[Federal Register Volume 60, Number 52 (Friday, March 17, 1995)]
[Notices]
[Pages 14481-14482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6639]



[[Page 14481]]

DEPARTMENT OF THE TREASURY

[Treasury Order 107-05]


Communications With the White House Regarding Open 
Investigations, Adjudications or Civil and Criminal Enforcement Actions

    Dated: March 2, 1995.

    By virtue of my authority as Secretary of the Treasury, including 
the authority contained in 31 U.S.C. 321(b) and 5 U.S.C. 301 and 302, I 
hereby issue the following procedures for communications between the 
Department of the Treasury and the White House regarding open 
Department investigations, adjudications or civil or criminal 
enforcement actions.

1. General Procedures

    a. General Policy. In order to ensure the President's ability to 
perform his constitutional obligation to ``take care that the laws be 
faithfully executed,'' it is the policy of the Treasury Department to 
provide the White House with information on open investigations, 
adjudications, or civil (including administrative or regulatory) or 
criminal enforcement actions pending before or within any regulatory or 
law enforcement agency within the Department, where important for the 
performance of the President's duties, where appropriate from a law 
enforcement and regulatory perspective and where consistent with these 
procedures.
    b. Referral Procedures. The below listed procedures are established 
to ensure the flow of appropriate information between the Department 
and the White House. Central to these procedures is the need for 
consultation with Department senior policy officials,1 including 
the General Counsel. The General Counsel is authorized to issue more 
detailed guidance should he or she determine it to be necessary.

    \1\Department senior policy officials shall include those 
Treasury officials at the Assistant Secretary level and above as set 
forth in Treasury Order 101-05 and the organization chart attached 
thereto.
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OPI: AGC (Enforcement)
    (1) Action to be Taken by Department Employees/Senior Policy 
Officials. If a Department employee determines that a matter involving 
an open investigation, adjudication, or enforcement action under his or 
her jurisdiction should be communicated to the White House, he or she 
shall inform, through the appropriate Department senior policy 
official, the General Counsel about this matter.
    (2) Action to be Taken by Treasury Bureau Employees/Bureau Heads. 
If an employee of a Treasury law enforcement or financial regulatory 
bureau or the Office of Foreign Assets Control (``Treasury Bureau'') 
believes that a matter involving an open investigation, adjudication or 
enforcement action under his or her jurisdiction should be communicated 
to the White House, he or she shall contact, through the Treasury 
Bureau head, the Department senior policy official to whom that 
Treasury Bureau head directly reports. If the senior policy official 
concurs with that recommendation, he or she shall then inform the 
General Counsel about this matter.
    (3) General Counsel Review and Final Determination. The General 
Counsel shall provide the Department senior policy official with his or 
her recommendation concerning the advisability of disclosing the 
information to the White House. The General Counsel is authorized to 
preclude transmittal of the information on legal or ethical grounds. If 
the General Counsel believes that disclosure should not be made based 
on other than legal or ethical grounds, the General Counsel shall 
inform the appropriate senior policy official of this recommendation.
    (4) Other Final Determinations. Unless precluded on legal or 
ethical grounds by the General Counsel, the Department senior policy 
official referred to in paragraph 1.b.(1) or 1.b.(2) shall make the 
final determination on whether the information should be communicated 
to the White House. If the Department senior policy official determines 
that such information should be communicated to the White House, he or 
she shall request the General Counsel to make the initial 
communication.
    c. Communications.
    (1) Initial Contact with White House. Initial communications 
between the White House and the Treasury Department regarding any 
pending Department investigation, adjudication or criminal or civil 
enforcement action shall involve only the Counsel to the President or 
the Deputy Counsel and the General Counsel or the Deputy General 
Counsel. No Treasury or bureau employee shall initiate communications 
on these matters with the White House other than as provided in 
paragraph 1.c. Any Treasury or bureau employee in possession of 
information pertaining to any pending criminal referrals and criminal 
investigations shall keep the information in strict confidence and 
shall not disclose the information to any person except in accordance 
with applicable law, Treasury standards and this Order.
    (2) Continuing Contact. After the initial contact, further contact 
on a matter deemed appropriate for communications pursuant to this 
Order shall be directed to the White House Counsel's Office by the 
General Counsel, the Deputy General Counsel or the appropriate senior 
policy official designated by the General Counsel or any other lawyer 
in the Office of the General Counsel, as designated by the General 
Counsel.
    d. Writing Requirements. All proposals and decisions involving open 
Department investigations, adjudications or enforcement actions 
discussed herein that either propose or result in communications with 
the White House shall be detailed in contemporaneous, written 
memoranda.
    (1) Treasury Bureau Heads and Department Senior Policy Officials. 
All requests from Treasury Bureau Heads to Department senior policy 
officials and from Department senior policy officials to the General 
Counsel requesting a communication to the White House concerning an 
open investigation, adjudication or enforcement action shall be in 
writing. Such memoranda shall explain why the communication of 
information is important for the performance of the President's duties 
and appropriate from a law enforcement perspective.
    (2) General Counsel. The General Counsel shall also issue in 
writing his or her legal or ethical recommendation to the appropriate 
Department senior policy official in response to such request for 
communication with the White House.
    (3) Emergency Situations. If an emergency situation is present, the 
memoranda requested by paragraph 1.d. may be prepared as soon as 
practicable thereafter.
    e. Information Requests by the White House. Requests by the White 
House for information concerning open Department investigations, 
adjudications or civil or criminal enforcement actions shall be 
referred in all cases to the General Counsel. The General Counsel shall 
ensure that such requests are processed consistent with the provisions 
of this Order and any applicable White House guidance.

2. Open Investigations, Adjudications or Enforcement Actions Directly 
Involving the White House

    a. Contacts Directly Involving the White House. If the President, 
the Vice-President, a member of their families, a senior advisor or an 
employee of an office which the Chief of Staff (or any similar 
successor position) directly supervises, is an actual or potential 
[[Page 14482]] subject, target or witness of an open investigation, 
adjudication or enforcement action under the jurisdiction of the 
Treasury Bureaus, the determination of whether it is appropriate to 
disclose this information to the White House shall be made in 
accordance with this Order taking into consideration, among other 
things, the following:
    (1) whether disclosure would detrimentally affect the fundamental 
operation of an agency or other organization in the executive branch of 
the federal government;
    (2) whether disclosure of the information would promote or reduce 
the public confidence and trust in the integrity of elected officials 
and public servants or the Department's regulatory and law enforcement 
activities;
    (3) whether there exists an immediate threat of harm or injury to 
White House persons or property which disclosure will help to avoid;
    (4) whether the matter involves any sensitive or urgent national 
security or foreign policy concern that should be brought to the White 
House's attention;
    (5) whether disclosure of the information would interfere or assist 
with the Department's law enforcement and regulatory mission or an 
ongoing law enforcement or regulatory activity; and
    (6) whether non-disclosure could cause the White House to convey 
inaccurate or misleading information to the public.
    b. Secretary/Deputy Secretary Consultation. The Deputy Secretary 
shall be informed prior to any Department communications with the White 
House involving the matters subject to paragraph 2. The Deputy 
Secretary, in turn, may consult with the Secretary. The Secretary or 
Deputy Secretary may consult with the Attorney General or any other 
appropriate senior government official concerning the advisability of 
such disclosure or non-disclosure.
    c. Procedures. Subject to the procedures specified in paragraph 2., 
the procedures described in paragraph 1. herein shall apply to the 
communications described in paragraph 2.
    3. SCOPE. In the day-to-day functioning of the Department, there 
exist activities necessary to carry out the Department's law 
enforcement and regulatory mission. These may include routine law 
enforcement contacts, including administrative and regulatory contacts, 
designed to collect information through document requests, interviews, 
depositions or otherwise. Nothing in this Order shall be construed to 
amend the Department's current approach with respect to its handling of 
these routine activities.
    In addition, the procedures set forth in this Order do not apply to 
the following circumstances.
    a. Any communication subject to a specific statutory provision 
prohibiting or governing the disclosure of the information. (See, e.g., 
12 U.S.C. 1462a(b)(3) and 26 U.S.C. 6103.)
    b. Communications between the Secret Service and the White House 
concerning the Service's protective responsibilities.
    c. Communications between a Treasury Bureau and the National 
Security Council concerning open investigations or cases, if such 
disclosure is necessary for the conduct, determination or coordination 
of national security or foreign policy issues.
    d. Communications between the Department and the White House 
appropriate to properly respond to inquiries or requests for 
information or documents in the form of (i) civil and criminal 
discovery requests; (ii) subpoenas, including but not limited to, grand 
jury and congressional; (iii) other congressional requests for 
documents and information; and (iv) any other requests for information 
and documents authorized by law; provided that the exception created by 
paragraph 3.d. shall not apply to requests for information pertaining 
to those officials and individuals identified in paragraph 2. who are 
the subject, target or witness in an open investigation, adjudication 
or enforcement action.
    e. Communications between the Department and the White House 
appropriate to formulate an Administration position with respect to 
judicial review or settlement of pending litigation.
    f. Tax, security and background checks on prospective Federal 
employees and appointees, including Executive and Judicial Branch 
appointments under consideration by the President or the Department.
    g. Communications between the Inspector General or his or her 
authorized officials and the White House in furtherance of the duties 
and responsibilities of the Inspector General undertaken pursuant to 
the Inspector General Act of 1978, 5 U.S.C.A. App. 3.
Robert E. Rubin,
Secretary of the Treasury.
[FR Doc. 95-6639 Filed 3-16-95; 8:45 am]
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