Case 1:16-cv JEB Document 15 Filed 07/07/16 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:16-cv JEB Document 15 Filed 07/07/16 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) REPUBLICAN NATIONAL COMMITTEE ) ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv JEB ) UNITED STATES DEPARTMENT ) OF STATE ) ) Defendant. ) ) MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7, Plaintiff Republican National Committee ( Plaintiff ) hereby moves for summary judgment in this case ordering production in full and without redaction certain records that include daily electronic calendars reflecting the Schedule For President William J. Clinton. As more fully set forth in the accompanying Memorandum in Support of the Republican National Committee s Motion for Partial Summary Judgment, summary judgment ordering Defendant produce documents it claimed as exempt under 5 U.S.C. 552(b)(6) is appropriate. Plaintiff is entitled to summary judgment because: first, the movant shows that there is no genuine dispute as to any material fact as pertains to the calendars claimed as exempt under 5 U.S.C. 552(b)(6) and second, the movant is entitled to judgment as a matter of law. Defendant declined to produce the requested documents under the Freedom of Information Act and therefore bears the burden before the Court of proving the applicability of the claimed statutory

2 Case 1:16-cv JEB Document 15 Filed 07/07/16 Page 2 of 2 exemption. Defendant cannot make a showing sufficient to establish the applicability of the exemption. Thus, Plaintiff is entitled to summary judgment as a matter of law. In accordance with Local Rule 7(f), Plaintiff respectfully requests an oral hearing. Dated: July 7, 2016 Respectfully submitted, /s/ Jason Torchinsky JASON TORCHINSKY (DC Bar No ) Holtzman Vogel Josefiak Torchinsky PLLC 45 North Hill Drive, Suite 100 Warrenton, VA Phone: (540) Fax: (540) jtorchinsky@hvjt.law Attorney for Plaintiff

3 Case 1:16-cv JEB Document 15-1 Filed 07/07/16 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) REPUBLICAN NATIONAL COMMITTEE ) ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv JEB ) UNITED STATES DEPARTMENT ) OF STATE ) ) Defendant. ) ) MEMORANDUM IN SUPPORT OF THE REPUBLICAN NATIONAL COMMITTEE S MOTION FOR PARTIAL SUMMARY JUDGMENT INTRODUCTION On June 16, 2016, the Department of State ( State Department or Defendant ) produced to Plaintiff 162 pages of records that included daily electronic calendars reflecting the Schedule For President William J. Clinton. This should have been a meaningful production, but instead, Defendant completely redacted entire portions of the schedules (save for the accompanying local weather reports), asserting that the concealed information is subject to the personal privacy exemption under the Freedom of Information Act ( FOIA ), 5 U.S.C. 552(b)(6). (See Exhibit A at , ). But that exemption does not apply here, because former President Clinton s calendar was disseminated to at least 50 other persons, including individuals within the State Department among them at least four senior officials apparently to facilitate day-to-day operations of the agency while Hillary Clinton was Secretary of State. For the reasons briefed below, Plaintiff respectfully moves this Court for partial 1

4 Case 1:16-cv JEB Document 15-1 Filed 07/07/16 Page 2 of 8 summary judgment that these electronic calendar items of former President William J. Clinton are agency records that must be promptly produced to Plaintiff without redaction. STANDARD OF REVIEW FOIA cases are typically and appropriately decided on motions for summary judgment. Inst. for Policy Studies v. C.I.A., 885 F. Supp. 2d 120, 132 (D.D.C. 2012) (internal citations omitted). Under Federal Rule of Civil Procedure 56, [t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Summary judgment thus will be granted against a party who... fails to make a showing sufficient to establish the existence of an element essential to that party s case, and on which that party will bear the burden of proof at trial. Inst. for Policy Studies, 88 F. Supp. 2d at 132 (internal quotations and citations omitted). It is well understood that FOIA was conceived in an effort to permit access by the citizenry to most forms of government records. Vaughan v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). Accordingly, it provides that all documents are available to the public unless specifically exempted by the Act itself. Id.; accord Charles v. Office of Armed Forces Med. Exam r, 730 F. Supp. 2d 205, 211 (D.D.C. 2010) ( FOIA affords the public access to virtually any federal government record that FOIA itself does not specifically exempt from disclosure. ). Therefore, [w]hen an agency declines to produce a requested document, the agency bears the burden before the trial court of proving the applicability of claimed statutory exemptions. Summers v. Dep t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998) (citing 5 U.S.C. 552(a)(4)(B)); accord Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) ( Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents. ) (internal citations omitted). Furthermore, the agency must detail what proportion of the information 2

5 Case 1:16-cv JEB Document 15-1 Filed 07/07/16 Page 3 of 8 within a document is non-exempt and how that material is dispersed throughout the document, and [a]ny non-exempt information that is reasonably segregable from the requested records must be disclosed. Barnard v. Dep t Homeland Security, 531 F. Supp. 2d 131, 136 (D.D.C. 2008) (internal citations omitted). ARGUMENT The records at issue here, Schedule[s] For President William J. Clinton, plainly are not exempt from production by FOIA 552(b)(6). (See Exhibit A at , ). Section 552(b)(6) exempts only personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Critical to the Court s inquiry into whether the exemption applies is a determination of whether the redacted communications qualify as agency records subject to disclosure under FOIA. Clearly they do. Former President Clinton is a federal official; his staff is federally funded; he was receiving State Department briefs; and his calendar was distributed quite widely within, and without, the agency as evidenced by the more than 50 different recipients listed on the chain, at least four of whom were senior State Department officials at the time. 1 (See Exhibit A at 109, 113, 115, 155). The seminal case concerning whether certain calendars or schedules qualify as agency records subject to FOIA is Bureau of National Affairs v. U.S. Department of Justice. Bureau of Nat l Affairs v. U.S. Dep t of Justice, 742 F.2d 1484 (D.C. Cir. 1984). In that case, the D.C. Circuit set forth four factors that must be weighed as part of a totality of the circumstances test to determine whether a document is an agency record : whether the documents were (1) within the agency s control, (2) generated by the agency, (3) placed into the agency s files, and (4) used 1 Those State Department personnel include: Andrew Shapiro, Assistant Secretary of the Bureau of Political-Military Affairs; Cheryl Mills, Chief of Staff and Counselor to the Secretary of State; Lona Valmoro, Scheduling, Office of the Secretary; and Philippe Reines, Deputy Assistant Secretary, Bureau of Public Affairs. (Exhibit A at 109, 113, 115, 155). 3

6 Case 1:16-cv JEB Document 15-1 Filed 07/07/16 Page 4 of 8 by the agency for any purpose. Id. at ; accord Consumer Fed n of Am v. Dep t of Agric., 455 F.3d 283, (D.C. Cir. 2006). Considerations of control and use must be assessed holistically. Cases, in other words, cannot be compartmentalized rigidly into either a control or a use analysis.... [T]he inquiry necessarily must focus on a variety of factors surrounding the creation, possession, control, and use of the document by an agency. Bureau of Nat l Affairs at 1490 (citing Crooker v. U.S. Parole Comm n, 730 F.2d 1, 5 (1st Cir. 1984)). The Bureau of National Affairs court distinguished and placed particular weight on whether the calendars and agendas at issue were used for official business or meant solely for personal use, concluding that if individuals within the agency relied on a document to perform their duties, then that document is an agency record subject to FOIA. See 742 F.2d at On the one hand, the court found that certain desk calendars maintained solely for the personal convenience of an individual official, and to which only his top assistants had occasional access, were personal in nature and thus not agency records. Id. at On the other hand, it deemed certain daily agendas to be agency records because they were distributed to top staff so that they would know the assistant attorney general s whereabouts on any given day and maintained to help facilitate day-to-day operations of the division. Id. at The court in Consumer Federation of America, moreover, found that the uses to which five senior USDA officials calendars were put were indistinguishable from the daily agendas in Bureau of National Affairs and thus subject to FOIA. 455 F.3d at 291. Those calendars reflected a distribution list detailing other agency employees who received them. The five officials ordered to produce their calendars had lengthy intra-agency distribution lists, while a sixth, less senior official who distributed his electronic appointment calendar only to his secretary did not have to produce it. Id. at 291,

7 Case 1:16-cv JEB Document 15-1 Filed 07/07/16 Page 5 of 8 The uses of the daily agendas in Bureau of National Affairs and the calendars in Consumer Federation of America are analogous to former President Clinton s widely distributed calendars. Indeed, the distribution list of 50 plus recipients (not merely a single secretary) of the Schedule[s] For President William J. Clinton qualifies as lengthy, by any definition. And although not generated within the State Department, the calendars themselves were under the agency s control and used for agency purposes. The record, in fact, reflects that State Department officials and Clinton Foundation officials worked essentially hand in glove, coordinating President Clinton s schedule and whom he would speak with, as well as talking points and even briefings with regard to political ramifications of certain meetings or events. (See, e.g., Exhibit A at 132 (Jeffrey Feltman, Principal Deputy Assistant Secretary, Bureau of Near Eastern Affairs, State Department, discussing the possible newsworthiness and political ramifications of former President Clinton participating in an event with Saif Qadhafi, son of former dictator of Libya, Col. Muammar Qadhafi, He could easily say that he discussed human rights with Qadhafi. )). Other examples abound. Thus, it is readily apparent that high-ranking State Department officials and Clinton Foundation personnel routinely shared information, coordinated talking points, and provided recommendations based on agency policy as to whether former President Clinton should attend certain meetings or events. The electronic calendar records at issue here merely are a function of, and inextricably intertwined with, that coordinated effort with the federal agency officials. Finally, any suggestion that former President Clinton is just a private citizen and the disclosure of his electronic calendars would constitute an unwarranted invasion of personal privacy would be absurd. There is a normal private citizen, and then there is a former President of the United States like President Clinton. The latter receives ongoing appropriations from the 5

8 Case 1:16-cv JEB Document 15-1 Filed 07/07/16 Page 6 of 8 federal government for staff and office space, lifetime security provided by federal government employees, and also engages in international travel and, among other quasi-official acts, meets with officials of foreign governments. Furthermore, with respect to this former president, because of the unprecedented intersection of federal government policy issues and ethical questions surrounding the Clinton Foundation, the State Department s extensive interest in the Clinton Foundation s activities while Hillary Clinton was Secretary of State is well documented. 2 Rarely, if ever, has a potential commander in chief been so closely associated with an organization that has solicited financial support from foreign governments. 3 The idea that former President Clinton s actions purely were or are those of a private citizen defies the imagination. (See, e.g., Exhibit A at 135) (transcript draft of former President Clinton comments to media, First of all, I have not gotten my talking points from the State Department ); (Exhibit A at 151) (request of Clinton aide, does State have TPs on the Netanyahu speech? ); (Exhibit A at 136) (statement of State Department official, Talking points requested by the Clinton Foundation are attached for your review ); (Exhibit A at 149) (statement of State Department official, the following Sensitive But Unclassified briefing papers on Haiti to you in advance of former President Clinton s trip to 2 In another case pending before the U.S. District Court for the District of Columbia, the court ordered the State Department to produce all s sent to and from former Secretary of State Hillary Clinton s scheduler in advance of 14 international trips pursuant to the parties joint status report. See Citizens United v. U.S. Dep t of State, Civil Docket No. 1:15-CV RMC (see Joint Status Report (filed June 27, 2016) and corresponding Minute Order (filed June 28, 2016)). 3 Foreign governments gave millions to foundation while Clinton was at State Dept., Washington Post, February 25, 2015, retrieved June 29, Available at: while-clinton-was-at-state-dept/2015/02/25/31937c1e-bc3f-11e e7ba8439ca6_story.html. 6

9 Case 1:16-cv JEB Document 15-1 Filed 07/07/16 Page 7 of 8 Haiti. Please let me know if we can be of further assistance. ); (Exhibit A at 150) (request of Clinton aide, To be sure WJC/we are prepared in case of any questions from the public and/or media in Haiti, could you send over the current State Dept position on the political (and overall) situation in Haiti, along with related suggested talking points ); (Exhibit A at 153) (request of Clinton aide, possible to get USG talking points on torture, gitmo, and north korea? ); (Exhibit A at ) ( Middle East Talking Points and Q&A and discussion of talking points). CONCLUSION The Supreme Court has repeatedly stated that in enacting FOIA, Congress sought to open agency action to the light of public scrutiny. U.S. Dep t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (internal citations omitted). The clear purpose of the widely distributed calendars was to facilitate official agency business. Numerous high-ranking State Department officials, as well as a host of others, were recipients of the electronic calendars. From that fact alone, these calendars blatantly were not personal in nature, but rather were distributed to conduct government business. Additionally, former President Clinton received talking points, briefings, and official advice from the State Department concerning his travel and meetings. The electronic calendars are directly related to this function. In balancing the Bureau of National Affairs factors as applied to former President Clinton s electronic schedules especially considering their use and wide distribution it thus becomes clear they are agency records subject to FOIA. Defendant cannot flout FOIA s purposes by hiding behind an exemption properly reserved for private citizens. Plaintiff, for all these reasons, is entitled to summary judgment, and former President Clinton s electronic calendars should be disclosed without redaction promptly. 7

10 Case 1:16-cv JEB Document 15-1 Filed 07/07/16 Page 8 of 8 Dated: July 7, 2016 Respectfully submitted, /s/ Jason Torchinsky JASON TORCHINSKY (DC Bar No ) Holtzman Vogel Josefiak Torchinsky PLLC 45 North Hill Drive, Suite 100 Warrenton, VA Phone: (540) Fax: (540) jtorchinsky@hvjt.law Attorney for Plaintiff Certificate of Service I hereby certify that on this 7th day of July, 2016, a copy of the foregoing has been sent via the CM/ECF notification system which served all counsel of record. /s/ Jason Torchinsky Jason Torchinsky 8

11 Case 1:16-cv JEB Document 15-2 Filed 07/07/16 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) REPUBLICAN NATIONAL COMMITTEE ) ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv JEB ) UNITED STATES DEPARTMENT ) OF STATE ) ) Defendant. ) ) [PROPOSED] ORDER GRANTING SUMMARY JUDGMENT Based upon the pleadings, motions, and evidence received by the Court, the Court hereby GRANTS the motion filed by Plaintiff Republican National Committee seeking summary judgment and ORDERS as follows: 1. The United States Department of State is hereby ORDERED to release promptly in full and without redaction all of former President William J. Clinton s electronic calendars, including but not limited to disclosure of those documents titled Schedule For President William J. Clinton. 2. This Order shall remain in effect through the remainder of these proceedings until such time as Defendant Department of State completes its document production. Date: United States District Judge

12 Case 1:16-cv JEB Document 15-3 Filed 07/07/16 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) REPUBLICAN NATIONAL COMMITTEE ) ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv JEB ) UNITED STATES DEPARTMENT ) OF STATE ) ) Defendant. ) ) STATEMENT OF MATERIAL FACTS Plaintiff Republican National Committee hereby submits this Statement of Material Facts in accordance with Local Rule 7(h): 1. William J. Clinton ( former President Clinton ) is the former President of the United States (see Exhibit B); 2. Former President Clinton is married to Hillary Clinton, who was the United States Secretary of State during the time in which the records in dispute were created; 3. On June 16, 2016, the Department of State ( State Department or Defendant ) produced to Plaintiff 162 pages of records that included daily electronic calendars reflecting the Schedule For President William J. Clinton (see Exhibit A); 4. Defendant completely redacted entire portions of the schedules, asserting that the concealed information is subject to the personal privacy exemption under the Freedom of Information Act ( FOIA ), 5 U.S.C. 552(b)(6) (see Exhibit A);

13 Case 1:16-cv JEB Document 15-3 Filed 07/07/16 Page 2 of 3 5. Former President Clinton s calendar was disseminated to at least 50 other persons, including individuals within the State Department (see Exhibit A); 6. Among the individuals within the State Department to which the calendar was distributed were at least four senior officials (see Exhibit A); 7. This calendar was apparently used to facilitate day-to-day operations of Defendant while Hillary Clinton was Secretary of State (see Exhibit A); 8. State Department officials and Clinton Foundation officials worked together coordinating President Clinton s schedule, whom he would speak with, and his attendance at certain meetings and events (see Exhibit A); 9. Former President Clinton is a federal official; he regularly received State Department briefs and talking points, he receives ongoing appropriations from the federal government for staff and office space which totaled nearly $1,000,000 in FY 2015, he receives lifetime security provided by federal government employees, he engages in international travel, and among other quasi-official acts, he meets with officials of foreign governments (see Former Presidents Act, 3 U.S.C. 102; see Exhibits A and B). The material facts as listed above are also more fully set forth in Plaintiff s Memorandum in Support of its Motion for Partial Summary Judgment.

14 Case 1:16-cv JEB Document 15-3 Filed 07/07/16 Page 3 of 3 Dated: July 7, 2016 Respectfully submitted, /s/ Jason Torchinsky JASON TORCHINSKY (DC Bar No ) Holtzman Vogel Josefiak Torchinsky PLLC 45 North Hill Drive, Suite 100 Warrenton, VA Phone: (540) Fax: (540) jtorchinsky@hvjt.law Attorney for Plaintiff

15 Case 1:16-cv JEB Document 15-4 Filed 07/07/16 Page 1 of 165 EXHIBIT A

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180 Case 1:16-cv JEB Document 15-5 Filed 07/07/16 Page 1 of 28 EXHIBIT B

181 Case 1:16-cv JEB Document 15-5 Filed 07/07/16 Page 2 of 28 Former Presidents: Pensions, Office Allowances, and Other Federal Benefits Wendy Ginsberg Analyst in American National Government Daniel J. Richardson Research Assistant March 16, 2016 Congressional Research Service RL34631

182 Case 1:16-cv JEB Document 15-5 Filed 07/07/16 Page 3 of 28 Former Presidents: Pensions, Office Allowances, and Other Federal Benefits Summary The Former Presidents Act (FPA; 3 U.S.C. 102 note) was enacted to maintain the dignity of the Office of the President. The act provides the former President and his or her spouse certain benefits to help him respond to post-presidency mail and speaking requests, among other informal public duties often required of a former President. Prior to enactment of the FPA in 1958, former Presidents leaving office received no pension or other federal assistance. The FPA charges the General Services Administration (GSA) with providing former U.S. Presidents a pension, support staff, office support, travel funds, and mailing privileges. Pursuant to statute, former Presidents currently receive a pension that is equal to pay for Cabinet Secretaries (Executive Level I), which for calendar year 2015 was $203,700. Executive Level I pay was increased to $205,700 for calendar year In addition to benefits provided pursuant to the FPA, former Presidents are also provided Secret Service protection and financial transition benefits to assist their transition to post-presidential life. Pursuant to the FPA, former Presidents are eligible for benefits unless they hold an appointive or elective office or position in or under the Federal Government or the government of the District of Columbia to which is attached a rate of pay other than a nominal rate. The President s FY2017 budget request seeks $3,865,000 in appropriations for expenditures for former Presidents, an increase of $588,000 (17.9%) from the FY2016 appropriation level. The increase in requested appropriations for FY2017 anticipates President Barack Obama s transition from incumbent to former President. For FY2016, President Obama requested and received appropriations of $3,277,000 for expenditures for former Presidents an increase of $25,000 from FY2015 appropriated levels. Some critics of the Former Presidents Act say the statute subsidizes Presidents who are not struggling financially. Others argue that although a former President is not in a formal public position, he remains a public figure and should be provided a pension and benefits that permit him to perform duties that emerge as a result of his public status. In the 114 th Congress ( ), the House and Senate are considering similar legislation that would amend the FPA. Both bills (H.R and S. 1411) would set a former President s pension at $200,000 annually, with increases each year by the same percentage authorized for benefits provided by the Social Security Act (42 U.S.C. 401). Both pieces of legislation would provide a former President an additional $200,000 annual allowance to be used as he determined and would remove other benefits currently provided to former Presidents including those currently provided for travel, staff, and office expenses. Additionally, the bills propose that for every dollar a former President earned in each fiscal year in excess of $400,000, his federal annuity would be reduced by $1. GSA data on payments to former Presidents show that the value of benefits provided to each of the living former Presidents when adjusted for inflation have generally declined from FY1998 through FY2015. The nominal appropriation levels for former Presidents benefits, however, increased through FY2011 and then declined from FY2011 through FY2015. This report provides a legislative and cultural history of the Former Presidents Act. It details the benefits provided to former Presidents and their costs. Congress has the authority to reduce, increase, or maintain the pension and benefits provided to former Presidents of the United States. This report considers the potential effects of maintaining the FPA or amending the FPA in ways that might reduce or otherwise modify a former President s benefits. Congressional Research Service

183 Case 1:16-cv JEB Document 15-5 Filed 07/07/16 Page 4 of 28 Former Presidents: Pensions, Office Allowances, and Other Federal Benefits Contents Introduction... Error! Bookmark not defined. Recent Legislation to Amend the FPA... 2 Varied Post-Presidency Circumstances... 3 International Comparisons... 4 Benefits Available to Former Presidents... 4 Transition Expenses... 2 Pensions... 2 Office Space and Staffing Allowances... 3 Travel Expenses... 4 Secret Service Protection... 5 Health Benefits... 6 Funerals... 6 Some Potential Policy Options for Congress... 7 The Informal Public Role of a Former President... 7 Expectations, Limitations, and Opportunities of a Former President... 8 Pensions of the Widows of Former Presidents... 9 Placing Limits on Certain Benefits... 9 Figures Figure 1. The Costs of Pensions and Benefits Provided to Former Presidents in FY2014 Dollars... 1 Tables Table 1. Annual GSA Allowance for Former Presidents... 5 Table 2. Total Appropriation of Pensions and Benefits Provided to Former Presidents, Adjusted to FY2014 Dollars... 7 Table 3. Annual Office Space Costs for Former Presidents, FY Table B-1. Retirement Period of Former Presidents After Leaving Office Appendixes Appendix A. Legislative History of the Former Presidents Act Appendix B. Post-Presidential Lifespans Contacts Author Contact Information... Error! Bookmark not defined. Acknowledgments... Error! Bookmark not defined. Congressional Research Service

184 Case 1:16-cv JEB Document 15-5 Filed 07/07/16 Page 5 of 28 Former Presidents: Pensions, Office Allowances, and Other Federal Benefits Introduction Prior to 1958, U.S. Presidents who left office received no federal pension or other financial assistance. Some former Presidents like Herbert Hoover and Andrew Jackson returned to wealthy post-presidential lives. Other former Presidents including Ulysses S. Grant and Harry S. Truman struggled financially. Still others including Andrew Johnson, John Quincy Adams, and William Howard Taft served formally in the federal government after their presidencies. 1 In 1958, prompted largely by former President Truman s financial difficulties, Congress enacted the Former Presidents Act (FPA; 3 U.S.C. 102 note). The FPA was designed to maintain the dignity of the office of the President by providing former Presidents and their spouses a pension and other benefits to help them respond to post-presidency mail and speaking requests, among other informal public duties often required of a former President and his spouse. 2 As administered by the General Services Administration (GSA), the act, as amended, provides former Presidents with a pension, funds for travel, office space, support staff, and mailing privileges. According to the FPA, upon leaving office, former Presidents are to receive a pension that is equal to the pay for the head of an executive department (Executive Level I), which was $203,700 in calendar year Executive Level I pay increased to $205,700 in calendar year The widow of a former President is authorized to receive an annual pension of $20,000. Currently, four former Presidents and one former First Lady receive pensions and benefits pursuant to the FPA. The President s FY2017 budget request seeks $3,865,000 in appropriations for expenditures for former Presidents, an increase of $588,000 (17.9%) from the FY2016 appropriation level. The request includes language stating that the appropriation includes funding for future former President Barack Obama. 4 President Obama s anticipated transition from incumbent to former President is scheduled to occur on January 20, For FY2016, President Obama requested and received appropriations of $3,277,000 for expenditures for former Presidents an increase of $25,000 from FY2015 appropriated levels (P.L ). The FPA is not the only authority that provides benefits to a former President. For example, pursuant to the Presidential Transition Act (3 U.S.C. 102 note), an outgoing President is entitled to receive seven months of transition services and facilities to assist his transition to postpresidential life. 5 Federal law also provides former Presidents and their spouses lifetime Secret 1 President Andrew Johnson served as a Senator after his presidency. President Taft served as Chief Justice of the U.S. Supreme Court after his presidency. John Quincy Adams served nine terms in the House after his presidency. President Grover Cleveland can also be said to have won federal elected office after leaving the Presidency. He is the only President to serve non-consecutive terms. President Cleveland was first elected to the Presidency in 1884 and was inaugurated on March 4, After losing the 1888 election to Benjamin Harrison, President Cleveland won the 1892 election and was again inaugurated as President on March 4, This report uses masculine pronouns to refer to former Presidents because they have all been men. 3 Appropriations for the Former Presidents Act are made for the fiscal year (October 1 through September 30 for each year). Pay increases for federal employees, in contrast, follow the calendar year. Former Presidents Act appropriations, therefore, must anticipate a potential pay increase that may begin three months into the fiscal year. Pension data provided later in this report includes costs incurred during both calendar year 2015 and Ibid. 5 This report provides some additional information on the transition benefits provided to the former President. For (continued...) Congressional Research Service 1

185 Case 1:16-cv JEB Document 15-5 Filed 07/07/16 Page 6 of 28 Former Presidents: Pensions, Office Allowances, and Other Federal Benefits Service protection. 6 In 1994, the law was amended to limit U.S. Secret Service coverage to 10 years for any President who entered office after January 1, President George W. Bush and his wife Laura Bush would have been the first former President and first lady who faced this statutory limit. 8 The Former Presidents Protection Act of 2012 (P.L ), however, reinstated Secret Service protection for former Presidents and their spouses until their deaths. 9 The bill also reinstated Secret Service protection to the children of former Presidents until they are 16 years old. The bill was signed into law by President Barack H. Obama on January 10, Recent Legislation to Amend the FPA On April 14, 2015, Representative Jason Chaffetz, Chairman of the House Committee on Oversight and Government Reform, introduced the Presidential Allowance Modernization Act (H.R. 1777). Senator Joni Ernst introduced similar bill (S. 1411) with an identical title on May 21, The bills, among other changes, seek to cap a former President s pension at $200,000 removing the current pay link to that of Cabinet Secretaries. Both pieces of legislation seek to provide a former President an additional $200,000 annual allowance to be used as he determined. Pursuant to H.R and S. 1411, the values of a former President s pension and allowance would increase annually at the same percentage rate of increase authorized for benefits provided through the Title II of the Social Security Act (42 U.S.C. 401). Additionally, the bills seek to remove other benefits currently provided to former Presidents, including those currently provided for travel, staff, and office expenses. Also, for every dollar a former President earned in each fiscal year that was in excess of $400,000, both H.R and S would require that federal government-provided annual allowance be reduced by $1. Further, if a former President held an elected position in the federal or District of Columbia governments, the bills would require that he forfeit his rights to a pension until he left office. H.R And S also seek to raise the pension available to the widow of a former President, from $20,000 to $100,000. H.R was referred to the House Committee on Oversight and Government Reform. 10 On May 19, 2015, the House Oversight and Government Reform Committee amended and reported H.R in the nature of a substitute. The substitute language was nearly identical to H.R. 1777, as introduced, but did not include language that would have required a former President to forfeit the pension benefit while he served an elected position in the District of Columbia government. (...continued) analysis of the Presidential Transition Act, see CRS Report RS22979, Presidential Transition Act: Provisions and Funding, by Henry B. Hogue U.S.C P.L , 530(a). 8 On September 26, 2008, legislation (P.L ; 122 Stat. 3560) that extends U.S. Secret Service protection to a Vice President, his or her spouse, and his or her children who are under 16 years old for up to six months after leaving office was enacted. Previous to the bill s enactment, Secret Service protection for a Vice President and his or her family was provided on an ad hoc basis. 9 Former first ladies maintain Secret Service protection until their deaths or divorce from the former President. If a former first lady outlives her husband, she either maintains Secret Services protection until her death or until she remarries. 10 Representative Chaffetz introduced bills identical to H.R in the 112 th Congress (H.R. 4093) and the 113 th Congress (H.R. 248). Both bills were introduced and referred to the House Committee on Oversight and Government Reform. No further action was taken on either H.R or H.R Congressional Research Service 2

186 Case 1:16-cv JEB Document 15-5 Filed 07/07/16 Page 7 of 28 Former Presidents: Pensions, Office Allowances, and Other Federal Benefits At a May 19, 2015, markup of H.R Representative Elijah Cummings, a co-sponsor of the bill, stated that taxpayers should not have to pay for a former President s allowance if the former President is making a comfortable living earning more than $400,000 a year after leaving office. 11 In the report to accompany H.R. 1777, the House Committee on Oversight and Government Reform stated that [u]pdating the pension and allowances provided to former Presidents who earn significant incomes is needed given the country s fiscal position. 12 On June 22, 2015, the Congressional Budget Office released a score of H.R. 1777, as reported, that stated the legislation would reduce federal outlays by $10 million from 2016 through The score estimated that at least two former Presidents would earn enough that they would not be eligible for an allowance beginning in On January 11, 2016, H.R passed the House. The next day, H.R was received in the Senate and referred to the Senate Committee on Homeland Security and Governmental Affairs. No further action has been taken on H.R On February 10, 2016, S was ordered to be favorably reported, as amended, by the Senate Committee on Homeland Security and Governmental Affairs. Among the amendments made at the markup were the inclusion of a provision clarifying that GSA would be required to work with the Secret Service to ensure that any reduction in benefits to the former President would not affect a former President s security. The amended bill also included a provision stating that office space leases for current former Presidents would not be affected by any reduction in benefits. In short, any reduction in benefits related directly to office space lease payments would not go into effect until the termination of an existing lease agreement. The amendments also removed the language that would have required a former President to forfeit the pension benefit while he served an elected position in the District of Columbia government. No further action has been taken on S Varied Post-Presidency Circumstances Some critics of the Former Presidents Act say it subsidizes Presidents who are not struggling financially. 15 In the 112 th Congress ( ), Representative Chaffetz, when introducing H.R. 4093, noted that while he did not want former presidents living the remainder of their lives destitute, that none of our former presidents are poor. 16 Others may argue that while a former President may not hold a formal public position, he remains a public figure even after he leaves office. When former President Harry S. Truman returned to Independence, MO following his presidential tenure, for example, he reportedly said it cost him $30,000 a year to reply to mail and requests for speeches. 17 Some may argue that to cover such costs, a former President should be 11 U.S. Congress, House Committee on Oversight and Government Reform, May 19, 2015 Business Meeting, at around 17: U.S. Congress, House Committee on Oversight and Government Reform, Presidential Allowance Modernization Act, report to accompany H.R. 1777, 114 th Cong., 1 st sess., July 16, 2015, H.Rept (Washington: GPO, 2015), p Congressional Budget Office, H.R Presidential Allowance Modernization Act, Washington, DC, June 22, 2015, at 14 Ibid., p. 2. The score does not state which two former Presidents are included in that estimate. 15 See, for example, Representative Jason Chaffetz, Reps. Chaffetz, Altmire, and Gowdy Introduce Cost-saving Presidential Allowance Modernization Act, press release, February 28, 2012, at 16 Ibid. 17 See, Dom Bonafede, Life After the Oval Office: Caring For Ex-Presidents Can Cost a Bundle, The National (continued...) Congressional Research Service 3