Mandatory Disclosure of Civil Rights Cold Case Records

(Slip Opinion)

Mandatory Disclosure of Civil Rights Cold Case Records

The mandatory disclosure regime in S. 3191, the Civil Rights Cold Case Records Collec-

tion Act of 2018, could curtail the President’s ability to protect information subject to

executive privilege.

S. 3191 unconstitutionality restricts the qualifications for appointees to the Civil Rights

Cold Case Records Review Board and unconstitutionally dictates the timing of their

appointments.

S. 3191 unconstitutionally restricts the President’s supervision of th e Executive Branch

by prohibiting the President from removing Review Board members absent cause.

February 4, 2019

MEMORANDUM OPINION FOR THE

DEPUTY COUNSEL TO THE PRESIDENT

On December 27, 2018, Congress presented S. 3191, the Civil Rights

Cold Case Records Collection Act of 2018, to the President as an en-

rolled bill. Relying on advice from this Office, the Department of Justice

had raised serious constitutional concerns about earlier versions of this

bill.1 Congress alleviated some of those concerns, but major issues re-

mained in the enrolled version. When confronted with legislation pre-

senting similar problems, Presidents have historically issued signing

statements to explain why the Executive believes certain provisions

would violate the Constitution and how the President would interpret or

implement provisions to avoid constitutional infirmities. Consistent with

this Office’s advice, when the President signed this bill into law on

January 8, 2019, he issued a signing statement indicating how the Ad-

ministration would interpret and apply the Act in a manner consistent

with the Constitution. See Statement by the President (Jan. 8, 2019),

https://www.whitehouse.gov/briefings-statements/statement-by-the-

president-24/ (“2019 Signing Statement”); Civil Rights Cold Case Rec-

1 See Letter for Ron Johnson, Chairman, Committee on Homeland Security and Gov-

ernmental Affairs, U.S. Senate, from Prim F. Escalona, Principal Deputy Assistant

Attorney General, Office of Legislative Affairs, Dep’t of Justice (Nov. 13, 2018); Letter

for Trey Gowdy, Chairman, Committee on Oversight and Government Reform, U.S.

House of Representatives, from Prim F. Escalona, Principal Deputy Assistant Attorney

General, Office of Legislative Affairs, Dep’t of Justice (Nov. 13, 2018).

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43 Op. O.L.C. __ (Feb. 4, 2019)

ords Collection Act of 2018, Pub. L. No. 115-426, 132 Stat. 5489 (2019).

This memorandum explains the basis for our advice.

Congress appears to have modeled this legislation after the President

John F. Kennedy Assassination Records Collection Act of 1992, Pub. L.

No. 102-526, 106 Stat. 3443 (“JFK Act”). The JFK Act created an inde-

pendent agency—the Assassination Records Review Board—charged with

determining whether to require the public disclosure of records related to

President Kennedy’s assassination. When President George H.W. Bush

signed that bill into law, he noted that he “fully support[ed] the goals of

this legislation.” Statement on Signing the President John F. Kennedy

Assassination Records Collection Act of 1992 (Oct. 26, 1992), 2 Pub.

Papers of Pres. George Bush 2004, 2004 (1992–93) (“1992 Signing

Statement”). But his signing statement also explained that the JFK Act’s

mandatory disclosure regime encroached upon the President’s control

over information subject to executive privilege—a constitutional authority

that “cannot be limited by statute”—and had to be interpreted in a manner

consistent with the President’s constitutional authority. Id. at 2004–05.

President Bush observed that the JFK Act also presented other significant

separation of powers concerns. Id. at 2005.

S. 3191 replicates, and in some instances exacerbates, the constitutional

infirmities of the JFK Act. It creates an independent agency—the Civil

Rights Cold Case Records Review Board (“Review Board”)—and tasks it

with publicly releasing all records relating to unsolved civil rights cases

unless clear and convincing evidence establishes that disclosure would

pose a concrete threat to national security, foreign affairs, law enforce-

ment, or certain privacy interests. As under the JFK Act, this mandatory

disclosure regime could curtail the President’s ability to protect infor-

mation subject to executive privilege. In his signing statement, the Presi-

dent explained that, although he “fully support[s] the goals of this Act,”

he “cannot abdicate [his] constitutional responsibility to protect such

information when necessary.” 2019 Signing Statement. He thus signed the

Act “on the understanding that the public disclosure of records may be

postponed where necessary to protect executive privilege” and explained

that he would interpret the Act “consistent with [his] authority under the

Constitution to protect confidential executive branch materials.” Id.

This legislation also trenches upon the constitutional separation of

powers in other ways. The Appointments Clause, U.S. Const. art. II, § 2,

cl. 2, gives the President broad discretion when appointing principal

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Mandatory Disclosure of Civil Rights Cold Case Records

officers, but the Act unconstitutionally restricts the qualifications for

Review Board appointees and impermissibly dictates the timing of

future appointments. The President’s signing statement indicated that he

“will make every effort to heed” those restrictions, “but, consistent with

[his] constitutional authorities,” will treat those restrictions as advisory.

Finally, the Act purports to restrict the President’s ability to supervise

principal officers performing sensitive executive functions, by insulating

the Review Board members from removal except for cause. Because

Congress cannot constitutionally “insulate decisionmakers who exercise

core executive functions from plenary presidential supervision,” the

President stated that he “will, therefore, comply with these removal

restrictions only insofar as they comport with [his] constitutional re-

sponsibility to supervise the executive branch.” 2019 Signing Statement.

I.

This legislation establishes a new “independent agency,” the Civil

Rights Cold Case Records Review Board, and vests it with broad powers

to decide whether to direct the public release of “civil rights cold case

records.” S. 3191, § 5. The Review Board has jurisdiction over a poten-

tially wide range of materials, because such records include all records of

any “civil rights cold case,” defined as “any unsolved case” arising from

events between January 1, 1940 and December 31, 1979, “related to”

certain federal civil rights statutes—namely 18 U.S.C. § 241 (conspiracy

against rights), 18 U.S.C. § 242 (deprivation of rights under color of

law), 18 U.S.C. § 245 (federally protected activities), 18 U.S.C. §§ 1581

and 1584 (peonage and involuntary servitude), 42 U.S.C. § 3631 (crimi-

nal interference with housing-related rights), and any other federal law in

effect by December 31, 1979 that is enforced by the criminal section of

the Department of Justice’s Civil Rights Division. S. 3191, § 2(2). Cold

case records also include any records “related to a civil rights cold case.”

Id. § 2(3)(A). Because of the breadth of the phrase “related to,” such

cases need not involve violations of those statutes. Further, cold case

records extend well beyond files created during any investigation of such

cases, and could encompass materials created long after 1979. 2

2 The Assassination Records Review Board interpreted the analogous phrase “relate to

the assassination of President John F. Kennedy” in the definition of an “assassination

record,” JFK Act § 3(2), 106 Stat. at 3444, to encompass records generated in the 1990s

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43 Op. O.L.C. __ (Feb. 4, 2019)

The Review Board also has the power to decide whether to order the

public disclosure of records from all three branches of government,

because civil rights cold case records encompass any relevant material

that any branch of government originated or possessed. The definition of

a “civil rights cold case record” under the Act includes records “created

or made available for use by, obtained by, or [which] otherwise came

into the possession of” all executive agencies, independent agencies, and

“any other entity of the Federal Government.” S. 3191, § 2(3)(B); see id.

§ 2(6) (defining “Government office” to include “any office of the Fed-

eral Government” holding cold case records); id. § 2(10) (defining “orig-

inating body” to include executive agencies, congressional committees,

and any “other Governmental entity that created a record”); id. § 7(c)(5)

(contemplating that records from outside the Executive Branch qualify as

cold case records).3

To make these disclosure decisions, the Review Board has five mem-

bers, whom the President must appoint subject to the advice and consent

of the Senate. Id. § 5(b)(1). Though the President chooses nominees, the

Act purports to confine his choice to individuals satisfying numerous

qualifications, including never having been involved in any investiga-

tion or inquiry related to any civil rights cold case. Id. § 5(b)(2)(B), (3).

The Act also directs that, “so far as practicable,” appointments should

occur within 60 days of enactment. Id. § 5(b)(2)(A). Appointment of a

replacement must occur “in the same manner as the original appointment

within 60 days of the occurrence of the vacancy.” Id. § 5(d). Thus, in the

event of a vacancy, the Act purports not only to impose the same quali-

fications on nominees, but also to require that the entire process, from

the initial selection to Senate confirmation and presidential appointment,

occur within 60 days.

Once constituted, the Review Board has four years to operate, but can

add another year at its discretion to complete its work. Id. § 5(n)(1). The

pertaining to investigations or inquiries into the assassination. Temporary Certification

Under the President John F. Kennedy Assassination Records Collection Act of 1992,

41 Op. O.L.C. __, at *3 (Oct. 26, 2017).

3 The bill does not appear to subject grand jury materials or other sealed materials that

otherwise qualify as cold case records to the mandatory disclosure procedures. Rather, the

bill authorizes the Review Board to “request the Attorney General to petition any court in

the United States” to release such records, and requires the Attorney General to respond

to such a request within 45 days. S. 3191, § 8(a)(1), (2)(A), (3)(A).

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Mandatory Disclosure of Civil Rights Cold Case Records

Act authorizes the President to remove Review Board members from

office only for cause: “inefficiency, neglect of duty, malfeasance in office,

physical disability, mental incapacity, or any other condition that substan-

tially impairs the performance of the member’s duties.” Id. § 5(f )(1)(B).

And the President must notify Congress of the justification for any re-

moval within ten days. Id. § 5(f )(2)(A). A member who is removed can

seek review in the U.S. District Court for the District of Columbia. Id.

§ 5(f )(3).

The records review process will work as follows: Within two years of

the Act’s enactment, every relevant entity within the federal govern-

ment—whether in the Executive, Legislative, or Judicial Branch—must

identify all cold case records in its possession and decide whether to

publicly disclose them. If the entity determines that a record can be pub-

licly disclosed, it must transmit the record to the Archivist of the United

States, id. § 3(e)(1)(A), who must make the record publicly available

within 60 days, id. § 3(b).

The Act authorizes postponement of disclosure in only two circum-

stances. First, the Attorney General can temporarily delay transmitting

records to the Archivist by certifying within two years of the Act’s en-

actment that he “intends to reopen and pursue prosecution of the civil

rights cold case to which a civil rights cold case record relates.” Id.

§ 3(e)(2). That certification gives the Attorney General one year to file an

indictment or information; if he fails to do so, he must then transmit the

records to the Archivist. Id. § 3(e)(2)(B). If he pursues the case, he may

delay transmitting records to the Archivist until 90 days after either “final

judgment is entered in the proceedings relating to” the cold case or such

proceedings were “dismissed with prejudice.” Id. § 3(e)(2)(A). The Act

does not include any mechanism for requesting further delay on another

basis after this temporary postponement ends, even if the case is under

active investigation at that point. It is also unclear whether the Attorney

General can seek Review Board approval of further postponement at that

juncture.

Second, within two years of the Act’s enactment, any governmental

entity with a cold case record can seek the Review Board’s approval to

postpone disclosure. See id. §§ 3(e)(1)(B), 5(h), 5(i)(1)(A). But the Re-

view Board must order public disclosure absent “clear and convincing

evidence” that the record is “not a civil rights cold case record” or that it

qualifies for postponement under one of the narrow exceptions in sec-

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43 Op. O.L.C. __ (Feb. 4, 2019)

tion 4 of the Act. Id. § 7(c)(1).4 Even if the Review Board determines that

postponement is warranted, it must designate a recommended specific

time or occurrence “following which the material may be appropriately

disclosed to the public.” Id. § 7(c)(3)(B).

Once the Review Board decides whether to postpone or withhold “ex-

ecutive branch civil rights cold case record[s] or information,” the Presi-

dent has “sole and nondelegable authority to require the disclosure or

postponement of such record or information” and “shall” notify the Re-

view Board of his determination “within 30 days.” Id. § 7(d)(1). Further,

the Act purports to limit the President’s postponement power by authoriz-

ing him to override the Review Board’s determination only if he finds that

the record satisfies the section 4 postponement criteria. Id. The Review

Board’s decisions as to records originating in or received by the Legisla-

tive or Judicial Branches are final; representatives of those branches have

no similar means to override decisions mandating the disclosure of their

records.

Postponed records—including those the President orders postponed—

undergo periodic further review. Id. §§ 3(f ), 7(d)(2). The Archivist and

the governmental entity that created the record must review every post-

poned record annually, “consistent with the recommendations of the

Review Board” regarding circumstances warranting future disclosure. Id.

§ 3(f )(1). The Act does not specify a mechanism for the President or

anyone else to review these decisions.

4 Section 4 authorizes postponement only if disclosure “would clearly and demon-

strably be expected to” (1) reveal certain classified information or “cause identifiable or

describable damage to national security, military defense, law enforcement, intelligence

operations, or the conduct of foreign relations that is of such gravity that it outweighs

the public interest in disclosure”; (2) reveal a living confidential informant and “pose a

substantial risk of harm to that individual”; (3) “constitute an unwarranted invasion of

personal privacy”; (4) compromise a confidentiality understanding with a cooperating

individual, such that the harm of disclosure would outweigh the public interest;

(5) “endanger the life or physical safety of any individual”; or (6) “interfere with

ongoing law enforcement proceedings.” The bill elsewhere states that the Review

Board “shall consider[] . . . relevant laws and policies protecting criminal records of

juveniles,” in addition to the section 4 criteria. S. 3191, § 7(c)(1)(B). But it is unclear

whether government entities can recommend postponement on this basis, see id. § 4,

and the bill does not authorize the President to reverse the Review Board’s determina-

tion when it has inadequately considered such laws or policies, id. § 7(d)(1) (requiring

the President to apply “the standards set forth in section 4”).

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Mandatory Disclosure of Civil Rights Cold Case Records

Finally, the Act mandates disclosure of all postponed records in 25

years unless disclosure (1) would “cause identifiable or describable dam-

age to national security, military defense, law enforcement, intelligence

operations, or the conduct of foreign relations that is of such gravity that

it outweighs the public interest in disclosure” or (2) would reveal certain

classified information. Id. § 3(f )(4)(A)(i). A governmental entity can

recommend postponing disclosure beyond 25 years only if it makes the

case, in writing, as to why its record satisfies those criteria. Even then,

the Archivist must “agree[] with the written recommendation” for post-

ponement to continue. Id. § 3(f )(4)(A)(iii).

II.

In various applications, this legislation purports to impermissibly re-

strict the President’s exercise of his constitutional authority to control the

disclosure of information protected by executive privilege. S. 3191 con-

tains various grounds for postponing the disclosure of cold case records,

and in many instances those grounds may allow governmental entities to

protect information subject to executive privilege. But the criteria for

postponement do not appear to encompass the gamut of privileged infor-

mation and erect significant obstacles to its protection. Furthermore, the

Act purports to unconstitutionally dictate the disclosure of privileged

information within the Executive Branch and to Congress.

The President’s obligation to “take Care that the Laws be faithfully ex-

ecuted,” U.S. Const. art. II, § 3, requires him to interpret and implement

statutes in a constitutional manner. See Presidential Signing Statements,

31 Op. O.L.C. 23, 27 (2007); Presidential Authority to Decline to Execute

Unconstitutional Statutes, 18 Op. O.L.C. 199, 202 (1994). Faced with

legislation raising similar constitutional problems, Presidents have fre-

quently issued signing statements indicating that the Executive will treat

as advisory provisions that purport to mandate the disclosure of privileged

information. See, e.g., Presidential Signing Statements, 31 Op. O.L.C. at

33–34. Indeed, President Bush’s signing statement regarding similar

provisions of the JFK Act explained that because Congress cannot limit

the President’s constitutional authority to protect privileged information,

the President would protect such information “when necessary” and

would interpret relevant provisions “consistently with [his] authority

under the Constitution to protect confidential executive branch materials.”

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43 Op. O.L.C. __ (Feb. 4, 2019)

1992 Signing Statement at 2004–05.5 We accordingly advised that the

President should notify Congress and the public that he would treat simi-

lar provisions in S. 3191 the same way.

A.

We start with the constitutional concerns arising from the Act’s manda-

tory disclosure regime. The President’s authority “to prevent disclosure of

certain Executive Branch documents under the doctrine of executive

privilege” is “fundamental to the President’s ability to carry out his con-

stitutionally prescribed duties.” Prosecution for Contempt of Congress of

an Executive Branch Official Who Has Asserted a Claim of Executive

Privilege, 8 Op. O.L.C. 101, 116 (1984) (“Contempt of Congress”). “[I]n

order for the President to carry out his constitutional responsibility to

enforce the laws, he must be able to protect the confidentiality of certain

types of documents and communications within the Executive Branch.”

Id. at 115; see also Congressional Requests for Confidential Executive

Branch Information, 13 Op. O.L.C. 153, 154 (1989) (“Congressional

Requests”) (executive privilege “is a necessary corollary of the executive

function vested in the President by Article II of the Constitution”). The

Supreme Court has thus recognized that executive privilege is “fundamen-

tal to the operation of Government and inextricably rooted in the separa-

tion of powers under the Constitution.” United States v. Nixon, 418 U.S.

683, 708 (1974).

Although there is no “absolute, unqualified Presidential privilege” to

prevent the disclosure of all privileged information, id. at 706, the

privileged information at issue falls in the heartland of information that

the Executive Branch must be able to protect to perform its constitu-

tionally assigned functions. “Opinions by Attorneys General and this

Office have repeatedly recognized the President’s authority and respon-

5See also, e.g., Statement on Signing the Consolidated Appropriations Act, 2017

(May 5, 2017), 2017 Daily Comp. Pres. Doc. No. 312, at 2 (May 5, 2017); Statement on

Signing the Omnibus Appropriations Act, 2009 (Mar. 11, 2009), 1 Pub. Papers of Pres.

Barack Obama 216, 216–17 (2009); Statement on Signing the E-Government Act of 2002

(Dec. 17, 2002), 2 Pub. Papers of Pres. George W. Bush 2200, 2201 (2002); Statement on

Signing the Omnibus Consolidated and Emergency Supplemental Appropriations Act,

1999 (Oct. 23, 1998), 2 Pub. Papers of William J. Clinton 1843, 1848 (1998); Statement

on Signing the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (Oct. 28,

1991), 2 Pub. Papers of Pres. George Bush 1344, 1345–46 (1991).

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Mandatory Disclosure of Civil Rights Cold Case Records

sibility to protect against the release of information affecting the Ex-

ecutive Branch’s intelligence activities, military operations, conduct of

foreign affairs, or law enforcement proceedings, even in the face of

statutory disclosure requirements.” Temporary Certification Under the

President John F. Kennedy Assassination Records Collection Act of

1992, 41 Op. O.L.C. __, at *16 (Oct. 26, 2017) (“Temporary Certifica-

tion”); see id. at *16–18; In re Sealed Case, 121 F.3d 729, 736–39 (D.C.

Cir. 1997). S. 3191, however, purports to cabin the President’s authority

by imposing statutory criteria that could subject large swaths of privi-

leged information to mandatory disclosure during the initial review

process. And provisions concerning successive rounds of review and

disclosure of remaining records 25 years after the Act’s enactment could

jeopardize protection even for privileged records that satisfy the initial

postponement criteria.

With respect to initial disclosure determinations, the Act will protect

privileged information only based on “clear and convincing evidence”

that a record satisfies one of the statutory grounds for postponement in

section 4. S. 3191, § 7(c)(1). But the President cannot lose the const-

itutional prerogative of asserting executive privilege merely because

an agency fails to satisfy a burden of proof that exceeds the standard in

most civil cases. Such a regime could impermissibly compel the disclo-

sure of privileged records irrespective of how greatly their disclosure

would interfere with Executive Branch functions.

Furthermore, no matter what the standard of proof, the Act purports to

disable the President from protecting an array of privileged information

that may not fit within the narrow statutory grounds in section 4. For

example, the deliberative process component of executive privilege en-

compasses “‘advisory opinions, recommendations and deliberations

comprising part of a process by which government decisions and policies

are formulated’”—materials often found in investigative files. Dep’t of

the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8

(2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150

(1975)). Such files may also contain “‘communications between high

Government officials and those who advise and assist them in the perfor-

mance of their manifold duties,’” which also fall within the scope of the

privilege. Assertion of Executive Privilege with Respect to Clemency

Decision, 23 Op. O.L.C. 1, 2 (1999) (opinion of Attorney General Janet

Reno) (quoting United States v. Nixon, 418 U.S. at 705). As the Supreme

9

43 Op. O.L.C. __ (Feb. 4, 2019)

Court has explained, “the valid need for protection” of such communica-

tions is “too plain to require further discussion.” United States v. Nixon,

418 U.S. at 705. Yet section 4 of the Act contains no express mechanism

for protecting information on that basis. The JFK Act similarly failed to

“contemplate nondisclosure of Executive Branch deliberations,” prompt-

ing President Bush to explain that he could not “abdicate [his] constitu-

tional responsibility” to postpone records containing such deliberative

information “when necessary.” 1992 Signing Statement at 2004.

The section 4 postponement criteria could also inadequately protect

records subject to the law enforcement component of executive privilege,

which gives the President the discretion to withhold investigative files,

whether open or closed, from disclosure. See generally Assertion of

Executive Privilege Concerning Special Counsel’s Interviews, 32 Op.

O.L.C. 7, 10–11 (2008).6 As Attorney General William French Smith

explained, “[i]f the President believes that certain types of information in

law enforcement files are sufficiently sensitive that they should be kept

confidential, it is the President’s constitutionally required obligation to

make that determination.” Assertion of Executive Privilege in Response

to Congressional Demands for Law Enforcement Files, 6 Op. O.L.C. 31,

35 (1982); see also Temporary Certification, 41 Op. O.L.C. __, at *16;

Response to Congressional Requests for Information Regarding Deci-

sions Made Under the Independent Counsel Act, 10 Op. O.L.C. 68, 75–

78 (1986) (“Response to Congressional Requests”).

Investigative files often contain factual information that could, if dis-

closed, compromise an investigation or prosecution, reveal sensitive

investigative techniques, or endanger confidential sources. Such files may

also contain strategic information about the Department of Justice’s plans

for investigating and prosecuting a case. See Position of the Executive

Department Regarding Investigative Reports, 40 Op. Att’y Gen. 45, 46

(1941) (opinion of Attorney General Robert Jackson) (“Counsel for a

6 See also Contempt of Congress, 8 Op. O.L.C. at 117–18 (“[T]he Executive’s ability

to enforce the law would be seriously impaired . . . if the Executive were forced to

disclose sensitive information on case investigations and strategy from open enforcement

files.”); Response to Congressional Requests, 10 Op. O.L.C. at 77 (“Obviously, much of

the information in a closed criminal enforcement file, such as unpublished details of

allegations against particular individuals and details that would reveal confidential

sources, and investigative techniques and methods, would continue to need protec-

tion[.]”).

10

Mandatory Disclosure of Civil Rights Cold Case Records

defendant or prospective defendant[] could have no greater help than to

know how much or how little information the Government has, and what

witnesses or sources of information it can rely upon.”); cf. United States

v. Agurs, 427 U.S. 97, 108–13 (1976) (prosecutors are constitutionally

obligated to disclose material favorable evidence if nondisclosure would

deny defendant a fair trial, but “there is no constitutional requirement that

the prosecution make a complete and detailed accounting to the defense of

all police investigatory work”) (internal quotation marks omitted). While

not every cold case record may contain such sensitive information—let

alone information that remains sensitive today—the President must retain

the ability to withhold such records when disclosure would interfere with

his constitutional responsibility to enforce the law. As President Bush

emphasized when objecting to similar provisions in the JFK Act, the

President’s “authority to protect” information subject to executive privi-

lege “comes from the Constitution and cannot be limited by statute.” 1992

Signing Statement at 2004.

The Act, however, purports to replace the President’s judgment about

the sensitivity of law enforcement files with statutory grounds for with-

holding law enforcement records. The phrase “cold case records” refers to

all records “related to” “unsolved” criminal cases “related to” alleged

violations of certain civil rights statutes between 1940 and 1980—cases

that may never have been closed and may still be under active investiga-

tion. S. 3191, § 2(2), 2(3)(A).7 Yet the Act allows agencies to withhold

investigative files only if disclosure would (1) “cause identifiable or

describable damage to . . . law enforcement . . . of such gravity that it

outweighs the public interest in disclosure,” id. § 4(1)(A); (2) reveal the

identity of living confidential sources and “pose a substantial risk of harm

to that person,” id. § 4(2); (3) “compromise the existence of an under-

standing of confidentiality” with a cooperating individual and “be so

harmful that the understanding of confidentiality outweighs the public

7 While courts have recognized that the common-law law enforcement privilege does

not extend indefinitely, it usually expires “at the close of an investigation or at a reasona-

ble time thereafter based on a particularized assessment of the document.” In re U.S.

Dep’t of Homeland Security, 459 F.3d 565, 571 (5th Cir. 2006). Many cold case records,

however, may involve open investigations, and this Office has long recognized that the

law enforcement component of executive privilege can extend to closed files as well. See

supra p. 10.

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43 Op. O.L.C. __ (Feb. 4, 2019)

interest,” id. § 4(4); or (4) “interfere with ongoing law enforcement pro-

ceedings,” id. § 4(6).

These statutory exceptions could curtail the President’s ability to safe-

guard privileged information even when disclosure could jeopardize

important law enforcement interests. For example, cold case records may

contain information that investigators withheld in order to test the veracity

of confessions. But unless disclosure of such information would cause

“identifiable or describable damage” to law enforcement “of such gravity

that it outweighs the public interest in disclosure,” the Act appears to

require public disclosure. Furthermore, the Act could require the govern-

ment to reveal the identities of its confidential sources even if there were

some risk they would face harm, so long as the risk would not be “sub-

stantial.” Likewise, the Act arguably compels the disclosure of confiden-

tial cooperation—even ongoing cooperation—if the harm from disclosure

would not outweigh the public interest in disclosure. But the law en-

forcement component of executive privilege protects such information

against public disclosure based on whether disclosure would “discour-

ag[e] citizens from giving the government information,” among other

considerations. Temporary Certification, 41 Op. O.L.C. __, at *13–14 n.7

(internal quotation marks and citations omitted). While the Act authorizes

withholding if disclosure would “interfere with ongoing law enforcement

proceedings,” it is unclear whether that would cover interference with

investigative steps preceding an indictment or the convening of a grand

jury, especially if the investigation were inactive at the time of review.

Compounding these concerns, the Act could handcuff the Attorney

General in prosecuting cold cases for which the statute of limitations has

not expired. The Attorney General has only two years from enactment to

certify that he is temporarily delaying the transmission of records to the

Archivist in a cold case he may wish to reopen and prosecute. S. 3191,

§ 3(e)(2). But other agencies with cold case records potentially relevant to

any prosecution face the same two-year window to decide whether to

disclose those records. Id. § 3(e)(1). This provision could artificially

constrain the Attorney General’s decisions about whether to reopen cold

cases, lest governmental entities outside the Executive Branch beat him to

the punch and publicly disclose records that would thwart any future

prosecution. Even if the Attorney General makes the requisite certifica-

tion to protect such records, the Act mandates their transmission to the

Archivist within one year, unless the Attorney General has brought charg-

12

Mandatory Disclosure of Civil Rights Cold Case Records

es by then. Id. § 3(e)(2). And the Act does not clearly provide for post-

ponement of public disclosure after transmission, especially if the Review

Board has terminated by that point. In other words, the Attorney General

could certify that he plans to reopen a case based on a new lead, but if an

indictment or information takes longer than a year to file, any new and

highly sensitive information could, perversely, become more vulnerable to

disclosure because of the certification.

The Act could also intrude on the President’s control over information

relating to national security and foreign relations, which involve core

aspects of executive privilege. The President’s “authority to classify and

control access to information bearing on national security . . . flows pri-

marily from th[e] constitutional investment of [the Commander in Chief ]

power in the President,” and the “authority to protect such information

falls on the President as head of the Executive Branch and as Commander

in Chief.” Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988). Thus,

“since the Washington Administration, Presidents and their senior advis-

ers have repeatedly concluded that our constitutional system grants the

executive branch authority to control the disposition of secret infor-

mation.” Whistleblower Protections for Classified Disclosures, 22 Op.

O.L.C. 92, 97 (1998); see also Presidential Certification Regarding the

Disclosure of Documents to the House of Representatives Under the

Mexican Debt Disclosure Act of 1995, 20 Op. O.L.C. 253, 269–76 (1996).

Courts, too, have “shown the utmost deference to Presidential responsibil-

ities” over the control of “military or diplomatic secrets.” United States v.

Nixon, 418 U.S. at 710.

The Act, however, allows withholding only when disclosure would re-

veal certain kinds of classified information or would “cause identifiable or

describable damage to national security, military defense, law enforce-

ment, intelligence operations, or the conduct of foreign relations that is of

such gravity that it outweigh[ed] the public interest in disclosure.”

S. 3191, § 4(1). It thus could mandate the disclosure of sensitive infor-

mation if the harm from disclosure is insufficiently grave or particular-

ized. It may well be that few cold case records contain information bear-

ing on national security or foreign relations, let alone information this

statutory standard would not protect. But, to the extent they do, the Con-

stitution requires that the President retain ultimate control over whether,

when, and to whom to disclose them. President Bush deemed similar

provisions in the JFK Act unduly “narrow” and explained they could not

13

43 Op. O.L.C. __ (Feb. 4, 2019)

prevent him from exercising his constitutional duty to protect national

security information as he saw necessary. 1992 Signing Statement at

2004.

Finally, even privileged information that initially fits within a statutory

ground for postponement would not be assured continued protection.

First, S. 3191 imposes even narrower grounds for withholding during

subsequent rounds of re-review. To justify any initial postponement, the

Review Board must recommend a future time or event when a record

may be disclosed. S. 3191, § 7(c)(3)(B). That recommendation then binds

governmental entities and the Archivist when they conduct every round

of annual re-review. Id. § 3(f )(1). Thus, after the Review Board picks a

future date or occurrence that it believes should trigger disclosure, the

Act does not expressly provide the President with a way to intervene at

that juncture if he believes the information remains sensitive notwith-

standing the Review Board’s recommendation.

Second, the Act could insufficiently protect even sensitive records

postponed during successive rounds of re-review. Such records would

almost certainly contain privileged information. But S. 3191 mandates the

disclosure of all postponed records within 25 years unless it would cause

“identifiable or describable damage to national security, military defense,

law enforcement, intelligence operations, or the conduct of foreign rela-

tions that is of sufficient gravity that it outweighs the public interest in

disclosure,” id. § 3(f )(4)(A)(i)(I), or would reveal certain kinds of classi-

fied information, id. § 3(f )(4)(A)(i)(II). That basis for disclosure is nar-

rower than the section 4 postponement criteria, and could thus mandate

disclosure even of records that continued to meet those criteria. Although

the sensitivity of this information may wane over time, this is a judgment

committed to the discretion of the President, not Congress. Cf. Temporary

Certification, 41 Op. O.L.C. __, at *15 (noting that “[s]erious constitu-

tional concerns would arise if the JFK Act were construed to require . . .

premature disclosures of records while they are likely to contain still-

sensitive information”). 8

8The bill also lacks any mechanism whereby legislative entities or the courts could

assert any relevant constitutional privileges to protect the confidentiality of any cold

case records they originated. See In re Grand Jury, 821 F.2d 946, 957 (3d Cir. 1987)

(“[T]he legislator’s need for confidentiality is similar to the need for confidentiality

between judges, between executive officials, and between a President and his aides. The

14

Mandatory Disclosure of Civil Rights Cold Case Records

B.

The Act also purports to interfere with the President’s authority to con-

trol access to privileged information within the Executive Branch or by

Congress. But Congress may not “act to prohibit the supervision [by the

President] of the disclosure of any privileged information, be it classified,

deliberative process or other privileged material.” Authority of Agency

Officials to Prohibit Employees From Providing Information to Congress,

28 Op. O.L.C. 79, 80–81 (2004) (“Authority of Agency Officials”); see

The Department of Defense’s Authority to Conduct Background Investiga-

tions for Its Personnel, 42 Op. O.L.C. __, at *9–10 (Feb. 7, 2018) (“Con-

gress may not impair the President’s control over national security infor-

mation”); Egan, 484 U.S. at 527 (the President’s “authority to . . . control

access to information bearing on national security” is an incident of his

Article II powers). Such interference is unconstitutional regardless of

whether Congress is dictating the flow of privileged information within

the Executive Branch or mandating its own access.

Like the JFK Act, this bill impedes the President’s control over the dis-

semination of privileged information in two respects. First, it requires

governmental entities to give the Review Board access to all identified

cold case records, see S. 3191, § 5(i)(1)(A), as well as any “additional

information, records, or testimony . . . which the Review Board has reason

to believe” it must obtain in order “to fulfill its functions and responsibili-

ties under this Act,” id. § 5(i)(1)(B), all of which may contain privileged

information. Decisions about when, how, and to whom to disseminate

such sensitive information are central to the President’s authority to

supervise and manage the Executive Branch. See Access to Classified

Information, 20 Op. O.L.C. 402, 404 (1996) (“[T]he President’s roles as

Commander in Chief, head of the Executive Branch, and sole organ of the

Nation in its external relations require that he have ultimate and unimped-

ed authority over the collection, retention, and dissemination of intelli-

gence and other national security information in the Executive Branch.”

need for a full, frank exchange of ideas has led courts to recognize qualified privileges

for each of these governmental decisionmakers.”) (citation omitted); Matter of Certain

Complaints Under Investigation, 783 F.2d 1488, 1519 (11th Cir. 1986) (“The Supreme

Court’s reasons for finding a qualified privilege protecting confidential Presidential

communications in United States v. Nixon, 418 U.S. 683 (1974), support the existence of

a similar judicial privilege.”).

15

43 Op. O.L.C. __ (Feb. 4, 2019)

(internal citation omitted)); Authority of Agency Officials, 28 Op. O.L.C.

at 80–81. The Review Board’s obligation to order disclosure of any rec-

ords that fall outside the statutory postponement criteria, coupled with its

insulation from presidential supervision, make this bill far different from

legislation allowing Executive Branch officials sensitive to privilege

concerns to review former Presidents’ records. See Nixon v. Adm’r of

Gen. Servs., 433 U.S. 425, 443–44 (1977).

Second, the Act gives congressional committees “access to any rec-

ords” the Review Board has “held or created.” S. 3191, § 5(k)(1). Such

records will presumably include any records the Review Board obtains

from other agencies to conduct its investigations and records of its own

decision-making. Such records may contain a wide range of information

protected by executive privilege, yet the Act purports to give the Execu-

tive Branch no choice but to disclose them. What is more, this require-

ment effectively supplants the accommodation process, the long-standing

manner in which the Executive and Legislative Branches have traditional-

ly balanced their respective constitutional prerogatives through negotia-

tion. See Congressional Requests, 13 Op. O.L.C. at 157–59. President

Bush thus objected to the constitutionality of a similar provision in the

JFK Act. See 1992 Signing Statement at 2004–05.

III.

This legislation also establishes unconstitutional procedures for ap-

pointing members of the Review Board. The Appointments Clause,

U.S. Const. art. II, § 2, cl. 2, sets forth the respective roles of the Presi-

dent and Congress in appointing principal and inferior officers of the

United States. Principal officers must be appointed by the President

with the advice and consent of the Senate. Inferior officers may be

appointed in the same fashion or by the President alone, a court of law,

or the head of a department, as provided by law.

Review Board members are principal officers: they have ongoing au-

thority to make final, binding decisions about the disposition of poten-

tially sensitive government records, and they are supervised only by the

President. Even based on “the understanding that the public disclosure of

records may be postponed where necessary to protect executive privi-

lege,” as required by the 2019 Signing Statement, Review Board mem-

bers would remain intimately involved in discharging a core Article II

16

Mandatory Disclosure of Civil Rights Cold Case Records

function. And they would still, in some instances, have the final say as to

whether records will be disclosed. Yet the Act purports to constrain the

President’s broad discretion to select principal officers by imposing a

litany of restrictions on how the President may select his preferred nomi-

nees. Furthermore, in the event of vacancies on the Review Board, the

Act purports to require the President to make his selections swiftly

enough to satisfy a 60-day deadline for installing replacements. President

Bush objected to similar restrictions on the JFK Act’s Assassination

Records Review Board that “purport[ed] to set the qualifications for

Board members, to require the President to review lists supplied by

specified organizations, and to direct the timing of nominations,” in

contravention of the Appointments Clause. 1992 Signing Statement at

2005. Consistent with the President’s duty to implement statutes in a

constitutional manner and with previous signing statements, we conclud-

ed that the President should treat S. 3191’s putative restrictions on the

appointments of principal officers as advisory.

A.

Based on the Review Board’s responsibilities, its members are “Offic-

ers of the United States” under the Appointments Clause, because they

will “exercis[e] significant authority pursuant to the laws of the United

States” and “occupy a continuing position established by law.” Lucia v.

SEC, 138 S. Ct. 2044, 2051 (2018) (internal quotation marks omitted).

They exercise “significant authority pursuant to the laws of the United

States” in the form of “power lawfully conferred by the government to

bind third parties, or the government itself, for the public benefit.” Offic-

ers of the United States Within the Meaning of the Appointments Clause,

31 Op. O.L.C. 73, 87 (2007) (“Officers of the United States”). Indeed, in

many cases, the Review Board may make final determinations about

disclosure that bind the government, and that type of “last-word capacity”

is sufficient, though not necessary, to establish officer status. Lucia, 138

S. Ct. at 2054; see Officers of the United States, 31 Op. O.L.C. at 95. For

instance, the Review Board’s decisions to disclose non-Executive Branch

records appear to be final and binding on the government because the

President can review only decisions regarding Executive Branch records.

S. 3191, § 7(d)(1). The Review Board may also have final say for many

Executive Branch records because any decision to disclose such records

17

43 Op. O.L.C. __ (Feb. 4, 2019)

appears to go into immediate effect if the President fails to review it

within 30 days. See id. Furthermore, during the re-review process, the

Review Board’s prescriptions for triggering events or timetables for future

disclosure purport to bind governmental entities and the Archivist. Id.

§§ 3(f )(1), 7(c)(3)(B).

Even aside from this final decision-making authority, the Review

Board performs functions “within the ‘executive Power’ that Article II of

the Constitution confers, functions in which no mere private party would

be authorized to engage.” Officers of the United States, 31 Op. O.L.C. at

90. The Review Board will execute the mandatory disclosure regime in

lieu of the Executive’s ordinary mechanisms for controlling access to

confidential information. Not only that, it can “issue interpretive regula-

tions” to perform those functions, S. 3191, § 5(m)—and significant

authority includes the power to “interpret the law.” Officers of the United

States, 31 Op. O.L.C. at 87; Bowsher v. Synar, 478 U.S. 714, 733 (1986)

(“Interpreting a law enacted by Congress to implement the legislative

mandate is the very essence of ‘execution’ of the law.”). 9

Review Board members also satisfy the second criterion of officer

status: they occupy continuing positions established by law. See Lucia,

138 S. Ct. at 2051. They have continuous duties to decide whether to

9 While the Review Board can also issue subpoenas that “any appropriate Federal

court” may enforce “pursuant to a lawful request of the Review Board,” S. 3191,

§ 5(i)(1)(C), (F), (2), that does not constitute significant authority because we do not

believe that these provisions give the Review Board independent litigating authority to

enforce subpoenas. Rather, the Attorney General retains plenary authority to represent

the Review Board in litigation, including when deciding whether to represent the Review

Board in an action to enforce its subpoenas. See 2019 Signing Statement (“I have signed

the Act on the understanding that the Board must request judicial enforcement of a

subpoena through the Department of Justice, consistent with 28 U.S.C. 516 and the

President’s supervisory authority under Article II of the Constitution.”); see generally

United States v. Hercules, Inc., 961 F.2d 796, 798–99 (8th Cir. 1992); FTC v. Guignon,

390 F.2d 323, 324–25 (8th Cir. 1968); The Attorney General’s Role as Chief Litigator

for the United States, 6 Op. O.L.C. 47, 56–57 (1982). The power to issue subpoenas does

not constitute significant authority absent additional independent authority to enforce the

subpoena in court, which would transform investigative authority into an executive

authority to enforce the law. See Buckley v. Valeo, 424 U.S. 1, 137–38 (1976) (per

curiam); Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of

Legislative Affairs, from Sheldon Bradshaw, Deputy Assistant Attorney General, Office

of Legal Counsel, Re: Abolishment of Obsolete Agencies and Federal Sunset Act of

2001, H.R. 2373, at 2–3 (Apr. 15, 2002).

18

Mandatory Disclosure of Civil Rights Cold Case Records

publicly disclose governmental records. The fact that the Review Board

terminates in four to five years, S. 3191, § 5(n)(1), does not detract from

the continuing nature of their statutory responsibilities during that term.

See Constitutionality of the Ronald Reagan Centennial Commission Act

of 2009, 33 Op. O.L.C. __, at *2 (Apr. 21, 2009).

Finally, Review Board members have all the hallmarks of principal of-

ficers. They are removable solely by the President, and they can render

final decisions for the Executive Branch without the supervision, review,

or approval of anyone besides the President. See Edmond v. United States,

520 U.S. 651, 664–65 (1997); see also The Constitutional Separation of

Powers Between the President and Congress, 20 Op. O.L.C. 124, 150

(1996) (“Constitutional Separation of Powers”); Intercollegiate Broad.

Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1339–41 (D.C. Cir.

2012); Secretary of Education Review of Administrative Law Judge Deci-

sions, 15 Op. O.L.C. 8, 14 & n.11 (1991). They accordingly may not be

considered “inferior officers,” “whose work is directed and supervised at

some level by others who were appointed by Presidential nomination with

the advice and consent of the Senate.” Edmond, 520 U.S. at 663.

B.

This legislation purports to limit the President’s appointment of these

principal officers in two unconstitutional ways: by overly restricting

qualifications for the office and by prescribing a timetable for the Presi-

dent to fill any vacancies. The Appointments Clause leaves minimal room

for Congress to impose qualifications for holding a principal office.

“[U]nder the Appointments Clause, ‘[t]he President has the sole responsi-

bility for nominating [principal officers] and the Senate has the sole

responsibility of consenting to the President’s choice.’” Constitutionality

of Statute Governing Appointment of United States Trade Representative,

20 Op. O.L.C. 279, 280 (1996) (“USTR”) (quoting Pub. Citizen v. U.S.

Dep’t of Justice, 491 U.S. 440, 487 (1989) (Kennedy, J., concurring in the

judgment); see The Federalist No. 76, at 512 (Alexander Hamilton)

(Jacob E. Cooke ed., 1961) (“In the act of nomination [the President’s]

judgment alone would be exercised[.]”); The Federalist No. 66, at 449

(Alexander Hamilton) (“[The Senate] may defeat one choice of the execu-

tive, and oblige him to make another; but they cannot themselves

choose—they can only ratify or reject the choice, of the president.”).

19

43 Op. O.L.C. __ (Feb. 4, 2019)

To be sure, the First Congress imposed a modest qualification on the

office of Attorney General: the Judiciary Act of 1789 required that he be

“a meet person, learned in the law.” Act of Sept. 24, 1789, ch. 20, § 35,

1 Stat. 73, 92. More generally, Congress may have a role in “the prescrib-

ing of reasonable and relevant qualifications and rules of eligibility of

appointees.” Myers v. United States, 272 U.S. 52, 129 (1926). But “a

restriction ruling out a large portion of those persons best qualified by

experience and knowledge to fill a particular office invades the constitu-

tional power of the President and Senate to install the principal officers of

the United States.” USTR, 20 Op. O.L.C. at 280. Even if some limited

qualifications for principal officers are permissible, “where an office . . .

entails broad responsibility for advising the President and for making

policy, the President must have expansive authority to choose his aides.”

Id. at 281. For instance, Congress cannot constitutionally disqualify

anyone “who has directly represented, aided, or advised a foreign entity

. . . in any trade negotiation, or trade dispute, with the United States” from

the position of United States Trade Representative, who is a principal

officer. Id. at 279; see also id. at 280–81.

Under these precedents, the qualifications that S. 3191 prescribes for

Review Board members clearly cross the line. Review Board members

answer to no one but the President and may determine whether to release

privileged material—a core Article II prerogative. The President might

find it especially valuable to select members with some previous in-

volvement in any federal, state, or local investigation or inquiry relating

to any civil rights cold case, which could signal both relevant subject-

matter expertise and an understanding of executive privilege concerns.

Yet the Act renders that experience disqualifying. S. 3191, § 5(b)(3)(A).

The Act further requires the President to pick “distinguished individuals

of high national professional reputation in their respective fields,” id.

§ 5(b)(3)(B), and dictates that at least one must be a professional historian

and another must be a lawyer, id. § 5(b)(3)(C). Nominees must also be

“capable of exercising . . . independent and objective judgment” and

“possess an appreciation of the value of [cold case records] to the public,

scholars, and government.” Id. § 5(b)(3)(B). Taken in combination, and

especially given the important and sensitive nature of the Review Board

members’ duties, these criteria leave insufficient “scope for the judgment

and will of the person or body in whom the Constitution vests the power

20

Mandatory Disclosure of Civil Rights Cold Case Records

of appointment”—the President. Civil-Service Commission, 13 Op. Att’y

Gen. 516, 520–21 (1871).10

Adding to the Appointments Clause problem, the legislation provides

that in the event of a vacancy, the President “shall . . . within 60 days”

appoint a Senate-confirmed replacement to the Review Board. S. 3191,

§ 5(d). Unlike the provision governing the timing of initial appointments,

which gives the President the discretion to determine whether a 60-day

process is “practicable,” id. § 5(b)(2)(A), the vacancies provision purports

to be mandatory. But forcing the President to select a nominee within a

short timeframe interferes with the President’s appointment authority by

limiting the amount of time he can dedicate to searching for and selecting

suitable nominees. This 60-day deadline is particularly onerous because,

to comply with it, the President would not only need to make his selec-

tions and resolve security clearances, but would need somehow to leave

time for Senate confirmation—a process that, in recent years, has aver-

aged well over 60 days.

Presidents have repeatedly objected that similar restrictions on the

qualifications of principal officers and on the timing of their appointments

violate the Appointments Clause. 11 In these signing statements, Presidents

10 Helpfully, the enrolled version of S. 3191 did remedy some unconstitutional features

of previous iterations of this legislation. Previous versions had required appointment of

the Review Board members by the President alone or appointments by Congress, in clear

contravention of the Appointments Clause. And both the introduced House and Senate

versions of the bill originally purported to require the President to consider the recom-

mendations of various private organizations, such as the American Historical Association,

before selecting nominees for the Review Board—a restriction that unconstitutionally

interfered with the timing of the President’s selections.

11 See, e.g., Statement on Signing the Postal Accountability and Enhancement Act

(Dec. 20, 2006), 2 Pub. Papers of Pres. George W. Bush 2219, 2219 (2006) (“The execu-

tive branch shall construe subsections 202(a) and 502(a) of title 39 . . . , which purport to

limit the qualifications of the pool of persons from whom the President may select

appointees [to the Board of Governors of the U.S. Postal Service] in a manner that rules

out a large portion of those persons best qualified by experience and knowledge to fill the

position, in a manner consistent with the Appointments Clause of the Constitution. The

executive branch shall also construe as advisory the purported deadline in subsection

605(c) for the making of an appointment, as is consistent with the Appointments

Clause.”); Statement on Signing the Help America Vote Act of 2002 (Oct. 29, 2002),

2 Pub. Papers of Pres. George W. Bush 1927, 1928 (2002) (“Section 203(a)(4) purports to

require the President to make appointments to the [Election Assistance] Commission no

later than 120 days after enactment of the new law. . . . [T]his deadline unduly circum-

21

43 Op. O.L.C. __ (Feb. 4, 2019)

have indicated their intent to treat such restrictions as advisory. We rec-

ommended similar treatment in the President’s signing statement on

S. 3191.

IV.

Finally, the Act unconstitutionally restricts the President’s supervision

of the Executive Branch by prohibiting the President from removing

Review Board members absent cause. See S. 3191, § 5(f )(1)(B) (authoriz-

ing removal only for “inefficiency, neglect of duty, malfeasance in office,

physical disability, mental incapacity, or any other condition that substan-

tially impairs the performance of the member’s duties”). As the Supreme

Court has recognized, “Article II confers on the President ‘the general

administrative control over those executing the laws.’” Free Enter. Fund

v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492 (2010). Accord-

ingly, “restrictions on the President’s power to remove officers with broad

policy responsibilities in areas Congress does not or cannot shelter from

presidential policy control clearly should be deemed unconstitutional.”

Constitutional Separation of Powers, 20 Op. O.L.C. at 169. Congress may

not impose removal restrictions on officers if those restrictions would

unduly interfere with the President’s exercise of a core Article II function.

The President’s appointing authority and his constitutional obligations

to execute the laws and to supervise the Executive Branch carry with them

the authority to remove executive officers. “Because the power to remove

is the power to control, restrictions on removal power strike at the heart of

the President’s power to direct the executive branch and perform his

constitutional duties.” Common Legislative Encroachments on Executive

Branch Authority, 13 Op. O.L.C. 248, 252 (1989). The Supreme Court

held in Myers that the President’s “power of removal” is “an indispensa-

ble aid” to discharging his “responsib[ility] under the Constitution for the

effective enforcement of the law.” 272 U.S. at 132–33. And in Morrison

v. Olson, 487 U.S. 654 (1988), the Court stated that “Myers was undoubt-

edly correct in its holding, and in its broader suggestion that there are

some ‘purely executive’ officials who must be removable by the President

at will if he is to be able to accomplish his constitutional role.” Id. at 690.

scribes the presidential appointment power.”); 1992 Signing Statement at 2005 (objecting

to such restrictions for the Assassination Records Review Board created by the JFK Act).

22

Mandatory Disclosure of Civil Rights Cold Case Records

The Act’s removal restrictions, however, interfere with the President’s

core constitutional prerogative to decide whether and how to disclose

information subject to executive privilege. The Act inserts into that pro-

cess a Review Board that answers solely to the President and whose

members can be removed only for specified causes. “Congress may not

. . . provide Executive Branch employees with independent authority to

countermand or evade the President’s determinations as to when it is

lawful and appropriate to disclose classified information,” let alone all

other types of privileged information. Applicability of the Foreign Intelli-

gence Surveillance Act’s Notification Provision to Security Clearance

Adjudications by the Department of Justice Access Review Committee, 35

Op. O.L.C. __, at *8 (June 3, 2011). That is why the Supreme Court

emphasized the extent of presidential supervision over the General Ser-

vices Administration when sustaining the constitutionality of legislation

giving that agency responsibility for former President Richard M. Nixon’s

records, which included privileged materials. Nixon v. Adm’r, 433 U.S. at

443–44. Professional archivists’ review of such records “constitute[d] a

very limited intrusion by personnel in the Executive Branch sensitive to

executive concerns,” id. at 451, because they were supervised by the

Administrator of General Services, who was “himself an official of the

Executive Branch, appointed by the President,” id. at 441, and expressly

“subject to the direction and control of the President,” 40 U.S.C.

§ 751(b)(1976).12

By purporting to insulate Executive Branch decision-makers exercising

critical executive functions from plenary presidential supervision,

S. 3191’s removal restrictions also materially differ from the few instanc-

es where the Supreme Court has upheld restrictions on the President’s

authority to remove principal officers. As the Supreme Court reiterated in

12 To the extent the bill were read to authorize the Review Board to direct Executive

Branch agencies to re-investigate a cold case, that provision would also involve a core

executive function requiring presidential supervision. See S. 3191, § 5(i)(1)(B) (authoriz-

ing the Review Board to “direct a Government office to . . . if necessary investigate the

facts surrounding, additional information, records, or testimony from individuals, which

the Review Board has reason to believe is required to fulfill its functions and responsibili-

ties under this Act”). But the better reading of that provision—especially in light of this

constitutional concern—is that it merely authorizes the Review Board to direct agencies

to supply supplemental information so as to facilitate the Review Board’s determinations

of whether a record is a cold case record or falls within the postponement criteria.

23

43 Op. O.L.C. __ (Feb. 4, 2019)

Free Enterprise Fund, 561 U.S. at 493, the Court may have upheld for-

cause limitations on the removal of principal officers in “‘quasi-

legislative and quasi-judicial’” bodies. Id. (quoting Humphrey’s Ex’r v.

United States, 295 U.S. 602, 628, 629 (1935)); see also Wiener v. United

States, 357 U.S. 349, 355–56 (1958) (holding that Congress could insulate

members of the War Claims Commission from at-will removal because

their work had an “intrinsic judicial character”). Yet that rationale does

not apply to members of the Review Board, who would be principal

officers exercising purely “executive functions.” Humphrey’s Ex’r, 295

U.S. at 627; see also Constitutional Separation of Powers, 20 Op. O.L.C.

at 169–70. The Review Board members’ authority to review and disclose

confidential Executive Branch information directly relates to the Presi-

dent’s execution of the laws, and therefore must ultimately be exercised

only by officers subject to direct presidential control. Congress may not

use removal restrictions on principal officers as an indirect means of

compromising the President’s control over this core executive function.

Cf. Morrison, 487 U.S. at 695–96 (allowing “good cause” removal re-

striction on independent counsel even though she exercised executive

power, because she was an inferior officer with a narrow ambit); Free

Enter. Fund, 561 U.S. at 494–95 (emphasizing that Morrison concerned

the “status of inferior officers” and the specific “circumstances” of the

independent counsel statute).

Previous Presidents have accordingly objected to restrictions on remov-

ing officers, especially principal officers. Their signing statements ex-

pressed their intention to interpret and implement removal restrictions in a

manner consistent with the President’s constitutional authority to super-

vise the Executive Branch. 13 We advised that the President follow a simi-

lar course in addressing S. 3191.

13 See, e.g., Statement on Signing the Floyd D. Spence National Defense Authorization

Act for Fiscal Year 2001 (Oct. 30, 2000), 3 Pub. Papers of Pres. William J. Clinton 2379,

2380 (2000–01) (interpreting a for-cause restriction on removal of the Under Secretary for

Nuclear Security at the Department of Energy to include “a failure to comply with the

lawful directives or policies of the President” in light of the need for presidential supervi-

sion over sensitive national security functions); Statement on Signing the Social Security

Independence and Program Improvements Act of 1994 (Aug. 15, 1994), 2 Pub. Papers of

President William J. Clinton 1471, 1472 (1994) (noting “significant constitutional ques-

tion” regarding the removal restriction on “the single Commissioner [of the Social

Security Administration] only for neglect of duty or malfeasance”); cf. Statement on

24

Mandatory Disclosure of Civil Rights Cold Case Records

V.

For the reasons set forth above, we concluded that several provisions in

S. 3191 raise serious constitutional concerns. We thus advised that the

President should issue a signing statement explaining how he would

interpret and implement constitutionally problematic provisions. Con-

sistent with this advice, the President issued the January 8, 2019 signing

statement upon signing S. 3191 into law.

SARAH M. HARRIS

Deputy Assistant Attorney General

Office of Legal Counsel

Signing the Intelligence Authorization Act, Fiscal Year 1990 (Nov. 30, 1989), 2 Pub.

Papers of Pres. George Bush 1609, 1610 (1989) (objecting that a requirement that the

President “immediately communicate . . . the reasons” for removing an Inspector General

would “burden [the] exercise” of “the President’s constitutional authority to remove an

executive branch subordinate”).

25