U.S. ATTORNEYS

Laws, Rules, and

Policies Governing

Political Activities

United States General Accounting Office

GAO Report to Congressional Requesters

July 2000

GAO/GGD-00-171

United States General Accounting Office General Government Division

Washington, D.C. 20548

Page 1 GAO/GGD-00-171 Political Activities of U.S. Attorneys

B-285535

July 24, 2000

The Honorable Charles E. Grassley

Chairman, Subcommittee on Administrative

Oversight and the Courts

Committee on the Judiciary

United States Senate

The Honorable Christopher S. Bond

Chairman, Committee on Small Business

United States Senate

As you requested, this report discusses various laws, rules, and policies

related to the political activities of U.S. Attorneys. For this report, we have

defined political activities as consisting of the following:

• Hatch Act1

partisan political activities: These activities are directed toward

the success or failure of a political party, candidate for partisan political

office, or partisan political group. Examples of Hatch Act political

activities include campaigning for a candidate and attending a fund-raiser.

• Issue-oriented political activities: These activities involve responding to

congressional, state, or local legislative requests for information,

assistance, or testimony and commenting on matters of congressional,

state, or local legislative responsibility. Examples of issue-oriented

political activities include testifying before a state legislature and making

comments to the public or media regarding a state proposition or

referendum.

Regarding such activities, this report addresses the following questions:

• What laws and Department of Justice (DOJ) rules and policies govern U.S.

Attorneys’ involvement in Hatch Act partisan political activities? What

types of activities are permitted and what types are prohibited? To what

extent have U.S. Attorneys been involved in Hatch Act partisan political

activities?

1

In 1939, Congress passed the Hatch Act (P.L. 76-252), which broadly limited many types of partisan

political activities of federal employees. Several decades later, however, the Hatch Act Reform

Amendments of 1993 (P.L. 103-94) became effective on February 3, 1994, and permitted most federal

employees to actively participate in partisan political campaigns, with certain restrictions. The Hatch

Act, as amended, is codified at 5 U.S.C. sections 7321-7326.
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• What DOJ rules and policies govern U.S. Attorneys’ involvement in issueoriented political activities? To what extent have U.S. Attorneys been

involved in issue-oriented political activities?

• What statutory or other provisions govern U.S. Attorney Offices’

expenditure of federal funds and resources for political activities?

U.S. Attorneys are prohibited from actively participating in Hatch Act

partisan political activities. Generally, many restrictive provisions

currently applicable to U.S. Attorneys are not imposed by the Hatch Act.

Rather, they have been established under the Attorney General’s

discretionary authority and are documented in Attorney General policy

memorandums. These restrictions are similar to those that were imposed

by statute on all federal employees before the Hatch Act Reform

Amendments of 1993. For example, U.S. Attorneys are prohibited from

speaking at political party functions, campaigning for candidates, or

actively participating at fund-raisers. However, with prior DOJ approval,

U.S. Attorneys can passively participate in certain events (e.g., attend a

political fund-raiser). They can also make donations to candidates or

parties of their choice, as long as the donations are not used in a

promotional manner.

DOJ does not maintain or track data on U.S. Attorneys’ participation in

Hatch Act partisan political activities. DOJ officials said that they are not

aware of any violations of Attorney General restrictions related to the

Hatch Act, since at least January 1995. Also, according to an Office of

Special Counsel2 official, since at least January 1995, the office had not

investigated any alleged Hatch Act violations by U.S. Attorneys, their

associates, deputies, or staff.

Regarding issue-oriented political activities, before May 2000, DOJ rules

and policies—as contained in the U.S. Attorneys’ Manual—primarily

addressed U.S. Attorneys’ direct interaction with state and local legislative

bodies. For example, the manual required (and still requires) that U.S.

Attorney Office personnel, including the U.S. Attorney, obtain DOJ

approval before providing testimony or other information not already

publicly available to a state or local legislative body. Before May 2000, DOJ

rules and policies did not specifically address media-related or other

public communications. Consequently, according to DOJ officials, U.S.

Attorneys had considerable independent authority or autonomy and wide

latitude to make public comments on matters of state or local jurisdiction,

2

The Office of Special Counsel is an independent federal agency that provides advisory opinions on

Hatch Act matters and investigates allegations of Hatch Act violations.

Results in Brief
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as long as their position was consistent with that of the administration and

DOJ.

In May 2000, DOJ revised the U.S. Attorneys’ Manual to provide additional

guidance and oversight related to public communications. For example,

one revision requires U.S. Attorney Office personnel, including the U.S.

Attorney, to obtain DOJ’s approval before advocating passage or defeat of

state or local legislation, including state or local referenda or ballot

initiatives. Also, a new section to the manual—incorporating advice that

previously had been given orally—discusses the need to be sensitive to

comity considerations, such as the public perception or appearance of the

proper role and limits of federal prosecutors and the need to give due

deference to the separate constitutional powers and responsibilities of

state and local officials.

Before January 2000, DOJ did not maintain or track data on the issueoriented political activities of U.S. Attorneys at the state or local level. DOJ

began to track U.S. Attorney Office inquiries related to such activities in

January 2000. DOJ’s summaries of inquiries show that from January 19,

2000, to March 22, 2000, U.S. Attorney Offices contacted DOJ nine times

for advice and/or approval regarding activities that involved or could

potentially involve state or local legislative matters. DOJ officials said that

four of the nine inquiries were related to activities that required prior DOJ

approval under the then-current U.S. Attorneys’ Manual (e.g., testimony

before a state legislative body) and would also have required prior DOJ

approval under the May 2000 revisions to the manual. Since other types of

U.S. Attorney Office activities did not require prior DOJ approval at that

time (e.g., advocating passage or defeat of state or local legislation), the

extent and nature of such activities were largely unknown. According to

DOJ officials, beginning in May 2000, all activities that require prior DOJ

approval under the revised U.S. Attorneys’ Manual will be tracked.

Over the years, Congress has imposed various restrictions on the use of

federal funds for certain political activities. The restrictions applicable to

DOJ, in general, have been construed to prohibit (1) grass-roots lobbying

in the form of agency appeals to the public to contact Members of

Congress in support of or in opposition to pending legislation; (2) publicity

of a nature tending to emphasize an agency’s own importance (i.e., selfaggrandizement); and (3) covert propaganda activities, such as editorials

or other materials prepared by an agency and circulated as the ostensible

position of parties outside the agency. Such provisions have not been

interpreted to prohibit an agency’s legitimate informational activities.

Public officials may report on the activities and programs of their agencies,
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may justify those policies to the public, and may rebut attacks on those

policies. Traditionally, policymaking officials have used government

resources to explain and defend their policies.

U.S. Attorneys serve as the nation’s principal litigators under the direction

of the Attorney General. There are 93 U.S. Attorneys stationed throughout

the United States, Puerto Rico, the Virgin Islands, Guam, and the Northern

Mariana Islands. U.S. Attorneys are appointed by, and serve at the

discretion of, the President of the United States, with the advice and

consent of the U.S. Senate. Each U.S. Attorney is the chief federal law

enforcement officer of the United States within his or her particular

jurisdiction. U.S. Attorneys conduct most of the trial work in which the

United States is a party and have the following responsibilities:

• the prosecution of criminal cases brought by the federal government,

• the prosecution and defense of civil cases in which the United States is a

party, and

• the collection of debts owed the federal government that are

administratively uncollectible.

DOJ’s Executive Office for U.S. Attorneys (EOUSA) provides general

executive assistance, administrative support, and other operational

support to U.S. Attorney Offices, and coordinates the relationship of other

DOJ organizational units and other federal agencies with U.S. Attorney

Offices.

In 1939, Congress passed the Hatch Act to limit certain types of political

activities of certain federal employees. The Hatch Act provisions were

premised, in general, on the concept that an impartial workforce free from

political coercion is essential to the fair and effective operation of the

government. More recently, however, the Hatch Act Reform Amendments

of 1993 (effective Feb. 4, 1994) generally permit most federal employees to

take an active part in partisan political management and partisan political

campaigns. While federal employees are still prohibited from seeking

public office in partisan elections, most employees are free to participate,

while off duty and outside of a federal office, in the partisan campaigns of

the candidates of their choice. For example, most federal employees are

allowed to participate in the following types of partisan activities:

• campaigning for or against candidates in partisan elections,

• distributing campaign literature in partisan elections,

• attending and being active at political rallies and meetings,

• signing nominating petitions,

Background
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• assisting in voter registration drives, and

• making campaign speeches for candidates in partisan elections.

Under the Hatch Act Reform Amendments of 1993, certain DOJ employees

(i.e., career members of the Senior Executive Service and employees of

DOJ’s Criminal Division and the Federal Bureau of Investigation) continue

to be subject to greater statutory restrictions, similar to those imposed

before the 1993 amendments.

As the chief federal law enforcement officers of the United States within

their respective jurisdiction, U.S. Attorneys coordinate their activities with

state and local law enforcement officials. U.S. Attorneys have established

Law Enforcement Coordination Committees in an attempt to (1) move past

territorial and jurisdictional concerns of federal, state, and local law

enforcement entities; (2) open the lines of communications; and (3) make

the most efficient use of law enforcement resources. Also, since federal

and state laws and jurisdictions may overlap, coordination and interaction

regarding laws and policies is needed. On occasion, state and local

legislatures and law enforcement officials request that U.S. Attorneys

provide information or comment on law enforcement issues.

Since October 1994, the Attorney General has issued a series of policy

memorandums to subject U.S. Attorneys and other DOJ political

appointees to greater restrictions on partisan political activities, similar to

those imposed by statute before the Hatch Act Reform Amendments of

1993. With prior DOJ approval, U.S. Attorneys can passively attend certain

partisan political events. DOJ does not maintain data on U.S. Attorney

Office requests or DOJ approvals related to U.S. Attorney participation in

such events.

In October 1994, the Attorney General issued a policy memorandum that

outlined the specific restrictions on political participation imposed by the

amended Hatch Act. Also, the Attorney General used the 1994

memorandum to set forth additional restrictions on U.S. Attorneys and

other political appointees, similar to those in effect before the 1993 Reform

Amendments. According to the Attorney General, “The need to ensure the

appearance and reality of the neutral enforcement of the law requires that

our appointees be subject to the additional restrictions . . .”

The 1994 Attorney General memorandum prohibits U.S. Attorneys and

other DOJ political appointees from taking an active part in partisan

political management or partisan political campaigns. More specifically,

Hatch Act Activities

DOJ Policies Related to

Hatch Act Activities
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U.S. Attorneys and other DOJ political appointees may not participate in

the following types of partisan political activities:

• distributing campaign literature;

• canvassing for votes in support of or in opposition to a candidate;

• endorsing or opposing a candidate in a political advertisement, broadcast,

campaign literature, or similar material;

• serving as an officer of a political party;

• addressing a convention, caucus, rally, or similar gathering; or

• actively participating in a fund-raising activity.

U.S. Attorneys and other DOJ political appointees may register and vote as

they choose and may make donations to candidates or parties of their

choice (as long as the donations are not used in a promotional manner).

Since 1994, the Attorney General has issued additional memorandums to

clarify the 1994 memorandum and impose further restrictions on U.S.

Attorneys and other DOJ noncareer appointees.3

Most recently, for

instance, an October 1998 Attorney General memorandum imposed

restrictions regarding appearances at public events—including travel

associated with such events—that might be construed as partisan in

nature. For example, activities that are clearly political, and thus

prohibited, include speaking at party functions and campaigning for

candidates. Active participation in a fund-raiser is also prohibited without

exception.4

With prior DOJ approval, the 1998 memorandum permits U.S. Attorneys to

passively participate in certain events (e.g., attend a political fund-raiser).

Prior approval is also required for activities such as making a speech or

grant announcement in a state shortly before a general election, primary,

or caucus or for attending an event that may involve appearing with a

candidate for partisan office. When prior approval is required, U.S.

Attorneys and other Senate-confirmed political appointees must obtain

such approval from the Deputy Attorney General.

The 1998 Attorney General memorandum supplements and does not

supplant the 1994 memorandum. All of the restrictions set forth in the

Attorney General’s 1994 memorandum are still in effect.

3

Appendix I of this report contains the chronology of Attorney General policy memorandums related

to Hatch Act political activities of U.S. Attorneys.

4

Active participation includes (1) appearing on the program, on the dais, or in the receiving line of a

political event or (2) allowing one’s name to be used in connection with the promotion of the event.
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According to DOJ officials, in 2000, the Attorney General plans to issue

two memorandums on political activities; and these memorandums will

supercede all previous memorandums, including the one from 1994. DOJ

officials told us that (1) one memorandum will be addressed to DOJ career

employees and will list all of the restrictions that apply to their activities

and (2) the other memorandum will be addressed to DOJ political

appointees, including U.S. Attorneys, and will list all of the restrictions

applicable to their political activities. The officials noted that the Attorney

General is expected to continue to allow political appointees to attend

fund-raisers and national political conventions in a passive capacity with

prior approval.

DOJ does not maintain or track data on U.S. Attorney requests or DOJ

approvals related to U.S. Attorneys’ participation in Hatch Act political

activities. According to DOJ officials, there have been very few U.S.

Attorney requests to attend political fund-raisers or national political

conventions. The officials noted, however, that more requests are

expected later in 2000.

DOJ officials said that they are not aware of any violations of Attorney

General restrictions related to the Hatch Act, since at least January 1995.

Also, according to an Office of Special Counsel official, since at least

January 1995, the office had not investigated any alleged Hatch Act

violations by U.S. Attorneys, their associates, deputies, or staff.

U.S. Attorney issue-oriented political activities at the state and local levels

are primarily governed by the U.S. Attorneys’ Manual. In May 2000, DOJ

revised the manual to specifically cover public communications on

criminal justice matters or other policy matters that involve state or local

issues. Historically, DOJ has not maintained or tracked data on issueoriented political activities of U.S. Attorneys. In January 2000, however,

DOJ established a system to begin tracking U.S. Attorney inquiries that

seek prior approval of issue-oriented political activities at the state and

local levels.

The U.S. Attorneys’ Manual contains DOJ rules and policies regarding U.S.

Attorneys’ participation in issue-oriented political activities at the state and

local levels, including certain activities or situations that require prior DOJ

approval. Until revisions were adopted in May 2000, the manual primarily

addressed U.S. Attorneys’ participation in legislative hearings or other

direct interactions with state and local legislative bodies. For example, the

manual required and still requires that state and local legislative requests

to U.S. Attorney Office personnel for any type of “information, assistance

Data on U.S. Attorney

Involvement in Hatch Act

Activities

Issue-Oriented

Political Activities

Until Recently, DOJ

Guidance Did Not Address

Certain Public

Communications
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or testimony” that is not already publicly available “must be cleared” with

DOJ.5

According to DOJ officials, these requests include activities such as

testifying at a state hearing or providing opinions or other information on a

state bill being considered.

Before May 2000, the U.S. Attorneys’ Manual did not specifically address

media-related or other public communications on criminal justice matters

or other policy matters that involved state or local issues. For example, the

manual did not specifically require or encourage U.S. Attorneys to contact

DOJ for advice or approval before commenting on or advocating (to the

public or media) passage or defeat of state or local legislation, including

referenda or ballot initiatives. Consequently, according to EOUSA officials,

U.S. Attorneys had considerable independent authority or autonomy and

wide latitude to publicly comment on state or local issues, as long as their

position was consistent with the position of the administration and DOJ.

A widely publicized example of U.S. Attorneys’ latitude to comment

publicly on state or local issues occurred in early 1999. More specifically,

U.S. Attorneys in one state publicly opposed a state proposition that would

have allowed individuals to carry concealed firearms. In September 1999,

DOJ’s Office of the Inspector General issued a report on the U.S.

Attorneys’ activities. According to the Inspector General’s report, activities

undertaken by a U.S. Attorney (who is no longer in office) included

• drafting and mailing a memorandum/editorial to 102 newspapers

throughout the state summarizing his opposition to the proposition;

• mailing a letter to 709 law enforcement officers summarizing his

opposition to the proposition;

• making 10 to 12 appearances on radio and television shows and about the

same number of public appearances, which included open debates with

pro-gun advocates and interviews about his position;

• attending public meetings with various groups where he spoke about his

position; and

• providing an 800 number to the U.S. Attorney’s Office so law enforcement

officials could ask questions about the impact of the proposition.

5 Public information that can be provided without DOJ approval includes (1) administrative

information, such as office locations, operational hours, address and phone information, the proper

person to contact for different types of matters, and general procedures; (2) documents that are

already of public court records and not under seal or otherwise restricted, such as filed indictments,

briefs, etc; (3) news releases or other materials meant for public distribution; and (4) the time and

place for the next public court hearing, if already announced.

An Example of the Wide

Latitude to Comment

Publicly on State or Local

Issues
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Although the U.S. Attorney sought and obtained DOJ approval to express

his opposition to the proposition (without discussing the specifics of what

was going to be said or how it was going to be communicated), DOJ

officials stated that the policies in effect at that time did not obligate the

U.S. Attorney to ask for permission or solicit DOJ advice before opposing

the proposition or engaging in related activities. An EOUSA official—after

reviewing the published newspaper editorial and the letter mailed to law

enforcement officers—concluded that these communications were “ill

advised and unwise” but were not illegal or in violation of any current

code.

In May 2000, DOJ revised the U.S. Attorneys’ Manual to provide additional

guidance and oversight regarding U.S. Attorney Office personnel, including

the U.S. Attorney, involvement in issue-oriented political activities at the

state and local levels. That is, the recent revisions establish more

comprehensive prior-approval requirements to cover public

communications, such as advocating passage or defeat of state or local

legislation, including referenda or ballot initiatives. The revisions are

contained in sections 1-8.070, 1-8.075, and 1-8.080 of the manual.

Section 1-8.070 (State and Local Legislation) of the U.S. Attorneys’ Manual

was revised to require that U.S. Attorney Office personnel, including the

U.S. Attorney, obtain DOJ approval before advocating passage or defeat of

state or local legislation, including referenda or ballot initiatives. The

revised section reads in part as follows:6

“USAO [United States Attorney Office] personnel should not advocate passage or defeat of

state or local legislation, including state or local referenda or ballot initiatives, without

prior approval to do so by the Department. Each separate written statement or proposed

testimony on pending state or local legislation or referenda must be submitted to the

Department through CTD [Office of the Counsel to the Director, EOUSA] for review and

approval.”

According to DOJ officials, section 1-8.070 requires U.S. Attorney Office

personnel, including U.S. Attorneys, to obtain DOJ approval before

advocating an issue-oriented position concerning state or local legislation

either (1) specifically and directly to a state or local legislative body or (2)

generally in any public communications (e.g., in public meetings or media

contacts).

6

The requirements incorporated into sections 1-8.070 and 1-8.075, regarding state and local legislative

and other matters, do not apply to the U.S. Attorney’s Office for the District of Columbia, which has

unique jurisdictional obligations as the local prosecutor for the District of Columbia.

Recent Revisions to DOJ

Guidance on U.S. Attorney

Participation in IssueOriented Political Activities

Section 1-8.070 (State and Local

Legislation)
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Section 1-8.075 (Comity Considerations) of the U.S. Attorneys’ Manual was

added—based on advice that previously had been given orally—to cover

the public perception or appearance of the proper role and limits of federal

prosecutors and the need to give due deference to the separate

constitutional powers and responsibilities of state and local officials. The

new section reads as follows:

“Whenever you make any public communication on criminal justice or other policy matters

that touch on local or state concerns, whether you are required to seek approval or not

under USAM [U.S. Attorneys’ Manual] 1-8.070, you should be sensitive to comity

considerations. The substance and manner of such communications should be designed to

enhance and not impede Federal, state, local law enforcement relations, be sensitive to the

public appearance of the proper role and limits of Federal prosecutors, and give due

deference to the separate constitutional powers and responsibilities of state and local

officials. The substance of any such communication should be consistent with Department

policy in that area, be distributed in an appropriate fashion, factual in nature and be based

on general law enforcement concerns, views and experience. For example, in testifying to a

state legislative committee on a pending state bill, the impact of the proposal on law

enforcement considerations should be addressed without specifically urging the passage or

defeat of the particular bill that may be under consideration. Please feel free to consult

CTD [Office of the Counsel to the Director, EOUSA] on any questions you may have in this

regard.”

According to DOJ officials, “public communication” in section 1-8.075

covers (1) comments made directly to a state or local legislative body and

(2) comments made to the public (e.g., during public meetings or media

contacts).

Section 1-8.080 (Legislative Requests or Proposals) of the U.S. Attorneys’

Manual was expanded to cover personal proposals or personal views to

the public regarding a legislative proposal or referendum. The expanded

section reads in part as follows:

“If any USAO [U.S. Attorney Office] personnel wish to make a purely personal proposal or

offer personal views on a legislative proposal or referendum to Congress, a state

legislature, local legislature, or the public that could appear to reflect on their official duties

or Department responsibilities, they are encouraged to contact CTD [Office of the Counsel

to the Director, EOUSA] for applicable considerations.”

For U.S. Attorneys, however, it is more difficult to draw a distinction

between “official” and “personal” views, according to representatives of

the Office of the Counsel to the Director, EOUSA. That is, the

representatives said that since U.S. Attorneys are so closely identified with

their official duties, it is difficult for these appointees to speak unofficially

or to make purely personal proposals or offer personal views on issues.

Section 1-8.075 (Comity

Considerations)

Section 1-8.080 (Legislative

Requests or Proposals)
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Before January 2000, DOJ did not maintain or track data on the issueoriented political activities of U.S. Attorneys at the state or local level.

According to EOUSA officials, the number of U.S. Attorney Office requests

for advice/approval to get involved in state or local issues usually increases

during an election year (or primary season) and during the first few

months of each calendar year (since many state legislatures are in session

during that time period). EOUSA officials estimated that they have

historically received an average of two or three U.S. Attorney inquiries per

month during January through March and an average of one or no inquiries

per month during the rest of the year.

In January 2000, EOUSA began to track—by saving and archiving e-mail

messages—U.S. Attorney Office inquiries related to issue-oriented political

activities at the state and local levels. EOUSA summaries of inquiries show

that from January 19, 2000, to March 22, 2000, U.S. Attorney Offices

contacted DOJ nine times for advice and/or approval regarding activities

that involved or could potentially involve state or local legislative matters.7

Each of the nine inquiries was from a different federal judicial district.

According to EOUSA officials, four of the nine inquiries were related to

activities that required prior DOJ approval under the then-current U.S.

Attorneys’ Manual and would also have required prior DOJ approval under

the May 2000 revisions to the manual. For example, in one federal judicial

district, a state senator asked the U.S. Attorney or his representative to

testify before a state legislative committee that was conducting hearings

on a proposed hate crimes bill.

EOUSA officials noted that one of the five inquiries that did not require

prior DOJ approval under the then-current U.S. Attorneys’ Manual would

likely have required prior DOJ approval under the May 2000 revisions to

the manual. More specifically, in one federal judicial district, the head of

the state’s drug enforcement agency asked the U.S. Attorney for his

opinion regarding proposed state legislation that would direct the state

agency to dispense confiscated marijuana for medical purposes. (The

state’s voters previously passed a medical marijuana referendum, which

the U.S. Attorney opposed.) Under the May 2000 revisions to the U.S.

Attorneys’ Manual, prior DOJ approval would have been required if the

U.S. Attorney intended to advocate passage or defeat of the proposed state

legislation.

7

Appendix II of this report presents a summary of each of the nine inquiries, including a description of

the inquiry, the advice given, and the ultimate action taken.

Data on U.S. Attorney

Involvement in IssueOriented Activities
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The nine inquiries recorded by EOUSA may not constitute all issueoriented political activities by U.S. Attorneys during the approximately 2-

month period indicated. Because many types of U.S. Attorney issueoriented political activities at the state or local level generally did not

require prior DOJ approval at that time, the extent and nature of such

activities was largely unknown. For instance, as previously mentioned,

until May 2000, U.S. Attorneys were not required to obtain DOJ approval

before taking a public position on matters of state or local legislative

authority, as long as the position was consistent with that of the

administration and DOJ and did not involve testimony to a state or local

legislature. According to DOJ officials, beginning in May 2000, all activities

that require prior DOJ approval under the revised U.S. Attorneys’ Manual

will be tracked.

DOJ officials said that, in the past 10 years, they were aware of only two

public controversies related to the issue-oriented political activities of U.S.

Attorneys at the state or local level. In one controversial situation, U.S.

Attorneys in one state publicly opposed a state proposition that would

have allowed individuals to carry concealed firearms. In the other

controversial situation, a U.S. Attorney publicly opposed a proposed state

bill to legalize certain types of gambling. DOJ views the relatively few

public controversies as an indication that such activities are not a

widespread problem or concern.

Over the years, Congress has imposed two types of restrictions on the use

of appropriated funds for certain types of political activities—one criminal

and the other civil. First, 18 U.S.C. 1913 makes the use of appropriated

funds to lobby Congress a criminal offense. The second type of lobbying

restriction, usually appearing in regular appropriations acts, is civil in

nature and, in general, prohibits the use of appropriated funds for certain

lobbying activities.

In 1919, Congress enacted what is now 18 U.S.C. 1913, making the use of

appropriated funds to lobby Congress a criminal offense.8

Because 18

U.S.C. 1913 is a criminal statute, DOJ and the courts are responsible for

8 18 U.S.C. 1913 provides, in pertinent part, that: “No part of the money appropriated by any enactment

of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to

pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or

other device, intended or designed to influence in any manner a Member of Congress whether before

or after the introduction of any bill or resolution proposing such legislation or appropriation; but this

shall not prevent officers or employees of the United States or of its departments or agencies from

communicating to Members of Congress on the request of any Member or to Congress, through the

proper official channels, requests for legislation or appropriations which they deem necessary for the

efficient conduct of the public business.”

Applicable Restrictions

on the Use of Federal

Funds for Political

Activities

18 U.S.C. 1913 (The AntiLobbying Act)
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enforcing it. DOJ has construed 18 U.S.C. 1913, as it applies to activities by

executive branch employees, to prohibit the use of appropriated funds for

substantial “grass roots” lobbying campaigns of telegrams, letters, and

other private forms of communication designed to encourage members of

the public to pressure members of Congress to support administration or

department legislative or appropriations proposals.9Section 1913 does not

address activities designed or intended to influence members of state or

local legislative bodies.

Further, regarding the extent to which 18 U.S.C. 1913 imposes constraints

on activities by executive branch employees that relate to legislative

matters, a 1995 memorandum from DOJ’s Office of Legal Counsel to the

Attorney General and Deputy Attorney General10 provided, in part, that:

• “The Department of Justice consistently has construed the Anti-Lobbying

Act as not limiting the lobbying activities personally undertaken by the

President, his aides and assistants within the Executive Office of the

President, the Vice President, cabinet members within their areas of

responsibility, and other Senate-confirmed officials appointed by the

President within their areas of responsibility.”

• “Under the Anti-Lobbying Act, government employees may communicate

with the public through public speeches, appearances and published

writings to support Administration positions . . .”

• A “substantial” grass-roots lobbying campaign is one that involves the

expenditure of $50,000 or more.

The second type of lobbying restriction, usually appearing in annual

appropriations acts, is civil in nature and, in general, prohibits the use of

appropriated funds for certain lobbying activities. These acts have

provided a number of different standards, with varying degrees of

specificity and coverage. On occasion, we have been asked to determine

whether certain agency activity has violated annual appropriations act

lobbying restrictions.

One common form of appropriations act restriction involved in our

decisions prohibits the use of funds for “publicity or propaganda

purposes.” Two provisions applicable to DOJ for fiscal year 2000, for

example, prohibit the use of appropriated funds for publicity or

9

Memorandum for Dick Thornburgh, Attorney General, from William P. Barr, Assistant Attorney

General, Office of Legal Counsel, September 28, 1989.

10 Memorandum for the Attorney General and the Deputy Attorney General from Walter Dellinger,

Assistant Attorney General, Office of Legal Counsel, April 14, 1995.

Appropriations Act

Language
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propaganda purposes not authorized by Congress.11 Neither provision

specifies a forum within the United States (e.g., Congress and/or state or

local legislatures) to which the restrictions apply. Our decisions have not

addressed the applicability of this type of provision to activities directed

toward state or local legislative bodies.

We have construed similar language, as it has appeared in other

appropriations acts, as prohibiting publicity of a nature tending to

emphasize an agency’s own importance—which we have labeled as “selfaggrandizement”—and covert propaganda activities carried out by covered

agencies. We have defined covert propaganda as materials such as

editorials or other articles prepared by an agency or its contractors at the

behest of the agency and circulated as the ostensible position of parties

outside the agency.

Such language does not prohibit an agency’s legitimate informational

activities. Public officials may report on the activities and programs of

their agencies, may justify those policies to the public, and may rebut

attacks on those policies. We have also held that the executive branch has

a duty to inform the public regarding government policies and,

traditionally, policymaking officials have used government resources in

explanation and defense of their policies.

Another version of the appropriations act restrictions is the restriction on

the use of appropriated funds “for publicity or propaganda purposes

designed to support or defeat pending legislation.” For example, section

627 of the Treasury and General Government Appropriations Act, 2000

(P.L. 106-58), as it applies to DOJ, prohibits the use of funds for publicity

or propaganda purposes designed to support or defeat legislation pending

before Congress.12

11 In DOJ’s fiscal year 2000 appropriation (P.L. 106-113), section 601 provides that: “No part of any

appropriation contained in this Act shall be used for publicity or propaganda purposes not authorized

by Congress.” Section 632 of the Treasury and General Government Appropriations Act, 2000 (P.L. 106-

58), provides that: “No part of any appropriation contained in this or any other Act shall be used for

publicity or propaganda purposes within the United States not heretofore authorized by the Congress.”

By virtue of the “this or any other act” language, this provision is expressly applicable to

appropriations contained in all appropriations acts for fiscal year 2000, including those of the

Department of Justice.

12 More specifically, section 627 provides that: “No part of any funds appropriated in this or any other

Act shall be used by an agency of the executive branch, other than for normal and recognized

executive-legislative relationships, for publicity or propaganda purposes, and for the preparation,

distribution or use of any kit, pamphlet, booklet, publication, radio, television or film presentation

designed to support or defeat legislation pending before Congress, except in presentation to the

Congress itself.” By virtue of the “this or any other act” language, this provision is expressly applicable

to appropriations contained in all appropriations acts for fiscal year 2000, including those of the
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We have construed similar “pending legislation” restrictions, as they have

appeared in other appropriations acts, as applying primarily to indirect or

“grass-roots” lobbying and not to direct contact with Members of

Congress. In other words, the statute has been interpreted to prohibit

appeals to members of the public, suggesting that they in turn contact their

elected representatives to indicate support of or opposition to pending

legislation, thereby expressly or implicitly urging the legislators to vote in

a particular manner.

Our decisions have recognized the legitimate interests of an agency in

communicating with the public and with legislators regarding its policies

and activities. We have further recognized that if a given policy or activity

is affected by pending or proposed legislation, any discussion of that

policy or activity by officials will necessarily refer to such legislation,

either explicitly or by implication, and presumably will be either in support

of or in opposition to it. Thus, an interpretation of a “pending legislation”

statute that strictly prohibited expenditures of public funds for

dissemination of views on pending legislation would preclude virtually any

comment by officials on agency or administration policy or activities.

As stated earlier, antilobbying provisions contain a number of different

standards, with varying degrees of specificity and coverage. For example,

while the section 627 language relates to legislation pending before

Congress and does not address activities designed to support or defeat

legislation pending before state or local legislative bodies, appropriations

act language for the Legal Services Corporation prohibits the use of

appropriated funds to assist “attempts to influence the passage or defeat of

any legislation, constitutional amendment, referendum, initiative, or any

similar procedure of the Congress or a State or local legislative body.”13

In general, with respect to issue-oriented political activities, the provisions

applicable to DOJ regarding the use of appropriated funds for certain

lobbying activities have been construed to allow officials to communicate

to the public and with legislators to support and provide information on

Department of Justice. In construing language similar to that found in the above section 627, we have

found that such language makes it clear that the prohibition does not apply to communications directly

to Congress, and that the listing of specific materials and presentations further explains what the

Congress means by publicity or propaganda purposes.

13 The Legal Services Corporation’s fiscal year 2000 appropriation (P.L. 106-58) incorporates language

providing that: “None of the funds appropriated in this Act to the Legal Services Corporation may be

used to provide financial assistance to any person or entity . . . that attempts to influence the passage

or defeat of any legislation, constitutional amendment, referendum, initiative, or any similar procedure

of the Congress or a State or local legislative body.”
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administration positions, with the exception of conduct in the form of

grass-roots lobbying, certain types of publicity (i.e., self-aggrandizement),

and covert propaganda.

According to an EOUSA official, U.S. Attorneys are entitled to use DOJ

time, money, and personnel to comment or take public positions on state

or local issues when representing the department’s position on issues.

To determine what laws, rules, and policies govern U.S. Attorneys'

involvement in Hatch Act partisan political activities and issue-oriented

political activities, we interviewed officials from relevant DOJ component

offices—EOUSA, Office of Intergovernmental Affairs, Office of Legislative

Affairs, Office of Legal Counsel, and Ethics Office—and reviewed policy

memorandums and other documentation. We also interviewed officials

from the Office of Special Counsel—an independent federal agency that

provides advisory opinions on Hatch Act matters and investigates

allegations of Hatch Act violations—and reviewed Hatch Act-related

documentation they provided us. Further, we reviewed Hatch Act

provisions, federal antilobbying laws, and our previous reports and

decisions.

To determine the extent to which U.S. Attorneys had been involved in

Hatch Act partisan political activities and issue-oriented political activities,

we interviewed DOJ officials and relied on case summaries they provided

us. We also asked the Office of Special Counsel for information on Hatch

Act violations by U.S. Attorneys. Further, we interviewed an official from

DOJ’s Office of the Inspector General and reviewed an Inspector General

report on the political activities of two U.S. Attorneys in one state.

As agreed with your offices, we did not directly contact all 93 U.S.

Attorneys. Rather, based on geographic proximity to locations of our

headquarters and field office staff, we interviewed three U.S. Attorneys

(District of Columbia, Northern District of Texas, and Eastern District of

Virginia). During these contacts, we obtained each U.S. Attorney’s

perspectives on relevant rules and policies regarding Hatch Act and issueoriented political activities.

To the extent possible throughout our review, we tried to supplement or

corroborate interview or testimonial information by obtaining and

reviewing policy and/or actual practice documentation, such as manuals,

reports, letters, and memorandums. We performed our work from January

to May 2000 in accordance with generally accepted government auditing

standards.

Scope and

Methodology
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On June 23, 2000, we provided a draft of this report for review and

comment to DOJ. On July 7, 2000, DOJ’s Audit Liaison Office (Justice

Management Division) orally advised us that (1) the draft report had been

reviewed by senior representatives of DOJ’s Executive Office for U.S.

Attorneys and Ethics Office and (2) these reviewers generally concurred

with the substance of the draft report. DOJ provided technical comments

and clarifications, which have been incorporated in this report where

appropriate.

As agreed with your office, unless you announce the contents of this report

earlier, we plan no further distribution of this report until 15 days from the

date of this letter. At that time, we will send copies of this report to

Senator Robert G. Torricelli, Ranking Minority Member of the Senate

Judiciary’s Subcommittee on Administrative Oversight and the Courts;

Senator John F. Kerry, Ranking Minority Member of the Senate Committee

on Small Business; Senator Orrin Hatch, Chairman, and Senator Patrick

Leahy, Ranking Minority Member, Senate Judiciary Committee;

Representative Henry Hyde, Chairman, and Representative John Conyers,

Ranking Minority Member, House Judiciary Committee; the Honorable

Janet Reno, Attorney General; and the Honorable Elaine Kaplan, Special

Counsel. Copies of this report will be made available to others upon

request.

Please contact me on (202) 512-8777 if you or your staff have any questions

about this report. Key contributors to this assignment were Danny R.

Burton, R. Eric Erdman, Geoffrey R. Hamilton, and Michael Kassack.

Laurie E. Ekstrand

Director, Administration

of Justice Issues

Agency Comments
Page 18 GAO/GGD-00-171 Political Activities of U.S. Attorneys

Contents

1 Letter

20

1994 Attorney General Policy Memorandum 20

1996 Attorney General Policy Memorandums 22

1998 Attorney General Policy Memorandum 23

2000 Attorney General Policy Memorandums 24

Appendix I

Chronology of

Attorney GeneralImposed Restrictions

on the Political

Activities of U.S.

Attorneys

25

Four Inquiries Required DOJ Approval 25

Five Inquiries Did Not Require DOJ Approval 26

Appendix II

U.S. Attorney Office

Inquiries to DOJ

Regarding IssueOriented Political

Activities

Abbreviations

DOJ Department of Justice

EOUSA Executive Office for United States Attorneys
Page 19 GAO/GGD-00-171 Political Activities of U.S. Attorneys
Appendix I

Chronology of Attorney General-Imposed

Restrictions on the Political Activities of U.S.

Attorneys

Page 20 GAO/GGD-00-171 Political Activities of U.S. Attorneys

This appendix presents a chronological summary of Attorney Generalimposed restrictions on the political activities of U.S. Attorneys. That is,

the appendix briefly discusses the substance of policy memorandums

issued by the Attorney General in 1994, 1996 (two memorandums), and

1998. All of the restrictions set forth in the Attorney General’s 1994

memorandum remain in effect. The restrictions in the two 1996

memorandums generally were incorporated into the 1998 memorandum,

which also established some additional restrictions. Thus, the 1994 and

the 1998 memorandums currently constitute the Department of Justice’s

(DOJ) basic guidance. According to DOJ officials, in 2000, the Attorney

General plans to issue two memorandums on political activities—one for

DOJ career employees and one for DOJ political appointees—which will

supercede all previous memorandums.

In her October 1994 policy memorandum, regarding restrictions on

political activities by DOJ employees, the Attorney General stated the

following:

“As employees of the Department of Justice, we have been entrusted with the authority to

enforce the laws of the United States, and with the responsibility to do so in a neutral and

impartial manner. For the public to retain its confidence that we are adhering to our

responsibility, we must ensure that politics—both in fact and in appearance—does not

compromise the integrity of our work.”

The 1994 memorandum (1) outlined statutory restrictions on political

activities that are applicable to all DOJ employees and (2) set forth

additional Attorney General-imposed restrictions that are applicable to

U.S. Attorneys and other political appointees.

Although the Hatch Act Reform Amendments of 1993 permit most federal

employees to take an active part in partisan political management and

partisan political campaigns, certain statutory restrictions remain in effect.

The Attorney General’s 1994 policy memorandum outlined statutory

restrictions on political activities that are applicable to all DOJ employees.

More specifically, the memorandum noted that DOJ employees may not do

the following:

• use their official authority or influence to interfere with or affect the result

of an election, 5 U.S.C. 7323 (a) (1);

• solicit, accept, or receive a political contribution, 5 U.S.C. 7323(a) (2),

except for a political contribution to a multicandidate political committee

from a fellow member of a federal labor organization or certain other

employee organizations, as long as the solicited employee is not a

1994 Attorney General

Policy Memorandum

Statutory Restrictions

Applicable to All DOJ

Employees
Appendix I

Chronology of Attorney General-Imposed Restrictions on the Political Activities of U.S.

Attorneys

Page 21 GAO/GGD-00-171 Political Activities of U.S. Attorneys

subordinate and the activity does not violate the provision below related to

“engaging” in political activity;

• solicit, accept, or receive uncompensated volunteer services from an

individual who is a subordinate, 5 C.F.R. 734.303(d);

• allow their official titles to be used in connection with fund-raiser

activities, 5 C.F.R. 734.303(c);

• run for nomination or election to public office in a partisan election, 5

U.S.C. 7323(a) (3);1

• solicit or discourage the political activity of any person who is a

participant in any matter before the department, 5 U.S.C. 7323(a) (4);

• engage in political activity (to include wearing political buttons) while on

duty, while in a government-occupied office or building, while wearing an

official uniform or insignia, or while using a government vehicle, 5 U.S.C.

7324(a); or

• make a political contribution to their employer or employing authority, 18

U.S.C. 603.

The statutory restrictions applicable to all DOJ employees are also

contained in the U.S. Attorneys’ Manual.

Under the Hatch Act Reform Amendments of 1993, certain DOJ employees

(i.e., career members of the Senior Executive Service and employees of

DOJ’s Criminal Division and the Federal Bureau of Investigation) continue

to be subject to greater statutory restrictions, similar to those that were

imposed by statute on all federal employees before the 1993 amendments.

The Attorney General determined, as a policy matter, that DOJ should

continue its practice of imposing these kinds of additional restrictions on

U.S. Attorneys and other political appointees.2According to the Attorney

General, “The need to ensure the appearance and reality of the neutral

enforcement of the law requires that our appointees be subject to

additional restrictions . . .”

The Attorney General’s 1994 policy memorandum set forth the additional

restrictions on U.S. Attorneys and other political appointees. More

specifically, political appointees may not do such things as

1

In certain designated communities, including Washington, D.C., and its suburbs, an employee may run

for office in a local partisan election (but only as an independent candidate) and may receive, but not

solicit, contributions, 5 U.S.C. 7325.

2

Political appointees include all presidential appointees, senate-confirmed presidential appointees,

noncareer members of the Senior Executive Service, and Schedule C appointees.

Additional Restrictions

Applicable to U.S. Attorneys
Appendix I

Chronology of Attorney General-Imposed Restrictions on the Political Activities of U.S.

Attorneys

Page 22 GAO/GGD-00-171 Political Activities of U.S. Attorneys

• distribute fliers printed by a candidate’s campaign committee, a political

party, or a partisan political group;

• serve as an officer of a political party; a member of a national, state, or

local committee of a political party; an officer or member of a committee

of a partisan political group; or be a candidate for any of these positions;

• organize or reorganize a political party organization or partisan political

group;

• serve as a delegate, alternate, or proxy to a political party convention;

• address a convention, caucus, rally, or similar gathering of a political party

or partisan political group in support of or in opposition to a candidate for

partisan political office or political party office, if such address is done in

concert with such a candidate, political party, or partisan political group;

• organize, sell tickets to, promote, or actively participate in a fund-raising

activity of a candidate for partisan political office or of a political party or

partisan political group;

• canvass for votes in support of or in opposition to a candidate for partisan

political office or a candidate for political party office, if such canvassing is

done in concert with such a candidate, political party, or partisan political

group;

• endorse or oppose a candidate for partisan political office or a candidate

for political party office in a political advertisement, broadcast, campaign

literature, or similar material if such endorsement or opposition is done in

concert with such a candidate, political party, or partisan political group;

• initiate or circulate a partisan nominating petition; and

• act as recorder, watcher, challenger, or similar officer at polling places in

consultation or coordination with a political party, partisan political group,

or a candidate for partisan political office.

The Attorney General’s additional restrictions applicable to all political

appointees are also contained in the U.S. Attorneys’ Manual.

In 1996, the Attorney General issued two memorandums to all DOJ

political appointees (i.e., senate-confirmed presidential appointees,

presidential appointees, noncareer members of the Senior Executive

Service, and Schedule C appointees) further restricting their political

activities.

First, in February 1996, the Attorney General issued a memorandum that

required all noncareer employees (including U.S. Attorneys) to seek prior

approval for any public activities—including any travel associated with

such activities—that might be construed as partisan in nature (e.g.,

attending political fund-raisers or national party conventions). According

to the Attorney General, in determining whether an activity is political or

1996 Attorney General

Policy Memorandums

February 1996

Memorandum
Appendix I

Chronology of Attorney General-Imposed Restrictions on the Political Activities of U.S.

Attorneys

Page 23 GAO/GGD-00-171 Political Activities of U.S. Attorneys

official, all relevant factors should be considered, including, but not limited

to, the identity of the sponsor of the event, the group, or organization being

addressed; other participants; and whether the speech being delivered is

partisan and political in nature or DOJ’s position on matters for which DOJ

is responsible. The Attorney General advised that noncareer employees

should be particularly cautious if an event calls for an appearance with an

individual who is actively engaged in seeking elective office. U.S. Attorneys

were to obtain approval from the Deputy Attorney General.

In July 1996, the Attorney General issued a memorandum that prohibited

U.S. Attorneys and other senate-confirmed presidential appointees from

attending partisan political fund-raisers. This policy did not, however,

prohibit those officials from making donations to candidates or parties of

their choice (as long as the donations are not used in a promotional

manner). The Attorney General also noted that absent special

circumstances, approval will not be granted for senate-confirmed

presidential appointees to attend national political conventions.

The restrictions in the two 1996 memorandums generally were

incorporated into the Attorney General’s 1998 memorandum, which also

established some additional restrictions. That is, the October 1998

Attorney General’s memorandum imposed additional restrictions on

noncareer appointees (including U.S. Attorneys), regarding appearances at

public events—including travel associated with such events—that might

be construed as partisan in nature. Activities that are clearly political and

thus prohibited include speaking at party functions or campaigning for

candidates. Active participation in a fund-raiser is also prohibited without

exception.3

U.S. Attorneys and other senate-confirmed presidential appointees must

obtain DOJ approval before attending a political fund-raising event in a

passive capacity. Prior approval is also required for activities such as

making a speech or grant announcement in a state shortly before a general

election, primary, or caucus or before attending an event that may involve

appearing with a candidate for partisan office. U.S. Attorneys and other

senate-confirmed presidential appointees must obtain approval from the

Deputy Attorney General.

3

Active participation includes (1) appearing on the program, on the dais, or in the receiving line of a

political event or (2) the participant allowing his/her name to be used in connection with the promotion

of the event.

July 1996 Memorandum

1998 Attorney General

Policy Memorandum
Appendix I

Chronology of Attorney General-Imposed Restrictions on the Political Activities of U.S.

Attorneys

Page 24 GAO/GGD-00-171 Political Activities of U.S. Attorneys

According to DOJ officials, in 2000, the Attorney General plans to issue

two memorandums on political activities, and these memorandums will

supercede all previous memorandums, including the one from 1994. DOJ

officials told us that (1) one memorandum will be addressed to DOJ career

employees and will list all of the restrictions that apply to their activities

and (2) the other memorandum will be addressed to DOJ political

appointees, including U.S. Attorneys, and will list all of the restrictions

applicable to their political activities. The officials noted that the Attorney

General is expected to continue to allow political appointees to attend

fund-raisers and national political conventions in a passive capacity with

prior approval.

2000 Attorney General

Policy Memorandums
Appendix II

U.S. Attorney Office Inquiries to DOJ

Regarding Issue-Oriented Political Activities

Page 25 GAO/GGD-00-171 Political Activities of U.S. Attorneys

From January 19, 2000, to March 22, 2000, U.S. Attorney Offices contacted

DOJ’s Executive Office for U.S. Attorneys (EOUSA) nine times for advice

and/or approval regarding activities that involved or could potentially

involve state or local legislative matters. This appendix presents EOUSA

summaries of the nine U.S. Attorney Office inquiries.

According to EOUSA officials, four of the nine U.S. Attorney Office

inquiries were related to activities that required prior DOJ approval under

the then-current U.S. Attorneys’ Manual and would also have required

prior DOJ approval under the May 2000 revisions to the manual. The four

inquiries were received from U.S. Attorney Offices in four separate federal

judicial districts. A brief summary of each inquiry is presented in the

following sections.

Description of the inquiry: The U.S. Attorney was asked to endorse gun

control legislation pending in a state legislature.

Advice given: In conformance with DOJ’s usual practice to avoid, on

comity grounds, direct statements of support or opposition to specific

state bills, the U.S. Attorney and DOJ agreed that endorsement of the

pending legislation would be inappropriate.

Ultimate action: No endorsement of the specific bill was made.

Description of the inquiry: The U.S. Attorney Office sought

authorization to testify concerning the federal perspective on proposed

state legislation involving alcohol-related driving offenses. The testimony

purportedly would help to resolve an inconsistency in the proposed state

legislation—that is, to address a situation regarding one location in the

state where persons arrested for alcohol-related driving offenses would

not have points assessed on their drivers’ licenses.

Advice given: If the U.S. Attorney is invited to testify, DOJ will review the

pending legislation and the proposed testimony.

Ultimate action: Pending at the time of our review.

Description of the inquiry: A state senator asked the U.S. Attorney or

his representative to testify before a state legislative committee conducting

hearings on a proposed hate crimes bill. The prospective testimony of the

U.S. Attorney—consistent with the position the office took at a community

hate crimes symposium in 1999—supports the idea of strong hate crimes

legislation, without committing to a specific bill.

Four Inquiries

Required DOJ

Approval

Inquiry No. 1

Inquiry No. 2

Inquiry No. 3
Appendix II

U.S. Attorney Office Inquiries to DOJ Regarding Issue-Oriented Political Activities

Page 26 GAO/GGD-00-171 Political Activities of U.S. Attorneys

Advice given: It is appropriate to testify on the hate crimes problem

generally and the need for aggressive enforcement and effective

legislation, without commenting on specific state legislation.

Ultimate action: Testimony was offered.

Description of the inquiry: The U.S. Attorney was asked to testify before

the Criminal Justice Committee of the state legislature concerning federal

enforcement in the area of illegal enticement of children via the Internet.

The U.S. Attorney would not be asked to comment on potential state

legislation in this area and would discuss only federal enforcement efforts

and factual matters pertaining to the federal criminal justice system.

Advice given: DOJ officials concurred that the U.S. Attorney’s appearance

before the state legislature to discuss this topic strictly from the federal

enforcement perspective would be appropriate.

Ultimate action: The U.S. Attorney testified.

According to EOUSA officials, five of the nine U.S. Attorney Office

inquiries were related to activities that did not require prior DOJ approval

under the then-current U.S. Attorneys’ Manual. The five inquiries were

received from U.S. Attorney Offices in five separate federal judicial

districts. Also, these five districts did not include any of the four districts

discussed above.

EOUSA officials said that although the five inquiries in this category

related to activities that involved or could potentially involve state

legislative matters, at the time the inquiries were made, the activities did

not involve providing testimony or other assistance directly to a state

legislative body. Therefore, EOUSA officials concluded that the activities

did not require prior DOJ approval under the then-current U.S. Attorneys’

Manual. The officials noted that one of the five inquiries (see inquiry no. 4

below) related to activities that would likely have required prior DOJ

approval under the May 2000 revisions to the manual. A brief summary of

each inquiry is presented in the following sections.

Description of the inquiry: The American Civil Liberties Union and the

Urban League asked the U.S. Attorney to attend a meeting on racial

profiling for the specific purpose of “demanding” that the state’s governor

sign a state bill that would require law enforcement officers to collect data

regarding the race and ethnicity of persons stopped and searched.

Inquiry No. 4

Five Inquiries Did Not

Require DOJ Approval

Inquiry No. 1
Appendix II

U.S. Attorney Office Inquiries to DOJ Regarding Issue-Oriented Political Activities

Page 27 GAO/GGD-00-171 Political Activities of U.S. Attorneys

Advice given: Maintaining the appropriate appearance of neutrality during

an apparently partisan session on state legislation would be extremely

difficult, and it was therefore recommended that the U.S. Attorney decline

the invitation to attend.

Ultimate action: The U.S. Attorney declined to attend.

Description of the inquiry: The state’s governor sought to appoint an

Assistant U.S. Attorney as one of seven members of the state’s Fair

Employment and Housing Commission, which meets four times annually

to render decisions on employment and fair housing complaints. The

commission also issues or reviews proposed state regulations to

implement antidiscrimination statutes, and reviews proposed

antidiscrimination legislation.

Advice given: Participation by an Assistant U.S. Attorney on a state board

that renders decisions, rather than acting strictly as an advisory body, is

inadvisable because it raises a comity question. The Assistant U.S.

Attorney would be acting as a state functionary while holding a federal

office. There is also the question of the propriety of rendering independent

decisions in the civil rights area where federal and state enforcement roles

are distinct.

Ultimate action: The offer was declined.

Description of the inquiry: A city mayor asked the U.S. Attorney to play

a role in a gun violence reduction initiative. That is, the mayor asked the

U.S. Attorney to participate with a state prosecutor in a gathering of local

mayors to formulate a zero-tolerance firearms enforcement policy.

Advice given: It was advised that participation by the U.S. Attorney be

limited to law enforcement issues and that any appearance of involvement

in local political matters be strictly avoided.

Ultimate action: Participation was approved.

Description of the inquiry: The head of the state’s drug enforcement

agency asked the U.S. Attorney for his opinion regarding proposed state

legislation that would direct the state agency to disperse confiscated

marijuana for medical purposes. The state’s voters previously passed a

medical marijuana referendum, which the U.S. Attorney opposed. Under

current federal law, it would be a crime for the agency to disperse

marijuana.

Inquiry No. 2

Inquiry No. 3

Inquiry No. 4
Appendix II

U.S. Attorney Office Inquiries to DOJ Regarding Issue-Oriented Political Activities

Page 28 GAO/GGD-00-171 Political Activities of U.S. Attorneys

Advice given: It is proper for a U.S. Attorney to relay DOJ’s position on an

issue if asked by a state official. In this case, the position is that marijuana

distribution is still illegal under federal law, notwithstanding what occurs

in a specific state.

Ultimate action: The U.S. Attorney has relayed DOJ’s position to the

state’s drug enforcement agency.

Description of the inquiry: The state legislature asked the U.S. Attorney

to serve in his official capacity on a task force or commission being

created to study proposals to reduce mandatory minimum sentences for

drug users and to exempt some convicted criminals from having to

disclose their offenses to potential employers. The commission’s study

could result in recommendations for changes in state laws.

Advice given: The U.S. Attorney was advised not to accept the

appointment; however, the U.S. Attorney was also advised that he could

answer questions based on law enforcement experience, as long as he did

not address specific state legislation.

Ultimate action: The U.S. Attorney made himself available for

consultation.

Inquiry No. 5
Page 29 GAO/GGD-00-171 Political Activities of U.S. Attorneys
Page 30 GAO/GGD-00-171 Political Activities of U.S. Attorneys
Page 31 GAO/GGD-00-171 Political Activities of U.S. Attorneys
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