b'Septem ber 1, 1977\n\n77-48\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL OF THE CENTRAL\nINTELLIGENCE AGENCY\nWeissman v. Central Intelligence Agency\xe2\x80\x94District\nof Columbia Circuit\xe2\x80\x94Effect of Decision\n\nThis is in response to your request for our opinion with respect to\nthe consequences of the recent decision of the Court of Appeals for the\nDistrict of Columbia Circuit in Weissman v. Central Intelligence Agency,\n565 F. 2d 692 (D.C. Cir. 1977).1 We understand that the decision has\nbeen made by the Solicitor General not to seek Supreme Court review\nin this instance. We have discussed with his office informally our\ngeneral views on the Weissman case, but we were not directly involved\nin the consideration of the question whether this was an appropriate\ncase in which to seek certiorari. The question that remains is whether,\nand to what extent, the Weissman case proscribes the activities o f the\nCentral Intelligence Agency (CIA). F o r the reasons that follow, we are\nunable at this juncture to provide your Agency with a definitive opin\xc2\xad\nion on the scope and consequences o f the D.C. Circuit\xe2\x80\x99s opinion. We\nare able, however, to suggest the considerations that ought to be\napplied by the CIA in developing procedures dealing with the types of\nactivities potentially affected by Weissman.\nThe troublesome portion of the decision in Weissman is the court\xe2\x80\x99s\ntreatment of the Government\xe2\x80\x99s claim that certain documents generated\nas part of an investigation o f Mr. Weissman need not be disclosed to\nhim by reason of exemption seven of the Freedom of Information Act.\n5 U.S.C. \xc2\xa7 552(b)(7). The district court had ruled that the CIA investi\xc2\xad\ngation fulfilled that exemption\xe2\x80\x99s requirement that the investigation be\nlawful, and that therefore the exemption protected the documents at\nissue from disclosure. The court of appeals held, however, that exemp\xc2\xad\ntion seven was not available to the CIA for the sort of activity in\xc2\xad\nvolved here, and remanded the case to the district court to determine\n1 T h is w as an action under the Freedom o f Inform ation A ct to com pel the Central\nIntelligence A gency to turn over c erta in docum ents.\n\n194\n\n\x0cwhether other exemptions could protect the documents against disclo\xc2\xad\nsure in the absence of that exemption.\nThe court\xe2\x80\x99s rationale is not clear. However, the ruling appears to be\nbased on its belief that the investigative procedures used were not\nlegally authorized where the target of those procedures was a United\nStates citizen having no connection with the CIA. The court indicated\nits opinion as to the CIA\xe2\x80\x99s authority in this regard in several statements:\n[The proviso in 50 U.S.C. \xc2\xa7 403(d)(3)] was intended, at the very\nleast, to prohibit the CIA from conducting secret investigations of\nUnited States citizens, in this country, who have no connection\nwith the Agency. 565 F. 2d at 695.\n[The responsibility of the Director of Central Intelligence to pro\xc2\xad\ntect intelligence sources and methods] contains no grant of power\nto conduct security investigations of unwitting American citizens.\nId. at 696.\nA full background check within the United States of a citizen who\nnever had any relationship with the CIA is not authorized . . . .\nId. at 696.\nThese three statements, apparently, form the basis of the court\xe2\x80\x99s ruling\nthat exemption seven is not available.\nNeither the above statements nor the rest of the court\xe2\x80\x99s opinion\nexplain exactly what sorts of investigations the court believed were\nillegal; the court\xe2\x80\x99s opinion is ambiguous, for example, as to the scope of\npermissible investigations and the \xe2\x80\x9cconnection\xe2\x80\x9d that the person under\ninvestigation must have with the CIA. In assessing the opinion, and in\nendeavoring to determine what restrictions it imposes upon the CIA,\nwe believe that there are several factors that ought to be taken into\nconsideration.\nFirst, a restrictive interpretation of the court\xe2\x80\x99s language is justified in\nview of the context in which it was rendered. The opinion was ren\xc2\xad\ndered in a case involving the Freedom of Information Act, and not in\nan injunctive or declaratory action directly challenging the C IA \xe2\x80\x99s prac\xc2\xad\ntices. The court was not presented with a full and direct briefing and\nconsideration of the complex issues that must be evaluated in ascertain\xc2\xad\ning the proper limitations on the C IA \xe2\x80\x99s substantive activities.\nSecond, this is the decision of only one court of appeals in a single\ncase. The Government in other contexts has not always accorded final\neffect to the decisions of lower Federal courts. For instance, in the\nareas of tax and labor law, the Government frequently has pursued in\none circuit a statutory interpretation at odds with pertinent rulings by\ncourts in other circuits. Moreover, there is reason to believe that\nfurther elaboration of the court\xe2\x80\x99s view of the CIA \xe2\x80\x99s authority will be\nforthcoming in the not too distant future. As you know, the Govern\xc2\xad\nment has now filed with the D.C. Circuit Court of Appeals its appellee\nbrief in M arks v. Central Intelligence Agency, No. 77-1225. The Govern\xc2\xad\n195\n\n\x0cment devotes considerable attention to a discussion of the potential\nsweep o f the Weissman case, and it may well be that the court will take\nthis opportunity to expand upon or clarify its views.\nAdditionally, we do believe that a substantial argument can be made\nthat the case was decided wrongly. As you know, Exceutive Order\n11905 3 C FR 90 (1976) prohibits foreign intelligence agencies from\ncollecting information concerning the domestic activities of United\nStates persons, except, among other things, for information collected to\ndetermine the suitability o r credibility of persons who are reasonably\nbelieved to be potential sources or contacts. \xc2\xa7 5(b)(7)(iii). See also\n\xc2\xa7 4(b)(8). The court did not discuss this provision at all. Additionally,\nthe Senate Select Committee to Study Intelligence Activities recog\xc2\xad\nnized that the CIA previously had conducted such investigations, and\napparently did not object to them as violations of the CIA \xe2\x80\x99s charter\nlegislation; in fact, the Committee recommended that the practice be\nallowed to continue. See S. Rep. No. 755, Book II, 94th Cong., 2d\nSess., pp. 302-03 (1976). In a perplexing footnote, the court of appeals\nreferred to that treatment o f the question by the Committee, but it is\nunfortunately quite difficult to determine whether the reference was\nintended as a favorable comment upon the practice or as a simple\nstatement of historical fact. See, id. at 696, fn. 8. We believe that given\nthe court\xe2\x80\x99s ambiguous treatment of these important questions, we\nshould be slow to adopt any interpretation of the court\xe2\x80\x99s language that\nwould be at odds with these conclusions drawn, respectively, by the\nexecutive and legislative branches. Nonetheless, this is the only judicial\ninterpretation and its import cannot be ignored.\nW ith those considerations in mind, the following are our general\ncomments about the meaning of the Weissman case:\n1. Knowledge of the subject. Your letter to our Civil Division\nexpresses a concern that the court\xe2\x80\x99s opinion might be read to\nrequire that the subject of any proposed investigation be \xe2\x80\x9cmade\naware of both the fact and the CIA sponsorship of the investiga\xc2\xad\ntion.\xe2\x80\x9d The Civil Division does not believe this to be the case, and\nneither do we. While the court at times refers to investigations of\n\xe2\x80\x9cunwitting\xe2\x80\x9d Americans, 565 F. 2d at 696, other statements in the\nopinion are not predicated on the factor that the investigation is\nunknown to the subject. See, e.g., id. at 695, 696. Rather, these\nstatements find investigations unauthorized by reason of the lack of\na \xe2\x80\x9crelationship\xe2\x80\x9d or \xe2\x80\x9cconnection\xe2\x80\x9d with the CIA. While in many\ncases an individual will be aware of his relationship with the CIA,\nthe lack of an explicit requirement to this effect in the court\xe2\x80\x99s\nopinion indicates that the court did not deem this to be an invari\xc2\xad\nable prerequisite to an investigation.\n2. Requisite connection with the CIA. The court made clear in\nseveral instances that the prohibition on CIA security investiga\xc2\xad\ntions applied only to those \xe2\x80\x9cw ho have no connection with the\n196\n\n\x0cAgency\xe2\x80\x9d or \xe2\x80\x9cwho never had any relationship with the CIA .\xe2\x80\x9d This\nimplies that the CIA might under appropriate circumstances con\xc2\xad\nduct investigations of those who have some connection with the\nCIA; the opinion, however, does not specify what sorts of connec\xc2\xad\ntions might justify a security investigation. While the end result\nmakes clear that the CIA \xe2\x80\x99s unilateral, undisclosed interest, by itself,\nis not sufficient, much more than this may not be required to\nestablish the requisite relationship. For example, all those perform\xc2\xad\ning work for or on behalf of the CIA might have a sufficient\nrelationship with the Agency to justify a security investigation\xe2\x80\x94\neven if they are unaware of CIA sponsorship or involvement.\nIndividuals who consent to an investigation, in the hope o f becom\xc2\xad\ning an employee or asset, also would seem to have a connection\nwith the Agency that would justify a security investigation.\n3. Permissible scope of the investigation. The court at one point\nstates that \xe2\x80\x9ca full background check\xe2\x80\x9d is not authorized; we do not\nbelieve, however, that this is the only type of investigation which is\nprohibited. The court at other points states that the CIA is barred\nfrom \xe2\x80\x9csecret investigations\xe2\x80\x9d or \xe2\x80\x9csurveillance and scrutiny\xe2\x80\x9d o f\nUnited States citizens, and this would indicate that some initiatives\nless than a full background check are precluded. A t the same time,\nwe agree with the Civil Division that all such initiatives are not\nprecluded. The court\xe2\x80\x99s references to a \xe2\x80\x9cfull background check\xe2\x80\x9d (p.\n696), to \xe2\x80\x9csurveillance and scrutiny,\xe2\x80\x9d to a \xe2\x80\x9cGestapo\xe2\x80\x9d and a \xe2\x80\x9csecret\npolice,\xe2\x80\x9d and to a prying \xe2\x80\x9cinto the lives and thoughts o f citizens\xe2\x80\x9d\n(p. 695), together with the context o f the thorough investigation\nthat the court assumed occurred in this case, suggest that the court\nwas concerned about the more intrusive security checks. The court\nalso emphasized the extensiveness of the investigation, pointing out\nthat it spanned a \xe2\x80\x9cfive year period.\xe2\x80\x9d (p. 695). Additionally, in\nendeavoring to ascertain the limits of the court\xe2\x80\x99s opinion, the\nreference in footnote 8 deserves attention. In discussing the Com\xc2\xad\nmittee\xe2\x80\x99s recommendations, the court pointed out that a line had\nthere been drawn between investigations \xe2\x80\x9cthrough surveillance\xe2\x80\x9d\nand those, which the Committee approved, \xe2\x80\x9cto collect information\nthrough confidential interviews about \xe2\x80\x98individuals or organizations\nbeing considered by the CIA as potential sources of information\n. . . . \xe2\x80\x99 \xe2\x80\x9d 565 F. 2d 696, fn. 8.\n4. The relationship between \xe2\x80\x9cconnection and intrusiveness.\xe2\x80\x9d It is\nclear that the court was concerned about investigations of those\nwho have no \xe2\x80\x9cconnection\xe2\x80\x9d with the CIA. It is also clear that the\ncourt was sensitive to the extensiveness and intrusiveness of such\ninvestigations. On the basis of the court\xe2\x80\x99s opinion, however, there\nsimply is no definitive way to determine the precise relationship\nbetween those two factors. Plainly, an investigation that is as longlived as was the Weissman investigation, and involves \xe2\x80\x9cdetailed\n197\n\n\x0cbackground checks\xe2\x80\x9d o f a person who is unaware that he is being\nconsidered by the C IA and who has no \xe2\x80\x9cconnection\xe2\x80\x9d with the\nAgency, would be inconsistent with the decision. However, it is\ndifficult to anticipate whether the Weissman case has any further\nreach. The opinion offers little guidance in interpreting the statu\xc2\xad\ntory limitations upon your Agency\xe2\x80\x99s activities.\nGiven this ambiguity, w e would suggest that the most productive\ncourse might be for the C IA to draft procedures governing the types of\nactivities that require it to conduct investigations of United States\ncitizens within the United States who have no clear connection with\nthe CIA. This Office would be happy to review those procedures and\nto cooperate with you in any other way we can.\nJohn M . H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n198\n\n\x0c'


b"Presidential Powers Relating to the Situation in Iran\n[T h e fo llo w in g m em o ran d u m w as p re p a re d in the h o u rs im m ediately fo llo w in g th e\nseizu re o f th e U n ited S tates em bassy in T e h ra n . Its c o n clu sio n s a re set fo rth in its\nseco n d p a ra g ra p h ]\n\nN ovem ber 7, 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\nThis m em orandum addresses, on an urgent basis, possible responses\nto the situation in Iran.\nO ur conclusions are as follows:\n1) T he President may block Iranian assets upon the declaration o f a\nnational em ergency under the International Em ergency E conom ic\nPow ers A ct (IE E PA ). An oil boycott w ould be such an em ergency.\nThis A ct also provides authority to halt transactions including im ports\nand exports.\n2) W ithout declaration o f an em ergency, the President may prohibit\nor curtail the export o f goods in situations threatening Am erican na\xc2\xad\ntional security or stated foreign policy goals under the E xport Adm inis\xc2\xad\ntration A ct o f 1979.\n3) T he President may restrict the m ovem ent o f Iranian diplom atic\nand consular personnel and m ay take non-forcible reprisals.\n4) Except in time o f w ar the United States cannot intern Iranian\nnationals.\n5) T he President has the constitutional pow er to send troops to aid\nAm erican citizens abroad. This pow er is subject to the consultation and\nreporting provisions o f the W ar Pow ers Resolution.\nI. Authority to Impose Economic Controls\nA. The International Emergency Economic Powers A ct\n\nT he President has wide-ranging pow er to regulate direct foreign\ninvestment under the International E m ergency Econom ic Pow ers A ct,\nPub. L. No. 95-223, title II, 50 U.S.C. \xc2\xa7\xc2\xa7 1701-1706 (Supp. I 1977),\nenacted in 1977.\nT he A ct authorizes the President, after declaration o f a national\nem ergency, to block all assets in the United States o f Iran and Iranian\n115\n\n\x0cnationals and to prohibit or regulate all im portation o r exportation of\nproperty in w hich Iran o r Iranians have an interest.\nT he IE E P A provides in relevant part:\nSec. 202. (a) A ny authority granted to the President by\nsection 203 may be exercised to deal w ith any unusual and\nextraordinary threat, w hich has its source in whole or\nsubstantial part outside the U nited States, to the national\nsecurity, foreign policy, o r econom y o f the United States,\nif the President declares a national em ergency with re\xc2\xad\nspect to such threat.\n(b)\nT he authorities granted to the President by section\n203 may only be exercised to deal w ith an unusual and\nextraordinary threat w ith respect to w hich a national\nem ergency has been declared for purposes o f this title and\nmay not be exercised for any other purpose. A ny exercise\no f such authorities to deal w ith any new threat shall be\nbased on a new declaration o f national em ergency w hich\nmust be w ith respect to such threat.\nSec. 203. (a)(1) A t the times and to the extent specified\nin section 202, the President may, under such regulations\nas he may prescribe, by means o f instructions, licenses, or\notherw ise\xe2\x80\x94\n(A) investigate, regulate, o r prohibit \xe2\x80\x94\n(i) any transactions in foreign exchange,\n(ii) transfers o f credit or paym ents between, by, through,\nor to any banking institution, to the extent that such\ntransfers or paym ents involve any interest o f any foreign\ncountry or a national thereof,\n(iii) the importing or exporting o f currency or securities;\nand\n(B) investigate, regulate, direct and compel, nullify, void,\nprevent or prohibit, any acquisition, holding, withholding, use,\ntransfer, withdrawal, transportation, importation or exporta\xc2\xad\ntion of, or dealing in, or exercising any right, power, or\nprivilege with respect to, or transactions involving, any prop\xc2\xad\nerty in which any foreign country or a national thereof has\nany interest;\n\nby any person, o r w ith respect to any property, subject to\nthe jurisdiction o f the United States.\n50 U.S.C. \xc2\xa7\xc2\xa7 1701, 1702(a)(1). (Em phasis added.) 1 It is clear that once\nthe President declares a national em ergency under the IE E P A , he\n\xe2\x80\x99 T h e statute denies the President au th o rity to regulate com m unications and m ost hum anitarian\nactivities. Id. \xc2\xa7 1702(b).\n\n116\n\n\x0cassumes plenary control over all foreign assets subject to the jurisdic\xc2\xad\ntion of the United States, and he may regulate or prohibit m ovem ents\no f foreign or dom estic currency or credit in and out of the country.\nIn the IE E P A , Congress (perhaps intentionally) left the definition of\n\xe2\x80\x9cnational em ergency\xe2\x80\x9d ostentatiously vague.2 This may reflect either the\ndifficulty of defining all possible situations which could constitute a\nnational em ergency o r the recognition that w hat constitutes a national\nem ergency is essentially a political question depending upon the felt\nnecessities o f a particular political context.\nH ow ever, the legislative history indicates that an oil em bargo could\ninstitute a national emergency.\nD uring the markup o f the bill in the Com m ittee on International\nRelations, the following exchange betw een Representatives Solarz and\nBingham, the latter being Chairm an o f the Subcom m ittee that consid\xc2\xad\nered the legislation, took place:\nMr. Solarz. F or argum ent sake, let us say there was an\xc2\xad\nother oil embargo. W ould that constitute potentially the\nkind o f nonw ar national emergency?\nMr. Bingham. I think quite clearly it would.\nMr. Solarz. If it would, and the President declared a\nnational em ergency pursuant to such an embargo, could\nyou explain in lay language w hat precisely he would be\nable to do under his powers? W hen it talks about regulat\xc2\xad\ning the controlling [sic] foreign assets, does that mean he\ncould freeze the assets o f the boycott [sic] o f the country\nthat established the embargo?\nMr. Bingham. C orrect, freeze but not seize. T here is a\ndifference.\nMr. Solarz. So if he had money he could tie it up and say\nin effect w hen you lift the embargo, we will lift the\nfreeze?\nMr. Bingham. T hat is correct. He can regulate exports in\na m anner not regulated by the Export Adm inistration\nAct.\n2 See H.R. Rep. No. 459, 95th Cong., 1st Sess. 10 (1977):\n[G]iven the breadth o f the authorities and their availability at the President's discretion\nupon a declaration o f national em ergency, th eir exercise should be subject to various\nsubstantive restrictions. T h e main one stem s from a recognition that em ergencies are\nby their nature rare and brief, and are not to be equated w ith norm al, ongoing\nproblems. A national em ergency should be declared and em ergency authorities em \xc2\xad\nployed only w ith respect to a specific set o f circum stances w hich constitute a real\nem ergency, and for no o th e r purpose. T h e em ergency should be term inated in a timely\nm anner w hen the factual state o f em ergency is o v e r and not continued in effect for use\nin o th e r circum stances. A state o f national em ergency should not be a norm al state of\naffairs.\n\n117\n\n\x0cMr. Solarz. W hich means he could in effect establish an\nem bargo on exports to that country?\nMr. Bingham. C orrect.\nRevision o f Trading With the Enem y Act, M arkup Before the House\nComm, on International Relations, 95th Cong., 1st Sess. 4 (1977).\n\nD eclaration o f a national em ergency under the IE E P A implicates\nprovisions o f the National Em ergencies A ct, Pub. L. No. 94-412, 50\nU.S.C. \xc2\xa7\xc2\xa7 1601-51. See H.R. Rept. No. 459 at 14 (1977). Section 204(d),\n50 U.S.C. \xc2\xa7 1703(d), provides that the consulting and reporting obliga\xc2\xad\ntions placed on the President \xe2\x80\x9care supplem ental to those contained in\ntitle IV o f the National Em ergencies A ct.\xe2\x80\x9d And the National Em ergen\xc2\xad\ncies A ct states in no uncertain term s that \xe2\x80\x9c [n]o law enacted after the\ndate o f enactm ent o f this A ct shall supersede this title [concerning\ndeclaration o f a national em ergency and congressional pow er to term i\xc2\xad\nnate] unless it does so in specific terms, referring to this title, and\ndeclaring that the new law supersedes the provisions of this title.\xe2\x80\x9d 50\nU.S.C. \xc2\xa7 1641. Thus, should the President declare a national em ergency\nunder the IE E P A arising out o f an energy crisis, he must\n(a) transmit the declaration and a report justifying it to C on\xc2\xad\ngress and publish the declaration in the Federal Register (50\nU.S.C. \xc2\xa7 1703);\n(b) keep and transm it to C ongress records o f all executive\norders, proclam ations, rules, and regulations (id., \xc2\xa7 1641);\n(c) transm it to C ongress every six m onths a report on expendi\xc2\xad\ntures directly attributable to the exercise o f em ergency authori\xc2\xad\nties (id.);\n(d) report to C ongress every six m onths actions taken in the\nexercise o f the em ergency authorities (id., \xc2\xa7 1703(c)).\nF urtherm ore, the legislative veto provision o f the National E m ergen\xc2\xad\ncies A ct, \xc2\xa7 202(a)(1), applies to the President\xe2\x80\x99s declaration o f a national\nem ergency under the IE E P A ; and \xc2\xa7 207(b) o f the IE E P A provides\nfurther that Congress may term inate the President\xe2\x80\x99s exercise o f author\xc2\xad\nity saved by IE E P A \xe2\x80\x99s grandfather clause, \xc2\xa7 207(a)(1). President C arter\nnoted his \xe2\x80\x9cserious concern\xe2\x80\x9d over the unconstitutionality o f \xc2\xa7 207(b) at\nthe time he signed the IE E P A . Pub. Papers o f Jim m y C arter 2187\n(Dec. 28, 1977). W e believe C ongress may not constitutionally term i\xc2\xad\nnate the exercise o f these authorities by passage o f a concurrent resolu\xc2\xad\ntion not submitted to the President pursuant to A rticle I, \xc2\xa7 7 o f the\nConstitution.\nW hile the A ct has not been used, the constitutionality o f its predeces\xc2\xad\nsors has been upheld. E.g., Nielsen v. Secretary o f Treasury, 424 F.2d 833\n(D .C . Cir. 1970); Pike v. United States, 340 F.2d 487 (9th Cir. 1965);\nSordino v. Fed. Res. Bank, 361 F.2d 106 (2d Cir.), cert, denied 385 U.S.\n898 (1966).\n118\n\n\x0cB. Export Controls\n\nT he new Export Adm inistration A ct o f 1979 (Pub. L. No. 96-72, to\nbe codified at 50 U.S.C. App. \xc2\xa7 2401 et seq.) contains tw o separate\ngrants of pow er to the President to prohibit or curtail the export of\ngoods and technology that are subject to the jurisdiction o f the United\nStates. Both o f these provisions state that the authority is to be exer\xc2\xad\ncised by the Secretary o f Com m erce by means of export licenses. T he\nfirst provision, \xc2\xa7 5(a), is meant to implement the A c t\xe2\x80\x99s policy to restrict\nexports that \xe2\x80\x9c would make a significant contribution to the military\npotential o f any other country . . . which would prove detrim ental to\nthe national security o f the United States.\xe2\x80\x9d (\xc2\xa7 3(2)(A)). T he second\nprovision is meant to implement the A c t\xe2\x80\x99s policies to restrict exports\n\xe2\x80\x9cto the extent necessary to further significantly the foreign policy o f\nthe United States or to fulfill its declared international obligations,\xe2\x80\x9d\n(\xc2\xa7 6(a)) a phrase that is apparently limited by an accom panying crossreference to the A c t\xe2\x80\x99s policies o f securing removal of foreign restric\xc2\xad\ntions on our supplies in certain circum stances, and of discouraging the\nprovision o f aid or sanctuary to international terrorists.\nE ither or both o f these grants o f pow er may prove responsive to the\nIranian situation. T he A ct sets some substantive restrictions on presi\xc2\xad\ndential discretion that are not outlined above (e.g., he may not limit\nexports o f medicines). It also includes com plicated provisions for the\nSecretary to follow in issuing or denying licenses.\nII. Diplomatic and Consular Persons and Property\nA. Rights o f Iranian Diplom ats\n\nT he rights o f diplomats are codified in the Vienna C onvention on\nDiplom atic Relations, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A .S. No. 7502.\nThe United States and Iran are both parties to the Convention.\nA rticle 39 o f the Vienna C onvention on D iplom atic Relations, 23\nU.S.T. 3227, provides that privileges and immunities continue even in\ncase o f armed conflict. T he United States opposed this provision be\xc2\xad\ncause it would preclude custody in wartime, 7 M. W hiteman, Digest of\nInt\xe2\x80\x99l Law 441, but did not enter a reservation to it. T he State D epart\xc2\xad\nment Legal A dviser expressed the view during hearings on the conven\xc2\xad\ntion that A rticle 26, which permits regulation o f the travel o f diplomats\nfor reasons o f national security, w ould permit custody. Id. at 442. Thus,\nit might be possible to place their diplomats in a situation akin to house\narrest under A rticle 26. H ow ever, they w ould be free to leave the\ncountry. A rticle 44.\nThis conclusion is reinforced by the fact that it appears that Iran has\nbeen guilty o f massive breach o f its obligation under the C onvention to\nprotect United States diplomats and diplomatic property. A material\nbreach of a multilateral treaty by one o f the parties entitles a party\n119\n\n\x0cspecially affected by the breach to invoke it as a ground for suspending\nthe operation o f the treaty in w hole or in part in the relations between\nitself and the defaulting state. Vienna C onvention on the Law o f T rea\xc2\xad\nties, A rt. 60, Senate Exec. L., 92d Cong., 1st Sess. (1971).\nB. D iplom atic Property\n\nT he Diplom atic C onvention further provides that the host state must\nrespect and protect the premises of the mission together with its prop\xc2\xad\nerty and archives even if diplom atic relations are broken off. On the\nother hand a violation o f a treaty obligation, as o f any other obligation,\nmay give rise to a right \xe2\x80\x9c to take non-forcible reprisals.\xe2\x80\x9d Com m entary on\nVienna Convention on L aw o f Treaties, [1966]. 2 Y.B. Int\xe2\x80\x99l L. Com m \xe2\x80\x99n\n169, 253-54. W e make no recom m endation as to w hat an appropriate\nreprisal may be.\nC. Consular Offices\nT he T reaty o f Am ity, Econom ic Relations, and C onsular Rights,\nAug. 15, 1955, United States-Iran, 8 U.S.T. 899, T.I.A .S. No. 3853,\nprovides for protection o f consular officers (Art. X III) and for the\nnormal privileges and immunities. In addition, both the United States\nand Iran are parties to the subsequent Vienna C onvention on Consular\nRelations, A pr. 24, 1963, 21 U.S.T. 77, T.I.A .S. No. 6820. T he Consular\nC onvention includes provisions for protection o f consular posts com pa\xc2\xad\nrable to those in the D iplom atic C onvention (Arts. 26, 27, 34 and our\nobservations w ould similarly apply.)\nIII. Iranian Nationals\nT he President has statutory authority to intern or expel enemy aliens.\nH ow ever, this pow er is available only in time o f w ar or invasion, 50\nU.S.C. \xc2\xa7 21, and thus cannot be invoked at present. T he Suprem e C ourt\nhas held this provision constitutional. Ludecke v. Watkins, 335 U.S. 160\n(1948).\nT he Suprem e C ourt has also upheld the constitutionality o f curfews\nand exclusion orders directed solely at persons o f Japanese ancestry\n(including A m erican citizens) during W orld W ar II, Korematsu v.\nUnited States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320\nU.S. 81 (1943). T he court invalidated detention orders as beyond the\nstatutory authority o f the W ar Relocation A uthority w ithout reaching\nthe constitutional issues. E x Parte Endo, 323 U.S. 283 (1944).\nT hese orders w ere authorized by a statute w hich was repealed in\n1976. Section 501(e) o f P.L. No. 94-412, the National Em ergencies Act.\nN o com parable statute exists today.\n\n120\n\n\x0cIV. Use of Troops\nA. Constitutional Power\n\nIt is well established that the President has the constitutional pow er\nas C hief Executive and Com m ander-in-Chief to protect the lives and\nproperty o f Am ericans abroad. This understanding is reflected in judi\xc2\xad\ncial decisions, e.g., D urand v. Hollins, 8 Fed. Cas. I l l (No. 4186)\n(C.C.S.D.N.Y. 1860) quoted in T he C onstitution o f the United States:\nAnalysis and Interpretation 562-63 (1973), and recurring historic prac\xc2\xad\ntice which goes back to the time o f Jefferson. E.g., B orchard, The\nDiplom atic Protection o f Citizens A broad 448-53 (1915). This pow er\nhas been used conspicuously in recent years in a variety o f situations.\nThese include: landing troops in the Dom inican Republic to protect the\nlives of citizens believed to be threatened by rebels (1965), the D anang\nsealift during the collapse o f Vietnam defense (1975), the evacuation of\nPhnom Penh (Cambodia, 1975), the evacuation o f Saigon (1975), the\nMayaguez incident (1975), evacuation o f civilians during the civil w ar in\nLebanon (1976), and the dispatch o f forces to aid Am erican victims in\nGuyana (1978).\nB. The War Powers Resolution\n\nT he W ar Pow ers Resolution, 50 U.S.C. \xc2\xa7 1541 et seq., does not limit\nthe President\xe2\x80\x99s pow er to act in this instance. Its consultation and report\xc2\xad\ning requirem ents are, how ever, both triggered by situations w hich in\xc2\xad\nvolve the introduction o f armed forces into hostilities, o r into situations\nw here imminent involvem ent in hostilities is clearly indicated. See 50\nU.S.C. \xc2\xa7\xc2\xa7 1542, 1543.3 In addition, reporting to Congress is also re\xc2\xad\nquired by the Resolution when armed forces are sent to a foreign\ncountry equipped for combat, or when they are sent in numbers w hich\nsubstantially enlarge the forces equipped for com bat already in a for\xc2\xad\neign nation. See 50 U.S.C. \xc2\xa7 1543.\nT he Resolution includes in its statem ent o f purposes and policy a list\no f situations in which the President is authorized to introduce the\narmed forces into hostilities or situations o f imminent hostility. See 50\nU.S.C. \xc2\xa7 1541(c). Protection o f Am erican citizens abroad is not there\nmentioned. H ow ever, we do not consider that the purpose and policy\nstatement should be construed to constrain the exercise o f the Presi\xc2\xad\nd ent\xe2\x80\x99s constitutional pow er in this instance.\nFirst, the Resolution\xe2\x80\x99s policy statem ent is not a com prehensive or\nbinding formulation o f the President\xe2\x80\x99s powers as Commander-in-Chief.\n3 T here have been, since the enactm ent o f (he Resolution, four instances o f protection and evacu\xc2\xad\nation w here its provisons applied. See War Powers: A Test o f Compliance Relative to the Danang Sealift,\nthe Evacuation o f Phnom Penh, the Evacuation o f Saigon, arid the Mayaguez Incident, Hearings Before the\nSubcommittee on International Security and Scientific Affairs o f the House Comm, on International\nRelations, 94th C ong., 1st Sess. (1975).\n\n121\n\n\x0cSee H. Conf. Rep. 547 93d Cong., 1st Sess. 8 (1973) (stating that\n\nsubsequent sections o f the Resolution are not dependent on the policy\nstatem ent). M oreover, Senator Javits, Senate M anager o f the C onfer\xc2\xad\nence Bill, when asked w hether the President has \xe2\x80\x9cauthority to act\nunilaterally to rescue Am erican nationals in danger abroad who might\nbe found in the midst o f rebellion or the threat o f w ar,\xe2\x80\x9d replied:\nI think the normal practice w hich has grow n up on that is\nthat it does not involve such a utilization o f the forces of\nthe United States as to represent a use o f forces, apprecia\xc2\xad\nbly, in hostilities so as to constitute an exercise o f the w ar\npow er or to constitute a com m itm ent o f the Nation to\nwar.\n119 Cong. Rec. 33,558 (1973). In view o f this \xe2\x80\x9cnormal practice,\xe2\x80\x9d it\nwould seem that the failure in the R esolution\xe2\x80\x99s statem ent o f purpose\nand policy to list the recognized Presidential pow er o f protecting\nAm erican citizens abroad is itself an indication that the list therein was\nnot meant to be exhaustive.4\nFinally, the Resolution itself disclaims any intent to alter the constitu\xc2\xad\ntional pow er o f the President, such as has been discussed in this memo\xc2\xad\nrandum, see 50 U.S.C. \xc2\xa7 1547(d)(1), and it probably could not.\nJo\n\nhn\n\nM. H\n\narm on\n\nAssistant Attorney General\nOffice o f L egal Counsel\n\nASee F ran ck , A fter the Fall: The N ew Procedural Framework fo r Congressional Control Over the War\nPower, 71 A m . J. Int'l L. 605, 613, 626 (1977).\n\n\x0c"


b'Constraints Imposed by 18 U.S.C. \xc2\xa7 1913 on\nLobbying Efforts\nThe Anti-Lobbying A ct prohibits substantial \xe2\x80\x9cgrass roots\xe2\x80\x9d lobbying campaigns o f telegrams,\nletters, and other private forms o f com m unication designed to encourage members o f\nthe pu blic to pressure Members o f Congress to support Administration or Department\nlegislative o r appropriations proposals.\nThe Anti-Lobbying A ct d o e s not prohibit (1) direct com m unications between Department o f\nJustice officials and Members o f Congress and their staffs; (2) public speeches, appear\xc2\xad\nances, and writings; (3) private com m unications designed to inform the public about\nAdministration positions or to prom ote those positions, as long as there is no significant\nexpenditure o f appropriated funds; (4) the traditional activities o f Department com p o\xc2\xad\nnents w h o se duties historically h ave included com m unicating the Department\xe2\x80\x99s views\nto Congress, the media, or the pu blic; or (5) com m unications or activities unrelated to\nlegislation o r appropriations, s u ch as lobbying Congress or the public to support\nAdministration nominees.\n\nSeptember 28, 1989\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\n\nI. Introduction\nYou have requested our guidance concerning the extent to which the\nAnti-Lobbying Act, 18 U.S.C. \xc2\xa7 1913 (the \xe2\x80\x9cAct\xe2\x80\x9d), imposes constraints on\nactivities by executive branch employees that relate to legislative mat\xc2\xad\nters. Section 1913, which has not been the basis o f a single prosecution\nsince its enactment in 1919, prohibits the use o f appropriated funds for\nactivities designed to influence Members of Congress concerning any\nlegislation or appropriation.\nTo summarize our analysis o f this statute, we offer the following guide\xc2\xad\nlines for you and the Department as to what lobbying activities are\npermitted and prohibited.\nPermitted activities:\n\n1. The Act does not apply to direct communications between Department\no f Justice officials and Members of Congress and their staffs. Consequently,\nthere is no restriction on Department officials directly lobbying Members of\nCongress and their staffs in support o f Administration or Department\npositions.\n300\n\n\x0c2. The Act does not apply to public speeches, appearances and writ\xc2\xad\nings. Consequently, Department officials are free to publicly advance\nAdministration and Department positions, even to the extent o f calling on\nthe public to encourage Members of Congress to support Administration\npositions.\n3. The Act does not apply to private communications designed to\ninform the public o f Administration positions or to promote those posi\xc2\xad\ntions. Thus, there is no restriction on private communications with mem\xc2\xad\nbers of the public as long as there is not a significant expenditure o f\nappropriated funds to solicit pressure on Congress.\n4. The Act does not circumscribe the traditional activities of Depart\xc2\xad\nment components whose duties historically have included responsibility\nfor communicating the Department\xe2\x80\x99s views to Members o f Congress, the\nmedia, or the public.\n5. By its terms, the Act is inapplicable to communications or activities\nunrelated to legislation or appropriations. Consequently, there is no\nrestriction on Department officials lobbying Congress or the public to\nsupport Administration nominees.\nProhibited activities:\n\nThe Act may prohibit substantial \xe2\x80\x9cgrass roots\xe2\x80\x9d lobbying campaigns of\ntelegrams, letters and other private forms o f communication designed\nto encourage members o f the public to pressure Members o f Congress\nto support Administration or Department legislative or appropriations\nproposals.\nIf a question should arise with respect to any activity not listed here,\nwe would be happy to analyze whether the statute applies to it.\n\nII. Discussion\nSection 1913 o f title 18 provides:\nNo part o f the money appropriated by any enactment of\nCongress shall, in the absence of express authorization by\nCongress, be used directly or indirectly to pay for any per\xc2\xad\nsonal service, advertisement, telegram, telephone, letter,\nprinted or written matter, or other device, intended or\ndesigned to influence in any manner a Member o f Congress,\nto favor or oppose, by vote or otherwise, any legislation or\nappropriation by Congress, whether before or after the\nintroduction o f any bill or resolution proposing such legis\xc2\xad\nlation or appropriation; but this shall not prevent officers or\nemployees o f the United States or o f its departments or\nagencies from communicating to Members o f Congress on\n301\n\n\x0cthe request o f any Member or to Congress, through the\nproper official channels, requests for legislation or appro\xc2\xad\npriations which they deem necessary for the efficient con\xc2\xad\nduct o f the public business.\nWhoever, being an officer or employee o f the United\nStates or o f any department or agency thereof, violates or\nattempts to violate this section, shall be fined not more\nthan $500 or imprisoned not more than one year, or both;\nand after notice and hearing by the superior officer vested\nwith the power of removing him, shall be removed from\noffice or employment.\nSeveral limitations on the otherwise expansive scope o f this provision\nappear from the statute\xe2\x80\x99s face.\nFirst, the statute applies only to activities \xe2\x80\x9cintended or designed to\ninfluence ... legislation or appropriations.\xe2\x80\x9d Thus, lobbying activities related\nto other matters, such as nominations and treaties, are not subject to the\nstatute.\nSecond, the statute prohibits only lobbying that is conducted in the\nform o f the provision of a personal service or advertisement, that is pre\xc2\xad\nsented in written form, or that is communicated by telephone or \xe2\x80\x9cother\ndevice.\xe2\x80\x9d Read in context, the prohibition on other \xe2\x80\x9cdevice[s]\xe2\x80\x9d does not\nappear to prohibit speeches or other verbal communications that are not\nrelayed by telephone. Thus, we do not believe that the statute prohibits\npublic speeches by executive branch employees aimed at generating\npublic support for Administration policies and legislative proposals.\nThird, the statute makes clear that it does not prohibit government\nofficials from communicating \xe2\x80\x9cto Members of Congress on the request of\nany Member or to Congress, through the proper official channels\xe2\x80\x9d on\nmatters those officials \xe2\x80\x9cdeem necessary for the efficient conduct o f the\npublic business.\xe2\x80\x9d1 Thus, the statute does not bar contacts between\nAdministration officials and Congress that are initiated by Members of\nCongress or that relate to requests for legislation or appropriations that\nthe executive branch employee in the fulfillment o f his official duties\ndeems necessary to conduct the public business. Consistent with this\nprovision, this Office and the Criminal Division previously have con\xc2\xad\ncluded that section 1913 does not apply to the lobbying activities of\nexecutive branch officials whose positions typically and historically\nentail an active effort to secure public support for the Administration\xe2\x80\x99s\n\n1 Congressman Good, who introduced the bill, was asked whether the bill was \xe2\x80\x9cintended .. to prevent\nthe employees or officers o f the Government from communicating directly with their Representatives in\nCongress.\xe2\x80\x9d He replied, \xe2\x80\x9cNo, that is expressly reserved.... They have, o f course, the nght to communicate,\njust as before, with their Members of C ongress" 58 Cong. Rec. 404 (1919)\n\n302\n\n\x0clegislative program.2 Such officials include presidential aides, appointees,\nand their delegees in areas within their official responsibility.3\nThis construction o f section 1913 is strongly supported by the statute\xe2\x80\x99s\nexemption o f lobbying activities that are conducted pursuant to an\n\xe2\x80\x9cexpress authorization by Congress.\xe2\x80\x9d We believe that Congress\xe2\x80\x99 contin\xc2\xad\nued appropriation o f funds for positions held by executive branch offi\xc2\xad\ncials whose duties historically have included seeking support for the\nAdministration\xe2\x80\x99s legislative program constitutes \xe2\x80\x9cexpress authorization\nby Congress\xe2\x80\x9d for the lobbying activities o f these officials, and thus, that\ntheir activities are exempt from section 1913.4 Officials whose activities\nare covered by this \xe2\x80\x9cexpress authorization\xe2\x80\x9d exception to section 1913\ninclude the President, his aides and assistants within the Executive\nOffice of the President, Cabinet members within their areas o f responsi\xc2\xad\nbility, and persons to whom the Cabinet official traditionally has assigned\nsuch responsibilities.5\nThe legislative history to section 1913 sheds additional light on the type\nof activities that Congress intended to bar. Representative Good, who\nintroduced the bill, described the statute\xe2\x80\x99s purpose as follows:\n[I]t will prohibit a practice that has been indulged in so\noften, without regard to what administration is in power \xe2\x80\x94\nthe practice o f a bureau chief or the head o f a department\nwriting letters throughout the country, sending telegrams\nthroughout the country, for this organization, for this man,\nfor that company to write his Congressman, to wire his\nCongressman, in behalf o f this or that legislation. The gen\xc2\xad\ntleman from Kentucky, Mr. Sherley, former chairman o f this\ncommittee, during the closing days of the last Congress was\ngreatly worried because he had on his desk thousands upon\nthousands of telegrams that had been started right here in\nWashington by some official wiring out for people to write\nCongressman Sherley for this appropriation and for that.\n2Sec Memorandum for Arthur B Culvahouse, Jr, Counsel to the President, from Charles J Cooper,\nAssistant Attorney General, Office o f Legal Counsel, Re Applicability o f 18 U.S.C 1913 to Lobbying\nEfforts in Support o f Ratification o f INF Treaty at, 6 n 7 (Dec. 31, 1987) ( \xe2\x80\x9cCulvahouse Memo\xe2\x80\x9d);\nMemorandum for John R Bolton, Assistant Attorney General, Office o f Legislative Affairs, from Charles\nJ Cooper, Assistant Attorney General, Office o f Legal Counsel, Re. Applicability of 18 U S.C. 1913 to\nContracts Between United States Attorneys and Members of Congress m Support of Pending\nLegislation at 5-6 (Oct. 27, 1987) ( \xe2\x80\x9cBolton Memo\xe2\x80\x9d), Memorandum for Paul Michel, Acting Deputy\nAttorney General, from John M Harmon, Assistant Attorney General, Office o f Legal Counsel, Re: Alleged\nViolations o f 18 U S C 1913 at 2, 3-4 (Feb 20, 1980) (\xe2\x80\x9cMichel Memo"), Memorandum for Philip B\nIleymann, Assistant Attorney General, Criminal Division, from Thomas H Henderson, Jr, Chief, Public\nIntegnty Section, Criminal Division at 8-10 (Oct. 15, 1979) ( \xe2\x80\x9cHenderson Memo\xe2\x80\x9d)\n3See Michel Memo at 3.\n4Culvahouse Memo at 6 n.7; Bolton Memo at 5-6, Henderson Memo at 8-10; Michel Memo at 2, 3-4\n5 We caution, however, against these officials engaging in \xe2\x80\x9cgrass-roots\xe2\x80\x9d campaigns o f the type men\xc2\xad\ntioned in the legislative history to section 1913 See infra pp 303-04.\n\n303\n\n\x0cNow, they use the contingent fund for that purpose, and I\nhave no doubt that the telegrams sent for that purpose cost\nthe Government more than $7,500. Now, it was never the\nintention o f Congress to appropriate money for this pur\xc2\xad\npose, and section 5 o f the bill will absolutely put a stop to\nthat sort o f thing.\n58 Cong. Rec. 403 (1919). These remarks demonstrate that Congress\nwas concerned about the use o f appropriated funds to implement\n\xe2\x80\x9cgrass roots\xe2\x80\x9d6 mass mailing campaigns at great expense.7 Based on this\nlegislative history, this Office consistently has concluded that the\nstatute was enacted to restrict the use o f appropriated funds for largescale, high-expenditure campaigns specifically urging private recipi\xc2\xad\nents to contact Members o f Congress about pending legislative matters\non behalf o f an Administration position. See, e.g., Michael Memo at 5\n(section 1913 was intended to \xe2\x80\x9cprohibit the Executive from using\nappropriated funds to create artificially the impression that there is a\nground swell o f public support for the Executive\xe2\x80\x99s position on a given\npiece o f legislation\xe2\x80\x9d).8 Accordingly, we do not believe the statute\nshould be construed to prohibit the President or executive branch\nagencies from engaging in a general open dialogue with the public on\nthe Administration\xe2\x80\x99s programs and policies. Nor do we believe the\nstatute should be construed to prohibit public speeches and writings\ndesigned to generate support for the Administration\xe2\x80\x99s policies and leg\xc2\xad\nislative proposals.\nBecause section 1913 imposes criminal penalties, it is appropriate that\nit be construed narrowly. Under the widely recognized \xe2\x80\x9crule of lenity,\xe2\x80\x9d\ncriminal provisions subject to more than one reasonable construction\nshould be interpreted narrowly, and ambiguity should be resolved in\nfavor o f lenience. See, e.g., Bifulco v. United States, 447 U.S. 381 (1980);\n3 Sutherland, Statutory Construction \xc2\xa7\xc2\xa7 59.03-59.06 (4th ed. 1973). In\naddition, a narrow construction of section 1913 is necessary to avoid the\nconstitutional issues that would arise if the section were interpreted as\n\n0 By \xe2\x80\x9cgrass roots\xe2\x80\x9d lobbying we mean communications by executive officials directed to members o f the\npublic at large, or particular segments o f the general public, intended to persuade them in turn to\ncommunicate with their elected representatives on some issue o f concern to the executive. This type of\nactivity is to be distinguished from communications by executive officials aimed directly at the elected\nrepresentatives themselves, no matter how much incidental publicity those communications may receive\nin the normal course o f press coverage See Memorandum for Robert J Lipshutz, Counsel to the\nPresident, from John M. Harmon, Assistant Attorney General, Office o f Legal Counsel, Re- Anti-Lobbying\nLaws at 10 (Nov 29, 1977) (\xe2\x80\x9c 1977 Harmon M emo") ( \xe2\x80\x9cAs long\nas a federal official limits himself to pub\xc2\xad\nlic forums and relies upon normal workings o f the press, he may say anything he wishes without fear of\nviolating section 1913.").\n7Our calculations indicate that an expenditure o f $7500 in 1919 would be roughly equivalent to one of\n$50,000 today.\n8Culvahouse Memo at 6 n.7; Bolton M emo at 5; 1977 Harmon Memo at 10-14.\n\n304\n\n\x0cimposing a broader ban.9 In previous analyses o f this statute, we have\nidentified at least three serious constitutional problems that would arise\nif section 1913 were construed as a blanket prohibition on executive\nbranch activities relating to legislation or appropriations.\nFirst, construing section 1913 broadly to restrict executive branch con\xc2\xad\ntacts with Members of Congress would interfere with the President\xe2\x80\x99s con\xc2\xad\nstitutionally mandated role in the legislative process. Article II, Section 3,\nClause 1 o f the Constitution provides that the President \xe2\x80\x9cshall from time\nto time give to the Congress Information o f the State of the Union, and\nrecommend to their Consideration such Measures as he shall judge nec\xc2\xad\nessary and expedient.\xe2\x80\x9d This Clause imposes on the President a responsi\xc2\xad\nbility to recommend measures to Congress and constitutes a formcil basis\nfor the President\xe2\x80\x99s role in influencing the legislative process.10 The\nPresident cannot be deprived o f this capacity to explain why he believes\nparticular measures are \xe2\x80\x9cnecessary and expedient.\xe2\x80\x9d\nSecond, legislation curtailing the President\xe2\x80\x99s ability to implement his\nlegislative program through communications with Congress and the\nAmerican people would infringe upon his constitutional obligation to\n\xe2\x80\x9ctake Care that the Laws be faithfully executed.\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 3.11\nIt would be impossible for the President to fulfill this constitutional\nresponsibility if he could not communicate freely with those who make\nthe laws, as well as with those whose actions are governed by them.\nThird, section 1913, if construed broadly, would weaken the constitu\xc2\xad\ntional framework established in Article II, which in general imposes on\nthe President the duty to communicate with the American people. The\nPresident, o f course, \xe2\x80\x9cis a representative o f the people, just as the mem\xc2\xad\nbers of the Senate and o f the House are.\xe2\x80\x9d Myers v. United States, 272 U.S.\n52, 123 (1926). Indeed, \xe2\x80\x9con some subjects ... the President, elected by all\nthe people, is rather more representative o f them all than are the mem\xc2\xad\nbers o f either body o f the Legislature, whose constituencies are local and\nnot country wide.\xe2\x80\x9d Id. Because o f his unique position as the only elected\n\n9See 1977 Harmon Memo, supra note 6 See also Letter for Leo Krulitz, Solicitor, Department o f the\nIntenor, from John M. Harmon, Assistant Attorney General, Office o f Legal Counsel (July 18, 1978);\nMemorandum for Assistant Attorney General McConnell, from Deputy Assistant Attorney General\nSimms (Oct. 5, 1982) (forwarding a proposed draft report on S 1969, a bill to \xe2\x80\x9cprohibit the use o f appro\xc2\xad\npriations for the payment o f certain lobbying costs").\n10See Edward S Corwin, The Constitution of the United States 536 (2d ed. 1973) The early Presidents,\nWashington, Jefferson and Jackson among them, took an active role in their relations with Congress.\n\xe2\x80\x9cToday there is no subject on which the President may not appropriately communicate with Congress, in\nas precise terms as he chooses, his conception o f its duty \xe2\x80\x9d Id at 537.\n11 Supreme Court precedent establishes that Congress may not interfere with the President\xe2\x80\x99s ability to\ncarry out his constitutional prerogatives. See, for example, Hart v. United States, 118 U.S. 62 (1886), and\nUnited States v. Klein, 80 U S (13 Wall.) 128 (1872), invalidating congressional attempts to interfere with\nthe President\xe2\x80\x99s pardon power. Even where, as here, Congress acts pursuant to its appropriations power,\nits authonty is not absolute Congress may not, for example, use its appropnations power to establish a\nreligion, Flast v. Cohen, 392 U.S. 83, 104-05 (1968), or to diminish the compensation o f federal judges.\nUnited States v. Will, 449 U.S 200(1980).\n\n305\n\n\x0cofficial with a truly \xe2\x80\x9c\xe2\x80\x98national\xe2\x80\x99 perspective,\xe2\x80\x9d INS v. Chadha, 462 U.S. 919,\n948 (1983), it is necessary to the independent power of the executive\nbranch that the President be able to communicate freely with the citizens\no f the United States, including on matters that relate to legislative affairs.\nThus, reading section 1913 broadly to restrict all communications with\nthe public with respect to legislation or appropriations would interfere\nwith the executive\xe2\x80\x99s ability to perform his constitutionally imposed\nresponsibilities.12\n\nIII. Conclusion\nWe conclude that section 1913 prohibits large-scale publicity cam\xc2\xad\npaigns to generate citizen contacts with Congress on behalf o f an\nAdministration position with respect to legislation or appropriations. It\ndoes not proscribe lobbying activities with respect to other matters, such\nas nominations or treaties. It does not prohibit speeches or other com\xc2\xad\nmunications designed to inform the public generally about Adminis\xc2\xad\ntration policies and proposals or to encourage general public support for\nAdministration positions. In addition, the statute does not prohibit con\xc2\xad\ntacts between executive branch officials and Members o f Congress that\neither were initiated by the Member o f Congress, or that relate to a\nrequest for legislation or appropriations that the employee deems \xe2\x80\x9cnec\xc2\xad\nessary for the efficient conduct of the public business.\xe2\x80\x9d Finally, the\nstatute does not prohibit lobbying activities expressly authorized by\nCongress, such as activities by executive branch employees whose offi\xc2\xad\ncial duties historically have included lobbying functions, for whose posi\xc2\xad\ntions Congress has continued to appropriate funds.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n12 To discharge these responsibilities effectively, the President must be permitted to employ the ser\xc2\xad\nvices o f his political aides, appointees and other officials Any restrictions on the ability o f such officials\nto assist the President necessarily undermines the President\xe2\x80\x99s ability to fulfill his constitutional respon\xc2\xad\nsibilities and amount to restrictions on the President himself. See Memorandum for Steve Markman,\nAssistant Attorney General, Office o f Legal Policy, from John 0 McGinnis, Acting Deputy Assistant\nAttorney General, Office o f Legal Counsel, Re. H R. 3400 - Application of Hatch Act to Senior Political\nAppointees and Presidential Aides (Oct. 19, 1987) (Congress may not restrict the President\xe2\x80\x99s ability to\ncommunicate with the public by restricting those the President has chosen to assist him in this regard).\nIn particular, the President must be permitted to employ the services o f his political appointees and aides\nnecessary to effectuate his constitutionally protected ability to communicate with his constituency con\xc2\xad\ncerning the decisions for which the President, as the politically accountable head o f the executive\nbranch, is alone responsible For these reasons, section 1913 must be construed narrowly as it relates to\nthe ability o f executive branch employees to communicate with the public on legislative matters\n\n306\n\n\x0c'