Federal Register / Vol. 60, No. 52 / Friday, March 17, 1995 / Notices 14481

1 Department senior policy officials shall include

those Treasury officials at the Assistant Secretary

level and above as set forth in Treasury Order 101–

05 and the organization chart attached thereto.

[Treasury Order 107–05]

Communications With the White House

Regarding Open Investigations,

Adjudications or Civil and Criminal

Enforcement Actions

Dated: March 2, 1995.

By virtue of my authority as Secretary

of the Treasury, including the authority

contained in 31 U.S.C. 321(b) and 5

U.S.C. 301 and 302, I hereby issue the

following procedures for

communications between the

Department of the Treasury and the

White House regarding open

Department investigations,

adjudications or civil or criminal

enforcement actions.

1. General Procedures

a. General Policy. In order to ensure

the President’s ability to perform his

constitutional obligation to ‘‘take care

that the laws be faithfully executed,’’ it

is the policy of the Treasury Department

to provide the White House with

information on open investigations,

adjudications, or civil (including

administrative or regulatory) or criminal

enforcement actions pending before or

within any regulatory or law

enforcement agency within the

Department, where important for the

performance of the President’s duties,

where appropriate from a law

enforcement and regulatory perspective

and where consistent with these

procedures.

b. Referral Procedures. The below

listed procedures are established to

ensure the flow of appropriate

information between the Department

and the White House. Central to these

procedures is the need for consultation

with Department senior policy

officials, 1 including the General

Counsel. The General Counsel is

authorized to issue more detailed

guidance should he or she determine it

to be necessary.

OPI: AGC (Enforcement)

(1) Action to be Taken by Department

Employees/Senior Policy Officials. If a

Department employee determines that a

matter involving an open investigation,

adjudication, or enforcement action

under his or her jurisdiction should be

communicated to the White House, he

or she shall inform, through the

appropriate Department senior policy

official, the General Counsel about this

matter.

(2) Action to be Taken by Treasury

Bureau Employees/Bureau Heads. If an

employee of a Treasury law enforcement

or financial regulatory bureau or the

Office of Foreign Assets Control

(‘‘Treasury Bureau’’) believes that a

matter involving an open investigation,

adjudication or enforcement action

under his or her jurisdiction should be

communicated to the White House, he

or she shall contact, through the

Treasury Bureau head, the Department

senior policy official to whom that

Treasury Bureau head directly reports. If

the senior policy official concurs with

that recommendation, he or she shall

then inform the General Counsel about

this matter.

(3) General Counsel Review and Final

Determination. The General Counsel

shall provide the Department senior

policy official with his or her

recommendation concerning the

advisability of disclosing the

information to the White House. The

General Counsel is authorized to

preclude transmittal of the information

on legal or ethical grounds. If the

General Counsel believes that disclosure

should not be made based on other than

legal or ethical grounds, the General

Counsel shall inform the appropriate

senior policy official of this

recommendation.

(4) Other Final Determinations.

Unless precluded on legal or ethical

grounds by the General Counsel, the

Department senior policy official

referred to in paragraph 1.b.(1) or 1.b.(2)

shall make the final determination on

whether the information should be

communicated to the White House. If

the Department senior policy official

determines that such information

should be communicated to the White

House, he or she shall request the

General Counsel to make the initial

communication.

c. Communications.

(1) Initial Contact with White House.

Initial communications between the

White House and the Treasury

Department regarding any pending

Department investigation, adjudication

or criminal or civil enforcement action

shall involve only the Counsel to the

President or the Deputy Counsel and the

General Counsel or the Deputy General

Counsel. No Treasury or bureau

employee shall initiate communications

on these matters with the White House

other than as provided in paragraph 1.c.

Any Treasury or bureau employee in

possession of information pertaining to

any pending criminal referrals and

criminal investigations shall keep the

information in strict confidence and

shall not disclose the information to any

person except in accordance with

applicable law, Treasury standards and

this Order.

(2) Continuing Contact. After the

initial contact, further contact on a

matter deemed appropriate for

communications pursuant to this Order

shall be directed to the White House

Counsel’s Office by the General

Counsel, the Deputy General Counsel or

the appropriate senior policy official

designated by the General Counsel or

any other lawyer in the Office of the

General Counsel, as designated by the

General Counsel.

d. Writing Requirements. All

proposals and decisions involving open

Department investigations,

adjudications or enforcement actions

discussed herein that either propose or

result in communications with the

White House shall be detailed in

contemporaneous, written memoranda.

(1) Treasury Bureau Heads and

Department Senior Policy Officials. All

requests from Treasury Bureau Heads to

Department senior policy officials and

from Department senior policy officials

to the General Counsel requesting a

communication to the White House

concerning an open investigation,

adjudication or enforcement action shall

be in writing. Such memoranda shall

explain why the communication of

information is important for the

performance of the President’s duties

and appropriate from a law enforcement

perspective.

(2) General Counsel. The General

Counsel shall also issue in writing his

or her legal or ethical recommendation

to the appropriate Department senior

policy official in response to such

request for communication with the

White House.

(3) Emergency Situations. If an

emergency situation is present, the

memoranda requested by paragraph 1.d.

may be prepared as soon as practicable

thereafter.

e. Information Requests by the White

House. Requests by the White House for

information concerning open

Department investigations,

adjudications or civil or criminal

enforcement actions shall be referred in

all cases to the General Counsel. The

General Counsel shall ensure that such

requests are processed consistent with

the provisions of this Order and any

applicable White House guidance.

2. Open Investigations, Adjudications

or Enforcement Actions Directly

Involving the White House

a. Contacts Directly Involving the

White House. If the President, the VicePresident, a member of their families, a

senior advisor or an employee of an

office which the Chief of Staff (or any

similar successor position) directly

supervises, is an actual or potential
14482 Federal Register / Vol. 60, No. 52 / Friday, March 17, 1995 / Notices

subject, target or witness of an open

investigation, adjudication or

enforcement action under the

jurisdiction of the Treasury Bureaus, the

determination of whether it is

appropriate to disclose this information

to the White House shall be made in

accordance with this Order taking into

consideration, among other things, the

following:

(1) whether disclosure would

detrimentally affect the fundamental

operation of an agency or other

organization in the executive branch of

the federal government;

(2) whether disclosure of the

information would promote or reduce

the public confidence and trust in the

integrity of elected officials and public

servants or the Department’s regulatory

and law enforcement activities;

(3) whether there exists an immediate

threat of harm or injury to White House

persons or property which disclosure

will help to avoid;

(4) whether the matter involves any

sensitive or urgent national security or

foreign policy concern that should be

brought to the White House’s attention;

(5) whether disclosure of the

information would interfere or assist

with the Department’s law enforcement

and regulatory mission or an ongoing

law enforcement or regulatory activity;

and

(6) whether non-disclosure could

cause the White House to convey

inaccurate or misleading information to

the public.

b. Secretary/Deputy Secretary

Consultation. The Deputy Secretary

shall be informed prior to any

Department communications with the

White House involving the matters

subject to paragraph 2. The Deputy

Secretary, in turn, may consult with the

Secretary. The Secretary or Deputy

Secretary may consult with the Attorney

General or any other appropriate senior

government official concerning the

advisability of such disclosure or nondisclosure.

c. Procedures. Subject to the

procedures specified in paragraph 2.,

the procedures described in paragraph

1. herein shall apply to the

communications described in paragraph

2.

3. SCOPE. In the day-to-day

functioning of the Department, there

exist activities necessary to carry out the

Department’s law enforcement and

regulatory mission. These may include

routine law enforcement contacts,

including administrative and regulatory

contacts, designed to collect information

through document requests, interviews,

depositions or otherwise. Nothing in

this Order shall be construed to amend

the Department’s current approach with

respect to its handling of these routine

activities.

In addition, the procedures set forth

in this Order do not apply to the

following circumstances.

a. Any communication subject to a

specific statutory provision prohibiting

or governing the disclosure of the

information. (See, e.g., 12 U.S.C.

1462a(b)(3) and 26 U.S.C. 6103.)

b. Communications between the

Secret Service and the White House

concerning the Service’s protective

responsibilities.

c. Communications between a

Treasury Bureau and the National

Security Council concerning open

investigations or cases, if such

disclosure is necessary for the conduct,

determination or coordination of

national security or foreign policy

issues.

d. Communications between the

Department and the White House

appropriate to properly respond to

inquiries or requests for information or

documents in the form of (i) civil and

criminal discovery requests; (ii)

subpoenas, including but not limited to,

grand jury and congressional; (iii) other

congressional requests for documents

and information; and (iv) any other

requests for information and documents

authorized by law; provided that the

exception created by paragraph 3.d.

shall not apply to requests for

information pertaining to those officials

and individuals identified in paragraph

2. who are the subject, target or witness

in an open investigation, adjudication or

enforcement action.

e. Communications between the

Department and the White House

appropriate to formulate an

Administration position with respect to

judicial review or settlement of pending

litigation.

f. Tax, security and background

checks on prospective Federal

employees and appointees, including

Executive and Judicial Branch

appointments under consideration by

the President or the Department.

g. Communications between the

Inspector General or his or her

authorized officials and the White

House in furtherance of the duties and

responsibilities of the Inspector General

undertaken pursuant to the Inspector

General Act of 1978, 5 U.S.C.A. App. 3.

Robert E. Rubin,

Secretary of the Treasury.

[FR Doc. 95–6639 Filed 3–16–95; 8:45 am]

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