b'Assertion of Executive Privilege Concerning the Dismissal\nand Replacement of U.S. Attorneys\nExecutive privilege may properly be asserted over the documents and testimony concerning the\ndismissal and replacement of U.S. Attorneys that have been subpoenaed by congressional committees.\n\nJune 27, 2007\n\nTHE PRESIDENT\nTHE WHITE HOUSE\nDear Mr. President:\nThe Senate Committee on the Judiciary and the House Committee on the Judiciary recently issued five subpoenas in connection with their inquiries into the\nresignation of several U.S. Attorneys in 2006. Broadly speaking, four of the five\nsubpoenas seek documents in the custody of current or former White House\nofficials (\xe2\x80\x9cWhite House documents\xe2\x80\x9d) concerning the dismissal and replacement of\nthe U.S. Attorneys. In addition, two of the five subpoenas demand testimony about\nthese matters from two former White House officials, Harriet Miers, former\nCounsel to the President, and Sara Taylor, former Deputy Assistant to the\nPresident and Director of Political Affairs.\nYou have requested my legal advice as to whether you may assert executive\nprivilege with respect to the subpoenaed documents and testimony concerning the\ncategories of information described in this letter. It is my considered legal\njudgment that you may assert executive privilege over the subpoenaed documents\nand testimony.\nI.\nThe documents that the Office of the Counsel to the President has identified as\nresponsive to the subpoenas fall into three broad categories related to the possible\ndismissal and replacement of U.S. Attorneys, including congressional and media\ninquiries about the dismissals: (1) internal White House communications; (2)\ncommunications by White House officials with individuals outside the Executive\nBranch, including with individuals in the Legislative Branch; and (3) communications between White House officials and Department of Justice officials. The\nCommittees\xe2\x80\x99 subpoenas also seek testimony from Ms. Miers and Ms. Taylor\nconcerning the same subject matters, and the assertion of privilege with respect to\nsuch testimony requires the same legal analysis.\nThe Office of Legal Counsel of the Department of Justice has reviewed the\ndocuments identified by the Counsel to the President as responsive to the subpoenas and is satisfied that the documents fall within the scope of executive\n\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nprivilege. The Office further believes that Congress\xe2\x80\x99s interests in the documents\nand related testimony would not be sufficient to override an executive privilege\nclaim. For the reasons discussed below, I concur with both assessments.\nA.\nThe initial category of subpoenaed documents and testimony consists of internal White House communications about the possible dismissal and replacement of\nU.S. Attorneys. Among other things, these communications discuss the wisdom of\nsuch a proposal, specific U.S. Attorneys who could be removed, potential\nreplacement candidates, and possible responses to congressional and media\ninquiries about the dismissals. These types of internal deliberations among White\nHouse officials fall squarely within the scope of executive privilege. One of the\nunderlying purposes of the privilege is to promote sound decisionmaking by\nensuring that senior government officials and their advisers speak frankly and\ncandidly during the decisionmaking process. As the Supreme Court has explained,\n\xe2\x80\x9c[a] President and those who assist him must be free to explore alternatives in the\nprocess of shaping policies and to do so in a way many would be unwilling to\nexpress except privately.\xe2\x80\x9d United States v. Nixon, 418 U.S. 683, 708 (1974); see\nalso Assertion of Executive Privilege with Respect to Prosecutorial Documents, 25\nOp. O.L.C. 1, 2 (2001) (\xe2\x80\x9cThe Constitution clearly gives the President the power to\nprotect the confidentiality of executive branch deliberations.\xe2\x80\x9d); Assertion of\nExecutive Privilege With Respect to Clemency Decision, 23 Op. O.L.C. 1, 2 (1999)\n(opinion of Attorney General Janet Reno) (\xe2\x80\x9cClemency Decision\xe2\x80\x9d) (\xe2\x80\x9c[N]ot only\ndoes executive privilege apply to confidential communications to the President,\nbut also to \xe2\x80\x98communications between high Government officials and those who\nadvise and assist them in the performance of their manifold duties.\xe2\x80\x99\xe2\x80\x9d) (quoting\nNixon, 418 U.S. at 705). These confidentiality interests are particularly strong\nwhere, as here, the communications may implicate a \xe2\x80\x9cquintessential and nondelegable Presidential power,\xe2\x80\x9d such as the authority to nominate or to remove U.S.\nAttorneys. In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997); Clemency\nDecision, 23 Op. O.L.C. at 2\xe2\x80\x933 (finding that executive privilege protected\nDepartment and White House deliberations related to decision to grant clemency).\nUnder D.C. Circuit precedent, a congressional committee may not overcome an\nassertion of executive privilege unless it establishes that the documents and\ninformation are \xe2\x80\x9cdemonstrably critical to the responsible fulfillment of the\nCommittee\xe2\x80\x99s functions.\xe2\x80\x9d Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). And those functions\nmust be in furtherance of Congress\xe2\x80\x99s legitimate legislative responsibilities. See\nMcGrain v. Daugherty, 273 U.S. 135, 160 (1927) (Congress has oversight\nauthority \xe2\x80\x9cto enable it efficiently to exercise a legislative function belonging to it\nunder the Constitution\xe2\x80\x9d).\n\n2\n\n\x0cAssertion of Executive Privilege Concerning Dismissal of U.S. Attorneys\n\nAs a threshold matter, it is not at all clear that internal White House communications about the possible dismissal and replacement of U.S. Attorneys fall within\nthe scope of McGrain and its progeny. The Supreme Court has held that Congress\xe2\x80\x99s oversight powers do not reach \xe2\x80\x9cmatters which are within the exclusive\nprovince of one of the other branches of the Government.\xe2\x80\x9d Barenblatt v. United\nStates, 360 U.S. 109, 112 (1959). The Senate has the authority to approve or reject\nthe appointment of officers whose appointment by law requires the advice and\nconsent of the Senate (which has been the case for U.S. Attorneys since the\nfounding of the Republic), but it is for the President to decide whom to nominate\nto such positions and whether to remove such officers once appointed. Though the\nPresident traditionally consults with members of Congress about the selection of\npotential U.S. Attorney nominees as a matter of courtesy or in an effort to secure\ntheir confirmation, that does not confer upon Congress authority to inquire into the\ndeliberations of the President with respect to the exercise of his power to remove\nor nominate a U.S. Attorney. 1 Consequently, there is reason to question whether\nCongress has oversight authority to investigate deliberations by White House\nofficials concerning proposals to dismiss and replace U.S. Attorneys, because such\ndeliberations necessarily relate to the potential exercise by the President of an\nauthority assigned to him alone. See Clemency Decision, 23 Op. O.L.C. at 3\xe2\x80\x934\n(\xe2\x80\x9c[I]t appears that Congress\xe2\x80\x99 oversight authority does not extend to the process\nemployed in connection with a particular clemency decision, to the materials\ngenerated or the discussions that took place as part of that process, or to the advice\nor views the President received in connection with a clemency decision [because\nthe decision to grant clemency is an exclusive Executive Branch function].\xe2\x80\x9d);\nScope of Congressional Oversight and Investigative Power With Respect to the\nExecutive Branch, 9 Op. O.L.C. 60, 62 (1985) (congressional oversight authority\ndoes not extend to \xe2\x80\x9cfunctions fall[ing] within the Executive\xe2\x80\x99s exclusive domain\xe2\x80\x9d).\nIn any event, even if the Committees have oversight authority, there is no doubt\nthat the materials sought qualify for the privilege and the Committees have not\ndemonstrated that their interests justify overriding a claim of executive privilege as\nto the matters at issue. The House Committee, for instance, asserts in its letter\naccompanying the subpoenas that \xe2\x80\x9c[c]ommunications among the White House\nstaff involved in the U.S. Attorney replacement plan are obviously of paramount\nimportance to any understanding of how and why these U.S. Attorneys were\n1\nSee, e.g., Pub. Citizen v. Dep\xe2\x80\x99t of Justice, 491 U.S. 440, 483 (1989) (Kennedy, J., concurring)\n(\xe2\x80\x9c[T]he Clause divides the appointment power into two separate spheres: the President\xe2\x80\x99s power to\n\xe2\x80\x98nominate,\xe2\x80\x99 and the Senate\xe2\x80\x99s power to give or withhold its \xe2\x80\x98Advice and Consent.\xe2\x80\x99 No role whatsoever is\ngiven either to the Senate or to Congress as a whole in the process of choosing the person who will be\nnominated for [the] appointment.\xe2\x80\x9d); Myers v. United States, 272 U.S. 52, 122 (1926) (\xe2\x80\x9cThe power of\nremoval is incident to the power of appointment, not to the power of advising and consenting to\nappointment, and when the grant of the executive power is enforced by the express mandate to take\ncare that the laws be faithfully executed, it emphasizes the necessity for including within the executive\npower as conferred the exclusive power of removal.\xe2\x80\x9d).\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nselected to be fired.\xe2\x80\x9d Letter for Fred F. Fielding, Counsel to the President, from\nJohn Conyers, Jr., Chairman, House Judiciary Committee at 2 (June 13, 2007). But\nthe Committees never explain how or why this information is \xe2\x80\x9cdemonstrably\ncritical\xe2\x80\x9d to any \xe2\x80\x9clegislative judgments\xe2\x80\x9d Congress might be able to exercise in the\nU.S. Attorney matter. Senate Select Comm., 498 F.2d at 732. Broad, generalized\nassertions that the requested materials are of public import are simply insufficient\nunder the \xe2\x80\x9cdemonstrably critical\xe2\x80\x9d standard. Under Senate Select Committee, to\noverride a privilege claim the Committees must \xe2\x80\x9cpoint[] to . . . specific legislative\ndecisions that cannot responsibly be made without access to [the privileged]\nmaterials.\xe2\x80\x9d Id. at 733.\nMoreover, any legitimate oversight interest the Committees might have in\ninternal White House communications about the proposal is sharply reduced by\nthe thousands of documents and dozens of hours of interviews and testimony\nalready provided to the Committees by the Department of Justice as part of its\nextraordinary effort at accommodation. 2 This information has given the Committees extraordinary\xe2\x80\x94and indeed, unprecedented\xe2\x80\x94insight into the Department\xe2\x80\x99s\ndecision to request the U.S. Attorney resignations, including the role of White\nHouse officials in the process. See, e.g., History of Refusals by Executive Branch\nOfficials to Provide Information Demanded by Congress, 6 Op. O.L.C. 751, 758\xe2\x80\x93\n59, 767 (1982) (documenting refusals by Presidents Jackson, Tyler, and Cleveland\n2\nDuring the past three months, the Department has released or made available for review to the\nCommittees approximately 8,500 pages of documents concerning the U.S. Attorney resignations. The\nDepartment has included in its productions many sensitive, deliberative documents related to the\nresignation requests, including e-mails and other communications with White House officials. The\nCommittees\xe2\x80\x99 staffs have also interviewed, at length and on the record, a number of senior Department\nofficials, including, among others, the Deputy Attorney General, the Acting Associate Attorney\nGeneral, the Attorney General\xe2\x80\x99s former chief of staff, the Deputy Attorney General\xe2\x80\x99s chief of staff, and\ntwo former Directors of the Executive Office for U.S. Attorneys. During these interviews, the\nCommittees\xe2\x80\x99 staffs explored in great depth all aspects of the decision to request the U.S. Attorney\nresignations, including the role of White House officials in the decisionmaking process. In addition, the\nAttorney General, the Deputy Attorney General, the Principal Associate Deputy Attorney General, the\nAttorney General\xe2\x80\x99s former chief of staff, and the Department\xe2\x80\x99s former White House Liaison have\ntestified before one or both of the Committees about the terminations and explained, under oath, their\nunderstanding of such involvement.\nThe President has also made significant efforts to accommodate the Committees\xe2\x80\x99 needs. More than\nthree months ago, the Counsel to the President proposed to make senior White House officials,\nincluding Ms. Miers, available for informal interviews about \xe2\x80\x9c(a) communications between the White\nHouse and persons outside the White House concerning the request for resignations of the U.S.\nAttorneys in question; and (b) communications between the White House and Members of Congress\nconcerning those requests,\xe2\x80\x9d and he offered to give the Committees access to White House documents\non the same subjects. Letter for Patrick Leahy, U.S. Senate, et al., from Fred F. Fielding, Counsel to the\nPresident at 1\xe2\x80\x932 (Mar. 20, 2007). The Committees declined this offer. The Counsel to the President has\nsince reiterated this offer of accommodation but to no avail. See Letter for Patrick Leahy, U.S. Senate,\nand John Conyers, Jr., U.S. House of Representatives, from Fred F. Fielding, Counsel to the President\nat 1 (Apr. 12, 2007); Letter for Patrick Leahy, U.S. Senate, John Conyers, Jr., U.S. House of\nRepresentatives, and Linda T. Sanchez, U.S. House of Representatives, from Fred F. Fielding, Counsel\nto the President at 1\xe2\x80\x932 (June 7, 2007).\n\n4\n\n\x0cAssertion of Executive Privilege Concerning Dismissal of U.S. Attorneys\n\nto provide information related to the decision to remove Executive Branch\nofficials, including a U.S. Attorney).\nIn a letter accompanying the subpoenas, the House Committee references the\nalleged \xe2\x80\x9cwritten misstatements\xe2\x80\x9d and \xe2\x80\x9cfalse statements\xe2\x80\x9d provided by the Department to the Committees about the U.S. Attorney dismissals. See Letter for Fred F.\nFielding, Counsel to the President, from John Conyers, Jr., Chairman, House\nJudiciary Committee at 2 (June 13, 2007). The Department has recognized the\nCommittees\xe2\x80\x99 interest in investigating the extent to which Department officials may\nhave provided inaccurate or incomplete information to Congress. This interest\ndoes not, however, justify the Committees\xe2\x80\x99 demand for White House documents\nand information about the U.S. Attorney resignations. Officials in the Department,\nnot officials in the White House, presented the challenged statements, and as\nnoted, the Department has provided unprecedented information to Congress\nconcerning, inter alia, the process that led to the Department\xe2\x80\x99s statements. The\nCommittees\xe2\x80\x99 legitimate oversight interests therefore have already been addressed\nby the Department, which has sought to provide the Committees with all documents related to the preparation of any inaccurate information given to Congress.\nGiven the amount of information the Committees already possess about the\nDepartment\xe2\x80\x99s decision to remove the U.S. Attorneys (including the involvement of\nWhite House officials), there would be little additional legislative purpose served\nby revealing internal White House communications about the U.S. Attorney\nmatter, and, in any event, none that would outweigh the President\xe2\x80\x99s interest in\nmaintaining the confidentiality of such internal deliberations. See Senate Select\nComm., 498 F.2d at 732\xe2\x80\x9333 (explaining that a congressional committee may not\nobtain information protected by executive privilege if that information is available\nthrough non-privileged sources). Consequently, I do not believe that the Committees have shown a \xe2\x80\x9cdemonstrably critical\xe2\x80\x9d need for internal White House communications on this matter.\nB.\nFor many of the same reasons, I believe that communications between White\nHouse officials and individuals outside the Executive Branch, including with\nindividuals in the Legislative Branch, concerning the possible dismissal and\nreplacement of U.S. Attorneys, and possible responses to congressional and media\ninquiries about the dismissals, fall within the scope of executive privilege. Courts\nhave long recognized the importance of information gathering in presidential\ndecisionmaking. See, e.g., In re Sealed Case, 121 F.3d at 751\xe2\x80\x9352 (describing role\nof investigation and information collection in presidential decisionmaking).\nNaturally, in order for the President and his advisers to make an informed\ndecision, presidential aides must sometimes solicit information from individuals\noutside the White House and the Executive Branch. This need is particularly\nstrong when the decision involved is whether to remove political appointees, such\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nas U.S. Attorneys, who serve in local districts spread throughout the United States.\nIn those situations, the President and his advisers will be fully informed only if\nthey solicit and receive advice from a range of individuals. Yet the President\xe2\x80\x99s\nability to obtain such information often depends on the provider\xe2\x80\x99s understanding\nthat his frank and candid views will remain confidential. See Nixon, 418 U.S. at\n705 (\xe2\x80\x9cHuman experience teaches that those who expect public dissemination of\ntheir remarks may well temper candor with a concern for appearances and for their\nown interests to the detriment of the decisionmaking process.\xe2\x80\x9d); In re Sealed Case,\n121 F.3d at 751 (\xe2\x80\x9cIn many instances, potential exposure of the information in the\npossession of an adviser can be as inhibiting as exposure of the actual advice she\ngave to the President. Without protection of her sources of information, an adviser\nmay be tempted to forego obtaining comprehensive briefings or initiating deep and\nintense probing for fear of losing deniability.\xe2\x80\x9d).\nThat the communications involve individuals outside the Executive Branch\ndoes not undermine the President\xe2\x80\x99s confidentiality interests. The communications\nat issue occurred with the understanding that they would be held in confidence,\nand they related to decisionmaking regarding U.S. Attorney removals or replacements or responding to congressional or media inquiries about the U.S. Attorney\nmatter. Under these circumstances, the communications retain their confidential\nand Executive Branch character and remain protected. See In re Sealed Case, 121\nF.3d at 752 (\xe2\x80\x9cGiven the need to provide sufficient elbow room for advisers to\nobtain information from all knowledgeable sources, the [presidential communications component of executive] privilege must apply both to communications which\nthese advisers solicited and received from others as well as those they authored\nthemselves.\xe2\x80\x9d). 3\nAgain, the Committees offer no compelling explanation or analysis as to why\naccess to confidential communications between White House officials and\nindividuals outside the Executive Branch is \xe2\x80\x9cdemonstrably critical to the responsible fulfillment of the [Committees\xe2\x80\x99] functions.\xe2\x80\x9d Senate Select Comm., 498 F.2d at\n731. Absent such a showing, the Committees may not override an executive\nprivilege claim.\nC.\nThe final category of documents and testimony concerns communications\nbetween the Department of Justice and the White House concerning proposals to\ndismiss and replace U.S. Attorneys and possible responses to congressional and\nmedia inquiries about the U.S. Attorney resignations. These communications are\n3\nMoreover, the Department has previously conveyed to the Committees its concern that there\nwould be a substantial inhibiting effect on future informal confidential communications between\nExecutive Branch and Legislative Branch representatives if such communications were to be produced\nin the normal course of congressional oversight.\n\n6\n\n\x0cAssertion of Executive Privilege Concerning Dismissal of U.S. Attorneys\n\ndeliberative and clearly fall within the scope of executive privilege. 4 See supra\np. 2. In this case, however, the Department has already disclosed to Congress a\nsubstantial amount of documents and information related to White House communications about the U.S. Attorney matter. Consequently, in assessing whether it\nwould be legally permissible to assert executive privilege, it is useful to divide this\ncategory into three subcategories, each with slightly different considerations: (1)\ndocuments and testimony related to communications between the Department and\nWhite House officials that have not already been disclosed by the Department; (2)\ndocuments concerning White House-Department communications previously\ndisclosed to the Committees by the Department; and (3) testimony from current or\nformer White House officials (such as the testimony sought from Ms. Miers or Ms.\nTaylor) about previously disclosed White House-Department communications.\nAfter carefully considering the matter, I believe there is a strong legal basis for\nasserting executive privilege over each of these subcategories.\nThe President\xe2\x80\x99s interest in protecting the confidentiality of documents and\ninformation about undisclosed White House-Department communications is\npowerful. Most, if not all, of these communications concern either potential\nreplacements for the dismissed U.S. Attorneys or possible responses to inquiries\nfrom Congress and the media about the U.S. Attorney resignations. As discussed\nabove, the President\xe2\x80\x99s need to protect deliberations about the selection of U.S.\nAttorneys is compelling, particularly given Congress\xe2\x80\x99s lack of legislative authority\nover the nomination or replacement of U.S. Attorneys. See In re Sealed Case, 121\nF.3d at 751\xe2\x80\x9352. The President also has undeniable confidentiality interests in\ndiscussions between White House and Department officials over how to respond\nto congressional and media inquiries about the U.S. Attorney matter. As Attorney\nGeneral Janet Reno advised the President in 1996, the ability of the Office of the\nCounsel to the President to assist the President in responding to investigations\n\xe2\x80\x9cwould be significantly impaired\xe2\x80\x9d if a congressional committee could review\n\xe2\x80\x9cconfidential documents . . . prepared in order to assist the President and his staff\nin responding to an investigation by the [committee] seeking the documents.\xe2\x80\x9d\nAssertion of Executive Privilege Regarding White House Counsel\xe2\x80\x99s Office\nDocuments, 20 Op. O.L.C. 2, 3 (1996). Despite extensive communications with\nofficials at the Department and the White House, the Committees have yet to\narticulate any \xe2\x80\x9cdemonstrably critical\xe2\x80\x9d oversight interest that would justify\noverriding these compelling confidentiality concerns.\nThere are also legitimate reasons to assert executive privilege over White\nHouse documents reflecting White House-Department communications that have\nbeen previously disclosed to the Committees by the Department. As discussed,\n4\nTo the extent they exist, White House communications approving the Department\xe2\x80\x99s actions by or\non behalf of the President would receive particularly strong protection under executive privilege. See,\ne.g., In re Sealed Case, 121 F.3d at 752\xe2\x80\x9353 (describing heightened protection provided to presidential\ncommunications).\n\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nthese documents are deliberative in nature and clearly fall within the scope of\nexecutive privilege. The Department\xe2\x80\x99s accommodation with respect to some White\nHouse-Department communications does not constitute a waiver and does not\npreclude the President from asserting executive privilege with respect to White\nHouse materials or testimony concerning such communications. The D.C. Circuit\nhas recognized that each branch has a \xe2\x80\x9cconstitutional mandate to seek optimal\naccommodation\xe2\x80\x9d of each other\xe2\x80\x99s legitimate interests. United States v. AT&T Co.,\n567 F.2d 121, 127 (D.C. Cir. 1977). If the Department\xe2\x80\x99s provision of documents\nand information to Congress, as part of the accommodation process, eliminated the\nPresident\xe2\x80\x99s ability to assert privilege over White House documents and information concerning those same communications, then the Executive Branch would\nbe hampered, if not prevented, from engaging in future accommodations. Thus, in\norder to preserve the constitutional process of interbranch accommodation, the\nPresident may claim privilege over documents and information concerning the\ncommunications that the Department of Justice has previously disclosed to the\nCommittees. Indeed, the relevant legal principles should and do encourage, rather\nthan punish, such accommodation by recognizing that Congress\xe2\x80\x99s need for such\ndocuments is reduced to the extent similar materials have been provided voluntarily as part of the accommodation process.\nHere, the Committees\xe2\x80\x99 need for White House documents concerning these\ncommunications is weak. The Committees already possess the relevant communications, and it is well established that Congress may not override executive\nprivilege to obtain materials that are cumulative or that could be obtained from an\nalternative source. See Senate Select Comm., 498 F.2d at 732\xe2\x80\x9333 (holding public\nrelease of redacted audio tape transcripts \xe2\x80\x9csubstantially undermined\xe2\x80\x9d any legislative need for tapes themselves); Clemency Decision, 23 Op. O.L.C. at 3\xe2\x80\x934 (finding\nthat documents were not demonstrably critical where Congress could obtain\nrelevant information \xe2\x80\x9cthrough non-privileged documents and testimony\xe2\x80\x9d).\nAccordingly, the Committees do not have a \xe2\x80\x9cdemonstrably critical\xe2\x80\x9d need to collect\nWhite House documents reflecting previously disclosed White House-Department\ncommunications.\nFinally, the Committees have also failed to establish the requisite need for\ntestimony from current or former White House officials about previously disclosed\nWhite House-Department communications. Congressional interest in investigating\nthe replacement of U.S. Attorneys clearly falls outside its core constitutional\nresponsibilities, and any legitimate interest Congress may have in the disclosed\ncommunications has been satisfied by the Department\xe2\x80\x99s extraordinary accommodation involving the extensive production of documents to the Committees,\ninterviews, and hearing testimony concerning these communications. As the D.C.\nCircuit has explained, because \xe2\x80\x9clegislative judgments normally depend more on\nthe predicted consequences of proposed legislative actions and their political\nacceptability,\xe2\x80\x9d Congress will rarely need or be entitled to a \xe2\x80\x9cprecise reconstruction\nof past events\xe2\x80\x9d to carry out its legislative responsibilities. Senate Select Comm.,\n\n8\n\n\x0cAssertion of Executive Privilege Concerning Dismissal of U.S. Attorneys\n\n498 F.2d at 732. 5 On the other hand, the White House has very legitimate interests\nin protecting the confidentiality of this information because it would be very\ndifficult, if not impossible, for current or former White House officials testifying\nabout the disclosed communications to separate in their minds knowledge that is\nderived from the Department\xe2\x80\x99s disclosures from knowledge that is derived from\nother privileged sources, such as internal White House communications. Consequently, given the President\xe2\x80\x99s strong confidentiality interests and the Committees\xe2\x80\x99\nlimited legislative needs, I believe that White House information about previously\ndisclosed White House-Department communications may properly be subject to an\nexecutive privilege claim.\nII.\nIn sum, I believe that executive privilege may properly be asserted with respect\nto the subpoenaed documents and testimony as described above.\nPAUL D. CLEMENT\nSolicitor General & Acting Attorney General\n\n5\nSee also Senate Select Comm., 498 F.2d at 732 (explaining that Congress \xe2\x80\x9cfrequently legislates on\nthe basis of conflicting information provided in its hearings\xe2\x80\x9d); Congressional Requests for Confidential\nExecutive Branch Information, 13 Op. O.L.C. 153, 159 (1989) (\xe2\x80\x9cCongress will seldom have any legitimate legislative interest in knowing the precise predecisional positions and statements of particular\nexecutive branch officials.\xe2\x80\x9d).\n\n9\n\n\x0c'


b'Miscellaneous Receipts Act Exception for Veterans\xe2\x80\x99 Health\nCare Recoveries\nT he Veterans R econciliation Act o f 1997 creates an exception to the M iscellaneous Receipts A ct to\nthe extent that a recovery or collection under the Federal M edical Care Recovery Act is based\non m edical care o r services furnished under chapter 17 o f title 38, United S tates Code, and thus\nallow s the d eposit o f such a recovery or collection in the D epartm ent of V eterans A ffairs M edical\nC are C ollections Fund.\n\nDecember 3, 1998\nM e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l\nC iv il D iv is io n\n\nThis responds to your request of May 28, 1998, that we examine whether certain\nfunds received as part of a settlement under the Federal Medical Care Recovery\nAct, Pub. L. No. 87-693, 76 Stat. 593 (1962) ( \xe2\x80\x9c MCRA\xe2\x80\x9d ), codified as amended\nat 42 U.S.C. \xc2\xa7\xc2\xa72651-2653 (1994 & Supp. II 1996), may be transferred to the\nDepartment of Veterans Affairs Medical Care Collections Fund (\xe2\x80\x9c VA Fund\xe2\x80\x9d )\nnotwithstanding the general requirement contained in the Miscellaneous Receipts\nAct (\xe2\x80\x9c MRA\xe2\x80\x9d ) that \xe2\x80\x9c an official or agent of the Government receiving money\nfor the Government from any source shall deposit the money in the Treasury as\nsoon as practicable without deduction for any charge or claim,\xe2\x80\x9d 31 U.S.C.\n\xc2\xa7 3302(b) (1994). For the reasons outlined below, it is our view that the portion\nof the settlement amount that was calculated to compensate the Government for\nits claims under MCRA for medical care or services furnished under chapter 17\nof Title 38, which governs certain veterans\xe2\x80\x99 health benefits, may be transferred\nto the VA Fund by virtue of the Veterans Reconciliation Act of 1997, Pub. L.\nNo. 105-33, \xc2\xa7 8023(a)(1), 111 Stat. 251, 665, codified as amended at 38 U.S.C.\n\xc2\xa7 1729A (Supp. IV 1998), which creates an exception to the MRA \xe2\x80\x9c to the extent\nthat a recovery or collection under . . . [MCRA] is based on medical care or\nservices furnished under this chapter [i.e. Chapter 17 of Title 38].\xe2\x80\x9d 38 U.S.C.\n\xc2\xa7 1729A(b)(6). Because the information that you have provided does not allow\nus to determine the amount of the settlement that was intended to compensate\nthe federal government for its claims under MCRA, however, we are unable to\ngive any more specific guidance on this issue.1\nI. Settlement Background\nIn 1993, numerous tort actions brought in federal district courts throughout the\ncountry by persons with hemophilia against manufacturers of blood products were\ncentralized as Multidistrict Litigation No. 986 before Judge Grady in the Northern\n1We have no! been asked to address any other questions regarding this settlement\n\n251\n\n\x0cOpinions of the O ffice o f Legal Counsel in Volume 22\n\nDistrict o f Illinois. In these cases, individuals with hemophilia who contracted\nthe HIV virus, and representatives of the estates of such individuals who have\ndied, sued several companies who extracted the blood proteins that hemophiliacs\nlack (known as Factors VIE and IX ) from donated blood and provided these pro\xc2\xad\nteins in the form o f \xe2\x80\x9c factor concentrates\xe2\x80\x9d to hemophiliacs for injection. In addi\xc2\xad\ntion to suing these \xe2\x80\x9c Fractionaters,\xe2\x80\x9d as the companies are known based on the\nmanufacturing process involved, plaintiffs also sued the National Hemophilia\nFoundation and individual health care providers.2\nAlthough the United States chose not to intervene in the suits, it also had poten\xc2\xad\ntial claims against the Fractionaters, including those under MCRA based on the\nprovision of certain health care to veterans.3 MCRA provides a mechanism for\nthe recoupment of certain medical costs and provides in relevant part:\nIn any case in which the United States is authorized or required\nby law to furnish or pay for hospital, medical, surgical, or dental\ncare and treatment . . . to a person who is injured or suffers a\ndisease . . . under circumstances creating a tort liability upon some\nthird person . . . to pay damages therefor, the United States shall\nhave a right to recover (independent o f the rights of the injured\nor diseased person) from said third person, or that person\xe2\x80\x99s insurer,\nthe reasonable value of the care and treatment so furnished, to be\nfurnished, paid for, or to be paid for and shall, as to this right be\nsubrogated to any right or claim that the injured or diseased person\n. . . [or] . . . estate . . . has against such third person to the extent\nof the reasonable value of the care and treatment so furnished, to\nbe furnished, paid for, or to be paid for.\n42 U.S.C. \xc2\xa7 2 6 5 1(a).\nThe Fractionaters commenced negotiations o f a global settlement of the claims\no f the class m em bers4 and agreed to pay $100,000 for each approved claim, as\nwell as a settlement with major private health care insurers, whom they agreed\n2 See In re \xe2\x80\x9cFactor VIII o r IX Concentrate B lood Products," Product Liab. Litig., 853 F. Supp 454 (Judicial\nPanel on M ultidistnct Litigation 1993), Wadleigh v. Rhone-Poulenc Rorer, Inc., 157 F R .D 410 (N.D 111 1994),\nr e v \xe2\x80\x99d by order o f mandamus, In the M atter of Rhone-Poulenc Rorer I n c , 51 F 3d 1293 (7th C ir 1995), and cert,\ndenied, 516 U.S. 867 (1995); In re Factor VIII o r IX Concentrate Blood Products Utig., 169 F.R.D 632 (N D\n111 1996)\n3 The draft memorandum from the Torts Branch to then-Acting Associate Attorney General John C Dwyer also\ndiscusses claim s (and potentially applicable recoupment provisions regarding claims) based on the provision of health\ncare services to governm ent employees and their dependents under the Federal Employees Health Benefits Program\nas well as to individuals generally through the M edicare, Medicaid, and Indian Health Service programs. See Memo\xc2\xad\nrandum for John C. Dwyer, Acting Associate Attorney General, from Frank W Hunger, Assistant Attorney General,\nCivil Division, Re. Affirm ative Claims fo r Reimbursement o f Federally-Funded Health Care Provided to Persons\nwith Hemophilia Infected with H IV (undated draft memorandum)\n4 At the request o f the parties, Judge Grady approved a class specifically for settlement purposes after the Seventh\nCircuit had reversed Judge G rady\xe2\x80\x99s p n o r certification o f a class for purposes of a trial. See In the Matter o f RhonePoulenc Rorer Inc., 51 F 3d at 1294-1304\n\n252\n\n\x0cMiscellaneous Receipts Act Exception fo r Veterans\xe2\x80\x99 Health Care Recoveries\n\nto pay ten cents per insured life in exchange for full release of all reimbursement\nand subrogation claims for recovery of costs of care or treatment o f class members\narising from use of factor concentrates.\nThe Fractionaters also approached the federal government with an offer to settle\nany claims of the United States based on the provision of health care to hemo\xc2\xad\nphiliacs, including veterans, who contracted the HIV virus. The Torts Branch, in\ncooperation with the respective agencies responsible for the health care services\ninvolved, entered into an out-of-court settlement with the Fractionaters, under\nwhich the latter paid the United States ten cents per federal health care system\nbeneficiary and released the United States from all claims and actions arising out\nof, or related to, the use of factor concentrates by claimants. In exchange, the\nUnited States released the Fractionaters from all claims for reimbursement of med\xc2\xad\nical expenses, all claims and causes of action under certain civil fraud statutes,\nand common law contribution and indemnity rights related to Federal Tort Claims\nAct cases brought against the United States. See Settlement Agreement ^1 A &\nB .l-2 .\nThe settlement figure was calculated based on agency estimates of the numbers\nof persons entitled to federally subsidized health care in each o f the federal pro\xc2\xad\ngrams that the Torts Branch believed had potential claims of reimbursement\nagainst the Fractionaters. The total number of covered persons was estimated at\n121,881,000, which included 25,881,000 veterans, yielding a final settlement\namount of $12,188,100.5 The Torts Branch entered into an out-of-court settlement\nthat was conditioned on Judge Grady\xe2\x80\x99s entering a global settlement in the private\nlitigation.\nOn May 8, 1997, Judge Grady entered a Final Order and Judgment approving\na global settlement of the multidistrict litigation, and on August 15, 1997, the\nTorts Branch received four checks for a total of $12,188,100, which were depos\xc2\xad\nited in the Treasury on August 19, 1997.\nOn March 25, 1998, the Department of Veterans Affairs requested that the\namount of $2,510,457 (which represents the settlement that was calculated based\non the veteran population of 25,881,000, i.e. $2,558,100, less the Department of\nJustice\xe2\x80\x99s 3% collection fee)6 be deposited in the VA Fund pursuant to the Vet\xc2\xad\nerans Reconciliation Act, 38 U.S.C. \xc2\xa7 1729A.\n\n5 Agency estimates of covered individuals in the other programs that the Torts Branch identified as having potential\nclaims against the Fractionaters were as follows: Medicare (38,600,000), Medicaid (38,700,000), Indian Health Serv\xc2\xad\nices (1,500,000), Federal Employees Health Benefits Program (9,000,000), Civilian Health and Medical Program\nof the Uniformed Services (5,300,000), and Department o f Defense (2,900,000).\n6 Pub L No. 103-121, \xc2\xa7108, 107 Stat 1153, 1164 (1993) provides* \xe2\x80\x9c Notwithstanding 31 U.S.C 3302 or any\nother statute affecting the crediting of collections, the Attorney General may credit, as an offsetting collection, to\nthe Department o f Justice Working Capital Fund, for fiscal year 1994 and thereafter, up to three percent of all\namounts collected pursuant to civil debt collection litigation activities of the Department of Justice \xe2\x80\x9d\n\n253\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nII. Receipt o f Payments\nAs a general matter, the Miscellaneous Receipts Act requires that \xe2\x80\x9c [e]xcept\nas provided in \xc2\xa7 3718(b) of this title, an official or agent of the Government\nreceiving money for the Government from any source shall deposit the money\nin the Treasury as soon as practicable without deduction for any charge or claim.\xe2\x80\x9d\n31 U.S.C. \xc2\xa7 3302(b). In addition to cases covered by the express exception in\n\xc2\xa7 3718(b), which relates to payments to private counsel retained to assist in the\npursuit of claims, the MRA generally does not govern in two situations: first,\nwhere an agency has statutory authority to direct funds elsewhere, and second,\nwhen receipts qualify as \xe2\x80\x9c repayments\xe2\x80\x9d to an appropriation. See generally 2 Office\nof the General Counsel, United States General Accounting Office, Principles of\nFederal Appropriations Law 6-108 (2d ed. 1992).7\nIn 1972 the Comptroller General opined with regard to MCRA (as it existed\nthen), that \xe2\x80\x9c [t]his Act does not specify the disposition to be made of monies\ncollected from third party tortfeasors and, consequently, unless a different disposi\xc2\xad\ntion is otherwise provided, such collections are for deposit in the treasury as mis\xc2\xad\ncellaneous receipts as provided by \xc2\xa73617, revised statutes 31 U.S.C. 484 [the\npredecessor to 31 U.S.C. \xc2\xa7 3302(b)].\xe2\x80\x9d 52 Comp. Gen. 125, 126 (1972); see also\n61 Comp. Gen. 537, 539 (1982) (summarizing holding of 1972 opinion). In 1997,\nhowever, Congress passed the Veterans Reconciliation Act of 1997, which estab\xc2\xad\nlished a Department of Veterans Affairs Medical Care Collections Fund, and\nexpressly provided:\nAmounts recovered or collected after June 30, 1997, under any of\nthe following provisions of law shall be deposited in the fund:\n\n(6)\nPublic Law 87-693, popularly known as the \xe2\x80\x9c Federal Med\xc2\xad\nical Care Recovery Act\xe2\x80\x9d (42 U.S.C. 2651 et seq.), to the extent\nthat a recovery or collection under that law is based on medical\ncare or services furnished under this chapter [i.e. Chapter 17 of\nTitle 38, which governs hospital, nursing home, domiciliary, and\nmedical care for veterans].\n38 U.S.C. \xc2\xa7 1729A(b).8\n7 The opinions and legal interpretations of the G eneral Accounting O ffice and the Comptroller General often pro\xc2\xad\nvide helpful guidance on appropriations matters and related issues, but they are not binding on departments, agencies,\nor officers o f the executive branch. See Bowsher v. Synar, 478 U S. 714, 727-32 (1986).\n8 In 1996 Congress had amended M CRA to allow amounts recovered for medical care furnished by military facili\xc2\xad\nties to be credited to the appropnaiions supporting the facilities as prescribed by the Secretary of Defense. Pub\nL No. 104-201, \xc2\xa7 1075(a)(5), 110 Stat 2422, 2661 (1996) (codified as amended at 42 U S C \xc2\xa72651(0 (1994 &\nSupp 11 J996).\n\n254\n\n\x0cMiscellaneous Receipts Act Exception fo r Veterans\' Health Care Recoveries\n\nIn our view, the Veterans Reconciliation Act allows the portion of the settlement\namount that was based on claims under MCRA for medical care furnished or\nto be furnished by the Department of Veterans Affairs under Chapter 17 of Title\n38 to be deposited in the VA Fund.9 Even payment based on an abstract formula,\nsuch as ten cents per covered person, as opposed to a calculation o f actual\nexpenses for such claims, would qualify as long as the calculation was aimed\nsolely at settling the MCRA claim.\nMCRA specifically allows for the United States to recover for \xe2\x80\x9c the reasonable\nvalue of the care . . . furnished, to be furnished, paid for, or to be paid for.\xe2\x80\x9d\n42 U.S.C. \xc2\xa7 2651(a). Thus, some estimate of the value of future costs would be\ninevitable in determining damages even in a direct court action against the\ntortfeasor. Moreover, in the context of a settlement, as long as the federal govern\xc2\xad\nment had claims that it could assert in good faith under MCRA for such services,\nsuch claims could be relinquished in return for payment of a reasonable amount\nreflecting the value of the claims. The Attorney General has the authority to settle\na claim consistent with the requirements of the specific scheme under which the\nclaim arises. See 28 U.S.C. \xc2\xa7\xc2\xa7516, 519 (1994); see generally Settlement Authority\no f the United States in Oil Shale Cases, 4B Op. O.L.C. 756 (1980). Nothing in\nMCRA would appear to indicate that Congress intended to limit the Attorney Gen\xc2\xad\neral\xe2\x80\x99s discretion to determine a reasonable settlement amount. Even when that\namount is determined based on an abstract formula, the government may still be\nrecovering the money for purposes of satisfying the MCRA claim. For example,\nthe government may have determined that the ten-cents-per-veteran formula is\nan appropriate approximation of the actual expenses incurred in providing MCRA\nrecoverable Chapter 17 services to affected veterans. Thus, to the extent the tencents-pcr-veteran formula was aimed at determining a reasonable figure to com\xc2\xad\npensate the United States for the relinquishment of its MCRA claims against the\nFractionaters for Chapter 17 services, the resulting recovery would be \xe2\x80\x9c a recovery\nor collection under [MCRA] . . . based on medical care or services furnished\xe2\x80\x9d\nto veterans under Chapter 17. 38 U.S.C. \xc2\xa7 1729A(b). Furthermore, because the\npayment of the settlement was apparently received on August 15, 1997, the\nrecovery would appear to fall within the time limits of the Veterans Reconciliation\nAct.\nWe caution, however, that to the extent the settlement amount was calculated\nto include compensation to the United States for relinquishment of claims other\nthan the MCRA claims that are outlined above (i.e. to the extent the settlement\namount included compensation for claims that might have been made under, for\n9 In light of the formulation in MCRA providing for the recoupment o f costs for care and treatment \xe2\x80\x9c furnished,\nto be furnished, paid for, or to be paid for,\xe2\x80\x9d 42 U S C \xc2\xa72651(a), we believe that the Veterans Reconciliation\nAct formulation concerning the transfer of funds recovered under MCRA for medical carc or services \xe2\x80\x9c furnished\nunder this Chapter,\xe2\x80\x9d 38 U S C \xc2\xa7 l729A(b), should be read as authorizing the transfer of funds recovered under\nMCRA for medical care or services that were furnished in the past or will be furnished in the future under Chapter\n17.\n\n255\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 22\n\nexample, the False Claims Act or civil monetary penalty laws, or for claims of\ncommon law contribution or indemnity rights relating to Federal Tort Claims Act\ncases), the amount of the settlement that was considered to compensate the United\nStates for these other claims could not be deposited in the VA Fund. Similarly,\nwe note that any MCRA claim recovery formula based on the entire veteran popu\xc2\xad\nlation must reflect only the government\xe2\x80\x99s claims regarding Chapter 17 services\nand must not include claims relating to services furnished or paid for under other\nhealth benefit programs, if the formula is intended to yield an amount that may\nbe deposited in the VA fund.\nAccordingly, we conclude that the share of the settlement amount attributable\nto MCRA recoverable Chapter 17 services rendered by the Department of Vet\xc2\xad\nerans Affairs (less the 3% Department of Justice collection fee) may be deposited\nin the Department of Veterans Affairs Medical Care Collections Fund. Thus, to\nthe extent the ten-cents-per-veteran figure was intended to compensate the United\nStates solely for its claims under MCRA for services furnished under Chapter\n17 of Title 38, the portion of the settlement amount that was based on the size\nof the veteran population, less the 3% collection fee, may be deposited in the\nVA Fund. In light of the information that you have provided us, however, we\nare unable to determine the extent to which the settlement figure was aimed at\ncompensating the government for its claims under MCRA, and we cannot reach\na definitive conclusion on the actual amount that ultimately should be transferred\nto the VA Fund.\nTODD DAVID PETERSON\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n256\n\n\x0c'


b'Vesting of Iranian Assets\nB ecause th e In te rn a tio n a l E m e rg e n c y E c o n o m ic P o w e rs A c t d o es not a u th o riz e vesting\no f fo reig n p ro p e rty , and th e T ra d in g w ith th e E n em y A c t au th o riz e s vesting o n ly in\nw artim e, in th e ab sen ce o f a d e c la ra tio n o f w a r ag ain st Ira n it w o u ld be necessary to\nseek n e w leg islatio n in o r d e r for th e U n ited S tates to take title to th e b lo ck ed Iranian\nassets.\nN o d o m estic c o n stitu tio n al issue w o u ld be raised by legislation a u th o riz in g th e v estin g o f\nIran ian g o v e rn m e n t p ro p e rty ; m o re o v e r, v estin g fo r th e benefit o f e ith e r p riv a te cla im \xc2\xad\nan ts o r th e U .S. g o v e rn m e n t w o u ld be co n sisten t w ith p rin cip le s o f in tern atio n a l law ,\ne ith e r as a self-h elp m eth o d o f se c u rin g p ay m en t fo r dam ag es, o r as a reprisal for Ira n \xe2\x80\x99s\nc o n tin u in g v io latio n s o f in tern atio n a l law .\nV estin g legislatio n w o u ld h a v e little effect o n p en d in g d o m estic litigation in v o lv in g th e\nb lo ck ed Iran ian assets, an d its effect on p re -ju d g m e n t a tta c h m e n ts w o u ld d e p e n d upon\nth e v alid ity o f su ch a tta c h m e n ts u n d e r sta te law . V estin g legislation w o u ld not be\nen fo rc e a b le ag ain st p ro p e rty lo cated a b ro ad , an d w o u ld th e re fo re h av e no effect on\nfo reig n litig atio n in v o lv in g Iran ian d o lla r d ep o sits in U .S. b ra n c h banks a b ro a d , unless\nforeig n c o u rts w e re to hold th at su ch d o lla r d ep o sits a re in reality lo cated a t th e hom e\noffice o f th e ban k s in th e U n ited S tates.\n\nMarch 12, 1980\nM EM ORANDUM OPIN IO N FOR T H E ATTORNEY G EN ER A L\nWe have been asked to address a number of issues relating to possible\nvesting of Iranian assets. This preliminary response has been prepared\nin cooperation with the Civil Division.\nI. Existing Authority\n\nAt present no Iranian assets have been vested or seized. Vesting is a\nprocess by which the United States would take title to assets of a\nforeign country or its nationals. Under Executive Order No. 12,170 of\nNovember 14, 1979, the President blocked property of the Iranian\ngovernment, its instrumentalities, and the Central Bank of Iran.\n3 C.F.R. 457 (1979). The blocking order prevents property from being\ntransferred or withdrawn, but does not permit its use by the United\nStates or change title to it. This action was taken pursuant to the\nInternational Emergency Economic Powers Act, 50 U.S.C. \xc2\xa7 1701\n(Supp. I 1977) (IEEPA). This Act does not, however, provide author\xc2\xad\nity to vest property.1\n1\nN o private pro p erty o f Iranian nationals was blocked although the IE E P A is broad enough to\npermit this. It w ould be necessary for the President to issue an additional o rd e r to accom plish blocking\nC o n tin u e d\n\n202\n\n\x0cThe Trading with the Enemy Act provides for both blocking and\nvesting of foreign property. 50 U.S.C. App. \xc2\xa7 5(b). Until 1977, when\nthe International Economic Powers Act was enacted, the Trading with\nthe Enemy Act applied both during wartime and during any other\nperiod of national emergency declared by the President. It was amend\xc2\xad\ned, however, so that it now applies only during wartime. 91 Stat. 1625\n(1977). Therefore, the national emergency relating to Iran declared by\nthe President on November 14, 1979, does not trigger the Trading with\nthe Enemy Act. If the Trading with the Enemy Act were to be used it\nwould be necessary to declare war. In the absence of such a declaration\nit would be necessary to seek new legislation. We make no recommen\xc2\xad\ndation as to whether or not the United States should declare war on\nIran.\nII. Proposed Legislation\n\nIf the Administration seeks legislation permitting vesting of Iranian\nassets a number of policy and legal questions would have to be faced.\nThese include whether to provide in the legislation for disposition of\nthe assets once vested and what that disposition should be.\nWe do not think that any domestic constitutional issue arises in the\ntaking of Iranian government property. The Fifth Amendment by its\nterms applies only to the taking of \xe2\x80\x9cprivate property\xe2\x80\x9d without just\ncompensation. Thus, on its face the Just Compensation Clause does not\napply. The role of the Constitution in domestic law, as well as the text,\nsupports this conclusion. Constitutional protections limit the power of\nthe United States to act upon persons who are subject to its power by\nvirtue of their presence in this country or their activities here. The\nUnited States asserts its power with respect to foreign nations because\nas a sovereign among equals it enjoys powers and privileges under\ninternational law and not because of its domestic authority.2 Cf. United\nStates v. Curtiss-Wright Export Co., 299 U.S. 304, 315-18 (1936).\nThe precedents for this type of legislation have focused on providing\nfor settlement of private claims against a foreign government, while\ngovernment-to-government claims have been settled directly. See the\nInternational Claims Settlement Act of 1949, as amended, 22 U.S.C.\n\xc2\xa71621 et seq. There is no reason, however, why the legislation has to\nbe so limited. As discussed below, vesting for the benefit of either\no f private p roperly since the N ovem ber 14 o rd e r only perm its the Secretary o f the T reasury to block\nIranian governm ent property. Presum ably, such action w ould be necessary pending vesting legislation;\notherw ise, the pro p erty could be w ith d raw n in the interim. T h e vesting o f private assets presents\nissues different from those concerning vesting o f governm ent assets, as w e discuss below.\n2\nV esting p roperty o f private Iranian citizens presents constitutional issues w hich should be exam \xc2\xad\nined in detail if th ere is any intent to act regarding private properly. Russian Volunteer Fleet v. United\nStates. 282 U.S. 481 (1931). B u t see Sordino v. Federal Reserve Bank, 361 F.2d 106 (2d Cir. 1966), cert,\ndenied, 385 U.S. 898 (1966).\n\n203\n\n\x0cprivate claimants or the United States government would be consistent\nwith international law.\nIII. International Law\nA. Dam ages\n\nThe United States has claimed that Iran has flagrantly violated its\ntreaty obligations to the United States including those under the Vienna\nConventions on Diplomatic and Consular Relations. Apr. 18, 1961, 23\nU.S.T. 3227, T.I.A.S. No. 7502, and Apr. 24, 1963, 21 U.S.T. 77,\nT.I.A.S. No. 6820. Breach of an international agreement involves an\nobligation to make reparation in an adequate form, even when the\ntreaty does not specify damages as a remedy. E.g., Corfu Channel Case,\n1949 I.C.J. at pp. 23-24.\nSelf-help is recognized in international law as a method of securing\npayment for damages. The unquestioned right of a state to protect its\nnationals in their persons and property while in a foreign country must\npermit initial seizure and ultimate expropriation of assets if other meth\xc2\xad\nods of securing compensation should fail. E.g., Sordino v. Federal R e\xc2\xad\nserve Bank o f N ew York, 361 F.2d 106 (2d Cir.), cert, denied, 385 U.S.\n898 (1966).\nThe United States is now proceeding against Iran in the International\nCourt of Justice. The Court ruled as a preliminary matter on December\n15, 1979, that Iran has violated pertinent treaties. It has not yet ruled on\nthe question of damages. In January the United States submitted a\nMemorial (brief) to the Court seeking a judgment that the United States\nis \xe2\x80\x9centitled to the payment to it, in its own right and in the exercise of\nits right of diplomatic protection of its nationals held hostage, of repa\xc2\xad\nration . . . in a sum to be determined by the Court at a subsequent\nstage of the proceedings.\xe2\x80\x9d It is likely that the issue of liability will be\nargued to the Court in the near future and there is every reason to\nanticipate a favorable judgment on the question. Such a judgment\nwould, of course, lend support to any self-help remedies the United\nStates may seek to apply. If in a subsequent hearing the Court were to\nfind damages in an amount less than that seized by the United States,\nwe might face the issue of whether part of the assets should be\nreturned.\nB. Reprisal\n\nApart from the issue of damages, vesting may be viewed as a reprisal\nfor the continuing violations of international law by Iran and thus as an\nelement of our diplomatic efforts to end those violations. A. David,\nThe Strategy of Treaty Termination: Lawful Breaches and Retaliations\n234 (Yale Univ. Press, 1975). Non-forcible reprisals may be used in the\ncase of breach of treaty obligations. Com m entary on Vienna Convention\n204\n\n\x0con L aw o f Treaties, [1966] 2 Y.B. Int\xe2\x80\x99l L. Comm\xe2\x80\x99n 253-54. Since other\n\nmeans of settling the dispute have failed, and since we can argue that\nseizure is reasonably proportional to the injury suffered, this action can\nbe justified as meeting the standards of customary international law.\nE.g., 12 M. Whiteman, Digest of Int\xe2\x80\x99l Law 321-28. We take no position\non whether vesting will be an effective method of resolving the diplo\xc2\xad\nmatic impasse.\nIV. Effect of Vesting on Pending Litigation\nA. Dom estic Litigation\n\nWhat effect would a vesting of Iranian government-owned assets\nhave on domestic suits\xe2\x80\x94and especially on pre-judgment attachments\nwhich have been attempted by American creditors, primarily by Amer\xc2\xad\nican banks who have in their custody Iranian government deposits?\nThe Foreign Sovereign Immunities Act of 1976, 28 U.S.C. \xc2\xa7 1602,\ndeals comprehensively with the suability of foreign states and their\nagencies and instrumentalities, and defines the circumstances under\nwhich property of such entities can be attached prior to judgment and\nlevied upon in satisfaction of judgments. Whether a suit is properly\nbrought and whether an attachment is valid is, therefore, a question of\nfederal law; state law is relevant only in those instances where attach\xc2\xad\nment is authorized under the Immunities Act; state law defines the\nrights obtained by an attachment creditor.3\nVesting of Iranian government-owned assets would have little effect\non pending suits. It would be for the courts to determine on a case-bycase basis whether the Immunities Act confers jurisdiction. Vesting,\nhowever, would impact upon the pending pre-judgment attachments.\nA majority of the attachments which have been sought are in all\nlikelihood invalid because they either seek to reach property of the\nIranian government not used for a \xe2\x80\x9ccommercial purpose,\xe2\x80\x9d or because\nthe property sought to be reached belongs to an Iranian entity which is\ndistinct from the debtor entity. An American claimant who attempted\nan unauthorized attachment would not be deprived of any cognizable\nproperty interests if the asset is vested and title passes to the United\nStates.\nIn instances where attachments are proper under the Immunities Act,\ntheir legal effect would have to be determined under state law. A valid\nattachment would not be cancelled or annulled upon vesting, even if\nthe property were \xe2\x80\x9cfrozen\xe2\x80\x9d at the time the attachment was obtained.\nZittm an v. M cGrath, 341 U.S. 446 (1951) (holding that a \xe2\x80\x9cright, title\n3T h e Iranian Assets C o n tro l R egulations expressly authorize pre-judgm ent attachm ents. 31 C .F .R .\n\xc2\xa7 S35.4I8 (as added on D ecem ber 19, 1979). But the regulations authorize such attachm ent only w here\nfederal o r state law g rants a rig h t to a c re d ito r to attach his d e b to r\'s property; the regulations\nthem selves are not a source o f substantive c re d ito r\xe2\x80\x99s rights.\n\n205\n\n\x0cand interest\xe2\x80\x9d vesting leaves undisturbed any property interests acquired\nby a pre-vesting attachment creditor). When vesting property, the fed\xc2\xad\neral government merely steps into the shoes of the pre-vesting owner\n(here, the Iranian government). This does not mean that property in\nwhich an attachment creditor obtained an interest under state law is not\nsubject to vesting. The Second Z ittm an case (Zittm an v. McGrath, 341\nU.S. 471 (1951)) teaches that the federal government may enforce a\ntransfer of possession of the funds \xe2\x80\x9cfor purposes of administration.\xe2\x80\x9d\nDuring such administration\xe2\x80\x94which is akin to a receivership\xe2\x80\x94the pre\xc2\xad\nexisting rights of attachment creditors must be preserved. State law\nwould determine whether an attachment creditor would be entitled to a\npreference if the assets of the pre-vesting owner turn out to be insuffi\xc2\xad\ncient to satisfy the obligation owed to the creditor.\nB. Effect on Foreign Litigation\n\nLegislation authorizing the vesting of Iranian property would, under\nprinciples of international law, not be enforceable against property\nlocated abroad.4 Iranian dollar deposits in U.S. branch banks abroad\ncould be reached only if the foreign courts were to hold that such\ndollar deposits in U.S. branch banks are in reality located at the home\noffice of the banks in the United States. O f course, that issue is pres\xc2\xad\nently being litigated in English and French courts with respect to the\nPresidential freeze order.\nWhile authorizing vesting of domestic assets, Congress could confirm\nthe preexisting Presidential freezing order on Iranian governmentowned assets in the custody of American nationals abroad, in which\ncase the pending litigation in England and France would continue.\nCongress could, in the alternative, lift the freeze on Iranian assets held\nby Americans abroad, thus mooting the litigation (as far as the\nextraterritorial reach of the Presidential freezing order is concerned).\nJo\n\nhn\n\nM.\n\nH\n\narm on\n\nAssistant Attorney General\nOffice o f L egal Counsel\n\n*See Ingenohl v. Olsen, 273 U.S. 541, 544 (1927): \xe2\x80\x9c If the A lien P roperty C ustodian purported to\nconvey rights in English te rrito ry valid as against those w hom the English law protects he exceeded\nthe pow ers that w ere o r could be given to him by the U nited States." A ttem pts by states to extend\ntheir seizure pow ers ex traterrito rially have failed. See, e.g.. Republic o f Iraq v. First N ational City Bank,\n353 F.2d 47 (2d Cir. 1965), cert, denied. 382 U.S. 1027 (1966).\n\n206\n\n\x0c'


b'Under Secretary of the Treasury for Enforcement\nThe President does not have a legal duty to make a nomination for Under Secretary of the Treasury for\nEnforcement.\nIf the President does not make a nomination, the Secretary of the Treasury could perform the duties\nhimself or assign them to another official of his department.\n\nDecember 19, 2002\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF THE TREASURY\nYou have asked for our opinion whether the President has a legal duty to make\na nomination for Under Secretary of the Treasury for Enforcement. We believe\nthat he does not. You have further asked how, if the President does not make a\nnomination, the duties of the office may be discharged. We believe that the\nSecretary of the Treasury (\xe2\x80\x9cSecretary\xe2\x80\x9d) could perform the duties himself or assign\nthem to another official of his department.\nI.\nUnder 31 U.S.C. \xc2\xa7 301(d) (2000), the Department of the Treasury \xe2\x80\x9chas . . . an\nUnder Secretary for Enforcement . . . appointed by the President, by and with the\nadvice and consent of the Senate.\xe2\x80\x9d At present, this Under Secretary supervises the\nBureau of Alcohol, Tobacco, and Firearms, but the recently enacted Homeland\nSecurity Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002), which will\nbecome effective January 24, 2003, id. \xc2\xa7 4, 116 Stat. at 2142, will largely transfer\nthat bureau to the Department of Justice. Id. \xc2\xa7 1111(c). The Treasury Department\nwill retain only the bureau\xe2\x80\x99s administration and revenue collection functions,\nwhich will be performed by a newly created Tax and Trade Bureau. Id. \xc2\xa7 1111(d).\nThe Tax and Trade Bureau is to be headed by an Administrator, \xe2\x80\x9cwho shall\nperform such duties as assigned by the Under Secretary for Enforcement of the\nDepartment of the Treasury.\xe2\x80\x9d Id. \xc2\xa7 1111(d)(2). In addition to assigning these\nduties, the Under Secretary for Enforcement implicitly will have one other\nstatutory responsibility: to receive advice and recommendations from the Director\nof the Financial Crimes Enforcement Network about \xe2\x80\x9cmatters relating to financial\nintelligence, financial criminal activities, and other financial activities.\xe2\x80\x9d 31\nU.S.C.A. \xc2\xa7 310(b)(2)(A) (West. Supp. 2002).\nIn view of the highly limited statutory duties that the Under Secretary for\nEnforcement will exercise after the Homeland Security Act takes effect, you have\nraised the possibility that the President might not wish to fill the next vacancy in\nthat office.\n\n230\n\n227-329 VOL_26_PROOF.pdf 240\n\n10/22/12 11:13 AM\n\n\x0cUnder Secretary of the Treasury for Enforcement\n\nII.\nOur opinions do not definitively resolve whether, in these circumstances, the\nPresident has a legal duty to make a nomination. Some statutes provide that the\nPresident \xe2\x80\x9cshall\xe2\x80\x9d nominate and, with the Senate\xe2\x80\x99s advice and consent, appoint a\nparticular officer, and these statutes may be understood to require the President to\nmake a nomination within a reasonable time. See Memorandum [for the Acting\nAttorney General], from Robert G. Dixon, Jr., Assistant Attorney General, Office\nof Legal Counsel, Re: Applicability of the 30-Day Vacancies Act Time Limit to\nYour Tenure as Acting Attorney General at 29-30 (Dec. 7, 1973) (the statute\nproviding for appointment of the Attorney General and the President\xe2\x80\x99s constitutional responsibilities \xe2\x80\x9ccreate a legal duty\xe2\x80\x94and not merely political pressure\xe2\x80\x94to\nsubmit a nomination within a reasonable time after the vacancy occurred\xe2\x80\x9d); see\nalso Memorandum for the Attorney General, from Golden W. Bell, Assistant\nSolicitor General, Re: Vacancy in the Office of Attorney General, 8 Unpub. Op.\nA.S.G. 1538, 1540 (Dec. 5, 1938). But see Letter for the President, from Homer\nCummings, Attorney General, 2 Unpub. Op. A.S.G. 447 (Jan. 24, 1934). 1 Other\nstatutes provide that the President \xe2\x80\x9cmay\xe2\x80\x9d make nominations and appointments.\nSee, e.g., 28 U.S.C. \xc2\xa7 504 (2000) (Deputy Attorney General). By their plain terms,\nthese other statutes give the President the discretion to leave the offices unfilled.\nHere, the language of the statute is that the Treasury Department \xe2\x80\x9chas\xe2\x80\x9d an\nUnder Secretary for Enforcement. 31 U.S.C. \xc2\xa7 301(d). This language appears to\ndescribe, rather than prescribe, the make-up of the Department. Along these lines,\nthe Senate Committee on Appropriations\xe2\x80\x99 Explanatory Statement on the Emergency Supplemental Appropriations Act of 1994, the bill that enacted the language,\nobserved that the provision would \xe2\x80\x9cpermit the President to nominate, with the\nadvice and consent of the Senate, a third Under Secretary of the Treasury.\xe2\x80\x9d 140\nCong. Rec. 2031 (1994) (emphasis added). 2 At the least, Congress imposed no\nclear obligation upon the President to make a nomination, and we would not read\n1\nIn other instances, we have more generally identified a duty to submit a nomination when an\nofficial is \xe2\x80\x9cacting\xe2\x80\x9d in an office and thus when failure to make a nomination within a reasonable time\nmight undercut the Senate\xe2\x80\x99s role of advice and consent. See, e.g., Status of the Acting Director, Office\nof Management and Budget, 1 Op. O.L.C. 287, 290 (1977); Memorandum for the Attorney General,\nfrom Dawn Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, Re: Acting Designation (Dec. 12, 1997); see also Letter for the President, from Homer Cummings, Attorney General,\n6 Unpub. Op. A.S.G. 756 (Sept. 24, 1936); Oversight of the Implementation of the Vacancies Act:\nHearing on S. 1764 Before the Senate Comm. On Governmental Affairs, 105 Cong. 138, 148 (1998)\n(statement of Joseph N. Onek, Principal Deputy Associate Attorney General, and Daniel Koffsky,\nSpecial Counsel, Office of Legal Counsel).\n2\nCongress in 1993 directed that \xe2\x80\x9c[n]otwithstanding any other provision of law, the Secretary of the\nTreasury shall establish an Office of the Undersecretary for Enforcement within the Department of the\nTreasury by no later than February 15, 1994.\xe2\x80\x9d Pub. L. No. 103-123, \xc2\xa7 105, 107 Stat. 1226, 1234 (1993).\nCongress enacted the current language of 31 U.S.C. \xc2\xa7 301(d) in 1994. Neither of these enactments\nanswers the question whether Congress has required the filling of the office to be established.\n\n231\n\n227-329 VOL_26_PROOF.pdf 241\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\none into the statute: \xe2\x80\x9cWhen Congress decides purposefully to enact legislation\nrestricting or regulating presidential action, it must make its intent clear.\xe2\x80\x9d\nArmstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991) (emphasis added).\nTo be sure, 31 U.S.C. \xc2\xa7 301 also provides that \xe2\x80\x9c[t]he President may appoint, by\nand with the advice and consent of the Senate, an Assistant General Counsel who\nshall be the Chief Counsel for the Internal Revenue Service,\xe2\x80\x9d 31 U.S.C.\n\xc2\xa7 301(f)(2), and the use of \xe2\x80\x9cmay\xe2\x80\x9d in this provision arguably suggests that, in\ncontrast, the \xe2\x80\x9chas . . . an Under Secretary for Enforcement\xe2\x80\x9d language was intended\nto impose a duty on the President to fill the office of Under Secretary for\nEnforcement. See Russello v. United States, 464 U.S. 16, 23 (1983) (\xe2\x80\x9c[W]here\nCongress includes particular language in one section of a statute but omits it in\nanother section of the same Act, it is generally presumed that Congress acts\nintentionally and purposely in the disparate inclusion or exclusion.\xe2\x80\x9d) (internal\nquotation marks omitted). But this possible inference hardly makes \xe2\x80\x9cclear\xe2\x80\x9d that\nCongress intended to fix a duty upon the President. Armstrong, 924 F.2d at 289.\nIndeed, the provision on the Chief Counsel continues: \xe2\x80\x9cThe Chief Counsel is the\nchief law officer for the Service and shall carry out duties and powers prescribed\nby the Secretary.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 301(f)(2). As this additional language shows,\nsection 301 does not invariably use the present tense of verbs (\xe2\x80\x9chas\xe2\x80\x9d or \xe2\x80\x9cis\xe2\x80\x9d) to\nrefer to offices that necessarily will be filled, and no inference should be drawn\nfrom the use of the words \xe2\x80\x9chas . . . an Under Secretary for Enforcement\xe2\x80\x9d rather\nthan some variation of the \xe2\x80\x9cmay appoint\xe2\x80\x9d formulation.\nIII.\nIf the President leaves the office unfilled, the remaining duties of the office\nmust be carried out by some other official. As noted above, the Under Secretary\nfor Enforcement assigns duties to the Tax and Trade Bureau and receives advice\nand recommendations from the Director of the Financial Crimes Enforcement\nNetwork. Absent new legislation, there are, we believe, two basic ways in which\nthese responsibilities could be performed.\nFirst, the Secretary himself could assign duties to the Tax and Trade Bureau\nand receive the reports from the Director of the Financial Crimes Enforcement\nNetwork. Under 31 U.S.C. \xc2\xa7 321(c) (2000), \xe2\x80\x9c[d]uties and powers of officers and\nemployees of the Department are vested in the Secretary,\xe2\x80\x9d with some express\nexceptions not relevant here. The Secretary, therefore, could carry out these duties.\nInterpreting similar language applicable to the Attorney General, 28 U.S.C. \xc2\xa7 509\n(2000), we have concluded that the provision sets up a \xe2\x80\x9cgeneral standing rule that\nall functions performed by officers in the Department of Justice are vested\nultimately in the Attorney General and may be performed by him.\xe2\x80\x9d Memorandum\nfor the Deputy Attorney General, from Leon Ulman, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Authority of the Attorney General Over the\n\n232\n\n227-329 VOL_26_PROOF.pdf 242\n\n10/22/12 11:13 AM\n\n\x0cUnder Secretary of the Treasury for Enforcement\n\nNational Institute of Justice and the Bureau of Justice Statistics at 2 (Oct. 14,\n1980) (\xe2\x80\x9c1980 Opinion\xe2\x80\x9d). We would find a similar \xe2\x80\x9cgeneral standing rule\xe2\x80\x9d under 31\nU.S.C. \xc2\xa7 321(c). Although this \xe2\x80\x9cstanding rule\xe2\x80\x9d may be overcome when, for\nexample, there is a \xe2\x80\x9cspecific and explicit reservation of \xe2\x80\x98final\xe2\x80\x99 decisionmaking\npower\xe2\x80\x9d in a subordinate official, 1980 Opinion at 2, no such reservation or other\nlimit applies to the duties of the Under Secretary for Enforcement. See also, e.g.,\nVacancy Act (5 U.S.C. \xc2\xa7 3345-3349)\xe2\x80\x94Law Enforcement Assistance Administration, 2 Op. O.L.C. 72, 74 (1978) (the functions of the Law Enforcement Assistance\nAdministration, unlike \xe2\x80\x9cmost of the components of the Department,\xe2\x80\x9d were not\n\xe2\x80\x9ccompletely vested in the Attorney General,\xe2\x80\x9d although the Attorney General had\nsupervisory power). Accordingly, the Secretary himself could perform those\nduties.\nSecond, we believe that the Secretary could exercise his power under 31 U.S.C.\n\xc2\xa7 321(b)(2) to \xe2\x80\x9cdelegate [his] duties and powers . . . to another officer or employee\nof the Department of the Treasury.\xe2\x80\x9d With 31 U.S.C. \xc2\xa7 321(c) having vested in the\nSecretary the duties of the Under Secretary for Enforcement, section 321(b)(2)\nwould allow the Secretary to assign those duties to another officer or employee of\nthe Treasury Department. Once again, we have recognized the lawfulness of\nsimilar arrangements under the statutes governing the Department of Justice. See\nMemorandum for the Deputy Attorney General, from John C. Yoo, Deputy\nAssistant Attorney General, Office of Legal Counsel, and Rosemary Hart, Senior\nCounsel, Office of Legal Counsel, Re: Granting Special Deputy United States\nMarshal Status to Private Security Guards at 3 n.1 (Oct. 30, 2001) (function of the\nMarshals Service is vested in the Attorney General and delegated to the Deputy\nAttorney General).\nWe can identify no bar to the exercise of this authority in the present case.\nAlthough Congress may restrict the transfers of particular authorities to particular\ncomponents, see, e.g., 5 U.S.C. app. 3, \xc2\xa7 9(a)(2) (2000) (ordinarily barring the\ntransfer of \xe2\x80\x9cprogram operating responsibilities\xe2\x80\x9d to an Inspector General), no such\nrestriction appears applicable here. Further, under the Vacancies Reform Act,\n5 U.S.C. \xc2\xa7\xc2\xa7 3345-3349d (2000), if a statute or regulation provided that only the\nUnder Secretary of Enforcement could perform a particular responsibility, and if\nthat position became vacant, only the Secretary of the Treasury himself or an\nActing Under Secretary for Enforcement could perform that function or duty. See\n5 U.S.C. \xc2\xa7 3348(a)(2), (b). Here, however, the statutes do not require the Under\nSecretary for Enforcement personally to carry out the assigned duties, rather than\ndelegating them; we have found no codified regulation requiring such personal\naction, see 31 C.F.R. \xc2\xa7\xc2\xa7 1.1, 1.20 (2002); and we are informed by your office that\nthere are no such uncodified regulations or orders. We therefore believe that the\n\n233\n\n227-329 VOL_26_PROOF.pdf 243\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nVacancies Reform Act would not preclude the Secretary from delegating the\nduties in question to another official of the Department. 3\nM. EDWARD WHELAN III\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n3\nWe do not intend here to set out a comprehensive list of all the kinds of restrictions that might\napply to any transfer of authority within the Department of the Treasury, but confine ourselves to the\npresent case. We also note that we do not address any provisions governing the transfer of funds\nnecessary to effect a transfer of responsibilities. See, e.g., 31 U.S.C. \xc2\xa7 321(b)(3) (the Secretary \xe2\x80\x9cmay\ntransfer within the Department the records, property, officers, employees, and unexpended balances of\nappropriations, allocations, and amounts of the Department that the Secretary considers necessary to\ncarry out a delegation\xe2\x80\x9d under section 301(b)(2)).\n\n234\n\n227-329 VOL_26_PROOF.pdf 244\n\n10/22/12 11:13 AM\n\n\x0c'