The Attorney General's Role as Chief Litigator for the United States

• Court: Department of Justice Office of Legal Counsel
• Decided: January 4, 1982
• Status: Published

Opinion

The Attorney General’s Role as Chief Litigator for the United States

[The following m em orandum describes the developm ent and present scope of the Attorney G eneral's role in representing the United States and its agencies in litigation. It discusses the policy reasons for the centralization of litigation authority in the D epartm ent of Justice, and analyzes the A ttorney G eneral’s relationship with client agencies. It also touches on the Attorney G eneral’s authority to settle and com prom ise cases, and on his authority over litigation in international courts. It concludes that, absent clear legislative directives to the contrary, the Attorney G eneral has plenary authority and responsibility over all litigation to which the United States or one of its agencies is a party, and that his discretion is circum scribed only by the P resident’s constitutional duty to “ take Care that the Laws be faithfully executed."]

January 4, 1982

M EM ORANDUM OPINION FOR TH E ATTORNEY GENERAL

You have asked this Office to outline the role and responsibilities of the Attorney General in representing the United States in litigation in which the United States, or a federal agency or departm ent, is a party. In particular, you asked that we consider the Attorney G eneral’s authority and responsibility to make decisions with respect to litigation, even if those decisions may conflict with the views, desires, or legal analyses of other departments or agencies o f the United States, including those which may be “clients” in the particular litigation. Litigation involving agencies which have been granted express exclusive au­ thority by C ongress to conduct their own litigation is not within the scope of this m em orandum .1 Rather, the focus of this memorandum is litigation involving

1 C ircum stances in w hich the A ttorney G eneral lacks supervisory authority ov er litigation on b eh a lf o f the U n ited States include ( I ) L itigation in U nited S tates courts w here the A ttorney G eneral has no authority to determ ine w ho shall represent the U nited States, such as the U nited States Tax C ourt (26 U S -C . § 7452 specifies that the U nited States shall be represented by the C h ie f Counsel for the Internal Revenue Service o r his delegate) and the U n ited States C ourt of M ilitary A ppeals (10 U S C § 870 specifies that the U nited States shall be represented by the Ju d g e Advocate G eneral o r his delegate); (2) Litigation involving independent regulatory agencies w hich have been g iven the express statutory authority to conduct their ow n litigation using agency attorneys, e g ., the N ational L ab o r R elations Board (29 U S C § 154(a)); the Federal Power Com m ission (16 U .S .C . § 825m (c) pow er transferred to Federal Energy R egulatory C om m ission (42 U .S C . § 7172(a)(2)(A ) (Supp IV 1980)), the Interstate C o m m erce C om m ission (49 U .S .C . § 16(11) (S upp IV 1980)); and (3) Litigation involving Executive B ranch agencies w h ich have been granted independent litigating authority by C ongress, e g , the S ecretary o f L abor is au th o n zed to ap p o in t attorneys to represent the Secretary o r the Benefits Review Board in actions un d er the L on g sh o rem en ’s and H arb o r W orkers’ C om pensation A ct, except in the Suprem e C ourt, under 33 U S .C . § 921a. T here are also circum stances in w hich certain agencies have assum ed, notw ithstanding their lack o f ex p ress statutory authority, full responsibility for their ow n trial and appellate litigation, so far w ithout ob jectio n from the A ttorney G eneral. T h ese agencies, such as the Tennessee Valley A uthority and the Federal D eposit In su ran ce C orporation, have not been required to subm it to the A ttorney G eneral's su pervisory authority, apparently for C o ntinued

47 those agencies whose litigating authority is clearly subject to the Attorney G en eral’s direction, or whose statutory grants of authority are ambiguous or insufficient to remove them from the A ttorn ey General's supervision. We conclude that, absent clear legislative directives to the contrary, the Attorney G eneral has full plenary authority over all litigation, civil and criminal, to w hich the U nited States, its agencies, o r departments, are parties. Such authority is rooted historically in our com mon law and tradition, see Confiscation C a ses, 74 U . S . (7 W all.) 4 5 4 ,4 5 8 -5 9 (1868); The G ray Jacket, 72 U . S . (5 W all.) 370 (1866) and, since 1870, has been given a statutory basis. See 5 U .S.C . § 3106, and 28 U .S .C . §§ 516, 519. See gen erally U nited States v. San Jacinto Tin C o ., 125 U .S. 273 (1888). The Attorney General’s plenary authority is circum scribed only by the duty im posed on the President under Article II, § 3 of the C onstitution to “take Care that the Laws be faithfully executed.”

I. H istorical Development of the Role of the Attorney General

Plenary pow er over the legal affairs of the United States was vested in the Attorney G eneral when the Office of the Attorney General of the United States was first created by the Judiciary Act of 1789. Act of September 24, 1789, ch. 20, § 35, 1 Stat. 9 2 .2 T he Attorney G eneral’s statutory authority to conduct litigation to which the U nited States, its departm ents, o r agencies, is a party was more fully developed by C ongress in 1870, in the sam e legislation that provided for the creation of the D epartm ent of Justice. A c to f J u n e 2 2 ,1 8 7 0 ,ch. 1 5 0 ,16Stat. 162. Prior to 1870, however, the Attorney General’s authority in litigation matters involving the U nited States had been recognized by the Suprem e Court. In The G ray Jacket, 72 U .S . (5 W all.) 370 (1866), the C ourt held that no counsel would be heard for the U nited States in opposition to the views of the Attorney General. In the C o n ­ fisca tio n C a ses, 74 U .S. (7 W all.) 454 (1868), the Court concluded that:

W hether tested, therefore, by the requirem ents of the Judiciary A ct, or by the usage of the governm ent, or by the decisions of this

historical reaso n s, so m e o f w hich relate to th e ir financial independence as governm ent corporations. See D aniel J M eador, A ssista n t A ttorney G eneral, Office fo r Im provem ents in th e Adm inistration o f Justice, D raft M em orandum to the A ttorney G eneral and th e Assistant A ttorneys G eneral Re: G overnm ent Relitigation Policies (M ay 21, 1979), M em orandum to th e A ttorney G eneral from W illiam D . R uckelshaus (M ar 5, 1970) The operative statutes in these tw o c a s e s , 16 U S C § 831c(h), 83lx (T V A ) and 12 U S C § 1817(g) (FD1C), m erely give the ag en cies the au thority to sue and be sued— not to litigate independently of th e D epartm ent o f Justice. Presum ably, the A ttorney G en eral m ay reassert his supervisory authority at any tim e. 2 S ectio n 35 o f th e Ju d iciary Act provided in pertinent p art that [T ]here shall . . be appointed a m e e t person, learned in the law, to act as attorney-general for the U nited S tates, w ho shall be sworn o r affirm ed to a faithful execution of his office; w h o se du ty it shall be to prosecute an d conduct all suits in the S uprem e C ourt in w hich the United S lates shall be co n c ern ed , and to give his advice and opinion upon questions o f law when required by the P resident o f the U nited States, or w h en requested by th e heads of any o f the d ep artm en ts, touching an y m atters that m ay concern th e ir departm ents. “ D istrict a tto rn e y s," now know n as “ U nited States A tto rn ey s," w ere to be appointed to co n d u c t litigation in the low er co u rts o f the U nited S tates but w ere not placed under th e A ttorney G en eral’s authority until 1861 A ct of A ug. 2 , 1861, ch 37, 12 S tat 285. F ro m 1820 until 1861, the “district attorneys” w ere supervised by the D ep artm en t o f the T reasury. A ct of May 15, 1820, ch 107, 3 Stat 592

48 court, it is clear that all such suits, so far as the interests of the United States are concerned, are subject to the direction, and within the control of, the Attorney-General. 74 U .S. (7 Wall.) at 458-59. The' 1870 Act established the Department of Justice and designated the Attorney General as its chief legal officer. The Act provided that certain specified “solicitors” performing legal functions within the various agencies “shall be transferred from the Departments with which they are now associated to the Departm ent of Justice, . . . and shall exercise their functions under the supervi­ sion and control of the head of the Department of Justice.” ( § 3 ,1 6 Stat. 162.)3 The Act also authorized the Attorney General to designate any officer o f the Departm ent of Justice, including himself, to conduct and argue any case in which the government is interested, in any court of the United States, whenever he deems it necessary for the interest of the United States. (§ 5, 16 Stat. 162.) In addition, the Act gave the Attorney General supervisory authority over the conduct and proceedings of the various attorneys for the United States in the respective judicial districts, “and also of all other attorneys and c o u n s e llo rs employed in any cases or business in which the United States may be concerned.” (§ 16, 16 Stat. 164.) And finally, the Act forbade the Secretaries of the Executive D epartm ents to employ other attorneys or outside counsel at government ex­ pense, but “shall call upon the Department of Justice . . ., and no counsel or attorney fees shall hereafter be allowed to any person . . ., besides the respective district attorneys . . ., for services in such capacity to the United States, . . . unless hereafter authorized by law, and then only on the certificate of the Attorney-General that such services . . . could not be performed by the Attorney- G eneral, . . . or the officers of the Department of Justice.” (§ 17, 16 Stat. 164.) 16 Stat. 162. The initial motivation for this legislation was the desire to centralize the conduct and supervision of all litigation in which the government was involved, as well as to eliminate the need for highly paid outside counsel when government- trained attorneys could perform the same function. Other objectives of the legislation that were advanced in the congressional debates were to ensure the presentation of uniform positions with respect to the laws of the United States (“a unity of decision, a unity of jurisprudence . . . in the executive law of the United States”),4 and to provide the Attorney General with authority over lower court proceedings involving the United States, so that litigation would be better handled on appeal, and before the Supreme Court. S ee Cong. Globe, 41st C ong., 2d Sess., Pt. IV, 3035-39, 3065—66 (1870). See gen erally Bell, The Attorney G eneral: The Federal G overnm ent’s C h ief L aw yer an d C h ief Litigator, o r O ne Am ong M any?, 46 Fordham L. Rev. 1049 (1978); Key, The L egal Work o f the F ederal Governm ent, 25 Va. L. Rev. 165 (1938).

3 Prior to the A ct, C ongress had provided for the existence of “solicitors” in the various dep artm en ts and ag en cies, w ho were responsible for the legal affairs o f their respective departm ents See generally Key, The Legal Work o f the Federal Government, 25 Va L Rev 165 (1938). 4 C ong G lobe, 41st C ong . 2d Sess , Pt IV, 3035, 3036 (1870)

49 T he Suprem e C ourt considered this legislation in U nited States v. San Jacinto Tin C o ., 125 U .S. 273 (1888) and concluded that the Attorney General was “undoubtedly the officer who has charge of the institution and conduct of the pleas of the U nited States, and o f the litigation which is necessary to establish the rights o f the governm ent.” Id. at 279. Emphasizing the centralizing function of the D epartm ent o f Justice and the Attorney G eneral, the Court reasoned that the pow er to control government litigation must lie somewhere— that there must exist som e officer with authority to decide when the United States should sue, and to oversee the execution of such a decision— and that the Attorney General was designated such appropriate officer, in the Judiciary Act of 1789, by reference to the historical practice in England.5 125 U .S. at 278-80. In 1921, the Court added that the Attorney G eneral’s authority to conduct such litigation could be affected only by clear legislative direction to the contrary. Kern R iver C o. v. U nited S tates, 257 U .S . 147, 155 (1921). See also 21 Op. A tt’y Gen. 195 (1895). (The Secretary of the Navy was not warranted in employing counsel in a foreign country to institute suit in behalf of the United States, but should have referred the m atter to the Department of Justice, “which is charged with the duty of determ ining when the United States shall sue, for what it shall sue, and that such suits shall be brought in appropriate cases,” id. at 198.) Lower courts reached sim ilar conclusions with respect to subsequent re­ codifications of the 1870 legislation. The Court of Claims summarized the legislation in the following manner: These provisions are too comprehensive and too specific to leave any doubt that Congress intended to gather into the Depart­ m ent o f Justice, under the supervision and control of the Attorney- G eneral, all the litigation and all the law business in which the U nited States are interested, and which previously had been scattered am ong d ifferen t public officers, departm ents, and branches of the Government, and to break up the practice of frequently employing unofficial attorneys in the public service. P erry v. U n ited S tates, 28 Ct. Cl. 483, 491 (1893). Speaking for the Second C ircuit C ourt of Appeals, Judge Learned Hand emphasized the centralizing function o f the Attorney G eneral’s role as chief litigator for the United States and the necessity that that role be committed exclusively to the Attorney General: The government has provided legal officers, presumably com ­ p e te n t, ch arg ed with the d u ty of protecting its rights in its

5 T h is reference is to th e origin of the office of A ttorney G eneral, w hich was first created in the Judiciary A ct o f 1789, an d derived its function from the ro le of the A ttorney G eneral in E ngland. The C ourt stated. T h e ju d ic ia ry act o f 1789 . w hich first created the office of A ttorney G en eral, w ithout any very accurate definition o f his powers, in using the words that “ there shall also be appointed a m eet perso n , learned in t h e law, to act as A ttorney G eneral for the U nited S tates," 1 Stat. 93, c. 21, § 35, m ust have had reference to the sim ilar office w ith the sam e designation existing under the English law. A nd tho u g h it has been said th a t there is no com m on law o f the U nited States, it is still quite true that w hen acts o f Congress u se words w hich are fam iliar in the law o f E ngland, they are supposed to be used w ith reference to their m eaning in that law. 125 U .S . at 280

50 courts. . . . Congress, having so provided for the prosecution of civil suits, can scarcely be supposed to have contemplated a possible duplication in legal personnel. The cost of this is one consideration, but far more important is the centering of respon­ sibility for the conduct of public litigation. The Attorney General has powers of “general superintendence and direction” over dis­ trict attorneys (title 5, U.S. Code, § 317 [5 USCA § 317]), and may directly intervene to “conduct and argue any case in any court o f the United States” (title 5, U .S. Code, § 309 [5 USCA § 309]). . . . Thus he may displace district attorneys in their own suits, dism iss or compromise them, institute those which they decline to press. N o such system is capable o f operation unless his pow ers are exclusive, or if the D epartm ents m ay institute su its which he cannot control. H is pow ers m ust be coextensive with his duties. Sutherland v. International Insurance C o., 43 F.2d 96 9 ,9 7 0 (2d Cir. 1930), cert, denied, 282 U .S . 890 (1930) (emphasis added). In 1933, as part of a crusade to consolidate as much of the governm ent’s business as necessary to increase operating efficiency, President Roosevelt issued an executive order to supplement the existing legislative mandate o f centralized litigation authority. Executive Order No. 6166 (June 10, 1933), which requires all claims by or against the United States to be litigated by, and under the supervision of, the Department of Justice, is still in effect. The order provides in pertinent part: Claim s by or against the U nited States.

The functions of prosecuting in the courts of the United States claims and demands by, and offenses against, the Government of the United States and of defending claims and dem ands against the Government, and of supervising the work of United States attorneys, marshals, and clerks in connection therewith, now exercised by any agency or officer, are transferred to the D epart­ ment of Justice. As to any case referred to the Department of Justice for pros­ ecution or defense in the courts, the function of decision w hether and in what manner to prosecute, or to defend, or to com prom ise, or to appeal, or to abandon prosecution or defense, now exercised by any agency or officer, is transferred to the Departm ent of Justice. Reprinted in 5 U .S.C . § 901 note (1976).

II. Present Statutory Bases of the Attorney General’s Authority

These attempts to centralize the litigating function and authority of the federal government in the Department of Justice, with the Attorney General at its helm ,

51 are now codified in 5 U.S.C. § 3 1 06and 28 U .S .C . §§ 515-516. Section 3106 of Title 5 forbids the employment of outside counsel by executive agencies for litigation involving the United States unless Congress has provided otherwise, requiring instead that the m atter be referred to the Department of Justice.6 A lthough we have found no case law interpreting this provision, the language of § 3106 appears to limit the prohibition of payment to outside counsel for litigation, and litigation-related matters. However, in view of the centralization and uniform ity purposes underlying the 1870 Act and its progeny, we believe that, absent statutory authority to the contrary, the prohibition should be broadly interpreted to preclude payments to non-agency or non-Justice Department attorneys for (legal) advisory functions as well. See Scalia, Assistant Attorney G eneral, Office of Legal Counsel, Letter to Hoffman, General Counsel, D epart­ m ent of D efense (Mar. 2 6 ,1975).7 See a lso B oyle v. U n itedS tates, 309F .2d399, 402 (Ct. Cl. 1962) (quoting from a 1957 letter by the Comptroller General: “ [I]n the absence o f urgent and com pelling reasons, a Government agency may not procure from an independent contractor services normally susceptible of being perform ed by Government em ployees.”). Nevertheless, the Attorney General may em ploy outside counsel to perform legal duties under his direction. Sections 515 and 543 of Title 288 authorize the Attorney General to commission “special attorneys” to assist United States Attorneys, or to “conduct any kind of legal proceeding, civil or criminal, . . . which U nited States attorneys are authorized by law to conduct . . .

6 5 U S C § 3106 provides in pertinent p a rt that. [ejx cep t as otherw ise authorized b y law, the head o f an E xecutive d epartm ent o r m ilitary d e p a rtm e n t m ay not em ploy an attorney or counsel for th e conduct o f litigation in w h ich the U nited S tates, an agency, o r em ployee th e re o f is a party, or is interested, o r for the securing o f evidence therefor, b u t shall refer the matter to the D epartm ent o f Justice. 7 A lthough the S calia letter w as written in response to an inquiry regarding the use o f o u tside counsel by an ag en cy in co n n e ctio n w ith th e investigation o r prosecution of adm inistrative claim s, the p rin cip les expressed therein a re broadly applicable In p rohibiting the use o f outside co u n s e l by the several d ep artm en ts, C ongress concentrated all th e G o v ern m en t’s law business in th e D ep artm en t of Ju stice— not on ly litigation, b ut also advisory functions. T h is w as thought to be n ec essary in order to provide fo r uniform legal interpretations th ro u g h o u t the E xecutive branch . . . C ongress later departed from the principle that all legal activ ities o f the G overnm ent were to be carried out by the D epartm ent of Ju stice; subsequent le g islatio n , authorizing and funding agency legal staffs, perm itted legal m atters not involving litigation to be han d led in the v arious agencies. T h o se changes w ere taken into account when C o n g re ss, in 1966, codified the vario u s provisions o f th e law go in g back to the D epartm ent o f Ju stice A ct o f 1870. S ee, e.g , H islo ric a la n d Revision N otes to 5 U .S .C 3 1 0 6 a n d 2 8 U S C 516. T h e re is, how ever, no indicauon o f a C ongressional intent to relax the p ro hibition against en g a g em en t o f outstde counsel by ag e n cies other than th e D epartm ent of Justice. T his principle rem ain s in effect w ith respect to b o th litigation reserved to th e D epartm ent o f Justice and nonlitigative m atters handled w ithin the several agencies. L e tte r at 4-5 (fo o tn o tes and citations o m itte d ) (em phasis added). 8 28 U .S .C . § 515(a), p ro v id e s tn p ertinent part that. [t]he A ttorney G eneral o r any other offic er of the D epartm en t of Ju stice, o r any attorney specially a p pointed by the A ttorney General u n d e r law, may, w h en specifically directed by the A ttorney G e n e ra l, co n d u ct any kind of legal p ro cee d in g , civil o r c rim in a l. . w hich U nited States attorneys are authorized by law to conduct, w h eth e r or not he is a resident o f the district in which the p ro cee d in g is brought 28 U .S .C . § 543 provides: (a) T h e A ttorney G eneral may a p p o in t attorneys to assist United S tates attorneys w hen the public in terest so requires (b ) Each attorney appointed u n d er this section is su b jec t to rem oval by the A ttorney G eneral.

52 Sections 5 15-519 of Title 28 codify the law growing out of the 1870 Act which consolidated the power to conduct litigation involving the United States in the Department of Justice, and granted the Attorney General supervisory authority over such litigation. The principal provisions granting such authority are §§ 516 and 519. Section 516 provides that

[e]xcept as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.

Section 519 provides that

[e]xcept as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agen­ cy, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties.

However, as with the previous legislative and executive efforts designed to centralize the litigating functions of the United States, these provisions have been undercut by exceptions authorized by Congress which grant agencies or depart­ ments litigating authority independent of the Department of Justice. See Bell, The A ttorn ey G eneral: The F ederal Governm ent's C h ief L aw yer an d C h ief Litigator, or O ne Am ong M any?, 46 Fordham L. Rev. 1049 (1978); M emoran­ dum to the Attorney G eneral, from William D. Ruckelshaus (Mar. 5, 1970); Key, The L egal Work o f the F ederal Governm ent, 25 Va. L. Rev. 165 (1938).9 As of 1978, some 31 Executive Branch and independent agencies were authorized to conduct at least some of their own litigation. Bell, supra, at 1057. Although this memorandum does not address those cases in which agencies have been granted independent litigating authority, the lines between the Attorney G eneral’s au­ thority and that which has been delegated to the agencies have at times been drawn ambiguously, and in those cases, the Attorney General frequently asserts his historic authority over the litigation proceedings.

9 C ongress has thus far m aintained virtually unim paired the A ttorney G eneral's control over the in itiation of crim inal proceedings See, e.g , 15 U S C . § 77t(b) (SEC ), 16 U S C § 825m (a) (FPC). The preservation o f such authority in the A ttorney G eneral is, we believe, sound constitutional policy, in view o f the Executive s co n stitu ­ tional m andate to take care that the laws be executed faithfully. S uch a responsibility carries w ith it the vindication of public rights through the institution of crim inal proceedings against those w ho violate the laws w hich the Executive adm inisters As the Executive s ch ief legal officer, the A ttorney G eneral is singularly suited to carry o ut this responsibility Sim ilarly, the A ttorney G en eral’s authority to conduct cases in the S uprem e C ourt has rem ained u ndiluted Section 518 o f Title 2 8 , w hich reserves the conduct and argum ent in the S uprem e C o u rt of suits and ap p e als “ in w hich the U nited States is interested" to the A ttorney G eneral and S olicitor G e n e ra l. does not co ntem plate existing o r future statutory authorizations to the agencies, as do §§ 516 and 519 However. 518 does perm it the A ttorney G eneral to “direct o therw ise,” in particular cases

53 III. Supervisory Authority in the Context of Jointly Conducted Litigation

A . P olicy C on sideration s

T he policy considerations w hich support the centralization of federal litigating authority in the Department o f Justice, under the supervision of the Attorney G eneral, are many. In addition to the “ unity of decision, unity of jurisprudence” goals that were articulated in the 1870 congressional debates, the centralization of authority and supervision over federal litigation in the Department of Justice m eets several other objectives: (1) the coordination of lower court proceedings, w hich enhances the ability of government lawyers to select test cases presenting the governm ent’s positions in the best possible light; (2) the facilitation of presidential supervision, through the Attorney General, over Executive Branch policies that are implicated in litigation; (3) the allowance for greater objectivity in the filing and handling of cases by attorneys who are not themselves the affected litigants; and (4) the increased effectiveness in the handling of appeals and Suprem e C ourt litigation which results from centralized control over lower court proceedings. S ee generally M em orandum to the Attorney General from W illiam D. Ruckelshaus, Re: Encroachm ents upon the Authority of the Attorney G eneral to Supervise and Control the G overnm ent’s Litigation (Mar. 5, 1970). S ee a lso H arm on, Office of Legal Counsel, Memorandum for the Associate A ttorney G eneral (D ec. 11, 1980). C entralization of federal litigating authority in the Department of Justice, under the supervision of the Attorney G eneral, is vitally necessary to ensure the Attorney G eneral’s proper discharge of his duty to oversee the legal affairs of the U nited States with which Congress has entrusted him. Centralization ensures that the Attorney G eneral is properly informed of the legal involvements of each of the agencies for which he is responsible; supervisory authority permits him to act on that know ledge. In this way, the Attorney G eneral is better able to coordinate the legal involvem ents of each “client” agency with those of other “client” agencies, as well as with the broader legal interests of the United States overall. Yet, while the “client” agencies may be involved, to varying degrees, in carrying out the litigation responsibilities necessary to assist the Attorney General in representing the agency’s particular interests, it is essential that the Attorney General not relinquish his supervisory authority over the agency’s litigation functions, for the Attorney G eneral alone is obligated to represent the broader interests of the Executive. It is this responsibility to ensure that the interests of the United States as a w hole, as articulated by the Executive, are given a paramount position over potentially conflicting interests between subordinate segments of the government of the U nited States which uniquely justifies the role of the Attorney General as the ch ief litigator for the United States. Only the Attorney General has the overall perspective to perform this function. N evertheless, it must be stressed that in exercising supervisory authority over the conduct of agency litigation, the Attorney General will generally defer to the

54 policy judgm ents of the client agency. This deference reflects a recognition of the agency’s considerable expertise in the substantive area with which it is primarily concerned. Strictly speaking, “policy” judgm ents are confined to those substan­ tive areas in which the agency has developed a special expertise and in which the agency is vested by law with the flexibility and discretion to make policy judgm ents. However, it is increasingly the case that policy concerns are im pli­ cated in decisions dealing with litigation strategy, and in such cases, the Attorney General will accommodate the agency’s policy judgm ents to the greatest extent p o s s ib le w ith o u t c o m p ro m is in g th e law, o r b ro a d e r n a tio n a l p o lic y considerations. It is in the context of these dual representation functions— in which there exists inherent potential for conflict between “clients”— that questions of representation arise. Circum stances frequently develop in which the Attorney General and client agencies disagree as to the proper course of the litigation— including strategy, legal judgm ents, settlement negotiations, and policy judgm ents which impact on the litigation. Such circumstances frequently present the question whether the Attorney General should continue to represent the client. The simple answ er is yes. The Attorney General has not only the statutory authority to represent the agencies over whose litigation he exercises supervisory authority, but, indeed, the du ty to do so, “ [e]xcept as otherwise authorized by law.” 28 U .S .C . §§ 516, 519. The Attorney G eneral’s authority and duty to represent these agencies are described more particularly by the specific legisla­ tion which sets forth his and the agencies’ respective litigation responsibilities, and occasionally, in “M em oranda of Understanding” entered into by the Attorney General and specific agencies apportioning such responsibilities. Nevertheless, unlike the private attorney, the Attorney General does not have the option of withdrawing altogether from the representation of client agencies, as long as interests of the United States for which he is held responsible are at stake. However, recognition of the very real difficulties which are posed in the context of litigation jointly conducted by the Attorney General and “client” agencies— particularly in view of the agencies’ greater staffing resources, more intimate fam iliarity with the subject matter of the litigation, greater visibility to the public as a litigant, and more involvement in the day-to-day administration of field offices— tends to suggest that a more practical understanding of the Attorney General’s authority and duty to represent client agencies may be needed. Dis­ tinguishing policy judgm ents from legal judgm ents in litigation matters— the former being primarily the province of the agencies and the latter being reserved to the Attorney General— helps to provide not only a more reasonable and efficient use of governm ent resources, but a workable framework for resolving most disputes that may result in representation crises. Nevertheless, because of his unique responsibilities in representing government-wide interests as well as those of particular “client” agencies, the final judgm ent concerning the best interests of the United States must be reserved to the Attorney General. B. L egislative Exceptions to the A ttorney G en eral’s Authority Although Congress has over the years responded, in varying degrees, to the multitude of pressures exerted by agencies seeking independent litigating au­

55 thority, the courts have continued to give greater weight to the strong policy objectives w hich recommend centralization. As a result, the “otherwise autho­ rized by law” language creating th e exception to the Attorney G eneral’s authority in 28 U .S .C . §§ 516 and 519 has been narrowly construed to perm it litigation by agencies only when statutes explicitly provide for such authority. S ee M arsh all v. G ib so n ’s P rodu cts. In c., 584 F.2d 6 6 8 ,6 7 6 n. 11 (5th Cir. 1978); IC C v. Southern Railway, 543 F.2d 534, 535-38 (5th Cir. 1976); In re G rand Jury Subpoena of P ersico, 522 F.2d 41 , 54 (2d Cir. 1975); FTC v. Guignon, 390 F.2d 323 (8th Cir. 1968); U n ited S ta tes v. Tonry, 4 33 F. Supp. 620 (E.D . La. 1977). A lthough the legislative history of Sections 516 and 519 is relatively sparse— in fact, the “ history” is contained almost entirely in the “Historical and Revision N otes” prepared by the revisers o f Title 5 in 1966— the courts’ strict interpreta­ tion of these provisions is supported not only by the historical antecedents of these statutes and the policy considerations discussed above, but also by the R eviser’s Notes to the 1966 am endm ents.10 The revisers state, with respect to both Sections 516 and 519, that th e sections were revised to express the effect of existing law, which does permit agency heads, “ with the approval o f Congress, [to employ] attorneys to advise them in the conduct of their official duties. . . .” 28 U .S .C . § 516 note (emphasis added). The revisers further state that “ [t]he words ‘Except as otherwise authorized by law ,’ are added to provide for existing and future exceptions (e.g., section 1037 of title 10).” § 516 note; 28 U .S.C . § 519 note. Thus the revisers have indicated that existing and future grants of litigating authority that are at least as express as the language contained in 10 U .S .C . § 1037 are to be excepted from the Attorney G eneral’s broad grant of authority under §§ 516 and 519 o f Title 28. Section 1037 of Title 10 permits the Secretaries o f the various military departm ents to “employ [private] counsel” for the “representation” of persons subject to the Uniform Code of Military Justice “before the judicial tribunals and administrative agencies” of foreign nations. W hile nothing in the legislative history of § 1037 indicates a congressional intent to create an exception to the predecessors of §§ 516 and 519, Congress made clear in 1966 that the operative language, “the Secretary concerned may employ counsel . . . incident to the representation before . . . judicial tribunals” was sufficient to trigger the exception." See H .R. Rep. No. 1863, 84th C ong., 2d Sess. (1956); S. Rep. No. 2544 , 84th C ong., 2d Sess. (1956). See generally Office o f Legal C ounsel, M em orandum to Peter R. Taft (Aug. 27, 1976). In order to com e within the “as otherwise authorized by law” exception to the Attorney G eneral’s authority articulated in 28 U .S .C . §§ 516 and 519, it is necessary that Congress use language authorizing agencies to employ outside

10 28 U S C §§ 5 1 5 -5 2 6 (1976), Pub L. N o . 89-554, § 4(c), 80 Stat 613 is the m ost recent codification o f the pro v isio n s co n tain ed in the 1870 Act creating the D epartm ent of Justice Prior to 1966, these p rovisions were codified in T itle 5 11 I 0 U S C § 1037 was. adopted in 1956, p r io r to the 1966adoption o f 28 U S C §§ 516 and 5 19, and provides in p ertin en t part: (a) U nder regulations to be prescribed by him , the S ecretary concerned m ay em ploy co u n sel, an d pay counsel fees, co u rt costs, bail, a n d other expenses incident to the representation, before the ju d ic ia l tribunals and adm inistrative agencies o f any foreign nation, o f persons subject to the U niform C o d e o f M ilitary Justice.

56 counsel (or to use their own attorneys) to represent them in court. See, e .g ., 49 U.S.C . § 16(11) (Interstate Commerce Commission); 16 U .S.C . § 825m(c) (Federal Power Commission); 12 U .S.C . § 1464(d)(1) (Federal Home Loan Bank Board); 29 U .S.C . § 154(a) (National Labor Relations Board);12 5 U .S.C . § 7105(h) (Supp. IV 1980) (Federal Labor Relations A uthority).13 However, even agencies to which Congress has granted independent litigating authority may be prohibited from conducting their own litigation in the Supreme Court. See, e .g ., 42 U .S.C . § 2000e-4(b)(2) (Equal Employment Opportunity Commission); 5 U .S.C . § 7105(h) (Supp. IV 1980) (Federal Labor Relations A uthority).14 More ambiguous language, which, for example, authorizes an agency to “sue and be sued,” 15“bring a civil action,” or “ invoke the aid of a court,” has been considered by some courts to be insufficient to confer independent litigating authority. See. e .g ., ICC v. Southern Railway, 543 F.2d 534 (5th Cir. 1976); FTC v. Guignon,

,2 These statutes provide as follows I C C — 4 9 U .S C § 16(11) The C om m ission may employ such attorneys as it finds necessary for proper legal aid and service of the C om m ission or for proper representation o f the public interest*, in investigations made by it . o r to appear fo r or represent the Commission in any case in court. F P C — 16 U S C 8 825m(c)— language substantially sim ilar to that provided for I C C Federal H ome Loan Bank Board— 12 U .S C . 1464(d)(1) The Board shall have pow er to cnforce this section and rules and regulations m ade hereunder In the enforcem ent o f any provision of this section o r rules and regulations made h ereunder . the Board is authorized to act in its ow n nam e and through its own attorneys . . N ational Labor R elations Board— 29 U S .C . § 154(a) Attorneys appointed under this section may. at the direction of the B oard, appearfor and represent the Board in any case in court. (Em phases added ) O f course, these authorizations must be read within the context of the w hole statutory sch em e of which they are a part— in som e instances these agencies are represented by the D epartm ent o f Justice. 13 Language sim ilar to that contained in the statutes cited in n. 12, supra was recently held by the D istrict C o u rt for the D istrict of C olum bia to confer independent litigating authority on the Federal L abor Relations A uth o rity (FLR A), including the litigation o f proceedings u n d er the Freedom of Inform ation A ct, 5 U S C . § 552 See AFGE v Gordon, C A N o. 81-1737 (D D C O ct. 23. 1981) T he statute construed by the court as granting the FLR A independent litigating authority. 5 U S C § 7105(h) (Supp IV 1980), provides- Except as provided in section 518 o f title 28. relating to litigation before the S uprem e C ourt. attorneys designated by the Authority may appear fo r the Authority and represent the Authority in any civil action brought in connection w ith any function carried out by the A uthority pursuant to this title or as otherw ise authorized by law The A ppellate Section of the C ivil D ivision has recom m ended that the D epartm ent o f Justice not ap p eal this decision N evertheless, the D epartm ent has m aintained vigorously in the past, and w ill continue to m aintain, that broad grants o f independent litigating authority, sim ilar to those discussed above, d o not encom pass cases arising under adm inistrative statutes that apply govem m ent-w ide T his view is supported by the strong policy im peratives o f “ unity in the executive law o f the U nited S tates." infra at 5, as well as som e legislative history See H R C o n f Rep N o 539, 95th Cong . 1st Sess. 72 (1977). reporting on the D epartm ent o f Energy O rganization A ct. Pub L No 95 -9 1 . 91 Stat 5 6 5 . w hich established the Federal Energy R egulatory C om m ission 14 42 U S .C § 2000e-4(b)(2) provides Attorneys appointed u n d er this section may, at the direction of the C om m ission, ap p ear for and represent the C om m ission in any case in co u rt, provided that the Attorney General shall conduct all litigation to which the Commission is a parly in the Supreme Court pursuant to this subchapter. 5 U S C § 7105(h) (S upp IV 1980) provides: Except as provided m section 518 c f title 28. relating to litigation before the Supreme Court, attorneys designated by the A uthority m ay appear for the A uthonty and represent the A uthority in any civil action brought in connection w ith any function carried out by the A uthority pursuant to this title o r as otherw ise authorized by law (E m phases added ) 15 T he Office o f Legal Counsel view s “sue and be sued” language as m erely designating the agency as a “ju ral en tity ” w hich m ay sue o r be sued in its ow n nam e, and not as rem oving the ag e n cy ’s representation from the d om ain o f the Department o f Justice pursuant to 28 U S C § § 5 1 6 and 519 See M eador, Draft M em orandum Re G overnm ent R elitigation Policies, supra, at 19, n 51. cuing an interview w ith H M iles Foy III, D epartm ent of Justice. Office of Legal Counsel

57 390 F.2d 323 (8th Cir. 1968). S ee gen erally Harmon, Office of Legal Counsel, M em orandum for the Associate Attorney General (Dec. 11, 1980); Meador, Office for Im provem ents in the Administration of Justice, Draft Memorandum (M ay 2 1 ,1 9 7 9 ); Office of Legal C ounsel, Relationship of Proposed Amendments to the Adm inistrative Procedure Act . . . to the Department of Justice Policy of O pposition to Litigation Power Outside of the Department (Apr. 29, 1974); M em orandum to the Attorney G eneral from W illiam D. Ruckelshaus, supra; but se e SE C v. R obert C ollier & C o ., 76 F.2d 939 (2d Cir. 1935). O ther language which does grant agency attorneys authority to litigate, but provides that such authority shall be exercised under the direction and control of the Attorney G eneral, provides the framework for “M emoranda of Understand­ ing” (M OUs) between the agencies and the Department of Justice, which apportion the litigation responsibilities between the Department and the agen­ cies. S ee, e .g ., 2 9 U .S .C . § 204(b) (Fair Labor Standards Act); the Age Discrim­ ination Em ploym ent Act of 1967, Pub. L. N o. 90-202, 81 Stat. 6 0 2 .16 These m em oranda usually specify both the categories o f cases in which agency counsel may appear and the nature of the Attorney G eneral’s continuing control and supervision over such cases. We believe that the sharing of litigation respon­ sibilities under MOUs is proper, as long as the Attorney General retains ultimate authority over the litigation. Moveover, the rationale underlying these arrange­ m ents is an em inently sensible one. The efficiency and expertise objectives in governm ent litigation are thereby m axim ized, without sacrificing the Attorney G en eral’s statutory role as chief government litigator, and the responsibilities and prerogatives which attach thereto. N evertheless, as a practical matter, MOUs do compromise the Attorney G eneral’s control, if not authority, over the conduct of agency litigation. Agen­ cies eager to control their own litigation may proceed to negotiate settlement agreem ents, send out “no action” letters, depose witnesses, and otherwise represent the agency’s position to the public without consultation or assistance from the Attorney G eneral, leaving the Attorney General with afa it accom pli and a potential equitable barrier to his subsequent assertion of control over the litigation.17 Such occurrences effectively undermine the Attorney General’s 16 29 U .S .C . § 204(b) perm its D epartm ent o f Labor attorneys to “ appear for and represent” the A dm inistrators of the FL S A and A D E A “ in any litigation," but subjects all such litigation “to the direction and control of the A ttorney G eneral ” T he S ecretary o f L abor and the A ttorney G eneral have entered into a series o f understandings w hich p rovide that D epartm ent o f L abor attorneys w ill ordinarily handle all appellate litigation pursuant to the A cts, but p erm it th e A ttorney G eneral to take part in th e conduct o f such ca ses as he deem s to be in the best interest o f the U nited States 17 We d o not m ean to suggest that agencies acting beyond the sco p e o f their litigating authority in settling claim s legally b in d the U nited S tates, rather, we re fe r only to the c o n fu sio n , ill w ill, and lack o f confidence that w ould accrue to the agency in its public relations should the A ttorney G en eral reverse the agency's actions, as well as the practical difficulties inherent in such a reversal See Dresser Indus., Inc v United States. 596 F.2d 1231, 1236 (5th Cir. 1979), cert, denied, 444 U S 1044 (1980): It is well established that (he federal governm ent w ill not be bound by a contract o r agreem ent en tered into by on e of its agents unless such agent is acting w ithin the lim its o f his actual authority. . . A s the S uprem e C o u rt staled in [Federal Crop Ins Corp v Merrill. 332 U .S . 380 (1947)] W hatever the form in w hich the G overnm ent functions, an yon e entering into an arrangem ent with the G overnm ent takes th e risk of having accurately ascertain ed that he w ho purports to act for the G overnm ent stays w ithin the bounds o f his authority. T h e scope o f this authority may be exphctly defined by C o n g ress or be limited by delegated legislation, properly exercised through the rule- m aking pow er A nd this is so even th o u g h . the ag e n t him self m ay have been unaw are o f the lim itations upon his authority 332 U S at 384

58 ability to perform the dual litigating functions with which he is charged. Recog­ nizing that the efficiency and expertise objectives in government litigation necessitate the sharing of litigation responsibilities in most cases, care should be taken to make explicit in these arrangements the Attorney G eneral’s overriding authority in directing the litigation. While the Attorney General may delegate some litigating authority under the MOUs, he may not delegate the ultimate responsibility which is by law vested exclusively in the Attorney General. See Harmon, Office of Legal Counsel, M emorandum for the Associate Attorney General (Dec. 11, 1980). Thus, the Attorney General should make clear to the client agency his willingness to support the Assistant Attorney General and line attorneys in the enforcement of his prerogatives under the M O U .18

IV. Settlement and Compromise Authority

Included within this broad grant of plenary power over government litigation is the power to com promise and settle litigation over which the Attorney General exercises supervisory authority. This power “to com promise any case over which he has jurisdiction upon such terms as he may deem fit” is “in part inherent in [the Attorney G eneral’s] office and in part derived from statutes and decisions.” 38 Op. A tt’y Gen. 124 (1934). This authority was the subject of President Roosevelt’s Executive Order No. 6166, (June 10, 1933), reprin ted in 5 U .S .C . § 901 note (1976), which provided that “ . . . the function of decision w hether . . . to com prom ise . . . appeal . . . [or] abandon prosecution or defense, now exercised by any agency or officer [of the United States], is transferred to the Department of Justice.” See infra at 7 -8 . With respect to the power to com pro­ mise, Attorney General Cummings observed that

it is a power, whether attaching to the office or conferred by statute or Executive order, to be exercised with wise discretion and resorted to only to promote the Government’s best interest or to prevent flagrant injustice, but that it is broad and plenary may be asserted with equal assurance, and it attaches, of course, imme­ diately upon the receipt of a case in the Department of Justice, carrying with it both civil and criminal features, if both exist, and any other matter germane to the case which the Attorney General may find it necessary or proper to consider before he invokes the aid o f the courts; nor does it end with the entry of judgm ent, but embraces execution ( U nited States v. M orris , 10 Wheat. 246).

18 A dditional litigating authority, independent of the A ttorney G eneral, was g ranted to certain ag en cies b y the H obbs A ct. 28 U S C §§ 2342, 2348 (1976 & Supp IV 1980). The H obbs A ct grants specified agencies authority to intervene in appellate proceedings “of their ow n m otion and as o f rig h t/' even though the A ttorney G en eral “ is responsible for and has control o f the interests o f the Government** in the proceedings N o tw ithstanding the A ttorney G en eral’s overall authority, he “ may not dispose of or discontinue the pro ceed in g ” ov er the ob jectio n o f the intervening agency, and the agency “ may prosecute, defend, o r continue the proceeding u n affected b y the actio n o r inaction of the A ttorney G eneral ”

59 38 Op. A tt’y G en. 98, 102 (1934).19 In these opinions, Attorney General C um m ings concluded that the Attorney G eneral’s authority to settle cases ex­ tended even beyond that which would have been available to the agency charged with adm inistering the underlying law.20 Executive O rder N o. 6166, together with Sections 516 and 519 of Title 28 of the U .S. Code (and their predecessor provisions), have been interpreted consis­ tently by the courts to vest the Attorney General with virtually absolute discretion to determ ine w hether to compromise or abandon claims made in litigation on behalf of the U nited States. S ee N ew York v. N ew Jersey, 256 U .S. 296, 308 (1921); U nited S tates v. N ew port N ew s Shipbuilding & D ry D ock C o ., 571 F.2d 1283 (4th Cir.), cert, denied, 4 39 U .S. 875 (1978); Smith v. U nited States, 375 F.2d 243 (5th Cir.), cert, denied, 389 U .S. 841 (1967); H albach v. M arkham, 106 F. Supp. 475, 479-81 (D .N .J. 1952), aff'd , 207 F.2d 503 (3d Cir. 1953). In deciding to settle or abandon a claim , or not to prosecute at all, the Attorney G eneral is not restricted to considerations only of litigative probabilities, but rather may m ake a decision, in his discretion, on the basis of national policies espoused by the Executive. Smith v. U nited States, supra. The only limitations placed on the Attorney General’s settlement authority are those which pertain to his litigating authority generally— i.e ., explicit statements by Congress circum ­ scribing his settlem ent authority,21 see, e .g ., 8 U .S.C . § 1329 (1976) (prohibit­ ing settlem ent o f suits and proceedings brought under Title II of the Immigration Act w ithout consent of the court in which the suit or proceeding is pending), and the duty im posed on the President by Article II, § 3 of the Constitution to “take Care that the Laws be faithfully executed. . . . ” See gen erally Office of Legal C ounsel, M em orandum for Sanford Sagalkin (Sept. 4, 1980); Office of Legal C ounsel, M em orandum to James W. M oorm an (Oct. 30, 1979). To guide the A ttorney General in the exercise o f his settlement discretion, the 1934 opinions of A ttorney G eneral Cummings proposed a “promote the Government’s best inter­ est, or . . . prevent flagrant injustice” standard. See 38 Op. A tt’y Gen. at 102.

19 A s ea rly as 1831, A ttorney General Taney observed that. A n attorney co n d u c tin g a suit fo ra p arty has, in the absence of that party, a n g h t to discontinue it w henever, in his ju d g m e n t, the interest of his client requires it to be do n e If he abuses this power, he is liable to the clien t whom he injures. A n attorney o f the U nited States, ex cep t in so far as his pow ers m ay be restrained by particu lar acts o f C o n g ress, has the same authority and control over the suits w hich he is co n ducting The public in terest and the principles of ju s tic e require that he sho u ld have this pow er . . [S]ince he can n o t c o n su lt his client (the United S tales), the sanction o f the court is regarded as sufficient evidence that he exercised the pow er honestly and discretely 2 O p. A tt'y G en 4 8 2 ,4 8 6 - 8 7 A ttorney G eneral C um m ings cited this opinion approvingly. 38 O p A u ’y G e n at 99 20 T h e o p in io n s found in 38 O p A tt’yG en a t 9 4 ,9 8 ,1 2 4 d is c u s s t h e A ttorney G en eral’s authority to com prom ise in com e tax ca ses in the absence o f bona fide d isp u te d questions o f fact A ttorney G eneral C um m ings concluded that he did po ssess th e authority to settle such cases, even though the S ecretary had no statutory authority to com prom ise in com e tax ca ses in th o se circum stances 21 W ith respect to actions brought under th e Federal Tort C laim s A ct, 28 U .S C §§ 2 6 7 1 -2 6 8 0 (1976), fo r ex am p le, th e A ttorney G eneral o r his designee now has the authority to arbitrate, co m p ro m ise, o r settle claim s b ro u g h t u n d er the A ct after January 17, 1967, 28 U .S .C § 2677 (1976); p nO T to the 1966 am endm ents, court approval w as required before the Attorney G eneral was perm itted to effect a settlem ent C ongress also prescribed a p ro ced u re in the 1966 am en d m en ts which g ran ted agencies authority to settle claim s u n d er $ 2 5 ,0 0 0 w ithout prio r w ritten approval by the A ttorney G eneral of th a t specific settlem ent arran g em en t, as long as the arrangem ent was m ade in acco rd an ce w ith general regulations prescribed by the A ttorney G eneral 28 U S C . § 2672 (1976)

60 V. Litigation in International Courts Similarly, the Attorney G eneral’s authority over litigation involving the Unitec States before the International Court of Justice (ICJ) is plenary. Although the Attorney G eneral’s supervisory authority has been challenged only once since the 1966 codification of the broad grant of authority contained in 28 U .S.C . § § 5 1 6 and 519, that challenge was resolved by reference to the broad scope of the statutory provisions as well as Department of Justice regulations contained in Title 28 of the Code of Federal Regulations. In the connection with the litigation between the United States and Iran in 1980, a dispute arose between the Department of State and the D epartment of Justice concerning the Attorney G eneral’s authority to represent the United States before the ICJ. The Legal Adviser expressed the view that the State Departm ent, by virtue of its premier role in United States foreign policy and international relations, had been historically charged with the responsibility for international affairs involving the United States, including legal matters. In response, A t­ torney General Civiletti cited the unambiguous language of §§ 516 and 519, and noted the absence of both statutory law and formal opinions which would “otherwise authorize” the Department of State to conduct litigation independent of the Attorney G eneral’s supervision. Attorney G eneral’s letter to the Legal Adviser, D epartm ent of State (Apr. 21, 1980).22 In addition, 28 C.F.R. § 0.46 (1980)2-1 makes clear that the Attorney G eneral’s litigation authority is not limited to domestic m atters, but rather includes litigation “ in foreign courts, special proceedings, and similar civil matters not otherwise assigned.” See gen erally D. Deener, The United States Attorneys General and International Law (1957).24 VI. Conclusion In short, the Attorney General, as the chief litigation officer for the United States, has broad plenary authority over all litigation in which the United States, 22 At President C arter s request. A ttorney G eneral C iviletti personally conducted the Iran litigation before the ICJ, assisted by the Legal A dviser to the S tate D epartm ent, w hom the A ttorney G en eral com m issioned as a “S pecial A ssistant,” pursuant to 28 U S .C . § 515 21 28 C F R § 0 46 (1980) provides* The A ssistant A ttorney G eneral in charge of the Civil D ivision sh all, in addition to litigation com ing w ithin the scope o f § 0 .4 5 , direct all other civil litigation including claim s by or against the U nited S tates, its agencies o r officers, in dom estic or foreign courts, special proceedings, and sim ilar civil m atters not otherw ise assigned, and shall em ploy foreign co u n sel to represent before foreign crim inal courts, com m issions o r adm inistrative agencies officials o f the D epartm ent of Justice and all o ther law enforcem ent officers o f the United States w ho are charged with violations o f foreign law as a result o f acts which they perform ed in the course and sco p e o f th eirG ovem m ent service 24 D eener discusses the historical role of the A ttorney G eneral in providing legal advice o n questions of international law and concludes* T he Judiciary A ct of 1789 did not specifically charge the A ttorney G eneral with the duty of giving legal advice on questions of international law On the other hand, the act did not restrict the “questions of law ” that could be referred to the A ttorney G eneral to those involving dom estic m atters only A ctually, alm ost from the very beginning, the President and the departm ent heads subm itted questions involving the law of nations to the ch ief law officer, and succeeding Presidents and cabinet officers have continued to subm it such questions as a m atter o f established practice C ongress apparently recognized this practical interpretation o f the statutes defining the A ttorney G eneral's duties At any rate. C ongress has never deem ed it necessary to ch an g e the statutes in this respect. Deener, supra, at 1 0 -1 1 (footnotes om itted)

61 or its federal agencies or departm ents, are involved. This authority is widerang- ing, em bracing all aspects of litigation, including subpoena enforcem ent, settle­ m ent authority, and prosecutorial discretion. The reservation of these powers to the Attorney G eneral is grounded in our com m on law tradition, Acts of Congress (principally, 5 U .S .C . § 3106, and 28 U .S .C . §§ 516 and 519), various ex­ ecutive orders, and a long line o f Suprem e C ourt precedent. These powers can be eroded only by other Acts of Congress, and the Executive’s constitutional com m and to faithfully execute the laws. Im plicit in this broad grant o f authority is the recognition that the Attorney General m ust serve the interests of the “client” agency as well as the broader interests o f the United States as a whole in carrying out his professional duties. The Attorney G eneral is obligated to adm inister and enforce the Constitution of the United States and the will of Congress as expressed in the public laws, as well as the m ore “private” legal interests of the “client” agency. It is because of this diversity o f functions that situations may arise where the Attorney General is faced with conflicting demands, e .g ., where a “client” agency desires to circum ­ vent the law, or dissociate itself from legal o r policy judgments to which the Executive subscribes; where a “client” agency attempts to litigate against another agency or departm ent of the federal government; or where a “client” agency desires a legal result that will benefit the narrow area of law administered by the agency, w ithout regard to the broader interests o f the United States government as a w hole. In such cases, the Attorney G eneral’s obligation to represent and advocate the “client” agency’s position m ust yield to a higher obligation to take care that the laws be executed faithfully. In every case, the Attorney General must satisfy him self that this constitutional duty, delegated from the Executive, has not been com prom ised in any way, and that the legal positions advocated by him do not adversely affect the interests of the United States.

T heodore B. O lson

A ssistan t A ttorn ey G en eral Office c f L egal Counsel