b'June 15, 1979\n\n79-43\n\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL, CIVIL\nDIVISION\nSettlement of Litigation\xe2\x80\x94Authority of the Postal\nService (39 U.S.C. \xc2\xa7\xc2\xa7 409, 2008)\xe2\x80\x94Authority of the\nAttorney General (28 U.S.C. \xc2\xa7\xc2\xa7 516, 519)\n\nThis responds to your memorandum of March 14, 1979, requesting\nour opinion concerning the settlement of litigation in which the U.S.\nPostal Service (Postal Service) is represented by the Department of Justice\npursuant to 39 U.S.C. \xc2\xa7 409(d).1 You ask in particular whether this Office\nstill adheres to the position taken in its memorandum of February 13,\n1973. That memorandum concluded that although the matter was not free\nfrom doubt the better interpretation of the pertinent legislation is that the\nauthority to settle is implicit in the power of the Attorney General to\nconduct litigation affecting the Postal Service; hence, that such litigation\ncannot be settled without the concurrence of the Attorney General.\nFor the reasons set forth below in detail, we are modifying the posi\xc2\xad\ntion taken in our earlier memorandum to the extent that where litigation\ninvolves a matter within the sole prerogative of the Postal Service, the At\xc2\xad\ntorney General cannot settle the litigation over the objection of the Postal\nService, nor can he block a settlement advocated by the Postal Service.\nOtherwise we adhere to our memorandum of February 13, 1973.\nThe issues underlying your inquiry and our 1973 memorandum are,\nfirst, whether 39 U.S.C. \xc2\xa7 2008(c) gives the Postal Service final settlement\n\n1 39 U.S.C. \xc2\xa7 409(d) provides:\n(d) The Departm ent o f Justice shall furnish, under section 411 o f this title, the Postal\nService such legal representation as it may require, but with the prior consent o f the\nA ttorney General the Postal Service may employ attorneys by contract or otherwise to\nconduct litigation brought by or against the Postal Service or its officers or employees\nin matters affecting the Postal Service.\n\n253\n\n\x0cauthority over its litigation,2 and, second, whether the independent status\nof the Postal Service under the Postal Reorganization Act limits the con\xc2\xad\ntrols normally exercised by the Attorney General over agency litigation\npursuant to 28 U.S.C. \xc2\xa7\xc2\xa7 516, 519.3\nOur subsequent memorandum to the Special Assistant to the Solicitor\nGeneral, dated September 28, 1973, took a more cautious position than\nthe earlier memorandum and concluded that \xe2\x80\x9c given the language of 39\nU.S.C. \xc2\xa7 2008(c), it is far from clear that this Department could success\xc2\xad\nfully maintain that in no instance may the Postal Service settle a case\nwithout the concurrence of this Department.\xe2\x80\x9d The memorandum sug\xc2\xad\ngested that this problem might better be resolved on the basis of an agree\xc2\xad\nment between the Department of Justice and the Postal Service.\nSince then the Court of Appeals for the First Circuit handed down its\ndecision in Leonard v. United States Postal Service, 489 F. (2d) 814 (1st\nCir., 1974), holding that in the specific litigation before it the Postal Serv\xc2\xad\nice had the authority to settle a law suit over the objection of the Depart\xc2\xad\nment of Justice. The court stated that \xe2\x80\x9c the legislative history [of 39\nU.S.C. \xc2\xa7 2008(c)] pointed out to us does not indicate that the section was\nmeant to have a reading not in accord with its literal language.\xe2\x80\x9d At 817.\nThe court, however, did not deem it necessary to provide a definitive\ndelineation of the respective litigating powers of the Postal Service and the\nDepartment of Justice. It felt it sufficient to rule that in the case at bar the\nDepartment of Justice could not block a settlement concluded by the\nPostal Service affecting matters which, under the Postal Reorganization\nAct, were committed to the control of the Postal Service. The opinion also\nsuggested that while the authority of the Department of Justice over litiga\xc2\xad\ntion might empower it to refuse to entertain and possibly to settle litigation\neven over the objection of the Postal Service, the Department lacked the\nauthority to block a settlement to which it agreed. Fn. 7, p. 817.\nAlthough we do not agree with all the reasoning of the Court of Ap\xc2\xad\npeals, it may have reached the correct result in the case before it, assuming\nthat the subject matter of the litigation truly was peculiarly within the\n\n1 39 U .S.C . \xc2\xa7 2008(c) provides:\n(c) Subject only to the provisions o f this chapter, the Postal Service is authorized to\nm ake such expenditures and to enter into such contracts, agreements, and ar\xc2\xad\nrangem ents, upon such terms and conditions and in such m anner as it deems\nnecessary, including the final settlement o f all claims and litigation by or against the\nPostal Service. [Emphasis added.]\n1 28 U .S.C . \xc2\xa7\xc2\xa7 516 and 519 provide:\nSection 516. Conduct o f litigation reserved to Department o f Justice. Except as other\xc2\xad\nwise authorized by law, the conduct o f litigation in which the United States, an agency,\no r officer thereof is a party, or is interested, and securing evidence therefor, is reserved\nto officers o f the Departm ent o f Justice, under the direction o f the A ttorney General.\nSection 519. Supervision o f litigation. Except as otherwise authorized by law, the A t\xc2\xad\ntorney General shall supervise all litigation to which the United States, an agency, or\nofficer thereof is a party, and shall direct all United States attorneys, assistant United\nStates attorneys, and special attorneys appointed under section 543 o f this title in the\ndischarge o f their respective duties.\n\n254\n\n\x0cautonomous sphere o f the Postal Service.4 In connection with its inter\xc2\xad\npretation of 39 U.S.C. \xc2\xa7 2008(c), we believe that it would have been possi\xc2\xad\nble for the Department to make a stronger case based on the legislative\nhistory of the subsection by showing that it was intended to cover only the\nrelationship between the Postal Service and the Comptroller General.5\nNevertheless, we would recommend relitigation of. that issue if at all, only\nin an exceptionally strong case, for example, where the Postal Service\nposition is clearly erroneous.\nThe second branch of the Court of Appeals opinion deals with the\nextent to which the control of the Attorney General over Government\nlitigation conducted by the Department of Justice is modified by the\n\xe2\x80\x9c somewhat uneasy and unresolved tension between the dependent and\nindependent aspects of the new [Postal] Service.\xe2\x80\x9d 6 Leonard, at p. 815.\nWhile 39 U.S.C. \xc2\xa7 201 establishes the Postal Service as an independent\nestablishment in the \xe2\x80\x9c executive branch,\xe2\x80\x9d \xc2\xa7 202(a) provides for a bipar\xc2\xad\ntisan Board of Governors with fixed terms who can be removed by the\nPresident only for cause. In addition, the Postmaster General and the\nDeputy Postmaster General are appointed and removable not by the Presi\xc2\xad\ndent but by the Board of Governors. \xc2\xa7 202(c), (d).\nAn agency headed by a Board of Governors and by executive officers\nwho are not freely removable by the President is not substantively within\nthe executive branch of the Government as that term is commonly under\xc2\xad\nstood. Purely executive officers must be freely removable by the Presi\xc2\xad\ndent, Myers v. United States, 272 U.S. 52 (1926), and their discretionary\nacts are subject to Presidential control. Marbury v. Madison, 5 U.S. (1\nCranch) 137, 166 (1803); Congress Construction Co. v. United States, 161\n\n4 See fn. 11, infra.\n\xe2\x80\x99 Section 2008(c) is located in a chapter entitled \xe2\x80\x9c Finance.\xe2\x80\x9d Section 2008 itself is entitled\n\xe2\x80\x9c Audit and expenditures\xe2\x80\x9d and deals exclusively with the relationship between the C om p\xc2\xad\ntroller General and the Postal Service. The pertinent Com mittee report explains \xc2\xa7 2008(c) as\nfollows:\nSubsection (c);\xe2\x80\x94Authorizes the Postal Service to m ake all expenditures and enter into\nall contracts and agreements it deems necessary, including final settlement o f all claims\nagainst the Postal Service, expenditures cannot be disallowed by the Comptroller\nGeneral. [(Emphasis added.) H. Rept. 1104, 91st C ong., 2d sess. 40 (1970).]\nMoreover, \xc2\xa7 2008(c) is virtually identical with \xc2\xa7 9(c) o f the Tennessee Valley A uthority A ct,\n16 U .S.C . \xc2\xa7 831h (b). H .R . 4, 91st C ong., 1st sess., a predecessor to the bill that ultimately\nbecame the Postal Reorganization Act, used the TVA as a model for the Postal Service. H.\nRept. 988, 91st Cong., 2d sess. 19 (1970). The legislative history o f a 1941 am endm ent to the\nTVA legislation from which the pertinent parts here o f 16 U .S.C . \xc2\xa7 83lh(b) are derived shows\nthat they were inserted in the legislation in response to complaints by the TVA that in\xc2\xad\nterference by the Com ptroller General had prevented the TVA from entering into com \xc2\xad\npromises that could have avoided litigation and from settling law suits on favorable terms.\nSee, Amending the Tennessee Valley Authority Act, Hearing before the Com m ittee on\nMilitary Affairs, House o f Representatives, 77th C ong., 1st sess., on H.R. 4961, pp. 52-64,\n115-116, 121-122, 132, and 87 C o n g r e s s i o n a l R e c o r d 6199 (1941) (Representative May).\n\xe2\x80\x98 This uneasy and unresolved tension is illustrated by the difference o f approach taken by\nLeonard and Butz Engineering Corp. v. United States, 204 Ct. C l. 561 (1974). The form er\ncase stressed the independence o f the Postal Service, while the latter emphasized its\ndependence.\n\n255\n\n\x0cCt. C l. 50, 55-56 (1963), cert, denied, 375 U.S. 817 (1963); 7 Op. A tt\xe2\x80\x99y.\nGen. 453, 469-470 (1855). Congress clearly did not intend Postal Service\nofficials to have that status. The pertinent committee report (H. Rept.\n91-1104) states that the Postal Service was taken completely out of the\nPresident\xe2\x80\x99s Cabinet and out of politics (at pp. 6, 12-13) and that the Board\nwas to constitute a buffer between the management of the Postal Service\nand the possible influence of partisan politics. Ibid. In sum, the legislation\nwas designed to remove \xe2\x80\x9c the day-to-day management of the Postal Serv\xc2\xad\nice from both Presidential and Congressional areas of concern while still\nleaving the Postal Service subject to [their] broad policy guidance.\xe2\x80\x9d At\np. 13. Another important legislative consideration was the desire that the\nPostal Service function in a business-like manner, rather than as a govern\xc2\xad\nment organization not subject in all respects to that standard. At\npp. 11-12.\nSection 410(a) of title 39 accordingly exempts the Postal Service from\nmany of the laws dealing with Federal contracts, property, works, of\xc2\xad\nficers, employees, budgets, or funds, leaving, however, many important\nlaws in those fields applicable to the Postal Service. 39 U.S.C. \xc2\xa7 410(b).7\nThe peculiar status of the Postal Service exempting it to a large extent\nfrom Presidential control and from a substantial range of laws normally\napplicable to executive establishments necessarily has an impact on the\ncontrol exercised by the Attorney General over postal litigation conducted\nby the Department of Justice. The Attorney General\xe2\x80\x99s power to control\nlitigation under 28 U.S.C. \xc2\xa7\xc2\xa7 516, 519 flows from several sources. Some\nresult from his status as an officer of the court. Hence, it is his respon\xc2\xad\nsibility not to litigate cases that would unnecessarily burden the Federal\ncourts," and that responsibility applies to litigation by the Department\nconducted on behalf of independent regulatory agencies. See, Federal\nTrade Commission v. Claire Furnace Co., 274 U.S. 160, 174 (1927);\nFederal Trade Commission v. Guignon, 390 F. (2d) 323, 330 (8th Cir.\n1968).9 It is also within his power to refuse to institute litigation and to ter\xc2\xad\nminate law suits, once he determines that to bring or to continue them\nwould constitute unjust harassment against private parties. 2 Op. Atty.\nGen. 482, 486 (1831). Finally, the Attorney General must be able to pre\xc2\xad\nvent action by an executive agency that would be illegal, such as a settle\xc2\xad\nment prohibited by law. 22 Op. A tt\xe2\x80\x99y. Gen. 491 (1899).\nAnother source of the Attorney General\xe2\x80\x99s authority and responsibility\nto control litigation is a derivative of the President\xe2\x80\x99s power to control the\ndiscretion of the agencies referred to above. That power is vested in the\nAttorney General as the President\xe2\x80\x99s alter ego, so that uniform policies\n\n\xe2\x80\x99 For the laws o f a governmental nature applicable to the Postal Service, see, Butz\nEngineering Corp. v. United States, 204 Ct. C l. 561, 573-574, supra.\n\' See, Leonard, fn. 7, p. 817.\n\xe2\x80\x99 In this context see, however, the am endm ent to \xc2\xa7 16 o f the Federal Trade Commission\nA ct, 15 U .S.C . \xc2\xa7 56, by \xc2\xa7 204(a) o f the Act o f January 4, 1975, 88 Stat. 2199.\n\n256\n\n\x0cin the execution of the laws and the conduct of litigation will prevail. This\nsource of the Attorney General\xe2\x80\x99s power is necessarily weakened with\nrespect to an entity, such as the Postal Service.\nIn our view, the answer to the questions posed depends on the basis on\nwhich the Attorney General seeks to settle a case, and on the subject mat\xc2\xad\nter of the litigation. If the Attorney General acts in his capacity as an of\xc2\xad\nficer of the court, or for Government-wide policy reasons based on laws\nand regulations that cover the Postal Service, we do not believe that con\xc2\xad\nsent of the Postal Service is required. Moreover, since the power to dismiss\nincludes the power to prescribe the terms on which the suit is to be dis\xc2\xad\nmissed, settlement negotiations are within his jurisdiction, 39 U.S.C.\n\xc2\xa7 2008(c) notwithstanding. See, Castell v. United States, 98 F. (2d) 88, 91\n(2d Cir., 1938), cert, denied, 305 U.S. 652 (1938); Leonard, supra, fn. 7, at\n817-818; 22 Op. A tt\xe2\x80\x99y. Gen. 491, 494 (1899).\'\xc2\xb0\nOn the other hand, where the subject matter of the litigation is of\n\xe2\x80\x9c parochial\xe2\x80\x9d interest to the Postal Service and involves its day-to-day\nmanagement (H. Rept. 91-1004, p. 13, supra) without any impact on the\ngeneral Federal law, or \xe2\x80\x9c policy decisions within the sole prerogative of the\nPostal Service\xe2\x80\x9d (.Leonard, at 817), the spirit and purpose of the Postal\nReorganization Act of 1970 indicate that a decision to settle and the con\xc2\xad\nduct of settlement negotiations are both within the jurisdiction of the\nPostal Service.\nConversely, we do not believe that Leonard stands for the proposition\nthat the Attorney General can never block a settlement the Postal Service\nseeks to conclude. As indicated, above, if the settlement is illegal or if it\nwould create a precedent adversely affecting the Federal establishment as a\nwhole, the Attorney General must be able to prevent it. Leonard does not\nhold to the contrary. That case was based rightly or wrongly" on the\npremise that the litigation involved only matters that were of concern to\nthe Postal Service, and the court deliberately refrained from passing on\nproblems relating to settlements not within those narrow confines.\nIn our view, our analysis applies equally to the question you pose as to\ncases pending in the Court of Claims.\n\n10 As we read Leonard, \xc2\xa7 2008(c) supersedes the statutory settlement authority o f the A t\xc2\xad\ntorney General only in areas within the sole prerogative o f the Postal Service.\n" The issue in Leonard was the policy o f hiring employees with arrest records not leading\nto conviction unless the position was designated as sensitive or the charges were currently\npending. A strong argument could be m ade that this issue was not o f a nature peculiar to the\nPostal Service but that it involved Government-wide employment policies closely related to\nprovisions o f title S, United States Code, which are applicable to the Postal Service pursuant\nto 39 U .S.C. \xc2\xa7 410(b)(1).\n\n257\n\n\x0cWe realize that the practical application of our reasoning may be diffi\xc2\xad\ncult. That, however, is the inescapable consequence of the hybrid status of\nthe Postal Service under the Postal Reorganization Act, i.e., the \xe2\x80\x9c uneasy\nand unresolved tensions between the dependent and independent aspects\nof the new [Postal) Service.\xe2\x80\x9d Leonard, at 815.\nLe o n U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n258\n\n\x0c'


b"Applicability of Emoluments Clause to \xe2\x80\x9c Representative\xe2\x80\x9d\nMembers of Advisory Committees\nT he E m olum ents C lause o f the Constitution does not apply to \xe2\x80\x9c representative\xe2\x80\x9d m em bers o f advisory\nco m m ittees, that is, m em bers who are chosen to present the view s o f private organizations and\ninterests.\n\nSeptember 2, 1997\nL e t t e r O p in io n\n\nfor th e\n\nG\n\neneral\n\nC ou n sel\n\nU n it e d S t a t e s T r a d e R e p r e s e n t a t i v e\n\nThis is in response to your inquiry about the application of the Emoluments\nClause, U.S. Const, art. I, \xc2\xa79, cl. 8, to members of advisory committees. The\nClause forbids anyone \xe2\x80\x9c holding any Office of Profit or Trust\xe2\x80\x9d under the United\nStates from accepting, without the consent of Congress, \xe2\x80\x9c any present, Emolument,\nOffice, or Title, of any kind whatever, from any King, Prince, or foreign State.\xe2\x80\x9d\nIn 1991, we expressed the categorical opinion that members of federal advisory\ncommittees hold offices of profit or trust within the meaning of the Clause.\nA pplicability o f 18 U.S.C. \xc2\xa72J9 to Members o f Federal Advisory Committees ,\n15 Op. O.L.C. 65, 68 (1991). However, we later receded from that sweeping view\nand concluded that \xe2\x80\x9c not every member of an advisory committee necessarily\noccupies an \xe2\x80\x98Office of Profit or Trust\xe2\x80\x99 under the Clause.\xe2\x80\x9d Letter for Conrad K.\nHarper, Legal Adviser, Department of State, from Walter Dellinger, Assistant\nAttorney General, Office of Legal Counsel (Mar. 1, 1994). Later, we specifically\ndetermined that members of the State Department\xe2\x80\x99s Advisory Committee on Inter\xc2\xad\nnational Economic Policy did not hold such offices because those members \xe2\x80\x9c meet\nonly occasionally, serve without compensation, take no oath, and do not have\naccess to classified information,\xe2\x80\x9d and because \xe2\x80\x9c the Committee is purely advisory,\nis not a creature of statute, and discharges no substantive statutory responsibil\xc2\xad\nities.\xe2\x80\x9d The A dvisory Committee on International Economic Policy , 20 Op. O.L.C.\n123, 123 (1996).\nIn light of these refinements to our position, we now believe that \xe2\x80\x9c representa\xc2\xad\ntive\xe2\x80\x9d members of advisory committees are not covered by the Clause. Such rep\xc2\xad\nresentatives are chosen to present the views o f private organizations and interests.\nUnder well-established precedents, a representative is not an \xe2\x80\x9c officer or\nem ployee\xe2\x80\x9d of the United States under the conflict of interest laws: \xe2\x80\x9c \xe2\x80\x98[0]ne who\nis requested to appear before a Government department or agency to present the\nviews of a non-governmental organization or group which he represents, or for\nwhich he is in a position to speak, does not act as a servant o f the Government\nand is not its officer or employee.\xe2\x80\x99 \xe2\x80\x9d Memorandum to Heads of Departments and\nAgencies of the Executive Branch, from J. Jackson Walter, Director, Office of\nGovernment Ethics, reprinted in Informal Advisory Letters and Memoranda and\n176\n\n\x0cApplicability o f Emoluments Clause to ' 'Representative \xe2\x80\x99' Members o f Advisory Committees\n\nFormal Opinions 1979-1988, at 330 (1982) (quoting Memorandum of the Presi\xc2\xad\ndent, Preventing Conflicts o f Interest on the Part o f Special Government\nEmployees (May 2, 1963)). It would be exceedingly incongruous if, as we have\nconcluded, special government employees on some advisory committees do not\noccupy offices of profit or trust under the Clause, but representatives who are\nnot even employees are covered. Because representatives owe their loyalty to out\xc2\xad\nside interests and are not \xe2\x80\x9c servantfs] of the Government,\xe2\x80\x9d they do not, in our\nview, hold offices of profit or trust under the United States.\nRICHARD L. SHIFFRIN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n111\n\n\x0c"


b"Discrimination Among Classes of Legal Aliens in\nthe Provision of Welfare Benefits\nProposed legislation authorizing the states to discrim inate am ong classes of legal aliens in the\nprovision o f w elfare benefits is within Congress' power, and state statutes passed pursuant to it\nwould likely be held constitutional.\nAs a general matter. C ongress could legislate to prevent states from providing welfare benefits to\ncertain classes of aliens in order to effectuate a national policy on im m igration. W hile there\nappears to be no basis for Congress\xe2\x80\x99 preem pting provisions in state constitutions which m andated\nthe paym ent o f welfare to all aliens, regardless o f their legal status, neither does any state\nconstitution appear to contain such a m andatory provision.\n\nAugust 10, 1982\nMEMORANDUM OPINION FOR THE\nASSOCIATE DEPUTY ATTORNEY GENERAL\nThis responds to your request for advice whether certain language proposed\nfor inclusion in S. 2222, 97th Cong., 2d Sess. (1982), a bill to amend the\nimmigration laws, would be both constitutional and sufficient to overcome\nprovisions in the constitutions of five states\xe2\x80\x94 California, Florida, Illinois, New\nYork, and Texas\xe2\x80\x94requiring that welfare benefits be given to citizens and legal\naliens alike. The proposed language would authorize states to deny federal\nbenefits to aliens legalized under the amnesty provisions of the bill. For reasons\nstated hereafter, we believe that Congress may, by statute, authorize the states to\ndecide that they will not provide defined types of welfare benefits to designated\nclasses of aliens legally in this country. We have, however, been unable to\ndiscover any state constitutional provisions that would affirmatively prevent state\nlegislatures from making a decision to withdraw welfare benefits from that same\nclass of aliens. The language will permit the states to discriminate in their statutes\nagainst this particular class of aliens.\nTwo states\xe2\x80\x94 California and New York\xe2\x80\x94have statutes that explicitly provide\nthat assistance is available to any \xe2\x80\x9cresident\xe2\x80\x9d who is either a citizen or an alien who\nhas not been determined to be an illegal alien. Cal. Welfare and Institutions Code\n\xc2\xa7 11104 (West 1980); N.Y. Social Services Law \xc2\xa7 209(l)(a)(iv) (McKinney\n1976). Illinois makes aid available to any \xe2\x80\x9cresident,\xe2\x80\x9d 23 111. Ann. Stat. \xc2\xa7 6-1.1\n(Smith-Hurd Supp. 1982), while Florida provides assistance to those who are\n\xe2\x80\x9cneedy\xe2\x80\x9d and are residing in Florida with an intention to remain, Fla. Stat.\n\xc2\xa7 409.185(l)(c). Given the Supreme Court\xe2\x80\x99s ruling in Graham v. Richardson,\n507\n\n\x0c403 U.S. 365 (1971), it would not be surprising if most states, not just these five,\nprovided welfare benefits to all residents, whether they were citizens or lawful\naliens.\nWe believe that proposed \xc2\xa7 301 (a)(2)(D), which would authorize states to deny\nbenefits to the newly created class of aliens, is permissible. Although Graham,\nsupra, struck down state statutes that discriminated against aliens in the distribu\xc2\xad\ntion of welfare benefits, that ruling was based on the statutes\xe2\x80\x99 encroachment on an\narea of federal power\xe2\x80\x94 i.e., control of immigration\xe2\x80\x94 in a manner that was\n\xe2\x80\x9cinconsistent with federal policy.\xe2\x80\x9d 403 U.S. at 380. The Supreme Court has\nstated, however, that if a state law regulating aliens is consistent with federal\npolicy, or was clearly intended to be allowed by federal policy, it will not\ngenerally be struck down as violative of the federal Constitution. See D e Canas v.\nBica, 424 U.S. 351 (1976) (California statute forbidding employment of illegal\naliens). Cf. Toll v. M oreno, 458 U .S. 1 (1982) (Congress intended certain aliens\nto have affirmative benefits that state policy undercut); Plyler v. Doe, 457 U.S.\n202 (1982) (state could not act where there was no congressional intent to deprive\nchildren of illegal aliens of a public school education). Proposed \xc2\xa7 301(a)(2)(D)\nmakes explicit a national policy to deprive this new class of certain benefits and\nauthorizes the states, if they wish, to follow suit with regard to similar benefits.\nWe believe that the Supreme Court would uphold a state statute, passed after\nenactment of \xc2\xa7 301(a)(2)(D), that deprived this particular class of aliens of\nbenefits under the programs identified pursuant to \xc2\xa7 301(a)(2)(C).\nWe have not found any provision explicitly mandating payment of general\nassistance to persons, regardless of their legal status, in the constitutions of the\nstates mentioned above. New York\xe2\x80\x99s constitution does state that \xe2\x80\x9cThe aid, care\nand support of the needy are public concerns,\xe2\x80\x9d but it leaves to the state legislature\nthe definition of needy and the method of meeting this affirmative duty. N.Y.\nConst, art. 17, \xc2\xa7 1. The only other reference to the issue in the constitutions\nnoted above is in the Texas constitution which authorizes, but does not require,\nthe state legislature to provide for \xe2\x80\x9cneedy\xe2\x80\x9d aged, disabled, or blind persons or\ndependent children. Tex. Const, art. 3, \xc2\xa7 51-a. Thus, the assumption upon\nwhich part of your inquiry is based appears to be in error.\nWe are not aware of the basis upon which Congress might premise federal\nlegislation designed to preempt contrary state constitutions and permit state\nlegislatures to discriminate against aliens. The fact that Congress could constitu\xc2\xad\ntionally legislate directly to prevent all states from providing such benefits does\nnot establish, in our view, that Congress could override state constitutional\nprovisions that limit the power of state legislatures to make such a decision\nthemselves. In the absence of an understanding of the particular basis upon which\nCongress would enact such a law, we cannot opine upon the constitutionality of\nany such provision.\nL a r r y L . SiMMi>\n\nDeputy Assistant Attorney General\nOffice cf Legal Counsel\n508\n\n\x0c"


b'Immunity of the Director of the Office of Political\nStrategy and Outreach from Congressional Subpoena\nThe Assistant to the President and Director of the Office of Political Strategy and Outreach (\xe2\x80\x9cOPSO\xe2\x80\x9d) is immune from the House Committee on Oversight and Government\nReform\xe2\x80\x99s subpoena to compel him to testify about matters concerning his service to\nthe President in the OPSO.\nJuly 15, 2014\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked whether Assistant to the President and Director of the\nOffice of Political Strategy and Outreach (\xe2\x80\x9cOPSO\xe2\x80\x9d) David Simas is\nlegally required to appear to testify at a congressional hearing scheduled\nfor July 16, 2014, in response to a subpoena issued to Mr. Simas by the\nHouse Committee on Oversight and Government Reform on July 10,\n2014. We understand that the Committee seeks testimony about \xe2\x80\x9cwhether\nthe White House is taking adequate steps to ensure that political activity\nby Administration officials complies with relevant statutes, including the\nHatch Act,\xe2\x80\x9d and about \xe2\x80\x9cthe role and function of the White House Office\nof Political Strategy and Outreach.\xe2\x80\x9d Letter for David Simas from Darrell\nIssa, Chairman, Committee on Oversight and Government Reform, House\nof Representatives (July 3, 2014) (\xe2\x80\x9cInvitation Letter\xe2\x80\x9d). For the reasons set\nforth below, we believe that Mr. Simas is immune from compulsion to\ntestify before the Committee on these matters, and therefore is not required to appear to testify in response to this subpoena.\nI.\nA.\nThe Executive Branch\xe2\x80\x99s longstanding position, reaffirmed by numerous administrations of both political parties, is that the President\xe2\x80\x99s immediate advisers are absolutely immune from congressional testimonial\nprocess. See, e.g., Memorandum for John D. Ehrlichman, Assistant to the\nPresident for Domestic Affairs, from William H. Rehnquist, Assistant\nAttorney General, Office of Legal Counsel, Re: Power of Congressional\nCommittee to Compel Appearance or Testimony of \xe2\x80\x9cWhite House Staff\xe2\x80\x9d\n5\n\n\x0c38 Op. O.L.C. 5 (2014)\n\nat 7 (Feb. 5, 1971) (\xe2\x80\x9cRehnquist Memorandum\xe2\x80\x9d). 1 This immunity is\nrooted in the constitutional separation of powers, and in the immunity of\nthe President himself from congressional compulsion to testify. As this\nOffice has previously observed, \xe2\x80\x9c[t]he President is the head of one of the\nindependent Branches of the federal government. If a congressional\ncommittee could force the President\xe2\x80\x99s appearance\xe2\x80\x9d to testify before it,\n\xe2\x80\x9cfundamental separation of powers principles\xe2\x80\x94including the President\xe2\x80\x99s\nindependence and autonomy from Congress\xe2\x80\x94would be threatened.\xe2\x80\x9d\nImmunity of the Former Counsel to the President from Compelled Congressional Testimony, 31 Op. O.L.C. 191, 192 (2007) (\xe2\x80\x9cBradbury Memorandum\xe2\x80\x9d). In the words of one President, \xe2\x80\x9c[t]he doctrine [of separation of\npowers] would be shattered, and the President, contrary to our fundamental theory of constitutional government, would become a mere arm of the\nLegislative Branch of the Government[,] if he would feel during his term\nof office that his every act might be subject to official inquiry and possible distortion for political purpose.\xe2\x80\x9d Texts of Truman Letter and Velde\nReply, N.Y. Times, Nov. 13, 1953, at 14 (reprinting November 11, 1953\nletter by President Truman). Thus, just as the President \xe2\x80\x9cmay not compel\ncongressmen to appear before him,\xe2\x80\x9d \xe2\x80\x9c[a]s a matter of separation of powers, Congress may not compel him to appear before it.\xe2\x80\x9d Assertion of\n1 See also Letter for Fred F. Fielding, Counsel to the President, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel (Aug. 1,\n2007); Immunity of the Former Counsel to the President from Compelled Congressional\nTestimony, 31 Op. O.L.C. 191 (2007); Assertion of Executive Privilege with Respect to\nClemency Decision, 23 Op. O.L.C. 1 (1999); Immunity of the Counsel to the President\nfrom Compelled Congressional Testimony, 20 Op. O.L.C. 308 (1996); Memorandum for\nEdward C. Schmults, Deputy Attorney General, from Theodore B. Olson, Assistant\nAttorney General, Office of Legal Counsel (July 29, 1982); Letter for Rudolph W.\nGiuliani, Associate Attorney General, from Theodore B. Olson, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Demand for Deposition of Counsel to the President\nFred F. Fielding (July 23, 1982); Memorandum for Fred F. Fielding, Counsel to the\nPresident, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel,\nRe: Congressional Testimony by Presidential Assistants (Apr. 14, 1981); Memorandum\nfor Margaret McKenna, Deputy Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Dual-Purpose Presidential Advisers\n(Aug. 11, 1977); Memorandum for John W. Dean III, Counsel to the President, from\nRalph E. Erickson, Assistant Attorney General, Office of Legal Counsel, Re: Appearance\nof Presidential Assistant Peter M. Flanigan Before a Congressional Committee (Mar. 15,\n1972).\n\n6\n\n\x0cImmunity of the Director of the Office of Political Strategy and Outreach\n\nExecutive Privilege with Respect to Clemency Decision, 23 Op. O.L.C.\n1, 4 (1999) (\xe2\x80\x9cAssertion of Executive Privilege\xe2\x80\x9d) (quoting Memorandum\nfor Edward C. Schmults, Deputy Attorney General, from Theodore B.\nOlson, Assistant Attorney General, Office of Legal Counsel at 2 (July\n29, 1982)).\nFor the President\xe2\x80\x99s absolute immunity to be fully meaningful, and for\nthese separation of powers principles to be adequately protected, the\nPresident\xe2\x80\x99s immediate advisers must likewise have absolute immunity\nfrom congressional compulsion to testify about matters that occur during\nthe course of discharging their official duties. \xe2\x80\x9cGiven the numerous\ndemands of his office, the President must rely upon senior advisers\xe2\x80\x9d to\ndo his job. Bradbury Memorandum, 31 Op. O.L.C. at 192. The President\xe2\x80\x99s immediate advisers\xe2\x80\x94those trusted members of the President\xe2\x80\x99s\ninner circle \xe2\x80\x9cwho customarily meet with the President on a regular or\nfrequent basis,\xe2\x80\x9d Rehnquist Memorandum at 7, and upon whom the President relies directly for candid and sound advice\xe2\x80\x94are in many ways an\nextension of the President himself. They \xe2\x80\x9cfunction[] as the President\xe2\x80\x99s\nalter ego, assisting him on a daily basis in the formulation of executive\npolicy and resolution of matters affecting the military, foreign affairs,\nand national security and other aspects of his discharge of his constitutional responsibilities,\xe2\x80\x9d including supervising the Executive Branch and\ndeveloping policy. Assertion of Executive Privilege, 23 Op. O.L.C. at 5;\nsee also Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982) (the Constitution\n\xe2\x80\x9cestablishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of\nutmost discretion and sensitivity,\xe2\x80\x9d including \xe2\x80\x9cthe enforcement of federal\nlaw\xe2\x80\x9d and the \xe2\x80\x9cmanagement of the Executive Branch\xe2\x80\x9d); In re Sealed Case,\n121 F.3d 729, 750 (D.C. Cir. 1997) (\xe2\x80\x9cThe President himself must make\ndecisions relying substantially, if not entirely, on the information and\nanalysis supplied by advisers.\xe2\x80\x9d). \xe2\x80\x9cGiven the close working relationship\nthat the President must have with his immediate advisors as he discharges his constitutionally assigned duties,\xe2\x80\x9d \xe2\x80\x9c[s]ubjecting [those advisers] to\nthe congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned executive functions.\xe2\x80\x9d Assertion of\nExecutive Privilege, 23 Op. O.L.C. at 5.\n7\n\n\x0c38 Op. O.L.C. 5 (2014)\n\nIn particular, a congressional power to compel the testimony of the\nPresident\xe2\x80\x99s immediate advisers would interfere with the President\xe2\x80\x99s discharge of his constitutional functions and damage the separation of powers in at least two important respects. First, such a power would threaten\nthe President\xe2\x80\x99s \xe2\x80\x9cindependence and autonomy from Congress.\xe2\x80\x9d Bradbury\nMemorandum, 31 Op. O.L.C. at 192; cf. Cheney v. U.S. Dist. Court for\nthe Dist. of Columbia, 542 U.S. 367, 370, 385 (2004) (citing the President\xe2\x80\x99s need for autonomy and confidentiality in holding that courts must\nconsider constraints imposed by the separation of powers in fashioning\nthe timing and scope of discovery directed at high-level presidential\nadvisers who \xe2\x80\x9cgive advice and make recommendations to the President\xe2\x80\x9d).\nAbsent immunity for a President\xe2\x80\x99s closest advisers, congressional committees could wield their compulsory power to attempt to supervise the\nPresident\xe2\x80\x99s actions, or to harass those advisers in an effort to influence\ntheir conduct, retaliate for actions the committee disliked, or embarrass\nand weaken the President for partisan gain. Such efforts would risk significant congressional encroachment on, and interference with, the President\xe2\x80\x99s prerogatives and his ability to discharge his duties with the advice\nand assistance of his closest advisers. They also would promote a perception that the President is subordinate to Congress, contrary to the Constitution\xe2\x80\x99s separation of governmental powers into equal and coordinate\nbranches.\nSecond, a congressional power to subpoena the President\xe2\x80\x99s closest advisers to testify about matters that occur during the course of discharging\ntheir official duties would threaten Executive Branch confidentiality,\nwhich is necessary (among other things) to ensure that the President can\nobtain the type of sound and candid advice that is essential to the effective\ndischarge of his constitutional duties. The Supreme Court has recognized\n\xe2\x80\x9cthe necessity for protection of the public interest in candid, objective,\nand even blunt or harsh opinions in Presidential decisionmaking.\xe2\x80\x9d United\nStates v. Nixon, 418 U.S. 683, 708 (1974). \xe2\x80\x9cA President and those who\nassist him,\xe2\x80\x9d the Court has explained, \xe2\x80\x9cmust be free to explore alternatives\nin the process of shaping policies and making decisions and to do so in a\nway many would be unwilling to express except privately.\xe2\x80\x9d Id. The prospect of compelled interrogation by a potentially hostile congressional\ncommittee about confidential communications with the President or\namong the President\xe2\x80\x99s immediate staff could chill presidential advisers\n8\n\n\x0cImmunity of the Director of the Office of Political Strategy and Outreach\n\nfrom providing unpopular advice or from fully examining an issue with\nthe President or others.\nTo be sure, the President\xe2\x80\x99s advisers could invoke executive privilege to\ndecline to answer specific questions if they were required to testify. See,\ne.g., Rehnquist Memorandum at 8 & n.4. But the ability to assert executive privilege during live testimony in response to hostile questioning\nwould not remove the threat to the confidentiality of presidential communications. An immediate presidential adviser could be asked, under the\nexpress or implied threat of contempt of Congress, a wide range of unanticipated and hostile questions about highly sensitive deliberations and\ncommunications. In the heat of the moment, without the opportunity for\ncareful reflection, the adviser might have difficulty confining his remarks\nto those that do not reveal such sensitive information. Or the adviser could\nbe reluctant to repeatedly invoke executive privilege, even though validly\napplicable, for fear of the congressional and media condemnation she or\nthe President might endure. These concerns are heightened because, in a\nhearing before a congressional committee, there is no judge or other\nneutral magistrate to whom a witness can turn for protection against\nquestions seeking confidential and privileged information. The committee\nnot only poses the questions to the witness, but also rules on any objections to its own questions according to procedures it establishes. The\npressure of compelled live testimony about White House activities in a\npublic congressional hearing would thus create an inherent and substantial\nrisk of inadvertent or coerced disclosure of confidential information\nrelating to presidential decision-making\xe2\x80\x94thereby ultimately threatening\nthe President\xe2\x80\x99s ability to receive candid and carefully considered advice\nfrom his immediate advisers. To guard against these harms to the President\xe2\x80\x99s ability to discharge his constitutional functions and to the separation of powers, immediate presidential advisers must have absolute immunity from congressional compulsion to testify about matters that occurred during the course of the adviser\xe2\x80\x99s discharge of official duties. 2\nA number of senior presidential advisers have voluntarily testified before Congress as\nan accommodation to a congressional committee\xe2\x80\x99s legitimate interest in investigating\ncertain activities of the Executive Branch. These instances of voluntary testimony do not\nundermine the Executive Branch\xe2\x80\x99s long-established position on absolute immunity.\nUnlike compelled testimony, voluntary testimony by a senior presidential adviser represents an affirmative exercise of presidential autonomy. It reflects a decision by the\n2\n\n9\n\n\x0c38 Op. O.L.C. 5 (2014)\n\nB.\nThis longstanding Executive Branch position is consistent with relevant Supreme Court case law. The Court has not yet considered whether\nCongress may secure the testimony of an immediate presidential adviser through compulsory process. But in an analogous context, the Court\ndid conclude that legislative aides are entitled to immunity under the\nSpeech or Debate Clause that is co-extensive with the immunity afforded Members of Congress themselves. See Gravel v. United States, 408\nU.S. 606 (1972). \xe2\x80\x9cIt is literally impossible,\xe2\x80\x9d the Court explained, \xe2\x80\x9cfor\nMembers of Congress to perform their legislative tasks without the help\nof aides and assistants.\xe2\x80\x9d Id. at 616. Legislative aides must therefore \xe2\x80\x9cbe\ntreated as . . . alter egos\xe2\x80\x9d of the Members they serve. As a result, they\nmust be granted the same immunity as those Members in order to preserve \xe2\x80\x9cthe central role of the Speech or Debate Clause,\xe2\x80\x9d which is \xe2\x80\x9cto\nprevent intimidation of legislators by the Executive and accountability\nbefore a possibly hostile judiciary.\xe2\x80\x9d Id. at 617.\nThe Court\xe2\x80\x99s reasoning in Gravel supports the position that the President\xe2\x80\x99s immediate advisers must share his absolute immunity from congressional compulsion to testify. As noted above, the President\xe2\x80\x99s immediate advisers are his \xe2\x80\x9calter egos,\xe2\x80\x9d allowing him to fulfill the myriad responsibilities of his office in a way it would be \xe2\x80\x9cliterally impossible\xe2\x80\x9d for\nhim to do alone. A congressional power to compel their testimony would\n(as we have discussed) undermine the President\xe2\x80\x99s independence, create\nthe appearance that the President is subordinate to Congress, and impair\nthe President\xe2\x80\x99s ability to receive sound and candid advice, thereby hindering his ability to carry out the functions entrusted to him by the Constitution. Subjecting immediate presidential advisers to congressional testimonial process would thus \xe2\x80\x9cdiminish[] and frustrate[]\xe2\x80\x9d the purpose of the\nPresident\xe2\x80\x99s own absolute immunity from such process\xe2\x80\x94just as in Gravel,\nPresident and his immediate advisers that the benefit of providing such testimony as an\naccommodation to a committee\xe2\x80\x99s interests outweighs the potential for harassment and\nharm to Executive Branch confidentiality. Such testimony, moreover, may be provided on\nterms negotiated to focus and limit the scope of the questioning. Because voluntary\ntestimony represents an exercise of presidential autonomy rather than legally required\ncompliance with congressional will, it does not implicate the separation of powers in the\nsame manner, or to anything like the same extent, as compelled testimony.\n\n10\n\n\x0cImmunity of the Director of the Office of Political Strategy and Outreach\n\ndenying \xe2\x80\x9cSpeech or Debate\xe2\x80\x9d immunity to legislative aides would have\n\xe2\x80\x9cdiminished and frustrated\xe2\x80\x9d the protections granted to Members of Congress under that clause. Gravel, 408 U.S. at 617.\nTo be sure, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court\nrejected a claim of absolute immunity made by senior presidential advisers. But it did so in the context of a civil suit against those advisers for\nmoney damages. In our view, Harlow\xe2\x80\x99s holding that presidential advisers\nare generally entitled to only qualified immunity in suits for money damages should not be extended to the context of congressional subpoenas for\nthe testimony of immediate presidential advisers, because the separation\nof powers concerns that underlie the need for absolute immunity from\ncongressional testimonial compulsion are not present to the same degree\nin civil lawsuits brought by third parties. But see Comm. on Judiciary,\nU.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 100\xe2\x80\x9302\n(D.D.C. 2008) (reading Harlow to preclude absolute immunity for senior\npresidential advisers from compulsion to testify before Congress).\nAs explained above, subjecting an immediate presidential adviser to\nCongress\xe2\x80\x99s subpoena power would threaten the President\xe2\x80\x99s autonomy and\nhis ability to receive sound and candid advice. Both of these prospective\nharms would raise acute concerns related to the separation of powers. A\nsuit for damages brought by a private party does not raise comparable\nseparation of powers concerns. It is true that such a suit involves a judicially supervised inquiry into the actions of presidential advisers, and\nthat the threat of financial liability from such a suit may chill the conduct\nof those advisers. See Harlow, 457 U.S. at 814; Miers, 558 F. Supp. 2d at\n101\xe2\x80\x9302. But, in civil damages actions, the Judiciary acts as a disinterested arbiter of a private dispute, not as a party in interest to the very lawsuit it adjudicates. Indeed, the court is charged with impartially administering procedural rules designed to protect witnesses from irrelevant,\nargumentative, harassing, cumulative, and other problematic questions.\nCf., e.g., Fed. R. Civ. P. 26(b); Fed. R. Evid. 103. And mechanisms exist\nto eliminate unmeritorious claims. See, e.g., Fed. R. Civ. P. 12(b), (c),\n(e), (f ); Fed. R. Civ. P. 56. In contrast, in the congressional context (as\nnoted earlier), the subpoenaing committee is both the interested party and\nthe presiding authority, asking questions that further its own interests,\nand setting the rules for the proceeding and judging whether a witness\nhas failed to comply with those rules. In part for these reasons, a con11\n\n\x0c38 Op. O.L.C. 5 (2014)\n\ngressional proceeding threatens to subject presidential advisers to coercion and harassment, create a heightened impression of presidential\nsubordination to Congress, and cause public disclosure of confidential\npresidential communications in a way that the careful development of\nevidence through the judicially monitored application of the Federal\nRules of Civil Procedure does not.\nHarlow also contains a discussion of Gravel, in which the Court rejected the defendants\xe2\x80\x99 argument that, as \xe2\x80\x9calter egos\xe2\x80\x9d of the President,\nthey should be entitled to absolute immunity from civil claims for damages, derivative of the absolute immunity afforded the President. But we\ndo not think Harlow\xe2\x80\x99s discussion undermines the relevance of Gravel to\nthe issue of immunity from congressional compulsion to testify. In Harlow, the Court conceded that the defendants\xe2\x80\x99 claim of absolute immunity\nbased on Gravel was \xe2\x80\x9cnot without force,\xe2\x80\x9d but concluded that the argument would \xe2\x80\x9csweep[] too far,\xe2\x80\x9d because it would imply that Cabinet\nofficials too should enjoy derivative absolute immunity, and the Court\nhad already decided (in Butz v. Economou, 438 U.S. 478 (1978)) that\nCabinet officials\xe2\x80\x94\xe2\x80\x9cPresidential subordinates some of whose essential\nroles are acknowledged by the Constitution itself \xe2\x80\x9d\xe2\x80\x94 are entitled to only\nqualified immunity. Harlow, 457 U.S. at 810.\nGiven the dissimilarities between civil suits for damages and compelled congressional testimony just discussed, it is doubtful that this\ndiscussion in Harlow (or the holding in Butz) bears much on the question\nof whether immediate presidential advisers have absolute immunity from\ncongressional compulsion to testify. Further, even if it is appropriate to\nharmonize the immunity afforded Cabinet officials and presidential\nadvisers in the context of suits for damages, the same is not true in the\ncontext of compelled congressional testimony. This is because the prospect of compelled congressional testimony by a President\xe2\x80\x99s immediate\nadvisers would, as a general matter, be significantly more damaging to\nthe separation of powers than the prospect of compelled testimony by a\nCabinet official. As a department head, a Cabinet officer is confirmed by\nthe Senate, and her authority and functions are generally established by\nstatute. It may be a significant part of her regular duties to testify before\nCongress about the implementation of laws that Congress has passed. Cf.\nRehnquist Memorandum at 8\xe2\x80\x939. By contrast, an immediate presidential\nadviser is appointed solely by the President, without Senate confirmation,\n12\n\n\x0cImmunity of the Director of the Office of Political Strategy and Outreach\n\nand his role is to advise and assist the President in the performance of the\nPresident\xe2\x80\x99s constitutionally assigned functions. The separation of powers\nconcerns identified above\xe2\x80\x94the threats to both the independence of the\npresidency and the President\xe2\x80\x99s ability to obtain candid and sound advice\xe2\x80\x94are significantly more acute in the case of close personal advisers\nthan high-ranking Executive Branch officials who do not function as the\nPresident\xe2\x80\x99s \xe2\x80\x9calter egos.\xe2\x80\x9d Cf. Harlow, 457 U.S. at 828 (Burger, C.J.,\ndissenting) (faulting the Court majority for \xe2\x80\x9cfail[ing] to distinguish the\nrole of a President or his \xe2\x80\x98elbow aides\xe2\x80\x99 from the role of Cabinet officers,\nwho are department heads rather than \xe2\x80\x98alter egos,\xe2\x80\x99\xe2\x80\x9d and stating that \xe2\x80\x9c[i]t\nwould be in no sense inconsistent to hold that a President\xe2\x80\x99s personal\naides have greater immunity than Cabinet officers\xe2\x80\x9d); id. at 810 n.14\n(majority opinion) (acknowledging Chief Justice Burger\xe2\x80\x99s argument and\nnoting that \xe2\x80\x9cit is impossible to generalize about the role of \xe2\x80\x98offices\xe2\x80\x99 in an\nindividual President\xe2\x80\x99s administration\xe2\x80\x9d because some individuals have\nserved simultaneously in both presidential advisory and Cabinet positions). 3\nSimilarly, in United States v. Nixon, the Supreme Court expressly distinguished the privilege issues arising in criminal cases from the privilege\nissues that would arise in the context of compelled congressional testimony. In Nixon, the Court held that the President could assert only a qualified, rather than an absolute, privilege to resist a subpoena for tape recordings and documents issued in the course of a criminal proceeding brought\nagainst certain third parties. 418 U.S. 683; see also Sealed Case, 121 F.3d\nat 753\xe2\x80\x9357 (presidential communications privilege may be overcome by\nneed for information in a grand jury investigation). But the Court made\n3 The Harlow Court also observed that civil suits for money damages against presidential advisers \xe2\x80\x9cgenerally do not invoke separation-of-powers considerations to the\nsame extent as suits against the President himself.\xe2\x80\x9d 457 U.S. at 811 n.17. This observation\nis consistent with Nixon v. Fitzgerald, a case decided the same day as Harlow, in which\nthe Court held that the President \xe2\x80\x9cis entitled to absolute immunity from damages liability\npredicated on his official acts.\xe2\x80\x9d 457 U.S. 731, 749 (1982). This logic too suggests that the\nPresident\xe2\x80\x99s immediate advisers should be absolutely immune from congressional compulsion to testify, because (as we have explained) compelling immediate presidential advisers to testify before Congress would risk serious harm to the separation of powers that is\nclosely related to the harm that would be caused by compelling the President himself to\nappear, and because absolute immunity for the President\xe2\x80\x99s immediate advisers is necessary to render the President\xe2\x80\x99s own immunity fully meaningful.\n\n13\n\n\x0c38 Op. O.L.C. 5 (2014)\n\nclear that it was \xe2\x80\x9cnot . . . concerned with the balance between the President\xe2\x80\x99s . . . confidentiality interest and congressional demands for information.\xe2\x80\x9d Nixon, 418 U.S. at 712 n.19; see also id. (\xe2\x80\x9cWe address only the\nconflict between the President\xe2\x80\x99s assertion of a generalized privilege of\nconfidentiality and the constitutional need for relevant evidence in criminal trials.\xe2\x80\x9d); Sealed Case, 121 F.3d at 753 (recognizing that the unique\n\xe2\x80\x9cconstitutional considerations\xe2\x80\x9d in the \xe2\x80\x9ccongressional-executive context\xe2\x80\x9d\nrender limitations on executive privilege in the judicial context inapposite). Particularly in light of this explicit statement, we do not believe\nNixon casts doubt on the President\xe2\x80\x99s\xe2\x80\x94and by extension his immediate\nadvisers\xe2\x80\x99\xe2\x80\x94immunity from congressional compulsion to testify. As with\nliability for private suits for damages, requiring the President to comply\nwith a third-party subpoena in a criminal case is very different from\xe2\x80\x94and\nhas very different separation of powers implications than\xe2\x80\x94requiring him\nto comply with a congressional subpoena for testimony. This is so in at\nleast two respects.\nFirst, as the Court explained in Cheney, \xe2\x80\x9cthe need for information in the\ncriminal context is\xe2\x80\x9d particularly weighty \xe2\x80\x9cbecause \xe2\x80\x98our historic[al] commitment to the rule of law . . . is nowhere more profoundly manifest than\nin our view that the twofold aim of [criminal justice] is that guilt not\nescape or innocence suffer.\xe2\x80\x99\xe2\x80\x9d 542 U.S. at 384 (alterations in original)\n(internal quotation marks omitted) (quoting United States v. Nixon, 418\nU.S. at 708\xe2\x80\x9309). Outside the criminal context, \xe2\x80\x9cthe need for information\n. . . does not share the [same] urgency or significance.\xe2\x80\x9d Id. Comparing the\ninformational need of congressional committees with that of grand juries,\nfor instance, the en banc Court of Appeals for the D.C. Circuit explained\nthat\nwhile factfinding by a legislative committee is undeniably a part of\nits task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political\nacceptability, than on precise reconstruction of past events. . . . In\ncontrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes.\nSenate Select Comm. on Presidential Campaign Activities v. Nixon, 498\nF.2d 725, 732 (D.C. Cir. 1974) (en banc).\n14\n\n\x0cImmunity of the Director of the Office of Political Strategy and Outreach\n\nSecond, the potentially harmful effect on the President\xe2\x80\x99s ability to carry\nout his duties and on the separation of powers is more serious in the\ncontext of subpoenaed congressional testimony than in the context of\ncompulsory judicial process in a criminal case. As in the civil context, the\ncriminal justice system imposes \xe2\x80\x9cvarious constraints, albeit imperfect, to\nfilter out insubstantial legal claims\xe2\x80\x9d and minimize the damage to the\nPresident\xe2\x80\x99s ability to discharge his duties, such as prosecutorial discretion\n(with its attendant ethical constraints) and Federal Rule of Criminal\nProcedure 17. Cheney, 542 U.S. at 386. Congress is not subject to such\nconstraints. And, of course, a criminal subpoena does not raise the prospect of the President (or one of his immediate advisers) being summoned\nat Congress\xe2\x80\x99s will to appear before it to respond at a hearing conducted\nentirely on the terms and in the manner Congress chooses.\nTwo lower-court cases also bear mention. In Senate Select Committee,\nthe Court of Appeals for the D.C. Circuit addressed a President\xe2\x80\x99s obligation to comply with a congressional subpoena, and concluded that the\nPresident could not assert a generalized claim of executive privilege to\nabsolutely immunize himself from turning over certain tape recordings of\npresidential conversations. 498 F.2d 725. Again, we do not believe this\nholding undermines our conclusion that the President and his immediate\nadvisers are absolutely immune from congressional compulsion to testify.\nIn our view, Congress summoning a President to appear before it would\nsuggest, far more than Congress compelling a President to turn over\nevidence, an Executive subordinate to the Legislature. In addition, when\nCongress issues a subpoena for documents, the Executive Branch may\ntake time to review the request and object to any demands that encroach\non privileged areas. Any documents that are produced may be redacted\nwhere necessary. By contrast (and as already discussed), a witness testifying before Congress may, in the heat of the moment and under pressure,\ninadvertently reveal information that should remain confidential.\nFinally, in Committee on Judiciary v. Miers, the District Court for the\nDistrict of Columbia considered a question very similar to the one raised\nhere, and concluded that a former Counsel to the President was not entitled to absolute immunity from congressional compulsion to testify. 558\nF. Supp. 2d at 99. The court\xe2\x80\x99s analysis relied heavily on Harlow, Harlow\xe2\x80\x99s discussion of Gravel, and Nixon. 558 F. Supp. 2d at 99\xe2\x80\x93105. For the\nreasons set forth above, we believe those cases do not undermine the\n15\n\n\x0c38 Op. O.L.C. 5 (2014)\n\nExecutive Branch\xe2\x80\x99s longstanding position that the President\xe2\x80\x99s immediate\nadvisers are immune from congressional compulsion to testify. We therefore respectfully disagree with the Miers court\xe2\x80\x99s analysis and conclusion,\nand adhere to the Executive Branch\xe2\x80\x99s longstanding view that the President\xe2\x80\x99s immediate advisers have absolute immunity from congressional\ncompulsion to testify.\nC.\nApplying this longstanding view, we believe that Mr. Simas has such\nimmunity. We understand that Mr. Simas spends the majority of his time\nadvising or preparing advice for the President. He is a member of a group\nof the President\xe2\x80\x99s closest advisers who regularly meet with the President,\nas often as several times a week. In addition, Mr. Simas frequently meets\nwith the President alone and with other advisers, at the President\xe2\x80\x99s or Mr.\nSimas\xe2\x80\x99s request. See Rehnquist Memorandum at 7 (President\xe2\x80\x99s \xe2\x80\x9cimmediate advisers\xe2\x80\x9d are \xe2\x80\x9cthose who customarily meet with the President on a\nregular or frequent basis\xe2\x80\x9d). Mr. Simas is responsible for advising the\nPresident on such matters as what policy issues warrant his attention. He\nalso advises the President on how his policies are being received, and on\nhow to shape policy to align it with the needs and desires of the American\npublic. Mr. Simas thus plays a crucial role in deciding how best to formulate and communicate the President\xe2\x80\x99s agenda across a wide range of\npolicy issues. In these respects, Mr. Simas\xe2\x80\x99s duties are comparable to\nthose of other immediate advisers who we have previously recognized are\nentitled to absolute immunity from congressional compulsion to testify.\nSee, e.g., Letter for Fred F. Fielding, Counsel to the President, from\nSteven G. Bradbury, Principal Deputy Assistant Attorney General, Office\nof Legal Counsel (Aug. 1, 2007) (immunity of Karl Rove, adviser to\nPresident Bush); Bradbury Memorandum (immunity of Harriet Miers,\nCounsel to President Bush). Consistent with these precedents, we likewise\nconclude that Mr. Simas has absolute immunity from compulsion to\ntestify before Congress about his service to the President in the Office of\nPolitical Strategy and Outreach.\nII.\nFor the reasons discussed above, we believe that Mr. Simas is entitled\nto immunity that is \xe2\x80\x9cabsolute and may not be overborne by [the Commit16\n\n\x0cImmunity of the Director of the Office of Political Strategy and Outreach\n\ntee\xe2\x80\x99s] competing interests.\xe2\x80\x9d Assertion of Executive Privilege, 23 Op.\nO.L.C. at 4. But even if Mr. Simas were only entitled to qualified immunity, which could be overcome by a sufficient showing of compelling need,\nwe would conclude that the Committee had not made the requisite showing.\nA.\nNo court has yet considered the standard that would be used to determine whether a congressional committee\xe2\x80\x99s interests overrode an immediate presidential adviser\xe2\x80\x99s immunity from congressional compulsion to\ntestify, assuming that immunity were qualified rather than absolute. But\ntwo decisions of the Court of Appeals for the D.C. Circuit suggest possible standards. In Senate Select Committee, in the context of a presidential\nassertion of executive privilege against a congressional subpoena for tape\nrecordings of conversations between the President and his Counsel, the\ncourt held that the Committee could overcome the assertion only by\nshowing that \xe2\x80\x9cthe subpoenaed evidence is demonstrably critical to the\nresponsible fulfillment of [its] functions.\xe2\x80\x9d 498 F.2d at 731; see also\nMcGrain v. Daugherty, 273 U.S. 135, 176 (1927) (congressional oversight power may be used only to \xe2\x80\x9cobtain information in aid of the legislative function\xe2\x80\x9d). And in Sealed Case, the court held that \xe2\x80\x9cin order to overcome a claim of presidential privilege raised against a grand jury subpoena, it is necessary to specifically demonstrate why it is likely that the\nevidence contained in presidential communications is important to the\nongoing grand jury investigation and why this evidence is not available\nfrom another source.\xe2\x80\x9d 121 F.3d at 757. (To be \xe2\x80\x9cimportant\xe2\x80\x9d to an investigation, \xe2\x80\x9cthe evidence sought must be directly relevant to issues that are\nexpected to be central to the trial.\xe2\x80\x9d Id. at 754.)\nIn our view, Senate Select Committee would provide the more appropriate standard for assessing whether a congressional committee\xe2\x80\x99s assertion of need had overcome an immediate presidential adviser\xe2\x80\x99s qualified\ntestimonial immunity. As explained above, judicial proceedings\xe2\x80\x94including criminal proceedings\xe2\x80\x94differ in fundamental ways from congressional\nhearings. Because the Senate Select Committee standard was articulated in\nthe congressional oversight context, and because it seeks to preserve the\nPresident\xe2\x80\x99s prerogatives while recognizing Congress\xe2\x80\x99s legitimate interest\nin information crucial to its legislative function, we believe it would be an\n17\n\n\x0c38 Op. O.L.C. 5 (2014)\n\nappropriate standard for evaluating whether an immediate presidential\nadviser\xe2\x80\x99s qualified testimonial immunity has been overcome.\nIn applying this standard, it would be important to bear in mind the\n\xe2\x80\x9cimplicit constitutional mandate\xe2\x80\x9d that the coordinate branches of government \xe2\x80\x9cseek optimal accommodation through a realistic evaluation of\nthe needs of the conflicting branches in the particular fact situation.\xe2\x80\x9d\nUnited States v. Am. Tel. & Tel. Co., 567 F.2d 121, 127 (D.C. Cir. 1977).\nThrough this accommodation process, which has been followed for decades, the political branches strive to avoid the \xe2\x80\x9cconstitutional confrontation\xe2\x80\x9d that erupts when the President must make an assertion of privilege,\nor when an immediate presidential adviser\xe2\x80\x99s testimonial immunity must\nbe invoked. See Cheney, 542 U.S. at 389\xe2\x80\x9390 (quoting United States v.\nNixon, 418 U.S. at 692); see also id. (\xe2\x80\x9c[C]onstitutional confrontation\nbetween the two branches should be avoided whenever possible.\xe2\x80\x9d (internal quotation marks omitted)). Accordingly, before an immediate presidential adviser\xe2\x80\x99s compelled testimony could be deemed demonstrably\ncritical to the responsible fulfillment of a congressional committee\xe2\x80\x99s\nlegislative function, a congressional committee would, at a minimum,\nneed to demonstrate why information available to it from other sources\nwas inadequate to meet its legitimate needs. See Senate Select Committee,\n498 F.2d at 732\xe2\x80\x9333 (noting that, in light of the President\xe2\x80\x99s public release\nof partially redacted transcripts of the subpoenaed tapes, the court had\nasked the Select Committee to state \xe2\x80\x9cin what specific respects the [publicly available] transcripts . . . are deficient in meeting [its] need,\xe2\x80\x9d and then\nfinding that the Committee \xe2\x80\x9cpoints to no specific legislative decisions that\ncannot responsibly be made without access to materials uniquely contained in the tapes\xe2\x80\x9d).\nB.\nThe Committee has not shown that Mr. Simas\xe2\x80\x99s testimony is demonstrably critical to the responsible fulfillment of its legislative function.\nThe Committee\xe2\x80\x99s investigation began with a broad request for \xe2\x80\x9call documents and communications, including e-mails, related or referring to the\nOffice of Political Strategy and Outreach or the reopening of the Office\nof Political Affairs,\xe2\x80\x9d along with a request that White House officials brief\nCommittee staff. Letter for Denis McDonough, White House Chief of\nStaff, from Darrell E. Issa, Chairman, Committee on Oversight and\n18\n\n\x0cImmunity of the Director of the Office of Political Strategy and Outreach\n\nGovernment Reform, House of Representatives at 4 (Mar. 18, 2014).\nOver the course of letters exchanged during the next three months, the\nWhite House explained that the Office engages only in activities that are\npermissible under the Hatch Act, and that the White House has taken\nsteps to ensure that OPSO staff are trained in Hatch Act compliance. In\nresponse to those letters, the Committee reiterated its broad request for\ndocuments, but did not articulate particular unanswered questions or\nidentify incidents in which OPSO staff may have violated the Hatch Act\nor related statutes. See Letter for Darrell E. Issa, Chairman, Committee\non Oversight and Government Reform, House of Representatives, from\nKathryn H. Ruemmler, Counsel to the President (Mar. 26, 2014); Letter\nfor Denis McDonough, White House Chief of Staff, from Darrell E. Issa,\nChairman, Committee on Oversight and Government Reform, House of\nRepresentatives at 1 & n.5 (May 27, 2014); Letter for Darrell E. Issa,\nChairman, Committee on Oversight and Government Reform, House of\nRepresentatives, from W. Neil Eggleston, Counsel to the President at 1\xe2\x80\x932\n(June 13, 2014).\nOn July 3, 2014, the Committee requested Mr. Simas\xe2\x80\x99s testimony at a\npublic hearing to understand \xe2\x80\x9cwhether the White House is taking adequate steps to ensure that political activity by Administration officials\ncomplies with relevant statutes, including the Hatch Act,\xe2\x80\x9d and to understand \xe2\x80\x9cthe role and function of the White House Office of Political\nStrategy and Outreach.\xe2\x80\x9d Invitation Letter. The Committee did not, however, identify any specific unanswered questions that Mr. Simas\xe2\x80\x99s testimony was necessary to answer. The White House responded with a letter\nproviding additional information about White House efforts to ensure\nthat OPSO was operating in a manner consistent with applicable statutes, and explaining that the activities cited by the Committee did not\nviolate those statutes. See Letter for Darrell E. Issa, Chairman, Committee on Oversight and Government Reform, House of Representatives,\nfrom W. Neil Eggleston, Counsel to the President (July 10, 2014). At\nthat time, the White House also provided various documents reflecting\nits efforts to ensure that OPSO staff comply with relevant laws, including materials on the Hatch Act used in a mandatory training for all staff\nassigned to OPSO, e-mail correspondence demonstrating that OPSO\nstaff were directed to read critical reports issued by the Office of Special\nCounsel and the Committee regarding the activities of the previous\n19\n\n\x0c38 Op. O.L.C. 5 (2014)\n\nAdministration\xe2\x80\x99s Office of Political Affairs, documentation of a meeting\nbetween lawyers from the White House Counsel\xe2\x80\x99s Office and the Office\nof Special Counsel concerning compliance with the Hatch Act, and a\nmemorandum sent to all White House staff from the President\xe2\x80\x99s Counsel\nreminding them of the law governing political activity by federal employees. See id. at 3. Finally, the White House Counsel\xe2\x80\x99s Office offered\nto brief the Committee to address any outstanding questions regarding\nOPSO\xe2\x80\x99s activities. See id.\nAfter receiving these responses, the Committee, on Friday, July 11,\n2014, subpoenaed Mr. Simas to testify at a public hearing on Wednesday,\nJuly 16. At the same time, the Committee indicated that it would accept\nthe White House Counsel\xe2\x80\x99s Office\xe2\x80\x99s offer to brief the Committee, and\nwould determine after the briefing whether to withdraw the subpoena for\nMr. Simas\xe2\x80\x99s testimony. See Letter for W. Neil Eggleston, Counsel to the\nPresident, from Darrell E. Issa, Chairman, Committee on Oversight and\nGovernment Reform, House of Representatives (July 11, 2014). The\nWhite House provided that briefing on Tuesday, July 15, the day before\nthe hearing was to occur. Following the briefing, the Committee indicated\nthat Mr. Simas\xe2\x80\x99s testimony remained necessary. It explained that, during\nthe briefing, White House staff \xe2\x80\x9cdeclined to discuss compliance with the\nCommittee\xe2\x80\x99s document requests or even describe the process and identify\nrelevant officials involved in the decision to reopen the White House\npolitical office.\xe2\x80\x9d Letter for W. Neil Eggleston, Counsel to the President,\nfrom Darrell E. Issa, Chairman, Committee on Oversight and Government\nReform, House of Representatives at 1 (July 15, 2014).\nThe Committee has not adequately explained why, despite the information it has already received concerning OPSO\xe2\x80\x99s activities and the\nWhite House\xe2\x80\x99s efforts to ensure compliance with relevant statutes, it\nrequires Mr. Simas\xe2\x80\x99s public testimony in order to satisfy the legitimate\naims of its oversight investigation. Although the Committee has now\nindicated that it needs additional information on two specific topics, it has\nnot explained why it must obtain that information from Mr. Simas at a\nCommittee hearing. And to the extent that the Committee has other \xe2\x80\x9coutstanding questions for Mr. Simas,\xe2\x80\x9d id. at 2, the Committee has not identified them, let alone explained why he must answer them at a public hearing. At this point, it is not evident that further efforts at accommodation\nwould be futile, and hence that compelling an immediate presidential\n20\n\n\x0cImmunity of the Director of the Office of Political Strategy and Outreach\n\nadviser to testify before Congress is a justifiable next step. Because the\nCommittee has not explained why (and it is not otherwise clear that) Mr.\nSimas\xe2\x80\x99s live testimony is \xe2\x80\x9cdemonstrably critical\xe2\x80\x9d to the responsible fulfillment of the Committee\xe2\x80\x99s functions, we conclude that the Committee\nhas not met the standard that would apply for overcoming Mr. Simas\xe2\x80\x99s\nimmunity from congressional compulsion to testify, assuming that immunity were qualified rather than absolute. 4\nIII.\nFor the foregoing reasons, we conclude that Mr. Simas is immune from\nthe House Committee on Oversight and Government Reform\xe2\x80\x99s subpoena\nto compel him to testify about matters concerning his service to the President in the Office of Political Strategy and Outreach.\nKARL R. THOMPSON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\nEven if it were appropriate to apply the Sealed Case standard for overcoming qualified executive privilege in the context of congressional testimonial immunity, Mr. Simas\xe2\x80\x99s\ntestimonial immunity would not have been overcome here. For the reasons set forth in the\ntext, we do not believe that the Committee could show that the testimony it demands from\nMr. Simas is directly relevant to issues that are central to the Committee\xe2\x80\x99s investigation\nand that the information that would be obtained through that testimony is not available\nfrom another source.\n4\n\n21\n\n\x0c'


b"March 1, 1978\n\n78-14\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, DEPARTMENT OF\nTRANSPORTATION\nAdministrative Law\xe2\x80\x94 Agency Authority\xe2\x80\x94\nPayment of Attorneys\xe2\x80\x99 Fees\xe2\x80\x94Greene County\nPlanning Board v. Federal Power\nCommission (559 F. (2d) 1227)\n\nThis responds to your request for our opinion whether any authority your\nDepartment might have to provide com pensation, under appropriate standards\nand procedures, to parties intervening in proceedings before the Department of\nTransportation, would be circumscribed by the en banc decision of the Second\nCircuit in Greene County Planning Board v. Federal Power Commission, 559\nF. (2d) 1227 (1977), cert, denied, 434 U .S. 1086 (1978). For reasons stated\nbelow, it is our opinion that the holding o f Greene County does not preclude\nyour Department from determining whether it has explicit or implicit statutory\nauthority to provide compensation in the form o f expert witnesses\xe2\x80\x99 fees,\nattorneys\xe2\x80\x99 fees, and other expenses o f parties who intervene in proceedings\nbefore it.\nAlthough the history o f the Greene County litigation is somewhat complex, a\nbrief sketch of that history will suffice for present purposes. Party intervenors\nin proceedings before the Federal Pow er Commission (FPC), now the Federal\nEnergy Regulatory Commission (FERC), sought compensation from the FPC\nfor certain expenses incurred by them in those proceedings. The FPC ultimately\ntook the position, based on its interpretation of certain provisions of its organic\nstatute, the Federal Power A c t,1 that it lacked statutory authority to award such\ncompensation. The Second Circuit, relying at least in part on the interpretation\ngiven by the FPC to its organic statute, held that the FPC lacked authority to\nprovide the compensation requested.\nThe party intervenors in Greene County then petitioned the Supreme Court\nfor a writ o f certiorari to review the Second Circuit decision. As you may\nknow, the Solicitor General filed with the Court a brief for the present\n116 U.S.C. \xc2\xa7\xc2\xa7 793, 825g, 825h. and 825m(c).'\n\n60\n\n\x0crespondent, Federal Energy Regulatory Commission. In that brief, the Solicitor\nGeneral took the position that the Second Circuit decision was incorrect and\nsuggested to the Court that it grant certiorari, vacate the Second Circuit\njudgm ent, and remand the case to the Second Circuit for reconsideration in\nlight of the present position of FERC, that its organic statute does provide\nauthority for the compensation at issue.\nBecause the holding o f the Second Circuit in Greene County involved only a\nconstruction given to the Federal Power Act, 559 F. (2d), at 1238, we think it\nclear that no Department or Agency (including your Department) other than,\npossibly, FERC is bound by that holding. Nor do we think that the Second\nCircuit, in reaching its conclusion regarding the Federal Power Act, announced\na principle o f law broad enough to cover other Departments and Agencies. In\nfact, the court appeared to give great weight to the views of the FPC concerning\nits authority under the Federal Power Act in reaching its decision. See 559 F.\n(2d), at 1236-37, and n. 2 .2\nThe Second Circuit could have based its decision on a broader ground; for\nexample, it could have taken the position that no compensation for expenses\nsuch as attorneys\xe2\x80\x99 fees could be paid absent explicit statutory authority. Had it\ndone so, its decision would have created doubt as to whether other Departments\nand Agencies could construe their respective organic statutes as providing\npower to compensate where such authority was not explicit. The Second\nCircuit, however, did not do so, thus obviating the difficult question that might\nbe presented by a broader opinion.3\nWe conclude that, notwithstanding the Greene County decision, your\nDepartment is required to interpret its own organic statute and any other\nrelevant statutory provisions and determine whether Congress has authorized it,\nexplicitly or implicitly, to provide compensation in proceedings before it.\nAssuming it concludes that such power exists, it additionally will have to\ndetermine the standards and procedures under which such compensation may\nbe provided.\nWe would add that we attach no significance to the Supreme C ourt\xe2\x80\x99s denial\nof certiorari in the Greene County case. That action did not constitute a decision\non the merits or otherwise address the question which you have raised with us.\nJo h n M . H a r m o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n2T his p o in t w as m ade in the d isse n tin g p an el o p in io n o f Ju d g e V an G ra a fe ila n d , w ho w ro te the\nm ajo rity en banc o p in io n .\n\xe2\x80\x99F or e x a m p le , w h e th e r o th e r F ed eral D e p artm e n ts an d A g e n cie s w o u ld h ave to c o n fo rm th e ir\nco n d u ct to th e S eco n d C irc u it\xe2\x80\x99s d e c isio n m ig h t its e lf p o se a su b sta n tia l q u estio n .\n\n61\n\n\x0c"


b'Reappointment of a Retired Judge to the Court of Federal\nClaims\nThe President may nom inate and, subject to the advice and consent o f the S enate, appoint to the\nU.S. C ourt o f Federal Claim s an individual w ho has previously retired from th at Court and w ho\nis receiving a retirem ent annuity as a senior judge. U pon assum ption o f active judicial service,\nthe ju d g e m ust forfeit the retirem ent annuity for the duration o f the service\n\nDecember 3, 1997\nM e m o r a n d u m O p in io n f o r t h e D e p u t y A s s is t a n t A t t o r n e y G e n e r a l\nO f f ic e o f P o l ic y D e v e l o p m e n t\n\nThis memorandum responds to your request for our opinion concerning whether\nthe President may reappoint to the United States Court of Federal Claims a\nnominee who has completed a fifteen-year term on that court and is a retired\n\xe2\x80\x9c senior judge\xe2\x80\x9d as of the time of her nomination and subsequent reappointment.\nFor the reasons set forth below, we conclude that the President may nominate\nand, with the advice and consent of the Senate, appoint a retired judge to the\nCourt of Federal Claims.\nI.\n\nWe turn first to the statutory framework concerning the appointment and retire\xc2\xad\nment of judges serving on the Court of Federal Claims. The issue raised here\nis whether under these provisions, a judge who has elected to take senior status\nand receive the corresponding retirement annuity becomes ineligible for reappoint\xc2\xad\nment.\nSection 171(a) of title 28 of the United States Code states that the \xe2\x80\x9c President\nshall appoint, by and with the advice and consent of the Senate,\xe2\x80\x9d sixteen judges\nconstituting the Court of Federal Claims. 28 U.S.C. \xc2\xa7 171(a) (1994). Section 172\nprovides that each judge \xe2\x80\x9c shall be appointed for a term of fifteen years.\xe2\x80\x9d 28\nU.S.C. \xc2\xa7 172 (1994).\nSection 178 of title 28 prescribes certain criteria under which a judge on the\nCourt of Federal Claims is eligible to retire as a \xe2\x80\x9c senior judge\xe2\x80\x9d and receive an\nannuity.1 28 U.S.C. \xc2\xa7 178(a)-(b) (1994). We understand that the judge in question\nis eligible to take senior status and receive a retirement annuity under \xc2\xa7 178(b),\nwhich provides for the retirement of judges who have not been reappointed fol\xc2\xad\nlowing the expiration of their terms of office.2\n\xe2\x80\xa2The statute states that a \xe2\x80\x9c senior ju d g e\xe2\x80\x9d shall perform certain judicial duties requested by the Chief Judge of\nthe court 28 U S C \xc2\xa7 178(d)-(e) (1994)\n2 In addition to those judges who are not reappointed (under specified circumstances), the statute also provides\nthat judges may take senior status and receive a retirement annuity based upon certain criteria relating to age and\nContinued\n\n211\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nThe retirement provisions under \xc2\xa7 178(b) appear to have been intended to sup\xc2\xad\nport greater judicial independence by providing an annuity (equal to an active\njudge\xe2\x80\x99s salary) to those judges w ho would have accepted, but did not receive,\nreappointment and who are not otherwise eligible to receive the retirement annuity\nbased upon age. See H.R. Rep. No. 101-734, at 24\xe2\x80\x9425 (1990). Accordingly, to\nbe eligible for senior status and to receive the retirement annuity under \xc2\xa7 178(b),\na judge must have served at least one full term on the court and have expressed\nin writing to the President her willingness to be reappointed.3 28 U.S.C. \xc2\xa7 178(b).\nA judge meeting these eligibility requirements may then elect to take senior status\nand to receive the retirement annuity pursuant to \xc2\xa7 178 by notifying the Adminis\xc2\xad\ntrative Office of the United States Courts \xe2\x80\x9c any time before the day after the day\non which his or her successor takes office.\xe2\x80\x9d Id. \xc2\xa7 178(f)(1)(A) (1994).\nThe statute also sets out certain circumstances under which a retired judge will\nforfeit, permanently or temporarily, the annuity otherwise due under \xc2\xa7 178. See\ngenerally 28 U.S.C. \xc2\xa7 178(j) (1994). Specifically relevant here, a judge on the\nCourt o f Federal Claims who retires under the senior status annuity provisions\nshall forfeit all rights to her annuity if she \xe2\x80\x98 \xe2\x80\x98accepts compensation for civil office\nor employment under the Government of the United States\xe2\x80\x9d other than for her\njudicial duties as a senior judge on the Court of Federal Claims. Id. \xc2\xa7 178(j)(3).\nThe forfeiture, however, is limited to the period during which such compensation\nis received. Id.\nII.\nUpon review of the statutory scheme regarding the appointment and retirement\nof judges on the Court of Federal Claims, we find no relevant limitation on whom\nthe President may nominate and appoint. First, \xc2\xa7 171 provides for presidential\nappointment, subject only to the advice and consent of the Senate. The provision\nis straightforward and includes no restriction on presidential appointment or other\nrequirement for eligibility.\nSecond, we find nothing in the retirement scheme in \xc2\xa7 178 or elsewhere in the\nstatute that limits, by implication or otherwise, the ability of the President to\nreappoint a retired judge to the Court of Federal Claims. The time frame pre\xc2\xad\nscribed in the statute during which a Federal Claims judge must express interest\nin reappointment limits only the eligibility of the judge to take senior status retire\xc2\xad\nlength of service 28 U S C \xc2\xa7 178(a). A judge who retires or who is removed from office solely on the basis of\ndisability is also eligible to receive the retirement annuity, but cannot retire as a \xe2\x80\x9c senior judge \xe2\x80\x9d Id. \xc2\xa7 178(c), (e)(1).\n3The statute further prescribes that the ju d g e \xe2\x80\x99s willingness to serve another term must be expressed within a\nspecific time period: not earlier than nine months prior to the expiration of her term and not later than six months\npnor to the date o f expiration 28 U S C \xc2\xa7 178(b)(2) We understand that the judge in question has expressed her\nwillingness to accept reappointment within the prescribed time frame\n\n212\n\n\x0cReappointment o f a Retired Judge to the Court o f Federal Claims\n\nment and receive the annuity under \xc2\xa7 178; it does not limit or even relate to the\njudge\xe2\x80\x99s eligibility for reappointment.4\nFurthermore, the annuity scheme contemplates that a senior judge receiving an\nannuity may accept subsequent government employment. In such a case, the\nstatute provides that during the period she accepts other federal compensation,\nthe senior judge forfeits the annuity that she would receive as a senior judge.\n28 U.S.C. \xc2\xa7 178(j)(3). Thus, it appears that a judge who has retired under \xc2\xa7 178\nmay be reappointed to the court and, upon resumption of active service, would\nforfeit her retirement annuity during the period of her term of office.\nThird, we find nothing in the legislative history of the statute that suggests any\nintention to limit the President\xe2\x80\x99s ability to reappoint a retired judge. As we have\nobserved, the retirement provisions under \xc2\xa7 178(b) appear to have been designed\nto foster judicial independence by providing an annuity to those judges who,\nalthough willing to serve, are not reappointed to another term. Thus, the legislative\npurpose of the retirement provisions appears to have been to protect judges from\nthe failure of reappointment, not to prevent such reappointment.\nIII.\nOn the basis of the plain language of the statute and its purpose, we conclude\nthat pursuant to 28 U.S.C. \xc2\xa7 171, the President may nominate and, subject to the\nadvice and consent of the Senate, appoint to the Court of Federal Claims an indi\xc2\xad\nvidual who has previously retired from the Court and who is receiving, under\n28 U.S.C. \xc2\xa7 178, a retirement annuity as a senior judge. Upon assumption of active\njudicial service as a Federal Claims judge, the judge would be required to forfeit\nher retirement annuity for the duration of her compensated service as an active\njudge.\nBETH NOLAN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n4 Thus, for the purposes o f the appointment issue considered here, whether the judge in question has expressed\nformally her willingness to accept reappointment within the statutory penod is relevant only as condition precedent\nto her taking senior status A judge who failed to so notify the President would be ineligible to receive a retirement\nannuity under \xc2\xa7 178, but nothing would prevent the President from reappointing the judge notwithstanding her failure\nto notify him\n\n213\n\n\x0c'


b"O ctober 23, 1979\n\n79-77\n\nMEMORANDUM OPINION FOR THE ACTING\nASSOCIATE ATTORNEY GENERAL\nSmall Business Administration and Community\nServices Administration\xe2\x80\x94Eligibility of Community\nDevelopment Corporations for Participation in\nCertain Government Procurement Programs (15\nU.S.C. \xc2\xa7 637(a), 42 U.S.C. \xc2\xa7 2985a)\n\nThis responds to your request for our opinion with respect to a question\nof statutory construction as to which there is disagreement between the\nSmall Business Administration (SBA) and the Community Services Ad\xc2\xad\nministration (CSA). The question is whether community development cor\xc2\xad\nporations (CDCs), which are financed by CSA, may participate in SBA\xe2\x80\x99s\nprogram to increase the use of small businesses as Government procure\xc2\xad\nment contractors. The issue arises because of an apparent conflict between\nthe legislation governing SBA and that governing CSA\xe2\x80\x99s activities.1 For\nthe reasons that follow, it is our opinion that the two statutes can be\nsatisfactorily reconciled in a manner that gives effect to Congress\xe2\x80\x99 intent\nto allow CDCs to participate in these SBA programs.\nThe statutes in question are \xc2\xa7 742(a)(2) of the Economic Opportunity\nAct, as amended, 42 U.S.C. \xc2\xa7 2985a(a)(2), and \xc2\xa7 8(a) of the Small Business\nAct, as amended, 15 U.S.C. \xc2\xa7 637(a). In order to participate in SBA\xe2\x80\x99s socalled \xe2\x80\x9c \xc2\xa7 8(a)\xe2\x80\x9d program, which is designed to assure that a greater share\nof Government procurement contracts are awarded to small businesses, an\n\n'W e understand that this issue is presently involved in litigation being handled by the Civil\nDivision. Delta Foundation, Inc., et at. v. Weaver, et al., Civ. No. 79-1662 (D .D .C .). In that\ncase, Electro National C orp., the wholly owned subsidiary o f a C D C (Delta Foundation,\nInc.), has claimed the right to participate in the SBA small business procurem ent program .\nWe have been inform ed that apart from the question o f the statutory propriety o f the cor\xc2\xad\nporation\xe2\x80\x99s participation because it is owned by a CDC, there is no other factor that would\nbar the corporation from participation.\n\n422\n\n\x0capplicant must be \xe2\x80\x9c socially and economically disadvantaged.\xe2\x80\x9d 15 U.S.C.\n\xc2\xa7 637(a)(1)(C). Such a concern is one\n(A) which is at least 51 per centum owned by one or more\nsocially and economically disadvantaged individuals; or\nin the case of any publicly owned business, at least 51 per\ncentum of the stock of which is owned by one or more so\xc2\xad\ncially and economically disadvantaged individuals; and\n(B) whose management and daily business operations are\ncontrolled by one or more of such individuals. [15\nU.S.C. \xc2\xa7 637(a)(4).]\nThis is the definition adopted by Congress in the SBA amendments of Oc\xc2\xad\ntober 24, 1978. By its terms, the definition is focused on directing\nassistance to individuals; this theme is confirmed in the legislative history\nof the SBA amendments.2\nSeveral days after the passage of the SBA amendments, Congress passed\namendments to the Economic Opportunity Act. In an amendment to\n\xc2\xa7 742(a)(2), approved November 2, 1978, Congress stated:\nWithin 90 days * * * the Administrator of the Small Business\nAdministration, after consultation with the Director [of the\nCSA], shall promulgate regulations to insure the availability to\ncommunity development corporations o f * * * programs\nunder \xc2\xa7 8(a) of the Small Business Act. [42 U.S.C. \xc2\xa7 2985a(a).]\nThe legislative history of this provision emphasizes the mandatory nature\nof the Small Business Administrator\xe2\x80\x99s responsibility to make available\n\xc2\xa7 8(a) programs to CDCs. For example, the Senate report states:\nAlthough the 1972 amendments to the Economic Opportunity\nAct specified that the Small Business Administration should\nprescribe such regulations as were necessary and appropriate to\ninsure the availability of Small Business Administration (SBA)\nprograms to CDC\xe2\x80\x99s, SBA has failed to issue any regulations and\nhas refused, either directly or indirectly, to make its programs\navailable to community development corporation enterprises.\nThe 1972 amendments were intended \xe2\x80\x9c to lead to the issuance\nof guidelines that will maximize the availability o f SBA programs\nto CDC\xe2\x80\x99s receiving financial assistance under the title VII\nprogram.\xe2\x80\x9d\nS. 2090 would revise the 1972 language to mandate that the\nSBA \xe2\x80\x9c promulgate regulations to insure the availability to com\xc2\xad\nmunity development corporations of such programs as shall fur\xc2\xad\nther the purposes of this title, including programs under section\n8(a) of the Small Business A ct.\xe2\x80\x9d SBA regulations enabling CDC\xe2\x80\x99s\nto participate in the procurement preference minority set aside\n\n2See, e.g., S. Rept. 1070, 95th Cong., 2d sess. 25 (1978); H . C onf. Rept. 1714, 95th C ong.,\n2d sess. 20-21 (1978).\n\n423\n\n\x0cprogram, should be issued immediately. [S. Rept. 892, 95th\nCong., 2d sess. 25 (1978); quotation concerning legislative intent\nfrom S. Rept. 792, 92d Cong., 2d sess. 40 (1972).]\nThe amendment was further explained in the Senate report as limiting\nSBA\xe2\x80\x99s discretion: \xe2\x80\x9c [l]anguage which indicated \xe2\x80\x98as may be necessary and\nappropriate\xe2\x80\x99 was deleted because it was cited by SBA as a reason for not\nissuing regulations.\xe2\x80\x9d Id. at 38. Congress, in enacting this provision antici\xc2\xad\npated action by the SBA alone to make the \xc2\xa7 8(a) program available to\nCDCs:\nThe amendment which establishes eligibility for Community\nDevelopment Corporations (CDC) for the Small Business Ad\xc2\xad\nministration Section 8(a) set-aside program will not require CSA\nmodification of its existing regulations and has little, if any, CSA\nregulatory impact. The amendment will, however, have a\nsubstantial favorable economic impact on the approximately\nfifty CDCs presently funded by CSA, since CDCs will be eligible\nfor the first time to participate in the federal procurement setaside program. [Id. at 29.]\nIn the light o f the clear direction to the SBA contained in \xc2\xa7 742(a)(2) and\nconfirmed by the legislative history, there is little room for an argument\nthat the SBA is unable to allow CDC participation in \xc2\xa7 8(a) programs. To\nthe extent that there is an argument it rests on the notion that a CDC (or\nwholly owned affiliate of a CDC) is by definition not an organization\n\xe2\x80\x9c owned\xe2\x80\x9d by individuals as required by the definition for \xe2\x80\x9c socially and\neconomically disadvantaged\xe2\x80\x9d organizations set forth above. A CDC is\neither \xe2\x80\x9c a nonprofit organization responsible to residents of the area it\nserves which is receiving financial assistance under part A of this.sub\xc2\xad\nchapter [VII],\xe2\x80\x9d or is \xe2\x80\x9c any organization more than 50 per centum of which\nis owned by such an organization, or otherwise controlled by such an\norganization, or designated by such an organization for the purpose of\nthis subchapter.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2981a.\nThe individual ownership requirement of \xc2\xa7 8(a) cannot be read to ex\xc2\xad\nclude CDCs from participation in the program. Congress must be pre\xc2\xad\nsumed to know that CDCs by definition are not more than 51 percent indi\xc2\xad\nvidually owned, yet it mandated their participation. Section 742 must,\ntherefore, be read to include control by the same individuals as the SBA\nAct is intended to benefit.3\nThis interpretation is compelled by the legislative history and does not\nrender either statute ineffective. C f , M orton v. Mancari, 417 U.S. 535,\n\n\xe2\x80\x99The CSA m akes the argum ent that ownership insofar as it means title cannot be frac\xc2\xad\ntionalized since one may either have absolute title or may share title in an undivided fashion,\nas in joint tenancy or tenancy in com m on. The CSA thus takes the position that the phrase\n\xe2\x80\x9c 51 per centum ow ned\xe2\x80\x9d must m ean a corporate or contractual arrangement under which 51\npercent control resides in socially and economically disadvantaged individuals. We need not\ndecide whether, in all cases, this is a reasonable interpretation o f the term \xe2\x80\x9c ownership\xe2\x80\x9d as\nused in \xc2\xa7 8(a).\n\n424\n\n\x0c551 (1974). CDCs assist in the development of similar businesses con\xc2\xad\nducted by similar people as does the SBA \xc2\xa7 8(a) program. Furthermore,\nthe 51 percent rule in the SBA Act was intended particularly to get at the\nquite different problem of use of eligible disadvantaged individuals as\n\xe2\x80\x9c fronts\xe2\x80\x9d to obtain assistance for otherwise ineligible businesses. S. Rept.\n95-1070, 95th Cong., 2d sess. 16 (1978).\nThe Small Business Administrator, pursuant to \xc2\xa7 742(a)(2), has the\nobligation to confer with the Director of CSA and to prescribe regulations\nto effectuate these legal conclusions and thus to insure the availability to\nCDCs of \xc2\xa7 8(a) programs. This must be done expeditiously, as the time\nperiod for compliance specified in the statute has already passed.\nLarry A . Ham m o nd\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n425\n\n\x0c"