White House Communications Agency Expenses Incurred on Political or Personal Travel by the President, 90-21

CourtOpinions of the Office of Legal Counsel of the Department of Justice
Citation14 Op. O.L.C. 144
Decision Date22 October 1990
Docket Number90-21
PartiesWhite House Communications Agency Expenses Incurred on Political or Personal Travel by the President

14 Op. O.L.C. 144

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

No. 90-21

United States Department of Justice

October 22, 1990


J. MICHAEL LUTTIG Assistant Attorney General Office of Legal Counsel

White House Communications Agency Expenses Incurred on Political or Personal Travel by the President When the White House Communications Agency accompanies the President on travel, it may (and should) use appropriated funds to pay for any expense incurred for activities in furtherance of its official mission to provide a continuous communications capability to the President and his advisors, regardless of whether the travel is for official, political, or personal purposes.

The White House Communications Agency may use appropriated funds to pay for expenses incurred in connection with the provision of communications facilities and services for the official use of the President and his staff during Presidential travel.

Appropriated funds may be expended to facilitate official, but not political, communication between the President and the press.

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

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

I.

WHCA is a component of the White House Military Office, responsible for providing continuous communications services to the President, his senior staff, and the Secret Service, both at the White House and during presidential travel, domestic or international. Your memorandum of March [ 145] 28, 1990, details the principal functions performed by WHCA in connection with a routine presidential trip.[2] Approximately one week prior to a presidential visit, WHCA travels to the site, establishes staff offices, and installs telephone lines, satellite terminals, and other equipment necessary for continuous communications capability. These facilities and equipment are then used during the President's trip for communications between the President, his senior advisers, and the Secret Service, and the other departments and agencies of government and the general public. Staff telephones are generally provided "to permit staff and trip coordination." Nelson Memorandum at 2. The White House staff has been advised repeatedly, however, that it may not use WHCA communications equipment "for direct political purposes such as campaign fundraising and crowd-building." Id.

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

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

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

II.

The legal principles governing payment of WHCA expenses are set forth in the Olson Memorandum. In that memorandum, we identified two "major principles" of appropriations law applicable in this and similar contexts. First, "appropriated funds may be spent only for the purposes for which they have been appropriated." Olson Memorandum at 215. Second, "in general, official activities should be paid for only from funds appropriated for such [ 146] purposes, unless Congress has authorized the support of such activities by other means." Id. at 216.[4]

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

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

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

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

WHCA is an obvious example of a group that, like the military aide and the President's doctor, performs official responsibilities for the President when he travels, regardless of whether the travel is official, personal, or political. We have never squarely addressed whether expenses incurred in the performance of these responsibilities may be paid from appropriated [ 147] funds when the travel is for personal or political purposes, but we have always assumed that they should be. For example, we observed in 1977 that,

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

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

Our conclusion that these expenses should be paid from appropriated funds is consistent with the treatment of such expenses under the Federal Election Campaign Act ("FECA"), 2 U.S.C. §§ 431-456 and the Presidential Election Campaign Fund Act ("PECFA"), 26 U.S.C. §§ 9001-9013.[8] Generally, Secret Service, WHCA, or other official expenses are not campaign "expenditures" under the FECA or "qualified campaign expenses" under the PECFA.[9]

Under the regulations promulgated pursuant to the FECA, if a candidate for federal office, other than a candidate for President or Vice President who receives federal funds under the PECFA, "uses government conveyance or accommodations for travel which is campaign-related, " then the candidate must report as an "expenditure" under the FECA "the rate for comparable [ 148] commercial conveyance or accommodation." 11 C.F.R. § 106.3(e) (1981).[10]The regulations make clear, however, that expenses associated with staff and equipment authorized by law or necessary for national security are not "expenditures" reportable under this section:

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

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

A similar rule applies to travel of the President when, as a participating candidate under the PECEA, he campaigns for his own renomination or reelection or when he is campaigning on behalf of other federal candidates. The regulation governing presidential campaign travel during the general presidential election campaign[11] states that

[i]f any individual, including a candidate, uses government conveyance or accommodations paid for by a government entity for campaign related travel, the candidate's authorized committee shall pay the appropriate government entity an amount [calculated according to a specified formula].

11 C.F.R. § 9004.7(b)(5) (1981) (emphasis added).[12] Any such repayable expenses are defined...

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