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Testimonial Immunity Before Congress of the Assistant to the President and Senior Counselor to the President

The Assistant to the President and Senior Counselor to the President is absolutely immune from compelled congressional testimony in her capacity as a senior adviser to the President.

Congressional Committee’s Request for the President’s Tax Returns Under 26 U.S.C. § 6103(f)

The provisions in 26 U.S.C. § 6103 protecting confidentiality of tax returns prohibited the Department of the Treasury from complying with a request by the Chairman of the House Ways and Means Committee for the President’s tax returns. The text of section 6103(f), the statutory exception under which the request was made, does not require the Committee to state any purpose for its request. But Congress could not constitutionally confer upon the Committee the right to compel the Executive Branch to disclose confidential information without a legitimate legislative purpose. Under the facts and circumstances, the Secretary of the Treasury reasonably and correctly concluded that the Committee’s asserted interest in reviewing the Internal Revenue Service’s audits of presidential returns was pretextual and that its true aim was to make the President’s tax returns public, which is not a legitimate legislative purpose.

Because section 6103(a) prohibited the disclosure of the tax returns sought in the Chairman’s request, as well as in the corresponding subpoenas, the Department of the Treasury’s refusal to provide the information did not violate either 26 U.S.C. § 7214(a)(3) or 2 U.S.C. § 192.

Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees

Congress may not constitutionally prohibit agency counsel from accompanying agency employees called to testify about matters that potentially involve information protected by executive privilege. Such a prohibition would impair the President’s constitutional authority to control the disclosure of privileged information and to supervise the Executive Branch’s communications with Congress.

Congressional subpoenas that purport to require agency employees to appear without agency counsel are legally invalid and are not subject to civil or criminal enforcement.

Testimonial Immunity Before Congress of the Former Counsel to the President

The immunity of the President’s immediate advisers from compelled congressional testimony on matters related to their official responsibilities has long been recognized and arises from the fundamental workings of the separation of powers. This immunity applies to former senior advisers such as the former White House Counsel. Accordingly, the former Counsel is not legally required to appear and testify about matters related to his official duties as Counsel to the President.

The President does not waive an adviser’s immunity from compelled congressional testimony by authorizing disclosure of any particular information. The disclosure’s impact on executive privilege does not ultimately bear on any underlying immunity from compelled testimony.

Because Congress may not constitutionally compel the former Counsel to testify about his official duties, he may not be civilly or criminally penalized for following a presidential directive not to appear. The same rationale applies equally to an exercise of inherent contempt powers against a senior aide who has complied with a presidential direction that he not provide testimony to a congressional committee.

Whether the Food and Drug Administration Has Jurisdiction over Articles Intended for Use in Lawful Executions

Articles intended for use in executions carried out by a State or the federal government cannot be regulated as "drugs" or "devices" under the Federal Food, Drug, and Cosmetic Act. The Food and Drug Administration therefore lacks jurisdiction to regulate articles intended for that use.

Designating an Acting Attorney General

The President’s designation of a senior Department of Justice official to serve as Acting Attorney General was expressly authorized by the Vacancies Reform Act. That act is available to the President even though the Department’s organic statute prescribes an alternative succession mechanism for the office of Attorney General.

The President’s designation of an official who does not hold a Senate-confirmed office to serve, on a temporary basis, as Acting Attorney General was consistent with the Appointments Clause. The designation did not transform the official’s position into a principal office requiring Senate confirmation.

Reconsidering Whether the Wire Act Applies to Non-Sports Gambling

This Office concluded in 2011 that the prohibitions of the Wire Act in 18 U.S.C. § 1084(a) are limited to sports gambling. Having been asked to reconsider, we now conclude that the statutory prohibitions are not uniformly limited to gambling on sporting events or contests. Only the second prohibition of the first clause of section 1084(a), which criminalizes transmitting “information assisting in the placing of bets or wagers on any sporting event or contest,” is so limited. The other prohibitions apply to non-sports-related betting or wagering that satisfy the other elements of section 1084(a).

The 2006 enactment of the Unlawful Internet Gambling Enforcement Act did not alter the scope of section 1084(a).

The Scope of State Criminal Jurisdiction over Offenses Occurring on the Yakama Indian Reservation

In partially retroceding the criminal jurisdiction that it had obtained under Public Law 280, the State of Washington retained criminal jurisdiction over an offense on the Yakama Indian Reservation when the defendant or the victim is a non-Indian, as well as when both are non-Indians.

April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities

The President could lawfully direct airstrikes on facilities associated with Syria’s chemical-weapons capability because he had reasonably determined that the use of force would be in the national interest and that the anticipated hostilities would not rise to the level of a war in the constitutional sense.

Applicability of the Miscellaneous Receipts Act to an Arbitral Award of Legal Costs

An arbitral award of legal costs does not qualify as a refund for purposes of the “refunds to appropriations” exception to the Miscellaneous Receipts Act. The Millennium Challenge Corporation therefore must deposit the award in the general fund of the Treasury.

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