                 Payment of Expenses Associated with TYavel
                    by the President and Vice President

B in d s appropriated for the official functioning of the offices of the President and the Vice President
    m ay b e used fo r travel expenses only if the travel is reasonably related to an official purpose; and,
    official activities m ay be funded on ly from funds appropriated for such purposes. Thus appropri­
    ated funds should not be used to pay fo r political travel and political funds should not be used to pay
    for official travel.

W h eth er an ev en t is official o r political for purposes o f paying its expenses m ust be determ ined on a
   case-by-case basis, and both the nature o f the event and the nature o f the individual involved should
   be considered.

W here both official and political activities occur on the sam e trip, the expenses of individuals on the
   trip f o r both political an d official reasons can be apportioned between the governm ent and a
   political co m m ittee on a basis which reflects the tim e spent on the respective activities. D uring the
   p eriod of a presidential election cam paign. Federal E lection Com m ission regulations m ay require
   a differen t rule o f allocation.


                                                                                       March 24, 1982

 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

   This memorandum responds to your request for our advice about the payment
of expenses associated with travel by the President or Vice President. We are to
assume that travel by the President or Vice President may often include both
official events, undertaken as part of the President’s or Vice President’s official
roles as governmental leaders, and purely political events, undertaken for par­
tisan purposes in order to advance the interests of the President’s and Vice
President’s political party. This mixed character of much presidential and vice
presidential travel follows naturally from their dual roles as governmental of­
ficials and leaders of their party. You have asked us to articulate the legal
principles governing the allocation and payment of costs associated with such
travel.
   Several caveats must be noted at the outset. First, our opinion should not be
read as a declaration that the generally applicable principles will necessarily lead
to an inflexible result in a particular case. In fact, the principles are of such
generality that they often will generate few determinate results. They thus must
be viewed as general guides to decisionmaking. Second, the principles should be
applied to a particular trip by the officials most familiar with the facts of the trip.
Each case may present unique circumstances that will need to be taken into

                                                    214
account in determining, for instance, whether an event is “ official” or “ politi­
cal” in character. As we will indicate, there is considerable room in this context
for the careful use of informed discretion. Third, this opinion focuses on broadly
applicable legal principles, not on the specific rules adopted by the Federal
Election Commission forelection activity. See 11 C.F.R. Chapter 1 (1981). If, in
light of this opinion, particular questions arise, we will, of course, be glad to
address them.
   Furthermore, the principles discussed in this opinion may be fully understood
only with an appreciation of the unique context presented by the peculiar
functions and responsibilities of the President and Vice President in our system of
government. They are the senior officials of the Executive Branch of government.
Their official roles are necessarily political in the broad sense that they must
formulate, explain, advocate, and defend policies. To the extent that the President
and Vice President generate support for their policies and programs, they are also
executing and fulfilling their official responsibilities. Even the most clearly
partisan activity is not without some impact on the official activities of the
President and Vice President.
   By the same token, official success or failure by the President and Vice
President has an inevitable and unavoidable impact on the standing of their
political party, members of their party, and their party’s candidates for public
office. Thus, it is simply not possible to divide many of the actions of the
President and Vice President into utterly official or purely political categories. To
attempt to do so in most cases would ignore the nature of our political system and
the structure of our government. Accordingly, efforts to establish such divisions
must be approached with common sense and a good faith effort to apply the spirit
of the principles we discuss in this memorandum, and they must be judged with
considerable deference to the decisions of the persons directly involved in
making the determinations.
   With this background, our discussion will focus on three major questions.
First, what are the basic legal principles to be applied, putting aside specialized
restrictions formulated by the Federal Election Commission with regard to
election activities? Second, how does one determine whether an event giving rise
to an expense is “ official” or “ non-official” in character? Third, assuming that a
trip involves events that are both official and non-official (or political) in
character, may certain of the expenses for such a mixed trip be apportioned
between the government, on the one hand, and a political committee, on the other
hand? In the fourth section, we will discuss other considerations that bear on the
issues discussed herein.

                               I. TVo Basic Norms

  When considering payment of expenses associated with presidential and vice
presidential travel, two major principles governing the use of appropriated funds
must be bome in mind. First, appropriated funds may be spent only for the
purposes for which they have been appropriated. 31 U.S.C. § 628; 52 Comp.

                                        215
 Gen. 504 (1973); 50 Comp. Gen. 534 (1971). Thus, funds appropriated for the
 official functioning of the offices of the President and the Vice President may be
 used for travel expenses only if the travel is reasonably related to an official
 purpose. If, however, there is no reasonable connection between the expense
 incurred and the official purposes to be served by an appropriation— as, generally
 speaking, there would not be when an expense is incurred purely for partisan
political purposes— official funds may not be used to pay the expense.
    The second basic principle is that, in general, official activities should be paid
for only from funds appropriated for such purposes, unless Congress has author­
ized the support of such activities by other means. Stated another way, although
appropriated funds should not be used for non-official purposes, it is equally true
that outside sources of funds may not be used to pay for official activities. This
latter principle, which prevents the unauthorized augmentation of appropriations,
has been recognized by the Comptroller General on numerous occasions.1 A
problem concerning an unauthorized augmentation of an appropriation does not
arise when a trip is purely non-official in character and non-official funds are used
to pay for it. Rather, the issue arises only where an official activity is supported by
non-appropriated funds and where there is no authority for that to occur.
   In short, appropriated funds should not be used to pay for political events, and
absent authority to the contrary, political funds should not be used to pay for
official events. The difficulties of applying these principles arise because both
types of activities may occur on the same trip and because it is exceedingly
difficult in many instances to determine what is official and what is political.

   II. What Tests Should Be Used for Determining Whether an Expense
             Should Be Considered “ Political” or “ Official?”

   Because officials will wish to ensure that appropriated funds are used only to
pay for expenses associated with official events and are not used to pay for
political expenses, it will be necessary to determine on a case-by-case basis
whether an expense is official or political in character. As discussed generally
above, there is unfortunately no single litmus test for making such judgments.
Indeed, many events could be characterized properly as either political or official
or both. Therefore, in making this determination the persons most familiar with
the facts of a particular trip will have to assess all of the circumstances involved
and apply a large measure of common sense. There are, however, two major
variables concerning the source of the expense to be borne in mind: the nature of
the event involved, and the nature of the individual involved. Either, or both, of
these indicia may be useful in a particular case in determining whether a
particular expense should be considered official or political.
   With respect to the nature of the event giving rise to an expense, an earlier
opinion of this Office, entitled “ Political Trips” and transmitted to the Counsel to
the President on March 15, 1977, stated the following guidelines:

   ' S e e .e /> .2 3 C om p. G en 6 9 4(1944), 4 6 Com p. G en . 6 8 9 (1 9 6 7 ) Scralso 9 C om p D ec. 174 (1902), 17Com p.
D ec. 712 (1911)


                                                            216
            As a general rule, Presidential and Vice Presidential travel should
            be considered ‘political’ if its primary purpose involves their
            positions as leaders of their political party. Appearing at party
            functions, fundraising, and campaigning for specific candidates
            are the principal examples of travel which should be considered
            political. On the other hand, travel for inspections, meetings,
            non-partisan addresses, and the like ordinarily should not be
            considered ‘political’ travel even though they [sic] may have
            partisan consequences or concern questions on which opinion is
            politically divided. The President cannot perform his official
            duties effectively without the understanding, confidence, and
            support of the public. Travel and appearances by the President and
            Vice President to present, explain, and secure public support for
            the Administration’s measures are therefore an inherent part of the
            President’s and Vice President’s official duties (pages 11-12).
We concur with the foregoing rules of thumb, which are based largely on a
common sense understanding of the nature of political and official activities.2
   While we would hope that the foregoing generalities may be useful guides for
the future, they should not be viewed as inflexible. There clearly is much room
for discretion in determining whether an event giving rise to an expense is
political or official. At bottom, the question is a factual one that can only be
answered by those most familiar with the particular facts of a given situation.
Nonetheless, in general, if the purpose of an event on a trip is to promote the
partisan aims of the President’s or Vice President’s party or candidates of that
party, then expenses incurred in performing the event would generally be
political in character. Should particular questions arise about specific events, we
would be glad to provide more concrete advice concerning them.
   The second variable that may, in some circumstances, determine the character
of a particular expense incurred on a trip is the nature of the individual whose
activity generates the expense. There are some individuals who, in particular
situations, are on a trip for inherently official or political purposes. Expenses
incurred by them should generally be viewed as either official or political
depending on their particular role. For instance, there are some persons whose
official duties require them to be with the President, whether or not the President
himself is on official business.3 This group includes the President’s doctor, his
military aide, and the Secret Service agents responsible for his protection.4 A
similar group would exist for the Vice President. Expenses incurred during travel
with the President or Vice President by this group of individuals should be

   2 A lthough we generally agree w ith this earlier opinion of this O ffice, we w ould note that m uch o f its advice is o f a
pru d en tial, n o ts tn c tly legal, ch aracter In the present m em orandum , w e do not undertake to specify rules that are not
legally m andated. M oreover, the earlier opinion itself takes pains to stress the flexibility that exists in d eterm ining
w hether, in a p articu lar case, travel by the President is official o r political (see page 7).
   3 T his point is the sam e as stated in the M arch 15, 1977, opinion of this O ffice, entitled “ Political Trips” (p ag es 9,
15-16).
   4 T h is list is not intended to be exhaustive T he President may, in his discretio n , d eterm ine that o th ers are
necessary m em bers o f his official party w henever he travels.


                                                             217
considered official regardless of the character of the event that may be involved in
a given trip.
   Similarly, on an otherwise entirely official trip, an individual may accompany
the group for purely political reasons. As a rule, any expenses specifically
incurred by such individuals should be considered political expenses, regardless
of the events involved in the trip.
   In short, as we noted at the outset of this section, there is no single test for
determining whether an expense is political or official in character. Viewed
generally, expenses of individuals whose official duties require them to travel
with the President or Vice President should normally be considered official.
Expenses of individuals who are on a trip for purely political reasons should
normally be considered political. Expenses associated with individuals who are
not necessarily serving in either a wholly official or wholly political capacity—
such as the President or Vice President or other individuals in the White House
who may, consistent with their official duties, perform political functions—
should normally be judged to be official or political depending on the character of
the event giving rise to the expense.

  III. On a Mixed TYip Including Both Official and Political Activities,
 Can Certain Expenses Be Apportioned Between the Government and a
                        Political Committee?

   Based on what we have said thus far, the following conclusions may be stated.
First, if all events during a trip are political in character, the only official expenses
on the trip would be those associated specifically with the group of individuals
whose official duties require them to accompany the President and Vice Presi­
dent. Second, if all events on a trip are official in character, the only political
expenses would be those associated specifically with individuals who accompany
the President and Vice President on the trip for purely political reasons. This
means that on a trip that is entirely official, any expenses associated with the
President or Vice President or others who are not necessarily on the trip for purely
official or purely political reasons should be considered official. Conversely, on a
trip that is entirely political, expenses associated with persons who are not
necessarily on the trip for wholly official or wholly political reasons should be
considered political.
   A question remains, however, concerning expenses associated with individu­
als whose purpose for being on a trip is not necessarily only political or only
official, when the trip itself is for both official and political purposes. Specifi­
cally, on a mixed trip involving a substantial official element and a substantial
political element, can the expenses associated with the President or Vice Presi­
dent or others who are on the trip for both reasons be apportioned between the
government and a political committee? There are several possible views on this
question.
   It might be argued, for example, that the performance of an official event
during a trip could not have been accomplished without incurring certain expend­

                                          218
itures and that, therefore, the entire cost of the trip should be treated as official
and should be paid out of appropriated funds, with the sole exception being
incremental expenses associated specifically with a political activity (e.g., a
hotel bill for an extra night’s lodging necessitated entirely by a political event on
the following day). This approach is grounded on the assumption that to permit
any other apportionment of the cost of a trip to a political committee would allow
the official budget to benefit from an unauthorized augmentation of appropria­
tions. Since the expenses incurred were necessary to accomplish an official
purpose, on this view they must be paid for in full with appropriated funds.
   The opposite theory could also be advanced. That is, if there is any political
activity on a trip, a political committee could theoretically be required to pay for
the trip’s entire cost (except for incremental expenses specifically attributable to
an official event). This theory proceeds on the assumption that any other approach
would allow the President’s or Vice President’s political activities to be sub­
sidized by their official appropriations.
   A third approach, which in effect combines the first two, is suggested by a
prior opinion of this Office, transmitted to the Counsel to the President on
September 17, 1980, and entitled “ Reimbursement of Travel Expenses Incurred
by Government Officials on Mixed Official and Campaign Trips.” That opinion
responded to a question about the operation of a Federal Election Commission
(FEC) rule under which a campaign committee’s share of the costs of a mixed
official-political trip is the full cost of the trip from the point of origin through
each campaign-related stop and back to the point of origin. 11 C.F.R. § 9004.F.5
After the FEC adopted this rule, the White House Counsel’s Office assumed that
the expense to the government for such a trip would be the difference between the
trip’s actual cost and the amount reimbursed by the campaign committee.
However, the Counsel’s Office was concerned that such diminishment of the
actual expense to the government could constitute an unauthorized augmentation
of appropriations. For that reason, it sought an opinion of this Office.
   The September 17, 1980, opinion concluded that, if the government were to
pay only the difference between the actual cost of a trip and the amount
reimbursed by the campaign committee under the FEC rule, there would be an
unauthorized augmentation of appropriations (assuming no authority to accept
contributions) so long as the government were allowed to “ reap the benefit” of
the enhanced payment of expenses by the campaign committee under the FEC
rule. To cure this problem, the opinion stated that an accounting system should be
devised to charge “ the full allocated travel costs to both the Campaign Commit­
tee and the government agency,” with a deposit of any excess funds in the
Treasury (page 4, emphasis added).
   While we express no view regarding the correctness of this third approach
during the period of a presidential election campaign when the Federal Election

   5 For instance, if a trip from W ashington, D C , to Chicago w ere taken for official purposes, an d then a trip from
C hicago to D enver w ere taken for cam paign purposes (with a return from D enver to W ashington, D C ) , u n d e r the
FEC rule the cam paign com m ittee w ould have to m ake reim bursem ent for the co st o f travel from Washington* D .C .,
to D enver and back to W ashington, D C.


                                                        219
Commission’s regulations would be applicable, we do not believe that the
approach correctly reflects the requirements that apply outside the campaign
period. We believe that the first two approaches are unreasonable solutions to the
problem because each tilts the scales completely toward one of the two conflicting
guiding principles and results either in an inappropriate augmentation of appro­
priated funds or the subsidization of political activity with appropriated funds.
The approach of the September 17, 1980, Office of Legal Counsel opinion
attempts to address these problems in, we believe, an unrealistic and unnecessary
way by requiring one trip to be paid for twice— both with official funds and with
political funds.
   In our view, a fourth approach which attempts in good faith to apportion the
costs of such a trip on the basis o f a reasonable division between the time spent on
political activities and the time spent on official activities is a more reasonable
and a legal resolution of the underlying problems. For example, if 50 percent of a
single day’s events are political and 50 percent are official, approximately
50 percent of the costs associated with participants whose roles are not neces­
sarily either official or political should be reimbursed by the political committee
and 50 percent should be paid from appropriated funds, unless such an appor­
tionment, under the particular circumstances, would on some basis be unreason­
able or inequitable. We believe that such an approach faithfully accommodates
both of the basic norms discussed in part I.
   Thus, when there is a mixed trip involving the President or Vice President, the
purpose of which is both substantially political and substantially official, ex­
penses should be paid in the following manner: first, expenses for individuals
who are necessarily official (Secret Service, etc.) should be paid for with
appropriated funds; second, expenses for individuals who are necessarily politi­
cal (campaign officials) should be reimbursed by a political committee; third,
incremental expenses specifically attributable to an official event should be paid
from appropriated funds, and incremental expenses specifically attributable to a
political event should be paid from political funds; and finally, expenses for
individuals whose official roles permit them to perform political activity should
be reasonably and equitably apportioned so that a share reflecting the amount of a
trip that is political in character should be paid by a political committee. If these
general guidelines are followed, then the purposes of using appropriated funds
for official purposes but not using such funds for political purposes will be
achieved.
   We must reaffirm the limited nature of our conclusion about apportionment.
As we have indicated, some categories of expenses may have to be treated as
entirely official or entirely political, and thus they would not be subject to
apportionment. Apportionment would be appropriate only with respect to ex­
penses associated with individuals whose official roles permit them to perform
political functions, and only when those individuals are on a trip that itself is not
entirely political or wholly official in nature.6 In such circumstances, to accom­

 6 We are not suggesting any specific form ula for apportionm ent, for several form ulae may b e equally reasonable
                                                    C o ntinued

                                                      220
modate both of the guiding norms noted in part I, we believe that an apportion­
ment of expenses between appropriated funds and the funds of a political
committee which reflects the relationship between official and political activities
may be made. We urge caution in applying such an approach, particularly in
retaining records to substantiate any characterization of an event or trip as
political or official that could be used in the future if, for instance, there should be
an audit by the General Accounting Office.7

                                         IV. Other Considerations

   We would add one qualification to the preceding discussion. As noted in part I,
official expenses, including expenses incurred during the President’s and the Vice
President’s travel for official purposes, may not be paid for by funds other than
those appropriated for official purposes unless there is authority to the contrary.
An acceptable source of such authority would be a congressional authorization,
in the form of a statute, for the President and the Vice President (or their
respective offices) to accept gifts to defray their official expenses. This Office has
concluded in the past that the White House Office and the Office of the Vice
President do not have statutory authority to accept contributions or gifts. This
legal premise provides the basis for the conclusion that the payment by a political
committee of official travel expenses incurred by the President or Vice President
would be an impermissible augmentation of the appropriations for these offices.
   However, in the course of our research for this opinion, we reviewed a
provision of law, 2 U.S.C. § 439a (1982), not considered in any of the prior
opinions on this subject by this Office or by the Comptroller General, which
appears to grant the President and Vice President gift authority, at least to the
extent of authorizing them to accept contributions to defray their ordinary and
necessary official expenses. Section 439a states in full:
           Amounts received by a candidate as contributions that are in
           excess of any amount necessary to defray his expenditures, and
           any other amounts contributed to an individual for the purpose cf
           supporting his or her activities as a holder cf Federal office, may
           be used by such candidate or individual, as the case may be, to
and som e may be particularly well suited to particular trips For exam ple, a form ula may be predicated o n the
num ber o f hours spent on each event, the num ber of hours on the entire trip (including travel tim e) devoted to official
o r political affairs, the num ber o f events devoted to each, o r if a trip is devoted to one type o f event in a d istant city
and another type in a nearby city on the return flight, on the relative distances travelled to each W hile som e general
g uidelines w ithin these lim its should be established for consistency in application, the overrid in g factor is the
reasonableness o f the apportionm ent in a specific situation. We w ould not exclude the possibility o f creating an
exception fo rd e m inim is involvem ent inofficial activity during a trip that w ould be treated as en tirely p o litical, and
vice versa. We note that previous A dm inistrations have m ade use of such a de m inim is exception, as indicated in the
background m aterials supplied to us by your office
    7 In tw o opinions to several S enators, dated O ctober 6 , 1980, and M arch 6 , 1981, the C o m p tro ller G eneral
d iscu ssed the apportionm ent of travel expenses for purposes of their paym ent by official and political funds un d er the
C arter A dm inistration (B—196862) A pportionm ent was not objected to by the C om ptroller G en eral. T h e C o m p ­
troller G eneral expressly noted, as we have observed here, that there are “ no guidelines o f a legally binding nature
[w hich] have been established by legislation, judicial decision, or otherw ise” (p ag e 2 o f M arch 6 , 1981, opinion).
T hese o p in io n s, coupled with prior practice by the W hite H ouse, buttress o u r conclusion that a reasonable
ap portionm ent may be made in the circum stances we have described.


                                                           221
              defray any ordinary and necessary expenses incurred in connec­
              tion with his or her duties as a holder cf Federal office, may be
              contributed to any organization described in section 170(c) of
              . . . [the Internal Revenue Code of 1954], or may be used for any
              other lawful purpose, including transfers without limitation to any
              national, State, or local committee of any political party; except
              that, with respect to any individual who is not a Senator or
              Representative in, or Delegate or Resident Commissioner to, the
              Congress on January 8, 1980, no such amounts may be converted
              by any person to any personal use, other than to defray any
              ordinary and necessary expenses incurred in connection with his
              or her duties as a holder of Federal office. (Emphasis added.)
The foregoing provision authorizes “ amounts contributed to an individual for the
purpose of supporting his or her activities as a holder of Federal office” to be used
by such individual “ to defray any ordinary and necessary expenses incurred in
connection with his or her duties. . . .” The term “ Federal office” is defined
separately as including the Offices of the President, the Vice President, and
Members of Congress. 2 U.S.C. § 431(c). Accordingly, on its face, this provi­
sion would appear to authorize use by the President and Vice President of
amounts contributed to such individuals for the purpose of supporting their
activities as President or Vice President. This would include expenses incurred in
the course of official travel.8
   We have consulted the legislative history of 2 U.S.C. § 439a, first adopted as
part of the Federal Election Campaign Act Amendments of 1974, Pub. L. No.
93—443, 88 Stat. 1289, and have found nothing that would be inconsistent with
such an interpretation. However, in the limited time available, we similarly have
found nothing to indicate that Congress specifically considered the provision’s
application to the Office of the President or Vice President. The brief floor
discussion of this provision9 and of a similar provision in a predecessor bill10
merely focused on its application to Members of Congress, who traditionally
have been permitted to accept gifts to defray the expenses of their offices.11 A
regulation promulgated by the Federal Election Commission under this provision
repeats the language of the statute. See 11 C.F.R. §§ 113.1 & 113.2. Thus, we
are aware of no indication that Congress intended it to mean anything other than
what it clearly says: that elected officials including the President and the Vice
President may accept gifts to defray expenses incurred in connection with the
performance of their duties.

    9 O f c o u rse, an y ap p licab le conflict of in terest provisions w ould have to b e borne in m ind if § 4 3 9 a were to be used
a s au thority fo r th e rece ip t o f contributions f o r the P resident's o r V ice P resid en t’s travel expenses.
    ’ S ee 120 C o n g . R ec. 3 5 1 3 9 (1974).
    10 See 119 C o n g . R ec. 2 6 6 0 6 -0 7 (1973).
    " C o n g ress am en d ed th e provision in 1980, Pub. L. N o. 9 6 -1 8 7 , §§ 105(4), 113, 93 S tat. 1 3 5 4 ,1 3 6 6 (1980),
g en e ra lly to p ro h ib it a fed eral official from co n v e rtin g co n trib u ted funds fo r h is o r h er personal use. A specific
ex em ption to th is provision also w as added f o r individuals w ho w ere S enators and R epresentatives on January 8,
1980.


                                                                 222
   Nevertheless, we would caution against complete reliance on § 439a until
further consideration has been given to the authority under that statute for
political committees to make contributions, and until the matter has been
coordinated with the Federal Election Commission. In this connection, the
Federal Election Commission has authority to render advisory opinions to federal
officeholders about “ the application of a general rule of law stated in” the Federal
Election Commission Act, of which § 439a is a part. See 2 U.S.C. § 437(b). To
our knowledge, the Commission has not been called upon to and thus has not
formally addressed the application of § 439a to gifts made to the President or the
Vice President to defray the expenses of their offices.
   Moreover, even if § 439a ultimately is to be relied upon to grant gift authority
for the President and Vice President, we would advise that guidelines be estab­
lished for the receipt of contributions under the provision. This will be necessary
since the Standards of Conduct regulations applicable to agencies in the Ex­
ecutive Office of the President, 3 C.F.R. §§ 100.735—(1)—(32), were not drafted
with the intent of regulating contributions to meet the official expenses of the
President and Vice President. Those regulations as currently drafted might not be
consistent with full implementation of § 439a if that were desired.

                                              T h eo d o r e B. O lso n
                                           Assistant Attorney General
                                            Office of Legal Counsel




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