White House Communications Agency Expenses Incurred on Political or Personal Travel by the President

Opinion

White House Communications Agency Expenses Incurred on Political or Personal Travel by the President

W h e n th e W h ite H o u s e C o m m u n ic a tio n s A g e n c y a c c o m p a n ie s th e P re s id e n t o n tra v e l, it m a y (a n d s h o u ld ) u se a p p ro p ria te d fu n d s to p a y fo r a n y e x p e n s e in c u rre d f o r a c tiv itie s in f u r th e r­ a n c e o f its o ffic ia l m issio n to p ro v id e a c o n tin u o u s c o m m u n ic a tio n s c a p a b ility to th e P re s id e n t a n d h is a d v is o r s , re g a rd le ss o f w h e th e r the travel is fo r o fficial, political, o r perso n al p u rp o se s.

T h e W h ite H o u s e C o m m u n ic a tio n s A g e n c y m a y u s e a p p ro p ria te d fu n d s to p a y fo r e x p e n s e s in c u r r e d in c o n n e c tio n with th e p ro v is io n o f c o m m u n ic a tio n s fa c ilitie s a n d s e rv ic e s f o r the o f f ic ia l u s e o f th e P resid e n t a n d h is s ta ff d u rin g P re s id e n tia l travel.

A p p r o p r ia te d fu n d s m a y be e x p e n d e d to fa c ilita te o fficial, b u t no t p o litic a l, c o m m u n ic a tio n b e tw e e n th e P r e s id e n t and the p re s s.

October 22, 1990

M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t

This memorandum responds to your request for our opinion on which expenses of the White House Communications Agency (“WHCA”), if any, may be paid from appropriated funds when the President travels for political or other non-official purposes. We conclude for the reasons set forth below that virtually all of the activities which you have informed us that WHCA undertakes in connection with travel by the President are in furtherance of WHCA’s official mission, and thus may be - indeed, should be — paid for out of appropriated monies, whether the President’s trip is official, political, or personal in nature.1

I.

WHCA is a component o f the White House Military Office, responsible for providing continuous communications services to the President, his se­ nior staff, and the Secret Service, both at the White House and during presidential travel, domestic or international. Your memorandum of March

1 W e a d d re sse d in tw o p rio r opinions the general q u e stio n o f the allocation o f expenses for political trip s tak en by th e P resid e n t. See Payment o f Expenses Associated with Travel by the President and Vice President, 6 O p. O .L C . 214 (1982) (“ O lso n M em o ran d u m ” ); M em orandum fo r R obert J. L ip sh u tz, C o u n se l to th e P resid e n t, from John M . H arm on, A cting A ssistant A ttorney G en eral, O ffice o f Legal C o u n se l (M ar. 15, 1977) (“ Harmon M em o ran d u m ").

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28, 1990, details the principal functions performed by WHCA in connection with a routine presidential trip.2 Approximately one week prior to a presi­ dential visit, WHCA travels to the site, establishes staff offices, and installs telephone lines, satellite terminals, and other equipment necessary for con­ tinuous communications capability. These facilities and equipment are then used during the President’s trip for communications between the President, his senior advisers, and the Secret Service, and the other departments and agencies of government and the general public. Staff telephones are gener­ ally provided “to permit staff and trip coordination.” Nelson Memorandum at 2. The White House staff has been advised repeatedly, however, that it may not use WHCA communications equipment “for direct political pur­ poses such as campaign fundraising and crowd-building.” Id.

WHCA, as one of its communications functions, also arranges for the President’s access to and communication with the press. One or two WHCA officers “provide services used in routine press advance work” for each site. Id. WHCA establishes an emergency press briefing center at each site for use if required.

For official presidential events, WHCA provides lighting and sound equip­ ment. At political events, these services are procured from private sources, with WHCA merely providing technical advice. At all events, “WHCA controls the ‘feed’ to the sound system and shuts down power to the micro­ phones at the appropriate conclusion of remarks.” Id. WHCA furnishes a teleprompter whenever required, regardless of the nature of the event.

Certain WHCA communications functions also serve a security purpose. For instance, WHCA provies a bullet-proof podium for presidential events. WHCA also “sets up emergency public address system speakers at each site, primarily for purposes of crowd control in case of an emergency.” M 3

II.

The legal principles governing payment of WHCA expenses are set forth in the Olson Memorandum. In that memorandum, we identified two “major principles” of appropriations law applicable in this and similar contexts. First, “appropriated funds may be spent only for the purposes for which they have been appropriated.” Olson Memorandum at 215. Second, “in general, official activities should be paid for only from funds appropriated for such

2 See M em orandum fo r M ike L u ttig , D eputy A ssistan t A ttorney G eneral, O ffice o f Legal C ounsel, from F red erick D. N elson, A ssociate C o u n sel to the P resident (M ar. 28, 1990) (“ N elson M em orandum ” ).

J W e un d erstan d th a t the W H C A fu n ctio n s d e ta iled in th is m em o ran d um m ay not be e x h a u stiv e a n d th a t you m ay need to retu rn to th is O ffice fo r a d v ice on th e p ro p e r tre a tm e n t o f ex p en se s in cu rred in c o n n e c tio n w ith fu n c tio n s not id en tified herein.

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purposes, unless Congress has authorized the support of such activities by other means.” Id. at 216.4 Over the years, this Office has considered against the backdrop of these twin principles a variety of issues arising out of presidential trips on which political business is conducted.5 We have consistently concluded with respect to these so-called “mixed” trips that while political activities must be paid for by political organizations,6 appropriated funds must be used to pay ex­ penses incurred in connection with the performance of official duties during presidential travel, regardless of the purpose of the travel. We have specifi­ cally noted that certain individuals are required in the performance of their official duties to accompany the President whenever he travels, and that expenses of such individuals should be paid from official sources:

[T]here are some persons whose official duties require them to be with the President, whether or not the President himself is on official business. . . . A similar group would exist for the Vice President. Expenses incurred during travel with the Presi­ dent or Vice President by this group of individuals should be considered official regardless of the character of the event that may be involved in a given trip.

Id. at 217-18 (footnotes omitted); see also id. at 218, 221.

The President’s military aide and doctor, for example, accompany the President on all of his travel, but we have said that their expenses should be paid from appropriated monies. See id. at 217-18. The official nature of the responsibilities performed by these persons does not change depending upon whether the trip is official, political, or personal. All of these persons are, when performing the duties described, engaged in the official business of the United States, and thus their expenses must be paid from public funds.

WHCA is an obvious example of a group that, like the military aide and the President’s doctor, performs official responsibilities for the President when he travels, regardless of whether the travel is official, personal, or political. We have never squarely addressed whether expenses incurred in the performance of these responsibilities may be paid from appropriated

4T h e first p rin c ip le d e riv e s from th e statutory re q u ire m e n ts o f 31 U .S .C . § 1301(a). T he second p rin ­ c ip le , u n d e r w h ich th e executive b ranch m ay not au g m en t its appropriations, is asserted by the C o m p tro l­ le r G e n e ra l to be a c o ro lla ry o f C o n g ress’ co n stitu tio n al p o w e r to co n tro l the T reasury. See U .S . G eneral A c co u n tin g O ffice, O ffice o f G eneral C o u n sel, P rinciples o f Federal Appropriations Law 5-62 to 5-63 (1 st ed. 1982) (e x p la in in g the non-augm entation p rin cip le).

5See, e.g.. M em o ran d u m for Fred F. F ield in g , C ounsel to the President, from T h eo d o re B. O lson, A ssis­ tan t A tto rn e y G en eral, O ffice of Legal C o u n sel (Apr. 21, 1982); M em orandum for the H on. M yer Feldm an, S p e c ia l C o u n se l to th e President, fro m N o rb ert A. S ch lei, A ssistant A ttorney G en eral, O ffice o f Legal C o u n se l (A u g . 2 0 , 1964).

6See, e.g., M em o ran d u m for the H o n . Lloyd N . C u tler, C ounsel to the P resident, from L eon U lm an, D e p u ty A ssista n t A tto rn e y General, O ffice o f L egal C o u n se l (Sept. 17, 1980).

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funds when the travel is for personal or political purposes, but we have always assumed that they should be. For example, we observed in 1977 that,

[n]o reimbursement to the Government should be required, even on non-official travel, for accompanying staff and sup­ port personnel required for the President and Vice President to perform their official duties. This would include the Secret Service, military aides and support personnel, communications personnel, and whatever other staff the President and Vice President require for advice and assistance in transacting the public business.

Harmon Memorandum at 9 (emphasis added).7 Now that we are directly confronted with the question, we conclude that WHCA may — and indeed should — use appropriated funds to pay for any expense incurred for activi­ ties in furtherance of its official mission when it accompanies the President on travel for either personal or political purposes.

Our conclusion that these expenses should be paid from appropriated funds is consistent with the treatment of such expenses under the Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-456 and the Presidential Election Campaign Fund Act (“PECFA”), 26 U.S.C. §§ 9001-9013.8 Generally, Secret Service, WHCA, or other official expenses are not campaign “expendi­ tures” under the FECA or “qualified campaign expenses” under the PECFA.9 Under the regulations promulgated pursuant to the FECA, if a candidate for federal office, other than a candidate for President or Vice President who receives federal funds under the PECFA, “uses government conveyance or accommodations for travel which is campaign-related,” then the candidate must report as an “expenditure” under the FECA “the rate for comparable

’ See also H arm on M em o ran d u m at 15-16:

T h e P resid en t and Vice P resid en t should be p ro v id ed all staff and o th e r a ssistan c e as req u ired fo r su p p o rt o f the official responsibilities o f th o se officers regardless o f location. T h is w o u ld o rd in a rily include . . . communications facilities fo r control and administration o f the armed fo rces and other agencies o f the Government[.]

(E m phasis added).

’ T he H arm on M em o ran d u m did not reference the Federal E lectio n C o m m ission (“ FE C ” ) re g u la tio n s in force at the tim e. See H arm on M em orandum at 20-21. The O lson M em orandum exp licitly d e clin ed to a ddress FE C rules ap p licab le d uring federal elections. O lson M em orandum a t 214.

’ T he treatm en t o f W H C A expenses under the FE C A o r the PECFA is not n ecessarily d isp o sitiv e o f w h eth er such e x p en ses m ay be paid from appropriations. W hile it likely w ill often be the case th a t o fficial e xp en ses p ro p erly payable from appropriations w ould not be cam paign "ex p en d itu re s” o r “ q u a li­ fied c am paig n e x p en se s” fo r the purposes o f these Acts, and conversely that expenses that are “e x p e n ­ d itu res” o r “ q u alified cam p aig n e x p en ses" w ithin th e m eaning o f those A cts w ould not be pay ab le fro m a p p ropriatio n s, th is n e ed not be true. See, e.g.. 11 C F.R. § 900 4 .6 (1981) (S ecret S e rv ic e tra n sp o rta ­ tion paid by an au th o riz e d com m ittee “ shall be qualified cam paign ex p en ses,” a lthough to the ex te n t that the g ov ern m en t reim b u rses such expenses, they are not “ ex p en d itu res" under the F E C A ), am ended by 4 8 Fed. R eg. 3 1 ,8 2 2 , 31,822 (1983) (deleting language referrin g to S ecret Service e x penses); see discussion infra p. 150.

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commercial conveyance or accommodation.” 11 C.F.R. § 106.3(e) (1981).10 The regulations make clear, however, that expenses associated with staff and equipment authorized by law or necessary for national security are not “ex­ penditures” reportable under this section:

In the case o f a candidate authorized by law or required by national security to be accompanied by staff and equipment, the allocable expenditures are the costs of facilities sufficient to accommodate the party, less authorized or required person­ nel and equipment.

Id. (emphasis added). Accordingly, the expenses associated with such au­ thorized or required personnel are not included in calculating the amount that must be reported as an “expenditure” under this regulation.

A sim ilar rule applies to travel of the President when, as a participating candidate under the PECFA, he campaigns for his own renomination or reelection or when he is campaigning on behalf of other federal candidates. The regulation governing presidential campaign travel during the general presidential election campaign11 states that

[i]f any individual, including a candidate, uses government conveyance or accommodations paid for by a government en­ tity f o r campaign related travel, the candidate’s authorized com m ittee shall pay the appropriate government entity an amount [calculated according to a specified formula],

11 C.F.R. § 9004.7(b)(5) (1981) (emphasis added).12 Any such repayable expenses are defined as “qualified campaign expenses” under the PECFA and must be reported as “expenditures” under the FECA. Id. § 9004.7(a). However, an individual’s travel is a campaign expenditure only if that in d ivid u a l’s travel is “campaign-related.” 13 Because personnel, like Secret Service agents and WHCA employees, accompany the President for official,

l0B y its te rm s, th is re g u la tio n only a p p lie s to the P resid en t w hen he is a candidate and is not p a rtic ip a t­ in g in th e p u b lic fin a n c in g system o f th e PE C FA . See 11 C .F R . § 106.3(a) (1981).

11A n id e n tic a l p ro v isio n governs p re sid en tial travel d u rin g the p rim aries. Id. § 9034.7(b)(5). 12T h e re im b u rse m e n t fo rm u la specifies th at the c an d id ate m ust pay an am ount equal to:

(i) T h e first c la ss com m ercial a ir fare plus the c o st o f o th e r services, in the case o f travel to a c ity s erv ed by a regularly sch e d u le d com m ercial service; or (ii) T h e c o m m e rc ial charter rate p lu s the c o st o f o th e r services, in the case o f travel to a c ity n o t serv ed by a regularly sch e d u le d com m ercial service.

11 C .F .R . § 9 0 3 4 .7 (b )(5 ) (1983).

13 T h e re g u la tio n re c o g n iz e s that w h e th e r o r not an in d iv id u a l’s tra v e l w ith the P resid e n t is “ cam -

p a ig n -re la te d " is n o t d e p en d e n t upon th e p u rp o ses fo r w h ic h the P resid e n t is tra v e lin g , b u t u p o n the p u rp o s e s o f th e p a rtic u la r in d iv id u al’s tra v e l. S u b sectio n (b )(4 ) states thAt, “ [f]o r trip s by g o v e rn m e n t c o n v e y a n c e o r b y c h a p te r,” the can d id ate m u st m ake a v a ila b le to the F E C “a list o f all p a sse n g ers on s u c h trip , along with a designation o f w hich passengers are and which are not campaign related.” 11 C .F .R . § 9 0 0 4 .7 (b )(4 ) (1 9 8 1 ) (em phasis a d d ed ). See also id § 9 0 3 4 .7 (b )(4 ) (1981) (id en tical p ro v isio n f o r p rim a ry c a m p a ig n tra v e l).

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governmental purposes, their travel is not “campaign-related,” and therefore is not a reimbursable “expenditure” or “qualified campaign expense” under the regulation.14 Similarly, under the regulation applicable to individuals, including the President, who campaign on behalf of candidates for federal office, expenses for Secret Service protection and other such personnel who travel with that individual in the performance of their official duties would not be campaign “expenditures” under the FECA. The regulation states:

[w]here an individual, other than a candidate, conducts campaign -related activities on a trip, the portion of the trip attributed to each candidate shall be allocated on a reasonable basis.

11 C.F.R. § 106.3(c)(1) (1981) (emphasis added). This regulation requires an individual campaigning on behalf of another “to allocate their mixed campaign/non-campaign travel expenses on a reasonable basis.” 1 Federal Election Campaign Financing Guide (CCH) f 807, at 1537-8 (1989) (repro­ ducing FEC “Explanation and Justification of Part 106”); Federal Election Commission, Campaign Guide fo r Congressional Candidates and Commit­ tees 21 (1988) (same comment). Under this regulation, the expenses of Secret Service or other such personnel clearly would not be considered to be an allocable portion of the President’s total expenditures in making the cam­ paign trip. Since expenses for Secret Service and other such personnel are not campaign “expenditures” under the FECA when a federal candidate cam­ paigns for him self or herself, considering such costs to be noncampaign expenses when such an individual campaigns for someone else certainly allocates the campaign and noncampaign costs “on a reasonable basis.” Fur­ thermore. applying the regulation directly to each individual member of the President’s support staff would also lead to the conclusion that no portion of

14 A n e a rlie r v e rsio n o f th is reg u latio n included an ex p lic it ex em p tio n fo r p e rso n n el a u th o riz e d by law o r re q u ire d by n a tio n a l secu rity to acco m p an y the can d id ate. See 11 C .F .R . § 9 0 0 4 .7 (b )(3 )(iii) (1981) ("In the case o f can d id ate s a u th o rized by law o r required b y n ational sec u rity to b e a c c o m p a ­ n ied by staff, such sta ff sh all not be c o n sid e re d to be trav ellin g fo r c am paign p u rp o se s u n le ss such s ta ff en g ag e s in cam p aig n a c tiv ity d u rin g a trip ."). T h e re is no in d icatio n that, by d e le tin g th is s e n te n c e in the la te r re g u la tio n , th e FE C in ten d ed fo r such e x p en ses to be c o n sid e re d c am p aig n “ e x p e n d itu re s ” u n d e r the FE C A . T h e c h an g e , w hich w as m ade sh o rtly after th e FE C issued co m p a ra b le re g u la tio n s g o v e rn in g p re sid en tial p rim ary c am p aig n s, w as m ade p rim arily to co n fo rm sec tio n 9 0 0 4 .7 to the new prim ary re g u la tio n s. 4 8 F ed . R eg. 3 1 ,8 2 2 , 31,822 (1 9 8 3 ). As e x p la in ed fu rth e r below , see infra p. ISO, the prim ary c a m p aig n reg u latio n s d e le ted refe re n c es to S ecret Service and o th e r s u c h p erso n n el b e ca u se the p ay m en t o f th e ir e x p en ses w as g en erally ad d ressed u n d e r the fe d e ra l travel re g u la tio n s. T h a t the F E C did not in te n d d eletio n o f th e referen ce to su ch p e rso n n el in sec tio n 9 0 04.7 o r its prim ary e le c tio n c o u n te rp a rt, s e c tio n 90 3 4.7, to affect the tre a tm e n t o f S e c re t S erv ice an d o th e r s u c h e x p en se s is e v id e n ce d by the fact th a t the F E C , in its e x p la n ato ry c o m m en ts, did no t iden tify th e ch an g e as s ig n ific a n t; the FE C id e n tifie d only “one sig n ifican t c h an g e ,” n am ely that c an d id ate s u s in g g o v e rn ­ m e n t co n v ey an ce w ere re q u ire d to pay a h ig h er rate than un d er the p revious re g u la tio n . 4 8 Fed. R eg. 5 2 2 4 , 5229 (1 9 8 3 ) (e m p h a sis ad d ed ) (d iscu ssin g sectio n 9 0 3 4 .7 ); see also 4 8 Fed. R eg . a t 3 1 ,8 2 4 (id e n tic a l co m m en t on sec tio n 90 0 4 .7 ).

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the cost of the travel of Secret Service or other such personnel need be allocated to any candidate as an expenditure. Even though they may accom­ pany the President on a campaign trip he makes on behalf o f various federal candidates, Secret Service and similar personnel do not “conduct[] cam­ p a ig n -re la te d a c tiv itie s” w hen they m erely perform th eir o fficial responsibilities.15 Secret Service and other such personnel expenses thus have consistently been considered not to be “expenditures” under the FECA, and generally have been considered not to be “qualified campaign expenses” under the PECFA. We are aware of only one regulation under which expenses for Secret Service agents and other such personnel would have been considered to be “qualified campaign expenses” under the PECFA. Under a previous version o f 11 C.F.R. § 9004.6 (1981), expenses incurred by an authorized com m ittee of a participating presidential candidate for transportation and ground services provided to “ Secret Service or other staff authorized by law or required by national security” were considered to be “qualified campaign expenses.” See 11 C.F.R. § 9004.6(a) (1981). This regulation, however, simply allowed Secret Service travel and similar expenses, when incurred by the authorized committee, to be paid from federal funds received under the PECFA; it did not require committees to treat these expenses as campaign “expenditures” under the FECA. The regulation, which permitted an autho­ rized com m ittee to receive reimbursement for such expenses up to an established limit, id. required the committee to report such reimbursements only as “[o]ffsets to operating expenditures” under 11 C.F.R. § 104.3(a)(3)(ix) (1981). See id. § 9004.6(c). The FEC comments explaining this provision made clear that these offsets were not “expenditures” for purposes of the presidential spending limit in the FECA, 2 U.S.C. § 441a(b). See 45 Fed. Reg. 43,371, 43,376 (1980) (“Pursuant to Part 104, the reimbursements will be subtracted from the com m ittee’s total expenditures to produce the com m ittee’s net expenditures. It is the net expenditures which will count against the candidate’s expenditure limit.”).

The classification of such costs as “qualified campaign expenses” was of little practical significance. The regulation by its terms did not apply where the governm ent provided the transportation for these individuals and where, under section 9004.7(b)(5), the committee incurred no costs for such trans­ portation. It applied only when “an authorized committee incur[red] expenses for transportation made available [to such persons],” 11 C.F.R. § 9004.6(a) (1981) (emphasis added). However, when a committee had paid the travel expenses of Secret Service agents or other such personnel and the regulation therefore applied, the committee’s expenses were generally reimbursable un­ der regulations providing for government reimbursement of employees who travel on official business. See 41 C.F.R. ch. 301 (1990). Accordingly, in

15 O f c o u rs e , w ere su ch personnel to p erform any cam p aig n function distinct from th eir official fu n c ­ tio n s, th e y w o u ld be req u ired to a llo c a te th eir m ix ed c am p aign/non-cam paign travel e x p en se s on a re a so n a b le b asis.

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most situations, the regulation was either inapplicable or irrelevant. It was apparently for this reason that the FEC deleted as superfluous the reference to such personnel when it revised this regulation.16 Because of this deletion, such expenses would not in any event be considered “qualified campaign expenses” under the current regulations. Furthermore, and more significant, nothing in the current or previous FEC regulations governing presidential campaign expenses would require that expenses for Secret Service and other such personnel be classified as “expenditures” under the FECA.

In sum, we adhere to the conclusion of the Olson and Harmon Memo­ randa that expenses incurred for official purposes during travel with the President should be paid from appropriated funds, even if the purpose for the President’s trip is not official. Accordingly, expenses incurred by WHCA for services in furtherance of its official mission that are performed in con­ nection with presidential travel should be paid from appropriated funds.

III.

We now turn to the question of whether the particular WHCA functions described in your memorandum further the agency’s official mission. The resolution of this question ultimately turns on whether the funds used to pay WHCA’s expenses are being used for the purposes for which they were provided by Congress.

Congress has not detailed the purposes for which funds appropriated for WHCA may be used.17 WHCA officials therefore have a substantial mea­ sure of discretion in defining the precise scope of the agency’s official mission, and whether a given expenditure is an authorized use of the funds appropri­ ated by Congress is in the first instance a question for those officials. An expenditure, however, of course must be reasonably related to the official mission of the agency.

The primary responsibilities of WHCA during presidential travel are to install, maintain, and operate the communications facilities and equipment that permit the President and his entourage to have continuous communica­ tions capabilities, and the lion’s share of expenses incurred by WHCA during

16T h e referen ce w as d eleted from section 900 4 .6 in o rd e r to co n fo rm to the co rresp o n d in g prim ary cam paign reg u latio n , 11 C.F.R . § 9034 6. See 48 Fed R eg. 31,822 (1983). T h e FEC ex p la in ed th a t it d e le ted the referen ce to travel expenses o f Secret S erv ice and o th e r such personnel from the prim ary c am p aig n reg u latio n because "o th e r g o v ernm ent reg u latio n s g o v ern p aym ent for those e x p e n d itu re s.” 48 F ed R eg. at 5 2 2 9 (discussing section 9034.6); 48 Fed. Reg. at 3 1,824 (identical co m m en t on sectio n 9004.6).

17You have in fo rm ed us that W H CA ’s expenses are paid from accounts o f the D efense C o m m u n icatio n s A gency (“ D C A ” ), o n e o f the “ D efense A gencies" included in the an n u al D epartm ent o f D e fe n se a p p ro ­ pria tio n s le g islatio n . See generally N ational D efense A u th o rizatio n A ct fo r F iscal Years 1990 and 1991, P ub. L. N o. 101-189, §§ 104, 201, 301, 2 4 0 1 -2422, 103 Stat. 1352, 1370, 1393, 1407, 1639-44 (19 8 9 ) (th e “ A uth o rizatio n A ct” ); D epartm ent o f D efense A p p ro p riatio n s A ct, 1990, Pub. L. N o. 101-165, 103 S tat. 1112, 1116, 1124, 1126 (1989) (the “ A pp ro p riatio n s A ct”). T he A uthorization A ct and the A p p ro ­ p ria tio n s A ct d o not provide specific d irectio n s co n cern in g the use o f appropriated funds fo r W H C A e x p en ses, and w e are aw are o f no relevant lim itation on the use o f D efense A gencies ap p ro p riatio n s.

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and in connection with presidential travel are associated with the discharge o f these responsibilities. As Commander in Chief, as well as in his other official roles, the President requires dependable means by which to commu­ nicate instantly with individuals anywhere in the world at any moment. In an age when conflict may develop and escalate to crisis proportions in min­ utes, the President cannot be expected to rely on unpredictable and variable private communications facilities. Indeed, it was precisely to eliminate the need for reliance upon such non-governmental facilities that WHCA was created.

The provision o f these communications facilities and services for the official use of the President and his staff is WHCA’s official mission. There­ fore, provided that these facilities and services are used for official government purposes, WHCA may expend appropriated funds to pay for the expenses incurred in connection with the provision of such facilities and services, regardless where and for what reason the President travels.18 W HCA also provides facilities and services for communication with the media. We believe that funds appropriated for WHCA’s use may also per­ missibly be expended to facilitate official, as distinguished from political, communication between the President and the press. The press is indispens­ able to the effective and proper functioning of the presidency — indeed to government as a whole. As Commander in Chief and in his other official roles, the President must communicate with the public. Such communica­ tion may on occasion even be necessary for reasons of national defense. Direct communication with the public is, as a practical matter, only possible with the assistance o f private news media. Facilitation of such contact thus furthers important governmental interests, regardless of the purpose for which the President may be traveling.19

" T h e re s p o n sib ilitie s an d duties p erfo rm ed by the P resident and those serving the P resident c an n o t a lw ay s be sa tisfa c to rily characterized as w holly “o fficial,” “ p o litic a l,” or “p e rso n al.” W e noted, fo r e x a m p le , in th e O lso n M em orandum :

[I]t is sim p ly n o t p o ssib le to d iv id e m any o f the actio n s o f the P resident and Vice P resident in to u tte rly o fficial o r purely p o litic a l categ o ries. To a ttem pt to do so in m ost cases w ould ig n o re th e n a tu re o f o u r political system an d the stru ctu re o f o u r governm ent. A ccordingly, effo rts to e sta b lish such divisions m ust be ap p ro ach ed w ith com m on sense and a good faith e ffo rt to ap p ly th e sp irit o f the p rin c ip le s w e d iscu ss in this m em orandum , and they m ust be ju d g e d w ith c o n sid e ra b le d eferen ce to th e d ecisio n s o f the persons d irectly involved in m ak­ in g th e d eterm in atio n s.

O lso n M em o ran d u m at 215.

T h u s, th e re w ill a lw ay s be particular instances w hen it w ill no t be evident (and certain ly not in ad ­ v a n c e ) w h e th e r use o f a W H CA fa c ility will b e in fu rth eran ce o f the P resid e n t's official, as d is tin ­ g u is h e d fro m his p o litic a l, responsibilities. F o r ex am p le, a p residential aide w ho retu rn s a re p o rte r’s te le p h o n e c all w ill n o t k n o w until the c o n v ersa tio n is o v e r w h ether the reporter is in terested in p o litical o r o ffic ia l m a tte rs, o r b o th . We believ e that ev en w hen it e v entuates that the re p o rte r’s inquiry relates m o re to th e P re s id e n t’s po litical than to h is o fficial resp o n sib ilities, W H C A m ay pay for su ch de m ini­ m is u se o f its fa c ilitie s, an d that sp ec ia l logs n eed not be m aintained nor o th e r m o nitoring m ethods e m p lo y e d . W e h av e rep eated ly em p h asized th a t co m m on sense m ust be the to u chstone in m any o f the p a rtic u la r a p p lic a tio n s o f th e broadly d ra w n ru les in th is area.

19 T h e re w ill n o d o u b t b e occasions w h e n there are ad d itio nal c o sts fo r press o r o th e r third -p arty c o m ­ m u n ic a tio n s b e y o n d th o se ordinarily asso ciated w ith th e P resid e n t’s travel. If the costs are incurred fo r ite m s o r s erv ice s th at are attrib u tab le to the special needs a n d /o r requests o f such th ird p arties, W H C A sh o u ld seek reim bursem ent fro m the third parties.

153

The same governmental interests are served by the incidental security func­ tions performed by WHCA, such as provision of a bullet-proof podium or an emergency sound system. Danger to the President’s life does not vary de­ pending on the purpose of a public appearance.20 Appropriated monies therefore may be used to pay the expenses associated with these services as well.

CONCLUSION

We conclude that virtually all of the functions that you have informed us are performed by WHCA in connection with presidential travel are in fur­ therance of WHCA’s official mission to provide a continuous communications capability to the President and his advisers. As a consequence, the expenses incurred for these activities may be paid with appropriated funds, regardless of whether the travel is for official, political, or personal purposes.

J. MICHAEL LUTTIG

Assistant Attorney General Office o f Legal Counsel

“ T he official p u rp o se beh in d tw o o th er W H C A activities — c o n tro lling the “ feed” to the sound sy stem (in clu d in g tu rn in g o ff the m icrophones at the end o f a speech) and furnishing a telep ro m p ter w henever req u ired — is not as e asily discernible. We sim ply h ave not b een provided sufficient in fo rm atio n c o n ­ cerning the p u rp o ses fo r having W H C A perform these functions to enable us to conclude w hether they m ay be paid for w ith a p p ro p riated funds.