Representation of White House Employees

[T h e fo llo w in g m em o ran d u m op in io n discusses th e p ro p rie ty , u n d e r app licab le law s and
   reg u latio n s, o f p ro v id in g legal rep re sen tatio n at g o v e rn m e n t expense to W h ite H ouse
   em p lo y ees in c o n n e c tio n w ith p en d in g in v estig atio n s by th e Ju stic e D e p a rtm e n t’s
   O ffice o f P ro fessio n al R esponsibility an d the S en ate Ju d ic ia ry C o m m ittee. Its c o n c lu ­
   sions are su m m arized in its seco n d p arag rap h .]


                                                                                       August 27, 1980

                         MEMORANDUM OPINION FOR
                      T H E COUNSEL TO TH E PR ESID EN T

  This responds to the request from the Deputy Counsel to the Presi­
dent for our views concerning the propriety of providing legal repre­
sentation for White House employees who are questioned by either the
Justice Department’s Office of Professional Responsibility (OPR), or
the Senate Judiciary Committee in connection with the investigations
presently underway into the relationship and activities of the Presi­
dent’s brother, Billy Carter, with respect to the government of Libya.
We recognize that timely advice on this question is of the essence, since
the OPR and Senate investigations are currently in progress. Accord­
ingly, we have briefly described our conclusions in this memorandum,
and where available, we have attached supporting materials that were
prepared in connection with other inquiries.
  Our conclusions can be summarized as follows:
           (1) White House employees should be discouraged from ac­
               cepting offers of free or discounted professional service
               from private lawyers because of the appearance that the
               service has been offered because of their employment at the
               White House, and because of the limitations imposed by 3
               C.F.R. 100.735-14 (1980).
           (2) OPR Investigation: No government attorney, and no private
               attorney retained at government expense may represent
               White House employees in connection with the OPR inves­
               tigation. Employees may choose to retain counsel at their
               own expense to represent their individual interests before
               OPR.


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           (3) Senate Investigation: No government attorney, and no pri­
               vate attorney retained at government expense may represent
               the personal interests of White House employees in connec­
               tion with the Senate investigation. Employees may choose
               to retain private counsel to represent their personal interest
               before the Senate Committee.
           (4) A government attorney may and should represent govern­
               mental interests in connection with the questioning of White
               House employees by the Senate Committee. A government
               attorney may be “detailed” from an agency which other­
               wise has no involvement in the matter under investigation,
               or a private attorney may be retained by the White House
               as a special government employee to perform this function.
           (5) Private counsel retained by employees may not represent
               governmental interests before OPR or the Senate Com­
               mittee.
   A prefatory summary of the pertinent background facts is useful in
order to place the representation issues raised by your opinion request
in a proper context. Two investigations are pending at this time: (1) an
investigation undertaken by this Department’s Office of Professional
Responsibility pursuant to a special direction from the Acting Attorney
General focused on whether any employee of this Department, the
White House, or any other person is chargeable with criminal, civil, or
administrative wrongdoing growing out of the Administration’s activi­
ties concerning Billy Carter’s contacts with Libya, 45 Fed. Reg.
52,946-47 (1980); and (2) an investigation conducted by a subcommittee
of the Senate Judiciary Committee which presumably will focus on the
legislative consequences, if any, of the matter, rather than on govern­
mental sanctions. See generally 126 Cong. Rec. 19,544-46 (1980). You
have advised us that both investigations are now consuming the time of
White House employees, and that several have inquired whether they
are entitled to legal representation by the government in responding to
either investigation. You have also informed us that, pursuant to an
agreement with the Senate committee, your Office has agreed not to
represent any employee involved in the Senate’s investigation, presum­
ably to avoid even the appearance of collusion or other wrongdoing.
There remain, then, several possible sources of representation, including
Justice Department lawyers, detailees from other departments to the
White House, special government employees, private counsel retained
under the Justice Department’s Representation Guidelines, or donated
legal services. We will address first the acceptance of legal services
donated by private counsel.1

   1   W e recognize that it will be necessary for some W hite H ouse em ployees to spend considerable
time gathering and assembling materials in response to the O P R and Senate inquiries. W e view this as
                                            C ontin ue d


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   Donation o f Legal Services. The acceptance of free or discounted legal
services is within the parameters of the White House Standards of
Conduct dealing with gifts, entertainment, and favors. 3 C.F.R.
100.735-14 (1980). Subsection (a) of this regulation prohibits the accept­
ance of anything of monetary value from a person (defined to include a
firm) who:
             (1) Has, or is seeking to obtain, contractual or other
          business or financial relations with his agency;
             (2) Conducts operations or activities which are regu­
          lated by his agency; or
             (3) Has interests which may be substantially affected by
          the performance or nonperformance of his official duty.
 The text of subsection (b) of the regulation would appear to permit the
 acceptance of gifts prohibited by the above criteria if the gift is given
 by a friend or close relative when the circumstances make it clear that
 the personal relationship involved is the motivating factor. However, in
 light of the more general requirement to avoid appearances of impropri­
  ety (see 3 C.F.R. 100.735-4) (1980), we would caution against the
 acceptance of donated legal services from any law firm which has or is
 likely to do business with the Government, or from any firm which
 may appear to have offered the services because of the employee’s
 White House employment.
    Representation before OPR. This Office has long held the view that
 the Government may not participate on both sides of a federal criminal
 investigation. The attached memoranda explain in some detail the basis
 for our conclusion that executive agencies lack the authority to provide
counsel for employees in federal criminal matters.
    The opinions of the Comptroller General support our conclusion,
 although they do not address the precise question of representation in a
 federal criminal matter. In determining whether particular expenses
were “necessary” as that term is used in various appropriation acts, the
Comptroller General has consistently distinguished between govern­
mental interests and personal interests, concluding that expenditures
were only authorized to the extent that they serve governmental inter­
ests. See, e.g., 54 Comp. Gen. 1075 (1975) (television set); 54 Comp.
Gen. 976 (1975) (gifts to seminar attendees); 47 Comp. Gen. 657 (1968)
(coffee equipment). The Comptroller General reiterated the importance
of this distinction between personal and governmental interests in an
opinion dealing with the retention of private counsel to defend federal
judicial officers in instances where Justice Department representation is
unavailable. 53 Comp. Gen. 301 (1973). Although the opinion does not

a proper governm ental function w hich may be perform ed by governm ent em ployees, be they law yers
o r non-law yers. H ow ever, your inquiry seems to be directed at the m ore traditional role o f law yers as
personal representatives and advocates for a particular client. It is this latter role that w e will address
in this mem orandum .

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address the question of representation in a federal criminal matter, it
does find limited authority for the payment of counsel. However, one
clear limitation stated in the opinion is that appropriated funds are to be
used:
           only to the extent necessary to protect the judiciary’s
           interest in the outcome of the subject litigation, rather
           than the judicial officer’s personal interest in having his
           decision upheld, and that such funds are not used, in
           effect, merely to defend a private litigant’s position where,
           as is the case in most appeals of judicial rulings, the
           judiciary and the United States have no real interest in the
           outcome of the appeal.
53 Comp. Gen. at 306.2 The opinion also notes that Justice Department
representation should be sought as an initial matter and would be
available in many cases. However, the opinion recognizes that private
counsel may be necessary when there are conflicts presented by Justice
Department representation, as in the case of a mandamus action
brought by the Attorney General.
   In a more recent decision, 58 Comp. Gen. 613 (1979), the Comptrol­
ler General held that the SEC could not reimburse employees for legal
fees incurred as a result of its own misconduct investigation, despite the
fact that the initial charges were made by a private party and the
investigation was ultimately resolved in favor of the employees. The
Comptroller General explained his reasoning as follows:
              Under these circumstances, the cost of providing coun­
           sel may not be considered a proper expenditure of appro­
           priated funds. Upon SEC’s determination that the matter
           should be further investigated with respect to three of the
           SEC employees, the situation was no longer one in which
           the Government’s interest was aligned with the interests
           of the three employees against charges pressed by a third
           party, and thus it was no longer in the Government’s
           interest to provide them with legal counsel. The SEC
           hearing was a formal agency fact-finding inquiry to deter­
           mine whether its employees were guilty of misconduct. In
           fact, at that point, the situation was indistinguishable from
           that in which an agency itself initiates an investigation
           into the conduct of its own employees. That the employ­
           ees were ultimately vindicated does not change the char­
           acter of the proceeding.

   2     A n o th e r explicit prerequisite set by the C o m p tro ller G eneral in this opinion w as that the A dm inis­
trative O ffice o f the U.S. C ourts "advise fully the app ro p riate legislative and appropriations com m it­
tees o f the C ongress o f yo u r plans and th e estim ated cost th ereof." 53 Com p. Gen. at 306.


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 58 Comp. Gen. at 618. Read together, the Comptroller General’s deci­
 sions regarding representation of judicial and SEC employees support a
 conclusion that, absent express congressional authorization, counsel
 may not be provided to defend executive branch employees in an
 investigation or proceeding being pursued within the executive branch.
    Since the direction to the Counsel on Professional Responsibility
 leaves no room for doubt that the OPR inquiry has potential criminal
 ramifications, that conclusion controls with respect to the OPR inquiry.
 Moreover, even absent the criminal ramifications, the same consider­
ations would preclude providing representation for employees in con­
 nection with an investigation of wrongdoing that may result only in
some form of administrative or civil sanction by the Government (such
as a fine, reprimand, or discharge). Therefore, it is our conclusion that
no representation at federal expense is permissible in responding to the
OPR investigation. Of course, employees may retain counsel to repre­
sent their personal interests at their own expense.3
   Representation in the Congressional Inquiry. Representation before the
Senate committee is a more complicated problem. It is important first
to distinguish between the representation of the personal interests of
employees, and the representation of official governmental interests,
because we believe that in this case the Government may provide
counsel to represent governmental but not personal interests. The dis­
tinction between official and individual interests is made frequently in
connection with the representation of employees in litigation, and the
Justice Department’s Representation Guidelines* anticipate that this
distinction will be made in connection with the representation of em­
ployees before Congress. As we noted earlier, this distinction is also
made by the Comptroller General in determining the availability of
appropriated funds to cover a particular expense.
   Although we recognize that the official and personal interests of
employees may overlap to a large extent, there are also interests which
are purely personal or entirely governmental. For example, the interests
in avoiding federal criminal prosecution, civil liability to the United
States or adverse administrative action by a federal agency are clearly
personal rather than governmental interests. On the other hand, the
interests in asserting a governmental privilege or defending official
policies and procedures are governmental interests. The interests in
presenting information correctly and clearly are both personal and
governmental.

   3     W e have not precluded the possibility o f counsel to represent direct governm ental interests w hich
may arise in connection w ith the O P R investigation. If such governm ental interests arise, they may be
represented. W e have described this possibility and the m echanics o f such representation in connection
w ith the congressional inquiry.
   • N o t e : T h e Justice D epartm ent R epresentation G uidelines referred to in the text w ere published in
the C ode o f Federal R egulations in substantially unchanged form in 1982. 28 C .F .R . §50.15
(1982). Ed.


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     The personal interests of employees in regard to the congressional
 investigation tend to parallel the purposes of the OPR investigation.
 Generally, it will serve the personal interests of employees to avoid
 making statements to the Senate that would result in adverse criminal,
 civil, or administrative action by OPR. As discussed above, there is no
 existing statutory authority for the executive branch to protect these
 personal interests through the provision of counsel. To the extent that
 these interests are implicated by the Senate investigation, we think that
 it would be inappropriate for the Government to provide counsel to
 represent them.4
     However, there are also legitimate governmental interests which arise
whenever executive branch employees are called to testify before the
Congress. Ordinarily, these interests are monitored by agency counsel
who accompany executive branch employees called to testify before
congressional committees. We do not believe that your acquiescence in
the Senate committee’s demand not to serve as counsel should preclude
all representation of governmental interests in connection with the
Senate investigation. We have previously concluded that it would be
proper to “detail” government attorneys to the White House to provide
legal services in connection with the Watergate investigation so long as
the lawyer’s employing agency did not have conflicting responsibilities
in the case. On this basis, an attorney from any agency which is not
involved in the Billy Carter matter could be “detailed” to the White
House to represent governmental interests in connection with the
Senate investigation. We also see no reason why the White House may
not retain a lawyer from a private firm as a special government em­
ployee to perform this function, since the 1980 White House appropria­
tion leaves ample discretion to hire counsel for this purpose. Executive
Office Appropriations Act, Pub. L. No. 96-74, 93 Stat. 563 (1980).5
The alternatives of detailed or retained counsel should respond to the
legitimate concerns of the Senate investigators, without undermining
your responsibility to protect legitimate governmental interests in this
matter.
    iii our view, any counsel directed to represent governmental interests
must be controlled by the Government, and private counsel retained by
employees to represent personal interests should not be permitted to
assert governmental interests or privileges. Although it can become

   4     T h e attached D epartm ent o f Justice R epresentation G uidelines d o appear to contem plate cases in
w hich it w ould be p roper for this D epartm ent to provide representation to em ployees called before
congressional com m ittees “ in their individual capacities.” See 28 C .F .R . § 50.15(a) (1982). H eretofore,
this section has becom e operable w hen a present o r form er federal em ployee has been a defendant in a
private civil suit and has sim ultaneously been called as a w itness before a congressional com m ittee. In
such a case, the retention o f counsel m ay be necessary to p rotect the em ployee from providing
testim ony that w ould unnecessarily com prom ise the defense o f the civil case.
   *    T echnically, representation o f this lim ited nature m ight be provided by this D epartm ent, but in
light o f the potential for conflicts—o r at least the appearance thereof—w e doubt that such representa­
tion should be considered.

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difficult to distinguish between personal and governmental interests,
this point is one of considerable importance. Any employee detailed by
the Government to serve as counsel in this matter, first, must clearly
understand that he is the Government’s lawyer and not private counsel
for the represented employee, and, second, that he reports to and is
responsible to the Government. We cannot foresee all of the particular
ways in which this distinction will apply, but care must be taken
throughout the course of any representation to assure that the interests
of the Government control the decisions that are made.

                                        John M. H arm on
                                    Assistant Attorney General
                                     Office o f Legal Counsel




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