b'April 11, 1977\n\n77-20\n\nMEMORANDUM OPINION FOR THE\nCOMMISSIONER OF IMMIGRATION AND\nNATURALIZATION\nSection 212(a)(27) of the Immigration and\nNationality Act\xe2\x80\x94Exclusion of Certain Aliens\xe2\x80\x94\nRhodesia\n\nThis is in response to your request for our opinion concerning the\nscope of Section 212(a)(27) of the Immigration and Nationality Act, 8\nU.S.C. \xc2\xa7 1182(a)(27). That provision makes ineligible for visas and ex\xc2\xad\ncludes from admission into the United States:\nAliens who the consular officer or the Attorney General knows or\nhas reason to believe seek to enter the United States solely, princi\xc2\xad\npally, or incidentally to engage in activities which would be preju\xc2\xad\ndicial to the public interest, or endanger the welfare, safety, or\nsecurity of the United States.\nIn the fall of 1975, six Southern Rhodesian aliens sought to enter the\nUnited States to attend a conference o f the International Federation of\nAgricultural Producers in Washington, D.C. The six apparently would\nhave been traveling on British passports. The Department of State\nidentified the six aliens as officials of the National Farmers\xe2\x80\x99 Union of\nSouthern Rhodesia, an organization o f private farmers that seeks to\npromote export sales of agricultural commodities grown in Southern\nRhodesia and cooperates closely with the existing government of that\ncountry. The Department o f State determined that, in attending the\nmeeting of the International Federation of Agricultural Producers, the\naliens would have sought to promote the foreign sale of agricultural\ncommodities grown in Southern Rhodesia. We understand that the six\nRhodesian aliens were excluded from the United States under Section\n212(a)(27) on the basis of the State Departm ent\xe2\x80\x99s determination.\nThe legal validity of the exclusion was subsequently questioned by a\nMember o f Congress, who took the position that Section 212(a)(27)\napplies only to subversives. Because of renewed interest in the scope of\nSection 212(a)(27) and the continuing existence of United Nations sanc64\n\n\x0ctions against Southern Rhodesia, we believe it is useful to convey our\nopinion on the subject at this time and to do so with some reference to\nthe Rhodesian situation.\nIt is our opinion that potentially serious adverse foreign policy conse\xc2\xad\nquences may properly be taken into account in determining whether an\nalien is ineligible for a visa and hence inadmissible into the United\nStates. We therefore agree that given the findings of the Department of\nState, the aliens who sought to attend the conference in 1975 were\ninadmissible under Section 212(a)(27). We also are of the opinion that\notherwise innocuous activities in the United States may give rise to\ninadmissibility under that provision in certain circumstances.\nI\nAs we understand the policies and practices of the National Farmers\xe2\x80\x99\nUnion, the entry of officials of that organization into the United States\nto attend the conference and their activities at the conference would\nhave violated sections 3(b) and 5(b) of the United Nations Security\nCouncil Resolution 253 of May 29, 1968. Section 3(b) thereof provides\nthat Member States \xe2\x80\x9cshall prevent . . . [a]ny activities by their nation\xc2\xad\nals or in their territories which would promote or are calculated to\npromote the export of any commodities or products from Southern\nRhodesia . . . .\xe2\x80\x9d Section 5(b) directs Member States to \xe2\x80\x9c [t]ake all\npossible measures to prevent the entry into their territories of persons\nwhom they have reason to believe to be ordinarily resident in Southern\nRhodesia and whom they have reason to believe to have furthered or\nencouraged, or to be likely to further or encourage, the unlawful\nactions of the illegal regime in Southern Rhodesia . . . . \xe2\x80\x9d 1\nCongress has authorized the President to issue orders, rules, and\nregulations to provide for the domestic enforcement of United Nations\nsanctions, and has established criminal penalties for persons subject to\nthe jurisdiction of the United States who violate such orders, rules, and\nregulations. See 22 U.S.C. \xc2\xa7 287c. Section 1(b) of Executive Order No.\n11419, 3 C FR 737 (1966-1970 Compilation), which was issued to imple\xc2\xad\nment Security Council Resolution 253, prohibits any person subject to\nthe jurisdiction of the United States from engaging in activities that\nwould promote the export of any commodities or products originating\nin Southern Rhodesia. Thus, the representatives of the National Farm \xc2\xad\ners\xe2\x80\x99 Union would have committed a criminal offense if, as the D epart\xc2\xad\n1 Section 5(a) o f Resolution 253 directs all M em ber States to prevent the entry into\ntheir territories, save on exceptional hum anitarian grounds, o f any person traveling on a\nSouthern R hodesian passport. Section 5(a) is not im plicated in the present situation\nbecause the R hodesian nationals w ere traveling on British passports. W e have been\ninform ed that it has been the policy o f the D epartm ent o f State from the beginning that\nthe regim e does not constitute \xe2\x80\x9ccom petent a u thority" for the issuance o f passports w ithin\nthe m eaning o f \xc2\xa7 101(a)(30) o f the Im m igration and N ationality Act, and that travel\ndocum ents issued by the regime therefore do not m eet the requirem ents for en try\ncontained in \xc2\xa7 101(a)(26). A s a result, there is no need to rely on \xc2\xa7 212(a)(27) in excluding\naliens traveling on Rhodesian passports.\n\n65\n\n\x0cment of State predicted, they had sought to promote the export of\nRhodesian agricultural products while they were attending the confer\xc2\xad\nence. It would seem that activities that are prohibited by a Security\nCouncil Resolution, an Executive order issued to conform this Nation\xe2\x80\x99s\nforeign policy to that Resolution, and a criminal statute designed to\nenforce such Executive orders, must surely be regarded as \xe2\x80\x9cactivities\nwhich would be prejudicial to the public interest, or endanger the\nwelfare, safety, or security o f the United States\xe2\x80\x9d within the meaning of\nSection 212(a)(27). But we do not believe that the Resolution, the\nExecutive order, and the attendant criminal sanctions are essential to\nour conclusion that the Rhodesian nationals were properly excluded\nunder Section 212(a)(27).\nExecutive O rder No. 11419 does not speak directly to the require\xc2\xad\nment in Security Council Resolution 253 that Member States prevent\nthe entry of Rhodesian residents who there is reason to believe have\nfurthered or encouraged o r would be likely to further or encourage\n\xe2\x80\x9c the unlawful actions\xe2\x80\x9d of the present regime in Southern Rhodesia.\nThis omission from the Executive order was deliberate. The Depart\xc2\xad\nm ent of State and this Department took the position that no additional\nauthorization was needed in order to implement this aspect of the\nSecurity Council Resolution because the Rhodesian aliens in question\nw ould be excluded from entry under the Immigration and Nationality\nAct. A memorandum prepared by this Office in 1968 and forwarded to\nthe W hite House with the proposed order stated:\nCertain other requirements of the Security Council Resolution\nhave been omitted from the proposed order on the basis that they\ncan be put into effect on the part of the United States by the\nresponsible agencies under existing authority. Thus, the require\xc2\xad\nments to exclude from M ember States persons traveling on Rhode\xc2\xad\nsian passports[2] and to \xe2\x80\x9ctake all possible measures\xe2\x80\x9d to exclude\ncertain persons ordinarily residing in Southern Rhodesia are to be\nimplemented by the Departm ents of State and Justice in accord\xc2\xad\nance with the Immigration and Nationality Act.\nT he letter of transmittal from the Justice Department\xe2\x80\x99s Office of Legal\nCounsel to the President w as to the same effect.3 Therefore, this D e\xc2\xad\npartment, the Department o f State, and the President fully expected\nthat the Immigration and Nationality A ct would, of its own force,\nprevent the entry of Rhodesian aliens who might engage in activities in\nthis country that would further and encourage the unlawful actions of\nthe regime in Southern Rhodesia and thereby adversely affect the\n3 See footnote 1.\n3 T h e function o f reviewing E xecutive orders as to form and legality has been delegat\xc2\xad\ned by the A tto rn ey G eneral to the O ffice o f L egal Counsel. 28 C F R \xc2\xa7 0.25(b).\n\n66\n\n\x0cNation\xe2\x80\x99s foreign relations.4 Section 212(a)(27) was not specifically men\xc2\xad\ntioned in the various letters and memorandums written in 1968, but its\ngrounds for exclusion are the only ones contained in Section 212(a)(27)\nthat could have been thought to be applicable to the Rhodesian situa\xc2\xad\ntion.\nThe conclusion reached by the Administration in 1968 finds support\nin the text of Section 212(a)(27), its legislative history, and administra\xc2\xad\ntive interpretation. Its language is clearly not limited in its application\nto aliens posing a threat to internal security, as has been suggested.\nActivities by aliens that could have potentially serious adverse effects\non the Nation\xe2\x80\x99s foreign policy can quite reasonably be characterized\neither as \xe2\x80\x9cprejudicial to the public interest\xe2\x80\x9d or likely to \xe2\x80\x9cendanger\nthe . . . security of the United States\xe2\x80\x9d within the meaning of the\nprovision.5\nIt is true that the elements of legislative history relating directly to\nthe passage of the Immigration and Nationality Act in 1952 can be read\nas limiting application of Section 212(a)(27) to internal security cases.\nFor example, the House and Senate reports describe the provision in\nidentical language, indicating that it and subparagraphs (28) and (29)\nmerely \xe2\x80\x9cincorporate the provisions of Section 1 of the Act o f October\n16, 1918, as amended by Section 22 of the Subversive Activities Con\xc2\xad\ntrol Act of 1950, 64 Stat. 987, relating to the exclusion of subversives.\xe2\x80\x9d\nS. Rep. No. 1137, 82d Cong., 2d Sess. 10 (1952); H. Rep. No. 1365, 82d\nCong., 2d Sess. 49 (1952). However, because the language o f Section\n212(a)(27) was taken almost verbatim\' from \xc2\xa722 of the Subversive\nActivities Control Act of 1950, 64 Stat. 987, 1006,6 it is necessary to\nconsult as well the legislative history of that earlier Act, which clearly\nsustains the current position of the Service and the State Department.\nWhile Congress\xe2\x80\x99 immediate focus in creating additional categories of\nexcludable aliens in 1950 was also directed to persons who could be\ncharacterized as \xe2\x80\x9csubversives,\xe2\x80\x9d see, e.g\xe2\x80\x9e S. Rep. No. 2230, 81st Cong.,\n\n4 It w ould seem from the account in the text that in 1968 the A dm inistration was also\no f the view that \xc2\xa7 212(a)(27) w ould operate to bar the admission o f aliens w h o had in the\npast furthered o r encouraged the actions o f the illegal regim e in Southern Rhodesia,\nregardless o f the nature o f the specific activities in w hich they proposed to engage w hile\nin the country. W e believe that there is considerable support for this view, see Part II,\ninfra, but there w as no need to rely upon it in excluding the aliens in view o f the specific\nactivities in w hich they intended to engage after entering the country.\n5 T he term \xe2\x80\x9cnational security\xe2\x80\x9d is often used to include considerations of b oth national\ndefense and foreign policy. See, e.g., E xecutive O rder N o. 11652, \xc2\xa7 1, 3 C F R \xc2\xa7\xc2\xa7678, 679\n(1971-1975 Com pilation). T he phrase \xe2\x80\x9csecurity of the United States\xe2\x80\x9d may be construed in\na similar fashion.\n\xe2\x80\xa2 T he only difference betw een the tw o provisions is that the relevant portion o f \xc2\xa7 22 o f\nthe 1950 A ct did not contain the reference in Section 212(a)(27) to the \xe2\x80\x9csecurity\xe2\x80\x9d o f the\nUnited States.\n\n67\n\n\x0c2d Sess. 16-28 (1950),7 \xc2\xa722 o f the Subversive Activities Control Act of\n1950 as passed swept much m ore broadly. Congress\xe2\x80\x99 choice of language\nis instructive, particularly its use of the phrase \xe2\x80\x9cprejudicial to the public\ninterest.\xe2\x80\x9d That phrase had a well-settled administrative interpretation in\n1950. Under the Act of May 22, 1918, 40 Stat. 559, as amended by the\nA ct of June 21, 1941, 55 Stat. 252, the President was authorized to\nimpose additional restrictions on the entry of persons into the United\nStates during times of war or national emergency. In Proclamation\n2523, 3 C FR 270 (1938-1943 Compilation), issued November 14, 1941,\nthe President found such additional restrictions to be necessary and\ndeclared that an alien would not be permitted to enter if his entry\nwould be \xe2\x80\x9cprejudicial to the interests o f the United States,\xe2\x80\x9d as provided\nin regulations to be promulgated by the Secretary of State in consulta\xc2\xad\ntion with the Attorney General. Under the regulations that were pro\xc2\xad\nmulgated, no entry permit could be issued to any alien \xe2\x80\x9cif the permitissuing authority [had] reason to believe that the entry of the alien\nwould be prejudicial to the interests of the United States.\xe2\x80\x9d 8 CFR\n\xc2\xa7 175.52(a) (1949 ed.) See, generally, K nauff v. Shaughnessy, 338 U.S.\n537, 540-41 (1950); Shaughnessy v. Mezei, 345 U.S. 206, 210-11, and n. 7\n(1953). The 1949 Aliens and Nationality regulations then listed 11\ncategories of inadmissible aliens, one of which categories is highly\nrelevant here:\n\xc2\xa7 175.53 Classes of aliens whose entry is deemed to be prejudicial to\nthe public interest. The entry of an alien w ho is within one of the\nfollowing categories shall be deemed to be prejudicial to the inter\xc2\xad\nests of the United States . . .\n0\n\n$\n\n$\n\n*\n\n$\n\n$\n\n$\n\n(b) Any alien who is a member of, affiliated with, or may be\nactive in the United States in connection with or on behalf of, a\npolitical organization associated with or carrying out policies of\nany foreign government opposed to the measures adopted by the\nGovernment of the United States in the public interest, or in the\ninterest of national defense, or in the interest of the common\ndefense of the countries of the Western Hemisphere, or in the\nprosecution o f the war.\nThe proclamation and regulations were still in effect in 1950. K nauff v.\nShaughnessy, supra, 338 U.S. at 546. Thus, when the predecessor to\nSection 212(a)(27) was adopted, aliens who were expected to be active\nin the United States on behalf of organizations that supported countries\nhaving foreign policy conflicts with the United States, were included\namong those who were inadmissible on the ground that their entry\n7 T h at rep o rt recom m ended passage of S. 1832, w hich was lim ited in purpose to\nam ending the A c t o f O ctober 16, 1918, to provide, inter alia, for the exclusion o f those\nconnected w ith Com m unist organizations. T he substance o f S. 1832 was added by the\nSenate to th e House-passed version o f the Subversive A ctivities C ontrol A c t of 1950, and\nthe H ouse later agreed to the addition. See H. R ep. No. 3112, 81st Cong., 2d Sess., at 54\n(1950).\n\n68\n\n\x0cwould be \xe2\x80\x9cprejudicial to the public interest\xe2\x80\x9d or \xe2\x80\x9cprejudicial to the\ninterests of the United States.\xe2\x80\x9d\nThe prohibition in Section 212(a)(27) against the entry of aliens who\nthere is reason to believe would engage in activities that would be\n\xe2\x80\x9cprejudicial to the public interest\xe2\x80\x9d appears to be a direct descendant of\nthe Presidential proclamation and regulations. \xe2\x80\x9cThe chief difference\n. . . is that the operation of this new legislation is not limited to time of\nwar or national emergency. Its inhibitions must be enforced at all times\nas part of our permanent legislative pattern.\xe2\x80\x9d C. Gordon, \xe2\x80\x9cThe Immi\xc2\xad\ngration Process and National Security,\xe2\x80\x9d 24 Temp. L.Q. 302, 306 (1951).\nThe Senate Report that first proposed what later became \xc2\xa7 22 of the\nSubversive Activities Control Act of 1950 (the predecessor of Section\n212(a)(27)), discussed Proclamation 2523 and 8 C FR \xc2\xa7 175.53 as part of\nthe body of immigration law on which Congress was building. S. Rep.\nNo. 2230, 81st Cong., 2d Sess. 22 (1950). The report did not expressly\nrefer to subsection (b), quoted above, or any other subsection of 8 C FR\n175.53. But neither did it express disapproval of the broad sweep of\nimmigration law then in effect, of which the regulations were a part, or\nindicate an intention to narrow them. The tenor of the legislative\nhistory is precisely to the contrary.8\nAgainst this background, it is entirely reasonable to infer that, in\nenacting Section 212(a)(27), Congress contemplated that foreign policy\nconsiderations could play a role in determining whether an alien\xe2\x80\x99s\nactivities in the United States would be \xe2\x80\x9cprejudicial to the public\ninterest.\xe2\x80\x9d 8\n* F o r exam ple, tw o Senate reports recom m ending the am endm ent finally enacted in\n\xc2\xa7 22 o f the Subversive A ctivities C ontrol A ct o f 1950 described the provision as follows:\nSection 1(1) of the A ct o f O ctober 16, 1918, as am ended by the bill, is an\nadm ixture o f existing law and the new provisions o f the bill. U nder existing law,\nam ong the excludable aliens are certain aliens w ho seek to enter the United States\nw hose e n try w ould be prejudicial to the public interest o r w ould endanger the safety\no f the U nited States. T h e com m ittee has broadened this class of excludable aliens to\ninclude those aliens w ho seek to enter the United States to engage in activities w hich\nw ould endanger the welfare o f the Unites States.\nS. Rep. No. 2230, 81st Cong., 2d Sess. 5 (1950); S. Rep. No. 2369, 81st Cong., 2d Sess. 10\n(1950).\nThen-existing statutory law only prohibited the entry o f aliens w ho there w as reason to\nbelieve w ould engage in activities that w ould endanger the safety of the U nited States.\nSee S. Rep. No. 2230, supra, at 28. T he reference in the Senate report to the prohibition\n\xe2\x80\x9c[ujnder existing law \xe2\x80\x9d against entries that w ould be \xe2\x80\x9cprejudicial to the public interest\xe2\x80\x9d\nmust therefore have been to Proclam ation 2523 and 8 C F R \xc2\xa7 175.53. T he passages from\nthe Senate reports express a purpose to retain and codify the substance o f these nonstatutory restrictions.\n\xe2\x80\xa2 T h e Im m igration and N aturalization Service analysis o f \xc2\xa7212(a)(27), w hen the Im m i\xc2\xad\ngration and N ationality A ct o f 1952 w as still in its draft stage, inform ed the C ongress that\nprovisions sim ilar to \xc2\xa7 2 1 2(a)(27) already appeared in the A ct of May 22, 1918 as\nam ended, and Proclam ation 2523. U.S. Im m igration and N aturalization Service, R eport\non S. 716, A Bill to Revise the L aw s Relating to Im m igration, N aturalization and\nN ationality, at p. 212-24. T h e Service did not mention the regulations in its analysis, but\nthe reference to the proclam ation supports the conclusion that \xc2\xa7212(a)(27) m ay be\ninterpreted in light o f the grounds for exclusion specified in the regulations im plem enting\nthe proclam ation.\n\n69\n\n\x0cThe administrative interpretation by the Departments of State and\nJustice has been consistent with this reading of the legislative history.\nWe are informed that over a number o f years, the Department of State\nhas applied Section 212(a)(27) in two different types of cases: Cases\ninvolving a security threat in the narrow sense, such as the entry of\nsaboteurs or persons involved in intelligence missions against the United\nStates, and cases involving potentially far-reaching adverse effects on\nUnited States foreign policy. Exclusion of the Rhodesian aliens was\ntherefore in keeping with the latter aspect of the State Department\xe2\x80\x99s\nprevious application of the section.\nThe interpretation by the Board of Immigration Appeals is not to the\ncontrary. For example, in M atter o f M -, 5 I&N Dec. 248, 252 (1953),\nthe Board stated:\nThe Senate and House Committees which recommended the pas\xc2\xad\nsage of the bill . . . considered the section as one relating to\nsubversives (p. 10, S. Rept. No. 1137, 82d Cong., 2d Sess.; p. 49, H.\nRep. No. 1365, 82d Cong., 2d Sess.). However it is clear that the\nlanguage o f the section is broad enough to include others than subver\xc2\xad\nsives. [Emphasis added.]\nSee also, M atter o f McDonald and Brewster, Int. Dec. #2353 (March 13,\n\n1975), at pp. 3-4. No doubt it was with such an interpretation of\nSection 212(a)(27) in mind that the Departments of State and Justice\nconcluded in 1968 that Rhodesian aliens who would be likely to further\nor encourage the unlawful regime in Southern Rhodesia, could be\nexcluded under the Immigration and Nationality Act without additional\nauthorization in Executive O rder No. 11419.\nIt is our opinion that the language of Section 212(a)(27), its legislative\nhistory, and administrative interpretation all support your conclusion\nthat the six aliens who sought to attend an agricultural conference in\nthe United States were inadmissible under that section.\nII\nA question has arisen in the course of our review of Section\n212(a)(27) as to whether that provision would operate to exclude an\nalien whose mere entry into or presence in the United States would be\n\xe2\x80\x9cprejudicial to the public interest\xe2\x80\x9d or \xe2\x80\x9cendanger the . . . security of the\nUnited States,\xe2\x80\x9d perhaps for foreign policy reasons. As mentioned in\nfootnote 4, the Administration in 1968 apparently assumed that to be\nthe case in choosing to rely on Section 212(a)(27) to prevent the entry\nof Rhodesian aliens who had in the past furthered or encouraged the\nunlawful actions of the illegal regime in Southern Rhodesia. See Secu\xc2\xad\nrity Council Resolution 253, \xc2\xa7 5(b). The exclusion of such aliens pre\xc2\xad\nsumably was intended to be predicated not on the nature of any specific\nactivities in which they would engage while here, but on the serious\nadverse foreign policy consequences of allowing them to be present in\nviolation of Security Council Resolution 253. We believe that the\n70\n\n\x0cconclusion reached in 1968 was based on a reasonable administrative\ninterpretation of Section 212(a)(27).\nIt is true that Section 212(a)(27) does not expressly provide that an\nalien whose entry would be prejudicial to the public interest or endan\xc2\xad\nger national security is inadmissible; it speaks instead of the nature of\nthe activities in which the alien seeks to engage after entering the\nUnited States. Nevertheless, we believe that the circumstances sur\xc2\xad\nrounding the alien\xe2\x80\x99s entry are in some cases quite relevant to the\nassessment of the foreign relations impact of the alien\xe2\x80\x99s subsequent\nactivities in this country.\nWhether or not an alien is inadmissible under Section 212(a)(27)\ndepends on all the facts and circumstances, including foreign policy\nfactors over which the individual alien may have no control. Thus,\nactivities that might be wholly innocuous if engaged in by one alien,\nmight fairly be regarded as \xe2\x80\x9cprejudicial to the public interest\xe2\x80\x9d if en\xc2\xad\ngaged in by another, even if the individual alien did not have a specific\nintent to cause any harm or disturbance while in the United States.\nSection 5(b) of Security Council Resolution 253, to which this coun\xc2\xad\ntry is committed, imposes a duty on Member States to prohibit the\nentry for any purpose of all Rhodesian aliens who have furthered or\nencouraged the unlawful actions of the Rhodesian regime. As a result,\nall of the activities of such persons in the United States, however\nharmless they would be if engaged in by other aliens, might have\nserious foreign policy consequences simply because the Rhodesians\nwould have entered the country in violation of the resolution.10 As a\npractical matter, then, Rhodesian aliens covered by the Security Coun\xc2\xad\ncil Resolution are inadmissible because their entry or presence in the\nUnited States would be prejudicial to the public interest or endanger\nnational security, even though the language of the statute speaks in\nterms of activities of aliens in the United States.11\nThe legislative history supports this interpretation of the statute. For\nexample, the Presidential proclamation and regulations on which Sec\xc2\xad\ntion 212(a)(27) was based were written in terms of an alien whose entry\nwould be prejudicial to the United States or to the public interest, see.\nProclamation 2523, supra; 8 CFR \xc2\xa7 175.52(a) and 175.53 (1949), supra,\nas did the two Senate Reports that first proposed the provision in 1950.\n10 A lternatively, Rhodesian aliens required to be excluded under the Security Council\nResolution could be considered to be inadmissible under \xc2\xa7212(a)(27) on the ground that\ntheir presence in the U nited States w ould be an \xe2\x80\x9cactivity\xe2\x80\x9d that w ould be prejudicial to the\npublic interest or endanger the national security.\n" A n argum ent against the interpretation w e have advanced in the text has been\nsuggested, based on the hypothetical example o f a m ilitary dictator, a presum ed persona\nnon grata in this country, w ho m ight wish to enter the United States to visit his dying\nm other o r to receive m edical attention. W e agree that \xc2\xa7 212(a)(27) w ould ordinarily not\nprevent such an entry. But w e reach that conclusion on the ground that such otherw ise\nharmless activities in this country w ould not usually cause a foreign policy em barrassm ent\no f sufficient m agnitude to be regarded as prejudicial to the public interest simply because\na m ilitary dictator w as involved, not because \xc2\xa7 212(a)(27) is w holly inapplicable in such a\nsetting\n\n71\n\n\x0cSee footnote 8. In fact, 8 C F R \xc2\xa7 175.53(b), quoted earlier, provided that\n\nan entry would be regarded as prejudicial to the public interest if the\nalien \xe2\x80\x9cis a member of, affiliated with, or may be active in the United\nStates in connection with or on behalf of, a political organization\nassociated with or carrying out policies of any foreign government\nopposed to the measures adopted by the Government of the United\nStates in the public interest . .\n[Emphasis added.] This phrase would\nhave barred the members o f the National Farmers\xe2\x80\x99 Union of Southern\nRhodesia, as the Department of State has described that organization,\nregardless of the nature of their intended activities in the United States.\nThe Departm ent of State has suggested that some memorandums and\ncorrespondence from 1959 to 1962 relating to the efforts of a certain\nalien to enter the United States may demonstrate an administrative\ninterpretation that an alien could not be excluded solely on the ground\nthat the circumstances surrounding his or her entry render all subse\xc2\xad\nquent activities \xe2\x80\x9cprejudicial to the public interest\xe2\x80\x9d or a danger to the\nsecurity of the United States. We do not believe that memorandums\nand correspondence in question furnish a sound basis for rejecting our\ninterpretation of the statute.\nSome of the materials do indicate that an alien may not be excluded\nunder Section 212(a)(27) solely on the ground that his native country\nhas stated that it would regard his admission as an unfriendly act.\nSeveral letters also state that the foreign reaction to an alien\xe2\x80\x99s entry is\nnot \xe2\x80\x9cdirectly pertinent\xe2\x80\x9d to his eligibility for a visa. But despite these\nstatements, both factors appear to have played a decisive role in the\nState D epartm ent\xe2\x80\x99s handling of cases over the years. Moreover, while\nthe emphasis was on the particular alien\xe2\x80\x99s intended activities in the\nUnited States, a number of the memorandums and letters state that it\nwas the State Department\xe2\x80\x99s view that the individual\xe2\x80\x99s \xe2\x80\x9centry,\xe2\x80\x9d \xe2\x80\x9cadmis\xc2\xad\nsion,\xe2\x80\x9d or \xe2\x80\x9ccoming\xe2\x80\x9d to the United States would be prejudicial to the\npublic interest, thereby suggesting that it is permissible to consider the\nramifications of the entry itself. Because of these inconsistencies, we\ndecline to rely on the materials made available to us by the Department\nof State as establishing an administrative interpretation that an alien\ncannot be excluded on the ground that his entry or mere presence\nwould be prejudicial to the public interest or endanger the security of\nthe United States.\nThe Service has informed us that it has nothing in its files, other than\npublished opinions of the Board of Immigration Appeals, that might\nshed light on whether an alien may be excluded under Section\n212(a)(27) on the ground that his entry or presence in the United States\nwould be prejudicial to the public interest. We have reviewed the\npublished opinions that discuss Section 212(a)(27), including those al\xc2\xad\nready cited, but we do not find them to be expecially illuminating on\nthe precise question presented here. All involved charges that the alien\nwould engage in specific activities after entering the United States that\n72\n\n\x0cwould be prejudicial to the public interest; there was thus no need to\ndiscuss the foreign policy consequences of the alien\xe2\x80\x99s mere entry or\npresence.12\nWe agree with what we understand to be the position of the Depart\xc2\xad\nment of State that under our analysis, only circumstances of an unusual\nnature could permit a determination that the entry of an alien into the\nUnited States would have such serious adverse foreign policy conse\xc2\xad\nquences that his mere presence and otherwise innocuous activities in\nthis country would be prejudicial to the public interest or endanger\nnational security.13 But in our view, the entry of Rhodesian aliens who\nhave furthered or encouraged the \xe2\x80\x9cunlawful activities\xe2\x80\x9d of the Rhode\xc2\xad\nsian government presents such a case. It is our opinion now, as it was\nin 1968, that Section 212(a)(27) bars their entry.\nWe also agree with your conclusion that whether an alien is barred\nby Section 212(a)(27) should be determined on a case-by-case basis.\nWhen a Southern Rhodesian alien is involved, it will be necessary to\nexamine the nature of his intended activities in the United States\xe2\x80\x94as in\nthe case of the six members of the National Farmers\xe2\x80\x99 Union who were\nexpected to promote export sales of agricultural commodities grown in\n\n12 F or exam ple, in Matter o f M-, 8 I&N D ec 24 (1958), the B oard held th at a 73-yearold form er Rum anian industrialist, w ho had previously lived in the United States for 11\nyears w ithout incident but w ho was alleged to have been a Nazi sym pathizer and\nCom munist sym pathizer in Rum ania before com ing to the United States, was not inadm is\xc2\xad\nsible under \xc2\xa7 212(a)(27). T here was no suggestion, as th ere has been here, th at the alien\'s\nm ere entry o r presence in the United States m ight have had serious adverse foreign\npolicy consequences. T he Board did appear to be o f the view that his expected activities\nafter reentering the U nited States w ould be determ inative, id. at 29-30, but it nevertheless\nundertook an exhaustive review o f the alien\xe2\x80\x99s past affiliations and activities before c o n \xc2\xad\ncluding that he was admissible. A nd the Board was especially influenced by a determ ina\xc2\xad\ntion in a prior proceeding in 1951 that the alien \xe2\x80\x9cw as not w ithin the classes o f aliens\nspecified in form er 8 C F R \xc2\xa7 175 53, that is, aliens w hose entry w ould be deem ed to be\nprejudicial to the interests o f the United States." Id. at 30. [Em phasis added.]\n13 See the follow ing portion o f a letter dated January 14, 1977, from the A dm inistrator\no f the Bureau o f Security and C onsular Affairs, to this Office:\nW hen an alien\xe2\x80\x99s activities are in and o f them selves entirely innocuous\xe2\x80\x94 for example,\nspending a few days or w eeks o f private relaxation at a resort area\xe2\x80\x94it w ould then be\nnecessary to dem onstrate that the alien\xe2\x80\x99s background, notoriety, our g overnm ent\xe2\x80\x99s\npolicies, attitudes and comm itm ents, and other factors w ere such that the spectacle o f\nthe alien\xe2\x80\x99s being given permission by the United States G overnm ent to engage in\nsuch otherw ise innocuous activities w ould or reasonably could be considered to be\nprejudicial to the public interest or to endanger the safety o r security o f the United\nStates. It w ould be the D epartm ent\xe2\x80\x99s view that such a situation w ould necessarily\ninvolve circum stances o f an unusual nature.\n\n73\n\n\x0cSouthern Rhodesia when they attended a conference in the United\nStates\xe2\x80\x94or to determine w hether the particular individual had in the\npast furthered and encouraged the \xe2\x80\x9c unlawful actions\xe2\x80\x9d of the regime to\nsome significant degree.14\nJohn M. H\n\narmon\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9c N o t all Southern Rhodesians co v ered by Security C ouncil R esolution 253 are inad\xc2\xad\nmissible un d er \xc2\xa7 212(a)(27) on the g ro u n d that their mere presence in the United States is\nan activ ity prejudicial to the public interest. A liens traveling on R hodesian passports, see\nR esolution \xc2\xa7 5(a), are inadmissible under \xc2\xa7212(a)(27) o f the A ct. See note 1, supra.\n\n\x0c'


b'Disclosure of Grand Jury Matters to the President and\nOther Officials\n\nT h e A tto rn e y G en eral m ay d isclo se g ra n d ju ry m aterial c o v e re d b y R ule 6 (e ) o f the F e d e ra l R u le s o f\nC rim in a l P ro ce d u re to th e P resid e n t an d m e m b e rs o f th e N a tio n a l S e c u rity C o u n cil w h e re su ch d is \xc2\xad\nclo su re is fo r the p u rp o se o f a ssistin g the A tto rn e y G e n e ra l in h e r e n fo rc e m e n t o f fe d e ra l c rim in a l\nlaw . A lth o u g h u n d e r th o se c irc u m sta n c e s su ch d is c lo su re m ay be m a d e w ith o u t p rio r ju d ic ia l a p \xc2\xad\np ro v a l, th e n am es o f th o se re c eiv in g the g ra n d ju ry m a te ria l m u st b e s u b m itte d to the c o u rt th a t im \xc2\xad\np a n e le d th e gran d j u ry in q u e stio n\n\nT h e re a re a ls o c irc u m sta n c e s w h ere th e P re s id e n t\xe2\x80\x99s c o n stitu tio n a l re sp o n sib ilitie s m ay p ro v id e ju s tif i\xc2\xad\nc atio n fo r th e A tto rn e y G e n eral to d isc lo se g ra n d ju ry m a tte rs to the P resid e n t in d e p e n d e n t o f the\np ro v is io n s o f R ule 6 (e). S u ch c irc u m sta n c e s m ig h t arise, fo r e x a m p le , w h e re the A tto rn e y G e n eral\nle a rn s th ro u g h gran d ju ry p ro c e ed in g s o f a g ra v e th reat o f te rro rism , im p lic a tin g the P re s id e n t\xe2\x80\x99s re \xc2\xad\ns p o n sib ilitie s un d er A rtic le II o f th e C o n stitu tio n .\n\nSeptem ber 21, 1993\n\nM e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l\n\nThis memorandum responds to your request for our legal opinion on the ques\xc2\xad\ntion of whether, and under what circumstances or conditions, the Attorney General\nmay disclose grand jury material covered by Rule 6(e) of the Federal Rules of\nCriminal Procedure in briefings presented to the President and other members of\nthe National Security Council (\xe2\x80\x9cNSC\xe2\x80\x9d).\nWe conclude that the Attorney General may disclose Rule 6(e) m aterials to the\nPresident or to other NSC members where such disclosure is for the purpose of\nassisting the Attorney General in her enforcement of federal criminal law. Disclo\xc2\xad\nsures satisfying this \xe2\x80\x9ccriminal law enforcement purpose\xe2\x80\x9d standard may be made\nwithout prior court approval or a showing o f particularized need, but the names of\nthose who received the information must be supplied to the district court that em\xc2\xad\npaneled the grand jury. Fed. R. Crim. P. 6(e)(3)(A), (B). Subject to obtaining\nprior court approval based on a showing of particularized need, the Attorney G en\xc2\xad\neral may also make such disclosures \xe2\x80\x9c[for] uses related fairly directly to some\nidentifiable litigation, pending or anticipated.\xe2\x80\x9d United States v. Baggot, 463 U.S.\n476, 480 (1983); see also Fed. R. Crim. P. 6(e)(3)(C)(i). These court-approveddisclosures may be made for the purpose of gaining assistance in civil as well as\ncriminal litigation. We do not believe that any of the 6(e) exceptions would apply\nto disclosures made to the President or NSC officials for general policymaking\npurposes, as opposed to obtaining the assistance o f those officials for law enforce\xc2\xad\nment purposes.\n\n59\n\n\x0cOpinions o f th e O ffice o f Legal C ounsel\n\nW e also believe, however, that the President\xe2\x80\x99s ultimate responsibility to super\xc2\xad\nvise the executive branch, and in particular his duty to \xe2\x80\x9ctake Care that the Laws be\nfaithfully executed,\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 3, may sometimes provide a constitu\xc2\xad\ntional justification for the Attorney General to disclose grand jury matters to the\nPresident independent o f the Rule 6(e) exceptions. Disclosures of this nature\nwould be supported by basic separation of powers principles where, for instance,\nthe President has a special need for such information in order to exercise necessary\nsupervision over the Attorney G eneral\xe2\x80\x99s law enforcement functions in matters of\nunusual national significance. Inasmuch as the courts have not directly addressed\nthe extent o f the President\xe2\x80\x99s Article II power in this particular context, any disclo\xc2\xad\nsures o f grand jury material made on the basis of that power alone should be un\xc2\xad\ndertaken with caution. Judicial sanction for such disclosures might be obtained by\ninvoking the court\xe2\x80\x99s inherent supervisory authority to approve disclosures o f grand\njury m aterials not otherw ise covered by one of the Rule 6(e) exceptions in appro\xc2\xad\npriate circum stances.\nI. Disclosures under Rule 6(e)\nRule 6(e)(2) of the Federal Rules of Criminal Procedure establishes a \xe2\x80\x9cGeneral\nRule of Secrecy\xe2\x80\x9d providing that certain persons, including attorneys for the Gov\xc2\xad\nernm ent1, \xe2\x80\x9cshall not disclose matters occurring before the grand jury, except as\notherwise provided for in these rules.\xe2\x80\x9d See United States v. John Doe, Inc. I, 481\nU.S. 102, 107 (1987). Under this rule, no attorney for the Department of Justice\nmay disclose \xe2\x80\x9cmatters occurring before the grand ju ry \xe2\x80\x9d to any other person, unless\none o f the rule\xe2\x80\x99s enum erated exceptions applies. The specified exceptions are set\nforth under subparagraph (3) of Rule 6(e) and may be summarized as follows:\n(1) D isclosure to an attorney for the government for use in the performance of\nthat attorney\xe2\x80\x99s duties. (Exception (A)(i));\n(2) D isclosure to such government personnel as are deemed necessary to assist\nan attorney for the government in the performance of his duty to enforce federal\ncriminal law. (Exception (A)(ii));\n(3) D isclosure directed by a court preliminary to or in connection with a judicial\nproceeding. (Exception (C)(i));\n, (4) D isclosure at the request o f a defendant and approved by a court \xe2\x80\x9cupon a\nshowing that grounds may exist for a motion to dismiss the indictment because of\nmatters occurring before the grand ju ry .\xe2\x80\x9d (Exception (C)(ii));\n(5) D isclosures made by an attorney for the government to another federal grand\njury. (Exception (C)(iii)); and\n(6) D isclosures to state or local law enforcem ent officials permitted by the court\nat the request o f any attorney for the governm ent for purposes of aiding prosecu\xc2\xad\n1 For p u rp o ses o f R ule 6 (e), the Attorney G eneral is an \xe2\x80\x9cattorney for the governm ent \xe2\x80\x9d Fed R C n m P.\n54(c); see U n ite d S ta te s v B a tes, 627 F.2d 3 4 9 , 351 (D C . C ir. 1980).\n\n60\n\n\x0cD isclosure o f G rand Jury M ullers to the P resident and O ther O fficials\n\ntion of violations of state or local law that may be brought forth before the grand\njury. (Exception (C)(iv)).\nA. Subsection (A): Self-executing Exceptions\nRule 6(e)(3)(A) sets forth the exceptions to nondisclosure of grand jury matters\nwhich may be exercised without prior judicial approval or a showing of particular\xc2\xad\nized need. It provides as follows:\n(A) Disclosure otherwise prohibited by this rule of matters oc\xc2\xad\ncurring before the grand jury, other than its deliberations and the\nvote of any grand juror, may be made to \xe2\x80\x94\n(i) an attorney for the government for use in the performance of\nsuch attorney\xe2\x80\x99s duty; and\n(ii) such government personnel (including personnel of a state or\nsubdivision o f a state) as are deemed necessary by an attorney for\nthe government to assist an attorney fo r the government in the p er\xc2\xad\nformance o f such attorney\xe2\x80\x99s duty to enforce federal criminal law.\nId. (emphasis added).\nThe (A)(i) exception clearly would not apply to disclosures to the President or\nmembers of the NSC.2 However, the (A)(n) \xe2\x80\x9cgovernment personnel\xe2\x80\x9d exception\ncould apply to such disclosures in circumstances where they are made for the pur\xc2\xad\npose of obtaining the assistance of the President or NSC members in enforcing\nfederal criminal law.\nAlthough the (A)(ii) exception was primarily designed to allow disclosures to\nlesser-ranking officials or agents assisting a prosecutor in a particular case, there is\nno persuasive reason why the Attorney General cannot make such disclosures to\nthe President or to other senior Administration officials (who do constitute\n\xe2\x80\x9cgovernment personnel\xe2\x80\x9d) for purposes o f obtaining their assistance in carrying out\nfederal criminal law enforcement responsibilities. One plausible example o f such a\nsituation might be the grand jury investigating the terrorist attack on the W orld\nTrade Center. In such a case, it is possible that the Attorney G eneral\xe2\x80\x99s direction\nand supervision of the case could be facilitated by discussing developments\n(including developments brought forth before the grand jury) with the President\nand NSC members such as the Secretary o f State. However, disclosure of such\n\n2\nA lthough the President and some m em bers o f the N SC are attorneys, they are not \xe2\x80\x99\xe2\x80\x98attorneys for the\ng overnm ent\xe2\x80\x9d in the sense in w hich that term is used in R ule 6(e)\n\n61\n\n\x0cO pinions o f th e O ffice o f L egal C ounsel\n\ngrand jury m aterials could not be m ade under the (A)(ii) exception for mere pur\xc2\xad\nposes o f general policymaking.\nW hile we find no case authority specifically addressing (A)(ii) disclosures to the\nPresident or senior government officials at the Cabinet level, we believe the lan\xc2\xad\nguage o f the subsection, its legislative history, and judicial opinions interpreting it\nare com patible with such disclosures under the limitations noted.\nThe text of the (A)(ii) exception on its face allows for disclosures to the Presi\xc2\xad\ndent or to NSC officials in circumstances where the Attorney General (in her ca\xc2\xad\npacity as \xe2\x80\x9can attorney for the government\xe2\x80\x9d) deem s such disclosures necessary to\nobtain the assistance of such officials in the performance of her duties to enforce\nfederal criminal law. In this regard, there is no persuasive reason why the term\n\xe2\x80\x9cgovernm ent personnel\xe2\x80\x9d as used in subparagraph (A)(ii) should be narrowly con\xc2\xad\nstrued to exclude the President or C abinet-level officials.\nThe (A)(ii) \xe2\x80\x9cgovernm ent personnel\xe2\x80\x9d exception was enacted in 1977. Act of July\n30, 1977, Pub. L. No. 95-78, \xc2\xa7 2(a), 91 Stat. 319, 319. The Senate Report on the\n1977 am endm ent explained its origins and purpose as follows:\nThe Rule as redrafted is designed to accommodate the belief . . .\nthat Federal prosecutors should be able, without the time-consuming\nrequirem ent of prior judicial interposition, to make such disclosures\no f grand jury information to other government personnel as they\ndeem necessary to facilitate the performance o f their duties relating\nto criminal law enforcement.\nS. Rep. No. 95-354, at 8 (1977), reprinted in 1977 U.S.C.C.A.N. 527, 531 (\xe2\x80\x9c 1977\nSenate R eport\xe2\x80\x9d) (em phasis added). The R eport\xe2\x80\x99s use o f the permissive phrase \xe2\x80\x9cas\nthey deem necessary\xe2\x80\x9d strongly supports the view that Congress intended federal\nprosecutors to have broad leeway in deciding what government personnel should\nhave access to grand jury materials for purposes o f facilitating enforcement func\xc2\xad\ntions.\nAssessing this legislative history of the (A)(ii) exception in In re Perlin, 589\nF.2d 260 (7th Cir. 1978), the Seventh Circuit stated:\n[T]he history o f the am endm ents of rule 6 ( e ) . . . clearly indicates\nthe continuing Congressional support for inter-agency cooperation\nand the active participation of agency personnel, including agency\nattorneys, in grand jury proceedings.\nId. at 267.\nThe Supreme C o u rt\xe2\x80\x99s opinion in United States v. Sells Engineering, Inc., 463\nU.S. 418 (1983), provides further insight regarding the intended scope of the\n(A )(ii) exception. Sells held that attorneys in the Civil Division of the Department\n\n62\n\n\x0cD isclosure o f G rand Jury M ailers to the P resident an d O ther O fficials\n\nof Justice could not obtain automatic direct disclosure of grand jury materials from\nDepartment prosecutors under the (A)(i) exception where the purpose of the dis\xc2\xad\nclosure was for use in civil suits as opposed to criminal law enforcement. Under\nthose circumstances, the Court held that the Civil Division attorneys must instead\napply for court-approved disclosure under the (C)(i) exception applicable to m at\xc2\xad\nters related to both civil and criminal judicial proceedings. In the course of its\nopinion, however, the Court emphasized the sharp distinction between the auto\xc2\xad\nmatic subsection (A) exceptions applicable to criminal law enforcement and the\nmore restrictive, court-approved subsection (C) exceptions applicable in the civil\ncontext. Referring to materials in the 1977 Senate Report, quoted above, the Court\nsaid that they\nreflectf] the distinction the Senate Committee had in mind: \xe2\x80\x9cFederal\nprosecutors \xe2\x80\x9d are given a free hand concerning use o f grand jury\nmaterials, a t least pursuant to their \xe2\x80\x9cduties relating to criminal law\nenforcement"-, but disclosure of \xe2\x80\x9cgrand jury-developed evidence for\ncivil law enforcement purposes\xe2\x80\x9d requires a (C)(i) court order.\nId. at 441-42 (emphasis added).\nOther opinions also suggest a relatively expansive interpretation of the\n\xe2\x80\x9cgovernment personnel\xe2\x80\x9d exemption. In United States v. Cook, 794 F.2d 561 (10th\nCir.), cert, denied, 479 U.S. 889 (1986), the court upheld applicability of the\n(A)(ii) exception to disclosures to two state police officers who were deputized as\nSpecial Deputy U.S. M arshals to assist in an investigation of illegal drug activities.\nThe court stressed that the officers \xe2\x80\x9cwere needed to aid in the investigation and that\nthe disclosures were necessary to effective aid\xe2\x80\x9d and held that they should be\n\xe2\x80\x9cincluded within even the most restrictive definition\xe2\x80\x9d o f the government personnel\nexemption. Id. at 565; see also United States v. Kilpatrick, 821 F.2d 1456, 1471\n(10th Cir. 1987), aff\xe2\x80\x99d sub nom. Bank o f Nova Scotia v. United States, 487 U.S.\n250 (1988) (\xe2\x80\x9cFederal employees assisting the prosecutor in the investigation and\nprosecution of federal criminal violations are permitted access to grand jury mate\xc2\xad\nrials without prior court permission. However, such support personnel may not use\nthe material except for purposes of assisting Government attorneys to enforce fed\xc2\xad\neral criminal laws.\xe2\x80\x9d); United States v. Claiborne, 765 F.2d 784, 795 (9th Cir.\n1985), cert, denied, 475 U.S. 1120 (1986) (holding that (A)(ii) authorizes disclo\xc2\xad\nsure to federal officials who assist the prosecution in collecting evidence for a\ncase).\nThese cases demonstrate that the category of \xe2\x80\x9cgovernment personnel\xe2\x80\x9d to whom\ndisclosures may be made should not be narrowly construed. We therefore see no\nreason to conclude that the President and other officials o f the NSC could not\nqualify as \xe2\x80\x9cgovernment personnel\xe2\x80\x9d for purposes of this exemption. Rather, the key\nfactor in determining the applicability of this exemption to disclosure = of the kind\n\n63\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nproposed is the extent to which the disclosure is limited to the purpose of obtaining\nthe assistance o f the President and other officials in the Attorney General\xe2\x80\x99s crimi\xc2\xad\nnal law enforcem ent activities. See Sells, 463 U.S. at 442. If disclosures are con\xc2\xad\nfined to that purpose, they should qualify for coverage under the (A)(ii) exception.\nIf the Attorney General does rely upon the (A)(ii) exception to disclose grand\njury m aterial w ithout prior court approval in this context, a list naming all the offi\xc2\xad\ncials to whom such disclosures are m ade must be submitted to the district court that\nem paneled the grand jury. Fed. R. Crim. P. 6(e)(3)(B). While the rule does not\nexplicitly require subm ission of the list of nam es before the disclosure is made, it\nhas been held that subm ission of the names should ordinarily be made prior to dis\xc2\xad\nclosure of the m aterials. United States v. Hogan, 489 F. Supp. 1035, 1038 (W.D.\nW ash. 1980) (citing the 1977 Senate Report at 8, where it was stated, \xe2\x80\x9c[a]lthough\nnot expressly required by the rule, the Com m ittee contemplates that the names of\nsuch personnel will generally be furnished to the court before disclosure is made to\nthem \xe2\x80\x9d). W e believe that, when practicable, the list of names should be submitted\nprior to the disclosures.\n\nB. Subsection (B): E xceptions Requiring Court Approval\nSubsection 6(e)(3)(C) o f the rule sets forth four additional exceptions from its\ngeneral ban on disclosure of grand jury materials. The only one of these excep\xc2\xad\ntions relevant to the question posed is the (C)(i) exception, which provides:\n(C) D isclosure otherwise prohibited by this rule of matters occur\xc2\xad\nring before the grand jury m ay also be made \xe2\x80\x94\n(i) when so directed by a court preliminarily to or in con\xc2\xad\nnection with ajudicial proceeding;\nThis exception has been narrowly interpreted by the Supreme Court. In United\nStates v. Baggot, 463 U.S. at 480, the Court held that the (C)(i) exception did not\nprovide a basis for disclosing grand jury material to agents of the Internal Revenue\nService (\xe2\x80\x9cIRS\xe2\x80\x9d) for purposes of conducting an audit to determine the erstwhile\ngrand jury target\xe2\x80\x99s civil tax liability. The Court first noted that disclosure under\n(C)(i) can only be justified where there is a \xe2\x80\x9cparticularized need\xe2\x80\x9d for access to the\nmaterials and where that need is related to a judicial proceeding. The Court then\nelaborated upon the latter prerequisite:\nIt reflects a judgm ent that not every beneficial purpose, or even\nevery valid governmental purpose, is an appropriate reason for\nbreaching grand jury secrecy. Rather, the Rule contemplates only\nuses related fairly directly to some identifiable litigation, pending or\n\n64\n\n\x0cD isclosure o f G rand Jury M atters to the P resident a n d O ther O fficials\n\nanticipated . . . . If the primary purpose of disclosure is not to assist\nin preparation or conduct of a judicial proceeding, disclosure under\n(C)(i) is not permitted.\nId.\nThe Baggot C ourt\xe2\x80\x99s restrictive interpretation confines the (C)(i) exception to\ndisclosures that are closely and directly related to some identifiable litigation.\nHowever, to the extent that disclosures of the kind described by the Attorney Gen\xc2\xad\neral could satisfy that standard, there is no apparent reason why this exception\nwould not extend to such disclosures. The primary practical value of the (C)(i)\nexception in this context is that it permits disclosures that are related to civil ju d i\xc2\xad\ncial proceedings as well as criminal.\nPrior judicial approval for (C)(i) disclosures must be obtained by filing a peti\xc2\xad\ntion with the district court where the grand jury convened. Fed. R. Crim . P.\n6(e)(3)(D). When the government is the petitioner, ex parte hearings are author\xc2\xad\nized. Id. If the court approves the petition, the court specifies the manner, time,\nand conditions of the disclosure. Id. 6(e)(3)(C).\nII. Disclosures to President under Article II\nApart from the enumerated exceptions from Rule 6(e)\xe2\x80\x99s prohibition against dis\xc2\xad\nclosure of grand jury material, we believe that the Attorney G eneral\xe2\x80\x99s disclosures\nof such materials to the President could in some circumstances be authorized on\nbroader constitutional grounds. As the repository of all executive power in the\nnational government, the President is charged with the duty to \xe2\x80\x9ctake Care that the\nLaws be faithfully executed.\xe2\x80\x9d U.S. Const., art. II, \xc2\xa7\xc2\xa7 1,3. Accordingly, there may\nbe circumstances in which his constitutional responsibilities entitle the President to\nobtain disclosure of grand jury information that has already been made available to\nthe Attorney General, even where that disclosure might not be specifically author\xc2\xad\nized by one o f the exceptions under Rule 6(e).\nIn a brief memorandum prepared to provide responses to W atergate-related\npress inquiries in 1973, this Office opined that it \xe2\x80\x9cis not altogether clear\xe2\x80\x9d whether\nthe President may obtain access to the transcript of a federal grand jury investiga\xc2\xad\ntion.3 The memorandum first advised that the restrictive language of Rule 6(e)\n\xe2\x80\x9cseemingly precludes the disclosure o f [matters occurring before the grand jury] to\nthe President because he is not a member of the group specifically authorized to\nobtain this information.\xe2\x80\x9d Id. at 1. This aspect of the memorandum may be attrib\xc2\xad\nuted to the fact that the (A)(ii) exception for \xe2\x80\x9cgovernment personnel\xe2\x80\x9d had not yet\nbeen incorporated in the rule at the time the opinion was written. However, the\n\n3\nM em orandum fo r H orace W ebb, A cting D irector, Public Inform ation O ffice, from Robert G. D ixon,\nA ssistant A ttorney G eneral, O ffice o f Legal C ounsel, Re. Q uestions fr o m the Press on th e W atergate In v e s\xc2\xad\ntigation (A pr. 30, 1973)\n\n65\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nmemorandum went on to state, \xe2\x80\x9cit can be argued that the President by virtue of his\nresponsibility in administering the executive branch is authorized to obtain the\ntranscripts of testimony before a grand jury.\xe2\x80\x9d Id. Stressing that all executive\npower is vested in the President, and his particular obligation to take care that the\nlaws be faithfully executed, U.S. Const, art. II, \xc2\xa7\xc2\xa7 1 ,3 , the memorandum stated:\n[T]hat pow er which is vested in the Attorney General to supervise\nall litigation empowers the President to supervise the litigation and\nto perform any functions incidental thereto because the power o f the\nAttorney General is a residue o f the m ore general power vested in\nthe President by the Constitution. See also 1 Op. A.G. 453 (1855)\n(the heads o f all Departments are subject to the direction of the\nPresident).\nId. at 2. The memorandum added that its opinion on this question was \xe2\x80\x9cpurely\nhypothetical\xe2\x80\x9d because the President had ordered that no transcripts o f testimony\nbefore the W atergate grand jury were to be sent to the W hite House. Id.\nA m em orandum opinion prepared for the President by Attorney General Griffin\nBell in 1977 provides additional pertinent insight regarding the President\xe2\x80\x99s consti\xc2\xad\ntutional authority in working with the Attorney General. Proposals Regarding an\nIndependent Attorney General, 1 O p. O.L.C. 75 (1977). That opinion expressed\n\xe2\x80\x9cserious doubts\xe2\x80\x9d as to the constitutionality of certain proposed legislation provid\xc2\xad\ning that the Attorney General should be appointed for a definite term and remov\xc2\xad\nable from office only for cause or m alfeasance. The opinion placed great stress on\nthe President\xe2\x80\x99s constitutional responsibility as C hief Executive to supervise the law\nenforcem ent functions o f the Attorney General, stating:\nIndeed, the President must be held accountable for the actions o f the\nexecutive branch; to accomplish this he must be free to establish\npolicy and define priorities. Because laws are not self-executing,\ntheir enforcem ent obviously cannot be separated from policy con\xc2\xad\nsiderations. The Constitution contem plates that the Attorney Gen\xc2\xad\neral should be subject to policy direction from the President. As\nstated by the Supreme Court: \xe2\x80\x9cThe Attorney General is . . . the\nhand o f the President in taking care that the laws of the United\nStates . . . be faithfully executed.\xe2\x80\x9d Ponzi v. Fessenden, 258 U.S.\n254, 262 (1922). Removing the Attorney General from the Presi\xc2\xad\nd en t\xe2\x80\x99s control would make him unaccountable to the President, who\nis constitutionally responsible for his actions.\n\n66\n\n\x0cD isclosure o f G rand Jury M atters to the P resident a n d O ther Officials\n\nId. at 76; see also M yers v. United States, 272 U.S. 52, 133 (1926) (stressing that\n\xe2\x80\x9c[e]ach head of a department is and must be the President\xe2\x80\x99s alter ego in the matters\nof that department where the President is required by law to exercise authority\xe2\x80\x9d).\nThe foregoing Attorney G eneral\xe2\x80\x99s opinion focused on the President\xe2\x80\x99s supervi\xc2\xad\nsory authority over the Attorney General in the context of the removal power. The\nconstitutional principles it invoked are nevertheless pertinent to the President\xe2\x80\x99s\nability to obtain information needed to discharge his responsibilities relative to the\nAttorney General\xe2\x80\x99s functions and to \xe2\x80\x9ctake care that the laws are faithfully exe\xc2\xad\ncuted.\xe2\x80\x9d In some circumstances, we believe that the President\xe2\x80\x99s Article II responsi\xc2\xad\nbilities in this area may independently justify the Attorney G eneral\xe2\x80\x99s disclosure to\nhim of pertinent grand jury information. A prime example of such circumstances\nmight be a grand jury investigation of major international terrorist activity in the\nUnited States, involving a threat to domestic peace and national security. In such a\ncase, the President should be able to share grand jury information legitimately pos\xc2\xad\nsessed by the Attorney General in order to aid the President\xe2\x80\x99s handling o f the over\xc2\xad\nall law enforcement crisis. Similarly, presidential access to such grand jury\ninformation would also appear justified under the removal power, see M yers, in a\ncase where, for example, the integrity or loyalty of a presidential appointee holding\nan important and sensitive post was implicated in the grand jury investigation.\nAlthough we find no opinions directly addressing this issue, several cases sug\xc2\xad\ngest that the constitutional duties of the respective branches may provide inde\xc2\xad\npendent support for their access to grand jury information. In M atter o f Grand\nJury Subpoena o f Rochon, 873 F.2d 170, 174 (7th Cir. 1989), the court observed\nas follows in reversing a district court order disqualifying the Attorney General\nfrom participating in a grand jury investigation on alleged conflict o f interest\ngrounds:\n[A] federal district court order prohibiting the Attorney General of\nthe United States from participating in a grand jury investigation is\nno small matter, even if the investigation could continue in his ab\xc2\xad\nsence. Since initiating a criminal case by presenting evidence be\xc2\xad\nfore the grand jury is \xe2\x80\x98\xe2\x80\x9c an executive function within the exclusive\nprerogative of the Attorney G eneral,\xe2\x80\x9d \xe2\x80\x99 United States v. Chanen, 549\nF.2d 1306, 1312-13 (9th Cir.) (quoting In re Persico, 522 F.2d 41,\n54-55 (2d Cir. 1975)), cert, denied, 434 U.S. 825, 98 S. Ct. 72, 54\nL.Ed.2d 83 (1977), such an order raises sharp separation-of-powers\nconcerns. As the Ninth Circuit has stated, although the \xe2\x80\x98\xe2\x80\x9c grand jury\nis subject to a supervisory power in the courts, aimed at preventing\nabuses o f its processes or authority,\xe2\x80\x99\xe2\x80\x9d id. at 1313 (quoting 1 W right,\nFederal Practice and Procedure \xc2\xa7 101, at p. 151 (1969)), \xe2\x80\x9cthe separation-of-powers principle imposes significant limits on it.\xe2\x80\x9d\n\n67\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\nId. (quoting United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir. 1985)).\nTwo low er court decisions of note have upheld congressional access to grand\njury m aterials in aid of that branch\xe2\x80\x99s constitutional power o f impeachment. In\nGrand Jury Proceedings o f Grand Jury No. 81-1, 669 F. Supp. 1072, 1074-75\n(S.D. Fla.), a ff\xe2\x80\x99d, 833 F.2d 1438 (1 1th Cir. 1987), the court held that the House\nJudiciary C om m ittee was entitled to receive the record of grand jury proceedings in\nfurtherance o f its im peachm ent investigation of Judge Alcee Hastings. Although\nthe com m ittee\xe2\x80\x99s access to the materials was separately justified on the basis of Fed.\nR. Crim. P. 6(e)(3)(C)(i), the court held that the disclosure was also justified on the\nbasis of, inter alia, the Impeachment Clause. U.S. Const, art. I, \xc2\xa7 2; see also In re\nReport and Recommendation of June 5, 1972 G rand Jury\xe2\x80\x99, 370 F. Supp. 1219\n(D.D.C.), mandamus denied sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir.\n1974) (district cou rt\xe2\x80\x99s decision granting the W atergate grand ju ry \xe2\x80\x99s request that its\nreport on the matters it investigated be submitted to the House Judiciary Com m it\xc2\xad\ntee, upheld by court o f appeals in denying m andam us relief).\nThese decisions should be read with some caution because the disclosures of the\ngrand jury m aterials at issue were directly related to impeachment proceedings \xe2\x80\x94\nwhich have been viewed as within the coverage o f the Rule 6(e)(3)(C)(i) exception\n\xe2\x80\x94 and were undertaken only after obtaining prior judicial approval. Nonetheless,\nthey dem onstrate the courts\xe2\x80\x99 willingness to recognize an independent constitutional\nbasis for disclosures o f grand jury inform ation outside the provisions o f Rule 6(e).\nThus, if congressional access to grand jury m aterials may be independently justi\xc2\xad\nfied on the basis o f its Article I pow er, it would be anomalous to contend that\npresidential access to such materials could not be justified on the basis of the\nPresident\xe2\x80\x99s Article II powers.\nIn the absence o f judicial precedent on this point, however, any disclosure of\ngrand jury m atter to the President on this basis should be cautiously undertaken\nand reserved for matters o f clear executive prerogative in areas where the Rule\n6(e)(3)(A )(ii) exception could not be used. Because such disclosures would be\nbased on the P resident\xe2\x80\x99s inherent constitutional powers rather than Rule 6(e), the\nrule\xe2\x80\x99s various procedural requirements would not be applicable. Nonetheless, the\nrisk o f constitutional confrontation could be minimized by seeking the approval of\nthe district court that impaneled the grand jury, invoking the court\xe2\x80\x99s inherent\nauthority to disclose grand jury m aterials for reasons other than those specified in\nRule 6(e).\nA federal court\xe2\x80\x99s \xe2\x80\x9cinherent\xe2\x80\x9d pow er to authorize disclosure of grand jury matters\noutside the param eters o f Rule 6(e) was recognized by the Eleventh Circuit in In re\nPetition, 735 F.2d 1261, 1268 (11th Cir.), cert, denied, 469 U.S. 884 (1984). At\nissue was w hether the Judicial Council of the Eleventh Circuit could have access to\nrecords of a federal grand jury in connection with the Council\xe2\x80\x99s investigation of\nJudge A lcee H astings under the Judicial C ouncils Reform and Disability Act, 28\nU.S.C. \xc2\xa7 372. The court recognized that none o f the Rule 6(e) exceptions applied\n\n68\n\n\x0cD isclosure o f Grand Ju ry M atters to the P resident a n d O ther O fficials\n\nto the request, although it noted that the investigation in question was \xe2\x80\x9cvery simi\xc2\xad\nlar\xe2\x80\x9d to the \xe2\x80\x9cjudicial proceedings\xe2\x80\x9d covered by the Rule 6(e)(3)(C)(i) exception.\nNonetheless, the Eleventh Circuit affirmed the district court\xe2\x80\x99s holding that Rule\n6(e) did not preclude it \xe2\x80\x9cfrom fashioning an alternate method for disclosure under\nits general supervisory authority over grand jury proceedings and records.\xe2\x80\x9d 735\nF.2d at 1267-68.4 As the court explained the inherent power doctrine:\n[I]t has been authoritatively said that [Rule 6(e)] is not the true\nsource of the district court\xe2\x80\x99s power with respect to grand jury rec\xc2\xad\nords but rather is a codification of standards pertaining to the scope\nof the power entrusted to the discretion of the district court.\nId. at 1268. After citing examples of how the courts have influenced the develop\xc2\xad\nment of Rule 6(e) through the exercise of their \xe2\x80\x9cinherent power\xe2\x80\x9d over grand jury\nmaterials, the court stated:\nThese examples from the history o f Rule 6(e) indicate that the ex\xc2\xad\nceptions permitting disclosure were not intended to ossify the law,\nbut rather are subject to developm ent by the courts in conformance\nwith the rule\xe2\x80\x99s general rule o f secrecy.\nId. at 1269. The court concluded that \xe2\x80\x9cit is certain that a court\xe2\x80\x99s power to order\ndisclosure of grand jury records is not strictly confined to instances spelled out in\nthe rule,\xe2\x80\x9d id. at 1268, but it stressed that the courts can only order disclosure out\xc2\xad\nside the rule in \xe2\x80\x9cexceptional circumstances consonant with the rule\xe2\x80\x99s policy and\nspirit.\xe2\x80\x9d Id. at 1269.\nAlthough the Eleventh Circuit\xe2\x80\x99s \xe2\x80\x9cinherent power\xe2\x80\x9d doctrine has not been widely\ncited by the courts in published opinions, it does provide one recognized frame\xc2\xad\nwork for seeking judicial approval of disclosures of grand jury material to the\nPresident based on constitutional authority rather than on Rule 6(e).\n\nW ALTER DELLINGER\nActing Assistant Attorney General\nOffice o f Legal Counsel\n4 T he Eleventh C irc u it\'s holding on this issue has been criticized in one d istrict court decision In M atter\no f E lectronic S u rveillance, 596 F. Supp 991, 1001 (E D M ich 1984), the court asserted that the \xe2\x80\x9c Eleventh\nC irc u it\'s reliance on the inherent pow ers d o ctrin e is su sp ect.\xe2\x80\x99\xe2\x80\x9d In support o f this position, the d istrict court\nc ontend ed that the Suprem e C o u rt\'s decision in U nited S ta te s v. Baggot 463 U S. 4 76 (1983) had im plicitly\nrejected extra-R ule 6(e) disclosures because the trial court in B aggot had found that disclosure w as author\xc2\xad\nized un d er the inherent pow ers doctrine, b u t the Suprem e C o u rt had held against disclosure b ecau se the\nstandards o f Rule 6 (e )(3 )(C )(l) had not been satisfied. W e do not read the Baggot decision as taking any\nposition, one w ay or the other, on the inherent pow ers d o ctrin e because, as the C ourt noted, certiorari there\nwas lim ited to the narrow question o f w hether an IRS civil tax audit is \xe2\x80\x98\xe2\x80\x98p re lim in a ry ] to or in connection\nw ith a ju d icial proceeding \xe2\x80\x99 under the (C )(i) e x cep tio n Id at 478 (alteration in original)\n\n69\n\n\x0c'


b'Appointment of a Federal Judge to the\nUnited Nations Delegation\nIf this were a matter of first impression, appointing a federal judge to be a representative of the United\nStates to the General Assembly of the United Nations would be inconsistent with the constitutional\ndoctrines of separation of powers and independence of the judiciary. However, because of the\nlongstanding practice of appointing federal judges to temporary office in the Executive Branch, and\nthe absence of any explicit constitutional text, it cannot be maintained that such an appointment\nwould be unconstitutional.\n\nAugust 5, 1976\n\nMEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL\nTO THE PRESIDENT\nThis is in response to your inquiry relating to the appointment of a judge of the\nU.S. Court of Appeals1 to be a representative of the United States to the General\nAssembly of the United Nations.\nSection 2(c) of the United Nations Participation Act of 1945, Pub. L. No. 79264, \xc2\xa7 2(c), 59 Stat. 619, codified at 22 U.S.C. \xc2\xa7 287(c) (1976), provides that the\nPresident shall appoint by and with the advice and consent of the Senate not to\nexceed five representatives of the United States to attend a specified session or\nsessions of the General Assembly of the United Nations. Pursuant to section 3 of\nthe Act, 22 U.S.C. \xc2\xa7 287a (1976), those representatives \xe2\x80\x9cact in accordance with the\ninstructions of the President transmitted by the Secretary of State.\xe2\x80\x9d\nEven though the Constitution does not contain for judges any express prohibition from simultaneous service in the Executive Branch similar to that established\nfor congressmen under Article I, Section 6, Clause 2, I would nonetheless advise,\nif this were a matter of first impression, that an appointment of the sort suggested\nwould be inconsistent with the constitutional doctrines of separation of powers and\nindependence of the judiciary. However, in addition to the absence of any explicit\nprohibition, there is a constitutional practice of appointing federal judges to\ntemporary office in the Executive Branch which goes back to the diplomatic\nservice rendered by Chief Justices John Jay and Ellsworth during the administrations of Presidents Washington and John Adams. The last instance was the\nappointment of District Judge Boldt to the position of Chairman of the Pay Board\nin 1971.2 Because of this longstanding practice, and the absence of any explicit\n\n1\n\nWe have been informally advised that the judge in question is in active service.\nFor other instances, see, e.g., International Military Tribunal, 40 Op. Att\xe2\x80\x99y Gen. 423 (1945);\nNominations of Hon. Marvin Jones and Hon. John Caskie Collet, S. Exec. Rep. No. 80-7 (1947),\nreprinted in Independence of Judges: Should They Be Used for Non-Judicial Work?, 33 A.B.A.J. 792\n(1947); Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law 704 & n. (1956) (\xe2\x80\x9cMason\xe2\x80\x9d).\n2\n\n393\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nconstitutional text, I think it cannot be maintained that such an appointment would\nbe unconstitutional.\nDuring this century, however, it has been asserted with increasing frequency\nthat, while the practice of appointing judges to temporary positions in the Executive Branch may have been justified by the conditions prevailing during the early\nyears of the Republic, \xe2\x80\x9cthe propriety of the practice should be examined anew if\nthe integrity of the judiciary in American life is to be preserved.\xe2\x80\x9d S. Exec. Rep.\nNo. 80-7, supra note 2, at 2. That report cites the following undesirable aspects of\nsuch appointments:\n(1) Reward may be conferred or expected in the form of elevation\nto a higher judicial post.\n(2) The judicial and executive functions may be improperly\nmerged.\n(3) The absence of the judge from his regular duties increases the\nwork load of the other judges of the court, if any, and may result in\nan impairment of judicial efficiency in the disposition of cases.\n(4) Nonjudicial activities may produce dissension or criticism and\nmay be destructive of the prestige and respect of the Federal judiciary.\n(5) A judge, upon resumption of his regular duties, may be called\nupon to justify or defend his activities under an Executive commission.\nId. at 6 (footnotes omitted).3\nIn 1958, Chief Justice Warren, in a letter addressed to Congressman Keating,\ncommented adversely on a proposal to have a justice of the Supreme Court serve\non a commission to determine presidential disability:\nMY DEAR MR. CONGRESSMAN: During the time the subject of inability of a President to discharge the duties of his office has been\nunder discussion, the members of the Court have discussed generally, but without reference to any particular bill, the proposal that a\nmember or members of the Court be included in the membership of a\nCommission to determine the fact of Presidential inability to act.\n\n3\nFor Chief Justice Stone\xe2\x80\x99s rejection of President Franklin D. Roosevelt\xe2\x80\x99s offer to serve on a commission to study the rubber supply during World War II, and for his attitude on Justice Jackson\xe2\x80\x99s\nservice on the Nuremberg Tribunal, see Mason, supra note 2, at 709\xe2\x80\x9320.\n\n394\n\n\x0cAppointment of a Federal Judge to the United Nations Delegation\n\nIt has been the belief of all of us that because of the separation of\npowers in our Government, the nature of the judicial process, the\npossibility of a controversy of this character coming to the Court,\nand the danger of disqualification which might result in lack of a\nquorum, it would be inadvisable for any member of the Court to\nserve on such a Commission.\nI realize that Congress is confronted with a very difficult problem,\nand if it were only a matter of personal willingness to serve that anyone in the Government, if requested to do so, should make himself\navailable for service. However, I do believe that the reasons above\nmentioned for nonparticipation of the Court are insurmountable.4\nThis trend culminated in 1973 in the approval by the Judicial Conference of the\nUnited States of Canon 5(G) of the Code of Judicial Conduct of United States\nJudges:\nExtra-judicial appointments. A judge should not accept appointment\nto a governmental committee, commission, or other position that is\nconcerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his country, state, or locality\non ceremonial occasions or in connection with historical, educational, and cultural activities.\nCommentary: Valuable services have been rendered in the past to the\nstates and the nation by judges appointed by the executive to undertake important extra-judicial assignments. The appropriateness of\nconferring these assignments on judges must be reassessed, however,\nin light of the demands on judicial manpower created by today\xe2\x80\x99s\ncrowded dockets and the need to protect the courts from involvement\nin extra-judicial matters that may prove to be controversial. Judges\nshould not be expected or permitted to accept governmental appointments that could interfere with the effectiveness and independence of the judiciary.\nSince the duties of the United States Representative to the General Assembly of\nthe United States are not of a historical, educational, or cultural nature, Canon\n5(G) precludes a federal judge on active duty from accepting that position. It is far\n\n4\nReprinted in Presidential Inability: Hearings Before the Subcomm. on Constitutional Amendments\nof the S. Comm. on the Judiciary, 85th Cong., 2d Sess. at 14 (1958). Nevertheless, Chief Justice Warren\naccepted the position of Chairman of the Commission to investigate the assassination of President\nKennedy.\n\n395\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nfrom clear what sanctions are available for violation of the Judicial Conference\xe2\x80\x99s\nCanons. Some judges have openly refused to comply with those portions which\nrelate to required financial disclosure\xe2\x80\x94with apparent impunity except for\npublication of their names by (I believe) the Administrative Office of the United\nStates Courts. Nonetheless, it does seem inadvisable to place the President in the\nposition of prompting action which is in violation of the Canons.\nFinally, I wish to recall the fact that the Executive Branch has taken a rather\nfirm stand of late on various matters bearing upon the principle of separation of\npowers. I refer in particular to our opposition to disapproval of executive action by\none-house or concurrent resolutions, and congressional participation in the\nappointment of executive officers. It would invite attack to combine such a pristine\nview of separation vis-\xc3\xa0-vis the Congress with a latitudinarian stance insofar as the\ncourts are concerned.\nANTONIN SCALIA\nAssistant Attorney General\nOffice of Legal Counsel\n\n396\n\n\x0c'