Justice Department Retention of Private Legal Counsel to Represent Federal Employees in Civil Lawsuits

CONTENTS

Page

----------------

Introduction by Senator James Abourezk.------

I. Overview---

II. Evaluation of Justice Department Policy of Retaining Private Legal

Counsel to Represent Federal Employees.----

A. Absence of Statutory Authority ---

B. Independence of Private Counsel.

1. Legal Defenses and Arguments Made on Behalf of Federal

Employees.--

a. Barker/Ehrlichman Defenses---

b. Absolute and Qualified Good Faith Immunity-

2. Arguments Regarding Legality of Conduct of Federal Em-

ployees.--

C. Impact on Criminal Investigations and Prosecutions.

D. Expense of Private Counsel..

III. Recommendations---------

A. No Further Appropriations or Contracts--

B. Continued Payment of Private Counsel Under Exi

tracts-

C. Private Bills to Pay Costs.-

D. Prosecution Decisions by the Department..

E. Amendments to the Tort Claims Act--

F. Clarification of Department Authority to Retain Private

Counsel.--------------------

APPENDIX OF EXHIBITS

ATTORNEY GENERAL'S ORDER 683–77 (JANUARY 19, 1977)

Exhibit 1: Justice Department statement of policy regarding limitation for

representation of Federal employees, Attorney General's Order 683–77

(January 19, 1977)----------------

Exhibit 2: Revised version of Attorney General's Order 683–77 (January 19,

1977) presently in effect--------

DEPARTMENT MEMORANDA ON Which ATTORNEY GENERAL'S

ORDER 683–77 (JANUARY 19, 1977) Is BASED

Exhibit 3: Memorandum of Antonin Scalia, Assistant Attorney General-

Office of Legal Counsel, March 4, 1976, regarding “Authority for Em-

ployment of Outside Counsel” 1..

Exhibit 4: Memorandum of Antonin Scalia, Assistant Attorney General-

Office of Legal Counsel, March 15, 1976, regarding “Employment of Out-

side Legal Counsel—Nature of Contracts, Reimbursement by Other

Agencies

Exhibit 5: Memorandum of Rex E. Lee, Assistant Attorney General-

Civil Division to the Deputy Attorney General regarding comments on

draft regulations regarding representation, April 16, 1976----

Exhibit 6: Memorandum of Mary E. Wagner and Bruce A. Baird to

Harold R. Tyler, Deputy Attorney General regarding representation of

Government employees, June 4, 1976----------

Exhibit 7: Memorandum of Edward H. Levi, Attorney General to As-

sistant Attorneys General regarding representation of Government

employees, January 19, 1977.---

-------------

1 See also exbibit 13 at p. 195; exhibit 26 at pp. 312-321 (questions 1-19); exhibit 28 at pp. 400-401 (question
1); exhibits 31-38 at pp. 413-506; and exhibits 72 to 80.

NOTE.—This report was prepared by staff and has neither been reviewed nor approved by the members

of the committee.

(III)

IMPLEMENTATION AND EVALUATION OF ATTORNEY GENERAL's

Exhibit 8: Sample Department letter retaining private legal counsel. -----

Exhibit 9: Sample Department letter setting fees of private legal counsel.-

Exhibit 10: Memorandum of David J. Anderson, Chief, General Litigation

Section-Civil Division, to Barbara Babcock, Assistant Attorney

General-Civil Division, March 21, 1977--------

Attachments to March 21, 1977, memorandum:

Report to the Assistant Attorney General on “Representation of

Government Employees in Civil Litigation" by Representation

Committee of the General Litigation Section, Civil Division,

March 21, 1977---------------------------

Description of Pending Cases ...

Exhibit 11: Letter From Barbara Allen Babcock, Assistant Attorney

General—Civil Division to Judge Gerhard A. Gesell regarding Jack N.

Anderson v. Richard M. Nixon, May 1977..

APPROPRIATIONS TO PAY FOR PRIVATE LEGAL COUNSEL

Exhibit 12: Excerpts from House Appropriations Committee hearings on

supplemental appropriations for fiscal year 1977.--

Appropriation Summary Sheet ---

Testimony of Irving Jaffe, Deputy Assistant Attorney General-

Civil Division ----

Exhibit 13: Excerpts from Senate Appropriations Committee hearings on

supplemental appropriations for fiscal year 1977..

Testimony of Glen Pommerening, Assistant Attorney General for

Administration.---

Memorandum of John Harmon, Acting Assistant Attorney General-

Office of Legal Counsel to Irving Jaffe, Deputy Assistant Attorney

General—Civil Division, regarding “Authority for Retaining Out-

side Legal Counsel”, February 18, 1977 2 ---

Testimony of Irving Jaffe, Deputy Assistant Attorney General—Civil

Division---

Pending Civil Damage Suits 3

Testimony of J. Edward Day, former Postmaster General.-

Exhibit 14: Excerpts from report of the House Appropriations Committee

on Supplemental Appropriations Act for fiscal year 1977.-----

Exhibit 15: Excerpts from H.R. 4877, Supplemental Appropriations Act

for fiscal year 1977 as reported and adopted by House ---

Exhibit 16: Excerpts from report of the Senate Appropriations Committee

on Supplemental Appropriations Act for fiscal year 1977.-----

Exhibit 17: Excerpts from H.R. 4877, Supplemental Appropriations Act

for fiscal year 1977, as reported and adopted by Senate ----

Exhibit 18: Excerpts from the conference report on the Supplemental Ap-

propriations Act for fiscal year 1977------

Exhibit 19: Excerpts from the Supplemental Appropriations Act for fiscal

vear 1977--------

Exhibit 20: Excerpts from House hearings on Justice Department appro-

priations for fiscal year 1978..

Exhibit 21: Excerpts from Senate hearings on Justice Department appro-

priations for fiscal year 1978.---

JudiciaRY COMMITTEE REVIEW

Exhibit 22: Letter from Barbara Allen Babcock, Assistant Attorney Gen-

eral-Civil Division, to Chairman James O. Eastland, May 19, 1977.--

Exhibit 23: Letter from Chairman James O. Eastland to Barbara Allen

Babcock, Assistant Attorney General-Civil Division, June 11, 1977.--

Exhibit 24: Letter from Barbara Allen Babcock, Assistant Attorney Gen-

eral-Civil Division, to Chairman James 0. Eastland, June 21, 1977.--

272

274

1 See exhibit 13 at p. 214; exhibit 40 at pp. 535-558; and exhibits 56-60 at pp. 935-950.

? See exhibit 3 at p. 38; exhibit 26 at pp. 312-321 (questions 1-19); exhibit 28 at pp. 400-401 (question 1);

exhibits 31-38 at pp. 413-506; and exhibits 72 and 80.

s See exhibit 10 at p. 138; exhibit 40 at pp. 535-558; and exhibits 56-60 at pp. 935-950.

282

Exhibit 25: Letter from Senator James Abourezk to Barbara Allen Babcock,

Assistant Attorney General—Civil Division, July 13, 1977.-----

Attachments to July 13, 1977, letter:

Documents to which committee needs access and list to compile.

Committee questions.----

Authority for Department order (questions 1-19) -----

Scope of the order (questions 20-30).

Interpretation and administration of the Department

(questions 31-134)-----

Legal standards (questions 135-149) ----

Congressional proceedings (questions 150–167) ----

Immunized employees (questions 168–169) -

Exhibit 26: Letter from Barbara Allen Babcock to Senator James Abourezk,

October 4, 1977.---

----------

Attachments to October 4, 1977, letter:

Answers to questions on representation of Federal employees sub-

mitted by the Senate committee-----

Authority for Department order (questions 1-19) -----

Scope of the order (questions 20–30) -

Interpretation and administration of the Department o

(questions 31-134)---

---------------------

Legal standards (questions 135-149) ---

Congressional proceedings (questions 150-167)--

Immunized employees (questions 168–169)------

Tab A: Department memoranda on which the Attorney General's

Order No. 683–77 and revised order are based (See exhibits 6,

8, and 10)----

----

Tab B: Court pleadings and transcripts in cases where the issue

of private counsel has been raised (See exhibit 11)--

Tab C: Correspondence between the Department of Justice and

retained private counsel regarding the terms of their retention

(See exhibit 9)----------------

Tab D: Department memoranda on 1977 supplemental budget

request to pay private counsel.----

Exhibit 27: Letter from Senator James Abourezk to Barbara Allen Babcock,

Assistant Attorney General-Civil Division, October 12, 1977--------

Attachment to October 12, 1977, letter:

Follow-up and additional questions..

Exhibit 28: Letter from Barbara Allen Babcock, Assistant Attorney

General—Civil Division, to Senator James Abourezk, December 16,1977.

Attachments to December 16, 1977, letter:

Answers to follow-up and additional questions.

-------------

Documents submitted:

Memorandum of Rex E. Lee of April 16, 1976 (See exhibit 5).

Order in D.N.C. v. McCord (August 9, 1972) ------

Exhibit 29: Letter of Senator James Abourezk to Barbara Allen Babcock,

Assistant Attorney General-Civil Division, December 22, 1977------

Exhibit 30: Letter of Barbara Allen Babcock, Assistant Attorney General-

Civil Division, to Senator James Abourezk, February 7, 1978.---------

STATUTORY AUTHORITY FOR ATTORNEY GENERAL'S ORDER 683–77 1

Exhibit 31: Committee staff memorandum on “Statutory Authority for

Justice Department Hiring of Private Counsel'.--

Exhibit 32: Letter of Senator James Abourezk to Gilbert Gude, Director,

Congressional Research Service, November 11, 1977 (see exhibit 34)----
Exhibit 33: Letter of Senator James Abourezk to Elmer B. Staats, Comp-

troller General, November 11, 1977 (see exhibit 37)-----

413

540

452

1 See memorandum from Antonin Scalia, Assistant Attorney General-Office of Legal Counsel, regarding
"Authority for Employment of Outside Counsel," March 4, 1976 (exhibit 3); memorandum of John M.
Harmon, Assistant Attorney General-Office of Legal Counsel, to Irving Jafle, Deputy Assistant Attorney
General-Civil Division, regarding “Authority for Retaining Outside Legal Counsel," February 18, 1977
(exhibit 13 at pages 195): Department answers to committee questions 1-19 (exhibit 26 at pages 312-321);
Department answers to followup question 1 (exhibit 28 at pages 400-401); and exhibits 72 through 80.

Page

454

493

1055

Exhibit 34: Memorandum from American Law Division to Senator James

Abourezk regarding “Authority of the Department of Justice to Retain

Private Counsel to Represent the Interests of the United States,”

December 21, 1977' - ..

Exhibit 35: Letter of Senator James Abourezk to Barbara Allen Babcock,

Assistant Attorney General—Civil Division, January 2, 1978.----

Exhibit 36: Letter from Barbara Allen Babcock, Assistant Attorney Gen-
eral—Civil Division, to Senator James Abourezk, March 14, 19782----
Attachments to March 14, 1978, letter:
Memorandum of John M. Harmon, Assistant Attorney General-

Office of Legal Counsel, to Barbara Allen Babcock regarding
"Authority for employment of outside counsel,” March 10,

1978 3 ------
Memorandum of John M. Harmon to Irving Jaffe regarding

“Authority for Retaining Outside Counsel,” February 18, 1977.
Letter of Attorney General Edward H. Levi to Congressman

Peter W. Rodino, December 24, 1975.--
Exhibit 37: Decision of the Comptroller General on Justice Department

Authority to Retain Private Legal Counsel, April 12, 1978 (B-130441) 4

Exhibit 38: Decision of the Comptroller General on “Payment of Damages,

Costs, and Private Legal Expenses of Government Officers and Employ-

ees Who Are Sued Under Section 7217 of the Internal Revenue Code of

1954," May 16, 1977 (B-137762 and B–143673)--------

1056
1060

1063

1066

494

GENERAL DOCUMENTS ON ATTORNEY GENERAL's ORDER 683–77

Exhibit 39: Address of Harold R. Tyler, Deputy Attorney General, on

"Proper Representation of Currently Unpopular Litigants-Present

and Former Government Officials.” January 30, 1976------

--------------

Exhibit 40: Report of the Comptroller General of the United States, “Law

Suits Against the Government Relating to a Bill to Amend the Privacy

Act of 1974,” May 6, 1977 (B-130441).

507

518

581

625

LEGAL COMMENTARY AND COURT CASES ON OFFICIAL IMMUNITIES
Exhibit 41: Leon Friedman, “The Good Faith Defense in Constitutional

Litigation," 5 Hofstra Law Review 501 (Spring 1977) -

Exhibit 42: Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971).----

Exhibit 43: Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 456 F.2d 1339 (2d Cir. 1972)-------

Exhibit 44: Scheuer v. Rhodes, 416 U.S. 232 (1974)..

Exhibit 45: Uniled States v. Barker, 514 F.2d 208 (D.C. Cir. 1975)..

Exhibit 46: United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976) -----

Exhibit 47: United States v. Barker, 546 F.2d 940 (D.C. Cir. 1976)----

Exhibit 48: Memorandum from American Law Division to Senate Sub-

committee on Administrative Practice and Procedure on “Good Faith,

Reasonable Reliance on Apparent Authority as a Defense to Criminal

Prosecution and Civil Liability of Government Officials Generally,''

AMENDMENTS TO THE FEDERAL Tort Claims Act

Exhibit 49: Legislative History of H.R. 8245, Public Law 93-253, 88 Stat.

50 (amendment of 28 U.S.Č. 2680(h))..

Exhibit 50: Senate Report 93-588 on H.R. 8245 (amendment of 28 U.S.C.

2680(h)).

Exhibit 51: House Debate on H.R. 8245 (amendment of 28 U.S.C.

2680(h))---

Exhibit 52: Jack Borger, Mark Gitenstein, Paul R. Verkuil, “The Federal

Tort Claims Act Intentional Torts Amendment: An Interpretative

Analysis,” 54 North Carolina Law Review 497 (April 1976)---------

855

862

868

1 See exhibits 32, 72-73, and 75-76.

? See exhibits 35 and 72-73.

3 See exhibits 72 to 74.

4 See exhibits 33 and 75 to 80.

Page
916

Exhibit 53: Recommendation 91 of the Select Committee to Study Govern

mental Operations With Respect to Intelligence Activities ..
Exhibit 54: Letter from Attorney General Griffin Bell to the Vice President,

September 16, 1977.-.
Exhibit 55: S. 2117, Federal Tort Claims Act Amendments -------------

920 926

935

Lists OF CASES TO Which ATTORNEY GENERAL'S

ORDER 683–77 Has BEEN APPLIED 1
Exhibit 56: Department list of cases between May 4 2 and July 14, 1977,

in which private counsel had been retained.---.
Exhibit 57: Cumulative Department list of cases in which private counsel

had been retained, as of October 20, 1977... Exhibit 58: Department list of cases between May 4? and November 11,

1977, in which private counsel had been retained.--. Exhibit 59: Department list of cases between May 42 and December 28,

1977, in which private counsel had been retained.Exhibit 60: Department list of cases pending against certain named

officials 3---

936

939

941

----

944

JUSTICE DEPARTMENT PROSECUTION OF FEDERAL EMPLOYEES

951

1009

1013

1977-

1014

1977-------

1015
1016

Exhibit 61: Justice Department press release and report on mail opening

investigation, January 14, 1977---
Exhibit 62: Justice Department press release on Kearney indictment,

April 7, 1977. -.
Exhibit 63: News article on Kearney indictment, New York Times, April 8,

1977.----
Exhibit 64: News article on Kearney indictment, Washington Post, April 8,
Exhibit 65: Commentary on Kearney indictment, Washington Star, May 26,
Exhibit 66: Commentary on Kearney indictment, Washington Post, June 13,

1977---- -
Exhibit 67: Materials released by the Justice Department on Helms case,
October 31, 1977.--.

(1) Statement of facts-------
(2) Information (charges)----
(3) Sentencing memorandum..
(4) Transcript of sentencing hearing---

(5) Transcript of Helms press statements..
Exhibit 68: News article on Helms case, New York Times, November 1, 1977,
Exhibit 69: News article on Helms case, Washington Post, November 1,
Exhibit 70: Commentary on Helms case, New York Times, November 1,

1977.--
Exhibit 71: Commentary on Helms case, Washington Post, November 2,

1977.-

1017 1017 1020 1022 1027 1048 1049

1050

1052

1053

FURTHER MATERIALS ON STATUTORY AUTHORITY FOR ATTORNEY GENERAL'S ORDER

683–774

Exhibit 72: Memorandum of subcommittee requesting Congressional Re

search Service review of "Department of Justice Memorandum” of March 10, 1978 (attachment to exhibit 36), March 24, 1978---- ----

1071

1 See additional lists in exhibit 10 at pages 138 to 149; exhibit 13 at pages 214 to 224; and exhibit 40 at pages 535 to 549 and 550 to 558.

2 The Supplemental Appropriations Act for fiscal 1977 (exhibit 19) was signed into law on May 4, 1977. The language in the Conference Report on the Supplemental Appropriations Art (exhibit 18) lin iting the authority of the Department to retain new private counsel pending a review of the Attorney General's order by the House and Senate Judiciary Committees went into clect on that date. By letter of June 11, 1977. (exhibit 23) the Department was given interim authority by the Judiciary Committee to retain new private legal counsel pending completion of this review on the condition that the Department inform the committee of its actions. Exhibits 56, 57, 58, and 59 were provided by the Department to the committee pursuant to this agreement.

3 See request for list in exhibit 25 at p. 279. See also exhibit 26 at p. 308 and exhibit 27 at p. 390. See exhibit 30 at p. 1054. “ See exhibit 3 ; exhibit 13 at page 195 ; exhibit 26 at pages 312-321 ; exhibit 28 at pages 400-401 ; and exhibits 31 to 38.

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