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Chron File (11/07/1983-11/17/1983)
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John Roberts' Chronological Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: Chron File (11/07/1983-11/17/1983)
Box: 62
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
November 7, 1983
FOR:
FRED F. FIELDING
FROM:
JOHN G. ROBERTS
apr
SUBJECT:
Statement of J. Paul McGrath re: Toxic
Waste Victim Compensation on November 8, 1983
OMB has provided us with a copy of testimony Assistant
Attorney General McGrath proposes to deliver tomorrow before
the Investigation and Oversight Subcommittee of the House
Public Works Committee, concerning toxic waste victim
compensation. The testimony does not announce any Adminis-
tration positions, but simply reviews the composition and
progress of the Toxic Torts Working Group, co-chaired by
McGrath and Michael Horowitz. McGrath makes four observa-
tions:
-- the problem must be confronted in a comprehensive
fashion, avoiding ad hoc responses to whatever toxic
tort is chic at the moment (whether asbestos, agent
orange, uranium poisoning, etc.)
-- any solution should consider not only those suffer-
ing from diseases for which a cause has been isolated,
but also diseases for which a cause may or may not be
discovered in the future;
-- the broader effect of proposed solutions on the
legal system must be assessed;
-- causation will likely be the critical issue.
McGrath also warns that care must be taken to avoid the
consequences of the black lung program, which ended up
costing billions of dollars and expanded into an income
distribution program reaching far beyond the original
intended beneficiaries.
I have no objections. The testimony simply points out the
parameters of debate on this subject without committing to
any positions.
Attachment
THE WHITE HOUSE
WASHINGTON
November 7, 1983
MEMORANDUM FOR RON PETERSON
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Statement of J. Paul McGrath re: Toxic
Waste Victim Compensation on November 8, 1983
Counsel's Office has reviewed the above-referenced proposed
statement, and finds no objection to it from a legal per-
spective.
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
November 7, 1983
FOR:
FRED F. FIELDING
FROM:
JOHN G. ROBERTS
DrR
SUBJECT:
Draft Proclamation:
National Christmas Seal Month
Dodie Livingston has asked for comments by 3:00 p.m. today
on the above-referenced draft proclamation, which proclaims
this month as National Christmas Seal Month. The proclama-
tion, authorized and requested by S.J. Res. 188, has been
approved by OMB. It reviews the impact of the various lung
diseases and the work of the American Lung Association --
the Christmas Seal people -- in combatting the diseases. I
have no legal objections. The draft is over-long, but Dodie
Livingston plans to edit it.
Attachment
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
November 7, 1983
FOR:
DODIE LIVINGSTON
SPECIAL ASSISTANT TO THE PRESIDENT
DIRECTOR, SPECIAL PRESIDENTIAL MESSAGES
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft Proclamation:
National Christmas Seal Month
Counsel's Office has reviewed the above-referenced draft
proclamation and finds no objection to it from a legal
perspective. We agree that the draft is too lengthy and
should be shortened.
THE WHITE HOUSE
WASHINGTON
November 8, 1983
FOR:
FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Enrolled Res. S.J. 188 - National
Christmas Seal Month
Richard Darman has asked for comments by c.o.b. Thursday,
November 10, on the above-referenced enrolled joint resolution,
which designates this month as National Christmas Seal Month. It
has been approved by OMB and HHS. I have reviewed the enrolled
resolution, and the memorandum for the President prepared by OMB
Assistant Director for Legislative Reference, James M. Frey, and
have no objection.
Our office, incidentally, has already reviewed and approved the
proclamation called for by this joint resolution.
THE WHITE HOUSE
WASHINGTON
November 8, 1983
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT AND
DEPUTY TO THE CHIEF OF STAFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Resolution S.J. 188 - National
Christmas Seal Month
Counsel's Office has reviewed the above-referenced enrolled
resolution, and finds no objection to it from a legal
perspective.
THE WHITE HOUSE
WASHINGTON
November 8, 1983
FOR:
FRED F. FIELDING
FROM:
JOHN G. ROBERTS
are
SUBJECT:
Draft Memorandum to Selected Departments and
Agencies re the Interagency Committee on
Women's Business Enterprise
Richard Darman has asked for comments by c.o.b. November 9
on the above-referenced draft memorandum. The memorandum,
prepared by Becky Norton Dunlop, asks the appropriate
department and agency heads to designate an individual to
serve on the reactivated Interagency Committee on Women's
Business Enterprise. This Committee, established by
Executive Order 12138 (May 18, 1979) (copy attached), had
become inactive, but the President announced his intention
to reactivate it last May, originally naming Bay Buchanan as
the new chairperson. The purpose of the Committee is to
ensure and monitor implementation of the Executive Order,
which mandates "affirmative action" to promote women's
business enterprise.
You will recall that when we were consulted on this question
(one-half hour before the announcement), we expressed
reservations in light of the affirmative action language in
the Carter executive order, including language supporting
the acceptability of numerical set-asides. We did not block
the announcement on this ground, however, because the
affirmative action language was vague enought to fit (albeit
uncomfortably) within this Administration's definiton of
affirmative action, and because the Executive Order directed
all departments and agencies to consult with the Department
of Justice concerning what sorts of actions would be
appropriate. We raised the question with the Justice
Department (Civil Rights Division), and they had no
objection to reactivating the Committee.
Buchanan's tenure as chairperson was short-lived, because of
the requirement that those serving on the Committee be
government employees. Dunlop was named to succeed Buchanan,
and Nancy Risque and Ann Wrobleski have been named as
representatives of the Executive Office of the President.
The proposed memorandum asks agency heads to designate their
representatives and to cooperate with the Committee. It
-2-
also states "I expect the heads of all departments and
agencies to support this goal through federal programming
which provides equitable opportunities for women business
owners." This could be taken by some to justify quotas, but
since it is phrased in terms of "opportunities," I have no
objection.
A draft is attached for your signature, noting that we have
no legal objection to the proposed memorandum.
THE WHITE HOUSE
WASHINGTON
November 8, 1983
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT AND
DEPUTY TO THE CHIEF OF STAFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft Memorandum to Selected Departments and
Agencies re the Interagency Committee on
Women's Business Enterprise
Counsel's Office has reviewed the above-referenced draft
memorandum, and finds no objection to it from a legal
perspective. In the last sentences of the fifth and sixth
paragraphs, however, "which" should be "that."
THE WHITE HOUSE
WASHINGTON
November 9, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Statement of John Keeney Regarding
Credit Card and Computer Fraud H.R. 3570
and H.R. 3181 on November 10, 1983
Deputy Assistant Attorney General John Keeney proposes to
deliver the attached testimony before the House Judiciary
Subcommittee on Crime on November 10. Keeney's testimony
discusses two bills, H.R. 3570 and H.R. 3181, which provide
penalties for credit and debit card counterfeiting and other
related fraud. H.R. 3570 also provides penalties for anyone
who "uses a computer with intent to execute a scheme to
defraud."
The testimony expresses strong support for the portions of
both bills dealing with crimes involving credit and debit
cards. Like other testimony delivered on behalf of the
Administration on this subject, this statement suggests
various amendments to the bill to correct problems caused by
judicial decisions, such as the fact that illegal use of a
credit card number, as opposed to the card itself, is not
covered. The testimony also suggests that the provisions
dealing with computer fraud be severed from the legislation,
so that Justice and other agencies have more time to study
possible solutions to the problem. I have reviewed the
testimony, and find no objections to it.
Attachment
THE WHITE HOUSE
WASHINGTON
November 9, 1983
MEMORANDUM FOR GREGORY JONES
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Statement of John Keeney Regarding
Credit Card and Computer Fraud H.R. 3570
and H.R. 3181 on November 10, 1983
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective.
FFF:JGR:aea 11/9/83
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THE WHITE HOUSE
WASHINGTON
November 10, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Alleged Unconstitutionality of
Proposed Bypass Charges in S. 1660
and H.R. 4102
Michael W. Faber of Peabody, Lambert & Meyers has written
you on behalf of his partner, Ted Meyers, to contend that
the proposed bypass charges in S. 1660 and H.R. 4102 are
unconstitutional. Those bills, the "Universal Telephone
Service Preservation Act of 1983," would impose a charge on
telephone service users bypassing central exchanges. The
amount of the charge would be set by a new regulatory
agency. A memorandum prepared by Peabody, Lambert & Meyers
contends that the charge is properly classified as a tax,
not a fee. The legislative history compiled to date on the
bypass charge question indicates that the purpose of the
charge is to create a fund to help maintain universal
telephone service -- a purpose evident in the very name of
the Act. Charges to promote such general public purposes --
as opposed to paying for costs associated with a particular
activity -- are taxes, not fees. Under established
precedents, Congress cannot constitutionally delegate the
taxing authority, and the bills are, accordingly,
unconstitutional.
The argument as presented in the Peabody memorandum is
compelling, but there is another side to the story.
Although I am not intimately familiar with how these systems
work, I am advised that users who bypass exchange services
-- thereby avoiding certain tolls -- nonetheless enjoy the
benefit of having the exchange services available as a
back-up or alternate. Such intermittent use of exchange
services by the large-volume bypassers imposes large and
unpredictable demands on the exchange services. It is also
true that those who bypass the exchanges nonetheless benefit
directly from the existence of universal service facilitated
by the exchanges. These arguments suggest that those who
normally bypass exchanges nonetheless impose costs on the
exchanges, and that charges for bypassing can be justified
as fees if directly related to those costs. The problem is
that this justification is not the most prominent in the
legislative history developed to date.
The Peabody memorandum has been widely circulated and has
caused something of a stir. There is, however, no reason
for our office to become involved in this dispute at this
point. I recommend no response.
THE WHITE HOUSE
WASHINGTON
November 14, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
are
SUBJECT:
Proposed Justice Statement on S. 1876,
a Bill to Allow Advertising of Any State-
Sponsored Lottery, Gift Enterprise, or
Similar Scheme
OMB has asked for our views by noon today on the attached
testimony, which Deputy Assistant Attorney General Keeney
proposes to deliver before the Senate Judiciary Subcommittee
on Criminal Law on November 16. The testimony supports
S. 1876, a bill that would ease existing restrictions in
18 U.S.C. §§ 1301, 1302, and 1307 on advertisement of state
licensed and regulated lotteries. The existing laws were
written in the nineteenth century, well before the rise of
state sanctioned lotteries. S. 1876 would permit
advertising in interstate and foreign commerce of any
lottery scheme authorized, licensed, and regulated by state
law.
The Department of Justice previously opposed easing federal
lottery advertising restrictions, to avoid potential
conflicts with the laws of those states in which lotteries
are illegal. It is now Justice's view, however, that
Bigelow V. Virginia, 421 U.S. 809 (1975) renders existing
bans on out-of-state lottery advertisements constitutionally
suspect. That decision held that advertisements for
abortions to take place in states where abortions are legal
could not be banned from appearing in states where abortions
and the advertisements themselves were illegal.
I have no objection to the proposed testimony. I do not
know if Justice's new position will antagonize religious
supporters opposed to gambling on moral grounds. I bet not.
If you think that danger does exist, however, I will brief
Morton Blackwell on the reasons for Justice's position so
that he may be prepared for any calls he might receive.
Attachment
THE WHITE HOUSE
WASHINGTON
November 14, 1983
MEMORANDUM FOR JAMES C. MURR
CHIEF, ECONOMICS-SCIENCE-GENEPAL GOVERNMENT
BRANCH, OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed Justice Statement on S. 1876,
a Bill to Allow Advertising of Any State-
Sponsored Lottery, Gift Enterprise, or
Similar Scheme
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective.
FFF: JGR:aea 11/14/83
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THE WHITE HOUSE
WASHINGTON
November 14, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS ord
SUBJECT:
Statement of Mark Richard: Oversight
Hearings on the Federal Regulation of
Lobbying Act (November 15, 1983)
Deputy Assistant Attorney General Richard proposes to
deliver the attached statement before the Senate Committee
on Government Operations tomorrow. The statement presents
the Department's views on inadequacies in the Lobbying Act,
2 U.S.C. §§ 261-270, which requires registration of lobby-
ists and disclosure of certain information in connection
with their activities. The statement contends that the Act
is ineffective, inadequate, and unenforceable, largely
because of restrictions on the Act imposed by the Supreme
Court in United States V. Harriss, 347 U.S. 612 (1954).
That decision held that the Act only applied to lobbyists
who receive contributions from others, who directly and
personally communicate with members of Congress (not staff)
for the purpose of influencing legislation, and whose
activities in substantial part are directed toward in-
fluencing legislation.
The testimony does not favor proposals to shift adminis-
trative responsibilities under the Act from the Clerk of
the House and the Secretary of the Senate, and it points out
that, largely because of the Harriss decision, the solution
to any perceived problems in this area does not lie in
increased enforcement efforts. On page 5, the sentence
beginning on line 8 notes that the Clerk of the House and
the Secretary of the Senate are mere repositories of records
under the Lobbying Act "without any affirmative responsi-
bility to investigate possible violations of the Act or to
refer complaints to the Department." The tone and context
in which this sentence appears suggest that the Congres-
sional officers should have such responsibility. I
recommend deleting "to investigate possible violations of
the Act or", since I do not think we should support giving
responsibility to investigate violations of federal law to
Congressional officers. I have no other objections.
Attachment
THE WHITE HOUSE
WASHINGTON
November 14, 1983
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ANALYST
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Statement of Mark Richard: Oversight
Hearings on the Federal Regulation of
Lobbying Act (November 15, 1983)
Counsel's Office has reviewed the above-referenced
testimony. We recommend deleting "to investigate possible
violations of the Act or" on page 5, lines 10-11. As
written, the sentence implies that it would be better if the
Clerk of the House and the Secretary of the Senate did have
an affirmative responsibility_ to investigate violations of
the Act. We consider it inappropriate for Congressional
officers to be given authority to investigate violations of
federal law. That is the responsibility of the Federal
Bureau of Investigation and other entities in the Department
of Justice and Executive branch. We have no objection to
the Clerk of the House and Secretary of the Senate being
directed to refer complaints or questions to the Depart-
ment, but investigation goes too far.
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THE WHITE HOUSE
WASHINGTON
November 14, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Letter to Mr. Baker Requesting the
President's Sponsorship of the
Naturalization of His Family as U.S.
Citizens
William B. Marrash, an emigre from Lebanon, has written Mr.
Baker to seek the President's help in obtaining natural-
ization for himself and members of his family. Mr. Marrash
and his family were admitted to the United States in 1976,
but they have not been able to accumulate the requisite
period of residence for naturalization because Mr. Marrash
has been working in London for G.D. Searle & Co. Indeed,
Mr. Marrash prefaces his letter to Baker by noting that he
works for the company run by one of Baker's predecessors,
Donald Rumsfeld. Attached to the letter to Baker were
copies of letters to various Congressmen, the President, and
the Vice President, as well as various biographical
materials concerning Marrash and his family.
Marrash's letter appears well-intentioned and sincere, but
the White House should not become involved in any way in the
processing of naturalization requests. I have prepared a
memorandum referring the entire package to the INS General
Counsel for whatever action and direct response may be
appropriate. I assume that response will, among other
things, advise Marrash that the President cannot grant
citizenship by decree.
Attachment
THE WHITE HOUSE
WASHINGTON
November 14, 1983
MEMORANDUM FOR MAURICE C. INMAN, JR.
GENERAL COUNSEL
IMMIGRATION AND NATURALIZATION SERVICE
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Letter to Mr. Baker Requesting the
President's Sponsorship of the
Naturalization of His Family as U.S.
Citizens
The attached materials are referred to you for direct reply
and whatever action may be appropriate. We seek no
favorable treatment for Mr. Marrash and ask only that his
request be processed or handled in the same manner as other
similar requests.
Many thanks.
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THE WHITE HOUSE
WASHINGTON
November 14, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
DDB
SUBJECT:
Anonymous Allegations Regarding
ICC and FHA Administration Employee's
Use of Government Cars for Personal
Business
You will recall that Mr. Baker received an anonymous letter
alleging misuse of government vehicles by FHA and ICC
officials in New England. On October 25 I prepared two
separate memoranda referring the allegations to James H.
Burnley IV, General Counsel at Transportation, and John H.
Broadley, General Counsel at the ICC, both of which you
signed on the same day. On October 27 we received a reply
from Broadley noting he had referred the matter to the
appropriate ICC office; Burnley has now replied that he
referred the matter to the Transportation IG. On the
tracking sheet for the Burnley reply you asked: "Why didn't
we send to ICC?" Answer: we did. Copies of the ICC
correspondence are attached.
As with the Broadley reply, I do not think a response is
necessary or appropriate to the reply from Burnley. Both
replies simply advise us of the action taken and do not call
for any sort of response.
Attachment
THE WHITE HOUSE
WASHINGTON
November 15, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Suggestion that Retired Supreme Court
Justices be Eligible to Fill Vacant
Seats on the Supreme Court (Article
From Baltimore's "Daily Record")
Jay L. Spiegel has written, enclosing a copy of an article
he wrote for Baltimore's Daily Record. The article points
out the danger that the Supreme Court, with several aging
members, may find itself short-handed for an extended period
of time in the near future. With recusals, this could
result in the absence of a quorum of six Justices (see
28 U.S.C. § 1) for numerous cases. Spiegel proposes a
statute be enacted authorizing retired Justices to "fill in"
until an ailing member of the Supreme Court is well or a
vacancy filled.
There is already a fascinating but little-known statutory
procedure for dealing with the problem of the absence of a
quorum of the Supreme Court. Under 28 U.S.C. § 2109, cases
brought to the Supreme Court by direct appeal from a
district court that cannot be heard due to the absence of a
quorum are to be remitted, by order of the Chief Justice, to
the court of appeals for the circuit containing the district
court. That court shall hear and finally decide the case
either en banc or by a panel consisting of the three most
senior circuit judges, as the order directs. In all other
cases brought before the Supreme Court that cannot be heard
due to the absence of a quorum, if a majority of the
Justices qualified to sit determine that the case cannot be
heard in the next ensuing term, the case shall be affirmed
by order of the Supreme Court, and the affirmance shall have
the same effect as affirmance by an equally divided court.
This latter procedure is the answer to the riddle of how a
case can be affirmed by the Supreme Court when five quali-
fied Justices believe it should be reversed: if the five
wanting to reverse the case are the only ones qualified to
sit, and they determine a quorum will not be available in
the next term, then the case will be affirmed by order of
the Supreme Court (albeit without precedential value).
The remittal procedure of 28 U.S.C. § 2109 has been used
only once in the history of the Supreme Court, in the
landmark antitrust case United States V. Alcoa, 322 U.S.
716 (1944), finally decided by the three most senior Second
Circuit judges, Learned Hand, Augustus Hand, and Thomas
Swan, see 148 F. 2d 416 (2 Cir. 1945). The affirmance
procedure has been used twice, see Prichard V. United
States, 339 U.S. 974 (1950); Sloan V. Nixon, 419 U.S. 958
(1974).
I have drafted a reply to Spiegel, noting that we have
referred his suggestion to Justice's OLP (for want of any
other idea) and also calling 28 U.S.C. § 2109 to his
attention. The reply also notes Spiegel's error in
considering Arthur Goldberg a retired Justice. Goldberg
resigned; he did not retire.
Attachment
THE WHITE HOUSE
WASHINGTON
November 15, 1983
Dear Mr. Spiegel:
Thank you for your letter of November 4, and the accompany-
ing copy of your article in the Baltimore Daily Record.
That article proposed enactment of a federal statute per-
mitting a retired Supreme Court justice to fill temporarily
a vacant seat on the Supreme Court.
Current law does make provision for the absence of a quorum
of the Supreme Court. Under 28 U.S.C. § 2109, cases brought
to the Supreme Court on direct appeal from a district court
are remitted to the court of appeals for the circuit in
which the district court is located; other cases, if it is
determined that they cannot be decided at the next ensuing
term, are affirmed by an order that has the same effect as
affirmance by an equally divided Court. The former pro-
cedure was used in United States V. Alcoa, 322 U.S. 716
(1944); the latter in Prichard V. United States, 339 U.S.
974 (1950) and Sloan V. Nixon, 419 U.S. 958 (1974). Your
article, however, raises interesting concerns, and I have
taken the liberty of forwarding it to the Department of
Justice, Office of Legal Policy, for whatever review that
office considers appropriate.
I would point out that former Justice Arthur Goldberg, un-
like Justice Potter Stewart, resigned from the Court; he did
not retire. Thank you again for sharing your interesting
article with us.
Sincerely,
Fred F. Fielding
Counsel to the President
Mr. Jay L. Spiegel
110 W. 39 Street, #1315
Baltimore, Maryland 21210
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THE WHITE HOUSE
WASHINGTON
November 15, 1983
MEMORANDUM FOR JONATHAN C. ROSE
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL POLICY
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Suggestion that Retired Supreme Court
Justices be Eligible to Fill Vacant
Seats on the Supreme Court (Article
From Baltimore's "Daily Record")
The attached letter from and article by Jay L. Spiegel,
together with a copy of my reply, are submitted for whatever
review, if any, you consider appropriate.
Attachment
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THE WHITE HOUSE
WASHINGTON
November 15, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
DJR
SUBJECT:
H.J. Res. 1 -- Equal Rights Amendment
Richard Darman asked for immediate comments on the attached
proposed Administration policy statement. As you know, the
Equal Rights Amendment is being considered in the House
today on the suspension calendar -- only forty minutes of
debate, with no consideration of amendments. The proposed
policy statement objects to this procedure for a Constitu-
tional amendment, without comment on the merits beyond
reaffirming that the Administration supports equality of
rights for all citizens.
After conferring with Mr. Hauser, I advised Darman's office
that we had no legal objection to the proposed statement. I
also advised that we would not object should policy offices
in the White House desire to include a statement of our
continuing opposition to the Equal Rights Amendment on the
merits.
Attachment
THE WHITE HOUSE
MAEFINGTON
November 1€, 1983
Dear Mr. Saccani:
Thank you for your letter to the President, requesting that
he serve as Honorary Chairman of the 1984 Tony Conicliaro
Sports Benefit. WE appreciate the kind thoughts contained
in your letter.
I am sorry to have to inform you, however, that the
President cannot accept your gracious invitation to serve as
Honorary Chairman. I am certain you will appreciate that
the President receives countless such invitations from
charitable croups. Except for activities with which
Presidents have traditionally been associated, such as the
Red Cross, or activities in which the President has been
personally involved in the past, the President has been
compelled to adopt a policy of uniformly declining these
requests, no matter how laudable the objectives of the
charitable organization.
Adherence to this policy is necessary primarily out of
considerations of fairness. The President cannot possibly
accept all the invitations to serve as an honorary chairman
he receives, and arbitrarily choosing some would be unfair
to those not chosen. The White House also cannot permit the
President's name to be used in connection with activities
beyond our control or supervision, which would necessarily
occur were the President to accept such invitations.
Please be assured that our need to adhere to this policy in
this instance is in no sense an adverse reflection on you or
the work of the Tony Conigliaro Benefit Committee. We wish
you every success in your efforts.
Sincerely,
Fred F. Fielding
Counsel to the President
Mr. Donald R. Saccani
Mariner Distributing Co.
79 Mitchell Boulevard
San Rafael, California 94903
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THE WHITE HOUSE
WASHINGTON
November 16, 1983
Dear Mr. Spiegel:
Thank you for your letter of November 4, and the accompany-
ing copy of your article in the Baltimore Daily Record.
That article proposed enactment of a federal statute per-
mitting a retired Supreme Court justice to fill temporarily
a vacant seat on the Supreme Court.
Current law does make provision for the absence of a quorum
of the Supreme Court. Under 28 U.S.C. § 2109, cases brought
to the Supreme Court on direct appeal from a district court
are remitted to the court of appeals for the circuit in
which the district court is located; other cases, if it is
determined that they cannot be decided at the next ensuing
term, are affirmed by an order that has the same effect as
affirmance by an equally divided Court. The former pro-
cedure was used in United States V. Alcoa, 322 U.S. 716
(1944); the latter in Prichard V. United States, 339 U.S.
974 (1950) and Sloan V. Nixon, 419 U.S. 958 (1974). Your
article, however, raises interesting concerns, and I have
taken the liberty of forwarding it to the Department of
Justice, Office of Legal Policy and Office of Legal Counsel,
for whatever review these offices consider appropriate.
As a point of fact, in further response to your letter, I
would point out that former Justice Arthur Goldberg, un-
like Justice Potter Stewart, resigned from the Court; he did
not retire.
Thank you again for sharing your interesting article with
us.
Sincerely,
Fred F. Fielding
Counsel to the President
Mr. Jay L. Spiegel
110 W. 39 Street, #1315
Baltimore, Maryland 21210
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THE WHITE HOUSE
WASHINGTON
November 16, 1983
MEMORANDUM FOR JONATHAN C. ROSE
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL POLICY
THEODORE B. OLSON
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL COUNSEL
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Suggestion that Retired Supreme Court
Justices be Eligible to Fill Vacant
Seats on the Supreme Court (Article
From Baltimore's "Daily Record"
The attached letter from and article by Jay L. Spiegel,
together with a copy of my reply, are submitted for whatever
review, if any, you consider appropriate.
Attachments
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THE WHITE HOUSE
WASHINGTON
November 16, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
828
SUBJECT:
Draft Presidential Radio Talk:
Department of the Interior
Richard Darman has asked that comments on the above-
referenced draft remarks be sent directly to Ben Elliott by
4:00 p.m. today. The remarks, drafted by the President,
praise what former Secretary Watt did during his tenure at
the Department of the Interior. I assume the decision to
deliver such remarks was made in response to efforts by some
in the Senate to link Mr. Clark's confirmation to consider-
ation of a resolution critical of Watt's policies (see
attached news accounts).
On page 3, lines 7-8, the remarks refer to the sale of a
strip of federal land two miles long and two feet wide and
state "that must have erased some problems private land-
owners had with clouded title to their property." If the
Government did own such a strip of land it would not "cloud"
the title of others -- their title would not cover it at
all. I would simply delete "clouded title to."
The last sentence of the second full paragraph on page 3
states: "Not one acre of park or wilderness land was leased
for oil drilling or mining, contrary to what you may have
read or heard." I was concerned that this was true only
because Congress blocked Watt's efforts. According to Hank
Habicht of Justice's Lands Division, however, Watt did not
propose leasing of any park or wilderness land, as techni-
cally defined. He did announce a willingness to process
lease applications covering the Bob Marshall wilderness
area, which prompted a preemptive legislative veto by
Representative Udall's committee, and litigation that was
eventually settled. Watt reserved the question of whether
he would actually issue leases on wilderness land, however,
so the sentence is not only technically correct but also
fair in its import. Habicht recommends keeping it in and I
concur.
Attachment
THE WHITE HOUSE
WASHINGTON
November 16, 1983
MEMORANDUM FOR BEN ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PRESIDENTIAL SPEECHWRITING OFFICE
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft Presidential Radio Talk:
Department of the Interior
Counsel's Office has reviewed the above-referenced draft
remarks. On page 3, line 8, we recommend deleting "clouded
title to." If the Government did own a strip of land two
miles long and two feet wide, the strip would doubtless
interfere with the property of others but would not
technically "cloud" their title -- their title would not
cover it at all.
In the first line of the second full paragraph on page 4, we
assume "studies" was meant to be "strides."
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THE WHITE HOUSE
WASHINGTON
November 16, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS ask
SUBJECT:
Proposed DOJ Response to Questions
Concerning H.R. 3625, a Bill to
Amend the Inspector General Act
of 1978
Jim Murr of OMB has asked for comments by close of business
today on the attached proposed responses prepared by the
Department of Justice to questions submitted by the House
Government Operations Committee concerning H.R. 3625. This
bill would, among other things, amend the Inspector General
Act of 1978 to extend its coverage to include the Department
of Justice. The Department has consistently opposed the
bill, most recently in testimony delivered by Associate
Attorney General Lowell Jensen on October 26, 1983 (copy of
testimony and my memorandum concerning it attached).
The questions from the Committee ask precisely in what
manner extension of the IG Act to Justice would interfere
with prosecutorial discretion, and what reservations the
Department has concerning the reporting requirements of the
Act. The Department's response is a lengthy discussion of
the application of prosecutorial discretion throughout the
U.S. Attorneys Offices and at the Department, as well as the
established procedures for approval of undercover opera-
tions. The central point that is made is that an IG at
Justice would be in a position to override or at least
intrude upon the exercise of this discretion. With respect
to the reporting requirements of the Inspector General Act,
the Department's response notes that application of this
requirement to the Justice Department could compromise
sensitive ongoing investigations, confidential sources,
classified information, and litigation material.
I have reviewed the Department's proposed responses to the
questions submitted by the Committee, and have no objection
to them. They are consistent with prior Department of
Justice testimony on the Inspector General Act and H.R.
3625.
Attachment
THE WHITE HOUSE
WASHINGTON
November 16, 1983
MEMORANDUM FOR JAMES C. MURR
CHIEF, ECONOMICS-SCIENCE-GENERAL GOVERNMENT
BRANCH, OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed DOJ Response to Questions
Concerning H.R. 3625, a Bill to
Amend the Inspector General Act
of 1978
Counsel's Office has reviewed the above-referenced proposed
responses, and finds no objection to them from a legal
perspective.
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THE WHITE HOUSE
WASHINGTON
November 17, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
QZR
SUBJECT:
Statement of John C. Keeney
Re: Computer Crime -- H.R. 1092
on November 18, 1983
We have been provided with a copy of the above-referenced
testimony, which Deputy Assistant Attorney General Keeney
proposes to deliver before the House Judiciary Subcommittee
on Civil and Constitutional Rights on November 18. The
testimony notes that the Department is still reviewing the
question of computer fraud, and that it hopes to submit
proposals in the near future. Accordingly, Keeney takes no
position on proposals currently pending before the
Subcommittee. He does note that computer fraud fits
uncomfortably into existing criminal provisions, with gaps
caused by requirements such as the need for transmissions to
cross state lines to be covered by federal law or the need
to consider theft of information the theft of a tangible
asset with fixed value.
Keeney defers to Commerce on a proposal to fund a grant
program to develop new methods of protecting computers, and
to Treasury on a proposal to give tax credits to those who
purchase computers. He does object to a plan to create an
interagency advisory committee on the subject as an overly
formal and cumbersome approach.
I have no objections.
Attachment
THE WHITE HOUSE
WASHINGTON
November 17, 1983
MEMORANDUM FOR GREGORY JONES
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Statement of John C. Keeney
Re: Computer Crime -- H.R. 1092
on November 18, 1983
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective.
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THE WHITE HOUSE
WASHINGTON
November 17, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 826
SUBJECT:
Draft Proclamation/National Decade
of Disabled Persons (1983-1992)
Dodie Livingston has asked for comments on the above-
referenced draft proclamation by close of business Friday,
November 18. This proclamation does not satisfy our usual
criteria, since it neither has been requested by joint
resolution nor is it customary. The United Nations,
however, has designated 1983-1992 as the U.N. Decade of
Disabled Persons, and Congress has passed a concurrent
resolution asking the President to implement the U.N.
resolution. In August, Livingston raised the question of
issuing a proclamation on this subject with the Senior
Staff, and obtained approval to proceed.
The proclamation, drafted by HHS and approved by OMB, notes
the progress made during the 1981 International Year and
1982 National Year of Disabled Persons, and urges
continuation of this progress during the designated Decade
of Disabled Persons. The emphasis is on opportunities for
independent living by the disabled.
I have no legal objections.
Attachment
THE WHITE HOUSE
WASHINGTON
November 17, 1983
MEMORANDUM FOR DODIE LIVINGSTON
SPECIAL ASSISTANT TO THE PRESIDENT
DIRECTOR, SPECIAL PRESIDENTIAL MESSAGES
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft Proclamation/National Decade
of Disabled Persons (1983-1992)
Counsel's Office has reviewed the above-referenced draft
proclamation, and finds no objection to it from a legal
perspective. In paragraph four, line two, "which" should
be "that" or, better still, "which are" may be deleted
altogether.
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THE WHITE HOUSE
WASHINGTON
November 16, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
D.C. Chadha Correspondence
David Clarke, Chairman of the D.C. Council, and Wilhelmina
Rolark, Chairperson of the Council's Committee on the
Judiciary, have written you in response to the draft letter
from Robert McConnell on H.R. 3932, the D.C. Chadha bill.
As you know, OMB provided the Council with a copy of the
draft for comment. The letter itself was sent out early
this morning, with the changes we discussed yesterday.
The letter contends that our position entails "disastrous
consequences" for Home Rule, and would impede the ability
of the Council to enact appropriate criminal laws to protect
the citizens of the District. The letter reviews actions of
the Council with respect to criminal law, in an effort to
mount an argument that our fears of laxness are unjustified.
The letter also notes that Congress, unlike the Council, is
likely to ignore local District criminal law problems.
Briefly, the answers: Our proposal does not have
"disastrous consequences" for Home Rule. This bill is not,
in the first place, a Home Rule bill at all but a bill to
correct constitutional problems pointed out by Chadha. We
support giving the Council plenary authority in every area
except criminal law. Such an approach continues a
distinction in current law permitting easier Congressional
review of Council actions in the criminal law area.
As to what the Council has done in the criminal area, there
is some good and some bad. Our U.S. Attorneys Office,
however, which deals with these issues on a day-to-day
basis, advised us that zany ideas have been blocked only
because of the threat of Congressional veto. The U.S.
Attorneys Office was horrified at the prospect of the
Council legislating in this area without the check of
effective Congressional control.
Finally, the Council can still act in this area. The fear
that Congress will have to become intimately involved in the
minutiae of local law is unfounded. All that the Council
need do is obtain approval of its actions, which should be
forthcoming for reasonable proposals.
I do not think you should send a substantive reply to Clark
and Rolark. The letter they're concerned about was from
McConnell; their reply should be directed to him. This
approach will help keep the dispute between the District and
Justice, rather than the District and the White House, to
the extent that is possible in light of OMB's "leaks" to
District officials. A brief reply noting you have referred
the letter to Justice for consideration and response is
attached. I have copied Horowitz to let him know we think
the matter should be kept over at Justice.
Attachment
THE WHITE HOUSE
WASHINGTON
November 16, 1983
MEMORANDUM FOR ROBERT A. MCCONNELL
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AFFAIRS
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
D.C. Chadha Correspondence
The attached letter from the D.C. Council Chairman and the
Chairperson of the Council Judiciary Committee, together
with a copy of my reply, is referred to you for your
consideration and direct reply. I think it best to keep the
debate on this matter, to the extent possible, between
District officials and the Justice Department rather than
District officials and the White House.
CC: Michael Horowitz
Counsel to the Director
Office of Management and Budget
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THE WHITE HOUSE
WASHINGTON
November 16, 1983
Dear Mr. Clarke and Ms. Rolark:
Thank you for your letter of November 15, concerning a draft
of a letter to Senator William V. Roth, Jr. from Assistant
Attorney General Robert A. McConnell. That draft letter
discussed H.R. 3932, a bill to amend the District of
Columbia Self-Government and Governmental Reorganization Act
to correct certain constitutional infirmities in the wake of
the Supreme Court's recent decision in Immigration and
Naturalization Service V. Chadha, 103 S.Ct. 2764 (1983). A
letter from Assistant Attorney General McConnell concerning
H.R. 3932 has now been sent, although with several changes
from the draft you reviewed.
I have referred your letter to Assistant Attorney General
McConnell for his consideration and direct reply. The
Department of Justice is most directly involved in these
issues and accordingly is in the best position to respond to
your expressed concerns. Thank you for sharing those
concerns with us.
Sincerely,
Fred F. Fielding
Counsel to the President
Mr. David A. Clarke
Ms. Wilhelmina J. Rolark
Council of the District of
Columbia
Washington, D.C. 20004
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THE WHITE HOUSE
WASHINGTON
November 17, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
are
SUBJECT:
Mayor's Response to the Administration
Position on H.R. 3932
Mayor Barry has written the President to object to the
McConnell letter on H.R. 3932, the D.C. Chadha bill. The
mayor attempts to refute the contention that criminal law is
accorded special treatment under existing law through highly
selective quotation from the legislative history of the Home
Rule Act. At no point does he address the basic fact that
under existing law Council acts in the criminal area are
subject to a one-house veto while all other acts are subject
to a two-house veto, the clearest evidence of the "special
treatment" referred to in the McConnell letter.
The mayor's letter also maintains that the McConnell letter
"relied heavily" on a court decision, Palmore V. United
States, 411 U.S. 389 (1973), and criticizes that supposed
reliance. In fact, the decision was cited once, in passing,
in the course of establishing that the District court system
is a federal court system with judges appointed by the
President. The mayor's letter does not otherwise respond to
the substance of the McConnell letter, although it concludes
by criticizing the Administration's delay in presenting its
position and maintaining that members of the Administration
"misled" Mayor Barry and his staff.
As I mentioned this morning, I think it best to redirect the
District's objections to the Justice Department, not only to
minimize the fallout but also because Justice (through the
U.S. Attorneys Office) originated the position and stands to
lose the most if it does not prevail. A referral memorandum
and acknowledgment letter is attached. If you agree, I will
let OMB know that this is how we are handling the mayor's
letter.
Attachment
THE WHITE HOUSE
WASHINGTON
November 17, 1983
MEMORANDUM FOR ROBERT A. MCCONNELL
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AFFAIRS
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Mayor's Response to the Administration
Position on H.R. 3932
The attached letter from the Mayor, together with a copy of
my reply, is referred to you for your consideration and
direct reply. As I noted with respect to the similar letter
from the D.C. Council, I think it best to keep this matter
at the Justice Department to the extent possible.
Attachment
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THE WHITE HOUSE
WASHINGTON
November 17, 1983
Dear Mayor Barry:
Thank you for your letter of November 15 to the President,
concerning the Administration's position on H.R. 3932. That
position was announced in a letter from Assistant Attorney
General Robert A. McConnell.
I have referred your letter to Assistant Attorney General
McConnell for consideraton and direct reply. The Department
of Justice is most directly involved in these issues and
accordingly is in the best position to respond to your
expressed concerns.
Thank you for sharing these concerns with us.
Sincerely,
Fred F. Fielding
Counsel to the President
The Honorable Marion Barry
Mayor of the
District of Columbia
Washington, D.C. 20004
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THE WHITE HOUSE
WASHINGTON
November 17, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
A Legislative Proposal "To Provide
for Comprehensive Reforms in Compensation
of Attorneys, Pursuant to Federal Statute
in Civil and Criminal Proceedings Against
U.S. and Against State and Local
Governments"
Assistant Attorney General McConnell has sent you a copy of
a package he sent to OMB Director Stockman for clearance.
The package contains Justice's proposed "Legal Fees Reform
Act," a section-by-section analysis, and a draft letter to
the Speaker. Our office has reviewed the substance of this
proposal before and noted no legal objection to it (copies
of pertinent memoranda attached). The bill would:
limit award of attorneys fees against the
United States or state and local governments to
truly "prevailing" parties, and then only for time
devoted to issues on which the party prevailed
set a ceiling on such attorneys fees of $75 per hour
permit courts to reduce or deny attorneys fees for a
variety of reasons (unreasonable prolonging of
litigation, fees unreasonably exceed monetary
recovery, fees exceed hourly salary of the attorney,
etc.)
reduce the amount of attorneys fees by 25% of any
monetary award (on the theory that litigation costs
should be at least partially paid from damages
obtained)
double the rate of compensation for attorneys for
indigent defendants under the Criminal Justice Act
establish uniform procedures for applying for
attorneys fees from governments
clarify and limit the circumstances under which
attorneys fees may be awarded when a case is settled
or becomes moot due to a policy change
The letter to the Speaker explicitly links support for
increased fees for Criminal Justice Act attorneys with the
limitations on fee awards against governments in other
cases. The letter reviews the abuses that have developed in
this area, and justifies the $75 cap as (1) the same rate as
set in the Equal Access to Justice Act, 28 U.S.C.
§ 2412 (d) (1) and (3), and (2) more commensurate with com-
pensation paid government attorneys. The latter comparison
is considered appropriate since fees are shifted to govern-
ments in these cases on the theory that the prevailing
plaintiff was acting as a "private attorney general." If
this theory is correct, he should be compensated roughly the
same as attorneys who work for the real Attorney General,
i.e., government lawyers.
I have reviewed the proposed bill, section-by-section
analysis, and Speaker letter, and have no objection to them.
They are not significantly different from those we approved
in September. OMB has not yet formally requested our views,
but I wanted to alert you to McConnell's transmittal in case
you received any inquiries about it.
Attachment
THE WHITE HOUSE
WASHINGTON
November 17, 1983
Dear Mr. Marrash:
This is in response to your letter of October 22, 1983 to
White House Chief of Staff James A. Baker III. In that
letter and accompanying materials you requested assistance
in obtaining citizenship through naturalization for yourself
and various members of your family.
Please be advised that the White House does not become
involved in the consideration or resolution of such matters.
We have, however, referred your correspondence to the
Immigration and Naturalization Service (INS) for whatever
review or action that agency considers appropriate. You
should direct any further correspondence to the appropriate
INS office.
Sincerely,
Fred F. Fielding
Counsel to the President
Mr. William B. Marrash
c/o Azzam
15 Lucielle Drive
Easton, CT 06612
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