(5) If a prosecuting division of the Department indicates that the employee is not the target of a criminal investigation concerning the act or acts for which he seeks representation,

then representation may be provided.

Similarly, if the

prosecuting division indicates that there is an ongoing investigation, but into a matter other than that for which representation has been requested, then representation may be provided.

(6) If the prosecuting division indicates that the employee is the target of a federal criminal investigation concerning the act or acts for which he seeks representation, the litigating division will inform the employee that no representation by Justice Department attorneys will be provided. But, if in such a case no decision to seek an indictment or issue an information has been made, a private attorney may be provided to the employee at federal expense under the procedures of $ 50.16.

(7) In any case where it is determined that Department of Justice attorneys will represent a federal employee, the litigating division will promptly inform the employee and the agency which employs him (i) that in actions where the United States, any agency, or any officer in his official capacity thereof is also named as a defendant, the Department of Justice is required by law to represent the United States and/or such agency or officer and will assert all appropriate legal positions and defenses to establish the non-liability of such agency, officer and/or the United States; (ii) that

the Department of Justice will not assert any legal position or defense deemed not to be in the interest of the United States to assert; and (iii) where appropriate, that neither the Department of Justice nor any agency of the United States Government has authority to pay or to indemnify the defendant employee for any judgment for money damages which may be rendered against such employee.

(8) If a determination not to provide representation is made, the litigating division will inform the agency and/or the employee that no representation will be provided.

(9) If conflicts exist between the legal or factual positions of various employees in the same case which make it inappropriate for a single attorney to represent them all, the employees may be separated into as many groups as is necessary to resolve the conflict problem and each group may be provided with separate representation. Some situations

may make it advisable that private representation be provided to all conflicting groups and that Justice Department attorneys be withheld so as not to prejudice particular defendants. In such situations, the procedures of $ 50.16 will apply. (10) If providing representation to the employee is otherwise determined to be appropriate but the adequate representation of the employee requires the making of an argument which conflicts with a governmental position, a private attorney may be provided to the employee at federal expense under the procedures of section 50.16.

(11) Once undertaken, representation of a federal employee under this subsection will continue until either all appropriate proceedings, including applicable appellate procedures, have ended, or until any of the bases for declining or withdrawing from representation set forth in this section is

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found to exist, including without limitation the basis that representation is not in the interest of the United States. If representation is discontinued for any reason, the representing Department attorney on the case will seek to withdraw but will ensure to the maximum extent possible that the employee is not prejudiced thereby.

(b)

Representation by Department of Justice attorneys is

not available to a federal employee whenever:

(1) The act or acts with regard to which the employee desires representation do not reasonably appear to have been performed within the scope of his employment with the federal government;

(2) The representation requested is in connection with a federal criminal proceeding in which the employee is a defendant; or is in connection with a proceeding which concerns the same subject matter as a federal criminal investigation in which the employee is a target; or (3)

It is otherwise determined by the Department that it is not in the interest of the United States to represent

the employee.

$ 50.16 Representation of Federal Employees by Private

Counsel at Federal Expense.

(a)

Representation by private counsel at federal expense is subject to the availability of funds and may be provided to a federal employee only in the instances described in

S 50.15(6), (9) and (10). Such private counsel may, in appropriate circumstances, also be utilized for the purposes set forth in $ 50.15(a) (2).

(b) Where private counsel is provided, the following pro

cedures will apply:

(1)

The Department of Justice must approve in advance any private counsel to be retained under this section.

Where national security interests may be involved, the Department of Justice will consult with the agency employing the federal defendant seeking representation.

(2)

Federal payments to private counsel for an employee will cease if the Department of Justice (i) decides to seek an indictment of or to issue an information against that employee on a federal criminal charge relating to the act or acts concerning which representation was undertaken; (ii) determines that the employee's actions do not reasonably appear to have been performed within the scope of his employment; (iii) resolves the conflict described in and tenders representation by Department of Justice attorneys; (iv) terminates the retainer with the concurrence of the employeeclient, for any reason.

(c) In any case in which the employee is not represented by a Department of Justice attorney, the Department of Justice may seek leave to intervene or appear as amicus curiae on behalf of the United States to assure adequate consideration of issues of governmental concern.

Dated:

7

Exhibit 3: Memorandum of Antonin Scalia Regarding Authority for Employment of Outside Counsel, March 4, 19761

This is in response to the first question: raised in your memorandum of January 22, 1976. The remaining three issues will be dealt with in a separate memorandum.

As indicated in your memorandum, the Department has retained private attorneys to represent certain present and former employees of the CIA, the FBI and the Postal Service, in connection with congressional hearings and civil litigation. The activities which are the subject of the hearings and the lawsuits occurred while the individuals were employed by the Federal Government. The Criminal Division has initiated investigations to determine whether those activities involved violation of Federal law. The first issue raised in your memorandum is whether the Department has authority to provide representation through contracts with private attorneys. We will address this matter in a general way, without reference to any peculiar factors which may be introduced by the particular terms of the various contracts which have been entered into or by the manner of their implementation.

Our conclusions may be summarized as follows: The determination that it is in the interest of the United States to provide private legal counsel to the individuals in question is proper. Because of the related investigations conducted by the Criminal Division, representation of the individuals by Department attorneys would present an unacceptable appearance of conflict of interest, and create a substantial potential of prejudicing effective defense of the civil cases by required withdrawal of representation in the future. In such circumstances, authority to retain private attorneys may reasonably be inferred from the functions of the Attorney General set forth in 28 U.S.C. 515-517 or from the general authority of the Attorney General, 23 G.S.C. 509,

1 Received by subcommittee on January 26, 1978. See exhibit 27 at p. 391, exhibit 28 at p. 398, exhibit 29 at p. 411, and exhibit 30 at p. 1054.