b"United States Attorney's Representation of\nPrivate Insurance Company in Civil Litigation\nIt is not improper for the Department of Justice to admit the liability o f the United States\non an indemnity claim in civil litigation, even if the Department previously refused to\nenter into a \xe2\x80\x9chold harmless\xe2\x80\x9d agreement with the party seeking indemnity.\nRepresentation arrangement, whereby the United States Attorney will appear as counsel\nboth for a private insurance group and for the United States in the same civil litigation,\ncreates no ethical difficulty, given the coincidence o f both parties\xe2\x80\x99 interests and their\nconsent.\n\nJanuary 9, 1981\nM EM ORANDUM O PIN IO N FO R T H E U N IT E D STA TES\nATTORNEY, EA STER N D ISTR IC T O F NEW YORK\nYou have requested the views of this Office on two questions that\nhave arisen in connection with civil litigation in the Eastern District\ninvolving the New Hampshire Insurance Group (NHIG). The facts, as\nwe understand them, are as follows: NH IG has been sued on a perform\xc2\xad\nance bond or bonds that were written by a bonding agent who was\nworking undercover for the Federal Bureau of Investigation (FBI).\nNH IG was originally represented in the litigation by private counsel,\nbut your office has recently assumed the defense under a representation\nagreement that was developed with the approval o f the Associate\nAttorney General. While represented by private counsel, N H IG filed a\nthird-party complaint against the United States seeking indemnity for\nany losses that it might sustain in the litigation. The Torts Branch of\nthe Civil Division has now proposed that your office answer the thirdparty complaint on behalf of the United States, and it has suggested\nthat the complaint be answered in a way that would effectively admit\nthe liability or potential liability of the United States on the indemnity\nclaim.\nYour questions are the following: First, inasmuch as the Department\nhas previously declined to enter into an explicit \xe2\x80\x9chold harmless\xe2\x80\x9d agree\xc2\xad\nment with NH IG regarding these bonds, is it proper for the D epart\xc2\xad\nment to admit that the United States is or may be liable to N H IG on\nthe indemnity claim? Second, is it proper from a representational stand\xc2\xad\npoint for your office to appear as counsel both for N H IG and for the\nUnited States?\n35\n\n\x0cW e have discussed these questions with the Deputy Associate A ttor\xc2\xad\nney General and Director o f the T orts Branch. Our views are set forth\nbelow.\nT here is no law, regulation, or departmental policy that prevents the\nD epartm ent from admitting the liability of the United States in a civil\ncase, if the United States is indeed liable, given the facts and the\napplicable law. If the dealings among the FBI, the undercover agent,\nand N H IG give NHIG a statutory cause of action for damages against\nthe United States, it is proper for the Department to admit the liability\no f the United States. The unwillingness of the Department to enter into\nan express \xe2\x80\x9chold harmless\xe2\x80\x9d agreement with NH IG resulted not from a\nrule against admitting accrued liability, but from a belief that the\nD epartm ent lacked, or m ay have lacked, the authority to create a new,\npurely contractual obligation to hold N H IG harmless. For reasons we\nneed not explore, the Com ptroller General has suggested that the\nAntideficiency A ct prevents executive officers from entering into cer\xc2\xad\ntain kinds of indemnity agreements, and there is uncertainty in any case\nabout the authority of the Departm ent to pay from general departmen\xc2\xad\ntal appropriations certain private claims arising from the conduct of\ndepartmental investigators and agents. These technical fiscal constraints\ndo not prevent the Departm ent from acknowledging the validity of\nwell-founded claims asserted against the United States in civil litigation;\nnor do they prevent the due payment o f such claims from the judgment\nfund.\nAs regards the representation question, we have two observations.\nFirst, the Department has agreed to defend N H IG in the main action; it\nhas not agreed to prosecute N H IG \xe2\x80\x99s claim against the United States.\nT here would be grave doubt about our authority to do the latter, but it\nis clear that a defense of N H IG will advance the interests of the United\nStates, given our contingent liability for the losses N H IG may sustain.\nIn other words, there is a coincidence of interests between N H IG and\nthe United States in the main action. This brings us to the second point.\nBecause of the coincidence of interests, and because both parties have\nconsented to the representation arrangement, we think that the dual\nappearance of government counsel in this case, to defend N H IG on the\none hand and to admit the liability of the government on the other,\ncreates no ethical difficulty, at least at this stage. This is an unusual\ncase, but we think the representation arrangement is proper.\nJ o h n M. H a r m o n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n36\n\n\x0c"


b'Applicability of 18 U.S.C. \xc2\xa7 207(a) to the Union Station\nDevelopment Corporation\n18 U .S .C . \xc2\xa7 207(a) does not prohibit a fo rm er em ployee o f the D istrict o f C olum bia governm ent now\nw o rking fo r the U nion S tation Redevelopm ent C orporation from com m unicating with the D istrict\ng overnm ent co n cerning m atters on w hich she worked as a D istrict em ployee, because the Corpo\xc2\xad\nration should be regarded as \xe2\x80\x9cthe U n ited S tates\xe2\x80\x9d for the purposes o f that statute.\n\nMay 10, 1988\nM\n\nem o ran d u m\n\nO\n\nO f f ic e\n\np in io n f o r t h e\nof\n\nD eputy D\n\nir e c t o r\n\nG o v e r n m e n t E t h ic s\n\nThis responds to your request for the opinion of this Office whether 18 U.S.C.\n\xc2\xa7 207(a) bars a former employee of the District of Columbia government now\nworking for the Union Station Redevelopment Corporation (\xe2\x80\x9cUSRC\xe2\x80\x9d) from com\xc2\xad\nmunicating with the District government in connection with matters on which\nshe worked as a District employee. Section 207(a) prohibits former federal gov\xc2\xad\nernment employees, including employees of the District of Columbia govern\xc2\xad\nment, from representing \xe2\x80\x9cany other person (except the United States)\xe2\x80\x9d in matters\non which the employee worked as a government employee. For the reasons set\nforth below, we conclude that section 207(a) poses no bar to the former em\xc2\xad\nployee\xe2\x80\x99s communicating with the District government because USRC should be\nregarded as \xe2\x80\x9cthe United States\xe2\x80\x9d for purposes of that statute.\nIn the past, we have looked to the definition of \xe2\x80\x9cagency of the United States\xe2\x80\x9d\nin 18 U.S.C. \xc2\xa7 6 to determine if an entity should be regarded as the United States\nfor the purposes of the conflict of interest laws. See Applicability o f 18 U.S.C.\n\xc2\xa7 205 to Union Organizing Activities o f Department o f Justice Employee, 5 Op.\nO.L.C. 194 (1981) (Office of the Architect of the Capitol an agency of the United\nStates for purposes of 18 U.S.C. \xc2\xa7 205); Letter for the Secretary of the Army,\nfrom Attorney General Clark (Dec. 2, 1948) (Panama Railroad Company an\nagency of the United States for purposes of the conflict of interest laws). Section\n6 provides:\nThe term \xe2\x80\x9cagency\xe2\x80\x9d includes any department, independent es\xc2\xad\ntablishment, commission, administration, authority, board or bu\xc2\xad\nreau of the United States or any corporation in which the United\nStates has a proprietary interest, unless the context shows that such\nterm was intended to be used in a more limited sense.\n84\n\n\x0c18 U.S.C. \xc2\xa7 6. The legislative history of the provision adds:\nThe phrase \xe2\x80\x9ccorporation in which the United States has a pro\xc2\xad\nprietary interest\xe2\x80\x9d is intended to include those governmental cor\xc2\xad\nporations in which stock is not actually issued, as well as those in\nwhich stock is owned by the United States. It excludes those cor\xc2\xad\nporations in which the interest of the Government is custodial or\nincidental.\nH.R. Rep. No. 304, 80th Cong., 1st Sess. A6 (1947) (revisers\xe2\x80\x99 notes reprinted in\n18 U.S.C. \xc2\xa7 6).\nFew judicial precedents are available to guide us in interpreting 18 U.S.C.\n\xc2\xa7 6, and none of those involve corporations similar to USRC.\' In his 1948 letter\nto the Secretary of the Army, supra, the Attorney General concluded that the\nPanama Railroad Company was an agency of the United States under 18 U.S.C.\n\xc2\xa7 6. Although he did not explain what factors led to that conclusion, an exami\xc2\xad\nnation of the status of the Panama Railroad Company in 1948 reveals several rel\xc2\xad\nevant considerations. Under the Act of June 29, 1948, 62 Stat. 1075, 1076-80,\nthe Panama Railroad Company was \xe2\x80\x9can agency and instrumentality of the United\nStates,\xe2\x80\x9d funded by congressional appropriations and transfers from other gov\xc2\xad\nernment agencies, with the responsibility for operating a railroad across the\nPanamanian Isthmus and for building and maintaining the infrastructure of the\nCanal Zone.\nMore helpful is the discussion of the definition of \xe2\x80\x9cagency of the United States\xe2\x80\x9d\nin this Office\xe2\x80\x99s opinion finding the Federal National Mortgage Association\n(\xe2\x80\x9cFNMA\xe2\x80\x9d) an agency of the United States for the purposes of 18 U.S.C. \xc2\xa7 431.\nSection 431, another conflict of interest provision, prohibits Members of Con\xc2\xad\ngress from entering into contracts with agencies of the United States. In a mem\xc2\xad\norandum for Joseph F. Dolan, Assistant Deputy Attorney General, from Norbert\nA. Schlei, Assistant Attorney General, Office of Legal Counsel (Dec. 18, 1963)\n(\xe2\x80\x9cSchlei Memorandum\xe2\x80\x9d), we concluded that the status of the FNMA as an agency\nof the United States precluded the FNMA\xe2\x80\x99s representation by a law firm of which\na Congressman was a member. We examined the charter of the FNMA and de\xc2\xad\ntermined that it was a \xe2\x80\x9ccorporation in which the United States has a proprietary\ninterest.\xe2\x80\x9d Id. at 3. In making this determination we took into account the follow\xc2\xad\ning factors: 1) the corporation was created by federal statute; 2) one of the\nFNMA\xe2\x80\x99s functions was \xe2\x80\x9cto provide Government assistance for certain types of\nmortgages\xe2\x80\x9d; 3) the FNMA was a mixed-ownership corporation in which the Sec\xc2\xad\nretary of the Treasury owned the preferred stock; and 4) the United States exer\xc2\xad\ncised substantial control over the FNM A\xe2\x80\x99s activities. Id. at 4\xe2\x80\x946.\n\n1\nCompare United States v Allen, 193 F. Supp. 954,957 (S D. Cal. 1961) (a federal grand jury is not an agency\nof the United States) with United States v. Stark, 131 F. Supp. 190, 194 (D. Md. 1955) (the FBI is an agency o f the\nUnited States). Neither o f these cases suggests any standards that can be used to decide whether a particular cor\xc2\xad\nporate entity should be regarded as an \xe2\x80\x9cagency o f the United States" under the statute.\n\n85\n\n\x0cBased upon these precedents, we believe that USRC should be regarded as an\nagency of the United States for purposes of title 18 if the interest of the United\nStates in the corporation is \xe2\x80\x9cproprietary,\xe2\x80\x9d but not if the interest of the United\nStates is \xe2\x80\x9ccustodial or incidental.\xe2\x80\x9d In making this determination, we look to\nUSRC\xe2\x80\x99s functions, financing, control, and management. Cf. Government Nat\xe2\x80\x99I\nMortgage Ass\xe2\x80\x99n v. Terry, 608 F.2d 614, 618 (5th Cir. 1979).2\nU SR C \xe2\x80\x99s functions are those entrusted by Congress to the Department of Trans\xc2\xad\nportation in the Union Station Redevelopment Act of 1981, 40 U.S.C. \xc2\xa7\xc2\xa7\n801-819. Congress anticipated that \xe2\x80\x9ca nonprofit, public-private development cor\xc2\xad\nporation\xe2\x80\x9d could be created to manage the redevelopment of the Union Station\ncomplex. S. Rep. No. 269, 97th Cong., 1st Sess. 13 (1981), reprinted in 1981\nU.S.C.C.A.N. 2711,2723. USRC \xe2\x80\x9cwas formed to assist the Secretary in achiev\xc2\xad\ning the objectives of the Redevelopment Act and generally to facilitate the rede\xc2\xad\nvelopment o f the Union Station complex.\xe2\x80\x9d Union Station Redevelopment Coop\xc2\xad\nerative Agreement at 3 (Nov. 1983) (\xe2\x80\x9cUnion Station Agreement\xe2\x80\x9d). In particular,\nUSRC\xe2\x80\x99s responsibilities include selecting and monitoring the developer of the\nstation complex, ensuring that adequate provision is afforded Amtrak for its cur\xc2\xad\nrent and future use of the station, and working with other interested parties in the\nredevelopment of the station. Id. at 6-7. Although these functions presumably\ncould be handled by private enterprise without federal control, that is not an ad\xc2\xad\nequate basis for finding that an entity is not an agency of the United States. See\nRauscher, 789 F.2d at 315. See also Schlei Memorandum at 5 (FNMA is an\nagency of the United States even though it is empowered \xe2\x80\x9cto engage in its busi\xc2\xad\nness activities in a manner comparable to that of private institutions engaged in\nsimilar activities\xe2\x80\x9d). In this case, Congress assigned USRC\xe2\x80\x99s responsibilities to\nthe Department of Transportation. USRC is simply the vehicle created by that\nDepartment to accomplish the congressional mandate.\nUSRC is financed by several sources. Amtrak is obligated to provide up to sev\xc2\xad\nenty million dollars to USRC for the redevelopment project. Union Station Agree\xc2\xad\n\n2\nTerry construed the meaning of \xe2\x80\x9cagency\xe2\x80\x9d under 28 U.S.C. \xc2\xa7 451, which defines \xe2\x80\x9cagency\xe2\x80\x9d in a manner similar\nto the definition in 18 U.S.C. \xc2\xa7 6. Moreover, the historical and revisions notes o f section 451 state that \xe2\x80\x9cagency\xe2\x80\x9d in\nsection 451 conform s to the definition of \xe2\x80\x9c agency\xe2\x80\x9d in 18 U.S.C. \xc2\xa7 6. Accordingly, the court in Terry used the dis\xc2\xad\ncussion o f \xe2\x80\x9cproprietary corporation" in the revisers\xe2\x80\x99 notes to 18 U.S.C. \xc2\xa7 6 to determine if Ginnie Mae should be\nheld an agency o f the United States for the\'purposes o f determining federal jurisdiction See 608 F.2d at 618-20\n(G innie Mae is an agency because of the control HUD exercises over Ginnie Mae, the intent o f Congress to retain\ngovernm ental control over the federal housing program, and the funds provided by\xe2\x80\x94 and profits returned by Gin\xc2\xad\nnie M ae to\xe2\x80\x94 the federal government). See a lso Rauscher Pierce Refsnes, Inc. v. FDIC, 789 F.2d 313, 314-16 (5th\nCir. 1986) (FDIC is an agency because of the \xe2\x80\x9c important governmental functions" performed by the FDIC, the pres\xc2\xad\nence o f the Comptroller General and two presidential appointees on the three member board, the authority to issue\nregulations, and the control by Treasury over the money o f the FDIC); LPR Land Holdings v. Federal Land Bank,\n651 F. Supp. 2 8 7 ,2 9 0 (E.D. Mich. 1987) (a federal land bank is not an agency because being chartered by and reg\xc2\xad\nulated by the federal government is not sufficient to make an entity an agency of the United States).\nA lthough title 28 incorporates the definition o f agency in title 18, the converse is not true. It is possible that\ndifferent considerations influence whether an agency should be considered part of the United States for jurisdic\xc2\xad\ntional purposes and w hether an agency is part of the United States for the purpose of defining a criminal offense.\nThus, cases decided under title 28 are not dispositive under title 18, but they are useful in examining the factors that\ncourts have found relevant to deciding w hether an entity is an \xe2\x80\x9cagency\xe2\x80\x9d o f the United States.\n\n86\n\n\x0cment at 8.3 The Federal Railroad Administration (\xe2\x80\x9cFRA\xe2\x80\x9d), an agency within the\nDepartment of Transportation, was required to provide $340,000 for the opera\xc2\xad\ntion and maintenance of Union Station between October 1, 1983 and September\n30, 1984; the FRA has a continuing obligation to provide financial assistance to\nUSRC to the extent that its funds are available for this purpose. Id. at 4\xe2\x80\x945,9. The\nDistrict of Columbia contributes federal highway funds to USRC. Also, any in\xc2\xad\ncome that USRC earns in the course of its work is to be used \xe2\x80\x9cto further project\nobjectives.\xe2\x80\x9d Id. at 11. USRC has no obligation to seek funds from any source. Id.\nat 7.\nUSRC is managed by a five member board of directors. Two members\xe2\x80\x94 the\nSecretary of Transportation and the Federal Railroad Administrator\xe2\x80\x94 are offi\xc2\xad\ncials of the federal government. A third member\xe2\x80\x94 the Mayor of the District of\nColumbia\xe2\x80\x94 has the status of a federal official under the conflicts laws. Another\nmember\xe2\x80\x94the president of Amtrak\xe2\x80\x94represents a mixed-ownership government\ncorporation. See supra note 3. The president of the Federal City Council repre\xc2\xad\nsents a private entity.4 The day-to-day operations of USRC are handled by a pres\xc2\xad\nident, a vice-president, two full-time employees, and one part-time employee, al\xc2\xad\nthough the members of the board of directors also play significant, albeit varying,\nroles in this regard.5\nWhile the question seems to us a close one, on balance we believe that the\nfunctions, financing, management and control of USRC make that entity an\n\xe2\x80\x9cagency of the United States\xe2\x80\x9d under 18 U.S.C. \xc2\xa7 6, and that accordingly it should\nbe considered \xe2\x80\x9cthe United States\xe2\x80\x9d under 18 U.S.C. \xc2\xa7 207(a). Our conclusion in\nthis regard is reinforced by the purposes of section 207(a) itself. Several justifi\xc2\xad\ncations for the restrictions imposed by that section on post-government employ\xc2\xad\nment have been advanced: the need to prevent the use of confidential govern\xc2\xad\nment information for the benefit of a private party, the unseemliness of switching\nsides, the fear of undue influence over former colleagues, avoidance of pressure\non government employees who anticipate future private employment, and pro\xc2\xad\ntection from the appearance of a conflict of interest. See, e.g., Bayless Manning,\nFederal Conflict of Interest Law 179-81 (1964) (reviewing the legislative his\xc2\xad\ntory of the predecessor statute to section 207). See also ABA Comm, on Ethics\nand Professional Responsibility, Formal Op. 342 (1975). These same dangers are\n\n3 Amtrak is a \xe2\x80\x9cmixed-ownership Government corporation.\xe2\x80\x9d 31 U.S.C \xc2\xa7 910l(2)(A ). It is not \xe2\x80\x9can agency o r es\xc2\xad\ntablishment o f the United States Government.\xe2\x80\x9d 45 U S C. \xc2\xa7\xc2\xa7 541, 581(b)(1). Nonetheless, we have advised that\nAmtrak is an \xe2\x80\x9cagency\xe2\x80\x9d for the purposes o f the Privacy Act, 5 U.S.C. \xc2\xa7 552a, because Amtrak is a \xe2\x80\x9cGovernment\ncontrolled corporation\xe2\x80\x9d under 5 U.S.C. \xc2\xa7 552(e). Letter for William M. Nichols, General Counsel, Office of M an\xc2\xad\nagement and Budget, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel (Oct. 7, 1976)\nFurther, more than one-third o f Amtrak\xe2\x80\x99s total expenses for fiscal year 1987 was funded by congressional appro\xc2\xad\npriations. See H R. Rep No. 202, 100th Cong , 1st Sess. 101-02 (1987)\n4 The Federal City Council is a civic organization comprised o f prominent W ashington residents It essentially\noperates as a booster group for the city.\n5 The General Counsel o f the FRA has daily contact with USRC and is involved in most of the substantive de\xc2\xad\ncisions made by the corporation The Federal Railroad Administrator has perhaps weekly contact with the USRC.\nThe other members o f the board o f directors have less frequent contact with the corporation.\n\n87\n\n\x0cnot posed when a government employee moves \xe2\x80\x9cfrom one salaried government\nposition to another.\xe2\x80\x9d Id. at 6. Thus, for example, it would be entirely permissible\nfor an individual to work on the redevelopment of Union Station as an employee\nof the District of Columbia and then work on the same matter as an employee of\nthe Department of Transportation. We believe that the nature of USRC, as the\nentity performing the statutory responsibilities of the Department of Transporta\xc2\xad\ntion for the Union Station project, under the guidance of government officials\nand with the assistance of federal funding, suggests that the same result should\nbe reached when an individual moves from employment with the District of Co\xc2\xad\nlumbia to employment with USRC.\nIn sum, we believe that the exclusively federal functions of USRC, and the sig\xc2\xad\nnificant control over its operations exercised by the federal government, warrant\nthe conclusion that USRC should be considered \xe2\x80\x9cthe United States\xe2\x80\x9d for the pur\xc2\xad\nposes of 18 U.S.C. \xc2\xa7 207(a). Accordingly, the prohibitions of that section do not\napply where a former employee of the District of Columbia accepts employment\nwith USRC.\nM\n\nic h a e l\n\nC\n\na r v in\n\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n88\n\n\x0c'


b'Indirect Aid to Faith-Based Organizations Under the\nCharitable Choice Provisions of the\nCommunity Solutions Act of 2001\nThe Establishment Clause of the First Amendment does not necessitate that the charitable choice\nprovisions of H.R. 7, the Community Solutions Act, require faith-based organizations receiving\nindirect payments of federal money to segregate such funds into an account separate from the\norganizations\xe2\x80\x99 general operating accounts.\n\nJune 22, 2001\n\nMEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT\nYou have asked for our opinion whether the charitable choice provisions set\nforth in section 1994A of H.R. 7, the Community Solutions Act (\xe2\x80\x9cthe Act\xe2\x80\x9d), must,\nconsistent with the Establishment Clause, require faith-based organizations\n(\xe2\x80\x9cFBOs\xe2\x80\x9d) receiving indirect payments of federal money to segregate such funds\ninto an account separate from the FBO\xe2\x80\x99s general operating account. We conclude\nthat the Establishment Clause does not require such segregation to preserve the\nAct\xe2\x80\x99s constitutionality.\nThe Supreme Court distinguishes, as a threshold matter, between direct and\nindirect aid. 1 For any given program, charitable choice allows, at the government\xe2\x80\x99s\noption, for direct or indirect forms of funding, or both. 2 Indirect aid is where the\nultimate beneficiary is given a coupon or voucher, or some other means of\npayment, such that he or she has the power to select from among qualified\nproviders at which the coupon or voucher may be \xe2\x80\x9credeemed\xe2\x80\x9d and the services\nrendered. In a series of cases, and in more recent commentary contrasting indirect\naid with direct aid cases, the Supreme Court has consistently upheld the constitutionality of mechanisms providing for indirect means of aid distributed without\nregard to religion. 3\n\n1\nSee, e.g., Mitchell v. Helms, 530 U.S. 793, 841-44 (2000) (O\xe2\x80\x99Connor, J., concurring in the judgment).\n2\nCharitable choice typically provides for both direct and indirect forms of aid to FBOs. See, e.g.,\n42 U.S.C. \xc2\xa7 604a(a)(1) (Supp. II 1996). This is most apparent in H.R. 7 by comparing the subparts of\nsection 1994A(g).\n3\nSee Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (providing special education\nservices to Catholic high school student not prohibited by Establishment Clause); Witters v. Washington Dep\xe2\x80\x99t of Servs. for the Blind, 474 U.S. 481 (1986) (upholding a state vocational rehabilitation grant\nto disabled student who elected to use the grant to obtain training as a youth pastor); Mueller v. Allen,\n463 U.S. 388 (1983) (upholding a state income tax deduction for parents paying school tuition at\nreligious schools); see also Rosenberger v. Rector and Visitors, 515 U.S. 819, 878-79 (1995) (Souter,\nJ., dissenting) (distinguishing cases upholding indirect funding to individuals, admitted to be the law of\nthe Court, from direct funding to religious organizations).\n\n127\n\n227-329 VOL_25_PROOF.pdf 137\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nAs Justice O\xe2\x80\x99Connor recently noted in Mitchell v. Helms, the Supreme Court\nhas approved the indirect payment of federal money to religious organizations for\nservices so long as \xe2\x80\x9c\xe2\x80\x98[a]ny aid . . . that ultimately flows to religious institutions\ndoes so only as a result of the genuinely independent and private choices of aid\nrecipients.\xe2\x80\x99\xe2\x80\x9d Mitchell v. Helms, 530 U.S. at 841 (O\xe2\x80\x99Connor, J., concurring in\njudgment) (ellipses in original; citation omitted). In the quoted passage, Justice\nO\xe2\x80\x99Connor explained why the Court declined to find a violation of the Establishment Clause in Witters v. Washington Department of Services for the Blind, 474\nU.S. 481 (1986) (holding plaintiff could use vocational training grant to become a\nminister), and Mueller v. Allen, 463 U.S. 388 (1983) (upholding state tax deduction for educational expenses such as parochial school tuition). Indeed, because\nindirect aid to an FBO is \xe2\x80\x9cakin to the government issuing a paycheck to an\nemployee who, in turn, donates a portion of that check to a religious institution,\xe2\x80\x9d\nMitchell v. Helms, 530 U.S. at 841, such aid is permissible under the Establishment Clause and need not be segregated into a separate account. 4\nSHELDON BRADSHAW\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n4\n\nThe Child Care and Development Block Grant Program of 1990, see 42 U.S.C. \xc2\xa7\xc2\xa7 9858-9858q\n(1994), for example, has been providing low-income parents indirect aid for child care via \xe2\x80\x9ccertificates\xe2\x80\x9d redeemable at, inter alia, churches and other FBOs. The Act has never been so much as even\nchallenged in the courts as unconstitutional.\n\n128\n\n227-329 VOL_25_PROOF.pdf 138\n\n10/22/12 11:10 AM\n\n\x0c'


b"Constitutionality of Statute Imposing Death Penalty for\nAttempted Assassination of the President\nU nder applicable Supreme C ourt precedent, a statute making it a capital offense to\nattem pt to assassinate the President would be unlikely to survive constitutional chal\xc2\xad\nlenge, unless it were narrowly drawn to include only cases in which the defendant\xe2\x80\x99s\nintent was unambiguous and the attempt nearly successful.\nBoth historical precedent and contem porary practice in this and other countries suggest\nthat death would ordinarily be regarded by a court as an excessive punishment for the\ncrime of attempted murder. O n the other hand, the unique position of the President in\nour constitutional system, coupled with the threat to the national security which an\nassault on his person would constitute, may warrant subjecting the crime of attempted\nassassination of the President to the death penalty\n\nApril 30, 1981\nMEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY\nGENERAL, CRIMINAL DIVISION\nThis responds to your request for the views of this Office with\nrespect to the constitutionality of a proposed statute imposing the death\npenalty for the offense of attempted assassination of the President.1 For\nthe reasons that follow, we believe that such a statute, if drafted\nnarrowly and with extreme care, might well be upheld by the Supreme\nCourt. We must caution, however, that the question is an extremely\nclose and difficult one on which the Supreme Court has given little\nguidance, and that the outcome of a challenge to the law may well\ndepend on the particular factual context to which it is applied.\nI. Background\nPrior to considering the issues raised, it may be helpful briefly to\nreview recent Supreme Court decisions on capital punishment. In\nFurman v. Georgia, 408 U.S. 238 (1972), a five-Justice majority ruled in\na per curiam opinion that the imposition of the death penalty in the\n1A variety of federal statutes currently impose the death penalty See 18 U.S C. \xc2\xa7 34 (destruction of\nm otor vehicles or m otor vehicle facilities where death results); 18 US.C. \xc2\xa7351 (assassination or\nkidnapping o f a Member of Congress); 18 U S.C. \xc2\xa7 794 (gathering or delivering defense information to\naid a foreign government); 18 U S .C . \xc2\xa7 1111 (murder in the first degree within the special maritime\nand territorial jurisdiction of the United States), 18 U.S.C. \xc2\xa7 1716 (causing death of another by mailing\ninjurious articles); 18 U.S.C. \xc2\xa7 1751 (m urder or kidnapping of a President or Vice President); 18 U S C.\n\xc2\xa72031 (rape within the special maritime or territorial jurisdiction of the United States), 18 U.S.C\n\xc2\xa7 2381 (treason); 49 U.S.C. \xc2\xa7 1472(i) (aircraft piracy w here death results).\n\n116\n\n\x0ccases before the Court would constitute cruel and unusual punishment\nin violation of the Eighth and Fourteenth Amendments.2 Two of those\nJustices were of the opinion that capital punishment is per se unconstitu\xc2\xad\ntional.3 The remaining three Justices did not reach the question\nwhether the death penalty is unconstitutional in all circumstances. Jus\xc2\xad\ntice Douglas concluded that the discretionary statutes in question were\n\xe2\x80\x9cpregnant with discrimination\xe2\x80\x9d in their operation and thus violated the\nEqual Protection Clause of the Fourteenth Amendment.4 Justice Stew\xc2\xad\nart objected to the penalty being applied \xe2\x80\x9cso wantonly and so freak\xc2\xad\nishly.\xe2\x80\x9d 5 Justice White concluded that as the statutes were administered,\nthey violated the Eighth Amendment because the penalty was so infre\xc2\xad\nquently imposed that the threat of execution was too attenuated to be\nof substantial service to criminal justice.6\nIn Gregg v. Georgia, 428 U.S. 153 (1976), the Court reviewed the\nGeorgia statute enacted in response to Furman and found it sufficient to\novercome Eighth Amendment objections. 428 U.S. at 207.7 Justices\nStewart, Powell, and Stevens found four features of the statute to be\nparticularly important: (1) the sentencer\xe2\x80\x99s attention was drawn to the\nparticularized circumstances of the crime and of the defendant by\nreference to aggravating and mitigating factors; (2) the discretion of the\nsentencer was controlled by clear and objective standards; (3) the\nsentencer was provided with all the relevant evidence during a separate\nsentencing hearing, while prejudice to the defendant was avoided by\nrestricting information on aggravating circumstances to that comport\xc2\xad\ning with the rules of evidence; and (4) there was a system of appellate\nreview of the sentence to guard against arbitrariness, excessiveness, and\ndisproportionality. In a separate opinion, Chief Justice Burger and Jus\xc2\xad\ntices White and Rehnquist concurred in the judgment. 428 U.S. at 207.\nIn Lockett v. Ohio, 438 U.S. 586 (1978) and the companion case, Bell\nv. Ohio, 438 U.S. 637 (1978), the Court again considered the constitu\xc2\xad\ntionality of a state statute enacted in response to Furman. The Ohio\nstatute at issue also set forth the aggravating and mitigating factors to\nbe considered in the imposition of the death penalty. If the case went to\ntrial, however, the law provided that only three mitigating factors\ncould be considered. Without a finding of one of these factors, and with\na finding of an aggravating factor, imposition of the death penalty was\nmandatory. While the Court by a vote of seven to one found the\nimposition of the death penalty in this case to be unconstitutional, again\nthere was no majority opinion.\n1Furman v Georgia. 408 U.S. 238. 239-40(1972).\n3408 U.S. at 257 (Brennan, J., concurring), 408 U.S. at 314 (Marshall, J., concurring)\n4408 U.S. at 256-57\n*408 U S . at 310.\n6408 U.S. at 312-13.\n1In companion cases, Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v Louisiana, 428\nU.S 325 (1976), a plurality ruled that imposition of mandatory death sentences violated the prohibition\nagainst cruel and unusual punishment under the Eighth and Fourteenth Amendments.\n\n117\n\n\x0cChief Justice Burger and Justices Stewart, Powell, and Stevens based\ntheir decision on the conclusion that \xe2\x80\x9cthe Eighth and Fourteenth\nAmendments require that the sentencer, in all but the rarest kind of\ncapital case, not be precluded from considering as a mitigating factor,\nany aspect of a defendant\xe2\x80\x99s character or record and any of the circum\xc2\xad\nstances of the offense that the defendant proffers as a basis for a\nsentence less than death.\xe2\x80\x9d 8 Justice Marshall adhered to his view that\nthe death penalty is unconstitutional in all circumstances. Justice\nBlackmun found that the application of the penalty to an aider and\nabettor without regard to a specific mens rea in relation to the killing\nwould be cruel and unusual. He also found that the statute violated the\nrule set down in United States v. Jackson, 390 U.S. 570 (1968), in that it\npermitted a judge who accepted a guilty plea to avoid imposing the\ndeath penalty \xe2\x80\x9cin the interests of justice,\xe2\x80\x9d but authorized consideration\nof only three mitigating factors if a defendant asserted his constitutional\nright to a trial.9 Finally, Justice White objected to the Ohio statute\nbecause it included an aider and abettor within the scope of the death\npenalty without a finding that the defendant \xe2\x80\x9cengaged in conduct with\nthe conscious purpose of producing death.\xe2\x80\x9d 10\nThe Court has also held that, in addition to requiring certain proce\xc2\xad\ndural safeguards for imposition of the death penalty, the Eighth\nAmendment bars the death penalty if it is excessive in relation to the\ncrime committed. Coker v. Georgia, 433 U.S. 584 (1977). In Coker,\ndiscussed in more detail below, the Court concluded that the death\nsentence for rape of an adult woman when death did not result was\ndisproportionate to the crime. 433 U.S. at 592.\nRecently, the Court again reviewed a death sentence imposed under\nthe Georgia statute. In Godfrey v. Georgia, 446 U.S. 420 (1980), the\nCourt considered whether the Georgia Supreme Court had adopted\nsuch a broad and vague construction of one of the statutory aggravat\xc2\xad\ning circumstances as to violate the Eighth and Fourteenth Amend\xc2\xad\nments. The statute provided that a person could be sentenced to death\nif the offense was \xe2\x80\x9coutrageously or wantonly vile, horrible or inhuman\nin that it involved torture, depravity of mind, or an aggravated battery\nto the victim.\xe2\x80\x9d Ga. Code Ann. \xc2\xa7 27-2534.1(b)(7) (Supp. 1975). In the\nplurality opinion written by Justice Stewart, joined by Justices\nBlackmun, Powell, and Stevens, the Court ruled that in upholding\nGodfrey\xe2\x80\x99s sentence, the Georgia Supreme Court did not apply a consti\xc2\xad\ntutional construction of (b)(7). Justice Stewart stated: \xe2\x80\x9cThere is no\nprincipled way to distinguish this case, in which the death penalty was\nimposed, from the many cases in which it was not.\xe2\x80\x9d 446 U.S. at 433. In\na concurring opinion, Justice Marshall, joined by Justice Brennan, ad\xc2\xad\n8Lockett v. Ohio, 438 U.S. 586, 604 (1978).\n9438 U.S. at 613-14, 618-19.\n' \xe2\x80\x9c438 U.S. at 627-28.\n\n118\n\n\x0chered to his view that the dealth penalty is unconstitutional in all cases,\nand, in addition, agreed with the plurality that the Georgia Supreme\nCourt\xe2\x80\x99s construction of (b)(7) in this case was unconstitutionally vague.\nHe suggested that the sentencing procedures of the type approved in\nGregg are doomed to failure because the criminal system is incapable of\nguaranteeing objectivity and evenhandedness in application of the death\npenalty. Chief Justice Burger and Justices Rehnquist and White dis\xc2\xad\nsented, warning that the Court should not put itself in the role of\nsecond-guessing state judges and juries.\nII. Constitutionality of the Proposed Statute\nThe Court\xe2\x80\x99s ruling in Coker, that the death penalty is unconstitution\xc2\xad\nally excessive in relation to the crime of rape of an adult woman, raises\nthe question whether the death penalty is excessive in relation to any\ncrime in which death does not result.11\nIn Coker, Justice White, speaking for the plurality, characterized the\ntest first enunciated in Gregg as: (1) whether the sentence makes a\nmeasurable contribution to acceptable goals of punishment; and (2)\nwhether the sentence is grossly out of proportion to the crime. 433 U.S.\nat 592. The plurality examined the position taken by those states which\nhad reinstated the death penalty after Furman and concluded that the\nmodem approach was not to impose the death penalty for rape. It then\nbrought its own judgment to bear on the question of the acceptability\nof the death penalty under the Eighth Amendment. It reasoned:\nRape is without doubt deserving of serious punishment;\nbut in terms of moral depravity and of injury to the\nperson and to the public, it does not compare with\nmurder, which does involve the unjustified taking of\nhuman life. Although it may be accompanied by another\ncrime, rape by definition does not include the death o f or\neven the serious injury to another person. The murderer\nkills; the rapist, if no more than that, does not. Life is\nover for the victim of the murderer; for the rape victim,\nlife may not be nearly so happy as it was, but it is not\nover and normally is not beyond repair. We have the\nabiding conviction that the death penalty, which \xe2\x80\x9cis\nunique in its severity and irrevocability,\xe2\x80\x9d Gregg v. Geor\xc2\xad\ngia, 428 U.S. at 187, is an excessive penalty for the rapist\nwho, as such, does not take human life.\n11 In his dissent in Coker, Chief Justice Burger wrote: \xe2\x80\x9cThe clear implication of today\xe2\x80\x99s holding\nappears to be that the death penalty may be properly imposed only as to crimes resulting in death of\nthe victim. This casts serious doubt upon the constitutional validity of statutes imposing the death\npenalty for a variety o f conduct which, though dangerous, may not necessarily result in any immediate\ndeath, e.g., treason, airplane hijacking, and kidnapping.\xe2\x80\x9d Coker v. Georgia, 433 U.S. 584, 621 (1978).\n\n119\n\n\x0c433 U.S. at 598 (emphasis added). The fact that one of the statutory\naggravating circumstances had to be found before the death penalty\ncould be imposed did not convince the plurality that the penalty was\nnot excessive. It wrote that the aggravating circumstances \xe2\x80\x9cdo not\nchange the fact that the instant crime being punished is a rape not\ninvolving the taking of life.\xe2\x80\x9d 433 U.S. at 599.\nJustices Brennan and Marshall concurred separately, reiterating their\nviews that the death penalty is unconstitutional per se. Justice Powell\nconcurred in the judgment that the death penalty was not appropriate\nin this case but dissented from that portion of the plurality opinion\nwhich suggested that the death penalty for rape would be excessive in\nall cases. Chief Justice Burger and Justice Rehnquist joined in dissent.\nUnder the analysis suggested in Coker, in order to determine whether\nthe imposition of the death penalty is constitutional with respect to the\noffense of attempted assassination of the President, one must determine,\nfirst, whether it makes a measurable contribution to acceptable goals of\npunishment and, second, whether it is excessive in proportion to the\ncrime. While there is as yet no final resolution of the debate over the\ndeterrent effect of the death penalty, we believe that a court would\ngive deference to the legislative judgment on the deterrent effect as\nlong as this judgment appears reasonable.\nThe second part of the test, whether the punishment is excessive with\nrespect to the crime, is more difficult to apply. In Coker, the Court\nlooked to the consensus among the states and the practice of juries in\nmodern times, as well as to historic practice, to assess the relationship\nbetween the penalty and the offense. This inquiry is more difficult with\nrespect to a crime as rare as attempted assassination of the President.\nWe approach the issue by considering five factors that bear on the\ninquiry mandated by Coker. Those factors are: (1) the general definition\nof \xe2\x80\x9cattempt\xe2\x80\x9d; (2) the historical approach to \xe2\x80\x9cattempt\xe2\x80\x9d crimes, especially\nmurder; (3) the federal and state practice with respect to attempted\nmurder of the President; (4) the international treatment of attempted\nassassination of national leaders; and (5) the special position of the\nPresident of the United States.\nA. Definition o f attempt. We do not have before us a definition of the\nkinds of attempts on the life of the President to which the death penalty\nwould be applied. A wide range of conduct might constitute an at\xc2\xad\ntempted murder. Different mental states and different conduct, marking\nvarying degrees of progress toward the completion of the crime, might\nbe comprehended within the definition. See S. Kadish & M. Paulsen,\nCriminal Law and its Processes: Cases and Materials 368-410 (1969).\nUnder the Model Penal Code, for example, \xe2\x80\x9cA person is guilty of an\nattempt to commit a crime if, acting with the kind of culpability\notherwise required for commission of the crime, he:\n120\n\n\x0c(a) purposely engages in conduct which would consti\xc2\xad\ntute the crime if the attendant circumstances were as he\nbelieves them to be; or\n(b) when causing a particular result is an element of the\ncrime, does . . . anything with the purpose of causing or\nwith the belief that it will cause such result, without\nfurther conduct on his part; or\n(c) purposely does . . . anything which, under the cir\xc2\xad\ncumstances as he believes them to be, is an act or omis\xc2\xad\nsion constituting a substantial step in a course of conduct\nplanned to culminate in his commission of the crime.\nModel Penal Code, Proposed Official Draft \xc2\xa7 5.01(1), (1962). To consti\xc2\xad\ntute a \xe2\x80\x9csubstantial step\xe2\x80\x9d under \xc2\xa7 (l)(c), the step must be \xe2\x80\x9cstrongly\ncorroborative of the actor\xe2\x80\x99s criminal purpose.\xe2\x80\x9d\nIn our view, a statute making it a capital offense to attempt to\nassassinate the President will be much more likely to be held constitu\xc2\xad\ntional if it covers a limited category of situations in which the attempt\nhas nearly succeeded and the defendant\xe2\x80\x99s intent is unmistakable. See\nLockett v. Ohio, U.S. 438 at 627-28 (White, J., concurring) (intent to\nmurder must be shown to justify imposition of death sentence). For this\nreason, we believe that the Court would be much more likely to uphold\nthe application of the death penalty to conduct falling within categories\n(a) and (b) above than (c). At the same time, we do not exclude the\npossibility that conduct falling within (a) or (b) might itself not be\nsubject to capital punishment under the Eighth Amendment, especially\nif the crime was not in fact nearly completed. For purposes of the\nfollowing discussion, we assume that any statute to be enacted by\nCongress would be narrowly drawn and limited to cases of unambig\xc2\xad\nuous motive and near-completion of the assassination effort.\nB. Attempted murder in general. Anglo-American law has traditionally\nsubjected crimes of attempt, including attempted murder, to a lower\npenalty than the completed crime. At common law, all attempts were\nclassified as misdemeanors. W. Clark & W. Marshall, A Treatise on the\nLaw of Crimes 178 (2d ed. 1905). Under current statutory provisions,\nan attempt is ordinarily punishable by a reduced factor of the punish\xc2\xad\nment for the completed crime. S. Kadish & M. Paulsen, supra, at 368\n(1969). A few states make the punishment for the completed crime the\nsame as for attempts, but even those states reduce an attempt to commit\na capital offense to a term of imprisonment. Id. Under the Model Penal\nCode, an attempt is generally a crime of the same grade and degree as\nthe substantive offense, but an attempt to commit a capital crime or a\nfirst-degree felony is a felony of the second degree. Model Penal Code\n\xc2\xa7 5.05(1) (Proposed Official Draft 1962). Our review indicates that none\nof the states now having capital punishment laws classifies attempted\nmurder as an offense subject to the death penalty.\n121\n\n\x0cThis pattern apparently reflects a deeply seated social conception that\nattempted crimes should not be punished as severely as substantive\noffenses. That conception has been said to result from a number of\nfactors. First, if the purpose of punishment is retribution, that purpose\npoints toward a less severe sanction for attempts. See Waite, The\nPrevention of Repeated Crime 8-9 (1943). Second, if the act has not\nbeen carried out, there is inevitably some room for uncertainty as to the\nactor\xe2\x80\x99s true motives. Finally, it has been doubted whether the threat of\npunishment for attempts will add significantly to the deterrent effect of\nthe sanction threatened for the substantive offense which, by hypothe\xc2\xad\nsis, the actor has ignored. Model Penal Code, comments to \xc2\xa7 5.05\n(Tent. Draft No. 10, 1950).\nThese factors, when considered in conjunction with the historical\npractice of penalizing attempts less severely than substantive offenses,\nsuggest that, under Coker, a capital punishment law for attempted\nmurder may well be invalidated. The objective factors relied on by the\nCourt indicate that the retributive and deterrent goals of punishment\npoint toward a more severe penalty for murder than for attempted\nmurder.\nIt should be noted, however, that attempted murder of the head of\nstate was punished quite severely at common law. In England, an\nattempt on the life of the King was regarded as a form of common law\ntreason and thus punishable by death. W. Burdick, The Law of Crime,\n\xc2\xa7231 (1946); R. Perkins, Criminal Law 441 (1969); W. Clark & W.\nMarshall, supra, at 7. The Statute of Treasons, enacted in 1351, included\na manifested desire for the death of the King as an act of high treason.\nThe American Constitution, however, contains provisions designed to\nlimit the definition of the crime, stating, \xe2\x80\x9cTreason against the United\nStates, shall consist only in levying War against them, or in adhering to\ntheir Enemies, giving them Aid and Comfort.\xe2\x80\x9d U.S. Const., Art. Ill,\n\xc2\xa7 3. The offense of attempting to assassinate the President has not, to\nour knowledge, been thought to fall within this language.\nC. Historical practice in America. The first federal statute making it a\nfederal crime to assassinate or to attempt to assassinate the President\nwas passed in 1965. 18 U.S.C. 1751. Under that provision, the maximum\nsentence for an attempt on the life of the President is life imprisonment.\nAccordingly, the federal government has not, as an historical matter,\nmade it a capital offense to attempt to assassinate the President. This\nfactor would be cited to support the argument that a death penalty for\nsuch an attempt is unconstitutional under the Eighth Amendment. It is\nnot, however, dispositive. Moreover, since no provision of federal law\nprior to 1965 governed assassination of the President, Congress did not\nbefore that time conclude that a person convicted of an attempted\nassassination should not be subject to the death penalty.\n122\n\n\x0cSince no federal law governed assassination or attempted assassina\xc2\xad\ntion of the President before 1965, several states enacted provisions on\nthe subject. Our preliminary 12 research indicates, however, that very\nfew states made it a capital offense to attempt to assassinate the Presi\xc2\xad\ndent. Only Connecticut, Ohio, and probably New Jersey had such laws\nin 1967, before the Furman decision. H. Bedau, The Death Penalty in\nAmerica 48-52 (rev. ed. 1967). There is, therefore, only minor support\nfor the position that, in the United States, attempted assassination of the\nPresident has been regarded as a crime for which the death penalty is\nappropriate.\nD. International practice. The Economic and Social Council of the\nUnited Nations undertakes a report on the capital punishment laws of\nits members every five years. The last report, completed in 1980,\ncontains somewhat vague and incomplete data compiled on the basis of\nthe replies from 74 member states (of a total current membership of\n154). Of the countries responding, only nine stated with clarity that\nthose committing the offense of attempted assassination of the head of\nstate were subject to capital punishment: Morocco, Tunisia, Indonesia,\nBelgium, Mozambique, Philippines, Thailand, Nepal, and France.13 If\ncorrect, these data suggest that a small percentage of the nations with\ncapital punishment laws apply those laws to attempts on the head of\nstate. Although not binding on the Court\xe2\x80\x99s interpretation of the U.S.\nConstitution, that fact would count as a factor in determining whether\nan attempted assassination of the President may be subjected to capital\npunishment, for it suggests a general international position that a person\nwho has only attempted to assassinate a head of state should not be\nexecuted.\nE. Nature o f crime. Finally, we consider the nature of the crime\ninvolved here: An attempted assassination of the President. As the most\npowerful and visible of the Nation\xe2\x80\x99s leaders, the President maintains a\nunique position within the federal government. As Commander-in-Chief\nof the Armed Forces, he discharges unique responsibilities for the\nsecurity of the country. As head of the Executive Branch, he is en\xc2\xad\ntrusted with the authority of coordinating and executing all laws of the\nUnited States. For these reasons, an assault on the President threatens\nthe national security in a distinctive fashion. Even if the attempt is\nunsuccessful, it may produce a national sense of embarrassment, fear, or\ntrauma. An attempt on the life of the President is, as a result, different\nin kind, not merely in degree, from an attempt on the life of any other\n12Since the available historical materials are generally vague, we cannot exclude the possibility that\nour data is incomplete.\n13 Numerous others, however, included treason as a capital offense. If treason were defined to\ninclude attempted assassination of the head of state, the number would be significantly higher. That\ninformation, however, is not currently available. U N. Economic and Social Council, Capital Punish\xe2\x80\x99\nment: Report o f the Secretary General, para. 34, U.N. Doc E /1980/9 (1980); para. 4, U.N. Doc E /\n! 980/9/A dd 1 (1980)\n\n123\n\n\x0cpublic or private citizen. In this respect, the President is a \xe2\x80\x9clegitimate\nclass of one.\xe2\x80\x9d Nixon v. Administrator o f General Services, 433 U.S. 425,\n472 (1977).\nWe believe that the unique nature of the office of the President of the\nUnited States furnishes support for the view that an attempted assassi\xc2\xad\nnation of the President can be subjected to the death penalty. More\nthan any other attempt crime, an attempt on the life of the President\ncauses injury to the country even if it is unsuccessful. There is a\nsubstantial governmental interest in avoiding the national injury that is\nproduced simply by virtue of an attempt on the President\xe2\x80\x99s life.\nIII. Conclusion\nThe foregoing discussion suggests that, under Coker, a statute making\nit a capital offense to attempt to assassinate the President would raise\nquite serious constitutional questions. Throughout American history,\nattempt crimes have been punished less severely than substantive of\xc2\xad\nfenses. Although an assassination attempt was within the definition of\ntreason in England, it has not been so regarded in the United States. No\nAmerican jurisdiction currently applies the death penalty to an at\xc2\xad\ntempted murder. The only federal statute governing attempted assassi\xc2\xad\nnation of the President was enacted in 1965 and carries a maximum\nsentence of life imprisonment. On the basis of the evidence now avail\xc2\xad\nable to us, it appears that only a handful o f states applied the death\npenalty to attempt on the life of the President before Furman. Finally,\nalthough the evidence is somewhat vague, it seems that relatively few\ncountries, even among those that retain the death penalty, punish with\ndeath the offense of attempting to assassinate the head of state.\nOn the other hand, such an attempt is undoubtedly a grave offense\nand amounts to an assault on the security o f the Nation; this indicates\nthat a narrowly drawn statute might be upheld against an attack on the\nbasis of Coker.\nTaken together, these factors suggest that a broadly drawn death\npenalty for attempts on the life of the President would be unlikely to\nsurvive constitutional challenge. Any such statute should be narrowly\ndrafted to include cases in which the defendant\xe2\x80\x99s intent was unambig\xc2\xad\nuous and the crime was almost completed. Such a statute would be\nmore likely to be upheld if an element of the crime was the actual\ncommission of some bodily injury to the President.\nWe believe that, if a capital punishment statute were drafted to\ninclude such injury as part of the offense, or possibly even if it were\notherwise narrowly confined to nearly successful attempts, the statute\nmight well be found constitutional. The fact that England and a number\nof other countries have historically applied the death penalty to an\nattempted murder of the head of state, together with the distinctive\nresponsibilities of the President in our constitutional scheme, do, in our\n124\n\n\x0cview, provide support for a conclusion that the death penalty for an\nattempt on the life of the President is not disproportionate within the\nmeaning of Coker. We must caution, however, that the constitutional\nquestion is a serious and difficult one, and that our position is necessar\xc2\xad\nily tentative in light of the inconclusive nature of the Supreme Court\xe2\x80\x99s\nguidance.\nT h e o d o r e B. O l so n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n125\n\n\x0c"


b"May 17, 1977\n\n77-27\n\nMEMORANDUM OPINION FOR THE\nDIRECTOR OF THE EXECUTIVE OFFICE\nFOR UNITED STATES ATTORNEYS\nInterchange of Counsel Project\xe2\x80\x94Assistant United\nStates Attorneys and Assistant Public Defenders\n\nThis is in response to your memorandum requesting our opinion on\nthe legal and ethical aspects of having one or more Assistant United\nStates Attorneys and Assistant Federal Public Defenders temporarily\nexchange duties. We understand that the purpose of the proposed\nexchange is to give the participating attorneys a greater understanding\nof and sympathy for counsel who appear against them, by allowing\nprosecutors to defend a number of criminal cases and vice versa. While\nseveral types of exchange programs have been conducted, all of the\nproposed programs necessarily contemplate that the participating attor\xc2\xad\nneys will return to their form er duties.\nIt should be noted at the outset that the attorneys employed by a\nFederal Public Defender Office are officers of the judicial branch of the\nGovernment. They are paid by the Administrative Office of the United\nStates Courts from the appropriation for the judiciary, and they are\nultimately responsible to the Judicial Council of the circuit in which\nthey perform their duties. The Department o f Justice has no control\nover them .1 Assistant U.S. Attorneys, on the other hand, are employees\nof the Departm ent of Justice.\n'S e e 18 U.S.C. \xc2\xa7 3006A(h)(2)(A), (j). T h e Federal P ublic D efender Office shares the\ntask o f defending indigents accused o f Federal crim es w ith the private bar o f the district\nin w hich it operates. See 18 U.S.C. \xc2\xa7 3006A (a), (b).\nT h e statute provides an alternative to the F ederal Public D efender Office if the district\nc o u rt and the C ircuit Judicial C ouncil prefer th e Com m unity D efender O rganization. The\nC om m unity D efender O rganization is a private, nonprofit organization funded by a block\ng ran t o f judicial funds. See 18 U .S.C . \xc2\xa7 3006A(h)(2)(B). W hile the statute requires the\nC om m unity D efender O rganization to report its activities and financial position to the\nJudicial C onference o f the United States, it does not ap p ear to prohibit the organization\nfrom receiving funds from other sources. E m ployees of a Com m unity D efender O rganiza\xc2\xad\ntion are not Federal employees.\n\n110\n\n\x0cA p p l ic a b il it y o f t h e C o n f l ic t o f I n t e r e s t L a w s a n d t h e D e p a r t \xc2\xad\nm e n t \xe2\x80\x99s S t a n d a r d s o f C o n d u c t\n\nSection 205 of Title 18, U.S. Code, provides, in pertinent part, as\nfollows:\nWhoever, being an officer or employee of the United States in the\nexecutive . . . or judicial branch o f the Government . . . otherwise\nthan in the proper discharge of his official duties\xe2\x80\x94\n*\n\n*\n\n*\n\n*\n\n*\n\n*\n\n*\n\n(2)\nacts as agent or attorney for anyone before any department,\nagency, court-martial, officer, or any civil, military, or naval com\xc2\xad\nmission in connection with any proceeding . . . controversy,\ncharge, accusation, arrest, or other particular matter in which the\nUnited States is a party or has a direct and substantial interest . . .\nis guilty of a felony.2 The statute expressly allows representation \xe2\x80\x9cin the\nproper discharge of . . . official duties.\xe2\x80\x9d The House committee that\ndrafted the statute stated that its purpose was to protect the \xe2\x80\x9cclear\npublic interest in preventing Government employees from allying them\xc2\xad\nselves actively with private parties in the multitude of matters and\nproceedings in which . . . the Government has a direct and substantial\ninterest.\xe2\x80\x9d [Emphasis added.]3 In the light of this intent, this Office has\nregarded \xc2\xa7 205 as prohibiting Federal attorneys from serving as volun\xc2\xad\nteer or appointed criminal defense counsel in United States and District\nof Columbia courts. But this limitation does not apply to a Federal\nPublic Defender Office, whose statutory function is to defend Federal\ncriminal cases.\nThe proposed exchange program therefore differs significantly from\nother proposals that we have considered. Instead of acting as private\nindividuals or affiliates of a nongovernmental organization, participating\nAssistant U.S. Attorneys would be assigned by this Department to the\nPublic Defender Office, another Federal Government agency, and\nwould perform the official duties of that organization under its supervi\xc2\xad\nsion. Those duties would include the defense of Federal criminal pros\xc2\xad\necutions. Thus, we see no problem as far as \xc2\xa7 205 is concerned.4\nIt should also be noted that 18 U.S.C. \xc2\xa7 203(a) and 28 CFR 45.7356(a)(3) prohibit Department attorneys from soliciting or receiving any\ncompensation other than \xe2\x80\x9cas provided by law for the proper discharge\nof official duties\xe2\x80\x9d in connection with litigation against the Government.\nThe Department\xe2\x80\x99s Standards of Conduct, 28 CFR \xc2\xa7 45.735-9(e), permit\nDepartment attorneys to provide uncompensated legal assistance to\nindigents in off-duty time, but in that connection they forbid \xe2\x80\x9crepresen\xc2\xad\n2 T he D epartm ent\xe2\x80\x99s Standards o f C onduct, 28 C F R \xc2\xa7 45.735-6(a)(2), duplicate the\nstatute.\n3 H.R. Rep. 748, 87th Cong., 1st Sess., p. 9.\n4 T his conclusion does not apply to the assignm ent o f D epartm ent o f Justice attorneys\nto a private legal services organization, such as a C om m unity D efender O rganization.\n\nIll\n\n\x0ctation or assistance in any criminal matter or proceeding, whether\nFederal, State or local.\xe2\x80\x9d For the reason stated above, we are of the\nopinion that these provisions do not restrict participation in an ex\xc2\xad\nchange program with a Federal Public Defender office.\nEthical Implications\nThe contemplated exchange program does, however, raise ethical\nproblems. The participating attorney is in a situation where his loyalties\nmay be divided between a temporary and a permanent employer. When\na tem porary and permanent employer represent conflicting legal inter\xc2\xad\nests, the American Bar Association (ABA) Code of Professional Re\xc2\xad\nsponsibility severely limits the attorney\xe2\x80\x99s freedom of action. Here the\ninterest of the Assistant U.S. Attorneys is to prosecute and to establish\ncase precedent conducive to effective prosecution; the interest of the\nPublic Defender is to defend and to develop case law favorable to\ndefendants. There is a certain inherent conflict in the two roles.\nThe disciplinary rules implementing Canon 5 of the Code of Profes\xc2\xad\nsional Responsibility embody the ancient maxim that a person cannot\nserve tw o masters. Of particular significance is DR 5 - 105(A), which\nprovides as follows:\nA lawyer shall decline proffered employment if the exercise of his\nindependent professional judgm ent in behalf of a client will be or is\nlikely to be adversely affected by the acceptance of the proffered\nemployment, or if it would be likely to involve him in representing\ndiffering interests, except to the extent permitted under DR 5105(C).\nThe rule applies not only to open conflicts but also to \xe2\x80\x9csubliminal or\nconcealed\xe2\x80\x9d influences on the attorney\xe2\x80\x99s loyalty. Goodson v. Payton, 351\nF. 2d 905, 909 (4th Cir. 1965); ABA Formal Opinion 30. For that\nreason it is considered unethical for an active prosecutor to represent\ncriminal defendants in his o r her own or another jurisdiction. See ABA\nFormal Opinions 30, 34, 118, 142. Similarly, it is considered unethical\nfor an attorney or his associates 5 to attack the result of his professional\nefforts on behalf of a former private or governmental employer. ABA\nFormal Opinions 33, 64, 71. Finally, the rule would prohibit an attor\xc2\xad\nney who is temporarily absent from his employer, with arrangements\n5 D R 5 - 105(D) provides:\nI f a law y er is required to decline em ploym ent or to w ithdraw from em ploym ent\nun d er a D isciplinary Rule, n o partner, or associate, o r any o th er law yer affiliated\nw ith him o r his firm, may a cc ep t o r continue em ploym ent.\nW hile this rule clearly applies to colleagues w ith w hom the law yer shares a com m on\nfinancial interest, it also serves to prevent even the possible appearance o f conflicting\nloyalties o r disclosure o f confidences w ithin a g roup o f law yers w ho practice together.\nSee A B A Form al O pinions 16, 33, 49, 296, 306; Inform al Opinion 1235.\n\n112\n\n\x0cmade for his return, from representing interests adverse to those of the\npermanent employer. ABA Formal Opinion 192.\xc2\xae\nIn a recent opinion,7 the ABA considered the propriety of a military\nlegal office providing both prosecution and defense counsel in the same\ncourt-martial. It was willing to approve the arrangement only if indi\xc2\xad\nvidual attorneys were assigned, as far as practicable, exclusively to\nprosecution or defense work. It stated that \xe2\x80\x9cperformance of adverse\nroles in succeeding cases within the same jurisdiction, even though the\ncases themselves may be entirely unrelated, will involve lawyers in\npotentially awkward situations.\xe2\x80\x9d The opinion continued:\nDepending on whether a lawyer is cast in a defense or prosecutor\xc2\xad\nial role, he may be required to frame and advocate interpretations\nof established rules of law or procedure that are, or seem to be,\npoles apart. He may be required to criticize police actions in one\ncase, then turn about to defend the same or similar actions in a\nsubsequent case where the facts may be, or seem to be, the same.\nHe will deal frequently with the same investigative or police per\xc2\xad\nsonnel; he may appear before the same [judges]. In the course of\nthis, the temptations may be great to mute the force of advocacy,\nor adjust the handling o f cases in subtle ways.\nThe opinion also noted that an appearance of impropriety would be\ncreated, in violation of Canon 9, when the same attorney represented\nthe prosecution and the defense in succeeding cases.\nIt is certainly open to argument that any temporary exchange of\nattorneys between a U.S. Attorney\xe2\x80\x99s Office and a Federal Public De\xc2\xad\nfender\xe2\x80\x99s Office would create conflicting loyalties in violation of Canon\n5 and D R 5 - 105(A). The interests of the respective offices serving in\nthe same district are plainly adverse. Even if the participants in an\nexchange program were sent to other districts, they would still be\ninvolved in creating precedent adverse to the interests served by their\npermanent employers. The possibility that they would maintain a con\xc2\xad\nscious or subliminal loyalty to the permanent employer is enhanced by\nthe fact that both the Department of Justice and the Federal Public\nDefender Offices have considerable discretion in the pay and promotion\nof their attorneys.8 It would be difficult to avoid the appearance that a\n* In Form al Opinion 192, the question was w hether a law yer tem porarily em ployed full\ntim e by the governm ent could remain a m em ber o f his form er law firm if he received no\ncom pensation from it. T h e opinion concluded that he could remain a m em ber o f the firm\nonly \xe2\x80\x9cso long as the firm refrains from representing interests adverse to the em ployer.\xe2\x80\x9d\n7 A B A Inform al Opinion 1235 (A ugust 24, 1972). Accord: Goodson v. Payton, supra, at 908.\n908.\n8 See 18 U.S.C. \xc2\xa7 3306A(h)(2)(A); 28 U.S.C. \xc2\xa7 548; 28 C F R \xc2\xa7 0.15(b)(3)(ii).\n\n113\n\n\x0cpublic defender, who is on temporary assignment from a prosecutor\xe2\x80\x99s\noffice that controls his immediate professional future, might be deliber\xc2\xad\nately or unconsciously devoting less than his best efforts to the defense\nof his clients. The same would, o f course, be true of a public defender\nassigned to the Department.9\nThe exception to DR 5 - 105(A) contained in D R 5 -105(C)10 would\nnot appear to apply here. Assuming that \xe2\x80\x9cmultiple clients\xe2\x80\x9d within the\nmeaning of the rule include successive clients with differing interests,\nthe exception applies only when it is \xe2\x80\x9cobvious\xe2\x80\x9d that the lawyer can\nadequately represent the interest of each client and all clients have\ngiven their fully informed consent. Given the conflict between the\ninterests represented by U.S. Attorneys and the Federal Public Defend\xc2\xad\ners and the control they have over the pay and promotion of their\nsubordinates, it is by no means obvious that an attorney temporarily\nattached to the one would not retain some permanent loyalty to the\nother. M oreover, the need to obtain the informed consent of a defend\xc2\xad\nant whenever an Assistant U.S. Attorney is assigned to him could limit\nconsiderably the number o f cases in which he could participate.\nEffective Assistance of Counsel\nFinally, the temporary assignment of an Assistant U.S. Attorney as\ndefense counsel would also present a problem with respect to a defend\xc2\xad\nant\xe2\x80\x99s Sixth Amendment right to effective assistance of counsel. It is\nwell settled that effective assistance has not been provided \xe2\x80\x9cif counsel,\nunknown to the accused, and without his knowledgeable assent, is in a\nduplictous position where his full talents\xe2\x80\x94as a vigorous advocate\nhaving the single aim of acquittal by all fair and honorable means\xe2\x80\x94are\nhobbled or fettered, or restrained by commitments to others.\xe2\x80\x9d 11 The\nFourth Circuit, moreover, has held that the possibility of \xe2\x80\x9csubliminal or\nconcealed\xe2\x80\x9d influences is so great that the assignment of a prosecutor as\ndefense counsel without the consent of the accused is per se a denial of\nthe right to counsel.12 It should also be noted that the Third Circuit, in\n\xe2\x80\xa2 T h ere ap p ear to be no published ethics opinions o f the A B A o r o th er organizations\nc o ncerning the exchange program s that are being conducted in several States.\n10 D R 5-105(C ) provides:\nIn the situations covered b y D R 5 - 105(A) . . . a law yer m ay represent m ultiple\nclients if it is obvious that h e can adequately represent the interest o f each and if\neach consents to the representation after full disclosure o f the possible effect o f such\nrepresentation on the exercise o f his independent professional judgm ent on behalf o f\neach.\n11 Porter v. United States, 298 F . 2d 461, 463 (5th Cir. 1962). Accord: United States v.\nJeffers, 520 F. 2d 1256 (7th Cir. 1975); United States el rel Hart v. Davenport, 478 F. 2d\n203 (3d C ir. 1974); Goodson v. Payton, 351 F. 2d 905 (4th Cir. 1965). See, generally. Glosser\nv. United States, 315 U.S. 60(1942).\n11 Goodson v. Payton, 351 F. 2d 905, 908-09 (4th Cir. 1965) supra. T he case arose from\nthe V irginia p ractice, since discontinued, o f assigning the prosecuting a ttorney o f one\nrural co u n ty as defense counsel in other counties if no local attorney was available. Id. at\n906-07; see, also, Yates v. Payton, 378 F. 2d 57 (4th Cir. 1967).\nT h e Sixth C ircuit has declined to adopt a per se rule. See, Dawson v. Cowan, 531 F. 2d\n1374, 1376 (6th C ir. 1976); Harris v. Thomas, 311 F. 2d 560, 561 (6th Cir. 1965).\n\n114\n\n\x0cobiter dictum, has defined \xe2\x80\x9cnormal competency\xe2\x80\x9d of counsel for Sixth\n\nAmendment purposes to include \xe2\x80\x9csuch adherence to ethical standards\nwith respect to avoiding conflicting interests as is generally expected\nfrom the bar.\xe2\x80\x9d 13\nIt seems to us that on the basis of these cases an Assistant U.S.\nAttorney serving temporarily as a public defender could not constitu\xc2\xad\ntionally be assigned to a defendant without his informed consent. Re\xc2\xad\ngardless of the outcome of litigation on this point, the possibility im\xc2\xad\npairs the usefulness of any assistant participating in an exchange pro\xc2\xad\ngram.\nIn conclusion, it is our opinion that the statutes governing conflicts of\ninterest and the Department\xe2\x80\x99s Standards of Conduct do not as such\nprohibit the temporary assignment of Assistant U.S. Attorneys to\nPublic Defender Organizations as defense counsel in criminal cases.\nHowever, under both the Code of Professional Responsiblity and case\nlaw concerning effective assistance of counsel, any assistant so assigned\ncould not represent a defendant without obtaining his informed consent\nafter complete disclosure of his apparent conflicting interests. There is\nalso precedent from one Federal circuit that would appear to make it a\nper se denial of effective assistance of counsel for an Assistant U.S.\nAttorney to be assigned to a defendant. In our opinion, the requirement\nof disclosure and consent and the risk of direct or collateral attack on\nconvictions in which a participating Assistant U.S. Attorney was in\xc2\xad\nvolved, may seriously impair the usefulness of any exchange program\ninvolving Assistant U.S. Attorneys.\nJohn M . H\n\narm on\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n13 United States ex rel. Hart Davenport. 478, F. 2d 203, 210 (3d Cir., 1974).\n\n115\n\n\x0c"


b'Anti-Lobbying Restrictions Applicable to Community Services\nAdministration Grantees\nT he anti-lobbying rider in the Community Services Administration (CSA) appropriation\nact is broader than the generally applicable restrictions on lobbying by executive\nofficers, and prohibits recipients o f CSA grant funds from engaging in any activity\ndesigned to influence legislation pending before Congress, including direct contacts\nwith Congress.\nCongress is under no obligation to make funds available to any agency for every\nauthorized activity in any given fiscal year, and there should be no presumption that it\nhas done so.\nT he anti-lobbying statute, 18 U.S.C. \xc2\xa7 1913, and the general \xe2\x80\x9cpublicity and propaganda\xe2\x80\x9d\nrider in the G eneral Government Appropriations A ct, have been narrowly construed to\nprohibit the use o f federal funds for \xe2\x80\x9cgrassroots\xe2\x80\x9d lobbying, but not to prohibit a wide\nrange of necessary communications betw een the Executive on the one hand, and\nCongress and the general public on the other. The considerations that underlie this\nnarrow construction are irrelevant to a prohibition against lobbying by private persons\nreceiving federal grants and contracts.\nStatements made by individual legislators and committees after the enactment of legisla\xc2\xad\ntion carry little weight in statutory interpretation, and are not a sufficient basis for\naltering a conclusion required by the plain meaning o f the statutory language.\n\nJune 17, 1981\nM EM ORANDUM O PIN IO N FO R T H E CO UN SEL TO T H E\nD IR E C T O R , O FFIC E O F M A N A G EM EN T A N D BU DG ET\nOn January 19, 1981, the D irector of the Community Services\nAdministration (CSA) published in the Federal Register an interpretive\nruling by the CSA General Counsel discussing the legal effect of an\n\xe2\x80\x9canti-lobbying\xe2\x80\x9d rider that applies to CSA appropriations. See 46 Fed.\nReg. 4919. T he history and language of the rider are set out in the\nm argin.1 In his ruling, the CSA General Counsel concluded that the\n! The rider derives from a provision that first appeared in the FY 1979 appropriation for the\nD epartm ents o f Labor, Health, E ducation and Welfare, and related agencies. See Pub. L. No 95-480,\n\xc2\xa7 407, 92 Stat. 1589 (1978). The provision has since been carried forward in successive public laws and\nresolutions applicable to those agencies. See, e.g., Pub. L. No. 96-536 [H.J. Res. 644], 94 Stat. 3166\n(1980), as amended by A ct of June 5, 1981 [H.R. 3512], Pub. L. No. 97-12, 95 Stat. 14, See 127 Cong.\nRec. S5796-S5807 (daily ed. June 4, 1981). The language of the n d er is as follows:\nNo part of any appropriation contained in this A ct shall be used, other than for\nnormal and recognized executive-legislative relationships, for publicity or propaganda\npurposes, for the preparation, distribution, o r use of any kit, pamphlet, booklet, publi\xc2\xad\ncation, radio, television, o r film presentation designed to support or defeat legislation\npending before the Congress, except in presentation to the Congress itself. No part of\nany appropriation contained in this Act shall be used to pay the salary or expenses of\nContinued\n\n180\n\n\x0crider, in its application to CSA grantees, imposes anti-lobbying restric\xc2\xad\ntions that are no more stringent than those imposed upon executive\nofficers and employees by 18 U.S.C. \xc2\xa71913 2 and by the traditional\n\xe2\x80\x9cpublicity and propaganda\xe2\x80\x9d rider contained in the Treasury, Postal\nService, and General Government Appropriations A ct.3 In reliance\nupon that legal conclusion, the Director of CSA \xe2\x80\x9cwaived\xe2\x80\x9d certain antilobbying restrictions contained in existing CSA grants. Those restric\xc2\xad\ntions were apparently based upon an older, more stringent interpreta\xc2\xad\ntion of the rider. You have asked whether, in the opinion of this Office,\nthe conclusions reached by the General Counsel were legally correct.\nI.\n\nThe CSA rider imposes two different kinds of restrictions on the use\nof appropriated funds. The first, set forth in the first sentence of the\nrider, prohibits the use of funds \xe2\x80\x9cfor publicity and propaganda pur\xc2\xad\nposes\xe2\x80\x9d or for the preparation or use of any \xe2\x80\x9ckit, pamphlet, booklet,\npublication, radio, television, or film presentation designed to support\nor defeat legislation pending before Congress, except in presentation to\nthe Congress itself.\xe2\x80\x9d This language is similar to the language of the\ntraditional \xe2\x80\x9cpublicity and propaganda\xe2\x80\x9d rider contained in the General\nAppropriations Act. Unlike the traditional rider, however, the CSA\nrider catalogs the kinds of materials and \xe2\x80\x9cpresentations\xe2\x80\x9d for which\nappropriated funds may not be expended (kits, pamphlets, etc.), and it\nauthorizes at least two kinds of expenditures. It expressly permits ex\xc2\xad\npenditures for the maintenance o f \xe2\x80\x9cnormal and recognized executiveany grant o r contract recipient or agent acting for such recipient to engage in any\nactivity designed to influence legislation or appropriations pending before the Con\xc2\xad\ngress.\nIn its present form, the rider applies by its terms to all appropriations made or continued by the\nrelevant Act, including appropriations for the Departments of Labor, Health and Human Services,\nEducation, and the Community Services Administration, among others\n2Section 1913 provides as follows:\nNo part of the money appropriated by any enactment of Congress shall, in the\nabsence of express authorization by Congress, be used directly or indirectly to pay for\nany personal service, advertisement, telegram, telephone, letter, printed or written\nmatter, or other device, intended or designed to influence in any manner a Member of\nCongress, to favor o r oppose, by vote or otherwise, any legislation or appropriation by\nCongress, whether before or after the introduction o f any bill or resolution proposing\nsuch legislation or appropriation; but thts shall not prevent officers or employees of the\nUnited States o r o f its departments or agencies from communicating to Members of\nCongress on the request of any Member or to Congress, through the proper official\nchannels, requests for legislation or appropriations which they deem necessary for the\nefficient conduct o f the public business\nWhoever, being an officer or employee o f the United States or of any department or\nagency thereof, violates or attempts to violate this section, shall be fined not more than\n$500 or imprisoned not more than one year, or both; and after notice and hearing by\nthe superior officer vested with the power of removing him, shall be removed from\n- office or employment.\n3See Pub. L. No. 96-74, \xc2\xa7607, 93 Stat. 575. T he language of the traditional rider is as follows:\nNo part of any appropriation contained in this or any other Act, or of the funds\navailable for expenditure by any corporation or agency, shall be used for publicity or\npropaganda purposes,designed to support or defeat legislation pending before Con\xc2\xad\ngress.\n\n181\n\n\x0clegislative relationships,\xe2\x80\x9d and it seems to contemplate that funds may be\nexpended for the preparation of kits, pamphlets, and other \xe2\x80\x9cpresenta\xc2\xad\ntions\xe2\x80\x9d that are made directly to Congress itself.\nThe second restriction is set out in the second sentence of the rider.\nUnlike the first, it applies only to persons w ho receive appropriated\nfunds under government grants or contracts. The second sentence states\nflatly that \xe2\x80\x9c[n]o part of any appropriation contained in this Act shall be\nused to pay the salary or expenses of any grant or contract recipient or\nagent acting for such recipient to engage in any activity designed to\ninfluence legislation or appropriations pending before Congress.\xe2\x80\x9d Be\xc2\xad\ncause this language forbids the payment of expenses for \xe2\x80\x9cany activity\xe2\x80\x9d\ndesigned to influence legislation pending before Congress, it is far\nbroader than the language of the traditional \xe2\x80\x9cpublicity and propaganda\xe2\x80\x9d\nrider. M oreover, because it applies expressly to grantees and contrac\xc2\xad\ntors and makes no express provision for direct contacts with Congress,\nit is quite unlike the language of the \xe2\x80\x9canti-lobbying\xe2\x80\x9d statute, 18 U.S.C.\n\xc2\xa7 1913.\nIn his interpretive ruling, the General Counsel concluded that the\ntw o sentences of the CSA rider should be read together. His opinion\nstates that the two sentences impose a single restriction upon the use of\nfederal funds, a restriction that applies equally to federal agencies and\nfederal grantees. He concluded that for agencies and grantees alike, the\nrider prohibits \xe2\x80\x9cgrassroots lobbying\xe2\x80\x9d and nothing more.\nWe agree with the General Counsel\xe2\x80\x99s conclusion regarding the appli\xc2\xad\ncation of the rider to federal agencies; but for the reasons given below,\nwe cannot agree with his conclusion regarding the application of the\nrider to federal grantees.\nII.\nIn our view, the language of the second sentence of the rider imposes\nan unqualified prohibition against payment o f expenses incurred by\ngrantees in any activity designed to influence legislation pending before\nCongress. The meaning of the language is quite clear when the second\nsentence is considered alone. The meaning is made even clearer when\nthe second sentence is read in context with the first. The first sentence\nmakes provision for normal and appropriate \xe2\x80\x9crelationships\xe2\x80\x9d between\nthe Legislative and Executive Branches of government; it is conspicu\xc2\xad\nously silent with regard to federally financed \xe2\x80\x9crelationships\xe2\x80\x9d between\nCongress and federal grantees. The first sentence prohibits federal agen\xc2\xad\ncies from expending appropriated funds only for \xe2\x80\x9cpublicity and propa\xc2\xad\nganda\xe2\x80\x9d or for the preparation of certain kits, pamphlets, and presenta\xc2\xad\ntions. The second sentence forbids grantees and contractors to expend\nappropriated funds for any activity designed to influence pending litiga\xc2\xad\ntion.\n182\n\n\x0cWe believe, in short, that these two sentences impose two different\nanti-lobbying restrictions: one, a traditional \xe2\x80\x9cpublicity and propaganda\xe2\x80\x9d\nrestriction applicable to officers and employees of the government; the\nother, an unqualified prohibition against lobbying by federal grantees.\nThe meaning of the rider is so plain on the face o f the text that we\ncould not accept another interpretation unless there were persuasive\nreasons for doing so.\nThe General Counsel gave three reasons for interpreting the rider\nnarrowly in its application to CSA grantees. He argued, first, that if the\nrider were read broadly, it would prevent CSA grantees from carrying\nout their contractual obligation to be advocates for the poor. He also\nnoted that CSA itself is required by statute to \xe2\x80\x9cstimulate a better\nfocusing of federal resources on behalf of the poor,\xe2\x80\x9d and he argued that\nthe rider should not be read to frustrate that statutory mission. Second,\nhe argued that 18 U.S.C. \xc2\xa7 1913 and the General Appropriations rider\nhave been construed narrowly and that the CSA rider should be given\na similar interpretation so that the mission of CSA and the CSA\ngrantees will not be frustrated. Finally, he noted that Senator Warren\nMagnuson, Chairman of the Senate Labor, Health and Human Services\nand Education\xe2\x80\x99s Appropriation Subcommittee, stated in a letter to the\nDirector of CSA that his subcommittee did not intend the rider to\nprevent CSA and its grantees from: (1) responding to any request for\ninformation from Members of Congress; (2) providing educational in\xc2\xad\nformation to Congress and the public in general on the effects of\nlegislative issues on individuals an d /o r communities; and (3) providing\ninformation to Congress concerning legislative issues which directly\naffect the continued existence of CSA or its grantees.\nIn our opinion, the reasons given in support of the General Counsel\xe2\x80\x99s\ninterpretation neither require nor justify a narrow reading of the statu\xc2\xad\ntory prohibition against lobbying by grantees. Our research has not\nuncovered any other consideration that would require us to alter our\ninitial conclusion that the rider means what it says. We will discuss the\nrelevant points below.\nContractual and statutory obligations. The General Counsel suggested\nthat a strict reading of the rider would prevent grantees from discharg\xc2\xad\ning their obligations under their grants. But federal grantees cannot be\nrequired to do what federal law prohibits. Even if we could accept the\ncontention that existing grant provisions require CSA grantees to use\nappropriated funds to lobby for or against specific legislation pending\nbefore Congress,4 the existence of that \xe2\x80\x9crequirement\xe2\x80\x9d would not be a\nvalid reason for interpreting the appropriations rider either narrowly or\nbroadly.\n4 In fact, existing CSA grants contain express anti-lobbying provisions, which were \xe2\x80\x9cwaived\xe2\x80\x9d in the\nJanuary 19, 1981, publication. In light of those provisions, we simply do not understand the argument\nthat the contractual obligations of CSA grantees collided with the appropriations rider.\n\n183\n\n\x0cRegarding the related but somewhat different contention that the\norganic legislation governing CSA conflicts with the rider, tw o obser\xc2\xad\nvations are in order. First, insofar as CSA itself is concerned, the rider\nexpressly authorizes normal legislative-executive relationships, and it\nprohibits only \xe2\x80\x9cpublicity and propaganda.\xe2\x80\x9d A similar prohibition applies\nto each agency o f the government. There is nothing in the CSA rider\nthat prevents CSA itself from discharging its statutory mission. Second,\ninsofar as the grantees are concerned, we have reviewed the relevant\nlegislation carefully; 5 and it is far from clear to us that any specific\ncongressional purpose behind that legislation would be frustrated if\nCSA grantees were forbidden to use federal money to lobby for or\nagainst specific measures actually pending before Congress. More im\xc2\xad\nportantly, even if one could conclude that the grantees are authorized\nby the organic legislation to use federal money for lobbying purposes,\nCongress is under no obligation to make money available for that\npurpose in any given fiscal year. Indeed, the express language o f the\nrider suggests that Congress has expressly declined to make money\navailable for that purpose in the current fiscal year, and there is no\nprinciple o f interpretation or construction that prevents executive offi\xc2\xad\ncers o r the courts from giving full effect to that fiscal purpose. It is\ntrue, as the General Counsel points out, that statutes should be con\xc2\xad\nstrued harmoniously and that unnecessary conflicts should be avoided,\nbut that principle carries little force in the appropriations context. Just\nas there is no presumption that the availability of funds alters substan\xc2\xad\ntive limitations on statutory authority, see TVA v. Hill, 437 U.S. 153\n(1978), there is no presumption that Congress has made funds available\nfor every authorized purpose in any given fiscal year. See Opinion of\nC om ptroller General for Honorable F. James Sensenbrenner, Jr.,\nprinted in 127 Cong. Rec. H1843, 1845 (daily ed. May 5, 1981) (\xe2\x80\x9cAn\nappropriation restriction may forbid the use o f funds by an agency even\nfor some activity authorized in its organic legislation.\xe2\x80\x9d).\nTraditional interpretation o f the anti-lobbying statute and the general\nappropriations rider. As the General Counsel points out, the anti-lobby\xc2\xad\n\ning statute and the general \xe2\x80\x9cpublicity and propaganda\xe2\x80\x9d rider have been\nconstrued to prohibit federal officers and employees from using federal\nfunds to mount \xe2\x80\x9cgrassroots campaigns.\xe2\x80\x9d W e know of no reason to\nconclude that the same narrow construction should be given to the\nlanguage of the second sentence o f the CSA rider, which on its face\nimposes an unqualified prohibition against \xe2\x80\x9cany activity\xe2\x80\x9d by federal\ngrantees designed to influence pending legislation. We have already\nnoted the significant differences between the language of the CSA rider\nand the language of the other two provisions. There are more funda\xc2\xad\nmental differences as well.\n5 T he relevant statutes are codified in scattered sections o f Chapter 34 o f 42 U.S C. See, e.g., 42\nU.S C. \xc2\xa7 2790 et seq., \xc2\xa7 2861 et seq., \xc2\xa7 2981 et seq.\n\n184\n\n\x0cThe Constitution contemplates that there will be an active inter\xc2\xad\nchange between Congress, the Executive Branch, and the public\nconcerning matters of legislative interest. For that reason alone, this\nDepartment has traditionally declined to read the criminal statute and\nthe general rider as requiring federal officers and employees to use their\nown funds and their own time to frame necessary communications to\nCongress and the public. We have taken the view that the criminal\nstatute and the general rider impose no such requirement. They permit\na wide range o f contact between the Executive and the Congress and\nthe Executive and the public in the normal and necessary conduct of\nlegislative business.\nThe prudential considerations that underlie this narrow and necessary\nconstruction are largely irrelevant to prohibitions against lobbying by\nprivate persons and organizations that receive federal funds under fed\xc2\xad\neral grants and contracts. Although private persons and organizations\nhave a right to petition Congress and to disseminate their views freely,\nthey can be expected, within the framework established by the Consti\xc2\xad\ntution, to do their lobbying at their own expense. They have no inher\xc2\xad\nent or implicit right to use federal funds for that purpose unless Con\xc2\xad\ngress has given them that right. In the case of the CSA grantees and\nother grantees covered by the rider, Congress appears to have expressly\nintended to forbid the use of federal funds by grantees for lobbying\npurposes.\nSubsequent legislative history. The General Counsel declared that there\nis no formal legislative history that casts light on the legislative inten\xc2\xad\ntions behind the CSA rider. We do not disagree with that conclusion;\nhowever, the General Counsel relied upon a letter addressed to the\nDirector of CSA by Senator W arren Magnuson, in which the Senator\nexpressed the view that his subcommittee did not intend the rider to\nprevent CSA grantees from engaging in certain activities. We have\ndescribed the contents of that letter in some detail in the paragraphs\nabove.\nWhen a legislative proposal is pending before Congress, the state\xc2\xad\nments and reports of individual legislators or legislative committees\nconcerning the meaning or effect of the proposal are part of the\nlegislative record; and they carry force, as sources for interpretation, if\nthe proposal is enacted into law. Because they were before the Con\xc2\xad\ngress and were presumably considered by Congress at the time of\nenactment, they are some evidence of what a majority of the Congress\nmay have intended the proposal to accomplish. On the other hand,\nstatements made by individual legislators and committees after enact\xc2\xad\nment carry little force as a legal matter, because at best they are\nevidence only o f what individual intentions may have been. Thus it is a\ntraditional rule that \xe2\x80\x9csubsequent legislative history\xe2\x80\x9d is entitled to little\nweight in matters of statutory interpretation. See, e.g., TVA v. Hill,\n185\n\n\x0csupra; Regional Rail Reorganization A ct Cases, 419 U.S. 102, 132 (1974);\nAllyn v. United States, 461 F.2d 810, 811 (Ct. Cl. 1972); 2A Sutherland\n\nStatutory Construction \xc2\xa7 48.16 (Sands ed. 1973).\nIn accordance with that rule, even if Senator Magnuson\xe2\x80\x99s statements\nhad been made, not in a letter to the Director of CSA, but in a\nsubsequent committee report or a subsequent congressional debate, they\nw ould carry little force as a matter o f interpretation and would not be a\nsufficient basis for altering the conclusion that seems to be required by\nthe plain meaning of the statutory language.\nCSA grantees, and other grantees covered by the rider, may not use\nappropriated funds to engage in activities designed to influence legisla\xc2\xad\ntion pending before Congress.\nT h e o d o r e B. O l s o n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n186\n\n\x0c'