Reimbursing Justice Department Employees for Fees Incurred in Using Private Counsel Representation at Congressional Depositions
T h e D e p a r tm e n t o f J u s tic e may re im b u rs e its e m p lo y e e s fo r le g a l fe e s th e y in c u r in u s in g p riv a te c o u n s e l r e p r e s e n ta tio n at c o n g re ss io n a l d e p o s itio n s in c irc u m s ta n c e s w h e re th e D e p a rtm e n t w a s p la n n in g to p ro v id e D e p a rtm e n t c o u n se l fo r o ffic ia l c a p a c ity te s tim o n y b u t th e c o n g re s s io n a l c o m m itte e re fu s e d to p e r m it D e p a rtm e n t c o u n se l to b e p re sen t.
T h e D e p a r tm e n t s h o u ld m ak e in d iv id u a liz e d in q u irie s to d e te rm in e w h e th e r th e re p re s e n ta tio n o f p a r tic u la r e m p lo y e e s in clu d es re p re s e n ta tio n o f p u re ly p e rs o n a l in te re s ts th a t s h o u ld n o t be re im b u r s e d .
September 27, 1990
M e m o r a n d u m O p in io n f o r t h e D e p u t y a t t o r n e y G e n e r a l
You have asked for our opinion as to whether the Department may reim burse Department employees for legal fees they incur in using private counsel representation at depositions that are part of the investigation by the House Judiciary Committee into the Department’s automated data processing pro curem ent practices.1 For the reasons set forth below, we conclude that the Department may reimburse the employees. You have not asked us to make the individualized inquiries necessary to determine whether the representa tion o f particular employees includes representation o f purely personal interests that should not be reimbursed. We do note, however, that we are unaware at this time of any such interests. The Civil Division concurs in the analysis and conclusions contained in this opinion.
I. Background
The House o f Representatives Committee on the Judiciary is conducting an extensive oversight investigation into the Department’s automated data processing (“ADP”) procurement practices, with particular attention to the Inslaw and Project Eagle procurements.2 Early in its investigation, the Com m ittee requested interviews of D epartm ent em ployees concerning the 1T h is o p in io n d o e s not ap p ly to the sp ec ia l c ircu m stan ces o f a form er D epartm ent e m ployee w ho is c u rre n tly the su b jec t o f an Inspector G e n eral investigation.
2 B e c a u se th e p rin c ip a l focus of the in v estig atio n is on the Inslaw p rocurem ent, w e w ill re fe r to the in v e stig a tio n as th e “ In slaw in vestigation.”
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Departments handling of these procurements. In light o f the oversight pur pose of the interviews (i.e., to obtain information from the Department in order to determine what legislative action, if any, Congress should take with respect to the Department’s ADP procurement practices), the Department determined that it was in the Department’s interests to make the employees available for the interviews.
For the same reasons, the Department treated the interviews as being given in the employees’ official rather than individual capacities and applied its longstanding policy that when Department employees are asked in their official capacities to give oral testimony for a congressional investigation (whether at a hearing, interview or deposition), a Department counsel or other representative will normally accompany the witness. When the De partment informed the Committee of its interest in having Department counsel present during the interviews, the Committee objected, stating that the De partm ent presence would represent a conflict of interest and it might discourage the employees from speaking candidly or otherwise have a “chill ing effect” on them.
After a period of discussion, the Committee and the Department reached agreement on the conditions of the employee interviews, with the Depart ment acquiescing to the committee’s insistence that the interviews take place without Department counsel being present. The Department made it clear that its agreement to make an exception to the longstanding Department policy was based on the specific circumstances of the Inslaw investigation and that these interviews should not be viewed as precedent for future over sight investigations of the Department by the Committee. The Committee staff proceeded to interview the employees without Department (or any other) counsel present.
Subsequently, the Committee informed the Department of its intention to conduct depositions of certain Department employees. The depositions were to differ in form from the previously conducted interviews principally in that the witnesses would testify under oath and the testimony would be recorded. In light of these differences, the Department gave renewed con sideration to whether it should adhere to the longstanding Department policy and insist that Department counsel be present at the depositions. When the Department preliminarily raised its concerns with the Committee, the Com mittee indicated that it would adhere to its prior position of not permitting Department counsel to be present and that it was prepared to subpoena the employees (in which case, it asserted, the House rules would only allow private counsel to be present to advise the witness of his constitutional rights). You then decided that the Departm ent would again acquiesce to the Committee’s position and not insist that Department counsel be present but that if any employee wanted counsel at his deposition, the employee could retain private counsel and the Department would reimburse the employee.
Your decision that the Department would reimburse employees for their private counsel fees was based on the specific circumstances presented. These
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circumstances include that the Committee is not permitting the Department to adhere to its longstanding policy of providing Department counsel when employees give congressional testimony in their official capacities, that it is not fair to expect employees to pay for private counsel when testifying in their official capacities, that there are no pending criminal investigations involving the employees, and that there is no other divergence between the interests of the Department and the employees.
At the time you made your decision, the Civil Division and this Office had orally advised you that the Department has legal authority to make such reimbursement. You have asked that this advice be confirmed in a written opinion from this Office. We have prepared this opinion in consultation with the Civil Division.
II. Discussion
The vast majority of Department reimbursements of private counsel fees involve payment, pursuant to the Department’s representation guidelines, to em ployees who seek representation in their individual capacity; in these cases the acts being questioned are within the scope of the employees’ em ployment but the Department has some conflict of interest. On rare occasions reimbursement has also been made for employees who need representation in their official capacities but for institutional reasons the Department must seek to represent them indirectly through reimbursed private counsel. The present situation is one of the latter occasions, due to the refusal of the Judiciary Committee to permit the Department to follow its longstanding policy that Department counsel should be present at official capacity testi mony for congressional investigations.3 The general principles on Departmental authority that apply in these cir cumstances are well established:
’ F o r y o u r in fo rm a tio n , the D epartm ent’s rep resen tatio n g u id elines a re inapplicable here b ecau se they only g o v e rn the legal representation o f em p lo y ees “ sued or subpoenaed in [their] indi vidual capacities." 2 8 C .F R . § 50 .1 5 (a). R ep resen tation o f em ployees in th e ir offi cial capacities is provided autom atically, w ithout reference to the representation guide lines. S in ce su its o r subpoenas a g ain st em p lo y ees in their o fficial capacities are tanta m o u n t to su its o r subpoenas a g a in st the g o v ern m en t itself, o fficial capacity re p re sen ta tio n is v irtu ally alw ays p ro v id e d by g o v ern m en t attorneys. By contrast, w hen an e m p lo y e e is sued o r subpoenaed in his individual capacity, th e re is the po ten tial fo r c o n flic t b e tw ee n th e individual interest o f the em p loyee a n d the interests o f other e m p lo y e es. . . . [T he] rep resen tatio n guid elin es are d e signed to set stan d a rd s for d e te rm in in g I) w h e th er to p ro v id e individual cap a c ity r e p re s e n ta tio n ,. . . and if so. 2) w h e th e r to p ro v id e that rep resen tatio n by g o v ern m en t counsel or by priv ate counsel re ta in e d a t g o v e rn m e n t expense.
M em o ra n d u m fo r the D ep u ty Attorney G e n eral from T h eo d o re B. O lso n , A ssistant A ttorney G en eral, O ffic e o f L e g a l C o u n se l, Re: Reimbursement o f Anne M. Burford fo r Private Counsel Fees , at 3 n .3 (M ay 3, 1 983) (“ B u rfo rd M em o ran d u m ”).
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The practice of retaining and paying private attorneys was bom of necessity. From time to time, cases arise in which it is awkward from an institutional or professional standpoint for the Attorney General to represent government employees directly, through DOJ attorneys, even though it is clear that representation would be in the interests of the United States. . . . [I]n such cases . . . the Attorney General has “implied authority” to provide representation . . . through a mechanism that will enable him to resolve the professional difficulty. U s ing his general authority to contract for services that are necessary in the performance of his statutory functions, he may hire private lawyers to do indirectly what it would be awkward or inappropriate for the United States to do directly through DOJ lawyers.4
The conclusion that the Attorney General has such implied authority is based on that fact that he possesses not only representational authority, see 28 U.S.C. § 517, but executive authority as well, see 28 U.S.C. § 509, and the latter may be used in furtherance of the former.5 A number of opinions of this Office specifically hold that where Depart ment representation would ordinarily be provided in a congressional investigation but is inappropriate under the specific circumstances, the D e partment may reimburse a government employee for legal fees incurred using private counsel.6 Indeed, one opinion addressed a situation that was strik ingly similar to the present situation. During the course of an investigation by the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs into the Labor Department’s handling of Teamsters’
‘ M em o ran d u m fo r E d w ard C. S ch m u lts, D eputy A ttorney G en eral, from T heodore B. O lso n , A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, Re: Civil Division s Recommendations Concerning R eim bursement o f Legal Expenses, at 2-3 (June 24, 1981).
’ See M em o ran d u m fo r G len E. Pom m erening, A ssistant A ttorney G eneral for A d m inistration, from A ntonin S calia, A ssistan t A tto rn ey G eneral, O ffice o f Legal C o u n sel, Re: Authority f o r Employment o f Outside Legal Counsel, at 6 (M ar. 4, 1976) (“Pom m erening M em o randum ” ) (“ [I]nterests o f the U n ited States, as w ell as in terests o f the individual Federal em ployees, are at stake. B ecause o f p o ssible c o n flicts o f in terest, rep resen tatio n by D epartm ent em ployees is not feasible. In these circ u m stan c e s, . . . the A ttorney G en eral can use his general au th o rity as the head o f the D epartm ent, see 28 U .S .C . 509, to fu rth er the . . . in te re sts o f the U nited States by retain in g p riv ate attorneys.” ); M em orandum for Jam e s A . B arnes, G en eral C o u n sel, Environm ental Protection A gency, from T h eo d o re B. O lso n , A ssistant A ttorney G en eral, O ffice o f L egal C ounsel, Re: Payment o f Private Counsel Fees Incurred by Anne M. Burford, at 3 (M ar. 12, 1984) ( “W hen the D epartm ent o f J u stic e pro v id es re p re sen ta tio n to ag en cy e m ployees, it d o es so pu rsu an t to 28 U .S.C § 517 . . . . " ) .
‘ See B urford M em o ran d u m , n.3 (the g o v ern m en t may reim burse fo rm er A d m in istra to r o f EPA for p riv ate co u n sel fees in cu rred in connection w ith co n g ressio n al invest:g a tio n s into m a n a g em e n t and a ctivities o f E PA ), M em o ran d u m for J. Paul M cG rath, A ssistant A ttorney G eneral, C ivil D ivision, fro m T h eo d o re B. O lso n , A ssistant A ttorney G eneral, O ffice o f L eg al C ounsel, Re: Reimbursing Norman Edward Perkins f o r Attorney's Fees (M ar. 15, 1982) (“ Perkins M em orandum ” ) (Ju stice D ep artm en t m ay reim burse L a b o r D epartm ent em ployee for private counsel legal e xpenses in cu rred in te stim ony before S enate su b co m m itte e investigative hearing); Pom m erening M em orandum , n.5 (Ju stice D e p art m ent m ay retain p riv ate counsel fo r em ployees o f various agencies in c onnection w ith cong ressio n al hearings and civil litig atio n ).
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Union matters, many Labor Department employees testified before the Sub committee while accompanied by Justice Department counsel. However, the Chairman of the Subcommittee, Senator Nunn, objected to Norman Edward Perkins and one other Labor Department employee being accompanied by Justice Department counsel because the Subcommittee suspected these indi viduals of criminal conduct. The apparent rationale for the Subcommittee position on Department representation was that the Subcommittee “wished to avoid a conflict of interest which could have arisen if Justice later de cided to prosecute Mr. Perkins.” Perkins Memorandum at 3. Upon discussing the m atter with Senator Nunn, Attorney General Civiletti acquiesced to the Senator’s preference and agreed that Perkins and the other employee would not be accompanied by Department counsel. Id. at 2. Perkins retained private counsel (id. at 1) and reimbursement o f his counsel fees was ap proved by this Office’s opinion (id. at 6).
The Perkins situation was basically the same as the present one. “In the absence o f the Nunn-Civiletti agreement, it appears that Perkins would have been represented by a Justice Department attorney, as were the other Labor Departm ent employees.” Id. at 3. Likewise, Department counsel would be representing the employees at the Judiciary Committee depositions but for the D epartm ent’s agreement (by acquiescing to the Committee’s position) that Departm ent counsel would not be present at the employee interviews or depositions. In addition, in the two situations Senator Nunn and the Judi ciary Committee were each concerned that Department representation would present a conflict of interest. Although the Department in fact had no con flict o f interest in the Perkins situation because no criminal investigation had been initiated (see id. at 4), and the Department has no conflict of interest in the present situation because the employees are appearing in their official capacities and there is no pending criminal investigation, in both cases the Department acquiesced to the congressional committee’s position and made an exception to the longstanding policy that government counsel accompany government employee witnesses.
Although the Department’s representation guidelines do not apply in this situation, see n.3 supra, reimbursing the employees is consistent with the principles underlying the guidelines. In reaching this conclusion, we adopt the analysis we used in the Perkins matter.7 We noted there that the guide lines authorize use of private counsel where the employee is the subject of a federal criminal investigation or the representation would involve asserting a position that conflicts with a government position. We indicated that while there was no ongoing criminal investigation or conflicting positions, “[b]oth the concern o f possible criminal conduct and the possible conflict arising
7 In a c o m m e n t th at underscores the fa c tu a l sim ilarities betw een the Perkins m atter and the present situ a tio n , w e n o ted in th e Perk in s opinion that "[b je c a u se denial o f re presentation appears to h ave been b a se d n o t on an in te rp re ta tio n of the J u s tic e D e p artm e n t's R epresentation G u id e lin e s, but ra th e r on u rg in g o f a U n ite d S ta te s Senator, the u s u a l grounds fo r p erm itting re presentation by private c o u n se l at fe d e ra l e x p e n s e are n o t re a d ily applicable.” Id. at 3.
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from Justice Department representation of Perkins appear to have motivated the agreement between Senator Nunn and Attorney General Civiletti . . . [and] therefore . . . reimbursement . . . can be supported by the principles underlying [the guidelines].” Id. at 5. Similarly, in the present situation, even though there are no pending criminal investigations or other conflicting positions, the Judiciary Committee has asserted that the Department has a conflict of interest, and in light of that position the Department has acqui esced to the Committee’s insistence that Department counsel not be present.
Finally, we should make it clear that this opinion addresses only the question you asked: whether as a general matter the Department has author ity to reimburse Department employees for private counsel fees in connection with the Judiciary Committee depositions. To answer that question in the affirmative, it has only been necessary to find that sufficient governmental inter ests are at stake in all of the depositions to justify representation by Department counsel — and when the Committee objected to the presence of Department counsel, representation by private counsel paid for by the Department.
You have not asked us to make the individualized inquiries necessary to determine whether the representation of any particular employee to whom this opinion applies may involve “purely personal” as well as governmental interests. Thus, we do not opine on “what, if any, portion of the representa tion” of particular employees should not be “provided by Government attorneys or at Government expense.” Perkins Memorandum at 4.8 We do note, how ever, that it would appear at this time that any personal interests are merely incidental to the governmental interests. After looking into the matter thor oughly, the Civil Division knows of no personal or official wrong-doing of which the employees could fairly be accused. Like all witnesses before Congress, the employees have “personal” interests such as being treated fairly, having a full and fair opportunity to respond, and avoiding being made an unfair target of congressional criticism; beyond that, these witnesses are ap pearing before Congress only because they did their jobs as Department employees. These personal interests would not appear to be of the kind this Office has previously identified as “purely personal.”9
CONCLUSION
We conclude, under these specific and unusual circumstances, that the Department may reimburse Department employees for legal fees they incur in connection with their representation by private counsel at the depositions
*See also Representation o f White House Employees , 4B Op. O .L .C . 749, 7 50 (1980) (“ W hite H ouse M em oran d u m ” ) (“ No g o vernm ent attorney, and no private atto rn ey retained at g o v e rn m e n t e x p en se m ay represent th e personal interests o f W hite H ouse em p lo y ees in connection w ith the S e n a te in v e sti gatio n ” )
9See W hite H ouse M em orandum , 4B O p. O .L .C . at 753 (“ [TJhe interests in avoiding fed eral c rim in a l p rosecu tio n , c iv il liability to the U nited States o r adverse ad m in istrative action by a federal a g en cy are c learly personal rather than governm ental in terests.” ).
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being conducted by the Judiciary Committee. You have not asked us to make the individualized inquiries necessary to determine whether the representa tion of particular employees includes representation of purely personal interests that should not be reimbursed. We do note, however, that we are unaware at this time of any such interests, The Civil Division concurs in our analysis and conclusions.
JOHN O. M cGINNIS
Deputy Assistant Attorney General Office o f Legal Counsel