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CONTENTS

Introduction by Senator James Abourezk.

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1 See also exhibit 13 at p. 195; exhibit 26 at pp. 312-321 (questions 1-19); exhibit 28 at pp. 400-401 (question
1); exhibits 31-38 at pp. 413-506; and exhibits 72 to 80.

NOTE.-This report was prepared by staff and has neither been reviewed nor approved by the members

of the committee.

APPROPRIATIONS TO PAY FOR PRIVATE LEGAL COUNSEL

JUDICIARY COMMITTEE REVIEW

Exhibit 25: Letter from Senator James Abourezk to Barbara Allen Babcock,
Assistant Attorney General-Civil Division, July 13, 1977-----
Attachments to July 13, 1977, letter:

Documents to which committee needs access and list to compile.
Committee questions_

Authority for Department order (questions 1-19).

Scope of the order (questions 20-30).

Interpretation and administration of the Department order

Page

277

279

280

280

282

(questions 31–134)..........

284

Legal standards (questions 135–149) .

300

Congressional proceedings (questions 150-167).
Immunized employees (questions 168-169)---.

304

307

Exhibit 26: Letter from Barbara Allen Babcock to Senator James Abourezk,

October 4, 1977.

308

Attachments to October 4, 1977, letter:

Answers to questions on representation of Federal employees sub-
mitted by the Senate committee..

Authority for Department order (questions 1-19).
Scope of the order (questions 20-30) –

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Tab A: Department memoranda on which the Attorney General's
Order No. 683-77 and revised order are based (See exhibits 6,
8, and 10)__-

381

Tab B: Court pleadings and transcripts in cases where the issue
of private counsel has been raised (See exhibit 11)..
Tab C: Correspondence between the Department of Justice and
retained private counsel regarding the terms of their retention
(See exhibit 9) _ _ _

382

383

Tab D: Department memoranda on 1977 supplemental budget
request to pay private counsel..

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Exhibit 27: Letter from Senator James Abourezk to Barbara Allen Babcock,
Assistant Attorney General-Civil Division, October 12, 1977.
Attachment to October 12, 1977, letter:

Exhibit 28: Letter from Barbara Allen Babcock, Assistant Attorney
General-Civil Division, to Senator James Abourezk, December 16, 1977_
Attachments to December 16, 1977, letter:

Answers to follow-up and additional questions..
Documents submitted:

Memorandum of Rex E. Lee of April 16, 1976 (See exhibit 5)_
Order in D.N.C. v. McCord (August 9, 1972).

Exhibit 29: Letter of Senator James Abourezk to Barbara Allen Babcock,
Assistant Attorney General-Civil Division, December 22, 1977-
Exhibit 30: Letter of Barbara Allen Babcock, Assistant Attorney General-
Civil Division, to Senator James Abourezk, February 7, 1978____

STATUTORY AUTHORITY FOR ATTORNEY GENERAL'S Order 683-77 1
Exhibit 31: Committee staff memorandum on "Statutory Authority for
Justice Department Hiring of Private Counsel”.
Exhibit 32: Letter of Senator James Abourezk to Gilbert Gude, Director,
Congressional Research Service, November 11, 1977 (see exhibit 34)_
Exhibit 33: Letter of Senator James Abourezk to Elmer B. Staats, Comp-
troller General, November 11, 1977 (see exhibit 37)__

1054

413

540

452

1 See memorandum from Antonin Scalia, Assistant Attorney General-Office of Legal Counsel, regarding "Authority for Employment of Outside Counsel," March 4, 1976 (exhibit 3); memorandum of John M. Harmon, Assistant Attorney General-Office of Legal Counsel, to Irving Jaffe, Deputy Assistant Attorney General-Civil Division, regarding "Authority for Retaining Outside Legal Counsel," February 18, 1977 (exhibit 13 at pages 195): Department answers to committee questions 1-19 (exhibit 26 at pages 312-321); Department answers to followup question 1 (exhibit 28 at pages 400-401); and exhibits 72 through 80.

Exhibit 34: Memorandum from American Law Division to Senator James
Abourezk regarding "Authority of the Department of Justice to Retain
Private Counsel to Represent the Interests of the United States,"
December 21, 19771__

Exhibit 35: Letter of Senator James Abourezk to Barbara Allen Babcock,
Assistant Attorney General-Civil Division, January 2, 1978_.
Exhibit 36: Letter from Barbara Allen Babcock, Assistant Attorney Gen-
eral-Civil Division, to Senator James Abourezk, March 14, 19782____
Attachments to March 14, 1978, letter:

Page

454

493

1055

1056

Memorandum of John M. Harmon, Assistant Attorney General-
Office of Legal Counsel, to Barbara Allen Babcock regarding
"Authority for employment of outside counsel," March 10,
1978 3
Memorandum of John M. Harmon to Irving Jaffe regarding
"Authority for Retaining Outside Counsel," February 18, 1977- 1060
Letter of Attorney General Edward H. Levi to Congressman
Peter W. Rodino, December 24, 1975-

1063

Exhibit 37: Decision of the Comptroller General on Justice Department Authority to Retain Private Legal Counsel, April 12, 1978 (B-130441) * 1066 Exhibit 38: Decision of the Comptroller General on "Payment of Damages, Costs, and Private Legal Expenses of Government Officers and Employees Who Are Sued Under Section 7217 of the Internal Revenue Code of 1954," May 16, 1977 (B-137762 and B-143673).

494

GENERAL DOCUMENTS ON ATTORNEY GENERAL'S ORDER 683-77 Exhibit 39: Address of Harold R. Tyler, Deputy Attorney General, on "Proper Representation of Currently Unpopular Litigants-Present and Former Government Officials." January 30, 1976. Exhibit 40: Report of the Comptroller General of the United States, "Law Suits Against the Government Relating to a Bill to Amend the Privacy Act of 1974," May 6, 1977 (B-130441)

LEGAL COMMENTARY AND COURT CASES ON OFFICIAL IMMUNITIES Exhibit 41: Leon Friedman, "The Good Faith Defense in Constitutional Litigation," 5 Hofstra Law Review 501 (Spring 1977)--

307

518

581

Exhibit 42: Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971)____

625

Exhibit 43: Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 456 F.2d 1339 (2d Cir. 1972).

668

Exhibit 44: Scheuer v. Rhodes, 416 U.S. 232 (1974).

679

698

761

792

Exhibit 45: United States v. Barker, 514 F.2d 208 (D.C. Cir. 1975)-
Exhibit 46: United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976)
Exhibit 47: United States v. Barker, 546 F.2d 940 (D.C. Cir. 1976)-
Exhibit 48: Memorandum from American Law Division to Senate Sub-
committee on Administrative Practice and Procedure on "Good Faith,
Reasonable Reliance on Apparent Authority as a Defense to Criminal
Prosecution and Civil Liability of Government Officials Generally,'
July 7, 1977-

AMENDMENTS TO THE FEDERAL TORT CLAIMS ACT

826

Exhibit 49: Legislative History of H.R. 8245, Public Law 93-253, 88 Stat. 50 (amendment of 28 U.S.C. 2680 (h)).

853

Exhibit 50: Senate Report 93-588 on H.R. 8245 (amendment of 28 U.S.C. 2680 (h))_____

855

Exhibit 51: House Debate on H.R. 8245 (amendment of 28 U.S.C. 2680 (h))____

862

Exhibit 52: Jack Borger, Mark Gitenstein, Paul R. Verkuil, "The Federal
Tort Claims Act Intentional Torts Amendment: An Interpretative
Analysis," 54 North Carolina Law Review 497 (April 1976).

868

1 See exhibits 32, 72-73, and 75-76.

2 See exhibits 35 and 72-73.

3 See exhibits 72 to 74.

See exhibits 33 and 75 to 80.

Exhibit 53: Recommendation 91 of the Select Committee to Study Govern-
mental Operations With Respect to Intelligence Activities-
Exhibit 54: Letter from Attorney General Griffin Bell to the Vice President,
September 16, 1977__

Exhibit 55: S. 2117, Federal Tort Claims Act Amendments_

LISTS OF CASES TO WHICH ATTORNEY GENERAL'S
Order 683-77 HAS BEEN APPLIED 1

Exhibit 56: Department list of cases between May 42 and July 14, 1977,
in which private counsel had been retained_.

Page

916

920

926

935

Exhibit 57: Cumulative Department list of cases in which private counsel had been retained, as of October 20, 1977...

936

Exhibit 58: Department list of cases between May 42 and November 11, 1977, in which private counsel had been retained__

Exhibit 59: Department list of cases between May 42 and December 28,
1977, in which private counsel had been retained.
Exhibit 60: Department list of cases pending against certain named
officials 3

939

941

944

JUSTICE DEPARTMENT PROSECUTION OF FEDERAL EMPLOYEES Exhibit 61: Justice Department press release and report on mail opening investigation, January 14, 1977-

951

Exhibit 62: Justice Department press release on Kearney indictment,
April 7, 1977_ _ _.

1009

Exhibit 63: News article on Kearney indictment, New York Times, April 8, 1977_

1013

Exhibit 64: News article on Kearney indictment, Washington Post, April 8, 1977

1014

Exhibit 65: Commentary on Kearney indictment, Washington Star, May 26, 1977_

1015

Exhibit 66: Commentary on Kearney indictment, Washington Post, June 13, 1977_

1016

Exhibit 67: Materials released by the Justice Department on Helms case,
October 31, 1977..........

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(5) Transcript of Helms press statements..

1048

Exhibit 68: News article on Helms case, New York Times, November 1, 1977. Exhibit 69: News article on Helms case, Washington Post, November 1, 1977__.

1049

1050

Exhibit 70: Commentary on Helms case, New York Times, November 1,

1977

1052

Exhibit 71: Commentary on Helms case, Washington Post, November 2, 1977

1053

FURTHER MATERIALS ON STATUTORY AUTHORITY FOR ATTORNEY GENERAL'S ORDER

683-77*

Exhibit 72: Memorandum of subcommittee requesting Congressional Research Service review of "Department of Justice Memorandum" of March 10, 1978 (attachment to exhibit 36), March 24, 1978____

1071

1 See additional lists in exhibit 10 at pages 138 to 149; exhibit 13 at pages 214 to 224; and exhibit 40 at pages 535 to 549 and 550 to 558.

2 The Supplemental Appropriations Act for fiscal 1977 (exhibit 19) was signed into law on May 4, 1977. The language in the Conference Report on the Supplemental Appropriations Act (exhibit 18) lin iting the authority of the Department to retain new private counsel pending a review of the Attorney General's order by the House and Senate Judiciary Committees went into effect on that date. By letter of June 11, 1977, (exhibit 23) the Department was given interim authority by the Judiciary Committee to retain new private legal counsel pending completion of this review on the condition that the Department inform the committee of its actions. Exhibits 56, 57, 58, and 59 were provided by the Department to the committee pursuant to this agreement.

3 See request for list in exhibit 25 at p. 279. See also exhibit 26 at p. 308 and exhibit 27 at p. 390. See exhibit 30 at p. 1054.

See exhibit 3; exhibit 13 at page 195; exhibit 26 at pages 312-321; exhibit 28 at pages 400-401; and exhibits 31 to 38.

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