b'Authority of Acting FBI Officials to\nSign National Security Letters\nUnder the statutes authorizing the FBI to issue national security letters, the Director of the\nFBI may designate Acting Deputy Assistant Directors and Acting Special Agents in\nCharge to sign national security letters.\nJanuary 16, 2009\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nFEDERAL BUREAU OF INVESTIGATION\nYou have asked whether an official acting temporarily in the position\nof Deputy Assistant Director at the headquarters of the Federal Bureau of\nInvestigation (\xe2\x80\x9cFBI\xe2\x80\x9d) or Special Agent in Charge of an FBI field office\nmay sign national security letters (\xe2\x80\x9cNSLs\xe2\x80\x9d). By statute, NSLs may be\nissued by \xe2\x80\x9c[t]he Director of the Federal Bureau of Investigation, or his\ndesignee in a position not lower than Deputy Assistant Director at Bureau\nheadquarters or a Special Agent in Charge in a Bureau field office designated by the Director.\xe2\x80\x9d E.g., 18 U.S.C. \xc2\xa7 2709(b) (2006). 1 We conclude\nthat, under the NSL statutes, the Director of the FBI (\xe2\x80\x9cDirector\xe2\x80\x9d) may\ndesignate Acting Deputy Assistant Directors and Acting Special Agents in\nCharge to sign NSLs. 2\n\n1 Memorandum for the Principal Deputy Assistant Attorney General, Office of Legal\nCounsel, from Valerie E. Caproni, General Counsel, Federal Bureau of Investigation\n(Mar. 27, 2008) (\xe2\x80\x9cFBI Memorandum\xe2\x80\x9d).\n2 You also raise the question whether the conferral of authority to sign NSLs on Acting\nDeputy Assistant Directors and Acting Special Agents in Charge would square with the\nAppointments Clause; your memorandum assumes that the authority to sign NSLs implicates the Appointments Clause and that employees who sign NSLs must be appointed in\naccordance with that Clause. See FBI Memorandum at 6. We understand that the Director\nselects Acting Deputy Assistant Directors and Special Agents in Charge from among\nspecial agents and members of \xe2\x80\x98the FBI Senior Executive Service, and that the authority\nto appoint these officials has been delegated (and, in some cases, redelegated) from the\nAttorney General to subordinate officials of the FBI. See id. at 1, 6\xe2\x80\x937. As our Office\npreviously has stated, the \xe2\x80\x9cquestion whether [the head of a department may] delegate\nappointment authority to an officer below the head of the department is a difficult one,\nand we cannot provide a definitive answer at this time.\xe2\x80\x9d Assignment of Certain Functions\nRelated to Certain Military Appointments, 29 Op. O.L.C. 133, 135 (2005). We noted in\nparticular that \xe2\x80\x9c[t]he Clause was designed to \xe2\x80\x98limit[] the universe of eligible recipients of\n\n146\n\n\x0cAuthority of Acting FBI Officials to Sign National Security Letters\n\nI.\nUnder 18 U.S.C. \xc2\xa7 2709 (2006), 12 U.S.C. \xc2\xa7 3414 (2006), and 15 U.S.C.\n\xc2\xa7 1681u (2006), the FBI may issue NSLs seeking information relevant to\nnational security investigations. 3 In particular, 18 U.S.C. \xc2\xa7 2709(b) allows\nthe FBI to obtain from a wire or electronic communications service provider the name, address, length of service, and billing records of a subscriber, while 12 U.S.C. \xc2\xa7 3414 deals with customer records from financial institutions, and 15 U.S.C. \xc2\xa7 1681u with certain information from\nconsumer reporting agencies. To issue an NSL under these statutes, the\nFBI must certify in writing that the information requested \xe2\x80\x9cis sought for\nthe conduct of an authorized investigation to protect against international\nterrorism or clandestine intelligence activities.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 2709(b); 12\nU.S.C. \xc2\xa7 3414(a)(5); 15 U.S.C. \xc2\xa7 1681u(a). If the FBI further certifies that\n\xe2\x80\x9cotherwise there may result a danger to the national security of the United\nStates, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to\nthe life or physical safety of any person,\xe2\x80\x9d the recipient of the NSL will be\nprohibited from disclosing the NSL\xe2\x80\x99s existence or content, except as\nnecessary to comply with the NSL or to seek legal advice about it. 18\nU.S.C. \xc2\xa7 2709(c); 12 U.S.C. \xc2\xa7 3414(a)(5)(D); 15 U.S.C. \xc2\xa7 1681u(d). Both\nof these statutory certifications must be made by \xe2\x80\x9c[t]he Director of the\nFederal Bureau of Investigation, or his designee in a position not lower\nthan Deputy Assistant Director at Bureau headquarters or a Special Agent\nin Charge in a Bureau field office designated by the Director.\xe2\x80\x9d 18 U.S.C.\n\xc2\xa7 2709(b), (c); 12 U.S.C. \xc2\xa7 3414(a)(5); 15 U.S.C. \xc2\xa7 1681u(a), (d). You\nhave asked whether this language permits Acting Deputy Assistant Directhe power to appoint\xe2\x80\x99 in order to ensure that such actors were readily identifiable and\npolitically accountable.\xe2\x80\x9d Id. at 4 (quoting Freytag v. Comm\xe2\x80\x99r, 501 U.S. 868, 885 (1991)).\nWe are not in a position in the present opinion to resolve this difficult question about the\ndelegability of a department head\xe2\x80\x99s authority to appoint inferior officers.\n3 The FBI Memorandum notes (at page 2) that 15 U.S.C. \xc2\xa7 1681v (2006) similarly authorizes the issuance of NSLs to consumer reporting agencies (to obtain full credit\nreports), but that statute is different from the other NSL statutes insofar as it requires the\ncertifications to be made by a \xe2\x80\x9csupervisory official\xe2\x80\x9d designated by the head of an agency\nor another official appointed by the President with the Senate\xe2\x80\x99s advice and consent. Id.\n\xc2\xa7 1681v(b). We understand that, despite this textual difference, the FBI\xe2\x80\x99s policy is to\nfollow the same procedures for issuing NSLs under section 1681v as for other NSLs.\n\n147\n\n\x0c33 Op. O.L.C. 146 (2009)\n\ntors and Acting Special Agents in Charge to make these certifications. We\nconclude that it does.\nAs a general rule, \xe2\x80\x9c[a]n acting officer is vested with the full authority\nof the officer for whom he acts.\xe2\x80\x9d Acting Officers, 6 Op. O.L.C. 119, 120\n(1982); see Keyser v. Hitz, 133 U.S. 138, 146 (1890); Ryan v. United\nStates, 136 U.S. 68, 81 (1890); Commissioners of Soldiers\xe2\x80\x99 Home\xe2\x80\x94\nVacancy, 23 Op. Att\xe2\x80\x99y Gen. 473, 475\xe2\x80\x9376 (1901); see, e.g., United States\nv. McGee, 173 F.3d 952, 955\xe2\x80\x9356 (6th Cir. 1999); United States v. Pellicci,\n504 F.2d 1106, 1107 (1st Cir. 1974) (\xe2\x80\x9cThere is no basis for concluding\nthat one \xe2\x80\x98acting\xe2\x80\x99 as Attorney General has fewer than all the powers of that\noffice.\xe2\x80\x9d). We assume that Congress legislates with an awareness of this\npresumption, see Comm\xe2\x80\x99r v. Keystone Consol. Indus., Inc., 508 U.S. 152,\n159 (1993), and we therefore construe statutes that authorize officers to\nperform specified functions as encompassing acting officers, even if the\nstatutes do not expressly name them. See Memorandum for Richard L.\nThornburgh, Assistant Attorney General, Criminal Division, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re:\nDesignation of a Deputy Assistant Attorney General to Act as Assistant\nAttorney General at 3\xe2\x80\x934 (Sept. 9, 1975) (\xe2\x80\x9cDesignation of a Deputy Assistant Attorney General \xe2\x80\x9d); Memorandum for Stephen S. Trott, Assistant\nAttorney General, Criminal Division, from Robert B. Shanks, Deputy\nAssistant Attorney General, Office of Legal Counsel, Re: Authority of\nActing Assistant Attorney General to Authorize an Application for a Title\nIII Wiretap at 7 (July 10, 1984) (\xe2\x80\x9cAuthority of Acting Assistant Attorney\nGeneral \xe2\x80\x9d).\nApplying this principle, a 1975 opinion of our Office concluded that\nthe federal wiretap statute, 18 U.S.C. \xc2\xa7 2516 (1970), permitted an Acting\nAssistant Attorney General to authorize wiretap applications, even though\nthe statute provided for authorization by the \xe2\x80\x9c[t]he Attorney General, or\nany Assistant Attorney General specially designated by the Attorney\nGeneral.\xe2\x80\x9d See Designation of a Deputy Assistant Attorney General at 3, 6.\nOur opinion was prompted by dicta in United States v. Acon, 513 F.2d\n513, 516 (3d Cir. 1975), stating that Acting Assistant Attorneys General\ncould not authorize wiretap applications because the statute did not list\nthem. We disagreed with that view. We argued that Acon had erroneously\nrelied on United States v. Giordano, 416 U.S. 505 (1974), which had held\nthat the Attorney General\xe2\x80\x99s Executive Assistant could not approve a\n148\n\n\x0cAuthority of Acting FBI Officials to Sign National Security Letters\n\nwiretap application because the statute did not name the \xe2\x80\x9cExecutive\nAssistant\xe2\x80\x9d as among the officials to whom the Attorney General could\ndelegate his authority, and the statute\xe2\x80\x99s legislative history revealed an\nintent to restrict the delegation of authority to a small group of politically\nresponsive, senior Department of Justice officials. See Designation of a\nDeputy Assistant Attorney General at 2. Giordano was not relevant to the\nissue at hand, we explained, because whether a power may be delegated to\na particular official and whether an acting official may exercise that\npower are two distinct issues; Acon erred by failing to distinguish between\nan intent to limit delegation and the \xe2\x80\x9cextraordinary\xe2\x80\x9d intent \xe2\x80\x9cto reverse the\nnormal rule concerning authority of acting officers.\xe2\x80\x9d Id. at 4. We noted\nthat reading a delegation limitation to exclude acting officials from a\nfunction would substantially expand the restriction with relatively small\nbenefits. Id. Any such exceptions to the general rule about acting officials,\nwe also noted, would impose a significant burden on acting officials by\nmaking it difficult to determine which powers of the permanent office\nthey possess. Id. at 6 (citing Pellicci, 504 F.2d at 1107). Thus, although\nwe recognized that \xe2\x80\x9ccongressional concern for the sensitivity of a function\ncould result in not merely the commitment of that function to particular\nofficials but also in a prohibition against exercise of the function by any\nacting holders of the named offices,\xe2\x80\x9d we concluded that evidence of intent\nto limit the delegability of a function alone would not show that Congress\nalso intended to preclude acting officials from performing that function.\nId. at 4.\nA 1984 opinion of our Office reaffirmed the conclusions of our 1975\nopinion. Nonetheless, we observed that intervening court cases had extended Giordano\xe2\x80\x99s analysis to preclude Acting Assistant Attorneys General from authorizing wiretap applications. See Authority of Acting Assistant Attorney General at 1. We therefore advised caution in pursuing the\nposition that the wiretap statute permitted Acting Assistant Attorneys\nGeneral to approve wiretap applications. The wiretap statute, however,\npresented a specialized concern that is not presented by the NSL statutes.\nAs described in Giordano, the legislative history of the wiretap statute\nrevealed congressional intent to limit authority to approve wiretap applications to officials who could be held accountable through the political\nprocess, and it suggested that perhaps only Senate-confirmed presidential\nappointees are politically responsive in the relevant sense. See id. at 2\xe2\x80\x933\n149\n\n\x0c33 Op. O.L.C. 146 (2009)\n\n(citing Giordano, 416 U.S. at 520 & n.9). Thus, cases such as Acon stated\nthat \xe2\x80\x9can acting assistant attorney general [does not] meet the Supreme\nCourt\xe2\x80\x99s test of political responsiveness.\xe2\x80\x9d Acon, 513 F.2d at 516. The NSL\nstatutes, in contrast, expressly authorize the issuance of NSLs by officials\nwho are not Senate-confirmed and arguably are not politically responsive\naccording to Giordano, and the legislative history of the NSL statutes,\ndescribed in more detail below, does not reveal any special concern about\nthe political accountability of officials who issue NSLs.\nIf the NSL statutes simply named \xe2\x80\x9cDeputy Assistant Directors\xe2\x80\x9d and\n\xe2\x80\x9cSpecial Agents in Charge\xe2\x80\x9d as among the officials whom the Director\ncould designate to issue NSLs, the presumption about acting officials and\nour 1975 opinion would lead directly to the conclusion that Acting Deputy Assistant Directors and Acting Special Agents in Charge could sign\nNSLs. See Designation of Deputy Assistant Attorney General at 5 (\xe2\x80\x9c[T]he\nnaming of the office[] goes merely to the level of which delegation is\npermitted and not to the issue of whether, for an interim period, a temporary holder of that office can perform the delegated function.\xe2\x80\x9d). The text\nof these statutes, however, raises a substantial and difficult question\nwhether \xe2\x80\x9ccongressional concern for the sensitivity of \xe2\x80\x9d NSL functions has\nresulted \xe2\x80\x9cin a prohibition against exercise of [such] function[s] by any\nacting holders of the named offices.\xe2\x80\x9d Id. at 4. These statutes do not simply\nname the officials whom the Director may designate to exercise NSL\nauthorities. Instead, they reserve the exercise of NSL functions to the\nDirector \xe2\x80\x9cor his designee in a position not lower than Deputy Assistant\nDirector at Bureau headquarters or a Special Agent in Charge in a Bureau\nfield office designated by the Director.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 2709(b); 12 U.S.C.\n\xc2\xa7 3414(a)(5); 15 U.S.C. \xc2\xa7 1681u(a) (emphasis added). This language is\nunusual and might suggest a congressional intent to limit the exercise of\nNSL authority to permanent appointees, who, unlike acting officials,\nperhaps are more fittingly characterized as \xe2\x80\x9cin a position.\xe2\x80\x9d 4\n4 We are aware of two other statutes that use the formulation \xe2\x80\x9cin a position not lower\nthan.\xe2\x80\x9d See 20 U.S.C. \xc2\xa7 1232g( j ) (2006) (authorizing \xe2\x80\x9cthe Attorney General (or any\nFederal officer or employee, in a position not lower than an Assistant Attorney General,\ndesignated.by the Attorney General),\xe2\x80\x9d to seek an ex parte court order allowing access to\neducational records in connection with terrorism investigations or prosecutions (emphasis\nadded)); id. \xc2\xa7 9573(e) (similar). Neither our Office nor any court has considered the\nmeaning of these provisions.\n\n150\n\n\x0cAuthority of Acting FBI Officials to Sign National Security Letters\n\nII.\nStatutes about the designation of acting officials typically do not refer\nto such officials as being \xe2\x80\x9cin a position.\xe2\x80\x9d The Vacancies Reform Act\n(\xe2\x80\x9cVRA\xe2\x80\x9d), for example, says that an acting officer \xe2\x80\x9cshall perform the\nfunctions and duties\xe2\x80\x9d of the vacant office. 5 U.S.C. \xc2\xa7 3345(a) (2006).\nOther statutes use similar language or provide that the acting official shall\n\xe2\x80\x9cserve as\xe2\x80\x9d or shall \xe2\x80\x9cbe\xe2\x80\x9d \xe2\x80\x9cActing [Title]\xe2\x80\x9d in the event of a vacancy, absence, or disability. See, e.g., 10 U.S.C. \xc2\xa7 154(d) (2006) (providing that\n\xe2\x80\x9cthe Vice Chairman [of the Joint Chiefs of Staff] acts as Chairman and\nperforms the duties of the Chairman until a successor is appointed or the\nabsence or disability ceases\xe2\x80\x9d); 12 U.S.C. \xc2\xa7 1462a(c)(3)(B) (2006) (\xe2\x80\x9cIn the\nevent of a vacancy in the position of Director [of the Office of Thrift\nSupervision] or during the absence or disability of the Director, the Deputy Director shall serve as Acting Director.\xe2\x80\x9d); 18 U.S.C. \xc2\xa7 508 (2006) (\xe2\x80\x9cIn\ncase of a vacancy in the office of Attorney General, or, of his absence or\ndisability, the Deputy Attorney General may exercise all the duties of that\noffice.\xe2\x80\x9d) (emphases added).\nThe existence of these formulations, however, does not demonstrate\nthat by using the language \xe2\x80\x9cin a position not lower than,\xe2\x80\x9d Congress sought\nto preclude Acting Deputy Assistant Directors from exercising NSL\nfunctions. Nothing in the statutes speaks directly to the issue of acting\nofficials, and the phrase \xe2\x80\x9cin a position not lower than\xe2\x80\x9d easily could refer\nto the level to which the function may be delegated. In light of the distinction we drew in our 1975 opinion between provisions that restrict delegability and those that exclude acting officials from performing a function, and in light of the well-established presumption that acting officials\nmay exercise the same authorities as permanent officeholders, the NSL\nstatutes are best read as placing a limit on delegation, not overturning the\nordinary presumption about acting officials. We believe Congress would\nhave spoken more clearly had it intended to preclude acting officials from\nissuing NSLs. See Designation of a Deputy Assistant Attorney General at\n6; Authority of Acting Assistant Attorney General at 7.\nThe legislative history of the NSL statutes generally supports the view\nthat Congress sought to limit the delegation of NSL functions to FBI\nofficials at the level of Deputy Assistant Director or above, rather than\nto preclude Acting Deputy Assistant Directors from issuing NSLs. As\n151\n\n\x0c33 Op. O.L.C. 146 (2009)\n\noriginally enacted, 18 U.S.C. \xc2\xa7 2709, 12 U.S.C. \xc2\xa7 3414, and 15 U.S.C.\n\xc2\xa7 1681u did not expressly limit the class of officials whom the Director\ncould designate to sign NSLs. Instead, 18 U.S.C. \xc2\xa7 2709 authorized\n\xe2\x80\x9c[t]he Director . . . (or an individual within the Federal Bureau of Investigation designated for this purpose by the Director)\xe2\x80\x9d to make the certifications required for NSLs (Electronic Communications Privacy Act,\nPub. L. No. 99-508, \xc2\xa7 201, 100 Stat. 1848, 1867 (1986)), and 12 U.S.C.\n\xc2\xa7 3414 and 15 U.S.C. \xc2\xa7 1681u provided that \xe2\x80\x9cthe Director . . . (or the\nDirector\xe2\x80\x99s designee)\xe2\x80\x9d could make NSL certifications (Intelligence Authorization Act for Fiscal Year 1987, Pub. L. No. 99-569, \xc2\xa7 404, 100 Stat.\n3190, 3197 (1986); Intelligence Authorization Act for Fiscal Year 1996,\nPub. L. No. 104-93, \xc2\xa7 601(a), 109 Stat. 961, 975 (1996)). In the conference reports accompanying 12 U.S.C. \xc2\xa7 3414 and 15 U.S.C. \xc2\xa7 1681u,\nhowever, the conferees stated that the Director should not delegate NSL\nauthority below the level of Deputy Assistant Director. See H.R. Rep. No.\n99-952, at 23\xe2\x80\x9324 (1986) (Conf. Rep.) (noting that the conferees had\n\xe2\x80\x9cconcluded that, should the Director of the FBI decide to delegate his\nauthority [under 12 U.S.C. \xc2\xa7 3414], . . . he should delegate it no further\ndown the FBI chain-of-command than the level of Deputy Assistant Director\xe2\x80\x9d (emphasis added)); H.R. Rep. No. 104-427, at 37\xe2\x80\x9338 (1995) (Conf.\nRep.) (\xe2\x80\x9cAs is the case with the FBI\xe2\x80\x99s existing National Security Letter\nauthority . . . , the conferees expect, that if the Director of the FBI delegates th[ese] function[s] under [15 U.S.C. \xc2\xa7 1681u], the Director will\ndelegate [them] no further than the level of FBI Deputy Assistant Director.\xe2\x80\x9d); see also H.R. Rep. No. 99-690, pt. 1, at 17 (1986) (\xe2\x80\x9cThe Committee urges that, if the Director of the FBI delegates his function under [12\nU.S.C. \xc2\xa7 3414], he will delegate it no further down the FBI chain of\ncommand than the level of Assistant Director.\xe2\x80\x9d). The conference report\nthat accompanied 18 U.S.C. \xc2\xa7 2709 does not as clearly reveal a concern\nabout delegability, but it seems likely that Congress viewed this statute\nand the other NSL statutes as similar. See S. Rep. No. 99-541, at 44\xe2\x80\x9345\n(1986) (\xe2\x80\x9cIt is intended that the [certification] requirement will be determined by a senior FBI official at the level of Deputy Assistant Director or\nabove.\xe2\x80\x9d). 5 There is no indication in the legislative history of 18 U.S.C.\n5 Congress subsequently codified these restrictions by amending 18 U.S.C. \xc2\xa7 2709(b)\nto provide that the \xe2\x80\x9cDirector of the [FBI], or his designee in a position not lower than\n\n152\n\n\x0cAuthority of Acting FBI Officials to Sign National Security Letters\n\n\xc2\xa7 2709, 12 U.S.C. \xc2\xa7 3414, or 15 U.S.C. \xc2\xa7 1681u that Congress intended to\npreclude acting officials from issuing NSLs.\nThe legislative history of the NSL statutes does not reveal anything\nmore than intent to restrict the delegability of NSL functions. That intent\ndoes not support a conclusion that Congress meant to preclude Acting\nDeputy Assistant Directors from exercising NSL functions. In the absence of any evidence in the statutory text or legislative history of \xe2\x80\x9cextraordinary\xe2\x80\x9d congressional intent to \xe2\x80\x9creverse the normal rule concerning\nauthority of acting officers,\xe2\x80\x9d Designation of a Deputy Assistant Attorney\nGeneral at 4, we conclude that 18 U.S.C. \xc2\xa7 2709, 12 U.S.C. \xc2\xa7 3414, and\n15 U.S.C. \xc2\xa7 1681u permit Acting Deputy Assistant Directors at FBI\nheadquarters to exercise NSL functions.\nIII.\nWe also conclude that the NSL statutes permit Acting Special Agents\nin Charge to exercise NSL functions. As a preliminary matter, we note\nthat the language in the NSL statutes, \xe2\x80\x9cin a position not lower than,\xe2\x80\x9d may\nnot apply to Special Agents in Charge of FBI field offices. It would be\nawkward and redundant for the NSL statutes to permit NSLs to be signed\nby the Director\xe2\x80\x99s \xe2\x80\x9cdesignee in a position not lower than . . . a Special\nAgent in Charge in a Bureau field office designated by the Director.\xe2\x80\x9d\n(Emphasis added.) To avoid surplusage, we could read these statutes as\nauthorizing the exercise of NSL authorities by the director\xe2\x80\x99s (1) \xe2\x80\x9cdesignee\nin a position not lower than Deputy Assistant Director at Bureau headquarters\xe2\x80\x9d or (2) \xe2\x80\x9ca Special Agent in Charge in a Bureau field office designated by the Director.\xe2\x80\x9d See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001).\nOn this reading, because the \xe2\x80\x9cin a position not lower than\xe2\x80\x9d language\nwould not apply to Special Agents in Charge, they would simply be\nnamed among the officials whom the Director could designate to exercise\nNSL authorities. Under the ordinary presumption about acting officials,\ntherefore, the NSL statutes would authorize Acting Special Agents in\nDeputy Assistant Director,\xe2\x80\x9d may sign an NSL. Pub. L. No.103-142, \xc2\xa7 1, 107 Stat. 1491,\n1491 (1993). Section 3414 of title 12 and 15 U.S.C. \xc2\xa7 1681u were later amended to\nconform to 18 U.S.C. \xc2\xa7 2709. See Uniting and Strengthening America by Providing\nAppropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No.\n107-56, \xc2\xa7 505, 115 Stat. 272, 365\xe2\x80\x9366 (2001).\n\n153\n\n\x0c33 Op. O.L.C. 146 (2009)\n\nCharge to sign NSLs. See Designation of a Deputy Assistant Attorney\nGeneral at 3\xe2\x80\x934 (\xe2\x80\x9c[T]he description of the class of officials who are authorized to perform certain acts also includes acting officials, even if they\nare not specifically mentioned[.]\xe2\x80\x9d); see also McGee, 173 F.3d at 955\xe2\x80\x9356;\nPellicci, 504 F.2d at 1107; Commissioners of Soldiers\xe2\x80\x99 Home\xe2\x80\x94Vacancy,\n23 Op. Att\xe2\x80\x99y Gen. 473, 475\xe2\x80\x9376 (1901).\nEven if the phrase \xe2\x80\x9cin a position not lower than\xe2\x80\x9d applies to Special\nAgents in Charge, however, we would still read the statute as limiting\ndelegation only, rather than overturning the presumption that acting\nofficers may exercise the full powers of the offices in which they temporarily serve. Like the legislative history discussed above, the legislative\nrecord behind the addition of Special Agents in Charge to the NSL statutes does not show any congressional concern about the issuance of NSLs\nby acting officials. When Congress added Special Agents in Charge to the\nNSL statutes, it sought to expand, not restrict, the class of officials who\nmay be authorized to issue NSLs. In 2001, Congress amended the NSL\nstatutes to permit the Director to designate a \xe2\x80\x9cSpecial Agent in Charge in\na Bureau field office,\xe2\x80\x9d in addition to headquarters officials at the level of\nDeputy Assistant Director or above. Pub. L. No. 107-56, \xc2\xa7 505, 115 Stat.\nat 365\xe2\x80\x9366. In hearings on the proposed legislation, a Department of Justice official explained that the proposed amendment would \xe2\x80\x9callow special\nagents in charge\xe2\x80\x94that is, the top-ranking FBI field agent in each of the\nFBI\xe2\x80\x99s 56 field offices\xe2\x80\x94to issue one of these letters rather than requiring\nthe letter to be sent out by an Assistant Director at headquarters.\xe2\x80\x9d S. 1448,\nThe Intelligence to Prevent Terrorism Act of 2001 and Other Legislative\nProposals in the Wake of the September 11, 2001 Attacks: Hearing Before\nthe S. Select Comm. on Intelligence, 107th Cong. 24 (2001) (statement of\nDavid Kris, Associate Deputy Attorney General). A section-by-section\nanalysis similarly explained that, \xe2\x80\x9cbecause [NSLs] require the signature of\na high-ranking official at FBI headquarters, they often take months to be\nissued. . . . In many cases, counterintelligence and counterterrorism investigations suffer substantial delays while waiting for NSLs to be prepared,\nreturned from headquarters, and served. The section would streamline the\nprocess of obtaining NSL authority.\xe2\x80\x9d Administration\xe2\x80\x99s Draft AntiTerrorism Act of 2001: Hearing Before the H. Comm. on the Judiciary,\n107th Cong. 57\xe2\x80\x9358 (2001). In view of the statutory presumption about\nacting officials and this indication of congressional intent to expand the\n154\n\n\x0cAuthority of Acting FBI Officials to Sign National Security Letters\n\nclass of officials who may issue NSLs, we think that 18 U.S.C. \xc2\xa7 2709, 12\nU.S.C. \xc2\xa7 3414, and 15 U.S.C. \xc2\xa7 1681u permit Acting Special Agents in\nCharge to sign NSLs. 6\nDANIEL L. KOFFSKY\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\nIt might be argued that Acting Deputy Assistant Directors and Acting Special Agents\nin Charge should not be permitted to issue NSLs under the NSL statutes because the\nDirector could designate relatively low-level employees to serve in these roles. See 136\nCong. Rec. 35,806, 35,817 (Oct. 26, 1990) (statement of Sen. Boren) (introducing\namendment to NSL statutes that \xe2\x80\x9cadds the requirement that the Director\xe2\x80\x99s designee be of\nat least the rank of Deputy Assistant Director . . . due, in part, to the finding that critical\ndecisions [concerning NSLs] were made at low levels at FBI Headquarters\xe2\x80\x9d). We do not\nthink this possibility undermines our interpretation of the NSL statutes. Congress vested\nthe authority to issue NSLs in Deputy Assistant Directors and Special Agents in Charge\ndesignated by the Director, and there is no indication of congressional intent to preclude\nissuance of NSLs by officials acting in these positions. Moreover, as the FBI Memorandum notes (at pages 1 and 7), the Director selects permanent and acting Deputy Assistant\nDirectors and Special Agents in Charge from the same pool of FBI employees (special\nagents and members of the FBI Senior Executive Service). This practice further supports\nthe view that the issuance of NSLs by Acting Deputy Assistant Directors and Special\nAgents in Charge should not raise any special concern under the NSL statutes.\n6\n\n155\n\n\x0c'


b"December 15, 1978\n\n78-65 MEMORANDUM FOR THE ATTORNEY\nGENERAL\nNational Security Mail Covers\xe2\x80\x94Constitutional\nChallenge\xe2\x80\x94Federal Bureau of Investigation\n(39 CFR 233.2(d)(2)(H))\nYou have asked us to review the effect of District Judge Whipple\xe2\x80\x99s opinion\non remand in Paton v. LaPrade, 469 F. Supp. 773 (D. N.J. 1978) on the\ncurrent use of mail covers in cases being investigated by the Federal Bureau of\nInvestigation (FBI) under the Foreign Intelligence and Foreign CounterIntelligence guidelines. We believe that the opinion, standing alone, requires\nno change in present practice. A Supreme Court decision to the same effect\nwould, of course, require the termination of any national security mail covers\nauthorized under existing Postal Service regulations.\nThe plaintiff, Lori Paton, sued the FBI in 1973 seeking, inter alia , damages\nfor injuries caused by the interception of a letter she had written to the Socialist\nWorkers Party (SWP). Her letter was intercepted under an FBI-authorized mail\ncover. She further sought a declaration that the postal regulation under which\nthe SWP mail cover was conducted, 39 CFR \xc2\xa7 233.2(d)(2)(ii) (1977), was\nunconstitutional.1\nThe complaint was originally dismissed. Paton v. LaPrade, 382 F. Supp.\n1118 (D. N.J. 1974). On appeal the Third Circuit held that the complaint stated\nan actionable claim for damages and Paton had standing to challenge the\nconstitutionality of the mail cover regulation, 524 F. (2d) 862 (3d Cir. 1975).\nOn remand Judge Whipple declared the regulation unconstitutional on its face.\nHe reached his conclusion as follows: First, the SWP mail cover, as authorized\nby the challenged regulation, infringed on political associational freedoms\n'The regulation reads:\n\xe2\x80\x9c (2) The Chief Postal Inspector, or his designee, may order mail covers under the\nfollowing circumstances:\n\n***\n\n(ii) When written request is received from any law enforcement agency wherein the\nrequesting authority stipulates and specifies the reasonable grounds that exist which\ndemonstrate the mail cover is necessary to (A) protect the national security . . . .\xe2\x80\x9d\n\n290\n\n\x0cprotected by the First Amendment. Buckley v. Valeo, 424 U.S. 1 (1976);\nNAACP v. Alabama, 357 U.S. 449 (1958). Second, because the regulation had\nthat effect, it had to pass muster under \xe2\x80\x9c strict\xe2\x80\x9d constitutional scrutiny; that is,\nthe regulation had to be justified by a compelling Government interest that was,\nin fact, served by its operation. Buckley v. Valeo, supra, 424 U.S. at 64.\nFinally, Judge Whipple concluded that the Government had demonstrated no\ncompelling interest because of the vagueness of the term \xe2\x80\x9c national security\xe2\x80\x9d\nand the consequent \xe2\x80\x9c overbreadth\xe2\x80\x9d of the regulation.\nFor purposes of this memorandum we assume that Judge Whipple might\nhave properly concluded that the challenged regulation as applied in Ms.\nPaton\xe2\x80\x99s case was not justified by any compelling Government interest, and\ntherefore unconstitutional. We believe that Judge Whipple\xe2\x80\x99s analysis of the\nregulation was incorrect because of his failure to consider the constitutionality\nof the regulation as applied.\nJudge Whipple found the challenged postal regulation overbroad because it\nwas \xe2\x80\x9c susceptible to impermissible applications\xe2\x80\x9d (see 524 F. (2d) at 779) and\nnot \xe2\x80\x9c susceptible to a narrowing construction,\xe2\x80\x9d (524 F. (2d) at 782) which\ncould withstand strict scrutiny. If the term \xe2\x80\x9c national security\xe2\x80\x9d were confined to\ncases in which there was some foreign power involvement, we believe the\nregulation would be justified by a compelling Government interest. This\nconclusion is compatible with the distinction drawn by the Supreme Court in\nUnited States v. United States District Court, 407 U.S. 297, 322 and n. 20\n(1972), between domestic security cases and cases involving foreign powers or\ntheir agents. The Court held that a warrant was required in a domestic security\ncase not involving a foreign power. Because the Third Circuit recognized the\nGovernment\xe2\x80\x99s compelling interest in the conduct of foreign affairs and held that\nthe President has power to conduct warrantless electronic surveillance to gather\nforeign intelligence information, United States v. Butenko, 494 F. (2d) 593 (3d\nCir. 1974), we think it doubtful that the Third Circuit would uphold Judge\nWhipple\xe2\x80\x99s decision as written.\nEven assuming the SWP mail cover in this case was unconstitutional, Judge\nWhipple\xe2\x80\x99s analysis of the regulation on its face adjudicated questions not\nrequisite to the protection of any party\xe2\x80\x99s rights. Had he first addressed the\nconstitutionality of the regulation as applied, he could have afforded the\nplaintiff complete relief without deciding issues not presented by the facts. The\nSupreme Court\xe2\x80\x99s hesitancy in resorting to overbreadth analysis counsels such\nan approach: \xe2\x80\x9c [W]hen considering a facial challenge it is necessary to proceed\nwith caution and restraint, as invalidation may result in unnecessary interfer\xc2\xad\nence with a [government] regulatory program,\xe2\x80\x9d Erznoznik v. City of Jacksonville,\n422 U.S. 205, 216 (1975). The Court has refrained, for example, from relying\non the asserted overbreadth of breach-of-the-peace statutes to overturn\npetitioners\xe2\x80\x99 criminal convictions in cases in which such convictions were\nthemselves unconstitutional under the First Amendment or unsupported by any\nevidence. See, Broadrick v. Oklahoma, 413 U.S. 601, 613-14 (1978), and\ncases cited therein. The Supreme Court, moreover, has resisted application of\noverbreadth analysis in cases involving \xe2\x80\x9c statutes regulating conduct in the\n291\n\n\x0cshadow of the First Amendment, but doing so in a neutral, noncensorial\nmanner.\xe2\x80\x9d Broadrick v. Oklahoma, supra, at 614. Like the statute upheld in\nBroadrick, the regulation challenged by Paton is \xe2\x80\x9c neutral\xe2\x80\x9d and \xe2\x80\x9c noncensorial,\xe2\x80\x9d\nalthough it clearly implicates First Amendment liberties. However, unlike the\nBroadrick statute, the postal regulation does not proscribe any conduct. Paton\nwas free to engage in any \xe2\x80\x9c speech\xe2\x80\x9d she desired; the Government made a record\nof her \xe2\x80\x9c speech,\xe2\x80\x9d it did not prohibit it. Thus, her case presents a more\ncompelling circumstance for the court to avoid overturning the challenged\nregulation for overbreadth.\nBecause we believe Judge Whipple\xe2\x80\x99s broad conclusion is incorrect, we think\nit would be lawful to continue to approve and implement mail covers under the\nexisting FBI Foreign Intelligence and Counter-Intelligence guidelines. This\nconclusion rests,' of course, on the assumption that the District Court will not\nenjoin the FBI or the Postal Service.\nJo h n M . H a rm o n\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n292\n\n\x0c"


b'Presidential Succession and Delegation\nin Case of Disability\n[The follow ing m em orandum discusses issues relating to presidential succession and dele\xc2\xad\ngation o f presidential pow er in the event o f a tem porary disability o f the President. It\nexamines the mechanism established by the T w enty-F ifth A m endm ent by w hich the\nV ice President assumes the pow ers and duties o f the Office o f the President, and the\nconditions under w hich the President resum es his Office after his disability is ended. It\nalso examines the circum stances in w hich the President may delegate his pow ers to\no ther officials, including the V ice President, w hen it is not considered necessary or\nappropriate to invoke the provisions o f the T w enty-F ifth A m endm ent. It concludes\nthat functions vested in the President by the C onstitution are generally not delegable\nand must be perform ed by him; how ever, any pow er vested in the President by statute\nmay be delegated to subordinate officers, unless the statute affirm atively prohibits such\ndelegation. Finally, the m em orandum briefly review s the form and m ethod o f delega\xc2\xad\ntion. A n appendix contains a historical sum m ary o f p rio r presidential disabilities and the\nresulting effect on presidential authority.]\n\nApril 3, 1981\nM EM ORANDUM FO R T H E ATTO RN EY G E N E R A L\nAs a result o f the recent assassination attempt on President Reagan,\nthis Office has researched several issues that relate to presidential suc\xc2\xad\ncession and the delegation of presidential power in the event of a\ntemporary disability of the President. This memorandum sets forth our\nconclusions on the relevant legal issues.\n\nI. Presidential Succession\nThe Twenty-Fifth Amendment to the U.S. Constitution establishes a\nmechanism for presidential succession in the event that the President\nbecomes unable to perform his constitutional duties. Succession may\ntake place in tw o ways. First, if the President is able and willing to do\nso, he may provide for the temporary assumption of the powers and\nduties of his office by the Vice President by \xe2\x80\x9ctransmit[ting] to the\nPresident pro tempore of the Senate and the Speaker of the House of\nRepresentatives his written declaration that he is unable to discharge\nthe powers and duties of his office.\xe2\x80\x9d U.S. Const., Amend. XXV, \xc2\xa73.\nWhen the President transmits such a declaration, his powers and duties\ndevolve upon the Vice President as Acting President1 until the Presi\xe2\x80\x99There appears to be no requirement that the Vice President resign from his position as Vice\nPresident or take the President\'s oath of office to serve as \xe2\x80\x9c Acting President.\xe2\x80\x9d As a general rule, an\nContinued\n\n91\n\n\x0cdent transmits an additional written declaration stating that he has\nbecome able to perform his responsibilities.\nSecond, if the President is unable or unwilling to transmit a declara\xc2\xad\ntion o f his inability to perform his duties, the Vice President will\nbecome Acting President 2 if the Vice President and a majority of the\n\xe2\x80\x9cprincipal officers of the executive departments\xe2\x80\x9d transmit to the Presi\xc2\xad\ndent pro tem pore of the Senate and the Speaker of the House a written\ndeclaration that the President is unable to discharge the powers and\nduties o f this Office. See U.S. Const., Amend. XXV, \xc2\xa74. The term\n\xe2\x80\x9cprincipal officers of the executive departments\xe2\x80\x9d is intended to mean\n\xe2\x80\x9cthe Cabinet,\xe2\x80\x9d although the term \xe2\x80\x9cCabinet\xe2\x80\x9d has no precise legal defini\xc2\xad\ntion.3\nIf, during the period in which the Vice President is Acting President,\npursuant to the provisions of Section 4 of the Twenty-Fifth Amend\xc2\xad\nment, the President submits to the President pro tempore of the Senate\nand the Speaker of the House a written declaration that no inability\nexists, he will resume the powers of his office unless, within four days, the\nVice President and a majority of the Cabinet heads transmit an addi\xc2\xad\ntional written declaration stating that the President is unable to dis\xc2\xad\ncharge his powers and duties. A t that point, Congress must decide the\n\nofficial w ho is \xe2\x80\x9cacting\xe2\x80\x9d in a certain capacity need not vacate the office previously held or take the\noath o f office ordinarily taken by th e person whose duties he has temporarily assumed This conclu\xc2\xad\nsion is supported by Presidential Inability and Vacancies in the Office o f Vice President: Hearings Before\nthe Subcomm. on Constitutional Amendments o f the Senate Comm, on the Judiciary, 88th Cong., 2d Sess\n215, 232 (1965); Presidential Inability: Hearings Before the House Comm, on the Judiciary, 89th Cong.,\n1st Sess 87 (1965). See also J. Feerick, The Twenty-Fifth Amendment, 199 (1976) (Feerick) T he rule\nas to resignation a n d /o r taking the President\xe2\x80\x99s oath appears to be different for those officials further\ndow n the line o f succession See 3 U.S.C. \xc2\xa7 19. This memorandum does not address the issues involved\nin the devolution of powers beyond the position of Vice President.\n2 T he Vice President will evidently continue to exercise the duties of Vice President while he\nserves as Acting President. The V ice President would, however, lose his title as President of the\nSenate. See 111 Cong. Rec. 3270 (1965) (Sen. Saltonstall); Feerick at 199\n3 See S. Rep. No. 66, 89th Cong., 1st Sess. 2 (1966) We believe that the \xe2\x80\x9c principal officers of the\nexecutive departm ents,\xe2\x80\x9d for purposes of the Twenty-Fifth Amendment, include the Secretary of State,\nSecretary o f Treasury, Secretary o f Defense, A ttorney General, Secretary of the Interior, Secretary of\nAgriculture, Secretary o f Commerce, Secretary of Labor, Secretary of Health and Human Services,\nSecretary o f Housing and Urban Development, Secretary of Transportation, Secretary o f Energy, and\nSecretary o f Education. That conclusion is supported by the legislative history See 111 Cong. Rec.\n7938 (1965) (Rep. Waggoner); id. at 7941 (Rep Poff); id. at 7944-45 (Rep. Whitener); id. at 7953, 7954\n(Rep. Gilbert). See also Feerick at 202-03; 5 U S.C. \xc2\xa7 101. As a practical matter, and in order to avoid\nany doubt regarding the sufficiency o f any given declaration, it would be desirable to obtain the assent\no f a sufficient number of officials to satisfy any definition o f the term \xe2\x80\x9c principal officers of the\nexecutive departm ents.\xe2\x80\x9d\nT here is some indication that acting heads o f departments may participate in the presidential\ndisability determination. Although th e legislative history is conflicting, the House Judiciary Commit\xc2\xad\ntee\'s report supports this conclusion, see H R. Rep No. 203, 89th Cong., 1st Sess. 3 (1965), as do the\nSenate debates, see 111 Cong. Rec. 15,380 (1965) (Sen. Kennedy); id. at 15,583 (1965) (Sen. Javits); and\na leading com m entator on the Amendment reaches the same conclusion. See Feenck at 203. Contra,\n111 Cong Rec. 3284 (1965) (Rep. Hart). The contrary view proceeds on the assumption that such a\ndecision should be made only by persons whom the President personally selected for his Cabinet. Such\npersons are presumably intimately familiar with the President and are of relatively equal status with\nthe other decisionmakers.\n\n92\n\n\x0cissue within specified time limits. See U.S. Const., Amend. XXV, \xc2\xa74,\npara. 2.4\n\nII. Presidential Delegation\nUnder circumstances in which it is not considered necessary or\nappropriate to invoke the provisions of the Twenty-Fifth Amendment,\nit may nonetheless be desirable for the President to delegate certain\npowers to other officials, including the Vice President. Under statute, 3\nU.S.C. \xc2\xa7 301, and under the Constitution, see Myers v. United States, 272\nU.S. 52, 117 (1926), the President has broad authority to delegate\nfunctions vested in him by law. At the same time, the Constitution and\ncertain statutory provisions impose limits on the President\xe2\x80\x99s power to\nconfer his authority on subordinate officials. The nature and extent of\nthose limits are considered in this section.\nA. Constitutional Limitations on the President\xe2\x80\x99s Power to Delegate His\nFunctions\n\nAs early as 1855, Attorney General Cushing articulated the general\nrule that the functions vested in the President by the Constitution are\nnot delegable and must be performed by him. 7 Op. A tt\xe2\x80\x99y Gen. 453,\n464-65 (1855). The Attorney General opined:\nThus it may be presumed that he, the man discharging\nthe presidential office, and he alone, grants reprieves and\npardons for offenses against the United States, not another\nman, the Attorney General or anybody else, by delegation\nof the President.\nSo he, and he alone, is the supreme commander-in-chief\nof the Army and Navy of the United States, and of the\nmilitia o f the several States, when called into the actual\nservice o f the United States. That is a power constitution\xc2\xad\nally inherent in the person of the President. No act of\n4 Under the Amendment, we believe that there is no requirement that the requisite written declara\xc2\xad\ntions of disability be personally signed by the Vice President and a majority of the heads of executive\ndepartments. The only requirements are that their assent to the declaration be established in a reliable\nfashion and that they direct that their names be added to the document. Moreover, the Vice President\nand the Cabinet heads may send separate declarations if necessary. See Presidential Inability: Hearings\nBefore the House Comm, on the Judiciary, 89th Cong., 1st Sess 79-80 (1965). Finally, we believe that\nunder both \xc2\xa7\xc2\xa7 3 and 4 o f the Amendment, the transfer o f authonty to the Vice President takes effect\n\xe2\x80\x9cimmediately" when the declaration is transmitted or sent, and is not delayed until receipt of the\ndocument by the President pro tempore of the Senate and the Speaker of the House. Although the\nquestion is not free from doubt, the language and the history of the Amendment tend to support this\nconclusion. See S. Rep. No 66, 89th Cong., 1st Sess. 12-13 (1965); H.R. Rep. No 203, 89th Cong., 1st\nSess. 13 (1965). But see H.R. Rep. No. 564, 89th Cong., 1st Sess. 3 (statement of Managers on the Part\nof the House to the effect that \xe2\x80\x9cafter receipt of the President\xe2\x80\x99s written declaration of his inability.. . .\nsuch powers and duties would then be discharged by the Vice President as Acting President\xe2\x80\x9d) The\nbetter construction would allow the devolution of powers \xe2\x80\x9cimmediately\xe2\x80\x9d (the w ord used in \xc2\xa7 4 o f the\nTwenty-Fifth Amendment) upon transmittal No meaningful purpose would be served by awaiting the\narrival of the document. The alternative construction allows a more rapid transition of presidential\npower when the national interests require it.\n\n93\n\n\x0cCongress, no act even o f the President himself, can, by\nconstitutional possibility, authorize or create any military\nofficer not subordinate to the President.\nSo he appoints and removes ambassadors and other\nofficers o f the United States, in the cases and with the\nqualifications indicated by the Constitution.\nSo he approves or disapproves of bills which have\npassed both Houses of Congress: that is a personal act of\nthe President, like the vote o f a Senator or a Representa\xc2\xad\ntive in Congress, not capable of performance by a Head\nof Department or any other person.\nA study prepared by this Office in the 1950s reaches the same\nconclusions. This study and our research suggest that the following are\nnondelegable functions o f the President:\n1.\n\nThe power to nominate and appoint the officers of the\nUnited States to the extent provided in Article II, \xc2\xa7 2,\nclause 2 o f the Constitution.\n2. The power to approve or return legislation pursuant to\nArticle I, \xc2\xa7 7, clauses 2 and 3, and the power to call\nCongress into special session or to adjourn it according\nto Article II, \xc2\xa7 3.\n3. The power to make treaties by and with the advice and\nconsent o f the Senate. U.S. Const., Art. II, \xc2\xa7 2, cl. 2. It\nshould be noted, however, that the power to negotiate\ntreaties and the power to enter into executive agree\xc2\xad\nments may be delegated. See 7 Op. A tt\xe2\x80\x99y Gen., supra, at\n465.\n4. The power to grant pardons. U.S. Const. Art. II,\n\xc2\xa72, cl. 1.\n5. The power to remove purely executive presidential ap\xc2\xad\npointees. This power is vested in the President as an\nincident o f his appointment power. Myers v. United\nStates, 272 U.S. at 119.\n6. T he power to issue executive orders. Only the President\ncan issue formal executive orders and proclamations. He\ncan, however, delegate the power to issue many orders\nwhich cover substantially the same subject matter as\nexecutive orders and proclamations as long as they are\nnot so named.\n7. T he powers of the President as Commander-in-Chief of\nthe Army and Navy. U.S. Const., Art. II, \xc2\xa7 2, cl. 1. In\nview of Article I, \xc2\xa7 8, clauses 12 and 13, which state\nthat Congress shall have the power to raise and support\n94\n\n\x0cthe Army and to provide and maintain a Navy, many of\nthe President\xe2\x80\x99s powers as Commander-in-Chief are\nstatutory in part. To conclude that the President may\nnot delegate his ultimate constitutional responsibilities as\nCommander-in-Chief is not to suggest that he is the\nonly officer of the government who may make military\ndecisions in time of emergency, when immediate re\xc2\xad\nsponse may be necessary. The President may make\nformal or informal arrangements with his civilian and\nmilitary subordinates, in order to ensure that the chain\nof command will function swiftly and effectively in time\nof crisis. O f course, every military officer must be sub\xc2\xad\nordinate to the President.\nB. Statutory Limitations on the President\xe2\x80\x99s Power to Delegate His\nFunctions\n\nThe foregoing discussion sets forth the general rule that the President\nmay not delegate inherent powers that are conferred on him by the\nConstitution. On the other hand, he may generally delegate powers that\nhave been conferred on him by Congress. Congress has so provided in\n3 U.S.C. \xc2\xa7 301, which states:\nThe President of the United States is authorized to\ndesignate and empower the head of any department or\nagency in the executive branch, or any official thereof\nwho is required to be appointed by and with the advice\nand consent of the Senate, to perform without approval,\nratification, or other action by the President (1) any func\xc2\xad\ntion which is vested in the President by law, or (2) any\nfunction which such officer is required or authorized by\nlaw to perform only with or subject to the approval,\nratification, or other action of the President: Provided,\nThat nothing contained herein shall relieve the President\no f his responsibility in office for the acts of any such head\nor other official designated by him to perform such func\xc2\xad\ntions. Such designation and authorization shall be in w rit\xc2\xad\ning, shall be published in the Federal Register, shall be\nsubject to such terms, conditions, and limitations as the\nPresident may deem advisable, and shall be revocable at\nany time by the President in whole or in part.\nCongress has further provided, in 3 U.S.C. \xc2\xa7 302, that:\nThe authority conferred by this chapter shall apply to\nany function vested in the President by law if such law\n95\n\n\x0cdoes not affirmatively prohibit delegation of the perform\xc2\xad\nance of such function as herein provided for, or specifi\xc2\xad\ncally designate the officer or officers to whom it may be\ndelegated. This chapter shall not be deemed to limit or\nderogate from any existing or inherent right of the Presi\xc2\xad\ndent to delegate the performance of functions vested in\nhim by law, and nothing herein shall be deemed to re\xc2\xad\nquire express authorization in any case in which such an\nofficial would be presumed in law to have acted by au\xc2\xad\nthority or direction of the President.\nAs a result o f these statutes, the President is authorized to delegate\nany pow er vested in him by statute unless the statute \xe2\x80\x9caffirmatively\nprohibits] delegation.\xe2\x80\x9d In our view, a statute should be construed as an\n\xe2\x80\x9caffirmative\xe2\x80\x9d prohibition o f delegation only if it prohibits delegation\nexpressly or by unmistakable implication. T he purpose of \xc2\xa7\xc2\xa7 301 and\n302 is to facilitate the functioning o f the Executive by specifically\nauthorizing delegation in the great majority o f cases. To this end, \xc2\xa7 301\nstates a general rule in favor of delegation. In light of the breadth of\nthis general rule, the exception in \xc2\xa7 302 should be narrowly construed.\nThe same inference can be drawn from the fact that Congress took care\nin \xc2\xa7 302 not to derogate from any \xe2\x80\x9cexisting or inherent right of the\nPresident to delegate the performance of functions vested in him by\nlaw .\xe2\x80\x9d\nStatutes which do expressly or by unmistakable implication prohibit\ndelegation are subject to the possible constitutional objection that the\npow er to delegate is inherent in the Executive and may not be re\xc2\xad\nstricted by Congress. T he issue is a difficult one and has never been\nresolved in court. In our view, the wiser course is to comply with any\nclear congressional intention to prohibit delegation, in order to avoid\ntesting the limits of this constitutional question, unless circumstances\nimperatively require delegation.\nIn the brief time we have had to review the matter, we have discov\xc2\xad\nered only a very few statutes that expressly or by unmistakable implica\xc2\xad\ntion prohibit delegation. W hat follows is a description of categories of\nstatutes that fall o r may fall within this general class.\n1. Statutes Explicitly Prohibiting Delegation\nT he clearest cases are those in which the statute explicitly prohibits\ndelegation. An example is found in the Export Administration A ct of\n1979, 50 U.S.C. \xc2\xa7 2403(e) (Supp. Ill 1979), which provides that:\nT he President may delegate the power, authority, and\ndiscretion conferred upon him by this A ct to such depart\xc2\xad\nments, agencies, or officials of the Government as he may\nconsider appropriate, except that no authority under this\n96\n\n\x0cA ct may be delegated to, or exercised by, any official of\nany department or agency the head of which is not ap\xc2\xad\npointed by the President, by and with the advice and\nconsent of the Senate. The President may not delegate or\ntransfer his power, authority, and discretion to overrule\nor modify any recommendation or decision made by the\nSecretary [of Commerce], the Secretary of Defense, or\nthe Secretary of State pursuant to the provisions of this\nAct.\n2. Statutes Conferring Nondelegable Functions\nAn unmistakable congressional intent to prohibit delegation may also\nbe inferred from statutes that impose on the President a duty o r power\nto exercise a nondelegable function. For example, it is commonly\nthought that only the President may issue an executive order o r procla\xc2\xad\nmation. Statutes that authorize the President to take an action, but\nrequire him to act by way of executive order or proclamation, can\ntherefore be read as precluding delegation. An example is found in 22\nU.S.C. \xc2\xa7 441(a):\nWhenever the President . . . shall find that there exists a\nstate of war between foreign states, and that it is neces\xc2\xad\nsary to promote the security or preserve the peace of the\nUnited States or to protect the lives of citizens of the\nUnited States, the President shall issue a proclamation\nnaming the states involved; and he shall, from time to\ntime by proclamation, name other states as and when they\nbecome involved in the war.\n3. Statutes Implicitly Prohibiting Delegation\nA broad range of statutes confer powers on the President but do not\nstate in terms or in the legislative history whether those powers are\ndelegable. In some instances, the character or importance of the powers\nin question, or other special circumstances, may constitute a sufficient\nindication of a legislative intent to prohibit delegation.\nIn the brief time available, we have been unable to reach any firm\nconclusions regarding particular statutes in this category. In general, it\nwould appear that statutory powers that have been exercised by the\nPresident himself on a consistent and longstanding basis are more likely\nthan others to be held nondelegable. An example might be the Presi\xc2\xad\ndent\xe2\x80\x99s statutory power to enter into or terminate trade agreements with\ncertain nations under 19 U.S.C. \xc2\xa7 1351.\n97\n\n\x0cA second special circumstance that can give rise to an inference of\nnondelegability occurs when Congress gives authority to an agency but\nsubjects that authority to a requirement of presidential approval. In this\ncircumstance, it can be argued that a delegation o f the President\xe2\x80\x99s\napproval authority back to the agency would subvert the evident legis\xc2\xad\nlative intent to assure review by someone outside the agency, while a\ndelegation to anyone else would conflict with the congressional intent\nto centralize primary administrative responsibility in the agency. For an\nexample o f such a statute, see \xc2\xa7 12(k) o f the Securities Exchange Act of\n1934, 15 U.S.C. \xc2\xa7 781(k).5\nIII. Delegable Fumctioms\nAll remaining functions o f the President may be delegated to subordi\xc2\xad\nnate officers. M any statutes explicitly authorize delegation. See, e.g., 22\nU.S.C. \xc2\xa7 2381 (delegation o f certain foreign affairs powers). In the\nabsence o f specific authorization, the general delegation statute, 3\nU.S.C. \xc2\xa7\xc2\xa7301, 302, explicitly authorizes delegation except where pre\xc2\xad\ncluded by statute. It is beyond the scope o f this memorandum to\ndescribe the full extent o f the presidential powers and responsibilities\nthat may be delegated.6 In general, powers which may be delegated\ninclude those o f approval, authorization, and assignment; powers to\nestablish and convene certain administrative commissions, to designate\nresponsible officers, and to make certain factual determinations; powers\nto direct that certain actions be taken, to fix compensation of officers,\nto prescribe certain rules and regulations, and to make recommenda\xc2\xad\ntions or reports.\nIt bears repetition that the President may not delegate his power to\ndelegate his own functions. This is, in our view, a function that is\nconstitutionally vested in the President personally. The President may\ndelegate his powers if he is capable o f a conscious decision to do so. If,\nhow ever, he is incapable o f such a decision, delegation cannot occur. If\nsuch a situation continues for a substantial period o f time, it would\nappear desirable to initiate procedures for presidential succession under\nthe Tw enty-Fifth Amendment.7\n\n5 W e emphasize that the above examples are entirely tentative; it may well be that, upon further\nexamination o f the statutes and their legislative histories, this Office would conclude that Congress did\nnot intend to prohibit delegation.\n6 F o r a description o f the President\xe2\x80\x99s general authonty, see President\'s Advisory Council on\nExecutive Organization, The Powers and Responsibilities of the President (1970).\n7It might be possible for the President to delegate his powers contingent upon the occurrence o f a\nspecified event such as a certification by the President\xe2\x80\x99s personal physician that the President is\ntem porarily incapable o f making a conscious decision. We would emphasize, however, that this\nprocedure should not be used if its effect is contrary to the intent of the procedures for presidential\nsuccession contained in the Twenty-Fifth Amendment.\n\n98\n\n\x0cIV. Form and Method of Delegation\nW henever a presidential function or power is delegable, it may be\ndelegated to the head of any department or agency in the Executive\nBranch, or any official thereof, if the official is appointed with the\nadvice and consent of the Senate. 3 U.S.C. \xc2\xa7301. By statute, such a\ndelegation is ordinarily accomplished through the preparation and pub\xc2\xad\nlication o f a written order or memorandum. The relevant document is\nnormally signed by the President personally; but there is no express\nstatutory requirement to that effect. In our opinion, the relevant statu\xc2\xad\ntory requirements are satisfied as long as the President actually makes\nthe delegation in question and causes an appropriate written memorial\nto be prepared and published. He need not sign the document by his\nown hand. See United States v. Fletcher, 148 U.S. 84-92 (1893); 7 Op.\nA tt\xe2\x80\x99y Gen. at 472-73 (1855); 22 Op. A tt\xe2\x80\x99y Gen. 82, 84 (1898). More\xc2\xad\nover, the statute does not purport to restrict the President\xe2\x80\x99s constitu\xc2\xad\ntional power to delegate his powers and functions. 3 U.S.C. \xc2\xa7 302. We\nbelieve that a President may determine in an exigent circumstance that\nit is necessary to delegate a power or function without immediate\ncompliance with the normal formal requisites (i.e., publication of a\nwritten document). Such a delegation is effective if it is necessary to\nenable the President to discharge his constitutional duty.\nT\n\nheodore\n\nB.\n\nO\n\nlso n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\nAttachment\n\n99\n\n\x0cAPPENDIX\nP r io r P\n\nr e s id e n t ia l\n\nD\n\nis a b il it ie s\n\nThis is a summary of prior presidential disabilities and the resulting\neffect on presidential authority.1\n1. James Madison suffered from a severe fever in the summer of 1813\nin the midst o f disputes w ith Congress on how to pay for the W ar of\n1812. I. Brant, James Madison: Commander-in-Chief, 1812-1836, at\n184-94 (1961). Daniel W ebster reported at one point that Madison was\ntoo weak to read resolutions brought to his bedside. Id. at 186-87. Both\nHouses of Congress became \xe2\x80\x9cengrossed\xe2\x80\x9d for over a month in specula\xc2\xad\ntion on the succession,2 since the Vice President was aged and there\nwas a vacancy in the position of President pro tempore of the Senate. J.\nFeerick, T he Twenty-Fifth Amendment 4-5 (1976) (Feerick). Madison\nrecovered, however, and no legislation was passed nor were formal\narrangements for the delegation or transfer of power implemented.\n2. William Henry Harrison was inaugurated on M arch 4, 1841, and\ndied o f pneumonia on A pril 4, 1841. His illness was so short that the\nquestion of inability apparently did not arise.3\n3. James A. Garfield was wounded on July 2, 1881, by an assassin\nand died 80 days later on September 19, 1881. Vice President Chester\nA. A rthur did not act in his stead. A rthur refused to do so because of a\nfear, shared by many constitutional scholars of the time, that once he\nhad assumed the powers and duties o f the office, they would \xe2\x80\x9cdevolve\non the Vice President\xe2\x80\x9d permanently, leaving him unable to turn the\nreins back to the President. U.S. Const., Art. II, \xc2\xa7 1, cl. 6. See S. Rep.\nM a te ria l consulted included the N.Y. Times, S. Rep. No. 66, 89th Cong., 1st Sess. (1965), and\nhearings held in 1958. Presidential Inability: Hearings on S.J. Res. 100, S.J. Res. 133, S.J. Res. 134, S.J.\nRes. 141, S.J. Res. 143, S.J Res. 144, S. 238, and S. 3113 Before the Subcomm. on Constitutional\nAmendm ents o f the Senate Comm, on the Judiciary, 85th Cong., 2d Sess. (1958) [hereinafter cited as 1958\nHearings]. A list o f articles on presidential inability can be found in the 1958 Hearings, at 41-42.\n2 T he first succession act was passed in 1792. A ct of M arch 1, 1792, \xc2\xa7\xc2\xa79-11, 1 Stat. 239.\nUnsuccessful efforts to change this statute occurred in 1820, 1856, and 1881.\n3 W hen Harrison died, Secretary of State Daniel Webster questioned whether the Constitution\nmeant that Vice President John T yler became \xe2\x80\x9cA cting President,\xe2\x80\x9d rather than the President. Tyler\ndisagreed and took the oath as President, thus establishing the MTyler precedent\xe2\x80\x9d that the Vice\nPresident does succeed to the Office o f the President when the prior occupant dies. 1958 Hearings at\n149.\nT he deaths o f Z achary Taylor (July 9, 1850) and Abraham Lincoln (April 15, 1865) were appar\xc2\xad\nently so swift that their Vice Presidents (Millard Fillmore, Andrew Johnson) assumed control without\ntrouble. Feerick at 7-8.\n\n100\n\n\x0cNo. 66, 89th Cong. 1st Sess. 6 (1965) (1965 Senate Report). Although\nthe entire Cabinet believed Garfield to be unable to carry out his\nduties,4 four of them, including the Attorney General, agreed with\nA rthur\xe2\x80\x99s analysis. Secretary of State James G. Blaine was in fact criti\xc2\xad\ncized for attempting to usurp presidential powers during Garfield\xe2\x80\x99s\nlengthy illness. 1958 Hearings at 149-50.5\n4. G rover Cleveland had two major operations for cancer of the\nmouth in July 1893. He told almost no one, including Vice President\nAdlai Stevenson. The two operations took place on a friend\xe2\x80\x99s yacht,\nwith Cleveland unconscious and strapped to a chair propped against the\nmast. Feerick at 11-12. The complete secrecy was due to fears that the\ncountry might suffer an economic panic if it knew the President had\ncancer. The truth was apparently suppressed until 1917. Feerick at 12.6\n5. William McKinley was wounded on Friday, September 6, 1901.\nHe underwent emergency surgery and his doctors issued optimistic\nstatements about his recovery. So positive was the outlook that Vice\nPresident Theodore Roosevelt and the Cabinet members who had gath\xc2\xad\nered in Buffalo over the weekend began to disperse. M. Leech, In the\nDays of McKinley 598-99 (1959). \xe2\x80\x9c[T]he Vice-President was so firmly\nconvinced that the emergency was over that he went to join his family\nat a camp in the Adirondacks, twelve miles from telegraph or tele\xc2\xad\nphone.\xe2\x80\x9d Id. at 599. When McKinley began to fail, a guide was sent up\ninto the mountains to fetch Roosevelt. Although he rushed back,\nRoosevelt arrived to take the oath of Office 12 hours after M cKinley\xe2\x80\x99s\ndeath on September 14.\n6. W oodrow Wilson was incapacitated from a stroke for about eight\nmonths of his second term. A t no time did Vice President Thomas R.\nMarshall attempt to take over. See 1958 Hearings at 19. The hesitation\nwas due to a fear that such action would be viewed as an effort to oust\nWilson permanently. When he recovered, Wilson forced Secretary of\nState Lansing, who had called Cabinet meetings and suggested that\nMarshall take over as Acting President, to resign, charging him with\ndisloyalty. Id.\n1.\nFranklin Roosevelt was in declining health during his last year in\noffice, and died on April 12, 1945. Vice President Harry S. Truman had\nhad only tw o conversations with Roosevelt since the inauguration,\nneither dealing with disability. Feerick at 17. Perhaps as a reaction to\nthis, Truman supported a new succession statute, A ct of June 25, 1948,\nPub. L. No. 80-771, 62 Stat. 672, 677-78 (1948).\n4 Garfield was able to conduct only one minor piece of business\xe2\x80\x94the signing of an extradition\npaper Feerick at 9\n8 Arthur, who succeeded Garfield, suffered from an increasingly debilitating kidney disease while in\noffice. Although he gradually reduced his schedule, he does not appear to have become completely\nincapacitated. Feerick at 10-11.\n6 It was the death of Cleveland\xe2\x80\x99s first Vice President, Thomas A. Hendricks, in 1885, while\nCongress was out o f session, which accelerated passage of the Presidential Succession Act, Pub. L.\nNo. 49-1, 24 Stat. 1 (1886)\n\n101\n\n\x0c8. D w ight D. Eisenhower suffered three major illnesses while in\noffice\xe2\x80\x94a heart attack (1955), ileitis (1956), and a \xe2\x80\x9cmild\xe2\x80\x9d stroke (1957).\nFrom the first, Vice President Richard Nixon consulted with the Cabi\xc2\xad\nnet and developed a procedure for relaying important matters to the\nPresident. A W hite House request for an opinion on the temporary\ndelegation o f presidential power was not acted upon because Attorney\nGeneral Brownell felt there were sufficient legal arrangements in place\nto handle day-to-day operations.\nEisenhow er was very troubled by the implications of the disability\nproblem during each of his illnesses. He asked the Department of\nJustice to study the problem and recommend a solution, urged Con\xc2\xad\ngress to act, and entered into an informal agreement with Mr. Nixon.\nFeerick at 20-22. The agreement provided that:\n1. In the event of inability the President would\xe2\x80\x94if\npossible\xe2\x80\x94so inform the Vice President, and the Vice\nPresident would serve as Acting President, exercising the\npowers and duties of the office until the inability had\nended.\n2. In the event o f an inability which would prevent the\nPresident from so communicating with the Vice Presi\xc2\xad\ndent, the Vice President, after such consultation as seems\nto him appropriate under the circumstances, would decide\nupon the devolution of the powers and duties of the office\nand would serve as Acting President until the inability\nhad ended.\n3. The President, in either event, would determine\nwhen the inability had ended and at that time would\nresume the full exercise o f the powers and duties of the\nOffice.\n1965 Senate Report at 7 .7 Although Congress did hold hearings, no\nperm anent action was taken.8\n9. Lyndon B. Johnson was hospitalized four times, the first time\nbeing for a major bout w ith the flu (January 23-27, 1965).9 In October\n1965, Johnson was hospitalized for gall bladder surgery.10 He was\n7See also N.Y. Times* March 4, 1958, at 1, col. 2. Presidents Kennedy and Johnson entered into\nsimilar agreements with their Vice Presidents. 1965 Senate Report at 7. N.Y. Times, Jan. 28, 1965, at\n13, col. 1. T he Johnson-Humphrey agreement was identical to the Eisenhower-Nixon agreement. The\nKennedy agreem ent differed only in that it urged the Vice President to consult with the Cabinet and\nthe A ttorney General i4as a matter o f wisdom and sound judgm ent.\xe2\x80\x9d 1965 Senate Report at 7.\n8See 1958 Hearings, supra, and Hearings before the Special Subcommittee to Study Presidential\nDisability o f the House Committee on the Judiciary, 84th Cong., 2d Sess. (1956).\n9 A t the time, Vice President H ubert H Humphrey stated that there had been discussions of when\nhe w ould take over and a copy of the Johnson-Humphrey accord was made available to the press on\nJanuary 28. See note 7, supra, and text.\n10T he accord was again noted by the press and columnist A rthur Krock urged the states to ratify\nthe T w enty-Fifth Amendment.\n\n102\n\n\x0canesthetized for three to four hours, after which Press Secretary\nMoyers announced that Johnson was again able to make presidential\ndecisions.11\nThe same pattern was repeated in November 1967, when Johnson\nunderwent simultaneous surgery for a polyp on his vocal cord and\nrepair of a ventral hernia. He was anesthetized for about an hour and a\nhalf. Note was made of the agreement that could make Humphrey\n\xe2\x80\x9cActing President\xe2\x80\x9d and columnist Tom Wicker urged that the TwentyFifth Amendment be ratified.\nIn December 1968, Johnson was again hospitalized for the flu. The\npapers, however, said little other than that he worked on government\npapers on one day of his stay.\n10. Richard M. Nixon was hospitalized from July 12-20, 1973, for\nviral pneumonia. The President\xe2\x80\x99s press office said that he would be able\nto do necessary work and that he was not sick enough to require the\nVice President to make special arrangements. In an interview, Vice\nPresident Spiro T. Agnew said that there was no agreement between\nthe President and him on what to do in the event of Nixon\xe2\x80\x99s disability\nand that the issue had never been discussed.\nAlthough there were persistent rumors about Nixon\xe2\x80\x99s health during\nthe months prior to his resignation, the only White House announce\xc2\xad\nment was an acknowledgment that the President suffered from phlebi\xc2\xad\ntis. The operation on his leg did not occur until September 23, 1974,\nafter his resignation.\n11. Jimmy Carter\xe2\x80\x99s scheduled surgery for hemorrhoids in late De\xc2\xad\ncember 1978, was cancelled. Preparations for the Vice President to\nassume power under \xc2\xa7 3 of the Twenty-Fifth Amendment were also\ncancelled.\nL\n\narry\n\nL . S im m s\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n11 Citing recent history, Johnson had urged Congress to act on the disability problem in his State of\nthe Union address in January, 1965. The proposed Twenty-Fifth Amendment was sent to the states in\nJuly 1965.\n\n103\n\n\x0c'


b'Reimbursing Justice Department Employees for Fees\nIncurred in Using Private Counsel Representation\nat Congressional Depositions\nT h e D e p a r tm e n t o f J u s tic e may re im b u rs e its e m p lo y e e s fo r le g a l fe e s th e y in c u r in u s in g p riv a te\nc o u n s e l r e p r e s e n ta tio n at c o n g re ss io n a l d e p o s itio n s in c irc u m s ta n c e s w h e re th e D e p a rtm e n t\nw a s p la n n in g to p ro v id e D e p a rtm e n t c o u n se l fo r o ffic ia l c a p a c ity te s tim o n y b u t th e c o n g re s \xc2\xad\ns io n a l c o m m itte e re fu s e d to p e r m it D e p a rtm e n t c o u n se l to b e p re sen t.\n\nT h e D e p a r tm e n t s h o u ld m ak e in d iv id u a liz e d in q u irie s to d e te rm in e w h e th e r th e re p re s e n ta tio n o f\np a r tic u la r e m p lo y e e s in clu d es re p re s e n ta tio n o f p u re ly p e rs o n a l in te re s ts th a t s h o u ld n o t be\nre im b u r s e d .\n\nSeptember 27, 1990\nM e m o r a n d u m O p in io n f o r t h e D e p u t y a t t o r n e y G e n e r a l\n\nYou have asked for our opinion as to whether the Department may reim\xc2\xad\nburse Department employees for legal fees they incur in using private counsel\nrepresentation at depositions that are part of the investigation by the House\nJudiciary Committee into the Department\xe2\x80\x99s automated data processing pro\xc2\xad\ncurem ent practices.1 For the reasons set forth below, we conclude that the\nDepartment may reimburse the employees. You have not asked us to make\nthe individualized inquiries necessary to determine whether the representa\xc2\xad\ntion o f particular employees includes representation o f purely personal\ninterests that should not be reimbursed. We do note, however, that we are\nunaware at this time of any such interests. The Civil Division concurs in the\nanalysis and conclusions contained in this opinion.\n\nI. Background\nThe House o f Representatives Committee on the Judiciary is conducting\nan extensive oversight investigation into the Department\xe2\x80\x99s automated data\nprocessing (\xe2\x80\x9cADP\xe2\x80\x9d) procurement practices, with particular attention to the\nInslaw and Project Eagle procurements.2 Early in its investigation, the Com\xc2\xad\nm ittee requested interviews of D epartm ent em ployees concerning the\n1T h is o p in io n d o e s not ap p ly to the sp ec ia l c ircu m stan ces o f a form er D epartm ent e m ployee w ho is\nc u rre n tly the su b jec t o f an Inspector G e n eral investigation.\n2 B e c a u se th e p rin c ip a l focus of the in v estig atio n is on the Inslaw p rocurem ent, w e w ill re fe r to the\nin v e stig a tio n as th e \xe2\x80\x9c In slaw in vestigation.\xe2\x80\x9d\n\n132\n\n\x0cDepartments handling of these procurements. In light o f the oversight pur\xc2\xad\npose of the interviews (i.e., to obtain information from the Department in\norder to determine what legislative action, if any, Congress should take with\nrespect to the Department\xe2\x80\x99s ADP procurement practices), the Department\ndetermined that it was in the Department\xe2\x80\x99s interests to make the employees\navailable for the interviews.\nFor the same reasons, the Department treated the interviews as being\ngiven in the employees\xe2\x80\x99 official rather than individual capacities and applied\nits longstanding policy that when Department employees are asked in their\nofficial capacities to give oral testimony for a congressional investigation\n(whether at a hearing, interview or deposition), a Department counsel or\nother representative will normally accompany the witness. When the De\xc2\xad\npartment informed the Committee of its interest in having Department counsel\npresent during the interviews, the Committee objected, stating that the De\xc2\xad\npartm ent presence would represent a conflict of interest and it might\ndiscourage the employees from speaking candidly or otherwise have a \xe2\x80\x9cchill\xc2\xad\ning effect\xe2\x80\x9d on them.\nAfter a period of discussion, the Committee and the Department reached\nagreement on the conditions of the employee interviews, with the Depart\xc2\xad\nment acquiescing to the committee\xe2\x80\x99s insistence that the interviews take place\nwithout Department counsel being present. The Department made it clear\nthat its agreement to make an exception to the longstanding Department\npolicy was based on the specific circumstances of the Inslaw investigation\nand that these interviews should not be viewed as precedent for future over\xc2\xad\nsight investigations of the Department by the Committee. The Committee\nstaff proceeded to interview the employees without Department (or any other)\ncounsel present.\nSubsequently, the Committee informed the Department of its intention to\nconduct depositions of certain Department employees. The depositions were\nto differ in form from the previously conducted interviews principally in\nthat the witnesses would testify under oath and the testimony would be\nrecorded. In light of these differences, the Department gave renewed con\xc2\xad\nsideration to whether it should adhere to the longstanding Department policy\nand insist that Department counsel be present at the depositions. When the\nDepartment preliminarily raised its concerns with the Committee, the Com \xc2\xad\nmittee indicated that it would adhere to its prior position of not permitting\nDepartment counsel to be present and that it was prepared to subpoena the\nemployees (in which case, it asserted, the House rules would only allow\nprivate counsel to be present to advise the witness of his constitutional rights).\nYou then decided that the Departm ent would again acquiesce to the\nCommittee\xe2\x80\x99s position and not insist that Department counsel be present but\nthat if any employee wanted counsel at his deposition, the employee could\nretain private counsel and the Department would reimburse the employee.\nYour decision that the Department would reimburse employees for their\nprivate counsel fees was based on the specific circumstances presented. These\n133\n\n\x0ccircumstances include that the Committee is not permitting the Department\nto adhere to its longstanding policy of providing Department counsel when\nemployees give congressional testimony in their official capacities, that it is\nnot fair to expect employees to pay for private counsel when testifying in\ntheir official capacities, that there are no pending criminal investigations\ninvolving the employees, and that there is no other divergence between the\ninterests of the Department and the employees.\nAt the time you made your decision, the Civil Division and this Office\nhad orally advised you that the Department has legal authority to make such\nreimbursement. You have asked that this advice be confirmed in a written\nopinion from this Office. We have prepared this opinion in consultation\nwith the Civil Division.\n\nII. Discussion\nThe vast majority of Department reimbursements of private counsel fees\ninvolve payment, pursuant to the Department\xe2\x80\x99s representation guidelines, to\nem ployees who seek representation in their individual capacity; in these\ncases the acts being questioned are within the scope of the employees\xe2\x80\x99 em\xc2\xad\nployment but the Department has some conflict of interest. On rare occasions\nreimbursement has also been made for employees who need representation\nin their official capacities but for institutional reasons the Department must\nseek to represent them indirectly through reimbursed private counsel. The\npresent situation is one of the latter occasions, due to the refusal of the\nJudiciary Committee to permit the Department to follow its longstanding\npolicy that Department counsel should be present at official capacity testi\xc2\xad\nmony for congressional investigations.3\nThe general principles on Departmental authority that apply in these cir\xc2\xad\ncumstances are well established:\n\n\xe2\x80\x99 F o r y o u r in fo rm a tio n , the D epartm ent\xe2\x80\x99s rep resen tatio n g u id elines a re inapplicable here b ecau se they\nonly\ng o v e rn the legal representation o f em p lo y ees \xe2\x80\x9c sued or subpoenaed in [their] indi\xc2\xad\nvidual capacities." 2 8 C .F R . \xc2\xa7 50 .1 5 (a). R ep resen tation o f em ployees in th e ir offi\xc2\xad\ncial capacities is provided autom atically, w ithout reference to the representation guide\xc2\xad\nlines. S in ce su its o r subpoenas a g ain st em p lo y ees in their o fficial capacities are tanta\xc2\xad\nm o u n t to su its o r subpoenas a g a in st the g o v ern m en t itself, o fficial capacity re p re sen \xc2\xad\nta tio n is v irtu ally alw ays p ro v id e d by g o v ern m en t attorneys. By contrast, w hen an\ne m p lo y e e is sued o r subpoenaed in his individual capacity, th e re is the po ten tial fo r\nc o n flic t b e tw ee n th e individual interest o f the em p loyee a n d the interests o f other\ne m p lo y e es. . . . [T he] rep resen tatio n guid elin es are d e signed to set stan d a rd s for\nd e te rm in in g I) w h e th er to p ro v id e individual cap a c ity r e p re s e n ta tio n ,. . . and if so. 2)\nw h e th e r to p ro v id e that rep resen tatio n by g o v ern m en t counsel or by priv ate counsel\nre ta in e d a t g o v e rn m e n t expense.\n\nM em o ra n d u m fo r the D ep u ty Attorney G e n eral from T h eo d o re B. O lso n , A ssistant A ttorney G en eral,\nO ffic e o f L e g a l C o u n se l, Re: Reimbursement o f Anne M. Burford fo r Private Counsel Fees , at 3 n .3 (M ay\n3, 1 983) (\xe2\x80\x9c B u rfo rd M em o ran d u m \xe2\x80\x9d).\n\n134\n\n\x0cThe practice of retaining and paying private attorneys was\nbom of necessity. From time to time, cases arise in which it\nis awkward from an institutional or professional standpoint\nfor the Attorney General to represent government employees\ndirectly, through DOJ attorneys, even though it is clear that\nrepresentation would be in the interests of the United States.\n. . . [I]n such cases . . . the Attorney General has \xe2\x80\x9cimplied\nauthority\xe2\x80\x9d to provide representation . . . through a mechanism\nthat will enable him to resolve the professional difficulty. U s\xc2\xad\ning his general authority to contract for services that are\nnecessary in the performance of his statutory functions, he\nmay hire private lawyers to do indirectly what it would be\nawkward or inappropriate for the United States to do directly\nthrough DOJ lawyers.4\nThe conclusion that the Attorney General has such implied authority is based\non that fact that he possesses not only representational authority, see 28\nU.S.C. \xc2\xa7 517, but executive authority as well, see 28 U.S.C. \xc2\xa7 509, and the\nlatter may be used in furtherance of the former.5\nA number of opinions of this Office specifically hold that where Depart\xc2\xad\nment representation would ordinarily be provided in a congressional\ninvestigation but is inappropriate under the specific circumstances, the D e\xc2\xad\npartment may reimburse a government employee for legal fees incurred using\nprivate counsel.6 Indeed, one opinion addressed a situation that was strik\xc2\xad\ningly similar to the present situation. During the course of an investigation\nby the Permanent Subcommittee on Investigations of the Senate Committee\non Governmental Affairs into the Labor Department\xe2\x80\x99s handling of Teamsters\xe2\x80\x99\n\xe2\x80\x98 M em o ran d u m fo r E d w ard C. S ch m u lts, D eputy A ttorney G en eral, from T heodore B. O lso n , A ssistant\nA ttorney G eneral, O ffice o f Legal C ounsel, Re: Civil Division s Recommendations Concerning R eim \xc2\xad\nbursement o f Legal Expenses, at 2-3 (June 24, 1981).\n\xe2\x80\x99 See M em o ran d u m fo r G len E. Pom m erening, A ssistant A ttorney G eneral for A d m inistration, from\nA ntonin S calia, A ssistan t A tto rn ey G eneral, O ffice o f Legal C o u n sel, Re: Authority f o r Employment o f\nOutside Legal Counsel, at 6 (M ar. 4, 1976) (\xe2\x80\x9cPom m erening M em o randum \xe2\x80\x9d ) (\xe2\x80\x9c [I]nterests o f the U n ited\nStates, as w ell as in terests o f the individual Federal em ployees, are at stake. B ecause o f p o ssible c o n \xc2\xad\nflicts o f in terest, rep resen tatio n by D epartm ent em ployees is not feasible. In these circ u m stan c e s, . . .\nthe A ttorney G en eral can use his general au th o rity as the head o f the D epartm ent, see 28 U .S .C . 509, to\nfu rth er the . . . in te re sts o f the U nited States by retain in g p riv ate attorneys.\xe2\x80\x9d ); M em orandum for Jam e s\nA . B arnes, G en eral C o u n sel, Environm ental Protection A gency, from T h eo d o re B. O lso n , A ssistant\nA ttorney G en eral, O ffice o f L egal C ounsel, Re: Payment o f Private Counsel Fees Incurred by Anne M.\nBurford, at 3 (M ar. 12, 1984) ( \xe2\x80\x9cW hen the D epartm ent o f J u stic e pro v id es re p re sen ta tio n to ag en cy\ne m ployees, it d o es so pu rsu an t to 28 U .S.C \xc2\xa7 517 . . . . " ) .\n\xe2\x80\x98 See B urford M em o ran d u m , n.3 (the g o v ern m en t may reim burse fo rm er A d m in istra to r o f EPA for\np riv ate co u n sel fees in cu rred in connection w ith co n g ressio n al invest:g a tio n s into m a n a g em e n t and\na ctivities o f E PA ), M em o ran d u m for J. Paul M cG rath, A ssistant A ttorney G eneral, C ivil D ivision, fro m\nT h eo d o re B. O lso n , A ssistant A ttorney G eneral, O ffice o f L eg al C ounsel, Re: Reimbursing Norman\nEdward Perkins f o r Attorney\'s Fees (M ar. 15, 1982) (\xe2\x80\x9c Perkins M em orandum \xe2\x80\x9d ) (Ju stice D ep artm en t\nm ay reim burse L a b o r D epartm ent em ployee for private counsel legal e xpenses in cu rred in te stim ony\nbefore S enate su b co m m itte e investigative hearing); Pom m erening M em orandum , n.5 (Ju stice D e p art\xc2\xad\nm ent m ay retain p riv ate counsel fo r em ployees o f various agencies in c onnection w ith cong ressio n al\nhearings and civil litig atio n ).\n\n135\n\n\x0cUnion matters, many Labor Department employees testified before the Sub\xc2\xad\ncommittee while accompanied by Justice Department counsel. However, the\nChairman of the Subcommittee, Senator Nunn, objected to Norman Edward\nPerkins and one other Labor Department employee being accompanied by\nJustice Department counsel because the Subcommittee suspected these indi\xc2\xad\nviduals of criminal conduct. The apparent rationale for the Subcommittee\nposition on Department representation was that the Subcommittee \xe2\x80\x9cwished\nto avoid a conflict of interest which could have arisen if Justice later de\xc2\xad\ncided to prosecute Mr. Perkins.\xe2\x80\x9d Perkins Memorandum at 3. Upon discussing\nthe m atter with Senator Nunn, Attorney General Civiletti acquiesced to the\nSenator\xe2\x80\x99s preference and agreed that Perkins and the other employee would\nnot be accompanied by Department counsel. Id. at 2. Perkins retained\nprivate counsel (id. at 1) and reimbursement o f his counsel fees was ap\xc2\xad\nproved by this Office\xe2\x80\x99s opinion (id. at 6).\nThe Perkins situation was basically the same as the present one. \xe2\x80\x9cIn the\nabsence o f the Nunn-Civiletti agreement, it appears that Perkins would have\nbeen represented by a Justice Department attorney, as were the other Labor\nDepartm ent employees.\xe2\x80\x9d Id. at 3. Likewise, Department counsel would be\nrepresenting the employees at the Judiciary Committee depositions but for\nthe D epartm ent\xe2\x80\x99s agreement (by acquiescing to the Committee\xe2\x80\x99s position)\nthat Departm ent counsel would not be present at the employee interviews or\ndepositions. In addition, in the two situations Senator Nunn and the Judi\xc2\xad\nciary Committee were each concerned that Department representation would\npresent a conflict of interest. Although the Department in fact had no con\xc2\xad\nflict o f interest in the Perkins situation because no criminal investigation\nhad been initiated (see id. at 4), and the Department has no conflict of\ninterest in the present situation because the employees are appearing in their\nofficial capacities and there is no pending criminal investigation, in both\ncases the Department acquiesced to the congressional committee\xe2\x80\x99s position\nand made an exception to the longstanding policy that government counsel\naccompany government employee witnesses.\nAlthough the Department\xe2\x80\x99s representation guidelines do not apply in this\nsituation, see n.3 supra, reimbursing the employees is consistent with the\nprinciples underlying the guidelines. In reaching this conclusion, we adopt\nthe analysis we used in the Perkins matter.7 We noted there that the guide\xc2\xad\nlines authorize use of private counsel where the employee is the subject of a\nfederal criminal investigation or the representation would involve asserting a\nposition that conflicts with a government position. We indicated that while\nthere was no ongoing criminal investigation or conflicting positions, \xe2\x80\x9c[b]oth\nthe concern o f possible criminal conduct and the possible conflict arising\n7 In a c o m m e n t th at underscores the fa c tu a l sim ilarities betw een the Perkins m atter and the present\nsitu a tio n , w e n o ted in th e Perk in s opinion that "[b je c a u se denial o f re presentation appears to h ave been\nb a se d n o t on an in te rp re ta tio n of the J u s tic e D e p artm e n t\'s R epresentation G u id e lin e s, but ra th e r on\nu rg in g o f a U n ite d S ta te s Senator, the u s u a l grounds fo r p erm itting re presentation by private c o u n se l at\nfe d e ra l e x p e n s e are n o t re a d ily applicable.\xe2\x80\x9d Id. at 3.\n\n136\n\n\x0cfrom Justice Department representation of Perkins appear to have motivated\nthe agreement between Senator Nunn and Attorney General Civiletti . . .\n[and] therefore . . . reimbursement . . . can be supported by the principles\nunderlying [the guidelines].\xe2\x80\x9d Id. at 5. Similarly, in the present situation,\neven though there are no pending criminal investigations or other conflicting\npositions, the Judiciary Committee has asserted that the Department has a\nconflict of interest, and in light of that position the Department has acqui\xc2\xad\nesced to the Committee\xe2\x80\x99s insistence that Department counsel not be present.\nFinally, we should make it clear that this opinion addresses only the\nquestion you asked: whether as a general matter the Department has author\xc2\xad\nity to reimburse Department employees for private counsel fees in connection\nwith the Judiciary Committee depositions. To answer that question in the\naffirmative, it has only been necessary to find that sufficient governmental inter\xc2\xad\nests are at stake in all of the depositions to justify representation by Department\ncounsel \xe2\x80\x94 and when the Committee objected to the presence of Department\ncounsel, representation by private counsel paid for by the Department.\nYou have not asked us to make the individualized inquiries necessary to\ndetermine whether the representation of any particular employee to whom\nthis opinion applies may involve \xe2\x80\x9cpurely personal\xe2\x80\x9d as well as governmental\ninterests. Thus, we do not opine on \xe2\x80\x9cwhat, if any, portion of the representa\xc2\xad\ntion\xe2\x80\x9d of particular employees should not be \xe2\x80\x9cprovided by Government attorneys\nor at Government expense.\xe2\x80\x9d Perkins Memorandum at 4.8 We do note, how\xc2\xad\never, that it would appear at this time that any personal interests are merely\nincidental to the governmental interests. After looking into the matter thor\xc2\xad\noughly, the Civil Division knows of no personal or official wrong-doing of\nwhich the employees could fairly be accused. Like all witnesses before\nCongress, the employees have \xe2\x80\x9cpersonal\xe2\x80\x9d interests such as being treated fairly,\nhaving a full and fair opportunity to respond, and avoiding being made an\nunfair target of congressional criticism; beyond that, these witnesses are ap\xc2\xad\npearing before Congress only because they did their jobs as Department\nemployees. These personal interests would not appear to be of the kind this\nOffice has previously identified as \xe2\x80\x9cpurely personal.\xe2\x80\x9d9\n\nCONCLUSION\nWe conclude, under these specific and unusual circumstances, that the\nDepartment may reimburse Department employees for legal fees they incur\nin connection with their representation by private counsel at the depositions\n\n*See also Representation o f White House Employees , 4B Op. O .L .C . 749, 7 50 (1980) (\xe2\x80\x9c W hite H ouse\nM em oran d u m \xe2\x80\x9d ) (\xe2\x80\x9c No g o vernm ent attorney, and no private atto rn ey retained at g o v e rn m e n t e x p en se\nm ay represent th e personal interests o f W hite H ouse em p lo y ees in connection w ith the S e n a te in v e sti\xc2\xad\ngatio n \xe2\x80\x9d )\n9See W hite H ouse M em orandum , 4B O p. O .L .C . at 753 (\xe2\x80\x9c [TJhe interests in avoiding fed eral c rim in a l\np rosecu tio n , c iv il liability to the U nited States o r adverse ad m in istrative action by a federal a g en cy are\nc learly personal rather than governm ental in terests.\xe2\x80\x9d ).\n\n137\n\n\x0cbeing conducted by the Judiciary Committee. You have not asked us to make\nthe individualized inquiries necessary to determine whether the representa\xc2\xad\ntion of particular employees includes representation of purely personal interests\nthat should not be reimbursed. We do note, however, that we are unaware at\nthis time of any such interests, The Civil Division concurs in our analysis\nand conclusions.\nJOHN O. M cGINNIS\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n138\n\n\x0c'