                                                                   January 26, 1977

78-71 MEMORANDUM OPINION FOR THE DEPUTY
      COUNSEL TO THE PRESIDENT
      Presidential Transition Act (3 U.S.C. § 102 note)—
      Provision of Military Aircraft and Hospital
      Corpsman to a Former President (31 U.S.C. § 638)

    You have orally asked for the opinion of this Office whether and under what
 circumstances the President might be able to make available to former President
 Ford military aircraft for his transportation and a medical corpsman to
 accompany him on such flights. Our response may be summarized as follows:
       (1) The President may direct aircraft assigned to him to transport Mr.
 Ford on official transition business and may detail a medical corpsman to
 accompany him on such flights.
      (2) The President may, on a one-time basis, direct an aircraft assigned to
him to carry Mr. Ford on personal business or pleasure but may not detail a
 medical corpsman to that flight.
      (3) With respect to the flights referred to in (2) the Department of Defense
(DOD) may, at the request of the Director of the Secret Service, detail a
military aircraft and a medical corpsman should the Director conclude that
these are consistent with the statutory authority of the Secret Service to protect
the former President.
   The question you raise presents itself in at least two different contexts. The
first context would involve travel by Mr. Ford where such travel can be shown
to be related to the transition itself. In our view, such official travel would be at
no expense to Mr. Ford. The Presidential Transition Act of 1963, Pub. L. No.
88-227, 78 Stat. 153, as amended, 3 U.S.C. § 102 note, provides that, for 6
months from the expiration of a President’s term of office necessary services
may be provided by the Administrator of General Services under § 4 of the Act
to the former President, as provided by § 2, “ to promote the orderly transfer of
the executive power . . . .” Certainly travel of that nature would fall within the
scope of these provisions. We are not aware that the Administrator has any
authority to utilize a military aircraft for that purpose. But it is our view that the
President can order such official travel by Mr. Ford to be accomplished in
military aircraft. We have taken the position in the past that “ in the absence of
an expression of a contrary intent by Congress . . . the President must be
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 deemed authorized by the Constitution to utilize the troops and equipment
 under his command for reasonable purposes,even if they are not purely military
 in nature.” Memorandum, April 14, 1975, at 2-3 (hereafter April 14 Memo­
 randum). Thus, aircraft placed directly at the President’s disposal, such as the
 aircraft of the military support group detailed to serve the President, can
 be used to transport Mr. Ford on transition business, without expense to
 Mr. Ford.
    The second context in which your question might arise would involve
 situations in which former President Ford’s movement is of a personal, rather
 than official, nature. In our view, as asserted in the April 14 Memorandum,
 ibid., the President may direct aircraft placed at his command to be used for
 other than “ official purposes.” This view is based on the authority contained in
 31 U.S.C. § 638a(c)(2). That paragraph, which provides generally that
 Government aircraft may not be used other than “ exclusively for official
 purposes,” specifically provides that “ the limitations of this paragraph shall
 not apply to any . . . aircraft for official use of the President . . . .” Thus, an
 inference may be drawn that the President is empowered to devote aircraft
 assigned to him for other than “ official purposes.”
    However, as the April 14 Memorandum also points out, under Department of
 Defense regulations, non-Government traffic is generally carried on a reim­
 bursable basis by the person carried. Although certain exceptions to this general
 requirement are carved out, transport of former Presidents on personal business
 would not appear to fall within any of these exceptions. We believe that
 detailing a military aircraft on a regular—as opposed to a one-time—basis for
 non-Govemment purposes would both stretch the authority of the President as
 Commander-in-Chief and would not be justified by the inference drawn from
 31 U.S.C. § 638a(c)(2). Furthermore, such travel on a nonreimbursable basis
could create a tension between the President’s authority and DOD regulations.
Those regulations, while they may not technically foreclose such action, might
create the appearance of impropriety.
    It appears to us that the detailing of a medical corpsman stands upon the same
footing. During the transition period, under his Commander-in-Chief powers,
the detailing of a corpsman by the President to the former President can be
accomplished if such detailing constitutes the provision of “ necessary serv­
 ices” to further the transition under § 4 of the Act. For other purposes there
would appear to be no authority for the detailing of a medical corpsman by the
President. Unlike the President’s use of military aircraft assigned to him, we
are unaware of any statutory provision like 31 U.S.C. § 638a(c)(2) that would
permit, by inference, the use of a medical corpsman to accompany the former
President.
   One possibility that we have had too little time to explore fully is the extent
to which military aircraft and a medical corpsman might be detailed for Mr.
Ford’s use on personal business in connection with the Secret Service
protection afforded to him. The protection of the Secret Service is extended to a
former President during his lifetime, 18 U.S.C. § 3056. Section 2 of Pub. L.
No. 90-331, 82 Stat. 170, as amended, 18 U.S.C. § 3056 note, provides that all
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Federal departments must assist the Director of the Secret Service in carrying
out those protective functions. It would therefore seem that a determination by
the Director of the Secret Service that military aircraft should be used to
transport former President Ford in order to facilitate Secret Service protection
could furnish an adequate basis for the detail of available military aircraft to fly
the former President. It is our understanding that the Secret Service has
determined in the past that in some circumstances the use of military aircraft
actually may reduce the overall cost of Secret Service protection as compared
with providing the protection that would be required aboard a commercial
aircraft. It may be that the Secret Service could apply the same reasoning with
respect to the detailing of a medical corpsman.
                                                   L eon U lman
                                       Deputy Assistant Attorney General
                                                     Office of Legal Counsel




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