b'Appointment of Member of Holocaust Memorial Council\nThe process of appointing an individual as a member of the United States Holocaust Memorial Council\nwas not completed.\nEven if the process of appointing a member of the Council had been completed, the President\xe2\x80\x99s\nappointment of another individual to that same position effected a removal of that appointee.\n\nFebruary 6, 2003\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked for our opinion whether an individual who claims to occupy a\nposition as a member of the United States Holocaust Memorial Council (\xe2\x80\x9cCouncil\xe2\x80\x9d) was actually appointed to that position. On the facts presented to us, which\nwe set forth below, this question is indistinguishable from a question we previously answered regarding persons claiming to occupy positions as trustees of the John\nF. Kennedy Center for the Performing Arts. See Memorandum for Timothy E.\nFlanigan, Deputy Counsel to the President, from Daniel L. Koffsky, Acting\nAssistant Attorney General, Re: Kennedy Center Board of Trustees (Oct. 10,\n2001) (\xe2\x80\x9cKennedy Center Memorandum\xe2\x80\x9d). Consistent with the Kennedy Center\nMemorandum, we conclude that the process of appointing the putative appointee\nwas never completed.\nYou have further informed us that on May 29, 2002, President Bush appointed\nanother individual to serve as a Council member in the very position to which the\nputative appointee claims to have been previously appointed. We conclude below\nthat if arguendo (and contrary to our conclusion on your first question) the\nputative appointee was in fact actually appointed to that position, President Bush\xe2\x80\x99s\nsubsequent appointment of another individual to that same position effected a\nremoval of the putative appointee.*\nI.\nThe Council operates as the board of trustees of the United States Holocaust\nMemorial Museum (\xe2\x80\x9cMuseum\xe2\x80\x9d): it has \xe2\x80\x9coverall governance responsibility for the\nMuseum, including policy guidance and strategic direction, general oversight of\nMuseum operations, and fiduciary responsibility.\xe2\x80\x9d 36 U.S.C. \xc2\xa7 2302(a) (2000).\nThe Council consists of 65 voting members. Of these voting members, 55 are\nappointed by the President; five are appointed by the Speaker of the House of\nRepresentatives from among members of the House; and five are appointed by the\nPresident pro tempore of the Senate from among members of the Senate. Id.\n\n*\nEditor\xe2\x80\x99s Note: We are not identifying in the published version of this opinion the names of the\nputative appointee to the Council or the other individual appointed to the Council.\n\n51\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\n\xc2\xa7 2302(b). In addition, the Council has three \xe2\x80\x9cex officio nonvoting members\xe2\x80\x9d\xe2\x80\x94\none appointed by the Secretary of the Interior, one by the Secretary of State, and\none by the Secretary of Education. Id.1\nOur opinion rests on the following understanding of the facts:\nIn a memorandum dated May 18, 2000, Bob Nash, who was Assistant to the\nPresident and Director of Presidential Personnel, recommended that President\nClinton \xe2\x80\x9capprove\xe2\x80\x9d the putative appointee for the vacant position on the Council\n\xe2\x80\x9cvice: Beth Dozoretz.\xe2\x80\x9d The memorandum provided lines labeled \xe2\x80\x9cApprove\xe2\x80\x9d and\n\xe2\x80\x9cDisapprove\xe2\x80\x9d immediately after the recommendation. President Clinton checked\nthe \xe2\x80\x9cApprove\xe2\x80\x9d line.\nOn May 25, 2000, the Office of Presidential Personnel sent the White House\nCounsel\xe2\x80\x99s Office (\xe2\x80\x9cCounsel\xe2\x80\x99s Office\xe2\x80\x9d) a memorandum stating that \xe2\x80\x9cPresident\nClinton has approved\xe2\x80\x9d the putative appointee and asking that the Counsel\xe2\x80\x99s Office\n\xe2\x80\x9cinitiate a preliminary background investigation on\xe2\x80\x9d the putative appointee. Letter\nfor Alberto R. Gonzales, Counsel to the President, from Lanny A. Breuer,\nCovington & Burling, Tab C (Aug. 9, 2002) (\xe2\x80\x9cCovington Memorandum\xe2\x80\x9d). On\nMay 31, 2000, the putative appointee submitted information requested of him for\nthe background investigation. See id., Tabs G\xe2\x80\x93H. By letter dated June 21, 2000,\nMr. Nash congratulated the putative appointee \xe2\x80\x9con your selection by the President\nto be a member\xe2\x80\x9d of the Council; in that same letter, he advised the putative\nappointee of forms that needed to be completed \xe2\x80\x9cin order for the appointment\nprocess to proceed.\xe2\x80\x9d Id., Tab I. On June 26, 2000, the Counsel\xe2\x80\x99s Office sent a\nmemorandum back to Mr. Nash reporting that it had \xe2\x80\x9ccompleted its clearance\nreview of the nomination\xe2\x80\x9d of the putative appointee and advising that \xe2\x80\x9csuch\nnomination may proceed.\xe2\x80\x9d Id., Tab J. On June 29, 2000, the Office of the Press\nSecretary released a statement that the President had \xe2\x80\x9ctoday announced his intent\nto appoint\xe2\x80\x9d the putative appointee and three other individuals to the Council. Id.,\nTab K.\nAccording to White House appointments practice, the following steps remained\nto be taken after the Counsel\xe2\x80\x99s Office memorandum reporting on the background\ninvestigation. The Director of Presidential Personnel would then draft a memorandum to the President, stating that the appointment could proceed. This memorandum would go first to the Executive Clerk\xe2\x80\x99s Office, so that the Executive Clerk\ncould prepare either a commission, if time permitted, or an order of appointment,\nwith a commission to follow. The Executive Clerk would then forward the\nmemorandum and the appointment papers to the President, through the Staff\nSecretary. The President\xe2\x80\x99s signature would typically be affixed by autopen. The\npackage would then return to the Executive Clerk, who would record the appointment and transmit the appointment papers to the Department of State.\n1\n\nThe statutory designation of appointing authorities for certain Council members and the inclusion\nof members of Congress on the Council raise serious constitutional questions that are beyond the scope\nof the issue that you have asked us to address.\n\n52\n\n\x0cAppointment of Member of Holocaust Memorial Council\n\nIn the case of the putative appointee, a search of documents has not uncovered\nany memorandum from the Director of Personnel, nor has it uncovered a commission or order of appointment signed by President Clinton. We assume, for\npurposes of this analysis, that no commission or order of appointment exists. Each\nof the three other individuals whom the June 29 press release stated that President\nClinton intended to appoint to the Council was thereafter appointed by commission. One commission was signed on July 28, 2000, and two other commissions\nwere signed on September 5, 2000.\nOn May 29, 2002, President Bush appointed another individual to serve as a\nCouncil member. President Bush appointed that individual to the same seat\xe2\x80\x94\xe2\x80\x9cfor\na term expiring January 15, 2005 (vice Beth E. Dozoretz)\xe2\x80\x9d\xe2\x80\x94to which the putative\nappointee had sought appointment.\nOn January 9, 2003, counsel for the putative appointee provided your Office an\naffidavit that former President Clinton had signed on November 25, 2002, setting\nforth his understanding of the facts and law relating to the appointment process for\nthe putative appointee. See Affidavit of William Jefferson Clinton (\xe2\x80\x9cClinton\nAffidavit\xe2\x80\x9d), attached to Letter for David G. Leitch, Deputy Counsel to the President, from Robert A. Long, Jr., Covington & Burling (Jan. 9, 2003). In that\naffidavit, Mr. Clinton states:\nWhile serving as President of the United States, I made a final decision to appoint [the putative appointee] to serve as a member of the\nHolocaust Memorial Council and exercised the authority conferred\non me as President of the United States to appoint him to that position. As described in detail below, I made a record of my decision to\nappoint [the putative appointee] by placing a check mark next to his\nname on a Decision Memorandum prepared for me by the Director\nof Presidential Personnel. My decision to appoint [the putative appointee] was final, subject only to the requirement that [the putative\nappointee] successfully complete a background check. [The putative\nappointee] satisfied this requirement, his appointment was publicly\nannounced and he entered into service as a member of the Holocaust\nCouncil, where I understand he has served with honor for two years.\nClinton Affidavit \xc2\xb6 4 (emphasis added). Mr. Clinton further states:\nAs a matter of routine, members of the White House staff took the\nministerial steps in connection with an appointment following completion of the background check, including issuing a press release,\npreparing and delivering a commission to the appointee, etc. These\nsteps were not essential to the valid exercise of my Presidential power of appointment.\nId. \xc2\xb6 9.\n\n53\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nII.\nWe first address whether the putative appointee was actually appointed a member of the Council.\nThe definitive statement of many aspects of appointment law is Chief Justice\nMarshall\xe2\x80\x99s opinion for the Supreme Court in Marbury v. Madison, 5 U.S. (1\nCranch) 137 (1803).2 There, President John Adams had signed a commission to\nappoint William Marbury as a justice of the peace, and the seal of the United\nStates had been affixed to the commission, but the commission had never been\ndelivered. Although the case had to do with an appointment by the President with\nthe Senate\xe2\x80\x99s advice and consent, the Court\xe2\x80\x99s analysis of the acts constituting or\nevidencing an appointment appears equally applicable to appointments by the\nPresident alone. According to Marbury, \xe2\x80\x9c[t]he appointment being the sole act of\nthe president, must be completely evidenced, when it is shown that he has done\neverything to be performed by him.\xe2\x80\x9d Id. at 157. Typically, that last act is the\nPresident\xe2\x80\x99s signing a commission for the appointee. However, because the\nConstitution treats as separate the making of an appointment and the issuing of a\ncommission, the appointment might \xe2\x80\x9cbe evidenced by any public act other than the\ncommission.\xe2\x80\x9d Id. at 156. In either case\xe2\x80\x94the signature on a commission or the\nother public act \xe2\x80\x93 the \xe2\x80\x9cappointment is evidenced by an open, unequivocal act; and\nbeing the last act required from the person making it, necessarily excludes the idea\nof its being, so far as respects the appointment, an inchoate and incomplete\ntransaction.\xe2\x80\x9d Id. at 157.\nWe believe that under the White House\xe2\x80\x99s regular appointments practice the\nsigning of a commission or an appointment order would be the \xe2\x80\x9copen, unequivocal\nact,\xe2\x80\x9d id. (emphasis added), showing the appointment to be complete; and on the\nfacts as we understand them, no such document was signed. Nor was there any\nother \xe2\x80\x9copen, unequivocal act\xe2\x80\x9d of appointment. Therefore, the appointment of the\nputative appointee was never made.\nThe documents made available to us, which were prepared in or issued by\nofficials at the White House, indicate that until the signing of a commission or\nappointment order, an appointment was still \xe2\x80\x9cinchoate and incomplete.\xe2\x80\x9d Id. After\nthe President checked \xe2\x80\x9cApprove\xe2\x80\x9d on the memorandum conveying the recommen-\n\n2\n\nWhether or not members of the Council appointed by the President are \xe2\x80\x9cOfficers of the United\nStates\xe2\x80\x9d in the constitutional sense, see U.S. Const. art. II, \xc2\xa7 2, cl. 2, the statute providing for their\nappointment calls for applying the principles applicable to appointment of such officers. Under the\nstatute, these members are \xe2\x80\x9cappointed . . . by the President,\xe2\x80\x9d 36 U.S.C. \xc2\xa7 2302(a), and \xe2\x80\x9c[i]n our view,\nthe statute uses the term \xe2\x80\x98appointment\xe2\x80\x99 in the same sense as does the Constitution.\xe2\x80\x9d Federal Election\nCommission\xe2\x80\x94Appointment of Members (2 U.S.C. \xc2\xa7 437), 2 Op. O.L.C. 359, 359\xe2\x80\x9360 (1977).\nFurthermore, the practice has been to treat appointment of members in the same way as appointment of\nofficers, both in the signing of commissions or appointment orders and in the affixing of the seal to the\ncommissions. See 5 U.S.C. \xc2\xa7 2902(a) (2000) (seal to be affixed to \xe2\x80\x9cthe commission of an officer\nappointed by the President\xe2\x80\x9d).\n\n54\n\n\x0cAppointment of Member of Holocaust Memorial Council\n\ndations of the Office of Presidential Personnel, a memorandum from the Office of\nPresidential Personnel to the White House Counsel\xe2\x80\x99s Office requested a \xe2\x80\x9cpreliminary background investigation\xe2\x80\x9d on the candidate approved by the President. See\nCovington Memorandum, Tab C. When the background investigation was\nfinished, the Counsel\xe2\x80\x99s Office notified the Office of Presidential Personnel that the\n\xe2\x80\x9cnomination may proceed.\xe2\x80\x9d See id., Tab J. The press release then issued about the\nputative appointee and the three other persons selected announced the President\xe2\x80\x99s\n\xe2\x80\x9cintent to appoint\xe2\x80\x9d those persons. See id., Tab K. These documents are inconsistent with the view that an appointment had already been made when the\nPresident checked the \xe2\x80\x9cApprove\xe2\x80\x9d line on the May 18 memorandum or when the\npress release was issued.\nIndeed, if a commission had been issued at the end of this process, it would\nhave begun with these words: \xe2\x80\x9cKnow ye, that reposing special trust and confidence in the Integrity and Ability of [name of appointee], I do appoint him [name\nof office], and do authorize and empower him to execute and fulfil the duties of\nthat Office according to law.\xe2\x80\x9d See E-mail for Daniel L. Koffsky, Office of Legal\nCounsel, from G. Timothy Saunders, Executive Office of President, Re: Standard\nStraight Appointment Commission Language (Oct. 1, 2001). If an appointment\norder had been used, it also would have stated on its face that the President was\nthen making the appointment: \xe2\x80\x9cI hereby appoint [name of appointee] to be a\nMember of the United States Holocaust Memorial Council for a term expiring\n[date].\xe2\x80\x9d\nThe practice of the Executive Clerk, as explained to us, conforms to the conclusion that it is the commission or, when an appointment order is used, the appointment order that signifies the appointment: the Executive Clerk records the date of\nthe appointment as the date of the commission or, in cases when an appointment\norder has first been issued, the date of the appointment order. The issuance of a\ncommission or order of appointment, as well as the Executive Clerk\xe2\x80\x99s recording of\nthe date of appointment, makes up the \xe2\x80\x9cpractice of the Executive\xe2\x80\x9d and provides the\nframework in which the events surrounding appointments are to be understood.\nSee Bennett v. United States, 19 Ct. Cl. 379, 383 (1884).3\nTo be sure, the signature on the commission or appointment order might typically, although apparently not invariably, be inscribed by autopen rather than the\nPresident\xe2\x80\x99s own hand. But \xe2\x80\x9cthe executive practice which existed at that time in\nsuch cases . . . must be taken to have been done with the knowledge and consent of\nthe President, if not by his express direction.\xe2\x80\x9d Id. at 385. The autopen, like the\nPresident\xe2\x80\x99s own hand, could give effect to an instrument signifying that a person\nhad been appointed. \xe2\x80\x9cWhere the President\xe2\x80\x99s signature is to appear on a document,\nthe signature generally may be affixed by any means, such as . . . by the use of a\n3\n\nWithin the framework of the White House\xe2\x80\x99s appointments practice, we therefore do not agree with\nformer President Clinton\xe2\x80\x99s legal assertion that the execution of a commission or appointment order was\n\xe2\x80\x9cnot essential\xe2\x80\x9d to his exercise of his appointment power. Clinton Affidavit \xc2\xb6 9.\n\n55\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nmechanical signature device.\xe2\x80\x9d Letter for John D. Ehrlichman, Counsel to the\nPresident, from William H. Rehnquist, Assistant Attorney General, Office of\nLegal Counsel, Att. at 7 (Mar. 20, 1969). The signing of the commission or\nappointment order, therefore, was the \xe2\x80\x9clast act required from the person making\n[the appointment],\xe2\x80\x9d Marbury, 5 U.S. at 157, and until that act, the appointment\nwas \xe2\x80\x9cinchoate and incomplete,\xe2\x80\x9d id.\nThe putative appointee nonetheless contends that he was actually appointed. He\nappears to rely either on the President\xe2\x80\x99s checking the \xe2\x80\x9cApprove\xe2\x80\x9d line on the May\n18 memorandum or on the June 29 White House press release stating the President\xe2\x80\x99s \xe2\x80\x9cintent to appoint\xe2\x80\x9d the putative appointee. This argument, we believe,\ncannot overcome what the documents say.\nReliance on the President\xe2\x80\x99s checking the \xe2\x80\x9cApprove\xe2\x80\x9d line mistakes the character\nof the \xe2\x80\x9copen, unequivocal act\xe2\x80\x9d that shows an appointment to have been made.\nMarbury, 5 U.S. at 157. After such an unequivocal act, there can be no discretion\nas to the appointment, because the appointment is complete. The Court in Marbury, addressing an office with protected tenure, explained:\nThe discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his\npower over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the\nperson appointed, and he has the absolute, unconditional power of\naccepting or rejecting it.\nId. at 162. Even if the tenure of the office is not protected, the President is still\nwithout discretion as to the appointment. Although he may arrest the commission\nbefore delivery, he is then removing the officer, not declining to appoint him. Id.\nAnd it is, of course, not just the President who has no further discretion over the\nappointment. To his subordinates, too, are left only ministerial acts, such as\nputting the seal on the commission. Id. at 158.\nHere, when the President checked the \xe2\x80\x9cApprove\xe2\x80\x9d line on the May 18 memorandum, the \xe2\x80\x9cpreliminary background investigation\xe2\x80\x9d of the putative appointee had not\nbeen completed. Former President Clinton\xe2\x80\x99s own affidavit confirms this point:\n\xe2\x80\x9cMy decision to appoint [the putative appointee] was final, subject only to the\nrequirement that [the putative appointee] successfully complete a background\ncheck.\xe2\x80\x9d Clinton Affidavit \xc2\xb6 4 (emphasis added). The judgment whether, in light of\nthe background investigations, the putative appointee was fit for office had not yet\nbeen made. Such judgment can be exceedingly delicate and, in any event, calls for\nthe exercise of discretion. The act of checking the \xe2\x80\x9cApprove\xe2\x80\x9d line on the May 18\nmemorandum, therefore, cannot be the \xe2\x80\x9cunequivocal act\xe2\x80\x9d signifying an end to\ndiscretion about making an appointment.\nNor does the June 29 press release show that the appointment had been completed. The press release announced only the President\xe2\x80\x99s \xe2\x80\x9cintent to appoint\xe2\x80\x9d the\n\n56\n\n\x0cAppointment of Member of Holocaust Memorial Council\n\nputative appointee and three other persons. The reference is clearly to a future act,\nnot to one that already had taken place on, or as of, a specified date. Indeed, each\nof the three other persons was later appointed by commission.\nFor the putative appointee, \xe2\x80\x9cthe last act required from the person making [the\nappointment]\xe2\x80\x9d was never performed. Marbury, 5 U.S. at 157. The appointment\nremained an \xe2\x80\x9cinchoate and incomplete transaction.\xe2\x80\x9d Id.\nIII.\nOn the assumption arguendo that the putative appointee was properly appointed a member of the Council, we next turn to the question whether he would remain\na member. This question is easily answered. It has long been established that\nappointment of a successor to a removable officer has the effect of displacing the\nincumbent. See, e.g., Wallace v. United States, 257 U.S. 541, 545 (1922); Mullan\nv. United States, 140 U.S. 240, 246\xe2\x80\x9347 (1891); Nominations for Prospective Vacancies on the Supreme Court, 10 Op. O.L.C. 108, 109 (1986). By subsequently\nappointing another individual to the same position4 that the putative appointee\nwould have occupied, President Bush would have effected the putative appointee\xe2\x80\x99s\nremoval from that position. Therefore, even if (contrary to our conclusion) he had\nbeen properly appointed in the first instance, the putative appointee would no\nlonger be a member of the Council.\nIV.\nApplying the same analysis as in the Kennedy Center Memorandum, we conclude that the putative appointee was never actually appointed to a position as a\nmember of the Council. If he had been, President Bush\xe2\x80\x99s appointment of another\nindividual would have effected the putative appointee\xe2\x80\x99s removal from that\nposition.\nM. EDWARD WHELAN III\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n4\nThe other individual\xe2\x80\x99s commission states that he was appointed \xe2\x80\x9cvice Beth E. Dozoretz.\xe2\x80\x9d If,\ncontrary to fact, the putative appointee had previously been appointed to the seat previously occupied\nby Ms. Dozoretz, it would have been better form for his commission to state that he was appointed\n\xe2\x80\x9cvice [the putative appointee].\xe2\x80\x9d But any imperfection in form would not have affected the validity of\nthe other individual\xe2\x80\x99s appointment, so long as it would have been clear (as it would have) to which\noffice he was being appointed. See Marbury, 5 U.S. at 157 (\xe2\x80\x9cappointment is evidenced by an open,\nunequivocal act\xe2\x80\x9d).\n\n57\n\n\x0c'


b'Status of the Foreign Claims Settlement Commission\nThe Foreign Claims Settlement Commission is subject to the Attorney General\xe2\x80\x99s direction in administrative matters, except where that direction would interfere with the Commission\xe2\x80\x99s independence in\nadjudicating claims.\n\nFebruary 20, 2004\n\nMEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL\nYour office has asked for our opinion whether the Foreign Claims Settlement\nCommission (\xe2\x80\x9cCommission\xe2\x80\x9d) is subject to the Attorney General\xe2\x80\x99s direction in\nadministrative matters. We believe that it is subject to such direction, except where\nthat direction would interfere with the Commission\xe2\x80\x99s independence in adjudicating\nclaims.1\nI.\nThe Commission consists of a Chairman and two members, who are appointed\nby the President with the Senate\xe2\x80\x99s advice and consent and serve staggered threeyear terms. 22 U.S.C. \xc2\xa7 1622c(a)\xe2\x80\x93(c) (2000). It has \xe2\x80\x9cjurisdiction to receive, examine, adjudicate, and render a final decision with respect to any claim of the\nGovernment of the United States or of any national of the United States\xe2\x80\x9d under\n\xe2\x80\x9cclaims agreement[s] . . . between the Government of the United States and a\nforeign government . . . providing for the settlement and discharge of claims\xe2\x80\x9d that\nthe United States or its nationals have against the foreign government. 22 U.S.C.\n\xc2\xa7 1623(a)(1)(B) (2000).\nThe Commission itself, although it had institutional predecessors, was established by Reorganization Plan 1 of 1954, 68 Stat. 1279, codified at 22 U.S.C.\n\xc2\xa7 1622 note (\xe2\x80\x9cReorganization Plan\xe2\x80\x9d), and continued as a free-standing entity until\n1980. At that time, it was \xe2\x80\x9ctransferred to the Department of Justice as a separate\nagency within that Department.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 1622a (2000), codifying Pub. L. No.\n96-209, \xc2\xa7 101, 94 Stat. 96, 96 (1980); see also 28 C.F.R. \xc2\xa7 0.128 (2003) (organization of Commission).\nUnder the terms of the transfer, \xe2\x80\x9c[a]ll functions, powers, and duties of the\n[Commission] are . . . transferred with the Commission.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 1622b\n(2000). In addition, \xe2\x80\x9c[a]ll functions, powers, and duties not directly related to\nadjudicating claims are . . . vested in the Chairman, including the functions set\nforth in section 3 of Reorganization Plan 1 of 1954 and the authority to issue rules\n\n1\n\nWe address only the statutory question of the Attorney General\xe2\x80\x99s administrative control and do\nnot consider the President\xe2\x80\x99s authority to supervise the Commission or any constitutional issues that\nwould arise to the extent the Commission might be insulated from control by the President.\n\n4\n\n\x0cStatus of the Foreign Claims Settlement Commission\n\nand regulations.\xe2\x80\x9d Id. \xc2\xa7 1622e (2000). The \xe2\x80\x9cfunctions\xe2\x80\x9d in that section of the Reorganization Plan are:\nall functions of the Commission with respect to the internal management of the affairs of the Commission, including but not limited\nto functions with respect to: (a) the appointment of personnel employed under the Commission, (b) the direction of employees of the\nCommission and the supervision of their official activities, (c) the\ndistribution of business among employees and organizational units\nunder the Commission, (d) the preparation of budget estimates, and\n(e) the use and expenditure of funds of the Commission available for\nexpenses of administration.\nReorganization Plan \xc2\xa7 3.\nThe Attorney General \xe2\x80\x9cshall provide necessary administrative support and\nservices to the Commission.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 1622f (2000). Although the Chairman\nmust follow the Department of Justice\xe2\x80\x99s procedures in preparing \xe2\x80\x9cbudget requests,\nauthorization documents, and legislative proposals,\xe2\x80\x9d the Attorney General is to\n\xe2\x80\x9csubmit these items to the Director of the Office of Management and Budget as\nproposed by the Chairman.\xe2\x80\x9d Id.\nThe Attorney General has no power to review the Commission\xe2\x80\x99s decisions on\nclaims: \xe2\x80\x9cThe decisions of the Commission with respect to claims shall be final and\nconclusive on all questions of law and fact, and shall not be subject to review by\nthe Attorney General or any other official of the United States or by any court by\nmandamus or otherwise.\xe2\x80\x9d Id. \xc2\xa7 1622g (2000). Moreover, nothing in the statute\ntransferring the Commission to the Department \xe2\x80\x9cshall be construed to diminish the\nindependence of the Commission in making its determinations on claims in\nprograms that it is authorized to administer.\xe2\x80\x9d Id.\nShortly after the Commission\xe2\x80\x99s transfer to the Department, the Commission and\nthe Justice Management Division began what turned out to be a continuing dispute\nabout whether the Department could exercise administrative control over the\nCommission. The Assistant Attorney General for Administration seems to have\nargued in 1980 that the Commission \xe2\x80\x9cis subject to the administrative procedures\nand policies of the Department,\xe2\x80\x9d but the Commission found \xe2\x80\x9cthis conclusion . . .\ncontrary to the plain language of [the statute transferring the Commission to the\nDepartment] as well as its legislative history.\xe2\x80\x9d Memorandum from the Foreign\nClaims Settlement Commission of the United States, Re: Relationship Between the\nDepartment of Justice and the Foreign Claims Settlement Commission at 1 (undated) (\xe2\x80\x9cUndated Commission Memorandum\xe2\x80\x9d) (describing Memorandum for\nRichard W. Yarborough, Chairman, Foreign Claims Settlement Commission, from\nKevin D. Rooney, Assistant Attorney General for Administration, Re: Relationship Between the Department of Justice and the Foreign Claims Settlement\nCommission (April 22, 1981)). The dispute recurred in 1996, when the Commis-\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nsion disputed the Justice Management Division\xe2\x80\x99s assertion that its Chairman\nneeded to obtain authorization from the Department before undertaking foreign\ntravel.2 In 2001, the issue arose again, in the context of determining the \xe2\x80\x9cemploying agency\xe2\x80\x9d that may approve a Commission employee\xe2\x80\x99s receipt of a decoration\nunder the Foreign Gifts and Decorations Act, 5 U.S.C. \xc2\xa7 7342(d) (2000).3 The\nimmediate issue about acceptance of a foreign gift or decoration was resolved by\nthe Deputy Attorney General\xe2\x80\x99s delegating to the Commission\xe2\x80\x99s Chairman the\npower to grant the approval of the \xe2\x80\x9cemploying agency\xe2\x80\x9d with respect to all officers\nor employees of the Commission except the Chairman himself. See Memorandum\nfor the Deputy Attorney General, from Janis A. Sposato, Acting Assistant Attorney General for Administration, Re: Receipt of a Polish-Government Decoration\nat 3 (Sept. 28, 2001) (signature on approval line). At your office\xe2\x80\x99s request, the\nlarger issue of the Department\xe2\x80\x99s administrative authority over the Commission\nwas then referred to our Office. See Memorandum for Jay S. Bybee, Assistant\nAttorney General, Office of Legal Counsel, from Janis A. Sposato, Acting\nAssistant Attorney General for Administration, Re: Authority of Foreign Claims\nSettlement Commission (Jan. 31, 2002).\nII.\nWe addressed a closely similar issue in Attorney General\xe2\x80\x99s Authority with\nRespect to the Regulatory Initiatives of the U.S. Parole Commission, 14 Op.\nO.L.C. 139 (1990) (\xe2\x80\x9c1990 Opinion\xe2\x80\x9d). For reasons discussed below, we reaffirm\nthe validity of that opinion. The statutes governing the United States Parole\nCommission (\xe2\x80\x9cUSPC\xe2\x80\x9d) and the Commission are so similar as to require treating\nthe two entities alike for purposes of the question here.\n\n2\nMemorandum for Mark Rodeffer, Finance Staff, Justice Management Division, from David E.\nBradley, Chief Counsel, Foreign Claims Settlement Commission, Re: Foreign Travel by the Chair,\nForeign Claims Settlement Commission (Feb. 2, 1996); Memorandum for Stephen R. Colgate, Assistant Attorney General for Administration, from Stuart Frisch, General Counsel, Justice Management\nDivision, Re: Travel Authorizations for the Chairmen of the Foreign Claims Settlement Commission\nand U.S. Parole Commission (July 8, 1997).\n3\nSee Memorandum for the Deputy Attorney General, from David E. Bradley, Chief Counsel,\nForeign Claims Settlement Commission, Re: Proposed Acceptance of Decoration from the Ministry of\nFinance of the Government of Poland (Aug. 21, 2001); Memorandum for Janis A. Sposato, Acting\nAssistant Attorney General for Administration, from Stuart Frisch, General Counsel, Justice\nManagement Division, Re: Authorization for [an Employee of] the Foreign Claims Settlement\nCommission to Receive and Retain a Polish-Government Decoration (Aug. 31, 2001); Memorandum\nfor the Deputy Attorney General, from John R. Lacey, Chairman, Richard T. White, Commissioner,\nand Laramie F. McNamara, Commissioner, Foreign Claims Settlement Commission, Re: Delegation of\nApproval Authority Under the Foreign Gifts and Decorations Act (Dec. 12, 2001) (\xe2\x80\x9c2001 Commission\nMemorandum\xe2\x80\x9d).\n\n6\n\n\x0cStatus of the Foreign Claims Settlement Commission\n\nA.\nWe described the USPC in the 1990 Opinion:\nThe Commission was established in 1976 as \xe2\x80\x9can independent agency\nin the Department of Justice.\xe2\x80\x9d The legislative history of the Act that\ncreated the Commission states that Congress intended the Commission to be \xe2\x80\x9cindependent for policy-making purposes\xe2\x80\x9d but that the\nCommission would be \xe2\x80\x9cattached to the Department of Justice for\nadministrative convenience.\xe2\x80\x9d Indeed, the Conference Report on the\nbill stated that \xe2\x80\x9c[t]he Commission is attached to the Department solely for administrative purposes.\xe2\x80\x9d Congress granted the Commission\nindependence from the Department because it wanted to ensure that\n\xe2\x80\x9cparole decisionmaking [would] be independent of, and not governed by, the investigative and prosecutorial functions of the Department of Justice.\xe2\x80\x9d\n14 Op. O.L.C. at 141 (citations and parenthetical quotations omitted). In the 1990\nOpinion, we considered the extent of the Attorney General\xe2\x80\x99s authority in light of\nthese provisions and, in particular, whether the Attorney General could \xe2\x80\x9crequire\nthe [USPC] to consult the Office of Policy Development (\xe2\x80\x98OPD\xe2\x80\x99) concerning the\n[USPC\xe2\x80\x99s] regulatory initiatives and to submit proposed regulations to OPD in\nadvance of their submission to OMB\xe2\x80\x99s Office of Information and Regulatory\nAffairs (\xe2\x80\x98OIRA\xe2\x80\x99).\xe2\x80\x9d Id. at 139. We concluded that \xe2\x80\x9cthe Attorney General has the\nauthority to require the [USPC], as an administrative unit of the Department of\nJustice, to coordinate its regulatory activities with OPD and other components of\nthe Department,\xe2\x80\x9d but that \xe2\x80\x9c[t]he [USPC\xe2\x80\x99s] statutory status as an \xe2\x80\x98independent\nagency\xe2\x80\x99 within the Department . . . precludes the Attorney General as a general\nmatter from asserting substantive control over the [USPC\xe2\x80\x99s] policy-making,\nincluding its issuance of regulations.\xe2\x80\x9d Id. at 139\xe2\x80\x9340.\nOrdinarily, the placement of an agency \xe2\x80\x9cwithin\xe2\x80\x9d the Department of Justice\nwould subject the agency to the Attorney General\xe2\x80\x99s administrative direction. By\nstatute, the Attorney General \xe2\x80\x9cis the head of the Department of Justice.\xe2\x80\x9d 28 U.S.C.\n\xc2\xa7 503 (2000). With certain exceptions, \xe2\x80\x9c[a]ll functions of other officers of the\nDepartment of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General,\xe2\x80\x9d id. \xc2\xa7 509, and he may make\n\xe2\x80\x9csuch provisions as he considers appropriate\xe2\x80\x9d to authorize other officers, employees, and agencies of the Department to carry out the functions vested in him, id.\n\xc2\xa7 510. See also 5 U.S.C. \xc2\xa7 301 (2000) (empowering the head of a department to\n\xe2\x80\x9cprescribe regulations for the government of his department, the conduct of its\nemployees, the distribution and performance of its business, and the custody, use,\nand preservation of its records, papers, and property\xe2\x80\x9d). These provisions, in almost\nall circumstances, grant the Attorney General both administrative and substantive\n\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\ncontrol over the Department and the agencies within it. See Memorandum for\nPhilip B. Heymann, Deputy Attorney General, from Walter Dellinger, Assistant\nAttorney General, Office of Legal Counsel, Re: Creation of the Office of Investigative Agency Policies at 2 (Oct. 26, 1993) (\xe2\x80\x9cCongress specifically granted broad\npowers to the Attorney General, vesting in her virtually all the functions within the\nDepartment, and authorizing her to delegate any of her authorities.\xe2\x80\x9d) (citations\nomitted); Memorandum for D. Lowell Jensen, Associate Attorney General, from\nRalph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel at 2\nn.1 (Aug. 23, 1983) (advisory commission located in the Department of Justice for\nadministrative purposes). Although the 1990 Opinion did not explicitly refer to\nthese provisions, they formed the evident background to our conclusion that\n\xe2\x80\x9c[b]ecause the [USPC] remains \xe2\x80\x98attached\xe2\x80\x99 to the Department for administrative\npurposes . . . the Attorney General may require the [USPC] to participate in\nDepartment-wide regulatory coordination that does not entail substantive control\nof the [USPC\xe2\x80\x99s] regulatory initiatives.\xe2\x80\x9d 14 Op. O.L.C. at 142.\nCongress has dealt, in some detail, with the administrative powers of both the\nUSPC and the Commission, and the powers conferred in both cases are quite\nsimilar. The statute on the USPC provides that its Chairman, among other things,\nmay hire personnel, including for temporary and intermittent services, 18 U.S.C.\n\xc2\xa7 4204(a)(2), (b)(3) (repealed prospectively by Continuing Appropriations\xe2\x80\x94Comprehensive Crime Control Act of 1984, tit. II, \xc2\xa7 218(a)(5), 98 Stat. 1837, 2027);\n\xe2\x80\x9cassign duties among officers and employees . . . so as to balance the workload\nand provide for orderly administration,\xe2\x80\x9d id. \xc2\xa7 4204(a)(3); \xe2\x80\x9cdirect the . . . use of\nfunds made available to the [USPC],\xe2\x80\x9d id. \xc2\xa7 4204(a)(4); \xe2\x80\x9center into and perform\nsuch contracts, leases, cooperative agreements, and other transactions as may be\nnecessary in the conduct of the functions of the [USPC],\xe2\x80\x9d id. \xc2\xa7 4204(b)(1); and\naccept voluntary services, id. \xc2\xa7 4204(b)(2). Similarly, the statute governing the\nCommission enables it to hire personnel, including consultants and language\nexperts, and to accept facilities, services, and reimbursed details from other\nagencies. 22 U.S.C. \xc2\xa7 1622d (2000). It vests in the Chairman \xe2\x80\x9c[a]ll functions, powers, and duties not directly related to adjudicating claims,\xe2\x80\x9d including functions set\nforth in the Reorganization Plan, id. \xc2\xa7 1622e. The Reorganization Plan, through\nthis incorporation by reference, places under the Chairman\xe2\x80\x99s control \xe2\x80\x9cthe internal\nmanagement of the affairs of the Commission,\xe2\x80\x9d including \xe2\x80\x9cthe direction of\nemployees of the Commission and the supervision of their official activities\xe2\x80\x9d and\n\xe2\x80\x9cthe use and expenditure of funds of the Commission available for expenses of\nadministration.\xe2\x80\x9d Reorganization Plan \xc2\xa7 3.\nIn the case of the USPC, we did not interpret the specific provisions on administrative authority as generally displacing the Attorney General\xe2\x80\x99s authorities under\n28 U.S.C. \xc2\xa7\xc2\xa7 509 and 510 and 5 U.S.C. \xc2\xa7 301.4 The conferral of specific authori4\nAlthough the 1990 Opinion addresses only one specific case of administrative control, its conclusions are more general. In a footnote to the conclusion that the USPC\xe2\x80\x99s being attached to the\n\n8\n\n\x0cStatus of the Foreign Claims Settlement Commission\n\nties on the constituent part of the Department, without more, did not mean that the\nsame authority was not vested in the Attorney General under section 509. Because\nthe Commission, too, is \xe2\x80\x9cwithin\xe2\x80\x9d the Department, see 22 U.S.C. \xc2\xa7 1622a, the same\nprinciple would apply here, unless some valid ground for distinction between the\nCommission and the USPC can be found.5\nB.\nWhen the legislation that transferred the Commission to the Department was\nbeing drafted, we wrote a bill comment stating that the \xe2\x80\x9crelationship of the\nCommission to the Department is similar to that provided for the United States\nParole Commission, which is attached to the Department of Justice solely for\nadministrative purposes.\xe2\x80\x9d Memorandum for Michael Dolan, Office of Legislative\nAffairs, from Larry A. Hammond, Acting Assistant Attorney General, Office of\nLegal Counsel, Re: Draft Bill to Transfer the Foreign Claims Settlement Commission of the United States to the Department of Justice (Jan. 24, 1979) (citations\nomitted) (\xe2\x80\x9c1979 Bill Comment\xe2\x80\x9d). There are, however, four principal arguments for\nthe view that the two entities are dissimilar in administrative matters.\nFirst, according to the Undated Commission Memorandum,\nThe Department of Justice conclusion that administration of the\nCommission rests with the Attorney General rather than the Chairman rests apparently on the thesis that the Congress intended the\nsame authority in the Chairman of the [Commission] as was granted\nby legislation creating the Parole Commission. A comparison of the\ntwo statutes shows such conclusion to be totally without support. No\nwhere [sic] in the statute does Congress vest in the Parole Commis-\n\nDepartment for administrative purposes subjects it to Department-wide requirements for coordination,\nthe 1990 Opinion notes that \xe2\x80\x9cCongress has expressly provided, however, that the Commission\xe2\x80\x99s\nbudgetary requests shall be separate from those of any other component of the Department.\xe2\x80\x9d 14 Op.\nO.L.C. at 142 n.4 (citation omitted). The plain implication is that the conclusion about the Attorney\nGeneral\xe2\x80\x99s power reaches other administrative matters, with budgetary requests being an express\nexception.\n5\nRegulations issued by the Department in 1981 appear to have treated the Commission as subject\nto the Attorney General\xe2\x80\x99s direction in administrative matters. A delegation of the Attorney General\xe2\x80\x99s\nauthority to the Deputy Attorney General, which listed components reporting to the Deputy Attorney\nGeneral, provided that \xe2\x80\x9c[t]he Foreign Claims Settlement Commission is under the supervision of the\nDeputy Attorney General for administrative purposes.\xe2\x80\x9d 46 Fed. Reg. 52,339, 52,341 (1981) (issuing 28\nC.F.R. \xc2\xa7 0.15(b)). Although the regulation elsewhere used the term \xe2\x80\x9csupervision and direction,\xe2\x80\x9d see id.,\nthe omission of \xe2\x80\x9cdirection\xe2\x80\x9d was not consequential for present purposes, since the relationship of the\nAttorney General to the Deputy Attorney General was also described as one of \xe2\x80\x9csupervision.\xe2\x80\x9d See id. at\n52,341 (\xe2\x80\x9c[s]ubject to the general supervision of the Attorney General\xe2\x80\x9d). The regulation was amended in\n1988 to remove the specification of the units under the Deputy Attorney General and to substitute a\ngeneral reference to the Deputy Attorney General\xe2\x80\x99s \xe2\x80\x9cdirect[ing] the activities of organizational units as\nassigned.\xe2\x80\x9d 53 Fed. Reg. 5370 (1988) (amending 28 C.F.R. \xc2\xa7 0.15(b)).\n\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nsion or its Chairman the broad powers vested in the Chairman of the\n[Commission] by section 105 of Public Law 96-209.\nId. at 4. Section 105 is the provision under which \xe2\x80\x9c[a]ll functions, powers, and\nduties not directly related to adjudicating claims are hereby vested in the Chairman.\xe2\x80\x9d But although the statute on the USPC does not use the \xe2\x80\x9c[a]ll functions\xe2\x80\x9d\nformulation, it does state that the Chairman \xe2\x80\x9cshall . . . exercise such other powers\nand duties and perform such other functions as may be necessary to carry out the\npurposes of this chapter,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 4204(a)(7), and this catch-all appears, in\npractical effect, as broad as the provision to which the Undated Commission\nMemorandum points. The Chairman of the USPC, therefore, does not have\nappreciably narrower administrative authorities than the Chairman of the Commission, and the two entities cannot be distinguished on such a ground. Moreover,\neven before the Commission was transferred to the Department, \xe2\x80\x9call functions of\nthe Commission with respect to the internal management of the affairs of the\nCommission\xe2\x80\x9d were \xe2\x80\x9cvested in the Chairman.\xe2\x80\x9d Reorganization Plan \xc2\xa7 3. Accordingly, the evident purpose for vesting authority in the Chairman was not to exclude\nthe authority of the Attorney General, but to set the relative roles of the Chairman\nand the other members of the Commission.\nSecond, under 22 U.S.C. \xc2\xa7 1622f, \xe2\x80\x9c[t]he Chairman shall prepare the budget\nrequests, authorization documents, and legislative proposals for the Commission\nwithin the procedures established by the Department of Justice, and the Attorney\nGeneral shall submit these items to the Director of the Office of Management and\nBudget as proposed by the Chairman.\xe2\x80\x9d Thus, the Commission argues, \xe2\x80\x9calthough\n[the statute] . . . refers to \xe2\x80\x98procedures established by the Department of Justice,\xe2\x80\x99 it\nlimits the applicability of those only to \xe2\x80\x98budget requests, authorization documents,\nand legislative proposals.\xe2\x80\x99\xe2\x80\x9d 2001 Commission Memorandum at 3. At least as to\nbudget requests, the Commission\xe2\x80\x99s statute is hardly different from the USPC\xe2\x80\x99s. By\nstatute, the USPC\xe2\x80\x99s appropriations requests \xe2\x80\x9cshall be separate from those of any\nother agency of the Department of Justice.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 4203(a)(3). In 1977, we\nconstrued this provision as protecting the USPC\xe2\x80\x99s ability to request whatever\namount it considered necessary for its operations, but not as precluding the\nDepartment from insisting on \xe2\x80\x9cthe administrative mechanics of the budgetary\nsubmission procedure implemented by the Department of Justice on the instructions of the Office of Management and Budget.\xe2\x80\x9d Memorandum for James S.\nJardine, Special Assistant to the Attorney General, from Leon Ulman, Deputy\nAssistant Attorney General, Office of Legal Counsel, Re: Interpretation of 18\nU.S.C. 4203(a)(3), the Budgetary Authority of the United States Parole Commission at 2 (Oct. 27, 1977). In both cases, therefore, the special protections for the\nagency\xe2\x80\x99s budget requests, as limited by the procedural requirements, are virtually\nidentical.\nMore generally, by making the Commission subject to certain administrative\ncontrols over the form of budget requests, authorization documents, and legislative\n\n10\n\n\x0cStatus of the Foreign Claims Settlement Commission\n\nproposals, the Commission\xe2\x80\x99s statute does not imply that the Commission is\notherwise outside such controls. The statute supplies an additional, specific\nprotection for the Commission\xe2\x80\x99s requests in these areas, which are closely tied to\nits substantive work, and the reference to the Department\xe2\x80\x99s procedures serves to\nset the limits of this additional protection. The draft version of the legislation\ntransferring the Commission that we reviewed in 1979 appears to have provided\nthat the Attorney General could attach his recommendations to the Commission\xe2\x80\x99s\nbudget requests, see 1979 Bill Comment at 1, and we \xe2\x80\x9csuggest[ed] that the\nCommission be authorized to submit its budget request without review and\nrecommendations of the Attorney General in order to avoid undermining its\nindependence from the Department.\xe2\x80\x9d We specifically offered the similar provision\nfor the Parole Commission as a model. Id. The specific treatment of the procedures, budgets and similar matters should not be taken to imply that, in other areas\nnot touching so directly on the Commission\xe2\x80\x99s substantive work, the Attorney\nGeneral lacks administrative control over the Commission.\nThird, \xe2\x80\x9cthe paramount purpose of the 1980 act [transferring the Commission to\nthe Department] was to streamline the Executive Branch by reducing the number\nof free-standing, individual agencies in it,\xe2\x80\x9d and \xe2\x80\x9c[t]here is no suggestion anywhere\nin the [committee] report of any intent to reduce the [Commission] Chairman\xe2\x80\x99s\nadministrative autonomy.\xe2\x80\x9d 2001 Commission Memorandum at 4. But, assuming\nthat the legislative purpose was to streamline the executive branch, it might be\nperfectly consistent with that purpose for the Commission and its Chairman to be\nplaced under the Attorney General\xe2\x80\x99s administrative control. If, for example, the\nCommission no longer maintained separate approval mechanisms for various\nadministrative matters, its integration into the Department\xe2\x80\x99s mechanisms could\npromote consistency and allow the application of the expertise arising from the\nDepartment\xe2\x80\x99s more extensive experience.6\nFourth, the Commission\xe2\x80\x99s statute provides that \xe2\x80\x9c[t]he Attorney General shall\nprovide necessary administrative support and services to the Commission.\xe2\x80\x9d 22\nU.S.C. \xc2\xa7 1622f. The requirement, in mandatory language, that the Attorney\nGeneral provide administrative support and services arguably conflicts with the\nidea that the Commission, from an administrative standpoint, is sufficiently like\nother entities within the Department of Justice to be subject to the Attorney General\xe2\x80\x99s administrative control. Those entities, as a matter of course, receive administrative support as directed by the Attorney General and his delegates. The statutory\nrequirement for the Attorney General to provide administrative support to the\nCommission might seem to bespeak a more distant relationship. However, while\nprovisions requiring that one entity or official support another usually apply to\n6\nWe take no position, of course, on such issues as whether the Attorney General might want to\ndelegate approval authorities to the Commission. The point is that Congress could have considered that\nthe transfer of the Commission would increase efficiency by providing for the Commission to be\nintegrated, as appropriate, into the Department\xe2\x80\x99s administrative mechanisms.\n\n11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nentities that are administratively distinct, see, e.g., 21 U.S.C. \xc2\xa7 1908(d)(3) (2000)\n(the Attorney General and Treasury Secretary provide a legislative-branch commission \xe2\x80\x9csuch administrative services, funds, facilities, and other support services\nas are necessary for the performance of the Commission\xe2\x80\x99s duties\xe2\x80\x9d); 21 U.S.C.\n\xc2\xa7 1704(c) (2000) (Administrator of General Services Administration is to provide\nDirector of Office of National Drug Control Policy \xe2\x80\x9csuch administrative support\nservices as the Director may request\xe2\x80\x9d), they are not invariably found in that\ncontext, see Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.\n104-132, \xc2\xa7 811(a)(1)(A), 110 Stat. 1214, 1312 (1996) (using particular identified\nfunds, the Attorney General is to \xe2\x80\x9cprovide support and enhance the technical\nsupport center and tactical operations of the Federal Bureau of Investigation\xe2\x80\x9d); 28\nU.S.C. \xc2\xa7 586(c) (2000) (United States Trustees are under the \xe2\x80\x9cgeneral supervision\nof the Attorney General, who shall provide general coordination and assistance\xe2\x80\x9d to\nthem). The provision on administrative support clarifies that, despite the Commission\xe2\x80\x99s being a \xe2\x80\x9cseparate agency\xe2\x80\x9d with the Department, 22 U.S.C. \xc2\xa7 1622a, and its\nhaving separate authority over budgetary matters, id. \xc2\xa7 1622f, the Attorney General may make available to the Commission the administrative resources of the\nDepartment. This clarification does not undermine the Attorney General\xe2\x80\x99s\nauthority over the Commission in administrative matters.\nC.\nTo be sure, administrative control by the Attorney General in some cases could\ninterfere with the substantive independence of the Commission, and, in those cases\nin which it would, we would not conclude that the Attorney General could\nexercise such control. As the 1990 Opinion shows, however, procedural requirements do not necessarily trench upon an agency\xe2\x80\x99s substantive independence. 14\nOp. O.L.C. at 142. We therefore cannot accept the categorical view that the independence of the Commission in its adjudicatory functions implies a similar\nindependence from administrative controls.\nM. EDWARD WHELAN III\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n12\n\n\x0c'


b'Emoluments Clause and World Bank\nAn international organization in which the United States participates, such as the International Bank for\nReconstruction and Development, is not a \xe2\x80\x9cforeign State\xe2\x80\x9d under the Emoluments Clause, U.S.\nConst. art. I, \xc2\xa7 9, cl. 8.\n\nMay 24, 2001\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nSMITHSONIAN INSTITUTION\nThis responds to your request for our opinion whether the Emoluments Clause,\nU.S. Const. art. I, \xc2\xa7 9, cl. 8, bars Smithsonian Institution employees from performing special projects under contracts for the International Bank for Reconstruction\nand Development (\xe2\x80\x9cWorld Bank\xe2\x80\x9d). As we have advised orally on several occasions over the past few years, we do not believe that an international organization\nsuch as the World Bank in which the United States participates is a \xe2\x80\x9cforeign State\xe2\x80\x9d\nunder the Clause. Id. Therefore, the Emoluments Clause would not forbid this type\nof arrangement.\nI.\nAs we understand the arrangements in question, Smithsonian employees enter\ninto contracts to perform special projects with the World Bank. The World Bank is\nan international organization of member states, which was created by the Articles\nof Agreement drawn up at a conference in Bretton Woods, New Hampshire in\n1944. The United States joined the World Bank by accepting the Articles of\nAgreement in the Bretton Woods Agreements Act of 1945, 22 U.S.C. \xc2\xa7\xc2\xa7 286286nn (1994 & Supp. IV 1999). See also Articles of Agreement of the International Bank for Reconstruction and Development, Dec. 27, 1945, 60 Stat. 1440, 2\nU.N.T.S. 134. The United States has undertaken, with the consent of Congress, a\nprominent role in the organization\xe2\x80\x99s management and decisionmaking. The United\nStates governor appointed for the International Monetary Fund, another creation of\nthe Bretton Woods Agreement, \xe2\x80\x9cshall also serve as a governor of the Bank,\xe2\x80\x9d 22\nU.S.C. \xc2\xa7 286a(a); and the President appoints an executive director for the Bank, id.\nMoreover, by tradition, the World Bank\xe2\x80\x99s President is a national of the United\nStates, which is the World Bank\xe2\x80\x99s largest shareholder. See World Bank Group at a\nGlance, http://www.worldbank.org (last visited Mar. 6, 2001).\nThe Emoluments Clause provides that no person holding an office of profit or\ntrust under the United States \xe2\x80\x9cshall, without the Consent of the Congress, accept of\nany present, Emolument, Office, or Title, of any kind whatever, from any King,\nPrince, or foreign State.\xe2\x80\x9d Id. The clause was designed to protect foreign ministers\nand other officers of the United States from undue influence and corruption by\n\n113\n\n227-329 VOL_25_PROOF.pdf 123\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nforeign governments. See, e.g., 2 The Records of the Federal Convention of 1787\n389 (Max Farrand ed., rev. ed. 1966) (remarks of Mr. Pinkney); 3 id. at 327\n(remarks of Governor Randolph); see also Applicability of Emoluments Clause to\nEmployment of Government Employees by Foreign Public Universities, 18 Op.\nO.L.C. 13, 15 (1994).\nOur Office has concluded that the prohibitions of the Emoluments Clause apply\nnot only to constitutional officers\xe2\x80\x94those officials who must be appointed pursuant\nto the Appointments Clause because they exercise \xe2\x80\x9csignificant authority pursuant\nto the laws of the United States,\xe2\x80\x9d Buckley v. Valeo, 424 U.S. 1, 126 & n.162\n(1976) (per curiam)\xe2\x80\x94but also to government employees, \xe2\x80\x9clesser functionaries\xe2\x80\x9d\nwho are subordinate to officers, id. See Application of the Emoluments Clause of\nthe Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156,\n158 (1982) (\xe2\x80\x9cApplication of the Emoluments Clause\xe2\x80\x9d) (\xe2\x80\x9cEven though the Framers\nmay have had the example of high officials such as \xe2\x80\x98foreign Ministers\xe2\x80\x99 in mind\nwhen discussing the clause, . . . its policy would appear to be just as important as\napplied to subordinates. The problem of divided loyalties can arise at any level.\xe2\x80\x9d).\nThe Emoluments Clause thus would cover Smithsonian employees. 1\nWe have also long found that contractual relationships such as those in question\nhere give rise to \xe2\x80\x9cEmoluments\xe2\x80\x9d within the meaning of the Emoluments Clause.\nSee, e.g., Memorandum for S.A. Andretta, Administrative Assistant Attorney\nGeneral, from J. Lee Rankin, Assistant Attorney General, Office of Legal Counsel,\nRe: Payment of Compensation to Individual in Receipt of Compensation from a\nForeign Government at 8 (Oct. 4, 1954) (\xe2\x80\x9c[T]he term \xe2\x80\x98emolument\xe2\x80\x99 . . . was\nintended to cover compensation of any sort arising out of an employment relationship with a foreign state.\xe2\x80\x9d); see also Letter for James A. Fitzgerald, Assistant\nAttorney General, United States Nuclear Regulatory Commission, from Charles J.\nCooper, Assistant Attorney General, Office of Legal Counsel (Mar. 24, 1986)\n(same). Absent the consent of Congress, the Emoluments Clause would, therefore,\nbar an employee of the Smithsonian from entering into such a contractual\nemployment relationship with the World Bank if the World Bank is a \xe2\x80\x9cforeign\nState\xe2\x80\x9d under the Emoluments Clause.\nIn recent years, this Office in oral advice has consistently construed the terms\n\xe2\x80\x9cKing, Prince, or foreign State\xe2\x80\x9d to exclude international and multinational\n1\nThis Office on previous occasions has given opinions to the Smithsonian Institution. See, e.g.,\nImmunity of Smithsonian Institution from State Insurance Laws, 21 Op. O.L.C. 81 (1997). In doing so,\nwe have observed that \xe2\x80\x9cthe unique, hybrid nature of the Smithsonian\xe2\x80\x9d raises questions about its legal or\ngovernmental status. Id. at 86 n.7. As we have noted before, the Smithsonian Institution itself, as well\nas its structure, organization, oversight, and management, are established by federal statute. Id. at 81.\nBoth this Office and federal courts have \xe2\x80\x9crecognized the Smithsonian\xe2\x80\x99s status as an establishment,\nagency, or authority of the federal government, at least in certain contexts.\xe2\x80\x9d Id. at 82. Furthermore,\n\xe2\x80\x9c[t]he Smithsonian receives a substantial portion of its funding from federal appropriations, and a\nmajority of its employees are from the federal civil service.\xe2\x80\x9d Id. at 81. Given this background, we\nassume, as you do, that Smithsonian personnel are covered by the Emoluments Clause.\n\n114\n\n227-329 VOL_25_PROOF.pdf 124\n\n10/22/12 11:10 AM\n\n\x0cEmoluments Clause and World Bank\n\norganizations in which the United States participates. However, our few formal\nwritten opinions, going back to the 1950s, have not shown the same consistency.\nIn our first statements on the issue in the early 1950s, we advised that the\nEmoluments Clause would not prohibit a federal judge from serving on the\nInternational Law Commission under the auspices of the United Nations. See\nMemorandum for the Attorney General, from J. Lee Rankin, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Membership of Judge Parker on the\nInternational Law Commission (Nov. 27, 1953) (\xe2\x80\x9c1953 Rankin Memorandum\xe2\x80\x9d);\nMemorandum for Herzel H.E. Plaine, from D.C. Stephenson, Re: Article I, Section\n9, Clause 8 of the Constitution\xe2\x80\x94Its Meaning (Nov. 13, 1953) (\xe2\x80\x9c1953 Stephenson\nMemorandum\xe2\x80\x9d). At that time, we noted that because international organizations\nsuch as the United Nations were unknown when the Constitution was adopted, the\nframers of the Constitution could not have had in mind service on such organizations when considering the Emoluments Clause. Giving weight to the purposes\nbehind the Clause, we concluded that it would not apply to international organizations such as the United Nations. See 1953 Rankin Memorandum at 4-5; 1953\nStephenson Memorandum at 10. Later, although not expressly reversing these\nearlier opinions, we voiced some doubt about this conclusion, at least with regard\nto the United Nations, noting that \xe2\x80\x9cemployment by the United Nations Secretariat\ndoes contain elements comparable to accepting an office from a foreign government,\xe2\x80\x9d including \xe2\x80\x9cduties and responsibilities\xe2\x80\x9d owed to the organization comparable to that owed by an officer or employee of a government. See Memorandum for\nthe Attorney General, from W. Wilson White, Assistant Attorney General, Office\nof Legal Counsel, Re: Appointments to Civil Rights Commission at 17 (Oct. 15,\n1957) (\xe2\x80\x9cAccordingly, there is some basis for regarding United Nations employment as coming within the spirit if not the letter of the prohibition of Article I,\nSection 9, Clause 8 of the Constitution.\xe2\x80\x9d); cf. Applicability of Emoluments Clause\nto Proposed Service of Government Employee on Commission of International\nHistorians, 11 Op. O.L.C. 89, 90 & n.4 (1987) (suggesting that \xe2\x80\x9cconcerns\nexpressed by the Framers in the Emoluments Clause would still be applicable\xe2\x80\x9d to\ngovernment employee\xe2\x80\x99s proposed service on international commission even if\ncommission were established by international body, and noting inclusion of \xe2\x80\x9cany\ninternational or multinational organization\xe2\x80\x9d in definition of \xe2\x80\x9cforeign government\xe2\x80\x9d\nin Foreign Gifts Act; nevertheless, in case at issue, commission was established\nand funded by Austrian government).\nII.\nThe conclusion that the World Bank is not a \xe2\x80\x9cforeign State\xe2\x80\x9d under the Emoluments Clause follows, first, from the language of the Clause. It would hardly be a\nnatural use of the words to say that the United States is a member of a \xe2\x80\x9cforeign\n\n115\n\n227-329 VOL_25_PROOF.pdf 125\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nState.\xe2\x80\x9d See 22 U.S.C. \xc2\xa7 286. 2 The World Bank has neither a defined territory nor a\npermanent population under its control.\nBecause international organizations such as the World Bank were unknown\nwhen the Constitution was adopted, and because the framers of the Constitution\nthus did not contemplate service on such organizations when considering the\nEmoluments Clause, we have in the past looked to the purposes of the Clause in\norder to determine whether such an international organization is a \xe2\x80\x9cforeign State.\xe2\x80\x9d\nOn that score, we believe that our first examinations of the question in the early\n1950s were correct. See 1953 Rankin Memorandum; 1953 Stephenson Memorandum. Although the interests of the organization and the United States are not\nidentical, the United States has determined that the organization plays an\nimportant role in carrying out our foreign policy. The United States accordingly\nparticipates in the governance of the organization and undertakes a leadership role\nin its decisionmaking. Because of the role played by the United States in the\nWorld Bank as approved by Congress, employment of government employees by\nthe organization would not directly raise the concerns about divided loyalty that\nthe Emoluments Clause was designed to address.\nTo be sure, the Foreign Gifts and Decorations Act (\xe2\x80\x9cForeign Gifts Act\xe2\x80\x9d), which\ngenerally prohibits employees from requesting or otherwise encouraging the\ntender of a gift or decoration given by a foreign government or from accepting or\nretaining such a gift of more than minimal value, defines \xe2\x80\x9cforeign government\xe2\x80\x9d to\ninclude international organizations. See 5 U.S.C. \xc2\xa7 7342(a)(2)(B) (1994).\nAlthough the Foreign Gifts Act only covers gifts and decorations and does not\napply to payment for services, see, e.g., Application of the Emoluments Clause, 6\nO.L.C. at 157 (\xe2\x80\x9cIt seems clear that this Act only addresses itself to gratuities,\nrather than compensation for services actually performed . . . .\xe2\x80\x9d), the Foreign Gifts\nAct arguably is relevant here if it reflects Congress\xe2\x80\x99s understanding about the\nscope of the term \xe2\x80\x9cforeign State\xe2\x80\x9d in the Emoluments Clause. It is far from clear,\nhowever, that the definition of \xe2\x80\x9cforeign government\xe2\x80\x9d was intended to reflect\nCongress\xe2\x80\x99s understanding of the constitutional definition of \xe2\x80\x9cforeign State.\xe2\x80\x9d The\nForeign Gifts Act was originally enacted in 1966; international organizations were\nadded to the definition of \xe2\x80\x9cforeign government\xe2\x80\x9d over a decade later in the 1977\namendments, see Foreign Relations Authorization Act, Fiscal Year 1978, Pub. L.\nNo. 95-105, 91 Stat. 844, 863 (1977). The legislative history contains no indication that the addition was intended to correct a perceived gap between the existing\n\n2\n\nFurthermore, although not dispositive, the definition of \xe2\x80\x9cstate\xe2\x80\x9d under international law is instruc-\n\ntive:\nUnder international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has\nthe capacity to engage in, formal relations with other such entities.\nRestatement (Third) of Foreign Relations Law of the United States \xc2\xa7 201 (1987).\n\n116\n\n227-329 VOL_25_PROOF.pdf 126\n\n10/22/12 11:10 AM\n\n\x0cEmoluments Clause and World Bank\n\ncoverage of the Foreign Gifts Act and the scope of the Emoluments Clause. See,\ne.g., Report on Foreign Relations Authorization Act, Fiscal Year 1978, S. Rep.\nNo. 95-194 (1977), reprinted in 1977 U.S.C.C.A.N. 1625; Report on Foreign\nRelations Authorization Act, Fiscal Year 1978, H.R. Rep. No. 95-537, at 40 (1977)\n(Conf. Rep.), reprinted in 1977 U.S.C.C.A.N. 1670. In the absence of any\nevidence that constitutional concerns motivated this change, it seems likely that\nthe expansion of the scope of the Foreign Gifts Act to reach international organizations was motivated by policy concerns as opposed to constitutional ones. 3\nWe conclude that the World Bank is not a \xe2\x80\x9cforeign State\xe2\x80\x9d for purposes of the\nEmoluments Clause. The Clause therefore would not prohibit a Smithsonian\nemployee from performing a special project under contract for the World Bank.\nDANIEL L. KOFFSKY\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n3\nAt any rate, even if Congress had interpreted the constitutional phrase, we would not view that\nconstruction as necessarily controlling.\n\n117\n\n227-329 VOL_25_PROOF.pdf 127\n\n10/22/12 11:10 AM\n\n\x0c'