Criminal Division

*In this case, trial is inevitable, and already over 50 FBI agents have been involved in the discovery process.

Civil Division

Kipperman v. McCone, et al. Driver v. Helms, et al.

Grove Press v. Central Intelligence Agency, et al.

Exhibit 27: Abourezk Letter of October 12, 1977, with one

In further response to your October 4, 1977, letter on the Department's
policy and practice of representing federal employees, the Committee has
now reviewed your answers to its questions and the memoranda you have
provided.

As stated earlier, the Committee is impressed with the effort the
Department has expended in answering the Committee's questions. There
are, however, a few follow-up questions which will clarify the Department's
answers and a few questions which arise from the memoranda you supplied.
These questions are attached.

Most of these questions seek to clarify the types of legal arguments
which the Department is willing to make in defending federal employees,
and specifically, as to whether the Department is willing to raise "Barker"
and "Erlichman" type defenses. Evidently the Department has not yet had to
face, in a litigation context, the question of whether it would raise these
arguments. The answers to these questions are necessary if the Committee
is to properly evaluate the public policy consequences of defending federal
employees. In the Committee's judgment, the questions are not hypothetical,
but rather, involve real choices that the Department is likely to face. Of
course, since a specific factual situation can require an exception to a
litigating policy, the Department's answers to these questions will not
foreclose any future litigation decision which the Department may make in
any given case.

With respect to the documents to which the Committee has requested access
and the list of cases which the Committee has requested be compiled, let
me suggest that we proceed in the following manner. First, the Committee
understands that since the Division only records the names of the first
three defendants listed in the complaint, the names of all FBI and CIA

Ms. Barbara Allen Babcock

October 12, 1977 - Page Two

employees will not appear. The Division can dispense with the search for these cases. However, the Department should prepare the list of cases involving the specific named individuals identified by the Committee using only the Department's file retrieval system for actions handled by the Civil Division. Second, once the list of cases involving the individuals identified by the Committee has been compiled, the Committee will review the list and will ask to see some of the court pleadings and transcripts in a very limited number of the cases. The Committee is sensitive to the burden which would be imposed on the Division were it to require, for any large number of files, the segregation of court transcripts from internal memoranda. The Committee is, however, interested in reviewing the types of arguments which the Department is making in cases covered by the Order. For this purpose, in the cases selected for review, the Committee would need only look at the complaint and any motions to dismiss or summary judgment motions filed by the Department.

The Committee would appreciate also your providing the following specific documents referred to in your answers to the Committee's questions: 1) March 4, 1976, opinion of the Assistant Attorney General of the Office of Legal Counsel; 2) Opinion of Judge Ritchey in D.N.C. v. McCord, Civil No. 1233-72 (August 9, 1972); 3) Civil Division Memorandum of April 16, 1976, commenting on the draft regulation (attachment to June 4, 1976, memo of Mary E. Wagner); 4) March 1976 Memoranda of the Assistant Attorney General for the Office of Legal Counsel regarding retention contracts; and 5) the Attorney General's January 14, 1977, report on mail openings. Please also provide copies of the following documents when they become available: 1) an ABA Opinion on ethics issues; and 2) the Opinion of the Office of Legal Counsel on the same. Your letter indicates that the Division is already processing other documents for delivery to the Committee.

In light of the extensive materials being provided to the Committee, the
Committee does not need further to press its request to see memoranda
and correspondence concerning the decision to retain private counsel in
particular cases.

The Committee should be apprised if and when the Department formally issues amendments to the January 19, 1977, Order; when the Department tentatively adopts proposed amendments (such as the revised Order or proposed changes referred to in the Department's response to question 84); or when any court challenge arises over the validity of the Order.

Finally, the Committee expects that it will continue to be notified if and when private counsel are retained by the Department.

Ms. Barbara Allen Babcock

October 12, 1977 - Page Three

Thank you again very much for your cooperation with the Committee.

Sincerely,

James Abourezk

Chairman

Subcommittee on Administrative Practice

and Procedure

Attachment (1)

[Attachment to Abourezk letter of October 12, 1977 (exhibit 27).]

FOLLOW-UP QUESTIONS

1. Follow-up on questions 1 through 6 in the Committee's July 13 letter:
Three express statutory provisions, 28 U.S.C. 515 (a), 28 U.S.C. 543,
and 28 U.S.C. 3106 concern the terms under which private counsel may
be retained, and the legislative history and court precedent interpret-
ing these provisions indicate that they were enacted to prevent the
hiring of private attorneys other than as provided therein. How can
the Department rely on general statutes which refer only to represen-
tation by "officers of the Department of Justice" (28 U.S.C. 516 and
517) and which contain no express provisions regarding hiring private
counsel to hire private counsel in a way not permitted by the express
provisions of 28 U.S.C. 515(a), 28 U.S.C. 543 and 28 U.S.C. 3106?

2.

In answering the question the Department should refer to the legislative history of Sections 515(a), 543, and 3106 and the cases cited in Question 4.

Please also explain the way Section 517--which states that it is the responsibility of "officers of the Department of Justice" (not private legal counsel) to conduct litigation in which the United States is interested--can be interpreted to override the provisions of Sections 515(a) and 543 which provide the only express authority for these interests being represented by someone other than an "officer of the Department."

Follow-up on Question 24: What kinds of suits, if any, can the

Civil Rights Division bring against federal employees?

3. Follow-up on Questions 28 and 29: When the United States is joined

as a defendant on a FTCA theory in a case in which a federal