b'NOAA Employee\xe2\x80\x99s Receipt of the G\xc3\xb6teborg\nAward for Sustainable Development\nNeither the Emoluments Clause of the Constitution nor the Foreign Gifts and Decorations\nAct would bar an employee of the National Oceanic and Atmospheric Administration\nfrom accepting the 2010 G\xc3\xb6teborg Award for Sustainable Development.\nOctober 6, 2010\n\nMEMORANDUM OPINION FOR THE\nASSISTANT GENERAL COUNSEL\nDEPARTMENT OF COMMERCE\nYou have asked for our opinion whether the Emoluments Clause of the\nConstitution would bar an employee of the National Oceanic and Atmospheric Administration (\xe2\x80\x9cNOAA\xe2\x80\x9d) from accepting the 2010 G\xc3\xb6teborg\nAward for Sustainable Development. See Memorandum for David J.\nBarron, Acting Assistant Attorney General, Office of Legal Counsel,\nfrom Barbara S. Fredericks, Assistant General Counsel, Department of\nCommerce (July 22, 2010) (\xe2\x80\x9cCommerce Memo\xe2\x80\x9d). The Clause forbids\nanyone \xe2\x80\x9cholding any Office of Profit or Trust\xe2\x80\x9d under the United States\nfrom accepting, without congressional consent, \xe2\x80\x9cany present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or\nforeign State.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 9, cl. 8. On the facts you have provided, we conclude that the employee may accept the award without violating the Emoluments Clause, because the award would not be \xe2\x80\x9cfrom any\nKing, Prince, or foreign State.\xe2\x80\x9d For similar reasons, we conclude that\nacceptance of the award would not violate the Foreign Gifts and Decorations Act, 5 U.S.C. \xc2\xa7 7342 (2006).\nI.\nThe Association for the G\xc3\xb6teborg Award for Sustainable Development\n(\xe2\x80\x9cG\xc3\xb6teborg Award Association\xe2\x80\x9d) has chosen a NOAA scientist* to be one\n\n* Editor\xe2\x80\x99s Note: For privacy reasons, the published version of this opinion does not\nidentify the NOAA scientist.\n\n210\n\n\x0cNOAA Employee\xe2\x80\x99s Receipt of the G\xc3\xb6teborg Award for Sustainable Development\n\nof two recipients of the 2010 G\xc3\xb6teborg Award. 1 The award consists of one\nmillion Swedish Kroner (approximately $142,000) to be shared equally\nwith the co-recipient, travel expenses to the award ceremony in Sweden,\nand a ceremonial globe.\nThe G\xc3\xb6teborg Award Association is registered under Swedish law as a\nnon-governmental entity, and its sole function is to administer the G\xc3\xb6teborg Award. You have told us that the Association consists of the City of\nG\xc3\xb6teborg and twelve businesses and that the Association is \xe2\x80\x9cfunded onethird by the City and two-thirds by the private businesses.\xe2\x80\x9d Commerce\nMemo at 1. The Association is managed by a Board of Trustees that currently consists of three officials of the City of G\xc3\xb6teborg and one businessman. See G\xc3\xb6teborg Award, Organisation, http://www.goteborgaward.com/\nen/informationssida/organisation.html (last visited Oct. 5, 2010). That\nBoard appoints the seven-member jury that selects the winners and\npresents the award during a formal ceremony. None of the members of\nthe jury that selected the 2010 awardees was a government official. The\nG\xc3\xb6teborg Association\xe2\x80\x99s bylaws authorize the Board to act as the \xe2\x80\x9cultimate decisionmaker,\xe2\x80\x9d but you have told us that, as a matter of practice,\nneither the City of G\xc3\xb6teborg nor the Association\xe2\x80\x99s Board has interfered\nwith the jury\xe2\x80\x99s selection process during the ten years the award has\nexisted. See Jacobi E-mail, supra note 1.\nII.\nUnder the Emoluments Clause of the Constitution, \xe2\x80\x9cno Person holding\nany Office of Profit or Trust under [the United States], shall, without the\nConsent of the Congress, accept of any present, Emolument, Office, or\nTitle, of any kind whatever, from any King, Prince, or foreign State.\xe2\x80\x9d U.S.\nConst. art. I, \xc2\xa7 9, cl. 8. The Clause was intended to \xe2\x80\x9cpreserv[e] foreign\nMinisters & other officers of the U.S. independent of external influence\xe2\x80\x9d\nby foreign governments. 2 The Records of the Federal Convention of\n1787, at 389 (Max Farrand ed., rev. ed. 1966) (notes of James Madison);\nsee also 3 id. at 327 (remarks of Governor Randolph) (\xe2\x80\x9cIt was thought\nFor the facts regarding the award, we rely chiefly upon the statements of the Commerce Department. See Commerce Memo at 1; see also E-mail for Pankaj Venugopal,\nAttorney-Adviser, Office of Legal Counsel, from Will Jacobi, Senior Counsel, Department of Commerce (Aug. 20, 2010) (\xe2\x80\x9cJacobi E-mail\xe2\x80\x9d).\n1\n\n211\n\n\x0c34 Op. O.L.C. 210 (2010)\n\nproper, in order to exclude corruption and foreign influence, to prohibit\nany one in office from receiving or holding any emoluments from foreign\nstates.\xe2\x80\x9d); President Reagan\xe2\x80\x99s Ability to Receive Retirement Benefits from\nthe State of California, 5 Op. O.L.C. 187, 188 (1981) (discussing background of ratification of the Clause).\nIn our view, the Emoluments Clause does not apply to the NOAA scientist\xe2\x80\x99s acceptance of the G\xc3\xb6teborg Award because that prize would not\nbe tendered by a \xe2\x80\x9cforeign State\xe2\x80\x9d within the Clause\xe2\x80\x99s meaning. 2 That view\ndoes not rest on the notion that the City of G\xc3\xb6teborg is not a \xe2\x80\x9cforeign\nState\xe2\x80\x9d under the Emoluments Clause, 3 but rather on the conclusion, based\non the representations you have made, that the City does not appear to\ncontrol the granting of the G\xc3\xb6teborg Award. Rather, the selection of the\naward recipients appears to be made by the G\xc3\xb6teborg Award Association,\n2 In light of this conclusion, we do not address whether the NOAA scientist holds an\n\xe2\x80\x9cOffice of Profit or Trust\xe2\x80\x9d within the meaning of the Emoluments Clause. Nor do we\nconsider whether each element of the G\xc3\xb6teborg Award\xe2\x80\x94the cash prize, the travel to\nSweden, or the ceremonial globe\xe2\x80\x94is a \xe2\x80\x9cpresent\xe2\x80\x9d or \xe2\x80\x9cEmolument . . . of any kind whatever.\xe2\x80\x9d U.S. Const. art I, \xc2\xa7 9, cl. 8.\n3 We need not resolve that issue definitively here. At least once, we have informally\nadvised that the term \xe2\x80\x9cforeign State\xe2\x80\x9d in the Emoluments Clause applies equally to national\ngovernments and to sub-national governmental units. See Memorandum for the Files from\nRosemary Nidiry, Attorney-Adviser, Re: Title of Honorary Village Chief from a Nigerian\nVillage at 2 (Jan. 19, 2001) (rejecting a \xe2\x80\x9cliteral reading\xe2\x80\x9d of the term \xe2\x80\x9cforeign State\xe2\x80\x9d in the\nEmoluments Clause and noting that \xe2\x80\x9cjust as \xe2\x80\x98King\xe2\x80\x99 and \xe2\x80\x98Prince\xe2\x80\x99 should be read to cover a\nforeign \xe2\x80\x98Queen\xe2\x80\x99 or \xe2\x80\x98Princess\xe2\x80\x99 or \xe2\x80\x98Duke,\xe2\x80\x99 \xe2\x80\x98foreign State\xe2\x80\x99 did not mean merely the \xe2\x80\x98national\ngovernment of that foreign State,\xe2\x80\x99 but also should include any political governing entity\nwithin that foreign state\xe2\x80\x9d). And we appear to have assumed the same position in one of\nour published opinions. See Applicability of Emoluments Clause to Employment of\nGovernment Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 19 (1994)\n(\xe2\x80\x9cForeign Public Universities\xe2\x80\x9d) (characterizing University of Victoria as \xe2\x80\x9can instrumentality of a foreign state (the province of British Columbia)\xe2\x80\x9d). The Comptroller\nGeneral has also taken the position that the Emoluments Clause is not limited to the\nnational government of a foreign state. See Major James D. Dunn, B-251084, 1993 WL\n426335, at *3 (Comp. Gen. Oct. 12, 1993) (\xe2\x80\x9cForeign governmental influence can just as\nreadily occur whether a member is employed by local government within a foreign\ncountry or by the national government of the country. For this reason, we believe that the\nterm \xe2\x80\x98foreign State\xe2\x80\x99 should be interpreted to include local governmental units within a\nforeign country as well as the national government itself.\xe2\x80\x9d); see also Military Personnel\xe2\x80\x94\nAcceptance of Foreign Presents, Emoluments, etc.\xe2\x80\x94Foreign Government Employment\xe2\x80\x94\nRetired Enlisted Members, 44 Comp. Gen. 130, 131 (1964) (\xe2\x80\x9c[T]he State of Tasmania\nmust be considered a \xe2\x80\x98foreign State\xe2\x80\x99 within the meaning of the constitutional provision.\xe2\x80\x9d).\n\n212\n\n\x0cNOAA Employee\xe2\x80\x99s Receipt of the G\xc3\xb6teborg Award for Sustainable Development\n\nacting through a jury appointed by the Board of the Association. The\nrelevant question here is whether the decision to grant the award to a\nparticular individual by the jury appointed by the Board of the Association is sufficiently independent of the government of the City of G\xc3\xb6teborg\nthat conferral of the award should not be deemed an action of a foreign\nstate for the purposes of the Emoluments Clause. See President\xe2\x80\x99s Receipt\nof the Nobel Peace Prize, 33 Op. O.L.C. 370, 380\xe2\x80\x9382 (2009) (\xe2\x80\x9cNobel\nPeace Prize\xe2\x80\x9d).\nIn previous opinions, the factors we have considered in conducting\nsuch an assessment include whether a foreign government has an active\nrole in the management of the decisionmaking entity, Foreign Public\nUniversities, 18 Op. O.L.C. at 15; whether a foreign government, as\nopposed to a private intermediary, makes the ultimate decision regarding\nthe gift or emolument, Memorandum for John G. Gaine, General Counsel,\nCommodity Futures Trading Commission, from Leon Ulman, Deputy\nAssistant Attorney General, Office of Legal Counsel, Re: Expense Reimbursement in Connection with Trip to Indonesia (Aug. 11, 1980) (\xe2\x80\x9cIndonesia Trip\xe2\x80\x9d); see also Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156\n(1982); and whether a foreign government is a substantial source of\nfunding for the entity, see Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International\nHistorians, 11 Op. O.L.C. 89, 90 (1987) (\xe2\x80\x9cInternational Historians\xe2\x80\x9d). No\none of these factors has been dispositive. We have looked to them in\ncombination to assess the status of the decisionmaking entity for purposes\nof the Clause, keeping in mind the underlying purpose that the Clause\nserves. See, e.g., Memorandum for H. Gerald Staub, Office of Chief\nCounsel, NASA, from Samuel A. Alito, Jr., Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Emoluments Clause Questions\nRaised by NASA Scientist\xe2\x80\x99s Proposed Consulting Arrangement with the\nUniversity of New South Wales at 4\xe2\x80\x935 (May 23, 1986) (\xe2\x80\x9cNASA Scientist\xe2\x80\x9d)\n(\xe2\x80\x9cThe answer to the Emoluments Clause question . . . must depend [on]\nwhether the consultancy would raise the kind of concern (viz., the potential for \xe2\x80\x98corruption and foreign influence\xe2\x80\x99) that motivated the Framers in\nenacting the constitutional prohibition\xe2\x80\x9d).\nAlthough the question is close, we believe that the G\xc3\xb6teborg Award\nAssociation, acting through the jury, is not an instrumentality of a foreign\n213\n\n\x0c34 Op. O.L.C. 210 (2010)\n\nstate for purposes of the Emoluments Clause. As you have told us, the\nAssociation is governed by a Board, a majority of whose members are\nCity officials. For the Emoluments Clause analysis, however, this fact is\nless significant than the composition of the entity that actually selects\naward recipients. The selection is made not by the Association as a whole\nor by its Board, but by the jury of seven private individuals, without\ninterference from the Association\xe2\x80\x99s members, including the municipal\ngovernment. To be sure, the bylaws of the Association designate the\nBoard as the \xe2\x80\x9cultimate decisionmaker,\xe2\x80\x9d and we assume that this control\ncould potentially include the authority to veto the jury\xe2\x80\x99s selection of\naward winners. Our Office\xe2\x80\x99s precedents nonetheless suggest that such\nultimate authority is not dispositive where, as here, there is a strong\nindication that the decision at issue was in fact made autonomously and\nwithout governmental influence.\nIn our Foreign Public Universities opinion, for example, we considered\nwhether the University of British Columbia\xe2\x80\x99s hiring of faculty members\nwas so independent of the provincial government\xe2\x80\x99s control as not to\nimplicate the Emoluments Clause. We acknowledged that the University\xe2\x80\x99s\nfaculty was \xe2\x80\x9cconstituted by the board [of governors],\xe2\x80\x9d a majority of whose\nmembers were appointed by the provincial government. 18 Op. O.L.C.\nat 14\xe2\x80\x9315, 22. We nevertheless determined that the Emoluments Clause\nwas inapplicable, in significant part because there was no evidence of a\ngovernmental effort to influence the University\xe2\x80\x99s faculty hiring decisions.\nId. at 15 (\xe2\x80\x9c[T]he [U]niversity can be shown to be acting independently of\nthe foreign state with respect to its faculty employment decisions.\xe2\x80\x9d); id.\nat 20\xe2\x80\x9321 (\xe2\x80\x9c\xe2\x80\x98There is nothing to indicate that in entering into these arrangements, the universities were in any way following the dictates of\nthe government. They were acting purely on their own initiative.\xe2\x80\x99\xe2\x80\x9d (quoting McKinney v. Univ. of Guelph, [1990] 3 S.C.R. 229, 269, 273 (Can.)));\nid. at 20 (noting \xe2\x80\x9cthe autonomy of the provincial universities when making faculty employment decisions\xe2\x80\x9d). Despite the board of governors\xe2\x80\x99\n\xe2\x80\x9cultimate\xe2\x80\x9d control over the constitution of the faculty, id. at 20, faculty\nhiring decisions were, in practice, made autonomously by the University\nitself. 4\n4 We acknowledge that, in the Foreign Public Universities opinion, decisions of Canadian courts had affirmed the independence of the universities from day-to-day control by\n\n214\n\n\x0cNOAA Employee\xe2\x80\x99s Receipt of the G\xc3\xb6teborg Award for Sustainable Development\n\nSimilarly, while the Board of the G\xc3\xb6teborg Association may formally\nbe the \xe2\x80\x9cultimate decisionmaker\xe2\x80\x9d with respect to various aspects of the\nG\xc3\xb6teborg Award, neither the Board nor the City of G\xc3\xb6teborg has dictated\nthe selection of recipients. Indeed, the Secretary of the Board, Lennart\nWassenius, has represented that \xe2\x80\x9c[d]uring [his] close to ten years with the\n[A]ssociation it has been absolutely clear that the jury de facto has the\ncomplete control of and the full responsibility for the selection process as\nwell as the final decision as regards the award. The Board has never\ndiscussed less so questioned, the work of the jury.\xe2\x80\x9d Jacobi E-mail, supra\nnote 1 (emphases deleted). 5\nBesides looking to whether the government makes the ultimate decision\nas to the conferral of a gift or emolument, our opinions indicate that a\nsubstantial amount of government funding may help to establish that an\ninstitution is an instrumentality of a \xe2\x80\x9cforeign State\xe2\x80\x9d for the purposes of the\nEmoluments Clause. For instance, our conclusion that a commission of\ninternational historians was a foreign state within the meaning of the\nClause was based on the \xe2\x80\x9cCommission\xe2\x80\x99s establishment and funding\xe2\x80\x9d by\nthe Austrian government. International Historians, 11 Op. O.L.C. at 89\xe2\x80\x93\n90.\nThe presence of some public funding, however, does not necessarily\nmean that an institution counts as a \xe2\x80\x9cforeign State.\xe2\x80\x9d Although the existence of significant public funding raises the potential for foreign governmental influence, other evidence of an entity\xe2\x80\x99s independence may establish that the Emoluments Clause does not apply. The more an entity is\nfinanced by a foreign government, the more likely it is that the state\nexercises control over that entity\xe2\x80\x99s decision to confer a present or emoluthe government, 18 Op. O.L.C. at 20 (citing Harrison v. Univ. of British Columbia,\n[1990] 3 S.C.R. 451 (Can.); McKinney v. Univ. of Guelph, [1990] 3 S.C.R. 229 (Can.)),\nwhile here the conclusion that the jury is independent does not rest on a foreign judicial\ndetermination. The issue here is thus closer than in our earlier opinion. Even in Foreign\nPublic Universities, however, we observed that the Canadian court cases, while \xe2\x80\x9ccompelling evidence\xe2\x80\x9d of independence, \xe2\x80\x9ccannot of course determine our interpretation of the\nEmoluments Clause.\xe2\x80\x9d Id. at 22. The question, here as there, is whether the decisionmaking entity is free from governmental control when it makes its selection.\n5 The Board does appoint the jury members, but in view of the private composition of\nthe jury and its de facto autonomy in selecting award recipients, we do not view the\nBoard\xe2\x80\x99s \xe2\x80\x9cappointment authority . . . as having dispositive significance.\xe2\x80\x9d Nobel Peace\nPrize, 33 Op. O.L.C. at 384.\n\n215\n\n\x0c34 Op. O.L.C. 210 (2010)\n\nment. A greater measure of public funding would require correspondingly\nstronger evidence that the foreign government does not in fact retain\ncontrol over the decision at issue. Nevertheless, even when a foreign\ngovernment was the sole source of funding for an institution, we have\ndetermined that the particular institution was not a foreign state because\nof its \xe2\x80\x9cfunctional and operational separation and independence\xe2\x80\x9d from the\ngovernment. See NASA Scientist at 4. Such considerations of autonomy\nalso informed our view that a federal officer could serve as a consultant to\nHarvard University on a project funded substantially, if not entirely, by\nthe government of Indonesia. See Indonesia Trip at 5. Despite the funding\nby the foreign government, we determined that the Emoluments Clause\ndid not apply because \xe2\x80\x9cHarvard has complete discretion in the selection\xe2\x80\x9d\nof consultants and Indonesia \xe2\x80\x9cneither controls nor even influences . . .\n[Harvard\xe2\x80\x99s] selection and payment of consultants.\xe2\x80\x9d Id. at 4\xe2\x80\x935. Here,\nsimilarly, although the City of G\xc3\xb6teborg\xe2\x80\x99s contribution of one-third of the\nAssociation\xe2\x80\x99s annual funding is significant, this factor does not outweigh\nthe jury\xe2\x80\x99s consistent ten-year practice of selecting both the nominees for\nand ultimate recipients of the award without governmental interference.\nOn the facts presented, we accordingly conclude that the NOAA scientist\xe2\x80\x99s receipt of the award would not violate the Emoluments Clause.\nIII.\nThe reasons making the Emoluments Clause inapplicable also lead to\nthe conclusion that the NOAA scientist may accept the G\xc3\xb6teborg Award\nwithout violating the Foreign Gifts and Decorations Act. The Act generally bars the acceptance of \xe2\x80\x9cgifts and decorations\xe2\x80\x9d from \xe2\x80\x9cforeign\ngovernment[s]\xe2\x80\x9d except under certain limited circumstances. 5 U.S.C.\n\xc2\xa7 7342(b)(2) (2006); id. \xc2\xa7 7342(a)(3) (defining \xe2\x80\x9cgift\xe2\x80\x9d to mean \xe2\x80\x9ca tangible\nor intangible present (other than a decoration) tendered by, or received\nfrom, a foreign government\xe2\x80\x9d). We need not address whether any of those\nexceptions would apply here because we do not believe that the scientist\nwould be receiving an award \xe2\x80\x9ctendered by, or received from, a foreign\ngovernment.\xe2\x80\x9d\nIn pertinent part, the Act defines the term \xe2\x80\x9cforeign government\xe2\x80\x9d to\nmean:\n\n216\n\n\x0cNOAA Employee\xe2\x80\x99s Receipt of the G\xc3\xb6teborg Award for Sustainable Development\n\n(A) any unit of foreign governmental authority, including any foreign national, State, local, and municipal government;\n. . . and\n(C) any agent or representative of any such unit or such organization, while acting as such.\nId. \xc2\xa7 7342(a)(2).\nOur Office previously gave some guidance about this definitional provision in the context of a prize awarded by the Alexander Von Humboldt\nFoundation. See Letter for Walter T. Skallerup, Jr., General Counsel,\nDepartment of the Navy, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel (Mar. 17, 1983) (\xe2\x80\x9cVon Humboldt\nFoundation\xe2\x80\x9d). The Foundation was established and mainly financed by\nthe West German government, and we noted that the West German government was undoubtedly a \xe2\x80\x9cunit of foreign governmental authority.\xe2\x80\x9d Id.\nat 2. Yet we explained that it was not necessary \xe2\x80\x9cto go into the questions\nwhether, in view of its intimate connection with the German Government,\nthe Foundation should always be considered a foreign government.\xe2\x80\x9d Id.\nat 3. Under the statute, the relevant question was instead whether the\nAlexander Von Humboldt Foundation was a \xe2\x80\x9cforeign government, as\ndefined in section 7342(a)(2)(C), while it [was] acting as the agent for the\nGerman Government in connection with the administration of [the award\nprogram].\xe2\x80\x9d Id.; see also 5 U.S.C. \xc2\xa7 7342(a)(2)(C) (\xe2\x80\x9cagent or representative . . . while acting as such\xe2\x80\x9d (emphasis added)). On the facts, we concluded that the Foundation was acting as an agent in awarding the prize.\nIn particular, ministers of the German government sat not only on the\nBoard of the Foundation, but also on the special committee of the Foundation that selected the award recipients. 6\nThis prior interpretation of the Act supports the conclusion that the\nG\xc3\xb6teborg Association is not a \xe2\x80\x9cforeign government\xe2\x80\x9d within the meaning\nof the Act. Although, as a \xe2\x80\x9clocal\xe2\x80\x9d or \xe2\x80\x9cmunicipal government,\xe2\x80\x9d the City\nof G\xc3\xb6teborg is a \xe2\x80\x9cunit of foreign governmental authority,\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 7342(a)(2)(A), we do not believe that this definition of \xe2\x80\x9cforeign gov-\n\n6 Although we concluded that the award was from a foreign government, we advised\nthat the award could be accepted because it fell within the Act\xe2\x80\x99s exception for \xe2\x80\x9ceducational scholarship[s].\xe2\x80\x9d Von Humboldt Foundation at 4 (citing 5 U.S.C. \xc2\xa7 7342(c)(1)(B)).\n\n217\n\n\x0c34 Op. O.L.C. 210 (2010)\n\nernment\xe2\x80\x9d applies to the G\xc3\xb6teborg Award Association, which is registered\nas a non-governmental entity under Swedish law, when it acts through its\naward jury consisting of private persons. To be sure, the City\xe2\x80\x99s representation on the Association\xe2\x80\x99s Board makes it theoretically possible that the\nAssociation could function as an agent or representative of the City for\ncertain purposes, but the critical question is whether the Association acts\nas an agent or representative of the City in determining the winners of the\naward. Id. \xc2\xa7 7342(a)(2)(C); see also Von Humboldt Foundation at 1. As\nexplained above, the Association has assigned a jury of private persons\nthe authority to select the recipients of the G\xc3\xb6teborg Award\xe2\x80\x94a decision\nmade without interference by either the Board or the Association\xe2\x80\x99s members, including the city government. The Board does appoint the award\njury\xe2\x80\x99s members, but the jury\xe2\x80\x99s private composition and decisional autonomy refute the idea that the jury members act as \xe2\x80\x9cagents or representatives\xe2\x80\x9d of the City when they choose the recipients of the G\xc3\xb6teborg\nAward. Furthermore, unlike the special committee of the Von Humboldt\nFoundation, the G\xc3\xb6teborg Award Association does not distribute a wholly (or even mostly) government-financed award. See Von Humboldt\nFoundation at 2. The majority of the Association\xe2\x80\x99s funding (two-thirds)\ncomes from private businesses. The Act consequently poses no bar to the\nscientist\xe2\x80\x99s acceptance of the G\xc3\xb6teborg Award.\nIV.\nFor the foregoing reasons, we conclude that neither the Emoluments\nClause nor the Foreign Gifts and Decorations Act would prohibit the\nNOAA scientist from accepting the G\xc3\xb6teborg Award. 7\nDANIEL L. KOFFSKY\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\nWe address here only the Emoluments Clause and the Foreign Gifts and Decorations\nAct. In particular, we do not consider 5 C.F.R. \xc2\xa7 2635.502(d) (2010), a provision in the\nStandards of Ethical Conduct for Employees in the Executive Branch dealing with\nacceptance of awards.\n7\n\n218\n\n\x0c'


b'Exercising the Pocket Veto\nWhen the President wishes to disapprove a bill, and Congress\xe2\x80\x99s adjournment has prevented the\nPresident\xe2\x80\x99s return of the bill, the safer course for the President to exercise his power of disapproval\nis through a pocket veto, instead of endorsing the bill with the word \xe2\x80\x9cdisapproved\xe2\x80\x9d and the President\xe2\x80\x99s signature.\n\nJune 26, 1934\n\nMEMORANDUM OPINION FOR THE EXECUTIVE CLERK\nWHITE HOUSE*\nThe view appears to be correct that the President\xe2\x80\x99s powers and duties in respect\nof the approval or disapproval of bills presented to him by the Congress are to be\nexercised strictly, since he is acting in this behalf as a part of the law making\npower, and the method of exercise is fixed by the Constitution itself, the immediately pertinent provision being: \xe2\x80\x9cIf he approve he shall sign it, but if not he shall\nreturn it, with his Objections to that House in which it shall have originated . . . . If\nany Bill shall not be returned by the President within ten Days (Sundays excepted)\nafter it shall have been presented to him, the Same shall be a Law, in like Manner\nas if he had signed it, unless the Congress by their Adjournment prevent its\nReturn, in which Case it shall not be a Law.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 7.\n\xe2\x80\x9cThe only duty required of the President by the Constitution in regard to a bill\nwhich he approves is, that he shall sign it. Nothing more. The simple signing his\nname at the appropriate place is the one act which the Constitution requires of him\nas the evidence of his approval, and upon his performance of this act the bill\nbecomes a law. . . . Even in the event of his approving the bill, it is not required\nthat he shall write on the bill the word approved, nor that he shall date it.\xe2\x80\x9d Gardner\nv. The Collector, 73 U.S. (6 Wall.) 499, 506 (1867). Compare also 59 C.J. Statutes\n\xc2\xa7\xc2\xa7 112\xe2\x80\x93113 (1932).\n\xe2\x80\x9cWhen exercising these powers [of governor] he is a special agent with limited\npowers, and, as in the case of other special agents, he can act only in the specified\nmode, and can exercise only the granted powers. If he attempts to exercise them in\na different mode, or to exercise powers not given, his act will be wholly ineffectual and void for any and every purpose. When he goes beyond the limits of these\npowers in the attempt to exercise them, his acts, so far as they transcend the\npowers, are of no force.\xe2\x80\x9d Lukens v. Nye, 105 P. 593, 594 (Cal. 1909).\n\n*\nEditor\xe2\x80\x99s Note: The Unpublished Opinions of the Assistant Solicitor General contain a footnote\nhere cross-referencing the letter on the previous page (Whether a Three-Day Recess by One Chamber\nof Congress Constitutes an Adjournment for Purposes of the Pocket Veto Clause, 1 Op. O.L.C. Supp.\n25 (Mar. 16, 1934)). That letter expresses doubt about whether a three-day recess by the Senate, while\nthe House remains in session, can be considered an \xe2\x80\x9cAdjournment\xe2\x80\x9d that \xe2\x80\x9cprevent[s] [the] Return\xe2\x80\x9d of a\nbill under Article I, Section 7 of the Constitution.\n\n26\n\n\x0cExercising the Pocket Veto\n\nThe foregoing, it may be observed, relates to the method of approval of a bill,\nwhile your question relates to disapproval and arises upon endorsement on the bill\nof the word \xe2\x80\x9cdisapproved,\xe2\x80\x9d followed by the President\xe2\x80\x99s signature. I agree with you\nthat such endorsement and signature are unnecessary, when disapproval is to be\ngiven, but I also think they may be regarded as surplusage, provided the President\nshall pocket veto the bill in the usual manner, and this is the safer course to pursue.\nIt may be said that since the method of approval is strictly prescribed, the method\nof disapproval is equally so and should be observed.\nANGUS D. MACLEAN\nAssistant Solicitor General\n\n27\n\n\x0c'


b"Executive Branch Encouragement of Contributions to a\nNicaraguan Opposition Party\nN o provision o f U nited S tates law precludes the P resident or m em bers o f his A dm inistration\nfrom encouraging private parties to contribute funds to the N ational O pposition U nion, a\nN icaraguan political party, for use in the scheduled N icaraguan elections.\n\nJanuary 25, 1990\nm em orandum\n\nO\n\np in io n f o r t h e\n\nfo r\n\nN\n\na t io n a l\n\nA\n\ns s is t a n t t o t h e\n\nS e c u r it y A\n\nP r e s id e n t\n\nf f a ir s\n\nThis responds to your request for our legal opinion on whether there are\nany legal prohibitions under United States law precluding the President and\nmembers o f his Administration from encouraging private parties to contrib\xc2\xad\nute funds to the National Opposition Union (\xe2\x80\x9cUNO\xe2\x80\x9d) for use in the scheduled\nNicaraguan elections. As we understand the proposal, the Administration\nwould not itself contribute funds, nor would it collect funds from others for\ndelivery to UNO. The Administration would merely encourage those who\nmight be interested to make contributions directly to the party for use in the\ncampaign.\nAfter a careful review, we have discovered no provision of United States\nlaw which would prevent the President or members of his Administration\nfrom encouraging private donors to contribute funds to a foreign political\nparty for use in a foreign election. The Legal Adviser of the State Depart\xc2\xad\nment has independently reviewed the legal authorities and has reached the\nsame conclusion.\nCertain statutes prohibit the provision of funds or other assistance by the\nUnited States to the \xe2\x80\x9cNicaraguan Resistance\xe2\x80\x9d or the \xe2\x80\x9cNicaraguan democratic\nresistance.\xe2\x80\x9d See, e.g.. Pub. L. No. 101-14, \xc2\xa7 7(a), 103 Stat. 37, 38 (1989);\nPub. L. No. 100-463, 102 Stat. 2270 (1988); Pub. L. No. 100-453, \xc2\xa7 104,\n102 Stat. 1904, 1905 (1988). Such statutes are inapplicable to the current\nproposal because the actions contemplated are not intended to support the\nactivities o f the Nicaraguan Resistance, a military organization, but rather\nthe political activities of UNO, a separate political entity. Further, we do\nnot believe that such statutes prevent the President and members o f his\nAdministration from encouraging private donations, as opposed to providing\nUnited States assistance.\nNor do we believe that the Act to Provide Assistance for Free and Fair\nElections in Nicaragua, Pub. L. No. 101-119, 103 Stat. 699 (1989), restricts\nthe President or members of his Administration from encouraging private\ndonations. That law made certain funds available to the Administrator o f the\nAgency for International Development \xe2\x80\x9cfor assistance for the promotion of\n\n7\n\n\x0cdemocracy and national reconciliation in Nicaragua.\xe2\x80\x9d Certain categories of\nfunds may only be made available \xe2\x80\x9cconsistent with\xe2\x80\x9d the Charter, or both the\nCharter and the standard operating procedures, of the National Endowment\nfor Democracy. The National Endowment for Democracy is \xe2\x80\x9ca private, non\xc2\xad\nprofit corporation . . . which is not an agency or establishment of the United\nStates Government.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 4411. The Endowment receives grants\nfrom the United States Information Agency. IsL \xc2\xa7 4412. However, \xe2\x80\x9c[f|unds\nmay not be expended, either by the Endowment or by any of its grantees, to\nfinance the campaigns of candidates for public office.\xe2\x80\x9d Id. \xc2\xa7 4414(a)(1).\nThe proviso in Public Law No. 101-119 restricting the use of funds made\navailable therein clearly applies only to the funds administered under that\nAct. Thus, it cannot be construed to express any congressional intent to\nprohibit the President or members of his Administration from encouraging\nprivate financial support for UNO. The proposal does not involve making\nany appropriated funds available to UNO, much less funds covered by the\nproviso in Public Law No. 101-119. We thus do not see how the proposed\nactivity could be in contravention of that act.\nThe proposal also would not implicate the Obey Amendment to the For\xc2\xad\neign Operations, Export Financing, and Related Programs Appropriations\nAct, 1990, Pub. L. No. 101-167, \xc2\xa7 582, 103 Stat. 1195, 1251.' The Obey\nAm endment prohibits the provision of the funds appropriated in Public Law\nNo. 101-167 to any foreign government, foreign person, or United States\nperson in exchange for undertaking any action which a United States official\nor employee would be expressly prohibited from taking under a provision of\nUnited States law. The Obey Amendment restrictions thus apply only to\nfunds appropriated under the Foreign Operations Act. Those restrictions are\ninapplicable here because the proposal, as we understand it, would not in\xc2\xad\nvolve the provision of funds appropriated in the Act to any person or foreign\n1The Obey Am endm ent provides in its entirety:\n(a) None o f the funds appropriated by this Act may be provided to any foreign government\n(including any instrum entality or agency thereof), foreign person, or United States person in\nexchange for that foreign government or person undertaking any action which is, if carried out\nby the U nited States Government, a United States official or employee, expressly prohibited by\na provision o f U nited States law.\n(b) F or the purpose o f this section the term \xe2\x80\x9cfunds appropriated by this Act\xe2\x80\x9d includes only (1)\nassistance o f any kind under the Foreign Assistance Act o f 1961; and (2) credits, and guaranties\nunder the Arm s Export Control Act.\n(c) N othing in this section shall be construed to limit \xe2\x80\x94\n(1) the ability o f the President, the Vice President, or any official or em ployee of the\nU nited States to make statements o r otherwise express their views to any party on any\nsubject;\n(2) the ability o f an official or em ployee of the United States to express the policies of\nthe President; or\n(3) the ability of an official or em ployee of the United States to communicate with any\nforeign country government, group or individual, either directly or through a third party,\nw ith respect to the prohibitions o f this section including the reasons for such prohibi\xc2\xad\ntions, and the actions, terms, or conditions which m ight lead to the removal of the prohi\xc2\xad\nbitions o f this section.\nForeign O perations. Export Financing, and Related Programs Appropriations Act, 1990, Pub. L. No.\n101-167, \xc2\xa7 582, 103 Stat. 1195, 1251.\n\n8\n\n\x0cgovernment. Further, we are aware of no provision of United States law\nexpressly prohibiting the United States from contributing funds to UNO.2\nFinally, the Obey Amendment specifically states that it shall not be con\xc2\xad\nstrued to limit \xe2\x80\x9cthe ability of the President, the Vice President, or any official\nor employee of the United States to make statements or otherwise express\ntheir views to any party on any subject,\xe2\x80\x9d nor to limit \xe2\x80\x9cthe ability o f an\nofficial or employee of the United States to express the policies of the Presi\xc2\xad\ndent.\xe2\x80\x9d\nWe have also reviewed the Hatch Act, 5 U.S.C. \xc2\xa7 7324(a)(1), and con\xc2\xad\nclude that it does not restrict Administration officials from encouraging\ndonations to a foreign political party. Section 7324(a)(1) prohibits \xe2\x80\x9c [a]n\nemployee in an Executive agency\xe2\x80\x9d from \xe2\x80\x9cus[ing] his official authority or\ninfluence for the purpose of interfering with or affecting the result of an\nelection.\xe2\x80\x9d We do not believe this provision applies extraterritorially to for\xc2\xad\neign elections. Laws are presumed to apply only territorially, unless the\ncontrary is clearly indicated in the the statute. Restatement (Second) of\nForeign Relations Law of the United States \xc2\xa7 38 (1965). Accord 1 Restate\xc2\xad\nment (Third) of the Foreign Relations Law of the United States \xc2\xa7 403, cmt.\ng (1987). See American Banana Co. v. United Fruit Co., 213 U.S. 347, 357\n(1909) (\xe2\x80\x9cAll legislation is prima facie territorial.\xe2\x80\x9d).\nEven without that presumption, it is clear that Congress\xe2\x80\x99s concern in\nenacting the Hatch Act was the interaction of federal employees with the\ndomestic political process. As the Supreme Court noted in upholding sec\xc2\xad\ntion 7324(a)(2) against a First Amendment challenge, the political history of\nthe United States has confirmed that \xe2\x80\x9cit is in the best interest of the country,\nindeed essential, that federal service should depend upon meritorious perfor\xc2\xad\nmance rather than political service, and that the political influence of federal\nemployees on others and on the electoral process should be limited.\xe2\x80\x9d United\nStates Civil Serv. Comm\xe2\x80\x99n v. National A ss\xe2\x80\x99n o f Letter Carriers, 413 U.S.\n548, 557 (1973) (emphasis added). Congress was concerned about attempts\nto utilize federal employees to staff domestic political machines, and wished\nto free such employees from coercion to vote on partisan lines or to perform\npolitical tasks in domestic elections. Id. at 565-66. As described by one\nCongressman, \xe2\x80\x9c[t]his proposed legislation seeks only to make certain the\ninherent right of every citizen of our land of the freedom of the ballot and\nhis or her right to vote as they may elect without interference from illicit\npolitical manipulators.\xe2\x80\x9d 84 Cong. Rec. 9603 (1939) (remarks of Rep.\nSpringer).3\n\n2 As discussed above, Public Law No. 101-119 does not constitute an express prohibition, but m erely a\nlimitation on the use of certain specified funds.\n\xe2\x80\x99 Further, we note that the President and Vice President are clearly not bound by the statute because they\nare not \xe2\x80\x9cem ployee[s]\xe2\x80\x9d as that term is used in title 5. See 5 U.S.C. \xc2\xa7 2105. A specific exem ption for the\nPresident and Vice President was removed from section 7324(d) as unnecessary. See 5 U.S.C. \xc2\xa7 7324,\nHistorical and Revision Notes.\n\n9\n\n\x0cWe also believe that the Anti-Lobbying Act, 18 U.S.C. \xc2\xa7 1913, is inappli\xc2\xad\ncable because Presidential encouragement of support for UNO would not in\nany way be \xe2\x80\x9cintended or designed to influence in any manner a Member o f\nC ongress'' 18 U.S.C. \xc2\xa7 1913 (emphasis added).\nWe are aware that 31 C.F.R. \xc2\xa7 540.205 prohibits the export of \xe2\x80\x9cgoods\xe2\x80\x9d to\nNicaragua. But a prohibition on export of \xe2\x80\x9cgoods\xe2\x80\x9d does not apply to politi\xc2\xad\ncal contributions of money. Indeed, the regulation was promulgated under\nthe authority given the President by the International Emergency Economic\nPowers Act, 50 U.S.C. \xc2\xa7\xc2\xa7 1701-1706, where the distinction between orders\nblocking \xe2\x80\x9cgoods\xe2\x80\x9d and those blocking \xe2\x80\x9cproperty,\xe2\x80\x9d including monetary pay\xc2\xad\nments, is well established. Compare 31 C.F.R. \xc2\xa7 535.201 (prohibiting all\nIranian \xe2\x80\x9cproperty\xe2\x80\x9d in the United States from being \xe2\x80\x9ctransferred, paid, ex\xc2\xad\nported, withdrawn or otherwise dealt in except as authorized\xe2\x80\x9d).\nMoreover, even if some provision of law purported to prohibit the President\nfrom encouraging financial support for UNO, we do not believe that the law\nwould be constitutional. The Department of Justice made this point publicly:\n[N]o law can constitutionally prevent the President or his aides\nunder his authority from urging private citizens to contribute\nfunds for foreign entities to which donations can legally be\nmade. The President has independent authority from two dis\xc2\xad\ntinct sources to solicit such funds. First and foremost, the\nPresident \xe2\x80\x9cis a representative of the people, just as the mem\xc2\xad\nbers of the Senate and of the House are.\xe2\x80\x9d Myers v. United\nStates, [272 U.S. 52, 123 (1926)]. It is therefore essential that\nthe President be able to engage in a dialogue with the citizens\no f the United States. He would be unable to fulfill many of\nhis constitutional duties if he were not permitted to communi\xc2\xad\ncate with those people whom he represents and to ask them to\nundertake any legal act.\nM oreover . . . in the area of foreign affairs the President\xe2\x80\x99s\npowers are \xe2\x80\x9cplenary and exclusive.\xe2\x80\x9d [United States v. CurtissWright Export Corp., 299 U.S. 304, 319 (1936)]. This requires\nthat he be free to gauge public opinion and to lead the country\nin the direction he thinks most prudent. He may inform the\npublic of their legal rights and responsibilities and encourage\nthem to take any legal action that would support one of his\nforeign policy positions.\nM emorandum of Law of the United States Filed by the Department of Jus\xc2\xad\ntice as Amicus Curiae, United States v. North, Crim. No. 88-0080-02 at 30-31\n(D.D.C. Nov. 18, 1988).\nWe are not aware of any reporting requirement which would be appli\xc2\xad\ncable to actions of the sort contemplated in the proposal. In particular, we\n\n10\n\n\x0cdo not believe that Administration officials encouraging donations to a for\xc2\xad\neign political party would be required to register as \xe2\x80\x9cagents of a foreign\nprincipal\xe2\x80\x9d pursuant to the Foreign Agents Registration Act of 1938, as\namended, 22 U.S.C. \xc2\xa7\xc2\xa7 611-621. That statute provides that \xe2\x80\x9c [n]o person\nshall act as an agent of a foreign principal unless\xe2\x80\x9d he has registered with the\nAttorney General or is exempt from the registration requirements. 22 U.S.C.\n\xc2\xa7 612(a). The term \xe2\x80\x9cforeign principal\xe2\x80\x9d includes a foreign political party. Id.\n\xc2\xa7 611(b)(1). An \xe2\x80\x9cagent of a foreign principal\xe2\x80\x9d is\nany person who acts as an agent, representative, employee, or\nservant, or any person who acts in any other capacity at the\norder, request, or under the direction or control, of a foreign prin\xc2\xad\ncipal or of a person any of whose activities are directly or indirectly\nsupervised, directed, controlled, financed, or subsidized in whole\nor in major part by a foreign principal, and who directly or through\nany other person\xe2\x80\x94\n(i) engages within the United States in political activities\nfo r or in the interests o f such foreign principal,\n(ii) acts within the United States as a public relations counsel,\npublicity agent, information-service employee or political con\xc2\xad\nsultant fo r or in the interests o f such foreign principal,\n(iii) within the United States solicits, collects, disburses, or\ndispenses contributions, loans, money, or other things of\nvalue fo r or in the interest o f such foreign principal.\n22 U.S.C. \xc2\xa7 611(c)(1) (emphasis added).\nWe do not believe a government official, acting on behalf of the United\nStates to carry out its foreign policy, is acting \xe2\x80\x9cas an agent, representative,\nemployee, or servant, or . . . at the order, request, or under the direction or\ncontrol, of a foreign principal\xe2\x80\x9d within the meaning of section 611(c)(1).\nSuch officials are acting under the direction and control of the United States,\nrather than of the foreign principal, and they act to further the interests of\nthe United States, which may or may not coincide with those of the foreign\nentity. Moreover, this reading best comports with the purposes o f the For\xc2\xad\neign Agents Registration Act. \xe2\x80\x9cThe general purpose of the legislation was to\nidentify agents of foreign principals who might engage in subversive acts or\nin spreading foreign propaganda, and to require them to make public record\no f the nature of their employment.\xe2\x80\x9d Viereck v. United States, 318 U.S. 236,\n241 (1943). Thus, the aim of the legislation was to protect the United States\nGovernment from outside threats, rather than to constrain the duly autho\xc2\xad\nrized actions of government officials.\nFurthermore, we do not believe that the contemplated conduct would vio\xc2\xad\nlate the ethics laws.4 As a general matter, however, all officials who will be\ninvolved in providing such encouragement should be careful to avoid any\nappearance of impropriety.5 Thus, for example, it would be unwise for an\n\n11\n\n\x0cofficial to encourage a contribution from a corporation that has a direct inter\xc2\xad\nest in a matter pending before the official, even if there is no indication of a\nquid pro quo. It is, of course, impossible to detail all such situations in\nadvance; in order to avoid any appearance of impropriety, additional advice\nshould be sought from the White House Counsel\xe2\x80\x99s Office as particular ques\xc2\xad\ntions arise.\nFinally, the proposed arrangement could not be deemed an improper aug\xc2\xad\nmentation of executive branch appropriations. Mere encouragement of private\nactivity does not constitute augmentation. Private individuals would be making\ncontributions directly to UNO, rather than to the United States Government.\nThe government would exercise no control over the donated funds. Thus, funds\navailable for executive branch purposes would not be increased.\nThe foregoing addresses the Administration\xe2\x80\x99s encouragement of dona\xc2\xad\ntions to foreign political parties as a matter of domestic law. We have been\ninform ed by the State Department that foreign donations are legal under\nNicaraguan law if they comply with certain procedures. We understand that\nmembers of the Administration will encourage donors to contact UNO, which\nwill then take responsibility for complying with Nicaraguan law. Were a\ndonor to violate Nicaraguan law, he would presumably be subject to pros\xc2\xad\necution in that country. Even if the actions of a donor were found illegal\nunder Nicaraguan law, however, that fact alone would not make the actions\no f the donor, or of any Administration official who had encouraged him,\nim proper under United States law. While we do not address generally the\ninternational law implications o f these actions, we note that the encourage\xc2\xad\nment o f acts that are legal under Nicaraguan law could not be viewed under\ninternational law as interfering with Nicaragua\xe2\x80\x99s internal affairs.6\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n4 For exam ple, section 208 o f title 18, United States Code, which concerns official acts affecting a\npersonal financial interest, would only apply if an official had knowledge that he, or certain other\npersons with whom he is associated, had a financial interest that would be affected by the provision of\nm oney to UNO. T his statute might conceivably apply if assistance to UNO were channeled through\npersons or entities in which an official involved, or persons with whom he is associated, had a financial\ninterest.\n3 In particular, officials should not in any way indicate that they will be influenced in the performance of\ntheir duties in return for contributions to UNO. Such conduct would violate the federal bribery statute.\n18 U .S.C. \xc2\xa7 201 (b)(2) (\xe2\x80\x9c W hoever. . . being a public o fficial. . . directly or indirectly, corruptly demands,\nseeks, receives, accepts, or agrees to receive or accept anything o f value personally or fo r any other\nperson o r entity, in return for . .. being influenced in the performance of any official a c t . . . [shall be\npunished as prescribed].\xe2\x80\x9d) (emphasis added).\n\xe2\x80\x98 W hile we do not believe there is any general legal prohibition against contributions to Nicaraguan\npolitical parties, we have not addressed legal restraints which may be applicable to donors in specific\nsituations. Thus, donors interested in doing business in Nicaragua may wish to consider the applicabil\xc2\xad\nity o f the Foreign Corrupt Practices Act, 15 U.S.C. \xc2\xa7\xc2\xa7 78dd-l, 78dd-2.\n\n12\n\n\x0c"


b'Whether a Presidential Pardon Expunges Judicial and\nExecutive Branch Records of a Crime\nA presidential pardon granted under Article II, Section 2 of the Constitution does not automatically\nexpunge Judicial or Executive Branch records relating to the conviction or underlying offense.\n\nAugust 11, 2006\n\nMEMORANDUM OPINION FOR THE UNITED STATES PARDON ATTORNEY\nYou have asked us whether a presidential pardon granted under Article II,\nSection 2 of the Constitution has the effect of automatically expunging Judicial or\nExecutive Branch records relating to the conviction or underlying offense. See\nMemorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, from Roger C. Adams, Pardon Attorney (June\n1, 2005). We conclude that it does not.\nI.\nThe Pardon Clause authorizes the President \xe2\x80\x9cto grant Reprieves and Pardons for\nOffenses against the United States, except in Cases of Impeachment.\xe2\x80\x9d U.S. Const.\nart. II, \xc2\xa7 2. Previous opinions of this Office and of the Attorney General have\nextensively discussed the nature of pardons and their consequences for a wide\nvariety of statutory disabilities. See, e.g., Effects of a Presidential Pardon, 19 Op.\nO.L.C. 160 (1995) (concluding that a pardon precludes the Attorney General from\ndeporting criminal aliens and removes state firearms disabilities imposed as a\nresult of a conviction of a federal crime); Memorandum for Andrew Oehmann,\nExecutive Assistant to the Attorney General, from Norbert Schlei, Assistant\nAttorney General, Office of Legal Counsel, Re: Effect of Pardon on Disability to\nHold Federal Office (Aug. 12, 1963); Effect of Pardon on Statute Making Persons\nConvicted of Felonies Ineligible for Enlistment in the Army, 39 Op. Att\xe2\x80\x99y Gen. 132\n(1938) (despite pardon, convicted felon could be barred from enlisting in the\nArmy); Army\xe2\x80\x94Enlistment\xe2\x80\x94Pardon, 22 Op. Att\xe2\x80\x99y Gen. 36 (1898) (pardon did not\npreclude application of statute prohibiting reenlistment of soldier whose previous\nservice had not been \xe2\x80\x9chonest or faithful\xe2\x80\x9d). As these opinions confirm, a presidential pardon removes, either conditionally or unconditionally, the punitive legal\nconsequences that would otherwise flow from conviction for the pardoned offense.\nA pardon, however, does not erase the conviction as a historical fact or justify the\nfiction that the pardoned individual did not engage in criminal conduct. A pardon,\ntherefore, does not by its own force expunge judicial or administrative records of\nthe conviction or underlying offense.\nChief Justice Marshall defined a presidential pardon as an act of grace that\n\xe2\x80\x9cexempts the individual, on whom it is bestowed, from the punishment the law\n\n104\n\n\x0cWhether a Presidential Pardon Expunges Records of a Crime\n\ninflicts for a crime he has committed.\xe2\x80\x9d United States v. Wilson, 32 U.S. (7 Pet.)\n150, 160 (1833). \xe2\x80\x9cIt is the private, though official, act of the executive magistrate,\ndelivered to the individual for whose benefit it is intended, and not communicated\nofficially to the court.\xe2\x80\x9d Id. at 160\xe2\x80\x9361. In that sense, a presidential pardon is in\ncontrast to a pardon by act of parliament in England, of which \xe2\x80\x9ca court must ex\nofficio, take notice\xe2\x80\x9d because \xe2\x80\x9cit is considered as a public law; having the same\neffect on the case as if the general law punishing the offense had been repealed or\nannulled.\xe2\x80\x9d Id. at 163.\nThe Executive Branch\xe2\x80\x99s long-held understanding of the scope of the pardon\npower reflects that view. In a previous opinion prepared for the Pardon Attorney,\nwe concluded that although \xe2\x80\x9ca pardon removes or prevents the attachment of all\nconsequences that are based on guilt for the offense,\xe2\x80\x9d that \xe2\x80\x9cdoes not mean that a\npardoned person cannot be held accountable for the conduct underlying the\noffense by a governmental entity seeking to determine suitability for a position of\nconfidence or trust, adherence to a code of conduct, or eligibility for a benefit.\xe2\x80\x9d\nEffects of a Presidential Pardon, 19 Op. O.L.C. at 165. This distinction between\nthe consequences flowing from the conviction and those flowing from the conduct\nunderlying the conviction is well established. In 1898, Attorney General Griggs\nopined that \xe2\x80\x9cwhilst the President\xe2\x80\x99s pardon restores the criminal to his legal rights\nand fully relieves him of the disabilities legally attaching to his conviction, it does\nnot destroy an existing fact, viz. that his service was not honest and faithful.\xe2\x80\x9d\nArmy\xe2\x80\x94Enlistment\xe2\x80\x94Pardon, 22 Op. Att\xe2\x80\x99y Gen. at 39. See also Naval Service\xe2\x80\x94\nDesertion\xe2\x80\x94Pardon, 31 Op. Att\xe2\x80\x99y Gen. 225, 227 (1918) (\xe2\x80\x9cAn unconditional pardon abates whatever punishment flows from the commission of the pardoned\noffense, but can not in the nature of things eradicate the factum which is made a\ncriterion of the fitness.\xe2\x80\x9d).\nIn developing our views, we have endorsed the formulation that appears in\nProfessor Samuel Williston\xe2\x80\x99s seminal article on pardons:\nThe pardon removes all legal punishment for the offence. Therefore\nif the mere conviction involves certain disqualifications which would\nnot follow from the commission of the crime without conviction, the\npardon removes such disqualification. On the other hand, if character\nis a necessary qualification and the commission of a crime would\ndisqualify even though there had been no criminal prosecution for\nthe crime, the fact that the criminal has been convicted and pardoned\ndoes not make him any more eligible.\nSamuel Williston, Does a Pardon Blot Out Guilt?, 28 Harv. L. Rev. 647, 653\n(1915). This passage is quoted in part in Effects of a Presidential Pardon, 19 Op.\nO.L.C. at 164.\nIn 1963, we applied this understanding of the pardon power when confronted\nwith the question whether a presidential pardon would lift a prohibition on holding\n\n105\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\n\xe2\x80\x9cany office of honor, trust, or profit under the United States\xe2\x80\x9d imposed as a result of\na conviction under 18 U.S.C. \xc2\xa7 281 (1952). See Effect of Pardon on Disability to\nHold Federal Office. We concluded that although a pardon for that offense would\nremove the statutory disability, it \xe2\x80\x9cwould not obliterate all reference to the past\nconduct of the person pardoned.\xe2\x80\x9d Id. at 1. Accordingly, the pardonee would\nhenceforth be eligible to hold a federal office\xe2\x80\x94which he would not have been\nwithout the pardon\xe2\x80\x94but would not be entitled to be considered as if he had never\nengaged in the criminal conduct that led to the conviction. Put simply, a pardon\n\xe2\x80\x9cdoes not change the past and does not do away with the facts underlying the\nconviction.\xe2\x80\x9d Id. at 7.\nOur previous opinions thus strongly suggest that a pardon does not by its own\nforce require the expungement of all records of a criminal conviction. The one\nfederal case addressing the nature of a presidential pardon and the resulting\nrelationship between pardon and judicial expungement reached the same conclusion. United States v. Noonan, 906 F.2d 952 (3d Cir. 1990), involved an expungement motion brought by a man convicted, and later pardoned, for failing to submit\nfor military induction. The court of appeals held that the President\xe2\x80\x99s pardon \xe2\x80\x9cdoes\nnot eliminate [the] conviction and does not \xe2\x80\x98create any factual fiction\xe2\x80\x99 that\nNoonan\xe2\x80\x99s conviction had not occurred to justify expunction of his criminal court\nrecord.\xe2\x80\x9d Id. at 960. Instead, expungement of judicial records is an extraordinary\nremedy, which the courts are willing to grant only where \xe2\x80\x9cthe harm to the\nindividual caused by the continued existence of the records\xe2\x80\x9d outweighs \xe2\x80\x9cthe\ngovernmental interest in maintenance of the records.\xe2\x80\x9d Id. at 957. The court\nreasoned that a rule granting presidential pardons the necessary effect of expunging records would be difficult, if not impossible, to square with that individualized\ndetermination. 1\nNoonan also noted the well-accepted understanding, both in the American\ntradition and in the English tradition from which our Pardon Clause borrows, see\nWilson, 32 U.S. (7 Pet.) at 159\xe2\x80\x9360, that although pardons relieve the offender of\nwhatever legal disabilities would otherwise attach to the conviction, they do not\nsimultaneously \xe2\x80\x9craise the inference that the person pardoned had not in fact\ncommitted the crime for which the pardon was granted.\xe2\x80\x9d Noonan, 906 F.2d at\n958\xe2\x80\x9360 (quoting R. v. Foster, 1 Q.B. 115, 129 (1984)); see also Hirschberg v.\nCFTC, 414 F.3d 679, 682 (7th Cir. 2005) (\xe2\x80\x9c[T]he legal effect of a presidential\n1\nAs you have pointed out, Noonan\xe2\x80\x99s value as precedent may have been called into question by the\nThird Circuit\xe2\x80\x99s subsequent decision in United States v. Dunegan, 251 F.3d 477 (3d Cir. 2001). There,\nthe court held that \xe2\x80\x9cin the absence of any applicable statute enacted by Congress, or an allegation that\nthe criminal proceedings were invalid or illegal, a District Court does not have the jurisdiction to\nexpunge a criminal record.\xe2\x80\x9d Id. at 480. The Third Circuit pointed out that because Noonan skipped over\nthis threshold inquiry, the opinion does not stand for the proposition that federal courts necessarily have\njurisdiction to entertain motions for expungement. Id. at 479. Although Dunegan certainly suggests that\nthe court in Noonan exceeded its authority in addressing the merits of the expungement issue, it does\nnot cast doubt on the soundness of Noonan\xe2\x80\x99s legal reasoning.\n\n106\n\n\x0cWhether a Presidential Pardon Expunges Records of a Crime\n\npardon is to preclude further punishment for the crime, but not to wipe out the fact\nof conviction.\xe2\x80\x9d). Most, but not all, state courts have reached a similar conclusion\nwith respect to state pardons. See R.J.L. v. State, 887 So. 2d. 1268, 1278\xe2\x80\x9380 (Fla.\n2004) (reporting that of the nine states whose courts have considered the issue, six\nhave concluded that a pardoned individual is not entitled to records expungement).\nThe Florida Supreme Court in R.J.L. adopted the majority position, holding that \xe2\x80\x9ca\npardon does not have the effect of erasing guilt so that a conviction is treated as\nthough it had never occurred.\xe2\x80\x9d Id. at 1281.\nA further obstacle to observing a necessary link between pardon and disregarding the historical fact of conviction is that there appears to be no single understanding of what \xe2\x80\x9cexpungement\xe2\x80\x9d means. Expungement has been defined in many\nways, some overlapping and some inconsistent. An expungement order may\nrequire the physical destruction of records, United States v. Johnson, 941 F.2d\n1102, 1111 (10th Cir. 1991), or simply be \xe2\x80\x9csimilar to an order not to report a\nconviction,\xe2\x80\x9d United States v. Sweeney, 914 F.2d 1260, 1262 (9th Cir. 1990). The\nSupreme Court has recognized that state expungement statutes vary:\nSome speak of expunging the conviction, others of \xe2\x80\x9csealing\xe2\x80\x9d the file\nor of causing the dismissal of the charge. The statutes also differ in\ntheir actual effect. Some are absolute; others are limited. Only a minority address questions such as whether the expunged conviction\nmay be considered in sentencing for a subsequent offense or in setting bail on a later charge, or whether the expunged conviction may\nbe used for impeachment purposes, or whether the convict may deny\nthe fact of his conviction.\nDickerson v. New Banner Inst., Inc., 460 U.S. 103, 121\xe2\x80\x9322 (1983). In short, the\nCourt concluded, the variable uses of expungement by the States \xe2\x80\x9cprovide nothing\nless than a national patchwork.\xe2\x80\x9d Id. 2\n\n2\nVery few federal statutes touch upon expungement. Under the Federal Sentencing Guidelines,\n\xe2\x80\x9cexpunged convictions\xe2\x80\x9d are not counted toward a defendant\xe2\x80\x99s criminal history \xe2\x80\x9cbut may be considered\nunder \xc2\xa7 4A1.3 (Adequacy of Criminal History Category).\xe2\x80\x9d U.S. Sentencing Guidelines Manual\n\xc2\xa7 4A1.2(j) (2005); see id. \xc2\xa7 4A1.3(a)(1). Under section 4A1.3, \xe2\x80\x9cif reliable information indicates that the\ndefendant\xe2\x80\x99s criminal history category substantially under-represents the seriousness of the defendant\xe2\x80\x99s\ncriminal history or the likelihood that the defendant will commit other crimes, an upward departure\nmay be warranted.\xe2\x80\x9d Id. To create uniformity in the treatment of \xe2\x80\x9cexpunged convictions,\xe2\x80\x9d an application\nnote to the Sentencing Guidelines provides:\n\nConvictions Set Aside or Defendant Pardoned. A number of jurisdictions have various\nprocedures pursuant to which previous convictions may be set aside or the defendant\nmay be pardoned for reasons unrelated to innocence or errors of law, i.e., in order to\nrestore civil rights or to remove the stigma associated with a criminal conviction. Sentences resulting from such convictions are to be counted. However, expunged convictions are not counted.\nId. \xc2\xa7 4A1.2, cmt. n.10 (2005).\n\n107\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\nThe primary support for concluding that a pardon requires expungement of all\nofficial references to the pardoned crime appears in dicta in the Supreme Court\xe2\x80\x99s\ndecision in Ex Parte Garland, 71 U.S. (4 Wall.) 333 (1866). Garland was an\nArkansas attorney who served as a member of the Confederate Congress during\nthe Civil War. He received a full pardon from President Lincoln for his activities,\nbut was still barred by federal statute from practicing before the Supreme Court\nbecause he could not take the requisite oath that he had never given aid to enemies\nof the United States. After holding that the statute requiring the oath was an\nunconstitutional bill of attainder, the Supreme Court addressed the nature of a\npardon:\nA pardon reaches both the punishment prescribed for the offence and\nthe guilt of the offender: and when the pardon is full, it releases the\npunishment and blots out of existence the guilt, so that in the eye of\nthe law the offender is as innocent as if he had never committed the\noffence.\nId. at 380\xe2\x80\x9381. As this Office has previously explained, however, Garland\xe2\x80\x99s broad\nstatement has \xe2\x80\x9cnot been applied literally by the courts, including the Supreme\nCourt.\xe2\x80\x9d Effect of Pardon on Disability to Hold Federal Office at 5. Indeed, as the\nThird Circuit observed in Noonan, it was not long before the Supreme Court\n\xe2\x80\x9cmade clear that it was not accepting the Garland dictum that a pardon \xe2\x80\x98blots out\nof existence the guilt.\xe2\x80\x99\xe2\x80\x9d 906 F.2d at 958. The Court\xe2\x80\x99s decision in Carlesi v. New\nYork, 233 U.S. 51 (1914), considered the effect of a pardon on a state\xe2\x80\x99s habitualoffender law. The Court observed that application of the law would be unconstitutional to the extent it took \xe2\x80\x9cinto consideration a prior conviction of an offense\ncommitted by the same offender . . . despite a pardon,\xe2\x80\x9d if it were \xe2\x80\x9cin any just sense\na punishment for such prior crime.\xe2\x80\x9d Id. at 57. In contrast, however, the Court made\nclear that the prior offense could be used \xe2\x80\x9cas a circumstance of aggravation\xe2\x80\x9d\xe2\x80\x94and\ncould thus lead to an enhanced penalty for a new crime\xe2\x80\x94\xe2\x80\x9ceven although for such\npast offenses there had been a pardon granted.\xe2\x80\x9d Id. at 59. This distinction makes\nsense only if a pardon does not preclude consideration of the underlying offense in\nmaking subsequent decisions about the pardonee, and is incompatible with the\nconclusion that a pardon blots out all record of the crime.\nIn subsequent cases, the Supreme Court backed even further away from Garland\xe2\x80\x99s expansive dictum. Thus, in Burdick v. United States, 236 U.S. 79 (1915),\nwhich addressed whether a would-be pardonee could refuse a pardon, the Court\nwrote that a pardon \xe2\x80\x9ccarries an imputation of guilt; acceptance a confession of it.\xe2\x80\x9d\nId. at 94. This understanding seems inconsistent with Garland\xe2\x80\x99s suggestion that a\npardoned individual is made as innocent as one who never committed the crime in\nthe first place. Similarly, Justice Holmes\xe2\x80\x99s observation for the Court in Biddle v.\nPerovich, 274 U.S. 480, 486 (1927), that a pardon is \xe2\x80\x9cthe determination of the\nultimate authority that the public welfare will be better served by inflicting less\n\n108\n\n\x0cWhether a Presidential Pardon Expunges Records of a Crime\n\nthan what the judgment fixed,\xe2\x80\x9d suggests that although a pardon lessens the legal\neffects of a criminal judgment, it does not erase that judgment as historical fact.\nII.\nIt follows from this analysis that pardon and expungement are distinct actions.\nA pardon may in some cases affect the question of expungement, but such effect\nwill depend, among other things, on which branch of the government possesses the\nrecords. Because \xe2\x80\x9cthe power to pardon is an executive prerogative of mercy, not of\njudicial record-keeping,\xe2\x80\x9d a pardon has no immediate effect on the Judiciary or\njudicial records. Noonan, 906 F.2d at 955. For similar reasons, courts rarely order\nexpungement of Executive Branch records: \xe2\x80\x9cThe President, not the district court,\nruns the executive branch\xe2\x80\x94and it is he who decides how that branch will function.\xe2\x80\x9d Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 699 (5th Cir. 1997)\n(\xe2\x80\x9cThere is no constitutional basis for a \xe2\x80\x98right to expungement\xe2\x80\x99\xe2\x80\x9d of Executive\nBranch records.). The Seventh Circuit, in United States v. Janik, 10 F.3d 470 (7th\nCir. 1993), held that a petition for expungement of Executive Branch records must\nbe made directly to the Executive Branch because \xe2\x80\x9cfederal courts are without\njurisdiction to order an Executive Branch agency to expunge what are admittedly\naccurate records of a person\xe2\x80\x99s indictment and conviction.\xe2\x80\x9d Id. at 472. The majority\nof circuits have found that federal courts do have the power to enter an expungement order against the Executive Branch, but even they warn \xe2\x80\x9cexpungement\nshould rarely, if ever, be employed by the courts against executive agencies.\xe2\x80\x9d\nSealed Appellant, 130 F.3d at 698.\nOn the other hand, an order to seal or destroy Executive Branch records may\ncome from the President rather than the courts. The President may craft a pardon\nto fit particular circumstances. 3 In rare cases, Presidents have chosen to grant\npardons that state the reason for granting the pardon, such as the President\xe2\x80\x99s\nconclusion that the evidence upon which conviction rested is questionable or that\nthe pardonee is innocent of the offense. 4 Pardons that address the innocence of the\n3\nFor example, \xe2\x80\x9cthe President may grant a pardon on the condition that the offender pay any courtordered restitution imposed before the pardon was issued.\xe2\x80\x9d Effects of a Presidential Pardon, 19 Op.\nO.L.C. at 168 n.7. On the other hand, the President can issue a pardon commonly labeled \xe2\x80\x9cA Full and\nUnconditional Pardon,\xe2\x80\x9d which does not impose any requirements. It is the President\xe2\x80\x99s prerogative to\npardon prior to conviction, after conviction, or only after the sentence has been served. See id. at 164\n(\xe2\x80\x9cThroughout the Nation\xe2\x80\x99s history, Presidents have asserted the power to issue pardons prior to\nconviction, and the consistent view of the Attorneys General has been that such pardons have as full an\neffect as pardons issued after conviction.\xe2\x80\x9d).\n4\nPresident Lyndon Johnson prefaced a pardon by stating, \xe2\x80\x9cWhereas it has been made to appear to\nme that the said Carl Hirdler Buck was unjustly convicted of the aforesaid offense and is innocent of\nsaid charge; that he did not commit any of the acts charged; that his acts, deeds or omissions in\nconnection with such charge constituted no offense against the United States, or any State, Territory or\nthe District of Columbia; and that he did not by misconduct or neglect cause or bring about his own\nprosecution,\xe2\x80\x9d a pardon \xe2\x80\x9cis in order.\xe2\x80\x9d Pardon of Carl Hirdler Buck (Sept. 10, 1965). President Franklin\nRoosevelt prefaced a pardon with less certain language, stating that a pardon was appropriate because\n\n109\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\npardonee have not to date also commanded expungement of Executive Branch\nrecords of the offense. If a President chose simultaneously to issue a pardon and\norder the Executive Branch to expunge any such records, we believe that order\nwould have the effect intended, subject to any statutory constraints on executive\nrecord-keeping. 5 Even in that case, however, the pardon would not automatically\nexpunge the records; it would be the President\xe2\x80\x99s separate expungement order that\nwould require administrative agencies to take action.\nUnderstood this way, a presidential pardon does not operate to erase automatically the records relating to the pardoned offense. The relevant judicial and\nexecutive records preserve an important set of historical facts concerning the\nindividual\xe2\x80\x99s criminal history. Those records may describe the circumstances of the\noffense and the charges brought against the accused, as well as a court\xe2\x80\x99s ultimate\ndisposition of the government\xe2\x80\x99s case. None of those facts or circumstances is\nautomatically erased or altered by a subsequent pardon. The pardon instead\neliminates any punitive consequences that would otherwise flow from the\nindividual\xe2\x80\x99s guilt. But where the facts and circumstances of the underlying\nconduct continue to be relevant for a variety of decisions that may ultimately be\nmade about the pardonee, the records memorializing and verifying those facts\ncontinue to exist and can help ensure that such decisions are made fairly and\naccurately.\nIn reaching this conclusion, we do not suggest that a pardon could never be\nrelevant in determining whether to expunge Judicial or Executive Branch records.\nWe conclude only that a pardon does not expunge such records automatically and\ntherefore that the relevant record-keeper is not obliged by virtue of a pardon to\npurge its files of all references to the pardoned offense.\nMICHELLE E. BOARDMAN\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n\xe2\x80\x9cit has been made to appear to me that there is grave doubt of the guilt of the said William F. Leishear\nof the crime of which he was convicted.\xe2\x80\x9d Pardon of William F. Leishear (Oct. 12, 1942).\n5\n\xe2\x80\x9cThe Attorney General shall . . . acquire, collect, classify, and preserve identification, criminal\nidentification, crime, and other records,\xe2\x80\x9d and shall \xe2\x80\x9cexchange such records and information with, and\nfor the official use of, authorized officials of the Federal Government, including the United States\nSentencing Commission, the States, cities, and penal and other institutions.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 534(a)(1),\n(a)(4) (2000 & Supp. V 2005). At least one statute simultaneously provides for the expungement of\ncriminal records under certain circumstances and the preservation of non-public records by the\nDepartment of Justice. The non-public record is kept in part in order to foreclose a second expungement. See 18 U.S.C. \xc2\xa7 3607(b) (2000) (\xe2\x80\x9cA nonpublic record of . . . a conviction that is the subject of an\nexpungement order under [this section], shall be retained by the Department of Justice solely for the\npurpose of use by the courts in determining in any subsequent proceeding whether a person qualifies\nfor the disposition provided in [one section] or the expungement provided in\xe2\x80\x9d another.).\n\n110\n\n\x0c'