b'Application of 18 U.S.C. \xc2\xa7 208 to Trustees of\nPrivate Trusts\nAlthough a trustee of a private trust, solely by virtue of his capacity as a trustee, should not be deemed\nto have a personal financial interest in the property of the trust, a trustee of a private trust may have\nsuch an interest under certain circumstances. Further, a trustee of a private trust also should be\nconsidered to be serving in the capacity of a \xe2\x80\x9ctrustee\xe2\x80\x9d of an \xe2\x80\x9corganization\xe2\x80\x9d for purposes of 18 U.S.C.\n\xc2\xa7 208(a).\n\nNovember 2, 2001\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF GOVERNMENT ETHICS\nYou have asked for our opinion whether, under 18 U.S.C. \xc2\xa7 208 (1994), a\ntrustee of a private trust inevitably has a personal financial interest in the trust and\nwhether the trustee of a private trust serves in an \xe2\x80\x9corganization\xe2\x80\x9d within the\nmeaning of section 208(a). We believe that, in general and with the qualifications\ndiscussed in more detail below, a government officer or employee will not have a\npersonal financial interest in a matter, as defined in section 208(a), as a result of\nhis position as trustee of a private trust. We believe, however, that a trustee of a\nprivate trust is a \xe2\x80\x9ctrustee\xe2\x80\x9d serving in an \xe2\x80\x9corganization\xe2\x80\x9d for purposes of section 208(a).\nI. Personal Financial Interest of a Trustee\nYou ask, first, whether a trustee has a personal financial interest under 18\nU.S.C. \xc2\xa7 208 in all particular matters affecting the trust property. Section 208(a)\ndisqualifies an officer or employee of the Executive Branch or any independent\nagency from participating in a particular matter\nin which, to his knowledge, he, his spouse, minor child, general partner, organization in which he is serving as officer, director, trustee,\ngeneral partner or employee, or any person or organization with\nwhom he is negotiating or has any arrangement concerning prospective employment, has a financial interest . . . .\n18 U.S.C. \xc2\xa7 208(a). We have previously noted that \xe2\x80\x9cthe statute recognizes and\ngives effect to two distinct types of disqualifying \xe2\x80\x98financial interest\xe2\x80\x99\xe2\x80\x94personal\nand organizational.\xe2\x80\x9d Memorandum for Fred F. Fielding, Counsel to the President,\nfrom Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re:\nInterpretation of the Financial Interest Requirement of 18 U.S.C. 208 as Applied\nto a Spouse Trustee at 2 (Jan. 6, 1986). Because of this separate treatment by the\nstatute, we concluded that \xe2\x80\x9cCongress did not intend a personal \xe2\x80\x98financial interest\xe2\x80\x99\n\n229\n\n227-329 VOL_25_PROOF.pdf 239\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nin an organization to arise solely from one\xe2\x80\x99s status as trustee of the organization.\xe2\x80\x9d\nId. As we observed, \xe2\x80\x9c[i]ndeed, a contrary conclusion would render entirely\nredundant the express language of section 208 that bars an official\xe2\x80\x99s participation\nin matters affecting the financial interest of an organization in which the official\nserves as a trustee.\xe2\x80\x9d Id. 1 See also Connecticut Nat\xe2\x80\x99l Bank v. Germain, 503 U.S.\n249, 253 (1992) (interpretations of statutes that render language superfluous are\ndisfavored). We adhere to this conclusion. We, therefore, agree with the analysis\nset forth in your March 30, 2001 letter, that:\nIf . . . the trustee has no beneficial interest, receives no fees affected\nby the performance of trust investments, and there are no facts suggesting any potential fiduciary liability as a direct and predictable\nresult of the particular matter, then one would not necessarily find\nany real potential for gain or loss to the trustee personally.\nLetter for Daniel L. Koffsky, Acting Assistant Attorney General, Office of Legal\nCounsel, from Marilyn L. Glynn, General Counsel, Office of Government Ethics\nat 6 (Mar. 30, 2001) (\xe2\x80\x9cGlynn Letter\xe2\x80\x9d). We note that those types of trustee interests\ngiving rise to a personal financial interest on the part of a trustee (e.g., certain fee\narrangements, a beneficial interest in the trust property or potential fiduciary\nliability of the trustee) could be identified by regulation.\nII. Trustees Serving in an Organization\nYour second question is whether the trustee of a private trust serves as \xe2\x80\x9ctrustee\xe2\x80\x9d\n\xe2\x80\x9cin\xe2\x80\x9d an \xe2\x80\x9corganization\xe2\x80\x9d for purposes of section 208(a). You suggest that the term\n\xe2\x80\x9ctrustee\xe2\x80\x9d might best be construed only \xe2\x80\x9cto describe a position on the governing\nbody or board of an organization, particularly, but not exclusively, a non-profit\norganization.\xe2\x80\x9d Glynn Letter at 8. You also suggest that a private trust might not be\nan \xe2\x80\x9corganization.\xe2\x80\x9d Id. at 10-11.\nThe plain and ordinary meaning of the term \xe2\x80\x9ctrustee\xe2\x80\x9d encompasses the trustee\nof a private trust. E.g., Webster\xe2\x80\x99s Third New International Dictionary 2457 (1993)\n(a trustee is \xe2\x80\x9cone to whom something is entrusted: one trusted to keep or administer something\xe2\x80\x9d). You propose an alternative reading under which the term\n\xe2\x80\x9ctrustee\xe2\x80\x9d would be confined to a member of an organization\xe2\x80\x99s board of trustees.\nSuch a reading, you contend, would render \xe2\x80\x9ctrustee\xe2\x80\x9d more compatible with the\nterms that immediately precede it\xe2\x80\x94\xe2\x80\x9cofficer\xe2\x80\x9d and \xe2\x80\x9cdirector\xe2\x80\x9d\xe2\x80\x94both of which\npositions are typically present in organizations that have boards of trustees. Glynn\nLetter at 8-9. We find this argument unpersuasive. The term that immediately\n1\nAs we also noted in that memorandum, this does not mean that \xe2\x80\x9cthere are no conceivable circumstances in which a spouse\xe2\x80\x99s status as a trustee of an organization could in fact give rise to a personal\nfinancial interest, thus triggering the disqualification requirement of section 208.\xe2\x80\x9d Id. at 3 n.2.\n\n230\n\n227-329 VOL_25_PROOF.pdf 240\n\n10/22/12 11:10 AM\n\n\x0cApplication of 18 U.S.C. \xc2\xa7 208 to Trustees of Private Trusts\n\nfollows \xe2\x80\x9ctrustee\xe2\x80\x9d\xe2\x80\x94\xe2\x80\x9cgeneral partner\xe2\x80\x9d\xe2\x80\x94is not typically associated with organizations that have boards of trustees. We therefore find far more compelling your\nalternative suggestion that what these terms have in common is that they identify\npersons who \xe2\x80\x9chave certain fiduciary duties to the organizations in which they\nserve.\xe2\x80\x9d Id. at 8. In any event, we find nothing in the terms \xe2\x80\x9cofficer\xe2\x80\x9d and \xe2\x80\x9cdirector\xe2\x80\x9d\nto suggest that the term \xe2\x80\x9ctrustee\xe2\x80\x9d should be confined to a member of a board of\ntrustees.\nOn the issue whether a private trust is an \xe2\x80\x9corganization,\xe2\x80\x9d we first note that we\nhave long held that a private trust is an \xe2\x80\x9corganization\xe2\x80\x9d for purposes of section 208.\nSee Memorandum for Dudley H. Chapman, Associate Counsel to the President,\nfrom Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: Conflict of Interest Review: H. Gregory Austin at 3 (Nov. 26, 1975) (\xe2\x80\x9cUlman\nMemorandum\xe2\x80\x9d).\nYou correctly point out that 18 U.S.C. \xc2\xa7 18 (1994) defines the term \xe2\x80\x9corganization\xe2\x80\x9d to mean \xe2\x80\x9ca person other than an individual.\xe2\x80\x9d Based on this definition, you\nquestion whether a trust in which the beneficiary is an individual can be an\n\xe2\x80\x9corganization.\xe2\x80\x9d This question, we believe, conflates a trust with the beneficiaries\nof the trust. As the comment to section 2 of the Restatement (Third) of Trusts\n(Tentative Draft No. 1, 1996) explains, \xe2\x80\x9c[i]ncreasingly, modern common law and\nstatutory concepts and terminology tacitly recognize the trust as a legal \xe2\x80\x98entity,\xe2\x80\x99\nconsisting of the trust estate and the associated fiduciary relation between the\ntrustee and the beneficiaries.\xe2\x80\x9d Id. \xc2\xa7 2, cmt. a. In any event, whether or not the trust\nis a legal entity, it is distinct from its beneficiaries. See G. Bogert & G. Bogert,\nLaw of Trusts and Trustees \xc2\xa7 1 (rev. 2d ed. 1984) (\xe2\x80\x9cA trust may be defined as a\nfiduciary relationship in which one person holds a property interest, subject to an\nequitable obligation to keep or use that interest for the benefit of another.\xe2\x80\x9d)\nTherefore, the fact that the beneficiary or beneficiaries may be individuals has no\nbearing on whether the trust satisfies the definition of \xe2\x80\x9corganization\xe2\x80\x9d in section 18.\nAlthough the legal term \xe2\x80\x9cperson\xe2\x80\x9d in isolation is often ambiguous on whether or\nnot it includes unnatural persons (i.e., persons other than individual human\nbeings), the plain terms of section 18 dispel any such ambiguity. In suggesting that\na trust is not \xe2\x80\x9ca person other than an individual\xe2\x80\x9d for purposes of section 208, you\nnote that the Dictionary Act definition of \xe2\x80\x9cperson\xe2\x80\x9d contained in 1 U.S.C. \xc2\xa7 1 does\nnot specifically include \xe2\x80\x9ctrusts.\xe2\x80\x9d We find this omission insignificant in this\ncontext. Section 1, by its very terms, is illustrative, not exhaustive: in identifying\nvarious things that the word \xe2\x80\x9cperson\xe2\x80\x9d \xe2\x80\x9cinclude[s],\xe2\x80\x9d it does not thereby exclude\nother things from qualifying as persons. Moreover, section 1 expressly provides\nthat its definition applies \xe2\x80\x9cunless the context indicates otherwise.\xe2\x80\x9d 1 U.S.C. \xc2\xa7 1\n(2000). Because inclusion of a private trust within the meaning of the term\n\xe2\x80\x9corganization\xe2\x80\x9d would promote the conflict of interest objectives of section 208, we\nsee no reason to disturb our longstanding position that a private trust is an\n\xe2\x80\x9corganization.\xe2\x80\x9d\n\n231\n\n227-329 VOL_25_PROOF.pdf 241\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nYou also raise the question whether, consistent with the language of section 208, a trustee can fairly be said to be serving \xe2\x80\x9cin\xe2\x80\x9d a trust. Glynn Letter at 9,\n10. You suggest that the awkwardness of this phrasing supports the conclusion that\nthe trustee of a private trust is not a \xe2\x80\x9ctrustee\xe2\x80\x9d and that a private trust is not an\n\xe2\x80\x9corganization\xe2\x80\x9d for purposes of section 208. We do not believe, however, that it is\nany more awkward to speak of a trustee serving \xe2\x80\x9cin\xe2\x80\x9d a trust than to speak of\xe2\x80\x94to\nuse two examples indisputably within the scope of section 208\xe2\x80\x94a general partner\nserving \xe2\x80\x9cin\xe2\x80\x9d a general partnership or an officer serving \xe2\x80\x9cin\xe2\x80\x9d a corporation. We\ntherefore do not believe that the preposition \xe2\x80\x9cin\xe2\x80\x9d sheds meaningful light on the\nterms \xe2\x80\x9ctrustee\xe2\x80\x9d and \xe2\x80\x9corganization.\xe2\x80\x9d\nFor the above reasons, we conclude that a trustee of a private trust is a \xe2\x80\x9ctrustee\xe2\x80\x9d\nserving in an \xe2\x80\x9corganization\xe2\x80\x9d for purposes of section 208(a).\nWe believe that the courts would come to the same conclusion that we do. The\nSupreme Court has explained that \xe2\x80\x9cwe begin with the understanding that Congress\n\xe2\x80\x98says in a statute what it means and means . . . what it says there,\xe2\x80\x99\xe2\x80\x9d Hartford\nUnderwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (quoting\nConnecticut Nat\xe2\x80\x99l Bank v. Germain, 503 U.S. 249, 254 (1992)), and that, in\nconstruing a statutory provision, \xe2\x80\x9c[t]he plain meaning of legislation should be\nconclusive, except in the \xe2\x80\x98rare cases [in which] the literal application of a statute\nwill produce a result demonstrably at odds with the intentions of its drafters,\xe2\x80\x99\xe2\x80\x9d\nUnited States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (alteration in\noriginal) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).\nFor the reasons discussed above, a court would conclude that reading the terms\n\xe2\x80\x9ctrustee\xe2\x80\x9d and \xe2\x80\x9corganization\xe2\x80\x9d to include the trustee of a private trust accords those\nterms their plain meaning and is neither absurd nor in conflict with Congress\xe2\x80\x99s\nobjective in enacting section 208(a).\nEven if a court were to find that the statutory language, context, and purpose\nwere insufficient to enable it to determine the meaning of the terms \xe2\x80\x9corganization\xe2\x80\x9d\nand \xe2\x80\x9ctrustee,\xe2\x80\x9d its conclusion would not change. Where the language of a term\ncontained in a statutory provision is ambiguous, courts may look to the legislative\nhistory of that provision, Green v. Bock Laundry Machine Co., 490 U.S. 504, 511\n(1989), and construe the provision in a manner that furthers the purpose of the\nstatute, Watt v. Western Nuclear, Inc., 462 U.S. 36, 56 (1983). We have previously\nexamined the legislative history of section 208 for indications as to what types of\nentities Congress intended to encompass within that term. See, e.g., Applicability\nof 18 U.S.C. \xc2\xa7 208 to the Federal Communications Commission\xe2\x80\x99s Representative\non the Board of Directors of the Telecommunications Development Fund, 21 Op.\nO.L.C. 96, 98-99 (1997). Here, a court would find sufficient legislative history to\nguide it in the proper construction of the term \xe2\x80\x9corganization.\xe2\x80\x9d\nIn analyzing the precise issue of whether section 208\xe2\x80\x99s use of the term \xe2\x80\x9corganization\xe2\x80\x9d includes the trustee of a private trust, we previously concluded that the\nlegislative history shows that section 208 does apply to the trustee of a private\n\n232\n\n227-329 VOL_25_PROOF.pdf 242\n\n10/22/12 11:10 AM\n\n\x0cApplication of 18 U.S.C. \xc2\xa7 208 to Trustees of Private Trusts\n\ntrust. Ulman Memorandum at 3. In the Ulman Memorandum, we observed that 18\nU.S.C. \xc2\xa7 434, the predecessor \xe2\x80\x9cconflict of interest\xe2\x80\x9d provision to section 208, was\nviewed as being broad enough to include an estate even though it spoke in terms of\na \xe2\x80\x9cbusiness entity,\xe2\x80\x9d and therefore we viewed it as also capable of embracing a\ntestamentary trust. Id. at 2 (citing B. Manning, Federal Conflict of Interest\nLaw 118 (1964)). We noted the absence of any indication that the use of the term\n\xe2\x80\x9corganization\xe2\x80\x9d in section 208 was intended to narrow the scope of the earlier\nprovision. We also noted that one of the primary substantive changes made in\nenacting section 208 in 1962 was to remove the references to \xe2\x80\x9cbusiness\xe2\x80\x9d or\n\xe2\x80\x9ccorporation\xe2\x80\x9d that were contained in section 434, thereby making it clear that the\nnew section restricts the activities of employees who are trustees or officers in\nnon-profit corporations or foundations not engaged in commercial activities. Id.\nat 3. We then concluded that \xe2\x80\x9c[t]he fiduciary responsibilities of . . . [a] trustee for a\nprivate trust are analogous to those of an officer in a non-profit organization and\ncould cause the same kind of divided loyalty on governmental policy questions\nthat section 208 was intended to prevent.\xe2\x80\x9d Id.\nThe final point of our 1975 Ulman Memorandum was that, in his analysis of the\nproposed bill before Congress in 1961, Nicholas Katzenbach, then the Assistant\nAttorney General for the Office of Legal Counsel, asserted that section 208, in its\nsubstantive prohibitions, was \xe2\x80\x9calmost the counterpart\xe2\x80\x9d of section 3 of H.R. 3050,\nwhich was the proposed bill based on recommendations prepared by the New\nYork City Bar Association. Ulman Memorandum at 3 (citing Federal Conflict of\nInterest Legislation: Hearings Before the Antitrust Subcomm. of the House Comm.\non the Judiciary, 87th Cong. (1961) (\xe2\x80\x9cHouse Hearings\xe2\x80\x9d)). We regarded this as\nsignificant because section 3 of H.R. 3050 contained language making its prohibition expressly applicable to a government employee who was the trustee of an\nordinary trust. Id. (citing House Hearings at 6-7). Section 3 of H.R. 3050 provided\nthat:\nNo Government employee shall participate in a transaction involving\nthe Government in the consequences of which he has a substantial\neconomic interest of which . . . to his actual knowledge, any of the\nfollowing persons has a direct and substantial economic interest . . .\n(3) Any person of which he is an officer, director, trustee, partner, or\nemployee . . . .\nHouse Hearings at 7 (emphasis added). \xe2\x80\x9cPerson\xe2\x80\x9d was defined in section 2(h)(i)(2)\nof that bill as including any \xe2\x80\x9ctrust.\xe2\x80\x9d House Hearings at 6. Furthermore, that the\ndefinition of \xe2\x80\x9cperson\xe2\x80\x9d listed \xe2\x80\x9cindividuals\xe2\x80\x9d and \xe2\x80\x9ctrusts\xe2\x80\x9d as distinct categories of\n\xe2\x80\x9cperson\xe2\x80\x9d demonstrates an assumption on the part of the drafters of that legislation\nthat a \xe2\x80\x9ctrust\xe2\x80\x9d was something different from an \xe2\x80\x9cindividual.\xe2\x80\x9d Compare H.R. 3050,\n\xc2\xa7 2(h)(i)(1) to id. \xc2\xa7 2(h)(i)(2); see House Hearings at 6.\n\n233\n\n227-329 VOL_25_PROOF.pdf 243\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nMoreover, in asserting that section 208, \xe2\x80\x9cin its substantive prohibitions is\nalmost the counterpart of section 3 of H.R. 3050,\xe2\x80\x9d Assistant Attorney General\nKatzenbach explained his use of the term \xe2\x80\x9calmost\xe2\x80\x9d by adding the qualification\n\xe2\x80\x9cwith the exception that under the latter bill a \xe2\x80\x98substantial economic interest\xe2\x80\x99\nwould be defined by Presidential regulations and the President could provide for\nexemptions.\xe2\x80\x9d House Hearings at 41. This distinction has nothing to do with the\nscope of the term \xe2\x80\x9corganization\xe2\x80\x9d or \xe2\x80\x9cperson.\xe2\x80\x9d\nMr. Katzenbach\xe2\x80\x99s view was communicated again to Congress in a letter he\nwrote, as Deputy Attorney General, to Senator Henry Jackson, the chairman of the\nSenate Armed Services Subcommittee examining divestment of securities by\ncivilians nominated to statutory positions in the Department of Defense. Deputy\nAttorney General Katzenbach concluded that\nonly in an exceptional case would a financial interest of a spouse or\nchild be deemed to be a disqualifying financial interest within the\npurview of section 208. Ownership by a spouse of a controlling\ninterest in a corporation transacting business with the Department of\nDefense could not, perhaps, be ignored. Also, in a situation in which\nthe nominee exercises legal control over the property of the spouse,\nthe interest of the spouse could be considered a financial interest\nwithin the contemplation of section 208 unless excluded by the\nexception of nonsubstantial interests.\nConflicts of Interest: Hearing on H.R. 8140 Before the Senate Comm. on the\nJudiciary, 87th Cong. 98 (1962) (\xe2\x80\x9cSenate Hearings\xe2\x80\x9d) (emphasis added). In\nresponding to Senator Jackson\xe2\x80\x99s inquiry concerning when a spouse\xe2\x80\x99s property\ninterest would be considered to fall within scope of section 208, Deputy Attorney\nGeneral Katzenbach\xe2\x80\x99s explanation specifically relies on a trustee-like relationship\nbetween the government official and the property at issue as the type of relationship that would fall within the ambit of the statute.2\nMoreover, including the trustee of a private trust within the scope of section 208 is consistent with, and furthers the purpose of, the Act. As one of the\nauthors of the bill passed by the House, Representative John V. Lindsay, explained\nin testimony before the Senate Judiciary Committee, the Act\xe2\x80\x99s purposes included\nensuring that \xe2\x80\x9c[p]ersons occup[y]ing a position inside Government must not be\n\n2\nAlthough the Supreme Court has cautioned that \xe2\x80\x9c[w]e ought not to attribute to Congress an\nofficial purpose based on the motives of a particular group that lobbied for or against a certain\nproposal,\xe2\x80\x9d Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 120 (2001), in this case the statements\nwere made by the Department of Justice, which was involved in drafting and sponsoring the legislation\nin question and was testifying in that capacity at the time. In Circuit City, the statement at issue had\nbeen made by a private special interest group that was criticizing a particular provision of the proposed\nlegislation. Id.\n\n234\n\n227-329 VOL_25_PROOF.pdf 244\n\n10/22/12 11:10 AM\n\n\x0cApplication of 18 U.S.C. \xc2\xa7 208 to Trustees of Private Trusts\n\nallowed to help an individual or entity on the outside, where the latter is seeking to\nmake the wheels of government move in a particular way.\xe2\x80\x9d Senate Hearings at 41.\nThe policy behind such a concern applies to the trustee of a private trust where his\ndecision, as a government official or employee, could affect the value or profitability of the trust assets to which he owes a fiduciary duty. As the Supreme Court\nhas explained:\nTo deter the trustee from all temptation and to prevent any possible\ninjury to the beneficiary, the rule against a trustee dividing his loyalties must be enforced with \xe2\x80\x9cuncompromising rigidity.\xe2\x80\x9d A fiduciary\ncannot contend \xe2\x80\x9cthat, although he had conflicting interests, he served\nhis masters equally well or that his primary loyalty was not weakened by the pull of his secondary one.\xe2\x80\x9d\nNLRB v. Amax Coal Co., 453 U.S. 322, 329-30 (1981) (citations omitted).\nTherefore, even if a court were to look to the legislative history of the Act, we\nbelieve that it would hold that trustees of private trusts are included within the\nscope of the provision prohibiting officers and employees of the federal government from participating in matters in which an organization in which they serve\nhas a financial interest.\nIII. Conclusion\nAlthough a trustee of a private trust, solely by virtue of his capacity as a trustee,\nshould not be deemed to have a personal financial interest in the property of the\ntrust, a trustee of a private trust may have such an interest under certain circumstances. Further, a trustee of a private trust also should be considered to be serving\nin the capacity of a \xe2\x80\x9ctrustee\xe2\x80\x9d of an \xe2\x80\x9corganization\xe2\x80\x9d for purposes of 18 U.S.C.\n\xc2\xa7 208(a).\nM. EDWARD WHELAN III\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n235\n\n227-329 VOL_25_PROOF.pdf 245\n\n10/22/12 11:10 AM\n\n\x0c'


b'Validity of the Food, Conservation, and Energy Act of 2008\nWhere a title in the version of the Food, Conservation, and Energy Act of 2008 passed by both houses\nof Congress was inadvertently omitted from the enrolled bill that was presented to and vetoed by the\nPresident, the version of the bill presented to the President became law upon Congress\xe2\x80\x99s successful\noverride of the President\xe2\x80\x99s veto.\n\nMay 23, 2008\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF MANAGEMENT AND BUDGET\nYou have asked whether the Food, Conservation, and Energy Act of 2008,\nH.R. 2419, has legal effect notwithstanding a significant discrepancy between the\nversion of the bill passed by both houses of Congress and the enrolled bill\npresented to the President. We understand that a title III was included in the\nversion of the bill passed by both houses of Congress but was inadvertently\nomitted from the enrolled bill that was attested to by the Speaker of the House and\nthe President pro tempore of the Senate and presented to the President. The\nPresident vetoed the bill that was presented to him, and both houses of Congress\nthen voted successfully to override the President\xe2\x80\x99s veto. We conclude that the bill\nas presented to the President (i.e., not including title III) has now become law.\nThat conclusion finds substantial support in the case law as well as Executive\nBranch practice. The Supreme Court has long held that a statute is not invalid merely\nbecause there is a difference between the text, as contained in the enrolled bill signed\nby the presiding officers of the respective houses of Congress and approved by the\nPresident, and the text passed by Congress as shown by its official records. In\nMarshall Field & Co. v. Clark, 143 U.S. 649 (1892), importers protesting duties\nimposed by the Tariff Act of 1890 argued that the Tariff Act was not good law\nbecause documentary evidence showed that a part of the bill passed by both houses\nof Congress was missing from the enrolled bill presented to and signed by the\nPresident. Id. at 668\xe2\x80\x9369. The Court rejected that argument and held that attestations\nof \xe2\x80\x9cthe two houses, through their presiding officers\xe2\x80\x9d should be deemed \xe2\x80\x9cconclusive\nevidence that [a bill] was passed by Congress.\xe2\x80\x9d Id. at 672\xe2\x80\x9373. Recent cases confirm\nthat Marshall Field remains good law. See, e.g., Pub. Citizen v. U.S. Dist. Ct. for\nD.C., 486 F.3d 1342 (D.C. Cir. 2007) (enrolled bill rule of Marshall Field precluded\ninquiry into whether Deficit Reduction Act of 2005 satisfied bicameralism and\npresentment requirements of Constitution); OneSimpleLoan v. Sec\xe2\x80\x99y of Educ., 496\nF.3d 197, 198 (2d Cir. 2007) (\xe2\x80\x9ccourt may not look beyond the version of the bill\nauthenticated by the signatures of the presiding officers of the House of Representatives and Senate\xe2\x80\x9d).\nThis Office adheres to the rule in Marshall Field. In 1986, OMB asked for our\nview on the validity of an appropriations bill when it was discovered that the\nenrolled bill signed by the President omitted several sections that were passed by\nboth houses but dropped as a result of clerical error during the enrolling process.\n\n77\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nWe advised that the omitted portions were not law but that the signed bill,\nexcluding the omitted provisions, had become law under the rule set out in\nMarshall Field. See Memorandum for the Files, from Douglas W. Kmiec,\nAssistant Attorney General, Office of Legal Counsel, Re: Omission of Section\nfrom Enrolled Continuing Resolution at 3 (Nov. 13, 1986) (\xe2\x80\x9cKmiec Memorandum\xe2\x80\x9d). We believe that Marshall Field and our prior analysis are fully applicable\nhere, where the President has vetoed the enrolled bill that was presented to him\nand both houses of Congress have voted by the requisite two-thirds majorities to\noverride the President\xe2\x80\x99s veto of the enrolled bill. The Constitution provides that if\nthe President has vetoed an enrolled bill by returning \xe2\x80\x9cit\xe2\x80\x9d with his objections to the\nhouse in which \xe2\x80\x9cit\xe2\x80\x9d originated, that house may \xe2\x80\x9creconsider it\xe2\x80\x9d; if after reconsideration, that house votes by a two-thirds majority to \xe2\x80\x9cpass the Bill,\xe2\x80\x9d \xe2\x80\x9cit\xe2\x80\x9d shall be sent\nto the other house, and if the second house also approves it by a two-thirds\nmajority vote, \xe2\x80\x9cit\xe2\x80\x9d shall become law. U.S. Const. art. I, \xc2\xa7 7, cl. 2. In each case, we\ntake the \xe2\x80\x9cit\xe2\x80\x9d or the \xe2\x80\x9cBill\xe2\x80\x9d to refer to the enrolled bill as it was presented to the\nPresident. That interpretation gives full effect to the official enrolling process of\nthe Congress and maintains consistency between the President\xe2\x80\x99s consideration of\nthe enrolled bill, as presented to him, and the House and Senate\xe2\x80\x99s consideration of\nthe President\xe2\x80\x99s veto decision and each house\xe2\x80\x99s determination whether to override\nthat decision. It also maintains consistency with the principle laid down in the\nMarshall Field case.\nThus, it is the enrolled version of the bill presented to the President that becomes law either by the President\xe2\x80\x99s signature or by successful congressional\noverride of the President\xe2\x80\x99s veto. See Kmiec Memorandum at 3 (\xe2\x80\x9cit is clear from\nField v. Clark that the Continuing Resolution signed by the President . . . remains\nvalid,\xe2\x80\x9d and that \xe2\x80\x9cthe omitted portions are not deemed to be part of the signed bill\xe2\x80\x9d)\n(emphasis added); Pub. Citizen, 486 F.3d at 1349\xe2\x80\x9350. That view is consistent with\nExecutive Branch and congressional practice. See Statement by President Ronald\nW. Reagan upon Signing H.J. Res. 738, 22 Weekly Comp. Pres. Doc. 1496, 1496\n(Oct. 30, 1986) (\xe2\x80\x9cThe provisions I signed into law . . . remain the law of the land.\nThe Supreme Court has held that transmission errors of this sort do not in any way\nvitiate the legal effect of a President\xe2\x80\x99s signature. Accordingly, that which was\nsigned became law.\xe2\x80\x9d); Valerie Heitshusen, Cong. Research Serv., Enrollment of\nLegislation: Relevant Congressional Procedures, RL 34480, at CRS-6 (May 7,\n2008) (in rare instances where there is a discrepancy between the enrolled bill and\nthe versions passed by both houses, the \xe2\x80\x9cenacted\xe2\x80\x9d version is the \xe2\x80\x9cenrolled\xe2\x80\x9d text).\nFor these reasons, we conclude that the text of the enrolled bill presented to the\nPresident became law upon Congress\xe2\x80\x99s successful override of the President\xe2\x80\x99s veto,\nand the Executive Branch may lawfully make the expenditures authorized therein.\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n78\n\n\x0c'


b'Voluntariness of Renunciations of Citizenship\nUnder 8 U.S.C. \xc2\xa7 1481(a)(6)\nA renunciation o f citizenship w ould likely not be held involuntary by a court solely because it\nwas undertaken as part of an agreem ent whereby federal prosecutors agreed not to proceed\nwith denaturalization and deportation proceedings if the subjects of the investigation agreed\nto renounce their U.S. citizenship. In the analogous context of plea bargaining in criminal\ncases, courts have consistently held that the threat of greater punishment by prosecutors does\nnot by itself deprive the defendant o f the ability to voluntarily choose to plea bargain, absent\nother indicia o f improper coercion. In the absence of facts indicating further government\ncoercion, a court would likely look to principles applicable to the determination of voluntariness\nin crim inal plea bargains and conclude that renunciation o f citizenship pursuant to the\nagreem ents at issue did not violate the constitutional requirement of voluntariness per se.\n\nSeptember 27, 1984\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nD\n\nepa rtm en t o f\n\nA c t in g L e g a l A d v is o r\nSta te\n\nThis responds to your request for our opinion whether renunciations of\nUnited States citizenship under 8 U.S.C. \xc2\xa7 1481(a)(6)1 by two naturalized\nUnited States citizens who are alleged to have been involved in Nazi persecu\xc2\xad\ntion are voluntary. These individuals, Mr. A and Mr. B, have formally re\xc2\xad\nnounced their United States citizenship pursuant to agreements negotiated with\nthe Office of Special Investigations of the Department of Justice (OSI), whose\nmission is to identify, denaturalize, and deport persons who entered the United\nStates subsequent to World War II and who obtained United States citizenship\nby concealing their involvement in Nazi persecution. Under those agreements,\nOSI agreed not to institute denaturalization and deportation proceedings if\nthose individuals left the United States and formally renounced their citizenship.2\n1Section 1481(a)(6) provides in part th at a national o f the United States may file a \xe2\x80\x9cformal renunciation of\nnationality before a diplom atic or co n su lar officer o f the U nited States in a foreign state, in such form as may\nbe prescribed by the Secretary of State.\xe2\x80\x9d\n2 Y our m em orandum also mentioned a third individual, Mr. C, w ho form ally renounced his U nited States\ncitizen sh ip after O SI instituted denaturalization proceedings. His renunciation does not present the same\nunderlying issue that is common to th e renunciations by M r. A and M r. B, because OSI did not negotiate or\ne n te r into any agreem ent in connection Mr. C \xe2\x80\x99s departure from the United States and his subsequent\nrenunciation o f citizenship. You have sin ce informed us th at the denaturalization proceedings against M r C\nhave been d ism issed, and that OSI m ad e representations to the court in connection w ith that dism issal, with\nyour agreem ent, that Mr. C \xe2\x80\x99s renunciation was considered to be voluntary. We therefore do not address Mr.\nC \xe2\x80\x99s case here.\n\n220\n\n\x0cYou are concerned that the formal renunciations of citizenship made by Mr.\nA and Mr. B may not meet the constitutional requirement that expatriation be a\nvoluntary act,3 because of the direct and substantial involvement of the United\nStates Government in encouraging and facilitating the renunciations. Accord\xc2\xad\ningly, you have asked this Office to review the background of these cases and\nto advise you whether the renunciations would be considered voluntary under\napplicable law. We understand that OSI and the Criminal Division of this\nDepartment have agreed to our consideration of these cases.\nWe believe it would be inappropriate, and indeed impossible, for this Office\nto provide you with a definitive answer as to whether these particular renuncia\xc2\xad\ntions were in fa ct voluntary. We obviously cannot undertake any independent\ninvestigation of the underlying facts, and are not competent to resolve any\nfactual disputes or contradictions that could conceivably arise in the course of\nsuch an investigation. Accordingly, our advice here focuses on the underlying\nlegal standards and precedents that we believe should be applied to determine\nwhether these renunciations were voluntary, and how we believe a court would\napply those standards, based on the facts presented to us.\nThe question we address is whether, under applicable precedent, a court\nwould find that the renunciations of citizenship pursuant to agreements with\nUnited States prosecutors are voluntary, in light of the influence brought to\nbear upon those individuals by the United States Government and the arguably\ncoercive effect of the threatened denaturalization and deportation proceedings.\nFor the reasons set forth below, we believe that a court would not conclude that\na formal renunciation of citizenship is involuntary solely because it was under\xc2\xad\ntaken pursuant to such an agreement. We do not believe that the involvement of\nUnited States prosecutors in influencing and facilitating such decisions neces\xc2\xad\nsarily amounts to duress or coercion that would vitiate the voluntariness of the\nchoice faced by those individuals, i.e., whether to renounce citizenship or to\nface the denaturalization and deportation proceedings. In reaching this conclu\xc2\xad\nsion, we find highly relevant judicial consideration in the criminal context of\nsimilar voluntariness questions raised by plea bargaining. The analogy is not\nexact, but we believe it is apt, and the reasoning used by the courts in evaluat\xc2\xad\ning the voluntariness of plea bargains is quite similar to that used in determin\xc2\xad\ning the voluntariness of expatriating acts under 8 U.S.C. \xc2\xa7 1481.\nWe believe that circumstances could arise in which a renunciation of citizen\xc2\xad\nship pursuant to an agreement by the United States Government not to institute\ndenaturalization and deportation proceedings could be considered involuntary\nby the courts. If, for example, the prosecutors used threats of physical or mental\nintimidation, materially misrepresented the basis for and consequences of the\nagreement, withheld material evidence, or refused to allow the individual the\nassistance of counsel in meetings with prosecutors, the resulting renunciation\nof citizenship might well be considered by the courts to be involuntary. Simi\xc2\xad\nlarly, if the individual was not competent to understand the terms of the\n3 See Afroyim v. Rusk. 387 U.S. 253 <1967); Perkins v. Elg. 307 U S. 325 (1939).\n\n221\n\n\x0cagreement and the consequences of his actions, or was not informed of the\nnature of the charges against him and of the consequences of his actions, his\nrenunciation could well be considered to be involuntary. As far as we are\naware, the Mr. A and Mr. B cases present none of these particular circumstances,\nand therefore we believe a court would find the renunciations to be voluntary.\nI.\n\nOSI was created by Attorney General Civiletti in 1979 to consolidate en\xc2\xad\nforcement of immigration statutes and policy against suspected Nazi persecu\xc2\xad\ntors.4 The usual practice of OSI has been to institute denaturalization proceed\xc2\xad\nings under 8 U.S.C. \xc2\xa7 1451(a)5 if an investigation reveals that a Nazi persecutor\nobtained United States citizenship fraudulently or illegally, and then to insti\xc2\xad\ntute deportation proceedings under 8 U.S.C. \xc2\xa7 1251(a)(19) upon successful\ncompletion of denaturalization proceedings.6 This process inevitably takes\nsubstantial time, effort, and resources, and its success depends in general on\nfinding another country that is willing to accept the deported individual.7\n4 T he A ttorney G eneral assigned to O SI \xe2\x80\x9cthe prim ary responsibility for detecting, investigating, and, where\nappropriate, taking legal action to deport, denaturalize, o r prosecute any individual who was admitted as an\nalien into o r becam e a naturalized citizen o f the U nited States and who had assisted the Nazis by persecuting\nany person because o f race, religion, n ational origin, or political opinion.\xe2\x80\x9d See O rder o f the A ttorney G eneral,\nT ran sfer o f Functions o f the Special L itigation U nit W ithin th e Im m igration and N aturalization Service o f the\nD epartm ent o f Justice to the Criminal D ivision o f the D epartm ent o f Justice, No. 851-79 (Sept. 4, 1979).\n5 U nder 8 U .S.C . \xc2\xa7 1451(a), a certificate o f naturalization m ay be cancelled if it was \xe2\x80\x9cillegally procured or\n. . . procured by concealm ent o f a m aterial fact o r by w illful m isrepresentation." Cases against alleged Nazi\npersecutors have been b rought both on th e basis that citizenship was procured \xe2\x80\x9cillegally,\xe2\x80\x9d see Fedorenko v.\nUnited States, 449 U.S. 490 (1981), and o n the basis that the individual m ade material m isrepresentations or\nconcealed facts about his association a n d involvem ent w ith N azi activities, see, e.g., Artukovic v. INS , 693\nF.2d 894 (9th C ir. 1982); United States v. Ryan, 360 F. Supp. 265 (E.D .N.Y . 1973). In denaturalization cases\nthe governm ent bears the burden of p ro o f to establish by \xe2\x80\x9cc le a r and convincing\xe2\x80\x9d evidence that \xe2\x80\x9ccitizenship\nw as not conferred in accordance with stric t legal requirem ents." Schneiderman v. United States, 320 U.S.\n118, 123 (1943).\n6 T h at section, added by Pub. L. N o. 9 5 -5 4 9 , \xc2\xa7 103, 92 Stat. 2065, 2065-66 (1978), authorizes the\ndeportation o f any alien who,\nduring the period beginning on M arch 23, 1933, and ending on M ay 8, 1945, under the direction\no f, or in association w ith \xe2\x80\x94\n(A ) the N azi government in G erm any,\n(B ) any governm ent in any a re a occupied by the m ilitary forces o f the Nazi governm ent of\nG erm any,\n(C ) any g overnm ent established with the assistance or cooperation o f the Nazi government\no f G erm any, o r\n(D ) any governm ent which w as an ally o f the N azi governm ent o f Germany,\nordered, incited, assisted, or otherw ise participated in the persecution o f any person because of\nrace, religion, national origin, or p o litical opinion.\n8 U .S.C . \xc2\xa7 1251(a)(19).\n7 U nder 8 U .S.C . \xc2\xa7 1253, \xe2\x80\x9c [t]he deportation o f an alien in the United States . . . shall be directed by the\nA ttorney G eneral to a country promptly designated by the alien if that country is willing to accept him into its\nterritory.*\xe2\x80\x99 If the designated country does not agree to accept the individual into its territory, deportation o f\nthe alien \xe2\x80\x9cshall be d irected to any country o f which such alien is a subject, national, or citizen if such country\nis w illin g to accep t him into its territory.\xe2\x80\x9d Only if that governm ent also fails to advise the Attorney General\no r the alien w h eth er it w ill accept the alien (or advises th at it will not), m ay the Attorney G eneral exercise\ndiscretio n to d ep o rt the alien elsewhere, in accordance with a specified list o f countries (country from which\nalien entered the U nited States, country in which he was b o m , any country in which he resided prior to\ne n terin g the country from w hich he entered the U nited States, etc.). Id. \xc2\xa7 1253(a).\n\n222\n\n\x0cOSI has informed us that, in accordance with its standard practice, it con\xc2\xad\nducted investigations of Mr. A and Mr. B that included questioning of those\nindividuals under oath by OSI attorneys. After OSI completed its investiga\xc2\xad\ntions, it contacted lawyers for Mr. A and Mr. B and advised them that their\nrespective clients were serious targets for denaturalization and deportation\nbecause of their wartime activities on behalf of the Nazi regime. According to\nOSI, after reviewing the evidence against their clients the lawyers for those\nindividuals asked OSI how potential litigation could be avoided. They were\nadvised that OSI would refrain from litigating only if it could secure all the\nrelief to which it would be entitled through denaturalization and deportation\nproceedings.\nAfter further discussions between OSI and counsel for Mr. A and Mr. B,\nseparate agreements were reached and executed by Mr. A and by Mr. B. Each\nagreement was also executed by their respective counsel, and by representa\xc2\xad\ntives of OSI and the Criminal Division.\nThe two agreements differ slightly in their terms, but their essential elements\nare the same. In the agreements, Mr. A and Mr. B recited that they are familiar\nwith the allegations made against them by OSI, that they are subject to denatu\xc2\xad\nralization and deportation, and that they were involved in Nazi activities. Both\nagreed permanently to depart the United States, and to renounce formally their\nUnited States citizenship before an appropriate United States official abroad.\nThey further consented to the entry of orders of denaturalization and deporta\xc2\xad\ntion if they failed to comply with the terms of the agreement, and waived any\nright to apply for discretionary relief, appeal, or any other procedure that would\nhave the effect of reviewing or contesting either the agreement itself or any\norder of denaturalization or deportation entered pursuant to the agreement.\nEach agreement recites expressly that it is entered into \xe2\x80\x9cfreely and voluntarily\nupon consultation with counsel,\xe2\x80\x9d that the agreement had been personally\nreviewed and discussed with counsel, and that the signatory is not, and has not\nbeen, \xe2\x80\x9cunder duress or compulsion of any kind.\xe2\x80\x9d OSI has informed us that both\nMr. A and Mr. B acknowledged in the presence of OSI representatives that they\nunderstood the terms of the agreements and the consequences of their actions.\nFor its part, OSI agreed not to commence any litigation seeking denaturaliza\xc2\xad\ntion or deportation against Mr. A and Mr. B and, in accordance with its existing\npolicy, not to commence litigation seeking the revocation of United States\ncitizenship of any family member whose citizenship was derived from the\nsubject. The agreements further recite that \xe2\x80\x9c[t]he United States recognizes that\xe2\x80\x9d\nif the subject complies fully with the terms of the agreement, \xe2\x80\x9cthere is no basis\nunder U.S. law for limiting in any way [the] receipt of Social Security benefits.\xe2\x80\x9d8\n8 The agreem ent reached with Mr. A recites only that there would be \xe2\x80\x9cno basis\xe2\x80\x9d for lim iting receipt of\nSocial Security benefits; the agreem ent reached w ith Mr. B recites that there w ould be no basis for limiting\nthe receipt o f \xe2\x80\x9cfederal retirem ent, health care, and/or Social Security benefits.\xe2\x80\x9d We do not read these\nprovisions o f the agreem ents to constitute a representation by OSI, on behalf o f the United States G overn\xc2\xad\nment, that no proceedings w ould be instituted against Mr. A and Mr. B to lim it the receipt o f such benefits. In\nfact, we would have some question about O SI\xe2\x80\x99s authority to m ake such prom ises. W e interpret the provision\nContinued\n\n223\n\n\x0cIn accordance with these agreements, Mr. A and Mr. B have executed formal\noaths of renunciation, coincidentally both before United States consular offic\xc2\xad\ners in the Federal Republic o f Germany. In both cases, they were counseled by\nthose officers as to the seriousness and significance of a renunciation of\ncitizenship, and were given the opportunity to reconsider their decisions, as\nrequired by applicable State Department procedures.9 Each also executed a\n\xe2\x80\x9cStatement of Understanding,\xe2\x80\x9d reciting that he was exercising his rights of\nrenunciation voluntarily.10 In addition, Mr. B submitted a separate written\n\xe2\x80\x9cDeclaration\xe2\x80\x9d stating that he was renouncing pursuant to an agreement with OSI.\nIn each case, the responsible consular officer raised questions with the State\nDepartment as to whether the renunciations may be considered voluntary,\nalthough they understood that under State Department regulations they were\nrequired to allow Mr. A and Mr. B to execute the oaths of renunciation. See\nsupra note 9. The consular officer who accepted Mr. A\xe2\x80\x99s renunciation reported\nthat Mr. A informed him he was renouncing his citizenship because of the\nagreement with OSI, and that Mr. A offered a statement that \xe2\x80\x9c[b]ecause I did\nnot fully disclose the circumstances of my previous activities that would have\naffected my naturalization, I signed an agreement to avoid a hearing and\n8 (. . . continued)\nrather to reflect O S I\xe2\x80\x99s understanding that under applicable federal law s and regulations a renunciation of\ncitizen sh ip w ould not affect entitlem ent to receipt o f federal benefits accrued prior to that renunciation. We\nexpress no view as to the correctness o f that legal conclusion.\n9 T he State D ep artm en t\xe2\x80\x99s Foreign A ffairs M anual (FAM ) sets forth the following procedure for acceptance\no f form al oaths o f renunciation:\nA fter the o fficer has verified th a t a would-be renunciant does possess the United States national\xc2\xad\nity w hich he seeks to surrender, he shall have the w ould-be renunciant read or have read to him,\nin the language he understands b est and in the presence o f the consular officer and tw o w itnesses\nthoroughly conversant in that language, the Statem ent o f U nderstanding set forth [elsewhere in\nthe FA M ]. T he consular officer, in the presence o f the w itnesses, should explain in detail all of\nthe consequences flowing from the intended renunciation. This m ust be done in every case.\nThe w ould-be renunciant should execute and sign the Statem ent in duplicate, under oath, in the\nlanguage he understands best in the presence o f the consular officer and two witnesses.\n*\n\n*\n\n*\n\nIn every case, the officer should suggest to the person that he defer the act o f renunciation for a\nperiod to perm it further reflection on the gravity and consequence o f his contem plated a c t . . . . In\nno case, how ever, shall a U nited States citizen be denied the right to take the oath o f renuncia\xc2\xad\ntion.\n8 FAM 225.6(g) & (h).\n10 For reasons that are not explained in the m aterial w e have been provided, the form o f the statem ent of\nunderstanding and the oath of renunciation executed by M r. A differs som ew hat from the form s executed by\nM r. B. The oath o f renunciation executed by Mr. A recites that \xe2\x80\x9c I hereby absolutely and entirely renounce my\nU nited States nationality together w ith all rights and privileges and all duties o f allegiance and fidelity\ntherefore p ertaining,\xe2\x80\x9d and the statem ent o f understanding recites his understanding that \xe2\x80\x9cI have a right to\nrenounce my U nited States citizenship and 1 have decided voluntarily to exercise that right . . . The\nextrem ely serious nature o f my contem plated act o f renunciation has been fully explained to me . . and I\nfully understand the consequences o f m y intended action.\xe2\x80\x9d The oath executed by Mr. B states that \xe2\x80\x9c I hereby\nabsolutely and entirely, without m ental reservation, coercion or duress renounce my U nited States nationality\nto g eth er w ith all rights and privileges and all duties o f allegiance and fidelity thereunto pertaining.\xe2\x80\x9d His\nstatem ent o f understanding recites th a t \xe2\x80\x9cI am exercising my right o f renunciation freely and voluntarily\nw ithout any force, com pulsion, or un d er influence placed upon me by any person . . . The extrem ely serious\nand irrevocable nature o f the act o f renunciation has been explained to me . . . and I fully understand its\nco n seq u en ces.\xe2\x80\x9d\n\n224\n\n\x0cpossible deportation, and I voluntarily renounced U.S. citizenship.\xe2\x80\x9d Because of\nthese statements, the consular officer declined to make a specific recommenda\xc2\xad\ntion to the State Department concerning voluntariness, and left for \xe2\x80\x9cDepart\xc2\xad\nmental determination whether in view of this agreement Mr. A\xe2\x80\x99s renunciation\nshould be considered voluntary.\xe2\x80\x9d The consular officer who accepted Mr. B\xe2\x80\x99s\nrenunciation was also unwilling to attest to its voluntariness, in light of a\nwritten statement filed by Mr. B stating that he was renouncing pursuant to an\nagreement with OSI, and oral statements made by Mr. B that he had \xe2\x80\x9cno\nchoice\xe2\x80\x9d but to renounce in the face of threatened legal proceedings.\nThe execution of the oath of renunciation does not end the State Department\xe2\x80\x99s\nadministrative role in renunciations of citizenship. Under current regulations,\nthe consular officer must prepare a certificate of loss of nationality and submit\nit to the State Department for review and approval. 22 C.F.R. \xc2\xa7 50.50, 8 FAM\n224.1. That certificate must be approved and returned to the consular official\nfor submission to the individual. 8 FAM 224.9. We understand that in most\ncases involving formal renunciations of citizenship the State Department rou\xc2\xad\ntinely approves the certificate of loss of nationality. The State Department has\ninformed us orally, however, that it interprets its responsibility under 8 U.S.C.\n\xc2\xa7 1481 to encompass discretion to determine whether a particular renunciation\nmeets the requirements of the statute and of the Constitution when information\navailable to the Department suggests that the renunciation may be defective.11\nNeither Mr. A nor Mr. B has indicated to the State Department that he will\nchallenge the loss of his citizenship, although such a challenge would generally\nnot be raised until the certificate of loss of nationality has been issued.12 Under\ncurrent State Department practice, individuals may challenge any holding by\nthe State Department of loss of United States nationality by an appeal to a\nBoard of Appellate Review established in the State Department. See 22 C.F.R.\n\xc2\xa7\xc2\xa7 7.3, 50.52. If the Board of Appellate Review upholds the loss of nationality,\nthe individual may institute an action in federal district court for a judgment\ndeclaring him to be a national of the United States. 8 U.S.C. \xc2\xa7 1503; 28 U.S.C.\n\xc2\xa7 2201.\nII.\nA. Constitutional and Statutory Framework\n\nThe Fourteenth Amendment guarantees that \xe2\x80\x9c[a]ll persons bom or natural\xc2\xad\nized in the United States, and subject to the jurisdiction thereof, are citizens of\nthe United States.\xe2\x80\x9d The Supreme Court has interpreted this guarantee to pre\xc2\xad\nclude Congress from stripping a citizen of citizenship without his assent.\nAfroyim v. Rusk, 387 U.S. 253, 268 (1967); see also Perkins v. Elg, 307 U.S.\n11 This adm inistrative construction appears consistent with the role given the State Department under\n\xc2\xa7 1481 W e do not, how ever, find it necessary to address the validity or w eight o f that interpretation here.\n12 State D epartm ent regulations provide that the time for filing an appeal to the Board of A ppellate Review\nruns from the tim e o f approval by the D epartm ent o f the certificate o f loss o f nationality. 22 C.F.R. \xc2\xa7 7.5.\n\n225\n\n\x0c325, 334 (1939); Nishikawa v. Dulles , 356 U.S. 129, 133 (1958). The impor\xc2\xad\ntance of citizenship and the severe consequences of a loss of that citizenship\nhave heavily influenced the Court\xe2\x80\x99s reading of the language of the Fourteenth\nAmendment:\nCitizenship is no light trifle to be jeopardized any moment\nCongress decides to do so under the name of one of its general or\nimplied grants of power. In some instances, loss of citizenship\ncan mean that a man is left without the protection of citizenship\nin any country in the world \xe2\x80\x94 as a man without a country.\nCitizenship in this Nation is a part of a cooperative affair. Its\ncitizenry is the country and the country is its citizenry. The very\nnature of our free government makes it completely incongruous\nto have a rule of law under which a group of citizens temporarily\nin office can deprive another group of citizens of their citizen\xc2\xad\nship. We hold that the Fourteenth Amendment was designed to,\nand does, protect every citizen of this Nation against a congres\xc2\xad\nsional forcible destruction of his citizenship, whatever his creed,\ncolor or race. Our holding does no more than to give to this\ncitizen that which is his own, a constitutional right to remain a\ncitizen in a free country unless he voluntarily relinquishes that\ncitizenship.\nAfroyim v. Rusk, 387 U.S. at 267-68.13 See also Trop v. Dulles, 356 U.S. 86,92\n(1958); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160-61 (1963).\n\nThus, with the exception of formal denaturalization,14a United States citizen\ncan lose his citizenship only if he voluntarily performs an act that is \xe2\x80\x9cin\nderogation of allegiance to the United States,\xe2\x80\x9d 42 Op. Att\xe2\x80\x99y Gen. 397, 400\n(1969), and that was committed with the intent to relinquish United States\ncitizenship. See Vance v. Terrazas, 444 U.S. 252, 261 (1980). \xe2\x80\x9c[A]n act which\n13 In Afroyim v. Rusk, the Court expressly rejected the argum ent it had previously upheld in Perez v.\nBrownell , 356 U .S. 44 (1958), that C o n g ress\xe2\x80\x99 im plied pow er to deal w ith foreign affairs as an indispensable\nattrib u te o f sovereignty, plus the N ecessary and Proper C lause, em pow er C ongress to w ithdraw citizenship\nw ithout the assen t o f the citizen. Relying substantially on consideration by various Congresses o f bills that\nw ould have provided fo r som e form o f expatriation, the C ourt concluded in Afroyim that the fram ers of the\nFourteenth A m endm ent intended clearly \xe2\x80\x9c to put citizenship beyond the pow er o f any governm ental unit to\ndestro y ,\xe2\x80\x9d 387 U.S. at 263, and that C ongress therefore lacks the constitutional authority to strip a citizen of\nc itizen sh ip w ithout his consent.\n14 D enaturalization can apply only to c itizen s w ho acquired their citizenship by naturalization, because it is\nprem ised on im propriety in the naturalization proceedings. See 3 G ordon & Rosenfield, Immigration Law &\nProcedure , \xc2\xa7 20.1 (1983) (Gordon & R osenfield) Expatriation, on the other hand, applies to any citizen,\nw heth er he acquired his citizenship through birth or through naturalization, and does not involve any\nchallen g e to the law fulness o f the in d iv id u al\'s acquisition o f citizenship. Id. The pow er o f Congress to\nprovide fo r denaturalization o f naturalized citizens has long been view ed as an incident o f its authority \xe2\x80\x9c [t]o\nestab lish a uniform R ule o f N aturalization,\xe2\x80\x9d U.S. C onst art. I, \xc2\xa7 8, cl. 4, and necessary to protect the integrity\no f the naturalization process. See Johannessen v. United States , 225 U.S. 227 (1912), Luria v. United States,\n231 U .S. 9 (1913); Knauer v. United States , 328 U.S. 654, 673 (1946) C onceptually, denaturalization does\nnot fall w ithin the general rule that citizenship can only be lost by voluntary action, because denaturalization\nis intended to redress errors in the naturalization process that w ould disentitle the individual to United States\nc itizen sh ip ab initio. See 3 Gordon & R osenfield \xc2\xa7 20.2C.\n\n226\n\n\x0cdoes not reasonably manifest an individual\xe2\x80\x99s transfer or abandonment of alle\xc2\xad\ngiance to the United States cannot be made a basis for expatriation.\xe2\x80\x9d 42 Op.\nAtt\xe2\x80\x99y. Gen. at 400.\nAlthough the Supreme Court has definitively held that Congress cannot\nprovide by statute for involuntary expatriations, it has upheld Congress\xe2\x80\x99 au\xc2\xad\nthority to prescribe by statute the types of acts that Congress considers to be\ngenerally \xe2\x80\x9chighly persuasive evidence . . . of a purpose to abandon citizen\xc2\xad\nship.\xe2\x80\x9d See Nishikawa v. Dulles, 356 U.S. at 139; Vance v. Terrazas, 444 U.S.\nat 261, 265. These acts are set forth in \xc2\xa7 349 of the Immigration and Nationality\nAct, 8 U.S.C. \xc2\xa7 1481. One of these specified acts is a \xe2\x80\x9cformal renunciation of\nnationality before a diplomatic or consular officer of the United States in a\nforeign state.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1481(a)(6). Other specified acts include: obtaining\nnaturalization in a foreign state; taking an oath or making an affirmation or\nother formal declaration of allegiance to a foreign state; serving in the armed\nforces of a foreign state; serving in an office or employment under the govern\xc2\xad\nment of a foreign state that requires assumption of the nationality of that state\nor a declaration of allegiance to that state; or committing an act of treason\nagainst the United States. Id. \xc2\xa7 1481(a)(l)-(4), (7). The statute places the\nburden of proof on the party asserting that nationality has been lost, but\nestablishes a rebuttable presumption that the act was committed voluntarily:\nWhenever the loss of United States nationality is put in issue in\nany action or proceeding . . . the burden shall be upon the person\nor party claiming that such loss occurred, to establish such\nclaims by a preponderance of evidence. Except as otherwise\nprovided . . . any person who commits or performs, or who has\ncommitted or performed, any act of expatriation under the pro\xc2\xad\nvisions of this chapter or any other Act shall be presumed to\nhave done so voluntarily, but such presumption may be rebutted\nupon a showing, by a preponderance of the evidence, that the act\nor acts committed or performed were not done voluntarily.\nId. \xc2\xa7 1481(c). This presumption and the \xe2\x80\x9cpreponderance of the evidence\xe2\x80\x9d\n\nstandard have been upheld by the Supreme Court as within the constitutional\nauthority of Congress. Vance v. Terrazas , 444 U.S. at 264-67. The statutory\npresumption does not apply, however, to intent; the party asserting the loss of\nnationality bears the burden of proof, by a preponderance of the evidence, that\nthe act was committed with the intent to relinquish United States citizenship.\nSee id. at 268.\nThus, the analysis the courts have determined is required by the Constitution\nand by statute in any case in which a loss of nationality is alleged is three-fold:\n(1) Has the individual committed one of the acts set out in\n\xc2\xa7 1481?\n(2) If so, can the individual overcome the statutory presump\xc2\xad\ntion that the expatriating act was performed voluntarily?\n227\n\n\x0c(3) Can the party claiming that citizenship was lost establish\nby a preponderance of the evidence that the act was committed\nwith the intent to relinquish citizenship?\nHere, our analysis focuses on the second question \xe2\x80\x94 that of the voluntariness\nof the renunciations in light o f the threat that OSI would institute denaturaliza\xc2\xad\ntion and deportation proceedings.15 Obviously, judicial decisions construing\nthe voluntariness requirement of \xc2\xa7 1481 are relevant precedent, and provide the\nbasic framework for that analysis. In addition, we believe that decisions involv\xc2\xad\ning the voluntariness of guilty pleas entered pursuant to criminal plea bargains\nare highly relevant. The agreements negotiated between OSI and Mr. A and\nMr. B are analogous in many respects to plea bargains, albeit in a civil, rather\nthan a criminal, context. As in criminal plea bargains, Mr. A and Mr. B have\nagreed to waive or relinquish important constitutional rights in exchange for an\nagreement by United States prosecutors not to press forward with judicial\nproceedings that they otherwise could properly institute. As we discuss further\nbelow, the plea bargain analogy must be applied with care, because plea\nbargains, unlike the agreements negotiated with OSI at issue here, are subject\nto scrutiny by the courts before they become final. Nonetheless, we believe the\nanalysis of the voluntariness issue by the courts in plea bargain cases is\ninstructive, particularly because we have found no cases under \xc2\xa7 1481 that\nraise precisely the factual situation raised by your request.\nWe will outline first the relevant precedents under \xc2\xa7 1481, and then discuss\nthe relevant cases involving the voluntariness of plea bargains. Finally, we will\napply those precedents to the cases of Mr. A and Mr. B.\nB. Judicial Decisions Construing \xe2\x80\x9cVoluntariness\xe2\x80\x9d Requirement o f 8 U.S.C. \xc2\xa7 1481\n\nThe courts have consistently recognized that an expatriating act cannot be\nconsidered to be voluntary if the circumstances demonstrate that the individual\nwas coerced or compelled to commit the expatriating act:\nThere is no dispute that citizenship will not be relinquished\nwhen the citizen performs an act of expatriation with a gun at his\nhead, or under threat o f jail, or under other circumstances in\xc2\xad\nvolving duress, mistake, or incapacity negating a free choice.\n3 Gordon & Rosenfield \xc2\xa7 20.9b. If a citizen is forced into an expatriating act by\ncircumstances essentially beyond his control, the sine qua non of expatriation\n13 T here is no q uestion that M r A and M r. B executed form al oaths o f renunciation in accordance with the\nform s an d p rocedures established by the Secretary o f State under \xc2\xa7 1481(a)(6). With respect to the question o f\nintent, it seem s unlikely that any successful challenge could be raised by either o f those individuals on the\nground that he did not intend, by execution o f that oath, to relinquish U nited States citizenship. See, e.g.,\nDavis v. District Director, INS, 481 F. Supp 1178, 1181 (D.D.C. 1979) (in formal renunciation cases,\nquestion o f intent w ould norm ally not arise). The State D epartm ent Board o f A ppellate Review has taken the\nposition that a form al renunciation of U n ited States citizenship in the m anner prescribed by law ipso facto\ndem onstrates an intent on the part of renunciant to relinquish citizenship. See , e.g. , Case o f V W v d H (Aug.\n25, 1982). In any event, w e do not understand that the question raised by your request concerns the intent of\nM r. A and M r. B to relinquish United States citizenship, but rather concerns the voluntariness o f their\nrenunciations.\n\n228\n\n\x0cis lacking, and therefore no effect should be given to the expatriating act. See\nDoreau v. Marshall, 170 F.2d 721, 724 (3d Cir. 1948); Stipa v. Dulles, 233\nF.2d 551, 555 (3d Cir. 1956).\nThe difficulty lies in determining what circumstances amount to duress or\ncompulsion that would negate the voluntariness of the expatriating act. The\ncourts have held that conscription into military service, particularly in a totali\xc2\xad\ntarian country, may make such service and any attendant oath of allegiance\ninvoluntary, if the individual would otherwise face physical punishment, im\xc2\xad\nprisonment, or economic deprivation.16 Under some circumstances, the courts\nhave concluded that familial obligations, or the need to satisfy basic subsis\xc2\xad\ntence needs, may rebut the presumption of voluntariness for actions such as\nextended residence abroad17 or acceptance of employment by a state agency of\na foreign government.18 Evidence that the individual relied on material misrep\xc2\xad\nresentations or erroneous advice by government officials has been held to\nsatisfy the burden of rebutting the presumption of voluntariness.19\nAlthough the courts have been receptive to claims of duress because of the\nimportance of citizenship and the severe consequences of expatriation, they\nhave also recognized that the difficulty of making a choice between alterna\xc2\xad\ntives and the motivation for that choice does not necessarily make the expatri\xc2\xad\nating act involuntary:\nIf by reason of extraordinary circumstances amounting to true\nduress, an American national is forced into the formalities of\ncitizenship of another country, the sine qua non of expatriation\nis lacking . . . . On the other hand, it is just as certain that the\nforsaking of American citizenship, even in a difficult situation,\nas a matter of expediency, with attempted excuse of such con\xc2\xad\nduct later when crass material considerations suggest that course,\nis not duress.\nDoreau v. Marshall, 170 F.2d at 724. Particularly in cases involving formal\nrenunciations of citizenship or other written disclaimers of citizenship,20 the\n16See, e.g., Nishikawa v. Dulles, 356 U.S. at 139 (compulsory m ilitary service in Japanese arm y); Kamada\nv. Dulles, 145 F. Supp. 457 (N.D. C al. 1956) (same); see also Fukumoto v Dulles, 216 F .2d 553 (9th C ir.\n1954) (application for Japanese citizenship); Kuwahara v. Acheson, 96 F. Supp. 38 (S.D. C al. 1951) (voting\nin post-w ar Japan com pelled by fear o f retaliation, loss o f ration card, tradition o f obedience to authority);\nTakehara v. Dulles, 205 F.2d 560 (9th Cir. 1953) (sam e), Kamada v. Dulles, 145 F. Supp. a t 460-61 (sam e).\n17See, e.g., Mendelsohn v Dulles, 207 F.2d 37 (D.C. Cir. 1953) (need to care for gravely ill w ife); Ryckman\nv. Acheson , 106 F. Supp. 739 (S.D. Tex. 1952) (need to care for ill mother).\n18 See, e.g., Insogna v Dulles, 116 F. Supp. 473 (D.D.C. 1953) (acceptance o f em ploym ent in bureau o f\nItalian G overnm ent); Kamada v. Dulles, 145 F. Supp. at 459 (acceptance o f em ploym ent as teacher in Japan).\n]9See, e.g., Moser v. United States, 341 U.S. 41 (1951) (alien not disbarred from application for citizenship\nbecause he signed w aiver o f eligibility for m ilitary service, where governm ent representatives had inform ed\nhim that he w ould not be precluded from citizenship); Podea v. Acheson, 179 F.2d 306 (2d C ir. 1950) (steps\nleading to conscription in Rumanian Army caused by erroneous advice o f State Departm ent); Hong v. Dulles,\n214 F.2d 753 (7th C ir. 1954) (im proper refusal o f U.S passport).\n20 The only judicial decision we are aware o f in which a court concluded that a formal renunciation o f\ncitizenship was involuntary is Acheson v. Murakami, 176 F.2d 953 (9th Cir. 1949). In that case, the court\nconcluded that renunciations by U nited States citizens o f Japanese descent, w hile they w ere interned during\nContinued\n\n229\n\n\x0ccourts have drawn a distinction between duress and motivation, and have\nemphasized that the critical question is whether the individual was free to\nchoose between alternatives available to him, even if the choices might be\ndifficult and the individual might be motivated by economic, emotional, or\nmoral concerns. In Jolley v. INS, 441 F.2d 1245 (5th Cir.), cert, denied, 404\nU.S. 946 (1971), the court considered whether a formal renunciation of citizen\xc2\xad\nship by a United States citizen was voluntary, in light of the petitioner\xe2\x80\x99s\ncontention that he was compelled to renounce citizenship in order to avoid\nviolation of the United States selective service laws. The petitioner relied\nprimarily on cases such as Nishikawa v. Dulles, supra, in which the courts had\nbeen receptive to arguments that service in the Japanese armed forces was\ninvoluntary and therefore not expatriating. In Jolley, the court drew what we\nbelieve is a valid distinction between petitioner\xe2\x80\x99s claim and the claims upheld\nin Nishikawa and other similar cases:\nNishikawa was faced with the choice of either subjecting him\xc2\xad\nself to Japanese penal sanctions or relinquishing his United\nStates citizenship. The conflicting laws of the United States and\nJapan created a Hobson\xe2\x80\x99s choice which rendered either alterna\xc2\xad\ntive involuntary. The same dilemma did not confront Jolley.\nWhile we accept the assertion that Jolley\xe2\x80\x99s abhorrence of the\nSelective Service laws caused him to apostatize himself, he\ncannot equate that abhorrence with coercion sufficient to render\nhis renunciation involuntary as a matter of law . . . . The com\xc2\xad\npulsion he felt to renounce his citizenship was of his own\ndesign. But opportunity to make a decision based upon personal\nchoice is the essence of voluntariness. Such a choice was un\xc2\xad\navailable to Nishikawa, for he was forced by Japanese penal law\nto engage in what was then termed an expatriating act. The\nduress he felt was not of his own making. Jolley\xe2\x80\x99s expatriating\nact, on the other hand, was not compelled by law. He had the\nalternative to obey the dictates of the Selective Service System,\nan alternative he found impossible solely because of his own\nmoral code. His renunciation was therefore the product of per\xc2\xad\nsonal choice and consequently voluntary.\n441 F.2d at 1250 (footnote omitted).21 In cases involving the execution by\n20 (. . . continued)\nW orld W ar II in the T ule Lake Relocation Center, were not a result o f intelligent choice, but rather o f \xe2\x80\x9cmental\nfear, intim idation, and coercion\xe2\x80\x9d that d eprived them o f the free exercise o f their w ill. 176 F 2d at 959, 96 0 61. T he c o u rt based its d ecision on evidence o f the coercive effect o f the cruel and inhum an treatm ent o f those\ncitizens d uring their imprisonment, the shock and resentm ent caused by the racist attitude of the commanding\ngeneral o f th e cam p, and fear o f reprisal from m ilitant pro-Japanese groups within the camp. The extraordi\xc2\xad\nnary circum stances found by the court to override the free will o f those renunciants bears little factual\nresem blance to the circum stances surrounding Mr. A \'s and Mr. B\xe2\x80\x99s renunciations, and therefore we believe\nthe Acheson holding is o f lim ited precedential value here.\n21 Nishikawa and m ost o f the other c ase s cited above w ere decided p rio r to 1961, w hen C ongress amended\nC ontinued\n\n230\n\n\x0cneutral aliens of waivers of eligibility for military service, which require the\nalien to waive future eligibility for United States citizenship, the courts have\nsimilarly rejected claims that pressures such as fear of retaliation or financial\nburden were sufficient grounds to constitute duress.22 Recent relevant deci\xc2\xad\nsions by the State Department Board of Appellate Review provided to OSI\nhave applied the Jolley rationale to reject claims of duress and compulsion,\nparticularly when the expatriating act was a formal renunciation of citizenship\nor a formal rejection of allegiance to the United States.23\nC. Voluntariness o f Guilty Pleas Accepted Pursuant to Plea Bargains\n\nAlthough the reasoning of the decisions under \xc2\xa7 1481 is instructive, none of\nthose decisions presents a factual situation directly analogous to the renuncia\xc2\xad\ntions by Mr. A and Mr. B. However, as we noted above, the agreements\nbetween OSI and Mr. A and Mr. B are analogous to plea bargains negotiated in\nthe criminal context. In both, the individual gives up valuable constitutional\nrights \xe2\x80\x94 the right of citizenship, in the case of Mr. A and Mr. B, and the rights\nto trial by jury and to confront witnesses and the protection against compelled\nself-incrimination in the case of criminal defendants \xe2\x80\x94 in exchange for less\nsevere treatment by government prosecutors, such as dismissal of other charges,\nreduction in charges, or a recommendation for a reduced sentence. The critical\nquestion is whether the individual gave up those constitutional rights voluntar\xc2\xad\nily, or whether he was coerced into the waiver by the influence of the govern\xc2\xad\nment prosecutors or by other factors. As in voluntariness cases arising under\n\xc2\xa7 1481, the courts have held that the voluntariness of a guilty plea entered\npursuant to a plea bargain can only be determined based on all of the relevant\ncircumstances surrounding the waiver. See Brady v. United States, 391 U.S.\n742, 749 (1970). Thus, although we recognize that there are procedural differ\xc2\xad\nences between the plea bargain cases and the Mr. A and Mr. B cases, we\nbelieve the analysis by the courts of the substantive issues involved \xe2\x80\x94 i.e.,\nwhether a waiver of constitutional rights as part of a bargain with government\nprosecutors can be considered voluntary \xe2\x80\x94 is highly relevant to our analysis here.\n21 ( . . continued)\n\xc2\xa7 1481 to include the current presum ption o f voluntariness and the preponderance o f evidence standard Prior\nto that am endm ent, the burden was on the party claim ing loss o f citizenship to establish by \xe2\x80\x9cclear and\nconvincing\xe2\x80\x9d evidence that the allegedly expatriating act w as com m itted voluntarily. See N ishikaw a v. D ulles,\n356 U.S. at 135; Vance v. Terrazas, 444 U.S. at 264-65. Thus, although the reasoning of the courts in those\npre-1961 cases rem ains instructive, it is im possible to determ ine w hether the results w ould have been the\nsam e under the current evidentiary standards.\n22 See, e.g., Ceballos v Skaughnessy, 352 U.S. 599 (1957); Prieto v. United States, 289 F.2d 12 (5th Cir.\n1961); Jubran v. U nited States, 255 F 2d 81 (5th Cir. 1958); see generally 1 G ordon & R osenfield \xc2\xa7 2.49d\n(collecting cases) (\xe2\x80\x9c [l)t was concluded that the alien had a free choice, that he chose to forego m ilitary service\nand m ust endure the consequences, and that there w as no coercion in contem plation o f law. The mere\ndifficulty o f this choice is not deem ed to constitute duress. If the alien made a free and deliberate choice to\naccept benefits, he will be bound by his election/*).\n23 See, e.g.. C ase o f D R L (July 6, 1984) (naturalization in Canada); Case o f N A M cG (Sept. 2, 1982)\n(formal renunciation); C ase o f E M v d H (Aug. 25, 1982) (same); Case o f V W v d H (Aug. 25, 1982) (same).\n\n231\n\n\x0cThe practice of criminal plea bargaining has been recognized by the Su\xc2\xad\npreme Court as constitutional, and indeed as an important part of the criminal\njustice system. See Brady v. United States, 397 U.S. at 750; Mabry v. Johnson\n467 U.S. 504 (1984). The Court has specifically rejected the argument that\nguilty pleas entered pursuant to such bargains must be considered involuntary\nbecause of the government\xe2\x80\x99s involvement in and responsibility for some of the\ncircumstances motivating the plea:\nThe State to some degree encourages pleas of guilty at every\nimportant step in the criminal process . . . . All these pleas of\nguilty are valid in spite of the State\xe2\x80\x99s responsibility for some of\nthe factors motivating the pleas; the pleas are no more improp\xc2\xad\nerly compelled than is the decision by a defendant at the close of\nthe State\xe2\x80\x99s evidence at trial that he must take the stand or face\ncertain conviction.\nBrady v. United States, 397 U.S. at 750. The involvement of government\nprosecutors and the overhanging threat of greater punishment does not neces\xc2\xad\nsarily deprive the defendant o f free choice:\n\nThe standard was and remains whether the plea represents a\nvoluntary and intelligent choice among the alternative courses\nof action open to the defendant. That he would not have pleaded\nexcept for the opportunity to limit the possible penalty does not\nnecessarily demonstrate that the plea of guilty was not the\nproduct of a free and rational choice . . . .\nNorth Carolina v. Alford, 400 U.S. 25, 31 (1970) (citations omitted). The\n\ncourts have emphasized that plea bargaining rests on a mutuality of advantage;\nthe government perceives an advantage in avoiding a trial that would consume\nscarce resources and in which it might not prevail, while the defendant avoids\nthe burdens of trial and limits his exposure to penalties. See Brady v. United\nStates, 397 U.S. at 752.\nBecause of the importance o f the constitutional rights at stake and the risk of\nabuse by government prosecutors, courts have been extraordinarily careful in\nreviewing plea bargains, and have required that \xe2\x80\x9c[w]aivers of constitutional\nrights not only must be voluntary but must be knowing, intelligent acts done\nwith sufficient awareness of the relevant circumstances and likely conse\xc2\xad\nquences.\xe2\x80\x9d Brady v. United States, 397 U.S. at 742; see also North Carolina v.\nAlford, 400 U.S. at 31; Johnson v. Zerbst, 304 U.S. 458, 464 (1938). In\nreviewing the constitutional sufficiency of plea bargains, the courts have\ngenerally required proof of a number of factors, including: (1) that the defen\xc2\xad\ndant has real notice of the charges against him;24 (2) that he is aware of the\nevidence, both inculpatory and exculpatory, available to the prosecutors;25 (3)\n24 See M a rsh a ll v. Lonberger, 459 U.S. 422, 436 (1983); H enderson v. Morgan, 426 U.S. 637, 638 (1976).\n25 See F am bo v. Sm ith, 433 F. Supp. 5 9 0 , 5 9 8 -9 9 (W .D .N .Y .), a ffd , 565 F.2d 233 (1977).\n\n232\n\n\x0cthat he has been fully informed of the consequences of the plea;26 (4) that he is\ncompetent to understand the plea and its consequences;27 and (5) that he has\nhad the effective assistance of counsel.28 In addition, the courts have recog\xc2\xad\nnized that government misconduct or overreaching such as physical abuse or\nthreats, extensive interrogation of the defendant without assistance of counsel,\nor material misrepresentation by prosecutors can amount to duress that under\xc2\xad\ncuts the voluntariness of a plea.29\nHowever, a threat to prosecute where the facts warrant prosecution is gener\xc2\xad\nally not considered to be coercion or intimidation. \xe2\x80\x9cTo establish fear and\ncoercion on a plea an individual must show he was subjected to threats or\npromises of illegitimate action.\xe2\x80\x9d O \xe2\x80\x99Neill v. United States, 315 F. Supp. 1352,\n1354 (D. Minn. 1970), a ffd , 438 F.2d 1236 (1971); see also Ford v. United\nStates, 418 F.2d 855, 858 (8th Cir. 1969). Moreover, while the defendant\xe2\x80\x99s\nadmission that he committed the acts charged in the indictment may be highly\nsignificant evidence of the voluntariness of his act and an important protection\nagainst abuse, such an admission is not a constitutional prerequisite to accep\xc2\xad\ntance of the plea, provided the defendant \xe2\x80\x9cintelligently concludes that his\ninterests required entry of a guilty plea and the record before the judge contains\nstrong evidence of actual guilt.\xe2\x80\x9d North Carolina v. Alford, 400 U.S. at 37.\nOf course, the process of plea bargaining and the entering of guilty pleas is\nsubject to stringent procedural requirements that provide the court with an\nopportunity to assess the circumstances of the bargain and the defendant\xe2\x80\x99s\nunderstanding and acceptance of the bargain before the plea is accepted. In the\nfederal courts, plea bargaining is governed by Rule 11 of the Federal Rules of\nCriminal Procedure, which requires the court to address the defendant person\xc2\xad\nally in open court in order to determine \xe2\x80\x9cthat the plea is voluntary and not the\nresult of force or threats or promises apart from a plea agreement.\xe2\x80\x9d Fed. R.\nCrim. P. 11(d). The rule requires disclosure of a plea agreement in open court,\nand directs the court, if it accepts the agreement, to inform the defendant that it\nwill embody in the judgment and sentence the disposition provided for by the\nagreement. Fed. R. Crim. P. 11(e). Finally, the court is required to make \xe2\x80\x9csuch\ninquiry as shall satisfy it that there is a factual basis for the plea.\xe2\x80\x9d Fed. R. Crim.\nP. 11(f). Most, if not all, state courts have similar procedural requirements. See,\ne.g., 21 Am. Jur. 2d Criminal Law II 470-85; Uniform R. Crim. P. 443 & 444.\nWe understand concern has been raised that the lack of any comparable\nprocedures or requirements applicable to the negotiation of agreements be\xc2\xad\ntween OSI and alleged Nazi persecutors could potentially lead to abuses of the\nprocess. Procedural rules such as Rule 11 or comparable rules in state courts\nprovide a mechanism to ensure that the plea bargaining process meets constitu\xc2\xad\ntional standards, and to provide a complete record at the time the plea was\n26 See Brady v. U nited States, 397 U.S. at 755-56.\n27See Sm ith v. O \xe2\x80\x99Grady, 321 U.S. at 334.\n28 See B rady v. U nited States, 397 U.S. at 750; Fontaine v. U nited States, 411 U.S. 213, 21 4 -1 5 (1973);\nSanders v. U nited States, 373 U S. 1, 19-20 (1963); M achibroda v. U nited States, 368 U.S. 487, 4 8 9 -9 0\n(1962); U nited States v. Briscoe, 432 F.2d 1351, 1353 (D.C. Cir. 1970).\n29 See H enderson v. M organ, 426 U.S. 637, 638 (1976).\n\n233\n\n\x0centered of the factors relevant to the voluntariness determination. See Halliday\nv. United States, 394 U.S. 831, 832 (1969). However, the particular procedures\nembodied in those rules are not constitutionally mandated, see McCarthy v.\nUnited States, 394 U.S. 459, 465 (1969); Waddy v. Heer, 383 F.2d 789, 794\n(6th Cir. 1967), cert, denied, 392 U.S. 911 (1968), and they do not address the\nsubstantive determination that must be made as to the voluntariness of a guilty\nplea. Further, expatriation in general does not necessarily require judicial\nproceedings, but rather entails an administrative finding that loss of citizenship\nhas occurred. See 3 Gordon & Rosenfield \xc2\xa7 20.1. Congress has by statute\nprovided for judicial review o f that administrative determination in 8 U.S.C.\n\xc2\xa7 1503, but the process does not, unlike the acceptance of guilty pleas in\ncriminal cases, necessarily require a judicial determination at the time the\nexpatriating act is committed that the act was committed voluntarily.\nTherefore, we do not believe that the lack of any specific procedural safe\xc2\xad\nguards renders the agreements reached between OSI and Mr. A and Mr. B\ninvalid or undercuts the relevance of the substantive analysis by the courts of\nthe voluntariness of criminal plea bargains. We would be somewhat more\nconcerned about the lack of procedural safeguards if the individuals could not\nobtain judicial review at some point of the voluntariness of their renunciations.\nAs we pointed out above, however, current State Department regulations\nprovide for administrative review of any determination of loss of citizenship,\nand an opportunity for judicial review is provided by statute.\nIn that regard, we are unsure as to the effect of the undertaking in Mr. A\xe2\x80\x99s\nand Mr. B \xe2\x80\x99s agreements that they would not institute any actions to challenge\nthe basis for the agreements or their renunciations. Given the importance of the\nconstitutional right at stake, and the absence of particular procedural safe\xc2\xad\nguards applicable to negotiation of the agreements, we are not certain that such\nan undertaking would be held enforceable in court.30 Because a resolution of\nthat question is not necessary to this opinion, we do not attempt to resolve it here.\nD. Voluntariness o f Renunciations by Mr. A and Mr. B\n\nWe believe that the analysis of the voluntariness issue in the plea bargain\ncases is substantively consistent with the voluntariness standard articulated in\nAfroyim v. Rusk, particularly as that standard was interpreted in Jolley v.\nImmigration & Naturalization Service. The emphasis in both instances is on\nwhether the individual could reasonably choose between alternatives, however\ndifficult that choice might be and whatever the individual\xe2\x80\x99s motivation might\nbe for making the choice. The plea bargain cases establish that a choice such as\nthat faced by Mr. A and Mr. B \xe2\x80\x94 between waiver of constitutional rights and\nprosecution \xe2\x80\x94 can be voluntary, if intelligently made by a competent indi\xc2\xad\nvidual. Here, both men had substantial interests in avoiding the expense, strain,\nand publicity of deportation and denaturalization proceedings. In addition, they\n30 See, e.g ., H alliday v. U nited States, 3 9 4 U.S at 833 (noting im portance of availability o f post-conviction\nrem edy to challenge voluntariness o f p le a bargain); see also Fontaine v. U nited States, 411 U.S. at 215\n(coerced guilty plea is open to collateral attack)\n\n234\n\n\x0chad an interest in avoiding other consequences or sanctions that might flow\nfrom denaturalization and deportation, such as the possible loss of federal\nbenefits accrued while they were citizens. The facts available to us indicate that\ncounsel for Mr. A and Mr. B reviewed the evidence and were involved in the\ndiscussions, that Mr. A and Mr. B were informed, either by OSI or through\ncounsel, of the charges and evidence against them, that they were informed of\nthe consequences of their action both at the time they signed the agreements\nand at the time they executed the oaths of renunciation, that both admitted in\nthe agreements that they had been involved in Nazi activities and that they were\nsubject to denaturalization and deportation, and that both repeatedly acknowl\xc2\xad\nedged the voluntariness of their acts.\nAlthough Mr. B has since professed his innocence of the charges against\nhim, OSI has informed us that it has substantial evidence supporting those\ncharges, much of it from statements made under oath by Mr. B. Under North\nCarolina v. Alford, 400 U.S. at 37, therefore, it would not appear that his later\nself- serving statements undercut the voluntariness of his renunciation. In\naddition, as far as we know the only threat made by OSI prosecutors in the\nbargaining process was the threat to institute denaturalization and deportation\nproceedings, with whatever consequences might flow from those proceedings.\nBecause OSI believed it had developed facts that would warrant such proceed\xc2\xad\nings, that threat cannot be viewed as illegitimate or overreaching.\nAt least in the absence of other facts indicating that government prosecutors\nengaged in misrepresentation or illegitimate threats, or that Mr. A and Mr. B\nwere not fully informed of the nature of the charges against them or the\nconsequences of their plea \xe2\x80\x94 none of which is suggested in the material we\nhave reviewed \xe2\x80\x94 and based on the facts as they have been presented to us, we\nare confident that a court would find that both renunciations were voluntary. In\nreaching that conclusion, we believe that the courts would find relevant, as we\nhave, the clear analogy between these agreements and plea bargains, and\ntherefore apply the well-established principles applicable to the determination\nof voluntariness in that context. See generally United States v. Ryan, 360 F.\nSupp. 265, 270 (E.D.N.Y. 1973) (noting analogy between plea bargains and\nconsent judgment entered in denaturalization case requiring renunciation of\ncitizenship by subject of proceedings).31\nRa lph W . T arr\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n31 A lthough we believe the courts would certainly find the plea bargain analogy relevant, they might not\nfeel bound by the strict scrutiny generally given to crim inal pleas D enaturalization and deportation proceed\xc2\xad\nings are civil rather than criminal in nature, s e e , e.g., H arisiades v. Shaughnessy, 342 U .S. 580 (1952);\nBugajewitz v. Adam s, 228 U.S 585 (1913); U nited States v. Strom berg, 227 F 2d 903 (1 1th C ir. 1955), and\nproceedings relating to expatriation are clearly civil tn nature, see 8 U.S C. \xc2\xa7 1503. A lthough the conse\xc2\xad\nquences o f denaturalization and deportation o r voluntary expatriation are severe, they do not involve a loss of\nliberty or crim inal punishm ent. In addition, in any challenge to the loss o f citizenship the burden would be on\nMr. A or Mr. B to rebut the presum ption o f voluntariness that flows from \xc2\xa7 1481 (c). Therefore, it may be that\ncourts w ould not scrutinize bargains struck in the context o f expatriations by renunciation o f citizenship as\nclosely as they generally scrutinize crim inal plea bargains.\n\n235\n\n\x0c'