Memoranda & Opinions |
Overview of Document |
WHETHER THE PRESIDENT MAY HAVE ACCESS TO GRAND JURY MATERIAL IN THE COURSE OF EXERCISING HIS DISCRETION TO GRANT PARDONS
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The President, in the exercise of his pardon authority and responsibilities under Article II, Section 2, Clause 1 of the United States Constitution, may request that the pardon attorney include grand jury information in any recommendation he may make in connection with a pardon application if the President determines that his need for such information in considering that application outweighs the confidentiality interests embodied in Rule 6(e) of the Federal Rules of Criminal Procedure.
The prohibition in Rule 6(e) cannot constitutionally be applied to prevent the President from obtaining grand jury information already in the possession of the Executive Branch when the President determines that, for purposes of making a clemency decision, his need for that information outweighs the confidentiality interests embodied in Rule 6(e).
December 22, 2000 |
AUTHORIZATION FOR CONTINUING HOSTILITIES IN KOSOVO
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Pub. L. No. 106-31, The emergency supplemental appropriation for military operations in Kosovo, constituted authorization for continuing hostilities after the expiration at sixty days under section 5(b) of The War Powers Resolution.
December 19, 2000 |
AUTHORITY OF THE GENERAL SERVICES ADMINISTRATION TO PROVIDE ASSISTANCE TO TRANSITION TEAMS OF TWO PRESIDENTIAL CANDIDATES
gsatransitionopinion
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The Presidential Transition Act of 1963, with certain limited exceptions, authorizes the Administrator of the General Services Administration to provide transition assistance only for those services and facilities necessary to assist the transition of the "President-elect" and the "Vice-President-elect," as those terms are defined in the Act. Since there cannot be more than one "President-elect" and one "Vice-President-elect" under the Act, the Act does not authorize the Administrator to provide transition assistance to the transition teams of more than one presidential candidate.
November 28, 2000 |
PAYMENT OF ATTORNEY'S FEES IN LITIGATION INVOLVING SUCCESSFUL CHALLENGES TO FEDERAL AGENCY ACTION ARISING UNDER THE ADMINISTRATIVE PROCEDURE ACT AND THE CITIZEN-SUIT PROVISIONS OF THE ENDANGERED SPECIES ACT
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For purposes of settling attorney's fees claims in a case arising under both section 10 of the Administrative Procedure Act and the citizen-suit provisions of the Endangered Species Act, federal litigators, in allocating hours and costs between the APA-Equal Access to Justice Act and ESA claims, should subordinate EAJA section 2412(d) to ESA section 11(g)(4). Under this approach, hours and costs necessary to both counts should be assigned to the ESA claim for attorney's fees purposes, leaving only the hours and costs necessary only to the APA claim to be paid under EAJA.
November 27, 2000 |
STATE TAXATION OF INCOME OF CERTAIN NATIVE AMERICAN ARMED FORCES MEMBERS
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The Soldiers' and Sailors' Civil Relief Act prohibits States from taxing the military compensation of Native American armed forces members who are residents or domiciliaries of tribal reservations from which they are absent by reason of their military service.
November 22, 2000 |
USE OF AGENCY RESOURCES TO SUPPORT PRESIDENTIAL TRANSITION
gsatransitionopinion1final
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We adhere to the conclusion in our December 14, 1992 Memorandum that, under the Presidential Transition Act of 1963, an executive agency or department may provide office space, secretarial services, and other support services to members of the transition team from agency appropriations without reimbursement from the transition appropriation when the provision of such space and support by the agency, rather than by the transition team itself, would minimize disruption to the agency's operations caused by the transfer of the leadership of the agency.
Our conclusion in the 1992 Memorandum is not affected by the October 12, 2000 amendment to the Transition Act. Direct support services and office space for those workshops and orientations that the amendment authorizes should be provided by GSA out of the appropriation for the transition, unless their provision by a particular agency would minimize disruption of the agency's mission or operations.
November 22, 2000 |
DEFINITION OF CANDIDATE UNDER 18 U.S.C. § 207(j)
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Individuals who otherwise meet the specifications and limitations of § 207(j)(7)(A) and (B) should be deemed to be communicating on behalf of a "candidate" through the point at which that "candidate" assumes the office to which he has been elected.
November 6, 2000 |
APPLICATION OF 18 U.S.C. § 207(d) TO CERTAIN EMPLOYEES IN THE TREASURY DEPARTMENT
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The post-employment restrictions of 18 U.S.C. § 207(d), which cover officials paid "at" the rate for level I of the Executive Schedule, do not apply to officials paid at a higher rate. Those officials are instead subject to the restrictions of 18 U.S.C. § 207(c).
November 3, 2000 |
SECTION 235A OF THE IMMIGRATION AND NATIONALITY ACT
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Section 235A of the Immigration and Nationality Act, requires the Attorney General to establish and maintain certain preinspection stations provided the foreign countries concerned have consented to the establishment of such stations on their territory and provided that certain other preconditions have been satisfied.
Section 235A does not oblige the Attorney General or any other Executive Branch official to enter into diplomatic negotiations with foreign countries in order to obtain their consent to the establishment of preinspection stations on their territory, and it does not require that preinspection stations be established before the preconditions have been satisfied. Accordingly, section 235A does not unconstitutionally infringes on the President's authority to conduct diplomatic relations.
October 23, 2000 |
SHARING TITLE III ELECTRONIC SURVEILLANCE MATERIAL WITH THE INTELLIGENCE COMMUNITY
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Under Title III of the Omnibus Crime Control and Safe Streets Act, law enforcement officials may share with the intelligence community information obtained through surveillance authorized by courts pursuant to Title III where it is done to obtain assistance in preventing, investigating, or prosecuting a crime.
Law enforcement may also share with the intelligence community information obtained through surveillance authorized by the court pursuant to Title III where the information is of overriding importance to national security or foreign relations and disclosure is necessary for the President to discharge his constitutional responsibilities over these matters.
October 17, 2000 |
A SITTING PRESIDENT'S AMENABILITY TO INDICTMENT AND CRIMINAL PROSECUTION
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The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its
constitutionally assigned functions.
October 16, 2000 |
ENFORCEABILITY OF 18 U.S.C. § 1302
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Application of 18 U.S.C. § 1302 to prohibit the mailing of truthful advertising concerning lawful gambling operations (except as to state-operated lotteries in some circumstances) would violate the First Amendment. Accordingly, the Department of Justice will refrain from enforcing the statute with respect to such mailings.
September 25, 2000 |
APPLICABILITY OF GOVERNMENT CORPORATION CONTROL ACT TO TO GAIN SHARING BENEFIT AGREEMENT
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The Government Corporation Control Act does not require the National Aeronautics and Space Administration to obtain legislative authorization before entering into a "gain sharing benefit" agreement with a private corporation that grants NASA deferred cash payments based on an increase in the value of the corporation's common stock.
September 18, 2000 |
ADMINISTRATION OF CORAL REEF RESOURCES IN THE NORTHWEST HAWAIIAN ISLANDS
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The President may use his authority under the Antiquities Act to establish a national monument in the territorial sea.
The President may use his authority under the Antiquities Act to establish a national monument in the exclusive economic zone to protect marine resources.
The President may not establish a national wildlife refuge in the territorial sea or the exclusive economic zone using the implied power to reserve public lands recognized in United States v. Midwest Oil Co., 236 U.S. 459 (1915).
The authority to manage national monuments can, under certain circumstances, be shared between the Department of the Interior and other agencies, but the Fish and Wildlife Service must maintain sole management authority over any national wildlife refuge area within a monument. Regulations applicable to national monuments trump inconsistent fishery management plans, but the establishment of a national monument would not preclude the establishment of a national marine sanctuary in the same area.
September 15, 2000 |
APPLICABILITY OF THE PRIVACY ACT TO THE WHITE HOUSE
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The Privacy Act does not apply to the White House Office, which is also known as the Office of the President.
September 8, 2000 |
APPLICATION OF 18 U.S.C. § 209 TO EMPLOYEE-INVENTORS WHO
RECEIVE OUTSIDE ROYALTY PAYMENTS
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A federal government employee who obtains patent rights to an invention made in the course of federal employment ordinarily does not violate 18 U.S.C. § 209 by licensing the patent rights to a private entity and receiving royalty payments in exchange, because the payments are not "compensation for [the employee. s] services" in the government.
September 7, 2000 |
CONSTITUTIONALITY OF 18 U.S.C. § 1120
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Congress has clear constitutional authority to proscribe killings committed by escaped federal inmates serving life sentences, as provided in 18 U.S.C. § 1120, where the killings facilitate the escape or the avoidance of recapture.
Congress's penological and custodial interests in ensuring the incapacitation of life-sentenced federal inmates provide compelling support for the constitutionality of 18 U.S.C. § 1120 even when it is applied with respect to a post-escape killing that is not related to the escape or subsequent efforts to avoid recapture.
August 31, 2000 |
WHETHER A FORMER PRESIDENT MAY BE INDICTED AND TRIED FOR THE SAME OFFENSES FOR WHICH HE WAS IMPEACHED BY THE HOUSE AND ACQUITTED BY THE SENATE
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The Constitution permits a former President to be indicted and tried for the same offenses for which he was impeached by the House of
Representatives and acquitted by the Senate.
August 18, 2000 |
DIVISION OF POWER AND RESPONSIBILITIES BETWEEN THE CHAIRPERSON OF THE CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD AND THE BOARD AS A WHOLE
chemsafetyboardopinionfinal
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Under the Clean Air Act Amendments of 1990 and general principles governing the operation of boards, the day-to-day administration of Chemical Safety and Hazard Investigation Board matters and execution of Board policies are the responsibilities of the chairperson, subject to Board oversight, while substantive policymaking and regulatory authority is vested in the Board as a whole.
In disputes over the allocation of authority in specific instances, the Board's decision controls, as long as it is not arbitrary or unreasonable.
June 26, 2000 |
APPLICABILITY OF THE POST-EMPLOYMENT RESTRICTIONS OF 18 U.S.C. § 207(c) TO ASSIGNEES UNDER THE INTERGOVERNMENTAL PERSONNEL ACT
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The post-employment restrictions of 18 U.S.C. § 207(c) apply to persons who are assigned from a university or a state or local government to the Department of Energy under the Intergovernmental Personnel Act and are compensated at or above the ES-5 level, except for those who occupy positions ordinarily below the ES-5 level and who receive salaries only from the detailing employers, with the federal agency reimbursing those employers for an amount less than an ES-5 salary.
June 26, 2000 |
EPA ASSESSMENT OF PENALTIES AGAINST FEDERAL AGENCIES FOR VIOLATION OF THE UNDERGROUND STORAGE TANK REQUIREMENTS OF THE RESOURCE CONSERVATION AND RECOVERY ACT
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The Resource Conservation and Recovery Act authorizes the Environmental Protection Agency to assess penalties against federal agencies for violations of RCA's underground storage tank provisions. EPA's underground storage tank field citation procedures do not violate RCRA or the Constitution.
June 14, 2000 |
AUTHORITY FOR MILITARY POLICE TO ISSUE TRAFFIC CITATIONS TO MOTORISTS ON BOLLING AIR FORCE BASE
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Military Police have the authority to issue citations, enforceable in federal court, to motorists who violate traffic laws on Bolling Air Force Base.
Congress has given the General Services Administration limited authority over military installations for the narrow purpose of issuing and enforcing the regulations related to motor vehicle violations.
June 5, 2000 |
APPLICABILITY OF THE FEDERAL VACANCIES REFORM ACT TO VACANCIES AT THE INTERNATIONAL MONETARY FUND AND THE WORLD BANK
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The United States Executive Director and the Alternate United States Director at the International Monetary Fund and the World Bank are not part of an Executive agency, and therefore vacancies in those offices are not covered by the Federal Vacancies Reform Act.
May 11, 2000 |
CONTINUATION OF FEDERAL PRISONER DETENTION EFFORTS IN THE FACE OF A USMS APPROPRIATION DEFICIENCY
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It is doubtful that the "authorized by law" exception to the Antideficiency Act would allow the United States Marshals Service to continue to provide prisoner detention-related functions during a deficiency in its FPD budget, but it is likely that the "emergency" exceptions set forth in § 1342 and § 1515 of that statute would apply, in many, if not all, circumstances.
April 5, 2000 |
DATE OF APPOINTMENT FOR PURPOSES OF CALCULATING THE TERM OF AN INTERIM UNITED STATES ATTORNEY
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The appointment date for appointment of an interim United States Attorney is established by the Attorney General's intent, and here the form of order used by the Attorney General expressly states her intent - that the appointment is made upon satisfaction of the conditions that the office is vacant and the designee takes the oath of office.
March 16, 2000 |
ENFORCEMENT OF INA EMPLOYER SANCTIONS PROVISIONS AGAINST FEDERAL GOVERNMENT ENTITIES
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Section 274A of the INA, which establishes employer verification requirements and authorizes the INS to take enforcement actions against employers for failure to comply with those requirements, authorizes imposition of employer sanctions against federal government entities.
The Immigration and Naturalization Service can exercise this enforcement authority against persons and entities within all three branches in a manner consistent with the Constitution.
March 15, 2000 |
STARTING DATE FOR CALCULATING THE TERM OF AN INTERIM UNITED STATES ATTORNEY
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Under 28 U.S.C. § 546(c)(2), the 120-day term of an interim United States Attorney appointed by the Attorney General is calculated from the date of the appointment, rather than the date on which the vacancy occurred.
March 10, 2000 |
LEGAL EFFECTIVENESS OF A PRESIDENTIAL DIRECTIVE, AS COMPARED TO AN EXECUTIVE ORDER
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A presidential directive has the same substantive legal effect as an executive order. It is the substance of the presidential action that is determinative, not the form of the document conveying that action. Both an executive order and a presidential directive remain effective upon a change in administration, unless otherwise specified in the document, and both continue to be effective until subsequent presidential action is taken.
January 29, 2000 |
AUTHORITY OF THE ADVISORY BOARD FOR CUBA BROADCASTING TO ACT IN THE ABSENCE OF A PRESIDENTIALLY DESIGNATED CHAIRPERSON
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The Advisory Board for Cuba Broadcasting has the authority to meet and to conduct business without a presidentially designated chairperson or an acting chairperson. The Advisory Board for Cuba Broadcasting does not have the authority to elect an acting chairperson.
January 4, 2000 |
APPLICABILITY OF 18 U.S.C. § 205(A)(2) TO REPRESENTATION BEFORE NON-FEDERAL AGENCY
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18 U.S.C. § 205(a)(2), which bars a Federal employee from acting as an agent or attorney before any "agency . . . in connection with any covered matter in which the U.S. is a party or has a direct and substantial interest," applies only to Federal agencies and does not apply to state agencies or agencies of the District of Columbia.
January 3, 2000 |
