         Authority of Agency Officials to Prohibit Employees
             From Providing Information to Congress
Consistent with longstanding Executive Branch positions, Department of Health and Human Services
  officials have the authority to prohibit officers or employees of the Department from providing
  information to Congress.

                                                                                  May 21, 2004

                    LETTER OPINION FOR THE GENERAL COUNSEL
                   DEPARTMENT OF HEALTH AND HUMAN SERVICES

    This letter replies to your request for our response to a memorandum recently
issued by the Congressional Research Service. See Memorandum for Honorable
Charles Rangel, House Committee on Ways and Means, from Jack Maskell,
Legislative Attorney, American Law Division, Congressional Research Service,
Re: Agency Prohibiting a Federal Officer from Providing Accurate Cost Infor-
mation to the United States Congress (Apr. 26, 2004) (“CRS Memo”). The CRS
Memo concludes that senior administrators within the Department of Health and
Human Services (“HHS”) “do not have the right to prevent or prohibit their
officers or employees, either individually or in association, from presenting
information to the United States Congress, its Members or committees, concerning
relevant public policy issues.” Id. at CRS-1 to CRS-2. We believe, consistent with
longstanding Executive Branch legal positions, that HHS officials do indeed have
such authority.
    The CRS position is based principally on the Lloyd–LaFollette Act, 5 U.S.C.
§ 7211 (2000), and the appropriations riders currently enacted as sections 618 and
620 of the Transportation, Treasury, and Independent Agencies Appropriations
Act, 2004, Pub. L. No. 108-199, 118 Stat. 279, 354, 355. CRS interprets these
statutes to establish “that a federal employee has the right to communicate with
and to provide information to the United States Congress, or to a Member or
committee of Congress, and that such right may not be interfered with or imped-
ed.” CRS Memo at CRS-3. CRS insists that “[t]here are no countervailing ‘sepa-
rations [sic] of powers’ indications generally, nor legitimate ‘executive privilege’
claims specifically, to justify in this matter the withholding from the United States
Congress [of] relevant public policy information by an executive branch officer in
a federal agency or department lower down in the chain of command from the
President.” Id. at CRS-2. There are two fundamental errors in the CRS analysis:
(1) its summary dismissal of separation of powers concerns and (2) its incorrectly
narrow view of the scope of executive privilege.1


    1
      CRS also discusses whether the Chief Actuary has a statutory responsibility to provide cost
estimates and other assistance to Congress. See CRS Memo at CRS-6 to CRS-7. That question is




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                                                 I.

   There are serious separation of powers considerations that bear directly on the
proper interpretation of the statutes relied upon by CRS. The longstanding
Executive Branch position is decidedly contrary to the CRS view. The Executive
Branch position was perhaps most succinctly summarized in the Statement of
Administration Policy (“SAP”) that the Clinton Administration issued on March 9,
1998. The SAP stated that the Administration had determined that S. 1668, a bill
purporting to direct the President to inform employees in the intelligence commu-
nity that they had a right to disclose classified information to Congress without
authorization, was an unconstitutional violation of separation of powers principles
and, if presented to the President, would be the subject of a veto recommendation
from his senior advisors. The SAP went on to say that:

        This provision is clearly contrary to the Supreme Court’s explicit
        recognition of the President’s constitutional authority to protect na-
        tional security and other privileged information. Congress may not
        vest lower-ranking personnel in the Executive branch with a “right”
        to furnish national security or other privileged information to a
        member of Congress without receiving official authorization to do
        so. By seeking to divest the President of his authority over the dis-
        closure of such information, S. 1668 would unconstitutionally in-
        fringe upon the President’s constitutional authority.

This position was more fully articulated in Office of Legal Counsel testimony. See
Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. 92 (1998)
(“Moss Testimony”).
   The Clinton Administration SAP and the Moss Testimony relied on longstand-
ing Department of Justice positions developed in connection with the statutory
provisions on which CRS relies. Those positions were articulated in a brief the
Solicitor General filed in the Supreme Court in 1989 in Am. Foreign Serv. Ass’n v.
Garfinkel, 488 U.S. 923 (1988) (No. 87-2127). That brief was cited in the Moss
Testimony, 22 Op. O.L.C. at 92 n.1, and summarized in a 1996 OLC opinion,
Access to Classified Information, 20 Op. O.L.C. 402, 402–05 (1996). The 1989
Solicitor General brief and the 1996 OLC opinion explained why, under separation
of powers principles, Congress may not bypass the procedures the President
establishes to authorize the disclosure to Congress of classified and other privi-
leged information by vesting lower-level employees with a right to disclose such
information to Congress without authorization. Accordingly, the Department ad–



addressed in the legal opinion provided to the Office of the HHS Inspector General by HHS’s Office of
General Counsel on May 12, 2004.




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        Authority to Prohibit Employees From Providing Information to Congress


vised that it would not interpret the statutes cited by CRS here as vesting such
a right in Executive Branch employees. Id. at 404–05.
    The position presented in the Clinton Administration SAP (see reference to
“other privileged information”) and the Moss Testimony, 22 Op. O.L.C. at 101
n.34, was not limited to classified information, but extended to all deliberative
process or other information protected by executive privilege. Because these
statutes may not override the constitutional doctrine of executive privilege, they
may not act to prohibit the supervision of the disclosure of any privileged infor-
mation, be it classified, deliberative process or other privileged material. See
Memorandum for Peter J. Wallison, Counsel to the President, from Charles J.
Cooper, Assistant Attorney General, Office of Legal Counsel, at 3 n.6 (Sept. 8,
1986) (“Consistent with our view that Congress cannot override executive
privilege by statutory enactment, we do not believe the ‘whistleblower’ provisions
allow an employee to escape sanctions for disclosure of material covered by exec-
utive privilege.”). See also Memorandum for Robert M. McNamara, Jr., General
Counsel, Central Intelligence Agency, from Todd D. Peterson, Deputy Assistant
Attorney General, Office of Legal Counsel, Re: Legal Authority to Withhold
Information from Congress at 3 (Sept. 9, 1998) (“application of [statutory]
reporting requirements . . . is limited by a constitutional restraint—the executive
branch’s authority to control the disclosure of information when necessary to pre-
serve the Executive’s ability to perform its constitutional responsibilities”).
    The foregoing discussion does not mean that an agency’s right to supervise its
employees’ disclosures to Congress is limited to privileged information. The
discussion establishes only that the CRS interpretation that the “right of disclo-
sure” statutes prohibit Executive Branch supervision of employee disclosures
unconstitutionally limits the ability of the President and his appointees to supervise
and control the dissemination of privileged government information. However, the
CRS position also unconstitutionally limits the President’s ability to supervise
and control the work of subordinate officers and employees of the Executive
Branch more generally. See Constitutionality of Statute Requiring Executive
Agency to Report Directly to Congress, 6 Op. O.L.C. 632, 633 (1982) (statutory
“requirement that subordinate officials within the Executive Branch submit reports
directly to Congress, without any prior review by their superiors, would greatly
impair the right of the President to exercise his constitutionally based right to
control the Executive Branch”; provision would be unconstitutional if so con-
strued); Authority of the Special Counsel of the Merit Systems Protection Board to
Litigate and Submit Legislation to Congress, 8 Op. O.L.C. 30, 31 (1984) (“Con-
gress may not grant [Special Counsel] the authority to submit legislative proposals
directly to Congress without prior review and clearance by the President, or other
appropriate authority, without raising serious separation of powers concerns”).
    This second, “unitary Executive” position is based on the following rationale:




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                    Opinions of the Office of Legal Counsel in Volume 28


        The [judicial] decisions and the long practical history concerning the
        right of the President to protect his control over the Executive
        Branch are based on the fundamental principle that the President’s
        relationship with his subordinates must be free from certain types of
        interference from the coordinate branches of government in order to
        permit the President effectively to carry out his constitutionally as-
        signed responsibilities. The executive power resides in the President,
        and he is obligated to “take care that the laws are faithfully execut-
        ed.” In order to fulfill those responsibilities, the President must be
        able to rely upon the faithful service of subordinate officials. To the
        extent that Congress or the courts interfere with the President’s right
        to control or receive effective service from his subordinates within
        the Executive Branch, those other branches limit the ability of the
        President to perform his constitutional function.

6 Op. O.L.C. at 638-39. Based on this rationale, we do not believe that the statutes
relied upon by CRS could constitutionally be applied, as CRS would apply them,
to the circumstance where a government official instructs a subordinate govern-
ment employee not to provide an administration’s cost estimates to Congress,
whether or not the estimates are viewed as privileged.2

                                               II.

   CRS’s dismissal of any separation of powers concerns with its reading of the
“right of disclosure” statutes is exacerbated by its much too narrow view of the
scope of executive privilege. CRS cites In re Sealed Case, 121 F.3d 729 (D.C. Cir.
1997), for the proposition that “executive privilege does ‘not extend to staff
outside the White House in executive branch agencies,’ covering only those with
‘operational proximity’ to the President.” CRS Memo at CRS-2 n.7. This mischar-
acterizes Sealed Case, a case addressing the scope of the presidential communica-
tions component of executive privilege, as a case defining the overall scope of
executive privilege. To the contrary, the holdings of Sealed Case were limited to
the presidential communications privilege, and not only did the court not seek to
define the scope of other components of executive privilege, but it also explicitly
identified another component of executive privilege, the deliberative process
privilege, which is the component applicable in the HHS actuarial-estimates
context that occasioned the CRS Memo. See Sealed Case, 121 F.3d at 737 (“The
most frequent form of executive privilege raised in the judicial arena is the
deliberative process privilege”). The court contrasted the two privileges, indicating
that “one applies to decisionmaking of executive officials generally, the other


    2
      As discussed in the HHS legal opinion, the Chief Actuary is not “independent” for purposes of
presidential or HHS supervision over the disclosure of HHS records or information to Congress.




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          Authority to Prohibit Employees From Providing Information to Congress


specifically to decisionmaking of the President.” Id. at 745.3 See also Judicial
Watch v. Dep’t of Justice, 365 F.3d 1108, 1109 (D.C. Cir. 2004) (referring to the
deliberative process and presidential communications privileges as “two privileges
falling within [the executive privilege] doctrine”); id. at 1113–14 (“the deliberative
process privilege . . . is a general privilege that applies to all executive branch
officials”).
    This principle that the deliberative process component of executive privilege
applies government-wide, and is not limited to presidential decisionmaking, was
also recognized implicitly in the leading Supreme Court decision on executive
privilege, United States v. Nixon, 418 U.S. 683, 705 (1974) (recognizing “the valid
need for protection of communications between high Government officials and
those who advise and assist them in the performance of their manifold duties”),
and it has been the basis for numerous executive privilege assertions in the last 50
years concerning intra-agency deliberations, including deliberations involving
lower-level agency officials. The history of those assertions as of 1991 is chroni-
cled in a Department of Justice letter, which also chronicles Department of Justice
legal positions. See Letter to Honorable Howard M. Metzenbaum, United States
Senate, from W. Lee Rawls, Assistant Attorney General, Office of Legislative
Affairs (July 1, 1991). Subsequent to that letter, Presidents George Bush, Bill
Clinton and George W. Bush each asserted executive privilege against congres-
sional committees to protect intra-agency deliberative materials prepared for
senior officers in executive departments below the President.4

                                                          JACK L. GOLDSMITH III
                                                          Assistant Attorney General
                                                           Office of Legal Counsel




    3
      The court noted in Sealed Case that executive privilege claims in the congressional context
historically have generally concerned deliberative process privilege rather than presidential communi-
cations privilege. See id. at 739 (“Presidential claims of a right to preserve the confidentiality of infor-
mation and documents figured more prominently in executive-congressional relations, but these claims
too were most often essentially assertions of the deliberative process privilege.”).
    4
      Although we cannot opine on the privileged status of particular documents without reviewing the
documents themselves, we can say that the estimates an administration develops for its internal use
in considering policy options should generally be considered privileged because they reflect the
deliberative process.




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