                                                                       January 17, 1979


79-6        MEMORANDUM OPINION FOR THE
            ASSISTANT ATTORNEY GENERAL,
            CRIMINAL DIVISION
            The President—Interpretation of 18 U.S.C. § 603 as
            Applicable to Activities in the White House

   This responds to your memorandum of November 30 requesting our
opinion concerning the application of 18 U.S.C. § 603 to activities in the
White House involving the President.' Your inquiry arises in connection
with a pending investigation of the allegation that during the course of an
August 10, 1978 luncheon for about 20 Democratic Party donors and fund-”
raisers that took place in the Family Dining Room of the White House, the
President solicited contributions for a political purpose within the meaning
of that criminal statute. This investigation is being conducted in accordance
with Title VI of the Ethics in Government Act of 1978, Pub. L. No.
95-521, 92 Stat. 1824. Pursuant to § 601 of that Act, 28 U.S.C. § 592, where
an allegation of criminal misconduct is made with regard to persons holding
certain high official positions in Government, including the Presidency, the
Attorney General is charged with conducting a preliminary investigation of
the matter. If he determines that the matter warrants further investigation
or if he has not determined within 90 days of receiving the information
“ that the matter is so unsubstantiated as not to warrant further investiga­
tion or prosecution,” he is required to apply to a special division of the U.S.
Court of Appeals for the District of Columbia for the appointment of a
special prosecutor. If the Attorney General concludes that the matter is
“ unsubstantiated,” he must file a memorandum to that effect with the


   1 Although your initial inquiry concerned the application of § 603 to both the President
and the Vice President, we understand that only its application to the President is now at ~
issue, and have framed our discussion accordingly. In general, however, the analysis here set
forth would apply to both the President and the Vice President.
Editor’s Note: The Special Prosecutor Division of the U.S. Court of Appeals for the District
of Columbia Circuit granted leave to the Attorney General to disclose, in the public interest,
his report of February 1, 1979, on the above matter. The report is appended to this opinion.

                                            31
court. In taking the required action, the Attorney General is not to deter­
mine whether the allegations constitute a prosecutable offense or whether
an indictment should be sought. No constitutional question is therefore
raised as to whether a sitting President may be indicted, an issue seen by
the Watergate Special Prosecutor in 1974 as an open one.2
   To assist you in making your recommendations to the Attorney
General, you have asked us to address the questions of statutory con­
struction presented by 18 U.S.C. § 603 in this context. Two specific issues
are involved: (1) whether a room in the White House reserved for the use
of the President is a room “ occupied * * * by any person mentioned in
section 602 [of title 18]” ; and (2) whether a room such as the Family Din­
ing Room is one “ occupied in the discharge of official duties.” We believe
that the answer to the first of these questions is in the affirmative. The
answer to the second, a much more difficult issue, depends upon the cir­
cumstances of the particular case. We have also summarized the com­
peting views on a third question of statutory interpretation raised by § 603,
i.e., whether solicitation of a private person, rather than a Federal officer
or employee, was intended to come within the terms of the Act. In light of
our resolution of the second issue, we have not, however, reexamined the
Department’s past position on the third question.3

                                     I. The Statute
   Section 603 provides as follows:
      Whoever, in any room or building occupied in the discharge of
      official duties by any person mentioned in section 602 of this
      title, or in any naval yard, fort, or arsenal, solicits or receives any
     contribution of money or other thing of value for any political
      purpose, shall be fined not more than $5,000 or imprisoned not
      more than three years, or both.
The word “ whoever” is broadly inclusive, replacing a reference to “ no
person” contained in § 603 as originally enacted in 1883.4 There is no in­
dication that the 1948 enactment of title 18 into positive law, 62 Stat. 683,
which changed the word “ whoever” (defined by 18 U.S.C. § 591 as inter­
changeable with the word “ person” ) was intended to limit the sweep of
the initial, all-encompassing reference. Judicial construction of the
original provision shortly after its enactment established that private citi­
zens, as well as Government officers and employees, fell within the scope
of its prohibition. See, United States v. Newton, 20 D.C. (9 Mackey) 226



   : See, Reply Brief for the United States, at 24-34, in United Stales v. Nixon, 418 U.S. 683
(1974).
   1 We have not considered a fourth critical question, which turns primarily on matters of
fact, i.e., whether a solicitation within the terms of the statute has occurred.
  4 Act of January 16, 1883, cl. 27, 22 Stat. 403, 407, as amended. This Act is commonly
referred to as the Pendleton Civil Service Act.

                                            32
 (1891).5 This construction is in accord with Congress’ apparent intent that
§ 603 apply to all persons.6
   While the broad prohibition in § 603 is thus to be observed, its applica­
tion is more narrowly limited to “ any room or building occupied” by cer­
tain persons for certain purposes. The phrase “ any room or building” is
relatively straightforward. Since both “ room” and “ building” are men­
tioned, it appears that Federal occupation of a single room in otherwise
non-Federal premises would not bring the whole of those premises within
the area encompassed by the statutory prohibition. On the other hand, the
inclusion of a reference to buildings and not simply rooms indicates that
common areas such as corridors, and not simply offices in actual use, fall
within the scope of the statute.7 The meaning of the phrases “ person men­
tioned in section 602 of this title” 8 and “ occupied in the discharge of
official duties” is less clear.

                               II. The Persons Mentioned
  The bar on solicitation imposed by § 603 applies only in rooms and build­
ings occupied by persons mentioned in Section 602 of title 18. Section 602
provides:


    ’ There, the court rejected the defendant’s assertion that, to fall within the terms of the
 statute, the person soliciting had to have been “ either an employee of the Government of the
 United States, or one of the officers named in [the original versions of 18 U.S.C. §§ 602, 606,
 or 607].” Instead, the court said, Congress could prescribe rules of conduct “ to be observed
 not only by officers and employees of the Government who shall occupy [the specified] places
 for the time being, but also by the citizen who may for any purpose be allowed to go into these
 places.” 20 D.C. at.231. Relying on the plain language of § 603, the court concluded that the
 provision should be read as forbidding persons outside the Government from engaging in the
 forbidden activities in Government buildings. See also. United States v. Burleson, 127 F.
 Supp. 400, 402 (E.D. Tenn. 1954) (“ Section 603 prohibits solicitation or receipt by anybody of
 contributions in a Government building, or building occupied in whole or in part by Govern­
 ment employees, or persons compensated by money derived from the Treasury of the United
 States” ).
    * See, e.g., 14 Cong. Rec . 622 (1882) (Senator Coke) (§ 603 “ applicable to all persons” ); id.
 at 636 (Senator Hawley) (“ forbidding any person in the world” ).
    ’ It should be noted that § 603 was revised in 1948 to prohibit solicitation or receipt of any
contribution for any political purpose “ from any such person,” i.e., from any person men­
tioned in § 602. The change was intended “ to make it clear that the section [would] not em­
 brace State employees in its provisions [albeit that] [s]ome Federal agencies are located in State
buildings occupied by State employees.” See 62 Stat. 722; see also H. Rept. 304, 80th Cong.,
 1st sess. A51 (1947). Earlier draft versions of the criminal code revision did not accomplish
such a change and the reasons for its introduction in the later versions are not explained. Com­
pare H. Rept. 152, 79th Cong., 1st sess. A47 (1945), with H. Rept. 152, Pt. 2, 79th Cong., 2d.
sess. A46(1946). In 1951 these additional words were stricken because they had not been con­
tained in the version of § 603 adopted as part of the 1909 criminal code revision. See S. Rept.
 1020, 82d Cong., 1st sess. (1951), reprinted at 1951 U.S. Code Cong. & Adm. 2578, 2584. This
narrowing of the class of potential victims and then return to the statute’s original scope does
not reveal any intention to alter the dimensions o f the zone in which such conduct toward a
specified victim class was to be prohibited.
   * As originally enacted both § 603 and § 606 referred to persons “ mentioned in this act”
rather than to persons “ mentioned in section 602.” The current language of reference was
adopted as part of the 1948 Criminal Code revision, 62 Stat. 722. This change appears to have
no great significance, other than to focus the current inquiry more narrowly on § 602 rather
than, in addition, upon other sections of the Pendleton Act.

                                                33
     Whoever, being a Senator or Representative in, or Delegate or
     Resident Commissioner to, or a candidate for Congress, or in­
     dividual elected as, Senator, Representative, Delegate, or Resi­
     dent Commissioner, or an officer or employee of the United
     States or any department or agency thereof, or a person receiving
     any salary or compensation for services from money derived
     from the Treasury of the United States, directly or indirectly
     solicits, receives, or is in any manner concerned in soliciting or
     receiving, any assessment, subscription, or contribution for any
     political purpose whatever, from any other such officer,
     employee, or person, shall be fined not more than $5,000 or im­
     prisoned not more than three years or both.
The language of § 602 can be construed in a variety of ways. The specific
mention of Senators, Representatives, and Delegates without a similar ex­
press reference to the President and Vice President might be interpreted to
mean that these high-ranking officers were not meant to be included
within the scope of the statute.’ We believe, however, that the inclusion of
specific references to legislative officers may more plausibly be explained
by congressional intent to override a decision of the Attorney General that
Senators and Representatives did not fall within the scope of an earlier
provision, enacted in 1876, upon which § 602 was closely modeled.10 It
might also be argued that the language “ any person receiving any salary or
compensation for services from money derived from the Treasury of the
United States * * * ” extends on its face to anyone, including the Presi­
dent, who is paid from Treasury funds." This phrase could, on the other
hand, be said to serve a distinct purpose in reaching Government


   ’ The Vice President is often regarded as an officer of the legislative branch by virtue of his
responsibilities as President of the Senate. The failure to include a reference to the Vice Presi­
dent along with Senators, Representatives, and Delegates might therefore be said to raise the
implication that neither he nor the President in whose stead he may be called to serve were
meant to fall within the scope of § 602. The unique nature of the Vice Presidency was relied
upon by Acting Attorney General Laurence Silberman in a 1974 opinion that the language
“ officer or employee of the executive branch” in 18 U.S.C. § 208 did not encompass the Vice
President. See letter to Howard N. Cannon, Chairman, Committee on Rules and Ad­
ministration, U.S. Senate (Sept. 20, 1974). Reliance was also placed on the statutory scheme
requiring an officer having a financial interest to disqualify himself, a prospect not
reasonably intended to extend to the President and, it may be inferred, to the Vice President;
the waiver arrangement included in the statute which assumes the existence of an “ official
responsible for appointment;” and specific legislative history expressing the view that legisla­
tion in the area of conflicts of interest should treat the President and Vice President in a
unique fashion. None of these considerations exists in the present case.
   10 17 Op. A tt’y Gen. 419 (1882).
   ' 1 Section 602, as originally enacted, did not list persons receiving salary or compensation
derived from the Treasury o f the United States among the class of persons forbidden from
soliciting or receiving contributions but only among the class o f persons who could not be
solicited. This arrangement was altered in 1925 as a result of the Federal Corrupt Practices
Act of 1925, 43 Stat. 1073. The amendment to § 602 was offered on the floor of the House
without any detailed explanation of the drafters’ intent. See 65 C o n g . R e c . 10329 (1924)
(Representative Cable).

                                               34
contractors and other such persons not included within the section’s “ of­
 ficer or employee” language, rather than expanding the class of covered
 “ officers” to include the President if it would not otherwise do so. Fi­
 nally, it might be contended that the word “ officers” is used in a narrow
constitutional sense to denominate persons appointed by the President or
heads of departments whose positions satisfy the traditional requirements
of office described in the Germaine case,12 and not elected officers such as
the President and Vice President. It has, however, been recognized that
the critical consideration in determining the meaning of the word
“ officer” is not compliance with the Germaine standards alone, but rather
the intent of Congress.13 That intent, in this case, is most clearly revealed
by the debate on the 1883 Pendleton Act.
    Significantly, as was often mentioned in the debate, the problem of
“ political assessments” —the demand for and collection from Govern­
ment employees of a percentage of their salary to support the reigning
political party and its campaign activities—had been addressed in 1876 by
means of an amendment to an appropriation bill, which forbade “ all ex­
ecutive officers or employees of the United States not appointed by the
President with the advice and consent of the Senate * * * [from] re­
questing, giving to, or receiving from any other officer or employee of the
Government, any money * * * for political purposes.” 14 This 1876 pro­
vision is, however, not the only relevant precursor to the 1883 legislation.
In 1867 a provision which, on pain of dismissal, prohibited any “ officer or
employee of the Government” from requiring “ any workingman in any
navy yard to contribute or pay any money for political purposes” was
passed as a rider to an appropriation bill.15 The legislative history of this
provision suggests that it was meant to address abuses by such high-
ranking officials as the Secretary of the Navy.16 It therefore seems clear
that where Congress intended to limit the sweep of legislation of this sort,
it did so expressly, as was the case in 1876. Despite the precedent provided
by the 1876 provision, however, most of the proposed bills on the subject
o f political assessments17 and § 602 as finally enacted contained no similar
express indication that all executive officials were not to be included with­
in its scope. Indeed, on at least one occasion, Senator Pendleton, in an im­
passioned speech, decried just that sort of technical distinction between


   l! United States v. Germaine, 99 U.S. 508 (1878).
   IJ 40 Op. A tt’y Gen. 294, 297 (1943); Steele v. United States, No. 2, 267 U.S. 505, 507
(1925); United States v. Hendee, 124 U.S. 309 (1888).
   14 Act of August 15, 1876, ch. 287, 19 Stat. 143, 169. As originally enacted, this provision
provided that violators would be deemed guilty of a*misdemeanor and fined $500; they would
also be discharged. This provision is now codified at 5 U.S.C. § 7323; a violation is no longer
deemed a misdemeanor and only the penalty of removal has been retained.
   " Act of March 3, 1867, c. 172, 14 Stat. 489, 492.
   '* See C o n g . G l o b e , 39th Cong., 2d sess. 1948 (1867) (Senator Wilson).
   " But see 14 C o n g . R e c . 21 (1882) (Springer proposal to amend 1876 provision to prohibit
any Member of Congress, Presidential appointee “ or other person” from engaging in the
solicitation of Federal employees on pain o f criminal fine, but not removal from office).

                                               35
Presidential appointees and other Federal officers.18 The congressional
intent that those officers formerly excluded from the scope of the provi­
sion were henceforth to be included within the class of persons governed
by the terms of § 602 and its compansion provisions thus seems rather
clear.
   It does not necessarily follow, however, that the President himself, and
not simply Presidential appointees, were similarly intended to be brought
within the reach of these new provisions. One brief statement made by
Senator Edmunds, reporting a bill developed by the Judiciary Committee
in response to a resolution requesting that committee to consider the prob­
lem of political assessments, is particularly noteworthy:
      I am instructed by the [Judiciary] Committee * * * to report an
      original bill which I send to the Chair to be placed upon the
      Calendar. And I am authorized by the Committee to make this
      statement that in the draft of the bill it is not the purpose of the
      Committee to create any implication as to the right of the legisla­
      tive power to restrain the President in regard to the matters in
      question. [14CONG. Re c . 600(1882).]
This oblique statement could signify that Congress did not intend to bring
the President within the scope of 18 U.S.C. § 602, § 603, § 606, or § 607,
provisions which in large part were modeled upon the Judiciary Com­
mittee bill.19 It is, on the other hand, evident that Congress was particu­
larly sensitive to the important constitutional issue raised by any attempt
to limit the President’s discretion with regard to the removal of his ap­
pointees as would have been the case under § 3 of the bill, the prohibition
on removal now found in 18 U.S.C. § 606.20 Seen in this light, Senator Ed­
munds’ statement has completely contrary implications, suggesting that a
committee disclaimer was necessary since the President was indeed re­
garded as an executive officer of the United States whose politically
motivated discharge of a direct subordinate was seen to fall within the
scope of the bill.
   Support for the latter interpretation and, we believe, critical evidence
suggesting that the President falls within the class of persons governed by
the bill, is found in a subsequent discussion of § 606, which, in a fashion
similar to § 603, refers to “ officers or employees of the United States




  " See 13 C o n g .   R ec.   5331-5332 (1882)!
  " 14 C o n g . Re c . 643 (1882) (Senator Maxey).
   10 The power of Congress to limit the President’s power of appointment and removal was
often debated in connection with the related debate on Senator Pendleton’s Civil Service bill.
See, e.g., 14 C o n g . R e c . 608 (1882) (Senator Van Wyck). Continuing disagreement regarding
this power may well have caused the Judiciary Committee to request Senator Edmunds to
make such a disclaimer.

                                                   36
mentioned in Section 602.” 21 Senator Hawley, who offered the amend­
ment to the Pendleton Civil Service bill which in large part incorporated
the Judiciary Committee’s proposal for a separate bill addressing the
problem of political assessments, described a correction he had made in
the language of his proposal as follows:
      [T]his clause, “ by reason of any vote such officer or employe has
      given or withheld, or may purpose to give or withhold, at any
      political election,” has been striken out. On a moment’s thought
      it was seen that that came in conflict with what is universally ad­
      mitted to be the right o f a Chief Executive to make appointments
      in a certain branch of controlling offices in accordance with his
      own political faith. That he has a right to do, and he could not
      conduct the Government without it * * *. That would have for­
      bidden, as the draft originally stood by an oversight, the Presi­
      dent of the United States from changing his attorney-general
      from one party to another, or changing a foreign minister, or
      perhaps even changing a cabinet minister. So that part is
      withdrawn, and it now only forbids employes collecting from
      each other, and forbids persons going into the Government
      rooms and offices and there collecting money for political pur­
      poses. That is clearly a thing we have a right to do. Then it for­
      bids degrading or discharging a man for giving or not giving
      money. All three of these things are clearly within our legitimate
      function. [14CONG. Rec . 622(1882).]
It is clear, therefore, that he intended the President to be included among
the “ officers” governed by the bill. While narrowing the scope of § 606 to
limit its sweeping bar on removal for what in essence would simply be
political affiliation as evidenced by an officer’s past voting record,
Senator Hawley left untouched the prohibition on removal for failure to
provide political support in the form of monetary contributions. He thus in
large measure eliminated the kind of constitutional concern that may have
been the basis for the Judiciary Committee’s earlier disclaimer. While a
similar question concerning the application of § 606 to the President was
subsequently raised by Senator Jones at the close of debate on the political
assessments bill,22 no response was deemed necessary, probably because


 21 Section 606 provides:
      Whoever, being one of the officers or employees of the United States mentioned in
      section 602 of this title, discharges, or promotes, or degrades, or in any manner
      changes the official rank or compensation of any other officer or employee, or prom­
      ises or threatens so to do, for giving or withholding or neglecting to make any con­
      tribution of money or other valuable thing for any political purpose, shall be fined not
      more than $5,000 or imprisoned not more than three years, or both.
 21 See 14 C o n g . R ec. 670 (1882):
      With respect to the third section o f the bill [18 U.S.C. § 606], I should like to ask the
      Senator from Vermont if the word ‘officer’ as used here can be held to include the
      President of the United States? Because if so it would present to my mind a very
      serious and embarrassing objection to this part of the bill * * *.
                                                                                    (Continued)

                                             37
the Jones statement failed to take into account the significant degree to
which the Hawley correction had narrowed the scope of the § 606 prohibi­
tion on removal.
   Additional statements in the course of debate evidencing a concern that
the President, too, had been involved in political assessment abuses pro­
vide further evidence in support of the view that the President was not
thought to be outside the intended scope of the 1883 political assessment
legislation.23 So, too, do general statements that the actions of “ every
officer and employe of the Government who can be thought o f ’ and “ any
of the officers of the Government of any rank or degree” were to be re­
stricted pursuant to those provisions.24 These broad statements are partic­
ularly noteworthy in a context where Congress could reasonably conclude
that all schemes involving any Government official’s efforts to coerce a
subordinate to contribute funds to a political cause constituted an abuse of
power, a violation of the rights of the subordinate, and, a consideration
not insignificant in their eyes, a patently inequitable method for diverting
funds appropriated for employee salaries into partisan hands. Such policy
considerations undoubtedly apply even more strongly to persons closer to
the pinnacle of the Government hierarchy where power is most signifi­
cantly concentrated and the potential for coercion correspondingly great.
Particularly where only criminal penalties were provided rather than pro­
vision made for discharge or removal of an offending official, policy
reasons for prohibiting such abuses of power by the President as much as
by any other Government official are clearly present.
   A number of arguments based on the language of § 602 and certain state­
ments contained in the legislative history of the Pendleton Act might be
cited in support of the view that the President does not come within the
class of persons mentioned in that provision. However, the better view,
in our judgment, is that the President does, indeed, fall within the terms
of that provision.

                           III. Discharge of Official Duties

   Notwithstanding the application of § 603 to rooms reserved for the use


(Continued)

         However anxious I may be in common with those around me to reach legitimate civil-
      service reform, I shall not throw myself in the path of the Constitution to do it. If the
      officer who controls the executive power of this Government has the right under the Con­
      stitution to remove, it would be a most serious question if an issue should be made be­
      tween the inferior employe and that high official as to the causes of removal * * *.
      See, e.g., 13 C o n g . Re c . 5331 (1882) (Senator Conger); id. at 5339 (Senator Hale). See
also, id. at 4859 (Representative Kasson) (assuming that President was covered by proposed
amendment referring to “ any Executive officer or employee of the United States” ).
   24 14 C ong. Rec. 636 (1882) (Senator Hawley). But see, id. at 641 (Senator Sherman)
(describing a proposed amendment framed in terms of “ executive officers” as embracing
“ every employe of the Government, from postmasters down * * *” but apparently doing
so with the intent to show that such persons were within the scope of the amendment, not
that others were excluded therefrom).

                                               38
of the President generally, an issue is nevertheless presented whether
rooms in the White House are “ occupied in the discharge of official
duties.”
   Significantly, the statute is not framed in terms of property owned or
held by the United States; it rather adopts a functional test, focusing on
areas used by Federal personnel while they are conducting the Govern­
ment’s business.25 At the same time, however, no indication is given
whether the word “ occupied” is intended to refer only to those areas in ac­
tual use, to those areas within the zone of normal use, or both.
   The legislative history specifically addressing the meaning of this phrase
is limited. “ Public buildings” were regarded as within the scope of the
statute;26 privately held residences such as lodging houses were n o t.27 More
insight can, however, be gained by consideration of the overall statutory
scheme.
   The four companion provisions passed in 1883 constitute a carefully
crafted system of overlapping prohibitions designed to eliminate the abusive
practice of political assessments. The enactment was intended (1) to elimi­
nate pressures for political contributions relating to Federal employment
both on and off the job (by banning solicitation and receipt of contribu­
tions and gifts between Federal officers and employees—18 U.S.C. §§ 602
and 607), and (2) to make unlawful all political pressures on the job (by
banning solicitation on the job site by any person for any political purpose
or intimidation with regard to job tenure, rank or compensation— 18
U.S.C. § 603 and 606).2“ In order to accomplish the latter purpose, § 603
went beyond a prohibition of actual physical disruption of the work proc­
ess,2’ and beyond a less all-encompassing bar on solicitation of Federal
employees themselves30 to prohibit any sort of solicitation or receipt on
work premises by or from any person. It sought, in effect, to create for
Federal workers a neutral job site free from political solicitation.
   This arrangement has dual significance. It is apparent that Congress


   ” Congress’ action in adopting § 603 was characterized as an exercise o f its power to con­
trol Government property in a business rather than in a political sense. See 14 C o n g . R e c .
623 (1882) (Senator Coke); id. at 669 (Senator Edmunds).
   “ See, id. at 625 (Senator Williams); id. at 636 (Senator Hawley); id. at 640, 670 (Senator
Jones).
   17 See, id. at 622 (Senator Jones).
   !1 Senator Harrison described the proposed scheme as an attempt to “ remove from all
those in the official service of the United States any other influence or control in their giving
than that which may operate upon a private individual.” Id. at 639.
   ” See, e.g., United States v. Thayer, 209 U.S. 39, 42 (1908) “ It appears to us no more open
to doubt that the statute prohibits solicitation by written as well as spoken words * * *. The
purpose is wider than that of a notice prohibiting book peddling in a building. It is not, even
primarily, to save employes from interruption or annoyance in their business. It is to check a
political abuse * *
   )0 See 14 C o n g . R e c . 638 (1882) (Senator Hawley) (“ no human being could, inside of
Uncle Sam’s buildings or grounds, solicit in any way anybody for a single cent” ). See also
note 7, supra, discussing the 1948 and 1951 amendments which altered the scope of § 603 in
this regard.

                                              39
intended § 603 to serve as a mechanism that would remove all possibility
o f political solicitations being addressed to Federal employees during the
course of their employment. It therefore follows that Federal premises
should be regarded as “ occupied” both where at a particular time an
employee is actually engaged in work in a particular area and, more
generally, where a group of employees routinely utilize larger areas in the
course of their regularly assigned responsibilities.31 Similarly, in order for
the statutory bar to be effective, it seems only reasonable that, along with
actual office or work space, common areas such as cafeterias and rest
rooms provided on the Federal premises for use during short breaks from
the performance of official duties should be seen to fall within the terms of
the statute.32 Finally, it is clear that the mere subjective intent that a par­
ticular conversation or transaction conducted on Federal premises be re­
garded as private cannot have the effect of taking an area in which it oc­
curs outside the zone of “ occupation] in the discharge of official duties.”
   At the same time, it is apparent that in developing this statutory scheme,
Congress intended to distinguish between Federal employees’ public and
private lives. A significant portion of the Senate debate on the political as­
sessment portion of the Pendleton Act and related companion legislation
was devoted to proposals to extend § 603 and § 606 to cover employee con­
tributions for any political purpose which might be made outside the job
site anywhere in the District of Columbia, or in other enclaves within exclu­
sive Federal jurisdiction,33 and to bar any solicitation sent through the mails
to any Federal officer for any political purpose.34 These proposals,


    51 There is at least one suggestion in the legislative history of § 603 that solicitation during a
private meeting with a clerk not engaged in official duties at a time when all other clerks nor­
mally occupying a public building had left for the day would not fall within the scope of the
statute. See 14 C ong . Re c . 669 (1882) (Senator Morgan). In citing this example the speaker
apparently assumed that the clerk’s office was neither actually occupied in the discharge of
official duties nor included in an area more generally being utilized by Government
employees acting in the course of their employment. Depending on the circumstances,
however, reliance on this example may no longer be warranted, for even where an individual
employee is not himself engaged in official business, some substantial portion o f the premises
in which an after-hours meeting might take place may in instances be “ occupied in the
discharge of official duties” by security guards or maintenance and cleaning personnel. While
it might still be contended that an after-hours meeting in a part of a public building not
generally patrolled by security guards or occupied by cleaning personnel would not fall
within the terms of the statute, at least where the employee who has arranged the meeting is
not actually engaged in the performance of official duties, and while other statements in the
course of legislative debate and judicial decision may suggest a contrary result, see notes 5
and 30, supra, we need not reach that question here.
   12 Such areas are, for example, regarded as occupied in the discharge of official duties for
purposes of the workers’ compensation laws. See, e.g., 82 Am. Jur. 2d, W orkmen’s Com­
pensation §§ 271-272, at 57-59 (1976).
   11 See 14 C o n g . R e c . 621-630 (1882) (Slater amendment prohibiting solicitation or receipt
for any political purpose); id. at 639-642 (Vest amendment similar to Slater amendment);
id. at 644 (George amendment broadening § 603 to include “ the District of Columbia, or any
room or building occupied * * *” ); id. at 666-667 (Beck substitute prohibiting any contri­
bution for any political purpose); id. at 667-670 (Morgan amendment prohibiting contribu­
tion for political purpose to Senators, Representatives, or Delegates or any person within the
exclusive jurisdiction o f the United States).
   !< Id. at 650 (George amendment); id. at 670 (Groome amendment).

                                                40
however, were not accepted, and the initial distinction between on-the-job
and off-the-job restrictions was carefully preserved. Although the debate
on proposed amendments was not specifically couched in First Amend­
ment terms, the Supreme Court in United States v. Thayer, supra, at 42,
observed that “ [t]he limits of the Act, presumably, were due to what was
considered the reasonable and possibly the constitutional freedom of
citizens, whether officeholders or not, when in private life * * *.’’35 in
keeping with the provision’s plain language and this evidence of congres­
sional intent to distinguish between Federal employees’ public and private
lives, it therefore seems appropriate to interpret the phrase “ in the
discharge of official duties” as limiting solicitation in premises held or
used by Federal personnel, but only to the extent that their presence there
is work-related.
   Thus, a distinctly different case is presented where certain premises are
held by the Federal Government for the purpose of a personal residence
rather than as a business office or other similar work site. There is, of
course, a connection between the occupancy of such premises and the
status of an individual, such as the President, as a Federal officer. If an
area is specifically designated to serve at all times purely as a private
residence, however, it can hardly be said to be occupied “ in the discharge
of official duties.” Instead, it represents a haven, akin to the private lodg­
ing mentioned in the course of congressional debate on § 603, to which
that provision was not intended to apply. Such a distinction was recog­
nized in the Criminal Division’s 1978 determination that private residences
of Foreign Service employees that are either owned or rented by the U.S.
Government, and schools, commissaries, recreational facilities, and the
like that are operated by employee associations with governmental finan­
cial assistance do not fall within the terms of § 603.36 Areas within the
discrete private residence area included in the White House mansion,
although not physically detached from areas formally given over to offi­
cial office space or to areas used for ceremonial functions, may therefore
reasonably be seen to fall outside the reach of the statute.37 Areas rou­
tinely used in connection with the discharge of official duties by persons



   “ This statement was made in the course of a discussion in which the Court dismissed
defendant’s argument that the Senate’s rejection of the Groome amendment (which would
have prohibited all mail solicitations of Federal employees for political purposes) evidenced
an intention not to treat any mail solicitation as within the scope of § 603. See also, Ex parte
Curtis, 106 U.S. 371 (1882), upholding the 1876 act’s narrow limitation on solicitation of
Government employees by Government officials while not prohibiting all political
contributions.
   ’• Letter from Benjamin R. Civiletti, Assistant Attorney General, Criminal Division, to
K.E. Malmborg, Assistant Legal Advisor for Administration, Department o f State
(March 17, 1978).
   *’ Although the private residence area may be serviced by Government personnel who pro­
vide certain sorts of personal, maintenance, or security services, we do not believe that their
presence would convert an area that is otherwise a private residence into one occupied “ in the
discharge of official duties.”

                                              41
 other than the President’s family (e.g., the White House mess) would not,
 however, be similarly excluded.
    A more difficult question is posed with regard to political solicitations
occurring in rooms which are not located within the purely private residen­
tial portion of the White House and which may be used either for personal
 functions by the President and his family or for official business. As noted
above, rooms ancillary to offices or other such work space which are used
by employees in connection with their work would ordinarily be regarded
as falling within the terms of § 603. In most cases, therefore, it would be
appropriate to treat both areas actually being used in the discharge of of­
 ficial duties and those more than occasionally used for such purposes as
within the zone of occupation for purposes of § 603. This application of
the statute gives effect to Congress’ intent that no haven be available on
Federal premises from which political solicitations could be addressed to
Government workers acting in the discharge of their official duties.
    An attempt might similarly be made generally to classify areas within
the mansion portion of the White House outside of the strictly private
family residence as predominantly used for official or personal purposes.
On the one hand, rooms on the first floor of the mansion which are used
by the President for official functions, such as the entertainment of
foreign dignitaries and Members of Congress, can in a certain sense be
said to be occupied by the President in the discharge of his official duties
as Head of State and Chief Executive. Participation in ceremonial dinners
and attendance at other gatherings in furtherance of the conduct of the
President’s constitutional duties are ordinarily regarded as essential parts
of the President’s job. Under this approach, therefore, if White House
rooms are normally used for official functions, they would be viewed as
“ occupied in the discharge of official duties” within the terms of 18
U.S.C. § 603, even though they are used for social functions.
    On the other hand, it could be said that the President’s role as host, even
during official functions, is a private one akin to that of an individual of­
fering hospitality to his friends and business associates in his own home.
Where the predominant use of a room is for entertainment by a single per­
son serving in such a capacity, it is by nature personal and should be seen
to come within the residence exception previously described. This view
might be bolstered by the common sense perception that where a room is
utilized for purposes of entertainment of this sort there can be no doubt
that it represents a departure from the more traditional work site Congress
intended by the enactment of § 603 to protect from politicization. The
clear purpose of Congress in protecting Federal employees from political
pressure in connection with their jobs would not seem reasonably to ex­
tend to controlling conduct or persons attending such gatherings which do
not in most cases involve significant numbers of Federal employees and
which, although in one sense “ official,” do not involve what is generally
recorded as the transaction of the Government’s “ business.”
   Given the quite peculiar nature of the White House and the unique

                                      42
responsibilities of the Presidency, it is our view that a third approach is
more appropriate. Necessarily some rooms in the White House may serve
in turn as space adjunct to the private residence area and as space adjunct
to the areas used for business or ceremonial purposes. Such rooms cannot
be properly classified as either “ personal” or “ official” on any perma­
nent basis. The historical fact is that a single set of rooms has been made
available and has been utilized by this and past Presidents, at times in a
personal caspacity, and at times for official purposes. Even though such
rooms are sui generis and cannot reasonably be classified on a permanent
basis as fundamentally residential or nonresidential in character, the
reasoning described above regarding the application of § 603 would never­
theless apply. We see no reason why the exemption for private residential
space discussed previously should not apply to a room that assumes that
character only on a part-time or temporary basis when used for a personal
or political gathering. In order, however, for Congress’ intent that the bar
created by § 603 effectively prohibit any sort of political solicitation dur­
ing the course of Federal employment, more than a subjective intent to use
such a room for private purposes is necessary. If it is to be said with any
certainty that actions on premises that might either be regarded as
occupied for official or for private purposes do not fall within the scope of
§ 603, evidence of some sort of objective advance determination concern­
ing the nature of their use would in most cases be required. Information
regarding past practice with respect to particular rooms, arrangements for
reservation and use of such areas, and handling of attendant costs for
budgetary and accounting purposes may prove helpful in this regard.
Budgetary considerations may be particularly significant, for where the
President has determined that a room has been used for official purposes
so as to warrant coverage of costs with public funds it would seem that he
has implicitly recognized that such a meeting was conducted in the
discharge of official duties.
   In our judgment, consideration of these criteria as they apply to the
facts as we understand them suggests that the August 10 meeting probably
falls outside the scope of § 603. We are informed that according to the
Federal Bureau of investigation (FBI) report the Family Dining Room has
in the past generally been used for official occasions involving a small
number of guests where use of the State Dining Room would be inappro­
priate. While a separate private family dining room has, since 1961, ex­
isted on the second floor of the White House in the President’s personal
residence, we understand that the Family Dining Room has on occasion
been used by President Carter for purely personal purposes: although
predominantly used for official functions, it evidently has not been ex­
clusively so. It also appears that the meeting was not expressly scheduled
by the Presidential Diarist, a factor that while not providing objective
evidence that the meeting in advance was regarded as a private function, at
least suggests that it was not regarded as formal official function. Finally,
and most significantly, the FBI report indicates that the costs of the

                                     43
meeting were absorbed by the Democratic National Committee, clear
evidence that it was not regarded as an official function. Although further
information on past practices would undoubtedly prove helpful in con­
firming this tentative view, we believe that the private residence exception
implicit in § 603’s reference to occupation “ in the discharge of official
duties” would properly be seen to apply in this case.

                          IV. Target of Solicitation
   A third question not expressly raised in your November memorandum
should also be noted in light of the facts here presented: whether an of­
fense is stated under § 603 even if the target of an alleged solicitation is not
a Federal officer or employee. Compelling arguments can be marshalled
on either side of this issue.
   The legislative history discussed above indicates that Congress’ purpose
in enacting § 603 was to protect Federal officers and employees from on-
the-job solicitations. The statute, however, is not on its face limited to
Federal officials. The wider sweep of the provision, banning all solicita­
tions on Federal premises, including those involving two private citizens,
could be seen as an attempt by Congress to insure the integrity of Govern­
ment property. It might also be explained as an effort to remove even in­
direct pressure on Government employees resulting from the presence of
solicitors on the premises. Neither rationale figures prominently in the
congressional debate, however. It might then be concluded that § 603
should only be applied where its central purpose of protecting Federal
employees would be served. Under this interpretation, the solicitation of a
private citizen by a Federal officer or employee would not constitute an of­
fense chargeable under the statute.
   The opposing view that solicitations of both Federal personnel and
private citizens fall within the scope of § 603 finds support in the un­
qualified statutory language. This sweeping language is in marked contrast
to § 603’s companion provisions, 18 U.S.C. §§ 602, 606, and 607, which
expressly require that the person solicited be a Federal employee. It is
therefore reasonable to assume that the choice not similarly to limit § 603
was a deliberate one. Moreover, it is noteworthy that, as previously
discussed,38 § 603 was amended in 1948 to prohibit solicitation “ for any
political purpose from any such person [i.e., “ any person mentioned in
section 602” of title 18],” but was changed once again in 1951 to delete the
added language. The justification for the initial change was to clarify that
political activities involving State employees were not to be encompassed
by this provision simply because Federal agencies were located in State
buildings. The later change returned the section to its original form in
what appeared to be a decision that its scope not be so limited. Congress’
determination that repeal of the 1948 amendment was necessary suggests


  ’• See note 7, supra.

                                      44
 that the 1948 change had either erroneously gone too far in its attempt to
 clarify existing law by narrowing the class of potential solicitation targets,
or that Congress intended to broaden the application of § 603 to include
 more than those persons mentioned in § 602. In either event, this recent
 history of congressional amendment can be said to confirm the view that
 solicitations of private citizens fall within the scope of § 603.
    Issue was joined with regard to these competing interpretations of § 603
 in 1974 when the view that solicitations of private persons were not in­
cluded within the scope of this provision was advocated by the Watergate
 Special Prosecutor’s office. The contrary view—that § 603 was applicable
 regardless of the status of the person solicited—was voiced by the
Criminal Division. In early 1975 the Office of Legal Counsel adopted the
view of the Criminal Division, and the Office of Legislative Affairs has
 recently reaffirmed that position in letters to Senators Cannon and Hat­
 field, dated October 21, 1977 and February 24, 1978, respectively, which
summarized the Department’s position with regard to the application of
 § 603 and related statutes. Although this question of statutory interpreta­
tion is a close one, we need not reexamine it here in light of our determina­
tion in Part III above that, on the facts presented, the Family Dining
 Room was being used for private purposes rather than in the discharge of
official duties within the terms of § 603.
    In applying § 603 of title 18 to activities in the White House involving
the President, two key questions are posed: (1) whether a room in the
White House reserved for the President is a room “ occupied * * * by
any person mentioned in section 602 [of title 18];” and (2) whether a room
such as the Family Dining Room is one “ occupied in the discharge o f of­
ficial duties.” Based on our examination of the pertinent legislative
history, we believe that the President is included within the terms of § 602
and that rooms occupied by the President in the discharge of official
duties are therefore encompassed by the prohibition on solicitation found
in § 603. A distinct question is raised, however, as to whether rooms in the
White House residence area that are predominantly used for purposes of
entertainment, including entertainment for official purposes, are similarly
included within the scope of § 603. The issue is a difficult one; however,
we believe that not only rooms in the private residence portion of the
White House but also rooms used for personal entertaining where there is
a history of such use and where, as in this case, the cost of such use is not
charged against an account appropriating funds for official functions,
should not be regarded as an area “ occupied in the discharge of official
duties” for purposes of § 603.
    A third question is also raised under the facts as we understand them:
whether solicitation of a private person rather than a Federal officer or
employee was intended to fall within the scope of the statute. We have
summarized the competing views on this issue, including the Department’s
past position that solicitations of private persons are offenses within the
terms of § 603. We have not, however, had to reexamine this position in

                                     45
light of our view that the events alleged did not occur in a room “ occupied
in the discharge of official duties.”
   Finally, we should note a critical threshold issue which we have not here
addressed: whether a “ solicitation” within the terms of the statute in fact
occurred. The limited facts contained in the FBI report suggest that an ex­
press request for contributions may not have been made; the problem of
what may constitute a solicitation is therefore raised. A particularly nar­
row construction of this term may be appropriate where First Amendment
interests are at stake; however, a further investigation of the facts would
be necessary before any definite judgment on this point could be reached.
   John Harmon has asked that you be advised that although I am signing
this memorandum in his absence, members of our staff and I have dis­
cussed this matter with him and the views here expressed are his.

                                  Larry A. H am m ond
                           Acting Assistant Attorney General
                                               Office o f Legal Counsel




                                    46
          APPENDIX
          UNITED STATES COURT OF APPEALS
          FOR THE
          DISTRICT OF COLUMBIA CIRCUIT
          SPECIAL PROSECUTOR DIVISION

          Filed: February 1, 1979—10:33 p.m.—George A.
          Fisher, Clerk

          In Re Report of the Attorney General
          Pursuant to 28 U.S.C. § 592(b),                      :
          No. 79-2                                             :


          MOTION OF THE ATTORNEY GENERAL FOR
          LEAVE TO DISCLOSE REPORT PURSUANT
          TO 28 U.S.C. 592(d)(2)

   Pursuant to 28 U.S.C. § 592(d)(2), I hereby seek leave from the Division
of the Court for permission to disclose the “ Report of the Attorney
General Pursuant to 28 U.S.C. § 592(b),” No. 79-2 filed in this Court on
February 1, 1979. This report concerns a preliminary investigation of an
allegation involving the President under the special prosecutor provisions
of the Ethics in Government Act of 1978, 28 U.S.C. § 591. Moreover, the
circumstances of the White House luncheon on August 10, 1978 have
already been the subject of a new article, and continued public comment is
foreseeable. In these circumstances, I believe it is in the public interest for
the Court to grant leave to me to make public this memorandum as pro­
vided in 28 U.S.C. § 592(d)(2).

                                Respectfully submitted,


                                   G r iffin B. Be l l
                        Attorney General o f the United States

                                     47
          UNITED STATES COURT OF APPEALS
          FOR THE
          DISTRICT OF COLUMBIA CIRCUIT
          SPECIAL PROSECUTOR DIVISION

79-2      REPORT OF THE ATTORNEY GENERAL
          PURSUANT TO 28 U.S.C. § 592(b)
          SUBJECTS: PRESIDENT JIMMY CARTER
                    VICE PRESIDENT
                      WALTER MONDALE
                    DEPUTY ASSISTANT TO
                    THE PRESIDENT FOR
                    POLITICAL LIAISON
                      JOEL MCCLEARY

   In accordance with Section 592(b) o f Title 28, United States Code, as
added by the Ethics in Governm ent Act o f 1978, Public Law 95-521, I,
Griffin B. Bell, A ttorney General o f the United States make the following
report concerning the receipt by the Departm ent o f Justice o f information
regarding alleged criminal violations by the President; the Vice President;
and the Deputy Assistant to the President for Political Liaison, Joel
McCleary.
   1.    Allegation. On November 3, 1978, the Federal Bureau o f Investiga­
tion received an allegation from an inform ant that on August 10, 1978, the
President and Vice President had attended a luncheon in the White House
to which were invited approximately 20 prominent business people who
had contributed money on past occasions to the Democratic Party. The
purpose o f the luncheon was allegedly to apprise these former contributors
that the Democratic Party had a remaining $1:5 million debt and that their
contributions were needed in order to eliminate the debt. According to the
source, solicitation or receipt o f funds might have occurred at the
luncheon in violation o f 18 U .S.C . § 603.
   The inform ant said that further inform ation would appear in New York
magazine during the m onth o f November. On November 13, 1978, a two
page article was published in the magazine stating that an unpublicized
White House luncheon had been held on August 10, 1978, and that,

                                   48
although “ [t]here doesn’t appear to have been any . . . solicitation by
any government official at the luncheon session,” contributions totaling
$100,000 and $25,000 respectively were recorded on reports filed with the
Federal Election Commission as having been received by the Democratic
National Committee on the day o f the luncheon from individuals iden­
tified as having attended. A copy o f the New York magazine article is at­
tached as an appendix hereto.
   2. Statute Involved. 18 U.S.C. § 603 prohibits the solicitation or receipt
o f political contributions in any area occupied by any person described in
18 U.S.C. § 602 in the conduct o f official duties.1 18 U .S.C . § 603 was
originally enacted in 1883 as part o f the Pendleton Civil Service Act. There
are only four known criminal prosecutions under Section 603, and only
one in the last seventy years. United States v. Newton, 20 D.C. (9 Mackey)
226 (1891); United States v. Thayer, 154 F. 508 (N.D. Tex. 1907), rev’d,
209 U.S. 39 (1908); United States v. Smith, 163 F. 926 (M .D. Ala. 1908);
United States v. Burleson, 127 F. Supp. 400 (E.D. Tenn. 1954).
   3. Investigation. Because the allegation and magazine article indicated
the possibility that 18 U.S.C. § 603 might have been violated, the D epart­
ment o f Justice, pursuant to 28 U .S.C . § 592(a), conducted a preliminary
investigation o f the matter. Through interviews conducted by the Federal
Bureau o f Investigation, the following information was developed:
         a) A luncheon was held in the White House on August 10,
      1978, attended by 11 business people, 2 union officials, several
      Democratic National Committee officers and White House staff,
      Senator Kennedy, President Carter, and, for a brief time, Mrs.
      C arter.2



  1 18 U.S.C. § 603 reads:
        W hoever, in any room or building occupied in the discharge o f official duties by any
     person mentioned in section 602 o f this title, or in any navy yard, fort, or arsenal,
     solicits or receives any contribution o f money or other thing o f value for any political
     purpose, shall be fined not m ore than $5,000 o r imprisoned not m ore than three years,
    or both.
18 U.S.C. § 602, mentioned in Section 603, reads:
        W hoever, being a Senator or Representative in, or Delegate or Resident Com mis­
     sioner to, or a candidate for Congress, or individual elected as, Senator, Representative,
     Delegate, or Resident Commissioner, or an officer or employee o f the United States or
     any departm ent or agency thereof, or a person receiving any salary or com pensation for
     services from money derived from the Treasury o f the United States, directly or indi­
     rectly solicits, receives, or is in any manner concerned in soliciting or receiving any
     assessment, subscription, or contribution for any political purpose whatever, from any
     other such officer, employee, or person, shall be fined not more than $5,000 or im­
     prisoned not more than three years or both.
  2 According to W hite House records, the following individuals attended the luncheon: The
President; John Amos, American Family Life Insurance Com pany, Colum bus, Georgia; S.
Harrison Dogole, Chief Executive Officer, Globe Security Systems, Inc., Philadelphia,
Pennsylvania; Arm and Ham mer, Chairm an and C hief Executive Officer, Occidental
Petroleum C orporation, Los Angeles, California; Mrs. Arm and Ham m er; Morris D. Jaffe,
Builder and Developer, San A ntonio, Texas; Edward M. Kennedy, Senator (Massachusetts);
                                                                                  (Continued)

                                             49
         b) The luncheon was held in a small room known as the
      Family Dining Room on the first floor o f the Executive Mansion,
      behind the State Dining Room. The Democratic National Com­
      mittee reimbursed the W hite House $414.87 for the cost o f the
      luncheon.
         c) The luncheon was arranged by John White, Chairman o f the
      Democratic National Committee, and Evan Dobelle, Treasurer of
      the Democratic National Committee. According to White,
      Dobelle, and others, its purpose was to thank the participants for
      their contributions in eliminating the debt o f the Democratic Na­
      tional Committee. W hite stated that each o f the individuals
      invited had either contributed or pledged to contribute prior to
      the luncheon. According to Charles M anatt, Finance Chairman of
      the Democratic National Committee, it was hoped that the lunch­
      eon would induce the business people in attendance to continue
      their support for the Democratic Party.
         d) The President met in the Oval Office with Lew Wasserman,
      Richard O ’Neill, and M anatt for a few minutes prior to the
      luncheon and accompanied them to the Family Dining Room.
         e) The President was present for the first hour o f the luncheon
      and made brief remarks thanking those in attendance for their
      support o f the Democratic Party. Joel McCleary, Deputy Assist­
      ant to the President for Political Liaison, was apparently present
      throughout the luncheon.3 There is no evidence that the Presi­
      dent or McCleary solicited or received any money during the
      luncheon.
         0    Eleven o f the individuals who attended the luncheon, and
      Michael Cardozo, Senior Associate Counsel to the President,
      have been interviewed either in person or telephonically by the


(Continued)
Henry L. Lacayo, Director, National Com m unity Action Projects, UAW , AFL-CIO ,
D etroit, Michigan; John O . McMillian, Chairm an, Chief Executive Officer, President,
Northwest Energy C om pany, Salt Lake City, U tah; Richard J. O ’Neill, Santa A na, Califor­
nia; Jeno F. Palucci, Chairm an, Je n o ’s Incorporated, D uluth, Minnesota; W alter Shoren-
stein. Chairm an o f the Board, Milton-M eyer & Com pany, San Francisco, California; Rose­
mary Tom ich, owner. Siesta Cattle Com pany, C hino, California; Glenn E. W atts, President,
Com m unication W orkers o f Am erica, A FL-CIO , W ashington, D .C .; Lew A. W asserman,
Chairm an o f the Board and C hief Executive Officer, Music Corporation o f America, Los
Angeles, California; Evan S. Dobelle, Treasurer, Democratic National Committee,
W ashington, D .C .; Mrs. Evan Dobelle, C hief o f Protocol, D epartm ent o f State,
W ashington, D .C .; Charles T. M anatt, Partner, M anatt, Phelps, Rothenberg, & Tunney,
Los Angeles, California, and Finance Chairm an, Democratic National Committee; John C.
W hite, Chairm an, Democratic National Com m ittee, W ashington, D .C .; Mrs. John White;
Joel McCleary, Deputy Assistant to the President for Political Liaison, The W hite House,
W ashington, D.C.
   ! McCleary is an individual covered under 28 U .S.C . § 591(b)(3), as an “ individual work­
ing in the Executive Office o f the President and com pensated at a rate not less than the an­
nual rate o f basic pay provided for level IV o f the Executive Schedule under Section 5315 of
Title 5.”

                                             50
     Federal Bureau o f Investigation.4 Each o f these people stated
     that no solicitation o f funds occurred at the luncheon. Several
     witnesses stated that the President confined his remarks to
     thanking the guests for their past support to the Democratic
     Party and their efforts in helping to retire the 1968 Robert Ken­
     nedy and Hubert Humphrey campaign debts. Senator Kennedy
     also spoke on the same theme with respect to his brother. No one
     stated that the President requested or even discussed future con­
     tributions. Several participants stated that they heard no discus­
     sion whatever o f money or future contributions at any time dur­
     ing the luncheon. According to Evan Dobelle, there was one
     short interchange at the luncheon between White and Dobelle
     about the size o f the remaining Party debt, after which an
     unidentified person stated that they should get together to see
     how it could be retired. There is no indication that this inter­
     change involved the President. Several o f those interviewed
     related that after the President left the luncheon, one guest of­
     fered to pledge a contribution but was stopped by another par­
     ticipant who told him such matters could not be discussed at the
     luncheon. According to McCleary, some other people “ talked
     about money” after this incident but he could not recall who.
        g) Two of the three persons present at the Oval Office meeting
     with the President were asked about the discussion and stated
     that no solicitation or receipt o f funds occurred at that meeting.
     There is no evidence to the contrary. Solicitation or receipt of
     funds at that meeting was not part o f the allegation.
        h) Records o f the Federal Election Commission indicated that
     on August 10, 1978, Richard O ’Neill donated $25,000 and Lew
     Wasserman donated $100,000 toward the retirement o f the debt
     o f the Democratic National Committee. According to Evan
     Dobelle, O ’Neill’s contribution was received during a meeting at
     Democratic National Committee headquarters and W asserman’s
     contribution was received at the Madison Hotel. FEC records
     also disclose that on August 22, 1978, Walter Shorenstein
     donated $5,000 and on August 24, 1978, John McMillian
     donated $25,000 toward retirement o f the debt o f the Democratic
     National Committee.
        i) According to Michael Berman, Counsel to the Vice Presi­
     dent, the Vice President was on vacation in Canada from August 7
     to August 13, 1978, and was not present at the luncheon.
  4. Analysis and Conclusions. Section 591(a) o f title 28 o f the United



  4 Those interviewed were Evan Dobelle, Mrs. Evan Dobelle, John W hite, Joel McCleary,
Charles M anatt, Lew W asserman, Glenn W atts, Rosemary Tom ich, John McMillian, A r­
m and Hammer, and Richard O ’Neill.

                                         51
States Code directs the A ttorney General to conduct an investigation upon
receipt o f specific inform ation that any person covered by the Act has
committed a violation o f federal criminal law. Section 592(c)(1) further
directs the A ttorney General to apply to this court for the appointm ent of
a special prosecutor if the A ttorney General, “ upon completion of the
preliminary investigation, finds that the m atter warrants further investiga­
tion or prosecution.”
   As in all other cases, it is the responsibility o f the Attorney General in
instances o f allegations o f criminal conduct against persons covered by the
Act, first, to determ ine the elements o f the offense proscribed by the
criminal statute at issue and, second, to determine whether the alleged
facts would constitute the elements o f the offense. Finally, it is my respon­
sibility, as Attorney General, after a preliminary investigation and after an
analysis o f the evidence o f the elements o f the offense, to determine
whether the case is o f sufficient merit to warrant further investigation or
whether “ the m atter is so unsubstantiated that no further investigation or
prosecution is w arranted.” 28 U .S.C . § 592(b)(1).
   It is my determ ination that there is no evidence in this case o f conduct
by the President, Vice President, or Mr. McCleary which constitutes a
violation o f 18 U .S.C . § 603. The case is without merit.
   The operative facts have been established and no inconsistent evidence
was produced by the investigation. The evidence does not support any
reasonable inference that the President, the Vice President, or Mr. Mc­
Cleary was involved in any request for or delivery o f campaign contribu­
tions at the White House. The Vice President was not in W ashington,
D.C. on August 10, 1978. There is no evidence that the President or Mr.
McCleary, who o f all those attending the luncheon are the only ones
covered by the special prosecutor provision, made any statement or
solicitation or in any other way personally solicited any campaign con­
tributions.5 This is not surprising since, as Mr. McCleary stated, “ the
organizers were not looking for money at the luncheon.” That the organ­
izers had no such intent is corroborated by the action o f one participant
when another guest raised the subject o f pledging a contribution; he inter­
rupted the other guest and cautioned that they were not to discuss contri­
butions at the luncheon.
   The only conduct proscribed in the statute is making a request for
political contributions or receiving delivery o f such contributions in
federal offices. Section 603 is a malum prohibitum statute which makes



   5 For purposes o f this m em orandum , 1 am assuming, without deciding, either that the
W hite House as a whole is a “ building occupied in the discharge o f official duties by [a] per­
son mentioned in section 602,” or that the Family Dining Room is a “ room * * * occupied
in the discharge o f official duties by [a] person m entioned in section 602.” Am ong the several
sub-issues that might have to be addressed in order to decide those questions is that of
whether the President is a “ person m entioned in section 602.” 1 am specifically not deciding
that issue at this time.

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an activity illegal in certain places although it would be legal if conducted
elsewhere. The activity is solicitation or receipt o f political contributions.
   There is no evidence that any money was received in the White House on
August 10, 1978. Likewise, there is no evidence that money was solicited at
the luncheon. While money was solicited or received before or after the
luncheon at places other than the White H ouse,6 there is no evidence that
any solicitation took place in the White House. Indeed, it appears that the
organizers o f the luncheon deliberately structured the affair so as to avoid
any violation o f law. The evidence does support an inference that the
luncheon was intended, at least in part, to entertain former contributors
with the hope or expectation that they would, in the future, continue their
financial support. Such activity, absent a solicitation or receipt on
premises covered by the statute, is not prohibited by Section 603.7
   This reading o f the solicitation provision o f Section 603 is fully sup­
ported by the history o f the statute. There is no case law on this point. This
statute derives from th e -1883 Pendleton Civil Service Act which was de­
signed primarily to eliminate solicitation o f campaign funds from federal
employees at their work place. The goal was to protect these employees
from what were essentially political assessments and to protect the integ­
rity o f federal office space. The activity in question here, a social gathering
o f past and potential contributors who are not federal employees in a
White House dining room , falls outside the concern o f the statute.
   The Department o f Justice is unaware o f any instance in the ninety-six
years since the statute was passed in which a prosecution was undertaken
for the type o f activity here at issue. The only reported prosecutions to in­
dicate the form o f solicitation covered under the statute have involved ex­
plicit written requests for money. See United States v. Newton, supra;
United States v. Thayer, supra; United States v. Smith, supra.
   Moreover, when presented with factual situations involving isolated,
non-egregious incidents o f actual, explicit solicitations or receipts in
federal buildings, the Department has consistently found them without
prosecutive merit under Section 603. Thus, even assuming a much broader
interpretation o f the activity proscribed by Section 603, a prosecution o f
this matter would be legally unsound, unfair, and without merit.



   ‘ There is no allegation or evidence that the President or Mr. McCleary personally solicited
or received a contribution before or after the luncheon on August 10, 1978.
   ’ It is entirely legal under Section 603 to solicit outside a protected area. T herefore, to
determine whether a Section 603 violation occurred one must look to the behavior actually
occurring in the protected area to see if that behavior violated Section 603. Any broader in­
terpretation of Section 603 would m ake it felonious to invite former contributors to State
dinners or other formal functions at the W hite House or Capitol with the unspoken hope that
the former contributors continue their support. The subjective hope or expectation that an
individual might contribute money because he or she was invited to a social function at a
federal building is clearly outside the coverage o f Section 603 unless this hope or expectation
is coupled with an actual solicitation or receipt in a protected area. We are not deciding at
this time what the meaning o f “ solicitation” might be in the context o f other statutes which
are inapplicable here.

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   To contem plate the possibility o f a prosecution on the established facts
o f this case, one would have to conclude that merely by attending the
luncheon or expressing thanks for past contributions, the President or Mr.
McCleary should be seen in the eyes o f the law as actually having made a
solicitation for future contributions and committing a felony. Such a view
is untenable.
   In sum, there is no factual substantiation o f any solicitation or receipt
by the President, the Vice President, or Mr. McCleary at the White House
on August 10, 1978. There is no evidence o f conduct on their part that
would fall within the scope and purpose o f the statute. Moreover, there is
no indication from the preliminary investigation that further investigation
could reasonably be expected to disclose evidence o f a violation which
could warrant prosecution under this statute. The case is without merit.
   Therefore, I hereby notify the C ourt pursuant to 18 U.S.C. § 592(b) that
I find the m atter is so unsubstantiated that no further investigation or
prosecution is warranted, and that no special prosecutor should be
appointed.

                                Respectfully submitted,
                                   G riffin B. Be l l
                        A ttorney General o f the United States




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