__
d_oL_c_
, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
(b) (6)

From:

(OLC)

Sent:

Friday, January 6, 2017 4:54 PM

To:

Koffsky, Daniel L {OLC)

Subje ct:

RE: Draft

Att achments:

Section 3110 to WHO draft 2 -

1.6.17.docx

draftGl9

Hi Dan - I' ve attached my revised
in redline. Let me know what you think of the
organizational changes (and anything else, of course). FYI, though I made some technical edits, I haven't
comprehensively citechecked this version-I plan to do so next week once we' re closer to finalizing a draft.
From: Koffsky, Daniel l (Ole}
Sent: Monday, January 02, 20171:03 PM
To:

! {Ole} •

(b) (6)

Subject: RE: Draft

iG>Q,: I believe that this exercise has established at least one conclusion:

(b) (6)

(b) ( 5)

•

(b) ( 5)

I also added some material here and there, as well as

making some line edits. Particularly with the reordering of the sections, I thought that a red line would be
confusing. Please read this draft, and especially the new material, with a critical eye.
(b) ( 5)

Thanks so much for your work on this matter. And Happy New Year.
-Dan

(b) (6)
From:
· (Ol e}
Sent: Friday, December 23, 2016' 11:22 AM
(b) (6)
To: Koffsky, Daniel L{Ole) •
Subject: Draft

Document 10 : 0.7.13767.10989

 Dncurnent ID: {111 0989

Koffsky, Daniel L (OLC)
From:

Koffsky, Daniel L (OLC)

Sent:

Monday, January 09, 2017 5:03 PM

To:

(b)(6)

i

{OLC)

Subject:

Section 3110 to WHO draft 2 +11 1.6. 17 + dk 1.9.17

Attachments:

Section 3110 to WHO draft 2

ll;Jil;Jlk

-fl 1.6.17 + dk 1.9.17.docx

Thanks for your great work on this draft. I've made some changes in a red line. Please take a look
and see what you think.
--Dan

Document ID: 0.7.13767.10984

 Koffsky, Daniel L (OLC)
From:

Koffsky, Daniel L (OLC)

Sent:

Thursday, January 12, 2017 12:36 PM

To:
Subje ct:
Att achments:

Document ID: 0.7.13767.10124

(b) (6 )

Emailing (b) (5 )

i

{Ole)
(b ) (5)

.pdf

.pdf

 Koffsky, Daniel L (OLC)
From:

Koffsky, Daniel L (OLC)

Sent:

Saturday, January 14, 2017 2:59 PM

To:

llllllltimmll·(OLC)

Subject:

RE: Section 3110 to WHO draft 2 -ti:1.6.17 + dk 1.9.17

Attachments:

Section 3110 to WHO draft 5.docx

IQJM

I realized that, in the material I added,
a couple of other edits. Thanks.
-Dan

(b) (5)

.. I' ve added them and made

From:~
(Ole)
Sent: Friday, January 13, 2017 2:19 PM
To: Koffsky, Daniel L (OLC} •
(b)(6 )
·>
Subject: RE: Section 3110 to WHO draft 2 ~ 1.6.17 + dk 1.9.17
(b) (5)

I accepted those changes and responded to your question about
further changes from me.

- but:there are no

From: Koffsky, Daniel L ( Ole)
Sent: Thursday, January 12, 2017 4:27 PM
(b)(6 )
To:~
: ( Ole) •
Subject: RE: Section 3110 to WHO draft 2

ti 1.6.17 + dk 1.9.17

Sorry, please use this one instead.
From: Koffsky, Daniel L(OLC)
Sent: Thursday, January 12, 2017 2:21 PM
(b)(6 )
To:~
• ( 0 LC} •
Subject: RE: Section 3110 to WHO draft 2 ~ 1.6.17 + dk 1.9.17

Thanks,mJ(;JII Just a couple of changes •••.

From:~
(Ole)
Sent: Thursday, January 12, 201710:30 AM
To: Ko ffsky, Daniel L (OLC} •
(b)(6)
Subject: RE: Section 3110 to WHO draft 2
1.6.17 + dk 1.9.17

ti

Dan - here's a slightly revised version with
on p. 3; the other changes are still in redline as well.
From:~
(Ole)
Sent: Wednesday, January 11, 201710:41 AM
(b)(6)
To: Koff sky, Daniel L {OLC} •
Subject: RE: Section 3110 to WHO draft 2
1.6.17 + dk 1.9.17

ti

Document ID: 0.7.13767.7737

(b) (5)

·. The citation's

 Hi Dan -I've made a few more revisions along the lines we discussed, shown in red line:

•
•

(b) (5)
(b) (5)

•
•

(b) (5)

I've yet to citecheck it {and I might have f urther minor changes when I do), but I thought I'd pass along these
more substantive changes first.
From: Koffsky, Daniel L (OlC)
Sent: Monday, January 09, ~017 5:03 PM
To:
'{OLC) •
(b) (6)
Subject: Section 3110 to WHO draft 2 ~ 1.6.17 + dk 1.9.17

IU>ll!JI

Thanks for your great work on this draft. I've made some changes in a red line. Please take a look
and see what you think.
--Dan

Document ID: 0.7.13767.7737

 Koffsky, Daniel L (OLC)
From:

Koffsky, Daniel L (OLC)

Sent:

Tuesday, January 17, 2017 4:23 PM

To:

llllllll:>Dmlll (0 LC)

Subject:

RE: another thought on 3110

Attachments:

Section 3110 to WHO draft 8.docx

umJ: Just three or fou r stylistic changes, one of which implements a suggestion of yours that I wanted t o
put in before. Let me know if I should go ahead with the next step. Thanks.
-Dan

From:~

(Ole)

Sent: Tuesday, January 17, 2017 3:08 PM
To: Koffsky, Daniel L {Ole} •
(b)(6)
Subject: RE: another t hought on 3110

>

Great!
From : Koffsky, Daniel L ( Ole)
Sent: Tuesday, January 17, 2017 3:07 PM
(b) (6)
To:
: (Ole} •
Subject: RE: another t hought on 3110

• G>lti>II"?

How about '
From:~

(Ole)

Sent: Tuesday, January 17, 2017 3:03 PM
To: Koffsky, Daniel L {OLC} •
(b)(6 )
Subject: RE: another thought on 3110
(b)(5)

That works.

From: Koffsky, Daniel L(OLC)
Sent: Tuesday, January 17, 2017 2:47 PM
(b) (6)
To:~
0 LC} •
Subject: RE: another thought on 3110
1

{

How aboutthis,UJ(;JJ ?

From:~

( Ole)

Sent: Tuesday, January 17, 2017 2:27 PM

---------

Document ID: 0.7.13767.6805

 To: Koffsky, Daniel L(Ole) •
(b)(6 )
Subject: RE: another thought on 3110
Alright-here's another try! (I actually ended up
-see what you think.)

(b) (5)

From: Koffsky, Daniell (Ole)
Sent: Tuesday, January 17, 20171:20 PM
(b) (6)
To:lllllllli>Dalll: (Ole) •
Subject: RE: another thought on 3110

IG>lmJ: Please take a look. Thanks.
-Dan

From:llllllll:>Dalll {Ole)
Sent: Tuesday, January 17, 201711:19 AM
To: Koffsky, Daniel L (Ole) •
(b)(6 )
Subject: RE: another thought on 3110
Here are my further suggested edits. Generally, though, I think this approach works.
From: Koffsky, Daniel l (Ole)
Sent: Tuesday, January 17, 2017 8:36 AM
To:
, (Ole) •
(b)(6)
Subject: RE: another thought on 3110

IG>lmJ: I have to leave the office shortly (returning around noon), so I've rushed somewhat in producing
the redlined and clean versions of the reorganized draft.

(b) (5)

Could you please look this version over, see what you think, and ( using the clean version} create a red line of
your edits? Feel free to insist on any changes you still think we should make. I haven't really had time to
consider everything.
Thanks.
-Dan

From:llllllll:>Dalll {Ole)
Sent: Monday, January 16, 2017 5:15 PM
To: Koffsky, Daniel L (Ole) •
(b)(6 )
Subject: RE: another thought on 3110
Here' s the version I was working on. It goes without saying, but feel free to overrule my resistance to some
of the edits-I fear I'm just being stubborn. Happy to talk about the organizational approach tomorrow as
well.
From: Koffsky, Daniel L(OLC)
Sent: Monday, January 16, 2017 4:27 PM
(b) (6)
To:lllllllli>Dalll: (Ole) •
Subject: RE: another thought on 3110

Document

ID: 0.7.13767.6805

 lt;JIGI)!:

I think it would be great to get your r evised draft, and I can use that one to produce the alternative
version. Thanks.
--Dan

(b) (6 )
From:
(Ol C)
Sent: Monday, January 16, 2017 4:25 PM
(b)(6 )
To: Koffsky, Daniel L (OLC} •
Subject: RE: another thought on 3110
Hi Dan - actually, I' m pretty close to sending you a revised draft based on your revisions, so I' ll probably still
do that. But I'm not wedded to particular organizational approaches, and what you described j ust now also
sounds good.
From: Koffsky, Daniel L ( OLC)
Sent: Monday, January 16, 2017 4:22 PM
To:
' {OLC} •
(b) (6 )
Subj ect: another thought on 3110
(b) (5)

--Dan

Document ID: 0.7.13767.6805

 Koffsky, Da niel L (OLC)
From:

Koffsky, Daniel L (OLC)

Sent:

Tuesday, January 17, 2017 5:23 PM

To:

Gannon, Curtis {OSG)

Subje ct:

Draft

Att achments:

Section 3110 to WHO draft 9.docx

Curtis: I' m attaching the current draft of an opinion concluding that the President's special hiring authority
under 3 U.S.C. 105(a} enables him to appoint a relative to a position in the White House Office,
(b) (5)
notwithstanding the anti-nepotism law (5 U.S.C. 3110}. The opinion

A few other points to note:
1.

2.

3.

4.
--Dan

Document ID: 0.7.13767.35602

(b) (5)

(b)(5)

(b)(5)

(b)(5)

 ___
d_oL_c_
, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
From:

(b)(6)

(OLC)

Sent:

Thursday, January 19, 2017 2:42 PM

To:

Koffsky, Daniel L {Ole)

Subje ct:

Revised section 3110 opinion

Att achments:

Section 3110 to WHO opinion 1.19.17.docx

Dan - this version has changes based on Curtis's feedback in redline, along with some others I happened to
make. I haven't done the citecheck yet (and will probably have more edits atthat point), but I figured I' d let
you see these changes before moving forward.

Document ID: 0.7.13767.6802

 __
d_oL_c_
, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
From:

(b)(6)

!

(OLC}

To:

Thursday, January l9, 201-7 3:02 PM
(b)(6) . (O LC}

Subject:

some OLC materials

Att achments:

CPSI Memo.pdf; Cramton Memo.pdf; Harmon Memo to AG {Mar. 23 1977).pdf;
Mental Health Commission Memos {Feb. 1977).pdf; White House Aide Memo +
cover (Mar. 15 1977).pdf; Nepotism090918 FINAL v.3.doc

Sent:

The "Nepotism090918 FINAL" is the Barron opinion from ISYS-it looks identical to the signed version, but
the Word doc is easier to read.

Document ID: 0.7.13767.6796

 · : --•-

U.S. Depar(}it of Justice
Office of Legal Counsel

RBS:dd
Shanks
Office of the
Deputy Assistant Attorney General

Washington, D.C. 20.530

2 8 FEB 1983

File
1.-Sadol
Retrieval

MEMORANDUM TO DAVID B. WALLER
SENIOR ASSOCIATE COUNSEL TO THE PRESIDENT
Re:

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Appointment of Member of President's
Family.to Presidental Advisory
Committee on Private Sector Initiatives

Attached, as we discussed, is a memorandum dated
February 18, 1977,, prepared by this Office concerning
whether the federal nepotism statute, 5 u.s.c. § 3110,
prevented Mrs. Carter from being appointed to the President's
Comm_ission on Mental Health, a federal adviso.ry commission.
established pursuant to Executive Order No. 119 7,3 of
February 17, 1977, 42 Fed. Reg. 10677 (February 23, 197,7).
The memorandum concluded that Mrs. Carter could not serve
actively on the Commission, whether or not she received compensation for hei: services, although -she could serve in an
"honorary" capacity.
Also attached is a Memorandum for the Attorney
General dated March 23, 1977, located subsequent to our
telephone conversations, which addresses the question whether
President. Carter's son could volunteer his .services as ~n
assistant to a regular member of the White House staff. This
memorandum referred to the ·F ebruary 18 memorandum in concluding that he could not, •despite the fact. that .he would not be
coml_)ensated. In support of this conclusion, it at.t ached an
undated Memorandum for the Attorney General entitled "Emp,1.oyment of relatives who will serve without compensati9n."
As we discus$ed, time c9nstraints have not
permitted us to reexamine the legal analysis and conclusions
r~ached in these memoranda_. We did examine the EXcecutive
Order, establishing the President's Commission on Mental
Health, however, to determine whether that Commission
differed significantly from the proposed Commission on
Private Sector Initiatives. Our brief review convinces us
that the two are not sufficiently different to provide a
basis for distinguishing between them with respect to the
applicability of section 3110.

I.
I

Document ID: 0.7.13767.6796-000001

.[

 Q
Ba~ed on our discussions, we think the proposal
to have a member of tha President's family serve actively
on the Commission on Pr[vate Sector Initiatives raises
virtually the same, problems raised by Mrs. Carter's proposed service on the President's Commission on Mental
Health. Without sJfficient time to reexamine the legal
analysis contained in our earlier memoranda, we must adhere
to the conclusion reached there that the President cannot,
consistently with section 3110, appoint a relative as an
active member of such a Commission, even ir the relative
serves without compensation.

<'il-f--6.~

Robert B. Shanks·
Deputy Assistant Attorney General
Office of Legal Counsel

Enclosure

Document ID: 0.7.13767.6796-000001

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NGVe~~r 14, 1972 ..

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MEHORANDUM

Po&

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THE .H8NOIABti JOHN

OF.AN, Ill -

. Counsel to the J>resident
.

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Applicability t'o President ·c,f ·aestrictton ·. ·
on Employment
..
Relatives·..
·.
.
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of

,
Undet: 5 u.s ..c. 3110, o.o federal officiai (expresel,.y ·
' ·:1ncluding the P.resident) ·may appoint or .employ any of a .
·. _broa~ly defined class of relatives· in. a ueivilim po•ition"
· f.n tbe ageney in which the _a ppointing official is seniag .·
0
" or over which -b s exercises jurudictioa_ of Control •.'-'
A
<.question haa . been r~ised as to whetlier thie 1967 enactment
-would bar, tbe ~reaident from .-a ppoint~g an indtvtdµ~l there•
.in define.d .- ~a .a ~elative to perma.ne~t -or· temporary ~loyment
:~ a member- of· the White Bo~e staff •

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· ·· ·

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of

history
.S U.s.·c. 3110, whteh is.
. ·..
· discussed in more detail.- ·in the ·memraadum .
October 1S •
--,1968, which is enclosed, .·cSoes ·not eont6\ill ·a ·det.ail.ed dis•
:c\le&;lon · of .the applic_abil~ty ot this provision to· the Office
·of the President. ·it · is arguable .· cruat · cbe sectloa is . an .
uncorustitutional' ~estr.tction ou t:he President's sppointi~e
:authority, especially if conat~d to _l~t; bis :dtacretion .
.La appointilig· ~ r s .of h.~ Cabi_n et· ·or other bi.g_b o~ficiala.,
acting under his .co~titut:lonal ·authority to appoint , .
:.•officers of the United States" with or· w1thout Senate . · ..
. confl·r ma~ion. Article II, section 2,._. The laagwage·- ·of
· :5 u.s .c. 3110·, . however, extendl to ~Y appointment to .a ·
· "civilian. posit.ton~• .over.' ~ic:h ·the Preaident ·exerci&es· jur. iadiction or control,, ,Whatever .lts coostJ.tutionality .may ·
·be· a1i applied to an··.appoin~aic ·'by the P.reaideat of: a · relative

: Tbe ·- 14tgf,sl4tive

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.

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Document ID: 0.7.13767.6796-000002

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 to a Cabinet or other high-level position, it seem8 clearly
applicable to subordinate positions on the White House
staff, which fall within tbe category of ninfer1or officers"
subject to Congressional control.
I am enclosing· several memoranda which the Office of
Legal Counsel has prepared on this subject. If, I can ~e
of further assistance, pleaae let me know.

Roger c. Cramton
Assistant Attorney General
Office of Legal Counsel

- 2 -

Document ID: 0.7.13767.6796-000002

 •...

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MAR! 3 197?

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Ellploymsnt of ntlatives
without ccnpensation

mo will

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serve

Foll.atJing oor neet.ing with Bob Lipshutz on March 17, you have
asked for my views as to ~ r 5 u.s.c. § 3110, whicn prohibits
a public official fran awc,inting or etploying a i:elative in a
civilian position in an tJ.ge'l'Cf over mich he has jurisdicition or
o::mtrol, applies in situati<ms in \tbidl the relative will serve
without ocnpmsati~.

'lhis ·questioo was recently presented to the Office of I.ega1. _
Cbunsel. in c:xmnection with the pJ:OpOSed appointnert: of Mrs. carter
to be Chairperson of the camrl.ssion en Mental Health. After mseardliDJ the legislative history of the statute, we oonclu:!ed
that the statute applied to ~ positions am advised by
~ dated Februa:cy 18 against the cx,nteuplated ~intnent
of Mrs. carter.
SUbsequently, a quest.ion was raised as to ~ the President's son oould be given office space and i:,'1p{X)rt services in the
West WinJ of the arlte H0uSe in c:xmnection with his part-tine work
for the Denoccatlc National Ccmnittee. We orally advised
Mr. Lipshutz's office that funds app1'0priated for the White House
Office should not be used for this purp:,se.

Finally, the Offi'oe of legal Counsel was asked whether tha1'e
would be aey legal objection to the President's son volunteering ·
his tine to work as an assistant to a regula1: 11emer of the rbite
House staff. Mr. ·Lipshutz's office specifically xeguestec1 that
the Office of regal Ck>unsel ronsider the points raised in a letter
fl:an the General COUnsel of the Civil Service Carmission to the
Vice .P.resident' s transition staff on Deoe!'lber 29, 1976, whidl ccncludeci that· 5 u.s.c. § 3ll0 does not prohibit the President or
· Vice President fl:an appointing relatives to their personal staffs.
A f t e r ~ the natter, we oonclwed that 5 u.s.c. S 3110
does apply to positions on the President's staff.

~

J

, •••

Document ID: 0.7.13767.6796-000003

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In this connection, a nerorandum prepared by F.d Kneedler of the
staff of the Office of ]sJal Co\msel and sent to Mr. Lipshutz an
·
March lS, 1977, noted that the <lla.intan of tie Civil Service o:mnissi.on inforned the Senate carmi.ttee during hearings on the nepotism
provision in 1967 that hoo it been in effect, the provision "10Uld
have prevented President Roosevelt fl:an eq:p,inting his son as a
civilian aide in the t--alite House. No nember of the cxmnittee dis·puted the Olaixnan on this point. '.Ihis ~ t by tre, head of the
agency dlarged with administering lcMB relating to Federal enploynent
generally is particularly persuasive on the application of the statute ·
to the President's son here, especially in view of the fact that Congress specifically rejected tha Chairman's suggestioo.s to exsrpt
Presidential appointnents fran the prchibition now contained in

5

u.s.c.

§ 3110.

Similarly, we conclw.ed that the argurrent that there would be
oonstitutiooal difficulties in applying the statute to positioos on
the President's staff was not substantial. This was in aecx>r<l with
the ]:X>Sition taken by the Office of legal Cbunsel in a 1972 narorandum, -mich assuned that tha statute ai;plied to the ~te House
staff and found oo oonstituticnal infinnity in its doing so.

At ycm:- request, l have new re-examined the specific issue of
uooatpen5ated p:>Sitions. It is mJ
cx:mclusion that it does.
'.lhe reasons for 1lTf cxmclusion are
discussed in the attached legal mem:>randl;ll\ mich I :reCXJmend that
you fo.rwam to Boo Lipshutz with the attached cover letter.

mether the statute ar:plies to

John M. HarnOn
Acting Assistant Attorney Qmeral
·
Office of Legal Counsel

-2-

Document ID: 0.7.13767.6796-000003

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File

February 18' 1977
MF1~n:u1 FOR roootAs B. mmcl-1

Associate
. Re;

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0:runsel -to the President

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Possible agx>intme."lt of Mrs. carter as
the o:mnission on. Mental Real.th

Olaintan of

.
You .have asJr.ed for our opinion on the question whether the Preeide."\t
· · could appoint Hrs. carter to be Chail:man of a Camdss1on on. Mental Health
.proposed to be established in a _-fort:hoc:m.ng EKecutive Order. _It is our
opinion that he may not. '!he applicable statute is S o.s.c. S 3110, sub-

section (1)) which provides:

•· A public official nay not appoint, enploy, pxarote,
advance, or advocate for app:,inaoont, employirent, promotion, or ~ t , in or to a civilian position in
the agency in ~ he is se%Vi.ng or over vdlii:h he exercises jurisdicition or. o:mtrol any indivi<..~ who is a
relative of the public official. ·-

,

..

'lha definition of the term "public official" in sub$ection (a) (2) ~ l y
includes the President, and a public official's wife is ~ those listed
in the definition of "mlative" in subseation (a) (3). ~ tem ••~CJ
is defined in 5 u.s.c•. § ' 3ll0(a) (1) (A) to include an wExecuti~ agency"

. which in ttml includes any "est.abllshment" in the Executive Branc:::h. See - 5 U.s.c. §S 104, · 105. 'lbe ~ i v e term ~establis1ment" would el.earl~
. CO\ler the Camdssion on M:mtal Health, ~ich w1ll t.e canprised of parson$ \ w~.. wiU be ~ as govei:rutelt eq,loyees (section 7) and be authorized,
thJ:ougll its Chauman, ·to oonduct -hearings and procure independent seJ:Vioes .·
pursuant to 5
§ 3109 (6eci:ions 4 and 7(b)). Seo also 5 CFR 310.101.
'roo?:efore, since the P!:esident "exercises juruidictiori c:xr control" owr the
camdssion; his appointments to that uagency'" axe sguare],.y covered by the

u.s.c.

·tetns of -5

u.s.c.

§ 3110.

\

1 - b ~ , ·the-legislative history. of the -statute soows that the prohibition in 5 u.s.c. S 3110(b) applies whether or not the appointee will
. . ~ v e caq:ensation. ff,O.\~, we do ·not believe that 5 u.s.c. _S 3110(b)
·would prohibit the PJ:eSident frat1 appointing f.Jrs. Carter to an l'looorary
PQSition :r.:elat.ed to the car.mission if .she remained sufficiently 1.e5Wved
fJ:an the <mmission 's official functions.
At.t:acned hereto is a memn-andum
·discussing in JlXll.'8 detail the legal basis for our oonclusions.

_JohnM.Hm:n'on

.

Acting .Assistant Attomey General
_. Office of legal. counsel

Ehclosure

Document ID: 0.7.13767.6796-000004

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Gauf
Kneedler

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John M. Hannon
. Acting Assistant Attorney General

Fehruary __l7, _197?

Office of Legal Counsel

•• 1 ·· _ .

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Edwin s. Kneedler
Attorney-Adviser.

Office of Legal Counsel
Legality of the President's appointing Mrs. Carter
as Chaim.an of the Commission on Mental Health

The apoointment of Mrs. Carter to be Chairman of the
·commission on~Mental Health proposed to be established by
Executive Order would violate 5 u.s.c. § 3110, subsection
(b) .. Jj

..

~

.

1/ ln a memorandum to files dated October 15, 1968~ former
Deputy Assistant Attorney General Richman of this office suggested that 5 U.S.C. § 3110 may not apply to appointments to
titled positions by the President, acting under his constitu~

· tional duty to appoint "officers of the United States." Art.
II, Sec. - 2.

He based this suggestion on the belief that be-

cause of possible constitutional auestions in limiting the
President's power of appointment ~d because Congress was no
doubt aware that President Kennedy had appointed relatives to
high positions, it was unlikely that the provision was intended to reach such appointments without specific mention ..
of this fact in the legislative history. But in fact, the

Kennedy appointments were specifically discussed during the
Senate hearings on the legislation, and the Chairman of the ::
Civil Service Conmission expressed the opinion, with which no
member of the Committee· disagreed, that the provision would · ·

prohibit appointment of a relative to a Cabinet position.
Hearings on Federal Pay Legislation befqre the Senate Committee on Post OffLce and Civil Service, 90th Cong ., 1st Sess.
360, 366 (1967). On the question of legislative intene, then,
the 1968 memorandum appears to be wrong. The possible c:011stitutional ~rgument does not seem substantial in the present
case.

:=.· ·Document ID: 0.7.13767.6796-000004

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The only possible argument that the appointment of .
Mrs·. C.J.rter would be lawful might· be that the statute does ·
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· not apply if the appointee will serve without compensation. 2/· ,~:_:~ ::,/!
The language of the substantive ·prohibition in 5 u.s.c. ·
.-: ; :.-.·~·:·§ 3110(b) · is written 1n broad terms which on their face '·' · ·:• · ,"::.-·~ attach no significance to the matter of compensation. HowT· • . :~. ~-.i.

ever, subsection (e) provides:

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·promoted, or advanced in violation of
thiri section is not· _e ntitled to pay,
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appointed, employed, promoted, or

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It: might be argued that because the sta1:'..1tory remedy for a
, violation is to deny the appointee pay, the statute mu.s·t be
regarded as being directad only to those situations where the

appointee receives compensation.
.
In .a ddition there are several instances in the sparse
. legislative history of the provision where indi'\ridual Members
' of Congress spoke of the provision in the context of compensated positions.. For example, Representative Smith, who in..
troduced the measure on the House .floor as an amendment to a
Federal pay ~ill~ stated that a primary place one would find

_violations was 1n smaller post offices, where postmasters often
refused to hire a pe:rmanent clerk unless their wives were on
the eligibility list and found other ways to "maneuver to hire
their. relatives/' 113 Cong._Rec. 28659 (Oct. 11. 1967). Other
. Membet's . of Congress used words such as 11hire" and "payrolln ·
~1hen speaking of the prohibition, ag.ain suggesting the element
of compensation~ M•; 113 Cong. Rec. 37316 (Dec. 15, 1967);
-~ earina!, supra, at 369, 371-72. However, I do not believe
that the fact that Congress may have been thinking in terms

of compensated services· can have the effect of limiting the
plainly broader reach of the language of the statute itself
absent a clear indication of congressional intent to do so.
That indication is lacking here.

1:,/

Section 7 of the proposed Executive Order provides that i:h.e
Members of the Commission °may" receive compensation for their
services. I assume this would permit ~h's. Carter to serve
without compensation.
.,.

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Indeed, there. are several factors which a£firmatively
suggest that the statute should not be construed to apply
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"nly to situations in whieb the employee will receive com- · · · ' - . /·...~. ·
pell.$ation. First• the Senate Report on. the legislation :J/ ·-....•.:'
describes the present _S U41S.C. _I 3110 in broad terms ~hich <-._. · · .- ,c:·.·:_:·
::ontain no suggestion that only e-ompensated positions are . . ... ..._-·.--: ·.
coversdJt except for a refere~e to S u.s.c.- § lllO(e). 12hicll· · · ·; __·_·;__.·
denies ·pay to a person appoii.1ted in "iolation of the section~ ··. : :::<.:·
s. Rep. No. 801,. 90th Cong.~ 1st Ses-s. 29 (1967). The Civil•:·.:.._ ·-·· .,:...,:. . =:
Service Commission• s deacription of the provision in its sub•
·: ' ··
mission to the Senate Committee, stated that the numendment
pem.tta no. aceptf.ons." Bearings,, supra. at 387. ~/ . §.!!. ·

--·r:;:~.

- -Also, one rationale of focusing on compecs!lted positions
also id. at 359.

·

apparently be that . the statute's purpose is to prevent
the public official from realizing any indirect financial
benefit _in appointing a relative. This purpose makes sense
.if the employee involved is the public official's spouse~ as
in the case of the Postmaster's wife mentioned by Represental-10$.lld

tive Sm.th when he introduced tbe amendment. .B ut the persons
in-eluded in the tefinition of "relativen under the st.atut.e
inelude many persona, $~has first cousins, nephews, nieces>

and .others -whote compell8ation would be unlikely to redound to
the financial benefit of the appointing official..

Thus,. the

prchibition mu,t have a b~oader rationale.

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The HoWie Report does 'not discuss· the provision .involved

here.because it was added as an amendoent

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the Hause floor.

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The exceptions later included in the bill following the_._ · · · ·
t-..estimony of the Chairman of the Civil Service Commission . : •
·only permit nteroporary employment. in the event of emergencies

resulting from natural disasters or similar -unforeseen events
or cireumsUlnces0 and the appointment of veterans ~ho are ... ,
entitled to a preference in appoinb:sents in the civil service,.
· 5 U..s .c. I§ 3110(d) and (e); these obvlou.9ly would not apply

to Mrs. Carter's appointment ..

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The broader rationale ap°pears to be to prevent the
·· • _detriment · to the government y1hen appointments are based on
favoritism -- i.e., familial ties -- rather than merit. For
example, Congressman Smith stated:
· This is bad for morale where it is
practiced. Many of these relatives, in- .
eluding some on congressional payrolls _may do a good job, but the overall in. terest of the Government is against the
practice and those good employees can
get a job in some office on their merits
rather than using relationship as a
leverage. 113 Cong. Rec. 28659.

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The Civil. Service Commission's .submission to the Senate Committee described the provision as a prohibition against favoritism, Hearings; supra, at 387, and the discussion in the
course of the hearings focused on favoritism as such and the
· ._ possible detriment or loss of "efficiency" to the Government
when a family member is appointed. Id. at 359, 365-68, 372.·
Obyiously the injury to the Government .in terms of the reduced
quality of the services it receives is the same whether or not
it pays compensation to the employee ·who is appointed because
of familial ties rather than merit.. 5/
Therefore, I do not
believe that the purposes sought to be furthered by the statute
require or even suggest that its plain language should be construed so as not to apply to employees who receive no compensation~ I have been informally advised by the Office of the
General Counsel at the Civil Service Cpmmission that while
the issue has apparently not arisen in the past, the Commission would construe 5 .U.S.c.· § 3110 to apply even where the
employee receives no compensation.

1,/ Another possible purpose of the section might be to prevent public officials from rewarding their relatives with
appoin.t ments; but such a reward could be in the form of the
prestige of an appointment as well as compensation.
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-_Document ID: 0.7.13767.6796-000004

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It bas .also been suggested that the prohibition may
not apply here because the Commission will be funded out of
appropriations available to the President under the Executive
.. _
Office Appropriations Act of 1977 for nunanticipated Needs,'_'. ·,· .: ~': ··::·: ;.
which may ·be expended for personnel "without regard to any ,-:~ -. -- ·· .:·· ..•,,::
provision of law regulating e mployment and pay of persons in :_.· ,. ·_
::.t

the Government service;•

90 Stat. 968.

believe t..liat the quoted · language makes 5
cable.

However, I do not .

u.s.c.

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This language_was included in the appropriation for the
Executive Office under the heading .:rEreergency Fund for the
President" in the Executive Office Appropriation Act of 1968,
81 Stat. 118 (which was in effect when 5 u.s.e. § 3110 was
enacted) and in prior appropriations act as well. Then, as
now, the separate appropriations available for the White House
Office under the same act contained a: virtually identic_a l provision for obtaining personnel services without regard to laws
, governing employment and pay. 81 Stat. 117; 90 Stat. 966.
Although there is no mention in the legislative history of
5 U.S.C. § 3110 of the effect of the appropriations act language, the application of the prohibition in -the present 5
u.s.c. § 3110 to appointments by the President was fully discussed in the Senate hearings~ In fact, in response to an
inquiry from Senator Yarborough, Chairman Macy of the Civil
Service Commission stated that had it been 1n effect, the
provision would have prevented President Franklin Roosevelt
from appointing his son as a civilian White House aide, a~
the President apparently had done. Hearings, suera, at 366.
Chairman Macy even suggested that the prohibition should be
inapplicable to·· the President in order to maintain his .dis•
cretion in making appointments. M • . Nevertheless, the
Senate Committee chose to amend the House bill expressly to
include t:he President among the "public officials:. covered
by the bill, and the section was enacted in this form. In

view of thi3 legislative history, the language in the appropriation for the White House Office. which merely has been ·
carried forward from prior years, should not be construed tooverride the express prohibition in 5 u.s.c. § 3110. §/

§/

By me1J1.orandum dated November 14, 1972, Assistant Attorney

General Roger Crampton of this office advised the l-lhite House
that 5 u.s.c. § 3110 does apply to appointments to the White
House staff, ·although the appropriations acts were not con-

sidered in the memorandum.
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The result should be no different with respect to the almost
identical. language in 'the appropriation for aunanticipated
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Needs," from which the Conmd.s·s ion will be funded.
For the reasons s·tated, 5 U.s .C.

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3110(b) prohibits. - ·

the President from appointing Mrs. Carter as Chairman or a ·.
member of the proposed Comni.ssion • .
.

.

· · On the other band, although the matter is not wholly . ·.
free from doubt, I do not believe that 5 u.s.c. § 3110 would ;,;•-/:'}~·.prohibit Mrs. Carter from holding an essentially honorary
position, such as Honorary Chairman, related to the Commission's work.

Subsection (b) as enacted prohibits appoint-

ments· to a "civilian position" in an agency over which the
public official has jurisdiction or control • .. The term ·
"civilian position" appears to have been intended to cover
all positions occupied by an nofficern or " employee!I of the
United States under the civil service laws and to exclude
positions in the military ..

~

Hearings; sti2ralt at 363;;;:64,

365 ..

.
For purposes of Title 5 of the United States- Code, an
officer or employee is a person who is {l) appointed in the
civil service by an officer or employee; (2) engaged in the
performance of a Federal function under authority of law;
and (3) subject to the supervision of an officer or employee
-:;bile engaged in the performance of his duties. · 5 U. S .C. ·
§§ 2104 and 2105. Presumably the President's desiocnation of
Mrs . Carter as an Honorary ·chairman of the Commission would
constitute an appointment for purposes of the first of the
factors mentioned above.

However, it -would seem ti'lat Mrs.

Carter•s role as Honorary Chairman could be fashioned in
such a manner tMt she would not necessarily be engag ing in
a Federal function when she lends her prestige:s insights.
and support to the Commission's work. 7/

To accomplish the

l/ It could also be argued that as an Honorary Chairman Mrs.
Carter would not be subject to the supervision of an officer'

as contemplated in the third factor mentioned above. This
argument is of doubtful validity. however, in view of t he
President's authority to appoint an Honorary Chairman and
establish and direct that person's official duties, however
insubstantial they may be.

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required detachment from the Commission's Federal function,. · -.. ,_,..-<.:/:~.-: ..
Mrs. Carter should at least have no formal authority or
: < •. ~~J:.~ ·_ ·
duties relating to the Commission's .work and avoid being . '_/ ·.: ·:.: :/ < the moving force behind its operations -- e.g., in selecting · -c: · · - • ·•
staff, convening meetings, conduct~g hearings;. establishing . · ~ -~- .- ·
policy, or formulating recommendations. This would not,
_
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however, prohibit Mrs. Carter from attending meetings or
hearings (although perhaps she should not do so on a regular. - · ·
basis), submi~ti:ng her id_eas to the Coumission for consitleration, or offering her support and soliciting support from
others for the Commission's work. It is my understanding
that First Ladies have in the past assumed this type of advocate• s · role in connection with Government programs in which
they were especially interested, and it would seem to make

no differen_ce---.here that Mrs. Carter may have an honorary
title that really only serves to highlight her interest.

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------ _J

 U.S. Department of Justice
Office of Legal Counsel
Office of the Assistant Attorney General

Washington, D.C. 20530

September 17, 2009

MEMORANDUM FOR GREGORY B. CRAIG
COUNSEL TO THE PRESIDENT

Re: Application of 5 U.S.C. § 3110 to Two Proposed Appointments by the President to Advisory

Committees
You have asked for our opinion whether section 3110 of title 5, United States Code,

which prohibits a public official from appointing or employing a relative “in or to a civilian

position in the agency . . . over which [the official] exercises jurisdiction or control,” bars the

President from appointing two of his relatives to advisory committees within the Executive

Branch. Specifically, you have asked whether the President may appoint his brother-in-law to

the President’s Council on Physical Fitness and Sports (“Fitness Council” or “Council”) and his
half-sister to the President’s Commission on White House Fellowships (“Fellowships
Commission” or “Commission”). We conclude that section 3110 prohibits both proposed

appointments.

I
The Fitness Council is an advisory committee established by executive order and charged

with advising, and making recommendations to, the Secretary of Health and Human Services and

the President regarding measures to enhance participation in physical activity and sports. See
Exec. Order No. 13265, 67 Fed. Reg. 39,841 (June 6, 2002).1 The Council lacks any authority to

undertake operational activities, and its functions are purely advisory. See Memorandum for

Richard Hauser, Deputy Counsel to the President, from Robert B. Shanks, Deputy Assistant

Attorney General, Office of Legal Counsel, Re: President’s Council on Physical Fitness and

Sports at 5 (Feb. 17, 1984) (“Fitness Council Memo”). Specifically, the Council provides advice

and recommendations through the Secretary to the President regarding the Secretary’s progress

in establishing “a national program to enhance physical activity and sports participation.” Exec.

Order No. 13265, § 1; see id. § 3(a). It also advises the Secretary in her own capacity regarding


“ways to enhance opportunities for participation in physical fitness and sports” and the need for

“enhancement” of the Council’s “programs and educational and promotional materials.” Id.
§ 3(b), (d). In advising the Secretary, the Council also serves as her “liaison to relevant State,

local, and private entities.” Id. § 3(c).
The Council is composed of twenty presidentially appointed members, with a Chair or

Vice Chair designated by the President and an Executive Director appointed by the Secretary.
Id. §§ 2(b), 4(d). Members of the Council serve without compensation, but may receive certain

1

In accordance with subsection 14(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. app. § 14(a)(2)
(2006), the Council was scheduled to terminate on June 6, 2004, but that date has repeatedly been extended by

executive order. The Council’s current termination date is September 30, 2009. See Exec. Order No. 13446,
§ 1(m), 72 Fed. Reg. 56,175 (Sept. 28, 2007).

Document ID: 0.7.13767.6796-000005

 travel expenses. Id. § 4(b). The Secretary is responsible for the Council’s administrative

requirements, “furnish[ing] the Council with necessary staff, supplies, facilities, and other

administrative services” and paying its expenses “from funds available to the Secretary.” Id.
§ 4(c).
The Fellowships Commission, which was also established by executive order, is a

presidential advisory committee charged with “prescrib[ing] such standards and procedures as

may be necessary to enable it to recommend annually a group of outstanding young persons from

among whom the President may select White House Fellows.” Exec. Order No. 11183, § 2(a),

29 Fed. Reg. 13,633 (Oct. 3, 1964), as amended by Exec. Order No. 11648, 37 Fed. Reg. 3,623

(Feb. 16, 1972). “[T] he basic function of the Commission is to provide [these]
recommendations” to the President. Letter for the Honorable Dudley Mecum, II, Assistant

Director for Management Organization and Analysis, Office of Management and Budget, from

Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel at 2 (Apr. 23, 1973)

(“Fellowships Commission Letter”).2 Once the Commission’s “standards and procedures” have

been published, it may accept applications and nominations “for consideration in its

recommendations.” Exec. Order No. 11183, § 2(a). The Commission is composed of “such

outstanding citizens . . . of private endeavor, and the Government service, as the President may


from time to time appoint,” with “[o]ne of the members appointed from private life . . .

designated by the President to serve as Chairman of the Commission.” Id. § 1(a). Members

“serve at the pleasure of the President,” and receive no compensation for their service. Id.
§ 1(b). The Office of Personnel Management (“OPM”) (the successor to the Civil Service

Commission) is responsible for “provid[ing] the Commission with administrative services, staff

support, and travel expenses.” Id. § 4(b).
The Federal Advisory Committee Act (“FACA”) applies to the Fitness Council and the

Fellowships Commission, both of which “were established . . . by the President . . . in the interest

of obtaining advice or recommendations for the President or one or more agencies or officers of

the Federal Government,” and both of which have members who are not full-time or permanent

part-time federal employees or officers. 5 U.S.C. app. § 3(2) (2006); see also Fellowships

Commission Letter at 2-3; Fitness Council Memo at 2. You have informed us that the

President’s brother-in-law and half-sister would, like other members of these sorts of advisory

committees, be appointed to their positions as “special government employees,” who exercise

their duties on a part-time, temporary basis. See 18 U.S.C. § 202 (2006); see also Fitness

Council Memo at 8 n.9 (“[i]n light of their limited service, it is likely that most, if not all, of the

Council members from private life are ‘ special government employees ’”).

2

The Fellowships Commission’s current termination date is September 30, 2009.

13446, § 1(f).

2

Document ID: 0.7.13767.6796-000005

See Exec. Order No.


 II
The operative portion of section 3110 is subsection (b), which provides that “[a] public

official may not appoint, employ, promote, advance, or advocate for appointment, employment,

promotion, or advancement, in or to a civilian position in the agency in which he is serving or

over which he exercises jurisdiction or control any individual who is a relative of the public

official.” 5 U.S.C. § 3110(b) (2006). The statute provides expressly that the President is a

“public official” and that a public official’s brother-in-law and half-sister are his “relative[s]” for

purposes of the prohibition. See id. § 3110(a)(2), (3). We also have little doubt that the

President has “jurisdiction or control” over the Fitness Council and the Fellowships Commission.
See, e.g., Inspector General Legislation, 1 Op. O.L.C. 16, 17 (1977) (“The President’s power of

control extends to the entire executive branch. . . .”). Accordingly, the permissibility of each of

the President’s contemplated appointments turns on whether it constitutes an appointment “to a

civilian position in [an] agency.”
Our inquiry into this question is guided by the substantial precedent from this Office

addressing the scope of the section 3110 prohibition as applied to presidential appointments. In a

November 14, 1972 memorandum, we advised that section 3110 would bar the President from


appointing a relative “to permanent or temporary employment as a member of the White House

staff.” Memorandum for the Honorable John W. Dean, III, Counsel to the President, from Roger

C. Cramton, Assistant Attorney General, Office of Legal Counsel, Re: Applicability to President

of Restriction on Employment of Relatives at 1 (“Cramton Memo”). In a February 18, 1977

memorandum, we advised that section 3110 would also bar the President from appointing the

First Lady to serve, with or without compensation, as Chairperson of the President’s

Commission on Mental Health (“Mental Health Commission”). See Memorandum for Douglas

B. Huron, Associate Counsel to the President, from John M. Harmon, Acting Assistant Attorney

General, Office of Legal Counsel, Re: Possible Appointment of Mrs. Carter as Chairman of the

Commission on Mental Health (“Mental Health Commission Memo”) (referencing attached

Memorandum for John M. Harmon, Acting Assistant Attorney General, Office of Legal Counsel,

from Edwin S. Kneedler, Attorney-Adviser, Office of Legal Counsel, Re: Legality of the

President’s appointing Mrs. Carter as Chairman ofthe Commission on Mental Health (Feb. 17,

1977) (“2/17/77 Kneedler Memo”)). That memorandum further advised that the First Lady

could serve in an “honorary position related to the Commission,” as long as she “remained

sufficiently removed from the Commission’s official functions.” Id. at 1.
Later in 1977, the White House again asked us to advise on the application of section

3110 to a contemplated presidential appointment, this time of the President’ s son to serve as an

unpaid assistant to a regular member of the White House staff. See Memorandum for the

Attorney General, from John M. Harmon, Acting Assistant Attorney General, Office of Legal

Counsel, Re: Employment of Relatives Who Will Serve without Compensation (Mar. 23, 1977)

(“3/23/77 Harmon Memo ”) (referencing Memorandum for John M. Harmon, Acting Assistant

Attorney General, Office of Legal Counsel, from Edwin S. Kneedler, Office of Legal Counsel,

Re: Appointment ofPresident’s Son to Position in the White House Office (Mar. 15, 1977)

(“3/15/77 Kneedler Memo”)). We “re-examin[ed]” the issues raised by the proposed

appointment in light of arguments advanced by the Civil Service Commission (now OPM) for

construing section 3110 not to prohibit the President and Vice President from appointing

relatives to their personal staffs. Id. at 1. We deemed the Commission’s arguments

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 unpersuasive, however, reaffirming the reasoning of the Mental Health Commission Memo and

concluding that section 3110 barred the proposed appointment. See 3/23/77 Harmon Memo at 1

(noting that 3/15/77 Kneedler Memo, which concluded “that [section 3110] does apply to

positions on the President’s staff,” and to the proposed appointment in particular, was conveyed

to the Counsel to the President); see also id. at 2 (stating that Mr. Harmon had “re-examined the

specific issue of whether the statute applies to uncompensated positions,” and concluded that it

does).
Finally, in a February 28, 1983 memorandum, we advised on whether the President could

appoint a relative to the Presidential Advisory Committee on Private Sector Initiatives (“CPSI”).
See Memorandum for David B. Waller, Senior Associate Counsel to the President, from Robert

B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Appointment of
Member ofPresident’s Family to Presidential Advisory Committee on Private Sector Initiatives
(“CPSI Memo”). After summarizing the Office’s precedents on the application of section 3110,

we cautioned that “time constraints have not permitted us to reexamine the legal analysis and

conclusions reached in these memoranda.” Id. at 1. We nonetheless observed that the CPSI and

the Mental Health Commission “are not sufficiently different to provide a basis for

distinguishing between them with respect to the applicability of section 3110,” and stated that in

light of our inability to conduct a proper reexamination, “we must adhere to the conclusion . . .

that the President cannot, consistently with section 3110, appoint a relative as an active member

of such a Commission, even if the relative serves without compensation.” Id. at 1-2.
Thus, these precedents demonstrate this Office’s consistent position that a presidential
appointment is not exempt from the bar imposed by section 3110 just because it is to an

uncompensated position or to a position on an advisory committee. Absent clear evidence that

the analysis in these prior memoranda was in error, that there have been material intervening

changes in the governing law, or that the appointments presently contemplated are somehow

distinguishable from those we have addressed previously, we are disinclined to deviate from our

longstanding position.


III
The first issue we address is whether members of the Fitness Council and the Fellowships
Commission, who receive no compensation and exercise duties that are strictly advisory in

nature, occupy “civilian positions” within the meaning of section 3110. We conclude that they

do.


Lack of compensation. As discussed above, the Office has repeatedly advised that

section 3110 applies to presidential appointments to uncompensated positions.3 In a 1993


3

See 3/23/77 Harmon Memo at 2; Mental Health Commission Memo; see also Memorandum for D. Lowell

Jensen, Acting Deputy Attorney General, from Theodore B. Olson, Assistant Attorney General, Office of Legal

Counsel, Re: Application of5 U.S.C. § 3110 to Mrs. Meese’s Service on Attorney General’s Task Force on Family

Violence at 2 (Feb. 14, 1984) (relying on 3/23/77 Harmon Memo in concluding that section 3110 applies to the

uncompensated service of the wife of Attorney General Edwin Meese III on the Attorney General’s Task Force on


Family Violence) (“Family Violence Task Force Memo”); Memorandum for Michael E. Shaheen, Jr., Counsel,

Office of Professional Responsibility, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal

Counsel, Re: Use ofDepartment ofJustice Vehicles by Attorney General’s Spouse at 9 (Jan. 23, 1984) (concluding


4

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 decision, however, the U.S. Court of Appeals for the District of Columbia Circuit observed in

dicta that “[t]he anti-nepotism statute . . . may well bar appointment only to paid positions in

government.” Ass’n ofAm. Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898, 905 (D.C.

Cir.) (“AAPS”). The only support the court offered for this view was a citation to subsection (c)

of the statute, which provides that “[a] n individual appointed, employed, promoted, or advanced

in violation of [section 3110] is not entitled to pay, and money may not be paid from the

Treasury as pay to an individual so appointed, employed, promoted, or advanced. ” 5 U.S.C.

§ 3110(c). The 2/17/77 Kneedler Memo that was attached to and referenced in the Mental

Health Commission Memo addressed the import of subsection (c). In concluding that section

3110 applies to uncompensated appointments, the Kneedler Memo acknowledged the argument

“that because the statutory remedy for a violation is to deny the appointee pay,” the ban applies

only to appointments to compensated positions, 2/17/77 Kneedler Memo at 2. But the Kneedler

Memo deemed this argument unpersuasive in light of section 3110’s text and legislative history

and the evident congressional purposes underlying its enactment. See id. at 2-4; see also id. at 4
(observing that Civil Service Commission concurred in the Memo’s view that the prohibition

applies to uncompensated positions). We agree with this conclusion.
We turn first to the text of section 3110. As the 2/17/77 Kneedler Memo observed, the


“substantive prohibition in [section 3110(b)] is written in broad terms which on their face attach

no significance to the matter of compensation.” 2/17/77 Kneedler Memo at 2. In particular, to

say that a public official may not “appoint” someone does not suggest that the appointment must

be compensated. This is demonstrated by the very executive orders establishing the Fitness

Council and the Fellowships Commission, both of which use the term “appoint” to refer to

positions that are uncompensated. See Exec. Order No. 11183, § 1(b) (“Members appointed to

the Commission from private life shall serve without compensation.”); Exec. Order No. 13265,

§ 2(b) (“The Council shall be composed of up to 20 members appointed by the President.”). It is


true that subsection (b) uses “appoint” in conjunction with “employ” and that the appointment

must be to a civilian “position” a term that in context might well mean an “employment,”

Webster’s New International Dictionary 1925 (2d ed. 1958). But although it may be fair to say

that employments usually come with a salary, that is not necessarily the case. See Memorandum

for the Honorable Fred F. Fielding, Counsel to the President, from Theodore B. Olson, Assistant

Attorney General, Office of Legal Counsel, Re: Private Sector Survey on Cost Control in the

Federal Government at 4 (Mar. 17, 1982) (“[P] ersons who do not receive a federal salary may

nonetheless be deemed to be government employees by virtue of the tasks that they perform or

the positions in which they serve. ”) (“Cost Control Survey Memo”). Since the members of the


Council and the Commission serve in their positions as uncompensated “special government

employees,” 18 U.S.C. § 202 (emphasis added), the proposed appointments at issue here again

demonstrate the point. Accordingly, we believe that the text of section 3110 strongly supports

the conclusion that Congress intended the prohibition to encompass appointments to both paid

and unpaid positions.
In addition, as the 2/17/77 Kneedler Memo observed, the legislative history of section

3110 provides no clear indication that Congress intended uncompensated appointments to be

exempt from the prohibition. See 2/17/77 Kneedler Memo at 2; cf. Mental Health Commission


that “[s]ection 3110 would prohibit the Attorney General from appointing his spouse to, or recommending her for,
even an uncompensated official position within the Department of Justice”).
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 Memo (“[T]he legislative history of the statute shows that the prohibition in 5 U.S.C. § 3110(b)

applies whether or not the appointee will receive compensation.”). To be sure, there are isolated

floor and hearing statements indicating that certain members of Congress were particularly

concerned about appointments to paid positions. See 113 Cong. Rec. 28,659 (Oct. 11, 1967)

(statement of Rep. Smith); 113 Cong. Rec. 37,316 (Dec. 15, 1967) (statement of Rep. Udall);

Federal Pay Legislation: Hearings Before the S. Comm. on Post Office and Civil Service, 90th

Cong. 360, 366 (1967) (“Section 3110 Hearings”). But there is no evidence that members were

concerned exclusively with such appointments, or that they were unconcerned about

appointments to unpaid positions. In fact, Congress might well have concluded that eliminating

“family patronage” from “Federal job appointments,” 113 Cong. Rec. 37,316 among the stated

purposes of section 3110 would necessarily require applying the prohibition to unpaid

government positions as such positions are often highly sought after for their substantial nonpecuniary benefits. Moreover, as the 2/17/77 Kneedler Memo also noted, the legislative history

demonstrates that section 3110 was motivated in significant part by Congress’s belief that

appointments of unqualified relatives were sapping the morale of government workers and

hindering government efficiency. See 2/17/77 Kneedler Memo at 4 (citing 113 Cong. Rec.

28,659 (statement of Rep. Smith); Section 3110 Hearings at 359, 365-68, 372). Such detrimental

effects can result from appointments to unpaid as well as paid positions.

Subsection (c)’s provision that relatives appointed in violation of the statutory prohibition

are “not entitled to compensation” does not undermine this reading. Admittedly, were this loss

of compensation the only statutorily required penalty for violations of section 3110, it might cast

some doubt on whether the prohibition extends to uncompensated positions. In our view,

however, the better reading of section 3110, including its legislative history and structure, is that
Congress intended for relatives appointed in violation of the prohibition to be removed a

penalty that applies regardless whether the position is compensated. Three considerations

support this conclusion. First, section 3110 does not describe loss of compensation as the

exclusive statutory penalty for appointments in violation of the prohibition, nor do we believe

that loss of compensation is inconsistent with an implied statutory penalty of removal. See
Chauffeur’s Training Sch., Inc. v. Spellings, 478 F.3d 117, 126-27 (2d Cir. 2007). Second, the

legislative record supports the conclusion that Congress intended an implied statutory penalty of

removal. See 113 Cong. Rec. 37,377 (1967) (“Discovery of such an appointment [in violation of


section 3110] will result in the removal of the appointee from office.”) (statement by House

Majority Leader Albert of accomplishments of the first session of the 90th Congress). Moreover,

as noted above, there is no suggestion in the relevant legislative history that Congress intended

appointments of relatives to uncompensated positions to be treated more leniently than such

appointments to compensated positions. Third, it makes little sense to construe the available

remedies under section 3110 as limited to denial of compensation, since such a reading would

mean that an illegal paid appointee is subject to loss of his compensation, but not to loss of his

position. We doubt that Congress’s intent in enacting section 31 10 was to permit improperly

appointed relatives to remain as volunteers in their formerly compensated positions.

To be sure, “it is an elemental canon of statutory construction that where a statute

expressly provides a particular remedy or remedies, a court must be chary of reading others into

it.” Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 20 (1979). This canon may

“yield,” however, “to persuasive evidence of a contrary legislative intent,” id., including the text,

the “legislative history[,] and the overall structure” of a statute, Sec. Investor Prot. Corp. v.


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 Barbour, 421 U.S. 412, 419 (1975). Cf. Transamerica Mortgage Advisors, 444 U.S. at 18-19


(concluding that statutory language, “[b]y declaring certain contracts void,” “itself fairly

implies” a cause of action to bring “suit for rescission or for an injunction against continued

operation of the contract, and for restitution,” which suits are “customary legal incidents of

voidness”); Chauffeur’s Training Sch., Inc. , 478 F.3d at 126-27 (“We are not persuaded that

Congress, by describing some remedial actions available to the Department [of Education],

As


intended to preclude the Department from taking other reasonable remedial actions.”).
discussed above, we have identified such “persuasive evidence” here.

Accordingly, we conclude that subsection (c) is best read as affording an additional

specific penalty for appointments to compensated positions made in violation of section 3110,

but not as limiting the universe of prohibited appointments to only those that are compensated.

Advisory Character. As discussed above, this Office has also advised that section 3110

applies to presidential appointments to positions that are strictly advisory.4 We remain of this
view, and therefore believe that the purely advisory functions of the Fitness Council and the

Fellowships Commission would not remove their members from occupying “civilian positions.”

“Members of advisory committees are usually considered to be employees of the United

States,” Memorandum for C. Boyden Gray, Counsel to the President, from William P. Barr,

Assistant Attorney General, Office of Legal Counsel at 1-2 (May 15, 1989) (“Barr Memo”).
That would be clearly true here, as we are advised that members of the Fitness Council and the

Fellowships Commission are appointed as special government employees. Moreover, members

of these bodies, like the members of other advisory committees, “hold positions that are

expressly created by federal authority, they are charged with federal responsibilities, and they are

often entrusted with access to government information not available to the public.” Application

of 18 U.S.C. § 219 to Members of Federal Advisory Committees, 15 Op. O.L.C. 65, 68 (1991)
(“Section 219 Opinion”).5 In light of the purposes underlying section 3110 including

Congress’s concern that appointments of relatives were impairing government operations we

believe that the prohibition applies to positions that carry these indicia of authority and

responsibility.
We note, moreover, that application of section 3110 in the present circumstances hardly

constitutes an unprecedented example of congressional regulation of volunteer service in

Executive Branch advisory positions. Were they to be appointed, both the President’s brotherin-law and his half-sister would be subject as special government employees to a number of

statutory restrictions on their conduct. See Fitness Council Memo at 8 (members of Fitness

Council, as federal employees, are subject to conflict-of-interest laws, including 18 U.S.C.

4

See Mental Health Commission Memo at 1; see also CPSI Memo at 2; cf. 3/23/77 Harmon Memo at 1
(appointment to White House staff); Cramton Memo at 1 2 (same).
5

The Section 219 Opinion, from which this characterization of advisory committees is drawn, concluded
that members of such committees “hold offices of profit or trust within the meaning of the Emoluments Clause[,
U.S. Const. art. I, § 9, cl. 8].” 15 Op. O.L.C. at 68. The Office subsequently receded from the view that the

Emoluments Clause applies to entities of this type, see The Advisory Committee on International Economic Policy,
20 Op. O.L.C. 123 (1996); see also infra , fn. 6, but the Section 219 Opinion’s characterization of the nature and
functions of advisory committees remains sound.

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 § 208); see also Barr Memo at 2 (“As special government employees, advisory committee

members are subject to some but not all of the conflict laws.”); Memorandum for Stephen J.

Markman, Assistant Attorney General, Office of Legal Policy, from Douglas W. Kmiec, Deputy

Assistant Attorney General, Office of Legal Counsel, Re: H.R. 4203, Advisory Panel on

Government Debt Collection Act at 5 & n. 5 (Apr. 24, 1986) (same); see, e.g., 18 U.S.C. § 208

(2006) (precluding government employees from participating personally and substantially,


including through “recommendation [or] the rendering of advice,” in any matter in which they

have a financial interest, absent a waiver). 6
That members of the Fitness Council and the Fellowships Commission are charged with

advising the President does not affect our conclusion in this case. In particular, we do not

believe that Congress’s barring of the appointment of presidential relatives to such advisory

committees impermissibly “restrict[s] the President’ s ability to seek advice from whom and in

the fashion he chooses,” AAPS, 997 F.2d at 909. See Cramton Memo at 1-2 (concluding that

while section 3110 may present constitutional concerns as applied to presidential appointments

of “high-level” officials, it “seems clearly applicable to subordinate positions on the White

House staff, which fall within the category of ‘inferior officers’ subject to Congressional

control”). The U.S. Court of Appeals for the District of Columbia Circuit has “construe[d]”

FACA “strictly” in determining whether it applies to presidential advisory committees to avoid

potential separation of powers concerns. In re: Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005); see

also Ctr. For Arms Control and Non-Proliferation v. Pray, 531 F.3d 836, 843-44 (D.C. Cir.

2008); AAPS, 997 F.2d at 910-11. The court has expressed the view that subjecting such

committees to FACA which requires, among other things, balanced committee membership,

open committee meetings, and the public availability of committee documents, see 5 U.S.C. app.

§§ 5(b)(2); 10(a), (b) (2006) risks impermissible interference with the President’s


constitutional entitlement “to consult with his advisers confidentially [and,] as a corollary, . . . to

organize his advisers and seek advice from them as he wishes.” AAPS, 997 F.2d at 909; see also
Cheney, 407 F.3d at 728 (identifying President’s need, “[i]n making decisions on personnel and

policy, and in formulating legislative proposals, . . . to seek confidential information from many

sources, both inside the government and outside”); cf. Pub. Citizen v. United States Dep’t of

Justice, 491 U.S. 440, 466 (1989) (construing FACA not to apply to the judicial recommendation

panels of the American Bar Association to avoid “formidable constitutional difficulties”). But

whatever the merits of the D.C. Circuit’s analysis in the context of FACA, we do not believe that

the application of section 3110 to prevent a President’s relative from serving on a presidential

advisory committee threatens to “impermissibly undermine[] the powers of the Executive

6
We recognize that members of the Fitness Council and the Fellowships Commission might not be subject

to a number of statutory and constitutional standards of conduct that apply only to employees of the federal

government who exercise some substantive authority. See 20 Op. O.L.C. 123 (1996) (appointees do not hold an

“Office[] of Profit or Trust” for purposes of the Emoluments Clause when they “meet only occasionally, serve


without compensation, take no oath, and do not have access to classified information,” and when “the Committee”

on which they serve “is purely advisory, is not a creature of statute, and discharges no substantive statutory

responsibilities”); Dixson v. United States, 465 U.S. 482, 496, 499 (1984) (in order to qualify as a “public official”

for purposes of the federal bribery statute, 18 U.S.C. § 201, a person must “occup[y] a position of public trust with

official federal responsibilities,” and “must possess some degree of official responsibility for carrying out a federal

program or policy”). These standards are phrased differently than section 3110, and they are motivated by different

purposes. Accordingly, we do not view any limits on their application as shedding significant light on the present

inquiry.

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Document ID: 0.7.13767.6796-000005

 Branch” or to “disrupt[] the proper balance between the coordinate branches by preventing the

Executive Branch from accomplishing its constitutionally assigned functions.” Morrison v.

Olson, 487 U.S. 654, 695 (1988) (internal quotation marks, alterations, and citation omitted).
The President remains free to consult his relatives in their private, individual capacities at the

time and place of, and on the subjects of, his choosing, and, in any event, “the effect of the

qualification requirement is to eliminate only a handful of persons from the pool of possible

appointees,” 3/15/77 Kneedler Memo at 4.

IV

We next address whether the proposed appointments would be to positions “in [an]
agency” as defined in section 3110. We have previously determined that positions on the

President’s staff and the White House Office staff and as a member of the Mental Health
Commission would be “in [] agenc[ies]” for purposes of section 3110.7 We conclude the same

with respect to seats on the Fitness Council and the Fellowships Commission.
Section 3110 defines “agency” to mean “Executive agency,” 5 U.S.C. § 3110(a)(1)(A),

which in turn is defined for title 5 generally as “an Executive department, a Government

corporation, and an independent establishment,” id. § 105. Thus, for a seat on the Council or the

Commission to be “in [an] agency” for purposes of section 3110, the Council or the Commission

must either constitute or be located in one of the kinds of entities t hat qualify as an “Executive

agency” under section 105.8 Neither the Fitness Council nor the Fellowships Commission is, or

is part of, a Government corporation, see id. § 103, so whether membership on the Council or the

Commission would be “in [an] agency” turns on whether the Council or the Commission
constitutes, or is situated in, an “Executive department” or an “independent establishment.”

Fitness Council. We believe that the Fitness Council has a sufficiently close and

substantial relationship with the Department of Health and Human Services (“HHS”) that the

Council should be considered within that Department for purposes of determining whether

section 3110 applies. Since the Department of HHS is one of the “Executive Department[s]
listed in 5 U.S.C. § 101 (2006), membership on the Council constitutes a position in an

“Executive department,” and thus “in [an] agency.” The position therefore falls within the scope

of section 3110.

The executive order establishing the Fitness Council does not specify its location, but the

order does indicate a close connection between the Council and the Department of HHS. See

Executive Order No. 13265; see also infra pp. 11-12. In order to determine whether the Council
is actually a part of HHS for purposes of section 105 (and thus section 3110), we must perform a

“fact-specific analysis,” as guided by our prior Office precedent. Applicability of the Federal


7
See CPSI Memo; 3/23/77 Harmon Memo at 2; Mental Health Commission Memo; Cramton Memo; see
also Family Violence Task Force Memo at 2 (service on Attorney General’s Task Force on Family Violence 

located within the Department of Justice is “in [an] agency” for purposes of section 3110).
8

An independent establishment cannot be “part of an independent establishment,” 5 U.S.C. § 104(1), but


an entity that is part of an independent establishment is su bject to “the provisions of [title 5] applicable to the

independent establishment of which [the entity is] a constituent or part.” S. Rep. No. 89 1380, at 22 (1966); H.R.
Rep. No. 89 901, at 6 (1965).

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 Vacancies Reform Act to Vacancies at the International Monetary Fund and the World Bank, 24

Op. O.L.C. 58, 63 (2000) (“IMF Memo”).
Particularly instructive on this point is advice we provided in 1995 on whether the

Regional Fishery Management Councils are components of the Commerce Department for

purposes of section 15 of the Age Discrimination in Employment Act, 29 U.S.C. § 633a (1994).
That statute applies to personnel actions affecting applicants to and employees in Executive

agencies as defined in section 105. See Memorandum for Ginger Lew, General Counsel,

Department of Commerce, from Dawn Johnsen, Deputy Assistant Attorney General, Office of

Legal Counsel, Re: ADEA and Regional Fishery Management Councils (Mar. 14, 1995)

(“Regional Fishery Management Councils Opinion”). In concluding that the Councils are part of

the Commerce Department, we identified the following factors as “substantial and persuasive”:

(1) the Councils’ primary function is to advise the Secretary of Commerce with respect to

fishery management plans which are a Commerce responsibility; (2) those plans are

subject to ultimate review and approval by the Secretary; (3) a majority of the Councils’

voting members are appointed by the Secretary, and those members are removable “for

cause” by the Secretary on the recommendation of the Councils; (4) the Secretary

determines what administrative employees (other than the executive directors) may be

appointed by the Councils; (5) the Secretary prescribes the uniform standards that govern

the organization, practice, and procedures adopted by the Councils in performing their

functions; (6) the Councils must report annually to the Secretary; and (7) the

compensation of Council members and staff, as well as its other costs and expenses, are

paid by Commerce.
Id. at 4 n.1.
Also relevant is our advice on whether the United States Mission to the United Nations is

within the Department of State for purposes of a since-superseded version of the Vacancies Act,

5 U.S.C. §§ 3345-3349 (1994), which applied to certain vacancies in “Executive agenc[ies]” as

defined in section 105. See Memorandum for Files, from Daniel L. Koffsky, Special Counsel,

Office of Legal Counsel, Re: Permanent Representative to the United Nations (July 14, 1998)

(“1998 UN Memo”); Memorandum for Files, from Daniel L. Koffsky, Special Counsel, Office

of Legal Counsel, Re: Vacancy at United States Mission to the United Nations (Apr. 8, 1996)

(“1996 UN Memo”). In the 1996 UN Memo, we identified three factors as establishing that the

Mission was part of the State Department: that instructions for the U.S. Permanent

Representative to the United Nations (who heads the Mission) were sent through the Secretary of

State, that the State Department controlled the Mission’s appropriations, and that the State

Department’s organizational chart had an entry for the Permanent Representative. See 1996 UN

Memo at 1-2. In the 1998 UN Memo, we reaffirmed this conclusion and deemed it

“reinforce[d]” by “practice,” including that the State Department handled the Freedom of

Information Act (“FOIA”), whistleblower, and ethics work for the Mission; that the State

Department carried the Permanent Representative on its employment rolls; that there was a

“home desk” for the Mission within the State Department; and that the State Department’s

administrative officers treated the Permanent Representative as an official of the Department.
See 1998 UN Memo at 2.

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 Finally, we find guidance in our 2000 advice on whether the U.S. Executive Director and

the Alternate U.S. Executive Director at the International Monetary Fund and the World Bank


(“U.S. representatives”) are part of the Department of the Treasury for purposes of the Federal

Vacancies Reform Act, 5 U.S.C. §§ 3341-3349d (Supp. IV 1998). See 24 Op. O.L.C. at 61-65,

67-68. In concluding that they were not, we acknowledged that the President had delegated to


the Secretary of the Treasury responsibility for conveying the government’s instructions to the

U.S. representatives, that the Treasury Department is responsible for some aspects of the


representatives’ receipt of certain employment benefits, and that the Department gives ethics

advice to the representatives. See id. at 62-63. We nonetheless characterized the relationship of

the U.S. representatives to the Treasury Department as “quite limited in scope and frequently

ambiguous even within that limited area.” Id. at 61. Central to this determination was the fact


that “[f]or some of the most central elements of personnel administration, the U.S.

representatives are unconnected to the Department of the Treasury.” Id.9 Specifically, we noted

that the Department was not responsible for setting or paying the U.S. representatives’ salaries

and did not carry them on its employment roles and that the U.S. representatives’ staff were not

employees of the Treasury Department. See id.
Consistent with this past advice, we believe that the relevant factors support the

conclusion that the Fitness Council is part of the Department of HHS. The HHS General

Counsel’s Office has advised us that it concurs with this conclusion. Accord Memorandum for

Files, from Janis Sposato, Office of Legal Counsel, Re: President’s Council on Physical Fitness

and Sports Authority to Accept Gifts at 1 (Aug. 2, 1982) (“[T]he Council is an advisory


Committee attached to the Department of [HHS].”); S. Comm. on Homeland Sec. and

Governmental Affairs, 110th Cong., U.S. Gov’t Policy and Supporting Positions 68 (Comm.

Print 2008) (“Plum Book”), available at http://www.gpoaccess.gov/plumbook/2008/ (locating

Executive Director of Fitness Council within HHS Office of the Assistant Secretary for Public

Health and Science).
Most importantly, the Fitness Council advises and makes recommendations directly to

the Secretary of HHS on matters relating to the Secretary’s operational responsibilities 

specifically, the Secretary’s development and coordination of a “program to enhance physical

activity and sports participation,” Exec. Order No. 13265, § 1; see id. § 3(b), (d). See Regional

Fishery Management Councils Opinion at 4 n.1 (noting that Councils advise the Secretary of

Commerce regarding matters for which Secretary is responsible). Even the Council’s advice and

recommendations for the President must be made “through the Secretary,” Exec. Order No.

13265, § 3(a).10 Cf. 1996 UN Memo at 1-2 (noting that instructions for U.S. Permanent

Representative to the United Nations are sent through the Secretary of State). It is also

significant that the Secretary appoints the Council’s Executive Director; must agree to the

objectives of any subcommittees established by the Council; is responsible for furnishing the

Council with necessary administrative services, including staff; and pays the Council’s expenses


9

We also noted that the responsibility for instructing the U.S. representatives had not originally been

delegated to the Secretary of the Treasury, and that no action by the President or Congress in subsequently

transferring this authority to the Secretary demonstrated an intent to “transfer the legal, administrative location of the


U.S. representatives.” 24 Op. O.L.C. at 63.
10
Prior to 2002, the Council had advised and provided recommendations to the President directly. See
Exec. Order No. 12345, § 3(a), 47 Fed. Reg. 5,189 (Feb. 2, 1982).

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 out of her own funds. See Exec. Order No. 13265, § 4(c), (d), & (e). Finally, we note that the


Secretary is responsible for performing all of the President’s functions under FACA with respect

to the Council (except reporting to Congress), see id. § 5(a), including “evaluating and taking

action, where appropriate, with respect to all public recommendations” the Council makes to the

President, 5 U.S.C. app. § 6(a).
Although the President, not the Secretary of HHS, appoints the members of the Fitness

Council, that does not outweigh the other relevant considerations we have identified. See 1998

UN Memo (deeming the U.S. Mission to the United Nations part of the State Department despite

the fact that the President, not the Secretary of State, appoints the Permanent Representative, see

U.S. Const. art. II, § 2, cl. 2); see also 1996 UN Memo (same). Taken together, these factors 

particularly the fact that the Secretary either receives herself or conveys to the President all of the

Fitness Council’s advice suffice to make the Council a part of the Department of HHS for

purposes of section 105, and thus to render appointments to it subject to section 3110.11

Fellowships Commission. The Fellowships Commission is not one of the Executive

Departments listed in section 101 and has no connection with any of those Departments.
Accordingly, whether membership on the Commission constitutes a position “in [an] agency”

turns on a distinct question namely, whether the Commission is, or is part of, an “independent
establishment” for purposes of section 105.

An “independent establishment” is defined as “an establishment in the executive branch

(other than the United States Postal Service or the Postal Regulatory Commission) which is not
an Executive department, military department, Government corporation, or part thereof, or part

of an independent establishment.” 5 U.S.C. § 104(1) (2006). The executive order establishing

the Commission does not specify its location, see Exec. Order No. 11183, and so we must look

beyond the text of the order. We discern four realistic possibilities: either the Commission is in

OPM, which “provid[es] the Commission with administrative services, staff support, and travel

expenses,” id. § 4(b); it is within the White House Office; it is elsewhere in the Executive Office

of the President (“EOP”); or it is a freestanding Executive Branch entity.
If the Commission were in OPM, then Commission memberships would be subject to

section 3110, since OPM is an independent establishment, see 5 U.S.C. § 1101 (2006). Looking

to the same factors that were relevant in assessing whether an entity is part of an Executive

department, however, we are of the view that the Commission is not part of OPM. The OPM

General Counsel’s Office has advised us orally that it agrees with this conclusion.
OPM provides the Commission with administrative support, but that relationship is not


itself dispositive of the Commission’s status. We are mindful that, since title 5 “largely deals

with personnel matters,” we have advised that if an Executive Branch entity has no connection

with an Executive department for certain “essential aspects of personnel administration,” then

11

This conclusion is consistent with those executive orders creating advisory committees similar to the

Fitness Council in which the location of the committee is specified. See Exec. Order No. 13256, 67 Fed. Reg. 6,823
(Feb. 12, 2002) (locating President’s Board of Advisors on Historically Black Colleges and Universities within the


Department of Education); Exec. Order No. 13270, 67 Fed. Reg. 45,288 (Jul. 3, 2002) (locating the President’s

Board of Advisors on Tribal Colleges and Universities within the Department of Education).

12

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 “the compelling implication” is that the entity does not reside within that Executive department.

24 Op. O.L.C. at 62. But the converse of this proposition

that if an Executive department or


independent establishment is responsible for an entity’s “essential aspects of personnel

administration,” then the entity is necessarily part of that Executive department or independent

establishment is not necessarily true. Indeed, we are loath to treat the identity of the agency

providing administrative services as dispositive of the location of the entity receiving the

services when, as in this instance, the receiving entity is a FACA advisory committee. FACA


permits the “establishing authority” to provide for a committee to receive “support services”

from an entity other than the one that established the committee or receives advice from it. See 5

U.S.C. app. § 12(b) (2006); see, e.g., Exec. Order No. 13498, § 2(a), (d)(5), 74 Fed. Reg. 6,533

(Feb. 5, 2009) (establishing President’s Advisory Council on Faith-Based and Neighborhood


Partnerships within the Executive Office of the President (“EOP”), but specifying that the

Department of HHS shall provide administrative support to and fund the Council).12 It would

give too much weight to the establishing authority’s discretionary choice of a particular entity to

provide support services possibly for budgetary or other practical reasons to treat that choice

as determinative of the location of the committee receiving the support. 13

We therefore must consider the other indicia of the Commission’s form and function, all

of which by suggesting the Commission’s close connection to the President
placing it within OPM. In particular, the Commission’s “basic function . . . is

militate against

to provide

recommendations” regarding prospective White House Fellows to the President, for his “ultimate

decisions,” Fellowships Commission Letter at 2; see Exec. Order No. 11183, § 2 a process that

does not involve OPM in any way. Moreover, the President

not OPM

selects the members of


the Commission and its Chairman. The evolution over time of the Commission’s structure also

supports treating it as separate from OPM. The original version of the executive order


12

The discretion of the establishing authority under section 12(b) of FACA to choose which entity will

supply support services to a committee applies equally with respect to presidential advisory committees. To be sure,
section 12(b) provides that “[i] n the case of Presidential advisory committees, [support] services may be provided by

the General Services Administration. ” But any argument that this language implicitly “requires that administrative

support [for a presidential advisory committee] come from either the appropriation for the Executive Office of the


President or from the GSA, and not some other agency,” finds no support in Executive Branch practice or the

legislative history of FACA, Memorandum for Files, from Thomas O. Sargentich, Office of Legal Counsel, Re:
Contemplated Executive Order to establish Presidential Advisory Committee on the Arts and Humanities at 2 (May

28, 1981).
13
We advised in the IMF Memo that the offices of the U.S. representatives are “component part[s] of the
IMF [and World Bank]” because those organizations fully fund the offices including setting and paying the

compensation of the representatives and their staffs and the offices’ operating expenses and staff the offices with


IMF and World Bank employees. 24 Op. O.L.C. at 66. We thus appeared to take the position that the offices of the

U.S. representatives were components of the IMF and the World Bank at least in large part because those

organizations were responsible for funding and staffing the offices. In rejecting the proposition that a federal


government entity’s responsibility for providing administrative support and staff to a FACA advisory committee

suffices to establish the committee’s location within that entity, we do not call the validity of thi s previous advice

into question. We addressed in the IMF memo only whether an entity was within an international organization or
the federal government. The standards for resolving this question may not necessarily be the same as those we have

applied here in determining whether the Fitness Council and Fellowships Commission entities that are

unquestionably within the Executive Branch are free standing or components of an Executive department or
independent establishment. Moreover, the offices of the U.S. representatives are not FACA advisory committees,

and we have already explained why we are particularly reluctant to treat the identity of the entity providing

administrative support to such a committee as dispositive of where the committee resides.

13

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 establishing the Commission, issued in 1964, provided that the “Civil Service Commission shall .

. . assist in the conduct of the [Fellowships] Commission’s work.” Exec. Order No. 11183,

§ 4(b). The 1972 order amending that original order eliminated this requirement, see Exec.

Order No. 11648, § 4, although it retained the requirement that the Civil Service Commission

provide administrative services to the Fellowships Commission. Thus, in issuing the 1972

executive order, the President appears to have intended to limit the involvement in the

Commission’s activities of the entity charged with providing it with administrative support.
Considering all of the relevant factors, we conclude that the Commission is not part of OPM.
We also do not believe that the Commission is part of the White House Office. The

executive order establishing the Commission does not place it within the White House Office, cf.
Exec. Order No. 13283, § 1, 68 Fed. Reg. 3,371 (Jan. 21, 2003) (establishing Office of Global

Communications within the White House Office); Exec. Order No. 13254, § 4, 67 Fed. Reg.
4,869 (Jan. 29, 2002) (establishing USA Freedom Corps Office as “a component of the White

House Office”); Exec. Order No. 12537, § 1, 50 Fed. Reg. 45,083 (Oct. 28, 1985) (establishing

President’s Foreign Intelligence Advisory Board within the White House Office), and no

member of the President’s personal staff serves on the Commission, cf. Exec. Order No. 13503,

§ 5(b), 74 Fed. Reg. 8,139 (Feb. 19, 2009) (designating Deputy Assistant to the President and

Director of Urban Affairs as head of the White House Office of Urban Affairs); Exec. Order No.

13199, § 4(b), 66 Fed. Reg. 8,499 (Jan. 29, 2001) (designating the Assistant to the President for

Faith-Based and Community Initiatives as head of the White House Office of Faith-Based and

Community Initiatives). In addition, the Plum Book lists the Commission among the

“independent agencies and government corporations,” not as part of the White House Office (or

the Executive Office of the President). Plum Book at 180; cf. 1996 UN Memo at 2 (looking to

State Department organizational chart in determining location of U.S. Permanent Representative

to the United Nations). We note, moreover, that OPM, not the White House Office, provides

“the Commission with administrative services, staff support, and travel expenses,” Exec. Order

No. 11183, § 4(b), and indeed the Commission has informed us that it receives no funding

through the White House Office. See 24 Op. O.L.C. at 62-63 (noting that if Treasury


Department does not employ or pay the salaries of the U.S. representatives, the “compelling

implication is that [they] are not located in the Department”). Finally, based on our discussions

with your Office, we are not aware of any other factors that would suffice to warrant treating the

Commission as part of the White House Office under our precedents.

It is true that the White House website identifies the “White House Fellows” as within the

White House Office, see http://www.whitehouse.gov/administration/eop/, but this may be a

reference to the administrative location of the fellowship program itself, not to the location of the

Commission. See Congressional Quarterly, Inc., Federal Staff Directory 12, 43-44 (56th ed.

2008) (separate entries for “White House Fellowships,” which is situated within the Office of the


President, and the “President’s Commission on White House Fellowships,” which is situated

outside the Office of the President as an agency of the EOP). In any event, as we have noted, the


other available evidence points away from the Commission’s location within the White House

Office.
Having determined that the Commission is part of neither OPM nor the White House

Office, the remaining alternatives are either that it resides elsewhere in the EOP or that it

constitutes a free-standing entity within the Executive Branch. There is some support for


14

Document ID: 0.7.13767.6796-000005

 locating the Commission, which is charged solely with advising the President, in the EOP, since

we have in the past advised that entities of this type reside in the EOP. See Memorandum for

Files, from Paul P. Colborn, Special Counsel, Re: Records of the Information Coordination

Center at 2 (Nov. 14, 2000) (“As with other presidential boards and commissions, the

[President’s Council on Year 2000 Conversions] resided in the Executive Office of the

President.”). However, in light of our conclusion below that the Commission amounts to an

“establishment,” see infra pp. 15-18, we need not resolve this question definitively. Regardless

whether the Commission is part of the EOP or free-standing, the Commission’s status as an

establishment means that membership on the Commission constitutes a position in an

independent establishment for purposes of section 105 and thus “in [an] agency” for purposes

of section 3110.
Three separate possible lines of analysis lead to this same conclusion. If the Commission

is a free-standing establishment, then it would qualify as an independent establishment, and its

members would hold positions in an independent establishment. If the Commission is in the

EOP, then there are two further possibilities, depending on whether EOP itself is an independent

establishment, but both lead to the conclusion that so long as the Commission amounts to an

establishment, its members occupy positions in an independent establishment and thus in an

agency under section 3110. If the EOP itself is an independent establishment, as we have
suggested at times in the past,14 then Commission memberships would constitute positions in that

independent establishment. If the EOP is not an independent establishment the view that we

have espoused more recently15 then, so long as the Commission constitutes an “establishment,”

its members would hold positions in an independent establishment, since the Commission would

be independent in the sense of not being part of any department or independent establishment.
We turn, then, to the ultimate question of whether the Commission constitutes an
Although the question is not

entirely free of doubt, we conclude that it does.

“establishment,” as that term is used in sections 104 and 105.

This Office has consistently read the statutory term “establishment” as having “broad”

application. 24 Op. O.L.C. at 65. We have sometimes suggested that the term is a catch-all for

“essentially any . . . organization in the Executive Branch” that is not an Executive department or

a Government corporation. Applicability of the Hatch Act to the Chairman of the Native

Hawaiians Study Commission, 6 Op. O.L.C. 292, 293 (1982). Thus, we have characterized it as

intended to sweep in “all agencies and instrumentalities in the Executive Branch.” Memorandum

for Charles H. Atherton, Secretary, Commission of Fine Arts, from Theodore B. Olson, Assistant

Attorney General, Office of Legal Counsel, Re: Applicability of Exec. Order 11988 Concerning
Floodplain Management to the Commission of Fine Arts at 4 (June 7, 1984) (“1984 Fine Arts

Memo”). That approach is consistent with the most basic definition of “establishment”: “[t]hat

which is established.” Webster’s New International Dictionary at 874.
14
See Memorandum for Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky, Acting

Assistant Attorney General, Office of Legal Counsel, Re: Use of GSA Authority to Accept Gift of Equipment at 5

(Aug. 3, 1993) (“the ordinary meaning of . . . ‘independent establishment in the executive branch’” as used in 40

U.S.C. § 472(a) “would seem to” encompass the EOP and some of its “principal components”); 3/15/77 Kneedler
Memo at 4.
15

See Memorandum for Files, from Daniel Koffsky, Special Counsel, Re: OSTP (Apr. 23, 1998);

Memorandum to Files, from Daniel Koffsky, Special Counsel at 2 3 (Jan. 9, 1998).

15

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 More recently, we have indicated that section 104(1)’s use of the term “establishment” is

not quite all-encompassing, but rather should include only entities with “[their] own structure

and unity.” 24 Op. O.L.C. at 65; cf. id. at 60 (“The use of the phrase ‘of an Executive agency’


imposes a meaningful limitation on the scope of the [Federal Vacancies Reform Act].”);

Memorandum for Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky, Acting

Assistant Attorney General, Re: Use of GSA Authority to Accept Gift of Equipment at 5 (Aug. 3,

1993 (not clear “whether more ad hoc and less formal entities under the EOP would meet this

definition”). This approach is consistent with that of the U.S. Court of Appeals for the District of

Columbia Circuit in addressing the meaning of “establishment” as used in FOIA’s somewhat

different definition of “agency.” See Meyer v. Bush, 981 F.2d 1288, 1296 (D.C. Cir. 1993)


(“FOIA, by declaring that only ‘establishments in the executive branch’ are covered, 5 U.S.C.

§ 552(e), requires a definite structure for agency status.”); Armstrong v. EOP, 90 F.3d 553, 558

(D.C. Cir. 1996) (“a definite structure may be a prerequisite to qualify as an ‘establishment

within the executive branch’”); see also Memorandum for J. Michael Farren, Deputy Counsel to

the President, from Steven A. Engel, Deputy Assistant Attorney General, Office of Legal

Counsel, Re: Whether the Office of Administration Within the Executive Office of the President

Is an “Agency” for Purposes ofthe Freedom ofInformation Act at 2-3 (Aug. 21, 2007).
The legislative history of section 104, which was added to the U.S. Code as part of the

codification of title 5, see Pub. L. No. 89-554, 80 Stat. 378, 379 (1966), does not shed much light

on the question. But the amendment history of section 3110 suggests that Congress intended

section 3110 to bar appointments to a broad range of Executive Branch entities. Introduced in

the House as a floor amendment to extensive legislation for the revision of postal rates and

salaries, see Postal Revenue and Federal Salary Act of 1967, Pub. L. No. 90-206, § 221, 81 Stat.

613, 640, section 3110 as adopted by the House prohibited the appointment of relatives to

positions in the appointing official’s “Department,” meaning “each department, agency,

establishment, or other organization unit in or under the . . . executive branch.” 113 Cong. Rec.

28,658 (1967) (emphasis added). When the bill was reported out of Senate committee, that


definition had been replaced with the current language referencing the official’s “agency,”

defined to incorporate the title 5 definition of “Executive agency.” The rationale for the change

is unclear

the legislative history suggests it was intended to allay concerns that the original


definition of “Department” included military as well as civilian entities, see Section 3110
Hearings at 363; see also 5 U.S.C. § 104 (excluding “military department” from definition of

“independent establishment”) but there is no indication that the purpose of the shift from

“Department” to “Executive agency” was to limit the application of the prohibition to a smaller

subset of civilian Executive Branch entities.

In accord with our broad reading of “establishment,” we have repeatedly advised that

particular advisory committees constitute establishments for purposes of sections 104 and 105 of

title 5.16 For example, in concluding that section 3110 would bar President Carter’s appointment

of the First Lady as Chairperson of the Mental Health Commission, which was a federal advisory

committee, see Exec. Order No. 11973, 42 Fed. Reg. 10,677 (Feb. 17, 1977), we observed that

16

We have observed generally that “[a]n entity in the Executive Branch may be both an advisory

meaning of 5 U.S.C. § 105.” 1984 Fine


committee within the meaning of FACA and an executive agency w ithin the
Arts Memo at 5 n.4.

16

Document ID: 0.7.13767.6796-000005

 Mental

Health Commission Memo; see also CPSI Memo (stating that the reasons for deeming the

Mental Health Commission an establishment would apply equally to the CPSI). We also have

concluded that another FACA advisory committee, the Commission of Fine Arts (“Fine Arts

Commission”), is an establishment for purposes of section 104,17 and we have suggested that the

Advisory Board for Cuba Broadcasting “probably qualifies” as one as well, Memorandum for

Files, from Daniel Koffsky, Special Counsel at 2-3 (Jan. 9, 1998). See also 6 Op. O.L.C. at 293-

“[t]he comprehensive term ‘establishment’ would clearly cover the [Commission].”

95 (concluding that the Hatch Act, 5 U.S.C. § 7324 (1976), which applies to “[a]n employee in

an Executive agency” as defined in section 105, applies to Native Hawaiians Study

Commission).

In addressing the status of the Fine Arts Commission, we saw “no question” that the

regardless of whether it was engaged in its “advisory function” or making

“substantive, binding decision[s]” “is performing functions constitutionally committed to the

Executive Branch and, as such, is an executive agency within the meaning of [section] 105.”
Commission

1984 Fine Arts Memo at 5; cf. Memorandum for Charles H. Atherton, Secretary, Commission of

Fine Arts, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re:


Application ofExecutive Order 11988, entitled “Floodplain Management,” to the Commission

of Fine Arts at 2-3 (Nov. 14, 1980) (“1980 Fine Arts Memo) (describing Commission’s functions

as purely advisory and concluding that Commission is an establishment because it is

congressionally created, composed of presidential appointees, and entirely financed by the

federal government).

Assuming an entity must have some degree of ongoing structure and unity to qualify as

an independent establishment within the meaning of section 105, we believe the Fellowships

Commission meets the test. The Fellowships Commission has a structure a formal

membership comprising special government employees and is unified in its ability to

deliberate and make decisions as a body. See Mental Health Commission Memo (identifying


fact that President’s Commission on Mental Health is “comprised of persons who will be

regarded as government employees” as among reasons that it is “clearly” an establishment)

(citing Exec. Order No. 11973, §§ 4, 7). To be sure, the Commission has a fairly skeletal

organization; functions as a body only on a small number of occasions per year; and possesses

relatively limited powers, even as compared to some of the other advisory committees that we

have deemed independent establishments. Cf. 1984 Fine Arts Memo at 5 (observing that Fine


Arts Commission is established by statute and exercises “both advisory and substantive

responsibilities”); Mental Health Commission Memo (observing that President’s Commission on

Mental Health is “authorized, through its Chairman, to conduct hearings and procure

independent services pursuant to 5 U.S.C. § 3109”) (citing Exec. Order No. 11973, § 7); Exec.

Order No. 11973, § 7 (providing for compensation of members of Commission on Mental

Health). Moreover, the Commission is a creature of executive order, and thus subject to

abolition at the President’s discretion, unlike a number of the statutorily created advisory bodies

that we have deemed establishments. See, e.g., 40 U.S.C. § 9101 (2006) (establishing the Fine

17
See 1984 Fine Arts Memo at 5 & n.4; see also Memorandum for Charles H. Atherton, Secretary,
Commission of Fine Arts, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re:
Application ofExecutive Order 11988, entitled “Floodplain Management,” to the Commission ofFine Arts at 2 3
(Nov. 14, 1980) (same); Letter for Charles H. Atherton, Secretary, Commission of Fine Arts, from Ralph W. Tarr,
Acting Assistant Attorney General, Office of Legal Counsel at 2 (May 20, 1985) (same).

17

Document ID: 0.7.13767.6796-000005

 Arts Commission); 22 U.S.C. § 1465c (2006) (establishing the Advisory Board for Cuba

Broadcasting); Pub. L. No. 96 565, title III, §§ 301-307, 94 Stat. 3321, 3324 3327 (1980)

(establishing the Native Hawaiians Study Commission). Nonetheless, in the context of the

present inquiry, we do not think that these differences suffice to distinguish the Fellowships
Commission from these other advisory committees, such that the Commission should not be

considered an “establishment.” In reaching this conclusion, we give particular weight to the fact

that the Commission was established during the Johnson Administration, and thus is now in its

fifth decade of continuous operation. Accordingly, it cannot be disputed that, in a most basic

sense, the Commission constitutes an established entity with its own structure, practices, and

history. Cf. Armstrong, 90 F.3d at 560 (contrasting entity possessing sufficient structure to


qualify as FOIA agency with “an amorphous assembly from which ad hoc task groups are

convened periodically by the President”); Meyer, 981 F.2d at 1296 (“The President does not

create an ‘establishment’ subject to FOIA every time he convenes a group of senior staff or

departmental heads to work on a problem.”).
We are aware of two judicial decisions that either hold or suggest that particular freestanding Executive Branch entities that are not Executive departments or Government

corporations are not independent establishments. See Haddon v. Walters, 43 F.3d 1488 (D.C.

Cir. 1995); AAPS, 997 F.2d at 905. Neither of these opinions affects our conclusion here.
In Haddon, the D.C. Circuit held that section 2000e-16 of title 42, which prohibits certain

discrimination in connection with “personnel actions affecting employees or applicants . . . in


executive agencies as defined in [5 U.S.C. § 105],” did not apply to a personnel action affecting

an employee of the Executive Residence. Id. at 1489. The court relied on two statutory

rationales. First, the court construed 3 U.S.C. § 112 (2006) which authorizes details from “any


department, agency, or independent establishment of the executive branch” to a number of

entities in the EOP, including the Executive Residence as “suggest[ing] that Congress does not

regard” the Residence to be an independent establishment. Haddon, 43 F.3d at 1490. Second,

the court deemed it significant that section 2000e-16 incorporated title 5’s definition of

Executive agency, since title 3 of the United States Code contains a provision that authorizes the


President to appoint and fix the pay of the employees of the Executive Residence “without

regard to any other provision of law regulating the employment or compensation of persons in

See Haddon, 43 F.3d at 1490.

the Government service,” 3 U.S.C. § 105(b) (2006).

Even assuming that the Haddon court’s reasoning is sound, neither of these rationales has

any bearing on whether the Fellowships Commission qualifies as an “establishment.” The only

entities that are grouped with the Executive Residence as possible recipients of details from

independent establishments under 3 U.S.C. § 112 and thus, in the court’s view, distinct from

those independent establishments are the White House Office, the Office of the Vice President,

the Domestic Policy Staff, and the Office of Administration. These are the same entities with

respect to which title 3 grants the President special authority to appoint and fix the pay of

employees without regard to other provisions of law regulating the employment or compensation

of government workers, see 3 U.S.C. §§ 105, 106, 107 (2006) the same special authority that

the Haddon court deemed significant in concluding that the Executive Residence was not an

independent establishment. Even if the Haddon court is correct that Congress wished to thus

signify that the named entities are not independent establishments for purposes of section 105 of

title 5, Congress expressed no such intent to similarly demarcate presidential advisory


18

Document ID: 0.7.13767.6796-000005

 committees not in the White House Office, such as the Fellowships Commission, which are

mentioned in neither 3 U.S.C. § 112 nor in any special grant of appointment authority under title

3. Congress may well have concluded that the President’s need to be free of title 5’s strictures in

appointing and paying the employees of the named entities did not extend to such advisory

committees to the same extent.
The AAPS court’s views are more on point, but we find the court’s brief discussion
unpersuasive. The court expressed “doubt that Congress intended” section 3110 to apply to

appointments to “the White House or the Executive Office of the President,” although the court

did not need to, and did not purport to, resolve that question definitively. 997 F.2d at 905; see

also id. (speculating that the President might be “barred from appointing his brother as Attorney

General, but perhaps not as a White House special assistant”). The only support the AAPS court

advanced for its tentative view were citations to Franklin v. Massachusetts, 505 U.S. 788 (1992);
Meyer, 981 F.2d 1288; and Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). These

decisions do not support changing our conclusion that the Commission is an “establishment” for

purposes of section 105. Cf. AAPS, 997 F.2d at 921 (Buckley, J., concurring) (“Viewed purely

as a matter of congressional intent, the [majority’s] argument that the Anti-Nepotism Act applies

only to the Departments and not to the White House . . . is a weak one.”).
In Meyer, the court held that the President’s Task Force on Regulatory Relief an entity

within the EOP was not an “agency” subject to FOIA, 5 U.S.C. § 552(1), because it was not a

body with “substantial independent authority” to direct Executive Branch officials. 981 F.2d at

1297; see also Citizens for Responsibility and Ethics in Washington v. Office of Administration,

566 F.3d 219, 224 (D.C. Cir. 2009); cf. Soucie v. David, 448 F.2d 1067, 1075 (D.C. Cir. 1971)

(stating that if EOP entity’s “sole function were to advise and assist the President, that might be

taken as an indication that the [entity] is part of the President’ s staff and not a separate agency”

for purposes of the Administrative Procedure Act, 5 U.S.C. § 551(1) (Supp. V 1970), which at

the time defined an agency as any “authority of the Government of the United States”). That

holding is not of direct relevance here. It may be the case that the Fellowships Commission,

which is charged solely with advising the President, would not qualify as an “agency” for FOIA

purposes. But see Letter for the Honorable Abner J. Mikva, Counsel to the President, from

Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel at 1 (Mar. 10,

1995) (noting that “[t]he Commission considers itself an agency subject to the Privacy Act,”

which incorporates the FOIA definition of “agency,” see 5 U.S.C. § 552a(a)(1) (2006)). But we

need not resolve that question for present purposes, since the Commission’s status under FOIA is

not dispositive of whether it is an Executive agency within the meaning of section 105. FOIA’s

legislative history is “unambiguous” that “‘the President’ s immediate personal staff or units in

the Executive Office whose sole function is to advise and assist the President’ are not included

within the term ‘agency.’” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S.

136, 156 (1980) (quoting H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess. 15 (1974)); see also
Meyer, 981 F.2d at 1291-92. At least when it comes to such entities within the EOP and

analogous entities outside the EOP that are “responsible directly to the President and assist[] him
by performing whatever duties he may prescribe,” Sweetland v. Walters, 60 F.3d 852, 854 (D.C.

Cir. 1995) the definition of an “agency” for FOIA purposes is plainly more restrictive than the

section 105 definition of Executive agency. See Armstrong, 90 F.3d at 558 (“not every

[Executive Branch] establishment is an agency under the FOIA”). As suggested previously, see
supra p. 16, there is no legislative history for sections 104, 105, or 3110 that is comparable to


19

Document ID: 0.7.13767.6796-000005

 FOIA’s legislative history, and thus there is no support for construing their ambit to be similarly

limited.
In Franklin, which the AAPS court also cited, the Supreme Court “[o]ut of respect for

the separation of powers and the unique constitutional position of the President” declined to

subject the President to the Administrative Procedure Act (“APA”) absent “an express statement

by Congress,” 505 U.S. at 800-01. See also Armstrong, 924 F.2d at 289 (relying on clear

statement rule in concluding that APA does not apply to the President). We have previously

invoked this clear statement rule where “application [of a statute to the President] would involve

a possible conflict with the President’s constitutional prerogatives,” Application of 28 U.S.C.

§ 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350, 351 (1995); but the

rule does not affect our construction of section 104, section 105, or section 3110 as applied to the

Fellowships Commission. Congress defined “public official” in section 3110 expressly to

include the President. 5 U.S.C. § 3110(a)(2). And although the definitions of “agency” in


section 3110, “Executive agency” in section 105, and “independent establishment” in section 104

do not expressly include entities charged solely with advising the President, for the reasons

discussed previously we do not think that the application of the prohibition to bar presidential

appointments to such entities raises significant constitutional concerns. See supra pp. 8-9; see

also 19 Op. O.L.C. at 357 n.11 (“The clear statement principle . . . does not apply with respect to

a statute that raises no separation of powers questions were it to be applied to the President.”).
Accordingly, we conclude that the Fellowships Commission is an independent

establishment and therefore is subject to the bar imposed by section 3110.18
Please let us know if we may be of further assistance.

David J. Barron
Acting Assistant Attorney General

Attorney:

18

(b) (6)

We have previously advised that section 3110 would not bar the President from appointing a relative to

an “honorary” position relating to an Executive Branch entity, so long as the appointee remains “sufficiently

removed” from the entity’s “official functions.” Mental Health Commission Memo at 1; see also 2/17/77 Kneedler
Memo at 7 (honorary appointee could attend entity’s meetings or hearings, submit ideas for the entity’s

consideration, and offer and solicit support for the entity’s work). We have not independently examined this

question, and express no view on the status of “honorary” appointments under section 3110. Even if they are

permissible in cases where an appointment otherwise would be prohibited, the involvement of a nonemployee with

the work of an advisory committee would potentially raise independent legal questions, requiring careful

consideration, relating to the application of other laws, including FACA, FOIA, and the conflict of interest laws.

20

Document ID: 0.7.13767.6796-000005

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File~

Bdwi~ ~- kneo<l~
()ffice 9f ~gijl.·Co\mt-ei

~p}!o!n~t of: ~pai<'l~t.•.~- son.:to

~ouse·.O.J;flcc .

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~o~t~i9n ~n' the ·Wpi~e;

.John•M. .Harmon·

Acting:· issi_o ~t..At~olrllcy ,G~er~l
Offices· of, L.c ~ai ~o~~ul. . ·.

~rg~~e~. ~e~eruia, D..ej>u1;y couna~l .t o ~e ·Pr~sta~t,. ·.
r~ues~ed .QUX' -vi~s· on :,ihether -t:1:10 Pr¢sidcnt ,i~ :P .r~hibit¢d
t:,y 5· .tJ.s.·c . 'f ·:3i19 _,fi:~ app~inting his con to- µnpaJ~d.

*ti

.position .(µl the .W pite Hquse :staff;.. ;t1; is my c~alµ~ign
th!,l.t tµ.e· .s-~a~to- _problbit;s tho t;pn~~L1~ed
·appoin~ent·.
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:v t~qd: DOtig ~ut:~,. ~·s s~~t~t¢ ~oµns~t t~. ~e~ ·fie~.i df!nt, tlutt:
·~i~ s_am.e stattitC3' prohiblt:ed ~e Pr¢s~dcnt £t;6rii ~PPJ>inting·
,i#s. :~~t~i:4 ~q J>~ ~1;rp~~s~ of; ~1:.ie r~~_c ntiy· established·
. Commis~~9~ .otj. ~enp;tl :nc:ilt~. .~-s ·Ms_
. Mc:~~a pointed ..O\lt
to mq1. :~ numf?cr of" ~e c~lua~~ "tn ~ur Fabi:uary 18 .
ci~or~~41.Ull are· c~trafy ~<?-' ~os~ c~ressc4 ·by ·C~l F • .~oC?.d"""
·~n, .~~oriil c_~uns~i 9£.' tij~ .civ11.s~ce•·<;pi±nis~i9ri, iti ·
hi~ l~tt~~ .pf. ·n~e·emb~~.28 t~ Mr•. .~~bact B~rtpa~,, ~a~itic;in
· Diccct'or. . for the·.·Vice. :Prcsi:ctent. x.··11ad review~ Hr. :Good~

· ·m:in.•·s ictt~r ·t6:-~r... n~i:-man~i:~ ·c.0111:1~ti90 ~th. tpo proposed.
)appoin~ent, of·*P• -Car~~r. .·However, -n~· ~ •. ~~~-• s · ..

·requ~s,t:, -t bnva aga;ln consi~e,;c~ ~e poi;nt~ r.4~,1~ by .Y£t-•.
.qood~~ to- d¢t;c~~ wlt~~~er :t:;~ey- shoµld alt~~ t\ie ·cpncl~sion
-r~.c h¢d :in ·QUr F~brw:iey· la lli~~an~ or p~t :~~-.iippoint•
:~~~ 'o; d.}c PrestC:t.cnt;•~ son· h~6. A~t~r dot~ so,, i fj~1ievE!
~tt ·ou;- -~ arlier ·1ntcrpr~~tj.on wa~ cor:roat~ ·
· ·

The. Civii-SetvicoCommission•s lotter advancoa three

· po~si~_le ;:i~mimct1td in ~pport of it¢_·isosition tbi_lt

t 3ltO

·f u.s.•c.

cDn ~e ·cono~~d- t9 ~e ;~ppit~~lc to~ppo~ntmcnt&
·t;~ d>,e _p~ts~l. ~.taf;s of th~ ~r~siqel)~ ~:nd Vice ~ctd.~~t'.
Fir~ti ·tha C~isoi~, .s~~cs~~ .~t;· $_U.$.C~ -~ .3).10 i~ -

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inapp_licab1e to ~c PJ:cs~dcnt' s ond Vice President's sta;f
by vir~~ ~f li~go in tho ·'E~ccutivc- Offico .Appr~prlationa
Act o~ 1"!77 permitt:L~ tha-President .a nd Vice Pro:sidc:lt:tc) ol>tain pera9nal pf;ll:Vicas ''~tbout r~ard to -th~ pro•

vision:i of ~w ~C3Uitttit13· ~e .e:nployµlont ~nd compcnsati~
of pci:s~s in th~ GQ.vornm~t· servi.ces. •t ~O ~tat. 9.6.6 . Wa.
spt;lCifienlly consid~~ca. ·nnd rcj cctcd this argument in con• ·
ncction with-Mr~. Cartc~•s ~roposed ~ppointmcnt.
As pointed- out ~t page~ S-6 ~rnnclum o_n ~s.

qe~to:r•-~ oppointccnt, which 'you ·a e~t '.t o Dou3 l!uron, Chairman.
?I.icy o; tha Civil. Service· Conl:11.ssion inform~· tha Senate
Comittae-8url~-hc:irfn3s.o~ t~e·provioion 'la~er enacted
.as S -u.s.c~ § ·3 110 that bad it. bean in eff~_t , thq section
would. ha.vo prev~tcti frcoidcnt Franklin }l.OosOV'olt:. from appoint:i.aj ·his son as a civilian White..Housa aide, as President
Roo·aav~lt, ap~rcntly had .don~.. Hearings· on Fcdorttl t>a:z
Lcp,!slation 'bafora the Senato c·o onittca on Pont Offico Md
Civil Scrfiico, · 90th

~~• ,

lot: Scsa. 36(j (1967).

?io mcmbc~

cf tho c~tteo ·prescnt a~ the ·~ cndngs di?ograed with
thls concluaion. Chnirman· Macy even suggested that; aa a

_mattor -of· policy, tha pr~hibition ch(?Uld be mada .altogathor
inapplicable· ~to ~a •P rbsidcnt in o~~ to pres~~- l>r9dd
Prosid6ntinl dincrction in .m:iking appolntcente.
I

!.

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In ~c fac~ of· ~-~ ~m;cstion to

exempt the· President
and Chni;,nan Macy's statement that- the p~~bitiqn:·would
apply to th~ Prersidcnt•·s porsom.tl .otoff, the\. Scntltll COin-mittco chose to acieru, · the Houoc bill e,cpres_s ly -to ~ncltide
the Pl:~sido~t amore -tho-·"public· officiala'• covered by the
bill (tha Prctiidcnt; '<t3S not: c;xprosaly montionQd. in the
.17.ouse va~!JiQn),. ~d_t~e bill wa~ enacted #t this fo~.
~h~

senate Hearings contain the-only cxtondcd discusoion ·o f the:\ p~sicn ~d tlla ~ly ,discussion ~t all:
o~ its 4pp1~catiott to tho Pr~sidcmt, it ·GO(?:l, ·~p2roprinte

Uc~uso

to attach pa~ticulJtr significance to; -tho·n1yt1 nerncc
.
Coctiission' a int~rprotatio~ of tho st:a~tc iit tho c~so
of tho hcarln3s. Ii: io .rcasonoblo tQ aosu::io that ~he
.
Sc:ntJto. Cotci::lf.tteo and eventually tJla Qori,zro,ao oetcd on ~ho-

:b;iaia of

c~irman ~cy1 s interpretation of the _p rohibition

a• d1!'af~cd.

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Document ID: 0.7.13767.6796-000006

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The ia~ge :ln i;hd: ~pproprl.nti~ fo'i!· ~he ·1v1d~e-.~u~~
Qf~i~o. £:c;,r fiscal y~r +977:; pe~~t~S-. -tho. -} !r~µid~t ;o·
obttii1': personal ser\."ic.ca. ·,~~thout; ;r~gard t~ th~ -pro#~1~8
.of l.n~t 'l:Catj~.t i03 t;bo. -ciripJ.o_;ment;.,. tind cpaipcnsat~~n o~ -P~Scn:itf·. _
in .Gov~:i-~ t. ser#,c;:c,!' -t9~tf ill,;,o. ·c on~inad· ·in -~o ~pptop~.a~lon _fo~ -t:1-:t.e. .~t;e UouQ:e Qffico J~·~f;s¢al j~67,. t'b:~ .Y91Jr
·iii which µ~ s"'c. § 31.to· wao crl:lctcd. 81 s·t at. 117., ~t
appears. to hnvc b~cn- ~a-~ ed forw:i;-q· ~om.:,;,~o~ y~rs: with•_
_ ou~ c~m::nent. . There; -i:$' t l o ~ in the-legislative histo~
of 5 Vio·s-..c•. ·§ ~119 -~~ :$b;eds. ~Y .l~h~ ~ ~e int;craction·
.o~ that_section *nd thd -~ g e iti-:~ White llo~$.e Qffic~
approp~iat~, quot~: a~ove~ _-Bow~cr,. ~i~ho~gh th~ qttesti~n
is .n ot "3holly· .freE\\ of dg\;lbt (in ~ow: of -the :broad .~ag~
in _:thQ appr91>~Ja.t~Qn-.foi; .tho Whi~e-lio~se. Office),· $.t is my ·
Qp~9_n ~t;' .the ripeci~tc. .pro~bi~_
i on :s.hqul~ .~a. construed
.to. be au: .~ ccption to ~ s~~~al rtjl~- tjla~- ,i ~ts~~~-s on
ctjlp1.,~yrnen!:, do·-~ot. apply tq the ~te· -Jt9u~~: Office.~. *s the
.supreme. co~t rec.e ntly ·sta~'c4. "~t 1-~ -~ btr~:tc pr~nciplc ~f
~~n.t u~Qry: c~st~~ti~ t:tuit .a s~~ta. dealt~ with· a; nn~~w_.

s

ptcc~sc, · @lid sp~i-;ig·. ~ubject· l~ ·nQt ~~Ot'Sc4 P.Y ~ .~t~r ·
-~ ctb:d- s~ptt?. covot!ns -a. moris gcnc,ro1tz·ed spcct~._n ·
RndS!.anowor v. Touche Ross.& Co. ," .-42~ -U.-s~ ,148~, 15~ '(1976)., .
Horo ~this ~la. has -cven_·grcat;cl:'.·'foi;ea,. becn~sb .althoug~ tlto
·lnugwig~ in the cu~ent lihito jlo,.ssii. approp~aticn -io ''lat~~
·· enactc<Ji.•r ~t· lµts s:ti:lp1y .);e~- :c am~:-£~~1~rd. f~pm acts p;.e~
dating·. tho J?as~c_Qf.' 5 .. -U.s.·q.

§

$_l;1Q.-.

·. -_ _ .. ·

_

a~~:

. -~e~·~ee9n~
s9~c~d-by ·tl_ig d._lvil. :S~<;_e ~om• ·
=nd.s"Sion -f s .b ao.c d on: th~' -lnnguage i~ S 11.s.c. $ 3110 tl.Jae ·
piohibit~ ap~in~ciits ·to .a c:i.~liail p~sltion· ~n an ttag~ct'·
oyor ~hich the oppoin4~ ~~~ic~al hns coti(:rQi. ·I ~ the
~otilm~ss_
i o~l~
Rh~l~ a9'1Ila. c0taponent~· within- ~e ,~ccu•·
tivc: Q~fiC;e of ,thQ -Prc~i~cnt -tn.!l~-.p rope~ly be v:i~pd l!S
11
.Executiv~' -~genc;ios.n t}i9. :p reaid~t• ~ p~rsonnl s~~f~ -wo~i:d
~ot.. :t;~ ·t.ho .. t~ce .o;· the. evid~ncc of -1~1slatiV'e: 1iiitent• .
discus~ed' ~bo:v.e. :to S:PP~Y ~a. ·pro~'bJt,icm· :~ ·-the PresidO!lt' s
_p9rsonai at~ff, .I ·do nqt .believe· t:11at tlt~ t ~ "~~utf.ve

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Document ID: 0.7.13767.6796-000006

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.ogcney"·-Cl3Y p2;op0rly be col1!1trued in such n nnrrow faohio~.
lt is not npp:11:l!llt ·t ¢. me ~by the ibite House Offico or tho

entire Executive Off:J.co of tho F:rcddcnt cannot be ~oliflidarcd:
t,9 b~ .t~e ~ppropi:~t·es ."?xecut~ve. a~oncy0 ~dor 5 .11.-s.c. ·

J· 3110(a)(l),. £f• s-u.s.t~- S .S S~(e)

(1975 Su_pp.).

.

1itl31ly. tho Civil service Com:dsoion -su3'8oata that
thcr~ might. bo aeriou$ conotitutionnl questions· involved
~n intctprctin3 the sentuto to apply to ~ppointmanta to- the
Proof.dent: or Vice Prcoidcnt' s staff. t believe thi~- nrgu•
nient is. of c:lubioun. validity. 'Xbo c;asco. the..Comiasion citQS
in cupport of tho prop~oition ~ca1 with tho pow~r of -a Q~~rt to conduct ·o poot: hoc ..e.\u1mination of the t:otivca behind n

spQCific ~pp~:lntclent cado .by o Stattt o'f'fici.41 in ·whom tho
discretionary power of appointcicnt io vented. Mayor v~
Educnt!onal Egwiltty Lenggo. 415 tr-~·-· ·6()s_, ~13-14 (1974);·
1

Jones- v. ·Wallnca. 386 F.. Supp. ~15 (M.D. Alo_•. ·1974), aff d
S33 F.2d 963 (St:h C:f.r. 1973). · tteithor case nddrooseo ·t ho
.P ~er of ~:he ·t eitslativ~ llranc1l, of the Fedo~~l Govcrnmci;i~
t~ es~~l.$.oh _thc qualificat~ons ,n~c~~oar_y t~ hold a· po~~1;_ion in tho Pedotal Govcrm:ient• wht~ irr-tho pu;posc o~ 5
u.s~c.,. § 3110. The political ~nd prac_tico1 diff~cultics
~Jttl· potent~l for .e---~prrnsatll:ilt to a coordf:1•J:o 'branch 1n•

ho.n,nz itui~ court'~ second•gµcsoinz of a. spccifi~appoint-

.c ent by an elected officiol 11ra obvious. But those -abma
proble:ao do. uoe ~st in q0Dc,~9os.• esblblisbi~ tho thrash•
hold qualiftcationa ,of tha. perso:is from whom t,hg ~on:ldent
~Y oeiect. in caking· a particult,lr appointment. This is _
cs~
pccio.lly true ~arc, as-Jtorc, the effect of ·t11~ qutili.ficntion require:ncnt; fttS t~- eliminate-only a handful of _pori:ons
from tho ·ppot Qf poas~blo t1ppo~tQos..
·

lt io gcncra11y thought that qongrqGs docs not. $.cz,~r,misoibly invade tno Pr~sidcnt' s coxwtitutlonnl p~cr -ofappointmcn~ by ·ostablishin,3: quallfi®tions for.an ~ffice
i:,J; _
pos$,t1oa to which tho Prosf.ctcnt tukes ~ppo~tccnts. B.
Cotwin.1 Tho heoident, Offico nnd P«tor~1 1707•1957 (1957)·,
~t PP• 74•75~ z p¢c no :reason why tho 11.nd.tation in :s u~ s.•c~
§ 3110. should stand on it different' footing. In feet, in
-~ mc.:oi;o~~w:a dated· tJovcml>cr 14, 1972·, .fJ:Om Aa$ititanf: _A ttorney
-- 4 -

Document ID: 0.7.13767.6796-000006

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G~noral :Roger
Graotoli tQ~Jo~ ~can·, Cou~scl to th~.
PJ;-ooidcnt; .(COJ)7, ·nt:ti}chcd) .• . thl:,_a .o ffic~ took the eo.o i~ion
thdt 5 u.s.c, S 3110. prohf.bitdd .~ a Presi4ent from•ap- ~inti.113 a roliltivo t,:, :~· ·ecm~orpry o,r .p emn~t: position
on ·thg ti-".ldto ~oiss~ sta~~~- _,:be xn~rancfµm ~oted ~ t ~~~­
ever ~'&c. const!.~t~mui,._ ,diff~cuJ~ic_;; ,iit .appl~ thd

~~-tj.1~9 wh~ _~lie Prialdcnt ~~~is~s hts! nutJi9rity under-/):rt!c:l:e i~t ·soc~ion 2 of the Con~ti~~~on· ~o awout· tt<?(f~c$rs.

o~ #hc1 U~tcd· ~~_tcsn ~-- .su*:h a.s cabin~t: or. o~µ~r. highl~vol officials -~~- the .statut_
a s~CtJi~c:l" clea'.t'1.Y ~o--~pp~y
to oubo~~at~ po~itip~tt on- tlic. J~tQ }Jouo·a · st;aff'. :i1hicll·
~1;11i within the cat:~g¢>ry .9~· .~~i:io~ 9ff;cers · Qt Qi:ip,-oyoen
JNbj ~ct. to co~r~Qiot\til,.cqnttol:.
-,.

For -the forego~ -~cas:~~-- _
i t is iii c~clu$Jon -~ tu:
$ 3110 pl:'o~.~1.to .tho: .~re~f:cl~t: from . ~pp9i'.lli:"11g
~s sont t;o ,4 ~te Hou~~ ~taff posi~on.· ·A~ po~~ed. out
in• our !:!cmor4ii~ of F'~~iirr .\8- rQZn~d$..~ Mrs·. Ce;i:tcr•.
it ·makes no
·p~sat~011_
. difference
... - --. that:
.. - he
-.. would'
- .serve
. . without com..
- .

.s u.s•.p.

,:

- 5 -~

Document ID: 0.7.13767.6796-000006

 __
d_oL_c_
, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
From:

(b)(6)

!

(OLC}

To:

Thursday, January l 9, 201-7 3:03 PM
(b)(6) . (OLC}

Subject:

opinion for citecheck

Att achments:

Section 3110 to WHO opinion 1.19.17.docx

Sent:

Dan said we should go ahead and start citechecking now. I'm giving you the current version, which is in
redline with comments, but it'd probably be easiest if you made your changes on a hard copy.

Document ID: 0.7.13767.9028

 __
d_oL_c_
, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
From:

(b) (6 )

!

(OLC}

Sent:

Thursday, January 19, 2017 8:57 PM

To:

Koffsky, Daniel L (OLC}

Subject:

RE: Section 3110 to WHO opinion 1.19.17

Attachments:

Section 3110 to WHO opinion 1.19.17.docx

At long last, here is the post-citecheck redline.
From: Koffsky, Daniel L (OLC)
Sent: Thursday, January 19, 2017 3:54 PM
(b) (6)
To:
! {OLC) •
Subject: Section 3110 to WHO opinion L19.17

lt;JIGII!: I've noted a few changes; otherwise, this looks fine.
--Dan

Document ID: 0.7.13767.5988

 Koffsky, Daniel L (OLC)
From:

Koffsky, Daniel L (OLC)

Sent:

Friday, January 20, 2017 10:48 AM

To:

Gannon, Curtis {OLC)

Subje ct:

Draft

Att achments:

Section 3110 to WHO opinion COMPARE 1.19.17 to draft 11.docx

(b) (5)

Curtis: I've made a few edits in this redline.

(b)(S)

If I'm able to sign the opinion this afternoon, I'd like to send it to Peter Carr at the same time I send it tofor posting.
(b)(S)

--Dan

Document ID: 0.7.13767.32905

:

 Gannon, Curtis (OLC)
From:

.,,..

Gannon, Curtis (OLC)
Friday, January 20, 2017 11:17 AM

Sent:
To:

Subject:
Attachments:

Fwd: Draft to print

Section 3110 to WHO opinion COMPARE 1.19.17 to draft 11.docx; ATT00001.htm

It would take me a fe w minutes to log back in here. Could you please print this draft for me and I' ll
come back with the other folders for the EOs ?
Thanks,
Curtis

Begin forwarde-d message:
~

(b) (6)
Date: January 20, 2017 at 10:47:42 AM EST
To: "Gannon, Curtis (OLC)" ~
(b) (6)
Subject: Draft
From: "Koffsky, Daniel L (O LC)"

Document ID: 0.7.13767.36814

>

 Koffsky, Daniel L (OLC)
From:

Koffsky, Daniel L (OLC)

Sent:

Friday, January 20, 2017 2:57 PM

To:

Gannon, Curtis E. (Ole);

Subje ct:

See

Att achments:

Section 3110 to WHO opinion draft 12.docx

(b) (6)

i

(OLC)

(b)(5)

Curtis: I've t ried something along the lines we discussed. I broke up t he long sentence we were
considering, but what I wrote needs some editing.
(b) (5)

As I thought,

(b)(5)

·?)

--Dan

Document ID: 0.7.13767.5897

 Koffsky, Daniel L (OLC)

From:

Koffsky, Daniel L (OLC)

Sent:

Friday, January 20, 2017 3:07 PM

To:

llllllll:>Dmlll (0 LC)

Subject:

RE: Section 3110 to WHO opinion 1.20.17

Okay, I made that addition.
From:~
(Ole)
Sent: Friday, January 20, 2017 2:19 PM
To: Koffsky, Daniell {OlC} •
(b)(6)
Subject: RE: Section 3110to WHO opinion 1.20.17
(b) (5)

So the citation should read:
(b)(5)

From: Koffsky, Daniel l ( Ole)
Sent: Friday, January 20, 20171:59 PM
To:
: {Ole} •
(b)(6)
Subject: RE: Section 3110 to WHO opinion 1.20.17

•

Okay, thanks, t:>J(!JI
From:~
jOlC)
Sent Friday, January 20, 20171:55 PM
To: Koffsky, Daniel L (Ole) •
(b)(6)
Subject: RE: Section 3110 to WHO opinion 1.20.17
(b) (5)

Sorry for not catching this before, but

(b)(5)

So maybe we could change the sentence to:
(b) (5)

From: Koffsky, Daniel L (Ole)
Sent: Friday, January 20, 20171:38 PM
To:
•{Ole} •
(b)(6)
Subject: RE: Section 3110 to WHO opinion 1.20.17

Document ID: 0.7.13767.5887

 From:IIIIIIIIDDmlll (OlC}
Sent: Friday, January 20, 20171:37 PM
(b)(6 )
To: Koffsky, Daniel L (OLC) •
Subject: RE: Secti on 3110 to WHO opinion 1.20.17

-

(b)(5)

On p.5:

S hould that be 1

(b) (5)

''?

From: Koffsky, Danie-I L ( OlC)
Sent: Friday, January 20, 2017 1:19 PM
(b)(6)
To:llllllliDDmlll• (OLC) •
Subject: RE: Section 3110 to WHO opinion 1.20.17
Okay, thanks.
From:
(b) (6 )
(OLC)
Sent: Friday, January 20, 2017 1:19 PM
To: Koffsky, Daniel L (OLC) •
(b)(6 )
Subject: RE: Section 3110 to WHO opinion 1.20.17

(b) (5)

One other suggested change in that part.

maybe change as follows:

(b) (5)

From: Koffsky, Daniel L (OLC)
Sent: Friday, January 20, 20171:07 PM
To:
i {OLC) •
(b)(6)
Subject: RE: Section 3110 to WHO opinion 1.20.17
I'll

(b)(5)

' in the curr ent version I'm maintaining. Thanks.

From:IIIIIIIIDDmlll ( OlC}
Sent: Friday, January 20, 20171:05 PM
(b)(6 )
To: Koffsky, Daniel L (OLC) •
Subject: RE: Section 3110 to WHO opinion 1.20.17
Sounds good--thanks. I noticed one other issue

Document ID: 0.7.13767.5887

(b) ( 5)

 (b) (5 )

(b)(5 )

(b)(5)
, Or else we could change it as follows (or something similar):

(b)(5)

From : Koffsky, Daniel l ( Ole}
Sent: Friday, January 20, 201712:59 PM
(b) (6)
To:
: {Ole) •
Subj ect: RE: Section 3110 to WHO opinion 1.20.17

(b) (5)

(b)(6)
Fr om :
, (OLC}
Sent: Friday, January 20, 201712:43 PM
To: Koffsky, Daniel L {OlC) •
(b) (6)
Subj ect: RE: Section 3110 to WHO opinion 1.20.17

(b)(5)

(b) (6)
From:
•(OLC}
Sent: Friday, January 20, 2017 12:38 PM
To: Koffsky, Daniel L (Ole) •
(b) (6)
Subj ect: RE: Section 3110 to WHO opinion 1.20.17
Sorry, but as I was re-reading it j ust now

From: Kotfsky, Daniel l ( Ole}
Sent: Friday, January 20, 2017 12:17 PM
(b) (6)
To:
: {Ole) •
Subj ect: RE: Section 3110 to WHO opinion 1.20.17

Thank vou.Qlml:.

Document ID: 0.7.13767.5887

(b) (5)

 From:IIIIIIIIDDmlll (Ole)
Sent: Friday, January 20, 201712:16 PM
(b)(6 )
To: Koffsky, Daniel L (OLC) •
Subject: RE: Section 3110 to WHO opinion 1.20.17
Hi Dan- I noticed that the footnotes were formatted with different spacing. This version makes the spacing
uniform for all of them (single-space, with 6 pt. space after the last line of the paragraph). But maybe
will have views on this in any event.

Ill

From: Koffsky, Daniel L (Ole)
Sent: Friday, January 20, 201710:43 AM
(b)(6)
To:llllllll:EDlmli (0 LC) •
Subject: RE: Section 3110to WHO opinion 1.20.17

•O>JD

Thanks so much,

From:IIIIIIIIDDmlll (Ole)
Sent: Friday, January 20, 201710:43 AM
(b)(6 )
To: Koffsky, Daniel L (OLC} •
Subject: RE: Section 3110 to WHO opinion 1.20.17
Here' s the clean working version and the redline showing changes since l ast night.

From:IIIIIIIIDDmlll (Ole)
Sent: Friday, January 20, 201710:25 AM
To: Koffsky, Daniel L (OLC) •

(b)(6 )

Subject: RE: Section 3110 to WHO opinion 1.20.17
Ok, here are three files:

+a •-which is clean w ith all my latest changes

•

"Section 3110to WHO opinion 1.20.17

•

"Section 3110 to WHO opinion COMPARE 1.19 to 1.20 since the post-citecheck version I sent you last night

•

Section 3110 to WHO opinion COMPARE 1.20.17 to 1.20.11 changes I made this morning

- which is a redline showing all changes

•-which i s a redline showing only the

(b) (5)

Also, one more thought on

'?
(b) (5)
'

From: Koffsky, Daniel L ( Ole)
Sent: Friday, January 20, 2017 9:17 AM
(b)(6)
To:IIIIIIIIDDmlll• {OLC) •

Document ID: 0.7.13767.5887

 Subject: Section 3ll0to WHO opinion 1.20.17

Qml

I can't thank you enough for your work on this opinion. I accepted the changes you and .
suggested and then made just a few edits. Please review these. (One point may need explanation: I said

(b)(5)

I'm now thinking

(b) (5)

I think I should send something to Curtis by 10:00, but if you can't respond before then, please give me your
thoughts when you can.
Once again, a million thanks.
--Dan

Document ID: 0.7.13767.5887

 __
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_L_c)_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
(Ole)

(b) (6)

From:

Sent:

Friday, January 20, 2017 9:26 PM

To:

~

Cc:

Koffsky, Daniel l (Ole)

Subject:

RE: Attached Image

Attachments:

2017-01-20 - OAAG Koffsky - Appl of anti-nep stat to WHO (book}.rtf; 2017-0120 - DAAG Koffsky - Appl of anti-nep stat to WHO (book).pdf

,,ith

Okay,
the reversion
heads-up and (b) to post it live?

{Ole}; Gannon, Curtis E. (Ole)

(b) (5)

, is it okay for me (a) to send the PDF to P eter as a

--

(b) (6)

Office of Legal Coun~el

'I
From:
(b) (6)
(OLC)
Sent: Friday, January 20, 2017 9:21 PM
(b)(6)
To: Gannon, Curtis E. (OLC) •
Cc:
{OLC) •
(b )(6)
(b) (6)
Subject: Re: Attached Image

>
>; Koffsky, Daniel L {OLC) ,

(b)(6)

Sent from my iPhone
On Jan 20, 2017, at9:12 PM, Gannon, Curtis E. (OLC} •

(b)(6)

> wrote:

I think that means you can j ust revert to the 8:55 pm version. I'm sorry for making you create an extra
set.

From:
(OLC}
Sent: Friday, January 20, 2017 9:09 PM
To: Gannon, Curtis E. {OLC) •
(b)(6)
•

(b)(6)

Cc:

{OLC) •
Subject: RE: Attached Image

Revised versions.

- MPl
(b) (6)

Document ID: 0.7.13767.5637

(b)(6)

>; Koffsky, Daniel L(OLC}

 (b) (6)

Office o f Legal Counsel

,I

3

From:~
( o LC}
Sent: Friday, January 20, 2017 9:07 PM
(b)(6)
To: Gannon, Curtis E. {OLC} •
•
(b)(6)
(b)(6)
CC:~
(OLC) •
Subject: RE: Attached Image

>; Koffsky, Daniel L(OLC}

rn make it and recirculate one more time.
Drui, here is the relevant passage:

(b) (6)
Offi ce o f Legal Couns el

I

• •

From: Gannon, Curtis E. (OLC}
Sent: Friday, January 20, 20179:01 PM
To: Koffsky, Daniel L (OLC} •
(b) (6)
Cc:~
{OLC} •
(b)(6)
•
(b)(6)

Subject: RE: Attached Image
I think t hat's the l ast change,tllm
From: Koffsky, Daniel L (OLC)
Sent: Friday, January 20, 2017 8:58 PM
To: Gannon, Curtis E. {OLC) •
(b)(6)
(b) (6)
Cc:
(Ole} •
(b)(6)
•
(b)(6)
Subject: Re: Attached Image

Document ID: 0.7.13767.5637

>
(b) (6)

{OLC)

 I'm having trouble finding it, but

(b) (5)

On Jan 20, 2017, at 8:50 PM, Gannon, Curtis E. (OLC) ,

Document ID: 0.7.13767.5637

(b) (6)

>wrote:

 duplicate

 

Document ID: 011361563?

duplicate

 

 

 

 

 

 

 

 

 

 

 

 

duplicate

 

Gannon, Curtis E. (OLC)

From:

Gannon, Curtis E. (OLC)

Sent:

Friday, January 20, 2017 10:52 PM

To:

(b) (6)

Bee:

Gannon, Curtis E. (OLC)

Subject:

OLC Opinion

Attachments:

2017-01-20-anti-nepo-stat-who.pdf

Greg,
The opinion has been published on OLC's website:
https ://www.justice.gov/sites/default/files/olc/opinions/attachments/2017/01/20/2017-01-20-anti-nepo-stat-who O.pdf
A PDF is attached. We can send a PDF of the signed original on Monday.
Thanks,
Curtis

Document ID: 0.7.13767.37365

 __
:fo
_L_c)_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
(b) (6)

From:

(OLC}

Sent:

Saturday, January 21, 2017 2:18 PM

To:

~ {OLC); Gannon, Curtis E. {OLC}; Koffsky, Daniel L (OLC)

Subject:

RE: Typo in published opinion
2017-01-20 - DMG Koffsky- Appl of anti-nepo stat to WHO (book).rtf

Attachments:

If you, d like there to be. I haven't been slavish about preventing all lines from starting a number 1,vhen the
number is multi-digits; pushing "§ 2000e- 16" :in its entirety onto me next line will expand the spaces between the
words on the previous line. But we can play with the inter-character spacing of the paragraph in subtle ways to
achieve the same effect, without unsightly spaces between words on any given line. See attached_

(b) (6)
Office o f Lega l Couns.el
I

I

• •

(Ole)
Sent: Saturday, January 21, 2017 2:07 PM
To:
(Ole) •
(b)(6 )
Koffsky, Daniell (Ole) •
(b) (6)
Subject: RE: Typo in published opinion
From :~

>; Gannon, Curtis E. (Ole} •

>·,

(b)(6)

>

On p. s, third paragraph of part II, should there be a non-breaking hyphen in the citation to 42 U.S.C. § 2000e16?

{Ole)
Sent: Saturday, January 21, 20171:59 PM
To:IIIIIIIIDDmlll: {Ole) ~
(b)(6)
Koffsky, Daniell (Ole} •
Subject: RE: Typo in published opinion
From:~

>; Gannon, Curtis E. (OLC) •

(b)(6 )

.>·

,

l:ntil we acruaily put the opinions into the hard-bollll.d volumes, so that the PDFs are an image of those volumes,
we can pretty much always fix typos as we find them.

(b) (6)
Office of Legal Coun:.el

,J

From:~
{Ole)
Sent: Saturday, January 21, 2017 1:55 PM
To:IIIIIIIIDDmlll•{Ole) •
(b)(6)
(b)(6)
Koffsky, Daniell (OLC) •
Subje ct: RE: Typo in published opinion
T

t

._

f!"

.J •_..

1...

Document ID: 0.7.13767.5545

•

• (!'

~·.

>; Gannon, Curtis E. (OLC) •

< -

,.

(b)(6)

>·I

 1 JUSt

nxea rt, om u you see anymmg e1se, II s easy enougn to nx II agam_

(b) (6)
Office of Lega l Counsel

'I

From:~
{OLC}
Sent: Saturday, January 21, 20171:54 PM
(b)(6)
To: Gannon, Curtis E. (OLC} •
(b)(6)
Koffsky, Daniel L (OLC} •
Subject: RE: Typo in published opinion

~; ~ ( OLC} •

(b)(6)

I'm re-reading now, yes.
From: Gannon, Curtis E. (OLC}
Sent: Saturday, January 21, 20171:53 PM
To:~
: { OLC} •
(b)(6 )
(b)(6)
Koffsky, Daniel L (OLC) •
Subject: RE: Typo in publi shed opinion

•

(b)(6 )

lmIGa.

Thanks.
Is there a reason not to correct the version on the web? (If we might change that version, have
you proofread the rest and found nothing else that we'd want to do at the same time?)

Fr om :~
( OLC}
Sent: Saturday, January 21, 20171:49 PM
(b)(6)
To:~
: (OLC) •
(b)(6)
Koffsky, Daniel l (OLC) •
Subj ect: Typo in published opinion

Gannon, Curti s E. {OLC} •

(b)(6)

>·,

https:ljwww.justi ce.gov/sites/default/files/olc/opinions/attachments/2017/01/20/2017-01-20-anti-nepo-stat-who 0.pdf
Sorry to be the bearer of bad news-but there' s a typo in the first sentence of part I, p. 1. It says: Section 105
(a) of t itle 3 authorizes the President "to appoint and fix he pay of employees in the White House Office
w ithout regard to any other provision of law regulating the employment or compensati on of persons in t he
Government service," as long as the employees' pay is w ithin listed s.alary caps.

Document ID: 0.7.1 3767.5545

 ____
:fo_L_c..
) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
(b) (6)

From:

!

(OLC}

Saturday, January 21, 2017 2:54 PM

Sent:

(b) (6)

To:

{OLC)

Subject:

RE: Typo in published opinion

Attachments:

2017-01-20 - DMG Koffsky- Appl of anti-nepo stat to WHO (book).rtf

I fixed that here, and also tweaked the spacing in a few other paragraphs to lessen the disparity in spacing withm
t:.S.C. citations and also to avoid a couple other lines beginning with m.nnbers.

-(b) (6)

Office cf Lesa I Couruel

,I

From:
(b) (6)
(Ole}
Sent: Saturday, January 21, 2017 2:42 PM
(b) (6)
To:
! (Ole} •
Subje ct: RE: Typo in published opinion

Footnote 6 on p. 12, the third citation in the string: the numbers are transposed in the pincite:
See 113 Cong. Rec. 36103 (1967) (statement of Sen. Randolph) (indicating that the Senate amended the
provision "to plug any loopholes which might exist," because "(i)t was critical that the nepotism provisions
be applied across the board"}; id. (stating that "[w]e could not stop at a certai~ oint in formulating a policy
on nepotism" and "had to apply the policy across the board"); id. at 31603--04 (should be 36103-04)
(suggesting that "the White House believes, as does now the Congress, that a nonnepotism policy should
apply equally to any branch of Government'');
(b) (6)
From:
, {Ole)
Sent: Saturday, January 21, 2017 2:30 PM
(b) (6)
To:
: (Ole}
Subje ct: RE: Typo in published opinion

Yes, rve noticed that in other published opinions--same thing happens with hard spaces within ellipses that don't
end up near the edge of a line. I haven"t worried about it for the most part because it' s generally pretty subtle.
Sometimes ifs noticeable enough that I take the hard spaces out.
Ko, there isn't an extra space before the footnote 3. I can see that Adobe Acrobat seems to expand the space
ever so slightly before the footnote numbers in creating PDFs, but it' s a uniform effect.

WJU
(b) (6)
Office of Lega l Couns.el

'I

(b) (6)

Document ID: 0.7.13767.5520

• •

 (b) (6)
r-rom:
\UL\.-/
Sent: Saturday, January 21, 2017 2:23 PM
To:
(OLC) •
(b ) (6)
Subject: RE: Typo in published opinion

Got it. What you attached looks good to me,

(b ) (5)

One more, though: On p. 7, fi rst full paragraph, the line that ends "undergird this conclusion"-is there an
extra superscript space before the superscript 3? Can't quite tell.

From:
{OLC)
(b) (6)
Sent: Saturday, January 21, 2017 2:20 PM
(b)(6)
To:~
: {OLC) •
Subject: RE: Typo in published opinion

(b) (6)
Office o f Le.ga l Counse l

'I
(b)(6)
From:
(Ole}
Sent: Saturday, January 21, 2017 2:07 PM

Document ID: 0.7.13767.5520

 duplicate

 

Document ID: 

-~(_o L_c..) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
(b) (6)

From:

i

(OLC)

Sent:

Saturday, January 21, 2017 3:05 PM

To:

Gannon, Curtis E. (OLC);

Subject:

RE: Typo in published opinion

Attachments:

2017-01-20 - DMG Koff sky-Appl of anti-nepo stat to WHO (book).rtf

(b) (6)

· (Ole); Koffsky, Daniel L (OLC}

I t shows up on my computer, but Pve given up trying to figure out why new pages show up at different
times on different devices. Caching isn1t a complete explanation. In any event, it will soon be
superseded again by the further corrected version (attached).

- [t;ml]
(b) (6)
Offic~ of Lega l Counsel

(b) (6)

(b) (6)

(b) (6)

From: Gannon, Curtis E. (OLC}
Sent: Saturday, January 21, 2017 3:02 PM
(b) (6)
To:
! {OLC} •
(b) (6)
Koffsky, Daniell {OLC} •
Subject: RE: Typo in published opinion

(b) (6)

>·,

! (OLC)

•

(b) (6)

Great. Thanks. I still cannot see the fixed typo on page 1, even when I use devices that shouldn't have a cache of
the prior document.

(b) (6)
From:
•{Ole)
Sent: Saturday, January 21, 2017 2:57 PM
(b) (6)
To: Gannon, Curtis E. (OLC) •
(b) (6)
Koffsky, Daniell (Ole) •
Subject: RE: Typo in published opinion

>·,

!{Ole) .

(b) (6)

(b) (6)

Ok, I've gone through the rest and!'s made the changes. (There was one pincite with transposed
numbers in a footnote, and he fixed a couple of other spacing issues.)
Curtis and Dan, can whoever has the latest Word file of non-publication-form opinion send it to me at some
point? I can check and correct those typos if needed, and then I'll have the file to send to Dyone for our
internal records. Thanks.
From: Gannon, Curtis E. (OlC}

Sent: Saturday, January 21, 20171:56 PM
(b) (6)
• (Ole) •
(b) (6)
Koffsky, Daniell (OlC) •
Subject: RE: Typo in published opinion

To:

Great . Thanks.

From:

(b) (6)

Document ID: 0.7.13767.5503

! (OlC)

>·

'

(b) (6)

!

(OLC) •

(b) (6)

 duplicate

 

Document ID: 

Hart, Rosemary (OLC)

From:

Hart, Rosemary (OLC}

Sent:

Saturday, January 21, 2017 3:06 PM

To:

Kalbaugh, David E. EOP/ WHO

Subject:

RE: I see that Dan

Ye s! I will.
It's posted on our website.
From: Kalbaugh, David E. EOP/ WHO [mailto
Sent; Saturday, January 21, 2017 3:00 PM
(b) (6)
To: Hart, Rosemary (Ol e) ,
Subject: I see t hat Dan

(b ) (6 )

>

Recently wrot e a very important Ol C opinion. Give him my best.

D a~d Kalbaugh

Exeeutree Cle!k
The \'\'bite H om.e

Rm. 2 0EOB

•,

- @IHffl
-MG>il!JIII

D esk
Cell

Document ID: 0.7.13767.58377

 Koffsky, Daniel L (OLC)
From:

Koffsky, Daniel L (OLC)

Sent:

Sunday, January 22, 2017 12:49 PM

To:

(b) (6 )

{OLC)

Subject:

Correction of typos

Attachments:

Section 3110 to WHO opinion draft 12.docx; ATT00001.txt

Document ID: 0.7.13767.31285

 __
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(b) (6)

From:

!

(OLC}

Monday, January 23, 2017 9:55 AM

Sent:

(b) (6)

To:

!

{OLC)

Subject:

RE: Could you send me

Attachments:

2017-01-20- DMG Koffsky- Appl of anti-nepo stat to WHO (book).pdf; 2017-0120 - DMG Koffsky - Appl of anti-nepo stat to WHO (book).rtf

Here they are. (FYI, all the files for published opinions and opinions pending publication are on the G: drive in the
Publications folder.. E.g., these files are in this folder:
G:\OLCPT}BLI CATIONS'Op OLC Op OLC 41 - 2017 (1)12017-01-20- DA..A.G Koffsk-y -Appl of antinepo stat to WHO

Also, the PDF is at both the old and new links:
httpsJ/ww.v . justice. gov, sitesldefault/fi!es' olc/opinions•anachment!,/2017/0l 120'2017-01-20-anri-nepo--statwho 0.pdf
https:11www.JUstice.gov s1res!default1fi!es/ok lopinions1anachmems/2017 101121'201 7-01-20-anti-nepo--stat\Yho.pdf

(b) (6)
Offica of Lei:a l Coun.s.el
(b) (6)
(b) (6)

(b) (6)

(b) (6)
From:
, {OLC)
Sent: Monday, January 23, 2017 9:46 AM
(b) (6)
To:
• (OLC) ,
Subject: Could you send me

>

The latest Word and PDF files of the website opinion? Thanks.

Document ID: 0.7.13767.5443

 __
d_oL_c_
, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
From:

(b) (6)

!

(OLC}

Sent:

Tuesday, January 24, 2017 2 :51 PM

To:

Mitchell, Dyone (OLC)

Subject:

RE: PDF and Word file of signed opinion

Attachments:

LA_ 20170120_ Application of the Anti-Nepotism Statute to a Presidential
Appointment in the White House Office.docx; LA_20170120_Application of the
Anti-Nepotism Statute to a Presidential Appointment in the White House
Office.pdf; META_ LA_ 20170120_Application of the Anti-Nepotism Statute to a
Presidential Appointment in the White House Office.docx

Hi Dyone - after a conversation with Nazar, I've redone the file names and the metadata form for the
opinion I sent you yesterday. Here's the Word file, the signed PDF, and the metadata form. Thanks.
(b) (6)
From:
{Ole)
Sent: Monday, January 23, 2017 U:07 PM
(b) (6)
To: Mitchell, 0yone (Ole) •
Subject: PDF and Word file of signed opinion

Hi Dyone,
I've attached a PDF of the opinion for the White House Counsel that Dan signed on Friday evening (I'll bring
the hard copy of the signed version to you once I have Curtis sign the publication checklist form). I also
attached the Word file for ISYS/Percept:ive. Both files have the file name that I generated using the Metadata
tool-let me know if I messed anything up!
Thanks,

1m1m1!

Document

ID: 0.7.13767.5085

 U.S. Department of Justice
Office of Legal C ounsel

Office of the Deputy Assistant Attorney General

Washington, D.C. 20530

January 20, 2017

MEMORANDUM FOR DONALD F. MCGAHN II

COUNSEL TO THE PRESIDENT
Re: Application of the Anti-Nepotism Statute to a Presidential

Appointment in the White House Office
You have asked whether section 3110 of title 5, U.S. Code, which forbids a public

official from appointing a relative “to a civilian position in the agency . . . over which [the


official] exercises jurisdiction or control,” bars the President from appointing his son-in-law to a

position in the White House Office, where the President’s immediate personal staff of advisors

serve. We conclude that section 3110 does not bar this appointment because the President’s

special hiring authority in 3 U.S.C. § 105(a) exempts positions in the White House Office from

section 3110.
A decision of the D.C . Circuit, Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995) (per

curiam), lays out a different, but overlapping, route to the same result. According to the

reasoning of Haddon, section 3110 does not reach an appointment in the White House Office

because section 3110 covers only appointments in an “agency,” which the statute defines to

include “Executive agenc[ies],” and the White House Office is not an “Executive agency” within

the definition generally applicable to title 5. Although our analysis does not track every element

reasoning about the meaning of “Executive agency,” we believe that


of the D.C. Circuit’s

Haddon arrived at the correct outcome and that our conclusion here that, because of the

for the White House Office, section 3110 does not forbid the

proposed appointment squares with both the holding and a central part of the analysis in that


President’s special hiring authority
case.

I.

Section 105(a) of title 3 authorizes the President “to appoint and fix the pay of employees

in the White House Office without regard to any other provision of law regulating the

employment or compensation of persons in the Government service, ” as long as the employees’

pay is within listed salary caps. 3 U.S.C. § 105(a)(1). These employees are to “perform such

Id. § 105(b)(1). We understand that most White


official duties as the President may prescribe.”

House Office employees are appointed under section 105 or a similar hiring authority, such as

3 U.S.C. § 107 (the authorization for domestic policy staff). See Authority to Employ White

House Office Personnel Exempt from the Annual and Sick Leave Act Under 5 U.S.C.

§ 6301(2)(x) and (xi) During an Appropriations Lapse, 36 Op. O.L.C.
, at *5 (Apr. 8, 2011),

https://www.justice. gov/olc/opinions; Authority to Employ the Services of White House Office

Employees During an Appropriations Lapse, 19 Op. O.L.C. 235, 236 (1995). Such employees


Document ID: 0.7.13767.5085-000001

 are the President’s “immediate personal staff” and work in close proximity to him. Meyer v.

Bush, 981 F.2d 1288, 1293 & n.3 (D.C. Cir. 1993). The appointment at issue here, we

understand, would be under 3 U.S.C . § 105(a).

Section 3110 of title 5, also known as the anti-nepotism statute, states

that “[a]

public


official may not appoint, employ, promote, advance, or advocate for appointment, employment,

promotion, or advancement, in or to a civilian position in the agency in which he is serving or

over which he exercises jurisdiction or control any individual who is a relative of the public


official.” 5 U.S.C. § 3110(b). The statute expressly identifies the President as one of the “public

official[s]” subject to the prohibition, and a son-in-law is a covered “relative. ” Id. § 3110(a)(2),

(a)(3). Moreover, under Article II of the Constitution, the President exercises “jurisdiction or

control” over the White House Office as well as over the rest of the Executive Branch.
See Myers v. United States, 272 U.S. 52, 163 64 (1926); Inspector General Legislation,

1 Op. O.L.C. 16, 17 (1977). Less certain is whether the White House Office is an “agency”
term that section 3110 defines to include an “Executive agency,” thereby calling up the


a


definition of “Executive agency”

generally applicable to title 5, see 5 U.S.C. § 3110(a)(1)(A); id.

§ 105. But whether or not the White House Office meets this definition (a subject to which we

will return in Part II, infra), we believe that the President’s special hiring authority in 3 U.S.C.


§ 105(a) permits him to make appointments to the White House Office that the anti-nepotism

statute might otherwise forbid.
Section 3110 prohibits the appointment of certain persons to positions of employment in

the federal government. It is therefore a “provision of law regulating the employment . . . of

persons in the Government service.”1 Under section 105(a), the President can exercise his


authority to appoint and fix the pay of employees in the White House Office “without regard to”

such a law. 3 U.S.C. § 105(a)(1). This authority is “[s]ubject” only to the provisions of

subsection (a)(2), which limit the number of White House employees the President may appoint

at certain pay levels. See id. § 105(a)(2). Thus, according to the most natural and

straightforward reading of section 105(a), the President may appoint relatives as employees in


the White House Office “without regard to” the anti-nepotism

statute.

This reading of the two statutes gives section 105 (a) a meaning no more sweeping than

its words dictate. The ordinary effect of “without regard” language is to negate the application

of a specified class of provisions. In American Hospital Association v . Bowen, 834 F.2d 1037


(D.C. Cir. 1987), for example, the D.C. Circuit declared that the “plain meaning” of a “without

regard” exemption, which there enabled the Secretary of Health and Human Services (“HHS”) to

carry out his contracting authority “without regard to any provision of law relating to the making,

performance, amendment or modification of contracts of the United States,” was “to exempt

HHS from . . . the vast corpus of laws establishing rules regarding the procurement of contracts


from the government,” although not from the requirements of the Administrative Procedure Act.


1

Subsection (c) of section 3110, which states that an individual appointed, employed, promoted, or


advanced in violation of the statute’s prohibition is “not entitled to pay,” 5 U.S.C. § 3110(c), may also make section
3110 a “provision of law regulating the . . . compensation of persons in the Government service” rendered

inapplicable by section 105(a).

2


Document ID: 0.7.13767.5085-000001

 Id. at 1054; see also Friends of Animals v. Jewell, 824 F.3d 1033, 1045 (D.C. Cir. 2016) (holding


that a statutory direction to issue a rule “without regard to any other provision of statute or

regulation that applies to issuance of such rule” effectively changed the Endangered Species

Act); Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170, 1174 75 (9th Cir. 2012) (reaching


the same conclusion about a direction to issue a rule “without regard to any other provision of

statute or regulation”); cf. Crowley Caribbean Transport, Inc. v. United States, 865 F.2d 1281,

1282 83 (D.C. Cir. 1989) (noting, in interpreting an authorization to the President to take certain


action “notwithstanding any other provision of this chapter or any other Act,” that a “clearer

statement is difficult to imagine,” and declining to “edit” the language to add an implied

exemption).
Applying the “without regard” language, our Office has interpreted section 105(a) as a

grant of “broad discretion” to the President “in hiring the employees of [the White House
Office]”; the provision, we have said, “reflect[s] Congress’s judgment that the President should

have complete discretion in hiring staff with whom he interacts on a continuing basis.”

Applicability of the Presidential Records Act to the White House Ushe r’s Office, 31 Op.

O.L.C. 194, 197 (2007); see also Memorandum for Bernard N ussbaum, Counsel to the President,

from Daniel L. Koffsky, Acting Assistant Attorney General, Office of Legal Counsel,

Re: Presidential Authority under 3 U .S.C. § 105(a) to Grant Retroactive Pay Increases to Staff
Mem bers of the White House Office at 2 3 (July 30, 1993) (section 105(a)’s “sweeping


language”

gives the President “complete discretion” in adjusting pay of White House Office

employees “in any manner he chooses”). That congressional intent is manifest in the House and

Senate committee reports accompanying the 1978 legislation by which C ongress enacted section

105(a). See Pub. L. No. 95-570, 92 Stat. 2445 (1978). Both reports state that the language

committee’s intent to permit the President total discretion in the employment,


“expresses the

removal, and compensation (within the limits established by this bill) of all employees in the

White House Office .” H.R. Rep. No. 95 -979, at 6 (1978) (emphasis added); S. Rep. No. 95-868,

at 7 (1978) (same). Aside from the reference to the compensation limits in subsection (a)(2), that

statement is qualified only by the committees’ explanation that section 105(a) “would not excuse

any employee so appointed from full compliance with all laws, executive orders, and regulations


governing such employee’s conduct while serving under the appointment.” H.R. Rep. No.

95-979, at 6; S. Rep. No. 95-868, at 7 (same).

section 105(a)’s legislative history does point the other way. During the

the General Counsel to the President’s Reorganization Project at

the Office of Management and Budget (“OMB”) testified that the language exempting the White

One piece of

House subcommittee hearing,

House Office (along with other entities in the Executive Office of the President) from the usual

rules on hiring and compensation “would not exempt [these entities] from the restrictions under


the nepotism statute because of the specific provisions of that act which apply to the President.”
Authorization for the White House Staff: Hearings Before the Subcomm. on Employee Ethics and

Utilization of the H. Comm. on Post Office and Civil Service, 95th Cong. 20 (1978)


(“Authorization for the White House Staff ”) (testimony of F.T. Davis, Jr.). Even if we were

prepared to reach a different understanding of section 105(a)’s text based on a single witness

statement, but see S&E Contractors, Inc. v. United States, 406 U.S. 1, 13 n.9 (1972) (“In

construing laws we have been extremely wary of testimony before committee hearings . . . .”),

this particular statement does not offer a persuasive basis on which to do so. Although no


member of the subcommittee disputed the OMB official’s interpretation, it is
3


Document ID: 0.7.13767.5085-000001

far from clear


 whether the members (and later, the authors of the House and Senate reports) ultimately

endorsed his view about the language. The O MB official offered his interpretation after the


about the language’s effect on a number of federal laws and

Hatch Act, nepotism law, criminal conflict of interest laws, [and]

Order 11222 regulating employee conduct”; the chair explained that she was asking

subcommittee chair asked
authorities, including “the

in

Executive
order to draft the committee report. Authorization for the White House Staff at 20 (question of

Rep. Schroeder). But while another of the witness’s assertions ultimately made it into the


his statement that the language would not affect any laws “dealing with

conduct by public officials once they are appointed,” id. (testimony of Mr. Davis), see also H.R.

committee reports

Rep. No. 95-979, at 6; S. Rep. No. 95-868, at 7 his comment about the anti-nepotism statute

did not. Cf. Gustafson v . Alloyd Co. , 513 U.S. 561, 580 (1 995) (“If legislative history is to be

considered, it is preferable to consult the documents prepare d by Congress when deliberating.”).
Moreover, the rationale the O MB official offered for his interpretation that “specific

provisions ” of section 3110 “apply to the President” is not particularly convincing. Because

the President exercises “jurisdiction or control” over the entire Executive Branch, section 3110,

by its express terms, would seemingly apply to the President’s filling of numerous positions in

federal agencies, even if the “without regard to any other provision of law” language carved out

a handful of entities in the Executive Office of the President, such as the White House Office.
Cf. Ass’n ofAm. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 905 (D.C. Cir. 1993)


(“AAPS”) (suggesting a reading of section 3110 under which “a President would be barred from

appointing his brother as Attorney General, but perhaps not as a White House special assistant”) .

In our view, therefore, section 105(a) exempts presidential appointments to the White

House Office from the scope of the anti-nepotism statute.

II.
Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995) (per curiam), also bears on the

question here and might appear to resolve it, albeit through a different route. Relying on

arguments that would apply equally to the White House Office, Haddon held that the Executive

Residence at the White House is not an “Executive agency” within the title 5 definition. Id. at

1490. Because the prohibition in section 3110 applies, as relevant here, only to appointments in

Haddon seems to compel the conclusion that the bar against nepotism


“Executive agenc[ies],”

would not extend to appointments in the White House Office. Reinforcing this conclusion,


though resting on other grounds, an earlier opinion of the D.C. Circuit had expressed “doubt that

Congress intended to include the White House” as an “agency” under section 3110. AAPS, 997

F.2d at 905; but see id. at 920 21 (Buckley, J., concurring in the judgment) (disputing that


interpretation of “agency”).
The matter, however, is somewhat more complicated. N ot every part of the reasoning in

Haddon is entirely persuasive , and the court’s rationale extends more broadly than necessary, in

our view, to address the question now at hand. Nonetheless, we believe that Haddon lends

support to our conclusion that the President may appoint relatives to positions in the White

House Office.
Haddon held that the Executive Residence, which like the White House Office has a staff

appointed under title 3, see 3 U.S.C. § 105(b), is not an “Executive agency” within the title 5


4


Document ID: 0.7.13767.5085-000001

 definition. Haddon was considering 42 U.S.C. § 2000e-16, which extends the antidiscrimination

provisions of Title VII of the Civil Rights Act of 1964 to employees or applicants for

employment “in executive agencies as defined in [5 U.S.C. § 105 ].” 42 U.S.C. § 2000e-16(a).
Under that definition (the same one that governs section 3110), an “Executive agency” means


“an Executive department, a Government corporation, and an independent establishment. ”
5 U.S.C. § 105. Because the Executive Residence, like the White House Office, is plainly not an


“Executive department” or a “Government corporation,” see id. §§ 101, 103, the issue in Haddon
came down to whether the Executive Residence is an “independent establishment,” see id. § 104.
The D.C . Circuit had two reasons for concluding that the Executive Residence is not an

independent establishment and therefore not an Executive agency under 5 U.S.C. § 105. First,

the court observed that another statute, 3 U.S.C. § 112, authorizes “[t]he head of any department,

agency, or independent establishment of the executive branch of the Government [to] detail,

from time to time, employees of such department, agency, or establishment to the White House

Office, the Executive Residence at the White House, the Office of the Vice President, the

Domestic Policy Staff, and the Office of Administration. ” In the court’s view, this phrasing

suggested that the listed entities in the Executive Office of the President are not themselves

“department[s], agenc[ies], or independent establishment[s].” Haddon, 43 F.3d at 1490 (“That

Congress distinguished the Executive Residence from the independent establishments, whatever

they may be, suggests that C ongress does not regard the Executive Residence to be an

independent establishment, as it uses that term.”). Second, the court said that title 5 of the U.S.

Code “relates to government organization and employees and prescribes pay and working

conditions for agency employees,” while title 3 of the Code “addresses similar concerns with

respect to the President’s advisors and the staff of the Executive Residence.” Id. The

incorporation of the title 5 definition in section 2000e-16, the court explained, suggests that

Congress intended the statute to cover only “title
3 U.S.C. § 105 and other title 3 authorities. Id.2
The

D.C. Circuit’s

5” positions

not positions provided for in


first reason may be the less convincing of the two. The wording of the


detail statute, 3 U.S.C. § 112, “distinguish[e s]” between the sending and receiving entities only

insofar as the sending entities are identified generically, while the small group of entities that

may receive details, including the Executive Residence and the White House Office, are

specifically named. This wording might well be an apt way to authorize a detail without

implying anything about the status of the receiving entities. Indeed, C ongress elsewhere used

similar constructions to provide for transfers between executive departments. Section 2256 of

title 7 declares that the “head of any department” may “transfer to the Department [of

Agriculture] ” funds to perform certain inspections, analyses, or tests. Similarly, under 22 U.S.C.

§ 2675, the Secretary of State may “transfer to any department” certain “funds appropriated to

the Department of State.” The generic references to “departments” on one side of these


2
Shortly after Haddon , Congress passed the Presidential and Executive Office Accountability Act, Pub. L.

No. 104 331, 110 Stat. 4053 (1996), which expressly applies Title VII and other federal civil rights and workplace
laws to entities in the Executive Office of the President, including the W hite House Office and the Executive

Residence. See id. § 2(a) (relevant provisions codified at 3 U.S.C. §§ 401, 402, 411).


5


Document ID: 0.7.13767.5085-000001

 transactions could not be read to imply that the entities on the other side, the Departments of

Agriculture and State, are not “departments.”
The court’s second argument seems stronger, although the court stated it more broadly

than the facts of Haddon required. The court apparently viewed the provisions in title 3 as

creating a complete substitute for title 5: “while Title 5 relates to government organization and

employees and prescribes pay and working conditions for agency employees, Title 3 addresses


similar concerns with respect to the President’s advisors and the staff of the Executive

Residence.” Haddon, 43 F.3d at 1490 (citation omitted). The court then quoted, in a

parenthetical, the “without regard” provision for hiring in the Executive Residence that exactly

parallels the one for the White House Office. Id. (quoting 3 U.S.C. § 105(b)(1)). Inasmuch as

the plaintiff in Haddon claimed that he had been unlawfully passed over for promotion that he

had not been appointed to a higher position with higher pay his claim had to do with exactly

the subjects identified in 3 U.S.C. § 105(b)(1), “employment or compensation of persons in the

Section 105(b)(1) could therefore be understood to displace the


Government service.”

restrictions in Title VII, even if title 3 did not completely displace all of title 5. Thus, the court’s

broader statements about the relationship of title 3 and title 5, though not dicta, went further than

necessary to decide the case and further than we need to go here.
In any event, our conclusion above that the President’s special hiring authority in

3 U.S.C. § 105(a) allows him to appoint relatives to the White House Office without regard to


section 3110’s bar against nepotism is consistent with the holding in Haddon and with the

court’s reliance on the parallel language in 3 U.S.C. § 105(b)(1). In accordance with Haddon,

we believe that the White House Office is not an “Executive agency” insofar as the laws on

employment and compensation are concerned. Both the “without regard” language of section

105(a) and the general treatment of the White House Office under title 3 instead of title 5

undergird this conclusion. 3 Having conformed our analysis, to this extent, with the only

authoritative judicial guidance bearing on this question, we have no need to delve into the issue

whether the White House Office should be considered outside of title 5 for all purposes

whenever the application of that title is confined to “Executive agenc[ies].”4

3

We do not address the application of section 3110 to any other component of the government.

4

We have observed before that the D.C.

Circuit’s reasoning in

Haddon would seemingly extend to other


entities listed in section 112 with special hiring authorities under title 3, including the W hite House Office. See
Memorandum for Gregory B. Craig, Counsel to the President, from David J. Barron, Acting A ssistant Attorney

General, Office of Legal Counsel, Re: Application of 5 U.S.C. § 3110 to Two Proposed Appointments by the
President to Advisory Committees at 18 (Sept. 17, 2009); Application of 18 U.S.C. § 603 to Contributions to the

President’s Re Election Committee , 27 Op. O.L.C. 118, 118 (2003) (“ Section 603 Opinion ”). In one circumstance,

however, bec ause of features “unique” to the statutory scheme at issue the Hatch A ct Reform Amendments of

1993 (“HARA”) we have found that the White House Office should be treated as an “Executive agency” under

title 5 notw ithstanding Haddon . See Section 603 Opinion, 27 Op . O.L.C. at 119 (White House Office employees
may make contributions to a President’s authorized re election campaign by virtue of an exception available to

employees in an “Executive agency”).
Section 603 of title 18 prohibits “an officer or employe e of the United States or any department or agency
thereof” from “mak[ing] any contribution . . . to any other such officer, employee or person . . . if the person

receiving such contribution is the employer or employing authority of the person making the contribution.”

6


Document ID: 0.7.13767.5085-000001

 III.

Our Office, on several occasions, has addressed the application of section 3110 to

presidential appointments, including appointments to the White House Office and other entities

within the Executive Office of the President. Although our conclusion today departs from some

of that prior work, we think that this departure is fully justified.

Our initial opinions on the


subject drew unwarranted inferences about Congress’s intent from a single witness statement in a

congressional hearing.

Moreover, the surrounding legal context has been transformed by the


subsequent enactment of section 105(a), which expressly and specifically addresses employment

within the White House Office, and also by the D.C. Circuit’s decision in Haddon.


A.

Section 3110 was enacted in 1967. In a 1972 memorandum, our Office concluded that

the statute would bar the President from appointing a relative “to permanent or temporary


employment as a member of the White House staff.” Memorandum for John W. Dean, III,

Counsel to the President, from Roger C. Cramton, Assistant Attorney General, Office of Legal

Counsel, Re: Applicability to President of Restriction on Employment of Relatives at 1 (Nov. 14,


1972) (“Cramton Memo”). The Cramton Memo is brief but unequivocal: section 3110, we said,

“seems clearly applicable to . . . positions on the White House sta ff.” Id. at 2.
In 1977, we advised that section 3110 would preclude the President from appointing the

First Lady to serve as chair of the President’s Commission on Mental Health (“Mental Health


Commission”),

whether with or without compensation. See Memorandum for Douglas B.

Huron, Associate Counsel to the President, from John M. Harmon, Acting Assistant Attorney

General, Office of Legal Counsel, Re: Possible Appointment of Mrs. Carter as Chairman of the


Commission on Mental Health (Feb. 18, 1977) (“Mental Health Commission Memo I”)

(referencing attached Memorandum for John M. Harmon, Acting Assistant Attorney General,


603(a). But section 603(c) exempts from liability “employee[s] (as defined in section 7322(1) of title

meaning, employees subject to HARA. Section 7322(1), in turn, defines “employee” as “any individual, other

than the President and the Vice President, employed or holding office in . . . an Executive agency.” 5 U.S.C.

18 U.S.C. §

5)”

§ 7322(1)(A).

Several considerations led us in our Section 603 Opinion to confirm a prior opinion treating the

White House Office as an “Executive agency” for purposes of section 7322(1), see Whether 18 U.S.C. § 603 Bars

Civilian Executive Branch Employees and Officers from Making Contributions to a President’s Authorized

Re Election Campaign Committee , 19 Op. O.L.C. 103 (1995). First, there would be “no purpose” for section

7322(1)’s express exclusion of the President and the Vice President if they were not understood to be “holding

office in . . . an Executive agency.” Section 603 Opinion, 27 Op. O.L.C. at 119. Second, the exception to HARA’s

substantive prohibition on partisan political activity in 5 U.S.C. § 7324(b)(2)(B)(i) applies to “employee[s] paid

from an appropriation for the Executive Office of the President,” further reflecting HARA’s assumption that such

employees are otherwise covered. Section 603 Opinion, 27 Op. O.L.C. at 119. Third, reading section 7322(1) to

exclude employees of the White House Office “might be thought to produce highly anomalous results,” as it would

follow that White House employees “would be entirely free from the res trictions of [HARA]” and “would be able to

engage in all sorts of partisan political activity,” including by “us[ing] [their] official authority or influence for the

purpose of interfering with or affecting the result of an election,” see 5 U.S.C. § 7323(a)(1). Section 603 Opinion,

27 Op . O.L.C. at 119. Thus, we determined that there are “powerful reasons to conclude that the term ‘Executive

agency’ in section 7322(1) does not have the same meaning that section 105 of title 5 generally assigns it (and th at
cases like Haddon recognize) for the purpose of title 5.” Id.

7


Document ID: 0.7.13767.5085-000001

 Office of Legal Counsel, Re: Legality ofthe President’s Appointing Mrs. Carter as Chairman of

the Commission on Mental Health (Feb. 17, 1977) (“Mental Health Commission Memo II”)).

We determined that the Mental Health Commission, which would be established by Executive

Order and assigned specific authorities, would “clearly” qualify as an independent establishment


within the “comprehensive”

meaning of that term. Mental Health Commission M emo I. Our

analysis noted, however, that the funding for the Commission would come from an annual

appropriation for the Executive Office of the President covering “Unanticipated Needs,” and we

accordingly considered the effect of language in that appropriation that, presaging section 105(a),

authorized the President to hire personnel “without regard to any provision of law regulating


employment and pay of persons in the Government service.” Mental Health C ommission

Memo

II, at 5 6. We ultimately concluded that the appropriation language did not override section

3110. Although we did not say that the Mental Health Commission would be located in the

White House Office specifically, our analysis suggested that our conclusion about the

appointment would have been the same, whether or not the position was located there. See id.
Shortly afterward, the White House asked us to answer that very question: whether

section 3110 applied to the contemplated appointment of the President’s son to serve as an

unpaid assistant to a member of the White House staff. See Memorandum for the Attorney

General from John M. Harmon, Acting Assistant Attorney General, Office of Legal Counsel, Re:

Employment of Relatives Who Will Serve Without Compensation (Mar. 23, 1977) (“White House


Aide Memo I”) (referencing

attached Memorandum for John M. Harmon, Acting Assistant

Attorney General, Office of Legal Counsel, Re: Appointment ofPresident’s Son to Position in

the White House Office (Mar. 15, 1977) (“White House Aide Memo II”)). The Civil Service


Commission, the predecessor of the Office of Personnel Management, had advanced several

arguments why section 3110 did not forbid the President’s appointment of relatives to his

personal staff. See White House Aide Memo I, at 1. Reaffirming the points made in the Mental

Health Commission Memos, however, our Office concluded that the statute also covered the

proposed appointment. Once again, we rejected an argument that the language in the annual

appropriation for the White House Office (i.e., the “without regard” language) exempted those

appointments from section 3110. White House Aide Memo II, at 1 3.
In 1983, we were asked whether the President could appoint a relative to a Presidential

Advisory Committee on Private Sector Initiatives (“CPSI”). See Memorandum for David B.

Waller, Senior Associate Counsel to the President, from Robert B. Shanks, Deputy Assistant

Attorney General, Office of Legal Counsel, Re: Appointment ofMember ofPresident’s Family to

Presidential Advisory Committee on Private Sector Initiatives (Feb. 28, 1983). We answered


that the President’s proposed appointment of a relative to the CPSI raise d “virtually the same

problems raised by Mrs. Carter’s proposed service on the President’s Commission on Mental

Health.” Id. at 2. Because we lacked “sufficient time to reexamine the legal analysis contained

in our earlier memoranda,” we stated that we had no choice but to “adhere to the conclusion ” that

“the President cannot, consistently with section 3110, appoint a relative as an active member of

such a Commission.” Id.
Most recently, we advised whether the President could appoint his brother-in-law and his

half-sister to two advisory committees. Once again, we found that section 3110 precluded the
appointments. See Memorandum for Gregory B. Craig, Counsel to the President, from David J.

Barron, Acting Assistant Attorney General, Office of Legal Counsel, Re: Application of 5 U .S.C.


8


Document ID: 0.7.13767.5085-000001

 § 3110 to Two Proposed Appointments by the President to Advisory Committees (Sept. 17, 2009)


(“Barron Opinion”). In the course of that analysis, we considered whether one of the

committees, the President’s Commission on White House Fellowships (“Fellowships

Commission”), was located within the Executive Office of the President or was instead

a free-

standing establishment within the Executive Branch. Id. at 14 15.5 Concluding that, either way,

the Fellowships Commission was, or was within, an “independent establishment ” falling within

the title 5 definition of Executive agency, we did not decide the question. Id. But we explicitly

rejected the possibility that the Fellowships Commission constituted a part of the White House

Office. Id. at 14. As a result, the Barron Opinion had no occasion to reapply or reconsider our

precedents finding that section 3110 barred the President from appointing relatives to White

House Office positions. See id. at 18 19 (distinguishing Haddon).


B.

Although none of our previous opinions analyzed the interaction between 3 U.S.C.

§ 105(a) and the anti-nepotism statute, our 1977 memoranda did consider the effect of language
in annual appropriations for the Executive Office of the President that was nearly identical to

section 105(a). Prompted by the inconsistency between our earlier memoranda and the

implications of Haddon, we now revisit the reasoning in those memoranda in order to assess the

issue presented under section 105(a).

While acknowledging that the ap propriation

language was “broad” and the issue “not


wholly free of doubt,”

our memorandum regarding the White House appointment reasoned that

section 3110 should be understood as a “specific prohibition” constituting an “exception to the

general rule that limitations on employment do not apply to the White House Office.” White

House Aide Memo II, at 3. We therefore invoked the “basic principle of statutory construction

that a statute dealing with a narrow, precise, and specific subject is not submerged by a later


enacted statute covering a more generalized spectrum.”

Id. (quoting Radzanower v. Touche Ross

& Co., 426 U.S. 148, 153 (1976)). But the canon about general and specific statutes seems of

limited help here, because neither of the two relevant statutes can readily be characterized as

more or less specific than the other. To be sure, section 3110 could be said to concern the


“specific” subject of nepotism. But section 105(a) could reasonably be described as a statute

“dealing with [the] narrow, precise, and specific” subject of hiring for the White House Office

that ought to overcome the generally applicable anti-nepotism rule of section 3110.
The 1977 memoranda also put significant weight on the legislative history of section

3110, discerning a clear congressional intent that the Executive Office of the President, including

the White House Office, be among the entities subject to the anti-nepotism prohibition. See

Mental Health Commission Memo I; Mental Health Commission Memo II, at 5; White House


5

We concluded that the other advisory committee at issue, the President’s Council on Physical Fitness and


Sports, constituted part of the Department of Health and Human Services . Barron Op inion at 9. Nothing in our

present opinion should be understood to question our prior conclusions about filling positions not covered by the
special hiring authorities in title 3.

9


Document ID: 0.7.13767.5085-000001

 Aide Memo I, at 2; White House Aide Memo II, at 2 3. We think that this history is not so

compelling, however, as to direct the outcome on the question here.
Section 3110 was enacted as part of the Postal Revenue and Federal Salary Act of 1967.
See Pub. L. No. 90-206, § 221, 81 Stat. 613, 640. When Congress considered and passed the

legislation, the annual appropriations for the Executive Office of the President then in effect

included the permissive language about the President’s authority to hire personnel in the White

House Office. See Pub. L. No. 90-47, tit. III, 81 Stat. 113, 117 (1967). As our 1977 memoranda
observed, there was no mention of those appropriations or that language during Congress’s

consideration of the anti-nepotism provision. But one witness, the Chairman of the Civil Service

Commission, testified before the Senate committee that, in his view, the language then under

consideration would have prevented President Franklin Delano Roosevelt from appointing his

son “at the White House as a civilian aide” (as President Roosevelt had done). Federal Pay

Legislation: Hearings Before the S. Comm. on Post Office and Civil Service, 90th Cong. 366

(1967) (“Federal Pay Legislation Hearings”) (testimony of Chairman M acy). Following the

hearing, the Senate amended the provision in the bill and explicitly named the President as a

official” to whom the bar applied. “Because the Senate Hearings contain the only

extended discussion of the provision and the only discussion at all of its application to the


“public

President,”

we explained in our memorandum concerning the White House appointment,
seems appropriate to attach particular significance to the Civil Service Commission’s


interpretation of the statute in the course of the hearings.

“it


It is reasonable to assume that the


Senate Committee and eventually the Congress acted on the basis of Chairman Macy’s

interpretation o f the prohibition as drafted.” White House Aide Memo II, at 2.
Having reexamined the legislative materials, we no longer would make that assumption.
The Senate committee and Chairman Macy were reviewing a version of the bill that prohibited

nepotistic ap pointments to “department[s],” defined more broadly to include “each department,

agency, establishment, or other organization unit in or under the . . . executive . . . branch of the

Government . . . including a Government-owned or controlled corporation.” H.R. 7977, 90th

Cong. § 222 (as referred to S. Comm. on Post Office and Civil Service, O ct. 16, 1967) (emphasis

added). It is unclear why the Senate amended the provision to apply instead to “Executive


agenc[ies]” and thus

to call up the title 5 definition of that term . See H.R. 7977, 90th Cong.,

§ 221 (as reported out of S. Comm. on Post Office and Civil Service, Nov. 21, 1967). The

Senate report does not explain the change. See S. Rep. No. 90-801, at 28 (1967). Nevertheless,


that the Civil Service Commission Chairman was considering different statutory language when

offering his view about the scope of the prohibition dilutes the strength of his testimony which,

as a witness statement, should typically be afforded less weight to begin with.
Contractors, 406 U.S. at 13 n.9; Gustafson, 513 U.S. at 580.

See S&E

Because the appropriation language was apparently never mentioned during the House ’s

or Senate’s

consideration of the bill, the debates and other materials include no clear statement

that the anti-nepotism provision was intended to prevail over the broad hiring authority


10


Document ID: 0.7.13767.5085-000001

 previously granted in that year’s appropriation for the Executive Office of the President.6
Moreover, aside from that single question about the service of P resident Roosevelt’s son as a

White House aide which was part of a series of questions posed by the senators to Chairman

Macy about the language ’s application to the President generally, see Federal Pay Legislation

Hearings at 360 69 neither the Senate nor the House appears to have focused on the White

House Office. We therefore are hesitant to infer that the 90th Congress envisioned that section

3110 would overcome the President’s hiring authorities under the annual appropriation. W e are

even more reluctant to draw that inference with respect to the permanent special hiring authority

for the W hite House Office that Congress enacted ten years later.

IV.

Finally, we believe that this result that the President may appoint relatives to his

immediate staff of advisors in the White House Office makes sense when considered in light of

other applicable legal principles. C ongress has not blocked, and most likely could not block, the

President from seeking advice from family members in their personal capacities. Cf. In re

C heney, 406 F.3d 723, 728 (D.C. Cir. 2005) (en banc) (referring to the President’s need, “[i]n

making decisions on personnel and policy, and in formulating legislative proposals, . . . to seek

confidential information from many sources, both inside the government and outside”); Pub.

Citizen v. U .S. Dep’t of Justice, 491 U.S. 440, 466 (1989) (construing the Federal Advisory

Committee Act (“FACA”) not to apply to the judicial recommendation panels of the American

Bar Association in order to avoid “formidable constitutional difficulties”). Consequently, even if

the anti-nepotism statute prevented the President from employing relatives in the White House as

advisors, he would remain free to consult those relatives as private citizens. See Barron Opinion

at 8 9 (finding the application of section 3110 to presidential advisory committees constitutional

in part because “[t]he President remains free to consult his relatives in their private, individual

capacities at the time and place of, and on the subjects of, his choosing”). And our Office has

found that such an informal, “essentially personal” advisory relationship, even if the private

person offers advice to the President on a “wide variety of issues,” does not make that person an

employee of the federal government subject to the conflict of interest laws in title 18. Status of

6

Individual senators did stress the amended provision’s breadth in floor s tatements . See 113 Cong. Rec.

36103 (1967) (statement of Sen . Randolph) (indicating that the Senate amended the provision “to plug any loopholes

which might exist,” because “[i]t was critical that the nepotism provisions be applied across the board”); id. (stating
that “[w] e could not stop at a certain point in fo rmulating a policy on nepotism” and “ had to apply the policy across
the board ”); id. at 36103 04 (suggesting that “the White House believes, as does now the Congress, that a
nonnepotism policy should apply equally to any branch of Government”); id. at 37316 (statement of Sen. Udall)

(explaining that the provision applies “across the board, from the highest office to the lowest paid job, with equal

force and effect” and that “[n]o official in any of the three branches of the Government . . . may appoint or promote
a relative to any position under his or her control or jurisdiction,” and calling it “the strongest possible guarantee

against any abuse of Federal appointive authority and any preferenc e in Federal positions that is adverse to the

public interest”). These statements, whatever their worth in demonstrating congressional intent more generally,

s ugges t that at least those senators meant for section 3110 to have broad effect across the three branches of


government. But because those statements do not speak to section 3110’s relationship to the President’s hiring

authority under the annual appropriations for the Executive Office of the President and, of course, could not speak

to the relationship between section 3110 and the later enacted section 105(a) they do not illuminate the matter at
hand.

11


Document ID: 0.7.13767.5085-000001

 an Informal Presidential Advisor as a “Special Government Employee”, 1 Op. O.L.C . 20, 20 21

(1977) (“Informal Presidential Advisor”); see also id. at 22 (“Mrs. Carter would not be regarded

as a special Government employee solely on the ground that she may discuss governmental


matters with the President on a daily basis.”). 7
But the conflict of interest laws do apply to employees of the White House Office. See

18 U.S.C. §§ 203, 205, 207, 208, 209 (all applicable to, inter alia, officers and employees in the

“executive branch”); id. § 202(e)(1) (defining “executive branch” for purposes of those statutes


to include “each executive agency as defined in title 5, and any other entity or administrative unit

in the executive branch”); id. § 207(c)(2)(A)(iii), (d)(1)(C) (applying more stringent postemployment restrictions to employees appointed to the White House Office pursuant to 3 U.S.C.

§ 105(a)(2)); see also, e.g., Applicability of Post-Employment Restrictions in 18 U.S.C. § 207 to

a Former Government Official Representing a Former President or Vice President in

Connection with the Presidential Records Act, 25 Op. O.L.C. 120 (2001) (considering section


207’s application to former employees of the White House Office).
A President wanting a relative’s advice on governmental matters therefore has a choice:

to seek that advice on an unofficial, ad hoc basis without conferring the status and imposing the

responsibilities that accompany formal White House positions; or to appoint his relative to the

White House under title 3 and subject him to substantial restrictions against conflicts of interest.
Cf. AAPS, 997 F.2d at 911 n.10 (declining, after holding that the First Lady qualifies as a “fulltime officer or employee” of the government under FAC A, to decide her status under the conflict

of interest statutes). In choosing his personal staff, the President enjoys an unusual degree of

freedom, which C ongress found suitable to the demands of his office. Any appointment to that

staff, however, carries with it a set of legal restrictions, by which Congress has regulated and

fenced in the conduct of federal officials.

7

Our opinion explained, however, that while the informal presidential advisor’s general practice (as we

understood it) of discussing policy issues directly with the President did not itself render him a government
employee, his more extensive “work” on a particular “current social issue” in connection with which the advisor


“called and chaired a number of meetings that were attended by employees of various agencies” and “assumed

considerable responsibility for coordinating the Administration’s activities in that particular area” did cross a line
and made him a government employee for purposes of that work. Informal Presidential Advisor, 1 Op . O.L.C. at
23.

12


Document ID: 0.7.13767.5085-000001

 *

*

*


In our view, section 105(a) of title 3 exempts appointments to the White House Office

from the bar in section 3110 of title 5. Section 3110 therefore would not prohibit the

contemplated appointment.

DAN IEL L. KOFFSKY

Deputy Assistant Attorney General

Office of Legal Counsel


13


Document ID: 0.7.13767.5085-000001

 ---·---·--------- - - - - - - - - - - ~

U.S. Department of Justice,
Office of Legal Counsel

Washington, D.C. 205J0,

Office of the Deputy Assistant Attorney General

January 20, 2017

MEMORANDUM FOR DONALD F. MCGAHN II
COUNSEL TO THE PRESIDENT

Re: Application of the Anti-Nepotism Statute to a.Presidential
Appointment in the White House Office
You have asked whether seetion 3110 of tit-le 5, U.S. Code, whichforbid-s a puhlie
official from appointing a relative ''to a civilian position in the agency. ~· . over which [the
official] exercises jurisdiction or control," bars the ·President from appointing his son-in-law to a
position in the White House Office, where the President's immediate personal staff of advisors
s.erve. We conclude that section 3110 does not bar this appointment because the President's
special hiring authority in 3 U.S.C. § 105(a) exempts positions in the White House Office from
section 3110.
A decision of the D.C. Circuit, Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995) (per
curiam), lays out a different., but overlapping, route .to the same result. According to the.
· reasoning of Haddon, section 3110 does not reach an appointment in the White House Office
because section JI 10 covers only appointments in an "agency~" which the statute defines to
inch.1de ''Executive agenc[ies]," and the White House Office is not an "Executive agency" within
thede.finitiongenerally applicabletotitle 5. Although our·analysisdoes not track every element
ofthe D.C. Circuit~s re~oning about the•meaning of "Executive agency," we believe that
Haddon arrived at the c6rrect outcome; and that our conclusion her~that~ b.ecause ofthe
President's special hiring authority for the White House Office, section 3110 does not forbid the._ . ·
.. squares with both the holding and a central parrofthe analysis in that
proposed appointmentcase.

l.
Section 105(a) of title 3 authorizes the President 1'to appoint and fix the pay of employees
in the White House Office without regard to any other provision of law regulating the
employment or compensation of persons in the Government service," as longas the·employees'
pay is within listed salary caps. 3 U.S.C. § l05(a)(l). These employees are to "perfotm such
official duties as the President may pr.escribe." · Id § I 05(b)(1 ). We understand that most White
House Office employees are appointed under section 105 or a similar hiring authority, such as
3 ns.c. § 107 (the authorization for domestic policy staff). See Authority to Employ White

House Office Personnel Exempt from' the Annual and Sick Leave Act Under 5 US.C
§ 6301 (2)(x) and (xi) During an Appropriations Lapse, 36 Op; O.L.C. _, at *5 (Apr. 8, 2011),
:littps://www.justice:gov/olc/opinions; Authority to Employ the Services ofWhite House Office ,
Employees During an Appropriations Lapse, 19 Op. O,L.C. 235,236 (1995). Such employees

Document ID: 0.7.13767.5085-000002

 are the President's "immediate personal staff' and work in close proximity to him. Meyer v.
Bush, 981 F.2d 1288, 1293 & n.3 (D.C. Cir. 1993). The appointment at issue here, we
understand, would be under 3 U.S.C. § 105(a).
Section 3110 of title 5, also known as the anti-nepotism statute, states that " [a] public
official may not appoint, employ, promote, advance, or advocate for appointment, employment,
promotion, or advancement, in or to a civilian position in the agency in which he is serving or
over which he exercises jurisdiction or control any individual who is a relative of the public
official." 5 U.S.C. § 311 0(b). The statute expressly identifies the President as one of the "public
official[s]" subject to the prohibition, and a son-in-law is a covered "relative." Id. § 3110(a)(2),
(a)(3). Moreover, under Article II of the Constitution, the President exercises "jurisdiction or
control" over the White House Office as well as over the rest of the Executive Branch.
See Myers v. United States, 272 U.S. 52, 163-64 (1926); Inspector General Legislation,
1 Op. O.L.C. 16, 17 (1977). Less certain is whether the White House Office is an "agency"-a
term that section 3110 defines to include an "Executive agency," thereby calling up the
definition of "Executive agency" generally applicable to title 5, see 5 U.S.C. § 31 IO(a)(l)(A); id.
§ JOS. But whether or not the White House Office meets this definition (a subject to which we
will return in Part II, infra), we believe that the President's special hiring authority in 3 U.S.C.
§d05(a) permits him to make appointments to the White House Office that the anti-nepotism
statute might otherwise forbid.
Section 3110 prohibits the appointment of certain persons to positions of employment in
the federal government. It is therefore a "provision of law regulating the employment ... of
persons in the Government s~rvice." 1 Under section 105(a), the President can exercise his
authority to appoint and fix the pay of employees in the White House Office "without regard to"
such a law, 3 U.S.C. § 105(a)(l). This authority is "[s]ubject" only to the provisions of
subsection (a)(2), which limit the number of White House employees the President may appoint
at certain pay levels. See id. § 105(a)(2). Thus, according to the most natural and
straightforward reading of section 105(a), the President may appointrelatives as employees in
the White House Office "without regard to" the anti-nepotism statute.
This reading of the two statutes gives section 105(a) a meaning no more sweeping than
its words dictate. The ordinary effect of "without regard" language is to negate the application
of a specified class of provisions. In American Hospital Association v. Bowen, 834 F.2d 103 7
(D.C. Cir. 1987), for example, the D.C. Circuit declared that the "plain meaning" ofa "without
regard" exemption, which there enabled the Secretary of Health and Human Services ("HHS") to
carry out his contracting authority "without regard to any provision oflaw relating to the making,
performance, amendment or modification of contracts of the United States," was "to exempt
HHS from ... the vast corpus of laws establishing rules regarding the procurement of contracts
from the government," although not from the requirements of the Administrative Procedure Act.

1 Subsection (c) of section 3110, which states that an individual appointed, employed, promoted, or
advanced in violation of the statute's prohibition is "not entitled to pay," 5 U.S.C. § 31 l0(c), may also make section
3 110 a "provision of law regulating the ... compensation of persons in the Government service" rendered
inapplicable by section 105(a).

2

Document ID: 0.7.13767.5085-000002

 Id. at 1054; see also Friends ofAnimals v. Jewell, 824 F.3d 1033, 1045 (D.C. Cir. 2016) (holding
that a statutory direction to issue a rule "without regard to any other provision of statute or
regulation that applies to issuance of such rule" effectively changed the Endangered Species
Act); Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170, 1174-75 (9th Cir. 2012) (reaching
the same conclusion about a direction to issue a rule "without regard to any other provision of
statute or regulation"); cf Crowley Caribbean Transport, Inc. v. United States, 865 F.2d 1281,
1282-83 (D.C. Cir. 1989) (noting, in interpreting an authorization to the President to take certain
action "notwithstanding any other provision of this chapter or any. other Act," that a "clearer
statement is difficult to imagine," and declining to "edit" the language to add an implied
exemption).
Applying the "without regard" language, our Office has interpreted section 105(a) as a
grant of "broad discretion" to the President "in hiring the employees of [the White House
Office]"; the provision, we have said, "reflect[s] Congress's judgment that the President should
have complete discretion in hiring staff with whom he interacts on a continuing basis."
Applicability of the Presidential Records Act to the White House Usher's Office, 31 Op.
O.L.C 194, 197 (2007); see also Memorandum for Bernard Nussbaum, Counsel to the President,
from Daniel L. Koffsky, Acting Assistant Attorney General, Office of Legal Counsel,
Re: £residential Authority under 3 US. C. § 105 (a) to Grant Retroactive Pay Increases to Staff
Members of the White House Office at 2-3 (July 30, 1993) (section 105(a)'s "sweeping
language" gives the President "complete discretion" in adjusting pay of White House Office
employees "in any manner he chooses"). That congressional intent is manifest in the House and
Senate committee reports accompanying the 1978 legislation by which Congress enacted section
l05(a). See Pub. L. No. 95-570, 92 Stat. 2445 {1978). Both reports state that the language
''expresses the committee's intent to permit the President total discretion in the employment,
removal, and compensation (within the limits established by this bill) of all employees in the
White House Office." H.R. Rep. No. 95-979, at 6 (1978) (emphasis added); S. Rep. No. 95-868,
at 7 (1978) (same). Aside from the reference to the compensation limits in subsection (a)(2), that
statement is qualified only by the committees' explanation that section 105(a) "would not excuse
any employee so appointed from full compliance with all laws, executive orders, and regulations
governing such employee's conduct while serving under the appointment." H.R. Rep. No.
95-979, at 6; S. Rep. No. 95-868, at 7 (same).
One piece of section 105(a)'s legislative history does point the other way. During the
House subcommittee hearing, the General Counsel to the President's Reorganization Project at
the Office of Management and Budget ("OMB") testified that the language exempting the White
House Office (along with other entities in the Executive Office of the President) from the usual
rules on hiring and compensation "would not exempt [these entities] from the restrictions under
the nepotism statute because of the specific provisions of that act which apply to the President."
Authorization for the White House Staff Hearings Before the Subcomm. on Employee Ethics and
Utilization of the H Comm. on Post Office and Civil Service, 95th Cong. 20 (1978)
("Authorization for the White House Sta.fl') (testimony ofF.T. Davis, Jr.). Even ifwe were
prepared to reach a different understanding of section 105(a)'s text based on a single witness
statement, but see S&E Contractors, Inc. v. United States, 406 U.S. 1, 13 n.9 (1972) ("In
construing laws we have been extremely wary of testimony before committee hearings .... "),
this particular statement does not offer a persuasive basis on which to do so. Although no
member of the subcommittee disputed the 0MB official's interpretation, it is far from clear
3

Document ID: 0.7.13767.5085-000002

 whether the members (and later, the authors of the I-louse and Senate reports) ultimately
endorsed his view about the language. The ·oMB. official offered his interpretation after the
subcommittee chair asked aboutthe langnage's effect on a number of federal laws· and
authorities, including "the Hatch Act, nepotism law, criminal conflict .of interest laws, [and]
Executive Order 11222 regulating employee conduct''; the chair explained that shewas asking in
order to draft the committee report. Authorization for the White House Staff at 20 (question of
Rep. Schroeder). But while another ofthe witness's assertions ultimately madeit into the
committee reports-his statement that the language would not affect any laws "dealing with
conduct by public officials once they are appointed," id. (testimony of Mr. Pavis), see also H.R.
Rep. No. 95.. 979, at 6; S. Rep. No. 95-868, at 7-his comment about the anti-nepotism statute
did not. Cf Gustafson v. Alloyd Co., 513 U.S. 561, 580 (1995) (''If legislative history is to be
considered, it is preferable to consult the documents prepared by Congress when deliberating."),
Moreover, the rationale the 0MB official offered for his interpretation-·that ''specific
provisions'" of section 3 n 0 "apply to the President"-·is not particularly convincing; Because
the President exercises .')urisdiction or control" over the entire Executive Branch, section 3110,
by its express terms-, would seeminglyapply to the President's filling of munerous positions in
federal agencies, even if the "without regard to any other provision of law" language carved out
a handful of entities in the Executive Office of the President, such as the White House Office.
· · ;Gf..Ass'n ofAm; Physicians & Surgeons, Inc. v. Clinton, 991 F.2d 898,905 (D.C. Cir.1993)
· (''AAPS'') (suggesting a reading of section 3110 under which "a President would be barred from
appointing his brother as Attorney General, but perhaps not as a White House special assistant").
In our view, therefore, section 105(a) exempts presidential appointments to the White
···' 'House Offic.e .frqtn the scope of the anti-nepotism statute.
II.

Haddon v. Walters,43F.3d' l488 (D.C. Cir; 1995){per curiam), also bears on the
question here. and might appear to resolve it, albeit througl1 a different route. Relying on
arguments that would apply equally to the White House Office,; Haddon/held tliat the Executive .,...
Residence at the White Ho.u,se is not an "Executive agency" within the title 5 definition. Id at ·
1490. Becau$e the prohibition in section 3110. applies, as relevant here; only to appointments in
"Executive agenc[ies]," Haddon seems to compel the conclusion thatthe bar against nepotism
would not extend to appointments in the White House Office.. Reinforcing this conclusion,
though resting on other grounds, an earlier opinion of the D. C. Circuit had expressed "doubt that
Congress intended to include the White House" as an ''agency" undet section 3110. AAPS, 997
F.2d at 905; but see id at 920--21 (Buckley, J., concurring in the judgment) (disputing that
interpretation of "agency~').
The matter, however, is somewhat more complicated. Not every part of the reasoning fo
Haddon is entirely persuasive, and.the court's rationale extends more broadly.than necessary, in
our view,to address the question now at hand. Nonetheless, we believe that Haddon lends
support to our conciusion that the President may appoint relatives to positions in the White.
House Office.

Haddon held that the Executive Residence, which like the White I-louse Office has a staff
appointed under title 3, see 3 l.J.S.C. § IOS(b), is not an "Executive agency" within the title 5
4

Document ID: 0.7.13767.5085-000002

 definition. Haddon was considering 42 U.S.C. § 2000e-16, which extends the antidiscrimination
provisions of Title VII of the Civil Rights Act of 1964 to employees or applicants for
employment "in executive agencies as defined in [5 U.S.C. § 105]." 42 U.S.C. § 2000e-16(a).
Under that definition (the same one that governs section 3110), an "Executive agency" means
"an Executive department, a Government corporation, and an independent establishment."
5 U.S.C. § 105. Because the Executive Residence, like the White House Office, is plainly not an
"Executive department" or a "Government corporation," see id §§ 101, 103, the issue in Haddon
came down to whether the Executive Residence is an "independent establishment," see id. § 104.
The D.C. Circuit had two reasons for concluding that the Executive Residence is not an
independent establishment and therefore not an Executive agency under 5 U.S.C. § 105. First,
the court observed that another statute, 3 U.S.C. § 112, authorizes "[t]he head of any department,
agency, or independent establishment of the executive branch of the Government [to] detail,
from time to time, employees of such department, agency, or establishment to the White House
Office, the Executive Residence at the White House, the Office of the Vice President, the
Domestic Policy Staff, and the Office of Administration." In the court's view, this phrasing
suggested that the listed entities in the Executive Office of the President are not themselves
"department[s], agenc[ies], or independent establishment[s]." Haddon, 43 F.3d at 1490 ("That
Cof).gress distinguished the Executive Residence from the independent establishments, whatever
they may be, suggests that Congress does not regard the Executive Residence to be an
independent establishment, as it uses that term."). Second, the court said that title 5 of the U.S.
Code "relates to government organization and employees and prescribes pay and working
conditions for agency employees," while title 3 of the Code "addresses similar concerns with
respect to the President's advisors and the staff of the Executive Residence." Id The
incorporation ofthe title 5 definition in section 2000e-16, the court explained, suggests that
Congress intended the statute to cover only "title 5" positions-not positions provided for in
3 U.S.C. § 105 and other title 3 authorities. Jd. 2
The D.C. Circuit's first reason may be the less convincing of the two. The wording of the
detail statute, 3 U.S.C. § 112, "distinguish[es]" between the sending and receiving entities only
insofar as the sending entities are identified generically, while the small group of entities that
may receive details, including the Executive Residence and the White House Office, are
specifically named. This wording might well be an apt way to authorize a detail without
implying anything about the status of the receiving entities. Indeed, Congress elsewhere used
similar constructions to provide for transfers between executive departments. Section 2256 of
title 7 declares that the "head of any department" may "transfer to the Department [of
Agriculture]" funds to perform certain inspections, analyses, or tests. Similarly, under 22 U.S.C.
§ 2675, the Secretary of State may ''transfer to any department" certain "funds appropriated to
the Department of State." The generic references to "departments" on one side of these

2 Shortly after Haddon, Congress passed the Presidential and Executive Office Accountability Act, Pub. L.
No. 104-331, 110 Stat. 4053 (1996), which expressly applies Title VII and other federal civil rights and workplace
laws to entities in the Executive Office of the President, including the White House Office and the Executive
Residence. See id. § 2(a) (relevantprnvisions codified at 3 U.S.C. §§ 401,402,411).

5

Document ID: 0.7.13767.5085-000002

 transactions could not be read to imply that the entities on the other side, the Departments of
Agriculture and State, are not "departments."
The court's second argument seems stronger, although the court stated it more broadly
than the facts of Haddon required. The court apparently viewed the provisions in title 3 as
creating a complete substitute for title 5: "while Title 5 relates to government organization and
employees and prescribes pay and working conditions for agency employees, Title 3 addresses
similar concerns with respect to the President's advisors and the staff of the Executive
Residence." Haddon, 43 F.3d at 1490 (citation omitted). The court then quoted, in a
parenthetical, the "without regard" provision for hiring in the Executive Residence that exactly
parallels the one for the White House Office. Id (quoting 3 U.S.C. § 105(b)(l)). Inasmuch as
the plaintiff in Haddon claimed that he had been unlawfully passed over for promotion-that he
had not been appointed to a higher position with higher pay-his claim had to do with exactly
the subjects identified in 3 U.S.C. § 105(b)(1 ), "employment or compensation of persons in the
Government service." Section 105(b)(l) could therefore be understood to displace the
restrictions in Title VII, even if title 3 did not completely displace all of title 5. Thus, the court's
broader statements about the relationship oftitleJ and title 5, though not dicta, went further than
necessary to decide the case and further than we need to go here.
In any event, our conclusion above-that the President's special hiring authority in
3 U.S.C. § 105(a) allows him to appoint relatives to the White House Office without regard to
section 311 O's bar against nepotism-·is consistent with the holding in Haddon and with the
court's reliance on the parallel language in 3 U.S.C. § 105(b)(1 ). In accordance with Haddon,
we,believe thatthe White House Office is not an "Executive agency" insofar as the laws on
employment and compensation are concerned. Both the "without regard" language of section
105{a}and the general treatment of the White House Office under title 3 instead of title 5
undergird this conclusion. 3 Having conformed our analysis, to this extent, with the only
authoritative Judicial guidance bearing on this question, we have no need to delve into the issue
whether the White House Office should be considered outside of title 5 for all.purposes
whenever the application of that title is confined to ''Executive agenc[ies]." 4

3

We do not address the application of section 3110 to any other component of the government.

We have observed before that the D.C. Circuit's reasoning in Haddon would seemingly extend to other
entities listed in section 112 with special hiring authorities under title 3, including the White House Office. See
Memorand~ for Gregory B. Craig, Counsel to the President, from David J. Barron, Acting Assistant Attorney
General, Office of Legal Counsel, Re: Application of5 US. C. § 3110 to Two Proposed Appointments by the
President to Advisory Committees at 18 (Sept. 17, 2009); Application of 18 US.C. § 603 to Contributions to the
President's Re-Election Committee, 27 Op. O.L.C. 118, 118 (2003) ("Section 603 Opinion"). In one circumstance,
however, because of features "unique" to the statutory scheme at issue-the Hatch Act Reform Amendments of
1993 ("HARA")-we have found that the White House Office should be treated as an "Executive agency" under
title 5 notwithstanding Haddon. See Section 603 Opinion, 27 Op. O.L.C. at 119 (White House Office employees
may make contributions to a President's authorized re-election campaign by virtue of an exception available to
employees in an "Executive agency'').
4

Section 603 of title 18 prohibits "an officer or employee of the United States or any department or agency
thereof' from "mak[ing] any contribution ... to any other such officer, employee or person ... if the person
receiving such contribution is the employer or employing authority of the person making the contribution."

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 III.
Our Office, on several occasions, has addressed the application of section 3110 to
presidential appointments, including appointments to the White House Office and other entities
within the Executive Office of the Presiclent. Although our conclusion today departs from some
of that prior work, we think that this departure is fully justified. Our initial opinions on the
subject drew unwarranted inferences about Congress's intent from a single witness statement in a
congressional hearing. Moreover, the surrounding legal context has been transformed by the
subsequent enactment of section 105(a), which expressly and specifically addresses employment
within the White House Office, and also by the D.C. Circuit's decision in Haddon.

A.
Section 3110 was enacted in 1967. In a 1972 memorandum, our Office concluded that
the statute would bar the President from appointing a relative ''to permanent or temporary
employment as a member of the White House staff." Memorandum for John W. Dean, III,
Counsel to the President, from Roger C. Cramton, Assistant Attorney General, Office of Legal
Counsel, Re: Applicability to President of Restriction on Employment of Relatives at 1 (Nov. 14,
1972) ("Cramton Memo"). The Cramton Memo is brief but unequivocal: section 3110, we said,
"seems clearly applicable to ... positions on the White House staff." Id. at 2.
In 1977, we advised that section 3110 woulcl preclude the President from appointing the
First Lady to serve as chair of the President's Commission on Mental Health ("Mental Health
eommission"), whether with or without compensation. See Memorandum for Douglas B.
Huron, Associate Counsel to the President, from John M. Harmon, Acting Assistant Attorney
General, Office of Legal Counsel, Re: Possible Appointment of Mrs. Carter as Chairman of the
Commission on Mental Health (Feb. 18, 1977) ("Mental Health Commission Memo I")
(referencing attached Memorandum for John M. Harmon, Acting Assistant Attorney General, ·

18 U.S.C. § 603(a). But section 603(c) exempts from liability "employee[s] (as defined in section 7322(1) of title
5)"-meaning, employees subject to HARA. Section 7322(1 ), in turn, defines "employee" as "any individual, other
than the President and the Vice President, employed or holding office in ... an Executive agency." 5 U.S.C.
§ 7322(1)(A). Several considerations led us in our Section 603 Opinion to confirm a prior opinion treating the
White House Office as an "Executive agency" for purposes of section 7322(1 ), see Whether 18 US. C. § 603 Bars
Civilian Executive Branch Employees and Officers from Making Contributions to a President's Authorized
Re-Election Campaign Committee, 19 Op. O.L.C. 103 (1995). First, there would be "no purpose" for section
7322(1)'s express exclusion of the President and the Vice President if they were not understood to be "holding
office in ... an Executive agency." Section 603 Opinion, 27 Op. O.L.C. at 119. Second, the exception to HARA's
substantive prohibition on partisan political activity in 5 U.S.C. § 7324(b )(2)(B)(i) applies to "employee[sJ paid
from an appropriation for the Executive Office of the President," further reflecting HARA's assumption that such
employees are otherwise covered. Section 603 Opinion, 27 Op. O.L.C. at 11.9. Third, reading section 7322(1) to
exclude employees of the White House Office "might be thought to produce highly anomalous results," as it would
follow that White House employees "would be entirely free from the restrictions of [HARA]" and "would be able to
engage in all sorts of partisan political activity,'' including by "us[ing] [their] official authority or influence for the
purpose of interfering with or affecting the result ofan election," see 5 U.S.C. § 7323(a)(l). Section 603 Opinion,
27 Op. O.L.C. at I 19. Thus, we determined that there are "powerful reasons to conclude that the term 'Executive
agency' in section 7322(1) does not have the same meaning that section 105 of title 5 generally assigns it (and that
cases like Haddon recognize) for the purpose of title 5." Id.

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Document ID: 0.7.13767.5085-000002

 Office of Legal Counsel, Re: Legality ofthe President's Appointing Mrs. Carter as Chairman of
the Commission on Mental Health(Feb. 17, 1977) ("Mental Health Commission Memo II")).
We determined that the Mental Health Commission, which would be established by Executive
Order and assigned specific authorities, would ''clearly" qualify as an independent establishment
within the "comprehensive" meaning of that term. Mental Health Commission Memo I. Our
analysis noted, however, that the funding for the Commission would come from an annual
appropriation for the Executive Office of the President covering "Unanticipated Needs," and we
accordingly considered the effect oflanguage in that appropriation that, presaging section 105(a),
authorized the President to hire personnel "without regard to any provision of law regulating
employment and pay of persons in the Government service." Mental Health Commission Memo
II, at 5-6. We ultimately concluded that the appropriation language did not override section
3110. Although we did not say that the Mental Health Commission would be located in the
White House Office specifically, our analysis suggested that our conclusion about the
appointment would have been the same, whether or not the position was located there. See id.
Shortly afterward, the White House asked us to answer that very question: whether
section 3110 applied to the contemplated appointment of the President's son to serve as an
unpaid assistant to a member of the White House staff. See Memorandum for the Attorney
General from John M. Harmon, Acting Assistant Attorney General, Office of Legal Counsel, Re:
Employment of Relatives Who Will Serve Without Compensation (Mar. 23, 1977) ("White House
Aide Memo I") (referencing attached Memorandum for John M. Harmon, Acting Assistant
Attorney General, Office of Legal Counsel, Re: Appointment ofPresident's Son to Position in
the White House Office (Mar. 15, 1977) ("White House Aide Memo II")). The Civil Service
Commission, the predecessor of the Office of Personnel Management, had advanced several
ru,-guments why section 3110 did not forbid the President's appointment of relatives to his
personal staff. See White House Aide Memo I, at 1. Reaffirming the points made in the Mental
Health Commission Memos, however, our Office concluded that the. statute also covered the
proposed appointment. Once again, we rejected an argumentthat the language in the annual
appropriation for the White House Office (i.e.,the "without regard" language) exempted those
appointments from section 3110. White House Aide Memo II, at 1~3.
In 1983, we were asked whether the President could appoint a relative to a Presidential
Advisory Committee on Private Sector Initiatives ("CPSI"). See Memorandum for David B.
Waller, Senior Associate Counsel to the President, from Robert B. Shanks, Deputy Assistant
Attorney General, Office of Legal Counsel, Re: Appointment of Member of President's Family· to
PresidentialAdvisory Committee on Private Sector Initiatives (Feb. 28, 1983). We answered
that the President's proposed appointment of a relative to the CPSI raised "virtually the same
problems raised by Mrs. Carter's proposed service on the President's Commission on Mental
Health." Id. at 2. Because we lacked "sufficient time to reexamine the legal analysis contained
in our earlier memoranda," we stated that we had no choice but to "adhere to the conclusion" that
"the President cannot, consistently with section 3110, appoint a relative as an active member of
such a Commission." Id.
Most recently, we advised whether the President could appoint his brother-in-law and his
half-sister to two advisory committees. Once again, we found that section 3110 precluded the
appointments. See Memorandum for Gregory B. Craig, Counsel to the President, from David J.
Barron, Acting Assistant Attorney General, Office of Legal Counsel, Re: Application of 5 US.C.

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Document ID: 0.7.13767.5085-000002

 § 3110 to Two Proposed Appointments by the President to Advisory Committees (Sept. 17, 2009)
("Barron Opinion"). In the course of that analysis, we considered whether one of the
committees, the President's Commission on White House Fellowships ("Fellowships
Commission"), was located within the Executive Office of the President or was instead a freestanding establishmentwithin the Executive Branch. Id. at 14-15. 5 Concluding that, either way,
the Fellowships Commission was, or was within, an "independent establishment" falling within
the title 5 definition of Executive agency, we did not decide the question. Id. But we explicitly
rejected the possibility that the Fellowships Commission constituted a part of the White House
Office. Id. at 14. As a result, the Barron Opinion had no occasion to reapply or reconsider our
precedents finding that section 3110 barred the President from appointing relatives to White
House Office positions. See id. at 18-19 (distinguishing Haddon).

B.
Although none of our previous opinions analyzed the interaction between 3 U.S.C.
§ 105(a) and the anti-nepotism statute, our 1977 memoranda did consider the effect oflanguage
in annual appropriations for the Executive Office of the President that was nearly identical to
section 105(a). Prompted by the inconsistency between our earlier memoranda and the
implications of Haddon, we now revisit the reasoning in those memoranda in order to assess the
issue presented under section 105(a).
While acknowledging that the appropriation language was "broad" and the issue "not
wholly free of doubt," our memorandum regarding the White House appointment reasoned that
section 3110 should be understood as a "specific prohibition" constituting an ''exception to the
general rule that limitations on employment do not apply to the White House Office." White
House Aide Memo II, at 3. We therefore invoked the "basic principle of statutory construction
thata statute dealing with a narrow, precise, and specific subject is not submerged by a later
enacted statute covering a more generalized spectrum." .Id. (quoting Radzanower v. Touche Ross
& Co., 426 U.S. 148, 153 (1976)). But the canon about general and specific statutes seems of
limited help here, because neither of the two relevant statutes can readily be characterized as
more or less specific than the other. To be sure, section 3110 could be said to concem the
"specific" subject of nepotism. But section 105(a) could reasonably be described as a statute
"dealing with [the] narrow, precise, and specific" subject of hiring for the White House Office
that ought to overcome the generally applicable anti-nepotism rule of section 3110.
The 1977 memoranda also put significant weight on the legislative history of section
3110, disceming a clear congressional intent that the Executive Office of the President, including
the White House Office, be among the entities subject to the anti-nepotism prohibition. See
Mental Health Commission Memo I; Mental Health Commission Memo II, at 5; White House

5 We concluded that the other advisory committee at issue, the President's Council on Physical Fitness and
Sports, constituted part of the Department of Health and Human Services. Barron Opinion at 9. Nothing in our
present opinion should be understood to question our prior conclusions about filling positions not covered by the
special hiring authorities in title 3.

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Document ID: 0.7.13767.5085-000002

 Aide Memo I, at 2; White House Aide Memo II, at 2-3. We think that this history is not so
compelling, however, as to direct the outcome on the question here.
Section 3110 was enacte:d as part of the Postal Revenue and Federal Salary Act of 1967.
See Pub. L. No. 90-206, § 221, 81 Stat. 613, 640. When Congress considered and passed the
legislation, the annual appropriations for the Executive Office of the President then in effect
included the permissive language about the President's authority to hire personnel in the White
House Office. See Pub. L. No. 90-47, tit. III, 81Stat. 113, 117 (1967). As our 1977 memoranda
observed, there was no mention of those appropriations or that language during Congress's
consideration of the anti-nepotism provision. But one witness, the Chairman of the Civil Service
Commission, testified before the Senate committee that, in his view, the language then under
consideration would have prevented President Franklin Delano Roosevelt from appointing his
son "at the White House as a civilian aide" (as President Roosevelt had done). Federal Pay
Legislation: Hearings Before the S. Comm. on Post Office and Civil Service, 90th Cong. 366
(1967) ("Federal Pay Legislation Hearings") (testimony of Chairman Macy). Following the
hearing, the Senate amended the provision in the bill.and explicitly named the President as a
"public official" to whom the bar applied. "Because the Senate Hearings contain the only
extended discussion of the provision and the only discussion at all of its application to the
President," we explained in our memorandum concerning the White House appointment, "it
seems appropriate to attach particular significance to the Civil Service Commission's
interpretation of the statute in the course of the hearings. It is reasonable to assume that the
Senate Committee and eventually the Congress acted on the basis of Chairman Macy's
interpretation of the prohibition as drafted." White House Aide Memo II, at 2.
Having reexamined the legislative materials, we no longer would make that assumption.
The Senate committee and·Chairman Macy were reviewing a version of the bill that prohibited
nepotistic appointments to "department[s]," defined more broadly to include "each department, .
agency, establishment, or other organization.unit in or under the ... executive .... branch of the
Government ... including a Government-owned or controlled corporation." H.R. 7977, 90th
Cong. § 222 (as referred to S. Comm. on Post Office and Civil Service, Oct. 16, 1967) (emphasis
added). It is unclear why the Senate amended the provision to apply instead to "Executive
agenc[ies]" andthus to call up the title 5 definition of that term. See H.R. 7977, 90th Cong.,
§ 221 (as reported out of S. Comm. on Post Office and Civil Service, Nov, 21, 1967). The
Senate report does not explain the change. See S. Rep. No. 90-801, at 28 (1967). Nevertheless,
that the Civil Service Commission Chairman was considering different statutory language when
offering his view about the scope of the prohibition dilutes the strength of his testimony-which,
as a witness statement, should typically be afforded less weight to begin with. See S&E
Contractors, 406 U.S. at 13 n.9; Gustafson, 513 U.S. at 580.
Because the appropriation language was apparently never mentioned during the House's
or Senate's.consideration of the bill, the debates and other materials include no clear statement
that the anti-nepotism provision was intended to prevail over the broad hiring authority

10

Document ID: 0.7.13767.5085-000002

 previously granted in that year's appropriation for the Executive Office of the President. 6
Moreover, aside from that single question about the service of President Roosevelt's son as a
White House aide-which was part of a series of questions posed by the senators to Chairman
Macy about the language's application to the President generally, see Federal Pay Legislation
Hearings at 360-69-neither the Senate nor the House appears to have focused on the White
House Office. We therefore are hesitant to infer that the 90th Congress envisioned that section
3110 would overcome the President's hiring authorities under the annual appropriation. We are
even more reluctant to draw that inference with respect to the permanent special hiring authority
for the White House Office that Congress enacted ten years later.

IV.
Finally, we believe that this result-that the President may appoint relatives to his
immediate staff of advisors in the White House Office-makes sense when considered in light of
other applicable legal principles. Congress has not blocked, and most likely could not block, the
President from seeking advice from family members in their personal capacities. Cf In re
Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005) (en bane) (referring to the President's need, "[i]n
making decisions on personnel and policy, and in formulating legislative proposals, ... to seek
confidential information from many sources, both inside the government and outside"); Pub.
Citizen v. US. Dep 't ofJustice, 491 U.S. 440, 466 (1989) (construing the Federal Advisory
Committee Act ("FACA") not to apply to the judicial recommendation panels of the American
Bar Association in order to avoid "formidable constitutional difficulties"). Consequently, even if
the anti-nepotism statute prevented the President from employing relatives in the White House as
advisors, he would remain free to consult those relatives as private citizens. See Barron Opinion
at 8'--9 (finding the application of section 3110 to presidential advisory committees constitutional
in part because "[t]he President remains free to consult his relatives in their private, individual
capacities at the time and place of; and on the subjects of, his choosing"). And our Office has
found that such an informal, ''essentially personal" advisory relationship, even if the private
person offers advice to the President on a "wide variety of issues," does not make that person an
employee of the federal government subject to the conflict of interest laws in title 18. Status of

6 Individual senators did stress the amended provision's breadth in floor statements. See 113 Cong. Rec.
36103 (1967) (statement of Sen. Randolph) (indicating that the Senate amended the provision "to plug any loopholes
which might exist," because "[i]t was critical that the nepotism provisions be applied across the board"); id. (stating
that "[w]e could not stop at a certain point in formulating a policy on nepotism" and "had to apply the policy across
the board"); id. at 36103-04 (suggesting that "the White House believes, as does now the Congress, that a
nonnepotism policy should apply equally to any branch of Government"); id. at 37316 (statement of Sen. Udall)
(explaining that the provision applies "across-the-board, from the highest office to the lowestpaidjob, with equal
force and effect" and that "[n ]o official in any of the three branches of the Government ... may appoint or promote
a relative to any position under his or her control or jurisdiction," and calling it "the strongest possible guarantee
against any abuse of Federal appointive authority and any preference in Federal positions that is adverse to the
public interest"). These statements, whatever their worth in demonstrating congressional intent more generally,
suggest that at least those senators meant for section 3 J 10 to have broad effect across the three branches of
government. But because those statements do not speak to section 31 lO's relationship to the President's hiring
authority under the annual appropriations for the Executive Office of the President-and, of course, could not speak
to the relationship between section 3110 and the later-enacted section 105(a)-they do not illuminate the matter at
hand.

11

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 an Informal Presidential Advisor as a "Special Government Employee", 1 Op. O.L.C. 20, 20-21
(1977) ("Informal Presidential Advisor"); see also id. at 22 ("Mrs. Carter would not be regarded
as a special Government employee solely on the ground that she may discuss governmental
matters with the President on a daily basis."). 7
But the conflict of interest laws do apply to employees of the White House Office. See
18 U.S.C. §§ 203, 205, 207, 208, 209 (all applicable to, inter alia,. officers and employees in the
"executive branch"); id § 202(e)(1) (defining "executive branch" for purposes of those statutes
to include "each executive agency as defined in title 5, and any other entity or administrative unit
in the executive branch"); id. § 207(c)(2)(A)(iii), (d)(l)(C) (applying more stringent postemployment restrictions to employees appointed to the White House Office pursuant to 3 U.S.C.
§ 105(a)(2)); see also, e.g., Applicability of Post-Employment Restrictions in 18 US. C. § 207 to
a Former Government Official Representing a Former President or Vice President in
Connection with the PresidentialRecords Act, 25 Op. O.L.C. 120 (2001) (considering section
207's application to former employees of the White House Office).

A President wanting a relative's advice on governmental matters therefore has a choice:
to seek that advice on an unofficial, ad hoc basis without conferring the status and imposing the
responsibilities that accompany formal White House positions; or to appoint his relative to the
White House under title 3 and subject him to substantial restrictions against conflicts of interest.
Cf AAPS, 997 F.2d at 911 n.10 (declining, after holding that the First Lady qualifies as a "fulltime officer or employee" of the government under FACA, to decide her status under the conflict
of interest statutes). In choosing his personal staff, the President enjoys an unusual degree of
freedom, which Congress found suitable to the demands of his office. Any appointment to that
staff, however, carries with it a set of legal restrictions, by which Congress has regulated and
fenced in the conduct of federal officials.

7 Our opinion explained, however, that while the informal presidential advisor's general practice (as we
understood it) of discussing policy issues directly with the President did not itselfrender him a government
employee, his more extensive "work" on a particular "current social issue"-in connection with which the advisor
"called and chaired a number of meetings that were attended by employees of various agencies" and "assumed
considerable responsibility for coordinating the Administration's activities in that particular area''-did cross a line
and made him a government employee for purposes of that work. Informal Presidential Advisor, l Op. O.L.C; at
23.

12

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 *

*

*

In our view, section 105(a) of title 3 exempts appointments to the White House Office
from the bar in section 3110 of title 5. Section 3110 therefore would not prohibit the
contemplated appointment.

~~I<'_~
DANIEL L. KOFFSKY
Deputy Assistant Attorney General
Office ofLegal Counsel

13

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 OLC Docum ent Metadata

I

field Name
Date of Issuance

field Entry
1/20/2017

Title

Application of the Anti-Nepotism Statute to a Presidential Appointment in
the White House Office

Author

Daniel L. Koffsky

Document Type

Legal Advice

Document Format

Memorandum

Filename

LA 20170120 Application of the Anti-Nepotism Statute to a Presidential
Appointment in the White House Office

Recipient Name

for Legal AdYice Only
Donald F. McGahn II

Recipient Title

Counsel to the President

Recipient Agency

Office of the White House Counsel

I

Document ID: 0.7.13767.5085-000003