                                                               May 22, 1979


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

          Office o f Legal Counsel—Limitation on Opinion
          Function


   This confirms the advice we gave orally concerning your May 18 memo­
randum concerning a requested Office o f Legal Counsel opinion. You
state that a Federal district judge has asked for our opinion on an issue
that has arisen in connection with a pending grand jury investigation. That
issue is whether the Department o f Justice has the authority to investigate
possible violations o f title 18, involving pension plans covered by the
Employee Retirement Income Security Act, 29 U .S.C . § 1001 et seq. As I
indicated orally to you previously, it would not be appropriate in this cir­
cumstance for us to render a legal opinion.
   The Attorney General has delegated certain responsibilities to the Office
o f Legal Counsel, including the preparation o f his formal opinions and
advice to Government agencies. 28 CFR § 0.25. That delegation does not
authorize us to provide legal advice at the request o f the judicial branch.
Moreover, the opinion function o f the Attorney General himself is limited
by statute to the provision o f advice to the President, the heads o f execu­
tive departments, and the Secretaries o f military departments. 28 U.S.C.
§§ 511-513.
   In addition to those restrictions on our opinion function, we note that
this Department has, as a m atter o f policy, consistently refrained from
opining on questions presented to the courts for resolution. The Attorney
General has stated, for example:
     [T]his Department has uniformly refused to consider any ques­
     tions that have been committed to judicial review. To do so might
     bring this Department into conflict with a Judicial tribunal, and
     this has been held to be an adequate reason for a refusal to give an
     official opinion. [24 Op. A tt’y Gen. 59, 60 (1902).]

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

                                        John M. Harm on
                                  Assistant A ttorney General
                                                Office o f Legal Counsel




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