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Perhaps we are misreading the phrase in your letter. If, however, it is the Committee's intent to expand its inquiry to the extent described in your October 12, 1977 letter, I would appreciate being formally advised so that I might bring the matter to the further attention of Attorney General Bell and Assistant Attorney General Patricia Wald. Until the foregoing is clarified, I would like to defer sending the list of specified cases to the Committee, with the assurance that once we better understand each other, we will move very expeditiously to supply all necessary information.

[First attachment to Babcock letter of December 16, 1977 (exhibit 28): Answers to follow-up and additional questions.]

QUESTION 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 interpreting 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 representation 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?

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."

ANSWER: The Department is unaware of either the legislative history or court precedent which the committee is relying upon

to indicate that the cited sections fail to support the retention of private counsel. As noted in the Civil Division's answer to original question No. 5, it is the general statutory mandate, cited therein, requiring the Attorney General to conduct litigation in which the United States has an interest, that constitutes a general grant of power to retain private counsel. With respect to the last portion of the question, the Department has not taken the position that $517 must override $$515(a) and 543 in order to support its justification for retaining private attorneys.

QUESTION NO. 2: Follow-up on Question 24: What kinds

of suits, if any, can the Civil Rights Division bring against federal employees?

ANSWER: As indicated in our previous answers, there would not appear to be any type of civil suit which the Civil Rights Division could bring.

QUESTION NO. 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 employee is a defendant in his individual capacity, do the provisions of 50.15(a)(9) or other provisions of the Order indicate that conflicts between the United States and the employee may require the retaining of private counsel? ANSWER: The presence of the United States as a co-defendant does not in itself create inter-defendant conflicts as recognized by the provisions of 50.15(a) (9). But if in the course of the litigation there appeared to be a divergence of interests between the two, then retention of private counsel might be required.

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QUESTION NO. 4: Follow-up on Question 37:

Does the employing agency or the Department ask for an employee to submit a detailed statement specifying that his or her actions were "taken in good faith and with a reasonable belief as to their lawfulness" because the Department recognizes that it may argue that the Ehrlichman and Barker defenses do, in fact, exist, and, if not, what other reason prompts such a request? ANSWER: The Department does not inquire as to whether an employee feels that his or her actions were "taken in good faith and with a reasonable belief as to their lawfulness" because of the existance of the Ehrlichman and Barker cases. In the event that representation is provided and it becomes necessary to ascertain whether the employee believes that his actions were taken in good faith and with a reasonable belief as to their lawfulness as recognized by the Supreme Court in Scheuer v. Rhodes, 416 U.S. 232 (1974), then the Department of Justice would ask the employee to make statements concerning his or her perceptions of the situation.

QUESTION NO. 5: Follow-up on Question 46: Are the defenses raised in the Ehrlichman and Barker cases "available legal defenses" which the Department permits employing agencies to assume may apply in determining that an employee was acting within the scope of his or her employment?

1 See exhibit 44.

ANSWER: The Department does not prevent employing agencies from considering any available legal defenses in making its determination. But the Department of Justice has final authority to review material submitted by the agency and the employee and to consider the facts of the case when making the ultimate determin-ation of whether or not to provide representation for the employee.

QUESTION NO. 6: Follow-up on Questions 111-119: When the United States has an interest in representing its employees for acts performed within the scope of their official duties, and the Department retains private counsel who proceeds to raise arguments that are not in the interest of the United States to assert, on what specific policy and statutory basis does the Department conclude that attending to the first interest takes precedence over 'attending to the latter interest?

ANSWER: In such a situation the Department does not conclude that the interests of the individual takes precedence over the interests of the United States. If, after hiring private counsel, the broader interests of the United States require representation, that objective can be accomodated through the vehicle of an amicus appearance.

QUESTION NO. 7: Follow-up on Question 119: To what extent is a Department attorney who is representing a federal employee sued in his or her individual capacity free to subpoena and to enforce a subpoena for the Department or executive branch documents or for the testimony of executive branch witnesses in preparing the employee's defense?

21-221 O-78-27

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