Department of Justice Representation in Federal CriminalProceedings

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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