b'Applicability of Executive Privilege to\nIndependent Regulatory Agencies\nA case cannot be made for absolute exclusion of the so-called independent regulatory agencies from\nthe doctrine of executive privilege.\nAlthough free from executive control in the exercise of quasi-legislative and quasi-judicial functions,\nindependent regulatory agencies frequently exercise important functions executive in nature.\nAs to the latter functions, the doctrine of executive privilege is as much applicable to regulatory\ncommissions as to the executive departments and officers of the government.\n\nNovember 5, 1957\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nThis is with reference to your memorandum of June 29, 1957, concerning the\nquestion raised by Senator Saltonstall in connection with the recent hearings on\nthe nomination of J. Sinclair Armstrong as Assistant Secretary of the Navy as to\nthe applicability of the doctrine of executive privilege to members of \xe2\x80\x9cindependent\xe2\x80\x9d regulatory agencies, such as the Securities and Exchange Commission\n(\xe2\x80\x9cSEC\xe2\x80\x9d). In this regard you have asked us to review Mr. Armstrong\xe2\x80\x99s testimony\nand the earlier memorandum* originating from this Office which deals with the\nquestion. We have proceeded on the assumption, which you have asked us to\nmake, that the President has authorized assertion of the privilege with respect to a\ndemand for disclosure by a committee of Congress.\nI. Summary\nBecause the subject is not only important and controversial but also obscure it\nhas been necessary to canvass and discuss a considerable amount of material. This\ndiscussion is set out in detail below. Because of its length we have deemed it\nhelpful to precede the discussion with the following summary:\nThe issue in the hearing on Mr. Armstrong\xe2\x80\x99s nomination was whether Mr.\nArmstrong as chairman of the SEC had properly asserted in 1955 the right to\nwithhold from an investigating committee of the Senate communications between\nhimself and the Assistant to the President, Governor Adams, concerning a\nproceeding before the SEC for the approval of the financing of the Dixon-Yates\ncontract. Mr. Armstrong took that position upon the basis of the President\xe2\x80\x99s letter\nof May 17, 1954, to the Secretary of Defense advising him that the public interest\nrequired that, in testifying before congressional committees, employees of the\n*\nEditor\xe2\x80\x99s Note: The referenced memorandum is understood to be Assertion of Executive Privilege\nby the Chairman of the Atomic Energy Commission, 1 Op. O.L.C. Supp. 468 (Jan. 5, 1956), included\nlater in this volume and discussed in the body of this memorandum opinion at page 180.\n\n170\n\n\x0cApplicability of Executive Privilege to Independent Regulatory Agencies\n\nExecutive Branch must not disclose their internal communications. Finally, upon\nwritten advice from the Attorney General, Mr. Armstrong disclosed the substance\nof the communications. The Attorney General stated that the directive of the\nPresident was inapplicable to a quasi-judicial proceeding such as was involved\nbefore the SEC. He assumed, however, that the President\xe2\x80\x99s directive extended to\nthe internal affairs of the SEC and to communications between the SEC and the\nExecutive Branch regarding administrative matters.\nAt the hearing on Mr. Armstrong\xe2\x80\x99s nomination one Senator (Senator Russell)\nwent so far as to question whether the SEC as an independent agency had any\nright even to consult the Attorney General on such matters. Senator Saltonstall\nsaid he would not attempt to pass on the question.\nIn our earlier memorandum, which dealt with the assertion of privilege by\nAdmiral Strauss as chairman of the Atomic Energy Commission (\xe2\x80\x9cAEC\xe2\x80\x9d) with\nrespect to conversations with the White House concerning the repudiation of the\nDixon-Yates contract, the position was taken that the President\xe2\x80\x99s letter was\napplicable, whether or not the AEC as a technical matter was part of the executive\nbranch, since in the Dixon-Yates matter the AEC was exercising an executive\nfunction.\nSome of the so-called independent regulatory commissions appear to take the\nview that whether or not the doctrine of executive privilege applies in their case\ndepends upon the nature of the function involved. They assert that they are entitled\nto invoke the privilege where the communication relates to their executive or\nadministrative functions but not if it involves their quasi-legislative or quasijudicial functions. Other agencies, such as the Federal Trade Commission and the\nInterstate Commerce Commission, take the position, without attempting to\ndifferentiate between their functions, that as \xe2\x80\x9carms of Congress\xe2\x80\x9d they are not\nbound by any doctrine of executive privilege.\nSome legislative analysts of the problem, denying that the Executive Branch\ncan itself properly assert the privilege, state that a fortiori an independent\nregulatory body cannot assert it. But apart from this broad proposition, they argue\nmore narrowly that such bodies, in the information phases of their activities, are\nwholly independent from direction by the Executive Branch, and apparently they\nmake no differentiation on the basis of whether the information relates to executive, quasi-legislative, or quasi-judicial functions.\nNo federal court has passed upon the precise question here involved. The decision which most nearly bears on the question is Humphrey\xe2\x80\x99s Executor v. United\nStates, 295 U.S. 602, decided in 1935. Those who deny the applicability of the\ndoctrine of executive privilege to the so-called independent regulatory agencies\nplace great reliance on Humphrey\xe2\x80\x99s Executor. In that case the Supreme Court held\nthat the independent status of the Federal Trade Commission prevented the\nPresident from removing its members within his uncontrolled discretion. But we\nthink the case cannot be invoked as a complete charter of independence of the\n\n171\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nregulatory commissions from executive control. The Court itself noted one\nexception, namely, that the President was vested with the power to select its\nmembers. Accordingly, even under Humphrey\xe2\x80\x99s Executor we believe that the\ndoctrine of executive privilege could be properly asserted, for example, as to\nconversations between the President and members of an independent regulatory\nagency concerning the appointment of members. Moreover, where the agency has\nimportant executive functions it is our view that Humphrey\xe2\x80\x99s Executor cannot be\ncited to deny the existence of executive privilege at least where it relates to the\nexercise of such functions. In some areas Congress has itself subjected the\nindependent regulatory commissions to executive control. For example, the\nPresident has been authorized to apply the federal employee\xe2\x80\x99s security program to\nall departments and agencies of the government. This includes the regulatory\ncommissions. Hence, it is our opinion that they are also subject to the requirements of secrecy governing employee security matters. The President\xe2\x80\x99s power to\nremove commission members for inefficiency, neglect of duty, or malfeasance\n(Federal Trade Commission, Interstate Commerce Commission, Atomic Energy\nCommission, Civil Aeronautics Board) implies that he may exercise a certain\namount of managerial authority over the commission. It would seem to follow that\nin this area the commission would be obligated to respect the President\xe2\x80\x99s wishes as\nto the release of communications between the commission and the President of his\nstaff. That the independent regulatory commissions are not entirely divorced from\nthe Executive Branch is further supported by the established practice which\nregards them as entitled to obtain formal legal advice from the Attorney General.\nWhile the question of executive privilege has been the subject of considerable\nprofessional comment, no one has centered upon application of the privilege to the\nindependent regulatory commission. The most comprehensive study and analysis\nof the relationship between the independent regulatory agencies and the President\nis that made by Professor Robert E. Cushman in The Independent Regulatory\nCommissions, published in 1941. The conclusions reached by Professor Cushman\nsupport those reached by us above.\nWe conclude in short that no valid case can be stated for excluding absolutely\nthe so-called independent regulatory agencies from the doctrine of executive\nprivilege. In many respects their functions and operations are subject to executive\ncontrol. In such cases the doctrine of executive privilege should apply to the\nindependent regulatory commissions to the same extent that it applies to the\nexecutive departments and officers of the federal government.\nII. The Armstrong Testimony\nOn May 14, 1957, a hearing was held before the Senate Committee on Armed\nServices on the nomination of J. Sinclair Armstrong to be an Assistant Secretary\nof the Navy. Mr. Armstrong was interrogated by Senator Kefauver concerning his\ntestimony in 1955 before the Subcommittee of the Senate Judiciary Committee on\n\n172\n\n\x0cApplicability of Executive Privilege to Independent Regulatory Agencies\n\nAntitrust and Monopoly regarding certain aspects of the Dixon-Yates contract.\nNomination of J. Sinclair Armstrong to Be Assistant Secretary of the Navy:\nHearing Before the S. Comm. on Armed Services, 85th Cong. 6\xe2\x80\x9336 (1957) (\xe2\x80\x9c1957\nHearing\xe2\x80\x9d). Senator Kefauver stated that on the basis of Mr. Armstrong\xe2\x80\x99s conduct\nat that time he would have to oppose Mr. Armstrong\xe2\x80\x99s nomination:\nThe grounds on which I oppose Mr. Armstrong\xe2\x80\x99s confirmation\narise out of his handling of certain important aspects of the DixonYates case, in his role as Chairman of the Securities and Exchange\nCommission.\nId. at 6\xe2\x80\x937.\nA. Armstrong\xe2\x80\x99s Testimony Before the Senate Subcommittee on\nAntitrust and Monopoly\nIn 1955 the Subcommittee on Antitrust and Monopoly initiated an investigation\nof the role of the First Boston Corporation, through one of its officers, Adolphe H.\nWenzell, in the negotiations leading up to the Dixon-Yates contract. Mr. Wenzell\nhad been retained by the Bureau of the Budget as a consultant in connection with\ncertain features of the contract; it was claimed that there might be a possible\nconflict of interest arising from Wenzell\xe2\x80\x99s position with the First Boston Corporation.\nAt this time Armstrong was Chairman of the Securities and Exchange Commission, before which were pending applications of the Dixon-Yates companies\nfor approval of their proposed financing of the contract project. On June 27, 1955,\nSenator Kefauver, who was a member of the subcommittee, wrote Mr. Armstrong\ninquiring as to the reasons for postponement of the hearings on the applications:\nOn Monday, June 13, representatives of the First Boston Corp.\nand Adolphe H. Wenzell, formerly a vice president of the corporation, were scheduled to testify before the SEC in connection with the\nfinancing plans of the Mississippi Valley Generating Co., better\nknown as the Dixon-Yates contract.\nWithout notice or explanation the Commission directed the trial\nexaminer to suspend the taking of testimony. The hearings were later\nresumed on Thursday, June 16, still with no explanation as to the\nreason for the cancellation.\nI should like to inquire from you whether any request or representation was made to the Commission with respect to the suspension of\nthe hearings. I should also like to inquire whether any representation\nwas made to the Commission by any official or representative of the\n\n173\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nGovernment asking that the hearing scheduled for June 13 can be\ncanceled, or whether such cancellation was discussed by the Commission with any officials or representatives of any other branch of\nthe Government.\nQuoted in Power Policy\xe2\x80\x94Dixon-Yates Contract: Hearings Before the Subcomm.\non Antitrust and Monopoly of the S. Comm. on the Judiciary, 84th Cong., pt. 1, at\n326 (1956) (\xe2\x80\x9c1955 Hearing\xe2\x80\x9d). On July 11, 1955, Mr. Armstrong advised Senator\nKefauver that the SEC could not supply such information because, the application\nstill being before the Commission, \xe2\x80\x9cwe do not believe that it would be consistent\nwith the orderly conduct of the administrative processes of this agency to subject\nto concurrent congressional review the manner in which this Commission is\ndischarging its quasi-judicial functions in this proceeding\xe2\x80\x9d; and \xe2\x80\x9cthis Commission\nis bound to respect the privileged and confidential nature of communications\nwithin the executive branch of the Government on the principles as set forth in the\nPresident\xe2\x80\x99s letter of May 17, 1954, to the Secretary of Defense.\xe2\x80\x9d Quoted in id. at\n327.1\nFollowing the cancellation of the Dixon-Yates contract by the President, the\nproceedings before the SEC lapsed. Mr. Armstrong appeared before the subcommittee on July 12, 1955. He declined, however, to disclose any conversations he\nmight have had with other officials in the executive branch concerning the\npostponement, stating that he was forbidden by the President\xe2\x80\x99s letter of May 17,\n1954, to make such disclosure. Id. at 330\xe2\x80\x9334.2 When Senator Kefauver pointed out\n1\nThe President in this letter, referring to an attached memorandum of the Attorney General, stated\nthat \xe2\x80\x9cthroughout our history the President has withheld information whenever he found that what was\nsought was confidential or its disclosure would be incompatible with the public interest or jeopardize\nthe safety of the Nation.\xe2\x80\x9d 100 Cong. Rec. 6621 (1954); Letter to the Secretary of Defense Directing\nHim to Withhold Certain Information from the Senate Committee on Government Operations, Pub.\nPapers of Pres. Dwight D. Eisenhower 483, 483 (May 17, 1954). And, the President continued,\n\nBecause it is essential to efficient and effective administration that employees of\nthe Executive Branch be in a position to be completely candid in advising with each\nother on official matters, and because it is not in the public interest that any of their\nconversations or communications, or any documents or reproductions, concerning\nsuch advice be disclosed, you will instruct employees of your Department that in all of\ntheir appearances before the Subcommittee of the Senate Committee on Government\nOperations regarding the inquiry now before it they are not to testify to any such conversations or communications or to produce any such documents or reproductions.\nThis principle must be maintained regardless of who would be benefited by such disclosures.\nI direct this action so as to maintain the proper separation of powers between the\nExecutive and Legislative Branches of the Government in accordance with my responsibilities and duties under the Constitution. This separation is vital to preclude the\nexercise of arbitrary power by any branch of the Government.\nId. [Editor\xe2\x80\x99s Note: See also 100 Cong. Rec. 6621\xe2\x80\x9323 (memorandum of Attorney General).]\n2\nMr. Armstrong declined to answer, among others, the following question put by Senator Kefauver:\n\n174\n\n\x0cApplicability of Executive Privilege to Independent Regulatory Agencies\n\nthat the President\xe2\x80\x99s letter was directed to the Secretary of Defense, the head of an\nexecutive department, whereas the SEC was \xe2\x80\x9ca quasi-judicial agency\xe2\x80\x9d and \xe2\x80\x9cwe are\ninquiring about . . . alleged interference, with the judicial work of the Securities\nand Exchange Commission,\xe2\x80\x9d Mr. Armstrong responded that the President\xe2\x80\x99s letter\napplied to administrative functions of the Commission, which included the\nscheduling of hearings. Id. at 342.\nThereafter, the Attorney General advised Mr. Armstrong in response to the\nlatter\xe2\x80\x99s request as follows:\nWith regard to your statement that the Commission is bound to\nrespect the privileged and confidential nature of communications\nwithin the executive branch of the Government on the principles as\nset forth in the President\xe2\x80\x99s letter of May 17, 1954, to the Secretary of\nDefense, I concur. Any communication within the Securities and\nExchange Commission among Commissioners or the Commissioners\nand employees is privileged and need not be disclosed outside of the\nagency. Likewise, any communication from others in the executive\nbranch to members of the Commission or its employees with respect\nto administrative matters comes within the purview of the President\xe2\x80\x99s letter of May 17, 1954.\nYou inquired specifically whether when a proceeding is pending\nbefore the Commission a request to the Commission for an adjournment by someone in the executive branch outside the Commission is\nlikewise covered. Because such a proceeding is quasi-judicial in\nnature, it is my opinion that such a request would not be covered by\nthe President\xe2\x80\x99s letter of May 17, 1954, and once the proceeding is no\nlonger pending before the Commission such information should,\nupon request, be made available by the Commission to an appropriate congressional committee.\nId. at 379 (quoting letter of Attorney General dated July 12, 1955). Thereupon Mr.\nArmstrong revealed that the request for adjournment came from Governor Adams,\n\n[D]id you receive any communication or did you talk with anyone in the White\nHouse, Mr. Hughes, Mr. Dodge, Mr. Sherman Adams, or Mr. Bernard Shanley, Mr.\nBrownell, or anyone else, first advising you that a vote was coming up in the House, a\nbig administration matter in a close vote, that this testimony might affect what was going to go on the Hill?\nThat is all I am asking, just whether there was any interference with the hearing or\nnot.\nId. at 336. There was pending before the House a bill providing for a $6,500,000 appropriation to\nconstruct a transmission line between the proposed Dixon-Yates plant and the existing TVA power\nlines. Id. at 417\xe2\x80\x9322.\n\n175\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nAssistant to the President, in the form of a telephone call on Saturday, June 11. Id.\nMr. Adams stated that the reason for the request was to permit \xe2\x80\x9ccertain Government attorneys\xe2\x80\x9d who were out of the city to determine whether they should object\nto the testimony of Mr. Wenzell. Id. at 380. Armstrong testified that upon\ninforming the Commission of Governor Adams\xe2\x80\x99 request the Commission voted to\ncontinue the hearings. Id. He further testified that on June 15, 1955, Governor\nAdams advised him that \xe2\x80\x9cthe Government attorneys\xe2\x80\x9d had decided not to participate, and that upon so informing the Commission it directed the hearings to\nresume. Id.\nIn the interrogation of Mr. Armstrong concerning the meaning of the Attorney\nGeneral\xe2\x80\x99s letter, both Senators Kefauver and O\xe2\x80\x99Mahoney agreed that a privilege\nexisted as to communications within a Commission by members of the Commission with the employees. Id. at 383\xe2\x80\x9384, 387\xe2\x80\x9388. However, Mr. Armstrong, on the\nbasis of the President\xe2\x80\x99s letter of May 17, 1954, refused to state whether or not his\nconversation with Governor Adams covered the bill pending before the House:\n[T]he question that you ask . . . has to do with a legislative matter in\nCongress and nothing to do with the pending proceeding before the\nSecurities and Exchange Commission. . . . I am relying on the opinion of the Attorney General.\nId. at 419\xe2\x80\x9320. The subcommittee (Senators Kefauver, O\xe2\x80\x99Mahoney, and Langer)\nthen asked Mr. Armstrong to obtain an opinion from the Attorney General as to\nwhether the SEC would be permitted to make\na full, detailed, and complete disclosure of all meetings, all conferences, all conversations, no matter where or when they took place, so\nlong as they relate to the Dixon-Yates deal, and are outside of the\npurely administrative or housekeeping duties of the Commission as\ndefined, and in purview of the Reorganization Act.\nThis is the information we want and this is the clearance we hope\nMr. Armstrong will obtain from the Attorney General.\nThe investigation being conducted by this committee goes to the\nquestion of outside influence or alleged corruption in the DixonYates deal. This committee wants to find out how far this outside influence or corruption went, what agencies of the Government were\ninvolved, and what influence or pressure, if any, was brought to bear\non a quasi-judicial agency with statutory responsibilities under the\nPublic Utility Holding Company Act.\nIn these circumstances, there can be no privilege in the judicial\nproceedings. . . .\n\n176\n\n\x0cApplicability of Executive Privilege to Independent Regulatory Agencies\n\nId. at 429.3\nAt this point the hearing was adjourned to permit Mr. Armstrong to consult the\nAttorney General. He did so4 and, upon resumption of the hearing on July 20,\n1955, he testified that he was prepared to testify concerning the above matters:\n\xe2\x80\x9cEverything that I know about, I am prepared to testify to in that regard.\xe2\x80\x9d Id. at\n624. He then revealed that Governor Adams in connection with the request for a\ncontinuance of the SEC hearing had mentioned the pending appropriation bill, to\nwhich he replied: \xe2\x80\x9cWell, I don\xe2\x80\x99t know anything about that. It doesn\xe2\x80\x99t concern the\nCommission.\xe2\x80\x9d Id. at 625. Governor Adams said: \xe2\x80\x9cThat\xe2\x80\x99s right,\xe2\x80\x9d and, according to\nMr. Armstrong, \xe2\x80\x9c[t]hat is all there was to it,\xe2\x80\x9d except that \xe2\x80\x9c[i]t is my best recollection today that the Government lawyers that Governor Adams was referring to in\nthe part of the conversation I testified to the other day were the Attorney General,\nMr. Brownell, and the special counsel for the President, Mr. Morgan.\xe2\x80\x9d Id.\nGovernor Adams said \xe2\x80\x9che wanted these lawyers to consider the problem [of\nWenzell\xe2\x80\x99s testimony], and they were away, and he couldn\xe2\x80\x99t get hold of them.\xe2\x80\x9d Id.\nat 628.5\nMr. Armstrong refused, however, to state whether or not he had talked to Governor Adams about the matter since he had been summoned to testify at the\nhearing; he asserted that any such conversation was privileged under the President\xe2\x80\x99s letter to the Secretary of Defense. Id. at 634\xe2\x80\x9335. On July 21, 1955, Governor Adams declined the subcommittee\xe2\x80\x99s invitation to testify, stating:\nSince every fact as to which I might give testimony either has been\nor could be testified to fully by other responsible Government offi-\n\n3\nThe Reorganization Act of 1949, Pub. L. No. 81-109, 63 Stat. 203, directs the President to examine the organization \xe2\x80\x9cof all agencies of the Government\xe2\x80\x9d to determine the changes necessary to\naccomplish more effective management, id. \xc2\xa7 2(a)(1) (codified at 5 U.S.C. \xc2\xa7 133z(a)(1) (1952)), and\nfor that purpose to prepare and submit plans of reorganization of any agency to the Congress, id. \xc2\xa7 3\n(5 U.S.C. \xc2\xa7 133z-1). Section 7 of the Act defines the term \xe2\x80\x9cagency\xe2\x80\x9d to mean \xe2\x80\x9cany executive department, commission, council, independent establishment, Government corporation, board, bureau,\ndivision, service, office, officer, authority, administration, or other establishment, in the executive\nbranch of the Government.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 133z-5. Reorganization Plan 10 of 1950 transferred the\nexecutive and administrative functions of the SEC from the Commission to its Chairman. 15 Fed. Reg.\n3175.\n4\nOur files contain a copy of a letter from the Attorney General to Mr. Armstrong dated July 19,\n1955, stating:\n\nAs I view the matter, there is no bar by reason of the President\xe2\x80\x99s letter to the Secretary\nof Defense, or the principles involved, to disclosure of the entire conversation with\nGovernor Adams, part of which related to his request for a short postponement of the\nCommission hearing in the Dixon-Yates proceedings.\n5\nThe Department\xe2\x80\x99s files (No. 115-016, \xc2\xa7 3) disclose a letter from Senator O\xe2\x80\x99Mahoney to the\nAttorney General dated February 20, 1956, asking whether Governor Adams had discussed the matter\nwith the Attorney General. The letter replied under date of February 27, 1956, that the Attorney\nGeneral had not had any such conversation.\n\n177\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ncials, and because of my official and confidential relationship to the\nPresident, I respectfully decline the subcommittee\xe2\x80\x99s invitation.\nId., pt. 2, at 676 (quoting letter). Thereafter, Mr. Armstrong testified that Mr.\nMorgan had informed him that the Attorney General had advised Mr. Morgan that\nwhile Mr. Armstrong was free to state that he had talked to Governor Adams since\nbeing summoned as a witness,6 the conversation itself was privileged under the\nPresident\xe2\x80\x99s letter of May 17, 1954. Id. at 751.\nB. Armstrong\xe2\x80\x99s Testimony at the Hearing on His Nomination\nSenator Kefauver, reviewing Mr. Armstrong\xe2\x80\x99s testimony before the Antitrust\nand Monopoly Subcommittee, summarized his objection to Mr. Armstrong\xe2\x80\x99s\nconfirmation as follows:\n[M]y point is that Mr. Armstrong did not live up to his trust in allowing Sherman Adams or somebody else to have him postpone a hearing without notice, without giving reasons; and he did not live up to\nhis trust in allowing the SEC to be used, keeping information from\ngetting to the House of Representatives which would affect legislation there, which they had a right to know.\nAnd, after having told our committee on three occasions that he\nhad told the whole story, he came back and told more and more of it\nand then finally, in the end, pleaded executive privilege all over\nagain. That is the story.\nI think it should be borne in mind that the Securities and Exchange Commission is a creature of Congress, it is a quasi-judicial\nagency. And my feeling is that anyone who would allow this procedure, and then refused to testify and pleaded executive privilege, and\nnot telling about it, to say that he told the story, and then every time\nit develops that he had not told the full facts, simply is not worthy to\nbe confirmed to this high office.\n1957 Hearing at 13.\nMr. Armstrong defended his presentation of Governor Adams\xe2\x80\x99 request for a\npostponement of the SEC hearings to the Commission, and stated that he had\nwithheld no information from the Antitrust and Monopoly Subcommittee with the\nexception of the single conversation with Governor Adams occurring after the\nsubcommittee\xe2\x80\x99s hearing had begun. Id. at 18. He also defended the Commission\xe2\x80\x99s\nfailure to advise the parties to the SEC proceeding of the reason for the postpone6\n\nIt appears that Governor Adams had telephoned Armstrong. Id. at 756.\n\n178\n\n\x0cApplicability of Executive Privilege to Independent Regulatory Agencies\n\nment, \xe2\x80\x9c[b]ecause the request had come from a person with respect to whom the\nexecutive privilege pertained.\xe2\x80\x9d Id. at 22.\nSenator Russell, chairman of the committee considering the nomination, stated\nthat he had some question \xe2\x80\x9cas to whether an independent agency of the Government ought to consult with the Attorney General as to what is and what is not a\nproper matter of Executive privilege,\xe2\x80\x9d id. at 34, and \xe2\x80\x9cI can conceive of cases\nwhere requests which are highly improper might be made from within the\npersonnel of the White House to one in charge of an executive agency of Government, and I do not think that the opinion of the Attorney General in a case of that\nkind ought to bind one who has the responsibilities in connection with an independent agency which would preclude him from divulging those facts, either to a\ncongressional committee or to a grand jury,\xe2\x80\x9d id. at 35.\nSubsequently, on May 16, 1957, in executive session, the committee reported\nthe nomination favorably, by a vote of 9 to 1. The nomination was debated on the\nfloor of the Senate on May 23, 1957; the SEC incident was again reviewed. 103\nCong. Rec. 7511\xe2\x80\x9325 (1957). The gist of the criticisms was that it was improper for\nthe executive branch to interfere with the quasi-judicial functions of a regulatory\nagency, and consequently that Mr. Armstrong as chairman of the SEC acted\nimproperly in consenting to such interference. Senator Saltonstall, in supporting\nconfirmation, stated as follows:\nAnother instance in which Mr. Armstrong\xe2\x80\x99s actions have been assailed is his request of the advice of the Attorney General respecting\nthe application of the doctrine of executive privilege and the extent\nto which Mr. Armstrong might testify about his conversation with\nGovernor Adams. The Securities and Exchange Commission exercises quasi-judicial powers, in addition to administrative ones. For\nmany purposes this status has served as the basis for differentiating\nthe SEC and similar regulatory agencies from purely executive agencies of the Government. Without attempting to pass judgment on\nwhether the Chairman of an Agency such as the SEC should seek his\nlegal opinions from the Attorney General, the record will show that\nMr. Armstrong sought this counsel in compliance with suggestions\nand recommendations of the members of the subcommittee before\nwhich he was testifying.\nId. at 7518. The debate terminated with confirmation, without a record vote having\nbeen taken. Id. at 7525.\n\n179\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nIII. The Office of Legal Counsel Memorandum\nApparently the memorandum which you have asked us to review is that prepared by a member of our staff under date of January 5, 1956.*\nThis memorandum was prepared as a result of Admiral Strauss\xe2\x80\x99s request for the\nAttorney General\xe2\x80\x99s opinion as to whether he was justified in asserting privilege in\ntestifying on the repudiation of the Dixon-Yates contract before the Antitrust and\nMonopoly Subcommittee in December 1955. At that time he refused to disclose\nany conversations he may have had with the President or Governor Adams on the\nsubject. We did not give him an opinion as he requested; instead a copy of the\nmemorandum was exhibited to him. It concluded that the restrictions of the\nPresident\xe2\x80\x99s letter of May 17, 1954, applied to the subject of his interrogation.7\nThe memorandum reviews in considerable detail the constitutional and historical basis for the assertion of privilege by officials in the executive branch with\nrespect to their internal communications. It then makes the following points\nconcerning the applicability of that privilege to communications between Admiral\nStrauss, as Chairman of the Atomic Energy Commission, and the President or\nGovernor Adams, concerning the Dixon-Yates matter:\n1. \xe2\x80\x9cAn examination of the historical precedents and the President\xe2\x80\x99s\nletter concerning the exercise of the executive privilege clearly indicate that the precedents and letter apply to the entire executive\nbranch and function of the Government, and not alone to the ten executive departments.\xe2\x80\x9d\n2. The Atomic Energy Commission, the principal functions of which\nare executive in nature, is for the purpose of the privilege to be\ndeemed a part of the Executive Branch.\n3. Whether or not the Atomic Energy Commission is technically a\npart of the executive branch, it is, in the exercise of executive functions, subject to the requirements of non-disclosure imposed by the\nPresident\xe2\x80\x99s letter. In the Dixon-Yates matter it was exercising an executive function.\n\n*\nEditor\xe2\x80\x99s Note: As noted above, this memorandum is collected later in this volume (Assertion of\nExecutive Privilege by the Chairman of the Atomic Energy Commission, 1 Op. O.L.C. Supp. 468\n(Jan. 5, 1956)).\n7\nIn March 1957, Admiral Strauss renewed his request for an opinion. By memorandum dated April\n11, 1957, this Office recommended that no opinion be given.\n\n180\n\n\x0cApplicability of Executive Privilege to Independent Regulatory Agencies\n\nIV. Recent Views of the Executive and Legislative Branches\nand of the Regulatory Agencies Themselves\nIn this part of the memorandum we shall summarize views which have been\nrecently expressed by the executive and legislative branches and by the regulatory\nagencies themselves as to the applicability of the doctrine of executive privilege to\nthe regulatory agencies.\nA. Views Expressed by the Executive Branch\nThe President\xe2\x80\x99s letter, it should be noted, says nothing about regulatory agencies as such. However, we do find an expression of the views of the Executive\nBranch in the Attorney General\xe2\x80\x99s letter to Mr. Armstrong of July 12, 1955. Quoted\nin 1955 Hearing, pt. 1 at 378\xe2\x80\x9379. According to that letter, the nondisclosure principles set forth in the President\xe2\x80\x99s letter are applicable to administrative agencies,\nsuch as the Securities and Exchange Commission, with regard to (1) internal\ncommunications of the agency and (2) communications between the agency and\nothers in the executive branch \xe2\x80\x9cwith respect to administrative matters, but not as to\nsuch communications involving an exercise of the agencies\xe2\x80\x99 quasi-judicial\nfunctions.\xe2\x80\x9d Id. at 379.\nB. Views Expressed by the Regulatory Agencies\nThere is considerable material emanating from the agencies themselves, which\nis found in their replies to question 15 of the questionnaire submitted to them by\nthe Special Subcommittee on Government Information of the House Committee\non Government Operations, established in 1955 by the 84th Congress. These\nreplies are contained in Staff of H. Comm. on Government Operations, 84th\nCong., Replies from Federal Agencies to Questionnaire Submitted by the Special\nSubcommittee on Government Information of the Committee on Government\nOperations (Comm. Print Nov. 1, 1955).\nQuestion 15 (to be answered only by \xe2\x80\x9cIndependent Agencies\xe2\x80\x9d) reads as follows:\nPlease indicate your understanding of the application of the doctrine\nof executive communications (as grounds for withholding information) to:\n(a) Communications within the agency and other internal data.\n(b) Communications with other agencies.\n(c) Communications with the Executive Office of the President.\nId. at 3.\n\n181\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nThe views of the different agencies show some doubt and difference of opinion.\nThus, the Federal Communications Commission (\xe2\x80\x9cFCC\xe2\x80\x9d) stated that whether or\nnot the doctrine of \xe2\x80\x9cexecutive communications\xe2\x80\x9d applied depended upon the nature\nof the agency function involved. It said that, while it was difficult to draw \xe2\x80\x9cprecise\nlines between the Commission\xe2\x80\x99s quasi-judicial, quasi-legislative, and executive\nand administrative functions,\xe2\x80\x9d it considered the following functions executive and\nadministrative in nature: \xe2\x80\x9c(a) [p]ersonnel, (b) budgetary, (c) matters relating to the\nnegotiating of treaties and negotiations with foreign governments.\xe2\x80\x9d Id. at 167. It\npointed out that it cooperated with the Executive Office of the President and the\nState Department with respect to negotiation and administration of treaties dealing\nwith communications matters. Id.\nAs to quasi-judicial or adjudicatory functions the FCC stated that the doctrine\nof executive communications had no application and that any such communication\nwas made a part of the public record. Id. at 168. But with respect to its administrative or executive functions, it was of the opinion that\ncommunications with other Government agencies and with the Executive Offices of the President may be withheld under the doctrine\nof executive communications. In this connection there is enclosed a\ncopy of the President\xe2\x80\x99s letter of May 17, 1954, to the Secretary of\nDefense to which is attached a copy of a memorandum from the Attorney General to the President.\nId. at 168.\nThe Federal Trade Commission on the other hand stated that, since it was not\n\xe2\x80\x9cstrictly\xe2\x80\x9d an executive agency (citing Humphrey\xe2\x80\x99s Executor), the doctrine of\nexecutive communications presented no serious problem and that \xe2\x80\x9c[t]he present\nCommission has not withheld any of its own information from Congress on that\nbasis and does not intend to do so,\xe2\x80\x9d including communications with the Executive\nOffice of the President. Id. at 216. But as to earlier policy of the Commission it\nreferred to a 1938 letter from the Commission to the Secretary of the President\nadvising him that it respected the desire of the President against publication of any\ncorrespondence referred to \xe2\x80\x9cdepartments and establishments . . . from the White\nHouse.\xe2\x80\x9d Id. The Interstate Commerce Commission stated categorically that \xe2\x80\x9c[a]s\nthe ICC is an arm of Congress rather than part of the executive establishment,\nthere has been no occasion for the doctrine of executive communications to arise.\xe2\x80\x9d\nId. at 303.\nThe National Labor Relations Board, after noting that it was uncertain as to the\nmeaning of the doctrine of \xe2\x80\x9cexecutive communication,\xe2\x80\x9d stated that it\ncertainly would respect the wishes of another agency or the Executive Office of the President to maintain a confidence when requested\nor implied. In sum we assume that an \xe2\x80\x9cexecutive communication\xe2\x80\x9d in\n\n182\n\n\x0cApplicability of Executive Privilege to Independent Regulatory Agencies\n\nterms in which that phrase appears to be used, means a \xe2\x80\x9ccommunication\xe2\x80\x9d that is not for release generally.\nId. at 351. The Securities and Exchange Commission, apparently reluctant to\nexpress itself in detail, merely cited the Attorney General\xe2\x80\x99s letter of July 12, 1955,\nthe President\xe2\x80\x99s letter of May 17, 1954, and other authorities. Id. at 433.8\nC. Views Expressed by the Legislative Branch\n1. Study by the Staff of the Committee on Government Operations\nIn May 1956, the House Committee on Government Operations (84th Congress) published a study by its staff entitled The Right of Congress to Obtain\nInformation from the Executive and from other Agencies of the Federal Government (Comm. Print May 3, 1956). After suggesting the confusion as to the\nPresident\xe2\x80\x99s control over the independent regulatory commissions, the authors of\nthe study seem to be of the view that with respect to withholding information from\nthe Congress it is not necessary to resolve the question of amenability to presidential direction since a commission can be in no better position than executive\nagencies which have no such right: \xe2\x80\x9cIn this regard they are both in the same legal\nstatus.\xe2\x80\x9d Id. at 6.9\n2. Report of the House Committee on Government Operations\nThis report states that\nIn the information phases of their activities, the independent agencies must be truly independent from executive pressure.\nThis independence is implicit in the legislation establishing the\nagencies and is spelled out in court cases. . . . In their quasilegislative and quasi-judicial functions, the regulatory agencies need\naccept no interference from the executive bureaus. Specifically, the\nBudget Bureau has no authority to veto information or comments on\n8\nFor the replies of the Civil Aeronautics Board, the Federal Power Commission and the Federal\nReserve Board, see id. at 71, 190\xe2\x80\x9391, 201\xe2\x80\x9302. These agencies expressed no view, stating that the doctrine had never been invoked by them.\n9\nAs we understand them, the authors assert that under Humphrey\xe2\x80\x99s Executor it is clear that in\ndischarging quasi-judicial and quasi-legislative functions the regulatory commissions act independently\nof executive control. While recognizing that in some instances there may be executive control as to\nadministrative functions, this, they say, can be derived only from specific legislative grant. There is no\nseparate discussion of the precise question which is the subject of this paper. However, we would\nassume that the position of the authors is that the regulatory commissions, no more than an executive\ndepartment, are entitled to claim a right, even as to conceded executive functions, to withhold\ncommunications with the President or his staff.\n\n183\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nlegislation transmitted from the independent agencies to Congress,\nnor does the Bureau have any final control, under the Federal Reports Act, over statistical information the independent agencies\nmight request from private organizations and individuals.\nH.R. Rep. No. 84-2947, at 87 (1956). Here the committee seems to follow substantially the views of the staff study, and, like that study, it appears to hold to the\nposition that even as to what might normally be considered purely executive\nfunctions the independent regulatory commission cannot deny to Congress\ndisclosure of communications with the President or his staff.\n3. Study by the Staff of the Special Subcommittee on\nLegislative Oversight\nOn October 17, 1957, the Special Subcommittee on Legislative Oversight (of\nthe House Committee on Interstate and Foreign Commerce, 85th Congress)\nreleased its staff study on the question of the subcommittee\xe2\x80\x99s right of access to the\nfiles and records of the Civil Aeronautics Board. Memorandum of Law: Right of\nAccess by Special Subcommittee on Legislative Oversight to Civil Aeronautics\nBoard Files and Records (Comm. Print Oct. 17, 1957).10 Included in the 18\nconclusions reached in this study is the conclusion that\n\xe2\x80\x9cExecutive privilege\xe2\x80\x9d is not available to an independent agency like\nthe Civil Aeronautics Board as a possible basis for the withholding\nof information from the Congress. The Civil Aeronautics Board, as\nthe Supreme Court has recognized, is an independent agency whose\nmembers are not subject to the removal power of the President. Such\na body cannot in any proper sense be characterized as an arm or eye\nof the Executive. It is instead an arm of the Congress, wholly responsible to that body.\nId. at vi. In the discussion of this conclusion, after denying that there is such a\ndoctrine as \xe2\x80\x9cexecutive privilege,\xe2\x80\x9d it is asserted principally on the basis of Humphrey\xe2\x80\x99s Executor, which we discuss in detail below, that in any event, administrative\nbodies like the Civil Aeronautics Board cannot withhold information from\nCongress under the claim of executive privilege. Id. at 4\xe2\x80\x938.\nThe Civil Aeronautics Board has filed with the Subcommittee a memorandum\nof its General Counsel dated October 16, 1957, in which it is argued, inter alia,\nthat the Board \xe2\x80\x9cvalidly may, on behalf of the President and subject to his desires,\nwithhold disclosure as to those matters which fall within the category of executive\n\n10\nThe memorandum was prepared by the Subcommittee\xe2\x80\x99s Chief Counsel and Staff Director,\nBernard Schwartz. It is under current analysis and study by this Office.\n\n184\n\n\x0cApplicability of Executive Privilege to Independent Regulatory Agencies\n\nfunctions until such time as a determination has been made and communicated to\nthe Board by the executive branch with respect to disclosure\xe2\x80\x9d (p. 8).\n4. Views Expressed at the Hearings Before the Senate Subcommittee\non Antitrust and Monopoly and on the Armstrong Nomination\nThe Subcommittee on Antitrust and Monopoly (consisting of Senators\nKefauver, O\xe2\x80\x99Mahoney, and Langer) took the position that except for \xe2\x80\x9cpurely\nadministrative or housekeeping duties\xe2\x80\x9d the SEC was not subject to executive\ncontrol. Senator Russell, speaking at the hearing on Mr. Armstrong\xe2\x80\x99s nomination,\nseemed to think that the independent status of regulatory agencies made it\nquestionable whether they were even entitled to consult the Attorney General as to\napplicability of the doctrine of executive privilege. Senator Saltonstall, speaking in\nsupport of the nomination, stated that he would not attempt to pass judgment on\nthat question.\nV. Judicial Authorities and Professional Comment\nNo federal court has passed upon the precise question here involved. The decision most nearly bearing on the question is Humphrey\xe2\x80\x99s Executor, decided in\n1935. Humphrey\xe2\x80\x99s Executor is usually cited by those who maintain that whatever\nmay be the doctrine of executive privilege it has no application to the independent\nregulatory agencies of the federal government.\nHumphrey\xe2\x80\x99s Executor, involving the Federal Trade Commission, held that the\nPresident could not, in his uncontrolled discretion, remove at his pleasure a\nmember of the Federal Trade Commission before the expiration of his term. As a\nresult it was concluded that a member so removed was entitled to recover on a\nclaim for salary for the balance of his term. After reviewing the Federal Trade\nCommission Act, its legislative history, and the general purposes of the Act, the\nCourt stated that they\nall combine to demonstrate the Congressional intent to create a body\nof experts who shall gain experience by length of service\xe2\x80\x94a body\nwhich shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government.\n295 U.S. at 625\xe2\x80\x9326 (emphasis in original).\nOther relevant quotations from the opinion are as follows:\nThe commission is to be non-partisan; and it must, from the very\nnature of its duties, act with entire impartiality. It is charged with the\nenforcement of no policy except the policy of the law. Its duties are\nneither political nor executive, but predominantly quasi-judicial and\n\n185\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nquasi-legislative. Like the Interstate Commerce Commission, its\nmembers are called upon to exercise the trained judgment of a body\nof experts \xe2\x80\x9cappointed by law and informed by experience.\xe2\x80\x9d\nId. at 624 (quoting Standard Oil Co. v. United States, 283 U.S. 235, 239 (1931);\nIllinois Cent. Ry. Co. v. ICC, 206 U.S. 441, 454 (1907)).\nSuch a body cannot in any proper sense be characterized as an arm\nor an eye of the executive. Its duties are performed without executive\nleave, and, in the contemplation of the statute, must be free from executive control . . . . To the extent that it exercises any executive\nfunction\xe2\x80\x94as distinguished from executive power in the constitutional sense\xe2\x80\x94it does so in the discharge and effectuation of its quasilegislative or quasi-judicial powers, or as an agency of the legislative\nor judicial departments of the government.\nId. at 628.\nThe authority of Congress, in creating quasi-legislative or quasijudicial agencies, to require them to act in discharge of their duties\nindependently of executive control cannot well be doubted . . . .\n. . . The sound application of a principle that makes one master in\nhis own house precludes him from imposing his control in the house\nof another who is master there. . . .\nThe power of removal here claimed for the President falls within\nthis principle, since its coercive influence threatens the independence\nof a commission, which is not only wholly disconnected from the\nexecutive department, but which, as already fully appears, was created by Congress as a means of carrying into operation legislative and\njudicial powers, and as an agency of the legislative and judicial departments.\nId. at 629\xe2\x80\x9330.11\nIn a later decision it was held that Humphrey\xe2\x80\x99s Executor did not apply to the\nremoval of a director of the Tennessee Valley Authority. Morgan v. TVA, 115 F.2d\n990 (6th Cir. 1940), cert. denied, 312 U.S. 701 (1941). Said the Court:\nIt is not to be aligned with the Federal Trade Commission, the Interstate Commerce Commission, or other administrative bodies mainly\nexercising clearly quasi-legislative or quasi-judicial functions\xe2\x80\x94it is\n11\nA lower federal court has similarly regarded the National Labor Relations Board. Precision\nCastings Co. v. Boland, 13 F. Supp. 877, 884 (W.D.N.Y. 1936).\n\n186\n\n\x0cApplicability of Executive Privilege to Independent Regulatory Agencies\n\npredominantly an administrative arm of the executive department.\nThe rule of the Humphrey case does not apply.\nId. at 994.12\nAnd, in another context, the Supreme Court has recognized that in certain of its\nfunctions the Civil Aeronautics Board was not free of executive control. Chicago\n& S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948). Thus, with\nrespect to the licensing of overseas air transportation, it was said that Congress had\n\xe2\x80\x9ccompletely inverted the usual administrative process. Instead of acting independently of executive control, the agency is then subordinated to it.\xe2\x80\x9d Id. at 109.\nWhat then is the full import of Humphrey\xe2\x80\x99s Executor? Is it to be interpreted as\nmeaning that a regulatory commission established by Congress is so completely\nindependent of the President that the doctrine of executive privilege has no\nmeaning under any circumstances? In our opinion, the answer must be in the\nnegative:\n1. It is clear, as the Court itself noted, that where the statute vests in the President the power to appoint the members of the commission, to that extent the\nagency is not independent of executive authority. Accordingly, we think that even\nunder Humphrey\xe2\x80\x99s Executor a member of a regulatory commission could validly\ninvoke the doctrine of executive privilege as to conversations with the President or\nmembers of his staff concerning appointment of commission members.\n\n12\nActing Attorney General Jackson had previously advised the President that Humphrey\xe2\x80\x99s Executor\ndid not apply. Power of the President to Remove Members of the Tennessee Valley Authority from\nOffice, 39 Op. Att\xe2\x80\x99y Gen. 145 (1938). The Court of Claims has held that even though the War Claims\nCommission exercises quasi-judicial and quasi-legislative functions, nevertheless the President could\nremove a member of the commission at his pleasure because Congress had imposed no specific\nlimitation on the President\xe2\x80\x99s removal power. Wiener v. United States, 142 F. Supp. 910 (Ct. Cl. 1956).\nThe Supreme Court has granted certiorari and the case is now pending for argument. [Editor\xe2\x80\x99s Note:\nThe decision of the Court of Claims was reversed by the Supreme Court in Wiener v. United States,\n357 U.S. 349 (1958).]\nSeveral cases of a peripheral interest may be noted: In Appeal of SEC, 226 F.2d 501 (6th Cir.\n1955), the court sustained, in a suit between private parties, the validity of a regulation of the\ncommission making confidential its internal investigative reports. The court did not differentiate\nbetween regulations issued by executive departments and those issued by administrative agencies. In re\nPetition of the Finance Committee of the Legislature of the Virgin Islands, 242 F.2d 902 (3d Cir. 1957),\ninvolved a contest between the Governor of the Virgin Islands and its legislature. A legislative\ncommittee was upheld in its claim to examine the records of the Commissioner of Finance as against\nthe contention that the committee\xe2\x80\x99s authority had expired. The highest court of Massachusetts has\ninferentially recognized the existence of the doctrine of executive privilege. In Opinion of the Justices,\n102 N.E.2d 79 (Mass. 1951), the state senate was advised that it was entitled, as against the claim of a\nviolation of the constitutional doctrine of separation of powers, to inspect a report of the state industrial\ncommission, there not being any question of diplomatic or military secrets. In Morss v. Forbes, 132\nA.2d 1 (N.J. 1957), the Supreme Court of New Jersey held that a county prosecuting attorney could not\nassert as against the state legislature the doctrine of executive privilege since under New Jersey law it\nwas not sufficiently clear that he was a part of the executive branch.\n\n187\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n2. In Humphrey\xe2\x80\x99s Executor, the Court dealt with the power of Congress to limit\nthe President\xe2\x80\x99s constitutional authority to remove members of the Federal Trade\nCommission appointed by him. This question was resolved by the Court on an\nevaluation of the President\xe2\x80\x99s control over the exercise of functions vested in the\nFTC. Where the primary functions of the commission are, like those of the Federal\nTrade Commission, quasi-legislative and quasi-judicial, and Congress has\nrestricted the President\xe2\x80\x99s power of removal, the commission may be, with respect\nto the exercise of its quasi-legislative and quasi-judicial powers, free of executive\ncontrol. Hence as to such matters it would seem that the members of the commission may not invoke the doctrine of executive privilege.\nBut what about an agency which has important executive functions? Professor\nRobert E. Cushman of Cornell University notes in his work, The Independent\nRegulatory Commissions (1941),13 that the Interstate Commerce Commission, for\nexample,\ncarries on the executive task of enforcing the Safety Appliance Acts,\na task certainly not \xe2\x80\x9cincidental\xe2\x80\x9d to the quasi-judicial job of rate making. The commission is obviously not purely executive in the sense\nin which the Humphrey opinion uses the term; neither is it purely\nquasi-legislative and quasi-judicial. This is true of most of the regulatory commissions and this means that their constitutional status\nwas not determined by the Humphrey cases.\nId. at 457\xe2\x80\x9358.\nFor our purposes, a more striking example is the Federal Maritime Board. That\nboard was established by Reorganization Plan 21 of 1950 (15 Fed. Reg. 3178) as\nan agency within the Department of Commerce. The members of the board are\nappointed by the President, by and with the advice and consent of the Senate. With\nrespect to its regulatory functions the board is independent of the Secretary of\n13\nProfessor Cushman\xe2\x80\x99s book is a comprehensive study of American regulatory commissions. For\nour purposes, of particular interest is chapter VI, pages 417\xe2\x80\x9378, dealing with the constitutional status of\nthe independent regulatory commissions, and more specifically, pages 448\xe2\x80\x9367, dealing with the\nrelations of the commissions to Congress and the President. Professor Cushman does not discuss the\nprecise question considered in this memorandum. However, the conclusions reached by him on the\nbroader questions of the relationship of the commissions to Congress and the President support the\nconclusions reached by us in this memorandum. Another study (of little help here) is Wilson Keyser\nDoyle, Independent Commissions in the Federal Government (1939).\nNone of the commentators who have dealt with the question of executive privilege has, to our\nknowledge, discussed the matter from the special standpoint of the regulatory agencies. See, e.g.,\nHerman Wolkinson, Demands of Congressional Committees for Executive Papers, 10 Fed. B.J. 103\n(pt. 1), 223 (pt. 2), 319 (pt. 3) (1949); Note, Power of the President to Refuse Congressional Demands\nfor Information, 1 Stan. L. Rev. 256 (1949); Philip R. Collins, The Power of Congressional Committees\nof Investigation to Obtain Information from the Executive Branch: The Argument for the Legislative\nBranch, 39 Geo. L.J. 563 (1951); Joseph W. Bishop, Jr., The Executive\xe2\x80\x99s Right of Privacy: An\nUnresolved Constitutional Question, 66 Yale L.J. 477 (1957).\n\n188\n\n\x0cApplicability of Executive Privilege to Independent Regulatory Agencies\n\nCommerce. These functions include the regulation and control of rates, service,\npractices, and agreements of common carriers by water, making rules and\nregulations affecting shipping in the foreign trade, and investigating discriminatory practices in such trade. They are obviously quasi-legislative and judicial. The\nboard also has important executive functions, including the making of investigations and determinations antecedent to the award of ship construction and shipoperating differential subsidy construction and ship-operating differential subsidy\ncontracts and awarding such contracts. As to these functions it is expressly\nprovided that the board is to be guided by the general policies of the Secretary of\nCommerce. Id. \xc2\xa7 106, 15 Fed. Reg. at 3179.\nIt is obvious that an agency like the Maritime Board cannot be characterized,\nwithin the meaning of Humphrey\xe2\x80\x99s Executor, as independent of executive control\nor as an agency of the Legislative Branch. In the performance of its executive\nfunctions the Maritime Board must consider the policies of the executive branch as\nexpressed by the Secretary of Commerce. Since the President therefore, through\nthe Secretary of Commerce, exercises a supervisory role over the non-regulatory\nfunctions of the Maritime Board it is our opinion that communications between the\nboard and the President with respect to such matters are privileged.\nAnother example, indicated earlier, is the Civil Aeronautics Board, one of\nwhose statutory functions, 49 U.S.C. \xc2\xa7 602, is to consult with and assist the State\nDepartment in the negotiation of agreements with foreign governments for the\nestablishment or development of air transportation, air navigation, air routes and\nservices. The conduct of foreign relations is constitutionally vested in the President. It is an area in which Presidents have vigorously asserted the right to\nwithhold information from the Congress. It may be assumed arguendo that for\npurposes of removal of its members the Civil Aeronautics Board, like the Federal\nTrade Commission, is independent of executive control within the meaning of\nHumphrey\xe2\x80\x99s Executor. But that independence, which is derived from the board\xe2\x80\x99s\nexercise of quasi-legislative and quasi-judicial functions, cannot, in our opinion,\nextend to its participation in the negotiation of foreign agreements, a matter\nconstitutionally vested in the President. Accordingly, in our judgment, the board in\nthis respect would be obliged to respect the President\xe2\x80\x99s wishes concerning the\nrelease of information.\n3. In some areas Congress has itself subjected the independent regulatory\ncommissions to executive control. For example, under the Act of August 26, 1950,\nPub. L. No. 81-733, \xc2\xa7 3, 64 Stat. 476, 477, it has authorized the President to\nextend to all departments and agencies of the government the authority vested in\nspecified department and agency heads to make summary suspensions and\ndismissals of their civilian employees in the interest of the national security. See\nCole v. Young, 351 U.S. 536 (1956). Under Executive Order 10450, the President\nhas extended applications of the provisions of the act to all departments and\nagencies, and by section 9(c) of the order the President has imposed a confidential\nstatus on \xe2\x80\x9creports and other investigative material and information developed by\n\n189\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ninvestigations.\xe2\x80\x9d 18 Fed. Reg. 2489, 2492 (1950). We do not think that even though\na regulatory commission may be characterized as \xe2\x80\x9cindependent\xe2\x80\x9d for certain\npurposes, it may properly ignore the President\xe2\x80\x99s direction as to the confidential\nstatus of this material on the theory that it is not subject to presidential control.\n4. In some instances Congress has vested in the President the power to remove\nmembers of the regulatory commissions for \xe2\x80\x9cinefficiency, neglect of duty, or\nmalfeasance in office.\xe2\x80\x9d14 On this basis Professor Cushman makes the argument,\nwhich we think is a valid one, that the President under penalty of removal \xe2\x80\x9cmay\nexact reasonable efficiency and absolute integrity\xe2\x80\x9d and\ncan force an independent regulatory commission to comply with executive orders of general application unless Congress clearly indicates that such orders should not apply. These executive orders relate\nto a multitude of matters which affect the general efficiency of the\ngovernment. . . . [T]he refusal of the commission to obey the President\xe2\x80\x99s executive order would constitute neglect of duty or misconduct, which would justify the removal of the commissioners from office.\nIndependent Regulatory Commissions at 464, 465. It is also to be noted that the\nPresident is vested with managerial responsibility over regulatory agencies by the\nReorganization Act of 1949, 5 U.S.C. \xc2\xa7 133z.\nWhere the President is vested with general managerial powers over a regulatory\ncommission it would seem proper to regard the doctrine of executive privilege as\nextending to the disclosure of communications between the commission and the\nPresident or his staff concerning managerial matters.\n5. As a matter of practice the independent regulatory commissions have never\nbeen regarded as so divorced from the executive branch as to preclude them from\nseeking, with approval of the President, the advice of the Attorney General. Thus,\nAttorney General Biddle gave such advice for the benefit of the Interstate\nCommerce Commission (Extension of Time to Pay Rail Carriers\xe2\x80\x99 Freight\nCharges, 40 Op. Att\xe2\x80\x99y Gen. 353 (1945)); Attorney General Murphy furnished an\nopinion for the benefit of the Securities and Exchange Commission concerning the\napplicability of statutes regulating the transmission of publications free of postage\n(Free Mailing of Publications by the Securities and Exchange Commission, 39 Op.\nAtt\xe2\x80\x99y. Gen. 405 (1940)); and Acting Attorney General Keenan issued an opinion\nfor the benefit of the Maritime Commission concerning the applicability of the\ncivil service laws to appointments of attorneys to its staff (Applicability of Civil\nService Rules to Appointment of Attorneys by United States Maritime Commission,\n\n14\nSee, e.g., 15 U.S.C. \xc2\xa7 41 (Federal Trade Commission); 42 U.S.C. \xc2\xa7 1802 (Atomic Energy Commission); 49 U.S.C. \xc2\xa7 11 (Interstate Commerce Commission); 49 U.S.C. \xc2\xa7 421 (Civil Aeronautics\nBoard).\n\n190\n\n\x0cApplicability of Executive Privilege to Independent Regulatory Agencies\n\n39 Op. Att\xe2\x80\x99y. Gen. 50 (1937)). On June 15, 1955, you advised the President, upon\nsubmission of a question by the Federal Communications Commission, regarding\nthe scope of statutory prohibitions against the disclosure of certain information\n(unpublished opinion, File No. 19-2-547).\nThese instances reflect the thought that at least with respect to matters not\ninvolving quasi-legislative or quasi-judicial functions it is appropriate to consider\nthe independent regulatory commissions in administrative matters as part of the\nexecutive branch of the federal government. This would seem to be sound not only\nin legal theory but as a matter of good management.\nVI. Conclusion\nWe conclude in short that a case cannot be made for absolute exclusion of the\nso-called independent regulatory agencies from the doctrine of executive privilege.\nAlthough free from executive control in the exercise of quasi-legislative and\nquasi-judicial functions, they frequently exercise important functions executive in\nnature. As to these they are subject to executive control. From a managerial\nstandpoint they may also be amenable to executive direction. Whatever may be the\nvalidity of the argument that the doctrine of executive privilege is inapplicable if\nattempted to be invoked with respect to the performance of a quasi-legislative or\nquasi-judicial function, it does not follow that the doctrine is equally irrelevant in\nrelation to the performance of executive and managerial functions. As to the latter\nwe think the doctrine of executive privilege is as much applicable to regulatory\ncommissions as to the executive departments and officers of the government.\nW. WILSON WHITE\nAssistant Attorney General\nOffice of Legal Counsel\n\n191\n\n\x0c'


b'Applicability of Interest and Penalty Provisions of the Criminal\nFine Enforcement Act to Fines Imposed as a Condition of\nProbation\nA pplication o f the interest and penalty provisions o f the Crim inal Fine Enforcem ent Act o f 1984 is\nm andatory in the case o f late paym ent or nonpaym ent of a fine im posed strictly as a condition o f\nprobation.\n\nJune 15, 1988\nM\n\nem orand um\n\nE x e c u t i v e O f f ic e\n\nO\n\np in io n f o r t h e\n\nfo r\n\nU\n\nn it e d\n\nD\n\nir e c t o r\n\nStates A ttorneys\n\nThis memorandum responds to your office\xe2\x80\x99s inquiry as to whether the interest\nand penalty provisions of the Criminal Fine Enforcement Act of 1984,18 U.S.C.\n\xc2\xa7\xc2\xa7 3565(b)(2), 3565(c)(l)-(2), apply in the case of late payment or nonpayment\nof a fine imposed strictly as a condition of probation. As set forth below, we con\xc2\xad\nclude that the Criminal Fine Enforcement Act does mandate application of those\nprovisions to fines imposed strictly as a condition of probation.\nBackground\nThe Criminal Fine Enforcement Act of 1984, Pub. L. No. 98-596,98 Stat. 3134\n(\xe2\x80\x9cAct\xe2\x80\x9d), contains a series of provisions relating to the imposition and collection\nof fines in federal criminal cases.1Generally, these provisions (1) establish stan\xc2\xad\n1\nAs a preliminary matter, it is important to note that the federal fine provisions have an unusual and compli\xc2\xad\ncated legislative history. Two different bills, both pertaining to the imposition and collection o f criminal fines and\npenalties, were passed by Congress and signed into law by the President during the same month. The first o f these\ntwo bills, the Comprehensive C nm e Control Act of 1984 (\xe2\x80\x9cCrime Control Act"), Pub. L. No. 98-473,98 Stat. 1837,\n1976, was enacted October 12, 1984. Title U o f the Crime Control Act added three new chapters to tide 18 of the\nUnited States Code that pertained to criminal fine collection: chapter 227 (Sentences), chapter 228 (Imposition,\nPayment and Collection o f Fmes), and chapter 229 (Postsentence Administration). Chapter 228 was to become ef\xc2\xad\nfective immediately, while chapters 227 and 229 were to become effective on November 1,1986. However, on D e\xc2\xad\ncember 26, 1985, Congress enacted the Sentencing Reform Amendments Act of 1985, Pub. L. No. 9 9 -2 1 7 ,9 9 Stat.\n1728, which delayed the effective date o f chapters 227 and 229 until November 1, 1987. On October 30, 1984, the\nPresident signed a separate fine collection measure, the Criminal Fine Enforcement Act o f 1984 (\xe2\x80\x9cCFEA"), Pub.\nL. No. 98-5 9 6 ,9 8 Stat. 3134, which, among other things, restored the text o f chapters 227 and 229 with language\nidentical to text existing p nor to passage o f the Cnme Control Act In addition, the CFEA repealed section 228,\nwhich, under provisions o f the Crime Control Act, was to become effective immediately.\nUnder the terms o f the CFEA, restored chapters 227 and 229 became effective January 1, 1985, and apply\nto offenses committed on or after that date. As mentioned above, chapters 227 and 229 of the Crime Control Act\nlook effect on November 1,1987. Accordingly, the interest and penalty provisions found in the Criminal Fine En\xc2\xad\nforcement Act o f 1984, which are pertinent to this discussion, effect only those crimes committed after December\n31, 1984 and pnor to November 1, 1987.\n\n117\n\n\x0cdards for the imposition of fines by federal judges; (2) increase fine levels for all\nfederal offenses; (3) provide improved fine collection procedures; and (4) create\nincentives to the timely payment of fines. Section 3565(b)(1)(A) provides that a\njudgm ent imposing the payment of a fine or penalty \xe2\x80\x9cshall . . . provide for im\xc2\xad\nmediate payment unless, in the interest of justice, the court specifies payment on\na date certain or in installments.\xe2\x80\x9d Section 3565(b)(2) states that \xe2\x80\x9c[i]f the judg\xc2\xad\nment specifies other than immediate payment of a fine or penalty, the period pro\xc2\xad\nvided for payment shall not exceed five years, excluding any period served by\nthe defendant as imprisonment for the offense. The defendant shall pay interest\non any amount payment of which is deferred under this paragraph.\xe2\x80\x9d In addition,\nthe statute requires the defendant to pay interest on any amount of a fine or penalty\nthat is past due. 18 U.S.C. \xc2\xa7 3565(c)(1).\nFederal district courts \xe2\x80\x9cmay suspend the imposition or execution of sentence\nand place the defendant on probation for such period and upon such terms and\nconditions as the court deems best.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 3651.2 The court may require\nthe defendant to \xe2\x80\x9cpay a fine in one or several sums.\xe2\x80\x9d Id. If, at the end of the pe\xc2\xad\nriod o f probation the defendant has not paid the fine, the defendant is still oblig\xc2\xad\nated to pay the fine, which is to be collected in the manner set forth in section\n3565. Id.\nThe Executive Office for United States Attorneys (\xe2\x80\x9cEOUSA\xe2\x80\x9d) contends that\nif the court enters a judgment o f conviction, suspends imposition or execution of\na sentence and, as a condition o f probation, requires the defendant to pay a fine\nas provided under 18 U.S.C. \xc2\xa7 3651, the collection and payment of the fine, in\xc2\xad\ncluding the imposition of interest and penalties, is governed by section 3565.3\nThe EOUSA construes section 3565 to treat a fine imposed as a condition of pro\xc2\xad\nbation (probation fine) in the same way in which it treats a \xe2\x80\x9cstraight\xe2\x80\x9d fine, that\nis, a fine imposed as a sentence.4 See 18 U.S.C. \xc2\xa7 3565(b)(1).\nThe Administrative Office fo r the United States Courts (\xe2\x80\x9cAOUSC\xe2\x80\x9d), on the\nother hand, contends that the interest and penalty provisions of the CFEA do not\napply to probation fines.5\nThe AOUSC notes that, historically, probation fines have always been treated\nsomewhat differently from straight fines and argues that the CFEA contemplates\na continuation of dual interest and penalty procedures.6\nFor the reasons outlined below, we conclude that the Criminal Fine Enforce\xc2\xad\nment Act of 1984 mandates application of the interest and penalty provisions of\nsection 3565 in the case of late payment or nonpayment of a fine imposed as a\ncondition of probation.\n\n2 The court does not have such discretion when the judgm ent o f conviction is of an offense punishable by death\nor life imprisonment. 18 U .S .C \xc2\xa7 3651.\n3 S ee M emorandum for Douglas W Kmiec, Deputy Assistant Attorney General, Office o f Legal Counsel, from\nLaurence S. M cW horter, Acting Director, Executive Office for United States Attorneys (Apr 9, 1987).\n4 Id.\n5 See letter from David N. Adair, J r , Assistant General Counsel, Administrative Office of the United States\nC ourts, to W illiam D. Andrews, United States Probation O fficer (Nov. 21, 1986).\n6 Id.\n\n118\n\n\x0cDiscussion\nWe look first to the words of the statute to determine congressional intent.7 It\nappears on the face of the statute that the CFEA\xe2\x80\x99s interest and penalty provisions\nare mandatory and apply to all fines. As previously mentioned, subsection 3565(c)\n(1) states that the defendant shall pay interest on \xe2\x80\x9cany amount of a fine or penalty\n. . . that is past due.\xe2\x80\x9d Subsection 3565(c)(2) states that if an amount owed by the\ndefendant \xe2\x80\x9cas a fine or penalty\xe2\x80\x9d is past due for more than ninety days, the de\xc2\xad\nfendant shall pay a penalty equal to twenty-five percent of the amount past due.\nThere is no specific indication in either of those two subsections that Congress\nintended the words \xe2\x80\x9ca fine or penalty\xe2\x80\x9d to exclude probation fines. Indeed, none\nof the subsections of section 3565 that make a reference to fines use language\nthat can be interpreted on its face to be exclusionary in nature. On the contrary,\nthese subsections use all-inclusive language. For example, subsection (a)(1) per\xc2\xad\ntains to \xe2\x80\x9call criminal cases in which judgment or sentence is rendered, imposing\nthe payment of a fine or penalty, whether alone or with any other kind of pun\xc2\xad\nishment.\xe2\x80\x9d Subsection (a)(2), provides that a \xe2\x80\x9cjudgment imposing the payment of\na fine or penalty\xe2\x80\x9d shall, with specified exceptions, be a lien in favor of the United\nStates upon all property and rights of property belonging to the defendant. Sub\xc2\xad\nsection (b)(1) states that a \xe2\x80\x9cjudgment imposing the payment of a fine or penalty\nsh all. . . provide for immediate payment\xe2\x80\x9d unless the court specifies payment on\na date certain or in installments.8 In sum, on its face section 3565 applies to all\nfines, a class which includes probation fines.\nThe probation sections of the CFEA do not provide further enlightenment as\nto whether Congress intended to treat probation fines in the same manner as\nstraight fines with respect to the interest and penalty provisions of section 3565.\nSection 3651 empowers the court to \xe2\x80\x9csuspend the imposition or execution of sen\xc2\xad\ntence and place the defendant on probation for such period and upon [further]\nterms and conditions as the court deems best.\xe2\x80\x9d That section further provides that\nthe court may require the defendant to pay a fine in a lump sum or in several\nsums. Section 3655 describes the duties of probation officers, including the re\xc2\xad\nquirement to report to the court any failure of a probationer under his supervi\xc2\xad\nsion to pay an amount due as a fine or as restitution. None of the sections per\xc2\xad\ntaining to conditions of probation make any mention of monetary penalties,\nincluding interest payments, in the case of a failure to pay a probation fine.9 Nor\ndo those sections make any references to the interest and penalty provisions em \xc2\xad\n\n7 See, e g , Touche Ross & Co. v. Redinglon, 442 U.S. 560, 568 (1979).\n8 See also subsection (d)(1), providing that except under specified circumstances the defendant shall pay to the\nAttorney General \xe2\x80\x9cany amount due as a fine or penalty;\xe2\x80\x9d subsection (0 . which applies in circumstances in which\n\xe2\x80\x9ca fine or penalty is imposed on an organization\xe2\x80\x9d and \xe2\x80\x9ca fine or penalty is imposed on a director, officer, employee,\nor agent o f an organization;\xe2\x80\x9d and subsection (g), which sets forth procedures to be followed when \xe2\x80\x9ca fine or penalty\nis satisfied as provided by law.\xe2\x80\x9d\n9 The current law governing probation is embodied in chapter 231 of title 18. Pub. L. No. 98-473, tit. II, ch. II,\n\xc2\xa7 212(a)(1),(2), 98 Stat 1987 (1984), repealed chapter 231 effective Nov 1, 1987, pursuant to section 235 of Pub\nL No. 98-473, and amended by Pub. L. No. 99-217, \xc2\xa7 4, 99 Stat 1728 (1985).\n\n119\n\n\x0cbodied in section 3565;10 section 3561 \xe2\x80\x99s only specific reference to section 3565\nis the statement that the fines shall be collected in the manner provided by sec\xc2\xad\ntion 3565.\nIt also has been suggested that the CFEA\xe2\x80\x99s identical treatment of straight fines\nand probation fines for certain purposes should be read as a manifestation of Con\xc2\xad\ngress\xe2\x80\x99 intent that the two types of fines be treated identically throughout the Act\nfor other purposes, including application of the interest and penalty provisions\no f section 3565.11 For example, section 3561 of the CFEA provides that, like\nstraight fines, probation fines do not expire with the conclusion of criminal pro\xc2\xad\nceedings.12 Likewise, the two types of fines are handled identically with respect\nto collection.13 Although certainly not dispositive of the issue, the Act\xe2\x80\x99s parallel\ntreatment of the two categories of fines could be read to manifest an overall con\xc2\xad\ngressional approach to fines and penalties.\nIn light of the fact that the CFEA does not explicitly include or except proba\xc2\xad\ntion fines from application of its interest and penalty provisions, we look next to\nthe legislative history of the CFEA. Research reveals, however, that although it\nis clear from the legislative history that a primary purpose of the statute was to\nencourage the prompt and full payment of fines14 and that the interest and penalty\nprovisions were created to encourage timely payment,15 neither the congressional\ndebates nor the report accompanying the legislation provides a definitive state\xc2\xad\nment as to Congress\xe2\x80\x99 intent with respect to this issue. There is some indication\nin the legislative history that Congress recognized that an incentive for payment\nof fines already existed with respect to probation fines. One could infer from that\nrecognition that Congress saw a need for an incentive in the case of straight fines.\nWe do not believe, however, that merely because Congress recognized the need\nfor a monetary incentive for straight fines it follows that Congress intended that\nthere was to be no monetary incentive for the defendant to comply with proba\xc2\xad\ntion fines above and beyond the ever-present threat of termination of the proba\xc2\xad\ntion and the resulting imposition of a prison sentence. Indeed, section 3651 of\nthe CFEA provides that the defendant\xe2\x80\x99s obligation to pay a fine imposed or made\na condition o f probation is not extinguished when the court terminates the pro\xc2\xad\nceedings against the defendants; accordingly, there would still be a need for an\n10 In contrast, the probation sections contained in the Comprehensive Crime Control Act of 1984 give the court\ndiscretion to require the defendant to \xe2\x80\x9cpay a fine imposed pursuant to the provisions of subchapter C \xe2\x80\x9d 18 U.S.C.\n\xc2\xa7 3563(b)(2). Subchapter C contains the general fine provisions, the implementation o f which are governed by the\nprovisions o f subchapter B o f chapter 229, which contains the interest and penalty provisions. Accordingly, by spe\xc2\xad\ncific reference, the interest and penalty provisions apply to fines imposed strictly as a condition to probation.\n11 See Memorandum for Douglas W. Km iec, Deputy Assistant Attorney General, Office of Legal Counsel, from\nLaurence S M cW horter, Acting Director, Executive Office for Umted States Attorneys (Apr. 9, 1987).\n12 W ith respect to straight fines, the C FEA provides that the obligation to pay a fine or penalty ceases only upon\nthe death o f the defendant or the expiration o f twenty years after the date o f the entry of the judgment, whichever\noccurs earlier. 18 U.S.C. \xc2\xa7 3565(h)\n13 The collection o f straight fines is governed by 18 U.S.C. \xc2\xa7 3565(d)-(h). Probation fines \xe2\x80\x9cshall be collected in\nthe manner provided in section 3565 of this title \xe2\x80\x9d 18 U.S.C. \xc2\xa7 3651.\n14 H.R Rep. No 906, 98th Cong., 2d Sess. I (1984). See also 130 Cong. Rec. 31,946-48 (1984) (statement of\nSen. Percy).\n15 Id. at 3.\n\n120\n\n\x0cincentive once the proceedings were terminated.16 In sum, we find no conclusive\nstatement in the legislative history as to Congress\xe2\x80\x99 intent with respect to whether\nthe interest and penalty provisions apply to probation fines.\nFinally, the only case law addressing the application of the interest provisions\nof sections 3565(b)(2) and 3565(c)(1),(2) to probation fines holds that probation\nfines are governed by these provisions. Indeed, the United States Court of Ap\xc2\xad\npeals for the Third Circuit found that where restitution was ordered as a condi\xc2\xad\ntion of probation, postjudgment interest was properly ordered despite the fact that\nthe Federal Probation Act, 18 U.S.C. \xc2\xa7 3651, makes no reference to the payment\nof interest in connection with restitution. United States v. Sleight, 808 F.2d 1012\n(3rd Cir. 1987). The court found a parallel between court-ordered restitution and\ncriminal fines, stating that \xe2\x80\x9c[a] judgment for restitution can be viewed as a debt\nto the victim just as a judgment for a fine is considered to be a debt to the sover\xc2\xad\neign. Congress has provided that fines and penalties can be enforced in the same\nmanner as civil judgments, and that postjudgment interest must be paid on any\nfine or penalty that is past due.\xe2\x80\x9d Id. at 1020. The court further noted that should\nthe defendant not be required to pay postjudgment interest, he (the defendant)\nwould have an economic incentive to \xe2\x80\x9cdelay such payment until the last possi\xc2\xad\nble opportunity.\xe2\x80\x9d Id. at 1021. In finding that postjudgment interest was properly\nordered where the defendant failed to pay restitution imposed a condition of pro\xc2\xad\nbation, the Sleight court read section 3565(c)(1) to mandate payment of post\xc2\xad\njudgment interest on any fine or penalty that is past due, including fines imposed\nas condition for probation. Id. at 1020. Thus, the court\xe2\x80\x99s interpretation of the\nCFEA\xe2\x80\x99s interest and penalty provisions supports our conclusion that those pro\xc2\xad\nvisions apply to probation fines.17\nConclusion\nWe conclude that application of the interest and penalty provisions embodied\nin sections 3565(b)(2) and 3565(c)(l)-(2) of the Criminal Fine Enforcement Act\nof 1984 is mandatory in the case of late payment or nonpayment of all fines im\xc2\xad\nposed in criminal cases in which judgment or sentence is rendered. Accordingly,\nwe find that application of the interest and penalty provisions is mandatory where\nthe defendant has failed to pay a fine imposed as a condition of probation pur\xc2\xad\nsuant to 18 U.S.C. \xc2\xa7 3651.\nJohn O . M\n\nc G in n is\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n16 In its discussion o f the problem with collecting straight fines. Congress noted that, apparently in contrast, \xe2\x80\x9c [a]\ndefendant who fails to pay a fine that is a condition o f probation can have probation revoked.\'\xe2\x80\x99 H.R. Rep. No. 906,\n98th Cong., 2d Sess. 3 (1984). During the debates, Senator Percy noted that \xe2\x80\x98\'the new law takes away the economic\nincentive for avoiding fine payment as long as possible by providing for interest and penalties on unpaid fines."\n130 Cong. Rec. 31,947 (1984). He went on to note in the same paragraph that \xe2\x80\x9c [a]ll fines will be due at once, un\xc2\xad\nless a definite payment schedule is established at the time o f sentencing." Id The Senator did not appear to m ake\na distinction between straight fines and probation fines\n17 W e note that the effect o f our opinion is limited in that under 18 U.S.C. \xc2\xa7 3651 the court \xe2\x80\x9cmay revoke or m od\xc2\xad\nify any condition o f probation, o r may change the period o f probation."\n\n121\n\n\x0c'