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Opinions of the Office of Legal Counsent - DOJ

U.S. Department of Justice

Office of Legal Counsel

1993 Memoranda & Opinions

Overview of Document

RECONSIDERATION OF PRIOR OPINION CONCERNING LAND-GRANT COLLEGES
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After reconsideration of a prior opinion, we adhere to the conclusion that the State of West Virginia may validly designate West Virginia State College as the beneficiary of appropriated funds under the Second Morrill Act of 1890. 

Reversing a prior conclusion, we find that the State's designation of the College as a Second Morrill Act beneficiary does not make that institution eligible for funds appropriated under certain statutes administered by the Department of Agriculture.

December 23, 1993

ADMISSIBILITY OF ALIEN AMNESTY APPLICATION INFORMATION IN PROSECUTIONS OF THIRD PARTIES
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The confidentiality provisions of the Immigration Reform and Control Act of 1986 generally bar federal prosecutors from introducing information from alien amnesty applications as evidence in criminal prosecutions of third parties, but the use of such information is not barred in prosecutions of third parties for crimes that facilitate, or are closely related to, the filing of a false amnesty application.

Justice Department use of amnesty application information is also subject to regulations issued by the Immigration and Naturalization Service. Those regulations limit such use against third parties to the prosecution of persons who have "created or supplied a false writing or document for use" in an amnesty application. 

December 22, 1993

CLARIFICATION OF PRIOR OPINION REGARDING BORROWING BY BANK EXAMINERS
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18 U.S.C. § 213, which prohibits federal bank examiners from borrowing from Federal Reserve member banks or other entities subject to examination by them, does not prohibit such examiners from receiving loans or credit from affiliates of covered banks merely because such affiliates are under "common control" with the bank or because the covered bank and the affiliate have a common majority of corporate officers or directors. 

An examiner would be prohibited from borrowing from such an affiliated entity, where the affiliate is serving as a conduit or "front" for the implementation of a loan that is actually extended due to the direction, instigation, or influence of the affiliated member bank or person connected therewith.

December 20, 1993

AUTHORITY TO PAY STATE AND LOCAL TAXES ON PROPERTY AFTER ENTRY OF AN ORDER OF FORFEITURE
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The Attorney General has discretionary authority to make payments of state and local tax claims against civilly forfeited property after a forfeiture order has issued, based on her equitable discretion to administer civilly forfeited property, under 21 U.S.C. § 881(b)-(e) and 28 U.S.C. § 524(c)(1). 

The Attorney General has discretion to pay state and local tax claims against criminally forfeited property, under the authority in those statutes to "take any other action to protect the rights of innocent persons which is in the interests of justice."

December 9, 1993

APPLICABILITY OF EXECUTIVE ORDER NO. 12674 TO PERSONNEL OF REGIONAL FISHERY MANAGEMENT COUNCILS 
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The appointed members of Regional Fishery Management Councils established under the Magnuson Fishery Conservation and Management Act and other personnel of those Councils are not Executive Branch employees for purposes of Executive Order No. 12674 and its implementing regulations, and thus are not subject to that Order. 

December 9, 1993

CONSTITUTIONALITY OF VESTING MAGISTRATE JUDGES WITH JURISDICTION OVER ASSET FORFEITURE CASES
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A statute vesting jurisdiction over asset forfeiture cases in magistrate judges would violate Article III of the Constitution.

December 6, 1993

WHETHER MISSOURI MUNICIPALITIES MAY TAX THE PORTION OF FEDERAL SALARIES VOLUNTARILY CONTRIBUTED TO THE THRIFT SAVINGS PLAN 
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Intergovernmental tax immunity does not preclude municipalities in Missouri from levying an earnings tax on the voluntary contributions of federal employees to the Thrift Savings Plan. 

November 10, 1993

THE LEGAL SIGNIFICANCE OF PRESIDENTIAL SIGNING STATEMENTS
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Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create "legislative history" remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.

November 3, 1993

CONSTITUTIONALITY OF HEALTH CARE REFORM 
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The proposed Health Security Act is well within the authority of the Congress under the Commerce Clause, and it does not violate Tenth Amendment or other principles of federalism. 

The proposal contains no unconstitutional takings of private property or infringement of liberty interests. 

The proposed delegation of administrative authority to the National Health Board, and, from it, to state alliances, is not an impermissible delegation of legislative authority.

October 29, 1993

APPLICABILITY OF THE EMOLUMENTS CLAUSE TO NON-GOVERNMENT MEMBERS OF ACUS
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Non-government members of the Administrative Conference of the United States (ACUS) are prohibited by the Emoluments Clause from accepting, absent Congress's consent, a distribution from their partnerships that includes some proportionate share of the revenues generated from the partnership's foreign government clients. 

Non-government members of ACUS are also generally forbidden, absent Congress's consent, from accepting payments from commercial entities owned or controlled by foreign governments.

October 28, 1993

LIABILITY OF THE UNITED STATES FOR STATE AND LOCAL TAXES ON SEIZED AND FORFEITED PROPERTY 
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In civil forfeiture proceedings (under 21 U.S.C. § 881), the United States is obligated to pay liens for state and local taxes accruing after the commission of the offense leading to forfeiture and before the entry of a judicial order of forfeiture, if the lien-holder establishes, before the court enters the order of forfeiture, that it is an innocent owner of the interest it asserts.

In criminal forfeiture proceedings (under 18 U.S.C. § 1963 or 21 U.S.C. § 853), the United States may not pay such liens because state and local tax lien-holders are not bona fide purchasers for value of the interests they would assert, and therefore do not come within any applicable exception to a statute that, upon entry of a court's final order of forfeiture, vests full ownership retroactively in the United States as of the date of the offense.

October 18, 1993

IMMIGRATION CONSEQUENCES OF UNDOCUMENTED ALIENS' ARRIVAL IN UNITED STATES TERRITORIAL WATERS
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Undocumented aliens interdicted within the twelve-mile zone that comprises the United States's territorial sea are not entitled to a hearing under the exclusion provisions of the Immigration and Nationality Act (INA).

The Immigration and Naturalization Service had the authority to promulgate an interpretative rule construing the "territorial waters" of the United States, as referred to in section 287 of the INA, to extend for twelve nautical miles.

October 13, 1993

SUSPENSION OF A UNITED STATES MARSHAL
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With the prior approval of the President, the Attorney General may suspend a United States Marshal without pay.

During the period of a United States Marshal's suspension, the Attorney General may designate an Acting United States Marshal to carry out the duties of the office.

September 23, 1993

REIMBURSEMENT FOR COSTS OF ATTENDING CERTAIN BANQUETS
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Employees in the United States Attorneys' offices may properly be reimbursed for the costs of attending retirement banquets for state law enforcement officials under appropriate circumstances. However, reimbursement for attendance at such functions should be limited to circumstances where the nature of the ceremonial event in question provides good reason to believe that the employee's attendance advances the authorized functions or programs of the office.

September 23, 1993

DISCLOSURE OF GRAND JURY MATTERS TO THE PRESIDENT AND OTHER OFFICIALS
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The Attorney General may disclose grand jury material covered by Rule 6(e) of the Federal Rules of Criminal Procedure to the President and members of the National Security Council where such disclosure is for the purpose of assisting the Attorney General in her enforcement of federal criminal law. Although under those circumstances such disclosure may be made without prior judicial approval, the names of those receiving the grand jury material must be submitted to the court that impaneled the grand jury in question.

There are also circumstances where the President's constitutional responsibilities may provide justification for the Attorney General to disclose grand jury matters to the President independent of the provisions of Rule 6(e). Such circumstances might arise, for example, where the Attorney General learns through grand jury proceedings of a grave threat of terrorism, implicating the President's responsibility to take care that the laws be faithfully executed.

September 21, 1993

GENERAL SERVICES ADMINISTRATION PRINTING OPERATIONS
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The Joint Committee on Printing lacks the authority to alter the General Services Administration's printing operations, because the only basis for that authority is an invalid legislative veto provision contained in 44 U.S.C. 501. Section 207 of Public Law 102-392 requires executive branch entities (other than the Central Intelligence Agency, the Defense Intelligence Agency, and the National Security Agency) to procure printing related to the publication of government publications by or through the Government Printing Office. 

September 13, 1993

ETHICS ISSUES RELATED TO THE FEDERAL TECHNOLOGY TRANSFER ACT OF 1986 
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A government employee-inventor who assigns his rights in an invention to the United States and accepts the government's payment of amounts tied to the resulting royalties, as provided in the Federal Technology Transfer Act of 1986, 15 U.S.C. §§ 15012534, may continue to work on the invention without violating the statute against taking part in matters in which he has a financial interest, 18 U.S.C. § 208, or the statute forbidding supplementation of federal salaries, 18 U.S.C. § 209. 

Under 18 U.S.C. § 208, a government employee-inventor may not take official action with respect to an agreement for development of his invention entered into by the United States and a company with which the employee has contracted to exploit the invention abroad. 

September 13, 1993

APPLICABILITY OF 18 U.S.C. § 207(c) TO THE BRIEFING AND ARGUING OF CASES IN WHICH THE DEPARTMENT OF JUSTICE REPRESENTS A PARTY 
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Section 207(c) of title 18 forbids a former senior employee of the Department of Justice, for one year after his or her service ends, from signing a brief or making an oral argument in a case where the Department represents one of the parties.

August 27, 1993

CONSTRUCTION OF § 406 OF THE FEDERAL EMPLOYEES PAY COMPARABILITY ACT OF 1990 
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Section 406 of the Federal Employees Pay Comparability Act of 1990 does not extend the authority to make bonus payments to employees at the New York Field Division of the Federal Bureau of Investigation pursuant to section 601 of the Intelligence Authorization Act for fiscal years 1989 and 1990 beyond the expiration date of the demonstration project established by section 601.

August 23, 1993

APPLICABILITY OF THE CIVIL SERVICE PROVISIONS OF TITLE 5 OF THE UNITED STATES CODE TO THE UNITED STATES ENRICHMENT CORPORATION
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The United States Enrichment Corporation is exempt from the civil service provisions of title 5 of the United States Code.

June 22, 1993

AUTHORITY OF THE SECRETARY OF THE TREASURY REGARDING POSTAL SERVICE BOND OFFERING
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If the Secretary of the Treasury, within the fifteen-day period following notice by the United States Postal Service of a proposed bond issue, declares his election to purchase the bonds under 39 U.S.C. § 2006(a), the Postal Service may not sell the bonds on the open market, but must instead negotiate in good faith with the Secretary to reach agreement on the terms and conditions of a sale to the Secretary.

Transfer of the proceeds of any bond offering by the Postal Service to a trustee for the purpose of having the trustee make payments on outstanding Postal Service debt would be a deposit of Postal Service monies within the meaning of 39 U.S.C. § 2003(d) and, accordingly, could only be done with the approval of the Secretary of Treasury.

January 19, 1993

AUTHORITY TO GRANT CONSERVATION EASEMENTS UNDER 40 U.S.C. § 319
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Federal agencies do not have authority to grant conservation easements in federal property under 40 U.S.C. § 319.

January 19, 1993

AUTHORITY OF THE ATTORNEY GENERAL TO MAKE SUCCESSIVE DESIGNATIONS OF INTERIM UNITED STATES MARSHALS
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Under 28 U.S.C. § 562, the Attorney General may make two or more successive designations of a person to serve as interim United States marshal in a judicial district where the marshal's office is vacant.

After the expiration of an initial designation of a United States marshal under 28 U.S.C. § 562, the Attorney General may authorize a person to act as marshal under 28 U.S.C. §§ 509, 510.

January 19, 1993