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Office of Legal Counsel OPINIONS OF THE OFFICE OF LEGAL COUNSEL OF THE UNITED STATES DEPARTMENT OF JUSTICE CONSISTING OF SELECTED MEMORANDUM OPINIONS ADVISING THE PRESIDENT OF THE UNITED STATES, THE ATTORNEY GENERAL AND OTHER EXECUTIVE OFFICERS OF THE FEDERAL GOVERNMENT IN RELATION TO THEIR OFFICIAL DUTIES VOLUME 24 2000 WASHINGTON 2006 Attorney General Janet Reno Assistant Attorney General Office of Legal Counsel Randolph D. Moss Deputy Assistant Attorneys General Office of Legal Counsel Evan H. Caininker Joseph R. Guerra Vicki C. Jackson Daniel L. Koffsky (Acting) Cornelia T.L. Pillard William M. Treanor OFFICE OF LEGAL COUNSEL Attorney-Advisers (2000) Patricia L. Bellia Robin A. Lenhardt Richard A. Bierschbach Herman Marcuse Jonathan G. Cedarbaum Trevor W. Morrison Paul P. Colbom Rosemary Nidiry Robert J. Delahunty Russell K. Robinson Sarah E. Freitas Leslie A. Simon Rosemary A. Hart Jeffrey P. Singdahlsen Clare Huntington George C. Smith Jeffrey P. Kehne Joshua Waldman Daniel L. Koffsky Robert W. Werner Caroline D. Krass Ursula Werner Martin S. Lederman Jay D. Wexler Gia B. Lee iv FOREWORD The Attorney General has directed the Office of Legal Counsel to publish selected opinions on an annual basis for the convenience of the executive, legisla­ tive, and judicial branches of the government; and of the professional bar and the general public. The first twenty-three volumes of opinions published covered the years 1977 through 1999. The present volume covers 2000. Volume 24 includes Office of Legal Counsel opinions that the Department of Justice has determined are appropriate for publication. A substantial number of opinions issued during 2000 are not included. The authority of the Office of Legal Counsel to render legal opinions is derived from the authority of the Attorney General. Under the Judiciary Act of 1789 the Attorney General was authorized to render opinions on questions of law when requested by the President and the heads of executive departments. This authority is now codified at 28 U.S.C. §§ 511-513. Pursuant to 28 U.S.C. § 510 the Attorney General has delegated to the Office of Legal Counsel responsibility for preparing the formal opinions of the Attorney General, rendering opinions to the various federal agencies, assisting the Attorney General in the performance of her function as legal adviser to the President, and rendering opinions to the Attorney General and the heads of the various organizational units of the Department of Justice. 28 C.F.R. §0.25. v Opinion of the Attorney General in Volume 24 Contents Page Enforceability of 18 U.S.C. § 1302 (September 25, 2000) ............................................. 1 Opinions of the Office of Legal Counsel in Volume 24 Contents Page Applicability of 18 U.S.C. § 205(a)(2) to Representation Before Non-Federal Agency (January 3, 2000)............................................................................................ 13 Authority of the Advisory Board for Cuba Broadcasting to Act in the Absence of a Presidentially Designated Chairperson (January 4, 2000) .............................. 24 Legal Effectiveness of a Presidential Directive, as Compared to an Executive Order (January 29, 2000) ........................................................................................................ 29 Starting Date for Calculating the Term of an Interim United States Attorney (March 10, 2000) ......................................................................................................................... 31 Enforcement of INA Employer Sanctions Provisions Against Federal Government Entities (March 15, 2000)............................................................................................ 33 Date of Appointment for Purposes of Calculating the Term of an Interim United States Attorney (March 16, 2000) .............................................................................. 45 Continuation of Federal Prisoner Detention Efforts During United States Marshals Service Appropriation Deficiency (April 5, 2000).................................................. 47 Applicability of the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund and the World Bank (May 11, 2000)............................................. 58 Authority for Military Police to Issue Traffic Citations to Motorists on Bolling Air Force Base (June 5, 2000).................................................................................... 72 EPA Assessment of Penalties Against Federal Agencies for Violation of the Underground Storage Tank Requirements of the Resource Conservation and Recovery Act (June 14, 2000).................................................................................... 84 Applicability of the Post-Employment Restrictions of 18 U.S.C. § 207(c) to Assignees Under the Intergovernmental Personnel Act (June 26, 2000) ............ 94 Division of Powers and Responsibilities Between the Chairperson of the Chemical Safety and Hazard Investigation Board and the Board as a Whole (June 26, 2000) ............................................................................................................................... 102 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 (August 18, 2000) ......................................................................................................... 110 Constitutionality of 18 U.S.C. § 1120 (August 31, 2000)............................................... 156 Application of 18 U.S.C. § 209 to Employee-Inventors Who Receive Outside Royalty Payments (September 7, 2000) .................................................................... 170 Applicability of the Privacy Act to the White House (September 8, 2000) ................ 178 Administration of Coral Reef Resources in the Northwest Hawaiian Islands (September 15, 2000) .................................................................................................. 183 vii Applicability of Government Corporation Control Act to “Gain Sharing Benefit” Agreement (September 18, 2000)............................................................................... 212 A Sitting President’s Amenability to Indictment and Criminal Prosecution (October 16, 2000) ..................................................................................................... 222 Title III Electronic Surveillance Material and the Intelligence Community (October 17, 2000) ......................................................................................................................... 261 Section 235A of the Immigration and Nationality Act (October 23, 2000) ................ 276 Applicability of 18 U.S.C. § 207(d) to Certain Employees in the Treasury Department (November 3, 2000)................................................................................ 284 Definition of “Candidate” Under 18 U.S.C. §207(j)(7) (November 6, 2000)........... 288 State Taxation of Income of Native American Armed Forces Members (November 22, 2000) ......................................................................................................................... 294 Use of Agency Resources to Support Presidential Transition (November 22, 2000) ................................................................................................................................ 309 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 (November 27, 2000) ................................................................................................................................ 311 Authority of the General Services Administration to Provide Assistance to Transition Teams of Two Presidential Candidates (November 28, 2000)........... 322 Authorization for Continuing Hostilities in Kosovo (December 19, 2000).................. 327 Whether the President May Have Access to Grand Jury Material in the Course of Exercising His Authority to Grant Pardons (December 22, 2000)................... 366 viii OPINION OF THE ATTORNEY GENERAL OF THE UNITED STATES Enforceability of 18 U.S.C. § 1302 Application of 18 U.S.C. §1302 to prohibit the mailing of truthful advertising concerning certain lawful gambling operations would violate the First Amendment. Accordingly, the Department of Justice will refrain from enforcing the statute with respect to such mailings. Letter Opinion for the Speaker of the House of Representatives September 25, 2000 This is to inform you of the Department of Justice’s determination that, in light of governing Supreme Court precedent, the Department cannot constitutionally continue to apply 18 U.S.C. § 1302 to prohibit the mailing of truthful information or advertisements concerning certain lawful gambling operations. I. The central opinion that informs the Department’s decision is Greater New Orleans Broadcasting Ass’n v. United States, 522 U.S. 173 (1999). In that case, an association of Louisiana broadcasters and its members challenged the constitu­ tionality of the federal statute prohibiting the broadcasting of information con­ cerning lotteries and other gambling operations. The statute in question, 18 U.S.C. § 1304 (1994), provides in relevant part: Whoever broadcasts by means of any radio or television station for which a license is required by any law of the United States . any advertisement of or information concerning any lottery, gift enterprise,
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