b'Application of the Violence Against Women Act When\nthe Offender and Victim Are the Same Sex\nThe criminal provisions of the Violence Against Women Act apply to otherwise-covered\nconduct when the offender and victim are the same sex.\nApril 27, 2010\n\nMEMORANDUM OPINION FOR THE\nACTING DEPUTY ATTORNEY GENERAL\nYou have asked us whether the criminal provisions of the Violence\nAgainst Women Act (\xe2\x80\x9cVAWA\xe2\x80\x9d) apply to otherwise-covered conduct\nwhen the offender and victim are of the same sex. VAWA includes three\ncriminal provisions: 18 U.S.C. \xc2\xa7 2261 (2006), addressing interstate domestic violence; 18 U.S.C. \xc2\xa7 2261A (2006), addressing interstate stalking;\nand 18 U.S.C. \xc2\xa7 2262 (2006), addressing the interstate violation of a\nprotection order. Consistent with the views we received, we conclude that\neach of these provisions applies when the offender and the victim are the\nsame sex. 1\nI.\nThe first of VAWA\xe2\x80\x99s three criminal provisions, section 2261, addresses\ncertain specified types of interstate domestic violence. Subsection (a)(1)\nWe received views from the Criminal and Civil Rights Divisions, the Office on Violence Against Women, and the Executive Office for United States Attorneys. See E-mail\nfor Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from\nMythili Raman, Principal Deputy Assistant Attorney General, Criminal Division (Feb. 23,\n2010) (attaching Memorandum for Lanny A. Breuer, Assistant Attorney General, Criminal Division, from P. Kevin Carwile, Chief, Gang Unit, and Michael S. Warbel, Trial\nAttorney, Criminal Division, Re: Criminal Prosecution of Same-Sex Partners Under the\nViolence Against Women Act (Feb. 19, 2010)); E-mail for David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, from Samuel Bagenstos, Principal Deputy Assistant Attorney General, Civil Rights Division (Apr. 8, 2010); Memorandum for\nJeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from\nJennifer E. Kaplan, Attorney Advisor, Office on Violence Against Women, Re: Application of the Violence Against Women Act to Same-Sex Dating Violence (Mar. 24, 2010);\nE-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel,\nfrom Margaret S. Groban, Assistant United States Attorney, Office of Legal Programs and\nPolicy, Executive Office for United States Attorneys (Feb. 10, 2010).\n1\n\n147\n\n\x0c34 Op. O.L.C. 147 (2010)\n\nmakes it a federal crime to travel in interstate or foreign commerce, to\nenter or leave Indian country, or to travel within the special maritime or\nterritorial jurisdiction of the United States \xe2\x80\x9cwith the intent to kill, injure,\nharass, or intimidate a spouse, intimate partner, or dating partner\xe2\x80\x9d if, in\nthe course of or as a result of such travel, the offender \xe2\x80\x9ccommits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 2261(a)(1) (emphases added). Subsection (a)(2) makes it a federal crime to \xe2\x80\x9ccause[] a spouse, intimate\npartner, or dating partner to travel in interstate or foreign commerce or to\nenter or leave Indian country by force, coercion, duress, or fraud\xe2\x80\x9d and,\nduring, as a result of, or to facilitate such conduct or travel, to \xe2\x80\x9ccommit[]\nor attempt[] to commit a crime of violence against that spouse, intimate\npartner, or dating partner.\xe2\x80\x9d Id. \xc2\xa7 2261(a)(2) (emphases added). Section\n2261 was part of VAWA as originally enacted in 1994, but at that time it\ncovered only victims who were a \xe2\x80\x9cspouse or intimate partner\xe2\x80\x9d of the\noffender. The 2006 VAWA amendments added the term \xe2\x80\x9cdating partner\xe2\x80\x9d\nto both paragraphs described above. Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162,\n\xc2\xa7 116(a), 119 Stat. 2960, 2988 (2006).\nSecond, section 2261A addresses interstate stalking. Subsection (1)\nmakes it a federal crime to travel in interstate or foreign commerce, to\nenter or leave Indian country, or to travel within the special maritime or\nterritorial jurisdiction of the United States \xe2\x80\x9cwith the intent to kill, injure,\nharass, or place under surveillance with intent to kill, injure, harass, or\nintimidate another person\xe2\x80\x9d if, in the course of or as a result of such travel,\nthe offender \xe2\x80\x9cplaces that person in reasonable fear of the death of, or\nserious bodily injury to, or causes substantial emotional distress to that\nperson, a member of the immediate family (as defined in section 115) 2 of\nthat person, or the spouse or intimate partner of that person.\xe2\x80\x9d 18 U.S.C.\n\xc2\xa7 2261A(1) (emphases added). Subsection (2) makes it a federal crime to,\nwith certain specified intent, \xe2\x80\x9cuse[] the mail, any interactive computer\nservice, or any facility of interstate or foreign commerce to engage in\na course of conduct that causes substantial emotional distress to\xe2\x80\x9d \xe2\x80\x9ca\n2 Section 115 defines \xe2\x80\x9cimmediate family member\xe2\x80\x9d as an individual\xe2\x80\x99s \xe2\x80\x9cspouse, parent,\nbrother or sister, child or person to whom he stands in loco parentis\xe2\x80\x9d or \xe2\x80\x9cany other person\nliving in his household and related to him by blood or marriage.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 115 (2006).\n\n148\n\n\x0cApplication of Violence Against Women Act When Offender and Victim Are Same Sex\n\nperson in another State or tribal jurisdiction or within the special maritime\nand territorial jurisdiction of the United States,\xe2\x80\x9d or to place \xe2\x80\x9cthat person in\nreasonable fear of the death of, or serious bodily injury to,\xe2\x80\x9d \xe2\x80\x9cthat person,\xe2\x80\x9d\n\xe2\x80\x9ca member of the immediate family (as defined in section 115) of that\nperson,\xe2\x80\x9d or \xe2\x80\x9ca spouse or intimate partner of that person.\xe2\x80\x9d Id. \xc2\xa7 2261A(2)\n(emphases added). When first enacted in the 1996 amendments to VAWA, section 2261A covered only the target of the stalking and that person\xe2\x80\x99s immediate family members. National Defense Authorization Act for\nFiscal Year 1997, Pub. L. No. 104-201, \xc2\xa7 1069, 110 Stat. 2422, 2655\n(1996). The 2000 VAWA amendments added subsection (2) and the\nphrase \xe2\x80\x9cspouse or intimate partner\xe2\x80\x9d after \xe2\x80\x9cimmediate family\xe2\x80\x9d in subsection (1). Victims of Trafficking and Violence Protection Act of 2000, Pub.\nL. No. 106-386, \xc2\xa7 1107(b)(1), 114 Stat. 1464, 1498 (2000).\nFinally, section 2262 addresses the interstate violation of a protection\norder. 3 Subsection (a)(1) makes it a federal crime to travel in interstate or\nforeign commerce, to enter or leave Indian country, or to travel within the\nspecial maritime and territorial jurisdiction of the United States \xe2\x80\x9cwith the\nintent to engage in conduct that violates the portion of a protection order\nthat prohibits or provides protection against violence, threats, or harassment against, contact or communication with, or physical proximity to,\nanother person, or that would violate such a portion of a protection order\nin the jurisdiction in which the order was issued,\xe2\x80\x9d and to subsequently\nengage in such conduct. 18 U.S.C. \xc2\xa7 2262(a)(1) (emphasis added). Subsection (a)(2) makes it a federal crime to \xe2\x80\x9ccause[] another person to travel\nin interstate or foreign commerce or to enter or leave Indian country by\nforce, coercion, duress, or fraud\xe2\x80\x9d if, in the course of, as a result of, or to\nfacilitate such conduct or travel, the offender engages in conduct described in subsection (a)(1). Id. \xc2\xa7 2262(a)(2) (emphasis added). Section\n2262 was part of VAWA as originally enacted in 1994, but subsection\n(a)(2) applied at that time only to \xe2\x80\x9ca spouse or intimate partner\xe2\x80\x9d of the\noffender. The 2000 amendments to VAWA substituted \xe2\x80\x9canother person\xe2\x80\x9d\nfor \xe2\x80\x9ca spouse or intimate partner.\xe2\x80\x9d Pub. L. No. 106-386, \xc2\xa7 1107(c), 114\nStat. at 1498\xe2\x80\x9399. These amendments also changed the wording of subsection (a)(1) to refer to \xe2\x80\x9canother person\xe2\x80\x9d rather than to \xe2\x80\x9cthe person or persons for whom the protection order was issued.\xe2\x80\x9d Id.\n3\n\nFor purposes of VAWA, \xe2\x80\x9cprotection order\xe2\x80\x9d is defined in 18 U.S.C. \xc2\xa7 2266(5) (2006).\n\n149\n\n\x0c34 Op. O.L.C. 147 (2010)\n\nII.\nWe begin with an analysis of similar language that is used in sections\n2261A and 2262, which cover interstate stalking and the interstate violation of a protection order, to define the class of victims to which they\napply. Each provision applies to covered acts committed by an offender\nagainst \xe2\x80\x9canother person,\xe2\x80\x9d although 2261A also applies in some circumstances to acts that affect a \xe2\x80\x9cspouse or intimate partner of that person,\xe2\x80\x9d a\npoint that we discuss further below.\nWith respect to the meaning of \xe2\x80\x9canother person,\xe2\x80\x9d the analysis is\nstraightforward. The plain meaning of the term encompasses individuals\nof both sexes, regardless of their relationship to the offender, and nothing\nin the text or the structure or purpose of VAWA indicates that a departure\nfrom plain meaning would be appropriate. It is true that the statute is\nentitled the Violence Against Women Act, but other provisions of the Act\nmake clear it applies to conduct perpetrated against male, as well as\nfemale, victims, see, e.g., 42 U.S.C. \xc2\xa7 13925(b)(8) (2006) (providing,\nwith respect to VAWA\xe2\x80\x99s grant conditions, that \xe2\x80\x9c[n]othing in this subchapter shall be construed to prohibit male victims of domestic violence,\ndating violence, sexual assault, and stalking from receiving benefits and\nservices under this subchapter\xe2\x80\x9d), and courts have so held, see, e.g., United\nStates v. Bell, 303 F.3d 1187 (9th Cir. 2002) (male victims of interstate\nstalking); see also United States v. Page, 167 F.3d 325, 326 (6th Cir.\n1999) (Moore, J., concurring) (\xe2\x80\x9cWhile Congress was particularly concerned with those crimes that \xe2\x80\x98disproportionately burden women,\xe2\x80\x99 S. Rep.\nNo. 103-138, at 37 [(1993)], [VAWA\xe2\x80\x99s] criminal provisions are genderneutral, and enforcement has been gender-neutral as well.\xe2\x80\x9d). Courts have\nalso held that sections 2261A and 2262 apply when the offender and\nvictim are the same sex, see, e.g., Bell, 303 F.3d at 1189 (man convicted\nof stalking several men believed to have been government agents); United\nStates v. Wills, 346 F.3d 476 (4th Cir. 2003) (man convicted of stalking\nman who was a government witness against him); United States v. Nedd,\n262 F.3d 85 (1st Cir. 2001) (man convicted of violating protection order\ncovering an unrequited love interest and her father), and regardless of\nwhether the offender and victim are involved in a romantic relationship,\nsee, e.g., United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009) (animal\nrights activists convicted of stalking individuals associated with a compa150\n\n\x0cApplication of Violence Against Women Act When Offender and Victim Are Same Sex\n\nny that conducted animal testing). We thus conclude that, in referring to\n\xe2\x80\x9canother person,\xe2\x80\x9d sections 2261A and 2262 apply to otherwise-covered\nconduct when the offender and victim are the same sex, and irrespective\nof the relationship between the offender and victim.\nSection 2261A also applies when an offender places the target of the\nstalking in \xe2\x80\x9creasonable fear of the death of, or serious bodily injury to,\xe2\x80\x9d\nthe target\xe2\x80\x99s \xe2\x80\x9cspouse or intimate partner\xe2\x80\x9d or \xe2\x80\x9ccauses substantial emotional\ndistress\xe2\x80\x9d to the target\xe2\x80\x99s \xe2\x80\x9cspouse or intimate partner.\xe2\x80\x9d For purposes of\nVAWA, the term \xe2\x80\x9cspouse\xe2\x80\x9d cannot be read to cover an individual who is\nthe same sex as the target of the stalking, even if they are married under\nstate law, because the Defense of Marriage Act (\xe2\x80\x9cDOMA\xe2\x80\x9d) provides that\n\xe2\x80\x9c[i]n determining the meaning of any Act of Congress, or of any ruling,\nregulation, or interpretation of the various administrative bureaus and\nagencies of the United States, . . . the word \xe2\x80\x98spouse\xe2\x80\x99 refers only to a\nperson of the opposite sex who is a husband or a wife.\xe2\x80\x9d 1 U.S.C. \xc2\xa7 7\n(2006). 4\nDOMA does not, however, address the additional term \xe2\x80\x9cintimate partner,\xe2\x80\x9d which, for purposes of section 2261A, is defined in 18 U.S.C.\n\xc2\xa7 2266(7) (2006). That section provides that the composite phrase \xe2\x80\x9cspouse\nor intimate partner\xe2\x80\x9d means \xe2\x80\x9ca spouse or former spouse of the target of the\nstalking, a person who shares a child in common with the target of the\nstalking, and a person who cohabits or has cohabited as a spouse with the\ntarget of the stalking\xe2\x80\x9d; \xe2\x80\x9ca person who is or has been in a social relationship of a romantic or intimate nature with the target of the stalking, as\ndetermined by the length of the relationship, the type of relationship, and\nthe frequency of interaction between the persons involved in the relationship\xe2\x80\x9d; or \xe2\x80\x9cany other person similarly situated to a spouse who is protected\n4 Section 2261A also applies when an offender places the target of the stalking in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional\ndistress to a member of the target\xe2\x80\x99s \xe2\x80\x9cimmediate family,\xe2\x80\x9d which, as defined in 18 U.S.C.\n\xc2\xa7 115, includes a spouse. See supra note 2. This section thus applies to the target\xe2\x80\x99s spouse\nthrough two separate references\xe2\x80\x94\xe2\x80\x9cimmediate family\xe2\x80\x9d and \xe2\x80\x9cspouse or intimate partner\xe2\x80\x9d\xe2\x80\x94\na redundancy that is explained, at least in part, by the fact that section 115\xe2\x80\x99s definition is\nnot specific to VAWA and that the term \xe2\x80\x9cspouse or intimate partner,\xe2\x80\x9d added to section\n2261A as an amendment after its original enactment, occurs throughout VAWA and is\ndefined as a composite phrase. See 18 U.S.C. \xc2\xa7 2266(7) (2006). DOMA\xe2\x80\x99s limitation on\nthe term \xe2\x80\x9cspouse\xe2\x80\x9d applies to section 115 as well as to the phrase \xe2\x80\x9cspouse or intimate\npartner.\xe2\x80\x9d\n\n151\n\n\x0c34 Op. O.L.C. 147 (2010)\n\nby the domestic or family violence laws of the State or tribal jurisdiction\nin which the injury occurred or where the victim resides.\xe2\x80\x9d 5 Two parts of\nthis composite definition\xe2\x80\x94namely, \xe2\x80\x9ca person who shares a child in common with the target of the stalking\xe2\x80\x9d and \xe2\x80\x9ca person who is or has been in a\nsocial relationship of a romantic or intimate nature with the target of the\nstalking\xe2\x80\x9d\xe2\x80\x94refer to a \xe2\x80\x9cperson\xe2\x80\x9d without any kind of spousal relationship to\nthe target of the stalking and thus provide content to what it means to be\nan \xe2\x80\x9cintimate partner.\xe2\x80\x9d The unqualified use of the term \xe2\x80\x9cperson\xe2\x80\x9d is significant, as its plain meaning, for the reasons set forth above, is best read to\nbe encompassing. And there is nothing else in section 2266(7) that provides a basis for reading the term \xe2\x80\x9cperson\xe2\x80\x9d more narrowly in this context\nto exclude an individual who is the same sex as the target of the stalking.\nTwo individuals who are the same sex may, for example, \xe2\x80\x9cshar[e] a child\nin common,\xe2\x80\x9d see, e.g., Adar v. Smith, 597 F.3d 697 (5th Cir. 2010);\nFinstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), or be involved in a\n\xe2\x80\x9csocial relationship of a romantic or intimate nature\xe2\x80\x9d for purposes of that\nsubsection, see, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Baker v.\nState, 744 A.2d 864 (Vt. 1999). And although the definition of \xe2\x80\x9cintimate\npartner\xe2\x80\x9d refers to the \xe2\x80\x9ctype of relationship\xe2\x80\x9d as one criterion for determining whether a relationship is a \xe2\x80\x9csocial relationship of a romantic or intimate nature,\xe2\x80\x9d there is no indication Congress intended by that vague\nphrase to require such relationships to be heterosexual. Indeed, the phrase\nis most naturally read to refer to indicia that the relationship is or was\n\xe2\x80\x9cromantic or intimate,\xe2\x80\x9d as the statute prescribes. 6 Thus, based on the\nThe 2006 VAWA amendments added the reference to individuals in social relationships of a romantic or intimate nature. Pub. L. No. 109-162, \xc2\xa7 106(d), 119 Stat. at 2982.\n6 Although \xe2\x80\x9ca word may be known by the company it keeps,\xe2\x80\x9d Graham County Soil &\nWater Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 287 (2010)\n(internal quotation marks omitted), the fact that VAWA joins the term \xe2\x80\x9cspouse\xe2\x80\x9d with the\nterm \xe2\x80\x9cintimate partner\xe2\x80\x9d in one combined definition is not a ground for concluding that\nDOMA\xe2\x80\x99s restriction on the former term should be applied to the latter term so as to\npreclude an \xe2\x80\x9cintimate partner\xe2\x80\x9d from being the same sex as the offender. The noscitur a\nsociis canon applies when a potentially broad term appears as part of \xe2\x80\x9csome sort of\ngathering with a common feature to extrapolate\xe2\x80\x9d in order to give consistent meaning to\nthe statutory terms that are so gathered. S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547\nU.S. 370, 379\xe2\x80\x9380 (2006); see also Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226\n(2008); Gutierrez v. Ada, 528 U.S. 250, 254\xe2\x80\x9358 (2000) (applying the canon to limit the\nphrase \xe2\x80\x9cany election\xe2\x80\x9d to gubernatorial elections when the phrase was surrounded by six\nspecific references to gubernatorial elections). Simply put, the terms \xe2\x80\x9cspouse\xe2\x80\x9d and\n5\n\n152\n\n\x0cApplication of Violence Against Women Act When Offender and Victim Are Same Sex\n\nstatutory definition, a person who is the same sex as the target of the\nstalking may be an \xe2\x80\x9cintimate partner\xe2\x80\x9d of the target for purposes of section\n2261A.\nThe last of VAWA\xe2\x80\x99s criminal provisions, section 2261, is limited in\nreach to those victims who are the \xe2\x80\x9cspouse, intimate partner, or dating\npartner\xe2\x80\x9d of the offender. Despite this difference from sections 2261A and\n2262, we conclude that section 2261, too, applies when the victim and the\noffender are the same sex. The analysis that leads us to this conclusion is\nessentially the same as that set forth above.\nThe term \xe2\x80\x9cspouse\xe2\x80\x9d may not be read to include an individual who is the\nsame sex as the offender because of DOMA, but 18 U.S.C. \xc2\xa7 2266(7)\ndefines the phrase \xe2\x80\x9cspouse or intimate partner\xe2\x80\x9d 7 for purposes of section\n2261 in materially identical terms to the definition that governs section\n2261A. An \xe2\x80\x9cintimate partner\xe2\x80\x9d of the offender thus includes \xe2\x80\x9ca person who\nshares a child in common with the abuser\xe2\x80\x9d and \xe2\x80\x9ca person who is or has\nbeen in a social relationship of a romantic or intimate nature with the\nabuser, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in\nthe relationship.\xe2\x80\x9d Because, as we have noted, persons who are the same\nsex may share a child in common or be in a social relationship of a romantic or intimate nature, the term \xe2\x80\x9cintimate partner\xe2\x80\x9d in section 2261\nincludes a victim who is the same sex as the abuser.\nWith respect to section 2261, therefore, that leaves only the term \xe2\x80\x9cdating partner\xe2\x80\x9d to be examined. The term is defined in 18 U.S.C. \xc2\xa7 2266(10)\nsimilarly to one portion of section 2266(7)\xe2\x80\x99s definition of \xe2\x80\x9cspouse or\nintimate partner.\xe2\x80\x9d Section 2266(10) provides that a \xe2\x80\x9cdating partner\xe2\x80\x9d is \xe2\x80\x9ca\n\xe2\x80\x9cintimate partner,\xe2\x80\x9d despite their appearance together in the definitional section of VAWA,\ndo not constitute the requisite sort of \xe2\x80\x9cgathering with a common feature\xe2\x80\x9d to which the\nnoscitur canon could apply. See, e.g., Graham County, 559 U.S. at 288\xe2\x80\x9389 (declining to\napply the canon to the adjectives \xe2\x80\x9ccongressional, administrative, or Government Accounting Office\xe2\x80\x9d in order to limit the middle term to federal, rather than all governmental,\nadministrative reports).\n7 Section 2261, as originally enacted, included the exact phrase \xe2\x80\x9cspouse or intimate\npartner,\xe2\x80\x9d but the 2006 VAWA amendments replaced that phrase with \xe2\x80\x9cspouse, intimate\npartner, or dating partner.\xe2\x80\x9d Despite the fact that the terms \xe2\x80\x9cspouse\xe2\x80\x9d and \xe2\x80\x9cintimate partner\xe2\x80\x9d\nare now separated by a comma rather than by the word \xe2\x80\x9cor\xe2\x80\x9d in section 2261, it is clear\nthat the definition in section 2266(7) (\xe2\x80\x9cspouse or intimate partner\xe2\x80\x9d) continues to govern\nthe meaning of the two terms.\n\n153\n\n\x0c34 Op. O.L.C. 147 (2010)\n\nperson who is or has been in a social relationship of a romantic or intimate nature with the abuser,\xe2\x80\x9d and it specifies that \xe2\x80\x9c[t]he existence of such\na relationship is based on a consideration of\xe2\x80\x9d \xe2\x80\x9cthe length of the relationship,\xe2\x80\x9d \xe2\x80\x9cthe type of relationship,\xe2\x80\x9d and \xe2\x80\x9cthe frequency of interaction between the persons involved in the relationship.\xe2\x80\x9d 8 As we have explained,\nmaterially identical language supports the conclusion that an \xe2\x80\x9cintimate\npartner\xe2\x80\x9d may be the same sex as the abuser, and we see no reason for\nreaching a different conclusion as to this language when it defines the\nterm \xe2\x80\x9cdating partner.\xe2\x80\x9d In both cases, the relevant definitions contained in\nsection 2266 state that the terms \xe2\x80\x9cintimate partner\xe2\x80\x9d and \xe2\x80\x9cdating partner\xe2\x80\x9d in\nsection 2261 refer to a \xe2\x80\x9cperson\xe2\x80\x9d with a particular sort of relationship to\nthe abuser. They do not further suggest any limitation based on the sex of\neither the abuser or the victim or any requirement that the abuser and the\nvictim not be the same sex.\nThe limited legislative history that bears on the pertinent VAWA provisions is consistent with our reading of the terms \xe2\x80\x9cintimate partner\xe2\x80\x9d and\n\xe2\x80\x9cdating partner.\xe2\x80\x9d The 2006 VAWA amendments added the definition of\n\xe2\x80\x9cdating partner\xe2\x80\x9d and amended the definition of \xe2\x80\x9cspouse or intimate partner\xe2\x80\x9d for purposes of VAWA\xe2\x80\x99s criminal provisions. Those amendments\nalso sought to strengthen the health care system\xe2\x80\x99s response to domestic\nviolence, dating violence, sexual assault, and stalking. A finding pertaining to these latter changes discusses the \xe2\x80\x9chealth-related costs of intimate\npartner violence\xe2\x80\x9d and notes that \xe2\x80\x9c[t]hirty-seven percent of all women who\nsought care in hospital emergency rooms for violence-related injuries\nwere injured by a current or former spouse, boyfriend, or girlfriend.\xe2\x80\x9d\nPub. L. No. 109-162, \xc2\xa7 501(1)\xe2\x80\x93(2), 119 Stat. at 3023 (emphases added).\nThis finding\xe2\x80\x99s reference to \xe2\x80\x9cintimate partner\xe2\x80\x9d violence between women\nand their girlfriends comports with our conclusion that two individuals\n8 The 2006 VAWA amendments introduced the term \xe2\x80\x9cdating partner\xe2\x80\x9d and this attendant definition, Pub. L. No. 109-162, \xc2\xa7 116(b), 119 Stat. at 2989, although the 2000\namendments had previously used the term \xe2\x80\x9cdating violence\xe2\x80\x9d in several of VAWA\xe2\x80\x99s noncriminal provisions and had defined that term in nearly identical language, see, e.g., Pub.\nL. No. 106-386, \xc2\xa7 1108, 114 Stat. at 1500 (\xe2\x80\x9c[T]he term \xe2\x80\x98dating violence\xe2\x80\x99 means violence\ncommitted by a person\xe2\x80\x94(A) who is or has been in a social relationship of a romantic or\nintimate nature with the victim; and (B) where the existence of such a relationship shall\nbe determined based on a consideration of the following factors: (i) the length of the\nrelationship; (ii) the type of relationship; and (iii) the frequency of interaction between the\npersons involved in the relationship.\xe2\x80\x9d).\n\n154\n\n\x0cApplication of Violence Against Women Act When Offender and Victim Are Same Sex\n\nwho are the same sex may be considered \xe2\x80\x9cintimate partner[s]\xe2\x80\x9d for purposes of VAWA.\nSimilarly, H.R. 1248, 106th Cong. (1999), which became Public Law\n106-386, initially defined \xe2\x80\x9cdomestic violence\xe2\x80\x9d for purposes of VAWA\xe2\x80\x99s\ngrant programs as including \xe2\x80\x9cacts or threats of violence, not including acts\nof self-defense, committed . . . by a person who is or has been in a continuing social relationship of a romantic or intimate nature with the victim.\xe2\x80\x9d\nH.R. 1248, \xc2\xa7 2. During Committee markups, a manager\xe2\x80\x99s amendment\nchanged the definition to exclude the reference to those persons in romantic or intimate relationships. Instead, a separate definition of \xe2\x80\x9cdating\nviolence\xe2\x80\x9d was added to select VAWA programs. That definition tracks the\ndefinition of \xe2\x80\x9cdating partner\xe2\x80\x9d in the 2006 amendments, covering violence\ncommitted by a person \xe2\x80\x9cwho is or has been in a social relationship of a\nromantic or intimate nature\xe2\x80\x9d as determined by the length of relationship,\ntype of relationship, and frequency of interaction between the persons.\nSee supra note 8. In published additional views, sixteen members of\nCongress expressed concern that dating violence had not been included in\nall of VAWA\xe2\x80\x99s grant programs. In doing so, those members stated that\ndating violence encompassed violence in same-sex relationships. See\nH.R. Rep. No. 106-891, pt. 1, at 85 (2000) (Additional Views) (\xe2\x80\x9cOne of\nthe most serious concerns we have with the committee-passed bill is its\nfailure to expand the scope of VAWA funding to include programs designed to combat dating violence, including violence in same-sex relationships. As introduced, H.R. 1248 would have amended VAWA so that the\nterm \xe2\x80\x98domestic violence\xe2\x80\x99 would have included dating violence, and violence between same-sex couples, a position which is strongly supported\nby all of the major domestic violence and sexual assault groups, the\nDepartment of Justice, the National Association of Attorneys General, and\nthe U.S. Conference of Mayors.\xe2\x80\x9d (footnotes omitted)). In other words, the\nadditional views endorsed the position that a \xe2\x80\x9csocial relationship of a\nromantic or intimate nature\xe2\x80\x9d includes such a relationship between two\nindividuals who are the same sex. Nothing elsewhere in the House Report\ncalls this reading into question. Subsequently, in the 2006 VAWA\namendments Congress added the \xe2\x80\x9csocial relationship of a romantic or\nintimate nature\xe2\x80\x9d language to VAWA\xe2\x80\x99s criminal provisions, defining both\n\xe2\x80\x9cintimate partner\xe2\x80\x9d and \xe2\x80\x9cdating partner\xe2\x80\x9d in terms of such relationships. The\nlegislative history of this phrase in the 2000 House Report is thus con155\n\n\x0c34 Op. O.L.C. 147 (2010)\n\nsistent with reading the terms \xe2\x80\x9cintimate partner[s]\xe2\x80\x9d and \xe2\x80\x9cdating partner[s]\xe2\x80\x9d\nfor purposes of section 2261, as amended, to include two individuals who\nare the same sex.\nIII.\nThe text, relevant case law, and legislative history all support the conclusion that VAWA\xe2\x80\x99s three criminal provisions, 18 U.S.C. \xc2\xa7\xc2\xa7 2261,\n2261A, and 2262, apply to otherwise-covered conduct when the offender\nand victim are the same sex. And the views we have received reach the\nsame conclusion. Thus, for the reasons set forth above, we conclude that\neach of these provisions apply when the offender and the victim are the\nsame sex.\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n156\n\n\x0c'


b"April 19, 1979\n\n79-27\n\nMEMORANDUM OPINION FOR THE ACTING\nLEGAL ADVISER DEPARTMENT OF STATE\nForeign Service\xe2\x80\x94Retirement\xe2\x80\x94Amount of Annuity\n(22 U.S.C. \xc2\xa7 1076)\n\nAssistant Attorney General Harmon has asked me to respond to your\nrequest for our opinion regarding the proper construction o f certain\nstatutory provisions relating to the Foreign Service Retirement and Dis\xc2\xad\nability System.\nCongress, by \xc2\xa7 406 o f Pub. L. N. 95-426, approved October 7, 1978, 92\nStat. 979, liberalized retirement provisions for certain Foreign Service per\xc2\xad\nsonnel. Section 821(a) o f the Foreign Service Act o f 1946, 22 U.S.C.\n\xc2\xa7 1076(a), provides that one o f the factors in computing the amount o f an\nannuity under the Foreign Service Retirement and Disability System\n(Retirement System) is the annuitant\xe2\x80\x99s \xe2\x80\x9c average basic salary for his\nhighest three consecutive years o f service.\xe2\x80\x9d Section 406 allowed any par\xc2\xad\nticipant in the Retirement System whose salary was limited by 5 U.S.C.\n\xc2\xa7 5308 to compute his or her annuity based on his or her highest single\nannual salary instead o f the average 3-year form ula.' This benefit was to\naccrue only to eligible persons retiring between October 1, 1978, and\nDecember 31, 1979. In simple terms, \xc2\xa7 406 permitted those whose annual\nsalaries were frozen at\xe2\x80\x9e$47,500 to retire after 1 year at that salary level, and\nto have that am ount factored into the annuity formula as if they had\nserved 3 years at that level. The stated and obvious purpose o f \xc2\xa7 406 was to\ninduce early retirement among senior Foreign Service personnel during the\noperative period o f the provision.2\n\n1 Section 5308 limits the Federal pay-comparability system (5 U.S.C. \xc2\xa7\xc2\xa7 5301-5308) to the\nbasic rate o f pay for level V o f the Executive Schedule, which at all relevant times was\n$47,500.\n! The House International Relations Com mittee, in H. Rept. 1160, p. 29, 95th C ong., 2d\nSess. (1978), stated that, \xe2\x80\x9c It is hoped that this tem porary annuity provision will help alleviate\nthe overcrowding in the Foreign Service * *\nSee also H. Conf. Rept. 1535, 95th Cong.,\n2d Sess., at 52-53 (1978).\n\n183\n\n\x0cHowever, immediately after Pub. L. No. 95-426 was reported out of\nconference, Congress reconsidered the wisdom o f \xc2\xa7 406 and set the legisla\xc2\xad\ntive machinery in motion to stop it from becoming operative.3 One effort\ntook the form o f an appropriation restriction passed as part o f Pub. L.\nNo. 95-481, approved O ctober 18, 1978. The other effort, in more con\xc2\xad\nventional terms, was a simple repeal o f \xc2\xa7 406, which was included in Pub.\nL. No. 95-482, approved O ctober 18, 1978. We understand that during\nthe 11-day period \xc2\xa7 406 was in effect, 64 persons retired who were eligible\nto receive the liberalized retirement benefits.\nIt is clear that persons retiring after O ctober 18, 1978, cannot take ad\xc2\xad\nvantage o f \xc2\xa7 406. The question is whether the 64 retirees are entitled to the\n\xe2\x80\x9c high one\xe2\x80\x9d benefit o f \xc2\xa7 406. For the reasons that follow we believe that\nthey are.\nI.\nPublic Law 95-426 is the Foreign Relations Authorization Act for fiscal\nyear 1979. As stated above, \xc2\xa7 406 was intended as an early retirement in\xc2\xad\nducement for certain Foreign Service personnel. The House International\nRelations Committee in H. Rept. 1160, 95th Cong., 2d Sess. (1978), ex\xc2\xad\nplained \xc2\xa7 406 and the reasons leading to its enactment as follows:\n[It] provides a special retirement annuity for those Foreign Serv\xc2\xad\nice officers and other participants in the Foreign Service retire\xc2\xad\nment system who retire between O ctober 1, 1978 and December\n31, 1979 equal to 2 percent o f the basic salary for the highest\nsingle year o f service multiplied by the num ber o f years o f service\ncredit obtained. Current law com putes annuities on the basis of\nthe highest three years o f service.\nThe committee wishes to note that this provision is not intended\nto be a precedent for Federal employees generally or for Foreign\nService personnel other than those to whom this section applies.\nThe problems which gave rise to this solution are unique to the\nForeign Service. It is hoped that this tem porary annuity provision\nwill help alleviate the overcrowding in the Foreign Service which\nhas been caused by the President\xe2\x80\x99s personnel ceiling and the 1977\nDistrict C ourt decision in Bradley v. Vance holding the m andatory\nretirement age for Foreign Service officers unconstitutional.4\nThe conference report, H. Rept. 95-1535, elaborated on this explanation as\nfollows (p. 53):\nThe civil service system has authority for both reduction-in-force\nand early retirement inducements to handle similar personnel\nproblems. Tem porary and specific retirement inducements are\n\n\xe2\x80\x99 The legislative history o f Congress\xe2\x80\x99 reaction to \xc2\xa7 406 is set forth more fully infra.\nThe District C ourt opinion in Bradley v. Vance 436 F. Supp. 134 (D .D .C . 1977) (per\ncuriam), was reversed by the Supreme C ourt. Vance v. Bradley, 440 U .S. 93 (1979).\n4\n\n184\n\n\x0cused in civil service-staffed agencies when such agencies face dif\xc2\xad\nficult personnel problems such as that now confronting the\nForeign Service.\nThis section [\xc2\xa7 406] is necessitated by the separate personnel\nsystem o f the Foreign Service which has neither reduction-inforce nor special retirement inducement authority.\nThe Administration voiced strong opposition to \xc2\xa7 406, asserting that it\nwould set an unacceptable precedent for other retirement systems and con\xc2\xad\ntribute to inflation. It was also claimed that \xc2\xa7 406 would frustrate the A d\xc2\xad\nministration\xe2\x80\x99s pending effort to freeze executive pay by compensating for\nthe freeze with higher annuities.5 The President, however, approved Pub.\nL. No. 95-426 despite his strong opposition to \xc2\xa7 406\xe2\x80\x99s \xe2\x80\x9c high one\xe2\x80\x9d retire\xc2\xad\nment benefit. In his signing statement he stated that he did so because\nPub. L. No. 95-426 authorized \xe2\x80\x9c urgently needed appropriations\xe2\x80\x9d for the\nDepartment o f State, the International Communication Agency, and the\nBoard o f International Broadcasting. 14 Weekly Comp, o f Pres. Doc.\n1734-1735.\nII.\nShortly after \xc2\xa7 406 became law, two separate provisions were enacted:\none to prohibit the expenditure o f appropriated funds for \xc2\xa7 406 purposes\n(Pub. L. No. 95-481), and the other to repeal it (Pub. L. No. 95-482).\nThese provisions raise the question whether those Foreign Service person\xc2\xad\nnel who retired after \xc2\xa7 406 was passed but before these provisions came\ninto effect are entitled to receive the liberalized retirement benefits o f\n\xc2\xa7 406. More precisely, the issue is whether these provisions should be con\nstrued to apply prospectively, i.e., so as not to divest those who timely\ntook advantage o f \xc2\xa7 406\xe2\x80\x99s \xe2\x80\x9c high one\xe2\x80\x9d benefit, or whether they should be\ngiven retrospective effect. The general rule concerning such an issue was\ndealt with in Greene v. United States, 376 U.S. 149 (1964). There the\nCourt quoted with approval (id., at 160) from Union Pac. R. Co. v.\nLaramie Stock Yards Co., 231 U.S. 190, 199(1913):\n* * * the first rule o f construction is that legislation must be\nconsidered as addressed to the future, not to the past * * *\n[and] a retrospective operation will not be given to a statute\nwhich interferes with antecedent rights * * * unless such be the\nunequivocal and inflexible import o f the terms, and the manifest\nintention o f the legislature.\n\n5 These views are set forth in a June 26, 1978, letter from Secretary of State Vance and in a\nJuly 18, 1978, letter from the Director o f the Office o f M anagement and Budget, both a d \xc2\xad\ndressed to the Chairm an o f the Senate Foreign Relations Committee. The letters are printed\nat 124 C o n g r e s s i o n a l R e c o r d S15725 (daily ed. Sept. 21, 1978), and in S. Rept. 1194, 95th\nCong., 2d Sess., at 75-77 (1978), on the 1979 Foreign Assistance and Related Program s A p\xc2\xad\npropriation bill.\n\n185\n\n\x0cThe presumption against retrospectivity is designed to protect reasonable\nreliance on prior settled law. At bottom , the rule is basically one o f fair\xc2\xad\nness. Prospective construction is also presumed because retrospective\napplication in some cases would raise serious constitutional issues and\ncourts will not lightly infer a congressional intent fraught with such diffi\xc2\xad\nculties. United States v. Larionoff, 431 U.S. 864, 879 (1977). We believe\nthat retrospective construction in this case would present a constitutional\nproblem. We need not resolve it here because we conclude that Congress\ndid not intend a retrospective repeal o f \xc2\xa7 406.\nIII.\nAs we have already noted, even before \xc2\xa7 406 became law, Congress was\nmoving on two fronts to negate it. One such effort was enacted as part of\nPub. L. No. 95-481. We deal with that effort below.\nCongress in the 1979 Foreign Assistance and Related Programs A ppro\xc2\xad\npriations A ct, P ub. L. No. 95-481, appropriated funds to the Foreign\nService Retirement and Disability Fund. However, this appropriation pro\xc2\xad\nvided (92 Stat. 1592):\nT hat none o f these funds or other funds available to the Foreign\nService Retirement and Disability Fund shall be available to\ncarry out the provisions o f section 406 o f the Foreign Relations\nAuthorization A ct, Fiscal Year 1979.\nThe appropriation restriction, literally read, would preclude funding for\nany payments made pursuant to \xc2\xa7 406\xe2\x80\x99s \xe2\x80\x9c high one\xe2\x80\x9d provision. This, in ef\xc2\xad\nfect, constitutes a repeal with retroactive effect, at least for fiscal year\n1979, o f \xc2\xa7 406\xe2\x80\x99s benefit. However, the restriction, despite its seemingly\nplain language, was intended to be no more than a simple 1-year repeal of\n\xc2\xa7 406. The general rule against retrospective construction thus requires\nthat this action, absent a clear congressional intent to the contrary, apply\nonly prospectively.\nThe Supreme C ourt has recently stated that however clear statutory\nlanguage may appear, resort to the statute\xe2\x80\x99s legislative history to discern\nCongress\xe2\x80\x99 intent is proper. Train v. Colorado Pub. Int. Research Group,\n426 U.S. 1, 10 (1976). The legislative history o f the appropriation restric\xc2\xad\ntion dem onstrates, in our view, that it was, no doubt, intended as a repeal\xc2\xad\ning provision but that the language was used because the restriction\xe2\x80\x99s\nsponsors seemed to believe that to employ more conventional repealing\nlanguage would undermine the conference report and delay the urgently\nneeded authorization bill. Senator Inouye, the restriction\xe2\x80\x99s sponsor, ex\xc2\xad\nplained this as follows (124 C o n g r e s s io n a l R e c o r d S15725):\n[I]t might be said that the most logical and direct challenge to\n[\xc2\xa7 406] would have been a move to reject the conference report,\nwhich was adopted yesterday by the Senate, but that would have\nnecessitated a reconvening o f the conference and a further delay\non an already too-long delayed authorization bill. Therefore, in\nthe effort to focus direct attention on the \xe2\x80\x9c high-one\xe2\x80\x9d retirement,\n186\n\n\x0cthe [Senate Appropriations] committee chose another route\nreadily available to it, which was to restrict the funding o f this\nForeign Service retirement fund.\nIt seem s p lain th a t S e n a to r In o u y e u rg ed th e re stric tio n ro u te in o r d e r to\nacco m p lish th e sam e resu lt as a d irec t rep eal. O th e r legislative h isto ry s u p \xc2\xad\np o rts th is view. In th e H o u se , R e p re se n tativ e F ascell sta te d th a t th e re stric \xc2\xad\ntio n w as in te n d e d \xe2\x80\x9c to rep eal [\xc2\xa7 406] o f th e a u th o riz in g a c t.\xe2\x80\x9d 124 C o n \xc2\xad\ng r e s s io n a l R e c o r d H12629 (daily ed . O c t.\n12, 1978). T h e te rm\n\xe2\x80\x9c re p e a l\xe2\x80\x9d w as u sed re p e a te d ly to re fe r to th e re stric tio n . Id. V iew ing th e\nrestric tio n as a sim ple rep e al, th e g eneral rule again st retro sp e ctiv e c o n \xc2\xad\nstru c tio n sh o u ld ap p ly . T h a t is, unless C o n g ress m a n ifestly in te n d s r e tr o \xc2\xad\nspective rep eal, a repeal sh o u ld ap p ly o n ly prosp ectiv ely . H ere, n o su ch\nin te n t w as expressed. In d e e d , th e re is n o in d ic a tio n th a t C o n g ress sp ecifi\xc2\xad\ncally c o n c e rn e d itself w ith th is asp ec t o f th e m a tte r.\nA lth o u g h it is tru e th a t th e legislative h isto ry referre d to p e rso n s w hose\n\xc2\xa7 406 e n title m e n t h a d v ested , th e se referen ces d o n o t ta k e o n th e c o lo r o f a\nm an ifest in te n tio n th a t th e y w o u ld be d ivested o f th e ir e n title m e n ts.\nR ep resen tativ e B u c h a n a n , in o p p o sin g th e re stric tio n , sta te d (124 C o n \xc2\xad\ng r e s s io n a l R e c o r d H 12628):\n\nBut let us look for a moment to see whether this am endment will\naccomplish what the Senate intends. The retirement provision is\nlaw, the President signed it. It is an entitlement. Thus those plan\xc2\xad\nning to take advantage o f this provision\xe2\x80\x94and it is my under\xc2\xad\nstanding that 45 individuals have already done so\xe2\x80\x94could, and no\ndoubt would, take the United States to court to obtain the money\nto which they are entitled.\nRepresentative Fascell stated (124 C o n g r e s s io n a l R e c o r d H12629):\n[The appropriation restriction] has the direct legal effect o f sim\xc2\xad\nply complicating an issue which has already taken place and\nupon which people have relied. The proper process would be to\nsubmit a direct repealer or some other modification o f the issue\nin a proper legislative vehicle. [Emphasis added.]\nBy these remarks, the speakers in arguing against the restriction expressed\ndoubt as to whether it would have any legal effect. O f course, this doubt\nwas unfounded since it is well settled that Congress, where it clearly in\xc2\xad\ntends to do so, can in an appropriation act suspend, repeal, or otherwise\namend a statute. See, United States v. Dickerson, 310 U.S. 554, 555\n(1940); City o f L os Angeles v. Adams, 556 F. 2d 40, 48-49 (D.C. Cir.\n1977).6\nSection 109 o f Pub. L. No. 95-482, the Continuing Appropriations Act\nfor Fiscal Year 1979, reads as follows: \xe2\x80\x9c Section 406 o f Public Law 95-426 is\nrepealed.\xe2\x80\x9d But we find no legislative history suggesting that \xc2\xa7 109 was\n\n* We do not mean to say that every appropriation restriction must be applied only pros\xc2\xad\npectively. However, we stress that in this case the restriction was intended to function only as\na repeal.\n\n187\n\n\x0cintended to have retrospective effect. See 124 C o n g r e s s io n a l R e c o r d\n18862 for the brief Senate consideration. There was no debate in the\nHouse.\nWe also note that retrospective application o f \xc2\xa7 406\xe2\x80\x99s repeal by Pub. L.\nNo. 95-482 or retrospective application o f the appropriation restriction in\nPub. L. No. 95-481 would result in a particularly harsh and inequitable\nsituation for those who retired while \xc2\xa7 406 was in effect. They were in\xc2\xad\nduced to end their status as Governm ent employees in exchange for a\ndesignated benefit. Now that the Governm ent has induced such action it\nwould, at a minimum, be unseemly to renege on the \xe2\x80\x9c high one\xe2\x80\x9d promise.\nT hat result, with its harsh consequences, should not lightly be presumed to\nhave been Congress\xe2\x80\x99 intent.\nL e o n U lm a n\n\nDeputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n188\n\n\x0c"


b'Federal Bureau of Investigation Authority to\nInvestigate a Killing in the Virgin Islands\nU n d er 28 U .S.C . \xc2\xa7 533(3), th e F ed eral B ureau o f In v estig atio n (F B I) has a u th o rity to\nc o n d u c t an in v estig atio n o f any \xe2\x80\x9c official m atters u n d e r the c o n tro l o f th e D e p a rtm e n t\no f Ju s tic e .\xe2\x80\x9d Since, u n d e r 48 U .S.C . \xc2\xa7 1617, th e U nited S tates A tto rn e y for th e V irg in\nIslands is em p o w e re d to p ro secu te serious offenses against local law , in cluding m u rd e r,\nth e m u rd e r o f an im m ig ration ju d g e in the V irg in Islands is w ithin th e F B I\xe2\x80\x99s in v estig a\xc2\xad\ntiv e ju risd ictio n .\n\nOctober 2, 1980\nMEMORANDUM OPINION FOR T H E SPECIAL ASSISTANT\nTO TH E ATTORNEY G EN ER A L\nYour inquiry concerning the authority of the Federal Bureau of\nInvestigation (FBI) to investigate the killing of an immigration judge in\nthe Virgin Islands has been forwarded to me for response.\nIn our view, the FBI does have the power to investigate this matter\nif authorized by the Attorney General to assist the U.S. Attorney for\nthe Virgin Islands in the execution of his duties. Under 28 U.S.C.\n\xc2\xa7 533(3), the Attorney General may appoint agents\nto conduct such other investigations regarding official\nmatters under the control of the Department of Justice\n. . . as may be directed by the Attorney General.\nThe question is therefore whether an investigation into the killing of an\nimmigration judge would concern an \xe2\x80\x9cofficial matter[ ] under the con\xc2\xad\ntrol of the Department of Justice.\xe2\x80\x9d\nUnder 48 U.S.C. \xc2\xa7 1617, the U.S. Attorney for the Virgin Islands is\nempowered to prosecute all offenses against the laws of the Virgin\nIslands which are cognizable rn United States District Court there.\nUnder 48 U.S.C. \xc2\xa7 1612, the district court has jurisdiction over offenses\nagainst local law, exclusive jurisdiction over which is not conferred on\nthe inferior courts. Section 1613 of that title provides that the inferior\ncourts shall have exclusive criminal jurisdiction only over minor of\xc2\xad\nfenses involving a maximum fine of $100 or imprisonment for six\nmonths, or both. Hence, the U.S. Attorney for the Virgin Islands has\nstatutory jurisdiction to prosecute all more serious offenses. Although\nby local agreement his duty to prosecute crimes under Virgin Islands\nlaw is limited to felonies punishable by at least a five-year sentence, an\n795\n\n\x0cinvestigation into the possible murder of an immigration judge satisfies\nthis condition.\nThe U.S. Attorney is an officer in the Department of Justice and\nhence subject to the direction of the Attorney General (see 28 U.S.C.\n\xc2\xa7519).The investigation of this incident could lead to a prosecution\nwithin the jurisdiction of the U.S. Attorney. The investigation can\ntherefore properly be regarded as an \xe2\x80\x9cofficial matter[ ] under the con\xc2\xad\ntrol of the Department of Justice.\xe2\x80\x9d Accordingly, quite apart from any\npossible violations of federal law, the FBI can legally undertake an\ninvestigation if authorized to do so by the Attorney General to assist\nthe U.S. Attorney.\nL eo n U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n796\n\n\x0c'


b'Proposed Legislation to Grant Additional Power to\nThe President\xe2\x80\x99s Commission on Organized Crime\nThe President\xe2\x80\x99s Com m ission on O rganized Crime, a Presidential advisory committee with\nm em bers from the Legislative and Judicial Branches, may be granted subpoena power without\nviolating the Appointm ents Clause, U.S. Const, art. II, \xc2\xa7 2, cl. 2, or the Incompatibility\nClause, id., art. I, \xc2\xa7 6, cl. 2. As statutory aids to its investigation, the Commission should also\nseek the pow er to adm inister oaths and to have false statem ents punished as perjury.\nC onstitutional and policy concerns m ilitate against seeking independent authority for the Com \xc2\xad\nm ission to enforce subpoenas by holding individuals in contem pt, or to grant use immunity.\nThe pow er to grant use immunity raises questions about the Com m ission\xe2\x80\x99s advisory role and\nthe propriety o f service by members of the Legislative and Judicial Branches.\n\nAugust 24, 1983\nM\n\nem o ran d um\n\nO\n\np in io n f o r t h e\n\nA s s o c ia t e A t t o r n e y G e n e r a l\n\nOn July 28, 1983, President Reagan established the President\xe2\x80\x99s Commission\non Organized Crime (Commission), as an advisory committee under the Fed\xc2\xad\neral Advisory Committee Act (FACA), 5 U.S.C. app. I. See Exec. Order No.\n12435,48 Fed. Reg. 34723 (1983). Its duties are purely investigatory in nature,\nand will culminate in a final report to the President and the Attorney General.1\nThe Commission\xe2\x80\x99s membership includes a federal judge, two members of\nCongress and numerous private citizens.2\n1 As stated in \xc2\xa7 2(a) o f the Executive O rder:\nThe C om m ission shall m ake a full and com plete national and region-by-region analysis o f organized crime;\nd efine th e nature o f traditional organized c rim e as w ell as em erging organized crim e groups, the sources and\nam ounts o f organized crim e \xe2\x80\x99s income, an d the uses to which organized crim e puts its income; develop indepth inform ation on the participants in o rganized crim e netw orks; and evaluate Federal laws pertinent to the\neffo rt to com bat organized crim e. The C om m ission shall advise the President and the A ttorney G eneral with\nrespect to its findings and actions which c an be undertaken to improve law enforcem ent efforts directed\nagainst organized crim e, and m ake recom m endations concerning appropriate adm inistrative and legislative\nim provem ents and im provem ents in the adm inistration o f justice.\n2 See L eslie M aitland W em er, President C hooses 20 as M em bers o f O rganized Crime Commission, N.Y.\nT im es, Ju ly 19, 1983, at A l, col. 2. T h e m em bers include Judge Irving R. Kaufman, Senator Strom\nT hurm ond, R epresentative Peter W. R odino. Jr., form er Suprem e Court Justice Potter Stew art, as well as\nsixteen o th er individuals draw n from o u tsid e the federal governm ent. As this office has stated on many\noccasions, m em ber o f C ongress and federal ju d g es may sit on purely advisory com m ittees w ithout violating\neith e r the A ppointm ents C lause, U.S. C onst, art. II, \xc2\xa7 2, cl. 2, o r the Incom patibility Clause, id., art. I, \xc2\xa7 6, cl.\n2. M em bership on a purely advisory com m ittee does not constitute holding an \xe2\x80\x9cO ffice\xe2\x80\x9d under the Constitu\xc2\xad\ntion because such com m ittees possess no enforcem ent authority o r pow er to bind the Government. See 26 Op.\nA tt\xe2\x80\x99y G en. 247 (1907); 24 Op. A tt\xe2\x80\x99y Gen. 12 (1902); 22 Op. A tt\xe2\x80\x99y Gen. 184 (1898); H.R. Rep. No. 2205, 55th\nContinued\n\n128\n\n\x0cPursuant to your request, this memorandum addresses the issue of what\nadditional powers the Commission might seek from Congress as aids to its\ninvestigation. Of the five that have been suggested \xe2\x80\x94 the power to issue\nsubpoenas, to administer oaths, to hold individuals in contempt, to grant\nindividuals immunity, and to have false statements to the Commission be\nsubject to prosecution for perjury \xe2\x80\x94 we believe that the Department should\nonly seek the powers to issue subpoenas and administer oaths and to have false\nstatements punished as perjury.\nI. The Power to Issue Subpoenas and Administer Oaths\nA subpoena is a formal demand that instructs an individual to produce either\ntestimonial or documentary evidence.3 Some have suggested that the grant of\nsubpoena powers will in some fashion preclude the Commission from being a\npurely advisory body. We disagree. As discussed below, the subpoena power\nhas been used by all three branches of the Government and by the public as an\ninvestigative tool. Issuing a subpoena is not a purely executive function which\nmay only be exercised by officers of the Government nor is it a coercive or\nadjudicatory power that may only be exercised by the judiciary. Rather, it is a\npower that may be granted to those authorized to investigate, regardless of their\nother functions.\nSubpoena power has been granted to groups and individuals in many con\xc2\xad\ntexts. These include investigations conducted by members of all three branches\nof the Government, i.e., Congress, 2 U.S.C. \xc2\xa7 190m, the Judiciary, 43 U.S.C.\n\xc2\xa7 1619(d)(8), and Executive Branch agencies, 49 U.S.C. \xc2\xa7 12(1), as well as\ncivil suits where any party may request one. Fed. R. Civ. P. 45.4 Historically,\nthe power has also been given to some Presidential commissions.5\n2 ( . . . continued)\nCong., 3d Sess. 4 8 -5 4 (1899); E. C orw in, Presidential Pow er and the C onstitution 73-74 (R . Loss ed. 1977).\nFor the discussion o f judges serving in the Executive Branch in more than advisory capacities, see Indepen\xc2\xad\ndence o f Judges: Sh o u ld They Be Used fo r N on-Judicial W ork9, 33 A.B.A.J. 792 (1947). See also 40 Op.\nA tt\xe2\x80\x99y Gen. 423 (1945); M emorandum for Ramsey Clark, A ssistant A ttorney General, Lands Division from\nNorbert A. Schlei, A ssistant A ttorney General, O ffice o f Legal Counsel (Nov. 27, 1963) (\xe2\x80\x9cW hether the\nPresident should call upon Federal judges to engage in nonjudiciai functions fo r the Federal G overnm ent is\nbasically a m atter o f policy.\xe2\x80\x9d). Ironically, the very absence o f an Incom patibility Clause for judges m akes\nthem more vulnerable than Congressm en to criticism . Because they are able to accept positions in the\nExecutive B ranch, the public\xe2\x80\x99s attention is focused on the issue and questions are raised about whether the\nindependence o f the judiciary is being compromised.\n3 See, e.g., 1 U .S.C . \xc2\xa7 2717 (investigation o f egg production by the Secretary of A griculture) (\xe2\x80\x9cFor the\npurpose o f such investigation, the Secretary is em pow ered to adm inister oaths and affirm ations, subpoena\nwitnesses, compel th eir attendance, take evidence, and require the production of any books, papers, and\ndocum ents which are relevant to the inquiry.\xe2\x80\x9d ).\n4 O riginally, the courts resisted congressional grants o f subpoena power to agencies, see In re Pacific Ry.\nC om m \xe2\x80\x99n, 32 F. 241 (N. C ir Ca. 1887), and for many years the Supreme C ourt read the grants restrictively.\nJones v. SEC, 298 U.S. 1 (1936); F T C v. Baltim ore G rain, 261 U.S. 5 86(1924). This attitude began to change\nin the 1940s, how ever, and it is now firm ly settled that agencies may issue investigatory subpoenas that will\nbe enforced by the courts if the investigation is authorized and the inform ation sought is relevant. Oklahom a\nPress Publishing Co. v. Walling, 327 U.S. 186, 209 (1946). See generally 3 B. Mezines, J. Stein, J. G ruff,\nA dm inistrative Law \xc2\xa7 20.01 (1982) (M ezines); K. D avis, A dm inistrative Law Treatise (1958) (Davis).\n5 M ezines, supra note 4, \xc2\xa7 19.01, at 192 n.2; infra notes 7, 8.\n\n129\n\n\x0cThe reason that subpoena powers may be granted to so many diverse groups\nwithout running afoul of either the Appointments Clause, U.S. Const, art. II,\n\xc2\xa7 2, cl. 2, or the Incompatibility Clause, id., art. I, \xc2\xa7 6, cl. 2, or the general\ndoctrine mandating separation of powers, is two-fold. First, the subpoena\npower is not tied to any particular branch; it is not one of the functions\ndescribed by the Supreme Court as lodged exclusively in either the Executive,\nthe Judiciary or Congress. Buckley v. Valeo, 424 U.S. 1, 137-41 (1976).\nSecond, the power to issue a subpoena has not been viewed as the exercise of a\ncoercive power; thus, no matter what the issuing agent finds out, it cannot, in\nthe absence of any other power, use the information to do anything, such as\nenact or execute a law, adjudicate a dispute, or otherwise \xe2\x80\x9ctake any affirmative\naction which will affect an individual\xe2\x80\x99s rights.\xe2\x80\x9d Hannah v. Larche, 363 U.S.\n420,441 (1960) (describing powers of the Civil Rights Commission). Thus, the\npower to issue a subpoena does not intrude upon either the powers of a\nparticular branch or the legal rights of an individual. Although the document\nissued is styled as a command, the issuing authority is in fact dependent upon\nthe courts for enforcement:\nThough often complied with \xe2\x80\x94 to earn good will, for other\ntactical reasons, or out of ignorance that no obligation has yet\nattached \xe2\x80\x94 an agency subpoena typically has no independent\nforce . . . . The obligation to respond is determined only upon\njudicial review of the underlying order.\nW. Gellhom, C. Byse, P. Strauss, Adm inistrative Law 553-54 (1979). It is only\nwhen we reach the issue of actually enforcing subpoenas, discussed below, that\nconstitutional issues about functions reserved to the individual branches arise.\nTherefore, this Office has, on more than one occasion, approved the grant by\nCongress of subpoena powers to Presidential commissions that are purely\nadvisory in nature and that have members of the Legislative or Judicial Branch\non them. For example, in 1963 this Office approved a bill establishing the\nCommission on Political Activity of Government Personnel, 5 U.S.C. App.\n\xc2\xa7 118i note (Supp. II 1965-66), a commission composed of at least four\ncongressmen and two members of the Executive Branch and charged with\ninvestigating federal laws that limited political activity by federal employees.\nPub. L. No. 89-617, \xc2\xa7\xc2\xa72, 7, 80 Stat. 868 (1966).6 The Commission was\ngranted subpoena powers, id. \xc2\xa7 8(a), and we were specifically asked whether\nthe presence of congressmen created any legal problems. Our response was\nclear: \xe2\x80\x9cWe are not aware of any grounds, based upon legal, constitutional or\npolicy considerations, upon which to question the provisions of \xc2\xa7 8(a).\xe2\x80\x9d Memo\xc2\xad\nrandum for Nicholas deB. Katzenbach, Deputy Attorney General from Norbert\nA. Schlei, Assistant Attorney General, Office of Legal Counsel (Dec. 20, 1963).7\n6 M em orandum fo r N icholas deB. K atzenbach, D eputy A ttorney G eneral from N orbert A. Schlei, A ssistant\nA ttorney G eneral, O ffice o f Legal Counsel (M ay 1, 1963).\n7 In passing, w e pointed out two sim ilar com m issions th at had had subpoena pow ers \xe2\x80\x94 the Hoover\nC om m ission, and the C om m ission on Intergovernm ental R elations. See Pub. L. No. 8 3 -1 8 4 ,2 , 3, 67 Stat.\nC ontinued\n\n130\n\n\x0cWe have reached the same conclusion where the Commission includes mem\xc2\xad\nbers of the Judiciary, such as the Warren Commission.8 Memorandum for J.\nLee Rankin, General Counsel, The President\xe2\x80\x99s Commission from Norbert A.\nSchlei, Assistant Attorney General, Office of Legal Counsel (Jan. 16, 1964).\nAn earlier commission headed by a judge was the Commission to Investigate\nthe Japanese Attack of December 7, 1941, on Hawaii, chaired by Associate\nJustice Owen J. Roberts. Exec. Order No. 8983, 3 C.F.R. 1046 (1938-1943\nComp.); Pub. L. No. 77-370, 55 Stat. 853 (1941) (granting subpoena powers).\nSee also National Commission on the Causes and Prevention of Violence,\nExec. Order No. 11412, 3 C.F.R. 726 (1966-70 Comp.); Pub. L. No. 90-338,\n82 Stat. 176 (1968) (Judge A. Leon Higginbotham, Jr.).\nWe believe, therefore, that it is permissible for the Department to seek\nsubpoena powers for the Commission. There is no difficulty with the members\nof the Commission also being given the power to administer oaths. This is\ncommonly included when Congress grants the power to issue subpoenas.9 The\npower to administer oaths is useful not only in creating an air of serious\npurpose but also in bringing peijury charges.\nn . The Power to Enforce Subpoenas by Holding\nan Individual in Contempt\nWhen an individual refuses to comply with a subpoena, an agency must go to\ncourt, represented either by agency lawyers or by the Attorney General, to have\nit enforced.10 We do not believe that the Department should seek independent\ncontempt authority for the Commission \xe2\x80\x94 i.e., legislation that would permit\n7 ( . . . continued)\n142, 143 (1953) (C om m ission on the O rganization o f the Executive Branch o f the G overnm ent); Pub. L. No.\n83-185, \xc2\xa7 2, 67 Stat. 145 (1953). See also President\xe2\x80\x99s C om m ission on the A ccident at Three M ile Island,\nExec. O rder No. 12130, 3 C.F.R. 380 (1980 C om p.); Pub. L. No. 96 -12, 93 Stat. 26 (1979) (granting\nsubpoena powers); C om m ission on Security and C ooperation in Europe, 22 U .S.C. \xc2\xa7 3001 (1976); National\nC om m ission on Electronic Fund Transfers, 12 U.S.C. \xc2\xa7 2401 (1976); C om m ission on Federal Paperw ork, 44\nU.S.C. \xc2\xa7 3501 note (1976); C om m ission on G overnm ent Procurem ent, 41 U.S.C. \xc2\xa7 251 note (1970); C om m it\xc2\xad\ntee to Investigate Federal Expenditures, 26 U .S.C. \xc2\xa7 3600 (1946); Tem porary National Econom ic C om m ittee,\nPub. L. No. 7 5-456, 52 Stat. 705 (1938).\n8 The W arren Com m ission was form ally known as the C om m ission to Report Upon the A ssassination of\nPresident John F. K ennedy, Exec. O rder No. 11130, 3 C.F.R. 795 (1 959-63 Com p.). Subpoena pow ers were\ngranted in Pub. L. No. 8 8 -2 0 2 , 77 Stat. 362 (1963).\n9 See, e.g., 25 U .S.C. \xc2\xa7 174 note (1976), where the A m erican Indian Policy Review C om m ission is granted\nthe power:\nto adm inister such oaths and affirm ations and to take such testim ony . . . as it deem s advisable\n. . . . The Chairm an o f the C om m ission o r any m ember thereof may adm inister oaths or\naffirm ations to w itnesses.\nId.\\ Pub. L. No. 9 3 -5 8 0 , \xc2\xa7 3(a), 88 Stat. 1910 (1975).\n10 As a general rule, application is m ade to the ju d g e for an order directing the subpoenaed individual to\ncomply. W. G ellhom , C. Byse, P. Strauss, Adm inistrative Law 573 (1979). If that o rder is ignored, a separate\nproceeding is held to determ ine w hether the individual should be held in contem pt for failure to obey the\ncourt order. Id. Som e statutes com press these two steps into a one-stage proceeding in w hich the agency\ncertifies to the court that its subpoena has been disobeyed; then the court is supposed to hold a summary\nhearing to determ ine if this is true and, if so, to punish as for contem pt o f court. Id. at 575. \xe2\x80\x9cIn actuality, the\ncourts behave under these statutes ju st about as they do in the tw o-stage proceedings discussed earlier.\'\xe2\x80\x99 Id.\n\n131\n\n\x0cthe Commission to hold individuals in contempt on its own motion \xe2\x80\x94 because\nof both constitutional and policy objections.\nIn 1894, the Supreme Court stated that the Interstate Commerce Commission\ncould not, consistent with due process, enforce its own subpoenas by being\ngiven the power to commit or fine people for disobedience. ICC v. Brimsort,\n154 U.S. 447 (1894). Brimson involved the issue of whether Congress had the\nauthority to authorize the ICC to enforce its subpoenas in court. In concluding\nthat it did, the Court appeared to say that in fact only the courts could enforce\nthe subpoenas:\nThe inquiry whether a witness before the Commission is bound\nto answer a particular question propounded to him, or to pro\xc2\xad\nduce books, papers, etc., in his possession and called for by that\nbody, is one that cannot be committed to a subordinate adminis\xc2\xad\ntration or executive tribunal for final determination. Such a body\ncould not, under our system of government, and consistently\nwith due process law, be invested with authority to compel\nobedience to its orders by a judgment of fine or imprisonment.\nExcept in the particular instances enumerated in the Constitu\xc2\xad\ntion, and considered in Anderson v. Dunn, 6 Wheat. 204, and in\nK ilbou m v. Thompson, 103 U.S. 168, 190, of the exercise by\neither house of Congress of its right to punish disorderly behav\xc2\xad\nior upon the part of its members, and to compel the attendance of\nwitnesses, and the production of papers in election and impeach\xc2\xad\nment cases, and in cases that may involve the existence of those\nbodies, the power to impose fine or imprisonment in order to\ncompel the performance of a legal duty imposed by the United\nStates, can only be exerted, under the law of the land, by a\ncompetent judicial tribunal having jurisdiction in the premises.\nSee W hitcom b\xe2\x80\x99s Case, 120 Mass. 118, and authorities there\ncited.\nId. at 485. Since then, Congress has consistently required agencies to apply to\n\nthe courts for an order to compel compliance with a subpoena. It has \xe2\x80\x9cnever\xe2\x80\x9d\nconferred the power to enforce a subpoena on an issuing agency. L. Jaffe & N.\nNathanson, Administrative L aw 439 (1976). Thus, there has been no occasion\nfor the Court to re-examine the issue of whether the dictum in Brimson is still\ngood law.\nThere has been continuing debate on the issue among the commentators.11\nB rim son\xe2\x80\x99s analysis appears to rest upon the idea \xe2\x80\x9cthat the contempt power is\nnecessarily judicial, and [yet] the Supreme Court has unanimously held that\nlegislative bodies may punish for contempt.\xe2\x80\x9d 12 One commentator has noted\n11 See D avis, supra note 4, at 214-15; N o te, Use o f Contem pt Pow er to Enforce Subpoenas a nd Orders o f\nA dm in istra tive A gencies, 71 Harv. L. Rev. 1541 (1958).\n12 D avis, su p ra note 4, at 214 (citing J u m e y v. M acCracken, 294 U.S. 125 (1935) and M cG ram v.\nD augherty, 273 U.S. 135 (1927)).\n\n132\n\n\x0cthat grants of contempt power to both Congress and the courts are grounded in\nexpediency, not in the particular nature of the power:\nThe power of contempt is said to inhere in courts only because\nthey must have it to perform their functions. The judicial exten\xc2\xad\nsion of the power to Congress was justified solely on grounds of\nexpediency. To the extent, therefore, that the agency requires the\ncontempt power for the proper performance of its duties, the theo\xc2\xad\nretical argument seems as strong as that which justifies the existence\nof the contempt powers of the other branches of government.\nNote, Use o f Contem pt Power to Enforce Subpoenas and Orders o f Adminis\xc2\xad\ntrative Agencies, 71 Harv. L. Rev. 1541, 1551 (1958) (footnotes omitted). At\nleast one federal court, irritated by the delay engendered by resistance to\nagency subpoenas, has criticized the continued denial of contempt power to\nfederal agencies.13 The fact remains, however, that Brimson is the Supreme\nCourt\xe2\x80\x99s last word on the subject and in that case the Court did distinguish Congress\xe2\x80\x99\ncontempt power as being rooted in the Constitution and historical precedent.\nAlthough modem legal theory is less hostile to agency action than when\nBrimson was decided, there is at the same time more sensitivity to arguments\nthat due process requires that the prosecutor not also be the judge.14 We are\nreluctant to advise that it is permissible to seek contempt authority for the\nCommission. This is especially true when there is no need to press for this\nextraordinary power. Other Presidential commissions, charged with equally\nimportant tasks, have been able to rely on the courts to enforce their subpoenas.\nLikewise, federal agencies have functioned to Congress\xe2\x80\x99 satisfaction for de\xc2\xad\ncades without this power. Moreover, there are policy objections to seeking the\nauthority. Requesting contempt power would be very controversial, endanger\xc2\xad\ning the Department\xe2\x80\x99s ability to secure the most important part of the legislation\n\xe2\x80\x94 the subpoena power. Traditional notions of fair play and substantial justice,\nas well as concerns about the separation of powers, tend to militate against, at\nleast on policy grounds, granting such a power to a Commission composed, as\nthis one is, of members from all three branches of the federal government.\nIn fact, over the years Congress has decided that agencies should not have\nthe power, perhaps in part due to a concern that agencies will misuse it, as the\njudiciary and legislatures themselves at times have done.15 As Justice Frank\xc2\xad\nfurter observed:\n13 Federal M aritim e Comm \'n v. New York Term inal Conference, 373 F.2d 424 (2d Cir. 1967). Judge\nFriendly said:\nCongress m ight w ell consider w hether the long record o f frustrations and less restrictive m odem\nnotions o f the separation o f pow ers m ight not make it wise to em pow er at least some adm inistra\xc2\xad\ntive agencies to enforce subpoenas without having to resort to the courts in every case.\nId. at 426 n.2 (citations om itted). Some states have given their agencies the pow er to punish for contem pt\nw hile others have denied it. D avis, supra note 4, at 215.\n14 See, e.g.. W ard v. Village o f M onroeville, 409 U.S. 57 (1972); M orrissey v. Brewer, 408 U.S. 471, 4 8 5 86(1972 ).\n15 See, e.g.. H olt v. Virginia, 381 U.S. 131 (1965) (state court); Groppi v, Leslie, 404 U.S. 496 (1972)\n(W isconsin legislature).\n\n133\n\n\x0cBeginning with the Interstate Commerce Act in 1887, it became\na conventional feature o f Congressional regulatory legislation to\ngive administrative agencies authority to issue subpoenas for\nrelevant information. Congress has never attempted, however,\nto confer upon an administrative agency itself the power to\ncompel obedience to such a subpoena. It is beside the point to\nconsider whether Congress was deterred by constitutional diffi\xc2\xad\nculties. That Congress should so consistently have withheld\npowers of testimonial compulsion from administrative agencies\ndiscloses a policy that speaks with impressive significance.\nPennfield Co. v. SEC, 330 U.S. 585,603-04 (1947) (Frankfurter, J., dissenting)\n(dictum). It is unlikely that Congress, having denied the power to permanent\n\nagencies \xe2\x80\x94 including those with quasi-judicial functions \xe2\x80\x94 for almost one\nhundred years, is going to confer such power on a temporary advisory commis\xc2\xad\nsion. Requesting the authority would suggest to Congress either a disquieting\nignorance of historical precedent or a presumptuous disregard of it. We do not\nbelieve the Department should ask Congress to grant contempt power to the\nCommission.\nIII. The Power to Grant Immunity\nIt has also been suggested that the Department ask that the Commission be\ngiven the power to grant \xe2\x80\x9cuse\xe2\x80\x9d immunity.16 We assume that this would be done\nby adding the Commission to the list of authorized agencies in 18 U.S.C.\n\xc2\xa76001(1).17 Authorized agencies may, with the approval of the Attorney\nGeneral, issue an order to an individual who is claiming his Fifth Amendment\nprivilege, requiring him to testify.18 Information derived from such testimony\nis barred from use against the witness in any criminal case.\n16 \xe2\x80\x9cU se\xe2\x80\x9d im m unity provides immunity from prosecution based on the com pelled testimony o r evidence\nderived from th at testim ony, as distinguished from \xe2\x80\x9ctransactional" im m unity, which grants full immunity\nfrom prosecution o f the offense to which th e com pelled testim ony relates Use immunity was found to be\ncoextensive w ith the Fifth A m endm ent\'s guarantee against self>incnm ination in K astigar v U nited States,\n406 U.S. 441 (1972).\n17 C ongress enacted the present immunity statute in 1970. 18 U.S.C. \xc2\xa7\xc2\xa7 6001-6005. Authorized agencies\nare the basic executive and military departm ents, 5 U .S.C. \xc2\xa7\xc2\xa7 101, 102, and about fifteen other agencies. 18\nU .S.C . \xc2\xa7 6 0 0 1 (1 ).\n18 18 U .S .C \xc2\xa7 6004 provides.\n(a) In the case o f any individual w h o has been o r who may be called to testify or provide other\ninform ation at any proceeding before an agency o f the U nited States, the agency may, w ith the\napproval o f the A ttorney General, issue, in accordance w ith subsection (b) of this section, an\no rd er requiring the individual to g iv e testim ony o r provide other information which he refuses to\ng ive o r provide on the basis of his privilege against self-incnm ination. Such order to become\ne ffective as provided in section 6002 o f this part.\n(b) An agency o f the United States may issue an order under subsection (a) of this section only\nif in its ju d g m en t \xe2\x80\x94\n(1) the testim ony o r other inform ation from such individual may be necessary to the public\nin terest; and\n(2) such individual has refused o r is likely to refuse to testify o r provide other inform ation on\nthe basis o f his privilege against self-incrim ination\n\n134\n\n\x0cAlthough the grant of use immunity to witnesses has been described as an\nexecutive function by some courts,19 it is not clearly executive in the sense\ndescribed in Buckley v. Valeo, 424 U.S. 1 (1976), because rather than being a\npower committed wholly to the Executive Branch, it is a statutory creation that\nhas also been given to Congress and its committees. 18 U.S.C. \xc2\xa7 6005.20 The\npower to grant immunity is, however, a function that raises doubts about the\nCommission\xe2\x80\x99s role and the propriety of service on it by members of the\nlegislature. As noted above, see supra note 2, we have described advisory\ncommittees as those that do not have the power to bind the Government. The\npower to grant use immunity is the power to bind the Government not to\nprosecute an individual for criminal conduct revealed through his testimony.\nAlthough it may not be an executive function for Congress to grant immunity\nfor testimony heard pursuant to a legislative investigation, it may be an execu\xc2\xad\ntive function for the Commission to grant immunity to witnesses in the course\nof an Executive Branch investigation. Executive functions may be performed\nonly by officers of the government \xe2\x80\x94 which Congressmen may not be. Were a\ncourt to conclude that the Congressmen were without authority either to sit on\nthe Commission or to vote on the grants of immunity, the work of the Commis\xc2\xad\nsion could be imperiled. A court might nullify grants of immunity or restrict the\nCongressmen\xe2\x80\x99s role on the Commission. The same arguments can be made\nwith respect to judges because the judiciary has neither inherent nor statutory\npower to grant immunity for judicial investigations.\nThe power to grant immunity is inevitably tied to prosecutorial decisions.\nThis is especially true when the Commission is charged with investigating an\narea of special concern to federal prosecutors, such as organized crime. If, as\nseems likely, the Commission calls as a witness someone who has evidence of\na crime or is the target of an ongoing criminal investigation, there are several\nways a grant of immunity by the Commission might interfere with the\nDepartment\xe2\x80\x99s ability to prosecute. Most obviously, granting immunity could\ndeprive the Department of a desired conviction by immunizing the witness.\nGiven the current trend towards complicated, multi-year undercover opera\xc2\xad\ntions, the Attorney General\xe2\x80\x99s statutory veto power, 18 U.S.C. \xc2\xa7 6004(b), does\nnot solve the problem. Even refusing to concur may alert an individual to the\nfact that he is the target of an ongoing or proposed investigation. Moreover,\ngiven the Commission\xe2\x80\x99s advisory nature, there is much less chance that there\nwill be effective coordination with the Department\xe2\x80\x99s many units, scattered\nacross the country, in order to avoid entanglement with such investigations.\nThat the Department may have built a complete case without the compelled\ntestimony \xe2\x80\x94 and, therefore, still be able to prosecute \xe2\x80\x94 is small comfort\n19 See U nited States v. D \'A spice, 664 F.2d 75, 77 (5th Cir. 1981) (judiciary has no inherent pow er to grant\nuse immunity); U nited States v. Lenz, 616 F 2d 960, 962 (6th Cir.), cert, denied, 447 U.S. 929 (1980)\n20 The im m unity statute covers only use immunity. If the statute granted transactional immunity, there\nwould be a serious constitutional problem. G ranting transactional immunity means that the individual cannot\nbe prosecuted for the illegal conduct. We believe that the decision to grant transactional im m unity is\nessentially a decision not to prosecute, and the decision w hether to prosecute is an executive function in the\nBuckley sense. 424 U.S. at 138.\n\n135\n\n\x0cbecause the individual will undoubtedly try to prove that the case is derived\nfrom the compelled testimony and the burden of proof will be on the govern\xc2\xad\nment to show the independent derivation of the case. See, e.g., United States v.\nProvenzano, 620 F.2d 985, 1005 (3d Cir.), cert, denied, 449 U.S. 889 (1980).\nThus, a straightforward prosecution could suddenly be jeopardized by the\nintrusion of an unnecessary hurdle. We believe that this issue should be\ncarefully reviewed before any final decision is made.\nThe same policy rationale that argues against seeking contempt powers also\nargues against seeking immunity. The power to grant immunity is an extraordi\xc2\xad\nnary tool given to a small core group of Executive Branch agencies, whose use\nshould be carefully guided by consideration of potential or ongoing investiga\xc2\xad\ntions. Obviously, the Commission might discover more if given the right to\ngrant immunity; nevertheless, other Presidential commissions have done their\nwork satisfactorily without it, and its availability seems unnecessary in light of\nthe Commission\xe2\x80\x99s generally phrased task. We would strongly urge that the\nDepartment not seek the power to grant immunity for the Commission.\nIV. IPirosecunttnoini for Perjury\nThere are presently two general statutes covering peijury and subornation of\nperjury. 18 U.S.C. \xc2\xa7\xc2\xa7 1621, 1622.21 Although these two statutes are occasion\xc2\xad\nally incorporated by reference in statutes dealing with particular programs, see,\ne.g., 30 U.S.C. \xc2\xa749e; 8 U.S.C. \xc2\xa7 1357(b), they may also be referred to by\nimplication where, for example, a specific statute will merely say that the\n\xe2\x80\x9cperson so falsely swearing shall be deemed guilty of peijury.\xe2\x80\x9d 46 U.S.C.\n\xc2\xa7 170(13). See also 22 U.S.C. \xc2\xa7 4221. Other statutes set up their own punish\xc2\xad\nments for false statements. See 18 U.S.C. \xc2\xa7 1546. Which course to adopt would\nappear to be a policy choice but we would suggest that the litigating divisions,\nespecially the Criminal Division, be consulted. If it is decided to rely on the\ngeneral peijury statute, we are not aware of any reason why the Commission\n21 18 U .S.C . \xc2\xa7 1621 states:\nW hoever \xe2\x80\x94\n(1) having taken an oath before a com petent tribunal, officer, or person, in any case in which a\nlaw o f the U nited States authorizes an oath to be adm inistered, that he will testify, declare,\ndepose, o r certify truly, or that an y w ritten testim ony, declaration, deposition, or certificate by\nhim subscribed, is true, willfully an d contrary to such oath states or subscnbes any material\nm atter w hich he does not believe to be true; o r\n(2) in any d eclaration, certificate, verification, o r statem ent under penalty o f perjury as\np erm itted under section 1746 o f title 28, U nited States Code, w illfully subscribes as true any\nm aterial m atter w hich he does not believe to be true; is guilty o f peijury and shall, except as\notherw ise expressly provided by la w , be fined not m ore than $2,000 o r imprisoned not more than\nfive y ears, o r both. T his section is applicable w hether the statem ent or subscription is made\nw ithin o r w ithout the United States.\n18 U .S .C . \xc2\xa7 1622 states:\nW hoever procures an o th er to commit an y peijury is guilty o f subornation o f peijury, and shall be fined not\nm ore than $2,000 o r im prisoned not m ore than five years, o r both.\nSee a lso 28 U .S.C . \xc2\xa7 1746 (making unsw orn statem ents subject to punishm ent for perjury).\n\n136\n\n\x0cwould not fall within the category of \xe2\x80\x9ccompetent tribunal.\xe2\x80\x9d22 Nevertheless, we\nrecommend that any proposed legislation include a specific provision referring\nto 18 U.S.C. \xc2\xa7 1621 to eliminate any doubt that the general statute applies.23\nV. Possible Phrasing of Legislation\nGrants of subpoena power vary, both in specificity and in the limits placed\nupon the grants.24 The basic grant, which also includes the administration of\noaths, is often phrased in terms similar to the following:\nThe Commission shall have the power to issue subpoenas re\xc2\xad\nquiring the attendance and testimony of witnesses and the pro\xc2\xad\nduction of any evidence that relates to any matter under investi\xc2\xad\ngation by the Commission. The Commission or any member of\nthe Commission may administer oaths and affirmations, exam\xc2\xad\nine witnesses, and receive evidence. Such attendance of wit\xc2\xad\nnesses and the production of such evidence may be required\nfrom any place within the United States at any designated place\nof hearing.\nThe next paragraph will generally cover the contempt power.\nIn case of contumacy or refusal to obey a subpoena issued to any\nperson under the previous paragraph, any district court of the\nUnited States, upon application by the Attorney General, shall\nhave jurisdiction to issue to such person an order requiring a\nwitness to appear before the Commission or its members, there\nto produce evidence if so ordered, or there to give testimony\ntouching the matter under investigation or in question; and any\nfailure to obey such order of the court may be punished by the\ncourt as a contempt thereof.\nThis basic formula can be varied in many ways: by permitting individual\nCommission members, when authorized, to issue subpoenas;25 by limiting the\nsubpoena to witnesses only, not documents;26 by expanding the courts to which\n22 Testimony before investigative com m ittees has often resulted in perjury convictions. See U nited States v.\nHaldeman, 559 F.2d 31, 102-04 (D.C. Cir. 1976) (Senate Select Com m ittee on Presidential C am paign\nActivities), cert, denied, 431 U.S. 933 (1977); M eyers v. United States, 171 F.2d 800, 811 (D.C. Cir. 1948)\n(Senate subcom m ittee), cert, denied, 336 U.S. 912 (1949); Boehm v. U nited States, 123 F.2d 791, 800-01\n(8th Cir. 1941) (SEC ), cert, denied, 315 U.S. 800 (1942); State v. Reuther, 81 So. 2d 387, 388-89 (La. 1955)\n(Special C itizens Investigating Com m ittee).\n23 Competence may also be affected by procedural requirem ents. For exam ple, for a legislative com m ittee\nto be com petent, a properly constituted quorum must be present. See C hristojfel v. U nited States, 338 U .S. 84\n(1949); United S tates v. Reincke, 524 F.2d 435, 437 (D.C. Cir. 1975).\n24 Compare 5 U .S.C. \xc2\xa7 8126(1) (Secretary o f Labor) w ith 22 U.S.C. \xc2\xa7 1623(c) (Foreign Claims Settlem ent\nCommission).\n25 Pub. L. No. 9 6 -1 2 , \xc2\xa7 2(a), 93 Stat. 26 (1979). A lternatively, issuance o f subpoenas by the Com m ission\ncould be made pursuant to a vote o f tw o-thirds or three-quarters o f the members, rather than a simple\nmajority.\n26 5 U.S.C. \xc2\xa7 304(a).\n\n137\n\n\x0cthe Attorney General may apply;27 by limiting the distance witnesses may be\nforced to travel;28 or by permitting witnesses to be excused by the court if the\nrequired testimony or evidence would tend to incriminate them or subject them\nto a criminal penalty.29 The method of service may also vary,30 and the\npayment of witness fees may be specifically included.31 The Commission may\nbe permitted to apply to the court for enforcement of the subpoena through its\nown staff attorneys, rather than through the Attorney General.32 Which of these\nitems to include is obviously a policy choice.33\nConclusion\nThe Commission may be given subpoena powers by Congress without\ncasting any doubt on the propriety of the service of either Judge Kaufman,\nSenator Thurmond or Representative Rodino. We do not believe that the\nDepartment should seek contempt or immunity powers for the Commission.\nWhichever powers are sought, care should be taken that their use does not raise\nany suggestion that the Commission is targeting particular individuals. Courts\nhave in various contexts been critical of the practice of parallel civil and\ncriminal investigations because of their concern that information obtained in\none context will be improperly used to aid an investigation.34 As we understand\nit, the Commission\xe2\x80\x99s mandate is to survey the general nature of organized\ncrime, not to uncover its members, and the prudential use of whichever powers\nare granted should protect against accusations that the Commission is being\nused as a stalking horse for the Department\xe2\x80\x99s own investigations.\nRa lph W . T arr\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n11 Pub. L. No. 9 6 -1 2 , \xc2\xa7 2(c), 93 Stat 26 (1979) (any court o f the United States); 7 U.S.C \xc2\xa7 2917 (any court\no f the U nited States w ithin w hose jurisd ictio n the investigation is being earn ed on); Pub. L. No. 94-106,\n\xc2\xa7 816(d)(2), 89 Stat. 540 (1975) (any d istric t court fo r any district in w hich the person is found, resides or\ndoes business).\n28 42 U .S.C . \xc2\xa7 1975a(k) (w itness may n o t be forced to travel outside his State unless distance is 50 miles or\nless).\n29 Pub. L. No. 9 3 -5 5 6 , \xc2\xa7 6(b)(3), 88 S tat. 1789 (1974).\n^ M e z in e s , supra note 4, at 20-51.\n3142 U .S.C . \xc2\xa7 2201(c).\n32 7 U .S.C . \xc2\xa7 2917; 42 U .S.C . \xc2\xa7 6299(a). T he obvious disadvantage o f Congress granting such perm ission is\na loss o f D epartm ent control over the C om m ission\xe2\x80\x99s activities, particularly in cases in which coordination is\nnecessary to facilitate a crim inal investigation o r prosecution not involved with the C om m ission\'s area of\ninquiry.\n33 In addition to these item s, Congress m ay also consider adding restraints sim ilar to those placed on the\nC ivil R ights C om m ission, w hich must, am o n g other things, perm it w itnesses to present a written statement,\nbe represented by counsel and to answer defam atory o r degrading evidence. 42 U.S.C. \xc2\xa7 1975a(c), (e), (h).\n34 U nited States v. Sells E n g \xe2\x80\x99g, 463 U.S. 418 (1983); U nited States v. LaSalle N a t\'l Bank. 437 U.S. 298\n(1978).\n\n138\n\n\x0c'