Whether Agents of the Department of Justice Office of Inspector General are "Investigative or Law Enforcement Officers" Within the Meaning of 18 U.S.C. § 2510(7) ( 1990 )

Whether Agents of the Department of Justice Office of
Inspector General are “Investigative or Law Enforcement
Officers” Within the Meaning of 18 U.S.C. § 2510(7)
A g e n ts o f th e D e p a rtm e n t o f J u s tic e O ffic e o f In s p e c to r G e n e ra l a re “ in v e stig a tiv e o ff ic e rs ”
w ith in th e m e a n in g o f 18 U .S .C . § 2 5 1 0 (7 ) a n d as su ch m a y b e a u th o riz e d to a p p ly fo r a n d
c o n d u c t c o u rt-a u th o riz e d e le c tro n ic s u rv e illa n c e re g a rd in g m a tte rs w ith in th a t O ffic e 's in v e s ­
tig a tiv e ju risd ic tio n .
May 29, 1990
L e t t e r O p in io n f o r t h e A s s o c ia t e U n it e d S t a t e s A t t o r n e y
S o u t h e r n D is t r ic t o f N e w Y o r k
This responds to your request for our opinion as to whether agents of the
Department of Justice Inspector General (“DOJ/OIG”) can be considered
“ [i]nvestigative or law enforcement officer[s]” within the meaning of 18
U.S.C. § 2510(7).' We have concluded that the DOJ/OIG falls within that
statutory definition.
Your request arises from an application to the Criminal Division for court-
authorized electronic surveillance pursuant to title III of the Omnibus Crime
Control and Safe Streets Act (“OCCSSA”), Pub. L. No. 90-351, tit. Ill, §
802, 82 Stat. 197, 212 (1968) (codified at 18 U.S.C. §§ 2510-2520). During
the drafting of that application, you considered the question whether agents
o f the DOJ/OIG were authorized to act as “[investigative or law enforce­
ment officer[s]” who are permitted by OCCSSA to listen to intercepted
communications. Because the question is one of first impression and in­
volves the intersection of the OCCSSA and the Inspector General Act, the
Office of Enforcement Operations of the Criminal Division recommended
that you seek our advice.
Title III of OCCSSA was intended to “provide law enforcement officials
with some of the tools thought necessary to combat crime without unneces­
sarily infringing upon the right of individual privacy.”2 In general, the statute
prohibits surveillance of wire and oral communications without the consent
1See L etter fo r W illiam P. B arr, A ssistan t A ttorney G eneral, O ffice o f L egal C ounsel, from L ouis J.
F reeh , A ssociate U nited S tates A ttorney, S outhern D istrict o f N ew York (A pr. 23, 1990).
2Scott v. United States, 4 3 6 U .S. 128, 1 3 0 (1 9 7 8 ).
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o f at least one party to the communication, but creates certain specific ex­
ceptions for law enforcement purposes, subject to procedural and substantive
requirem ents.3 M ost relevantly, section 2516 provides for interception of
wire, oral, or electronic communications for law enforcement purposes pur­
suant to a court order based upon a showing and finding of probable cause.
U nder subsection 2516(1), the Attorney General and certain other officers
within the Department of Justice may authorize the making of an application
to a federal judge for an order “authorizing . . . the interception of wire or
oral communications by the Federal Bureau of Investigation, or a Federal
agency having responsibility for the investigation of the offense as to which
the application is made,” if the underlying offense falls within one of several
categories of federal crimes enumerated in section 2516. Under section
2518, each such application for a court order must be made in writing and
include such information as “the identity of the investigative or law enforce­
ment officer making the application.” If the application is approved, the
identified officer may listen to the intercepted communication. Id. § 2518(3)-(5).4
Subsection 2510(7), in turn, defines “[ijnvestigative or law enforcement
officer” to mean
any officer of the United States or of a State or political sub­
division thereof, w ho is em pow ered by law to conduct
investigations of or to make arrests for offenses enumerated in
this chapter, and any attorney authorized by law to prosecute
or participate in the prosecution of such offenses.
Because the definition is phrased throughout in the disjunctive — investi­
gative o r law enforcement officer, empowered to conduct investigations o r to
make arrests — it seems plain that Congress intended the term “investigative
officers” to be broad enough to include officials who participate in investiga­
tions but do not have arrest authority. Moreover, the only discussion in the
legislative history of the term “investigative officers” indicates that the term
encompasses all officers who carry out any law enforcement duties relating
to offenses enumerated in section 2516:
Paragraph (7) defines “investigative or law enforcement of­
ficer” to include any Federal, State, or local law enforcement
officer empowered to make investigations o f or to make ar­
5See S. R ep. N o . 1097, 9 0 th Cong., 2 d Sess. 27-28 (1968).
'M o re o v e r, in v e stig ativ e o r law en fo rcem en t o fficers, if a u th orized to intercept c om m unications, may
d is c lo se th e c o n te n ts o f the com m unications to o th e r in v estig ative o r law en fo rcem en t o ffice rs, m ay use
th o se c o n te n ts to th e e x te n t that such u se is ap p ro p riate to the p ro p e r perform ance o f th e ir official
d u tie s, m a y in su ita b le circum stances g iv e testim ony co n cern ing those contents, and m ay d isclo se and
u se in te rc e p te d co m m u n icatio n s re la tin g to offenses o th e r than those specified in the c o u rt o rd e r if the
fo rm e r are o b ta in e d in the course o f a co u rt-au th o rized in terception. Id. § 2 517( 1)-(3), (5). Further,
in v e stig a tiv e o r law en fo rcem en t o ffice rs specially d esig n ated by an ap p ro p riate p ro se cu to r m ay in te r­
c e p t w ire o r o ra l c o m m u n icatio n s on an em erg en cy b asis, subject to la te r ju d ic ia l review . Id. § 2518(7).
108
rests for any of the offenses enumerated in the proposed legis­
lation. It would include law enforcement personnel carrying
out law enforcement purposes.
S. Rep. No. 1097, 90th Cong., 2d Sess. 91 (1968) (emphasis added).
Moreover, case law also interprets the term “investigative officer[s]”
broadly to include all law enforcement officials involved in the investigation
of the enumerated offenses, even if they lack the authority to make arrests.5
Finally, this Office has previously opined that in light of the use of “the
broad term ‘investigatory’ [sic],” FBI support personnel qualify as “investi­
gative officers” within the meaning of section 2510(7).6
We believe DOJ/OIG agents qualify as “investigative officer[s]” under
section 2510(7) as construed above, because these agents may make investi­
gations of offenses enumerated in section 2516. Each Inspector General has
the duty and responsibility to “provide policy direction for and to conduct,
supervise, and coordinate audits and investigations” relating to the programs
and operations “of [the] establishment” in which he functions. 5 U.S.C.
app. 3, § 4(a)(1).7 An Inspector General must also “conduct, supervise, or
coordinate other activities carried out or financed by such establishment for
the purpose of . . . preventing and detecting fraud and abuse in, its programs
and operations.” Id. § 4(a)(3). Inspector Generals also have responsibility
“with respect to ( A ) . . . the prevention and detection of fraud and abuse in . . .
programs and operations administered or financed by such establishment, [and]
(B) the identification and prosecution o f participants in such fraud o r abuse.”
Id. § 4(a)(4) (emphasis added). These responsibilities require an Inspector
General to “report expeditiously to the Attorney General whenever the In­
spector General has reasonable grounds to believe there has been a violation
of Federal criminal law.” Id. § 4(d).8 Thus, the Inspector General Act en­
trusts the DOJ/OIG with investigative, auditing and other responsibilities
’ See U nited State v. Feekes , 879 F.2d 1562, 1565-66 (7th Cir. 1989) (prison in vestigator w ith in sectio n
2510(7)); In re Grand Jury Proceedings, 841 F.2d 1048, 1054 (1 1th Cir. 1988) (H ouse o f R ep rese n ta tiv es
C o m m ittee in im p each m en t proceeding against federal ju d g e is an “ in v estigative officer” w ith in sectio n
25 1 0 (7 )); United States v. Clark, 651 F. Supp. 76, 79 (M .D . Pa. 1986), a ff'd , 857 F.2d 1464 (3d C ir.
1988), cert, denied, 4 9 0 U .S. 1073 (1 989) (“W hile prison em p lo y ees m ay not be ‘the F B I o r o th e rs
norm ally reco g n ized as law enforcem ent o fficers,’ . . . [they] fall w ithin the category o f in v e stig ativ e
officers . . . ."); Crooker v. Department o f Justice, 497 F. Supp. 500, 503 (D . C onn. 1980) (p riso n
officials, ev en th o u g h lacking arrest authority fo r any o f the o ffen ses enum erated in sec tio n 2516(a),
w ere in vestig ato rs u n d e r section 2510(7)).
‘ M em oran d u m for W illiam H. W ebster, D irector, Federal B ureau o f Investigation, from T h eo d o re B.
O lson, A ssistan t A tto rn ey G eneral, O ffice o f L egal C ounsel, Re- Use o f FBI Support Personnel to
M onitor Title III Surveillance at 20 (O ct. 31, 1984).
’ A lth o u g h the In sp ecto r G eneral A ct originally did not provide fo r an In sp ecto r G eneral w ithin the
D e p artm e n t o f Ju stice, a 1988 am endm ent to the Inspector G eneral A ct c re ated the D O J/O IG . See P ub.
L. N o 100-504, 102 Stat. 2515, 2520-21 (1988).
8 T h e pro v isio n s re la tin g specifically to the D O J/O IG state that the Inspector G eneral “ sh all be u n d e r
the a u thority , d irection, and control o f the A ttorney G eneral w ith respect to a u dits or in v estig atio n s, o r
the issu a n c e o f su b p o en as, w hich require access o f sensitive in fo rm atio n " concerning sp ec ified areas o f
law en fo rcem en t. 5 U S C. app. 3, § 8 D (a )(l).
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relevant to the detection and prosecution of fraud and abuse within Justice
Departm ent programs or operations.9
In particular, we believe that the DOJ/OIG’s investigative jurisdiction car­
ries with it the power to investigate offenses enumerated in section 2516,
should the DOJ/OIG discover evidence that Justice Department personnel,
contractors or grantees are engaging in such offenses in connection with the
Department’s programs or operations. Among these offenses may be, for ex­
ample, bribery of public officials and witnesses (18 U.S.C. § 201), influencing
or injuring an officer, juror, o r witness (id. §§ 1503, 1512, 1513), obstruction of
criminal investigations (id. § 1510), wire fraud (id. § 1343), mail fraud (id. §
1341), and dealing in illegal drugs. See id. §§ 2516(l)(c), (e).
Accordingly, we conclude that DOJ/OIG agents (including special agents,
auditors and investigators) are investigative officers within the meaning of
18 U.S.C. § 2510(7), and as such may be authorized by the appropriate
officials within this Department to apply for and to conduct court-authorized
electronic surveillance with regard to matters within the DOJ/OIG’s investi­
gative jurisdiction.
JOHN O. McGINNIS
Deputy Assistant Attorney General
Office o f Legal Counsel
’ In d e e d , th is O ffice has stated that it h a d “no doubt th at the [L abor D epartm ent] In sp ecto r G e n eral has
c rim in a l in v e stig a tiv e a u th o rity . . . within the scope o f h is statutorily-granted in vestigative au th o rity .”
Inspector G eneral A uthority to Conduct Regulatory Investigations, 13 Op. O .L .C . 54, 58 n.7 (1989).