|Date of Issuance||Title||Headnotes|
|05/20/2019||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.
|05/03/2019||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.
|11/14/2018||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.
|11/02/2018||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).
|07/27/2018||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.
|05/31/2018||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.
|03/06/2018||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.
|02/07/2018||The Department of Defense’s Authority to Conduct Background Investigations for Its Personnel||
Section 925 of the National Defense Authorization Act for Fiscal Year 2018 authorizes the Department of Defense to conduct the background investigations for its personnel currently performed by the National Background Investigations Bureau of the Office of Personnel Management, including investigations to determine whether those personnel may be granted security clearances giving them access to classified information or whether they are eligible to hold sensitive positions.
This statutory reallocation of investigative authority from one part of the Executive Branch to another does not raise constitutional concerns. It does not infringe upon the President’s constitutional role in protecting national security information.
|01/26/2018||Committee Resolutions Under 40 U.S.C. § 3307(a) and the Availability of Enacted Appropriations||
Under 40 U.SC. § 3307(a), committee approval resolutions do not establish binding limits on how the General Services Administration may expend appropriated funds. If Congress appropriates funds for a project that has not received committee approval, section 3307(a) does not constrain what the Executive Branch may do with the funds.
Committee resolutions adopted under section 3307(a) have no effect on the availability of appropriated funds for purposes of the Anti-Deficiency Act.
|11/25/2017||Designating an Acting Director of the Bureau of Consumer Financial Protection||
The statute providing that the Deputy Director of the Bureau of Consumer Financial Protection shall “serve as acting Director in the absence or unavailability of the Director” authorizes the Deputy Director to serve as the Acting Director when the position of Director is vacant.
Both the Federal Vacancies Reform Act of 1998 and the statute specific to the office of Director are available to fill a vacancy in the office of Director on an acting basis; the office-specific statute does not displace the President’s authority to designate an acting officer under 5 U.S.C. § 3345(a)(2) or (3).