B-149372, FEB 15, 1974, 53 COMP GEN 600

B-149372, FEB 15, 1974, 53 COMP GEN 600

VICE-PRESIDENT - PROTECTION AFTER RESIGNATION SINCE THE PROTECTIVE SERVICES PROVIDED BY THE SECRET SERVICE FOR FORMER VICE PRESIDENT AGNEW AT THE REQUEST OF THE PRESIDENT ARE BEING FURNISHED WITHOUT AUTHORITY OF LAW THEY SHOULD BE DISCONTINUED. 18 U.S.C. 3056(A), THE STATUTE THAT AUTHORIZES SECRET SERVICE PROTECTION, DOES NOT PROVIDE FOR THE PROTECTION OF A FORMER VICE PRESIDENT, AND THE PRESIDENT DOES NOT HAVE "INHERENT EXECUTIVE POWER" TO ORDER SECRET SERVICE PROTECTION FOR THE FORMER VICE PRESIDENT AS THE PRESIDENT'S POWER MUST STEM EITHER FROM AN ACT OF CONGRESS OR FROM THE CONSTITUTION ITSELF.

TO THE SECRETARY OF THE TREASURY, FEBRUARY 15, 1974:

AS YOU ARE AWARE THIS OFFICE HAS CONSIDERED THE QUESTION OF WHETHER THE PROTECTIVE SERVICES BEING PROVIDED BY THE SECRET SERVICE AT YOUR DIRECTION - PURSUANT TO THE REQUEST OF THE PRESIDENT - FOR FORMER VICE PRESIDENT AGNEW ARE AUTHORIZED BY LAW. WE HAVE CONCLUDED THAT THEY ARE NOT SO AUTHORIZED.

THE STATUTE AUTHORIZING SECRET SERVICE PROTECTION IS 18 U.S.C. 3056(A). IT PROVIDES IN THIS RESPECT AS FOLLOWS:

SUBJECT TO THE DIRECTION OF THE SECRETARY OF THE TREASURY, THE UNITED STATES SECRET SERVICE, TREASURY DEPARTMENT, IS AUTHORIZED TO PROTECT THE PERSON OF THE PRESIDENT OF THE UNITED STATES, THE MEMBERS OF HIS IMMEDIATE FAMILY, THE PRESIDENT-ELECT, THE VICE PRESIDENT OR OTHER OFFICER NEXT IN THE ORDER OF SUCCESSION TO THE OFFICE OF PRESIDENT, AND THE VICE PRESIDENT -ELECT; PROTECT THE PERSON OF A FORMER PRESIDENT AND HIS WIFE DURING HIS LIFETIME, THE PERSON OF THE WIDOW OF A FORMER PRESIDENT UNTIL HER DEATH OR REMARRIAGE, AND MINOR CHILDREN OF A FORMER PRESIDENT UNTIL THEY REACH SIXTEEN YEARS OF AGE, UNLESS SUCH PROTECTION IS DECLINED; PROTECT THE PERSON OF A VISITING HEAD OF A FOREIGN STATE OR FOREIGN GOVERNMENT AND, AT THE DIRECTION OF THE PRESIDENT, OTHER DISTINGUISHED FOREIGN VISITORS TO THE UNITED STATES AND OFFICIAL REPRESENTATIVES OF THE UNITED STATES PERFORMING SPECIAL MISSIONS ABROAD; ***AND PERFORM SUCH OTHER FUNCTIONS AND DUTIES AS ARE AUTHORIZED BY LAW ***.

(SEE ALSO PUBLIC LAW 90-331, SET OUT AS A NOTE TO 18 U.S.C. 3056, PROVIDING FOR PROTECTION OF "MAJOR PRESIDENTIAL OR VICE PRESIDENTIAL CANDIDATES WHO SHOULD RECEIVE SUCH PROTECTION.")

SECTION 3056(A) OF TITLE 18 THUS PROVIDES SPECIFICALLY FOR PROTECTION OF AN INCUMBENT VICE PRESIDENT AND OF A VICE PRESIDENT-ELECT, AND FOR PROTECTION OF A FORMER PRESIDENT DURING HIS LIFETIME, BUT NOT FOR PROTECTION OF A FORMER VICE PRESIDENT. MOREOVER, THE CONGRESS HAS PROVIDED FOR CERTAIN SERVICES AND FACILITIES TO BE MADE AVAILABLE TO FORMER VICE PRESIDENTS, WITHOUT INCLUDING SPECIFIC PROVISION FOR SECRET SERVICE PROTECTION (ACT OF MARCH 7, 1964, PUBLIC LAW 88-277, 78 STAT. 153 3 U.S.C. 102 NOTE), AND FOR PROTECTION OF CANDIDATES FOR PRESIDENTIAL OR VICE PRESIDENTIAL OFFICE (PUBLIC LAW 90-331). IT IS THUS BEYOND QUESTION THAT THERE IS NO STATUTORY AUTHORIZATION FOR SECRET SERVICE PROTECTION OF MR. AGNEW.

NOR CAN WE AGREE WITH THE REPORTED CONTENTION OF THE TREASURY DEPARTMENT THAT THE PRESIDENT HAS "INHERENT EXECUTIVE POWER" TO ORDER SECRET SERVICE PROTECTION OF MR. AGNEW. WE BELIEVE THAT THE PRESIDENT'S POWER "MUST STEM EITHER FROM AN ACT OF CONGRESS OR FROM THE CONSTITUTION ITSELF." YOUNGSTOWN SHEET AND TUBE CO. V. SAWYER, 343 U.S. 579 (1952). IN THIS CASE, AS ALREADY NOTED, THE ACTS OF CONGRESS PROVIDE NO BASIS FOR THE CLAIM OF PRESIDENTIAL POWER TO ORDER PROTECTION FOR MR. AGNEW.

WITH RESPECT TO THE QUESTION OF CONSTITUTIONAL AUTHORITY TO ORDER SUCH PROTECTION, WE NOTE THAT SECTION 3056(A) OF TITLE 18 GIVES THE PRESIDENT CERTAIN DISCRETIONARY AUTHORITY TO ORDER PROTECTION OF DISTINGUISHED FOREIGN VISITORS TO THE UNITED STATES (OTHER THAN HEADS OF STATE) OR OF OFFICIAL REPRESENTATIVES OF THE UNITED STATES PERFORMING SPECIAL MISSIONS ABROAD. ALSO, WE ARE AWARE THAT, IN THE LEGISLATIVE HISTORY OF THE ACT OF JANUARY 5, 1971, PUBLIC LAW 91-651, 84 STAT. 1940, 18 U.S.C. 713, WHICH ADDED THAT DISCRETIONARY PROVISION TO SECTION 3056(A), THERE IS A STATEMENT BY THE TREASURY DEPARTMENT THAT THE PRESIDENT HAS "INHERENT CONSTITUTIONAL AUTHORITY" TO ORDER PROTECTION OF DISTINGUISHED FOREIGN VISITORS. S.REPT. NO. 91-1463, 91ST CONG., 2D SESS. 2. HOWEVER, THE CIRCUMSTANCES THERE INVOLVED WERE THAT THE DEPARTMENT OF STATE HAD TRADITIONALLY PROVIDED PROTECTION OF FOREIGN VISITORS UNDER ITS GENERAL RESPONSIBILITIES FOR STATE VISITS, THAT THIS WAS CONSIDERED TO BE A "FOREIGN AFFAIRS FUNCTION," AND THAT THE PROPOSED LEGISLATION MERELY TRANSFERRED THE EXISTING RESPONSIBILITY FROM THE STATE DEPARTMENT TO THE SECRET SERVICE. YOUR DEPARTMENT THERE MADE NO SUCH CLAIM OF EXECUTIVE POWER AS IS APPARENTLY NOW BEING ASSERTED; THE LETTER FROM THE ACTING SECRETARY OF THE TREASURY TRANSMITTING THE PROPOSED LEGISLATION STATED THAT "IT IS OUR VIEW THAT THE PRESIDENT NOW HAS THE INHERENT CONSTITUTIONAL AUTHORITY TO DIRECT THE SECRET SERVICE TO PERFORM THE FUNCTIONS WHICH WOULD BE AUTHORIZED BY THIS LEGISLATION" (S. REPT. NO. 91- 1463, P.3 - I.E., THE PROTECTION OF FOREIGN VISITORS AND OFFICIAL AMERICAN REPRESENTATIVES ABROAD. MOREOVER, AND NOTWITHSTANDING THE CLAIMED EXECUTIVE AUTHORITY, THE SECRETARY OF THE TREASURY REQUESTED AND OBTAINED SPECIFIC STATUTORY AUTHORITY FOR THE PERFORMANCE OF THE FUNCTIONS IN QUESTION.

WE WOULD AGREE THAT, UNDER HIS CONSTITUTIONAL DUTIES TO "RECEIVE AMBASSADORS AND OTHER PUBLIC MINISTERS" (ARTICLE II, SECTION 3), AND TO MAKE TREATIES SUBJECT TO SENATE ADVICE AND CONSENT (ARTICLE II, SECTION 2), THE PRESIDENT CAN PROVIDE FOR PROTECTION OF DISTINGUISHED FOREIGN VISITORS TO THIS COUNTRY OR OF OFFICIAL REPRESENTATIVES OF THE UNITED STATES WHILE THEY ARE ABROAD. WHETHER HE COULD ORDER THE SECRET SERVICE TO TAKE OVER SUCH FUNCTIONS FROM THE DEPARTMENT OF STATE WITHOUT STATUTORY AUTHORITY IT IS UNNECESSARY TO DECIDE, SINCE THE CONGRESS SAW FIT TO GIVE HIM SPECIFIC LEGISLATION TO ACCOMPLISH THIS PURPOSE. HOWEVER, IN THAT SITUATION, IT IS CLEAR THAT THE CLAIM OF INHERENT EXECUTIVE POWER FINDS ITS JUSTIFICATION IN FURTHERANCE OF THE PRESIDENT'S PERFORMANCE OF A CONSTITUTIONAL DUTY, THE CONDUCT OF FOREIGN AFFAIRS. NO SUCH JUSTIFICATION IN TERMS OF ANY CONSTITUTIONAL DUTY OF THE PRESIDENT HAS, INSOFAR AS WE KNOW, BEEN CLAIMED IN CONNECTION WITH THE PROTECTION OF MR. AGNEW, AND NONE APPEARS TO THIS OFFICE TO BE PRESENT. WE MUST CONCLUDE THAT THE REPORTED CLAIM OF INHERENT EXECUTIVE POWER IS WITHOUT FOUNDATION. HENCE, AND SINCE THERE IS NO STATUTORY AUTHORITY FOR FURNISHING SECRET SERVICE PROTECTION TO MR. AGNEW, THE FURNISHING OF SUCH PROTECTION IS WITHOUT AUTHORITY OF LAW.

WE UNDERSTAND THAT THE PROTECTION SERVICE IS STILL BEING PROVIDED AND THE DEPARTMENT OF THE TREASURY INTENDS TO CONTINUE IT AT LEAST UNTIL SOMETIME IN APRIL. WE MUST ADVISE, IN LIGHT OF THE FOREGOING, THAT APPROPRIATIONS FOR THE OPERATIONS OF THE SECRET SERVICE ARE NOT AVAILABLE TO PAY THE COSTS OF FURNISHING SECRET SERVICE PROTECTION TO FORMER VICE PRESIDENT AGNEW. THEREFORE FUTURE PAYMENTS MADE FOR SUCH PURPOSE WILL BE DISALLOWED BY OUR OFFICE. RECOGNIZING THE ADMINISTRATIVE PROBLEMS INVOLVED IN DISCONTINUING THE PROTECTION BEING FURNISHED, THE DISALLOWANCES WILL BE MADE ON ANY PAYMENTS MADE AFTER FEBRUARY 17, 1974. THE CONCERNED CERTIFYING OFFICERS SHOULD BE IMMEDIATELY SO INFORMED.

COPIES OF THIS DECISION ARE BEING SENT TO THE RESPECTIVE CHAIRMEN OF THE COMMITTEES ON APPROPRIATIONS OF THE HOUSE AND THE SENATE, TO REPRESENTATIVE JOHN E. MOSS, AND TO OTHER MEMBERS OF CONGRESS WHO HAVE INQUIRED TO US CONCERNING THIS MATTER.