Medical and Public Health Law Site
Opinions of the Office of Legal Counsent - DOJ
U.S. Department of Justice
Office of Legal Counsel
2000 Memoranda & Opinions
Overview of Document
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
USE OF AGENCY RESOURCES TO SUPPORT PRESIDENTIAL TRANSITION
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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 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 employees] services" in the government.
September 5, 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
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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
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
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
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