b'Status of the Director of Central Intelligence Under the\nNational Security Intelligence Reform Act of 2004\nAt the time the National Security Intelligence Reform Act of 2004 takes effect, the then-current\nDirector of Central Intelligence would not require a new appointment to the office of Director of the\nCentral Intelligence Agency should the President wish him to serve in that position.\n\nJanuary 12, 2005\n\nMEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT\nThe National Security Intelligence Reform Act of 2004 (the \xe2\x80\x9cIntelligence Reform Act\xe2\x80\x9d) restructures the management of the intelligence community. Among\nother things, the Intelligence Reform Act abolishes the title \xe2\x80\x9cDirector of Central\nIntelligence\xe2\x80\x9d (\xe2\x80\x9cDCI\xe2\x80\x9d) and assigns certain of the functions currently performed by\nthe DCI to an office entitled \xe2\x80\x9cDirector of National Intelligence\xe2\x80\x9d (\xe2\x80\x9cDNI\xe2\x80\x9d) and\ncertain of those functions to an office entitled \xe2\x80\x9cDirector of the Central Intelligence\nAgency\xe2\x80\x9d (\xe2\x80\x9cDCIA\xe2\x80\x9d). You have asked whether, at the time the Intelligence Reform\nAct becomes effective, the current DCI would require a new appointment to the\noffice of DCIA should the President wish him to serve in that position. We\nconclude that a new appointment would not be required.\nI.\nThe current DCI was nominated by the President and confirmed by the Senate.\nUnder current law, the DCI \xe2\x80\x9c(1) serve[s] as head of the United States intelligence\ncommunity; (2) act[s] as the principal adviser to the President for intelligence\nmatters related to the national security; and (3) serve[s] as head of the Central\nIntelligence Agency.\xe2\x80\x9d National Security Act of 1947 (\xe2\x80\x9cNSA\xe2\x80\x9d) \xc2\xa7 102(a), 50 U.S.C.\n\xc2\xa7 403(a) (2000).\nOn December 17, 2004, the President signed into law the Intelligence Reform\nand Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638\n(\xe2\x80\x9cIRTPA\xe2\x80\x9d), title I of which is the Intelligence Reform Act. The Intelligence\nReform Act will take effect some time in the next six months. IRTPA \xc2\xa7 1097, 118\nStat. at 3698. At that time, a position with the title DCI will no longer exist;\ninstead, there will be a DNI and a DCIA. Id. \xc2\xa7 1011(a) (new NSA \xc2\xa7\xc2\xa7 102(a) &\n104A(a)), 118 Stat. at 3644, 3660. Both of those positions, the Intelligence Reform\nAct provides, \xe2\x80\x9cshall be appointed by the President, by and with the advice and\nconsent of the Senate.\xe2\x80\x9d Id. \xc2\xa7 1011(a) (new NSA \xc2\xa7\xc2\xa7 102(a) & 104A(a)), 118 Stat. at\n3644, 3660.\nYou have asked whether, in light of these statutory changes, when the Intelligence Reform Act takes effect the then-current DCI would require a new appointment if the President wishes him to serve as DCIA. Our analysis of the applicable\n\n28\n\n\x0cStatus of the Director of Central Intelligence Under the Intelligence Reform Act\n\nstatutory and constitutional provisions leads us to conclude that a new appointment\nwould not be required.\nII.\nAlthough the Intelligence Reform Act does not speak directly to this question,\nwe believe the better reading of the statute is that it does not require a new\nappointment of the then-current DCI if the President wishes him to serve as DCIA.\nThat conclusion is reinforced by the fact that a contrary reading would raise\nserious constitutional questions\xe2\x80\x94Congress cannot remove a sitting officer except\nby impeachment or by abolishing the position. A comparison of the duties of the\nDCIA and DCI shows that the position has not been abolished. Consequently, a\nnew appointment is not required.\nA.\n1.\nOur conclusion follows, first, from a comparison of the statutory functions and\nduties of the DCIA and the DCI. Such a comparison shows that the office of DCIA\nis substantially the same office as that of DCI, albeit with a new title and a\nreduction of duties. Because the office is the same and because Congress did not\nclearly indicate a contrary intent, we conclude that Congress did not intend to\nrequire a new appointment of the then-current DCI to serve as DCIA.\nLike the current DCI, the DCIA will \xe2\x80\x9c(1) serve as the head of the Central Intelligence Agency\xe2\x80\x9d and will \xe2\x80\x9c(2) carry out\xe2\x80\x9d various other \xe2\x80\x9cspecified\xe2\x80\x9d \xe2\x80\x9cresponsibilities\xe2\x80\x9d related to intelligence collection. Compare IRTPA \xc2\xa7 1011(a) (new NSA\n\xc2\xa7 104A(c)), 118 Stat. at 3660, with NSA \xc2\xa7 102(a), 50 U.S.C. \xc2\xa7 403(a). In particular, the DCIA will:\n(1) collect intelligence through human sources and by other appropriate means, [but] shall have no police, subpoena, or law enforcement powers or internal security functions;\n(2) correlate and evaluate intelligence related to the national security\nand provide appropriate dissemination of such intelligence;\n(3) provide overall direction for and coordination of the collection of\nnational intelligence outside the United States through human\nsources by elements of the intelligence community authorized to undertake such collection and, in coordination with other departments,\nagencies, or elements of the United States Government which are authorized to undertake such collection, ensure that the most effective\n\n29\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nuse is made of resources and that appropriate account is taken of the\nrisks to the United States and those involved in such collection; and\n(4) perform such other functions and duties related to intelligence affecting the national security as the President or the [DNI] may direct.\nIRTPA \xc2\xa7 1011(a) (new NSA \xc2\xa7 104A(d)), 118 Stat. at 3660\xe2\x80\x9361. All of these duties\nare by statute currently performed by the DCI. See NSA \xc2\xa7 103(d), 50 U.S.C.\n\xc2\xa7 403-3(d). Moreover, the DCIA, like the DCI, will have authority to terminate\nCIA employees in the interest of national security, IRTPA \xc2\xa7 1011(a) (new NSA\n\xc2\xa7 104A(e)), 118 Stat. at 3661; NSA \xc2\xa7 104(h), 50 U.S.C. \xc2\xa7 403-4(h) (2000 & Supp.\nIII 2004); and to coordinate relationships with the intelligence services of foreign\ngovernments, IRTPA \xc2\xa7 1011(a) (new NSA \xc2\xa7 104A(f)), 118 Stat. at 3661; NSA\n\xc2\xa7 104(e), 50 U.S.C. \xc2\xa7 403-4(e).\nLikewise, section 1077\xe2\x80\x94a \xe2\x80\x9cconforming amendment[]\xe2\x80\x9d\xe2\x80\x94amends the Central\nIntelligence Agency Act of 1949 (50 U.S.C. \xc2\xa7\xc2\xa7 403a\xe2\x80\x93403s) to provide that the\nsame authorities granted to the DCI under that Act will belong to the DCIA,\nincluding authorities related to procurement, travel and allowances, personnel,\nproperty, admission of essential aliens, appropriations, and acceptance of gifts,\namong others. 118 Stat. at 3695. Indeed, section 1081(b) of the Intelligence\nReform Act provides:\nAny reference to the Director of Central Intelligence or the Director\nof the Central Intelligence Agency in the Director\xe2\x80\x99s capacity as the\nhead of the Central Intelligence Agency in any law, regulation, document, paper, or other record of the United States shall be deemed to\nbe a reference to the Director of the Central Intelligence Agency.\n118 Stat. at 3696.\nThe DCIA, to be sure, will not serve as head of the intelligence community or\nas principal adviser to the President for intelligence matters; those roles\xe2\x80\x94greatly\nenhanced under the Intelligence Reform Act\xe2\x80\x94will be assigned to the newly\nestablished DNI. See id. \xc2\xa7 1011 (new NSA \xc2\xa7\xc2\xa7 102 et seq.). Yet, every duty and\nresponsibility to be discharged by the DCIA under the Intelligence Reform Act is\npresently discharged by the DCI in his role as head of the CIA, and this broad\nsubstantive continuity clearly indicates that the office of DCIA is the same office\nas that of the DCI, albeit with reduced duties and a new title.\nNeither a new title, nor reduced duties, nor a requirement that the DCIA be\nappointed \xe2\x80\x9cby the President by and with the advice and consent of the Senate\xe2\x80\x9d\nimplies an intent to create a new office or otherwise require a new appointment.\nAn office is more than a title; it is essentially a collection of duties and authorities.\nSee United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868); The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C.\n124, 140\xe2\x80\x9342 (1996) (\xe2\x80\x9cSeparation of Powers\xe2\x80\x9d); Edward Corwin, The President:\n\n30\n\n\x0cStatus of the Director of Central Intelligence Under the Intelligence Reform Act\n\nOffice and Powers, 1789\xe2\x80\x931984, at 85 (5th ed. 1984). Even where the title changes,\nthe office may continue if the duties and authorities continue in a recognizable\nform, particularly where the duties and authorities are simply reduced. And if the\noffice was Senate-confirmed under its former title, Congress by simply continuing\nthat requirement when changing the title and reducing duties does not indicate an\nintent to create a new office and thereby require a new appointment; rather, it\nmerely retains a characteristic of the prior position.\nIndeed, Congress has frequently changed an office\xe2\x80\x99s title, reduced its duties or\nauthorities, and retained a requirement of Senate confirmation under analogous\ncircumstances\xe2\x80\x94without any suggestion that it thereby created a new office or\notherwise purported to require a new appointment. For example, in the National\nSecurity Act of 1947, Congress renamed the Secretary of War the Secretary of the\nArmy; reduced his powers by transferring his control over the Air Force to a new\nSecretary of the Air Force; and retained the requirement of Senate confirmation.\nYet that act did not suggest that the Secretary of War would have to be reappointed, and the incumbent Secretary of War continued in office as Secretary of the\nArmy without his name being resubmitted to the Senate. See NSA \xc2\xa7\xc2\xa7 205(a),\n207(f), 61 Stat. 495, 501, 503; 93 Cong. Rec. 9393 (July 19, 1947) (Kenneth\nRoyall confirmed as Secretary of War; no subsequent submission for him to serve\nas the Secretary of Army after the NSA took effect). Likewise, in 1979, Congress\nrenamed the Secretary of Health, Education, and Welfare the Secretary of Health\nand Human Services; reduced her powers by transferring her education duties to a\nnew Secretary of Education; and retained the requirement of Senate confirmation.\nAgain, the statute did not suggest any need for a new appointment, and the\nincumbent Secretary of Health, Education, and Welfare continued in office as\nSecretary of Health and Human Services without her name being resubmitted to\nthe Senate. See Department of Education Organization Act, Pub. L. No. 96-88,\n\xc2\xa7\xc2\xa7 301, 509, 93 Stat. 668, 677\xe2\x80\x9379, 695 (1979); 125 Cong. Rec. 21137, 21143 (July\n27, 1979) (Patricia Roberts Harris confirmed as Secretary of Health, Education,\nand Welfare; no subsequent submission for her to serve as Secretary of Health and\nHuman Services after Organization Act took effect). See also Crenshaw v. United\nStates, 134 U.S. 99, 101, 109 (1890) (holding that law providing that \xe2\x80\x9call the\nundergraduates at the Naval Academy shall hereafter be designated and called\n\xe2\x80\x98naval cadets\xe2\x80\x99\xe2\x80\x9d instead of \xe2\x80\x9c\xe2\x80\x98cadet midshipmen,\xe2\x80\x99\xe2\x80\x9d and modifying the scope of their\nduties by restricting the circumstances under which they would be commissioned\nupon graduation, did not create a new office or appoint its occupants).\nSimilarly, Congress in creating the Department of Defense reduced the powers\nof three formerly principal officers\xe2\x80\x94the Secretaries of the Army, Navy, and Air\nForce\xe2\x80\x94and put them under the control of the secretary of the newly created\nDepartment of Defense (while retaining their titles and requirement to be Senateconfirmed) without requiring reappointment. See National Security Act Amendments of 1949, Pub. L. No. 81-216, \xc2\xa7\xc2\xa7 3, 4, 10(a), 12(f), 63 Stat. 578, 579, 585.\nCongress has in other ways reduced duties without any suggestion that it was\n\n31\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\ncreating a new office. See, e.g., Act of April 30, 1798, ch. 35, \xc2\xa7 5, 1 Stat. 553, 554\n(reducing powers of the Secretary of War by transferring certain of them to the\nsecretary of the newly created Navy Department, without requiring reappointment\nof the War Secretary); cf. United States v. San Jacinto Tin Co., 125 U.S. 273, 284\n(1888) (assuming that the \xe2\x80\x9clegislative body which created the office\xe2\x80\x9d may place\n\xe2\x80\x9crestrictions . . . upon the exercise of . . . authority by\xe2\x80\x9d that officer, without it\nbecoming a new office). It also has changed titles without any suggestion that it\nwas creating a new office. See, e.g., Act of Sept. 15, 1789, ch. 14, \xc2\xa7 1, 1 Stat. 68,\n68 (redesignating Secretary for the Department of Foreign Affairs as Secretary of\nState, and somewhat increasing duties, without requiring reappointment).\nGiven that the DCIA position appears, based on the duties, transitional provisions, and historical examples discussed above, to be a continuation of the office\nof DCI, as head of the CIA, one would expect Congress to have clearly conveyed\nits purpose if it nevertheless meant to require the then-current DCI to be reappointed in order to serve as the DCIA. By way of comparison, when Congress\npassed legislation requiring Senate confirmation for the pre-existing positions of\nDirector and Deputy Director of the Office of Management and Budget (legislation that President Nixon vetoed), Congress expressly provided that \xe2\x80\x9cno individual\nshall hold either such position thirty days after [the enactment] date unless he has\nbeen so appointed.\xe2\x80\x9d S. 518, 93d Cong. (1973). Indeed, it was primarily this\nprovision (discussed further below) that led the President to veto the bill. See\nSenate Confirmation of OMB Director and Deputy Director: The President\xe2\x80\x99s\nMessage to the Senate Vetoing Bill Requiring Senate Confirmation of the Two\nPositions, 9 Weekly Comp. Pres. Doc. 681 (May 18, 1973) (\xe2\x80\x9cSenate Confirmation\nof OMB Director and Deputy Director\xe2\x80\x9d).\n2.\nThe Intelligence Authorization Act for Fiscal Year 2005, Pub. L. No. 108-487,\n118 Stat. 3939 (2004) (the \xe2\x80\x9cAuthorization Act\xe2\x80\x9d) does not change our conclusion.\nSection 803(b) of the Authorization Act states:\n(1) During the period beginning on the date of the enactment of this\nAct and ending on the date of the appointment of the Director of the\nCentral Intelligence Agency under section 104A of the National Security Act of 1947, as amended by section 1011(a) of the National\nSecurity Intelligence Reform Act of 2004, the Director of Central Intelligence may, acting as the head of the Central Intelligence Agency, discharge the functions and authorities provided in this Act, and\nthe amendments made by this Act, to the Director of the Central Intelligence Agency.\n(2) Upon the appointment of an individual as Director of the Central\nIntelligence Agency under section 104A of the National Security Act\n\n32\n\n\x0cStatus of the Director of Central Intelligence Under the Intelligence Reform Act\n\nof 1947, as so amended, any reference in this Act, or in the classified\nannex to accompany this Act, to the Director of Central Intelligence\nas head of the Central Intelligence Agency shall be deemed to be a\nreference to the Director of the Central Intelligence Agency.\nId. \xc2\xa7 803(b), 118 Stat. at 3962\xe2\x80\x9363. Section 803(a) provides the same authority for\nthe DCI with respect to the functions and authorities of the DNI under the\nAuthorization Act. The conferees\xe2\x80\x99 joint explanatory statement on section 803\nindicates, consistently with the terms of section 803 itself, that it was meant to\n\xe2\x80\x9cclarif[y] how certain authorities shall be exercised, and who shall exercise them,\nduring the transitional period between enactment of this Act, its effective date, the\nappointment of certain officers, and the enactment and effective date of the\n[Intelligence Reform Act].\xe2\x80\x9d H.R. Conf. Rep. No. 108-798, at 34 (2004). Presumably this language was necessary because, as section 803(b)(1) suggests, the\nAuthorization Act takes effect upon enactment and refers throughout to the DNI\nand DCIA, yet the Intelligence Reform Act, which creates those titles, does not\ntake effect until sometime later. See id.\nIn view of section 803\xe2\x80\x99s language and purpose, we do not believe it fairly can\nbe read together with the Intelligence Reform Act to require a new appointment\nsimply because it provides (in section 803(b)(1)) who may exercise certain\nauthority under the Authorization Act in the transitional period until \xe2\x80\x9cthe appointment\xe2\x80\x9d of a DCIA and (in section 803(b)(2)) how \xe2\x80\x9cany\xe2\x80\x9d references to the DCI\nremaining in the Authorization Act should be read \xe2\x80\x9c[u]pon the appointment\xe2\x80\x9d of a\nDCIA. Section 803\xe2\x80\x99s operative terms relate to the Authorization Act, not the\nIntelligence Reform Act. It provides, in permissive terms, that the DCI \xe2\x80\x9cmay\xe2\x80\x9d\n\xe2\x80\x9cdischarge the functions and authorities provided in this Act\xe2\x80\x9d\xe2\x80\x94i.e., provided in\nthe Authorization Act\xe2\x80\x94during the transition period. We would not expect\nCongress to attempt to require a new appointment under a separate piece of\nlegislation in such an obscure manner, especially with respect to such an important\noffice.\nMoreover, section 803 is a \xe2\x80\x9csavings provision[].\xe2\x80\x9d Pub. L. No. 108-487, \xc2\xa7 803,\n118 Stat. at 3962 (title of section). Its purpose is to ensure that some officer (the\nDCI) is able to exercise the authorities granted under the Authorization Act to the\nDNI and DCIA, not to restrict or otherwise address the President\xe2\x80\x99s authority to\nretain the current officer charged with running the CIA. In view of this purpose,\nthe reference in section 803(b)(1) to \xe2\x80\x9cthe date of the appointment of the [DCIA]\xe2\x80\x9d\nis best read to mean \xe2\x80\x9cthe date on which all actions necessary to create and fill the\noffice of DCIA have been taken.\xe2\x80\x9d If the current DCI remains in his current office,\nthat date is the effective date of the Intelligence Reform Act. By contrast, because\nthe DNI, unlike the DCIA, is a new office, the appointment requires both the\nIntelligence Reform Act to take effect and the President to nominate, and the\nSenate to confirm, a new officer as the DNI. The broad language of section 803(b),\nin referring to appointment, was necessary to take account of the possibility that\n\n33\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nthe then-current DCI would not remain in office until the Intelligence Reform Act\nwent into effect; it was not intended to require a new appointment in the event he\ndid.\nB.\nOur conclusion is reinforced by the fact that a contrary conclusion would raise\nserious constitutional doubts. As the Supreme Court held in Myers v. United\nStates, 272 U.S. 52 (1926), the Constitution vests in the President, to the exclusion\nof Congress, the authority to remove an officer of the United States before the\nexpiration of his term. There are two recognized exceptions: Congress may\nremove an officer through impeachment, and Congress may abolish an office\naltogether, thereby effectively removing the officer. See Morrison v. Olson, 487\nU.S. 654, 686 (1988) (\xe2\x80\x9cthe essence of the decision in Myers was the judgment that\nthe Constitution prevents Congress from \xe2\x80\x98draw[ing] to itself . . . the power to\nremove\xe2\x80\x99\xe2\x80\x9d); Bowsher v. Synar, 478 U.S. 714 (1986) (holding that officers of the\nUnited States may not be removed by Congress other than through impeachment).\nFurthermore, Congress may not accomplish a removal through \xe2\x80\x9cripper\xe2\x80\x9d legislation, whereby Congress ostensibly abolishes an office while simultaneously\nrecreating it and requiring a new appointment. See Constitutionality of Proposed\nLegislation Requiring Renomination and Reconfirmation of Executive Branch\nOfficers Upon the Expiration of a Presidential Term, 11 Op. O.L.C. 25, 26 (1987).\nFor example, in vetoing the bill, mentioned above, requiring the incumbent\nDirector and Deputy Director of the Office of Management and Budget to be\nreappointed subject to Senate confirmation, President Nixon explained:\nI do not dispute Congressional authority to abolish an office or to\nspecify appropriate standards by which the officers may serve. When\nan office is abolished, the tenure of the incumbent in that office ends.\nBut the power of the Congress to terminate an office cannot be used\nas a back-door method of circumventing the President\xe2\x80\x99s power to\nremove. With its abolition and immediate re-creation of two offices,\n[this bill] is a device\xe2\x80\x94in effect and perhaps in intent\xe2\x80\x94to accomplish\nCongressional removal of the incumbents who lawfully hold those\noffices.\nSenate Confirmation of OMB Director and Deputy Director, 9 Weekly Comp.\nPres. Doc. at 681. That veto was sustained. 119 Cong. Rec. 16503, 16764 (1973).\nThe following year, Congress passed legislation requiring Senate confirmation of\nany future Director or Deputy Director of the Office of Management and Budget,\nbut not the incumbent officers. That bill was approved. Act of Mar. 2, 1974, Pub.\nL. No. 93-250, 88 Stat. 11.\nWhile the DCIA under the Intelligence Reform Act is not the exact recreation\nof the DCI\xe2\x80\x94as its powers are reduced\xe2\x80\x94it is, as explained above, the clear\n\n34\n\n\x0cStatus of the Director of Central Intelligence Under the Intelligence Reform Act\n\ncontinuation of that office in its capacity as head of the CIA. Thus, the same\nconstitutional defect would obtain here were the statute interpreted to require a\nnew appointment. The Constitution does not permit Congress to remove an officer\nwhile continuing his office, even with somewhat reduced duties. 1\nIn view of these serious constitutional doubts, even if the statutory analysis\nwere substantially less clear, we would avoid interpreting the Intelligence Reform\nAct to require a new appointment for the then-current DCI. \xe2\x80\x9c[W]here an otherwise\nacceptable construction of a statute would raise serious constitutional problems,\xe2\x80\x9d it\nis appropriate to \xe2\x80\x9cconstrue the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.\xe2\x80\x9d See Edward J. DeBartolo\nCorp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575\n(1988).\nC.\nWe have also considered, and rejected, the possibility that the DCI position\ninstead continues as the DNI. While the DNI position resembles the DCI in\nsignificant respects (like the DCI, the DNI will serve as head of the intelligence\ncommunity and as the principal adviser to the President on intelligence matters\nrelated to national security), the responsibilities and authority of the DNI in that\nrole are considerably greater than the DCI\xe2\x80\x99s. Indeed, the desire to create a more\nrobust head of the intelligence community was a driving force behind the legislation. See H.R. Conf. Rep. No. 108-796, at 241 (2004) (\xe2\x80\x9cThis legislation in part\nimplements the recommendations of the . . . \xe2\x80\x989/11 Commission\xe2\x80\x99 . . . . includ[ing]\nreorganization of the U.S. Intelligence Community by creating an empowered\nDirector of National Intelligence\xe2\x80\x9d). By contrast, as noted above, all of the DCIA\xe2\x80\x99s\nresponsibilities and authority as head of the CIA are currently exercised by the\nDCI.\nCongress provided that the current DCI may not serve as both the DNI and the\nDCIA: The \xe2\x80\x9cindividual serving in the position of Director of National Intelligence,\xe2\x80\x9d the Intelligence Reform Act states, \xe2\x80\x9cshall not, while so serving, also serve\nas the Director of the Central Intelligence Agency or as the head of any other\nelement of the intelligence community.\xe2\x80\x9d IRTPA \xc2\xa7 1011(a) (new NSA \xc2\xa7 102(c)),\n118 Stat. at 3644. Given that Congress clearly intended to prohibit the current DCI\nfrom serving as both the DNI and the DCIA, that the functions of the DCIA are\nnearly identical to the current functions of the DCI as head of the CIA, and that the\nfunctions of the DNI are substantially different from the current functions of the\nDCI as head of the intelligence community, the statute most naturally suggests that\n1\nAs discussed below, there may be cases where the addition of duties to an office will result in the\nestablishment of a new office requiring a new appointment. We do not believe that the mere reduction\nof duties can ever result in a new office requiring a new appointment. We need not definitively resolve\nthis issue, however. It is clear that the removal of certain duties from the position of DCI here does not\nrender the position of DCIA a new office requiring a new appointment for constitutional purposes.\n\n35\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nthe office of DCI is continued in the office of DCIA, albeit with a new title and\nreduced responsibilities, and not in the office of DNI.\nWe need not\xe2\x80\x94and do not\xe2\x80\x94decide whether the result would have been different\nif, instead of establishing two positions (the DCIA and the DNI), the Intelligence\nReform Act had simply assigned the authorities of the new DNI to the existing\nDCI. We decide only that where, as here, the Intelligence Reform Act establishes\ntwo positions, one of which (the DCIA) exercises only powers currently exercised\nby the pre-existing office and the other of which (the DNI) exercises considerable\nadditional powers, it is the former that is the continuation of the pre-existing\noffice. 2\nAccordingly, we conclude that when the Intelligence Reform Act takes effect\nthe then-current DCI would not require a new appointment to serve as DCIA.\nC. KEVIN MARSHALL\nActing Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n2\nConstitutional concerns are relevant to this conclusion as well\xe2\x80\x94here, concerns related to the\nAppointments Clause. U.S. Const. art. II, \xc2\xa7 2. It is well established that \xe2\x80\x9ca statute creating a new office\nand conferring it and its duties on the incumbent of an existing office would be unconstitutional under\nthe Appointments Clause.\xe2\x80\x9d Separation of Powers, 20 Op. O.L.C. at 157. As a corollary, Congress may\nnot \xe2\x80\x9calter the duties and powers of existing offices . . . to achieve substantially the same result.\xe2\x80\x9d Id.; see\nShoemaker v. United States, 147 U.S. 282, 300 (1893) (\xe2\x80\x9c[W]hile Congress may create an office, it\ncannot appoint the officer.\xe2\x80\x9d); Weiss v. United States, 510 U.S. 163, 174 (1994) (Congress may not\n\xe2\x80\x9ccircumvent[] the Appointments Clause by unilaterally appointing an incumbent to a new and distinct\noffice\xe2\x80\x9d). But where Congress has simply \xe2\x80\x9cincrease[d] the power and duties of\xe2\x80\x9d positions that continue\nto exist, and the new duties are \xe2\x80\x9cgermane to the offices already held by\xe2\x80\x9d the incumbents, the Court has\nfound no infirmity. Shoemaker, 147 U.S. at 301; see also id. at 289 (Congress may \xe2\x80\x9centrust the\nperformance of particular duties to officials already charged with duties of the same general description\xe2\x80\x9d) (describing holding of lower court); Weiss, 510 U.S. at 174\xe2\x80\x9376; id. at 195\xe2\x80\x9396 (Scalia, J.,\nconcurring in part and concurring in judgment). This Office has concurred in that view. See Separation\nof Powers, 20 Op. O.L.C. at 157\xe2\x80\x9359. In this case, although the \xe2\x80\x9cadditional duties\xe2\x80\x9d of the DNI appear to\nbe \xe2\x80\x9cgermane\xe2\x80\x9d to those of the DCI, see Shoemaker, 147 U.S. at 301, the additions are considerable.\nThere is at least a question whether Congress could confer such additions on the officer who is\ncurrently DCI. Cf. Separation of Powers, 20 Op. O.L.C. at 158 (in discussing germaneness test,\nconsidering whether officers\xe2\x80\x99 functions with the additional duties \xe2\x80\x9ccould be said\xe2\x80\x9d to have been \xe2\x80\x9c\xe2\x80\x98within\nthe contemplation of those who were in the first place responsible for their appointment and confirmation\xe2\x80\x99\xe2\x80\x9d) (quoting Legislation Authorizing the Transfer of Federal Judges From One District to Another,\n4B Op. O.L.C. 538, 541 (1980)); Shoemaker, 147 U.S. at 301 (finding new duties neither \xe2\x80\x9cdissimilar\nto\xe2\x80\x9d nor \xe2\x80\x9coutside the sphere of\xe2\x80\x9d prior duties); Olympic Fed. Sav. & Loan Ass\xe2\x80\x99n v. Dir., Office of Thrift\nSupervision, 732 F. Supp. 1183, 1193 (D. D.C. 1990) (finding violation where Congress largely\ncontinued powers of three-person board but consolidated them in single, designated, pre-existing\nofficer). By contrast, the reduction or limitation of duties does not create the risk of a congressional\nappointment. See Separation of Powers, 20 Op. O.L.C. at 157 n.92. Thus, by resolving the statutory\nquestion as we do, we avoid the need to address a possible constitutional problem.\n\n36\n\n\x0c'


b'October 10, 1978\n\n78-57\n\nMEMORANDUM OPINION FOR THE\nDIRECTOR, BUREAU OF PRISONS\nBureau of Prisons\xe2\x80\x94 Involuntary Transfers of\nPrisoners to Segregation\xe2\x80\x94 Due Process Safeguards in\nAdministrative and Disciplinary Segregation\n\nThis responds to your memorandum requesting clarification and reconsideration\nof our May 10 and May 16 memoranda to the Assistant Attorney General of\nthe Office of Legislative Affairs. Those memoranda expressed our views as to\nthe due process safeguards required with respect to involuntary transfers of\nprisoners from the general prison population to segregated status.\n(1) You state that you understand that our memoranda deal only with\ntransfers from the general prison population to segregation rather than place\xc2\xad\nment in segregation in all situations. Your understanding is correct. We\nexpressly stated that our consideration was limited to transfers from the general\nprison population to segregation. Although we do not consider situations in\nwhich inmates are placed in segregation awaiting classification or transfer, we\nnote that other considerations may call for a procedure different from that\nrequired in transfers to segregation from the general prison population.\n(2) You also ask whether the Bureau of Prisons\xe2\x80\x99 procedure regarding\nadministrative detention pending either disciplinary proceedings or investiga\xc2\xad\ntion is constitutionally acceptable. You state that these inmates are given full\nhearings pursuant to Wolff v. McDonnell, 418 U.S. 539 (1974), within 2 to\n4 days following imposition of segregation, if they are to be kept in\nsegregation beyond this period. In this context you ask whether we believe an\nindependent hearing on the reclassification issue is required. Two hearings are\nnot required in such situations. Your use of administrative detention in\ndisciplinary cases is actually a part of the disciplinary proceeding. Where due\nprocess safeguards attach to the disciplinary proceeding no purpose would be\nserved by conducting two independent hearings on the same basic facts. Our\nopinion is that administrative segregation cannot properly serve as a substitute\nfor disciplinary segregation so as to avoid the requirements of Wolff. 1 Thus, as\nlong as the pending hearing for the segregated inmate is not unreasonably\n\n\'Y ou state that you agree that it would be wrong to use adm inistrative detention to circum vent\n\nWolff\'s due process requirem ents in disciplinary proceedings.\n\n233\n\n\x0cdelayed, the hearing on the charged violation would accord the inmate any\nprocess to which he is due.2\n(3)\nFinally, you express concern over our equating involuntary administra\xc2\xad\ntive segregation3 with disciplinary segregation. You point out that inmates\nsubjected to administrative segregation are extended the same benefits as\ninmates in the general prison population, to the extent that such segregated\nstatus allows. You state that administrative detainees are permitted \xe2\x80\x9c reading\nmaterials, personal property, visits, correspondence, commissary-purchase\nprivileges,\xe2\x80\x9d and that many work in the unit out of their cells.4 Further, you\nindicate that such segregated status is not a negative factor in parole or later\nprogramming decisions. And finally, you stated that \xe2\x80\x9c [i]n no case are these\npeople considered undergoing sanction.\xe2\x80\x9d 5\nIn cases where involuntary administrative detention is ordered \xe2\x80\x9c for the\ninmate\xe2\x80\x99s own protection,\xe2\x80\x9d we understand your position to be that no due\nprocess hearing is required. The view you urge would accord a hearing prior to\nthe imposition of segregation to one who, no matter how egregiously, violated\nprison rules, but would not extend the opportunity for a hearing to one who had\nviolated no rule. Such a result is inconsistent with the appearance of\neven-handed administration of prison rules and notions of fair play.6 The focus\nshould not be on the punitive or nonpunitive intent of prison officials, but on\nthe deprivation itself. In Powell v. Ward, 392 F. Supp. 628 (S.D.N.Y. 1975),\na f f d 542 F. (2d) 101 (2d Cir. 1976), the court noted that:\nIn New York, there are two basic types of disciplinary procedures,\nSuperintendent\xe2\x80\x99s Proceedings and Adjustment Committee Proceed\xc2\xad\nings. 7 N.Y.C.R.R. \xc2\xa7\xc2\xa7 252, 253. The Adjustment Committee P ro\xc2\xad\nceeding is \xe2\x80\x98 \xe2\x80\x98said to be marked by flexibility and nonpunitive intent in\nattempting to effectuate changes in inmate attitude,\xe2\x80\x9d whereas the\n\n2W e are assum ing that such prehearing detention would be im posed consistent with the Bureau of\nPrisons\xe2\x80\x99 Policy Statem ent No. 7 4 0 0 .5D (July 7, 1975), i.e., only w here the continued presence of\nthe inm ate in the general population poses a serious threat to life, property, persons, or the security\no f the institution.\n3W e use this term as synonym ous with \xe2\x80\x9c adm inistrative detention.\xe2\x80\x9d\n\'\xe2\x80\x98T hese sam e privileges are not available to those in a disciplinary status.\n5It may prove helpful at this point to identify the types o f adm inistrative segregation that we are\nnot discussing. First, w e are not concerned with adm inistrative segregation that is an adjunct o f a\ndisciplinary proceeding involving a Wolff-type hearing w ithin a reasonable interval after the\nim position o f adm inistrative segregation. N either are we discussing segregation im posed pending\nclassification, transfer, or w here an inm ate is in a holdover status during transfer. A nd, inmate\nrequests to be placed in adm inistrative segregation are not relevant to our discussion because they\ndo not involve involuntary confinem ent. T hus, there is only one class o f cases in which our\ndiscussion o f the distinction betw een adm inistrative and disciplinary segregation applies. That is,\nwhere the prison staff, against the in m ate\'s protest, determ ines \xe2\x80\x9c that adm ission to or continuation\no f A dm inistrative D etention is necessary for the inm ate\xe2\x80\x99s own protection.\xe2\x80\x9d\n6It appears that in both cases there is a factual predicate for im position o f segregation. For\nadm inistrative segregation to be im posed it m ust be established that the inm ate\xe2\x80\x99s presence in the\ngeneral population poses a danger to him self, others, institutional security, etc. Because o f this\nthere should be m inim um procedural safeguards to protect against an arbitrary determ ination o f this\nfactual predicate. Cf., W olff v. McDonnell, supra, at 571, n. 19, and Wright v. Enomoto, infra;\ncontra. Bills v. Henderson, 446 F. Supp. 967, 973 (E .D . T enn. 1978).\n\n234\n\n\x0cSuperintendent\xe2\x80\x99s Proceeding is \xe2\x80\x98solely disciplinary in nature.\xe2\x80\x9d\n[Citation omitted.] Despite different goals and procedures, both types\nof proceedings may result in solitary confinement. [Emphasis added.]\nThe court held that because both the punitive and the nonpunitive proceedings\nmay result in solitary confinement, \xe2\x80\x9c inmates subject to either type of\nproceeding must be accorded the procedural safeguards set forth in Wolff v.\nMcDonnell [418 U.S. 539 (1974)].\xe2\x80\x9d See also, McKinnon v. Patterson, 568 F.\n(2d) 930, 938 (2d Cir. 1977); Crooks v. Warne, 516 F. (2d) 837, 839 (2d Cir.\n1975).\nWhile the above-cited cases do not excuse due process requirements for\nadministrative segregation, it is recognized that the hearings required in\nadministrative proceedings need not be identical to disciplinary proceeding\nhearings; the institutional concerns in the two proceedings are not necessarily\nthe same. Accordingly, the court in Crooks v. Warne, 516 F. (2d) 837, supra,\nheld that:\n. . . there must be a mutual accommodation between institutional\nneeds and generally applicable constitutional requirements, and to the\nnature of a hearing before an adjustment committee which has the\nduty of determining whether the particular prisoner may safely be\nreturned to the general population, as distinguished from finding\nwhether the inmate has violated a particular rule. [Id., at 839]\nThus, the Court of Appeals for the Second Circuit reversed the district\ncourt\xe2\x80\x99s order that \xe2\x80\x9c [n]o member of any Adjustment Committee meeting to which\nPlaintiff is a party shall discuss the pending matter with other administrative or\nsuperior officers in advance of the hearing,\xe2\x80\x9d id., reasoning that the nature of\nsuch an administrative hearing required previous consultation between prison\nofficials. However, the court affirmed the lower court\xe2\x80\x99s ruling that the inmate\nmust be notified prior to the hearing as to the basis for the proposed transfer to\nsegregation. The prison procedure at issue in Crooks afforded the inmate an\nopportunity to respond at the hearing. The basic question at issue was whether\nprior notice to the prisoner was required. While the basic due process\nrequirements were held to apply to administrative detention (see also,\nMcKinnon v. Patterson, 568 F. (2d) 930, 938 (2d Cir. 1977)), the court ruled\nthat the requirement of an impartial administrative officer to preside over the\nhearing was not identical in administrative and disciplinary hearings.\nApart from the punitive versus nonpunitive intent distinction, administrative\nand disciplinary segregation are also distinguished, based on the facts that\ninmates in administrative segregation retain more privileges than those in\ndisciplinary segregation and are not stigmatized to the same degree as\ndisciplinary detainees. Thus, the issue is whether these facts remove adminis\xc2\xad\ntrative segregation from the kind of segregated status requiring due process\nsafeguards. In McKinnon v. Patterson, supra, the Second Circuit viewed\nsituations involving prisoners confined to their cells and deprived of almost all\ncontact with the rest of the prison population and participation in the normal\n\n235\n\n\x0croutine of the institution, as requiring the due process guarantees of Wolff. The\ncourt noted that the deprivation was less severe than solitary confinement or\nconfinement in a special housing unit. The confinement at issue in McKinnon\ncould not exceed 2 weeks. Further, prisoners in such confined status retained\naccess to their personal belongings. Thus, they enjoyed reading material and\nthe use of any other personal property generally permitted in prison cells.\nThe Court of Appeals in McKinnon compared the confinement there with\nthat in Walker v. Mancusi, 467 F. (2d) 51 (2d Cir. 1972), affirming 338 F.\nSupp. 311 (W.D. N.Y. 1971). There the district court found that a due process\nhearing was required in the segregation process even though the prisoners\nretained several benefits, including receipt of the minimum wages paid to\ninmates unassigned to jobs through no fault of their own, commissary\nprivileges, receipt of packages from outside the prison, and recreation during\ntheir first week of punitive confinement.7 McKinnon v. Patterson, supra, 938,\nn. 7. In McKinnon no mention was made of the segregation as it affected\nparole, eligiblity for future rehabilitative programs, etc. The court focused on\nthe restrictive confinement as the key factor in deciding whether an inmate\xe2\x80\x99s\ncustody status amounted to solitary confinement. Most of the cases you have\ncited do not undermine McKinnon. They merely stand for the proposition that\ndue process is not triggered in decisions affecting furloughs, inmate access to\ninstitutional programs, and other like programs conferring \xe2\x80\x9c privileges.\xe2\x80\x9d 8\nHowever, Walker v. Hughes, 558 F. (2d) 1247 (6th Cir. 1977), held that\nshort of cruel and unusual punishment, due process is not triggered by any\ndeprivation of an inmate\xe2\x80\x99s freedom unless a \xe2\x80\x9c liberty interest\xe2\x80\x9d is conferred by\nstatute or prison rules or regulations. But see the dissenting opinion of Judge\nEdwards, who opined that a Wolff hearing \xe2\x80\x9c must be provided when a prisoner\nis placed in segregation.\xe2\x80\x9d Id ., at 126. Following the Walker v. Hughes\nholding, a court in the Sixth Circuit also found no liberty interest, absent statute\nor rule, in remaining in the general prison population. Bills v. Henderson, 446\nF. Supp. 967 (E.D. Tenn. 1978). Under the rationale of these cases prison\nofficials could impose disciplinary or administrative segregation for any reason\nor for no reason unless the exercise of their discretion were circumscribed by\nstatute or rule.\nThis conclusion, however, conflicts with Wright v. Enomoto, No. C-73-1422\nSAW (N.D. Cal. 1976) (3-judge court), a ffd , 434 U.S. 1052, 98 S. Ct. 1223\n\n\xe2\x80\x99W hile it is true that Mancusi w as pre-Wolff, McKinnon endorses the approach taken in that case.\n568 F. (2d) at 935-36.\nsMoody v. Daggett, 429 U .S. 78 (1976) (classification and institutional program s affected. Court\nheld that no due process hearing required in such circum stances); Solomon v. Benson, 563 F. (2d)\n339 (7th Cir. 1977) (classification o f prisoner as special offender does not require due process\nprotections); Smith v. Saxbe, 562 F. (2d) 729 (D .C . C ir. 1977) (furlough term ination and transfer\nto another institution requires no due process hearing).\n\n236\n\n\x0c(1978),9 and Wolff v. McDonnell, 418 U.S. 539 (1974). In Enomoto, the\n3-judge court\xe2\x80\x99s unpublished order and opinion condemned the arbitrary\nimposition of segregation, whether labeled disciplinary or administrative.10 The\ncourt in Enomoto viewed administrative segregation as an even greater\ndeprivation than disciplinary segregation. And although the court did not reach\nthe question \xe2\x80\x9c whether even more procedural protections must be required\xe2\x80\x9d for\nadministrative segregation, it noted:\nThe deprivation suffered by a prisoner confined for administrative\nreasons is greater than that suffered by one confined on a disciplinary\ncharge. The latter is for a definite term, generally for a maximum of\nten days. In contrast, administrative segregation is for an indefinite\nperiod\xe2\x80\x94the prisoner may be confined for months, even years, \xe2\x80\xa2\nwithout hope of release. The charges at a disciplinary hearing are\ndefinite and narrow. The inmate is accused in writing of violating a\nprison rule. In contrast . . . the charges at a hearing resulting in\nadministrative confinement tend to be vague, and are frequently\nbased on mere rumor, suspicion, or conjecture. In this connection we\ndeem it appropriate to note that the circumstances and issues involved\nin decisions leading to administrative segregation may well, upon a\nproper showing, demonstrate the necessity for additional procedures\nto make hearings adequate. (Footnote omitted.) [See generally\nTobriner & Cohen, How Much Process is \xe2\x80\x9cDue\xe2\x80\x9d ? Parolees and\nPrisoners, 25 Hastings L.J. 801 (1974); Gagnon v. Scarpelli, 411\nU.S. 778, 790(1973); N. Morris, The Future of Imprisonment 30-34,\n67-73 (1974). Enomoto, supra, slip opinion at 17-18.]\nAlthough Enomoto is not without contrary authority (see. Walker v. Hughes,\nsupra), it is the only case on this subject we have found that has been reviewed\nby the Supreme Court after its decisions in Meachum v. Fano, 427 U.S. 215\n9In a May 23, 1978, memorandum from you to the Associate Deputy Attorney General, you\nstated that you \xe2\x80\x9c . . . have been advised that the rules of the Ninth Circuit [Court of Appeals] bar the\ncitation of an unreported opinion within that circuit." Based on this advice, you question our\nreliance on an "unreported and uncitable District Court opinion.\xe2\x80\x9d The advice you were given\nregarding the rules is erroneous. The relevant rule is Rule 21 (as amended through February 7,\n1977). This rule establishes a rather detailed policy as to how the court disposes of matters before\nit. We note that \xe2\x80\x9c publication," under Rule 21, carries a different meaning than your memorandum\nimplies by use of the term \xe2\x80\x9c unreported.\xe2\x80\x9d It suffices here, however, to point out that the rule\napplies only to cases decided by the Ninth Circuit Court of Appeals. Subsection (c) of Rule 21\nstates that:\nA disposition which is not for publication shall not be regarded as precedent and shall not\nbe cited to or by this court or any district court of the Ninth Circuit, either in briefs, oral\nargument, opinions, memorandums, or orders, except when relevant under the doctrines\nof law of the case, res judicata, or collateral estoppel.\nThis provision expressly applies only to dispositions by the Ninth Circuit Court of Appeals. It does\nnot purport to impose rules concerning the precedential value of decisions by district courts within\nthat circuit. See subsection (a) of that rule.\nloYou have provided the example of procedures required in classifying "central Monitoring\ncases (those who must be carefully followed, to make sure they are not confined in the same place\nas certain others, etc.).\xe2\x80\x9d It is our understanding that these cases are not equivalent to segregation.\nAccordingly, we express no opinion on the adequacy of the procedures afforded in those areas.\n\n237\n\n\x0c(1976), and Montanye v. Haymes, A ll U.S. 236 (1976). There is always a\nquestion about the precedential weight that should be accorded Supreme Court\nsummary affirmances of three-judge court decisions. To be sure, a reasonable\nargument can be made that Enomoto is wrongly decided. On the other hand, the\ndue process analysis embraced by the Enomoto court is, we think, compatible\nwith the Supreme Court\xe2\x80\x99s other recent due process decisions, and the\narguments against extending the notice and hearing protections to the category\nof involuntary confinement addressed here are less persuasive. For these\nreasons we adhere to our previously stated view that involuntary placement in\nadministrative segregation, even absent statute or rule," triggers due process\nguarantees.12\nJo h n M . H a r m o n\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n"A s we stated in our May 10, 1978 memorandum to the Office of Legislative Affairs, we believe\nthat the Bureau of Prisons\xe2\x80\x99 Policy Statement No. 7400.5D and 18 U .S.C. \xc2\xa7 4081 create a protected\ninterest in remaining in the general prison population whether or not such interest derives from the\nConstitution.\nl2However, as we stated above, we only comment on those transfers to segregation from the\ngeneral population that are not part of a proceeding for which a Wolff-type hearing is afforded\nwithin a reasonable period after imposition of segregation.\n\n238\n\n\x0c'


b'Effect of 31 U.S.C. \xc2\xa7 484 on the\nSettlement Authority of the Attorney General\nA p ro p o sal w h e re b y sum s receiv ed in settlem en t o f a suit b ro u g h t by th e U n ited S tates\nan d th e C o m m o n w e a lth o f V irg in ia for e n v iro n m e n ta l d am ag e resu ltin g from an oil\nspill w o u ld be d o n a te d to a w a te rfo w l p re se rv a tio n o rg an izatio n , is b a rre d by 31 U .S.C .\n\xc2\xa7 484, w h ic h req u ires th at all m o n ey receiv ed for th e use o f th e U n ited S tates be\nd ep o site d in th e T re a su ry . T h is req u irem en t fu rth e rs the co n stitu tio n al goal o f re se rv \xc2\xad\ning to C o n g ress responsibility fo r d ete rm in in g w h e th e r an d h o w p ublic funds a re to be\nspent.\nW h ile th e C o m p tro lle r G e n e ra l has found \xc2\xa7 484 in ap p licab le in situ atio n s w h e re the funds\nin v o lv e d are re c e iv e d in tru st for a p a rtic u la r p u rp o se, this th e o ry is usually insufficient\nto o v e rrid e th e m an d ate o f \xc2\xa7 484 w h e re th e tru st is c re a te d by n o n sta tu to ry ex ecu tiv e\nactio n .\nIn this case, w h e re th e U n ited S tates has not in c u rre d an y m o n e ta ry loss as a result o f the\noil spill, \xc2\xa7 484 w o u ld n ot be o ffen d e d by a se ttle m e n t th at a ttrib u te d th e e n tire sum\nreceiv ed to its co -plaintiff, w h ic h c o u ld th en d ire c t th e m o n ey to a ch arity .\n\nJune 13, 1980\nMEM ORANDUM OPINION FOR\nTH E ASSOCIATE ATTORNEY G EN ER A L\nThis responds to your request for our views concerning the Justice\nDepartment\xe2\x80\x99s authority to approve the proposed settlement in\nIn re Complaint o f Steuart Transportation Co., etc. (E.D. Va.-Civ. No.\n76-697-N). For the reasons discussed below, we conclude that the settle\xc2\xad\nment as proposed is barred by 31 U.S.C. \xc2\xa7 484 (1976). However, it would\nbe possible to modify the settlement in this case to achieve the same result\nwithout violating \xc2\xa7 484.\nIn our view, the issues surrounding your authority to compromise\nthis suit derive from more fundamental questions involving the extent\nof executive authority to bring nonstatutory suits on a public trust/\nparens patriae theory.1 However, we do not address the question of\nindependent executive authority to sue in this memorandum because we\nfeel that the court\xe2\x80\x99s opinion has effectively mooted the question for\npurposes of this suit.2 Instead, we will focus on the legal implications of\n1\nT h e governm ent should consider th e same questions o f authority w hen it fashions its initial claim\nfor relief as w hen it negotiates th e settlem ent decree. In this case the governm ent w ould address the\nsame issues regarding disposition o f m oney w h eth er it received a dam ages aw ard pursuant to a consent\ndecree o r a final judgem ent after trial.\n*\nA lthough the c o u rt\'s opinion in Steuart clearly finds au thority for the public trust /parens patriae\naction, it does not indicate w h e th er this authority resides in the federal o r state plaintifT (o r in both).\nSee 495 F. Supp. 38, 40 (E .D . Va. 1980).\n\n684\n\n\x0cthe proposed disposition of money damages obtained in this suit either\nthrough settlement or final judgment.\nI. Facts\nThe United States and the Commonwealth of Virginia have sued\nSteuart Transportation Company alleging that it caused an oil spill in\nthe Chesapeake Bay. Each sovereign sought: (1) damages for the death\nof migratory waterfowl, (2) statutory penalties, and (3) cleanup costs\n(including pre-judgment interest). One aspect of the proposed settle\xc2\xad\nment is that the federal and state government would share an entitle\xc2\xad\nment to damages for the death of the waterfowl.3 Under the terms of\nthe settlement, this money would be \xe2\x80\x9cdonated by Steuart\xe2\x80\x9d to a water\xc2\xad\nfowl preservation organization to be designated jointly by the State of\nVirginia and the U.S. Department of the Interior. The State of Virginia\nhas notified us that it is ready to approve the proposed settlement.\nII. Discussion\n\nThe Constitution commits to the legislative branch of government\ncontrol over public expenditures. U.S. Const. Art. I, \xc2\xa78, cl. 1; id.,\nArt. I, \xc2\xa7 9, cl. \'7. Congress has passed various statutes designed to\nensure that congressional prerogatives under this constitutional scheme\nare not diminished by executive action.4 Of particular significance is 31\nU.S.C. \xc2\xa7 484, which provides that:\nThe gross amount of all moneys received from what\xc2\xad\never source for the use of the United States, except as\notherwise provided in section 487 of this title, shall be\npaid by the officer or agent receiving the same into the\nTreasury, at as early a day as practicable, without any\nabatement or deduction on account of salary, fees, costs,\ncharges, expenses, or claim of any description whatever.\nThe sponsor of \xc2\xa7 484\xe2\x80\x99s predecessor statute indicated in House floor\ndebates that the original statute was intended to \xe2\x80\x9ccarry out both the\nspirit and letter of the Constitution.\xe2\x80\x9d Cong. Globe, 30th Cong., 1st Sess.\n466 (1848) (remarks of Rep. McKay). Representative Toombs, another\nsupporter of the original bill, explained its purpose and constitutional\nunderpinnings as follows:\nThis bill sought simply to put all the money into the\npublic treasury, and draw it from the public treasury by\nlaw, according to the requirements of the Constitution, so\n3\nT h e governm ent originally claimed dam ages for the w aterfow l on a parens patriae theory, but it\ndid not seek criminal penalties under the M igratory Bird T reaty A ct, 16 U.S.C. \xc2\xa7 707.\n* See.; e.g., 41 U.S.C. \xc2\xa7\xc2\xa7 11-14 concerning public contracts.\n\n685\n\n\x0cas to get rid of the difficulty of spending two or three\nmillions without authority of law, as we now did.\nId. at 475.\n\nThe opinions of the Comptroller General construing \xc2\xa7 484 tend to\nemphasize the prerogatives of the Congress and find exceptions to\napplication of \xc2\xa7 484 only when supported by a clear expression of\ncongressional intent. For example, on several occasions the Comptroller\nGeneral has ruled that funds derived from vending machines on\ngovernment-owned or -controlled property may not be used for em\xc2\xad\nployee recreation or welfare activities but must be deposited in the\nTreasury pursuant to \xc2\xa7484. 32 Comp. Gen. 124 (1952); 32 Comp. Gen.\n282 (1952). On the other hand, the Comptroller General has found\n\xc2\xa7 484 inapplicable in situations where a legislative scheme implied a\ncongressional intent to make particular programs self-sustaining. See,\ne.g., 22 Comp. Gen. 1133 (1943) (War Materials Insurance Program), 23\nComp. Gen. 652 (1944) (Soil Conservation Act), 24 Comp. Gen. 847\n(1945) (Lend Lease Act).\nThe Comptroller General also has recognized a distinction between\ntrust funds and other monies received for the United States for pur\xc2\xad\nposes of \xc2\xa7484. For example, in 51 Comp. Gen. 506 (1972), the Comp\xc2\xad\ntroller General noted that revenues generated by the Smithsonian in\noperating the National Zoo were revenues derived from the use of both\nappropriated funds and Smithsonian trust funds. Despite the fact that\nthe bulk of the administration of zoo operations is supported by appro\xc2\xad\npriated funds, the Comptroller General agreed that \xc2\xa7 484 need not\napply to zoo operations so long as full disclosure is made to the\nCongress of the gross amount of all receipts realized from zoo activities\nthat are supported by appropriated funds.5 The Comptroller General\nhas also indicated in dictum that \xc2\xa7 484 would not require that money\nreceived by the United States in trust for a particular purpose be\ndeposited in the Treasury. 27 Comp. Gen. 641 (1948). However, in that\ncase the Comptroller General carefully scrutinized the underlying law\nand facts and determined that no proper and legal trust had in fact been\ncreated. Accordingly, the Comptroller General ruled that the money\nmust remain in the Treasury unless and until Congress appropriated it\nfor a particular purpose.\nThe Office of Legal Counsel has also read \xc2\xa7 484 to have a fairly\nbroad application. For example, we have advised the Federal Bureau of\nInvestigation (FBI) that, absent legislation to the contrary, money gen\xc2\xad\nerated by FBI undercover operations must be considered money \xe2\x80\x9cre\xc2\xad\nceived . . . for the use of the United States\xe2\x80\x9d and must be deposited in\n6\nT h e C o m p tro ller\xe2\x80\x99s analysis applying \xc2\xa7 4 8 4 only to revenues that are derived entirely from the use\no f appropriated funds is likely to be sui generis to the zoo opinion. In any event, this analysis is\ndifficult to apply in the Steuart context, w here the parens patriae litigation was supported by appropri\xc2\xad\nated funds, but the subject o f com pensation (the birds) was not.\n\n686\n\n\x0cthe Treasury pursuant to \xc2\xa7484. We have also advised that Freedom of\nInformation Act fees collected by the FBI must be deposited in the\nTreasury. However, like the Comptroller General\xe2\x80\x99s trust opinions, we\nhave recognized that \xc2\xa7 484 should not be applied to money given to the\ngovernment which is not available to the United States for disposition\non its own behalf. Thus, we advised that money received by the FBI\nfrom an insurance company to purchase a stolen car is not subject to\n\xc2\xa7 484. We have also advised that money received by private entities\nworking with the government may not be subject to \xc2\xa7 484.6\nThere are no judicial precedents construing \xc2\xa7 484 that would assist us\nin analyzing the Steuart case. However, the Ninth Circuit held in\nEmery v. United States, 186 F.2d 900, 902 (9th Cir. 1951) that money\nfor rental overcharges paid by landlords to the Treasurer of the United\nStates pursuant to a court order was held by the government in trust\nfor the tenants. Since the money held in trust did not involve any\nappropriation by Congress, the court concluded that payment of the\nmoney by the United States to individual tenants would not be an\nunlawful appropriation in violation of Article I, \xc2\xa7 9 of the Constitution.\nSimilarly, in Varney v. Warehime, 147 F.2d 238, 245 (6th Cir. 1945), the\nSixth Circuit held that assessments against milk handlers to cover the\nexpenses of the War Food Administration were trust funds which need\nnot be deposited in the Treasury.\nApplying these precedents to the settlement of the Steuart waterfowl\nclaim, we believe that there are two theories that could be asserted to\ndefend a settlement that did not direct the money into the federal\nTreasury, as generally required by \xc2\xa7 484. The first theory would be that\nthe money was received in trust for the people of Virginia or the\nUnited States. The second theory would be that under the terms of the\nsettlement no money was \xe2\x80\x9creceived\xe2\x80\x9d at all.\nThe argument under the trust theory could be based upon the terms\nof the settlement (which could explicitly purport to create a trust), the\ntwo Comptroller General opinions cited above which recognize excep\xc2\xad\ntions to the application of \xc2\xa7 484 to bona fide trusts, and the two circuit\ncourt cases that find no constitutional infirmity in the use of funds\nreceived in trust by the Executive without explicit legislative authoriza\xc2\xad\ntion of the expenditure.7 The weaknesses of a trust argument are: (1)\nthat trusts created by nonstatutory executive action could indeed be\nused to circumvent legislative prerogatives in the appropriations area;\n(2) that to some extent all money held in the Treasury or recovered by\n6 T here are also C o m p tro ller G eneral precedents to this effect. See 44 Com p. G en. 87 (1964)\n(involving an entity established w ith federal funds but m aintained through grants from a state\nuniversity).\n7 T here is also some w eak legislative history to \xc2\xa7 484\'s predecessor statute from w hich it could be\nargued that at the time the original statute was enacted, C ongress recognized that trust funds w ere\ndifferent from o th e r public funds. See debate on the am endm ent proposed by R epresentative Hall,\nC ong. Globe, 30th Cong., 1st Sess. 466 (1848).\n\n687\n\n\x0cthe United States in litigation is received \xe2\x80\x9cin trust\xe2\x80\x9d for the citizenry;\nand (3) that Congress has created or recognized trust funds explicitly in\nnumerous cases 8 and implicitly in others,9 but it has neglected to do so\nin this context.10 On balance, we must conclude that the trust argument\nis insufficient in this case to override the legislative mandate of \xc2\xa7 484.\nUnder the settlement as it is presently structured, we must also reject\nthe argument that \xc2\xa7 484 does not apply because no money has been\nreceived. In our view, the fact that no cash actually touches the palm\nof a federal official is irrelevant for purposes of \xc2\xa7 484, if a federal\nagency could have accepted possession and retains discretion to direct\nthe use of the money. The doctrine of constructive receipt will ignore\nthe form of a transaction in order to get to its substance. Although this\ndoctrine originally developed in the context of tax cases, see, e.g.,\nBennett v. United States, 293 F.2d 323 (9th Cir. 1961) and PittsburghDes Moines Steel Co. v. United States, 360 F. Supp. 597, 600-601 (W.D.\nPa. 1971), it should apply in this context as well, if \xc2\xa7 484 is to be given\nany practical effect.11 Since we believe that money available to the\nUnited States and directed to another recipient is constructively \xe2\x80\x9cre\xc2\xad\nceived\xe2\x80\x9d for purposes of \xc2\xa7 484, we conclude that the proposed settle\xc2\xad\nment is barred by that statute.\nOn the other hand, we do not believe that \xc2\xa7 484 would be offended\nby a settlement that attributes the entire sum of money received to our\nco-plaintiff, the Commonwealth of Virginia. The Commonwealth has\nan independent claim to these damages, grounded in the traditional\nparens patriae authority of state sovereigns. It should also be noted that\nthe Commonwealth\xe2\x80\x99s independent right to compensation for oil spills\nwas upheld in In re Complaint o f Allied Towing Corp., 478 F. Supp. 398,\n403 (E.D. Va. 1979), and is recognized in the Federal Water Pollution\nControl Act. 33 U.S.C. \xc2\xa7 1321 (F)(4)\xe2\x80\x94(5). Since the United States has not\nincurred any expense or monetary loss in connection with the lost\nwildlife, we see no reason why the Justice Department would be\n8 31 U .S.C. \xc2\xa7725s contains a listing o f num erous trust funds that C ongress has recognized. T he\nsection provides that \xe2\x80\x9call m oneys accruing to these funds are hereby appropriated and shall be\ndisbursed in com pliance w ith the term s o f the tru st.\xe2\x80\x9d\n9 See. e.g., the trust funds found in Emery, 186 F.2d 900, and Varney, 147 F.2d 258.\n10 It should be noted that one year after the Steuart oil spill, the Federal W ater Pollution C ontrol\nAct was am ended to permit the state o r federal governm ent to recover the cost o f replacem ent or\nrestoration o f natural resources as a clean-up cost, and to perm it the U nited States or a state\ngovernm ent to sue on behalf o f the public as trustee o f the natural resources and to use sums\nrecovered to rehabilitate the natural resources. 33 U .S.C. \xc2\xa7 1321 (0 (4)-(5) (Supp. I ll 1979).\n11 T h e do ctrin e o f co nstructive receipt also has been applied by federal agencies in defining\nprohibitions on the acceptance o f gifts and honoraria by federal employees. See. e.g., 11 C .F.R .\n\xc2\xa7 110.12(b)(5), w hich defines \xe2\x80\x9caccep ted " in the follow ing way:\n\xe2\x80\x9c Accepted*\' means that th ere has been actual o r co n structive receipt o f the h o n o rar\xc2\xad\nium and that the federal officeholder o r em ployee exercises dom inion o r control ov er it\nand determ ines its subsequent use. H ow ever, an honorarium is not accepted if the\nfederal officeholder o r em ployee makes a suggestion that the honorarium be given\ninstead to a charitable organization w hich is selected by the person paying the hono\xc2\xad\nrarium from a list o f 5 o r m ore charitable organizations provided by the officeholder\no r employee.\nSee also th e D epartm ent o f Ju stice regulation a t 28 C .F .R . 45.735-12(e).\n\n688\n\n\x0cobligated to seek these damages in lieu of the state plaintiff. If the\ndamages are received and directed to a charity by the state plaintiff,\n\xc2\xa7 484 would not be implicated.12\nL\n\narry\n\nA. H\n\nam m ond\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n12\nA lthough w e have concluded that the Steuart settlem ent as proposed is barred by \xc2\xa7 484, w e must\nnote that the same p rocedure w ould be expressly authorized for subsequent oil spills by the am end\xc2\xad\nm ents to the Federal W ater Pollution C ontrol A ct, 33 U.S.C. \xc2\xa7 1321(fK4>\xe2\x80\x94\n<5).\n\n689\n\n\x0c'


b'Constitutionality of the OLC Reporting Act of 2008\nS. 3501, the OLC Reporting Act of 2008, which would require the Department of Justice to report to\nCongress on a wide range of confidential legal advice that is protected by constitutional privilege, is\nunconstitutional.\nThe bill raises very serious policy concerns because it would undermine the public interest in\nconfidential advice and information sharing that is critical to informed and effective government\ndecisionmaking.\n\nNovember 14, 2008\n\nLETTER FOR THE MAJORITY LEADER\nUNITED STATES SENATE\nThe Department of Justice has reviewed S. 3501, the OLC Reporting Act of\n2008, which would amend 28 U.S.C. \xc2\xa7 530D to require the Department to report\nto Congress on a wide range of confidential legal advice, thus extending the\nreporting requirement far beyond the decisions on statutory unenforceability\ncurrently covered by the statute. The bill would require reporting about advice that\nis protected by constitutional privilege and, in so doing, could deter Executive\nBranch officials from seeking, and the Department from providing, candid legal\nadvice regarding the administration of important government programs. We\nbelieve that the bill is unconstitutional. Moreover, the bill raises very serious\npolicy concerns because it would undermine, rather than advance, the public\ninterest in confidential advice and information sharing that Congress, the Supreme\nCourt, and administrations of both parties have long recognized as critical to\ninformed and effective government decisionmaking. For these reasons, explained\nin greater detail below, the Department strongly opposes this legislation, and if it\nwere presented to the President, his senior advisers would recommend that he veto\nit.\nI. Unconstitutionality\nSection 2 of the bill would amend 28 U.S.C. \xc2\xa7 530D(a)(1) to require the Attorney General to submit to Congress, within 30 days of issuing legal advice covered\nby the provision, a report of any instance in which the Department issues an\n\xe2\x80\x9cauthoritative legal interpretation\xe2\x80\x9d of \xe2\x80\x9cany Federal statute,\xe2\x80\x9d even if the legal\nconstruction has not risen, and may never rise, to the level of an Executive Branch\npolicy not to enforce the statute in question and simply construes the statute using\nsettled interpretive rules that courts routinely employ. Section 2 would then amend\n28 U.S.C. \xc2\xa7 530D(a)(2) to mandate that any report containing \xe2\x80\x9cclassified information\xe2\x80\x9d related to \xe2\x80\x9cintelligence activities\xe2\x80\x9d shall be deemed \xe2\x80\x9csubmitted to Congress\xe2\x80\x9d in accordance with section 530D as amended only if the information is\nsubmitted to the House and Senate judiciary committees as well as the intelligence\n\n14\n\n\x0cConstitutionality of the OLC Reporting Act of 2008\n\ncommittees, and that any report containing \xe2\x80\x9cclassified information about covert\nactions\xe2\x80\x9d shall be deemed properly submitted only if it is submitted to the foregoing\ncommittees, the Speaker and Minority Leader of the House of Representatives,\nand the Majority and Minority Leaders of the Senate.\nThe bill is unconstitutional in two respects. First, it infringes upon the President\xe2\x80\x99s settled constitutional authority over classified information by purporting to\nprescribe the content, timing, and recipients of any classified disclosures the\nExecutive Branch chooses to make in connection with section 530D reports. See,\ne.g., Dep\xe2\x80\x99t of Navy v. Egan, 484 U.S. 518, 527 (1988) (discussing the President\xe2\x80\x99s\nconstitutional authority to control national security information); Whistleblower\nProtections for Classified Disclosures, 22 Op. O.L.C. 92, 94\xe2\x80\x9399 (1998) (same,\ndiscussing cases and practice since the Founding). Administrations of both parties\nhave recognized that legislative mandates directing the timing and extent of\nclassified disclosures are constitutionally objectionable even when the disclosures\nin question would go to Congress. In 1998, for example, the Department objected\nto, and President Clinton ultimately threatened to veto, see Statement of Administration Policy, S. 1668\xe2\x80\x94Disclosure to Congress Act of 1998 (Mar. 9, 1998), a\nbill that would have required the President to allow federal agency employees to\ndisclose certain classified information directly to members of Congress. See\nWhistleblower Protections for Classified Disclosures, 22 Op. O.L.C. at 100. The\nDepartment testified that the bill:\nwould deprive the President of his authority to decide, based on the\nnational interest, how, when and under what circumstances particular\nclassified information should be disclosed to Congress. This is an\nimpermissible encroachment on the President\xe2\x80\x99s ability to carry out\ncore executive functions. In the congressional oversight context, as\nin all others, the decision whether and under what circumstances to\ndisclose classified information must be made by someone who is acting on the official authority of the President and who is ultimately\nresponsible to the President.\nId. S. 3501 violates the foregoing principles by purporting to prescribe the timing\nand extent of any classified disclosures the President, acting through the Attorney\nGeneral, would choose to make in connection with the Executive Branch\xe2\x80\x99s\nreporting obligations under section 530D as amended.\nSecond, and more broadly, the bill\xe2\x80\x99s disclosure requirements are unconstitutional because they would require reporting to Congress about confidential legal\nadvice that is subject to the constitutional doctrine of executive privilege while\nnarrowing section 530D\xe2\x80\x99s current exemption for privileged information from\nrequired reports. Currently, 28 U.S.C. \xc2\xa7 530D requires the Attorney General to\nreport Department legal positions outside the litigation context only where the\nDepartment \xe2\x80\x9cestablishes or implements a formal or informal policy\xe2\x80\x9d either (1) to\n\n15\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nrefrain from enforcing a statutory or other legal position \xe2\x80\x9con the grounds that such\nprovision is unconstitutional\xe2\x80\x9d or (2) to refrain from complying with a binding\njudicial decision interpreting the Constitution or any other law that is enforced by\nthe Department. 28 U.S.C. \xc2\xa7 530D(a)(1)(A)(i), (ii). The bill would substantially\nexpand the foregoing reporting obligations by requiring the Attorney General to\nreport on legal advice on statutory construction that does not, and may never,\nresult in a \xe2\x80\x9cformal or informal policy to refrain from enforcing\xe2\x80\x9d a federal statute\non constitutional or other grounds. Much of the legal advice the Department\nprovides the President and Executive Branch agencies about how to interpret and\ncomply with federal statutes might fall within one of the sub-provisions the bill\nwould add to section 530D(a)(1). For example, many legal opinions apply the\njudicially created doctrine of constitutional avoidance to support an interpretation\nof a statute that does not raise the constitutional concerns that would be raised by\nan alternative interpretation. And many opinions similarly respect and apply the\njudicially created \xe2\x80\x9cclear statement\xe2\x80\x9d principles that counsel against applying a\nstatute in a way that affects the balance of power among the three branches of the\nfederal government, or the balance of power between the federal government and\nthe states, absent a clear statement that the legislation is designed to do so.\nThus, we believe that the bill would contemplate reporting on many Office of\nLegal Counsel (\xe2\x80\x9cOLC\xe2\x80\x9d) opinions. OLC opinions belong to a category of Executive\nBranch documents protected by executive privilege. They fall within the scope of\nthe deliberative process, attorney-client, and, to the extent they are generated or\nused to assist in presidential decisionmaking, presidential communications\ncomponents of executive privilege. See, e.g., Assertion of Executive Privilege With\nRespect to Clemency Decision, 23 Op. O.L.C. 1, 1\xe2\x80\x932 (1999) (opinion of Attorney\nGeneral Janet Reno) (addressing presidential communications component);\nAssertion of Executive Privilege Regarding White House Counsel\xe2\x80\x99s Office\nDocuments, 20 Op. O.L.C. 2, 3 (1996) (opinion of Attorney General Reno)\n(discussing the deliberative process and attorney-client components) (\xe2\x80\x9cWhite\nHouse Counsel\xe2\x80\x99s Office Documents\xe2\x80\x9d); Confidentiality of the Attorney General\xe2\x80\x99s\nCommunications in Counseling the President, 6 Op. O.L.C. 481, 494 n.24 (1982)\n(explaining that the attorney-client privilege is \xe2\x80\x9csubsumed under a claim of\nexecutive privilege when a dispute arises over documents between the Executive\nand Legislative Branches\xe2\x80\x9d).\nAdministrations of both political parties have long recognized the importance\nof protecting the Executive Branch\xe2\x80\x99s confidential legal advice. See Response to\nCongressional Requests for Information Regarding Decisions Made Under the\nIndependent Counsel Act, 10 Op. O.LC. 68, 78 (1986) (discussing \xe2\x80\x9cimportance of\nprotecting the President\xe2\x80\x99s ability to receive candid legal advice\xe2\x80\x9d). As Assistant\nAttorney General John Harmon explained in a memorandum issued at the end of\nthe Carter Administration:\n\n16\n\n\x0cConstitutionality of the OLC Reporting Act of 2008\n\n[T]he reasons for the constitutional privilege against the compelled\ndisclosure of executive branch deliberations have special force when\nlegal advice is involved. None of the President\xe2\x80\x99s obligations is more\nsolemn than his duty to obey the law. The Constitution itself places\nthis responsibility on him, in his oath of office and in the requirement of article II, section 3 that \xe2\x80\x9che shall take Care that the Laws be\nfaithfully executed.\xe2\x80\x9d Because this obligation is imposed by the Constitution itself, Congress cannot lawfully undermine the President\xe2\x80\x99s\nability to carry it out. Moreover, legal matters are likely to be among\nthose on which high government officials most need, and should be\nencouraged to seek, objective, expert advice. As crucial as frank debate on policy matters is, it is even more important that legal advice\nbe \xe2\x80\x9ccandid, objective, and even blunt or harsh,\xe2\x80\x9d see United States v.\nNixon, 418 U.S. 683, 708 (1974), where necessary. Any other approach would jeopardize not just particular policies and programs\nbut the principle that the government must obey the law. For these\nreasons, it is critical that the President and his advisers be able to\nseek, and give, candid legal advice and opinions free of the fear of\ncompelled disclosure.\nMemorandum for the Attorney General, from John M. Harmon, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: The Constitutional Privilege for Executive\nBranch Deliberations: The Dispute With a House Subcommittee Over Documents\nConcerning the Gasoline Conservation Fee at 26 (Jan. 13, 1981).\nPut simply, as is the case with all other public and private sector clients who\nseek legal advice, if Executive Branch officials are to execute their constitutional\nand statutory responsibilities, they must have access to candid and confidential\nlegal advice and assistance. See Confidentiality of the Attorney General\xe2\x80\x99s Communications in Counseling the President, 6 Op. O.L.C. at 495 (emphasizing that the\nattorney-client \xe2\x80\x9cprivilege . . . functions to protect communications between\ngovernment attorneys and client agencies or departments . . . much as it operates to\nprotect attorney-client communications in the private sector\xe2\x80\x9d); Rules of Evidence\nfor the United States Courts and Magistrates, 56 F.R.D. 183, 235, 237 (1972)\n(expressly stating that the \xe2\x80\x9cdefinition of client\xe2\x80\x9d for purposes of attorney-client\nprivilege \xe2\x80\x9cincludes governmental bodies\xe2\x80\x9d).\nFinally, we note that the Executive Branch\xe2\x80\x99s need to protect the confidentiality\nof Office of Legal Counsel legal advice is comparable to the need recognized by\nAttorney General Reno in 1996, in advising President Clinton on the legality and\nappropriateness of an executive privilege assertion with respect to \xe2\x80\x9canalytical\nmaterial or other attorney work-product prepared by the White House Counsel\xe2\x80\x99s\nOffice\xe2\x80\x9d:\n\n17\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nI agree [with the Counsel to the President] that the ability of the\nWhite House Counsel\xe2\x80\x99s Office to serve the President would be significantly impaired if the confidentiality of its communications and\nwork-product is not protected . . . . Impairing the ability of the Counsel\xe2\x80\x99s Office to perform its important functions for the President\nwould in turn impair the ability of you and future Presidents to carry\nout your constitutional responsibilities.\nWhite House Counsel\xe2\x80\x99s Office Documents, 20 Op. O.L.C. at 3.\nFor all of these reasons, the bill\xe2\x80\x99s expansion of section 530D\xe2\x80\x99s reporting obligations would be unconstitutional even with respect to non-classified information.\nII. Policy Concerns\nThe bill\xe2\x80\x99s disclosure requirements are not just unconstitutional; they are also\nunjustified and bad policy. Requiring the Department to report on the broad range\nof confidential legal opinions referenced in the bill would deter precisely the kind\nof candid deliberations regarding government action that has long been recognized\nas vital to the integrity of government decisionmaking. In 1974, a unanimous\nSupreme Court emphasized\nthe valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience\nteaches that those who expect public dissemination of their remarks\nmay well temper candor with a concern for appearances and for their\nown interests to the detriment of the decisionmaking process.\nUnited States v. Nixon, 418 U.S. 683, 705 (1974). See also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150\xe2\x80\x9351 (1975) (noting that the deliberative process\ncomponent of executive privilege is premised on the belief that disclosing the\n\xe2\x80\x9ccommunications and the ingredients of the decisionmaking process\xe2\x80\x9d would\ninevitably \xe2\x80\x9cinjur[e] the quality of agency decisions\xe2\x80\x9d by inhibiting \xe2\x80\x9cfrank discussion of legal or policy matters\xe2\x80\x9d).\nThe bill\xe2\x80\x99s requirements could deter the President and Executive Branch officials responsible for executing government programs, including especially highly\nsensitive programs, from soliciting the Department\xe2\x80\x99s legal advice for fear that the\nadvice would trigger reporting obligations that could compromise a program\nand/or subject its legal assessment to unnecessary and damaging uncertainty or\npublicity. In addition, the bill\xe2\x80\x99s reporting requirements could chill the Department\xe2\x80\x99s ability or willingness to provide full and candid legal assessments of\nstatutes or government actions. For example, legal advisers might avoid relying on\n\n18\n\n\x0cConstitutionality of the OLC Reporting Act of 2008\n\nthe well-established clear statement and constitutional avoidance rules of construction in order not to trigger the bill\xe2\x80\x99s reporting requirements. Doing so would\ninevitably degrade the quality of the resulting legal advice and, thus, the integrity\nof the government decisionmaking to which it pertains. The bill would thus\nundermine, rather than advance, the public\xe2\x80\x99s interest in having Executive Branch\nofficials, just like private parties, receive full, candid and confidential legal advice\nto ensure that they conduct the government\xe2\x80\x99s business effectively and in accordance with law.\nThe foregoing problems with the bill\xe2\x80\x99s reporting requirements are not a necessary (or permissible) cost of legitimate congressional oversight. Congress has\nample authority to oversee Executive Branch programs and activities, and can\ninquire through the committee and Government Accountability Office oversight\nprocesses about the legal basis for Executive Branch decisions in the course of\noverseeing those programs and activities. The Executive Branch has a wellestablished process for accommodating such inquiries, see, e.g., Congressional\nRequests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 158\xe2\x80\x93\n61 (1989); Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. at\n101\xe2\x80\x9302, which process the courts have recognized as the constitutionally contemplated method by which the branches should share information that Congress has a\nlegitimate need to know but that the Executive Branch also has a legitimate,\nconstitutionally based need to protect. See, e.g., United States v. AT&T Co., 567\nF.2d 121, 127 (D.C. Cir. 1977). The bill\xe2\x80\x99s reporting requirements are an unnecessary and unwise effort to replace this well-established process with a reporting\nstructure that violates constitutional limits and undermines the public interest\nprotecting the confidentiality of legal advice vital to the integrity and legality of\ngovernment decisionmaking. Accordingly, the Department strongly opposes the\nlegislation on both legal and policy grounds.\nThank you for the opportunity to present our views. The Office of Management\nand Budget has advised us that from the perspective of the Administration\xe2\x80\x99s\nprogram, there is no objection to submission of this letter.\nMICHAEL B. MUKASEY\nAttorney General\n\n19\n\n\x0c'