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due two assistants appointed by the Attorney General under section 363. In dismissing the claim the court noted that "outside of ...section 3637, we know of no provision either in the general laws or the appropriation acts under which the assistant attorneys can be reimbursed for traveling or other expenses." 21 Ct. Cl. at 213 (emphasis supplied).

In 1897 the Supreme Court reached the same conclusion about the exclusive nature of sections 363 and 365 as has the Court of Claims in the Perry_case. In United States v. Cros thwarte, 168 U.S. 375 (1897) the court dismissed a claim for attorneys fees of an examiner in the Department of Justice. The examiner had received a written order by the Attorney General to investigate the accounts of a United States Attorney in Idaho and to assist the United States Attorney in a special grand

jury investigation. He was formally commissioned as "a special assistant" to the United States Attorney "to aid him in the preparation and prosecution of all criminal business properly coming before the court during its special term" and required to take "the customary oath of office." 168 U.S. at 376. Although the examiner was already employed by the Justice Department, he submitted a claim for compensation as an "ass't U.S. att'y." 168 U.S. at 377. After reciting the history of Sections 363 and 365 the court concluded:

The object of these statutory provisions is manifest. While giving the Attorney General full power to employ counsel for the United States to assist those upon whom regularly devolved the duty of representing the Government in the courts without special compensation, Congress intended to restrict the exercise of that power to the extent indicated in section 365. It was left to that officer to determine whether the public interests required the employment of special counsel. But that the discretion given to him might not be

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abused, and that unnecessary expense might be avoided, it was
declared (§ 365) that, except in the cases of the respective
District Attorneys and Assistant District Attorneys, no
compensation should be allowed to any person, as an attorney
or counsellor for the United States, unless specially authorized
by law, and then only on the certificate of the Attorney
General that such services were actually rendered, and that
the same could not have been performed by the Attorney
General, or by the Solicitor General, or by the officers
of the Department of Justice, or by the District Attorneys.
The giving of such a certificate was thus made a condition
of the right of the court to give judgment, as upon contract,
against the Government for any amount whatever as compen-
sation for legal services rendered in its behalf by counsel
specially employed or retained by the Attorney General to
assist those whose duty it is to represent the United
States in its legal business. Attorneys and counsellors
specially employed to render legal services for the United
States cannot, therefore, under existing legislation, be
compensated for such services in the absence of the certificate
of the Attorney General required by section 365 of the
Revised Statutes. In accepting such employment they take
the risk of that officer giving such a certificate as ought
to be given. If he fails or refuses to give the required
certificate Congress alone can provide for compensation.
The courts cannot disregard the express command of the statute
forbidding compensation to be allowed for legal services
rendered by special counsel when the claim therefor is not
accompanied by the prescribed certificate of the Attorney
General. 168 U.S. at 380 (emphasis supplied).

The court held that the claimant was not entitled to any compensation
because no certificate-which the court held to be "a prequisite to the
allowance of compensation"-had been issued to him under section 365
by the Attorney General. 168 U.S. 381. Without a certificate under
section 365 the court found that the only way to receive compensation
for work with a United States Attorney was to be a "regular Assistant
District Attorney" who is serving the government at a fixed salary and
"employed not for special cases or particular legal business, nor for

a specified term of court, but generally and regularly for all the business
of the Government that may arise in the courts of the district" in
which he serves. 168 U.S. at 380-381. This interpretation of section 365

21-221 O - 78 - 29

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was required, in the view of the court, in order not to "defeat the object of section 3657, which was to protect the Treasury from the expense incident to the employment of special counsel..." 168 U.S. at 381.

The Supreme Court's ruling in Cros thwarte was reaffirmed in

the Supreme Court's opinion in United States v. Winston, 170 U.S. 522(1898). In that case a regular United States Attorney claimed extra compensation for services as attorney for the United States in a case not pending in his district. In this case the claimant prevailed only because the Court found--despite the absence of any reference in the record to the existence of a proper certificate--that "a fair conclusion from this record that the proper certificate was given." 170 U.S. at 527. This finding was supported by the fact that the Attorney General had allowed the claim. Absent such a certificate, the court expressly affirmed the rule in Crosthwaite that section 365 would prohibit any claim for attorneys fees. 170 U.S. at 527.

The eagerness of the courts strictly to enforce the provisions of sections 363 and 365, however, began to cause complications for the Justice Department with the case of United States v. Rosenthal, 121 F. 862 (S.D. N.Y., 1903). In Rosenthal the court held that an attorney appointed as a "Special Assistant to the Attorney General" under section 366 could not conduct or aid in the conduct of proceedings before a federal grand jury and that indictments based upon such proceedings should be quashed. After reviewing the history of the Attorney General's supervision of United States Attorneys since 1861, the court concluded that the Attorney General could only himself participate in litigation in the lower courts, Supreme Court or Court of Claims, but could not

page 25

conduct grand juries. 121 F. at 865-867. The court further reasoned that a "Special Assistant to the Attorney General" could only appear in a proceeding in which the Attorney General could appear. The court's reasoning was reinforced by the fact that section 366-which was the only section referring to assistants to the Attorney General-was limited by its terms to appointment of attorneys "to assist in the trial" of a case and not in conducting a grand jury. 121 F. at 868. The court then found under the terms of section 365 no "cases specially authorized by law," other than perhaps section 363, for hiring counsel to conduct a grand jury proceeding. Inasmuch as the court had held that the appointment in the case before it had not been made under section 363-which applied only to appointment of assistants to the district attorneysthe appointee could not participate in grand jury proceedings. 121 F. at 869. This strict construction of section 365 and 366 further reduced the already very limited discretion of the Attorney General to retain private counsel.

Subsequent to the Rosenthal opinion the courts split on adopting its strict interpretation of sections 365 and 366. In United States v. Virginia - Carolina Chemical Co., 163 F. 66 (1908), the court extended the rationale in Rosenthal in quashing a May 26, 1906, grand jury indictment because "Special assistants" to the U.S. Attorney--even though appointed under section 363--had been present. The court reasoned that the provision in section 366 limiting commissions to attorneys "to assist in the trial of any case" must be read to limit the power of the Attorney General under section 363 to appoint attorneys "to assist the district attorneys in the discharge of their duties." 163 F. at 73. The

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court was not persuaded by the fact that section 363 by its terms contained no limitation on which "duties" of a United States attorney the assistant could perform. As a result, even though the Attorney General had appointed the attorneys under section 363, the court held there was no authority for their assisting the U.S. Attorney other than in a "case"--which by the court's definition excluded grand jury proceedings. This ruling effectively prohibited any appointment of a private attorney to conduct any grand jury proceedings.

In two other cases the reasoning of the court in Rosenthal was not extended to section 363. In United States v. Cobban, 127 F. 713 (1904) and in United States v. Twining, 132 F. 129 (1904), section 363 was read to authorize participation in grand jury proceedings by "special assistants to District Attorneys." Section 366 was not read to limit section 363.

Indeed, the court in Cobban noted that section 363 had come into existence nine years before section 366 and that, when section 366 was adopted in 1870, "section 363 was not repealed, modified, or referred to directly or by implication." 127 F. at 717. The court could not be persuaded that "the intention of Congress in 1861 can be reached by consulting an Act of 1870 which in no way refers to the former act." 127 F. at 717. The restrictive interpretation of sections 365 and 366, however, was not disputed in either case.

To clarify the original intention of the 1861 and 1870 Acts and to overrule these strained interpretation of sections 363 and 366, in 1906 Congress passed a new law stating as follows:

The Attorney-General or any officer of the Department
of Justice, or any attorney or counselor specially
appointed by the Attorney-General under any provision
of law, may, when thereunto specifically directed
by the Attorney-General, conduct any kind of legal