Status of Presidential Memorandum on Use of the
Polygraph in the Executive Branch
An undated four-page memorandum from President Lyndon Johnson entitled “Use of the
Polygraph in the Executive Branch” and addressed to the heads of Executive Branch
departments and agencies, which was neither issued as a directive to the Executive
Branch nor understood contemporaneously to have legal effect, does not now bind the
Department of Justice or other entities within the Executive Branch.
January 14, 2009
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
JUSTICE MANAGEMENT DIVISION
You have asked for our views on the validity of an undated four-page
memorandum from President Lyndon Johnson entitled “Use of the Poly-
graph in the Executive Branch” and addressed to the heads of Executive
Branch departments and agencies. Memorandum to the Heads of De-
partments and Agencies, Use of the Polygraph in the Executive Branch
(“Johnson Memorandum” or “Memorandum”), Ex PE1 10/1/64, Box 4,
White House Central Files (“WHCF”), Lyndon Baines Johnson Library
(“LBJL”). You state that you have previously relied on the Johnson
Memorandum in providing advice regarding polygraph use in the De-
partment of Justice, but that a September 2006 report by the Office of the
Inspector General called into question whether the Johnson Memoran-
dum was ever issued, and whether it has legal effect. See Office of the
Inspector General, Dep’t of Justice, Use of Polygraph Examinations in
the Department of Justice at 2–5 (Sept. 2006) (“OIG Report”), www.
usdoj.gov/oig/reports/plus/e0608/final.pdf. The Johnson Memorandum
states that “to prevent unwarranted intrusions into the privacy of individ-
uals . . . use of the polygraph is prohibited” in the Executive Branch,
subject to three “limited exceptions.” Johnson Memorandum at 1.
Based on our examination of the historical record, we conclude that
while President Johnson apparently signed the Memorandum in January
1967, he did not issue it as a directive to the Executive Branch, nor was
the document understood contemporaneously to have legal effect. Even
assuming the Memorandum did take effect at the time of signature, un-
controverted evidence demonstrates that President Johnson gave subse-
quent directions to his subordinates sufficient to revoke the Memorandum
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Status of Presidential Memorandum on Use of the Polygraph
and deny it further legal effect. It is our view, therefore, that the Memo-
randum does not now bind the Department of Justice or other entities
within the Executive Branch. 1
I.
The Johnson Memorandum states that “to prevent unwarranted intru-
sions into the privacy of individuals . . . use of the polygraph is prohibit-
ed” in the Executive Branch, with three “limited exceptions.” Id. at 1.
First, it states that an Executive Branch entity with “an intelligence or
counter-intelligence mission directly affecting the national security” may
use polygraphs for “employment screening and personnel investigations,
and in intelligence and counter-intelligence operations,” after complying
with certain procedural and substantive requirements. For polygraph use
“in intelligence and counter-intelligence operations,” it states that an
agency must “prepare regulations and directives governing the use of the
polygraph” to be approved by the agency head. For polygraph use “in
employment screening and personnel investigations,” it states that a
broader set of requirements applies: an agency must prepare regulations
subject to the review and approval of the Chairman of the Civil Service
Commission containing enumerated procedural and substantive protec-
tions, including advance notice to the subject of a polygraph examination
about his privilege against self-incrimination, the effect of the results of
the polygraph examination (or refusal to consent) on eligibility for em-
ployment, and an assurance that refusal to consent to a polygraph will not
be made part of a personnel file. Id. at 1–2. 2 Second, the Memorandum
would permit executive departments and agencies to use polygraphs “in
aid of criminal investigations” after they promulgate regulations or direc-
1 The Office of Personnel Management interprets its authority to review and approve
agency polygraph policies as deriving from general statutory authority to administer the
civil service rules and regulations, 5 U.S.C. § 1103(a)(5)(A) (2006); authority under
Executive Order 10577 of November 22, 1954, as amended, to establish standards for
determining the suitability of applicants and appointees to the competitive service; and its
authority under Executive Order 10450 of April 27, 1953, as amended, to investigate
persons entering or employed in the competitive service, including investigations for
sensitive national security positions.
2 Pursuant to the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111,
the management functions of the Civil Service Commission have been transferred to the
Office of Personnel Management.
115
33 Op. O.L.C. 114 (2009)
tives subject to the approval of the Attorney General and containing
similar procedural and substantive protections, including advance notice
of the subject’s privilege against self-incrimination, right to refuse to
submit to the examination, and, in the case of a federal employee, an
affirmation that refusal to consent to a polygraph will not result in an
adverse action against the employee and will not be made part of an
employee’s personnel file. Id. at 3. Third, the Memorandum would allow
polygraph use “to record physiologic variables in bona fide research and
development projects.” Id. at 3–4.
To understand the legal status of the Johnson Memorandum requires an
in-depth examination of the historical record. In June 1963, following
public criticism of efforts by the Department of Defense to use polygraph
examinations during a leak investigation, the Chairman of the House
Government Operations Committee directed that a comprehensive study
be undertaken of polygraph use in the Executive Branch. The resulting
report, published in March 1965, was critical of polygraph technology and
the existing qualifications and supervision of federal polygraph operators,
and it called on the Johnson Administration to prohibit the use of poly-
graphs “in all but the most serious national security and criminal cases.”
See H.R. Rep. No. 89-198, at 1–2 (1965). In November 1965, President
Johnson established an interagency committee (the “Committee”) to study
Executive Branch polygraph use; the Committee consisted of representa-
tives from the Department of Defense, Bureau of the Budget, Office of
Science and Technology, Department of Justice, and Central Intelligence
Agency, and it was chaired by John W. Macy, Jr., Chairman of the Civil
Service Commission. 3
On July 29, 1966, the polygraph Committee transmitted to the President
a report and draft memorandum to heads of Executive Branch departments
and agencies, which (but for the absence of the President’s signature), is
identical to the Johnson Memorandum. Given the “wide divergence of
opinion” on polygraph reliability, general inadmissibility of polygraph
results in judicial proceedings, and “invasion of privacy of the individual
being interrogated,” the interagency Committee recommended to the
3See Civil Service Commission Memorandum for the President at 1 (July 29, 1966)
(“Commission Memorandum”); see also Office of Technology Assessment, Scientific
Validity of Polygraph Testing 34 (1983) (discussing establishment and work of interagen-
cy Committee).
116
Status of Presidential Memorandum on Use of the Polygraph
President that polygraph use be prohibited in the Executive Branch except
for the three limited circumstances (and subject to the enumerated protec-
tions) described in the Johnson Memorandum. 4 Although the surviving
copy of the Johnson Memorandum is undated, correspondence with senior
White House staff suggests President Johnson initially reviewed and
approved the report and draft Memorandum in substance on or about
December 30, 1966 and signed the Memorandum between January 11 and
January 14, 1967. 5
A review of White House records from the Johnson Administration re-
veals several indications that the Johnson Memorandum was never issued.
Neither the published Weekly Compilation of Presidential Documents,
nor the Johnson White House’s internal collection of presidential memo-
randa issued to heads of departments and agencies, contains a copy. 6 The
surviving copy of the Memorandum in the official records of the Johnson
Administration was deposited in the White House Central Files with a
cover note from the chief clerk of the White House files, stating: “I don’t
think this was ever circulated or released. It was held up on instructions
after signature.” 7 We have consulted several agencies and Department
4 See Commission Memorandum at 1–2.
5 On January 11, John Macy wrote to the President attaching “for your signature” the
Memorandum “as approved by you on December 30.” See Memorandum for the President
from John W. Macy, Jr. (Jan. 11, 1967), Ex PE1 10/1/64, Box 4, WHCF, LBJL. On
January 14, Macy wrote to White House Press Secretary George Christian attaching a
signed copy of the Johnson Memorandum and stating: “In view of the President’s approv-
al of the attached memorandum to department and agency heads, the attached press
release is available for press office use at whatever time you and the President decide.”
See Memorandum for George Christian, Press Secretary to the President, from John W.
Macy, Jr. (Jan. 14, 1967), Ex PE1 10/1/64, Box 4, WHCF, LBJL.
6 This collection is now contained in the presidential archives at LBJL.
7 Undated note by William J. Hopkins, Ex PE1 10/1/64, Box 4, WHCF, LBJL. Accord-
ing to records at the Johnson Library, Hopkins was a member of the permanent White
House staff who served as Executive Clerk of the White House from 1943 to 1964 and
later as Executive Assistant to the President. His note bears annotations from employees
in the White House Central Files that suggest it was written at the time the Johnson
Memorandum was signed or when it was deposited in the White House files in January
1967 or 1969. See E-mail for Jeremy Marwell, Attorney-Adviser, Office of Legal Coun-
sel, from Allen Fisher, Archivist, Lyndon Baines Johnson Library (July 31, 2008). As
discussed below, see infra note 8, the Memorandum bears two date stamps from the
White House Central Files—January 27, 1967 and January 13, 1969.
117
33 Op. O.L.C. 114 (2009)
components, and none reports any historical record of having received the
Memorandum from the Johnson White House. 8
Other contemporaneous evidence from the Johnson White House fur-
ther supports the view that the signed Memorandum was held up for
revisions after the President’s signature and not ultimately released. On
January 17, 1967, a copy of the Memorandum was sent to Special Assis-
tant to the President for Domestic Policy Joseph Califano to determine
“whether and how this is to be distributed.” 9 By January 25, Califano had
voiced concerns to John Macy about permitting polygraph use in criminal
investigations. 10 In response, the Committee revised its report and draft
8 The agencies and components consulted include the Office of Personnel Manage-
ment, the Office of Special Counsel, the Merit Systems Protection Board, the Office of
the Director of National Intelligence, the Department of the Interior, the Department of
Energy, the Criminal Division of the Department of Justice, the Federal Bureau of
Investigation, and the Department’s Office of the Inspector General. The version of the
signed Memorandum in the archives is itself a photocopy. The Johnson Library has no
record of the original document. A clue to the fate of the original document may be drawn
from the fact that the surviving photocopy bears two White House Central Files date
stamps, from January 27, 1967 and January 13, 1969. Based on these stamps, it is possible
that the original signed Memorandum and surviving photocopy were first deposited in the
Central Files on January 27, approximately two weeks after the President’s signature and
shortly after circulation of a revised draft presidential memorandum that omitted the
“criminal investigation” exception. See infra note 10 and accompanying text. The second
date stamp on the surviving photocopy, and the absence of the original document, may
suggest that the documents were at some subsequent point removed from the Central
Files, with only the photocopy later re-deposited (acquiring the second date stamp) in the
final weeks of the Administration. That the archives do not contain the original signed
Memorandum may suggest that it was destroyed, perhaps deliberately, between January
27, 1967 and the end of the Administration; for instance, the original may have been
destroyed upon a final decision by the President to implement the Committee’s recom-
mendations through channels other than a presidential memorandum. See infra text
accompanying notes 22–25.
9 See Memorandum for Joseph A. Califano, Jr., from William J. Hopkins (Jan. 17,
1967), Ex JL, Box 1, WHCF, LBJL. The memo states that “[Assistant to the White House
Press Secretary] Tom Johnson now tells me that whether and how this is to be distributed
is in your hands.”
10 See Memorandum for Joseph A. Califano, Jr., from John W. Macy, Jr. (Jan. 25,
1967), Box 356 (1058), Office Files of James C. Gaither, LBJL (“Jan. 25 Macy Memo-
randum”) (circulating versions of report, presidential memorandum, and press release
“rewritten in accordance with our discussion the other day”); Letter for Joe Califano from
Harry C. McPherson (Feb. 2, 1967), Box 356 (1058), Office Files of James C. Gaither,
LBJL (“Feb. 2 McPherson Letter”) (“John Macy has gone back to his inter-departmental
118
Status of Presidential Memorandum on Use of the Polygraph
memorandum, deleting the exception for criminal investigations that is
contained in the version of the memorandum signed by the President, and
circulated the revised documents for White House review. 11 Notably, the
revised documents included a draft press release that made no mention of
an earlier policy. 12 Had President Johnson released the signed version of
the Memorandum to heads of all departments and agencies only weeks
earlier, it seems unlikely that a subsequent press release would have been
silent about a substantial change to a recent, government-wide directive.
This view is further supported by the Johnson Administration’s internal
discussions and public statements about congressional efforts in 1967 and
1968 to pass legislation restricting the federal government’s use of poly-
graphs. In February 1967, for instance, Harry McPherson, Special Assis-
tant and Counsel to the President, urged Califano with respect to the
revised report and memorandum (which prohibited polygraph use in
criminal investigations) to “go back to the boss with this and try to get it
issued” because, in his view, the Administration “need[ed] to do some-
thing constructive in this field before Sam Ervin [Chairman of the Sub-
committee on Constitutional Rights of the Senate Judiciary Committee]
starts to train his guns on [John Macy] again.” 13 Indeed, Senator Ervin
introduced legislation in 1967 (which was not ultimately enacted) that
would have restricted polygraph testing of Executive Branch employees
and job applicants, with limited exceptions. 14 But as late as May 1967, the
committee on the use of the polygraph, and they have agreed to eliminate the ‘criminal
investigation’ exception.”); see also Draft Memorandum for the President from Joe
Califano (undated), Box 356 (1058), Office Files of James C. Gaither, LBJL (“As you
may recall, the Committee originally recommended allowing the use of the polygraph in
criminal investigations, but, upon reconsideration after a meeting between John Macy,
McPherson, and me, limited the recommendation to national security cases.”).
11 Jan. 25 Macy Memorandum, supra note 10.
12 See Draft White House Press Release on Use of Polygraph (attachment to Jan. 25
Macy Memorandum, supra note 10).
13 See Feb. 2 McPherson Letter, supra note 10; see also Memorandum for Joe Cali-
fano, Special Assistant to the President for Domestic Policy, from Jim Gaither, Staff
Assistant to the President (Mar. 27, 1967), Box 356 (1058), Office Files of James C.
Gaither, LBJL (proposing additional revisions to the report and draft memorandum to be
made prior to documents’ release).
14 See S. 1035, 90th Cong. §§ 1(f ), 6 (1967) (reprinted in Privacy and the Rights of
Federal Employees: Hearing Before the Subcomm. on Manpower and Civil Service of
119
33 Op. O.L.C. 114 (2009)
Civil Service Commission deferred adopting any “final” position on the
bill’s polygraph provisions because “[w]ith respect to the executive
branch in general, results of the study by the President’s Inter-Agency
[Polygraph] Committee . . . have not yet been issued.” 15
We are aware of no historical evidence that President Johnson approved
the revised memorandum to agency and department heads. To the contra-
ry, nearly a year later, on April 15, 1968, Macy again wrote to the Presi-
dent asserting that “the time is right for Executive Branch action” on
polygraphs and enclosing another copy of the revised report and memo-
randum he had circulated in late January 1967. Although summarizing
other aspects of the Committee’s work and history, Macy made no men-
tion of the President’s approval of the original report or Memorandum, or
of any directive issued to heads of departments and agencies at that time.
Further, Macy advised the President in April 1968 that “there are three
options” available to implement the Committee’s recommendations: “[a]
Presidential directive to heads of departments and agencies setting forth
the new policy,” “[a] Civil Service Commission directive as a Govern-
ment-wide statement of policy,” or “[n]o formal directive or announce-
ment but informal advice from the Civil Service Commission to responsi-
ble agency officials.” 16 Macy’s formulation of the policy options in the
present tense (“there are three options”), inclusion of the apparently as-
yet-unexecuted “option” of issuing a presidential memorandum to the
heads of departments and agencies, and suggestion that the Administra-
tion might still choose to have “[n]o formal directive,” all suggest the
earlier Memorandum was not in effect.
the H. Comm. on Post Office and Civil Service, 90th Cong. 2–20 (1968) (“Privacy Hear-
ings”)).
15 Letter for Sam J. Ervin, Jr., Chairman, Subcommittee on Constitutional Rights,
Committee on the Judiciary, from John C. Macy, Jr., Chairman, Civil Service Commis-
sion (May 9, 1967) (emphasis added) (reprinted in Privacy Hearings, supra note 14, at
57, 61).
16 Memorandum for the President from John W. Macy, Jr. (Apr. 15, 1968), Box 28,
Folder Ex PE 6 Investigations, WHCF, LBJL (“Apr. 15 Macy Memorandum”). Temple
concurred with Macy’s recommendation in an April 25 memorandum to the President.
Johnson instructed Temple to call him to discuss the matter, but available documents do
not reveal the outcome. See Memorandum for the President from Larry Temple (Apr. 25,
1968), Box 28, Folder Ex PE 6 Investigations, WHCF, LBJL.
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Status of Presidential Memorandum on Use of the Polygraph
White House correspondence further suggests that as late as June 1968,
the Johnson Administration still had not taken any definitive action on the
interagency Committee’s report. In that month, the House Subcommittee
on Manpower and Civil Service called John Macy to testify on Executive
Branch polygraph use in connection with hearings on Senator Ervin’s
bill. 17 Macy suggested that he tell Congress “the policy of the Executive
Branch . . . prohibits the use of the polygraph with the limited exception
of personnel investigations and operations in the intelligence area,” ex-
plain the work of the interagency Committee, and state that “legislative
action is not required in view of these administrative steps which have
accomplished the same purpose.” 18 The President rejected Macy’s rec-
ommendation in favor of the position of Special Counsel Larry E. Temple,
who argued that “there is much to be said for an expression of Congres-
sional will in this area—even though the recommendations of the Inter-
Agency Committee might be implemented without legislation.” 19 The
President approved instructions for Macy to testify that “[t]he Executive
Branch has not formulated any final position or Government-wide policy
on the use of the polygraph,” that an interagency study had been undertak-
en at the President’s direction, and that the legislation under consideration
was “consistent with and parallel [to] the conclusion reached by this Inter-
Agency Committee.” 20
17 See Privacy Hearings, supra note 14, at 27–55 (statement of John W. Macy, Jr.,
Chairman, Civil Service Commission).
18 Memorandum for the President from John W. Macy, Jr. (June 10, 1968), Box 28,
Folder Ex PE 6 Investigations, WHCF, LBJL (“June 10 Macy Memorandum”).
19 See Memorandum for the President from Larry Temple (June 10, 1968), Box 28,
Folder Ex PE 6 Investigations, WHCF, LBJL (emphasis added).
20 Id. (emphasis added). Temple’s memorandum included lines for the President’s
direction entitled “Agree,” “Disagree,” and “Tell Macy.” The President checked “Agree”
and “Tell Macy.” Consistent with Temple’s recommendation (adopted by President
Johnson) that Macy make a statement about polygraph policy “if—and only if—he
receives an inquiry about his position on the Ervin bill,” id., Macy appears to have
avoided discussing the Administration’s position or testifying that the Administration had
not yet formulated a polygraph policy. He did, however, testify that “[a]t the present time
the polygraph is only used by the national intelligence and security agencies in connection
with employment. It is not used by any of the civilian agencies. It is not used in any
instances where an employee in the competitive civil service is selected.” Privacy Hear-
ings, supra note 14, at 52. Significantly, the policy described in Macy’s June 1968
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33 Op. O.L.C. 114 (2009)
President Johnson’s apparent direction to Macy to testify that the Exec-
utive Branch “has not formulated any final position or Government-wide
policy” on polygraph examinations is difficult to reconcile with the possi-
bility that the President understood the Executive Branch to be bound at
that time by the terms of the January 1967 Memorandum. Similarly,
Temple’s comment that the Committee’s recommendations “might be
implemented without legislation” appears to reflect the assumption that
those recommendations had yet to be issued. Indeed, even Macy himself,
who proposed telling Congress that the Executive Branch had adopted a
policy, evidently had in mind the version of the policy from the revised
documents, rather than the earlier signed Memorandum; Macy’s proposed
testimony acknowledged a “limited exception”—in the singular—to the
general ban on polygraph use, for “personnel investigations and opera-
tions in the intelligence area,” making no reference to the exception for
criminal investigations included in the signed Memorandum. 21
Shortly after Macy’s June 1968 testimony, the Civil Service Commis-
sion issued a policy for inclusion in the Federal Personnel Manual govern-
ing polygraph use in pre-employment screening of applicants and appoin-
tees to the federal competitive service. 22 The content of, and circum-
stances surrounding, this policy suggest that it may have been the vehicle
by which the Johnson Administration implemented the interagency Com-
mittee’s recommendations, consistent with Macy’s April 1968 suggestion
testimony is inconsistent with the position set forth in the Johnson Memorandum, which
would have permitted broader polygraph use, including in criminal investigations.
21 June 10 Macy Memorandum, supra note 18.
22 See Federal Personnel Manual Letter No. 736-4, Full Field Investigations on Com-
petitive Service Employees and Applicants for Critical-Sensitive Positions, attachment,
Use of the Polygraph in Personnel Investigations of Competitive Service Applicants and
Appointees to Competitive Service Positions (Oct. 25, 1968). The polygraph policy
attached to Letter 736-4 was later incorporated into appendix D of chapter 736 of the
Federal Personnel Manual. See Federal Personnel Manual ch. 736, app. D, Use of the
Polygraph in Personnel Investigations of Competitive Service Applicants and Appointees
to Competitive Service Positions (Mar. 3, 1969) (reprinted in Norman Ansley, Polygraph
and the Law at 3-12 to 3-13 (1990)). See also The Use of Polygraphs and Similar Devices
by Federal Agencies: Hearings Before a Subcomm. of the H. Comm. on Government
Operations, 93d Cong. 408–10 (1974) (statement of Anthony L. Mondello, General
Counsel, Civil Service Commission) (reprinting polygraph policy as codified in chapter
736, appendix D of Federal Personnel Manual). The Federal Personnel Manual was
abolished in 1993. See Office of Personnel Management, FPM Sunset Document (1993).
122
Status of Presidential Memorandum on Use of the Polygraph
that the Civil Service Commission issue a polygraph directive. 23 The
Commission’s polygraph policy issued in October of that year closely
tracked the structure and language of the personnel investigation section
from the Johnson Memorandum (which in turn was largely identical to the
relevant sections of the revised version from late January). The Commis-
sion’s policy, for instance, permitted polygraph use in pre-employment
screening only by an agency with “a highly sensitive intelligence or
counterintelligence mission directly affecting the national security,” and
only when such an agency had received approval of its rules from the
Chairman of the Civil Service Commission. The policy further established
procedural and substantive protections that closely tracked the require-
ments set forth in the Johnson Memorandum (and Committee recommen-
dations), including advance notice to the prospective employee of his
privilege against self-incrimination, advance notice of the effect of the
polygraph examination (or a refusal to submit) on eligibility for employ-
ment, and an assurance that refusal to submit would not be made a part of
a personnel file. The Commission’s policy did not, however, mention any
presidential directive on the subject.
Subsequent Executive Branch practice also suggests that the Civil Ser-
vice regulations were issued in lieu of a formal presidential directive. In
1974, the General Counsel of the Civil Service Commission testified in
congressional hearings on Executive Branch polygraph use that “as a
result of” the 1965 interagency study on polygraph use, “the Commission
[had] promulgated instructions governing the use of the polygraph for
employment screening . . . [involving] competitive service positions.”
The Use of Polygraphs and Similar Devices by Federal Agencies: Hear-
ings Before a Subcomm. of the H. Comm. on Government Operations, 93d
Cong. 408 (1974) (statement of Anthony L. Mondello). Neither the Civil
Service Commission nor any other federal agency mentioned the Johnson
Memorandum or any other presidential directive during the hearings. 24
23 Apr. 15 Macy Memorandum, supra note 16, at 2.
24 A similar understanding appears to have been in place during the Reagan Admin-
istration. For example, a March 1982 interagency report recommended expanded use
of polygraph examinations in leak investigations of federal employees, but made no
mention of any government-wide polygraph policy. See Report of the Interdepartmental
Group on Unauthorized Disclosures of Classified Information (Mar. 31, 1982) (reprinted
in Presidential Directive on the Use of Polygraphs and Prepublication Review: Hearings
before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary
123
33 Op. O.L.C. 114 (2009)
In 1984, the Office of Personnel Management (“OPM”), successor to the
Civil Service Commission, re-codified the October 1968 policy to take
account of President Reagan’s March 1983 National Security Decision
98th Cong. 166–80 (1983) (“Presidential Directive Hearings”)). President Reagan’s
National Security Decision Directive 84, which, in pertinent part, directed agencies with
access to classified information to revise their regulations and policies “so that employees
may be required to submit to polygraph examinations” in leak investigations, discussed
several executive orders relevant to the control of classified information, but made no
reference to the Johnson Memorandum or any government-wide policy. See Safeguarding
National Security Information, Nat’l Sec. Decision Directive at 84, ¶ 5 (Mar. 11, 1983)
(“NSDD-84”). Nor are we aware of any reference to the Johnson Memorandum in Con-
gress’s response to NSDD-84. See, e.g., H.R. 4681, 98th Cong. (1984) (proposed legisla-
tion that would have prohibited polygraph testing of federal employees except in cases of
alleged criminal conduct) (reprinted in H.R. Rep. No. 98-961, pt. 1, at 1–4 (1984));
Presidential Directive Hearings at 79 (statement of Arch S. Ramsey, Associate Director
for Compliance and Investigations, Office of Personnel Management, summarizing OPM
polygraph policy without mention of Johnson Memorandum); H.R. Rep. No. 98-578, at
5–7 (1983) (describing history of federal polygraph use, including interagency Committee
and 1968 civil service regulations, with no mention of Johnson Memorandum); H.R. Rep.
No. 98-961, pt. 1, at 43–45 (same).
Department of Justice policies and statements from this time period appear consistent
with this understanding. In 1980, this Office concluded, without mention of the Johnson
Memorandum, that the Attorney General had authority to compel employees to submit
to polygraph examinations in the context of investigations of improper disclosures of
information about pending criminal investigations. See Use of Polygraph Examinations
in Investigating Disclosure of Information About Pending Criminal Investigations, 4B Op.
O.L.C. 421, 429 (1980). In addition, a 1983 memorandum of this Office observed that
both the FBI and the Department as a whole had policies permitting compulsory poly-
graph testing of employees and the drawing of adverse inferences against employees who
refused testing. See Memorandum for A.R. Cinquegrana, Deputy Counsel for Intelligence
Policy, Office of Intelligence Policy and Review, from Theodore B. Olson, Assistant
Attorney General, Office of Legal Counsel, Re: Implementation of Polygraph Policy in
National Security Decision Directive 84 at 7–8 (Aug. 22, 1983). The Department took a
similar position in an October 1983 hearing. See Review of the President’s National
Security Decision Directive 84 and the Proposed Department of Defense Directive on
Polygraph Use: Hearing Before Subcomm. on Legislation and Nat’l Sec. of the H. Comm.
on Government Operations, 98th Cong. 163, 204–05 (1983) (announcing comprehensive
administration policy allowing polygraph use “as a condition of initial or continuing
employment with or assignment to CIA and NSA” and similarly sensitive positions “as a
condition of access to highly sensitive categories of classified information,” “to investi-
gate serious criminal cases,” and “to investigate serious administrative misconduct cases .
. . including unauthorized disclosure of classified information”). These documents suggest
the Department at the time was either unaware of the Johnson Memorandum or under-
stood it to lack legal effect.
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Status of Presidential Memorandum on Use of the Polygraph
Directive 84. OPM stated at that time that “[w]ith the concurrence of
President Lyndon B. Johnson, the following rules, incorporated in an
interagency committee report dated July 29, 1966 . . . remain in effect.” 25
Had the Johnson Memorandum been in effect as a binding directive in
1984, it is difficult to see why OPM would have cited an “interagency
committee report” rather than the presidential Memorandum, or would
have referred merely to the President’s “concurrence.” A 1996 proposed
rulemaking by OPM superseding the polygraph provisions in the (by then
withdrawn) Federal Personnel Manual (“FPM”) reflected the same under-
standing. See Suitability, National Security Positions, and Personnel
Investigations, 61 Fed. Reg. 394, 396 (Jan. 5, 1996) (“[T]he former FPM
contained limitations upon using polygraphs in personnel investigations,
based upon a July 29, 1966, interagency committee report approved by
former President Lyndon B. Johnson.”). At various times, congressional
entities have expressed a similar understanding. See, e.g., H.R. Rep. No.
98-578, at 5–6 (1983) (summarizing federal polygraph policy beginning
with the work of the interagency Committee, noting issuance of the Civil
Service Commission regulations, but making no mention of a presidential
directive); see also Office of Technology Assessment, Scientific Validity
of Polygraph Testing at 34 (1983) (“The recommendations [of President
Johnson’s interagency Committee] made at that time concerning person-
nel screening were promulgated as Civil Service regulations on regulating
the use of polygraphs in personnel investigations of competitive service
applicants and appointees to competitive service positions.”). Some schol-
arly accounts have also reached this conclusion. See, e.g., Priscilla M.
Regan, Legislating Privacy 152 & nn.32–33 (1995) (citing Civil Service
regulations and Department of Defense polygraph policy as reflecting
“[t]he general [polygraph] policy of the federal government” in the
1970s).
We are aware of some more recent references to the Johnson Memo-
randum, such as a 1999 rulemaking by the Department of Energy express-
ing the belief that the agency’s polygraph policy was “clearly permitted”
under the Johnson Memorandum. See Polygraph Examination Regulation,
25Federal Personnel Manual ch. 736, § 2-6(a) (1984); see also Federal Personnel Man-
ual ch. 732, § 3-4, Use of the Polygraph in National Security Investigations (Aug. 15,
1991) (later edition of Manual addressing use of polygraph examinations in national
security investigations and containing same statement).
125
33 Op. O.L.C. 114 (2009)
64 Fed. Reg. 70962, 70964 (Dec. 17, 1999). Similarly, in 1998 the De-
partment of the Interior submitted a polygraph policy to the Attorney
General for her review and approval, in apparent reliance on the Johnson
Memorandum. In recommending that the Attorney General approve the
request, the Criminal Division apparently accepted (without discussion)
that the Johnson Memorandum had been “issued” by the President and
that it imposed binding “requirements” that were satisfied by the proposed
policy. See Memorandum for the Attorney General from James K. Robin-
son, Assistant Attorney General, Criminal Division, Re: Department of
the Interior Policy on the Use of the Polygraph in Criminal Investigations
at 1 (Sept. 17, 1999); id. at 5 (approval of polygraph policy by Attorney
General Janet Reno); see also OIG Report at 6 & n.15 (describing Sep-
tember 17 memorandum). We believe, however, that the uncontroverted
contemporaneous evidence that the Johnson Memorandum did not have
legal effect (and similar evidence during the succeeding two decades)
outweighs these more recent references.
In sum, the overwhelming weight of historical evidence of which we
are aware supports the conclusion that the Johnson Memorandum was
never issued and did not take effect. Whatever the President’s intent was
in signing the document, contemporaneous White House records provide
uncontroverted evidence that the Memorandum was deliberately held up
from release or distribution within days of the President’s signature; that
in the months that followed, neither the President nor his senior White
House advisers understood the Memorandum to have taken effect; that a
year and a half after the signature, the President was still actively deciding
whether or not to issue a memorandum addressing polygraph use to the
Executive Branch; and that the President directed the Chairman of the
Civil Service Commission to testify to Congress that the Administration
“ha[d] not formulated any final position or Government-wide policy on
the use of the polygraph.” The evidence rather indicates that the Civil
Service Commission ultimately issued polygraph guidance applicable to
competitive service hiring and appointments that closely mirrored the
Johnson Memorandum and apparently served as an alternative to the
issuance of a presidential directive, and that for three decades following
the President’s signature, neither Congress nor senior Executive Branch
officials understood the Memorandum to be in effect.
We believe this historical record compels the conclusion that the John-
son Memorandum lacks any legal effect. This conclusion is informed by
126
Status of Presidential Memorandum on Use of the Polygraph
two related legal principles. First, in light of the substantial historical
evidence that the Johnson Memorandum was deliberately withheld after
signature, we draw support from the premise that a set of instructions
from a superior to his subordinates typically will not take effect until it is
communicated. Second, regardless of when or whether the Johnson Mem-
orandum might have taken effect, we conclude that the document would
not currently bind the Executive Branch, given the well-established rule
that the President may revoke or amend instructions to his subordinates at
will, and the uncontroverted evidence that President Johnson gave direc-
tives to his subordinates sufficient to deny the Memorandum further
effect.
It is a familiar principle of agency law that instructions from a principal
to a subordinate ordinarily are not operative until they have been commu-
nicated. Hornbook law teaches that “[a]n agent has a duty to comply with
all lawful instructions received from [a] principal . . . concerning the
agent’s actions on behalf of the principal.” Restatement (Third) of Agency
§ 8.09(2) (2006); see also Harold Gill Reuschlein & William A. Gregory,
The Law of Agency and Partnership § 69 (2d ed. 1990) (“The agent is
under a duty to follow instructions given by his principal.”). As the Re-
statement formulation indicates, such a duty is typically predicated on the
agent’s “recei[pt]” of such instructions. Restatement (Third) of Agency
§ 8.09(2); see also Restatement (Second) of Agency § 33 cmt. a (1958)
(“The implicit, basic understanding of the parties to the agency relation is
that the agent is to act only in accordance with the principal’s desires as
manifested to him.”) (emphasis added). According to the second Restate-
ment, “[a]n agent is subject to liability to his principal if he acts contrary
to orders contained in a notification given by the principal,” and a letter
containing such a notification would “normally [be] effective as notice
when it is received at the agent’s place of business.” Id. § 385 cmt. e
(emphasis added). A similar premise is reflected in the rule that an agent
will not be liable “for a departure from the will of the principal where the
principal’s orders are ambiguous, doubtful, or not explicit” and where the
agent has reasonably interpreted those orders. See 3 Am. Jur. 2d Agency
§ 214 (2002); see also 1 Floyd R. Mechem, A Treatise on the Law of
Agency § 1266 (2d ed. 1914) (“If the principal desires his instructions to
be pursued, it is obviously necessary that he should make them intelligible
and clear.”).
127
33 Op. O.L.C. 114 (2009)
While the law of agency may not be directly applicable to the Presi-
dent’s supervision and communication with subordinates, the requirement
of a manifestation from the principal reflects the pragmatic reality that
communication of an instruction is ordinarily a necessary antecedent to a
subordinate’s implementation of those instructions. The advice of this
Office has occasionally reflected this concern. See, e.g., Memorandum for
the Attorney General from Theodore B. Olson, Assistant Attorney Gen-
eral, Office of Legal Counsel, Re: Executive Privilege at 2 (Apr. 6, 1982)
(noting that “some communication to [agency heads] by the President [on
the subject of executive privilege] is necessary to ensure that they will
know what to do when faced with Congressional demands for infor-
mation”). 26 If nothing else, the Johnson Administration’s failure to dis-
tribute the Memorandum underscores the likelihood that the President did
not intend it to go into effect. 27
Even assuming, however, that the Johnson Memorandum took effect in
January 1967, the historical record compels the conclusion that President
Johnson took actions and gave directives sufficient to constitute a revoca-
tion of the original document. It is well established that “[t]he President
has the constitutional authority to supervise and control the activity of
subordinate officials within the executive branch.” The Legal Significance
26 This discussion should not be read as casting doubt on the President’s discretion,
absent circumstances not present here, to issue instructions or directives to his subordi-
nates in the Executive Branch in the manner and form of his choosing. Cf. Limitations on
Presidential Power to Create a New Executive Branch Entity to Receive and Administer
Funds Under Foreign Aid Legislation, 9 Op. O.L.C. 76, 76–77 (1985) (concluding that
where statute appropriated funds in general terms to “such department or agency of the
United States as the President shall designate,” the “designation could be accomplished in
several ways, from a formal executive order to an oral directive from the President”).
27 Although not controlling of the question before us, an analogous principle has been
recognized in the context of the President’s exercise of the appointment power. With
respect to an office from which an appointee is removable at will, courts and the Execu-
tive Branch have recognized the President’s authority to deny legal effect to a signed
commission by withholding its delivery to the appointee. See Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 162 (1803) (stating in dictum that where “an officer is removable at the
will of the executive . . . the act [of appointment] is at any time revocable[,] and the
commission may be arrested [by the President], if still in the office”); accord Case of
Franklin G. Adams, 12 Op. Att’y Gen. 304, 306 (1867) (“The effect [of the President’s
withholding a commission after signature] is a revocation of the appointment; not a
removal, but the exercise of the right of the President to stop it before the office vests in
the appointee.”).
128
Status of Presidential Memorandum on Use of the Polygraph
of Presidential Signing Statements, 17 Op. O.L.C. 131, 132 (1993); cf.
Myers v. United States, 272 U.S. 52, 135 (1926) (the President “may
properly supervise and guide [Executive Branch officers’] construction of
the statutes under which they act in order to secure that unitary and uni-
form execution of the laws which Article II of the Constitution evidently
contemplated in vesting general executive power in the President alone”).
As a corollary to the President’s general supervisory power, we have also
concluded that the President is generally free to amend or revoke instruc-
tions to his subordinates in a form and manner of his choosing. In Pro-
posals Regarding an Independent Attorney General, 1 Op. O.L.C. 75
(1977), for instance, Attorney General Griffin Bell observed that the
President “legally could revoke or supersede [an] Executive order at will.”
Id. at 77; accord Memorandum for the Attorney General from Charles J.
Cooper, Assistant Attorney General, Office of Legal Counsel, Re: Legal
Authority for Recent Covert Arms Transfers to Iran at 14 (Dec. 17, 1986)
(“Cooper Memorandum”) (“all executive orders [are] a set of instructions
from the President to his subordinates in the executive branch”). The same
understanding would hold for other presidential instructions, such as
memoranda and directives. See generally Legal Effectiveness of a Presi-
dential Directive, as Compared to an Executive Order, 24 Op. O.L.C. 29,
29 (2000) (noting that there is “no basis for drawing a distinction as to the
legal effectiveness of a presidential action based on the form or caption of
the written document through which that action is conveyed”).
Applying the Cooper Memorandum’s reasoning to the historical cir-
cumstances of the Johnson Memorandum provides support for the view
that, whatever President Johnson’s intent may have been in signing the
Memorandum, he gave clear expression to his subsequent understanding
that the Memorandum did not have legal effect. Most tellingly, eighteen
months after having signed the original polygraph memorandum, Presi-
dent Johnson directed the head of the Civil Service Commission to testify
before Congress that the Administration “has not formulated any final
position or Government-wide policy on the use of the polygraph.” 28 If the
28 See supra note 20 and accompanying text. NSDD-84 also appears to condone poly-
graph testing for investigations of unauthorized disclosures of classified information by
directing the revision of regulations so that employees might be required to submit to
polygraphs in the course of investigations of unauthorized disclosures of classified
129
33 Op. O.L.C. 114 (2009)
Memorandum had actually been released to agency heads, a correspond-
ingly public presidential revocation would be expected; but given the
Memorandum’s limited circulation among a small group of advisers, the
unqualified and sweeping nature of the President’s directive that a senior
Administration official disclaim publicly “any final position or Govern-
ment-wide policy” on polygraph use would have constituted a “valid
modification of, or exception to” the recently signed Memorandum, see
Cooper Memorandum at 14, sufficient to deny that document continuing
legal effect. 29
II.
In sum, we conclude that the Johnson Memorandum does not now bind
the Department of Justice or other entities in the Executive Branch, in
light of compelling historical evidence that the document was never
issued by the President and that President Johnson took actions subse-
quent to signature that under the circumstances here would have constitut-
ed a revocation of any such directive.
STEVEN G. BRADBURY
Principal Deputy Assistant Attorney General
Office of Legal Counsel
information, and by specifying that adverse action could be taken for failure to cooperate
with the examination. Id. at 2–3.
29 We need not address any limitations that might apply to revocation or amendment of
a presidential directive that arguably creates enforceable private rights. We doubt very
much that the Johnson Memorandum would have created judicially enforceable rights
even if it had been issued, cf., e.g., Facchiano Constr. Co. v. Dep’t of Labor, 987 F.2d
206, 210 (3d Cir. 1993) (“Generally, there is no private right of action to enforce obliga-
tions imposed on executive branch officials by executive orders.”); here, however, the
uncontroverted historical evidence demonstrates that the signed Memorandum was never
issued and that the President timely confirmed that the Memorandum was not in effect.
In such circumstances, there is no basis to suggest that the Memorandum created any
cognizable private right.
130