefferson 303 (Andrew Lipscomb ed. 1903) (The Anas).

s°W.

5'Id. at 304.

52 Id.

« / d . a t 305.

54 The substitute resolution acknowledged indirectly the President’s asserted power to withhold documents, by 

defining the documents included in rather than those excepted from the scope of the House's request. See Abraham 

D. Sofaer, War, Foreign Affairs and Constitutional Power 82-83 (1976) ("S ofaer” ) (concluding that the “ far more 

reasonable construction” of the House’s "som ewhat ambiguous” language is that it meant "those papers that could 

properly or safely be made public” ). Subsequent congressional requests to the President have generally included 

direct acknowledgments of the President's authority not to disclose.

55 Although the House committee had demanded the originals of the relevant documents, the cabinet opined that 

‘‘copies only should be sent, with an assurance” that the Executive would permit verification of the copies’ accuracy 

if desired. 1 Writings o f Thomas Jefferson at 305. A majority o f the cabinet, furthermore, advised Washington that 

such document requests should properly come from the full House to the President rather than from a committee 

to his subordinate, id. at 304, a view apparently accepted by the House in its substitute resolution. See Sofaer, 

supra at 82.

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began the long history of congressional acquiescence in the Executive’s assertion 

of discretionary authority over disclosure.56

President Washington adhered to the conclusions reached in 1792 in later confrontations with Congress. In January 1794, the Senate requested the President 

to provide it with “ the correspondences which have been had” between the Republic of France and the United States minister to France, as well as between 

the minister and the Secretary of State; the resolution was entirely unqualified. 

Once again, Washington’s cabinet advised the President unanimously that he need 

not and should not disclose documents against his judgment of the public interest.57 In a separate written opinion, Attorney General William Bradford agreed: 

“ [I]t is the duty of the Executive to withhold such parts of the said correspondence 

as in the judgment of the Executive shall be deemed unsafe and improper to be 

disclosed.” 58 Bradford vigorously rejected the argument that the Senate’s unqualified language precluded a construction of the resolution that would respect the 

President’s authority over disclosure, authority that Bradford plainly rooted in the 

Constitution.59 President Washington acted on this advice by providing the Senate 

with the correspondence except, as he explained in a cover letter, for “ those particulars which, in my judgment, for public considerations, ought not to be communicated.” 60

The best known of President Washington’s assertions of the Executive’s authority over disclosures not in the public interest involved the controversial Jay Treaty 

and a resolution by the House requesting the correspondence and other documents 

relating to the Treaty. Although the resolution contained an explicit exception for

56See Sofaer, supra at 81-83. Perhaps the most serious congressional questioning o f the President’s constitutional 

authority occurred in 1948, when the House of Representatives considered a joint resolution intended to vest in 

a congressional committee the power to make determinations about disclosure of documents obtained from the executive branch. Opponents of the bill pointed out that its passage would violate the principle that “ [u]nder the Constitution, the Executive is no less supreme in his field than is the Congress in its field of operation.” H.R. Rep. No. 

80-1595, at 10 (1948) (minority report). In addition, they argued, “ the acquiescence by the Congress for over 150 

years in the Executive prerogative of withholding from disclosure such information as the Executive deems must 

be withheld in the public interest is in itself conclusive proof that the prerogative is one which exists under, and 

is protected by, the Constitution.” Id. The Resolution was not finally adopted.

57 Secretary Hamilton agreed with Secretary of War Henry Knox that it would be best flatly to decline compliance, 

but reasoned that “ the principle” of executive authority would be “ safe, by excepting such parts as the President 

may choose to withhold.” Cabinet Meeting Opinion on Communicating to the Senate the Dispatches of Gouvemeur 

Morris, 15 The Papers o f Alexander Hamilton 666, 667 (Harold C. Syrett ed., 1969). Randolph, now Secretary 

of State, advised the communication o f “ all the correspondence, proper from its nature to be communicated to 

the Senate,” but agreed that “ what the President thinks improper, should not be sent.” Id.

38 Memorandum for the President, from William Bradford, Attorney General (n.d.), reprinted in Waller Dellinger 

and H. Jefferson Powell, The Attorney General’s First Separation o f Powers Opinion, 13 Const. Commentary 309, 

316(1996).

59 Bradford wrote that he also conceived

that the general terms o f the resolve do not exclude, in the construction of it, those just exceptions which 

the rights of the executive and the nature of foreign correspondences require. Every call o f this nature, 

where the correspondence is secret and no specific object pointed at, must be presumed to proceed upon 

the idea that the papers requested are proper to be communicated[;] & it could scarcely be supposed, 

even if the words were stronger[,] that the Senate intended to include any Letters!,] the disclosure of which 

might endanger national honour or individual safety.

Id.

60 4 Annals of Cong. 56 (1794); see Sofaer, supra at 83-85.

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documents “ improper to be disclosed,” the President ultimately refused to comply:

The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a 

conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated 

would be extremely impolite; for this might have a pernicious influence on future negotiations or produce immediate inconveniences, 

perhaps danger and mischief, in relation to other powers.61

While Washington explained his rejection of any “ right” on the House’s part 

to demand “ all the Papers respecting a negotiation with a foreign power,” id.

in 1 M essages and Papers at 195, with reference to the realities of foreign affairs, 

he grounded his position in his “ obligation . . . to ‘preserve, protect and defend 

the Constitution.’ ” 62

C.

We have not discussed the Washington era events at length out of mere antiquarian interest. Later Presidents have regularly followed Washington— and cited 

him — in combining assertions o f their constitutional authority to withhold documents relating to diplomatic matters and of the propriety of interpreting congressional requests as respecting their constitutional prerogative with earnest attempts 

to accommodate Congress’s interests.63 The constitutional position originally for61 Message of President George Washington to the House o f Representatives (Mar. 30, 1796), in 1 A Compilation

o f the Messages and Papers o f the Presidents 1789-1897, at 194-95 (James D. Richardson ed., (1897)) ("Messages

and Papers").

62 !d. in 1 Messages and Papers at 194. In asserting the constitutional basis for his refusal to comply with the 

House request, W ashington relied in part on the exclusion of the House from the treaty power. However, we believe 

that it is clear that W ashington was in no way rejecting the position he had already taken— that the President 

might withhold documents when the public interest so required. See Sofaer supra at 93; Message of President James 

K. Polk to the House o f Representatives (Jan. 12, 1848), in 4 Messages and Papers 565, 567 (relying on Washington’s 

argument based on his authority to control the disclosure of diplomatic information while not “ deeming it to be 

necessary on the present occasion to examine or decide upon the other reasons” given in W ashington’s message).

The Executive's responsibility for determining what part of the correspondence could be disclosed was also defended vigorously in the House. Even James Madison, who strongly insisted on the House of Representatives’ genera] 

right to access to information, conceded the President's authority over disclosure. Madison told the House that the 

House “ must have a right, in all cases, to ask for information which might assist in their deliberations on the 

subjects submitted to them by the Constitution; being responsible, nevertheless, for the propriety of the measure” 

but continued that he “ was as ready to admit that the Executive had a right, under a due responsibility, also, to 

withhold information, when o f a nature that did not permit a disclosure o f it at the time.” 5 Annals of Cong. 

773(1796).

63 The traditional executive branch view o f the 1796 message is that it is a powerful precedent for the Executive’s 

long-standing constitutional view that Congress cannot legitimately deny the President the power to withhold documents when in his judgment the public interest requires such action. See Message of President James K. Polk to 

the House o f Representatives (Jan. 12, 1848), in 4 Messages and Papers at 566-67; Message of President John 

Tyler to the House o f Representatives (Jan. 31, 1843), in 4 Messages and Papers 220, 223; Truman Memorandum; 

see also Position o f the Executive Department Regarding Investigative Reports, 40 Op. Att’y Gen. 45, 48 (1941); 

13 Op. O .L .C at 259; 10 Op. O.L.C. at 165 a l 3 .

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mulated by the Washington Administration has thus become the practice of the 

executive branch as an ongoing institution,64 and the Attorneys General and the 

heads of this Office have consistently maintained that it is the correct interpretation of the respective powers of President and Congress.65 The executive branch 

position has had vigorous defenders in the legislative branch as well,66 and Congress has usually accepted the Executive’s position as a practical matter.67

64 William H. Taft, The Presidency 110 (1916) (“ The executive has always insisted and maintained that, while 

either house may request information, it cannot compel it if the executive deems it to be inconsistent with the 

public weal to disclose what is asked.” ). President James K. Polk’s response to an 1848 document request is particularly instructive. On January 4, 1848, the House passed a resolution calling on the President to provide the House 

with a broad range of documents concerning United States relations with Mexico, including communications to 

the United States minister to Mexico and to United States military officers. As President Polk noted in his response, 

“ [t]he customary and usual reservation contained in calls of either House of Congress upon the Executive for information relating to our intercourse with foreign nations [was] omitted.” Message of President James K. Polk to the 

House of Representatives (Jan. 12, 1848), in 4 Messages and Papers at 566. Despite the unqualified nature o f the 

House resolution, Polk provided only those documents that he deemed it “ compatible with the public interests to 

communicate,” id. in 4 Messages and Papers at 565, citing constitutional principle and executive precedent:

The call of the House is unconditional. It is that the information requested be communicated, and thereby 

made public, whether in the opinion of the Executive (who is charged by the Constitution with the duty 

of conducting negotiations with foreign powers) such information, when disclosed, would be prejudicial 

to the public interest or not. It has been a subject of serious deliberation with me whether I could, consistently with my constitutional duty and my sense of the public interests involved and to be affected by 

it, violate an important principle, always heretofore held sacred by my predecessors, as I should do by 

a compliance with the request of the House.

Id. in 4 Messages and Papers at 566. Polk discussed and relied on President W ashington’s 1796 refusal in concluding 

that it was his “ constitutional right and solemn duty under the circumstances of this case to decline a compliance 

with the request of the House.” Id. in 4 Messages and Papers at 567; see also 94 Cong. Rec. 5711 (1948) (statement 

o f Rep. McCormick) (identifying seventeen different administrations in which by 1948 the executive branch had 

declined to comply with congressional requests for information or documents).

63 See e.g., Mutual Security Program— Cutoff o f Funds From Office o f Inspector General and Comptroller, 41 

Op. Att’y Gen. 507 (1960); The Disclosure o f Documents to the House Committee on Government Operations— 

Boycotts — Export Administration Act, 1 Op. O.L.C. 269 (1977).

66 Senator Howell Edmunds Jackson's 1886 speech in response to President Cleveland’s refusal to provide certain 

documents is illustrative. Jackson noted that the question

as to how far the executive department of the Government should respond to the calls of the House and 

Senate for papers . . . came up as early as 1792, and from that time to this it has been uniformly held 

both by the executive and judicial departments of the Government that it rested in the discretion of the 

Executive as to what papers he would produce in response to calls by the Legislature or the courts.

17 Cong. Rec. 2622 (1886). As the Senate Foreign Relations Committee stated in 1816, in recognizing the limits 

on its authority to interfere in diplomatic matters, “ [t]he nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends upon secrecy and dispatch.” Compilation

o f Reports o f the Committee on Foreign Relations, United States Senate, 1799-1901, S. Doc. No. 56-231, pt. 8, 

at 24 (1901), see also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936) (describing Washington’s refusal to comply with the House request in 1796— “ a refusal the wisdom of which was recognized by the 

House itself and has never since been doubted” ).

In 1826, Representative Daniel Webster objected to an appropriations rider that purported to attach instructions 

to United States diplomats whom the President proposed to send to an international conference. Webster argued 

vigorously that the rider was “ unconstitutional; as it was taking the proper responsibility from the Executive and 

exercising, ourselves, a power which, from its nature, belongs to the Executive and not to us.” See Eli E. Nobleman, 

Financial Aspects o f Congressional Participation in Foreign Relations, 289 Annals Am. Acad. Pol. & Soc. Sci. 

145, 150(1953).

67 The most persuasive evidence of congressional recognition of the force of the executive branch position may 

be the long-standing practice of including the public interest exception in resolutions requesting information. As 

noted in the minority report accompanying the Truman Memorandum,

The unwisdom of our attempting at this time to enforce this asserted congressional 'right' o f doubtful 

constitutionality [to demand information that the executive branch deems is not in the public interest to 

disclose] when 79 Congresses which have gone before us have seen fit not to attempt such enforcement

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The more recent doctrine and practice of the executive branch demonstrate the 

continuing vitality of the President’s constitutional authority to control the disclosure of diplomatic communications, even in the face of an effort by Congress 

to condition funding on the making of those disclosures. In 1960, Attorney General William Rogers advised President Eisenhower regarding a provision of a statute that directed that certain expenses of a State Department office be charged 

to certain appropriations, provided that all documents relating to activities of that 

office were furnished upon request to Congress.68 A related statute provided for 

termination of funds if all documents were not produced, unless the President 

certified that he had forbidden the disclosure of the documents to protect the public interest. The State Department refused to furnish a number of documents requested by a House subcommittee, and the President certified that he had forbidden their disclosure. The Comptroller General, interpreting the former statute as 

not incorporating the public interest exception, directed that funds not be made 

available to liquidate obligations incurred from the following day forward. Attorney General Rogers concluded that the statute should be construed to include the 

public interest exception because otherwise the statute, as applied under the circumstances, would embody an unconstitutional condition:

First, it is the constitutional duty and right of the President and 

those officials acting pursuant to his instructions, to withhold information of the executive branch from Congress whenever the President determines that it is not in the public interest to disclose such 

information.

Second, under the constitutional doctrine of separation of powers 

Congress may not directly encroach upon the authority confided 

to the President.

Third, the Constitution does not permit any indirect encroachment 

by Congress upon this authority of the President through resort to

is self-evident. Not only that, but also the acquiescence by the Congress for over 150 years in the Executive 

prerogative o f withholding from disclosure such information as the Executive deems must be withheld 

in the public interest is in itself conclusive proof that that prerogative is one which exists under, and 

is protected by our Constitution and that the ‘right' o f the Congress which House Joint Resolution 342 

would enforce has no constitutional basis.

H.R. Rep. No. 80-1595, at 10 (1948).

To be sure, the Houses of Congress have rarely conceded unequivocally that the exception is constitutionally 

required. This is hardly surprising: Congress is subject to strong “ hydraulic pressures” to describe its powers in 

expansive terms and consequently minimize the independent authority o f the Executive. See INS v. Chadha, 462 

U.S. 919, 947, 951 (1983) (noting “ ‘propensity’ ” of the legislative branch " ‘to invade the rights o f the Executive’ ” 

(quoting The Federalist No. 73, at 442 (Alexander Hamilton) (Clinton Rossiter ed., 1961))).

**41 Op. A tt’y Gen. 507 (1960) (construing the Mutual Security Act of 1959, Pub. L. No. 86-108, sec. 401(b), 

§533A , 73 Stat. 246, 253).

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conditions attached to appropriations such as are contended to be 

contained in . . .the act.69

Thus, he concluded, in spite of the Comptroller General’s letter announcing the 

termination of funds, the funds “ continue to be available as heretofore.” 70

Similarly, in 1973, this Office issued an opinion regarding the constitutionality 

of a section of an authorizations act providing that no funds made available to 

the Department of State and related agencies may be obligated thirty-five days 

after delivery to the head of the agency of a request from certain congressional 

committees for documents, unless the agency has complied with the request.71 

The statute excepted only communications to and from the President personally. 

Thus, the statute precluded the President from exercising his constitutional authority “ to prevent the disclosure to the Congress of information where in his judgment disclosure would be contrary to the public interest.” 72 This Office concluded 

that the statute, if interpreted literally, would be an unconstitutional interference 

with the President’s duty to refuse compliance with a congressional demand to 

disclose documents that may reveal state secrets. The opinion noted that the statute 

did not literally deny to the President the exercise of his authority to invoke executive privilege, but rather it would “ as a practical matter” leave the President with 

“ no choice.” 73 The following analysis from that opinion is fully applicable to 

the present situation:

The Department of Justice is not prepared to take the position that 

in every instance legislation would be unconstitutional that might 

operate to interfere with the free exercise of the President’s discretion as to whether or not he shall invoke the privilege. . . . Congress may refuse to pass needed legislation, or the Senate may withhold its advice and consent to a treaty, or to the appointment of 

an officer, if it is denied requested information. Legislation that 

would provide for similar limited restraints on the President’s exercise of privilege therefore is not necessarily unconstitutional. That 

consideration, however, ceases to be operative where the penalty 

attached to the exercise of the privilege is such that as a practical 

matter the President has no choice but to comply with every Congressional demand no matter how injurious to the public interest

69 Id. at 530 (footnote omitted).

70 Id. at 531.

71 Memorandum for the Honorable Leonard Garment, Counsel to the President, from Leon Ulman, Acting Assistant 

Attorney General, Office o f Legal Counsel, Re: Constitutionality o f Section 13 o f the Slate/USIA Authorization (July 

16, 1973).

12 Id. at 1-2.

13 Id. at 4.

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or unreasonable. The choice is transferred from the President to 

the Congress, without recourse.

In our view, [the statute] falls into the latter category. By providing 

that the funds for an entire agency will be cut off should the President exercise his constitutional power it deprives the President of 

all choice. In other words, despite its wording, [the statute] is for 

all practical intent and purposes identical with legislation that would 

expressly deny to the President the exercise of a constitutional 

power. It is therefore in our judgment unconstitutional.74

Precipitously cutting off assistance to Mexico, thereby threatening a liquidity 

crisis in Mexico, which could in turn put at risk a secure U.S.-Mexico border 

and jeopardize the position of other emerging markets is as serious a consequence 

as terminating funds to a government agency — the threatened situation considered 

in the 1973 Opinion. To compel the President to choose between violating his 

constitutional duty to withhold documents when that is required by the public 

interest and failing to honor a commitment to a foreign sovereign, just as surely 

would deny the President a meaningful choice. The choice presented to the President under House Counsel’s interpretation of section 406 would be particularly 

hollow because — in contrast to the statutes at issue in the 1960 and 1973 opinions, which apparently sought to deny funds prior to their being obligated by 

the executive branch — the certification requirement would have forbidden the disbursal of funds already committed.

IV.

As then-Assistant Attorney General Barr has cautioned, in analyzing the scope 

of Congress’s use of its power over finances to control the activities of the coordinate branches of government, “ the easy answer is probably not a correct answer.” 75 In the absence of a large body of case law interpreting the separation 

of powers issues raised by congressional efforts to use its appropriations power 

to control the President’s exercise of his foreign affairs powers,76 long-standing 

executive branch practice is a primary authority for the proper interpretation of

74 Id. at 4-5. The Act as finally enacted did not include the unconstitutional provision. Department of State Authorization Act of 1973, Pub. L. No. 93-126, 87 Stat. 451.

75 Panel symposium on The Appropriations Power and the Necessary and Proper Clause, 68 Wash. U. L.Q. 626, 

626(1990).

76The Supreme Court itself has labelled "the decisions of the Court in this area . . . (as] rare, episodic and 

affording] little precedential value for subsequent cases.” Dames & Moore v. Regan, 453 U.S. 654, 661 (1981). 

The paucity o f judicial decisions is partly a result of the fact that many o f the issues are non-justiciable, and partly 

a product of the courts’ proper reluctance to intrude into the decisions of the political branches in the area. See

Chicago & Southern Air Lines Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (‘‘[T]he very nature of 

executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative.” ).

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the Constitution. As one commentator has noted: “ Most of the law here consists 

not of judicial precedents but of historical ones; legitimacy is found in repetition, 

innovation, and acceptance.” 77 The history of the relationship between Congress 

and the President in this area is one of delicate accommodation, and wherever 

possible the executive branch has sought to construe statutes in a manner that 

avoids rather than creates confrontation. Our April 14 Letter continued that history.

The President’s constitutional authority to control disclosure of diplomatic communications, and the invalidity of congressional attempts to compel the President 

to relinquish his constitutional powers by the imposition of conditions on expenditures, are directly relevant to the correct interpretation of section 406. Read as 

House Counsel does, the effect of the statute would be a dramatic intrusion into 

the President’s conduct of foreign relations. At the time section 406 was enacted, 

the President had already taken action, pursuant to his statutory authority with 

respect to the Exchange Stabilization Fund, that constituted a United States commitment of emergency assistance to Mexico. Failure to honor that commitment 

would risk a sovereign default, severe hardship within Mexico, with direct consequences for the United States.

According to House Counsel, section 406 required the President either to accept 

these serious consequences or to surrender his constitutional authority to determine 

which documents relating to the Mexico assistance program could be disclosed 

consistent with the public interest. As we have discussed, the Constitution does 

not permit Congress to employ its fiscal powers to compel such a surrender, and 

the interpretation of section 406 advocated by House Counsel thus would raise 

a serious question about its validity. Moreover, the validity of section 406, read 

in this manner, is not saved by the accommodation process outlined in section 

406(b). Compliance with that subsection would require the President to share with 

the Speaker and other members of the House his discretion to determine which 

documents could be disclosed and would entail disclosing every document, regardless of its contents, to at least some members of the legislative branch. The President’s constitutional authority to control disclosure, however, vests in him unilateral exercise of judgment about disclosure, and to decline to disclose appropriate 

documents entirely. As this Office has observed in the past, the President’s authority over diplomatic information, unlike certain other constitutionally grounded 

privileges, is not subject to balancing: it is absolute.78 Congress may not use conditions on spending to control or compel a waiver of such a presidential power.

77Peter J. Spiro, War Powers and the Sirens o f Formalism 68 N.Y.U. L. Rev. 1338, 1340 (1993); see also The

Pocket Veto Case, 279 U.S. 655, 688-90 (1929) (‘‘Long settled and established practice is a consideration o f great 

w eight. . . .” ).

78 See, e.g.. Memorandum for C. Boyden Gray, Counsel to the President, from J. Michael Luttig, Principal Deputy 

Assistant Attorney General, Office o f Legal Counsel, Re: Congressional Access to Presidential Communications

(Dec. 21, 1989); Memorandum for Arthur B. Culvahouse, Jr., Counsel to the President, from Douglas W. Kmiec, 

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It is the duty and practice of the executive branch to avoid statutory constructions that unnecessarily raise grave doubts about the constitutionality of congressional measures. Respect for Congress, furthermore, counsels reluctance to interpret a statute so as to require the assertion of a presidential power to act contrary 

to the statute. It was the obligation of this Office, therefore, to seek a construction 

of section 406 that avoided interpreting it as an attempt to override the President’s 

constitutional powers.

By referring to House Resolution 80, which contained the traditional public interest exception, to define in part the certification required by the Act, section 

406 itself provided a construction that obviated the need for the President to assert 

his constitutional authority.79 The April 14 Letter therefore construed section 406 

to include the public interest exception contained in Resolution 80. In doing so, 

the advice of this office followed executive practice dating back to the beginning 

of the Republic.

WALTER DELLINGER 

Assistant Attorney General

Office o f Legal Counsel

dential Evidence in a Criminal Prosecution (Oct. 17, 1988); see also Halkin v. Helms, 598 F.2d 1, 7 (D.C. Cir. 

1978) (President's control over communications containing state secrets is absolute).

79 Because the position adopted in the A pril 14 Letter was the appropriate construction to give the statute, we 

need not resolve the difficult question of w hal the Executive’s legal view would have been if the statute had not 

been expressly linked to House Resolution 80. We do note, however, that in the past this Office has opined that 

the President was entitled to disregard a severable, unconstitutional condition on statutory spending authority, and 

proceed to employ that authority. Issues Raised by Provisions Directing Issuance o f Official or Diplomatic Passports,

16 Op. O.L.C. 18 (1992) (Acting Asst. A tt’y Gen. Flanigan); Issues Raised by Foreign Relations Authorization

Bill, 14 Op. O.L.C. 37 (1990) (Asst. Att’y Gen. Ban-); Memorandum for the Honorable Robert J. Lipshutz, Counsel 

to the President, from John M. Harmon, Assistant Attorney General, Office o f Legal Counsel, Re: Myers Amendment

(Aug. 30, 1977).

As this Office has concluded, the President does not, by signing a piece of legislation, “ barter away” his responsibility to treat an Act as unconstitutional. M emorandum for the Honorable Robert J. Lipshutz, Counsel to the President, 

from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Myers Amendment at 8 (Aug. 

30, 1977); see also 14 Op. O.L.C. at 46 n.10 ("T he analysis o f [whether the President may refuse to enforce an 

unconstitutional condition on an appropriation] does not depend on whether the President signed the bill or not. 

As the Supreme Court has observed, ‘it is not uncommon for Presidents to approve legislation containing pans 

which are objectionable on constitutional grounds.' That the President has signed the bill in no way stops his ability 

to assert the bill’s unconstitutionality, in court or otherwise.” ) (citation omitted).

278