b"The President\xe2\x80\x99s Authority to Regulate Extensions of\nCredit Under the Credit Control Act\nU nder the C redit C ontrol A ct, the President is authorized to regulate and control\nextensions o f credit w henever he determ ines that such action is necessary for the\npurpose o f preventing o r controlling inflation generated by the extension of credit in an\nexcessive volume.\nProposed executive ord er announcing the President\xe2\x80\x99s determ ination, and proposed imple\xc2\xad\nm enting regulations o f the Board o f G overnors o f the Federal Reserve System impos\xc2\xad\ning controls on certain kinds o f consum er credit, on money m arket funds, and on\nm anaged liabilities, are w ithin the authority granted the President and the Board under\nthe C redit C ontrol Act.\n\nMarch 13, 1980\nT\n\nhe\n\nS ecretary\n\nof th e\n\nT\n\nreasury\n\nMy D e a r M r. S e c r e t a r y : I am responding to your March 13, 1980,\nrequest for my opinion concerning a recommendation by the Presi\xc2\xad\ndent\xe2\x80\x99s economic advisers that the President, by executive order, author\xc2\xad\nize the Board of Governors of the Federal Reserve System to regulate\nand control certain extensions of credit under the Credit Control Act,\n12 U.S.C. \xc2\xa7 1901 et seq. You have forwarded to me, for my information,\ncopies of an executive order proposed by the President\xe2\x80\x99s advisers, and\nof regulations proposed by the Board to effect certain credit controls\nthat the Chairman of the Board of Governors has informed you the\nBoard will consider issuing if the order is executed. You have asked me\nwhether the recommended order would constitute a proper exercise of\nthe President\xe2\x80\x99s authority under the Act, and, if the President issues the\norder, whether the proposed credit control measures transmitted to you\nby the Chairman would be within the Board\xe2\x80\x99s authority under the Act.\nUnder 12 U.S.C. \xc2\xa7 1904, the President may authorize the Board \xe2\x80\x9cto\nregulate and control any or all extensions of credit\xe2\x80\x9d whenever he:\ndetermines that such action is necessary or appropriate for\nthe purpose of preventing or controlling inflation gener\xc2\xad\nated by the extension of credit in an excessive volum e,. . .\nThe proposed executive order would announce such a determination by\nthe President, would authorize the Board both to regulate or control\nthree types of extensions of credit and to prescribe appropriate require\xc2\xad\nments as to the keeping of records with respect to all forms of credit,\n4\n\n\x0cand would order that such authorizations remain effective for an indefi\xc2\xad\nnite period and until revoked by the President. Each of these measures,\nas explained below, constitutes a proper exercise of the President\xe2\x80\x99s\nauthority under the Act.\nAlthough the Act includes no particular requirements for the form of\nthe President\xe2\x80\x99s determination under \xc2\xa7 1904, the incorporation of his\ndetermination in an executive order that specifies the Board\xe2\x80\x99s conse\xc2\xad\nquent authorities is entirely appropriate. Further, the President is em\xc2\xad\npowered by the Act, \xc2\xa7\xc2\xa7 1904, 1905, to determine what types of exten\xc2\xad\nsions of credit are appropriately subject to the Board\xe2\x80\x99s regulation and\nto authorize the Board to implement any or all of the regulatory\nmeasures specified in \xc2\xa7 1905. This is evident from both the language of\n\xc2\xa7\xc2\xa7 1904 and 1905, and from the legislative history of the A ct,1 which\namply reflect Congress\xe2\x80\x99 intent to give the President the most flexible\nauthority possible in mounting, through the control of credit, an appro\xc2\xad\npriate attack on inflation.2\nFinally, \xc2\xa7 1905 provides that the Board\xe2\x80\x99s authority to implement\ncredit controls shall exist \xe2\x80\x9cfor such period of time as [the President]\nmay determine.\xe2\x80\x9d This authorizes the President to specify the duration,\nwhether definite or indefinite, of any control authority, which he would\nbe doing if he issues the order as drafted, see \xc2\xa7 1-106.\nThe Chairman of the Board has informed you that, if the President\nexecutes the order, the Board will consider issuing three regulations to\neffect certain credit controls. These credit controls would be within the\nauthority granted by the order. They would specifically address the\nfollowing kinds of extensions of credit\xe2\x80\x94consumer credit, activities of\n\xe2\x80\x9cmoney market funds\xe2\x80\x9d and similar entities, and the managed liabilities\nof commercial banks that are not members of the Federal Reserve\nSystem\xe2\x80\x94the regulation of which is authorized by the order. Further,\nbecause the order does not limit the kinds of controls that may be\nimposed on these extensions of credit, the controls would be within the\nBoard\xe2\x80\x99s authority if they are anywhere authorized among the controls\nlisted in 12 U.S.C. \xc2\xa7 1905. I conclude, as explained below, that each of\nthe proposed controls is among the measures authorized by that section.\n'S e e H. R ep. N o. 755, 91st C o n g ., 1st Sess. 11 (1969); H . C o n f. R ep . N o . 769, 91st C o n g ., 1st Sess.\nII (1969); 115 C o n g . R ec . 39649-697, 402 3 9 -2 4 4 , passim (1969), e sp e c ia lly at 39660 (re m a rk s o f R ep .\nSisk); 39669, 40241 (re m a rk s o f R ep. P atm an ); 39676 (re m a rk s o f R ep. B arrett); 39683 (re m a rk s o f R ep.\nO ttin g e r); 39684 (re m a rk s o f R ep . M atsu n ag a ); 39673, 39674, 40240, 40242 (re m a rk s o f R ep . S u lliv an ).\n2 D e s p ite th e flexibility o f th e a u th o rity v e s te d b o th in th e P re sid e n t a n d th e B o ard o f G o v e r n o r s o f\nth e F e d e ra l R e s e rv e S y stem , th e A c t d o e s n o t tra n sg re s s th e c o n s titu tio n a l p ro h ib itio n a g a in st e x c e s \xc2\xad\nsiv e d e le g a tio n s o f le g islativ e p o w e r. T h e d e te rm in a tio n re q u ire d o f th e P re s id e n t, th a t a c tio n \xe2\x80\x9c is\nn e c e ssa ry o r a p p ro p ria te fo r th e p u rp o s e o f p re v e n tin g o r c o n tro llin g in flatio n g e n e ra te d b y th e\nex ten sio n o f c re d it in an ex c essiv e v o lu m e ,\xe2\x80\x9d 12 U .S .C . \xc2\xa7 1904, p ro v id e s an a d e q u a te s ta n d a rd ag a in st\nw h ic h th e te rm s o f th e P re s id e n t's a u th o riz a tio n an d th e B o a rd 's su b se q u en t a c tio n s m ay b e assessed.\nS e e A F L C I O v. K ahn, 618 F .2 d 784, 793 n.51 (D .C . C IR . 1979) (en b a n c ), cert, denied. (1979);\nA m a lg a m a te d M e a t C utters a n d B u tch er W o rkm en v. C onnolly. 337 F . S u p p . 737, 7 4 4 -7 6 3 ( D .D .C .\n1971) (th re e -ju d g e c o u rt).\n\n5\n\n\x0cThe consumer credit regulation would require that certain creditors\nextending certain kinds of consumer credit maintain a special non\xc2\xad\ninterest bearing deposit with the Federal Reserve equal to a specified\npercentage of the amount by which certain types of the creditor\xe2\x80\x99s\noutstanding consumer credit would exceed a designated base. This\ncontrol is designed to discourage the expansion of consumer credit. It is\nexpressly authorized by \xc2\xa7 1905(10), which permits the Board to pre\xc2\xad\nscribe \xe2\x80\x9cmaximum ratios, applicable to any class o f . . . creditors . . . of\nloans, of one or more types or of all types . . . (B) to assets of one or\nmore types or of all types.\xe2\x80\x9d In this case, the Board would be establish\xc2\xad\ning maximum ratios between consumer credit loans extended in excess\nof the designated base and both the amount of assets available to\ncovered creditors to support such loans, and the amount of assets to be\ndeposited with the Federal Reserve. Such a requirement would also\nlimit the circumstances in which credit in excess of the designated base\ncould be extended, and would be within the Board\xe2\x80\x99s authority under\n\xc2\xa7 1905(11) to \xe2\x80\x9cprohibit or limit any extensions of credit under any\ncircumstances the Board deems appropriate.\xe2\x80\x9d\nThe money market fund regulation would require such funds and\nsimilar entities to maintain a special non-interest bearing deposit with\nthe Federal Reserve equal to a specified percentage of the amount by\nwhich the extensions of credit by them exceed their outstanding exten\xc2\xad\nsions of credit on a specified date. The covered entities typically act as\nfinancial intermediaries, accepting funds from investors for the purchase\nof \xe2\x80\x9cmoney market instruments,\xe2\x80\x9d i.e., various instruments of indebted\xc2\xad\nness with short-term maturities that are issued by governmental units,\ncorporations, or individuals. The intent of the regulation is to curb\ninflation by curbing the volume of credit available through money\nmarket funds and similar entities. Like the control to be imposed on\ncertain extensions of consumer credit, the requirement that money\nmarket funds maintain special non-interest bearing deposits would be\nauthorized by \xc2\xa7 1905(10), because it would establish a maximum ratio\nbetween these funds\xe2\x80\x99 net extensions of credit and both their net in\xc2\xad\ncreases in assets available for such extensions of credit and their assets\nto be deposited with the Federal Reserve. Such a requirement would\nalso limit the circumstances in which money market funds may make\nfurther extensions of credit and is authorized, by \xc2\xa7 1905(11).\nThe managed liabilities regulation contemplates a requirement that\ncommercial banks that are not members of the Federal Reserve System\nmaintain a non-interest bearing special deposit with the Federal Reserve\nequal to a specified percentage of the amount by which the total of\ncertain managed liabilities of the covered banks exceeds a base amount\nof such liabilities outstanding. The covered liabilities would include\nextensions of credit to the covered banks that such banks typically use\nto support the credit they themselves extend. The intent of the contem\xc2\xad\n6\n\n\x0cplated requirement is to discourage the expansion of credit by the\ncovered institutions. It is authorized by \xc2\xa7 1905(10), which permits the\nBoard to \xe2\x80\x9cprescribe maximum ratios, applicable to any class of . . .\nborrowers . . . of loans, of one or more types or of all types . . . (B) to\nassets of one or more types or of all types.\xe2\x80\x9d In this case, the Board\nwould prescribe a maximum ratio between certain credit that can be\nextended to a bank and both its increase in assets available to support\nextensions of bank credit and its assets to be deposited with the Federal\nReserve. The proposed control would also limit the circumstances\nunder which credit would be extended to covered banks, and is thus\nwithin the authority of \xc2\xa7 1905(11).\nYou will note that, in determining whether the proposed control\nmeasures would be within the Board\xe2\x80\x99s authority under the Act, I have\nrelied exclusively on the language of the Act and on the antiinflationary intent of the measures. Because the legislative history of the\nAct does not elaborate on the scope of the control provisions of \xc2\xa7 1905\nand does not suggest that Congress\xe2\x80\x99 intent is in any way inconsistent\nwith the A ct\xe2\x80\x99s plain meaning, we conclude that control measures that\nare covered by the plain meaning of the statute and that relate to its\npurpose are authorized. Each of the proposed measures meets these\nstandards.\nIn sum, the executive order, if executed, will be a proper exercise of\nthe President\xe2\x80\x99s statutory authority and, if the President issues the order,\nthe proposed credit control measures will be within the Board\xe2\x80\x99s author\xc2\xad\nity under the Act.\nSincerely,\nB e n ja m in\n\n7\n\nR.\n\nC iv ile tti\n\n\x0c"


b'Assertion of Executive Privilege Concerning the\nSpecial Counsel\xe2\x80\x99s Interviews of the Vice President\nand Senior White House Staff\nIt is legally permissible for the President to assert executive privilege in response to a congressional\nsubpoena for reports of Department of Justice interviews with the Vice President and senior White\nHouse staff taken during the Department\xe2\x80\x99s investigation by Special Counsel Patrick Fitzgerald into\nthe disclosure of Valerie Plame Wilson\xe2\x80\x99s identity as an employee of the Central Intelligence\nAgency.\n\nJuly 15, 2008\n\nTHE PRESIDENT\nTHE WHITE HOUSE\nDear Mr. President:\nI am writing to request that you assert executive privilege with respect to Department of Justice documents subpoenaed by the Committee on Government\nReform of the House of Representatives (the \xe2\x80\x9cCommittee\xe2\x80\x9d).\nThe subpoenaed documents concern the Department\xe2\x80\x99s investigation by Special\nCounsel Patrick Fitzgerald into the disclosure of Valerie Plame Wilson\xe2\x80\x99s identity\nas an employee of the Central Intelligence Agency. The documents include\nFederal Bureau of Investigation (\xe2\x80\x9cFBI\xe2\x80\x9d) reports of the Special Counsel\xe2\x80\x99s interviews with the Vice President and senior White House staff, as well as handwritten notes taken by FBI agents during some of these interviews. 1 The subpoena also\nseeks notes taken by the Deputy National Security Advisor during conversations\nwith the Vice President and senior White House officials and other documents\nprovided by the White House to the Special Counsel during the course of the\ninvestigation. Many of the subpoenaed materials reflect frank and candid deliberations among senior presidential advisers, including the Vice President, the White\nHouse Chief of Staff, the National Security Advisor, and the White House Press\nSecretary. The deliberations concern a number of sensitive issues, including the\npreparation of your January 2003 State of the Union Address, possible responses\nto public assertions challenging the accuracy of a statement in the address, and the\ndecision to send Ms. Plame\xe2\x80\x99s husband, Ambassador Joseph Wilson, to Niger in\n2002 to investigate Iraqi efforts to acquire yellowcake uranium. Some of the\n\n1\nAlthough the subpoena also sought the FBI report of the Special Counsel\xe2\x80\x99s interview with you,\nthe Committee has effectively suspended that portion of the subpoena. See Letter for Michael B.\nMukasey, Attorney General, from Henry A. Waxman, Chairman, House Committee on Oversight and\nGovernment Reform at 1 (July 8, 2008) (\xe2\x80\x9cJuly 8 Committee Letter\xe2\x80\x9d) (\xe2\x80\x9c[T]he Committee will not seek\naccess to the report of the FBI interview of President Bush at this time.\xe2\x80\x9d). Accordingly, the report of\nyour interview is not among the materials over which I am requesting that you assert executive\nprivilege.\n\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nsubpoenaed documents also contain information about communications between\nyou and senior White House officials.\nThe Department has made substantial efforts to accommodate the Committee\xe2\x80\x99s\noversight interests concerning the Plame matter by producing or making available\nfor the Committee\xe2\x80\x99s review a large number of FBI reports of interviews with\nsenior White House, State Department and Central Intelligence Agency officials.\nIn view of the heightened confidentiality interests attendant to White House\ndeliberations, we consider our willingness to make the reports of interviews with\nsenior White House staff available for the Committee\xe2\x80\x99s review, subject to limited\nredactions, to be an extraordinary accommodation. On June 24, 2008, we informed\nthe Committee that we anticipate offering to make the remaining reports of\ninterviews with senior White House staff available for Committee review on the\nsame basis as the reports previously reviewed by Committee staff. See Letter for\nHenry A. Waxman, Chairman, House Committee on Oversight and Government\nReform, from Keith B. Nelson, Principal Deputy Assistant Attorney General,\nOffice of Legislative Affairs at 1 (June 24, 2008) (\xe2\x80\x9cJune 24 Department Letter\xe2\x80\x9d).\nThe only reports the Department has not expressed a willingness to make available\nfor review are those for the interviews of you and the Vice President, because of\nheightened separation of powers concerns.\nDespite these substantial efforts at accommodation, the Committee insists that\nthe Department provide it with unredacted copies of all of the subpoenaed\ndocuments except your interview report. In my view, such a production would\nchill deliberations among future White House officials and impede future Department of Justice criminal investigations involving official White House conduct.\nAccordingly, for the reasons discussed below, it is my considered legal judgment\nthat it would be legally permissible for you to assert executive privilege with\nrespect to the subpoenaed documents, and I respectfully request that you do so.\nI.\nIt is well established that the doctrine of executive privilege protects a number\nof Executive Branch confidentiality interests. Preserving the confidentiality of\ninternal White House deliberations related to official actions by the President lies\nat the core of the privilege. See, e.g., In re Sealed Case, 121 F.3d 729, 752\xe2\x80\x9353\n(D.C. Cir. 1997) (addressing presidential communications component of executive\nprivilege); Assertion of Executive Privilege With Respect to Clemency Decision,\n23 Op. O.L.C. 1, 1\xe2\x80\x932 (1999) (opinion of Attorney General Janet Reno) (same). As\nthe Supreme Court recognized in United States v. Nixon, 418 U.S. 683 (1974),\nthere is a\nnecessity for protection of the public interest in candid, objective,\nand even blunt or harsh opinions in Presidential decisionmaking. A\nPresident and those who assist him must be free to explore alterna-\n\n8\n\n\x0cAssertion of Executive Privilege Concerning Special Counsel\xe2\x80\x99s Interviews\n\ntives in the process of shaping policies and making decisions and to\ndo so in a way many would be unwilling to express except privately.\nThese . . . considerations justify[] a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.\nId. at 708.\nExecutive privilege also extends to all Executive Branch deliberations, even\nwhen the deliberations do not directly implicate presidential decisionmaking. As\nthe Supreme Court has explained, there is a \xe2\x80\x9cvalid need for protection of communications between high Government officials and those who advise and assist them\nin the performance of their manifold duties; the importance of this confidentiality\nis too plain to require further discussion.\xe2\x80\x9d Nixon, 418 U.S. at 705; see also\nAssertion of Executive Privilege With Respect to Prosecutorial Documents, 25 Op.\nO.L.C. 1, 2 (2001) (opinion of Attorney General John D. Ashcroft) (\xe2\x80\x9cThe Constitution clearly gives the President the power to protect the confidentiality of\nExecutive Branch deliberations.\xe2\x80\x9d); Assertion of Executive Privilege With Respect\nto Clemency Decision, 23 Op. O.L.C. at 2 (explaining that executive privilege\nextends to deliberative communications within the Executive Branch); Assertion of\nExecutive Privilege in Response to a Congressional Subpoena, 5 Op. O.L.C. 27,\n30 (1981) (opinion of Attorney General William French Smith) (assertion of\nexecutive privilege to protect deliberative materials held by the Department of\nInterior). 2\nMuch of the content of the subpoenaed documents falls squarely within the\npresidential communications and deliberative process components of executive\nprivilege. Several of the subpoenaed interview reports summarize conversations\nbetween you and your advisors, which are direct presidential communications.\nOther portions of the documents fall within the scope of the presidential communications component of the privilege because they summarize deliberations among\nyour most senior advisers in the course of preparing information or advice for\npresentation to you, including information related to the preparation of your 2003\nState of the Union Address and possible responses to public assertions that the\n\n2\nThe Justice Department\xe2\x80\x99s long-standing position finds strong support in various court decisions\nrecognizing that the deliberative process privilege protects internal government deliberations from\ndisclosure in civil litigation. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)\n(\xe2\x80\x9cManifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of\nagency decisions.\xe2\x80\x9d); Landry v. FDIC, 204 F.3d 1125, 1135\xe2\x80\x9336 (D.C. Cir. 2000) (describing how\nagencies may assert the \xe2\x80\x9cdeliberative process\xe2\x80\x9d component of executive privilege in litigation); Dow\nJones & Co. v. Dep\xe2\x80\x99t of Justice, 917 F.2d 571, 573\xe2\x80\x9374 (D.C. Cir. 1990) (describing the \xe2\x80\x9c\xe2\x80\x98deliberative\nprocess\xe2\x80\x99 or \xe2\x80\x98executive\xe2\x80\x99 privilege\xe2\x80\x9d as an \xe2\x80\x9cancient privilege . . . predicated on the recognition that the\nquality of administrative decision-making would be seriously undermined if agencies were forced to\noperate in a fishbowl\xe2\x80\x9d) (internal quotation marks omitted).\n\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\naddress contained an inaccurate statement. In addition, many of the documents\nsummarize deliberations among senior White House officials about how to\nrespond to media inquiries concerning the 2003 State of the Union Address and\nAmbassador Wilson\xe2\x80\x99s trip to Niger. Such internal deliberations among White\nHouse staff clearly fall within the scope of the deliberative process component of\nthe privilege. As the Supreme Court explained, \xe2\x80\x9c[h]uman experience teaches that\nthose who expect public dissemination of their remarks may well temper candor\nwith a concern for appearances and for their own interests to the detriment of the\ndecisionmaking process.\xe2\x80\x9d Nixon, 418 U.S. at 705.\nMoreover, because the subpoenaed documents are from law enforcement files,\nthe law enforcement component of executive privilege is also implicated. The\nPresident may invoke executive privilege to preserve the integrity and independence of criminal investigations and prosecutions. See Response to Congressional\nRequests for Information Regarding Decisions Made Under the Independent\nCounsel Act, 10 Op. O.L.C. 68, 75\xe2\x80\x9378 (1986) (\xe2\x80\x9cIndependent Counsel Act\xe2\x80\x9d)\n(explaining the Executive Branch\xe2\x80\x99s authority to withhold open and closed law\nenforcement files from Congress); Prosecution for Contempt of Congress of an\nExecutive Branch Official Who Has Asserted a Claim of Executive Privilege,\n8 Op. O.L.C. 101, 117 (1984) (\xe2\x80\x9cSince the early part of the 19th century, Presidents\nhave steadfastly protected the confidentiality and integrity of investigative files\nfrom untimely, inappropriate, or uncontrollable access by the other branches,\nparticularly the legislature.\xe2\x80\x9d); Assertion of Executive Privilege in Response to\nCongressional Demands for Law Enforcement Files, 6 Op. O.L.C. 31, 32\xe2\x80\x9333\n(1982) (same concerning law enforcement files of the Environmental Protection\nAgency); Position of the Executive Department Regarding Investigative Reports,\n40 Op. Att\xe2\x80\x99y Gen. 45, 49 (1941) (same concerning investigative files of the\nFederal Bureau of Investigation). Although the law enforcement component of\nexecutive privilege is more commonly implicated when Congress seeks materials\nabout an open criminal investigation, the separation of powers necessity of\nprotecting the integrity and effectiveness of the prosecutorial process continues\nafter an investigation closes. Independent Counsel Act, 10 Op. O.L.C. at 77. The\nDepartment has long recognized that executive privilege protects documents\nrelated to a closed criminal investigation where disclosure might \xe2\x80\x9champer\nprosecutorial decision-making in future cases\xe2\x80\x9d or undermine the Executive\nBranch\xe2\x80\x99s \xe2\x80\x9clong-term institutional interest in maintaining the integrity of the\nprosecutorial decision-making process.\xe2\x80\x9d Id.\nEven though the Special Counsel\xe2\x80\x99s investigation and the Libby prosecution are\nclosed matters, the law enforcement component of executive privilege is applicable here because the Committee\xe2\x80\x99s subpoena raises serious separation of powers\nconcerns related to the integrity and effectiveness of future law enforcement\ninvestigations by the Department of Justice. I have a general concern about the\nprospect of committees of Congress obtaining confidential records from Justice\nDepartment criminal investigative files for the purpose of addressing highly\n\n10\n\n\x0cAssertion of Executive Privilege Concerning Special Counsel\xe2\x80\x99s Interviews\n\npoliticized issues in public committee hearings. More specifically, I am concerned\nabout the subpoena\xe2\x80\x99s impact on White House cooperation with future Justice\nDepartment criminal investigations. As the Department has explained to the\nCommittee, there \xe2\x80\x9cis an admirable tradition, extending back through Administrations of both political parties, of full cooperation by the White House with\ncriminal investigations.\xe2\x80\x9d June 24 Department Letter at 2. In keeping with this\ntradition, you, the Vice President and White House staff cooperated voluntarily\nwith the Special Counsel\xe2\x80\x99s investigation, agreeing to informal interviews outside\nthe presence of the grand jury. Were future presidents, vice presidents or White\nHouse staff to perceive that such voluntary cooperation would create records that\nwould likely be made available to Congress (and then possibly disclosed publicly\noutside of judicial proceedings such as a trial), there would be an unacceptable risk\nthat such knowledge could adversely impact their willingness to cooperate fully\nand candidly in a voluntary interview. They might insist, alternatively, on\ndisclosing information only pursuant to a grand jury subpoena in order to ensure\nthe secrecy protections of Rule 6(e) of the Federal Rules of Criminal Procedure.\nThus, if the Department were to release copies of interview reports with the Vice\nPresident or senior White House staff, this precedent could discourage voluntary\ncooperation with future Department criminal investigations involving official\nWhite House actions. Such a result would significantly impair the Department\xe2\x80\x99s\nability to conduct future law enforcement investigations that would benefit from\nfull White House cooperation.\nAccordingly, for the reasons discussed above, I believe that the subpoenaed\nmaterials fall within the scope of executive privilege.\nII.\nUnder controlling case law, a congressional committee may overcome an assertion of executive privilege only if it establishes that the subpoenaed documents are\n\xe2\x80\x9cdemonstrably critical to the responsible fulfillment of the Committee\xe2\x80\x99s functions.\xe2\x80\x9d Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498\nF.2d 725, 731 (D.C. Cir. 1974) (en banc). Those functions must be in furtherance\nof Congress\xe2\x80\x99s legitimate legislative responsibilities. See McGrain v. Daugherty,\n273 U.S. 135, 160 (1927) (Congress has oversight authority \xe2\x80\x9cto enable it efficiently to exercise a legislative function belonging to it under the Constitution.\xe2\x80\x9d). The\nCommittee has not satisfied this high standard.\nThe Committee asserts that it needs the subpoenaed documents \xe2\x80\x9cto answer\nimportant questions about how the White House safeguards national security\nsecrets and responds to breaches, and to make legislative recommendations to\nensure appropriate handling of classified information by White House officials.\xe2\x80\x9d\nJuly 8 Committee Letter, supra note 1, at 6. The Department has acknowledged\nthat the Committee may have legitimate oversight interests in this area. See, e.g.,\n\n11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nJune 24 Department Letter at 1, 3 (summarizing the Department\xe2\x80\x99s efforts to\naccommodate the Committee\xe2\x80\x99s interests).\nIt is not sufficient, however, for the Committee to assert that the subpoenaed\ndocuments may, at some level, relate to a legitimate oversight interest. To\novercome an assertion of executive privilege, a congressional committee must\n\xe2\x80\x9cpoint[] to . . . specific legislative decisions that cannot responsibly be made\nwithout access to [the privileged] materials.\xe2\x80\x9d Senate Select Comm., 498 F.2d at\n733. In this sense, the D.C. Circuit has emphasized, \xe2\x80\x9c[t]here is a clear difference\nbetween Congress\xe2\x80\x99s legislative tasks and the responsibility of a grand jury.\xe2\x80\x9d Id. at\n732. \xe2\x80\x9cWhile fact-finding by a legislative committee is undeniably a part of its task,\nlegislative judgments normally depend more on the predicted consequences of\nproposed legislative actions and their political acceptability, than on precise\nreconstruction of past events.\xe2\x80\x9d Id.; see also Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 159 (1989) (\xe2\x80\x9cCongress will\nseldom have any legitimate legislative interest in knowing the precise predecisional positions and statements of particular executive branch officials.\xe2\x80\x9d).\nThe Committee has yet to identify any specific legislative need for the subpoenaed documents, relying instead on a generalized interest in evaluating the White\nHouse\xe2\x80\x99s involvement in the Plame matter as part of its review of White House\nprocedures governing the handling of classified documents. The Department has\nalready made extensive efforts to accommodate this interest. Among other steps,\nthe Department has produced or made available for the Committee\xe2\x80\x99s review\ndozens of FBI reports of interviews with senior White House staff and State\nDepartment and Central Intelligence Agency officials. Indeed, with the exception\nof the Vice President\xe2\x80\x99s interview report (and yours), the Department has made\navailable for the Committee\xe2\x80\x99s review, or indicated it anticipates making available\nfor review, all of the interview reports subpoenaed by the Committee, subject to\nlimited redactions to protect presidential communications and irrelevant personal\ninformation. In the Department\xe2\x80\x99s view, these accommodations, combined with the\nvoluminous record from the Libby trial, should satisfy the Committee\xe2\x80\x99s legitimate\ninterests.\nThe only subpoenaed document that the Committee addresses with any particularity is the Vice President\xe2\x80\x99s interview report, which the Department has not made\navailable for review because of heightened separation of powers concerns. Despite\nrepeatedly referencing the report, however, the Committee never articulates any\nlegitimate legislative interest in the document that might outweigh an executive\nprivilege claim. Instead, the Committee simply reiterates its general interest in\nWhite House procedures for handling classified information, July 8 Committee\nLetter at 6, and broadly asserts that \xe2\x80\x9cthis Committee and the American people are\nentitled to know\xe2\x80\x9d about the Vice President\xe2\x80\x99s conduct in the Plame matter, id. at 2.\nThese general assertions fall well short of the \xe2\x80\x9cdemonstrably critical\xe2\x80\x9d particularized need required to overcome an executive privilege claim. The Department\n\n12\n\n\x0cAssertion of Executive Privilege Concerning Special Counsel\xe2\x80\x99s Interviews\n\nhas already accommodated any legitimate interest the Committee may have in\nspecifically understanding the Vice President\xe2\x80\x99s actions. Interview reports and\nother documents produced or made available to the Committee describe the Vice\nPresident\xe2\x80\x99s role in the Plame matter, including his involvement in responding to\nAmbassador Wilson\xe2\x80\x99s article about his trip to Niger and allegations that your State\nof the Union Address contained an inaccurate statement. Numerous public\nmaterials, including testimony and exhibits introduced at the Libby trial, also\ndiscuss the Vice President\xe2\x80\x99s participation in the matter. Much of the information in\nthe Vice President\xe2\x80\x99s interview report is cumulative, and therefore not \xe2\x80\x9cdemonstrably critical\xe2\x80\x9d to the Committee\xe2\x80\x99s legislative functions. See Senate Select Comm.,\n498 F.2d at 731\xe2\x80\x9332. And, even assuming that some of the information is not\nduplicative, the Committee still has not explained the compelling legislative need\nthat requires it to understand all of the details of the Vice President\xe2\x80\x99s involvement\nin the matter. See id. at 732 (explaining that legitimate legislative functions rarely\nrequire a \xe2\x80\x9cprecise reconstruction of past events\xe2\x80\x9d).\nMoreover, Congress\xe2\x80\x99s legislative function does not imply a freestanding authority to gather information for the sole purpose of informing \xe2\x80\x9cthe American\npeople.\xe2\x80\x9d July 8 Committee Letter at 2. Article I of the Constitution does not\nexplicitly vest Congress with an \xe2\x80\x9cinforming function,\xe2\x80\x9d and the only informing\nfunction of Congress implied under Article I, its oversight function, \xe2\x80\x9cis that of\ninforming itself about subjects susceptible to legislation, not that of informing the\npublic.\xe2\x80\x9d Miller v. Transamerican Press, Inc., 709 F.2d 524, 531 (9th Cir. 1983)\n(citing Hutchinson v. Proximire, 443 U.S. 111, 132\xe2\x80\x9333 (1979)).\nAccordingly, when I balance the Committee\xe2\x80\x99s attenuated legislative interest in\nthe subpoenaed documents against the Executive Branch\xe2\x80\x99s strong interest in\nprotecting the confidentiality of its internal deliberations and protecting the\nintegrity of future criminal investigations by the Department, I conclude that the\nCommittee has not established that the subpoenaed documents are \xe2\x80\x9cdemonstrably\ncritical to the responsible fulfillment\xe2\x80\x9d of the Committee\xe2\x80\x99s legitimate legislative\nfunctions. Senate Select Comm., 498 F.2d at 731.\nIII.\nI am greatly concerned about the chilling effect that compliance with the\nCommittee\xe2\x80\x99s subpoena would have on future White House deliberations and\nWhite House cooperation with future Justice Department investigations. For the\nreasons set forth above, I believe that it is legally permissible for you to assert\nexecutive privilege with respect to the subpoenaed documents. I respectfully\nrequest that you do so.\nMICHAEL B. MUKASEY\nAttorney General\n\n13\n\n\x0c'


b'Constitutionality of Regulations Requiring Prepublication\nClearance of Books by Former Iranian Hostages\nUnder the Supreme C ourt\xe2\x80\x99s holding in Snepp v. United States, 444 U.S. 507 (1980), the\nbroad prepublication clearance requirements in regulations of the International Commu\xc2\xad\nnications Agency (ICA ) would be held unenforceable through judicial process in a\nwide variety of applications, notably insofar as they apply to previously disclosed\ninformation or to the expression of personal opinions by persons w ho do not regularly\nhave access to classified information.\nThe Supreme Court is not likely to uphold a prior\nemployees in the absence of some powerful showing\nto the United States would probably result if the\nexpression o f personal opinion not based on classified\ntest.\n\nrestraint on publication by ICA\nthat substantial and specific harm\npublication were permitted. The\ninformation would not satisfy this\n\nWhile the issue is not free from doubt, a strong argument can be made that disciplinary\naction against an employee based on the need for a foreign policy free from internal\ndissension in the Foreign Service would not be constitutionally impermissible, particu\xc2\xad\nlarly if the employee maintained responsibilities at a highly visible level. However, the\ncourts might find discipline involving discharge appropriate only if the statements\nultimately made severely and irreparably impaired an individual\xe2\x80\x99s ability to perform\nsome services as an employee.\n\nJune 11, 1981\nMEMORANDUM OPINION FOR THE ACTING DIRECTOR,\nINTERNATIONAL COMMUNICATIONS AGENCY\nThis responds to your request for the views of this Office on the\nconstitutionality of certain regulations of the International Communica\xc2\xad\ntions Agency (ICA) 1as applied to former Iranian hostages who, as you\nhave informed us, are planning to write books or articles that may be\ninconsistent with national policy or otherwise injurious to the foreign\npolicy of the United States. For the reasons that follow, we believe that\nthe preclearance requirements of your regulations are probably unen\xc2\xad\nforceable by injunction except to the extent that you seek to prevent\npublication of classified or sensitive, nonpublic factual information, and\nare thus able to make a persuasive showing that serious harm to the\nUnited States would be likely to result from publication. Despite the\nbreadth of the regulations, however, a lesser showing would be suffi\xc2\xad\ncient under the Constitution to justify post-publication discipline such\n1 The regulations also apply to employees of the Department of State and the Agency for Interna\xc2\xad\ntional Development.\n\n161\n\n\x0cas suspension or discharge if the regulations are violated, but the ICA\nmay not discharge an employee for exercise of First Amendment rights\nunless it is able to establish that the speech at issue has jeopardized the\neffective performance of the Foreign Service or of the employee\xe2\x80\x99s\nduties.\nI. Background\nSeveral officers of the ICA were among the American Embassy staff\nthat was seized in Iran on November 4, 1979. Those officers were\nresponsible for carrying out the Agency\xe2\x80\x99s duties as press and cultural\naffairs officials. At least tw o of the officers 2 have written articles and\nare currently writing books on the subject. You have informed us that\nyou anticipate that the officers will submit their books or articles to the\nICA for clearance in advance of publication. You expect that some of\nthe books may contain comments on current policies of the government\nthat the ICA would prefer not to have published by a Foreign Service\nofficer on active duty.3 T he question presented is whether the ICA may\n2T he specific duties of the officers in question are discussed infra.\n3 A draft o f one o f this officer\xe2\x80\x99s articles, for example, contains the following statements:\n[The officer\xe2\x80\x99s wife stated:]\n. . Terrorism has the American public all worked up. So\nnow terrorism is suddenly a Soviet tool. All the terrorists around the world are being\naided and egged on by the Soviets. T hat\xe2\x80\x99s the new theory. The leftists in El Salvador\ntherefore have to be defeated because they, like all terrorists, are the tools o f the\nSoviets. Vested American interests once again con the American public and the U.S.\ngovernm ent into protecting and promoting their private interests. Client State El\nSalvador Incorporated is safe for business and monkey business . . . . W hat\xe2\x80\x99s the\nmatter? You look perplexed.\xe2\x80\x9d\n[The officer answered:] \xe2\x80\x9cI\xe2\x80\x99m just surprised by the El Salvador thing. I\xe2\x80\x99ve been cut off\nfrom the news. But what you say seems to fit with w hat 1 want to say in the book\nabout U.S. foreign policy. O nly I thought I\xe2\x80\x99d have to use Cuba* Nicaragua, Taiwan,\nKorea, the Philippines and o f course Iran. [. . .]\n\xe2\x80\x9cW e\xe2\x80\x99ve paid lip service to the ideals set forth in our Constitution, in the Bill of Rights,\nbut our foreign policy has n ot only been aggressive, it has been selectively aggressive,\nmanipulated by vested interests to prom ote profits for small groups. It hasn\'t been in\nthe interests of the general public, o f America, especially in recent years . . . . [I\nwant] a foreign policy that is so tough-minded and practical that it can\xe2\x80\x99t be manipu\xc2\xad\nlated by vested interests, bankers, manufacturers, farmers, import-export firms . . . [or]\nour own venturesome military . . . .\n\xe2\x80\x9cT he American public gets conned into seeing fights in countries like Korea, Vietnam,\nIran and now El Salvador as contests between the good guys and the bad guys. [. . .]\n\xe2\x80\x9cT he driving force of U S. foreign policy has for years been anti-communism, which in\nitself is probably not in the real interests o f the U.S............ We make anti-communism\ninto a religious war. We\xe2\x80\x99re emotional and irrational in our opposition to communism.\nT he vested interests are sm art enough to play on o ur obsessive fear. They engineer\nclient states which are profitable to them but most o f the profits come from American\ntax money. T he genera) public pays South Korea is a great example. They can lobby\nus with our money. . . T h e vested-interest lobbies have an easy time of it. T hey play\non Am erica\xe2\x80\x99s obsessive fear of communism and the American need to be loved and\nadmired by foreigners. W e like our foreigners fawning and serving. We like client\nstates\n\xe2\x80\x9cW hat\xe2\x80\x99s wrong with U.S. foreign policy now? It\xe2\x80\x99s based on mindless, emotional\nopposition to communism. . . We should . . . never back any authoritarian regime\nanywhere. Not in Iran or K orea or El Salvador.\xe2\x80\x9d\n\n162\n\n\x0clawfully order deletions or modifications in the text of such books and\ndiscipline the officers should they fail to comply with such orders.\nUnder ICA regulations, employees must obtain clearance of all writ\xc2\xad\ning of \xe2\x80\x9cofficial concern,\xe2\x80\x9d broadly defined to include materials \xe2\x80\x9cwhich\nmay reasonably be interpreted as relating to the current responsibilities,\nprograms, or operations of any employee\xe2\x80\x99s agency or to current U.S.\nforeign policies, or which reasonably may be expected to affect the\nforeign relations of the United States.\xe2\x80\x9d Uniform State/AID/USIA Reg\xc2\xad\nulations, 3 Foreign Affairs Manual 626.2. The purpose of the regulation\nis \xe2\x80\x9cto substitute the agency\xe2\x80\x99s institutional judgment for the employee\xe2\x80\x99s\njudgment when the question involved concerns either the release or\naccuracy of information concerning his agency\xe2\x80\x99s responsibilities or\nwhat conclusions should be drawn from such information.\xe2\x80\x9d Clearance\nwill be granted only if \xe2\x80\x9call classified material and all material of official\nconcern . . . which is inaccurate, inconsistent with current foreign\npolicy, or can reasonably be expected to affect adversely U.S. foreign\nrelations, has been deleted . . . .\xe2\x80\x9d Matters not on a subject of \xe2\x80\x9cofficial\nconcern\xe2\x80\x9d need not be cleared.\nII. Discussion\nThe starting point for analysis of this subject is the decision of the\nSupreme Court in Snepp v.. United States, 444 U.S. 507 (1980). In that\ncase Snepp, a former employee of the Central Intelligence Agency\n(CIA), had published a book about certain CIA activities in South\nVietnam without submitting the manuscript to the CIA for\npreclearance. He did so in spite of his written pledge not to divulge\nwithout prior authorization any classified material or any information\n\xe2\x80\x9cconcerning intelligence or [the] CIA\xe2\x80\x9d that had not been made public.\nThe district court and court of appeals found that Snepp\xe2\x80\x99s breach of his\nagreement had irreparably harmed the government. The Supreme\nCourt agreed with the court of appeals that Snepp\xe2\x80\x99s agreement was an\n\xe2\x80\x9centirely appropriate exercise of the CIA Director\xe2\x80\x99s statutory mandate\nto \xe2\x80\x98protect intelligence sources and methods from unauthorized disclo\xc2\xad\nsure.\xe2\x80\x99 \xe2\x80\x9d Id. at 509, n.3 (citation omitted). The Court added:\n[T]his Court\xe2\x80\x99s cases make clear that\xe2\x80\x94even in the absence\nof an express agreement\xe2\x80\x94the CIA could have acted to\nprotect substantial government interests by imposing rea\xc2\xad\nsonable restrictions on employee activities that in other\ncontexts might be protected by the First Amendment.\nThe Government has a compelling interest in protecting\nboth the secrecy of information important to our national\nsecurity and the appearance of confidentiality so essential\nto the effective operation of our foreign intelligence serv\xc2\xad\nice. The agreement that Snepp signed is a reasonable\nmeans for protecting this vital interest.\n163\n\n\x0cId. (citations omitted). In dissent, Justice Stevens, joined by Justices\n\nBrennan and Marshall, acknowledged that the CIA \xe2\x80\x9chas a vital interest\nin protecting certain types of information,\xe2\x80\x9d but added that \xe2\x80\x9cthe CIA\nemployee has a countervailing interest in . . . protecting his First\nAmendment rights.\xe2\x80\x9d Id. at 520. Accordingly, \xe2\x80\x9c[t]he public interest lies\nin a proper accommodation that will preserve the intelligence mission\no f the Agency while not abridging the free flow of unclassified infor\xc2\xad\nmation.\xe2\x80\x9d Id. In a supporting footnote, Justice Stevens agreed that the\ngovernment may regulate certain categories of activities by its own\nemployees that would in other contexts be protected by the First\nAmendment, but suggested that \xe2\x80\x9cnone of the cases . . . cite[d] involved\na requirement that an employee submit all proposed public statements\nfor prerelease censorship or approval. The Court has not previously\nconsidered the enforceability of this kind of prior restraint or the\nremedy that should be imposed in the event of a breach.\xe2\x80\x9d Id. at 520-21,\nn.10.\nAfter Snepp, the ICA regulations at issue raise three separate ques\xc2\xad\ntions: (1) whether the preclearance requirement itself is enforceable\nthrough injunction; (2) whether, if clearance is denied, the ICA may,\nthrough judicial process, prevent publication if the employee refuses to\ncomply with the denial; and (3) whether, if clearance is denied, the\nICA may discipline or discharge an employee for publishing or disclos\xc2\xad\ning the material in question.\nA.\nEnforceability of preclearance requirement through injunction. You\nhave informed us that the officers in question will voluntarily submit\ntheir publications to the ICA for preclearance. As a result, it appears\nthat the officers will not contend that the preclearance requirement is\nunenforceable through injunction either on its face or as applied. Since,\nhowever, the regulations may well come under attack in any litigation\non the general subject, we briefly examine the relevant constitutional\nissues by way of background.\nIn Snepp, the Court upheld the written agreement even though it\ncovered all non-public information bearing on \xe2\x80\x9cintelligence\xe2\x80\x9d or the\n\xe2\x80\x9cCIA.\xe2\x80\x9d 4 Moreover, it stated that even in the absence of an express\nagreement, the CIA could have acted to prevent dissemination of\ninformation the disclosure of which would be protected by the First\nAmendment if it were not carried out by government employees. The\nCourt justified its conclusion on the ground that there was a substantial\ngovernmental interest in preserving both the appearance and the reality\n4 T he Secretary o f State, m conjunction w ith the D irector, is authorized to promulgate the\nregulations in question here under the Foreign Service act o f 1980, Pub. L. No. 96-465, 94 Stat. 2071.\nU nder that A ct, the Secretary o f State \xe2\x80\x9cmay prescribe such regulations as [he] deems appropriate to\ncarry out functions under this [A ct].\xe2\x80\x9d 22 U.S.C. \xc2\xa73926 (Supp. IV 1980) In light of the clear necessity\nfor confidentiality by those w ho represent the United States in the sensitive area o f international\nrelations, w e believe that a requirement o f preclearance is within this broad grant of rulemaking\nauthority.\n\n164\n\n\x0cof confidentiality with respect to non-public information coming into\nthe hands of CIA officials.\nThe regulations at issue here are broader and more stringent than the\nrestrictions contained in the agreement involved in Snepp. The regula\xc2\xad\ntions here are not limited to particular employees having access to\nsensitive information. They cover any writings\xe2\x80\x94including those merely\nexpressing personal opinions based on facts in the public domain\xe2\x80\x94that\nrelate to the activities of the employee\xe2\x80\x99s agency or to current United\nStates foreign policies. This exceptionally broad prohibition would, we\nbelieve, be unenforceable through judicial process in a number of its\napplications. For example, we are aware of no authority to support the\nconclusion that the many clerical workers of the Department of State\nor the ICA could be required to preclear any publications that express\nviews that relate to United States foreign policies, but that contain no\ninformation that is either classified or classifiable and that is in the\npublic domain. The reasoning of both Snepp and United States v.\nMarchetti, 466 F.2d 1309 (4th Cir.), cert, denied, 409 U.S. 1063 (1972),\nsuggests that such a requirement would be impermissible.\nThe Snepp case involved the potential for the disclosure of non\xc2\xad\npublic information, the revelation of which could have resulted in\nirreparable harm to the United States. Any preclearance requirement\nthat is designed to prohibit disclosure of public information or the\nexpression of personal opinion by persons who do not regularly have\naccess to classified or classifiable information, as did Snepp, raises more\ndifficult questions under the First Amendment, for the compelling gov\xc2\xad\nernment interests involved in Snepp are largely absent in such circum\xc2\xad\nstances. Such a requirement may be justified, if at all, by the potential\nharm that may occur if some preclearance mechanism is not applied to\nthe expression of personal opinions, at least by a high-level employee of\nan agency responsible for the conduct of the foreign relations of the\nUnited States.\nWe are able to identify several such potential harms, falling in four\ngeneral categories. First, the employee could be rendered less credible\nas a diplomat if he published writings inconsistent with United States\npolicy. Second, the operation of the Foreign Service could be jeopard\xc2\xad\nized if conflicting views were expressed by different officials, for highlevel officials might be unable to dissociate their personal and profes\xc2\xad\nsional capacities, and foreign countries might thus be uncertain of the\nactual position of the United States. Third, American foreign policy\ncould be undermined if disputes about that policy among high-level\ngovernment officials were made public. Finally, the employee\xe2\x80\x99s superi\xc2\xad\nors might lose confidence that an employee who has sharply criticized\ncurrent policy will faithfully represent the United States or accurately\nstate its positions on related and other issues.\n165\n\n\x0cIn the context of an effort to obtain some form of prior restraint,\nthese types of injury are likely to be considered less damaging to the\nUnited States than those created by the disclosure of non-public and\nsensitive information bearing on national defense and intelligence activi\xc2\xad\nties. In essence, the damage consists of the embarrassment caused to the\nUnited States by dissent among high-level officials. As we discuss in\nmore detail infra, we believe that the courts would allow the Executive\nto undertake disciplinary action in order to sanction or deter such\ndissent. There is, however, no authority for the conclusion that the\ncourts would uphold a prior restraint to prevent the expression of\npersonal views when those views do not purport to contain any classi\xc2\xad\nfied or sensitive information. Snepp stands for the proposition that\npreclearance may be supportable as a means of ensuring against disclo\xc2\xad\nsure of classified or sensitive information; it does not justify the use of\nsuch a mechanism, enforceable through an injunction issued by a court,\nin order to suppress the expression of personal opinion.\nWe thus conclude that the preclearance requirement would be en\xc2\xad\nforced by an injunction only in order to prevent the disclosure of\ninformation of the sort involved in Snepp. The consequence of this\nconclusion is that the preclearance requirement is unenforceable\nthrough injunction in a wide variety of applications.5 Whether the\nnumber of impermissible applications is so great as to amount to \xe2\x80\x9csub\xc2\xad\nstantial overbreadth,\xe2\x80\x9d see Broadrick v. Oklahoma, 413 U.S. 601 (1973),\nis difficult to assess in the abstract. We believe, however, that the\npossibility that the preclearance requirement would be held unenforce\xc2\xad\nable by injunction on its face may not be regarded as remote.6\nB.\nRestraints in advance o f publication. The next question is whether\nthe ICA may lawfully require the former hostages to delete material\nappearing in proposed writings. We interpret this question to mean\nwhether the ICA may seek a court order imposing prepublication\nrestraints in the event that its employees refuse to comply with the\nICA\xe2\x80\x99s decision not to clear certain material.\nWe note, first, that the exceptionally heavy burden ordinarily im\xc2\xad\nposed on the government to justify a prior restraint, see New York\nTimes Co. v. United States, 403 U.S. 713 (1971), will probably not be\ns F or this reason, we recommend th at the applicability of the preclearance requirement be narrowed\nto conform to the standards suggested in Snepp and this memorandum. The preclearance requirement\nshould be applicable only to employees who have access to and whose writings might contain\nsensitive o r classified information, and to those w ho are subject to discipline under Pickering v. Board\no f Education, 391 U.S. 563 (1968), for statements critical of current policy. With respect to the former,\na prior restraint and disciplinary rem edies would generally be available m an appropriate case; with\nrespect to the latter, only post-publication remedies would be permissible. C f n.9, infra. If so\nnarrow ed, it could be made clear th at the purpose of the preclearance requirement is to prevent\ndisclosure o f classified o r sensitive information, and that disciplinary action would be taken only for\nsuch disclosures or for criticism by employees not protected by Pickering. Otherwise, the preclearance\nrequirem ent should be used as a voluntary measure to guard against improprieties.\n6 We do not suggest, however, th at the preclearance mechanism may not be used as a voluntary\nprocedure to be used by employees, in order to ensure against improper-action on their part and as the\nbasis for disciplinary action against them by their employer. See infra.\n\n166\n\n\x0capplied with full force to a prior restraint imposed by the government\non disclosure of information by a government employee. See Snepp v.\nUnited States, supra. The Snepp case did not, however, involve total\nsuppression of information, but only preclearance and imposition of a\nconstructive trust after the information had been disclosed. In light of\nthe strong and consistent constitutional hostility to prior restraints, see\nNear v. Minnesota, 283 U.S. 697 (1931), we do not believe that the\nCourt would uphold the imposition of a prior restraint on an employ\xc2\xad\nee\xe2\x80\x99s speech in the absence of some powerful showing that substantial\nharm would result if the speech were permitted.7 The only court that\nhas addressed this issue reached a similar conclusion, stating that while\nthe preclearance agreement was itself enforceable, a court should \xe2\x80\x9cde\xc2\xad\ncline enforcement of the secrecy oath . . . to the extent that it purports\nto prevent disclosure of unclassified information, for, to that extent, the\noath would be in contravention of his First Amendment rights.\xe2\x80\x9d United\nStates v. Marchetti, supra, at 1317. According to the Marchetti court,\neven a former agent of the CIA \xe2\x80\x9cretains the right to speak and write\nabout the CIA and its operations, and to criticize it as any other citizen\nmay, but he may not disclose classified information obtained by him\nduring the course of his employment which is not already in the public\ndomain.\xe2\x80\x9d Id. See also Snepp v. United States, supra, 444 U.S. at 511.\nThis analysis suggests that the ICA may enjoin publication by its\nemployees only if there is a probability that substantial harm to the\nUnited States would be produced by the disclosure.8 Mere speculation\nwill probably be insufficient. See New York Times v. United States,\nsupra. Nor do we believe that a court would enjoin publication solely\non the basis of the harm that would be produced by criticism of United\nStates policy by a Foreign Service employee, at least if that criticism is\nbased on or contains only facts within the public domain and facts\nwhich are neither classified nor classifiable. The courts have held that\nthe harm produced by the expression of mere opinion is far less consti\xc2\xad\n7 In the Snepp case itself, all three courts found that the publication had irreparably harmed the\nUnited States.\naWe note in addition that ICA employees are protected from reprisal for disclosing certain kinds of\ninformation. Under the Foreign Service Act of 1980, Pub. L. 96-465, the Secretary of State is required\nto prescribe regulations to ensure that members of the Service,\nare free from reprisal for\xe2\x80\x94\n(A) a disclosure o f information by a member or applicant which the member or\napplicant reasonably believes evidences\xe2\x80\x94\n(i) a violation o f any law, rule, or regulation, or\n(li) mismanagement, a gross waste of funds, an abuse of authority, or a substantial\nand specific danger to public health or safety,\nif such disclosure is not specifically prohibited by law and if such information is not\nspecifically required by Executive order to be kept secret in the interest of national\ndefense or the conduct of foreign affairs.\n22 U.S.C. \xc2\xa7 3905(b)(2). We are aware of no statutory provision or executive order that would bar\ndisclosure of the information at issue here. On the other hand, the provisions afford no protection\nagainst the pure expression of views, as distinct from the disclosure of information. Furthermore, we\nare not aware of any information which is threatened to be disclosed in the instant case which is\nprotected by 22 U.S.C. \xc2\xa7 3905(bX2).\n\n167\n\n\x0ctutionally significant than that produced by disclosure of non-public\ninformation of the sort involved in Marchetti and Snepp and that there\nare very strong considerations in favor of allowing the broadest possi\xc2\xad\nble dissemination of opinion, cf. Pickering v. Board o f Education, supra;\nGertz v. Welch, 418 U.S. 323 (1974). To support such a prior restraint\xe2\x80\x94\nas distinct from subsequent punishment\xe2\x80\x94a more substantial threat to\nUnited States interests must be shown. See United States v. Marchetti,\nsupra, at 1317. The expression of purely personal opinion not based on\nany closely held information or classified information would not satisfy\nthis test. Id. Accordingly, we believe that the ICA may impose a prepublication restraint only in order to prevent or ensure against disclo\xc2\xad\nsure of classified or similar information.9\nC.\nDiscipline. The Supreme Court has indicated that the government\nmay discharge or discipline employees for speech that would be pro\xc2\xad\ntected by the First Amendment if made by a private citizen. In the\nleading case of Pickering v. Board o f Education, 391 U.S. 563 (1968), the\nCourt held that a Board o f Education could not discharge a teacher for\nsubmitting to the local newspaper a letter attacking the school board\xe2\x80\x99s\nhandling of certain bond issue proposals and its subsequent allocation of\nfinancial resources between the schools\xe2\x80\x99 educational and athletic pro\xc2\xad\ngrams. At the same time, the Court emphasized \xe2\x80\x9cthat the State has\ninterests as an employer in regulating the speech of its employees that\ndiffer significantly from those it possesses in connection with regulation\nof the speech of the citizenry in general,\xe2\x80\x9d and that \xe2\x80\x9cthe problem is to\narrive at a balance between the interests of the teacher, as a citizen, in\ncommenting upon matters of public concern and the interest of the\nState, as an employer in promoting the efficacy of the public services it\nperforms through its employees.\xe2\x80\x9d Id. at 565.\nOn the facts of Pickering, the Court observed that the teacher\xe2\x80\x99s\nstatements were not \xe2\x80\x9cdirected toward any person with whom appellant\nwould normally be in contact in the course of his daily work as a\nteacher.\xe2\x80\x9d Thus no question of maintaining either:\ndiscipline . . . or harmony among coworkers is presented\nhere. Appellant\xe2\x80\x99s employment relationships with the\nBoard and, to a somewhat lesser extent, with the superin9 It is not certain that an injunction would issue even in such cases. The regulations state that\npreclearance will be refused for speech simply because it is \xe2\x80\x9cinconsistent with current foreign policy.\xe2\x80\x9d\nT he regulations thus have a num ber of impermissible applications and might be held substantially\noverbroad and therefore unenforceable even in a proceeding brought to prevent disclosure of classified\ninformation. T o prevent this possibility, the regulations should be narrowed in this regard as well, to\nprovide that clearance will not in all cases be denied merely because the statements are inconsistent\nw ith United States policy. Clearance should be denied only when (1) sensitive or classified information\nwould be disclosed, and (2)\xe2\x80\x94for purposes o f warning that discipline may result, but not seeking a\njudicially imposed prior restraint w hen Pickering v. Board o f Education, supra, discussed infra, does not\nprotect the relevant employee from such discipline. Cf. n.S supra.\nIf the regulations are overbroad, a court might grant an injunction on the basis of the common law\npow er to enjoin the disclosure of secrets by an employee. C f Snepp v. United States, supra. This is an\nuntested remedy, however, and its availability cannot be assumed with any confidence.\n\n168\n\n\x0ctendent are not the kind of close working relationships for\nwhich it can persuasively be claimed that personal loyalty\nand confidence are necessary to their proper functioning.\nId. at 570. In a footnote, the Court added that it \xe2\x80\x9cis possible to\n\nconceive of some positions in public employment in which the need for\nconfidentiality is so great that even completely correct public state\xc2\xad\nments might furnish a permissible ground for dismissal.\xe2\x80\x9d Id. at 570 n.3.\nFinally, the Court noted that since \xe2\x80\x9cthe fact of employment is only\ntangentially and insubstantially involved in the subject matter of the\npublic communication,\xe2\x80\x9d it would be proper \xe2\x80\x9cto regard the teacher as\n[a] member of the general public.\xe2\x80\x9d Id. at 574.\nFollowing Pickering, the courts have examined a number of factors to\ndetermine whether a public employee may be discharged for exercising\nhis right to freedom of speech. Those factors include: (1) whether the\nspeech was directed toward a person with whom the employee would\nordinarily be in contact during his daily work; (2) whether the speech\nmight threaten harmony among coworkers; (3) whether the speech\nwould damage the professional reputation of its target; (4) whether the\nspeech reflected a difference of opinion on an issue of public concern,\nor whether it involved an essentially private matter; (5) whether the\nemployment was substantially involved in the subject-matter of the\nspeech, or whether the employee spoke as a member of the general\npublic; (6) whether, because of the high level at which employee\noperates and because of his decisionmaking authority, restrictions on\nfree expression are necessary; and (7) whether the nature of the particu\xc2\xad\nlar occupation involved requires special limits on freedom of expres\xc2\xad\nsion. Cf. Cooper v. Johnson, 590 F.2d 559, 561 (4th Cir. 1979).\nIn the context of proposed publications by former hostages, some of\nthese factors point toward the same conclusion reached by the Court in\nPickering. The proposed publications will apparently relate to issues of\npublic concern. Moreover, the disclosures will presumably not be di\xc2\xad\nrected toward a person with whom the employees have daily contact.\nAs a result, there would appear to be little danger that the speech will\nreflect adversely on a person under whom the employees must work in\na direct ongoing relationship. Further, the employees will presumably\nbe criticizing decisions that are made by officials operating at a consid\xc2\xad\nerably higher level. Finally, it appears that the former hostages would\nbe expressing their views as members of the public, and not as officials\nof the United States. This latter factor would not clearly support a First\nAmendment claim, however, for, simply by virtue of their positions,\nthe continuing employment of the former hostages might be \xe2\x80\x9csubstan\xc2\xad\ntially involved\xe2\x80\x9d in the expression of views. Moreover, their views are\npresumably noteworthy (and marketable) only because of their employ\xc2\xad\nment-related experience. Further, these employees are in the Foreign\nService. Presumably, any statement by a foreign policy official highly\n169\n\n\x0ccritical of the United States and its foreign policy may be very damag\xc2\xad\ning to the United States and its efforts to promote its foreign policy.\nTherefore, the nature of their occupation makes their statements more\nnewsworthy, embarrassing, and damaging to their employer.\nAlthough the issue is not entirely free from doubt, we believe that a\nstrong argument can be made that, as a general rule, disciplinary action\nbased on the need for a foreign policy free from internal dissension\nwithin the Foreign Service would not be constitutionally impermissible.\nThere is a clear necessity for a consistent position bn issues of policy by\nall those representing the United States at a high level in the sensitive\narea of international relations. Both the appearance and the reality of\nconsistency are critical in the area of foreign relations, and any criti\xc2\xad\ncism of United States policy by an officer in a high-level position in the\nForeign Service threatens that goal. As indicated above, the result of\nsuch criticism could be to render the employee less credible as a\ndiplomat, to harm the functioning of the Foreign Service by sending\nconflicting signals from different Foreign Service officials, and to\nimpair the foreign relations of the United States by revealing disputes\namong high-level officials.\nThe strength of this argument will vary according to the level and\nnature of the duties of the particular officer. Plainly, the First Amend\xc2\xad\nment rights of a Cabinet-level employee do not immunize him from\ndischarge by the President for the expression of views that are contrary\nto those of the Administration. By contrast, an employee performing\nclerical or other nonpolicymaking functions would generally be entitled\nto greater constitutional protection against discharge for expressing\npersonal views on matters of foreign relations. The more highly placed\nthe official, the more destructive the statement; the lower the official,\nthe more the statements appear to be personal views. Cf. Branti v.\nFinkel, 445 U.S. 507 (1980) (government may not discharge\nnonpolicymaking assistant public defender because of political party to\nwhich he belongs); Elrod v. Burns, 427 U.S. 347 (1976) (same with\nrespect to employees of county sheriff).\nOne of the officials under consideration here is a Foreign Service\nInformation Officer who acted as the Public Affairs Officer at the\nUnited States Embassy in Iran.10 In the course of his diplomatic duties,\n10H is position description includes the following\nIs responsible for the over-all administration o f a total USIS country program and for\nthe maintenance o f effective working relationships with the Diplomatic Mission and\no ther United States government agencies. This involves the planning, conduct and\ncontinuing evaluation of a coordinated program of information and cultural activities\ndesigned to reach selected audience groups throughout the country for the purpose of\n(a) explaining and interpreting United States objectives and policies and winning\nsupport therefor by identifying the country\'s legitimate aspirations with those o f the\nUnited States; (b) projecting those aspects of American life and culture which will\nprom ote -an understanding o f our country, our people, our way of life and what we\nstand for; and (c) countenng false and hostile anti-United States propaganda. . . . In\nContinued\n\n170\n\n\x0che performed functions as spokesman for the Embassy in matters in\xc2\xad\nvolving all aspects of diplomacy, explaining and interpreting United\nStates objectives, winning support for United States policies, and coun\xc2\xad\ntering false propaganda. He represented the United States in communi\xc2\xad\ncations with the Iranian press, Ministry of Foreign Affairs, and Ministry\nof Education. His immediate superior was the Deputy Chief of Mission,\nwho operates directly under the Ambassador. Among his functions was\nthe preparation of a country-wide plan on an annual basis for approval\nby the Department of State.\nThe second official is a Foreign Service Reserve officer." In Iran he\nworked under the first official as a subordinate press official. His re\xc2\xad\nsponsibilities included communications with the press and the Iranian\nMinistry of Foreign Affairs on a wide range of subjects, including\nstatements of United States policy. Although his contacts with the\nIranian government and press were less frequent and on a lower level\nthan those of the first official, such contacts were an ordinary part of\nhis responsibilities at the Embassy.\nWe cannot, of course, express a definitive view as to the extent to\nwhich these individuals could be disciplined for expressing views criti\xc2\xad\ncal of the United States without knowing facts and circumstances\nwhich we do not have at our disposal. It is, however, apparent that\naccordance with United States policy and in consultation with the other members of\nthe Country Team, develops the Country Plan which translates the Agency\xe2\x80\x99s global\nmission into definite objectives appropriate to political, psychological, economic and \xc2\xbb\ncultural conditions in the country, and which outlines a USIS program of action\nleading to the achievement of these objectives . . Insures the fulfillment o f USIS\nresponsibilities for (a) the conduct of the educational and cultural exchange programs\nadministered for the Department of State; (b) participation in such other United States\ngovernment and private exchange programs as are conducted in the country; (c)\nassisting private local organizations in a position to contribute to the achievement of\nUSIS objectives, such as Bi-National Centers, United States Chambers of Commerce,\nUnited States-host country societies; and (d) publicizing in accordance with Mission\npolicy the Agency for International Development program . . . Advises and assists on\nMission press and public relations, including the preparation of official announcements,\nstatements and public addresses . . . Provides for establishing and maintaining effec\xc2\xad\ntive working relationships with (a) appropriate officials in the national government; (b)\nleaders in the mass media, educational , industrial, labor, professional and technical\nfields, (c) appropriate representatives of Diplomatic Missions of friendly foreign coun\xc2\xad\ntries; and (d) representatives of other United States government agencies. .\nRepre\xc2\xad\nsents USIS and, as required, represents the Ambassador at important information,\ncultural or other functions, and in meeting and assisting distinguished visitors from the\nUnited States and other countries\n11 His position description includes the following\nOfficer directs a Branch of the Program Division which has one other American *\nOfficer (Publications Officer) and 30 other staff members . . . As Chief of one o f four\nbranches of the Program Division, Officer is responsible for the application of all post\nmedia capabilities to the support o f post programs. . . . [C]arries out publicity activities\non behalf of the Iran America Society as coordinated by the Chief, Program Division.\nOfficer is responsible for all other post print and broadcast medial placement activities.\n(Ojbtains, prepares, publishes and distributes a variety of materials supportive o f speak\xc2\xad\ners, panels, seminars, exhibits and other programs designed to achieve post objectives.\nThe Branch is responsible for all press and broadcast publicity in support under\nthe supervision o f the Country Public Affairs Officer In order to accomplish this\nresponsibility, officer is expected to have working knowledge of Iranian media and to\nestablish solid contacts with media professionals.\n\n171\n\n\x0cthese individuals maintained responsibilities at highly visible levels.\nStatements highly critical of United States foreign policy could be\nseverely damaging to that foreign policy and to the ability of these\nindividuals to represent the United States in any similar capacities.\nBecause of the high level of their employment, we believe that the ICA\ncould refuse to return these employees to their prior capacities and\ncould impose disciplinary sanctions to guard against the publication in\nthe future of statements which are highly critical of and damaging to\nUnited States foreign policy.\nO f course, discharge is the most severe form of discipline.12 If the\nstatements ultimately made do not severely and irreparably impair the\nabilities of these individuals to perform some services as employees, the\ncourts might find that discipline short of termination is more appropri\xc2\xad\nate. Since this is largely a subjective decision based upon the proven\nfacts as to the employee\xe2\x80\x99s conduct and its compatibility with past and\nfuture service, it will serve no purpose to speculate further as to the\npermissible discipline under a variety of potential circumstances. We do\nbelieve, however, that discharge may well be permissible if the em\xc2\xad\nployee in question cannot be retained in his present position without\nmaintaining a high-visibility or policymaking rule.\nIII. CoQclmsDon\n\nFor the reasons stated above, we conclude that the preclearance\nrequirements of the ICA regulations would probably not serve to sup\xc2\xad\nport injunctive relief against the disclosure of personal opinions and\npreviously disclosed facts. Injunctive relief could be obtained, if at all,\nonly on the basis of a persuasive showing that serious and specific harm\nto the United States would result if disclosure were permitted. Thus,\ninjunctive relief might be available to guard against potential disclosure\nof classified or closely held information.\nFinally, we believe that, if the relevant employees make policy or\notherwise perform significant functions as representatives of the United\nStates, they may be disciplined for disclosing information that is not in\nthe public domain, or for expressing views that are plainly inconsistent\nwith the foreign policy o f the United States.13 Whether they can be\n12 By statute, members o f the Service may be separated from the Service \xe2\x80\x9cfor such cause as will\nprom ote the efficiency o f the Service.\xe2\x80\x9d 22 U.S.C. \xc2\xa74010. This provision, which afTords a right to a\nhearing, is designed to \xe2\x80\x9ccontinue! ] the Secretary\xe2\x80\x99s authority . . . to separate any member o f the\nService for cause." See S. Rep. No. 913, 96th Cong., 2d Sess. 55 (1980). We note that the \xe2\x80\x9cefficiency\no f the Service\xe2\x80\x9d standard has been upheld against an overbreadth challenge on the ground that\nCongress did not intend to allow discharge for speech protected by the Constitution. See Arnett v.\nKennedy, 416 U.S. 134 (1974). We believe that the ICA regulations, to the extent that enforcement is\ntaken through disciplinary action, would probably be similarly treated, and thus narrowly construed so\nas not to violate the First Amendment. T o avoid a contrary judicial conclusion, however, the\nregulations should be narrowed. See nn. 5 & 9, supra.\n13O f .course, we express no views on the policy implications o f undertaking disciplinary action\nagainst a form er hostage.\n\n172\n\n\x0cdischarged depends on the specific nature of the duties that they are\ncurrently performing and the extent to which the public statements may\naffect their ability to perform those duties.\nT h e o d o r e B. O l so n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n173\n\n\x0c'


b'May 9, 1977\n\n77-25\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, DEPARTMENT OF\nDEFENSE\nStatus of Baggers as Federal Employees\xe2\x80\x94Fair Labor\nStandards Act\n\nThis is in response to the request of the General Counsel concerning\na disagreement between the Department of Defense (DOD) and the\nCivil Service Commission (CSC) regarding the interpretation of the\nFair Labor Standards A ct of 1938 (FLSA), as amended in 1974, 29\nU.S.C. \xc2\xa7\xc2\xa7 201 et seq. The CSC has determined that individuals who,\nw ith the permission of the commissary, bag and transport DOD com\xc2\xad\nmissary patrons\xe2\x80\x99 purchases in return for tips (\xe2\x80\x9cbaggers\xe2\x80\x9d) are employees\nwithin the scope of the FLSA . It is D O D \xe2\x80\x99s view that this interpretation\n\xe2\x80\x9cconflicts with statutory and traditional concepts of Federal employ\xc2\xad\nment.\xe2\x80\x9d F o r the reasons that follow, we conclude that such concepts are\nnot controlling under the FLSA and that CSC\xe2\x80\x99s application of the\n\xe2\x80\x9ceconomic realities\xe2\x80\x9d test1 to determine questions of employment, even\nin the Federal sector, is proper.\nI\nD O D \xe2\x80\x99s main objection to CSC\xe2\x80\x99s determination lies in its resort to the\n\xe2\x80\x9ceconomic realities\xe2\x80\x9d test in determining whether an individual is an\nemployee for purposes o f the FLSA, and the view that the statute\n\xe2\x80\x9cexpressly excepted from the general definition of \xe2\x80\x98employees\xe2\x80\x99 \xe2\x80\x9d indi\xc2\xad\nviduals employed by the U.S. Government. This line of reasoning, it is\nargued, renders the \xe2\x80\x9ceconomic realities\xe2\x80\x9d standard inoperative as a test\no f Federal employment. It is further contended that the coverage of the\nFL S A is restricted to those who conform to the statutory criteria of\nFederal employment set forth in 5 U.S.C. \xc2\xa7 2105.\n1 T h e \xe2\x80\x9ceconom ic realities\xe2\x80\x9d test, as generally applied by th e courts, simply refers to an\nanalysis o f a c o n tro v e rte d em ploym ent situation based not on isolated factors but rather\n\xe2\x80\x9c upon the circum stances of the w h o le activity.\xe2\x80\x9d Rutherford Food Corp. v. McComb, 331\nU.S. 722, 730 (1947).\n\n102\n\n\x0cWe cannot agree that the statutory framework here leads to such\nconclusion. The pertinent parts of the FLSA definition of \xe2\x80\x9cemployee\xe2\x80\x9d\nin 29 U.S.C. \xc2\xa7 203(e) read as follows:\n(1) Except as provided in paragraphs (2) and (3), the term\n\xe2\x80\x9cemployee\xe2\x80\x9d means any individual employed by an employer.\n(2) In the case of an individual employed by a public agency,\nsuch term means\xe2\x80\x94\n(A) any individual employed by the Government of the\nUnited States\xe2\x80\x94\n(i) as a civilian in the military departments (as defined\nin section 102 of Title 5),\n(ii) in any executive agency (as defined in section 105 of\nsuch title),\n(iii) in any unit of the legislative or judicial branch of\nthe Government which has positions in the competitive\nservice,\n(iv) in a nonappropriated fund instrumentality under the\njurisdiction of the Armed Forces, or\n(v) in the Library of Congress.\nIt is clear that Federal employees are not deemed employees subject to\nthe FLSA by virtue of the \xe2\x80\x9cgeneral\xe2\x80\x9d definition of employee set forth in\n\xc2\xa7 203(a)(1). It is not at all clear, however, how this fact gives rise to a\nconclusion that the \xe2\x80\x9ceconomic realities\xe2\x80\x9d test is to be inapplicable to all\nindividuals working in the Federal sector. The \xe2\x80\x9cexception\xe2\x80\x9d in\n\xc2\xa7 203(e)(1) does not purport to exclude Federal employees from the\nscope o f the statute or create different standards as to them, but merely\nrefers to \xc2\xa7 203(e)(2). This latter provision, except for the kind of em\xc2\xad\nployer to which it relates, adheres strictly to the structure of the\n\xe2\x80\x9cgeneral\xe2\x80\x9d definition in \xc2\xa7 203(e)(1)\xe2\x80\x94that is, the provision defines \xe2\x80\x9cem\xc2\xad\nployee\xe2\x80\x9d as \xe2\x80\x9cany individual employed by\xe2\x80\x9d the pertinent employer. Be\xc2\xad\ncause the \xe2\x80\x9ceconomic realities\xe2\x80\x9d test applies to determine whether this\nrequirement is [fulfilled with respect to the \xe2\x80\x9cgeneral\xe2\x80\x9d definition, it\nwould seem equally applicable to determine whether this same require\xc2\xad\nment is] satisfied with respect to the question of the FLSA\xe2\x80\x99s coverage\nin the Federal sector.\nWhile the \xe2\x80\x9ceconomic realities\xe2\x80\x9d test may have been applicable only\nwith respect to the \xe2\x80\x9cgeneral\xe2\x80\x9d definition prior to the 1974 amendments,\nit does not follow that it should remain so limited today. The \xe2\x80\x9cgeneral\xe2\x80\x9d\ndefinition was the only one in existence prior to 1974, and as such the\n\xe2\x80\x9ceconomic realities\xe2\x80\x9d standard was applicable in every case where the\nquestion of coverage under the definition of \xe2\x80\x9cemployee\xe2\x80\x9d arose. Absent\nsome contrary indication in the amendments themselves or in their\nlegislative history, we would expect that the same approach would hold\ntrue today in ariy case where the issue was whether an individual was\nan employee under the FLSA\xe2\x80\x94whether the individual was associated\nwith the Government or a private employer.\n103\n\n\x0cThere is no such contrary indication here; in fact, all indications are\nthat the \xe2\x80\x9ceconomic realities\xe2\x80\x9d test should be applied in the Federal\nsector and that formal criteria are not to be determinative. Most funda\xc2\xad\nmentally, if Congress had intended that formal criteria were to prevail,\nit would have explicitly so stated. Instead, Congress chose a more\nexpansive approach. An employee is defined by the FLSA as \xe2\x80\x9cany\nindividual employed by the Government of the United States,\xe2\x80\x9d 29\nU.S.C. \xc2\xa7 203(e)(2)(A). [Emphasis added.] In turn, the definition of\n\xe2\x80\x9cemploy\xe2\x80\x9d \xe2\x80\x9cincludes to suffer or permit to work.\xe2\x80\x9d 29 U.S.C. \xc2\xa7 203(g).2\nThe use o f this broadly defined term with reference to the Federal\nGovernment must thus mean that the Government could \xe2\x80\x9cemploy\xe2\x80\x9d an\nindividual even if formal statutory criteria were not met. All that need\nbe done is that the Government \xe2\x80\x9csuffer or permit\xe2\x80\x9d that individual to\nwork in one of the areas specified in \xc2\xa7 203(e)(2)(A)(i)-(v).\nThe legislative history of the provisions at issue here bolsters this\nview. That history shows that Congress intended that coverage under\nthe FLSA \xe2\x80\x9cshould be interpreted broadly,\xe2\x80\x9d S. Rep. No. 690, 93d\nCong., 2d Sess. 56 (1974). Strict adherence to formal criteria of employ\xc2\xad\nment would hardly comport with this general mandate. More specifical\xc2\xad\nly, the legislative history is clear that the reason for extending the\nFLSA to Federal employees was to subject the Federal Government\nand private employers to the \xe2\x80\x9csame standards.\xe2\x80\x9d See 120 Cong. Rec.\n4702 (remarks of Senator Williams). While this expression of intent\ncould be viewed as limited to the payment of similar minimum and\novertime wages, we believe that Congress meant for the \xe2\x80\x9csame stand\xc2\xad\nard\xe2\x80\x9d\xe2\x80\x94including the \xe2\x80\x9ceconomic realities\xe2\x80\x9d test with respect to the scope\nof the A ct\xe2\x80\x94to apply across the board. Any doubt about this point was\nresolved by the committee\xe2\x80\x99s statement:\nIt is the intent of the Committee that the Commission will adminis\xc2\xad\nter the provisions of the law in such a manner as to assure consist\xc2\xad\nency with the meaning, scope, and application established by the\nrulings, regulations, interpretations, and opinions of the Secretary\no f Labor which are applicable in other sectors of the economy. S.\nRep. No. 690, 93d Cong., 2d Sess. 23 (1974). [Emphasis added.] See\nalso H.R. Rep. No. 913, 93d Cong., 2d Sess. 23 (1974).\nThe standards previously established by the Secretary of Labor with\nrespect to the scope and application o f the FLSA would, of course,\ninclude the \xe2\x80\x9ceconomic realities\xe2\x80\x9d approach. The above statement thus\nmakes it quite clear that this same approach is to be applied to the\n2 Significantly, the Supreme C o u rt had previously acknow ledged the broad scope o f\nthe A c t under such definitions:\nIn determ ining w h o are \xe2\x80\x9cem ployees\xe2\x80\x9d under the A ct, com m on law em ployee catego\xc2\xad\nries o r employer-employee classifications under other statutes are not o f controlling\nsignificance . . . . This A ct contains its ow n definitions, com prehensive enough to\nrequire its application to m any persons and w orking relationships w hich, prior to this\nA ct, w ere not deem ed to fall w ithin an em ployer-em ployee category. Walling v.\nPortland Terminal Co., 330 U .S. 148, 150-51 (1947). [Emphasis added.]\n\n104\n\n\x0cquestion whether an individual working for the Federal Government is\nan employee under the FLSA.\nMoreover, the suggested approach of resorting to 5 U.S.C \xc2\xa72105\nseems particularly inappropriate in this case. A resort to that section\nwould ignore completely the definitions of Government employees set\nforth in the FLSA itself. It seems clear that the coverage of the FLSA\nmust be determined by reference to the definitions contained within it,\nand not by criteria set forth in an unrelated title. Nothing is said to\nindicate that the FLSA definitions are not sufficient in themselves; and,\nmore specifically, no reference is made to the definition set forth in 5\nU.S.C. \xc2\xa72105. In fact, Congress indicated its awareness of the rel\xc2\xad\nevance of several provisions of Title 5 by referring to them in \xc2\xa7 203\nitself (i.e., 5 U.S.C. \xc2\xa7\xc2\xa7 102, 105). The absence of any similar reference to\n5 U.S.C. \xc2\xa72105 could suggest that Congress did not intend that provi\xc2\xad\nsion to be applicable here.3 We believe that to resort to 5 U.S.C. \xc2\xa7 2105\nwould disregard the definitions that Congress carefully framed for\npurposes of the FLSA and made determinative a set of criteria that\nCongress gave no indication were to be relevant.4\nII\nThe D O D also points out that, if baggers are regarded as employees\nwithin the FLSA, problems arise with respect to other statutes\xe2\x80\x94for\nexample, the conflict-of-interest laws, 18 U.S.C. \xc2\xa7\xc2\xa7201 et seq., and the\nFederal T ort Claims Act, 28 U.S.C. \xc2\xa7\xc2\xa7 1346(b), 2671 et seq. We do not\nbelieve that CSC\xe2\x80\x99s conclusion here is determinative of the question\nwhether a bagger is an employee for purposes of these other provisions.\nThe problems adverted to, therefore, may not exist. Even if problems\narise, it will not be due to CSC\xe2\x80\x99s determination with respect to the\nFLSA, but rather by reason of the language of these other provisions\nand Congress\xe2\x80\x99 purpose in enacting them.\nThe D O D might argue that Congress\xe2\x80\x99 failure to provide for baggers\nin some respects\xe2\x80\x94such as appropriations or manpower ceilings\xe2\x80\x94indi\xc2\xad\ncates that Congress did not intend to allow baggers to be paid out of\nFederal funds and, therefore, by implication, did not intend that bag\xc2\xad\ngers be regarded as employees within the FLSA. We think, however,\n3 N or is there any indication in 5 U .S.C. \xc2\xa72105 to the contrary. By its ow n term s, that\nprovision exists \xe2\x80\x9c for the purpose o f this title\xe2\x80\x9d ; the legislative history also indicates that\nthe section is designed only for the purposes o f T itle 5. See S. Rep. No. 1380, 89th Cong.,\n2d Sess. 47 (1966).\n4 In fact, if 5 U.S.C. \xc2\xa7 2105 w ere to be determ inative here, it w ould not only ignore but\nalso com pletely nullify some o f the provisions explicity set forth in \xc2\xa7 203. F o r exam ple,\n\xc2\xa7 203 includes those em ployed \xe2\x80\x9cin a nonappropriated fund instrum entality under the\njurisdiction o f the A rm ed Forces.\xe2\x80\x9d 29 U.S.C. \xc2\xa7 203(e)(2)(A)(iv). A resort to the standards\no f 5 U.S.C. \xc2\xa72105, how ever, w ould exclude from the definition o f em ployee (for p u r\xc2\xad\nposes o f law s adm inistered by the C SC ) \xe2\x80\x9can em ployee paid from nonappropriated funds\xe2\x80\x9d\no f m ilitary exchanges and other instrum entalities o f the United States under the ju risd ic \xc2\xad\ntion o f the A rm ed Forces. 5 U.S.C. \xc2\xa7 2105(c). W e cannot believe that C ongress m eant, on\nthe one hand, to set forth certain criteria and, on the other, intended th at a m andated\nresort to another statutory provision w ould abrogate those criteria.\n\n105\n\n\x0cthat this argument reads too much into Congress\xe2\x80\x99 silence. In view of\nthe broad language of the FLSA and Congress\xe2\x80\x99 aims underlying it, it is\nour opinion that, in order for other provisions of law to create an\nexception, they must do so specifically and clearly. Morton v. Mancari,\n417 U.S. 535, 551 (1974). We therefore conclude that possible inconsis\xc2\xad\ntency with appropriation authorization cannot be deemed to create an\nexception to the usual standards by which the FLSA is to be applied.5\nIll\nThe D O D also argues that, even if the \xe2\x80\x9ceconomic realities\xe2\x80\x9d test does\napply, the most important factor to be considered is whether the indi\xc2\xad\nvidual involved has met the formalities required by statute. If this is\nmeant to imply that the statutory criteria of Title 5 are to be determina\xc2\xad\ntive, it is merely a restatement of your primary argument and must fail\nfor the reasons discussed above.\nM oreover, we doubt whether it is even proper to regard a failure to\nsatisfy statutory criteria as o f great, rather than controlling, importance.\nThe courts have made clear that the test of an employment relationship\nis not to depend on technical or isolated factors, but rather \xe2\x80\x9cupon the\ncircumstances of the whole activity.\xe2\x80\x9d Rutherford Food Corp. v.\nMcComb, supra, at 730; Goldberg v. Whitaker House Cooperative, Inc.,\n366 U.S. 28, 33 (1961); Hodgson v. Griffin and Brand o f McAllen, Inc.,\n471 F. 2d 235, 237 (5th Cir. 1973). Thus CSC might quite properly\naccord more weight to other factors more indicative of the economic\nrealities o f the situation.\nW e do not read your request for our opinion as asking for our views\ngenerally as to CSC\xe2\x80\x99s application of the \xe2\x80\x9ceconomic realities\xe2\x80\x9d test to the\nfacts of this particular case. Nor do we believe that such as assessment\nis within our province, because such determinations are lodged by law\nin the Commission. 29 U.S.C. 204(f). Additionally, insofar as the appli\xc2\xad\ncation of the \xe2\x80\x9ceconomic realities\xe2\x80\x9d test involves an examination of all the\nrelevant facts and circumstances, we think that the Commission is\nbetter suited than this Office to make such a determination. In fact, to\n\n5 T h e fact th at C ongress has d irected D O D to reduce com m issary personnel and the\nco st o f com m issary operations, is not so specifically o r explicitly addressed to the\nsituation here as to allow for an exception to C ongress\xe2\x80\x99 expansive approach in the 1974\nam endm ents. R ather, the mandate to cut costs m ust be view ed in light o f the usual rule\nth a t congressional enactm ents are to be read in harm ony, see, Morton v. Mancari, supra,\nand w e thus believe th at this directive m ust be applied w ithin the constraints imposed by\no th e r congressional enactments.\n\n106\n\n\x0cthe extent that such an evaluation is a mixed question of law and fact,6\nit is beyond the authority of this Office. 28 U.S.C. \xc2\xa7512. See 20 Op.\nA.G. 240, 242 (1891); 20 Op. A.G. 711 (1894); 19 Op. A.G. 676 (1890).\nThe decision to apply the FLSA concept of employment to the\nFederal sector was made by Congress, and in our opinion any other\nview would depart from the broad language of the statute and Con\xc2\xad\ngress\xe2\x80\x99 underlying purpose. We accordingly conclude that the criteria of\nTitle 5 are not controlling and that CSC\xe2\x80\x99s application of the \xe2\x80\x9ceconomic\nrealities\xe2\x80\x9d test to determine the question of the applicability of the\nFLSA in the Federal sector is proper.\nJohn M. H\n\narm on\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\xa2W hile the courts have adopted different approaches to this problem , compare, Walling\nv. General Industries Co., 330 U.S. 545, 550 (1947), Wirtz v. Lone Star Steel Company, 405\nF. 2d 663, 669-70 (5th Cir. 1968) (applying the clearly erroneous rule to a question\ninvolving the application o f the FL SA ), with Rutherford Food Corp. v. McComb, supra,\nShultz v. Hinojasa, 432 F. 2d 259, 264 (5th Cir. 1970) (regarding the question o f F L S A\ncoverage as one o f law), the question here, involving the application o f a standard to all\nthe circum stances o f a given situation, presents a mixed question o f law and fact. T his\nappears particularly true w here, as here, inferences that are draw n from the facts and are\nfactors in the ultim ate determ ination are subject to conflicting interpretations; yo u r\nD epartm ent\xe2\x80\x99s and the Com mission\xe2\x80\x99s differences on the question o f supervision o r co n tro l\nare one such example.\n\n107\n\n\x0c'