b'Applicability of Appointment Provisions of the Anti-Drug Abuse\nAct of 1988 to Incumbent Officeholders\nProvisions of the Anti-Drug Abuse Act of 1988 requiring appointment by the President with the ad\xc2\xad\nvice and consent of the Senate for certain positions within the Department of Justice do not affect\nthe tenure of incumbent officeholders who were appointed by the Attorney General.\n\nDecember 12, 1988\nM\n\nem orandum\n\nO p in io n\n\nA s s is t a n t A t t o r n e y G e n e r a l\nA d m in i s t r a t io n\n\nfor th e\n\nfor\n\nIntroduction and Summary\n\nThis memorandum responds to your request of November 30, 1988, for the\nopinion of this Office on the effect of provisions in the Anti-Drug Abuse Act of\n1988 (\xe2\x80\x9cAct\xe2\x80\x9d) requiring appointment by the President with the advice and con\xc2\xad\nsent of the Senate for certain positions within the Department of Justice.1 Specif\xc2\xad\nically, you would like our opinion on the effect of the new advice and consent\nrequirement on those persons currently holding those positions under appoint\xc2\xad\nments from the Attorney General. For the reasons set forth in this memorandum,\nwe believe that the tenure of the incumbent officeholders is unaffected by this\nlegislation. Congress has not indicated an intention to apply the advice and con\xc2\xad\nsent requirements retroactively to the officers currently holding the affected po\xc2\xad\nsitions. Moreover, we believe that any attempt by Congress to, in effect, remove\nan executive officer by the retroactive application of new requirements for ap\xc2\xad\npointment would be unconstitutional.\nWhile we thus are confident that as a matter of law these incumbent office\xc2\xad\nholders have full authority to act, we recognize that this authority may be chal\xc2\xad\nlenged. In order to avoid any risk that litigation would cast doubt on the validity\nof any action taken by incumbent officeholders, you may wish to recommend\nthat the Attorney General issue a conditional designation of the incumbent of\xc2\xad\nficeholders as acting officials\xe2\x80\x94 a designation that would be employed only in the\nevent that a vacancy were determined to exist in a judicial proceeding adverse to\nour conclusion. In this manner the Department would both preserve its position\n1 The affected positions are the Director of the Bureau of Justice Assistance, the Director of the Office for Vic\xc2\xad\ntims o f Crime, and the Director of the United States Marshals Service.\n\n286\n\n\x0cthat the incumbent officeholders continue to occupy their offices and yet validate\ntheir actions in the unlikely event a court disagrees with this position.\nAnalysis\n\nAs part of the Anti-Drug Abuse Act, Congress changed the method of ap\xc2\xad\npointment of three officers of the Department of Justice. These officers, the Di\xc2\xad\nrector of the Bureau of Justice Assistance, the Director of the Office for Victims\nof Crime, and the Director of the United States Marshals Service, previously were\nappointed by the Attorney General. Under sections 6071, 7123, and 7608 of the\nAct respectively these officers are to be appointed by the President, by and with\nthe advice and consent of the Senate.2 Although each of the provisions purports\nto \xe2\x80\x9cestablish\xe2\x80\x9d an office, in point of fact the offices already exist either by explicit\nstatutory enactment or by a delegation from the Attorney General pursuant to 28\nU.S.C. \xc2\xa7 510 and these provisions do not in any way purport to change the func\xc2\xad\ntions of these offices. Moreover, neither the language nor legislative history of\nthese provisions suggests that Congress intended to abolish the existing offices\nand instantaneously replace them with \xe2\x80\x9cnew\xe2\x80\x9d offices bearing the same titles and\nperforming the same functions.3 Accordingly, we believe that these provisions\nare not to be construed to effect a removal of incumbent officeholders and thus\nthat the new advice and consent requirements do not apply retroactively to these\nofficials, but only to their successors.\nMoreover, a construction of the provisions that would effect a removal of the\nincumbent officeholders would raise the most serious constitutional questions.\nThe Department has consistently maintained that Congress cannot terminate the\nterms of incumbent officeholders. See, e.g., Letter for Senator William V. Roth,\nJr., from Robert A. McConnell, Assistant Attorney General, Office of Legisla\xc2\xad\ntive Affairs (June 20, 1984) (legislation that would have required the reconfir\xc2\xad\nmation of incumbent officeholders upon the election of a President was uncon\xc2\xad\nstitutional); Letter for David A. Stockman, Director, Office of Management and\nBudget, from Robert A. McConnell, Assistant Attorney General, Office of Leg\xc2\xad\nislative Affairs (June 27,1983) (legislation terminating terms of certain directors\n2 Section 6091 of the Anti-Drag Abuse Act of 1988,134 Cong. Rec. 33,194 (1988), amends 42 U.S C. \xc2\xa7 3741(b),\nwhich provided for the appointment of the Director of the Bureau of Justice Assistance by the Attorney General,\nby requiring that the Director \xe2\x80\x9cbe appointed by the President, by and with the advice and consent of the Senate.\xe2\x80\x9d\nSection 7123 of the Act, 134 Cong. Rec. 33,307 (1988), establishes within the Department of Justice an Office for\nVictims of Cnme, to be headed by a Director \xe2\x80\x9cwho shall be appointed by the President, by and with the advice and\nconsent of the Senate.\xe2\x80\x9d Section 7608 of the Act, 134 Cong Rec. 33,251 (1988), establishes the United States M ar\xc2\xad\nshals Service as a bureau within the Department of Justice. The Marshals Service is to be headed by a Director,\n\xe2\x80\x9cwho shall be appointed by the President, by and with the advice and consent of the Senate.\xe2\x80\x9d\n3 The only reference in the legislative history to Congress\xe2\x80\x99 intent regarding these provisions concerns the Di\xc2\xad\nrector of the United States Marshals Service. A section-by-section analysis of the U.S Marshals Service Act of\n1988, which eventually became section 7608 of the Anti-Drug Abuse Act of 1988, indicates that appointment of\nthe Director was made subject to the advice and consent of the Senate because it was \xe2\x80\x9cconsistent with the similar\nstatus accorded Assistant Attorneys General and heads of other major Department of Justice divisions.\xe2\x80\x9d 134 Cong.\nRec. 27,422 (1988). In addition, it was thought anomalous to have \xe2\x80\x9can Attorney General appointee supervising the\nactivities o f 93 Presidentially appointed Marshals.\xe2\x80\x9d Id\n\n287\n\n\x0cof Export Import Bank was unconstitutional). In particular, the Department has\nindicated that the retroactive application of an advice and consent requirement\nto an incumbent officeholder would unconstitutionally effect removal of that of\xc2\xad\nficer. See Memorandum for Fred F. Fielding, Counsel to the President, from\nTheodore B. Olson, Assistant Attorney General, Office of Legal Counsel (Nov.\n24,1982); Letter for Representative Chet Holifield from Joseph T. Sneed, Deputy\nAttorney General (Mar. 5,1973). Indeed President Nixon vetoed legislation that\nwould have applied a new advice and consent requirement to the incumbent Di\xc2\xad\nrector and Deputy Director of the Office of Management and Budget on the\nground such retroactive application would amount to a \xe2\x80\x9cforced removal by an\nunconstitutional procedure.\xe2\x80\x9d Veto Message of May 18, 1973, Pub. Papers of\nRichard Nixon 539 (1973).\nWe agree with this precedent and believe that retroactive application of AntiDrug Abuse Act\xe2\x80\x99s advice and consent requirements would unconstitutionally ef\xc2\xad\nfect a Congressional removal of officers of the United States who had been validly\nappointed by the Attorney General. Myers v. United States, 272 U.S. 52, 122\n(1926), makes clear that the removal of officers of the United States prior to the\nexpiration of their terms is vested exclusively in the President or in subordinate\nexecutive branch officials acting under his supervision. Indeed, the square hold\xc2\xad\ning of Bowsher v. Synar, 478 U.S. 714 (1986), is that Congress cannot remove\nofficers of the United States by means other than impeachment.4 Unless and un\xc2\xad\ntil Congress chooses to invoke its impeachment power, it cannot interfere with\nthe tenure of a validly-appointed executive officer.5\nIt is, of course, a cardinal principle of statutory construction that statutes should\nbe construed, if possible, so as to avoid constitutional questions. Association of\nMachinists v. Street, 367 U.S. 740,749 (1961); Ashwander v. TVA, 297 U.S. 288,\n347 (1936). In the absence of any indication of a legislative intent to apply these\nprovisions retroactively, and mindful of the serious constitutional objections that\nwould be raised by a contrary reading, we conclude that the advice and consent\nprovisions have prospective effect only and thus do not apply to the incumbent\nofficeholders.\nAlthough we have full confidence in the foregoing analysis, we note also that\nthe de facto officer doctrine, as least as traditionally understood, would place the\nacts of these officers beyond legal challenge regardless of defects in their titles.\n4 Congress can, o f course, enact legislation permanently abolishing an office, in which case the incumbent would\nno longer have a position to occupy.\n5 The fact that two of these offices (the Director of the United States Marshals Service and the Director of the\nOffice for Victims of Crime) were created by order of the Attorney General rather than by specific statutory en\xc2\xad\nactment does not change our analysis. See A tt\xe2\x80\x99y Gen. Order No. 516-73, 38 Fed. Reg. 12,917 (1973); Att\xe2\x80\x99y Gen.\nOrder No. 1079-84. Congress has by statute vested the Attorney General with the authonty to take certain mea\xc2\xad\nsures, including the creation of inferior offices within the Department of Justice, to carry out the functions of his\noffice. 28 U.S.C. \xc2\xa7 510. Congress has now chosen to give these offices a more explicit statutory basis. The fact re\xc2\xad\nmains, however, that these offices were ongm ally created pursuant to statutory authority Moreover, Congress has\nnot changed the functions of these offices* the Director of the United States Marshals Service and the Director of\nthe Office for the Victims of Crime, have essentially the same tasks as they had before the enactment of the AntiDrag Abuse Act Accordingly, these offices are analytically indistinguishable, for purposes of the retroactive ap\xc2\xad\nplication of the advice and consent requirement, from any office created explicitly by statute.\n\n288\n\n\x0cThe courts have traditionally held that \xe2\x80\x9c[a] person actually performing the duties\nof an office under color of title is an officer de facto, and his acts as such officer\nare valid so far as the public or third parties who have an interest in them are con\xc2\xad\ncerned.\xe2\x80\x9d National Ass\xe2\x80\x99n of Greeting Card Publishers v. United States Postal Ser\xc2\xad\nvice, 569 F.2d 570, 579 (D.C. Cir. 1976) (quoting United States ex rel. Doss v.\nLindsley, 148 F.2d 22,23 (7th Cir.), cert, denied, 325 U.S. 858 (1945)), vacated\nand remanded on other grounds, 434 U.S. 884 (1977). There is doubt, however,\nabout the continued viability of the traditional understanding of the doctrine, at\nleast in the D.C. Circuit, as a result of Judge Wright\xe2\x80\x99s opinion in Andrade v.\nLauer, 729 F.2d 1475 (D.C. Cir. 1984). There the court permitted a challenge to\nthe acts of allegedly improperly appointed officers, holding that the purpose of\nthe de facto officer doctrine (which the court identified as avoidance of whole\xc2\xad\nsale invalidation of past actions through collateral attacks by third parties) could\nbe served by requiring the plaintiff (1) to bring his suit at or around the time that\nthe challenged government action is taken, and (2) to prove that the agency or\ndepartment involved has had reasonable notice of the claimed defect in the offi\xc2\xad\ncer\xe2\x80\x99s title. Id. at 1496-97, 1499.\nAccordingly, in the event that our legal analysis is rejected the Department can\nno longer absolutely rely on the de facto officer doctrine to preclude legal chal\xc2\xad\nlenges to actions taken by these officials. Although we believe the risk that a court\nwould reject our analysis is slight, it may be determined that even this level of\nrisk is unacceptable. In that event we recommend that the Attorney General, pur\xc2\xad\nsuant to his authority under 28 U.S.C. \xc2\xa7 510, also designate the incumbent of\xc2\xad\nficeholders as acting officers. Because of our conclusion that the tenure of these\nincumbents has not been (and could not be) disturbed by the Anti-Drug Abuse\nAct, we stress that any designation of acting officer should be made conditional\nupon the existence of a vacancy in that office as determined by a final court or\xc2\xad\nder.\n\nConclusion\nWe conclude that the Anti-Drug Abuse Act of 1988 does not affect the tenure\nof the incumbent directors of the Marshals Service, the Bureau of Justice Assis\xc2\xad\ntance, and the Office for Victims of Crime and that these officeholders continue\nto have full authority to take any action necessary to fulfill their duties. We be\xc2\xad\nlieve, however, that the Attorney General may wish to consider issuing a condi\xc2\xad\ntional designation of the incumbents as acting officers in the unlikely event that\na final court order determines that the Anti-Drug Abuse Act has removed these\nofficials.\nD o u g l a s W . K m ie c\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n289\n\n\x0c'


b'D ecem ber 2, 1977\n\n77-66\n\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL, CIVIL\nRIGHTS DIVISION\nReorganization of Equal Employment Enforcement\nAuthority\xe2\x80\x94Concurrent Authority\n\nWe have considered the question of whether a reorganization plan\ncould, consistent with the Reorganization Act, grant concurrent author\xc2\xad\nity to the Equal Employment Opportunity Commission (EEOC) and\nthe Departm ent of Justice with respect to certain types of lawsuits. In\nour opinion, there is no legal bar to including such a provision in a\nreorganization plan.\n1.\n\nPertinent Provisions of Title V II of the Civil Rights A ct of\n1964\n\nBefore it was amended in 1972, \xc2\xa7 707 of Title VII, 42 U.S.C. 2000e-6\n(1970), granted the Attorney General authority to bring pattern or\npractice suits against private employers and labor unions.\nIn 1972, Title V II was amended by the Equal Employment Opportu\xc2\xad\nnity A ct, Public Law 92-261, 86 Stat. 103. As amended, \xc2\xa7707 provides\nthat, after the filing of a charge o f discrimination and the inability of\nE E O C to resolve the m atter through conciliation, EEO C may bring a\nlawsuit against a private employer or a union.1 42 U.S.C. 2000e-5(f)\n(1975 Supp.). In addition, the 1972 Act amended \xc2\xa7 707, 42 U.S.C.\n2000e-6 (Supp. V 1975), the section authorizing pattern or practice\nsuits.\nSection 707(c) was amended to provide that, effective 2 years after\nenactment o f the 1972 A ct, \xe2\x80\x9cthe functions of the Attorney General\nunder this section shall be transferred to . . . [EEOC], unless the\nPresident submits, and neither House of Congress vetoes, a reorganiza\xc2\xad\ntion plan . . . inconsistent with the provisions of this subsection.\xe2\x80\x9d 2 In\n1 T he litigation authority of E E O C does not extend to suits against State or local\ngovernments; such matters are to be referred by EEO C to the Attorney General.\n* Presumably, this provision refers to a reorganization plan sent to Congress before\nM arch 24, 1974.\n\n266\n\n\x0cMarch 1974, the transfer of functions took effect. During the interim\nperiod, from March 1972 to March 1974, the Attorney General and\nEEOC had concurrent authority to bring pattern or practice litigation\nagainst private firms and labor unions. See \xc2\xa7 707(e), Pub. L. No. 92-61,\n86 Stat. 107, 42 U.S.C. 2000e-5(f), 2000e-6(e) (Supp. V 1975).\nIn connection with the current project to reorganize enforcement of\nTitle VII and other laws prohibiting employment discrimination, the\nCivil Rights Division has raised the question whether the Reorganiza\xc2\xad\ntion A ct would permit a plan providing, in part, for transfer to the\nAttorney General of concurrent authority to bring suits against private\nemployers and unions under \xc2\xa7 707 of Title VII.\n2.\n\nThe Reorganization Act of 1977\n\nUnder the Act, 5 U.S.C. \xc2\xa7 903(a), the President may prepare and\ntransmit to Congress a reorganization plan when he determines that\norganizational changes \xe2\x80\x9care necessary to carry out any policy set forth\nin section 901(a) . . . .\xe2\x80\x9d The policies stated in the Act, 5 U.S.C.\n\xc2\xa7 901(a), are as follows:\n(1) to promote the better execution of the laws, the more effec\xc2\xad\ntive management of the executive branch and of its agencies and\nfunctions, and the expeditious administration of the public business;\n(2) to reduce expenditures and promote economy to the fullest\nextent consistent with the efficient operation of the Government;\n(3) to increase the efficiency of the operations of the Govern\xc2\xad\nment to the fullest extent practicable;\n(4) to group, coordinate, and consolidate agencies and functions\nof the Government, as nearly as may be, according to major\npurposes;\n(5) to reduce the number of agencies by consolidating those\nhaving similar functions under a single head, and to abolish such\nagencies or functions thereof as may not be necessary for the\nefficient conduct of the Government; and\n(6) to eliminate overlapping and duplication of effort.\nClearly, as a general matter, it would be contrary to policy numbered\n(6)\xe2\x80\x94elimination of \xe2\x80\x9coverlapping and duplication o f effort\xe2\x80\x9d\xe2\x80\x94to grant\nconcurrent jurisdiction to two agencies. Section 903(a) is not to be\nread, however, to require that a reorganization plan, or particular\nprovisions o f a plan, promote all of the policies o f \xc2\xa7 901(a). It is\nsufficient that a plan further any one of those policies. The present\nquestion of concurrent authority must be considered in context. The\noverall effect o f the proposed plan might be a significant reduction in\nduplication of Federal efforts to remedy employment discrimination.\nMoreover, it is likely that the proposed plan would assign significant\nnew responsibilities to EEOC, and this might justify supplementing\nEEO C\xe2\x80\x99s enforcement of \xc2\xa7 707 with enforcement by the Attorney Gen\xc2\xad\neral. Thus, shared jurisdiction over \xc2\xa7 707 might mean more effective\n267\n\n\x0cenforcement. Finally, coordination between EEO C and the Attorney\nGeneral would be entirely feasible. Presumably, before a suit could be\nbrought by the Attorney General, the procedures of \xc2\xa7 706 (that is, a\nconciliation proceeding before EEO C) would have to be followed.\nThe transfer of concurrent jurisdiction to the Attorney General could\nbe regarded as the transfer of \xe2\x80\x9cpart o f . . . [an agency\xe2\x80\x99s] functions,\xe2\x80\x9d\nwithin the meaning of 5 U.S.C.A. \xc2\xa7 903(a)(1). We are not aware of\nclose precedents under the prior reorganization statute, but some sup\xc2\xad\nport for our conclusion is provided by the 1972 amendment to \xc2\xa7 707(c).\nAs noted above, under that provision, the transfer o f the Attorney\nGeneral\xe2\x80\x99s authority to E E O C would not have taken place if an incon\xc2\xad\nsistent reorganization plan had gone into effect before March 1974.\nThere was no such plan, but the terms of \xc2\xa7 707(c) would have permit\xc2\xad\nted, as one possibility, a plan preserving the Attorney General\xe2\x80\x99s author\xc2\xad\nity and also the concurrent authority o f EEOC.\nLimits upon the nature or scope o f reorganization plans are pre\xc2\xad\nscribed in 5 U.S.C.A. 905, but none o f those limits is pertinent to the\npresent matter.\n3.\n\nConclusion\n\nIn conclusion, no provision of the Reorganization A ct would forbid\nincluding in a plan a provision transferring to the Attorney General\nconcurrent jurisdiction over \xc2\xa7 707 suits against private employees and\nunions. Therefore, the question whether to include such a provision is\nessentially a question of policy.\nL eon U lm a n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n268\n\n\x0c'


b'January 17, 1979\n\n79-6\n\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL,\nCRIMINAL DIVISION\nThe President\xe2\x80\x94Interpretation of 18 U.S.C. \xc2\xa7 603 as\nApplicable to Activities in the White House\n\nThis responds to your memorandum of November 30 requesting our\nopinion concerning the application of 18 U.S.C. \xc2\xa7 603 to activities in the\nWhite House involving the President.\' Your inquiry arises in connection\nwith a pending investigation of the allegation that during the course of an\nAugust 10, 1978 luncheon for about 20 Democratic Party donors and fund-\xe2\x80\x9d\nraisers that took place in the Family Dining Room of the White House, the\nPresident solicited contributions for a political purpose within the meaning\nof that criminal statute. This investigation is being conducted in accordance\nwith Title VI of the Ethics in Government Act of 1978, Pub. L. No.\n95-521, 92 Stat. 1824. Pursuant to \xc2\xa7 601 of that Act, 28 U.S.C. \xc2\xa7 592, where\nan allegation of criminal misconduct is made with regard to persons holding\ncertain high official positions in Government, including the Presidency, the\nAttorney General is charged with conducting a preliminary investigation of\nthe matter. If he determines that the matter warrants further investigation\nor if he has not determined within 90 days of receiving the information\n\xe2\x80\x9c that the matter is so unsubstantiated as not to warrant further investiga\xc2\xad\ntion or prosecution,\xe2\x80\x9d he is required to apply to a special division of the U.S.\nCourt of Appeals for the District of Columbia for the appointment of a\nspecial prosecutor. If the Attorney General concludes that the matter is\n\xe2\x80\x9c unsubstantiated,\xe2\x80\x9d he must file a memorandum to that effect with the\n\n1 Although your initial inquiry concerned the application of \xc2\xa7 603 to both the President\nand the Vice President, we understand that only its application to the President is now at ~\nissue, and have framed our discussion accordingly. In general, however, the analysis here set\nforth would apply to both the President and the Vice President.\nEditor\xe2\x80\x99s Note: The Special Prosecutor Division of the U.S. Court of Appeals for the District\nof Columbia Circuit granted leave to the Attorney General to disclose, in the public interest,\nhis report of February 1, 1979, on the above matter. The report is appended to this opinion.\n\n31\n\n\x0ccourt. In taking the required action, the Attorney General is not to deter\xc2\xad\nmine whether the allegations constitute a prosecutable offense or whether\nan indictment should be sought. No constitutional question is therefore\nraised as to whether a sitting President may be indicted, an issue seen by\nthe Watergate Special Prosecutor in 1974 as an open one.2\nTo assist you in making your recommendations to the Attorney\nGeneral, you have asked us to address the questions of statutory con\xc2\xad\nstruction presented by 18 U.S.C. \xc2\xa7 603 in this context. Two specific issues\nare involved: (1) whether a room in the White House reserved for the use\nof the President is a room \xe2\x80\x9c occupied * * * by any person mentioned in\nsection 602 [of title 18]\xe2\x80\x9d ; and (2) whether a room such as the Family Din\xc2\xad\ning Room is one \xe2\x80\x9c occupied in the discharge of official duties.\xe2\x80\x9d We believe\nthat the answer to the first of these questions is in the affirmative. The\nanswer to the second, a much more difficult issue, depends upon the cir\xc2\xad\ncumstances of the particular case. We have also summarized the com\xc2\xad\npeting views on a third question of statutory interpretation raised by \xc2\xa7 603,\ni.e., whether solicitation of a private person, rather than a Federal officer\nor employee, was intended to come within the terms of the Act. In light of\nour resolution of the second issue, we have not, however, reexamined the\nDepartment\xe2\x80\x99s past position on the third question.3\nI. The Statute\nSection 603 provides as follows:\nWhoever, in any room or building occupied in the discharge of\nofficial duties by any person mentioned in section 602 of this\ntitle, or in any naval yard, fort, or arsenal, solicits or receives any\ncontribution of money or other thing of value for any political\npurpose, shall be fined not more than $5,000 or imprisoned not\nmore than three years, or both.\nThe word \xe2\x80\x9c whoever\xe2\x80\x9d is broadly inclusive, replacing a reference to \xe2\x80\x9c no\nperson\xe2\x80\x9d contained in \xc2\xa7 603 as originally enacted in 1883.4 There is no in\xc2\xad\ndication that the 1948 enactment of title 18 into positive law, 62 Stat. 683,\nwhich changed the word \xe2\x80\x9c whoever\xe2\x80\x9d (defined by 18 U.S.C. \xc2\xa7 591 as inter\xc2\xad\nchangeable with the word \xe2\x80\x9c person\xe2\x80\x9d ) was intended to limit the sweep of\nthe initial, all-encompassing reference. Judicial construction of the\noriginal provision shortly after its enactment established that private citi\xc2\xad\nzens, as well as Government officers and employees, fell within the scope\nof its prohibition. See, United States v. Newton, 20 D.C. (9 Mackey) 226\n\n: See, Reply Brief for the United States, at 24-34, in United Stales v. Nixon, 418 U.S. 683\n(1974).\n1 We have not considered a fourth critical question, which turns primarily on matters of\nfact, i.e., whether a solicitation within the terms of the statute has occurred.\n4 Act of January 16, 1883, cl. 27, 22 Stat. 403, 407, as amended. This Act is commonly\nreferred to as the Pendleton Civil Service Act.\n\n32\n\n\x0c(1891).5 This construction is in accord with Congress\xe2\x80\x99 apparent intent that\n\xc2\xa7 603 apply to all persons.6\nWhile the broad prohibition in \xc2\xa7 603 is thus to be observed, its applica\xc2\xad\ntion is more narrowly limited to \xe2\x80\x9c any room or building occupied\xe2\x80\x9d by cer\xc2\xad\ntain persons for certain purposes. The phrase \xe2\x80\x9c any room or building\xe2\x80\x9d is\nrelatively straightforward. Since both \xe2\x80\x9c room\xe2\x80\x9d and \xe2\x80\x9c building\xe2\x80\x9d are men\xc2\xad\ntioned, it appears that Federal occupation of a single room in otherwise\nnon-Federal premises would not bring the whole of those premises within\nthe area encompassed by the statutory prohibition. On the other hand, the\ninclusion of a reference to buildings and not simply rooms indicates that\ncommon areas such as corridors, and not simply offices in actual use, fall\nwithin the scope of the statute.7 The meaning of the phrases \xe2\x80\x9c person men\xc2\xad\ntioned in section 602 of this title\xe2\x80\x9d 8 and \xe2\x80\x9c occupied in the discharge of\nofficial duties\xe2\x80\x9d is less clear.\nII. The Persons Mentioned\nThe bar on solicitation imposed by \xc2\xa7 603 applies only in rooms and build\xc2\xad\nings occupied by persons mentioned in Section 602 of title 18. Section 602\nprovides:\n\n\xe2\x80\x99 There, the court rejected the defendant\xe2\x80\x99s assertion that, to fall within the terms of the\nstatute, the person soliciting had to have been \xe2\x80\x9c either an employee of the Government of the\nUnited States, or one of the officers named in [the original versions of 18 U.S.C. \xc2\xa7\xc2\xa7 602, 606,\nor 607].\xe2\x80\x9d Instead, the court said, Congress could prescribe rules of conduct \xe2\x80\x9c to be observed\nnot only by officers and employees of the Government who shall occupy [the specified] places\nfor the time being, but also by the citizen who may for any purpose be allowed to go into these\nplaces.\xe2\x80\x9d 20 D.C. at.231. Relying on the plain language of \xc2\xa7 603, the court concluded that the\nprovision should be read as forbidding persons outside the Government from engaging in the\nforbidden activities in Government buildings. See also. United States v. Burleson, 127 F.\nSupp. 400, 402 (E.D. Tenn. 1954) (\xe2\x80\x9c Section 603 prohibits solicitation or receipt by anybody of\ncontributions in a Government building, or building occupied in whole or in part by Govern\xc2\xad\nment employees, or persons compensated by money derived from the Treasury of the United\nStates\xe2\x80\x9d ).\n* See, e.g., 14 Cong. Rec . 622 (1882) (Senator Coke) (\xc2\xa7 603 \xe2\x80\x9c applicable to all persons\xe2\x80\x9d ); id.\nat 636 (Senator Hawley) (\xe2\x80\x9c forbidding any person in the world\xe2\x80\x9d ).\n\xe2\x80\x99 It should be noted that \xc2\xa7 603 was revised in 1948 to prohibit solicitation or receipt of any\ncontribution for any political purpose \xe2\x80\x9c from any such person,\xe2\x80\x9d i.e., from any person men\xc2\xad\ntioned in \xc2\xa7 602. The change was intended \xe2\x80\x9c to make it clear that the section [would] not em\xc2\xad\nbrace State employees in its provisions [albeit that] [s]ome Federal agencies are located in State\nbuildings occupied by State employees.\xe2\x80\x9d See 62 Stat. 722; see also H. Rept. 304, 80th Cong.,\n1st sess. A51 (1947). Earlier draft versions of the criminal code revision did not accomplish\nsuch a change and the reasons for its introduction in the later versions are not explained. Com\xc2\xad\npare H. Rept. 152, 79th Cong., 1st sess. A47 (1945), with H. Rept. 152, Pt. 2, 79th Cong., 2d.\nsess. A46(1946). In 1951 these additional words were stricken because they had not been con\xc2\xad\ntained in the version of \xc2\xa7 603 adopted as part of the 1909 criminal code revision. See S. Rept.\n1020, 82d Cong., 1st sess. (1951), reprinted at 1951 U.S. Code Cong. & Adm. 2578, 2584. This\nnarrowing of the class of potential victims and then return to the statute\xe2\x80\x99s original scope does\nnot reveal any intention to alter the dimensions o f the zone in which such conduct toward a\nspecified victim class was to be prohibited.\n* As originally enacted both \xc2\xa7 603 and \xc2\xa7 606 referred to persons \xe2\x80\x9c mentioned in this act\xe2\x80\x9d\nrather than to persons \xe2\x80\x9c mentioned in section 602.\xe2\x80\x9d The current language of reference was\nadopted as part of the 1948 Criminal Code revision, 62 Stat. 722. This change appears to have\nno great significance, other than to focus the current inquiry more narrowly on \xc2\xa7 602 rather\nthan, in addition, upon other sections of the Pendleton Act.\n\n33\n\n\x0cWhoever, being a Senator or Representative in, or Delegate or\nResident Commissioner to, or a candidate for Congress, or in\xc2\xad\ndividual elected as, Senator, Representative, Delegate, or Resi\xc2\xad\ndent Commissioner, or an officer or employee of the United\nStates or any department or agency thereof, or a person receiving\nany salary or compensation for services from money derived\nfrom the Treasury of the United States, directly or indirectly\nsolicits, receives, or is in any manner concerned in soliciting or\nreceiving, any assessment, subscription, or contribution for any\npolitical purpose whatever, from any other such officer,\nemployee, or person, shall be fined not more than $5,000 or im\xc2\xad\nprisoned not more than three years or both.\nThe language of \xc2\xa7 602 can be construed in a variety of ways. The specific\nmention of Senators, Representatives, and Delegates without a similar ex\xc2\xad\npress reference to the President and Vice President might be interpreted to\nmean that these high-ranking officers were not meant to be included\nwithin the scope of the statute.\xe2\x80\x99 We believe, however, that the inclusion of\nspecific references to legislative officers may more plausibly be explained\nby congressional intent to override a decision of the Attorney General that\nSenators and Representatives did not fall within the scope of an earlier\nprovision, enacted in 1876, upon which \xc2\xa7 602 was closely modeled.10 It\nmight also be argued that the language \xe2\x80\x9c any person receiving any salary or\ncompensation for services from money derived from the Treasury of the\nUnited States * * * \xe2\x80\x9d extends on its face to anyone, including the Presi\xc2\xad\ndent, who is paid from Treasury funds." This phrase could, on the other\nhand, be said to serve a distinct purpose in reaching Government\n\n\xe2\x80\x99 The Vice President is often regarded as an officer of the legislative branch by virtue of his\nresponsibilities as President of the Senate. The failure to include a reference to the Vice Presi\xc2\xad\ndent along with Senators, Representatives, and Delegates might therefore be said to raise the\nimplication that neither he nor the President in whose stead he may be called to serve were\nmeant to fall within the scope of \xc2\xa7 602. The unique nature of the Vice Presidency was relied\nupon by Acting Attorney General Laurence Silberman in a 1974 opinion that the language\n\xe2\x80\x9c officer or employee of the executive branch\xe2\x80\x9d in 18 U.S.C. \xc2\xa7 208 did not encompass the Vice\nPresident. See letter to Howard N. Cannon, Chairman, Committee on Rules and Ad\xc2\xad\nministration, U.S. Senate (Sept. 20, 1974). Reliance was also placed on the statutory scheme\nrequiring an officer having a financial interest to disqualify himself, a prospect not\nreasonably intended to extend to the President and, it may be inferred, to the Vice President;\nthe waiver arrangement included in the statute which assumes the existence of an \xe2\x80\x9c official\nresponsible for appointment;\xe2\x80\x9d and specific legislative history expressing the view that legisla\xc2\xad\ntion in the area of conflicts of interest should treat the President and Vice President in a\nunique fashion. None of these considerations exists in the present case.\n10 17 Op. A tt\xe2\x80\x99y Gen. 419 (1882).\n\' 1 Section 602, as originally enacted, did not list persons receiving salary or compensation\nderived from the Treasury o f the United States among the class of persons forbidden from\nsoliciting or receiving contributions but only among the class o f persons who could not be\nsolicited. This arrangement was altered in 1925 as a result of the Federal Corrupt Practices\nAct of 1925, 43 Stat. 1073. The amendment to \xc2\xa7 602 was offered on the floor of the House\nwithout any detailed explanation of the drafters\xe2\x80\x99 intent. See 65 C o n g . R e c . 10329 (1924)\n(Representative Cable).\n\n34\n\n\x0ccontractors and other such persons not included within the section\xe2\x80\x99s \xe2\x80\x9c of\xc2\xad\nficer or employee\xe2\x80\x9d language, rather than expanding the class of covered\n\xe2\x80\x9c officers\xe2\x80\x9d to include the President if it would not otherwise do so. Fi\xc2\xad\nnally, it might be contended that the word \xe2\x80\x9c officers\xe2\x80\x9d is used in a narrow\nconstitutional sense to denominate persons appointed by the President or\nheads of departments whose positions satisfy the traditional requirements\nof office described in the Germaine case,12 and not elected officers such as\nthe President and Vice President. It has, however, been recognized that\nthe critical consideration in determining the meaning of the word\n\xe2\x80\x9c officer\xe2\x80\x9d is not compliance with the Germaine standards alone, but rather\nthe intent of Congress.13 That intent, in this case, is most clearly revealed\nby the debate on the 1883 Pendleton Act.\nSignificantly, as was often mentioned in the debate, the problem of\n\xe2\x80\x9c political assessments\xe2\x80\x9d \xe2\x80\x94the demand for and collection from Govern\xc2\xad\nment employees of a percentage of their salary to support the reigning\npolitical party and its campaign activities\xe2\x80\x94had been addressed in 1876 by\nmeans of an amendment to an appropriation bill, which forbade \xe2\x80\x9c all ex\xc2\xad\necutive officers or employees of the United States not appointed by the\nPresident with the advice and consent of the Senate * * * [from] re\xc2\xad\nquesting, giving to, or receiving from any other officer or employee of the\nGovernment, any money * * * for political purposes.\xe2\x80\x9d 14 This 1876 pro\xc2\xad\nvision is, however, not the only relevant precursor to the 1883 legislation.\nIn 1867 a provision which, on pain of dismissal, prohibited any \xe2\x80\x9c officer or\nemployee of the Government\xe2\x80\x9d from requiring \xe2\x80\x9c any workingman in any\nnavy yard to contribute or pay any money for political purposes\xe2\x80\x9d was\npassed as a rider to an appropriation bill.15 The legislative history of this\nprovision suggests that it was meant to address abuses by such highranking officials as the Secretary of the Navy.16 It therefore seems clear\nthat where Congress intended to limit the sweep of legislation of this sort,\nit did so expressly, as was the case in 1876. Despite the precedent provided\nby the 1876 provision, however, most of the proposed bills on the subject\no f political assessments17 and \xc2\xa7 602 as finally enacted contained no similar\nexpress indication that all executive officials were not to be included with\xc2\xad\nin its scope. Indeed, on at least one occasion, Senator Pendleton, in an im\xc2\xad\npassioned speech, decried just that sort of technical distinction between\n\nl! United States v. Germaine, 99 U.S. 508 (1878).\nIJ 40 Op. A tt\xe2\x80\x99y Gen. 294, 297 (1943); Steele v. United States, No. 2, 267 U.S. 505, 507\n(1925); United States v. Hendee, 124 U.S. 309 (1888).\n14 Act of August 15, 1876, ch. 287, 19 Stat. 143, 169. As originally enacted, this provision\nprovided that violators would be deemed guilty of a*misdemeanor and fined $500; they would\nalso be discharged. This provision is now codified at 5 U.S.C. \xc2\xa7 7323; a violation is no longer\ndeemed a misdemeanor and only the penalty of removal has been retained.\n" Act of March 3, 1867, c. 172, 14 Stat. 489, 492.\n\'* See C o n g . G l o b e , 39th Cong., 2d sess. 1948 (1867) (Senator Wilson).\n" But see 14 C o n g . R e c . 21 (1882) (Springer proposal to amend 1876 provision to prohibit\nany Member of Congress, Presidential appointee \xe2\x80\x9c or other person\xe2\x80\x9d from engaging in the\nsolicitation of Federal employees on pain o f criminal fine, but not removal from office).\n\n35\n\n\x0cPresidential appointees and other Federal officers.18 The congressional\nintent that those officers formerly excluded from the scope of the provi\xc2\xad\nsion were henceforth to be included within the class of persons governed\nby the terms of \xc2\xa7 602 and its compansion provisions thus seems rather\nclear.\nIt does not necessarily follow, however, that the President himself, and\nnot simply Presidential appointees, were similarly intended to be brought\nwithin the reach of these new provisions. One brief statement made by\nSenator Edmunds, reporting a bill developed by the Judiciary Committee\nin response to a resolution requesting that committee to consider the prob\xc2\xad\nlem of political assessments, is particularly noteworthy:\nI am instructed by the [Judiciary] Committee * * * to report an\noriginal bill which I send to the Chair to be placed upon the\nCalendar. And I am authorized by the Committee to make this\nstatement that in the draft of the bill it is not the purpose of the\nCommittee to create any implication as to the right of the legisla\xc2\xad\ntive power to restrain the President in regard to the matters in\nquestion. [14CONG. Re c . 600(1882).]\nThis oblique statement could signify that Congress did not intend to bring\nthe President within the scope of 18 U.S.C. \xc2\xa7 602, \xc2\xa7 603, \xc2\xa7 606, or \xc2\xa7 607,\nprovisions which in large part were modeled upon the Judiciary Com\xc2\xad\nmittee bill.19 It is, on the other hand, evident that Congress was particu\xc2\xad\nlarly sensitive to the important constitutional issue raised by any attempt\nto limit the President\xe2\x80\x99s discretion with regard to the removal of his ap\xc2\xad\npointees as would have been the case under \xc2\xa7 3 of the bill, the prohibition\non removal now found in 18 U.S.C. \xc2\xa7 606.20 Seen in this light, Senator Ed\xc2\xad\nmunds\xe2\x80\x99 statement has completely contrary implications, suggesting that a\ncommittee disclaimer was necessary since the President was indeed re\xc2\xad\ngarded as an executive officer of the United States whose politically\nmotivated discharge of a direct subordinate was seen to fall within the\nscope of the bill.\nSupport for the latter interpretation and, we believe, critical evidence\nsuggesting that the President falls within the class of persons governed by\nthe bill, is found in a subsequent discussion of \xc2\xa7 606, which, in a fashion\nsimilar to \xc2\xa7 603, refers to \xe2\x80\x9c officers or employees of the United States\n\n" See 13 C o n g .\n\nR ec.\n\n5331-5332 (1882)!\n\n" 14 C o n g . Re c . 643 (1882) (Senator Maxey).\n\n10 The power of Congress to limit the President\xe2\x80\x99s power of appointment and removal was\noften debated in connection with the related debate on Senator Pendleton\xe2\x80\x99s Civil Service bill.\nSee, e.g., 14 C o n g . R e c . 608 (1882) (Senator Van Wyck). Continuing disagreement regarding\nthis power may well have caused the Judiciary Committee to request Senator Edmunds to\nmake such a disclaimer.\n\n36\n\n\x0cmentioned in Section 602.\xe2\x80\x9d 21 Senator Hawley, who offered the amend\xc2\xad\nment to the Pendleton Civil Service bill which in large part incorporated\nthe Judiciary Committee\xe2\x80\x99s proposal for a separate bill addressing the\nproblem of political assessments, described a correction he had made in\nthe language of his proposal as follows:\n[T]his clause, \xe2\x80\x9c by reason of any vote such officer or employe has\ngiven or withheld, or may purpose to give or withhold, at any\npolitical election,\xe2\x80\x9d has been striken out. On a moment\xe2\x80\x99s thought\nit was seen that that came in conflict with what is universally ad\xc2\xad\nmitted to be the right o f a Chief Executive to make appointments\nin a certain branch of controlling offices in accordance with his\nown political faith. That he has a right to do, and he could not\nconduct the Government without it * * *. That would have for\xc2\xad\nbidden, as the draft originally stood by an oversight, the Presi\xc2\xad\ndent of the United States from changing his attorney-general\nfrom one party to another, or changing a foreign minister, or\nperhaps even changing a cabinet minister. So that part is\nwithdrawn, and it now only forbids employes collecting from\neach other, and forbids persons going into the Government\nrooms and offices and there collecting money for political pur\xc2\xad\nposes. That is clearly a thing we have a right to do. Then it for\xc2\xad\nbids degrading or discharging a man for giving or not giving\nmoney. All three of these things are clearly within our legitimate\nfunction. [14CONG. Rec . 622(1882).]\nIt is clear, therefore, that he intended the President to be included among\nthe \xe2\x80\x9c officers\xe2\x80\x9d governed by the bill. While narrowing the scope of \xc2\xa7 606 to\nlimit its sweeping bar on removal for what in essence would simply be\npolitical affiliation as evidenced by an officer\xe2\x80\x99s past voting record,\nSenator Hawley left untouched the prohibition on removal for failure to\nprovide political support in the form of monetary contributions. He thus in\nlarge measure eliminated the kind of constitutional concern that may have\nbeen the basis for the Judiciary Committee\xe2\x80\x99s earlier disclaimer. While a\nsimilar question concerning the application of \xc2\xa7 606 to the President was\nsubsequently raised by Senator Jones at the close of debate on the political\nassessments bill,22 no response was deemed necessary, probably because\n\n21 Section 606 provides:\nWhoever, being one of the officers or employees of the United States mentioned in\nsection 602 of this title, discharges, or promotes, or degrades, or in any manner\nchanges the official rank or compensation of any other officer or employee, or prom\xc2\xad\nises or threatens so to do, for giving or withholding or neglecting to make any con\xc2\xad\ntribution of money or other valuable thing for any political purpose, shall be fined not\nmore than $5,000 or imprisoned not more than three years, or both.\n21 See 14 C o n g . R ec. 670 (1882):\nWith respect to the third section o f the bill [18 U.S.C. \xc2\xa7 606], I should like to ask the\nSenator from Vermont if the word \xe2\x80\x98officer\xe2\x80\x99 as used here can be held to include the\nPresident of the United States? Because if so it would present to my mind a very\nserious and embarrassing objection to this part of the bill * * *.\n(Continued)\n\n37\n\n\x0cthe Jones statement failed to take into account the significant degree to\nwhich the Hawley correction had narrowed the scope of the \xc2\xa7 606 prohibi\xc2\xad\ntion on removal.\nAdditional statements in the course of debate evidencing a concern that\nthe President, too, had been involved in political assessment abuses pro\xc2\xad\nvide further evidence in support of the view that the President was not\nthought to be outside the intended scope of the 1883 political assessment\nlegislation.23 So, too, do general statements that the actions of \xe2\x80\x9c every\nofficer and employe of the Government who can be thought o f \xe2\x80\x99 and \xe2\x80\x9c any\nof the officers of the Government of any rank or degree\xe2\x80\x9d were to be re\xc2\xad\nstricted pursuant to those provisions.24 These broad statements are partic\xc2\xad\nularly noteworthy in a context where Congress could reasonably conclude\nthat all schemes involving any Government official\xe2\x80\x99s efforts to coerce a\nsubordinate to contribute funds to a political cause constituted an abuse of\npower, a violation of the rights of the subordinate, and, a consideration\nnot insignificant in their eyes, a patently inequitable method for diverting\nfunds appropriated for employee salaries into partisan hands. Such policy\nconsiderations undoubtedly apply even more strongly to persons closer to\nthe pinnacle of the Government hierarchy where power is most signifi\xc2\xad\ncantly concentrated and the potential for coercion correspondingly great.\nParticularly where only criminal penalties were provided rather than pro\xc2\xad\nvision made for discharge or removal of an offending official, policy\nreasons for prohibiting such abuses of power by the President as much as\nby any other Government official are clearly present.\nA number of arguments based on the language of \xc2\xa7 602 and certain state\xc2\xad\nments contained in the legislative history of the Pendleton Act might be\ncited in support of the view that the President does not come within the\nclass of persons mentioned in that provision. However, the better view,\nin our judgment, is that the President does, indeed, fall within the terms\nof that provision.\nIII. Discharge of Official Duties\nNotwithstanding the application of \xc2\xa7 603 to rooms reserved for the use\n\n(Continued)\nHowever anxious I may be in common with those around me to reach legitimate civilservice reform, I shall not throw myself in the path of the Constitution to do it. If the\nofficer who controls the executive power of this Government has the right under the Con\xc2\xad\nstitution to remove, it would be a most serious question if an issue should be made be\xc2\xad\ntween the inferior employe and that high official as to the causes of removal * * *.\nSee, e.g., 13 C o n g . Re c . 5331 (1882) (Senator Conger); id. at 5339 (Senator Hale). See\nalso, id. at 4859 (Representative Kasson) (assuming that President was covered by proposed\namendment referring to \xe2\x80\x9c any Executive officer or employee of the United States\xe2\x80\x9d ).\n24 14 C ong. Rec. 636 (1882) (Senator Hawley). But see, id. at 641 (Senator Sherman)\n(describing a proposed amendment framed in terms of \xe2\x80\x9c executive officers\xe2\x80\x9d as embracing\n\xe2\x80\x9c every employe of the Government, from postmasters down * * *\xe2\x80\x9d but apparently doing\nso with the intent to show that such persons were within the scope of the amendment, not\nthat others were excluded therefrom).\n\n38\n\n\x0cof the President generally, an issue is nevertheless presented whether\nrooms in the White House are \xe2\x80\x9c occupied in the discharge of official\nduties.\xe2\x80\x9d\nSignificantly, the statute is not framed in terms of property owned or\nheld by the United States; it rather adopts a functional test, focusing on\nareas used by Federal personnel while they are conducting the Govern\xc2\xad\nment\xe2\x80\x99s business.25 At the same time, however, no indication is given\nwhether the word \xe2\x80\x9c occupied\xe2\x80\x9d is intended to refer only to those areas in ac\xc2\xad\ntual use, to those areas within the zone of normal use, or both.\nThe legislative history specifically addressing the meaning of this phrase\nis limited. \xe2\x80\x9c Public buildings\xe2\x80\x9d were regarded as within the scope of the\nstatute;26 privately held residences such as lodging houses were n o t.27 More\ninsight can, however, be gained by consideration of the overall statutory\nscheme.\nThe four companion provisions passed in 1883 constitute a carefully\ncrafted system of overlapping prohibitions designed to eliminate the abusive\npractice of political assessments. The enactment was intended (1) to elimi\xc2\xad\nnate pressures for political contributions relating to Federal employment\nboth on and off the job (by banning solicitation and receipt of contribu\xc2\xad\ntions and gifts between Federal officers and employees\xe2\x80\x9418 U.S.C. \xc2\xa7\xc2\xa7 602\nand 607), and (2) to make unlawful all political pressures on the job (by\nbanning solicitation on the job site by any person for any political purpose\nor intimidation with regard to job tenure, rank or compensation\xe2\x80\x94 18\nU.S.C. \xc2\xa7 603 and 606).2\xe2\x80\x9c In order to accomplish the latter purpose, \xc2\xa7 603\nwent beyond a prohibition of actual physical disruption of the work proc\xc2\xad\ness,2\xe2\x80\x99 and beyond a less all-encompassing bar on solicitation of Federal\nemployees themselves30 to prohibit any sort of solicitation or receipt on\nwork premises by or from any person. It sought, in effect, to create for\nFederal workers a neutral job site free from political solicitation.\nThis arrangement has dual significance. It is apparent that Congress\n\n\xe2\x80\x9d Congress\xe2\x80\x99 action in adopting \xc2\xa7 603 was characterized as an exercise o f its power to con\xc2\xad\ntrol Government property in a business rather than in a political sense. See 14 C o n g . R e c .\n623 (1882) (Senator Coke); id. at 669 (Senator Edmunds).\n\xe2\x80\x9c See, id. at 625 (Senator Williams); id. at 636 (Senator Hawley); id. at 640, 670 (Senator\nJones).\n17 See, id. at 622 (Senator Jones).\n!1 Senator Harrison described the proposed scheme as an attempt to \xe2\x80\x9c remove from all\nthose in the official service of the United States any other influence or control in their giving\nthan that which may operate upon a private individual.\xe2\x80\x9d Id. at 639.\n\xe2\x80\x9d See, e.g., United States v. Thayer, 209 U.S. 39, 42 (1908) \xe2\x80\x9c It appears to us no more open\nto doubt that the statute prohibits solicitation by written as well as spoken words * * *. The\npurpose is wider than that of a notice prohibiting book peddling in a building. It is not, even\nprimarily, to save employes from interruption or annoyance in their business. It is to check a\npolitical abuse * *\n)0 See 14 C o n g . R e c . 638 (1882) (Senator Hawley) (\xe2\x80\x9c no human being could, inside of\nUncle Sam\xe2\x80\x99s buildings or grounds, solicit in any way anybody for a single cent\xe2\x80\x9d ). See also\nnote 7, supra, discussing the 1948 and 1951 amendments which altered the scope of \xc2\xa7 603 in\nthis regard.\n\n39\n\n\x0cintended \xc2\xa7 603 to serve as a mechanism that would remove all possibility\no f political solicitations being addressed to Federal employees during the\ncourse of their employment. It therefore follows that Federal premises\nshould be regarded as \xe2\x80\x9c occupied\xe2\x80\x9d both where at a particular time an\nemployee is actually engaged in work in a particular area and, more\ngenerally, where a group of employees routinely utilize larger areas in the\ncourse of their regularly assigned responsibilities.31 Similarly, in order for\nthe statutory bar to be effective, it seems only reasonable that, along with\nactual office or work space, common areas such as cafeterias and rest\nrooms provided on the Federal premises for use during short breaks from\nthe performance of official duties should be seen to fall within the terms of\nthe statute.32 Finally, it is clear that the mere subjective intent that a par\xc2\xad\nticular conversation or transaction conducted on Federal premises be re\xc2\xad\ngarded as private cannot have the effect of taking an area in which it oc\xc2\xad\ncurs outside the zone of \xe2\x80\x9c occupation] in the discharge of official duties.\xe2\x80\x9d\nAt the same time, it is apparent that in developing this statutory scheme,\nCongress intended to distinguish between Federal employees\xe2\x80\x99 public and\nprivate lives. A significant portion of the Senate debate on the political as\xc2\xad\nsessment portion of the Pendleton Act and related companion legislation\nwas devoted to proposals to extend \xc2\xa7 603 and \xc2\xa7 606 to cover employee con\xc2\xad\ntributions for any political purpose which might be made outside the job\nsite anywhere in the District of Columbia, or in other enclaves within exclu\xc2\xad\nsive Federal jurisdiction,33 and to bar any solicitation sent through the mails\nto any Federal officer for any political purpose.34 These proposals,\n\n51 There is at least one suggestion in the legislative history of \xc2\xa7 603 that solicitation during a\nprivate meeting with a clerk not engaged in official duties at a time when all other clerks nor\xc2\xad\nmally occupying a public building had left for the day would not fall within the scope of the\nstatute. See 14 C ong . Re c . 669 (1882) (Senator Morgan). In citing this example the speaker\napparently assumed that the clerk\xe2\x80\x99s office was neither actually occupied in the discharge of\nofficial duties nor included in an area more generally being utilized by Government\nemployees acting in the course of their employment. Depending on the circumstances,\nhowever, reliance on this example may no longer be warranted, for even where an individual\nemployee is not himself engaged in official business, some substantial portion o f the premises\nin which an after-hours meeting might take place may in instances be \xe2\x80\x9c occupied in the\ndischarge of official duties\xe2\x80\x9d by security guards or maintenance and cleaning personnel. While\nit might still be contended that an after-hours meeting in a part of a public building not\ngenerally patrolled by security guards or occupied by cleaning personnel would not fall\nwithin the terms of the statute, at least where the employee who has arranged the meeting is\nnot actually engaged in the performance of official duties, and while other statements in the\ncourse of legislative debate and judicial decision may suggest a contrary result, see notes 5\nand 30, supra, we need not reach that question here.\n12 Such areas are, for example, regarded as occupied in the discharge of official duties for\npurposes of the workers\xe2\x80\x99 compensation laws. See, e.g., 82 Am. Jur. 2d, W orkmen\xe2\x80\x99s Com\xc2\xad\npensation \xc2\xa7\xc2\xa7 271-272, at 57-59 (1976).\n11 See 14 C o n g . R e c . 621-630 (1882) (Slater amendment prohibiting solicitation or receipt\nfor any political purpose); id. at 639-642 (Vest amendment similar to Slater amendment);\nid. at 644 (George amendment broadening \xc2\xa7 603 to include \xe2\x80\x9c the District of Columbia, or any\nroom or building occupied * * *\xe2\x80\x9d ); id. at 666-667 (Beck substitute prohibiting any contri\xc2\xad\nbution for any political purpose); id. at 667-670 (Morgan amendment prohibiting contribu\xc2\xad\ntion for political purpose to Senators, Representatives, or Delegates or any person within the\nexclusive jurisdiction o f the United States).\n!< Id. at 650 (George amendment); id. at 670 (Groome amendment).\n\n40\n\n\x0chowever, were not accepted, and the initial distinction between on-the-job\nand off-the-job restrictions was carefully preserved. Although the debate\non proposed amendments was not specifically couched in First Amend\xc2\xad\nment terms, the Supreme Court in United States v. Thayer, supra, at 42,\nobserved that \xe2\x80\x9c [t]he limits of the Act, presumably, were due to what was\nconsidered the reasonable and possibly the constitutional freedom of\ncitizens, whether officeholders or not, when in private life * * *.\xe2\x80\x99\xe2\x80\x9935 in\nkeeping with the provision\xe2\x80\x99s plain language and this evidence of congres\xc2\xad\nsional intent to distinguish between Federal employees\xe2\x80\x99 public and private\nlives, it therefore seems appropriate to interpret the phrase \xe2\x80\x9c in the\ndischarge of official duties\xe2\x80\x9d as limiting solicitation in premises held or\nused by Federal personnel, but only to the extent that their presence there\nis work-related.\nThus, a distinctly different case is presented where certain premises are\nheld by the Federal Government for the purpose of a personal residence\nrather than as a business office or other similar work site. There is, of\ncourse, a connection between the occupancy of such premises and the\nstatus of an individual, such as the President, as a Federal officer. If an\narea is specifically designated to serve at all times purely as a private\nresidence, however, it can hardly be said to be occupied \xe2\x80\x9c in the discharge\nof official duties.\xe2\x80\x9d Instead, it represents a haven, akin to the private lodg\xc2\xad\ning mentioned in the course of congressional debate on \xc2\xa7 603, to which\nthat provision was not intended to apply. Such a distinction was recog\xc2\xad\nnized in the Criminal Division\xe2\x80\x99s 1978 determination that private residences\nof Foreign Service employees that are either owned or rented by the U.S.\nGovernment, and schools, commissaries, recreational facilities, and the\nlike that are operated by employee associations with governmental finan\xc2\xad\ncial assistance do not fall within the terms of \xc2\xa7 603.36 Areas within the\ndiscrete private residence area included in the White House mansion,\nalthough not physically detached from areas formally given over to offi\xc2\xad\ncial office space or to areas used for ceremonial functions, may therefore\nreasonably be seen to fall outside the reach of the statute.37 Areas rou\xc2\xad\ntinely used in connection with the discharge of official duties by persons\n\n\xe2\x80\x9c This statement was made in the course of a discussion in which the Court dismissed\ndefendant\xe2\x80\x99s argument that the Senate\xe2\x80\x99s rejection of the Groome amendment (which would\nhave prohibited all mail solicitations of Federal employees for political purposes) evidenced\nan intention not to treat any mail solicitation as within the scope of \xc2\xa7 603. See also, Ex parte\nCurtis, 106 U.S. 371 (1882), upholding the 1876 act\xe2\x80\x99s narrow limitation on solicitation of\nGovernment employees by Government officials while not prohibiting all political\ncontributions.\n\xe2\x80\x99\xe2\x80\xa2 Letter from Benjamin R. Civiletti, Assistant Attorney General, Criminal Division, to\nK.E. Malmborg, Assistant Legal Advisor for Administration, Department o f State\n(March 17, 1978).\n*\xe2\x80\x99 Although the private residence area may be serviced by Government personnel who pro\xc2\xad\nvide certain sorts of personal, maintenance, or security services, we do not believe that their\npresence would convert an area that is otherwise a private residence into one occupied \xe2\x80\x9c in the\ndischarge of official duties.\xe2\x80\x9d\n\n41\n\n\x0cother than the President\xe2\x80\x99s family (e.g., the White House mess) would not,\nhowever, be similarly excluded.\nA more difficult question is posed with regard to political solicitations\noccurring in rooms which are not located within the purely private residen\xc2\xad\ntial portion of the White House and which may be used either for personal\nfunctions by the President and his family or for official business. As noted\nabove, rooms ancillary to offices or other such work space which are used\nby employees in connection with their work would ordinarily be regarded\nas falling within the terms of \xc2\xa7 603. In most cases, therefore, it would be\nappropriate to treat both areas actually being used in the discharge of of\xc2\xad\nficial duties and those more than occasionally used for such purposes as\nwithin the zone of occupation for purposes of \xc2\xa7 603. This application of\nthe statute gives effect to Congress\xe2\x80\x99 intent that no haven be available on\nFederal premises from which political solicitations could be addressed to\nGovernment workers acting in the discharge of their official duties.\nAn attempt might similarly be made generally to classify areas within\nthe mansion portion of the White House outside of the strictly private\nfamily residence as predominantly used for official or personal purposes.\nOn the one hand, rooms on the first floor of the mansion which are used\nby the President for official functions, such as the entertainment of\nforeign dignitaries and Members of Congress, can in a certain sense be\nsaid to be occupied by the President in the discharge of his official duties\nas Head of State and Chief Executive. Participation in ceremonial dinners\nand attendance at other gatherings in furtherance of the conduct of the\nPresident\xe2\x80\x99s constitutional duties are ordinarily regarded as essential parts\nof the President\xe2\x80\x99s job. Under this approach, therefore, if White House\nrooms are normally used for official functions, they would be viewed as\n\xe2\x80\x9c occupied in the discharge of official duties\xe2\x80\x9d within the terms of 18\nU.S.C. \xc2\xa7 603, even though they are used for social functions.\nOn the other hand, it could be said that the President\xe2\x80\x99s role as host, even\nduring official functions, is a private one akin to that of an individual of\xc2\xad\nfering hospitality to his friends and business associates in his own home.\nWhere the predominant use of a room is for entertainment by a single per\xc2\xad\nson serving in such a capacity, it is by nature personal and should be seen\nto come within the residence exception previously described. This view\nmight be bolstered by the common sense perception that where a room is\nutilized for purposes of entertainment of this sort there can be no doubt\nthat it represents a departure from the more traditional work site Congress\nintended by the enactment of \xc2\xa7 603 to protect from politicization. The\nclear purpose of Congress in protecting Federal employees from political\npressure in connection with their jobs would not seem reasonably to ex\xc2\xad\ntend to controlling conduct or persons attending such gatherings which do\nnot in most cases involve significant numbers of Federal employees and\nwhich, although in one sense \xe2\x80\x9c official,\xe2\x80\x9d do not involve what is generally\nrecorded as the transaction of the Government\xe2\x80\x99s \xe2\x80\x9c business.\xe2\x80\x9d\nGiven the quite peculiar nature of the White House and the unique\n42\n\n\x0cresponsibilities of the Presidency, it is our view that a third approach is\nmore appropriate. Necessarily some rooms in the White House may serve\nin turn as space adjunct to the private residence area and as space adjunct\nto the areas used for business or ceremonial purposes. Such rooms cannot\nbe properly classified as either \xe2\x80\x9c personal\xe2\x80\x9d or \xe2\x80\x9c official\xe2\x80\x9d on any perma\xc2\xad\nnent basis. The historical fact is that a single set of rooms has been made\navailable and has been utilized by this and past Presidents, at times in a\npersonal caspacity, and at times for official purposes. Even though such\nrooms are sui generis and cannot reasonably be classified on a permanent\nbasis as fundamentally residential or nonresidential in character, the\nreasoning described above regarding the application of \xc2\xa7 603 would never\xc2\xad\ntheless apply. We see no reason why the exemption for private residential\nspace discussed previously should not apply to a room that assumes that\ncharacter only on a part-time or temporary basis when used for a personal\nor political gathering. In order, however, for Congress\xe2\x80\x99 intent that the bar\ncreated by \xc2\xa7 603 effectively prohibit any sort of political solicitation dur\xc2\xad\ning the course of Federal employment, more than a subjective intent to use\nsuch a room for private purposes is necessary. If it is to be said with any\ncertainty that actions on premises that might either be regarded as\noccupied for official or for private purposes do not fall within the scope of\n\xc2\xa7 603, evidence of some sort of objective advance determination concern\xc2\xad\ning the nature of their use would in most cases be required. Information\nregarding past practice with respect to particular rooms, arrangements for\nreservation and use of such areas, and handling of attendant costs for\nbudgetary and accounting purposes may prove helpful in this regard.\nBudgetary considerations may be particularly significant, for where the\nPresident has determined that a room has been used for official purposes\nso as to warrant coverage of costs with public funds it would seem that he\nhas implicitly recognized that such a meeting was conducted in the\ndischarge of official duties.\nIn our judgment, consideration of these criteria as they apply to the\nfacts as we understand them suggests that the August 10 meeting probably\nfalls outside the scope of \xc2\xa7 603. We are informed that according to the\nFederal Bureau of investigation (FBI) report the Family Dining Room has\nin the past generally been used for official occasions involving a small\nnumber of guests where use of the State Dining Room would be inappro\xc2\xad\npriate. While a separate private family dining room has, since 1961, ex\xc2\xad\nisted on the second floor of the White House in the President\xe2\x80\x99s personal\nresidence, we understand that the Family Dining Room has on occasion\nbeen used by President Carter for purely personal purposes: although\npredominantly used for official functions, it evidently has not been ex\xc2\xad\nclusively so. It also appears that the meeting was not expressly scheduled\nby the Presidential Diarist, a factor that while not providing objective\nevidence that the meeting in advance was regarded as a private function, at\nleast suggests that it was not regarded as formal official function. Finally,\nand most significantly, the FBI report indicates that the costs of the\n43\n\n\x0cmeeting were absorbed by the Democratic National Committee, clear\nevidence that it was not regarded as an official function. Although further\ninformation on past practices would undoubtedly prove helpful in con\xc2\xad\nfirming this tentative view, we believe that the private residence exception\nimplicit in \xc2\xa7 603\xe2\x80\x99s reference to occupation \xe2\x80\x9c in the discharge of official\nduties\xe2\x80\x9d would properly be seen to apply in this case.\nIV. Target of Solicitation\nA third question not expressly raised in your November memorandum\nshould also be noted in light of the facts here presented: whether an of\xc2\xad\nfense is stated under \xc2\xa7 603 even if the target of an alleged solicitation is not\na Federal officer or employee. Compelling arguments can be marshalled\non either side of this issue.\nThe legislative history discussed above indicates that Congress\xe2\x80\x99 purpose\nin enacting \xc2\xa7 603 was to protect Federal officers and employees from onthe-job solicitations. The statute, however, is not on its face limited to\nFederal officials. The wider sweep of the provision, banning all solicita\xc2\xad\ntions on Federal premises, including those involving two private citizens,\ncould be seen as an attempt by Congress to insure the integrity of Govern\xc2\xad\nment property. It might also be explained as an effort to remove even in\xc2\xad\ndirect pressure on Government employees resulting from the presence of\nsolicitors on the premises. Neither rationale figures prominently in the\ncongressional debate, however. It might then be concluded that \xc2\xa7 603\nshould only be applied where its central purpose of protecting Federal\nemployees would be served. Under this interpretation, the solicitation of a\nprivate citizen by a Federal officer or employee would not constitute an of\xc2\xad\nfense chargeable under the statute.\nThe opposing view that solicitations of both Federal personnel and\nprivate citizens fall within the scope of \xc2\xa7 603 finds support in the un\xc2\xad\nqualified statutory language. This sweeping language is in marked contrast\nto \xc2\xa7 603\xe2\x80\x99s companion provisions, 18 U.S.C. \xc2\xa7\xc2\xa7 602, 606, and 607, which\nexpressly require that the person solicited be a Federal employee. It is\ntherefore reasonable to assume that the choice not similarly to limit \xc2\xa7 603\nwas a deliberate one. Moreover, it is noteworthy that, as previously\ndiscussed,38 \xc2\xa7 603 was amended in 1948 to prohibit solicitation \xe2\x80\x9c for any\npolitical purpose from any such person [i.e., \xe2\x80\x9c any person mentioned in\nsection 602\xe2\x80\x9d of title 18],\xe2\x80\x9d but was changed once again in 1951 to delete the\nadded language. The justification for the initial change was to clarify that\npolitical activities involving State employees were not to be encompassed\nby this provision simply because Federal agencies were located in State\nbuildings. The later change returned the section to its original form in\nwhat appeared to be a decision that its scope not be so limited. Congress\xe2\x80\x99\ndetermination that repeal of the 1948 amendment was necessary suggests\n\n\xe2\x80\x99\xe2\x80\xa2 See note 7, supra.\n\n44\n\n\x0cthat the 1948 change had either erroneously gone too far in its attempt to\nclarify existing law by narrowing the class of potential solicitation targets,\nor that Congress intended to broaden the application of \xc2\xa7 603 to include\nmore than those persons mentioned in \xc2\xa7 602. In either event, this recent\nhistory of congressional amendment can be said to confirm the view that\nsolicitations of private citizens fall within the scope of \xc2\xa7 603.\nIssue was joined with regard to these competing interpretations of \xc2\xa7 603\nin 1974 when the view that solicitations of private persons were not in\xc2\xad\ncluded within the scope of this provision was advocated by the Watergate\nSpecial Prosecutor\xe2\x80\x99s office. The contrary view\xe2\x80\x94that \xc2\xa7 603 was applicable\nregardless of the status of the person solicited\xe2\x80\x94was voiced by the\nCriminal Division. In early 1975 the Office of Legal Counsel adopted the\nview of the Criminal Division, and the Office of Legislative Affairs has\nrecently reaffirmed that position in letters to Senators Cannon and Hat\xc2\xad\nfield, dated October 21, 1977 and February 24, 1978, respectively, which\nsummarized the Department\xe2\x80\x99s position with regard to the application of\n\xc2\xa7 603 and related statutes. Although this question of statutory interpreta\xc2\xad\ntion is a close one, we need not reexamine it here in light of our determina\xc2\xad\ntion in Part III above that, on the facts presented, the Family Dining\nRoom was being used for private purposes rather than in the discharge of\nofficial duties within the terms of \xc2\xa7 603.\nIn applying \xc2\xa7 603 of title 18 to activities in the White House involving\nthe President, two key questions are posed: (1) whether a room in the\nWhite House reserved for the President is a room \xe2\x80\x9c occupied * * * by\nany person mentioned in section 602 [of title 18];\xe2\x80\x9d and (2) whether a room\nsuch as the Family Dining Room is one \xe2\x80\x9c occupied in the discharge o f of\xc2\xad\nficial duties.\xe2\x80\x9d Based on our examination of the pertinent legislative\nhistory, we believe that the President is included within the terms of \xc2\xa7 602\nand that rooms occupied by the President in the discharge of official\nduties are therefore encompassed by the prohibition on solicitation found\nin \xc2\xa7 603. A distinct question is raised, however, as to whether rooms in the\nWhite House residence area that are predominantly used for purposes of\nentertainment, including entertainment for official purposes, are similarly\nincluded within the scope of \xc2\xa7 603. The issue is a difficult one; however,\nwe believe that not only rooms in the private residence portion of the\nWhite House but also rooms used for personal entertaining where there is\na history of such use and where, as in this case, the cost of such use is not\ncharged against an account appropriating funds for official functions,\nshould not be regarded as an area \xe2\x80\x9c occupied in the discharge of official\nduties\xe2\x80\x9d for purposes of \xc2\xa7 603.\nA third question is also raised under the facts as we understand them:\nwhether solicitation of a private person rather than a Federal officer or\nemployee was intended to fall within the scope of the statute. We have\nsummarized the competing views on this issue, including the Department\xe2\x80\x99s\npast position that solicitations of private persons are offenses within the\nterms of \xc2\xa7 603. We have not, however, had to reexamine this position in\n45\n\n\x0clight of our view that the events alleged did not occur in a room \xe2\x80\x9c occupied\nin the discharge of official duties.\xe2\x80\x9d\nFinally, we should note a critical threshold issue which we have not here\naddressed: whether a \xe2\x80\x9c solicitation\xe2\x80\x9d within the terms of the statute in fact\noccurred. The limited facts contained in the FBI report suggest that an ex\xc2\xad\npress request for contributions may not have been made; the problem of\nwhat may constitute a solicitation is therefore raised. A particularly nar\xc2\xad\nrow construction of this term may be appropriate where First Amendment\ninterests are at stake; however, a further investigation of the facts would\nbe necessary before any definite judgment on this point could be reached.\nJohn Harmon has asked that you be advised that although I am signing\nthis memorandum in his absence, members of our staff and I have dis\xc2\xad\ncussed this matter with him and the views here expressed are his.\nLarry A. H am m ond\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n46\n\n\x0cAPPENDIX\nUNITED STATES COURT OF APPEALS\nFOR THE\nDISTRICT OF COLUMBIA CIRCUIT\nSPECIAL PROSECUTOR DIVISION\nFiled: February 1, 1979\xe2\x80\x9410:33 p.m.\xe2\x80\x94George A.\nFisher, Clerk\nIn Re Report of the Attorney General\nPursuant to 28 U.S.C. \xc2\xa7 592(b),\nNo. 79-2\n\n:\n:\n\nMOTION OF THE ATTORNEY GENERAL FOR\nLEAVE TO DISCLOSE REPORT PURSUANT\nTO 28 U.S.C. 592(d)(2)\nPursuant to 28 U.S.C. \xc2\xa7 592(d)(2), I hereby seek leave from the Division\nof the Court for permission to disclose the \xe2\x80\x9c Report of the Attorney\nGeneral Pursuant to 28 U.S.C. \xc2\xa7 592(b),\xe2\x80\x9d No. 79-2 filed in this Court on\nFebruary 1, 1979. This report concerns a preliminary investigation of an\nallegation involving the President under the special prosecutor provisions\nof the Ethics in Government Act of 1978, 28 U.S.C. \xc2\xa7 591. Moreover, the\ncircumstances of the White House luncheon on August 10, 1978 have\nalready been the subject of a new article, and continued public comment is\nforeseeable. In these circumstances, I believe it is in the public interest for\nthe Court to grant leave to me to make public this memorandum as pro\xc2\xad\nvided in 28 U.S.C. \xc2\xa7 592(d)(2).\nRespectfully submitted,\n\nG r iffin B. Be l l\n\nAttorney General o f the United States\n47\n\n\x0cUNITED STATES COURT OF APPEALS\nFOR THE\nDISTRICT OF COLUMBIA CIRCUIT\nSPECIAL PROSECUTOR DIVISION\n79-2\n\nREPORT OF THE ATTORNEY GENERAL\nPURSUANT TO 28 U.S.C. \xc2\xa7 592(b)\nSUBJECTS: PRESIDENT JIMMY CARTER\nVICE PRESIDENT\nWALTER MONDALE\nDEPUTY ASSISTANT TO\nTHE PRESIDENT FOR\nPOLITICAL LIAISON\nJOEL MCCLEARY\n\nIn accordance with Section 592(b) o f Title 28, United States Code, as\nadded by the Ethics in Governm ent Act o f 1978, Public Law 95-521, I,\nGriffin B. Bell, A ttorney General o f the United States make the following\nreport concerning the receipt by the Departm ent o f Justice o f information\nregarding alleged criminal violations by the President; the Vice President;\nand the Deputy Assistant to the President for Political Liaison, Joel\nMcCleary.\n1.\nAllegation. On November 3, 1978, the Federal Bureau o f Investiga\xc2\xad\ntion received an allegation from an inform ant that on August 10, 1978, the\nPresident and Vice President had attended a luncheon in the White House\nto which were invited approximately 20 prominent business people who\nhad contributed money on past occasions to the Democratic Party. The\npurpose o f the luncheon was allegedly to apprise these former contributors\nthat the Democratic Party had a remaining $1:5 million debt and that their\ncontributions were needed in order to eliminate the debt. According to the\nsource, solicitation or receipt o f funds might have occurred at the\nluncheon in violation o f 18 U .S.C . \xc2\xa7 603.\nThe inform ant said that further inform ation would appear in New York\nmagazine during the m onth o f November. On November 13, 1978, a two\npage article was published in the magazine stating that an unpublicized\nWhite House luncheon had been held on August 10, 1978, and that,\n48\n\n\x0calthough \xe2\x80\x9c [t]here doesn\xe2\x80\x99t appear to have been any . . . solicitation by\nany government official at the luncheon session,\xe2\x80\x9d contributions totaling\n$100,000 and $25,000 respectively were recorded on reports filed with the\nFederal Election Commission as having been received by the Democratic\nNational Committee on the day o f the luncheon from individuals iden\xc2\xad\ntified as having attended. A copy o f the New York magazine article is at\xc2\xad\ntached as an appendix hereto.\n2. Statute Involved. 18 U.S.C. \xc2\xa7 603 prohibits the solicitation or receipt\no f political contributions in any area occupied by any person described in\n18 U.S.C. \xc2\xa7 602 in the conduct o f official duties.1 18 U .S.C . \xc2\xa7 603 was\noriginally enacted in 1883 as part o f the Pendleton Civil Service Act. There\nare only four known criminal prosecutions under Section 603, and only\none in the last seventy years. United States v. Newton, 20 D.C. (9 Mackey)\n226 (1891); United States v. Thayer, 154 F. 508 (N.D. Tex. 1907), rev\xe2\x80\x99d,\n209 U.S. 39 (1908); United States v. Smith, 163 F. 926 (M .D. Ala. 1908);\nUnited States v. Burleson, 127 F. Supp. 400 (E.D. Tenn. 1954).\n3. Investigation. Because the allegation and magazine article indicated\nthe possibility that 18 U.S.C. \xc2\xa7 603 might have been violated, the D epart\xc2\xad\nment o f Justice, pursuant to 28 U .S.C . \xc2\xa7 592(a), conducted a preliminary\ninvestigation o f the matter. Through interviews conducted by the Federal\nBureau o f Investigation, the following information was developed:\na) A luncheon was held in the White House on August 10,\n1978, attended by 11 business people, 2 union officials, several\nDemocratic National Committee officers and White House staff,\nSenator Kennedy, President Carter, and, for a brief time, Mrs.\nC arter.2\n\n1 18 U.S.C. \xc2\xa7 603 reads:\nW hoever, in any room or building occupied in the discharge o f official duties by any\nperson mentioned in section 602 o f this title, or in any navy yard, fort, or arsenal,\nsolicits or receives any contribution o f money or other thing o f value for any political\npurpose, shall be fined not m ore than $5,000 o r imprisoned not m ore than three years,\nor both.\n18 U.S.C. \xc2\xa7 602, mentioned in Section 603, reads:\nW hoever, being a Senator or Representative in, or Delegate or Resident Com mis\xc2\xad\nsioner to, or a candidate for Congress, or individual elected as, Senator, Representative,\nDelegate, or Resident Commissioner, or an officer or employee o f the United States or\nany departm ent or agency thereof, or a person receiving any salary or com pensation for\nservices from money derived from the Treasury o f the United States, directly or indi\xc2\xad\nrectly solicits, receives, or is in any manner concerned in soliciting or receiving any\nassessment, subscription, or contribution for any political purpose whatever, from any\nother such officer, employee, or person, shall be fined not more than $5,000 or im\xc2\xad\nprisoned not more than three years or both.\n2 According to W hite House records, the following individuals attended the luncheon: The\nPresident; John Amos, American Family Life Insurance Com pany, Colum bus, Georgia; S.\nHarrison Dogole, Chief Executive Officer, Globe Security Systems, Inc., Philadelphia,\nPennsylvania; Arm and Ham mer, Chairm an and C hief Executive Officer, Occidental\nPetroleum C orporation, Los Angeles, California; Mrs. Arm and Ham m er; Morris D. Jaffe,\nBuilder and Developer, San A ntonio, Texas; Edward M. Kennedy, Senator (Massachusetts);\n(Continued)\n\n49\n\n\x0cb) The luncheon was held in a small room known as the\nFamily Dining Room on the first floor o f the Executive Mansion,\nbehind the State Dining Room. The Democratic National Com\xc2\xad\nmittee reimbursed the W hite House $414.87 for the cost o f the\nluncheon.\nc) The luncheon was arranged by John White, Chairman o f the\nDemocratic National Committee, and Evan Dobelle, Treasurer of\nthe Democratic National Committee. According to White,\nDobelle, and others, its purpose was to thank the participants for\ntheir contributions in eliminating the debt o f the Democratic Na\xc2\xad\ntional Committee. W hite stated that each o f the individuals\ninvited had either contributed or pledged to contribute prior to\nthe luncheon. According to Charles M anatt, Finance Chairman of\nthe Democratic National Committee, it was hoped that the lunch\xc2\xad\neon would induce the business people in attendance to continue\ntheir support for the Democratic Party.\nd) The President met in the Oval Office with Lew Wasserman,\nRichard O \xe2\x80\x99Neill, and M anatt for a few minutes prior to the\nluncheon and accompanied them to the Family Dining Room.\ne) The President was present for the first hour o f the luncheon\nand made brief remarks thanking those in attendance for their\nsupport o f the Democratic Party. Joel McCleary, Deputy Assist\xc2\xad\nant to the President for Political Liaison, was apparently present\nthroughout the luncheon.3 There is no evidence that the Presi\xc2\xad\ndent or McCleary solicited or received any money during the\nluncheon.\n0\nEleven o f the individuals who attended the luncheon, and\nMichael Cardozo, Senior Associate Counsel to the President,\nhave been interviewed either in person or telephonically by the\n\n(Continued)\nHenry L. Lacayo, Director, National Com m unity Action Projects, UAW , AFL-CIO ,\nD etroit, Michigan; John O . McMillian, Chairm an, Chief Executive Officer, President,\nNorthwest Energy C om pany, Salt Lake City, U tah; Richard J. O \xe2\x80\x99Neill, Santa A na, Califor\xc2\xad\nnia; Jeno F. Palucci, Chairm an, Je n o \xe2\x80\x99s Incorporated, D uluth, Minnesota; W alter Shorenstein. Chairm an o f the Board, Milton-M eyer & Com pany, San Francisco, California; Rose\xc2\xad\nmary Tom ich, owner. Siesta Cattle Com pany, C hino, California; Glenn E. W atts, President,\nCom m unication W orkers o f Am erica, A FL-CIO , W ashington, D .C .; Lew A. W asserman,\nChairm an o f the Board and C hief Executive Officer, Music Corporation o f America, Los\nAngeles, California; Evan S. Dobelle, Treasurer, Democratic National Committee,\nW ashington, D .C .; Mrs. Evan Dobelle, C hief o f Protocol, D epartm ent o f State,\nW ashington, D .C .; Charles T. M anatt, Partner, M anatt, Phelps, Rothenberg, & Tunney,\nLos Angeles, California, and Finance Chairm an, Democratic National Committee; John C.\nW hite, Chairm an, Democratic National Com m ittee, W ashington, D .C .; Mrs. John White;\nJoel McCleary, Deputy Assistant to the President for Political Liaison, The W hite House,\nW ashington, D.C.\n! McCleary is an individual covered under 28 U .S.C . \xc2\xa7 591(b)(3), as an \xe2\x80\x9c individual work\xc2\xad\ning in the Executive Office o f the President and com pensated at a rate not less than the an\xc2\xad\nnual rate o f basic pay provided for level IV o f the Executive Schedule under Section 5315 of\nTitle 5.\xe2\x80\x9d\n\n50\n\n\x0cFederal Bureau o f Investigation.4 Each o f these people stated\nthat no solicitation o f funds occurred at the luncheon. Several\nwitnesses stated that the President confined his remarks to\nthanking the guests for their past support to the Democratic\nParty and their efforts in helping to retire the 1968 Robert Ken\xc2\xad\nnedy and Hubert Humphrey campaign debts. Senator Kennedy\nalso spoke on the same theme with respect to his brother. No one\nstated that the President requested or even discussed future con\xc2\xad\ntributions. Several participants stated that they heard no discus\xc2\xad\nsion whatever o f money or future contributions at any time dur\xc2\xad\ning the luncheon. According to Evan Dobelle, there was one\nshort interchange at the luncheon between White and Dobelle\nabout the size o f the remaining Party debt, after which an\nunidentified person stated that they should get together to see\nhow it could be retired. There is no indication that this inter\xc2\xad\nchange involved the President. Several o f those interviewed\nrelated that after the President left the luncheon, one guest of\xc2\xad\nfered to pledge a contribution but was stopped by another par\xc2\xad\nticipant who told him such matters could not be discussed at the\nluncheon. According to McCleary, some other people \xe2\x80\x9c talked\nabout money\xe2\x80\x9d after this incident but he could not recall who.\ng) Two of the three persons present at the Oval Office meeting\nwith the President were asked about the discussion and stated\nthat no solicitation or receipt o f funds occurred at that meeting.\nThere is no evidence to the contrary. Solicitation or receipt of\nfunds at that meeting was not part o f the allegation.\nh) Records o f the Federal Election Commission indicated that\non August 10, 1978, Richard O \xe2\x80\x99Neill donated $25,000 and Lew\nWasserman donated $100,000 toward the retirement o f the debt\no f the Democratic National Committee. According to Evan\nDobelle, O \xe2\x80\x99Neill\xe2\x80\x99s contribution was received during a meeting at\nDemocratic National Committee headquarters and W asserman\xe2\x80\x99s\ncontribution was received at the Madison Hotel. FEC records\nalso disclose that on August 22, 1978, Walter Shorenstein\ndonated $5,000 and on August 24, 1978, John McMillian\ndonated $25,000 toward retirement o f the debt o f the Democratic\nNational Committee.\ni) According to Michael Berman, Counsel to the Vice Presi\xc2\xad\ndent, the Vice President was on vacation in Canada from August 7\nto August 13, 1978, and was not present at the luncheon.\n4. Analysis and Conclusions. Section 591(a) o f title 28 o f the United\n\n4 Those interviewed were Evan Dobelle, Mrs. Evan Dobelle, John W hite, Joel McCleary,\nCharles M anatt, Lew W asserman, Glenn W atts, Rosemary Tom ich, John McMillian, A r\xc2\xad\nm and Hammer, and Richard O \xe2\x80\x99Neill.\n\n51\n\n\x0cStates Code directs the A ttorney General to conduct an investigation upon\nreceipt o f specific inform ation that any person covered by the Act has\ncommitted a violation o f federal criminal law. Section 592(c)(1) further\ndirects the A ttorney General to apply to this court for the appointm ent of\na special prosecutor if the A ttorney General, \xe2\x80\x9c upon completion of the\npreliminary investigation, finds that the m atter warrants further investiga\xc2\xad\ntion or prosecution.\xe2\x80\x9d\nAs in all other cases, it is the responsibility o f the Attorney General in\ninstances o f allegations o f criminal conduct against persons covered by the\nAct, first, to determ ine the elements o f the offense proscribed by the\ncriminal statute at issue and, second, to determine whether the alleged\nfacts would constitute the elements o f the offense. Finally, it is my respon\xc2\xad\nsibility, as Attorney General, after a preliminary investigation and after an\nanalysis o f the evidence o f the elements o f the offense, to determine\nwhether the case is o f sufficient merit to warrant further investigation or\nwhether \xe2\x80\x9c the m atter is so unsubstantiated that no further investigation or\nprosecution is w arranted.\xe2\x80\x9d 28 U .S.C . \xc2\xa7 592(b)(1).\nIt is my determ ination that there is no evidence in this case o f conduct\nby the President, Vice President, or Mr. McCleary which constitutes a\nviolation o f 18 U .S.C . \xc2\xa7 603. The case is without merit.\nThe operative facts have been established and no inconsistent evidence\nwas produced by the investigation. The evidence does not support any\nreasonable inference that the President, the Vice President, or Mr. Mc\xc2\xad\nCleary was involved in any request for or delivery o f campaign contribu\xc2\xad\ntions at the White House. The Vice President was not in W ashington,\nD.C. on August 10, 1978. There is no evidence that the President or Mr.\nMcCleary, who o f all those attending the luncheon are the only ones\ncovered by the special prosecutor provision, made any statement or\nsolicitation or in any other way personally solicited any campaign con\xc2\xad\ntributions.5 This is not surprising since, as Mr. McCleary stated, \xe2\x80\x9c the\norganizers were not looking for money at the luncheon.\xe2\x80\x9d That the organ\xc2\xad\nizers had no such intent is corroborated by the action o f one participant\nwhen another guest raised the subject o f pledging a contribution; he inter\xc2\xad\nrupted the other guest and cautioned that they were not to discuss contri\xc2\xad\nbutions at the luncheon.\nThe only conduct proscribed in the statute is making a request for\npolitical contributions or receiving delivery o f such contributions in\nfederal offices. Section 603 is a malum prohibitum statute which makes\n\n5 For purposes o f this m em orandum , 1 am assuming, without deciding, either that the\nW hite House as a whole is a \xe2\x80\x9c building occupied in the discharge o f official duties by [a] per\xc2\xad\nson mentioned in section 602,\xe2\x80\x9d or that the Family Dining Room is a \xe2\x80\x9c room * * * occupied\nin the discharge o f official duties by [a] person m entioned in section 602.\xe2\x80\x9d Am ong the several\nsub-issues that might have to be addressed in order to decide those questions is that of\nwhether the President is a \xe2\x80\x9c person m entioned in section 602.\xe2\x80\x9d 1 am specifically not deciding\nthat issue at this time.\n\n52\n\n\x0can activity illegal in certain places although it would be legal if conducted\nelsewhere. The activity is solicitation or receipt o f political contributions.\nThere is no evidence that any money was received in the White House on\nAugust 10, 1978. Likewise, there is no evidence that money was solicited at\nthe luncheon. While money was solicited or received before or after the\nluncheon at places other than the White H ouse,6 there is no evidence that\nany solicitation took place in the White House. Indeed, it appears that the\norganizers o f the luncheon deliberately structured the affair so as to avoid\nany violation o f law. The evidence does support an inference that the\nluncheon was intended, at least in part, to entertain former contributors\nwith the hope or expectation that they would, in the future, continue their\nfinancial support. Such activity, absent a solicitation or receipt on\npremises covered by the statute, is not prohibited by Section 603.7\nThis reading o f the solicitation provision o f Section 603 is fully sup\xc2\xad\nported by the history o f the statute. There is no case law on this point. This\nstatute derives from th e -1883 Pendleton Civil Service Act which was de\xc2\xad\nsigned primarily to eliminate solicitation o f campaign funds from federal\nemployees at their work place. The goal was to protect these employees\nfrom what were essentially political assessments and to protect the integ\xc2\xad\nrity o f federal office space. The activity in question here, a social gathering\no f past and potential contributors who are not federal employees in a\nWhite House dining room , falls outside the concern o f the statute.\nThe Department o f Justice is unaware o f any instance in the ninety-six\nyears since the statute was passed in which a prosecution was undertaken\nfor the type o f activity here at issue. The only reported prosecutions to in\xc2\xad\ndicate the form o f solicitation covered under the statute have involved ex\xc2\xad\nplicit written requests for money. See United States v. Newton, supra;\nUnited States v. Thayer, supra; United States v. Smith, supra.\nMoreover, when presented with factual situations involving isolated,\nnon-egregious incidents o f actual, explicit solicitations or receipts in\nfederal buildings, the Department has consistently found them without\nprosecutive merit under Section 603. Thus, even assuming a much broader\ninterpretation o f the activity proscribed by Section 603, a prosecution o f\nthis matter would be legally unsound, unfair, and without merit.\n\n\xe2\x80\x98 There is no allegation or evidence that the President or Mr. McCleary personally solicited\nor received a contribution before or after the luncheon on August 10, 1978.\n\xe2\x80\x99 It is entirely legal under Section 603 to solicit outside a protected area. T herefore, to\ndetermine whether a Section 603 violation occurred one must look to the behavior actually\noccurring in the protected area to see if that behavior violated Section 603. Any broader in\xc2\xad\nterpretation of Section 603 would m ake it felonious to invite former contributors to State\ndinners or other formal functions at the W hite House or Capitol with the unspoken hope that\nthe former contributors continue their support. The subjective hope or expectation that an\nindividual might contribute money because he or she was invited to a social function at a\nfederal building is clearly outside the coverage o f Section 603 unless this hope or expectation\nis coupled with an actual solicitation or receipt in a protected area. We are not deciding at\nthis time what the meaning o f \xe2\x80\x9c solicitation\xe2\x80\x9d might be in the context o f other statutes which\nare inapplicable here.\n\n53\n\n\x0cTo contem plate the possibility o f a prosecution on the established facts\no f this case, one would have to conclude that merely by attending the\nluncheon or expressing thanks for past contributions, the President or Mr.\nMcCleary should be seen in the eyes o f the law as actually having made a\nsolicitation for future contributions and committing a felony. Such a view\nis untenable.\nIn sum, there is no factual substantiation o f any solicitation or receipt\nby the President, the Vice President, or Mr. McCleary at the White House\non August 10, 1978. There is no evidence o f conduct on their part that\nwould fall within the scope and purpose o f the statute. Moreover, there is\nno indication from the preliminary investigation that further investigation\ncould reasonably be expected to disclose evidence o f a violation which\ncould warrant prosecution under this statute. The case is without merit.\nTherefore, I hereby notify the C ourt pursuant to 18 U.S.C. \xc2\xa7 592(b) that\nI find the m atter is so unsubstantiated that no further investigation or\nprosecution is warranted, and that no special prosecutor should be\nappointed.\nRespectfully submitted,\nG riffin B. Be l l\n\nA ttorney General o f the United States\n\n54\n\n\x0c'