Limitation on the Opinion Function of the Office of Legal Counsel

Office of Legal Counsel

Limitation on the Opinion Function of the Office of Legal Counsel

Department of Justice Office of Legal Counsel·Decided May 22, 1979·Published

Opinion

May 22, 1979

79-34 MEMORANDUM OPINION FOR THE ACTING CHIEF, ORGANIZED CRIME AND RACKETEERING SECTION, CRIMINAL DIVISION

Office o f Legal Counsel—Limitation on Opinion Function

This confirms the advice we gave orally concerning your May 18 memo randum concerning a requested Office o f Legal Counsel opinion. You state that a Federal district judge has asked for our opinion on an issue that has arisen in connection with a pending grand jury investigation. That issue is whether the Department o f Justice has the authority to investigate possible violations o f title 18, involving pension plans covered by the Employee Retirement Income Security Act, 29 U .S.C . § 1001 et seq. As I indicated orally to you previously, it would not be appropriate in this cir cumstance for us to render a legal opinion.

The Attorney General has delegated certain responsibilities to the Office o f Legal Counsel, including the preparation o f his formal opinions and advice to Government agencies. 28 CFR § 0.25. That delegation does not authorize us to provide legal advice at the request o f the judicial branch. Moreover, the opinion function o f the Attorney General himself is limited by statute to the provision o f advice to the President, the heads o f execu tive departments, and the Secretaries o f military departments. 28 U.S.C. §§ 511-513.

In addition to those restrictions on our opinion function, we note that this Department has, as a m atter o f policy, consistently refrained from opining on questions presented to the courts for resolution. The Attorney General has stated, for example:

[T]his Department has uniformly refused to consider any ques tions that have been committed to judicial review. To do so might bring this Department into conflict with a Judicial tribunal, and this has been held to be an adequate reason for a refusal to give an official opinion. [24 Op. A tt’y Gen. 59, 60 (1902).]

Similar statements appear in num erous other opinions o f the Attorneys General. See, e.g., 41 Op. A tt’y Gen. 266, 273 (1956); 38 Op. A tt’y Gen. 149, 150 (1934); 37 O p. A tt’y Gen. 34, 42 (1932). Since the question you have asked us is pending before the court, we do not believe it would be appropriate for us to respond to the request.

John M. Harm on

Assistant A ttorney General Office o f Legal Counsel

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May 22, 1979

79-34 MEMORANDUM OPINION FOR THE ACTING CHIEF, ORGANIZED CRIME AND RACKETEERING SECTION, CRIMINAL DIVISION

Office o f Legal Counsel—Limitation on Opinion Function

This confirms the advice we gave orally concerning your May 18 memo randum concerning a requested Office o f Legal Counsel opinion. You state that a Federal district judge has asked for our opinion on an issue that has arisen in connection with a pending grand jury investigation. That issue is whether the Department o f Justice has the authority to investigate possible violations o f title 18, involving pension plans covered by the Employee Retirement Income Security Act, 29 U .S.C . § 1001 et seq. As I indicated orally to you previously, it would not be appropriate in this cir cumstance for us to render a legal opinion.

The Attorney General has delegated certain responsibilities to the Office o f Legal Counsel, including the preparation o f his formal opinions and advice to Government agencies. 28 CFR § 0.25. That delegation does not authorize us to provide legal advice at the request o f the judicial branch. Moreover, the opinion function o f the Attorney General himself is limited by statute to the provision o f advice to the President, the heads o f execu tive departments, and the Secretaries o f military departments. 28 U.S.C. §§ 511-513.

In addition to those restrictions on our opinion function, we note that this Department has, as a m atter o f policy, consistently refrained from opining on questions presented to the courts for resolution. The Attorney General has stated, for example:

[T]his Department has uniformly refused to consider any ques tions that have been committed to judicial review. To do so might bring this Department into conflict with a Judicial tribunal, and this has been held to be an adequate reason for a refusal to give an official opinion. [24 Op. A tt’y Gen. 59, 60 (1902).]

Similar statements appear in num erous other opinions o f the Attorneys General. See, e.g., 41 Op. A tt’y Gen. 266, 273 (1956); 38 Op. A tt’y Gen. 149, 150 (1934); 37 O p. A tt’y Gen. 34, 42 (1932). Since the question you have asked us is pending before the court, we do not believe it would be appropriate for us to respond to the request.

John M. Harm on

Assistant A ttorney General Office o f Legal Counsel

Limitation on the Opinion Function of the Office of Legal Counsel, (olc 1979).

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