                                                             August 31, 1978


78-96     MEMORANDUM OPINION FOR THE COUNSEL
          TO THE PRESIDENT

          General Accounting Office— Authority to Obtain
          Information in Possession of Executive Branch—
          Constitutional Law— President— Confidential
          Communications— Appointments


   1 am responding to your deputy’s memorandum o f July 27, 1978, asking for
our advice with respect to two requests for information, each dated July 27,
 1978, received from an official in the General Accounting Office (GAO). One,
addressed to your deputy, relates to appointments to the United States Metric
Board; the other, addressed to the Chairman of the Council of Economic
Advisers (CEA), relates to data and memoranda connected with last w inter’s
coal strike. We note that the requests were not signed by the Comptroller
General but by a subordinate GAO official.
   We conclude that the Com ptroller General lacks authority to obtain the
information sought.

                                      I.

   The request addressed to the Chairman of the CEA states that it is made in
connection with an evaluation o f the Adm inistration’s estimate of unemploy­
ment due to last w inter’s coal strike, which evaluation is being conducted by
the GAO at the request of the Subcommittee on Energy and Power of the House
Committee on Interstate and Foreign Commerce. The GAO asks specifically
for the following data:
    A description of the computer model developed by CEA to measure
    the unemployment impact of the coal strike including (1) assumptions
    used, (2) variables used, and (3) any limitations of the model.
    Memoranda from CEA to the White House and/or DOE concerning
    the computer model output on unemployment estimates and any
    comments, suggestions, or recommendations by CEA as to which
    estimate to use for policy decisions.



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 The request thus has three elements: A com puter model, memoranda to the
 White House, and memoranda from CEA to the Department of Energy. We
 have been informed by the CEA that the computer model was developed for the
 following purposes: Advice to the President and preparation of an affidavit by
 the Chairman of the CEA to be used in connection with the Taft-Hartley
 proceedings during last w inter’s coal strike. We also have been advised that the
 memoranda from CEA to the W hite House and from CEA to the Secretary of
 Energy also dealt with the preparation of the computer model and with advice
 to the President.
     Our analysis proceeds from what we believe are now well-accepted basic
 premises. First, the Com ptroller General is an officer of the Legislative branch.
 He has long been so viewed by Congress and by the Executive branch. See,
 e .g ., Corwin, Tenure o f O ffice and the R em oval P ow er, 27 Colum. L. Rev.
 354, 396 (1927); W illoughby, The L egal Status and Functions o f the G eneral
Accounting Office, 12-16 (1927). See also Reorganization Act of 1949, Ch.
 226., 63 Stat. 205; Reorganization Act o f 1945, Ch. 582., 59 Stat. 616. His
 functions derive from and must be based upon the performance of appropriate
 congressional functions. Second, confidential Executive branch communica­
 tions are presumptively privileged. See, U nited States v. N ixon, 418 U.S. 683
 (1974); Nixon v. G .S .A ., 433 U.S. 425 (1977). We think it clear that this
privilege, in order to be meaningful, must extend beyond the President
personally to those who serve under and advise him. Thus, confidential
communications between close Presidential advisers also fall within the
 “ presumptive privilege” identified by the Supreme Court. See, Nixon, supra,
at 682 ( “ A P resident'and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions . . . . ” );
Nixon v. A dm inistrator, 433 U.S. 446, n. 10 (acknowledging the “ legitimate
governmental interest in the confidentiality o f communications between high
government officials, e .g ., those who advise the President” ); Nixon v.
Sampson, 389 F. Supp. 107, 150 n. 112 (D .D .C . 1975).
    This conclusion is based on the same practical considerations that led the
Supreme Court in G ravel v. U nited States, 408 U.S. 606, 617 (1972), to
conclude that a Senator’s legislative side is entitled to the protections afforded
by the Speech and Debate Clause.
    Third, it must also be acknowledged that, unlike thfe privilege governing
sensitive military, diplom atic, and foreign affairs matters, the presumptive
privilege for confidential com munications is not absolute. Congress has
constitutional functions which it must carry out, and where collisions occur
between its exercise o f those functions and the Executive branch’s need to
preserve confidentiality, a careful weighing o f the respective interests must be
undertaken. Nixon v. G .S .A ., supra; U nited States v. A .T . & T. C o ., 567
F. (2d) 121 (D .C . Cir. 1977), Senate S elect C om m ittee on P residential
Cam paign A ctivities v. N ixon, 498 F. (2d) 725 (D.C. Cir. 1974). As stated in
the most recent decision by the D .C. Circuit Court o f Appeals, where genuine
and substantial competing interests are raised there is “ an implicit constitu­
tional mandate to seek optimal accommodation through a realistic evaluation

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of the needs of the conflicting branches in the particular fact situation.” U nited
States v. A .T. & T. C o ., 567 F. (2d) at 127.
   With these basic considerations in mind the Com ptroller G eneral’s subordi­
nate’s request can be analyzed. First, it would appear that the three sorts of
documents requested fall within the presumptive constitutional privilege and,
therefore, a decision not to disclose the requested documents might be properly
based on the determination that disclosure here would interfere with necessary
relationships of confidentiality. For the reasons stated above, we think that such '
a decision can extend not only to the direct communications between the
Chairman o f CEA and the President but also to the communications between
the Chairman and the Secretary of Energy and to the computer workup done in
order to assist the Chairman in providing advice to the President.
   Before finally arriving at that conclusion, however, we think attention should
be given to the Com ptroller G eneral’s subordinate’s reasons for seeking the
material and the authority upon which that request is based.
   In response to an inquiry from your deputy, the General Counsel of the
General Accounting Office stated in a letter dated August 11, 1978, that G A O ’s
“ right to access to the records” in question stems from 31 U .S.C . § 54 (1976).
This statute, which is G A O ’s basic provision with respect to its authority to
seek documents, derives from § 313 of the Budget and Accounting Act of
1921, Ch. 18, 42 Stat. 26, and reads as follows:
         § 313. All departments and establishments shall furnish to the
      Comptroller General such information regarding the powers, duties,
      activities, organization, financial transactions, and methods o f busi­
      ness o f their respective offices as he may from time to time require of
      them; and the Comptroller General, or any o f his assistants or
      employees, when duly authorized by him, shall, for the purpose of
      securing such information, have access to and the right to examine any
      books, documents, papers, or records of any such department or
      establishment. The authority contained in this section shall not be
      applicable to expenditures made under the provisions o f section 291
      of the Revised Statutes [31 U .S.C . § 107 (1976)].
As a matter of normal statutory construction we doubt whether this provision
provides a foundation for the request made in this instance. By its terms, § 313
directs “ all departments and establishm ents” 1 to comply with requests from the
Comptroller General for information concerning the “ powers, duties, activi­
ties, organization, financial transactions and methods of business of the
respective offices.” Because the information in question here plainly does not
relate to the powers, duties, organization, financial transactions and methods of
business o f the CEA , this provision can only apply if the term “ activities” is
given its very broadest meaning.


  'In view o f the broad definition o f the term “ departm ents and establishm ents” in § 2 o f the
Budget and Accounting Act (31 U .S .C . § 2 (1976)), we assum e arguendo that the term includes the
Executive Office o f the President, in which the CEA is located, and the W hite House Office.

                                               417
     The very breadth o f that term suggests the application of the ajusdem generis
  rule o f statutory construction to ascertain its import. Since the other terms o f the
   section refer to organizational and fiscal m atters, we can properly regard the
   work “ activities” as relating to activities o f that nature. That view is supported
   by the fact that § 313 was enacted at a time when the Comptroller General’s
   functions were limited to those areas. The information sought here does not
  relate to fiscal or organizational matters; we therefore question whether the
' request can be based directly on § 313.
     Although the most recent letter from the General Counsel of GAO does not
  explicitly so state, the Com ptroller General him self has heretofore taken the
  position that § 313 does not constitute an independent source of investigatory
  power. Instead, that section has been cited as an aid in carrying out powers and
  responsibilities elsewhere conferred on the Comptroller General. In other
  words, if some statute directs the Com ptroller General to investigate, review or
  evaluate, § 313 has the function of enabling him to obtain information from the
  Executive branch. In the words o f Com ptroller General Staats, § 313 is of a
  “ supportive” nature.2
     While we have not been directed by the General Counsel to any other
  applicable provision, § 204(a) of the Legislative Reorganization Act of 1970,
  as amended, is the only statute o f which we are aware that could serve as a basis
  for this request. That section directs the Comptroller General “ to review and
  evaluate the results o f government programs and activities carried on under
  existing law s.” Pub. L. 93-344, 88 Stat. 326 (1974). W hen the section was
  originally enacted in 1970 it was limited to fiscal and budgetary matters. Pub.
  L. 91-510, 84 Stat. 1140 (1970), H. Rept. 91-1215, p. 80. While certain
  amendments in 1974 made only minor changes in the wording of § 204(a), the
  relevant conference report discloses a congressional purpose to expand its
  scope so as to enable Congress to utilize the facilities o f GAO in connection
  with its legislative oversight functions.3


    2M em orandum subm itted by the C om ptroller G eneral in Defense Production Act Am endm ents,
 Hearings before the Subcom m ittee on Production and Stabilization o f the Com m ittee on Banking,
 Housing and Urban A ffairs, U .S . Senate, 92d C ong., 2d sess., on S. 669 and 1901, pp. 51, 53. See
 also in this connection M organ, T he General A ccounting O ffice, 51 North Carolina Law Review
 1279, 1352-1353 (1973).
   3The pertinent portion o f the Conference Report on the Congressional Budget Act o f 1974, S.
 Rept. 93-924, p. 72, reads:
 SECTION 702. REV IEW A N D EV A LU A TIO N BY CO M PTR O LL ER GENERAL.
          The Senate am endm ent expanded the review and evaluation functions and duties of
       the C om ptroller G eneral, including assistance to com m ittees and M em bers.
          The conference substitute is a revision o f the Senate provision. It am ends section
       204 o f the 1970 L egislative Reorganization Act to expand G A O assistance to
       C ongress. As am ended, section 204(a) provides that the C om ptroller Genera] shall
       evaluate Governm ent program s at his own initiative, when ordered by either House, or
       at the request o f a congressional com m ittee. Section 204(b) provides that upon request,
       the C om ptroller G eneral shall assist com m ittees in developing statem ents o f legislative
      objectives and m ethods for assessing program perform ance. The m anagers consider
      oversight o f executive perform ance to be am ong the principal functions o f congres­
      sional com m ittees and they recognize that the usefulness o f program evaluation can be
                                                                                        (Continued)

                                                418
    The request for information concerning the computer model may come
 within the scope of § 204(a) if it can fairly be said to relate to some legislative
 oversight o f the manner in which programs and activities o f the CEA are carried
 on under existing law. The only substantive piece of legislation involved in the
 Chairman’s activities here was the preparation of an affidavit under the
 Taft-Hartley Act. It should first be noted that this activity is not among the
 statutory functions imposed on CEA under § 4(c) of the Employment Act of
 1946. Ch. 33, 60 Stat. 23, 15 U .S.C . § 1023(c) (1976). To the contrary, when
 the Chairman of CEA prepared and executed the affidavit, he was not
 administering a program subject to legislative oversight but was acting in his
capacity as an adviser and assistant to the President.
    Assuming arguendo that the preparation and execution of a Taft-Hartley
 affidavit by the Chairman of the CEA might come within the scope of § 204(a)
 in connection with the exercise of legislative oversight of the manner in which
the Taft-Hartley Act is administered, the fact is that it appears from the request
that the House Subcommittee on Energy and Power is not engaged in legislative
oversight with respect to Taft-Hartley and does not appear to have jurisdiction
over that program or activity. Hence, § 204(a) would not appear to constitute an
authority for the review and evaluation by the Comptroller General of the
manner in which the Taft-Hartley Act is administered.
    We presume, although it is not entirely clear, that it might be claimed that
this investigation is addressed to the more general question whether there is in
existence adequate legislation to avert energy shortage crises in the future.4 If
this is GAO’s interest, it is not clear to us how the information requested should
prove relevant to that inquiry. We believe that in order to make the kind of
“ accommodation” suggested by the District o f Columbia Circuit Court of
Appeals, you would want to know a good deal more about the reasons why this
particular information is being requested. Ordinarily, the examination o f a
single historical incident would not serve as a very useful aid in evaluating the
need for legislation. M oreover, to the extent that the examination o f a particular
episode is deemed important, we would think that the relevant factual details
could be gathered without requiring the disclosure o f this kind o f confidential
information.
   In summary, it appears to us that there is a substantial basis upon which a
decision might be made not to share this information with the Comptroller
General’s staff. From the information given us by GAO we cannot readily
ascertain the authority underlying the request. Nor can we assess the relevance
or importance of the information sought. We suspect, however, that a more
detailed factual inquiry would likely demonstrate that the interest in preserving


(Continued)
     enhanced by the clear expression of legislative objectives and the em ploym ent of
     m odem analytic m ethods. The m anagers further believe that statem ents of intent can
     be most appropriately developed by the com m ittee o f jurisdiction. M em bers must be
     provided upon request with all related inform ation after its release by the com m ittee for
     which it was com piled.
  “There is a suggestion to this effect in the letter to Chairm an Schultze dated July 27. 1978.

                                              419
 the confidentiality o f Executive branch com m unications would exceed the
 interest GAO might identify in support o f its request.

                                                  II.

   The second request, addressed to your deputy, asks for detailed information
as to whether recent Presidential appointments to the U .S. Metric Board
complied with the specific qualification requirements of 15 U .S.C . § 205d
(1976). This request, also signed by a subordinate GAO official, was made at
the request of an individual m ember o f Congress.
   It is our view that compliance with this request is not required. Since the
information sought does not involve fiscal matters, the Comptroller General’s
authority must be based on § 204(a). See supra. A request for information
under that section, however, presupposes action by either House of Congress or
by a committee having jurisdiction over the program or activity under review or
evaluation; a request o f a single m em ber does not authorize the Comptroller
General to proceed.5
   Beyond that, the request for information may well be outside the jurisdiction
of the Com ptroller General as an arm of Congress. Under the Constitution,
Article II, § 2, the pow er o f appointment of the members o f the Board is vested
in the President and the Senate, and not in Congress as a whole. Hence, it is the
responsibility o f the President and Senate to determine whether there has been
compliance with the qualification requirements of. 15 U .S.C . § 205(d) (1976).
As James Madison said during the First Session o f the First Congress during the
Great Debate concerning the removal power o f the President:
        The Legislature creates the O ffice, defines the powers, limits its
      duration and annexes a compensation. This done the Legislative
      power ceases.6
   M oreover, the appointment o f officers o f the United States by the President
by and with the advice o f the Senate does not constitute a Government program
or activity carried out under existing law as required by § 204(a).
   Finally, it should be noted that there is considerable question whether
Congress has the power under the Appointm ents Clause significantly to restrict
the President’s discretion in fulfilling his duty to nominate officers o f the
United States. See, B uckley v. Valeo, 424 U .S. 1 (1976). The process whereby
the President is restricted in naming members to the Board would raise serious
questions if the President were therefore deprived o f discretion in performing
his nominating function. 40 Op. A. G. 551 (1947); 13 Op. A. G. 516, 525



   ’ Section 204(a), it is true, enables the C om ptroller General to proceed on his own initiative.
H ow ever, it cannot be anticipated that the C om ptroller G eneral will take that step after having
received the request o f a single C ongressm an, since such a step could have the effect o f
jeopardizing his “ role as an independent nonpolitical agency o f the legislative b ran ch .” See also
M ansfield, The C om ptroller G eneral, 258; M organ, The G eneral Accounting O ffice, supra, at
 1299-1300.
   6A N N A L S o f C o n g r e s s , First Congress, First Session, C ol. 582.


                                                420
(1871); c f , M yers v. U nited States, 272 U .S. 52, 121 (1926). We would have
an even greater concern if it were concluded that those who submit names of
qualified applicants could not be assured that the names remain confidential.
The President might well conclude that in order adequately to fulfill his
nominating responsibility he must have candid and straightforward advice from
those who submit the names. If the President were so to conclude we think his
decision not to disclose would be justified both on the ground that confidentiality
is essential to the Appointments Clause process and on a more generalized
presumptive constitutional privilege.


                                                    John M . Harm on
                                                A ssistant A ttorney G eneral
                                                        Office o f L egal C ounsel




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