Effectiveness of Attorney General Order After Resignation of Attorney General ( 1979 )

September 27, 1979
79-72 MEMORANDUM OPINION FOR THE
ASSISTANT ATTORNEY GENERAL CRIMINAL
DIVISION
Attorney General—Delegation of Authority—
18 U.S.C. § 2516This responds to your request for our opinion whether Attorney
General Order No. 799-78, signed by former Attorney General Bell on
August 15, 1978, and left intact by Attorney General Civiletti, continues in
force. The order specially designates—
the Assistant Attomey[s] General in charge o f the Criminal Divi­
sion * * * the Tax Division, and * * * the Office o f Legal
Counsel [severally] to exercise the power conferred by Section
2516 of Title 18, United States Code, to authorize applications to
a Federal judge o f com petent jurisdiction for orders authorizing
the interception o f wire or oral communications by [Federal in­
vestigative agencies] * * * .
For the reasons set forth below, it is our opinion that the order remains
valid despite the resignation o f Mr. Bell.
The relevant language appears at the beginning o f § 2516 as follows:
(1) The Attorney General, or any Assistant Attorney General
specially designated by the Attorney General, may au­
thorize an application to a Federal judge o f competent
jurisdiction * '* * .
This language cannot reasonably be construed to limit the life o f a
designation to the period o f incumbency o f the Attorney General who
made it. Moreover, the legislative history o f Pub. L. No. 90-351, Title III,
82 Stat. 197, 211, approved June 19, 1968, by which § 2516 was enacted,
reveals nothing to indicate that Congress considered this point. Thus,
§2516, standing alone, does not compel Attorney General Civiletti, who
is satisfied with the designations o f his predecessor in office, to issue an
order o f his own to preserve them. N or can such a requirement be found in
administrative custom or judicial precedent. To the contrary, both con­
firm that lawful delegations o f authority survive the particular officer
making the delegation.
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/
It is axiomatic that in the absence o f a limiting provision o f law or a lim­
iting provision within the delegation itself, a valid delegation o f authority or
o ther rule or regulation continues in force until revoked by someone with
authority to revoke it, and accordingly continues without regard to the
departures from office o f its originator and intervening successors.'
The reason for adherence to the principle was well stated in a case in­
volving this Departm ent and presenting essentially the same question you
have posed, United States v. Morton Salt Co. et al., 216 F. Supp. 250,
255-256 (D.C. Minn. 1962), a ff’d, 382 U.S. 44 (1965). There the Acting
Deputy Attorney General, who, on January 5, 1961, gave departm ental at­
torneys an authorization to appear before a grand jury, was replaced by an
incoming Deputy Attorney General on January 21, 1961. The authoriza­
tion o f January 5 was not filed with the grand jury until February 20,
1961. The defendants asserted that it was ineffective because the person
who issued it was no longer in office on February 20. The District Court
responded as follows:
This contention is clearly untenable in that it is the authority
from the duly designated official in the office o f the Attorney
General which the statute requires, and if that individual there­
after resigns, dies, or is otherwise separated from his office, the
authority to act under the authorization is not term inated. In
other words, when a designated official acts within the scope of
his authority, the authorization must continue until it is revoked
or is otherwise term inated. If this were not true, a change o f ad­
ministration or resignation from office by the official who acted
within his authority when the designation was made would create
a chaotic condition in the administration o f the affairs o f the
Departm ent o f Justice.
In re Weir, 520 F. (2d) 662 (C.A. 9th Cir. 1975), produced a similar pro­
nouncement concerning a grant o f immunity under 18 U .S.C . § 6003(a)
that a District C ourt had issued a grand ju iy witness on November 1, 1973,
after the A ttorney General had authorized it. Following the refusal o f the
witness to testify at proceedings ensuing from that event, he refused on
February 25, 1975, to testify before a new grand jury, contending that the
Government should have been required to show that the Departm ent of
Justice had again reviewed the m atter o f the immunity grant. The court
held that such action by the Departm ent, which was no longer headed by
the A ttorney General who had authorized the immunity grant, was not
necessary, stating, id., at p. 667:
The rules and orders o f an Attorney General continue to govern
the Departm ent o f Justice (notwithstanding the advent o f new
Attorneys General) until they are changed or altered. This is the
custom ary way in which administrative agencies operate.
'P erhaps the best evidence o f the acceptance o f this truism o f adm inistration is the absence
from the Federal Register o f the myriad o f agency orders and notices proclaiming the conti­
nuity o f procedures, delegations o f authority, etc., that would be occasioned by a contrary
rule.
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Finally, it is pertinent to mention that, while your question was not ex­
plicitly in issue in United States v. Nixon, 413 U.S. 683 (1974), the case in­
volving the validity o f the Watergate Special Prosecutor’s subpoena duces
tecum o f White House tapes and documents, the Court obliquely passed
on it. In the course o f discussing the provisions o f the charter given the
Special Prosecutor by Acting Attorney General Bork on November 2,
1973, 38 F.R. 30739, as amended on November 19, 1973, 38 F.R. 32805,
the Court said, “ So long as this regulation is extant it has the force of
law.” 418 U .S., at 695. Since the Special Prosecutor’s subpoena was
served on April 27, 1974, and Attorney General Saxbe, who took over
from the Acting Attorney General on January 4, 1974, did not reissue or
amend the charter, the quoted sentence evidences the C ourt’s understand­
ing that the change in office had no effect on its validity.
Administrative practice and judicial expressions are but a reflection of
common sense and compel our conclusion that former Attorney General
Bell’s Order No. 799-78 making designations under 18 U.S.C. § 2516 re­
mains in effect.
Jo hn M . H arm on
Assistant A ttorney General
Office o f Legal Counsel
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