b"Authority to Investigate Federal Aviation Administration\nEmployee Complaints Alleging Reprisal for Whistleblowing\nThe O ffice o f S pecial C ounsel lacks authority to investigate com plaints brought by Federal Aviation\nA d m inistration em ployees alleging reprisals against them in response to w histleblow ing activity.\n\nSeptember 23, 1997\nM e m o r a n d u m O p in io n f o r t h e S p e c ia l C o u n s e l\n\nU.S.\n\nO ffic e o f S p e c ia l C o u n s e l\n\nThis responds to the Deputy Special Counsel\xe2\x80\x99s letter of May 20, 1997,\nrequesting our legal opinion on the authority of the O ffice.of Special Counsel\n(\xe2\x80\x9c OSC\xe2\x80\x9d ) to investigate complaints brought by employees of the Federal Aviation\nAdministration (\xe2\x80\x9c FAA\xe2\x80\x9d ) alleging reprisals for whistleblowing.1 For the reasons\nset forth below, we conclude that OSC lacks authority to investigate such com\xc2\xad\nplaints.\nI. BACKGROUND\nIn the 1996 Department of Transportation and Related Agencies Appropriations\nAct, Congress directed the FAA to establish a \xe2\x80\x9c personnel management system\nto address the unique demands o f the agency\xe2\x80\x99s work force.\xe2\x80\x9d Department of\nTransportation and Related Agencies Appropriations Act for Fiscal Year 1996,\nPub. L. No. 104\xe2\x80\x9450, \xc2\xa7347, 109 Stat. 436, 460 (1995), as amended by Pub. L.\nNo. 104-122, 110 Stat. 876 (1996), reprinted in 49 U.S.C.A. \xc2\xa7 L06 note (West\n1997) ( \xe2\x80\x9c DOT Appropriations A ct\xe2\x80\x9d or \xe2\x80\x9c Act\xe2\x80\x9d ).2 Section 347(b) of the Act pro\xc2\xad\nvides that title 5 of the United States Code is inapplicable to FAA personnel mat\xc2\xad\nters, with certain enumerated exceptions:\n(b) The provisions of title 5, United States Code, shall not apply\nto the new personnel management system developed and imple\xc2\xad\nmented pursuant to subsection (a), with the exception o f \xe2\x80\x94\n1 Letter for Dawn E. Johnseti, Acting Assistant Attorney General, Office of Legal Counsel, from James A. Kahl,\nDeputy Special Counsel, U S. O ffice of Special Counsel (May 20, 1997) ( \xe2\x80\x9c OSC Letter\xe2\x80\x9d ). This letter enclosed an\nundated memorandum from the FAA, together with supporting documentation, setting forth the FAA\xe2\x80\x99s position on\nthe issue.\n2 Section 347 o f the Act provides in part\n(a) In consultation with the employees o f the Federal Aviation Administration and such non-governmental\nexperts in personnel management systems as he may employ, and notwithstanding the provisions o f title\n5, United States Code, and other Federal personnel laws, the Administrator of the Federal Aviation\nAdministration shall develop and implement, not later than January I, 1996, a personnel management\nsystem for the Federal Aviation Administration that addresses the unique demands on the agency\xe2\x80\x99s\nw orkforce\n109 Stat at 460 (emphasis added)\n\n178\n\n\x0cAuthonty to Investigate Federal Aviation Administration Employee Complaints Alleging Reprisal fo r\nWhistleblowing\n\n(1) section 2302(b), relating to whistleblower protection',\n(2) sections 3308-3320, relating to veterans\xe2\x80\x99 preference;\n(3) chapter 71, relating to labor-management relations;\n(4) section 7204, relating to antidiscrimination;\n(5) chapter 73, relating to suitability, security, and conduct;\n(6) chapter 81, relating to compensation for work injury; and\n(7) chapters 83-85, 87, and 89, relating to retirement,\nunemployment compensation, and insurance coverage.\n109 Stat. at 460 (emphasis added).\nSection 2302(b) of title 5 lists eleven prohibited personnel practices, but section\n347(b) of the DOT Appropriations Act adopts for the FAA personnel management\nsystem only those \xe2\x80\x9c relating to whistleblower protection,\xe2\x80\x9d which are found in sub\xc2\xad\nsection (8) of \xc2\xa7 2302(b). That subsection prohibits federal government supervisors\nfrom taking retaliatory personnel actions against employees who disclose agency\nlegal violations, gross mismanagement or waste of funds, abuses of authority, or\nsubstantial and specific dangers to public health or safety. 5 U.S.C. \xc2\xa7 2302(b)(8)\n(1994).3 Disclosures covered under this provision include not only public disclo\xc2\xad\nsures, but also disclosures \xe2\x80\x9c to the Special Counsel, or to the Inspector General\nof an agency or another employee designated by the head of the agency to receive\nsuch disclosures.\xe2\x80\x9d Id. \xc2\xa7 2302(b)(8)(B).\nNormally, when federal employees allege that they have been subject to a\nprohibited personnel practice, including violations of the whistleblower provisions\nof \xc2\xa7 2302(b)(8), OSC has authority to receive and investigate such allegations.\nSee 5 U.S.C. \xc2\xa7 1214 (1994). If the Special Counsel finds reasonable grounds to\nbelieve that a violation has occurred and corrective action is required, the Special\nCounsel must report the determination to the Merit Systems Protection Board\n(\xe2\x80\x9c MSPB\xe2\x80\x9d ), the affected agency, and the Office of Personnel Management. Id.\n\xc2\xa7 1214(b)(2)(B). If the agency fails to act to correct the prohibited personnel prac\xc2\xad\ntice, the Special Counsel may petition the MSPB for corrective action. Id.\n\xc2\xa7 1214(b)(2)(C). Because these procedures are set forth in parts of title 5 other\nthan the provisions specifically adopted for the FAA in section 347(b) of the DOT\nAppropriations Act, the question posed by OSC is whether these procedures are\n3 Specifically, subsection 2302(b)(8) provides (hat federal govemmeni supervisors shall not, with respect to their\nauthonty over personnel actions,\n(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee\nor applicant for employment because o f\xe2\x80\x94\n(A) any disclosure o f information by an employee or applicant which the employee or applicant\nreasonably believes evidences \xe2\x80\x94 (1) a violation of any law, rule, or regulation, or ( 11) gross mis\xc2\xad\nmanagement, a gross waste o f funds, an abuse o f authority, or a substantial and specific danger\nto public health or safety, \xe2\x80\x94 if such disclosure is not specifically prohibited by law and if such\ninformation is not specifically required by Executive order to be kept secret in the interest of national\ndefense or the conduct of foreign affairs, .\n5 U S C. \xc2\xa7 2302(b)(8) The subsection also prohibits the same forms o f retaliation in response to the same kinds\nof disclosures \xe2\x80\x9c to the Special Counsel, or to the Inspector General of an agency or another employee designated\nby the head o f the agency to receive such disclosures.\xe2\x80\x9d Id. \xc2\xa7 2302(b)(8)(B)\n\n179\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nnonetheless included in the Act\xe2\x80\x99s application of the \xc2\xa7 2302(b) whistleblower\nprotections to FAA employees.\nOSC contends that \xe2\x80\x9c the \xe2\x80\x98whistleblower protection\xe2\x80\x99 that Congress mandated be\npreserved for FAA employees is, and always has been, inseparable from OSC\xe2\x80\x99s\ninvestigatory and enforcement functions,\xe2\x80\x9d OSC Letter at 5, and therefore that sec\xc2\xad\ntion 347(b)\xe2\x80\x99s incorporation of the whistleblower-protection provisions of 5 U.S.C.\n\xc2\xa7 2302(b) should be construed to include OSC\xe2\x80\x99s investigative and enforcement\nprovisions. The FAA, in contrast, asserts that the Act makes applicable to the\nFAA the substantive protection from whistleblower reprisals, but does not incor\xc2\xad\nporate OSC enforcement procedures or MSPB review. Therefore, the FAA claims,\ncomplaints based on alleged reprisal for whistleblowing, like other personnel dis\xc2\xad\nputes raised by FAA employees, should be handled under the mechanisms of the\nnewly authorized FAA personnel management system.\nII. ANALYSIS\nA.\nCongress specified in the DOT Appropriations Act that the FAA should develop\na new personnel management system \xe2\x80\x9c notwithstanding the provisions of title 5,\nUnited States Code, and other Federal personnel laws.\xe2\x80\x9d DOT Appropriations Act\n\xc2\xa7 347(a). It repeated that \xe2\x80\x9c [t]he provisions of title 5, United States Code, shall\nnot apply to the new personnel management system\xe2\x80\x9d when it listed seven specific\nexceptions from the withdrawal of title 5 coverage. Id. \xc2\xa7 347(b). Thus, Congress\nwas clear that title 5 would not apply to the FAA unless it provided otherwise.\nWe have proceeded to consider, therefore, whether Congress provided for applica\xc2\xad\ntion to the FAA of the title 5 OSC procedures normally followed in whistleblower\ncases, by addressing two possibilities: (1) that the text of 5 U.S.C. \xc2\xa7 2302(b)(8)\nitself sufficiently incorporates the OSC procedures; or (2) that the OSC procedures\nare such an essential element of the whistleblower protections of \xc2\xa7 2302(b) that\nCongress must have implicitly included them in the provision extending sub\xc2\xad\nstantive whistleblower protections to FAA employees.\nB.\nThere is only one explicit reference to OSC in the provisions that are made\napplicable to the FAA under 5 U.S.C. \xc2\xa7 2302(b). Generally, \xc2\xa7 2302(b) defines\nprohibited personnel practices but does not prescribe the mechanisms for inves\xc2\xad\ntigation and enforcement, which, for whistleblower protections, are provided in\nchapter 12 of title 5. See 5 U.S.C. \xc2\xa7\xc2\xa71201-1222 (1994 & West Supp. 1997).\nSubsection 2302(b)(8), however, defines protected \xe2\x80\x9c whistleblowing\xe2\x80\x9d to include\ndisclosures made \xe2\x80\x9c to the Special Counsel\xe2\x80\x9d as well as to agency Inspectors Gen\xc2\xad\n180\n\n\x0cAuthority to Investigate Federal Aviation Administration Employee Complaints Alleging Reprisal fo r\nWhistleblowing\n\neral or to other agency employees authorized to receive such disclosures. Id.\n\xc2\xa7 2302(b)(8)(B). Although OSC does not rely on this reference in its submission,\nwe have nonetheless considered whether it somehow incorporates the OSC proce\xc2\xad\ndures as part of the substantive protection extended to FAA employees by section\n347(b).\nThe reference to disclosures to the Special Counsel, as well as to Inspectors\nGeneral and to authorized agency officials, merely reflects Congress\xe2\x80\x99s efforts to\ndefine expansively the universe of persons to whom protected disclosures may\nbe made without fear of retaliation. It does not independently authorize the inves\xc2\xad\ntigative and enforcement powers that the referenced officials possess. Instead,\nthose powers are authorized separately in chapter 12 of title 5. Thus, we do not\nbelieve that \xc2\xa7 2302(b)(8)(B)\xe2\x80\x99s reference to disclosures to the Special Counsel can,\nby itself, be construed to mean that Congress applied to the FAA the panoply\nof OSC investigative and enforcement provisions authorized under separate provi\xc2\xad\nsions of title 5 when it retained \xc2\xa7 2302(b)(8) as part of the FAA personnel manage\xc2\xad\nment system.\nC.\nOSC does contend, however, that \xc2\xa7 2302(b)(8) is not self-executing and that\nthe whistleblower protections extended by the Act to FAA employees necessarily\ninclude the OSC procedures. This contention is based on OSC\xe2\x80\x99s view that Con\xc2\xad\ngress gave it a special role in the protection of whistleblowers, so that those\nprotections are rendered ineffectual unless OSC has jurisdiction over their claims\nof reprisal.\nIn making this argument, OSC invokes the legislative histories of both the Civil\nService Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (\xe2\x80\x9c CSRA\xe2\x80\x9d ) and\nthe Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16\n(\xe2\x80\x9c WPA\xe2\x80\x9d ).4 The CSRA established whistleblower reprisals as one of the eleven\nprohibited personnel practices of \xc2\xa7 2302(b), and authorized the MSPB and its Spe\xc2\xad\ncial Counsel (the Special Counsel was attached to the MSPB under the original\nCSRA) to enforce that protection. See S. Rep. No. 95-969, at 8 (1978), reprinted\nin 1978 U.S.C.C.A.N. at 2730. The Senate Report explained the role originally\ncontemplated for the Special Counsel in whistleblowing cases:\nFor the first time, and by statute, the Federal Government is given\nthe mandate \xe2\x80\x94 through the Special Counsel of the Merit Systems\nd With respcct to the DOT Appropriations Act itself. OSC has not identified (and we have not found) legislative\nhistory providing evidence that Congress intended the OSC investigative and enforcement authonty aulhonzed under\nchapter 12 of title 5 to apply to claims o f whistleblower retaliation by FAA employees The Conference Report\non Pub L No 104\xe2\x80\x9450. tor example, is not instructive on the issue See H R Conf Rep No 104-286. at 76\n(1995) (descnbing the Conference amendment to the FAA personnel management provision of section 347 by merely\nstating that it \xe2\x80\x9c [rjctainfed], with amendment, language in the Senate bill requinng development of a new personnel\nmanagement system for the Federal Aviation Administration.\xe2\x80\x9d ).\n\n181\n\n\x0cOpinions o f the Office o f Legal Counsel m Volume 21\n\nProtection Board \xe2\x80\x94 to protect whistle blowers from improper\nreprisals. The Special Counsel may petition the Merit Board to sus\xc2\xad\npend retaliatory actions against whistle blowers. Disciplinary action\nagainst violators of whistle blowers\xe2\x80\x99 rights also may be initiated\nby the Special Counsel.\nId.\n\nThe WPA was subsequently enacted in response to perceived conflicts between\nthe Special Counsel\xe2\x80\x99s duty to protect the rights of employees and its role in pro\xc2\xad\ntecting the civil service merit system. See 135 Cong. Rec. 5034 (1989) (Joint\nExplanatory Statement on S. 508). In resolving this conflict, the WPA established\nthe Office of Special Counsel \xe2\x80\x9c as a separate, distinct, and independent entity.\xe2\x80\x9d\nId. at 5032 (statement of Rep. Sikorski). The WPA also established that \xe2\x80\x9c the\nprimary role of the Office of Special Counsel is to protect employees, especially\nwhistleblowers, from prohibited personnel practices,\xe2\x80\x9d and that \xe2\x80\x9c the protection of\nindividuals who are the subject of prohibited personnel practices remains the\n[OSC\xe2\x80\x99s] paramount consideration.\xe2\x80\x9d WPA \xc2\xa7 2(b)(2)(A)-(C), 135 Cong. Rec. at\n5026. As further explained in a Joint Explanatory Statement inserted in the record\nof the House debate on the WPA:\nSimply put, the Special Counsel must never act to the detriment\nof employees who seek the help of the Special Counsel. Unless\nemployees have the assurance that the Office of Special Counsel\nis a safe haven, the Office can never be effective in protecting vic\xc2\xad\ntims of prohibited personnel practices.\n135 Cong. Rec. at 5034 (Joint Explanatory Statement on S. 508).\nThis legislative history, OSC contends, establishes that the protection and the\nprocedures incorporated in the CSRA and the WPA must go hand in hand. OSC\nfurther emphasizes that, when Congress passed the WPA, it limited OSC\xe2\x80\x99s\nauthority to release information about whistleblowers to their employing agencies,\nand thus \xe2\x80\x9c reaffirmed that a key element of whistleblower protection for federal\nemployees is an independent agency that ensures that information discovered\nduring an investigation is not put to use by the agency against the employee.\xe2\x80\x9d\nOSC Letter at 3\xe2\x80\x944.\nWe do not dispute the validity of OSC\xe2\x80\x99s assertions that Congress generally\nbelieved that the whistleblower protections provided under title 5 should be\nenforced by OSC. We are not persuaded, however, that the legislative history\non which OSC relies demonstrates, as OSC contends, that Congress believed that\nwhistleblower protections are inherently meaningless unless an independent entity\n182\n\n\x0cAuthority to Investigate Federal Aviation Administration Employee Complaints Alleging Reprisal fo r\nWhistleblowing\n\nsuch as OSC enforces them.5 Although the passages reveal a congressional pref\xc2\xad\nerence for independent enforcement as a general matter, and concern about agency\nretaliation, those preferences and concerns must be considered in light of the later\nenacted provisions of section 347 of the DOT Appropriations Act. Congressional\nintent in passing that statute, rather than in passing the CSRA or the WPA, is\nmost critical in resolving the issue presented here.\nThe predominant congressional purpose of section 347 of the DOT Appropria\xc2\xad\ntions Act was to address the unique personnel needs of the FAA with a suitably\nmodified personnel management system, outside the purview o f title 5. Pub. L.\nNo. 104\xe2\x80\x9450, \xc2\xa7 347, 109 Stat. at 460. Notwithstanding the significance of the role\nOSC plays in enforcing the whistleblower-protection provisions and other govern\xc2\xad\nment personnel laws, OSC\xe2\x80\x99s investigative and enforcement authority is part and\nparcel of the government personnel regulatory structure embodied in title 5, which\nCongress rejected for the FAA. Considering the objectives of the 1996 FAA per\xc2\xad\nsonnel management reform legislation, it does not seem anomalous that Congress\nwould allow the FAA to deal with alleged prohibited personnel practices,\nincluding whistleblower-reprisal matters, under the FAA\xe2\x80\x99s new internal grievance\nor administrative procedures.\n\nD.\nOur approach to this question is guided by basic canons of statutory construc\xc2\xad\ntion. Although the interpretive canon \xe2\x80\x9c expressio unius est exclusio alterius \xe2\x80\x9d\nshould be applied with caution, we believe it applies here with some force. As\nthe Supreme Court has observed, \xe2\x80\x9c [wjhere Congress explicitly enumerates certain\nexceptions to a general prohibition, additional exceptions are not to be implied,\nin the absence of evidence of a contrary legislative intent.\xe2\x80\x9d Andrus v. G lover\nConstr. Co., 446 U.S. 608, 616-17 (1980).\nIn section 347(b), Congress \xe2\x80\x9c enumerate[d] certain exceptions\xe2\x80\x9d to its general\nmandate that the provisions of title 5 would not apply to FAA personnel matters.\nIn the case of whistleblower reprisal, Congress listed only the substantive prohibi\xc2\xad\ntion among the excepted provisions, but did not list the separate provisions of\ntitle 5 providing for OSC and MSPB enforcement jurisdiction over such matters.\nThis selective incorporation of only the substantive whistleblower provisions\nappears to be the very kind of explicit enumeration that forecloses the inference\nthat additional exceptions were intended under the expressio unius canon applied\nin G lover Construction and similar authorities.\nNor does it appear that the limited incorporation of only the substantive whistle\xc2\xad\nblower protection provision was merely inadvertent. In contrast to the whistle\xc2\xad\nblower provision, other provisions of title 5 retained for the new FAA system\n5 As we note below, for example, Congress has enacted numerous whistleblower protection laws for the employees\nof federally regulated or quasi-govemmental financial institutions and those laws do not involve enforcement by\nan independent investigative agency such as OSC See note 9, infra\n\n183\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nunder section 347(b) were broadly drawn to incorporate not only discrete sub\xc2\xad\nstantive measures but entire regulatory and enforcement schemes.6 Thus, close\nexamination of section 347(b) reveals that Congress listed the portions of title\n5 that were to apply to the FAA\xe2\x80\x99s personnel management system with deliberate\nselectivity. Congress could have readily incorporated OSC\xe2\x80\x99s whistleblower\nenforcement procedures as part o f the new FAA system in the same manner that\nit incorporated other enforcement and regulatory schemes in the explicit language\nof section 347(b). Its failure to do so is difficult to reconcile with the view that\nCongress intended to apply those procedures to the FAA.\nGenerally, when Congress incorporates a specific statutory subsection by ref\xc2\xad\nerence in subsequent legislation, it intends to have accomplished no more than\nwhat is afforded by that subsection. See, e.g., Sperling v. Hoffmann-La Roche,\nInc., 24 F.3d 463, 469-70 (3d Cir. 1994) (where Congress was precise in selecting\nthe portions of other acts \xe2\x80\x9c selectively incorporated]\xe2\x80\x9d into the Age Discrimination\nin Employment Act, only the subsections specifically named in the statute were\nincorporated).7\nMoreover, when Congress intends to exempt entities generally from title 5 but\nto apply not only the substantive whistleblower protections but also all the\nancillary enforcement procedures set forth in chapter 12 (see 5 U.S.C. \xc2\xa7\xc2\xa7 1201\xe2\x80\x94\n1219), it has demonstrated that it knows how to do so unambiguously. Thus, when\nCongress applied only selected provisions of title 5 to the Panama Canal Commis\xc2\xad\nsion, it provided for application o f the whistleblower protection provisions as fol\xc2\xad\nlows: \xe2\x80\x9c Section 2302(b)(8) (relating to whistleblower protection) and all provisions\no f Title 5 relating to the administration o r enforcement or any other aspect\nthereof, as identified in regulations prescribed by the Commission in consultation\n\nwith the Office of Personnel Management.\xe2\x80\x9d 22 U.S.C.A. \xc2\xa73664(3) (West Supp.\n1997) (emphasis added). Similarly, when Congress excluded the Federal Bureau\nof Investigation from the general regulation of federal agency personnel practices,\nsee 5 U.S.C.A. \xc2\xa7 2302(a)(2)(C)(ii) (West Supp. 1997), it prohibited whistleblower\nreprisals and specified that \xe2\x80\x9c [t]he President shall provide for the enforcement of\nthis section in a manner consistent with applicable provisions of sections 1214\n6 Among the provisions explicitly applied to the FAA under section 347(b), for example, chapter 73 of title 5\nincorporates an entire program o f penalties and procedures governing employee \xe2\x80\x9c suitability, security, and conduct \xe2\x80\x9c\nIt includes specific procedures and rulemaking authonty for dealing with employee violations of the illegal gift\nrules, 5 U S C \xc2\xa7 7 3 5 l(b )-(c ) (1994), and provtsion for the MSPB to impose or mitigate penalties for illegal political\nactivities by federal employees, id. \xc2\xa77326 Similarly, chapter 81 o f title 5 encompasses the comprehensive regulatory\nand procedural scheme for w orker\xe2\x80\x99s compensation in federal employment, including the procedures for asserting,\nevaluating, and resolving a claim See 5 U S C. \xc2\xa7\xc2\xa78119-8128 (1994) Chapter 84 of title 5 incorporates not only\nthe substance o f the Federal Em ployees\xe2\x80\x99 Retirement System, but also the provisions for the presentation and adjudica\xc2\xad\ntion o f claims ansing under that system See 5 U S C A. \xc2\xa7\xc2\xa78461-8467 (West 1996) The broad incorporation of\nthese provisions stands in conspicuous contrast to section 347(b)\xe2\x80\x99s narrow reference to the whisleblower protection\nprovision o f \xc2\xa7 2302(b) only, with no reference to the enforcement provisions of chapter 12.\n7 Conversely, when Congress cites to a general provision o f a statute, it is error to presume that the reach of\nthe reference is confined to a specific subsection See E.I. du Pont de Nemours & Co v Train, 430 U S 112,\n136 (1977) ( \xe2\x80\x9c [l]n other portions o f \xc2\xa7509 [of the Federal W ater Pollution Control ActJ, Congress referred to specific\nsubsections o f the Act and presumably would have specifically mentioned \xc2\xa7 301(c) if only action pursuant to that\nsubscction were intended to be reviewable m the court of appeals \xe2\x80\x9d )\n\n184\n\n\x0cAuthonty to Investigate Federal Aviation Administration Employee Complaints Alleging Reprisal fo r\nWhistleblowing\n\nand 1221 of this title [i.e., the OSC and MSPB enforcement provisions].\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 2303(c) (1994).\nThe absence of any similar reference to the whistleblower protection enforce\xc2\xad\nment provisions of title 5 in section 347(b)(1) of the DOT Appropriations Act\nsupports our conclusion that Congress did not intend those provisions to apply\nto the FAA. Cf. Badaracco v. Commissioner, 464 U.S. 386, 395 (1984) (when\nCongress intends to accomplish a precise statutory end, \xe2\x80\x9c it knows how unambig\xc2\xad\nuously to accomplish that result\xe2\x80\x9d ); Middlesex County Sewerage Auth. v. National\nSea Clammers A ss\xe2\x80\x99n, 453 U.S. 1, 15 (1981) (\xe2\x80\x9c [i]n the absence of strong indicia\nof a contrary congressional intent, we are compelled to conclude that Congress\nprovided precisely the remedies it considered appropriate\xe2\x80\x9d ); Lannom Mfg. Co.\nv. United States Int'l Trade Com m \xe2\x80\x99n, 799 F.2d 1572, 1580 (Fed. Cir. 1986)\n( \xe2\x80\x9c when Congress intends to grant a right of action, it does so clearly and unambig\xc2\xad\nuously\xe2\x80\x9d ).8\nE.\nFinally, we do not find that FAA employees are deprived of meaningful protec\xc2\xad\ntion against whistleblower reprisals under the FAA\xe2\x80\x99s new personnel management\nsystem. That system fully incorporates the provisions of 5 U.S.C. \xc2\xa7 2302(b)(8)\nas a prohibited personnel practice. See Federal Aviation Administration Personnel\nManagement System, Para. VIII((a)(vi) p. v (1996) (\xe2\x80\x9c FAAPMS\xe2\x80\x9d ). An FAA\nemployee who suffers a significant adverse personnel action (e.g., a suspension\nof over 14 days, reductions in pay or grade, and removal or reduction-in-force\nactions) that he or she believes is motivated by whistleblower reprisal can there\xc2\xad\nfore invoke the provisions of section 2302(b)(8) under the FAA Appeals Proce\xc2\xad\ndure.\nThat procedure guarantees the aggrieved employee an evidentiary hearing before\na panel of three arbitrators. FAAPMS Ch. III.5.9 If the employee fails to obtain\nsatisfactory relief under these procedures, judicial review is available. The FAA\n8 A number of other federal statutes apply various forms o f whistleblower protection to the employees of govern\xc2\xad\nment contractors and the employees of federally established or regulated financial institutions See 10 U S C \xc2\xa7 2409\n(1994) (Department o f Defense contractors\xe2\x80\x99 employees), 12 U S C \xc2\xa7 I441a(q) (1994) (Resolution Trust Corporation\nemployees), 12 U S .C \xc2\xa7 1790b (1994) (federally-insured credit union employees), 12 U S C \xc2\xa7 18 3 lj(a) (1994)\n(employees o f federal banking agencies), 31 U .S C \xc2\xa75328 (1994) (non-depository financial institutions); and 41\nU S C \xc2\xa7 265(b) (1994) (government contractors\xe2\x80\x99 employees) These statutes all specify a particular mode of enforce\xc2\xad\nment, i . e , investigations by agency Inspectors General followed by agency- or court-ordered remedies in the case\no f government contractor employees, see, e.g., 10 U S C \xc2\xa7 2409(c), and direct enforcement by employee civil actions\nin U S district court in the case o f the financial institution employees, see, e g , 12 U S C \xc2\xa7 1790b(b) These statutes\nfurther reinforce our view that Congress specifies the whistleblower enforcement remedies it intends to enact, rather\nthan implying them\n9 The arbitration panels for the FAA Appeals Procedure are composed of one neutral arbitrator, one \xe2\x80\x9c partisan\xe2\x80\x9d\nselected by the appellant-employee from within the FAA, and one \xe2\x80\x9c partisan\xe2\x80\x9d selected by an FAA official from\n(he area within the FAA where the appeal was generated FAAPMS Ch. 1115(e) A \xe2\x80\x9c partisan\xe2\x80\x9d means an FAA\nemployee who is knowledgeable o f the working condiuons, environment, and practices of the work area where\nthe appeal was filed, the partisan selected by management cannot be the proposing official or the deciding official\nId Ch 111 5(c)(u).\n\n185\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nAppeals Procedure expressly provides that decisions of the panel shall be issued\nas final orders of the FAA Administrator under 49 U.S.C. \xc2\xa746110 (1994), which\nare subject to judicial review upon petition to the U.S. Court of Appeals. FAAPMS\nCh. III.5(m). Additionally, when alleged whistleblower reprisal does not involve\na significant adverse action that is subject to the FAA Appeals Procedure, the\naggrieved FAA employee may pursue his charges under the FAA Grievance\nProcedure. Id. Ch. III.4.\nWe acknowledge, as OSC points out, that these procedures are not coextensive\nwith those provided by OSC under title 5 \xe2\x80\x94 particularly in the absence of a neutral\nenforcement body like OSC to investigate alleged violations \xe2\x80\x94 but they nonethe\xc2\xad\nless provide a reasonable mechanism to enforce the provisions of the whistle\xc2\xad\nblower reprisal statute on behalf o f FAA employees.10 For example, OSC empha\xc2\xad\nsizes that, unlike the specific standards o f proof governing employee claims of\nwhistleblower reprisal governed by the provisions of 5 U.S.C. \xc2\xa71214, the\napplicable FAA appeals and grievance procedures provide no guidance for estab\xc2\xad\nlishing the burden of proof that must be satisfied when such claims are asserted\nby FAA employees. OSC Letter at 5. Although specific rules governing the\nstandard o f proof may be desirable, the absence of such rules does not render\nthe FAA procedures incapable of providing a reasonable means for enforcement\nof the whistleblower protection statute.11 Rather, the more flexible hearing proce\xc2\xad\ndures adopted by the FAA are consistent with Congress\xe2\x80\x99s intent to allow it to\ndevelop a personnel management system outside the purview of title 5 \xe2\x80\x9c that\naddresses the unique demands on the agency\xe2\x80\x99s workforce.\xe2\x80\x9d DOT Appropriations\nAct \xc2\xa7 347(a).\nWhatever shortcomings may be discerned in the FAA\xe2\x80\x99s current procedures for\nimplementing the whistleblower protection law, they do not demonstrate that OSC\nenforcement under the procedures of title 5 is so indispensable to the whistle\xc2\xad\nblower protection law that Congress could not have intended any other mechanism\nto apply under the FAA personnel management system. Rather, while section 347\nof the Act provides the FAA with sufficient authority to implement the\nwhisteblower protection law effectively, it does not guarantee perfect implementa\xc2\xad\n1(1W e also acknowledge O SC \xe2\x80\x99s point that FAA probationary employees apparently do not have access to the\ncurrent FAA Appeals and Grievance Procedures because they are not covered \xe2\x80\x9c employees\xe2\x80\x9d under those procedures\nSee FAAPMS Chs. Ill 4(d)(ii) and Iff 5(c)(m) Probationary employees aggrieved by unlawful reprisal action, how\xc2\xad\never, could still make use o f whatever formal o r informal mechanisms are provided by the FAA for complaints\nby probationary employees, or lodge charges against the responsible supervisors with DOT\xe2\x80\x99s Inspector General\nIn any event, this gap in the coverage of FA A \xe2\x80\x99s grievance and appeals procedures does not establish that OSC\nenforcement procedures arc so essential to whistleblower protection that Congress must have intended for them\nto apply to the FAA when it enacted section 347 o f the DOT Appropriations Act, it merely demonstrates a possible\ndeficiency in the FA A \xe2\x80\x99s implementation of the whistleblower protection provisions made applicable to it by that\nAct\n11 We do not understand OSC to contend, nor do we believe, that the absence of specific provisions for allocating\nthe burden o f proof in the FA A \xe2\x80\x99s internal appeal and grievance procedures is a matter of constitutional concern\nThe Supreme Court has repeatedly stated that \xe2\x80\x9c |o|utside the criminal law area, where special concerns attend, the\nlocus o f the burden of persuasion is normally not an issue o f federal constitutional moment \xe2\x80\x9d Concrete Pipe and\nProds, o f Cat.. Inc v. Construction Laborers Pension Trust fo r Southern C a l, 508 U S 602, 626 (1993) (quoting\nLav m e v M ilne, 424 U S 577, 585 (1976)).\n\n186\n\n\x0cAuthority to Investigate Federal Aviation Administration Employee Complaints Alleging Reprisal fo r\nWhistleblowing\n\ntion by the agency. Although the alleged deficiencies in the FAA\xe2\x80\x99s procedures\nraised by OSC may provide grounds for further assessment of those procedures,\nthey do not provide persuasive evidence that Congress intended OSC enforcement\nprocedures to apply to the FAA in whisteblower reprisal cases.\nConclusion\nA reasonable argument can be made that FAA employees would benefit from\nthe protections of various provisions of title 5 that, like the OSC/MSPB enforce\xc2\xad\nment provisions of 5 U.S.C. \xc2\xa7 1214, were not incorporated in the new FAA per\xc2\xad\nsonnel management system through section 347(b) of the Act. That choice, how\xc2\xad\never, was for Congress to make in enacting the law, not for those who are required\nto interpret and apply what Congress enacted. Congress incorporated only selected\nprovisions of title 5 into the FAA personnel management system, and the inves\xc2\xad\ntigative and enforcement authorities of OSC were not among them.12 Accordingly,\nwe conclude that OSC is without statutory authority to investigate or otherwise\npursue alleged violations of 5 U.S.C. \xc2\xa7 2302(b)(8) asserted by FAA employees.\nRICHARD L. SHIFFRIN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n12 O ur conclusion is consistent with a decision issued by an Administrative Law Judge \xe2\x80\x9c (A U )\xe2\x80\x9d o f the MSPB\nregarding another provision o f title 5 \xe2\x80\x94 MSPB\xe2\x80\x99s jurisdiction over employee appeals under subchapter II o f ch. 75 \xe2\x80\x94\ninvoked by an FAA employee challenging his removal from his position o f employment. Allen v. D epartment o f\nTransp.t No. C H -0 7 5 2 -9 7 -0 0 2 6 -1 -1 (MSPB Central Regional Field Office, 1996) ( \xe2\x80\x9c Initial Decision\xe2\x80\x9d ), petition fo r\nreview pending, No. 97-3163 (Fed. Cir. 1997). The A U ruled that, under the new FAA personnel management\nsystem enacted by Pub. L. No. 104-50, the MSPB no longer had jurisdiction over such appeals. As the A U observed:\nChapter 75 o f Title 5, which provides for a right o f appeal to the Board from adverse actions to those\nw ho meet the definition o f employee, is not listed as one o f the provisions of Title 5 which remain\napplicable to the FAA personnel management system.\nInitial Decision at 2.\n\n187\n\n\x0c"


b'(Slip Opinion)\n\nExclusion of Agency Counsel from Congressional\nDepositions in the Impeachment Context\nCongressional committees participating in an impeachment inquiry may not validly\ncompel executive branch witnesses to testify about matters that potentially involve\ninformation protected by executive privilege without the assistance of agency counsel.\nCongressional subpoenas that purport to require executive branch witnesses to appear\nwithout agency counsel in these circumstances are legally invalid and are not subject\nto civil or criminal enforcement.\nNovember 1, 2019\n\nLETTER OPINION FOR THE COUNSEL TO THE PRESIDENT\nOn October 31, 2019, the House of Representatives voted to authorize\ncertain committees to investigate \xe2\x80\x9cwhether sufficient grounds exist for the\nHouse of Representatives to exercise its Constitutional power to impeach\xe2\x80\x9d\nPresident Trump. H.R. Res. 660, 116th Cong. (2019). Although the House\nresolution directs the House Permanent Select Committee on Intelligence\n(\xe2\x80\x9cHPSCI\xe2\x80\x9d) to conduct \xe2\x80\x9copen and transparent investigative proceedings\xe2\x80\x9d\nin connection with this inquiry, id. \xc2\xa7 2 (title), we understand that HPSCI\nnonetheless insists that executive branch employees appear next week for\nclosed-door depositions from which agency counsel would be excluded.\nYou have asked whether HPSCI or the other committees involved in\nthe impeachment inquiry may validly compel executive branch witnesses\nto appear at such depositions. The HPSCI impeachment inquiry seeks\ninformation concerning presidential communications, internal executive\nbranch deliberations, and diplomatic communications arising in connection with U.S. foreign relations with Ukraine. As a result, the depositions\nseek testimony from executive branch employees concerning matters\npotentially protected by executive privilege. Consistent with our prior\nadvice, we conclude that the congressional committees participating in the\nimpeachment investigation authorized by the resolution may not validly\nrequire executive branch witnesses to appear without the assistance of\nagency counsel in connection with such depositions. See Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. __, *7\xe2\x80\x9313 (May 23, 2019) (\xe2\x80\x9cExclusion of Agency\nCounsel \xe2\x80\x9d). HPSCI could address this separation of powers problem by\nallowing agency counsel to assist the employee during the deposition.\nShould the committee not do so, however, a subpoena purporting to\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nrequire a witness to appear without such assistance would be invalid and\nnot subject to civil or criminal enforcement. See id. at *13\xe2\x80\x9314.\nWe have previously advised, in the context of legislative oversight investigations, that Congress may not prohibit agency counsel from accompanying employees called to testify about matters that potentially involve\ninformation protected by executive privilege. As we explained, \xe2\x80\x9cthe\nexclusion of agency counsel impairs the President\xe2\x80\x99s ability to exercise his\nconstitutional authority to control privileged information of the Executive\nBranch\xe2\x80\x9d and \xe2\x80\x9chis constitutional authority to supervise the Executive\nBranch\xe2\x80\x99s interactions with Congress.\xe2\x80\x9d Id. at *8. The President has the\nconstitutional authority to protect privileged information from disclosure\nin response to congressional investigations, and to do so effectively, he\nmust be able to designate a representative to protect this interest at congressional depositions. Id. at *8\xe2\x80\x9311. In addition, the President has the\nconstitutional authority to control the activities of subordinate officials\nwithin the Executive Branch, which includes the power to control communications with, and information provided to, Congress on the Executive\nBranch\xe2\x80\x99s behalf. Id. at *11\xe2\x80\x9313. Adherence to these principles ensures that\nexecutive branch employees called to testify before Congress do not\nimproperly disclose privileged information, and that the information\nprovided is consistent with the scope of Congress\xe2\x80\x99s investigative authority.\nWe believe that these same principles apply to a congressional committee\xe2\x80\x99s effort to compel the testimony of an executive branch official in\nan impeachment inquiry. Executive privilege protects the confidentiality\nand integrity of sensitive executive branch information absent a showing\nof sufficient legislative \xe2\x80\x9cneed\xe2\x80\x9d in the context of an oversight investigation. Senate Select Comm. on Presidential Campaign Activities v. Nixon,\n498 F.2d 725, 730\xe2\x80\x9331 (D.C. Cir. 1974) (en banc). The privilege has also\nbeen recognized to protect information in connection with other kinds of\nproceedings, including criminal trials and grand-jury investigations.\nAs the Supreme Court recognized in United States v. Nixon, 418 U.S.\n683 (1974), executive privilege \xe2\x80\x9cis fundamental to the operation of Government and inextricably rooted in the separation of powers under the\nConstitution.\xe2\x80\x9d Id. at 708. While the privilege may yield to the \xe2\x80\x9clegitimate\nneeds of the judicial process\xe2\x80\x9d in connection with a criminal trial, the\nCourt recognized that \xe2\x80\x9cit is necessary to resolve those competing interests\n2\n\n\x0cExclusion of Agency Counsel in the Impeachment Context\n\nin a manner that preserves the essential functions of each branch.\xe2\x80\x9d Id. at\n707. The D.C. Circuit has applied the same principle in connection with\na grand-jury investigation, observing that privileged presidential communications \xe2\x80\x9cshould not be treated as just another source of information\xe2\x80\x9d in\nsuch an inquiry, but should instead be provided to a grand jury only upon\na demonstration of \xe2\x80\x9cwhy it is likely that evidence contained in presidential\ncommunications is important to the ongoing grand jury investigation and\nwhy this evidence is not available from another source.\xe2\x80\x9d In re Sealed\nCase, 121 F.3d 729, 755\xe2\x80\x9357 (D.C. Cir. 1997).\nWe believe that a congressional committee must likewise make a showing of need that is sufficient to overcome the privilege in connection with\nan impeachment inquiry. Although no judicial decision is directly on\npoint, the D.C. Circuit suggested as much in Senate Select Committee, in\nwhich it contrasted the Senate committee\xe2\x80\x99s \xe2\x80\x9coversight need\xe2\x80\x9d in support of\n\xe2\x80\x9clegislative tasks\xe2\x80\x9d with \xe2\x80\x9cthe responsibility of a grand jury, or any institution engaged in like functions.\xe2\x80\x9d 498 F.2d at 732 (emphasis added). The\nlatter phrase referred to the House Committee on the Judiciary, which had\n\xe2\x80\x9cbegun an inquiry into presidential impeachment.\xe2\x80\x9d Id. The D.C. Circuit\xe2\x80\x99s\nrecognition that an impeachment inquiry is similar to a grand-jury investigation implies the requirement of a similar showing of need. We need\nnot settle on the precise standard in order to address your current inquiry,\nbecause we think it sufficient to recognize that a qualified executive\nprivilege remains available, and a congressional committee must therefore\nmake some showing of need to overcome the privilege. This conclusion\nfollows from the Supreme Court\xe2\x80\x99s recognition that a dispute involving\ninformation subject to executive privilege should be resolved in a manner\nthat \xe2\x80\x9cpreserves the essential functions of each branch.\xe2\x80\x9d Nixon, 418 U.S. at\n707.1\n\n1 In a 1974 effort to summarize the then-available precedents, a \xe2\x80\x9cworking paper prepared by the staff \xe2\x80\x9d of this Office observed that \xe2\x80\x9c[p]recedents relating to the subject of\nexecutive privilege in presidential impeachment are meager, confused and inconclusive.\xe2\x80\x9d\nOffice of Legal Counsel, U.S. Dep\xe2\x80\x99t of Justice, Legal Aspects of Impeachment: An\nOverview app. 3, at 1 (Feb. 1974). Where executive branch officials have addressed the\nissue, they have typically done so outside the context of a particular impeachment inquiry.\nWhile they have sometimes acknowledged that Congress\xe2\x80\x99s interest in information in\nconnection with impeachment may be stronger than in the oversight context, they have\nnot identified a consistent standard for evaluating such requests. See id. at 6\xe2\x80\x9315, 22\xe2\x80\x9332\n(describing statements of past Presidents and Attorneys General); see also, e.g., Assertion\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nWhile HPSCI may be able to establish an interest justifying its requests\nfor information, the Executive Branch also has legitimate interests in\nconfidentiality, and the resolution of these competing interests requires a\ncareful balancing of each branch\xe2\x80\x99s need in the context of the particular\ninformation sought. See United States v. Am. Tel. & Tel. Co., 567 F.2d\n121, 127 (D.C. Cir. 1977) (\xe2\x80\x9c[E]ach branch should take cognizance of an\nimplicit constitutional mandate to seek optimal accommodation through a\nrealistic evaluation of the needs of the conflicting branches in the particular fact situation.\xe2\x80\x9d). Although HPSCI is willing to allow witnesses to\nappear with personal counsel, the accommodation process presupposes\nparticipation by appropriate representatives of the Executive Branch,\nwhich cannot occur when a committee seeks to exclude agency counsel\nfrom the room. See Exclusion of Agency Counsel, 43 Op. O.L.C. at *17\n(explaining the differences between private counsel\xe2\x80\x99s and agency counsel\xe2\x80\x99s obligations and abilities). Accordingly, where, as here, a committee\ndeposition is likely to inquire into privileged communications, the committee may not validly prevent an executive branch witness from receiving the assistance of agency counsel. See id. at *7\xe2\x80\x9313.\nBecause the committee may not bar agency counsel from assisting an\nexecutive branch witness without contravening the legitimate prerogatives\nof the Executive Branch, a HPSCI subpoena requiring such a result would\nexceed the committee\xe2\x80\x99s lawful authority and thus could not be enforced.\nAs we concluded in the oversight context, \xe2\x80\x9cit would be unconstitutional to\nenforce a subpoena against an agency employee who declined to appear\nbefore Congress, at the agency\xe2\x80\x99s direction, because the committee would\nnot permit an agency representative to accompany him.\xe2\x80\x9d Id. at *14. This\nconclusion followed from many earlier precedents of this Office, which\nrecognized that \xe2\x80\x9cthe Constitution does not permit Congress to make it a\ncrime for an official to assist the President in asserting a constitutional\nof Executive Privilege by the Chairman of the Atomic Energy Commission, 1 Op. O.L.C.\nSupp. 468, 485 (1956) (\xe2\x80\x9cEven in [impeachment] there is no precedent to the effect that the\nexecutive privilege cannot validly be invoked.\xe2\x80\x9d); Position of the Executive Department\nRegarding Investigative Reports, 40 Op. Att\xe2\x80\x99y Gen. 45, 51 (1941) (identifying impeachment proceedings as a situation in which \xe2\x80\x9cthe public interest\xe2\x80\x9d can justify disclosure of\n\xe2\x80\x9cpertinent\xe2\x80\x9d information \xe2\x80\x9cfor the good of the administration of justice\xe2\x80\x9d). Subsequent\njudicial decisions, as discussed above, are consistent with our recognition that a qualified\nprivilege applies in the context of an impeachment investigation, just as it does in a\ngrand-jury investigation.\n\n4\n\n\x0cExclusion of Agency Counsel in the Impeachment Context\n\nprivilege that is an integral part of the President\xe2\x80\x99s responsibilities under\nthe Constitution.\xe2\x80\x9d Prosecution for Contempt of Congress of an Executive\nBranch Official Who Has Asserted a Claim of Executive Privilege, 8 Op.\nO.L.C. 101, 140 (1984). 2 An executive branch employee does not violate\nthe criminal contempt-of-Congress statute by declining to appear before a\ncongressional committee based upon an instruction to protect the confidentiality interests of the Executive Branch and the separation of powers.\nHPSCI, of course, may readily avoid this problem by allowing the employee to receive the assistance of agency counsel during the deposition.\nYou have also asked whether the House\xe2\x80\x99s adoption of a resolution authorizing an impeachment inquiry would have any effect on existing\nsubpoenas. As we have previously advised you, prior to October 31, 2019,\nthe House had not vested any committee in the current Congress with the\nauthority to issue subpoenas in connection with an impeachment inquiry.\nAs a result, subpoenas issued before that date purporting to be \xe2\x80\x9cpursuant\nto\xe2\x80\x9d an impeachment inquiry were not properly authorized. Although\nHouse Resolution 660 \xe2\x80\x9cdirect[s]\xe2\x80\x9d HPSCI and other committees to \xe2\x80\x9ccontinue their ongoing investigations,\xe2\x80\x9d it does not purport to ratify any previously issued subpoena. Accordingly, while the Executive Branch may,\nand regularly does, accommodate congressional requests for information\nin the absence of a subpoena, the relevant committees would have to issue\nnew subpoenas to impose any compulsory effect on recipients.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n2 See also Testimonial Immunity Before Congress of the Former Counsel to the President, 43 Op. O.L.C. __, *20 (May 20, 2019) (\xe2\x80\x9cThe constitutional separation of powers\nbars Congress from exercising its inherent contempt power in the face of a presidential\nassertion of executive privilege.\xe2\x80\x9d); Whether the Department of Justice May Prosecute\nWhite House Officials for Contempt of Congress, 32 Op. O.L.C. 65, 65\xe2\x80\x9369 (2008) (concluding that the Department cannot take \xe2\x80\x9cprosecutorial action, with respect to current or\nformer White House officials who . . . declined to appear to testify, in response to subpoenas from a congressional committee, based on the President\xe2\x80\x99s assertion of executive\nprivilege\xe2\x80\x9d); Application of 28 U.S.C. \xc2\xa7 458 to Presidential Appointments of Federal\nJudges, 19 Op. O.L.C. 350, 356 (1995) (\xe2\x80\x9cthe criminal contempt of Congress statute does\nnot apply to the President or presidential subordinates who assert executive privilege\xe2\x80\x9d ).\n\n5\n\n\x0c'


b'Ethical Considerations Regarding\nCharitable or Political Activities\nof Department Spouses\nStatutes and regulations im pose no restrictions on the charitable or political activities o f the\nspou ses o f Department o f Justice officials, but officials m ust ensure that knowledge\nabout their spou ses\xe2\x80\x99 fundraising activities will n ot affect their impartial judgm ent with\nrespect to Department business.\n\nNovember 17, 1989\nMem orandum O\n\np in io n\n\nThe question has arisen as to the guidance that should be given to the\nspouses o f senior Department o f Justice officials who wish to engage in\ncharitable or political activities, such as fundraising for private organiza\xc2\xad\ntions. We have reviewed this issue carefully and have found no limita\xc2\xad\ntions under current statutes or Department regulations when such activ\xc2\xad\nities are undertaken by a private citizen married to a Department official.1\nEthical rules do come into play indirectly, however, due to the potential\nrepercussions o f the spouse\xe2\x80\x99s activities upon the Department official. The\nconstraints upon the spouse\xe2\x80\x99s activities are largely political rather than\nlegal, however; they stem, in large part, from the risk that some activities\no f the spouse might be construed by outsiders to reflect negatively upon\nthe Department or the official.\nWe discuss herein (1) the use o f the spouse\xe2\x80\x99s name by charitable or\npolitical organizations, (2) travel reimbursement for speaking engage\xc2\xad\nments, and (3) participation in fundraising activities.\nA. Use o f Name\n\nNo limitations apply directly to a spouse in lending his or her name to\nan organization. A spouse should take care to ensure that such references\ndo not convey the appearance o f an endorsement from the Department\nofficial or the Department itself. This is especially true if the Department\nofficial is one o f the high level officials listed in 28 C.F.R. \xc2\xa7 45.735-\n\n1In particular, the Hatch Act does not apply to spouses o f Department officers or employees.\n\n350\n\n\x0c12(d)(1) who are barred from engaging in fundraising.2 Spouses can gen\xc2\xad\nerally avoid such problems by identifying themselves as \xe2\x80\x9cMary Jones\xe2\x80\x9d\nrather than \xe2\x80\x9cMrs. James Jones\xe2\x80\x9d or \xe2\x80\x9cJames Jones\xe2\x80\x9d rather than \xe2\x80\x9cJames\nJones, the husband of the Deputy Attorney General\xe2\x80\x9d and by having their\nname appear as one of several on any mailing.\nB. Travel Reimbursement\n\nDepartment regulations impose no restriction upon the acceptance o f\nreimbursement for expenses by the spouse when travelling on personal\nbusiness. Thus, the concerns that may be raised about the propriety o f\nreimbursing a spouse when the spouse accompanies the Department offi\xc2\xad\ncial on official trips, see 28 C.F.R. \xc2\xa7 45.735-14a(d), would not be implicat\xc2\xad\ned with respect to the travel contemplated here.\nC. Fundraising\n\nUnder current law, a spouse may raise funds for a private organization,\nregardless o f whether it is a for-profit or non-profit group. Although\nissues of a financial conflict o f interest for the Department official might\narise if the spouse were a paid fundraiser,3 such issues do not arise where\nthe spouse\xe2\x80\x99s time is donated, especially for a charitable purpose. Thus,\nthere are no legal constraints on a spouse who fundraises, either as a vol\xc2\xad\nunteer for charity or as a paid fundraiser for an employer. However, a\nspouse may wish to consider whether activity as a fundraiser may raise\nsome concerns for the Department official.\nFundraising, whether voluntary or paid, does require the Department\nofficial to consider whether knowledge o f a spouse\xe2\x80\x99s work raises any con\xc2\xad\ncerns with a personal conflict o f interest or an appearance o f impropri\xc2\xad\nety. This is because the Department official is under a duty to exercise\nimpartial judgment on behalf o f his client,4 the agency that the Depart\xc2\xad\n\n2This regulation provides\nThe Attorney General, Deputy Attorney General, Associate Attorney General, and the heads\no f divisions shall not make speeches or otherwise lend their names or support in a prominent\nfashion to a fundraising dnve or a fundraising event or similar event intended for the benefit\no f any person.\nThis prohibition does not apply to a fundraising event by an organization that is exempt from taxation\nunder section 501(c)(3) o f the Internal Revenue Code 28 C F.R \xc2\xa7 45 735-12(d)(3)\n3 Unless the spouse is paid on a commission basis, the Department official would not be deemed to\nhave a financial interest in Department matters concerning companies that donated money through the\nspouse to the interested organization. 18 U.S.C. \xc2\xa7 208 Money raised for the organization employing on e\xe2\x80\x99s\nspouse is not a financial interest attributable to a Department employee as long as the spouse receives a\nfixed salary.\n4 Department officials are generally bound by the American Bar Association Code o f Professional\nResponsibility 28 C F R \xc2\xa7 45 735-l(b) The ABA Code\xe2\x80\x99s general conflict o f interest rules include a prohi\xc2\xad\nbition on any lawyer (except with the client\xe2\x80\x99s consent after full disclosure) undertaking representation\nContinued\n\n351\n\n\x0cment o f Justice is representing in any particular matter. The more that the\nDepartment official knows about a spouse\xe2\x80\x99s work \xe2\x80\x94 for example, who\nhas been approached for donations or what bonuses may be given if the\nspouse raises a large sum \xe2\x80\x94 the more likely it is that the Department offi\xc2\xad\ncial will realize that the Department\xe2\x80\x99s work for a client might have some\nimpact on the fundraising activity.5\nThus, if a spouse discusses work with the Department official, the offi\xc2\xad\ncial will need to determine on an ongoing basis whether the knowledge\ngained will affect his impartial judgment with respect to Department\nbusiness.6 If they discuss the spouse\xe2\x80\x99s work freely, there would be no\nimpact on the couple\xe2\x80\x99s personal life but some burden would be placed on\nthe Department official\xe2\x80\x99s professional life. If, however, the Department\nofficial adopted a prophylactic rule of not discussing the spouse\xe2\x80\x99s work,\nthere might be a significant impact on their personal life, but it would\neliminate the official\xe2\x80\x99s professional concerns. The official would simply\nnot know whether the spouse was trying to raise money from someone\nagainst whom the Department was contemplating, or engaged in, action.\nSince either course is entirely legal, the Department official is free to\nchoose whichever o f these options is best suited.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n4(...continued)\nwhen the lawyer\xe2\x80\x99s own financial, business, property or personal interests may impair his or her inde\xc2\xad\npendent judgment. DR 5-101 (A). If the Department official is a member o f a state bar that has adopted\nthe Model Rules o f Professional Conduct, the standard is whether he reasonably believes that his client\xe2\x80\x99s\ninterests will not be \xe2\x80\x9cmaterially limited ... by the lawyer\xe2\x80\x99s own interests.\xe2\x80\x9d Rule 1.7(b).\n6The problems could arise in various ways, such as if the Department were investigating or prosecut\xc2\xad\ning the organization for which the spouse works, some area (such as fundraising for the disabled) in\nwhich the organization was involved, or a d onor from whom the spouse was soliciting funds A worstcase scenario would be a situation such as the Department announcing that it was not indicting a m^jor\ncorporation from whom the spouse of an official with prosecuting authonty had just received a large\ndonation.\n6 For example, a Department official w ould need to evaluate whether the fact that the spouse would\nreceive a significant bonus if able to raise a certain sum from the defense industry would affect his impar\xc2\xad\ntial review o f an ongoing defense procurement investigation. Or the official might need to decide\nwhether the fact that the spouse was going to solicit funds from Company X would affect his judgment\nabout whether to approve an investigation o f that company. The likelihood of these concerns being sig\xc2\xad\nnificant is obviously speculative since they are based on facts that cannot be known in advance\n\n352\n\n\x0c'