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 12 1988 W ASHINGTON 1996 Attorneys General Edwin Meese III Richard L. Thornburgh Assistant Attorneys General Office of Legal Counsel Charles J. Cooper Douglas W. Kmiec Deputy Assistant Attorneys General Office of Legal Counsel Samuel A. Alito, Jr. Michael A. Carvin Allan Gerson Douglas W. Kmiec John O. McGinnis Carol A. Williams OFFICE OF LEGAL COUNSEL Attorney-Advisers (1988) Alden F. Abbott Bruce D. Lindsay Bradford R. Clark Margaret Colgate Love Paul P. Colbom Nelson Lund Douglas R. Cox John F. Manning Mark P. Edelman Herman Marcuse Susan B. Fine Marc L. Miller Edward Fuhr John C. Nagle John P. Giraudo Michael B. Rappaport Rosemary A. Hart Daniel E. Troy William R. Levin Carol A. Williams Foreword The Attorney General has directed the Office of Legal Counsel to publish se­ lected 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 eleven volumes of opinions published covered the years 1977 through 1987; the present volume covers 1988. The opinions included in Volume 12 include some that have previously been released to the public, addi­ tional opinions as to which the addressee has agreed to publication, and opinions to Department of Justice officials that the Office of Legal Counsel has determined may be released. A substantial number of Office of Legal Counsel opinions is­ sued during 1988 are not included. The authority of the Office of Legal Counsel to render legal opinions is de­ rived 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 author­ ity is now codified at 28 U.S.C. §§ 511-513. Pursuant to 28 U.S.C. § 510 the At­ torney 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 function as legal adviser to the President, and rendering opinions to the Attorney General and the heads of the various organizational units or the Department of Justice. 28 C.F.R. § 0.25. Opinion of the Attorney General in Volume 12 Contents Page Deportation Proceedings of Joseph Patrick Thomas Doherty (June 9, 1988)........................................................................................................... 1 • Opinions of the Office of Legal Counsel in Volume 12 Applicability of the Federal Advisory Committee Act to Presidential Task Force on Market Mechanisms (January 5, 1988) ...................... 11 Applicability of 18 U.S.C. §§ 212 and 213 to FDIC Examiners’ Obtain­ ing of Credit Cards from State-Chartered FDIC-Insured Nonmember Banks (January 12, 1988)........................................................................ 14 Representation of the United States Sentencing Commission in Litiga­ tion (January 15, 1988)............................................................................ 18 Legal Constraints on Lobbying Efforts in Support of Contra Aid and Rat­ ification of the INF Treaty (February 1,1988)..................................... 30 Constitutionality of Amended Version of the Indian Land Consolidation Act (March 4, 1988)................................................................................ 41 Statute Limiting the President’s Authority to Supervise the Director of the Centers for Disease Control in the Distribution of an AIDS Pam­ phlet (March 11, 1988)............................................................................ 47 Constitutionality of Seizing the Passports of Individuals Found to be Im­ porting Controlled Substances Into the United States (March 15, 1988)........................................................................................................... 59 Authority to Advance Funds to Cuban Detainees To Purchase Commis­ sary Items (March 30, 1988) ................................................................. 64 Authority of Foreign Law Enforcement Agents to Carry Weapons in the United States (April 12, 1 988)............................................................... 67 Disclosure of Advisory Committee Deliberative Materials (April 29, 1988)........................................................................................................... 73 Applicability of 18 U.S.C. § 207(a) to the Union Station Development Corporation (May 10, 1988).................................................................... 84 Applicability of the Davis-Bacon Act to the Veterans Administration’s Lease of Medical Facilities (June 6, 1988)............................................ 89 Interpretation of District of Columbia Good Time Credits Act of 1986 (June 8, 1988)........................................................................................... 97 Department of Justice Funding of Representation of Victims in Con­ nection with a West German Prosecution (June 8, 1 9 8 8 ).................. 105 Litigating Authority of the Interstate Commerce Commission (June 10, 1988)........................................................................................................... 110 Applicability of Interest and Penalty Provisions of the Criminal Fine Enforcement Act to Fines Imposed as a Condition of Probation (June 15,1988).................................................................................................... 117 vii The Status of the Smithsonian Institution Under the Federal Property and Administrative Services Act (June 30, 1988) ............................... 122 The President’s Veto Power (July 8, 1 9 8 8 ).............................................. 128 Investigative Authority of the General Accounting Office (August 16, 1988)............................................................................................................ 171 GAO Access to Trade Secret Information (September 13, 1988)......... 181 Detail of Law Enforcement Agents to Congressional Committees (Sep­ tember 13, 1988)....................................................................................... 184 Department of Housing and Urban Development Restrictions on Grants to Religious Organizations That Provide Secular Social Services (Sep­ tember 14, 1988)....................................................................................... 190 Whether a Federal Prisoner Worker is an “Employee” Within the Mean­ ing of Certain Federal Statutes (September 19, 1 9 8 8 )........................ 202 Application of Section 504 of the Rehabilitation Act To HIV-Infected Individuals (September 27, 1988) ......................................................... 209 Reimbursement of the Internal Revenue Service for Investigative Ser­ vices Provided to the Independent Counsel (September 30, 1988) .. 233 Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea (October 4, 1 9 8 8 )..................................................... 238 Applicability of 18 U.S.C. § 207(c) to President-Elect’s Transition Team (November 18, 1 9 8 8 ).............................................................................. 264 Authority of the Customs Service to Seize or Forfeit Property Pursuant to 21 U.S.C. § 881 (November 23, 1988).............................................. 267 Applicability of Appointment Provisions of the Anti-Drug Abuse Act of 1988 to Incumbent Officeholders (December 12, 1988) .................... 286 Maintaining Essential Services in the District of Columbia in the Event Appropriations Cease (December 15, 1988) ....................................... 290 viii OPINION OF THE ATTORNEY GENERAL OF THE UNITED STATES Deportation Proceedings of Joseph Patrick Thomas Doherty The Attorney General reversed the decision of the Board of Immigration Appeals that there was insuf­ ficient evidence that the deportation of the respondent to the Republic of Ireland would be prejudi­ cial to the interests of the United States, and remanded the case to the BIA for further proceedings. June 9,1988 In re: Joseph Patrick Thomas Doherty (A26-185-231) I n D e p o r t a t io n P r o c e e d in g s Under 8 U.S.C. § 1253(a), an alien is to be deported to a country designated by the alien if that country is willing to accept him “unless the Attorney General, in his discretion, concludes that deportation to such country would be prejudicial to the interests of the United States.” In this case, the Board of Immigration Ap­ peals (“BIA”) ruled that there was insufficient evidence that the deportation of respondent to the Republic of Ireland (“Ireland”) was prejudicial to the interests of the United States and accordingly rejected the request of the Immigration and Naturalization Service (“INS”) that respondent be deported to the United King­ dom of Great Britain and Northern Ireland (“the United Kingdom”). Pursuant to 8 C.F.R. § 3.1 (h)( 1 )(iii), I granted the INS’s request to review the decision of the BIA. For the reasons set forth below, I disapprove the BIA’s decision and con­ clude that it would be prejudicial to the interests of the United States for respon­ dent to be deported to Ireland and