GAO/GGD-00-171

U.S. Attorneys: Laws, Rules, and Policies Governing Political Activities
(Letter Report, 07/24/2000, GAO/GGD-00-171).

Pursuant to a congressional request, GAO discussed various laws, rules,
and policies related to the political activities of U.S. Attorneys,
focusing on: (1) what laws and Department of Justice (DOJ) rules and
policies govern U.S. Attorneys' involvement in Hatch Act partisan
political activities; (2) what types of activities are permitted and
what types are prohibited; (3) to what extent have U.S. Attorneys been
involved in Hatch Act partisan political activities; (4) what DOJ rules
and policies govern U.S. Attorneys' involvement in issue-oriented
political activities; (5) to what extent have U.S. Attorneys been
involved in issue-oriented political activities; and (6) what statutory
or other provisions govern U.S. Attorney Offices' expenditure of federal
funds and resources for political activities.

GAO noted that: (1) U.S. Attorneys are prohibited from actively
participating in Hatch Act partisan political activities; (2) generally,
many restrictive provisions applicable to U.S. Attorneys are not imposed
by the Hatch Act; (3) rather, they have been established under the
Attorney General's discretionary authority and are documented in
Attorney General policy memorandums; (4) these restrictions are similar
to those that were imposed by statute on all federal employees before
the Hatch Act Reform Amendments of 1993; (5) DOJ does not maintain or
track data on U.S. Attorneys' participation in Hatch Act partisan
political activities; (6) DOJ officials said that they are not aware of
any violations of Attorney General restrictions related to the Hatch
Act, since at least January 1995; (7) regarding issue-oriented political
activities, before May 2000, DOJ rules and policies--as contained in the
U.S. Attorneys' Manual--primarily addressed U.S. Attorneys' direct
interaction with state and local legislative bodies; (8) in May 2000,
DOJ revised the U.S. Attorneys' Manual to provide additional guidance
and oversight related to public communications; (9) a new section to the
manual--incorporating advice that previously had been given
orally--discusses the need to be sensitive to comity considerations;
(10) before January 2000, DOJ did not maintain or track data on the
issue-oriented political activities of U.S. Attorneys at that the state
or local level; (11) DOJ began to track U.S. Attorney Office inquiries
related to such activities in January 2000; (12) DOJ's summaries of
inquiries show that from January 19, 2000, to March 22, 2000, U.S.
Attorney Offices contacted DOJ nine times for advice or approval
regarding activities that involved or could potentially involve state or
local legislative matters; (13) according to DOJ officials, beginning in
May 2000, all activities that require prior DOJ approval under the
revised U.S. Attorneys' Manual will be tracked; (14) over the years,
Congress has imposed various restrictions on the use of federal funds
for certain political activities; and (15) the restrictions applicable
to DOJ have been construed to prohibit: (a) grass-roots lobbying in the
form of agency appeals to the public to contact members of Congress in
support of or in opposition to pending legislation; (b) publicity of a
nature tending to emphasize an agency's own importance; and (c) covert
propaganda activities.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  GGD-00-171
     TITLE:  U.S. Attorneys: Laws, Rules, and Policies Governing
	     Political Activities
      DATE:  07/24/2000
   SUBJECT:  Political activities
	     Ethical conduct
	     Lobbying activities
	     Public officials
	     Lawyers

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United States General Accounting Office
GAO

Report to Congressional Requesters

July 2000

GAO/GGD-00-171

U.S. ATTORNEYS
Laws, Rules, and Policies Governing Political

Activities

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Contents
Page 181GAO/GGD-00-171 Political Activities of U.S. Attorneys
Letter                                                                      1
                                                                             
Appendix I                                                                 20
Chronology of Attorney
General-Imposed
Restrictions on the
Political Activities of
U.S. Attorneys
                           1994 Attorney General Policy                    20
                           Memorandum
                           1996 Attorney General Policy                    22
                           Memorandums
                           1998 Attorney General Policy                    23
                           Memorandum
                           2000 Attorney General Policy                    24
                           Memorandums
                                                                             
Appendix II                                                                25
U.S. Attorney Office
Inquiries to DOJ
Regarding Issue-Oriented
Political Activities
                           Four Inquiries Required DOJ Approval            25
                           Five Inquiries Did Not Require DOJ              26
                           Approval
                                                                             

Abbreviations

DOJ       Department of Justice
EOUSA     Executive Office for United States
Attorneys

B-285535

Page 17GAO/GGD-00-171 Political Activities of U.S.
Attorneys
     B-285535

     July 24, 2000

The Honorable Charles E. Grassley
Chairman, Subcommittee on Administrative
    Oversight and the Courts
Committee on the Judiciary
United States Senate

The Honorable Christopher S. Bond
Chairman, Committee on Small Business
United States Senate

As you requested, this report discusses various
laws, rules, and policies related to the political
activities of U.S. Attorneys. For this report, we
have defined political activities as consisting of
the following:

ï¿½    Hatch Act1 partisan political activities:
These activities are directed toward the success
or failure of a political party, candidate for
partisan political office, or partisan political
group. Examples of Hatch Act political activities
include campaigning for a candidate and attending
a fund-raiser.
ï¿½    Issue-oriented political activities: These
activities involve responding to congressional,
state, or local legislative requests for
information, assistance, or testimony and
commenting on matters of congressional, state, or
local legislative responsibility. Examples of
issue-oriented political activities include
testifying before a state legislature and making
comments to the public or media regarding a state
proposition or referendum.

Regarding such activities, this report addresses
the following questions:

ï¿½    What laws and Department of Justice (DOJ)
rules and policies govern U.S. Attorneys'
involvement in Hatch Act partisan political
activities? What types of activities are permitted
and what types are prohibited? To what extent have
U.S. Attorneys been involved in Hatch Act partisan
political activities?
ï¿½    What DOJ rules and policies govern U.S.
Attorneys' involvement in issue-oriented political
activities? To what extent have U.S. Attorneys
been involved in issue-oriented political
activities?
ï¿½    What statutory or other provisions govern
U.S. Attorney Offices' expenditure of federal
funds and resources for political activities?

Results in Brief
U.S. Attorneys are prohibited from actively
participating in Hatch Act partisan political
activities. Generally, many restrictive provisions
currently applicable to U.S. Attorneys are not
imposed by the Hatch Act. Rather, they have been
established under the Attorney General's
discretionary authority and are documented in
Attorney General policy memorandums.  These
restrictions are similar to those that were
imposed by statute on all federal employees before
the Hatch Act Reform Amendments of 1993. For
example, U.S. Attorneys are prohibited from
speaking at political party functions, campaigning
for candidates, or actively participating at fund-
raisers. However, with prior DOJ approval, U.S.
Attorneys can passively participate in certain
events (e.g., attend a political fund-raiser).
They can also make donations to candidates or
parties of their choice, as long as the donations
are not used in a promotional manner.

DOJ does not maintain or track data on U.S.
Attorneys' participation in Hatch Act partisan
political activities. DOJ officials said that they
are not aware of any violations of Attorney
General restrictions related to the Hatch Act,
since at least January 1995. Also, according to an
Office of Special Counsel2 official, since at
least January 1995, the office had not
investigated any alleged Hatch Act violations by
U.S. Attorneys, their associates, deputies, or
staff.

Regarding issue-oriented political activities,
before May 2000, DOJ rules and policies-as
contained in the U.S. Attorneys' Manual-primarily
addressed U.S. Attorneys' direct interaction with
state and local legislative bodies. For example,
the manual required (and still requires) that U.S.
Attorney Office personnel, including the U.S.
Attorney, obtain DOJ approval before providing
testimony or other information not already
publicly available to a state or local legislative
body. Before May 2000, DOJ rules and policies did
not specifically address media-related or other
public communications. Consequently, according to
DOJ officials, U.S. Attorneys had considerable
independent authority or autonomy and wide
latitude to make public comments on matters of
state or local jurisdiction, as long as their
position was consistent with that of the
administration and DOJ.

In May 2000, DOJ revised the U.S. Attorneys'
Manual to provide additional guidance and
oversight related to public communications. For
example, one revision requires U.S. Attorney
Office personnel, including the U.S. Attorney, to
obtain DOJ's approval before advocating passage or
defeat of state or local legislation, including
state or local referenda or ballot initiatives.
Also, a new section to the manual-incorporating
advice that previously had been given
orally-discusses the need to be sensitive to
comity considerations, such as the public
perception or appearance of the proper role and
limits of federal prosecutors and the need to give
due deference to the separate constitutional
powers and responsibilities of state and local
officials.

Before January 2000, DOJ did not maintain or track
data on the issue-oriented political activities of
U.S. Attorneys at the state or local level. DOJ
began to track U.S. Attorney Office inquiries
related to such activities in January 2000. DOJ's
summaries of inquiries show that from January 19,
2000, to March 22, 2000, U.S. Attorney Offices
contacted DOJ nine times for advice and/or
approval regarding activities that involved or
could potentially involve state or local
legislative matters. DOJ officials said that four
of the nine inquiries were related to activities
that required prior DOJ approval under the then-
current U.S. Attorneys' Manual (e.g., testimony
before a state legislative body) and would also
have required prior DOJ approval under the May
2000 revisions to the manual. Since other types of
U.S. Attorney Office activities did not require
prior DOJ approval at that time (e.g., advocating
passage or defeat of state or local legislation),
the extent and nature of such activities were
largely unknown. According to DOJ officials,
beginning in May 2000, all activities that require
prior DOJ approval under the revised U.S.
Attorneys' Manual will be tracked.

Over the years, Congress has imposed various
restrictions on the use of federal funds for
certain political activities. The restrictions
applicable to DOJ, in general, have been construed
to prohibit (1) grass-roots lobbying in the form
of agency appeals to the public to contact Members
of Congress in support of or in opposition to
pending legislation; (2) publicity of a nature
tending to emphasize an agency's own importance
(i.e., self-aggrandizement); and (3) covert
propaganda activities, such as editorials or other
materials prepared by an agency and circulated as
the ostensible position of parties outside the
agency. Such provisions have not been interpreted
to prohibit an agency's legitimate informational
activities. Public officials may report on the
activities and programs of their agencies, may
justify those policies to the public, and may
rebut attacks on those policies. Traditionally,
policymaking officials have used government
resources to explain and defend their policies.

Background
U.S. Attorneys serve as the nation's principal
litigators under the direction of the Attorney
General. There are 93 U.S. Attorneys stationed
throughout the United States, Puerto Rico, the
Virgin Islands, Guam, and the Northern Mariana
Islands. U.S. Attorneys are appointed by, and
serve at the discretion of, the President of the
United States, with the advice and consent of the
U.S. Senate. Each U.S. Attorney is the chief
federal law enforcement officer of the United
States within his or her particular jurisdiction.
U.S. Attorneys conduct most of the trial work in
which the United States is a party and have the
following responsibilities:

ï¿½    the prosecution of criminal cases brought by
the federal government,
ï¿½    the prosecution and defense of civil cases in
which the United States is a party, and
ï¿½    the collection of debts owed the federal
government that are administratively
uncollectible.

DOJ's Executive Office for U.S. Attorneys (EOUSA)
provides general executive assistance,
administrative support, and other operational
support to U.S. Attorney Offices, and coordinates
the relationship of other DOJ organizational units
and other federal agencies with U.S. Attorney
Offices.

In 1939, Congress passed the Hatch Act to limit
certain types of political activities of certain
federal employees. The Hatch Act provisions were
premised, in general, on the concept that an
impartial workforce free from political coercion
is essential to the fair and effective operation
of the government. More recently, however, the
Hatch Act Reform Amendments of 1993 (effective
Feb. 4, 1994) generally permit most federal
employees to take an active part in partisan
political management and partisan political
campaigns. While federal employees are still
prohibited from seeking public office in partisan
elections, most employees are free to participate,
while off duty and outside of a federal office, in
the partisan campaigns of the candidates of their
choice. For example, most federal employees are
allowed to participate in the following types of
partisan activities:

ï¿½    campaigning for or against candidates in
partisan elections,
ï¿½    distributing campaign literature in partisan
elections,
ï¿½    attending and being active at political
rallies and meetings,
ï¿½    signing nominating petitions,
ï¿½    assisting in voter registration drives, and
ï¿½    making campaign speeches for candidates in
partisan elections.

Under the Hatch Act Reform Amendments of 1993,
certain DOJ employees (i.e., career members of the
Senior Executive Service and employees of DOJ's
Criminal Division and the Federal Bureau of
Investigation) continue to be subject to greater
statutory restrictions, similar to those imposed
before the 1993 amendments.

As the chief federal law enforcement officers of
the United States within their respective
jurisdiction, U.S. Attorneys coordinate their
activities with state and local law enforcement
officials. U.S. Attorneys have established Law
Enforcement Coordination Committees in an attempt
to (1) move past territorial and jurisdictional
concerns of federal, state, and local law
enforcement entities; (2) open the lines of
communications; and (3) make the most efficient
use of law enforcement resources. Also, since
federal and state laws and jurisdictions may
overlap, coordination and interaction regarding
laws and policies is needed. On occasion, state
and local legislatures and law enforcement
officials request that U.S. Attorneys provide
information or comment on law enforcement issues.

Hatch Act Activities
Since October 1994, the Attorney General has
issued a series of policy memorandums to subject
U.S. Attorneys and other DOJ political appointees
to greater restrictions on partisan political
activities, similar to those imposed by statute
before the Hatch Act Reform Amendments of 1993.
With prior DOJ approval, U.S. Attorneys can
passively attend certain partisan political
events. DOJ does not maintain data on U.S.
Attorney Office requests or DOJ approvals related
to U.S. Attorney participation in such events.

DOJ Policies Related to Hatch Act Activities
In October 1994, the Attorney General issued a
policy memorandum that outlined the specific
restrictions on political participation imposed by
the amended Hatch Act. Also, the Attorney General
used the 1994 memorandum to set forth additional
restrictions on U.S. Attorneys and other political
appointees, similar to those in effect before the
1993 Reform Amendments. According to the Attorney
General, "The need to ensure the appearance and
reality of the neutral enforcement of the law
requires that our appointees be subject to the
additional restrictions . . ."

The 1994 Attorney General memorandum prohibits
U.S. Attorneys and other DOJ political appointees
from taking an active part in partisan political
management or partisan political campaigns. More
specifically, U.S. Attorneys and other DOJ
political appointees may not participate in the
following types of partisan political activities:

ï¿½    distributing campaign literature;
ï¿½    canvassing for votes in support of or in
opposition to a candidate;
ï¿½    endorsing or opposing a candidate in a
political advertisement, broadcast, campaign
literature, or similar material;
ï¿½    serving as an officer of a political party;
ï¿½    addressing a convention, caucus, rally, or
similar gathering; or
ï¿½    actively participating in a fund-raising
activity.

U.S. Attorneys and other DOJ political appointees
may register and vote as they choose and may make
donations to candidates or parties of their choice
(as long as the donations are not used in a
promotional manner).

Since 1994, the Attorney General has issued
additional memorandums to clarify the 1994
memorandum and impose further restrictions on U.S.
Attorneys and other DOJ noncareer appointees.3
Most recently, for instance, an October 1998
Attorney General memorandum imposed restrictions
regarding appearances at public events-including
travel associated with such events-that might be
construed as partisan in nature. For example,
activities that are clearly political, and thus
prohibited, include speaking at party functions
and campaigning for candidates. Active
participation in a fund-raiser is also prohibited
without exception.4

With prior DOJ approval, the 1998 memorandum
permits U.S. Attorneys to passively participate in
certain events (e.g., attend a political fund-
raiser). Prior approval is also required for
activities such as making a speech or grant
announcement in a state shortly before a general
election, primary, or caucus or for attending an
event that may involve appearing with a candidate
for partisan office. When prior approval is
required, U.S. Attorneys and other Senate-
confirmed political appointees must obtain such
approval from the Deputy Attorney General.

The 1998 Attorney General memorandum supplements
and does not supplant the 1994 memorandum. All of
the restrictions set forth in the Attorney
General's 1994 memorandum are still in effect.

According to DOJ officials, in 2000, the Attorney
General plans to issue two memorandums on
political activities; and these memorandums will
supercede all previous memorandums, including the
one from 1994. DOJ officials told us that (1) one
memorandum will be addressed to DOJ career
employees and will list all of the restrictions
that apply to their activities and (2) the other
memorandum will be addressed to DOJ political
appointees, including U.S. Attorneys, and will
list all of the restrictions applicable to their
political activities. The officials noted that the
Attorney General is expected to continue to allow
political appointees to attend fund-raisers and
national political conventions in a passive
capacity with prior approval.

Data on U.S. Attorney Involvement in Hatch Act
Activities
DOJ does not maintain or track data on U.S.
Attorney requests or DOJ approvals related to U.S.
Attorneys' participation in Hatch Act political
activities. According to DOJ officials, there have
been very few U.S. Attorney requests to attend
political fund-raisers or national political
conventions. The officials noted, however, that
more requests are expected later in 2000.

DOJ officials said that they are not aware of any
violations of Attorney General restrictions
related to the Hatch Act, since at least January
1995. Also, according to an Office of Special
Counsel official, since at least January 1995, the
office had not investigated any alleged Hatch Act
violations by U.S. Attorneys, their associates,
deputies, or staff.

Issue-Oriented Political Activities
U.S. Attorney issue-oriented political activities
at the state and local levels are primarily
governed by the U.S. Attorneys' Manual. In May
2000, DOJ revised the manual to specifically cover
public communications on criminal justice matters
or other policy matters that involve state or
local issues. Historically, DOJ has not maintained
or tracked data on issue-oriented political
activities of U.S. Attorneys. In January 2000,
however, DOJ established a system to begin
tracking U.S. Attorney inquiries that seek prior
approval of issue-oriented political activities at
the state and local levels.

Until Recently, DOJ Guidance Did Not Address
Certain Public Communications
The U.S. Attorneys' Manual contains DOJ rules and
policies regarding U.S. Attorneys' participation
in issue-oriented political activities at the
state and local levels, including certain
activities or situations that require prior DOJ
approval. Until revisions were adopted in May
2000, the manual primarily addressed U.S.
Attorneys' participation in legislative hearings
or other direct interactions with state and local
legislative bodies. For example, the manual
required and still requires that state and local
legislative requests to U.S. Attorney Office
personnel for any type of "information, assistance
or testimony" that is not already publicly
available "must be cleared" with DOJ.5 According
to DOJ officials, these requests include
activities such as testifying at a state hearing
or providing opinions or other information on a
state bill being considered.

Before May 2000, the U.S. Attorneys' Manual did
not specifically address media-related or other
public communications on criminal justice matters
or other policy matters that involved state or
local issues. For example, the manual did not
specifically require or encourage U.S. Attorneys
to contact DOJ for advice or approval before
commenting on or advocating (to the public or
media) passage or defeat of state or local
legislation, including referenda or ballot
initiatives. Consequently, according to EOUSA
officials, U.S. Attorneys had considerable
independent authority or autonomy and wide
latitude to publicly comment on state or local
issues, as long as their position was consistent
with the position of the administration and DOJ.

An Example of the Wide Latitude to Comment
Publicly on State or Local Issues
A widely publicized example of U.S. Attorneys'
latitude to comment publicly on state or local
issues occurred in early 1999. More specifically,
U.S. Attorneys in one state publicly opposed a
state proposition that would have allowed
individuals to carry concealed firearms. In
September 1999, DOJ's Office of the Inspector
General issued a report on the U.S. Attorneys'
activities. According to the Inspector General's
report, activities undertaken by a U.S. Attorney
(who is no longer in office) included

ï¿½    drafting and mailing a memorandum/editorial
to 102 newspapers throughout the state summarizing
his opposition to the proposition;
ï¿½    mailing a letter to 709 law enforcement
officers summarizing his opposition to the
proposition;
ï¿½    making 10 to 12 appearances on radio and
television shows and about the same number of
public appearances, which included open debates
with pro-gun advocates and interviews about his
position;
ï¿½    attending public meetings with various groups
where he spoke about his position; and
ï¿½    providing an 800 number to the U.S.
Attorney's Office so law enforcement officials
could ask questions about the impact of the
proposition.

Although the U.S. Attorney sought and obtained DOJ
approval to express his opposition to the
proposition (without discussing the specifics of
what was going to be said or how it was going to
be communicated), DOJ officials stated that the
policies in effect at that time did not obligate
the U.S. Attorney to ask for permission or solicit
DOJ advice before opposing the proposition or
engaging in related activities. An EOUSA
official-after reviewing the published newspaper
editorial and the letter mailed to law enforcement
officers-concluded that these communications were
"ill advised and unwise" but were not illegal or
in violation of any current code.

Recent Revisions to DOJ Guidance on U.S. Attorney
Participation in Issue-Oriented Political
Activities
In May 2000, DOJ revised the U.S. Attorneys'
Manual to provide additional guidance and
oversight regarding U.S. Attorney Office
personnel, including the U.S. Attorney,
involvement in issue-oriented political activities
at the state and local levels. That is, the recent
revisions establish more comprehensive prior-
approval requirements to cover public
communications, such as advocating passage or
defeat of state or local legislation, including
referenda or ballot initiatives. The revisions are
contained in sections 1-8.070, 1-8.075, and 1-
8.080 of the manual.

Section 1-8.070 (State and Local Legislation)
Section 1-8.070 (State and Local Legislation) of
the U.S. Attorneys' Manual was revised to require
that U.S. Attorney Office personnel, including the
U.S. Attorney, obtain DOJ approval before
advocating passage or defeat of state or local
legislation, including referenda or ballot
initiatives.  The revised section reads in part as
follows:6

"USAO [United States Attorney Office] personnel
should not advocate passage or defeat of state or
local legislation, including state or local
referenda or ballot initiatives, without prior
approval to do so by the Department. Each separate
written statement or proposed testimony on pending
state or local legislation or referenda must be
submitted to the Department through CTD [Office of
the Counsel to the Director, EOUSA] for review and
approval."

     According to DOJ officials, section 1-8.070
requires U.S. Attorney Office personnel, including
U.S. Attorneys, to obtain DOJ approval before
advocating an issue-oriented position concerning
state or local legislation either (1) specifically
and directly to a state or local legislative body
or (2) generally in any public communications
(e.g., in public meetings or media contacts).

Section 1-8.075 (Comity Considerations)
Section 1-8.075 (Comity Considerations) of the
U.S. Attorneys' Manual was added-based on advice
that previously had been given orally-to cover the
public perception or appearance of the proper role
and limits of federal prosecutors and the need to
give due deference to the separate constitutional
powers and responsibilities of state and local
officials. The new section reads as follows:

"Whenever you make any public communication on
criminal justice or other policy matters that
touch on local or state concerns, whether you are
required to seek approval or not under USAM [U.S.
Attorneys' Manual] 1-8.070, you should be
sensitive to comity considerations. The substance
and manner of such communications should be
designed to enhance and not impede Federal, state,
local law enforcement relations, be sensitive to
the public appearance of the proper role and
limits of Federal prosecutors, and give due
deference to the separate constitutional powers
and responsibilities of state and local officials.
The substance of any such communication should be
consistent with Department policy in that area, be
distributed in an appropriate fashion, factual in
nature and be based on general law enforcement
concerns, views and experience. For example, in
testifying to a state legislative committee on a
pending state bill, the impact of the proposal on
law enforcement considerations should be addressed
without specifically urging the passage or defeat
of the particular bill that may be under
consideration. Please feel free to consult CTD
[Office of the Counsel to the Director, EOUSA] on
any questions you may have in this regard."

     According to DOJ officials, "public
communication" in section 1-8.075 covers (1)
comments made directly to a state or local
legislative body and (2) comments made to the
public (e.g., during public meetings or media
contacts).

Section 1-8.080 (Legislative Requests or
Proposals)
Section 1-8.080 (Legislative Requests or
Proposals) of the U.S. Attorneys' Manual was
expanded to cover personal proposals or personal
views to the public regarding a legislative
proposal or referendum.  The expanded section
reads in part as follows:

"If any USAO [U.S. Attorney Office] personnel wish
to make a purely personal proposal or offer
personal views on a legislative proposal or
referendum to Congress, a state legislature, local
legislature, or the public that could appear to
reflect on their official duties or Department
responsibilities, they are encouraged to contact
CTD [Office of the Counsel to the Director, EOUSA]
for applicable considerations."

For U.S. Attorneys, however, it is more difficult
to draw a distinction between "official" and
"personal" views, according to representatives of
the Office of the Counsel to the Director, EOUSA.
That is, the representatives said that since U.S.
Attorneys are so closely identified with their
official duties, it is difficult for these
appointees to speak unofficially or to make purely
personal proposals or offer personal views on
issues.

Data on U.S. Attorney Involvement in Issue-
Oriented Activities
Before January 2000, DOJ did not maintain or track
data on the issue-oriented political activities of
U.S. Attorneys at the state or local level.
According to EOUSA officials, the number of U.S.
Attorney Office requests for advice/approval to
get involved in state or local issues usually
increases during an election year (or primary
season) and during the first few months of each
calendar year (since many state legislatures are
in session during that time period). EOUSA
officials estimated that they have historically
received an average of two or three U.S. Attorney
inquiries per month during January through March
and an average of one or no inquiries per month
during the rest of the year.

In January 2000, EOUSA began to track-by saving
and archiving e-mail messages-U.S. Attorney Office
inquiries related to issue-oriented political
activities at the state and local levels. EOUSA
summaries of inquiries show that from January 19,
2000, to March 22, 2000, U.S. Attorney Offices
contacted DOJ nine times for advice and/or
approval regarding activities that involved or
could potentially involve state or local
legislative matters.7 Each of the nine inquiries
was from a different federal judicial district.
According to EOUSA officials, four of the nine
inquiries were related to activities that required
prior DOJ approval under the then-current U.S.
Attorneys' Manual and would also have required
prior DOJ approval under the May 2000 revisions to
the manual. For example, in one federal judicial
district, a state senator asked the U.S. Attorney
or his representative to testify before a state
legislative committee that was conducting hearings
on a proposed hate crimes bill.

EOUSA officials noted that one of the five
inquiries that did not require prior DOJ approval
under the then-current U.S. Attorneys' Manual
would likely have required prior DOJ approval
under the May 2000 revisions to the manual. More
specifically, in one federal judicial district,
the head of the state's drug enforcement agency
asked the U.S. Attorney for his opinion regarding
proposed state legislation that would direct the
state agency to dispense confiscated marijuana for
medical purposes. (The state's voters previously
passed a medical marijuana referendum, which the
U.S. Attorney opposed.) Under the May 2000
revisions to the U.S. Attorneys' Manual, prior DOJ
approval would have been required if the U.S.
Attorney intended to advocate passage or defeat of
the proposed state legislation.

The nine inquiries recorded by EOUSA may not
constitute all issue-oriented political activities
by U.S. Attorneys during the approximately 2-month
period indicated. Because many types of U.S.
Attorney issue-oriented political activities at
the state or local level generally did not require
prior DOJ approval at that time, the extent and
nature of such activities was largely unknown.
For instance, as previously mentioned, until May
2000, U.S. Attorneys were not required to obtain
DOJ approval before taking a public position on
matters of state or local legislative authority,
as long as the position was consistent with that
of the administration and DOJ and did not involve
testimony to a state or local legislature.
According to DOJ officials, beginning in May 2000,
all activities that require prior DOJ approval
under the revised U.S. Attorneys' Manual will be
tracked.

DOJ officials said that, in the past 10 years,
they were aware of only two public controversies
related to the issue-oriented political activities
of U.S. Attorneys at the state or local level.  In
one controversial situation, U.S. Attorneys in one
state publicly opposed a state proposition that
would have allowed individuals to carry concealed
firearms. In the other controversial situation, a
U.S. Attorney publicly opposed a proposed state
bill to legalize certain types of gambling. DOJ
views the relatively few public controversies as
an indication that such activities are not a
widespread problem or concern.

Applicable Restrictions on the Use of Federal
Funds for Political Activities
Over the years, Congress has imposed two types of
restrictions on the use of appropriated funds for
certain types of political activities-one criminal
and the other civil.  First, 18 U.S.C. 1913 makes
the use of appropriated funds to lobby Congress a
criminal offense.  The second type of lobbying
restriction, usually appearing in regular
appropriations acts, is civil in nature and, in
general, prohibits the use of appropriated funds
for certain lobbying activities.

18 U.S.C. 1913 (The Anti-Lobbying Act)
In 1919, Congress enacted what is now 18 U.S.C.
1913, making the use of appropriated funds to
lobby Congress a criminal offense.8 Because 18
U.S.C. 1913 is a criminal statute, DOJ and the
courts are responsible for enforcing it. DOJ has
construed 18 U.S.C. 1913, as it applies to
activities by executive branch employees, to
prohibit the use of appropriated funds for
substantial "grass roots" lobbying campaigns of
telegrams, letters, and other private forms of
communication designed to encourage members of the
public to pressure members of Congress to support
administration or department legislative or
appropriations proposals.9  Section 1913 does not
address activities designed or intended to
influence members of state or local legislative
bodies.

Further, regarding the extent to which 18 U.S.C.
1913 imposes constraints on activities by
executive branch employees that relate to
legislative matters, a 1995 memorandum from DOJ's
Office of Legal Counsel to the Attorney General
and Deputy Attorney General10 provided, in part,
that:

ï¿½    "The Department of Justice consistently has
construed the Anti-Lobbying Act as not limiting
the lobbying activities personally undertaken by
the President, his aides and assistants within the
Executive Office of the President, the Vice
President, cabinet members within their areas of
responsibility, and other Senate-confirmed
officials appointed by the President within their
areas of responsibility."
ï¿½    "Under the Anti-Lobbying Act, government
employees may communicate with the public through
public speeches, appearances and published
writings to support Administration positions . .
."
ï¿½    A "substantial" grass-roots lobbying campaign
is one that involves the expenditure of $50,000 or
more.

Appropriations Act Language
The second type of lobbying restriction, usually
appearing in annual appropriations acts, is civil
in nature and, in general, prohibits the use of
appropriated funds for certain lobbying
activities.  These acts have provided a number of
different standards, with varying degrees of
specificity and coverage.  On occasion, we have
been asked to determine whether certain agency
activity has violated annual appropriations act
lobbying restrictions.

One common form of appropriations act restriction
involved in our decisions prohibits the use of
funds for "publicity or propaganda purposes."  Two
provisions applicable to DOJ for fiscal year 2000,
for example, prohibit the use of appropriated
funds for publicity or propaganda purposes not
authorized by Congress.11  Neither provision
specifies a forum within the United States (e.g.,
Congress and/or state or local legislatures) to
which the restrictions apply. Our decisions have
not addressed the applicability of this type of
provision to activities directed toward state or
local legislative bodies.

We have construed similar language, as it has
appeared in other appropriations acts, as
prohibiting publicity of a nature tending to
emphasize an agency's own importance-which we have
labeled as "self-aggrandizement"-and covert
propaganda activities carried out by covered
agencies. We have defined covert propaganda as
materials such as editorials or other articles
prepared by an agency or its contractors at the
behest of the agency and circulated as the
ostensible position of parties outside the agency.

Such language does not prohibit an agency's
legitimate informational activities. Public
officials may report on the activities and
programs of their agencies, may justify those
policies to the public, and may rebut attacks on
those policies.  We have also held that the
executive branch has a duty to inform the public
regarding government policies and, traditionally,
policymaking officials have used government
resources in explanation and defense of their
policies.

Another version of the appropriations act
restrictions is the restriction on the use of
appropriated funds "for publicity or propaganda
purposes designed to support or defeat pending
legislation." For example, section 627 of the
Treasury and General Government Appropriations
Act, 2000 (P.L. 106-58), as it applies to DOJ,
prohibits the use of funds for publicity or
propaganda purposes designed to support or defeat
legislation pending before Congress.12

We have construed similar "pending legislation"
restrictions, as they have appeared in other
appropriations acts, as applying primarily to
indirect or "grass-roots" lobbying and not to
direct contact with Members of Congress. In other
words, the statute has been interpreted to
prohibit appeals to members of the public,
suggesting that they in turn contact their elected
representatives to indicate support of or
opposition to pending legislation, thereby
expressly or implicitly urging the legislators to
vote in a particular manner.

Our decisions have recognized the legitimate
interests of an agency in communicating with the
public and with legislators regarding its policies
and activities. We have further recognized that if
a given policy or activity is affected by pending
or proposed legislation, any discussion of that
policy or activity by officials will necessarily
refer to such legislation, either explicitly or by
implication, and presumably will be either in
support of or in opposition to it.  Thus, an
interpretation of a "pending legislation" statute
that strictly prohibited expenditures of public
funds for dissemination of views on pending
legislation would preclude virtually any comment
by officials on agency or administration policy or
activities.

As stated earlier, antilobbying provisions contain
a number of different standards, with varying
degrees of specificity and coverage.  For example,
while the section 627 language relates to
legislation pending before Congress and does not
address activities designed to support or defeat
legislation pending before state or local
legislative bodies, appropriations act language
for the Legal Services Corporation prohibits the
use of appropriated funds to assist "attempts to
influence the passage or defeat of any
legislation, constitutional amendment, referendum,
initiative, or any similar procedure of the
Congress or a State or local legislative body."13

In general, with respect to issue-oriented
political activities, the provisions applicable to
DOJ regarding the use of appropriated funds for
certain lobbying activities have been construed to
allow officials to communicate to the public and
with legislators to support and provide
information on administration positions, with the
exception of conduct in the form of grass-roots
lobbying, certain types of publicity (i.e., self-
aggrandizement), and covert propaganda.

According to an EOUSA official, U.S. Attorneys are
entitled to use DOJ time, money, and personnel to
comment or take public positions on state or local
issues when representing the department's position
on issues.

Scope and Methodology
To determine what laws, rules, and policies govern
U.S. Attorneys' involvement in Hatch Act partisan
political activities and issue-oriented political
activities, we interviewed officials from relevant
DOJ component offices-EOUSA, Office of
Intergovernmental Affairs, Office of Legislative
Affairs, Office of Legal Counsel, and Ethics
Office-and reviewed policy memorandums and other
documentation. We also interviewed officials from
the Office of Special Counsel-an independent
federal agency that provides advisory opinions on
Hatch Act matters and investigates allegations of
Hatch Act violations-and reviewed Hatch Act-
related documentation they provided us. Further,
we reviewed Hatch Act provisions, federal
antilobbying laws, and our previous reports and
decisions.

To determine the extent to which U.S. Attorneys
had been involved in Hatch Act partisan political
activities and issue-oriented political
activities, we interviewed DOJ officials and
relied on case summaries they provided us. We also
asked the Office of Special Counsel for
information on Hatch Act violations by U.S.
Attorneys. Further, we interviewed an official
from DOJ's Office of the Inspector General and
reviewed an Inspector General report on the
political activities of two U.S. Attorneys in one
state.

As agreed with your offices, we did not directly
contact all 93 U.S. Attorneys. Rather, based on
geographic proximity to locations of our
headquarters and field office staff, we
interviewed three U.S. Attorneys (District of
Columbia, Northern District of Texas, and Eastern
District of Virginia).  During these contacts, we
obtained each U.S. Attorney's perspectives on
relevant rules and policies regarding Hatch Act
and issue-oriented political activities.

To the extent possible throughout our review, we
tried to supplement or corroborate interview or
testimonial information by obtaining and reviewing
policy and/or actual practice documentation, such
as manuals, reports, letters, and memorandums. We
performed our work from January to May 2000 in
accordance with generally accepted government
auditing standards.

Agency Comments
On June 23, 2000, we provided a draft of this
report for review and comment to DOJ. On July 7,
2000, DOJ's Audit Liaison Office (Justice
Management Division) orally advised us that (1)
the draft report had been reviewed by senior
representatives of DOJ's Executive Office for U.S.
Attorneys and Ethics Office and (2) these
reviewers generally concurred with the substance
of the draft report. DOJ provided technical
comments and clarifications, which have been
incorporated in this report where appropriate.

As agreed with your office, unless you announce
the contents of this report earlier, we plan no
further distribution of this report until 15 days
from the date of this letter.  At that time, we
will send copies of this report to Senator Robert
G. Torricelli, Ranking Minority Member of the
Senate Judiciary's Subcommittee on Administrative
Oversight and the Courts; Senator John F. Kerry,
Ranking Minority Member of the Senate Committee on
Small Business; Senator Orrin Hatch, Chairman, and
Senator Patrick Leahy, Ranking Minority Member,
Senate Judiciary Committee; Representative Henry
Hyde, Chairman, and Representative John Conyers,
Ranking Minority Member, House Judiciary
Committee; the Honorable Janet Reno, Attorney
General; and the Honorable Elaine Kaplan, Special
Counsel. Copies of this report will be made
available to others upon request.

Please contact me on (202) 512-8777 if you or your
staff have any questions about this report. Key
contributors to this assignment were Danny R.
Burton, R. Eric Erdman, Geoffrey R. Hamilton, and
Michael Kassack.

Laurie E. Ekstrand
Director, Administration
 of Justice Issues
_______________________________
1 In 1939, Congress passed the Hatch Act (P.L. 76-
252), which broadly limited many types of partisan
political activities of federal employees.
Several decades later, however, the Hatch Act
Reform Amendments of 1993 (P.L. 103-94) became
effective on February 3, 1994, and permitted most
federal employees to actively participate in
partisan political campaigns, with certain
restrictions. The Hatch Act, as amended, is
codified at 5 U.S.C. sections 7321-7326.
2 The Office of Special Counsel is an independent
federal agency that provides advisory opinions on
Hatch Act matters and investigates allegations of
Hatch Act violations.
3 Appendix I of this report contains the
chronology of Attorney General policy memorandums
related to Hatch Act political activities of U.S.
Attorneys.
4 Active participation includes (1) appearing on
the program, on the dais, or in the receiving line
of a political event or (2) allowing one's name to
be used in connection with the promotion of the
event.
5 Public information that can be provided without
DOJ approval includes (1) administrative
information, such as office locations, operational
hours, address and phone information, the proper
person to contact for different types of matters,
and general procedures; (2) documents that are
already of public court records and not under seal
or otherwise restricted, such as filed
indictments, briefs, etc; (3) news releases or
other materials meant for public distribution; and
(4) the time and place for the next public court
hearing, if already announced.
6 The requirements incorporated into sections 1-
8.070 and 1-8.075, regarding state and local
legislative and other matters, do not apply to the
U.S. Attorney's Office for the District of
Columbia, which has unique jurisdictional
obligations as the local prosecutor for the
District of Columbia.
7 Appendix II of this report presents a summary of
each of the nine inquiries, including a
description of the inquiry, the advice given, and
the ultimate action taken.
8 18 U.S.C. 1913 provides, in pertinent part,
that: "No part of the money appropriated by any
enactment of Congress shall, in the absence of
express authorization by Congress, be used
directly or indirectly to pay for any personal
service, advertisement, telegram, telephone,
letter, printed or written matter, or other
device, intended or designed to influence in any
manner a Member of Congress whether before or
after the introduction of any bill or resolution
proposing such legislation or appropriation; but
this shall not prevent officers or employees of
the United States or of its departments or
agencies from communicating to Members of Congress
on the request of any Member or to Congress,
through the proper official channels, requests for
legislation or appropriations which they deem
necessary for the efficient conduct of the public
business."
9 Memorandum for Dick Thornburgh, Attorney
General, from William P. Barr, Assistant Attorney
General, Office of Legal Counsel, September 28,
1989.
10 Memorandum for the Attorney General and the
Deputy Attorney General from Walter Dellinger,
Assistant Attorney General, Office of Legal
Counsel, April 14, 1995.
11 In DOJ's fiscal year 2000 appropriation (P.L.
106-113), section 601 provides that: "No part of
any appropriation contained in this Act shall be
used for publicity or propaganda purposes not
authorized by Congress." Section 632 of the
Treasury and General Government Appropriations
Act, 2000 (P.L. 106-58), provides that: "No part
of any appropriation contained in this or any
other Act shall be used for publicity or
propaganda purposes within the United States not
heretofore authorized by the Congress."  By virtue
of the "this or any other act" language, this
provision is expressly applicable to
appropriations contained in all appropriations
acts for fiscal year 2000, including those of the
Department of Justice.
12 More specifically, section 627 provides that:
"No part of any funds appropriated in this or any
other Act shall be used by an agency of the
executive branch, other than for normal and
recognized executive-legislative relationships,
for publicity or propaganda purposes, and for the
preparation, distribution or use of any kit,
pamphlet, booklet, publication, radio, television
or film presentation designed to support or defeat
legislation pending before Congress, except in
presentation to the Congress itself." By virtue of
the "this or any other act" language, this
provision is expressly applicable to
appropriations contained in all appropriations
acts for fiscal year 2000, including those of the
Department of Justice.  In construing language
similar to that found in the above section 627, we
have found that such language makes it clear that
the prohibition does not apply to communications
directly to Congress, and that the listing of
specific materials and presentations further
explains what the Congress means by publicity or
propaganda purposes.
13 The Legal Services Corporation's fiscal year
2000 appropriation (P.L. 106-58) incorporates
language providing that: "None of the funds
appropriated in this Act to the Legal Services
Corporation may be used to provide financial
assistance to any person or entity . . . that
attempts to influence the passage or defeat of any
legislation, constitutional amendment, referendum,
initiative, or any similar procedure of the
Congress or a State or local legislative body."

Appendix I
Chronology of Attorney General-Imposed
Restrictions on the Political Activities of U.S.
Attorneys
Page 24GAO/GGD-00-171 Political Activities of U.S.
Attorneys
This appendix presents a chronological summary of
Attorney General-imposed restrictions on the
political activities of U.S. Attorneys. That is,
the appendix briefly discusses the substance of
policy memorandums issued by the Attorney General
in 1994, 1996 (two memorandums), and 1998.  All of
the restrictions set forth in the Attorney
General's 1994 memorandum remain in effect.  The
restrictions in the two 1996 memorandums generally
were incorporated into the 1998 memorandum, which
also established some additional restrictions.
Thus, the 1994 and the 1998 memorandums currently
constitute the Department of Justice's (DOJ) basic
guidance. According to DOJ officials, in 2000, the
Attorney General plans to issue two memorandums on
political activities-one for DOJ career employees
and one for DOJ political appointees-which will
supercede all previous memorandums.

1994 Attorney General Policy Memorandum
In her October 1994 policy memorandum, regarding
restrictions on political activities by DOJ
employees, the Attorney General stated the
following:

"As employees of the Department of Justice, we
have been entrusted with the authority to enforce
the laws of the United States, and with the
responsibility to do so in a neutral and impartial
manner. For the public to retain its confidence
that we are adhering to our responsibility, we
must ensure that politics-both in fact and in
appearance-does not compromise the integrity of
our work."

The 1994 memorandum (1) outlined statutory
restrictions on political activities that are
applicable to all DOJ employees and (2) set forth
additional Attorney General-imposed restrictions
that are applicable to U.S. Attorneys and other
political appointees.

Statutory Restrictions Applicable to All DOJ
Employees
Although the Hatch Act Reform Amendments of 1993
permit most federal employees to take an active
part in partisan political management and partisan
political campaigns, certain statutory
restrictions remain in effect. The Attorney
General's 1994 policy memorandum outlined
statutory restrictions on political activities
that are applicable to all DOJ employees. More
specifically, the memorandum noted that DOJ
employees may not do the following:

ï¿½    use their official authority or influence to
interfere with or affect the result of an
election, 5 U.S.C. 7323 (a) (1);
ï¿½    solicit, accept, or receive a political
contribution, 5 U.S.C. 7323(a) (2), except for a
political contribution to a multicandidate
political committee from a fellow member of a
federal labor organization or certain other
employee organizations, as long as the solicited
employee is not a subordinate and the activity
does not violate the provision below related to
"engaging" in political activity;
ï¿½    solicit, accept, or receive uncompensated
volunteer services from an individual who is a
subordinate, 5 C.F.R. 734.303(d);
ï¿½    allow their official titles to be used in
connection with fund-raiser activities, 5 C.F.R.
734.303(c);
ï¿½    run for nomination or election to public
office in a partisan election, 5 U.S.C. 7323(a)
(3);1
ï¿½    solicit or discourage the political activity
of any person who is a participant in any matter
before the department, 5 U.S.C. 7323(a) (4);
ï¿½    engage in political activity (to include
wearing political buttons) while on duty, while in
a government-occupied office or building, while
wearing an official uniform or insignia, or while
using a government vehicle, 5 U.S.C. 7324(a); or
ï¿½    make a political contribution to their
employer or employing authority, 18 U.S.C. 603.

The statutory restrictions applicable to all DOJ
employees are also contained in the U.S.
Attorneys' Manual.

Additional Restrictions Applicable to U.S.
Attorneys
     Under the Hatch Act Reform Amendments of
1993, certain DOJ employees (i.e., career members
of the Senior Executive Service and employees of
DOJ's Criminal Division and the Federal Bureau of
Investigation) continue to be subject to greater
statutory restrictions, similar to those that were
imposed by statute on all federal employees before
the 1993 amendments. The Attorney General
determined, as a policy matter, that DOJ should
continue its practice of imposing these kinds of
additional restrictions on U.S. Attorneys and
other political appointees.2 According to the
Attorney General, "The need to ensure the
appearance and reality of the neutral enforcement
of the law requires that our appointees be subject
to additional restrictions . . ."

     The Attorney General's 1994 policy memorandum
set forth the additional restrictions on U.S.
Attorneys and other political appointees. More
specifically, political appointees may not do such
things as

ï¿½    distribute fliers printed by a candidate's
campaign committee, a political party, or a
partisan political group;
ï¿½    serve as an officer of a political party; a
member of a national, state, or local committee of
a political party; an officer or member of a
committee of a partisan political group; or be a
candidate for any of these positions;
ï¿½    organize or reorganize a political party
organization or partisan political group;
ï¿½    serve as a delegate, alternate, or proxy to a
political party convention;
ï¿½    address a convention, caucus, rally, or
similar gathering of a political party or partisan
political group in support of or in opposition to
a candidate for partisan political office or
political party office, if such address is done in
concert with such a candidate, political party, or
partisan political group;
ï¿½    organize, sell tickets to, promote, or
actively participate in a fund-raising activity of
a candidate for partisan political office or of a
political party or partisan political group;
ï¿½    canvass for votes in support of or in
opposition to a candidate for partisan political
office or a candidate for political party office,
if such canvassing is done in concert with such a
candidate, political party, or partisan political
group;
ï¿½    endorse or oppose a candidate for partisan
political office or a candidate for political
party office in a political advertisement,
broadcast, campaign literature, or similar
material if such endorsement or opposition is done
in concert with such a candidate, political party,
or partisan political group;
ï¿½    initiate or circulate a partisan nominating
petition; and
ï¿½    act as recorder, watcher, challenger, or
similar officer at polling places in consultation
or coordination with a political party, partisan
political group, or a candidate for partisan
political office.

The Attorney General's additional restrictions
applicable to all political appointees are also
contained in the U.S. Attorneys' Manual.

1996 Attorney General Policy Memorandums
In 1996, the Attorney General issued two
memorandums to all DOJ political appointees (i.e.,
senate-confirmed presidential appointees,
presidential appointees, noncareer members of the
Senior Executive Service, and Schedule C
appointees) further restricting their political
activities.

February 1996 Memorandum
First, in February 1996, the Attorney General
issued a memorandum that required all noncareer
employees (including U.S. Attorneys) to seek prior
approval for any public activities-including any
travel associated with such activities-that might
be construed as partisan in nature (e.g.,
attending political fund-raisers or national party
conventions). According to the Attorney General,
in determining whether an activity is political or
official, all relevant factors should be
considered, including, but not limited to, the
identity of the sponsor of the event, the group,
or organization being addressed; other
participants; and whether the speech being
delivered is partisan and political in nature or
DOJ's position on matters for which DOJ is
responsible.  The Attorney General advised that
noncareer employees should be particularly
cautious if an event calls for an appearance with
an individual who is actively engaged in seeking
elective office. U.S. Attorneys were to obtain
approval from the Deputy Attorney General.

July 1996 Memorandum
In July 1996, the Attorney General issued a
memorandum that prohibited U.S. Attorneys and
other senate-confirmed presidential appointees
from attending partisan political fund-raisers.
This policy did not, however, prohibit those
officials from making donations to candidates or
parties of their choice (as long as the donations
are not used in a promotional manner). The
Attorney General also noted that absent special
circumstances, approval will not be granted for
senate-confirmed presidential appointees to attend
national political conventions.

1998 Attorney General Policy Memorandum
The restrictions in the two 1996 memorandums
generally were incorporated into the Attorney
General's 1998 memorandum, which also established
some additional restrictions.  That is, the
October 1998 Attorney General's memorandum imposed
additional restrictions on noncareer appointees
(including U.S. Attorneys), regarding appearances
at public events-including travel associated with
such events-that might be construed as partisan in
nature. Activities that are clearly political and
thus prohibited include speaking at party
functions or campaigning for candidates. Active
participation in a fund-raiser is also prohibited
without exception.3

U.S. Attorneys and other senate-confirmed
presidential appointees must obtain DOJ approval
before attending a political fund-raising event in
a passive capacity. Prior approval is also
required for activities such as making a speech or
grant announcement in a state shortly before a
general election, primary, or caucus or before
attending an event that may involve appearing with
a candidate for partisan office. U.S. Attorneys
and other senate-confirmed presidential appointees
must obtain approval from the Deputy Attorney
General.

2000 Attorney General Policy Memorandums
According to DOJ officials, in 2000, the Attorney
General plans to issue two memorandums on
political activities, and these memorandums will
supercede all previous memorandums, including the
one from 1994. DOJ officials told us that (1) one
memorandum will be addressed to DOJ career
employees and will list all of the restrictions
that apply to their activities and (2) the other
memorandum will be addressed to DOJ political
appointees, including U.S. Attorneys, and will
list all of the restrictions applicable to their
political activities. The officials noted that the
Attorney General is expected to continue to allow
political appointees to attend fund-raisers and
national political conventions in a passive
capacity with prior approval.

_______________________________
1 In certain designated communities, including
Washington, D.C., and its suburbs, an employee may
run for office in a local partisan election (but
only as an independent candidate) and may receive,
but not solicit, contributions, 5 U.S.C. 7325.
2 Political appointees include all presidential
appointees, senate-confirmed presidential
appointees, noncareer members of the Senior
Executive Service, and Schedule C appointees.
3 Active participation includes (1) appearing on
the program, on the dais, or in the receiving line
of a political event or (2) the participant
allowing his/her name to be used in connection
with the promotion of the event.

Appendix II
U.S. Attorney Office Inquiries to DOJ Regarding
Issue-Oriented Political Activities
Page 28GAO/GGD-00-171 Political Activities of U.S.
Attorneys
From January 19, 2000, to March 22, 2000, U.S.
Attorney Offices contacted DOJ's Executive Office
for U.S. Attorneys (EOUSA) nine times for advice
and/or approval regarding activities that involved
or could potentially involve state or local
legislative matters. This appendix presents EOUSA
summaries of the nine U.S. Attorney Office
inquiries.

Four Inquiries Required DOJ Approval
According to EOUSA officials, four of the nine
U.S. Attorney Office inquiries were related to
activities that required prior DOJ approval under
the then-current U.S. Attorneys' Manual and would
also have required prior DOJ approval under the
May 2000 revisions to the manual. The four
inquiries were received from U.S. Attorney Offices
in four separate federal judicial districts. A
brief summary of each inquiry is presented in the
following sections.

Inquiry No. 1
Description of the inquiry: The U.S. Attorney was
asked to endorse gun control legislation pending
in a state legislature.

Advice given: In conformance with DOJ's usual
practice to avoid, on comity grounds, direct
statements of support or opposition to specific
state bills, the U.S. Attorney and DOJ agreed that
endorsement of the pending legislation would be
inappropriate.

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

Inquiry No. 2
Description of the inquiry: The U.S. Attorney
Office sought authorization to testify concerning
the federal perspective on proposed state
legislation involving alcohol-related driving
offenses. The testimony purportedly would help to
resolve an inconsistency in the proposed state
legislation-that is, to address a situation
regarding one location in the state where persons
arrested for alcohol-related driving offenses
would not have points assessed on their drivers'
licenses.

Advice given: If the U.S. Attorney is invited to
testify, DOJ will review the pending legislation
and the proposed testimony.

Ultimate action: Pending at the time of our
review.

Inquiry No. 3
Description of the inquiry: A state senator asked
the U.S. Attorney or his representative to testify
before a state legislative committee conducting
hearings on a proposed hate crimes bill. The
prospective testimony of the U.S.
Attorney-consistent with the position the office
took at a community hate crimes symposium in
1999-supports the idea of strong hate crimes
legislation, without committing to a specific
bill.

Advice given: It is appropriate to testify on the
hate crimes problem generally and the need for
aggressive enforcement and effective legislation,
without commenting on specific state legislation.

Ultimate action: Testimony was offered.

Inquiry No. 4
Description of the inquiry: The U.S. Attorney was
asked to testify before the Criminal Justice
Committee of the state legislature concerning
federal enforcement in the area of illegal
enticement of children via the Internet. The U.S.
Attorney would not be asked to comment on
potential state legislation in this area and would
discuss only federal enforcement efforts and
factual matters pertaining to the federal criminal
justice system.

Advice given: DOJ officials concurred that the
U.S. Attorney's appearance before the state
legislature to discuss this topic strictly from
the federal enforcement perspective would be
appropriate.

Ultimate action: The U.S. Attorney testified.

Five Inquiries Did Not Require DOJ Approval
According to EOUSA officials, five of the nine
U.S. Attorney Office inquiries were related to
activities that did not require prior DOJ approval
under the then-current U.S. Attorneys' Manual. The
five inquiries were received from U.S. Attorney
Offices in five separate federal judicial
districts. Also, these five districts did not
include any of the four districts discussed above.

EOUSA officials said that although the five
inquiries in this category related to activities
that involved or could potentially involve state
legislative matters, at the time the inquiries
were made, the activities did not involve
providing testimony or other assistance directly
to a state legislative body. Therefore, EOUSA
officials concluded that the activities did not
require prior DOJ approval under the then-current
U.S. Attorneys' Manual. The officials noted that
one of the five inquiries (see inquiry no. 4
below) related to activities that would likely
have required prior DOJ approval under the May
2000 revisions to the manual. A brief summary of
each inquiry is presented in the following
sections.

Inquiry No. 1
Description of the inquiry: The American Civil
Liberties Union and the Urban League asked the
U.S. Attorney to attend a meeting on racial
profiling for the specific purpose of "demanding"
that the state's governor sign a state bill that
would require law enforcement officers to collect
data regarding the race and ethnicity of persons
stopped and searched.

Advice given: Maintaining the appropriate
appearance of neutrality during an apparently
partisan session on state legislation would be
extremely difficult, and it was therefore
recommended that the U.S. Attorney decline the
invitation to attend.

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

Inquiry No. 2
Description of the inquiry: The state's governor
sought to appoint an Assistant U.S. Attorney as
one of seven members of the state's Fair
Employment and Housing Commission, which meets
four times annually to render decisions on
employment and fair housing complaints. The
commission also issues or reviews proposed state
regulations to implement antidiscrimination
statutes, and reviews proposed antidiscrimination
legislation.

Advice given: Participation by an Assistant U.S.
Attorney on a state board that renders decisions,
rather than acting strictly as an advisory body,
is inadvisable because it raises a comity
question. The Assistant U.S. Attorney would be
acting as a state functionary while holding a
federal office. There is also the question of the
propriety of rendering independent decisions in
the civil rights area where federal and state
enforcement roles are distinct.

Ultimate action: The offer was declined.

Inquiry No. 3
Description of the inquiry: A city mayor asked the
U.S. Attorney to play a role in a gun violence
reduction initiative. That is, the mayor asked the
U.S. Attorney to participate with a state
prosecutor in a gathering of local mayors to
formulate a zero-tolerance firearms enforcement
policy.

Advice given: It was advised that participation by
the U.S. Attorney be limited to law enforcement
issues and that any appearance of involvement in
local political matters be strictly avoided.

Ultimate action: Participation was approved.

Inquiry No. 4
Description of the inquiry: The head of the
state's drug enforcement agency asked the U.S.
Attorney for his opinion regarding proposed state
legislation that would direct the state agency to
disperse confiscated marijuana for medical
purposes. The state's voters previously passed a
medical marijuana referendum, which the U.S.
Attorney opposed. Under current federal law, it
would be a crime for the agency to disperse
marijuana.

Advice given: It is proper for a U.S. Attorney to
relay DOJ's position on an issue if asked by a
state official. In this case, the position is that
marijuana distribution is still illegal under
federal law, notwithstanding what occurs in a
specific state.

Ultimate action: The U.S. Attorney has relayed
DOJ's position to the state's drug enforcement
agency.

Inquiry No. 5
Description of the inquiry: The state legislature
asked the U.S. Attorney to serve in his official
capacity on a task force or commission being
created to study proposals to reduce mandatory
minimum sentences for drug users and to exempt
some convicted criminals from having to disclose
their offenses to potential employers. The
commission's study could result in recommendations
for changes in state laws.

Advice given: The U.S. Attorney was advised not to
accept the appointment; however, the U.S. Attorney
was also advised that he could answer questions
based on law enforcement experience, as long as he
did not address specific state legislation.

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

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