b"Constitutionality of Legislative Provision Regarding ABM\nTreaty\nThere are serious doubts as to the constitutionality o f a provision of a bill stating that the United\nStates shall not be bound by any international agreement entered into by the President that would\nsubstantively m odify the Antiballistic Missile Treaty with the Soviet Union, including any agree\xc2\xad\nm ent that would add other countries as signatories or convert that bilateral treaty into a multilateral\ntreaty, unless the agreement is entered pursuant to the President\xe2\x80\x99s treaty making power. The provi\xc2\xad\nsion intrudes on the Executive\xe2\x80\x99s exclusive constitutional powers to interpret and execute treaties\nand to recognize foreign States.\n\nJune 26, 1996\nM e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t\n\nYou have asked for our views on section 233(a) of S. 1745, the Department\no f Defense Authorization Act for Fiscal Year 1997, relating to the Antiballistic\n(\xe2\x80\x9c A B M \xe2\x80\x9d ) Treaty with the former Soviet Union, Treaty on the Limitation of AntiBallistic Missile Systems, May 26, 1972, U.S.-U.S.S.R., 23 U.S.T. 3435. Section\n233(a) reads:\n(a) Fiscal Year 1997. \xe2\x80\x94 During fiscal year 1997, the United\nStates shall not be bound by any international agreement entered\ninto by the President that would substantively modify the ABM\nTreaty, including any agreement that would add one or more coun\xc2\xad\ntries as signatories to the treaty or would otherwise convert the trea\xc2\xad\nty from a bilateral treaty to a multilateral treaty, unless the agree\xc2\xad\nm ent is entered pursuant to the treaty making power of the Presi\xc2\xad\ndent under the Constitution.\nSection 233(a) raises serious constitutional questions. It is \xe2\x80\x9c a basic principle\no f our constitutional scheme that one branch of the Government may not intrude\nupon the central prerogatives o f another.\xe2\x80\x9d Loving v. United States, 517 U.S. 748,\n757 (1996); see also Commodity Futures Trading Comm\xe2\x80\x99n v. Schor, 478 U.S.\n833, 850 (1986). It follows that Congress may not hamper or curtail the preroga\xc2\xad\ntives that the Constitution commits exclusively to the executive branch. See M orri\xc2\xad\nson v. O lson, 487 U.S. 654, 694 (1988); Bowsher v. Synar, 478 U.S. 714, 726\n(1986). W e have serious doubts about the constitutionality of section 233(a), given\nthat it intrudes on two exclusively Executive prerogatives: the power to interpret\nand execute treaties, and the power of recognition.\n1.\nThe dissolution of the form er Soviet Union during the autumn and winter\no f 1991 required the United States to re-evaluate the bilateral treaties that had\n246\n\n\x0cConstitutionality o f Legislative Provision Regarding ABM Treaty\n\nexisted between the Soviet Union and itself, including the ABM Treaty.1 Both\nPresident Bush and President Clinton operated on the general principle that the\ntreaty rights and obligations of the former Soviet Union had passed to the suc\xc2\xad\ncessor States,2 unless the terms or the object and purpose of the treaty required\na different result. As the Legal Adviser to the State Department during the Bush\nAdministration explained,\n[a]s an operating principle, agreements between the United States\nand the USSR that were in force at the time of the dissolution of\nthe Soviet Union have been presumed to continue in force with\nrespect to the former republics. What is the legal basis for adopting\nthis position? Except for the Baltic states, which the United States\nnever recognized as part of the Soviet Union, we regarded the emer\xc2\xad\ngence of Russia and the other former republics to have stemmed\nfrom what was essentially the complete breakup of the Soviet\nUnion. Thus, continuity of treaty relations is supported by our read\xc2\xad\ning of state practice, and by the policy considerations underlying\nthis rule. Perhaps most importantly, however, continuity has been\nsupported by the republics themselves, who affirmed this approach\nin the Alma Ata Declaration when they guaranteed the \xe2\x80\x9c fulfillment\nof international obligations stemming from the treaties and agree\xc2\xad\nments of the former U.S.S.R.\xe2\x80\x9d\nEdwin D. Williamson and John E. Osborn, A U.S. P erspective on Treaty Succes\xc2\xad\nsion and R elated Issues in the Wake o f the Breakup o f the USSR and Yugoslavia,\n33 Va. J. Int\xe2\x80\x99l L. 261, 264-65 (1993).\nCongress was well aware that the executive branch was conducting discussions\nwith Russia and several other successor States regarding their rights and obliga\xc2\xad\ntions under the ABM Treaty, and it twice \xe2\x80\x9c urged\xe2\x80\x9d the President to pursue such\ndiscussions on particular topics. See Missile Defense Act of 1991, Pub. L. No.\n102-190, \xc2\xa7 233(c), 105 Stat. 1321, 1322, reprinted a s note to 10 U.S.C. \xc2\xa72431;\n1The former Soviet Government recognized the independence o f the Baltic States o f Estonia, Latvia, and Lithuania\non September 6, 1991. O n December 8, 1991, the Republics o f Ukraine, Belams, and Russia formally declared\nthat the Soviet Union had disintegrated, and announced the formation o f the Commonwealth of Independent States.\nIn an Address to the N ation on December 25, 1991, President Bush announced that \xe2\x80\x98\xe2\x80\x98the United States recognizes\nand welcomes the emergence o f a free, independent, and democratic Russia . . . . O ur Embassy in Moscow will\nremain there as our Em bassy to Russia. . . . [T]he United States also recognizes the independence of Ukraine,\nArmenia, Kazakhstan, Byelarus [sic], and Kyrgyzstan, all States that have made specific commitments to us. We\nwill move quickly to establish diplomatic relations with these States and build new ties to them. . . . [T]he United\nStates also recognizes today as independent States the remaining six former Soviet Republics: Moldova,\nTurkmenistan, Azerbaijan, Tadjikistan, Georgia, and Uzbekistan. W e will establish diplomatic relations with them\nwhen we are satisfied that they have made commitments to responsible security policies and democratic principles,\nas have the other States we recognize today.\xe2\x80\x9d 2 Pub. Papers o f George Bush 1654 (1991). See generally Paul\nR. Williams, The Treaty Obligations o f the Successor States o f the Former Soviet Union. Yugoslavia, and Czecho\xc2\xad\nslovakia: Do They Continue in Force?, 23 Denv. J. Int\xe2\x80\x99l L. & P ol'y 1, 3, 24-25 (1994).\n2 References to the \xe2\x80\x9c successor States\xe2\x80\x9d and the like should not be understood to include the Baltic States, whose\nconquest by the Soviet U nion the United States had refused to recognize.\n\n247\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nNational Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160,\n\xc2\xa7 232(c), 107 Stat. 1547, 1593 (1993).\nThe United States\xe2\x80\x99s presumption that the successor States are generally subject\nto our bilateral treaties with the former Soviet Union is rooted, not only in the\nUnited States\xe2\x80\x99s past diplomatic practice, but in its understanding of international\nlaw.3 In a May 10, 1995, diplomatic note to the Government of Ukraine, the\nUnited States took as its point o f departure the \xe2\x80\x9c continuity principle\xe2\x80\x9d of article\n34 of the Vienna Convention on Succession of States in Respect of Treaties, Aug.\n22, 1978, 17 I.L.M. 1488, 1509, which reads in relevant part:\n1. When a part or parts o f the territory o f a State separate to form\none or more States, whether or not the predecessor State continues\nto exist:\n(a)\nany treaty in force at the date of the succession of States\nin respect of the entire territory of the predecessor State continues\nin force in respect of each successor State so formed . . . .\nThe State Department informs us that the resolution of succession questions\nafter the dissolution o f a State has been regarded as a function of the executive\nbranch, and that many executive agreements have been concluded that recognized\nthe succession o f new States to the treaty rights and obligations of their prede\xc2\xad\ncessors. Furthermore, the State Department advises us, such agreements have not\nbeen regarded as treaty amendments or as new treaties requiring Senate advice\nand consent, but rather as the implementation of existing treaties.\n2.\nIt belongs exclusively to the President to interpret and execute treaties. This\nis a direct corollary of his constitutional responsibility to \xe2\x80\x9c take Care\xe2\x80\x9d that the\nlaws are faithfully executed. S ee U.S. Const, art. II, \xc2\xa73; G oldwater v. Carter,\n444 U.S. 996, 1000 n.l (1979) (Powell, J., concurring in judgment) (President\nhas \xe2\x80\x9c duty to execute\xe2\x80\x9d treaty provisions).4 As the Congressional Research Service\nhas stated, \xe2\x80\x9c [t]he executive branch has the primary responsibility for carrying\nout treaties and ascertaining that other parties fulfill their obligations . . . . The\nexecutive branch interprets the requirements of an agreement as it carries out its\nprovisions.\xe2\x80\x9d Treaties and Other International Agreements: The Role o f the United\nStates Senate, 103d Cong, at xxiv-xxv (1993). (A Study prepared for the Senate\nComm, on Foreign Relations) (\xe2\x80\x9c CRS Study\xe2\x80\x9d ).\n3 In an older but still pertinent formulation, \xe2\x80\x9c [a] state formed by separation from another, w hether the personality\no f the original state still exists o r is completely lost by disintegration, succeeds to such treaty burdens of the parent\nstate as are perm anent and attached to the territory embraced in the new state.\xe2\x80\x9d Samuel B. Crandall, Treaties:\nTheir Making and Enforcement 434 (1916).\n4 See also Constitutionality o f Proposed Conditions to Senate Consent to the Interim Convention on Conservation\no f North Pacific Fur Seals, 10 Op. O.L.C. 12, 14-15, 17 (1986).\n\n248\n\n\x0cConstitutionality o f Legislative Provision Regarding A BM Treaty\n\nThe responsibility to interpret and carry out a treaty necessarily includes the\npower to determine whether, and how far, the treaty remains in force. Again,\nwe cite the Congressional Research Service:\nthere is clear judicial recognition that the President may without\nconsulting Congress validly determine the question whether specific\ntreaty provisions have lapsed. The following passage from Justice\nLurton\xe2\x80\x99s opinion in Charlton v. Kelly [229 U.S. 447, 473-76\n(1913)] is pertinent: \xe2\x80\x9c If the attitude of Italy was, as contended,\na violation of the obligation of the treaty, which, in international\nlaw, would have justified the United States in denouncing the treaty\nas no longer obligatory, it did not automatically have that effect.\nIf the United States elected not to declare its abrogation, or come\nto a rupture, the treaty would remain in force. It was only voidable,\nnot void; and if the United States should prefer, it might waive\nany breach which in its judgment had occurred and conform to its\nown obligation as if there had been no such breach. . . . That the\npolitical branch of the Government recognizes the treaty obligation\nas still existing is evidenced by its action in this case. . . . The\nexecutive department having thus elected to waive any right to free\nitself from the obligation to deliver up its own citizens, it is the\nplain duty of this court to recognize the obligation to surrender the\nappellant as one imposed by the treaty as the supreme law o f the\nland as affording authority for the warrant o f extradition.\xe2\x80\x9d\nThe Constitution o f the United States o f America: Analysis and Interpretation,\nS. Doc. No. 99-16, at 518 (1987). Cases both before and after Charlton v. K elly\n\nregard the Executive\xe2\x80\x99s views as determining whether and to what extent treaties\nremain in effect. See, e.g., Trans W orld Airlines, Inc. v. Franklin M int Corp.,\n466 U.S. 243, 253 (1984); K olovrat v. Oregon, 366 U.S. 187, 190 n.4 (1961);\nTerlinden v. Ames, 184 U.S. 270, 286-90 (1902); Restatement (Third) o f the F or\xc2\xad\neign Relations Law o f the United States \xc2\xa7208, Reporters\xe2\x80\x99 Note 5 at 102 (1987).\nHence, \xe2\x80\x9c [u]nder the law of the United States, the President has the power . . .\nto elect in a particular case not to suspend or terminate\xe2\x80\x9d a treaty. Id. \xc2\xa7 339(c).\nAccordingly, in circumstances in which a State that was a party to a bilateral\ntreaty with the United States has been dissolved, the President must determine,\nin executing the treaty, whether and how far it remains in force, whether another\nState or States have succeeded to it, and whether their actions do or do not con\xc2\xad\nstitute compliance with its terms. In this instance, the President has determined\nthat the ABM Treaty\xe2\x80\x99s obligations should be imputed to the Soviet U nion\xe2\x80\x99s suc\xc2\xad\ncessor States, including Russia. Congress may not interfere with or direct the\nPresident\xe2\x80\x99s interpretation and execution of a treaty any more than it may do so\n\n249\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 20\n\nin the case o f a statute. Under the proposed legislation, however, Congress appears\nto be impermissibly interfering in the President\xe2\x80\x99s discharge of those responsibil\xc2\xad\nities with respect to the ABM Treaty, thus violating separation of powers prin\xc2\xad\nciples. See Nixon v. Administrator o f Gen. Servs., 433 U.S. 425, 443 (1977).\nW e are aware that the Senate Committee on Foreign Relations, in its Report\non the Intermediate Range Nuclear Forces Treaty, maintained that it is a constitu\xc2\xad\ntional requirement that \xe2\x80\x9c [t]he meaning of a treaty is to be determined in light\no f what the Senate understands the Treaty to mean when it gives its advice and\nconsent.\xe2\x80\x9d CRS Study at 95. W hile we have not been able to review the entire\nrecord o f the Senate\xe2\x80\x99s ratification of the ABM Treaty, we would point out that\nthe treaty was adopted against a background o f diplomatic practice by the United\nStates and other nations, and that \xe2\x80\x9c where a state divides into its constituent parts,\nthe [diplomatic] practice supports the continuity of existing treaty rights and obli\xc2\xad\ngations.\xe2\x80\x9d 5 Although the dissolution of the Soviet Union was not likely to have\nbeen contemplated when the ABM Treaty was ratified, insofar as the Senate may\nbe taken to have had an understanding of what the treaty would mean in such\ncircumstances, that understanding would have been informed by the pattern of\ndiplomatic practice in similar contingencies. Thus, we do not believe that the exec\xc2\xad\nutive branch\xe2\x80\x99s interpretation o f the ABM Treaty contradicts the Senate\xe2\x80\x99s under\xc2\xad\nstanding at the time of ratification.6\nThe Senate Foreign Relations Committee also maintained that it is constitu\xc2\xad\ntionally required that \xe2\x80\x98 \xe2\x80\x98 [t]he President may not amend a treaty without the agree\xc2\xad\nment o f the parties and the advice and consent of the Senate.\xe2\x80\x9d CRS Study at\n95. Section 233(a) appears to be designed to apply this principle to the ABM\nTreaty, by deeming \xe2\x80\x9c any agreement that would add one or more countries as\nsignatories to the treaty or [that] would otherwise convert the treaty from a bilat\xc2\xad\neral treaty to a multilateral treaty\xe2\x80\x9d to constitute a \xe2\x80\x9c substantive[ ] modif[ication]\xe2\x80\x9d\no f the treaty.\nW e would take issue with the proposition that the inclusion of other Soviet\nsuccessor States along with the United States and Russia as parties to the ABM\nTreaty would necessarily comprise a substantive modification of that treaty, such\nas to require Senate advice and consent. We think this in part because of the\ninternational law and general diplomatic practice regarding successorship, and in\npart because, even without the addition of Ukraine, Belarus, Kazakhstan, and pos\xc2\xad\nsibly other successor States, the ABM Treaty will remain in effect as between\n5 W illiam son and Osborn, supra at 263. F o r example, treaty obligations were found to be continuous in the cases\no f the dissolution o f the following States: the G reater Colombian Union, which broke up into Colombia, Ecuador,\nand V enezuela; the union o f Norway and Sweden, dissolved in 1905; the separation o f Austria and Hungary upon\nthe dissolution o f the Austro-Hungarian Em pire following W orld War I; and the separation of Syria from Egypt\nafter the dissolution o f the United Arab Republic. Id.\n6 Post-ratification interpretations of a treaty by the Senate have no special authority. In Fourteen Diamond Rings\nv. United States, 183 U.S. 176, 180 (1901), the Court, in ignoring a Senate resolution that sought to clarify the\ncustom s status o f an American territory under a treaty o f peace, stated that \xe2\x80\x98\xe2\x80\x98[t]he meaning o f the treaty cannot\nbe controlled by subsequent explanations o f some o f those w ho may have voted to ratify it.\xe2\x80\x9d\n\n250\n\n\x0cConstitutionality o f Legislative Provision Regarding ABM Treaty\n\nthe United States and Russia. Thus, although some changes in the administration\nof the ABM Treaty may be entailed by the inclusion of other successor States\nas parties, we do not see why their inclusion must be considered a matter of\n\xe2\x80\x9c substantively modifying,\xe2\x80\x9d as distinct from \xe2\x80\x9c interpreting\xe2\x80\x9d and \xe2\x80\x9c implementing,\xe2\x80\x9d\nthe treaty. If the changes do not rise to the level of substantive modifications,\nthen to insist that the proposed executive agreements be submitted to the Senate\nfor its advice and consent would appear to intrude on the President\xe2\x80\x99s exclusive\nauthority to interpret and implement treaties.\n3. Section 233(a) also raises a serious constitutional question with respect to\nthe President\xe2\x80\x99s recognition power.\nIt is by now firmly established that the power of recognition is exclusively Exec\xc2\xad\nutive in character. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410\n(1964) (\xe2\x80\x9c Political recognition is exclusively a function of the Executive.\xe2\x80\x9d ).7 It\nis also established that the Executive\xe2\x80\x99s recognition authority \xe2\x80\x9c includes the power\nto determine the policy which is to govern the question of recognition.\xe2\x80\x9d U nited\nStates v. Pink, 315 U.S. 203 , 229 (1942). Thus, incident to the recognition of\na foreign State, the President may \xe2\x80\x9c without the consent of the Senate, . . . deter\xc2\xad\nmine the public policy of the United States with respect to the [previously unrec\xc2\xad\nognized government\xe2\x80\x99s] nationalization decrees,\xe2\x80\x9d id:, or he may unilaterally abro\xc2\xad\ngate a mutual defense treaty with a government that he is derecognizing while\nrecognizing another in its stead, see G oldw ater v. Carter, 444 U.S. at 1007 (Bren\xc2\xad\nnan, J., dissenting). A presidential decision to recognize, or not to recognize, a\nforeign State or government is binding upon the other organs of the Federal Gov\xc2\xad\nernment: for instance, \xe2\x80\x9c [i]t has long been established that only governments recog\xc2\xad\nnized by the United States and at peace with us are entitled to access to our\ncourts, and that it is within the exclusive power of the Executive Branch to deter\xc2\xad\nmine which nations are entitled to sue.\xe2\x80\x9d Pfizer, Inc. v. Government o f India, 434\nU.S. 308, 319-20 (1978). In sum, the President\xe2\x80\x99s recognition authority is not only\nexclusive, but broad.\nThe question of determining which States are the \xe2\x80\x9c successors\xe2\x80\x9d to a State that,\nlike the former Soviet Union, has been completely dissolved, is a matter for the\nPresident alone to determine in the exercise of his recognition authority. Moreover,\nwe believe, in determining which States are the successors of a dissolved State,\nthe President may also determine which of the successors are bound by the former\n1 See also id. at 461 & n.20 (W hile, J., dissenting), United States v. Belmont, 301 U.S. 324, 330(1937), Goldwater\nv. Carter, 444 U.S. at 1007 (Brennan, J., dissenting); Can v. United States, 14 F.3d 160, 163 (2d Cir. 1994); Phelps\nv. Reagan, 812 F.2d 1293, 1294 (10th C ir 1987); Americans United fo r Separation o f Church and State v. Reagan ,\n786 F.2d 194, 202 (3d Cir.), cert, denied, 479 U.S. 914 (1986); Restatement (Third) o f the Foreign Relations Law\no f the United States \xc2\xa7 2 0 4 ( \xe2\x80\x9c [T]he President has exclusive authority to recognize or not to recognize a foreign\nstate or government, and to maintain or not to maintain diplomatic relations with a foreign government.'*); Section\n609 o f the FY 1996 Omnibus Appropriations Act, 20 Op. O.L.C. 189, 193-96 (1996). Bill to Relocate United States\nEmbassy From Tel Aviv to Jerusalemt 19 Op. O.L.C. 123, 124-26 (1995); Memorandum for the Attorney General,\nfrom Theodore B. Olson, Assistant Attorney General, O ffice o f Legal Counsel, Re: Diplomatic Relations with the\nVatican at 4*5 (Jan. 6, 1984); Statement o f Antonin Scalia, Assistant Attorney General, Office o f Legal Counsel,\nRe: Executive Agreements (S. 1251 and S. 632), Before the Subcomm. on Separation o f Powers, Senate Comm,\non the Judiciary at 13 (May 15, 1975).\n\n251\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nState\xe2\x80\x99s treaty obligations towards the United States, and the extent to which they\nare so bound. The power to recognize newly emergent States formed from a\nState\xe2\x80\x99s dissolution thus encompasses the power to determine the treaty con\xc2\xad\nsequences of their successorship to the parent State.\nOne of the elements of the recognition o f these newly emergent States was\nand is their succession to applicable Soviet treaties. By purporting to determine\nthat the addition o f these successor States to the ABM Treaty would constitute\nan amendment to that treaty requiring the advice and consent of two-thirds of\nthe Senate, the proposed legislation would act in derogation of the President\xe2\x80\x99s\nrecognition power. Because the recognition power is exclusively Presidential, it\nis doubtful that Congress may take that step.\nWALTER DELLINGER\nA ssistant Attorney General\nOffice o f Legal Counsel\n\n252\n\n\x0c"


b'(Slip Opinion)\n\nRequests by Individual Members of Congress\nfor Executive Branch Information\nIn reviewing requests from Congress, the Executive Branch\xe2\x80\x99s longstanding policy has\nbeen to engage in the established process for working to accommodate congressional\nrequests for information only when those requests come from a committee, subcommittee, or chairman acting pursuant to oversight authority delegated from a House of\nCongress. Departments and agencies, however, may appropriately give due weight and\nsympathetic consideration to requests for information from individual members of\nCongress not delegated such authority.\nOnly a committee chairman may request presidential records under section 2205(2)(C) of\nthe Presidential Records Act, unless the committee has specifically del egated that authority to another member.\nFebruary 13, 2019\n\nMEMORANDUM OPINION FOR THE FILES\nThis memorandum expands upon a letter opinion for the Counsel to the\nPresident issued on May 1, 2017, in which we addressed certain questions\nconcerning the authority of individual members of Congress to exercise\nCongress\xe2\x80\x99s oversight authority. Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, 41 Op. O.L.C. __\n(2017) (\xe2\x80\x9cOversight by Individual Members\xe2\x80\x9d). This memorandum also\nmemorializes more recent, informal advice provided to the General Counsel of the National Archives and Records Administration (\xe2\x80\x9cNARA\xe2\x80\x9d)\nconcerning the authority of individual members to request presidential\nrecords under the Presidential Records Act (\xe2\x80\x9cPRA\xe2\x80\x9d).\nIn Oversight by Individual Members, we concluded that \xe2\x80\x9cthe constitutional authority to conduct oversight\xe2\x80\x94that is, the authority to make official inquiries into and to conduct investigations of Executive Branch\nprograms and activities\xe2\x80\x94may be exercised only by each House of Congress or, under a delegation, by committees and subcommittees (or their\nchairmen).\xe2\x80\x9d Id. at *1. \xe2\x80\x9cIndividual members of Congress, including ranking minority members,\xe2\x80\x9d we stated, \xe2\x80\x9cdo not have the authority to conduct\noversight in the absence of a specific delegation by a full house, committee, or subcommittee.\xe2\x80\x9d Id.\nOversight by Individual Members \xe2\x80\x9cbriefly explained\xe2\x80\x9d our views concerning requests for information from individual members of Congress.\n1\n\n\x0c43 Op. O.L.C. __ (Feb. 13, 2019)\n\nId. The Supreme Court has defined the congressional oversight authority\nto consist of the inherent power of each House to \xe2\x80\x9cgather information in\naid of its legislative function\xe2\x80\x9d by means of compulsion, if necessary. Id.\nEach House has the authority to delegate that function under its own rules\nand procedures. Typically, however, Congress has not delegated such\nauthority to individual members of Congress who are not committee\nchairmen. Although requests for information from individual members of\nCongress do not constitute exercises of Congress\xe2\x80\x99s oversight authority,\nthat does not mean that an individual member\xe2\x80\x99s request should be treated\nthe same as a Freedom of Information Act request or a request from a\nmember of the general public. As a matter of comity, the Executive\nBranch\xe2\x80\x99s appropriate respect for the legislative functions of individual\nmembers supports Executive Branch officials\xe2\x80\x99 practice of giving due\nweight and sympathetic consideration to those requests.\nWe recently addressed a related question in connection with the Senate\nJudiciary Committee\xe2\x80\x99s request for presidential records relevant to the\nnomination of then-Judge Brett Kavanaugh to the Supreme Court. In July\n2018, the Chairman of the Judiciary Committee requested from NARA\nspecial access to a substantial volume of records concerning Kavanaugh\xe2\x80\x99s\nservice in the Office of the White House Counsel during the George W.\nBush Administration. Following that request, the Ranking Member of the\nCommittee requested additional records\xe2\x80\x94those relating to Kavanaugh\xe2\x80\x99s\nsubsequent work as Staff Secretary\xe2\x80\x94that the Chairman had specifically\ndeclined to request. The PRA provides that a committee of Congress may\nrequest nonpublic records when needed for the conduct of its business. 44\nU.S.C. \xc2\xa7 2205(2)(C). Consistent with NARA\xe2\x80\x99s past administration of this\nstatute, as well as our interpretation of a similar provision under the\nPrivacy Act, we informally advised NARA that only a committee chairman may request presidential records under section 2205(2)(C), unless the\ncommittee has specifically delegated that authority to another member.\nI.\nThe Constitution vests \xe2\x80\x9c[a]ll legislative Powers\xe2\x80\x9d in \xe2\x80\x9ca Congress of the\nUnited States, which shall consist of a Senate and House of Representatives.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 1. The Supreme Court has recognized that one\nof those legislative powers is the implicit authority of each House of\nCongress to gather information in aid of its legislative function. See\n2\n\n\x0cRequests by Individual Members of Congress for Executive Branch Information\n\nMcGrain v. Daugherty, 273 U.S. 135, 174 (1927). As the Court has explained, \xe2\x80\x9c[a] legislative body cannot legislate wisely or effectively in the\nabsence of information respecting the conditions which the legislation is\nintended to affect or change; and where the legislative body does not itself\npossess the requisite information\xe2\x80\x94which not infrequently is true\xe2\x80\x94\nrecourse must be had to others who do possess it.\xe2\x80\x9d Id. at 175. Because\n\xe2\x80\x9cmere requests for such information often are unavailing, and . . . information which is volunteered is not always accurate or complete,\xe2\x80\x9d though,\n\xe2\x80\x9csome means of compulsion are essential to obtain what [information] is\nneeded.\xe2\x80\x9d Id.; see also Eastland v. U.S. Servicemen\xe2\x80\x99s Fund, 421 U.S. 491,\n504 (1975) (\xe2\x80\x9c[I]ssuance of subpoenas . . . has long been held to be a\nlegitimate use by Congress of its power to investigate.\xe2\x80\x9d); Response to\nCongressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 Op. O.L.C. 68, 81\xe2\x80\x9382 (1986) (\xe2\x80\x9cResponse to Congressional Requests\xe2\x80\x9d). For purposes of this memorandum,\nwe refer to each House\xe2\x80\x99s formal \xe2\x80\x9cpower of inquiry . . . with process to\nenforce it,\xe2\x80\x9d McGrain, 273 U.S. at 174, as that House\xe2\x80\x99s \xe2\x80\x9coversight\xe2\x80\x9d authority.\nEach house may exercise its oversight authority directly\xe2\x80\x94for example,\nby passing a resolution of inquiry seeking information from the Executive\nBranch. See 4 Lewis Deschler, Deschler\xe2\x80\x99s Precedents of the United States\nHouse of Representatives ch. 15, \xc2\xa7 2, at 2304\xe2\x80\x9323 (1994) (describing the\npractice of resolutions of inquiry and providing examples); Floyd M.\nRiddick & Alan S. Frumin, Riddick\xe2\x80\x99s Senate Procedure 882 (1992) (\xe2\x80\x9cThe\nSenate itself could investigate or hear witnesses as it has on rare occasions[.]\xe2\x80\x9d). In modern practice, however, each House typically employs its\noversight authority \xe2\x80\x9cthrough delegations of authority to its committees,\nwhich act either through requests by the committee chairman, speaking on\nbehalf of the committee, or through some other action by the committee\nitself.\xe2\x80\x9d Application of Privacy Act Congressional-Disclosure Exception to\nDisclosures to Ranking Minority Members, 25 Op. O.L.C. 289, 289\n(2001) (\xe2\x80\x9cApplication of Privacy Act\xe2\x80\x9d); see also Alissa Dolan et al., Cong.\nResearch Serv., Congressional Oversight Manual 65 (Dec. 19, 2014).\n\xe2\x80\x9cThe theory of a committee inquiry is that the committee members are\nserving as the representatives of the parent assembly in collecting information for a legislative purpose\xe2\x80\x9d and, in such circumstances, \xe2\x80\x9ccommittees\nand subcommittees, sometimes one Congressman,\xe2\x80\x9d are authorized to\n\n3\n\n\x0c43 Op. O.L.C. __ (Feb. 13, 2019)\n\nexercise the parent assembly\xe2\x80\x99s authority. Watkins v. United States, 354\nU.S. 178, 200\xe2\x80\x9301 (1957).\nThe Senate authorizes committees, \xe2\x80\x9cincluding any subcommittee of any\nsuch committee,\xe2\x80\x9d to hold hearings, subpoena witnesses, and require the\nproduction of \xe2\x80\x9ccorrespondence, books, papers, and documents,\xe2\x80\x9d Senate\nRule XXVI(1), while the House authorizes \xe2\x80\x9ca committee or subcommittee\xe2\x80\x9d to exercise similar authority, House Rule XI.2(m)(1). In turn, a committee\xe2\x80\x99s chairman generally may act on behalf of the committee, at least\nin the absence of a contrary vote of the majority of its members. See\nLetter for David S. Ferriero, Archivist of the United States, National\nArchives and Records Administration, from Chuck Grassley, Chairman,\nU.S. Senate Committee on the Judiciary at 2 (July 30, 2018); see, e.g.,\nHouse Rule XI.2(m)(3) (providing that the full committee determines the\n\xe2\x80\x9crules\xe2\x80\x9d and \xe2\x80\x9climitations\xe2\x80\x9d for a delegation to a chair). Although the procedures for these compulsory processes vary based on the issuing committee\nor subcommittee, they all derive their authority from a delegation by the\nrelevant House as a whole. See, e.g., Response to Congressional Requests,\n10 Op. O.L.C. at 82 (\xe2\x80\x9cexercise of subpoena power must be authorized by\nthe relevant House\xe2\x80\x9d (citing Reed v. County Comm\xe2\x80\x99rs, 277 U.S. 376, 389\n(1928), and McGrain, 273 U.S. at 158)); Congressional Oversight Manual\nat 24 (\xe2\x80\x9cCommittees of Congress only have the power to inquire into\nmatters within the scope of the authority delegated to them by their parent\nbody.\xe2\x80\x9d).\nBy contrast, individual members of Congress who are not serving as the\nchairman of a committee, including ranking minority members, \xe2\x80\x9cgenerally\ndo not act on behalf of congressional committees.\xe2\x80\x9d Application of Privacy\nAct, 25 Op. O.L.C. at 289; see also id. at 289\xe2\x80\x9390 (concluding that \xe2\x80\x9cthe\nPrivacy Act\xe2\x80\x99s congressional-disclosure exception does not generally apply\nto disclosures to ranking minority members,\xe2\x80\x9d because ranking minority\nmembers \xe2\x80\x9care not authorized to make committee requests, act as the\nofficial recipient of information for a committee, or otherwise act on\nbehalf of a committee\xe2\x80\x9d). Under existing congressional rules, those members have not been delegated the authority to institute official committee\ninvestigations, hold hearings, or issue subpoenas. See Congressional\nOversight Manual at 65. For example, the Rules of the House state that a\nsubpoena generally \xe2\x80\x9cmay be authorized and issued . . . only when authorized by the committee or subcommittee, a majority being present,\xe2\x80\x9d except\nthat the committee may delegate subpoena power to a chairman. House\n4\n\n\x0cRequests by Individual Members of Congress for Executive Branch Information\n\nRule XI.2(m)(3)(A)(i); see also Response to Congressional Requests, 10\nOp. O.L.C. at 82 (\xe2\x80\x9cThe rules of each [House] committee flesh out somewhat the requirements for issuance of a subpoena, specifying in particular\nif, or under what circumstances, the chairman of the full committee may\nissue a subpoena without a vote of the committee.\xe2\x80\x9d); Michael L. Koempel,\nCong. Research Serv., R44247, A Survey of House and Senate Committee\nRules on Subpoenas 4\xe2\x80\x9310 (Jan. 29, 2018) (summarizing House rules). The\nStanding Rules of the Senate delegate to each committee responsibility to\nestablish subpoena procedures, Senate Rule XXVI(2), and while some of\nthose committees delegate subpoena authority to a chairman, none authorizes an individual member who is not a chairman to issue a subpoena\nunilaterally. See A Survey of House and Senate Committee Rules on Subpoenas at 11\xe2\x80\x9316 (summarizing Senate rules).\nFederal courts have recognized that \xe2\x80\x9cno Senator and no Representative,\nis free on . . . his own to conduct investigations\xe2\x80\x9d without congressional\nauthorization. Gojack v. United States, 384 U.S. 702, 716 (1966); see\nExxon Corp. v. FTC, 589 F.2d 582, 593 (D.C. Cir. 1978) (\xe2\x80\x9c[D]isclosure of\ninformation can only be compelled by authority of Congress, its committees or subcommittees, not solely by individual members; and only for\ninvestigations and congressional activities.\xe2\x80\x9d); Lee v. Kelley, 99 F.R.D.\n340, 342 n.2 (D.D.C. 1983) (denying Senator leave to intervene to request\naccess to sealed materials on the grounds that the Senator \xe2\x80\x9cappears as an\nindividual Senator, without Senate authorization, in what is undeniably\nan investigatory role\xe2\x80\x9d), aff\xe2\x80\x99d sub nom. S. Christian Leadership Conf. v.\nKelley, 747 F.2d 777 (D.C. Cir. 1984). As the Congressional Research\nService has summarized, individual members of Congress not acting\npursuant to delegated oversight authority are entitled only to \xe2\x80\x9cthe voluntary cooperation of agency officials or private persons.\xe2\x80\x9d Congressional\nOversight Manual at 65 (emphasis added).\nII.\nThe distinction between Congress\xe2\x80\x99s constitutionally based oversight\nauthority and other congressional requests for information informs the\nExecutive Branch\xe2\x80\x99s obligations and practices when responding to such\nrequests. When a committee, subcommittee, or chairman exercising\ndelegated oversight authority asks for information from the Executive\nBranch, that request triggers the \xe2\x80\x9cimplicit constitutional mandate to seek\n5\n\n\x0c43 Op. O.L.C. __ (Feb. 13, 2019)\n\noptimal accommodation . . . of the needs of the conflicting branches.\xe2\x80\x9d\nUnited States v. Am. Tel. & Tel. (\xe2\x80\x9cAT&T \xe2\x80\x9d), 567 F.2d 121, 127 (D.C. Cir.\n1977); see also id. at 130\xe2\x80\x9331 (describing the \xe2\x80\x9c[n]egotiation between the\ntwo branches\xe2\x80\x9d as \xe2\x80\x9ca dynamic process affirmatively furthering the constitutional scheme\xe2\x80\x9d); Assertion of Executive Privilege in Response to a\nCongressional Subpoena, 5 Op. O.L.C. 27, 31 (1981) (\xe2\x80\x9cThe accommodation required . . . is an obligation of each branch to make a principled\neffort to acknowledge, and if possible to meet, the legitimate needs of\nthe other branch.\xe2\x80\x9d). Such requests are enforceable by the issuance of a\nsubpoena and the potential for contempt-of-Congress proceedings. See\nMcGrain, 273 U.S. at 174; 2 U.S.C. \xc2\xa7\xc2\xa7 192, 194; see also Senate Rule\nXXVI(1); House Rule XI.2(m)(1).\nRegardless of whether the chairman or committee has served a subpoena, the Executive Branch will work to accommodate the committee\xe2\x80\x99s\nlegitimate oversight needs, because a request for information is itself a\nvalid exercise of Congress\xe2\x80\x99s oversight authority. The Executive Branch\nneed not, and rarely does, insist upon the service of a subpoena or other\ncompulsory process. Upon receipt of any request made by a committee,\nthe Executive Branch\xe2\x80\x99s longstanding policy has been to engage in the\naccommodation process by supplying the requested information \xe2\x80\x9cto the\nfullest extent consistent with the constitutional and statutory obligations\nof the Executive Branch.\xe2\x80\x9d Memorandum for the Heads of Executive\nDepartments and Agencies from Ronald Reagan, Re: Procedures Governing Responses to Congressional Requests for Information (Nov. 4, 1982).\nIn contrast with a committee request, a letter or inquiry from an individual member or members of Congress is not made \xe2\x80\x9cpursuant to Congress\xe2\x80\x99s constitutional authority to conduct oversight and investigations.\xe2\x80\x9d\nCongressional Oversight Manual at 56. As a result, while the Executive\nBranch often will respond to and cooperate with such a request, the request differs from an oversight request and does not trigger the \xe2\x80\x9cimplicit\nconstitutional mandate to seek optimal accommodation\xe2\x80\x9d that a request\nfrom a committee or chairman exercising Congress\xe2\x80\x99s delegated oversight\nauthority would trigger. AT&T, 567 F.2d at 127.\nThese distinctions between requests for information made by a chairman or committee and requests made by individual members of Congress\ndo not mean that individual members have no need for information from\nExecutive Branch officials, or that Executive Branch officials should\n6\n\n\x0cRequests by Individual Members of Congress for Executive Branch Information\n\ndisregard their requests. \xe2\x80\x9cSenators\xe2\x80\x9d and \xe2\x80\x9cRepresentatives\xe2\x80\x9d compose\nCongress as an institution, U.S. Const. art. I, \xc2\xa7\xc2\xa7 1\xe2\x80\x933, and each member of\nCongress \xe2\x80\x9cparticipates in the law-making process\xe2\x80\x9d and \xe2\x80\x9chas a voice and a\nvote in that process.\xe2\x80\x9d Murphy v. Dep\xe2\x80\x99t of the Army, 613 F.2d 1151, 1157\n(D.C. Cir. 1979). Individual members, even those who are not chairmen\nof committees that have been delegated the oversight authority of a House\nof Congress, thus may \xe2\x80\x9crequest . . . information from the executive agencies\xe2\x80\x9d about Executive Branch programs or activities\xe2\x80\x94whether for legislation, constituent service, committee activities, or other purposes arising\nfrom members\xe2\x80\x99 legislative \xe2\x80\x9cresponsibilities\xe2\x80\x9d (such as Senators\xe2\x80\x99 role in\nproviding advice and consent for presidential appointments). Id.\nThe Executive Branch has historically exercised discretion in determining whether and how to respond to requests for information from individual members of Congress. Individual members often have legitimate\ninterests in seeking information from Executive Branch officials, and\nproviding this information can aid individual members in carrying out\ntheir legislative responsibilities. When individual members are requesting\ninformation in their official capacity on their own behalf, and not acting\non behalf of a body of Congress, an Executive Branch policy of providing\ngood-faith responses to their requests exhibits a proper respect for members of a coordinate branch of the government. Departments and agencies,\ntherefore, appropriately give due weight and sympathetic consideration to\nrequests for information from individual members of Congress.*\n\n* In response to a letter from Senator Grassley expressing concerns with Oversight by\nIndividual Members, the White House Director of Legislative Affairs issued a policy\nstatement regarding requests from individual members on July 20, 2017. That statement\nprovides, consistent with our conclusion here, that\n[t]he Administration\xe2\x80\x99s policy is to respect the rights of all individual Members, regardless of party affiliation, to request information about Executive Branch policies\nand programs. The Administration will use its best efforts to be as timely and responsive as possible in answering such requests consistent with the need to prioritize requests from congressional Committees, with applicable resource constraints,\nand with any legitimate confidentiality or other institutional interest of the Executive Branch. Moreover, this policy will also apply to other matters on which individual Members may have an interest, whether it be considering possible legislation, evaluating nominees for confirmation, or providing service to constituents.\nLetter for Charles E. Grassley, Chairman, U.S. Senate Committee on the Judiciary, from\nMarc Short, Director of Legislative Affairs, The White House at 2 (July 20, 2017).\n\n7\n\n\x0c43 Op. O.L.C. __ (Feb. 13, 2019)\n\nIn doing so, the Executive Branch may\xe2\x80\x94and often does\xe2\x80\x94provide information to individual members that is more than what is required under\nthe Freedom of Information Act (\xe2\x80\x9cFOIA\xe2\x80\x9d), 5 U.S.C. \xc2\xa7 552. FOIA generally requires only that a department or agency release certain records in its\ncustody. It does not require the department or agency to explain existing\npolicies or to create documents that do not already exist. See Kissinger v.\nReporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980)\n(FOIA \xe2\x80\x9cdoes not obligate agencies to create or retain documents; it only\nobligates them to provide access to those which it in fact has created and\nretained\xe2\x80\x9d). Yet the Executive Branch often responds to requests by members of Congress with correspondence that answers substantive questions,\nsupplies a reasoned justification for existing policy, or explains why the\nExecutive Branch\xe2\x80\x99s established confidentiality interests preclude it from\nproviding requested information. Such discretionary responses also furnish the department or agency with an opportunity to correct misperceptions or inaccurate factual statements that may be the basis for a request.\nBy the same token, departments and agencies often prioritize their responses to the members\xe2\x80\x99 requests in a manner that differs from ordinary\nFOIA requests submitted by members of the general public.\nAlthough departments and agencies will generally respond to requests\nfrom individual members of Congress, we recognize that they may decline\nto provide information to individual members when doing so would, for\nexample, be overly burdensome; would inhibit the Executive\xe2\x80\x99s responsibility to protect information that is privileged, confidential, or otherwise\nprotected by law; or would interfere with the ability to respond in a timely\nmanner to requests for information submitted pursuant to Congress\xe2\x80\x99s\noversight authority.\nOur treatment of requests for information from individual members of\nCongress is consistent with the D.C. Circuit\xe2\x80\x99s decision in Murphy v.\nDepartment of the Army. Murphy held that memoranda withheld from\ndisclosure in response to a FOIA request did not lose their statutorily\nexempt character as a result of disclosure to an individual member of\nCongress. In reaching this holding, the court pointed to then-5 U.S.C.\n\xc2\xa7 552(c), which provided that FOIA \xe2\x80\x9cis not authority to withhold information from Congress.\xe2\x80\x9d 613 F.2d at 1155. The court reasoned that, \xe2\x80\x9cto the\nextent that Congress has reserved to itself in section 552(c) the right to\nreceive information not available to the general public, and actually does\nreceive such information pursuant to that section . . . , no waiver occurs of\n8\n\n\x0cRequests by Individual Members of Congress for Executive Branch Information\n\nthe privileges and exemptions which are available to the executive branch\nunder the FOIA with respect to the public at large.\xe2\x80\x9d Id. at 1156. The court\nfound \xe2\x80\x9cno basis in the statute or in public policy for distinguishing for\nFOIA purposes between a congressional committee and a single Member\nacting in an official capacity,\xe2\x80\x9d on the grounds that \xe2\x80\x9c[a]ll Members have a\nconstitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to\nexecutive information.\xe2\x80\x9d Id. at 1157.\nMurphy\xe2\x80\x99s holding\xe2\x80\x94that, in light of section 552(c), disclosure of materials to an individual member of Congress does not waive the FOIA\nexemptions that are available for requests from the public\xe2\x80\x94does not\nerode the legal distinction between requests for information made by a\ncommittee (pursuant to Congress\xe2\x80\x99s delegated oversight authority) and\nrequests made by individual members of Congress. Murphy involved the\nstatutory meaning of the word \xe2\x80\x9cCongress\xe2\x80\x9d \xe2\x80\x9cfor FOIA [exemption] purposes,\xe2\x80\x9d which the court read to include individual members of Congress.\nId.; see id. at 1158 (\xe2\x80\x9cWhat is at issue is the construction to be given to\n[section 552(c)] which safeguards congressional access to executive\ninformation notwithstanding the FOIA exemptions and the relationship of\nthat provision to the question of when confidentiality is waived or destroyed by disclosure to a third party.\xe2\x80\x9d). To be sure, Murphy recognized\nthe significant role that individual members play in congressional processes as providing support for reading \xe2\x80\x9cCongress\xe2\x80\x9d to include individual\nmembers. But the court\xe2\x80\x99s point was that FOIA was not designed to stymie\nthe flow of information between Executive Branch agencies and individual members by subjecting those materials to a waiver of privilege. That\nholding is entirely consistent with the view that there is a distinction\nbetween a committee request, which is an exercise of Congress\xe2\x80\x99s delegated oversight authority, and a request made by an individual member.\nThis understanding of Murphy is supported by an opinion by Judge\nWald concurring in part and dissenting in part in a D.C. Circuit decision\nissued a few months after Murphy. See FTC v. Owens-Corning Fiberglas\nCorp., 626 F.2d 966, 975\xe2\x80\x9379 (1980). There, Judge Wald (who formerly\nserved as Assistant Attorney General for the Office of Legislative Affairs)\nemphasized that only a \xe2\x80\x9cformal\xe2\x80\x9d congressional request, such as a letter or\nsubpoena from a committee, would qualify for an exception to a statutory\nprohibition on the disclosure of trade-secret information. Two pre-Murphy\nD.C. Circuit cases had held that the Federal Trade Commission\xe2\x80\x99s disclo9\n\n\x0c43 Op. O.L.C. __ (Feb. 13, 2019)\n\nsure of trade secret information to congressional committees was \xe2\x80\x9cnot a\npublic disclosure forbidden by\xe2\x80\x9d the Federal Trade Commission Act (\xe2\x80\x9cFTC\nAct\xe2\x80\x9d). Id. at 970 (majority opinion) (citing Exxon, 589 F.2d at 589, and\nAshland Oil, Inc. v. FTC, 548 F.2d 977, 979 (D.C. Cir. 1976)). OwensCorning also concerned disclosure in response to a \xe2\x80\x9cformal request\xe2\x80\x9d from\na committee, and the majority opinion relied on those cases to support its\nconclusion that the disclosure at issue was permissible under the FTC Act.\nSee id. at 970, 974. However, a passing reference in the opinion to the\nrecently decided Murphy, see id. at 974 & n.16, elicited a strong dissent\nfrom Judge Wald:\nThe majority opinion\xe2\x80\x99s footnote 16, suggesting that a single Congressman\xe2\x80\x99s request for confidential information protected by [the\nFTC Act], even though the request is unauthorized by any committee\nor subcommittee of Congress, may stand on the same footing as a\nduly authorized committee or subcommittee request, is especially\ntroubling. . . .\nI cannot agree with the majority\xe2\x80\x99s citation of [Murphy] to support\ntheir position. . . .\nDuly authorized Congressional requests were judicially recognized as a narrow exception [under the FTC Act] in Exxon; therefore, it is doubly important to insure that these requests are authorized ones. The majority too casually dismisses Exxon in this regard.\nNo Member of Congress, acting on his own, has yet been judicially\ndeclared to have access rights to subpoenaed trade secret material for\nhis own individually-defined legislative purposes, no matter how legitimate his interest.\nTo suggest that Murphy may expand Exxon\xe2\x80\x99s limited access [for\ncommittees] to cover any Member acting individually is to seriously\ndilute the protections of [the FTC Act], and even to undermine the\nduly constituted authority and processes of Congress. The Legislative branch operates in the sensitive area of trade secret disclosure\nwith its coordinate branch, the Executive, through the structure and\ndelegated powers of Congressional committees and subcommittees.\nOnly if the Executive and the courts honor that structure will the\nLegislature itself, as well as agencies, be able to assure subpoenaed\nparties that their trade secret material is not subject to indiscriminate\n\n10\n\n\x0cRequests by Individual Members of Congress for Executive Branch Information\n\ndisclosure to any or all of the 535 Members of Congress with diverse\npolitical and legislative interests.\nId. at 978\xe2\x80\x9379 (Wald, J., concurring in part and dissenting in part).\nOur consideration of congressional access to Executive Branch privileged information raises many of the concerns addressed by Judge Wald\nin her consideration of congressional access to statutorily protected trade\nsecret information. Her rationale for distinguishing between requests from\ncommittees and individual members applies as well in the context of\nCongress\xe2\x80\x99s constitutional oversight authority as it does in the context of\ncongressional requests under the FTC Act. Extending Murphy outside its\nFOIA context to apply to individual-member requests for information\nprotected by executive privilege would intrude upon a comparably \xe2\x80\x9csensitive area\xe2\x80\x9d in which the Executive Branch has recognized that Congress\noperates \xe2\x80\x9cthrough the structure and delegated powers of Congressional\ncommittees and subcommittees.\xe2\x80\x9d Id. at 979. Giving the same access rights\nto individual members would also \xe2\x80\x9cseriously dilute\xe2\x80\x9d the protections that\nthe accommodation process provides for the Executive Branch\xe2\x80\x99s privileged information and \xe2\x80\x9cundermine the duly constituted authority and\nprocesses of Congress.\xe2\x80\x9d Id. at 978\xe2\x80\x9379. To say that the Executive Branch\nshould provide respectful consideration to a request from a member of\nCongress is not to say that each and every member may be viewed as\nexercising the oversight responsibilities that the Constitution entrusts\ncollectively to each House of Congress.\nIII.\nWe recently confronted a similar issue in advising NARA about the\nrights of individual Senators who were seeking records under the PRA\nrelated to the nomination of then-Judge Kavanaugh to the Supreme Court.\nIn July and August 2018, we informally advised NARA that only a congressional committee or its chairman has authority to request presidential\nrecords under the PRA, unless the committee specifically delegates that\nauthority to another member.\nThe PRA restricts access to presidential records after they are accessioned to NARA at the end of a President\xe2\x80\x99s tenure in office. See 44 U.S.C.\n\xc2\xa7\xc2\xa7 2203(f ), 2204. The PRA includes various exceptions to its restrictions\non access, one of which provides that\n11\n\n\x0c43 Op. O.L.C. __ (Feb. 13, 2019)\n\nsubject to any rights, defenses, or privileges which the United States\nor any agency or person may invoke, Presidential records shall be\nmade available . . . to either House of Congress, or, to the extent of\nmatter within its jurisdiction, to any committee or subcommittee\nthereof if such records contain information that is needed for the\nconduct of its business and that is not otherwise available.\nId. \xc2\xa7 2205(2)(C). The congressional exception provides that, under appropriate circumstances, NARA may provide access to nonpublic presidential\nrecords in response to a request from either House of Congress or any\ncommittee or subcommittee thereof.\nConsistent with Application of Privacy Act, 25 Op. O.L.C. 289, we advised NARA that no individual member of a congressional committee\nother than its chairman is authorized to speak for or otherwise represent\nthe committee for purposes of the PRA\xe2\x80\x99s congressional exception, absent\nan express delegation of authority from the committee to that member.\nThe relevant PRA language in section 2205(2)(C) is identical to the\nPrivacy Act language in 5 U.S.C. \xc2\xa7 552a(b)(9), which we considered in\nApplication of Privacy Act. In that opinion, we concluded that this language \xe2\x80\x9cprohibits the disclosure of Privacy Act-protected information to\n[a] ranking minority member,\xe2\x80\x9d absent an express authorization from the\ncommittee. 25 Op. O.L.C. at 289. We explained that \xe2\x80\x9c[e]xcept where the\nSenate or House exercises its investigative and oversight authority directly, . . . each House of Congress exercises its investigative and oversight\nauthority through delegations of authority to its committees,\xe2\x80\x9d which in\nturn often delegate that authority to chairmen. Id. In contrast, \xe2\x80\x9c[a]s a\ngeneral matter, ranking minority members are not authorized to make\ncommittee requests, act as the official recipient of information for a\ncommittee, or otherwise act on behalf of a committee.\xe2\x80\x9d Id.; see supra\npp. 4\xe2\x80\x935. Accordingly, \xe2\x80\x9calthough the congressional-disclosure exception to\nthe Privacy Act disclosure prohibition is available for disclosures to either\nHouse of Congress or to a committee of Congress,\xe2\x80\x9d we concluded that a\n\xe2\x80\x9cdisclosure of Privacy Act information solely to a ranking minority member is not a disclosure to the committee\xe2\x80\x9d because \xe2\x80\x9cranking minority members generally do not act on behalf of congressional committees.\xe2\x80\x9d Application of Privacy Act, 25 Op. O.L.C. at 289\xe2\x80\x9390. \xe2\x80\x9c[T]he congressionaldisclosure exception is therefore unavailable.\xe2\x80\x9d Id.\n\n12\n\n\x0cRequests by Individual Members of Congress for Executive Branch Information\n\nSo, too, under the PRA, no individual member of a committee other\nthan its chairman may act on behalf of a committee, absent a specific\ndelegation of authority to that effect, and thus disclosure to the individual\nmember does not qualify as disclosure to the committee under the statutory exception to restrictions on access. 44 U.S.C. \xc2\xa7 2205(2)(C). Nothing in\nthe PRA suggests that Congress intended those terms to function differently in the PRA than in the Privacy Act. On the contrary, Congress used\nthe same language in both statutes, enacted only a few years apart, to\nestablish a similar congressional exception to prohibitions on disclosure.\nThese similarities are \xe2\x80\x9cstrong indication[s] that the two statutes should be\ninterpreted pari passu.\xe2\x80\x9d Northcross v. Bd. of Educ., 412 U.S. 427, 428\n(1973) (per curiam); see also Smith v. City of Jackson, 544 U.S. 228, 233\n(2005) (plurality opinion) (\xe2\x80\x9c[W]hen Congress uses the same language in\ntwo statutes having similar purposes, particularly when one is enacted\nshortly after the other, it is appropriate to presume that Congress intended\nthat text to have the same meaning in both statutes.\xe2\x80\x9d).\nThis interpretation of section 2205(2)(C) is consistent with NARA\xe2\x80\x99s\nlongstanding administration of the statute. See Application of Privacy Act,\n25 Op. O.L.C. at 290 (noting that the conclusion that the Privacy Act\nprohibits disclosure to ranking minority members \xe2\x80\x9cfollows the longstanding Executive Branch practice on this question\xe2\x80\x9d). NARA informed us that\nit has always understood the PRA to give authority to request records only\nto the chairman of a committee or the committee itself, and that NARA\nhas relied on Application of Privacy Act in concluding that ranking minority members could not make requests under section 2205(2)(C). For\nexample, NARA declined to process requests from the Ranking Members\nof the Senate Judiciary Committee in connection with the nomination of\nEric Holder as Attorney General and again with respect to the nomination\nof Elena Kagan to the Supreme Court. NARA\xe2\x80\x99s position with respect to\nthe Kavanaugh nomination therefore was consistent with prior Executive\nBranch practice regarding section 2205(2)(C).\nIV.\nIn reviewing requests from Congress, the Executive Branch\xe2\x80\x99s longstanding policy has been to engage in the established process for working\nto accommodate congressional requests for information only when those\nrequests come from a committee, subcommittee, or chairman acting pur13\n\n\x0c43 Op. O.L.C. __ (Feb. 13, 2019)\n\nsuant to oversight authority delegated from a House of Congress. Departments and agencies, however, may appropriately give due weight and\nsympathetic consideration to requests for information from individual\nmembers of Congress not delegated such authority.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n14\n\n\x0c'


b'Disclosure of Conflicts of Interest of Members of\nFDA Advisory Panels\nSpecial government employees who serve as members of a Food and Drug Administration advisory\npanel and who seek waivers of conflicts of interest must publicly disclose any conflicts of interest\nthey may have that relates to the work to be undertaken by the panel. The FDA may not waive a\npanel member\xe2\x80\x99s conflict until the panel member makes the public disclosure.\nThe FDA has considerable discretion to determine how detailed the panel member\xe2\x80\x99s disclosure must\nbe, so long as such disclosure is adequate to inform the public of the nature and magnitude of the\nconflict.\n\nOctober 5, 2001\n\nMEMORANDUM OPINION FOR THE CHIEF COUNSEL\nFOOD AND DRUG ADMINISTRATION\nYou have asked for our opinion whether the Food and Drug Administration\n(\xe2\x80\x9cFDA\xe2\x80\x9d), in granting conflict of interest waivers to special government employees\nserving as members of FDA advisory panels on new drugs and biological products\n(\xe2\x80\x9cdrug advisory panels\xe2\x80\x9d), must require panel members to disclose publicly their\nconflicts of interest. You have further informed us that the FDA\xe2\x80\x99s current practice\nwith respect to waivers of such conflicts of interest is to disclose the fact that a\nparticular panel member has been granted a waiver of a conflict, but not to identify\nthe nature of the conflict or provide any further details. See Memorandum for\nDaniel Troy, Chief Counsel, from Matthew Eckel, Associate Chief Counsel, Food\nand Drug Administration, Re: Request for Advice from Office of Legal Counsel,\nDepartment of Justice Concerning Disclosure of Advisory Committee Member\nConflicts of Interest (Sept. 17, 2001) (\xe2\x80\x9cFDA Memorandum\xe2\x80\x9d).\nAs discussed below, we conclude that special government employees who\nserve as members of an FDA drug advisory panel and who seek waivers of\nconflicts of interest must publicly disclose any conflicts of interest they may have\nthat relate to the work to be undertaken by the panel. 1 The FDA may not waive a\npanel member\xe2\x80\x99s conflict until the panel member makes the public disclosure. The\nFDA has considerable discretion to determine how detailed the panel member\xe2\x80\x99s\ndisclosure must be, so long as such disclosure is adequate to inform the public of\nthe nature and magnitude of the conflict.\n\n1\nWe have not been asked to, and do not, opine on whether a drug advisory panel member must\npublicly disclose a conflict of interest that the member may have with a matter to be undertaken by the\npanel if the member, instead of seeking a waiver, chooses not to take part at all in the matter.\n\n220\n\n227-329 VOL_25_PROOF.pdf 230\n\n10/22/12 11:10 AM\n\n\x0cDisclosure of Conflicts of Interest of Members of FDA Advisory Panels\n\nI. Panel Members Must Publicly Disclose Their Conflicts of Interest\nSection 355(n) of title 21 provides that \xe2\x80\x9c[f]or the purpose of providing expert\nscientific advice and recommendations to the Secretary [of Health and Human\nServices] regarding a clinical investigation of a drug or the approval for marketing\nof a drug under section 355 of this title [(new drugs)] or section 262 of Title 42\n[(biological products)], the Secretary shall establish panels of experts or use panels\nof experts established before November 21, 1997, or both.\xe2\x80\x9d 21 U.S.C. \xc2\xa7 355(n)(1)\n(Supp. III 1997). Within 90 days after a drug advisory panel makes its recommendations, the FDA must review the panel\xe2\x80\x99s conclusions and recommendations and\nnotify the affected persons of any final decision. Id. \xc2\xa7 355(n)(8).\nSection 355(n)(4) sets out specific conflict of interest requirements for members of drug advisory panels:\nEach member of a panel shall publicly disclose all conflicts of interest that member may have with the work to be undertaken by the\npanel. No member of a panel may vote on any matter where the\nmember or the immediate family of such member could gain financially from the advice given to the Secretary. The Secretary may\ngrant a waiver of any conflict of interest requirement upon public\ndisclosure of such conflict of interest if such waiver is necessary to\nafford the panel essential expertise, except that the Secretary may not\ngrant a waiver for a member of a panel when the member\xe2\x80\x99s own scientific work is involved.\nId. \xc2\xa7 355(n)(4). Thus, the plain terms of section 355(n)(4) require that each\nmember of a drug advisory panel \xe2\x80\x9cpublicly disclose all conflicts of interest . . .\nwith the work to be undertaken by the panel\xe2\x80\x9d and that the Secretary not waive any\nsuch conflicts before public disclosure has occurred.\nYou have asked, however, whether various other statutes relating to conflict of\ninterest requirements for government employees should be read to negate or limit\nthe obligation that section 355(n)(4) imposes.\nPursuant to section 107(a)(1) of the Ethics in Government Act of 1978, as\namended, 5 U.S.C. app. \xc2\xa7\xc2\xa7 101-111 (2000) (\xe2\x80\x9cEGA\xe2\x80\x9d), the FDA requires each\nmember of a drug advisory panel to file a confidential financial disclosure report.\nSee FDA Memorandum at 2. Section 107(a)(2) in turn provides that \xe2\x80\x9c[a]ny\ninformation required to be provided by an individual under this subsection shall be\nconfidential and shall not be disclosed to the public.\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 107(a)(2).\nYou further note that the Office of Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d) has advised that\neven with the consent of the individual filer, the agency is barred by section\n107(a)(2) from publicly releasing information on the filer\xe2\x80\x99s financial disclosure\nreport. See Privacy of SF 450 Financial Disclosure Information and Waivers\nIssued to Advisory Committee Members under 18 U.S.C. \xc2\xa7 208(b)(3), Informal\n\n221\n\n227-329 VOL_25_PROOF.pdf 231\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nAdvisory Op. 93x34, at 4 (Nov. 16, 1993), available at http://www.oge.gov/OGEAdvisories/Legal-Advisories/Legal-Advisories/ (last visited May 24, 2012) (\xe2\x80\x9cOGE\nLetter\xe2\x80\x9d). 2 You therefore raise the question how section 107(a)(2) is to be read\ntogether with the plain language of section 355(n)(4).\nWe believe that section 107(a)(2) has no impact on how section 355(n)(4)\nshould be read. Section 355(n)(4) imposes a disclosure obligation not on the FDA,\nbut only on individuals who choose to be members of a drug advisory panel. The\nOGE Letter provides only that the filer\xe2\x80\x99s consent does not enable the agency to\nrelease the filer\xe2\x80\x99s financial disclosure report. The OGE Letter does not remotely\nsuggest that section 107(a)(2) bars the filer from publicly releasing his own\nfinancial disclosure report. (Indeed, any such bar, apart from having no evident\npurpose, would likely violate the First Amendment.) We therefore see no conflict\nbetween section 107(a)(2) and section 355(n)(4).\nBecause section 107(a)(2) and section 355(n)(4) do not conflict, FDA regulations that would implement section 355(n)(4)\xe2\x80\x99s command that drug advisory panel\nmembers publicly disclose their conflicts of interest would likewise not violate\nsection 107(a)(2). We note further that section 355(n)(4) could reasonably be read\nto contemplate that panel members use FDA resources to make public disclosure\nof their conflicts; in the event that the FDA so reads section 355(n)(4), we believe\nthat such an FDA role in facilitating panel members\xe2\x80\x99 disclosure would not violate\nsection 107(a)(2).\nYou present an argument that the federal criminal conflict of interest statute, 18\nU.S.C. \xc2\xa7 208 (1994), permits an agency to grant a special government employee\nan exemption from its prohibitions in certain circumstances, see id. \xc2\xa7 208(b)(3);\nthat an agency, in providing the public a copy of any determination granting such\nan exemption, may withhold from disclosure any information that would be\nexempt from disclosure under the Freedom of Information Act (\xe2\x80\x9cFOIA\xe2\x80\x9d), 5 U.S.C.\n\xc2\xa7 552 (2000), see 18 U.S.C. \xc2\xa7 208(d)(1); that FOIA exempts from its mandatory\ndisclosure requirements any information specifically exempted from disclosure by\nanother statute, see 5 U.S.C. \xc2\xa7 552(b)(3); and that the FDA, in granting a drug\n2\nThe OGE Letter further advises that \xe2\x80\x9c[t]he agency must observe the [section 107(a)(2)] constraint\nagainst release of the information on the form, even if the individual filer has discussed the same or\nsimilar information in another forum or the nature of certain of the filer\xe2\x80\x99s holdings may be known in his\nor her industry or community.\xe2\x80\x9d Id. at 5. Read broadly, this advice might mean that an agency may\nnever disclose information if that information happens to be contained in a financial disclosure report,\neven if the agency relied on an independent source to obtain the information. Under such a broad\nreading, an agency would be barred, for example, from disclosing a filer\xe2\x80\x99s business address if that\nbusiness address were contained in the filer\xe2\x80\x99s financial disclosure report, even if the agency relied on\nother records to determine the filer\xe2\x80\x99s business address (or even if that business address were in the\nphone book). Alternatively, the OGE advice may mean only that under section 107(a)(2) an agency\nmay not release a financial disclosure report or information obtained from that report but may still\nrelease information from independent sources, even if that information is also contained in the financial\ndisclosure report. We have not been asked to, and need not, decide which is the better reading of\nsection 107(a)(2).\n\n222\n\n227-329 VOL_25_PROOF.pdf 232\n\n10/22/12 11:10 AM\n\n\x0cDisclosure of Conflicts of Interest of Members of FDA Advisory Panels\n\nadvisory panel member an exemption under 18 U.S.C. \xc2\xa7 208(b)(3) from the\napplication of the criminal conflict of interest prohibitions, is therefore authorized\nnot to disclose information exempted from disclosure under section 107(a)(2) of\nthe EGA. See FDA Memorandum at 3-7. We see no need to address the merits of\nthis argument, for we do not believe that, even if correct, it is in any respect in\ntension with the plain language of section 355(n)(4). Just as we conclude above\nthat a bar on the FDA\xe2\x80\x99s disclosure of a drug advisory panel member\xe2\x80\x99s financial\ndisclosure report filed pursuant to the EGA is entirely consistent with section\n355(n)(4)\xe2\x80\x99s requirement that the member publicly disclose all conflicts of interest\nbefore obtaining a waiver, so we conclude here that the FDA\xe2\x80\x99s permissive\nauthority not to disclose the member\xe2\x80\x99s report would be consistent with that same\nrequirement.\nWe therefore conclude that none of the other statutory provisions you raise\nnegates or limits the application of section 355(n)(4).\nII. The FDA Has Discretion to Determine the Scope of the\nRequired Disclosure\nYou have also requested our opinion concerning the scope of any disclosure\nrequired under section 355(n)(4)\xe2\x80\x94in particular, the amount of background\nfinancial information a panel member must disclose with respect to a particular\nconflict of interest. See FDA Memorandum at 9, 12. The language of the statute\nprovides little guidance in interpreting the phrase \xe2\x80\x9cpublicly disclose all conflicts of\ninterest,\xe2\x80\x9d and thus appears to leave the agency some discretion in determining how\nbest to implement the statutory mandate. Indeed, just as the statute explicitly gives\nthe Secretary discretion to decide when the need for an individual\xe2\x80\x99s expertise\njustifies waiving a conflict of interest, we believe that it implicitly permits the\nSecretary, in developing administrative guidelines for disclosure, to consider the\ncompeting public interests at stake.\nIn enacting section 355(n)(4), Congress clearly sought to promote the strong\npublic interest in knowing whether individuals involved in the approval of new\ndrugs and biological products are potentially biased by conflicting financial\ninterests. Accordingly, any regulations implementing section 355(n)(4) must\nrequire an advisory panel member, before receiving a waiver of any conflict of\ninterest, to provide meaningful public disclosure that would adequately enable a\nreasonable person to understand the nature of the conflict and the degree to which\nit could be expected to influence the recommendations the member would make.\nMere identification of the conflicting interest may be insufficient to meet this\nstandard; it will often be necessary also to provide information concerning the\nmagnitude of a particular financial interest (e.g., whether it consists of a few\nshares of stock or a controlling interest in a company). On the other hand,\nCongress surely did not intend that the disclosure requirement should be so\n\n223\n\n227-329 VOL_25_PROOF.pdf 233\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nintrusive or onerous as to make many individuals unwilling to serve on advisory\npanels, as such a result would deprive the FDA of the \xe2\x80\x9cessential expertise\xe2\x80\x9d\nCongress intended the advisory panels to provide. The FDA may therefore tailor\nthe scope of the requirement so that it does not impose a greater burden than\nnecessary to achieve the statute\xe2\x80\x99s goal.\nM. EDWARD WHELAN III\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n224\n\n227-329 VOL_25_PROOF.pdf 234\n\n10/22/12 11:10 AM\n\n\x0c'


b'Application of the Federal Bribery Statute to Civilian\nAides to the Secretary of the Army\nA Civilian Aide to the Secretary of the Army is a public official who is barred by 18 U.S.C. \xc2\xa7\n201(c) from receiving anything of value because of an official action taken.\n\nJuly 12, 1989\nM e m e o r a n d u m O p in io n\n\nfor the\n\nD epartm en t\n\nof the\n\nG e n er a l C ounsel\nA rmy\n\nThis letter responds to your Office\xe2\x80\x99s request for an opinion on whether\nthe federal bribery statute, 18 U.S.C. \xc2\xa7 201(c), applies when a Civilian\nAide to the Secretary of the Army receives an offer for reimbursement of\nexpenses incurred in the discharge o f Civilian Aide duties.1\nWe agree, based on the statement o f facts in the Army Letter, that it\nwas reasonable for the Army to conclude that the Civilian Aide should\nnot accept the offer for reimbursement from the private, non-profit foun\xc2\xad\ndation for these services. Although there may be instances in which the\nconduct o f a Civilian Aide could give rise to a prosecution under section\n201(c), we do not believe that it would be useful or appropriate to spec\xc2\xad\nulate now regarding the legality o f future cases that may raise similar\nissues. Our reasons for these conclusions are set forth below.\n\nI. Background\nA Civilian Aide is a private citizen appointed by the Secretary o f the\nArmy to represent the civilian community. Army Regulation 1-15,\nCivilian Aides to the Secretary of the Arm y. Civilian Aides serve without\nsalary or other compensation by the federal government, although they\nmay receive reimbursement for certain travel expenses. A private, non\xc2\xad\nprofit foundation offered to pay the expenses incurred by one o f these\nCivilian Aides in the discharge o f her official duties, including the cost o f\nany secretarial services needed in the future.2 Your Office advised the\nCivilian Aide to decline the offer because o f your concern that the con\xc2\xad\n1Letter for Mr Douglas W Kmiec, A cting Assistant Attorney General, Office o f Legal Counsel, from\nDarrell L. Peck, Acting General Counsel, Department o f the Army (July 8, 1988) ( \xe2\x80\x9cArmy Letter\xe2\x80\x9d)\n2Arm y Letter at 1.\n\n202\n\n\x0ctribution might be prohibited by 18 U.S.C. \xc2\xa7 201(c). You have sought guid\xc2\xad\nance about what to do if this situation arises again.\n\nII. Analysis\nSection 201(c)(1)(B) o f the federal bribery statute subjects to criminal\nliability \xe2\x80\x9c [w]hoever \xe2\x80\x94 otherwise than as provided by law for the proper\ndischarge o f official duty \xe2\x80\x94 being a public official, ... directly or indirect\xc2\xad\nly ... accepts, or agrees to receive or accept anything o f value personally\nfor or because o f any official act performed or to be performed by such\nofficial or person.\xe2\x80\x9d The requirements for criminal liability under this pro\xc2\xad\nvision are three-fold: (1) the person must be a \xe2\x80\x9cpublic official\xe2\x80\x9d; (2) that\nofficial must accept or agree to receive anything o f value; and (3) the thing\nof value must be given for or because o f any official act by such official.\nA. Public official\n\nWe believe that a Civilian Aide would be considered a \xe2\x80\x9cpublic official\xe2\x80\x9d\nunder the statute. Section 201(a) defines a \xe2\x80\x9cpublic official,\xe2\x80\x9d in relevant\npart, as a \xe2\x80\x9cperson acting for or on behalf o f the United States, or any\ndepartment ... o f Government thereof ... in any official function, under\nor by authority o f any such department.\xe2\x80\x9d Civilian Aides act on behalf o f\nand by the authority o f the Department o f the Army. The Supreme Court\nhas enforced a broad construction o f the \xe2\x80\x9cpublic official\xe2\x80\x9d provision,\n\xe2\x80\x9cagreeing with the Government\xe2\x80\x9d that section 201 is a comprehensive\nstatute aimed at all who act on behalf o f the government. Dixson v.\nUnited States, 465 U.S. 482, 496 (1984). The Dixson court stated:\nTo determine whether any particular individual falls within\nthis category, the proper inquiry is not simply whether the\nperson had signed a contract with the United States or\nagreed to serve as the Government\xe2\x80\x99s agent, but rather\nwhether the person occupies a position of public trust with\nofficial federal responsibilities. Persons who hold such\npositions are public officials within the meaning o f \xc2\xa7 201\nand liable for prosecution under the federal bribery statute.\nId. In Dixson, the Court held that the term included \xe2\x80\x9cofficers o f a private,\n\nnonprofit corporation administering and expending federal community\ndevelopment block grants\xe2\x80\x9d because, as administrators of the subgrant,\nthey were responsible for a program that distributed federal funds\naccording to federal guidelines. Id. at 497.3 As the Dixson court noted,\n\xc2\xb0See also United Slates v Kirby, 587 F2d 876 (7th Cir. 1978) (grain inspector employed by private com \xc2\xad\npany but licensed by USDA was public official); United States v Gallegos, 510 F Supp. 1112 (D N.M.\nContinued\n\n203\n\n\x0csince the original enactment o f the bribery law in 1853 Congress has\nenacted successive statutes using \xe2\x80\x9cbroad jurisdictional language,\xe2\x80\x9d id. at\n491, and in keeping with this intent, the courts have broadly interpreted\nthe phrase \xe2\x80\x9cperson acting for or on behalf o f the United States.\xe2\x80\x9d Id. at 492.\nAlthough Civilian Aides are not federal employees, Army Regulation 115, \xc2\xa7 5(b), they perform numerous functions that would appear to meet\nthe test o f \xe2\x80\x9cacting for or on behalf of the United States.\xe2\x80\x9d See, e.g., Army\nRegulation 1-15, \xc2\xa7 4(d) (responsibility to provide \xe2\x80\x9cindividual advice\xe2\x80\x9d to\nthe Secretary o f the Army and others about public attitudes towards the\nArmy, to develop programs to attain maximum understanding and coop\xc2\xad\neration between the civilian community and the Army, and to disseminate\ninformation to the public about the Army\xe2\x80\x99s objectives); id. \xc2\xa7 13 (travel as\nCivilian Aide paid for by government as official travel); id. \xc2\xa7 10 (detailing\nCivilian Aides\xe2\x80\x99 access to classified information); id. \xc2\xa7 11 (same). This\nOffice previously has considered the duties and responsibilities o f the\nCivilian Aides in determining whether such aides were subject to the\nEmoluments Clause o f the Constitution. In that opinion, we noted that\nthe United States reposes great trust in the Aides, and relies\nupon them to perform various duties that further the\nnational defense.\nThese same attributes \xe2\x80\x94 the reposing of trust, the necessi\xc2\xad\nty o f undivided loyalty to the United States, the importance\no f the task performed by those who hold the office, per\xc2\xad\nsonalized selection and access to classified information \xe2\x80\x94\ncharacterize the \xe2\x80\x9coffice o f trust\xe2\x80\x9d for purposes o f the\nEmoluments Clause .... We have no difficulty concluding,\ntherefore, that the position o f Civilian Aide to the Secretary\no f the Army is an \xe2\x80\x9cOffice o f Trust\xe2\x80\x9d under the United States\nfor purpose o f the Emoluments Clause.4\nIn keeping with this view and consistent with the Dixson decision, we\nbelieve that Civilian Aides should be considered \xe2\x80\x9cpublic officials\xe2\x80\x9d for pur\xc2\xad\nposes o f 18 U.S.C. \xc2\xa7 201.\n3(. continued)\n1981) (em p loyee o f state government w h o worked under direct supervision o f federal official in admin\xc2\xad\nistration o f federal program was public officia l), United States v. G riffin, 401 F. Supp 1222 (S D. Ind\n1975), a ffd without opinion sub nom United States v Metro Management Corp., 541 F2d 284 (7th Cir\n1976) (em p loyee o f a private company w h o acted as independent contractor for HUD was public o ffi\xc2\xad\ncial); S. Rep N o 2213, 87th Cong., 2d Sess. 8 (1962) (term \xe2\x80\x9cinclude[s] officers and em ployees o f the three\nbranches o f government, jurors, and other persons carrying on activities fo r or on behalf o f the\nGovernm ent\xe2\x80\x9d).\n4\n\nMemorandum fo r James H. Thessin, Assistant Legal Adviser for Management, Department o f State,\n\nfrom John O. McGinnis, Deputy Assistant Attorney General, Office o f Legal Counsel, Re. Application of\nthe Emoluments Clause to a Civilian A ide to the Secretary o f the A rm y (Aug. 29, 1988) (citations and\nfootnotes om itted).\n\n204\n\n\x0cB. Thing of value\n\nThe second requirement o f criminal liability is that the Civilian Aide\nreceive \xe2\x80\x9canything o f value.\xe2\x80\x9d This requirement appears not to have been\nfrequently litigated. Based on existing case law, however, we believe that\nitems such as the reimbursement expenses you describe for prior expens\xc2\xad\nes incurred by the Civilian Aide and future secretarial services probably\nwould meet the statute\xe2\x80\x99s test. See, e.g., United States v. Biaggi, 853 F.2d\n89 (2d Cir. 1988) (finding vacation expenses provided to Congressman to\nbe a thing \xe2\x80\x9co f value\xe2\x80\x9d), cert, denied, 489 U.S. 1052 (1989); United States v.\nGorman, 807 F.2d 1299 (6th Cir. 1986) (finding future employment\npromised by a third party to be a thing \xe2\x80\x9co f value\xe2\x80\x9d), cert, denied, 484 U.S.\n815 (1987).\nC. Received fo r an official act\n\nThe legislative history o f the 1962 formulation o f this provision, which\nhas remained substantially unchanged, states that \xe2\x80\x9c [t]he term \xe2\x80\x98official act\xe2\x80\x99\nis defined to include any decision or action taken by a public official in\nhis capacity as such.\xe2\x80\x9d S. Rep. No. 2213, 87th Cong., 2d Sess. 8 (1962). One\ncourt has held that the mere use by a public official o f the status o f his\noffice is sufficient to warrant liability under the statute. See, e.g., United\nStates v. Biaggi, 853 F.2d at 98 (noting that congressman\xe2\x80\x99s \xe2\x80\x9cinvocation o f\nhis position and o f congressional interest in his intercession with others\non behalf o f a constituent\xe2\x80\x9d is to be considered an official act). Absent par\xc2\xad\nticular facts, it is difficult to postulate the circumstances under which\nsomething o f value would be deemed to be given because o f an official\nact by a Civilian Aide.5However, given the apparent breadth o f the Biaggi\ncourt\xe2\x80\x99s holding and our conclusion that Civilian Aides are public officials,\nwe recommend that you caution the Civilian Aides to discuss with your\nDepartment any offer o f funds or other assistance that they receive from\na third party.\n\nIII. Conclusion\nWe believe that a Civilian Aide is a public official who is barred by 18\nU.S.C. \xc2\xa7 201(c) from receiving anything o f value because o f an official\naction taken. Whether this Department would prosecute a case o f this\ntype would depend upon the particular facts and circumstances.\nWe reiterate that we believe your advice to the Civilian Aide in the cir\xc2\xad\ncumstances you described was appropriate and consistent with the Army\n5 For example, unless w e w ere to interview officials at the private foundation that made the offer to the\nCivilian Aide in your example, w e would not be able to judge whether the offer was made because o f\nlongstanding fnendship with the particular Civilian Aide, because o f disinterested community spirit and\npride in her success, or because o f a corrupt motive\n\n205\n\n\x0cRegulation\xe2\x80\x99s direction that Civilian Aides \xe2\x80\x9cavoid any situation producing\nan actual or apparent conflict\xe2\x80\x9d o f interest between their private lives and\ntheir roles as Civilian Aides.6 Should this problem arise again, we invite\nyou to consult with us or with the Public Integrity Section o f the Criminal\nDivision.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9c Arm y Regulation 1-15, \xc2\xa7 6(a)\n\n206\n\n\x0c'