(Slip Opinion)
Retaining Private Counsel to Represent the
DHS Secretary in Impeachment Processes
The Department of Homeland Security may retain private counsel to assist the Depart-
ment in representing itself and the Secretary in impeachment proceedings aimed at
decisions or actions within the scope of the Secretary’s official duties and unaccompa-
nied by any allegations of personal misconduct.
January 4, 2023
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF HOMELAND SECURITY
You have asked whether the Department of Homeland Security
(“DHS”) may contract with and pay for private counsel to assist DHS in
“[r]epresenting the Department’s interests and advising Department
officials” in impeachment proceedings. Memorandum for Neil Kinkopf,
Senior Counselor, Office of Legal Counsel, from Neal Swartz, Associate
General Counsel for General Law, DHS, Re: Retaining Private Counsel
for a Federal Official Subject to Impeachment Processes at 1 (Oct. 27,
2022) (“DHS Memo”). You have asked this question at a time when there
is no impeachment inquiry pending in the House, so there is no concrete
situation to focus our analysis. This is significant because a complete
analysis would depend on the facts and circumstances of an actual pro-
ceeding.
We are aware, however, of House Resolution 582, introduced in the
117th Congress on August 10, 2021, entitled, “Impeaching Alejandro
Nicholas Mayorkas, Secretary of Homeland Security, for high crimes and
misdemeanors.” House Resolution 582 contains two articles of impeach-
ment, each including a number of specific charges. Article I alleges that
the Secretary failed to maintain border security, while Article II alleges
that the Secretary placed departmental personnel and American citizens at
risk of COVID-19 by failing to prevent potentially contagious noncitizens
from entering the country. The Resolution is critical of policy decisions
made by the Secretary and accuses him of neglecting his constitutional
and statutory duties. Our understanding is that all of the Secretary’s
decisions described in the two articles were made within the scope of his
office and implemented administration policy. Critically, there are no
allegations of personal misconduct, such as treason or bribery. If the
1
47 Op. O.L.C. __ (Jan. 4, 2023)
House initiates an impeachment inquiry against Secretary Mayorkas in the
118th Congress, we assume that House Resolution 582 would be a rea-
sonable approximation of its contents. To the extent necessary, this re-
sponse to your question proceeds on that assumption, and our advice is
limited to the circumstances presented by an impeachment inquiry that
lacks any allegations of personal misconduct.
You have further informed us that in your judgment, DHS lacks the ca-
pacity to represent itself and the Secretary in impeachment proceedings
and that DHS has the statutory authority and the appropriations necessary
to retain private counsel. Under these circumstances, we conclude that
DHS may contract with and pay for private counsel to assist DHS in
representing itself and the Secretary in such proceedings.
I.
An agency has the authority to retain and pay for private counsel for
representation in impeachment proceedings when three conditions are
met. See Authority of the Department of Health and Human Services to
Pay for Private Counsel to Represent an Employee Before Congressional
Committees, 41 Op. O.L.C. __, at *1, *5 (2017) (“Authority of HHS to
Pay for Private Counsel”); see also Memorandum for the Deputy Attor-
ney General from Theodore B. Olson, Assistant Attorney General, Office
of Legal Counsel, Re: Reimbursement of Anne M. Burford for Private
Counsel Fees at 2 (May 3, 1983) (“Burford I”) (“[W]e are aware of no
legal restrictions that would completely preclude the retention of a private
law firm by an agency to represent the agency, its employees, or its for-
mer employees in connection with a Congressional inquiry into the con-
duct and administration of the agency.”). “First, representation of the
agency by agency counsel . . . must be inappropriate or impermissible.
Second, representation by private counsel must be in the government’s
interest, and the government may not pay fees incurred in representing the
purely personal interests of the employee. Third, the agency must have the
organic statutory authority and an available appropriation to retain and
pay for private counsel.” Authority of HHS to Pay for Private Counsel
at *5.
Although we formulated this test in the context of individual-capacity
representation of a federal employee whose testimony was subpoenaed in
an oversight investigation, id. at *1, the same test applies generally to an
2
Retaining Private Counsel in Impeachment Processes
agency’s retention of private counsel for official-capacity representation
in an impeachment proceeding. We derived the three conditions from the
“‘basic rule’” that “‘a general appropriation may be used to pay any
expense that is necessary or incident to the achievement of the underlying
objectives for which the appropriation was made.’” Id. at *5 (quoting
Indemnification of Department of Justice Employees, 10 Op. O.L.C. 6, 8
(1986)). An agency has considerable discretion to determine whether
expenditures further the agency’s authorized purposes. Id. at *6. “‘If the
agency believes that the expenditure bears a logical relationship to the
objectives of the general appropriation, and will make a direct contribu-
tion to the agency’s mission, the appropriation may be used.’” Id. (quot-
ing Indemnification of Department of Justice Employees, 10 Op. O.L.C.
at 8). “In the context of retention of private counsel, this Office has con-
cluded that the ‘logical relationship’ standard may be met when the repre-
sentation is in the government’s interest, the employee is being questioned
about conduct performed within the scope of her employment, and agency
counsel is not available.” Id. at *7. These fundamental principles of
appropriations law apply equally to an agency’s expenditure of appropri-
ated funds to retain private counsel for official-capacity representation in
an impeachment proceeding. 1
1 We agree with DHS that there is no obstacle presented here by 5 U.S.C. § 3106,
which prohibits agencies from hiring attorneys for the conduct of litigation and requires
agencies to refer such matters to the Department of Justice. We have previously conclud-
ed that “litigation” in section 3106 refers only to judicial proceedings and does not
include administrative adjudications. Memorandum for Stuart M. Gerson, Assistant
Attorney General, Civil Division, from David G. Leitch, Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Engagement of Private Counsel to Represent
Employees in Connection with Investigations by the Office of Special Counsel and
Proceedings Before the Merit Systems Protection Board at 3–8 (Sept. 18, 1992). Applying
the same reasoning, we have concluded that congressional oversight proceedings are not
litigation: “[t]he exclusive authority and prerogatives of the Attorney General over
matters in litigation are not generally read to extend to non-litigation matters such as
congressional inquiries.” Burford I at 1 n.1; see also Authority of HHS to Pay for Private
Counsel at *3 & n.3. Notwithstanding the fact that the Constitution borrows terms of a
judicial nature to describe impeachment proceedings, see, e.g., In re Comm. on the
Judiciary, U.S. House of Representatives, 951 F.3d 589, 596 (D.C. Cir. 2020), vacated
and remanded sub nom. Dep’t of Just. v. House Comm. on the Judiciary, 142 S. Ct. 46
(2021), we conclude that the term “litigation” in section 3106 is best read not to include
impeachment proceedings. We do not believe that Congress intended to assign the
Department of Justice with exclusive representational authority in impeachment proceed-
3
47 Op. O.L.C. __ (Jan. 4, 2023)
We understand that at this point, DHS has contemplated the potential
scope of work for private counsel only in general terms. DHS has in-
formed us that the role of private counsel “may involve”: advocacy to
persuade House members not to support instituting impeachment proceed-
ings; representing DHS’s interests and advising DHS officials on congres-
sional processes related to an impeachment inquiry, including responding
to subpoenas for DHS documents, information, and the testimony of DHS
officials; representing individual DHS officials if they testify and DHS
attorneys are not permitted to participate; and representation of DHS and
the Secretary should there be a Senate impeachment trial. DHS Memo
at 1. We proceed to apply the three-part test to these arrangements as
generally described to us, in the context of an impeachment proceeding
that lacks allegations of personal misconduct, like House Resolution 582.
A.
The first of the three conditions is whether representation by agency
counsel would be inappropriate or impermissible. In the matters in which
we have previously found authorization for funding of private counsel,
agency counsel was unavailable because of a congressional rule prohibit-
ing the presence of agency counsel or because a congressional committee
demanded that agency counsel not attend. Authority of HHS to Pay for
Private Counsel at *2; Reimbursing Justice Department Employees for
Fees Incurred in Using Private Counsel Representation at Congressional
Depositions, 14 Op. O.L.C. 132, 133 (1990); Representation of White
House Employees, 4B Op. O.L.C. 748, 750 (1980).
We have not previously considered what other circumstances may justi-
fy payment for private counsel on the basis that representation by agency
counsel is inappropriate, impermissible, or otherwise unavailable. In
requesting our advice, you have suggested that DHS counsel would not be
available because “DHS does not have sufficient expertise in impeach-
ings given the political nature of the impeachment process, which takes place in a politi-
cal forum with a political remedy. Moreover, the Department has not provided formal
representation in any of the five impeachment trials of Executive Branch officers. The
foregoing analysis does not foreclose formal or informal participation by Department
attorneys in impeachment proceedings. For example, consultation with the Office of
Legal Counsel may be appropriate or necessary. Department attorneys also may be
available as an alternative or supplement to agency counsel or retained private counsel.
4
Retaining Private Counsel in Impeachment Processes
ment matters in-house.” DHS Memo at 1. In a subsequent oral conversa-
tion, you further explained to us that DHS also lacks the necessary staff
resources. We offer no view on the sufficiency of available DHS legal
resources, but we agree that these reasons, where they are present, would
justify hiring outside counsel. See Burford I at 1–2 (“Agencies most often
provide . . . this representation through their own general counsels, but, on
occasion, they do exercise their contracting authority to retain private
counsel to assist them in providing legal services that are beyond the
expertise or resources of agency counsel.”). The core of the inquiry is the
logical relationship between the expenditure and achievement of the
agency’s objectives. Where an agency lacks in-house capacity, there is a
close nexus between the expenditure to retain outside counsel and
achievement of the agency’s objectives. We encourage DHS nonetheless
to consider the extent to which DHS’s experience with congressional
relations may carry over to the impeachment context. The scope of repre-
sentation of the private firm should be commensurate with the rationale
justifying the representation. DHS has experience managing DHS docu-
ments and evaluating government privileges in the oversight context, and
it may therefore be appropriate for DHS counsel to also handle such
matters, in whole or in part, in the impeachment context. Similarly, DHS
should consider whether its experience with interviews, depositions, and
hearings in the oversight context may make it appropriate for DHS coun-
sel to handle such matters, in whole or in part, in the impeachment con-
text.
B.
The second of the three conditions is that private counsel representation
meets the agency’s interests. We have previously explained that this
condition is based on the principle that “general appropriations are availa-
ble to pay for private counsel only when doing so is necessary to the
furtherance of government interests; they are not available to pay for
representation of purely private interests.” Authority of HHS to Pay for
Private Counsel at *9.
An impeachment proceeding implicates the personal interests of the
impeachment subject, much more so than the extent to which a congres-
sional oversight proceeding implicates the personal interests of a federal
official. An impeachment inquiry is by definition aimed at determining
5
47 Op. O.L.C. __ (Jan. 4, 2023)
whether a specific officer should be accused of “Treason, Bribery or other
high Crimes and Misdemeanors”—and if so, should be tried by the Sen-
ate. U.S. Const. art. 2, § 4. Conviction by the Senate would remove the
officer and carries the additional possible penalty of “disqualification to
hold and enjoy any Office of honor, Trust or Profit under the United
States.” Id. art. 1, § 3. The impeachment subject’s interest in avoiding
these personal consequences is weightier than, and are in addition to, the
personal interests that are implicated in other types of congressional
proceedings, such as “being treated fairly, having a full and fair oppor-
tunity to respond, and avoiding being made an unfair target of congres-
sional criticism.” Reimbursing Justice Department Employees, 14 Op.
O.L.C. at 137.
At the same time, the presence of personal interests “does not automat-
ically preempt a legitimate governmental interest”; “the two may exist
side-by-side.” Government Accountability Office, Principles of Federal
Appropriations Law 3-116 (4th ed. 2017) (“Federal Appropriations
Law”); see also Authority of HHS to Pay for Private Counsel at *9–10;
Representation of White House Employees, 4B Op. O.L.C. at 753. In
impeachment proceedings that challenge the lawfulness of official ac-
tions, such as House Resolution 582, both the official and the government
have a significant interest in defending the lawfulness of those actions; to
that extent, the two sets of interests are highly congruent.
There are various important government equities that come into play
whenever official government conduct comes under question. We have
not previously analyzed those government interests in the impeachment
context, but we have done so in analogous contexts. One such context is
congressional oversight. Authority of HHS to Pay for Private Counsel at *3;
see also Representation of White House Employees, 4B Op. O.L.C. at 754.
Another involves the testimony of former government officials under
subpoena in federal criminal proceedings. Memorandum for Dick Thorn-
burgh, Attorney General, and Stuart E. Schiffer, Acting Assistant Attor-
ney General, Civil Division, from William P. Barr, Assistant Attorney
General, Office of Legal Counsel, Re: Reimbursement of Attorney Fees
for Private Counsel Representing Former Government Officials in Feder-
al Criminal Proceedings at 1 (Oct. 18, 1989) (“Reimbursement for Private
Counsel”). In each of those contexts, we have identified significant gov-
ernment interests that may justify government representation of executive
officials. We have also noted that “[a]bsent compelling facts to the contra-
6
Retaining Private Counsel in Impeachment Processes
ry, it is normally presumed to be in the interest of the United States to
provide representation for employees sued (or subpoenaed) for acts per-
formed within the scope of their employment.” Burford I at 4 n.4; see also
Authority of HHS to Pay for Private Counsel at *13.
The government has a significant interest in defending the lawfulness
of official policies and procedures. Representation of White House Em-
ployees, 4B Op. O.L.C. at 753; Department of Justice Authority to Repre-
sent the Secretary of Housing and Urban Development in Certain Poten-
tial Suits, 31 Op. O.L.C. 212, 215 (2007) (“DOJ Authority to Represent
HUD”); Department of Justice Representation in Federal Criminal Pro-
ceedings, 6 Op. O.L.C. 153, 153–54 (1982). To the extent that impeach-
ment is understood as one of the key checks and balances between the
branches of government, the Executive Branch has a significant interest in
defending the legality of its policies in this interbranch process.
The government also has an interest in relieving employees from any
burdens that arise from their good faith performance of official duties. See
Authority of HHS to Pay for Private Counsel at *13; see also id. at *14
(explaining government interest in providing representation to employees
who are “‘caught in a power struggle between Congress and the executive
branch’” for “‘simply, and properly, doing their jobs’” (quoting Reim-
bursement for Private Counsel at 18)). Failing to provide representation
could have a chilling effect on federal employees in carrying out their
official duties. As the Attorney General explained long ago: “No man of
common prudence would enter the public service if he knew that the
performance of his duty would render him liable to be plagued to death
with lawsuits, which he must carry on at his own expense.” 9 Op. Att’y
Gen. 51, 52 (1857); see also 9 Op. Att’y Gen. 146, 148 (1858) (“When
a[n] . . . executive officer is sued for an act done in the lawful discharge
of his duty, the government which employed him is bound, in conscience
and honor, to stand between him and the consequences.”).
We have also suggested that the “interest in the development of judicial
precedent involving litigation against federal employees” may be a signif-
icant government interest, “even where, in the particular case, the gov-
ernment lacks an interest in vindicating the employee’s conduct or avoid-
ing deterrence of similar conduct.” Reimbursement for Private Counsel
at 10 n.12; see also DOJ Authority to Represent HUD, 31 Op. O.L.C. at 215
n.2. Although an impeachment inquiry does not directly involve litigation,
7
47 Op. O.L.C. __ (Jan. 4, 2023)
the historical practices of Congress and the Executive Branch can be
influential on future decisions of either branch. The Executive Branch has
an important interest in how those practices develop. Significant inter-
branch dynamics come into play whenever Congress attempts to use
impeachment as a device to remove executive officials, since impeach-
ment is a key mechanism in the constitutional separation of powers. Cf. In
re Lindsey, 158 F.3d 1263, 1282 n.16 (D.C. Cir. 1998). Moreover, given
the rarity of impeachment, especially of Executive Branch officials,
precedent is underdeveloped in this area. Shaping the development of
precedent on the numerous impeachment-related legal issues that could
arise may be an important interest.
Finally, significant Executive Branch confidentiality and other institu-
tional interests may arise when Congress seeks documents and infor-
mation from an agency during an impeachment proceeding. Representa-
tion of White House Employees, 4B Op. O.L.C. at 753; Reimbursement for
Private Counsel at 18; Attempted Exclusion of Agency Counsel from
Congressional Depositions of Agency Employees, 43 Op. O.L.C. __, at *2,
*8–11 (2019); see also Exclusion of Agency Counsel from Congressional
Depositions in the Impeachment Context, 43 Op. O.L.C. __, at *3 (2019)
(recognizing that executive privilege is available in impeachment pro-
ceedings). Where an impeachment inquiry is based on official conduct,
Congress will inevitably seek documents and information that implicate
those confidentiality and institutional interests. Additionally, there is a
government interest in the correct and clear presentation of information.
Representation of White House Employees, 4B Op. O.L.C. at 753; Attempted
Exclusion of Agency Counsel from Congressional Depositions of Agency
Employees at *2; Memorandum for J. Paul McGrath, Assistant Attorney
General, Civil Division, from Theodore B. Olson, Assistant Attorney
General, Office of Legal Counsel, Re: Reimbursing Norman Edward
Perkins for Attorney’s Fees at 4 (Mar. 15, 1982).
There may, however, be limits to DHS’s and the Executive Branch’s
interests. First, in a situation where the conduct at issue in the impeach-
ment proceedings is outside the scope of the office, the agency’s interests
would not necessarily be served by defending the impeachment proceed-
ings. See Burford I at 4 n.4. Although the agency may still have an inter-
est in such proceedings—for instance, an interest in having the official
nonetheless continue in office or an interest in the way that the law of
8
Retaining Private Counsel in Impeachment Processes
impeachment is developed—the existence of such an interest must be
determined on a case-by-case basis.
There may also be circumstances in which these governmental interests
diverge from the impeachment subject’s interests. Although the govern-
ment generally has an interest in defending official conduct against an
outside challenge, that interest does not necessarily hold where the federal
government brings a criminal prosecution of the same conduct. At that
point, the “interests of the United States have been defined by the prose-
cuting authority to be adverse to those of the defendant.” Department of
Justice Representation in Federal Criminal Proceedings, 6 Op. O.L.C.
at 154. The same may be true where the official, based on the same con-
duct underlying the impeachment proceedings, has potential civil liability
to the government or is the subject of adverse action by the federal agen-
cy. Authority of HHS to Pay for Private Counsel at *16; In re Securities
and Exchange Commission—Reimbursement of Legal Expenses Incident
to Internal Investigation, 58 Comp. Gen. 613, 618 (1979).
In the circumstances as described to us and set forth in this opinion, we
conclude that the significant personal interests at stake generally do not
preclude the presence of legitimate government interests that can justify
paying for representation of the Secretary. Where impeachment is aimed
at the Secretary’s official policy decisions and there are no allegations of
personal misconduct, the Secretary’s personal interest in defending the
lawfulness of his actions will overlap with the government’s interests. In
these circumstances, we have not identified any personal interests that are
inconsistent with the government’s interests. Thus, the Secretary will not
in such situations be said to have any “purely personal” interests that
might preclude payment for his representation. Authority of HHS to Pay
for Private Counsel at *16. This determination, however, should be con-
sidered in the context of any specific proposed representation and revisit-
ed on an ongoing basis as the facts continue to become available.
Your inquiry also indicates that “the contracted firm may need to repre-
sent individual DHS officials if they are required to provide testimony and
the Congressional Committee does not allow DHS attorneys to participate
in the oversight process.” DHS Memo at 1. Under those circumstances,
the contracted firm would not be participating as counsel for the agency;
the representation would establish an attorney-client relationship between
the employee and the contracted firm, whereas the official-capacity repre-
9
47 Op. O.L.C. __ (Jan. 4, 2023)
sentation of DHS and the Secretary in the impeachment inquiry would
establish an attorney-client relationship between the contracted firm and
DHS. Authority of HHS to Pay for Private Counsel at *4–5 & n.5. An
agency’s authority to pay for private counsel for individual employees
must meet certain conditions. See generally id. A fact-specific determina-
tion would be required to assess whether it is in the government’s inter-
ests to pay for private counsel, as well as whether it would be appropriate
or permissible for the same contracted firm to represent the agency and an
individual employee in her individual capacity. As long as the interests of
the individual and the agency remain aligned, such that there would not be
any conflict of interest, “nothing about the attorney-client relationship
between the private counsel and the employee prevents private counsel
from working with agency counsel to understand the agency’s positions”
about the inquiry and the confidentiality interests of the agency. Id.
at *15. In those circumstances, payment for representation of private
counsel for such individuals might reasonably be assessed to further the
government’s interests, so that it would be appropriate for DHS to pay for
the representation of individuals. Again, though, this determination must
be made on the facts of any specific proposed representation as they arise.
C.
The third and final condition is that the agency has statutory authority
to retain private counsel and an available appropriation with which to pay.
This condition, as above, must be considered separately for each agency
in the factual context of each situation. As potential sources of authority
and appropriations, DHS has identified 5 U.S.C. § 3109, 6 U.S.C. § 392,
and section 505 of the DHS Appropriations Act, 2004, Pub. L. No. 108-90,
117 Stat. 1137, 1153 (Oct. 1, 2003). 2
Under 5 U.S.C. § 3109(b), agencies “may procure by contract the tem-
porary . . . or intermittent services of experts or consultants or an organi-
zation thereof” if that procurement is “authorized by an appropriation or
other statute.” Section 3109 does not itself provide the substantive author-
ity to obtain expert or consultant services. Authority of HHS to Pay for
Private Counsel at *17. That is because section 3109 requires additional
2 We have not attempted to identify other sources of statutory authority or appropria-
tions that may be available to DHS.
10
Retaining Private Counsel in Impeachment Processes
authorization “by an appropriation or other statute.” See Federal Appro-
priations Law at 3-28 (4th ed. 2017).
DHS finds that additional authorization in 6 U.S.C. § 392(1). Section
392(1) provides that the Secretary of DHS “may procure the temporary or
intermittent services of experts or consultants (or organizations thereof) in
accordance with section 3109 of title 5.” DHS has also informed us that it
has available appropriations under section 505 of the DHS Appropriations
Act, 2004, which provides that “[i]n fiscal year 2004 and thereafter,
unless otherwise provided, funds may be used for . . . services authorized
by section 3109 of title 5, United States Code.” Pub. L. No. 108-90, 117
Stat. at 1153.
We agree that these provisions grant DHS the necessary statutory au-
thority and appropriations. We previously found the necessary authority
for the Department of Health and Human Services to retain and pay for
private counsel in an appropriations provision that cited 5 U.S.C. § 3109
and a general appropriation for salaries and expenditures. Authority of
HHS to Pay for Private Counsel at *18–19. The cited DHS provisions
similarly satisfy the requirements.
DHS’s authority under those provisions, however, is subject to the limi-
tations associated with 5 U.S.C. § 3109. First, Office of Personnel Man-
agement regulations implementing the provision, see 5 U.S.C. § 3109(d),
provide that section 3109 authority may be used “only where agency
employees are not able to perform the function for which the expert is
retained.” Authority of HHS to Pay for Private Counsel at *17 n.14 (citing
5 C.F.R. § 304.103(b)(3)–(5)); see also Use of White House Funds for
Payment of Consultants to Assist Presidential Nominee to Regulatory
Agency at Confirmation Hearing, 2 Op. O.L.C. 376, 377 (1977) (“Section
3109 would thus appear to encompass the employment of outside counsel
to assist the nominee if, in your judgment, this would provide expert or
professional services not available within the White House Office.”);
Employment of Temporary or Intermittent Attorneys and Investigators,
3 Op. O.L.C. 78, 78 (1979) (“[I]n our view, this appropriation may not be
used to hire employees to perform the same functions as are performed by
regular employees in your Office.”). 3
3 This limitation overlaps with the first condition in the test that our Office has de-
scribed to determine whether the government may fund private counsel representation:
11
47 Op. O.L.C. __ (Jan. 4, 2023)
The second potential limitation depends on the scope of the contract.
Section 3109 has been understood to authorize contracting for either
“personal” or “nonpersonal” services. 1 Federal Appropriations Law at
5-25 to 5-26 (3d ed. 2004) (citing Method of Procurement Concerning the
Propriety of Paying Al Fleming, B-174226 (Comp. Gen. Mar. 13, 1972));
see also Jeffrey Lovitky, The Problems of Government Contracting for
Consulting Services, 14 Pub. Cont. L.J. 332, 334 (1984); Comptroller
Gen. Warren to the Comm’r, United States Section, Int’l Boundary &
Water Comm’n, U.S. & Mexico, 27 Comp. Gen. 695, 695 (1948) (discuss-
ing section 15 of the Administrative Expense Statute of August 2, 1946,
the predecessor to 5 U.S.C. § 3109). A personal services contract “is
characterized by the employer-employee relationship it creates between
the Government and the contractor’s personnel.” 4 48 C.F.R. § 37.104(a).
In contrast, a nonpersonal services contract is akin to an independent
contractor relationship. See id. § 37.101. 5
that representation by agency counsel would be inappropriate, impermissible, or otherwise
unavailable. See supra Part I.A.
4 The Federal Acquisition Regulation, 48 C.F.R. § 37.104(d), identifies factors to as-
sess whether a service contract is personal or nonpersonal:
(1) Performance on site.
(2) Principal tools and equipment furnished by the Government.
(3) Services are applied directly to the integral effort of agencies or an or-
ganizational subpart in furtherance of assigned function or mission.
(4) Comparable services, meeting comparable needs, are performed in the
same or similar agencies using civil service personnel.
(5) The need for the type of service provided can reasonably be expected to
last beyond 1 year.
(6) The inherent nature of the service, or the manner in which it is provid-
ed, reasonably requires directly or indirectly, Government direction or
supervision of contractor employees in order to-
(i) Adequately protect the Government’s interest;
(ii) Retain control of the function involved; or
(iii) Retain full personal responsibility for the function supported in a
duly authorized Federal officer or employee.
5 Although section 3109 has been understood to authorize nonpersonal services con-
tracts with independent contractors, it is possible that an agency could enter such a contract
without a specific statutory grant of contracting authority. See 48 C.F.R. § 37.102(d)
(“Non-personal service contracts are proper under general contracting authority.”).
12
Retaining Private Counsel in Impeachment Processes
The difference between a personal and nonpersonal service contract is
significant because the Comptroller General has consistently determined
that for personal services contracts—but not for nonpersonal contracts—
section 3109(b) limits the contract rate to the daily equivalent of the
highest GS scale. 6 The Honorable Jack Brooks, B-210518 (Comp. Gen.
Jan. 8, 1984); U.S. Advisory Comm’n on Pub. Dipl., 61 Comp. Gen. 69,
77 (1981); In re Charles R. Hobbs Corporation at 2–3, B-191865 (Comp.
Gen. Nov. 13, 1978); Comptroller Gen. Warren to the Adm’r, War Assets
Admin., 26 Comp. Gen. 188, 189 (1946). The point of this distinction is to
ensure that this authority is not used to evade the highly reticulated
scheme governing and limiting the pay of federal employees. Without this
distinction, section 3109 could be used to pay individuals who function as
federal employees a salary in excess of the approved federal scale.
Whether DHS’s hiring of private counsel would be a personal or non-
personal service contract would depend on the scope and terms of the
contract. We agree with DHS that, on the one hand, contracting a law firm
to provide an independent second legal opinion for advisory purposes
would be a nonpersonal service. DHS Memo at 5; U.S. Advisory Comm’n
on Pub. Dipl., 61 Comp. Gen. at 74. On the other hand, certain factors
identified by the Federal Acquisition Regulation might point the other
way when contracting private counsel to provide direct representation
under close supervision. See supra note 4. We believe that private counsel
might take significant responsibility in impeachment defense and still be
considered an independent contractor. In In re Legal Services of a Retired
Annuitant, the Comptroller General considered a proposed contract with a
retired government attorney to continue an investigation and administra-
tive proceedings that he started prior to retirement. 53 Comp. Gen. 702,
703–04 (1974). The tasks under contract included assisting the managing
counsel in the actual conduct of cross-examination at an administrative
6 The decisions of the Comptroller General are not binding on the Executive Branch
because the Comptroller General is an agent of Congress. See Comptroller General’s
Authority to Relieve Disbursing and Certifying Officials from Liability, 15 Op. O.L.C. 80,
82–83 (1991); Bowsher v. Synar, 478 U.S. 714, 727–32 (1986). We do, however, consider
Comptroller General opinions to be “useful sources on appropriations matters.” Authority
of the Environmental Protection Agency to Hold Employees Liable for Negligent Loss,
Damage, or Destruction of Government Personal Property, 32 Op. O.L.C. 79, 85 n.5
(2008).
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47 Op. O.L.C. __ (Jan. 4, 2023)
proceeding, preparing recommendations as to the exhibits to be offered,
and preparing proposed rebuttal testimony. Id. at 704. The Comptroller
General concluded that “an attorney having such experience. . . who
already has closely participated throughout the entire course of the inves-
tigation, would be capable of performing all tasks and services specified
in the contract without the close and continuous supervision or direction
that would tend to nullify his independence as a contractor.” Id. at 707.
Extending that logic, the contract might be structured in a way that private
impeachment counsel receives significant direction from DHS but not in
such a close and continuous way that it would create an employer-
employee relationship. After all, a number of the factors in 48 C.F.R.
§ 37.104(d) could support the characterization of a contract as one for
nonpersonal services. We assume that the contract would not be per-
formed on-site at DHS’s premises, during DHS-determined work hours,
or using DHS-furnished tools or equipment. The services also would be
related to a single proceeding that is limited in time and not within DHS’s
usual functions. Although the contract would require a certain level of
supervision by DHS, it would also call for private counsel to exercise a
significant degree of professional judgment, much in the way that private
clients often retain outside counsel without exercising the type of supervi-
sion akin to that of an employer over an employee. Should an impeach-
ment inquiry of the kind you describe occur or seem imminent and DHS
decide to pursue the option of retaining private counsel for the activities
you describe, this issue will need to be considered in the context of the
specific facts presented. 7
7 This memorandum does not address the question of what level of control the agency
is required to maintain over private counsel. We consider this question to be too fact-
specific to answer in the abstract.
In a similar vein, this memorandum does not address whether a contract between DHS
and private counsel would be subject to competitive contracting procedures. As a general
matter, an agency that conducts a procurement for property or services must “obtain full and
open competition through the use of competitive procedures in accordance with the re-
quirements of this division and the Federal Acquisition Regulation.” 41 U.S.C. § 3301(a)(1);
see also id. § 3304(a) (allowing use of noncompetitive contracting procedures when
certain circumstances are present). We leave it to DHS to consider the contracting proce-
dures that DHS would use.
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Retaining Private Counsel in Impeachment Processes
II.
We conclude that DHS may contract with and pay for private counsel
to assist DHS in representing itself and the Secretary in an impeachment
proceeding aimed at decisions or actions within the scope of the Secre-
tary’s official duties and unaccompanied by any allegations of personal
misconduct.
CHRISTOPHER H. SCHROEDER
Assistant Attorney General
Office of Legal Counsel
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