b'Congressional Testimony of an Assistant United States\nAttorney on Behalf of the National Association of\nAssistant United States Attorneys\n\nT h e D e p a rtm e n t o f Ju stic e c o rre c tly tak es th e p o s itio n th a t it m a y no t p ro h ib it an A ss is ta n t U n ite d\nS ta te s A tto rn e y fro m te stify in g b e fo re C o n g re ss in his o r h e r p e rso n al c a p a c ity o n b e h a lf o f the N a \xc2\xad\ntio n al A ss o c ia tio n o f A ssista n t U n ited S ta te s A tto rn e y s.\n\nT h e D e p a rtm e n t\xe2\x80\x99s ru le s re g u la tin g su ch te stim o n y are c o n sis te n t w ith the F irst A m e n d m e n t\n\nT hose\n\nrules re q u ire th a t th e A U S A m a k e it c le a r th a t he o r sh e is n o t s p e a k in g for the D e p a rtm e n t, a v o id\nusin g o r p e rm ittin g the use o f h is o r h e r o ffic ia l title o r p o sitio n in c o n n e c tio n w ith the te stim o n y\n(e x c ep t as o n e o f sev eral b io g ra p h ic a l d e ta ils), a n d c o m p ly w ith ru le s o n the p ro te c tio n o f c o n f i\xc2\xad\nd e n tia l in fo rm a tio n\n\nN ovem ber 7, 1994\n\nM e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l\n\nYou have asked for our opinion on certain issues pertaining to testimony by an\nAssistant United States Attorney (\xe2\x80\x9cAUSA\xe2\x80\x9d) on legislation in which the Department\nhas an interest, where the AUSA is not authorized to speak on behalf of the D e\xc2\xad\npartment but rather is appearing in a personal capacity on behalf of the National\nAssociation of Assistant United States Attorneys (\xe2\x80\x9cNAAUSA\xe2\x80\x9d). W e conclude that\nthe D epartm ent\xe2\x80\x99s position, that it may not prohibit an AUSA from testifying before\nCongress in his or her personal capacity, is correct. W e also conclude that the\nrules that regulate such testimony are consistent with the First Amendment. Those\nrules require that the AUSA make it clear that he or she is not speaking for the D e\xc2\xad\npartment, avoid using or permitting the use of his or her official title or position in\nconnection with the testimony (except as one of several biographical details), and\ncomply with rules on the protection of confidential information.\nI. Protection A fforded by the F irst Am endm ent\nThe Supreme C ourt\xe2\x80\x99s approach for reviewing government restrictions on the\nexercise of First Amendment rights by their employees involves a balancing of\nemployee and governmental interests. Because balancing tests by their nature turn\non the facts of specific situations, for purposes o f this memorandum we will ana\xc2\xad\nlyze hypothetical congressional testimony by an AUSA on behalf of NAAUSA that\nwould oppose a crime bill supported by the Department and recommend a different\nallocation of funds within the D epartm ent\xe2\x80\x99s appropriations bill than that requested\nby the Department.\n225\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\nAlthough the governm ent obviously cannot prevent private citizens from pre\xc2\xad\nsenting views on pending legislation, \xe2\x80\x9cthe governm ent\xe2\x80\x99s role as em p lo y er. . . gives\nit a freer hand in regulating the speech of its em ployees than it has in regulating the\nspeech of the public at large. . . . [T]he governm ent as employer indeed has far\nbroader pow ers than does the government as sovereign.\xe2\x80\x9d Waters v. Churchill, 511\nU.S. 661, 671 (1994) (O \xe2\x80\x99Connor, J., plurality opinion). As Justice O \xe2\x80\x99Connor has\nrecently explained,\nthe extra pow er the government has in this area comes from the na\xc2\xad\nture of the governm ent\xe2\x80\x99s m ission as em ployer. Government agen\xc2\xad\ncies are charged by law with doing particular tasks. Agencies hire\nem ployees to help do those tasks as effectively and efficiently as\npossible. W hen someone w ho is paid a salary so that she will con\xc2\xad\ntribute to an agency\xe2\x80\x99s effective operation begins to do or say things\nthat detract from the agency\xe2\x80\x99s effective operation, the government\nem ployer m ust have some pow er to restrain her.\nId. at 674-75.\n\nThe balancing test that the Supreme Court applies in reviewing\nregulation o f speech by government em ployees is well established:\nThere is no dispute . . . about when speech by a government em\xc2\xad\nployee is protected by the F irst Amendment: To be protected, the\nspeech m ust be on a matter o f public concern, and the em ployee\xe2\x80\x99s\ninterest in expressing herself on this m atter must not be outweighed\nby any injury the speech could cause to \xe2\x80\x98\xe2\x80\x9c the interest of the State, as\nan em ployer, in promoting the efficiency of the public services it\nperform s through its em ployees.\xe2\x80\x99\xe2\x80\x9d\n\nId. at 668 (quoting Connick v. M yers, 461 U.S. 138, 142 (1983); P ickering v.\nB o a rd o f E duc., 391 U.S. 563,568 (1968)).\'\n\nJustice O \xe2\x80\x99C onnor has noted that w hile \xe2\x80\x9ca private person is perfectly free to uninhibitedly and robustly criticize a state governor\xe2\x80\x99s legislative program, [the Court\nhas] never suggested that the Constitution bars the governor from firing a highranking deputy for doing the same thing.\xe2\x80\x9d W aters v. Churchill, 511 U.S. at 672.\nIn its starkest terms, the question presented by the hypothetical we are addressing\nis w hether this principle applies to an AUSA testifying about the crime bill on be-\n\n1\nIn a d o p tin g this b alan cin g lest that accom m odates b o th governm ental interests and em ployee speech\nrights, the C o u rt has \xe2\x80\x9c rejected Justice Holmes\xe2\x80\x9d approach to the free speech rights o f public em ployees, that\n\xe2\x80\x98[a po lic e m an ] m ay have a constitutional right to talk p olitics, but he has no constitutional right to be a p o \xc2\xad\nlicem an\nR a n kin v M c P h e rso n , 483 U S. 3 7 8 , 395 (1 9 8 7 ) (S calia, J , dissenting) (quoting M cA ulijje v.\nM a y o r o j N ew B ed jo rd , 155 M ass 216, 220, 29 N E. 517 (1 8 92)).\n\n226\n\n\x0cC ongressional Testim ony oj an A ssistant U nited States A ttorney\non B eh a lf o f the N ational A ssociation o f A ssistant U nited States A ttorneys\n\nhalf o f NAAUSA. A review of relevant Supreme Court decisions strongly suggests\nthat the Court would hold that it does not.\nBefore any balancing is undertaken, the court must be satisfied that the speech\nin question was on a matter of public concern. \xe2\x80\x9cWhen employee expression cannot\nbe fairly considered as relating to any matter of political, social, or other concern to\nthe community, government officials should enjoy wide latitude in managing their\noffices, without intrusive oversight by the judiciary in the name o f the First\nAmendment.\xe2\x80\x9d Connick v. M yers , 461 U.S. at 146. The Court held in Connick that\n\xe2\x80\x9cwhen a public employee speaks not as a citizen upon matters o f public concern,\nbut instead as an employee upon matters only of personal interest,\xe2\x80\x9d review of the\ngovernment em ployer\xe2\x80\x99s actions in a federal court is unwarranted in the absence of\n\xe2\x80\x9cthe most unusual circumstances.\xe2\x80\x9d Id. at 147.\nThis threshold \xe2\x80\x9cmatter of public concern\xe2\x80\x9d requirement is easily m et in the\nNAAUSA testimony hypothetical. Testimony before Congress about pending leg\xc2\xad\nislation is by its very nature a matter of public concern. The D epartm ent\xe2\x80\x99s appro\xc2\xad\npriations legislation, which sets forth the relative priority of the Departm ent\xe2\x80\x99s\nvarious missions, obviously is o f public concern, and testimony by Department\nprosecutors about a crime bill would appear to be of particularly high public con\xc2\xad\ncern, given the weight that can be given the expert views of federal prosecutors.\nThese considerations are significant when balancing the strength of the A U SA \xe2\x80\x99s\ninterest in giving the testimony against the Departm ent\xe2\x80\x99s interest in preventing its\nemployees from testifying in ways that are inconsistent with, and potentially under\xc2\xad\ncut, the Department\xe2\x80\x99s position on the legislation. Two Supreme Court decisions\nare particularly relevant to that balancing.\nIn Pickering , the seminal public employee speech case, the Court held that a\nboard of education\xe2\x80\x99s dismissal of a teacher for writing a letter to the editor of the\nlocal newspaper criticizing the board\xe2\x80\x99s communication to taxpayers related to sev\xc2\xad\neral bond issues and its allocation of resources between athletic and educational\nprograms violated the teacher\xe2\x80\x99s First Amendment rights. The first part of the\nC ourt\xe2\x80\x99s analysis rejected the board\xe2\x80\x99s argument that a government em ployee\xe2\x80\x99s duty\no f loyalty requires that he avoid public comments critical of the employer. The\nCourt found that the teacher\xe2\x80\x99s statements were \xe2\x80\x9cin no way directed towards any\nperson with whom [the teacher] would normally be in contact in the course of his\ndaily work as a teacher. Thus no question o f maintaining either discipline by im\xc2\xad\nmediate superiors or harmony among coworkers is presented here.\xe2\x80\x9d 391 U.S. at\n569-70. Nor were the teacher\xe2\x80\x99s relationships with the board or the school superin\xc2\xad\ntendent \xe2\x80\x9cthe kind of close working relationships for which it can persuasively be\nclaimed that personal loyalty and confidence are necessary to their proper func\xc2\xad\ntioning.\xe2\x80\x9d Id. at 570. This part of the C ourt\xe2\x80\x99s analysis in P ickering suggests that\nthe Department could not make employee loyalty a significant part of an argument\njustifying the suppression of the hypothetical NAAUSA testimony.\n\n227\n\n\x0cOpinions o f th e Office o f Legal C ounsel\n\nO f even greater significance for the NAAUSA hypothetical is the part of the\nC ourt\xe2\x80\x99s analysis in P ickerin g that focused on the public interest in the difference of\nopinion betw een the teacher and the board concerning the school system \xe2\x80\x99s budget,\nincluding specifically the disagreement over the allocation o f funds between ath\xc2\xad\nletics and academ ics. The Court opined that a school system \xe2\x80\x99s budget\nis a m atter o f legitimate public concern on which the judgm ent of\nthe school administration, including the School Board, cannot, in a\nsociety that leaves such questions to popular vote, be taken as con\xc2\xad\nclusive. On such a question free and open debate is vital to in\xc2\xad\nformed decision-m aking by the electorate. Teachers are, as a class,\nthe m em bers o f a community most likely to have informed and defi\xc2\xad\nnite opinions as to how funds allotted to the operation of the schools\nshould be spent. Accordingly, it is essential that they be able to\nspeak out freely on such questions without fear o f retaliatory dis\xc2\xad\nmissal.\nId. at 571-72. The C ourt concluded that the principle that \xe2\x80\x9cthe government as em\xc2\xad\nployer . . . has far broader powers than does the governm ent as sovereign\xe2\x80\x9d ( W aters,\n\n511 U.S. at 671) was inapplicable to the facts of the case: \xe2\x80\x9cwe conclude that the\ninterest of the school administration in limiting teachers\xe2\x80\x99 opportunities to contrib\xc2\xad\nute to public debate is not significantly greater than its interest in limiting a similar\ncontribution by any m em ber of the general public.\xe2\x80\x9d 391 U.S. at 573.\nThe C ourt\xe2\x80\x99s strong statement in P ickerin g on the important contribution teach\xc2\xad\ners can make to public debate on a school system \xe2\x80\x99s budget is directly pertinent to\nour consideration o f the hypothetical NAAUSA testimony. Just as teachers are\n\xe2\x80\x9cthe m em bers of a community most likely to have informed and definite opinions\nas to how funds allotted to the operation of the schools should be spent,\xe2\x80\x9d we expect\nthat the C ourt would conclude that the line prosecutors represented by NAAUSA\nhave such \xe2\x80\x9cinformed and definite opinions\xe2\x80\x9d on matters addressed in the crime bill\nand on \xe2\x80\x9chow funds allotted to the operation of the [Department] should be spent\xe2\x80\x9d\nthat they m ust be allow ed \xe2\x80\x9cto contribute to public debate.\xe2\x80\x9d\nThe view that the hypothetical NAAUSA testimony would be speech protected\nby the First A m endm ent is also supported by the Court\xe2\x80\x99s decision in P erry v.\nSinderm ann, 408 U.S. 593 (1972). Citing P ickering, the Court held in P erry that a\ncom plaint stated a First Amendment violation by alleging that a state college ter\xc2\xad\nminated the em ploym ent o f a professor (who was also president of a teachers\xe2\x80\x99 as\xc2\xad\nsociation) in retaliation for his legislative testimony and other public statements\ndisagreeing with the policies of the college administration. Id. at 598. It appears\nto us that the hypothetical testimony by an AUSA as an officer of an association of\nAUSAs presenting views in conflict with those expressed by the Department is on\n\n228\n\n\x0cC ongressional T estim ony o f an A ssistant U nited Stales A ttorney\non B e h a lf o f the N ational A ssociation o f A ssistant U nited States A ttorneys\n\nall fours with the facts of P erry , which involved testimony by a teacher as president\nof a teacher\xe2\x80\x99s association disagreeing with the em ployer\xe2\x80\x99s policies.\nNot only would it be difficult to distinguish the NAAUSA testimony from the\nspeech held protected by the First Amendment in P ickering and P erry, it is also\nunclear whether the Court would even consider the Departm ent\xe2\x80\x99s interest in pend\xc2\xad\ning crime and appropriations bills to constitute an interest that would qualify as a\n\xe2\x80\x9cgovernment as employer\xe2\x80\x9d interest under the C ourt\xe2\x80\x99s balancing test: that is, an\n\xe2\x80\x9cinterest o f the [Department], as an employer, in promoting the efficiency o f the\npublic services it performs through its em ployees.\xe2\x80\x9d Pickering, 391 U.S. at 568.\nSince the public service of the Department in this circumstance is influencing Con\xc2\xad\ngress\xe2\x80\x99s consideration of legislation, the Departm ent\xe2\x80\x99s interest as em ployer would\nappear to extend only to employees that participate in that service. Thus, the D e\xc2\xad\npartment may have the right to require employees of the Office o f Legislative Af\xc2\xad\nfairs or witnesses the Department chooses as its representatives to adhere to\nDepartment positions (just as it has the right to require AUSAs to adhere to D e\xc2\xad\npartment litigation positions when they appear in court on behalf o f the D epart\xc2\xad\nment), but it is questionable whether the Department has that right with respect to\nindividuals who do not perform functions in connection with the D epartm ent\xe2\x80\x99s\nlegislative activities.2\nIn sum, whether it is because the Court would invoke the Pickering rationale\nand find that the Department\xe2\x80\x99s interest \xe2\x80\x9c in limiting [AUSAs\xe2\x80\x99] opportunities to\ncontribute to public debate is not significantly greater than its interest in limiting a\nsimilar contribution by any member o f the general public,\xe2\x80\x9d 391 U.S. at 573, or\nbecause the Court would simply find that the D epartm ent\xe2\x80\x99s interest is not o f the\nkind recognized under the balancing test, we believe that it is almost certain that\nthe Court would hold the hypothetical NAAUSA testimony to be protected speech.\nAlthough the question might be closer in circumstances involving testimony on\nmatters on which the views of AUSAs might not be deemed to be o f significant\ncongressional interest, we do not view this hypothetical as presenting a close ques\xc2\xad\ntion.\nII. Lim ited Restrictions on the Content o f the Testimony\nAlthough the Department generally may not prohibit AUSAs from testifying be\xc2\xad\nfore congressional committees in their personal capacities on legislation of interest\n\n2\nM oreover, as a factual matter, so long as it is c le ar that A U SA s testifying on b e h alf o f N A A U SA are\nnot presenting the view s o f the D epartm ent, it does not appear that the D epartm ent\xe2\x80\x99s ability to d isch arg e its\nfunction o f presenting D epartm ent and A dm inistration view s w ould be significantly com prom ised. W hile it\nm ay be that the expression o f inconsistent view s co u ld affect the legislative outcom e, that w ould be the result\no f the \' \xe2\x80\x98free and open debate [that] is vital to inform ed d ecision-m aking by the [C ongress], \xe2\x80\x99 P ickering, 391\nU S at 571 -72, not the D epartm ent\xe2\x80\x99s inability to discharge its responsibilities.\n\n229\n\n\x0cO pinions o f th e O ffice o f L egal C ounsel\n\nto the D epartm ent, we do not believe that the First Amendment makes impermissi\xc2\xad\nble the D epartm ent\xe2\x80\x99s traditional position that its em ployees must protect confiden\xc2\xad\ntial inform ation and m ust make clear that they are not speaking in their official\ncapacities.\nThe D epartm ent has a legitimate need to ensure that the Department speaks with\none voice concerning official positions and a significant responsibility to protect\nconfidential D epartm ent information. In furtherance of these Department interests,\nthe D epartm ent provides standard instructions to current (and sometimes former)\nem ployees o f United States A ttorneys\xe2\x80\x99 offices who testify before Congress con\xc2\xad\ncerning D epartm ent m atters, whether in their official or personal capacities. See,\ne.g., Letter for Law rence J. Leiser, Esq., from Anthony C. Moscato, Director, Ex\xc2\xad\necutive O ffice for United States A ttorneys (M ay 2, 1994). The instructions specify\nthat the A U SA s are not authorized to appear in their official capacity as an AUSA\nand that they have no authority to speak for the Department or their United States\nA ttorney\xe2\x80\x99s O ffice.3 They include a request that the employee make it clear, both at\nthe beginning o f the testimony and when questions of opinion arise, that the em\xc2\xad\nployee\xe2\x80\x99s opinions are personal and d o not constitute an official position of the De\xc2\xad\npartment.\nT he standard instructions encourage AUSAs to answer fully and candidly all\nquestions concerning matters within their personal knowledge. They stress in ad\xc2\xad\ndition, however, that the appearance before the congressional committee does not\nrelieve the em ployees o f any obligations of secrecy that arise from their official\nduties as A U SA s. They give examples of the types of information that should not\nbe revealed and direct that requests for Department records be referred to the Of\xc2\xad\nfice o f Legislative Affairs. The instructions conclude with the admonition that:\nYou should be aware at all times o f your obligations to be truth\xc2\xad\nful and fair in responding to questions posed to you during the\n[testimony]. You should also carefully consider the scope of your\nansw ers in light o f all requirements o f law, rule, policy, and ethical\nstandards, w hether specifically discussed in this letter or not.\nId. at 2. T o the limited extent that such efforts curtail speech by Department em\xc2\xad\n\nployees, the effect is to protect confidential D epartm ent information that employ\xc2\xad\nees are not free to disclose. Such efforts to ensure that the Department speaks with\none voice and to protect confidential D epartm ent information fall squarely within\nthe enhanced regulatory power the D epartm ent has as employer and are consistent\nwith the First Amendm ent.\n3 S e e U n ite d S la te s A tto r n e y s \xe2\x80\x99 M anual, C h 8, \xc2\xa7 1-8.040 (\xe2\x80\x9cThe A ttorney G eneral reserves the right to\ndeterm in e w h e th er the D ep artm en t will be rep resen ted at any C ongressional hearing and, if so, w ho will\nap p ear on b e h a lf o f the D ep artm en t ").\n\n230\n\n\x0cC ongressional Testim ony o f an A ssistant U nited States A ttorney\non B eh a lf o f the N ational Association o f A ssistant U nited States A ttorneys\n\nAn AUSA who testifies in his or her personal capacity is also subject to gov\xc2\xad\nernment-wide ethics regulations which prohibit the AUSA from using or permitting\nthe use of his or her official title or position in connection with the testimony ex\xc2\xad\ncept as one o f several biographical details. Office of Government Ethics regula\xc2\xad\ntions provide that\nan em ployee shall not use or permit the use of his Government po\xc2\xad\nsition or title or any authority associated with his public office in a\nmanner that could reasonably be construed to imply that his agency\nor the Governm ent sanctions or endorses his personal activities or\nthose o f another. When . . . speaking . . . in a personal capacity, he\nmay refer to his official title or position only as permitted by\n\xc2\xa7 2635.807(b).\n5 C.F.R. \xc2\xa7 2635.702(b) (1994). The only permissible reference to official title or\nposition is that \xe2\x80\x9c[a]n employee may include or permit the inclusion of his title or\nposition as one of several biographical details when such information is given to\nidentify him in connection with his . . . speaking . . . , provided that his title or po\xc2\xad\nsition is given no more prominence than other significant biographical details.\xe2\x80\x9d\n5 C.F.R. \xc2\xa7 2635.807(b)(1) (1994).\n\nW ALTER DELLINGER\nA ssistan t A ttorn ey G eneral\nOffice o f L egal Counsel\n\n231\n\n\x0c'


b'March 14, 1979\n\n79-16\n\nMEMORANDUM OPINION FOR THE\nCOUNSEL TO THE PRESIDENT\nDesignation of Acting General Counsel\xe2\x80\x94Federal\nLabor Relations Authority\n\nThe Federal Labor Relations A uthority (Authority) has made an inquiry\nconcerning the question o f designating an Acting General Counsel for the\nAuthority. In our opinion the power to make such a designation is vested\nin the President. The issue is one o f statutory interpretation. We are ad\xc2\xad\ndressing this memorandum to you because it involves a question of\nPresidential authority. Mr. Cardozo is aware o f this matter. He has asked\nus to send a copy o f this memorandum to the Federal Labor Relations\nAuthority, which we have done.\nThe Federal Labor Relations Authority was originally created, by \xc2\xa7 301\no f Reorganization Plan No. 2 o f 1978 (Plan), as an independent establish\xc2\xad\nment in the executive branch. Section 302 o f the Plan provides for a\nGeneral Counsel o f the A uthority to be appointed by the President by and\nwith the advice and consent o f the Senate. Under \xc2\xa7 402 o f the Plan the\nPresident may fill the office o f General Counsel on an interim basis until it\nis first filled pursuant to the provisions o f the Plan or by way o f recess ap\xc2\xad\npointm ent.1 The pertinent provisions o f the Plan became effective on\nJanuary 1, 1979. See Executive Order No. 12107 o f December 29, 1978.\nThe Civil Service Reform Act o f 1978 (Act) became effective on January\n11, 1979.2 Section 701 o f the Act added to title 5, United States Code, a\nsection 7104 providing for a Federal Labor Relations A uthority and a\n\n1 Section 402 reads in pertinent part as follows:\nSection 402. Interim Officers, (a) The President may authorize any persons who, im\xc2\xad\nmediately prior to the effective date o f this Plan, held positions in the Executive\nBranch o f the G overnm ent, to act as * * * the General Counsel o f the A uthority, un\xc2\xad\ntil those offices are for the first time filled pursuant to the provisions o f this\nReorganization Plan or by recess appointm ent, as the case may be.\n2 Section 907 o f the Act provides that it shall take effect 90 days after its enactm ent. It was\napproved by the President on O ctober 13, 1978.\n\n101\n\n\x0cGeneral Counsel o f the Authority. Its members and General Counsel are\nto be appointed by the President by and with the advice and consent o f the\nSenate. The Act, however, does not in terms contain an interim designa\xc2\xad\ntion authority corresponding to \xc2\xa7 402 o f the Plan.\nThe President gave recess appointm ents to two members o f the A uthor\xc2\xad\nity during the interval between the 95th and 96th Congresses. He did not,\nhowever, make such an appointm ent to the office o f General Counsel. We\nhave been told that the lack o f a General Counsel seriously hampers the\noperations o f the A uthority. In particular, because o f the close interrela\xc2\xad\ntion o f the functions o f the A uthority and those o f its General Counsel,\nthe Authority is unable to issue its rules and regulations as required by the\nAct, 5 U.S.C. \xc2\xa7 7134, without being joined by the General Counsel. It is\nour opinion th at it was the intention of Congress to preserve the\nPresident\xe2\x80\x99s express authority under \xc2\xa7 402 o f the Plan to designate an Act\xc2\xad\ning General Counsel. This intention is reflected in the transitional provi\xc2\xad\nsions o f the Act.\nSection 904 o f the Act provides:\nExcept as otherwise expressly provided in this Act, no provision\no f this Act shall be construed to \xe2\x80\x94(1) limit, curtail, abolish, or\nterminate any function of, or authority available to, the Presi\xc2\xad\ndent which the President had immediately before the effective\ndate o f this Act; * * *.\nImmediately before the effective date o f the Act the President clearly had\nthe authority under \xc2\xa7 402 o f the Plan to designate an Acting General\nCounsel. The Act, as mentioned above, does not confer a similar authority\non the President; but it does not contain any express provision to the con\xc2\xad\ntrary. The President therefore retains his power to make an interim desig\xc2\xad\nnation under \xc2\xa7 402 o f the Plan, notwithstanding the subsequent coming\ninto effect o f the Act.\nThe same result follows from \xc2\xa7 905 o f the Act, dealing specifically with\nthe interrelation between the Act and Reorganization Plan 2 o f 1978. That\nsection provides:\nAny provision in either Reorganization Plan Number 1 or 2 of\n1978 inconsistent with any provision in this Act is hereby\nsuperseded.\nThere is no provision in the Act inconsistent with the President\xe2\x80\x99s interim\ndesignation authority under \xc2\xa7 402 o f the Plan. The mere silence o f the Act\nwith respect to a transitional provision o f the Plan is plainly not an\ninconsistency.\nAs we see it, the President thus has the power under \xc2\xa7 402 o f the Plan to\nauthorize a person who on December 31, 1978, held a position in the ex\xc2\xad\necutive branch o f the Governm ent to act as the General Counsel o f the\nAuthority until a General Counsel is appointed by him by and with the ad\xc2\xad\nvice and consent o f the Senate.\nWe also note that the provisions o f the Vacancy Act, 5 U.S.C.\n\xc2\xa7\xc2\xa7 3345-3349 (in particular \xc2\xa7 3348, which limits an interim designation to\n102\n\n\x0cthe first 30 days o f a vacancy), are not applicable to the situation at hand.\nFirst, that Act applies only to vacancies in the executive and military\ndepartments as defined in 5 U.S.C. \xc2\xa7\xc2\xa7 101, 102. The A uthority is not an\nexecutive or military departm ent; it is an \xe2\x80\x9c independent establishment in\nthe Executive Branch\xe2\x80\x9d within the scope o f 5 U .S.C . \xc2\xa7 104. Section 101 o f\nthe P lan.3 Moreover, 5 U.S.C. \xc2\xa7 3348 applies by its own terms only where\na vacancy was filled temporarily pursuant to the provisions o f the Vacancy\nAct. Here the designation would not be made under that Act but under the\nauthority o f \xc2\xa7 402 o f the Plan.\nL e o n U lm a n\n\nDeputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n1 There is no corresponding provision in the Act. This provision o f the Plan, therefore, re\xc2\xad\nmains in effect in the absence o f an inconsistent provision in the Act. See \xc2\xa7 905 of the Act,\n\nsupra.\n\n\x0c'


b'Department of Justice Representation of Federal Employees in\nFair Employment Suits\nGovernm ent attorneys are not prohibited by 18 U .S .C . \xc2\xa7 205 from representing federal em ployees in\njudicial personnel adm inistration proceedings, as long as the representation is uncom pensated and\nis not inconsistent w ith the attorney\xe2\x80\x99s perform ance of his or her official duties. However, D epart\xc2\xad\nment of Justice regulations prohibit departm ental attorneys from representing federal em ployees in\nfair em ploym ent suits in federal court, explicitly lim iting such representation to adm inistrative\ncom plaint procedures.\n\nJuly 23, 1982\nMEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY\nGENERAL, CIVIL RIGHTS DIVISION\nThis responds to your request for the views of this Office regarding the\nrepresentation by Department of Justice attorneys of federal employees with\nEqual Employment Opportunity (EEO) complaints. Specifically, you asked\nwhether a Department of Justice attorney could represent a federal employee in a\nfair employment suit against a federal agency, and if so, whether such representa\xc2\xad\ntion depended upon the division or section in which the attorney works, or\nwhether the employee\xe2\x80\x99s claim was against the Department of Justice.\nThe statute which addresses the \xe2\x80\x9c conflict of interest\xe2\x80\x9d issues raised by your\nrequest is 18 U.S.C. \xc2\xa7 205.\' This section prohibits \xe2\x80\x9c officer[s] or employee[s] of\nthe United States\xe2\x80\x9d from \xe2\x80\x9c act[ing] as agent or attorney for prosecuting any claim\n\n1 18 U.S C \xc2\xa7 205 provides in pertinent part:\nWhoever, being an officer or employee of the United States in the executive, legislative, or judicial\nbranch of the Government or in any agency of the United States, including the District of Columbia,\notherwise than in the proper discharge of his official duties\xe2\x80\x94\n(1) acts as agent or attorney for prosecuting any claim against the United States, or receives any\ngratuity, or any share of or interest in any such claim in consideration of assistance in the\nprosecution of such claim, or\n(2) acts as agent or attorney for anyone before any department, agency, court, court-martial,\nofficer, or any civil, military, o r naval commission in connection with any proceeding, applica\xc2\xad\ntion, request fo ra ruling or other determination, contract, claim, controversy, charge, accusation,\narTest, or other particular matter in which the United States is a party or has a direct and substantial\ninterest\xe2\x80\x94\nShall be fined not more than $10,000 or imprisoned for not more than two years, or both\n*\n\n*\n\n*\n\n*\n\n*\n\nNothing herein prevents an officer or employee, if not inconsistent with the faithful performance\nof his duties, from acting without compensation as agent or attorney for any person who is the subject\nof disciplinary, loyalty, or other personnel administration proceedings in connection with those\nproceedings.\n\n461\n\n\x0cagainst the United States, or receiv[ing] any gratuity, [therefor]\xe2\x80\x9d or from\n\xe2\x80\x9c act[ing] as agent or attorney for anyone before any department, agency, [or]\nco u rt. . . in connection with any proceeding,. . . in which the United States is a\nparty or has a direct and substantial interest.\xe2\x80\x9d Excepted from the prohibitions\ncontained in this section are \xe2\x80\x9cofficer[s] or employee[s] [who,] if not inconsistent\nwith the faithful performance of [their] duties, . . . act [ ] without compensation\nas agent or attorney for any person who is the subject of disciplinary, loyalty, or\nother personnel adm inistration proceedings in connection with those\nproceedings.\xe2\x80\x9d\nWith respect to Department of Justice employees, the Department has promul\xc2\xad\ngated regulations with similar language in 28 C.F.R. \xc2\xa7 45.735-9(c)(l),2 and\n\xc2\xa7 45.735-6(c) (1981 ).3 In addition, in 1973 the Department issued DOJ Order\n1713.5 establishing its policy regarding volunteer representation of employees of\nthe Department who are involved in EEO complaint procedures.4 This order,\nwhich is embraced by regulations most recently revised by the Department in\n1980, prohibits the representation of EEO complainants in federal court by\nDepartment attorneys, explicitly limiting such representation to administrative\ncomplaint procedures.\nAs you noted in your opinion request, Attorney General Edward H. Levi\nissued two memoranda on November 20, 1975, encouraging representation by\nall government attorneys of federal employees with EEO complaints \xe2\x80\x9c during all\nphases of the proceedings,\xe2\x80\x9d so long as the representation would not be inconsis\xc2\xad\ntent with the employee\xe2\x80\x99s faithful performance of his or her duties and the\nemployee is not compensated for such work. Levi, Memorandum to All Em\xc2\xad\nployees re: Representing Equal Employment Opportunity Complainants at 1\n(November 20, 1975); Levi, Memorandum to Heads of Departments and Agen\xc2\xad\ncies re: Representation by Federal Employees of EEO Complainants (November\n20, 1975). The memorandum directed to the heads of agencies stated that, while\nthe Department of Justice found no distinction under \xc2\xa7 205 between admin\xc2\xad\nistrative and judicial proceedings, the determination whether policy considera\xc2\xad\ntions warranted a distinction between administrative and judicial proceedings\nwas the responsibility of each agency.\nThe memorandum directed to Department of Justice employees did not ex\xc2\xad\nplicitly prohibit representation by federal employees of EEO complainants in\njudicial proceedings; however, the memorandum does appear to have con\xc2\xad\n2 Section 4 5 .7 3 5 -9 (c)(l) provides in pertinent part:\nRepresentation of Federal Employees in Equal Employment Opportunity (EEO) complaint pro\xc2\xad\ncedures may be provided in accordance with \xc2\xa7 45.735-6(c) of this title and the Department\xe2\x80\x99s\nestablished EEO policy (see DOJ O rder 1713.5) rather than this subsection.\n3 Section 45 735-6(c) provides:\n(c) Nothing in this part shall be deem ed to prohibit an employee, if it is not otherwise inconsistent\nwith the faithful performance of his duties, from acting without compensation as agent or attorney for\nany person in a disciplinary, loyalty, o r other Federal personnel administration proceeding involving\nsuch person\n4 See Department o f Justice Order No. 1713 5, Volunteer Representatives for Employees Involved in EEO\nComplaint Procedures (Oct. 30, 1973)\n\n462\n\n\x0ctemplated such a limitation,5 particularly when considered in the context of the\n1973 DOJ Order 1713.5, which established the \xe2\x80\x9c EEO Volunteer Representatives\nProgram\xe2\x80\x9d for the Department, and current Department regulations citing that\norder.6\nThus, in answer to your specific question, Department of Justice attorneys are\npresently prohibited from representing federal EEO complainants in federal\ncourts\xe2\x80\x94 without regard to the division in which the attorney is employed, or\nwhether the complaint has been filed against the Department of Justice. We\nwould add that this prohibition is based on DOJ Order 1713.5 and current\nDepartment regulations, not on our interpretation of the conflict of interest\nprovisions contained in \xc2\xa7 205. Both prior to and since Attorney General Levi\xe2\x80\x99s\nNovember 20, 1975, memorandum to agency heads, this Office has taken the\nposition that \xc2\xa7 205 excepts from its general conflicts provision the representation\nof federal employees in personnel administration proceedings in court as well as\nbefore agencies, so long as the representation does not, in the judgment of an\nappropriate official, conflict with the attorney\xe2\x80\x99s official duties.7\nL arry\n\nL.\n\nS im m s\n\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n5 In discussing the relevant conflict of interest provision, the memorandum states that a federal employee\n\xe2\x80\x9c representing a person before a government agency in a personnel proceeding, such as the EEO complaint\nprocess.\xe2\x80\x9d is generally exempt from the conflict of interest laws, so long as the representation is uncompensated and\nis not inconsistent with the attorney\xe2\x80\x99s faithful performance of his or her duties Levi, Memorandum to All\nEmployees, supra at 2 (emphasis added)\n6 But c f Rex E. Lee, Assistant Attorney General, Civil Division, Memorandum to All Section and Unit Chiefs re\nRepresentation by Federal Employees of EEO Complainants (Mar 26. 1976) (concluding that the Levi memoran\xc2\xad\ndum to Department employees does authorize representation in federal courts by Department of Justice attorneys,\nbut advising Civil Division attorneys that they are not authonzed to participate tn such representation because o f the\nconflicts that might arise, \xe2\x80\x9c since the representation of the government in these cases is a traditional function of the\nCivil Division once the case proceeds to litigation." Id. at I ).\n1 See Roger X Cramton, Assistant Attorney General, Memorandum for the Deputy Attorney General re\nRepresentation by Department of Justice Attorneys of Federal Workers Claiming Discrimination in Employment\n(Oct. 3 1. 1972): Leon Ulman. Acting Assistant Attorney General Memorandum for the Assistant Attorney General,\nCnminal Division re. Charles E. Langyher, III, et. al. v United States\xe2\x80\x94 Applicability of 18 U S.C. \xc2\xa7 205 to\nParticipation of Counsel (May 10, 1972); Frank Wozencraft, Assistant Attorney General, Letter to the General\nCounsel. United States Civil Service Commission (May 8, 1967); Norbert X Schlei. Assistant Attorney G eneral,\nLetter to the General Counsel. Post Office Department (Feb 26, 1965)\n\n463\n\n\x0c'


b'Relevance of Senate Ratification History\nto Treaty Interpretation\nT h e m o st re le v a n t ex trin sic evidence o f a treaty \xe2\x80\x99s m eaning a re exchanges betw een the parties\nn e g o tia tin g it, i.e., th e President a n d the foreign pow er. T he p ortions o f the ratification record\ne n title d to th e g re a te st weight a re rep re sen tatio n s o f the E xecutive, w h o is in essen ce the\nd ra ftsm a n o f th e tre a ty . The S e n a te \xe2\x80\x99s advice an d co n sen t function w as designed by the\nF ra m e rs as a ch e c k on the P re sid e n t\xe2\x80\x99s treaty -m ak in g p o w er, and the S e n ate\xe2\x80\x99s delib eratio n s\ncan n o t b e ig n o red altogether. N o n e th e le ss, in all but the m o st unusual cases, the ratification\nre c o rd is n o t the determ inative s o u rc e o f ev id en ce as to th e tre a ty \xe2\x80\x99s m eaning under dom estic\nlaw .\n\nApril 9, 1987\nM\n\nem orandum\n\nD\n\nO\n\np in io n f o r t h e\n\nepartm ent o f\n\nL e g a l A d v is e r ,\n\nSta te\n\nI. Introduction and Summary\nThis memorandum responds to your request for the views of this Office\nconcerning the relevance of the Senate\xe2\x80\x99s deliberations on ratification of a treaty\nto subsequent interpretations of ambiguous treaty language by the Executive\nBranch. We use the term \xe2\x80\x9cdeliberations\xe2\x80\x9d or \xe2\x80\x9cratification record\xe2\x80\x9d to encompass\nsources such as hearings, committee reports, and floor debates, which are\ngenerally analogous to the \xe2\x80\x9clegislative history\xe2\x80\x9d of domestic statutes. Our focus\nis on the relevance of those sources to interpretation of a treaty as domestic law,\ni.e., their relevance to the President\xe2\x80\x99s constitutional responsibility to \xe2\x80\x9ctake Care\nthat the Laws be faithfully executed.\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 3.1 We understand\nthat you are reviewing separately the relevance that would be ascribed under\ninternational law to the Senate\xe2\x80\x99s ratification record.\nThe question you raise does not lend itself to any clear or easy answer. As\ndiscussed below, the dual nature of treaties as international agreements and as\ndomestic law and the concomitant division of the treaty-making power be\xc2\xad\ntween the President and the Senate create an inevitable tension. Primarily,\ntreaties are international obligations, negotiated by the President in his capacity\nas the \xe2\x80\x9csole organ of the federal government in the field of international\nrelations,\xe2\x80\x9d United States v. Curtiss-W right Export Corp., 299 U.S. 304, 320\n1 It is indisputable that treaties are am ong the \xe2\x80\x9csupreme Law[s] of the Land,\xe2\x80\x9d U.S. Const, art. VI, cl. 2, and\nthat the President\xe2\x80\x99s constitutional duty under Article II extends to treaties as well as to statutes and the\nConstitution itself. See I Op. Att\xe2\x80\x99y Gen. 566, 570 (1822); In re Neagley 135 U.S. 1, 64 (1890).\n\n28\n\n\x0c(1936). The most relevant evidence of the meaning of a treaty lies in the mutual\nexchange of views between the negotiating parties \xe2\x80\x94 an exchange in which the\nSenate does not formally participate unless it explicitly conditions its consent\nto a treaty and that condition is communicated to and accepted by the other\nparty. Because the advice and consent function of the Senate, however, was\ndesigned by the Framers as a constitutional check on the President\xe2\x80\x99s otherwise\nbroad authority to make treaties that have the force of law, we believe that the\ndeliberative record that is created when the Senate advises and consents to a\ntreaty cannot be ignored in the\'interpretative process. Nonetheless, in all but\nthe most unusual case, the ratification record would not be the determinative \xe2\x80\x94\nor even the primary \xe2\x80\x94 source of evidence as to the treaty\xe2\x80\x99s meaning under\ndomestic law.\nIn determining the weight to be assigned to that record, it should be observed\nthat, conceptually, the constitutional division of treaty-making responsibility is\nessentially the reverse of the division of law-making authority. Congress\ninitially agrees upon and enacts the language of domestic legislation, while the\nPresident reserves the right to determine whether that legislation will go into\neffect (subject, of course, to the override of any veto). Treaties, however, are\nproposed and negotiated by the President, subject to the approval or disap\xc2\xad\nproval of the Senate. Given this conceptual framework, it is clear that the\nportions of the treaty ratification record that should be accorded more weight as\nto the treaty\xe2\x80\x99s meaning are the representations of the executive \xe2\x80\x94 the drafts\xc2\xad\nman, in effect, of the treaty. Statements by individual Senators, or even groups\nof Senators, are certainly entitled to no more consideration \xe2\x80\x94 and perhaps less\n\xe2\x80\x94 than the limited weight such statements are given in the interpretation of\ndomestic legislation when they are not confirmed by the legislation\xe2\x80\x99s sponsor\nin colloquy or otherwise.\nn . Constitutional Division of Treaty Authority\nThe powers of the national government were deliberately divided by the\nFramers among the three coordinate branches, because they considered the\nconcentration of governmental power to be the greatest threat to individual\nliberty. \xe2\x80\x9cBasic to the constitutional structure established by the Framers was\ntheir recognition that \xe2\x80\x98[t]he accumulation of all powers, legislative, executive,\nand judiciary, in the same hands . .. may justly be pronounced the very\ndefinition of tyranny.\xe2\x80\x99\xe2\x80\x9d Northern Pipeline Co. v. Marathon Pipe Line Co., 458\nU.S. 50, 57 (1982) (quoting The Federalist No. 47, at 300 (J. Madison) (H.\nLodge ed. 1888)). Accordingly, \xe2\x80\x9c[t]he Constitution sought to divide the del\xc2\xad\negated powers of the new Federal Government into three defined categories,\nLegislative, Executive, and Judicial, to assure, as nearly as possible, that each\nbranch of government would confine itself to its assigned responsibility.\xe2\x80\x9d INS\nv. Chadha, 462 U.S. 919, 951 (1983); see also Buckley v. Valeo, 424 U.S. 1,\n122 (1976). The Supreme Court has long acknowledged that the partitions\nseparating each branch of government from the others must be maintained\n29\n\n\x0cinviolable if liberty is to be preserved. \xe2\x80\x9cThe hydraulic pressure inherent within\neach of the separate Branches to exceed the outer limits of its power, even to\naccomplish desirable objectives, must be resisted.\xe2\x80\x9d INS v. Chadha, 462 U.S. at 951.\nUnder this separation of powers, the President has a dual role with respect to\ntreaties. First, the President is responsible for \xe2\x80\x9cmaking\xe2\x80\x9d treaties, i.e., entering\ninto negotiations with foreign governments and reaching agreement on specific\nprovisions. U.S. Const, art. II, \xc2\xa7 2, cl. 2. Second, as part of his responsibility to\n\xe2\x80\x9ctake Care that the Laws be faithfully executed,\xe2\x80\x9d2 and as the \xe2\x80\x9csole organ of the\nfederal government in the field of international relations,\xe2\x80\x9d3 the President is\nresponsible for enforcing and executing international agreements, a responsi\xc2\xad\nbility that necessarily \xe2\x80\x9cinvolve[s] also the obligation and authority to interpret\nwhat the treaty requires.\xe2\x80\x9d L. Henkin, Foreign Affairs and the Constitution 167\n(1972) (Henkin); see also Collins v. Weinberger, 707 F.2d 1518, 1522 (D.C.\nCir. 1983); American Law Institute, Restatement o f the Law, Foreign Relations\nLaw o f the United States (Second), \xc2\xa7\xc2\xa7 149,150(1965 ) (Restatement (Second));\naccord American Law Institute, Restatement o f the Law, Foreign Relations\nLaw o f the United States (Revised) (Tentative Final Draft, July 15, 1985) \xc2\xa7 326\n(Restatement (Revised )).4\nThe President\xe2\x80\x99s authority to make treaties is shared with the Senate, which\nmust consent by a two-thirds vote.5 This \xe2\x80\x9cJOINT AGENCY of the Chief\nMagistrate of the Union, and of two-thirds of the members of [the Senate]\xe2\x80\x9d6\nreflects the Framers\xe2\x80\x99 recognition that the negotiation and acceptance of treaties\nincorporates both legislative and executive responsibilities:\n[T]he particular nature of the power of making treaties indicates\na peculiar propriety in that union. Though several writers on the\nsubject of government place that power in the class of executive\nauthorities, yet this is evidently an arbitrary disposition; for if\nwe attend carefully to its operation it will be found to partake\nmore of the legislative than of the executive character, though it\ndoes not seem strictly to fall within the definition of either of\nthem. The essence of the legislative authority is to enact laws,\nor, in other words, to prescribe rules for the regulation of the\nsociety; while the execution of the laws and the employment of\nthe common strength, either for this purpose or for the common\ndefense, seem to comprise all the functions of the executive\n2 U.S. Const, art. II, \xc2\xa7 3.\n3 United States v. Curtiss-Wright Export Corp , 299 U.S. at 320; see also Haig v. Agee, 453 U.S. 280, 29 1292 (1981); Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 190 (1948).\n4 The P resident\xe2\x80\x99s interpretation o f a treaty is, o f course, subject to review by the courts in a case or\ncontroversy that m eets A rticle III requirements. See U.S. C onst, art. Ill, \xc2\xa7 2 (\xe2\x80\x9cThe judicial Power shall extend\nto all C a s e s ,. . . arising under this C onstitution, the Laws o f the United States, and Treaties made, or which\nshall be m ade, under th eir Authority"); see also Kolovrat v. Oregon , 366 U. S 187, 194 (1961); Factor v.\nLaubenheimer , 290 U.S. 276, 294 (1933); Jones v. Meehan, 175 U.S. 1, 32 (1899).\n5 \xe2\x80\x9c [The President] shall have Power, by and w ith the A dvice and C onsent o f the Senate, to make Treaties,\nprovided tw o thirds o f the Senators present concur. . .\nU.S. Const, art. II, \xc2\xa7 2, cl. 2.\n6 The Federalist No. 66, at 406 (A. H am ilton) (C. R ossiter ed. 1961).\n\n30\n\n\x0cmagistrate. The power of making treaties is, plainly, neither the\none nor the other . . . . The qualities elsewhere detailed as indis\xc2\xad\npensable in the management of foreign negotiations point out\nthe executive as the most fit agent in those transactions; while\nthe vast importance of the trust and the operation of treaties as\nlaws plead strongly for the participation of the whole or a\nportion of the legislative body in the office of making them.\nThe Federalist No. 75, at 450-51 (A. Hamilton) (C. Rossiter ed. 1961); see also\nThe Federalist No. 64, at 390-93 (J. Jay); The Federalist No. 66, at 402-03 (A.\nHamilton); see generally Congressional Research Service, Treaties and Other\nInternational Agreements: The Role o f the United States Senate, 98th Cong., 2d\n\nSess. 25-28 (Comm. Print prepared for the Senate Comm, on Foreign Rela\xc2\xad\ntions, 1984) (CRS Study). Rather than vest either Congress or the President\nwith the sole power to make treaties, the Framers sought to combine the\njudgment of both, providing that the President shall make the treaties, but\nsubject to the \xe2\x80\x9cadvice and consent\xe2\x80\x9d of the Senate. Thus, the Framers included\nthe Senate in the treaty-making process because the result of that process, just\nas the result of the legislative process, is essentially a law that has \xe2\x80\x9cthe effect of\naltering the legal rights, duties and relations of persons . . . outside the Legisla\xc2\xad\ntive Branch.\xe2\x80\x9d IN S v. Chadha, 462 U.S. at 952. As discussed above, however,\nconceptually the constitutional division of treaty-making responsibility be\xc2\xad\ntween the Senate and the President is essentially the reverse of the division of\nlaw-making authority, with the President being the draftsman of the treaty and\nthe Senate holding the authority to grant or deny approval.\nIII. Senate Practice\nIn practice, the Senate\xe2\x80\x99s formal participation in the treaty-making process\nbegins after negotiation of the treaty.7 At that time, the President transmits the\ntreaty to the Senate, with a detailed description and analysis of the treaty, and\nany protocols, annexes, or other documents that the President considers to be\nintegral parts of the proposed treaty. See CRS Study at 105. Under the Senate\xe2\x80\x99s\nrules, treaties are referred to the Senate Foreign Relations Committee,8 which\n7 President W ashington attem pted to consult w ith the Senate, with limited success, on the negotiation of\nseveral treaties w ith the Indians. By 1816 the practice had becom e firmly established (hat the Senate would\ngrant its \xe2\x80\x9cadvice and consent\xe2\x80\x9d to treaties already negotiated by the President or his representatives. See\nHenkin at 131-132; CRS Study at 34-36.\n8 A lthough jurisd ictio n to review treaties is vested solely in the Foreign R elations Com m ittee, Rule 25,\nStanding Rules o f the Senate, S. Doc. No. 9 9 -1 3 , 99th Cong., 1st Sess. (1985), upon occasion other\ncom m ittees have asserted an interest in the subject m atter o f the treaty, even though they have no jurisdiction\nto m ake form al recom m endations. For exam ple, the Senate Armed Services Committee has held extensive\nhearings on the \xe2\x80\x9cm ilitary im plications\xe2\x80\x9d o f various treaties, including the ABM and SA LT II treaties. See\n\nHearings on the Military Implications o f the Treaty on the Limitations o f Antt-Ballistic Missile Systems and\nthe Interim Agreement on Limitation o f Strategic Offensive Arms before the Senate Comm on Armed\nServices, 92d C ong., 2d Sess. (1972); Hearings on the Military Implications o f the Treaty on the Limitation o f\nStrategic Offensive Arms and Protocol Thereto before the Senate Comm, on Armed Services, 96th Cong , 1st\nSess. (1979); see generally CRS Study at 106-07.\n\n31\n\n\x0cmay hold hearings to develop a record explaining the purposes, provisions, and\nsignificance of the agreement. Typically, the principal witnesses at such hear\xc2\xad\nings are representatives of the Executive Branch. The Foreign Relations Com\xc2\xad\nmittee then issues a report to the full Senate, with its recommendation on\napproval of the treaty.\nThe Senate\xe2\x80\x99s practice has been to approve, to disapprove, or to approve with\nconditions, treaties negotiated by the Executive Branch. Express conditions\nimposed by the Senate may include \xe2\x80\x9cunderstandings,\xe2\x80\x9d which interpret or\nclarify the obligations undertaken by the parties to the treaty but do not change\nthose obligations,9 or \xe2\x80\x9creservations\xe2\x80\x9d and \xe2\x80\x9camendments,\xe2\x80\x9d which condition the\nSenate\xe2\x80\x99s consent on amendment or limitation of the substantive obligations of\nthe parties under the agreement.10 On occasion, the Senate has accompanied its\nconsent by \xe2\x80\x9cdeclarations,\xe2\x80\x9d which state the Senate\xe2\x80\x99s position, opinion, or inten\xc2\xad\ntion on issues raised by the treaty, although not on the provisions of the specific\ntreaty itself.11 See CRS Study at 110.\nIV. Melevamce off tine Semsitte RatifficattijM Eecord\nA. Express Conditions\n\nWhen the Senate includes express conditions as part of its resolution of\nconsent to ratification, the President may, if he objects, either refuse to ratify\nthe treaty or resubmit it to the Senate with the hope that it will be approved\nunconditionally the second time. See 14 M. Whiteman, Digest o f International\nLaw, 138 (1970). If the President proceeds with ratification, however, such\nunderstandings or other conditions expressly imposed by the Senate are gener\xc2\xad\nally included by the President with the treaty documents deposited for ratifica\xc2\xad\ntion or communicated to the other parties at the same time the treaty is\ndeposited for ratification.12 See id. at 188-93. Because such conditions are\n9 See generally C RS Study at 11, 109-110; S. Rep. No. 4 7 , 96th C ong., 1st Sess. 13-25 (1979) (Panam a\nC anal T reaty); S. Rep. No. 29, 97th Cong., 1st Sess. 45 (1981) (SALT II Treaty).\n10See generally C RS Study at 109-110; H enkin at 134 & n.23 (1972); S. Rep. No. 4 7 , 96th Cong., 1st Sess.\n2 4 -2 5 (P anam a C anal Treaty); S. Rep. N o. 29, 97th Cong., 1st Sess. 4 4 -4 5 (SALT II Treaty).\n11 Such \xe2\x80\x9cdeclaratio n s," w hich do not p u rport to interpret the treaty but only to express a \xe2\x80\x9csense o f the\nS enate\xe2\x80\x9d w ith respect to related issues, m ay o r may not be included by the President in the instrum ent of\nra tificatio n subm itted to the other parties. See , e.g., CRS S tudy at 110 & n.10 (discussing 1976 Treaty of\nF rien d sh ip and C ooperation with Spain).\n12 Treaties usually require international action such as the exchange o r deposit o f instrum ents o f ratification\nin o rd er to estab lish international obligations. See 14 W hitem an, supra, a t 62; Vienna Convention on the Law\no f T reaties, art. 2. In general, conditions th at a lter the o bligations o f a party under the treaty must be presented\nw ith the treaty docum ents. See 14 M. W hitem an, supra, at 188-193. \xe2\x80\x9c U nderstandings\xe2\x80\x9d or \xe2\x80\x9cdeclarations,\xe2\x80\x9d\nw hich o n ly clarify the m eaning of a treaty provision or describe a policy, rather than alter the meaning o f the\ntreaty , are g enerally com m unicated to th e other parties, but are not necessarily included with the official\ntreaty docum ents. Id. In 1976, the President com m unicated five Senate \xe2\x80\x9cdeclarations\xe2\x80\x9d relating to the Treaty\no f Friendship and C ooperation with Spain o f 1976, 27 U .S.T. 3005, T.I.A .S. No. 8360, separately from the\nratificatio n , ex p lain in g that he viewed the declarations as appropriate \xe2\x80\x9cstatem ents o f hope and expressions o f\nopin io n \xe2\x80\x9d and as \xe2\x80\x9cstatem ents o f dom estic U nited States processes.\xe2\x80\x9d [1976] Digest o f U.S. Practice in\nInternational Law 214\xe2\x80\x9417 (described in Restatement (Revised) \xc2\xa7 314, n .l). The Senate Foreign Relations\nC ontinued\n\n32\n\n\x0cconsidered to be part of the United States\xe2\x80\x99s position in ratifying the treaty, they\nare generally binding on the President, both internationally and domestically,\nin his subsequent interpretation of the treaty.13 See generally United States v.\nSchooner Peggy, 5 U.S. (1 Cranch) 103,107 (1801); H a v e r\\. Yaker, 76 U.S. (9\nWall.) 32,35 (1869); Hidalgo County Water Control and Improvement District\nNo. 7 v. Hedrick, 226 F.2d 1, 8 (5th Cir. 1955); Restatement (Revised) \xc2\xa7 323.\nB. Statements in the Ratification Record\n\nThe more difficult question is what relevance, if any, the President must give\nto less formal, contemporaneous indications of the Senate\xe2\x80\x99s understanding of\nthe treaty, i.e., statements in committee reports, hearings, and debates which\nmay reflect an understanding of certain treaty provisions by some Senators, but\nwhich were not embodied in any formal understanding or condition approved\nby the entire Senate.14 With the not insubstantial exception of representations\nmade or confirmed by the Executive Branch (discussed below), we believe\nsuch statements have only limited probative value and therefore are entitled to\nlittle weight in subsequent interpretations of the treaty.15\n12 ( . . . continued)\nCom m ittee has criticized this practice in the past, and has recom m ended a three-tiered categorization o f\nconditions: (1) those that do not d irectly involve form al notice to or agreem ent by the other parties; (2) those\nthat would be form ally com m unicated to the other parties as official statem ents o f the position o f the U nited\nStates in ratifying the treaty, but that do not require their agreem ent; and (3) those that w ould require the\nexplicit agreem ent o f the other parties for the treaty to come into force. S. Exec. Rep. 96-14, 96th Cong., 1st\nSess. 18, 28 (1979).\ni3This presum es, o f course, that the condition is within the S en ate\'s authority to impose as part o f its treatymaking authority. T he Senate\xe2\x80\x99s authority to im pose conditions is not unlim ited merely because it m ay\nw ithhold its consent. The general principle that Congress cannot attach unconstitutional conditions to a\nlegislative benefit o r program m erely because it has authority to withhold the benefit o r pow er entirely\napplies equally to the S enate\xe2\x80\x99s advice and consent authority. See generally Wong Wing v. United States, 163\nU.S. 228, 237 (1896); Myers v. United States, 272 U.S. 52, 126(1926). The S enate may not, for exam ple, use\nits advice and consent pow er to im pose conditions that affect separate, w holly dom estic, statutory schemes.\nSee Power Authority v. Federal Power Comm\'n, 247 F.2d 538 (D.C. C ir.), vacated as moot sub nom.\nAmerican Pub. Power Association v. Power Authority, 355 U.S. 64 (1957). As w e have advised before, we do\nnot believe the Senate may impose conditions that interfere with the President\xe2\x80\x99s responsibility to execute the\nlaws. See \xe2\x80\x9cC onstitutionality o f Proposed C onditions to Senate Consent to the Interim Convention on\nC onservation o f N orth Pacific Fur Seals,\xe2\x80\x9d 10 Op. O.L.C. 12 (1986).\n14 It is clear that post hoc expressions o f legislative intent, after the treaty has been duly ratified, cannot\nchange the legal effect o f an international agreem ent to which the Senate Has given its approval. See Fourteen\nDiamond Rings v. United States, 183 U.S. 176, 179-180 (1901) (resolution adopted by C ongress after the\nSenate had consented to ratification o f a treaty is \xe2\x80\x9c absolutely w ithout legal significance\xe2\x80\x9d ). C ongress may, o f\ncourse, in effect validate an Executive Branch interpretation o f a treaty by passing legislation consistent w ith\nthat view. See generally Foster <\xc2\xa3 Elam v. Neilson, 27 U.S. (2 Pet.) 253, 309 (1830).\n13 We note that w hile a few courts have alluded to the record the Senate creates in advising and consenting\nto the ratification o f treaties, none has advanced a com prehensive theory o f w hat weight should be given to\nparticular portions o f the ratification record and none, to our know ledge, has specifically relied on represen\xc2\xad\ntations in the Senate record to support a particular construction o f a treaty. See Hidalgo County Water Control\n& Improvement District v. Hedrick t 226 F.2d at 8 (refusing to consider evidence from S enate hearings,\ncom m ittee d iscussions, and debates because the meaning o f the treaty was otherw ise clear); Coplin v. United\nStates , 6 Ct. Cl. 115, 144 (1984), rev\xe2\x80\x99d on other grounds, 761 F.2d 688 (Fed. Cir. 1985), a f f d sub nom.\nO\'Connor v. United States, 479 U.S. 27 (1986) (review ing Senate \xe2\x80\x9c legislative history\xe2\x80\x9d o f the Panam a C anal\nTreaty but finding that it w as entitled to little weight).\n\n33\n\n\x0cFirst, it must be observed that a treaty is fundamentally a \xe2\x80\x9ccontract between\nor among sovereign nations,\xe2\x80\x9d 16 and the primary responsibility \xe2\x80\x94 whether of\nthe executive or the courts \xe2\x80\x94 is \xe2\x80\x9cto give the specific words of the treaty a\nmeaning consistent with the shared expectations of the contracting parties.\xe2\x80\x9d A ir\nFrance v. Saks, 470 U.S. 392, 399 (1985). See generally Foster & Elam v.\nNeilson, 27 U.S. (2 Pet.) 253, 314 (1830) (\xe2\x80\x9cA treaty is in its nature a contract\nbetween two nations, not a legislative act.\xe2\x80\x9d). International agreements, like\n\xe2\x80\x9cother contracts . . . are to be read in the light of the conditions and circum\xc2\xad\nstances existing at the time they were entered into, with a view to effecting the\nobjects and purposes of the States thereby contracting.\xe2\x80\x9d Rocca v. Thompson,\n223 U.S. 317, 331-332 (1912). Necessarily, the best evidence of the intent of\nthe parties is the language and structure of the treaty and, secondarily, direct\nevidence of the understanding reached by the parties, as reflected in the\nnegotiating record and subsequent administrative construction,17 rather than\nunilateral, post-negotiation statements made during the Senate ratification\ndebates.\nMoreover, the constitutional role of the Senate is limited to approval or\ndisapproval of the treaty, much as the President\xe2\x80\x99s constitutional role in enact\xc2\xad\ning domestic legislation is limited to his veto power. The Senate may, if it\nchooses, amend or interpret the treaty by attaching explicit conditions to its\nconsent, which are then transmitted to, and either accepted or rejected by, the\nother parties. Absent such conditions, the Senate does not participate in setting\nthe terms of the agreement between the parties, and therefore statements made\nby Senators, whether individually in hearings and debates or collectively in\ncommittee reports, should be accorded little weight unless confirmed by the\nExecutive. We note that even in the case of domestic legislation, where Con\xc2\xad\ngress \xe2\x80\x94 rather than the President and other foreign governments \xe2\x80\x94 directly\nshapes the operative language, \xe2\x80\x9c[r]eliance on legislative history in divining the\nintent of Congress is . . . a step to be taken cautiously.\xe2\x80\x9d Piper v. Chris-Craft\nIndustries, Inc., 430 U.S. 1, 26 (1977).18\n16 TWA, Inc. v. Franklin Mint Corp., 466 U.S. 243, 262 (1984) (Stevens, J., dissenting); Washington v.\nFishing Vessel A ss\xe2\x80\x99n, 443 U .S. 658, 675 (1979).\n17See generally O \xe2\x80\x99Connor x. United States, 479 U.S. 27, 3 1 -3 3 (1986); A ir France v Saks, 470 U.S. at 396;\nMaximov v. United States, 373 U.S. 4 9 , 54 (1963); Kolovrat v Oregon , 366 U.S. at 194; Factor v.\nLaubenheimer, 290 U.S. at 294; Jones v. Meehan, 175 U .S. at 4, 23.\n18 F o r exam ple, \xe2\x80\x9cordinarily even the contem poraneous rem arks of a single legislator . . . are not controlling\nin analyzing legislative history.\xe2\x80\x9d Consumer Products Safety Comm\'n v. GTE Sylvama, 447 U.S. 102, 118\n(1980). As the C ourt stated in Weinberger v. Rossi, 456 U .S. 25 (1982):\n[0 ]n e isolated rem ark by a single Senator, am biguous in meaning when exam ined in context, is\ninsufficient to establish the kind o f affirm ative congressional expression to evidence an intent to\nabrogate provisions in 13 international agreem ents.\nId. a t 35. S im ilarly, statem ents made d u rin g legislative h earings provide oniy limited guidance as to the intent\nor understanding o f the Senate as a w hole. See, e.g , McCaughn v. Hershey Chocolate Co., 283 U.S. 488,\n4 9 3 -4 9 4 (1931); Austasia Intermodel Lines, Ltd. v. CFMC, 580 F.2d 642, 645 (D C. Cir. 1978). Committee\nreports provide im portant evidence o f the legislative intent, but are at best \xe2\x80\x9conly aids\xe2\x80\x9d in interpreting\nam biguous statutory language. See Abourezk v. Reagan, 785 F 2 d 1043 (D.C. Cir. 1986); General Motors\nCorp. v. Ruckelshaus, 742 F.2d 1561 (D .C . Cir. 1984), cert, denied, 471 U.S 1074 (1985); NLRB v. ResCare, Inc., 705 F.2d 1461 (7th O r. 1983); Mills v. United States, 713 F.2d 1249 (7th Cir. 1983), cert, denied,\n464 U .S. 1 0 6 9 (1984).\n\n34\n\n\x0cIndeed, profound foreign policy implications would be raised if the United\nStates were to supplement or alter treaty obligations to foreign governments\nbased on statements made by members of the Senate during its consideration of\nthe treaty that were not communicated to those governments in the form of\nexpress conditions. \xe2\x80\x9c[F]oreign governments dealing with us must rely upon the\nofficial instruments of ratification as an expression of the full intent of the\ngovernment of the United States, precisely as we expect from foreign govern\xc2\xad\nments.\xe2\x80\x9d Coplin v. United States, 6 Ct. Cl. at 145. In New York Indians v. United\nStates, 170 U.S. 1, 22-23 (1898), for example, the Supreme Court refused to\ngive effect, vis-a-vis the Indians, to a proviso adopted by the Senate but not\nincluded in the treaty documents subsequently presented to the Indians for their\nacceptance:\nThere is something . . . which shocks the conscience in the idea\nthat a treaty can be put forth as embodying the terms of an\narrangement with a foreign power or an Indian tribe, a material\nprovision of which is unknown to one of the contracting parties,\nand is kept in the background to be used by the other only when\nthe exigencies of a particular case may demand it. The proviso\nnever appears to have been called to the attention of the tribes,\nwho would naturally assume that the treaty, embodied in the Presi\xc2\xad\ndential proclamation contained all the terms of the arrangement.\nWe can well imagine that the United States would be deeply disturbed if the\nSoviet Union resolved ambiguities in a treaty by reference to deliberations in a\nSoviet legislative body charged with consenting to its ratification.19 If indi\xc2\xad\nvidual Senators believe that portions of a treaty are ambiguous, they may\nresolve that ambiguity in a manner consistent with the mutual process through\nwhich treaties are negotiated: either by requesting the Executive to state more\nclearly the meaning of the agreement it has reached with the foreign country, or\nby making explicit the Senate\xe2\x80\x99s understanding of the provision through a\nformal reservation or understanding attached to its resolution of approval.\nThus, while statements made by individual senators or even in committee\nreports may at times provide a gloss on other, more direct sources of evidence\nof a treaty\xe2\x80\x99s meaning, we believe they are entitled to little weight in and of\nthemselves.20\nOn the other hand, statements made to the Senate by representatives of the\nExecutive Branch as to the meaning of a treaty should have considerably more\n19Consistent w ith this view, when questions arose concerning the Panam anian interpretation o f certain key\nprovisions o f the Panam a Treaties, the State D epartm ent took the position that the United States w ould rely\non the final instrum ents o f ratification as expressing the full intent o f the parties. See CRS Study at 128 &\nn.62.\n20 The latest tentative draft o f the Restatement takes the position that \xe2\x80\x9cindication in the record that the\nSenate ascribed a particular meaning to the treaty is relevant to the interpretation of the treaty by a U nited\nStates court in m uch the same way that the legislative history o f a statute is relevant to its interpretation.\xe2\x80\x9d See\nRestatement (Revised) \xc2\xa7 314, com m ent d (T entative Final D raft). As the discussion makes clear, we believe\nthe Restatement position exaggerates som ew hat the general evidentiary significance of the Senate ratification\nrecord in interpreting am biguous provisions o f an international treaty.\n\n35\n\n\x0cweight in subsequent interpretations of ambiguous terms of the treaty. Such\nstatements do not present as substantial a threat to the reliance interests of\nforeign governments, because the Executive Branch negotiated the treaty and\nis therefore in a position to represent authoritatively the meaning of the agree\xc2\xad\nment that emerged from the negotiating process. Moreover, given that the\nSenate\xe2\x80\x99s constitutional role is limited to approving a treaty already negotiated\nby the Executive Branch and that much of the extra-textual evidence of a\ntreaty\xe2\x80\x99s meaning remains in the control of the Executive Branch, we believe the\nSenate itself has a substantial reliance interest in statements made by the\nExecutive Branch officials seeking that approval.\nAccordingly, consistent with the President\xe2\x80\x99s role as the nation\xe2\x80\x99s exclusive\nnegotiator of treaties with foreign governments, we believe that statements\nmade to the Senate by the Executive Branch during the ratification debates are\nrelevant in much the same way that contemporaneous statements by congres\xc2\xad\nsional draftsmen or sponsors of domestic legislation are relevant to any subse\xc2\xad\nquent interpretation of the statute. See, e.g., FEA v. Algonquin SNG, Inc., 426\nU.S. 548, 564 (1976) (statement by one of legislation\xe2\x80\x99s sponsors \xe2\x80\x9cdeserves to\nbe accorded substantial weight in interpreting the statute\xe2\x80\x9d); National Wood\xc2\xad\nwork M anufacturers A ss\xe2\x80\x99n v. NLRB, 386 U.S. 612, 640 (1967); Schwegmann\nBros. v. Calvert Distillers Corp., 341 U.S. 384, 394-395 (1951). We note that\nbecause of the primary role played by the Executive Branch in the negotiation\nof treaties and the implementation of foreign policy, courts generally accord\nsubstantial deference \xe2\x80\x94 albeit not conclusive effect \xe2\x80\x94 to interpretations\nadvanced by the Executive Branch. \xe2\x80\x9cWhile courts interpret treaties for them\xc2\xad\nselves, the meaning given them by the departments of government particularly\ncharged with their negotiation and enforcement is given great weight.\xe2\x80\x9d Kolovrat\nv. Oregon, 366 U.S. at 194; see also Sumitomo Shoji America, Inc. v. Avagliano,\n457 U.S. 176, 185 (1982); Collins v. Weinberger, 707 F.2d 1518, 1522 (D.C.\nCir. 1983) (\xe2\x80\x9cCourts should defer to such executive actions [interpreting a\ntreaty] provided they are not inconsistent with or outside the scope of the\ntreaty.\xe2\x80\x9d); Restatement (Revised) \xc2\xa7 326, comment b. Although the courts often\nrely on interpretative statements made by the Executive Branch prepared well\nafter negotiation and ratification of the treaty,21 they find particularly persua\xc2\xad\nsive a consistent pattern of Executive Branch interpretation, reflected in the\napplication of the treaty by the Executive and the course of conduct of the\nparties in implementing the agreement. See, e.g., O \xe2\x80\x99Connor v. United States,\n479 U.S. at 32-33. Much as contemporaneous administrative construction of\ndomestic statutes by agencies charged with their implementation is generally\naccorded considerable deference by the courts, particularly when those agen\xc2\xad\ncies have made explicit representations to Congress during consideration of the\n21 O n o ccasion, the State Department m akes specific suggestions to the court about the interpretation o f an\nagreem ent. See, e.g., Caplin v. United Stales, 761 F.2d 688, 691 (Fed. C ir. 1985), a jfd s u b nom. O \xe2\x80\x99Connor v.\nUnited States, 479 U .S 27 (1986). The courts in fact often invite the U nited States to file amicus briefs giving\nthe view s o f the Executive Branch in c ase s to w hich the U nited States is not a party. See, e.g., Sumitomo Shoji\nAmerica, Inc. v. Avagliano, 457 U.S. 176 (1982); Zschemig v. Miller, 389 U.S. 429 (1968); Kolovrat v.\nOregon , 366 U.S. 187 (1961).\n\n36\n\n\x0clegislation,22 statements made to the Senate by members of the Executive\nBranch about the scope and meaning of a treaty would be relevant evidence of\nthe Executive Branch\xe2\x80\x99s view, and therefore would be accorded deference by a\ncourt in assessing the domestic effect of the treaty.\nThe weight to be given to an interpretative statement made by an Executive\nBranch official to the Senate during the ratification process will likely depend\nupon such factors as the formality of the statement, the identity and position of\nthe Executive Branch official making the statement, the level of attention and\ninterest focused on the meaning of the relevant treaty provision, and the\nconsistency with which members of the Executive Branch adhered at the time\nto the view of the treaty provision reflected in the statement.23 All of these\nfactors affect the degree to which the Senate could reasonably have relied upon\nthe statement and, in turn, the weight that courts will attach to it. At one\nextreme, a single statement made by a middle-level Executive Branch official\nin response to a question at a hearing would not be regarded as definitive.\nRather, in interpreting the domestic effect of a treaty, the courts would likely\naccord such a statement in the ratification record a degree of significance\nsubordinate to more direct evidence of the mutual intent of the parties, such as\nthe language and context of the treaty, diplomatic exchanges between the\nPresident and the other treaty parties, the negotiating record, and the practical\nconstruction of the provision reflected in the parties\xe2\x80\x99 course of dealings under\nthe treaty. Moreover, courts often give substantial weight to the Executive\nBranch\xe2\x80\x99s current interpretation of the treaty, in recognition of the President\xe2\x80\x99s\nunique role in shaping foreign policy and communicating with foreign govern\xc2\xad\nments,24 and, accordingly, would be unlikely to bind future chief executives on\nthe basis of an isolated remark of an Executive Branch official in a previous\nadministration. In general, therefore, less formal statements made by the Ex\xc2\xad\necutive Branch before the Senate (such as the one described in the preceding\nhypothetical) will be but one source of relevant evidence to be considered in\ninterpreting an ambiguous treaty provision.\nIn contrast, in a case in which the statements by the Executive Branch\namount to a formal representation by the President concerning the meaning of a\nparticular treaty provision, the ratification record may be conclusive. If, for\nexample, the ratification record unequivocally shows that the President pre\xc2\xad\nsented the treaty to the Senate based on specific, official representations\nregarding the meaning of an ambiguous provision, that the Senate regarded that\n22 See, e.g.. United States v. Vogel Fertilizer Co., 455 U.S. 16, 30 (1982) (court necessarily attaches great\nw eight to agency representations to Congress when the adm inistrators participated in drafting the statute and\ndirectly m ade known their views to C ongress); Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176,\n202-212 (1980) (statem ents by adm inistration w itnesses during hearings on patent infringem ent legislation\nstrongly reinforce the c o u rt\xe2\x80\x99s conclusion that C ongress intended to im m unize respondent\xe2\x80\x99s behavior from\npatent m isuse charges). In general, courts give \xe2\x80\x9cgreat w eight\xe2\x80\x9d in construing dom estic statutes to contem pora\xc2\xad\nneous constructions by the executive branch. See generally Udall v. Tollman, 380 U.S. 1,16 (1965); Red Lion\nBroadcasting Co. v. FCC, 395 U.S. 367, 381 (1969).\n23 S im ilarly, the w eight o f statem ents by senators confirm ed by the executive w ill depend, inter alia, on the\nform ality o f the confirm ation and the identity and position o f the person confirm ing the statem ent.\n24 See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. at 184 n. 10.\n\n37\n\n\x0cunderstanding as important to its consent, and that the Senate relied on the\nrepresentations made by the Executive Branch in approving the treaty (and thus\nin refraining from attaching a formal reservation setting forth the understand\xc2\xad\ning), we believe the President would, in effect, be estopped from taking a\ncontrary position in his subsequent interpretation of the treaty, just as he would\nbe bound by a formal reservation or understanding passed by the Senate to the\nsame effect. See generally United States v. Vogel Fertilizer Co., 455 U.S. at 31\n(refusing to uphold current Treasury Department interpretation in light of\nevidence that the Treasury Department proposed and presented the legislation\nto Congress on a different understanding). Obviously, a President could not\nnegotiate a treaty with other nations on the basis of one understanding of its\nimport, submit the treaty to the Senate on a wholly different understanding, and\nthen, in implementing the treaty, rely solely on the understanding he had\nreached with the other parties. Similarly, he could not reach a secret agreement\nwith the other party that substantially modifies the obligations and authorities\ncreated by the text of the treaty submitted to the Senate, and then seek to use the\nsecret agreement as a basis for actions inconsistent with the text of the treaty.\nSuch results would essentially eviscerate the Senate\xe2\x80\x99s constitutional advice and\nconsent role, because it would deprive the Senate of a fair opportunity to\ndetermine whether, or with what conditions, the treaty should become the\n\xe2\x80\x9csupreme Law of the Land.\xe2\x80\x9d Accordingly, in such extreme cases, we have little\ndoubt that, as a matter of domestic law, the courts would construe the treaty as\npresented to and accepted by the Senate, even if as a matter of international law\nthe treaty might have a different meaning.25\nC harles\n\nJ.\n\nC ooper\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n25 A lthough courts g enerally seek to c o n stru e treaties consistent w ith their international im port, on occasion\ncourts have adopted constructions o f particular treaties that conflict with the President\'s view o f the\ninternational obligations created by the treaty. See , e.g., Maiorano v. Baltimore & Ohio R.R., 213 U.S. 268\n(1909) (interpreting an 1871 treaty w ith Italy giving aliens access to courts of justice). M oreover. Congress\ncan enact dom estic legislation that is inconsistent w ith existing treaty obligations, and thus has the effect of\ntying the P resid e n t\'s hands dom estically, while leaving the international obligations intact. See generally\nMenominee Tribe o f Indians v. United States , 391 U.S. 404, 4 1 2 -4 1 3 (1968); Moser v. United States , 341\nU.S. 41, 45 (1951); Torres v INS, 6 0 2 F.2d 190, 195 (7th Cir. 1979). It would nnt be unprecedented,\ntherefore, fo r a court to construe a treaty more narrow ly \xe2\x80\x94 o r more broadly \xe2\x80\x94 as a m atter o f dom estic law\nthan the P resident construes the treaty as a m atter o f international law . As Professor Henkin has observed,\n\xe2\x80\x9c [i]t could happen . . . that Congress a n d the courts w ould in effect apply treaty provisions different from\nthose that bind the U nited States internationally \xe2\x80\x94 an o th er cost o f the separation o f pow ers.\xe2\x80\x9d H enkin at 167.\n\n38\n\n\x0c'


b'June 14, 1977\n\n77-37\n\nMEMORANDUM OPINION FOR THE\nDIRECTOR OF THE EXECUTIVE OFFICE\nFOR UNITED STATES ATTORNEYS\nRequest of a Federal Employee\xe2\x80\x94Appearance on\nBehalf of His Daughter in IRS Audit\n\nThis is in response to your request for our views as to whether Mr.\nA, an employee in the office of a United States Attorney, may appear\non behalf of his daughter in an Internal Revenue Service (IRS) office\naudit of her tax return. It appears that Mr. A prepared his daughter\xe2\x80\x99s\ntax return based on information she supplied to him.\nA Federal employee is prohibited by 18 U.S.C. \xc2\xa7 205(2) from acting\n\xe2\x80\x9cas agent or attorney\xe2\x80\x9d for anyone, otherwise than in the proper dis\xc2\xad\ncharge of his official duties, before any agency or court in connection\nwith any m atter in which the United States is a party or has a direct\nand substantial interest. This provision has not been construed to pro\xc2\xad\nhibit a Federal employee from assisting another person in the prepara\xc2\xad\ntion of a tax return, but it does generally prohibit a Federal employee\nfrom representing the taxpayer in subsequent administrative or judicial\nproceedings involving the tax return.\nHowever, 18 U.S.C. \xc2\xa7 205 contains an exception permitting\nem\xc2\xad\nployee to act as agent or attorney, with or without compensation, for\nhis or her parents, spouse, or child, except in matters in which he or\nshe has participated personally and substantially or are under his or her\nofficial responsibility. It does not appear that Mr. A participated as a\nGovernm ent employee in matters relating to his daughter\xe2\x80\x99s tax return.\nHe is a collecting agent after a civil or criminal judgment or fine has\nbeen imposed, but he would not appear to have any \xe2\x80\x9cofficial responsi\xc2\xad\nbility\xe2\x80\x9d within the meaning of 18 U.S.C. \xc2\xa7 202(b) for IRS audits or other\nadministrative proceedings relating to tax collection. Therefore, it is our\nopinion that Mr. A\xe2\x80\x99s representation of his daughter in the audit and\nrelated administrative proceedings is permitted by 18 U.S.C. \xc2\xa7 205.\nHowever, the statute and Departm ent o f Justice regulations require Mr.\nA to receive the approval of the U.S. Attorney before he appears on\nhis daughter\xe2\x80\x99s behalf. See 28 CFR 45.735-6(d).\n148\n\n\x0cIt is not apparent from the materials you sent to us whether Mr. A is\nemployed as an attorney in the U.S. Attorney\xe2\x80\x99s Office, so that the\npractice of law is his profession within the meaning of 28 C FR 45.7359(a). If so, his representation of his daughter would presumably consti\xc2\xad\ntute outside practice of law, requiring the approval of the Deputy\nAttorney General under 28 CFR 45.735-9(c).\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n149\n\n\x0c'


b'Assertion o f Executive Privilege Regarding White House\nCounsel\xe2\x80\x99s Office Documents\nExecutive privilege may properly be asserted with respect to certain White House Counsel\xe2\x80\x99s Office\ndocum ents that have been subpoenaed b y the Committee on Government Reform and Oversight\no f the House o f Representatives in connection with the Com mittee\xe2\x80\x99s investigation of the White\nHouse Travel O ffice matter.\n\nMay 23, 1996\n\nTHE PRESIDENT\nTH E W H ITE HOUSE\nMy D ear M r. President: You have requested my legal advice as to whether\nexecutive privilege may properly be asserted with respect to certain confidential\nWhite House Counsel\xe2\x80\x99s Office documents that are responsive to subpoenas issued\nby the Committee on Government Reform and Oversight of the House of Rep\xc2\xad\nresentatives. The subpoenas have been issued in connection with the Committee\xe2\x80\x99s\ninvestigation of the White House Travel Office matter.\nBy letter dated May 8, 1996, I advised you that, based on the circumstances\ndescribed in that letter,\nexecutive privilege may properly be asserted with respect to the\nentire set of White House Counsel\xe2\x80\x99s Office documents currently\nbeing withheld from the Committee, pending a final Presidential\ndecision on the matter. This would be a protective assertion of exec\xc2\xad\nutive privilege designed to ensure your ability to make a final deci\xc2\xad\nsion, after consultation with the Attorney General, as to which spe\xc2\xad\ncific documents are deserving of a conclusive claim of executive\nprivilege.\nP rotective A ssertion o f Executive P rivilege R egarding White House Counsel\xe2\x80\x99s Of\xc2\xad\nfice D ocum ents, 20 Op. O.L.C. 1, 1 (1996).\n\nThe Counsel to the President has now identified the specific White House Coun\xc2\xad\nsel\xe2\x80\x99s Office documents with respect to which he recommends that you assert exec\xc2\xad\nutive privilege. The documents are identified on an index of privileged documents\nattached to his memorandum to you dated May 23, 1996. His memorandum to\nyou of May 8, 1996 describes the efforts the White House has made to accommo\xc2\xad\ndate the Committee\xe2\x80\x99s information needs.\nThe Office of Legal Counsel of the Department of Justice has reviewed the\ndocuments for which assertion of executive privilege has been recommended and\nis satisfied that they fall within the scope of executive privilege. I concur in that\nassessment.\n2\n\n\x0cAssertion o f Executive Privilege Regarding White House Counsel\xe2\x80\x99s Office Documents\n\nThe documents are in three categories. Most of the documents are analytical\nmaterial or other attorney work-product prepared by the White House Counsel\xe2\x80\x99s\nOffice in response to the ongoing investigation by the Committee. A second cat\xc2\xad\negory consists of similar material prepared in connection with the ongoing crimi\xc2\xad\nnal investigation by Independent Counsel Kenneth Starr. Finally, a small number\nof documents are analytical documents that do not concern either the Travel Office\nmatter or these investigations, and which were prepared by the White House Coun\xc2\xad\nsel\xe2\x80\x99s Office in order to provide legal advice within the White House.\nThe Counsel to the President is appropriately concerned that the Committee\xe2\x80\x99s\ndemand raises significant separation of powers concerns and that compliance with\nit beyond the accommodations already reached with the Committee would com\xc2\xad\npromise the ability of his Office to advise and assist the President in connection\nwith the pending Committee and Independent Counsel investigations. It would\nalso have a chilling effect on the Office\xe2\x80\x99s discharge of its responsibilities in future\ncongressional investigations, and in all of its other areas of responsibility. I agree\nthat the ability of the White House Counsel\xe2\x80\x99s Office to serve the President would\nbe significantly impaired if the confidentiality of its communications and workproduct is not protected, especially where the confidential documents are prepared\nin order to assist the President and his staff in responding to an investigation\nby the entity seeking the documents. Impairing the ability of the Counsel\xe2\x80\x99s Office\nto perform its important functions for the President would in turn impair the ability\nof you and future Presidents to carry out your constitutional responsibilities.\nThe Supreme Court has expressly (and unanimously) recognized that the Con\xc2\xad\nstitution gives the President the power to protect the confidentiality of WTiite\nHouse communications. This power is rooted in the \xe2\x80\x98\xe2\x80\x98need for protection of com\xc2\xad\nmunications between high Government officials and those who advise and assist\nthem in the performance of their manifold duties.\xe2\x80\x9d United States v. Nixon, 418\nU.S. 683, 705 (1974). \xe2\x80\x9c A President and those who assist him must be free to\nexplore alternatives in the process of shaping policies and making decisions and\nto do so in a way many would be unwilling to express except privately.\xe2\x80\x9d Id.\nat 708. Executive privilege applies to these White House Counsel\xe2\x80\x99s Office docu\xc2\xad\nments because of their deliberative nature, and because they fall within the scope\nof the attomey-client privilege and the work-product doctrine, see Upjohn Co.\nv. United States, 449 U.S. 383 (1981); Hickman v. Taylor, 329 U.S. 495 (1947).\nBoth the attomey-client privilege and the work-product doctrine are subsumed\nunder executive privilege. See Response to Congressional Requests fo r Informa\xc2\xad\ntion Regarding D ecisions m ade Under the Independent Counsel Act, 10 Op.\nO.L.C. 68, 78 & n.17 (1986); Confidentiality o f the Attorney G eneral\xe2\x80\x99s Commu\xc2\xad\nnications in Counseling the President, 6 Op. O.L.C. 481, 490 & n.17, 494 &\nn.24 (1982).\nUnder controlling case law, in order to justify a demand for confidential White\nHouse documents, a committee is required to demonstrate that the information\n3\n\n\x0cOpinions o f the A ttorney General in Volume 20\n\nsought is \xe2\x80\x9c demonstrably critical to the responsible fulfillment of the Committee\xe2\x80\x99s\nfunctions.\xe2\x80\x9d Senate Select Committee on P residential Campaign Activities v. Nixon,\n498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). And those functions must be in\nfurtherance of legitimate legislative responsibilities of Congress. See McGrain v.\nDaugherty, 273 U.S. 135, 160 (1927) (Congress has oversight authority \xe2\x80\x9c to enable\nit efficiently to exercise a legislative function belonging to it under the Constitu\xc2\xad\ntion\xe2\x80\x9d ); B arenblatt v. U nited States, 360 U.S. 109, 111 (1959) (\xe2\x80\x9c Congress may\nonly investigate into those areas in which it may potentially legislate or appro\xc2\xad\npriate\xe2\x80\x9d ).\nThe confidential White House Counsel\xe2\x80\x99s Office documents for which privilege\nwould be asserted are not contemporaneous documents concerning the White\nHouse Travel Office matter being investigated by the Committee, or even docu\xc2\xad\nments generated as part of the White House review of that matter, but rather\nwere created in connection with other matters or the response of the White House\nto subsequent investigations of the Travel Office and other matters by the Com\xc2\xad\nmittee and the Independent Counsel. Whatever may be the extent of Congress\xe2\x80\x99s\nauthority to conduct oversight of the executive branch\xe2\x80\x99s response to oversight\xe2\x80\x94\na question that must be viewed as unresolved as a matter of law in light of the\nrequirement that there be a nexus to Congress\xe2\x80\x99s legislative authority \xe2\x80\x94 it is clear\nthat congressional needs for information in that context will weigh substantially\nless in the constitutional balancing than a specific need in connection with the\nconsideration of legislation. As for documents concerning the White House re\xc2\xad\nsponse to an ongoing criminal investigation by an Independent Counsel, we can\nidentify little, if any, legitimate legislative need for such information. In sum,\nbased on the Office of Legal Counsel\xe2\x80\x99s review of the documents for which asser\xc2\xad\ntion of executive privilege has been requested, and conducting the balancing re\xc2\xad\nquired by the case law, see Senate Select Committee, 498 F.2d at 729-30; United\nStates v. Nixon, 418 U.S. at 706-07, I do not believe that access to these docu\xc2\xad\nments would be held by the courts to be \xe2\x80\x9c demonstrably critical to the responsible\nfulfillment of the Committee\xe2\x80\x99s functions.\xe2\x80\x9d Senate Select Committee, 498 F.2d at\n731.\nIn conclusion, it is my legal judgment that executive privilege may properly\nbe asserted in response to the Committee\xe2\x80\x99s subpoenas.\nSincerely,\nJANET RENO\nAttorney General\n\n4\n\n\x0c'


b'(Slip Opinion)\n\nProtective Assertion of Executive Privilege\nOver Unredacted Mueller Report and\nRelated Investigative Files\nThe President may make a preliminary, protective assertion of executive privilege over\nthe entirety of the materials subpoenaed by the Committee on the Judiciary of the\nHouse of Representatives relating to Special Counsel Mueller\xe2\x80\x99s investigation, to\nensure the President\xe2\x80\x99s ability to make a final assertion, if necessary, over some or all\nof the subpoenaed material.\nMay 8, 2019\n\nTHE PRESIDENT\nTHE WHITE HOUSE\n\nDear Mr. President:\nI am writing to request that you make a protective assertion of executive privilege with respect to Department of Justice documents recently\nsubpoenaed by the Committee on the Judiciary of the House of Representatives. In cases like this where a committee has declined to grant\nsufficient time to conduct a full review, the President may make a protective assertion of privilege to protect the interests of the Executive Branch\npending a final determination about whether to assert privilege. See\nProtective Assertion of Executive Privilege Regarding White House\nCounsel\xe2\x80\x99s Office Documents, 20 Op. O.L.C. 1 (1996) (Reno, Att\xe2\x80\x99y Gen.).\nThe Committee has demanded that I produce the \xe2\x80\x9ccomplete and unredacted version\xe2\x80\x9d of the report submitted to me on March 22, 2019 by\nSpecial Counsel Robert S. Mueller, III, regarding his investigation of\nRussian interference in the 2016 presidential election. The Committee\nalso seeks \xe2\x80\x9c[a]ll documents referenced in the Report\xe2\x80\x9d and \xe2\x80\x9c[a]ll documents obtained and investigative materials created by the Special Counsel\xe2\x80\x99s Office.\xe2\x80\x9d The Committee therefore demands all of the Special Counsel\xe2\x80\x99s investigative files, which consist of millions of pages of classified\nand unclassified documents bearing upon more than two dozen criminal\ncases and investigations, many of which are ongoing. These materials\ninclude law enforcement information, information about sensitive intelligence sources and methods, and grand-jury information that the Department is prohibited from disclosing by law.\nConsistent with paragraph 5 of President Reagan\xe2\x80\x99s 1982 memorandum\nabout assertions of executive privilege, the Department requested that the\n1\n\n\x0c43 Op. O.L.C. __ (May 8, 2019)\n\nChairman of the Committee hold the subpoena in abeyance and delay any\nvote recommending that the House of Representatives approve a resolution finding me in contempt of Congress for failing to comply with the\nsubpoena, pending a final presidential decision on whether to invoke\nexecutive privilege. See Memorandum for the Heads of Executive Departments and Agencies, Re: Procedures Governing Responses to Congressional Requests for Information at 2 (Nov. 4, 1982). The Department\nmade this request because, although the subpoenaed materials assuredly\ninclude categories of information within the scope of executive privilege,\nthe Committee\xe2\x80\x99s abrupt resort to a contempt vote\xe2\x80\x94notwithstanding ongoing negotiations about appropriate accommodations\xe2\x80\x94has not allowed\nsufficient time for you to consider fully whether to make a conclusive\nassertion of executive privilege. The Chairman, however, has indicated\nthat he intends to proceed with the markup session scheduled at 10:00\na.m. today on a resolution recommending a finding of contempt against\nme for failing to produce the requested materials.\nIn these circumstances, you may properly assert executive privilege\nwith respect to the entirety of the Department of Justice materials that\nthe Committee has demanded, pending a final decision on the matter. As\nwith President Clinton\xe2\x80\x99s assertion in 1996, you would be making only a\npreliminary, protective assertion of executive privilege designed to\nensure your ability to make a final assertion, if necessary, over some or\nall of the subpoenaed materials. See Protective Assertion of Executive\nPrivilege, 20 Op. O.L.C. at 1. As the Attorney General and head of the\nDepartment of Justice, I hereby respectfully request that you do so.\nWILLIAM P. BARR\nAttorney General\n\n2\n\n\x0c'