ney General. On April 12, 1978, the General Accounting Office issued its opinion on the issue of the Department's statutory authority. Exhibit 37 at page 1066. Although the opinion is rather confusing, in subsequent clarification of the opinion at the request of the committee (see exhibits 77 through 80 at pages 1106 to 1120), the Comptroller General held that the United States has an "interest" within the meaning of 28 U.S.C. 516-517 in defending Federal employees and that it is proper for the Department to retain private counsel under the terms of the order to protect that interest.

The committee subsequently requested the Congressional Research Service to review the GAO opinion. Exhibit 75 at page 1085. In a May 12, 1978, memorandum (hereinafter "Second C.R.S. Memo") the May 12, 1978, memorandum (hereinafter "Second C.R.S. Memo") the and based on "tenuous statutory authority" and reiterated its conclusion that the Department has no authority. Exhibit 76 at page 1087.

The committee staff and the two C.R.S. legal memoranda start from the premise that even if sections 516 and 517 support the Department statutory "interest" in litigation involving Federal employees, they are not dispositive of whether the Department has statutory authority to retain private legal counsel to represent that interest. In fact the legislative history of 5 U.S.C. 3106, 28 U.S.C. 515, and 28 U.S.C. 543, cited extensively in these legal memoranda, demonstrates that the Department has statutory authority to retain private counsel only if such counsel is under the control and supervision of the Attorney General.

Specifically, section 3106 contains a general prohibition against any Department-including the Department of Justice-employing "an attorney or counsel for the conduct of litigation in which the United States, an agency, or employee thereof is a party, or is interested * * * *, except as otherwise authorized by law ***"

Neither sections 516 or 517 can be construed to provide this authorization to retain private counsel as neither makes any reference to private counsel involvement in litigation in which the United States is interested. Indeed section 516 refers only to "officers of the Department of Justice, under the direction of the Attorney General" and section 517 refers only to the "Solicitor General or any officer of the Department of Justice ***." Furthermore, section 519 makes it clear that "the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party

The two sections in title 28 which do satisfy the requirement in 5 U.S.C. 3106 both explicitly empower the Attorney General to retain "special appointed" counsel. They are sections 515 (b) and 543. Section 515(b) provides that a private attorney may be specially retained by Department of Justice but must be commissioned either as a special assistant to the Attorney General or as a "special attorney," and must take the oath required by law. Such attorneys may then, when specifically directed by the Attorney General, conduct any kind of legal proceeding which a regular U.S. attorney is authorized by law to conduct. The second provision, 28 U.S.C. 543, authorizes the Attorney General to appoint private attorneys to assist U.S. attorneys.

Attorneys appointed under these two sections are subject to removal by the Attorney General and are under his supervision and control to the same extent as a regular staff attorney. The Attorney General's supervisory authority is made clear in 28 U.S.C. 519 which mandates the Attorney General to "supervise" all litigation to which the United States, an agency or officer thereof is a party to and "direct" all U.S. attorneys, assistant U.S. attorneys and "special attorneys" appointed under 28 U.S.C. 543 in the discharge of their duties.

The committee staff and two C.R.S. memoranda then focus on the question of whether the legislative history of sections 515(b) or 543 indicates that the Attorney General's explicit authority under these. two sections to hire private counsel is meant to preclude any other statutory authority for the Department retaining private counsel. If so, it is unnecessary to determine whether-in satisfaction of the requirement of 5 U.S.C. 3106-sections 516 and 517 can provide any implied authority for the Department to retain private counsel.

In fact, all three of these memoranda conclude that the legislative history of sections 515 (b) and 543 demonstrates that these two sections provide the exclusive terms under which private counsel can be retained by the Department and that private counsel can only be retained if they are under the control and supervision of the Attorney General. The legislative history of sections 515 and 543 and the relationship of these two sections to 5 U.S.C. 3106 is somewhat confusing. Until 1966, the United States Code, and prior to 1926 the Revised Statutes, contained an express provision stating that "no compensation shall hereafter be allowed to any person, besides the respective district attorneys ***, except in cases specially authorized by law" and "every attorney*** specially retained specially retained *** shall receive a commission *** as a special assistant to the Attorney General *** and shall take the oath required by law ***. See 16 stat. 162, sections 189, 361, 362–363, 365, and 366 of the Revised Statutes, 34 stat. 816, sections 49, 310, 312, 314, and 315 of title 5 of the 1926 United States Code and section 503 of the 1948 United States Code.

In 1966, these provisions-which prohibited compensation from being given to any private counsel not commissioned as a "special assistant to the Attorney General"-were codified in section 3106. In the process of this codification, however, the express prohibition against compensation to private attorneys other than "special assistants" was not carried forward in section 3106. The committee notes on the codification, however, make it clear that the language in section. 3106-"except as provided by law"-is meant to preclude the hiring of private counsel except under the authority of sections 515 or 543. In any event it is clear that the 1966 codification did not change any substantive prohibitions contained in the United States Code prior to the codification.

The restrictive nature of sections 3106 and 515 and 543 has been consistently reflected in the decisions of the courts, both prior to and subsequent to the 1966 codification.

The committee forwarded the committee staff and CRS memorandum to the Justice Department for comment. Exhibit 35 at page 493. In a memorandum of March 10, 1978, Assistant Attorney General Harmon reiterated the conclusion reached in his February 18, 1977, memorandum that the Department has authority to retain private counsel under the terms of the order. See exhibit 36 at page 1056.

In part, the March 10, 1978, memorandum argues that by acquiescing in the Department's private counsel program and in appropriating funds which it knew the Department would expend for private counsel, Congress has "ratified" the Department's authority. The committee promptly notified the appropriate subcommittee chairman of the Senate Appropriations Committee about the Department's ratification argument (exhibit 74 at page 1083) and requested that the Congressional Research Service review the March 10 memorandum (exhibit 72 at page 1071). CRS found the Department's ratification argument to be utterly without merit. Exhibit 73 at page 1074.

The Justice Department's March 10, 1978, memorandum does acknowledge that sections 515 and 543 provide "the only means expressly authorized" for carrying out the responsibility placed on the Department by sections 516 and 517. See exhibit 36 at page 1061. The memorandum, however, fails to address the central conclusion of the committee staff and CRS memoranda that read sections 3106, 515 and 543 as expressly precluding retention of private counsel except under the terms provided in sections 515 and 543.

The GAO opinion is hardly more responsive to this issue. Despite the fact that the 1870 Justice Department Act contains languagequoted above-which expressly prohibits retention of independent private counsel, GAO asserts that nothing in "the express language of [sections 515 and 543] indicates that these sections are the sole and exclusive authority for the Attorney General to retain private legal counsel." Exhibit 37 at 1068. As the second CRS memorandum points out, however, "the dominant theme that plainly runs through these provisions is that the Attorney General is to have and maintain ultimate control and supervision over how litigation involving the United States and its interests shall be conducted and over those who conduct it." Exhibit 76 at page 1095. The second CRS memorandum then analyzes GAO's suggestion that the Department has implied authority to retain private counsel. The memorandum finds that the possible sources of implied authority "seem to point to the opposite result reached by the GAO." Exhibit 76 at page 1104. The memorandum concludes that only Congress can delegate the authority to the Department and that a request to Congress for such authority "would appear to be an appropriate method of resolution of the controversy." Exhibit 76 at page 1105.

The complex legislative history of these three sections of the United States Code only partially explains the reluctance of the Department and GAO to acknowledge the absence of statutory authority for these contracts with private counsel. The Department has a strong commitment to representing Federal employees. In addition, at the time the Office of Legal Counsel prepared its two memorandums on the Department's statutory authority, the order expressly limited the independence of private counsel. Only the revised order provides for complete independence of private counsel. GAO in turn focuses on its perception of the importance of representing Federal employees.

As the legislative history makes clear, however, private counsel can be retained only when they are under the supervision and control of the Department. It is the independence of private counsel which violates the restrictions contained in sections 3106, 515, and 543. Unfortunately, it is also this independence upon which the Department private counsel program is now premised.

B. INDEPENDENCE OF PRIVATE COUNSEL

In order to avoid the conflict in the Department itself representing a Federal employee in a civil suit who is simultaneously under investigation for criminal activity, any private counsel retained by the Department must of necessity, be completely independent of Department supervision and control. Independent private counsel are therefore free to raise defenses and make arguments on behalf of their Federal employee clients which-although in the interests of the client-conflict with or even oppose a position maintained by the United States. The Department has specifically stated that it will not terminate a retainer of a private counsel who proceeds to raise such defenses or makes such arguments. See exhibit 26 at page 357. (Question 111.)

The independence of Government sponsored private counsel has potentially serious consequences for the public interest depending on: (1) the types of defenses and arguments which private counsel will raise on behalf of his client and (2) the types of conduct which private counsel will argue is legal.

1. LEGAL DEFENSES AND ARGUMENTS MADE ON BEHALF OF FEDERAL

EMPLOYEES

There is substantial confusion in the law defining defenses available to an officer or employee of the Federal Government in a civil suit alleging deprivation of constitutional rights.

There are basically three lines of cases describing those kinds of defenses: (1) in criminal cases a defense of a good faith reliance upon apparent authority (United States v. Barker, 546 F. 2d 940) or of a good faith belief in the legality of the acts committed (United States v. Ehrlichman 546 F. 2d 910); (2) in civil cases against Government officials, other than law enforcement officials, a defense of abso'ute immunity (Barr v. Matteo, 360 U.S. 564); and (3) in civil cases alleging constitutional violations or against law enforcement officers, a defense of good faith (Bivens v. Six Unknown Named Agents of the FBI, 456 F. 2d 1339 and Zweibon v. Mitchell, 516 F. 2d 594).

The applicability of the Barker/Ehrlichman, absolute immunity, and good faith defenses in any given case is often the crucial issue in determining accountability and whether aggrieved parties will receive any judgment to compensate them for violations of their constitutional rights. To the extent that these defenses are recognized or extended, executive branch officials are less accountable-at least in court-for their actions. The delicate balance between the Government's responsibility to defend employees and insuring individual accountability is directly affected by the kinds of defenses which are recognized in the

courts.

Substantial movement has occurred in court precedent on the availability of these three kinds of defenses. The current state of the case law demonstrates that while there is a substantial threat to the public interest in recognition of the Barker/Ehrlichman defenses, absolute and qualified good faith immunity have become well established.

a. Barker/Ehrlichman Defenses

In the Ehrlichman case (exhibit 46 at pages 761-791) five persons were indicted for conspiring to break in to the office of Dr. Fielding—

without a warrant-to obtain the doctor's medical records on Daniel Ellsberg. As a matter of law the district court ruled that defendants could not raise a defense that they lacked the specific intent necessary to violate a criminal statute because they had a good faith, reasonable belief that the break-in was legal and justified in the national interest, 376 F. Supp. 29 (D.D.C. 1974). The district court characterized the defense as one of "mistake of law" and held that "it is well established that a mistake of law is no defense in a conspiracy case to the knowing performance of acts which, like the unauthorized entry and search at issue here, are malum in se." Id. at page 35.

The limits of a mistake of law were carefully specified by the district court as follows:

Mistake of law may also excuse an act if it resulted from good faith reliance upon a court order or decision, United States v. Mancuso, 139 F. 2d 90 (3d Cir. 1943); State v. O'Neil, 147 Iowa 513, 126 N.W. 454 (1910), or upon the legal advice of an executive officer charged with interpreting or enforcing the law in question. See Cox v. Louisiana, 379 U.S. 559, 85 S. Ct. 476. 13 L. Ed. 2d 487 (1965); Raley v. Ohio, 360 U.S. 423, 79 S. Ct. 1257, 3 L. Ed. 2d 1344 (1959). This principle however, cannot be stretched to encompass a mistake based upon the assurances of an alleged co-conspirator with regard to the criminality of acts that are malum in se. See United States v. Konovsky, 202 F. 2d 721, 730-731 (7th Cir. 1953) (obedience to the orders of a superior does not necessarily negate the specific intent requirement set forth in Screws). Id.

This ruling came on defendants motions to discover evidence to substantiate their defense.

Upon their conviction for the break-in the defendants appealed, alleging that the court had improperly denied their attempt to introduce evidence on their good faith defense and had improperly instructed the jury that such defense was not available. The court of appeals affirmed the defendants convictions in an opinion written by Judge Wilkey; a concurring opinion was filed by Judges Leventhal and Merhige. See exhibit 46.

Judge Wilkey's opinion focuses on whether the mens rea required to commit the crime of which Ehrlichman was charged was a "specific intent" which does not involve knowledge of illegality or whether, in addition, the specific intent also had to involve an intention to violate the law or an absence of a reasonable belief that the action was lawful. In the latter type of case a court must determine both that there existed a clearly delineated and plainly applicable constitutional right and that the defendant purposefully deprived a citizen of his enjoyment of that right. Judge Wilkey held that the particular statute, under which the defendants had been indicted, 18 U.S.C. 241, required the latter type of specific intent, that is one involving an intent to commit acts which deprive a citizen of clearly defined constitutional rights, but he also held that this does not amount to a requirement that a defendant directly "recognize the unlawfulness of his acts." Exhibit 46 at page 773.

Applying this test to the facts of Ehrlichman's appeal, Judge Wilkey found that the proposed defense could be raised only in a case in