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Special Counsel Investigations: History, Authority, Appointment and Removal [Updated March 13, 2019]
From the Document: "The Constitution vests Congress with the legislative power, which includes authority to establish federal agencies and conduct oversight of those entities. Criminal investigations and prosecutions, however, are generally regarded as core executive functions assigned to the executive branch. Because of the potential conflicts of interest that may arise when the executive branch investigates itself, there have often been calls for criminal investigations by prosecutors with independence from the executive branch. In response, Congress and the U.S. Department of Justice (DOJ) have used both statutory and regulatory mechanisms to establish a process for such inquiries. These frameworks have aimed to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials."
Library of Congress. Congressional Research Service
Brown, Cynthia; Cole, Jared P.
2019-03-13
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Special Counsel's Report: What Do Current DOJ Regulations Require? [March 7, 2019]
From the Document: "In light of media reports that Special Counsel Robert S. Mueller III is close to concluding his investigation of Russian interference in the 2016 election, the extent to which the findings and conclusions of the Special Counsel's investigation will be released to Congress and the public after being submitted to the Attorney General has attracted attention. [...] Some Members of Congress have proposed legislation to ensure that certain information related to the Special Counsel's investigation is made available to Congress and the public. This Sidebar examines the current legal obligations of the Special Counsel and Attorney General to report information relating to the investigation to Congress and the public. It also provides historical examples of reports issued for other such investigations. A companion Sidebar addresses potential legal issues that may arise if Congress seeks to compel release of information about the investigation, including issues involving executive privilege and the publication of grand jury information."
Library of Congress. Congressional Research Service
Brown, Cynthia
2019-03-07
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Executive Branch Ethics and Financial Conflicts of Interest: Disqualification [January 31, 2019]
From the Document: "Newly proposed legislation in the 116th Congress concerns government ethics reform, including conflicts of interest among executive branch officials. Federal officials have a basic duty not to allow private gain to influence their government service, which includes 'not hold[ing] financial interests that conflict with the conscientious performance of duty.' Federal statutes, as well as a code of conduct for executive branch employees, make this principle part of a federal regulatory scheme intended to prevent officials from benefiting personally from their offices. The current federal statutory scheme regulating conflicts between an official's personal financial interests and his or her official duties has three prongs: disclosure, disqualification, and divestiture (i.e., a 3-D system). This discussion of the disqualification requirement, also known as recusal, is the second in a three-part series examining conflicts of interest in the executive branch."
Library of Congress. Congressional Research Service
Brown, Cynthia
2019-01-31
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Executive Branch Ethics and Financial Conflicts of Interest: Disclosure [January 2, 2019]
From the Document: "Recent media reports indicate that the 116th Congress may address government ethics reform, including conflicts of interest among executive branch officials. Federal officials have a basic duty not to allow private gain to influence their government service, which includes 'not hold[ing] financial interests that conflict with the conscientious performance of duty.' Federal statutes, as well as a code of conduct for executive branch employees, make this principle part of a federal regulatory scheme intended to prevent officials from benefitting personally from their offices. The current federal statutory scheme regulating conflicts between an official's personal financial interests and his or her official duties has three prongs: disclosure, disqualification, and divestiture (i.e., a '3-D system'). This sidebar is the first in a three-part series examining conflicts of interest in the executive branch."
Library of Congress. Congressional Research Service
Brown, Cynthia
2019-01-02
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Special Counsel Investigation After the Attorney General's Resignation [January 2, 2019]
"Recent Department of Justice (DOJ) leadership changes have raised questions about their impact on the special counsel investigation into Russian interference with the 2016 presidential election and related matters. Who will oversee the investigation? How do personnel changes affect the investigation? What are Congress's possible roles in this matter? Before his resignation, former Attorney General Jeff Sessions had recused himself from the inquiry with Deputy Attorney General Rod Rosenstein serving as Acting Attorney General for the investigation. With President Trump's designation of Matthew G. Whitaker as Acting Attorney General pending Senate consideration of his nominee for Attorney General, supervision of the special counsel investigation may change in the coming months, possibly impacting ongoing litigation regarding the special counsel's authority. This Sidebar examines how DOJ leadership changes may interplay with the special counsel investigation."
Library of Congress. Congressional Research Service
Brown, Cynthia
2019-01-02
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Calling Balls and Strikes: Ethics and Supreme Court Justices [August 20, 2018]
"At his confirmation hearing in 2005, Chief Justice Roberts famously described his view of judges as umpires, pledging that, if confirmed, he would 'call balls and strikes' when applying the law. Chief Justice Roberts emphasized the constitutional structure that underpins the Supreme Court and the rest of the federal judiciary, which is based on independence from political influence. The Court's independence and its insulation from political influence is a perennial issue, which has received heightened attention with Judge Brett Kavanaugh's pending nomination. What mechanisms ensure the integrity of Justices as federal officials? Are Justices subject to any rules of ethical conduct? How might such ethics rules be enforced? This Sidebar examines these questions and Congress's potential role in regulating the ethics of the Supreme Court Justices."
Library of Congress. Congressional Research Service
Brown, Cynthia
2018-08-20
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Advising the President: Rules Governing Access and Accountability of Presidential Advisors [August 6, 2018]
"Media reports have raised questions regarding the extent to which federal ethics laws and regulations apply to Presidential advisors. Article II of the U.S. Constitution vests the President with broad authority to appoint advisors to key posts in the executive branch. The Constitution simultaneously imposes a check on the influence of these unelected advisors by requiring, in certain cases, Senate confirmation of a President's nominee. However, the President appoints certain officers and employees without such approval, including those in White House roles or within the Executive Office of the President (EOP). Furthermore, Presidents also have relied upon individuals working outside the government to assist the Administration as 'special advisors,' whether through formal roles on advisory committees or as informal advisors to the President directly."
Library of Congress. Congressional Research Service
Brown, Cynthia
2018-08-06
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Special Counsels, Independent Counsels, and Special Prosecutors: Legal Authority and Limitations on Independent Executive Investigations [April 13, 2018]
"The Constitution vests Congress with the legislative power, which includes authority to establish federal agencies and conduct oversight of those entities. Criminal investigations and prosecutions, however, are generally regarded as core executive functions assigned to the executive branch. Because of the potential conflicts of interest that may arise when the executive branch investigates itself, there have often been calls for criminal investigations by prosecutors with independence from the executive branch. In response, Congress and the U.S. Department of Justice (DOJ) have used both statutory and regulatory mechanisms to establish a process for such inquiries. These frameworks have aimed to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials."
Library of Congress. Congressional Research Service
Cole, Jared P.; Brown, Cynthia
2018-04-13
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House Judiciary to Mark Up H.R. 4170, the Disclosing Foreign Influence Act [January 16, 2018]
"The House Judiciary Committee has announced that it will hold a full committee markup hearing on Wednesday, January 17 for H.R. 4170, the Disclosing Foreign Influence Act (DFIA). The bill, which has a companion measure in the Senate (S. 2039), would amend the Foreign Agents Registration Act of 1938 (FARA). Congress originally enacted FARA in 1938 to promote transparency with respect to foreign propaganda, but subsequent amendments have evolved its breadth and application to focus on transparency of lobbying activities undertaken on behalf of a foreign client. However, in recent years, internal investigations by the Department of Justice (which has the authority to enforce FARA), congressional hearings, and media reports have highlighted the lack of enforcement of FARA's requirements, leading to the introduction of proposals such as H.R. 4170. This posting discusses the framework of the current provisions in effect under FARA and examines the proposed changes that have been introduced under H.R. 4170/S. 2039, the Disclosing Foreign Influence Act (DFIA)."
Library of Congress. Congressional Research Service
Brown, Cynthia
2018-01-16
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Expulsion of Members of Congress: Legal Authority and Historical Practice [January 11, 2018]
"This report discusses the nature of the power of Congress to remove a Member, including the historical background of the Clause, the implications of the limited judicial interpretations of the Clause's meaning, and other potential constitutional limitations in the exercise of the expulsion power. The report then analyzes the potential grounds upon which a Member might be expelled, including an overview of past cases resulting in expulsion and a discussion of the potential exercise of the expulsion power for conduct occurring prior to the Member's election or reelection to Congress."
Library of Congress. Congressional Research Service
Brown, Cynthia; Garvey, Todd
2018-01-11
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Foreign Agents Registration Act (FARA): A Legal Overview [December 4, 2017]
"In the wake of the 2016 election, concerns have been raised with respect to the legal regime governing foreign influence in domestic politics. The central law concerning the activities of the agents of foreign entities acting in the United States is the Foreign Agents Registration Act (FARA or Act). [...] In 2016, the Office of the Inspector General at the Department of Justice (DOJ) issued a report on DOJ's enforcement of FARA, finding that the department lacked a comprehensive strategy for enforcement. [...] This report examines the nature and scope of the current regulatory scheme, including the scope of FARA's application to agents of foreign principals; what the statute requires of those covered under the Act; exemptions available under the statute; and methods of enforcement."
Library of Congress. Congressional Research Service
Brown, Cynthia
2017-12-04
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Supreme Court October Term 2016: A Review of Select Major Rulings [September 15, 2017]
"The Supreme Court term that began on October 3, 2016, was notably different from recent terms at the High Court. It was the first term (1) in thirty years to begin without Justice Antonin Scalia on the Court; (2) since 1987 to commence with a Court made up of fewer than nine active Justices; and (3) since 2010 in which a new member (Justice Neil Gorsuch) joined the High Court. Court observers have suggested that the lack of a fully staffed Supreme Court for the bulk of the last term likely had an impact on the Court's work both with regard to the volume of cases that the Court heard and the nature of those cases. The Court issued seventy written opinions during the October 2016 term and heard oral arguments in sixty-four cases, numbers that constitute the lightest docket for the Court since at least the Civil War era. Moreover, unlike in recent terms where the Court issued opinions on matters related to abortion and affirmative action, the Court's docket for the October 2016 term had comparatively very few high-profile issues."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brown, Cynthia; Garcia, Michael John . . .
2017-09-15
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Special Counsels, Independent Counsels, and Special Prosecutors: Options for Independent Executive Investigations [June 1, 2017]
"Under the Constitution, Congress has no direct role in federal law enforcement and its ability to initiate appointments of any prosecutors to address alleged wrongdoings by executive officials is limited. While Congress retains broad oversight and investigatory powers under Article I of the Constitution, criminal investigations and prosecutions have generally been viewed as a core executive function and a responsibility of the executive branch. Historically, however, because of the potential conflicts of interest that may arise when the executive branch investigates itself (e.g., the Watergate investigation), there have been calls for an independently led inquiry to determine whether officials have violated criminal law. In response, Congress and the U.S. Department of Justice (DOJ) have used both statutory and regulatory mechanisms to establish a process for such inquiries. These responses have attempted, in different ways, to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials. [...] Ultimately, under the previous statutory authorization for independent counsel appointments or under the existing regulatory authority to appoint special counsels, the Attorney General holds the sole authority to initiate the appointment for such investigations and prosecutions. However, other alternatives of investigation and oversight of actions by federal officials--whose methods are beyond the scope of this report--are available, such as inspector general investigations and congressional oversight investigations."
Library of Congress. Congressional Research Service
Brown, Cynthia
2017-06-01
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Free Exercise of Religion by Closely Held Corporations: Implications of 'Burwell v. Hobby Lobby Stores, Inc.' [November 12, 2015]
"A 5-4 decision, issued over a highly critical dissent, Burwell v. Hobby Lobby Stores, Inc. resolved one of the many challenges raised in response to the contraceptive coverage requirement of the Affordable Care Act (ACA). Imputing the beliefs of owners of closely held corporations to such corporations, the U.S. Supreme Court found that closely held corporations that hold religious objections to certain contraceptive services cannot be required to provide coverage of those services in employee health plans. The Court's decision was based on the protections offered under the federal Religious Freedom Restoration Act (RFRA), a statute prohibiting the government from imposing a substantial burden on a person's religious exercise unless it can show a compelling interest achieved by the least restrictive means. The Court declined to address the constitutional challenge, holding that the companies were protected under RFRA. […] This report analyzes the Court's decision in Hobby Lobby, including arguments made between the majority and dissent, to clarify the scope of the decision and potential impacts for future interpretation of RFRA's applicability. It also examines potential legislative responses, should Congress consider addressing the current applicability of RFRA. Finally, the report addresses the decision's effect on requirements that employers offer contraceptive coverage in group health plans under federal or state law."
Library of Congress. Congressional Research Service
Brown, Cynthia
2015-11-12
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Recognition of Same-Sex Marriage: Implications for Religious Objections [October 23, 2015]
"The U.S. Supreme Court's landmark decision in 'Obergefell v. Hodges' in June 2015 held that the Fourteenth Amendment of the U.S. Constitution required states to issue marriage licenses to same-sex couples and to recognize same-sex marriages formed in other states. The Court's decision in 'Obergefell' does not directly address incidental claims related to religious freedom in the context of same-sex marriage. However, the case has generated a number of other questions regarding potential implications of the Court's decision, particularly with respect to the rights of individuals or entities with religious objections to same-sex marriage. Among the issues raised are the obligation of marriage officiants to perform or facilitate same-sex marriage ceremonies; civil rights protections for same-sex couples and religious objectors; potential protections for religious social service providers in federally funded programs; and the impact on tax-exempt status of religious entities that object to same-sex marriage. […] Questions related to the solemnization of same-sex marriages involve whether individuals who serve as marriage officiants, either in religious or civil ceremonies, would be required to solemnize marriages to which they object. Although long-standing Supreme Court jurisprudence indicates that religious officiants would be protected under the First Amendment, the protections available to civil servants whose duties include issuing state marriage licenses or officiating at civil ceremonies are not as straightforward, and may depend on a number of other factors."
Library of Congress. Congressional Research Service
Brown, Cynthia; Lunder, Erika
2015-10-23
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Federal Aid for Reconstruction of Houses of Worship: A Legal Analysis [October 19, 2015]
From the Introduction: "In late October 2012, Hurricane Sandy struck the East Coast of the United States, causing severe damage to the mid-Atlantic and northeast regions of the country. The resulting destruction led to major disaster declarations in 12 states and the District of Columbia, making those states eligible for certain supplemental federal assistance to aid in the recovery process. The damage resulting from Hurricane Sandy devastated a wide range of communities and, as a result, many individuals and organizations sought federal assistance for recovery, including churches, which, in turn, raised constitutional concerns regarding the provision of federal assistance to religious organizations. Congressional interest in these issues has continued in the subsequent years. This report examines the constitutional rules governing federal funding for religious buildings and analyzes the Court's previous decisions on this issue. It also analyzes more recent lower court and administrative opinions that have distinguished the Court's decisions and allowed public funds to be awarded to houses of worship. Finally, the report discusses examples in which Congress has proposed or provided funding related to the construction and maintenance of religious buildings, including H.R. 3066, which would authorize the Federal Emergency Management Agency (FEMA) to provide disaster recovery assistance to houses of worship and other buildings operated by religious organizations."
Library of Congress. Congressional Research Service
Brown, Cynthia
2015-10-19
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California Drought: Hydrological and Regulatory Water Supply Issues [August 14, 2015]
"California is in its fourth year of drought. As of late July 2015, 47% of California was experiencing exceptional drought--the most severe U.S. federal drought classification--and approximately 71% of the state was experiencing extreme drought. The 2014 water year (October 2013 through September 2014) was the third driest on record. Water users that receive water supplies from the state of California and federal water projects are experiencing unprecedented water supply shortages due to the drought. Severe water supply shortages also hampered the state during a recent three-year drought (2008-2010). Paleontological and tree-ring records indicate that California has experienced many multiyear droughts over several millennia; however, some experts estimate that the current drought may be the most severe in the past 1,200 years. This report focuses on hydrological and regulatory compliance issues that affect operation and management of two large water supply projects that serve farms and communities throughout California: the federal Central Valley Project (CVP), owned and operated by the Bureau of Reclamation (Reclamation) in the Department of the Interior, and the State Water Project (SWP), owned and operated by the California Department of Water Resources (DWR). Reductions in water supplied by these projects in drought years result in economic disruption across the state such as concentrated crop and financial losses in agricultural areas throughout the Central Valley, including portions of the San Joaquin Valley. At the same time, several fish species--one of which may be close to extinction--whose habitat lies at the heart of California's water supply system and throughout its northern rivers are in decline. Declining fish species, exacerbated by drought, also may have economic implications, resulting in job and income losses in coastal areas. In addition, the drought and low water supplies affect recreation, power production, other industries, and small and large communities."
Library of Congress. Congressional Research Service
Cody, Betsy A.; Folger, Peter (Peter Franklin); Brown, Cynthia
2015-08-14
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Free Exercise of Religion by Closely Held Corporations: Implications of 'Burwell v. Hobby Lobby Stores, Inc' [April 6, 2015]
"A 5-4 decision, issued over a highly critical dissent, Burwell v. Hobby Lobby Stores, Inc. resolved one of the many challenges raised in response to the contraceptive coverage requirement of the Affordable Care Act (ACA). Imputing the beliefs of owners of closely held corporations to such corporations, the U.S. Supreme Court found that closely held corporations that hold religious objections to certain contraceptive services cannot be required to provide coverage of those services in employee health plans. The Court's decision was based on the protections offered under the federal Religious Freedom Restoration Act (RFRA), a statute prohibiting the government from imposing a substantial burden on a person's religious exercise unless it can show a compelling interest achieved by the least restrictive means. The Court declined to address the constitutional challenge, holding that the companies were protected under RFRA."
Library of Congress. Congressional Research Service
Brown, Cynthia
2015-04-06
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United Nations Convention on the Rights of Persons with Disabilities: Issues in the U.S. Ratification Debate [January 21, 2015]
"The Senate may consider providing its advice and consent to U.S. ratification of the United Nations (U.N.) Convention on the Rights of Persons with Disabilities (CRPD, or the Convention) during the 114th Congress. CRPD is the only multilateral treaty that specifically aims to protect the rights of those who are disabled. To date, 151 countries have ratified or acceded to the Convention. It has been signed by 159 countries, including the United States. […] Generally, issues related to disability rights have received bipartisan agreement in Congress, and there has been support for CRPD among some Senators from both parties. Many policy makers--including those in the Obama Administration--agree that existing U.S. laws are generally in line with CRPD's provisions, and that no U.S. laws or policies would change as a result of U.S. ratification of the Convention. At the same time, other policy makers contend that ratification of CRPD would adversely affect U.S. sovereignty and interests."
Library of Congress. Congressional Research Service
Blanchfield, Luisa; Brown, Cynthia
2015-01-21
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