Executive Branch Encouragement of Contributions to a Nicaraguan Opposition Party

Executive Branch Encouragement of Contributions to a
Nicaraguan Opposition Party

N o provision o f U nited S tates law precludes the P resident or m em bers o f his A dm inistration
from encouraging private parties to contribute funds to the N ational O pposition U nion, a
N icaraguan political party, for use in the scheduled N icaraguan elections.

January 25, 1990

m em orandum O p in io n f o r t h e A s s is t a n t t o t h e P r e s id e n t
fo r N a t io n a l S e c u r it y A f f a ir s

This responds to your request for our legal opinion on whether there are
any legal prohibitions under United States law precluding the President and
members o f his Administration from encouraging private parties to contrib­
ute funds to the National Opposition Union (“UNO”) for use in the scheduled
Nicaraguan elections. As we understand the proposal, the Administration
would not itself contribute funds, nor would it collect funds from others for
delivery to UNO. The Administration would merely encourage those who
might be interested to make contributions directly to the party for use in the
campaign.
After a careful review, we have discovered no provision of United States
law which would prevent the President or members of his Administration
from encouraging private donors to contribute funds to a foreign political
party for use in a foreign election. The Legal Adviser of the State Depart­
ment has independently reviewed the legal authorities and has reached the
same conclusion.
Certain statutes prohibit the provision of funds or other assistance by the
United States to the “Nicaraguan Resistance” or the “Nicaraguan democratic
resistance.” See, e.g.. Pub. L. No. 101-14, § 7(a), 103 Stat. 37, 38 (1989);
Pub. L. No. 100-463, 102 Stat. 2270 (1988); Pub. L. No. 100-453, § 104,
102 Stat. 1904, 1905 (1988). Such statutes are inapplicable to the current
proposal because the actions contemplated are not intended to support the
activities o f the Nicaraguan Resistance, a military organization, but rather
the political activities of UNO, a separate political entity. Further, we do
not believe that such statutes prevent the President and members o f his
Administration from encouraging private donations, as opposed to providing
United States assistance.
Nor do we believe that the Act to Provide Assistance for Free and Fair
Elections in Nicaragua, Pub. L. No. 101-119, 103 Stat. 699 (1989), restricts
the President or members of his Administration from encouraging private
donations. That law made certain funds available to the Administrator o f the
Agency for International Development “for assistance for the promotion of

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democracy and national reconciliation in Nicaragua.” Certain categories of
funds may only be made available “consistent with” the Charter, or both the
Charter and the standard operating procedures, of the National Endowment
for Democracy. The National Endowment for Democracy is “a private, non­
profit corporation . . . which is not an agency or establishment of the United
States Government.” 22 U.S.C. § 4411. The Endowment receives grants
from the United States Information Agency. IsL § 4412. However, “[f|unds
may not be expended, either by the Endowment or by any of its grantees, to
finance the campaigns of candidates for public office.” Id. § 4414(a)(1).
The proviso in Public Law No. 101-119 restricting the use of funds made
available therein clearly applies only to the funds administered under that
Act. Thus, it cannot be construed to express any congressional intent to
prohibit the President or members of his Administration from encouraging
private financial support for UNO. The proposal does not involve making
any appropriated funds available to UNO, much less funds covered by the
proviso in Public Law No. 101-119. We thus do not see how the proposed
activity could be in contravention of that act.
The proposal also would not implicate the Obey Amendment to the For­
eign Operations, Export Financing, and Related Programs Appropriations
Act, 1990, Pub. L. No. 101-167, § 582, 103 Stat. 1195, 1251.' The Obey
Am endment prohibits the provision of the funds appropriated in Public Law
No. 101-167 to any foreign government, foreign person, or United States
person in exchange for undertaking any action which a United States official
or employee would be expressly prohibited from taking under a provision of
United States law. The Obey Amendment restrictions thus apply only to
funds appropriated under the Foreign Operations Act. Those restrictions are
inapplicable here because the proposal, as we understand it, would not in­
volve the provision of funds appropriated in the Act to any person or foreign

1The Obey Am endm ent provides in its entirety:
(a) None o f the funds appropriated by this Act may be provided to any foreign government
(including any instrum entality or agency thereof), foreign person, or United States person in
exchange for that foreign government or person undertaking any action which is, if carried out
by the U nited States Government, a United States official or employee, expressly prohibited by
a provision o f U nited States law.
(b) F or the purpose o f this section the term “funds appropriated by this Act” includes only (1)
assistance o f any kind under the Foreign Assistance Act o f 1961; and (2) credits, and guaranties
under the Arm s Export Control Act.
(c) N othing in this section shall be construed to limit —
(1) the ability o f the President, the Vice President, or any official or em ployee of the
U nited States to make statements o r otherwise express their views to any party on any
subject;
(2) the ability o f an official or em ployee of the United States to express the policies of
the President; or
(3) the ability of an official or em ployee of the United States to communicate with any
foreign country government, group or individual, either directly or through a third party,
w ith respect to the prohibitions o f this section including the reasons for such prohibi­
tions, and the actions, terms, or conditions which m ight lead to the removal of the prohi­
bitions o f this section.
Foreign O perations. Export Financing, and Related Programs Appropriations Act, 1990, Pub. L. No.
101-167, § 582, 103 Stat. 1195, 1251.

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 government. Further, we are aware of no provision of United States law
expressly prohibiting the United States from contributing funds to UNO.2
Finally, the Obey Amendment specifically states that it shall not be con­
strued to limit “the ability of the President, the Vice President, or any official
or employee of the United States to make statements or otherwise express
their views to any party on any subject,” nor to limit “the ability o f an
official or employee of the United States to express the policies of the Presi­
dent.”
We have also reviewed the Hatch Act, 5 U.S.C. § 7324(a)(1), and con­
clude that it does not restrict Administration officials from encouraging
donations to a foreign political party. Section 7324(a)(1) prohibits “ [a]n
employee in an Executive agency” from “us[ing] his official authority or
influence for the purpose of interfering with or affecting the result of an
election.” We do not believe this provision applies extraterritorially to for­
eign elections. Laws are presumed to apply only territorially, unless the
contrary is clearly indicated in the the statute. Restatement (Second) of
Foreign Relations Law of the United States § 38 (1965). Accord 1 Restate­
ment (Third) of the Foreign Relations Law of the United States § 403, cmt.
g (1987). See American Banana Co. v. United Fruit Co., 213 U.S. 347, 357
(1909) (“All legislation is prima facie territorial.”).
Even without that presumption, it is clear that Congress’s concern in
enacting the Hatch Act was the interaction of federal employees with the
domestic political process. As the Supreme Court noted in upholding sec­
tion 7324(a)(2) against a First Amendment challenge, the political history of
the United States has confirmed that “it is in the best interest of the country,
indeed essential, that federal service should depend upon meritorious perfor­
mance rather than political service, and that the political influence of federal
employees on others and on the electoral process should be limited.” United
States Civil Serv. Comm’n v. National A ss’n o f Letter Carriers, 413 U.S.
548, 557 (1973) (emphasis added). Congress was concerned about attempts
to utilize federal employees to staff domestic political machines, and wished
to free such employees from coercion to vote on partisan lines or to perform
political tasks in domestic elections. Id. at 565-66. As described by one
Congressman, “[t]his proposed legislation seeks only to make certain the
inherent right of every citizen of our land of the freedom of the ballot and
his or her right to vote as they may elect without interference from illicit
political manipulators.” 84 Cong. Rec. 9603 (1939) (remarks of Rep.
Springer).3

2 As discussed above, Public Law No. 101-119 does not constitute an express prohibition, but m erely a
limitation on the use of certain specified funds.
’ Further, we note that the President and Vice President are clearly not bound by the statute because they
are not “em ployee[s]” as that term is used in title 5. See 5 U.S.C. § 2105. A specific exem ption for the
President and Vice President was removed from section 7324(d) as unnecessary. See 5 U.S.C. § 7324,
Historical and Revision Notes.

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 We also believe that the Anti-Lobbying Act, 18 U.S.C. § 1913, is inappli­
cable because Presidential encouragement of support for UNO would not in
any way be “intended or designed to influence in any manner a Member o f
C ongress'' 18 U.S.C. § 1913 (emphasis added).
We are aware that 31 C.F.R. § 540.205 prohibits the export of “goods” to
Nicaragua. But a prohibition on export of “goods” does not apply to politi­
cal contributions of money. Indeed, the regulation was promulgated under
the authority given the President by the International Emergency Economic
Powers Act, 50 U.S.C. §§ 1701-1706, where the distinction between orders
blocking “goods” and those blocking “property,” including monetary pay­
ments, is well established. Compare 31 C.F.R. § 535.201 (prohibiting all
Iranian “property” in the United States from being “transferred, paid, ex­
ported, withdrawn or otherwise dealt in except as authorized”).
Moreover, even if some provision of law purported to prohibit the President
from encouraging financial support for UNO, we do not believe that the law
would be constitutional. The Department of Justice made this point publicly:

[N]o law can constitutionally prevent the President or his aides
under his authority from urging private citizens to contribute
funds for foreign entities to which donations can legally be
made. The President has independent authority from two dis­
tinct sources to solicit such funds. First and foremost, the
President “is a representative of the people, just as the mem­
bers of the Senate and of the House are.” Myers v. United
States, [272 U.S. 52, 123 (1926)]. It is therefore essential that
the President be able to engage in a dialogue with the citizens
o f the United States. He would be unable to fulfill many of
his constitutional duties if he were not permitted to communi­
cate with those people whom he represents and to ask them to
undertake any legal act.
M oreover . . . in the area of foreign affairs the President’s
powers are “plenary and exclusive.” [United States v. Curtiss-
Wright Export Corp., 299 U.S. 304, 319 (1936)]. This requires
that he be free to gauge public opinion and to lead the country
in the direction he thinks most prudent. He may inform the
public of their legal rights and responsibilities and encourage
them to take any legal action that would support one of his
foreign policy positions.

M emorandum of Law of the United States Filed by the Department of Jus­
tice as Amicus Curiae, United States v. North, Crim. No. 88-0080-02 at 30-31
(D.D.C. Nov. 18, 1988).
We are not aware of any reporting requirement which would be appli­
cable to actions of the sort contemplated in the proposal. In particular, we

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do not believe that Administration officials encouraging donations to a for­
eign political party would be required to register as “agents of a foreign
principal” pursuant to the Foreign Agents Registration Act of 1938, as
amended, 22 U.S.C. §§ 611-621. That statute provides that “ [n]o person
shall act as an agent of a foreign principal unless” he has registered with the
Attorney General or is exempt from the registration requirements. 22 U.S.C.
§ 612(a). The term “foreign principal” includes a foreign political party. Id.
§ 611(b)(1). An “agent of a foreign principal” is
any person who acts as an agent, representative, employee, or
servant, or any person who acts in any other capacity at the
order, request, or under the direction or control, of a foreign prin­
cipal or of a person any of whose activities are directly or indirectly
supervised, directed, controlled, financed, or subsidized in whole
or in major part by a foreign principal, and who directly or through
any other person—
(i) engages within the United States in political activities
fo r or in the interests o f such foreign principal,
(ii) acts within the United States as a public relations counsel,
publicity agent, information-service employee or political con­
sultant fo r or in the interests o f such foreign principal,
(iii) within the United States solicits, collects, disburses, or
dispenses contributions, loans, money, or other things of
value fo r or in the interest o f such foreign principal.
22 U.S.C. § 611(c)(1) (emphasis added).
We do not believe a government official, acting on behalf of the United
States to carry out its foreign policy, is acting “as an agent, representative,
employee, or servant, or . . . at the order, request, or under the direction or
control, of a foreign principal” within the meaning of section 611(c)(1).
Such officials are acting under the direction and control of the United States,
rather than of the foreign principal, and they act to further the interests of
the United States, which may or may not coincide with those of the foreign
entity. Moreover, this reading best comports with the purposes o f the For­
eign Agents Registration Act. “The general purpose of the legislation was to
identify agents of foreign principals who might engage in subversive acts or
in spreading foreign propaganda, and to require them to make public record
o f the nature of their employment.” Viereck v. United States, 318 U.S. 236,
241 (1943). Thus, the aim of the legislation was to protect the United States
Government from outside threats, rather than to constrain the duly autho­
rized actions of government officials.
Furthermore, we do not believe that the contemplated conduct would vio­
late the ethics laws.4 As a general matter, however, all officials who will be
involved in providing such encouragement should be careful to avoid any
appearance of impropriety.5 Thus, for example, it would be unwise for an
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official to encourage a contribution from a corporation that has a direct inter­
est in a matter pending before the official, even if there is no indication of a
quid pro quo. It is, of course, impossible to detail all such situations in
advance; in order to avoid any appearance of impropriety, additional advice
should be sought from the White House Counsel’s Office as particular ques­
tions arise.
Finally, the proposed arrangement could not be deemed an improper aug­
mentation of executive branch appropriations. Mere encouragement of private
activity does not constitute augmentation. Private individuals would be making
contributions directly to UNO, rather than to the United States Government.
The government would exercise no control over the donated funds. Thus, funds
available for executive branch purposes would not be increased.
The foregoing addresses the Administration’s encouragement of dona­
tions to foreign political parties as a matter of domestic law. We have been
inform ed by the State Department that foreign donations are legal under
Nicaraguan law if they comply with certain procedures. We understand that
members of the Administration will encourage donors to contact UNO, which
will then take responsibility for complying with Nicaraguan law. Were a
donor to violate Nicaraguan law, he would presumably be subject to pros­
ecution in that country. Even if the actions of a donor were found illegal
under Nicaraguan law, however, that fact alone would not make the actions
o f the donor, or of any Administration official who had encouraged him,
im proper under United States law. While we do not address generally the
international law implications o f these actions, we note that the encourage­
ment o f acts that are legal under Nicaraguan law could not be viewed under
international law as interfering with Nicaragua’s internal affairs.6

WILLIAM P. BARR
Assistant Attorney General
Office o f Legal Counsel

4 For exam ple, section 208 o f title 18, United States Code, which concerns official acts affecting a
personal financial interest, would only apply if an official had knowledge that he, or certain other
persons with whom he is associated, had a financial interest that would be affected by the provision of
m oney to UNO. T his statute might conceivably apply if assistance to UNO were channeled through
persons or entities in which an official involved, or persons with whom he is associated, had a financial
interest.
3 In particular, officials should not in any way indicate that they will be influenced in the performance of
their duties in return for contributions to UNO. Such conduct would violate the federal bribery statute.
18 U .S.C. § 201 (b)(2) (“ W hoever. . . being a public o fficial. . . directly or indirectly, corruptly demands,
seeks, receives, accepts, or agrees to receive or accept anything o f value personally or fo r any other
person o r entity, in return for . .. being influenced in the performance of any official a c t . . . [shall be
punished as prescribed].”) (emphasis added).
‘ W hile we do not believe there is any general legal prohibition against contributions to Nicaraguan
political parties, we have not addressed legal restraints which may be applicable to donors in specific
situations. Thus, donors interested in doing business in Nicaragua may wish to consider the applicabil­
ity o f the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-l, 78dd-2.

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