raised by the Department itself or by private counsel retained by the Department? ANSWER See answer to question No. 140, above. QUESTION NO. 144 With respect to the federal employees who are now being represented by the Department or by private counsel retained by the Department, to what extent was the Department's judgment that such employees were acting within the scope of their official duties contingent upon its judgment that these employees can successfully raise a defense; (a) of official immunity; (b) of mistake of law or of good faith belief in legality; (c) in a case where no warrant has been obtained that the President or the Attorney General has authorized an electronic surveillance; (d) notwithstanding Bivens, that no damages may be assessed against them on the basis of their violation of a citizen's constitutional rights; (e) that the law applicable to their activity has changed subsequent to their acts? ANSWER The determination that an employee was acting within the scope of his employment is based on factual considerations set forth in the answer to question No. 44, supra. While defenses to liability may become apparent during a review of the factual considerations, they do not form the basis by the Department for the determination. QUESTION NO. 145 In determining whether a federal employee was acting within the scope of his or her employment, does the Department take the position that the holding of the court in Zweibon v. Mitchell, 516 F.2d 594, that a warrant must be obtained before a wiretap can be installed on a domestic organization, is applicable law? ANSWER The holding of the court in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), has not been considered to date in deciding whether a federal employee was acting within the scope of his employment. QUESTION NO. 146. Does the decision of the Department's Criminal Division to prosecute or not to prosecute federal employees involved in civil suits depend in whole or in part on the Criminal Division's or the Department's belief that such employees may successfully raise defenses of mistake of law or of a good faith belief legality in such criminal case? ANSWER A variety of factors are considered in deciding whether to prosecute, including an assessment of any available evidence indicating whether the defendant has the requisite intent. Thus, mistake of law or good faith belief in the legality of the act would be considered by the prosecutor in the exercise of prosecutorial discretion. QUESTION NO. 147 Have the Civil and Criminal Divisions formally consulted with one another regarding their respective positions on the existence or validity of such defenses or in any way coordinated their legal positions on these legal issues? ANSWER No. The Civil Division has not advanced these defenses in its litigation to date. QUESTION NO. 148 Does the successful raising by the Civil Division of defenses in civil cases of mistake of law or good faith belief in legality make it more difficult for the Criminal division successfully to prosecute a federal employee who may raise the same defenses in a criminal case? ANSWER We have had no experience in this area to date. If both the Civil and Criminal Divisions take the position that defenses of mistake of law and of a good faith belief in legality are proper defenses, does it become both more likely that federal employees will be defended by the Civil Division and less likely that they will be prosecuted by the Criminal Division? ANSWER If the Criminal and Civil Divisions conclude that certain defenses are proper, the Civil Division would, absent other factors, defend the employee, and the Criminal Division, absent other factors, would not prosecute the defendant for the same actions. 21-221 - 78 - 25 Departmental representation of officers and employees of the Executive Branch in Congressional proceedings can arise under two circumstances. Occasionally, the Department will represent such employees when they are called to testify in their official capacity before a Congressional Committee. Generally, the General Counsel's office of the employee's department or agency will represent the employee during this type of proceeding. However, on occasion, it is appropriate for the Department to represent the employee. For example, where the expected subject matter of the testimony relates to matters currently under litigation in an action being handled by the Department, the Department might be called upon to represent the employee at the congressional hearing and would do so in an appropriate instance. In addition, the Department represents officers and employees of the Executive Branch when subpoenaed nominally in their individual capacity in congressional proceedings under the same circumstances and utilizing the same procedures as the Department represents such officers and employees in civil proceedings. See the Attorney General's Order No. 683-77. Has the Department ever retained private counsel to represent an officer or employee of the executive branch or an independent agency in a Congressional proceeding? ANSWER Yes. For example, the Department did hire private counsel for present and former CIA employees in connection with the hearings of the Senate Select Committee on Intelligence regarding the CIA mail-intercept program. QUESTION 152 To what extent does the Department itself represent executive branch officers and employees, other than officers and employees of the Justice Department, in Congressional proceedings? ANSWER See answer to No. 150. QUESTION 153 Does the Department represent officers and employees of the executive branch in Congressional proceedings only when requested to do so? ANSWER Yes. For officers and employees subpoenaed in their individual capacity, see Attorney General's Order No. 683-77, $50.15(a)(1). QUESTION 154 Do departments other than the Justice Department have the authority to represent their own officers or employees in Congressional proceedings? |