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Title Headnotes
Whether the President May Have Access to Grand Jury Material in the Course of Exercising His Authority to Grant Pardons

The President, in the exercise of his pardon authonty and responsibilities under Article II, Section 2, Clause 1 of the Constitution, may request that the Pardon Attorney include grand jury information in any recommendation the Attorney may make in connection with a pardon application if the President determines that his need for such information in considering that application outweighs the confidentiality interests embodied in Rule 6(e) of the Federal Rules of Criminal Procedure.

The prohibition in Rule 6(e) cannot constitutionally be applied to prevent the President from obtaining grand jury information already in the possession of the executive branch when the President determines that, for purposes of making a clemency decision, his need for that information outweighs the confidentiality interests embodied in Rule 6(e).

Authorization for Continuing Hostilities in Kosovo

Pub. L. No. 106-31, the emergency supplemental appropriation for military operations in Kosovo, constituted authorization for continuing hostilities after the expiration of sixty days under section 5(b) of the War Powers Resolution.

Authority of the General Services Administration to Provide Assistance to Transition Teams of Two Presidential Candidates

The Presidential Transition Act of 1963, with certain limited exceptions, authorizes the Administrator of the Genera1 Services Administration to provide transition assistance only for those services and facilities necessary to assist the transition of the “President-elect” and the “Vice-President-elect,” as those terms are defined in the Act. Since there cannot be more than one “President-elect” and one “Vice-President-elect” under the Act, the Act does not authorize the Administrator to provide transition assistance to the transition teams of more than one presidential candidate.

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

For purposes of settling attorney’s fees claims in a case arising under both section 10 of the Administrative Procedure Act and the citizen-suit provisions of the Endangered Species Act, federal litigators, in allocating hours and costs between the APA-Equal Access to Justice Act and ESA claims, should subordinate EAJA section 2412(d) to ESA section 11(g)(4). Under this approach, hours and costs necessary to both counts should be assigned to the ESA claim for attorney’s fees purposes, leaving only the hours and costs necessary only to the APA claim to be paid under EAJA.

State Taxation of Income of Native American Armed Forces Members

The Soldiers’ and Sailors’ Civil Relief Act prohibits States from taxing the military compensation of Native American armed forces members who are residents or domicilianes of tribal reservations from which they are absent by reason of their military service.

Use of Agency Resources to Support Presidential Transition

We adhere to the conclusion in our December 14, 1992 Memorandum that, under the Presidential Transition Act of 1963, an executive agency or department may provide office space, secretarial services, and other support services to members of the transition team from agency appropriations without reimbursement from the transition appropriation when the provision of such space and support by the agency, rather than by the transition team itself, would minimize disruption to the agency’s operations caused by the transfer of the leadership of the agency.

Our conclusion in the 1992 Memorandum is not affected by the October 12, 2000 amendment to the Transition Act. Direct support services and office space for those workshops and orientations that the amendment authorizes should be provided by GSA out of the appropriation for the transition, unless their provision by a particular agency would minimize disruption of the agency’s mission or operations.

Definition of “Candidate” Under 18 U.S.C. § 207(j)(7)

For purposes of the “on behalf of a candidate” exemption contained in section 207(j)(7) of title 18, a successful candidate should be viewed as seeking office until the candidate assumes the office to which he or she has been elected.

Applicability of 18 U.S.C. § 207(d) to Certain Employees in the Treasury Department

The post-employment restrictions of 18 U.S.C. § 207(d), which cover officials paid “at” the rate for level I of the Executive Schedule, do not apply to officials paid at a higher rate. Those officials are instead subject to the restrictions of 18 U.S.C. § 207(c).

Section 235A of the Immigration and Nationality Act

Section 235A of the Immigration and Nationality Act requires the Attorney General to establish and maintain certain preinspection stations, provided the foreign countries concerned have consented to the establishment of such stations on their territory and provided that certain other preconditions have been satisfied.

Section 235A does not oblige the Attorney General or any other executive branch official to enter into diplomatic negotiations with foreign countries in order to obtain their consent to the establishment of preinspection stations on their territory, and it does not require that preinspection stations be established before the preconditions have been satisfied. Accordingly, section 235A does not unconstitutionally infringe on the President’s authonty to conduct diplomatic relations.

Title III Electronic Surveillance Material and the Intelligence Community

Under Title III of the Omnibus Cnme Control and Safe Streets Act, law enforcement officials may share with the intelligence community information obtained through surveillance authorized by courts pursuant to Title III where it is done to obtain assistance in preventing, investigating, or prosecuting a crime.

Law enforcement may also share with the intelligence community information obtained through surveillance authorized by courts pursuant to Title III where the information is of overriding importance to national security or foreign relations and disclosure is necessary for the President to discharge his constitutional responsibilities over these matters.


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