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Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Chronological Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: Chron File (01/11/1984-01/16/1984)
Box: 62
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection.
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
IGP
8/5/2005
File Folder
CHRON FILE (01/11/1984 01/16/1984)
FOIA
F05-139/01
Box Number
COOK
411GP
DOC
Doc Type
Document Description
No of Doc Date Restrictions
NO
Pages
1 MEMO
ROBERTS TO FIELDING RE JAMES
2 1/12/1984 B6
648
STEIGLITZ (PARTIAL)
2 MEMO
ROBERTS TO HOLLAND RE
1 1/16/1984 B6
649
PRESIDENT'S ADVISORY COMMITTEE
ON WOMEN'S BUSINESS OWNERSHIP
(PARTIAL)
COPY Reagan Presidential Record
Freedom of Information Act [5 U.S.C. 552(b)]
B-1 National security classified Information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted Invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial Institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
E.O. 13233
C. Closed in accordance with restrictions contained in donor's deed of gift.
THE WHITE HOUSE
WASHINGTON
January 11, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS ord
SUBJECT:
Presidential Taping: National
Association of Homebuilders
Thursday, January 12, 1984
Richard Darman has asked that comments on the above-
referenced remarks be sent directly to Ben Elliott by noon
today. The remarks review the progress of the economic
recovery and the role of the homebuilding industry in
fueling that recovery. I have reviewed the brief remarks
and have no objections, other than to note that a word is
missing on page 2, at line 10.
Attachment
THE WHITE HOUSE
WASHINGTON
January 11, 1984
MEMORANDUM FOR BEN ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PRESIDENTIAL SPEECHWRITING OFFICE
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Presidential Taping: National
Association of Homebuilders
Thursday, January 12, 1984
Counsel's Office has reviewed the above-referenced remarks,
and finds no objection to them from a legal perspective. I
would note, however, that a word appears to be missing on
page 2, at line 10, between "in" and "were."
CC: Richard G. Darman
FFF:JGR:aea 1/11/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
January 11, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Letter to Vice President on
Constitutional Convention
Eugene J. McMahon of the Long Island Coalition for Life has
written the Vice President, arguing that the prerequisites
for a Constitutional Convention under Article V of the
Constitution have been satisfied. Article V provides in its
entirety:
The Congress, whenever two thirds of both Houses
shall deem it necessary, shall propose Amendments
to this Constitution, or on the Application of the
legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments,
which, in either Case, shall be valid to all Intents
and Purposes, as Part of this Constitution, when
ratified by the Legislatures of three fourths of the
several States, or by Conventions in three fourths
thereof, as the one or the other Mode of Ratification
may be proposed by the Congress; Provided that no
Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner
affect the first and fourth Clauses in the Ninth
Section of the first Article; and that no State,
without its Consent, shall be deprived of its equal
Suffrage in the Senate (emphasis supplied).
Thirty-two of the required thirty-four states have filed an
application requesting an Article V convention to propose a
balanced budget amendment. Twenty states have filed
applications for such a convention to propose an abortion
amendment. When the applications on these two subjects are
combined, they are from thirty-four different states.
McMahon argues that thirty-four states have accordingly
called for an Article V convention, and one must be held.
He asks the Vice President to introduce an official call for
such a convention in the Senate, and inquires if the Vice
President would be a plaintiff in a mandamus action to
compel Congress to call an Article V convention. McMahon
reasons that this would help resolve potential "standing"
difficulties.
- 2 -
There are no clear answers to questions concerning
Article V, since that route for amending the Constitution
has never been taken. A published 1979 Opinion for the
Attorney General by the Office of Legal Counsel, however,
concluded that Congress should only count similar
applications in determining if an Article V convention
should be called. 3 Ops. O.L.C. 390, 406-407. This view
seems to be supported by the history surrounding the
adoption of Article V, and by the vast majority of
commentators. The other conclusion of the OLC opinion --
that an Article V convention once called would be limited,
and could only consider amendments on the subject of the
call -- is less supported and less widely shared,
particularly by those who remember the history of the
original Constitutional Convention, which was called "for
the sole and express purpose of revising the Articles of
Confederation." Once convened the Framers, of course, went
far beyond this limited mandate.
I do not, however, think we should respond to McMahon by
rejecting his legal theory.
The Framers devised the Article V amendment route to provide
the States a means of amending the Constitution in the face
of an unwilling Congress. Most commentators and the
American Bar Association agree that the President has no
formal legal role in the convention amendment process, as he
has no such role in the more traditional amendment process,
see Special Constitutional Convention Study Committee, ABA,
Amendment of the Constitution by the Convention Method Under
Article V, 25-28 (1974). Accordingly, I consider it
gratuitous and unwise for the Executive Branch to opine on
what is properly characterized as a legal dispute between
the States and the Legislative Branch, and recommend against
telling McMahon that we do not agree with his legal theory.
We should, of course, decline McMahon's request for
involvement by the Vice President, but not because we
disagree with his legal theory. The introduction of a
resolution is beyond the enumerated and historic powers of
the Vice President as President of the Senate. Those powers
include only the Constitutional power to break ties,
Article I, section 3, and various other powers conferred by
statute. The Vice President does not even participate in
debate in the Senate, and only addresses the Senate by
unanimous consent. See Senate Procedure, Precedents, and
Practices 1120-1126 (1981). For these reasons, we should
decline McMahon's request that the Vice President introduce
a resolution calling for an Article V convention. For the
same reasons, and because the Executive Branch has no formal
- 3 -
legal role in the amendment process, we should also decline
the request that the Vice President participate as a
plaintiff in McMahon's contemplated mandamus action.
The attached draft reply is for C. Boyden Gray's signature.
The letter was addressed to the Vice President and raised
legal issues and accordingly is appropriately answered by
the Vice President's Counsel. This also helps maintain some
distance from the President on this sensitive question. The
attached proposed cover memorandum transmits the draft reply
to Gray, Steve Rhodes, who sent the matter to us in the
first place, and Ted Olson, whose views should be obtained
before proceeding with the reply.
Attachment
THE WHITE HOUSE
WASHINGTON
January 11, 1984
MEMORANDUM FOR C. BOYDEN GRAY
J. STEVEN RHODES
THEODORE B. OLSON
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Letter to Vice President on
Constitutional Convention
Steve Rhodes asked for our views on the attached letter to
the Vice President from Eugene J. McMahon. Mr. McMahon
argued that Congress was under a present obligation to call
a constitutional convention pursuant to Article V, since
two-thirds of the states have applied for such a convention
(albeit on different topics). He asked if the Vice
President would (1) agree to be a plaintiff in a mandamus
action against Congress and (2) introduce a resolution
calling for an Article V convention in the Senate.
A 1979 opinion prepared by the Justice Department Office of
Legal Counsel concludes that Mr. McMahon's theory is unsound
and that Congress need only count similar applications in
determining if two-thirds of the States have requested an
Article V convention. 3 Ops. O.L.C. 390, 406-407. I do
not, however, think it wise for the Executive Branch to
opine gratuitously on controversies, such as disputes over
the meaning and scope of Article V, that are essentially
between the states and the Congress. The attached proposed
reply thus declines Mr. McMahon's request not because his
legal theory is unsound on the merits (as I agree it is) but
because (1) the Executive has no formal legal role in the
Article V process and (2) the introduction of a resolution
in the Senate goes beyond the enumerated and historic
prerogatives of the Vice President as President of the
Senate.
I believe the reply would most suitably be sent over Boyden
Gray's signature. Any comments would be appreciated.
Attachment
FFF:JGR:aea 1/11/84
cc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
January 11, 1984
Dear Mr. McMahon:
Thank you for your letter of December 4, 1983 to the Vice
President. In that letter you advanced the theory that
Congress was presently required to call a convention under
Article V to propose amendments to the Constitution, since
applications for such a convention on the subject of a
balanced budget and on the subject of abortion, when
coupled, are from thirty-four different states. You asked
whether the Vice President would participate as a plaintiff
in a mandamus action to compel Congress to call a convention
pursuant to Article V, and also requested that the Vice
President, as President of the Senate, introduce an official
call for such a convention.
This Administration is clearly on record as favoring both a
balanced budget amendment and an amendment to protect the
unborn. The convention method of proposing amendments
established by Article V has never been tried, however, and
accordingly is rife with legal uncertainties. One thing
that does seem clear is that the Executive branch has no
formal legal role to play in the process, just as the
Executive branch has no formal legal role in the other, more
traditional method of proposing amendments to the Constitu-
tion. See Hollingsworth V. Virginia, 3 Dall. 378 (1798).
Nor would the introduction of a call for an Article V
convention fall within the enumerated or traditional
prerogatives of the Vice President as President of the
Senate. For these reasons it seems inappropriate for the
Vice President to attempt to introduce such a call, or to
participate in litigation over whether Congress must at this
time call a convention for the purpose of proposing
amendments pursuant to Article V.
We do, however, appreciate having the benefit of your
considered views on this subject. Our inability to accede
to your request that the Vice President introduce an
official call for a convention in the Senate or participate
- 2 -
as a plaintiff in a private legal action on this question
should in no way be taken as evidence of a diminution in our
desire to see amendments providing for a balanced budget and
protection for the unborn added to the Constitution.
Sincerely,
C. Boyden Gray
Counsel to the Vice President
Mr. Eugene J. McMahon
Long Island Coalition for Life
Post Office Box 600
North Bellmore, NY 11710
CBG:JGR:aea 1/11/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
January 11, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 828
SUBJECT:
Request for OLC Opinion on Legal
Services Appropriations Bill
Attached, as you requested, is a memorandum for your
signature, requesting an OLC opinion on the "Weicker
Amendment" to the Legal Services Corporation appropriations
bill.
Attachment
THE WHITE HOUSE
WASHINGTON
January 11, 1984
MEMORANDUM FOR THEODORE B. OLSON
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL COUNSEL
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Restriction in Legal Services Corporation
Appropriations Bill
When the President signed Public Law 98-166, the Department
of Justice and Related Agencies Appropriation Act, he
expressed reservations concerning the provision freezing the
level of grants from the Legal Services Corporation in the
absence of action taken by directors confirmed by the
Senate. As you know, the President stated that this
provision:
raises troubling constitutional issues with
respect to my recess appointments power. The
Attorney General has been looking into this
matter at my request and will advise me on how
to interpret this potentially restrictive condition.
We understand that your office has been examining this
question, and we would now like to request your opinion on
it.
FFF: JGR:aea 1/11/84
CC: FFFielding/JGRoberts/Subj/Chror
THE WHITE HOUSE
WASHINGTON
January 11, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
82R
SUBJECT:
Presidential Tapings 1) Health Insurance
Association of America's "Wellness and the
Bottom Line"
Richard Darman has asked that comments on the above-
referenced remarks be sent directly to Ben Elliott by noon
today. The brief remarks commend the insurance industry for
conducting a conference on employee health, and urge
executives to take the lead in promoting greater health
awareness among employees. Cigarette smoking is singled out
as a bad habit with adverse health effects. I have reviewed
the remarks and have no objections.
Attachment
THE WHITE HOUSE
WASHINGTON
January 11, 1984
MEMORANDUM FOR BEN ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PRESIDENTIAL SPEECHWRITING OFFICE
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Presidential Tapings 1) Health Insurance
Association of America's "Wellness and the
Bottom Line"
Counsel's Office has reviewed the above-referenced remarks,
and finds no objection to them from a legal perspective.
CC: Richard G. Darman
FFF:JGR:aea 1/11/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
January 12, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 820
COPY Reagan Presidential Record
SUBJECT:
James E. Steiglitz
James E. Steiglitz is a former Special Forces medic, son of
a famous New York photographer, and a free-lance photo-
grapher himself. In a private capacity Steiglitz used his
medical background to gain access to areas in Nicaragua
where Miskito Indians were being held, taking photographs
not only of their deplorable conditions but also of
significant strategic locations such as military
installations and oil refineries. Steiglitz, through his
attorney William J. Olson, maintains that two NSC staff
members, Oliver North and Alfonso Sapia-Bosch, and two
unidentified CIA agents, ordered him to obtain profes-
sional quality enlargements of some of the photographs.
Steiglitz did so, allegedly at a cost of $10,970.17, and now
wants reimbursement.
66
and threatened litigation if the matter is not resolved
quickly, warning that during such litigation it may be
necessary to disclose sensitive and embarrassing security-
related information.
I discussed the matter with Bob Kimmitt, Paul Thompson,
North, and Sapia-Bosch. North and Sapia-Bosch provided
statements to Thompson, which are attached. According to
North, Steiglitz came to him with the photographs in early
July. North ascertained from DIA that the photographs
lacked intelligence value, but he did tell Steiglitz that a
larger copy of one of the photographs, of a malnourished
Miskito child, would be useful. Steiglitz returned with an
enlargement, which he provided to North along with several
other photographs, on the condition that North not publish
the prints and give Steiglitz credit whenever they were
used. North gave Steiglitz a signed note embodying these
conditions, without retaining a copy. North has used the
photograph in briefings, always giving Steiglitz credit.
North asserts that he never discussed paying Steiglitz for
anything, and did not imply in any way that Steiglitz would
be paid.
According to Sapia-Bosch, Steiglitz approached him when
North was away from the office. Sapia-Bosch reviewed the
- 2 -
photographs and told Steiglitz that they were of bad
quality. Steiglitz asked if Sapia-Bosch would be interested
if he could get better copies, to which Sapia-Bosch replied
that he would. Sapia-Bosch was later given some 30
photographs by Steiglitz, which he has retained but never
used. In response to Steiglitz's repeated inquiries,
COPY Reagan Presidential Record
Sapia-Bosch told him he would try to help him obtain money
from private sources. Sapia-Bosch did so, unsuccessfully.
Sapia-Bosch asserts that he never promised Steiglitz
payment.
Steiglitz's version of the facts is different from the
foregoing. In Steiglitz's version North and Sapia-Bosch
"order" enlargements of various prints, saying such things
as that expenses "will be taken care of" and that "two guys
will be calling with the money." Assuming the accuracy of
the North/Sapia-Bosch version, it seems that the case comes
down to Steiglitz interpreting North's and Sapia-Bosch's
statements that something would be "useful" as an order for
that to be done, with reimbursement for expenses to follow.
This may have been naive on Steiglitz's part, but it also
strikes me as disingenuous for North and Sapia-Bosch to
claim they never Implied they would cover Steiglitz's costs
when they did tell him that they would "like" certain things
and that certain things would be "useful." My impression is
that anyone dealing with Steiglitz would know that he could
easily misinterpret such remarks. In the case of the
photograph of the Miskito child, Steiglitz at least has
something of a quantum meruit claim, since that enlargement
has been used extensively by the Administration. I would
not be averse to offering Steiglitz his expenses associated
with that enlargement and, pending more precise information
on what photographs were given to Sapia-Bosch after he said
he would like better copies, perhaps the expenses associated
with those as well. This would be far less than the $11,000
demanded by Steiglitz, but may be enough to settle the
claim, particularly since Steiglitz would have great
difficulty prevailing in court on a theory of implied
contract with the Government.
Paul Thompson is checking to determine if NSC has authority
to provide any money to Steiglitz. If such authority
exists, I would recommend telling NSC that we think it
advisable to try and settle the claim for an amount equal to
or less than the documented expenses Steiglitz incurred to
obtain items North and Sapia-Bosch indicated they would
"like" to have, and then retained. Presumably actual
negotiations would be handled by NSC and/or OA rather than
our office.
THE WHITE HOUSE
WASHINGTON
January 12, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Draft Presidential Radio Talk:
National Bipartisan Commission
on Central America --
(January 12 -- 1:30 p.m. draft)
Richard Darman has asked that we provide comments directly
to Ben Elliott by 4:00 p.m. today on the above-referenced
draft radio address. In the remarks the President announces
his decision to recall our Ambassador to Nicaragua, expel
the Nicaraguan Ambassador the United States, and suspend all
trade with Nicaragua, in response to the killing of Warrant
Officer Jeffrey Schwab. These actions are to remain in
effect until the killing is investigated and we receive an
explanation and apology.
In the rest of the remarks the President reviews the work of
the Kissinger Commission, and announces that he will send to
Congress a comprehensive plan to achieve the Commission's
objectives. The plan is to be known as the Jackson Plan,
after the late Senator.
Serious legal questions are raised by the proposal to
suspend all trade with Nicaragua. This can only be
accomplished under the International Emergency Economic
Powers Act ("IEEPA"), 50 U.S.C. §§ 1701 et seq. Exercise of
authority under IEEPA must be predicated on an "unusual and
extraordinary threat, which has its source in whole or
substantial part outside the United States, to the national
security, foreign policy, or economy of the United States,
if the President declares a national emergency with respect
to such threat."
I have alerted Paul Thompson of NSC to this fact, and noted
that if the remarks remain in their present form, NSC must
be prepared to recommend the declaration of a national
emergency under IEEPA. He indicated that he would review
the problem. It should also be noted that 50 U.S.C.
§ 1703 (a) requires that the President consult with Congress,
if possible, before exercising his authorities under IEEPA,
and 50 U.S.C. § 1703 (b) requires an immediate report to
Congress whenever the President does exercise those
authorities.
- 2 -
A memorandum highlighting these concerns is attached for
your review and signature.
Attachment
THE WHITE HOUSE
WASHINGTON
January 12, 1984
MEMORANDUM FOR BEN ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PRESIDENTIAL SPEECHWRITING OFFICE
FROM:
FRED. F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft Presidential Radio Talk:
National Bipartisan Commission
on Central America --
(January 12 -- 1:30 p.m. draft)
Counsel's Office has reviewed the above-referenced draft
remarks. The proposed announcement of the suspension of all
trade with Nicaragua raises serious legal issues. Such
action may only be taken under the International Emergency
Economic Powers Act ("IEEPA"), 50 U.S.C. §§ 1701 et seq.,
and must be predicated upon a declaration of a national
emergency. My office has raised this concern with NSC, and
advised NSC that the proposed announcement should remain in
the remarks only if NSC is prepared to recommend that the
President declare the existence of a national emergency
under IEEPA. IEEPA requires that any such declaration be
based on an "unusual and extraordinary threat, which has its
source in whole or substantial part outside the United
States, to the national security, foreign policy, or economy
of the United States
"
It should also be noted that 50
U.S.C. § 1703 (a) requires that the President consult with
Congress before exercising his authorities under IEEPA, if
possible, and that 50 U.S.C. § 1703 (b) requires an immediate
report to Congress whenever the President exercises those
authorities.
CC: Richard G. Darman
Robert Kimmitt
Paul Thompson
FFF: JGR:aea 1/12/84
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
January 12, 1984
MEMORANDUM FOR NANCY PALMER
STAFF ASSISTANT
LEGISLATIVE AFFAIRS
FROM:
JOHN G. ROBERTS
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Anti-Nepotism Statute
As we discussed, I am attaching a copy of the anti-nepotism
statute, 5 U.S.C. § 3110. I should point out that the
statute has, over the years, been interpreted by the courts,
the Department of Justice, other federal agencies, and this
office. In light of this fact, it would be imprudent to
rely on a reading of the statute without consulting this
office. Please do not hesitate to let us know if we may be
of any assistance.
Attachment
THE WHITE HOUSE
WASHINGTON
January 12, 1984
MEMORANDUM FOR ANNE HIGGINS
SPECIAL ASSISTANT TO THE PRESIDENT
DIRECTOR OF CORRESPONDENCE
FROM:
JOHN G. ROBERTS Q26
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed Endorsement by President
of the Efforts of the "Friends
of the William Howard Taft Birthplace"
You have asked for our views on a proposed message from the
President endorsing the efforts of the "Friends of the
William Howard Taft Birthplace." We have reviewed the
proposed message, and the related materials, and have no
objections.
Thank you for raising this question with US.
THE WHITE HOUSE
WASHINGTON
January 9, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
822
SUBJECT:
Portal to Portal Transportation
Mike Horowitz, purportedly at the behest of Joe Wright, is
pressing for a decision on how to respond to the June 3,
1983, Comptroller General opinion on 31 U.S.C. § 1344, the
portal to portal statute. Horowitz first raised this issue
in November, at which point we discussed it in a general way
but reached no resolution.
You will recall that the Comptroller General opinion
concluded that the interpretation of 31 U.S.C. § 1344 by
most agencies was too permissive, and that many Executive
Branch officials who now receive Government-provided
transportation between home and work were not legally
entitled to the service. Recognizing that agencies may have
relied on apparent Congressional acquiescence in a broader
view of 31 U.S.C. § 1344, as well as "dicta" in earlier GAO
decisions, the opinion noted that GAO would not seek
reimbursement for past portal to portal misuse of vehicles
and would apply the restrictive reading of the statute only
after the close of the current Congress. GAO recommended
that Congress consider clarifying legislation on this topic
in the interim.
Horowitz has been advised that GAO has fixed the date for
enforcement of the opinion at the time Congress adjourns for
the elections, probably in early October. His concern is
that unless action is taken GAO may create an election eve
issue by enforcing the statute against political appointees
in October. Horowitz recommends initiating negotiations
with the Comptroller General and Congressman Jack Brooks on
a broad portal to portal bill that would provide such
transportation to all senior EOP officials, Cabinet
officers, and others down to Undersecretary or comparable
rank. He considers the issue urgent since such legislation,
to have any chance of passage, would have to be acted upon
well in advance of the election.
In my view, an Administration initiative for expanded portal
to portal authority would be just as politically costly as
the potential actions for reimbursement feared by Horowitz.
If Congress is willing to enact clarifying legislation, as
- 2 -
recommended by GAO, we should not block it, but I do not
think we should take an affirmative, leading role in an
effort to obtain such legislation, as recommended by
Horowitz. The problem envisioned by Horowitz --
reimbursement actions on election eve -- can be readily
avoided by following GAO's restrictive interpretation of
31 U.S.C. § 1344, at least for the relatively brief period
between the close of Congress and the election. After that
we can consider whether to seek legislation, to disagree
with the GAO opinion and act on one of our own, or simply to
follow a more restrictive portal to portal practice for the
second term. In sum, I do not share Horowitz's sense of
urgency, nor do I concur in his view that we should take
affirmative steps to secure "corrective" legislation.
THE WHITE HOUSE
WASHINGTON
January 13, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS or
SUBJECT:
Arthur Goldberg Correspondence on Grenada
Former Supreme Court Justice Arthur Goldberg is associated
with an organization known as the Historic Southern Tenant
Farmers Union. That organization is supporting an effort to
impeach the President over the alleged unconstitutionality
of the rescue mission in Grenada. Goldberg has written the
co-founder of the organization, H.L. Mitchell, protesting
the organization's stance on Grenada and disassociating
himself from it. Goldberg sent a copy of his letter to
James A. Baker III, who has referred it to you for
appropriate action.
In his letter to Mitchell Goldberg notes that he has
expressed grave doubt over the constitutionality of the
invasion, in light of the fact that only Congress may
declare war. He goes on to state, however, that the
invasion was a great success, permitting Grenada to resume
an orderly path to democratic self-government. With respect
to the law, he argues that a good faith exercise of
Executive power that turns out to be a violation of the
Constitution is not grounds for impeachment, citing
Lincoln's suspension of habeas corpus during the Civil War
and Truman's seizure of the steel mills. Both actions were
struck down by the Supreme Court, but neither led to calls
for impeachment. (In the case of Lincoln, Goldberg's logic
is something less than pristine: Ex parte Milligan, 4 Wall.
2, 139 (1866), concluding that Lincoln's action violated the
Constitution, was decided several months after Lincoln was
assassinated, so it could hardly have been the basis of
calls for his impeachment.) Goldberg concludes that even if
the Grenadian action was unconstitutional, the President
should not be impeached because he "acted in good faith and
in the belief that this served our national interest."
In our reply we should thank Goldberg for defending the
President but at the same time note that we do not share his
doubts concerning the constitutionality of the invasion.
Goldberg is correct that the Constitution vests the
authority to declare war in the Congress, Article I,
section 8. The President, however, also has inherent
authority in the international area to defend American lives
- 2 -
and interests and, as Commander-in-Chief, to use military
force in doing SO. This has been recognized at least since
the time President Jefferson sent the Marines to the shores
of Tripoli. While there is no clear line separating what
the President may do on his own and what requires a formal
declaration of war, the Grenada mission seems to be clearly
acceptable as an exercise of executive authority,
particularly when it is recalled that neither the Korean nor
Vietnamese conflicts were declared wars. A draft reply is
attached, which notes our disagreement without extended
analysis.
Attachment
THE WHITE HOUSE
WASHINGTON
January 13, 1984
Dear Mr. Justice:
Thank you for your letter of January 10 to James A. Baker
III, which Mr. Bakec has referred to me for consideration
and reply. Along with that letter you enclosed : copy of a
letter you wrote to Mr. H.L. Mitchell, co-founder of the
Historic Southern Tenant Farmers Union. In that letter you
disassociated yourself from the efforts of the Historic
Southern Tenant Farmers Union to impeach the President over
his recent actions with respect to Grenada.
We approciate the supportive comments in your letter, and
are grateful that you took the time and initiative
responsibly to disassociate yourself from the misguided
effort to impeach the Pre ident. The President's actions in
Grenada not only protected American lives but also restored
to the people of Grenada the opportunity for democracy. The
mission was in every sense a rescue mission, rescuing not
only the endangered American medical students but also the
future of liberty in Grenada.
I must, however, respectfully note hat I do not share your
doubts concerning the constitutionality of the rescue
mission. There are, of course, few clear guideposts in
confronting what the Suprame Court has referred to as "the
never-ending tension between the President exercising the
Executive authority in a world that presents each day some
new challenge with which he must deal and the Constitution
under which we all live and which no one disputes embodies
some sort of system of checks and balances." Dames & Moore
V. Regan, 453 U.S. 654, 662 (1981). Indued, in the opinion
just cited, the Court was compelled to reiterate Justice
Jackson's observation thirty years earlier, in the historic
case in which you so prominently participated, concerning
"the poverty of really useful and unambiguous authority
applicable to concrete problems of Executive power as they
actually present themselves. Id., at 660, quoting
Youngstown Sheet S Tule Co. V. Sawyer, 343 U.S. 579, 634
(1952) (concurring opinion).
While the Constitution doe: confer on Congress the author-
ity to declare war, it has also long been recognized that
the President has certain inherent authority in inter-
national affairs to take action to protect American lives
and defend American interests and, as Commander-in-Chief,
to use the military when necessary in discharging these
- 2. ****
responsibilities. There is no clear line demarking the
authority of the President and the authority of Congre 3S in
this area, but it seems clea to me that the exercise of
Executive authority in connection with Grenada falls
comfortably on the legitimate side of th line.
We do appreciate having the benefit of your considered and
informed views on this subject. Onc. again, thank you for
your supportive comments. They mean a great deal to us.
With best wishes,
Sincerely,
Fred F. Fielding
Counsel to the President
The Honorable Arthur J. Goldberg
2801 New Mexico Avenue, N.W.
Washington, D.C. 20007
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THE WHITE HOUSE
WASHINGTON
January 13, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
820
SUBJECT:
Presidential Radio Talk: National
Bipartisan Commission on Central
America -- Saturday, January 14, 1984
(1/12/84 -- 7:00 p.m. draft)
Richard Darman has asked that comments on the above-
referenced draft, which has gone forward to the President,
be sent directly to Ben Elliott by 10:00 a.m. today. This
is a revised version of the draft which we reviewed last
evening. Our main concern with the earlier draft was the
announcement of suspension of all trade with Nicaragua,
since it appeared that insufficient attention had been paid
to what would be required under the International Emergency
Economic Powers Act, 50 U.S.C. §§ 1701 et seq., to achieve
that objective. This draft omits any announcement of
suspension of trade and also deletes the originally proposed
recall of our Ambassador to Nicaragua and eviction of their
Ambassador to the United States. The draft is otherwise
substantially unchanged. I have no objections.
Attachment
THE WHITE HOUSE
WASHINGTON
January 13, 1984
MEMORANDUM FOR BEN ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PRESIDENTIAL SPEECHWRITING OFFICE
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Presidential Radio Talk: National
Bipartisan Commission on Central
America -- Saturday, January 14, 1984
(1/12/84 -- 7:00 p.m. draft)
Counsel's Office has reviewed the above-referenced revised
draft, and finds no objection to it from a legal
perspective.
CC: Richard G. Darman
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THE WHITE HOUSE
WASHINGTON
January 13, 1984
MEMORANDUM FOR DIANNA G. HOLLAND
FROM:
JOHN G. ROBERTS
8th
SUBJECT:
Appointment of Robert H.B. Baldwin
to the President's Commission on
Industrial Competitiveness
The President's Commission on Industrial Competitiveness was
established by Executive Order 12428 (June 28, 1983). The
purposes of the Commission are to review means of increasing
the competitiveness of United States industry, with
particular emphasis on high technology, and provide
appropriate advice to the President. The Commission was
established in such a fashion that its members from the
private sector would not be considered government employees
for purposes of the conflicts laws. Thus, members are not
paid for their services and those from the private sector
"shall represent elements of industry, commerce, and labor
most affected by high technology, or academic institutions
prominent in the field of high technology." Under the
Executive Order, members must also "have particular
knowledge and expertise concerning the technological factors
affecting the ability of United States firms to meet
international competition at home and abroad."
Mr. Baldwin retired as Chairman of the Board of Morgan
Stanley Inc. on December 31, 1983, but will continue as a
consultant to Morgan Stanley during his retirement. His
education and experience satisfy the expertise requirements
of the Executive Order, and both his prior service and
continuing association with Morgan Stanley permit him to be
considered representative of an element of commerce deeply
affected by high technology. In light of the structure of
the Advisory Committee, Mr. Baldwin's associations and
holdings do not represent a conflict of interest. I have
reviewed Mr. Baldwin's PDS and have no objection to
proceeding with this appointment.
Attachment
THE WHITE HOUSE
WASHINGTON
January 13, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
are
SUBJECT:
FOIA Request
A New York law firm has sent an FOIA request to the
President, seeking documents pertaining to a Jobs Corps
Program Center in the South Bronx. According to the
request, the documents would be from the Carter years.
I recommend our usual response, that the White House Office
is not subject to FOIA. I do not recommend any referral to
the Carter people, since I think it is important for us to
stay as completely out of the FOIA business as possible. If
the requestors want to pursue the matter with the Carter
archives people they are free to do so, but we should not
become involved as a middle-man.
Attachment
THE WHITE HOUSE
WASHINGTON
January 13, 1984
Dear Mr. Unger:
This is written in response to your letter to the President
of December 12, 1983. In that letter you requested,
pursuant to the Freedom of Information Act, certain
documents pertaining to the South Bronx Jobs Corps Center.
Please be advised that the White House Office, "whose sole
function is to advise and assist the President," is not an
agency subject to the Freedom of Information Act. Kissinger
v. Reporters Committee for Freedom of the Press, 445 U.S.
136, 156 (1980). Accordingly, we are not in a position to
respond to your Freedom of Information Act request, and must
respectfully decline.
Sincerely,
Fred F. Fielding
Counsel to the President
Melvin D. Unger, Esquire
Weg and Myers, P.C.
116 John Street
New York, NY 10038
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THE WHITE 1. USE
WASHINGTON
January 13, 1984
MEMORANDUM FOR FRED F. Fl LDING
RICHARD A. HAUSER
FROM:
JOHN G. ROBERTS
SUBJECT:
Nixon Files and Library Disputes
In preparation for our meeting Monday at 10:00 a.m., I have
compiled the following list of pending thems concerning
President Nixon's files and library:
1. Decision on whether to appeal Allen V. Carmen.
Time for filing an appeal expires in late February. The
Archivist and the Civil Division are TA commending an appeal;
the Office of Legal Counsel is opposed. At some point the
matter will be presented to the Solicitor General for his
input. Appealing will avoid any criticism that we are not
zealously seeking to open the Nixon files to public access,
but will leave us with the existing regulations. Those
regulations do not protect or even isolate executive
privilege material and make no provision for certain privacy
interests. Not appealing will afford an opportunity to
redraft the regulations to be more sensitive to Executive
Branch concerns, but will probably precipitate criticism
that our actions are based on a desirt to shield politically
embarrassing documents from public disclosure.
2. If it is decided not to appeal, we will have to
confront the question of the process of revising the public
access regulations, and also what the new regulations should
provide. The Archivist will resist any effort to issue new
regulations restricting access, and will also resist any
revision that would require going through the files once
again. A decision to isolate executive privilege material
and/or to protect the privacy interests of those named in
the files will require another P ige-by-page review of the
files.
3. The Archivist is refusing to process the Nixon
library package until Nixon agrees to drop all claims
concerning his files. Walter Annenberg and William Simon
have written the President requesting that he direct the
Archivist to file the statutorily required report to
Congress on the Nixon library package. A decision must be
made whether to comply with the Annenberg/Simon request,
which has piqued the President's interest. We owe Annenberg
and Simon a reply.
- 2 -
4. Legislation is pending to make the Archivist an
independent entity within the Executive Br nch. Any action
with respect to either the files or library could give
momentum to this proposal. The proposal is rife with
constitutional difficulties, since cour 3 have frequantly
upheld the authority of Lia Archivist with respect to
Executive Branch records Ly stressing that he WPS subject to
Presidential direction. The clearest example of this is,
int restingly, in the Supreme Court case upholding the Nison
Records Act, wherein the Court stressed that:
the control over the materials remains in the
Executive Branch. The Administrator of General
Services, who inust promulgate and administer the
regulations that are the keystone of the statutory
scheme, is himself an official of the Executive
Branch, appointed by the President. The career
archivists appointed to do the initial screening
for the purpose of selecting out and returning to
appellant his ptivate and personal papers similarly
are Executive Branch employees. Nixon V. GSA,
433 U. U.S. 425, 441 (1977).
5. Questions on all of these issues may arise during
confirmation hearings for our nominee to be Administrator of
GSA, if not overshadowed by issues more intrinsic to the
nomines. We should brief Sawyer before his hearings.
THE WHITE HOUSE
WASHINGTON
January 16, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
826
SUBJECT:
Cabinet Council on Legal Policy: Status
of Administration's Anti-Crime Legislation
The status of the Administration's anti-crime legislation
has been included on the agenda of today's meeting of the
Cabinet Council on Legal Policy. The attached memorandum
from the Deputy Attorney General focuses on S. 1762, which
includes all of the President's anti-crime proposals except
habeas corpus reform, exclusionary rule reform, the death
penalty, and the Tort Claims Act amendments. The bill has
been reported out of the Senate Judiciary Committee and is
co-sponsored by Senators Thurmond, Laxalt, Biden, and
Kennedy, pursuant to an agreement that the four would resist
all amendments to the bill. Senator Baker was willing to
let S. 1762 reach the floor last year, but only if a time
agreement could be reached. Senator De Concini would not
agree to a time agreement that did not allow floor
consideration of the death penalty, and death penalty
opponents would not agree to a time agreement allowing
debate on that issue.
Schmults argues that the best chance for passage of
significant anti-crime legislation is to secure Senate
passage of S. 1762 (virtually assured if it can be brought
to a vote) and then use S. 1762 as a vehicle for putting
pressure on the House. If the House refuses to act, at
least the blame for failure to secure anti-crime legislation
will be squarely placed on the Democrat-controlled House as
the election approaches. Putting the ball in the House's
court by fall, however, requires prompt Senate action.
Schmults recommends that the question be put on the agenda
of the legislative strategy group, so the members of that
group can consider what steps to take to urge Senator Baker
to bring S. 1762 to the Senate floor, a move that will
probably require time for debate on the death penalty issue.
In sum, there is nothing new to report on the fate of the
Administration's anti-crime legislation. Justice has
included it on the agenda in an effort to secure a greater
commitment of White House energy and resources to its
passage.
Attachment
THE WHITE HOUSE
WASHINGTON
January 16, 1984
MEMORANDUM FOR FRED F. FIELDING
RICHARD A. HAUSER
FROM:
JOHN G. ROBERTS
opd
SUBJECT:
Appointment of Archivist
A question arose at our meeting this morning concerning the
appointment of the Archivist. The Archivist is appointed by
the Administrator of GSA, 44 U.S.C. § 2102. The current
incumbent, Robert Warner, was appointed on July 15, 1980.
THE WHITE HOUSE
WASHINGTON
January 16, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS grol
SUBJECT:
Request For a Federal Investigator to Go
to Lincoln County, Oregon to Check into
the Board of Engineering Report
Reuben Embree of Toledo, Oregon has written the President,
demanding that a federal investigator be sent to Lincoln
County, Oregon to examine an alleged "cover-up" involving
the plotting of certain properties on the county tax maps.
Mr. Embree has corresponded with numerous federal officials,
including those at the Justice Department, on this issue in
the past. Your notation on the correspondence tracking
sheet directed a referral to Justice; an appropriate
memorandum is attached for your signature.
Attachment
THE WHITE HOUSE
WASHINGTON
January 16, 1984
MEMORANDUM FOR EDWARD C. SCHMULTS
DEPUTY ATTORNEY GENERAL
U.S. DEPARTMENT OF JUSTICE
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Request For a Federal Investigator to Go
to Lincoln County, Oregon to Check into
the Board of Engineering Report
The attached letter to the President from Reuben Embree,
demanding that a federal investigator be sent to Lincoln
County, Oregon, is referred to you for whatever consider-
ation and direct reply you deem appropriate.
Many thanks.
Attachment
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THE WHITE HOUSE
WASHINGTON
January 16, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTSO
SUBJECT:
Swafford Correspondence
You initialed the memorandum referring this correspondence
to the Deputy Attorney General, but changed the interim
reply to Swafford so that it would be sent over my
signature. The memorandum for Schmults, however, refers to
your interim reply. I have changed that memorandum to refer
to "the interim reply from this office."
Attachment
THE WHITE HOUSE
WASHINGTON
January 16, 1984
MEMORANDUM FOR EDWARD C. SCHMULTS
DEPUTY ATTORNEY GENERAL
U.S. DEPARTMENT OF JUSTICE
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Swafford Correspondence Concerning
Jesse Jackson
The attached correspondence from Carl Swafford to the
President, together with a copy of the interim reply from
this office, is submitted for your review and whatever
action you deem appropriate.
Many thanks.
Attachment
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THE WHITE HOUSE
WASHINGTON
January 16, 1984
Dear Mr. Swafford:
Thank you for your letter of November 21, 1983 to the
President, inquiring why the Departments of Education,
Labor, Health and Human Services, and Commerce have not
initiated litigation against the Reverend Jesse Jackson for
alleged misuse of funds secured by him for Operation Push,
Inc. and Push for Excellence, Inc. Please be advised that
your letter has been referred to the Department of Justice,
the Department responsible for federal litigation, for
review and whatever action that Department considers
appropriate.
Sincerely,
John Bobat
John G. Roberts
Associate Counsel to the President
Carl A. Swafford, Esquire
Swafford & Mitchell
Ninth Floor, Maclellan Building
Chattanooga, TN 37402
THE WHITE HOUSE
WASHINGTON
January 16, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS use
SUBJECT:
Cabinet Council on Legal Policy: Status of
the Administration's Immigration Reform
Legislation
The status of the Administration's immigration reform
legislation has been placed on the agenda of the Cabinet
Council on Legal Policy meeting scheduled for 2:00 p.m.
today. The Deputy Attorney General has prepared a
memorandum for the members of the Cabinet Council, reviewing
the background and current status of the Simpson-Mazzoli
bill, and outlining the major unresolved differences between
the Senate and House versions. The legislation has passed
the Senate, and the House version has been favorably
reported out of the House Judiciary Committee. Three other
House committees have reviewed the bill and recommended
substantive amendments. The House Rules Committee must now
establish a procedure for floor consideration. Speaker
O'Neill, in a volte-face, has promised to bring the bill to
the floor in early 1984.
The two principal differences between the Senate and House
versions are money and timing of legalization. The Senate
bill would establish a block grant program to aid the States
in meeting the welfare costs of legalized aliens. The
Administration has committed to fund this program at $1.4
billion for five years. The House bill authorizes full
Federal reimbursement to the States of the cost of
legalization, at an OMB-estimated cost of $11.2 billion for
five years.
With respect to the related issue of timing of legalization,
the Senate bill provides permanent resident status for
illegal aliens who continually resided in the United States
since before 1977, and temporary resident status for aliens
who arrived before 1980. Ineligibility for federal benefits
would extend for three years after permanent resident
status, six years after temporary resident status. The
House bill would provide permanent resident status to any
alien who arrived in the United States before 1982.
Schmults's memorandum reviews the other, less significant
differences between the Senate and House bills, primarily
in the details of the temporary worker program and the
administration of employer sanctions. The memorandum
- 2 -
concludes on an optimistic note, contending that the
strength of the Senate vote on the Administration-favored
version (76-18) augurs well for resolving many of the
differences between the Senate and House bills in the
Administration's favor in conference.
David Stockman has sumbitted a memorandum of his own,
raising serious budgetary and policy concerns about both the
Senate and House bills. His main concern is the
multi-billion dollar cost of either version. Stockman
argues that the conference outcome is likely to be an
"unacceptable" $11.7 billion for 1984-89, and that unless
the Administration acts forcefully before the bill is
scheduled for House action, it will be "too expensive."
Stockman's language strikes me as irresponsibly loose, in
light of the circumstances surrounding the fate of the
Simpson-Mazzoli bill. Speaker O'Neill torpedoed the bill
last year because of an alleged plan by the President to
veto it, and only agreed to floor consideration this year
after assurances that his fears were absurd. Now Stockman
circulates a memorandum on the bill laced with words such as
"unacceptable" and "too expensive." Perhaps it would be
wise to admonish the Cabinet Council participants to be
particularly circumspect concerning the confidentiality of
the memorandum, if that will do any good. Obviously the
Administration should work to eliminate the expensive House
amendments, but the President is committed, as a practical
matter, to signing anything that reaches his desk and looks
remotely like Simpson-Mazzoli.
Attachment
THE WHITE HOUSE
WASHINGTON
January 16, 1984
MEMORANDUM FOR DIANNA G. HOLLAND
COPY Reagan Presidential Record
FROM:
JOHN G. ROBERTS
5
SUBJECT:
Appointments of Malcolm A. MacKillop,
Corlene H. Cathcart and Clara Giordano
to the President's Advisory Committee on
Women's Business Ownership
By Executive Order 12426 (June 22, 1983) the President is
authorized to appoint no more than 15 members to the
President's Advisory Committee on Women's Business
Ownership, which is to review the status of businesses owned
by women, foster private sector support for women entre-
preneurs, and advise the President and the Small Business
Administration on these issues. Members "shall have
particular knowledge and expertise concerning the current
status of businessés owned by women in the economy and
methods by which these enterprises might be encouraged to
expand."
Corlene Cathcart,
66
She is Vice-President and
Comptroller of Majo Ranch. Clara Giordano recently retired
after 18 years of owning and operating a pizza parlor. Both
clearly satisfy the expertise requirement of the Executive
Order. Malcolm MacKillop is Senior Vice President for
Corporate Relations at Pacific Gas and Electric. He is less
obviously associated with women's business issues, but may
be considered to possess the requisite expertise in light of
his broad business and legal background and service on
numerous advisory panels on business issues. Neither
MacKillop nor Giordano have any financial interests likely
to present a conflict of interest. Cathcart, of course, has
interests in businesses owned by women, the subject matter
of the advisory committee. In light of the general advisory
role of the committee, however, these interests should not
be considered a bar to her appointment.
As we have discussed, I have not yet received a PDS from
Donald Seibert or Paula Brown.
Attachment