b'(Slip Opinion)\n\nMandatory Disclosure of Civil Rights Cold Case Records\nThe mandatory disclosure regime in S. 3191, the Civil Rights Cold Case Records Collection Act of 2018, could curtail the President\xe2\x80\x99s ability to protect information subject to\nexecutive privilege.\nS. 3191 unconstitutionality restricts the qualifications for appointees to the Civil Rights\nCold Case Records Review Board and unconstitutionally dictates the timing of their\nappointments.\nS. 3191 unconstitutionally restricts the President\xe2\x80\x99s supervision of th e Executive Branch\nby prohibiting the President from removing Review Board members absent cause.\nFebruary 4, 2019\n\nMEMORANDUM OPINION FOR THE\nDEPUTY COUNSEL TO THE PRESIDENT\nOn December 27, 2018, Congress presented S. 3191, the Civil Rights\nCold Case Records Collection Act of 2018, to the President as an enrolled bill. Relying on advice from this Office, the Department of Justice\nhad raised serious constitutional concerns about earlier versions of this\nbill.1 Congress alleviated some of those concerns, but major issues remained in the enrolled version. When confronted with legislation presenting similar problems, Presidents have historically issued signing\nstatements to explain why the Executive believes certain provisions\nwould violate the Constitution and how the President would interpret or\nimplement provisions to avoid constitutional infirmities. Consistent with\nthis Office\xe2\x80\x99s advice, when the President signed this bill into law on\nJanuary 8, 2019, he issued a signing statement indicating how the Administration would interpret and apply the Act in a manner consistent\nwith the Constitution. See Statement by the President (Jan. 8, 2019),\nhttps://www.whitehouse.gov/briefings-statements/statement-by-thepresident-24/ (\xe2\x80\x9c2019 Signing Statement\xe2\x80\x9d); Civil Rights Cold Case Rec-\n\n1 See Letter for Ron Johnson, Chairman, Committee on Homeland Security and Governmental Affairs, U.S. Senate, from Prim F. Escalona, Principal Deputy Assistant\nAttorney General, Office of Legislative Affairs, Dep\xe2\x80\x99t of Justice (Nov. 13, 2018); Letter\nfor Trey Gowdy, Chairman, Committee on Oversight and Government Reform, U.S.\nHouse of Representatives, from Prim F. Escalona, Principal Deputy Assistant Attorney\nGeneral, Office of Legislative Affairs, Dep\xe2\x80\x99t of Justice (Nov. 13, 2018).\n\n1\n\n\x0c43 Op. O.L.C. __ (Feb. 4, 2019)\n\nords Collection Act of 2018, Pub. L. No. 115-426, 132 Stat. 5489 (2019).\nThis memorandum explains the basis for our advice.\nCongress appears to have modeled this legislation after the President\nJohn F. Kennedy Assassination Records Collection Act of 1992, Pub. L.\nNo. 102-526, 106 Stat. 3443 (\xe2\x80\x9cJFK Act\xe2\x80\x9d). The JFK Act created an independent agency\xe2\x80\x94the Assassination Records Review Board\xe2\x80\x94charged with\ndetermining whether to require the public disclosure of records related to\nPresident Kennedy\xe2\x80\x99s assassination. When President George H.W. Bush\nsigned that bill into law, he noted that he \xe2\x80\x9cfully support[ed] the goals of\nthis legislation.\xe2\x80\x9d Statement on Signing the President John F. Kennedy\nAssassination Records Collection Act of 1992 (Oct. 26, 1992), 2 Pub.\nPapers of Pres. George Bush 2004, 2004 (1992\xe2\x80\x9393) (\xe2\x80\x9c1992 Signing\nStatement\xe2\x80\x9d). But his signing statement also explained that the JFK Act\xe2\x80\x99s\nmandatory disclosure regime encroached upon the President\xe2\x80\x99s control\nover information subject to executive privilege\xe2\x80\x94a constitutional authority\nthat \xe2\x80\x9ccannot be limited by statute\xe2\x80\x9d\xe2\x80\x94and had to be interpreted in a manner\nconsistent with the President\xe2\x80\x99s constitutional authority. Id. at 2004\xe2\x80\x9305.\nPresident Bush observed that the JFK Act also presented other significant\nseparation of powers concerns. Id. at 2005.\nS. 3191 replicates, and in some instances exacerbates, the constitutional\ninfirmities of the JFK Act. It creates an independent agency\xe2\x80\x94the Civil\nRights Cold Case Records Review Board (\xe2\x80\x9cReview Board\xe2\x80\x9d)\xe2\x80\x94and tasks it\nwith publicly releasing all records relating to unsolved civil rights cases\nunless clear and convincing evidence establishes that disclosure would\npose a concrete threat to national security, foreign affairs, law enforcement, or certain privacy interests. As under the JFK Act, this mandatory\ndisclosure regime could curtail the President\xe2\x80\x99s ability to protect information subject to executive privilege. In his signing statement, the President explained that, although he \xe2\x80\x9cfully support[s] the goals of this Act,\xe2\x80\x9d\nhe \xe2\x80\x9ccannot abdicate [his] constitutional responsibility to protect such\ninformation when necessary.\xe2\x80\x9d 2019 Signing Statement. He thus signed the\nAct \xe2\x80\x9con the understanding that the public disclosure of records may be\npostponed where necessary to protect executive privilege\xe2\x80\x9d and explained\nthat he would interpret the Act \xe2\x80\x9cconsistent with [his] authority under the\nConstitution to protect confidential executive branch materials.\xe2\x80\x9d Id.\nThis legislation also trenches upon the constitutional separation of\npowers in other ways. The Appointments Clause, U.S. Const. art. II, \xc2\xa7 2,\ncl. 2, gives the President broad discretion when appointing principal\n2\n\n\x0cMandatory Disclosure of Civil Rights Cold Case Records\n\nofficers, but the Act unconstitutionally restricts the qualifications for\nReview Board appointees and impermissibly dictates the timing of\nfuture appointments. The President\xe2\x80\x99s signing statement indicated that he\n\xe2\x80\x9cwill make every effort to heed\xe2\x80\x9d those restrictions, \xe2\x80\x9cbut, consistent with\n[his] constitutional authorities,\xe2\x80\x9d will treat those restrictions as advisory.\nFinally, the Act purports to restrict the President\xe2\x80\x99s ability to supervise\nprincipal officers performing sensitive executive functions, by insulating\nthe Review Board members from removal except for cause. Because\nCongress cannot constitutionally \xe2\x80\x9cinsulate decisionmakers who exercise\ncore executive functions from plenary presidential supervision,\xe2\x80\x9d the\nPresident stated that he \xe2\x80\x9cwill, therefore, comply with these removal\nrestrictions only insofar as they comport with [his] constitutional responsibility to supervise the executive branch.\xe2\x80\x9d 2019 Signing Statement.\nI.\nThis legislation establishes a new \xe2\x80\x9cindependent agency,\xe2\x80\x9d the Civil\nRights Cold Case Records Review Board, and vests it with broad powers\nto decide whether to direct the public release of \xe2\x80\x9ccivil rights cold case\nrecords.\xe2\x80\x9d S. 3191, \xc2\xa7 5. The Review Board has jurisdiction over a potentially wide range of materials, because such records include all records of\nany \xe2\x80\x9ccivil rights cold case,\xe2\x80\x9d defined as \xe2\x80\x9cany unsolved case\xe2\x80\x9d arising from\nevents between January 1, 1940 and December 31, 1979, \xe2\x80\x9crelated to\xe2\x80\x9d\ncertain federal civil rights statutes\xe2\x80\x94namely 18 U.S.C. \xc2\xa7 241 (conspiracy\nagainst rights), 18 U.S.C. \xc2\xa7 242 (deprivation of rights under color of\nlaw), 18 U.S.C. \xc2\xa7 245 (federally protected activities), 18 U.S.C. \xc2\xa7\xc2\xa7 1581\nand 1584 (peonage and involuntary servitude), 42 U.S.C. \xc2\xa7 3631 (criminal interference with housing-related rights), and any other federal law in\neffect by December 31, 1979 that is enforced by the criminal section of\nthe Department of Justice\xe2\x80\x99s Civil Rights Division. S. 3191, \xc2\xa7 2(2). Cold\ncase records also include any records \xe2\x80\x9crelated to a civil rights cold case.\xe2\x80\x9d\nId. \xc2\xa7 2(3)(A). Because of the breadth of the phrase \xe2\x80\x9crelated to,\xe2\x80\x9d such\ncases need not involve violations of those statutes. Further, cold case\nrecords extend well beyond files created during any investigation of such\ncases, and could encompass materials created long after 1979. 2\n2 The Assassination Records Review Board interpreted the analogous phrase \xe2\x80\x9crelate to\nthe assassination of President John F. Kennedy\xe2\x80\x9d in the definition of an \xe2\x80\x9cassassination\nrecord,\xe2\x80\x9d JFK Act \xc2\xa7 3(2), 106 Stat. at 3444, to encompass records generated in the 1990s\n\n3\n\n\x0c43 Op. O.L.C. __ (Feb. 4, 2019)\n\nThe Review Board also has the power to decide whether to order the\npublic disclosure of records from all three branches of government,\nbecause civil rights cold case records encompass any relevant material\nthat any branch of government originated or possessed. The definition of\na \xe2\x80\x9ccivil rights cold case record\xe2\x80\x9d under the Act includes records \xe2\x80\x9ccreated\nor made available for use by, obtained by, or [which] otherwise came\ninto the possession of\xe2\x80\x9d all executive agencies, independent agencies, and\n\xe2\x80\x9cany other entity of the Federal Government.\xe2\x80\x9d S. 3191, \xc2\xa7 2(3)(B); see id.\n\xc2\xa7 2(6) (defining \xe2\x80\x9cGovernment office\xe2\x80\x9d to include \xe2\x80\x9cany office of the Federal Government\xe2\x80\x9d holding cold case records); id. \xc2\xa7 2(10) (defining \xe2\x80\x9coriginating body\xe2\x80\x9d to include executive agencies, congressional committees,\nand any \xe2\x80\x9cother Governmental entity that created a record\xe2\x80\x9d); id. \xc2\xa7 7(c)(5)\n(contemplating that records from outside the Executive Branch qualify as\ncold case records).3\nTo make these disclosure decisions, the Review Board has five members, whom the President must appoint subject to the advice and consent\nof the Senate. Id. \xc2\xa7 5(b)(1). Though the President chooses nominees, the\nAct purports to confine his choice to individuals satisfying numerous\nqualifications, including never having been involved in any investigation or inquiry related to any civil rights cold case. Id. \xc2\xa7 5(b)(2)(B), (3).\nThe Act also directs that, \xe2\x80\x9cso far as practicable,\xe2\x80\x9d appointments should\noccur within 60 days of enactment. Id. \xc2\xa7 5(b)(2)(A). Appointment of a\nreplacement must occur \xe2\x80\x9cin the same manner as the original appointment\nwithin 60 days of the occurrence of the vacancy.\xe2\x80\x9d Id. \xc2\xa7 5(d). Thus, in the\nevent of a vacancy, the Act purports not only to impose the same qualifications on nominees, but also to require that the entire process, from\nthe initial selection to Senate confirmation and presidential appointment,\noccur within 60 days.\nOnce constituted, the Review Board has four years to operate, but can\nadd another year at its discretion to complete its work. Id. \xc2\xa7 5(n)(1). The\npertaining to investigations or inquiries into the assassination. Temporary Certification\nUnder the President John F. Kennedy Assassination Records Collection Act of 1992,\n41 Op. O.L.C. __, at *3 (Oct. 26, 2017).\n3 The bill does not appear to subject grand jury materials or other sealed materials that\notherwise qualify as cold case records to the mandatory disclosure procedures. Rather, the\nbill authorizes the Review Board to \xe2\x80\x9crequest the Attorney General to petition any court in\nthe United States\xe2\x80\x9d to release such records, and requires the Attorney General to respond\nto such a request within 45 days. S. 3191, \xc2\xa7 8(a)(1), (2)(A), (3)(A).\n\n4\n\n\x0cMandatory Disclosure of Civil Rights Cold Case Records\n\nAct authorizes the President to remove Review Board members from\noffice only for cause: \xe2\x80\x9cinefficiency, neglect of duty, malfeasance in office,\nphysical disability, mental incapacity, or any other condition that substantially impairs the performance of the member\xe2\x80\x99s duties.\xe2\x80\x9d Id. \xc2\xa7 5(f )(1)(B).\nAnd the President must notify Congress of the justification for any removal within ten days. Id. \xc2\xa7 5(f )(2)(A). A member who is removed can\nseek review in the U.S. District Court for the District of Columbia. Id.\n\xc2\xa7 5(f )(3).\nThe records review process will work as follows: Within two years of\nthe Act\xe2\x80\x99s enactment, every relevant entity within the federal government\xe2\x80\x94whether in the Executive, Legislative, or Judicial Branch\xe2\x80\x94must\nidentify all cold case records in its possession and decide whether to\npublicly disclose them. If the entity determines that a record can be publicly disclosed, it must transmit the record to the Archivist of the United\nStates, id. \xc2\xa7 3(e)(1)(A), who must make the record publicly available\nwithin 60 days, id. \xc2\xa7 3(b).\nThe Act authorizes postponement of disclosure in only two circumstances. First, the Attorney General can temporarily delay transmitting\nrecords to the Archivist by certifying within two years of the Act\xe2\x80\x99s enactment that he \xe2\x80\x9cintends to reopen and pursue prosecution of the civil\nrights cold case to which a civil rights cold case record relates.\xe2\x80\x9d Id.\n\xc2\xa7 3(e)(2). That certification gives the Attorney General one year to file an\nindictment or information; if he fails to do so, he must then transmit the\nrecords to the Archivist. Id. \xc2\xa7 3(e)(2)(B). If he pursues the case, he may\ndelay transmitting records to the Archivist until 90 days after either \xe2\x80\x9cfinal\njudgment is entered in the proceedings relating to\xe2\x80\x9d the cold case or such\nproceedings were \xe2\x80\x9cdismissed with prejudice.\xe2\x80\x9d Id. \xc2\xa7 3(e)(2)(A). The Act\ndoes not include any mechanism for requesting further delay on another\nbasis after this temporary postponement ends, even if the case is under\nactive investigation at that point. It is also unclear whether the Attorney\nGeneral can seek Review Board approval of further postponement at that\njuncture.\nSecond, within two years of the Act\xe2\x80\x99s enactment, any governmental\nentity with a cold case record can seek the Review Board\xe2\x80\x99s approval to\npostpone disclosure. See id. \xc2\xa7\xc2\xa7 3(e)(1)(B), 5(h), 5(i)(1)(A). But the Review Board must order public disclosure absent \xe2\x80\x9cclear and convincing\nevidence\xe2\x80\x9d that the record is \xe2\x80\x9cnot a civil rights cold case record\xe2\x80\x9d or that it\nqualifies for postponement under one of the narrow exceptions in sec5\n\n\x0c43 Op. O.L.C. __ (Feb. 4, 2019)\n\ntion 4 of the Act. Id. \xc2\xa7 7(c)(1).4 Even if the Review Board determines that\npostponement is warranted, it must designate a recommended specific\ntime or occurrence \xe2\x80\x9cfollowing which the material may be appropriately\ndisclosed to the public.\xe2\x80\x9d Id. \xc2\xa7 7(c)(3)(B).\nOnce the Review Board decides whether to postpone or withhold \xe2\x80\x9cexecutive branch civil rights cold case record[s] or information,\xe2\x80\x9d the President has \xe2\x80\x9csole and nondelegable authority to require the disclosure or\npostponement of such record or information\xe2\x80\x9d and \xe2\x80\x9cshall\xe2\x80\x9d notify the Review Board of his determination \xe2\x80\x9cwithin 30 days.\xe2\x80\x9d Id. \xc2\xa7 7(d)(1). Further,\nthe Act purports to limit the President\xe2\x80\x99s postponement power by authorizing him to override the Review Board\xe2\x80\x99s determination only if he finds that\nthe record satisfies the section 4 postponement criteria. Id. The Review\nBoard\xe2\x80\x99s decisions as to records originating in or received by the Legislative or Judicial Branches are final; representatives of those branches have\nno similar means to override decisions mandating the disclosure of their\nrecords.\nPostponed records\xe2\x80\x94including those the President orders postponed\xe2\x80\x94\nundergo periodic further review. Id. \xc2\xa7\xc2\xa7 3(f ), 7(d)(2). The Archivist and\nthe governmental entity that created the record must review every postponed record annually, \xe2\x80\x9cconsistent with the recommendations of the\nReview Board\xe2\x80\x9d regarding circumstances warranting future disclosure. Id.\n\xc2\xa7 3(f )(1). The Act does not specify a mechanism for the President or\nanyone else to review these decisions.\n\nSection 4 authorizes postponement only if disclosure \xe2\x80\x9cwould clearly and demonstrably be expected to\xe2\x80\x9d (1) reveal certain classified information or \xe2\x80\x9ccause identifiable or\ndescribable damage to national security, military defense, law enforcement, intelligence\noperations, or the conduct of foreign relations that is of such gravity that it outweighs\nthe public interest in disclosure\xe2\x80\x9d; (2) reveal a living confidential informant and \xe2\x80\x9cpose a\nsubstantial risk of harm to that individual\xe2\x80\x9d; (3) \xe2\x80\x9cconstitute an unwarranted invasion of\npersonal privacy\xe2\x80\x9d; (4) compromise a confidentiality understanding with a cooperating\nindividual, such that the harm of disclosure would outweigh the public interest;\n(5) \xe2\x80\x9cendanger the life or physical safety of any individual\xe2\x80\x9d; or (6) \xe2\x80\x9cinterfere with\nongoing law enforcement proceedings.\xe2\x80\x9d The bill elsewhere states that the Review\nBoard \xe2\x80\x9cshall consider[] . . . relevant laws and policies protecting criminal records of\njuveniles,\xe2\x80\x9d in addition to the section 4 criteria. S. 3191, \xc2\xa7 7(c)(1)(B). But it is unclear\nwhether government entities can recommend postponement on this basis, see id. \xc2\xa7 4,\nand the bill does not authorize the President to reverse the Review Board\xe2\x80\x99s determination when it has inadequately considered such laws or policies, id. \xc2\xa7 7(d)(1) (requiring\nthe President to apply \xe2\x80\x9cthe standards set forth in section 4\xe2\x80\x9d).\n4\n\n6\n\n\x0cMandatory Disclosure of Civil Rights Cold Case Records\n\nFinally, the Act mandates disclosure of all postponed records in 25\nyears unless disclosure (1) would \xe2\x80\x9ccause identifiable or describable damage to national security, military defense, law enforcement, intelligence\noperations, or the conduct of foreign relations that is of such gravity that\nit outweighs the public interest in disclosure\xe2\x80\x9d or (2) would reveal certain\nclassified information. Id. \xc2\xa7 3(f )(4)(A)(i). A governmental entity can\nrecommend postponing disclosure beyond 25 years only if it makes the\ncase, in writing, as to why its record satisfies those criteria. Even then,\nthe Archivist must \xe2\x80\x9cagree[] with the written recommendation\xe2\x80\x9d for postponement to continue. Id. \xc2\xa7 3(f )(4)(A)(iii).\nII.\nIn various applications, this legislation purports to impermissibly restrict the President\xe2\x80\x99s exercise of his constitutional authority to control the\ndisclosure of information protected by executive privilege. S. 3191 contains various grounds for postponing the disclosure of cold case records,\nand in many instances those grounds may allow governmental entities to\nprotect information subject to executive privilege. But the criteria for\npostponement do not appear to encompass the gamut of privileged information and erect significant obstacles to its protection. Furthermore, the\nAct purports to unconstitutionally dictate the disclosure of privileged\ninformation within the Executive Branch and to Congress.\nThe President\xe2\x80\x99s obligation to \xe2\x80\x9ctake Care that the Laws be faithfully executed,\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3, requires him to interpret and implement\nstatutes in a constitutional manner. See Presidential Signing Statements,\n31 Op. O.L.C. 23, 27 (2007); Presidential Authority to Decline to Execute\nUnconstitutional Statutes, 18 Op. O.L.C. 199, 202 (1994). Faced with\nlegislation raising similar constitutional problems, Presidents have frequently issued signing statements indicating that the Executive will treat\nas advisory provisions that purport to mandate the disclosure of privileged\ninformation. See, e.g., Presidential Signing Statements, 31 Op. O.L.C. at\n33\xe2\x80\x9334. Indeed, President Bush\xe2\x80\x99s signing statement regarding similar\nprovisions of the JFK Act explained that because Congress cannot limit\nthe President\xe2\x80\x99s constitutional authority to protect privileged information,\nthe President would protect such information \xe2\x80\x9cwhen necessary\xe2\x80\x9d and\nwould interpret relevant provisions \xe2\x80\x9cconsistently with [his] authority\nunder the Constitution to protect confidential executive branch materials.\xe2\x80\x9d\n7\n\n\x0c43 Op. O.L.C. __ (Feb. 4, 2019)\n\n1992 Signing Statement at 2004\xe2\x80\x9305.5 We accordingly advised that the\nPresident should notify Congress and the public that he would treat similar provisions in S. 3191 the same way.\nA.\nWe start with the constitutional concerns arising from the Act\xe2\x80\x99s mandatory disclosure regime. The President\xe2\x80\x99s authority \xe2\x80\x9cto prevent disclosure of\ncertain Executive Branch documents under the doctrine of executive\nprivilege\xe2\x80\x9d is \xe2\x80\x9cfundamental to the President\xe2\x80\x99s ability to carry out his constitutionally prescribed duties.\xe2\x80\x9d Prosecution for Contempt of Congress of\nan Executive Branch Official Who Has Asserted a Claim of Executive\nPrivilege, 8 Op. O.L.C. 101, 116 (1984) (\xe2\x80\x9cContempt of Congress\xe2\x80\x9d). \xe2\x80\x9c[I]n\norder for the President to carry out his constitutional responsibility to\nenforce the laws, he must be able to protect the confidentiality of certain\ntypes of documents and communications within the Executive Branch.\xe2\x80\x9d\nId. at 115; see also Congressional Requests for Confidential Executive\nBranch Information, 13 Op. O.L.C. 153, 154 (1989) (\xe2\x80\x9cCongressional\nRequests\xe2\x80\x9d) (executive privilege \xe2\x80\x9cis a necessary corollary of the executive\nfunction vested in the President by Article II of the Constitution\xe2\x80\x9d). The\nSupreme Court has thus recognized that executive privilege is \xe2\x80\x9cfundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.\xe2\x80\x9d United States v. Nixon, 418 U.S.\n683, 708 (1974).\nAlthough there is no \xe2\x80\x9cabsolute, unqualified Presidential privilege\xe2\x80\x9d to\nprevent the disclosure of all privileged information, id. at 706, the\nprivileged information at issue falls in the heartland of information that\nthe Executive Branch must be able to protect to perform its constitutionally assigned functions. \xe2\x80\x9cOpinions by Attorneys General and this\nOffice have repeatedly recognized the President\xe2\x80\x99s authority and respon5\n\nSee also, e.g., Statement on Signing the Consolidated Appropriations Act, 2017\n(May 5, 2017), 2017 Daily Comp. Pres. Doc. No. 312, at 2 (May 5, 2017); Statement on\nSigning the Omnibus Appropriations Act, 2009 (Mar. 11, 2009), 1 Pub. Papers of Pres.\nBarack Obama 216, 216\xe2\x80\x9317 (2009); Statement on Signing the E-Government Act of 2002\n(Dec. 17, 2002), 2 Pub. Papers of Pres. George W. Bush 2200, 2201 (2002); Statement on\nSigning the Omnibus Consolidated and Emergency Supplemental Appropriations Act,\n1999 (Oct. 23, 1998), 2 Pub. Papers of William J. Clinton 1843, 1848 (1998); Statement\non Signing the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (Oct. 28,\n1991), 2 Pub. Papers of Pres. George Bush 1344, 1345\xe2\x80\x9346 (1991).\n\n8\n\n\x0cMandatory Disclosure of Civil Rights Cold Case Records\n\nsibility to protect against the release of information affecting the Executive Branch\xe2\x80\x99s intelligence activities, military operations, conduct of\nforeign affairs, or law enforcement proceedings, even in the face of\nstatutory disclosure requirements.\xe2\x80\x9d Temporary Certification Under the\nPresident John F. Kennedy Assassination Records Collection Act of\n1992, 41 Op. O.L.C. __, at *16 (Oct. 26, 2017) (\xe2\x80\x9cTemporary Certification\xe2\x80\x9d); see id. at *16\xe2\x80\x9318; In re Sealed Case, 121 F.3d 729, 736\xe2\x80\x9339 (D.C.\nCir. 1997). S. 3191, however, purports to cabin the President\xe2\x80\x99s authority\nby imposing statutory criteria that could subject large swaths of privileged information to mandatory disclosure during the initial review\nprocess. And provisions concerning successive rounds of review and\ndisclosure of remaining records 25 years after the Act\xe2\x80\x99s enactment could\njeopardize protection even for privileged records that satisfy the initial\npostponement criteria.\nWith respect to initial disclosure determinations, the Act will protect\nprivileged information only based on \xe2\x80\x9cclear and convincing evidence\xe2\x80\x9d\nthat a record satisfies one of the statutory grounds for postponement in\nsection 4. S. 3191, \xc2\xa7 7(c)(1). But the President cannot lose the constitutional prerogative of asserting executive privilege merely because\nan agency fails to satisfy a burden of proof that exceeds the standard in\nmost civil cases. Such a regime could impermissibly compel the disclosure of privileged records irrespective of how greatly their disclosure\nwould interfere with Executive Branch functions.\nFurthermore, no matter what the standard of proof, the Act purports to\ndisable the President from protecting an array of privileged information\nthat may not fit within the narrow statutory grounds in section 4. For\nexample, the deliberative process component of executive privilege encompasses \xe2\x80\x9c\xe2\x80\x98advisory opinions, recommendations and deliberations\ncomprising part of a process by which government decisions and policies\nare formulated\xe2\x80\x99\xe2\x80\x9d\xe2\x80\x94materials often found in investigative files. Dep\xe2\x80\x99t of\nthe Interior v. Klamath Water Users Protective Ass\xe2\x80\x99n, 532 U.S. 1, 8\n(2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150\n(1975)). Such files may also contain \xe2\x80\x9c\xe2\x80\x98communications between high\nGovernment officials and those who advise and assist them in the performance of their manifold duties,\xe2\x80\x99\xe2\x80\x9d which also fall within the scope of the\nprivilege. Assertion of Executive Privilege with Respect to Clemency\nDecision, 23 Op. O.L.C. 1, 2 (1999) (opinion of Attorney General Janet\nReno) (quoting United States v. Nixon, 418 U.S. at 705). As the Supreme\n9\n\n\x0c43 Op. O.L.C. __ (Feb. 4, 2019)\n\nCourt has explained, \xe2\x80\x9cthe valid need for protection\xe2\x80\x9d of such communications is \xe2\x80\x9ctoo plain to require further discussion.\xe2\x80\x9d United States v. Nixon,\n418 U.S. at 705. Yet section 4 of the Act contains no express mechanism\nfor protecting information on that basis. The JFK Act similarly failed to\n\xe2\x80\x9ccontemplate nondisclosure of Executive Branch deliberations,\xe2\x80\x9d prompting President Bush to explain that he could not \xe2\x80\x9cabdicate [his] constitutional responsibility\xe2\x80\x9d to postpone records containing such deliberative\ninformation \xe2\x80\x9cwhen necessary.\xe2\x80\x9d 1992 Signing Statement at 2004.\nThe section 4 postponement criteria could also inadequately protect\nrecords subject to the law enforcement component of executive privilege,\nwhich gives the President the discretion to withhold investigative files,\nwhether open or closed, from disclosure. See generally Assertion of\nExecutive Privilege Concerning Special Counsel\xe2\x80\x99s Interviews, 32 Op.\nO.L.C. 7, 10\xe2\x80\x9311 (2008).6 As Attorney General William French Smith\nexplained, \xe2\x80\x9c[i]f the President believes that certain types of information in\nlaw enforcement files are sufficiently sensitive that they should be kept\nconfidential, it is the President\xe2\x80\x99s constitutionally required obligation to\nmake that determination.\xe2\x80\x9d Assertion of Executive Privilege in Response\nto Congressional Demands for Law Enforcement Files, 6 Op. O.L.C. 31,\n35 (1982); see also Temporary Certification, 41 Op. O.L.C. __, at *16;\nResponse to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 Op. O.L.C. 68, 75\xe2\x80\x93\n78 (1986) (\xe2\x80\x9cResponse to Congressional Requests\xe2\x80\x9d).\nInvestigative files often contain factual information that could, if disclosed, compromise an investigation or prosecution, reveal sensitive\ninvestigative techniques, or endanger confidential sources. Such files may\nalso contain strategic information about the Department of Justice\xe2\x80\x99s plans\nfor investigating and prosecuting a case. See Position of the Executive\nDepartment Regarding Investigative Reports, 40 Op. Att\xe2\x80\x99y Gen. 45, 46\n(1941) (opinion of Attorney General Robert Jackson) (\xe2\x80\x9cCounsel for a\nSee also Contempt of Congress, 8 Op. O.L.C. at 117\xe2\x80\x9318 (\xe2\x80\x9c[T]he Executive\xe2\x80\x99s ability\nto enforce the law would be seriously impaired . . . if the Executive were forced to\ndisclose sensitive information on case investigations and strategy from open enforcement\nfiles.\xe2\x80\x9d); Response to Congressional Requests, 10 Op. O.L.C. at 77 (\xe2\x80\x9cObviously, much of\nthe information in a closed criminal enforcement file, such as unpublished details of\nallegations against particular individuals and details that would reveal confidential\nsources, and investigative techniques and methods, would continue to need protection[.]\xe2\x80\x9d).\n6\n\n10\n\n\x0cMandatory Disclosure of Civil Rights Cold Case Records\n\ndefendant or prospective defendant[] could have no greater help than to\nknow how much or how little information the Government has, and what\nwitnesses or sources of information it can rely upon.\xe2\x80\x9d); cf. United States\nv. Agurs, 427 U.S. 97, 108\xe2\x80\x9313 (1976) (prosecutors are constitutionally\nobligated to disclose material favorable evidence if nondisclosure would\ndeny defendant a fair trial, but \xe2\x80\x9cthere is no constitutional requirement that\nthe prosecution make a complete and detailed accounting to the defense of\nall police investigatory work\xe2\x80\x9d) (internal quotation marks omitted). While\nnot every cold case record may contain such sensitive information\xe2\x80\x94let\nalone information that remains sensitive today\xe2\x80\x94the President must retain\nthe ability to withhold such records when disclosure would interfere with\nhis constitutional responsibility to enforce the law. As President Bush\nemphasized when objecting to similar provisions in the JFK Act, the\nPresident\xe2\x80\x99s \xe2\x80\x9cauthority to protect\xe2\x80\x9d information subject to executive privilege \xe2\x80\x9ccomes from the Constitution and cannot be limited by statute.\xe2\x80\x9d 1992\nSigning Statement at 2004.\nThe Act, however, purports to replace the President\xe2\x80\x99s judgment about\nthe sensitivity of law enforcement files with statutory grounds for withholding law enforcement records. The phrase \xe2\x80\x9ccold case records\xe2\x80\x9d refers to\nall records \xe2\x80\x9crelated to\xe2\x80\x9d \xe2\x80\x9cunsolved\xe2\x80\x9d criminal cases \xe2\x80\x9crelated to\xe2\x80\x9d alleged\nviolations of certain civil rights statutes between 1940 and 1980\xe2\x80\x94cases\nthat may never have been closed and may still be under active investigation. S. 3191, \xc2\xa7 2(2), 2(3)(A).7 Yet the Act allows agencies to withhold\ninvestigative files only if disclosure would (1) \xe2\x80\x9ccause identifiable or\ndescribable damage to . . . law enforcement . . . of such gravity that it\noutweighs the public interest in disclosure,\xe2\x80\x9d id. \xc2\xa7 4(1)(A); (2) reveal the\nidentity of living confidential sources and \xe2\x80\x9cpose a substantial risk of harm\nto that person,\xe2\x80\x9d id. \xc2\xa7 4(2); (3) \xe2\x80\x9ccompromise the existence of an understanding of confidentiality\xe2\x80\x9d with a cooperating individual and \xe2\x80\x9cbe so\nharmful that the understanding of confidentiality outweighs the public\n\n7 While courts have recognized that the common-law law enforcement privilege does\nnot extend indefinitely, it usually expires \xe2\x80\x9cat the close of an investigation or at a reasonable time thereafter based on a particularized assessment of the document.\xe2\x80\x9d In re U.S.\nDep\xe2\x80\x99t of Homeland Security, 459 F.3d 565, 571 (5th Cir. 2006). Many cold case records,\nhowever, may involve open investigations, and this Office has long recognized that the\nlaw enforcement component of executive privilege can extend to closed files as well. See\nsupra p. 10.\n\n11\n\n\x0c43 Op. O.L.C. __ (Feb. 4, 2019)\n\ninterest,\xe2\x80\x9d id. \xc2\xa7 4(4); or (4) \xe2\x80\x9cinterfere with ongoing law enforcement proceedings,\xe2\x80\x9d id. \xc2\xa7 4(6).\nThese statutory exceptions could curtail the President\xe2\x80\x99s ability to safeguard privileged information even when disclosure could jeopardize\nimportant law enforcement interests. For example, cold case records may\ncontain information that investigators withheld in order to test the veracity\nof confessions. But unless disclosure of such information would cause\n\xe2\x80\x9cidentifiable or describable damage\xe2\x80\x9d to law enforcement \xe2\x80\x9cof such gravity\nthat it outweighs the public interest in disclosure,\xe2\x80\x9d the Act appears to\nrequire public disclosure. Furthermore, the Act could require the government to reveal the identities of its confidential sources even if there were\nsome risk they would face harm, so long as the risk would not be \xe2\x80\x9csubstantial.\xe2\x80\x9d Likewise, the Act arguably compels the disclosure of confidential cooperation\xe2\x80\x94even ongoing cooperation\xe2\x80\x94if the harm from disclosure\nwould not outweigh the public interest in disclosure. But the law enforcement component of executive privilege protects such information\nagainst public disclosure based on whether disclosure would \xe2\x80\x9cdiscourag[e] citizens from giving the government information,\xe2\x80\x9d among other\nconsiderations. Temporary Certification, 41 Op. O.L.C. __, at *13\xe2\x80\x9314 n.7\n(internal quotation marks and citations omitted). While the Act authorizes\nwithholding if disclosure would \xe2\x80\x9cinterfere with ongoing law enforcement\nproceedings,\xe2\x80\x9d it is unclear whether that would cover interference with\ninvestigative steps preceding an indictment or the convening of a grand\njury, especially if the investigation were inactive at the time of review.\nCompounding these concerns, the Act could handcuff the Attorney\nGeneral in prosecuting cold cases for which the statute of limitations has\nnot expired. The Attorney General has only two years from enactment to\ncertify that he is temporarily delaying the transmission of records to the\nArchivist in a cold case he may wish to reopen and prosecute. S. 3191,\n\xc2\xa7 3(e)(2). But other agencies with cold case records potentially relevant to\nany prosecution face the same two-year window to decide whether to\ndisclose those records. Id. \xc2\xa7 3(e)(1). This provision could artificially\nconstrain the Attorney General\xe2\x80\x99s decisions about whether to reopen cold\ncases, lest governmental entities outside the Executive Branch beat him to\nthe punch and publicly disclose records that would thwart any future\nprosecution. Even if the Attorney General makes the requisite certification to protect such records, the Act mandates their transmission to the\nArchivist within one year, unless the Attorney General has brought charg12\n\n\x0cMandatory Disclosure of Civil Rights Cold Case Records\n\nes by then. Id. \xc2\xa7 3(e)(2). And the Act does not clearly provide for postponement of public disclosure after transmission, especially if the Review\nBoard has terminated by that point. In other words, the Attorney General\ncould certify that he plans to reopen a case based on a new lead, but if an\nindictment or information takes longer than a year to file, any new and\nhighly sensitive information could, perversely, become more vulnerable to\ndisclosure because of the certification.\nThe Act could also intrude on the President\xe2\x80\x99s control over information\nrelating to national security and foreign relations, which involve core\naspects of executive privilege. The President\xe2\x80\x99s \xe2\x80\x9cauthority to classify and\ncontrol access to information bearing on national security . . . flows primarily from th[e] constitutional investment of [the Commander in Chief ]\npower in the President,\xe2\x80\x9d and the \xe2\x80\x9cauthority to protect such information\nfalls on the President as head of the Executive Branch and as Commander\nin Chief.\xe2\x80\x9d Dep\xe2\x80\x99t of the Navy v. Egan, 484 U.S. 518, 527 (1988). Thus,\n\xe2\x80\x9csince the Washington Administration, Presidents and their senior advisers have repeatedly concluded that our constitutional system grants the\nexecutive branch authority to control the disposition of secret information.\xe2\x80\x9d Whistleblower Protections for Classified Disclosures, 22 Op.\nO.L.C. 92, 97 (1998); see also Presidential Certification Regarding the\nDisclosure of Documents to the House of Representatives Under the\nMexican Debt Disclosure Act of 1995, 20 Op. O.L.C. 253, 269\xe2\x80\x9376 (1996).\nCourts, too, have \xe2\x80\x9cshown the utmost deference to Presidential responsibilities\xe2\x80\x9d over the control of \xe2\x80\x9cmilitary or diplomatic secrets.\xe2\x80\x9d United States v.\nNixon, 418 U.S. at 710.\nThe Act, however, allows withholding only when disclosure would reveal certain kinds of classified information or would \xe2\x80\x9ccause identifiable or\ndescribable damage to national security, military defense, law enforcement, intelligence operations, or the conduct of foreign relations that is of\nsuch gravity that it outweigh[ed] the public interest in disclosure.\xe2\x80\x9d\nS. 3191, \xc2\xa7 4(1). It thus could mandate the disclosure of sensitive information if the harm from disclosure is insufficiently grave or particularized. It may well be that few cold case records contain information bearing on national security or foreign relations, let alone information this\nstatutory standard would not protect. But, to the extent they do, the Constitution requires that the President retain ultimate control over whether,\nwhen, and to whom to disclose them. President Bush deemed similar\nprovisions in the JFK Act unduly \xe2\x80\x9cnarrow\xe2\x80\x9d and explained they could not\n13\n\n\x0c43 Op. O.L.C. __ (Feb. 4, 2019)\n\nprevent him from exercising his constitutional duty to protect national\nsecurity information as he saw necessary. 1992 Signing Statement at\n2004.\nFinally, even privileged information that initially fits within a statutory\nground for postponement would not be assured continued protection.\nFirst, S. 3191 imposes even narrower grounds for withholding during\nsubsequent rounds of re-review. To justify any initial postponement, the\nReview Board must recommend a future time or event when a record\nmay be disclosed. S. 3191, \xc2\xa7 7(c)(3)(B). That recommendation then binds\ngovernmental entities and the Archivist when they conduct every round\nof annual re-review. Id. \xc2\xa7 3(f )(1). Thus, after the Review Board picks a\nfuture date or occurrence that it believes should trigger disclosure, the\nAct does not expressly provide the President with a way to intervene at\nthat juncture if he believes the information remains sensitive notwithstanding the Review Board\xe2\x80\x99s recommendation.\nSecond, the Act could insufficiently protect even sensitive records\npostponed during successive rounds of re-review. Such records would\nalmost certainly contain privileged information. But S. 3191 mandates the\ndisclosure of all postponed records within 25 years unless it would cause\n\xe2\x80\x9cidentifiable or describable damage to national security, military defense,\nlaw enforcement, intelligence operations, or the conduct of foreign relations that is of sufficient gravity that it outweighs the public interest in\ndisclosure,\xe2\x80\x9d id. \xc2\xa7 3(f )(4)(A)(i)(I), or would reveal certain kinds of classified information, id. \xc2\xa7 3(f )(4)(A)(i)(II). That basis for disclosure is narrower than the section 4 postponement criteria, and could thus mandate\ndisclosure even of records that continued to meet those criteria. Although\nthe sensitivity of this information may wane over time, this is a judgment\ncommitted to the discretion of the President, not Congress. Cf. Temporary\nCertification, 41 Op. O.L.C. __, at *15 (noting that \xe2\x80\x9c[s]erious constitutional concerns would arise if the JFK Act were construed to require . . .\npremature disclosures of records while they are likely to contain stillsensitive information\xe2\x80\x9d). 8\n\n8\n\nThe bill also lacks any mechanism whereby legislative entities or the courts could\nassert any relevant constitutional privileges to protect the confidentiality of any cold\ncase records they originated. See In re Grand Jury, 821 F.2d 946, 957 (3d Cir. 1987)\n(\xe2\x80\x9c[T]he legislator\xe2\x80\x99s need for confidentiality is similar to the need for confidentiality\nbetween judges, between executive officials, and between a President and his aides. The\n\n14\n\n\x0cMandatory Disclosure of Civil Rights Cold Case Records\n\nB.\nThe Act also purports to interfere with the President\xe2\x80\x99s authority to control access to privileged information within the Executive Branch or by\nCongress. But Congress may not \xe2\x80\x9cact to prohibit the supervision [by the\nPresident] of the disclosure of any privileged information, be it classified,\ndeliberative process or other privileged material.\xe2\x80\x9d Authority of Agency\nOfficials to Prohibit Employees From Providing Information to Congress,\n28 Op. O.L.C. 79, 80\xe2\x80\x9381 (2004) (\xe2\x80\x9cAuthority of Agency Officials\xe2\x80\x9d); see\nThe Department of Defense\xe2\x80\x99s Authority to Conduct Background Investigations for Its Personnel, 42 Op. O.L.C. __, at *9\xe2\x80\x9310 (Feb. 7, 2018) (\xe2\x80\x9cCongress may not impair the President\xe2\x80\x99s control over national security information\xe2\x80\x9d); Egan, 484 U.S. at 527 (the President\xe2\x80\x99s \xe2\x80\x9cauthority to . . . control\naccess to information bearing on national security\xe2\x80\x9d is an incident of his\nArticle II powers). Such interference is unconstitutional regardless of\nwhether Congress is dictating the flow of privileged information within\nthe Executive Branch or mandating its own access.\nLike the JFK Act, this bill impedes the President\xe2\x80\x99s control over the dissemination of privileged information in two respects. First, it requires\ngovernmental entities to give the Review Board access to all identified\ncold case records, see S. 3191, \xc2\xa7 5(i)(1)(A), as well as any \xe2\x80\x9cadditional\ninformation, records, or testimony . . . which the Review Board has reason\nto believe\xe2\x80\x9d it must obtain in order \xe2\x80\x9cto fulfill its functions and responsibilities under this Act,\xe2\x80\x9d id. \xc2\xa7 5(i)(1)(B), all of which may contain privileged\ninformation. Decisions about when, how, and to whom to disseminate\nsuch sensitive information are central to the President\xe2\x80\x99s authority to\nsupervise and manage the Executive Branch. See Access to Classified\nInformation, 20 Op. O.L.C. 402, 404 (1996) (\xe2\x80\x9c[T]he President\xe2\x80\x99s roles as\nCommander in Chief, head of the Executive Branch, and sole organ of the\nNation in its external relations require that he have ultimate and unimpeded authority over the collection, retention, and dissemination of intelligence and other national security information in the Executive Branch.\xe2\x80\x9d\nneed for a full, frank exchange of ideas has led courts to recognize qualified privileges\nfor each of these governmental decisionmakers.\xe2\x80\x9d) (citation omitted); Matter of Certain\nComplaints Under Investigation, 783 F.2d 1488, 1519 (11th Cir. 1986) (\xe2\x80\x9cThe Supreme\nCourt\xe2\x80\x99s reasons for finding a qualified privilege protecting confidential Presidential\ncommunications in United States v. Nixon, 418 U.S. 683 (1974), support the existence of\na similar judicial privilege.\xe2\x80\x9d).\n\n15\n\n\x0c43 Op. O.L.C. __ (Feb. 4, 2019)\n\n(internal citation omitted)); Authority of Agency Officials, 28 Op. O.L.C.\nat 80\xe2\x80\x9381. The Review Board\xe2\x80\x99s obligation to order disclosure of any records that fall outside the statutory postponement criteria, coupled with its\ninsulation from presidential supervision, make this bill far different from\nlegislation allowing Executive Branch officials sensitive to privilege\nconcerns to review former Presidents\xe2\x80\x99 records. See Nixon v. Adm\xe2\x80\x99r of\nGen. Servs., 433 U.S. 425, 443\xe2\x80\x9344 (1977).\nSecond, the Act gives congressional committees \xe2\x80\x9caccess to any records\xe2\x80\x9d the Review Board has \xe2\x80\x9cheld or created.\xe2\x80\x9d S. 3191, \xc2\xa7 5(k)(1). Such\nrecords will presumably include any records the Review Board obtains\nfrom other agencies to conduct its investigations and records of its own\ndecision-making. Such records may contain a wide range of information\nprotected by executive privilege, yet the Act purports to give the Executive Branch no choice but to disclose them. What is more, this requirement effectively supplants the accommodation process, the long-standing\nmanner in which the Executive and Legislative Branches have traditionally balanced their respective constitutional prerogatives through negotiation. See Congressional Requests, 13 Op. O.L.C. at 157\xe2\x80\x9359. President\nBush thus objected to the constitutionality of a similar provision in the\nJFK Act. See 1992 Signing Statement at 2004\xe2\x80\x9305.\nIII.\nThis legislation also establishes unconstitutional procedures for appointing members of the Review Board. The Appointments Clause,\nU.S. Const. art. II, \xc2\xa7 2, cl. 2, sets forth the respective roles of the President and Congress in appointing principal and inferior officers of the\nUnited States. Principal officers must be appointed by the President\nwith the advice and consent of the Senate. Inferior officers may be\nappointed in the same fashion or by the President alone, a court of law,\nor the head of a department, as provided by law.\nReview Board members are principal officers: they have ongoing authority to make final, binding decisions about the disposition of potentially sensitive government records, and they are supervised only by the\nPresident. Even based on \xe2\x80\x9cthe understanding that the public disclosure of\nrecords may be postponed where necessary to protect executive privilege,\xe2\x80\x9d as required by the 2019 Signing Statement, Review Board members would remain intimately involved in discharging a core Article II\n16\n\n\x0cMandatory Disclosure of Civil Rights Cold Case Records\n\nfunction. And they would still, in some instances, have the final say as to\nwhether records will be disclosed. Yet the Act purports to constrain the\nPresident\xe2\x80\x99s broad discretion to select principal officers by imposing a\nlitany of restrictions on how the President may select his preferred nominees. Furthermore, in the event of vacancies on the Review Board, the\nAct purports to require the President to make his selections swiftly\nenough to satisfy a 60-day deadline for installing replacements. President\nBush objected to similar restrictions on the JFK Act\xe2\x80\x99s Assassination\nRecords Review Board that \xe2\x80\x9cpurport[ed] to set the qualifications for\nBoard members, to require the President to review lists supplied by\nspecified organizations, and to direct the timing of nominations,\xe2\x80\x9d in\ncontravention of the Appointments Clause. 1992 Signing Statement at\n2005. Consistent with the President\xe2\x80\x99s duty to implement statutes in a\nconstitutional manner and with previous signing statements, we concluded that the President should treat S. 3191\xe2\x80\x99s putative restrictions on the\nappointments of principal officers as advisory.\nA.\nBased on the Review Board\xe2\x80\x99s responsibilities, its members are \xe2\x80\x9cOfficers of the United States\xe2\x80\x9d under the Appointments Clause, because they\nwill \xe2\x80\x9cexercis[e] significant authority pursuant to the laws of the United\nStates\xe2\x80\x9d and \xe2\x80\x9coccupy a continuing position established by law.\xe2\x80\x9d Lucia v.\nSEC, 138 S. Ct. 2044, 2051 (2018) (internal quotation marks omitted).\nThey exercise \xe2\x80\x9csignificant authority pursuant to the laws of the United\nStates\xe2\x80\x9d in the form of \xe2\x80\x9cpower lawfully conferred by the government to\nbind third parties, or the government itself, for the public benefit.\xe2\x80\x9d Officers of the United States Within the Meaning of the Appointments Clause,\n31 Op. O.L.C. 73, 87 (2007) (\xe2\x80\x9cOfficers of the United States\xe2\x80\x9d). Indeed, in\nmany cases, the Review Board may make final determinations about\ndisclosure that bind the government, and that type of \xe2\x80\x9clast-word capacity\xe2\x80\x9d\nis sufficient, though not necessary, to establish officer status. Lucia, 138\nS. Ct. at 2054; see Officers of the United States, 31 Op. O.L.C. at 95. For\ninstance, the Review Board\xe2\x80\x99s decisions to disclose non-Executive Branch\nrecords appear to be final and binding on the government because the\nPresident can review only decisions regarding Executive Branch records.\nS. 3191, \xc2\xa7 7(d)(1). The Review Board may also have final say for many\nExecutive Branch records because any decision to disclose such records\n17\n\n\x0c43 Op. O.L.C. __ (Feb. 4, 2019)\n\nappears to go into immediate effect if the President fails to review it\nwithin 30 days. See id. Furthermore, during the re-review process, the\nReview Board\xe2\x80\x99s prescriptions for triggering events or timetables for future\ndisclosure purport to bind governmental entities and the Archivist. Id.\n\xc2\xa7\xc2\xa7 3(f )(1), 7(c)(3)(B).\nEven aside from this final decision-making authority, the Review\nBoard performs functions \xe2\x80\x9cwithin the \xe2\x80\x98executive Power\xe2\x80\x99 that Article II of\nthe Constitution confers, functions in which no mere private party would\nbe authorized to engage.\xe2\x80\x9d Officers of the United States, 31 Op. O.L.C. at\n90. The Review Board will execute the mandatory disclosure regime in\nlieu of the Executive\xe2\x80\x99s ordinary mechanisms for controlling access to\nconfidential information. Not only that, it can \xe2\x80\x9cissue interpretive regulations\xe2\x80\x9d to perform those functions, S. 3191, \xc2\xa7 5(m)\xe2\x80\x94and significant\nauthority includes the power to \xe2\x80\x9cinterpret the law.\xe2\x80\x9d Officers of the United\nStates, 31 Op. O.L.C. at 87; Bowsher v. Synar, 478 U.S. 714, 733 (1986)\n(\xe2\x80\x9cInterpreting a law enacted by Congress to implement the legislative\nmandate is the very essence of \xe2\x80\x98execution\xe2\x80\x99 of the law.\xe2\x80\x9d). 9\nReview Board members also satisfy the second criterion of officer\nstatus: they occupy continuing positions established by law. See Lucia,\n138 S. Ct. at 2051. They have continuous duties to decide whether to\nWhile the Review Board can also issue subpoenas that \xe2\x80\x9cany appropriate Federal\ncourt\xe2\x80\x9d may enforce \xe2\x80\x9cpursuant to a lawful request of the Review Board,\xe2\x80\x9d S. 3191,\n\xc2\xa7 5(i)(1)(C), (F), (2), that does not constitute significant authority because we do not\nbelieve that these provisions give the Review Board independent litigating authority to\nenforce subpoenas. Rather, the Attorney General retains plenary authority to represent\nthe Review Board in litigation, including when deciding whether to represent the Review\nBoard in an action to enforce its subpoenas. See 2019 Signing Statement (\xe2\x80\x9cI have signed\nthe Act on the understanding that the Board must request judicial enforcement of a\nsubpoena through the Department of Justice, consistent with 28 U.S.C. 516 and the\nPresident\xe2\x80\x99s supervisory authority under Article II of the Constitution.\xe2\x80\x9d); see generally\nUnited States v. Hercules, Inc., 961 F.2d 796, 798\xe2\x80\x9399 (8th Cir. 1992); FTC v. Guignon,\n390 F.2d 323, 324\xe2\x80\x9325 (8th Cir. 1968); The Attorney General\xe2\x80\x99s Role as Chief Litigator\nfor the United States, 6 Op. O.L.C. 47, 56\xe2\x80\x9357 (1982). The power to issue subpoenas does\nnot constitute significant authority absent additional independent authority to enforce the\nsubpoena in court, which would transform investigative authority into an executive\nauthority to enforce the law. See Buckley v. Valeo, 424 U.S. 1, 137\xe2\x80\x9338 (1976) (per\ncuriam); Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of\nLegislative Affairs, from Sheldon Bradshaw, Deputy Assistant Attorney General, Office\nof Legal Counsel, Re: Abolishment of Obsolete Agencies and Federal Sunset Act of\n2001, H.R. 2373, at 2\xe2\x80\x933 (Apr. 15, 2002).\n9\n\n18\n\n\x0cMandatory Disclosure of Civil Rights Cold Case Records\n\npublicly disclose governmental records. The fact that the Review Board\nterminates in four to five years, S. 3191, \xc2\xa7 5(n)(1), does not detract from\nthe continuing nature of their statutory responsibilities during that term.\nSee Constitutionality of the Ronald Reagan Centennial Commission Act\nof 2009, 33 Op. O.L.C. __, at *2 (Apr. 21, 2009).\nFinally, Review Board members have all the hallmarks of principal officers. They are removable solely by the President, and they can render\nfinal decisions for the Executive Branch without the supervision, review,\nor approval of anyone besides the President. See Edmond v. United States,\n520 U.S. 651, 664\xe2\x80\x9365 (1997); see also The Constitutional Separation of\nPowers Between the President and Congress, 20 Op. O.L.C. 124, 150\n(1996) (\xe2\x80\x9cConstitutional Separation of Powers\xe2\x80\x9d); Intercollegiate Broad.\nSys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1339\xe2\x80\x9341 (D.C. Cir.\n2012); Secretary of Education Review of Administrative Law Judge Decisions, 15 Op. O.L.C. 8, 14 & n.11 (1991). They accordingly may not be\nconsidered \xe2\x80\x9cinferior officers,\xe2\x80\x9d \xe2\x80\x9cwhose work is directed and supervised at\nsome level by others who were appointed by Presidential nomination with\nthe advice and consent of the Senate.\xe2\x80\x9d Edmond, 520 U.S. at 663.\nB.\nThis legislation purports to limit the President\xe2\x80\x99s appointment of these\nprincipal officers in two unconstitutional ways: by overly restricting\nqualifications for the office and by prescribing a timetable for the President to fill any vacancies. The Appointments Clause leaves minimal room\nfor Congress to impose qualifications for holding a principal office.\n\xe2\x80\x9c[U]nder the Appointments Clause, \xe2\x80\x98[t]he President has the sole responsibility for nominating [principal officers] and the Senate has the sole\nresponsibility of consenting to the President\xe2\x80\x99s choice.\xe2\x80\x99\xe2\x80\x9d Constitutionality\nof Statute Governing Appointment of United States Trade Representative,\n20 Op. O.L.C. 279, 280 (1996) (\xe2\x80\x9cUSTR\xe2\x80\x9d) (quoting Pub. Citizen v. U.S.\nDep\xe2\x80\x99t of Justice, 491 U.S. 440, 487 (1989) (Kennedy, J., concurring in the\njudgment); see The Federalist No. 76, at 512 (Alexander Hamilton)\n(Jacob E. Cooke ed., 1961) (\xe2\x80\x9cIn the act of nomination [the President\xe2\x80\x99s]\njudgment alone would be exercised[.]\xe2\x80\x9d); The Federalist No. 66, at 449\n(Alexander Hamilton) (\xe2\x80\x9c[The Senate] may defeat one choice of the executive, and oblige him to make another; but they cannot themselves\nchoose\xe2\x80\x94they can only ratify or reject the choice, of the president.\xe2\x80\x9d).\n19\n\n\x0c43 Op. O.L.C. __ (Feb. 4, 2019)\n\nTo be sure, the First Congress imposed a modest qualification on the\noffice of Attorney General: the Judiciary Act of 1789 required that he be\n\xe2\x80\x9ca meet person, learned in the law.\xe2\x80\x9d Act of Sept. 24, 1789, ch. 20, \xc2\xa7 35,\n1 Stat. 73, 92. More generally, Congress may have a role in \xe2\x80\x9cthe prescribing of reasonable and relevant qualifications and rules of eligibility of\nappointees.\xe2\x80\x9d Myers v. United States, 272 U.S. 52, 129 (1926). But \xe2\x80\x9ca\nrestriction ruling out a large portion of those persons best qualified by\nexperience and knowledge to fill a particular office invades the constitutional power of the President and Senate to install the principal officers of\nthe United States.\xe2\x80\x9d USTR, 20 Op. O.L.C. at 280. Even if some limited\nqualifications for principal officers are permissible, \xe2\x80\x9cwhere an office . . .\nentails broad responsibility for advising the President and for making\npolicy, the President must have expansive authority to choose his aides.\xe2\x80\x9d\nId. at 281. For instance, Congress cannot constitutionally disqualify\nanyone \xe2\x80\x9cwho has directly represented, aided, or advised a foreign entity\n. . . in any trade negotiation, or trade dispute, with the United States\xe2\x80\x9d from\nthe position of United States Trade Representative, who is a principal\nofficer. Id. at 279; see also id. at 280\xe2\x80\x9381.\nUnder these precedents, the qualifications that S. 3191 prescribes for\nReview Board members clearly cross the line. Review Board members\nanswer to no one but the President and may determine whether to release\nprivileged material\xe2\x80\x94a core Article II prerogative. The President might\nfind it especially valuable to select members with some previous involvement in any federal, state, or local investigation or inquiry relating\nto any civil rights cold case, which could signal both relevant subjectmatter expertise and an understanding of executive privilege concerns.\nYet the Act renders that experience disqualifying. S. 3191, \xc2\xa7 5(b)(3)(A).\nThe Act further requires the President to pick \xe2\x80\x9cdistinguished individuals\nof high national professional reputation in their respective fields,\xe2\x80\x9d id.\n\xc2\xa7 5(b)(3)(B), and dictates that at least one must be a professional historian\nand another must be a lawyer, id. \xc2\xa7 5(b)(3)(C). Nominees must also be\n\xe2\x80\x9ccapable of exercising . . . independent and objective judgment\xe2\x80\x9d and\n\xe2\x80\x9cpossess an appreciation of the value of [cold case records] to the public,\nscholars, and government.\xe2\x80\x9d Id. \xc2\xa7 5(b)(3)(B). Taken in combination, and\nespecially given the important and sensitive nature of the Review Board\nmembers\xe2\x80\x99 duties, these criteria leave insufficient \xe2\x80\x9cscope for the judgment\nand will of the person or body in whom the Constitution vests the power\n20\n\n\x0cMandatory Disclosure of Civil Rights Cold Case Records\n\nof appointment\xe2\x80\x9d\xe2\x80\x94the President. Civil-Service Commission, 13 Op. Att\xe2\x80\x99y\nGen. 516, 520\xe2\x80\x9321 (1871).10\nAdding to the Appointments Clause problem, the legislation provides\nthat in the event of a vacancy, the President \xe2\x80\x9cshall . . . within 60 days\xe2\x80\x9d\nappoint a Senate-confirmed replacement to the Review Board. S. 3191,\n\xc2\xa7 5(d). Unlike the provision governing the timing of initial appointments,\nwhich gives the President the discretion to determine whether a 60-day\nprocess is \xe2\x80\x9cpracticable,\xe2\x80\x9d id. \xc2\xa7 5(b)(2)(A), the vacancies provision purports\nto be mandatory. But forcing the President to select a nominee within a\nshort timeframe interferes with the President\xe2\x80\x99s appointment authority by\nlimiting the amount of time he can dedicate to searching for and selecting\nsuitable nominees. This 60-day deadline is particularly onerous because,\nto comply with it, the President would not only need to make his selections and resolve security clearances, but would need somehow to leave\ntime for Senate confirmation\xe2\x80\x94a process that, in recent years, has averaged well over 60 days.\nPresidents have repeatedly objected that similar restrictions on the\nqualifications of principal officers and on the timing of their appointments\nviolate the Appointments Clause. 11 In these signing statements, Presidents\n10 Helpfully, the enrolled version of S. 3191 did remedy some unconstitutional features\nof previous iterations of this legislation. Previous versions had required appointment of\nthe Review Board members by the President alone or appointments by Congress, in clear\ncontravention of the Appointments Clause. And both the introduced House and Senate\nversions of the bill originally purported to require the President to consider the recommendations of various private organizations, such as the American Historical Association,\nbefore selecting nominees for the Review Board\xe2\x80\x94a restriction that unconstitutionally\ninterfered with the timing of the President\xe2\x80\x99s selections.\n11 See, e.g., Statement on Signing the Postal Accountability and Enhancement Act\n(Dec. 20, 2006), 2 Pub. Papers of Pres. George W. Bush 2219, 2219 (2006) (\xe2\x80\x9cThe executive branch shall construe subsections 202(a) and 502(a) of title 39 . . . , which purport to\nlimit the qualifications of the pool of persons from whom the President may select\nappointees [to the Board of Governors of the U.S. Postal Service] in a manner that rules\nout a large portion of those persons best qualified by experience and knowledge to fill the\nposition, in a manner consistent with the Appointments Clause of the Constitution. The\nexecutive branch shall also construe as advisory the purported deadline in subsection\n605(c) for the making of an appointment, as is consistent with the Appointments\nClause.\xe2\x80\x9d); Statement on Signing the Help America Vote Act of 2002 (Oct. 29, 2002),\n2 Pub. Papers of Pres. George W. Bush 1927, 1928 (2002) (\xe2\x80\x9cSection 203(a)(4) purports to\nrequire the President to make appointments to the [Election Assistance] Commission no\nlater than 120 days after enactment of the new law. . . . [T]his deadline unduly circum-\n\n21\n\n\x0c43 Op. O.L.C. __ (Feb. 4, 2019)\n\nhave indicated their intent to treat such restrictions as advisory. We recommended similar treatment in the President\xe2\x80\x99s signing statement on\nS. 3191.\nIV.\nFinally, the Act unconstitutionally restricts the President\xe2\x80\x99s supervision\nof the Executive Branch by prohibiting the President from removing\nReview Board members absent cause. See S. 3191, \xc2\xa7 5(f )(1)(B) (authorizing removal only for \xe2\x80\x9cinefficiency, neglect of duty, malfeasance in office,\nphysical disability, mental incapacity, or any other condition that substantially impairs the performance of the member\xe2\x80\x99s duties\xe2\x80\x9d). As the Supreme\nCourt has recognized, \xe2\x80\x9cArticle II confers on the President \xe2\x80\x98the general\nadministrative control over those executing the laws.\xe2\x80\x99\xe2\x80\x9d Free Enter. Fund\nv. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492 (2010). Accordingly, \xe2\x80\x9crestrictions on the President\xe2\x80\x99s power to remove officers with broad\npolicy responsibilities in areas Congress does not or cannot shelter from\npresidential policy control clearly should be deemed unconstitutional.\xe2\x80\x9d\nConstitutional Separation of Powers, 20 Op. O.L.C. at 169. Congress may\nnot impose removal restrictions on officers if those restrictions would\nunduly interfere with the President\xe2\x80\x99s exercise of a core Article II function.\nThe President\xe2\x80\x99s appointing authority and his constitutional obligations\nto execute the laws and to supervise the Executive Branch carry with them\nthe authority to remove executive officers. \xe2\x80\x9cBecause the power to remove\nis the power to control, restrictions on removal power strike at the heart of\nthe President\xe2\x80\x99s power to direct the executive branch and perform his\nconstitutional duties.\xe2\x80\x9d Common Legislative Encroachments on Executive\nBranch Authority, 13 Op. O.L.C. 248, 252 (1989). The Supreme Court\nheld in Myers that the President\xe2\x80\x99s \xe2\x80\x9cpower of removal\xe2\x80\x9d is \xe2\x80\x9can indispensable aid\xe2\x80\x9d to discharging his \xe2\x80\x9cresponsib[ility] under the Constitution for the\neffective enforcement of the law.\xe2\x80\x9d 272 U.S. at 132\xe2\x80\x9333. And in Morrison\nv. Olson, 487 U.S. 654 (1988), the Court stated that \xe2\x80\x9cMyers was undoubtedly correct in its holding, and in its broader suggestion that there are\nsome \xe2\x80\x98purely executive\xe2\x80\x99 officials who must be removable by the President\nat will if he is to be able to accomplish his constitutional role.\xe2\x80\x9d Id. at 690.\nscribes the presidential appointment power.\xe2\x80\x9d); 1992 Signing Statement at 2005 (objecting\nto such restrictions for the Assassination Records Review Board created by the JFK Act).\n\n22\n\n\x0cMandatory Disclosure of Civil Rights Cold Case Records\n\nThe Act\xe2\x80\x99s removal restrictions, however, interfere with the President\xe2\x80\x99s\ncore constitutional prerogative to decide whether and how to disclose\ninformation subject to executive privilege. The Act inserts into that process a Review Board that answers solely to the President and whose\nmembers can be removed only for specified causes. \xe2\x80\x9cCongress may not\n. . . provide Executive Branch employees with independent authority to\ncountermand or evade the President\xe2\x80\x99s determinations as to when it is\nlawful and appropriate to disclose classified information,\xe2\x80\x9d let alone all\nother types of privileged information. Applicability of the Foreign Intelligence Surveillance Act\xe2\x80\x99s Notification Provision to Security Clearance\nAdjudications by the Department of Justice Access Review Committee, 35\nOp. O.L.C. __, at *8 (June 3, 2011). That is why the Supreme Court\nemphasized the extent of presidential supervision over the General Services Administration when sustaining the constitutionality of legislation\ngiving that agency responsibility for former President Richard M. Nixon\xe2\x80\x99s\nrecords, which included privileged materials. Nixon v. Adm\xe2\x80\x99r, 433 U.S. at\n443\xe2\x80\x9344. Professional archivists\xe2\x80\x99 review of such records \xe2\x80\x9cconstitute[d] a\nvery limited intrusion by personnel in the Executive Branch sensitive to\nexecutive concerns,\xe2\x80\x9d id. at 451, because they were supervised by the\nAdministrator of General Services, who was \xe2\x80\x9chimself an official of the\nExecutive Branch, appointed by the President,\xe2\x80\x9d id. at 441, and expressly\n\xe2\x80\x9csubject to the direction and control of the President,\xe2\x80\x9d 40 U.S.C.\n\xc2\xa7 751(b)(1976).12\nBy purporting to insulate Executive Branch decision-makers exercising\ncritical executive functions from plenary presidential supervision,\nS. 3191\xe2\x80\x99s removal restrictions also materially differ from the few instances where the Supreme Court has upheld restrictions on the President\xe2\x80\x99s\nauthority to remove principal officers. As the Supreme Court reiterated in\n12 To the extent the bill were read to authorize the Review Board to direct Executive\nBranch agencies to re-investigate a cold case, that provision would also involve a core\nexecutive function requiring presidential supervision. See S. 3191, \xc2\xa7 5(i)(1)(B) (authorizing the Review Board to \xe2\x80\x9cdirect a Government office to . . . if necessary investigate the\nfacts surrounding, additional information, records, or testimony from individuals, which\nthe Review Board has reason to believe is required to fulfill its functions and responsibilities under this Act\xe2\x80\x9d). But the better reading of that provision\xe2\x80\x94especially in light of this\nconstitutional concern\xe2\x80\x94is that it merely authorizes the Review Board to direct agencies\nto supply supplemental information so as to facilitate the Review Board\xe2\x80\x99s determinations\nof whether a record is a cold case record or falls within the postponement criteria.\n\n23\n\n\x0c43 Op. O.L.C. __ (Feb. 4, 2019)\n\nFree Enterprise Fund, 561 U.S. at 493, the Court may have upheld forcause limitations on the removal of principal officers in \xe2\x80\x9c\xe2\x80\x98quasilegislative and quasi-judicial\xe2\x80\x99\xe2\x80\x9d bodies. Id. (quoting Humphrey\xe2\x80\x99s Ex\xe2\x80\x99r v.\nUnited States, 295 U.S. 602, 628, 629 (1935)); see also Wiener v. United\nStates, 357 U.S. 349, 355\xe2\x80\x9356 (1958) (holding that Congress could insulate\nmembers of the War Claims Commission from at-will removal because\ntheir work had an \xe2\x80\x9cintrinsic judicial character\xe2\x80\x9d). Yet that rationale does\nnot apply to members of the Review Board, who would be principal\nofficers exercising purely \xe2\x80\x9cexecutive functions.\xe2\x80\x9d Humphrey\xe2\x80\x99s Ex\xe2\x80\x99r, 295\nU.S. at 627; see also Constitutional Separation of Powers, 20 Op. O.L.C.\nat 169\xe2\x80\x9370. The Review Board members\xe2\x80\x99 authority to review and disclose\nconfidential Executive Branch information directly relates to the President\xe2\x80\x99s execution of the laws, and therefore must ultimately be exercised\nonly by officers subject to direct presidential control. Congress may not\nuse removal restrictions on principal officers as an indirect means of\ncompromising the President\xe2\x80\x99s control over this core executive function.\nCf. Morrison, 487 U.S. at 695\xe2\x80\x9396 (allowing \xe2\x80\x9cgood cause\xe2\x80\x9d removal restriction on independent counsel even though she exercised executive\npower, because she was an inferior officer with a narrow ambit); Free\nEnter. Fund, 561 U.S. at 494\xe2\x80\x9395 (emphasizing that Morrison concerned\nthe \xe2\x80\x9cstatus of inferior officers\xe2\x80\x9d and the specific \xe2\x80\x9ccircumstances\xe2\x80\x9d of the\nindependent counsel statute).\nPrevious Presidents have accordingly objected to restrictions on removing officers, especially principal officers. Their signing statements expressed their intention to interpret and implement removal restrictions in a\nmanner consistent with the President\xe2\x80\x99s constitutional authority to supervise the Executive Branch. 13 We advised that the President follow a similar course in addressing S. 3191.\n13 See, e.g., Statement on Signing the Floyd D. Spence National Defense Authorization\nAct for Fiscal Year 2001 (Oct. 30, 2000), 3 Pub. Papers of Pres. William J. Clinton 2379,\n2380 (2000\xe2\x80\x9301) (interpreting a for-cause restriction on removal of the Under Secretary for\nNuclear Security at the Department of Energy to include \xe2\x80\x9ca failure to comply with the\nlawful directives or policies of the President\xe2\x80\x9d in light of the need for presidential supervision over sensitive national security functions); Statement on Signing the Social Security\nIndependence and Program Improvements Act of 1994 (Aug. 15, 1994), 2 Pub. Papers of\nPresident William J. Clinton 1471, 1472 (1994) (noting \xe2\x80\x9csignificant constitutional question\xe2\x80\x9d regarding the removal restriction on \xe2\x80\x9cthe single Commissioner [of the Social\nSecurity Administration] only for neglect of duty or malfeasance\xe2\x80\x9d); cf. Statement on\n\n24\n\n\x0cMandatory Disclosure of Civil Rights Cold Case Records\n\nV.\nFor the reasons set forth above, we concluded that several provisions in\nS. 3191 raise serious constitutional concerns. We thus advised that the\nPresident should issue a signing statement explaining how he would\ninterpret and implement constitutionally problematic provisions. Consistent with this advice, the President issued the January 8, 2019 signing\nstatement upon signing S. 3191 into law.\nSARAH M. HARRIS\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\nSigning the Intelligence Authorization Act, Fiscal Year 1990 (Nov. 30, 1989), 2 Pub.\nPapers of Pres. George Bush 1609, 1610 (1989) (objecting that a requirement that the\nPresident \xe2\x80\x9cimmediately communicate . . . the reasons\xe2\x80\x9d for removing an Inspector General\nwould \xe2\x80\x9cburden [the] exercise\xe2\x80\x9d of \xe2\x80\x9cthe President\xe2\x80\x99s constitutional authority to remove an\nexecutive branch subordinate\xe2\x80\x9d).\n\n25\n\n\x0c'