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 EDITOR Nathan A. Forrester VOLUME 32 2008 WASHINGTON 2014 Attorney General Michael B. Mukasey Deputy Assistant Attorneys General Office of Legal Counsel Steven G. Bradbury (Principal) John A. Eisenberg Steven A. Engel John P. Elwood Daniel L. Koffsky Elizabeth Petrela Papez iii OFFICE OF LEGAL COUNSEL Attorney-Advisers (2008) Amit Agarwal Jeremy C. Marwell Trisha B. Anderson Andrew S. Oldham Paul P. Colborn Michael S. Paisner Nathan A. Forrester Michael H. Park Jordan A. Goldstein John R. Phillips Rosemary A. Hart Leslie A. Simon Allon Kedem Bradley T. Smith Caroline D. Krass George C. Smith Steven P. Lehotsky Marah Carter Stith Thomas S. Lue 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, Legislative, and Judicial Branches of the government, and of the professional bar and the general public. The first thirty-one volumes of opinions published covered the years 1977 through 2007. The present volume covers 2008. Volume 32 includes Office of Legal Counsel opinions that the Department of Justice has determined are appropriate for publication. The authority of the Office of Legal Counsel to render legal opinions is derived from the authority of the Attorney General. The Judiciary Act of 1789 authorized the Attorney General 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 his or 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. As always, the Office expresses its gratitude for the efforts of its paralegal and administrative staff—Elizabeth Farris, Melissa Kassier, Richard Hughes, Joanna Ranelli, Dyone Mitchell, and Lawan Robinson—in shepherding the opinions of the Office from memorandum form to online publication to final production in these bound volumes. v Opinions of the Attorney General in Volume 32 Contents Page Assertion of Executive Privilege Over Communications Regarding EPA’s Ozone Air Quality Standards and California’s Greenhouse Gas Waiver Request (June 19, 2008) ........................................................................... 1 Assertion of Executive Privilege Concerning the Special Counsel’s Interviews of the Vice President and Senior White House Staff (July 15, 2008) ........................................................................................ 7 Constitutionality of the OLC Reporting Act of 2008 (November 14, 2008) .. 14 Opinions of the Office of Legal Counsel in Volume 32 Contents Page Constitutionality of Federal Government Efforts in Contracting With Women-Owned Businesses (January 16, 2008) ...................................... 23 Constitutionality of the Direct Reporting Requirement in Section 802(e)(1) of the Implementing Recommendations of the 9/11 Commission Act of 2007 (January 29, 2008) .......................................................................... 27 Payment of Back Wages to Alien Physicians Hired Under the H-1B Visa Program (February 11, 2008) .................................................................. 47 Office of Government Ethics Jurisdiction Over the Smithsonian Institution (February 29, 2008) ................................................................................. 56 Whether the Department of Justice May Prosecute White House Officials for Contempt of Congress (February 29, 2008) ...................................... 65 Promotions of Judge Advocates General Under Section 543 of the National Defense Authorization Act for Fiscal Year 2008 (April 14, 2008) ......... 70 Validity of the Food, Conservation, and Energy Act of 2008 (May 23, 2008) ........................................................................................ 77 Authority of the Environmental Protection Agency to Hold Employees Liable for Negligent Loss, Damage, or Destruction of Government Personal Property (May 28, 2008) .......................................................... 79 Admissibility in Federal Court of Electronic Copies of Personnel Records (May 30, 2008) ........................................................................................ 87 Scope of the Definition of “Variola Virus” Under the Intelligence Reform and Terrorism Prevention Act of 2004 (July 24, 2008) ........................... 103 vii Applicability of 18 U.S.C. § 207(f) to Public Relations Activities Undertaken for a Foreign Corporation Controlled by a Foreign Government (August 13, 2008) ............................................................... 115 Enforceability of Certain Agreements Between the Department of the Treasury and Government-Sponsored Enterprises (September 26, 2008) .............................................................................. 127 Scope of Exemption Under Federal Lottery Statutes for Lotteries Conducted by a State Acting Under the Authority of State Law (October 16, 2008) .................................................................................. 129 Requests for Information Under the Electronic Communications Privacy Act (November 5, 2008) ......................................................................... 145 Meaning of “Temporary” Work Under 8 U.S.C. § 1101(a)(15)(H)(ii)(b) (December 18, 2008) ............................................................................... 159 viii OPINIONS OF THE ATTORNEY GENERAL OF THE UNITED STATES Assertion of Executive Privilege Over Communications Regarding EPA’s Ozone Air Quality Standards and California’s Greenhouse Gas Waiver Request The President may lawfully assert executive privilege in response to congressional subpoenas seeking communications within the Executive Office of the President or between the Environmental Protec- tion Agency and the EOP concerning EPA’s promulgation of a regulation revising national ambient air quality standards for ozone or EPA’s decision to deny a petition by California for a waiver from federal preemption to enable it to regulate greenhouse gas emissions from motor vehicles. June 19, 2008 THE PRESIDENT THE WHITE HOUSE Dear Mr. President: You have asked for my legal advice as to whether you may assert executive privilege with respect to documents subpoenaed by the Committee on Oversight and Government Reform (the “Committee”) of the House of Representatives. The Committee has issued three subpoenas, two directed to the Administrator of the Environmental Protection Agency (“EPA”) and one to the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget (“OIRA”), a component of the Executive Office of the President (“EOP”). The subpoena to OIRA and one of the subpoenas to EPA seek documents related to EPA’s promulgation of a regulation revising national ambient air quality standards (“NAAQS”) for ozone on March 12, 2008. The other subpoena directed to EPA seeks documents reflecting communications between EPA and the EOP concerning the agency’s decision to deny a petition by California for a waiver from federal preemption to enable it to regulate greenhouse gas emissions from motor vehicles. The Office of Legal Counsel of the Department of Justice has reviewed the documents that EPA and OIRA have identified as responsive to the subpoenas but have not provided to the Committee. The great majority of these documents are internal to EOP and were generated in the course of advising and assisting you with respect to your consideration of EPA’s proposed ozone regulation. The great majority of the EOP documents are internal OIRA deliberative work product in support of your participation in the ozone decision. The remaining OIRA docu- ments consist of deliberative communications between OIRA and others within the EOP, including White House staff. The EPA documents include unredacted copies of notices for meetings between EPA officials and senior White House staff to discuss the ozone regulation and California waiver decisions; redacted copies of the notices that are being produced to the Committee indicate the time and place of the meetings, but the identities of the meeting participants are redacted. The only other EPA document concerning the ozone regulation is a set of talking points for 1 Opinions of the Office of Legal Counsel in Volume 32 the EPA Administrator to use in a meeting with you. The remaining EPA documents consist of talking points for EPA officials to use in presentations to senior White House staff at meetings at which California’s waiver petition was discussed, communications within EPA and with EOP staff concerning the preparation of talking points for you to use in a conversation with the Governor of California, communications with EOP staff regarding how to respond to a letter to you from the Governor, and a response to a request from senior White House staff for a report on EPA’s goals and