Department of Justice Representation in Federal Criminal

Proceedings

The Attorney G eneral’s statutory authority to provide legal representation to individual federal 

employees sued for acts occurring in the course of their official government duties does not extend 

to representation in a federal criminal proceeding, since in such a case the interests of the United 

States have been defined by the prosecuting authority to be adverse to those of the defendant.

February 11, 1982

MEMORANDUM OPINION FOR THE GENERAL COUNSEL, 

DEPARTMENT OF DEFENSE

This responds to your request that the Department 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 Department of Justice attorneys whenever “ [t]he representation 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 misdemeanor offense. The lieutenant, who was not afforded Department 

of Justice representation, defended himself and was acquitted. You have suggested that application of the regulation prohibiting representation in a federal 

criminal proceeding is inappropriate when a “ low-level, statutory, strict-liability 

misdemeanor,” such as a violation of the Migratory 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 “ amounts 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 General’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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employees who 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 

important 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 

United States are deemed to be served best by extending legal assistance to its 

employees when an outside party challenges conduct occurring in the course of 

government service.

In the case of a federal criminal prosecution, however, the interests of the 

United States have been defined by the prosecuting authority to be adverse to 

those of the defendant. Therefore, the Attorney General’s authority to conduct 

litigation on behalf of the United States does not extend to representation of an 

employee 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 

government 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 

compliance with 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 of the Migratory Bird Conservation Act were treated as a “ civil” 

offense for purposes of representation, as you suggest, Department of Justice 

attorneys could not represent the federal employee. In sum, representation of 

federal employees 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 United States have been determined to be adverse to the interests 

of one of its em ployees, the Attorney General’s authority to represent the United 

States cannot extend to representation of that employee.

You have suggested that (1) criminal charges not be brought against a government official for conduct taken in his or her official capacity without first 

determining the employing agency’s position, and (2) if the agency and the 

Departm ent of Justice agree that the employee was acting legitimately within the 

scope of his or her official authority, that the Department of Justice represent 

the employee in a subsequent criminal proceeding. Essentially, this would 

provide for the same 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 

employee subject to federal prosecution. Thus, the consultation suggested could 

not achieve the result you seek. Furthermore, we believe that it would be 

inappropriate to require formal consultation with a federal employee’s agency 

before bringing criminal 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 employee’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 Department. 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 judgment 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 circumstances [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 important concerns underlying the existing policy, I am not inclined 

to recommend a change in basic policy simply because anomalies may occasionally 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 h e o d o r e B . O l s o n

Assistant Attorney General

Office cf Legal Counsel

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