b'June 5, 1978\n\n78-31\n\nMEMORANDUM OPINION FOR THE DEPUTY\nASSISTANT ATTORNEY GENERAL, CRIMINAL\nDIVISION\nIntelligence\xe2\x80\x94 Warrantless Electronic Surveillance\xe2\x80\x94\nCommon Carriers (18 U.S.C. \xc2\xa7\xc2\xa7 2510-2520, 47\nU.S.C. \xc2\xa7 605)\n\nThis is in response to your request for our opinion regarding the legality of\ncooperation by common carriers in providing the Federal Government with\ntechnical assistance in connection with warrantless electronic surveillance for\nforeign intelligence purposes.1 We conclude that such activities are not\nprohibited by \xc2\xa7 605 of the Communications Act, 47 U.S.C. \xc2\xa7605; nor do they\nviolate chapter 119 or title 18, United States Code, 18 U.S.C. \xc2\xa7\xc2\xa7 2510 -2520,\nTitle III of the Omnibus Crime Control and Safe Streets Act of 1968, as\namended.\nI. Section 605 of the Communications Act\nSection 605 provides in pertinent part that:\nExcept as authorized by chapter 119, Title 18, no person receiving,\nassisting in receiving, transmitting, or assisting in transmitting, any\ninterstate or foreign communication by wire or radio shall divulge or\npublish the existence, contents, substance, purport, effect or meaning\nthereof, except through authorized channels of transmission or\nreception, (1) to any person other than the addressee, his agent, or\nattorney, (2) to a person employed or authorized to forward such\ncommunication to its destination, (3) to proper accounting or distrib\xc2\xad\nuting officers of the various communicating centers over which the\ncommunication may be passed, (4) to the master of a ship under\nwhom he is serving, (5) in response to a subpoena issued by a court\nof competent jurisdiction, or (6) on demand of other lawful\nauthority. . . .\n\'Y ou have indicated that only limited technical assistance, not interception and disclosure perse,\nwould be requested. The scope o f this m em orandum is limited accordingly.\n\n123\n\n\x0cThis language, found in the first sentence of \xc2\xa7 605, is designed to regulate the\nconduct of communications personnel. S. Rept. No. 1097, 90th Cong., 2d\nsess., 1968 U.S. Code Cong. & Admin. News, at 2197. The remainder of the\nsection deals only with radio communications. The current language was\nadopted in 1968 as \xc2\xa7 803 of the Omnibus Crime Control and Safe Streets Act.\nThe provision was \xe2\x80\x9c not intended merely to be a reenactment of (old] section\n605. . . [but was] intended as a substitute.\xe2\x80\x9d Id., at 2196.\nAlthough the 1968 changes have in certain respects rendered pre-1968\njudicial interpretations inapplicable,2 certain interpretations may have contin\xc2\xad\nued vitality. Thus, in United States v. Russo, 250 F. Supp. 55, 58-59 (E.D. Pa.\n1966), the court treated the first clause of \xc2\xa7 605 as applicable under only very\nnarrow circumstances, unlike those here at issue, indicating that the statute\xe2\x80\x99s\nlanguage was\n. . . designed to apply to persons such as telegram or radiogram\noperators, who must either learn the content of the message or handle\na written record of communications in the course of their employ\xc2\xad\nment. Clause 1 recognizes that the integrity of the communication\nsystem demands that the public be assured that employees who thus\ncome to know the content of messages will in no way breech the trust\nwhich such knowledge imposes on them.\nAlso significant is the holding of the Court of Appeals for the Third Circuit,\nin United States v. Butenko, 494 F. (2d) 593 (en banc), cert, denied sub nom.,\nIvanov v. United States. 419 U.S. 881 (1974), that in its earlier form the\nprovision was simply not intended to reach wiretapping undertaken pursuant to\nPresidential order for foreign intelligence purposes.The provision of technical\nassistance for this limited purpose, using similar reasoning, would also seem to\nfall outside the current scope of \xc2\xa7 605, particularly since an express disclaimer\nof such coverage appears in 18 U.S.C. \xc2\xa7 2511(3), discussed below, which was\nenacted at the same time.\nThe language and legislative history of \xc2\xa7 605, as amended, provide addi\xc2\xad\ntional support for the view that the provision presents no bar to a carrier\xe2\x80\x99s\ntechnical assistance in connection with warrantless intelligence taps. In its\npresent form, the section simply bars divulgence of the existence or content of\nwire communications. Cooperation in identifying lines or otherwise providing\nnecessary technical information to facilitate Government taps does not involve\ndisclosures of this sort. Moreover, the legislative history of the amended\nprovision states that \xe2\x80\x9c [T]he regulation of the interception of wire and oral\ncommunications in the future is to be governed by proposed new chapter 119 of\ntitle 18, United States Code [18 U.S.C. \xc2\xa7\xc2\xa7 2510-2520].\xe2\x80\x9d S. Rept. No. 1097,\nsupra, 1968 U.S. Code Cong. & Admin. News, at 2196. Rather than assuming\nthat Congress intended separately to regulate interceptions (in title 18) and\ndisclosures (in \xc2\xa7 605), the courts have indicated that Congress effectively\n\xe2\x80\x9c\'Significantly, under the earlier version the restrictions contained in the second through fourth\nsentences o f the current provision, now applicable only to radio com m unications, also governed\ncom m unications by wire.\n\n124\n\n\x0cshifted control of electronic surveillance operations to 18 U.S.C. \xc2\xa7\xc2\xa7 2510-2520.\nSee, United States v. Falcone, 505 F. (2d) 478, 482 (3d Cir. 1974), cert,\ndenied, 420 U.S. 955 (1975). Cf., Hodge v. Mountain States Telegraph &\nTelephone Co., 555 F. (2d) 254, 264 (9th Cir. 1977) (Hufstedler, J.,\n\nconcurring) (pen registers not barred by chapter 119 of title 18 and therefore not\ncovered by \xc2\xa7 605).\nFor these reasons we believe that communication carriers who provide\nlimited technical assistance in connection with Presidentially authorized warrantless\nelectronic surveillance undertaken for foreign intelligence purposes will not\nviolate \xc2\xa7 605 of the Communications Act.\nII. 18 U.S.C. \xc2\xa7\xc2\xa7 2510-2520 (Title III)\nSection 2511(1) of title 18, United States Code, forbids interception of wire\nor oral communications, use of various devices to intercept oral communica\xc2\xad\ntions, disclosure of the content of wire or oral communications, and use of the\ncontents of such communications knowing that they have been obtained\nthrough illegal interception. \xe2\x80\x9c Intercept\xe2\x80\x9d is defined as \xe2\x80\x9c the aural acquisition of\nthe contents of any wire or oral communication through the use of any\nelectronic, mechanical, or other device\xe2\x80\x9d 18 U.S.C. \xc2\xa7 2510(4). Identification of\nparticular telephone lines or provision of other technical assistance, knowing\nthat another intends to undertake electronic surveillance, does not fall within\nthe statutory language. Only actual interception or disclosure is forbidden, not\nlesser acts facilitating such consequences. The possibility that such conduct\nwould be treated by a court as falling within the terms of the statute for the\npurpose of aiding or abetting or of a conspiracy charge where the electronic\nsurveillance is not authorized pursuant to title III. cf.. White v. Weiss, 535 F.\n(2d) 1067 (8th Cir. 1976) (private detective\xe2\x80\x99s participation in interception by\nproviding equipment and instruction in its installation held basis for liability\nunder \xc2\xa7 2520), appears to be foreclosed by reference to the limitation on the\nscope of the title III prohibitions appearing in 18 U.S.C. \xc2\xa7 2511(3).\nSection 2511(3) provides:\nNothing contained in this chapter or in section 605 of the Communi\xc2\xad\ncations Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the\nconstitutional power of the President to take such measures as he\ndeems necessary to protect the Nation against actual or potential\nattack or other hostile acts of a foreign power, to obtain foreign\nintelligence information deemed essential to the security of the\nUnited States, or to protect national security information against\nforeign intelligence activities. Nor shall anything contained in this\nchapter be deemed to limit the constitutional power of the President\nto take such measures as he deems necessary to protect the United\nStates against the overthrow of the Government by force or other\nunlawful means, or against any other clear and present danger to the\nstructure or existence of the Government. . . .\n125\n\n\x0cThe Supreme Court, in United States v. United States District Court (Keith),\n407 U.S. 297 (1972), a case involving warrantless surveillance of a domestic\norganization allegedly inclined to attack and subvert the existing structure of\nGovernment, interpreted this provision not as a grant of authority to conduct\nwarrantless national security searches, but as a disclaimer of congressional\nintent to define Presidential powers in matters affecting national security. In\nthis limited context, the Court held that the Fourth Amendment warrant\nrequirement did apply; in so doing, however, it appeared to assume that title III\nlimitations were inapplicable, for it discussed at some length the possible\nvariations in procedural requirements that might be permissible under the\nConstitution. Id., at 322-323. The Keith decision provides guidance concern\xc2\xad\ning the President\xe2\x80\x99s constitutional power to undertake surveillance, while at the\nsame time it construes \xc2\xa7 2 5 11 (3) broadly to exempt from coverage under title III\nPresidential action with regard to both national security and foreign intelligence\nsurveillance, at least in the absence of further action by Congress.\'\' The Court\xe2\x80\x99s\nclear language supports this interpretation: \xe2\x80\x9c We therefore think the conclusion\ninescapable that Congress only intended to make clear that the Act simply did\nnot legislate with respect to national security surveillance.\xe2\x80\x9d Id., at 306.\nAn alternative interpretation of Keith was suggested in Zweibon v. Mitchell,\n516, F. (2d) 594 (D.C. Cir. 1975), cert, denied, 425 U.S. 944 (1976). In an\nopinion joined by Judges Leventhal and Robinson, and concurred in by Judge\nBazelon, Judge Wright there asserted that the requirements of title III should\nbe deemed to apply as fully as possible where warrantless electronic surveil\xc2\xad\nlance at the behest of the President was not found to be constitutionally\nauthorized; specifically where such surveillance was directed against members\nof a domestic organization whose activities could affect the foreign relations of\nthe United States, but who were neither agents of nor collaborators with a\nforeign power.4 At the same time, both Judge Wright and the other members of\nthe court were careful to stress that the case did not require them to resolve the\nmore difficult question left undecided in Keith, see 407 U.S. at 322, i.e.,\nwhether a warrant is constitutionally required in connection with electronic\nsurveillance of collaborators or agents of a foreign power. Courts of appeal in\nthree circuits have squarely held that warrants are not required under those\ncircumstances. United States v. Buck, 548 F. (2d) 871 (9th Cir. 1977); United\nStates v. Butenko, supra; United States v. Brown, 484 F. (2d) 418 (5th Cir.\n1973). See also, United States v. Humphrey, Crim. No. 78-25-A (E.D. Va.,\nMarch 31, 1978), memorandum opinion at 8. In light of this clear and growing\nauthority, we do not believe that Judge Wright\xe2\x80\x99s analysis in Zweibon regarding\n3In a recent decision, the U .S . District C ourt for the Eastern District of Pennsylvania adopted this\nview, holding that if it is established that surveillance is conducted for national security purposes,\nno right o f action based on failure to com ply with title III will lie. despite the conclusion that in that\ncase there was a constitutional requirem ent that a warrant be procured. See. Burkhart v. Saxbe. 448\nF. Supp. 588 (E .D . Pa. 1978).\n4Judges W ilkey, M acK innon, and M cG ow an rejected this interpretation of Keith; Judge Robb,\nconcurring in the result but not in the relevant portion o f the W right opinion, found title III\napplicable on the facts presented. It is therefore far from clear that the W right view should be seen\nas controlling.\n\n126\n\n\x0cthe breadth of application to be given the provisions of title III will be extended\nto render telephone companies liable for providing technical assistance in\nconnection with even constitutionally flawed surveillances undertaken pursuant\nto Presidential authorization for foreign intelligence purposes.5\nGiven our conclusion that the proscriptions of title III do not apply where,\npursuant to Presidential authorization, Federal agents carry out warrantless\nelectronic surveillance for foreign intelligence purposes, we must nevertheless\ninquire whether telephone companies which provide necessary technical\nassistance at the request of the Government are equally exempt from liability. It\nwould seem to follow that Congress, intending to leave unimpaired the\nPresident\xe2\x80\x99s authority in this regard, did not seek to bar cooperation by\ntelephone companies where needed to accomplish the permitted end. Cf.,\nFowler v. Southern Bell Telephone & Telegraph Co., 343 F. (2d) 150, 156-157\n(5th Cir. 1965) (recognizing a common law immunity from liability for\ntelephone companies engaged in assisting immune State officials). This notion\nis strengthened by analogy to \xc2\xa7 251 l(2)(a), as amended in 1970, to provide that\n(ii) It shall not be unlawful under this chapter for an officer,\nemployee, or agent of any common carrier to provide information,\nfacilities, or technical assistance to an investigative or law enforce\xc2\xad\nment officer who, pursuant to this chapter, is authorized to intercept a\nwire or oral communication.\nSection 2511 (2)(a) and two other contemporaneous amendments to title III6\nspecifically provide for limited assistance in connection with court-authorized7\nelectronic surveillance which complies with the procedural protections of title\nIII, but do not in terms immunize carriers who provide such limited assistance\n\n5See Burkhart v. Saxbe, supra. It should, nevertheless, be noted that the Humphrey decision may\nbe viewed as raising particular questions in this regard. T here, the court held that a w arrant was\nrequired by virtue o f the Fourth Am endm ent once the gathering o f evidence o f crim inal activity,\nrather than the accum ulation o f foreign intelligence inform ation, had becom e the primary purpose\no f Presidentially authorized electronic surveillance, but did not analyze the issue in term s o f title\nHI. W e do not believe that such a recognition of the G overnm ent\xe2\x80\x99s obligation under the\nConstitution to seek a judicial warrant at this later tim e should affect the liability o f telephone\ncom panies under title III. Section 2 5 11 (3) states that nothing in chapter 119 o f title 18 (title III) is to\nbe read as lim iting the President\xe2\x80\x99s constitutional pow er to undertake foreign intelligence\nsurveillances as necessary. Interpreting title 111 to render telephone com panies liable for providing\nnecessary technical assistance w henever an investigation later changes in character (without their\nknowledge) so that a warrant is constitutionally required would effectively deter their participation\nat the outset. This result is questionable since it im pinges upon the carefully preserved and\njudicially recognized Presidential pow er with regard to foreign intelligence surveillances.\n6See 18 U .S .C . \xc2\xa7 2518(4) (on request o f the applicant for a court order com pelling a\ncom m unications com m on carrier to fum ish inform ation, facilities, and technical assistance in\nconnection with court-authorized interception); 18 U .S .C . \xc2\xa7 2520 (expanding the defense o f good\nfaith reliance on court orders or on the provisions o f \xc2\xa7 2518(7) to include reliance on court order or\n"legislative authorization").\n7The Suprem e Court in Keith, as earlier discussed, found that \xc2\xa7 2511(3) did not constitute\ncongressional \xe2\x80\x9c authorization\xe2\x80\x9d o f w arrantless intelligence surveillance undertaken pursuant to\nPresidential order.\n\n127\n\n\x0cin connection with Presidentially authorized surveillance.8 At the same time,\nhowever, they do demonstrate Congress\xe2\x80\x99 intent not to penalize under title 111\nthose who render this sort of aid in connection with electronic eavesdropping\nthat is lawfully undertaken.9 The decision in Halperin v. Kissinger, .424, F.\nSupp. 838 (D.D.C. 1974), provides some support for this view insofar as the\ndistrict court there found a telephone company which had provided limited\ntechnical assistance while acting in reliance on the representations of Govern\xc2\xad\nment officials to be without liability.10 Based on the above reasoning and this\nlimited authority, we therefore believe that it may properly be concluded that\ntitle III imposes no criminal or civil liability on common carriers which provide\nlimited technical assistance pursuant to a Government request in connection\nwith Presidentially authorized electronic surveillance for foreign intelligence\npurposes.\nIII. Conclusion\nThere have been few judicial decisions considering the liability of telephone\ncompanies which provide technical assistance in the conduct of foreign\nintelligence surveillances. However, based on relevant statutory provisions, we\nbelieve that no liability is likely to be found under 47 U.S.C. \xc2\xa7 605, as\namended. Additionally, it is our view that liability for rendering technical\nassistance at least in connection with Presidentially authorized warrantless\nelectronic surveillance of an agent or collaborator of a foreign power could not\nbe founded on the provisions of Title III of the Omnibus Crime Control and Safe\nStreets Act of 1968, as amended.\nJo h n M . H a rm o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9cThe am endm ents were adopted in 1970 as part o f the District o f Colum bia Court Reorganization\nAct. Their limited legislative history indicates that they were intended m erely to clarify C ongress\xe2\x80\x99\nintent under title III o f the 1968 Act. 115 Cong. Rec. 37192-93 (1970) (rem arks by Senator\nM cClellan). The Suprem e Court has held that the am endm ents were primarily designed to overrule\nthe Ninth C ircu it\xe2\x80\x99s decision in Application o f the United States, 427 F. (2d) 639 (1970), which had\nconcluded that district courts lack pow er to compel a telephone com pany to assist in a wiretap\nconducted pursuant to title III. United States v. New York Telephone Co.. 434 U. S. 159, 177, n.\n25 (1977). T he use o f such language to clarify C ongress\xe2\x80\x99 intent in enacting title III does not compel\nthe conclusion that the earlier version o f the law did not permit the rendering o f such assistance.\n\nC f. ibid.\n\'\'That lim ited technical aid was expressly sanctioned does, how ever, by im plication, suggest that\ndirect telephone com pany involvem ent in interception and disclosure was not at the same time\napproved.\nl0It is unclear which o f these distinguishable grounds and statutory bases (\xc2\xa7 251 l(2)(a),\nconcerning technical assistance, o r \xc2\xa7 2520, concerning good faith reliance) served ultim ately as the\nbasis for the co u rt\xe2\x80\x99s ruling.\n\n128\n\n\x0c'


b'Applicability of Post-Employment Restrictions in\n18 U.S.C. \xc2\xa7 207 to a Former Government Official\nRepresenting a Former President or Vice President in\nConnection with the Presidential Records Act\nTitle 18, section 207, U.S. Code, would not prohibit a former government official from representing a\nformer President or former Vice President in connection with his role under the Presidential Records\nAct, 44 U.S.C. \xc2\xa7\xc2\xa7 2201-2207 (1994).\n\nJune 20, 2001\n\nMEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT\nYou have requested our opinion whether 18 U.S.C. \xc2\xa7 207 (1994 & Supp. II\n1996) would prohibit a former government official from representing a former\nPresident in connection with his role under the Presidential Records Act, 44\nU.S.C. \xc2\xa7\xc2\xa7 2201-2207 (1994) (\xe2\x80\x9cPRA\xe2\x80\x9d), and whether it would prohibit such a\nperson from representing a former Vice President in a similar capacity. We\nconclude that 18 U.S.C. \xc2\xa7 207 would not prohibit such representation. 1\nI.\nTitle 18, section 207 imposes restrictions on the ability of former federal\nemployees to represent third parties on certain matters before certain federal\nagencies and other entities. Specifically, 18 U.S.C. \xc2\xa7 207(a)(1) prohibits\n[a]ny person who [was] an officer or employee (including any special Government employee) of the executive branch of the United\nStates . . . [from] knowingly mak[ing], with the intent to influence,\nany communication to or appearance before any officer or employee\nof any department, agency, court, or court-martial of the United\n\n1\nOn January 19, 2001, Counsel to the President Beth Nolan asked our opinion on this same question, limited to the representation of a former President. At that time, we orally advised Ms. Nolan that\nif the individual representing the former President were employed under the Presidential Transition\nAct, 3 U.S.C. \xc2\xa7 102 note (1994) (\xe2\x80\x9cPTA\xe2\x80\x9d), and did not receive compensation for the representation from\nany source other than the transition, he or she would not be barred by 18 U.S.C. \xc2\xa7 207 from providing\nsuch representation during the six months covered by the PTA (i.e., six months following the change in\npresidential administrations). That advice was based upon a 1988 opinion of this Office. See Letter for\nHon. Frank Q. Nebeker, Director, Office of Government Ethics, from Douglas W. Kmiec, Assistant\nAttorney General, Office of Legal Counsel (Nov. 18, 1988). You have now requested our opinion\nwhether 18 U.S.C. \xc2\xa7 207 permits a former government official to represent a former President in\nconnection with his advisory role under the PRA even after the six-month period covered by the PTA.\nYou have also asked us to address the same question with regard to representation of a former Vice\nPresident.\n\n120\n\n227-329 VOL_25_PROOF.pdf 130\n\n10/22/12 11:10 AM\n\n\x0cApplicability of Post-Employment Restrictions in 18 U.S.C. \xc2\xa7 207\n\nStates or the District of Columbia, on behalf of any other person\n(except the United States or the District of Columbia) in connection\nwith a particular matter\xe2\x80\x94\n(A) in which the United States or the District of Columbia is a\nparty or has a direct and substantial interest,\n(B) in which the person participated personally and substantially\nas such officer or employee, and\n(C) which involved a specific party or specific parties at the time\nof such participation.\nUnder 18 U.S.C. \xc2\xa7 207(c), certain senior personnel face an additional prohibition.\nSpecifically, a person falling within categories set out in section 207(c)(2) may\nnot,\nwithin 1 year after the termination of his or her service or employment . . . knowingly make[], with the intent to influence, any communication or appearance before any officer or employee of the\ndepartment or agency in which [the] person served . . . , on behalf or\nany other person (except the United States), in connection with any\nmatter on which such person seeks official action by any officer or\nemployee of such department or agency. 2\nSection 207 also specifies an exception to its various prohibitions that is particularly relevant here: It provides that \xe2\x80\x9c[t]he restrictions contained in this section shall\nnot apply to acts done in carrying out official duties on behalf of the United\nStates.\xe2\x80\x9d Id. \xc2\xa7 207(j)(1).\nUnder the PRA, the Archivist of the United States is directed to restrict public\naccess to prior presidential administrations\xe2\x80\x99 records that meet certain criteria\ndefined by the statute. See 44 U.S.C. \xc2\xa7 2204(a)-(b)(1). The PRA further provides\nthat \xe2\x80\x9c[d]uring the period of restricted access . . . the determination whether access\nto a Presidential record or reasonably segregable portion thereof shall be restricted\n\n2\nSection 207(d) may also be relevant. That section establishes further restrictions on the postemployment activities of certain \xe2\x80\x9cvery senior personnel\xe2\x80\x9d of the Executive Branch and independent\nagencies. Specifically, it prohibits a person (defined in section 207(d)(1)(A)-(C)), within one year\nfollowing the termination of his or her service, from communicating on behalf of any other person\n(except the United States) with any officer or employee of the agency or department where the covered\nperson previously served in the year before his or her service terminated, and with any person\nappointed to an executive position listed in 5 U.S.C. \xc2\xa7\xc2\xa7 5312, 5313, 5314, 5315, or 5316 (Supp. V\n1999). Those subject to section 207(d) include persons appointed by the President under 3 U.S.C.\n\xc2\xa7 105(a)(2)(A) (1994) or by the Vice President under 3 U.S.C. \xc2\xa7 106(a)(1)(B).\n\n121\n\n227-329 VOL_25_PROOF.pdf 131\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nshall be made by the Archivist, in his discretion, after consultation with the former\nPresident.\xe2\x80\x9d Id. \xc2\xa7 2204(b)(3). 3 In the case of Vice-Presidential records, the PRA\nprovides that they \xe2\x80\x9cshall be subject to the provisions of [the PRA] in the same\nmanner as Presidential records,\xe2\x80\x9d and that \xe2\x80\x9c[t]he duties and responsibilities of the\nVice President, with respect to Vice-Presidential records, shall be the same as the\nduties and responsibilities of the President under this chapter with respect to\nPresidential records.\xe2\x80\x9d Id. \xc2\xa7 2207.\nRegulations implementing the PRA anticipate that former Presidents may\ndesignate representatives in matters relating to their consultative role under the\nPRA. See 36 C.F.R. \xc2\xa7 1270.46(a) (2001) (\xe2\x80\x9cThe Archivist or his designee shall\nnotify a former President or his designated representative(s) before any Presidential records of his Administration are disclosed.\xe2\x80\x9d); see also Exec. Order No. 12667\n(Jan. 18, 1989) (providing that the Archivist shall notify a former President \xe2\x80\x9cor his\ndesignated representative\xe2\x80\x9d of the Archivist\xe2\x80\x99s decision whether to honor the former\nPresident\xe2\x80\x99s assertion of executive privilege). 4 During the Clinton Administration,\nthe White House Counsel\xe2\x80\x99s Office expressed the view that a former President\nwould require legal advice in order to consult effectively with the Archivist as\ncontemplated by the PRA, and that an attorney advising a former President on\nsuch matters would need to communicate on the former President\xe2\x80\x99s behalf not just\nwith the Archivist, but with the current White House and possibly other federal\nagencies as well. The question here is whether, under section 207\xe2\x80\x99s postemployment restrictions, an attorney could engage in such communications on the\nformer President\xe2\x80\x99s behalf if the attorney had served in the White House Counsel\xe2\x80\x99s\nOffice or elsewhere in the federal government during the former President\xe2\x80\x99s\nadministration. The same question applies to representation of a former Vice\nPresident in connection with the PRA. The National Archives and Records\nAdministration (\xe2\x80\x9cNARA\xe2\x80\x9d) states that although the designated representatives of\nformer Presidents Reagan and Bush are former officials from their respective\nadministrations, \xe2\x80\x9cconcern about this issue was simply never contemplated by\nNARA, OGE, DOJ, or any incumbent or former President or Vice President or\ndesignated representative prior to the end of the Clinton Administration.\xe2\x80\x9d See\nLetter for Robert W. Cobb, Associate Counsel to the President, from Gary M.\nStern, General Counsel, National Archives and Records Administration at 1\n(May 3, 2001) (\xe2\x80\x9cStern Letter\xe2\x80\x9d).\n\n3\nThe PRA also specifies that none of its provisions is to be construed to \xe2\x80\x9cconfirm, limit, or expand\nany constitutionally-based privilege which may be available to an incumbent or former President.\xe2\x80\x9d 44\nU.S.C. \xc2\xa7 2204(c)(2).\n4\nSimilarly, the PRA itself recognizes that former Presidents may, in certain limited circumstances,\nbe represented by third parties for purposes of the PRA. Specifically, the PRA provides that, \xe2\x80\x9c[u]pon\nthe death or disability of a . . . former President, any discretion or authority the . . . former President\nmay have had under this chapter shall be exercised by the Archivist unless otherwise previously\nprovided by the . . . former President in a written notice to the Archivist.\xe2\x80\x9d 44 U.S.C. \xc2\xa7 2204(d).\n\n122\n\n227-329 VOL_25_PROOF.pdf 132\n\n10/22/12 11:10 AM\n\n\x0cApplicability of Post-Employment Restrictions in 18 U.S.C. \xc2\xa7 207\n\nII.\nThe key question is whether an individual who communicates with federal\nagencies on behalf of a former President or Vice President in these circumstances\nis, within the meaning of section 207, acting \xe2\x80\x9con behalf of any other person\n(except the United States or the District of Columbia).\xe2\x80\x9d 5 18 U.S.C. \xc2\xa7 207(a); see\nid. \xc2\xa7 207(c). If so, section 207\xe2\x80\x99s prohibitions apply. If, however, such an individual\nis \xe2\x80\x9ccarrying out official duties on behalf of the United States,\xe2\x80\x9d id. \xc2\xa7 207(j)(l), or is\notherwise not acting \xe2\x80\x9con behalf of any other person (except the United\nStates . . .),\xe2\x80\x9d section 207\xe2\x80\x99s prohibitions do not apply. For the reasons discussed\nbelow, we conclude that section 207\xe2\x80\x99s prohibitions do not apply to this sort of\nrepresentation.\nThis Office has previously concluded that in using the phrase \xe2\x80\x9con behalf of\xe2\x80\x9d in\nsection 207, \xe2\x80\x9cCongress intended . . . to reach only communications made as a\nrepresentative of another, not communications that merely support another or\nanother\xe2\x80\x99s position.\xe2\x80\x9d Memorandum for Michael Boudin, Deputy Assistant Attorney\nGeneral, Antitrust Division, from J. Michael Luttig, Assistant Attorney General,\nOffice of Legal Counsel, Re: Application of 18 U.S.C. \xc2\xa7 207(a) to Pardon\nRecommendation Made by Former Prosecutor at 3 (Oct. 17, 1990) (\xe2\x80\x9cLuttig\nMemorandum\xe2\x80\x9d). Typically, the hallmark of such a relationship is \xe2\x80\x9cat least some\ndegree of control by the principal over the agent who acts on his or her behalf.\xe2\x80\x9d Id.\nat 6; see Restatement (Second) of Agency \xc2\xa7 1(1) (1958). An attorney representing\na former President in connection with the President\xe2\x80\x99s consultative role under the\nPRA would be acting \xe2\x80\x9con behalf of\xe2\x80\x9d the former President as defined in section\n207. See Public Citizen, Inc. v. Department of Justice, 111 F.3d 168, 172 (D.C.\n5\nIn at least three circumstances, we could conclude that at least some of section 207 would not\napply, without reaching the \xe2\x80\x9con behalf of\xe2\x80\x9d issue. None of these circumstances, however, allows us to\navoid the \xe2\x80\x9con behalf of\xe2\x80\x9d issue here. First, we assume that the attorney representing the former President\nor Vice President would be a former employee of the White House or Vice President\xe2\x80\x99s Office,\nrespectively, and that the kind of communications being contemplated here would include communications with either the White House or Vice President\xe2\x80\x99s Office. If this were not the case, then section\n207(c) would not apply, since it covers only appearances before and communications with the federal\nagency in which the person was previously employed. Section 207(a) would apply, however, since it\ncovers appearances before and communications with any federal agency or department. As to some\nformer officials, moreover, section 207(d) would apply if the communications at issue were with either\nthe White House or any official appointed to an Executive Branch position listed in 5 U.S.C. \xc2\xa7 5312,\n5313, 5314, 5315, or 5316.\nSecond, we assume that at least some of the contemplated communications would take place within\none year of the attorney\xe2\x80\x99s departure from the government. If this were not the case, sections 207(c) and\n(d) would again not apply, this time because they each establish only a one-year ban on communications. Section 207(a) would still apply, however, since it imposes a lifetime ban.\nThird, we assume that the contemplated communications might involve \xe2\x80\x9cmatter[s] in which [the\nattorney concerned] participated personally and substantially\xe2\x80\x9d while in the government. 18 U.S.C.\n\xc2\xa7 207(a)(1)(B). If this were not the case, section 207(a) would not apply. Sections 207(c) and 207(d)\nwould still apply, however, since their prohibitions are not so confined.\n\n123\n\n227-329 VOL_25_PROOF.pdf 133\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nCir. 1997) (describing attorneys employed by former Presidents in connection with\ntheir consultative roles under the PRA as having \xe2\x80\x9cserved solely in a representative\ncapacity\xe2\x80\x9d). The same is true for an attorney representing a former Vice President\nin such a capacity. Whether the attorney is thereby acting on behalf of the United\nStates or on behalf of \xe2\x80\x9cany other person\xe2\x80\x9d turns on whether, in the unique circumstances of the PRA, a former President or Vice President is viewed as retaining at\nleast some aspects of his official role rather than as occupying solely the position\nof a private person.\nAs this Office has previously explained, Congress\xe2\x80\x99s \xe2\x80\x9conly concern\xe2\x80\x9d in passing\nand amending section 207 \xe2\x80\x9cwas with preventing government employees from socalled \xe2\x80\x98revolving door\xe2\x80\x99 representation of private parties before the government.\xe2\x80\x9d\nLuttig Memorandum at 4 (citing S. Rep. No. 95-170, at 32 (1977)) (emphasis\nadded). We have found no evidence that Congress thought of former Presidents\nfulfilling their role under the PRA as \xe2\x80\x9cprivate parties.\xe2\x80\x9d On the contrary, \xe2\x80\x9cthe\nformer President in this context can hardly be viewed as an ordinary private\ncitizen.\xe2\x80\x9d Public Citizen, 111 F.3d at 170. Rather, the PRA assigns former Presidents a special, quasi-official role because, in certain circumstances, they may be\nuniquely situated to address the interests of the United States. Typically, those\ncircumstances involve questions of executive privilege. See id. (In the context of\nthe PRA, a former President \xe2\x80\x9cretains aspects of his former role\xe2\x80\x94most importantly . . . the authority to assert the executive privilege regarding Presidential\ncommunications.\xe2\x80\x9d). When the Archivist is called upon to determine whether\ncertain presidential records created during a former President\xe2\x80\x99s administration\nought to be released, considerations of executive privilege may inform that\ndetermination. And although the privilege belongs to the Presidency as an\ninstitution and not to any individual President, the person who served as President\nat the time the documents in question were created is often particularly well\nsituated to determine whether the documents are subject to a claim of executive\nprivilege and, if so, to recommend that the privilege be asserted and the documents\nwithheld from disclosure. Cf. id. at 171 (\xe2\x80\x9cThe former President clearly qualifies as\nan expert on the implications of disclosure of Presidential records from his\nadministration.\xe2\x80\x9d). In providing advice to the Archivist on such matters, a former\nPresident helps to support the institution of the Presidency and the constitutionally-based executive privilege.\nThe Supreme Court reached a similar conclusion in Nixon v. Administrator of\nGeneral Services, 433 U.S. 425 (1977). In that case, the Court addressed the issue\nwhether a former President may assert executive (sometimes styled \xe2\x80\x9cPresidential\xe2\x80\x9d)\nprivilege as to certain documents relating to his term as President and held by the\ncurrent administration. Because the current administration did not support the\nformer President\xe2\x80\x99s assertion of privilege, the Court recognized that the case\ninvolved an \xe2\x80\x9cassertion of a privilege against the very Executive Branch in whose\nname the privilege is invoked.\xe2\x80\x9d Id. at 447-48. The Court acknowledged that, to the\n\n124\n\n227-329 VOL_25_PROOF.pdf 134\n\n10/22/12 11:10 AM\n\n\x0cApplicability of Post-Employment Restrictions in 18 U.S.C. \xc2\xa7 207\n\nextent effective communication between a sitting President and his advisers might\nbe chilled by the disclosure of documents relating to a prior administration, an\nincumbent may decide to assert a privilege as to \xe2\x80\x9cconfidences of a predecessor\nwhen he believes that the effect [of disclosure] may be to discourage candid\npresentation of views by his contemporary advisers.\xe2\x80\x9d Id. at 448. Nevertheless, a\nsitting President is not the only one competent to assert the privilege:\nUnless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank\nsubmissions of facts and opinions upon which effective discharge of\nhis duties depends. The confidentiality necessary to this exchange\ncannot be measured by the few months or years between the submission of the information and the end of the President\xe2\x80\x99s tenure; the\nprivilege is not for the benefit of the President as an individual, but\nfor the benefit of the Republic. Therefore, the privilege survives the\nindividual President\xe2\x80\x99s tenure.\nId. at 448-49 (quoting, and adopting, Brief for the Solicitor General on Behalf of\nFederal Appellees). Thus, because protection of the executive privilege is \xe2\x80\x9cfor the\nbenefit of the Republic,\xe2\x80\x9d and because a former President is in a special position to\ndetermine the propriety of asserting that privilege regarding records produced\nduring his tenure, former Presidents are competent to assert the privilege as to\nsuch records. Indeed, in asserting this privilege, a former President speaks not only\nfor \xe2\x80\x9cthe benefit of the Republic\xe2\x80\x9d but also in the \xe2\x80\x9cname\xe2\x80\x9d of the Executive Branch.\nId. at 448. 6 Accordingly, an individual who represents a former President in this\ncontext is not engaged in the kind of representation of a purely private entity at\nwhich section 207\xe2\x80\x99s prohibitions are aimed.\nMoreover, prohibiting a former government official from representing a former\nPresident in connection with his consultative role under the PRA would not further\nthe underlying policy aims of section 207. The problems of undue influence and\ndivided loyalties that characterize most representational relationships prohibited\nby section 207 are absent in this context. Here, Congress has expressly defined a\nconsultative role for former Presidents. In faithfully advising and representing the\n\n6\nThat a former President and a current President may differ as to the propriety of disclosing certain\npresidential documents from the former President\xe2\x80\x99s administration does not alter this conclusion. In\nNixon itself, President Nixon\xe2\x80\x99s attempted assertion of executive privilege was not supported by either\nPresident Ford or President Carter. See 433 U.S. at 449. But that did not prevent the Court from\nconcluding that President Nixon was competent to assert the privilege as to certain documents from his\ntime in office. Moreover, it is not uncommon for different agencies or departments of the Executive\nBranch to take different public positions on certain legal questions, each one claiming to speak on\nbehalf of the United States. See generally Michael Herz, United States v. United States: When Can the\nFederal Government Sue Itself?, 32 Wm. & Mary L. Rev. 893 (1991).\n\n125\n\n227-329 VOL_25_PROOF.pdf 135\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nformer President as he fulfills that role, an attorney would simply be helping the\nPresident to effectuate a special role expressly approved by Congress.\nOur conclusion accords with practice. As NARA notes, former Presidents\nReagan and Bush have both been represented by former government officials in\nconnection with their consultative roles under the PRA. Stern Letter at 1. Although\nit appears that the representation in both cases was undertaken without any explicit\nconsideration of section 207\xe2\x80\x99s possible application, see id., this practice lends\nsome support to our conclusion that section 207 simply does not apply to representation provided to a past President in connection with his role under the PRA.\nWe reach the same conclusion with respect to the representation of former Vice\nPresidents. In directing that \xe2\x80\x9cVice-Presidential records shall be subject to the\nprovisions of [the PRA] in the same manner as Presidential records, \xe2\x80\x9c 44 U.S.C.\n\xc2\xa7 2207, the PRA establishes a consultative role for former Vice Presidents so that\nthey, like former Presidents, may identify the interests of the United States at stake\nin the record disclosure process. And while it is true that only a President or\nformer President is competent to assert executive privilege, a former Vice\nPresident may make recommendations to incumbent or former Presidents whether\nto assert the privilege in particular cases. We see no basis in the text or legislative\nhistory of the PRA for concluding that an individual representing a former Vice\nPresident in connection with the PRA should be subject to the strictures of section\n207 any more than if he were representing a former President.\nFinally, we note that to the extent it remains unclear whether section 207\xe2\x80\x99s\nprohibitions apply in this context, the rule of lenity requires that any remaining\nambiguity in the statute be construed so as to narrow, not broaden, the statute\xe2\x80\x99s\nprohibitions. That rule \xe2\x80\x9cdemand[s] resolution of ambiguities in criminal statutes in\nfavor of the defendant.\xe2\x80\x9d Hughey v. United States, 495 U.S. 411, 422 (1990); see\nLiparota v. United States, 471 U.S. 419, 427 (1985) (\xe2\x80\x9c[A]mbiguity concerning the\nambit of criminal statutes should be resolved in favor of lenity.\xe2\x80\x9d) (quoting Rewis v.\nUnited States, 401 U.S. 807, 812 (1971)); Luttig Memorandum at 5 (invoking the\nrule of lenity as one justification for a narrow reading of \xe2\x80\x9con behalf of\xe2\x80\x9d as used in\nsection 207).\nDANIEL L. KOFFSKY\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n126\n\n227-329 VOL_25_PROOF.pdf 136\n\n10/22/12 11:10 AM\n\n\x0c'


b'The Effect of an Appropriations Rider on the Authority of the\nJustice Department to File a Supreme Court Amicus Brief\nA rid er in the 1990 appropriations legislation for the Justice D epartm ent, the F ederal C o m m u \xc2\xad\nnications C om m ission, and other agencies that provides that no funds appropriated by th at\nlegislation m ay be used to repeal, m odify, or reexam ine certain F C C policies does not forb id\nthe Ju stice D epartm ent from filing a Suprem e C ourt am icus b rie f in a case in w hich those\npolicies are at issue.\n\nFebrary 5, 1990\nMe m\n\norandum\n\nO p in io n\n\nfor the\n\nAc t i n g S o l i c i t o r G e n e r a l\n\nThis responds to your request for our opinion on whether a rider in the\nDepartments o f Commerce, Justice, and State, the Judiciary, and Related\nAgencies Appropriations Act, 1990 (\xe2\x80\x9c 1990 Appropriations Act\xe2\x80\x9d), Pub. L.\nNo. 101-162, 103 Stat. 988 (1989) forbids the Department of Justice from\nfiling an amicus brief with the Supreme Court in Metro BroadcastingInc. v.\nFCC, No. 89-453, and Astroline Communications Co. v. Shurberg Broad\xc2\xad\ncasting, No. 89-700.1 For the reasons discussed below, we agree with your\nconclusion that the rider does not forbid such a filing.\n\nI. Background\nThe 1990 Appropriations Act provides funding for several federal govern\xc2\xad\nment entities, including the Department of Justice (title II), the Judiciary\n(title IV), and a variety of agencies, among them the Federal Communica\xc2\xad\ntions Commission (title V). A rider appears in the provision of title V\nmaking appropriations for the Federal Communications Commission (\xe2\x80\x9cFCC\xe2\x80\x9d),\nwhich is also found in materially the same language in the two prior annual\nappropriations acts.2 It reads:\n\n\'S e e M em orandum for William P. Barr. Assistant Attorney General, Office of Legal Counsel, from\nJohn G. Roberts, Jr., Acting Solicitor General, Re: Use o f Departmental Appropriations to File Briefs\nAmicus Curiae in Metro Broadcasting, Inc. v. FCC, No. 89-453 and Astroline Comm. Co. v. Shurberg\nBroadcasting, No. 89-700 (Jan. 11, 1990) (\xe2\x80\x9cRoberts Memorandum\xe2\x80\x9d).\n2 The original provision from which the current rider is derived appears in Pub. L. No. 100-202, 101\nStat. 1329-1, 1329-31 (1987). See also Pub. L. No. 100-459, 102 Stat. 2186, 2216-17 (1988).\n\n13\n\n\x0c[N]one of the funds appropriated by this Act shall be used to\nrepeal, to retroactively apply changes in, or to continue a re\xc2\xad\nexamination of, the policies of the Federal Communications\nCommission with respect to comparative licensing, distress\nsales and tax certificates granted under 26 U.S.C. 1071, to\nexpand minority and women ownership of broadcasting licenses\n. . . other than to close MM Docket No. 86-484 . . . .\n103 Stat. at 1020.\nNo such rider appears in title II, which appropriates funds for the Justice\nDepartment, not even in the \xe2\x80\x9cGeneral Provisions\xe2\x80\x9d of that title. 103 Stat. at\n995-1006.3 Nor does any such rider appear in title IV, which appropriates\nm onies for the federal courts, including the Supreme Court. Id. at 1010-16.\nFinally, no such rider appears in title VI (\xe2\x80\x9cGeneral Provisions\xe2\x80\x9d), which sets\nforth general restrictions on the use of the funds appropriated under all of\nthe preceding titles of the Act. Id. at 1031-40.\nThe questions of the FCC rider\xe2\x80\x99s possible application to a Justice Depart\xc2\xad\nm ent amicus filing initially arose in August 1988, when the Civil Rights\nDivision sought permission to file an amicus brief with the Court of Appeals\nfor the District of Columbia Circuit in what is now the Metro Broadcasting\ncase.4 Both the Civil Rights Division and the Solicitor General concluded,\nas do we here, that the rider does not prohibit amicus filings by the Depart\xc2\xad\nment. The Solicitor General authorized Civil Rights to file an informational\namicus brief with the court of appeals,5 and such a brief was in fact filed.6\n\nII. AmaEysns\nThe FCC rider prohibits the use of \xe2\x80\x9cfunds appropriated by this Act . . . to\nrepeal, to retroactively apply changes in, or to continue a reexamination of,\nthe [specified] policies of the Federal Communications Commission.\xe2\x80\x9d 103\nStat. at 1021. It is clear from the language and purpose of the rider, and\nfrom the overall structure of the 1990 Appropriations Act, that the rider was\n3The \xe2\x80\x9cG eneral Provisions" o f title II do otherwise impose restrictions on the use of Justice Department\nfunds. See 1990 Appropriations Act \xc2\xa7\xc2\xa7 205-206, 103 Stat. at 1005 (restrictions on abortion-related use\no f funds).\n4 See M em orandum for the Solicitor General, from W illiam Bradford Reynolds, Assistant Attorney\nG eneral, Civil Divison, Re: Steele v. FCC and Winter Park Communications, Inc. v. FCC. Nos. 84-1176\n& 85-1755 (D.C. Cir.) (July 22, 1988) (rider did not prohibit amicus filing in court of appeals); hand\xc2\xad\nwritten com m ents o f the Solicitor General on M emorandum for the Solicitor General, from Thomas W.\nM errill, D eputy Solicitor General, Re: Steele v. FCC (Aug. 3, 1988) (rider did not prohibit filing of an\n\xe2\x80\x9cinform ational" am icus brief).\n5 In his handw ritten marginal comments authorizing a filing, the Solicitor General wrote that \xe2\x80\x9c [t]he\nargum ent relating to the appropriations rider is troublesome but I think Civil Rights has the better of it."\nHe further observed that a purely \xe2\x80\x9cinformational\xe2\x80\x9d filing would not \xe2\x80\x9ccome within ten miles of the appro\xc2\xad\npriation rid er\xe2\x80\x99s prohibition (even on its m ost expansive interpretation).\xe2\x80\x9d\n6See B rie f fo r the U nited States as Am icus Curiae. Winter Park Comm., Inc. v. FCC & Metro Broad\xc2\xad\ncasting, Inc. v FCC. D.C. Cir. Nos. 85-1755 & 85-1756 (Aug. 29, 1988).\n\n14\n\n\x0cintended to impose restrictions only on the FCC, and thus does not forbid the\nfiling o f an amicus (or any other) brief by the Department of Justice. Even if\nthis conclusion were less than clear, we would resolve any ambiguity in favor\no f this construction to avoid the very serious constitutional problems that\nwould exist were the rider interpreted to prevent the Department from filing\nin the Court.\nThe 1990 Appropriations Act is essentially an omnibus enactment com\xc2\xad\nprising a number of separate and unrelated appropriations \xe2\x80\x9cActs\xe2\x80\x9d (titles I-V),\nand a number of general provisions that apply to all titles of the Act (title\nVI). Each of titles I-IV is expressly designated an \xe2\x80\x9cAct.\xe2\x80\x9d Id. at 995, 1006,\n1010, 1016. For example, title II, which appropriates funds for the Justice\nDepartment, provides that title II \xe2\x80\x9cmay be cited as the \'Department of Jus\xc2\xad\ntice Appropriations Act, 1990.\xe2\x80\x9d \xe2\x80\x99 Id. at 1006.7 With the exception of title VI,\nwhich for understandable reasons Congress might not separately designate an\n\xe2\x80\x9cAct,\xe2\x80\x9d title V is the only title that is not expressly designated an Act. Be\xc2\xad\ncause it is not designated an \xe2\x80\x9cAct \xe2\x80\x9d there is some question as to whether the\nterm \xe2\x80\x9cthis Act\xe2\x80\x9d in title V was intended to refer only to title V or to the entire\n1990 Appropriations Act.\nWe believe that title V also should be considered a separate act for the\npurpose of construing the provisions within that title, which appears to be\nthe only purpose for Congress\xe2\x80\x99 separate designation of titles I-IV as \xe2\x80\x9cActs.\xe2\x80\x9d\nWe can think of no substantive reason why Congress would have wanted\ntitle V treated any differently in this respect from titles I-IV. Indeed, it\nappears that the only reason title V may not have been designated an \xe2\x80\x9cAct\xe2\x80\x9d\nis that, unlike titles I-IV, it appropriates monies to a number of different\nfederal government entities8 and, as a consequence, would not have been\neasily entitled. It follows from the fact that title V was intended to be\nunderstood as a separate \xe2\x80\x9cAct\xe2\x80\x9d for the same purposes that titles I-IV are to\nbe so understood that the term \xe2\x80\x9cthis Act\xe2\x80\x9d in the title refers only to title V,\nnot to the entire 1990 Appropriations Act.9 Accordingly, we conclude that\nthe expenditure restriction in the rider applies only to the FCC appropria\xc2\xad\ntions made in title V.10\nInterpreting the rider as applicable only to the FCC is the interpretation\n\n\xe2\x80\x99 The Act provides that title I \xe2\x80\x9cmay be cited as the \'Departm ent of Commerce Appropriations Act,\n1990"\', see 103 Stat. at 995; that title III \xe2\x80\x9cmay be cited as the \'Departm ent o f State Appropriations Act,\n1990\',\xe2\x80\x9d id. at 1010; and that title IV \xe2\x80\x9cmay be cited as "The Judiciary Appropriations Act, 1990\',\xe2\x80\x9d id. at\n1016.\n\xe2\x80\xa2Each o f titles I-IV appropriates monies for a single agency or, in the case o f title IV, an entire branch\no f government (the federal judiciary).\n\xe2\x80\x99 This interpretation of the term is consistent with the other uses o f the term in title V. See 103 Stat. at\n1018 (Commission on the Bicentennial of the United States Constitution); id. at 1022 (Securities and\nExchange Commission); id. at 1023 (Small Business Administration); id. at 1024 (same); id. at 1028\n(same).\n10The restriction would apply to, although presumably have no practical effect on, the other agencies\nfor which appropriations are made in title V.\n\n15\n\n\x0cmost consistent with the rider\xe2\x80\x99s character as a proviso. Sums are appropri\xc2\xad\nated \xe2\x80\x9c[f]or necessary expenses of the Federal Communications Commission\n. . . Provided!\xe2\x80\x9d that the rider\xe2\x80\x99s terms are observed. 103 Stat. at 1020. While\nit would be possible to read the provision as conditioning the FCC appro\xc2\xad\npriations on Commerce, Justice, State and other agency compliance with the\nterms o f the rider, clearly the most natural reading of the proviso is as a\ncondition only on the immediately preceding appropriation to the FCC. It\nwould be odd indeed for Congress to condition one agency\xe2\x80\x99s appropriations\non compliance by other agencies with enacted prohibitions. This is espe\xc2\xad\ncially the case where, as here, the other agencies have no apparent authority\nto engage in the prohibited activities.\nThe legislative history confirms that Congress intended the rider to apply\nonly to the FCC. The Senate Report on the bill that first included the rider\nexplains the purpose of the rider as follows:\nThe Committee has inserted a provision in the bill which\nbars the Federal Communications Commission from expend\xc2\xad\ning funds to repeal, retroactively restrict, or continue a pending\nreexamination of, longstanding rules to promote the owner\xc2\xad\nship o f broadcasting licenses by minority group members and\nwomen. The FCC has commenced an inquiry, In the Matter\nof Reexamination of the Commission\xe2\x80\x99s Comparative Licens\xc2\xad\ning, Distress Sales and Tax Certificate Policies Premised on\nRacial, Ethnic or Gender Classifications, MM Docket No. 86484, which calls into question the advisability and legality of\nthese rules.\nThe Committee believes the inquiry is unwarranted . . . .\nS. Rep. No. 182, 100th Cong., 1st Sess. 76 (1987) (emphasis added) (\xe2\x80\x9cSen\xc2\xad\nate Report\xe2\x80\x9d). The report continues with instructions to the FCC to close\nMM Docket No. 86-484, and to resolve within sixty days certain proceed\xc2\xad\nings that had been either remanded by the District of Columbia Circuit\nCourt o f Appeals \xe2\x80\x94 including the Shurberg case \xe2\x80\x94 or held in abeyance\npending the outcome of the FC C \xe2\x80\x99s rulemaking, \xe2\x80\x9cin a manner consistent with\nthe policies that mandated incentives for minorities and women in broadcast\nownership.\xe2\x80\x9d Id. at 77.\nThese passages make clear that the purpose of the rider was to prevent\nthe FCC from using its appropriated funds to continue the then-pending\nFCC administrative proceeding reexamining the minority and gender prefer\xc2\xad\nence policies11 or, at most, to prevent the FCC from conducting any such\nreexamination in the future. The rider even identifies by docket number\n11 The FC C \xe2\x80\x99s rulem aking followed a request by the FCC to the D.C. Circuit \xe2\x80\x94 before which a constitu\xc2\xad\ntional challenge to the F C C \xe2\x80\x99s comparative licensing gender preference policy was pending \xe2\x80\x94 to permit\nthe agency to reexam ine its preferences. See Race and Gender Preferences, 1 F.C.C. Red 1315 (1986)\nContinued\n\n16\n\n\x0c(MM Docket No. 86-484) and, almost verbatim, the title of the specific FCC\nrulemaking (or \xe2\x80\x9creexamination\xe2\x80\x9d) with which it was concerned.12\nThe structure of the 1990 Appropriations Act also supports the conclusion\nthat Congress did not intend the rider as a restriction on the use o f all funds\nappropriated in the 1990 Appropriations Act. If Congress intended to apply\nthe rider\xe2\x80\x99s restrictions to all of the federal entities, presumably it would have\ninserted language of restriction in the respective titles\xe2\x80\x94 each of which in\xc2\xad\ncludes other restraints on the use of the appropriated monies\xe2\x80\x94or, more likely,\nin title VI, a catch-all section that includes provisions limiting the use of\nfunds appropriated in any of the earlier titles. Neither titles I-IV nor title VI\ncontains any restriction substantively similar to that in the rider.\nEven assuming that the rider extends to the funds appropriated to the\nDepartment of Justice, we do not believe that filing an amicus brief would\nbe prohibited. The rider only prohibits the expenditure of funds \xe2\x80\x9cto repeal,\nto retroactively apply changes in, or to continue a reexamination o f \xe2\x80\x99 the\nspecified FCC policies. The Department of Justice does not even have the\npower to \xe2\x80\x9crepeal\xe2\x80\x9d or to \xe2\x80\x9capply changes in\xe2\x80\x9d an FCC policy. That administra\xc2\xad\ntive power rests in the FCC and, through legislation, Congress.\nNor, we think, can the filing of an amicus (or any other) brief be regarded\nas \xe2\x80\x9ccontinufing] a reexamination\xe2\x80\x9d of the FCC policies at issue.13 First, read\nin the context of the immediately preceding proscriptions on \xe2\x80\x9crepeal\xe2\x80\x9d and\n\xe2\x80\x9cchanges in\xe2\x80\x9d the FCC policies, the term \xe2\x80\x9ccontinu[ing] a reexamination\xe2\x80\x9d is\n\n" (...continued)\n(MM Docket No: 86-484), modified, 2 F.C.C. Red 2377 (1987). The FCC had sought this reexam ination\nin part because o f its opinion at that time that both the racial and the gender preferences were unconstitu\xc2\xad\ntional. See B rief f o r the Federal Communications Commission on Rehearing En Banc in Steele v. FCC,\nD.C. Cir. No. 84-1176. The FCC was engaged in preparing findings in the rulemaking when Congress\ndecided to abort the proceedings. In obedience to Congress\xe2\x80\x99 directive, the FCC closed the rulemaking\nand reinstituted the preferences on January 14, 1988. See FCC 88-17.\n"T h ere is no suggestion in either the text or legislative history o f the subsequently-enacted riders that\nCongress\xe2\x80\x99 purposes for including the rider in the FCC appropriation has changed since the rider was\nfirst enacted in 1987. See S. Rep. No. 144, 101st Cong., 1st Sess. 86 (1989) (Committee \xe2\x80\x9crecom mends\nretention\xe2\x80\x9d of provisos enacted previously); S. Rep. No. 388, 100th Cong., 2d Sess. 79 (1988) (Com m it\xc2\xad\ntee has "continued language from previous appropriations acts with regard to . . . minority and women\now nership o f broadcasting licenses\xe2\x80\x9d).\n13 Arguably, no expenditure made after closure of the rulemaking proceeding in MM Docket No. 86484 by any o f the federal entities for which appropriations were made in the 1990 Appropriation Act\ncould run afoul o f this portion of the rider\xe2\x80\x99s prohibition. The rider could fairly be interpreted to prohibit\nonly the expenditure of funds to continue the particular \xe2\x80\x9creexamination\xe2\x80\x9d o f the FCC policies then in\nprogress in MM Docket No. 86-484, which was closed on January 14, 1988. See, e.g., S. Rep. No. 182\nat 76 (rider inserted to prohibit expenditures to \xe2\x80\x9ccontinue a pending reexamination" of the FCC policies\n(em phasis added)). If the rider were so interpreted, it would not prohibit a new \xe2\x80\x9creexamination\xe2\x80\x9d o f the\npolicies.\nCongress clearly understood and appreciated the difference between beginning a reexam ination and\ncontinuing a reexam ination of a particular matter, as evidenced by its prohibition in the same appro\xc2\xad\npriations act o f expenditures \xe2\x80\x9cto repeal, to retroactively apply changes, or to begin or continue a reex\xc2\xad\namination of the rules and policies established to administer such rules o f the Federal Com m unications\nCommission as set forth at section 73.3555(c) of title 47 of the Code of Federal Regulations.\xe2\x80\x9d See 103\nStat at 1021 (em phasis added).\n\n17\n\n\x0cbest understood to refer only to administrative reexamination of the poli\xc2\xad\ncies.14 A court does not examine policies qua policies; it reviews the legality\no f the policies. Thus, while the prohibition might prevent commencement\no f a new administrative inquiry into the wisdom (or even the legality) of the\nagency\xe2\x80\x99s racial and gender preference policies, we do not believe it would stand\nas a bar to a legal challenge to those policies before the courts of law.15\nSecond, even if the rider were interpreted to extend to challenges in a\njudicial forum, we do not believe that the filing of a brief once the Court has\ndecided to hear a challenge entails the use of funds \xe2\x80\x9cto continue a reexami\xc2\xad\nnation\xe2\x80\x9d o f the FCC policies. The Court perhaps expended funds to continue\nthe reexamination by docketing the cases, and will continue to do so by\nretaining the case on its docket for briefing, argument and disposition. With\ncertiorari granted, however, the Department would only be expending funds\nto participate in a \xe2\x80\x9creexamination\xe2\x80\x9d that has already been continued; it would\nnot be expending funds \xe2\x80\x9cto\xe2\x80\x9d continue a reexamination. The reexamination,\nif that it be, see discussion infra, is underway and will continue, whether or\nnot the Department participates. The Department fully complied with the\nterms o f the prohibition (assuming that it applies) by opposing the grant of\ncertiorari.\nFinally, the Supreme Court\xe2\x80\x99s review of these cases would not properly be\nconsidered a \xe2\x80\x9creexamination\xe2\x80\x9d of the FCC policies because the Court has\nnever previously examined these policies. One could argue that any second\nand successive examination constitutes a \xe2\x80\x9creexamination\xe2\x80\x9d because the FCC\nhas already once examined them. We believe, however, that the better read\xc2\xad\ning of the rider (regardless to whom it applies) is as a prohibition on a\nsecond and successive examination by the same entity. This especially would\nseem to be the better interpretation, given that the prohibition is against\n\xe2\x80\x9ccontinuing\xe2\x80\x9d a reexamination, not merely reexamining, the specified poli\xc2\xad\ncies. One does not ordinarily think of a second body \xe2\x80\x9ccontinuing\xe2\x80\x9d a\nreexamination begun by another body. O f course, this interpretation finds\nsubstantial support in the legislative history. See discussion supra at 16.\nFor the aforementioned reasons, we believe it is clear that Congress did\nnot intend the rider to serve as a limitation on Department of Justice expen\xc2\xad\nditures. Even if Congress\xe2\x80\x99 intent were less than clear, however, we would\n14 In the Senate Report accompanying the first appropriations bill to which the rider was attached, the\nC om m ittee instructed the FCC to resolve certain pending cases in a manner consistent with the FCC\xe2\x80\x99s\nracial and gender preference policies. S. Rep. No. 182 at 77. The Com m ittee\xe2\x80\x99s instruction identifies\nthe cases to w hich it refers as ones w hich had been either remanded to the FCC by the District of\nC olum bia C ircuit Court o f Appeals, o r held in abeyance by the FCC pending reexam ination of its\npolicies. T he Com m ittee thus merely instructed the FCC to apply the racial and gender preference\npolicies in adm inistrative adjudication, which is consistent with our view that the rider was directed\nonly at adm inistrative actions that might lead to reversal of the specified FCC policies.\n13 Indeed, if the prohibited \xe2\x80\x9creexamination\xe2\x80\x9d of FCC\'s policies bars a Justice Department legal challenge\nto those policies, it would also preclude judicial review o f those policies, since the federal judiciary is\nfunded by title IV o f the Act, and would be subject to the same restrictions in the rider. Apart from the\nserious constitutional issue that would be presented by a provision purporting to prevent constitutional\nchallenges to a law, see, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988), it would be extraordinary to\nconstrue a provision to prevent judicial review sub silentio.\n\n18\n\n\x0cinterpret the rider to permit an amicus filing so as to avoid the serious consti\xc2\xad\ntutional problems, see NLRB v. Catholic Bishop, 440 U.S. 490 (1979), that\nwould otherwise exist. A statute that purported to prohibit the Executive from\nfiling an amicus or other brief on the constitutionality of federal agency action or\npolicy would raise the most serious constitutional concerns.16\nThe President is constitutionally required to take care that the laws, in\xc2\xad\ncluding the Constitution, be faithfully executed. See U.S. Const, art. II, \xc2\xa7 3.\nBefore entering office, the Constitution requires that he \xe2\x80\x9csolemnly swear\xe2\x80\x9d\nthat he will \xe2\x80\x9cto the best of [his] Ability, preserve, protect and defend the\nConstitution of the United States.\xe2\x80\x9d Id. art. II, \xc2\xa7 1, cl. 8. The filing of briefs\nin courts of law through his subordinates\xe2\x80\x94particularly as such filings may\nbear on the legality of action taken by Executive departments or agencies\xe2\x80\x94\nis integral to the discharge of his constitutional duty to see that the laws are\nfaithfully executed. As a consequence, while the question never has been\nand may never be litigated, it is doubtful that Congress, through exercise of\nits appropriations power or otherwise, could ever prevent the Executive from\nadvancing before the courts a particular view of the constitutionality o f an\nExecutive agency action or policy.\nC O N C L U SIO N\nFor the foregoing reasons, we conclude that the 1990 Appropriations Act\ndoes not bar the Department of Justice from filing an amicus brief with the\nSupreme Court in the Metro Broadcasting litigation.\nJ. MICHAEL LUTTIG\nPrincipal Deputy\nAssistant Attorney General\nOffice o f Legal Counsel\n\n\'\xe2\x80\x98 Interpreting the rider so that it would extend to the Department of Justice would result in its applica\xc2\xad\ntion to the judiciary, as well. Application of the rider to prohibit the judiciary from expending any o f its\nappropriated funds "to continue a reexamination\xe2\x80\x9d of the FCC policies would raise separate, but equally\nserious, constitutional questions.\n\n19\n\n\x0c'