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VALIDITY OF GOVERNMENT RESPONSIBILITY

Mr. SLACK. Mr. Cederberg?

Mr. CEDERBERG. The facts are that the principle of assuring that the individual employee of the Government, in the conduct of his own duty, is protected against lawsuits?

Mr. JAFFE. That is correct.

Mr. CEDERBERG. Is that the principle that has been with us for many years?

Mr. JAFFE. That is correct.

Mr. CEDERBERG. We are living in a rather unusual era now where the rash of lawsuits not only here but all over the country is greater than it ever has been in the past. We have never seen this before.

Your problem now is assuring the defense of such individuals. Every member sitting around this table can be subject to a lawsuit from an employee in our office or anything else. It is essentially your responsibility or the Government's responsibility to defend against that, right, unless it is a criminal charge against the individual? Mr. JAFFE. Then we prosecute him.

Mr. CEDERBERG. That is a pretty valid principle. Have you found any instance where the Government, through the Legal Services Corporation or some other way, is also paying for the other end of the suit?

Mr. JAFFE. We have had that in other areas, but not in this one. That circumstance was made known to the Congress. That usually occurred in those suits we had, and these were a couple of years ago, in which challenges were made to the food stamp programs. Those are the ones I remember most, in which the attorneys for the class of plaintiffs that were suing were in organizations funded by Federal funds. However, that did not present the conflict to which I am addressing my remarks because in those suits even though the Federal Government, that is the Treasury, was in a sense financing both ends of the litigation, as we do today in the public defender system, the conflict does not arise because neither the organizations suing in the food stamp programs nor the public defenders defending persons we are prosecuting have a responsibility to the same person.

The public defender is not responsible to the Attorney General. The Criminal Division and the Civil Division are. The same was true of these funded legal activities. I don't remember the terminology, but you know the organizations or the funding I am referring to. They, too, were not responsive to the Attorney General.

The Civil Division could not have instituted such a suit against the Department of Agriculture and had some other lawyers in the Department of Justice defend it. That would be a conflict.

Mr. CEDERBERG. Do you have any knowledge of how many individuals in the Government are involved in suits at the present time? I notice you have one here where the Attorney General is involved in a suit. Are there any other Cabinet members!

Mr. JAFFE. Yes.

Mr. CEDERBERG. So they are growing. You are involved in the defense of all of them?

Mr. JAFFE. That is correct.

Mr. CEDERBERG. You are trying to use in-house counsel where you can, correct?

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Mr. JAFFE. We use in-house counsel wherever we can. We strain to use in-house counsel. The highest paid lawyers in the Government get less than $20 an hour, which is a lot less than even the reasonable rates we are charged by private counsel.

Mr. GOLDBLOOM. As an example, in the mail opening litigation at least one former Postmaster General and former Attorneys General and former Directors of the CIA were made defendants in that litigation at the same time the criminal investigation was on. So there were former Cabinet officers involved.

Mr. CEDERBERG. I don't think we have any choice but to defend an individual who in the legitimate conduct of his duty was the subject of a suit. How it is done is another matter, whether it is in-house or outside counsel. If you have a conflict with your in-house problem, then you don't have any choice if you are going to defend them except an out-of-house counsel. Is that a fair statement?

Mr. JAFFE. It is a fair statement and that is the conclusion we reached.

I wish to emphasize again that we do speak of legitimate activity. When I say legitimate, I don't mean that everything we did was proper because otherwise we would have nothing to defend, but we do mean the challenged conduct is within the scope of his duties and he acted in good faith.

Before the Federal Drivers Act was enacted, we represented a driver being sued even though we knew he ran a red light or didn't stop at a stop sign. For us to say he was outside the scope of his duties would be a travesty on the duty to represent him. The thought was that he was acting within the scope of his duties, he was a driver who was driving a truck and everyone makes mistakes.

I am not talking about private counsel there. We, of course, would represent him.

Mr. CEDERBERG. Thank you.

STATUTORY AUTHORITY TO HIRE PRIVATE COUNSEL

Mr. SLACK. Mr. Jaffe, would you please insert in the record the statutory authority under which private counsel can be retained and also insert comments on your interpretation and application of the provisions in this regard?"

Mr. JAFFE. With respect to the hiring of counsel?

Mr. SLACK. That is correct.

[The information follows:]

STATUTORY AUTHORIZATION

28 U.S.C. 509 provides that "All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General. * * *" Several functions are excepted that are unrelated to this issue.

(Note. Additional information was later provided to the committee). Mr. SLACK. Could former Members of Congress be represented under this program?

Mr. JAFFE. Yes; if they are sued for work they did as a Member. That is subject to the same considerations we give to any employee. I would like to add in connection with Members of Congress, that perhaps 3 or 4 years ago, I wrote a letter to a Mr. Raymond Gooch in March of 1973, who was on the staff of the Joint Committee on

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Government Operations, in response to a question as to the circumstances and policy considerations we followed with respect to representation of Members of Congress. I think that it might be helpful if I very briefly indicated what I said then.

Under title 2 of the U.S. Code section 118, we are obliged to represent officers of the Congress. Onr interpretation of that means that it does not include Members per se when they are sued. With respect to Members of Congress and Members of the Judiciary, our policy had been-and these guidelines may change our policy had been, when requested by either a judge or a Member of Congress, to represent him in a suit whether it be in his official capacity or for money judgment if he was acting within the scope of his official duties and he was acting in that manner in good faith. Then we would defend.

There were instances in which we regarded the basis of a suit to be more political in nature, than it was a suit against a Congressman for either money damages or other relief, arising out of his official conduct.

For example, we did not represent a Congressman or Senator who was being sued by his political opponent in a primary or regular campaign for alleged violations of the franking privilege. We are now involved in a suit where the plaintiff sued the Secretary of the Treasury and the Postmaster General. We have asked the Congress to intervene because of the problems we have there. The House has. The Senate has

not.

So when I say we will represent Members of Congress, we will, but they, too, are subject to the conflict considerations that we have.

We have already begun to use private counsel fees at least for the representation of a committee of Congress. We make no distinction between a committee and an individual.

Mr. CEDERBERG. Off the record.

[Discussion off the record.]

Mr. SLACK. Back on the record.

Mrs. Burke?

Mrs. BURKE. I am not sure, Mr. Chairman. Did you put into the record order 683-77?

Mr. JAFFE. It is attached to my statement.

ORDER 683-77

Mrs. BURKE. I have two questions. One involves this policy memo. That part of the memo that says "representation in these matters is limited to State criminal proceedings, civil and congressional proceedings".

The portion I have a question about is State criminal proceedings. The second quesetion I have involves what is referred to in your statement, Mr. Jaffe, as the first kind of conflict. That is a conflict that arises primarily where the acts involved in the civil litigation are possible violations of criminal law and the Department is investigating that criminal violation and as a result there would be a conflict that would be raised.

That is the second area that I question.

Mr. JAFFE. If you are reading from my statement, I thought I was clarifying it from the statement we submitted.

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During the investigative stage we provide in-house representation. The only time we go to private counsel is when the defendant becomes a "target." A target means that the investigation has reached the point of beginning to focus on this individual's conduct to such a degree that the prosecuting people at least are thinking of indictment. The investigative stage alone does not justify private counsel. It presents problems, but it does not justify private counsel under the guidelines because we are trying to avoid it wherever we think we can, consistent with ethics. If the person becomes a target, then the investigation is being directed toward him as an individual and we feel that we must drop out.

But until he is indicted, between the time he is a target and the time that he is either indicted or not indicted, we hire private counsel. When he is indicted, we do not pay the private counsel thereafter for the representation in the civil suit. We cannot because we are on the opposite side of the fence. I think I have answered your question.

If I may address myself to the State criminal law, we do and have always provided representation for a Federal official who is charged with the violation of a State criminal law, if the conduct that is the basis for the criminal charge occurred in the performance of his duty. I could illustrate that if you will.

In Louisiana a few years ago, two FBI agents attempting to make an arrest got into a scuffle with the persons they were arresting. A gun went off and the object of the arrest was killed. The State indicted the officer for first degree murder. We represented him in that case. The indictment was dismissed. Our determination was that he had acted quite properly within the scope of his employment. We were also satisfied that a crime had not been committed.

Se we provided that representation. That was in-house. That was not private counsel. We represented him. We had similar situations where other criminal charges were brought by a State against an employee who was acting within the scope of his duties, in good faith. We have tendered the representation and we have represented.

We have one going forward now in San Diego, a State criminal prosecution.

REPRESENTATION IN BURGLARIES

Mrs. BURKE. Have you made a determination whether or not you will have representation in-house or private counsel in burglary cases if FBI officials are alleged to be involved?

Mr. JAFFE. In the Socialist Workers Party case where they do allege burglaries, we have provided private counsel.

Mrs. BURKE. At both stages, criminal and civil?

Mr. JAFFE. We don't provide counsel at the criminal stage. We are speaking solely of civil damage suits, State criminal prosecutions or congressional appearances. We will provide counsel, usually departmental attorneys, but occasionally private counsel.

Mrs. BURKE. The reason I mentioned that was because I assume the burglary would be a State prosecution.

Mr. JAFFE. No; it is a Federal prosecution.

Mrs. BURKE. Thank you.

Mr. SLACK. Any questions, Mr. Early?

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SPECIAL DEFENSE OFFICE

Mr. EARLY. Is there a possibility of setting up a special defense office, you know, an opposite of the Watergate Special Prosecutors office?

Mr. JAFFE. That would not help because the Special Prosecutor is also responsible to the Attorney General. He has been given a certain amount of freedom, but the chain of authority is there.

Mr. EARLY. Wouldn't we be able to legislate to separate that responsibility? Wouldn't we be better off with a special office that was handling this type of problem rather than a private attorney?

Mr. JAFFE. I suggest that might present some questions that might even have constitutional dimensions because the enforcement of the law, which this is, is in the executive branch. I presume that a separate office apart from the Attorney General responsive to the President could be established, but I wonder about the wisdom of separating law enforcement functions from legal services functions which are also a form of law enforcement.

Mr. EARLY. Don't you think this program brings up several constitutional questions?

Mr. JAFFE. I think they bring up none.

Mr. EARLY. Really, we don't have an obligation to provide the same counsel to everyone. We are even going to pay these different rates. Could not a defendant in one of these cases be able to suggest the Justice Department supplied him with a lawyer at $50 an hour while they supplied another party "X" with a counsel at twice that rate? Mr. JAFFE. We have not had those complaints yet.

Mr. EARLY. We have not had enough time to get them.

Mr. JAFFE. This has been going on now for over 2 years. We have not had those complaints. No one has yet complained about the quality of the representation that he is receiving. We do not hire these lawyers from the yellow pages of the telephone directory or anything of that sort. We are quite confident that the lawyers we have hired have the competence, ability, and experience to avoid that. If we do get a complaint, we will investigate it and if it is justified, we will discharge that lawyer.

Mr. EARLY. Thank you, Mr. Chairman.

[the remainder of the hearing is deleted]