Congressional Testimony of an Assistant United States Attorney on Behalf of the National Association of Assistant United States Attorneys

Opinion

Congressional Testimony of an Assistant United States Attorney on Behalf of the National Association of Assistant United States Attorneys

T h e D e p a rtm e n t o f Ju stic e c o rre c tly tak es th e p o s itio n th a t it m a y no t p ro h ib it an A ss is ta n t U n ite d S ta te s A tto rn e y fro m te stify in g b e fo re C o n g re ss in his o r h e r p e rso n al c a p a c ity o n b e h a lf o f the N a ­ tio n al A ss o c ia tio n o f A ssista n t U n ited S ta te s A tto rn e y s.

T h e D e p a rtm e n t’s ru le s re g u la tin g su ch te stim o n y are c o n sis te n t w ith the F irst A m e n d m e n t T hose rules re q u ire th a t th e A U S A m a k e it c le a r th a t he o r sh e is n o t s p e a k in g for the D e p a rtm e n t, a v o id usin g o r p e rm ittin g the use o f h is o r h e r o ffic ia l title o r p o sitio n in c o n n e c tio n w ith the te stim o n y (e x c ep t as o n e o f sev eral b io g ra p h ic a l d e ta ils), a n d c o m p ly w ith ru le s o n the p ro te c tio n o f c o n f i­ d e n tia l in fo rm a tio n

N ovem ber 7, 1994

M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l

You have asked for our opinion on certain issues pertaining to testimony by an Assistant United States Attorney (“AUSA”) on legislation in which the Department has an interest, where the AUSA is not authorized to speak on behalf of the D e­ partment but rather is appearing in a personal capacity on behalf of the National Association of Assistant United States Attorneys (“NAAUSA”). W e conclude that the D epartm ent’s position, that it may not prohibit an AUSA from testifying before Congress in his or her personal capacity, is correct. W e also conclude that the rules that regulate such testimony are consistent with the First Amendment. Those rules require that the AUSA make it clear that he or she is not speaking for the D e­ partment, avoid using or permitting the use of his or her official title or position in connection with the testimony (except as one of several biographical details), and comply with rules on the protection of confidential information.

I. Protection A fforded by the F irst Am endm ent

The Supreme C ourt’s approach for reviewing government restrictions on the exercise of First Amendment rights by their employees involves a balancing of employee and governmental interests. Because balancing tests by their nature turn on the facts of specific situations, for purposes o f this memorandum we will ana­ lyze hypothetical congressional testimony by an AUSA on behalf of NAAUSA that would oppose a crime bill supported by the Department and recommend a different allocation of funds within the D epartm ent’s appropriations bill than that requested by the Department.

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Although the governm ent obviously cannot prevent private citizens from pre­ senting views on pending legislation, “the governm ent’s role as em p lo y er. . . gives it a freer hand in regulating the speech of its em ployees than it has in regulating the speech of the public at large. . . . [T]he governm ent as employer indeed has far broader pow ers than does the government as sovereign.” Waters v. Churchill, 511 U.S. 661, 671 (1994) (O ’Connor, J., plurality opinion). As Justice O ’Connor has recently explained,

the extra pow er the government has in this area comes from the na­ ture of the governm ent’s m ission as em ployer. Government agen­ cies are charged by law with doing particular tasks. Agencies hire em ployees to help do those tasks as effectively and efficiently as possible. W hen someone w ho is paid a salary so that she will con­ tribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government em ployer m ust have some pow er to restrain her.

Id. at 674-75. The balancing test that the Supreme Court applies in reviewing regulation o f speech by government em ployees is well established:

There is no dispute . . . about when speech by a government em­ ployee is protected by the F irst Amendment: To be protected, the speech m ust be on a matter o f public concern, and the em ployee’s interest in expressing herself on this m atter must not be outweighed by any injury the speech could cause to ‘“ the interest of the State, as an em ployer, in promoting the efficiency of the public services it perform s through its em ployees.’”

Id. at 668 (quoting Connick v. M yers, 461 U.S. 138, 142 (1983); P ickering v. B o a rd o f E duc., 391 U.S. 563,568 (1968)).'

Justice O ’C onnor has noted that w hile “a private person is perfectly free to uninhibitedly and robustly criticize a state governor’s legislative program, [the Court has] never suggested that the Constitution bars the governor from firing a highranking deputy for doing the same thing.” W aters v. Churchill, 511 U.S. at 672. In its starkest terms, the question presented by the hypothetical we are addressing is w hether this principle applies to an AUSA testifying about the crime bill on be-

1 In a d o p tin g this b alan cin g lest that accom m odates b o th governm ental interests and em ployee speech rights, the C o u rt has “ rejected Justice Holmes” approach to the free speech rights o f public em ployees, that ‘[a po lic e m an ] m ay have a constitutional right to talk p olitics, but he has no constitutional right to be a p o ­ licem an R a n kin v M c P h e rso n , 483 U S. 3 7 8 , 395 (1 9 8 7 ) (S calia, J , dissenting) (quoting M cA ulijje v. M a y o r o j N ew B ed jo rd , 155 M ass 216, 220, 29 N E. 517 (1 8 92)).

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half o f NAAUSA. A review of relevant Supreme Court decisions strongly suggests that the Court would hold that it does not.

Before any balancing is undertaken, the court must be satisfied that the speech in question was on a matter of public concern. “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name o f the First Amendment.” Connick v. M yers , 461 U.S. at 146. The Court held in Connick that “when a public employee speaks not as a citizen upon matters o f public concern, but instead as an employee upon matters only of personal interest,” review of the government em ployer’s actions in a federal court is unwarranted in the absence of “the most unusual circumstances.” Id. at 147.

This threshold “matter of public concern” requirement is easily m et in the NAAUSA testimony hypothetical. Testimony before Congress about pending leg­ islation is by its very nature a matter of public concern. The D epartm ent’s appro­ priations legislation, which sets forth the relative priority of the Departm ent’s various missions, obviously is o f public concern, and testimony by Department prosecutors about a crime bill would appear to be of particularly high public con­ cern, given the weight that can be given the expert views of federal prosecutors. These considerations are significant when balancing the strength of the A U SA ’s interest in giving the testimony against the Departm ent’s interest in preventing its employees from testifying in ways that are inconsistent with, and potentially under­ cut, the Department’s position on the legislation. Two Supreme Court decisions are particularly relevant to that balancing.

In Pickering , the seminal public employee speech case, the Court held that a board of education’s dismissal of a teacher for writing a letter to the editor of the local newspaper criticizing the board’s communication to taxpayers related to sev­ eral bond issues and its allocation of resources between athletic and educational programs violated the teacher’s First Amendment rights. The first part of the C ourt’s analysis rejected the board’s argument that a government em ployee’s duty o f loyalty requires that he avoid public comments critical of the employer. The Court found that the teacher’s statements were “in no way directed towards any person with whom [the teacher] would normally be in contact in the course of his daily work as a teacher. Thus no question o f maintaining either discipline by im­ mediate superiors or harmony among coworkers is presented here.” 391 U.S. at 569-70. Nor were the teacher’s relationships with the board or the school superin­ tendent “the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper func­ tioning.” Id. at 570. This part of the C ourt’s analysis in P ickering suggests that the Department could not make employee loyalty a significant part of an argument justifying the suppression of the hypothetical NAAUSA testimony.

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O f even greater significance for the NAAUSA hypothetical is the part of the C ourt’s analysis in P ickerin g that focused on the public interest in the difference of opinion betw een the teacher and the board concerning the school system ’s budget, including specifically the disagreement over the allocation o f funds between ath­ letics and academ ics. The Court opined that a school system ’s budget

is a m atter o f legitimate public concern on which the judgm ent of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as con­ clusive. On such a question free and open debate is vital to in­ formed decision-m aking by the electorate. Teachers are, as a class, the m em bers o f a community most likely to have informed and defi­ nite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear o f retaliatory dis­ missal.

Id. at 571-72. The C ourt concluded that the principle that “the government as em­ ployer . . . has far broader powers than does the governm ent as sovereign” ( W aters, 511 U.S. at 671) was inapplicable to the facts of the case: “we conclude that the interest of the school administration in limiting teachers’ opportunities to contrib­ ute to public debate is not significantly greater than its interest in limiting a similar contribution by any m em ber of the general public.” 391 U.S. at 573.

The C ourt’s strong statement in P ickerin g on the important contribution teach­ ers can make to public debate on a school system ’s budget is directly pertinent to our consideration o f the hypothetical NAAUSA testimony. Just as teachers are “the m em bers of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent,” we expect that the C ourt would conclude that the line prosecutors represented by NAAUSA have such “informed and definite opinions” on matters addressed in the crime bill and on “how funds allotted to the operation of the [Department] should be spent” that they m ust be allow ed “to contribute to public debate.”

The view that the hypothetical NAAUSA testimony would be speech protected by the First A m endm ent is also supported by the Court’s decision in P erry v. Sinderm ann, 408 U.S. 593 (1972). Citing P ickering, the Court held in P erry that a com plaint stated a First Amendment violation by alleging that a state college ter­ minated the em ploym ent o f a professor (who was also president of a teachers’ as­ sociation) in retaliation for his legislative testimony and other public statements disagreeing with the policies of the college administration. Id. at 598. It appears to us that the hypothetical testimony by an AUSA as an officer of an association of AUSAs presenting views in conflict with those expressed by the Department is on

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all fours with the facts of P erry , which involved testimony by a teacher as president of a teacher’s association disagreeing with the em ployer’s policies.

Not only would it be difficult to distinguish the NAAUSA testimony from the speech held protected by the First Amendment in P ickering and P erry, it is also unclear whether the Court would even consider the Departm ent’s interest in pend­ ing crime and appropriations bills to constitute an interest that would qualify as a “government as employer” interest under the C ourt’s balancing test: that is, an “interest o f the [Department], as an employer, in promoting the efficiency o f the public services it performs through its em ployees.” Pickering, 391 U.S. at 568. Since the public service of the Department in this circumstance is influencing Con­ gress’s consideration of legislation, the Departm ent’s interest as em ployer would appear to extend only to employees that participate in that service. Thus, the D e­ partment may have the right to require employees of the Office o f Legislative Af­ fairs or witnesses the Department chooses as its representatives to adhere to Department positions (just as it has the right to require AUSAs to adhere to D e­ partment litigation positions when they appear in court on behalf o f the D epart­ ment), but it is questionable whether the Department has that right with respect to individuals who do not perform functions in connection with the D epartm ent’s legislative activities.2 In sum, whether it is because the Court would invoke the Pickering rationale and find that the Department’s interest “ in limiting [AUSAs’] opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member o f the general public,” 391 U.S. at 573, or because the Court would simply find that the D epartm ent’s interest is not o f the kind recognized under the balancing test, we believe that it is almost certain that the Court would hold the hypothetical NAAUSA testimony to be protected speech. Although the question might be closer in circumstances involving testimony on matters on which the views of AUSAs might not be deemed to be o f significant congressional interest, we do not view this hypothetical as presenting a close ques­ tion.

II. Lim ited Restrictions on the Content o f the Testimony

Although the Department generally may not prohibit AUSAs from testifying be­ fore congressional committees in their personal capacities on legislation of interest

2 M oreover, as a factual matter, so long as it is c le ar that A U SA s testifying on b e h alf o f N A A U SA are not presenting the view s o f the D epartm ent, it does not appear that the D epartm ent’s ability to d isch arg e its function o f presenting D epartm ent and A dm inistration view s w ould be significantly com prom ised. W hile it m ay be that the expression o f inconsistent view s co u ld affect the legislative outcom e, that w ould be the result o f the ' ‘free and open debate [that] is vital to inform ed d ecision-m aking by the [C ongress], ’ P ickering, 391 U S at 571 -72, not the D epartm ent’s inability to discharge its responsibilities.

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to the D epartm ent, we do not believe that the First Amendment makes impermissi­ ble the D epartm ent’s traditional position that its em ployees must protect confiden­ tial inform ation and m ust make clear that they are not speaking in their official capacities.

The D epartm ent has a legitimate need to ensure that the Department speaks with one voice concerning official positions and a significant responsibility to protect confidential D epartm ent information. In furtherance of these Department interests, the D epartm ent provides standard instructions to current (and sometimes former) em ployees o f United States A ttorneys’ offices who testify before Congress con­ cerning D epartm ent m atters, whether in their official or personal capacities. See, e.g., Letter for Law rence J. Leiser, Esq., from Anthony C. Moscato, Director, Ex­ ecutive O ffice for United States A ttorneys (M ay 2, 1994). The instructions specify that the A U SA s are not authorized to appear in their official capacity as an AUSA and that they have no authority to speak for the Department or their United States A ttorney’s O ffice.3 They include a request that the employee make it clear, both at the beginning o f the testimony and when questions of opinion arise, that the em­ ployee’s opinions are personal and d o not constitute an official position of the De­ partment.

T he standard instructions encourage AUSAs to answer fully and candidly all questions concerning matters within their personal knowledge. They stress in ad­ dition, however, that the appearance before the congressional committee does not relieve the em ployees o f any obligations of secrecy that arise from their official duties as A U SA s. They give examples of the types of information that should not be revealed and direct that requests for Department records be referred to the Of­ fice o f Legislative Affairs. The instructions conclude with the admonition that:

You should be aware at all times o f your obligations to be truth­ ful and fair in responding to questions posed to you during the [testimony]. You should also carefully consider the scope of your answ ers in light o f all requirements o f law, rule, policy, and ethical standards, w hether specifically discussed in this letter or not.

Id. at 2. T o the limited extent that such efforts curtail speech by Department em­ ployees, the effect is to protect confidential D epartm ent information that employ­ ees are not free to disclose. Such efforts to ensure that the Department speaks with one voice and to protect confidential D epartm ent information fall squarely within the enhanced regulatory power the D epartm ent has as employer and are consistent with the First Amendm ent.

3 S e e U n ite d S la te s A tto r n e y s ’ M anual, C h 8, § 1-8.040 (“The A ttorney G eneral reserves the right to determ in e w h e th er the D ep artm en t will be rep resen ted at any C ongressional hearing and, if so, w ho will ap p ear on b e h a lf o f the D ep artm en t ").

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An AUSA who testifies in his or her personal capacity is also subject to gov­ ernment-wide ethics regulations which prohibit the AUSA from using or permitting the use of his or her official title or position in connection with the testimony ex­ cept as one o f several biographical details. Office of Government Ethics regula­ tions provide that

an em ployee shall not use or permit the use of his Government po­ sition or title or any authority associated with his public office in a manner that could reasonably be construed to imply that his agency or the Governm ent sanctions or endorses his personal activities or those o f another. When . . . speaking . . . in a personal capacity, he may refer to his official title or position only as permitted by § 2635.807(b).

5 C.F.R. § 2635.702(b) (1994). The only permissible reference to official title or position is that “[a]n employee may include or permit the inclusion of his title or position as one of several biographical details when such information is given to identify him in connection with his . . . speaking . . . , provided that his title or po­ sition is given no more prominence than other significant biographical details.” 5 C.F.R. § 2635.807(b)(1) (1994).

W ALTER DELLINGER A ssistan t A ttorn ey G eneral Office o f L egal Counsel