b"Restrictions on a Federal Appointee\xe2\x80\x99s Continued\nEmployment by a Private Law Firm\nFederal conflict o f interest laws, 18 U.S.C. \xc2\xa7\xc2\xa7 202-209, and Department o f Justice Standards of\nConduct, 28 C.F.R. pt. 45, restrict the private practice o f law by an attorney while employed\nby the Departm ent of Justice.\nIf the attorney is hired as a \xe2\x80\x9cregular government em ployee,\xe2\x80\x9d i.e., expected to serve more than 130\ndays in any 365-day period, he will be prohibited from acting as an agent or attorney for\nanyone other than the United States in any matter in w hich the United States is a party o r has\na direct and substantial interest, and from receiving compensation for services rendered by\nhim self or another in such matters. In addition, Departm ent regulations prohibit the outside\npractice o f law by Department of Justice employees, in the absence of a waiver.\nIf the attorney is hired as a \xe2\x80\x9cspecial government em ployee,\xe2\x80\x9d i.e., expected to serve 130 days or\nless in any 365-day period, he will be subject to representation and compensation restrictions\nonly with respect to m atters in which he has participated personally and substantially w hile in\ngovernment or which are pending in the Department o f Justice. The D epartm ent's regulation\nprohibiting the outside practice of law does not apply to special government employees.\nUnder 18 U.S.C. \xc2\xa7 208 all government employees must disqualify themselves from participating\nfor the governm ent in any matters in which they or their employers, among others, have a\nfinancial interest.\n\nAugust 1, 1983\n\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nA s s o c ia t e A t t o r n e y G\n\neneral\n\nWe have been asked to advise you whether, from the perspective of conflict\nof interest and professional ethics, Mr. A may continue as a member of his law\nfirm once he has been employed by this Department as General Counsel to the\nPresident\xe2\x80\x99s Commission on Organized Crime. We understand that Mr. A is\npresently a senior partner at a law firm, and that he proposes to remain in the\nemploy of that firm on a salaried basis through December 1983. We understand\nthat Mr. A expects to be working on essentially three major matters for the firm\nduring this period. Two of those matters do not involve the United States. The\nthird involves his continued representation of domestic steel producers in steel\ndumping cases. At the same time that Mr. A is handling these private matters\nfor the law firm, he proposes to serve in the Department without federal\ncompensation. We understand that during this period the Department would\n123\n\n\x0chire Mr. A as a consultant pursuant to 5 U.S.C. \xc2\xa7 3109.1 Mr. A\xe2\x80\x99s proposed\nemployment status after December 31, 1983 has not been described to us, but\nwe presume that he will continue to serve, in some capacity, in the Department.\nAfter December 31, 1983, Mr. A believes he will be in a position to adjust his\nrelationship with the firm.\nIn general, we conclude that the ultimate decision in this matter involves\nfindings of fact which this Office is not in a position to make. We will therefore\ndescribe to you the factual test that you should apply and the legal conse\xc2\xad\nquences of the two alternative factual outcomes. More specifically, our conclu\xc2\xad\nsions can be summarized as follows:\n(1) If Mr. A will be a regular government employee (i.e., ex\xc2\xad\npected to serve more than 130 days in any period of 365 days),\nhis proposed dual employment will present significant and prob\xc2\xad\nably insurmountable problems under the conflict of interest\nstatutes and the Department\xe2\x80\x99s Standards of Conduct.\n(2) If Mr. A will be a \xe2\x80\x9cspecial government employee\xe2\x80\x9d {i.e.,\nexpected to serve 130 days or less during any period of 365\ndays) his proposed dual employment can be accomplished with\xc2\xad\nout violating the statutes or regulations.\n(3) In either event, the Department should consider as a policy\nmatter whether it wishes to permit an employee to serve simulta\xc2\xad\nneously in a private law firm and in this Department and it\nshould reach an understanding with Mr. A concerning various\nareas where issues of impropriety (actual or apparent) may arise.\nI. Rules Applicable To Regular Government Employees\nIf Mr. A is deemed to be a regular government employee, he will be subject\nto the full restrictions of the Federal conflict of interest statutes, 18 U.S.C.\n\xc2\xa7\xc2\xa7 202-209, and this Department\xe2\x80\x99s Standards of Conduct, 28 C.F.R. Part 45.\nAmong other things, this will mean that Mr. A will be prohibited from acting as\nagent or attorney for anyone other than the United States in any particular\nmatter in which the United States is a party or has a direct and substantial\n1 W e h ave left it to the Justice M anagement D ivision to d eterm ine w hether it is appropriate to hire Mr. A as\na co n su ltan t in th is co n tex t, and w e will lik ew ise leave the adm inistrative aspects of his appointm ent to their\ncharge. S ee g en era lly D ecisions o f the C o m p tro ller G eneral, B - 192406 (O ct. 12, 1978) (dealing w ith the\nh iring o f law yers un d er 5 U .S.C . \xc2\xa7 3109); B -l 14868-18 (Feb. 10, 1978) (sam e).\nW e also have considered the legality of th is D epartm ent's acceptance o f M r. A \xe2\x80\x99s voluntary services in light\no f 31 U .S.C . \xc2\xa7 1342. In o ur v iew , it is appropriate for this D epartm ent to accept the voluntary services o f Mr.\nA in this c o n tex t because 1) he w ill be serving as a consultant under 5 U .S.C . \xc2\xa7 3109, a position fo r which\nthere is no m inim um salary set b y law and 2) h e w ill execute a docum ent clearly indicating that he waives any\nright to co m pensation from the United S ta te s for his services through December 1983. See generally\n\xe2\x80\x9c E m ploym ent S tatus o f \xe2\x80\x98V olunteers\xe2\x80\x99 C onnected W ith Federal A dvisory Com m ittees,\xe2\x80\x9d 6 Op. O.L.C. 160\n(1982). If M r. A is unw illing to execute such a docum ent, the D epartm ent may not accept his voluntary\nservices.\n\n124\n\n\x0cinterest. See 18 U.S.C. \xc2\xa7 205. In addition, he would be prohibited from receiv\xc2\xad\ning compensation for services rendered by himself or another in such matters.\nSee 18 U.S.C. \xc2\xa7 203. As we see it, these provisions will effectively bar Mr. A\nfrom his proposed participation in the steel dumping cases on behalf of the\nprivate clients. See also 28 C.F.R. \xc2\xa7 45.735-9 (prohibiting the outside practice\nof law by Department of Justice employees, absent a waiver by the Deputy\nAttorney General or the presence of other factors not relevant here).2\nAlthough there are, of course, other conflict of interest and ethical restric\xc2\xad\ntions that would apply to Mr. A as a regular government employee, we have not\nundertaken a full description of them in this memorandum. If you find that Mr.\nA will in fact be a regular government employee, and you are inclined to pursue\nhis dual employment proposal despite the restrictions described above, we will\nprovide you with materials that describe more fully the ethics requirements for\nregular Department of Justice employees.\nII. Rules Applicable to Special Government Employees\nThe conflict of interest statutes impose fewer and less rigorous restrictions\non certain short-term or intermittent employees called \xe2\x80\x9cspecial government\nemployees.\xe2\x80\x9d If Mr. A meets the test for special government employment\ndescribed below, he would be subject only to these less rigorous restrictions\nand he would not be faced with statutory requirements that are necessarily and\nsubstantially inconsistent with his dual employment proposal.\nAs a special government employee, Mr. A would be subject to the represen\xc2\xad\ntation and compensation restrictions of 18 U.S.C. \xc2\xa7\xc2\xa7 203 and 205 only with\nrespect to matters (1) in which he has participated personally and substantially\nwhile in government; or (2) which are pending in the Department of Justice.3\nSee 18 U.S.C. \xc2\xa7\xc2\xa7 203, 205. See also 18 U.S.C. \xc2\xa7 209 (exempting special\ngovernment employees from its restriction on private sources of compensation\nfor services rendered to the government). Similarly, the Department\xe2\x80\x99s regula\xc2\xad\ntion restricting outside professional practice does not apply to special govern\xc2\xad\nment employees. See 28 C.F.R. \xc2\xa7 45.7359(b).\nIn addition to the limited application of \xc2\xa7\xc2\xa7 203 and 205, as a special govern\xc2\xad\nment employee Mr. A would also be subject to the full disqualification rule of\n2 It is not necessary at this point, regardless o f the findings o f fact made, for us to reach the question o f\nw hether Mr. A would qualify for a w aiver o f the D epartm ent's regulation. If you decide Mr. A w ill be a\nregular governm ent em ployee and that the obstacles o f 18 U.S.C. \xc2\xa7\xc2\xa7 203 and 205 can be overcom e, we w ould\nbe happy to provide the D eputy A ttorney General with w hatever assistance he requires in considering a\npossible waiver.\n3 T his latter restriction w ould not apply until Mr. A had actually served in the D epartm ent fo r sixty-one\ndays. See 18 U.S.C. \xc2\xa7\xc2\xa7 203(c) and 205. The D epartm ent has not generally view ed m atters in litigation before\nfederal courts to be pending in this D epartm ent, but we do consider investigative m atters and other p re\xc2\xad\nlitigation m atters (such as adm inistrative tort claim determ inations) to be pending in the D epartm ent for\npurposes o f these statutes. In light o f these precedents, we w ould be reluctant to assert that contact by Mr. A\nwith this D epartm ent relating to the steel cases w ould violate \xc2\xa7\xc2\xa7 203 or 205. N onetheless, w e would\nencourage you as a m atter o f discretion to lim it the extent o f Mr. A \xe2\x80\x99s direct contact with D epartm ent officials\non these cases during the tenure o f his governm ent em ploym ent.\n\n125\n\n\x0c18 U.S.C. \xc2\xa7 208.4 Section 208 requires employees (including special govern\xc2\xad\nment employees) to disqualify themselves from participating for the govern\xc2\xad\nment in any matters in which they or, among others, their employers have a\nfinancial interest. So long as Mr. A maintains an employment relationship with\nhis law firm, he would have to disqualify himself from any government matters\nin which the firm has a client or other financial interest.5 Given the limited\nsubject matter of his proposed duties, we would not anticipate that this restric\xc2\xad\ntion will present any significant obstacle to Mr. A\xe2\x80\x99s dual employment proposal.6\nML Test for Special Goveriminnieinit Employmeinit\n\nThe term \xe2\x80\x9cspecial Government employee\xe2\x80\x9d is defined to include \xe2\x80\x9can officer\nor employee of the executive or legislative branch of the United States Govern\xc2\xad\nment . .. who is retained, designated, appointed, or employed to perform, with\nor without compensation, for not to exceed one hundred and thirty days in any\nperiod of three hundred and sixty-five days, temporary duties either on a full\ntime or intermittent basis.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 202. To be so appointed, the Depart\xc2\xad\nment must in good faith estimate in advance of appointment that the individual\nwill serve for no more than 130 days in the succeeding 365-day period,\nbeginning on the day of appointment. In estimating the number of days to be\nserved, the Department must count as a full day any day (including Saturday,\nSunday or holiday) during which any time is expected to be devoted to\nperforming government duties. See Federal Personnel Manual, Ch. 735, Ap\xc2\xad\npendix C.\nThe test for special government employment, of course, must be applied\nwithout regard to any preferred result. In this case, you must consider Mr. A\xe2\x80\x99s\nanticipated employment through August o f 1984. Although we understand that\nMr. A\xe2\x80\x99s plans beyond December 1983 may be somewhat vague, this fact does\nnot relieve you of responsibility for making a good faith estimate of his\nemployment for the entire 365-day period.\nAs a general matter, employees are presumed to be regular government\nemployees unless their appointing Department is comfortable with making an\nestimate that the employee will be needed to serve 130 days or less. The 130day standard can be met because (1) the length of employee\xe2\x80\x99s entire tenure with\nthe government will be less than 130 days; (2) the employee is expected to\n4 M r. A w ill a lso be subject to the post-em ploym ent restrictions o f 18 U .S.C \xc2\xa7 207(a) and (b). These postem ploym ent restrictions w ill be specific to M r. A\xe2\x80\x99s work and responsibilities. In addition, he will be subject\nto the D ep artm en t's Standards o f Conduct, 28 C.F.R. Part 45 and the Code o f Professional Responsibility of\nthe A m erican B ar A ssociation. W e will be available to provide specific ethics and post-em ploym ent advice to\nM r. A upon request.\n3 T his D epartm ent ordinarily requires disqualification from any m atter in which the law firm represents a\nc lie n t having such a financial interest, even though the financial interest in the m atter may actually belong to\nthe clien t rath er than the firm .\n6 O u r anticipation in this regard must be evaluated in the context o f our lim ited know ledge and understand\xc2\xad\ning o f the subject m atter o f Mr. A \xe2\x80\x99s proposed duties. Mr. A \xe2\x80\x99s firm is a w ell-know n firm that represents\nessentially Fortune 500 com panies. Your o ffice should consider, based upon your expertise in these matters,\nto w hat e x ten t M r. A \xe2\x80\x99s clients w ould potentially be involved. In o rd er to accom plish this consideration, Mr. A\nshould probably be required to provide w hatever listing o f clients w ould be helpful.\n\n126\n\n\x0cserve only intermittently over a period of more than 130 days; or (3) some\ncombination of the above. Although it is possible that the proposed duties will\nnot continue for the full three years presently anticipated, we think that you\nmust presume that they will. Accordingly, you must presume that Mr. A will be\nneeded to serve for the full 365-day period relevant for purposes of the special\ngovernment employee test. This means that Mr. A would only qualify as a\nspecial government employee, if you can estimate, in good faith, that the\nDepartment\xe2\x80\x99s need for his services will be so intermittent that they will not\ninvolve more than 130 days, in whole or in part, during any 365-day period. In\nmaking this factual determination you should rely on your own view of the\nneeds of the Department, rather than on the employee\xe2\x80\x99s views of the time he\nwill devote to the job. You should bring to the decision your own knowledge of\nthe nature of the work, and the Department\xe2\x80\x99s expectations. You should also\nconsult with the relevant Department officials about their expectations for the\nwork to be preferred.\nIV. Other Considerations\nAssuming that you are satisfied that Mr. A\xe2\x80\x99s dual employment proposal can\nbe compatible with the statutes described above, you should also consider the\nproposal from a policy perspective. As you know, the Department normally\nrequires its lawyers to sever all connections with law firms. See 28 C.F.R.\n\xc2\xa7 45.735-9. We assume that this policy represents an attempt to avoid actual\nand apparent conflicts of interest, and a desire to demand the undivided\nprofessional attention of the Department\xe2\x80\x99s lawyers. Although the latter policy\nmay be less compelling in a case like this where the employee\xe2\x80\x99s services may\nindeed be needed only in a part-time capacity, the concern about actual or\napparent impropriety persists. For this reason, we would recommend, if you go\nforward with the dual employment proposal, that you reach an understanding\nwith Mr. A concerning limiting his contacts with this Department on behalf of\nprivate clients \xe2\x80\x94 for example, that he would not participate in settlement\ndiscussions in the steel cases nor attempt to gamer the Department\xe2\x80\x99s support of\nlegislation that would benefit domestic steel producers.\nAlthough no such problems may in fact arise, it would be prudent to antici\xc2\xad\npate and avoid them to the extent feasible.7\nR a lph W . T arr\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n7 Along the sam e lines, you should reach some understanding with Mr. A concerning the problem o f using\nsupport services and legal research assistance from his law firm . As you know , this D epartm ent does not have\nstatutory authority to accept gifts, and any donation o f such services by the law firm w ould constitute an\nunauthorized augm entation o f this D epartm ent's appropriations. See generally General A ccounting O ffice,\nPrinciples o f F ederal A ppropriations Law 5 -6 2 , 5 -9 4 (1982). M oreover, use o f the firm \xe2\x80\x99s associates and\nsupport staff w ould constitute a greater com m ingling o f the firm and the Department than we have contem \xc2\xad\nplated in this opinion, and may well extend the potential for conflicts o f interest beyond sim ply those cases\nhandled by Mr. A him self.\n\n127\n\n\x0c"


b'Assertion of Executive Privilege by the Chairman\nof the Atomic Energy Commission\nQuestions put to the Chairman of the Atomic Energy Commission regarding conversations he may have\nhad with the President or his assistants in the White House come within the scope of the executive\nprivilege, whereby information, papers, and communications which the President or the heads of the\nexecutive departments or agencies deem confidential in the public interest need not be disclosed to a\ncongressional committee. In addition, the questions are within the scope of the President\xe2\x80\x99s letter of\nMay 17, 1954 to the Secretary of Defense setting forth the Administration\xe2\x80\x99s policy that, in the public\ninterest, advisement on official matters between employees of the Executive Branch of the government be kept confidential, and any conversations, communications, documents or reproductions\nconcerning such advisement not be disclosed in congressional hearings.\nEven if it were conceded only for the purpose of argument that the Atomic Energy Commission is a\ntypical independent regulatory commission, which is not in one branch of the government to the\nexclusion of others but straddles at least two branches so as to be part of each, there is historical\nprecedent indicating that, as to the executive functions of such a commission, its officers and\nemployees have a right, and, when directed by the President, a duty to invoke the executive privilege.\nThe so-called fraud exception to executive privilege does not exist. The precedent for the so-called\nexception really evidences the unlimited discretion of the President to determine whether the public\ninterest requires that the executive privilege be invoked or waived in a particular case.\n\nJanuary 5, 1956\n\nMEMORANDUM FOR THE ASSISTANT ATTORNEY GENERAL\nOFFICE OF LEGAL COUNSEL\nThe Honorable Lewis L. Strauss, Chairman, Atomic Energy Commission, in a\nletter to the Attorney General dated December 7, 1955, states that at a hearing on\nDecember 5, 1955 before the Antitrust and Monopoly Subcommittee of the Senate\nJudiciary Committee regarding the Mississippi Valley Generating Company\ncontract, he was asked to testify \xe2\x80\x9cas to conversations or discussions I may have\nhad with the President or his Assistants in the White House with respect to the\nnegotiation of the contract, the decision to bring the contract to an end, and the\naction by the Commission, on advice of its General Counsel, that the contract\nshould not be recognized as a valid obligation of the Government on the ground of\npossible conflicts of interest.\xe2\x80\x9d Chairman Strauss reports that he declined to answer\nthe above inquiry on the basis of the executive privilege under the constitutional\ndoctrine of separation of powers.\nIt is the conclusion of this memorandum that the questions set forth in Chairman Strauss\xe2\x80\x99s letter come within the scope of the executive privilege, whereby\ninformation, papers, and communications which the President or the heads of the\nexecutive departments or agencies deem confidential in the public interest need not\nbe disclosed to a congressional committee. It is the further conclusion of this\nmemorandum that the questions are within the scope of the President\xe2\x80\x99s letter of\n\n468\n\n\x0cAssertion of Executive Privilege by the Chairman of the Atomic Energy Commission\n\nMay 17, 1954 to the Secretary of Defense, setting forth the Administration\xe2\x80\x99s\npolicy that, in the public interest, advisement on official matters between employees of the Executive Branch of the government is to be kept confidential, and any\nconversations, communications, documents, or reproductions concerning such\nadvisement is not to be disclosed in congressional hearings. The President\xe2\x80\x99s letter\nto the Secretary of Defense states in part:\nWithin this Constitutional framework each branch should cooperate fully with each other for the common good. However, throughout\nour history the President has withheld information whenever he\nfound that what was sought was confidential or its disclosure would\nbe incompatible with the public interest or jeopardize the safety of\nthe Nation.\nBecause it is essential to efficient and effective administration that\nemployees of the Executive Branch be in a position to be completely\ncandid in advising with each other on official matters, and because it\nis not in the public interest that any of their conversations or communications, or any documents or reproductions, concerning such advice be disclosed, you will instruct employees or your Department\nthat in all of their appearances before the Subcommittee of the Senate Committee on Government Operations regarding the inquiry now\nbefore it they are not to testify to any such conversations or communications or to produce any such documents or reproductions. This\nprinciple must be maintained regardless of who would be benefited\nby such disclosures.\n100 Cong. Rec. 6621 (1954); Letter to the Secretary of Defense Directing Him to\nWithhold Certain Information from the Senate Committee on Government\nOperations, Pub. Papers of Pres. Dwight D. Eisenhower 483, 483\xe2\x80\x9384 (May 17,\n1954).\nI.\nThe President\xe2\x80\x99s letter to the Secretary of Defense is based on the constitutional\ndoctrine of separation of powers. Article II, Section 1 of the Constitution states\nthat \xe2\x80\x9c[t]he executive Power shall be vested in a President of the United States of\nAmerica.\xe2\x80\x9d Article II, Section 3 provides that the President \xe2\x80\x9cshall take care that the\nLaws be faithfully executed.\xe2\x80\x9d And the President\xe2\x80\x99s oath of office requires that he\n\xe2\x80\x9cfaithfully execute the Office of President of the United States,\xe2\x80\x9d and to the best of\nhis ability, \xe2\x80\x9cpreserve, protect and defend the Constitution of the United States.\xe2\x80\x9d\nU.S. Const. art. II, \xc2\xa7 1. Attorney General Cushing, in discussing the application of\nthe constitutional doctrine of separation of powers in order to determine the\n\n469\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nlegality of separate resolutions of the Senate and House of Representatives\nrequiring the Secretary of the Interior to pay a certain claim, succinctly set forth\nthe relationship between the Legislative and Executive Branches of the government, and the relationship between executive officials and of the government, and\nthe relationship between executive officials and the President. It was stated in\nResolutions of Congress, 6 Op. Att\xe2\x80\x99y Gen. 680 (1854), that:\nThe act of a Head of Department is, in effect, an act of the President. Now, the Constitution provides for co-ordinate powers acting\nin different and respective spheres of co-operation. The executive\npower is vested in the President, whilst all legislative powers are\nvested in Congress. It is for Congress to pass laws; but it cannot pass\nany law, which, in effect, coerces the discretion of the President, except with his approbation, unless by concurrent vote of two-thirds of\nboth Houses, upon his previous refusal to sign a bill. And the Constitution expressly provides that orders and resolutions, and other votes\nof the two Houses, in order to have the effect of law, shall, in like\nmanner, be presented to the President for his approval, and if not approved by him shall become law only by subsequent concurrence in\nvote of two-thirds of the Senate and House of Representatives.\nIf, then, the President approves a law, which imperatively commands a thing to be done, ministerially, by a Head of Department,\nhis approbation of the law, or its repassage after a veto, gives constitutionality to what would otherwise be the usurpation of executive\npower on the part of Congress.\nIn a word, the authority of each Head of Department is a parcel of\nthe executive power of the President. To coerce the Head of Department is to coerce the President. This can be accomplished in no other\nway than by a law, constitutional in its nature, enacted in accordance\nwith the forms of the Constitution.\nId. at 682\xe2\x80\x9383. It should be noted that Attorney General Cushing concludes in the\nabove quotation that Congress can coerce the action of an executive officer only\nby a law which is constitutional in its nature and operation and enacted in accordance with the procedures provided for by the Constitution. There is no law of the\nUnited States requiring the disclosure of information pertaining to the executive\nfunction of the government of the United States when the President has, in his\ndiscretion, determined that such information should not be disclosed in the public\ninterest. The enactment of such a law would, of course, raise a serious question of\nunconstitutional invasion by Congress of the powers of the Executive.\n\n470\n\n\x0cAssertion of Executive Privilege by the Chairman of the Atomic Energy Commission\n\nThe right of the Executive Branch to withhold from congressional committees\ninformation which the President or the head of an executive department or agency\nthinks should be withheld for the public interest is a principle which was recognized and utilized by President Washington. For over 150 years since the establishment of our constitutional form of government, the Presidents have successively established, by precedent, that they, and members of their cabinet and other\nheads of executive departments and agencies, have a privilege and discretion to\nkeep confidential, in the public interest, papers and information which require\nsecrecy. These precedents are set forth in (1) an article by Herman Wolkinson,\nDemands of Congressional Committees for Executive Papers, 10 Fed. B.J. 103\n(1948\xe2\x80\x9349), (2) a memorandum prepared for the Department of Justice by Mr.\nWolkinson, and (3) a May 17, 1954 memorandum to the President from the\nAttorney General, 100 Cong. Rec. 6621\xe2\x80\x9323 (1954). Most of the precedents involve\nrefusals by the President, cabinet officers, or officials of executive departments,\nacting pursuant to directions of the President or heads of departments. A few of the\nrecent precedents involve the independent regulatory commissions.\nThere have been a number of judicial decisions, both in the Supreme Court and\nlower courts, establishing the rule that information and papers which the President\nand heads of executive departments consider confidential, in the public interest,\nneed not be produced in court. These cases also hold that the decision as to\nwhether the information is confidential is entirely within the discretion of the\nExecutive. An excellent summary of the reasons which prevent disclosure of\nconfidential information by the executive departments, both to the Judicial Branch\nand to the Legislative Branch, is contained in a well-documented speech of\nSenator Jackson (who became a justice of the Supreme Court in 1893), in the\ncontroversy which Cleveland\xe2\x80\x99s administration had with the Senate over the refusal\nto disclose confidential information. Senator Jackson stated:\nSir, has this body, has the Congress of the United States any more\nauthority over papers in the Executive Departments of this Government than the co-ordinate independent branch of the Government\xe2\x80\x94\nthe judiciary? The judicial department of this Government has as\nmuch power and authority over all papers in the hands of the Executive or in any Department as the entire Congress has. When the rights\nof individuals, affecting their life, liberty, or property, are pending\nbefore the courts, the judicial department has as much power over\npapers as the Senate or the whole Congress; and yet it has been universally recognized from the very foundation of this Government\nthat the judicial department of the Government can not call for papers and procure them either from the President or the head of an\nExecutive department at its own will, but that the discretion rests\nwith the Executive and with the Departments how far and to what extend they will produce those pape[r]s.\n\n471\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n17 Cong. Rec. 2623 (Mar. 22, 1886).\nIn the famous case of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief\nJustice Marshall was presented with the problem of defining the limits at which the\njudiciary must stop when the head of an executive department invokes the\nprivilege that the information sought from him is confidential information and\ntherefore cannot be disclosed. The rule of law was stated by the Supreme Court as\nfollows:\nBy the constitution of the United States, the President is invested\nwith certain important political powers, in the exercise of which he is\nto use his own discretion, and is accountable only to his country in\nhis political character, and to his own conscience. To aid him in the\nperformance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.\nIn such cases, their acts are his act; and whatever opinion may be\nentertained of the manner in which executive discretion may be used,\nstill there exists, and can exist, no power to control that discretion.\nThe subjects are political. They respect the nation, not individual\nrights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived\nby adverting to the act of congress for establishing the department of\nforeign affairs. This officer, as his duties were prescribed by that act,\nis to conform precisely to the will of the President. He is the mere\norgan by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.\nBut when the legislature proceeds to impose on that officer other\nduties; when he is directed peremptorily to perform certain acts;\nwhen the rights of individuals are dependent on the performance of\nthose acts; he is so far the officer of the law; is amenable to the laws\nfor his conduct; and cannot at his discretion sport away the vested\nrights of others.\nId. at 165\xe2\x80\x9366. An examination of the facts surrounding the Mississippi Valley\nGenerating Company matter clearly indicates that the conversations, if any, of the\nofficials of the Atomic Energy Commission with the President and his White\nHouse assistants come within the category of those matters which Marshall termed\n\xe2\x80\x9cpolitical\xe2\x80\x9d and concerning which the Executive has complete discretion as to\nwhether such matters should be examined by the courts.\nIn regard to the intimate relationship between the President and his heads of\ndepartments, Marshall said:\n\n472\n\n\x0cAssertion of Executive Privilege by the Chairman of the Atomic Energy Commission\n\nThe intimate political relation subsisting between the president of the\nUnited States and the heads of departments, necessarily renders any\nlegal investigation of the acts of one of those high officers peculiarly\nirksome, as well as delicate; and excites some hesitation with respect\nto the propriety of entering into such investigation. Impressions are\noften received without much reflection or examination and it is not\nwonderful, that in such a case as this, the assertion, by an individual,\nof his legal claims in a court of justice[,] to which claims it is the duty of that court to attend[,] should at first view be considered by\nsome, as an attempt to intrude into the cabinet, and to intermeddle\nwith the prerogatives of the executive.\nIt is scarcely necessary for the court to disclaim all pretensions to\nsuch a jurisdiction. An extravagance, so absurd and excessive, could\nnot have been entertained for a moment. The province of the court is,\nsolely, to decide on the rights of individuals, not to inquire how the\nexecutive, or executive officers, perform duties in which they have a\ndiscretion. Questions in their nature political, or which are, by the\nconstitution and laws, submitted to the executive, can never be made\nin this court.\nId. at 169.\nOther decisions and trials in which the executive privilege to withhold confidential information from disclosure in a court was either recognized or successfully asserted are United States v. Smith, 27 F. Cas. 1192 (C.C.N.Y. 1806) (No.\n16,342); Mississippi v. Johnson, 71 U.S. 475 (1866); Totten v. United States, 92\nU.S. 105 (1875); Appeal of Hartranft, 85 Pa. 433 (1877); Trial of Thomas Cooper,\nfor a Seditious Libel, in the Circuit Court of the United States for the Pennsylvania\nDistrict (Philadelphia, 1800), in Francis Wharton, State Trials of the United States\nDuring the Administrations of Washington and Adams 659 (1849); 1 David\nRobertson, Reports of the Trials of Colonel Aaron Burr (1808). In the case of\nMyers v. United States, 272 U.S. 52 (1926), Chief Justice Taft, in analyzing the\nrelationship between the President and the heads of executive departments, said in\nthe majority opinion:\nThis field is a very large one. It is sometimes described as political. . . . Each head of a department is and must be the President\xe2\x80\x99s\nalter ego in the matters of that department where the President is\nrequired by law to exercise authority.\nId. at 132\xe2\x80\x9333. It should be noted that there are no judicial precedents as to the\nexistence or extent of the executive privilege in the area of congressional investigation. However, it is submitted that Senator Jackson\xe2\x80\x99s argument, set forth above,\n\n473\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nto the effect that the executive privilege in a congressional inquiry is just as great,\nif not greater, than is the scope of the privilege in the courts, is a correct analysis of\nthe law.\nThere are a number of opinions of the Attorney General which deal with the\nexistence and extent of the executive privilege in the case of judicial and congressional inquiry. Attorney General Speed stated the principle to President Lincoln:\nUpon principles of public policy there are some kinds of evidence\nwhich the law excludes or dispenses with. Secrets of state, for instance, cannot be given in evidence, and those who are possessed of\nsuch secrets are not required to make disclosure of them. The official\ntransactions between the heads of departments of the Government\nand their subordinate officers are, in general, treated as \xe2\x80\x9cprivileged\ncommunications.\xe2\x80\x9d The President of the United States, the heads of\nthe great departments of the Government, and the Governors of the\nseveral States, it has been decided, are not bound to produce papers\nor disclose information communicated to them where, in their own\njudgment, the disclosure would, on public considerations, be inexpedient. These are familiar rules laid down by every author on the law\nof evidence.\nRecords of Courts-Martial, 11 Op. Att\xe2\x80\x99y Gen. 137, 142\xe2\x80\x9343 (1865). Other opinions\ndealing with the executive privilege in a court are to be found at Civil Service\nCommission\xe2\x80\x94Production of Records, 20 Op. Att\xe2\x80\x99y Gen. 557, 557\xe2\x80\x9358 (1893);\nExecutive Department\xe2\x80\x94Official Records\xe2\x80\x94Testimony, 25 Op. Att\xe2\x80\x99y Gen. 326\n(1905).\nIn President Theodore Roosevelt\xe2\x80\x99s administration, Attorney General Bonaparte\nstated that the head of the Bureau of Corporations was not obliged to deliver\npapers to a Senate committee, pursuant to a subpoena served upon him. Instead,\nthe Attorney General counseled the head of the Bureau to deliver the records to\nPresident Roosevelt, who had the authority to determine the propriety of making\npublic the information sought by the Senate. Commissioner of Corporations\xe2\x80\x94\nRight of Senate Committee to Ask for Information, 27 Op. Att\xe2\x80\x99y Gen. 150, 156\n(1909). President Theodore Roosevelt decided that the Senate was not to see the\npapers, wrote a letter telling them so, and challenged the Senate to impeach him to\nget them. The Letters of Archie Butt: Personal Aide to President Roosevelt 305\xe2\x80\x9306\n(Lawrence F. Abbott ed., 1924); Edward S. Corwin, The President: Office and\nPowers 281, 428 n.45 (1st ed. 1940).\nDuring President Franklin D. Roosevelt\xe2\x80\x99s administration, Attorney General\nJackson, in a letter to Representative Carl Vinson, Chairman, House Committee on\nNaval Affairs, set forth the Justice Department\xe2\x80\x99s policy that all investigative\nreports are confidential documents of the executive department and that congressional access thereto was not in the public interest. The executive and legal\n\n474\n\n\x0cAssertion of Executive Privilege by the Chairman of the Atomic Energy Commission\n\nprecedents behind the theory of executive privilege were set forth in some detail in\nthe letter which is published in Position of the Executive Department Regarding\nInvestigative Reports, 40 Op. Att\xe2\x80\x99y Gen. 45 (1941).\nA large number of eminent legal scholars and text writers have expressed the\nopinion that an executive privilege of secrecy exists as to confidential official\ndocuments, and for communications between government officials. See 8 Wigmore\non Evidence \xc2\xa7 2378(3) (3d ed. 1940); Edward Campbell Mason, Congressional\nDemands Upon the Executive for Information, in 5 Papers of the American\nHistorical Association 367 (1891); John Philip Hill, The Federal Executive 55\xe2\x80\x9356\n(1916); 3 Westel Woodbury Willoughby, The Constitutional Law of the United\nStates \xc2\xa7 968, at 1488\xe2\x80\x9391 (2d ed. 1929); John H. Finley & John F. Sanderson, The\nAmerican Executive and Executive Methods 199\xe2\x80\x93200, 264\xe2\x80\x9365 (1908); Herman\nFiner, Questions to the Cabinet in the British House of Commons: Their Applicability to the United States Congress, in Staff of Joint Comm. on the Organization\nof Congress, 79th Cong., The Organization of Congress: Suggestions for Strengthening Congress by Members of Congress and Others 49, 56\xe2\x80\x9357 (Comm. Print\n1946); Ernest J. Eberling, Congressional Investigations 282 (1928).\nEdward S. Corwin, in The President: Office and Powers, recognizes in the first\nedition of his book (1940) the existence of an executive privilege in the field of\ncongressional investigations. However, the author states that, should a cabinet\nofficer fail to respond to the subpoena of congressional committee, he saw no\nreason why Congress could not hold the officer in contempt. Id. at 281\xe2\x80\x9382. In the\nthird edition of his book (1948), Mr. Corwin leaves out the above observation and\ndeals only with the precedents indicating the existence of an executive privilege in\nthe field of congressional inquiry for not only the President, but cabinet officers\nand executive officers and employees when they act pursuant to the direction of\nthe President or heads of departments in refusing to disclose confidential executive\ninformation. Id. at 136\xe2\x80\x9343.\nPhilip R. Collins, in an article entitled The Power of Congressional Committees\nof Investigation to Obtain Information from the Executive Branch: The Argument\nfor the Legislative Branch, 39 Geo. L.J. 563 (1950\xe2\x80\x9351), presents an argument\nagainst the existence of an executive privilege, particularly for cabinet officers and\nexecutive employees when called as witnesses before congressional committees.\nThe argument is based mainly on the congressional debates during Cleveland\xe2\x80\x99s\nand Truman\xe2\x80\x99s administrations, when the Executive was at logger-head with a\nRepublican Congress. In both cases, much was said, but nothing was done by\nCongress.\nAt the request of Senator Langer, the Legislative Reference Service of the\nLibrary of Congress prepared a study entitled Congressional Power of Investigation, S. Doc. No. 83-99 (1954). On pages 20\xe2\x80\x9327 the analysis deals with the question of investigation of the Executive Branch. The conclusion reached is that there\nis no categorical answer to the question how far Congress can go in requiring\n\n475\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ninformation from the Executive Branch. It is recognized that the only precedents\nare historical ones.\nII.\nAn argument may be made by the Senate subcommittee to the effect that the\nexecutive privilege and direction concerning the privilege in the President\xe2\x80\x99s letter\nof May 17, 1954, to the Secretary of Defense, apply only to the executive departments of the government and not to the independent regulatory commissions. An\nexamination of the historical precedents and the President\xe2\x80\x99s letter concerning the\nexercises of the executive privilege clearly indicate that the precedents and letter\napply to the entire Executive Branch and function of the government, and not\nalone to the ten executive departments. It should be noted that irrespective of a\ndetermination of the problem of the precise position of the Atomic Energy\nCommission within the framework of the federal government, it is clear that the\nMississippi Valley Generating Company contract, with which the inquiry in\nquestion is concerned, was negotiated, cancelled and rescinded by the Atomic\nEnergy Commission as an exercise of the executive function of government.\nAn examination of the Atomic Energy Act of 1954, 42 U.S.C. \xc2\xa7\xc2\xa7 2011\xe2\x80\x932281\n(1952 Supp. II), indicates that the Atomic Energy Commission is an independent\nestablishment of the government, in the sense that it is outside the ten executive\ndepartments, and is not subject to direct supervision or control by any Cabinet\nSecretary. An examination of the Act also indicates that the Commission primarily\nexercises a non-regulatory executive function, and only incidentally thereto, any\nregulatory power. The principal functions of the Atomic Energy Commission, as\nset forth in the Atomic Energy Act of 1954, 42 U.S.C. \xc2\xa7 2013, are (1) the conducting, assisting, and fostering of research and development in order to encourage the\nmaximum scientific and industrial progress in the field of atomic energy; (2) the\nformulation of a program for the dissemination of unclassified scientific and\ntechnical information, and the control, dissemination and declassification of\nrestricted data, subject to appropriate safeguards, so as to encourage scientific and\nindustrial progress in the field of atomic energy; (3) the conducting of a program\nof government control of the possession, use, and production of atomic energy and\nspecial nuclear material so as to make the maximum contribution to the common\ndefense and welfare of the nation; (4) the development of a program to encourage\nwidespread participation in the development and utilization of atomic energy for\npeaceful purposes to the maximum extent consistent with the common defense and\nthe health and safety of the public; (5) the conducting of a program of international\ncooperation to promote the common defense and security of the nation, and to\nmake available to cooperating nations the benefits of the peaceful application of\natomic energy; and (6) the administration of a program to carry out the above\n\n476\n\n\x0cAssertion of Executive Privilege by the Chairman of the Atomic Energy Commission\n\npolicies, and to keep Congress currently informed so that it may take such further\nlegislative action as may be necessary.\nIn carrying out the above functions, which are executive in nature, the Atomic\nEnergy Commission has been given, by Congress, the power to regulate the\nproduction and use of atomic energy for commercial and medical purposes through\na system of licenses issued pursuant to rules and regulations of the Commission.\nThe Commission is also authorized to conduct hearings, make findings, and\nregulate the patent licensing of inventions or discoveries useful in the peaceful\nproduction and utilization of atomic energy. Such regulatory powers as the\nCommission has are incidental to the exercise by the Commission of its executive\nfunction of operating for the federal government a monopoly of the production and\nuse of atomic energy. In this way, the Atomic Energy Commission differs\nbasically from such regulatory commissions as the Interstate Commerce Commission, Securities and Exchange Commission, Federal Trade Commission, etc.,\nwhich are agencies that exercise governmental control primarily by way of quasilegislative or quasi-judicial procedures over otherwise federally uncontrolled\nprivate business affairs or property interests.\nFrom an analysis of its functions, the Atomic Energy Commission appears to be\nan establishment, within the Executive Branch of the government which has been\ngiven quasi-legislative and quasi-judicial powers to be used incidentally in\ncarrying out its principal executive functions. The granting of quasi-legislative or\nquasi-judicial powers to a governmental establishment which is primarily executive in nature is by no means novel. One example is the Secretary of Agriculture\nwho, though clearly an executive officer within the Executive Branch of the\ngovernment, has under the Packers and Stockyards Act, 7 U.S.C. \xc2\xa7\xc2\xa7 181\xe2\x80\x93231\n(1952), been given quasi-legislative and quasi-judicial powers by Congress.\nAnother excellent example is that of the Tennessee Valley Authority (\xe2\x80\x9cTVA\xe2\x80\x9d). In\nthe case of Morgan v. TVA, 115 F.2d 990 (6th Cir. 1940), the issue concerned the\npower of the President to remove an officer of the TVA. In the case of Myers v.\nUnited States, 272 U.S. 52 (1926), the Supreme Court held that the President\xe2\x80\x99s\nremoval powers were unrestrictable as to purely executive officers. However, in\nthe case of Humphrey\xe2\x80\x99s Executor v. United States, 295 U.S. 602 (1935), the\nSupreme Court decided that in the case of an agency such as the Federal Trade\nCommission, which the court held exercised primarily quasi-legislative and quasijudicial powers and only incidentally thereto any executive function, Congress\ncould constitutionally limit the President\xe2\x80\x99s removal powers. Therefore, to determine the issue in the Morgan case the Sixth Circuit had to determine what the\nposition of the TVA was in the framework of the federal government. The court\nstated:\nIt requires little to demonstrate that the Tennessee Valley Authority\nexercises predominantly an executive or administrative function. To\n\n477\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nit has been entrusted the carrying out of the dictates of the statute to\nconstruct dams, generate electricity, manage and develop government property. Many of these activities, prior to the setting up of the\nT.V.A., have rested with the several divisions of the executive\nbranch of the government. True, it is, that in executing these administrative functions, the Board of Directors is obliged to enact bylaws, which is a legislative function, and to make decisions, which is\nan exercise of function judicial in character. In this respect its duties\nare, in no wise, different, except perhaps in degree, from the duties of\nany other administrative officers or agencies, or the duties of any\nother Board of Directors, either private or public. Whatever their\ncharacter, they are but incidental to the carrying out of a great administrative project. The Board does not sit in judgment upon private\ncontroversies, or controversies between private citizens and the government, and there is no judicial review of its decisions, except as it\nmay sue or be sued as may other corporations. It is not to be aligned\nwith the Federal Trade Commission, the Interstate Commerce Commission, or other administrative bodies mainly exercising clearly\nquasi-legislative or quasi-judicial functions\xe2\x80\x94it is predominantly an\nadministrative arm of the executive department. The rule of the\nHumphrey case does not apply.\n115 F.2d at 993\xe2\x80\x9394. The court held that the doctrine of the Myers case applied, and\nthat the President had unrestricted power to remove the officers of the TVA. It is\nsubmitted that the position of the Atomic Energy Commission within the framework of the federal government is closely analogous to that of the Tennessee\nValley Authority.\nIt is clear, therefore, that the executive privilege and direction concerning said\nprivilege, which was the subject of the President\xe2\x80\x99s letter of May 17, 1954 to the\nSecretary of Defense, apply to the questions which Chairman Strauss has referred\nto in his letter to the Attorney General because first the questions clearly involve\nthe carrying out of the executive function by Chairman Strauss, and second\nbecause the officers of the Atomic Energy Commission, due to the nature of the\nCommission\xe2\x80\x99s functions, are officers of a governmental establishment within the\nExecutive Branch of the government, and as such are subject to the President\xe2\x80\x99s\ndirection concerning the exercise of the executive privilege.\nHowever, even if it were conceded only for the purpose of argument that the\nAtomic Energy Commission is a typical independent regulatory commission,\nwhich is not in one branch of the government to the exclusion of others but\nstraddles at least two branches so as to be part of each, there is historical precedent\nindicating that, as to the executive functions of such a commission, its officers and\nemployees have a right, and, when directed by the President, a duty to invoke the\n\n478\n\n\x0cAssertion of Executive Privilege by the Chairman of the Atomic Energy Commission\n\nexecutive privilege. Such an historical precedent has been established in connection with a congressional investigation of the Federal Communications Commission. On January 19, 1943, the House of Representatives appointed a Select\nCommittee to Investigate the Federal Communications Commission. The committee was authorized to require by subpoena the attendance of witnesses and the\nproduction of books and papers. James L. Fly, Chairman of the Federal Communications Commission and Chairman of the Board of War Communications, was\nsubpoenaed as a witness to appear before the aforesaid committee. Mr. Fly\nappeared on July 9, 1943, but did not produce the records described in the\nsubpoena. He told the committee that he was bound by the decision of the Board\nof War Communications, of which he was chairman, not to divulge the records in\nquestion; and that even if he had the documents in his custody, he would have no\nchoice but to decline to hand them over to the committee. The records in question\nwere in the possession of Mr. Denny, General Counsel of the Federal Communications Commission, who was present at the time Mr. Fly was testifying before the\ncommittee. Mr. Denny had also been subpoenaed. He advised the committee that\nhe had possession of the papers called for. Neither Mr. Denny nor Mr. Fly\nexhibited the records to the committee. Both felt bound by the decision of the\nBoard of War Communications. Study and Investigation of the Federal Communications Commission: Hearings Before the Select H. Comm. to Investigate the Federal Communications Commission, 78th Cong., pt. 1, at 46\xe2\x80\x9367 (1943). It is\nsubmitted that the above rule and precedent have a firm legal basis in the constitutional doctrine of separation of powers and in the constitutional provisions that all\nexecutive power is vested in the President of the United States, and that the\nPresident shall take care that the laws be faithfully executed.\nIt may also be argued by the subcommittee that Congress occupies a special\nstatutory position in relation to the Atomic Energy Commission, and that such\nrelationship requires a disclosure by Chairman Strauss of the conversations in\nquestion. Title 42, section 2252 of the U.S. Code provides in part that:\nThe Commission shall keep the Joint Committee fully and currently\ninformed with respect to all of the Commission\xe2\x80\x99s activities. The Department of Defense shall keep the Joint Committee fully and currently informed with respect to all matters within the Department of\nDefense relating to the development, utilization, or application of\natomic energy. Any Government agency shall furnish any information requested by the Joint Committee with respect to the activities or responsibilities of that agency in the field of atomic energy.\nFirst of all, it should be noted that the above provisions relate to the Joint\nCommittee of Congress on Atomic Energy and not the Antitrust and Monopoly\nSubcommittee of the Senate Judiciary Committee, which is the subcommittee that\nhas made the inquiry in question. Second, and most important, from a reading of\n\n479\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n42 U.S.C. \xc2\xa7 2252 and an examination of the legislative history of the Atomic\nEnergy Act of 1946, and the Atomic Energy Act of 1954, it appears that section\n2252 requires the Commission to keep the Joint Committee advised of all the\nCommission\xe2\x80\x99s activities but not of each commissioner\xe2\x80\x99s individual activity in the\nline of official duty. In the committee report to the House of Representatives, H.R.\nRep. No. 83-2181 (1954), which was submitted at the time the Atomic Energy Act\nof 1954 was considered by the House, it is stated that:\nThe Commission and the Department of Defense are required to keep\nthe joint committee fully and currently informed with respect to all\natomic-energy matters. It is the intent of Congress that the joint\ncommittee be informed while matters are pending, rather than after\naction has been taken.\nId. at 29. The 1954 Act, as finally enacted, amended section 15 of the 1946 Act, 42\nU.S.C. \xc2\xa7 1815 (1952), by inserting the word \xe2\x80\x9call\xe2\x80\x9d in the provision requiring the\nCommission to keep the Joint Committee advised of all the Commission\xe2\x80\x99s\nactivities. The 1954 Act also included, for the first time, a similar provision in\nregard to the Department of Defense, and a requirement that all government\nagencies furnish to the Joint Committee, when requested, information concerning\nthe agency\xe2\x80\x99s activities or responsibilities in the field of atomic energy.\nSection 2252 appears to require the Commission to keep the Joint Committee\ncurrently advised of the action which the Commission, as a body, is taking in\nregard to atomic energy matters, but not of the conversations between the various\ncommissioners, between the commissioners and the employees of the Atomic\nEnergy Commission, or between the President or his officers and advisors, which\nmay or may not lead to final collective action by the Commission itself. In other\nwords, the section applies only to the action of the Commission as a collective\nbody, and not to individual action by the commissioners. Such a position is further\nstrengthened by the fact that section 2252 also requires the Defense Department,\nwhich is clearly within the Executive Branch, to keep the Joint Committee fully\nand currently informed with respect to all matters within that department relating\nto the development, utilization, or application of atomic energy. It is submitted\nthat, if Congress were to require the Atomic Energy Commission or the Department of Defense to keep Congress or a committee thereof advised of those matters,\nwhich it is here asserted Congress has not required under section 2252 (particularly in regard to conferences with the President, or his personal advisors or cabinet\nofficers), there would be presented a serious question whether Congress had\nexceeded the limit of its constitutional right to investigate the Executive Branch of\nthe government for the purpose of aiding further legislation. In effect, such a\nsweeping congressional requirement of disclosure of normally confidential\ninformation from within the Executive Branch of the government might amount to\nan unconstitutional exercise of the executive power by Congress, and a usurpation\n\n480\n\n\x0cAssertion of Executive Privilege by the Chairman of the Atomic Energy Commission\n\nby Congress of the Executive\xe2\x80\x99s exclusive constitutional duty to take care that the\nlaws are faithfully executed. This would be particularly true if, as previously\npointed out, Congress should, by section 2252, attempt to coerce the disclosure\nfrom within the Executive Branch of information which the President has held to\nbe confidential in the public interest. However, pursuant to the interpretation of\nsection 2252 as set forth in this memorandum, there is presented no constitutional\nproblem, and it is clear that the section does not curtail the right to invoke the\nexecutive privilege or affect the direction in the President\xe2\x80\x99s letter of May 17, 1954,\nthat the executive privilege is to be asserted when Congress makes an inquiry in\nthe nature of the questions reported by Chairman Strauss in his letter to the\nAttorney General.\nIt should be further noted that Chairman Strauss occupies a dual role. He is not\nonly the Chairman of the Atomic Energy Commission, but also special advisor on\natomic energy affairs to the President. It appears from a study of the Senate\nsubcommittee hearings that Chairman Strauss was asked to testify as Chairman of\nthe Atomic Energy Commission concerning conversations he may or may not have\nhad with the President or his White House assistants. If it should appear that the\ninquiry was put to Chairman Strauss as the President\xe2\x80\x99s special advisor, or if it\nshould develop that the conversations in question took place when Strauss was\nacting as the President\xe2\x80\x99s special advisor, there is absolutely no question that the\nprecedents hold that the executive privilege and the President\xe2\x80\x99s direction concerning the exercise of the privilege apply to the subcommittee inquiry of Chairman\nStrauss.\nIII.\nChairman Strauss states in his letter to the Attorney General that a suggestion\nwas made by the Senate Subcommittee that the executive privilege was not\navailable, within the doctrine laid down by the Supreme Court in the Teapot Dome\ncases, because of possible fraud in connection with the contract. It is the conclusion of this memorandum that the Supreme Court cases referred to do not create\nany fraud exception to the executive privilege, nor do the historical precedents\ncreate any such exception. There is historical precedent to the effect that where the\nquestion of fraudulent conduct by a government official is involved in a congressional investigation, the President, in the exercise of his unlimited discretion, may\nwaive the right of an official to invoke the executive privilege. However, it should\nbe noted that in the particular case with which this memorandum deals, there\nappears to be no evidence in the record of the Senate Subcommittee\xe2\x80\x99s hearings, or\nelsewhere, indicating any acts of fraud by the President, the President\xe2\x80\x99s White\nHouse advisors, Chairman Strauss, or any other government official or employee,\nwith the possible exception of Adolph Wenzell. The General Counsel of the\nAtomic Energy Commission, in his opinion to the Commission in regard to the\n\n481\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nMississippi Valley Generating Company contract, found that the contract should\nbe rescinded because of possible violation by Adolph Wenzell of a statute or\npublic policy against conflict of interests. There was no finding of fraud on the part\nof any other governmental official or employee. As to Adolph Wenzell, the Senate\nSubcommittee interrogated him at great length and no information demanded of\nhim was refused. It would not seem logical, assuming only for the purpose of\nargument that the Subcommittee\xe2\x80\x99s position is valid, that because one official may\nhave defrauded the government, ipso facto, the executive privilege may not be\nvalidly asserted by any other official of the Executive Branch where there is no\nevidence of fraud on the part of such official or other officials with whom he may\nor may not have discussed the matter.\nAs pointed out, however, the cases of McGrain v. Daugherty, 273 U.S. 135\n(1927), and Sinclair v. United States, 279 U.S. 263 (1929), which the Senate\nSubcommittee evidently was referring to as the Teapot Dome cases, do not in any\nway create an exception to the right of an officer or employee of the Executive\nBranch of the government to invoke the executive privilege in a congressional\ninvestigation when directed to, simply because the investigation concerns alleged\nfraudulent conduct in the government. The case of McGrain v. Daugherty involved\nan action against a private citizen for contempt of the Senate. Charges of misfeasance and nonfeasance in the Department of Justice in regard to the Teapot Dome\nmatter had been made in the Senate. As a result of the charges, both the Senate and\nHouse passed two measures taking the Teapot Dome litigation out of the control of\nthe Department of Justice, and authorized a select committee of five Senators to\ninvestigate the alleged failure of the Attorney General to take certain legal action\nand to investigate and report to the Senate the activities of the Attorney General\nand any of his assistants which would in any manner tend to impair their efficiency\nof influence as representatives of the government. In the course of the investigation, Mally Daugherty, the brother of Attorney General Daugherty, was properly\nserved with a subpoena to appear before the Senate Committee as a witness. Mally\nDaugherty refused to obey the subpoena and contempt action was brought against\nhim. It was argued that the purpose for which the witness\xe2\x80\x99s testimony was sought\nwas not to obtain information in aid of the legislative function, and that any\nevidence of such intention by the Senate was an afterthought in an attempt to\nlegalize the investigation. The Court said at page 178 of its opinion that the only\nlegitimate object the Senate could have in ordering the investigation was to aid it\nin legislating. The Court, however, found that the subject matter involved was such\nthat the presumption should be indulged that legislation was the real object. The\nCourt noted that the power and duties of the Attorney General and the duties of his\nassistants are all subject to regulation by congressional legislation, and that the\ndepartment is maintained, and its activities carried on, by yearly appropriations by\nCongress. The case stands for the proposition that investigation of the executive\n\n482\n\n\x0cAssertion of Executive Privilege by the Chairman of the Atomic Energy Commission\n\ndepartments for the purpose of obtaining information in aid of legislation is a\nproper function of Congress.\nThe case of Sinclair v. United States involved an action against a private citizen\nfor contempt of the Senate. The case arose out of an investigation by the Senate of\nalleged fraud in the execution of the lease of naval oil reserve lands to the\nMammoth Oil Company and a contract with the Pan American Petroleum and\nTransport Company. The Senate Committee was to report its findings to the Senate\nand determine if additional legislation were advisable. Harry F. Sinclair was\nsubpoenaed as a witness and interrogated as to certain matters. Sinclair refused to\nanswer certain questions on the grounds that the questions pertained to issues\ninvolved in pending litigation. It was argued that the Senate, by the adoption of a\njoint resolution requiring the President to place the subject of the investigation in\nlitigation, had thereby deliberately removed its jurisdiction. The Supreme Court, in\nrejecting Sinclair\xe2\x80\x99s contention, held that the investigation was in aid of legislation,\nthat under Article IV, Section 3, Congress has plenary powers to dispose of and to\nmake all needful rules and regulations concerning public lands, and that the latter\npoint was in itself a legal basis for the investigation. The Court also held that the\nJoint Resolution requiring the President to place the matter in litigation did not\ndivest the committee of authority to ask the questions in issue. It was stated at page\n295 that Congress was without authority to compel disclosures for the purpose of\naiding the prosecution of pending suits, but that its authority to require pertinent\ndisclosures in aid of its own constitutional power was not abridged because the\ninformation sought might also be of use in a lawsuit.\nIn the last session of Congress, Senator Knowland had printed in the Congressional Record an analysis of the power of Congress to require testimony, papers,\nand documents from the President and the Executive Branch. 101 Cong. Rec.\n11,458\xe2\x80\x9362 (July 26, 1955). Senator Knowland\xe2\x80\x99s analysis takes the position that\nthere is a privilege in the Executive Branch to withhold information from Congress\nwhich the President or heads of departments feel should be kept confidential in the\npublic interest. However, the analysis found an exception to the above proposition\nto exist in \xe2\x80\x9ccases where circumstances strongly point to wrongdoing of specific\ndepartment officials (as in the Teapot Dome case), or when wholesale corruption is\nuncovered.\xe2\x80\x9d Id. at 11,458. Senator Knowland discussed the Teapot Dome case. Id.\nat 11,461. After stating the limited holding of McGrain v. Daugherty, the Senator\xe2\x80\x99s analysis set forth the following letter from President Coolidge to Attorney\nGeneral Daugherty. This letter is apparently the precedent for the so-called fraud\nexception. The letter reads:\nTHE WHITE HOUSE\nWashington, March 27, 1924\nMY DEAR MR. ATTORNEY GENERAL: Since my conference\nwith you I have examined the proposed reply you suggest making to\n\n483\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nthe demand that you furnish the committee investigating the Department of Justice with files from that Department, relating to litigation\nand to the Bureau of Investigation. You represent to me and to the\ncommittee in your letter that it would not be compatible with the\npublic interest to comply with the demand, and wish to conclude\nyour letter with a statement that I approve that position. Certainly I\napprove the well-established principle that departments should not\ngive out information or documents, for such a course would be detrimental to the public interest and this principle is always peculiarly\napplicable to your Department, which has such an intimate relation\nto the administration of justice. But you will readily perceive that I\nam unable to form an independent judgment in this instance without\na long and intricate investigation of voluminous papers, which I cannot personally make, and so I should be compelled to follow the usual practice in such cases and rely upon your advice as Attorney General and head of the Department of Justice.\nBut you will see at once that the committee is investigating your\npersonal conduct, and hence you have become an interested party,\nand the committee wants these papers because of a claim that they\ndisclose your personal conduct of the Department. Assuming that the\nrequest of the committee is appropriately limited to designated files,\nstill the question will always be the same. In view of the fact that the\ninquiry related to your personal conduct, you are not in a position to\ngive to me or the committee what would be disinterested advice as to\nthe public interest. You have a personal interest in this investigation\nwhich is being made of the conduct of yourself and your office,\nwhich may be in conflict with your official interest as the Attorney\nGeneral. I am not questioning your fairness or integrity. I am merely\nreciting the fact that you are placed in two positions, one your personal interest, the other your office of Attorney General, which may\nbe in conflict. How can I satisfy a request for action in matters of this\nnature on the ground that you as Attorney General advise against it\nwhen you as the individual against whom the inquiry is directed necessarily have a personal interest in it? I do not see how you can be\nacting for your own defense in this matter and at the same time and\non the same question acting as my adviser as Attorney General.\nId.\nPresident Coolidge solved the above dilemma by asking for the resignation of\nhis Attorney General, and the investigation proceeded from there. An examination\nof the cases and historical precedents indicates that there is no fraud exception to\nthe executive privilege. Rather, there is historical precedent to the effect that the\n\n484\n\n\x0cAssertion of Executive Privilege by the Chairman of the Atomic Energy Commission\n\nPresident as Chief Executive can, in his sole discretion, direct that the executive\nprivilege be waived in a case where he believes it is in the public interest. If the\ncharges of fraud are directed against the President himself, the only way that\nCongress can constitutionally proceed is by way of impeachment. Even in this\nlatter case there is no precedent to the effect that the executive privilege cannot\nvalidly be invoked.\nIV.\nIt is therefore concluded that the questions of the Senate Subcommittee put to\nChairman Strauss on December 5, 1955, which Chairman Strauss refused to\nanswer, come within the scope of the executive privilege to withhold information\nfrom Congress which the President deems confidential in the public interest; and\nthat the President\xe2\x80\x99s letter of May 17, 1954, to the Secretary of Defense is a determination, applicable in this particular case, that the questions asked by the Senate\nSubcommittee are deemed by the President to be confidential. It is further\nconcluded that the so-called fraud exception to which the Senate Subcommittee\nreferred does not exist. The precedent for the so-called exception really evidences\nthe unlimited discretion of the President to determine whether the public interest\nrequires that the executive privilege be invoked or waived in a particular case.\nJ. DWIGHT EVANS\nAttorney-Adviser\nOffice of Legal Counsel\n\n485\n\n\x0c'


b"Reassignment of Assistant Secretary of Labor Without Senate\nReconfirmation\nW here the Secretary o f Labor exercises statutory power to reassign the duties of a lawfully confirmed\nAssistant Secretary o f Labor whose duties are not otherwise assigned by statute, reconfirmation\no f the Assistant Secretary is not legally required.\n\nNovember 2, 1995\nM e m o r a n d u m O p in io n\n\nfor t h e\n\nC o un sel\n\nto th e\n\nP r e s id e n t\n\nOver the past few days, this Office has considered whether Senate reconfirmation of Anne H. Lewis as an Assistant Secretary of Labor is legally required.\nThe answer to this question is clear: the Senate, having already confirmed Ms.\nLewis as an Assistant Secretary of Labor, need not do so again.\nUnder 29 U.S.C. \xc2\xa7553,\n[t]here are established in the Department of Labor nine offices of\nAssistant Secretary of Labor, which shall be filled by appointment\nby the President, by and with the advice and consent of the Senate.\nEach of the Assistant Secretaries of Labor shall perform such duties\nas may be prescribed by the Secretary of Labor or required by law.\nCongress has provided that \xe2\x80\x9c [o]ne of such Assistant Secretaries shall be an Assist\xc2\xad\nant Secretary of Labor for Occupational Safety and Health,\xe2\x80\x9d id.', another, the\n\xe2\x80\x9c Assistant Secretary of Labor for Mine Safety and Health,\xe2\x80\x9d id. \xc2\xa7557a; and a\nthird, the \xe2\x80\x9c Assistant Secretary of Labor for Veterans\xe2\x80\x99 Employment and Training,\xe2\x80\x9d\nid. \xc2\xa7553 note. The allocation of duties to the other Assistant Secretaries is not\nset by statute.\nOn July 29, 1993, in accordance with the statute, the President nominated Anne\nH. Lewis to be \xe2\x80\x9c an Assistant Secretary of Labor.\xe2\x80\x9d 139 Cong. Rec. 17,906 (1993).\nAlthough some of the references in the Congressional Record to the committee\nhearings on the nomination characterize the position for which she was nominated\nas \xe2\x80\x9c Assistant Secretary [of Labor] for Public Affairs,\xe2\x80\x9d see id. at D563, the Senate\n(in accordance with the statute) confirmed her on October 7, 1993, simply as\nan \xe2\x80\x9c Assistant Secretary of Labor.\xe2\x80\x9d Id. at 23,995.\nSecretary Reich then exercised his statutory power to assign duties to Ms.\nLewis. He first allocated duties to her as Assistant Secretary for Public Affairs.\nLater, he reassigned her to carry out duties as Assistant Secretary for Policy. When\nhe made this reassignment, Ms. Lewis\xe2\x80\x99s name was not sent to the Senate for\nreconfirmation.\n274\n\n\x0cReassignment o f Assistant Secretary o f Labor Without Senate Reconfirmation\n\nThe Secretary acted on the advice of our Office which relied upon a 1976\nopinion written by then Assistant Attorney General Antonin Scalia. Memorandum\nfor the Honorable Bobbie Greene Kilberg, Associate Counsel to the President,\nfrom Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re:\nReassignment o f Department Heads Without Reconfirmation by the Senate (Apr.\n2, 1976). Assistant Attorney General Scalia concluded that although the statute\nrequired Senate confirmation before the President could appoint an Assistant Sec\xc2\xad\nretary of Labor, it did not require the Senate to approve the assignment or\nreassignment of duties to Assistant Secretaries, once confirmed. Indeed, the statute\ndid not mandate that the Secretary assign any continuing duties at all to any of\nthe \xe2\x80\x9c generic\xe2\x80\x9d Assistant Secretaries. Each could have served as a general aide\nto the Secretary.\nThe Chair of the Committee on Labor and Human Resources, however, has\nobjected to Secretary Reich\xe2\x80\x99s actions and believes that the President is required\nto submit Ms. Lewis for reconfirmation. On October 10, 1995, the Congressional\nResearch Service issued a legal opinion arguing that the Scalia memorandum is\nwrong and that the duties of Assistant Secretaries of Labor may not be reassigned\nwithout a renewed confirmation by the Senate. Memorandum for the Honorable\nNancy L. Kassebaum, Chair, Senate Labor and Human Resources Committee,\nfrom Morton Rosenberg, Specialist in American Public Law, Congressional\nResearch Service, Re: Requirement o f Reconfirmation by the Senate When the\nExecutive Seeks to Shift an Officer from One Advice and Consent Position to\nAnother (Oct. 10, 1995) (\xe2\x80\x9c CRS Opinion\xe2\x80\x9d ).\n\nIn my view, Assistant Attorney General Scalia\xe2\x80\x99s opinion was correct and has\nbeen powerfully reinforced by a later decision of the Supreme Court. The relevant\nstatutes, on their face, divide Assistant Secretaries into two classes: those whose\nduties are assigned by statute and those whose duties are allocated to them by\nthe Secretary. When Congress has desired to attach specific duties to an office\nof Assistant Secretary, it has done so. Congress has not specified any duties for\nthe Assistant Secretary position to which the President appointed Ms. Lewis. The\nCRS Opinion, which contests Assistant Attorney General Scalia\xe2\x80\x99s view, purport\xc2\xad\nedly rests on \xe2\x80\x9c Congress\xe2\x80\x99 prerogative over the administrative bureaucracy.\xe2\x80\x9d CRS\nOpinion at 3. According to CRS, Congress may provide for execution of the laws\nby officers of the United States, and \xe2\x80\x9c under the Necessary and Proper Clause,\nit has authority to create offices, determine their location in the governmental\nstructure, the qualifications of officeholders, prescribe their appointments, and gen\xc2\xad\nerally promulgate the standards for the conduct of the offices.\xe2\x80\x9d Id. at 4 (citations\nomitted). The CRS Opinion, however, ignores the implications of this (valid)\npremise. It is Congress, not the Senate, that may define offices under the Nec\xc2\xad\nessary and Proper Clause. The position of Assistant Secretary is statutory and\nis not a constitutional office. As the Supreme Court held in INS v. Chadha, 462\nU.S. 919, 951 (1983), \xe2\x80\x9c the legislative power of the Federal Government [must]\n275\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nbe exercised in accord with a single, finely wrought and exhaustively considered,\nprocedure.\xe2\x80\x9d This procedure entails passage by both houses of Congress and\npresentment to the President. Id. To place specific limitations on the duties per\xc2\xad\nformed by Assistant Secretaries of Labor, therefore, Congress would have to\namend the current statute, using the constitutionally required procedure. Even if\nthe President had nominated Ms. Lewis to be \xe2\x80\x9c Assistant Secretary for Public\nAffairs\xe2\x80\x9d (as he did not), or even if the Senate had voted to confirm Ms. Lewis\nas \xe2\x80\x9c Assistant Secretary for Public Affairs\xe2\x80\x9d (as it did not), Chadha would refute\nthe argument that the Secretary may not reassign Ms. Lewis to new duties without\nreconfirmation.\nIn standing upon the principle that the Senate may not aggrandize itself by effec\xc2\xad\ntively redefining offices established by statute, we would be well supported by\npractice. Congress has provided, for example, that there are to be ten Senateconfirmed Assistant Attorneys General, \xe2\x80\x9c who shall assist the Attorney General\nin the performance of Pier] duties.\xe2\x80\x9d 28 U.S.C. \xc2\xa7506. We have identified ten\ninstances, the earliest in 1936 and the latest in 1988, in which the Attorney Gen\xc2\xad\neral reassigned an Assistant Attorney General from one division to another without\nreconfirmation. In our Department\xe2\x80\x99s history, there is, as far as we know, no con\xc2\xad\ntrary case. To be sure, the first head of the Civil Rights Division, W. Wilson\nWhite, was nominated for Senate confirmation in 1958, even though he had been\nserving as an Assistant Attorney General in charge of the Office of Legal Counsel.\nHowever, Mr. White first resigned his position as Assistant Attorney General,\nreceived a recess appointment, and then went through the process for confirmation.\nThus, when the Senate confirmed Mr. White the second time, he did not hold\na Senate confirmed position as Assistant Attorney General.\nIt is more difficult to ascertain the practice at other agencies. Our files suggest\nthat, even apart from actions by the present Administration, reassignments without\nnew confirmations were made in 1974 (Department of Agriculture), 1976 (Depart\xc2\xad\nment of Labor), and 1984 (Department of Energy). On the other hand, the Execu\xc2\xad\ntive Clerk has identified four instances where the Senate was asked to reconfirm\nan official who was being reassigned. In two of these cases, an Assistant Adminis\xc2\xad\ntrator of the Agency for International Development was transferred to a regional\ndesk. Because the statute fixing the pay of Assistant Administrators distinguishes\nbetween \xe2\x80\x9c Assistant Administrators\xe2\x80\x9d and \xe2\x80\x9c Regional Assistant Administrators,\xe2\x80\x9d 5\nU.S.C. \xc2\xa75315, the appointees apparently were moving to offices with different\nstatutory definitions, and the reconfirmations thus appear proper. The other two\ncases seem to have involved reassignments where reconfirmation was unnecessary\nand perhaps inappropriate. But these two cases can hardly outweigh the decided\npractice to the contrary.\nMs. Lewis is lawfully serving as a Senate confirmed Assistant Secretary of\nLabor, performing duties lawfully assigned to her by the Secretary under 29\n276\n\n\x0cReassignment o f Assistant Secretary o f Labor Without Senate Reconfirmation\n\nU.S.C. \xc2\xa7553. Thus, no further action by the Senate is required for her to continue\nto serve as an Assistant Secretary of Labor.\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n277\n\n\x0c"


b'Appointment of a Senate-Confirmed Nominee\nT he P resid en t is not legally obligated to appoint a nom inee to w hom the Senate has given its advice\nand consent. U ntil the President takes th e final public act necessary to com plete the appointm ent,\nw hich in the case o f a S enate-confirm ed official is custom arily evidenced by the P resident\xe2\x80\x99s signing\nth e com m issio n , the P resident retains fu ll discretion not to appoint the nom inee.\nO c to b e r 12, 1 9 9 9\n\nM e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t\n\nYou have asked whether the President has a legal duty to appoint and commis\xc2\xad\nsion a nominee once the Senate has given its advice and consent to the nomination.\nIt has long been established that the President, until he takes the final public act\nnecessary to complete the appointment, retains the full discretion not to appoint\na nominee. The appointment is the voluntary act of the President, and the consent\nof the Senate does not place him under any legal obligation. Accordingly, until\nthe President makes the appointment, which in the case of a Senate-confirmed\nofficial is customarily evidenced by the President\xe2\x80\x99s signing a commission, the\nConstitution commits to the President\xe2\x80\x99s sole discretion whether to appoint the\nnominee.\nArticle II of the Constitution provides that, except as to certain inferior officers,\nthe President \xe2\x80\x9c shall nominate, and by and with the Advice and Consent of the\nSenate, shall appoint . . . all . . . Officers of the United States\xe2\x80\x9d and that the\nPresident \xe2\x80\x9c shall Commission all the Officers of the United States.\xe2\x80\x9d U.S. Const,\nart. II, \xc2\xa7 2, cl. 2; \xc2\xa7 3. The Constitution thus calls for three steps before a presi\xc2\xad\ndential appointment is complete: first, the President\xe2\x80\x99s submission of a nomination\nto the Senate; second, the Senate\xe2\x80\x99s advice and consent; third, the President\xe2\x80\x99s\nappointment of the officer, evidenced by the signing of the commission. All three\nof these steps are discretionary. Even after the Senate\xe2\x80\x99s advice and consent, up\nto the moment that the President signs the commission, he can grant or withhold\nan appointment in accordance with his will and judgment.\nChief Justice M arshall\xe2\x80\x99s opinion for the Supreme Court in Marbury v. Madison,\n5 U.S. (1 Cranch) 137, 155-58 (1803), examined in detail the President\xe2\x80\x99s discre\xc2\xad\ntion over appointments. See a lso id. at 162, 167. The Court stated that the Presi\xc2\xad\ndent\xe2\x80\x99s appointment of an officer \xe2\x80\x9c is . . . a voluntary act, though it can only be\nperformed by and with the advice and consent of the senate.\xe2\x80\x9d Id. at 155. As\nJustice Story explained in his Commentaries on the Constitution,\nUpon the fullest deliberation, the court were of opinion that, when\na commission has been signed by the President, the appointment\nis final and complete. The officer appointed has then conferred on\nhim legal rights, which cannot be resumed. Until that, the discretion\n232\n\n\x0cAppointment o f a Senate-Confirmed Nominee\n\no f the President may be exercised by him as to the appointment;\n\nbut, from that moment, it is irrevocable.\n2 Joseph Story, Commentaries on the Constitution o f the United States \xc2\xa7 1546,\nat 371 (Melville M. Bigelow ed., 5th ed. 1994) (emphasis added). See also 3\nWestel Woodbury Willoughby, The Constitutional Law o f the United States \xc2\xa7987,\nat 1506 (2d ed. 1929).\nThe courts have continued to apply the principle set out in M arbury v. Madison.\nIn D \xe2\x80\x99Arco v. United States, 441 F.2d 1173 (Ct. Cl. 1971), the court held that\na military officer had not been promoted even though the Senate had confirmed\nhis nomination, because no commission had been signed: \xe2\x80\x9c Chief Justice Mar\xc2\xad\nshall\xe2\x80\x99s reasoning teaches that, even if the office had been for a term of years,\nlike Marbury\xe2\x80\x99s, the executive could still refuse to complete the appointment, after\nSenate confirmation, by failing to prepare or sign the commission.\xe2\x80\x9d Id. at 1175.\nSee also National Treasury Employees Union v. Reagan, 663 F.2d 239, 242 (D.C.\nCir. 1981) (\xe2\x80\x9c For more than one hundred and seventy-five years, the rule as to\nwhen an appointment takes place has been clear: \xe2\x80\x98when the last act to be done\nby the [appointing authority] was performed.\xe2\x80\x99 \xe2\x80\x9d (quoting Marbury v. Madison,\n5 U.S. (1 Cranch) at 157)).\nThis principle has been repeatedly recognized in the authoritative legal judg\xc2\xad\nments of the executive branch. In 1843, for example, the Attorney General wrote\nthat the President\xe2\x80\x99s nomination and the Senate\xe2\x80\x99s advice and consent \xe2\x80\x9c serve but\nto indicate the purpose of the President to appoint, and the consent o f the Senate\nthat it should be effectuated; but they do not divest the executive authority of\nthe discretion to withhold the actual appointment from the nominee.\xe2\x80\x9d Appoint\xc2\xad\nments to Office \xe2\x80\x94 Case o f Lieutenant Coxe, 4 Op. Att\xe2\x80\x99y Gen. 217, 219 (1843).\nIn 1931, the Attorney General stated that the Appointments Clause\ncontemplates three steps. There is, first, the nomination, which is\na mere proposal. Next comes action by the Senate consenting or\nrefusing to consent to the appointment. Finally, if the Senate con\xc2\xad\nsents to the appointment there follows the executive act of appoint\xc2\xad\nment. It has long been recognized that the nomination and the\nappointment are different acts, and that the appointment is not\neffected by the Senate\xe2\x80\x99s so-called confirmation of the nomination.\nAfter the Senate has consented to the appointment, the nominee\nis not entitled to the office until the consent is followed by the\nexecutive appointment. After a nomination is sent to the Senate and\nhas received the approval of that body, the President may, having\nchanged his mind, decline to make the appointment.\n233\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nLegality o f Appointm ent o f Certain M embers o f the Federal Pow er Commission,\n36 Op. Att\xe2\x80\x99y Gen. 382, 384-85 (1931); accord Nominations fo r Prospective\nVacancies on the Supreme Court, 10 Op. O.L.C. 108, 109 (1986) ( \xe2\x80\x9c Confirmation\n\ndoes not confer any rights on the nominee; the President remains free to decide\nthat he does not want to make the appointment, which is not legally completed\nuntil the execution of the commission.\xe2\x80\x9d ). See also, e.g., President\xe2\x80\x99s Pow er to\nFill Vacancies in Recess o f the Senate, 12 Op. Att\xe2\x80\x99y Gen. 32, 42 (1866); Case\no f Virgil S. Eggleston, 13 Op. Att\xe2\x80\x99y Gen. 44, 45 (1869); Relief o f Fitz John Porter,\n18 Op. A tt\xe2\x80\x99y Gen. 18, 25-26 (1884).1\nThe Comptroller General, an officer in the legislative branch, likewise has\nacknowledged that the President m ay withhold an appointment after confirmation\nby the Senate. Appointments and Promotions \xe2\x80\x94 Presidential Appointees and Per\nDiem Experts \xe2\x80\x94 Social Security B oard Appropriation Limitations, 17 Comp. Gen.\n249, 252 (1937) ( \xe2\x80\x9c The nomination is not an appointment; neither is the confirma\xc2\xad\ntion. The nomination and confirmation serve but to indicate the purpose of the\nPresident to appoint and the consent of the Senate that the appointment may be\nmade thereafter. They do not divest the executive authority of the discretion to\nwithhold the actual appointment. That discretion may be exercised at any time\nbefore the commission is actually signed.\xe2\x80\x9d (internal quotation and citation\nomitted)).\nWe therefore conclude that even after the Senate gives its advice and consent,\nthe President lawfully may decline to appoint a nominee.\nDANIEL L. KOFFSKY\nActing Deputy Assistant Attorney General\nOffice o f Legal Counsel\n\n1 In 1895, the Acting A ttorney General concluded that a Senator\xe2\x80\x99s appointment to an executive office was barred\nby the clause o f the Constitution forbidding appointment o f a member of Congress to a position for which the\nsalary was increased during that member\xe2\x80\x99s elected term According to the opinion, the Senator was appointed on\nFebruary 23, 1895, the date he was nominated and confirmed, rather than March 5, 1895, the date his commission\nwas signed. M em ber o f Congress\xe2\x80\x94 Appointment to Office, 21 Op. Att\xe2\x80\x99y Gen 211 (1895) The opinion arguably\ncould be read to equate the Senate\xe2\x80\x99s advice and consent with the appointment. However, because the commission\nhad been backdated to February 23, and the appointee had been sworn in on March 4, the last act necessary to\nmake the appointment, under the peculiar facts o f the case, could be taken to have occurred before the signing\nof the commission. See id. at 212, 214; s e e also Marbury, 5 U S (1 Cranch) at 156 ( \xe2\x80\x9c if an appointment was\nto be evidenced by any public act other than the commission, the performance of such public act would create\nthe officer\xe2\x80\x9d ).\n\n234\n\n\x0c'