Is the Department's policy of representing employees in Congressional proceedings the same if the proceeding involves acts in the employee's official capacity or acts in his or her individual capacity? ANSWER Generally, yes. With regard to proceedings where an employee is merely called to testify in his official capacity, see answer to No. 150. Immunized Employees QUESTION 168 Can an employee sued in his or her individual capacity for acts for which such employee has been granted immunity from criminal prosecution be represented under the Order? ANSWER It is virtually impossible to answer this question without reference to a specific set of facts. For example, immunity may be granted to an employee about whom prosecutors have no or virtually no inculpatory evidence. In such a situation only the underlying facts and not the grant of immunity itself would be material to the Department's decision to represent. In each instance in which an employee has been granted immunity from prosecution for the acts with respect to which representation is sought, the Department's decision whether to afford representation will depend, as in any other instance, on whether it is, determined that the employee 69. was acting whithin the scope of his duties and it is otherwise in the interest of the United States to represent him. QUESTION 169 If so, does the fact that an employee may be represented in a civil suit for acts for which he or she has been granted immunity play any role in the decision of whether or not to grant immunity? ANSWER No. The decision whether or not to grant immunity is made in the prosecuting divisions of the Department and not in the Civil Division, which has the primary responsibility for defending federal employees sued as individuals. TAB A DEPARTMENT MEMORANDA ON WHICH THE ATTORNEY GENERAL'S ORDER NO. 683-77 AND REVISED ORDER ARE BASED 1 Memoranda appear as exhibits 6, 8, and 10. |