b'Applicability of 18 U.S.C. \xc2\xa7 207(c) to President-Elect\xe2\x80\x99s Transition\nTeam\nThe one-yeai bar in 18 U.S.C. \xc2\xa7 207(c), which prohibits certain former government employees from\ncontacting the agencies where they worked, applies to persons who serve on a presidential tran\xc2\xad\nsition team while receiving a salary from a private employer.\nThe bar in 18 U.S.C. \xc2\xa7 207(c) does not apply to members of a presidential transition team who sup\xc2\xad\nport themselves from their own resources or are compensated solely from appropriated funds.\n\nNovember 18, 1988\nL etter fo r t h e D irec to r\nO ffice o f G o v e r n m e n t E th ics\n\nThis responds to your oral request of November 17, 1988, for our views on\nwhether the one year bar prohibiting certain former government employees from\ncontacting their former agency, contained in 18 U.S.C. \xc2\xa7 207(c), applies to for\xc2\xad\nmer government employees who are working for the President-elect\xe2\x80\x99s transition\nteam. Presidential Transition Act (\xe2\x80\x9cAct\xe2\x80\x9d), 3 U.S.C. \xc2\xa7 102 note, as amended by\nPub. L. No. 100-398, 102 Stat. 985 (1988).\nAs you indicated, this is a novel and difficult question given the sui generis\nnature of a presidential transition. It is readily apparent that presidential transi\xc2\xad\ntions serve an important public function. Congress has endorsed their signifi\xc2\xad\ncance, stating, when it set forth the purposes of the Act:\nThe national interest requires that such transitions in the office of\nthe President be accomplished so as to assure continuity in the\nfaithful execution of the laws and in the conduct of the affairs of\nthe Federal Government, both domestic and foreign.\nId. \xc2\xa7 2. We have no doubt that promoting the \xe2\x80\x9corderly transfer of the executive\npower,\xe2\x80\x9d id., is one of the most important public objectives in a democratic society.\nIt does not follow from this that the restrictions of 18 U.S.C. \xc2\xa7 207(c) do not\napply at all to the transition. The conflict of interest laws also advance extremely\nimportant goals, including promoting public confidence in the integrity of the\nfederal government and ensuring that corruption\xe2\x80\x94and opportunities for corrup\xc2\xad\ntion\xe2\x80\x94are minimized. Thus, in evaluating the applicability of section 207(c), we\nbelieve that it is best to examine the actual status of a transition staff member in\nconjunction with the evils that the ethics laws were intended to combat.\nAt one end of the spectrum is the federal employee who is detailed by his\nagency to assist the transition team. He is clearly a federal employee, covered by\nall applicable portions of 18 U.S.C. \xc2\xa7\xc2\xa7 201-209, and obviously his status raises\nno question under section 207(c). The Act specifically refers to such employees\n264\n\n\x0cand emphasizes that their status vis-a-vis the United States does not change while\nthey are working with the transition team. Act, \xc2\xa7 3(a)(2). Based upon this statu\xc2\xad\ntory recognition, we also agree with you that the prohibitions in section 203 and\n205 do not apply to such detailed employees by virtue of the \xe2\x80\x9cofficial duties\xe2\x80\x9d ex\xc2\xad\nception to those provisions.\nAt the other end of the spectrum is an individual who recently occupied a high,\npolicy making position in the executive branch and who is now employed by a\ncompany or law firm in the private sector. If such an individual, while still re\xc2\xad\nceiving his private sector salary, works for the transition team, he typifies the po\xc2\xad\ntential for abuse that we believe that section 207(c) was intended to guard against.\nHe is not compensated by the federal government,1 may not make decisions or\nparticipate in matters on behalf of the United States,2 and his loyalties are not un\xc2\xad\ndivided.3 Because the central purpose of section 207(c) was to preclude for one\nyear a limited class of high-level government employees from contacting their\nformer agencies unless the contact was clearly on behalf of the United States, we\nbelieve such individuals who receive compensation from the private sector for,\nor during, their work for the transition team are not exempt from the fairly ab\xc2\xad\nsolute \xe2\x80\x9cno contact\xe2\x80\x9d rule, merely by virtue of their association with the transition.\nWe therefore believe that such individuals are, notwithstanding their employ\xc2\xad\nment by the transition team, covered by 18 U.S.C. \xc2\xa7 207(c), and barred from con\xc2\xad\ntacting their former department or agency for the statutory period.\nIt is less clear that section 207(c) should apply to those former high-level gov\xc2\xad\nernment officials who have been separated from their agencies less than one year\nwho are either volunteers for the transition team and are supporting themselves\nfrom their own resources or who have severed their ties with private sector em\xc2\xad\nployment and are being compensated solely from funds appropriated under the\nAct. It is much more likely that those former officials who are supporting them\xc2\xad\nselves and are acting solely in the interests of the President-elect4 will not face\nthe divided loyalties at which section 207(c) was aimed.\nThe same argument is true with respect to those whose salaries are paid out of\nappropriated funds: Congress has decided that it is in the interest of the United\nStates (even if the actions of the transition team cannot be precisely said to be on\nbehalf of the United States) that these individuals be paid with federal funds be\xc2\xad\ncause they are advancing a federal interest. Our hesitation to apply section 207(c)\nto transition team members compensated with appropriated funds is bolstered by\nthe fact that the Act was recently amended to provide significant amounts of fund\xc2\xad\n1 The Act also makes clear that such staff members are not federal employees except for limited provisions not\nrelevant here. Act, \xc2\xa7 3(a)(2)\n2 We understand that the proposed Standards of Conduct for a transition worker make it clear that he cannot and\nshould not attempt to interfere with the decision making functions of the agencies.\n3 A clear example would be a former Department of Defense officer who is now working for a defense con\xc2\xad\ntractor or a former Department of Justice official who is now representing companies whose interests would be af\xc2\xad\nfected by decisions of the Department\n4 This would seem to apply with special force to a former government official who had no pnvate sector affili\xc2\xad\nation since leaving government, such as former government employees participating in the political campaign which\nled to the election of the President-elect\n5 Presidential Transitions Effectiveness Act, Pub. L No. 100-398, 102 Stat. 985 (1988).\n\n265\n\n\x0cing for some transition staff members.5 In return for the funding, the President\xc2\xad\nelect must undertake certain steps to minimize the potential for conflicts of in\xc2\xad\nterest with respect to all transition personnel. Act, \xc2\xa7 5(b), as amended. As the\nHouse Report on the recent bill notes:\nOnce again, the unique circumstances of a Presidential transition\nrequire balancing the ability of a new President to conduct tran\xc2\xad\nsition activities as completely and effectively as possible, and in\na manner he desires, with the necessity of maintaining public con\xc2\xad\nfidence . . . .\nH.R. Rep. No. 532, 100th Cong., 2d Sess. 6-7 (1988), reprinted in 1988\nU.S.C.C.A.N. 1372, 1376. Thus, Congress, notwithstanding the fact that these\ncompensated staff members are not generally treated as federal employees, has\nmade it clear that they occupy a unique position and one that is worthy of fed\xc2\xad\neral funding.\nSecond, with respect to both self-supporting and transition team members com\xc2\xad\npensated solely with public funds, we are influenced by the fact that the Crimi\xc2\xad\nnal Division has informally advised us that they would not prosecute such indi\xc2\xad\nviduals under section 207(c) so long as their contacts with their former federal\ndepartments or agencies was only for transition purposes. If those who are charged\nwith the direct enforcement of the objectives that section 207(c) was intended to\nachieve do not believe that those who are self-supporting volunteers or who are\ncompensated solely out of appropriated funds fall outside the scope of section\n207(c), we do not feel compelled to disagree.\nWe would note, in concluding, that former government employees within the\nscope of section 207(c), regardless of their funding source for the transition, may\nutilize the exception in 18 U.S.C. \xc2\xa7 207(i) which permits former employees oth\xc2\xad\nerwise barred by section 207(c) from contacting their former agencies for one\nyear to make or provide a statement to those agencies based on the employees\xe2\x80\x99\nprior special knowledge, provided that no compensation is received. Thus, any\nformer employee could assist the transition by supplying to the transition or his\nformer department or agency for the transition an analysis based on his prior ex\xc2\xad\nperience with and knowledge of his former department or agency, even if the\nconsiderations above preclude that individual\xe2\x80\x99s current contact with his former\ndepartment or agency. Finally, it is of course apparent that section 207(c) does\nnot prevent any covered former employee from contacting departments or agen\xc2\xad\ncies other than the one by which he was formerly employed.\nD o u g l a s W . K m ie c\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n266\n\n\x0c'


b'Suspension of a United States Marshal\n\nW ith th e p rio r ap p ro v a l o f th e P resid e n t, the A tto rn e y G e n e ra l m ay s u sp e n d a U n ite d S ta te s M arsh a l\nw ith o u t pay.\n\nD u rin g the p e rio d o f a U n ite d S tates M arsh a l\xe2\x80\x99s s u sp e n sio n , the A tto rn e y G e n eral m ay d e sig n a te an\nA c tin g U n ited S ta te s M arsh a l to carry o u t the d u tie s o f th e o ffice.\n\nSeptem ber 23, 1993\n\nM e m o r a n d u m O p in io n f o r t h e\nA s s o c ia t e D e p u t y A t t o r n e y G e n e r a l\n\nThis memorandum will confirm oral advice, given to the Deputy Attorney Gen\xc2\xad\neral and to the M arshals Service, that the Attorney General has the power to sus\xc2\xad\npend a United States Marshal without pay, with the President\xe2\x80\x99s prior approval. She\nmay also designate an Acting United States Marshal during the period o f the\nUnited States M arshal\xe2\x80\x99s suspension.\nThis Office has concluded repeatedly that the Attorney General may suspend a\nUnited States Marshal without pay, provided that she has the prior approval o f the\nPresident.1 The President\xe2\x80\x99s power to appoint a United States Marshal entails the\npower to remove him. See 28 U.S.C. \xc2\xa7 561(c), (d); Myers v. United States, 272\nU.S. 52, 122 (1926); Carey v. United States, 132 F. Supp. 218, 220 (Ct. Cl. 1955).\nThe President\xe2\x80\x99s removal power includes \xe2\x80\x9cthe lesser power to place one upon tem\xc2\xad\nporary leave without pay as incidental to the power to appoint and dism iss.\xe2\x80\x9d Id. at\n220; see 2 Op. O.L.C. 107 (1978) (opining that the President has the exclusive\npower to impose suspension and other discipline upon his appointees). In Carey,\nthe court held that the President could authorize the Attorney General to suspend\nwithout pay a United States Attorney who was under investigation for allegedly\nsoliciting a bribe. 132 F. Supp. at 222. As this Office has noted, \xe2\x80\x9c[i]t is hardly\nnecessary to say that the court would have arrived at the same conclusion if a\nUnited States Marshal had been the official under investigation.\xe2\x80\x9d Harmon M em o\xc2\xad\nrandum I at 1. We have also indicated that Carey applies equally to a suspension\n1 Se e M em orandum for the A ttorney G eneral, from T heodore B O lson, A ssistant A ttorney G eneral, O ffice o f Legal Counsel, Re S uspension o j U nited S ta tes A tto rn eys (Sept 25, 1984) (\xe2\x80\x99\xe2\x80\x98O lson M em orandum \xe2\x80\x9d );\nM em orandum for Paul R M ichel, A cu n g D eputy A ttorney G eneral, from John M H arm on, A ssistant A tto r\xc2\xad\nney G eneral, O ffice o f Legal C ounsel, R e S uspension o j a U n ited States A tto rn ey or U n ite d S ta te s M a rsh a l\nw ithout p a x (Jan 14, 1980) (\xe2\x80\x9c H arm on M em orandum II\xe2\x80\x9d ); M em orandum for Paul R M ichel, A cting D eputy\nA ttorney G eneral, from John M H arm on, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, Re. S u sp en sion o j a U nited States A tto rn ey or U nited States M a rsh a l w ith o u t p a y (Jan 7, 1980) (\xe2\x80\x9c H arm on M em o ran \xc2\xad\ndum I\xe2\x80\x9d ); M em orandum for W illiam J. Brady, Jr , A ssistant to the D eputy A ttorney G eneral, from N orbert A.\nSchlei, A ssistant A ttorney G eneral, O ffice o f Legal Counsel, R e P ow er o j A ttorney G e n era l to su sp e n d a\nU nited States A ttorney (A ug 14, 1964).\n\n75\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nwithout pay imposed as a disciplinary measure after investigation. Harmon M em o\xc2\xad\nrandum II at 1.\nIn this case, we understand that suspension without pay would be imposed upon\na United States M arshal preparatory to the President\xe2\x80\x99s removal o f him from office.\nWe think that such a suspension would be well within the President\xe2\x80\x99s power as an\naction \xe2\x80\x9cincidental\xe2\x80\x9d to a removal. T h e Attorney General may take this step on be\xc2\xad\nhalf o f the President, with the President\xe2\x80\x99s prior approval. See Carey, 132 F. Supp.\nat 220, 222. The President, however, must undertake the actual removal of the\nUnited States Marshal. See Presidential Succession and Delegation in Case o f\nDisability, 5 Op. O .L.C. 91, 94 (1981) (opining that President may not delegate his\npow er to remove purely executive presidential appointees).\nA fter the United States Marshal has been suspended, we believe that the Attor\xc2\xad\nney G eneral may appoint someone to act in his stead, pursuant to her broad\nauthority to \xe2\x80\x9cmake such provisions as [s]he considers appropriate authorizing the\nperform ance by any other officer, em ployee, or agency o f the Department of Jus\xc2\xad\ntice o f any function o f the Attorney General.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 5 1 0 ; see 28 U.S.C.\n\xc2\xa7 509 (providing that all functions o f the Departm ent, with certain exceptions not\nrelevant here, are vested in the A ttorney General); 28 C.F.R. \xc2\xa7 0.132(e) (1993)\n(\xe2\x80\x9c[T]he Attorney General may designate any official in the Department to act as\nhead o f a unit whose head is absent or disabled.\xe2\x80\x9d); see also Olson Memorandum at\n2-3.2\n\nRICHARD L. SHIFFRIN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n" B ecau se there w ill not be a vacancy in th e office until the U nited Slates M arshal has been rem oved by\nthe President, the pro v isio n s that govern filling a vacancy w ould not apply. See 28 U S.C. I) 562, 28 C .F R.\nSO 132(d)\n\n76\n\n\x0c'


b"December 27, 1979\n\n79-89\n\nMEMORANDUM OPINION FOR THE DEPUTY\nASSISTANT ATTORNEY GENERAL, LAND\nAND NATURAL RESOURCES DIVISION\nNaval Petroleum Reserves (10 U.S.C. \xc2\xa7 7426)\xe2\x80\x94\nSettlement of United States v. Standard Oil Co. o f\nCalifornia (9th Cir. No. 78-1565)\n\nThis responds to your request for our opinion whether 10 U.S.C. \xc2\xa7 7426\nprecludes a settlement o f the above-captioned case, in which Standard Oil\nCo. o f California (Standard) would be guaranteed current receipt o f more\nthan its percentage share o f oil from Naval Petroleum Reserve No. 1 at\nElk Hills, Kern County, California, (the Elk Hills reserve), during the\npresent period o f maximum production. We concluded in an earlier\nmemorandum that the statute would bar such a settlement. We now con\xc2\xad\nfirm our earlier conclusions.\nI.\n\nBackground\n\nYour inquiry arises in the context o f settlement negotiations between the\nUnited States and Standard over the terms for including within the Elk\nHills reserve certain land adjoining the reserve. That land had been devel\xc2\xad\noped independently by Standard before the United States sought, and was\ngranted, an injunction against independent production pending deter\xc2\xad\nmination o f the terms and conditions for including the land within the\nreserve. The Secretary o f the Navy concluded that Standard should receive\nan am ount o f oil as compensation for including the land in the reserve, but\nthat this am ount should not be received until the expiration o f the present\nperiod o f maximum production o f the reserve (authorized for 6 years by\nTitle II o f the Naval Petroleum Reserves Production Act o f 1976, Pub. L.\nNo. 94-258, 90 Stat. 303, 307, 10 U .S.C . \xc2\xa7 7422(c)(1)(B)). The U.S.\ndistrict court, on November 4, 1977, ruled that Navy\xe2\x80\x99s determination that\nthe land should be included within the reserve was binding on Standard\nand that the proposed terms and conditions were fair and equitable.\nStandard appealed that decision, and oral argument before the U.S. Court\no f Appeals for the Ninth Circuit was held in September, 1979.\n482\n\n\x0cThe present issue concerns the legality of settlement terms under con\xc2\xad\nsideration that would, inter alia, guarantee to Standard receipt currently\nof an amount o f oil that would exceed the share o f oil to which it is entitled\non the basis o f its ownership interest in the reserve. After inclusion in the\nreserve o f the land o f concern here, the United States would own some\n80 percent o f the oil in the producing zone, and Standard would own some\n20 percent. The question presented is thus whether \xc2\xa7 7426 bars Standard,\nin circumstances of maximum production, from receiving currently more\nthan 20 percent of the zone\xe2\x80\x99s production and, therefore, bars any settle\xc2\xad\nment that would surpass the 20 percent figure.\nII.\n\nDiscussion\n\nThe Act o f June 17, 1944, 58 Stat. 280, authorized the United States and\nStandard to enter into a unit plan contract for the development o f naval\npetroleum reserves, including the one at Elk Hills. To protect the interests\no f the United States, Congress provided that any unit plan contract must\nrequire that the United States be assured of receipt currently of its share o f\nthe total production. The pertinent provision is as follows:\nA ny contract entered into pursuant to the authority granted in\nthe preceding paragraph for joint, unit, or other cooperative\nplan o f exploration, prospecting, conservation, development,\nuse, or operation shall require that the United States be assured\no f receipt currently o f its share o f the total production from each\no f the various commercially productive zones underlying all\nlands covered by the contract as determined from time to time on\nthe basis o f estimates o f its original share o f the quantities o f re\xc2\xad\ncoverable oil, gas, natural gasoline and associated hydrocarbons\nin such zones underlying such lands on the date fixed in such con\xc2\xad\ntract: Provided, however, That any party to such a contract,\nother than the United States may, pursuant to the authority\nhereinabove granted to use and operate the reserves for their pro\xc2\xad\ntection, conservation, maintenance and testing, be perm itted\nunder the terms o f such contract to have produced and to receive\nand shall have charged to its share in the total production from\nany zone or zones such quantities o f petroleum as are necessary\nto compensate it\xe2\x80\x94\n(a) fo r its share o f the current expenses o f protecting, con\xc2\xad\nserving, testing and maintaining in good oil-field condition\nsuch lands and the wells and improvements thereon, and its\nreal and personal taxes levied o r assessed thereon; and\n(b) fo r surrendering control o f the rate o f production from\nits lands: Provided, That if the Secretary o f the Navy is not\nthen causing petroleum to be produced pursuant to a joint\nresolution as referred to in the preceding paragraph, the q u an \xc2\xad\ntity o f petroleum determined to be produced under this subparagraph (b) may, in the absolute discretion o f the Secretary,\nbe terminated or reduced at any time on reasonable notice.\n483\n\n\x0cSuch quantities permitted to be produced pursuant to the forego\xc2\xad\ning subparagraphs (a) and (b) shall in no event, however, exceed\none-third o f its share o f the estimated recoverable petroleum on\nsuch date fixed in such contract shall be entered into without\nprior consultation in regard to all its details with the Naval Af\xc2\xad\nfairs Committees o f the Congress.1 [Emphasis added.]\nThe statutory requirement that the United States shall \xe2\x80\x9c be assured of\nreceipt currently o f its share o f the total production from each o f the\nvarious commercially productive zones underlying all lands covered by the\ncontract\xe2\x80\x9d on its face would preclude a settlement in a period o f maximum\nproduction that would permit Standard to receive currently more than its\nshare o f total production in the zone. For if Standard were guaranteed\nsuch receipt, then the United States could not be assured of receipt cur\xc2\xad\nrently o f its full share o f the total maximum production.\nIn response, Standard argues that the current receipt principle does not\ngovern absolutely because the statute includes the proviso that any party\nother than the United States may be permitted to receive oil as necessary to\ncompensate it for its share o f current expenses and taxes, and for sur\xc2\xad\nrendering control o f the rate o f production. Standard contends that the\nproviso carves out two broad exceptions to the current receipt principle.\nThus, if, in a hypothetical case, 100 barrels per day are produced from\nzone X in a period o f maximum production, and if 10 barrels would com\xc2\xad\npensate Standard for current expenses and taxes and 10 additional barrels\nwould compensate Standard for surrendering control over the rate o f pro\xc2\xad\nduction, then, Standard contends, only 80 barrels must be divided cur\xc2\xad\nrently between Standard and the United States in accordance with their\nrespective ownership shares.\nThe first problem with this interpretation is that the current receipt prin\xc2\xad\nciple is stated in unam biguous language providing that each contract must\nguarantee \xe2\x80\x9c that the United States be assured o f receipt currently o f its\nshare o f the total production from each o f the various commercially pro\xc2\xad\nductive zones underlying all lands covered by the contract * * * .\xe2\x80\x9d [Em\xc2\xad\nphasis added.] Standard seeks to add a gloss to the statute that in effect\nwould nullify Congress\xe2\x80\x99 use o f the word \xe2\x80\x9c to tal.\xe2\x80\x9d\n\n'58 Stat. 280, 281. This provision was codified in 1956 at 10 U .S.C . \xc2\xa7 7426(b), (c) and (d).\nThe legislative history o f the 1956 codification makes it plain that no substantive change in\nthe 1944 statute was intended. See Report o f the House Judiciary Com mittee on the revision\no f title 10, U.S. C ode, Arm ed Forces, and title 32, U .S. Code, National G uard, H. Rept.\n970, 84th C ong., 2d sess. 19, reprinted at 1956 U.S. Code Cong. & Admin. News 4613, 4620\n( \xe2\x80\x9c [tjhe object o f the new titles has been to restate existing law, not to m ake new law. C on\xc2\xad\nsistently with the general plan o f the U nited States Code, the pertinent provisions o f law have\nbeen freely reworded and rearranged, subject to every precaution against disturbing existing\nrights, privileges, duties, or functions\xe2\x80\x9d ); see also the Senate Judiciary Com mittee Report, S.\nRept. 2484, 84th C ong., 2d sess., reprinted at id. 4632, 4640. See generally, Muniz v. H off\xc2\xad\nman, 422 U .S. 454 472-74 (1975); Tidewater Oil Co. v. United States, 409 U.S. 151, 162\n(1972); Fourco Glass Co. v. Transmirra Products Corp., 353 U .S. 222, 227 (1957).\n\n484\n\n\x0cAlso, in a period o f maximum production, to allow Standard to receive\ncurrently, in addition to its percentage share am ounts o f oil, both for costs\nand taxes and for surrendering control over the rate o f production would\nbe most unusual. Ordinarily, it is expected that an oil producer will meet\nits operating expenses by selling what it owns, and that it will not receive\nan increment in addition to what it owns in order to pay such expenses.\nStandard implicitly suggests that Congress did not accept that normal\nunderstanding. In view o f the statute\xe2\x80\x99s plain language, we are necessarily\nreluctant to reach such a result.\nStandard relies primarily on a passage in the report o f the House Com \xc2\xad\nmittee on Naval Affairs, H. Rept. 1529, 78th Cong., 2d sess. 11-12 (1944),\nwhich speaks o f \xe2\x80\x9c two permissible exceptions\xe2\x80\x9d to the current receipt prin\xc2\xad\nciple in the following terms:\nThe basic principles sought to be embodied in the foregoing new\nsecond paragraph are that any joint, unit, or cooperative con\xc2\xad\ntract with respect to reserve No. 1 must provide, first, that the\nquestion o f drainage be solved by means o f the ultimate receipt\nby the United States o f its proper share o f the oil underlying the\nlands covered by the contract on the date fixed in the contract,\nand, second, that the United States receive currently its proper\nshare o f the oil as it is produced from the lands covered by the\ncontract. To this second principle, however, there are two per\xc2\xad\nmissible exceptions: One is that a private party to the contract\nmay produce, receive, and have charged to its share in the total\noil in the field sufficient oil to reimburse it for its share o f the\nfield-maintenance expenses and the real and personal property\ntaxes levied against it in respect o f its lands and the im\xc2\xad\nprovements thereon; the other is that a private party to the con\xc2\xad\ntract may have a right to have produced and to receive and have\ncharged to its share in the total oil in the field an agreed am ount\no f oil representing one o f the considerations moving to it for its\nagreement under the contract to surrender to Navy control over\nthe rate o f production from its lands.\nIt is to be particularly noted that the oil which the contract\nmay call fo r to be produced and allotted in accordance with the\ntwo exceptions is expressly referred to in the new second\nparagraph as produced under the authority, contained in the first\nparagraph and discussed above, fo r the use and operation o f the\nreserves fo r their protection, conservation, maintenance, and\ntesting. The theory behind this approach is that the contract is\nentered into for the main purpose o f securing protection by the\nelimination o f drainage and the enhancement o f conservation by\nthe acquisition o f control over the time and rate o f production\nfrom the private lands. Accordingly, the production provided for\nunder paragraphs (d) and (0 o f section 5 o f the proposed unit\nplan contract with Standard does not depend upon any finding\n485\n\n\x0co f need for national defense purposes nor any joint resolution o f the C on\xc2\xad\ngress. Rather, it is produced under the authority o f the protecting pow er\nand represents an allowance o f a part o f Standard\xe2\x80\x99s share o f the oil to\nStandard within the terms o f the exceptions denominated (a) and (b) in the\nnew second paragraph o f the act. [Emphasis added.]\nTo understand the foregoing passage, it must be recognized that the\nstatute contem plated two different situations concerning production of\nthe Reserves: \xe2\x80\x9c shut-in\xe2\x80\x9d periods during which only enough oil to maintain\nthe Reserves would be produced, and \xe2\x80\x9c open-up\xe2\x80\x9d periods during which\nfuller production would be required to meet needs o f national defense2 In\nthe former situation, there would be a need to protect the interests o f an\nentity in S tandard\xe2\x80\x99s position by guaranteeing it sufficient production to\nmeet its current expenses and taxes and compensate it for surrendering\ncontrol over the rate o f production. As noted in the foregoing passage\nfrom the House Committee report, oil produced \xe2\x80\x9c in accordance with the\ntwo exceptions is * * * produced under the authority * * * for the use\nand operation o f the reserves for their protection, conservation,\nmaintenance, and testing\xe2\x80\x9d \xe2\x80\x94that is under the authority o f a shut-in\nperiod. The fact that the current receipt principle has \xe2\x80\x9c two permissible\nexceptions\xe2\x80\x9d in such a period does not determine the result in the pres\xc2\xad\nent case, for the reserve is in a period o f \xe2\x80\x9c open-up,\xe2\x80\x9d or maximum,\nproduction.\nIn our view, the \xe2\x80\x9c two permissible exceptions\xe2\x80\x9d language in the House\nCommittee report merely confirms that, in a shut-in period in which pro\xc2\xad\nduction otherwise would likely be so low as to make it impossible to com\xc2\xad\npensate Standard for current costs and taxes and for surrendering control\nover the rate o f production, Standard is protected by an authorization of\n\n!As stated in the Report o f the House Com m ittee on Naval Affairs, H. Rept. 1529, 78th\nC ong., 2d sess. 6-7 (1944):\nIt is to be noted that the clause as so am ended contem plates two separate situations when\noil may be produced from the reserves. The first is for a protective purpose, the existing\npower being continued but with the clarifying words \xe2\x80\x98conservation, m aintenance, and\ntesting\xe2\x80\x99 added in order to m ake it clear that this power to produce includes production\nwhich will contribute to over-all conservation in the ground and also production for\nproper field m aintenance * * * . It is the intention o f the bill that the Secretary in his\ndiscretion and w ithout the necessity o f further congressional authorization than is pro\xc2\xad\nvided by this provision o f the act itself, may produce oil or cause oil to be produced\xe2\x80\x94\nfor the protection, conservation, m aintenance, and testing o f the aforesaid\nreserves * * * .\nThe second situation in which oil may be produced under the am ended clause is\xe2\x80\x94\nwhenever and to the extent the Secretary, with the approval o f the President, finds re\xc2\xad\nquired for the national defense * * * .\nIn this case, however, the bill provides that there shall be no production pursuant to such\na finding unless and until the Congress shall first have authorized it by joint resolution.\n\n486\n\n\x0cproduction sufficient for those needs.3 As Chairman Vinson, the A ct\xe2\x80\x99s\nprincipal draftsman, stated:\nWhen the war needs cease to exist, then the fields will be shut\ndown, except for the protection o f the field and to enable Stand\xc2\xad\nard to produce enough to earn its taxes out o f the reserve, and to\npay for giving up control over all o f its lands.4\nHowever, a different situation is presented when the reserve is in a period\nof maximum production. In such a circumstance, the legislative history\nconfirms the conclusion, based on the statute\xe2\x80\x99s language, that Congress\nexpected that the United States would receive currently its percentage\nshare o f oil from the reserve. Assistant Secretary o f the Navy Bard\ntestified to this effect before the Senate Committee on Naval Affairs\nshortly before the Congress passed the 1944 Act:\nI think I can explain so that you get the whole picture perhaps.\nThe Navy will produce oil for war purposes, it never will produce\nexcept for an emergency. It wants to keep its oil in the ground.\nWhen it is producing f o r war purposes, the scheme is to divide\nthe oil between Navy and Standard in the ratios o f their interests\nin the oil in the ground, that is, 64 percent and 36 percent. W hen\nit is not producing for war purposes, the Navy produces nothing.\nAll production then is to cover the costs o f Standard and their\ntaxes plus a certain am ount o f oil, subject to the discretion o f the\nSecretary, to compensate them for turning over all control o f\ntheir property to the Navy.s [Emphasis added.]\nAccordingly, Congress understood that, in an open-up situation, the cur\xc2\xad\nrent receipt principle governs. However, in a shut-in period, Standard\ncould receive more oil than the United States on a current basis for ex\xc2\xad\npenses, taxes, and surrendering control over the rate o f production; the\nUnited States would simply conserve its current share in the ground.6\n\n\xe2\x80\x99There are two statutory qualifications on S tandard\xe2\x80\x99s receipt o f oil for costs and taxes and\nfor compensation in a shut-in situation. First, in order to protect the G overnm ent\xe2\x80\x99s interest\no f preserving oil in the ground, the Secretary was provided ultimate discretion in such a\nperiod to reduce or even to term inate the flow o f oil to Standard as com pensation for sur\xc2\xad\nrendering control over the rate o f production. Second, Standard could not receive over time\nmore than one-third o f its total recoverable oil in a zone for current costs and taxes and for\ncompensation in order that the bulk o f S tandard\xe2\x80\x99s oil and Navy\xe2\x80\x99s oil would be preserved in\nthe ground.\n\xe2\x80\x98Naval Petroleum Reserves, Hearing before the Com mittee on Naval Affairs, United\nStates Senate, on S. 1773, 78th Cong., 2d sess. 13 (1944); see also S. Rept. 948, 78th C ong.,\n2d sess. 4 (1944).\n\xe2\x80\x99Naval Petroleum Reserves, Hearing before the Committee on Naval Affairs, United\nStates Senate, on S. 1773, 78th C ong., 2d sess. 19 (1944).\n\xe2\x80\x98The United States would still be assured o f receiving currently its percentage share should\nthat become necessary.\n\n487\n\n\x0cIn sum, on the basis o f the statute\xe2\x80\x99s plain language and its legislative\nhistory, we cannot accept S tandard\xe2\x80\x99s interpretation. Section 7426 does bar\na settlement under which, in a period o f maximum production, Standard\nwould be guaranteed receipt o f more than its percentage share o f oil from\nNaval Petroleum Reserve No. 1.\xe2\x80\x99\nL a r r y L. S imms\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x99In response to S tandard's suggestion that it is unfair to limit it to its percentage share o f\noil in the present open-up period, we note that such a contention is underm ined by the district\ncourt\xe2\x80\x99s finding in this case that \xe2\x80\x9c the term s offered by the Navy were \xe2\x80\x98fair and equitable.\xe2\x80\x99 \xe2\x80\x9d\nMem orandum Opinion o f Novem ber 4, 1977, 4.\n\n488\n\n\x0c"


b"Whether the President May Have Access to Grand Jury\nMaterial in the Course of Exercising His Authority to\nGrant Pardons\nThe P resident, in th e ex ercise o f his pardon authonty and responsibilities under A rticle II, Section\n2, C lau se 1 o f th e C onstitution, may request that the P ardon A ttorney include grand jury inform a\xc2\xad\ntion in any recom m endation the A ttorney m ay make in connection with a pardon application if\nthe P resident determ ines that his need fo r such inform ation in considering that application o ut\xc2\xad\nw eighs th e confid en tiality interests em bodied in Rule 6(e) o f the Federal Rules o f Crim inal P roce\xc2\xad\ndure.\nThe p ro h ib itio n in R u le 6(e) cannot constitutionally be applied to prevent the P resident from obtaining\ngrand ju ry inform ation already in the possession o f the executive branch when the President d eter\xc2\xad\nm ines th at, for pu rp o ses o f making a clem ency decision, his need for that inform ation outw eighs\nthe co n fid en tiality interests embodied in R u le 6(e).\n\nDecember 22, 2000\nM\n\nem orandum\n\nO p in io n\n\nfo r th e\n\nP a r d o n A tto rn ey\n\nYou have requested our opinion concerning the permissibility of attorneys\xe2\x80\x99 in\nthe Department of Justice disclosing grand jury information to the President for\nhis use in evaluating an application for clemency. You would like to have access\nto such information and be able to disclose it to the President in the course of\nmaking a pardon recommendation to him. Specifically, you cite an applicant\xe2\x80\x99s\nalleged peijury before a grand jury as an example of grand jury information that\nwould be material to your evaluation and recommendation to the President con\xc2\xad\ncerning a clemency application, particularly where that peijury is related to the\nfacts and circumstances of the offense for which clemency is sought.\nWe conclude that the President, in the exercise of his pardon authority and\nresponsibilities under Article II, Section 2, Clause 1 of the United States Constitu\xc2\xad\ntion, may request that you include such information in any recommendation you\nmake in connection with a pardon application if he determines that his need for\nsuch information in considering that application outweighs the confidentiality\ninterests embodied in Rule 6(e) o f the Federal Rules of Criminal Procedure. In\nlight of such a request, Department of Justice attorneys may disclose relevant\ngrand jury material to you and, ultimately, to the President.\nRule 6(e), which has the force o f law pursuant to 28 U.S.C. \xc2\xa7\xc2\xa72072, 2074\n(1994), governs the recording and disclosure o f grand jury proceedings. As part\nof establishing these procedures, Rule 6(e)(2) sets forth a \xe2\x80\x9c General Rule of\nSecrecy\xe2\x80\x9d providing that certain persons, including attorneys for the Government,\n\xe2\x80\x9c shall not disclose matters occurring before the grand jury, except as otherwise\nprovided for in these rules.\xe2\x80\x9d Under this rule, no attorney for the Department of\nJustice may disclose \xe2\x80\x9c matters occurring before the grand jury\xe2\x80\x9d to any other per\xc2\xad\nson, unless one of the rule\xe2\x80\x99s enumerated exceptions applies.1 None of the excep\xc2\xad\n1For the exceptions provided for in the rule, see Fed R. Cnm. P. 6(e)(3)(A)-(E).\n\n366\n\n\x0cWhether the President May Have Access to Grand Jury Material in the Course o f Exercising His\nAuthority to Grant Pardons\n\ntions enumerated in Rule 6(e) would appear to apply to this situation.2 Neverthe\xc2\xad\nless, we conclude that this prohibition cannot constitutionally be applied to prevent\nthe President from obtaining information already in the possession of the executive\nbranch when the President determines that, for purposes of making a clemency\ndecision, his need for that information outweighs the confidentiality interests\nembodied in Rule 6(e).\nWe have previously concluded that, apart from Rule 6(e)\xe2\x80\x99s enumerated excep\xc2\xad\ntions to its prohibition against disclosure of grand jury material, the disclosure\nof such material to the President could in some circumstances be authorized on\nbroader constitutional grounds. See Disclosure o f Grand Jury Matters to the P resi\xc2\xad\ndent and Other Officials, 17 Op. O.L.C. 59, 65-69 (1993); Disclosure o f Grand\nJury M aterial to the Intelligence Community, 21 Op. O.L.C. 159, 172-75 (1997)\n( \xe2\x80\x9c Shiffrin Memorandum\xe2\x80\x9d ). Cf. Sharing Title III Electronic Surveillance M aterial\nwith the Intelligence Community, 24 Op. O.L.C. 262, 274-76 (2000), (Title III\ninformation may be disclosed to President where it is of overriding importance\nto national security or foreign relations and necessary for discharge of President\xe2\x80\x99s\nconstitutional responsibilities over these matters). Our 1993 memorandum con\xc2\xad\ncerned the question whether, and under what circumstances or conditions, the\nAttorney General may disclose grand jury material covered by Rule 6(e) in\nbriefings presented to the President and other members of the National Security\nCouncil. The 1997 Shiffrin Memorandum concerned the permissibility of prosecu\xc2\xad\ntors\xe2\x80\x99 in the Department of Justice disclosing grand jury information to agencies\nin the intelligence community for certain official purposes. In both opinions, we\nconsidered the President\xe2\x80\x99s broad Article II responsibility to \xe2\x80\x9c take Care that the\nLaws be faithfully executed,\xe2\x80\x9d U.S. Const, art. II, \xc2\xa73, and, in particular, his con\xc2\xad\nstitutionally based responsibilities for national defense and foreign affairs. We con\xc2\xad\ncluded that, in rare circumstances, these Article II responsibilities may independ\xc2\xad\nently justify the disclosure of pertinent grand jury information to him and certain\nof his advisors. Cf. Craig v. United States, 131 F.3d 99, 103 (2d Cir. 1997) (recog\xc2\xad\nnizing exceptions to Rule 6(e) beyond those enumerated in the rule).\nIn the context of the question presented by you, we are concerned with a specifi\xc2\xad\ncally enumerated and exclusive constitutional presidential power \xe2\x80\x94 the President\xe2\x80\x99s\npower to grant pardons under Article II, Section 2, Clause 1 of the United States\nConstitution. The Constitution provides that the President \xe2\x80\x9c shall have Power to\n2 We are unable to conclude lhat providing the President with grand jury material for the purpose of making\na fully informed decision on a clemency matter falls within Rule 6(e)(3)(A)(n)\xe2\x80\x99s exception permitting disclosure\nto such government personnel \xe2\x80\x9c as are deemed necessary by an attorney for the government to assist an attorney\nfor the government in the performance o f such attorney\xe2\x80\x99s duty to enforce federal criminal law.\xe2\x80\x9d The information\nbeing provided to you and the President is for the purpose of assisting the President in exercising his pardon power\ndiscretion, which we view as entirely distinct from the Department o f Justice\xe2\x80\x99s execution and enforcement of the\ncnminal laws o f the United States Nor can we conclude that Rule 6(e)(3)(C)(i)\xe2\x80\x99s exception permitting the distnct\ncourt to direct disclosure \xe2\x80\x9c preliminary to or in connection with a judicial proceeding\xe2\x80\x9d is applicable here. C f In\nre Petition to Inspect and Copy Grand Jury Materials, 735 F 2 d 1261, 1271 (11th Cir. 1984) (although judicial\ninvestigating committee\xe2\x80\x99s consideration o f complaint against Article 111 judge was similar to a judicial proceeding\ncovered by Rule 6(e)(3)(C)(i), that exception did not apply).\n\n367\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\ngrant Reprieves and Pardons for Offenses against the United States, in the Course\nof Exercising His Authority to Grant Pardonsexcept in Cases of Impeachment.\xe2\x80\x9d\nU.S. Const, art. II, \xc2\xa7 2, cl. 1. The assignment of the pardon power to the President\nalone was the product of a considered decision by the Framers. Before making\nthat choice, the Framers debated, and rejected, possible limitations on the Presi\xc2\xad\ndent\xe2\x80\x99s authority to grant pardons. A proposal to restrict the President\xe2\x80\x99s pardon\npower by requiring consent of the Senate to pardon decisions was soundly\ndefeated. See 2 Max Farrand, The Records o f the Federal Convention o f 1787\nat 419 (rev. ed. 1966). Similarly, in considering the more modest proposal of\ndenying the President the authority to grant pardons in \xe2\x80\x9c cases of treason,\xe2\x80\x9d\nGouvemeur Morris and James Wilson argued that the pardon power should be\nleft with the Executive and not the Legislature. See id. at 626. Rufus King likewise\nasserted that he \xe2\x80\x9c thought it would be inconsistent with the Constitutional separa\xc2\xad\ntion of the Executive and Legislative powers to let the prerogative be exercised\nby the latter.\xe2\x80\x9d Id. In response, James Madison \xe2\x80\x9c admitted the force of [the] objec\xc2\xad\ntions to the Legislature,\xe2\x80\x9d but argued that treason presented a special case. Id.\nat 627. In the end, even this more limited motion failed by a vote of 8 to 2.\nId. In The Federalist No. 74, Alexander Hamilton explained the value of leaving\nthe pardon power exclusively to the President: \xe2\x80\x9c As the sense of responsibility\nis always strongest, in proportion as it is undivided, it may be inferred that a\nsingle man would be most ready to attend to the force of those motives which\nmight plead for a mitigation of the rigor of the law, and least apt to yield to\nconsiderations which were calculated to shelter a fit object of its vengeance.\xe2\x80\x9d\nThe F ederalist P apers at 447-48 (Clinton Rossiter ed., 1961).\nThe Supreme Court\xe2\x80\x99s decisions recognize that the pardon power is different\nfrom many other presidential powers in that it is textually committed exclusively\nto the President. See United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871)\n(\xe2\x80\x9c [t]o the executive alone is intrusted the power of pardon\xe2\x80\x9d ); see also Public\nCitizen v. D epartm ent o f Justice, 491 U.S. 440, 485 (1989) (Kennedy, J., concur\xc2\xad\nring) (noting that pardon power is \xe2\x80\x9c commit[ted] . . . to the exclusive control\nof the President\xe2\x80\x9d ). The Court has explained that:\nThe power thus conferred is unlimited, with the exception [of\nimpeachments]. It extends to every offence known to the law, and\nmay be exercised at any time after its commission, either before\nlegal proceedings are taken, or during their pendency, or after\nconviction and judgment. This power of the President is not subject\nto legislative control. Congress can neither limit the effect of his\npardon, nor exclude from its exercise any class of offenders. The\nbenign prerogative of mercy reposed in him cannot be fettered by\nany legislative restrictions.\n368\n\n\x0cWhether the President May Have Access to Grand Jury Material in the Course o f Exercising His\nAuthority to Grant Pardons\n\nEx Parte Garland , 71 U.S. (4 Wall.) 333, 380 (1866). Since the pardoning power\n\nis an \xe2\x80\x9c enumerated power\xe2\x80\x9d of the Constitution, \xe2\x80\x9c its limitations, if any, must be\nfound in the Constitution itself,\xe2\x80\x9d Schick v. Reed, 419 U.S. 256, 267 (1974), and\nthe President\xe2\x80\x99s pardon power \xe2\x80\x9c cannot be modified, abridged, or diminished by\nthe Congress,\xe2\x80\x9d id. at 266. The Court has repeatedly affirmed this principle that\nthe President\xe2\x80\x99s pardon power must be left unfettered and is not subject to congres\xc2\xad\nsional encroachment. See, e.g., id. at 266 (pardon power \xe2\x80\x9c flows from the Constitu\xc2\xad\ntion alone, not from any legislative enactments\xe2\x80\x9d and \xe2\x80\x9c cannot be modified,\nabridged, or diminished by the Congress\xe2\x80\x9d ); Ex parte Grossman, 267 U.S. 87,\n120 (1925) ( \xe2\x80\x9c The executive can reprieve or pardon all offenses . . . without\nmodification or regulation by Congress.\xe2\x80\x9d ); see also Vincent v. Schlesinger, 388\nF. Supp. 370, 374 (D.D.C. 1975) (Congress cannot subject pardon process to the\nprocedural requirements of the Administrative Procedure Act).\nBecause the President\xe2\x80\x99s pardon authority is plenary, statutes that seek to impose\nwhat may seem to be only minor incursions on the President\xe2\x80\x99s discretion are\nunconstitutional. See Grossman, 267 U.S. at 121 ( \xe2\x80\x9c [W]hoever is to make [the\npardon power] useful must have fu ll discretion to exercise it. . . . Our Constitu\xc2\xad\ntion confers this discretion on the highest officer in the nation in confidence that\nhe will not abuse it.\xe2\x80\x9d ) (emphasis added); Schick, 419 U.S. at 263 ( \xe2\x80\x9c [T]he\ndraftsmen of [the pardon clause] spoke in terms of a \xe2\x80\x98prerogative\xe2\x80\x99 of the President,\nwhich ought not be \xe2\x80\x98fettered or embarrassed.\xe2\x80\x99 \xe2\x80\x9d ) (quoting The Federalist No. 74\n(Alexander Hamilton)).3 Even statutes of general application are invalid as applied\nif, in a particular application, they serve no purpose other than that of regulating\nthe exercise of an exclusive presidential power. In Public Citizen, the Supreme\nCourt addressed whether the Federal Advisory Committee Act (\xe2\x80\x9c FACA\xe2\x80\x9d ), which\nrequires, among other things, that advisory committee minutes, records, and\nreports be open to the public, applies to consultations between the Department\nof Justice and the American Bar Association (\xe2\x80\x9c ABA\xe2\x80\x9d ) concerning potential\njudicial nominees. 491 U.S. at 443-45. FACA did not purport to regulate directly\nthe manner in which the President exercised his exclusive constitutional power\nto nominate judges or to regulate any aspect of the content of the Department\xe2\x80\x99s\nadvice to the President concerning potential judicial nominees. Nonetheless, the\ndistrict court concluded that opening consultations between the Department and\nan outside advisory group to the public \xe2\x80\x9c infringed unduly on the President\xe2\x80\x99s\nArticle II power to nominate federal judges,\xe2\x80\x9d a finding that prompted the majority\nof the Court to interpret the statute not to apply to the Department\xe2\x80\x99s consultations\nwith the ABA so as to avoid the \xe2\x80\x9c serious constitutional problems\xe2\x80\x9d raised by\na contrary interpretation. Id. at 466-67. Justice Kennedy\xe2\x80\x99s opinion concurring in\n3 The Court has likewise recognized that the Judiciary cannot constrain the exercise of the pardon power This\nprinciple is illustrated by the Court\xe2\x80\x99s decision in Grossman In that case, the Court upheld the President\xe2\x80\x99s right\nto pardon an individual for a cnminal contempt o f court despite the argument that extending the President\xe2\x80\x99s pardon\npower to a judicially imposed contempt o f court would violate the constitutionally mandated separation of executive\nand judicial powers because the contempt power is so indispensable to a judge 267 U S at 120-21.\n\n369\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nthe judgment, which was joined by C hief Justice Rehnquist and Justice O \xe2\x80\x99Connor,\nreached the constitutional issue and concluded that FACA\xe2\x80\x99s procedural require\xc2\xad\nments could not apply to the President\xe2\x80\x99s nomination power because \xe2\x80\x9c [n]o role\nwhatsoever is given either to the Senate or to Congress as a whole in the process\nof choosing the person who will be nominated for appointment.\xe2\x80\x9d Id. at 483 (Ken\xc2\xad\nnedy, J., concurring). Citing the C ourt\xe2\x80\x99s cases on the pardon power, Justice Ken\xc2\xad\nnedy stated: \xe2\x80\x9c [W]here the Constitution by explicit text commits the power at issue\nto the exclusive control of the President, we have refused to tolerate any intrusion\nby the Legislative Branch.\xe2\x80\x9d Id. at 485.\nRule 6(e), of course, is a rule o f general application that is neither intended\nnor designed to regulate or affect the President\xe2\x80\x99s pardon power. Instead, the rule\nserves broad interests in regulating the secrecy o f grand jury proceedings.4 Even\nas applied to the exercise of the President\xe2\x80\x99s pardon power, moreover, Rule 6(e)\ncontinues to serve these interests, and thus application of the rule in a way that\nincidently affects the President\xe2\x80\x99s pardon power, unlike application of FACA to\nthe nominations process, cannot be said to serve no purpose other than that of\nregulating the exercise of an exclusive presidential power.\nNevertheless, it is equally true that application of Rule 6(e) in this context con\xc2\xad\nflicts with the President\xe2\x80\x99s interest in having access to information that is legiti\xc2\xad\nmately in the possession of his subordinates and relevant to the exercise of his\nconstitutionally enumerated and exclusive pardon power. In such a case, it is\nappropriate to resolve this conflict through a balancing approach that asks:\nwhether the statute at issue prevents the President \xe2\x80\x9c \xe2\x80\x98from accom\xc2\xad\nplishing [his] constitutionally assigned functions,\xe2\x80\x99 \xe2\x80\x9d and whether\nthe extent of the intrusion on the President\xe2\x80\x99s powers \xe2\x80\x9c is justified\nby an overriding need to promote objectives within the constitu\xc2\xad\ntional authority of Congress.\xe2\x80\x9d\nPublic Citizen, 491 U.S. at 484\xe2\x80\x9485 (Kennedy, J., concurring) (quoting Morrison\nv. Olson, 487 U.S. 654, 695 (1988), quoting Nixon v. Administrator o f General\nServices, 433 U.S. 425, 443 (1977)).s\n\nIn performing such a balancing o f interests, it is important to keep in mind\nthat the factors bearing on the President\xe2\x80\x99s decision to exercise his pardon power,\nas an act o f mercy, are subjective and undefined. See Letter from Daniel Lyons,\nPardon Attorney, to Senator Styles Brides (Jan. 10, 1952) (\xe2\x80\x9c In the exercise of\n4 Cf. United Slates v. Sells Engineering, 463 U .S. 418, 424\xe2\x80\x9425 (1983) (recognizing that the grand jury is a constitu\xc2\xad\ntionally \xe2\x80\x9c enshrined\xe2\x80\x9d \xe2\x80\x9c instrument o f justice in o u r system o f cnm inal law,\xe2\x80\x9d and that the secrecy of its proceedings\nis cntical to furthenng its purposes).\n5 On the other hand, where Congress purports to regulate an exclusive, constitutionally enumerated presidential\npower, or where general law applies in an area in which Congress has no constitutional interest of its own, the\nPresident\xe2\x80\x99s interest is given p n o n ty without a need to engage m a balancing of interests since the Constitution\nentrusts to the President alone the decision to exercise that pow er See Public Citizen, 491 U.S. at 484-85 (Kennedy,\nJ. concurring) ( \xe2\x80\x9c [W ]here the Constitution by explicit text commits the power at issue to the exclusive control of\nthe President, [the Supreme Court has] refused to tolerate any intrusion by the Legislative Branch.\xe2\x80\x9d ).\n\n370\n\n\x0cWhether the President M ay Have Access to Grand Jury Material in the Course o f Exercising His\nAuthority to Grant Pardons\n\nhis pardoning power, the President is amenable only to the dictates of his own\nconscience, unhampered and uncontrolled by any person or branch of Govern\xc2\xad\nment\xe2\x80\x9d ). Moreover, \xe2\x80\x9c the very essence of the pardoning power is to treat each\ncase individually.\xe2\x80\x9d Schick, 419 U.S. at 265.6 Where the President has to make\na pardon judgment, information concerning alleged peijury before a grand jury\nby an applicant may be material to the President\xe2\x80\x99s evaluation of that applicant\xe2\x80\x99s\ncharacter and circumstances. Confronted with evidence that a person committed\npeijury before a grand jury, the President might conclude that the person should\nnot be pardoned for committing a different offense because that person is a \xe2\x80\x9c fit\nobject of [the law\xe2\x80\x99s] vengeance\xe2\x80\x9d and undeserving of mercy. The Federalist No.\n74, at 448. By restricting the President\xe2\x80\x99s access to information already in the\npossession of the Executive Branch that he considers relevant to a pardon decision,\nRule 6(e) effectively prevents the President from accomplishing his constitu\xc2\xad\ntionally assigned function by depriving him of information that he has determined\nhe needs to discharge that function.\nSuch an interference with the discharge of an exclusive constitutional preroga\xc2\xad\ntive is not justified by any \xe2\x80\x9c overriding need to promote objectives within the\nconstitutional authority of Congress.\xe2\x80\x9d Public Citizen, 491 U.S. at 484-85. The\nSupreme Court has identified \xe2\x80\x9c several distinct interests served by safeguarding\nthe confidentiality of grand jury proceedings.\xe2\x80\x9d Douglas Oil Co. v. Petrol Stops\nNorthwest, 441 U.S. 211, 218-19 (1979). Those interests are:\nFirst, if preindictment proceedings were made public, many\nprospective witnesses would be hesitant to come forward volun\xc2\xad\ntarily, knowing that those against whom they testify would be aware\nof,that testimony. Moreover, witnesses who appeared before the\ngrand jury would be less likely to testify fully and frankly, as they\nwould be open to retribution as well as to inducements. There also\nwould be the risk that those about to be indicted would flee, or\nwould try to influence individual grand jurors to vote against indict\xc2\xad\nment. Finally, by preserving the secrecy of the proceedings, we\nassure that persons who are accused but exonerated by the grand\njury will not be held up to public ridicule.\nId. at 219.\n\nThe Court has also recognized, however, that \xe2\x80\x9c the concerns that underlie the\npolicy of grand jury secrecy are implicated to a much lesser extent when the\ndisclosure merely involves Government attorneys.\xe2\x80\x9d . United States v. John Doe,\nInc. I, 481 U.S. 102, 112 (1987); see also Sells Engineering, 463 U.S. at 445\n6 O f course, the intensely subjective nature o f a pardon decision does not mean that the President could choose,\nin his discretion, to grant pardons, for example, in exchange for cash payments The remedy for such a misuse\nof the power would be removal from office after impeachment and conviction for treason, bribery, or other high\ncrimes and misdemeanors U.S Const art. II, \xc2\xa74\n\n371\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\n( \xe2\x80\x9c Nothing in D ouglas Oil, however, requires a district court to pretend that there\nare no differences between governmental bodies and private parties.\xe2\x80\x9d ). That point\nis particularly pertinent here. Because the President and the Department of Justice\nhave traditionally treated the Department\xe2\x80\x99s deliberations in connection with a\npardon recommendation as confidential, see Letter from Janet Reno, Attorney\nGeneral, to The President at 3 (Sept. 16, 1999) (detailing Department\xe2\x80\x99s practice\nof declining to recognize congressional right to compel disclosure of pardon mate\xc2\xad\nrials), any disclosure of material protected by Rule 6(e) to the President and those\nassisting him in the exercise of his pardon power is likely to have, at most, a\nminimal effect on grand jury secrecy because the dissemination will be so limited.7\nThe balance of competing constitutional interests, therefore, weighs heavily in\nfavor of the President. Accordingly, because application of Rule 6(e) in accord\xc2\xad\nance with its plain terms could, in this context, unduly fetter or abridge the Presi\xc2\xad\ndent\xe2\x80\x99s exercise of his exclusive constitutional authority to pardon, it should be\nread to be \xe2\x80\x9c subject to an implied exception in deference to such presidential\npowers.\xe2\x80\x9d R ainbow Navigation, Inc. v. D e p \xe2\x80\x99t o f the Navy, 783 F.2d 1072, 1078\n(D.C. Cir. 1986) (Scalia, J.).\nInvocation of this exception, however, presents certain practical difficulties.\nAlthough the President may consider information concerning an applicant\xe2\x80\x99s pos\xc2\xad\nsible peijury before a grand jury to be relevant to the exercise of his pardon power,\nhe will not know that such information exists until it is brought to his attention.\nRule 6(e), however, prohibits prosecutors from sharing such information with your\noffice because it only permits a prosecutor to share grand jury material with other\nDepartment of Justice attorneys for the purpose of assisting them in enforcing\nfederal criminal law, see Sells Engineering, 463 U.S. at 428, and, as noted above,\nsharing such information with Department attorneys who assist the President in\nthe exercise of his pardon power is not a disclosure made in aid of federal law\nenforcement. See supra, note 2. Moreover, due to the intrinsically subjective\nnature o f the President\xe2\x80\x99s pardon decision, it is difficult for anyone other than the\nPresident to assess the materiality of information to the exercise of his pardon\nauthority. Therefore, absent a request by the President, a prosecutor should not\ndisclose grand jury material to the President, or to your office on behalf of the\nPresident, based on his or her own assumption that the President\xe2\x80\x99s need for such\ninformation outweighs the interests of grand jury secrecy.\nThe President may, we believe, avoid this apparent conundrum by issuing a\nstanding request for certain grand jury material, to the extent it exists, relating\nto particular issues that he deems relevant to his pardon decisions. That standing\nrequest may also provide that prosecutors are permitted to share such grand jury\nmaterial with identified Department of Justice officials (such as the Attorney Gen7 In this regard, as highly sensitive material, w e advise that all reasonable precautions be taken to safeguard the\nconfidentiality o f this material and to ensure that it is shared only with those who require access to it in order\nto advise the President on pardon matters\n\n372\n\n\x0cWhether the President May Have Access to Grand Jury Material in the Course o f Exercising His\nAuthority to Grant Pardons\n\neral or Deputy Attorney General, in consultation with the Pardon Attorney) for\nthe purpose of having them make the preliminary determination whether the grand\njury information is sufficiently relevant to the pardon decision to warrant its being\nprovided to the President. Any such standing directive, however, should be care\xc2\xad\nfully written to make clear that disclosures of grand jury material should not be\nroutine, but rather should be made only when certain factors indicate the existence\nof material relevant to the President\xe2\x80\x99s decisionmaking process. These procedures\nwill help insure that such disclosures fall within the category of material that the\nPresident has specified as being relevant to his decisionmaking process. Alter\xc2\xad\nnatively, disclosure might be authorized on a case-by-case basis as deemed appro\xc2\xad\npriate by the President.\nWe have concluded in past opinions that, when disclosure of grand jury material\nis made to the President pursuant to Article II of the Constitution rather than\nRule 6(e), prior judicial approval of such disclosure is not constitutionally\nrequired. 17 Op. O.L.C. at 68; 21 Op. O.L.C. at 174-75. Similarly, the requirement\ncontained in Rule 6(e)(3)(B), that the court supervising the grand jury must be\nnotified of the names of the people to whom a disclosure was made, does not\napply to constitutionally sanctioned disclosures made outside the context of Rule\n6(e). Id. These same principles apply to any disclosures made under a directive\nfrom the President for grand jury materials he deems relevant to his pardon\ndecisions because such a directive would also rest on the President\xe2\x80\x99s exercise of\nan Article II power.8\nRANDOLPH D. MOSS\nAssistant Attorney General\nOffice o f Legal Counsel\n8 In considering disclosure to the President of grand jury material on the basis of non-exclusive constitutional\nauthonty, we have noted that the risk o f constitutional confrontation could be minimized by seeking the approval\nof the distnct court that impaneled the grand jury, invoking the court's inherent authonty to disclose grand jury\nmaterials for reasons other than those specified in Rule 6(e) 21 Op O.L C. at 175 See also Craig v. United States,\n131 F.3d 99, 103 (2d Cir 1997) (district court has discretion to go beyond exceptions listed in Rule 6(e) to determine\nwhether special circumstances exist), In re Petition to Inspect and Copy Grand Jury Materials, 735 F 2 d 1261,\n1268 (11th Cir 1984) (distnct court can fashion alternative method for disclosure under its general supervisory\nauthority over grand jury proceedings and records) C f Letter to Michael Shaheen, Special Counsel/Project Manager,\nDepartment of the Treasury Internal Revenue Service Cnm inal Investigation Division Review, from Enc H Holder,\nJ r , Deputy Attorney General, Re: Review o f CID Grand Jury Procedures (Feb. 12, 1999) (recommending seeking\ncourt orders authonzing the review of the activities of the Criminal Investigative Division), Memorandum for Michael\nShaheen, Jr., Counsel, Office o f Professional Responsibility, from Robert B Shanks, Deputy Assistant Attorney\nGeneral, Office o f Legal Counsel, Re Disclosure o f Grand Jury Material to the Office o f Professional Responsibility\n(Jan. 6, 1984) (recommending seeking court review for disclosure o f grand jury matenal to OPR pursuant to Rule\n6(e) for use in investigating charges that prosecutors have engaged in misconduct) Here, however, due to the intnnsically subjective nature of the President\xe2\x80\x99s pardon decision, we question whether a court could appropnately assess\nthe matenality o f information to the exercise o f his pardon authonty Moreover, as previously discussed, the President\nand the Department o f Justice have traditionally treated the Department\xe2\x80\x99s deliberations in connection with a pardon\nrecommendation as confidential. See Letter from Janet Reno, supra, at 3. Accordingly, we believe that the prudential\nrule of seeking court approval for the release o f material protected by Rule 6(e) would not apply here, since seeking\ncourt approval would necessitate revealing an aspect of departmental or presidential deliberations in connection with\na pending pardon application to individuals beyond those the President deems necessary to advise him regarding\nthe exercise o f his constitutional prerogative\n\n373\n\n\x0c\x0c"


b'Authorization for Publication and Advice\non Copyright Protection for a Manuscript\nPrepared by a Department of Justice Employee\nThe key inquiry in determ ining the application o f 28 C.F.R. \xc2\xa7 45.73512, which governs publica\xc2\xad\ntion o f a m anuscript by a Department of Justice employee, is whether the m anuscript was\nprepared as a part or the employee\xe2\x80\x99s official duties, is devoted substantially to the responsi\xc2\xad\nbilities and operations o f the Departm ent, or is otherw ise dependent on information obtained\nas a result o f governm ent employment.\nThe m anuscript at issue, which was prepared by an em ployee of the Bureau of Prisons, is\nsufficiently related to the employee\xe2\x80\x99s official duties as to prohibit remuneration for publica\xc2\xad\ntion under 28 C.F.R. \xc2\xa7 45.735-12(a). The Deputy Attorney General may authorize publica\xc2\xad\ntion w ithout rem uneration under 28 C.F.R. \xc2\xa7 45.7 3 5 -1 2(c) if it is determined that publication\nis in the public interest.\nA lthough a decision on whether the m anuscript in question may be copyrighted can only be made\nby the R egister o f Copyrights, it appears doubtful that the Register would grant copyright\nprotection. The m anuscript would probably be viewed as a \xe2\x80\x9cwork of the United States\nG overnm ent,\xe2\x80\x9d because the work w as prepared by a government em ployee as part of his\nofficial duties. Such works may not be copyrighted under the Copyright Act, 17 U.S.C. \xc2\xa7 105.\n\nJanuary 24, 1983\nM\n\nem orandum\n\nO p in io n\n\nfo r the\n\nA s s o c ia t e A t t o r n e y G e n e r a l\n\nThis responds to your request for our advice regarding authorization for\npublication and copyright protection of a manuscript setting forth the results of\na study on aggression in federal prisons prepared by Mr. A, an employee of the\nBureau of Prisons. As we understand the facts surrounding the preparation of\nthis manuscript, we believe that authorization for publication, without a fee,\nshould be granted based on the recommendation by the Director of the Bureau\nthat publication of the study is in the public interest. The copyright issue raises\nmore difficult questions, because a substantial portion of the manuscript was\nprepared by Government employees during the course of their official duties.\nBased on the limited facts presented to us, we doubt whether Mr. A\xe2\x80\x99s manu\xc2\xad\nscript may be copyrighted, but ultimately that determination must be made by\nthe Register of Copyrights at the Library of Congress.\nI. Facts\nThe manuscript which Mr. A seeks to publish and copyright records the\nresults of a study, developed and analyzed primarily by three Bureau of Prisons\n16\n\n\x0cemployees over a period of several years. The study was initiated in response to\na perceived need within the Bureau for a better understanding of, and greater\ninsight into, an identified aspect of inmate behavior in the Federal Prison\nSystem. The manuscript runs approximately 400 pages in length, and includes\nextensive tables, models, graphs, and sample questionnaires, as well as narra\xc2\xad\ntive analyses and a twelve-page Executive Summary of the longer manuscript\nprepared for a 1980 Warden\xe2\x80\x99s Conference. The introduction to the manuscript\nsets forth the goals of the Federal Prison System Project, under which the data\nwas gathered and analyzed, as \xe2\x80\x9cproviding useful information to administrators\xe2\x80\x9d\nand \xe2\x80\x9cproducing data that will interest students of the Criminal Justice System.\xe2\x80\x9d\nThis perception was stimulated by, inter alia, a 1976 study of assaults at the\nLewisberg Penitentiary, which showed that 5 out of 8 homicides occurring\nwithin the 26-month period studied were related to a particular aspect of\ninmate behavior, and a 1977 finding that such behavior is the primary motive\nfor prison homicides and leads to other especially violent acts. Mr. A stated that\nbecause of the increasingly apparent lack of, and need for, comparative infor\xc2\xad\nmation regarding these findings, the Federal Prison System\xe2\x80\x99s Office of Re\xc2\xad\nsearch recommended the establishment of a national project to establish rates\nof this behavior.\nThe study was conducted and the manuscript prepared over a period of\napproximately two years by Mr. A and his co-author, Mr. B, another employee\nat the Bureau. Both Mr. A and Mr. B prepared approximately one half of the\nmanuscript during the course of their official duties at the Bureau and the\nremaining half on their own time. The authors were assisted in large part by Mr.\nC, a Bureau of Prisons employee, who made significant contributions to the\ndevelopment of survey instruments and computer data files and also performed\narchival data analyses to demonstrate sample representativeness for the study.\nMr. C\xe2\x80\x99s contributions were all made during the course of his official duties. In\naddition to the three primary contributors, the project received support services\nfrom many other people, both Government and non-Govemment employees.1\nAs far as we have been able to determine, the study was funded from the\nBureau of Prisons general operating budget, and was supported in large measure\nby the Bureau\xe2\x80\x99s staff in the course of their official duties.\nII. Publication\nPublication of Mr. A\xe2\x80\x99s manuscript is governed by 28 C.F.R. \xc2\xa7 45.73512.\nSubsection (a) of this provision prohibits Department employees from accept\xc2\xad\ning fees from outside sources for publications that were prepared as \xe2\x80\x9ca part of\nthe official duties of the employee.\xe2\x80\x9d2 Subsection (b) prohibits receipt of\n1 For exam ple, we understand that the person who interview ed the inmates for the study was hired from\noutside the Governm ent and paid with Bureau o f Prisons funds for his services.\n2 28 C.F.R. \xc2\xa7 4 5.735-12(a) provides:\n(a) No em ployee shall accept a fee from an outside source on account o f a public appearance,\nspeech, lecture, o r publication if the public appearance or the preparation o f the speech, lecture,\no r publication was a part o f the official duties o f the employee.\n\n17\n\n\x0ccompensation or anything of monetary value for . . . writing . . .\nthe subject matter of which is devoted substantially to the re\xc2\xad\nsponsibilities, programs or operations of the Department, or\nwhich draws substantially on official data or ideas which have\nnot become part of the body of public information.\nSubsection (c) prohibits Department employees from engaging in writing\nwhether with or without compensation . . . that is dependent on\ninformation obtained as a result o f . . . Government employment\nexcept when that information has been made available to the\ngeneral public or when the Deputy Attorney General gives\nwritten authorization for the use of nonpublic information on the\nbasis that the use is in the public interest.\nThe key inquiry in determining the applicability of the prohibitions contained\nin these provisions to Mr. A\xe2\x80\x99s manuscript is whether the manuscript was\nprepared as a part of Mr. A\xe2\x80\x99s official duties at the Bureau of Prisons, is devoted\nsubstantially to the responsibilities and operations of the Department, or is\notherwise dependent on information obtained as a result of his Government\nemployment.3\nThe Department generally has interpreted the prohibitions contained in\n\xc2\xa7 45.735-12 rigorously to preclude any substantial potential for conflicts of\ninterest and the resulting impairment of public confidence in the performance\nof its federal law enforcement duties. Notwithstanding Mr. A\xe2\x80\x99s intention to\npublish the manuscript without compensation, we believe it is clear that Mr.\nA\xe2\x80\x99s manuscript is within the category of documents to which the provisions\ncontained in \xc2\xa7 45.73512 apply. The factors which lead us to this conclusion\nare: (1) the manuscript is styled as a Final Report to the Director; (2) the subject\nmatter of the study is devoted substantially to work carried on by the Bureau of\nPrisons\xe2\x80\x99 Office of Research; (3) the study upon which the manuscript is based\nwas developed and executed largely on \xe2\x80\x9con duty\xe2\x80\x9d time by Department employ\xc2\xad\nees; and (4) the study was prepared in response to an official request of the\nDirector of the Bureau of Prisons, although it seems clear that the Director did\nnot request a report of the detail and magnitude of that prepared by Mr. A.4\nAccordingly, we believe that the manuscript is sufficiently related to Mr. A\xe2\x80\x99s\nofficial duties at the Bureau of Prisons as to prohibit his remuneration for its\npublication. The question of whether publication of the manuscript should be\npermitted at all is a question of judgment which we believe can best be\n3 A secondary inquiry is w hether the data contained in Mr. A \xe2\x80\x99s study has \xe2\x80\x9cbecome part o f the body o f public\ninfo rm atio n .\xe2\x80\x9d If the inform ation already has b een made available to the general public, w ithout regard to the\nquestion o f com pensation, subsection (c) d o es not require the w ritten authorization o f the Deputy A ttorney\nG eneral fo r publication. If the preparation o f th e work w as a part o f the official duties o f em ployees or if the\nsubject m atter o f the w ork is \xe2\x80\x9cdevoted substantially\xe2\x80\x9d to the responsibilities or operations o f the Department,\nhow ever, subsections (a) and (b) preclude receip t o f com pensation from outside sources, even if the Deputy\nA ttorney G eneral has authorized publication o r the inform ation has otherw ise been made public.\n4 In fact, M r. A prepared a preliminary thirteen-page Executive Sum m ary for the Director which outlined\nthe tentative results o f the study and projected future areas o f inquiry.\n\n18\n\n\x0cexercised by the Bureau of Prisons. Even assuming the information contained\nin the study is not public information at this time, we see no reason why the\nDeputy Attorney General should deny the authorization required by subsection\n(c) for publication if the Director of the Bureau has, by his request for authori\xc2\xad\nzation on Mr. A\xe2\x80\x99s behalf, indicated his interest in publication of the study\xe2\x80\x99s\nresults. Absent a concern elsewhere in the Department that such official data be\nkept confidential, we would defer to the judgment of the Division or Office\nwhich developed the data that its publication will not harm the Government\xe2\x80\x99s\nactivities.\nIII. Copyright Protection\nThe determination whether Mr. A\xe2\x80\x99s manuscript may receive copyright pro\xc2\xad\ntection turns on whether the manuscript properly may be described as a \xe2\x80\x9cwork\nof the United States Government.\xe2\x80\x9d Section 105 of the Copyright Act, 17 U.S.C.\n\xc2\xa7 105, prohibits the granting of copyright protection to \xe2\x80\x9cany work of the United\nStates Government,\xe2\x80\x9d defined in \xc2\xa7 101 as \xe2\x80\x9ca work prepared by an officer or\nemployee of the United States Government as part of that person\xe2\x80\x99s official\nduties.\xe2\x80\x9d Thus, all work of the United States Government is intended to be in the\npublic domain. The Historical Notes to \xc2\xa7 105 explain that \xe2\x80\x9cunder this defini\xc2\xad\ntion, a Government official or employee would not be prevented from securing\ncopyright in a work written at that person\xe2\x80\x99s own volition and outside his or her\nduties, even though the subject matter involves the Government work or\nprofessional field of the official or employee.\xe2\x80\x9d5\n5 See H.R. Rep. No. 1476, 94th Cong , 2d Sess 58 (1976). The Notes go on to address:\n[t]he more difficult and far-reaching problem w hether the definition should be broadened to\nprohibit copyright in w orks prepared under U.S. G overnm ent contract or grant As the bill is\nw ritten, the G overnm ent agency concerned could determ ine in each case w hether to allow an\nindependent contractor o r grantee, to secure copyright in works prepared in whole or in part w ith\nthe use o f G overnm ent funds. The argum ent that has been made against allow ing copyright in\nthis situation is that the public should not be required to pay a \xe2\x80\x9cdouble subsidy," and that it is\ninconsistent to prohibit copyright in works by G overnm ent em ployees while perm itting private\ncopyrights in a grow ing body o f works created by persons who are paid with G overnm ent funds.\nThose arguing in favor o f potential copyright protection have stressed the im portance o f copy\xc2\xad\nright as an incentive to creation and dissem ination in this situation, and the basically different\npolicy considerations applicable to works written by G overnm ent em ployees and those appli\xc2\xad\ncable to w orks prepared by private organizations with the use o f Federal funds.\nThe bill deliberately avoids making any sort o f outright, unqualified prohibition against\ncopyright in works prepared under G overnm ent contract or grant T here may well be cases w here\nit would be in the public interest to deny copyright in the w ritings generated by G overnm ent\nresearch contracts and the like; it can be assum ed that, where a G overnm ent agency com m issions\na work for its own use m erely as an alternative to having one o f its own em ployees prepare the\nwork, the right to secure a private copyright w ould be w ithheld However, there are alm ost\ncertainly many other cases where the denial o f copyright protection would be unfair or w ould\nham per the production and publication o f im portant works. W here, under the particular circum \xc2\xad\nstances, Congress o r the agency involved finds that the need to have a work freely available\noutw eighs the need o f the private author to secure copyright, the problem can be dealt with by\nspecific legislation, agency regulations, o r contractual restrictions\nId. at 59 See generally Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981), cert denied, 455 U.S. 948 (1982). This\nprovision would not apply to Mr. A \xe2\x80\x99s circumstances because he is a Government employee, not a contractor.\n\n19\n\n\x0cUsing these guidelines, we believe that Mr. A\xe2\x80\x99s manuscript falls within the\nparameters of a \xe2\x80\x9cwork of the United States Government\xe2\x80\x9d and therefore is not\nentitled to copyright protection. Although the magnitude of the manuscript is\narguably a reflection of Mr. A\xe2\x80\x99s personal estimation of the significance of the\nstudy for the Federal Prison System, some portion of which undoubtedly was\nprepared during off-duty hours, the facts that the study was initiated in re\xc2\xad\nsponse to an official request or recommendation from within the Bureau of\nPrisons\xe2\x80\x99 Office of Research, the analytical tools used in the study were devel\xc2\xad\noped and implemented substantially by Bureau employees during on duty\nhours, and the study was presented as a \xe2\x80\x9cFinal Report to the Director\xe2\x80\x9d setting\nforth the results of the Federal Prison System\xe2\x80\x99s study are, in our judgment,\nsufficient to render the manuscript an \xe2\x80\x9cofficial\xe2\x80\x9d document for the purposes of\nthe Copyright Act. Thus, even though the study may have far exceeded the\nscope of the official request for such data \xe2\x80\x94 indeed, it is precisely because the\nwork is so substantial that a significant risk of pirating exists \xe2\x80\x94 to permit the\nauthor(s) to claim copyright protection for work which was substantially\nsupported and funded by the federal government through the work of its\nemployees would significantly undermine the statutory scheme and legislative\nintent of \xc2\xa7 105.\nJudicial interpretations of \xc2\xa7 105, and its predecessor provisions in the 1909\nCopyright Act, support this conclusion.6 In Public Affairs Associates, Inc. v.\nRickover, 268 F. Supp. 444 (D.D.C. 1967), the court held that two speeches\nprepared and delivered by Vice Admiral Rickover on his own private time\ncould properly be the subject of copyright protection, even though the subject\nof one of the speeches related to the Vice Admiral\xe2\x80\x99s official duties as an\nemployee of the United States Navy and the Atomic Energy Commission. The\ncourt found significant the following facts: (1) neither Admiral Rickover nor\nhis Government employers believed that the speeches fell within Rickover\xe2\x80\x99s\nofficial duties, nor was there any evidence that he was directed to make the\nspeeches by his superiors; (2) delivery of the speeches was precipitated by\ninvitations extended directly to Rickover in his private capacity by two private\norganizations; (3) the speeches were drafted in Rickover\xe2\x80\x99s home, and were\ndelivered on his own time; and (4) the speech the subject matter of which\nrelated to Rickover\xe2\x80\x99s official duties\nwas a non-technical address to a non-technical audience. The\nspeech was subjective in nature and was not consistent with\nAtomic Energy Commission policy . . . . All information con\xc2\xad\ncerning Shippingport [Power Station] was unclassified. Prior to\nthe speech there had been full dissemination of the technical\ninformation derived from Shippingport by the Technical Infor\xc2\xad\nmation Division of the Atomic Energy Commission.\nId. at 453. In short, the only connection the court found between Admiral\n6 See 17 U .S.C . \xc2\xa7 8 (1970), which provided in pertinent part that \xe2\x80\x9c [n]o copyright shall s u b s is t. .\np u b licatio n o f the U nited States G overnm ent/\xe2\x80\x99\n\n20\n\nin any\n\n\x0cRickover\xe2\x80\x99s speeches and the United States Government was in the \xe2\x80\x9cpurely\nmechanical operations\xe2\x80\x9d of his administrative assistant, who \xe2\x80\x9ctyp[ed] a final\ndraft for duplication . . . on Naval facilities.\xe2\x80\x9d This connection was held to be\ninsufficient to render the speeches \xe2\x80\x9cworks of the United States Government.\xe2\x80\x9d\nId. at 449.\nEarlier consideration of the 1909 Act\xe2\x80\x99s provision excepting works of the\nUnited States Government from copyright protection is found in United States\nv. First Trust Company o f Saint Paul, 251 F.2d 686 (8th Cir. 1958). There the\ncourt examined the rough notes prepared by Captain Clark during the Lewis\nand Clark Expedition in 1803-04. Based upon the fact that the materials\ncontained, in addition to data that President Jefferson requested the Expedition\nto gather in its official record, \xe2\x80\x9ca great many personal and private notations,\nincluding information about the receipt of newspapers or letters, details of\npersonal illnesses, social engagements, and other such items as might not be\nexpected to be found in notes of an official character or in an official record,\xe2\x80\x9d\nthe court affirmed the district court\xe2\x80\x99s conclusion \xe2\x80\x9cthat the notes were the\nprivate and personal writings of Captain Clark, unofficial in character and\ntherefore not the work of a Government representative engaged in the perfor\xc2\xad\nmance of his official duties.\xe2\x80\x9d Id. at 690.\nJudgments about copyright protection rest ultimately with the Register of\nCopyrights. This Office therefore is necessarily tentative in making such\njudgments, particularly when we do not have at our disposal all facts relevant to\nthe determination. Accordingly, we recommend that you advise Mr. A to seek\nfurther guidance on this matter from the Copyright Office directly.\nT h eo d o r e B. O lso n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n21\n\n\x0c'


b'May 24, 1977\n\n77-30\n\nMEMORANDUM OPINION FOR THE\nCHAIRMAN OF THE RENEGOTIATION\nBOARD\nDetermination of Date of Commencement of Service\nof Federal Officers\xe2\x80\x94Renegotiation Board\n\nThis is in response to your letter requesting that this Office advise\nyou whether tw o recently appointed members of the Renegotiation\nBoard began their service, for purposes of seniority, when their com\xc2\xad\nmissions were signed by the President or when they took the oath of\noffice. From your letter, we understand that the President signed the\ncommission of Mr. A four days before he signed the Commission of\nMr. B. We further understand that neither commission was stated to be\nsubject to any condition precedent and that both Messrs. A and B took\nthe oath of office on the same day.\nThe Constitution provides that the President \xe2\x80\x9cshall appoint . . .\nofficers of the United States,\xe2\x80\x9d Art. II, \xc2\xa7 2, and that he \xe2\x80\x9cshall commis\xc2\xad\nsion all the officers of the United States.\xe2\x80\x9d Id. \xc2\xa7 3. It is silent as to when\nan appointment is effective. But at an early date the Supreme Court\nheld in Marbury v. Madison, 5 U.S. 137, 156 (1803), that the last act to\nbe done by the President in the appointment process \xe2\x80\x9cis the signature of\nthe commission.\xe2\x80\x9d And in United States v. LeBaron, 60 U.S. 73, 79\n(1856), the Court stated that with respect to an appointment \xe2\x80\x9c [i]t is of\nno importance that the person commissioned must give a bond and take\nan oath.\xe2\x80\x9d Although there appear to be no judicial or administrative\nholdings directly in point on the questions you pose, it is our opinion\nthat these cases establish the proposition that where two officers in the\nsame body are commissioned on different dates, the officer commis\xc2\xad\nsioned first is the senior. Any doubt on this score is resolved by the\nActs of Congress dealing with the precedence of Federal judges, which\nconfer precedence according to the date of their commissions. 28\nU.S.C. \xc2\xa7 4 (Supreme Court), 28 U.S.C. \xc2\xa7 45(b) (circuit judges), 28\nU.S.C. \xc2\xa7 136(b) (district judges), 28 U.S.C. \xc2\xa7 172 (Court of Claims).\nWe therefore conclude that Mr. A takes precedence over Mr. B\nbecause his commission was signed prior to the date that Mr. B\xe2\x80\x99s was\n121\n\n\x0csigned. It should be noted, however, that the beginning of service for\nother purposes, such as the computation of pay, is determined under\ndifferent principles.\nJo hn M . H\n\narmon\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n122\n\n\x0c'