b'Legislative Proposal to Nullify Criminal Convictions\nObtained Under the Ethics in Government Act\nA proposed bill would have the effect of nullifying all crim inal convictions obtained under the\nEthics in Governm ent Act since that Act was passed in 1978. Under the Pardon Clause o f the\nConstitution, U.S. Const, art. II, \xc2\xa7 2, cl. 1, the President has broad power to take action to\nrelieve individuals who have violated federal laws. By contrast, the Constitution gives C on\xc2\xad\ngress no authority to legislate a pardon for any particular individual or class o f individuals.\nTherefore, the proposed bill exceeds Congress\xe2\x80\x99 power to legislate and would be an unconsti\xc2\xad\ntutional infringem ent on the President\xe2\x80\x99s pardon power.\n\nJune 3, 1986\nM\n\nem orandum\n\nO f f ic e\n\nof\n\nO\n\np in io n t o t h e\n\nL e g is l a t iv e\n\nand\n\nA s s is t a n t A t t o r n e y G e n e r a l ,\nIn t e r g o v e r n m e n t a l A f f a ir s\n\nWe have reviewed the provisions of S. 2214, \xe2\x80\x9cA bill to clarify that a civil\npenalty is the exclusive penalty for violations of the ethics in government act.\xe2\x80\x9d\nWe defer to other components of the Department on the desirability as a policy\nmatter of making civil penalties the exclusive remedy for enforcing the provi\xc2\xad\nsions of the Ethics Act. However, we have serious objections to the provision\nof the bill that purports to make it effective \xe2\x80\x9con the date of enactment of the\nEthics in Government Act.\xe2\x80\x9d We understand that this provision is intended by\nthe sponsors of S. 2214 to have the effect, inter alia, of nullifying all criminal\nconvictions under the Act since its passage in 1978.1We believe that Congress\nhas no authority to enact such a measure, and in addition, that it would be an\nunconstitutional intrusion on the President\xe2\x80\x99s constitutional power to pardon.\nUnder Article II of the Constitution, the President has the power to \xe2\x80\x9cgrant\nReprieves and Pardons for Offenses against the United States, except in Cases\nof Impeachment.\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 2, cl. 1. The President\xe2\x80\x99s constitutional\npardon power is derived from, and has been interpreted in light of, the English\nCrown authority to alter and reduce punishments as it existed in 1787. See\ngenerally Schick v. Reed, 419 U.S. 256 (1974). The Presidential pardon power\nis multifaceted, and embraces a wide variety of acts that may relieve individu\xc2\xad\n1 We assum e that the b ill\xe2\x80\x99s \xe2\x80\x9ceffective date" provision is also intended to effect the dism issal o f all pending\ncrim inal investigations and prosecutions, as well as to estop any future ones. O ur analysis here focuses only\non the attem pted legislative exoneration o f persons convicted by judicial process o f a crim e under the Act.\nO f course, if S. 2214 is intended to apply only where no governm ent prosecution has been com m enced, and\nnot where an investigation o r prosecution has been initiated or a conviction obtained, as a policy m atter it\nwould raise a serious question o f disparate treatment.\n\n93\n\n\x0cals who have violated the law. A pardon may take the form of release from\nprison, remission of fines and forfeitures, commutation or alteration of a\nsentence, restoration of civil rights, dismissal of a prosecution, or a grant of\nimmunity from prosecution. It may be absolute or conditional, and extended to\na specific individual or to an entire class or community. It includes but is not\nlimited to the power to grant amnesty or immunity from prosecution.2\nBy contrast, the Constitution gives Congress no authority to legislate a\npardon for any particular individual or class of individuals. In the first case to\nbe decided involving the President\xe2\x80\x99s pardon power, Chief Justice Marshall\nexplained that a pardon is \xe2\x80\x9can act of grace, proceeding with the power entrusted\nwith the execution o f the laws, which exempts the individual, on whom it is\nbestowed, from the punishment the law inflicts for a crime he has committed.\xe2\x80\x9d\nUnited States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833) (emphasis supplied).\nBecause the President\xe2\x80\x99s pardon power flows directly from the Constitution, it is\nnot dependent on a legislative enactment, and cannot be infringed by Congress.\nSee Schick v. Reed, 419 U.S. at 267; United States v. Klein, 80 U.S. (13 Wall.)\n128, 148 (1872).3 Although there is some support in the case law and historical\nprecedent for congressional power in certain limited circumstances to effect the\nsame result that would flow from an exercise of the President\xe2\x80\x99s pardon power,\nthese circumstances are limited to those involving prospective grants of am\xc2\xad\nnesty or immunity, or restoration of civil rights, to persons who have not yet\nbeen subjected to prosecution by the executive.4 In no case we have found has\nCongress been held to have the power through self-executing legislation to\ngrant relief in the form of remission of a prison sentence or monetary fine to\nindividuals who have been convicted of violating a criminal statute.5\nWe know of only one previous occasion on which Congress has even\nattempted to legislate the release of convicted individuals. In S. 1145, a bill\nintroduced in the 94th Congress to provide amnesty to persons who failed to\nregister for the draft, included a provision directing the release from prison of\n2 T here has been considerable discussion o f and confusion over the difference betw een pardon and amnesty.\n\nSee , e.g.. Freem an, A Historical Justification and Legal Basis fo r Amnesty Today, 1971 Ariz. St. U. L.J. 515,\n5 2 4 -5 2 7 (1971). As a general matter, am nesty is understood as referring only to preprosecution relief\nextended to w hole classes o r communities. The relief available through the President\xe2\x80\x99s pardon pow er may o f\ncourse include this anticipatory immunity o r forgiveness, but is not so limited. See United States v. Klein , 80\nU .S. (13 W all.) 128 (1872) (President\'s p o w er to offer am nesty to form er rebels); 20 Op. Att*y Gen. 330\n(1892) (P re sid e n t\'s pow er to extend gen eral am nesty to persons residing in Utah who had been guilty of\npolygam y).\n3 C ongress has been held to have the p o w er to enact law s em pow ering executive officers other than the\nP resident (though responsible to him) to rem it fines o r penalties incurred for violations o f the law. See The\nLaura, 114 U .S. 411 (1885).\n4 F o r exam ple, in the post-C ivil War p e rio d Congress enacted several pieces o f legislation restoring civil\nrights to fo rm er rebels. Indeed, its pow er to take such action is specifically recognized in the Fourteenth\nA m endm ent. See U .S. C onst, amend. X IV , \xc2\xa7 3. In Brown v. Walker, 161 U.S. 593 (1896), the Suprem e Court\nupheld a statute requiring witnesses subpoenaed in connection with Interstate Com m erce Commission\nproceedings to testify in return for a g ra n t o f absolute im m unity from any subsequent prosecution. See\nBurdick v. United States , 236 U.S. 79, 9 4 (1915), describing the \xe2\x80\x9csubstantial\xe2\x80\x99* differences betw een \xe2\x80\x9c legislative im m unity\xe2\x80\x9d and a Presidential pardon.\ns A num ber o f state courts have held th at acts o f general am nesty passed by the legislature are invalid as an\ninvasion o f th e e x ecu tiv e\xe2\x80\x99s pardoning p o w er. See 20 O p. A tt\xe2\x80\x99y Gen. 330 (1892) (collecting cases).\n\n94\n\n\x0cpersons convicted and serving a sentence for so failing to register. The Depart\xc2\xad\nment testified in opposition to this legislation, taking the position that Congress\nhas no power to effect release from prison, through legislation or otherwise,\nand that it may not encroach upon the President\xe2\x80\x99s power in this regard. See\nMemorandum from Mary C. Lawton, Deputy Assistant Attorney General,\nOffice of Legal Counsel to the Assistant Attorney General, Criminal Division\n(May 13, 1975).6\nIn sum, insofar as S. 2214 would have the effect of voiding or modifying in\nany respect criminal penalties imposed as a result of violations of the Ethics in\nGovernment Act, we believe it exceeds Congress\xe2\x80\x99 power to legislate, and\nwould be an unconstitutional intrusion on the President\xe2\x80\x99s pardon power.7\nD o u g l a s W. K m i e c\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n6 This O ffice also objected on the same grounds to provisions o f the bill granting im m unity to those who\nfailed to register and to deserters, requiring the dism issal o f all pending legal proceedings against such\npersons, and allow ing persons serving a term o f reconciliation service pursuant to President F o rd \'s C lem ency\nProclam ation 8313 to be released from such service. We did not object to provisions o f the bill that granted an\nhonorable discharge to all such persons who had served in the arm ed forces, and restoring the citizenship o f\nform er citizens who had renounced their citizenship because o f disapproval o f United States involvem ent in\nIndochina. W ith respect to the latter act, w e rem arked that <4[t]o restore the original citizenship o f such\npersons may be an act o f amnesty, but it is certainly not the constitutional equivalent o f an A rticle II\n\xe2\x80\x98pardon.\xe2\x80\x99\xe2\x80\x9d M emorandum from M ary C. Lawton, D eputy A ssistant A ttorney G eneral, Office o f Legal Counsel\nto the Assistant Attorney G eneral, Criminal Division (M ay 13, 1975). As authority for such a legislative\nenactm ent, we cited C ongress\' plenary pow er over citizenship and naturalization under A rticle I, \xc2\xa7 8, cl. 4 o f\nthe C onstitution.\n7 It could also be argued that such legislation would infringe the courts\' pow er to interpret and apply the\nlaw, and intrude upon the integrity o f the ju d icial process. Compare United States v. Klein , 80 U.S. at 146\xe2\x80\x9447\n(legislation attem pting to w ithdraw c o u rt\'s jurisdiction to consider the effect o f a Presidential pardon\ninfringes judicial pow er and violates principle o f separation o f pow ers) with Ex Parte Grossman, 267 U.S. 87\n(1925) (upholding a Presidential pardon o f a contem pt o f court against an argum ent that it violated separation\nof powers).\n\n95\n\n\x0c'


b"May 2 6 , 1978\n\n78-30\n\nMEMORANDUM OPINION FOR THE GENERAL\nCOUNSEL, CIVIL SERVICE COMMISSION\nPresidential Appointees\xe2\x80\x94 Removal Power\xe2\x80\x94 Civil\nService Reform Act\xe2\x80\x94 Constitutional Law (Article II,\n\xc2\xa7 2, cl. 2)\n\nThis is in response to your request for our opinion concerning whether the\nSpecial Counsel of the Merit Systems Protection Board (the Board), under the\nproposed Civil Service Reform Act of 1978, S. 2640, may be protected by\nstatute from removal by the President except for specific cause. We have\nconsidered this specific question, as well as related issues, and we conclude\nthat, under the framework contemplated by the present bill, the Congress may\nnot properly limit the grounds for removal of the Special Counsel by the\nPresident. Under the Constitution, such an officer must be removable at will by\nthe President.\nThe Special Counsel is to be appointed by the President, with the advice and\nconsent of the Senate, for a term of 7 years. \xc2\xa7 1204. The question of Congress\xe2\x80\x99\nauthority to delimit the President\xe2\x80\x99s power to remove an official so appointed\ndepends on the official\xe2\x80\x99s functions. Wiener v. United States, 357, U.S. 349,\n353 (1958); Humphrey's Executor v. United States, 295 U.S. 602, 631 (1935).\nThe functions of the Special Counsel are set forth in both the draft bill, see\n\xc2\xa7 1206, and the reorganization plan which divides the functions of the Civil\nService Commission between two agencies, the Office of Personnel Manage\xc2\xad\nment and the Board. The primary duties of the Special Counsel will be: (I) to\nreceive and investigate allegations of prohibited practices specified in \xc2\xa7 2302(b)\nand \xc2\xa7 1206(0(1); and (2) to initiate, and prosecute before the Board, cases\ninvolving prohibited practices.\nIn our opinion, the Special Counsel\xe2\x80\x99s functions are executive in character.\nEven though the Special Counsel will present cases only to the Board, his or her\nrole in investigating and prosecuting prohibited practices is much the same as\nthat of a U.S. Attorney or other Federal prosecutors.. His duties are directed at\nthe enforcement of the laws, a function that the Constitution entrusts to the\n\n120\n\n\x0cexecutive branch. See, Buckley v. Valeo, 424 U.S. 1, 138 (1976); Springer v.\nPhilippine Islands, 277 U.S. 189, 202 (1928).\nBecause the Special Counsel will be performing largely executive functions,\nthe Congress may not restrict the President\xe2\x80\x99s power to remove him. While there\nare no judicial decisions dealing with an official such as the Special Counsel,\nthe principle of Myers v. United States, 272 U.S. 52 (1926), applies. That\ndecision, even though subsequently delimited to apply only to \xe2\x80\x9c purely\nexecutive officers,\xe2\x80\x9d Humphrey\xe2\x80\x99s Executor v. United States, supra, at 627-28,\nstill stands for the proposition that officials exercising primarily executive\nfunctions must be removable at the discretion of the President. The decision in\nMorgan v. Tennessee Valley Authority, 115 F. (2d) 990, 993-94 (6th Cir. 1940)\nthat Humphrey's Executor did not apply to an agency that exercised \xe2\x80\x9c predominantly\nan executive or administrative function,\xe2\x80\x9d further supports this position.\nWe recognize that the Special Counsel is in a somewhat different position\nthan most officials performing executive functions. First, as \xe2\x80\x9c Special Counsel\nof the Merit Systems Protection Board,\xe2\x80\x9d \xc2\xa7 1204, he is affiliated with a\nquasi-judicial body whose officials may be legitimately exempted from removal\nat the pleasure of the President. The Special Counsel is to be appointed to a\ndefined term by the President with the advice and consent of the Senate, and he\nis to perform his vested responsibilities without any direction from the Board.\nThis statutory scheme is modeled on the statute provided for the General\nCounsel of the National Labor Relations Board (NLRB). 29 U.S.C. \xc2\xa7 153(d),\nand the purposes here are the same as those underlying that statute\xe2\x80\x94 i.e., to\ngive the Special or General Counsel independence to investigate and prosecute\ncomplaints of prohibited practices. See H. Rept. No. 510, 80th Cong., 1st sess.,\n37 (1947), discussing the status of the NLRB General Counsel. The Special\nCounsel has a status independent of and apart from the Board.1 By virtue of this\nstatus, he is divorced from the Board\xe2\x80\x99s quasi-judicial functions; he will not\nparticipate in any adjudicatory decisions; nor is he intended to serve the Board,\nany more than any other prosecutor, in making those decisions. It is only the\nquasi-judicial or quasi-legislative nature of an official\xe2\x80\x99s duties that justify a\nmeasure of independence from Presidential control ( Wiener v. United States,\nsupra, at 353; Humphrey\xe2\x80\x99s Executor v. United States, supra, at 629-30). We\nbelieve that the Special Counsel\xe2\x80\x99s affiliation with a quasi-judicial body does not\njustify a status independent of the President.\nFurther, because the Special Counsel will be performing functions similar to\nthose performed by \xe2\x80\x9c prosecuting\xe2\x80\x9d attorneys in other independent agencies, he\nmay be granted the same measure of independence. For example, the\nappointment and supervision of those employed by the Federal Trade Commis\xc2\xad\nsion lies with the Chairman of that Commission, Reorganization Plan No. 8 of\n\n'Indeed, the Special Counsel will be even more independent of the Board than the General\nCounsel is with respect to the NLRB. Unlike the statute pertaining to the NLRB General Counsel.\n29 U .S .C . \xc2\xa7 153(d), there is no provision in the bill or the reorganization plan that expressly\nprovides that the Board may assign functions or duties to the Special Counsel.\n\n121\n\n\x0c1950, \xc2\xa7 1(a), 15 F.R. 3175, 64 Stat. 1264, May 24, 1950, and presumably\nrestrictions on the President\xe2\x80\x99s power of removal flow from this provision, the\nstatus of the FTC, and the decision in Humphrey\xe2\x80\x99s Executor v. United States,\nsupra. However, these attorneys are appointed and supervised by the Chairman\nand they partake in the FTC\xe2\x80\x99s quasi-judicial and quasi-legislative functions.\nEven if they perform some executive functions\xe2\x80\x94 i.e.. investigation or\nprosecution\xe2\x80\x94 they do so \xe2\x80\x9c in the discharge and effectuation of [the FTC\xe2\x80\x99s]\nquasi-legislative or quasi-judicial powers.\xe2\x80\x9d Humphrey\xe2\x80\x99s Executor v. United\nStates, supra, at 623. The Special Counsel does not operate in this context. He\nis independent of the quasi-judicial body and bears the same relation to that\nbody as Federal prosecutors bear to the Federal courts. While he will prosecute\ncases before the Board, he does not partake in any way in the quasi-judicial\nprocess.2\nWe believe that the Congress may not condition the President\xe2\x80\x99s power to\nremove the Special Counsel. The decisions in Humphrey\xe2\x80\x99s Executor and Weiner\ndo not extend to an officer appointed by the President with the advice and\nconsent of the Senate, who performs predominantly executive functions and\nwho, by reason of the statutory scheme, is independent of the quasi-judicial\nprocess.\nLarry\n\na\n\n. H\n\nammond\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n2T here is an additional Special C ounsel\xe2\x80\x99s function that is purely executive in nature. Sections\n1206(h)(2) and (i) specify that the Special Counsel is em pow ered to investigate allegations o f\nprohibited personnel practices by Presidential appointees. W hen he finds sufficient evidence to\njustify disciplinary action he should report the m atter directly to the President. While this may not\nbe a m ajor part o f his duties, it is one o f his most im portant responsibilities. It is also one that is\nunquestionably executive in nature, involving no nexus with the quasi-judicial functions performed\nby the Board.\n\n122\n\n\x0c"


b'Office of Government Ethics Jurisdiction\nOver the Smithsonian Institution\nThe authority of the Office of Government Ethics to administer the Executive Branch ethics program\nunder the Ethics in Government Act of 1978 and other statutes does not extend to the Smithsonian\nInstitution or its personnel.\n\nFebruary 29, 2008\n\nMEMORANDUM OPINION FOR THE DIRECTOR\nOFFICE OF GOVERNMENT ETHICS\nThe Ethics in Government Act of 1978 (\xe2\x80\x9cEIGA\xe2\x80\x9d), Pub. L. No. 95-521, 92 Stat.\n1824 (codified as amended at 5 U.S.C. app., EIGA \xc2\xa7\xc2\xa7 101\xe2\x80\x93111, 401\xe2\x80\x93408, 501\xe2\x80\x93\n505 (2000 & Supp. V 2005)), established the Office of Government Ethics\n(\xe2\x80\x9cOGE\xe2\x80\x9d) and charged it with developing and implementing ethics policies for the\nExecutive Branch. You have asked whether the Smithsonian Institution and its\npersonnel (the \xe2\x80\x9cSmithsonian\xe2\x80\x9d or \xe2\x80\x9cInstitution\xe2\x80\x9d) are subject to OGE\xe2\x80\x99s authority to\nadminister the Executive Branch ethics program. 1 We conclude that they are not.\nI.\nWith limited exceptions not applicable here, OGE\xe2\x80\x99s jurisdiction does not extend to an entity outside the Executive Branch. The text and structure of EIGA\nunmistakably support this conclusion.\nEIGA clearly indicates that the Executive Branch is the focus of OGE\xe2\x80\x99s jurisdiction. EIGA establishes a tripartite structure for the federal government\xe2\x80\x99s ethics\nprogram that tracks the Constitution\xe2\x80\x99s three-branch structure. Title I of EIGA,\nwhich governs financial disclosure requirements for federal officials and employees, creates a separate \xe2\x80\x9csupervising ethics office\xe2\x80\x9d for each of the three branches. It\nspecifies that OGE is the \xe2\x80\x9csupervising ethics office . . . for all executive branch\nofficers and employees,\xe2\x80\x9d 5 U.S.C. app., EIGA \xc2\xa7 109(18), and authorizes its\nDirector (along with certain agency officials) to administer financial disclosure\nrequirements for Executive Branch officials and employees, id. \xc2\xa7 111(1). EIGA\nprovides that the ethics committees in the Senate and House of Representatives\nperform those functions for members of Congress, \xe2\x80\x9cofficers and employees\xe2\x80\x9d of the\ntwo houses, and \xe2\x80\x9cemployees of the legislative branch,\xe2\x80\x9d id. \xc2\xa7 109(18)(A), (B); id.\n\xc2\xa7 111(2); and the Judicial Conference does so \xe2\x80\x9cfor judicial officers and judicial\n1\nSee Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel,\nfrom Robert I. Cusick, Director, Office of Government Ethics (Apr. 26, 2007) (\xe2\x80\x9cOGE Letter\xe2\x80\x9d). We also\nhave received the views of the Smithsonian Institution. See Letter for John P. Elwood, Deputy\nAssistant Attorney General, Office of Legal Counsel, from John E. Huerta, General Counsel,\nSmithsonian Institution (May 11, 2007) (\xe2\x80\x9cSmithsonian Letter\xe2\x80\x9d).\n\n56\n\n\x0cOffice of Government Ethics Jurisdiction Over the Smithsonian Institution\n\nemployees,\xe2\x80\x9d id. \xc2\xa7 109(18)(C); id. \xc2\xa7 111(3). Title V of EIGA, which imposes\nrestrictions on outside sources of income or employment by high-level federal\nemployees, distributes administrative and regulatory authority in the same manner;\nOGE is directed to issue rules and regulations to implement its provisions \xe2\x80\x9cwith\nrespect to officers and employees of the executive branch.\xe2\x80\x9d Id. \xc2\xa7 503(2).\nEIGA directs OGE to develop and implement ethics policies for the Executive\nBranch. Title IV of EIGA, which constitutes OGE\xe2\x80\x99s \xe2\x80\x9corganic law,\xe2\x80\x9d OGE Letter\nat 2, authorizes OGE\xe2\x80\x99s Director to \xe2\x80\x9cprovide . . . overall direction of executive\nbranch policies related to preventing conflicts of interest on the part of officers and\nemployees of any executive agency.\xe2\x80\x9d Id. \xc2\xa7 402(a). The Director\xe2\x80\x99s duties include,\namong other things, developing rules and regulations to address conflicts of\ninterest and ethics in the Executive Branch, id. \xc2\xa7 402(b)(1)\xe2\x80\x93(2), monitoring\nExecutive Branch compliance with financial disclosure and reporting requirements, id. \xc2\xa7 402(b)(3)\xe2\x80\x93(5), and ensuring that executive agencies develop and\nimplement appropriate ethics rules, id. \xc2\xa7 402(c)\xe2\x80\x93(f).\nOther authorities also direct OGE to oversee Executive Branch ethics programs.\nSections 7351 and 7353 of title 5 of the United States Code authorize OGE to\nimplement statutory restrictions on gifts to federal employees and gifts from federal\nemployees to their superiors by issuing regulations \xe2\x80\x9cfor all executive branch officers\nand employees.\xe2\x80\x9d 5 U.S.C. \xc2\xa7\xc2\xa7 7351(c), 7353(b), (d) (2000 & Supp. V 2005). And the\nPresident has delegated OGE authority under 5 U.S.C. \xc2\xa7 7301 (2000) to \xe2\x80\x9cprescribe\nregulations for the conduct of employees in the executive branch.\xe2\x80\x9d Exec. Order No.\n12731, \xc2\xa7 403, 3 C.F.R. 306, 310 (1990 Comp.). Thus, the authorities that created\nOGE and articulate its jurisdiction and responsibilities make clear that, with limited\nexceptions not implicated here, OGE supervises only entities and employees in the\n\xe2\x80\x9cexecutive branch.\xe2\x80\x9d 2\nThe term \xe2\x80\x9cexecutive branch\xe2\x80\x9d is defined for purposes of title I of EIGA as follows:\nFor the purposes of this title, the term . . . \xe2\x80\x9cexecutive branch\xe2\x80\x9d includes each Executive agency (as defined in section 105 of title 5,\nUnited States Code), other than the Government Accountability Office, and any other entity or administrative unit in the executive\nbranch . . . .\n\n2\nUnder 18 U.S.C. \xc2\xa7 208(b)(2) and (d)(2) (2000), OGE is authorized to issue regulations exempting\nemployees from a criminal conflict of interest statute that applies to \xe2\x80\x9can officer or employee of the\nexecutive branch of the United States Government, or of any independent agency of the United States,\na Federal Reserve bank director, officer, or employee, or an officer or employee of the District of\nColumbia, including a special Government employee.\xe2\x80\x9d Id. \xc2\xa7 208(a). You have not asked us to consider\nany issues regarding the application of section 208 to the Smithsonian or the extent of OGE\xe2\x80\x99s authority\nunder that provision. See OGE Letter at 2 n.1.\n\n57\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\n5 U.S.C. app., EIGA \xc2\xa7 109. OGE has adopted a similar definition in its regulations\nimplementing title IV:\nExecutive branch includes each executive agency as defined in 5\nU.S.C. 105 and any other entity or administrative unit in the executive branch. However, it does not include any agency, entity, office\nor commission that is defined by or referred to in 5 U.S.C. app.\n109(8)\xe2\x80\x93(11) of the Act as within the judicial or legislative branch.\n5 C.F.R. \xc2\xa7 2638.104 (2006); see also 5 U.S.C. app., EIGA \xc2\xa7 109(8)\xe2\x80\x93(11) (defining\nthe terms \xe2\x80\x9cjudicial employee,\xe2\x80\x9d \xe2\x80\x9cJudicial Conference,\xe2\x80\x9d \xe2\x80\x9cjudicial officer,\xe2\x80\x9d and\n\xe2\x80\x9clegislative branch\xe2\x80\x9d). We see no reason to believe that Congress intended that the\nterm would have another meaning under the other authorities providing OGE with\njurisdiction over \xe2\x80\x9cexecutive branch\xe2\x80\x9d officers and employees. See Enfield ex rel.\nEnfield v. A.B. Chance Co., 228 F.3d 1245, 1251 (10th Cir. 2000) (\xe2\x80\x9cIt is a well\nrecognized rule of statutory construction used to determine legislative intent that\nordinarily identical words or terms used in different statutes on a specific subject\nare interpreted to have the same meaning in the absence of anything in the context\nto indicate that a different meaning was intended.\xe2\x80\x9d) (quotation marks omitted).\nThe definition of \xe2\x80\x9cexecutive branch\xe2\x80\x9d set forth in title I provides that the term\n\xe2\x80\x9cincludes each Executive agency as defined in 5 U.S.C. 105.\xe2\x80\x9d Section 105\xe2\x80\x99s\ndefinition is also referenced in title IV of the Act. See 5 U.S.C. app., EIGA\n\xc2\xa7 402(a) (stating that the Director shall provide \xe2\x80\x9coverall direction of executive\nbranch policies\xe2\x80\x9d related to preventing conflicts of interest on the part of \xe2\x80\x9cofficers\nand employees of any executive agency, as defined in section 105 of title 5, United\nStates Code\xe2\x80\x9d); cf. Exec. Order No. 12731, \xc2\xa7 503(c), 3 C.F.R. at 310 (\xe2\x80\x9c\xe2\x80\x98Agency\xe2\x80\x99\nmeans any executive agency as defined in 5 U.S.C. 105 . . . .\xe2\x80\x9d). 3 The clear focus of\nsection 105 is on Executive Branch entities: \xe2\x80\x9can Executive department, a Government corporation, and an independent establishment.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 105 (2000). All\n\xe2\x80\x9cExecutive department[s]\xe2\x80\x9d are within the Executive Branch. See 5 U.S.C. \xc2\xa7 101\n(2006); see also Haddon v. Walters, 43 F.3d 1488, 1490 (D.C. Cir. 1995) (referencing the \xe2\x80\x9cexclusive list of Executive departments\xe2\x80\x9d in 5 U.S.C. \xc2\xa7 101). Similarly,\nthe term \xe2\x80\x9cindependent establishment\xe2\x80\x9d is defined as \xe2\x80\x9c(1) an establishment in the\nexecutive branch,\xe2\x80\x9d and \xe2\x80\x9c(2) the Government Accountability Office.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 104 (2006). The definitions in both title I of EIGA and the regulations implementing title IV, however, explicitly exclude from their reach the Government\nAccountability Office, which is a Legislative Branch agency, see Bowsher v.\nSynar, 478 U.S. 714, 730\xe2\x80\x9332 (1986). While the definition of \xe2\x80\x9cGovernment\n3\nThe term \xe2\x80\x9cExecutive agency\xe2\x80\x9d itself plainly suggests agencies within the Executive Branch.\nAlthough the term does encompass at least one agency in the Legislative Branch\xe2\x80\x94the Government\nAccountability Office\xe2\x80\x94it does so only by virtue of an explicit statutory provision, 5 U.S.C. \xc2\xa7 104(2)\n(Supp. V 2005), that tends to underscore that GAO would not otherwise come within the scope of the\nterm.\n\n58\n\n\x0cOffice of Government Ethics Jurisdiction Over the Smithsonian Institution\n\ncorporation\xe2\x80\x9d in 5 U.S.C. \xc2\xa7 103 (2000) is not necessarily limited to Executive\nBranch entities, this Office has opined that the Smithsonian is not a \xe2\x80\x9cGovernment\ncorporation\xe2\x80\x9d for purposes of a similar definition of \xe2\x80\x9cagency\xe2\x80\x9d under the Freedom of\nInformation Act (\xe2\x80\x9cFOIA\xe2\x80\x9d), 5 U.S.C. \xc2\xa7 552(f)(1) (2000). Memorandum for Peter\nPowers, General Counsel, Smithsonian Institution, from Leon Ulman, Deputy\nAssistant Attorney General, Office of Legal Counsel, Re: Coverage of the\nSmithsonian Institution by Certain Federal Statutes at 10 (Feb. 19, 1976) (\xe2\x80\x9cUlman\nMemorandum\xe2\x80\x9d); see also Status of National Veterans Business Development\nCorporation, 28 Op. O.L.C. 70, 73 n.4 (2004) (explaining that \xe2\x80\x9cthe understanding\nof [\xe2\x80\x9cGovernment corporation\xe2\x80\x9d and \xe2\x80\x9cGovernment controlled corporation\xe2\x80\x9d] reflected\nin the FOIA cases is . . . relevant\xe2\x80\x9d to the definition of those terms in 5 U.S.C.\n\xc2\xa7 103); Rivera v. Heyman, 982 F. Supp. 932, 938 (S.D.N.Y. 1997) (holding that\nthe Smithsonian is not a government corporation for purposes of 5 U.S.C. \xc2\xa7 103),\nrev\xe2\x80\x99d in part on other grounds, 157 F.3d 101 (2d Cir. 1998); cf. Dong v. Smithsonian Inst., 125 F.3d 877, 879 (D.C. Cir. 1997) (stating that there is \xe2\x80\x9cmuch force\xe2\x80\x9d to\nthe Smithsonian\xe2\x80\x99s claim that it is not a \xe2\x80\x9cGovernment controlled corporation\xe2\x80\x9d but\nfinding it unnecessary to resolve the issue).\nMoreover, the phrase \xe2\x80\x9cexecutive agency as defined in 5 U.S.C. 105\xe2\x80\x9d in section\n109 is followed by the catch-all phrase \xe2\x80\x9cany other entity or administrative unit in\nthe executive branch,\xe2\x80\x9d confirming that Congress understood the term \xe2\x80\x9cExecutive\nagency\xe2\x80\x9d to be within that category. The D.C. Circuit applied this principle, which\nit termed \xe2\x80\x9creverse ejusdem generis,\xe2\x80\x9d in a similar context. Construing the definition\nof \xe2\x80\x9cagency\xe2\x80\x9d within the Privacy Act, 5 U.S.C. \xc2\xa7 552a (2000 & Supp. V 2005)\xe2\x80\x94\n\xe2\x80\x9cany executive department, military department, Government corporation,\nGovernment controlled corporation, or other establishment in the executive branch\nof the Government,\xe2\x80\x9d id. \xc2\xa7 552(f)(1) (2000)\xe2\x80\x94the court held that the phrase applied\nonly to establishments in the Executive Branch. Dong, 125 F.3d at 879\xe2\x80\x9380. The\ncourt reasoned, \xe2\x80\x9cCongress evidently viewed the four specified classes as examples\nof \xe2\x80\x98establishments in the executive branch,\xe2\x80\x99 so that an entity clearly outside the\nexecutive branch would not qualify even if it could otherwise be shoehorned into\nthe concept of a \xe2\x80\x98Government controlled corporation.\xe2\x80\x99\xe2\x80\x9d Id. at 879. This Office\nfound that argument compelling in construing the same definition in the Ulman\nMemorandum, where we stated that the argument \xe2\x80\x9clend[s] considerable credence\nto the contention that an authority must be within the Executive branch in order to\nbe covered by\xe2\x80\x9d the Privacy Act. Id. at 4\xe2\x80\x935.\nWe therefore conclude that, with limited exceptions not applicable here, OGE\xe2\x80\x99s\njurisdiction does not extend to an entity outside the Executive Branch, regardless\nof whether that entity otherwise meets the definition of \xe2\x80\x9cexecutive agency\xe2\x80\x9d found\nin 5 U.S.C. \xc2\xa7 105.\n\n59\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nII.\nThe question thus becomes whether the Smithsonian is within the Executive\nBranch of the government for purposes of EIGA. We conclude that it is not.\nThis Office previously has described the Smithsonian Institution as a \xe2\x80\x9cvery\nunusual entity,\xe2\x80\x9d a \xe2\x80\x9chistorical and legal anomaly,\xe2\x80\x9d Memorandum for the Attorney\nGeneral, from Theodore B. Olson, Assistant Attorney General, Office of Legal\nCounsel, Re: S. 653, a [sic] Act to Establish a Foundation for the Advancement of\nMilitary Medicine at 1 (May 23, 1983); that occupies an \xe2\x80\x9canomalous position in\nthe Government,\xe2\x80\x9d Memorandum for Drew S. Days, III, Assistant Attorney\nGeneral, Civil Rights Division, from Leon Ulman, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel at 2 (Mar. 20, 1978) (\xe2\x80\x9cStatus of GPO and\nSmithsonian\xe2\x80\x9d); \xe2\x80\x9csui generis,\xe2\x80\x9d Garnishment of Remuneration Paid to Federal Employees, 3 Op. O.L.C. 274, 277 (1979); and \xe2\x80\x9cunique unto its own terms,\xe2\x80\x9d Ulman\nMemorandum at 9; accord Memorandum for Fred F. Fielding, Counsel to the\nPresident, from Theodore B. Olson, Assistant Attorney General, Office of Legal\nCounsel, Re: President\xe2\x80\x99s Removal Power over Certain Appointees at 8 (Aug. 8,\n1983) (\xe2\x80\x9cPresident\xe2\x80\x99s Removal Power\xe2\x80\x9d). On occasion, we have suggested that the\nSmithsonian is a \xe2\x80\x9ccongressional agenc[y]\xe2\x80\x9d that operates \xe2\x80\x9cin aid of the legislative\nprocess.\xe2\x80\x9d See The Constitutional Separation of Powers Between the President and\nCongress, 20 Op. O.L.C. 124, 172 (1996) (stating that the Smithsonian \xe2\x80\x9cfit[s]\nunder a broad construction of that concept\xe2\x80\x9d); cf. Ulman Memorandum at 5 (\xe2\x80\x9c[I]t\ncould be argued that the Smithsonian is . . . an arm of the Congress itself . . . .\xe2\x80\x9d).\nOthers have classified it as a creature of the government of the District of Columbia. See, e.g., David P. Currie, The Smithsonian, 70 U. Chi. L. Rev. 65, 67\xe2\x80\x9368 &\nn.14 (2003). Others have described the Smithsonian as \xe2\x80\x9ca private institution under\nthe guardianship of the [federal] Government.\xe2\x80\x9d The Status of the Smithsonian\nInstitution under the Federal Property and Administrative Services Act, 12 Op.\nO.L.C. 122, 123 (1988) (quoting Chief Justice Taft as Chancellor of the Smithsonian\xe2\x80\x99s Board of Regents); see also Ulman Memorandum at 5 (\xe2\x80\x9cit could be argued\nthat the Smithsonian is . . . a body entirely separate from the government of the\nUnited States utilized to fulfill trust obligations\xe2\x80\x9d); Dong, 125 F.3d at 879 (suggesting that the Smithsonian might accurately be classified as \xe2\x80\x9ca testamentary trust\nres\xe2\x80\x9d). We have advised that \xe2\x80\x9c[t]he unique nature of the Smithsonian counsels\nreluctance toward a sweeping declaration of the Smithsonian\xe2\x80\x99s status within the\nfederal government. The wiser course, which we and others have followed, is to\nfocus upon the position of the Smithsonian within a precise statutory scheme.\xe2\x80\x9d\nStatus of the Smithsonian Institution, 12 Op. O.L.C. at 123\xe2\x80\x9324. We follow that\ncourse today.\nThe history of the Smithsonian suggests that Congress created the entity outside\nthe Executive Branch. In 1836, Congress enacted legislation to accept the bequest\nof James Smithson, a wealthy English scholar and scientist, who bequeathed all\nhis property to the United States to found \xe2\x80\x9can Establishment for the increase and\n\n60\n\n\x0cOffice of Government Ethics Jurisdiction Over the Smithsonian Institution\n\ndiffusion of knowledge among men.\xe2\x80\x9d Smithsonian Letter at 3 (quoting Smithson\nwill). See generally Act of July 1, 1836, ch. 252, 5 Stat. 64; The Smithsonian\nLegacy to the United States, 3 Op. Att\xe2\x80\x99y Gen. 383 (1838). In 1846, Congress\ncreated the Institution as an \xe2\x80\x9cestablishment\xe2\x80\x9d to \xe2\x80\x9chave perpetual succession,\xe2\x80\x9d see\nAct of Aug. 10, 1846, ch. 178, \xc2\xa7 1, 9 Stat. 102, 102, created a Board of Regents to\nconduct the business of the Institution consistent with the terms of the Smithson\nwill, id. \xc2\xa7 3, 9 Stat. at 103, and provided that the funds would be held in the\nTreasury to support the Institution, id. \xc2\xa7 2, 9 Stat. at 102.\nIt appears that Congress accepted the bequest and established the Institution\nunder its constitutional power to legislate for the District of Columbia, see U.S.\nConst. art. I, \xc2\xa7 8, cl. 17. 1 The Smithsonian Institution: Documents Relative to Its\nOrigin and History, 1835\xe2\x80\x931899, at 396 (William J. Rhees ed., 1901) (\xe2\x80\x9cThere was\nbut one power in the Constitution under which this charity could be administered,\nand that was as a local legislature for the District of Columbia.\xe2\x80\x9d) (statement of\nRep. Alexander D. Sims, Apr. 28, 1846); id. at 560 (\xe2\x80\x9c[T]he action of Congress in\naccepting the bequest, and agreeing to carry it into execution, was justified at the\ntime on the ground of its peculiar and complete jurisdiction over the District of\nColumbia.\xe2\x80\x9d) (quoting House Committee Report, Mar. 3, 1855). It seems unlikely\nthat Congress would have relied on this particular power\xe2\x80\x94to act as a local\nlegislature for the federal seat of government\xe2\x80\x94if it had intended to establish the\nSmithsonian within the Executive Branch of the national government. At the time\nof the Smithsonian\xe2\x80\x99s founding, many doubted that the Executive Branch had the\nconstitutional authority to administer such a charitable trust. Id. at 130 (suggesting\nthat the Executive lacked authority to \xe2\x80\x9cassum[e] and fulfill[] . . . the high and\nhonorable duties involved in the performance of the trust committed with it\xe2\x80\x9d)\n(quoting report of House select committee, Jan. 19, 1836); see also id. at 471\n(\xe2\x80\x9cThe Smithsonian Institution is not a department of the Government . . . .\xe2\x80\x9d)\n(statement of Sen. Jefferson Davis) (Jan. 30, 1851); Status of the Smithsonian\nInstitution, 12 Op. O.L.C. at 123 (quoting Chief Justice Taft\xe2\x80\x99s statement, made as\nChancellor of the Smithsonian\xe2\x80\x99s Board of Regents, that \xe2\x80\x9cthe Smithsonian Institution is not, and never had been considered a government bureau\xe2\x80\x9d).\nCongress\xe2\x80\x99s intent to establish the Smithsonian outside the Executive Branch is\nclear from its governing structure. The President appoints none of the Institution\xe2\x80\x99s\nseventeen board members. Fifteen of its members are either members of Congress\nor congressional appointees; its remaining members are the Chief Justice and the\nVice President. 20 U.S.C. \xc2\xa7\xc2\xa7 42\xe2\x80\x9343 (2000). As the D.C. Circuit has observed, \xe2\x80\x9cif\nthe Smithsonian were to wield executive power, the method by which its Regents\nare appointed would appear to violate the Constitution\xe2\x80\x99s separation of powers\nprinciples.\xe2\x80\x9d Dong, 125 F.3d at 879; Ulman Memorandum at 5 (\xe2\x80\x9c[I]f the Smithsonian were an \xe2\x80\x98executive agency\xe2\x80\x99 this mode of appointment might raise serious\nconstitutional questions, in the sense that the Congress cannot appoint executive\nofficers . . . .\xe2\x80\x9d). In addition, if the Board of Regents exercises a portion of the\nsovereign power of the United States, this manner of selection would violate the\n\n61\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nAppointments Clause, which vests in the President alone the power to appoint\n\xe2\x80\x9call . . . Officers of the United States\xe2\x80\x9d and does not permit Congress to appoint\neven \xe2\x80\x9cinferior Officers.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 2, cl. 2. It would also run afoul of\nthe Incompatibility Clause, which forbids members of Congress from holding \xe2\x80\x9cany\nOffice under the United States.\xe2\x80\x9d Id. art. I, \xc2\xa7 6, cl. 2.\nMoreover, the President exercises no control over the Smithsonian and has no\npower to remove its board members. See Dong, 125 F.3d at 879 (\xe2\x80\x9c[T]here is no\nevidence that the Secretary of the Smithsonian answers to the President . . . .\xe2\x80\x9d);\nUlman Memorandum at 5 (Smithsonian is \xe2\x80\x9cunder no executive power of control or\nappointment whatever\xe2\x80\x9d). Instead, Congress presumably retains the ability to\nremove those members it appoints. See generally President\xe2\x80\x99s Removal Power at 3\n(\xe2\x80\x9c[T]he fundamental principle applicable in removal cases is that, absent contrary\nindications, the power to appoint implies the power to remove.\xe2\x80\x9d). Indeed, Congress did remove and replace a board member at least once in the Smithsonian\xe2\x80\x99s\nhistory. See Act of Feb. 21, 1863, Pub. Res. No. 37-21, 12 Stat. 825 (removing and\nreplacing a Board member for \xe2\x80\x9cgiving aid and comfort to\xe2\x80\x9d the Confederacy). If the\nSmithsonian were in the Executive Branch, the President\xe2\x80\x99s inability to supervise\nits operation through removal of its Board members, and Congress\xe2\x80\x99s authority\nover the Institution, would implicate fundamental separation of powers principles.\nDong, 125 F.3d at 879; see generally Bowsher, 478 U.S. at 726, 730.\nFinally, structural and functional aspects of EIGA indicate that the Smithsonian\nis not part of the Executive Branch for purposes of the Act. As noted above, OGE\nis the supervising ethics office for the Executive Branch, while the Legislative and\nJudicial Branches have their own supervising ethics offices. Members of Congress\nand the Chief Justice fill seven of the positions on the Institution\xe2\x80\x99s Board of\nRegents. If the Smithsonian fell within OGE\xe2\x80\x99s jurisdiction, OGE would exercise\nauthority over members of Congress and the Chief Justice in their capacity as\nRegents. Moreover, OGE\xe2\x80\x99s ability to conduct its ethics programs under title IV of\nEIGA ultimately relies on the President\xe2\x80\x99s authority to supervise the Executive\nBranch. OGE\xe2\x80\x99s Director is required to monitor compliance with EIGA\xe2\x80\x99s requirements and may order an agency or its employees under OGE\xe2\x80\x99s jurisdiction to take\ncorrective action when necessary. 5 U.S.C. app., EIGA \xc2\xa7 402(b)(9). If the OGE\nDirector concludes that an agency has not adequately investigated or dealt with an\nethics violation, or if an agency head is himself the subject of an investigation, the\nDirector is to report directly to the President. Id. \xc2\xa7 402(f)(1)(B), (f)(2)(A)(ii)\xe2\x80\x93(iv),\n(f)(3)(B). Those notification provisions would make little sense if applied to\nentities and persons, such as the Smithsonian and its board members, over which\nthe President has no removal or disciplinary authority. See S. Rep. No. 100-392, at\n16 (1988) (report on reauthorization of OGE) (\xe2\x80\x9c[I]n the final analysis, the OGE\nDirector\xe2\x80\x99s enforcement authority lies with his or her powers of persuasion and\nability to appeal to the President and the public.\xe2\x80\x9d) (emphasis added).\n\n62\n\n\x0cOffice of Government Ethics Jurisdiction Over the Smithsonian Institution\n\nWhile the Smithsonian\xe2\x80\x99s place in the taxonomy of government may not be\nentirely clear, it is certainly not within the Executive Branch for purposes of\nEIGA. 4 See Status of GPO and Smithsonian at 2 (\xe2\x80\x9cThe Smithsonian Institution is\nnot within the Executive branch of the Government.\xe2\x80\x9d); Ulman Memorandum at 5\n(\xe2\x80\x9cIt is readily apparent that the Smithsonian, . . . under no executive power of\ncontrol or appointment whatever, is not within the Executive branch.\xe2\x80\x9d). Therefore,\nwe conclude that OGE\xe2\x80\x99s authority to administer the Executive Branch ethics\nprogram does not extend to the Smithsonian.\nIII.\nOur conclusion that OGE does not supervise the Smithsonian under EIGA is\nconsistent with longstanding practice. Before EIGA\xe2\x80\x99s passage, standards of ethical\nconduct for Executive Branch employees were governed by Executive Order\n11222, 3 C.F.R. 130 (1965 Supp.). That order outlined rules relating to conflicts of\ninterest, outside employment, receipt of gifts, and financial disclosure, to be\nadministered by agency heads and the Civil Service Commission. The Institution\nfirst adopted standards of conduct in October 1961. Smithsonian Letter at 2.\nShortly after issuance of the Executive Order, the Smithsonian issued revised\nstandards \xe2\x80\x9c[p]ursuant to and in conformity with sections 201 through 209 of the\nUnited States Code, Executive Order 11222,\xe2\x80\x9d and the regulations implementing\nthe order, \xe2\x80\x9cset[ting] forth minimum standards of conduct\xe2\x80\x9d for Smithsonian\nemployees. Smithsonian Institution Standards of Conduct, 31 Fed. Reg. 4512\n(Mar. 17, 1966). Those regulations were published annually in the Code of Federal\nRegulations. See 36 C.F.R. pt. 500 (1966\xe2\x80\x931983).\nShortly after Congress enacted EIGA, the Smithsonian sought OGE\xe2\x80\x99s opinion\nabout whether its board members and employees were subject to the financial\ndisclosure requirements of EIGA. OGE concluded that, because the Smithsonian\nwas not in the Executive Branch, EIGA\xe2\x80\x99s disclosure requirements for Executive\nBranch employees did not apply. Memorandum for Peter G. Powers, General\nCounsel, Smithsonian Institution, from Bernhardt K. Wruble, Director, Office of\n4\n\nWe do not address whether the Smithsonian might be deemed part of the federal government or an\nexecutive agency for other statutory purposes. In a 1988 opinion, for example, this Office concluded\nthat the Smithsonian was an \xe2\x80\x9cexecutive agency\xe2\x80\x9d for purposes of the Federal Property and Administrative Services Act (\xe2\x80\x9cProperty Act\xe2\x80\x9d). The Status of the Smithsonian Institution under the Federal\nProperty and Administrative Services Act, 12 Op. O.L.C. 122 (1988). That determination rested on the\nProperty Act\xe2\x80\x99s particular legislative history. Section 201(c) of the Property Act, which granted\nauthority to \xe2\x80\x9cany executive agency,\xe2\x80\x9d replaced an earlier statute that had explicitly covered the\nSmithsonian. Because the legislative history of section 201(c) indicated that it was meant to \xe2\x80\x9cpreserve\nall . . . existing authority,\xe2\x80\x9d we concluded that the Smithsonian was included within its reach. Id. at 126\n(quotation marks omitted). By contrast, there is no indication that the Executive Branch ethics program\nthat existed before EIGA was meant to encompass the Smithsonian. See Exec. Order No. 11222,\n3 C.F.R. 130 (1965 Supp.); see generally S. Rep. No. 95-170, at 28\xe2\x80\x9331 (1977) (describing the ethics\nprogram that existed before EIGA).\n\n63\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nGovernment Ethics, Re: Ethics in Government Act of 1978 (Apr. 13, 1979). OGE\ninformally reaffirmed that conclusion in 1990, see OGE Letter at 6, and continues\nto abide by it today. Thus, during the thirty years since enactment of EIGA, OGE\nhas not asserted jurisdiction over the Smithsonian or its personnel. OGE has not\nsought\xe2\x80\x94nor has the Smithsonian submitted\xe2\x80\x94an annual ethics program report, as\nrequired of executive agencies under 5 U.S.C. app., EIGA \xc2\xa7 402(e). Nor has the\nSmithsonian sought OGE\xe2\x80\x99s guidance in resolving ethics questions. See OGE Letter\nat 6\xe2\x80\x937; Smithsonian Letter at 1.\nFollowing the passage of EIGA, the Smithsonian continued to publish its own\nethics regulations, which did not refer to OGE or EIGA. The Institution ceased to\npublish the regulations in 1984. The Smithsonian\xe2\x80\x99s General Counsel explained:\nThe Smithsonian Institution is not a government agency as that term\nis traditionally used, but for a number of years the Standards of Conduct for Smithsonian employees . . . have been published in the format of government agency regulations as Part 500 . . . of Title 36 of\nthe Code of Federal Regulations. Part 500 . . . [is] obsolete and [is]\nbeing removed from Title 36 of the Code of Federal Regulations.\nHenceforth, in keeping with the Institution\xe2\x80\x99s status, current Standards of Conduct for Smithsonian employees . . . will be promulgated internally . . . .\n49 Fed. Reg. 9171 (Mar. 12, 1984); see also Smithsonian Institution, Smithsonian\nDirective 103, Smithsonian Institution Standards of Conduct (Feb. 13, 2006)\n(current ethics standards).\nSince then, Congress has amended EIGA and reauthorized OGE without modifying the definitions of \xe2\x80\x9cexecutive branch\xe2\x80\x9d or \xe2\x80\x9cexecutive agency,\xe2\x80\x9d and without\ntaking other action to bring the Smithsonian within OGE\xe2\x80\x99s jurisdiction. See, e.g.,\nAn Act to Reauthorize the Office of Government Ethics, Pub. L. No. 100-598, 102\nStat. 3031 (1988); Office of Government Ethics Authorization Act of 1996, Pub.\nL. No. 104-179, 110 Stat. 1566; see also An Act to Amend the Ethics in Government Act of 1978, Pub. L. No. 98-150, 97 Stat. 959 (1983). Congress\xe2\x80\x99s repeated\ndecisions not to amend the scope of OGE\xe2\x80\x99s jurisdiction provide further evidence\nthat Congress did not intend for the Institution to be under the supervision of OGE.\nSee Lorillard v. Pons, 434 U.S. 575, 580 (1978) (\xe2\x80\x9cCongress is presumed to be\naware of an administrative or judicial interpretation of a statute and to adopt that\ninterpretation when it re-enacts a statute without change . . . .\xe2\x80\x9d).\nJOHN P. ELWOOD\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n64\n\n\x0c'


b'Applicability of 18 U.S.C. \xc2\xa7 208 to National Gambling Impact\nStudy Commission\nT he N ational G am bling Im pact Study C om m ission is not an \xe2\x80\x9c independent\xe2\x80\x9d agency for purposes o f\na crim inal conflict o f interest statute, 18 U.S.C. \xc2\xa7 208.\n\nJanuary 26, 1999\nM\n\nem orandum\n\nG\n\nO\n\np in io n f o r t h e\n\neneral\n\nS\n\ne r v ic e s\n\nA\n\nA\n\nc t in g\n\nG\n\neneral\n\nC\n\nou nsel\n\nd m in is t r a t io n\n\nYou have asked whether a criminal conflict of interest statute, 18 U.S.C. \xc2\xa7208\n(1994), applies to the National Gambling Impact Study Commission (\xe2\x80\x9c Commis\xc2\xad\nsion\xe2\x80\x9d ).1 The Commission was established by the National Gambling Impact Study\nCommission Act (\xe2\x80\x9c Act\xe2\x80\x9d ), Pub. L. No. 104\xe2\x80\x94169, \xc2\xa73(a), 110 Stat. 1482 (1996)\n(codified as amended at 18 U.S.C. \xc2\xa7 1955 note (Supp. IV 1998)), in order to \xe2\x80\x9c con\xc2\xad\nduct a comprehensive legal and factual study of the social and economic impacts\nof gambling in the United States.\xe2\x80\x9d Id. \xc2\xa7 4(a)(1). The Commission consists o f nine\nmembers, of whom six are appointed by Congress (three by the Speaker of the\nHouse and three by the Majority Leader of the Senate), and three are appointed\nby the President. Id. \xc2\xa7 3(b)(l)(A)-(C). The appointing authorities are to consult\namong themselves to ensure that the Commission\xe2\x80\x99s membership reflects, \xe2\x80\x9c to the\nmaximum extent possible, fair and equitable representation of various points of\nview\xe2\x80\x9d with respect to the Commission\xe2\x80\x99s inquiry. Id. \xc2\xa7 3(b)(3). The congressional\nleadership also has the predominant role in selecting the Chair of the Commission.\nId. \xc2\xa7 3(b)(5)(A). The Commission\xe2\x80\x99s responsibilities are investigatory and advisory:\nnot later than two years after its first meeting, it must submit to the President,\nCongress, State governors and Native American tribal governments \xe2\x80\x9c a com\xc2\xad\nprehensive report of [its] findings and conclusions, together with any recommenda\xc2\xad\ntions\xe2\x80\x9d it may decide to make. Id. \xc2\xa74(b). The Commission has powers to hold\nhearings, issue subpoenas, secure information directly from Federal agencies,\nemploy personnel and contract with the Advisory Commission on Intergovern\xc2\xad\nmental Relations and the National Research Council. Id. \xc2\xa7\xc2\xa75, 6, 7. Sixty days\nafter submitting its final report, the Commission is to terminate. Id. \xc2\xa7 10.\nSection 208 was enacted in 1962 as part of a general revision of the conflict\nof interest laws. Pub. L. No. 87-849, \xc2\xa7 l(a), 76 Stat. 1119, 1124 (1962). In gen\xc2\xad\neral, 18 U.S.C. \xc2\xa7 208(a) provides that, subject to certain exceptions, \xe2\x80\x9c whoever,\nbeing an officer or employee of the executive branch of the United States Govern\xc2\xad\nment, or of any independent agency of the United States . . . participates person\xc2\xad\nally and substantially as a Government officer or employee, . . . [in a] particular\nmatter in which, to his knowledge, he . . . has a financial interest,\xe2\x80\x9d shall be\n1 S ee L e tte r for D aw n Johnsen, A cting A ssistant A ttorney G eneral, O ffice o f L eg al C ounsel, fro m Em ily C . H ew itt,\nG eneral C ounsel, G eneral S ervices A dm inistration (N ov. 7, 1997) ( \xe2\x80\x9c G SA L etter\xe2\x80\x9d )\n\n29\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nsubject to the criminal and civil penalties provided in \xc2\xa7216 of title 18. We have\npreviously concluded that the Commission is not within the executive branch.2\nThus, the sole substantive question to be considered here is whether the Commis\xc2\xad\nsion is an \xe2\x80\x9c independent\xe2\x80\x9d agency for purposes of \xc2\xa7 208.3\nWe conclude that it is not. Although the reach of \xc2\xa7208\xe2\x80\x99s reference to \xe2\x80\x9c inde\xc2\xad\npendent\xe2\x80\x9d agencies is not clear, and the legislative history is unhelpful (see Part\nI.A below), the Commission falls outside any likely construction of that section.\nAs we discuss in Part I.B below, the Commission does not resemble the agencies\nwhose \xe2\x80\x9c independence\xe2\x80\x9d from Presidential control was upheld by the Supreme\nCourt in two major cases that preceded the enactment of \xc2\xa7208 \xe2\x80\x94 Humphrey\xe2\x80\x99s\nExecutor v. United Statesk, 295 U.S. 602 (1935), and Wiener v. United States,\n357 U.S. 349 (1958). Nor, as we discuss in Part I.C below, do the Commissioners\nenjoy any form of protection from removal under the Act \xe2\x80\x94 and tenure protection\nis, for many purposes, a recognized test of \xe2\x80\x9c independence.\xe2\x80\x9d Finally, as we discuss\nin Part II below, there is no other affirmative evidence, whether in the text of\nthe Act or otherwise, that Congress intended the Commission to be regarded as\n\xe2\x80\x9c independent\xe2\x80\x9d for purposes of \xc2\xa7 208.\nI.\nSection 208 applies to \xe2\x80\x9c an officer or employee of the executive branch of the\nUnited States Government, or of any independent agency of the United States.\xe2\x80\x9d\n18 U.S.C. \xc2\xa7 208(a). There are at least two possible explanations for Congress\xe2\x80\x99s\ndecision to distinguish between the executive branch and \xe2\x80\x9c independent\xe2\x80\x9d agencies\nin this context.\nFirst, Congress may have intended \xc2\xa7 208 to reach all agencies of the Govern\xc2\xad\nment other than those within the legislative or judicial branch. \xe2\x80\x9c [Independent\xe2\x80\x9d\nagencies on this account would be those agencies that, under the Supreme Court\xe2\x80\x99s\nolder jurisprudence, might have been considered to be \xe2\x80\x9c hybrid\xe2\x80\x9d agencies, outside\nthe executive branch and performing \xe2\x80\x9c quasi-legislative\xe2\x80\x9d or \xe2\x80\x9c quasi-judicial\xe2\x80\x9d func\xc2\xad\ntions.4 Under present Supreme Court doctrine, such \xe2\x80\x9c independent\xe2\x80\x9d agencies are\n2 S ee L e tte r for M s. K ay C o le Jam es, C hairperson, N ational G am blin g Im pact Study C om m ission, from R ichard\nL. S h iffrin , D e p u ty A ssistant A ttorney G eneral, O ffice o f Legal C ou n sel (A ug. 13, 1997). In su p p o rt o f th at co n c lu \xc2\xad\nsio n , w e o b serv ed that th e m ajority of the C o m m issio n ers w ere congressio n ally appointed; that the congressional\nle ad ersh ip co n tro lle d the ch o ice o f the C om m ission\xe2\x80\x99s C hair; and th a t the C om m ission carried o u t only inform ationg ath erin g an d ad visory functions, w hich need n o t be perform ed b y the ex ecu tiv e branch. Id at 1 W e fu rther po in ted\no ut th a t \xe2\x80\x9c [u ]n d er th e D ep artm en t\xe2\x80\x99s precedents, w e regard such com m issio n s as o u tsid e the ex ecu tiv e branch. . . .\nIn d eed , even w h ere th e con g ressio n al leadership appoints less than a m ajority o f m em bers, a com m ission su ch as\n[this] m ay b e o u tsid e th e e x e cu tiv e branch.\xe2\x80\x9d Id. (citing precedents). W e rem ain persuaded that the C om m ission\nis o u tsid e th e e x e cu tiv e branch.\n3 T h e C o m m issio n is un d o u b te d ly an \xe2\x80\x9c ag e n cy \xe2\x80\x9d w ithin the \xe2\x80\x9c exp an siv e d efin itio n \xe2\x80\x9d o f 18 U S.C . \xc2\xa7 6 , w hich d efines\n\xe2\x80\x9c a g e n c y \xe2\x80\x9d fo r p u rp o ses o f title 18 to include \xe2\x80\x9c any .\n. c o m m issio n .\xe2\x80\x9d M em orandum O pinion f o r the C o m p tro ller\nG en era l o f th e U n ite d S ta te s\' C onflict o f Interest \xe2\x80\x94 18 U .S C. \xc2\xa7 2 0 7 \xe2\x80\x94 A pp lica b ility to the G en era l A cco u n tin g O ffice,\n3 O p . O L .C 433, 4 3 4 (19 7 9 ) ( \xe2\x80\x9c G A O O pinion\xe2\x80\x9d )\n4 T h is h as o ften b een ch a ra cte rized as the v iew that there is \xe2\x80\x9c a headless \xe2\x80\x98fourth b ran ch \xe2\x80\x99 o f g o vernm ent co n sistin g\no f in d e p e n d e n t agencies having significant d u tie s in both th e legislative and executive b ran ch es b ut residing not\nen tire ly w ith in e ith e r.\xe2\x80\x9d A m eron, In c v U S A r m y C orps o f E ngineers, 787 F 2 d 875, 886 (3d C ir. 1986). S e e also\n\n30\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7208 to National Gambling Impact Study Commission\n\nconsidered to be parts of the executive branch, although the President\xe2\x80\x99s powerto remove agency heads may be restricted in certain ways. See Morrison v. Olson,\n487 U.S. 654, 689-91 (1988) (interpreting cases on tenure protection for officials\nof independent agencies as hinging on whether protection impaired President\xe2\x80\x99s\nduty to execute the laws). Congress could have understood the term \xe2\x80\x9c independent\nagency\xe2\x80\x9d in 1962, however, to refer to agencies that we would now consider to\nbe part of the executive branch. On that understanding, \xc2\xa7 208 would apply to the\nexecutive branch, including agencies within the executive whose heads enjoy some\ndegree of protection from presidential removal, and that may have been viewed\nin 1962 as outside the executive branch;5 but it would not apply to the legislative\nor judicial branches.\nAlternatively, in referring to \xe2\x80\x9c independent\xe2\x80\x9d agencies, Congress may have been\nrecognizing the possibility that some agencies could be regarded as \xe2\x80\x9c inde\xc2\xad\npendent\xe2\x80\x9d even while being firmly located within a particular branch. On this\nreading, \xc2\xa7208 would reach not only \xe2\x80\x9c independent\xe2\x80\x9d agencies within the executive\nbranch but also any such agencies within the legislative or judicial branches.6\nThe pre-1962 case law had at least occasionally noted that in order to be \xe2\x80\x9c inde\xc2\xad\npendent,\xe2\x80\x9d an agency might need to be protected from congressional, as well as\nexecutive, control.7 Moreover, the cases had also suggested that an agency might\nbe, for at least some purposes, \xe2\x80\x9c independent,\xe2\x80\x9d while yet belonging to a particular\nbranch.8 Consequently, in applying \xc2\xa7208 to \xe2\x80\x9c independent\xe2\x80\x9d agencies, Congress\nid at 892 (B ecker, J , concurring in part); Federal T rade C o m m \xe2\x80\x98n v R ubero id C o , 343 U S 470, 487 (1952) (Jack \xc2\xad\nson, J , dissenting).\n5 Thus, w e have no doubt that agencies such as the Federal T ra d e C om m ission ( \xe2\x80\x9c F T C \xe2\x80\x9d ), w hich H u m p h rey \'s\nE xecu to r stated \xe2\x80\x9c cannot in any proper sense be characterized as an aim o r an eye o f the ex e cu tiv e ,\xe2\x80\x9d 295 U S.\nat 628, should now be regarded as part o f th e executive branch\n6 W e note that the C ourt seem s usually to have understood \xe2\x80\x9c independen t\xe2\x80\x9d agencies \xe2\x80\x94 for purp o ses o f separation\no f pow ers an a ly sis\xe2\x80\x94 n o t to encom pass agencies w ithin the legislative or jud icial branches T h u s, the C ourt has\nsaid that \xe2\x80\x9c independent\xe2\x80\x9d agencies are those w hose statutes \xe2\x80\x9c typically specify eith er that . . . ag en cy m em bers are\nrem ovable by the P resident for specified causes [such as the FTC] .\n. or else d o not specify a rem oval pro ced u re\n[such as the Federal E lection C o m m ission].\xe2\x80\x9d B ow sher v. S yn a r, 478 U .S. 714, 725 n.4 (1986) By contrast, a statu te\n\xe2\x80\x9c that provides for d irect congressional involvem ent o v e r th e decision to rem o v e\xe2\x80\x9d the agency head creates an en tity\nthat is not generally an \xe2\x80\x9c independent ag e n cy \xe2\x80\x9d in the constitutional sense. S ee id. T h u s, at least in B ow sher, the\nC ourt seem ed reluctant to view the C om ptroller G eneral as an \xe2\x80\x9c independent ag e n cy \xe2\x80\x9d for constitutional purposes\nSuch a view w ould not negate the possibility o f considering the C om ptroller G en eral to be \xe2\x80\x9c in d ep en d en t\xe2\x80\x9d w ithin\nthe m eaning o f \xc2\xa7 2 0 8 \xe2\x80\x94 a possibility that w e exam ine in Part I.C below . An agency m ight count as \xe2\x80\x9c in d ep en d en t\xe2\x80\x9d\nun d er a particular statutory schem e w ithout necessarily being \xe2\x80\x9c independent\xe2\x80\x9d in the constitutional sen se\n7 F or exam ple, W illiam s v. U nited States, 289 U S . 553 (1933), addressed the q u estion w hether a ju d g e o f the\nC o u rt o f C laim s (a \xe2\x80\x9c le g islativ e\xe2\x80\x9d o r \xe2\x80\x9c A rticle I\xe2\x80\x9d court) enjoyed the tenure protection afforded to constitutional courts\nby A rticle 111, Section 1 o f the C onstitution A lthough denying that C ourt o f C laim s ju d g e s enjoyed such constitutional\ntenure, the S uprem e C o u rt observed that \xe2\x80\x9c [t]he preservation o f [the C ou rt o f C la im s\xe2\x80\x99] independence is a m atter\no f public concern T he sole function o f th e court being to decide betw een the g overnm ent and private su ito rs, a\ncondition, on the part o f the ju d g e s, o f en tire dependence upon the le gislative p lea su re fo r the ten u re o f th eir o ffices\n. . . to say th e least, is not d esira b le.\xe2\x80\x9d Id. at 562 (em phasis added).\n8 S ee Lathrop v. D onohue, 367 U S 820, 853 (1961) (H arlan, J , concurring in ju d g m en t) (B ureau o f the B udget\nis \xe2\x80\x9c in dependent\xe2\x80\x9d although w ithin the executive branch). S ee also D obson v C om m issioner, 3 2 0 U S 489, 497\n(1943) (B oard o f T ax A ppeals w as statutorily designated as \xe2\x80\x9c an independent ag en cy in the ex ecu tiv e branch o f\nthe G o v ernm ent\xe2\x80\x9d ); R a ilro a d R etirem ent Bd. v A lton R. C o , 295 U.S 330, 344 (1935) (R ailroad R etirem ent B oard\nw as \xe2\x80\x9c denom inated an independent agency in the executive branch o f the G o v ern m en t\xe2\x80\x9d ), G oldsm ith v. U nited S ta tes\nC o n tinued\n\n31\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\ncould have had in view those agencies, whether belonging to the executive, legis\xc2\xad\nlative or judicial branch, that enjoyed at least some freedom from the control\nof higher authorities within that branch by virtue of protections against the\nremoval of the agencies\xe2\x80\x99 heads. As discussed below, this account of Congress\xe2\x80\x99s\nintent has found support in this Office\xe2\x80\x99s prior opinions.\nWe do not believe it is necessary in this memorandum to decide between these\nalternative readings, because the Commission does not count as \xe2\x80\x9c independent\xe2\x80\x9d\nunder either of the alternatives we describe. Furthermore, as we discuss below,\nthere is no evidence that Congress intended it to be considered \xe2\x80\x9c independent.\xe2\x80\x9d\nA.\nWe begin by reviewing the legislative history of \xc2\xa7 208. We have found little\nrelevant history on the precise point at issue, and what little history there is sheds\nalmost no light on it.\n\xe2\x80\x9c Section 208 was modeled on the former section 434 of title 18, which\n\xe2\x80\x98disqualified] an employee of the Government who has an interest in the profits\nor contracts of a business entity from the transaction of business with such\nentity.\xe2\x80\x99 \xe2\x80\x9d Applicability o f 18 U.S.C. \xc2\xa7208 to the Federal Communications\nCommission\xe2\x80\x99s Representative on the Board o f Directors o f the Telecommuni\xc2\xad\ncations Development Fund, 21 Op. O.L.C. 96, 98 (1997) (citation omitted). Sec\xc2\xad\ntion 434 had made no express reference to independent agencies. That reference\noriginated in the general reform o f the major federal conflict of interest statutes\nmade by the Bribery, Graft and Conflicts of Interest Act of 1962, Pub. L. No.\n87-849, 76 Stat. 1119. The legislation represented Congress\xe2\x80\x99s response to the\nperception of several serious inadequacies in those statutes (including \xc2\xa7434),\namong them the fact that they were \xe2\x80\x98\xe2\x80\x98drafted in unnecessarily broad and imprecise\nways,\xe2\x80\x9d thus creating \xe2\x80\x9c uncertainties as to proper conduct and, to a degree, incon\xc2\xad\nsistent practices among the departments and agencies of the Government.\xe2\x80\x9d Con\xc2\xad\nflict o f Interest Statutes: Intermittent Consultants or Advisers, 42 Op. Att\xe2\x80\x99y Gen.\nI l l , 112 (1962) (Kennedy, A.G.).\nWhile the reference in \xc2\xa7208 to \xe2\x80\x9c independent\xe2\x80\x9d agencies as well as to the\n\xe2\x80\x9c executive branch\xe2\x80\x9d may have been designed to make the statutory coverage more\nprecise, we have found no explanation of what Congress specifically intended.\nThe House Report on the 1962 law describes \xc2\xa7 207(a) (and \xc2\xa7\xc2\xa7208 and 209) as\napplying to officers and employees of the \xe2\x80\x98executive branch\xe2\x80\x99 or an \xe2\x80\x98independent\nagency,\xe2\x80\x99 without further elaboration. See, e.g., H.R. Rep. No. 748, 87th Cong.,\n1st Sess. 11, 12, 13, 23, 24 (1961). The Senate Report describes \xc2\xa7\xc2\xa7207, 208\nand 209 as applying to present and former government employees only in very\ngeneral terms. See S. Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in\nBd. o f T ax A p p e a ls, 2 7 0 U .S\nw as w ithin e x e cu tiv e branch).\n\n117, 121 (1 9 2 6 ) (Board o f T ax A ppeals perform ed \xe2\x80\x9c q u asi ju d ic ia l\xe2\x80\x9d functions and\n\n32\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7208 to National Gambling Impact Study Commission\n\n1962 U.S.C.C.A.N. 3852. Applicability o f Post-Employment Restrictions on\nDealing with Government to Former Employees o f the Government Printing\nOffice, 9 Op. O.L.C. 55, 56 n.3 (1985) (\xe2\x80\x9c GPO Opinion\xe2\x80\x9d ). A legal commentator\nof the time (and participant in the framing of the legislation) observed that \xc2\xa7\xc2\xa7 207209 were to apply to officers and employees of independent agencies as well\nas of the executive branch, but offered no explanation for this innovation. See\nRoswell B. Perkins, The New Federal Conflict-Of-Interest Law, 76 Harv. L. Rev.\n1113, 1123 (1963).9\nB.\nGiven that the legislative history of \xc2\xa7 208 is unilluminating, we have considered\nan interpretative approach that draws on the Supreme Court\xe2\x80\x99s pre-1962 jurispru\xc2\xad\ndence. This approach is based on the rule of construction that \xe2\x80\x9c [w]hen Congress\ncodifies a judicially defined concept, it is presumed . . . that Congress intended\nto adopt the interpretation placed on that concept by the courts.\xe2\x80\x9d Davis v.\nMichigan D ep\xe2\x80\x99t o f Treasury, 489 U.S. 803, 813 (1989).\nAt the time of \xc2\xa7208\xe2\x80\x99s enactment in 1962, two major Supreme Court cases on\n\xe2\x80\x9c independent\xe2\x80\x9d agencies, Humphrey\xe2\x80\x99s Executor and Wiener, had addressed the\nconstitutionality of statutory limitations on the power of the President to remove\nagency heads or commissioners. Those cases could serve to explain how \xc2\xa7208\xe2\x80\x99s\nreference to \xe2\x80\x9c independent agencies\xe2\x80\x9d should be construed.\nIn Humphrey\'s Executor, the Court upheld a statute restricting the President\xe2\x80\x99s\npower to remove a Commissioner of the FTC on grounds of \xe2\x80\x9c inefficiency, neglect\nof duty, or malfeasance in office.\xe2\x80\x9d 295 U.S. at 619. The Court held that the\nconstitutionality of such removal restrictions turned on \xe2\x80\x9c the character of the\noffice.\xe2\x80\x9d Id. at 631. The Court viewed the FTC as \xe2\x80\x9c an administrative body created\nby Congress to carry into effect legislative policies embodied in the statute in\naccordance with the legislative standard therein prescribed, and to perform other\nspecified duties as a legislative or as a judicial aid.\xe2\x80\x9d Id. at 628. Such an agency\nwas not \xe2\x80\x9c an arm or an eye of the executive\xe2\x80\x9d ; rather, its Commissioners were\nexpected to discharge their functions \xe2\x80\x9c without executive leave and . . . free from\nexecutive control.\xe2\x80\x9d Id. The powers of the FTC were not \xe2\x80\x9c purely\xe2\x80\x9d executive,\n9 W e note also that, in 1989, C ongress enacted 18 U S C \xc2\xa7 202(e)(1) (1994), w hich provided a defin itio n o f\n\xe2\x80\x9c executive b ran ch \xe2\x80\x9d ap p licab le to \xc2\xa7 2 0 8 Ethics R eform A ct o f 1989, Pub. L N o 101-194, \xc2\xa7 4 0 1 , 103 S tat. 1716,\n1748. T he definition reaches any \xe2\x80\x9c entity o r adm inistrative unit in th e executive b ran ch ,\xe2\x80\x9d but d o es not sp ecifically\nm ention \xe2\x80\x9c independent ag e n cy ,\xe2\x80\x9d w hich is not otherw ise defined. A rguably, som e en tities p reviously covered b y \xc2\xa7 208\nas \xe2\x80\x9c independent a g e n c [ie s]\xe2\x80\x9d w ere, after the am endm ent, covered (in addition o r instead) by the reference to the\n\xe2\x80\x9c executive branch \xe2\x80\x9d W e do not believe that the am endm ent requires giving the term \xe2\x80\x9c independent ag e n c y \xe2\x80\x9d in\n\xc2\xa7 2 0 8 a broader m eaning than in our analysis, on the ground that otherw ise all \xe2\x80\x9c independent ag en c[ies]\xe2\x80\x9d w ould\ncom e w ithin the refere n ce to the \xe2\x80\x9c executive b ran ch \xe2\x80\x9d and the term \xe2\x80\x9c independent agency\xe2\x80\x9d w ould be red u n d an t\nFirst, there is no evidence indicating that, by defining \xe2\x80\x9c executive b ra n c h ,\xe2\x80\x9d C o n g ress intended to enlarge th e ex ten t\nto w hich \xc2\xa7 2 0 8 reaches entities outside the executive branch. Second, if the referen ce is redundant, that m ay m erely\nreflect C o n g ress\xe2\x80\x99s appreciation o f the changes in the S uprem e C o u rt\xe2\x80\x99s ju risp ru d en ce m arked b y its 1987 d ecision\nin M orrison T hird, as w e discuss in Part I.C below , som e entities o utsid e the ex ecu tiv e branch could be covered\nas \xe2\x80\x9c independent agencfies] \xe2\x80\x9d\n\n33\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nbut were \xe2\x80\x9c quasi-legislative or quasi-judicial.\xe2\x80\x9d Id. Insofar as the FTC conducted\ninvestigations and reported its findings to Congress, it was acting in a quasi-legislative capacity; insofar as the statute required it to function as a master in chan\xc2\xad\ncery, it was acting quasi-judicially. Id. 10\nWiener followed H umphrey\xe2\x80\x99s Executor\xe2\x80\x99s \xe2\x80\x9c sharp line of cleavage between offi\xc2\xad\ncials who were part of the executive establishment\xe2\x80\x9d and \xe2\x80\x9c those who are members\nof a body \xe2\x80\x98to exercise its judgment without the leave or hindrance of any other\nofficial or any department of the government,\xe2\x80\x99 295 U.S., at 625-626, as to whom\na power of removal exists only if Congress may fairly be said to have conferred\nit.\xe2\x80\x9d 357 U.S. at 353. The Court applied that distinction to the President\xe2\x80\x99s removal\nof a member of the W ar Claims Commission.11 Although the statute creating that\nbody said nothing about removal, the Court inferred that \xe2\x80\x9c Congress provided for\na tenure defined by the relatively short period of time during which the War\nClaims Commission was to operate.\xe2\x80\x9d Id. at 352. Looking to \xe2\x80\x9c the nature of the\nfunction that Congress vested in the War Claims Commission\xe2\x80\x9d to decide whether\nsuch an implied removal restriction was valid, id. at 353, the Court found that\nthat agency had been created as \xe2\x80\x9c an adjudicating body with all the paraphernalia\nby which legal claims are put to the test of proof, with finality of determination\n\xe2\x80\x98not subject to review by any other official of the United States or by any court\nby mandamus or otherwise.\xe2\x80\x99 \xe2\x80\x9d Id. at 354-55 (citation omitted). Because the intent\nof Congress was to vest the W ar Claims Commissioners \xe2\x80\x9c with adjudicatory\npowers that were to be exercised free from executive control,\xe2\x80\x9d Morrison, 487\nU.S. at 688, the implied statutory removal restrictions were constitutional.\nThe Supreme Court\xe2\x80\x99s recent case law casts doubt on the viability of the doctrinal\ncategories used in Humphrey\'s Executor and Wiener. In particular, the Court now\nrecognizes the \xe2\x80\x9c difficulty of defining such categories of \xe2\x80\x98executive\xe2\x80\x99 or \xe2\x80\x98quasi\xc2\xad\nlegislative\xe2\x80\x99 officials,\xe2\x80\x9d Morrison, 487 U.S. at 689 n.28.12 Moreover, this Office\nhas found the rationale of Wiener \xe2\x80\x9c questionable.\xe2\x80\x9d 13 Nonetheless, the question\nhere is what Congress intended in 1962 when enacting \xc2\xa7208, not whether the\n10S e e a lso M o rriso n , 487 U .S . at 687 (ex p lain in g H u m p h rey \'s E xecutor) ; P ow er o f the P resident to Rem ove\nM e m b ers o f th e T ennessee V alley Authority F rom O ffice, 39 O p A tt\xe2\x80\x99y G en. 145, 146 (1938) (Jackson, A cting A .G.)\n(H u m p h r e y \xe2\x80\x99s E x e c u to r rested on facts that th e F T C \xe2\x80\x9c exercises quasi-leg islativ e and quasi-judicial fun ctio n s and\nis n o t a p art o f th e ex e cu tiv e b ra n c h \xe2\x80\x9d , Court a ls o stressed leg islativ e history \xe2\x80\x9c m dicaung a p u rp o se o f th e C ongress\nto se c u re th e m a x im u m ind e p en d en ce of the C o m m issio n from E x ecu tiv e interference and co n tro l\xe2\x80\x9d ).\n11 T h e W a r C laim s C o m m issio n w as established by the W ar C laim s A ct o f 1948, Pub. L. N o 8 0 -8 9 6 , 62 Stat\n1240 Its re sp o n sib ility w as to h ea r and adjudicate certain claim s arising o ut o f enem y co n d u ct d u n n g the Second\nW o rld W ar.\n]2S ee a lso R u b e ro id C o , 343 U .S at 487-88 (Jackson, J , dissenting)\nl3 77ie C o n s titu tio n a l Sep a ra tio n o f Powers betw een the P resid en t a n d C ongress, 20 O p O .L .C 124, 168 n 115\n(1 9 9 6 ) ( \xe2\x80\x9c D ellin g er M em o ra n d u m \xe2\x80\x9d ). Specifically, w e said that \xe2\x80\x9c [t]he rationale o f W iener, w hich is essen tially that\nC o n g ress m u st h av e im plied a for-cause rem oval restriction w hen th e Court believes that th e functions o f the agency\nd em an d such te n u re p rotection, 357 U.S at 3 5 3 -5 6 , seem s questionable. T h ere w ould be nothing illogical in a\nle g islativ e d ec isio n , fo r exam ple, to protect a g a in st review o r revision o f th e decisions o f th e agency, see id. 3 5 4 55, w h ile placin g th e ag e n c y \xe2\x80\x99s decisionm akers w ithin the control o f the P resident.\n. . T o the extent that W iener\nassu m es th a t co n tro l is and o u g h t to be a b in a ry m a tte r\xe2\x80\x94 eith er plenary o r non-existent \xe2\x80\x94 its reasoning is difficult\nto reco n c ile w ith m o re recen t separauon o f p o w ers decisions th a t reject su ch an either/or approach to presidential\nco n tro l. Id. W e n o ted , how ever, that Wiener \xe2\x80\x9c co n tin u es to be fo llo w e d \xe2\x80\x9d in th e lo w er courts Id.\n\n34\n\n\x0cApplicability o f 18 U.S C. \xc2\xa7 208 to National Gambling Impact Study Commission\n\nConstitution admits the possibility of \xe2\x80\x9c hybrid\xe2\x80\x9d agencies not belonging to any\nof the three branches. We think it plausible to suppose that in 1962, Congress\nwould have understood a statutory reference to \xe2\x80\x9c independent agencies\xe2\x80\x9d to mean\nagencies such as the FTC or the War Claims Commission, i.e., agencies that were\nnot then considered to be part of the executive branch, or indeed of any of the\nthree branches.\nAssuming that such was Congress\xe2\x80\x99s intent, we find that the Commission would\nnot be an \xe2\x80\x9c independent\xe2\x80\x9d agency under the standards of Humphrey\xe2\x80\x99s Executor\nor Wiener. First, unlike the FTC or the War Claims Commission, the Commission\nexercises no functions that under Humphrey\xe2\x80\x99s Executor and Wiener were consid\xc2\xad\nered to be adjudicatory in nature. Second, the Commission exists solely to conduct\na-study and to report its findings and recommendations to Congress, the President,\nand State and tribal governments.14 Its responsibilities are \xe2\x80\x9c essentially of an inves\xc2\xad\ntigative and informative nature, falling in the same general category as those\npowers which Congress might delegate to one o f its own committees." Buckley\nv. Valeo, 424 U.S. 1, 137 (1976) (emphasis added). We think that the Commission\nfunctions much as a congressional committee does when conducting an investiga\xc2\xad\ntion or drafting a legislative proposal based on the information it has gathered;\nindeed, it seems to us that, given its overall statutory structure, the Commission\nis a part of the legislative branch.15 It is therefore unlike the \xe2\x80\x9c headless fourth\nbranch\xe2\x80\x9d regulatory agency that Humphrey\xe2\x80\x99s Executor took the FTC to be.\nIn summary: because Humphrey\xe2\x80\x99s Executor and Wiener were assuredly \xe2\x80\x9c within\nthe lively knowledge of Congress\xe2\x80\x9d when \xc2\xa7208 was enacted. Wiener, 357 U.S.\nat \'353, we think that they provide a plausible test of what Congress intended\nwhen referring in that section to \xe2\x80\x9c independent agenc[ies].\xe2\x80\x9d If that test is applied,\nthen the Commission cannot be counted as \xe2\x80\x9c independent.\xe2\x80\x9d\nC.\nThe paucity of relevant legislative history relating to \xc2\xa7 208 leaves open a second\npossibility: that an agency could be considered independent under the statute if,\nand only if, its head (or, in cases where the agency has a collective head, the\nmembers of that body) enjoys at least some degree of protection against removal\nfrom superior officials, whatever the branch to which the agency belongs. In other\nwords, the Congress that enacted \xc2\xa7 208 may have perceived some agencies as\n\xe2\x80\x9c independent\xe2\x80\x9d even if they were located in a particular branch (rather than in\na putative \xe2\x80\x9c headless fourth branch\xe2\x80\x9d ), provided that they resembled the paradig\xc2\xad\n14 \xe2\x80\x9c T his com m ission does not have the pow er to regulate, only to m ake recom m endations It is a study co m m issio n ,\nnot a regulatory body \xe2\x80\x9d 142 Cong. Rec. 17,421 (1996) (statem ent o f Sen G lenn).\n15 A s discussed above, w e have previously concluded that the C om m ission is not w ithin th e executive branch.\nSee su p ra note 2 W hat branch a com m ission m ay fall in depends on a n um ber o f factors W e do not m ean to\nsuggest here that w henever a com m ission\xe2\x80\x99s m ission is to conduct a study and to rep o rt its findings and reco m m en d a\xc2\xad\ntions to C ongress that it is necessarily legislative rath er than executive\n\n35\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nmatic independent agencies with respect to tenure protection. Accordingly, agen\xc2\xad\ncies in the legislative or judicial branches, as well as in the executive, could be\ncounted as \xe2\x80\x9c independent\xe2\x80\x9d under \xc2\xa7208. In fashioning this interpretation, we again\nconsult the Supreme Court\xe2\x80\x99s pre-enactment case law. We also find support for\nit in several of this Office\xe2\x80\x99s precedents.\nAs construed by the Supreme Court only a year before \xc2\xa7 208 was enacted, its\nprecursor statute, 18 U.S.C. \xc2\xa7434 (Supp. II 1946), was said to be designed \xe2\x80\x9c to\ninsure honesty in the Government\xe2\x80\x99s business dealings by preventing federal agents\nwho have interests adverse to those of the Government from advancing their own\ninterests at the expense of the public welfare.\xe2\x80\x9d United States v. Mississippi Valley\nGenerating Co., 364 U.S. 520, 548 (1961). The individual with whose conflicted\nactivities the Court was most concerned in Mississippi Valley was a part-time\nconsultant to the Bureau of the Budget (the precursor of the Office of Management\n& Budget). At the time, the Bureau of the Budget was apparently considered to\nbe in some sense \xe2\x80\x9c independent.\xe2\x80\x9d See Lathrop v. Donohue, 367 U.S. at 853\n(Harlan, J., concurring in judgment); National F ed\xe2\x80\x99n o f Federal Employees v.\nCheney, 883 F.2d 1038, 1045 (D.C. Cir. 1989) (Bureau of Budget was \xe2\x80\x9c quasi\xc2\xad\nindependent\xe2\x80\x9d entity within Treasury Department), cert, denied, 496 U.S. 936\n(1990). Nonetheless, the Bureau of the Budget could not have been \xe2\x80\x9c inde\xc2\xad\npendent\xe2\x80\x9d in the sense indicated by Humphrey\xe2\x80\x99s Executor and Wiener, if only\nbecause the Treasury Department, where the Bureau had been lodged, was plainly\nwithin the executive branch.16 It is at least conceivable, therefore, that Congress\nintended \xc2\xa7 208 to apply to certain agencies that were acknowledged to belong\nto a particular branch, provided that they had a sufficient resemblance to the con\xc2\xad\nstitutional paradigms of \xe2\x80\x9c independence.\xe2\x80\x9d In particular, since protection against\nremoval has figured in the cases as the key element in defining agency \xe2\x80\x9c independ\xc2\xad\nence,\xe2\x80\x9d an agency in the legislative or judicial branch could be \xe2\x80\x9c independent\xe2\x80\x9d\nwithin the meaning of \xc2\xa7 208 if its head enjoyed some form of tenure protection.\nCf. Williams, 289 U.S. at 562.\nSeveral of this Office\xe2\x80\x99s opinions have reflected this possibility, finding that par\xc2\xad\nticular agencies were to be considered \xe2\x80\x9c independent\xe2\x80\x9d for purposes of \xc2\xa7208,\ndespite the fact that they were situated within the legislative or judicial branches.\nTo be sure, \xc2\xa7 208 does not ordinarily apply to officers or employees of the legisla\xc2\xad\ntive and judicial branches.17 Nevertheless, although an agency is within the legis\xc2\xad\nlative or judicial branch, we have thought that it might still be considered \xe2\x80\x98\xe2\x80\x98inde\xc2\xad\npendent\xe2\x80\x9d for purposes of \xc2\xa7 208. Our opinions in this line are relevant to the status\no f the Commission under \xc2\xa7 208, insofar as it might be argued that the Commission\n16 S ee P o w e r o f the P resid en t to Remove M e m b ers o f the T ennessee Valley A u th o rity F rom O ffice, 39 O p A tt\xe2\x80\x99y\nG en at 146 (u n d er H u m p h r e y \xe2\x80\x99s Executor, o n ly an agency \xe2\x80\x9c not a p art o f the ex ecu tiv e b ran ch \xe2\x80\x9d could be considered\nin d e p en d en t fo r sep aratio n o f pow ers analysis).\n17 S ee G P O O p in io n , 9 O p. O .L C at 5 6 (discussing leg islativ e history); G A O O pinion, 3 O p. O .L C . at 435\n(\xc2\xa7 2 0 8 an d co m panion statutes \xe2\x80\x9c do not by th e ir term s and w ere not intended to apply to officers and em ployees\no f th e le g islativ e and ju d ic ia l branches\xe2\x80\x9d ).\n\n36\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 208 to National Gambling Impact Study Commission\n\nis an \xe2\x80\x9c independent\xe2\x80\x9d agency in the legislative branch. As further discussed below,\nhowever, that suggestion ultimately lacks merit.\nThree OLC opinions are relevant. First, in the GAO Opinion, we found that\nthe GAO was, under \xc2\xa7208, an \xe2\x80\x9c independent\xe2\x80\x9d body not within the executive\nbranch and arguably within the legislative branch. See GPO Opinion, 9 Op. O.L.C.\nat 57-58 (citing GAO Opinion, 3 Op. O.L.C. 433). The Comptroller General is\nremovable \xe2\x80\x9c not only by impeachment but also by joint resolution of Congress,\xe2\x80\x9d\nBowsher v. Synar, 478 U.S. at 728, and consequently he or she is an officer of\nthe legislative branch who \xe2\x80\x9c may not be entrusted with executive powers.\xe2\x80\x9d Id.\nat 732. Nonetheless, it remains the case that the governing statute provides that\nCongress may remove that officer only for a cause such as inefficiency, neglect\nof duty, or malfeasance. Id. at 728\xe2\x80\x9429. In the GAO Opinion, we analyzed the\neffect of the tenure protection enjoyed by the Comptroller General, together with\nother statutory provisions of title 31, on the status of that officer under \xc2\xa7208.\nWithout denying that the Comptroller General and the GAO are \xe2\x80\x9c subservient to\nCongress,\xe2\x80\x9d 478 U.S. at 730,18 we found that the statute gave the Comptroller\nGeneral some measure of \xe2\x80\x9c independence\xe2\x80\x9d from Congress, so that GAO officers\nand employees were properly considered subject to \xc2\xa7 208. We said:\nThe establishment of a fixed tenure of office, subject to removal\nfor cause, has generally been regarded as intended to promote an\nelement of independence of action. C f, Humphrey\xe2\x80\x99s Executor v.\nUnited States, 295 U.S. 602, 624\xe2\x80\x9426 (1935). Thus, while the Comp\xc2\xad\ntroller General and GAO are independent of the executive branch,\nthey apparently are expected to be somewhat independent of the\nlegislative branch as well. I therefore am led to conclude that what\xc2\xad\never their status for other purposes, the Comptroller General and\nofficers and employees of the GAO are officers and employees of\nan \xe2\x80\x9c independent agency of the United States\xe2\x80\x9d for purposes of 18\nU.S.C. \xc2\xa7 207 \xe2\x80\x94 \xc2\xa7\xc2\xa7 208 and 209 as well.\nGAO Opinion, 3 Op. O.L.C. at 436.19\nSecond, in the GPO Opinion, we concluded that the GPO is not \xe2\x80\x9c independent\xe2\x80\x9d\nfor purposes of \xc2\xa7 208. We reached that conclusion despite the fact that the Public\nPrinter is presidentially appointed. Our analysis tracked the judicial view that the\nGPO is an entity within the legislative branch, whose primary function is to pro\xc2\xad\nvide support for Congress. See GPO Opinion, 9 Op. O.L.C. at 57.20 The question\n[* S ee a lso id. at 746 n .l 1 (S tevens, J., concurring in ju dgm ent) (C om ptroller Genera) and G A O \xe2\x80\x9c h av e a fundam en\xc2\xad\ntally different relationship w ith C ongress than do independent agencies like th e Federal T rad e C o m m issio n \xe2\x80\x9d )\n19In addition, w e note that form er 31 U S C \xc2\xa741 (a) (1921) (now 31 U .S.C . \xc2\xa7 7 0 2 (a) (1994)),-specifically d eclared\nthe G A O to be \xe2\x80\x9c independent\xe2\x80\x9d o f th e executive. See G A O O pinion, 3 O p. O .L .C . at 436\n20 W e have subsequently review ed the status o f the G P O at som e len g th , and h ave again found that it is an\nagency w ithin th e legislative branch See Involvem ent o f the G overnm ent P rinting O ffice in E xecutive B ranch Printing\nC ontinued\n\n37\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\no f the Public Printer\xe2\x80\x99s tenure of office was not considered in this opinion, although\nour conclusion would have been fortified if it had been. The GPO\xe2\x80\x99s statute, 44\nU.S.C. \xc2\xa7\xc2\xa7301-317, vests appointment power of the Public Printer in the President\n(subject to Senate advice and consent), but is silent as to the Public Printer\xe2\x80\x99s\nremoval. By inference, therefore, the Public Printer can be removed at will by\nthe appointing authority (i.e., the President), and does not enjoy tenure protection.\nSee Dellinger Memorandum, 20 Op. O.L.C. at 172-73 (because the Librarian of\nCongress \xe2\x80\x94 like the GPO, a congressional agency \xe2\x80\x94 \xe2\x80\x9c is not protected by an\nexplicit for-cause removal limitation, . . . we therefore infer that the President\nhas at least the formal power to remove the Librarian at will\xe2\x80\x9d ). Our conclusion\nas to the GPO can thus be read to provide some (indirect) support for the view\nthat an agency in the legislative (or judicial) branch is \xe2\x80\x98 \xe2\x80\x98independent\xe2\x80\x99\xe2\x80\x99 for purposes\nof \xc2\xa7 208 if, but only if, its head enjoys a degree of tenure protection.\nA third opinion addressing the United States Sentencing Commission falls\nwithin this line. See Memorandum for Jamie Gorelick, Deputy Attorney General,\nfrom Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of\nLegal Counsel, Re: Sentencing Commission/Conflict Rules at 14 (July 21, 1994)\n(\xe2\x80\x9c Sentencing Commission Opinion\xe2\x80\x9d ). There we found the Sentencing Commis\xc2\xad\nsion, which had been established by statute as \xe2\x80\x9c an independent commission in\nthe judicial branch of the United States,\xe2\x80\x9d 28 U.S.C. \xc2\xa7 991(a) (1994), to be an\n\xe2\x80\x9c independent\xe2\x80\x9d agency under \xc2\xa7208; see also Mistretta v. United States, 488 U.S.\n361, 384\xe2\x80\x9485, 390, 393 (1989) (Sentencing Commission held an independent\nagency within judicial branch). Like the GAO and unlike the GPO, the Sentencing\nCommissioners enjoy some degree of tenure protection: the statute \xe2\x80\x9c grants the\nPresident authority to remove members of the Commission, although \xe2\x80\x98only for\nneglect o f duty or malfeasance in office or for other good cause shown.\xe2\x80\x99 28 U.S.C.\n\xc2\xa7 991(a).\xe2\x80\x9d Mistretta, 488 U.S. at 409. Here, too, an agency that was located out\xc2\xad\nside the executive branch was found to be \xe2\x80\x9c independent\xe2\x80\x9d under \xc2\xa7208, and here\nagain the agency head enjoyed tenure protection.\nIn the present case, this test o f \xe2\x80\x9c independence\xe2\x80\x9d is not met. Nothing in the\nAct creating the Commission states or implies that Commissioners are to enjoy\nany form of tenure protection. On this reading of the statute (which, like the\nreading outlined in Part I, seems to us a plausible construction), the Commission\nis not subject to \xc2\xa7 208.\nO f the three OLC precedents considered in this Part, the GPO Opinion, holding\n\xc2\xa7 208 inapplicable, closely fits the circumstances of the Commission. Moreover,\nthe conclusion that the Commission is not \xe2\x80\x98 \xe2\x80\x98independent\xe2\x80\x99\xe2\x80\x99 for purposes of \xc2\xa7 208\nunder the test considered here harmonizes with our precedents in another respect:\nit accords with our past view that the section does not cover those who are \xe2\x80\x98\xe2\x80\x98prop\xc2\xad\nerly regarded as officers or employees o f the Congress or one of its Houses or\na n d D u p lic a tin g , 20 O p. O .L .C . 214 (1996) M o re recently still, w e reaffirm ed the an alysis o f the la tte r m em orandum .\nS e e G o vern m en t P rinting O ffice Involvem ent in Executive B ranch P rin tin g , 2 0 O p. O L C . 282 (1996).\n\n38\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7208 to National Gambling Impact Study Commission\n\nagencies and who are responsible in some immediate sense to the Congress,\xe2\x80\x9d\nsuch as \xe2\x80\x9c those officers and employees appointed by the Congress or one House\nthereof to perform functions in aid of the legislative process.\xe2\x80\x9d GAO Opinion,\n3 Op. O.L.C. at 435-36.\nII.\nWe find no other reason to believe that Congress intended to subject the\nCommission to \xc2\xa7208. On the contrary, our conclusion that the Commission is\nnot \xe2\x80\x9c independent\xe2\x80\x9d for purposes of \xc2\xa7208 is well supported by the language and\nlegislative history of the Act.\nFirst, nothing in the language of the Act itself designates the Commission as\n\xe2\x80\x9c independent.\xe2\x80\x9d As noted above, this distinguishes the Commission from other\nbodies that we have found to be subject to \xc2\xa7 208, such as the GAO and the Sen\xc2\xad\ntencing Commission.\nSecond, the language of the Act assumes that the nine Commissioners will rep\xc2\xad\nresent a variety of distinct and incompatible points of view with respect to gam\xc2\xad\nbling, and that some Commissioners will be associated with the gambling industry.\nThus, section 3(b)(2) of the Act states that \xe2\x80\x9c [t]he [Commission] members may\nbe from the public or private sector, and may include . . . members of . . .\nindustry.\xe2\x80\x9d In addition, section 3(b)(3) states that the appointing authorities are\nto consult together \xe2\x80\x9c to achieve, to the maximum extent possible, fair and equitable\nrepresentation of various points of view\xe2\x80\x9d on the Commission. That the Commis\xc2\xad\nsion membership was intended to include representatives of different points of\nview \xe2\x80\x94 some of whom could be expected to have financial interests in the\nCommission\xe2\x80\x99s recommendations \xe2\x80\x94 does not in itself mean that \xc2\xa7208 is inappli\xc2\xad\ncable, see Office of Government Ethics Informal Opinion 82 x 22 (1989 ed.).\nNonetheless, the statutory criteria for Commission membership clearly indicates\nthat Congress was not attempting to insulate the Commission from outside influ\xc2\xad\nences in order to ensure its \xe2\x80\x9c independence.\xe2\x80\x9d\nThe legislative history confirms that understanding. The House Judiciary\nCommittee\xe2\x80\x99s Report on the legislation, H.R. 497, stated:\nthe Committee expects that the [appointing] authorities may con\xc2\xad\nsider for appointment representatives of various interested groups\nincluding, gambling proponents and opponents, state gambling\nregulators, federal and state prosecutors, Indian gambling operators,\nprofessionals who treat compulsive gamblers, casino operators,\nactivists who have opposed gambling referenda, state lottery offi\xc2\xad\ncials, and representatives of non-gambling businesses in areas\naround gambling operations.\n39\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nH.R. Rep. No. 104\xe2\x80\x94440, pt. 1, at 8 (1995), reprinted in 1996 U.S.C.C.A.N. 1192,\n1197.\nIn the House debate, Representative Hyde, Chairman of the House Judiciary\nCommittee that reported out the bill, sought to answer charges that the Commis\xc2\xad\nsion might be skewed against the gambling industry. He said:\nI believe that this Commission can do the most good if its study\nis as neutral, objective, and comprehensive as possible \xe2\x80\x94 consid\xc2\xad\nering the views of all sides o f this issue. In that spirit, I proposed\na committee amendment in the nature of a substitute to H.R. 497,\nwhich the Judiciary Committee adopted on a voice vote.\nMy substitute included the vast majority of the provisions con\xc2\xad\ntained in H.R. 497 as originally introduced, but it added language\nso as to assure that all points of view would be represented on\nthe Commission. Specifically, the bill now requires that the\nappointing authorities consult together to ensure that the overall\nmakeup of the Commission fairly and equitably represents] various\npoints of view.\n142 Cong. Rec. 3642-43 (1996).21\nThus, instead of seeking to promote public confidence in the Commission\xe2\x80\x99s\nstudy by requiring that the Commission be \xe2\x80\x9c independent\xe2\x80\x9d of outside influence,\nCongress preferred an approach in which at least some Commissioners could have\nopen and avowed interests, biases and commitments that would check and balance\nthose o f other Commissioners. From this (partly) \xe2\x80\x9c adversarial\xe2\x80\x9d system, it was\nhoped that a balanced and objective study would be more likely to result. Plainly,\na Commission so conceived would be very likely to include members whose per\xc2\xad\nsonal stakes in the outcome of the Commission\xe2\x80\x99s work would be disqualifying\nunder \xc2\xa7 208, if that statute were to apply. Given Congress\xe2\x80\x99s careful decisions about\nthe nature o f the Commission, the statute gives no indication that \xc2\xa7208 was\nintended to apply to this advisory body.\n\n21 S im ilarly, in th e S en ate deb a te. Senator C o ats, a supporter, stated:\nO p p o n en ts o f this c o m m issio n have raised m any charges against it. T h e y have claim ed th at the co m m is\xc2\xad\nsio n is a tool o f the relig io u s right. They h av e claim ed th a t the com m issio n w ill b eco m e a w itch hunt\nag a in st th e g am b lin g industry.\nM r. P resid en t, these claim s are unfounded. T h e app o in tm en t o f com m issio n ers w ill b e equally divided\nb etw een th e ex e cu tiv e bran ch and the tw o H o u ses o f C ongress, en su rin g that no factio n m ay dom inate\nth e w ork o f th e com m ission.\n142 C o n g . R ec. 17,425, 17,426 (1996).\n\n40\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 208 to National Gambling Impact Study Commission\n\nConclusion\nFor all of the above reasons, we conclude that the Commission should not be\nconsidered an \xe2\x80\x9c independent\xe2\x80\x9d agency within the meaning of \xc2\xa7208, whichever\nmeaning of that term is adopted, and hence is not subject to that statute.\nBETH NOLAN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n41\n\n\x0c'