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If so, what statutory authority would authorize such reimbursement?

ANSWER

[GAO opinion].

QUESTION NO. 131

See answer to Questions No. 5 and 6, supra.

Could the payment of such fees undermine the morale of the
Department attorneys involved in the criminal proceeding?

ANSWER

Not in our opinion.

QUESTION NO. 132

Under what circumstances can the Department or the Executive
Branch pay damages assessed against an executive branch

employee held to have acted outside the scope of his or her
employment?

ANSWER

Only pursuant to the enactment of a private bill by the
Congress. [See GAO opinion].

QUESTION NO. 133

If the Department represents or retains private counsel to represent a federal employee and such employee is held liable for having performed acts outside the scope of his or her employment, is there any basis for the Department securing from the employee reimbursement for the costs of such representation?

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In cases where the United States, any agency, or any officer
in his or her official capacity is also named as a defendant
will the Department retain private counsel if, in representing
the United States or such agency or officer, positions will

be asserted which conflict with positions taken by the
employee sued in his or her individual capacity?

ANSWER

Yes, but only to represent the employee in his individual capacity.

LEGAL STANDARDS

QUESTION NO. 135

When there is a conflict between the Department's responsibility to preserve a system of accountability for executive branch employees and its responsibility to defend the

employees of the executive branch, which responsibility

takes precedence?

ANSWER

Neither takes precedence; the furnishing of private counsel

presupposes that no federal criminal indictment is being

sought and does not preclude the employing agency from instituting disciplinary proceedings against the employee.

QUESTION NO. 136

Does the Department take the position that a defense of mistake of law such as was raised in the two Barker cases, 514 F.2d 208 and 546 F.2d 940, or defense of `a good faith

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belief in legality such as was raised in the first Erlichman

case, 546 F.2d 910, exists as a matter of law in a civil

case against federal employees accused with depriving

citizens of their constitutional rights, and, if so, on what does the Department base that position?V

ANSWER

So far as we are aware, the availability of these defenses in a civil suit has never been ruled upon nor have we ever had occasion to take a position on this question.

QUESTION NO. 137

Does the Department take the position that its raising such defenses on behalf of federal employees in civil cases alleging deprivation of constitutional rights is in the public interest, and, if so, on what does the Department base that position?

ANSWER

See answer to question 136 above.

QUESTION NO. 138

In his concurring opinion in the Erlichman case, 546 F.2d 910, at 935, Judge Leventhal concluded that the assertion by "the Justice Department, the law department of the Executive Branch" of a defense such as that advanced by Erlichman which is "an exception to settled doctrine may lead to an assumption by highly placed officials that the settled doctrine is now 'eroded'" and that "the very assertion of the exception by the Justice Department accomplishes some

1 See Barker and Erlichman cases in exhibits 45, 46, and 47.

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diminution of the sense of privacy of all." Does the

Department agree with Judge Leventhal's position and, if

not, why not?V

ANSWER

It has not been necessary for the Department of Justice to consider this question in civil litigation since the above

referenced opinion was decided.

QUESTION NO. 139

Does the Department still adhere to the positions taken in its amicus brief filed in the Erlichman case and, if not, how would the Department now depart from those positions?

ANSWER

See answer to question 138 above.

QUESTION NO. 140

If the Department were to successfully assert the defense of
mistake of law or of a good faith belief in legality in a
case against an executive branch employee accused of violating

a citizen's consitutional rights, would it then be more
difficult for the Department to hold executive branch officers
and employees accountable for violations of citizens constitutional
rights and, if not, why not?

ANSWER

While it is difficult to form an opinion based on this hypothetical, it is believed that internal disciplinary procedures and criminal sanctions are available means for protecting such constitutional rights.

1 See exhibit 46 at p. 786.

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QUESTION NO. 141

If in order to defend a federal employee, the Department would need to raise defenses which, if successful, would make it more difficult for the Department to hold executive branch officers and employees accountable for violations of citizens' constituional rights would the Department continue to represent the employee and raise such defense?

ANSWER

See answer to question 140, above.

QUESTION NO. 142

If the Department finds it is not in the public interest for the Department itself to represent an executive branch officer or employee because to do so would establish the existence of defenses not in the public interest, is it nonetheless in the public interest for the Department to retain private counsel who would raise such defenses, and, if so, why is it?

ANSWER

Yes, if to do so would act to preserve the government's interest in the morale of its employees.

QUESTION NO 143

In terms of minimizing any adverse impact on the Department's ability to hold executive branch officers and employees accountable for any violations of a citizen's constitutional rights, would it make any difference whether defenses of mistake of law or of a good faith belief in legality are

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