b'Divestiture of Stock and Purchase of Government Bonds\nby an Incoming Secretary of the Treasury\nThe incoming Secretary of the Treasury may purchase government bonds with the proceeds of a stock\nsale pursuant to a certificate of divestiture properly issued under 26 U.S.C. \xc2\xa7 1043 and without\nviolating the prohibition of 31 U.S.C. \xc2\xa7 329, provided that he purchases the bonds after his commission is signed by the President but before he takes the oath of office or enters on his duties as\nSecretary of the Treasury.\n\nJune 22, 2006\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF GOVERNMENT ETHICS\nYou have asked for our opinion on whether and how an incoming Secretary of\nthe Treasury may buy government bonds with the proceeds of a stock sale\npursuant to a \xe2\x80\x9ccertificate of divestiture\xe2\x80\x9d under 26 U.S.C. \xc2\xa7 1043 (2000) consistent\nwith 31 U.S.C. \xc2\xa7 329 (2000), which forbids the Secretary from \xe2\x80\x9cbe[ing] involved\nin buying or disposing of obligations of a State or the United States Government.\xe2\x80\x9d 1\nWe believe that a certificate of divestiture under 26 U.S.C. \xc2\xa7 1043 would be\navailable when the President signs the incoming Secretary\xe2\x80\x99s commission, but that\nthe incoming Secretary would not become subject to 31 U.S.C. \xc2\xa7 329 until he\ntakes the oath of office or otherwise begins his duties. Accordingly, we conclude\nthat the incoming Secretary may purchase government bonds pursuant to a\ncertificate of divestiture properly issued under 26 U.S.C. \xc2\xa7 1043 and without\nviolating the prohibition of 31 U.S.C. \xc2\xa7 329, provided that he purchases the bonds\nafter his commission is signed by the President but before he takes the oath of\noffice or enters on his duties as Secretary of the Treasury.\nI.\nThe President has nominated Henry M. Paulson, Jr., to be Secretary of the\nTreasury: Mr. Paulson is currently the Chairman and Chief Executive Officer of\nThe Goldman Sachs Group, Inc. (\xe2\x80\x9cGoldman Sachs\xe2\x80\x9d), and holds a large stake in the\nstock of that company. The Office of Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d) has determined\nthat, to comply with conflict of interest rules and standards, Mr. Paulson will have\nto sell this stock if he becomes the Secretary.\nRecognizing the extraordinary tax liability that incoming officers and employees of the government might incur when forced to sell property for such reasons,\n1\nLetter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from\nMarilyn L. Glynn, General Counsel, Office of Government Ethics (June 9, 2006). Your question covers\nthe Secretary of the Treasury and the Treasurer of the United States, both of whom are subject to 31\nU.S.C. \xc2\xa7 329. In this opinion, we refer to the Secretary, but our analysis would cover both officers.\n\n84\n\n\x0cDivestiture of Stock and Purchase of Bonds by Incoming Secretary of the Treasury\n\nCongress has provided a mechanism for deferral of the tax. The President or the\nDirector of OGE may issue a \xe2\x80\x9ccertificate of divestiture\xe2\x80\x9d to \xe2\x80\x9can eligible person,\xe2\x80\x9d\nwhich the statute defines as \xe2\x80\x9can officer or employee of the executive branch of the\nFederal Government.\xe2\x80\x9d 26 U.S.C. \xc2\xa7 1043(a), (b)(1). The issuance of such a\ncertificate is predicated on a finding that \xe2\x80\x9cdivestiture of specific property is\nreasonably necessary to comply with any Federal conflict of interest statute,\nregulation, rule, or executive order (including section 208 of title 18, United States\nCode), or requested by a congressional committee as a condition of confirmation.\xe2\x80\x9d\n26 U.S.C. \xc2\xa7 1043(b)(2). The certificate permits deferral of federal tax on the sale\nof the property if the proceeds of the sale are invested in \xe2\x80\x9cpermitted property,\xe2\x80\x9d\ndefined as \xe2\x80\x9cany obligation of the United States or any diversified investment fund\napproved by regulations issued by the Office of Government Ethics.\xe2\x80\x9d Id.\n\xc2\xa7 1043(a), (b)(3).\nWe are informed that the sale of Mr. Paulson\xe2\x80\x99s stock will generate a large sum\nof money; that it would be unduly risky to invest the entire sum in equities or\nequity funds; and that he therefore would invest a portion in less risky securities,\nincluding government bonds. Such bonds are ordinarily \xe2\x80\x9cpermitted property\xe2\x80\x9d\nunder a certificate of divestiture. See id. \xc2\xa7 1043(b)(3). When Mr. Paulson becomes\nSecretary of the Treasury, however, he will be subject to another provision, 31\nU.S.C. \xc2\xa7 329(a)(1)(D), under which \xe2\x80\x9cthe Secretary of the Treasury and the\nTreasurer may not . . . be involved in buying or disposing of obligations of a State\nor the United States Government.\xe2\x80\x9d An officer who violates the prohibition in\nsection 329 \xe2\x80\x9cshall be fined $3,000, removed from office, and thereafter may not\nhold an office of the Government.\xe2\x80\x9d Id. \xc2\xa7 329(a)(2).\nWe understand that before May 2002 the two statutes were reconciled through\ninterpretations under which the term \xe2\x80\x9cofficer or employee\xe2\x80\x9d in 26 U.S.C. \xc2\xa7 1043\nwas taken to apply when a Secretary or Treasurer was confirmed by the Senate and\ncommissioned by the President, but the terms \xe2\x80\x9cSecretary of the Treasury and the\nTreasurer\xe2\x80\x9d in 31 U.S.C. \xc2\xa7 329 were taken to apply only when those incoming\nofficials took the oath of office. Thus, under these interpretations, after the\nPresident signed the commission of an incoming Secretary of the Treasury or\nTreasurer, the official could receive a certificate of divestiture, sell the conflicting\ninvestments, and purchase government bonds with the proceeds of the sale, as long\nas he completed this process before taking the oath of office. In 2002, however, we\nissued an opinion concluding that the conflict of interest laws under title 5 and title\n18 of the U.S. Code apply to an incoming official when he becomes an \xe2\x80\x9cofficer or\nemployee\xe2\x80\x9d under the definitions in title 5, see 5 U.S.C. \xc2\xa7\xc2\xa7 2104, 2105 (2000), and\nthat a person becomes an officer or employee as defined in title 5 only when he\nbegins the duties of the office. Application of Conflict of Interest Rules to Appointees Who Have Not Begun Service, 26 Op. O.L.C. 32 (2002) (\xe2\x80\x9c2002 Opinion\xe2\x80\x9d).\nBecause a certificate of divestiture may be issued when an \xe2\x80\x9cofficer or employee\xe2\x80\x9d\nhas to sell property to comply with the conflict of interest requirements under\ntitles 5 and 18, our 2002 Opinion raises the question whether the terms \xe2\x80\x9cofficer or\n\n85\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\nemployee\xe2\x80\x9d in 26 U.S.C. \xc2\xa7 1043 must now be given the same meaning as in titles 5\nand 18. If so, a certificate of divestiture could not be issued until the incoming\nSecretary had begun his duties, and, as explained below, 31 U.S.C. \xc2\xa7 329 at that\ntime would forbid rolling over the sale proceeds into government bonds.\nII.\nA.\nWe believe the term \xe2\x80\x9cofficer\xe2\x80\x9d in 26 U.S.C. \xc2\xa7 1043 is best interpreted in light of\nthe purposes of the law, and consistent with the traditional holding of the Supreme\nCourt in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), to include an\nincoming officer whose commission has been signed by the President but who has\nnot yet taken the oath of office or entered on the duties of the office. 2\nThe term \xe2\x80\x9cofficer\xe2\x80\x9d is susceptible of different meanings depending on the context in issue. According to the traditional understanding explained by the Supreme\nCourt in Marbury, a person becomes an \xe2\x80\x9cofficer\xe2\x80\x9d once his appointment to the\noffice is complete, and the President completes the appointment by signing the\ncommission. Chief Justice Marshall in Marbury wrote that, when the President\nsigns the commission, \xe2\x80\x9cthe officer is appointed,\xe2\x80\x9d 5 U.S. at 157 (emphasis added),\nand that the appointment \xe2\x80\x9ccreate[s] the officer,\xe2\x80\x9d id. at 156. 3 See also Appointment\nof Midshipman at Naval Academy\xe2\x80\x94Revocation, 28 Op. Att\xe2\x80\x99y Gen. 180, 187\n(1910) (characterizing Marbury as holding that when the appointment was\ncomplete, Marbury \xe2\x80\x9cwas . . . an officer\xe2\x80\x9d). 4 The appointee\xe2\x80\x99s undertaking the duties\nof the office is irrelevant to this use of the term \xe2\x80\x9cofficer.\xe2\x80\x9d For that reason, \xe2\x80\x9c[w]hen\na person, appointed to any office, refuses to accept that office, the successor is\nnominated in the place of the person who has declined to accept, and not in the\nplace of the person who had been previously in office, and had created the original\nvacancy.\xe2\x80\x9d Marbury, 5 U.S. at 161\xe2\x80\x9362.\nAs Justice Joseph Story wrote, \xe2\x80\x9c[t]he officer appointed [by the signing of the\ncommission] has then conferred on him legal rights, which cannot be resumed [by\n\n2\n\nWe do not here construe the meaning of \xe2\x80\x9cemployee\xe2\x80\x9d in 26 U.S.C. \xc2\xa7 1043.\nThere is a doctrine that, where an appointee would serve at the pleasure of the President, the\nPresident may reconsider his decision to appoint the officer even after the commission is signed and\nmay still decline to make the appointment by arresting the commission in his office\xe2\x80\x94i.e., before it\nleaves the immediate control of the President. See Case of Franklin G. Adams, 12 Op. Att\xe2\x80\x99y Gen. 304,\n306 (1867). Once the commission leaves the President\xe2\x80\x99s office, however, this doctrine would not apply.\n4\nOne sentence in the 2002 Opinion stated that appointment \xe2\x80\x9cdoes not ipso facto make the appointed person an officer or employee\xe2\x80\x9d under Marbury, 26 Op. O.L.C. at 36, but the context of the sentence\nwas a treatment of need for an appointee to accept the office before its duties and powers become his.\nThe passage cited an Attorney General opinion treating acceptance of an office as \xe2\x80\x9cthe assumption of\nofficial responsibility.\xe2\x80\x9d See Acceptance of a Promotion, 12 Op. Att\xe2\x80\x99y Gen. 229, 230 (1867).\n3\n\n86\n\n\x0cDivestiture of Stock and Purchase of Bonds by Incoming Secretary of the Treasury\n\nthe President].\xe2\x80\x9d Joseph Story, Commentaries on the Constitution of the United\nStates 573 (Ronald D. Rotunda & John E. Nowak eds., 1987) (1833) (emphasis\nadded). Thus, relying in part on Marbury, we have concluded that \xe2\x80\x9cwhere two\nofficers in the same body are commissioned on different dates, the officer\ncommissioned first is the senior.\xe2\x80\x9d Determination of Date of Commencement of\nService of Federal Officers\xe2\x80\x94Renegotiation Board, 1 Op. O.L.C. 121, 121 (1977).\nAnd, although the current rule is different, Marbury states that \xe2\x80\x9cthe salary of the\nofficer commences from his appointment\xe2\x80\x9d on the date of the commission. 5 U.S. at\n161 (emphasis added); but see Term of Judicial Salaries, 7 Op. Att\xe2\x80\x99y Gen. 303,\n307 (1855) (the statement in Marbury \xe2\x80\x9cis not good law in the broad generality of\nthe proposition\xe2\x80\x9d).\nBy contrast, someone becomes an \xe2\x80\x9cofficer or employee\xe2\x80\x9d for purposes of titles 5\nand 18 of the U.S. Code only when he begins his official duties. See 2002\nOpinion, 26 Op. O.L.C. at 32. Under 5 U.S.C. \xc2\xa7 2104, an officer is defined as\nsomeone (1) \xe2\x80\x9crequired by law to be appointed in the civil service by [the President; a court of the United-States, the head of an Executive agency; or the\nSecretary of a military department] acting in an official capacity,\xe2\x80\x9d (2) \xe2\x80\x9cengaged in\nthe performance of a Federal function under authority of law or an Executive act,\xe2\x80\x9d\nand (3) \xe2\x80\x9csubject to the supervision\xe2\x80\x9d of the President or the head of an executive\nagency or military department. This special definition leads to the conclusion that,\nuntil someone is actually performing a federal function under the supervision of a\nfederal official, he is not yet an \xe2\x80\x9cofficer\xe2\x80\x9d within the meaning of section 2104. And\nalthough title 18 does not define the term, we have relied on the title 5 definition\nof \xe2\x80\x9cofficer\xe2\x80\x9d and \xe2\x80\x9cemployee\xe2\x80\x9d as \xe2\x80\x9c\xe2\x80\x98the most obvious source of a definition\xe2\x80\x99 for title\n18 purposes.\xe2\x80\x9d 2002 Opinion, 26 Op. O.L.C. at 32 (quoting Applicability of Executive Order No. 12674 to Personnel of Regional Fishery Management Councils, 17\nOp. O.L.C. 150, 154 (1993) (\xe2\x80\x9cFishery Management Councils\xe2\x80\x9d) (quoting Status of\nan Informal Presidential Advisor as a \xe2\x80\x9cSpecial Government Employee,\xe2\x80\x9d 1 Op.\nO.L.C. 20, 20 (1977) (\xe2\x80\x9cInformal Presidential Advisor\xe2\x80\x9d))).\nThe 2002 Opinion, which set out this view of the meaning of the terms \xe2\x80\x9cofficer\xe2\x80\x9d and \xe2\x80\x9cemployee,\xe2\x80\x9d observed that we had applied the title 5 statutory definitions of \xe2\x80\x9cofficer\xe2\x80\x9d and \xe2\x80\x9cemployee\xe2\x80\x9d to the conflict of interest restrictions in Executive Order 12674, Principles of Ethical Conduct for Government Officers and\nEmployees, 3 C.F.R. 215 (1989 Comp.), and the Standards of Ethical Conduct for\nEmployees of the Executive Branch, 5 C.F.R. pt. 2635 (2006). See 2002 Opinion,\n26 Op. O.L.C. at 33 (citing Fishery Management Councils, 17 Op. O.L.C. at 150\nn.2, 158). We explained our earlier reasoning:\nFirst, we noted that we had turned to the title 5 definitions for guidance in interpreting the criminal conflict of interest laws, and\n\xe2\x80\x9c[b]ecause the objectives of the Order and its implementing regulations are closely related to those of the conflicts statutes, we\n[thought] it reasonable to look to title 5\xe2\x80\x99s definition of \xe2\x80\x98employee\xe2\x80\x99\n\n87\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\nwhen elucidating the Order.\xe2\x80\x9d Id. at 154 (citation omitted). Second,\nthe Executive Order adopts the definition of \xe2\x80\x9cagency\xe2\x80\x9d from title 5,\nwith certain exceptions, Exec. Order No. 12674, \xc2\xa7 503(c); and \xe2\x80\x9c[w]e\n[thought] it unlikely that the Order was intended to cover personnel\nwho were employed by \xe2\x80\x98agencies\xe2\x80\x99 within the meaning of title 5 but\nwho were not themselves \xe2\x80\x98employees\xe2\x80\x99 within the same title.\xe2\x80\x9d 17 Op.\nO.L.C. at 154. Third, while the Executive Order states generally that\nit is based on the authority vested in the President \xe2\x80\x9cby the Constitution and laws of the United States,\xe2\x80\x9d Exec. Order No. 12674, pmbl.,\nbut does not specify the authorizing statutes, \xe2\x80\x9cthe most obvious\nstatutory source of authority\xe2\x80\x9d is the President\xe2\x80\x99s power under title 5 to\n\xe2\x80\x9cprescribe regulations for the conduct of employees in the executive\nbranch,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7301 (2000), and this authority brings into play\nthe definition of \xe2\x80\x9cemployee\xe2\x80\x9d in title 5. 17 Op. O.L.C. at 154.\n2002 Opinion, 26 Op. O.L.C. at 33. In using the three-part test from title 5 to\ninterpret conflict of interest restrictions found outside that title, we thus relied on\nthe purposes of, as well as underlying legal authorities for, these other restrictions.\nSimilarly, in applying the three-part test to the criminal conflict of interest\nrestrictions in title 18, we underscored the specific nature of criminal prohibitions.\nWe observed that the rule of lenity weighed in favor of not diluting the test and\nthus broadening the application of the criminal sanctions in ways that could have\nharsh results. Id. at 34.\nSection 1043 of the federal tax code does not regulate the conduct of officials\nbut offers a means to facilitate their compliance with the ethics laws, including\ncompliance required as a condition of entering into office. In light of this purpose,\nwe believe that the term \xe2\x80\x9cofficer\xe2\x80\x9d in section 1043 is best read to have the traditional meaning laid down in Marbury v. Madison. An incoming official must have the\ncapacity to avoid conflicts from the moment he begins service, where the circumstances so demand. He may, for example, own substantial amounts of stock that\nwould create a financial conflict under 18 U.S.C. \xc2\xa7 208(a) (2000) in an area where\nhe would need to take urgent action immediately upon assuming the duties of his\noffice. If the official\xe2\x80\x99s holdings would be sufficiently \xe2\x80\x9csubstantial as to be deemed\nlikely to affect the integrity of the services which the Government may expect\nfrom such officer,\xe2\x80\x9d he would be ineligible for a waiver under 18 U.S.C.\n\xc2\xa7 208(b)(1). Foreseeing such a problem, and bearing in mind the obligation of\nofficers and employees \xe2\x80\x9cto avoid any actions creating [even] the appearance that\nthey are violating the law or the ethical standards promulgated pursuant to\xe2\x80\x9d the\nPresident\xe2\x80\x99s direction, see Exec. Order No. 12674, \xc2\xa7 101(n), 3 C.F.R. at 216, as\namended by Exec. Order No. 12731, 3 C.F.R. 306, 308 (1990 Comp.), the\nincoming official would need to divest himself of his holdings before entering on\nhis duties. But unless there is some period, before he undertakes the duties of his\noffice, during which he is an \xe2\x80\x9cofficer\xe2\x80\x9d under 26 U.S.C. \xc2\xa7 1043 and thus eligible for\n\n88\n\n\x0cDivestiture of Stock and Purchase of Bonds by Incoming Secretary of the Treasury\n\na certificate of divestiture, he may lack any practical means to divest that property.\nIndeed, the unavailability of a certificate of divestiture for such officers would be\n\xe2\x80\x9ca significant disincentive to the acceptance of high level policy-making positions\nin the government because of the financial burdens imposed by reason of the\nrecognition of gain,\xe2\x80\x9d To Serve with Honor: Report of the President\xe2\x80\x99s Commission\non Federal Ethics Law Reform 25 (1989), and might dissuade some officials from\nconsenting to serve. If, however, a certificate of divestiture may be granted when\nthe President signs the commission but before the officer begins his duties, such a\nconsequence\xe2\x80\x94which we cannot believe Congress intended\xe2\x80\x94can be avoided.\nThe language of section 1043, moreover, reveals that the provision is, in part,\nspecifically designed to deal with incoming officials. A certificate of divestiture is\navailable not only if the Director of OGE finds divestiture necessary to avoid\nconflicts of interest\xe2\x80\x94a determination that might apply to either incoming or\nincumbent officials\xe2\x80\x94but also specifically is available if divestiture is \xe2\x80\x9crequested\nby a congressional committee as a condition of confirmation.\xe2\x80\x9d 26 U.S.C.\n\xc2\xa7 1043(b)(2)(A). This specific focus on incoming officials reinforces the conclusion that section 1043 should be read to permit an official to resolve conflicts\nbefore he begins work.\nUnder 26 U.S.C. \xc2\xa7 1043(b)(2), a certificate of divestiture can be issued only if a\nsale of property is \xe2\x80\x9creasonably necessary to comply with any Federal conflict of\ninterest statute, regulation, rule, or executive order (including section 208 of title\n18, United States Code), or requested by a congressional committee as a condition\nof confirmation.\xe2\x80\x9d Given the purposes of section 1043, we believe that this\njudgment can be made as of when the incoming official becomes an \xe2\x80\x9cofficer\xe2\x80\x9d in\nthe traditional sense just outlined. The Director of OGE, at that point, can determine whether the officer, to achieve compliance with federal conflict of interest\nrules upon his beginning the duties of his office, needs to divest himself of any\nproperty holdings. 5\nThis interpretation, as we understand the facts, accords with existing practice as\nto the timing of certificates of divestiture. OGE\xe2\x80\x99s view has long been that the\nDirector could issue a certificate when the President signed the incoming officer\xe2\x80\x99s\ncommission. The present issue is, therefore, whether this interpretation should be\noverturned because of our 2002 Opinion, which found that the conflict of interest\nlaws under titles 5 and 18 do not apply to an incoming officer until he begins the\nduties of his office. Our interpretation here gives the term \xe2\x80\x9cofficer\xe2\x80\x9d a different\nmeaning in 26 U.S.C. \xc2\xa7 1043 from the meaning that the term has in the conflict of\ninterest laws in title 5 and title 18. Arguably, given the absence of a statutory\n5\nSection 1043 also includes a cross-reference to a definition in title 18, but it does so only to say\nthat a \xe2\x80\x9cspecial Government employee as defined in section 202 of title 18\xe2\x80\x9d is not eligible for a\ncertificate of divestiture. 26 U.S.C. \xc2\xa7 1043(b)(1)(A). The cross-reference would not support any\ninference that the meanings of terms in title 18 should apply to section 1043.\n\n89\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\ndefinition governing the provision in title 26, the title 5 definition could be \xe2\x80\x9cthe\nmost obvious source of a definition,\xe2\x80\x9d just as we concluded it was for title 18. A\ncertificate of divestiture may be issued when an \xe2\x80\x9cofficer or employee\xe2\x80\x9d has to sell\nproperty to comply with the conflict of interest requirements, most of which are in\nor pursuant to titles 5 and 18, and it therefore might be argued that section 1043\nshould incorporate the same meaning of \xe2\x80\x9cofficer\xe2\x80\x9d that applies under those titles\nand is ultimately traced to 5 U.S.C. \xc2\xa7 2104. We nonetheless conclude that\nemploying a different interpretation of the term \xe2\x80\x9cofficer\xe2\x80\x9d in the context of section\n1043 is fully consistent with the differing purposes of this provision and the\nconflict of interest laws of titles 5 and 18. Furthermore, although the 2002 Opinion\nreached its conclusion on the basis of the express statutory definition of \xe2\x80\x9cofficer\xe2\x80\x9d\nin title 5 and the longstanding interpretation that title 18 should be given the same\nmeaning, we noted that our interpretation \xe2\x80\x9cenable[d] an appointee to wind up his\nprivate affairs in an orderly manner (presumably in consultation with the Administration) and therefore [could] be critical to recruiting qualified appointees in the\nfirst place.\xe2\x80\x9d 26 Op. O.L.C. at 37. The issuance of a certificate of divestiture upon\nthe President\xe2\x80\x99s signing of the commission, but before the officer\xe2\x80\x99s entering on his\nduties, serves the same ends. 6\nB.\nIn keeping with the longstanding interpretation of the Treasury Department, we\nbelieve that, for purposes of 31 U.S.C. \xc2\xa7 329, Mr. Paulson will not become \xe2\x80\x9c[t]he\nSecretary of the Treasury\xe2\x80\x9d until he takes the oath of office or enters on the duties\nof the office. This understanding of the meaning of \xe2\x80\x9c[t]he Secretary of the\nTreasury\xe2\x80\x9d accords with the purposes of 31 U.S.C. \xc2\xa7 329. The provision, in\nsubstantially the same form, was enacted in 1789 as part of the statute creating the\nTreasury Department. Act of Sept. 2, 1789, ch. 12, \xc2\xa7 8, 1 Stat. 65, 67 (1789). 7 It\nwas intended to prevent Treasury officials from \xe2\x80\x9cspeculating in the public funds.\xe2\x80\x9d\nSee 1 Annals of Cong. 611 (1789) (statement of the sponsor, Rep. Aedanus\nBurke); see also Treasurer of the United States\xe2\x80\x94Philippine Land Purchase Bonds,\n6\nWe recognize that some agencies of the government do not insist that incoming officials achieve\nimmediate compliance with provisions that forbid them from holding or trading in particular kinds of\nproperty. On the other hand, the Treasury Department has consistently taken the view, both under 31\nU.S.C. \xc2\xa7 329 and under the statute on the Comptroller and Deputy Comptroller of the Currency, 12\nU.S.C. \xc2\xa7 11 (2000), that these statutory bars apply immediately to incoming officials upon their taking\nthe oaths of office.\n7\nAs originally enacted, the provision stated that officials at the Treasury Department could not \xe2\x80\x9cbe\nconcerned in the purchase or disposal of any public securities of any State, or of the United States.\xe2\x80\x9d\n1 Stat. at 67. This language remained in the statute until 1982, when the current language was\nsubstituted \xe2\x80\x9cto eliminate unnecessary words and for consistency in the revised title\xe2\x80\x9d 31. 31 U.S.C.\n\xc2\xa7 329 note. The 1982 amendment was \xe2\x80\x9cnot [to] be construed as making a substantive change in the\nlaw[] replaced.\xe2\x80\x9d Pub. L. No. 97-258, \xc2\xa7 4(a), 96 Stat. 884, 1067 (1982).\n\n90\n\n\x0cDivestiture of Stock and Purchase of Bonds by Incoming Secretary of the Treasury\n\n25 Op. Att\xe2\x80\x99y Gen. 98, 99 (1903) (\xe2\x80\x9cThe obvious purpose of [the] law, as shown\nthroughout the section, is to prohibit personal interest in such bond issues and\ncertain other affairs and business, and private emolument or gain in the transaction\nof any business in the Treasury Department.\xe2\x80\x9d). Perhaps one motive for the\nprovision was a concern that officials in the Treasury would buy state bonds\nwhose value would be increased if the United States (as it later did) assumed the\ndebts incurred by the states in the Revolutionary War. Ideas about assumption\nwere circulating even before the creation of the Treasury Department, see Stanley\nElkins & Eric McKitrick, The Age of Federalism 112\xe2\x80\x9313, 117\xe2\x80\x9321 (1993); Ron\nChernow, Alexander Hamilton 225 (2004); and the scope of the prohibition, which\nreaches trading in bonds but not the mere holding of them, suggests a focus on the\nuse of inside information. See also William Maclay, The Journal of William\nMaclay, United States Senator from Pennsylvania 1789\xe2\x80\x931791, at 173\xe2\x80\x9374 (Frederick Ungar Publishing 1965) (1890) (protesting against \xe2\x80\x9ca system of speculation\nfor . . . engrossing certificates\xe2\x80\x9d of public debt). In any event, if an incoming\nTreasury Secretary completes his transactions in government bonds before he\ntakes the oath or enters on the duties of his office, he cannot \xe2\x80\x9cspeculat[e] in the\npublic funds.\xe2\x80\x9d He can have no opportunity to take any official action as Secretary,\nor use any nonpublic information, to gain any advantage in the trade. 8\nIII.\nIt follows, therefore, that if the Director of OGE issues a certificate of divestiture upon the President\xe2\x80\x99s signing of Mr. Paulson\xe2\x80\x99s commission, Mr. Paulson will\nbe able to sell his Goldman Sachs stock and buy government bonds pursuant to\nthat certificate, provided he completes these transactions before he takes the oath\nof office or enters on his duties as Secretary of the Treasury.\nSTEVEN G. BRADBURY\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n8\nAn OGE regulation, which addresses the use of a certificate of divestiture, includes, as an example, the following:\n\nThe Secretary of Treasury sells certain stock after receiving a Certificate of Divestiture and is considering reinvesting the proceeds from the sale into U.S. Treasury securities. However, because the Secretary of Treasury is prohibited by 31 U.S.C. 329\nfrom being involved in buying obligations of the United States Government, the Secretary cannot reinvest the proceeds in such securities. However, she may invest the\nproceeds in a diversified mutual fund.\n5 C.F.R. \xc2\xa7 2634.1006(a), ex. 2 (2006) (citation omitted). By its terms, this example covers \xe2\x80\x9c[t]he\nSecretary of Treasury\xe2\x80\x9d but does not specify when an incoming official assumes that office.\n\n91\n\n\x0c'


b'Application of the Emoluments Clause to a Member\nof the FBI Director\xe2\x80\x99s Advisory Board\nA member of the FBI Director\xe2\x80\x99s Advisory Board does not hold an \xe2\x80\x9cOffice of Profit or Trust\xe2\x80\x9d under the\nEmoluments Clause of the Constitution.\n\nJune 15, 2007\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nFEDERAL BUREAU OF INVESTIGATION\nYou have asked whether a member of the Federal Bureau of Investigation\n(\xe2\x80\x9cFBI\xe2\x80\x9d) Director\xe2\x80\x99s Advisory Board (the \xe2\x80\x9cBoard\xe2\x80\x9d) holds an \xe2\x80\x9cOffice of Profit or\nTrust\xe2\x80\x9d under the Emoluments Clause of the Constitution. See U.S. Const. art. I,\n\xc2\xa7 9, cl. 8. We conclude that he does not.\nI.\nThe Board is charged with advising the Director of the FBI (\xe2\x80\x9cDirector\xe2\x80\x9d) on how\nthe FBI can more effectively exploit and apply science and technology to improve\nits operations, particularly its priorities of preventing terrorist attacks, countering\nforeign intelligence operations, combating cyber-based attacks, and strengthening\nthe FBI\xe2\x80\x99s collaboration with other federal law enforcement agencies. See FBI\nPress Release, FBI Director Renames and Announces Additions to Advisory Board\n(Oct. 6, 2005) (available at http://www.fbi.gov/news/pressrel/press-releases/fbidirector-renames-and-announces-additions-to-advisory-board, last visited Aug. 11,\n2014); see also Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7,\n\xc2\xa7 109, 117 Stat. 11, 67 (\xe2\x80\x9c[The Board] shall not be considered to be a Federal\nadvisory committee for purposes of the Federal Advisory Committee Act.\xe2\x80\x9d).\nBoard members serve, without terms, at the pleasure of the Director. The Board is\nscheduled to meet four times per year, unless the Director calls additional ad hoc\nmeetings. Although Board members are entitled to travel reimbursements and are\nclassified as special government employees, they receive no other compensation.\nSee 18 U.S.C. \xc2\xa7 202(a) (2000).\nThe sole role of the Board is to advise the Director, who is free to adopt, modify, or ignore its recommendations. Board members have no decisional or enforcement authority, and they exercise no supervisory responsibilities over other\npersons or employees as a result of their positions on the Board. Board members\ncannot bind the United States or direct the expenditure of appropriated or nonappropriated funds. In addition, Board members do not represent or act on behalf\nof the Director or the FBI in any particular matter. Board members hold Top\nSecret security clearances and may receive access to classified information\npursuant to their service on the Board, although they do not possess any authority\n\n154\n\n\x0cApplication of the Emoluments Clause to a Member of the FBI Director\xe2\x80\x99s Advisory Board\n\nto access, remove, disseminate, declassify, publish, modify, change, manipulate,\noriginate, or otherwise regulate or oversee the government\xe2\x80\x99s handling of classified\ninformation. Members of the Board sign nondisclosure agreements in which they\nagree not to disclose classified information they receive.\nYou have indicated that several Board members wish to travel overseas at the\ninvitation of foreign governments in connection with their non-FBI interests and\nwish to be reimbursed by those governments for their travel expenses. Travel\nreimbursements by foreign governments may constitute emoluments under the\nEmoluments Clause. See, e.g., Memorandum for John G. Gaine, General Counsel,\nCommodity Futures Trading Commission, from Leon Ulman, Deputy Assistant\nAttorney General, Office of Legal Counsel, Re: Expense Reimbursement in\nConnection with Chairman Stone\xe2\x80\x99s Trip to Indonesia at 2 n.2 (Aug. 11, 1980).1\nThe question before us is whether membership on the Board is an \xe2\x80\x9cOffice of Profit\nor Trust under [the United States]\xe2\x80\x9d within the meaning of the Emoluments Clause.\nWe conclude that it is not.\nII.\nThe Emoluments Clause provides, in relevant part, that \xe2\x80\x9cno Person holding any\nOffice of Profit or Trust under [the United States], shall, without the Consent of\nthe Congress, accept of any present, Emolument, Office, or Title, of any kind\nwhatever, from any King, Prince, or foreign State.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 9, cl. 8\n(emphasis added). \xe2\x80\x9c[I]n order to qualify as an \xe2\x80\x98Office of Profit or Trust under [the\nUnited States],\xe2\x80\x99 a position must, first and foremost, be an \xe2\x80\x98Office under the United\nStates.\xe2\x80\x99\xe2\x80\x9d Application of the Emoluments Clause to a Member of the President\xe2\x80\x99s\nCouncil on Bioethics, 29 Op. O.L.C. 55, 56 (2005) (\xe2\x80\x9c2005 Opinion\xe2\x80\x9d) (second\nalteration in original). In the 2005 Opinion, we concluded that a member of the\nPresident\xe2\x80\x99s Council on Bioethics, an advisory board, did not hold an \xe2\x80\x9cOffice under\nthe United States\xe2\x80\x9d and therefore was not subject to the Emoluments Clause. As we\nstated there:\n\n1\nCongress has already granted its consent under the Emoluments Clause for officials to receive\nreimbursement from foreign governments for certain foreign travel expenses. The Foreign Gifts and\nDecorations Act, 5 U.S.C. \xc2\xa7 7342 (2000), allows employees, with the approval of their agencies, to receive\npayment of appropriate travel expenses for travel taking place entirely outside the United States. Id.\n\xc2\xa7 7342(c)(1)(B)(ii). But that statute does not address what is often the most significant single expense\nincurred in foreign travel, the cost of the flight to and from the United States. We assume, for purposes of\nthis opinion, that the travel reimbursement received by Board members constitutes compensation for\nservices, and therefore is not prohibited under section 7342(b). See, e.g., Application of the Emoluments\nClause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 157 (1982) (\xe2\x80\x9cIt\nseems clear that [the Foreign Gifts and Decorations Act] only addresses itself to gratuities, rather than\ncompensation for services actually performed\xe2\x80\x9d).\n\n155\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nThe text of the Emoluments Clause suggests that an \xe2\x80\x9cOffice of Profit\nor Trust under [the United States]\xe2\x80\x9d must be an \xe2\x80\x9cOffice under the\nUnited States.\xe2\x80\x9d . . . [T]o the extent that the phrase \xe2\x80\x9cof Profit or Trust\xe2\x80\x9d\nis relevant, it may serve to narrow an \xe2\x80\x9cOffice . . . under [the United\nStates]\xe2\x80\x9d to those that are \xe2\x80\x9cof Profit or Trust,\xe2\x80\x9d or an \xe2\x80\x9cOffice of Profit\nor Trust\xe2\x80\x9d may be synonymous with an \xe2\x80\x9cOffice . . . under [the United\nStates],\xe2\x80\x9d but it is clear that the words \xe2\x80\x9cof Profit or Trust\xe2\x80\x9d do not expand coverage of the Emoluments Clause beyond what would otherwise qualify as an \xe2\x80\x9cOffice . . . under [the United States].\xe2\x80\x9d\nId. at 56\xe2\x80\x9357 (first ellipsis and first and second brackets added). The threshold\nquestion, therefore, in determining whether a member of the Board holds an\n\xe2\x80\x9cOffice of Profit or Trust under [the United States]\xe2\x80\x9d is whether a position on the\nBoard is an \xe2\x80\x9cOffice under the United States.\xe2\x80\x9d\nIn the 2005 Opinion, we concluded that a purely advisory position is not an\n\xe2\x80\x9cOffice under the United States.\xe2\x80\x9d Our analysis emphasized that persons holding\nadvisory positions of the sort at issue there did not exercise governmental authority. Id. at 63\xe2\x80\x9364. After reviewing two centuries of caselaw, authoritative commentaries, and numerous opinions of this Office, we observed that \xe2\x80\x9c[i]nnumerable . . .\nauthorities . . . make clear that an indispensable element of a public \xe2\x80\x98office\xe2\x80\x99 is the\nexercise of some portion of delegated sovereign authority.\xe2\x80\x9d Id. at 67. See generally\nOfficers of the United States Within the Meaning of the Appointments Clause, 31\nOp. O.L.C. 73, 87 (2007) (\xe2\x80\x9cAppointments Clause\xe2\x80\x9d) (\xe2\x80\x9cAs a general matter, . . . one\ncould define delegated sovereign authority as power lawfully conferred by the\nGovernment to bind third parties, or the Government itself, for the public benefit. . . . [S]uch authority primarily involves the authority to administer, execute, or\ninterpret the law.\xe2\x80\x9d). We therefore concluded: \xe2\x80\x9cTo be an \xe2\x80\x98office,\xe2\x80\x99 a position must at\nleast involve some exercise of governmental authority, and an advisory position\ndoes not.\xe2\x80\x9d 2005 Opinion, 29 Op. O.L.C. at 64; id. at 71 (\xe2\x80\x9cAs the Supreme Court\nmade clear in Buckley v. Valeo, 424 U.S. 1 (1976), . . . an \xe2\x80\x98officer of the United\nStates\xe2\x80\x99 exercises \xe2\x80\x98significant authority pursuant to the laws of the United States,\xe2\x80\x99\nid. at 126 (emphasis added).\xe2\x80\x9d); accord Appointments Clause, 31 Op. O.L.C. at 79,\n86, 99\xe2\x80\x93100.\nThe only relevant distinction between the advisory position at issue in the 2005\nOpinion and membership on the Board is that a Board member may receive access\nto classified information in connection with his official duties. 2 To conclude that\n2\nWhile the members of the President\xe2\x80\x99s Committee on Bioethics\xe2\x80\x94the subject of the 2005 Opinion\xe2\x80\x94received modest compensation for their services, see 2005 Opinion, 29 Op. O.L.C. at 55, the\nmembers of the Board are not compensated. We have previously concluded, however, that while \xe2\x80\x9can\nemolument is . . . a common characteristic of an office,\xe2\x80\x9d it \xe2\x80\x9cis not essential.\xe2\x80\x9d Appointments Clause, 31\nOp. O.L.C. at 119.\n\n156\n\n\x0cApplication of the Emoluments Clause to a Member of the FBI Director\xe2\x80\x99s Advisory Board\n\nmembership on the Board is an \xe2\x80\x9cOffice of Profit or Trust\xe2\x80\x9d within the meaning of\nthe Emoluments Clause, therefore, we would necessarily have to conclude that, by\nreceiving access to classified information, Board members have received a\ndelegation by legal authority of a portion of the sovereign power of the federal\ngovernment.\nThe mere provision of access to classified information, however, is not such a\ndelegation. Board members are given access to classified information solely to\nhelp them perform their advisory function; they have no discretionary authority to\naccess, remove, disseminate, declassify, publish, modify, change, manipulate, or\noriginate classified information. They do not have supervisory or oversight\nauthority for the government\xe2\x80\x99s handling or regulation of classified information. Cf.\n2005 Opinion, 29 Op. O.L.C. at 72\xe2\x80\x9373 (discussing similar authority). Board\nmembers who receive such information do not thereby acquire \xe2\x80\x9cthe right or power\nto make any . . . law, nor can they interpret or enforce any existing law,\xe2\x80\x9d 1 Asher\nC. Hinds, Hinds\xe2\x80\x99 Precedents of the House of Representatives of the United States\n604, 608 (1907), nor can they \xe2\x80\x9chear and determine judicially questions submitted\n[to them],\xe2\x80\x9d id. at 607. Nor does their receipt of such information empower Board\nmembers to \xe2\x80\x9cbind the Government or do any act affecting the rights of a single\nindividual citizen.\xe2\x80\x9d Id. at 610; accord Opinion of the Justices, 3 Greenl. (Me.) 481,\n482 (1822) (\xe2\x80\x9cThe power thus delegated and possessed [by an officer], may be a\nportion belonging sometimes to one of the three great departments, and sometimes\nto another; still it is a legal power, which may be rightfully exercised, and in its\neffects it will bind the rights of others . . . .\xe2\x80\x9d) (emphasis added). Rather, receipt of\nclassified information only gives rise to a negative duty not to disclose that\ninformation to persons who may not lawfully have access to it. We do not\nunderstand the duty to safeguard classified information to constitute a portion of\nthe sovereign power of the federal government. That duty is broadly analogous to\nthe duty of any person entrusted with the due care of government property under\nhis control, which\xe2\x80\x94absent authority to alienate that property\xe2\x80\x94has not traditionally been considered to constitute sovereign authority sufficient to render a position\nan \xe2\x80\x9coffice.\xe2\x80\x9d See Appointments Clause, 31 Op. O.L.C. at 90 (collecting authorities).\nIn addition, the Board members\xe2\x80\x99 duty of nondisclosure originates not in the\nstatute creating the Board and establishing its duties, but in such authorities as\nconfidentiality agreements executed by the Board members, Exec. Order No.\n13292 (Mar. 25, 2003), 3 C.F.R. 196 (2003 Comp.), and generally applicable\nstatutes penalizing the unauthorized disclosure of classified information, see, e.g.,\n18 U.S.C. \xc2\xa7 793(d), (f) (2000); id. \xc2\xa7 798 (2000). See generally Freytag v. Comm\xe2\x80\x99r,\n501 U.S. 868, 881 (1991) (contrasting special trial judges, whose duties were\n\xe2\x80\x9cspecified by statute,\xe2\x80\x9d with special masters, who were hired \xe2\x80\x9con a temporary,\nepisodic basis, whose positions are not established by law, and whose duties and\nfunctions are not delineated in a statute\xe2\x80\x9d); id. at 901 (opinion of Scalia, J.)\n(agreeing with this analysis); Floyd R. Mechem, A Treatise on the Law of Public\n\n157\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nOffices and Officers \xc2\xa7 507, at 332 (1890) (\xe2\x80\x9cThe authority of a public officer in any\ngiven case consists of those powers which are expressly conferred upon him by the\nact appointing him, or which are expressly annexed to the office by the law\ncreating it or some other law referring to it, or which are attached to the office by\ncommon law as incidents to it.\xe2\x80\x9d). Although we do not consider that fact dispositive, see Appointments Clause, 31 Op. O.L.C. at 117\xe2\x80\x9318, it tends to confirm that\nBoard members\xe2\x80\x99 duty of nondisclosure is simply ancillary to their advisory duties,\nwhich, as noted above, are not sufficient to render the position an \xe2\x80\x9coffice\xe2\x80\x9d under\nthe Appointments Clause, U.S. Const. art. II, \xc2\xa7 2, cl. 2. It also tends to confirm that\nthe Board members\xe2\x80\x99 duty of nondisclosure is indistinguishable from the general\nduty that any employee or even contractor with access to such information would\nhave, rather than constituting some special authority associated with service on the\nBoard.\nAccordingly, we conclude that a member of the Board does not hold an \xe2\x80\x9cOffice\nunder the United States\xe2\x80\x9d by virtue of that position, and likewise does not hold an\n\xe2\x80\x9cOffice of Profit or Trust [under the United States]\xe2\x80\x9d within the meaning of the\nEmoluments Clause. See 2005 Opinion, 29 Op. O.L.C. at 71 (\xe2\x80\x9cA position that\ncarried with it no governmental authority (significant or otherwise) would not be\nan office for purposes of the Appointments Clause, and therefore . . . would not be\nan office under the Emoluments Clause . . . .\xe2\x80\x9d).\nWe acknowledge that the 2005 Opinion, in concluding that members of the\nPresident\xe2\x80\x99s Council on Bioethics were not \xe2\x80\x9cofficers\xe2\x80\x9d for purposes of the Emoluments Clause, noted, among other factors, that members did not have access to\nclassified information, 29 Op. O.L.C. at 55, and cited a handful of opinions that\n\xe2\x80\x9csuggested that individuals with access to sensitive, national security-related\ninformation held \xe2\x80\x98Office[s] of Profit or Trust\xe2\x80\x99 under the Emoluments Clause,\nwithout further analyzing the extent of governmental authority exercised by these\nfederal employees.\xe2\x80\x9d Id. at 72; see also id. at 72 n.10 (collecting citations). In light\nof those opinions, we wrote, \xe2\x80\x9cit is at least arguable that the authority to control and\nsafeguard classified information does amount to the exercise of governmental\nauthority sufficient to render employment with the federal government a public\n\xe2\x80\x98office.\xe2\x80\x99\xe2\x80\x9d Id. at 72.\nOne of those opinions involved a part-time staff consultant to the Nuclear\nRegulatory Commission. See Application of Emoluments Clause to Part-Time\nConsultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96 (1986)\n(\xe2\x80\x9c1986 Opinion\xe2\x80\x9d). 3 In the 1986 Opinion, we concluded that such a staff consultant\n3\nThe 2005 Opinion also cites a Letter for James A. Fitzgerald, Assistant General Counsel, Nuclear\nRegulatory Commission, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel\n(June 3, 1986). That is not, however, a separate opinion, but simply the unpublished version of the\n1986 Opinion.\n\n158\n\n\x0cApplication of the Emoluments Clause to a Member of the FBI Director\xe2\x80\x99s Advisory Board\n\ncould not, consistent with the Emoluments Clause, accept employment with a\nprivate domestic corporation to perform work on a contract with a foreign\ngovernment. Id. at 96. In reaching that conclusion, we appeared to place heavy\nweight on the fact that the consultant might have access to sensitive or classified\ninformation:\n[The consultant] is highly valued for his abilities and . . . in the\ncourse of his employment, he may develop or have access to sensitive and important, perhaps classified information. Even without\nknowing more specifically the duties of his employment, these factors are a sufficient indication that the United States government has\nplaced great trust in [him] and requires and expects his undivided\nloyalty. Therefore, we believe the Emoluments Clause applies to\nhim.\nId. at 99. In the 1986 Opinion, we did not consider whether access to classified\ninformation constitutes a delegation by legal authority of a portion of the sovereign power of the federal government. While we noted that \xe2\x80\x9c[p]rior opinions of\nthis Office have assumed . . . that the persons covered by the Emoluments Clause\nwere \xe2\x80\x98officers of the United States,\xe2\x80\x9d id. at 98, we interpreted the Emoluments\nClause as a \xe2\x80\x9cprophylactic provision\xe2\x80\x9d whose reach was not limited to \xe2\x80\x9cofficers of\nthe United States.\xe2\x80\x9d Id. Instead, we concluded that the relevant inquiry under the\nEmoluments Clause was \xe2\x80\x9cwhether [the employee\xe2\x80\x99s] part-time position at the NRC\ncould be characterized as one of profit or trust under the United States\xe2\x80\x94a position\nrequiring undivided loyalty to the United States government.\xe2\x80\x9d Id. As we have\nsince determined, however, a person who does not hold an office under the United\nStates is not subject to the Emoluments Clause. See 2005 Opinion, 29 Op. O.L.C.\nat 56 (\xe2\x80\x9c[I]n order to qualify as an \xe2\x80\x98Office of Profit or Trust under [the United\nStates],\xe2\x80\x99 a position must, first and foremost, be an \xe2\x80\x98Office under the United\nStates.\xe2\x80\x99\xe2\x80\x9d) (second alteration in original).\nIII.\nA sentence in our 2005 Opinion identifies United States v. Hartwell, 73 U.S.\n(6 Wall.) 385 (1867), as supporting the proposition that \xe2\x80\x9cthe authority to control\nand safeguard classified information does amount to the exercise of governmental\nauthority sufficient to render employment with the federal government a public\n\xe2\x80\x98office.\xe2\x80\x99\xe2\x80\x9d 2005 Opinion, 29 Op. O.L.C. at 72. But, on a close reading of Hartwell,\nwe find it consistent with our analysis above. In Hartwell, the Court held that a\nclerk in the office of an assistant treasurer of the United States was an \xe2\x80\x9cofficer of\nthe United States\xe2\x80\x9d for purposes of a federal embezzlement statute. 73 U.S. at 391\xe2\x80\x93\n93. In reaching that conclusion, the Court noted a number of factors, including that\nHartwell was \xe2\x80\x9ccharged with the safe-keeping of the public moneys of the United\n\n159\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nStates.\xe2\x80\x9d Id. at 392. By analogy to Hartwell, \xe2\x80\x9cit could be argued that a federal\ngovernment employee charged with safeguarding sensitive national securityrelated information would likewise be a public officer charged with the exercise of\nsome governmental authority.\xe2\x80\x9d 2005 Opinion, 29 Op. O.L.C. at 72.\nWe do not read Hartwell so broadly. The statute under which Hartwell was\nindicted applied to \xe2\x80\x9call officers and other persons charged by this act or any other\nact with the safekeeping, transfer and disbursement of the public moneys.\xe2\x80\x9d 73 U.S.\nat 387 (emphasis and internal quotation marks omitted). The Court determined that\nHartwell was both an \xe2\x80\x9cofficer\xe2\x80\x9d and a \xe2\x80\x9cperson charged with the safe-keeping of the\npublic money within the meaning of the act.\xe2\x80\x9d Id. at 393 (emphasis and internal\nquotation marks omitted); see also id. (\xe2\x80\x9cWas the defendant an officer or person\n\xe2\x80\x98charged with the safe-keeping of the public money\xe2\x80\x99 within the meaning of the\nact? We think he was both.\xe2\x80\x9d). The fact that Hartwell was responsible for \xe2\x80\x9cthe safekeeping of the public moneys of the United States,\xe2\x80\x9d id. at 392, was relevant, not\nbecause it made Hartwell an officer, but because it made him an \xe2\x80\x9cofficer[] [or]\nother person[] charged by this act or any other act with the safe-keeping, transfer\nand disbursement of the public moneys.\xe2\x80\x9d Id. at 387 (emphasis and internal\nquotation marks omitted). He therefore was liable for criminal prosecution under\nthe act irrespective of the fact that he was an officer. See id. at 390\xe2\x80\x9391.\nThat Hartwell was charged with the safekeeping of the public moneys of the\nUnited States does not appear to have been relevant to the Court\xe2\x80\x99s analysis of\nwhether he was also an officer. Rather, Hartwell\xe2\x80\x99s status as an officer appears to\nhave been based on the fact that his\nemployment . . . was in the public service of the United States. He\nwas appointed pursuant to law, and his compensation was fixed by\nlaw. Vacating the office of his superior would not have affected the\ntenure of his place. His duties were continuing and permanent, not\noccasional or temporary. They were to be such as his superior in office should prescribe.\nId. at 393. Hartwell therefore is not dispositive of whether being generally\nentrusted with due care of public funds is itself a delegation by legal authority of a\nportion of the sovereign power of the federal government, such that the recipient\nof such authority holds an \xe2\x80\x9cOffice under the United States.\xe2\x80\x9d A fortiori, Hartwell\ndoes not determine whether receiving access to classified information constitutes\nsuch a delegation.\nIV.\nBecause mere access to, or receipt of, classified information is not a delegation\nby legal authority of a portion of the sovereign power of the United States, a\nmember of the Board does not hold an \xe2\x80\x9cOffice under the United States\xe2\x80\x9d by virtue\n\n160\n\n\x0cApplication of the Emoluments Clause to a Member of the FBI Director\xe2\x80\x99s Advisory Board\n\nof that position and therefore does not hold an \xe2\x80\x9cOffice of Profit or Trust [under the\nUnited States]\xe2\x80\x9d within the meaning of the Emoluments Clause. See 2005 Opinion,\n29 Op. O.L.C. at 72. 4 To the extent the 1986 Opinion reached a contrary conclusion, the 2005 Opinion has substantially undermined the basis for that conclusion,\nand the 1986 Opinion is no longer authoritative. 5\nJOHN P. ELWOOD\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n4\nThe FBI may, of course, take foreign ties into account in determining the propriety of a person\xe2\x80\x99s\nservice on the Board and the appropriateness of granting security clearances.\n5\nThe 2005 Opinion referred to two other opinions in which \xe2\x80\x9cwe suggested that individuals with\naccess to sensitive, national security-related information held \xe2\x80\x98Office[s] of Profit or Trust\xe2\x80\x99 under the\nEmoluments Clause.\xe2\x80\x9d 2005 Opinion, 29 Op. O.L.C. at 72; see id. at 72 n.10 (citing Application of the\nEmoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156\n(1982), and Memorandum for James H. Thessin, Assistant Legal Adviser for Management, Department\nof State, from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re:\nApplication of the Emoluments Clause to a Civilian Aide to the Secretary of the Army (Aug. 29, 1988)).\nIn both of those opinions, however, the individuals in question were regular full-time employees of the\nUnited States government, and those opinions therefore do not directly bear on the part-time advisory\npositions at issue here.\n\n161\n\n\x0c'


b'Government Printing Office Involvement in Executive Branch\nPrinting\nThe Office o f Legal Counsel continues to adhere to the analysis and conclusions in its opinion dated\nMay 31, 1996, regarding Government Printing Office involvement in executive branch printing.\nJu ly 23, 1996\nL e t t e r O p in io n f o r t h e G e n e r a l C o u n s e l\nG o v e r n m e n t P r in t in g O f f ic e\n\nThis letter responds to your request for reconsideration o f the opinion issued\nby this office on May 31, 1996 regarding Government Printing Office (\xe2\x80\x9c GPO\xe2\x80\x9d )\ninvolvement in executive branch printing. See Involvement o f the Government\nPrinting Office in Executive Branch Printing and Duplicating, 20 Op. O.L.C. 214\n(1996) (the \xe2\x80\x9c May 31, 1996 memorandum\xe2\x80\x9d ). In that opinion, we concluded that,\nto the extent 44 U.S.C. \xc2\xa7501 & note require all executive branch printing and\nduplicating to be procured by or through the GPO, the statute violates constitu\xc2\xad\ntional principles of separation of powers. We further found that the provision in\nsubsection (2) of 44 U.S.C. \xc2\xa7501 note authorizing the Public Printer to certify\nexceptions to the general rule of printing by or through the GPO is unconstitu\xc2\xad\ntional. In preparing the memorandum, we gave the issues our complete consider\xc2\xad\nation. We continue to adhere to the analysis and conclusions set forth in that\nmemorandum.\nSpecifically, you contend the May 31, 1996 memorandum represents an unwar\xc2\xad\nranted departure from the principle previously embraced by this office, as set forth\nin a footnote of an opinion issued on September 13, 1993. See General Services\nAdm inistration Printing Operations, 17 Op. O.L.C. 54 (1993) (the \xe2\x80\x9c September\n13, 1993 memorandum\xe2\x80\x9d ). W e note, as an initial matter, that the September 13,\n1993 memorandum focused on whether the Joint Committee on Printing (\xe2\x80\x9c JCP\xe2\x80\x9d )\nhas the authority to restrict printing functions of the General Services Administra\xc2\xad\ntion (\xe2\x80\x9c G SA \xe2\x80\x9d ), and whether then-recent legislation had any effect on GSA\xe2\x80\x99s au\xc2\xad\nthority to engage in printing. The issue central to the May 31, 1996 memo\xc2\xad\nrandum \xe2\x80\x94 the constitutionality of Congress\xe2\x80\x99s mandate that the executive branch\nuse the GPO for all its printing and duplicating w ork\xe2\x80\x94 was addressed only in\npassing in a footnote of the September 13, 1993 memorandum.\nUnder separation of powers doctrine, Congress may not vest executive functions\nin a person or entity subject to congressional control. See, e.g.. Metropolitan\nWashington A irports Auth. v. Citizens fo r the Abatement o f Aircraft Noise, Inc.,\n501 U.S. 252 (1991); Bowsher v. Synar, 478 U.S. 714 (1986). This principle was\n\nfurther clarified subsequent to issuance of the September 13, 1993 memorandum\nin F ederal Election Comm\xe2\x80\x99n v. NRA Political Victory Fund, 6 F.3d 821, 827 (D.C.\nCir. 1993) (striking down the ex officio, non-voting participation by congressional\n282\n\n\x0cGovernment Printing Office Involvement in Executive Branch Printing\n\nagents in the Federal Election Commission on grounds that the \xe2\x80\x9c mere presence\nof agents of Congress on an entity with executive powers offends the Constitu\xc2\xad\ntion\xe2\x80\x9d ), cert, dismissed, 513 U.S. 88 (1994). As we concluded in the May 31,\n1996 memorandum, the GPO is subject to congressional control through the JCP.\nYour letter identifies as constitutionally significant (1) the fact that the Public\nPrinter is appointed, and subject to removal at will, by the President; and (2)\nthe absence of JCP veto authority over GPO actions. The President\xe2\x80\x99s appointment\nand removal authority demonstrates only that the executive branch also exercises\na degree of control over the GPO and Public Printer. This fact does not ameliorate\nthe constitutional problem that occurs as a result of the congressional control that\nis exerted over the same entity and official. Similarly, the absence o f JCP veto\nauthority in no way diminishes the control Congress exercises through other statu\xc2\xad\ntory mechanisms.\nYou further contend that, because the GPO cannot refuse executive branch print\xc2\xad\ning orders nor modify the contents of any printed material, congressional control\nover its functions does not violate separation of powers principles. As set forth\nin detail in the May 31, 1996 memorandum, we disagree that the G PO \xe2\x80\x99s functions\nare so limited in nature that congressional control over such functions holds no\nconstitutional significance. Indeed, as we noted in the May 31, 1996 memo\xc2\xad\nrandum, we doubt that the Constitution permits Congress to control functions out\xc2\xad\nside the legislative sphere even where such aggrandizement is de minimis. But\nwe need not resolve that issue at this time because the GPO functions cannot\nbe characterized as merely ministerial. The GPO controls the timing and produc\xc2\xad\ntion of all printing work for the executive branch. See 44 U.S.C. \xc2\xa7501 & note.\nThe Public Printer also determines \xe2\x80\x9c the form and style in which the printing or\nbinding ordered by a department is executed, and the material and the size of\ntype used.\xe2\x80\x9d 44 U.S.C. \xc2\xa7 1105. Thus, the GPO\xe2\x80\x99s functions are essential to the dis\xc2\xad\ncharge of all executive functions that require printing work.\nAccordingly, to the extent footnote 2 of the September 13, 1993 memorandum\nis at variance with current jurisprudence and the analysis and conclusions set forth\nin the May 31, 1996 memorandum, it no longer represents the views o f this office.\nCHRISTOPHER SCHROEDER\nActing Assistant A ttorney General\nOffice o f Legal Counsel\n\n283\n\n\x0c'