Department of Justice Representation in Federal CriminalProceedings ( 1982 )


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  •     Department of Justice Representation in Federal Criminal
    Proceedings
    The Attorney G en eral’s statutory authority to provide legal representation to individual federal
    em ployees sued for acts occurring in the course of their official governm ent duties does not extend
    to representation in a federal crim inal proceeding, since in such a case the interests of the U nited
    States have been defined by the prosecuting authority to be adverse to those o f the defendant.
    February 11, 1982
    M EM ORANDUM OPINION FOR THE GENERAL COUNSEL,
    DEPARTMENT OF DEFENSE
    This responds to your request that the D epartment of Justice amend its
    regulations regarding representation of federal employees who are defendants in
    federal criminal proceedings. Current regulations prohibit representation of
    federal employees by D epartment of Justice attorneys whenever “ [t]he represen­
    tation requested is in connection with a federal criminal proceeding in which the
    employee is a defendant.” See 28 C.F.R. § 50.15(b)(1) (1981).
    Your concern over the existing policy apparently arises from a set of events
    involving a Navy lieutenant who was charged with violation of the Migratory
    Bird Conservation Act, 16 U .S .C . § 715 et seq. (1976 & Supp. IV 1980) a
    federal m isdem eanor offense. The lieutenant, who was not afforded Departm ent
    of Justice representation, defended himself and was acquitted. You have sug­
    gested that application of the regulation prohibiting representation in a federal
    criminal proceeding is inappropriate when a “ low-level, statutory, strict-liability
    misdem eanor,” such as a violation of the M igratory Bird Conservation Act, is at
    issue. You suggest that such a case is really more like a civil case, for which the
    Department of Justice routinely defends naval personnel, and that denial of
    representation “ am ounts to a prejudgment against the accused officer,” in light of
    the potential legal fees. Thus, you recommend that the Department of Justice
    amend its regulations to permit representation in a criminal proceeding when the
    Department of Justice and the employing agency concur that the individual was
    acting legitimately within the scope of his or her official capacity.
    The authority to represent federal employees in civil cases derives from the
    Attorney G eneral’s power to conduct litigation in which the United States “ is
    interested.” See 28 U .S .C . §§ 509, 516-17 (1976 & Supp. IV 1980). Generally,
    the United States is considered to have two basic “ interests” in defending
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    em ployees w ho are sued in their individual capacities— or who are subject to
    state prosecution— for acts occurring in the course of their official government
    duties: (1) establishing the lawfulness of authorized conduct on its behalf is
    im portant to the government, and (2) extending legal assistance to employees
    tends to prevent their being deterred from vigorous performance of their tasks by
    the threat of litigation and the burden of defending suits. Thus, the interests of the
    U nited States are deem ed to be served best by extending legal assistance to its
    em ployees when an outside party challenges conduct occurring in the course of
    governm ent service.
    In the case o f a federal criminal prosecution, however, the interests of the
    U nited States have been defined by the prosecuting authority to be adverse to
    those o f the defendant. Therefore, the Attorney G eneral’s authority to conduct
    litigation on behalf of the United States does not extend to representation of an
    em ployee being prosecuted by the United States. First, the United States can no
    longer be considered to have an interest in establishing the lawfulness of the
    em ployee’s conduct, which it seeks to prove unlawful. Second, the federal
    governm ent does not have an interest in relieving its employees of the threat of
    federal prosecution, as it does in relieving them of the threat and burdens of
    outside litigation. To the contrary, the governmental interest is in securing
    com pliance w ith its own laws. Even in a civil suit, the interests of the United
    States will not justify representation of an employee if the employee is suing or
    being sued by the United States. See 28 C.F.R. § 5 0 .15(b)(4) (1981). Thus, even
    if a violation o f the Migratory B ird Conservation Act were treated as a “ civil”
    offense for purposes o f representation, as you suggest, Department of Justice
    attorneys could not represent the federal employee. In sum, representation of
    federal em ployees is undertaken not to protect the personal interests of the
    em ployees, but to protect the interests of the United States. Therefore, when the
    interests of the U nited States have been determ ined to be adverse to the interests
    o f one o f its em ployees, the Attorney G eneral’s authority to represent the United
    States cannot extend to representation of that employee.
    You have suggested that (1) crim inal charges not be brought against a govern­
    m ent official for conduct taken in his or her official capacity without first
    determ ining the employing agency’s position, and (2) if the agency and the
    D epartm ent of Justice agree that the employee was acting legitimately within the
    scope o f his o r her official authority, that the Department of Justice represent
    the em ployee in a subsequent criminal proceeding. Essentially, this would
    provide for the sam e procedure now mandated when determining whether or not
    to authorize representation in civil litigation. For the reasons explained above,
    however, the Justice Department could not in any event agree to represent an
    em ployee subject to federal prosecution. T hus, the consultation suggested could
    not achieve the result you seek. Furtherm ore, we believe that it would be
    inappropriate to require formal consultation with a federal em ployee’s agency
    before bringing crim inal charges. Such a rule would give federal employees a
    favored status over other subjects of criminal investigations.
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    We do not mean to suggest, however, that investigators do not seek to obtain
    information from the em ployee’s agency. To the contrary, a federal criminal
    investigation of events occurring in the course of official duties normally would
    entail considerable contact between the Justice Department and the involved
    federal agency. If, for some reason, the Justice Department investigators fail to
    obtain all the relevant information from the employing agency, that agency of
    course may come forward with the information that it believes is relevant. The
    ultimate decision to prosecute, however, must remain with the Justice D epart­
    ment. Once that decision is made, Justice Department representation of the
    employee-defendant becomes inappropriate. This represents not merely a policy
    decision, but a statutory construction of the representation authority vested in the
    Attorney General, and we therefore do not believe that the regulations can be
    amended as you suggest.
    I am sympathetic to the arguments that you have made, particularly in light of
    the specific incident recited in your letter. Of course, it would be inappropriate for
    me to express any judgm ent concerning the handling of that case, or the decision
    to prosecute under the facts there present. However, I do think that the best
    resolution to the point that you make would result if the “ surrounding circum ­
    stances [are] carefully evaluated in each case” at the stage where the decision to
    prosecute is made. I recognize that no system or policy position is foolproof, but
    in light of the im portant concerns underlying the existing policy, I am not inclined
    to recommend a change in basic policy simply because anomalies may occasion­
    ally occur. Rather, I would hope that the exercise of proper good judgm ent and
    prosecutorial discretion would take care of the isolated situation in which the
    established policies would otherwise appear to work an injustice.
    T   heodore   B. O   lson
    Assistant Attorney General
    Office c f Legal Counsel
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Document Info

Filed Date: 2/11/1982

Precedential Status: Precedential

Modified Date: 1/29/2017