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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 employee’s] 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