b'(Slip Opinion)\n\n\xe2\x80\x9cUrgent Concern\xe2\x80\x9d Determination by the Inspector\nGeneral of the Intelligence Community\nA complaint from an intelligence-community employee about statements made by the\nPresident during a telephone call with a foreign leader does not involve an \xe2\x80\x9curgent\nconcern,\xe2\x80\x9d as defined in 50 U.S.C. \xc2\xa7 3033(k)(5)(G), because the alleged conduct does\nnot relate to \xe2\x80\x9cthe funding, administration, or operation of an intelligence activity\xe2\x80\x9d under the authority of the Director of National Intelligence. As a result, the statute does\nnot require the Director to transmit the complaint to the congressional intelligence\ncommittees.\nSeptember 3, 2019\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE *\nOn August 26, 2019, the Inspector General of the Intelligence Community (\xe2\x80\x9cICIG\xe2\x80\x9d) forwarded to the Acting Director of National Intelligence\n(\xe2\x80\x9cDNI\xe2\x80\x9d) a complaint from an employee within the intelligence community. The complainant alleged that unnamed \xe2\x80\x9cWhite House officials\xe2\x80\x9d had\nexpressed concern that during a July 25, 2019 phone call, President\nTrump had sought to pressure the Ukrainian president to pursue investigations that might have the effect of assisting the President\xe2\x80\x99s re-election bid.\nAccording to the ICIG, such a request could be viewed as soliciting a\nforeign campaign contribution in violation of the campaign-finance laws.\nSee Letter for Joseph Maguire, Acting Director of National Intelligence,\nfrom Michael K. Atkinson, Inspector General of the Intelligence Community, at 3 (Aug. 26, 2019) (\xe2\x80\x9cICIG Letter\xe2\x80\x9d). In the ICIG\xe2\x80\x99s view, the complaint addresses an \xe2\x80\x9curgent concern\xe2\x80\x9d for purposes of triggering statutory\nprocedures that require expedited reporting of agency misconduct to the\ncongressional intelligence committees. Under the applicable statute, if the\nICIG transmits such a complaint to the DNI, the DNI has seven days to\nforward it to the intelligence committees. See 50 U.S.C. \xc2\xa7 3033(k)(5)(C).\n\n* Editor\xe2\x80\x99s Note: This memorandum was originally issued in classified form on September 3, 2019. An unclassified version was signed on September 24, 2019, and publicly\nreleased in slip-opinion form on September 25, 2019. That unclassified version avoided\nreferences to certain details that remained classified at the time it was signed. After the\nunderlying documents were themselves declassified, the September 3 memorandum was\ndeclassified in its entirety and publicly released on September 26, 2019.\n\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nThe complaint does not arise in connection with the operation of any\nU.S. government intelligence activity, and the alleged misconduct does\nnot involve any member of the intelligence community. Rather, the complaint arises out of a confidential diplomatic communication between the\nPresident and a foreign leader that the intelligence-community complainant received secondhand. The question is whether such a complaint falls\nwithin the statutory definition of \xe2\x80\x9curgent concern\xe2\x80\x9d that the law requires\nthe DNI to forward to the intelligence committees. We conclude that it\ndoes not. The alleged misconduct is not an \xe2\x80\x9curgent concern\xe2\x80\x9d within the\nmeaning of the statute because it does not concern \xe2\x80\x9cthe funding, administration, or operation of an intelligence activity\xe2\x80\x9d under the authority of\nthe DNI. Id. \xc2\xa7 3033(k)(5)(G)(i). That phrase includes matters relating\nto intelligence activities subject to the DNI\xe2\x80\x99s supervision, but it does not\ninclude allegations of wrongdoing arising outside of any intelligence\nactivity or outside the intelligence community itself.\nOur conclusion that the \xe2\x80\x9curgent concern\xe2\x80\x9d requirement is inapplicable\ndoes not mean that the DNI or the ICIG must leave such allegations\nunaddressed. To the contrary, the ICIG statute, 50 U.S.C. \xc2\xa7 3033(k)(6),\nmakes clear that the ICIG remains subject to 28 U.S.C. \xc2\xa7 535, which\nbroadly requires reporting to the Attorney General of \xe2\x80\x9c[a]ny information,\nallegation, matter, or complaint witnessed, discovered, or received in a\ndepartment or agency . . . relating to violations of Federal criminal law\ninvolving Government officers and employees.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 535(b).\nAccordingly, should the DNI or the ICIG receive a credible complaint of\nalleged criminal conduct that does not involve an \xe2\x80\x9curgent concern,\xe2\x80\x9d the\nappropriate action is to refer the matter to the Department of Justice,\nrather than to report to the intelligence committees under section\n3033(k)(5). Consistent with 28 U.S.C. \xc2\xa7 535, the ICIG\xe2\x80\x99s letter and the\nattached complaint have been referred to the Criminal Division of the\nDepartment of Justice for appropriate review.\nI.\nAn \xe2\x80\x9cemployee of an element of the intelligence community\xe2\x80\x9d (or an\nintelligence-community contractor) \xe2\x80\x9cwho intends to report to Congress a\ncomplaint or information with respect to an urgent concern may report\n\n2\n\n\x0c\xe2\x80\x9cUrgent Concern\xe2\x80\x9d Determination by the IG of the Intelligence Community\n\nsuch complaint or information to the\xe2\x80\x9d ICIG. 50 U.S.C. \xc2\xa7 3033(k)(5)(A). 1\nOn August 12, 2019, the Office of the ICIG received a complaint purporting to invoke this provision. The complainant alleged that he or she had\nheard reports from White House officials that in the course of a routine\ndiplomatic communication between President Trump and Ukrainian\nPresident Volodymyr Zelenskyy, President Trump had \xe2\x80\x9csought to pressure\nthe Ukrainian leader to take actions to help the President\xe2\x80\x99s 2020 reelection\nbid.\xe2\x80\x9d ICIG Letter at 3 (quoting the complainant\xe2\x80\x99s letter). Specifically, the\ncomplainant allegedly heard that the President had requested that the\nUkrainian government investigate the activities of one of the President\xe2\x80\x99s\npotential political rivals, former Vice President Joseph Biden, and his son,\nHunter Biden. The complainant also allegedly heard that the President had\nrequested Ukrainian assistance in investigating whether Russian interference in the 2016 U.S. presidential election originated in Ukraine, and that\nUkrainian investigators meet with the President\xe2\x80\x99s personal lawyer, Rudolph Giuliani, as well as Attorney General William Barr regarding these\nmatters. The complainant described this communication as arising during\na scheduled call with the foreign leader that, consistent with usual practice, was monitored by approximately a dozen officials in the White\nHouse Situation Room. Having heard about the President\xe2\x80\x99s reported\nstatements, the complainant expressed an intent to report this information\nto the intelligence committees.\nWhen the ICIG receives a complaint about an \xe2\x80\x9curgent concern,\xe2\x80\x9d the\nstatute provides that the ICIG then has 14 days to \xe2\x80\x9cdetermine whether the\ncomplaint or information appears credible.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 3033(k)(5)(B).\nThe ICIG determined that the complaint here involved an \xe2\x80\x9curgent concern\xe2\x80\x9d under section 3033(k)(5) and that it appeared credible. See ICIG\nLetter at 5. As relevant here, the statutory definition of an \xe2\x80\x9curgent\nconcern\xe2\x80\x9d includes \xe2\x80\x9c[a] serious or flagrant problem, abuse, [or] violation\nof law . . . relating to the funding, administration, or operation of an\nintelligence activity within the responsibility and authority of the Director\n1 Section 8H of the Inspector General Act of 1978 (\xe2\x80\x9cIG Act\xe2\x80\x9d), 5 U.S.C. app., parallels\nthe urgent-concern provision of the ICIG statute, 50 U.S.C. \xc2\xa7 3033(k)(5), and appears to\nprovide another pathway to report an urgent concern to the ICIG or an appropriate\ninspector general. Because the complainant and the ICIG in this instance invoked only\nsection 3033(k)(5), we address that provision in our opinion, but as discussed below, the\nDNI\xe2\x80\x99s reporting obligation would be the same under either provision. See infra Part II.A\n& n.6.\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nof National Intelligence involving classified information.\xe2\x80\x9d 50 U.S.C.\n\xc2\xa7 3033(k)(5)(G)(i). According to the ICIG, the President\xe2\x80\x99s actions could\ninvolve a \xe2\x80\x9cserious or flagrant problem,\xe2\x80\x9d \xe2\x80\x9cabuse,\xe2\x80\x9d or violation of law, and\nthe ICIG observed that federal law prohibits any person from soliciting or\naccepting a campaign contribution or donation from a foreign national.\nICIG Letter at 3; see, e.g., 52 U.S.C. \xc2\xa7 30121(a). 2 The ICIG further noted\nthat \xe2\x80\x9calleged conduct by a senior U.S. public official to seek foreign\nassistance to interfere in or influence a Federal election\xe2\x80\x9d could \xe2\x80\x9cpotentially expose [the official] to serious national security and counterintelligence\nrisks.\xe2\x80\x9d ICIG Letter at 3. Although the ICIG\xe2\x80\x99s preliminary review found\n\xe2\x80\x9csome indicia of an arguable political bias on the part of the Complainant\nin favor of a rival political candidate,\xe2\x80\x9d the ICIG concluded that the complaint\xe2\x80\x99s allegations nonetheless appeared credible. Id. at 5.\nThe ICIG concluded that the matter concerns an intelligence activity\nwithin the DNI\xe2\x80\x99s responsibility and authority. He reasoned that the DNI is\n\xe2\x80\x9cthe head of the Intelligence Community,\xe2\x80\x9d \xe2\x80\x9cact[s] as the principal adviser\n. . . for intelligence matters related to national security,\xe2\x80\x9d and oversees the\nNational Intelligence Program and its budget. Id. at 4 (internal quotation\nmarks omitted). In addition, the intelligence community, under the DNI\xe2\x80\x99s\ndirection, \xe2\x80\x9cprotect[s] against intelligence activities directed against the\nUnited States,\xe2\x80\x9d including foreign efforts to interfere in our elections. Id.\n(internal quotation marks and ellipsis omitted). 3 The ICIG also found it\nrelevant that the President has directed the DNI to issue a report, within\n2 The ICIG determined that the allegation \xe2\x80\x9cappears credible\xe2\x80\x9d without conducting any\ndetailed legal analysis concerning whether the allegation, if true, would amount to an\nunlawful solicitation of a campaign contribution. See ICIG Letter at 5. We likewise do not\nexpress a view on the matter in this opinion.\n3 The ICIG also noted that the complainant alleged that \xe2\x80\x9cofficials from the Office of\nManagement and Budget\xe2\x80\x9d had informed the \xe2\x80\x9cinteragency\xe2\x80\x9d that \xe2\x80\x9cthe President had issued\ninstructions to suspend all security assistance to Ukraine,\xe2\x80\x9d and that \xe2\x80\x9cthere might be a\nconnection\xe2\x80\x9d between the President\xe2\x80\x99s call with the Ukrainian president and this action.\nICIG Letter at 4 n.12. The ICIG suggested that if the allegedly improper motives could be\nsubstantiated, then this decision \xe2\x80\x9cmight implicate the Director of National Intelligence\xe2\x80\x99s\nresponsibility and authority with regard to implementing the National Intelligence Program and/or executing the National Intelligence Program budget.\xe2\x80\x9d Id. However, the ICIG\ndid not further explain what role the DNI had in connection with Ukraine security assistance, how an alleged direction from the President would implicate the DNI\xe2\x80\x99s performance of his responsibilities, or whether an allegation of improper motive appeared\ncredible.\n\n4\n\n\x0c\xe2\x80\x9cUrgent Concern\xe2\x80\x9d Determination by the IG of the Intelligence Community\n\n45 days of a federal election, assessing any information indicating that a\nforeign government interfered in that election. Id. at 4 n.14; see Exec.\nOrder No. 13848, \xc2\xa7 1(a) (Sept. 12, 2018). For these reasons, the ICIG\nconcluded that the complaint involves an intelligence activity within the\nresponsibility and authority of the DNI. ICIG Letter at 5. 4 He thus transmitted the complaint to the DNI on August 26, 2019.\nII.\nYou have asked whether the DNI has a statutory obligation to forward\nthe complaint to the intelligence committees. We conclude that he does\nnot. To constitute an \xe2\x80\x9curgent concern,\xe2\x80\x9d the alleged misconduct must\ninvolve \xe2\x80\x9cthe funding, administration, or operation of an intelligence\nactivity within the responsibility and authority\xe2\x80\x9d of the DNI. 50 U.S.C.\n\xc2\xa7 3033(k)(5)(G)(i). Similar to other aspects of the ICIG\xe2\x80\x99s responsibilities,\nthe urgent-concern provision permits employees to bring to the intelligence committees\xe2\x80\x99 attention credible allegations of serious abuses arising\nfrom within the U.S. intelligence community. 5 This provision, however,\ndoes not cover every alleged violation of federal law or other abuse that\ncomes to the attention of a member of the intelligence community. Where,\n4 The complainant also alleged that unnamed officials within the Executive Office of\nthe President had attempted to restrict access to records of the President\xe2\x80\x99s call with the\nUkrainian president by placing the transcript into a computer system managed by the\nNational Security Council Directorate for Intelligence Programs that was reserved for\ncodeword-level intelligence programs. The complainant stated that some officials at the\nWhite House had advised that this action may have been an abuse of the system, but the\nICIG did not discuss this allegation in concluding that the complaint stated an urgent\nconcern.\n5 We have recognized constitutional concerns with statutory requirements that subordinate executive branch officials disclose classified information to congressional committees. See, e.g., Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. 92,\n100 (1998). In addition, the materials here concern diplomatic communications, and as\nAttorney General Janet Reno recognized, \xe2\x80\x9c[h]istory is replete with examples of the\nExecutive\xe2\x80\x99s refusal to produce to Congress diplomatic communications and related\ndocuments because of the prejudicial impact such disclosure could have on the President\xe2\x80\x99s\nability to conduct foreign relations.\xe2\x80\x9d Assertion of Executive Privilege for Documents\nConcerning Conduct of Foreign Affairs with Respect to Haiti, 20 Op. O.L.C. 5, 6 (1996)\n(opinion of Attorney General Janet Reno). Addressing the statutory question in this\nopinion, however, does not require us to consider constitutional limits on congressional\nreporting requirements.\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nas here, the report concerns alleged misconduct by someone from outside\nthe intelligence community, separate from any \xe2\x80\x9cintelligence activity\xe2\x80\x9d\nwithin the DNI\xe2\x80\x99s purview, the matter is not an \xe2\x80\x9curgent concern\xe2\x80\x9d under the\nstatute.\nA.\nCongress has specified certain procedures by which an intelligencecommunity employee may submit a complaint to Congress. Those procedures, which involve the ICIG, require that the subject of the complaint\npresent an \xe2\x80\x9curgent concern.\xe2\x80\x9d In relevant part, an \xe2\x80\x9curgent concern\xe2\x80\x9d is:\nA serious or flagrant problem, abuse, violation of law or Executive\norder, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority\nof the Director of National Intelligence involving classified information, but does not include differences of opinions concerning public policy matters.\n50 U.S.C. \xc2\xa7 3033(k)(5)(G)(i) (emphasis added). The Inspector General\nAct contains a parallel provision that applies to complaints submitted\nto inspectors general within the intelligence community. See IG Act\n\xc2\xa7 8H(i)(1)(A), 5 U.S.C. app. (\xe2\x80\x9cA serious or flagrant problem, abuse,\nviolation of law or Executive order, or deficiency relating to the funding,\nadministration, or operations of an intelligence activity involving classified information, but does not include differences of opinions concerning\npublic policy matters.\xe2\x80\x9d (emphasis added)). 6\nThat definition undergirds the urgent-concern framework that applies\nwhen \xe2\x80\x9c[a]n employee of an element of the intelligence community . . .\nintends to report to Congress a complaint or information with respect to\nan urgent concern.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 3033(k)(5)(A). The provision contemplates, as relevant here, that the employee first \xe2\x80\x9creport[s] such complaint\n6 The definition of \xe2\x80\x9curgent concern\xe2\x80\x9d in the IG Act is not limited to intelligence activities that are specifically \xe2\x80\x9cwithin the responsibility and authority of the\xe2\x80\x9d DNI because the\ncomplaint procedures in section 8H are written to apply to multiple inspectors general\nwithin the intelligence community. See IG Act \xc2\xa7 8H(a)(1)(A)\xe2\x80\x93(D), 5 U.S.C. app. (including separate provisions for the Inspectors General for the Department of Defense, for the\nIntelligence Community, for the Central Intelligence Agency, and for the Department of\nJustice).\n\n6\n\n\x0c\xe2\x80\x9cUrgent Concern\xe2\x80\x9d Determination by the IG of the Intelligence Community\n\nor information to the [ICIG].\xe2\x80\x9d Id. The ICIG then has 14 days to evaluate the credibility of the complaint \xe2\x80\x9cunder subparagraph (A)\xe2\x80\x9d and\ndetermine whether to transmit it to the DNI. Id. \xc2\xa7 3033(k)(5)(B). If the\nICIG transmits the complaint to the DNI \xe2\x80\x9cunder subparagraph (B),\xe2\x80\x9d then\nthe DNI \xe2\x80\x9cshall, within 7 calendar days of such receipt, forward such\ntransmittal to the congressional intelligence committees, together with any\ncomments the [DNI] considers appropriate.\xe2\x80\x9d Id. \xc2\xa7 3033(k)(5)(C).\nEach of those steps builds on the previous one, but they must all rest\non a sound jurisdictional foundation. If the complaint does not involve\nan \xe2\x80\x9curgent concern,\xe2\x80\x9d as defined in the statute, then the remaining procedures are inapplicable. When the ICIG receives a complaint that is not\nan \xe2\x80\x9curgent concern,\xe2\x80\x9d then he has not received a report \xe2\x80\x9cunder subparagraph (A)\xe2\x80\x9d and section 3033(k)(5)(B) does not trigger a reporting obligation. And when the DNI receives a transmittal that does not present an\nurgent concern, then the DNI is not required to forward it to the congressional committees, because the complaint is not one \xe2\x80\x9cunder subparagraph\n(B).\xe2\x80\x9d Id. \xc2\xa7 3033(k)(5)(C).\nB.\nThe complainant describes a hearsay report that the President, who is\nnot a member of the intelligence community, abused his authority or acted\nunlawfully in connection with foreign diplomacy. In the ICIG\xe2\x80\x99s view,\nthose allegations fall within the urgent-concern provision because the DNI\nhas operational responsibility to prevent election interference. 7 But even\n7 The ICIG cites no statute or executive order charging the DNI with operational responsibility for preventing foreign election interference. The DNI serves as the head of\nthe intelligence community, the principal intelligence adviser to the President, and the\nofficial responsible for supervising the National Intelligence Program, who sets general\nobjectives, priorities, and policies for the intelligence community. 50 U.S.C. \xc2\xa7\xc2\xa7 3023(b),\n3024(f )(1)(A), (f )(3)(A). The DNI thus surely has responsibility to coordinate the activities of the intelligence community and the provision of intelligence to the President and\nother senior policymakers concerning foreign intelligence matters. But the complaint does\nnot suggest misconduct by the DNI or any of his subordinates in connection with their\nduties. Moreover, even if the DNI had general oversight responsibility for preventing\nforeign election interference, the DNI\xe2\x80\x99s oversight responsibilities do not appear to extend\nto the President. By statute, the DNI exercises his authority subject to the direction of the\nPresident, see id. \xc2\xa7\xc2\xa7 3023(b), 3024(f )(1)(B)(i), ( j), and the statute\xe2\x80\x99s definition of \xe2\x80\x9cintelligence community\xe2\x80\x9d conspicuously omits the Executive Office of the President, see id.\n\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nif so, it does not follow that the alleged misconduct by the President\nconcerns \xe2\x80\x9cthe funding, administration, or operation of an intelligence\nactivity within the responsibility and authority\xe2\x80\x9d of the DNI because the\nallegations do not arise in connection with any such intelligence activity\nat all. 50 U.S.C. \xc2\xa7 3033(k)(5)(G)(i). The complaint therefore does not\nstate an \xe2\x80\x9curgent concern.\xe2\x80\x9d\nWe begin with the words of the statute. Section 3033(k)(5)(G) does not\nexpressly define \xe2\x80\x9cintelligence activity,\xe2\x80\x9d but the meaning of the phrase\nseems clear from context. The \xe2\x80\x9cintelligence activit[ies]\xe2\x80\x9d in question are\nones over which the DNI has \xe2\x80\x9cresponsibility and authority,\xe2\x80\x9d which points\nto intelligence-gathering, counterintelligence, and intelligence operations\nundertaken by the intelligence community under the supervision of the\nDNI. Id. The National Security Act of 1947 commonly refers to \xe2\x80\x9cintelligence activities\xe2\x80\x9d as authorized activities undertaken by the intelligence\ncommunity. Section 3024(c)(4), for instance, requires the DNI to \xe2\x80\x9censure\nthe effective execution of the annual budget for intelligence and intelligence-related activities.\xe2\x80\x9d Id. \xc2\xa7 3024(c)(4). Section 3023(b)(3) authorizes\nthe DNI to \xe2\x80\x9coversee and direct the implementation of the National Intelligence Program,\xe2\x80\x9d id. \xc2\xa7 3023(b)(3), which itself is defined to include \xe2\x80\x9call\nprograms, projects, and activities of the intelligence community,\xe2\x80\x9d id.\n\xc2\xa7 3003(6) (emphasis added). Section 3094 conditions the use of appropriated funds \xe2\x80\x9cavailable to an intelligence agency . . . for an intelligence or\nintelligence-related activity,\xe2\x80\x9d and defines an \xe2\x80\x9cintelligence agency\xe2\x80\x9d as\n\xe2\x80\x9cany department, agency, or other entity of the United States involved in\nintelligence or intelligence-related activities.\xe2\x80\x9d Id. \xc2\xa7 3094(a), (e)(1) (emphasis added). Sections 3091 and 3092 similarly contemplate the reporting to Congress of \xe2\x80\x9cintelligence activities\xe2\x80\x9d carried out by the U.S. government. See id. \xc2\xa7\xc2\xa7 3091(a), 3092(a). In addition, in establishing the\nOffice of the DNI, Congress was aware of the long-standing definition set\nforth in Executive Order 12333, which defines \xe2\x80\x9c[i]ntelligence activities\xe2\x80\x9d\nto \xe2\x80\x9cmean[] all activities that elements of the Intelligence Community are\n\xc2\xa7 3003(4). The DNI\xe2\x80\x99s charge to \xe2\x80\x9censure compliance with the Constitution and laws of the\nUnited States\xe2\x80\x9d applies to overseeing the \xe2\x80\x9cCentral Intelligence Agency\xe2\x80\x9d and \xe2\x80\x9cother elements of the intelligence community.\xe2\x80\x9d Id. \xc2\xa7 3024(f )(4). Nevertheless, we need not reach\nany definitive conclusion on these matters, because even if foreign election interference\nwould generally fall within the DNI\xe2\x80\x99s purview, the complaint does not concern an \xe2\x80\x9cintelligence activity within the responsibility and authority\xe2\x80\x9d of the DNI under section\n3033(k)(5).\n\n8\n\n\x0c\xe2\x80\x9cUrgent Concern\xe2\x80\x9d Determination by the IG of the Intelligence Community\n\nauthorized to conduct pursuant to this order.\xe2\x80\x9d Exec. Order No. 12333,\n\xc2\xa7 3.5(g) (Dec. 4, 1981) (as amended). The \xe2\x80\x9curgent concern\xe2\x80\x9d statute thus\nnaturally addresses complaints arising out of the \xe2\x80\x9cfunding, administration,\nor operation\xe2\x80\x9d of activities carried out by the intelligence community.\nThis meaning of \xe2\x80\x9cintelligence activities\xe2\x80\x9d is also consistent with the\nICIG\xe2\x80\x99s authorities under other portions of section 3033. Just as an \xe2\x80\x9curgent\nconcern\xe2\x80\x9d must arise in connection with \xe2\x80\x9can intelligence activity within the\nresponsibility and authority\xe2\x80\x9d of the DNI, the ICIG\xe2\x80\x99s jurisdiction and reporting obligations are keyed to those \xe2\x80\x9cprograms and activities within the responsibility and authority of \xe2\x80\x9d the DNI. 50 U.S.C. \xc2\xa7 3033(b)(1), (b)(3)(A),\n(b)(4)(A), (d)(1), (e)(1), (e)(2), (g)(2)(A), (k)(1)(B)(vii), (k)(2)(A). That\nlanguage parallels the language that commonly defines the purview of\ninspectors general. See IG Act \xc2\xa7 4(a)(1), 5 U.S.C. app. (generally authorizing inspectors general to conduct investigations \xe2\x80\x9crelating to the programs and operations\xe2\x80\x9d of the agency). Such language has been consistently construed to permit inspectors general to oversee an agency\xe2\x80\x99s\nimplementation of its statutory mission, but not to extend to performing\nthe agency\xe2\x80\x99s mission itself. See Inspector General Authority to Conduct\nRegulatory Investigations, 13 Op. O.L.C. 54, 58\xe2\x80\x9367 (1989).\nConsistent with that view, the D.C. Circuit concluded that the Department of Transportation\xe2\x80\x99s inspector general exceeded his authority when\nhe \xe2\x80\x9cinvolved himself in a routine agency investigation\xe2\x80\x9d as opposed to \xe2\x80\x9can\ninvestigation relating to abuse and mismanagement in the administration\nof the DOT or an audit of agency enforcement procedures or policies.\xe2\x80\x9d\nTruckers United for Safety v. Mead, 251 F.3d 183, 189\xe2\x80\x9390 (D.C. Cir.\n2001). The Fifth Circuit reached a similar conclusion regarding an inspector general\xe2\x80\x99s authority to engage in regulatory compliance investigations,\nexpressly endorsing the approach taken by this Office\xe2\x80\x99s 1989 opinion.\nSee Burlington N. R.R. Co. v. Office of Inspector General, 983 F.2d 631,\n642\xe2\x80\x9343 (5th Cir. 1993). Similarly here, the ICIG has the authority to\nreview the DNI\xe2\x80\x99s exercise of his responsibility to coordinate and oversee\nthe activities of the intelligence community\xe2\x80\x94including, for instance,\nreviewing whether the DNI has appropriately discharged any authorities\nconcerning preventing foreign election interference. But the ICIG does\nnot himself have the authority to investigate election interference by\nforeign actors, because such an investigation would not involve an activity or program of the intelligence community under the DNI\xe2\x80\x99s supervision.\nWe do not believe that the subjects of \xe2\x80\x9curgent concern\xe2\x80\x9d reports to the\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nICIG are broader than other matters that fall within the investigative and\nreporting authority of the ICIG.\nIn establishing the office of the ICIG, Congress created an accountable\nand independent investigator who, subject to the general supervision of\nthe DNI, would review the activities of members of the intelligence community. The ICIG is charged with \xe2\x80\x9cconduct[ing] independent investigations, inspections, audits, and reviews on programs and activities within\nthe responsibility and authority\xe2\x80\x9d of the DNI. 50 U.S.C. \xc2\xa7 3033(b)(1). The\nICIG is also charged with overseeing and uncovering wrongdoing in the\noperations of programs under the DNI\xe2\x80\x99s supervision. But the ICIG\xe2\x80\x99s\nresponsibility \xe2\x80\x9cto promote economy, efficiency, and effectiveness\xe2\x80\x9d in the\nadministration of such programs, and \xe2\x80\x9cto prevent and detect fraud and\nabuse,\xe2\x80\x9d id. \xc2\xa7 3033(b)(2), must necessarily concern the programs themselves. Although the DNI and the intelligence community collect intelligence against foreign threats, the ICIG\xe2\x80\x99s responsibility is to watch the\nwatchers in the performance of their duties, not to investigate and review\nmatters relating to the foreign intelligence threats themselves. 8\nThroughout section 3033, the assumption, sometimes explicit and\nsometimes tacit, is that the ICIG\xe2\x80\x99s authority extends to the investigation\nof U.S. government intelligence activities, not to those foreign threats that\nare themselves the concerns of the intelligence community. Thus, the\nICIG has a statutory right of \xe2\x80\x9caccess to any employee, or any employee\nof a contractor, of any element of the intelligence community.\xe2\x80\x9d Id.\n\xc2\xa7 3033(g)(2)(B). Similarly, the ICIG should inform the congressional\nintelligence committees when an investigation \xe2\x80\x9cfocuses on any current or\nformer intelligence community official who\xe2\x80\x9d holds certain high-ranking\npositions, id. \xc2\xa7 3033(k)(3)(A)(ii) (emphasis added), or when a matter\nrequires a report to the Department of Justice of \xe2\x80\x9cpossible criminal con8 To the extent relevant, the legislative history and statutory findings confirm that the\nprovision relates only to problems within the intelligence community. In giving the ICIG\njurisdiction to investigate \xe2\x80\x9cintelligence activities\xe2\x80\x9d within the DNI\xe2\x80\x99s purview, Congress\nexplained that it \xe2\x80\x9cbelieve[d] that an IC/IG with full statutory authorities and independence\ncan better ensure that the ODNI identifies problems and deficiencies within the Intelligence Community.\xe2\x80\x9d H.R. Rep. No. 111-186, at 70\xe2\x80\x9371 (2009) (emphasis added). Similarly,\nin establishing the \xe2\x80\x9curgent concern\xe2\x80\x9d procedures in the IG Act, Congress made clear that\nthe provision was designed to address \xe2\x80\x9cwrongdoing within the Intelligence Community.\xe2\x80\x9d\nIntelligence Community Whistleblower Protection Act of 1998, Pub. L. No. 105-272,\ntit. VII, \xc2\xa7 701(b)(4), 112 Stat. 2396, 2413, 2414 (emphasis added).\n\n10\n\n\x0c\xe2\x80\x9cUrgent Concern\xe2\x80\x9d Determination by the IG of the Intelligence Community\n\nduct by [such] a current or former [intelligence-community] official,\xe2\x80\x9d id.\n\xc2\xa7 3033(k)(3)(A)(iii). The ICIG\xe2\x80\x99s reporting responsibilities, however, do\nnot concern officials outside the intelligence community, let alone the\nPresident.\nIn this case, the conduct that is the subject of the complaint does not\nrelate to an \xe2\x80\x9cintelligence activity\xe2\x80\x9d under the DNI\xe2\x80\x99s supervision. The\ncomplainant alleges that the President made an inappropriate or potentially unlawful request on a routine diplomatic call with the Ukrainian president. But the President is not a member of the intelligence community, see\nid. \xc2\xa7 3003(4), and his communication with a foreign leader involved no\nintelligence operation or other activity aimed at collecting or analyzing\nforeign intelligence. To the extent that the complaint warrants further\nreview, that review falls outside section 3033(k)(5), which does not\ncharge the ICIG (let alone every intelligence-community employee) with\nreporting on every serious allegation that may be found in a classified\ndocument. To the contrary, where the ICIG learns of a credible allegation\nof a potential criminal matter outside the intelligence community, the\nICIG should refer the matter to the Department of Justice, consistent with\n28 U.S.C. \xc2\xa7 535.\nWe recognize that conduct by individuals outside of the intelligence\ncommunity, or outside the government, can sometimes relate to \xe2\x80\x9cthe\nfunding, administration, or operation of an intelligence activity.\xe2\x80\x9d 50\nU.S.C. \xc2\xa7 3033(k)(5)(G)(i). For instance, if an alleged violation of law\ninvolves a non-agency party who conspired with a member of the intelligence community or who perpetrated a fraud on an agency within the\nDNI\xe2\x80\x99s authority, that may well relate to \xe2\x80\x9cthe funding, administration, or\noperation of an intelligence activity\xe2\x80\x9d because it would directly impact\nthe operations or funding of the agency or its personnel. In 1990, thenActing Deputy Attorney General William Barr acknowledged similar\ninstances in which inspectors general could investigate \xe2\x80\x9cexternal parties.\xe2\x80\x9d\nLetter for William M. Diefenderfer, Deputy Director, Office of Management and Budget, from William P. Barr, Acting Deputy Attorney General,\nat 2\xe2\x80\x933 (July 17, 1990). None of those circumstances, however, is present\nhere. The alleged conduct at issue concerns actions by the President\narising out of confidential diplomatic communications with the Ukrainian\npresident. Such matters simply do not relate to \xe2\x80\x9cthe funding, administration, or operation of an intelligence activity within the responsibility and\nauthority\xe2\x80\x9d of the DNI. 50 U.S.C. \xc2\xa7 3033(k)(5)(G)(i).\n11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nIII.\nFor the reasons set forth above, we conclude that the complaint submitted to the ICIG does not involve an \xe2\x80\x9curgent concern\xe2\x80\x9d as defined in 50\nU.S.C. \xc2\xa7 3033(k)(5)(G). As a result, the statute does not require that the\nDNI transmit the complaint to the intelligence committees. Consistent\nwith 28 U.S.C. \xc2\xa7 535, however, the ICIG\xe2\x80\x99s letter and the attached complaint have been referred to the Criminal Division of the Department of\nJustice for appropriate review.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n12\n\n\x0c'


b'January 11, 1978\n\n78-1\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, CONSUMER\nPRODUCT SAFETY COMMISSION\nConsumer Product Safety Commission\xe2\x80\x94\nFormer Officers and Employees\xe2\x80\x94 Accepting\nPrivate Employment\n\nThis is in response to your inquiry whether \xc2\xa7 4(g)(2) of the Consumer\nProduct Safefv Act, 86 Stat. 1210-11, as amended, 15 U.S.C. \xc2\xa7 2053(g)(2)\n(1977 Supp.), bai\xe2\x80\x9e a Consumer Product Safety Commission employee from\naccepting a position w!*h Montgomery Ward Company.\nSection 4(g)(2) provide, in pertinent part that:\nNo regular officer or employee o f the Commission who was at any\ntime during the 12 months preceding the termination o f his em ploy\xc2\xad\nment with the Commission compensated at a rate in excess of the\nannual rate of basic pay in effect for grade GS-14 of the General\nSchedule, shall accept employment or compensation from any\nmanufacturer subject to this chapter, for a period of 12 months after\nterminating employment with the Commission.\nAs we understand the situation, the employee has been offered a position\nwith Montgomery Ward handling credit-related matters. Montgomery Ward\nstated that the position entails no Commission-related work in the consumer\narea. The em ployee\xe2\x80\x99s grade level is GS-15 and she has been with the\nCommission for over 3 years. She states that during this time she has had no\ndealings with M ontgomery Ward in her capacity as a Commission employee.\nWe understand further that Montgomery Ward is generally known as one of\nthe largest retailers in the country and is not engaged in manufacturing in the\nsense that it makes any of its products. Montgomery Ward, does, however,\nimport approximately 8 \xe2\x80\x9410 percent of its retail consumer products for sale in its\ndepartment stores. This importation gives rise to the problem.\nSection 4(g)(2) only prohibits post-Commission employment with manufac\xc2\xad\nturers; and although Montgomery Ward is not a manufacturer in the usual\nmeaning of that term, \xc2\xa7 3(a)(4), 15 U .S.C . \xc2\xa7 2052(a)(4), of the Act defines a\n1\n\n\x0c\xe2\x80\x9c m anufacturer\xe2\x80\x9d to include \xe2\x80\x9c any person who manufactures or imports a\nconsumer product.\xe2\x80\x9d Therefore, a literal interpretation of the language of\n\xc2\xa7 3(a)(4) would result in M ontgomery W ard\xe2\x80\x99s classification as a \xe2\x80\x9c manufactur\xc2\xad\ner\xe2\x80\x9d for purposes of the Act. On that basis the employee would be barred from\naccepting the position with M ontgomery Ward. We believe, however, that the\npostemployment bar o f \xc2\xa7 4(g)(2) was not intended to be construed in this\nmanner.\nSection 3(a)(4), by including importers within the definition of manufactur\xc2\xad\ners, sought to insure that consum er products would not escape regulation of the\nCommission merely because they were manufactured abroad and imported into\nthe United States. H. Rept. No. 92-1153, 92d C ong., 2d sess. (1972), at 28,\nstates:\n. . . to assure parity of regulation, importers are made subject to the\nsame responsibilities as domestic manufacturers.\nImporters are thus subject to the regulatory authority o f the Commission as are\nmanufacturers. Therefore, a Commission employee could theoretically abuse\nhis or her position to secure the improper advantages condemned in H. Rept.\nNo. 1153, supra, with importers as well as with traditional manufacturers.\nConsequently, \xc2\xa7 4(g)(2) applies to importer-employers with the same force that\nit applies to m anufacturers-employers.\nM ontgomery W ard, however, is only incidentally involved in importation. It\nis in business primarily as a retailer. If a retailer imported but one item, it would\ntechnically fall within the definition o f a m anufacturer under \xc2\xa7 3(a)(4). To bar\nemployment of a form er Commission employee with a retail company that\nimported one insubstantial item would not effectuate the intent behind\n\xc2\xa7.4(g)(2); it would be absurd to assume that a Commission employee could so\nuse his position in this insignificant case as leverage to secure subsequent\nemployment with that company. When the application of a statute\xe2\x80\x99s literal\nlanguage leads to an absurd result, it is generally safe to assume that the result\nis inconsistent with C ongress\xe2\x80\x99 purpose in enacting the statute. United States v.\nBryan, 339 U .S. 323, 338 (1950). Cf. United Stales v. Brown, 333 U .S. 18,\n25-26 (1948) (penal statutes), and Glickstein v. United States, 222 U.S. 139,\n142-43 (1911). Application o f the literal language o f the Act to the above\nhypothetical would lead to such a result.\nNonetheless, there necessarily comes a point when a growing importation\nbusiness o f a retail com pany reaches a level of importation such that the\ncompany must be considered an importer, and thus a manufacturer for the\npurposes o f \xc2\xa7 4(g)(2). Given the particular facts of this case, we believe that\nMontgomery W ard has not yet reached that p o in t.1\n\n\'W e think it im portant to note that in the present case the em ployee has no dealings with\nM ontgom ery W ard in her capacity as a C om m ission em ployee. Further, she will not be working\nwith the im porting arm o f that com pany. G iven these facts, we believe that she would be working\nfor M ontgom ery W ard-the-retailer and not M ontgom ery W ard-the-im porter. This distinction,\nwhich we think m eaningful in the case at hand, might becom e artificial and im practicable if the\nim portation business increased so that it were no longer incidental to the retail business.\n\n2\n\n\x0cApart from the above, it has been suggested that the failure of \xc2\xa7 4(g)(2) to\nmake explicit reference to retailers was inadvertent, because the legislative\nintent was to prevent persons from using a Commission position to secure em \xc2\xad\nployment or future clients from the \xe2\x80\x9c regulated industry,\xe2\x80\x9d and because the\nterm \xe2\x80\x9c regulated industry\xe2\x80\x9d in its common usage encompasses retailers as well\nas manufacturers.2 We disagree. The pertinent legislative history of \xc2\xa7 4(g)(2)\nstates that the section was designed to\n. . . assure that persons will not seek employment with the agency or\nuse their Federal office as a means of subsequently gaining em ploy\xc2\xad\nment in the regulated industry or as a means of acquiring members of\nindustry as future clients. H. Rept. No. 92-1153, supra, at 30.\nA fair reading of the legislative history reveals that the term \xe2\x80\x9c industry\xe2\x80\x9d was\nintended to include only manufacturers. In H. Rept. No. 1153, supra, at 26, the\nHouse Committee on Interstate and Foreign Commerce stated:\nIn addition to the need to establish comprehensive and effective\nregulation over the safety of unreasonably hazardous consumer\nproducts, there is a need to insure that the procedures relating to\nconsumer products are fair to both industry and consumers. The\nCommittee heard extensive testimony from manufacturers and trade\nassociations documenting some of the potential difficulties that might\nbe faced in complying with the regulations of a product safety\nagency. This testimony convinces the Committee that it is essential to\nestablish both an effective and fair product safety program, impacting\nto the minimum practicable on the manufacturing process. In\naddition, an effective consumer safety program must insure an\nadequate opportunity for participation and judicial review by con\xc2\xad\nsumers and regulated industries. [Emphasis added.]3\nThe above quotation indicates that manufacturers were the relevant entities in\nthe \xe2\x80\x9c regulated industry\xe2\x80\x9d to which the Committee refers. Therefore, we can\ndiscover no inconsistency in the legislative history in Congress\xe2\x80\x99 clear intent to\nomit \xe2\x80\x9c retailers\xe2\x80\x9d from the coverage o f \xc2\xa7 4(g)(2).\nA review of the language o f the Act itself is also helpful in ascertaining\ncongressional intent on this point. The Act refers to both \xe2\x80\x9c retailers\xe2\x80\x9d and\n\xe2\x80\x9c manufacturers\xe2\x80\x9d in other provisions4 while \xc2\xa7 4(g)(2) omits any reference to\nretailers. Thus, we can infer that retailers were not intended to be covered\nby that section. This view of statutory construction has found expression in the\n2The Com m issioner has expressed this view. A lthough he is o f the opinion that \xc2\xa7 4(g)(2)\nintended to extend the postem ploym ent bar to those who engage in any im porting he would not\nenforce this provision in this case for equitable reasons. W hile it is clear that \xc2\xa7 4(g)(2) cannot apply\nto retailers since they are not referred to in that section, we understand the C om m issioner\'s\nargum ent to be that any retailer who may technically com e within the definition o f "m an u factu rer"\nin \xc2\xa7 3(a)(4) should be considered a barred em ployer because Congress intended to include retailers\nin the prohibition of \xc2\xa7 4(g)(2).\n*See also H. Rept. No. 1153, supra, pp. 22, 23.\n4S e e , e .g ., 15 U .S .C . \xc2\xa7\xc2\xa7 2055(b)(1), 2064(b) through 2064(e) (\xc2\xa7 2064(d) am ended by Pub. L.\nNo. 94-284, 90 Stat. 508, as codified in 15 U .S .C . \xc2\xa7 2064(d)).\n\n3\n\n\x0cmaxim expressio unius est exclusio alterius. Sutherland, Statutory Construc\xc2\xad\ntion, \xc2\xa7 47.23 (4th ed.,1973), in explaining this maxim, states:\nAs the maxim is applied to statutory interpretation where a form of\nconduct, the manner o f its performance and operation, and the\npersons and things to which it refers are designated, there is an\ninference that all omissions should be understood as exclusions. . . .\nThe force of the maxim is strengthened by contrast where a thing is\nprovided in one part of the statute and omitted in another.\nThis maxim is particularly appropriate in the present situation. Thus, the\ninference necessarily is that the omission o f retailers from \xc2\xa7 4(g)(2) was\nintentional.\nAs further evidence o f congressional intent respecting \xc2\xa7 4(g)(2), the term\n\xe2\x80\x9c m anufacturer\xe2\x80\x9d is used, without any reference to \xe2\x80\x9c retailers,\xe2\x80\x9d throughout the\nlegislative history of that section.5 This consistency o f omission bolsters the\nargument that those entities were intentionally left out o f \xc2\xa7 4(g)(2).\nIn light of the foregoing, it is our opinion that Congress had no intention of\napplying the prohibition o f \xc2\xa7 4(g)(2), to retailers.\nTherefore, since M ontgomery Ward is primarily in business as a retailer\xe2\x80\x94 an\nentity not subject to the postem ploym ent bar o f \xc2\xa7 4(g)(2)\xe2\x80\x94 the mere fact that it\nengages in the modest amount o f importing as exists here does not automati\xc2\xad\ncally transform it into a barred em ployer under \xc2\xa7 4(g)(2).\n\xe2\x80\x99In our opinion, the employee may accept the position with Montgomery\nWard since \xc2\xa7 4(g)(2) does not apply to the facts o f this particular case.\nL eon U lm an\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n5See H. Rept. No. 92-1153, supra (1972), at 4, 30; H. Conf. Rept. No. 92-1593, 92d C ong., 2d\nsess. (1972), pp. 4-6.\n\n\x0c'


b'Computation of 90-Day Period for Preliminary Investigation\nUnder the Special Prosecutor Act\nThe 90-day period for the Attorney General\xe2\x80\x99s preliminary investigation under the Special\nProsecutor provisions of the Ethics in Government A ct should be computed from the\nday when the specific information is effectively received by the Department o f Justice.\nIn this case, the 90-day period began to run when the Attorney General himself was\napprised of the allegations against the Secretary o f Labor, and ordered the preliminary\ninvestigation commenced.\n\nDecember 21, 1981\nMEMORANDUM OPINION FOR\nTHE ASSOCIATE ATTORNEY GENERAL\nYou have asked for the opinion of this Office concerning the timing\nof the commencement of the 90-day period for the Attorney General\xe2\x80\x99s\npreliminary investigation under the Special Prosecutor provisions of the\nEthics in Government Act of 1978. 28 U.S.C. \xc2\xa7\xc2\xa7 591-598 (Supp. Ill\n1979). More particularly, you have asked whether the 90-day period\ncommences at the moment that the first Department of Justice em\xc2\xad\nployee receives specific information that an official covered by the\nstatute has committed a crime, even if the significance of that informa\xc2\xad\ntion relative to the Special Prosecutor provisions is not appreciated by\nthe individual receiving it, the information is not reported to the A ttor\xc2\xad\nney General, or if the preliminary investigation process has not been\ninitiated until a substantial period of time has elapsed.\nYou have asked this question in connection with allegations regard\xc2\xad\ning the Secretary of Labor that were received by an Organized Crime\nand Racketeering Strike Force attorney and reported to a Strike Force\nChief in New York sometime in September 1981. The information was\nnot. reported to the Criminal Division of the Department of Justice in\nWashington and to the Attorney General until December 1981, when a\npreliminary investigation under the Special Prosecutor provisions was\nimmediately commenced.\nFor the reasons discussed below, we conclude that under the circum\xc2\xad\nstances presented here, the 90-day period should be computed from the\nday when the information was effectively received by the Department\nin Washington and the preliminary investigation actually began.\n397\n\n\x0cDiscussion\n\nThe Special Prosecutor provisions of the Ethics in Government Act\nprovide in pertinent part as follows:\n(a) The Attorney General, upon receiving specific in\xc2\xad\nformation that any of the persons described in section\n591(b) of this title has engaged in conduct described in\nsection 591(a) of this title, shall conduct, for a period not\nto exceed ninety days, such preliminary investigation of\nthe matter as the Attorney General deems appropriate.\n(b)(1) If the Attorney General, upon completion of the\npreliminary investigation, finds that the matter is so un\xc2\xad\nsubstantiated that no further investigation or prosecution\nis warranted, the Attorney General shall so notify the\ndivision of the court specified in section 593(a) of this\ntitle, and the division of the court shall have no power to\nappoint a special prosecutor . . . .\n(c)(1) If the Attorney General, upon completion of the\npreliminary investigation, finds that the matter warrants\nfurther investigation or prosecution, or if ninety days\nelapse from the receipt of the information without a deter\xc2\xad\nmination by the Attorney General that the matter is so\nunsubstantiated as not to warrant further investigation or\nprosecution, then the Attorney General shall apply to the\ndivision of the court for the appointment of a special\nprosecutor . . . .\n28 U.S.C. \xc2\xa7 592. In essence, the text of the statute provides that when the\nAttorney General receives specific information, the Attorney General shall\n\nconduct an investigation for a period not to exceed 90 days and the\nAttorney General shall make certain reports to the court. A strict con\xc2\xad\n\nstruction of this text would lead to the conclusion that the 90-day period\ndoes not begin until the Attorney General himself receives the specific\ninformation. Although standing alone this is a very plausible construction\nof the clause dealing with receipt of the specific information, it is\narguably not as persuasive an interpretation when considered in connec\xc2\xad\ntion with the mandate in the succeeding clause for the Attorney General\nto conduct the preliminary investigation. Clearly, Congress did not\nintend that the Attorney General would personally conduct every aspect\no f the preliminary investigation.1 Since the second clause might be read\n\n1\nIn addition to the strong argument that can be made on the basis of practice and common sense,\nthe legislative history of the statute makes it quite clear that Congress did not anticipate that the\nA ttorney General personally would participate in all aspects of the preliminary investigations required\nby the A ct. See, e.g., S. Rep. No. 170, 95th Cong., 1st Sess. 63 (1977).\n\n398\n\n\x0cgenetically to mean that the Department of Justice should conduct the\npreliminary investigation, it can be argued that this casts doubt upon the\nliteral reading of the term Attorney General in the first clause.\nIn our view, however, there is no real inconsistency in the several\nuses of the term Attorney General in the text of the statute, and we\nhave little doubt that the term connotes and recognizes a personal role\nfor the Attorney General in implementing each phase of the Special\nProsecutor provisions. As we read the text, the statute anticipated that\nthe Attorney General would be apprised of specific information (either\nby his subordinates or by an outside source); that he would immediately\ndirect a preliminary investigation; 2 and that he would make the deter\xc2\xad\nminations required by the Act within 90 days of his receipt of the\ninformation and commencement of the investigation.3\nIn light of the argument that could be made for a different construc\xc2\xad\ntion of the text of the statute, and the importance of adhering closely to\nthe congressional intent, we have also scrutinized the legislative history\nof the statute. We have not found that the legislative history expresses\nany clear congressional intent with respect to whether the 90-day\ninvestigation period commences with the receipt of information by the\nAttorney General or by any other Department of Justice employee.\nHowever, our review of the legislation history has convinced us that\nour position on this question is fully consistent with the principles\nbehind the Special Prosecutor legislation and the specific interests that\nCongress intended to serve by providing for a 90-day preliminary\ninvestigation.\nThe legislative history identifies two somewhat conflicting interests\nto be served by the 90-day preliminary investigation. On the one hand,\nCongress limited the time to conduct a preliminary investigation be\xc2\xad\ncause of a concern that Special Prosecutor matters be resolved\npromptly and credibly by an independent entity. This concern is re\xc2\xad\nflected in the following statement from the Senate report on the bill:\nThe statute contains a time limit on the period permit\xc2\xad\nted for a preliminary investigation because the Committee\n* \xe2\x80\x9cConducting\xe2\x80\x9d an investigation does not necessarily mean physically and personally carrying out\neach and every phase o f the investigation. As you know, federal criminal investigations ordinarily are\nexecuted by persons working under the general supervision and direction of the A ttorney General\npursuant to powers delegated by the Attorney General. See generally, 28 U.S.C \xc2\xa7531 and 28 C F R\n0.55 and 0 85. In the same way, the Attorney General can be said to \xe2\x80\x9cconduct\xe2\x80\x9d a preliminary\ninvestigation under the Special Prosecutor provisions. The common definition of \xe2\x80\x9cconduct\xe2\x80\x9d embraces\nthe concept o f management, direction, or command. See Webster\xe2\x80\x99s Third New International Diction\xc2\xad\nary (1976) s.v. \xe2\x80\x9cconduct.\xe2\x80\x9d\n3 Our interpretation is supported by the reference in 28 U.S.C. \xc2\xa7 594 to the power and authority of\nthe Special Prosecutor, who is expressly given \xe2\x80\x9c full power and independent authority to exercise all\ninvestigative and prosecutorial functions and powers o f the Department o f Justice, the Attorney General,\nand any other officer or employee o f the Department o f Justice\n(Emphasis added.) Had the\nCongress intended that the 90-day preliminary investigation period commence instantly \xe2\x80\x9c upon [the\nreceipt of] specific information\xe2\x80\x9d by any one of the Department\xe2\x80\x99s approximately 52,000 employees, it\ncould have, and we presume it would have, used the language that it used in \xc2\xa7 594.\n\n399\n\n\x0cdid not want serious allegations of criminal wrongdoing\nagainst individuals described in subsection 591(b) to\nremain in the Department of Justice and not be referred\nto the court for the appointment of a temporary special\nprosecutor simply because the Department had not even\nbegun to conduct an investigation of the matter. Similarly,\nthe Committee did not want the Department of Justice to\nconduct the full investigation of serious criminal allega\xc2\xad\ntions against the individuals described in subsection (b) of\nsection 591 since the premise of the statute is that there is\nan institutional conflict of interest for the Department of\nJustice to conduct the investigation and prosecution of\nsuch cases. Therefore, such matters should be referred to\nthe court for the appointment of a special prosecutor as\nsoon as a preliminary investigation has indicated that the\nmatter warrants further investigation and prosecution.\nS. Rep. No. 170, 95th Cong., 1st Sess. 54 (1977).4\nOn the other hand, Congress realized that some period of preliminary\ninvestigation by the Justice Department was necessary to weed out the\nfrivolous cases from those o f substance. See S. Rep. No. 170, supra, at\n54. The preliminary investigation protects the interests of the subject\nofficial in avoiding the appointment of a Special Prosecutor on totally\nunsubstantiated or frivolous allegations. This concern for fairness to the\nsubject was recently reiterated by the Subcommittee on Oversight of\nGovernment Management o f the Senate Governmental Affairs Commit\xc2\xad\ntee when it endorsed a proposed amendment to the Act that would\npermit limited extensions to the 90-day investigation in appropriate\ncircumstances:\nBecause of the serious consequences which a special pros\xc2\xad\necutor appointment has on the subject of the investiga\xc2\xad\ntion, however, the Subcommittee believes that the special\nprosecutor process should not be triggered simply because\nthe Department of Justice has been unable to complete\nthe fact-finding necessary to make a proper determination\nwithin an inflexible time frame.\nSubcommittee on Oversight of Government Management, Senate Gov\xc2\xad\nernmental Affairs, 97th Cong., 1st Sess. 44, Special Prosecutor Provi\xc2\xad\nsions of Ethics in Government Act of 1978 (Comm. Print 1981).\n4 W e recognize that the first sentence of this statement indicates a clear congressional intent that\nthere be no unnecessary or deliberate delay by the Justice Department in initiating preliminary\ninvestigations. However, the last sentence o f the statement makes it equally clear that Congress\nanticipated that there would be some preliminary investigation before a matter is referred to a Special\nProsecutor. W e believe that our construction of the statute makes it possible to achieve both of these\ngoals.\n\n400\n\n\x0cIn balancing these interests, we find that the purposes of the Act are\nbest served by an interpretation that focuses on the effectiveness of the\nnotice received, rather than on the instant of the receipt of the informa\xc2\xad\ntion by any Justice employee. Effective notice, in our view, must be\nnotice sufficient to permit accomplishment of the purposes of the Act.\nFor example, in this case we conclude that the information concerning\nthe Secretary of Labor was not effectively received until December,\nwhen the information reached Washington, and the Attorney General\nordered the preliminary investigation. Prior to this time, the Attorney\nGeneral was incapable of either conducting an investigation or request\xc2\xad\ning a Special Prosecutor because he was unaware of the allegations.\nThis construction guarantees that the subject official will have the\nbenefit of as complete a preliminary inquiry as the Attorney General\ndeems appropriate, within the constraints of the Act, including the 90day investigative time limit. While we recognize that this approach may\nappear to favor the interest in fairness to a subject over the public\ninterest in prompt resort to a Special Prosecutor where the circum\xc2\xad\nstances require it, we believe that this is a proper result in this case,\ngiven the magnitude of each interest and the potential harm to each\nshould full deference be given to the competing interest.5\nWe believe that the construction of the law we have articulated is\nthe most faithful construction of its terms and congressional intent\nunder the circumstances presented. Congress determined that a prelimi\xc2\xad\nnary investigation was necessary in the interest of fairness to the ac\xc2\xad\ncused and as a matter of institutional and public interest to protect\nagainst the appointment of special prosecutors every time a baseless,\nfrivolous, or malicious accusation is made against a government official.\nA 90-day period was considered an appropriate time for such an inves\xc2\xad\n6 O f course, in determining the appropriate length of the preliminary investigation in particular\ncases, the Attorney General is obliged to consider the full facts and give appropriate deference to each\nof these interests. In this case, for example, he must consider the statute of limitations in determining\nwhat portion o f the 90-day investigative period he should utilize. Certainly, an imminent expiration o f\nthe limitations period would increase the weight of the public interest in promptness, in the balance\nagainst the subject\xe2\x80\x99s interest in a fair and proper preliminary investigation.\nAnother factor that the Attorney General should consider in determining the length of this\nparticular preliminary investigation is the possibility of conducting a sufficient and fair inquiry within a\npenod of time as close as possible to 90 days of the Strike Force attorney\xe2\x80\x99s receipt of the information.\nIn the past, the Department has been able to make a Special Prosecutor determination with 90 days o f\nthe first known receipt of specific information by a Department employee. In fact, the Criminal\nDivision admonished its attorneys by memorandum dated April 5, 1979, that \xe2\x80\x9cthe ninety days starts\nrunning when the information is \xe2\x80\x98received\xe2\x80\x99 by the Department (presumably including the FBI).\xe2\x80\x9d We\nconcur completely with this admonition to employees to conduct themselves as if their receipt of any\ninformation that might trigger the Act marks the commencement of the 90-day period. While this\nCriminal Division memorandum does not purport to be a Department of Justice legal opinion, and\ndoes not, in our view, accurately state the law, it is a sound and prudent management requirement. It\nis in the interest of the Department, the subject official, and the public that the Department react\nquickly to any allegations of misconduct by high government officials.\nFinally, you should be aware of another legal opinion prepared by this Office which discusses, for\npurposes o f applying the \xe2\x80\x9ceffective date\xe2\x80\x9d provisions of the Act, the time when information should be\ndeemed received by the Department. In the situation at issue there, the information was received in\npieces, and the problem was to determine when it became specific information sufficient to trigger the\nAct. There was no question of effective notice in that case.\n\n401\n\n\x0ctigation. Congress vested in the Attorney General responsibility for\nconducting an appropriate investigation to eliminate those charges,\nwhich are \xe2\x80\x9cso unsubstantiated that no further investigation or prosecu\xc2\xad\ntion is warranted.\xe2\x80\x9d It would be destructive of this intent\xe2\x80\x94and contrary\nto the plain words of the statute\xe2\x80\x94to construe the law in a way which\ncan require the appointment of a Special Prosecutor before any investi\xc2\xad\ngation at all or after an unreasonably brief interval. Ninety days, or at\nleast something close to it, should be available to the Attorney General\nfor the preliminary investigation.\nOur view concerning the commencement of the 90-day preliminary\ninvestigation period should not be construed as endorsing any system\nthat would intentionally insulate the Attorney General from prompt\nnotice of information triggering the requirements of the law, or approv\xc2\xad\ning any delay in the commencement of the period in a factual situation\nin which the Attorney General would be considered as having con\xc2\xad\nstructive notice of such information.\nIn reaching these conclusions, we have given considerable attention\nto the responsibility of all Department employees to see that the laws\nare faithfully executed. Although we are confident that the difficulties\nin implementing the statute in this case were the product of inattention,\nrather than bad faith, we think that the Attorney General may wish to\nconsider taking corrective action to prevent such errors in the future.\nAs you know, the Deputy Attorney General and the Criminal Division\nhave in the past sent various directives to Department personnel de\xc2\xad\nsigned to facilitate the prompt reporting of information, and the expedi\xc2\xad\ntious handling of Special Prosecutor matters (see note 5, supra). At the\nleast, the Department should reiterate its advice to employees on this\nsubject. We may also wish to explore the feasibility of a regulation that\nwould delegate functions and set forth procedures for implementing the\nSpecial Prosecutor provisions. We would be happy to assist in such a\nproject, should it be undertaken.\nT h e o d o r e B. O l s o n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n402\n\n\x0c'