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Disqualification of Prosecutor Because of Former Representation

In matters that are substantially related to an Assistant United States Attorney’s representation of clients prior to joining the government, the attorney should not participate in any investigation or prosecution that foreseeably involves individuals or entities who, although they arguably had not been the attorney’s “clients,” were contacted by the attorney in the course of his prior representation and indirectly paid the attorney's legal fees, unless the attorney’s participation is essential to the conduct of the Department’s law enforcement operation.

Under the Supremacy Clause of the Constitution, a state court or bar association may regulate the conduct of federal attorneys acting in the scope of their federal authority only to the extent that such regulation is not inconsistent with the exigencies of federal employment.

Issuance of a Preferred Stock Dividend by the Federal Home Loan Mortgage Corporation

The Federal Home Loan Mortgage Corporation is authorized, under 12 U S.C. § 1455(f), to issue a dividend of preferred stock to its shareholders, the Federal Home Loan Banks. The Federal Home Loan Banks are further authorized to distribute that stock as a dividend to their shareholders.

Constitutionality of Line-Item Veto Proposal

A bill that purports to give the President a line-item veto by providing that each item of appropriation in an appropriation bill be enrolled, although not voted on, as a separate bill raises serious constitutional questions under Article I, § 7, cl. 2 of the Constitution.

Seventh Amendment Implications of Providing for the Administrative Adjudication of Claims Under Title VIII of the Civil Rights Act of 1968

Congress may, consistent with the Seventh Amendment and Article III of the Constitution, assign adjudication of certain violations of the Fair Housing Act to an administrative agency without a right to a jury trial.

Congress may do so even though the statute alternatively permits such claims to be brought in federal court, where the Seventh Amendment would guarantee the right to a jury trial.

Such a statutory scheme, under which a defendant’s right to a jury trial is in large part contingent on procedural choices of other parties to the proceedings, does not violate the Due Process Clause.

Inter-Departmental Disclosure of Information Submitted Under the Shipping Act of 1984

The Federal Maritime Commission is not prohibited by § 6(j) of the Shipping Act of 1984 (Act) from disclosing to other Executive Branch departments or agencies information concerning carriage agreements filed pursuant to the Act, although the Act does prohibit disclosure of such information to the public.

Section 6(j) of the Act is patterned after § 7A(h) of the Clayton Act, and the legislative history of the latter provision provides some indication that it might prohibit inter-departmental disclosure of premerger information obtained by the Justice Department under the Hart-Scott-Rodino Act. Nonetheless, in the absence of evidence of legislative intent specifically to prohibit non-public disclosure of Shipping Act information, it should not be inferred that Congress intended to override the general presumption that information obtained by one federal government agency may be freely shared among federal government agencies.

Applicability of Post-Employment Restrictions on Dealing With Government to Former Employees of the Government Printing Office

The Government Printing Office (GPO) is neither a part of the Executive Branch nor an independent agency of the United States for purposes of restrictions on post-employment activities of certain government officers and employees set forth in 18 U.S.C. § 207. Rather, GPO is a unit of the Legislative Branch. Accordingly, officers and employees of GPO are not subject to the post-employment restrictions of 18 U.S.C. § 207.

Special employees of the GPO are also excluded from coverage of the post-employment restrictions, although special employees of the Executive Branch would be covered. Because restrictions of § 207 do not apply to regular officers and employees of the Legislative Branch, it is extremely doubtful that Congress intended them to apply to special employees of that branch.

Scope of Congressional Oversight and Investigative Power With Respect to the Executive Branch

Congressional power to conduct inquiries and to exercise oversight respecting the Executive Branch is broad and well-established. This power is not unlimited, however. Its use must be confined to inquiries concerning the administration of existing laws or the determination of whether new or additional laws are needed.

Congress may not conduct investigative or oversight inquiries for the purpose of managing Executive Branch agencies or for directing the manner in which the Executive Branch interprets and executes the laws.

The Supreme Court’s decisions in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), and INS v. Chadha, 462 U.S. 919 (1983), establish an area of executive authority in the interpretation and implementation of statutes. Congress may not take action, including action in furtherance of its inquiry and oversight powers, that interferes with that executive authority, except through the enactment of legislation in full compliance with constitutional requirements.

Operation of the Twenty-Fifth Amendment Respecting Presidential Succession

The Twenty-Fifth Amendment to the Constitution provides the mechanism for Presidential succession by the Vice President in the event the Office of the President becomes vacant or the President becomes unable to perform the duties of his office.

Upon the death, resignation, or removal of the President, the Vice President immediately and automatically assumes the Office of President and relinquishes the office of Vice President. The taking of the oath of office is not a necessary precondition to assuming the office of the President under these circumstances, but is an obligation which should be promptly discharged.

For purposes of declarations that the President is unable to discharge the powers and duties of his office under § 4 of the Twenty-Fifth Amendment, “the principal officers of the executive departments” are the heads of the departments listed in 5 U.S.C. § 101.

The written declarations of Presidential inability triggering succession procedures under § 4 of the Twenty-Fifth Amendment need not necessarily be personally signed by the Vice President and a majority of the principal officers of the executive departments. The only requirements are that their assent to the declaration be established in a reliable fashion and that they direct that their names to be added to the document.

State Bar Disciplinary Rules as Applied to Federal Government Attorneys

The purported imposition of exclusive disciplinary jurisdiction by state courts upon federal lawyers acting in the scope of their federal authority is subject to the overriding requirements of the Supremacy Clause. Rules promulgated by state courts or bar associations that are inconsistent with the requirements or exigencies of federal service may violate the Supremacy Clause.

Although Department of Justice authorization statutes have implicitly recognized that federal attorneys may be subject to reasonable conditions of state bar membership and to state ethical rules of general application, the imposition of state rules of conduct which penalize or interfere with the performance of authorized federal responsibilities is not recognized or approved by such statutes.

To the extent that a proposed state bar rule asserting “exclusive” disciplinary jurisdiction implies an exclusive right to judge the conduct of federal attorneys by state ethical standards, to impose state sanctions, or to displace any federal forum, it would raise serious issues under the Supremacy Clause.

Federal Agencies Use of Volunteer Services Provided by Individuals and Organizations Under Proposed Legislation

Proposed legislation authorizing federal agencies to accept voluntary services from individuals and non-profit organizations would present potential conflicts with statutory requirements that certain activities must be conducted by government employees authorized to act on behalf of the United States.

The performance of services for federal agencies by volunteers raises especially significant concerns in terms of federal conflict of interest laws. Although voluntary service legislation may exempt volunteers from the coverage of those laws, the use of volunteers to perform government services could raise the very opportunities for self-dealing and abuse of position that the conflict of interest laws are intended to prevent.

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