b'(Slip Opinion)\n\nExecutive Branch Participation in the\nCyberspace Solarium Commission\nIn our tripartite constitutional structure, any commission performing federal functions\nmust reside within a single one of the three branches of government.\nThe Cyberspace Solarium Commission is properly viewed as a Legislative Branch entity,\nbecause congressional appointees compose the majority of the Commission\xe2\x80\x99s membership, the Commission exercises the investigative authorities of a congressional committee, and the Commission\xe2\x80\x99s ultimate mission is to advise Congress.\nThe Executive Branch officials serving on the Commission should act with one unified\nvoice, subject to executive supervision, in advising the Commission and should maintain the confidentiality of Executive Branch information when sharing their information and expertise with the Commission.\nOctober 9, 2020\n\nMEMORANDUM OPINION FOR THE LEGAL ADVISOR\nNATIONAL SECURITY COUNCIL\nThe John S. McCain National Defense Authorization Act for Fiscal\nYear 2019, Pub. L. No. 115-232, 132 Stat. 1636 (2018) (\xe2\x80\x9cFY 2019\nNDAA\xe2\x80\x9d), created the Cyberspace Solarium Commission (\xe2\x80\x9cCommission\xe2\x80\x9d)\nto \xe2\x80\x9cdevelop a consensus on a strategic approach to defending the United\nStates . . . against cyber attacks.\xe2\x80\x9d Id. \xc2\xa7 1652(a)(1), 132 Stat. at 2140\xe2\x80\x9341.\nThe fourteen-member Commission consisted of representatives from both\nthe Legislative Branch and the Executive Branch: four senior Executive\nBranch officers who served ex officio and ten appointees from Congress.\nId. \xc2\xa7 1652(b)(1)(A), 132 Stat. at 2141. The Commission was required to\nprovide a report to Congress with recommendations related to the proper\n\xe2\x80\x9ccore objectives\xe2\x80\x9d for cyber defense and to \xe2\x80\x9cvarious strategic options to\ndefend the United States.\xe2\x80\x9d 1 Id. \xc2\xa7 1652(f )(1)\xe2\x80\x93(2), (k)(1), 132 Stat. at 2142,\n2146. The Director of National Intelligence (\xe2\x80\x9cDNI\xe2\x80\x9d), Secretary of Defense, and Secretary of Homeland Security were then required to provide\ntheir assessment of the report within 60 days of receiving it. Id. \xc2\xa7 1652(l),\n132 Stat. at 2146.\n1 The Commission publicly released the report on March 11, 2020, but was not required by statute to formally submit the report to Congress until April 30. See Cyberspace\nSolarium Commission, Final Report (Mar. 2020), https://www.solarium.gov/report.\n\n1\n\n\x0c44 Op. O.L.C. __ (Oct. 9, 2020)\n\nThe structure of the Commission raised a number of questions under\nthe constitutional separation of powers, which bore upon whether and how\nthe Executive Branch members of the Commission could participate in its\nwork. This memorandum memorializes this Office\xe2\x80\x99s oral advice provided\nto the Executive Branch members of the Commission, regarding the\norganization of the Commission\xe2\x80\x99s operations, votes by Executive Branch\nofficials about the Commission\xe2\x80\x99s business, and the Executive Branch\ncontributions to the Commission\xe2\x80\x99s final report.\nCommissions with members appointed by both the Legislative and Executive Branches have been established on many prior occasions, but the\nExecutive Branch has long recognized that such \xe2\x80\x9chybrid\xe2\x80\x9d commissions\npresent constitutional concerns. 2 Although these commissions may lawfully exercise advisory functions, where they exercise the authority of the\ngovernment, they must do so within the confines of the Constitution\xe2\x80\x99s\ntripartite structure and reside in one branch. Here, congressional appointees composed the majority of the Commission\xe2\x80\x99s membership, the Commission exercised the investigative authorities of a congressional committee, and the Commission\xe2\x80\x99s ultimate mission was to advise Congress. The\nCommission thus was properly viewed as a Legislative Branch entity.\n2\n\nSee, e.g., Statement on Signing the Bill Establishing a Commission on the Bicentennial of the United States Constitution (Sept. 29, 1983), 2 Pub. Papers of Pres. Ronald\nReagan 1390 (1983) (\xe2\x80\x9c[B]ecause of the constitutional impediments contained in the\ndoctrine of the separation of powers, I understand\xe2\x80\x9d that the Chief Justice and the congressional members of the bicentennial commission \xe2\x80\x9cwill be able to participate only in\nceremonial or advisory functions of the Commission, and not in matters involving the\nadministration of the act.\xe2\x80\x9d); Constitutionality of Resolution Establishing United States\nNew York World\xe2\x80\x99s Fair Commission, 39 Op. Att\xe2\x80\x99y Gen. 61, 62 (1937) (Cummings, Att\xe2\x80\x99y\nGen.) (objecting to a congressional commissioner that would plan and appoint commissioners for the New York World\xe2\x80\x99s Fair as \xe2\x80\x9camount[ing] to an unconstitutional invasion\nof the province of the Executive\xe2\x80\x9d); Participation of Members of Congress in the Ronald\nReagan Centennial Commission, 33 Op. O.L.C. 193, 195 (2009) (\xe2\x80\x9cRonald Reagan\nCommission\xe2\x80\x9d) (identifying constitutional concerns with commissions with members\nfrom multiple branches engaging in responsibilities that \xe2\x80\x9cextend beyond providing advice\nor recommendations . . . or participating in ceremonial activities\xe2\x80\x9d); Memorandum for the\nAttorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal\nCounsel, Re: Congressional Incursions into Areas of Executive Responsibility at 3\xe2\x80\x934 (Oct.\n31, 1984) (\xe2\x80\x9cCongressional Incursions\xe2\x80\x9d) (describing the Department\xe2\x80\x99s repeated \xe2\x80\x9cstrong[]\xe2\x80\x9d\nopposition to congressional creation of commissions with legislative and executive branch\nappointees as \xe2\x80\x9cinconsistent with the tripartite system of government established by the\nFramers of our Constitution\xe2\x80\x9d (internal quotation marks omitted)).\n\n2\n\n\x0cExecutive Branch Participation in the Cyberspace Solarium Commission\n\nWe recognized that the Commission, as a Legislative Branch entity,\ncould benefit from participation of its Executive Branch members, but we\nadvised that those members should carry out their advisory functions not\nas free agents, but as executive officers subject to supervision by their\ndepartments, and ultimately, the President. Because the Commission\xe2\x80\x99s\nExecutive Branch members represent the interests of the Executive\nBranch in performing their work, we advised that they should not provide\nindependent statements in assessing the Commission\xe2\x80\x99s work and that the\ncommission members should not vote individually on the Commission\xe2\x80\x99s\nfinal report or any of its subpoenas. The Commission\xe2\x80\x99s report and its\nsubpoenas were the official actions of a Legislative Branch entity. While\nthe Executive Branch members could, in principle, have adopted and\nadvanced common positions on those actions, the Commission\xe2\x80\x99s procedures and the need to release its report promptly made it impracticable for\nthem to do so. We therefore advised the Executive Branch officials not to\nvote, consistent with their accountability to the Executive Branch.\nWe further construed statutory provisions providing for the Executive\nBranch to provide staff and office space to the Commission to be discretionary, rather than mandatory, because the separation of powers imposes\nconstraints upon Congress\xe2\x80\x99s ability to enlist the Executive\xe2\x80\x99s staff and\nphysical resources. Finally, we advised that the Commission\xe2\x80\x99s Executive\nBranch members and staff were obliged to preserve Executive Branch\nconfidentiality interests. We explained that they should evaluate requests\nfor information in light of the accommodation principles at play when\ncongressional committees request information and support from the\nExecutive Branch, and in light of any executive privilege concerns, particularly given the classified nature of some of the Commission\xe2\x80\x99s work,\nsee FY 2019 NDAA \xc2\xa7 1652(g)(3)(C), 132 Stat. at 2144. See, e.g., United\nStates v. Am. Tel. & Tel. Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (requiring each branch to \xe2\x80\x9cseek optimal accommodation through a realistic\nevaluation of [their respective] needs . . . in the particular fact situation\xe2\x80\x9d).\nSuch obligations, however, do not mean that the Executive Branch officers could not accommodate the Commission\xe2\x80\x99s legitimate interests in that\nregard, consistent with the assistance regularly provided by the Executive\nBranch to Congress.\n3\n\n\x0c44 Op. O.L.C. __ (Oct. 9, 2020)\n\nI.\nThe FY 2019 NDAA established the Cyberspace Solarium Commission\nto gather evidence and prepare a report recommending a long-term strategy for defense against cyber attacks. Id. \xc2\xa7 1652(a)(1), (f )(1)\xe2\x80\x93(7), (k)(1),\n132 Stat. at 2141\xe2\x80\x9343, 2146. The Commission was modeled on President\nDwight D. Eisenhower\xe2\x80\x99s Cold War-era \xe2\x80\x9cProject Solarium,\xe2\x80\x9d which gathered three task forces of experts from public and private life to study\nstrategies for guarding against a potential stockpiling of atomic weapons\nby the Soviet Union. 3\nCongress directed the Cyberspace Solarium Commission \xe2\x80\x9c[t]o define\nthe core objectives and priorities\xe2\x80\x9d of a national cyber-defense strategy,\n\xe2\x80\x9cweigh the costs and benefits of various strategic options,\xe2\x80\x9d \xe2\x80\x9cevaluate the\neffectiveness of the current national cyber policy,\xe2\x80\x9d and \xe2\x80\x9cconsider possible\nstructures and authorities that need to be established, revised, or augmented within the Federal Government\xe2\x80\x9d to successfully guard against cyber\nattacks. FY 2019 NDAA \xc2\xa7 1652(f ), 132 Stat. at 2142\xe2\x80\x9343. By statute, the\nCommission\xe2\x80\x99s fourteen members included the Principal Deputy DNI, the\nDeputy Secretary of Homeland Security, the Deputy Secretary of Defense,\nthe Director of the Federal Bureau of Investigation, and ten congressional\nappointees who could be members of Congress. Id. \xc2\xa7 1652(a)(1)\xe2\x80\x93(2),\n(b)(1), 132 Stat. at 2141. On some prior occasions, Congress at least\npurported to specify whether a hybrid commission of this sort should be\nconsidered legislative or executive. 4 But it did not do so here.\nSee 164 Cong. Rec. S3927 (daily ed. June 13, 2018) (statement of Sen. Sasse, who\nhad originally proposed an amendment to the FY2018 NDAA that would have created the\nCyberspace Solarium Commission, see 163 Cong. Rec. S5674 (daily ed. Sept. 13, 2017));\nsee also Memorandum of Discussion at the 144th Meeting of the National Security\nCouncil, Wednesday, May 13, 1953, in Dep\xe2\x80\x99t of State Pub. No. 9347, 15 Foreign Relations of the United States, 1952\xe2\x80\x931954 (Korea) 1012, 1016 (1984) (describing statement of\nPresident Eisenhower explaining the objectives of Project Solarium). President Eisenhower named the project after the White House solarium, where the idea was conceived. See\nWilliam B. Pickett, Introduction: The Solarium Exercise of June 1953, in George F.\nKennan and the Origins of Eisenhower\xe2\x80\x99s New Look: An Oral History of Project Solarium\n3 (William B. Pickett ed., 2004).\n4 See, e.g., FY 2019 NDAA \xc2\xa7 1051(a)(1)\xe2\x80\x93(4), (b), 132 Stat. at 1962\xe2\x80\x9363 (establishing\nan advisory commission \xe2\x80\x9cin the executive branch\xe2\x80\x9d with legislative and executive appointees to produce reports and recommendations on the national security uses of artificial\nintelligence and machine learning); Evidence-Based Policymaking Commission Act of\n3\n\n4\n\n\x0cExecutive Branch Participation in the Cyberspace Solarium Commission\n\nTo carry out its mission, the Commission was authorized to exercise\ninvestigative functions. The Commission was able to hold hearings, take\ntestimony, receive evidence, and issue subpoenas requiring witness\ntestimony and document production. Id. \xc2\xa7 1652(g)(1)(A), 132 Stat. at\n2143; see also id. \xc2\xa7 1652(g)(1)(B), 132 Stat. at 2143. The statutes governing contempt of Congress were made applicable to failures to comply\nwith the Commission\xe2\x80\x99s subpoenas. Id. \xc2\xa7 1652(g)(1)(C), 132 Stat. at\n2143. Separately, executive agencies were instructed, \xe2\x80\x9cto the extent\nauthorized by law, [to] furnish such information, suggestions, estimates,\nand statistics\xe2\x80\x9d as are required for the Commission to carry out its duties.\nSee id. \xc2\xa7 1652(g)(3)(A)\xe2\x80\x93(B), 132 Stat. at 2143\xe2\x80\x9344; see also, e.g., id.\n\xc2\xa7 1652(g)(1)(A), 132 Stat. at 2143 (authorizing the Commission, \xe2\x80\x9cfor\nthe purpose of carrying out the provisions of this section,\xe2\x80\x9d to require by\nsubpoena testimony, books, records, correspondence, and documents as\nthe Commission or \xe2\x80\x9cdesignated subcommittee or designated member\nconsiders necessary\xe2\x80\x9d). In addition, the statute specified that the Secretary of Defense \xe2\x80\x9cshall\xe2\x80\x9d provide the Commission with nonreimbursable\nadministrative services, funds, staff, and facilities, id. \xc2\xa7 1652(g)(4)(A),\n132 Stat. at 2144, and that the DNI and the heads of other executive\nagencies \xe2\x80\x9cmay\xe2\x80\x9d give the Commission administrative services and staff,\nid. \xc2\xa7 1652(g)(4)(B), (C), 132 Stat. at 2144. See also id. \xc2\xa7 1652(h)(1)(B),\n132 Stat. at 2144 (authorizing the detailing of federal staff to the Commission).\nThe Commission was required to memorialize its recommendations in a\n\xe2\x80\x9cfinal report\xe2\x80\x9d to the congressional defense, intelligence, and homeland\nsecurity committees, as well as to the Secretary of Defense, the Secretary\nof Homeland Security, and the DNI. Id. \xc2\xa7 1652(k)(1), 132 Stat. at 2146.\nWithin 60 days of receiving the report, the Secretaries and the DNI were\neach to \xe2\x80\x9csubmit to the congressional intelligence committees and the\n\n2016, Pub. L. No. 114-140, \xc2\xa7\xc2\xa7 2, 3(a), 4, 130 Stat. 317, 317\xe2\x80\x9318 (2016) (establishing an\nadvisory commission \xe2\x80\x9cin the executive branch\xe2\x80\x9d with legislative and executive appointees\nto produce recommendations for amending federal agency data infrastructure, database\nsecurity, and statistical protocols); see also Matthew E. Glassman & Jacob R. Straus,\nCong. Research Serv., R40076, Congressional Commissions: Overview, Structure, and\nLegislative Considerations 10 (2017) (\xe2\x80\x9cIn some instances, the establishment clause will\nidentify the commission as \xe2\x80\x98established in the legislative branch.\xe2\x80\x99\xe2\x80\x9d).\n\n5\n\n\x0c44 Op. O.L.C. __ (Oct. 9, 2020)\n\ncongressional defense committees an assessment\xe2\x80\x9d of the report, including\n\xe2\x80\x9csuch comments\xe2\x80\x9d as each of the three officials \xe2\x80\x9cconsiders appropriate.\xe2\x80\x9d\nId. \xc2\xa7 1652(l), 132 Stat. at 2146. The original deadline for the report was\nSeptember 1, 2019, see id. \xc2\xa7 1652(k)(1), 132 Stat. at 2146, but Congress\nextended the deadline to April 30, 2020. National Defense Authorization\nAct for Fiscal Year 2020, Pub. L. No. 116-92, \xc2\xa7 1639, 133 Stat. 1198,\n1750 (2019). On March 11, 2020, the Commission made the report available to the public, in anticipation of its formal submission to Congress in\nApril. See Cyberspace Solarium Commission, Final Report (Mar. 2020),\nhttps://www.solarium.gov (last visited Oct. 9, 2020). The Commission\nwas to terminate within 120 days of the report\xe2\x80\x99s formal submission to the\ncongressional defense and intelligence committees. See FY 2019 NDAA\n\xc2\xa7 1652(k)(2)(A), 132 Stat. at 2146. During that 120-day period, the Commission was able to wind down its activities and provide testimony to\nCongress on its report. Id. \xc2\xa7 1652(k)(2)(B), 132 Stat. at 2146.\nII.\nA truly hybrid commission with Executive and Legislative Branch appointees creates separation of powers concerns because it lacks accountability to any single branch of government. As the Supreme Court has\nrecognized, \xe2\x80\x9c[t]he Constitution sought to divide the delegated powers of\nthe new federal government into three defined categories, legislative,\nexecutive and judicial, to assure, as nearly as possible, that each Branch\nof government would confine itself to its assigned responsibility.\xe2\x80\x9d INS v.\nChadha, 462 U.S. 919, 951 (1983); see also, e.g., Martin v. Hunter\xe2\x80\x99s\nLessee, 14 U.S. (1 Wheat.) 304, 329 (1816) (\xe2\x80\x9cThe object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial departments.\xe2\x80\x9d); Hayburn\xe2\x80\x99s Case,\n2 U.S. (2 Dall.) 408, 410 n.* (1792) (reporting the decision of the Circuit\nCourt for the District of New York, including Chief Justice Jay and Justice Cushing, which had observed \xe2\x80\x9c[t]hat by the Constitution of the United\nStates, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose,\nencroachments on either\xe2\x80\x9d (emphasis added)). In our tripartite constitutional structure, any commission performing federal functions must reside\nwithin a single one of the three branches of government.\n6\n\n\x0cExecutive Branch Participation in the Cyberspace Solarium Commission\n\nA.\nThis Office has long expressed constitutional concerns about hybrid\ncommissions, which occupy a \xe2\x80\x9cno-man\xe2\x80\x99s land between . . . two branches,\xe2\x80\x9d\nwith commission members who risk being unaccountable to either of the\npolitical branches. Memorandum for John R. Bolton, Assistant Attorney\nGeneral, Office of Legislative and Intergovernmental Affairs, from Douglas W. Kmiec, Deputy Assistant Attorney General, Office of Legal Counsel, Re: H.R. 3345, 99th Cong. 1st Sess., at 2 (Apr. 9, 1986); see also\nCongressional Incursions at 3\xe2\x80\x934 (describing such commissions as \xe2\x80\x9cinconsistent with the tripartite system of government established by the Framers of our Constitution\xe2\x80\x9d and detailing the Department\xe2\x80\x99s repeated\n\xe2\x80\x9cstrong[]\xe2\x80\x9d opposition to congressional creation of hybrid commissions\n(internal quotation marks omitted)). 5\nThe problems with hybrid commissions are two-fold. First, an entity\nwith members representing two branches is not fully accountable to any\ngovernmental authority. The constitutional separation of powers is designed to diffuse power among different federal actors to better protect\nliberty. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721 (1986) (recognizing that the \xe2\x80\x9cpurpose of separating and dividing the powers of government\xe2\x80\x9d was to \xe2\x80\x9c\xe2\x80\x98diffus[e] power the better to secure liberty\xe2\x80\x99\xe2\x80\x9d (alteration in\noriginal) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,\n635 (1952) (Jackson, J., concurring))). But \xe2\x80\x9c[t]he diffusion of power\ncarries with it a diffusion of accountability.\xe2\x80\x9d Free Enter. Fund v. Pub. Co.\nAccounting Oversight Bd., 561 U.S. 477, 497 (2010). To ensure that the\ngovernment remains responsive to the people, the constitutional separation of powers \xe2\x80\x9crequires that each branch maintain its separate identity,\nand that functions and responsibilities be clearly assigned among the\nseparate branches, so that each can be held accountable for its actions.\xe2\x80\x9d\nMemorandum for William Bradford Reynolds, Assistant Attorney General, Civil Rights Division, from Ralph W. Tarr, Acting Assistant Attor5 See, e.g., Statement on Signing a Bill Establishing a National Commission on Agricultural Trade and Export Policy (Aug. 30, 1984), 2 Pub. Papers of Pres. Ronald Reagan\n1211, 1211\xe2\x80\x9312 (1984) (urging that the commission \xe2\x80\x9cbe composed either entirely of\nmembers selected by the legislative branch, if it is to serve primarily legislative functions,\nor entirely of members appointed by the President, if it is to serve the executive branch\xe2\x80\x9d);\nStatement on Signing the Patent Law Amendments Act of 1984 (Nov. 9, 1984), 2 Pub.\nPapers of Ronald Reagan 1816, 1817 (1984) (same).\n\n7\n\n\x0c44 Op. O.L.C. __ (Oct. 9, 2020)\n\nney General, Office of Legal Counsel, Re: S. 519, 99th Cong. 1st Sess.,\nthe \xe2\x80\x9cFederal Employee Anti-Sex Discrimination in Compensation Act of\n1985\xe2\x80\x9d at 2 (July 2, 1985).\n\xe2\x80\x9cThe creation of a Commission that is not clearly legislative, judicial,\nor executive, tends to erode\xe2\x80\x9d this foundational restraint. Common Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248,\n251 (1989) (\xe2\x80\x9cCommon Legislative Encroachments\xe2\x80\x9d) (internal quotation\nmarks omitted). When a blended executive-legislative body ultimately\nreports to neither political branch, the public is left unable to determine\nwhere the blame for \xe2\x80\x9ca pernicious measure . . . ought really to fall.\xe2\x80\x9d See\nFree Enter. Fund, 561 U.S. at 498 (internal quotation marks omitted)\n(quoting The Federalist No. 70, at 476 (Alexander Hamilton) (J. Cooke\ned. 1961)). And \xe2\x80\x9c[w]hen citizens cannot readily identify the source of\nlegislation or regulation that affects their lives, Government officials can\nwield power without owning up to the consequences.\xe2\x80\x9d Dep\xe2\x80\x99t of Transp. v.\nAss\xe2\x80\x99n of Am. R.Rs., 575 U.S. 43, 57 (2015) (Alito, J., concurring). Because a branchless entity would undermine the accountability that the\nseparation of powers demands, the Constitution requires that every entity\nexercising the authority of the federal government be accountable to a\nsingle branch.\nSecond, once the nature of a hybrid commission is determined, that\nconstitutional location determines the roles that its executive and legislative members may play. To the extent that a commission exercises executive powers, for instance, agents of the Legislative Branch may not participate, even in an advisory capacity. See, e.g., Metro. Wash. Airports Auth.\nv. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276\n(1991) (\xe2\x80\x9cIf the power is executive, the Constitution does not permit an\nagent of Congress to exercise it.\xe2\x80\x9d); Buckley v. Valeo, 424 U.S. 1, 139\n(1976) (per curiam) (holding that congressional appointees may \xe2\x80\x9cperform\nduties only in aid of those functions that Congress may carry out by itself,\nor in an area sufficiently removed from the administration and enforcement of the public law\xe2\x80\x9d); FEC v. NRA Political Victory Fund, 6 F.3d 821,\n827 (D.C. Cir. 1993) (observing that even in a purely advisory role, the\npresence of ex officio congressional agents on an Executive Branch\ncommission violated the separation of powers); see also The Constitutional Separation of Powers Between the President and Congress, 20 Op.\nO.L.C. 124, 160 n.95 (1996) (\xe2\x80\x9cSeparation of Powers\xe2\x80\x9d) (\xe2\x80\x9c[D]esignating a\nmember of Congress to serve on a commission with any executive func8\n\n\x0cExecutive Branch Participation in the Cyberspace Solarium Commission\n\ntions, even in what was expressly labeled a ceremonial or advisory role,\nmay render the delegation of significant governmental authority to the\ncommission unconstitutional as a violation of the anti-aggrandizement\nprinciple.\xe2\x80\x9d (citing NRA Political Victory Fund, 6 F.3d at 827)); Common\nLegislative Encroachments, 13 Op. O.L.C. at 251\xe2\x80\x9352.\nAt the same time, if a commission is an arm of the Legislative Branch,\nthen Executive Branch members may participate in an advisory role but,\nin that capacity, they do not cease to be subject to the supervision of the\nPresident. See Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct.\n2183, 2197 (2020) (\xe2\x80\x9cThe entire \xe2\x80\x98executive Power\xe2\x80\x99 belongs to the President alone,\xe2\x80\x9d and \xe2\x80\x9clesser [executive] officers must remain accountable to\nthe President, whose authority they wield.\xe2\x80\x9d); see also, e.g., Constitutionality of the Direct Reporting Requirement in Section 802(e)(1) of the\nImplementing Recommendations of the 9/11 Commission Act of 2007, 32\nOp. O.L.C. 27, 31 (2008) (\xe2\x80\x9cDirect Reporting Requirement\xe2\x80\x9d) (\xe2\x80\x9c[S]tatutes\nthat interfere with the President\xe2\x80\x99s ability to supervise, directly or through\nsubordinate officials, the Executive Branch\xe2\x80\x99s communications with Congress raise serious constitutional concerns.\xe2\x80\x9d). As discussed below, the\nstructure of the Cyberspace Solarium Commission presented a number of\nconcerns about the roles Executive Branch members may play in the\nCommission, in light of its constitutional location.\nThus, the threshold question in evaluating the structure of a hybrid\ncommission is determining the branch in which the entity resides. This\napproach finds consistent support in our precedents. In Status of the\nCommission on Railroad Retirement Reform for Purposes of the Applicability of Ethics Laws, 13 Op. O.L.C. 285 (1989) (\xe2\x80\x9cRailroad Retirement\nReform Commission\xe2\x80\x9d), we considered the Railroad Retirement Reform\nCommission, whose members were appointed variously by the President,\ncongressional leaders, and the Comptroller General (an agent of Congress). Id. at 286. The commission was charged with submitting a report\nto Congress and to the President with legislative recommendations about\nthe railroad retirement system. Id. In view of the statute\xe2\x80\x99s dual-reporting\nrequirement, the Commission was \xe2\x80\x9cvested with \xe2\x80\x98[o]bligations to two\nbranches,\xe2\x80\x99\xe2\x80\x9d but the \xe2\x80\x9cpresence of such dual obligations\xe2\x80\x9d did not prevent its\n\xe2\x80\x9ccharacterization . . . as part of one branch.\xe2\x80\x9d Id. at 287 n.5 (quoting Bowsher, 478 U.S. at 746 (Stevens, J., concurring in the judgment)). The\ncommission\xe2\x80\x99s obligation to report to Congress \xe2\x80\x9cwithout any prior review\xe2\x80\x9d\nby the Executive Branch would raise \xe2\x80\x9cserious constitutional questions,\xe2\x80\x9d if\n9\n\n\x0c44 Op. O.L.C. __ (Oct. 9, 2020)\n\nthe commission fell within the Executive Branch. See id. at 287\xe2\x80\x9388. We\nthus construed the statute\xe2\x80\x99s dual-reporting requirement \xe2\x80\x9cas contemplating\nthat the Commission\xe2\x80\x99s report would be prepared principally for Congress\xe2\x80\x99\nbenefit\xe2\x80\x9d and concluded that the commission should be deemed to fall\noutside the Executive Branch for purposes of laws governing conflicts of\ninterest and financial disclosure. See id. at 289\xe2\x80\x9390.\nWe reached a similar conclusion with respect to the National Gambling\nImpact Study Commission, an advisory commission with six members\nappointed by Congress and three by the President. Applicability of 18\nU.S.C. \xc2\xa7 208 to National Gambling Impact Study Commission, 23 Op.\nO.L.C. 29, 29 (1999) (\xe2\x80\x9cNational Gambling Impact Study Commission\xe2\x80\x9d).\nWe emphasized that the commission performed only \xe2\x80\x9cinformationgathering and advisory functions, which need not be performed by the\nexecutive branch.\xe2\x80\x9d Id. at 30 n.2. And we concluded that, because a majority of the commissioners were congressionally appointed and the commission operated like a congressional committee, it was \xe2\x80\x9cpart of the\nlegislative branch.\xe2\x80\x9d See id. at 30 n.2, 35.\nIn yet another opinion, we considered the location of the Native Hawaiians Study Commission in order to determine whether the Hatch Act\napplied to its chairman. See Applicability of the Hatch Act to the Chairman of the Native Hawaiians Study Commission, 6 Op. O.L.C. 292, 294\n(1982) (\xe2\x80\x9cNative Hawaiians Study Commission\xe2\x80\x9d). The commission there\nconsisted solely of presidential appointees, but it had been initially funded\nby Senate appropriations and had been \xe2\x80\x9cestablished to advise Congress\nrather than the President.\xe2\x80\x9d Id. We recognized that \xe2\x80\x9ca commission may\nhave dual responsibilities\xe2\x80\x94as in this case, advisory to Congress, factfinding and reporting to the President\xe2\x80\x94without necessarily losing its\ncharacter as an executive entity.\xe2\x80\x9d Id. While finding that the structure\npresented a \xe2\x80\x9cdifficult question,\xe2\x80\x9d we concluded \xe2\x80\x9cthat the circumstances\nviewed as a whole point[ed] to the Commission as an entity within the\nExecutive Branch.\xe2\x80\x9d Id. at 295.\nFinally, on several occasions, this Office has considered the status of\ncommemorative commissions, which have \xe2\x80\x9crepresentatives of multiple\nbranches participating in ceremonial events,\xe2\x80\x9d but which also must exercise executive authority in the course of administering the events in question. Ronald Reagan Commission, 33 Op. O.L.C. at 195. Those commissions have included members from the Legislative and Judicial Branches,\n10\n\n\x0cExecutive Branch Participation in the Cyberspace Solarium Commission\n\nand in light of \xe2\x80\x9cample historical precedent,\xe2\x80\x9d we have accepted that \xe2\x80\x9c[i]t is\nnot unconstitutional for such commissions to perform advisory functions.\xe2\x80\x9d\nId. at *2 & n.1. But to the extent that these commissions perform executive functions\xe2\x80\x94like \xe2\x80\x9cexercising operational control over a statutorily\nprescribed national commemoration\xe2\x80\x9d\xe2\x80\x94then the participation of nonexecutive agents must end. Id. at *3.\nThus, in 1984, we advised that the Commission on the Bicentennial of\nthe Constitution, whose members included the Chief Justice and congressional leaders, should establish an \xe2\x80\x9cexecutive committee composed of all\nnon-advisory members of the Commission . . . legally responsible for\ndischarging the purely executive functions of the Commission\xe2\x80\x9d to accommodate separation of powers concerns. Appointments to the Commission on the Bicentennial of the Constitution, 8 Op. O.L.C. 200, 207 (1984)\n(\xe2\x80\x9cBicentennial Commission\xe2\x80\x9d). In 2010, we took the same course in advising that the Reagan Centennial Commission\xe2\x80\x94a majority of which comprised members of Congress\xe2\x80\x94could carry out the executive functions of\nplanning and developing commemorative activities to honor President\nReagan only by establishing a separate executive committee consisting\nsolely of the Executive Branch members of the commission. See Memorandum for Robert F. Bauer, Counsel to the President, from Martin S.\nLederman, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: Administration of the Ronald Reagan Centennial Commission at 3\xe2\x80\x934\n(May 7, 2010) (\xe2\x80\x9cLederman Memo\xe2\x80\x9d). Following the approach of Bicentennial Commission, 8 Op. O.L.C. at 207, we construed the statute itself as\n\xe2\x80\x9climit[ing] the exercise of the purely executive functions of the Commission to the five presidentially appointed commissioners\xe2\x80\x9d who would\nconstitute the executive committee. Lederman Memo at 3 (internal quotation marks and citation omitted). With this executive committee in place,\nwe advised that the full commission, with its majority of congressional\nappointees, was \xe2\x80\x9climited to giving advice.\xe2\x80\x9d Ronald Reagan Commission,\n33 Op. O.L.C. at 200. In so doing, we essentially divided the Reagan\nCentennial Commission into two entities\xe2\x80\x94one executive (consisting\nsolely of Executive Branch representatives) and one advisory (consisting\nof both Executive Branch and Legislative Branch representatives). We\ntherefore resolved the separation of powers concerns presented by such a\nceremonial commission by cabining the functions of the full commission\nin a manner consistent with its implicit location in the Legislative Branch.\nSee also Administration of the John F. Kennedy Centennial Commission,\n11\n\n\x0c44 Op. O.L.C. __ (Oct. 9, 2020)\n\n41 Op. O.L.C. __, at *1 (Jan. 10, 2017) (recommending that the John F.\nKennedy Centennial Commission adopt the same \xe2\x80\x9cstructure used to carry\nout the functions of the Ronald Reagan Centennial Commission\xe2\x80\x9d).\nPrevious practice therefore buttresses our conclusion: Every seemingly\nhybrid commission still must be situated in one and only one branch of\nour tripartite constitutional structure. 6\nB.\nWe turn then to the Cyberspace Solarium Commission. Generally,\n\xe2\x80\x9c[t]he status within the government of an office created by statute is a\nmatter of statutory interpretation.\xe2\x80\x9d Railroad Retirement Reform Commission, 13 Op. O.L.C. at 285. But constitutional constraints prevent Congress from assigning purely executive duties to a legislative entity. See\nBuckley, 424 U.S. at 138\xe2\x80\x9339. Because the FY 2019 NDAA did not specify\nwhere the Commission would reside, we consider the statutory context,\nthe method of appointment of its members, and the powers that it exercises. Here, the relevant statutory indicia suggested that the Commission was\nlocated within the Legislative Branch.\n\n6\n\nSee also Statement on Signing the National Defense Authorization Act for Fiscal\nYear 2020, 2019 Daily Comp. Pres. Doc. No. 880, at 3 (Dec. 20, 2019) (observing with\nrespect to a number of provisions that \xe2\x80\x9cestablish[ed], reauthorize[d] or add[ed] to the\nauthorities of hybrid commissions or boards,\xe2\x80\x9d including the Cyberspace Solarium\nCommission, that commissions with Legislative Branch and Executive Branch appointees \xe2\x80\x9cseparate from the executive branch\xe2\x80\x9d are simply \xe2\x80\x9clegislative branch entities\xe2\x80\x9d);\nStatement on Signing the John S. McCain National Defense Authorization Act for Fiscal\nYear 2019, 2018 Daily Comp. Pres. Doc. No. 533, at 2 (Aug. 13, 2018) (\xe2\x80\x9cFY 2019\nNDAA Signing Statement\xe2\x80\x9d) (\xe2\x80\x9cWhile I welcome the creation of this commission, these\nlegislative branch appointees preclude it, under the separation of powers, from being\nlocated in the executive branch. My Administration accordingly will treat the commission as an independent entity, separate from the executive branch.\xe2\x80\x9d); Statement on\nSigning the National Defense Authorization Act for Fiscal Year 2017, 2016 Daily Comp.\nPres. Doc. No. 863, at 3 (Dec. 23, 2016) (\xe2\x80\x9cBecause the commission contains legislative\nbranch appointees, it cannot be located in the executive branch consistent with the\nseparation of powers.\xe2\x80\x9d); Statement on Signing the Alyce Spotted Bear and Walter\nSoboleff Commission on Native Children Act, 2016 Daily Comp. Pres. Doc. No. 695, at 1\n(Oct. 14, 2016) (\xe2\x80\x9cWhile I welcome the creation of this Commission, it cannot be located\nin the executive branch consistent with the separation of powers because it includes\nlegislative branch appointees[.]\xe2\x80\x9d).\n\n12\n\n\x0cExecutive Branch Participation in the Cyberspace Solarium Commission\n\nMultiple factors supported this determination. First, the Commission\xe2\x80\x99s\nmembership structure suggested that it was located in the Legislative\nBranch, because \xe2\x80\x9cthe majority of the Commissioners were congressionally\nappointed,\xe2\x80\x9d National Gambling Impact Study Commission, 23 Op. O.L.C.\nat 30 n.2; see also FY 2019 NDAA \xc2\xa7 1652(b), 132 Stat. at 2141. The\npresence of members of Congress on the Commission counseled strongly\nagainst treating it as an Executive Branch entity. See NRA Political Victory Fund, 6 F.3d at 827 (holding that two congressional agents could not\nserve, even as non-voting members, on the eight-member Federal Election\nCommission). Members of Congress may neither serve as officers of the\nUnited States, see U.S. Const. art. I, \xc2\xa7 6, cl. 2, nor appoint such officers,\nsee id. art. II, \xc2\xa7 2, cl. 2. But even for commissions whose members lack\nthe authority of officers of the United States\xe2\x80\x94either because the Legislative Branch appointees perform only advisory roles or the commission\nitself lacks significant authority under the laws of the United States\xe2\x80\x94\nlocating a commission in the Executive Branch if Congress appoints a\nmajority of the members would raise concerns of congressional aggrandizement and the blurring of the separation of powers. See, e.g., Separation of Powers, 20 Op. O.L.C. at 160 n.95. The fact that members of\nCongress appoint a majority of the members of the Commission thus\ncounseled strongly in favor of the conclusion that it is a Legislative\nBranch entity.\nSecond, the nature of the Commission\xe2\x80\x99s powers supported this conclusion. The Commission\xe2\x80\x99s principal duty was to prepare a report that \xe2\x80\x9cdefine[d] the core objectives and priorities\xe2\x80\x9d of national cyber policy and\n\xe2\x80\x9cconsider[ed] possible structures and authorities that need to be established, revised, or augmented within the Federal Government\xe2\x80\x9d to defend\nthe United States from cyber-attacks. FY 2019 NDAA \xc2\xa7 1652(f )(1), (7),\n132 Stat. at 2142\xe2\x80\x9343. The Commission authored and submitted the report\nto Congress without any review from the Executive Branch, other than the\nfour Executive Branch commissioners, who made up a minority of the\nCommission\xe2\x80\x99s fourteen members. Id. \xc2\xa7 1652(k)(1), 132 Stat. at 2146. The\nprocedure for publication and assessment of the Commission\xe2\x80\x99s report also\nsuggested that the report was prepared \xe2\x80\x9cprincipally for Congress\xe2\x80\x99 benefit,\xe2\x80\x9d see Railroad Retirement Reform Commission, 13 Op. O.L.C. at 289.\nWhile the FY 2019 NDAA required submission of the Commission\xe2\x80\x99s final\nreport to several Executive Branch officials in addition to multiple congressional committees, see FY 2019 NDAA \xc2\xa7 1652(k)(1), 132 Stat. at\n13\n\n\x0c44 Op. O.L.C. __ (Oct. 9, 2020)\n\n2146, the executive officials were provided with the report merely to\nfacilitate their own further responses to Congress. See id. \xc2\xa7 1652(l), 132\nStat. at 2146. Both sets of recommendations\xe2\x80\x94the Commission\xe2\x80\x99s report,\nand the analysis of the executive officials required to respond\xe2\x80\x94were\ntherefore ultimately for Congress\xe2\x80\x99s consideration. And any testimony or\nbriefing on the Commission\xe2\x80\x99s report was also to be provided to Congress,\nsee id. \xc2\xa7 1652(k)(2)(B), 132 Stat. at 2146, again indicating that its recommendations were directed toward the Legislative Branch. In this way,\nthe Commission was designed to \xe2\x80\x9cfunction[] much as a congressional\ncommittee does when conducting an investigation or drafting a legislative\nproposal based on the information it has gathered.\xe2\x80\x9d National Gambling\nImpact Study Commission, 23 Op. O.L.C. at 35.\nThe Commission exercised no purely executive powers. Indeed, the\nCommission was expressly given the subpoena power of an agent of\nCongress; the FY 2019 NDAA authorized the Commission to issue subpoenas and provided that any actions in contempt of its subpoenas should\nbe governed by the statutory procedures applicable to contempt of Congress, 2 U.S.C. \xc2\xa7\xc2\xa7 192\xe2\x80\x93194. FY 2019 NDAA \xc2\xa7 1652(g)(1)(C). We have\npreviously advised that \xe2\x80\x9c[i]f Congress intends [a] Commission to be part\nof the Executive Branch,\xe2\x80\x9d then we would expect it to exercise the kind of\ncivil enforcement power given to executive agencies, rather than the\ncontempt powers of Congress. See Proposed Commission on Deregulation\nof International Ocean Shipping, 7 Op. O.L.C. 202, 204 (1983). The\nnature of the Commission\xe2\x80\x99s subpoena powers further confirmed that it\nwas a legislative entity.\nFinally, the FY 2019 NDAA exempted the Commission from the Federal Advisory Committee Act (\xe2\x80\x9cFACA\xe2\x80\x9d) and Freedom of Information Act\n(\xe2\x80\x9cFOIA\xe2\x80\x9d) requirements that typically apply to Executive Branch advisory\ncommissions. FY 2019 NDAA \xc2\xa7 1652(m), 132 Stat. at 2146. Ordinarily,\n\xe2\x80\x9cany committee\xe2\x80\x9d established by statute \xe2\x80\x9cin the interest of obtaining advice\nor recommendations for the President or one or more agencies or officers\nof the Federal Government\xe2\x80\x9d is subject to FACA. 5 U.S.C. app. \xc2\xa7 3(2).\nFOIA likewise applies to most executive agencies. 5 U.S.C. \xc2\xa7 552; id.\n\xc2\xa7 551(1). Congress\xe2\x80\x99s choice to exempt the Commission from these requirements, while not dispositive, bore upon the interpretive question.\nNotably, in the very same act in which it created the Commission, Congress expressly located another advisory commission \xe2\x80\x9cin the executive\nbranch\xe2\x80\x9d without excepting it from FACA and FOIA requirements. FY\n14\n\n\x0cExecutive Branch Participation in the Cyberspace Solarium Commission\n\n2019 NDAA \xc2\xa7 1051(a) (National Security Commission on Artificial\nIntelligence). That contrast provided an additional indication of the Commission\xe2\x80\x99s location in the Legislative Branch.\nFor the reasons set forth above, we concluded, and advised, that the\nCommission should be viewed as a Legislative Branch entity.\nIII.\nOur conclusion that the Commission was a Legislative Branch entity\nhad separation of powers implications for the service of its Executive\nBranch members. 7 We advised that the Executive Branch officials serving\non the Commission should act with one unified voice, subject to executive\nsupervision, in advising the Commission. Although robust participation\non a commission through the provision of advice, information, and staff\nand office resources is perfectly appropriate when that work promotes\ncomity and is consistent with the interests of the Executive Branch, we\nadvised that individual executive members should not participate in\nformal acts of the legislative commission, such as individualized voting or\nsigning the Commission\xe2\x80\x99s final report; that they must preserve Executive\nBranch confidentiality interests when advising the Commission; and that\nthey should comply with commission requests to share Executive Branch\nresources, outside of the statutory process, only to the extent that the\nprovision of resources would be consistent with Executive Branch interests.\nThe appointment by Congress of executive branch officers to a legislative entity presents a different constitutional question from when Congress vests the President with the\npower to appoint officials to serve on legislative commissions. See, e.g., Removal of\nMembers of the Commission on Federal Laws for the Northern Mariana Islands, 7 Op.\nO.L.C. 95, 102 (1983) (noting that, \xe2\x80\x9c[e]ven if we grant that the Commission is an arm of\nCongress,\xe2\x80\x9d the President could still remove its members at will if Congress chose to vest\nappointment power in the President). Here, we addressed the separation of powers\nconcerns that arose when a statute directed presidential appointees with pre-existing\nexecutive branch ties to serve ex officio in a position within the Legislative Branch. We\ndid not disturb the long-standing historical practice of the President\xe2\x80\x99s appointing individuals to offices serving the entire Legislative Branch. See, e.g., Constitutionality of Bill\nCreating an Office of Congressional Legal Counsel, 1 Op. O.L.C. Supp. 384, 389 (1976);\nsee also 31 U.S.C. \xc2\xa7 703(a)(1) (\xe2\x80\x9cThe Comptroller General and Deputy Comptroller\nGeneral are appointed by the President, by and with the advice and consent of the Senate.\xe2\x80\x9d); 2 U.S.C. \xc2\xa7 1801(a)(1) (\xe2\x80\x9cThe Architect of the Capitol shall be appointed by the\nPresident by and with the advice and consent of the Senate for a term of 10 years.\xe2\x80\x9d).\n7\n\n15\n\n\x0c44 Op. O.L.C. __ (Oct. 9, 2020)\n\nThe Executive Branch officers did not serve on the Commission as\nindependent actors, but as representatives of one Executive Branch,\nwhich is subject to ultimate supervision by the President. See U.S.\nConst. art. II, \xc2\xa7 1, cl. 1 (vesting the President with \xe2\x80\x9c[t]he executive\nPower\xe2\x80\x9d (emphasis added)); id. art. II, \xc2\xa7 3 (charging the President with\nthe duty to \xe2\x80\x9ctake Care that the laws be faithfully executed\xe2\x80\x9d); see also,\ne.g., Seila Law, 140 S. Ct. at 2197 (\xe2\x80\x9cThe entire \xe2\x80\x98executive Power\xe2\x80\x99 belongs to the President alone\xe2\x80\x9d); Myers v. United States, 272 U.S. 52, 135\n(1926) (highlighting that the President \xe2\x80\x9cmay properly supervise and\nguide\xe2\x80\x9d subordinate officers \xe2\x80\x9cin order to secure . . . unitary and uniform\nexecution of the laws\xe2\x80\x9d); Printz v. United States, 521 U.S. 898, 922\n(1997) (\xe2\x80\x9cThe insistence of the Framers upon unity in the Federal Executive\xe2\x80\x94to ensure both vigor and accountability\xe2\x80\x94is well known.\xe2\x80\x9d); Clinton v. Jones, 520 U.S. 681, 712 (1997) (Breyer, J., concurring) (\xe2\x80\x9c[The\nFounders] sought to encourage energetic, vigorous, decisive, and speedy\nexecution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the\nother branches, the Constitution divides among many.\xe2\x80\x9d); Direct Reporting Requirement, 32 Op. O.L.C. at 31 (\xe2\x80\x9c[S]tatutes that interfere with the\nPresident\xe2\x80\x99s ability to supervise, directly or through subordinate officials, the Executive Branch\xe2\x80\x99s communications with Congress raise\nserious constitutional concerns.\xe2\x80\x9d). Therefore, in serving on a Legislative\nBranch entity, Executive Branch members on the Commission remained\nagents of the Executive Branch.\nWe addressed a somewhat analogous situation in connection with the\ndetail of Executive Branch law enforcement agents to congressional\ncommittees. There, we observed that when executive officials work for a\ncongressional committee, \xe2\x80\x9c[t]he pertinent issue . . . is whether the President\xe2\x80\x99s ability to supervise his subordinates in the performance of their\nexecutive branch functions is unconstitutionally impaired.\xe2\x80\x9d Detail of Law\nEnforcement Agents to Congressional Committees, 12 Op. O.L.C. 184,\n186 (1988) (\xe2\x80\x9cDetail of Law Enforcement Agents\xe2\x80\x9d). And we warned that\ncongressional details potentially place executive officials \xe2\x80\x9cin the difficult\nposition of serving two masters with conflicting interests\xe2\x80\x94the legislative\nand executive branches.\xe2\x80\x9d Id. at 184. To counteract these concerns, we\nadvised that the Executive Branch members on detail could perform \xe2\x80\x9conly\nnon-law enforcement, advisory functions,\xe2\x80\x9d and even while performing\nthose functions, they should \xe2\x80\x9cfaithfully defend the interests of the execu16\n\n\x0cExecutive Branch Participation in the Cyberspace Solarium Commission\n\ntive branch\xe2\x80\x9d and preserve the confidentiality of Executive Branch information. See id. at 187\xe2\x80\x9388.\nSo too here. In practice, the principle that Executive Branch officials\nmust advance Executive Branch interests limited their participation in the\nCommission\xe2\x80\x99s work in several ways. First, the Executive Branch officials\ncharged with assessing the Commission\xe2\x80\x99s final report were advised do so\ncollectively, or at least in coordination with each other, rather than\nproviding independent assessments in their separate capacities. And\nbecause members of the Commission were expected to cast their votes\nindividually, we advised that the Executive Branch members should not\nvote on the final report or on commission decisions to issue subpoenas in\nthe Commission\xe2\x80\x99s investigative capacity. Although the Executive Branch\nmembers could theoretically have adopted and advanced common positions with respect to matters on which they were expected to vote, the\nneed for the Commission to release its report promptly made it impracticable for them to engage in the kinds of consultations necessary to do so.\nThis limitation, however, did not necessarily preclude Executive\nBranch members from robust participation in the formulation of the\nreport. Just as Executive Branch officials may perform \xe2\x80\x9cadvisory or\nresearch\xe2\x80\x9d functions while on detail to a congressional committee, Detail\nof Law Enforcement Agents, 12 Op. O.L.C. at 186, they could advise and\nprovide information, expertise, and substantial resources to the Commission. But such input had to be consistent with the Executive Branch\xe2\x80\x99s\nunderstanding of its own interests. And any contributions to, and assessments of, the Commission\xe2\x80\x99s report had to be subject to the supervision of\nothers in the Executive Branch. Cf. Separation of Powers, 20 Op. O.L.C.\nat 174\xe2\x80\x9375 (objecting to requirements that reports be simultaneously\nsubmitted to the Executive and Legislative Branches, because such requirements \xe2\x80\x9cincrease congressional leverage on the President and other\nofficials of the executive branch\xe2\x80\x9d and thus potentially \xe2\x80\x9cinterfer[e] with the\nPresident\xe2\x80\x99s fulfillment of his obligations under the Take Care Clause\xe2\x80\x9d).\nWe therefore advised that the Executive Branch members could serve an\nadvisory role and articulate a uniform position on the Commission\xe2\x80\x99s\nwork, but they should not formally vote or sign the legislative commission\xe2\x80\x99s final report. We further advised that the Executive Branch officers\nassigned the statutory role of providing assessments of the Commission\xe2\x80\x99s\nreport to Congress, see FY 2019 NDAA \xc2\xa7 1652(l), 132 Stat. at 2146, did\nnot act in their individual capacities, but rather remained subject to the\n17\n\n\x0c44 Op. O.L.C. __ (Oct. 9, 2020)\n\nordinary mechanisms by which the President supervises and coordinates\nthe position of the Executive Branch.\nIn addition, we advised that all Executive Branch members and staff\nshould maintain the confidentiality of Executive Branch information when\nsharing their information and expertise with the Commission. Executive\nagencies should treat a legislative commission\xe2\x80\x99s requests for confidential\nExecutive Branch information in the same way that the Executive Branch\ngenerally responds to requests for information from Congress. Like a\ncongressional committee, the Commission was empowered to obtain the\ninformation necessary for its work through hearings, voluntary requests,\nand subpoenas. See id. \xc2\xa7 1652(g)(1)(A)\xe2\x80\x93(C), 132 Stat. at 2143. Executive\nagencies should similarly seek to accommodate legitimate requests consistent with the established accommodation process. See, e.g., Am. Tel. &\nTel. Co., 567 F.2d at 127 (requiring each branch to \xe2\x80\x9cseek optimal accommodation through a realistic evaluation of [their respective] needs . . . in\nthe particular fact situation\xe2\x80\x9d); Attempted Exclusion of Agency Counsel\nfrom Congressional Depositions, 43 Op. O.L.C. __, at *19 (May 23,\n2019) (describing \xe2\x80\x9cthe constitutional balance\xe2\x80\x9d of providing Congress with\ninformation essential to oversight while preserving Executive Branch\nconstitutional prerogatives); Authority of the Department of Health and\nHuman Services to Pay for Private Counsel to Represent an Employee\nBefore Congressional Committees, 41 Op. O.L.C. __, at *5 n.6 (Jan. 18,\n2017); Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 159 (1989); see also Trump v. Mazars USA,\nLLP, 140 S. Ct. 2019, 2031 (2020) (referring to this practice with approval and noting ruefully that \xe2\x80\x9cCongress and the President [had] maintained\nthis tradition of negotiation and compromise\xe2\x80\x94without the involvement of\nthis Court\xe2\x80\x94until the present dispute\xe2\x80\x9d). And while the Commission may\nhave had a legitimate need to obtain classified or sensitive national security information for its work, its requests needed to be measured like any\nother Legislative Branch request for sensitive information, and they\nremained subject to the President\xe2\x80\x99s ultimate control over such information. See, e.g., Dep\xe2\x80\x99t of the Navy v. Egan, 484 U.S. 518, 527 (1988).\nFinally, Executive Branch entities were advised that they should treat\nthe FY 2019 NDAA\xe2\x80\x99s provisions requiring them to provide administrative\nassistance to the Commission (in the form of resources such as office\nspace, computer facilities, and staff ) as discretionary. Congress, of\ncourse, may appropriate funds to itself for the performance of its duties\n18\n\n\x0cExecutive Branch Participation in the Cyberspace Solarium Commission\n\nand the support of its agents. The anti-aggrandizement principle of the\nseparation of powers, however, prohibits a congressional body from using\nany means other than the enactment of legislation to order the Executive\nBranch to execute legislation. See Bowsher, 478 U.S. at 733 (\xe2\x80\x9c[O]nce\nCongress makes it choice in enacting legislation, its participation ends.\xe2\x80\x9d).\nAs a Legislative Branch entity, the Commission could not be given the\npower to compel Executive Branch departments to provide office space,\nadministrative support, and supplies on a nonreimbursable basis, see FY\n2019 NDAA \xc2\xa7 1652(g)(4), 132 Stat. at 2144. 8 See, e.g., Letter for Heidi\nHeitkamp & Lisa Murkowski, U.S. Senate, from Stephen E. Boyd, Assistant Attorney General, Office of Legislative Affairs, Re: Implementation\nof the Alyce Spotted Bear and Walter Soboleff Commission on Native\nChildren at 2 (Aug. 10, 2018) (\xe2\x80\x9cIn order to avoid a constitutional issue,\nthe Department will treat as permissive the directives to provide administrative support and detailees[.]\xe2\x80\x9d). Accordingly, we advised that the Executive Branch should provide the Commission with Executive Branch resources\xe2\x80\x94such as office space, access to computer networks, and e-mail\naddresses\xe2\x80\x94only if it concluded that providing access to a resource would\nsufficiently advance Executive Branch interests to outweigh any potential\nrisks from the resulting commingling of executive and legislative resources.\nMore specifically, we advised that the sharing of Executive Branch\ncomputer networks or the use of Executive Branch e-mail addresses to\nconduct commission business should be done in a manner that would not\n8 Several of the FY 2019 NDAA provisions providing for commission support used\nthe mandatory \xe2\x80\x9cshall,\xe2\x80\x9d rather than the discretionary \xe2\x80\x9cmay.\xe2\x80\x9d See, e.g., FY 2019 NDAA\n\xc2\xa7 1652(g)(3)(B), 132 Stat. at 2144 (providing that executive entities \xe2\x80\x9cshall, to the extent\nauthorized by law, furnish\xe2\x80\x9d information to the Commission (emphasis added)); id.\n\xc2\xa7 1652(g)(4)(A), 132 Stat. at 2144 (\xe2\x80\x9cThe Secretary of Defense shall provide to the\ncommission, on a nonreimbursable basis, such administrative services, funds, staff,\nfacilities, and other support services as are necessary for the performance of the Commission\xe2\x80\x99s duties[.]\xe2\x80\x9d (emphases added)); id. \xc2\xa7 1652(g)(4)(D), 132 Stat. at 2144 (\xe2\x80\x9cThe Commission shall receive the full and timely cooperation of any official, department, or\nagency of the United States Government whose assistance is necessary, as jointly determined by the [Commission] co-chairs[.]\xe2\x80\x9d (emphases added)). But these provisions nonetheless authorized officials to exercise some judgment in determining whether certain\nresources would be made available, based on an analysis of whether the support was\n\xe2\x80\x9cnecessary\xe2\x80\x9d or \xe2\x80\x9cauthorized by law.\xe2\x80\x9d To the extent that those provisions denied such\ndiscretion, they were required to yield to constitutional separation of powers principles.\n\n19\n\n\x0c44 Op. O.L.C. __ (Oct. 9, 2020)\n\nsuggest an Executive Branch imprimatur. And if administrative assistance\nwas to take the form of detailing personnel to the Commission, executive\nagencies were encouraged to consider whether the Executive Branch\nbenefits to be gained by the personnel\xe2\x80\x99s service to the Commission would\nbe sufficiently significant to outweigh any potential confidentiality or\naccountability considerations raised by their service to a legislative entity.\nSee Detail of Law Enforcement Agents, 12 Op. O.L.C. at 185 (providing\nthat, in detailing law enforcement agents to congressional committees on\na voluntary basis, the Department should consider \xe2\x80\x9cwhether the benefits\nto be gained by the law enforcement agencies are sufficiently extraordinary to outweigh the separation of powers and ethical concerns raised by\nthe detail\xe2\x80\x9d).\nIV.\nFor the reasons set forth above, we concluded that the Commission had\nto be located within one branch of the tripartite federal constitutional\nstructure. In addition, we advised that the statutory structure and context\nindicated that the Commission was most appropriately viewed as a Legislative Branch entity. Accordingly, as a constitutional matter, the Executive Branch members of the Commission were limited in the ways they\ncould participate in the Commission\xe2\x80\x99s work; they were required to perform their commission responsibilities as Executive Branch representatives, consistent with the Executive Branch\xe2\x80\x99s confidentiality and policy\ninterests.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n20\n\n\x0c'


b'Novem ber 3, 1977\n\n77-62\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nRichard Helms\xe2\x80\x99 Eligibility Under 5 U.S.C. \xc2\xa7 8314 To\nReceive an Annuity or Retired Pay\n\nThis memorandum opinion is to confirm our oral opinion that Rich\xc2\xad\nard Helms, former Director of the Central Intelligence Agency (CIA)\nand an ambassador, will not be barred by 5 U.S.C. \xc2\xa7 8314 from receiv\xc2\xad\ning an annuity or retired pay on the basis of his Federal service by\nvirtue of his plea o f nolo contendere to tw o counts of violating 2 U.S.C.\n\xc2\xa7192 in connection with appearances before the Senate Foreign Rela\xc2\xad\ntions Committee on February 7 and M arch 6, 1973.\nBased on staff discussions and our reading of the relevant transcripts,\nour understanding of the circumstances surrounding Mr. Helms\xe2\x80\x99 testi\xc2\xad\nmony is as follows:\nHe appeared before the committee in open session on February. 5,\n1973, in connection with the committee\xe2\x80\x99s consideration of his nomina\xc2\xad\ntion as Ambassador to Iran. He was then requested to appear in execu\xc2\xad\ntive session on February 7 so that the committee could question him in\nthree areas: recently published allegations that the CIA had provided\ntraining to local police forces; CIA involvement with the Watergate\naffair;* and CIA relations w ith multinational corporations, particularly\nregarding the International Telephone & Telegraph Corporation (ITT)\nand the 1970 election that brought Salvador Allende to power in Chile.\nA t the February 7 hearing, Mr. Helms was asked questions relating,\ninter alia, to domestic activities of the CIA, the relationship of W ater\xc2\xad\ngate defendants to the CIA, the Agency\xe2\x80\x99s Domestic Contact Service,\nand the C IA \xe2\x80\x99s relationship to other Government agencies. However,\nthe charge of a violation of 2 U.S.C. \xc2\xa7 192 in connection wih the\nFebruary 7 hearing stems from Mr. Helms\xe2\x80\x99 refusal to answer questions\nrelating to his knowledge of the C IA \xe2\x80\x99s attempts in September and\nOctober of 1970 to foment a coup in Chile, his knowledge of the C IA \xe2\x80\x99s\nfinancing o f groups working against Allende\xe2\x80\x99s accession to the Presi\xc2\xad\ndency of Chile, and his knowledge of the CIA\xe2\x80\x99s efforts to influence the\n252\n\n\x0cactions of certain U.S. multinational corporations to create economic\npressures in order to decrease the likelihood of Allende\xe2\x80\x99s accession.\nThe March 6 hearing was held in large part for the benefit of the\ncommittee\xe2\x80\x99s Subcommittee on Multinational Corporations, which was\nstudying the relationship of multinational corporations to the foreign\npolicy of the United States, although Chairman Fulbright indicated that\nmuch of the questioning would be of interest to members of the full\ncommittee as well. Mr. Helms\xe2\x80\x99 testimony related primarily to CIA\nactivities in connection with the 1970 Chilean election, including: con\xc2\xad\ntacts between CIA and ITT officials; the nature of U.S. policy in 1970\nregarding the election; whether fomenting a coup or applying economic\npressures through private companies would have been consistent with\nU.S. policy relating to Chile; whether the Forty Committee had author\xc2\xad\nized certain activities to influence the outcome of the election; and\ngenerally whether the CIA had taken measures to prevent Allende\xe2\x80\x99s\nelection.1 Mr. Helms is charged with failing accurately and fully to\nanswer (and thereby refusing to answer) questions relating to his\nknowledge of these matters.\nSection 8314(a) of Title 5, United States Code, provides that a Feder\xc2\xad\nal annuity or retired pay may not be paid to an individual (or his\nsurvivor or beneficiary) who:\nrefused or refuses, or knowingly and willfully failed or fails, to\nappear, testify, or produce a book, paper, record, or other docu\xc2\xad\nment, relating to his service as an employee, before a Federal\ngrand jury, court of the United States, court-martial, or congres\xc2\xad\nsional committee, in a proceeding concerning\xe2\x80\x94\n(1) his past or present relationship with a foreign govern\xc2\xad\nment; or\n(2) a matter involving or relating to an interference with or\nendangerment of, or involving or relating to a plan or attempt\nto interfere with or endanger, the national security or defense\nof the United States.\nIn our opinion, the ineligibility imposed by this section is inapplicable\nto Mr. Helms\xe2\x80\x99 refusal to testify at the 1973 hearings.\nI\nAlthough its language is a bit ambiguous, we believe that \xc2\xa7 8314 is on\nits face inapplicable in the present situation. Neither committee hearing\ncould reasonably be characterized as a proceeding concerning Mr.\nHelms\xe2\x80\x99 \xe2\x80\x9cpast or present relationship with a foreign government.\xe2\x80\x9d Fairly\nread, the quoted phrase seemingly refers to disloyal or subversive\nrelationships with foreign governments, not contacts that may arise in\nthe course of the individual\xe2\x80\x99s official duties. See Part II and III, infra.\nWe are unaware of any suggestions that a purpose of either the Febru\xc2\xad\n1 There were also several questions relating to Cuba and certain other CIA operations,\nbut the Chilean election was the major topic o f discussion at the March 6 hearing.\n\n253\n\n\x0cary 7 or the M arch 6 hearing was to examine Mr. Helms\xe2\x80\x99 loyalty to the\nUnited States or any subversive relationships he may have had with\nforeign governments.\nThe second type of proceeding mentioned in \xc2\xa78314 is that concern\xc2\xad\ning an \xe2\x80\x9cinterference with o r endangerment of . . . the national security\nor defense of the United States.\xe2\x80\x9d Read broadly, the quoted phrase\ncould conceivably be read to cover the present situation. The question\xc2\xad\ning of Mr. Helms did relate to the national security and defense of the\nUnited States in a general way; intelligence and other operations of the\nCIA inevitably pertain to national security and defense. Moreover, the\nprimary focus of the questioning, especially during the March 6 hear\xc2\xad\ning, concerned an important element of U.S. foreign policy, i.e., the\nNation\xe2\x80\x99s interest and involvement in the Chilean election, and the\nparticipation of IT T and other U.S. corporations in the formulation and\nimplementation of that policy. In other contexts, the phrase \xe2\x80\x9cnational\nsecurity\xe2\x80\x9d has been interpreted to encompass ordinary foreign policy\nconsiderations as well as the national defense. See, e.g., Executive Order\n11652, \xc2\xa71 (classification Executive order). Finally, the committee\xe2\x80\x99s\noverall concern with the effect o f multinational corporations on U.S.\nforeign policy could be thought to relate to adverse effects on national\nsecurity or defense in a broad sense, if such corporations were found to\nhave an overall weakening effect on the Nation\xe2\x80\x99s position. Thus, it\ncould be argued that the hearings related to a possible \xe2\x80\x9cinterference\nwith . . . the national security\xe2\x80\x9d to the extent that the committee sought\nto determine whether IT T unduly altered U.S. policy in Chile from\nwhat it might otherwise have been or whether the CIA ignored or\ntransgressed and thereby \xe2\x80\x9cinterfered\xe2\x80\x9d with U.S. policy regarding Chile.\nHowever, we believe that this would be a strained reading of \xc2\xa7 8314\nin the present setting. When the term \xe2\x80\x9cinterference\xe2\x80\x9d is read in conjunc\xc2\xad\ntion with the word \xe2\x80\x9cendangerment,\xe2\x80\x9d it would seem that \xc2\xa7 8314(a)(2),\nlike \xc2\xa7 8314(a)(1), should be read to refer to activities of a disloyal or\nsubversive nature, and ones that may have a relatively imminent and\nreadily discernible adverse impact on officially established policy. A c\xc2\xad\ncordingly, those provisions effectively complement one another. The\nfirst refers to proceedings in which the individual\xe2\x80\x99s own loyalty is in\nquestion, and the second refers to actions or plans involving other\npeople (and perhaps the individual as well) or of which the individual\nhas knowledge.\nThus, subsection (a)(2) would not on its face appear to apply to the\ntwo hearings at which Mr. Helms testified, which involved an inquiry\ninto the nature and implementation o f U.S. foreign policy in a given\ninstance and the influence of private persons in formulating the policy,\nwithout any apparent suggestion of disloyalty on the part of Mr. Helms\nor others or of possible attempts to subvert U.S. policy.\n254\n\n\x0cII\n\nThis somewhat limited interpretation of 5 U.S.C. \xc2\xa7 8314 is reinforced\nby reference to other sections of the entire subchapter of Title 5, of\nwhich \xc2\xa7 8314 is a part. Under 5 U.S.C. \xc2\xa7 8312, an individual is ineligible\nto receive a pension or annuity if he has been convicted of certain\nenumerated offenses. The listed offenses all pertain to espionage, sabo\xc2\xad\ntage, treason, subversion, or disloyalty.2\nIn addition, pension and retirement disability is also imposed if the\nindividual is convicted of perjury in falsely denying the commission of\nany of the offenses just mentioned or in falsely testifying with respect\nto his service as a Government officer or employee in connection with\na matter involving \xe2\x80\x9can interference with or endangerment of, or involv\xc2\xad\ning or relating to a plan or attempt to interfere with or endanger, the\nnational security or defense of the United States.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 8312(b)(3).3 The existence of these two provisions in the perjury\nsubsection strongly suggests that false testimony regarding \xe2\x80\x9cinterfer\xc2\xad\nence\xe2\x80\x9d or \xe2\x80\x9cendangerment\xe2\x80\x9d involving others must also pertain to activi\xc2\xad\nties or plans that are tinged with disloyalty or subversion. This reading\nof the perjury provisions is entirely consistent with our interpretation of\nthe comparable refusal-to-testify provisions in \xc2\xa7 8314.\nFinally, \xc2\xa7 8313 imposes pension and annuity ineligibility if the indi\xc2\xad\nvidual is under indictment for any of the offenses named in \xc2\xa7 8312, and,\nwith knowledge of the indictment, remains outside of the United States\nfor more than 1 year.\nAs can be seen, 5 U.S.C. \xc2\xa7\xc2\xa7 8312-8314 reflect a comprehensive effort\nto deny a pension or annuity to a Federal official who commits acts or\noffenses that endanger the national security or hinder the Government\xe2\x80\x99s\nability to learn about such acts or offenses committed by the individual\nor by others. In view of Congress\xe2\x80\x99 careful specification in \xc2\xa7 8312 of\nonly those criminal offenses that involve espionage, sabotage, treason,\nsubversion, or disloyalty, we believe that the sanctions in \xc2\xa7 8314 for\nrefusals to testify must apply only where the proceedings involved\nrelate to activities of a similar nature engaged in by the individual\nhimself or by others. As mentioned above, neither of Mr. Helms\xe2\x80\x99\nappearances involved an inquiry into such activities.\nIll\nWhatever remaining doubt there may be as to the proper scope of\n\xc2\xa7 8314 is, in our view, dispelled by reference to the legislative history\nof the section. The predecessor to the present \xc2\xa7 8314 was first enacted\n2 The offenses include gathering and transmitting defense information to injure the\nUnited States or to aid a foreign nation; sabotage; treason; advocating overthrow of the\nGovernment; activities affecting the morale, loyalty, or operation of the armed services;,\nservice against the United States; violations of the Atomic Energy Act with intent to\ninjure the United States or to aid a foreign nation; and communication o f classified\ninformation. \xc2\xa7 8314(b) (1)\xe2\x80\x94(2).\n5 The quoted phrase is identical to that in \xc2\xa7 8314(a)(2).\n\n255\n\n\x0cas \xc2\xa7 2(a) of P.L. 83-769, 68 Stat. 1142, popularly known as the \xe2\x80\x9cHiss\nA ct.\xe2\x80\x9d The principal purpose of the Act was to prevent Alger Hiss from\nreceiving retirement benefits when he reached age 62. Hiss v. Hampton,\n338 F. Supp. 1141, 1149-53 (D.D.C. 1972) (three-judge court). In 1954,\nMr. Hiss was about to be released from confinement following his\nconviction for perjury in connection with a grand jury investigation of\nhis possible violation of espionage and other laws arising from his\nalleged transmission of confidential State Department documents to a\nCommunist agent. The documents involved were \xe2\x80\x9cof such a nature that\neven at the comparatively late day of their disclosure some could not\nfor security reasons safely be made public . . . .\xe2\x80\x9d Id. at 1147, quoting\nUnited States v. Hiss, 185 F. 2d 822, 828 (2d Cir. 1950). There was\nwidespread public outcry at the possibility that Mr. Hiss might receive\nan annuity and Congress responded by passing P.L. 83-769.4 Thus, it is\nclear that the predecessor o f the present \xc2\xa7 8314 was part of an Act the\nprimary purpose of which was to bar the payment of an annuity to a\nperson convicted of perjury in connection with an inquiry into alleged\nactivities of a distinctly disloyal nature. Our intepretation of the lan\xc2\xad\nguage of \xc2\xa7 8314 is therefore consistent with Congress\xe2\x80\x99 original purpose.\nHowever, Public Law 83-769, as enacted in 1954, swept more broad\xc2\xad\nly than was necessary to accomplish this relatively limited purpose. The\noriginal A ct also provided for the denial of annuities to persons who\ncommitted any other offense related to the performance of their official\nduties. This resulted in the denial of valuable benefits to persons con\xc2\xad\nvicted o f relatively minor offenses, such as petty theft. See, e.g., H.R.\nRep. No. 541, 87th Cong., 1st Sess., 1 (1959); S. Rep. No. 862, 87th\nCong., 1st Sess., 1-3. To correct this perceived injustice, Congress in\n1961 greatly restricted the coverage of Public Law 83-769 to eliminate\nthe additional ineligibility sanction imposed on those who had commit\xc2\xad\nted offenses that had no bearing on loyalty or national security. P.L.\n87-299, 75 Stat. 646. See, Hiss v. Hampton, 338 F. Supp., at 1152. It was\nat that time that Congress limited the specific offenses that give rise to\nineligibility under \xc2\xa78312 to those involving espionage, sabotage, sub\xc2\xad\nversion, disloyalty, and the like, as discussed earlier in this memoran\xc2\xad\ndum. These changes were specifically designed to limit the application\nof the overall A ct to situations within the original primary purpose of\nthe Act, Le., to reach A lger Hiss and those in a comparable position.\nHiss v. Hampton, supra, at 1151-53. See, generally S. Rep. No. 862, 87th\nCong., 1st Sess., 1-3, 11 (1961); H.R. Rep. No. 541, 87th Cong., 1st\nSess., 1-2 (1961); S. Rep. No. 1544, 86th Cong., 2d Sess., 1-2 (1960); S.\nRep. No. 144, 86th Cong., 1st Sess., 2, 7 (1959); H.R. Rep. No. 258,\n,86th Cong., 1st Sess., 3 (1959); Hearings on H.R. 4601 and Related Bills\n4 Congress\xe2\x80\x99 purpose of denying an annuity to Mr. Hiss was ultimately thwarted. The\ncourt held in Hiss v. Hampton th at the denial o f an annuity was intended as a penalty and\nthat the law was therefore unconstitutional ex post facto legislation as applied to Mr. Hiss.\n\n256\n\n\x0cbefore the House Committee on Post Office and Civil Service, 86th\nCong., 1st Sess. 2 (1959); 105 Cong. Rec. 5831-33 (1959).\nThis clear expression of congressional intent, and the specific crimi\xc2\xad\nnal offenses identified by Congress in narrowing the Act in order to be\nconsistent with its original intent, lend strong support to our interpreta\xc2\xad\ntion that \xc2\xa7 8314 reaches only refusals to testify in proceedings relating\nto the employee\xe2\x80\x99s loyalty or immediate threats to the national security\nof a subversive nature. Indeed, the relevant committee reports describe\nthe present \xc2\xa7 8314(a) as prohibiting annuities or retired pay:\nto persons refusing, on grounds of self-incrimination, to testify or\nproduce documents, in proceedings relating to loyalty, or with\nrespect to their relations with foreign governments. This continues\npresent law, except as to offenses not involving loyalty. S. Rep. No.\n862, at 7; H.R. Rep. No. 541, at 5. [Emphasis added.]5\nSee, also H.R. Rep. No. 541, at 2-3; Hiss v. Hampton, supra, at 1153\n\n(referring to the 1961 Act as restoring benefits to those who committed\n\xe2\x80\x9cnon-treasonous\xe2\x80\x9d offenses); Garrott v. United States, 340 F. 2d 615, 620\n(Ct. Cl. 1965) (referring to \xc2\xa7 2 of the 1961 Act, which included the\npresent \xc2\xa7 8314, as covering \xe2\x80\x9csubversive acts and associations\xe2\x80\x9d).\nIn our view, the legislative history clearly confirms that \xc2\xa78314 is\nintended to apply only where the proceeding in which the individual\nrefuses to testify concerns the individual\xe2\x80\x99s own loyalty or his knowl\xc2\xad\nedge of activities or plans that pose a serious threat to national secu\xc2\xad\nrity\xe2\x80\x94and principally a breach of security, such as that involved in the\nHiss case. As such, it is inapplicable in the present situation involving\nMr. Helms.\nFinally, it should be noted that \xc2\xa78314 is penal in nature, Hiss v.\nHampton, supra, at 1153, and penal statutes are traditionally construed\nnarrowly. The Comptroller General applied this principle o f narrow\nconstruction to the original Hiss Act, concluding that there is no reason\nwhy the A ct should be interpreted to apply where it does not expressly\ndo so. 41 Comp. Gen. 62, 65 (1961); 35 Comp. Gen. 302, 303 (1955).\nThus, there is no reason in the present situation to extend \xc2\xa78314\nbeyond its evident primary purpose in order to reach the present case.\nJohn M. H armon\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9c These committee reports provide some basis for arguing that \xc2\xa78314 applies only\nwhere the refusal to testify is based on Fifth Amendment grounds, as was true with \xc2\xa7 2(a)\nof the 1954 act. In view of our conclusion here, there is no need to address this issue.\n\n257\n\n\x0c'


b"July 12, 1978\n\n78-38\n\nMEMORANDUM OPINION FOR DEPUTY\nASSISTANT ATTORNEY GENERAL, ANTITRUST\nDIVISION\nStandards of Conduct (28 CFR Part 45)\xe2\x80\x94 Service\nof Employee in State Chapter of a National\nOrganization\n\nThis is in response to your request for our opinion regarding the propriety of\nMr. A, an attorney in your Division, engaging in certain activities as a member\nof a national organization (\xe2\x80\x9c the organization\xe2\x80\x9d ).\nThe principal issue is whether A may serve as chairman of the Legal Affairs\nCommittee of his State\xe2\x80\x99s chapter of the organization. The Legal Affairs\nCommittee has the responsibility for assisting in litigation undertaken by the\norganization, recommending to the leadership of the State chapter areas of\npotential legal involvement, and representing the State chapter as a party or\namicus curiae in litigation. In addition, the committee would advise the\nleadership of the State chapter regarding compliance with laws that the\norganization monitors, draft legislation to be supported by the organization at\nthe State level, and analyze legislation prepared by others. As chairman, A\nwould direct the activities of the committee, handling some work himself and\ndelegating other work to members of the committee.\nRendering legal advice and analysis and recommending and conducting\nlitigation are traditional activities of a lawyer. It is clear that A\xe2\x80\x99s activities as\nchairman or even as an active member of the Legal Affairs Committee would\nconstitute the private practice of his profession and therefore be prohibited by\n28 CFR 45.735-9(a).\xe2\x80\x98 The Associate Attorney General may make specific\nexceptions to this prohibition in \xe2\x80\x9c unusual circumstances,\xe2\x80\x9d upon a written\napplication from the employee, directed through his superior. 28 CFR\n45.735-9(c). Typically, this exempting power has been exercised with respect\nto individual cases or matters where a need arises, e.g., to permit a lawyer\njoining the Department to complete work on a case that he was handling in\nprivate practice. Whether an exemption is appropriate in the present situation is\n'T h e absence o f com pensation is im m aterial on this point.\n\n158\n\n\x0ca matter for the Associate Attorney General. Were the Associate Attorney\nGeneral to grant an exemption, A would nevertheless be prohibited by 18\nU.S.C. \xc2\xa7 205 from acting as \xe2\x80\x9c agent or attorney\xe2\x80\x9d for the organization in cases\nor other matters in which the United States is a party or has a direct and\nsubstantial interest.\nA also inquires about other activities of the organization unrelated to the\nwork of the Legal Affairs Committee that principally derive from his role as\nchairman of the organization\xe2\x80\x99s National Issues Committee for a congressional\ndistrict in his State. These activities include attendance at meetings, educating\npresent and prospective members, appearing on radio programs, and lobbying\nelected officials, usually Members of Congress.\nThe Department\xe2\x80\x99s regulations do not prohibit membership in an outside\norganization or active participation in its affairs. Nor do the regulations\nordinarily prohibit an employee from petitioning elected officials at the Federal\nor State level on his own behalf or on behalf of an outside organization. See\nalso 5 U.S.C. \xc2\xa7 7102. A should not, however, perform any of these activities\non official time or allow his position as a Department employee to be used in\nany way in connection with his activities. In addition, if the occasion arises in\nwhich the organization becomes involved in an issue of particular interest to the\nAntitrust Division, consideration should be given to whether A\xe2\x80\x99s activities\nwould create a real or apparent conflict of interest. 28 CFR 45.735-9(d).\nL eon U\n\nlm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n159\n\n\x0c"


b'Legal Obligations of the United States Under\nArticle 33 of the Refugee Convention\nA rtic le 33 o f th e 1951 U nited Nations C onvention R elating to the Status o f R efugees d o es not\nim p o se any d o m estic legal obligations on the U n ited S tates w ith respect to individuals inter\xc2\xad\nd icted o u tsid e its territory as part o f an effort to control m ass illegal m igration to the U nited\nS tates.\n\nDecember 12, 1991\nM e m o r a n d u m O p i n i o n f o r t h e L e g a l A d v is e r\nD e p a r t m e n t o f S ta te\n\nWe have reviewed your letter opinion dated December 11, 1991, in which\nyou conclude that Article 33 o f the 1951 United Nations Convention Relat\xc2\xad\ning to the Status of Refugees (\xe2\x80\x9cRefugee Convention\xe2\x80\x9d) does not impose any\ndom estic legal obligations on the United States with respect to individuals\ninterdicted outside its territory as part of an effort to control mass illegal\nmigration to the United States. Letter for Timothy E. Flanigan, Acting As\xc2\xad\nsistant Attorney General, Office o f Legal Counsel, from Edwin D. Williamson\n(Dec. 11, 1991) (\xe2\x80\x9cWilliamson Letter\xe2\x80\x9d). For the reasons outlined in your\nletter and for the additional reasons discussed below, we concur in your\nconclusion.*\nThe United States adheres to Articles 2 through 34 of the Refugee Con\xc2\xad\nvention by virtue o f the Protocol Relating to the Status of Refugees, Jan. 31,\n1967, 19 U.S.T. 6223 (\xe2\x80\x9cthe Protocol\xe2\x80\x9d), to which the United States acceded on\nNovember 1, 1968. The official English version of Article 33 provides in part:\nNo Contracting State shall expel or return (\xe2\x80\x9crefouler\xe2\x80\x9d) a refu\xc2\xad\ngee in any manner whatsoever to the frontiers of territories\nwhere his life or freedom would be threatened on account of\nhis race, religion, nationality, membership of a particular so\xc2\xad\ncial group or political opinion.\n19 U.S.T. at 6276. Article 33 thus imposes an obligation on the contracting\n* E d ito r\'s Note: Subsequent to the date o f this opinion, the Supreme Court reached the same conclu\xc2\xad\nsion as this opinion in Sale v. Haitian Centers Council, Inc.t 509 U.S. 155 (1993).\n\n86\n\n\x0cparties not to \xe2\x80\x9cexpel or return (\xe2\x80\x9crefouler\xe2\x80\x9d)\xe2\x80\x9d refugees under certain circumstances.\nThe word \xe2\x80\x9cexpel\xe2\x80\x9d in Article 33 clearly refers to the treatment to be af\xc2\xad\nforded potential refugees found within a state\xe2\x80\x99s territory. Paragraph 1 also\nuses the word \xe2\x80\x9creturn,\xe2\x80\x9d followed by the French term \xe2\x80\x9crefouler.\xe2\x80\x9d As you note\nin your letter, the history behind the insertion of \xe2\x80\x9crefouler\xe2\x80\x9d in the Convention\ndemonstrates that the representatives of the nations that negotiated the Con\xc2\xad\nvention intended that the English word \xe2\x80\x9creturn" not be construed so as to\nmake the treaty applicable to persons outside the territory of a contracting\nstate. W illiam son Letter at 3-5.\' Because both \xe2\x80\x9cexpel\xe2\x80\x9d and \xe2\x80\x9creturn\n(\xe2\x80\x9crefouler\xe2\x80\x9d)\xe2\x80\x9d refer only to the treatment to be afforded individuals found\nwithin the territory of a contracting state, the Refugee Convention and the\nProtocol do not impose any legal obligation with respect to individuals in\xc2\xad\nterdicted outside the United States.\nThe Supreme Court, in its review of the legislative history of the United\nStates\xe2\x80\x99 accession to the Protocol, has also observed that the United States\nacceded to Article 33 based upon the view that Article 33 could be imple\xc2\xad\nmented through the then-existing section 243(h) of the Immigration and\nNationality Act, 8 U.S.C. \xc2\xa7 1253(h) (1976 ed.), and that section 243(h) ap\xc2\xad\nplied only to deportation of refugees already in the United States. See INS v.\nStevie, 467 U.S. 407, 415, 417-18 (1984). The legislative history of the\nRefugee Act o f 1980, Pub. L. No. 96-212, 94 Stat. 102, supports this view of\nArticle 33: the House Committee Report states that the Refugee Convention\nwas intended to \xe2\x80\x9cinsure fair and humane treatment for refugees within the\nterritory o f the contracting s t a t e s H.R. Rep. No. 608, 96th Cong., 1st\nSess. 17 (1979) (emphasis added).\nJudge Edwards in Haitian Refugee Center v. Gracey, 809 F.2d 794 (D.C.\nCir. 1987), concluded uneqivocally \xe2\x80\x94 and with specific reference to the\nHaitian interdiction program at issue here \xe2\x80\x94 that \xe2\x80\x9cArticle 33 in and of itself\nprovides no rights to aliens outside a host country\xe2\x80\x99s borders.\xe2\x80\x9d Id. at 840\n(Edwards, J., dissenting in part and concurring in part). The other two\njudges on the panel decided that the plaintiff lacked standing to challenge\nthe interdiction program and decided the case on that ground, a decision\nfrom which Judge Edwards dissented. Neither of the judges in the majority,\nhowever, expressed any disagreement with or reservations about Judge Edwards\xe2\x80\x99\nanalysis of the underlying merits issues, including his discussion of Article 33\nand his conclusion that it provides no rights to aliens outside a state\xe2\x80\x99s borders.\nWe note, moreover, as an independent ground for our conclusion, that the\nProtocol by which the United States adhered to the Convention is not self\xc2\xad\nexecuting for domestic law purposes. Accordingly, the Protocol itself does\nnot create rights or duties that can be enforced by a court.\n1 Your Department has also formally communicated to Congress its view that Article 33 extends only to\npersons who have gained entry into a territory of a contracting state. Haitian Detention and Interdiction:\nHearing Before the Subcomm. on Immigration, Refugees, and International Law o f the House Comm, on\nthe Judiciary, 101st Cong., 1st Sess 36-43 (1989) (statement o f Alan J. Kreczko, Deputy Legal Adviser,\nDepartment of State).\n\n87\n\n\x0cUnder the Supremacy Clause of the Constitution, treaties made pursuant to\nthe Constitution\xe2\x80\x99s procedures are part of the \xe2\x80\x9csupreme Law of the Land\nU.S. Const, art. VI, cl. 2. Some treaties, however, merely impose obliga\xc2\xad\ntions under international law that the United States, as a contracting party,\nm ust perform particular acts, without themselves creating any obligations\nunder dom estic law. In such cases the international obligation must be\n\xe2\x80\x9cexecuted\xe2\x80\x9d through domestic legislation before the obligation becomes ef\xc2\xad\nfectively the law o f the land. Thus, in Foster v. Neilson, 27 U.S. (2 Pet.)\n253, 314 (1829), C hief Justice Marshall recognized that not all treaties are\nself-executing:\n[A treaty] is, consequently, to be regarded in courts of justice\nas equivalent to an act o f the legislature, whenever it operates\no f itself without the aid of any legislative provision. But\nwhen the terms of the stipulation import a contract, when\neither of the parties engages to perform a particular act, the\ntreaty addresses itself to the political, not the judicial depart\xc2\xad\nment; and the legislature must execute the contract before it\ncan become a rule for the Court.\nSee a lso Memorandum for Michael J. Matheson, Deputy Legal Adviser, De\xc2\xad\n\npartment of State, from Ralph W. Tarr, Acting Assistant Attorney General,\nOffice o f Legal Counsel at 4-5 (Mar. 19, 1985) (\xe2\x80\x9cTarr Memorandum\xe2\x80\x9d).\nW hether a treaty is self-executing is controlled by the intent of the United\nStates as a contracting party. S ee British Caledonian Airways Ltd. v. Bond,\n665 F.2d 1153, 1160 (D.C. Cir. 1981); United States v. Postal, 589 F.2d 862,\n876 (5th Cir.), cert, denied, 444 U.S. 832 (1979); Diggs v. Richardson, 555\nF.2d 848, 851 (D.C. Cir. 1976). \xe2\x80\x9cThe parties\xe2\x80\x99 intent may be apparent from\nthe language of the treaty, or, if the language is ambiguous, it may be di\xc2\xad\nvined from the circumstances surrounding the treaty\xe2\x80\x99s promulgation.\xe2\x80\x9d Postal,\n589 F.2d at 876.\nThe language of the Protocol by which the United States adhered to the\nRefugee Convention demonstrates that the United States did not intend that\nthe Convention, as adhered to, would be self-executing. In particular, Ar\xc2\xad\nticle III o f the Protocol provides that the signatories are to communicate to\nthe United Nations the \xe2\x80\x9claws and regulations which they may adopt to en\xc2\xad\nsure the application of the present Protocol.\xe2\x80\x9d 19 U.S.T. at 6226. Cf. Postal,\n589 F.2d at 876-77 (treaties that \xe2\x80\x9cexpressly provide for legislative execu\xc2\xad\ntio n \xe2\x80\x9d are \xe2\x80\x9cuniform ly declared executory\xe2\x80\x9d and therefore require further\nlegislative action to bring the treaty into effect). Moreover, such a provision\nwould have been unnecessary if the Refugee Convention were self-executing. Cf. Protocol, art. VI(b), 19 U.S.T. at 6227 (any signatory with federal\nform o f government obligated to bring the articles of Refugee convention to\n88\n\n\x0cthe notice of the constituent states if those articles come within the states\xe2\x80\x99\nexclusive legislative jurisdictions). Thus, the Protocol by its own terms plainly\ncontemplates the need for implementing legislation by its signatories.\nFurthermore, the understanding of the President and the Senate in adopt\xc2\xad\ning the Protocol was that the United States\xe2\x80\x99 obligations under the Refugee\nConvention, pursuant to the Protocol, would not be self-executing. Specifi\xc2\xad\ncally, the President and Senate clearly believed that pre-existing domestic\nlaw governing refugees \xe2\x80\x94 which applied only to persons already in the\nUnited States \xe2\x80\x94 would suffice to implement the Refugee Convention and the\nProtocol.2 See also Stevie, 467 U.S. at 417-18. We also note that the Sec\xc2\xad\nond Circuit, the only circuit court to address the question directly has\nconcluded that the Protocol is not self-executing. Bertraud v. Sava, 684 F.2d\n204, 218-19 (2d Cir. 1982).\nBecause the Protocol is not self-executing, its provisions cannot be en\xc2\xad\nforced by a private right of action in a U nited States court.3 It is\nwell-established that individuals may directly seek enforcement of a treaty\xe2\x80\x99s\nprovisions only when \xe2\x80\x9cthe treaty . . . expressly or impliedly provides a\nprivate right of action.\xe2\x80\x9d Tel-Oren v. Libyan Arab Republic, 726 F.2d 774,\n808 (D.C. Cir. 1984) (Bork, J., concurring), cert, denied, 470 U.S. 1003\n(1985). See also H ead Money Cases, 112 U.S. 580, 598-99 (1884); Frolova\nv. Union o f Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985) (\xe2\x80\x9cif\nnot implemented by appropriate legislation [treaties] do not provide the ba\xc2\xad\nsis for a private lawsuit unless they are intended to be self-executing\xe2\x80\x9d);\nMannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir.\n1979); Linder v. Calero Portocarrero, 747 F. Supp. 1452, 1462-63 (S.D. Fla.\n1990); Haitian Refugee Cent. Inc. v. Gracey, 600 F. Supp. 1396, 1405-06\n(D.D.C. 1985), a ff\xe2\x80\x99d on other grounds, 809 F.2d 794 (D.C. Cir. 1987).\nA one-page opinion of this Office, and one sentence in another Office of\nLegal Counsel opinion, might be read to suggest that refugees interdicted on\nthe high seas enjoy certain rights under the Protocol adopting the Refugee\nConvention. See Proposed Interdiction o f Haitian Flag Vessels, 5 Op. O.L.C.\n242, 248 (1981) (\xe2\x80\x9cIndividuals who claim that they will be persecuted . . .\nmust be given an opportunity to substantiate their claims [under Article\n33].\xe2\x80\x9d); Memorandum for the Associate Attorney General from Larry L. Simms,\nDeputy Assistant Attorney Genera], Office of Legal Counsel (Aug. 5, 1981)\n(\xe2\x80\x9cThose who claim to be refugees must be given a chance to substantiate\n2 See, e.g., S. Exec. Doc K, 90th Cong., 2d Sess. III (1968) (message from Pres. Johnson) (\xe2\x80\x9cmost\nrefugees in this country already enjoy the protection and rights which the Protocol seeks to secure for\nrefugees in all countries\xe2\x80\x9d); id. at VIII (report of secretary of State Rusk) (\xe2\x80\x9c[Article 33] is com parable to\nSection 243(h) of the Immigration and Nationality A c t. .. and it can be implemented within the adm in\xc2\xad\nistrative discretion provided by existing regulations\xe2\x80\x9d ) (emphasis added); S. Exec. Rep. No. 14, 90th\nCong., 2d Sess. 4 (1968) (testimony o f Laurence A. Dawson, State Dept, official) (\xe2\x80\x9crefugees in the\nUnited States have long enjoyed the protection and the rights which the protocol calls for").\n\xe2\x80\x99 O f course, even were the Protocol deemed to be self-executing, the Protocol would need to be exam \xc2\xad\nined to see if it conferred any legally enforceable rights upon individuals interdicted outside the terri\xc2\xad\ntory o f the U nited States. See also Tarr Memorandum at 4 n.5. We have already concluded above that\nthe Protocol does not confer any legally enforceable rights upon such individuals.\n\n89\n\n\x0ctheir claims [under Article 33].\xe2\x80\x9d ). Among other things, those memoranda did\nnot address whether the Protocol adopting the Refugee Convention is self\xc2\xad\nexecuting. To the extent that those memoranda could be read to suggest that\nArticle 33, as adopted by the Protocol, imposes a judicially enforceable obli\xc2\xad\ngation on the United States with respect to individuals interdicted beyond its\nterritorial boundaries, those memoranda are incorrect.\nTIMOTHY E. FLANIGAN\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n90\n\n\x0c'