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Personnel - White House Appointment of Military Personnel to Staff
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This file contains material relates to Alexander Haig and Brent Scowcroft.
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Philip W. Buchen Files
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The original documents are located in Box 41, folder "Personnel - White House
Appointment of Military Personnel to Staff" of the Philip Buchen Files at the Gerald R.
Ford Presidential Library.
Copyright Notice
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photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
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Works prepared by U.S. Government employees as part of their official duties are in the public
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Digitized from Box 41 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
May 29, 1973
Monorable John E. Moss
House of Representatives
Washington, D. C. 20515
Dear Mr. Moss:
This refers to your telephone call to me on May 24, 1973 regarding
precedents for the assignment of General Alexander M. Haig to the
Office of the President.
General Haig is but the latest of senior military officers who have, over
the years, been detailed by the President to perform a wide range of
duties in the Office of the President. For examples, Admiral Leahy
served from 1942 to 1949 as Chief of Staff to the Commander-in-Chief,
then President Roosevelt. Major General Wilton B. Persons, USA,
Retired, served President Eisenhower as Chief of the White House Staff.
Brigadier General Andrew Goodpaster served President Eisenhower as
Staff Secretary. General Maxwell Taylor served President Kennedy as
Military Adviser to the President. In addition there have been in the
past, and are at the present time, military personnel serving specifically
as Military Aides to the President.
I hope the foregoing observations will be helpful to you in considering the
status of General Haig.
Sincerely yours,
(Signad) &
FORD i LIBRARY GERALD
L. Niederlehner
Acting General Counsel
cc: LA
PA
OSD Files
Coordination:
Reading
ASD (LA) 15F
ASD (PA)
JF
COMPLETE
COMPTROLLER GENERAL OF THE UNITED STATES
3111
SIATED
WASHINGTON, D.C. 20548
UNITED
B-150136
February 7, 1974
The Honorable
The Secretary of Defense
Dear Mr. Secretary:
In view of 10 U.S.C. 973(b) questions have arisen as to the
propriety of General Alexander M. Haig, Jr., USA, 195-12-3625,
serving as Assistant to the President while he was an officer
(0-10) on the active list of the Regular Army and Vice Chief of
Staff of the Army, during the period from about May 4, 1973, until
his retirement from the Army on August 1, 1973. Since the payment
of active duty pay and allowances and retired pay to General Haig
is involved, the matter is of concern to this Office.
The announcement of General Haig's appointment as Assistant to
the President made on May 4, 1973, by White House Press Secretary
Ronald L. Ziegler states as follows:
"President Nixon has asked me to announce today the
interim appointment of General Alexander M. Haig, Jr.,
currently the Vice Chief of Staff of the Army, to be an
Assistant to the President.
"In this role, General Haig will assume many of
the responsibilities formerly held by H. R. Haldeman.
These responsibilities include coordination of the
work of the White House Staff and administration of
the immediate Office of the President. General Haig
will assume these responsibilities immediately.
"During the past years, the President has worked
closely with General Haig, who served in the key
position of Deputy Assistant to the President for
National Security Affairs and as Deputy to
Dr. Kissinger. General Haig consulted closely with
the President on national security matters and under-
took a number of missions on the President's behalf in
relation to the agreement to end the war in Vietnam.
FORD : LIBRARY QERVLI
hi- mg.
2763
B-150136
"President Nixon values General Haig's experience
and integrity, and has confidence in his proven
abilities as an excellent administrator."
See Weekly Compilation of Presidential Documents, Monday, May 7,
1973, Volume 9, Number 18, page 450.
Also, on May 10, 1973, in announcing other appointments and
changes in the Administration, Press Secretary Ziegler stated in part
as follows:
"Also, this morning the President again referred to
the fact that he had appointed Alexander Haig to fill
the interim role which Bob Haldeman previously filled as
Assistant to the President and that Alexander Haig would
be continuing in this position for the immediate future."
See Weekly Compilation of Presidential Documents, Monday, May 14, 1973,
Volume 9, Number 19, pages 661, 662.
As a result of a congressional inquiry concerning this matter, in
May 1973 we informally contacted members of the White House staff to
obtain further information concerning the duties of General Haig's
position at the White House and the legal authority for his appoint-
ment. We were told that legal advice from the Department of Defense
had been relied upon in assigning General Haig and we were referred to
an official in the Department of Defense General Counsel's office.
The Department of Defense official advised us that General Haig
was assigned on an "interim" basis to the President's staff, but
continued to receive only his pay and allowances as a general and
Vice Chief of Staff of the Army. The official said that General Haig's
duties were such as may be assigned by the President as Commander-in-
Chief, but were not the defined duties of any particular office. He
also said that General Haig had not been appointed as one of the
assistants to the President authorized by 3 U.S.C. 106, and that
General Haig's duties more nearly resembled the duties of Chief of
Staff to the President, a position authorized under 10 U.S.C. 3531 to
be filled by a general officer of the Army appointed by the President,
by and with the advice and consent of the Senate.
However, since General Haig was assigned as Assistant to the
President only on an interim basis, the Department of Defense official
i
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of
B-150136
said that General Haig was not considered to have been assigned to
the position of Chief of Staff to the President, and it was not known
how long his assignment might continue. That official did agree,
however, that if General Haig should continue indefinitely in his
White House position there could arise the question of whether his
name should be submitted to the Senate for confirmation as provided
by 10 U.S.C. 3531.
The Department of Defense official also expressed the opinion
that as Commander-in-Chief, the President had ample authority to assign
General Haig to his White House position and such duties as he sees
fit, on an interim basis, and that it was not an assignment to an
office within the contemplation of 10 U.S.C. 973(b).
We note, however, that Mr. Ziegler's press announcements state
that General Haig in his position as Assistant to the President would
"assume many of the responsibilities formerly held by H. R. Haldeman"
and that the President had "appointed Alexander Haig to fill the
interim role which Bob Haldeman previously filled as Assistant to
the President."
Subsequently, an announcement dated June 6, 1973, was released
by the Office of the White House Press Secretary which stated in
pertinent part as follows:
"The President today made three announcements relating
to the senior staff of the White House:
"General Alexander M. Haig, Jr. will retire from active
duty in the Army effective August 1, 1973, and will be
appointed Assistant to the President. In this capacity
General Haig will continue to exercise the same general
responsibilities he has held since rejoining the White
House staff on an interim basis in May. These include
coordination and supervision of the day-to-day operations
and responsibilities of the White House staff." (Emphasis
added.)
In view of the June 6 announcement along with the previous White
House announcements of May 7 and 10, 1973, it appears that General Haig
as Assistant to the President was performing essentially the duties
- 3 -
FORD : LIBRARY 0ERALD
B-150136
which Mr. Haldeman exercised while occupying the position of Assistant
to the President. Mr. Haldeman's position was one of six such posi-
tions authorized by 3 U.S.C. 106 which provides as follows:
"The President is authorized to appoint not to
exceed six administrative assistants and to fix their
compensation in accordance with section 105 of this
title. Each admínistrative assistant shall perform
such duties as the President may prescribe."
Section 105 of title 3, United States Code, authorizes the President
to fix the compensation of, among others, the six administrative assis-
tants authorized by section 106 at rates of basic compensation not to
exceed that of Jevel II of the Federal Executive Salary Schedule. We
understand Mr. Haldeman was compensated at the level II rate of pay.
Section 973(b) of title 10, United States Code, provides as
follows:
"(b) Except as otherwise provided by law, no
officer on the active list of the Regular Army,
Regular Navy, Regular Air Force, Regular Marine Corps,
or Regular Coast Guard may hold a civil office by
election or appointment, whether under the United
States, a Territory or possession, or a State. The
acceptance of such a civil office or the exercise of
its functions by such an officer terminates his
military appointment."
To determine whether General Haig as an officer on the active list
of the Regular Army was in violation of section 973(b) while serving
as Assistant to the President prior to his retirement from the Army, it
is necessary to determine whether that position is a "civil office"
within the meaning of that section, and, if so, whether there is
authority "otherwise provided by law" as prescribed in section 973(b)
for him to occupy that position.
The term "civil office" as used in 10 U.S.C. 973(b) and
predecessor statutes has not been statutorily defined. In 13 Op. Atty.
Gen. 310 (1870), an opinion issued shortly after the original statute
was enacted from which 10 U.S.C. 973(b) was derived, the Attorney
General of the United States held that General George C. Meade, a
- 4 -
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GERALD
LIBRARY
B-150136
Regular Army Officer, could not exercise the functions of a park
commissioner of the City of Philadelphia without vacating his military
commission. The Attorney General indicated that the office of park
commissioner had been established by an act of the state legislature,
which act designated the mode of appointment, the term of office, and
the functions to be performed which functions were of a civil nature
and would fall within any authorized definition of an office. The
opinion also noted that the act provided that "they shall receive no
compensation for their services.' In addition the Attorney General
pointed out that the manifest purpose of Congress in enacting the
prohibition against Regular Army officers serving in civil offices
was to disencumber them "of every species of official duty not belonging
to their military profession." See also in this regard 35 Op. Atty.
Gen. 187, 190 (1927) wherein the Attorney General stated that the purpose
of the statute was to prevent an officer of the Army from accepting any
office the duties of which will substantially interfere with the
performance of his duties as an officer of the Army.
In 1873 the Attorney General held that General William T. Sherman
could not act as Secretary of War, even temporarily, without vacating
his commission as General of the Army. See 14 Op. Atty. Gen. 200
(1873).
The Attorney General in 18 Op. Atty. Gen. 11 (1884) has also held
that notwithstanding the gravity of the penalty inflicted by the
statute (10 U.S.C. 973(b)), the policy of the statute points to a
very liberal interpretation of the phrase "civil office" so as to
include a position on a "board of experts" established by a Philadelphia
city ordinance to, in effect, advise the city councils on the paving of
the city's streets.
In our decision at 29 Comp. Gen. 363 (1950) we concluded that
the term "civil office," as distinguished from "military office," is
synonymous with "public office" and is usually defined in much the
same terms. We quoted judicial. authority to the effect that the chief
elements of a public office are: the specific position must be created
by law; there must be certain duties imposed by law on the incumbent,
and they must involve the exercise of some portion of the sovereign
power.
In our decision at 44 Comp. Gen. 830 (1965) we held that a Regular
Army officer, participating in an excess leave program attending law
school, who accepted a temporary appointment as a special policeman
- 5 -
FORD is LIBRARY 038870
B-150136
in the Library of Congress terminated his commission. We further
held that since the positions of special police appointed by the
Librarian of Congress were created by a statute which defines their
duties and that such police exercise some of the powers of the
sovereign, the acceptance of such a position was the acceptance of
a civil office.
In that decision we also stated that the fact that the
appointment to perform the statutory duties of an office may be
temporary provides no basis for determining that a position is not
a "civil office." We also held that the fact that the officer may
be on excess leave provides no basis for viewing his acceptance of the
position of special policeman as not terminating his appointment as an
officer in the Regular Army since, quoting from 25 Comp. Gen. 377, 381
(1945), "The statute makes the two positions incompatible as a matter
of law, without qualification and without regard to any showing of
compatibility in fact by reason of leave of absence, or otherwise,
with respect to a particular officer and a particular position." See
also 25 Comp. Cen. 38, 41 (1945). We find nothing in 44 Comp. Gen.
830 which would support the view that General Haig's initial assign-
ment and duties did not meet the criteria for a civil office as
discussed in that decision.
The position of Assistant to the President previously held by
Mr. Haldeman and now held by General Haig is one specifically created
by law (3 U.S.C. 106) which law provides that the duties of the posi-
tion shall be as prescribed by the President. It also has a statutorily
described salary (3 U.S.C. 105). It is our view that such position
meets the criteria for a civil office within the meaning of. 10 U.S.C.
973(b) as construed in the above-cited opinions of the Attorney General
and the Comptroller General.
We have previously taken no action in this matter since the
matter was the subject of litigation in Alan B. Morrison V. Howard H.
Callaway, Secretary of the Army and Alexander M. Haig, Jr., Assistant
to the President, Civil Action No. 1108-73, which was filed June 6,
1973, in the United States District Court for the District of Columbia.
That suit was dismissed by the court on January 8, 1974, on the ground
that the plaintiff lacked standing. The court did not reach the issue
of whether General Haig held a civil office within the purview of
10 U.S.C. 973(b), so as to terminate his military commission.
- 6 -
FORD is LIBRARY 9ERALD
B-150136
In view of the precedents set out above and the reported factual
situation concerning General Haig's functions and duties at the White
House, we have tentatively concluded that when he began to exercise
those functions and duties on or about May 4, 1973, he occupied a
civil office and that his military appointment terminated by opera-
tion of law under 10 U.S.C. 973(b). In addition with the termination
of his military appointment he would not appear to have been a
"commissioned officer of the Army" under 10 U.S.C. 3911, the law under
which we understand he retired on July 31, 1973. This of course brings
into question the legality of the payment to General Haig of active
duty pay and allowances during the period May 4 to July 31, 1973, and
retired pay from and after August 1, 1973. We are now giving considera-
tion to taking exceptions to such payments. However, before doing so
we would like an expression of your views in this matter.
An early reply will be appreciated.
Ferres Sincerely yours, R. Atach
Comptroller General
of the United States
- 7 -
FORD is LIBRARY 03RALD
DEPARTMENT OF THE ARMY
OFFICE OF THE GENERAL COUNSEL
WASHINGTON, D.C. 20310
22 April 1974
Honorable Elmer Staats
Comptroller General of the United States
Washington, D. C. 20548
Re: General Alexander M. Haig, Jr.,
United States Army (retired); Your
Letter of February 7, 1974, No.
B-150136
Dear Mr. Comptroller General:
I have been asked to respond on behalf of the Department of
Defense to your letter of February 7, 1974, to the Secretary of
Defense. That letter concerns the applicability of 10 U. S.C.
§ 973(b) (1970), to the service from May ÷ through August 1, 1973,
of General Alexander M. Haig, Jr., United States Army (retired),
on the White House staff. Your letter tentatively concludes
that when he [ General Haig] began to exercise those
functions and duties on or about May 4, 1973, he
occupied a civil office and that his military appointment
terminated by operation of law under 10 U.S.C. 973(b).
In addition with the termination of his military appoint-
ment he would not appear to have been a "commissioned
officer of the Army" under 10 U.S.C. 3911, the law
under which we understand he retired on July 31, 1973.
Before discussing the views of the Department, permit me
to set out the correct, verifiable facts of the case. You will
note a substantial difference between that which follows and
the statement of facts set out in your letter of February 7, 1974,
which relied heavily on White House press releases concerning
Haig's return to the White House. Those releases, insofar as
Haig's employment status is concerned, were inaccurate in part
and inartfully misleading in the whole.
FORD
Statement of Facts
After serving for almost four years in the Office of the Presi-
dent, first as Military Assistant to the President for National
Security Affairs and subsequently as Deputy Assistant to the Presi-
dent for National Security Affairs, General Alexander M. Haig, Jr.,
returned on January 4, 1973, to the Army staff, having been assigned
on that date as Vice Chief of Staff of the Army.
On April 30, 1973, the White House announced the resignation
of two of the President's senior assistants: Messrs. H. R. Haldeman
and John Ehrlichman. Because of his confidence in General Haig and
because of his uncertainty as to the future roles of his personal staff,
on May 3, 1973, the President directed Haig to assist him temporarily
with the functioning of the White House staff in order to help fill the
void left by the resignations. Haig complied with this or der and
assumed his new duties the following day. Because the assignment
was a temporary one, id., Haig retained his assignment as Vice
Chief of Staff of the Army. He planned to return on a full-time
basis to his Army post at the conclusion of his temporary ser vice
at the behest of the President.
During the period May 4 through July 31, Haig pe rformed
for the President duties essentially of an administrative nature.
Representative examples of Haig's duties included coordinating
dissemination of presidential directives, insuring receipt by the
President of information necessary for decision making, coordinating
staff actions, and supervising the operation of the White House staff.
These functions correspond to some extent, but not entirely, with
those previously performed by H. R. Haldeman. However, Haig
did not assume Haldeman's position, which remained vacant.
After the lapse of some time, the President and General Haig
agreed that Haig's services would be required for a longer period
than had originally been anticipated and that his role should be
expanded to include a more substantive, policy-oriented area of
responsibility. General Haig immediately took steps to be retired
2
FORD LIBRARY
from the Army. He chose August 1, 1973, as the effective date
of his retirement to allow time for administrative processing
and Senate confirmation of his retirement request, for moving
to civilian quarters, and for the transfer of authority to his
successor as Vice Chief of Staff of the Army.
On June 14, 1973, the President nominated General Haig
for retirement and on July 14, 1973, the Senate duly voted its
advice and consent. See 119 CONG. REC. S13516 (daily ed.
July 14, 1973). General Haig retired on July 31, and his name
was placed on the retired list on August 1, 1973. On the latter
date, the President for the first time appointed Haig an Assistant
to the President, under title 3 of the United States Code, and
Haig for the first time took an oath of office, received a presidential
commission, and was placed on the White House payroll by salary
order.
Discussion
10 U.S.C. § 973(b) (1970), derives from the Act of July 15,
1870, ch. 294 § 18, 16 Stat. 319. As most recently amended and
recodified, see Act of Jan. 2, 1968, Pub. L. No. 90-235, 4(a)
(5)(A), 81 Stat. 759, it reads:
Except as otherwise provided by law, no officer
on the active list of the Regular Army, Regular Navy,
Regular Air Force, Regular Marine Corps, or Regular
Coast Guard may hold a civil office by election or appoint-
ment, whether under the United States, a Territory or
possession, or a State. The acceptance of such a civil
office or the exercise of its functions by such an officer
terminates his military appointment.
Based upon the facts outlined above, the Department of
Defense concludes that at no time prior to his retirement did
General Haig either accept any civil office within the meaning
of the quoted statute, nor did he exercise the functions of any
such office. We further conclude that there is statutory authority
for the type of service which General Haig rendered during the
period in question. Lastly, we conclude that even if section 973(b)
is applied to General Haig's performance of his duties, the de
VONO
facto officer doctrine should foreclose any forfeiture.
3
1. General Haig Did Not, While An Officer Of The Regular
Army, Hold Any Civil Office By Election Or Appointment,
Nor Did He Exercise The Functions Thereof.
The term "civil office" is a term of variable meaning, the
connotation of which changes with the context in which it is used.
Morganthau V. Barrett, 108 F. 2d 481, 483 (D. C. Cir. 1939).
The meaning to be given the term when used in a statute should be
that which will effectuate the purposes of the statute being construed.
See, e. g., Pardon V. Puerto Rico ex rel. Castro, 142 F. 2d 508,
510 (1st Cir. 1944).
From the debate on the floor of the Senate in 1870 regarding
the antecedent of section 973(b), it appears that the primary concern
of the Congress was the exercise of civil authority by military
officers. CONG. GLOBE, 41st Cong., 2d Sess. 3393-3404 (1870).
To this end, the Congress sought to prevent "the union of the civil
and the military authority in the same hands, " id. at 3401, in part
because it was concerned that a military officer exercising such
authority would be subject to the commands of his military superiors.
The Congress did not intend to prevent civilian officials from seeking
advice or administrative assistance from military officers. See id.
at 3403 (remarks of Sen. Trumbull).
Past Comptrollers General, in interpreting section 973(b),
have consistently ruled that in order to constitute a "civil office"
within the meaning of that section, a position must fall within the
definition of an "office" developed by the Comptroller of the Treasury
in 4 COMP. DEC. 696 (1898). See, e.g., 25 COMP. GEN. 377, 383-
85 (1945). In that opinion, the Comptroller described the fundamental
elements of an office:
The exercise of a function of government is clearly
an attribute of a public office. When it is considered
what the functions of government are, and how they are
administered, this attribute is seen to be fundamental.
The chief functions of government are to make laws,
to execute them, and to administer justice. Under
our system of government there can be no laws enacted
or executed, nor justice administered, except by pe rsons
authorized by law to perform those functions. Not one
?
FORD
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4
of the powers of the Government can be legally exercised
until authority has been granted by law for the purpose.
In accordance with this view, an office may be defined
as authority to exercise a function of government.
4 COMF. DEC. 696, 701 (1898).
Applying this definition, both you, e.g., 44 COMP. GEN. 830
(1965), and The Judge Advocate General of the Army, e.g., JAGA
1968/4441, Sept. 9, 1968, have consistently required that the
position possess the formal attributes of a public office.
The specific position must be created by law; there
must be certain definite duties imposed by law on
the incumbent, and they must involve the exercise
of some portion of the sovereign power.
44 COMP. GEN. at 832; cf. United States V. Hartwell, 73 U.S. (6
Wall.) 385, 393 (1868). IT State courts applying provisions in their
1/ A contrary definition sometimes, compare 35 OP. ATT'Y GEN.
187, 190 (1927), with 13 OP. ATT'Y GEN. 310 (1870), relied on
by the Attorney General is premised on a faulty reading of the
purpose of the prohibition. The Attorney General has stated that
in his view
[w] hether a [position] is an office within the meaning of
§ 1222, R.S., the predecessor of section 973(b)]
...
depends largely on the extent of the work to be performed
by the incumbent and the amount of time required to be
devoted to that service, the purpose being to prevent an
officer of the Army from accepting any office the duties
of which will substantially interfere with the performance
of his duties as an officer of the Army. 35 OP. ATT'Y
GEN. at 190. The legislative history demonstrates,
however, that Congress was concerned not with protecting
military officers from the demands of other duties but
rather with preventing the exercise of civilian authority
by military officers. See p. 4, supra. Moreover, the
statute's inapplicability to employment by the federal
government or by state government which does not rise
to the level of an office and its inapplicability to positions
of any kind in the private sector discredits the Attorney
BERM D .FORD LIBRARY
General's interpretation. Presumably for these reasons,
as well as a total lack of textual support, see 25 COMP.
GEN. 377, 385 (1945), you have adhered to the sovereign
functions test.
5
state constitutions and codes similar to section 973(b) have also so
construed the term. E.g., Martin v. Smith, 239 Wis. 314, 1 N.W.
2d 163, 172 (1941).
The Court of Appeals for the Sixth Circuit in Pope V. Com-
missioner, 138 F. 2d 1006, 1009 (6th Cir. 1943), has elaborated
in another context the applicable indices of a civil officer:
There must be a delegation of a portion of the
sovereign powers of government to be exercised for
the benefit of the public
The duties must be performed independently and
without control of a superior power other than the law.
The court in Pope also identified several other indicia, including
creation by positive law, a formal appointment, an oath of office,
and a well-defined tenure. Id. See also 44 COMP. GEN. 830,
832 (1965).
An examination of the facts in the instant case demonstrates
that General Haig did not occupy a civil office, as defined in these
criteria, during the period in question.
First, assuming that General Haig did occupy the position of
Assistant to the President created by 3 U.S.C. § 106 (1970), that
position is not a "civil office" within the meaning of the tests
described above.
One of the touchstones of a "civil office, 11 see 44 COMP. GEN.
830, 832 (1965), is the presence of "certain definite duties imposed
by law on the incumbent. " 3 U.S.C. § 106 (1970), authorizes the
President to appoint up to six administrative assistants and delegates
to the President authority to define the duties of such assistants as
he may appoint. If the President delegates no functions or purely
administrative functions, it may well be that the position is more
that of a personal assistant than that of a civil officer. Indeed,
the President may, if he so chooses, never call on the incumbent
to do anything. Cf. Letter from Assistant Att'y Gen., Office of
Legal Counsel to The Judge Advocate General of the Air Force,
Oct. 7, 1971 (notary public not civil officer because he may never
be called upon to perform any duties). In any event, whatever the
duties which a particular President may assign to those assistants
6
GEBALD FORD LIBRAS
which he chooses to appoint, Congress cannot be said to have imposed
"certain definite duties
by law on the incumbent. "
More significantly, the position does not "involve the exercise
of some portion of the sovereign power, " another of the applicable
touchstones. 44 COMP. GEN. at 832. As previously noted, see
p. 5, supra, "sovereign power" contemplates the authority to act
legislatively, administratively, or judicially with binding legal effect
and without the need for approval by a higher power. Manifestly,
General Haig was in no position to legislate or to djudicate; and any
executive function which he may have had was not committed by law
to an Assistant to the President, assuming that he held such a
position, but would have been wholly derivative from the President.
In actuality, General Haig exercised none of these functions.
His only assignment was to perform certain administrative functions
at the request of the President, to coordinate the work of the White
House staff, and, perhaps, to discuss policy issues with the President.
See p. 2, supra. None of these is the function of a civil office, as
opposed to the function of an agent. See 44 COMP. GEN. at 832; cf.
CONG. GLOBE, 41st Cong., 2d Sess. 3403 (1870) (detail of officer
to perform clerical duty). He made no final operational decisions;
that is, his duties were not "performed independently and without
control of a superior power other than the law. " Pope V. Com-
missioner, 138 F. 2d 1006, 1009 (6th Cir. 1943). Nor could the
President have delegated governmental functions to him, since
3 U.S.C. § 301 (1970), authorizes such delegations only to
the head of any department or agency in the
executive branch, or any official thereof who is
required to be appointed by and with the advice
and consent of the Senate
An Assistant to the President falls into neither of these categories.
All final delegations of authority are required to be published
in the Federal Register. See 3 U.S. C. § 301 (1970); 5 id. § 552(a).
Since no delegations to the position of Assistant to the President
held by Mr. Haldeman appear in the Federal Register, no sovereign
authority has been delegated to that position. Therefore, the
position General Haig is alleged to have occupied is not a civil
office within the meaning of section 973(d).
7
Second, from May 4 through July 31, 1973, General Haig
served the Government only as Army Vice Chief of Staff. He did
not become Assistant to the President until August 1, 1973. Prior
to his retirement, General Haig neither held, nor exercised the
functions of Mr. Haldeman's position within the meaning of section
973(b).
The ordinary tests of when one holds an office supports this
conclusion. No formal instrument appointing General Haig to the
statutory position of Assistant to the President or to any other
office outside the military was executed until that date. Cf. 1
COMP. GEN. 499, 503 (1922) (although a military officer could
conceivably have served on military orders on Alaskan Engineering
Commission without breaching § 973(b)'s predecessor, since he
was formally appointed by the President, military commission
vacated.) Nor was there any other indicium of appointment.
General Haig had taken no oath of office. He had been given no
tenure. Rather, General Haig was assisting the President only
in a temporary capacity, until permanent arrangements for a
successor to Mr. Haldeman could be made. General Haig received
no "emoluments" for his service; his only compensation was the
pay and allowances to which he was entitled as a general in the
United States Army. Throughout his temporary assignment,
General Haig retained his military assignment as Vice Chief of
Staff of the Army. Thus, General Haig did not occupy the position
of Assistant to the President prior to August 1, 1973.
The characterization of General Haig's service as an "appoint-
ment" by Mr. Ronald Ziegler, then White House press secretary,
upon which your letter of February 7 principally relies, should
not be determinative. Mr. Ziegler's imprecise use of the word
"appointment" in the informal atmosphere of a press conference
is without legal effect.
Although he did not become Assistant to the President until
August 1, General Haig did perform prior to that date some of the
same tasks as Mr. H. R. Haldeman had previously. That General
Haig may have performed certain functions which some might deem
not purely "military" in nature, however that concept may be defined,
does not mean that he exercised the functions of a civil office so
long as he performed them as part of his military duties under orders
8
through the chain of command. In enacting section 973(b)'s prede-
cessor, Congress intended not to interfere with the so-called "detail
rule, 11 allowing a military officer to be detailed to another agency
of the Government to perform certain duties civil in nature. When
queried about the limits placed by the proposed law on the President's
authority to detail officers, Senator Trumbull, one of the sponsors
of the legislation, responded "Anything that a detail covers this
section does not interfere with. 1! CONG. GLOBE, 41st Cong., 2d
Sess. 3403 (1870). To the further suggestion that "performing the
duties of a clerk, whether by detail or anything else, is fulfilling
the functions of a civil office, " Senator Trumbull replied:
No, sir; to fulfill the functions of an office he must
be the officer. He must have the power of the officer if
he performs the functions of the office. I do not understand
that a person can fulfill the functions of a civil office unless
he holds the civil office. He must be the officer. That is
the meaning of this section as I understand it.
Id.
The detail rule was first relied upon in a reported opinion
to approve the performance of civilian service by a military officer,
notwithstanding section 973(b)'s predecessor, by the Attorney
General just ten years after the statute's eñactments. In 16 OP.
ATT'Y GEN. 499 (1880), he ruled that a military officer could be
assigned to duty in the United States Geological Survey, under the
Department of the Interior, without contravening the statute. In
what remains the classic statement of the rule, the Attorney
General concluded:
[W]hile the service to which the officer might be
assigned would be civil and lie within the sphere of
a civil office, if it were performed under the authority
and in obedience to the orders of his military superior,
and not as a duty which it was incumbent upon him to
perform by reason of any relation to or connection
with the office, it could not be said that in thus per-
forming the service he was exercising the functions
of such civil office.
2/
If one concludes that Assistant to the President is not a civil office,
one need not consider this point to conclude that the violation of
section 973(b) has not occurred.
FORD
GENALD
9
Id. at 499-500. The Attorney General has consistently adhered to
this rule. See 20 OP. ATT'Y GEN. 604, 605-06 (1893) (detailed
officers "do not, within the meaning of the Revised Statutes, hold
any civil office"); cf. 35 OP. ATT'Y GEN. 187, 188 (1927). The
Comptroller General has followed the lead of the Attorney General
in adopting this construction of section 973(b). E. g., DEC. FIRST
COMP. 1893-1894, at 88, 92-93 (1893) (holding that military officers
could be detailed by the President to the Boundary Commission with-
out vacating their commissions); see 25 COMP. GEN. 38, 40 (1945);
1 COMP. GEN. 499 (1922); 4 COMP. DEC. 696, 701 (1898).
The detail need not be specifically authorized by statute. In
29 COMP. GEN. 363, 365, 368-69 (1950), the Comptroller General
ruled, in the absence of any legislation specifically authorizing it,
that an Army officer could, without having his commission vacated,
be "loaned or assigned to the Department of the Interior for a period
of several years" as Commissioner of Roads for Alaska, on the
understanding that he "has not executed an oath of office as such
commissioner and that he continues to draw the pay and allowances
of a colonel in the Army, " since none of the technical attributes of
"office" were involved.
The judicial gloss given to section 973(b) in Johnston V. United
States, 175 F. 2d 612 (4th Cir. 1949), reflects approval of the detail
rule. In Johnston, plaintiff had been detailed by his military superiors
to duty as an assistant counsel to the National Recovery Administration.
Plaintiff tried to recover from the United States the extra compensation
to which he would have been entitled as an employee of the NRA,
arguing, inter alia, that his Army commission had been vacated by
operation of law and that he was therefore entitled to pay as a de facto
officer of the NRA. The court rejected his claim, noting that
Revised Statutes § 1222 [ now 10 U.S.C. § 973(b)]
has not generally been thought to apply where a military
officer has merely been detailed by his military superiors
to duty with a civilian agency. 16 Op. Attys. [sic] Gen.
499; Decisions of the First Comptroller 88, 93.
Id. at 618.
This rule is now embodied in section III. D. of Department of
Defense Directive 1344. 10 (September 23, 1969), which provides:
GERALD
10
Civil office is an office, not military in nature,
that involves the exercise of the powers of authority
of civil government. It may be either an elective or
an appointive office under the United States.
The term "civil office" shall not include offices
to which military personnel may be assigned in a
military status.
Such a regulation, adopted by the agency most intimately involved
with the subject, is, of course, entitled to considerable respect.
In summary, General Haig occupied no office other than Vice
Chief of Staff of the Army until August 1, 1974; rather, he was
detailed to perform certain tasks for the President, within the
scope of the administratively and judicially approved "detail rule, "
now embodied in departmental regulations.
As already noted, Congress, in enacting section 973(b), was
concerned with preventing the exercise of civilian authority by
military officers and not with the performance by military officers
of administrative tasks normally performed by civilians. For
this reason, in applying section 973(b), a "civil office" is identified
by its occupant's authority to exercise sovereign functions. The
performance of administrative duties, even those normally
associated with an "office, " is not the exercise of the functions of
that office. The "exercise of its functions, " when used with
reference to a civil office, means the exercise of whatever
sovereign functions the office has been assigned. You have, for
instance, stated in the past that an agent may perform any number
of duties which have devolved on another as the head of a depart-
ment without thereby becoming a "civil officer" so long as he is
not given authority to exercise a function of government, 4 Comp.
Dec. 696, 701 (1898). Moreover, fear of directions from a
military officer's military superior conflicting either with directions
from his civilian superior or from his conscience (as when the
officer is a legislator who must exercise independent judgment)
is unwarranted in this case, since the President is both the civilian
superior and the military commander-in-chief of the officer in
question. U.S. CONST. art.
II, §2. Cessante ratione legis, cessat et ipsa lex.
Three additional factors militate for accepting the conclusion
reached herein.
11.
First, this conclusion is in accord with an administrative
practice of longstanding. Historically, Congress has left unfettered
the President's freedom to seek assistance and advice from whom-
ever he chose so long as he did not delegate any of the sovereign
authority of the President to such men. See generally E. CORWIN,
THE PRESIDENT: OFFICE AND POWERS, 1787-1957, at 71, 300-
01 (4th rev. ed. 1957). Indeed, although "Presidents have, of
course, 'always had some kind of help in the discharge of their
duties,
it was not until 1857 that Congress appropriated
money for a presidential clerk. " Id. at 300-01. This manifests
the understanding that the President's authority to seek assistance
is not limited to those whom the Congress authorizes him to employ.
Among those from whom Presidents have sought assistance
in the past are a number of active duty military officers. The most
recent example is then Brigadier General Andrew Goodpaster's
service as an assistant to President Eisenhower. In 1870, when
section 973(b) was first enacted, four officers on the active list
of the Regular Army were serving as secretaries to President
Grant. These secretaries performed functions beyond those of a
clerical secretary. No visitor was admitted to the President until
one of the secretaries had ascertained the caller's mission and had
judged it worthy of the President's personal attention. In 1869,
Grant sent one of the secretaries to Santo Domingo to investigate
its government and finances with a view toward annexing the
country by purchase. See generally U.S. GRANT, ULYSSES S.
GRANT: POLITICIAN 198 ff. (1935); C. G. BOWERS, THE
TRAGIC ERA: THE REVOLUTION AFTER LINCOLN 296-97
(1929). Nevertheless, although Congress' attention was called
to this fact during the debates on the dual office act, CONG.
GLOBE, 41st Cong., 2d Sess. 3403 (1870) (remarks of Sen.
Williams), the practice continued and one of the men served
President Grant as secretary until 1876.
Third, this conclusion is supported by policy considerations
stemming from significant constitutional values. The President's
power as commander-in-chief, U.S. CONST. art. II, §2, gives the
President broad authority over the assignment of military personnel.
See also 10 U.S.C. § 3012(e) (1970) (power of the Secretary of the
Ariny to assign Army members). A statute should not be read to
infringe on this authority unless its intent to do so is quite apparent
on its face.
LIBRARY
12
Added to the balance, as well, must be the general delegation
of executive authority to the President. See U.S. CONST. art.
VI, §1.
Following the sudden resignation of several top aides, the
President believed it necessary to call on extremely short notice
upon men in whose ability, experience, and judgment he had great
trust. One of the men upon whom he called was the Vice Chief of
Staff of the Army. One should be hesitant to construe an ambiguous
statute so broadly as to prevent the President from seeking temporary
assistance in what may fairly be characterized as near emergency
conditions from the members of his executive departments, military
as well as civilian, especially in view of the consistent historical
practice both at the time of the 1870 statute's enactment and there-
after.
You apparently would allow the President to seek advice from
military officers on military and foreign affairs subjects but not
on other matters. Thus, neither you nor any other official has
questioned either General Haig's prior role as deputy to Mr.
Kissinger nor the use of high ranking officers as military aides
to advise the President on matters of national defense. See
COMMISSION ON THE ORGANIZATION OF THE EXECUTIVE
BRANCH OF THE GOVERNMENT [HOOVER COMMISSION],
GENERAL MANAGEMENT OF THE EXECUTIVE BRANCH 12-13
(1949). But the proper distinction is not based on the nature of
the subject matter involved; a military man cannot serve as
Secretary of State or, with one statutory exception, see 10
U.S.C. § 3017(b) (1970), as Secretary of the Army. Rather,
the distinction should be based on the operative role the military
man fills; i. , whether he exercises a sovereign function. More-
over, the fact that an adviser occupies an office in the Executive
Office Building, as was true of General Haig's earlier White
House service, or that the course of advice is lengthy rather
than brief should not be determinative of the existence of a
violation of section 973(b). Cf. 44 COMP. GEN. at 833 (fact
that position causing violation temporary immaterial). The
level at which the officer serves is similarly immaterial. See,
e.g., 29 COMP. GEN. 363, 369 (1950).
Finally, this conclusion is supported by considerationsef equity.
Applying the forfeiture provision of section 973(b) broadly in a border-
line situation such as this could require the officer involved to make
13
a Hobson's choice. On the one hand, he can comply with the order
of a superior assigning him to a particular duty and subject himself
to loss of his commission, of his career, and of his retirement
benefits. On the other hand, he can refuse the order and subject
himself to trial by court-martial (see Uniform Code of Military
Justice, art. 92, 10 U.S.C. § 892 (1970)), incarceration, dis-
missal from the service, and loss of his commission, of his
career, and of his retirement benefits. To require an officer
of the armed forces in such a case to refuse a direct order from
a superior -- in this case, the Commander-in-Chief -- on the
basis of an imprecise statute which has been given varying inter-
pretations by administrative agencies under penalty of a substantial
forfeiture if he guesses incorrectly is hardly equitable.
At least two other agencies of Government have confirmed
the conclusion reached herein.
First, in order for General Haig to have retired in the grade
of general, it was necessary for the Senate to advise and consent
to his being placed on the retired list in that grade. 10 U.S. C. §
3963 (1970). Given this opportunity to review General Haig's
military status, the Senate confirmed his retirement without
debate. 119 CONG. REC. S13516 (daily ed. July 14, 1973).
This action suggests that the Senate did not believe that General
Haig had failed to meet the prerequisites established for retire-
ment by the statute which your February 7 letter cites. Nor can
one assume that the Senate did not consider the issue presented,
since at the time of that body's action, you had already responded
to an inquiry from Representative John Moss on this subject, and
the litigation director of Public Interest, Inc., Alan B. Morrison,
Esquire, had, with attendant publicity, filed suit in federal court
to strip General Haig of his military rank.
In addition, the Attorney General has implicitly endorsed
the conclusions reached herein: by his representation of defendants
in Morrison V. Callaway, Civil Action No. 1108-73 (D. D. C.,
decided Jan. 8, 1974); by his failure to bring a quo warranto
action pursuant D. C. CODE tit. 16, §§ 16-3501 to -3502 - (Supp. V.
1972), the traditional manner of testing whether a Government
official is illegally holding or exercising an office under the
United States, civil or military; and by his preliminary conclusion,
expressed in his letter of July 6, 1973, to Representative Moss, that
no violation of section 973(b) had occurred.
14
In essence, then, because the alleged violation is far from
clear, because the administrative agencies with primary respon-
sibility in this area have concluded that no violation has occurred,
and because in any event the facts do not warrant any such con-
clusion, I believe that you should reverse your tentative opinion
that General Haig occupied or exercised the function of a civil
office while a member of the Regular Army on active duty.
2. Statutory Authority for General Haig's Temporar y
Service To The President Excepts Him From The
Operation of 10 U.S.C. § 973 (b) (1970).
Wholly apart from the issue whether General Haig occupied
a civil office is a second issue which, I believe, requires reversal
of your tentative opinion.
Section 973(b) provides for statutory exception to its for-
feiture provision. Over the years, Congress has passed a number
of such exceptions to section 973(b). For example, officers may be
detailed to the National Aeronautics and Space Administration, 42
U.S.C. § 2473(b) (12) (1970), without the application of the penalty
of the dual office act. These exceptions need not be express.
See 14 OP. ATT'Y GEN. 573, 573-74 (1875).
3 U.S.C. § 107 (1970), constitutes such an exception which
authorized General Haig to render temporary assistance to the
President at the latter's request. That section provides:
Employees of the executive departments and
independent establishments of the executive
branch of the Government may be detailed from
time to time to the White House Office for
temporary assistance.
The term "employee" has variable meaning depending on
the context in which it is used. Thus, for instance, title 5 of
the United States Code at times defines the term to include
members of the military, e.g., 5 U.S.C. § $ 7342(a)(1)(C),
8311(1)(C) (1970), and at times not to include such personnel.
E.g., id. § 2105(a). Where the language of an act is silent as
to the scope of the term "employee, " the purpose and history
of the legislation must be consulted in determining its meaning.
is
FORD
GERALD
15
The legislative history of section 107 is silent as to whether
military officers may be considered "employees of the executive
departments" within the meaning of the statute. Its purpose, however,
requires that it be interpreted broadly to include military officers.
Section 107 is a remedial statute, designed to provide to the
President on a temporary basis the assistance he requires. I per-
ceive no rationale for excluding military officers from the categories
of employees for the purpose of assisting the President in such
situations. The longstanding practice of military assistance to the
White House Office supports this reading of the statute.
Because so interpreted, 10 U.S.C. §§ 101(5)-(6), 3031(a)
(1970), read together, make the Vice Chief of Staff of the Army an
employee of an executive department. General Haig, then Army
Vice Chief of Staff, could have been detailed to the White House
Office for temporary assistance under authority of 3 U.S.C. § 107
(1970), notwithstanding 10 U.S.C. § 973(b) (1970). That is pre-
cisely what occurred: while retaining his position as Vice Chief
of Staff, General Haig provided temporary assistance to the White
House Office. Consequently, even if you hold that General Haig
would otherwise be within the proscription of section 973(b), this
exception provides a shield from the statutory forfeiture.
3. If General Haig's Service In The White House Office
From May 4 Through July 31, 1973, Is Held Violative
Of Section 973(b), The De Facto Officer Doctrine Provides
A Basis For Retention Of Pay And Allowances Received
And For The Receipt Of Future Retirement Benefits.
Even if you should decide that General Haig's service on the
White House staff during the period in question was in violation of
section 973(b), I believe that General Haig should be held to have
been a de facto officer during the period in question.
The de facto officer doctrine generally provides that when
one occupies an office of the government and performs the functions
thereof under a claim of right and color of title to the office in good
faith, notwithstanding the absence of a de jure right to that office,
the individual is de facto the officer. See generally United States V.
Royer, 268 U.S. 394 (1925); Badeau V. United States, 130 U.S. 439,
452 (1889).
16
During the period in question, General Haig met these qualifi-
cations with respect to the office of general in the United States Army.
He occupied that office under a claim of right and with color of title
thereto. The fact that he continued to hold that office while serving
on the White House staff only after receiving the advice of attorneys
of this Department and the assurances of, among others, the President,
moreover, makes clear that he held the office of general in the good
faith belief that it was his. Thus, General Haig should be held to
have been de facto a general in the United States Army during that
period.
If General Haig is held to have been a de facto officer, there
is little doubt that he is entitled to retain the pay and allowances
which he received as an Army general during the period in question.
E.g., United States V. Royer, 268 U.S. 394 (1925); 30 COMP. GEN.
195, 198 (1950).
There remains, however, the question whether General Haig
is entitled to utilize his status as a de facto officer in order to
qualify for retirement under 10 U.S.C. § 3962 (1970). Although
there is authority to the contrary, we believe the proper holding to
be that the de facto officer doctrine, at least upon the peculiar facts
of this case, provides such a basis.
I have found three sources for the proposition that a de facto
officer may not retire in that status. 36 COMP. GEN. 632, 634
(1957), asserts that the de facto officer doctrine evolved
to protect the interests of the public and individuals whose
interests were involved in the official acts of persons
exercising the duties of an office without being lawful
officers.
Consequently, it notes that de facto officers may retain salaries
which have already been paid them, but it asserts that
there appears to be no sound reason why the rule
should be extended further to cover persons who
are on
a retired list and who have no official
duties to perform from day to day.
Id.
17
This interpretation assumes that the doctrine was in no way
intended to compensate the de facto officer, but rather, that payments
to him had solely been made to him to insure the adequacy of his
performance of duty at the time of performance. This position is
incorrect. It is significant that Badeau had held that the monies
paid him should not be recovered from the de facto officer "ex aequo
et bono" -- "in justice and fairness. 113/ Badeau V. United States,
130 U.S. at 452. Confirming the equitable nature of the doctrine is
your predecessor's holding that not only may a de facto officer retain
the pay and allowances in his possession, but "where it has been
refunded to the Government he is entitled to recover it back. " 30
COMP. GEN. 195, 198 (1950). Indeed, were the purpose of the
doctrine solely to protect third parties, there would be no reason
to allow the de facto officer, once his de facto status is discovered,
to retain the monies previously paid him (assuming he thereafter
no longer performs the functions of the office). This is because
while he was performing the acts, he thought he would be remunerated
as a de jure officer, assuming as we must that he held the office in
good faith; and after the discovery of his status, there is no longer
any need for an incentive, since his performance has ended.
Neither the Court of Claims decision in Heins V. United
States, 149 F. Supp. 331 (Ct. C1. 1957), nor the opinion in 44 COMP.
GEN. 83, 86 (1964), add to the analysis. In the former, the court
denied disability retirement pay to plaintiff because, although a
de facto officer of the Air Force, plaintiff was not legally "entitled
to receive basic pay" at the time his physical disability was incurred
as required by the statute dealing with disability retirement. 4/ The
latter merely relied upon earlier decisions, including the two cited
earlier. The difficulty with Heins is that it misapprehends the nature
of the de facto officer doctrine. It resorts to a purely legal analysis
and therefore concludes that an equitable doctrine should not be
applied, when, in truth, it should have considered the equities in
determining whether an equitable doctrine otherwise applicable to
the facts at hand should have been applied. 44 COMP. GEN. 83,
86 (1964), merely cites earlier precedent without analysis, and
hence, its validity must be held to depend upon the validity of the
precedents which it cites.
BLACK'S LAW DICTIONARY 659 (4th ed. 1951).
4/ This is at most an alternate holding.
FORD
GERALD
18
A proper approach would weigh the equitable considerations
under the facts and circumstances described. We believe that
considerations of equity militate strongly for payment of earned
retirement benefits to a de facto officer.
A de facto officer, by definition serves in good faith and per-
forms the services required of the office holder. In so doing, he
relies upon his understanding (and perhaps the assurances of other,
de jure, officers) that he is entitled to certain benefits. Cf.
RESTATEMENT OF CONTRACTS § 90. The purpose of the de facto
officer doctrine is to make him whole for his acts performed in
reasonable reliance on recompense. Future pay is not required to
meet this objective, because at the time he learns of his de facto
status, he no longer can reasonably rely on future recompense.
This is not true of retirement benefits, which by their very nature
are expected payments in futuro for past service.
If a contrary conclusion is reached, a de facto officer must
be held unknowingly to have assumed the risk that his title to the
office is not valid in law. Not only must the prospective office
holder assume this risk, but he must also forego other opportunities
outside the Government in which this risk would be wholly absent.
Such a result seems inequitable, as well as tending to discourage
the acceptance of offices by qualified individuals.
Although General Haig's service as a de facto officer amounted
to not more than three months, under the interpretation found in
the cited cases, his reliance for this period of three months would
be held to have forfeited pension rights accrued over twenty-six
years of service.
In addition to the notions of reliance, there is as a corollary
a reasonable expectancy of receipt of retirement benefits when
sufficient employment has been performed otherwise to qualify for
such benefits. Viewed from this perspective, once it is ascertained
that a de facto officer has performed his duties in good faith, the
formalistic approach of Heins seems wholly unreasonable.
Consider from both perspectives, reliance and expectancy,
the hypothetical case of one who has served for forty years, only
to learn at the time of his retirement that for that entire period he
has not held the office de jure. This Department does not believe
TO R. FORD LIBRA,
19
that the Government should be prepared to say to that man that he
is not entitled to the retirement benefits normally attendant to that
position. Yet the principal difference between that man and General
Haig is the fact that Haig served for all but three months of his
Government service as a de jure officer.
General Haig's case is also distinguishable, both from the
hypothetical case presented and from the three cases cited above,
in that prior to the time he accepted the assignment which, at worst
from his standpoint, is a de facto office, he had already performed
all the service required for him to retire. Stated slightly differently,
General Haig's right to retirement benefits had already been earned
and his future receipt of such benefits in no way depended on his
service to the Government after May 4. To deny him those benefits
would be most inequitable.
Additionally, from a purely pragmatic standpoint, the approach
taken is an unreasonable assignment of the risks involved. A de facto
officer denied retirement benefits suffers a grievous personal loss,
whereas the cost to the Government from the payment of retirement
benefits to the limited number of de facto officers discovered annually
to be such is miniscule. Thus, it appears desirable for the Govern-
ment to act as an insurer against this possible loss.
Conclusion
Based upon the foregoing I conclude that your tentative opinion
as expressed in your letter of February 7, 1974, was erroneous.
I recommend that, for the reasons specified above, you will take
the position that Alexander M. Haig, Jr., remains a General,
United States Army (retired), and that he is entitled to retain the
pay and allowances and the retirement benefits paid him to date
and to continue to receive the retirement benefits which, through
a long and distinguished career in the service of this country, he
has fully earned.
Very truly yours,
Robert W. Berry
General Counsel
CERALD FORD
20
CONFROLLER
CENERAL
COMPTROLLER GENERAL OF THE UNITED STATES
OF
WASHINGTON, D.C. 20548
THE
STATE
UNITED
B-150136
July 2, 1974
The Honorable
The Secretary of Defense
Dear Mr. Secretary:
Reference is made to our letter B-150136, dated February 7, 1974,
requesting your views concerning the service of General Alexander M.
Haig, Jr., USA, 195-12-3625, in the White House during the period from
May 4 to July 31, 1973, while he was an officer on the active list of
the Regular Army. In that letter we stated that in view of the factual
situation (primarily as reported in White House press releases) concern-
ing General Haig's functions and duties at the White House, we had tenta-
tively concluded that when he began to exercise those functions and duties
on or about May 4, 1973, he occupied a civil office and that his military
appointment automatically terminated by operation of law under 10 U.S.C.
973(b). We also tentatively concluded that with the termination of his
military appointment General Haig would not appear to have qualified as
a "commissioned officer of the Army" for the purposes of 10 U.S.C. 3911,
the law under which we understand he retired on July 31, 1973. As a
result, there was brought into question the legality of the payment to
him of active duty pay and allowances during the period May 4 to July 31,
1973, and retired pay from and after August 1, 1973.
We have now received a letter dated April 22, 1974, from the General
Counsel of the Department of the Army replying on behalf of the Depart-
ment of Defense to our February 7, 1974 letter. In his letter the Gen-
eral Counsel provides the following "Statement of Facts" concerning this
matter:
"After serving for almost four years in the Office of
the President, first as Military Assistant to the President
for National Security Affairs and subsequently as Deputy
Assistant to the President for National Security Affairs,
General Alexander M. Haig, Jr., returned on January 4, 1973,
to the Army staff, having been assigned on that date as Vice
Chief of Staff of the Army.
"On April 30, 1973, the White House announced the resig-
nation of two of the President's senior assistants: Messrs. H. R.
Haldeman and John Ehrlichman. Because of his confidence in
General Haig and because of his uncertainty as to the future
roles of his personal staff, on May 3, 1973, the President
FORD is LIBRARY CTV 8988
See Dai Has Seen
G-1201
JUL 1974
7/140A
B-150136
directed Haig to assist him temporarily with the functioning
of the White House staff in order to help fill the void left
by the resignations. Haig complied with this order and
assumed his new duties the following day. Because the assign-
ment was a temporary one, id., Haig retained his assignment
as Vice Chief of Staff of the Army. He planned to return on
a full-time basis to his Army post at the conclusion of his
temporary service at the behest of the President.
"During the period May 4 through July 31, Haig performed
for the President duties essentially of an administrative
nature. Representative examples of Haig's duties included
coordinating dissemination of presidential directives, insuring
receipt by the President of information necessary for decision
making, coordinating staff actions, and supervising the opera-
tion of the White House staff. These functions correspond to
some extent, but not entirely, with those previously performed
by H.R. Haldeman. However, Haig did not assume Haldeman's
position, which remained vacant.
"After the lapse of some time, the President and
General Haig agreed that Haig's services would be required
for a longer period than had originally been anticipated
and that his role should be expanded to include a more sub-
stantive, policy-oriented area of responsibility. General Haig
immediately took steps to be retired from the Army. He chose
August 1, 1973, as the effective date of his retirement to allow
time for administrative processing and Senate confirmation of
his retirement request, for moving to civilian quarters, and
for the transfer of authority to his successor as Vice Chief
of Staff of the Army.
"On June 14, 1973, the President nominated General Haig
for retirement and on July 14, 1973, the Senate duly voted
its advice and consent. See 119 CONG. REC. S13516 (daily ed.
July 14, 1973). General Haig retired on July 31, and his name
was placed on the retired list on August 1, 1973. On the latter
date, the President for the first time appointed Haig an Assist-
ant to the President, under title 3 of the United States Code,
and Haig for the first time took an oath of office, received
a presidential commission, and was placed on the White House
payroll by salary order."
- 2 -
FORD i GERALD LIBRARY
B-150136
The General Counsel's letter also specifically states that from
May 4 through July 31, 1973, General Haig served the Government only
in the capacity of Army Vice Chief of Staff; that he did not become
Assistant to the President until August 1, 1973; and that prior to
his retirement, he neither held, nor exercised the functions of
Mr. Haldeman's position within the meaning of 10 U.S.C. 973(b). In
this regard, that letter states that the characterization by the White
House Press Secretary of General Haig's service as an "appointment"
should not be determinative since the imprecise use of the word "appoint-
ment" in the informal atmosphere of a press conference is without legal
effect. The General Counsel's letter concludes by expressing the view
that our tentative conclusion is erroneous and recommends that we take
the position that General Haig remains a General, United States Army
(retired), and that he is entitled to retain the pay and allowances
and retirement benefits paid to him to date and to continue to receive
retirement benefits.
We have also received affidavits of General Haig; Mr. Jerry H.
Jones, Special Assistant to the President, who is responsible for
personnel administration of members of the White House Staff; and
Major General H.G. Moore, USA, Commanding General, Military Personnel
Center, United States Army, who is the official custodian of the per-
sonnel records of all living retired general officers of the Army,
including General Haig. Those affidavits support the General Counsel's
statement of the facts in this matter.
Our tentative conclusion that as a result of his White House
service, General Haig's military appointment terminated on May 4, 1973,
was based on a finding that on that date he began to exercise the
functions of the position previously held by Mr. Haldeman. A position
created by 3 U.S.C. 106 which in our view is a civil office within the
meaning of 10 U.S.C. 973(b). However, as noted above, the General
Counsel's letter and the supporting affidavits set forth the facts in
the matter and indicate that, while General Haig performed some admin-
istrative functions for the President which correspond to some extent
with some of the functions Mr. Haldeman performed, he did not substan-
tially perform the functions of that position until after his retirement
from the Army, effective August 1, 1973.
As the General Counsel's letter also points out, the Attorney
General's representation of the defendants in the case of Morrison V.
Callaway and Haig, Civil Action No. 1108-73, United States District
Court for the District of Columbia, decided January 8, 1974, implies
that the Attorney General found no impropriety in General Haig'
GERALD
LIBRARY
- 3 -
B-150136
service in the White House. In addition, as the General Counsel's
letter indicates, on July 14, 1973, the Senate confirmed General Haig's
retirement in the grade of general, as is required by 10 U.S.C. 3962(a).
While the matter is not entirely free from doubt, in view of the
facts set forth above and since General Haig's current service as an
Assistant to the President while on the retired list of the Army clearly
does not violate 10 U.S.C. 973(b) (see 25 Comp. Gen. 38, 41 (1945)),
this Office will no longer question the active duty pay and allowances
paid to General Haig for the period May 4 to July 31, 1973, and the
payment of retired pay from and after August 1, 1973.
True Sincerely yours, Q. starts
Comptroller General
of the United States
FORD & GERALD LIBRARY
- 4 -
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
October 24, 1975
MEMORANDUM FOR:
PHIL BUCHEN
DONALD D RUMSFELD
FROM:
I have read your memo to Brent Scowcroft of October 20
concerning gifts to U. S. Government Officials. It seems
to me that what you ought to do is sit down with Brent and
Henry and lay down the law. I don't see any need for a
meeting unless that doesn't work.
Called Brent
Brent
11/7/75
FORD : LIBRARY 0ERALD
THE WHITE HOUSE
WASHINGTON
October 20, 1975
MEMORANDUM FOR:
BRENT SCOWCROFT
FROM:
PHILIP BUCHEN T.
SUBJECT:
Gifts to U. S. Government
Officials
In view of the information being disclosed to the
House Select Committee involving the Barzani gifts
and the discussions we had last evening, I attach
the following:
(1) A copy of the statute on foreign gifts
and decorations (5 USCA, Section 7342) .
(2) Regulations issued from the State Depart-
ment on acceptance of gifts and
decorations from foreign governments
(22 CFR, part 3).
(3) Procedures adopted for processing of
gifts received by or on behalf of the
President which are from foreign
sources.
(4) Page 4 of the Standards of Conduct for
the White House staff with possibly
relevant subparagraphs marked.
If the gifts in question were from an "official agent
or representative" of a foreign government, the statute
and the regulations would apply and the use or the
disposition thereof would be controlled by Section 3.6
of the regulation. If the gifts are not from such an
official agent or representative, they are then subject
to the Standards of Conduct for the White House staff
as shown in the attached excerpt.
FORD is LIBRARY QERALD
- 2 -
This excerpt comes from the current Standards of
Conduct, but the same provisions appeared in the
Standards of Conduct which were in effect under
President Nixon. I do not have copies of the
State Department's standards of conduct, but I
assume they contain similar provisions.
I am very fearful that unless there is compliance
with the procedural requirements imposed by either
the foreign gifts regulation or the standards of
conduct, the Committee may use the information
supplied to make telling charges of non-compliance.
It is also likely that the Committee may use this
opportunity to investigate the whole story of
gifts involving persons in the service of the
State Department, CIA, and the White House insofar
as gifts or other favors have come from governments,
organizations, or persons benefiting from covert
activities or other intelligence related functions
of the U. S. government.
The urgency of this situation, I believe, requires
that a meeting be held promptly which should
include Jack Marsh and Don Rumsfeld or someone from
Don's office.
Attachments
CC: Jack Marsh
Don Rumsfeld
FORD & LIBRARY OERALD
THE WHITE HOUSE
WASHINGTON
November 3, 1975
MEMORANDUM FOR:
PHIL BUCHEN
12
FROM:
KEN LAZARUS
Attached are copies of 10 U.S.C. Section 973(b) and
50 U.S.C. Section 402.
The first prohibits any active military officer from
accepting appointment to any office of the United
States. The second provides that the Executive
Secretary in charge of the staff of the National
Security Council shall be a civilian executive.
I assume that these provisions were considered
relevant to any appointment of General Scowcroft
to succeed Henry Kissinger as the President's
national security adviser.
Roosevelt Smith
Attachment
General
feen.
205CSINT 3107
AirForce
Comptrellor General
GERALD FORD LIBRARY
Subt. A
Ch. 49 MISCELLANEOUS PROHIBITIONS, ETC. 10
§
974
e was as-
(b) Except as otherwise provided by law, no officer on the active
ination of
list of the Regular Army, Regular Navy, Regular Air Force, Regular
ce did not
knew that
Marine Corps, or Regular Coast Guard may hold a civil office by
authority
election or appointment, whether under the United States, a Territo-
sult in se-
ry or possession, or a State. The acceptance of such a civil office
el. Gaston
Supp. 986.
or the exercise of its functions by such an officer terminates his
military appointment.
a sergeant
it was in-
Added Pub.L. 90-235, § 4(a) (5) (A), Jan. 2, 1968, 81 Stat. 759.
assigned
to believe
mated ter-
Historical Note
made by
Legislative History. For legislative 1967 U.S.Code Cong. and Adm.News, p.
processing
history and purpose of Pub.L. 90-235, see 2635.
1 have ap-
to oppose
Cross References
nation of
'al's erro-
Reduction in retired or retirement pay during term of employment, see section 5532 of
: termina-
Title 5, Government Organization and Employees.
custodian
titioner to
Library References
Armed Services 15.
C.J.S. Army and Navy §§ 14, 19.
is burden
his appli-
Notes of Decisions
connection
estimated
1. Standing to sue
rough the
Plaintiff could not successfully claim
Plaintiff did not have standing as tax-
e petition-
standing to sue on basis of his status as
payer to bring action challenging legality
officer's
a citizen in action challenging legality of
of defendant's simultaneous service as an
exercising
defendant serving simultaneously as an
assistant to the President of the United
tion over
assistant to President of the United
States and as an officer of the Army
not show
States and as an officer of the Army
holding the rank of General under provi-
writ of
holding the rank of General, since plain-
sion of this section stating that no offi-
tiff did not rely on the precise self-oper-
cer on active list of regular Army may
ative provision of U.S.C.A.Const. Art. 1, §
hold civil office under United States and
and guilty
6, cl. 2, seeking to maintain independence
that acceptance of civil office or exercise
period ex-
among governmental branches but rath-
of its functions terminates military ap-
don of his
er on a congressional enactment seeking
pointment. Id.
quired to
to guard against potential for undue in-
lod, under
fluence. Morrison V. Callaway, D.C.D.C.
to add to
1974, 369 F.Supp. 1160.
so-called
to habeas
it he had
§ 974.
Civilian employment: enlisted members
process in
good faith
Except as provided in section 6223 of this title no enlisted mem-
larged, in
ber of an armed force on active duty may be ordered or permitted to
himself of
in such
leave his post to engage in a civilian pursuit or business, or a per-
Moses, D.
formance in civil life, for emolument, hire, or otherwise, if the pur-
suit, business, or performance interferes with the customary or reg-
ular employment of local civilians in their art, trade, or profession.
FORD
il func-
Added Pub.L. 90-235, § 6(a) (6) (A), Jan. 2, 1968, 81 Stat. 762.
Historical Note
Regular
BERALD
Legislative History. For legislative 1967 U.S.Code Cong. and Adm.News,
ar Coast
history and purpose of Pub.L. 90-235, see 2635.
3 him to
terferes
Library References
Armed Services 25.
C.J.S. Army and Navy § 30.
13
50
401
WAR AND NATIONAL DEFENSE
WAR Al
Note 8
British-American command, was within
ents of which the particular case is com-
Classification Act of 1949, ch
import of "international organizations"
prised. Gayer V. Schlesinger, 1973, 490
Title 5. Section 3 deleted pr
in this context. Id.
F.2d 740, 160 U.S.App.D.C. 172, amended
mitting the Secretary of Def
"Operation Keelhaul" file. which was
49+ F.2d 1135.
tablish not more than 50 re
created in 1946 by Allied Force Head-
development positions in the N
11. Scope of interrogation
curity Agency.
quarters. a post-World War II joint Bri-
Government officials interrogating ho-
tish-American command, was not subject
Sections 2, 4-8 of Pub.L. 86
mosexual to determine whether security
ed as follows:
to mandatory declassification under
clearance should be withdrawn may be
terms of executive order which provides
"Sec. 2. The Secretary of I
relevantly and materially informed but
automatic declassification for documents
his designee for the purpose) i
reasonable latitude must be accorded the
after 20 years, in view of exception for
ed to establish such positions.
homosexual as to specificity of his an-
materials furnished by foreign govern-
point thereto, without regard t
swers to permissible questions: the iden-
ments or international organizations, and
service laws, such officers and
tity of sex partners is not to be insisted
fact that some of documents were prod-
in the National Security Agenc
upon, unless in a particular case some
ucts of British members of the joint
be necessary to carry out the ft
special reason can be held to justify it.
force. Id.
such agency. The rates of basi
Gayer V. Schlesinger. 1973. 490 F.2d 740,
sation for such positions shall
9. Record
160 U.S.App.D.C. 172, amended 494 F.2d
by the Secretary of Defense (0
Record did not warrant conclusion that
1135.
ignee for the purpose) in relat:
the Industrial Security Clearance Review
Where plaintiff who sought to set aside
rates of basie compensation C01
Office of the Department of Defense was
the withdrawal of his secret security
the General Schedule of the Cla
applying a per se rule of withdrawing
clearance admitted that he was an active
Act of 1049, as amended [chap
security clearance to homosexuals with-
homosexual, thereby disclosing sufficient
Title 5], for positions subject to
out any consideration of plaintiff's indi-
information with respect to the "sexual
which have corresponding levels
vidual case; the board's remand for sup-
perversion" and probably also the "crimi-
and responsibilities. Except as
plementary rehearing, even though plain-
nal conduct" factors of criterion for
in subsections (f) and (g) of sect
tiff had admitted to being a homosexual,
withholding security clearance, whatever
the Federal Executive Salary Ac
indicated that the determinations were
further information was sought with re-
no officer or employee of the Nat
not the result of a per se rule denying
spect to other criteria, it must not only
curity Agency shall be paid be
clearance to homosexuals. Gayer v.
be relevant but no more intrusive of the
pensation at a rate in excess of
Schlesinger, 1973, 490 F.2d 740, 160 U.S.
privacy than was reasonably necessary.
est rate of basic compensation
App.D.C. 172, amended 494 F.2d 1135.
Id.
in such General Schedule. Not II (
Government officials may seek informa-
seventy such officers and employ
10. Conclusiveness of findings
tion from applicant seeking employment
be paid basic compensation at ra
Some deference must be accorded by
in defense industry as to whether he has
to rates of basic compensation C
the courts to conclusion of the authori-
led and intends to lead a homosexual
in grades 16, 17, and 18 of such
ties charged with responsibility under
life. and other relevant information re-
Schedule." [As amended Pub.L
executive order and directive of the De-
specting particular conduct, but informa-
Title II, § 201, Oct. 4, 1961, 75 S
fense Department with regard to security
tion as to his sexual life must be only
Sept. 23, 1950. c. 1024. Title III,
clearance, and the degree of such defer-
that which is reasonably necessary to
as added Mar. 26, 1964, Pub.L. &
ence must be the result of a nice but not
make a determination with respect to any
Stat. 170; Aug. 14, 1964, Pub.L.
easily definable weighing of the ingredi-
criteria being invoked. Id.
Title III, § 306(h), 78 Stat. 430;
1964, Pub.L. 88-631, § 3(d), 78 Sta
8 402. National Security Council
878]. Oct. 8, 1966, Pub.L. 89-632, § 1(e),
[See main volume for text of (a) and (b)]
"Sec. 4. The Secretary of Defe
his designee for the purpose) is
rized to-
Executive secretary; appointment and compensation; staff employees
"(1) establish in the National
(c) The Council shall have a staff to be headed by a civilian executive
ty Agency (A) professional engi
positions primarily concerned W
secretary who shall be appointed by the President. The executive secre-
search and development and (E
tary, subject to the direction of the Council, is authorized, subject to the
fessional positions in the physic
natural sciences, medicine, and c
civil-service laws and the Classification Act of 1949, to appoint and fix the
ogy: and
compensation of such personnel as may be necessary to perform such du-
(2) fix the respective rates
of such positions at rates eqt
ties as may be prescribed by the Council in connection with the perform-
rates of basic pay contained in
ance of its functions.
16, 17, and 18 of the General Sc
set forth in section 5332 of ti
United States Code [section 5332
Recommendations and reports
tle Employees]. 5, Government Organization
(d) The Council shall, from time to time, make such recommendations,
Officers and employees appointed t
and such other reports to the President as it deems appropriate or as the
sitions established under this S
shall be in addition to the number
President may require.
ficers and employees appointed to
tions under section 2 of this Act
Library references: United States 29 et seq.; War and National Defense @40;
may be paid at rates equal to rat
C.J.S. United States " 24, 62; C.J.S. War and National Defense 6 48.
basic pay contained in grades 16, 17
18 of the General Schedule.'
References in Text. The Classification
Pub.L. S7-793, § 1001(c), Oct. 11, 1962, 76
[As amended Pub.L. 87-367, Title
Act of 1949, referred to in subsec. (c), is
Stat. 864; Sept. 23, 1950, c. 1024, Title
204, Oct. 4, 1961, 75 Stat. 791; P
classified to chapter 51 of Title 5, Gov-
III, § 306(a), as added Mar. 26, 1964,
87-793, § 1001(c), Oct. 11, 1962, 76
ernment Organization and Employees.
Pub.L. 88-290, 78 Stat. 170; Aug. 14, 1964,
864; Oct. 8, 1966, Pub.L. 89-632, § 1(€
Codification. Provisions in subsec. (c)
Pub.L. 88-426, Title III, § 306(h), 78 Stat.
Stat. 878; Pub.L. 91-187, § 2, Dec
which limited the compensation of the
430; Oct. 6, 1964, Pub.L 88-631, § 3(d). 78
1969, 83 Stat. 850].
executive secretary to $10,000 a year were
Stat. 1008; Sept. 6, 1966, Pub.L. 89-554,
omitted since the position referred to is
§ 8(a), 80 Stat. 660; Oct. 8, 1966, Pub.L.
EXECUTIVE
now in the classified civil service and
89-632, § 1(e), 80 Stat. 878; Pub.L. 91-187,
subject to the applicable compensation
§ 2. Dec. 30, 1969, 83 Stat. 850, provided
Ex.Ord.No.10700. Feb. 25. 1957, 22
schedules.
certain administrative authorities for the
1111. as amended by Ex.Ord.No.10773,
The authority for covering excepted
National Security Agency.
3. 1958, 23 F.R. 5061; Ex.Ord.No.1
positions into the classified civil service
Sections 1 and 3 of Pub.L. 86-36-amend-
Sept. 8, 1958, 23 F.R. 6971: Ex.Ord
was given the President by former sec-
ed section 1082 of Title 5, Executive De-
10838, Sept. 17, 1959, 24 F.R. 7519, form
tion 631a of Title 5. By Executive Order
partments and Government Officers and
8743, Apr. 25, 1941 the President exer-
Employees, and section 1581(a) of Title
§ 403. Central Intelligence
cised this authority with respect to many
10, Armed Forces (as modified by section
previously excepted positions.
12(a) of the Federal Employees Salary
Deputy Director; appointment
National Security Agency. Pub.L. 86-
Increase Act of 1958, 72 Stat. 213), respec-
(a) There is established under
36, §§ 1-8, May 29, 1959, 73 Stat. 63, as
tively.
amended by Pub.L. 87-367, Title II, §§
Section 1 exempted the National Securi-
Intelligence Agency with a Direc
201, 204, Oct. 4, 1961, 75 Stat. 789, 791:
ty Agency from the provisions of the
54
THE WHITE HOUSE
WASHINGTON
November 4, 1975
MEMORANDUM FOR:
GENERAL SCOWCROFT
FROM:
PHILIP BUCHEN T.W.B.
SUBJECT:
Assumption of the Duties of
Assistant to the President for
National Security Affairs
This is to present my recommendation that, prior to your
retirement from the Air Force, you should refrain from
assuming the office or exercising the functions currently
held by Secretary Kissinger in his capacity as Assistant to
the President for National Security Affairs.
Legal Constraints
10 U.S.C. 973(b) derives from the Act of July 15, 1870,
ch. 294 §18, 16 Stat. 319. As most recently amended and
recodified, it reads:
* * *
"(b) Except as otherwise provided by law, no
officer on the active list of the Regular Army,
Regular Navy, Regular Air Force, Regular
Marine Corps, or Regular Coast Guard may
hold a civil office by election or appointment,
whether under the United States, a Territory
or possession, or a State. The acceptance of
such a civil office or the exercise of its
functions by such an officer terminates his
military appointment."
* * *
FORD is GERALD LIBRARY
10 U.S.C. 88911, in pertinent part, provides that the Secretary
of the Air Force 11 may, upon the officer's request, retire
- 2 -
a regular or reserve commissioned officer of the Air Force who
has at least 20 years of service 11
Thus, if the exercise of your new duties as the successor to
Secretary Kissinger in his capacity as Assistant to the President
would constitute a "civil office" within the meaning of 10 U.S.C.
973(b), your acceptance of such appointment or exercise of
the functions of such office would have the effect of automatically
terminating your military employment. Moreover, it would
appear that such a termination would also have the effect of
making you ineligible for military retirement benefits to which
you would otherwise be entitled under 10 U.S.C. 88911.
Discussion
The term "civil office" as used in 10 U.S.C. 973(b) and
predecessor statutes has not been statutorily defined. It is a
term of variable meaning, the connotation of which changes
with the context in which it is used. Morganthau V. Barrett,
108 F. 2d 481, 483 (D.C. Cir. 1939). The meaning to be given
the term when used in a statute should be that which will
effectuate the purposes of the statute being construed. See,
e.g., Pardon V. Puerto Rico ex rel. Castro, 142 F. 2d 508,
510 (1st Cir. 1944).
From the debate on the floor of the Senate in 1870 regarding
the antecedent of section 973(b), it appears that the primary
concern of the Congress was the exercise of civil authority by
military officers. CONG. GLOBE, 41st Cong., 2d Sess.
3393-3404 (1870). To this end, the Congress sought to prevent
"the union of the civil and the military authority in the same
hands, 11 id. at 3401, in part because it was concerned that a
military officer exercising such authority would be subject to
the commands of his military superiors. The Congress did
not intend to prevent civilian officials from seeking advice or
administrative assistance from military officers. See, id.
at 3403 (remarks of Sen. Trumbull).
The Comptroller General has consistently required that the
following three criteria must be present to constitute such
"civil office":
PORDO i LIBRARY QERALD
- 3 -
* * *
The specific position must be created by law,
there must be certain definite duties imposed
by law on the incumbent, and they must
involve the exercise of some portion of the
sovereign power [44 Comp. Gen. 830,
832 (1965)].
* * *
An application of these criteria to the facts in the instant case
leads to the following conclusions.
First, it appears that your position as Assistant to the President
for National Security Affairs would be one "created by law". For
at least the last 15-20 years, the position of national security
adviser has been one on the immediate staff of the President
under 3 U.S. C. 8106. Additionally, your de facto function would
involve management of the staff of the National Security Council,
created by 50 U.S. C. §402.
Second, it also appears that the position would include "certain
definite duties imposed by law on the incumbent", viz. "
such duties as the President may prescribe. (3 U.S.C. §106)
Third, and most importantly, the position likely would be held
to "involve the exercise of some portion of the sovereign power. "
Given the concerns of the drafters of 10 U.S.C. §973(b) for
civilian independence from military authority, this would seem
to be the most important touchstone of the three under discussion.
3 U.S.C. §107 provides authority for the detail of military
officers to the White House in order to provide advice on military
matters or administrative assistance. This authority has
traditionally been asserted as a basis for the detail of officers
for service as White House military aides and for the detail
of a Deputy Assistant to the President for National Security
Affairs. In these instances, the theory is that such detailees
are limited to providing administrative support or advice
limited to military matters. On the other hand, the President's
principal national security adviser has traditionally been
responsible for eliminating or minimizing differences of
&
FORD
opinion between the Departments of State and Defense and 12 other
REF
LIBRARY
- 4 -
interested agencies, with a right of direct access to the
President.
Recommendation
The Attorney General and the Acting General Counsel of the
Department of Defense agree with my conclusion that, given
the substantial risks involved, i.e. loss of your military
retirement and other military privileges, you are best
advised to resign your commission in the Air Force prior to the
acceptance of an appointment as Assistant to the President for
National Security Affairs or the assumption of any duties of
that office.
In closing, I should also note that retirement at the grade of
Lieutenant General would require Presidential approval and
the advice and consent of the Senate [10 U.S.C. 8962].
This requirement does not apply to retirement at any grade
below that of Lieutenant General.
GERALD 717 P. FORD
THE WHITE HOUSE
WASHINGTON
November 6, 1975
MEMORANDUM FOR:
BRENT SCOWCROFT
FROM:
PHILIP BUCHEN
SUBJECT:
Assumption of Duties of
Assistant to the President
for National Security Affairs
This follows-up my memo to you of November 4
on the above subject.
Apparently, the quickest way for you to be
eligible for assuming your duties as Assistant
to the President would be for you to go
immediately on terminal leave pending formal
retirement from active duty. 5 U.S.C.
Section 5534a makes provision that a member
of the uniformed service who is on terminal
leave pending separation may accept a Civilian
office in the government of the United States
(see copy attached).
Then when you are on terminal leave and while
you are filling your new position, you can
apply for retirement which would be effective
on the first day of the following month.
Leonard Niederlehner tells me he has
consulted with General Vague as Judge Advocate
General of the Air Force and Len suggests you
get immediately in touch with General Vague
and the Air Force Personnel Office to go on
terminal leave and to take the necessary steps
toward formal retirement.
Attachment
FORD & LIBRARY GERALD
5 § 5534
EMPLOYEES
Ch. 55
cause his name was carried on retire-
after the repeal of the Joint Resoluti :
ment list of other than regular Air Force
of September 22, 1011. effective July :
officers and hence could not recover
1048. the right to the exemption Is
amounts of retirement pay withheld from
Gradall F. U. S., 1962, 157 Ct.Cl.
him during periods in which he was a
civilian employee of government. Leon-
In an action to recover Reserve officip
and 5. U. S.) 1056, 145 F.Supp. 755, 105
retired pay withheld from plaintiff
Ct.Cl. 6S6. certiorari denied ii S.Ct. 1058,
the basis of the dual compensation E.-
353 U.S. 976, 1 L.Ed.2d 1136.
strictions, the exemption from such 5...
striction contained in former section
Under provision of former section 371b
of Title 10, was applicable to plaintite
of Title 10, no existing law could be
even though when he reached the E..,
construed to prevent member of Officers'
quired age of CO lie no longer had co:-
or Enlisted Reserve Corps receiving pay
missioned status in any of the Resident
incident to employment in any civil
components of the armed services. Bow.
branch of public service in addition to
man Γ. C. S., 1001, 1H Ct.Cl. 418.
any "pay and allowances' to which he
might be entitled under laws relating to
the reserve corps, Army or Ait Force Re-
5. Civilian pay
serve Officers on retired list were enti-
In view of the fact that pursuant I.D
tied to retired pay under former section
former section 30r(d) [now section 250
1036 et seq. of Title 10, in addition to
(d)] of this title when a reservist is
pay from civilian employment with CoΓ-
on active duty. or when he is on action
ernment exceeding $3,000 per year, not-
duty for training. lte is not considered to
withstanding provisions of former section
be an officer or employee of the Unite:
50a [now section 5532] of this title which
States or 2 person holding an office 1.8
would prohibit this. Tanner v. U. S.,
trust or profit and that he is authoriz-1
1054. 125 F.Supp. 240, 129 Ct.Cl. 792, certi-
under former section 30r(c) of this title
orari denied 76 S.Ct. S3, 350 U.S. S42, 100
[now this section] to accept a civilian
L.Ed. 751.
position and receive both civilian salary
and retired pay, the employment of =
The repeal of the Joint Resolution of
naval reservist as full-time referee in
September 22. 1041. conferring upon of-
bankrupthy is not prohibited by section
ficers commissioned in the Army of the
63(2) of Title 11, which provides that per-
United States without component the
sons holding any office of profit or envol-
rights, privileges and benefits of mem-
ument under the laws of the United States
bers of the Officers' Reserve Corps. did
07 of any State shall be ineligible to serve
not have the effect of depriving those
as a full-time referee in bankrupter, and
officers of any vested rights such as the
the reservist upon appointment as a I-!-
right to retired pay or the right to have
eree may receive the civilian salary ⑆
that pay exempt from the dual compen-
that position and in addition the retired
sation rohibitions, however where the
pay authorized by section 1331 of Title
component officer is not retired until
10. 1000, 45 Comp.Gen. 405
§ 5534a.
Dual employment and pay during terminal leave
from uniformed services
A member of a uniformed service who has performed active service
and who is on terminal leave pending separation from, or release
from active duty in, that service under honorable conditions may
accept a civilian office or position in the Government of the United
States, its territories or possessions, or the government of the District
of Columbia, and he is entitled to receive the pay of that office or
position in addition to pay and allowances from the uniformed service
for the unexpired portion of the terminal leave. Added Pub.L. 90-83,
§ (22), Sept. 11, 1967, 81 Stat. 199.
Historical and Revision Notes
Reviser's Note. This section amends section is based on subsections (a) 120
chapter 55 of title 5, United States Code, (f) of former : U.S.C. Gla-1 the sour "
by inserting a new section 5534a. This statute for which (act of No: 21, 142
126
FORD
GERALD
LIBRARY
(h. 55
PAY ADMINISTRATION
5 § 5535
rh. 189. 30 Stat. 581) was repealed by the
Oct. 10. 1963. 45 Comp.Gen. 1011.
!"E of September C. 1003, Public Law
In of the foregoing. it Is
with (see. S. 50 Stat. 6501. Senate 1:--
that subjection (2) of former : E.S.C.
: tt ISSO, Sech Congress, section session,
State bad prospective effect and street
pass 413, 511, explains that the source
have been receasted in title ;, U.S.C. 65
terms was repoated since it had brea
Public Law 80-501.
readered obsolete by section 4(c) of the
In section 5504a, the words "In member
Armed Forces Leave Act of 1010. as
of 2 uniformed service who has MR
emended (ST U.S.C. 501), and section
formed active service" are substituted for
213(c) of the Public Health Service Act,
"Ass person, who, shall have performed
:- added August 0. 1000 (ch. 654, see. 2,
active service in the Armed Forces" :-
1.1 Stat. 420, 42 U.S.C. 210-1(c)), and
conform to the style of title 5 and the
that any existing rights are preserved by
definition of "uniformed services" in 5
section S of Public Law SQ-534.
U.S.C. 2101 which is coextensive with the
At the time of enactment of the net of
definition of "armed forces" in subsec-
November 21, 1015, there was no author-
tion (f) of former 5 U.S.C. 6ic-1. Rear-
ry to make lump-sum leave payments to
ganization Plan No. 2 of ITS (73 State
members of the uniformed services who
1315), effective July 13, 1045, consolidated
were being separated from or released
the Coast and Geoderic Survey and the
from active duty in the uniformed serv-
Weather Bureau to form a Rew
:rs. Accordingly. they were placed on
in the Department of Commerce to le
terminal leave until the expiration of the
known as the Environmental Science
nussued portion of their accumulated
Services Administration. The words
204 current accrued leave. and only then
"subsequent to May 1, 1040" are omitted
separated or released. The act of No-
as executed. The word "territories" is
rember 21, 1045, in part. authorized the
substituted for "Territories" inasmueh as
employment of these members during ter-
there now are no incorporated territories.
minal leave and provided they were enti-
The words "(including any corporation
04 to receive, in addition to ::e pay-
created under authority of an act of
ment from the employment. military pay
Congress which is either wholly CARE
and allowances for the unexpired portion
trolled or wholly owned by the Govern-
..? the terminal leave. The Armed Forces
ment of the United States. or any Ce
Leave Act of 1916 authorized lump-sum
partment. agency. or establishment there-
have payments of unused accumulated
of, whether or not the employees thereof
and current accrued leave. Generally.
are paid from funds appropriated by
thereafter, members of the uniformed
Congress) are omitted as included in ":I
services were not placed on terminal
civilian office or position in the Govern-
"wo but were separated and paid a
ment of the United States". The word
Comp-sum leave payment. However, in
"ray" is substituted for "compensation".
retain instances a member may be
Effective Date. Section effective Sent
: and on terminal leave. Such a case
6. 1006. for all purposes. see section 9(5)
was considered recently by the Comptrol-
of Pub.L. 20-S3, set out as a note under
:-: General of the United States (see
section 5102 of this title.
$ 5535.
Extra pay for details prohibited
(a) An officer may not receive pay in addition to the pay for his
crular office for performing the duties of a vacant office as author-
by sections 3345-3347 of this title.
b) An employee may not receive-
(1) additional pay or allowances for performing the duties of
another employee; OK
(2) pay in addition to the regular pay received for employment
held before his appointment or designation as acting for or in-
stead of an occupant of another position or employment.
This subsection does not prevent a regular and permanent appoint-
by promotion from a lower to a higher grade of employment.
FORD
89-554, Sept. 6, 1966, 80 Stat. 484.
127
GERALD
LIBRARY
THE WHITE HOUSE
WASHINGTON
November 6, 1975
MEMORANDUM FOR:
JACK MARSH
FROM:
PHIL BUCHEN
SUBJECT:
Assistant to the President for
National Security Affairs
This is to advice that an appointment by the President of an
Assistant for National Security Affairs is not subject to Senate
advise and consent. Statutory foundation for the National
Security Council is found in 50 U.S.C. Sec. 402. The Council
is composed of the President, the Vice President, certain
members of the Cabinet and other officials of the Federal
intelligence community. The statute also provides that the
Council shall have a staff to be headed by a civilian Executive
Secretary who shall be appointed by the President and for the
employment of such additional personnel, subject to the Civil
Service Commission laws, as may be necessary to perform
the duties of the Council.
Secretary Kissinger and his predecessors in the position of
Assistant to the President for National Security Affairs did not
serve in any position authorized by the organic act creating
the National Security Council. Traditionally, this position
has had its legal foundation in 3 U.S. C. 105 and 106 which
authorize the appointments of a limited number of Executive
Level II assistants on the immediate staff of the President.
The National Security Adviser's traditional function as head of
the staff of the National Security Council does not have a
statutory footing. It is therefore clear that General Scowcroft's
appointment is not subject to Senate advice and consent.
Attached is a copy of a recent memorandum which I provided
to General Scowcroft which notes that his retirement at the
grade of Lieutenant General, prior to any appointment as
Assistant to the President for National Security Affairs, would
require Presidéntial approval and the advise and consent of
the Senate in accordance with 10 U.S.C. 8962. This does not FORD
apply to retirement at any rank below that of Lieutenant General. GERALE
LIBRARY
- 2 -
Procedures required by Section 8962 were followed when
General Haig resigned his position as Deputy Assistant to
the President for National Security Affairs and became Chief
of the White House Staff during the Nixon Administration.
It might be that Chairman Stennis' inquiry relating to the
necessity of Senate confirmation for General Scowcroft was
based on his recollection of the Haig retirement.
Attachment
FORD & LIBRARY GERALD
THE WHITE HOUSE
WASHINGTON
November 4, 1975
MEMORANDUM FOR:
GENERAL SCOWCROFT
FROM:
PHILIP BUCHEN
SUBJECT:
Assumption of the Duties of
Assistant to the President for
National Security Affairs
This is to present my recommendation that, prior to your
retirement from the Air Force, you should refrain from
assuming the office or exercising the functions currently
held by Secretary Kissinger in his capacity as Assistant to
the President for National Security Affairs.
Legal Constraints
10 U.S.C. 973(b) derives from the Act of July 15, 1870,
ch. 294 §18, 16 Stat. 319. As most recently amended and
recodified, it reads:
* * *
"(b) Except as otherwise provided by law, no
officer on the active list of the Regular Army,
Regular Navy, Regular Air Force, Regular
Marine Corps, or Regular Coast Guard may
hold a civil office by election or appointment,
whether under the United States, a Territory
or possession, or a State. The acceptance of
such a civil office or the exercise of its
functions by such an officer terminates his
military appointment. "
FORD it LIBRARY GERALD
* * *
10 U.S.C. $8911, in pertinent part, provides that the Secretary
of the Air Force 11
may, upon the officer's request, retire
a regular or reserve commissioned officer of the Air Force who
has at least 20 years of service
"
Thus, if the exercise of your new duties as the successor to
Secretary Kissinger in his capacity as Assistant to the President
would constitute a "civil office" within the meaning of 10 U.S.C.
973(b), your acceptance of such appointment or exercise of
the functions of such office would have the effect of automatically
terminating your military employment. Moreover, it would
appear that such a termination would also have the effect of
making you ineligible for military retirement benefits to which
you would otherwise be entitled under 10 U.S.C. $8911.
Discussion
The term "civil office" as used in 10 U.S.C. 973(b) and
predecessor statutes has not been statutorily defined. It is a
term of variable meaning, the connotation of which changes
with the context in which it is used. Morganthau v. Barrett,
108 F. 2d 481, 483 (D. C. Cir. 1939). The meaning to be given
the term when used in a statute should be that which will
effectuate the purposes of the statute being construed. See,
e.g., Pardon V. Puerto Rico ex rel. Castro, 142 F. 2d 508,
510 (1st Cir. 1944).
From the debate on the floor of the Senate in 1870 regarding
the antecedent of section 973(b), it appears that the primary
concern of the Congress was the exercise of civil authority by
military officers. CONG. GLOBE, 41st Cong., 2d Sess.
3393-3404 (1870). To this end, the Congress sought to prevent
"the union of the civil and the military authority in the same
hands, " id. at 3401, in part because it was concerned that a
military officer exercising such authority would be subject to
the commands of his military superiors. The Congress did
not intend to prevent civilian officials from seeking advice or
administrative assistance from military officers. See, id.
at 3403 (remarks of Sen. Trumbull).
The Comptroller General has consistently required that the
following three criteria must be present to constitute such a
"civil office":
FORD & LIBRARI 0ERALD
- 3 -
The specific position must be created by law,
there must be certain definite duties imposed
by law on the incumbent, and they must
involve the exercise of some portion of the
sovereign power [44 Comp. Gen. 830,
832 (1965)].
* *
An application of these criteria to the facts in the instant case
leads to the following conclusions.
First, it appears that your position as Assistant to the President
for National Security Affairs would be one "created by law". For
at least the last 15-20 years, the position of national security
adviser has been one on the immediate staff of the President
under 3 U.S.C. $106. Additionally, your de facto function would
involve management of the staff of the National Security Council,
created by 50 U.S.C. 8402.
Second, it also appears that the position would include "certain
definite duties imposed by law on the incumbent", viz. "
such duties as the President may prescribe. " (3 U.S.C. §106)
Third, and most importantly, the position likely would be held
to "involve the exercise of some portion of the sovereign power. "
Given the concerns of the drafters of 10 U.S.C. §973(b) for
civilian independence from military authority, this would seem
to be the most important touchstone of the three under discussion.
3 U.S.C. §107 provides authority for the detail of military
officers to the White House in order to provide advice on military
matters or administrative assistance. This authority has
traditionally been asserted as a basis for the detail of officers
for service as White House military aides and for the detail
of a Deputy Assistant to the President for National Security
Affairs. In these instances, the theory is that such detailees
are limited to providing administrative support or advice
limited to military matters. On the other hand, the President
principal national security adviser has traditionally been
responsible for eliminating or minimizing differences of
opinion between the Departments of State and Defense and other
RALD LIBRARY
- 4 -
interested agencies, with a right of direct access to the
President.
Recommendation
The Attorney General and the Acting General Counsel of the
Department of Defense agree with my conclusion that, given
the substantial risks involved, i.e. loss of your military
retirement and other military privileges, you are best
advised to resign your commission in the Air Force prior to the
acceptance of an appointment as Assistant to the President for
National Security Affairs or the assumption of any duties of
that office.
In closing, I should also note that retirement at the grade of
Lieutenant General would require Presidential approval and
the advice and consent of the Senate [10 U.S.C. 8962]. This
does not apply to retirement at any rank below that of Lieutenant
General.
#
FORD i LIBRARY GERALD
THE WHITE HOUSE
WASHINGTON
November 5, 1975
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
SUBJECT:
JACK Senator MARSH July
I met with Senator Stennis this afternoon and he was of the
impression that the National Security Council post, which
involves Brent, was made a confirmable position by changing
the law sometime within the last two years.
He asked me if I would check on this for him.
I would appreciate your looking into this.
FORD : LIBRARY PERALD
Scoucept
Inv. Regretted
Thursday 11/20/75
11/20/75
6:30 p.m. m.
6:15 You were invited to Gen. Scowcroft's "signing ceremony"
at 6:30 p.m. P. Sorry they couldn't have given more
notice but it was the first opportunity the General had.
Told them we knew you were sorry you couldn't be there.
FORD is LIBRARY 078870
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WASHINGTON
February 24, 1976
John
MEMORANDUM FOR:
JACK MARSH
THROUGH:
PHIL BUCHEN
P.
FROM:
KEN LAZARUS P
In response to your inquiry of February 17, this is to advise that
we see no objection to your acceptance of a position on the Board
of Visitors at Virginia State College. However, we would suggest
the inclusion of a statement in your letter of acceptance along the
following lines:
*****
"Although I may be compelled to rescuse myself from
certain individual matters which may come before the
Board from time to time based on my responsibilities
in government, I trust that these instances will be few
in number and will not affect my ability to be of some
service to the school. "
*****
Such a caveat would recognize that you would be precluded from
participating as a Board member in matters requiring Federal
government action. Additionally, in your role as a government
official you should avoid participating personally and substantially
in matters directly affecting the college, e.g., a government
grant to the institution.
I trust this satisfies your inquiry.
FORD : 033470 LIBRARY
THE WHITE HOUSE
WASHINGTON
February 17, 1976
MEMORANDUM FOR: PHIL BUCHEN
FROM:
JACK MARSI July
I have been asked about the possibility my availability to
serve on the Board of Visitors at a State College in Virginia.
Is there any problem in connection with this?
Many thanks.
FORD is LIBRARY GERALD