b'The President\xe2\x80\x99s Authority to Take Certain Actions\nRelating to Communications from Iran\nT h e P resid en t has s ta tu to ry and co n stitu tio n al a u th o rity , su b ject to F irst A m e n d m e n t\nlim itations, to lim it o r e m b a rg o a lto g e th e r v id e o o r a u d io c o m m u n ic a tio n s fro m Iran\nw h ic h a g g ra v a te th e p resen t crisis, e ith e r unilaterally o r in c o m p lia n c e w ith U nited\nN atio n s S ecu rity C o u n c il sanctions.\nT h e F irst A m en d m en t req u ires th at an y actio n taken to lim it c o m m u n ic a tio n s from Iran\nb e n a rro w ly tailo re d and sw eep no m o re b ro a d ly than th e u n d erly in g ju stificatio n\nrequires. A restrictio n th at se v ers all c o m m u n icatio n s links w ith Iran w o u ld be subject\nto less ex actin g F irst A m en d m en t sc ru tin y th an a m o re lim ited re stric tio n based in\nw h o le o r in p a rt on th e c o n te n ts o f th e com m u n icatio n .\n\nDecem ber 27, 1979\nM E M O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L\nYou have asked us to provide an overview o f the legal issues raised\nby executive action, either unilaterally or in com pliance w ith United\nNations Security Council sanctions, that w ould have the effect o f pro\xc2\xad\nhibiting im portation o f certain types o f television messages or transm is\xc2\xad\nsions from Iran. Specifically, the action would address video messages\nthat aggravate the hostage situation by creating in the minds o f the\ncaptors the impression that they have a vehicle for manipulating public\nopinion in this country. These video messages might include statem ents\nby the A yatollah Khomeini, messages from the student captors, or tapes\no f mob dem onstrations in front o f the Am erican Embassy in Tehran.\nWe consider first the President\xe2\x80\x99s statutory and constitutional authority\nto proceed with and w ithout a Security Council resolution. W e then\noutline the First Am endm ent limits on that authority.\nI. Authority\nA rticle 41 o f the United Nations C harter gives the Security Council\nauthority to \xe2\x80\x9cdecide w hat measures not involving the use o f armed\nforce are to be em ployed to give effect to its decisions.\xe2\x80\x9d T he range of\nmeasures appears to be quite broad, and may \xe2\x80\x9c include com plete or\npartial interruption o f econom ic relations and o f rail, sea, air, postal,\ntelegraphic, radio, and other means o f com m unication, and the sever\xc2\xad\nance o f diplom atic relations.\xe2\x80\x9d Therefore, A rticle 41 can be construed to\ninclude an international news embargo: a com plete o r selective restric\xc2\xad\ntion o f news transm itted\xe2\x80\x94either directly o r indirectly\xe2\x80\x94from a particu153\n\n\x0clar country. It w ould at the very least include severance o f the means\no f transmission that link the em bargoed country with the outside world,\ne.g., m icrow ave transmission links.\nU nder 22 U.S.C. \xc2\xa7287c, the President by executive order may imple\xc2\xad\nment a Security Council resolution and, to that end,\n. . . investigate, regulate or prohibit, in w hole or in part,\neconom ic relations o r rail, sea, air, postal, telegraphic,\nradio, and other means o f com m unication between any\nforeign country or any national thereof or any person\ntherein and the United States or any person subject to the\njurisdiction thereof, or involving any property subject to\nthe jurisdiction o f the United States.\nW e think that this provision does constitute a broad grant o f authority\nby C ongress to the President. Subject to First Am endm ent limitations,\nit would appear to em pow er him to prevent im portation o f video or\naudio messages from Iran, certain leaders o f that nation, or particular\ncitizens within that nation, and thereby prevent their display to the\nAm erican people via radio and television. Section 287c(b) states that\nanyone convicted o f violating such an executive order w ould be subject\nto a fine o f not m ore than $10,000 and im prisonment o f not m ore than\n10 years. In the event o f violation by a corporation, \xc2\xa7287c provides for\nthe fining and im prisonment o f officers, directors, and agents o f the\ncorporation and the seizure o f corporate property involved in the\nviolation. (T here is no injunctive provision in the statute.)\nShould the President wish to impose a message em bargo unilaterally,\ni.e\xe2\x80\x9e w ithout the benefit o f a Security Council resolution, other sources\no f statutory and constitutional authority are arguably available to him.\n1.\nT he International Em ergency Econom ic Pow ers A ct (IE E PA ), 50\nU.S.C. \xc2\xa7 1701-06 (Supp. I 1977), affords the President the authority in a\nnational em ergency to\n. . . investigate, regulate, direct and compel, nullify, void,\nprevent o r prohibit, any acquisition, holding, withholding,\nuse, transfer, w ithdraw al, transportation, im portation or\nexportation of, o r dealing in, or exercising any right,\npow er, o r privilege w ith respect to, or transactions in\xc2\xad\nvolving, any property in w hich any foreign country o r a\nnational thereof has any interest; by any person, or with\nrespect to any property, subject to the jurisdiction o f the\nUnited States.\n50 U.S.C. \xc2\xa7 1702(a)(1)(B). T hat authority is subject to the significant\nproviso that it does not include \xe2\x80\x9cthe authority to regulate or prohibit\ndirectly o r indirectly any postal, telegraphic, telephonic, or other per\xc2\xad\n154\n\n\x0csonal communication, which does not involve a transfer o f anything of\nvalue.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1702(b).\nBecause o f this proviso we think there are some restrictions directed\ntow ard com m unications that are not within the term s o f the IE E P A .\nW e think that the A ct could properly be invoked to limit the use of\nIranian facilities by Am erican netw orks including the use o f broadcast\xc2\xad\ning studios, transmission lines, and local film crews. In short, the eco\xc2\xad\nnomic dimension o f news broadcasting could be directly regulated. But\nit probably does not afford authority to regulate the com m unications\ndimension p er se. On this distinction between econom ic and noneco\xc2\xad\nnomic considerations, tw o statem ents in the pertinent House com m ittee\nreport are w orth review:\nAs a further substantive constraint, the scope o f the au\xc2\xad\nthorities should be clearly limited to the regulation o f\ninternational economic transactions. T herefore the bill\ndoes not include authorities m ore appropriately lodged in\nother legislation, such as authority to regulate purely d o \xc2\xad\nmestic transactions or to respond to purely dom estic cir\xc2\xad\ncumstances, or authority to control noneconomic aspects\no f international intercourse such as personal com m unica\xc2\xad\ntions or humanitarian contributions.\nH. Rep. No. 459, 95th Cong., 1st Sess. 10-11 (1977). T he report goes\non to state:\n[W]hile it should be the purpose o f the legislation to\nauthorize tight controls in time o f national em ergency,\nthese controls should not extend to the total isolation of\nthe people o f the United States from the people o f any\no th er country. Such isolation is not only unwise from a\nforeign policy standpoint, but enforcem ent o f such isola\xc2\xad\ntion can also entail violation o f First Am endm ent rights o f\nfreedom o f expression if it includes, for example, prohibi\xc2\xad\ntions on exchange o f printed matter, or on hum anitarian\ncontributions as an expression o f religious convictions.\nId. at 11.\n\n2.\nA second, and probably the best, source o f statutory authority is\n22 U.S.C. \xc2\xa7 1732. It provides:\nW henever it is made known to the President that any\ncitizen o f the United States has been unjustly deprived o f\nhis liberty by o r under the authority o f any foreign gov\xc2\xad\nernment, it shall be the duty o f the President forthw ith to\ndemand o f that governm ent the reasons o f such im prison\xc2\xad\nment; and if it appears to be -wrongful and in violation o f\nthe rights o f Am erican citizenship, the President shall\n155\n\n\x0cforthw ith dem and the release o f such citizen, and if the\nrelease so dem anded is unreasonably delayed or refused,\nthe President shall use such means, not am ounting to acts\no f war, as he may think necessary and proper to obtain or\neffectuate the release; and all the facts and proceedings\nrelative thereto shall as soon as practicable be com m uni\xc2\xad\ncated by the President to Congress.\nT his provision was passed by C ongress in 1868 and has never been\nutilized. It is striking both in the breadth o f the authority it confers and\nin its apparent textual appropriateness for the present situation. We\nthink that this section can plausibly be read to authorize the President\nto take all actions\xe2\x80\x94short o f acts o f w ar and consistent with specific\nconstitutional prohibitions\xe2\x80\x94necessary to obtain the release o f the hos\xc2\xad\ntages.\n3. T he President arguably has statutory authority to prevent the use\no f C O M SA T satellites for the broadcast o f inflam m atory newsreels\nfrom Iran. Section 721 o f Title 47 o f the United States Code gives the\nPresident authority to\n(4) exercise such supervision over relationships of\n[COM SAT] w ith foreign governm ents or entities or with\ninternational bodies as may be appropriate to assure that\nsuch relationships shall be consistent w ith the national\ninterest and foreign policy o f the United States.\nT he problem with relying on this section in the proposed fashion is that\nthe President is not attem pting to regulate the relationship o f C O M SA T\nwith a foreign nation, but w ith Am erican corporations that are attem pt\xc2\xad\ning to transm it inform ation about that nation. W hile w e have not had\ntime as yet to study the application o f this statute, w e are unaware of\nany occasion on w hich this pow er has been utilized.\n4. Finally, there is an argum ent that the President has the inherent\nconstitutional authority to take the proposed action on the basis o f his\nplenary role in foreign affairs. United States v. Curtiss-W right Export\nCorp., 299 U.S. 304, 320 (1936). T hat is, in the absence o f an express\nlimitation on his authority by Congress, the President can take all\naction necessary to protect A m erican nationals overseas, unless again\nthese actions violate specific constitutional restrictions. Analysis would\nproceed along the lines o f Mr. Justice Jackson\xe2\x80\x99s concurrence in Youngs\xc2\xad\ntown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952). An\nargum ent similar to the one w e have presented to the D.C. Circuit in\nthe Iranian student deportation case could be made. T he President\xe2\x80\x99s\npow er, w e could contend, is at its greatest in this arena because he has\nconsiderable and well recognized constitutional pow ers in the foreign\naffairs area, and those pow ers have been augm ented by C ongress\xe2\x80\x99\n156\n\n\x0cdelegation to the President o f all the pow er the legislature possesses to\nrespond to acts by foreign powers that deprive Am ericans o f their\nliberty (i.e., the 1868 untested statute). Even w ithout relying on that\nparticular statutory delegation, we could argue that the President is\nmoving into Mr. Justice Jackson\xe2\x80\x99s \xe2\x80\x9czone o f tw ilight\xe2\x80\x9d w here exigency\ndemands that the constitutional scheme perm it prom pt executive action,\nalthough a similar restriction w ould be within the legislative pow er o f\nCongress. It should be noted that a potential response to this argum ent\nis that by passing the IE E P A , Congress has defined the express m anner\nby which the President is to impose nonm ilitary sanctions on a foreign\ngovernment.\nIn considering w hich \xe2\x80\x9cauthority\xe2\x80\x9d base to assert, it will be im portant\nto weigh the fact that under both the U.N. sanction alternative and\nunder IE E P A a criminal sanction is readily available. Absent reliance\non ill-fitting espionage laws, there are no criminal sanctions for failures\nto com ply with actions based on the President\xe2\x80\x99s constitutional pow ers\nor on the 1868 statute.\nII. First Amendment\nRegardless w hether the President relies on a Security Council resolu\xc2\xad\ntion or some other basis for the proposed action, he still is bound by\nFirst Am endm ent limitations. It is clear that U.S. treaty obligations are\nsubject to constitutional scrutiny and, specifically, First A m endm ent\nscrutiny. R eid v. Covert, 354 U.S. 1 (1957). T he First A m endm ent\nprotects the rights o f Am ericans to receive inform ation and ideas,\nincluding those from abroad. Kleindienst v. Mandel, 408 U.S. 753, 76263 (1972).\nT he nature o f First A m endm ent scrutiny will depend upon the type\no f restriction imposed by Security Council or independent executive\naction. T he proposed action might simply consist o f a ban on certain\nspecified types o f television broadcasts. Transmission o f the broadcast\ndespite the ban could subject the netw ork to criminal sanctions, but\nthere would be no prior restraint. Alternatively, the President might\ninstitute a licensing scheme w hereby all broadcasts o f a particular class\nmust be cleared by federal authorities before they can be broadcast\ndomestically. This is a classic prior restraint and subject to m ore exact\xc2\xad\ning scrutiny.\nW hether seen as a prior restraint o r as a less severe form o f action,\nthe governm ent\xe2\x80\x94as a minimum\xe2\x80\x94must put forw ard a \xe2\x80\x9ccom pelling in\xc2\xad\nterest\xe2\x80\x9d in order to justify the restriction. M oreover, there must be a\nclose nexus betw een the proposed restriction and the purported interest,\ne.g., Police Departm ent o f the C ity o f Chicago v. Mosely, 408 U.S. 92, 9596 (1972), and the action taken must be narrow ly tailored and may\nsweep no m ore broadly than the underlying justification requires. T he\njustification in this case m ight be that the Iranian governm ent\xe2\x80\x99s and the\n157\n\n\x0ccap to rs\xe2\x80\x99 ability to gain access to Am erican television prolongs the\ncaptivity o f the hostages by affording the abductors a stage that they\nare unwilling to yield, and that if they are denied the organs of\npublicity, the rationale for holding the hostages will dissipate, resulting\nin their release.\nThis characterization o f the United States\xe2\x80\x99 interest necessarily\nprom pts a subsidiary question. Precisely w hat com munications prolong\nthe crisis? If the proposed restrictions are too narrow , thus permitting\neffective publication o f Iranian grievances in some form, it can be\nargued that the United States does not have a com pelling interest in the\nrestriction actually imposed because it does not materially advance the\nstated governm ent interest. If, on the other hand, the restriction is\nstated broadly, such as a ban on all display o f film generated in Iran,\nthe restriction will be subject to the argum ent that it is overbroad,\nparticularly if the print media could continue to use pictures from Iran.\nA ny restriction must have a clearly defined purpose and an intelligible\nscope in light o f that purpose if there is to be any chance o f passing\njudicial scrutiny.\nO f course, an even m ore dem anding standard w ould apply if the\naction includes a licensing system w hereby the Executive w ould pass\non telecasts before they are transm itted to the Am erican public. As the\nSuprem e C ourt has repeatedly stated, any \xe2\x80\x9csystem o f prior restraints of\nexpression com es to this C ourt bearing a heavy presumption against its\nconstitutional validity.\xe2\x80\x9d N ew York Times Co. v. United States, 403 U.S.\n713, 714 (1971). W hatever the justification here, we would have a\ndifficult time dem onstrating the sort o f direct, immediate and irrepara\xc2\xad\nble harm required to w ithstand this most exacting form o f scrutiny. The\ncases, as confirm ed by our experience w ith the Iranian student dem on\xc2\xad\nstrations, do how ever suggest tw o guiding considerations: (1) a court is\nlikely to accord substantial deference to the factual assertions and\neducated, albeit speculative, judgm ents o f the President\xe2\x80\x99s foreign affairs\nexperts; and (2) our chances o f success may turn significantly on the\nextent to w hich we can dem onstrate to a court that the action taken is\nfinely tuned and narrow . Indeed, the few cases that are close to being\non point suggest that w e w ould im prove the likelihood o f success if we\ncan claim that the regulation here affects only time, place, o r manner\nand is not designed to stifle the flow o f ideas o f information.\nW e note that the com m unications em bargo could take a third form\nthat m ight raise less troublesom e First A m endm ent problem s but which\nw ould probably have limited practical effect. T hat w ould be a restric\xc2\xad\ntion that simply severs all telegraphic, telephonic, postal, com m unica\xc2\xad\ntions satellite, and m icrow ave links w ith Iran. This w ould not be a\ncontent-based m easure and w ould be subject to less exacting First\nA m endm ent scrutiny as a result. It could be justified as another step in\nthe effort to isolate Iran politically and econom ically from the rest of\n158\n\n\x0cthe world. As a practical measure, we do not think, how ever, such a\nrestriction would prove useful. Am erican networks could continue to\ngather film in T ehran and transmit it to the United States from facilities\noutside Iran. It would probably have only a tem porary disruptive effect\non the ability o f the abductors to comm and international and Am erican\nforums.\nIt was this type o f incidental restriction on First Am endm ent com m u\xc2\xad\nnication that this Office addressed in 1977, when at issue was a p ro \xc2\xad\nposed executive order prohibiting the use o r transfer o f any funds\nwithin the United States for the purpose o f maintaining in this country\nan office or agent o f the governm ent o f Rhodesia. This order was\nintended to implement U.N. Resolution 409. Since one effect o f the\norder would be the closing o f the Rhodesian Inform ation Office in the\nUnited States, it was argued by opponents of the order that the neces\xc2\xad\nsary consequence would be to reduce unconstitutionally the flow of\nideas in this country. We advised that since the impact on the Inform a\xc2\xad\ntion Office was merely incidental to this G overnm ent\xe2\x80\x99s legitim ate inter\xc2\xad\nest in joining the U.N. effort to effect the diplom atic and econom ic\nisolation o f Rhodesia, the order w ithstood First Am endm ent scrutiny.\nIt was not an attem pt to restrict com m unication per se. See, e.g., Veter\xc2\xad\nans and Reservists fo r Peace in Vietnam v. Regional Commissioner, 459\nF.2d 676 (3d Cir.), cert, denied, 409 U.S. 933 (1972) (Trading with the\nEnem y A ct restriction on unauthorized dealings in m erchandise consti\xc2\xad\ntutional although literature within definition of merchandise).\nIII. Conclusion\nO ur thoughts here are necessarily preliminary, and we will continue\nto consider these issues as well as the m ore long-range question o f the\npossible effects of any action touching these types o f communications.\nO ur assessment at this stage, how ever, is, first, that an acceptable\nauthority base for action either through the United Nations o r unilater\xc2\xad\nally can be found and that, second, any action we can hypothesize\ncarries with it significant First Am endm ent problems.\nL\n\narry\n\nA. H\n\nam m ond\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n159\n\n\x0c'


b'Applicability of Emoluments Clause to Proposed\nService of Government Employee on Commission\nof International Historians\nA government employee\xe2\x80\x99s proposed service as a member of a commission o f international\nhistorians established under the auspices of the Austrian government would violate the\nEmoluments Clause of the Constitution, U.S. Const, art. I, \xc2\xa7 9, cl. 8.\n\nJuly 30, 1987\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nA c t in g A r c h iv is t\n\nof the\n\nU n it e d S t a t e s\n\nThis memorandum responds to your request of July 27, 1987, for our views\non the applicability of the Emoluments Clause of the Constitution to proposed\nservice by Mr. A, an employee of the National Archives, as a member of a\ncommission of international historians established to review the wartime record\nof Dr. Kurt Waldheim, President of Austria. According to the information you\nhave provided us, the Commission was established at the request of the Aus\xc2\xad\ntrian government, and is being funded entirely by the Austrian government.\nYou indicate that Mr. A has asked that he be permitted to accept an invitation to\nserve as a member of the commission, extended to him by the commission\xe2\x80\x99s\nco-chairman, in his private capacity. Although you have stated that Mr. A\nwould be entitled to reimbursement of his expenses and an honorarium from\nthe Austrian government, we understand that Mr. A has indicated a willingness\nto forego the honorarium and to rely upon private sources of funding for his\nexpenses.\nAs discussed more fully below, we believe that, in the circumstances as we\nunderstand them, Mr. A\xe2\x80\x99s acceptance of the invitation to serve as a member of\nthe Commission would be inconsistent with the prohibition in the Emoluments\nClause against a federal official\xe2\x80\x99s accepting an \xe2\x80\x9coffice\xe2\x80\x9d from a foreign state.\nArticle I, \xc2\xa7 9, cl. 8 of the Constitution provides:\nNo title of Nobility shall be granted by the United States: And\nno Person holding any Office of Profit or Trust under them,\nshall, without the consent of Congress, accept of any present,\nEmolument, Office, or Title, of any kind whatever, from any\nKing, Prince, or foreign State.\nThe Emoluments Clause, adopted unanimously at the Constitutional Conven\xc2\xad\ntion of 1787, was intended by the Framers to preserve the independence of\nforeign ministers and other officers of the United States from \xe2\x80\x9ccorruption and\n89\n\n\x0cforeign influence.\xe2\x80\x9d 3 M. Farrand, Records o f the Federal Convention o f 1787\n327 (1966) (Farrand). See a lso 2 Farrand, at 327, 389.1 Consistent with its\nexpansive language and underlying purpose, the provision has been interpreted\nas being \xe2\x80\x9cparticularly directed against every kind of influence by foreign\ngovernm ents upon officers of the United States, based upon our historic poli\xc2\xad\ncies as a nation.\xe2\x80\x9d 24 Op. Att\xe2\x80\x99y Gen. 116,117 (1902) (emphasis in original). See\nalso J. Story, Commentaries on the Constitution o f the United States \xc2\xa7 684\n(Carolina Academic Press 1987) (1833 Abridgement) (\xe2\x80\x9cthe provision is highly\nimportant, as it puts out of the power of any officer of the government to wear\nborrowed honours, which shall enhance his supposed importance abroad by a\ntitular dignity at home\xe2\x80\x9d). By its terms, the prohibition is directed not just to\npayments of money of gifts from foreign governments, but also to the accep\xc2\xad\ntance of an \xe2\x80\x9coffice.\xe2\x80\x9d\nThere seems little doubt that Mr. A occupies an \xe2\x80\x9cOffice of Profit or Trust\nunder [the United States]\xe2\x80\x9d as that phrase is used in the Emoluments Clause.2\nAnd the Emoluments Clause is plainly applicable where an official is offered\nthe gift, title or office in his private capacity.3 Moreover, as we understand the\ncircumstances of the Commission\xe2\x80\x99s establishment and funding, it is clear that\nthe invitation in this case came from the Austrian government, itself indisput\xc2\xad\nably a \xe2\x80\x9cforeign state\xe2\x80\x9d under the Emoluments Clause.4\nThe only question as to which there appears to be any issue is whether\nacceptance of membership on the Commission would constitute acceptance of\nan \xe2\x80\x9coffice\xe2\x80\x9d under the Emoluments Clause. We believe that it would.\n1 Farrand reports G overnor Randolph\xe2\x80\x99s explanation o f the Em olum ents C lause at the V irginia Convention\nas follow s:\n[This] restrictio n restrains any perso n s in office from accepting of any present or emolument,\ntitle o r office, from any foreign p rin ce or s ta te .. . . T his restriction is provided to prevent\ncorruption. A ll m en have a natural inherent right o f receiving em olum ents from any one, unless\nthey be restrained by th e regulations o f the com m unity. An accident which actually happened,\no perated in producing the restriction. A box was presented to our am bassador by the king o f our\nallies. It w as thought proper, in o rd er to exclude corruption and foreign influence, to prohibit any\no n e in o ffice from receiving or holding any em olum ents from foreign states I believe, that if at\nth at m om ent, w hen we were in harm ony with the king o f France, w e had supposed that he was\nco rru p tin g o u r am bassador, it m ight have disturbed that confidence, and dim inished that mutual\nfriendship, w hich contributed to carry us through the w ar.\n3 Farrand at 327.\n2 See 21 Op. A tt\xe2\x80\x99y Gen. 219 (1909) (postal clerk holds an office o f profit or trust for Em olum ents Clause\npurposes, because he \xe2\x80\x9cholds h is appointm ent from a head o f a D epartm ent . . . , receives for his services a\nfixed com pensation from m oneys appropriated for the purpose by C ongress, . . . has regularly prescribed\nservices to perform , and his duties are co ntinuing and perm anent, and not occasional and tem porary\xe2\x80\x9d). See\nalso \xe2\x80\x9cA pplication o f Em olum ents Clause to Part-Tim e C onsultant for the N uclear Regulatory Com m ission,\xe2\x80\x9d\n10 Op. O .L.C . 93 (1986) (part-tim e staff consultant for NRC holds a position requiring his undivided loyalty\nto the U nited States).\n3 Cf. \xe2\x80\x9cA ssum ption by P eople\xe2\x80\x99s R epublic o f C hina o f Expenses o f U.S. Delegation,\xe2\x80\x9d 2 Op. O.L.C. 345\n(1978) (E m olum ents C lause does not p rohibit assum ption by the People\xe2\x80\x99s Republic o f C hina of the expenses\no f an official U .S. delegation).\n4 E ven if it could be concluded that the invitation in this case had been extended by an international body,\nwe believe the concerns expressed by the Fram ers in the Em olum ents C lause would still be applicable. In this\nregard, w e note that the Foreign Gifts an d D ecorations Act, by which C ongress gave its express consent for\nofficials to accept gifts from foreign co u n tries under certain limited circum stances, includes within its\ndefin itio n o f \xe2\x80\x9cforeign governm ent\xe2\x80\x9d \xe2\x80\x9cany international or m ultinational organization w hose mem bership is\ncom posed o f any unit o f foreign governm ent.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7342(a)(2)(B )\n\n90\n\n\x0cAlthough we have found no case or other formal precedent directly on point,\nthere are several Attorney General opinions that indicate that a United States\ngovernment official\xe2\x80\x99s acceptance of membership, in a personal capacity, on an\nentity established and funded by a foreign government may violate the Emolu\xc2\xad\nments Clause. In 13 Op. Att\xe2\x80\x99y Gen. 537 (1871), Attorney General Akerman\nconsidered \xe2\x80\x9cwhether an American minister to one foreign power can accept a\ndiplomatic commission to the same power from another foreign power.\xe2\x80\x9d He\nconcluded that:\nUnquestionably, a minister of the United States abroad is not\nprohibited by the Constitution from rendering a friendly service\nto a foreign power, even that of negotiating a treaty for it,\nprovided he does not become an officer of that power. But\nwhatever difficulties may grow out of the vagueness with which\nthis term is defined in the books, it is clear that the acceptance of\na formal commission as minister plenipotentiary creates an offi\xc2\xad\ncial relation between the individual thus commissioned and the\ngovernment which in this way accredits him as its representative.\nId. at 538. See also 6 Op. Att\xe2\x80\x99y Gen. 409 (1854) (United States Marshal for\n\nFlorida could not hold the \xe2\x80\x9coffice\xe2\x80\x9d of Commercial Agent of France).\nWe are advised by the Legal Adviser\xe2\x80\x99s Office of the Department of State that\nit has construed the Emoluments Clause to prohibit a federal official from\naccepting, in a private capacity, appointment to a commission established by a\nforeign government. In 1983, the Legal Adviser informed a member of a\nPresidential advisory committee that his membership on a \xe2\x80\x9cbi-national\xe2\x80\x9d com\xc2\xad\nmission established by the Costa Rican government constituted acceptance of a\nforeign \xe2\x80\x9coffice\xe2\x80\x9d prohibited by the Emoluments Clause, and advised him that he\nmust resign.\nAs a general matter, we believe that a United States government official\xe2\x80\x99s\nmembership on an entity established and funded by a foreign government\nraises serious issues under the Emoluments Clause. In this case, the facts lead\nus to conclude that Mr. A\xe2\x80\x99s membership on the Commission would create the\nkind of \xe2\x80\x9cofficial relation\xe2\x80\x9d between him and the Austrian government that the\nFramers of the Constitution wished to avoid, and that it therefore constitutes an\n\xe2\x80\x9coffice\xe2\x80\x9d under the Emoluments Clause. Accordingly, we believe Mr. A is\nconstitutionally prohibited from accepting the invitation to serve as a member\nof the Austrian Commission.5\nC harles\n\nJ.\n\nC ooper\n\nAssistant Attorney General\nOffice o f Legal Counsel\n5 O ur conclusion in this situation is reinforced by the circum stances surrounding the C om m ission\xe2\x80\x99s creation\nand its m andate. We do not, however, intend o ur conclusion respecting the applicability of the Em olum ents\nC lause to suggest that Mr. A would be subjected to im proper foreign influence, or otherw ise to leave any\nnegative inference respecting the integrity o f the service he would render as a m ember of the C om m ission.\n\n91\n\n\x0c'


b'June 2 3 , 1978\n\n78-36\n\nMEMORANDUM OPINION FOR THE COUNSEL\nTO THE VICE PRESIDENT\nOfficers and Employees\xe2\x80\x94 Volunteers\xe2\x80\x94 Federal Tort\nClaims Act (28 U.S.C. \xc2\xa7 2679(b))\xe2\x80\x94 Operation of\nMotor Vehicles\xe2\x80\x94 Liability\n\nThis is in response to your request for our answers to seven questions\nconcerning liability and insurance coverage for Government employees and\nother persons who use automobiles in connection with the official travel of the\nPresident and Vice President. The vehicles involved may be Governmentowned, leased for the occasion, or privately owned. The persons involved\ninclude:\n\xe2\x80\x94 Regular full-time Government employees.\n\xe2\x80\x94 Individuals who work on an irregular basis and receive compensa\xc2\xad\ntion as consultants and travel and subsistence expense reimbursement.\n\xe2\x80\x94 Individuals who volunteer their time but receive travel and\nsubsistence expense reimbursement.\n\xe2\x80\x94 Individuals who volunteer their time and receive no reimbursement\nfor their expenses.\nVehicles may be rented in the name of the United States or in the name of the\nindividual involved.\nThe seven questions you presented are as follows:\n1. What liability coverage is provided by the Government for its employees?\n2. Which of the above-described \xe2\x80\x9c staff\xe2\x80\x9d are covered by such protection?\n3. Is the coverage the same regardless of the nature of the vehicle involved,\ni.e., Govemment-owned, leased, or privately owned?\n4. In the event that not all of the \xe2\x80\x9c staff\xe2\x80\x9d described are covered by the\nprotection provided for regular Government employees, what are the minimum\nemployment-related steps that must be taken to insure that an individual will be\ncovered?\n5. When renting a car, an option is provided to purchase insurance covering\nthe deductible under the policy carried by the rental agency. Can and should\nthis option be exercised affirmatively when the rental will be paid for with\nGovernment funds?\n145\n\n\x0c6. What is the Government\xe2\x80\x99s responsibility if a person for whom liability\ncoverage is provided by the Government uses the vehicle for a personal frolic\nand an accident occurs?\n7. On those occasions when the trip is a mixed official/political trip, what\neffect is there on the coverage that is provided by the Government?\nI. General Principles\nThe liability of the Government and the individuals involved is governed\nprimarily by the Federal Tort Claims Act, 28 U.S.C. \xc2\xa7 2679(b), which provides\nas follows:\nThe remedy against the United States provided by sections 1346(b)\nand 2672 of this chapter for injury or loss of property or personal\ninjury or death, resulting from the operation by an employee of the\nGovernment of any motor vehicle while acting within the scope of his\noffice or employment, shall hereafter be exclusive of any other civil\naction or proceeding by reason of the same subject matter against the\nemployee or his estate whose act or omission gave rise to the claim.\nThe cited sections provide, with exceptions not relevant here, that the\nGovernment is liable for the negligence of its employees in the same manner as\na private person. Thus, the effect of \xc2\xa7 2679(b) is to make a suit against the\nUnited States under the Federal Tort Claims Act the sole remedy for damages\narising from an automobile accident involving a Government employee acting\nin the course of his employment. See, e.g ., Thompson v. Sanchez, 539 F. (2d)\n955, 958 (3d Cir. 1976); Carr v. United States, 422 F. (2d) 1007, 1009-10 (4th\nCir. 1970). Under the Act, it is the employee\xe2\x80\x99s duty to provide the Department\nof Justice with copies of any pleadings or process in a suit against him and the\nDepartment defends such suits. See 28 U.S.C. \xc2\xa7 2679(c); 28 CFR \xc2\xa7 15.1(a).\nThe protection provided employees by the Act is in lieu of any liability\ninsurance furnished by the United States. The Comptroller General has held\nthat appropriated funds are not available to pay for liability insurance for the\nGovernment or its employees unless a statute expressly so provides. 19 Comp.\nGen. 798 (1940); cf. 42 Comp. Gen. 392 (1963); 22 Comp. Gen. 740 (1943).\nThis holding is based on the view that it is ordinarily cheaper for the United\nStates to self-insure than to purchase insurance. See 19 Comp. Gen. 798\n(1940). The legislative history of \xc2\xa7 2679(b) points out that suit against the\nUnited States was made the exclusive remedy because it is less expensive than\nhaving the Government either carry liability insurance for its drivers or\nreimburse them for their own insurance. See S. Rept. 736, 87th Cong., 1st\nsess., at 2-4 (1961); 107 Cong. Rec. 18499-500 (1961). In the light of the\nlegislative history, we believe that the purchase of liability insurance for\npersons covered by the Act is unnecessary.\nFor the purpose of the Federal Tort Claims Act, an \xe2\x80\x9c employee of the\ngovernment\xe2\x80\x9d is defined, 28 U.S.C. \xc2\xa7 2671, as:\n[0]fficers and employees of any federal agency. . . and persons\nacting on behalf of a federal agency in an official capacity, temporar\xc2\xad\n146\n\n\x0cily or permanently in the service of the United States, whether with or\nwithout compensation.\nThe courts have consistently held that the test of employment under this statute\nis the common law principle of respondeat superior, particularly the \xe2\x80\x9c power to\ncontrol the detailed physical performance of the individual.\xe2\x80\x9d Logue v. United\nStates, 412 U.S. 521, 527-28 (1973); see also, United States v. Becker, 378 F.\n(2d) 319, 321-23 (9th Cir. 1967); Prater v. United States, 357 F. Supp. 1044,\n1045 (N.D. Tex. 1973); Delgado v. Akins, 236 F. Supp. 202 (D. Ariz. 1964);\nMartarano v. United States, 231 F. Supp. 805, 807 (D. Nev. 1964); cf., United\nStates v. Orleans, 425 U.S. 807, 814-15 (.1976). The question of control turns\non the facts of the particular case, and the courts are guided by the criteria set\nforth in Restatement, Agency 2d, \xc2\xa7\xc2\xa7 2(l)-(2), 212. See, e.g., Logue v. United\nStates, supra; Becker v. United States, supra. If the power of detailed\nsupervision over the person exists, he is an employee even though unpaid or\npaid by a third person. See, e.g., Provancial v. United States, 454 F. (2d) 72,\n75 (8th Cir. 1972); Delgado v. Akins, supra; Martarano v. United States,\nsupra. As stated by the court in Martarano, at p. 807:\nThis does not mean, however, that only a person officially on a\nfederal payroll may come within the definition of federal employee.\nThe usual rules of respondeat superior are to be applied. This is quite\nplainly recognized in the statutory definition of employee of the\nGovernment by apt words encompassing persons \xe2\x80\x9c acting on behalf\nof a federal agency, temporarily or permanently,\xe2\x80\x9d whether with or\nwithout compensation.\nII. Specific Questions\nApplying these principles to your questions, our conclusions are as follows:\n1. The United States assumes liability for the negligence of an employee\noperating any motor vehicle in the course of his official duties. Any other\naction against the employee arising out of an automobile accident occurring in\nthe course of his employment is barred.\n2. The status of an individual as full time, part time, paid, or unpaid, does\nnot determine whether he is an \xe2\x80\x9c employee\xe2\x80\x9d of the Government. The\nsignificant fact is whether the Government agency involved has the power to\nexercise detailed supervision and control over the individual\xe2\x80\x99s performance of\nhis duties. Indicia of this power are: setting personal qualifications for the\nindividual; that he is required to perform the services himself; and that he may\nbe discharged by the agency. See, e.g ., Becker v. United States, 378 F. (2d)\n319, 322-23 (9th Cir. 1967); Prater v. United States, 357 F. Supp. 1044, 1045\n(N.D. Tex. 1973); Delgado v. Akins, 236 F. Supp. 202, 203 (D. Ariz. 1964).\nSee generally. Restatement, Agency, 2d \xc2\xa7 220. Under these criteria, we believe\nthat all of the individuals involved here would fall within the Federal Tort\nClaims Act when their official functions on behalf of the Vice President require\nthem to operate a motor vehicle.\n3. Section 2679(b) applies to \xe2\x80\x9c any\xe2\x80\x9d motor vehicle. It has been held to\n147\n\n\x0cinclude privately owned vehicles driven on official business. See, e.g., Levin v.\nTaylor, 446 F. (2d) 770 (D.C. Cir. 1972); Nistendisk v. United States, 225 F.\nSupp. 884 (W.D. Mo. 1964). While we are not aware of any case involving\nrented vehicles, we see no reason why the statute would not apply to them as\nwell.\n4. All of the enumerated individuals are \xe2\x80\x9c employees\xe2\x80\x9d as long as the Office\nof the Vice President has the power of detailed supervision over the perform\xc2\xad\nance of their official duties.\n5. The Act makes the Government liable for both personal injury and\nproperty damage. As noted above, its legislative history indicates that this was\nintended to substitute for the procurement of liability insurance. In view of this\nlegislative history and the Comptroller General\xe2\x80\x99s opinion that specific statutory\nauthority is needed to procure insurance, optional insurance for rented vehicles\nmay not be procured with Government funds.1\n6. The Act makes the Government liable only for accidents that occur when\nan employee is \xe2\x80\x9c acting within the scope of his office or employment.\xe2\x80\x9d The\nscope of employment and the extent to which the Government remains liable\nwhere the employee deviates therefrom is determined by the law of respondeat\nsuperior at the place of the accident. See 28 U.S.C. \xc2\xa7 2674; and, e.g ., Williams\nv. United States, 350 U.S. 857 (1955); Platis v. United States, 409 F. (2d)\n1009 (10th Cir. 1969); Guthrie v. United States, 392 F. (2d) 858 (7th Cir.\n1968). As a general rule, driving would appear to be within the scope of\nemployment \xe2\x80\x9c if the Government\xe2\x80\x99s interest was a substantial factor in the trip.\xe2\x80\x9d\nGuthrie v. United States, supra, 392 F. (2d) at 860; see, Levin v. Taylor, 464\nF. (2d) 770 (D.C. Cir. 1972); United States v. Romiti, 363 F. (2d) 662 (9th Cir.\n1966). See generally, Restatement, Agency 2d, \xc2\xa7 236 and comments, 523.\nHowever, the decisions emphasize that the facts of each particular case are\ncontrolling. E .g., Guthrie v. United States, supra; United States v. Romiti,\nsupra. While we can say as a general rule that the Government would not be\nliable for an accident during a \xe2\x80\x9c frolic\xe2\x80\x9d or \xe2\x80\x9c diversion\xe2\x80\x9d for the personal benefit\nof the driver,2 the application of this rule to any particular incident depends\nboth on the specific facts and the law of the State where the accident may occur.\n7. The liability of the United States is determined not by the nature of the\nPresident\xe2\x80\x99s or Vice President\xe2\x80\x99s travels but rather by the purpose for which the\nemployee in question is driving. In a previous memorandum, we pointed out\nthat even on political trips the President and Vice President require staff and\nassistance to perform their official functions. This, we stated, \xe2\x80\x9c would\nordinarily include full provision for comfort and safety of the party; communi\xc2\xad\ncations facilities for control and administration of the Armed Forces and other\n\n\'W e note that the C om ptroller G eneral perm its the purchase o f casualty or liability insurance on\nleased private property if the ow ner requires it as a condition o f the lease. See 42 Comp. G en. 392\n(1963). T hus, there is no restriction on paying any part o f the rental fee attributable to mandatory\ninsurance.\n2See, e.g.. Van Houten v. Ralls, 411 F. (2d) 940 (9th Cir. 1969); Binn v. United States. 389 F.\nSupp. 988 (E .D . W is. 1975); Tavolieri v. Allain, 222 F. Supp. 756 (D. M ass. 1963). See also H.\nRept. 297, 87th C o n g ., 1st sess., at 4 , 8-9 (1961).\n\n148\n\n\x0cagencies of the Government; clerical, logistical, and other administrative\nsupport; staff assistance in the management of paperwork and the records of\ndecisions; and those staff members, advisers, and other persons who may\nreasonably be required for consultation or advice during the period of travel.\xe2\x80\x9d\nWe believe that driving in relation to these functions is for the benefit of the\nofficial functions of the Vice President, regardless of the reason he is\ntraveling,3 and thus within the scope of a driver\xe2\x80\x99s official duties. However,\nthere has never been any litigation on this point. In view of the case-by-case\napproach the courts take to scope-of-employment questions, we cannot predict\nwhere they would draw the line between official and political functions of\nemployees traveling with the Vice President.\nIII. Additional Comments\nYour memorandum also requested any additional comments we considered\nappropriate. We therefore call your attention to the procedures by which\nemployees receive the protection of the Federal Tort Claims Act. Under 28\nCFR \xc2\xa7 15.1(a), any employee sued for personal injury or property damage on\naccount of his driving a motor vehicle in the scope of his employment must\npromptly deliver all papers and pleadings to his immediate superior or a person\ndesignated by the agency. He must also immediately notify this person by\ntelephone or telegraph. The agency in turn must notify and provide copies of\nthe litigation papers to the United States Attorney for the judicial district in\nwhich the accident occurred and to the Chief, Torts Section, Civil Division, of\nthe Department of Justice.\nUnder 28 CFR \xc2\xa7 15.2(a), the agency must provide the U.S. Attorney and the\nTorts Section with a report \xe2\x80\x9c containing all data bearing on the question whether\nthe employee was acting within the scope of his office or employment\xe2\x80\x9d at the\ntime of the accident.\nThe U.S. Attorney may have a State court suit against an employee removed\nto the Federal district court by certifying that the employee was acting within\nthe scope of his employment, 28 U.S.C. \xc2\xa7 2679(c); 28 CFR \xc2\xa7 15.3(a). If the\ndistrict court determines that the driver was not an employee acting within the\nscope of his employment, the case will be remanded to the State court. See,\ne.g., Binn v. United States, 289 F. Supp. 988 (E.D. Wis. 1975); Tavolieri v.\nAllain, 222 F. Supp. 756 (D. Mass. 1963).\n\n3T he cited m em orandum also states that travel by the Vice President is "p o litic a l\xe2\x80\x9d if its prim ary\npurpose involves his status as a party leader, e.g., fund-raising, cam paigning for particular\ncandidates, and appearing at party functions. T ravel to obtain public confidence and support for the\nm easures o f the A dm inistration, on the other hand, is part o f the official functions o f the Vice\nPresident.\n\n149\n\n\x0cWe suggest that you inform part-time or volunteer drivers of their duty to\nreport suits and to forward the papers in order to obtain the protection of the\nFederal Tort Claims Act. We further suggest that you consult the Torts Section\nabout the form and content of the report required by 28 CFR \xc2\xa7 15.2(a).\nL eo n U\n\nlm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n150\n\n\x0c'


b'Prohibitions and Penalties Under Section 582 of the 1990\nForeign Operations, Export Financing, and Related Programs\nAppropriations Act\nS e c tio n 5 8 2 o f th e 1 9 9 0 F oreign O p e ra tio n s , E x p o r t F in a n c in g , an d R e la te d P ro g ra m s A p p ro \xc2\xad\np r ia tio n s A c t p ro h ib its only th e fo llo w in g : an e x p lic it q u id p ro q u o a rra n g e m e n t p u rs u a n t to\nw h ic h b o th th e U n ite d States a n d a n o th e r g o v e rn m e n t o r p e rso n th a t is to re c e iv e fin a n c ia l\na s s is ta n c e fro m th e U n ite d S ta te s ag re e th a t re c e ip t o f th e a ss is ta n c e is e x p re s s ly c o n d itio n e d\nu p o n th e r e c ip ie n t u n d e rta k in g a n a ctio n th a t th e U n ite d S ta te s w o u ld b e s p e c ific a lly p ro h ib \xc2\xad\nite d b y U n ite d S ta te s law from c a r ry in g o u t.\n\nN e ith e r v io la tio n o f s e c tio n 582, n o r c o n sp ira c y to v io la te s e c tio n 5 8 2 . is p u n is h a b le a s a c rim i\xc2\xad\nn a l o ffe n s e .\n\nApril 16, 1990\nM e m o r a n d u m O p in io n f o r t h e L e g a l A d v is e r\nD e pa r tm en t o f State\n\nThis memorandum responds to your request for our opinion on (1) the\nscope of the prohibition in section 582 of Public Law No. 101-167, 103 Stat.\n1195, 1251 (1989), the Foreign Operations, Export Financing, and Related\nPrograms Appropriations Act, 1990, and (2) whether violation of or con\xc2\xad\nspiracy to violate section 582 is punishable as a criminal offense. We\nconclude, as did your office,1 that section 582 prohibits only an explicit quid\npro quo arrangement pursuant to which both the United States and another\ngovernment or person that is to receive financial assistance from the United\nStates agree that receipt of the assistance is expressly conditioned upon the\nrecipient undertaking an action that the United States would be specifically\nprohibited by United States law from carrying out. As to the second ques\xc2\xad\ntion, we also concur in your conclusion that Congress did not intend to\npunish criminally either violation o f or conspiracy to violate section 582.\nI.\nThe first version of the Foreign Operations, Export Financing, and Re\xc2\xad\nlated Programs Appropriations Act, 1990 (\xe2\x80\x9cthe Act\xe2\x80\x9d) passed by Congress\n1 L e tte r fo r W illia m P. Barr, A ssista n t A ttorney G en eral, O ffice o f Legal C ounsel, from A braham D.\nS o fae r, L e g a l A d v iser, U nited S tates D ep artm en t o f State (Jan. 19, 1990).\n\n84\n\n\x0cwas H.R. 2939, 101st Cong., 1st Sess. (1989). President Bush vetoed that\nmeasure on November 19, 1989, see 2 Pub. Papers of George Bush 1545\n(Nov. 19, 1989), in large part because of constitutional concerns with the\nversion of section 582 that appeared in that Act. Id. Two days later, on\nNovember 21, 1989, Congress passed that Act in its current form, specifi\xc2\xad\ncally to address the A dm inistration\xe2\x80\x99s concerns that had prom pted the\nPresident\xe2\x80\x99s veto. See, e.g., 135 Cong. Rec. S16,332 (daily ed. Nov. 20,\n1989) (statement of Sen. Leahy); id. at H9088 (statement of Rep. Obey).\nSection 582(a) of the Act provides as follows:\nNone of the funds appropriated by this Act may be provided\nto any foreign government (including any instrumentality or\nagency thereof), foreign person, or United States person in\nexchange for that foreign government or person undertaking\nany action which is, if carried out by the United States Gov\xc2\xad\nernment, a United States official or employee, expressly\nprohibited by a provision of United States law.\n103 Stat. at 1251. It is clear from this and the remaining provisions of\nsection 5822 that the section was intended to be only a narrow appropriation\nlimitation, not a criminal prohibition. Congressman Edwards explained the\npurpose of the section in this way:\nWhat we prohibit in this bill is a quid pro quo which would\nallow the money we are appropriating here for the United\nStates\xe2\x80\x99 foreign policy purposes to be provided to another gov\xc2\xad\nernment or person in exchange for that government or person\nagreeing to do something which, if it were done by an Ameri\xc2\xad\ncan citizen or by our Government, would be a violation of\nU.S. law. That is all it does. It prohibits a quid pro quo.\n\n2Section 58 2 (b ) and (c) provides:\n(b) F o r the p u rposes o f this sectio n the term \xe2\x80\x9cfunds ap p ro p riated by th is A ct\xe2\x80\x9d in c lu d e s\nonly (1 ) assistance o f any kind un d er the F oreign A ssistance A ct o f 1961; and (2) cred its,\nand g u aran ties un d er the Arms E x p o rt C ontrol Act.\n(c) N o th in g in th is sectio n sh all be construed to lim it \xe2\x80\x94\n(1 ) the ability o f the President, the Vice P resident, o r any official o r e m ployee o f the\nU nited States to m ake statem en ts or otherw ise express th e ir view s to any party o n any\nsubject;\n(2) the a b ility o f an official o r em ployee o f the U nited States to e xpress the p o lic ie s o f\nthe President; o r\n(3 ) the ability o f an official o r em ployee o f the U nited S tates to com m unicate w ith any\nforeign country g o vernm ent, g ro u p o r individual, either d irectly or thro u g h a third party,\nw ith respect to the p rohibitions o f this section including the reasons fo r such p ro h ib i\xc2\xad\ntio n s, and the a ctio n s, term s, o r c o n d itio n s w hich m ight lead to the rem oval o f the\npro h ib itio n s o f this section.\n103 Stat. a t 1251.\n\n85\n\n\x0c135 Cong. Rec. H9089 (daily ed. Nov. 20, 1989). By its terms, section\n582(a) applies only to funds appropriated by the Act; unlike other similar\nprovisions, section 582 does not purport to restrict in any manner funds that\nare appropriated by other acts.3 Section 582 is further limited by the restric\xc2\xad\ntive definition of \xe2\x80\x9cfunds\xe2\x80\x9d in subsection (b) and the additional interpretive\nrestrictions imposed by subsection (c). Thus, for example, subsection (c) \xe2\x80\x94\ndespite the prohibition in subsection (a) \xe2\x80\x94 explicitly permits an employee\no f the United States to express the view to another government that it should\nundertake an action that would be prohibited by United States law, because\n\xe2\x80\x9cnothing\xe2\x80\x9d in section 582 \xe2\x80\x9cshall be construed to limit the ability of . . . [any]\nemployee o f the United States to . . . express their views to any party on any\nsubject.\xe2\x80\x9d And the restriction extends only through fiscal year 1990.4\nPerhaps the most significant substantive term in the provision is \xe2\x80\x9cin ex\xc2\xad\nchange for\xe2\x80\x9d in subsection (a), and this term was the subject of considerable\ndiscussion in the legislative history. It is evident that this language was\nintended as a significant limitation on what otherwise might be read as\nprohibited under this section.\nSenators Cystine and Rudman engaged in an extended colloquy to clarify\nthe meaning o f the phrase. Senator Rudman explained:\nIt is not Congress\xe2\x80\x99 intent in approving this amendment to cre\xc2\xad\nate a trap for the unwary. Accordingly, there is no intent to\nprohibit the provision of U.S. assistance where, coinciden\xc2\xad\ntally, the recipient undertakes an action that the United States\nitself is prohibited to carry out. Therefore, the words \xe2\x80\x9cin\nexchange for\xe2\x80\x9d in the [section] must be understood to require\nan agreement between the United States and the aid recipient\nunder which, as an express condition for receiving the U.S.\nassistance, the recipient undertakes an action which the United\nStates itself is prohibited to carry out.\n135 Cong. Rec. S 16,363 (daily ed. Nov. 20, 1989).\nNotably, earlier the same day, Senator Kasten had introduced a substitute\nversion o f section 582(a) to clarify that the subsection was only to apply to\n3See, e.g., section 4 0 3 o f Public L a w No. 101 -45, tit. IV, 103 S tat. 97, 128 (19 8 9 ) (\xe2\x80\x9cN o funds a p p ro \xc2\xad\np ria te d u n d e r this A ct o r any other A c t shall be a v ailab le to the B ureau o f A lcohol, T obacco and F ire \xc2\xad\na rm s fo r th e e n fo rc e m e n t\xe2\x80\x9d o f various la w s.); section 303 o f Public L aw No. 98-3 9 6 , 98 Stat. 1369, 1422\n(1 9 8 4 ) ( \xe2\x80\x9cN o n e o f the fu n d s made a v aila b le to the U n ite d States P ostal S ervice u n d e r this A ct or any\nother A ct m ay b e u sed to restructure em p lo y ee c o m p en sation p ractices as in effe c t u n d e r the m ost\nre c e n tly e ffe c tiv e c o lle ctiv e bargaining agreem ent. . . .\xe2\x80\x9d ) (em phasis added).\nA d d itio n a lly , by its te rm s, the sec tio n is violated o n ly w here the specified funds are p rovided and the\nre c ip ie n t g o v e rn m e n t o r person a ctu ally undertakes th e action that w ould be p ro h ib ited u n d e r the law o f\nth e U n ite d S ta te s. T h u s, a request by a U nited States o fficial that the g o vernm ent o r person undertake\nth a t a ctio n is, in itse lf, insufficient to im p licate the pro h ib itio n o f the section.\n\n86\n\n\x0c\xe2\x80\x9can actual quid pro quo,\xe2\x80\x9d \xe2\x80\x9cpursuant to an agreement under which, as an\nexpress condition for receipt of such assistance, the recipient is required to\ntake the prohibited action.\xe2\x80\x9d The proposed amendment provided:\nNone of the funds appropriated for assistance by this Act\nmay be provided to any foreign government (including any\ninstrumentality or agency thereof), foreign person, or United\nStates persons pursuant to an agreement under which, as an\nexpress condition for receipt of such assistance, the recipient\nis required to fund or carry out a military or foreign policy\nactivity which is expressly prohibited by a provision of United\nStates law.\nId. at S I6,361. Following his colloquy with Senator Rudman clarifying that\n\nsection 582(a) as drafted was indeed intended by Congress only to apply to\nsuch a narrow class of circumstances, Senator Kasten withdrew his amend\xc2\xad\nment. Id. at S I6,361-63.\nCongressman Obey, the chairman of the House subcommittee responsible\nfor the Act and one of the drafters of section 582, similarly stated that \xe2\x80\x9cthe\nword \xe2\x80\x98exchange\xe2\x80\x99 should be understood to refer to a direct verbal or written\nagreement.\xe2\x80\x9d Id. at H9231 (daily ed. Nov. 21, 1989). As noted above, Con\xc2\xad\ngressm an E dw ards, the ranking R epublican m em ber of the H ouse\nsubcommittee and another of the drafters of section 582, declared that sec\xc2\xad\ntion 582 was designed to prohibit only quid pro quo arrangements. Id. at\nH9089 (daily ed. Nov. 20, 1989). President Bush in his signing statement\naccompanying the Act also stated:\nI agree with the view expressed on the House and Senate\nfloor that this section is intended only to prohibit \xe2\x80\x9cquid pro\nquo\xe2\x80\x9d transactions \xe2\x80\x94 that is, transactions in which U.S. funds\nare provided to a foreign nation on the express condition that\nthe foreign nation provide specific assistance to a third coun\xc2\xad\ntry, which assistance U.S. officials are expressly prohibited\nfrom providing by U.S. law. As reflected both in Congress\xc2\xad\nman Edwards\xe2\x80\x99 statements and in the explanatory colloquy\nbetween Senators Kasten and Rudman, a \xe2\x80\x9cquid pro quo\xe2\x80\x9d ar\xc2\xad\nrangement requires that both countries understand and agree\nthat U.S. aid will not be provided if the foreign government\ndoes not provide the specific assistance.\nIt is important to note that Section 582 does not affect the\nability of the executive branch to urge any course of action\nupon a foreign government or any third party. In addition, the\nsection applies only where there is a provision of U.S. law\n\n87\n\n\x0cthat \xe2\x80\x9cexpressly prohibits\xe2\x80\x9d the United States Government, or a\nU.S. official or employee, from undertaking a particular ac\xc2\xad\ntion, and thus would not apply to provisions that merely limit\nfunding to undertake such an action.\nIn these and other key respects, Section 582 is substantially\nnarrower than a related provision that prompted my veto of\nH.R. 2939 on November 19, 1989.\n2 Pub. Papers of George Bush 1573-74 (Nov. 21, 1989).\nIt is clear from the foregoing that the term \xe2\x80\x9cin exchange for\xe2\x80\x9d was pur\xc2\xad\nposely chosen to ensure prohibition of only explicit quid pro quo arrangements\npursuant to which both the United States and the recipient nation(s) intend\nand agree, verbally or in writing, that receipt of United States assistance is\nexpressly conditioned upon the recipient undertaking an action that the United\nStates would be specifically prohibited by United States law from carrying\nout. We believe that the section should be interpreted and applied consis\xc2\xad\ntently with this purpose.\n\nII.\nYou also requested our opinion on whether either violation of section 582\nor conspiracy to violate that provision could give rise to criminal penalties.\nWe believe that it is clear that Congress intended that neither violation of nor\nconspiracy to violate the section would be punished criminally.\nSection 582 contains no criminal penalties for its violation, nor does it\nincorporate by reference any penalties existing under criminal (or any other)\nlaw. If Congress had intended to render United States officials \xe2\x80\x94 including\nthe President him self \xe2\x80\x94 potentially criminally liable under the section, it\nmay fairly be assumed that this intention would have been evident from the\nface o f the statute. See, e.g., United States v. Campos-Serrano, 404 U.S.\n293, 297 (1971) (a defendant \xe2\x80\x98\xe2\x80\x9c is not to be subjected to a penalty unless the\nwords of the statute plainly impose it,\xe2\x80\x99\xe2\x80\x9d (quoting Keppel v. Tiffin Savings\nBank, 197 U.S. 356, 362 (1905))). In fact, by Senate amendment, the State\nDepartm ent Authorization Act of FY 1990 that the President vetoed con\xc2\xad\ntained a leveraging provision that had expressly included criminal penalties.5\nThus, there can be little question that when it passed section 582 without\n\ns See H .R . 1487, 101st C o n g ., 1st S ess. \xc2\xa7 109 (1 989). Section 109 w ould have am ended the Foreign\nA ss is ta n c e A c t o f 1961 to provide in p art:\n(a)\nP ro h ib itio n . \xe2\x80\x94 (1 ) W henever any pro v isio n o f U nited States law ex p ressly re fe rs to\nth is sec tio n an d e x p re ssly p rohibits all U nited S tates assistance, or all assistan ce u n d e r a\nC o n tin u ed\n\n88\n\n\x0cproviding for criminal penalties, the Congress purposely chose not to crim i\xc2\xad\nnally punish violations of section 582.\nThis intention is confirmed by the legislative history. Senator Rudman\nstated unequivocally that \xe2\x80\x9c[section 582] does not contain criminal penal\xc2\xad\nties.\xe2\x80\x9d 135 Cong. Rec. S 16,362 (daily ed. Nov. 20, 1989); id. (section 582\n\xe2\x80\x9ccontains no criminal sanctions\xe2\x80\x9d). He observed: \xe2\x80\x9cIf a criminal penalty were\nintended, it would have been provided on the face of the provision. In the\nabsence of such a provision, it should be understood that Congress intends\nthat no criminal penalties will apply to the [section].\xe2\x80\x9d Id. Senator Moynihan\nhad introduced legislation similar to section 582 that would have explicitly\nprovided for criminal penalties. Id. Accordingly, we conclude that Con\xc2\xad\ngress did not intend to, nor did it impose criminal penalties for violation of\nsection 582.6\nThat Congress chose not to criminalize violations of section 582 does not\nnecessarily mean that it did not intend to punish criminally, under 18 U.S.C.\n\xc2\xa7 3 7 1,7 a conspiracy to violate the provision. It is clear also, however, that\n\n\xe2\x80\x99 (....co n tin u ed )\nspecified U nited States assistance account, from being provided to any specified foreign re \xc2\xad\ngion, country, g o vernm ent, group, o r individual for all o r specified a ctivities, then n o o fficer\no r em p lo y ee o f the E x ecu tiv e branch m ay \xe2\x80\x94\n(B ) use any U nited States funds o r facilities to assist any transaction w hereby a foreign\ng o v ernm ent (in clu d in g any in stru m en tality o r agency thereof), foreign person, o r U nited\nStates person p ro v id es any fu n d s o r property to any third party . . . .\nif the pu rp o se o f any such act is the furthering o r carrying out o f the sam e activ ities, w ith\nrespect to that region, country, g o vernm ent, g roup, or individual, for w hich U n ite d States\nassistance is expressly prohibited\n;\n(b) Penalty. \xe2\x80\x94 A ny p erso n w ho know ingly and w illfully v iolates the provision o f subsec\xc2\xad\ntion (a)(1) shall be im p riso n ed not m ore than S years o r fined in accordance w ith title 18.\nU nited S tates C ode, o r both.\nS e n a to r M oy n ih an noted in debate on section 582 that section 109, the e x p licit c rim in al le veraging\nprov isio n , \xe2\x80\x9c is not before us tonight. It is part o f the State D epartm ent authorization bill. Should it not\nb eco m e law in this session . . . w e w ill retu rn to this m atter in the next o n e." 135 C ong. R ec. S I 6,362\n(d a ily ed. Nov. 20, 1989). T h is com m ent, com ing im m ediately after S enator R u d m a n \xe2\x80\x99s statem en t that\nsectio n 582 \xe2\x80\x9cd o es not contain crim inal p enalties,\xe2\x80\x9d w e believe is best u nderstood as S e n a to r M o y n ih a n \'s\nacq u iescen ce in w hat by th a t tim e appeared to be the S e n a te \'s con clu sion th at crim inal p enalties w ould\nnot attach.\n\xe2\x80\x98 C ong ressm an O bey, the principal d raftsm an o f section 582, never stated that violation o f the pro v isio n\nw ould be p u nishable crim inally. Even a fte r attention had been focused on the sp ecific question o f p o s\xc2\xad\nsib le crim inal penalties u n d e r the p rovision, he com m ented only that the provision \xe2\x80\x9c is not an a tte m p t to\nham strin g g o vernm ent o fficials in the course o f their norm al duties o r to m ake them v ulnerable to w a y \xc2\xad\nw ard or runaw ay p ro secu to rs.\xe2\x80\x9d 135 C ong. Rec. H 9 2 3 1 (daily ed. Nov. 2 1 ,1 9 8 9 ).\n\xe2\x80\x99 S ectio n 371 provides:\nIf tw o o r more p erso n s co n sp ire eith e r to co m m it any offense against the U nited States, o r\nto d efrau d the U nited States, o r any agency th e re o f in any m anner or for any purpose, and\none o r m ore persons d o any act to effect the o bject o f the conspiracy, each shall be fined not\nm ore than $10,000 o r im prisoned not m ore than five years, o r both.\nIf, how ever, the offen se, the com m ission o f w hich is the object o f the conspiracy, is a\nm isd em ean o r only, th e punishm ent for such con sp iracy shall not exceed the m axim um p u n \xc2\xad\nishm ent pro v id ed fo r su ch m isdem eanor.\n\n89\n\n\x0cCongress did not intend for the general conspiracy statute to apply to con\xc2\xad\nduct proscribed by section 582. In fact, Congress considered potential\napplicability o f 18 U.S.C. \xc2\xa7 371, and determined that it would not apply to\nviolations of section 582. On November 20, 1989, Senators Kasten and\nRudman specifically discussed on the floor of the Senate the fact that the\ngeneral conspiracy statute would have no applicability to section 582:\nMr. Kasten. I note that section 582 . . . does not provide a\ncriminal penalty for violation of its leveraging prohibition.\nDoes this indicate congressional intent that there be no crimi\xc2\xad\nnal penalty for violation of section 582?\nMr. Rudman. Yes Senator, that is my understanding. If a\ncriminal penalty were intended, it would have been provided\non the face of the provision. In the absence of such a provi\xc2\xad\nsion, it should be understood that Congress intends that no\ncriminal penalties will apply to the [section]. In particular, it\nshould be understood that the criminal conspiracy statute will\nnot apply to the [section].\n\nMr. Kasten. I want the record to reflect that my support for\nsection 582 is conditioned on the clarifications that [the] Sena\xc2\xad\ntor has provided. I could not vote for this bill if I believed\nthat section 582 could provide a basis for criminal liability\n. . . . I know that many Senators on my side of the aisle share\nthis view.\nMr. Rudman. I fully agree with this interpretation of section\n582, and I know that the votes of many Senators are similarly\nconditioned.\n135 Cong. Rec. S16,362-63 (daily ed. Nov. 20, 1989) (emphasis added).\nImmediately afterwards, Senator Dole concurred that section 582 should not\nbe interpreted as giving rise to any criminal penalties:\nWe cannot have lawful, but confident and creative, handling\no f our foreign policy \xe2\x80\x94 if every administration official hereafter\nis always looking over his shoulder to see if some aggressive\nspecial prosecutor \xe2\x80\x94 out to get his name in the headlines \xe2\x80\x94\nmight be concocting some fanciful charge based on vague language.\n\n90\n\n\x0cId. at S 16,363.\xc2\xae Senator Rudman explained the rationale for not imposing\ncriminal penalties:\n\nThe absence of a criminal penalty reflects the fact that the\nleveraging prohibition is to apply across-the-board to essen\xc2\xad\ntially all existing prohibitions on U.S. assistance. Without\nindividually examining these prohibitions to determine whether,\nin the context of each prohibition, a criminal penalty for le\xc2\xad\nveraging would be appropriate, it would be unwise for Congress\nto apply such a penalty across-the-board.\nId.\n\nPresident Bush signed the bill into law on this understanding that neither\nviolation of section 582, nor conspiracy to violate the section, would be\ncriminally punishable:\nConsistent with the expressed intent of the Congress and to\navoid constitutional problems, I intend to construe this sec\xc2\xad\ntion [section 582] narrowly . . . . The Senate record also\nmakes clear that neither the criminal conspiracy statute, nor\nany other criminal penalty, will apply to any violation of this\nsection. My decision to sign this bill is predicated on these\nunderstandings of Section 582.\n2 Pub. Papers of George Bush 1573 (Nov. 21, 1989).9 Thus, there appears to\nhave been consensus agreement that the general conspiracy provisions of 18\n\n\'C o n s is te n t w ith the view that C ongress did not intend v io latio n s of, or conspiracies to vio late sectio n\n5 82 to b e c rim in ally punishable. S en ato r Leahy described sectio n 582 as \xe2\x80\x9ca bipartisan re v isio n [of th e\ne a rlie r version o f sectio n 582 v etoed by P resident B ush] do n e by C o n gressm en O bey a n d E dw ards to\nm ake it m ore accep tab le to the a d m in istratio n .\xe2\x80\x9d 135 C ong. R ec. S16.332 (d a ily ed. N ov. 20, 1989).\nT h e A d m in istratio n had earlier n o tified C ongress that the p re d e ce sso r version o f section 5 8 2 w as u n a c \xc2\xad\nc ep tab le , inter alia , precisely because the th reat o f crim inal p ro secu tions u n d e r that v e rsio n \xe2\x80\x9cw ou ld\ncle arly h av e a negative im pact on the conduct o f foreign re la tio n s.\xe2\x80\x9d L etter fo r C ongressm an Jaim ie L.\nW hitten, C hairm an, H o u se C om m ittee on A ppropriations, from C aro l T. C raw ford, A ssista n t A ttorney\nG e n eral, O ffice o f L eg islativ e A ffairs, at 2 n.2 (Nov. 1, 1989). S en ator D ole had a lso inform ed the\nS en ate, p rio r to p assag e o f the A ct, that \xe2\x80\x9cS en io r W hite H ouse officials have told me th a t they w ould\nadvise the P resid en t to veto the bill unless this m atter [the scope o f section 582, including the q u estion\no f c rim in al penalties] is satisfacto rily clarified ." 135 C ong. R ec. S 16,363 (daily ed. Nov. 20 , 1989).\n\xe2\x80\x99 T he P resid e n t\xe2\x80\x99s c o n stru ctio n o f section 582 in his signing statem en t is particularly im p o rtan t in th is\nco n tex t. T h e P resid en t\xe2\x80\x99s interpretation o f the section c o n stitu tes h is in struction, as head o f the e x e c u \xc2\xad\ntiv e branch , on im plem entation o f the section \xe2\x80\x94 an instru ctio n w ith w hich this D epartm ent, charged\nw ith c rim in a l law enfo rcem ent, m u st comply. C ourts p roperly lo o k to presidential sig n in g statem ents\nto assist in the in terp retatio n o f statutes. See. e.g.. Berry v. Department o f Justice, 7 33 F.2d 1343,\n1349-50 (9 th Cir. 1984).\n\n91\n\n\x0cU.S.C. \xc2\xa7 371 would have no applicability to section 582. Indeed, there is no\nevidence whatever to the contrary.10\nIn U nited States v. Hutto, 256 U.S. 524, 528-29 (1921), the Supreme\nCourt held that a defendant could be indicted for criminal conspiracy to\ncommit an offense against the United States11 even where the predicate of\xc2\xad\nfense was not itself criminally punishable. There, the underlying offense\nwas punishable by a civil penalty. It may be that conspiring to violate any\nfederal law \xe2\x80\x94 even a law that itself contains no criminal or civil penalties\n\xe2\x80\x94 may be criminally punishable under 18 U.S.C. \xc2\xa7 371 as a conspiracy to\ncommit an offense against the United States.12 We need not determine here,\nhowever, the full reach of the principle announced in Hutto. The availability\nof section 371 will always be a question of legislative intent. See, e.g.,\nU nited States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952).\nThus, where, as here, there is affirmative, uncontradicted evidence that Con\xc2\xad\ngress considered the question and intended that criminal penalties under\nsection 371 not be available, that section may not be invoked to impose such\na penalty.13 Accordingly, we conclude that a conspiracy to violate section\n\n10 Compare 42 U .S .C . \xc2\xa7 3795b (explicitly providing th a t the program s and p rojects in that c h a p te r \xe2\x80\x9c shall\nb e su b je c t to th e p ro v isio n s o f section 371 o f Title 18").\n" In H utto, th e d e fe n d an ts were c h a rg e d w ith v io la tio n o f section 37, C rim inal C ode, w hich w as in\nsu b sta n c e id e n tic al to 18 U .S.C . \xc2\xa7 371. S ectio n 37 p ro v id ed : \xe2\x80\x9c If tw o o r more p e rso n s conspire e ith e r to\nc o m m it any o ffen se a g ain st the U nited S ta te s, or to d e fra u d the U n ite d States in any m anner or fo r any\np u rp o se , an d o n e o r m ore o f such p a rtie s d o any act to effect the o b je c t of the conspiracy, each o f the\np a rtie s to su ch c o n sp irac y shall be fined . . . . \xe2\x80\x9d Act o f M ar. 4, 1909, ch. 321, 35 Stat. 1096.\n12 W e h a v e fo u n d no c ase addressing th e validity o f an indictm ent o r c o n viction under sec tio n 371,\nw h e re the c h arg e w as conspiracy to c o m m it an o ffen se against the U nited S tates and the u nderlying\no ffe n se that the d e fe n d an ts allegedly c o n sp ire d to c o m m it did not itse lf carry e ith e r crim inal o r civil\np e n a ltie s.\nH o w ev e r, ev en if o n e c o u ld not be ch arg ed w ith o r convicted o f conspiring to com m it an offense\na g a in st th e U n ite d S ta te s u n d e r these circ u m stan c e s, it still could be that prosecution w ould b e possible\nu n d e r sec tio n 37 1 . S e c tio n 371 also c rim in a liz e s co n sp iracy to d e fra u d the U nited States T h e offense\no f c o n sp ira c y to d e fra u d th e United S ta te s does not seem to depend upon the ex isten ce and c h a ra c te r o f\na se p a ra te s tatu to ry o r o th e r prohibition, as does the o ffen se o f co n sp irin g to co m m it an offense a gainst\nth e U n ite d S tates. See, e.g., Haas v. H enkel, 216 U .S. 4 6 2 . 4 79-80 (1910) (\xe2\x80\x9c [A ]ny conspiracy w hich is\nc a lc u la te d to o b s tru c t o r im pair [a g o v ern m en tal d e p artm e n t\xe2\x80\x99s] o p e ra tio n s and re p o rts as fair, im p artial\nan d re a so n a b ly a cc u ra te w o u ld be to d e fra u d the U n ited States \xe2\x80\x9d); Hammerschmidt v. United States, 265\nU .S . 182, 188 (1 9 2 4 ) (to defraud the U n ite d States \xe2\x80\x9c m ean s p rim arily to cheat the G o v ern m en t ou t o f\np ro p e rty o r m oney, but it a lso means to in terfere w ith o r obstruct o n e o f its law ful g overnm ental fu n c \xc2\xad\ntio n s b y d e ce it, c ra ft o r trickery, or at le a st by m eans th a t are d ish o n est") Several cases have sustained\ne ith e r in d ic tm e n ts o r co n v ictio n s for c o n sp irac y to d e fra u d the U n ite d States w here there w as n o t any\nsp ec ific p ro h ib itio n o f the allegedly frau d u le n t conduct. Haas v. Henkel, 216 U .S. 462 (1910); United\nStates v. Klein, 2 4 7 F.2d 9 0 8 (2d Cir. 1 957), cert, denied, 355 U.S. 9 2 4 (1958); United States v. A nder\xc2\xad\nson, 5 7 9 F.2d 4 5 5 (8th C ir.) (dicta), cert, denied, 439 U .S . 980 (1978).\n,J T h a t C o n g re ss e x p lic itly considered and decided ag ain st the application o f sectio n 371 to conduct\np ro s c rib e d u n d e r sec tio n 5 8 5 d istinguishes the circu m stan ces h erein discussed from those und erly in g\nth e in d ic tm e n t o f O liv e r N orth and o th e rs in United States v. Poindexter, C rim . N o. 88-0 0 8 0 (D .D .C .). \xe2\x96\xa0\nT h a t in d ic tm e n t, w h ile charging a c o n sp irac y to v iolate several c rim in al statutes that them selves c a rry 1\ne x p lic it p e n a ltie s, a lso ch arg ed co n sp irac ie s to v io la te th e so-called B oland A m endm ent, as w ell as\nm o re g e n e ra l p ro h ib itio n s (e.g., co n sp iracy to d efrau d th e U nited S ta te s \xe2\x80\x9cby im p ed in g , im p airin g , d e\xc2\xad\nfe a tin g an d o b s tru c tin g th e lawful g o v ern m en tal fu n ctio n s o f the U nited States, including . . c o n g re s\xc2\xad\nsio n al co n tro l o f ap p ro p riatio n s and e x e rc ise o f o v e rsig h t"). C o n g re ss did not exp licitly c o n sid e r the\na p p lic a tio n o f 18 U .S .C . \xc2\xa7 371 to a lle g e d violations o f the B oland A m endm ent. T here is sim ilarly\nn o th in g to in d ic a te th at C ongress in te n d e d to foreclose application o f section 371 to the m ore general\nc o n sp ira c y v io la tio n s w ith which the d e fe n d an ts w ere charged.\n\n92\n\n\x0c582 would not be punishable under 18 U.S.C. \xc2\xa7 371.14\nThis is not to say that section 582 may be violated with impunity. The\nPresident has a constitutional duty to \xe2\x80\x9ctake Care that the Laws be faithfully\nexecuted.\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 3. Moreover, it can be anticipated that\nCongress will seek to monitor executive branch compliance with the section,\nand that an intentional failure to comply may provoke any of a host of\nconstitutional or political sanctions, if not remedial legislation. The State\nDepartment and other affected executive agencies therefore should, by means\nof appropriate directives, urge compliance with the prohibition.\n\nCONCLUSION\nWe conclude for the reasons set forth above that section 582 prohibits\nonly an explicit quid pro quo arrangement pursuant to which both the United\nStates and another government or person that is to receive financial assis\xc2\xad\ntance from the United States agree that receipt of the assistance is expressly\nconditioned upon the recipient undertaking an action the United States would\nbe specifically prohibited by United States law from undertaking. Addition\xc2\xad\nally, we conclude that neither violation of section 582 of Public Law No.\n101-167, nor conspiracy to violate section 582, is punishable as a criminal\noffense.15\nJ. M ICHAEL LUTTIG\nPrincipal Deputy\nAssistant Attorney General\nOffice o f Legal Counsel\n\n14T h e fact th at sectio n 371 is un av ailab le in this context o f course w ou ld not p re v e n t p ro se cu tio n for\nco n d u ct v iolative o f other crim inal statutes.\n15T he C rim in al D iv isio n o f the D epartm ent o f Justice co n cu rs in these conclusions.\n\n93\n\n\x0c'