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Assertion of Executive Privilege Concerning the Dismissal and Replacement of U.S. Attorneys

Executive privilege may properly be asserted over the documents and testimony concerning the dismissal and replacement of United States Attorneys that have been subpoenaed by congressional committees.

Application of the Emoluments Clause to a Member of the Federal Bureau of Investigation Director’s Advisory Board

A member of the Federal Bureau of Investigation Director’s Advisory Board does not hold an “Office of Profit or Trust” under the Emoluments Clause of the Constitution.

Constitutionality of D.C. Voting Rights Act of 2007

S. 1257, a bill to grant the District of Columbia representation in the House of Representatives as well as to provide an additional House seat for Utah, violates the Constitution’s provisions governing the composition and election of the United States Congress.

When a Prior Conviction Qualifies as a “Misdemeanor Crime of Domestic Violence”

A “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9) is limited to those offenses of which the use or attempted use of physical force or the threatened use of a deadly weapon is an element—that is, a factual predicate specified by law and required to support a conviction.

Where the legal definition of the crime at issue contains a disjunctive element (which requires proof of only one of multiple specified factual predicates), only one subpart of which requires the use or attempted use of physical force or the threatened use of a deadly weapon, application of the prohibition in section 922(g)(9) will turn on whether the factfinder found that the subpart meeting the “misdemeanor crime of domestic violence” definition had been proved (or whether the defendant pleaded guilty to that subpart). The answer to that question may be gleaned from the record of conviction or the supporting record of proceedings in the court of conviction. Police reports cannot answer that question.

The above interpretations also govern background checks by the Federal Bureau of Investigation for firearms transfers under the National Instant Background Check System, but additional materials, including police reports, may be relied upon by the NICS for certain limited purposes.

Officers of the United States Within the Meaning of the Appointments Clause

A position to which is delegated by legal authority a portion of the sovereign powers of the federal Government and that is “continuing” is a federal office subject to the Constitution's Appointments Clause. A person who would hold such a position must be properly made an “Officer[] of the United States” by being appointed pursuant to the procedures specified in the Appointments Clause.

Use of Appropriated Funds to Provide Light Refreshments to Non-Federal Participants at EPA Conferences

Light refreshments are “subsistence expenses” to which the prohibition of 31 U.S.C. § 1345 applies, and various statutory provisions that authorize the Environmental Protection Agency to hold meetings, conduct training and provide grants do not satisfy the “specifically provided by law” exception to the prohibition.

A violation of section 1345 does not, by its own force, also violate the Anti-Deficiency Act.

Status of Public Company Accounting Oversight Board Under 18 U.S.C. § 207(c)

A former senior employee of the Securities and Exchange Commission communicating with the Commission on behalf of the Public Company Accounting Oversight Board during the year after his service as a senior employee at the Commission ends would not be communicating on behalf of the United States and therefore 18 U.S.C. § 207(c) would apply to bar such a communication.

Legality of Alternative Organ Donation Practices Under 42 U.S.C. § 274e

Two alternative kidney donation practices, in which a living donor who is incompatible with his intended recipient donates a kidney to a stranger in exchange for the intended recipient's receiving a kidney from another donor or increased priority on a waiting list, do not violate the prohibition on transfers of organs for “valuable consideration” in 42 U.S.C. § 274e.

Presidential Signing Statements

This testimony discusses the purpose and history of presidential signing statements.

Days of Service by Special Government Employees

The longstanding interpretation of the Executive Branch that service by a special government employee during any part of a day counts as a full day under 18 U.S.C. §§ 203 and 205, which impose greater conflict of interest restrictions after a special government employee works 60 days, is reaffirmed.

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