Ask the Scholar

{
    "localId": "4520749",
    "label": "Personnel - White House Appointment of Military Personnel to Staff",
    "core": "doc",
    "dtoType": "document",
    "citationUrl": "https://catalog.archives.gov/id/4520749"
}

{
    "id": "4520749",
    "sourceUrl": "https://catalog.archives.gov/id/4520749",
    "contentType": "document",
    "title": "Personnel - White House Appointment of Military Personnel to Staff",
    "description": "This file contains material relates to Alexander Haig and Brent Scowcroft.",
    "citationUrl": "https://catalog.archives.gov/id/4520749",
    "collections": [
        "Philip W. Buchen Files",
        "Philip Buchen's General Subject Files"
    ],
    "subjects": [
        "Presidential appointments",
        "Soldiers",
        "Employees"
    ],
    "iiifBase": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/ford/grf-0019/574067/Batch0002/38-0019-f-4520749.pdf",
    "thumbnailUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/ford/grf-0019/574067/Batch0002/38-0019-f-4520749.pdf",
    "largeImageUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/ford/grf-0019/574067/Batch0002/38-0019-f-4520749.pdf",
    "imageCount": 1,
    "hasImages": true,
    "source": "import",
    "hasTranscription": false
}

{
    "url": "https://catalog.archives.gov/id/4520749",
    "naId": 4520749,
    "coverageEndDate": {
        "logicalDate": "1976-02-01",
        "month": 2,
        "year": 1976
    },
    "coverageStartDate": {
        "logicalDate": "1973-05-01",
        "month": 5,
        "year": 1973
    },
    "levelOfDescription": "fileUnit",
    "recordType": "description",
    "ocrSource": "nara-archive"
}

{
    "seq": 1,
    "pageIndex": 0,
    "type": "document",
    "url": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/ford/grf-0019/574067/Batch0002/38-0019-f-4520749.pdf",
    "mediaId": "4ca7f818d8e4a5cd",
    "ocrText": "The original documents are located in Box 41, folder \"Personnel - White House\nAppointment of Military Personnel to Staff\" of the Philip Buchen Files at the Gerald R.\nFord Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\nDigitized from Box 41 of the Philip Buchen Files at the Gerald R. Ford Presidential Library\nMay 29, 1973\nMonorable John E. Moss\nHouse of Representatives\nWashington, D. C. 20515\nDear Mr. Moss:\nThis refers to your telephone call to me on May 24, 1973 regarding\nprecedents for the assignment of General Alexander M. Haig to the\nOffice of the President.\nGeneral Haig is but the latest of senior military officers who have, over\nthe years, been detailed by the President to perform a wide range of\nduties in the Office of the President. For examples, Admiral Leahy\nserved from 1942 to 1949 as Chief of Staff to the Commander-in-Chief,\nthen President Roosevelt. Major General Wilton B. Persons, USA,\nRetired, served President Eisenhower as Chief of the White House Staff.\nBrigadier General Andrew Goodpaster served President Eisenhower as\nStaff Secretary. General Maxwell Taylor served President Kennedy as\nMilitary Adviser to the President. In addition there have been in the\npast, and are at the present time, military personnel serving specifically\nas Military Aides to the President.\nI hope the foregoing observations will be helpful to you in considering the\nstatus of General Haig.\nSincerely yours,\n(Signad) &\nFORD i LIBRARY GERALD\nL. Niederlehner\nActing General Counsel\ncc: LA\nPA\nOSD Files\nCoordination:\nReading\nASD (LA) 15F\nASD (PA)\nJF\nCOMPLETE\nCOMPTROLLER GENERAL OF THE UNITED STATES\n3111\nSIATED\nWASHINGTON, D.C. 20548\nUNITED\nB-150136\nFebruary 7, 1974\nThe Honorable\nThe Secretary of Defense\nDear Mr. Secretary:\nIn view of 10 U.S.C. 973(b) questions have arisen as to the\npropriety of General Alexander M. Haig, Jr., USA, 195-12-3625,\nserving as Assistant to the President while he was an officer\n(0-10) on the active list of the Regular Army and Vice Chief of\nStaff of the Army, during the period from about May 4, 1973, until\nhis retirement from the Army on August 1, 1973. Since the payment\nof active duty pay and allowances and retired pay to General Haig\nis involved, the matter is of concern to this Office.\nThe announcement of General Haig's appointment as Assistant to\nthe President made on May 4, 1973, by White House Press Secretary\nRonald L. Ziegler states as follows:\n\"President Nixon has asked me to announce today the\ninterim appointment of General Alexander M. Haig, Jr.,\ncurrently the Vice Chief of Staff of the Army, to be an\nAssistant to the President.\n\"In this role, General Haig will assume many of\nthe responsibilities formerly held by H. R. Haldeman.\nThese responsibilities include coordination of the\nwork of the White House Staff and administration of\nthe immediate Office of the President. General Haig\nwill assume these responsibilities immediately.\n\"During the past years, the President has worked\nclosely with General Haig, who served in the key\nposition of Deputy Assistant to the President for\nNational Security Affairs and as Deputy to\nDr. Kissinger. General Haig consulted closely with\nthe President on national security matters and under-\ntook a number of missions on the President's behalf in\nrelation to the agreement to end the war in Vietnam.\nFORD : LIBRARY QERVLI\nhi- mg.\n2763\nB-150136\n\"President Nixon values General Haig's experience\nand integrity, and has confidence in his proven\nabilities as an excellent administrator.\"\nSee Weekly Compilation of Presidential Documents, Monday, May 7,\n1973, Volume 9, Number 18, page 450.\nAlso, on May 10, 1973, in announcing other appointments and\nchanges in the Administration, Press Secretary Ziegler stated in part\nas follows:\n\"Also, this morning the President again referred to\nthe fact that he had appointed Alexander Haig to fill\nthe interim role which Bob Haldeman previously filled as\nAssistant to the President and that Alexander Haig would\nbe continuing in this position for the immediate future.\"\nSee Weekly Compilation of Presidential Documents, Monday, May 14, 1973,\nVolume 9, Number 19, pages 661, 662.\nAs a result of a congressional inquiry concerning this matter, in\nMay 1973 we informally contacted members of the White House staff to\nobtain further information concerning the duties of General Haig's\nposition at the White House and the legal authority for his appoint-\nment. We were told that legal advice from the Department of Defense\nhad been relied upon in assigning General Haig and we were referred to\nan official in the Department of Defense General Counsel's office.\nThe Department of Defense official advised us that General Haig\nwas assigned on an \"interim\" basis to the President's staff, but\ncontinued to receive only his pay and allowances as a general and\nVice Chief of Staff of the Army. The official said that General Haig's\nduties were such as may be assigned by the President as Commander-in-\nChief, but were not the defined duties of any particular office. He\nalso said that General Haig had not been appointed as one of the\nassistants to the President authorized by 3 U.S.C. 106, and that\nGeneral Haig's duties more nearly resembled the duties of Chief of\nStaff to the President, a position authorized under 10 U.S.C. 3531 to\nbe filled by a general officer of the Army appointed by the President,\nby and with the advice and consent of the Senate.\nHowever, since General Haig was assigned as Assistant to the\nPresident only on an interim basis, the Department of Defense official\ni\nFORD\n- 2 -\nGERALD.R.\nGERALD.\nLIBRARY\nof\nB-150136\nsaid that General Haig was not considered to have been assigned to\nthe position of Chief of Staff to the President, and it was not known\nhow long his assignment might continue. That official did agree,\nhowever, that if General Haig should continue indefinitely in his\nWhite House position there could arise the question of whether his\nname should be submitted to the Senate for confirmation as provided\nby 10 U.S.C. 3531.\nThe Department of Defense official also expressed the opinion\nthat as Commander-in-Chief, the President had ample authority to assign\nGeneral Haig to his White House position and such duties as he sees\nfit, on an interim basis, and that it was not an assignment to an\noffice within the contemplation of 10 U.S.C. 973(b).\nWe note, however, that Mr. Ziegler's press announcements state\nthat General Haig in his position as Assistant to the President would\n\"assume many of the responsibilities formerly held by H. R. Haldeman\"\nand that the President had \"appointed Alexander Haig to fill the\ninterim role which Bob Haldeman previously filled as Assistant to\nthe President.\"\nSubsequently, an announcement dated June 6, 1973, was released\nby the Office of the White House Press Secretary which stated in\npertinent part as follows:\n\"The President today made three announcements relating\nto the senior staff of the White House:\n\"General Alexander M. Haig, Jr. will retire from active\nduty in the Army effective August 1, 1973, and will be\nappointed Assistant to the President. In this capacity\nGeneral Haig will continue to exercise the same general\nresponsibilities he has held since rejoining the White\nHouse staff on an interim basis in May. These include\ncoordination and supervision of the day-to-day operations\nand responsibilities of the White House staff.\" (Emphasis\nadded.)\nIn view of the June 6 announcement along with the previous White\nHouse announcements of May 7 and 10, 1973, it appears that General Haig\nas Assistant to the President was performing essentially the duties\n- 3 -\nFORD : LIBRARY 0ERALD\nB-150136\nwhich Mr. Haldeman exercised while occupying the position of Assistant\nto the President. Mr. Haldeman's position was one of six such posi-\ntions authorized by 3 U.S.C. 106 which provides as follows:\n\"The President is authorized to appoint not to\nexceed six administrative assistants and to fix their\ncompensation in accordance with section 105 of this\ntitle. Each admínistrative assistant shall perform\nsuch duties as the President may prescribe.\"\nSection 105 of title 3, United States Code, authorizes the President\nto fix the compensation of, among others, the six administrative assis-\ntants authorized by section 106 at rates of basic compensation not to\nexceed that of Jevel II of the Federal Executive Salary Schedule. We\nunderstand Mr. Haldeman was compensated at the level II rate of pay.\nSection 973(b) of title 10, United States Code, provides as\nfollows:\n\"(b) Except as otherwise provided by law, no\nofficer on the active list of the Regular Army,\nRegular Navy, Regular Air Force, Regular Marine Corps,\nor Regular Coast Guard may hold a civil office by\nelection or appointment, whether under the United\nStates, a Territory or possession, or a State. The\nacceptance of such a civil office or the exercise of\nits functions by such an officer terminates his\nmilitary appointment.\"\nTo determine whether General Haig as an officer on the active list\nof the Regular Army was in violation of section 973(b) while serving\nas Assistant to the President prior to his retirement from the Army, it\nis necessary to determine whether that position is a \"civil office\"\nwithin the meaning of that section, and, if so, whether there is\nauthority \"otherwise provided by law\" as prescribed in section 973(b)\nfor him to occupy that position.\nThe term \"civil office\" as used in 10 U.S.C. 973(b) and\npredecessor statutes has not been statutorily defined. In 13 Op. Atty.\nGen. 310 (1870), an opinion issued shortly after the original statute\nwas enacted from which 10 U.S.C. 973(b) was derived, the Attorney\nGeneral of the United States held that General George C. Meade, a\n- 4 -\ni\nFORD\nGERALD\nLIBRARY\nB-150136\nRegular Army Officer, could not exercise the functions of a park\ncommissioner of the City of Philadelphia without vacating his military\ncommission. The Attorney General indicated that the office of park\ncommissioner had been established by an act of the state legislature,\nwhich act designated the mode of appointment, the term of office, and\nthe functions to be performed which functions were of a civil nature\nand would fall within any authorized definition of an office. The\nopinion also noted that the act provided that \"they shall receive no\ncompensation for their services.' In addition the Attorney General\npointed out that the manifest purpose of Congress in enacting the\nprohibition against Regular Army officers serving in civil offices\nwas to disencumber them \"of every species of official duty not belonging\nto their military profession.\" See also in this regard 35 Op. Atty.\nGen. 187, 190 (1927) wherein the Attorney General stated that the purpose\nof the statute was to prevent an officer of the Army from accepting any\noffice the duties of which will substantially interfere with the\nperformance of his duties as an officer of the Army.\nIn 1873 the Attorney General held that General William T. Sherman\ncould not act as Secretary of War, even temporarily, without vacating\nhis commission as General of the Army. See 14 Op. Atty. Gen. 200\n(1873).\nThe Attorney General in 18 Op. Atty. Gen. 11 (1884) has also held\nthat notwithstanding the gravity of the penalty inflicted by the\nstatute (10 U.S.C. 973(b)), the policy of the statute points to a\nvery liberal interpretation of the phrase \"civil office\" so as to\ninclude a position on a \"board of experts\" established by a Philadelphia\ncity ordinance to, in effect, advise the city councils on the paving of\nthe city's streets.\nIn our decision at 29 Comp. Gen. 363 (1950) we concluded that\nthe term \"civil office,\" as distinguished from \"military office,\" is\nsynonymous with \"public office\" and is usually defined in much the\nsame terms. We quoted judicial. authority to the effect that the chief\nelements of a public office are: the specific position must be created\nby law; there must be certain duties imposed by law on the incumbent,\nand they must involve the exercise of some portion of the sovereign\npower.\nIn our decision at 44 Comp. Gen. 830 (1965) we held that a Regular\nArmy officer, participating in an excess leave program attending law\nschool, who accepted a temporary appointment as a special policeman\n- 5 -\nFORD is LIBRARY 038870\nB-150136\nin the Library of Congress terminated his commission. We further\nheld that since the positions of special police appointed by the\nLibrarian of Congress were created by a statute which defines their\nduties and that such police exercise some of the powers of the\nsovereign, the acceptance of such a position was the acceptance of\na civil office.\nIn that decision we also stated that the fact that the\nappointment to perform the statutory duties of an office may be\ntemporary provides no basis for determining that a position is not\na \"civil office.\" We also held that the fact that the officer may\nbe on excess leave provides no basis for viewing his acceptance of the\nposition of special policeman as not terminating his appointment as an\nofficer in the Regular Army since, quoting from 25 Comp. Gen. 377, 381\n(1945), \"The statute makes the two positions incompatible as a matter\nof law, without qualification and without regard to any showing of\ncompatibility in fact by reason of leave of absence, or otherwise,\nwith respect to a particular officer and a particular position.\" See\nalso 25 Comp. Cen. 38, 41 (1945). We find nothing in 44 Comp. Gen.\n830 which would support the view that General Haig's initial assign-\nment and duties did not meet the criteria for a civil office as\ndiscussed in that decision.\nThe position of Assistant to the President previously held by\nMr. Haldeman and now held by General Haig is one specifically created\nby law (3 U.S.C. 106) which law provides that the duties of the posi-\ntion shall be as prescribed by the President. It also has a statutorily\ndescribed salary (3 U.S.C. 105). It is our view that such position\nmeets the criteria for a civil office within the meaning of. 10 U.S.C.\n973(b) as construed in the above-cited opinions of the Attorney General\nand the Comptroller General.\nWe have previously taken no action in this matter since the\nmatter was the subject of litigation in Alan B. Morrison V. Howard H.\nCallaway, Secretary of the Army and Alexander M. Haig, Jr., Assistant\nto the President, Civil Action No. 1108-73, which was filed June 6,\n1973, in the United States District Court for the District of Columbia.\nThat suit was dismissed by the court on January 8, 1974, on the ground\nthat the plaintiff lacked standing. The court did not reach the issue\nof whether General Haig held a civil office within the purview of\n10 U.S.C. 973(b), so as to terminate his military commission.\n- 6 -\nFORD is LIBRARY 9ERALD\nB-150136\nIn view of the precedents set out above and the reported factual\nsituation concerning General Haig's functions and duties at the White\nHouse, we have tentatively concluded that when he began to exercise\nthose functions and duties on or about May 4, 1973, he occupied a\ncivil office and that his military appointment terminated by opera-\ntion of law under 10 U.S.C. 973(b). In addition with the termination\nof his military appointment he would not appear to have been a\n\"commissioned officer of the Army\" under 10 U.S.C. 3911, the law under\nwhich we understand he retired on July 31, 1973. This of course brings\ninto question the legality of the payment to General Haig of active\nduty pay and allowances during the period May 4 to July 31, 1973, and\nretired pay from and after August 1, 1973. We are now giving considera-\ntion to taking exceptions to such payments. However, before doing so\nwe would like an expression of your views in this matter.\nAn early reply will be appreciated.\nFerres Sincerely yours, R. Atach\nComptroller General\nof the United States\n- 7 -\nFORD is LIBRARY 03RALD\nDEPARTMENT OF THE ARMY\nOFFICE OF THE GENERAL COUNSEL\nWASHINGTON, D.C. 20310\n22 April 1974\nHonorable Elmer Staats\nComptroller General of the United States\nWashington, D. C. 20548\nRe: General Alexander M. Haig, Jr.,\nUnited States Army (retired); Your\nLetter of February 7, 1974, No.\nB-150136\nDear Mr. Comptroller General:\nI have been asked to respond on behalf of the Department of\nDefense to your letter of February 7, 1974, to the Secretary of\nDefense. That letter concerns the applicability of 10 U. S.C.\n§ 973(b) (1970), to the service from May ÷ through August 1, 1973,\nof General Alexander M. Haig, Jr., United States Army (retired),\non the White House staff. Your letter tentatively concludes\nthat when he [ General Haig] began to exercise those\nfunctions and duties on or about May 4, 1973, he\noccupied a civil office and that his military appointment\nterminated by operation of law under 10 U.S.C. 973(b).\nIn addition with the termination of his military appoint-\nment he would not appear to have been a \"commissioned\nofficer of the Army\" under 10 U.S.C. 3911, the law\nunder which we understand he retired on July 31, 1973.\nBefore discussing the views of the Department, permit me\nto set out the correct, verifiable facts of the case. You will\nnote a substantial difference between that which follows and\nthe statement of facts set out in your letter of February 7, 1974,\nwhich relied heavily on White House press releases concerning\nHaig's return to the White House. Those releases, insofar as\nHaig's employment status is concerned, were inaccurate in part\nand inartfully misleading in the whole.\nFORD\nStatement of Facts\nAfter serving for almost four years in the Office of the Presi-\ndent, first as Military Assistant to the President for National\nSecurity Affairs and subsequently as Deputy Assistant to the Presi-\ndent for National Security Affairs, General Alexander M. Haig, Jr.,\nreturned on January 4, 1973, to the Army staff, having been assigned\non that date as Vice Chief of Staff of the Army.\nOn April 30, 1973, the White House announced the resignation\nof two of the President's senior assistants: Messrs. H. R. Haldeman\nand John Ehrlichman. Because of his confidence in General Haig and\nbecause of his uncertainty as to the future roles of his personal staff,\non May 3, 1973, the President directed Haig to assist him temporarily\nwith the functioning of the White House staff in order to help fill the\nvoid left by the resignations. Haig complied with this or der and\nassumed his new duties the following day. Because the assignment\nwas a temporary one, id., Haig retained his assignment as Vice\nChief of Staff of the Army. He planned to return on a full-time\nbasis to his Army post at the conclusion of his temporary ser vice\nat the behest of the President.\nDuring the period May 4 through July 31, Haig pe rformed\nfor the President duties essentially of an administrative nature.\nRepresentative examples of Haig's duties included coordinating\ndissemination of presidential directives, insuring receipt by the\nPresident of information necessary for decision making, coordinating\nstaff actions, and supervising the operation of the White House staff.\nThese functions correspond to some extent, but not entirely, with\nthose previously performed by H. R. Haldeman. However, Haig\ndid not assume Haldeman's position, which remained vacant.\nAfter the lapse of some time, the President and General Haig\nagreed that Haig's services would be required for a longer period\nthan had originally been anticipated and that his role should be\nexpanded to include a more substantive, policy-oriented area of\nresponsibility. General Haig immediately took steps to be retired\n2\nFORD LIBRARY\nfrom the Army. He chose August 1, 1973, as the effective date\nof his retirement to allow time for administrative processing\nand Senate confirmation of his retirement request, for moving\nto civilian quarters, and for the transfer of authority to his\nsuccessor as Vice Chief of Staff of the Army.\nOn June 14, 1973, the President nominated General Haig\nfor retirement and on July 14, 1973, the Senate duly voted its\nadvice and consent. See 119 CONG. REC. S13516 (daily ed.\nJuly 14, 1973). General Haig retired on July 31, and his name\nwas placed on the retired list on August 1, 1973. On the latter\ndate, the President for the first time appointed Haig an Assistant\nto the President, under title 3 of the United States Code, and\nHaig for the first time took an oath of office, received a presidential\ncommission, and was placed on the White House payroll by salary\norder.\nDiscussion\n10 U.S.C. § 973(b) (1970), derives from the Act of July 15,\n1870, ch. 294 § 18, 16 Stat. 319. As most recently amended and\nrecodified, see Act of Jan. 2, 1968, Pub. L. No. 90-235, 4(a)\n(5)(A), 81 Stat. 759, it reads:\nExcept as otherwise provided by law, no officer\non the active list of the Regular Army, Regular Navy,\nRegular Air Force, Regular Marine Corps, or Regular\nCoast Guard may hold a civil office by election or appoint-\nment, whether under the United States, a Territory or\npossession, or a State. The acceptance of such a civil\noffice or the exercise of its functions by such an officer\nterminates his military appointment.\nBased upon the facts outlined above, the Department of\nDefense concludes that at no time prior to his retirement did\nGeneral Haig either accept any civil office within the meaning\nof the quoted statute, nor did he exercise the functions of any\nsuch office. We further conclude that there is statutory authority\nfor the type of service which General Haig rendered during the\nperiod in question. Lastly, we conclude that even if section 973(b)\nis applied to General Haig's performance of his duties, the de\nVONO\nfacto officer doctrine should foreclose any forfeiture.\n3\n1. General Haig Did Not, While An Officer Of The Regular\nArmy, Hold Any Civil Office By Election Or Appointment,\nNor Did He Exercise The Functions Thereof.\nThe term \"civil office\" is a term of variable meaning, the\nconnotation of which changes with the context in which it is used.\nMorganthau V. Barrett, 108 F. 2d 481, 483 (D. C. Cir. 1939).\nThe meaning to be given the term when used in a statute should be\nthat which will effectuate the purposes of the statute being construed.\nSee, e. g., Pardon V. Puerto Rico ex rel. Castro, 142 F. 2d 508,\n510 (1st Cir. 1944).\nFrom the debate on the floor of the Senate in 1870 regarding\nthe antecedent of section 973(b), it appears that the primary concern\nof the Congress was the exercise of civil authority by military\nofficers. CONG. GLOBE, 41st Cong., 2d Sess. 3393-3404 (1870).\nTo this end, the Congress sought to prevent \"the union of the civil\nand the military authority in the same hands, \" id. at 3401, in part\nbecause it was concerned that a military officer exercising such\nauthority would be subject to the commands of his military superiors.\nThe Congress did not intend to prevent civilian officials from seeking\nadvice or administrative assistance from military officers. See id.\nat 3403 (remarks of Sen. Trumbull).\nPast Comptrollers General, in interpreting section 973(b),\nhave consistently ruled that in order to constitute a \"civil office\"\nwithin the meaning of that section, a position must fall within the\ndefinition of an \"office\" developed by the Comptroller of the Treasury\nin 4 COMP. DEC. 696 (1898). See, e.g., 25 COMP. GEN. 377, 383-\n85 (1945). In that opinion, the Comptroller described the fundamental\nelements of an office:\nThe exercise of a function of government is clearly\nan attribute of a public office. When it is considered\nwhat the functions of government are, and how they are\nadministered, this attribute is seen to be fundamental.\nThe chief functions of government are to make laws,\nto execute them, and to administer justice. Under\nour system of government there can be no laws enacted\nor executed, nor justice administered, except by pe rsons\nauthorized by law to perform those functions. Not one\n?\nFORD\nGERALD\n4\nof the powers of the Government can be legally exercised\nuntil authority has been granted by law for the purpose.\nIn accordance with this view, an office may be defined\nas authority to exercise a function of government.\n4 COMF. DEC. 696, 701 (1898).\nApplying this definition, both you, e.g., 44 COMP. GEN. 830\n(1965), and The Judge Advocate General of the Army, e.g., JAGA\n1968/4441, Sept. 9, 1968, have consistently required that the\nposition possess the formal attributes of a public office.\nThe specific position must be created by law; there\nmust be certain definite duties imposed by law on\nthe incumbent, and they must involve the exercise\nof some portion of the sovereign power.\n44 COMP. GEN. at 832; cf. United States V. Hartwell, 73 U.S. (6\nWall.) 385, 393 (1868). IT State courts applying provisions in their\n1/ A contrary definition sometimes, compare 35 OP. ATT'Y GEN.\n187, 190 (1927), with 13 OP. ATT'Y GEN. 310 (1870), relied on\nby the Attorney General is premised on a faulty reading of the\npurpose of the prohibition. The Attorney General has stated that\nin his view\n[w] hether a [position] is an office within the meaning of\n§ 1222, R.S., the predecessor of section 973(b)]\n...\ndepends largely on the extent of the work to be performed\nby the incumbent and the amount of time required to be\ndevoted to that service, the purpose being to prevent an\nofficer of the Army from accepting any office the duties\nof which will substantially interfere with the performance\nof his duties as an officer of the Army. 35 OP. ATT'Y\nGEN. at 190. The legislative history demonstrates,\nhowever, that Congress was concerned not with protecting\nmilitary officers from the demands of other duties but\nrather with preventing the exercise of civilian authority\nby military officers. See p. 4, supra. Moreover, the\nstatute's inapplicability to employment by the federal\ngovernment or by state government which does not rise\nto the level of an office and its inapplicability to positions\nof any kind in the private sector discredits the Attorney\nBERM D .FORD LIBRARY\nGeneral's interpretation. Presumably for these reasons,\nas well as a total lack of textual support, see 25 COMP.\nGEN. 377, 385 (1945), you have adhered to the sovereign\nfunctions test.\n5\nstate constitutions and codes similar to section 973(b) have also so\nconstrued the term. E.g., Martin v. Smith, 239 Wis. 314, 1 N.W.\n2d 163, 172 (1941).\nThe Court of Appeals for the Sixth Circuit in Pope V. Com-\nmissioner, 138 F. 2d 1006, 1009 (6th Cir. 1943), has elaborated\nin another context the applicable indices of a civil officer:\nThere must be a delegation of a portion of the\nsovereign powers of government to be exercised for\nthe benefit of the public\nThe duties must be performed independently and\nwithout control of a superior power other than the law.\nThe court in Pope also identified several other indicia, including\ncreation by positive law, a formal appointment, an oath of office,\nand a well-defined tenure. Id. See also 44 COMP. GEN. 830,\n832 (1965).\nAn examination of the facts in the instant case demonstrates\nthat General Haig did not occupy a civil office, as defined in these\ncriteria, during the period in question.\nFirst, assuming that General Haig did occupy the position of\nAssistant to the President created by 3 U.S.C. § 106 (1970), that\nposition is not a \"civil office\" within the meaning of the tests\ndescribed above.\nOne of the touchstones of a \"civil office, 11 see 44 COMP. GEN.\n830, 832 (1965), is the presence of \"certain definite duties imposed\nby law on the incumbent. \" 3 U.S.C. § 106 (1970), authorizes the\nPresident to appoint up to six administrative assistants and delegates\nto the President authority to define the duties of such assistants as\nhe may appoint. If the President delegates no functions or purely\nadministrative functions, it may well be that the position is more\nthat of a personal assistant than that of a civil officer. Indeed,\nthe President may, if he so chooses, never call on the incumbent\nto do anything. Cf. Letter from Assistant Att'y Gen., Office of\nLegal Counsel to The Judge Advocate General of the Air Force,\nOct. 7, 1971 (notary public not civil officer because he may never\nbe called upon to perform any duties). In any event, whatever the\nduties which a particular President may assign to those assistants\n6\nGEBALD FORD LIBRAS\nwhich he chooses to appoint, Congress cannot be said to have imposed\n\"certain definite duties\nby law on the incumbent. \"\nMore significantly, the position does not \"involve the exercise\nof some portion of the sovereign power, \" another of the applicable\ntouchstones. 44 COMP. GEN. at 832. As previously noted, see\np. 5, supra, \"sovereign power\" contemplates the authority to act\nlegislatively, administratively, or judicially with binding legal effect\nand without the need for approval by a higher power. Manifestly,\nGeneral Haig was in no position to legislate or to djudicate; and any\nexecutive function which he may have had was not committed by law\nto an Assistant to the President, assuming that he held such a\nposition, but would have been wholly derivative from the President.\nIn actuality, General Haig exercised none of these functions.\nHis only assignment was to perform certain administrative functions\nat the request of the President, to coordinate the work of the White\nHouse staff, and, perhaps, to discuss policy issues with the President.\nSee p. 2, supra. None of these is the function of a civil office, as\nopposed to the function of an agent. See 44 COMP. GEN. at 832; cf.\nCONG. GLOBE, 41st Cong., 2d Sess. 3403 (1870) (detail of officer\nto perform clerical duty). He made no final operational decisions;\nthat is, his duties were not \"performed independently and without\ncontrol of a superior power other than the law. \" Pope V. Com-\nmissioner, 138 F. 2d 1006, 1009 (6th Cir. 1943). Nor could the\nPresident have delegated governmental functions to him, since\n3 U.S.C. § 301 (1970), authorizes such delegations only to\nthe head of any department or agency in the\nexecutive branch, or any official thereof who is\nrequired to be appointed by and with the advice\nand consent of the Senate\nAn Assistant to the President falls into neither of these categories.\nAll final delegations of authority are required to be published\nin the Federal Register. See 3 U.S. C. § 301 (1970); 5 id. § 552(a).\nSince no delegations to the position of Assistant to the President\nheld by Mr. Haldeman appear in the Federal Register, no sovereign\nauthority has been delegated to that position. Therefore, the\nposition General Haig is alleged to have occupied is not a civil\noffice within the meaning of section 973(d).\n7\nSecond, from May 4 through July 31, 1973, General Haig\nserved the Government only as Army Vice Chief of Staff. He did\nnot become Assistant to the President until August 1, 1973. Prior\nto his retirement, General Haig neither held, nor exercised the\nfunctions of Mr. Haldeman's position within the meaning of section\n973(b).\nThe ordinary tests of when one holds an office supports this\nconclusion. No formal instrument appointing General Haig to the\nstatutory position of Assistant to the President or to any other\noffice outside the military was executed until that date. Cf. 1\nCOMP. GEN. 499, 503 (1922) (although a military officer could\nconceivably have served on military orders on Alaskan Engineering\nCommission without breaching § 973(b)'s predecessor, since he\nwas formally appointed by the President, military commission\nvacated.) Nor was there any other indicium of appointment.\nGeneral Haig had taken no oath of office. He had been given no\ntenure. Rather, General Haig was assisting the President only\nin a temporary capacity, until permanent arrangements for a\nsuccessor to Mr. Haldeman could be made. General Haig received\nno \"emoluments\" for his service; his only compensation was the\npay and allowances to which he was entitled as a general in the\nUnited States Army. Throughout his temporary assignment,\nGeneral Haig retained his military assignment as Vice Chief of\nStaff of the Army. Thus, General Haig did not occupy the position\nof Assistant to the President prior to August 1, 1973.\nThe characterization of General Haig's service as an \"appoint-\nment\" by Mr. Ronald Ziegler, then White House press secretary,\nupon which your letter of February 7 principally relies, should\nnot be determinative. Mr. Ziegler's imprecise use of the word\n\"appointment\" in the informal atmosphere of a press conference\nis without legal effect.\nAlthough he did not become Assistant to the President until\nAugust 1, General Haig did perform prior to that date some of the\nsame tasks as Mr. H. R. Haldeman had previously. That General\nHaig may have performed certain functions which some might deem\nnot purely \"military\" in nature, however that concept may be defined,\ndoes not mean that he exercised the functions of a civil office so\nlong as he performed them as part of his military duties under orders\n8\nthrough the chain of command. In enacting section 973(b)'s prede-\ncessor, Congress intended not to interfere with the so-called \"detail\nrule, 11 allowing a military officer to be detailed to another agency\nof the Government to perform certain duties civil in nature. When\nqueried about the limits placed by the proposed law on the President's\nauthority to detail officers, Senator Trumbull, one of the sponsors\nof the legislation, responded \"Anything that a detail covers this\nsection does not interfere with. 1! CONG. GLOBE, 41st Cong., 2d\nSess. 3403 (1870). To the further suggestion that \"performing the\nduties of a clerk, whether by detail or anything else, is fulfilling\nthe functions of a civil office, \" Senator Trumbull replied:\nNo, sir; to fulfill the functions of an office he must\nbe the officer. He must have the power of the officer if\nhe performs the functions of the office. I do not understand\nthat a person can fulfill the functions of a civil office unless\nhe holds the civil office. He must be the officer. That is\nthe meaning of this section as I understand it.\nId.\nThe detail rule was first relied upon in a reported opinion\nto approve the performance of civilian service by a military officer,\nnotwithstanding section 973(b)'s predecessor, by the Attorney\nGeneral just ten years after the statute's eñactments. In 16 OP.\nATT'Y GEN. 499 (1880), he ruled that a military officer could be\nassigned to duty in the United States Geological Survey, under the\nDepartment of the Interior, without contravening the statute. In\nwhat remains the classic statement of the rule, the Attorney\nGeneral concluded:\n[W]hile the service to which the officer might be\nassigned would be civil and lie within the sphere of\na civil office, if it were performed under the authority\nand in obedience to the orders of his military superior,\nand not as a duty which it was incumbent upon him to\nperform by reason of any relation to or connection\nwith the office, it could not be said that in thus per-\nforming the service he was exercising the functions\nof such civil office.\n2/\nIf one concludes that Assistant to the President is not a civil office,\none need not consider this point to conclude that the violation of\nsection 973(b) has not occurred.\nFORD\nGENALD\n9\nId. at 499-500. The Attorney General has consistently adhered to\nthis rule. See 20 OP. ATT'Y GEN. 604, 605-06 (1893) (detailed\nofficers \"do not, within the meaning of the Revised Statutes, hold\nany civil office\"); cf. 35 OP. ATT'Y GEN. 187, 188 (1927). The\nComptroller General has followed the lead of the Attorney General\nin adopting this construction of section 973(b). E. g., DEC. FIRST\nCOMP. 1893-1894, at 88, 92-93 (1893) (holding that military officers\ncould be detailed by the President to the Boundary Commission with-\nout vacating their commissions); see 25 COMP. GEN. 38, 40 (1945);\n1 COMP. GEN. 499 (1922); 4 COMP. DEC. 696, 701 (1898).\nThe detail need not be specifically authorized by statute. In\n29 COMP. GEN. 363, 365, 368-69 (1950), the Comptroller General\nruled, in the absence of any legislation specifically authorizing it,\nthat an Army officer could, without having his commission vacated,\nbe \"loaned or assigned to the Department of the Interior for a period\nof several years\" as Commissioner of Roads for Alaska, on the\nunderstanding that he \"has not executed an oath of office as such\ncommissioner and that he continues to draw the pay and allowances\nof a colonel in the Army, \" since none of the technical attributes of\n\"office\" were involved.\nThe judicial gloss given to section 973(b) in Johnston V. United\nStates, 175 F. 2d 612 (4th Cir. 1949), reflects approval of the detail\nrule. In Johnston, plaintiff had been detailed by his military superiors\nto duty as an assistant counsel to the National Recovery Administration.\nPlaintiff tried to recover from the United States the extra compensation\nto which he would have been entitled as an employee of the NRA,\narguing, inter alia, that his Army commission had been vacated by\noperation of law and that he was therefore entitled to pay as a de facto\nofficer of the NRA. The court rejected his claim, noting that\nRevised Statutes § 1222 [ now 10 U.S.C. § 973(b)]\nhas not generally been thought to apply where a military\nofficer has merely been detailed by his military superiors\nto duty with a civilian agency. 16 Op. Attys. [sic] Gen.\n499; Decisions of the First Comptroller 88, 93.\nId. at 618.\nThis rule is now embodied in section III. D. of Department of\nDefense Directive 1344. 10 (September 23, 1969), which provides:\nGERALD\n10\nCivil office is an office, not military in nature,\nthat involves the exercise of the powers of authority\nof civil government. It may be either an elective or\nan appointive office under the United States.\nThe term \"civil office\" shall not include offices\nto which military personnel may be assigned in a\nmilitary status.\nSuch a regulation, adopted by the agency most intimately involved\nwith the subject, is, of course, entitled to considerable respect.\nIn summary, General Haig occupied no office other than Vice\nChief of Staff of the Army until August 1, 1974; rather, he was\ndetailed to perform certain tasks for the President, within the\nscope of the administratively and judicially approved \"detail rule, \"\nnow embodied in departmental regulations.\nAs already noted, Congress, in enacting section 973(b), was\nconcerned with preventing the exercise of civilian authority by\nmilitary officers and not with the performance by military officers\nof administrative tasks normally performed by civilians. For\nthis reason, in applying section 973(b), a \"civil office\" is identified\nby its occupant's authority to exercise sovereign functions. The\nperformance of administrative duties, even those normally\nassociated with an \"office, \" is not the exercise of the functions of\nthat office. The \"exercise of its functions, \" when used with\nreference to a civil office, means the exercise of whatever\nsovereign functions the office has been assigned. You have, for\ninstance, stated in the past that an agent may perform any number\nof duties which have devolved on another as the head of a depart-\nment without thereby becoming a \"civil officer\" so long as he is\nnot given authority to exercise a function of government, 4 Comp.\nDec. 696, 701 (1898). Moreover, fear of directions from a\nmilitary officer's military superior conflicting either with directions\nfrom his civilian superior or from his conscience (as when the\nofficer is a legislator who must exercise independent judgment)\nis unwarranted in this case, since the President is both the civilian\nsuperior and the military commander-in-chief of the officer in\nquestion. U.S. CONST. art.\nII, §2. Cessante ratione legis, cessat et ipsa lex.\nThree additional factors militate for accepting the conclusion\nreached herein.\n11.\nFirst, this conclusion is in accord with an administrative\npractice of longstanding. Historically, Congress has left unfettered\nthe President's freedom to seek assistance and advice from whom-\never he chose so long as he did not delegate any of the sovereign\nauthority of the President to such men. See generally E. CORWIN,\nTHE PRESIDENT: OFFICE AND POWERS, 1787-1957, at 71, 300-\n01 (4th rev. ed. 1957). Indeed, although \"Presidents have, of\ncourse, 'always had some kind of help in the discharge of their\nduties,\nit was not until 1857 that Congress appropriated\nmoney for a presidential clerk. \" Id. at 300-01. This manifests\nthe understanding that the President's authority to seek assistance\nis not limited to those whom the Congress authorizes him to employ.\nAmong those from whom Presidents have sought assistance\nin the past are a number of active duty military officers. The most\nrecent example is then Brigadier General Andrew Goodpaster's\nservice as an assistant to President Eisenhower. In 1870, when\nsection 973(b) was first enacted, four officers on the active list\nof the Regular Army were serving as secretaries to President\nGrant. These secretaries performed functions beyond those of a\nclerical secretary. No visitor was admitted to the President until\none of the secretaries had ascertained the caller's mission and had\njudged it worthy of the President's personal attention. In 1869,\nGrant sent one of the secretaries to Santo Domingo to investigate\nits government and finances with a view toward annexing the\ncountry by purchase. See generally U.S. GRANT, ULYSSES S.\nGRANT: POLITICIAN 198 ff. (1935); C. G. BOWERS, THE\nTRAGIC ERA: THE REVOLUTION AFTER LINCOLN 296-97\n(1929). Nevertheless, although Congress' attention was called\nto this fact during the debates on the dual office act, CONG.\nGLOBE, 41st Cong., 2d Sess. 3403 (1870) (remarks of Sen.\nWilliams), the practice continued and one of the men served\nPresident Grant as secretary until 1876.\nThird, this conclusion is supported by policy considerations\nstemming from significant constitutional values. The President's\npower as commander-in-chief, U.S. CONST. art. II, §2, gives the\nPresident broad authority over the assignment of military personnel.\nSee also 10 U.S.C. § 3012(e) (1970) (power of the Secretary of the\nAriny to assign Army members). A statute should not be read to\ninfringe on this authority unless its intent to do so is quite apparent\non its face.\nLIBRARY\n12\nAdded to the balance, as well, must be the general delegation\nof executive authority to the President. See U.S. CONST. art.\nVI, §1.\nFollowing the sudden resignation of several top aides, the\nPresident believed it necessary to call on extremely short notice\nupon men in whose ability, experience, and judgment he had great\ntrust. One of the men upon whom he called was the Vice Chief of\nStaff of the Army. One should be hesitant to construe an ambiguous\nstatute so broadly as to prevent the President from seeking temporary\nassistance in what may fairly be characterized as near emergency\nconditions from the members of his executive departments, military\nas well as civilian, especially in view of the consistent historical\npractice both at the time of the 1870 statute's enactment and there-\nafter.\nYou apparently would allow the President to seek advice from\nmilitary officers on military and foreign affairs subjects but not\non other matters. Thus, neither you nor any other official has\nquestioned either General Haig's prior role as deputy to Mr.\nKissinger nor the use of high ranking officers as military aides\nto advise the President on matters of national defense. See\nCOMMISSION ON THE ORGANIZATION OF THE EXECUTIVE\nBRANCH OF THE GOVERNMENT [HOOVER COMMISSION],\nGENERAL MANAGEMENT OF THE EXECUTIVE BRANCH 12-13\n(1949). But the proper distinction is not based on the nature of\nthe subject matter involved; a military man cannot serve as\nSecretary of State or, with one statutory exception, see 10\nU.S.C. § 3017(b) (1970), as Secretary of the Army. Rather,\nthe distinction should be based on the operative role the military\nman fills; i. , whether he exercises a sovereign function. More-\nover, the fact that an adviser occupies an office in the Executive\nOffice Building, as was true of General Haig's earlier White\nHouse service, or that the course of advice is lengthy rather\nthan brief should not be determinative of the existence of a\nviolation of section 973(b). Cf. 44 COMP. GEN. at 833 (fact\nthat position causing violation temporary immaterial). The\nlevel at which the officer serves is similarly immaterial. See,\ne.g., 29 COMP. GEN. 363, 369 (1950).\nFinally, this conclusion is supported by considerationsef equity.\nApplying the forfeiture provision of section 973(b) broadly in a border-\nline situation such as this could require the officer involved to make\n13\na Hobson's choice. On the one hand, he can comply with the order\nof a superior assigning him to a particular duty and subject himself\nto loss of his commission, of his career, and of his retirement\nbenefits. On the other hand, he can refuse the order and subject\nhimself to trial by court-martial (see Uniform Code of Military\nJustice, art. 92, 10 U.S.C. § 892 (1970)), incarceration, dis-\nmissal from the service, and loss of his commission, of his\ncareer, and of his retirement benefits. To require an officer\nof the armed forces in such a case to refuse a direct order from\na superior -- in this case, the Commander-in-Chief -- on the\nbasis of an imprecise statute which has been given varying inter-\npretations by administrative agencies under penalty of a substantial\nforfeiture if he guesses incorrectly is hardly equitable.\nAt least two other agencies of Government have confirmed\nthe conclusion reached herein.\nFirst, in order for General Haig to have retired in the grade\nof general, it was necessary for the Senate to advise and consent\nto his being placed on the retired list in that grade. 10 U.S. C. §\n3963 (1970). Given this opportunity to review General Haig's\nmilitary status, the Senate confirmed his retirement without\ndebate. 119 CONG. REC. S13516 (daily ed. July 14, 1973).\nThis action suggests that the Senate did not believe that General\nHaig had failed to meet the prerequisites established for retire-\nment by the statute which your February 7 letter cites. Nor can\none assume that the Senate did not consider the issue presented,\nsince at the time of that body's action, you had already responded\nto an inquiry from Representative John Moss on this subject, and\nthe litigation director of Public Interest, Inc., Alan B. Morrison,\nEsquire, had, with attendant publicity, filed suit in federal court\nto strip General Haig of his military rank.\nIn addition, the Attorney General has implicitly endorsed\nthe conclusions reached herein: by his representation of defendants\nin Morrison V. Callaway, Civil Action No. 1108-73 (D. D. C.,\ndecided Jan. 8, 1974); by his failure to bring a quo warranto\naction pursuant D. C. CODE tit. 16, §§ 16-3501 to -3502 - (Supp. V.\n1972), the traditional manner of testing whether a Government\nofficial is illegally holding or exercising an office under the\nUnited States, civil or military; and by his preliminary conclusion,\nexpressed in his letter of July 6, 1973, to Representative Moss, that\nno violation of section 973(b) had occurred.\n14\nIn essence, then, because the alleged violation is far from\nclear, because the administrative agencies with primary respon-\nsibility in this area have concluded that no violation has occurred,\nand because in any event the facts do not warrant any such con-\nclusion, I believe that you should reverse your tentative opinion\nthat General Haig occupied or exercised the function of a civil\noffice while a member of the Regular Army on active duty.\n2. Statutory Authority for General Haig's Temporar y\nService To The President Excepts Him From The\nOperation of 10 U.S.C. § 973 (b) (1970).\nWholly apart from the issue whether General Haig occupied\na civil office is a second issue which, I believe, requires reversal\nof your tentative opinion.\nSection 973(b) provides for statutory exception to its for-\nfeiture provision. Over the years, Congress has passed a number\nof such exceptions to section 973(b). For example, officers may be\ndetailed to the National Aeronautics and Space Administration, 42\nU.S.C. § 2473(b) (12) (1970), without the application of the penalty\nof the dual office act. These exceptions need not be express.\nSee 14 OP. ATT'Y GEN. 573, 573-74 (1875).\n3 U.S.C. § 107 (1970), constitutes such an exception which\nauthorized General Haig to render temporary assistance to the\nPresident at the latter's request. That section provides:\nEmployees of the executive departments and\nindependent establishments of the executive\nbranch of the Government may be detailed from\ntime to time to the White House Office for\ntemporary assistance.\nThe term \"employee\" has variable meaning depending on\nthe context in which it is used. Thus, for instance, title 5 of\nthe United States Code at times defines the term to include\nmembers of the military, e.g., 5 U.S.C. § $ 7342(a)(1)(C),\n8311(1)(C) (1970), and at times not to include such personnel.\nE.g., id. § 2105(a). Where the language of an act is silent as\nto the scope of the term \"employee, \" the purpose and history\nof the legislation must be consulted in determining its meaning.\nis\nFORD\nGERALD\n15\nThe legislative history of section 107 is silent as to whether\nmilitary officers may be considered \"employees of the executive\ndepartments\" within the meaning of the statute. Its purpose, however,\nrequires that it be interpreted broadly to include military officers.\nSection 107 is a remedial statute, designed to provide to the\nPresident on a temporary basis the assistance he requires. I per-\nceive no rationale for excluding military officers from the categories\nof employees for the purpose of assisting the President in such\nsituations. The longstanding practice of military assistance to the\nWhite House Office supports this reading of the statute.\nBecause so interpreted, 10 U.S.C. §§ 101(5)-(6), 3031(a)\n(1970), read together, make the Vice Chief of Staff of the Army an\nemployee of an executive department. General Haig, then Army\nVice Chief of Staff, could have been detailed to the White House\nOffice for temporary assistance under authority of 3 U.S.C. § 107\n(1970), notwithstanding 10 U.S.C. § 973(b) (1970). That is pre-\ncisely what occurred: while retaining his position as Vice Chief\nof Staff, General Haig provided temporary assistance to the White\nHouse Office. Consequently, even if you hold that General Haig\nwould otherwise be within the proscription of section 973(b), this\nexception provides a shield from the statutory forfeiture.\n3. If General Haig's Service In The White House Office\nFrom May 4 Through July 31, 1973, Is Held Violative\nOf Section 973(b), The De Facto Officer Doctrine Provides\nA Basis For Retention Of Pay And Allowances Received\nAnd For The Receipt Of Future Retirement Benefits.\nEven if you should decide that General Haig's service on the\nWhite House staff during the period in question was in violation of\nsection 973(b), I believe that General Haig should be held to have\nbeen a de facto officer during the period in question.\nThe de facto officer doctrine generally provides that when\none occupies an office of the government and performs the functions\nthereof under a claim of right and color of title to the office in good\nfaith, notwithstanding the absence of a de jure right to that office,\nthe individual is de facto the officer. See generally United States V.\nRoyer, 268 U.S. 394 (1925); Badeau V. United States, 130 U.S. 439,\n452 (1889).\n16\nDuring the period in question, General Haig met these qualifi-\ncations with respect to the office of general in the United States Army.\nHe occupied that office under a claim of right and with color of title\nthereto. The fact that he continued to hold that office while serving\non the White House staff only after receiving the advice of attorneys\nof this Department and the assurances of, among others, the President,\nmoreover, makes clear that he held the office of general in the good\nfaith belief that it was his. Thus, General Haig should be held to\nhave been de facto a general in the United States Army during that\nperiod.\nIf General Haig is held to have been a de facto officer, there\nis little doubt that he is entitled to retain the pay and allowances\nwhich he received as an Army general during the period in question.\nE.g., United States V. Royer, 268 U.S. 394 (1925); 30 COMP. GEN.\n195, 198 (1950).\nThere remains, however, the question whether General Haig\nis entitled to utilize his status as a de facto officer in order to\nqualify for retirement under 10 U.S.C. § 3962 (1970). Although\nthere is authority to the contrary, we believe the proper holding to\nbe that the de facto officer doctrine, at least upon the peculiar facts\nof this case, provides such a basis.\nI have found three sources for the proposition that a de facto\nofficer may not retire in that status. 36 COMP. GEN. 632, 634\n(1957), asserts that the de facto officer doctrine evolved\nto protect the interests of the public and individuals whose\ninterests were involved in the official acts of persons\nexercising the duties of an office without being lawful\nofficers.\nConsequently, it notes that de facto officers may retain salaries\nwhich have already been paid them, but it asserts that\nthere appears to be no sound reason why the rule\nshould be extended further to cover persons who\nare on\na retired list and who have no official\nduties to perform from day to day.\nId.\n17\nThis interpretation assumes that the doctrine was in no way\nintended to compensate the de facto officer, but rather, that payments\nto him had solely been made to him to insure the adequacy of his\nperformance of duty at the time of performance. This position is\nincorrect. It is significant that Badeau had held that the monies\npaid him should not be recovered from the de facto officer \"ex aequo\net bono\" -- \"in justice and fairness. 113/ Badeau V. United States,\n130 U.S. at 452. Confirming the equitable nature of the doctrine is\nyour predecessor's holding that not only may a de facto officer retain\nthe pay and allowances in his possession, but \"where it has been\nrefunded to the Government he is entitled to recover it back. \" 30\nCOMP. GEN. 195, 198 (1950). Indeed, were the purpose of the\ndoctrine solely to protect third parties, there would be no reason\nto allow the de facto officer, once his de facto status is discovered,\nto retain the monies previously paid him (assuming he thereafter\nno longer performs the functions of the office). This is because\nwhile he was performing the acts, he thought he would be remunerated\nas a de jure officer, assuming as we must that he held the office in\ngood faith; and after the discovery of his status, there is no longer\nany need for an incentive, since his performance has ended.\nNeither the Court of Claims decision in Heins V. United\nStates, 149 F. Supp. 331 (Ct. C1. 1957), nor the opinion in 44 COMP.\nGEN. 83, 86 (1964), add to the analysis. In the former, the court\ndenied disability retirement pay to plaintiff because, although a\nde facto officer of the Air Force, plaintiff was not legally \"entitled\nto receive basic pay\" at the time his physical disability was incurred\nas required by the statute dealing with disability retirement. 4/ The\nlatter merely relied upon earlier decisions, including the two cited\nearlier. The difficulty with Heins is that it misapprehends the nature\nof the de facto officer doctrine. It resorts to a purely legal analysis\nand therefore concludes that an equitable doctrine should not be\napplied, when, in truth, it should have considered the equities in\ndetermining whether an equitable doctrine otherwise applicable to\nthe facts at hand should have been applied. 44 COMP. GEN. 83,\n86 (1964), merely cites earlier precedent without analysis, and\nhence, its validity must be held to depend upon the validity of the\nprecedents which it cites.\nBLACK'S LAW DICTIONARY 659 (4th ed. 1951).\n4/ This is at most an alternate holding.\nFORD\nGERALD\n18\nA proper approach would weigh the equitable considerations\nunder the facts and circumstances described. We believe that\nconsiderations of equity militate strongly for payment of earned\nretirement benefits to a de facto officer.\nA de facto officer, by definition serves in good faith and per-\nforms the services required of the office holder. In so doing, he\nrelies upon his understanding (and perhaps the assurances of other,\nde jure, officers) that he is entitled to certain benefits. Cf.\nRESTATEMENT OF CONTRACTS § 90. The purpose of the de facto\nofficer doctrine is to make him whole for his acts performed in\nreasonable reliance on recompense. Future pay is not required to\nmeet this objective, because at the time he learns of his de facto\nstatus, he no longer can reasonably rely on future recompense.\nThis is not true of retirement benefits, which by their very nature\nare expected payments in futuro for past service.\nIf a contrary conclusion is reached, a de facto officer must\nbe held unknowingly to have assumed the risk that his title to the\noffice is not valid in law. Not only must the prospective office\nholder assume this risk, but he must also forego other opportunities\noutside the Government in which this risk would be wholly absent.\nSuch a result seems inequitable, as well as tending to discourage\nthe acceptance of offices by qualified individuals.\nAlthough General Haig's service as a de facto officer amounted\nto not more than three months, under the interpretation found in\nthe cited cases, his reliance for this period of three months would\nbe held to have forfeited pension rights accrued over twenty-six\nyears of service.\nIn addition to the notions of reliance, there is as a corollary\na reasonable expectancy of receipt of retirement benefits when\nsufficient employment has been performed otherwise to qualify for\nsuch benefits. Viewed from this perspective, once it is ascertained\nthat a de facto officer has performed his duties in good faith, the\nformalistic approach of Heins seems wholly unreasonable.\nConsider from both perspectives, reliance and expectancy,\nthe hypothetical case of one who has served for forty years, only\nto learn at the time of his retirement that for that entire period he\nhas not held the office de jure. This Department does not believe\nTO R. FORD LIBRA,\n19\nthat the Government should be prepared to say to that man that he\nis not entitled to the retirement benefits normally attendant to that\nposition. Yet the principal difference between that man and General\nHaig is the fact that Haig served for all but three months of his\nGovernment service as a de jure officer.\nGeneral Haig's case is also distinguishable, both from the\nhypothetical case presented and from the three cases cited above,\nin that prior to the time he accepted the assignment which, at worst\nfrom his standpoint, is a de facto office, he had already performed\nall the service required for him to retire. Stated slightly differently,\nGeneral Haig's right to retirement benefits had already been earned\nand his future receipt of such benefits in no way depended on his\nservice to the Government after May 4. To deny him those benefits\nwould be most inequitable.\nAdditionally, from a purely pragmatic standpoint, the approach\ntaken is an unreasonable assignment of the risks involved. A de facto\nofficer denied retirement benefits suffers a grievous personal loss,\nwhereas the cost to the Government from the payment of retirement\nbenefits to the limited number of de facto officers discovered annually\nto be such is miniscule. Thus, it appears desirable for the Govern-\nment to act as an insurer against this possible loss.\nConclusion\nBased upon the foregoing I conclude that your tentative opinion\nas expressed in your letter of February 7, 1974, was erroneous.\nI recommend that, for the reasons specified above, you will take\nthe position that Alexander M. Haig, Jr., remains a General,\nUnited States Army (retired), and that he is entitled to retain the\npay and allowances and the retirement benefits paid him to date\nand to continue to receive the retirement benefits which, through\na long and distinguished career in the service of this country, he\nhas fully earned.\nVery truly yours,\nRobert W. Berry\nGeneral Counsel\nCERALD FORD\n20\nCONFROLLER\nCENERAL\nCOMPTROLLER GENERAL OF THE UNITED STATES\nOF\nWASHINGTON, D.C. 20548\nTHE\nSTATE\nUNITED\nB-150136\nJuly 2, 1974\nThe Honorable\nThe Secretary of Defense\nDear Mr. Secretary:\nReference is made to our letter B-150136, dated February 7, 1974,\nrequesting your views concerning the service of General Alexander M.\nHaig, Jr., USA, 195-12-3625, in the White House during the period from\nMay 4 to July 31, 1973, while he was an officer on the active list of\nthe Regular Army. In that letter we stated that in view of the factual\nsituation (primarily as reported in White House press releases) concern-\ning General Haig's functions and duties at the White House, we had tenta-\ntively concluded that when he began to exercise those functions and duties\non or about May 4, 1973, he occupied a civil office and that his military\nappointment automatically terminated by operation of law under 10 U.S.C.\n973(b). We also tentatively concluded that with the termination of his\nmilitary appointment General Haig would not appear to have qualified as\na \"commissioned officer of the Army\" for the purposes of 10 U.S.C. 3911,\nthe law under which we understand he retired on July 31, 1973. As a\nresult, there was brought into question the legality of the payment to\nhim of active duty pay and allowances during the period May 4 to July 31,\n1973, and retired pay from and after August 1, 1973.\nWe have now received a letter dated April 22, 1974, from the General\nCounsel of the Department of the Army replying on behalf of the Depart-\nment of Defense to our February 7, 1974 letter. In his letter the Gen-\neral Counsel provides the following \"Statement of Facts\" concerning this\nmatter:\n\"After serving for almost four years in the Office of\nthe President, first as Military Assistant to the President\nfor National Security Affairs and subsequently as Deputy\nAssistant to the President for National Security Affairs,\nGeneral Alexander M. Haig, Jr., returned on January 4, 1973,\nto the Army staff, having been assigned on that date as Vice\nChief of Staff of the Army.\n\"On April 30, 1973, the White House announced the resig-\nnation of two of the President's senior assistants: Messrs. H. R.\nHaldeman and John Ehrlichman. Because of his confidence in\nGeneral Haig and because of his uncertainty as to the future\nroles of his personal staff, on May 3, 1973, the President\nFORD is LIBRARY CTV 8988\nSee Dai Has Seen\nG-1201\nJUL 1974\n7/140A\nB-150136\ndirected Haig to assist him temporarily with the functioning\nof the White House staff in order to help fill the void left\nby the resignations. Haig complied with this order and\nassumed his new duties the following day. Because the assign-\nment was a temporary one, id., Haig retained his assignment\nas Vice Chief of Staff of the Army. He planned to return on\na full-time basis to his Army post at the conclusion of his\ntemporary service at the behest of the President.\n\"During the period May 4 through July 31, Haig performed\nfor the President duties essentially of an administrative\nnature. Representative examples of Haig's duties included\ncoordinating dissemination of presidential directives, insuring\nreceipt by the President of information necessary for decision\nmaking, coordinating staff actions, and supervising the opera-\ntion of the White House staff. These functions correspond to\nsome extent, but not entirely, with those previously performed\nby H.R. Haldeman. However, Haig did not assume Haldeman's\nposition, which remained vacant.\n\"After the lapse of some time, the President and\nGeneral Haig agreed that Haig's services would be required\nfor a longer period than had originally been anticipated\nand that his role should be expanded to include a more sub-\nstantive, policy-oriented area of responsibility. General Haig\nimmediately took steps to be retired from the Army. He chose\nAugust 1, 1973, as the effective date of his retirement to allow\ntime for administrative processing and Senate confirmation of\nhis retirement request, for moving to civilian quarters, and\nfor the transfer of authority to his successor as Vice Chief\nof Staff of the Army.\n\"On June 14, 1973, the President nominated General Haig\nfor retirement and on July 14, 1973, the Senate duly voted\nits advice and consent. See 119 CONG. REC. S13516 (daily ed.\nJuly 14, 1973). General Haig retired on July 31, and his name\nwas placed on the retired list on August 1, 1973. On the latter\ndate, the President for the first time appointed Haig an Assist-\nant to the President, under title 3 of the United States Code,\nand Haig for the first time took an oath of office, received\na presidential commission, and was placed on the White House\npayroll by salary order.\"\n- 2 -\nFORD i GERALD LIBRARY\nB-150136\nThe General Counsel's letter also specifically states that from\nMay 4 through July 31, 1973, General Haig served the Government only\nin the capacity of Army Vice Chief of Staff; that he did not become\nAssistant to the President until August 1, 1973; and that prior to\nhis retirement, he neither held, nor exercised the functions of\nMr. Haldeman's position within the meaning of 10 U.S.C. 973(b). In\nthis regard, that letter states that the characterization by the White\nHouse Press Secretary of General Haig's service as an \"appointment\"\nshould not be determinative since the imprecise use of the word \"appoint-\nment\" in the informal atmosphere of a press conference is without legal\neffect. The General Counsel's letter concludes by expressing the view\nthat our tentative conclusion is erroneous and recommends that we take\nthe position that General Haig remains a General, United States Army\n(retired), and that he is entitled to retain the pay and allowances\nand retirement benefits paid to him to date and to continue to receive\nretirement benefits.\nWe have also received affidavits of General Haig; Mr. Jerry H.\nJones, Special Assistant to the President, who is responsible for\npersonnel administration of members of the White House Staff; and\nMajor General H.G. Moore, USA, Commanding General, Military Personnel\nCenter, United States Army, who is the official custodian of the per-\nsonnel records of all living retired general officers of the Army,\nincluding General Haig. Those affidavits support the General Counsel's\nstatement of the facts in this matter.\nOur tentative conclusion that as a result of his White House\nservice, General Haig's military appointment terminated on May 4, 1973,\nwas based on a finding that on that date he began to exercise the\nfunctions of the position previously held by Mr. Haldeman. A position\ncreated by 3 U.S.C. 106 which in our view is a civil office within the\nmeaning of 10 U.S.C. 973(b). However, as noted above, the General\nCounsel's letter and the supporting affidavits set forth the facts in\nthe matter and indicate that, while General Haig performed some admin-\nistrative functions for the President which correspond to some extent\nwith some of the functions Mr. Haldeman performed, he did not substan-\ntially perform the functions of that position until after his retirement\nfrom the Army, effective August 1, 1973.\nAs the General Counsel's letter also points out, the Attorney\nGeneral's representation of the defendants in the case of Morrison V.\nCallaway and Haig, Civil Action No. 1108-73, United States District\nCourt for the District of Columbia, decided January 8, 1974, implies\nthat the Attorney General found no impropriety in General Haig'\nGERALD\nLIBRARY\n- 3 -\nB-150136\nservice in the White House. In addition, as the General Counsel's\nletter indicates, on July 14, 1973, the Senate confirmed General Haig's\nretirement in the grade of general, as is required by 10 U.S.C. 3962(a).\nWhile the matter is not entirely free from doubt, in view of the\nfacts set forth above and since General Haig's current service as an\nAssistant to the President while on the retired list of the Army clearly\ndoes not violate 10 U.S.C. 973(b) (see 25 Comp. Gen. 38, 41 (1945)),\nthis Office will no longer question the active duty pay and allowances\npaid to General Haig for the period May 4 to July 31, 1973, and the\npayment of retired pay from and after August 1, 1973.\nTrue Sincerely yours, Q. starts\nComptroller General\nof the United States\nFORD & GERALD LIBRARY\n- 4 -\nMEMORANDUM\nTHE WHITE HOUSE\nWASHINGTON\nOctober 24, 1975\nMEMORANDUM FOR:\nPHIL BUCHEN\nDONALD D RUMSFELD\nFROM:\nI have read your memo to Brent Scowcroft of October 20\nconcerning gifts to U. S. Government Officials. It seems\nto me that what you ought to do is sit down with Brent and\nHenry and lay down the law. I don't see any need for a\nmeeting unless that doesn't work.\nCalled Brent\nBrent\n11/7/75\nFORD : LIBRARY 0ERALD\nTHE WHITE HOUSE\nWASHINGTON\nOctober 20, 1975\nMEMORANDUM FOR:\nBRENT SCOWCROFT\nFROM:\nPHILIP BUCHEN T.\nSUBJECT:\nGifts to U. S. Government\nOfficials\nIn view of the information being disclosed to the\nHouse Select Committee involving the Barzani gifts\nand the discussions we had last evening, I attach\nthe following:\n(1) A copy of the statute on foreign gifts\nand decorations (5 USCA, Section 7342) .\n(2) Regulations issued from the State Depart-\nment on acceptance of gifts and\ndecorations from foreign governments\n(22 CFR, part 3).\n(3) Procedures adopted for processing of\ngifts received by or on behalf of the\nPresident which are from foreign\nsources.\n(4) Page 4 of the Standards of Conduct for\nthe White House staff with possibly\nrelevant subparagraphs marked.\nIf the gifts in question were from an \"official agent\nor representative\" of a foreign government, the statute\nand the regulations would apply and the use or the\ndisposition thereof would be controlled by Section 3.6\nof the regulation. If the gifts are not from such an\nofficial agent or representative, they are then subject\nto the Standards of Conduct for the White House staff\nas shown in the attached excerpt.\nFORD is LIBRARY QERALD\n- 2 -\nThis excerpt comes from the current Standards of\nConduct, but the same provisions appeared in the\nStandards of Conduct which were in effect under\nPresident Nixon. I do not have copies of the\nState Department's standards of conduct, but I\nassume they contain similar provisions.\nI am very fearful that unless there is compliance\nwith the procedural requirements imposed by either\nthe foreign gifts regulation or the standards of\nconduct, the Committee may use the information\nsupplied to make telling charges of non-compliance.\nIt is also likely that the Committee may use this\nopportunity to investigate the whole story of\ngifts involving persons in the service of the\nState Department, CIA, and the White House insofar\nas gifts or other favors have come from governments,\norganizations, or persons benefiting from covert\nactivities or other intelligence related functions\nof the U. S. government.\nThe urgency of this situation, I believe, requires\nthat a meeting be held promptly which should\ninclude Jack Marsh and Don Rumsfeld or someone from\nDon's office.\nAttachments\nCC: Jack Marsh\nDon Rumsfeld\nFORD & LIBRARY OERALD\nTHE WHITE HOUSE\nWASHINGTON\nNovember 3, 1975\nMEMORANDUM FOR:\nPHIL BUCHEN\n12\nFROM:\nKEN LAZARUS\nAttached are copies of 10 U.S.C. Section 973(b) and\n50 U.S.C. Section 402.\nThe first prohibits any active military officer from\naccepting appointment to any office of the United\nStates. The second provides that the Executive\nSecretary in charge of the staff of the National\nSecurity Council shall be a civilian executive.\nI assume that these provisions were considered\nrelevant to any appointment of General Scowcroft\nto succeed Henry Kissinger as the President's\nnational security adviser.\nRoosevelt Smith\nAttachment\nGeneral\nfeen.\n205CSINT 3107\nAirForce\nComptrellor General\nGERALD FORD LIBRARY\nSubt. A\nCh. 49 MISCELLANEOUS PROHIBITIONS, ETC. 10\n§\n974\ne was as-\n(b) Except as otherwise provided by law, no officer on the active\nination of\nlist of the Regular Army, Regular Navy, Regular Air Force, Regular\nce did not\nknew that\nMarine Corps, or Regular Coast Guard may hold a civil office by\nauthority\nelection or appointment, whether under the United States, a Territo-\nsult in se-\nry or possession, or a State. The acceptance of such a civil office\nel. Gaston\nSupp. 986.\nor the exercise of its functions by such an officer terminates his\nmilitary appointment.\na sergeant\nit was in-\nAdded Pub.L. 90-235, § 4(a) (5) (A), Jan. 2, 1968, 81 Stat. 759.\nassigned\nto believe\nmated ter-\nHistorical Note\nmade by\nLegislative History. For legislative 1967 U.S.Code Cong. and Adm.News, p.\nprocessing\nhistory and purpose of Pub.L. 90-235, see 2635.\n1 have ap-\nto oppose\nCross References\nnation of\n'al's erro-\nReduction in retired or retirement pay during term of employment, see section 5532 of\n: termina-\nTitle 5, Government Organization and Employees.\ncustodian\ntitioner to\nLibrary References\nArmed Services 15.\nC.J.S. Army and Navy §§ 14, 19.\nis burden\nhis appli-\nNotes of Decisions\nconnection\nestimated\n1. Standing to sue\nrough the\nPlaintiff could not successfully claim\nPlaintiff did not have standing as tax-\ne petition-\nstanding to sue on basis of his status as\npayer to bring action challenging legality\nofficer's\na citizen in action challenging legality of\nof defendant's simultaneous service as an\nexercising\ndefendant serving simultaneously as an\nassistant to the President of the United\ntion over\nassistant to President of the United\nStates and as an officer of the Army\nnot show\nStates and as an officer of the Army\nholding the rank of General under provi-\nwrit of\nholding the rank of General, since plain-\nsion of this section stating that no offi-\ntiff did not rely on the precise self-oper-\ncer on active list of regular Army may\native provision of U.S.C.A.Const. Art. 1, §\nhold civil office under United States and\nand guilty\n6, cl. 2, seeking to maintain independence\nthat acceptance of civil office or exercise\nperiod ex-\namong governmental branches but rath-\nof its functions terminates military ap-\ndon of his\ner on a congressional enactment seeking\npointment. Id.\nquired to\nto guard against potential for undue in-\nlod, under\nfluence. Morrison V. Callaway, D.C.D.C.\nto add to\n1974, 369 F.Supp. 1160.\nso-called\nto habeas\nit he had\n§ 974.\nCivilian employment: enlisted members\nprocess in\ngood faith\nExcept as provided in section 6223 of this title no enlisted mem-\nlarged, in\nber of an armed force on active duty may be ordered or permitted to\nhimself of\nin such\nleave his post to engage in a civilian pursuit or business, or a per-\nMoses, D.\nformance in civil life, for emolument, hire, or otherwise, if the pur-\nsuit, business, or performance interferes with the customary or reg-\nular employment of local civilians in their art, trade, or profession.\nFORD\nil func-\nAdded Pub.L. 90-235, § 6(a) (6) (A), Jan. 2, 1968, 81 Stat. 762.\nHistorical Note\nRegular\nBERALD\nLegislative History. For legislative 1967 U.S.Code Cong. and Adm.News,\nar Coast\nhistory and purpose of Pub.L. 90-235, see 2635.\n3 him to\nterferes\nLibrary References\nArmed Services 25.\nC.J.S. Army and Navy § 30.\n13\n50\n401\nWAR AND NATIONAL DEFENSE\nWAR Al\nNote 8\nBritish-American command, was within\nents of which the particular case is com-\nClassification Act of 1949, ch\nimport of \"international organizations\"\nprised. Gayer V. Schlesinger, 1973, 490\nTitle 5. Section 3 deleted pr\nin this context. Id.\nF.2d 740, 160 U.S.App.D.C. 172, amended\nmitting the Secretary of Def\n\"Operation Keelhaul\" file. which was\n49+ F.2d 1135.\ntablish not more than 50 re\ncreated in 1946 by Allied Force Head-\ndevelopment positions in the N\n11. Scope of interrogation\ncurity Agency.\nquarters. a post-World War II joint Bri-\nGovernment officials interrogating ho-\ntish-American command, was not subject\nSections 2, 4-8 of Pub.L. 86\nmosexual to determine whether security\ned as follows:\nto mandatory declassification under\nclearance should be withdrawn may be\nterms of executive order which provides\n\"Sec. 2. The Secretary of I\nrelevantly and materially informed but\nautomatic declassification for documents\nhis designee for the purpose) i\nreasonable latitude must be accorded the\nafter 20 years, in view of exception for\ned to establish such positions.\nhomosexual as to specificity of his an-\nmaterials furnished by foreign govern-\npoint thereto, without regard t\nswers to permissible questions: the iden-\nments or international organizations, and\nservice laws, such officers and\ntity of sex partners is not to be insisted\nfact that some of documents were prod-\nin the National Security Agenc\nupon, unless in a particular case some\nucts of British members of the joint\nbe necessary to carry out the ft\nspecial reason can be held to justify it.\nforce. Id.\nsuch agency. The rates of basi\nGayer V. Schlesinger. 1973. 490 F.2d 740,\nsation for such positions shall\n9. Record\n160 U.S.App.D.C. 172, amended 494 F.2d\nby the Secretary of Defense (0\nRecord did not warrant conclusion that\n1135.\nignee for the purpose) in relat:\nthe Industrial Security Clearance Review\nWhere plaintiff who sought to set aside\nrates of basie compensation C01\nOffice of the Department of Defense was\nthe withdrawal of his secret security\nthe General Schedule of the Cla\napplying a per se rule of withdrawing\nclearance admitted that he was an active\nAct of 1049, as amended [chap\nsecurity clearance to homosexuals with-\nhomosexual, thereby disclosing sufficient\nTitle 5], for positions subject to\nout any consideration of plaintiff's indi-\ninformation with respect to the \"sexual\nwhich have corresponding levels\nvidual case; the board's remand for sup-\nperversion\" and probably also the \"crimi-\nand responsibilities. Except as\nplementary rehearing, even though plain-\nnal conduct\" factors of criterion for\nin subsections (f) and (g) of sect\ntiff had admitted to being a homosexual,\nwithholding security clearance, whatever\nthe Federal Executive Salary Ac\nindicated that the determinations were\nfurther information was sought with re-\nno officer or employee of the Nat\nnot the result of a per se rule denying\nspect to other criteria, it must not only\ncurity Agency shall be paid be\nclearance to homosexuals. Gayer v.\nbe relevant but no more intrusive of the\npensation at a rate in excess of\nSchlesinger, 1973, 490 F.2d 740, 160 U.S.\nprivacy than was reasonably necessary.\nest rate of basic compensation\nApp.D.C. 172, amended 494 F.2d 1135.\nId.\nin such General Schedule. Not II (\nGovernment officials may seek informa-\nseventy such officers and employ\n10. Conclusiveness of findings\ntion from applicant seeking employment\nbe paid basic compensation at ra\nSome deference must be accorded by\nin defense industry as to whether he has\nto rates of basic compensation C\nthe courts to conclusion of the authori-\nled and intends to lead a homosexual\nin grades 16, 17, and 18 of such\nties charged with responsibility under\nlife. and other relevant information re-\nSchedule.\" [As amended Pub.L\nexecutive order and directive of the De-\nspecting particular conduct, but informa-\nTitle II, § 201, Oct. 4, 1961, 75 S\nfense Department with regard to security\ntion as to his sexual life must be only\nSept. 23, 1950. c. 1024. Title III,\nclearance, and the degree of such defer-\nthat which is reasonably necessary to\nas added Mar. 26, 1964, Pub.L. &\nence must be the result of a nice but not\nmake a determination with respect to any\nStat. 170; Aug. 14, 1964, Pub.L.\neasily definable weighing of the ingredi-\ncriteria being invoked. Id.\nTitle III, § 306(h), 78 Stat. 430;\n1964, Pub.L. 88-631, § 3(d), 78 Sta\n8 402. National Security Council\n878]. Oct. 8, 1966, Pub.L. 89-632, § 1(e),\n[See main volume for text of (a) and (b)]\n\"Sec. 4. The Secretary of Defe\nhis designee for the purpose) is\nrized to-\nExecutive secretary; appointment and compensation; staff employees\n\"(1) establish in the National\n(c) The Council shall have a staff to be headed by a civilian executive\nty Agency (A) professional engi\npositions primarily concerned W\nsecretary who shall be appointed by the President. The executive secre-\nsearch and development and (E\ntary, subject to the direction of the Council, is authorized, subject to the\nfessional positions in the physic\nnatural sciences, medicine, and c\ncivil-service laws and the Classification Act of 1949, to appoint and fix the\nogy: and\ncompensation of such personnel as may be necessary to perform such du-\n(2) fix the respective rates\nof such positions at rates eqt\nties as may be prescribed by the Council in connection with the perform-\nrates of basic pay contained in\nance of its functions.\n16, 17, and 18 of the General Sc\nset forth in section 5332 of ti\nUnited States Code [section 5332\nRecommendations and reports\ntle Employees]. 5, Government Organization\n(d) The Council shall, from time to time, make such recommendations,\nOfficers and employees appointed t\nand such other reports to the President as it deems appropriate or as the\nsitions established under this S\nshall be in addition to the number\nPresident may require.\nficers and employees appointed to\ntions under section 2 of this Act\nLibrary references: United States 29 et seq.; War and National Defense @40;\nmay be paid at rates equal to rat\nC.J.S. United States \" 24, 62; C.J.S. War and National Defense 6 48.\nbasic pay contained in grades 16, 17\n18 of the General Schedule.'\nReferences in Text. The Classification\nPub.L. S7-793, § 1001(c), Oct. 11, 1962, 76\n[As amended Pub.L. 87-367, Title\nAct of 1949, referred to in subsec. (c), is\nStat. 864; Sept. 23, 1950, c. 1024, Title\n204, Oct. 4, 1961, 75 Stat. 791; P\nclassified to chapter 51 of Title 5, Gov-\nIII, § 306(a), as added Mar. 26, 1964,\n87-793, § 1001(c), Oct. 11, 1962, 76\nernment Organization and Employees.\nPub.L. 88-290, 78 Stat. 170; Aug. 14, 1964,\n864; Oct. 8, 1966, Pub.L. 89-632, § 1(€\nCodification. Provisions in subsec. (c)\nPub.L. 88-426, Title III, § 306(h), 78 Stat.\nStat. 878; Pub.L. 91-187, § 2, Dec\nwhich limited the compensation of the\n430; Oct. 6, 1964, Pub.L 88-631, § 3(d). 78\n1969, 83 Stat. 850].\nexecutive secretary to $10,000 a year were\nStat. 1008; Sept. 6, 1966, Pub.L. 89-554,\nomitted since the position referred to is\n§ 8(a), 80 Stat. 660; Oct. 8, 1966, Pub.L.\nEXECUTIVE\nnow in the classified civil service and\n89-632, § 1(e), 80 Stat. 878; Pub.L. 91-187,\nsubject to the applicable compensation\n§ 2. Dec. 30, 1969, 83 Stat. 850, provided\nEx.Ord.No.10700. Feb. 25. 1957, 22\nschedules.\ncertain administrative authorities for the\n1111. as amended by Ex.Ord.No.10773,\nThe authority for covering excepted\nNational Security Agency.\n3. 1958, 23 F.R. 5061; Ex.Ord.No.1\npositions into the classified civil service\nSections 1 and 3 of Pub.L. 86-36-amend-\nSept. 8, 1958, 23 F.R. 6971: Ex.Ord\nwas given the President by former sec-\ned section 1082 of Title 5, Executive De-\n10838, Sept. 17, 1959, 24 F.R. 7519, form\ntion 631a of Title 5. By Executive Order\npartments and Government Officers and\n8743, Apr. 25, 1941 the President exer-\nEmployees, and section 1581(a) of Title\n§ 403. Central Intelligence\ncised this authority with respect to many\n10, Armed Forces (as modified by section\npreviously excepted positions.\n12(a) of the Federal Employees Salary\nDeputy Director; appointment\nNational Security Agency. Pub.L. 86-\nIncrease Act of 1958, 72 Stat. 213), respec-\n(a) There is established under\n36, §§ 1-8, May 29, 1959, 73 Stat. 63, as\ntively.\namended by Pub.L. 87-367, Title II, §§\nSection 1 exempted the National Securi-\nIntelligence Agency with a Direc\n201, 204, Oct. 4, 1961, 75 Stat. 789, 791:\nty Agency from the provisions of the\n54\nTHE WHITE HOUSE\nWASHINGTON\nNovember 4, 1975\nMEMORANDUM FOR:\nGENERAL SCOWCROFT\nFROM:\nPHILIP BUCHEN T.W.B.\nSUBJECT:\nAssumption of the Duties of\nAssistant to the President for\nNational Security Affairs\nThis is to present my recommendation that, prior to your\nretirement from the Air Force, you should refrain from\nassuming the office or exercising the functions currently\nheld by Secretary Kissinger in his capacity as Assistant to\nthe President for National Security Affairs.\nLegal Constraints\n10 U.S.C. 973(b) derives from the Act of July 15, 1870,\nch. 294 §18, 16 Stat. 319. As most recently amended and\nrecodified, it reads:\n* * *\n\"(b) Except as otherwise provided by law, no\nofficer on the active list of the Regular Army,\nRegular Navy, Regular Air Force, Regular\nMarine Corps, or Regular Coast Guard may\nhold a civil office by election or appointment,\nwhether under the United States, a Territory\nor possession, or a State. The acceptance of\nsuch a civil office or the exercise of its\nfunctions by such an officer terminates his\nmilitary appointment.\"\n* * *\nFORD is GERALD LIBRARY\n10 U.S.C. 88911, in pertinent part, provides that the Secretary\nof the Air Force 11 may, upon the officer's request, retire\n- 2 -\na regular or reserve commissioned officer of the Air Force who\nhas at least 20 years of service 11\nThus, if the exercise of your new duties as the successor to\nSecretary Kissinger in his capacity as Assistant to the President\nwould constitute a \"civil office\" within the meaning of 10 U.S.C.\n973(b), your acceptance of such appointment or exercise of\nthe functions of such office would have the effect of automatically\nterminating your military employment. Moreover, it would\nappear that such a termination would also have the effect of\nmaking you ineligible for military retirement benefits to which\nyou would otherwise be entitled under 10 U.S.C. 88911.\nDiscussion\nThe term \"civil office\" as used in 10 U.S.C. 973(b) and\npredecessor statutes has not been statutorily defined. It is a\nterm of variable meaning, the connotation of which changes\nwith the context in which it is used. Morganthau V. Barrett,\n108 F. 2d 481, 483 (D.C. Cir. 1939). The meaning to be given\nthe term when used in a statute should be that which will\neffectuate the purposes of the statute being construed. See,\ne.g., Pardon V. Puerto Rico ex rel. Castro, 142 F. 2d 508,\n510 (1st Cir. 1944).\nFrom the debate on the floor of the Senate in 1870 regarding\nthe antecedent of section 973(b), it appears that the primary\nconcern of the Congress was the exercise of civil authority by\nmilitary officers. CONG. GLOBE, 41st Cong., 2d Sess.\n3393-3404 (1870). To this end, the Congress sought to prevent\n\"the union of the civil and the military authority in the same\nhands, 11 id. at 3401, in part because it was concerned that a\nmilitary officer exercising such authority would be subject to\nthe commands of his military superiors. The Congress did\nnot intend to prevent civilian officials from seeking advice or\nadministrative assistance from military officers. See, id.\nat 3403 (remarks of Sen. Trumbull).\nThe Comptroller General has consistently required that the\nfollowing three criteria must be present to constitute such\n\"civil office\":\nPORDO i LIBRARY QERALD\n- 3 -\n* * *\nThe specific position must be created by law,\nthere must be certain definite duties imposed\nby law on the incumbent, and they must\ninvolve the exercise of some portion of the\nsovereign power [44 Comp. Gen. 830,\n832 (1965)].\n* * *\nAn application of these criteria to the facts in the instant case\nleads to the following conclusions.\nFirst, it appears that your position as Assistant to the President\nfor National Security Affairs would be one \"created by law\". For\nat least the last 15-20 years, the position of national security\nadviser has been one on the immediate staff of the President\nunder 3 U.S. C. 8106. Additionally, your de facto function would\ninvolve management of the staff of the National Security Council,\ncreated by 50 U.S. C. §402.\nSecond, it also appears that the position would include \"certain\ndefinite duties imposed by law on the incumbent\", viz. \"\nsuch duties as the President may prescribe. (3 U.S.C. §106)\nThird, and most importantly, the position likely would be held\nto \"involve the exercise of some portion of the sovereign power. \"\nGiven the concerns of the drafters of 10 U.S.C. §973(b) for\ncivilian independence from military authority, this would seem\nto be the most important touchstone of the three under discussion.\n3 U.S.C. §107 provides authority for the detail of military\nofficers to the White House in order to provide advice on military\nmatters or administrative assistance. This authority has\ntraditionally been asserted as a basis for the detail of officers\nfor service as White House military aides and for the detail\nof a Deputy Assistant to the President for National Security\nAffairs. In these instances, the theory is that such detailees\nare limited to providing administrative support or advice\nlimited to military matters. On the other hand, the President's\nprincipal national security adviser has traditionally been\nresponsible for eliminating or minimizing differences of\n&\nFORD\nopinion between the Departments of State and Defense and 12 other\nREF\nLIBRARY\n- 4 -\ninterested agencies, with a right of direct access to the\nPresident.\nRecommendation\nThe Attorney General and the Acting General Counsel of the\nDepartment of Defense agree with my conclusion that, given\nthe substantial risks involved, i.e. loss of your military\nretirement and other military privileges, you are best\nadvised to resign your commission in the Air Force prior to the\nacceptance of an appointment as Assistant to the President for\nNational Security Affairs or the assumption of any duties of\nthat office.\nIn closing, I should also note that retirement at the grade of\nLieutenant General would require Presidential approval and\nthe advice and consent of the Senate [10 U.S.C. 8962].\nThis requirement does not apply to retirement at any grade\nbelow that of Lieutenant General.\nGERALD 717 P. FORD\nTHE WHITE HOUSE\nWASHINGTON\nNovember 6, 1975\nMEMORANDUM FOR:\nBRENT SCOWCROFT\nFROM:\nPHILIP BUCHEN\nSUBJECT:\nAssumption of Duties of\nAssistant to the President\nfor National Security Affairs\nThis follows-up my memo to you of November 4\non the above subject.\nApparently, the quickest way for you to be\neligible for assuming your duties as Assistant\nto the President would be for you to go\nimmediately on terminal leave pending formal\nretirement from active duty. 5 U.S.C.\nSection 5534a makes provision that a member\nof the uniformed service who is on terminal\nleave pending separation may accept a Civilian\noffice in the government of the United States\n(see copy attached).\nThen when you are on terminal leave and while\nyou are filling your new position, you can\napply for retirement which would be effective\non the first day of the following month.\nLeonard Niederlehner tells me he has\nconsulted with General Vague as Judge Advocate\nGeneral of the Air Force and Len suggests you\nget immediately in touch with General Vague\nand the Air Force Personnel Office to go on\nterminal leave and to take the necessary steps\ntoward formal retirement.\nAttachment\nFORD & LIBRARY GERALD\n5 § 5534\nEMPLOYEES\nCh. 55\ncause his name was carried on retire-\nafter the repeal of the Joint Resoluti :\nment list of other than regular Air Force\nof September 22, 1011. effective July :\nofficers and hence could not recover\n1048. the right to the exemption Is\namounts of retirement pay withheld from\nGradall F. U. S., 1962, 157 Ct.Cl.\nhim during periods in which he was a\ncivilian employee of government. Leon-\nIn an action to recover Reserve officip\nand 5. U. S.) 1056, 145 F.Supp. 755, 105\nretired pay withheld from plaintiff\nCt.Cl. 6S6. certiorari denied ii S.Ct. 1058,\nthe basis of the dual compensation E.-\n353 U.S. 976, 1 L.Ed.2d 1136.\nstrictions, the exemption from such 5...\nstriction contained in former section\nUnder provision of former section 371b\nof Title 10, was applicable to plaintite\nof Title 10, no existing law could be\neven though when he reached the E..,\nconstrued to prevent member of Officers'\nquired age of CO lie no longer had co:-\nor Enlisted Reserve Corps receiving pay\nmissioned status in any of the Resident\nincident to employment in any civil\ncomponents of the armed services. Bow.\nbranch of public service in addition to\nman Γ. C. S., 1001, 1H Ct.Cl. 418.\nany \"pay and allowances' to which he\nmight be entitled under laws relating to\nthe reserve corps, Army or Ait Force Re-\n5. Civilian pay\nserve Officers on retired list were enti-\nIn view of the fact that pursuant I.D\ntied to retired pay under former section\nformer section 30r(d) [now section 250\n1036 et seq. of Title 10, in addition to\n(d)] of this title when a reservist is\npay from civilian employment with CoΓ-\non active duty. or when he is on action\nernment exceeding $3,000 per year, not-\nduty for training. lte is not considered to\nwithstanding provisions of former section\nbe an officer or employee of the Unite:\n50a [now section 5532] of this title which\nStates or 2 person holding an office 1.8\nwould prohibit this. Tanner v. U. S.,\ntrust or profit and that he is authoriz-1\n1054. 125 F.Supp. 240, 129 Ct.Cl. 792, certi-\nunder former section 30r(c) of this title\norari denied 76 S.Ct. S3, 350 U.S. S42, 100\n[now this section] to accept a civilian\nL.Ed. 751.\nposition and receive both civilian salary\nand retired pay, the employment of =\nThe repeal of the Joint Resolution of\nnaval reservist as full-time referee in\nSeptember 22. 1041. conferring upon of-\nbankrupthy is not prohibited by section\nficers commissioned in the Army of the\n63(2) of Title 11, which provides that per-\nUnited States without component the\nsons holding any office of profit or envol-\nrights, privileges and benefits of mem-\nument under the laws of the United States\nbers of the Officers' Reserve Corps. did\n07 of any State shall be ineligible to serve\nnot have the effect of depriving those\nas a full-time referee in bankrupter, and\nofficers of any vested rights such as the\nthe reservist upon appointment as a I-!-\nright to retired pay or the right to have\neree may receive the civilian salary ⑆\nthat pay exempt from the dual compen-\nthat position and in addition the retired\nsation rohibitions, however where the\npay authorized by section 1331 of Title\ncomponent officer is not retired until\n10. 1000, 45 Comp.Gen. 405\n§ 5534a.\nDual employment and pay during terminal leave\nfrom uniformed services\nA member of a uniformed service who has performed active service\nand who is on terminal leave pending separation from, or release\nfrom active duty in, that service under honorable conditions may\naccept a civilian office or position in the Government of the United\nStates, its territories or possessions, or the government of the District\nof Columbia, and he is entitled to receive the pay of that office or\nposition in addition to pay and allowances from the uniformed service\nfor the unexpired portion of the terminal leave. Added Pub.L. 90-83,\n§ (22), Sept. 11, 1967, 81 Stat. 199.\nHistorical and Revision Notes\nReviser's Note. This section amends section is based on subsections (a) 120\nchapter 55 of title 5, United States Code, (f) of former : U.S.C. Gla-1 the sour \"\nby inserting a new section 5534a. This statute for which (act of No: 21, 142\n126\nFORD\nGERALD\nLIBRARY\n(h. 55\nPAY ADMINISTRATION\n5 § 5535\nrh. 189. 30 Stat. 581) was repealed by the\nOct. 10. 1963. 45 Comp.Gen. 1011.\n!\"E of September C. 1003, Public Law\nIn of the foregoing. it Is\nwith (see. S. 50 Stat. 6501. Senate 1:--\nthat subjection (2) of former : E.S.C.\n: tt ISSO, Sech Congress, section session,\nState bad prospective effect and street\npass 413, 511, explains that the source\nhave been receasted in title ;, U.S.C. 65\nterms was repoated since it had brea\nPublic Law 80-501.\nreadered obsolete by section 4(c) of the\nIn section 5504a, the words \"In member\nArmed Forces Leave Act of 1010. as\nof 2 uniformed service who has MR\nemended (ST U.S.C. 501), and section\nformed active service\" are substituted for\n213(c) of the Public Health Service Act,\n\"Ass person, who, shall have performed\n:- added August 0. 1000 (ch. 654, see. 2,\nactive service in the Armed Forces\" :-\n1.1 Stat. 420, 42 U.S.C. 210-1(c)), and\nconform to the style of title 5 and the\nthat any existing rights are preserved by\ndefinition of \"uniformed services\" in 5\nsection S of Public Law SQ-534.\nU.S.C. 2101 which is coextensive with the\nAt the time of enactment of the net of\ndefinition of \"armed forces\" in subsec-\nNovember 21, 1015, there was no author-\ntion (f) of former 5 U.S.C. 6ic-1. Rear-\nry to make lump-sum leave payments to\nganization Plan No. 2 of ITS (73 State\nmembers of the uniformed services who\n1315), effective July 13, 1045, consolidated\nwere being separated from or released\nthe Coast and Geoderic Survey and the\nfrom active duty in the uniformed serv-\nWeather Bureau to form a Rew\n:rs. Accordingly. they were placed on\nin the Department of Commerce to le\nterminal leave until the expiration of the\nknown as the Environmental Science\nnussued portion of their accumulated\nServices Administration. The words\n204 current accrued leave. and only then\n\"subsequent to May 1, 1040\" are omitted\nseparated or released. The act of No-\nas executed. The word \"territories\" is\nrember 21, 1045, in part. authorized the\nsubstituted for \"Territories\" inasmueh as\nemployment of these members during ter-\nthere now are no incorporated territories.\nminal leave and provided they were enti-\nThe words \"(including any corporation\n04 to receive, in addition to ::e pay-\ncreated under authority of an act of\nment from the employment. military pay\nCongress which is either wholly CARE\nand allowances for the unexpired portion\ntrolled or wholly owned by the Govern-\n..? the terminal leave. The Armed Forces\nment of the United States. or any Ce\nLeave Act of 1916 authorized lump-sum\npartment. agency. or establishment there-\nhave payments of unused accumulated\nof, whether or not the employees thereof\nand current accrued leave. Generally.\nare paid from funds appropriated by\nthereafter, members of the uniformed\nCongress) are omitted as included in \":I\nservices were not placed on terminal\ncivilian office or position in the Govern-\n\"wo but were separated and paid a\nment of the United States\". The word\nComp-sum leave payment. However, in\n\"ray\" is substituted for \"compensation\".\nretain instances a member may be\nEffective Date. Section effective Sent\n: and on terminal leave. Such a case\n6. 1006. for all purposes. see section 9(5)\nwas considered recently by the Comptrol-\nof Pub.L. 20-S3, set out as a note under\n:-: General of the United States (see\nsection 5102 of this title.\n$ 5535.\nExtra pay for details prohibited\n(a) An officer may not receive pay in addition to the pay for his\ncrular office for performing the duties of a vacant office as author-\nby sections 3345-3347 of this title.\nb) An employee may not receive-\n(1) additional pay or allowances for performing the duties of\nanother employee; OK\n(2) pay in addition to the regular pay received for employment\nheld before his appointment or designation as acting for or in-\nstead of an occupant of another position or employment.\nThis subsection does not prevent a regular and permanent appoint-\nby promotion from a lower to a higher grade of employment.\nFORD\n89-554, Sept. 6, 1966, 80 Stat. 484.\n127\nGERALD\nLIBRARY\nTHE WHITE HOUSE\nWASHINGTON\nNovember 6, 1975\nMEMORANDUM FOR:\nJACK MARSH\nFROM:\nPHIL BUCHEN\nSUBJECT:\nAssistant to the President for\nNational Security Affairs\nThis is to advice that an appointment by the President of an\nAssistant for National Security Affairs is not subject to Senate\nadvise and consent. Statutory foundation for the National\nSecurity Council is found in 50 U.S.C. Sec. 402. The Council\nis composed of the President, the Vice President, certain\nmembers of the Cabinet and other officials of the Federal\nintelligence community. The statute also provides that the\nCouncil shall have a staff to be headed by a civilian Executive\nSecretary who shall be appointed by the President and for the\nemployment of such additional personnel, subject to the Civil\nService Commission laws, as may be necessary to perform\nthe duties of the Council.\nSecretary Kissinger and his predecessors in the position of\nAssistant to the President for National Security Affairs did not\nserve in any position authorized by the organic act creating\nthe National Security Council. Traditionally, this position\nhas had its legal foundation in 3 U.S. C. 105 and 106 which\nauthorize the appointments of a limited number of Executive\nLevel II assistants on the immediate staff of the President.\nThe National Security Adviser's traditional function as head of\nthe staff of the National Security Council does not have a\nstatutory footing. It is therefore clear that General Scowcroft's\nappointment is not subject to Senate advice and consent.\nAttached is a copy of a recent memorandum which I provided\nto General Scowcroft which notes that his retirement at the\ngrade of Lieutenant General, prior to any appointment as\nAssistant to the President for National Security Affairs, would\nrequire Presidéntial approval and the advise and consent of\nthe Senate in accordance with 10 U.S.C. 8962. This does not FORD\napply to retirement at any rank below that of Lieutenant General. GERALE\nLIBRARY\n- 2 -\nProcedures required by Section 8962 were followed when\nGeneral Haig resigned his position as Deputy Assistant to\nthe President for National Security Affairs and became Chief\nof the White House Staff during the Nixon Administration.\nIt might be that Chairman Stennis' inquiry relating to the\nnecessity of Senate confirmation for General Scowcroft was\nbased on his recollection of the Haig retirement.\nAttachment\nFORD & LIBRARY GERALD\nTHE WHITE HOUSE\nWASHINGTON\nNovember 4, 1975\nMEMORANDUM FOR:\nGENERAL SCOWCROFT\nFROM:\nPHILIP BUCHEN\nSUBJECT:\nAssumption of the Duties of\nAssistant to the President for\nNational Security Affairs\nThis is to present my recommendation that, prior to your\nretirement from the Air Force, you should refrain from\nassuming the office or exercising the functions currently\nheld by Secretary Kissinger in his capacity as Assistant to\nthe President for National Security Affairs.\nLegal Constraints\n10 U.S.C. 973(b) derives from the Act of July 15, 1870,\nch. 294 §18, 16 Stat. 319. As most recently amended and\nrecodified, it reads:\n* * *\n\"(b) Except as otherwise provided by law, no\nofficer on the active list of the Regular Army,\nRegular Navy, Regular Air Force, Regular\nMarine Corps, or Regular Coast Guard may\nhold a civil office by election or appointment,\nwhether under the United States, a Territory\nor possession, or a State. The acceptance of\nsuch a civil office or the exercise of its\nfunctions by such an officer terminates his\nmilitary appointment. \"\nFORD it LIBRARY GERALD\n* * *\n10 U.S.C. $8911, in pertinent part, provides that the Secretary\nof the Air Force 11\nmay, upon the officer's request, retire\na regular or reserve commissioned officer of the Air Force who\nhas at least 20 years of service\n\"\nThus, if the exercise of your new duties as the successor to\nSecretary Kissinger in his capacity as Assistant to the President\nwould constitute a \"civil office\" within the meaning of 10 U.S.C.\n973(b), your acceptance of such appointment or exercise of\nthe functions of such office would have the effect of automatically\nterminating your military employment. Moreover, it would\nappear that such a termination would also have the effect of\nmaking you ineligible for military retirement benefits to which\nyou would otherwise be entitled under 10 U.S.C. $8911.\nDiscussion\nThe term \"civil office\" as used in 10 U.S.C. 973(b) and\npredecessor statutes has not been statutorily defined. It is a\nterm of variable meaning, the connotation of which changes\nwith the context in which it is used. Morganthau v. Barrett,\n108 F. 2d 481, 483 (D. C. Cir. 1939). The meaning to be given\nthe term when used in a statute should be that which will\neffectuate the purposes of the statute being construed. See,\ne.g., Pardon V. Puerto Rico ex rel. Castro, 142 F. 2d 508,\n510 (1st Cir. 1944).\nFrom the debate on the floor of the Senate in 1870 regarding\nthe antecedent of section 973(b), it appears that the primary\nconcern of the Congress was the exercise of civil authority by\nmilitary officers. CONG. GLOBE, 41st Cong., 2d Sess.\n3393-3404 (1870). To this end, the Congress sought to prevent\n\"the union of the civil and the military authority in the same\nhands, \" id. at 3401, in part because it was concerned that a\nmilitary officer exercising such authority would be subject to\nthe commands of his military superiors. The Congress did\nnot intend to prevent civilian officials from seeking advice or\nadministrative assistance from military officers. See, id.\nat 3403 (remarks of Sen. Trumbull).\nThe Comptroller General has consistently required that the\nfollowing three criteria must be present to constitute such a\n\"civil office\":\nFORD & LIBRARI 0ERALD\n- 3 -\nThe specific position must be created by law,\nthere must be certain definite duties imposed\nby law on the incumbent, and they must\ninvolve the exercise of some portion of the\nsovereign power [44 Comp. Gen. 830,\n832 (1965)].\n* *\nAn application of these criteria to the facts in the instant case\nleads to the following conclusions.\nFirst, it appears that your position as Assistant to the President\nfor National Security Affairs would be one \"created by law\". For\nat least the last 15-20 years, the position of national security\nadviser has been one on the immediate staff of the President\nunder 3 U.S.C. $106. Additionally, your de facto function would\ninvolve management of the staff of the National Security Council,\ncreated by 50 U.S.C. 8402.\nSecond, it also appears that the position would include \"certain\ndefinite duties imposed by law on the incumbent\", viz. \"\nsuch duties as the President may prescribe. \" (3 U.S.C. §106)\nThird, and most importantly, the position likely would be held\nto \"involve the exercise of some portion of the sovereign power. \"\nGiven the concerns of the drafters of 10 U.S.C. §973(b) for\ncivilian independence from military authority, this would seem\nto be the most important touchstone of the three under discussion.\n3 U.S.C. §107 provides authority for the detail of military\nofficers to the White House in order to provide advice on military\nmatters or administrative assistance. This authority has\ntraditionally been asserted as a basis for the detail of officers\nfor service as White House military aides and for the detail\nof a Deputy Assistant to the President for National Security\nAffairs. In these instances, the theory is that such detailees\nare limited to providing administrative support or advice\nlimited to military matters. On the other hand, the President\nprincipal national security adviser has traditionally been\nresponsible for eliminating or minimizing differences of\nopinion between the Departments of State and Defense and other\nRALD LIBRARY\n- 4 -\ninterested agencies, with a right of direct access to the\nPresident.\nRecommendation\nThe Attorney General and the Acting General Counsel of the\nDepartment of Defense agree with my conclusion that, given\nthe substantial risks involved, i.e. loss of your military\nretirement and other military privileges, you are best\nadvised to resign your commission in the Air Force prior to the\nacceptance of an appointment as Assistant to the President for\nNational Security Affairs or the assumption of any duties of\nthat office.\nIn closing, I should also note that retirement at the grade of\nLieutenant General would require Presidential approval and\nthe advice and consent of the Senate [10 U.S.C. 8962]. This\ndoes not apply to retirement at any rank below that of Lieutenant\nGeneral.\n#\nFORD i LIBRARY GERALD\nTHE WHITE HOUSE\nWASHINGTON\nNovember 5, 1975\nMEMORANDUM FOR:\nPHIL BUCHEN\nFROM:\nSUBJECT:\nJACK Senator MARSH July\nI met with Senator Stennis this afternoon and he was of the\nimpression that the National Security Council post, which\ninvolves Brent, was made a confirmable position by changing\nthe law sometime within the last two years.\nHe asked me if I would check on this for him.\nI would appreciate your looking into this.\nFORD : LIBRARY PERALD\nScoucept\nInv. Regretted\nThursday 11/20/75\n11/20/75\n6:30 p.m. m.\n6:15 You were invited to Gen. Scowcroft's \"signing ceremony\"\nat 6:30 p.m. P. Sorry they couldn't have given more\nnotice but it was the first opportunity the General had.\nTold them we knew you were sorry you couldn't be there.\nFORD is LIBRARY 078870\nqva\nMEMORANDUM\nOF CALL\nTO:\nYOU WERE CALLED BY-\nYOU WERE VISITED BY-\n6'5 - haura- - ben Scaweraft's\nOF (Organization)\nofc called\nPHONE NO.\nPLEASE CALL\nCODE/EXT.\nWILL CALL AGAIN\nIS WAITING TO SEE YOU\nRETURNED YOUR CALL\nWISHES AN APPOINTMENT\nMESSAGE\nSen. S cow craft\nselt\ninvited Mr Buchen\nto his\" signing ceremony\"\nat 630- - Thursday. (over) FOR\nRECEIVED BY\nDATE\n119\nTIME\nAU\nSTANDARD FORM 63\nGPO :1969-c48-16-80341-1 : 332-889\n63-108\nREVISED AUGUST 1967\nGSA FPMR (41 CFR) 101-11.6\nNEWOWVUDON\nCAJJ 70\nand\n:OT\nShe's sorry she\n-Y8 OFFICER 383W UOY\nAVRIE CVITED\ncouldn't give was\n(eollexinsg10) 10\nmore note ie,\nbut this ЭЙО is the 38A3J9\nUOY 338 oT DHITIAW 21\nMIADA LIAO JJIW\nfirst apportunity UT3R\n83M\nthe General has had. C.md\nreibud James\nmanered 'aid at\n(rebo probamit cita OEd to\n3MIT\nOF\n3TAG\nYe\n301-80\n88 мяоч GRAGNATE\nTaes TZUDUA G381V38\nIN) SM97 A20\nTHE WHITE HOUSE\nMarsh\nWASHINGTON\nFebruary 24, 1976\nJohn\nMEMORANDUM FOR:\nJACK MARSH\nTHROUGH:\nPHIL BUCHEN\nP.\nFROM:\nKEN LAZARUS P\nIn response to your inquiry of February 17, this is to advise that\nwe see no objection to your acceptance of a position on the Board\nof Visitors at Virginia State College. However, we would suggest\nthe inclusion of a statement in your letter of acceptance along the\nfollowing lines:\n*****\n\"Although I may be compelled to rescuse myself from\ncertain individual matters which may come before the\nBoard from time to time based on my responsibilities\nin government, I trust that these instances will be few\nin number and will not affect my ability to be of some\nservice to the school. \"\n*****\nSuch a caveat would recognize that you would be precluded from\nparticipating as a Board member in matters requiring Federal\ngovernment action. Additionally, in your role as a government\nofficial you should avoid participating personally and substantially\nin matters directly affecting the college, e.g., a government\ngrant to the institution.\nI trust this satisfies your inquiry.\nFORD : 033470 LIBRARY\nTHE WHITE HOUSE\nWASHINGTON\nFebruary 17, 1976\nMEMORANDUM FOR: PHIL BUCHEN\nFROM:\nJACK MARSI July\nI have been asked about the possibility my availability to\nserve on the Board of Visitors at a State College in Virginia.\nIs there any problem in connection with this?\nMany thanks.\nFORD is LIBRARY GERALD"
}