The Attorney General’s Role as Chief Litigator for

the United States

[The following mem orandum describes the development and present scope of the Attorney G eneral's 

role in representing the United States and its agencies in litigation. It discusses the policy reasons 

for the centralization of litigation authority in the Department of Justice, and analyzes the Attorney 

G eneral’s relationship with client agencies. It also touches on the Attorney G eneral’s authority to 

settle and com prom ise cases, and on his authority over litigation in international courts. It 

concludes that, absent clear legislative directives to the contrary, the Attorney General has plenary 

authority and responsibility over all litigation to which the United States or one of its agencies is a 

party, and that his discretion is circumscribed only by the President’s constitutional duty to “take 

Care that the Laws be faithfully executed."]

January 4, 1982

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

You have asked this Office to outline the role and responsibilities of the 

Attorney General in representing the United States in litigation in which the 

United States, or a federal agency or department, is a party. In particular, you 

asked that we consider the Attorney General’s authority and responsibility to 

make decisions with respect to litigation, even if those decisions may conflict 

with the views, desires, or legal analyses of other departments or agencies of the 

United States, including those which may be “clients” in the particular litigation. 

Litigation involving agencies which have been granted express exclusive authority by Congress to conduct their own litigation is not within the scope of this 

m emorandum.1 Rather, the focus of this memorandum is litigation involving

1 Circum stances in w hich the Attorney General lacks supervisory authority over litigation on behalf of the U nited 

States include ( I) Litigation in U nited States courts where the Attorney General has no authority to determ ine w ho 

shall represent the U nited States, such as the United States Tax Court (26 U S-C. § 7452 specifies that the U nited 

States shall be represented by the C hief Counsel for the Internal Revenue Service or his delegate) and the U nited 

States Court of M ilitary A ppeals (10 U S C § 870 specifies that the United States shall be represented by the Judge 

Advocate General o r his delegate); (2) Litigation involving independent regulatory agencies which have been given 

the express statutory authority to conduct their own litigation using agency attorneys, e g ., the National L abor 

Relations Board (29 U S C § 154(a)); the Federal Power Com m ission (16 U .S .C . § 825m(c) pow er transferred to 

Federal Energy Regulatory C om m ission (42 U .S C. § 7172(a)(2)(A) (Supp IV 1980)), the Interstate C om m erce 

Com m ission (49 U .S .C . § 16(11) (Supp IV 1980)); and (3) Litigation involving Executive Branch agencies w hich 

have been granted independent litigating authority by C ongress, e g , the Secretary of Labor is authonzed to appoint 

attorneys to represent the Secretary or the Benefits Review Board in actions under the Longshorem en’s and H arbor 

W orkers’ C om pensation A ct, except in the Supreme C ourt, under 33 U S.C . § 921a.

There are also circum stances in which certain agencies have assum ed, notw ithstanding their lack of express 

statutory authority, full responsibility for their ow n trial and appellate litigation, so far w ithout objection from the 

Attorney G eneral. These agencies, such as the Tennessee Valley A uthority and the Federal D eposit Insurance 

C orporation, have not been required to submit to the Attorney G eneral's supervisory authority, apparently for

C ontinued

47
those agencies whose litigating authority is clearly subject to the Attorney 

G eneral’s direction, or whose statutory grants of authority are ambiguous or 

insufficient to remove them from the A ttorney General's supervision.

We conclude that, absent clear legislative directives to the contrary, the 

Attorney General has full plenary authority over all litigation, civil and criminal, 

to which the United States, its agencies, or departments, are parties. Such 

authority is rooted historically in our common law and tradition, see Confiscation

C ases, 74 U . S . (7 W all.) 454,458-59 (1868); The G ray Jacket, 72 U . S . (5 Wall.) 

370 (1866) and, since 1870, has been given a statutory basis. See 5 U.S.C. 

§ 3106, and 28 U .S.C . §§ 516, 519. See generally United States v. San Jacinto

Tin C o ., 125 U.S. 273 (1888). The Attorney General’s plenary authority is 

circum scribed only by the duty imposed on the President under Article II, § 3 of 

the Constitution to “take Care that the Laws be faithfully executed.”

I. Historical Development of the Role of the Attorney General

Plenary power over the legal affairs of the United States was vested in the 

Attorney General when the Office of the Attorney General of the United States 

was first created by the Judiciary Act of 1789. Act of September 24, 1789, ch. 20, 

§ 35, 1 Stat. 92.2

The Attorney General’s statutory authority to conduct litigation to which the 

United States, its departments, or agencies, is a party was more fully developed 

by Congress in 1870, in the same legislation that provided for the creation of the 

Departm ent of Justice. A c to fJu n e 2 2 ,1870,ch. 1 5 0 ,16Stat. 162. Prior to 1870, 

however, the Attorney General’s authority in litigation matters involving the 

United States had been recognized by the Supreme Court. In The G ray Jacket, 72 

U .S. (5 Wall.) 370 (1866), the Court held that no counsel would be heard for the 

United States in opposition to the views of the Attorney General. In the C onfiscation C ases, 74 U.S. (7 Wall.) 454 (1868), the Court concluded that:

W hether tested, therefore, by the requirements of the Judiciary 

Act, or by the usage of the government, or by the decisions of this

historical reasons, som e o f w hich relate to th e ir financial independence as governm ent corporations. See Daniel J 

M eador, A ssistant A ttorney G eneral, Office fo r Improvements in the Administration of Justice, D raft M em orandum 

to the A ttorney G eneral and the Assistant A ttorneys G eneral Re: G overnm ent Relitigation Policies (M ay 21, 1979), 

M em orandum to the Attorney General from W illiam D. Ruckelshaus (M ar 5, 1970) The operative statutes in these 

tw o ca ses, 16 U S C § 831c(h), 83lx (TV A ) and 12 U S C § 1817(g) (FD1C), merely give the agencies the 

authority to sue and be sued— not to litigate independently of the D epartm ent of Justice. Presumably, the Attorney 

G eneral may reassert his supervisory authority at any tim e.

2 S ection 35 of the Judiciary Act provided in pertinent part that

[T]here shall . . be appointed a m eet person, learned in the law, to act as attorney-general for the 

U nited States, w ho shall be sworn o r affirm ed to a faithful execution of his office; w hose duty it 

shall be to prosecute and conduct all suits in the Suprem e Court in which the United Slates shall be 

concerned, and to give his advice and opinion upon questions of law when required by the 

President o f the U nited States, or w hen requested by the heads of any of the departm ents, touching 

any m atters that may concern their departm ents.

“ D istrict attorneys," now know n as “U nited States A ttorneys," were to be appointed to conduct litigation in the 

low er courts o f the U nited States but were not placed under the Attorney G eneral’s authority until 1861 Act of 

A ug. 2, 1861, ch 37, 12 Stat 285. F rom 1820 until 1861, the “district attorneys” w ere supervised by the 

D epartm ent o f the Treasury. A ct of May 15, 1820, ch 107, 3 Stat 592

48
court, it is clear that all such suits, so far as the interests of the 

United States are concerned, are subject to the direction, and 

within the control of, the Attorney-General.

74 U.S. (7 Wall.) at 458-59.

The' 1870 Act established the Department of Justice and designated the 

Attorney General as its chief legal officer. The Act provided that certain specified 

“solicitors” performing legal functions within the various agencies “shall be 

transferred from the Departments with which they are now associated to the 

Department of Justice, . . . and shall exercise their functions under the supervision and control of the head of the Department of Justice.” ( § 3 ,1 6 Stat. 162.)3 

The Act also authorized the Attorney General to designate any officer of the 

Department of Justice, including himself, to conduct and argue any case in which 

the government is interested, in any court of the United States, whenever he 

deems it necessary for the interest of the United States. (§ 5, 16 Stat. 162.) In 

addition, the Act gave the Attorney General supervisory authority over the 

conduct and proceedings of the various attorneys for the United States in the 

respective judicial districts, “and also of all other attorneys and c o u n se llo rs 

employed in any cases or business in which the United States may be concerned.” 

(§ 16, 16 Stat. 164.) And finally, the Act forbade the Secretaries of the Executive 

Departments to employ other attorneys or outside counsel at government expense, but “shall call upon the Department of Justice . . ., and no counsel or 

attorney fees shall hereafter be allowed to any person . . ., besides the respective 

district attorneys . . ., for services in such capacity to the United States, . . . 

unless hereafter authorized by law, and then only on the certificate of the 

Attorney-General that such services . . . could not be performed by the AttorneyGeneral, . . . or the officers of the Department of Justice.” (§ 17, 16 Stat. 164.) 

16 Stat. 162.

The initial motivation for this legislation was the desire to centralize the 

conduct and supervision of all litigation in which the government was involved, 

as well as to eliminate the need for highly paid outside counsel when governmenttrained attorneys could perform the same function. Other objectives of the 

legislation that were advanced in the congressional debates were to ensure the 

presentation of uniform positions with respect to the laws of the United States (“a 

unity of decision, a unity of jurisprudence . . . in the executive law of the United 

States”),4 and to provide the Attorney General with authority over lower court 

proceedings involving the United States, so that litigation would be better 

handled on appeal, and before the Supreme Court. See Cong. Globe, 41st Cong., 

2d Sess., Pt. IV, 3035-39, 3065—66 (1870). See generally Bell, The Attorney

General: The Federal Governm ent’s C hief Lawyer and C hief Litigator, or One

Among Many?, 46 Fordham L. Rev. 1049 (1978); Key, The Legal Work of the

Federal Government, 25 Va. L. Rev. 165 (1938).

3 Prior to the A ct, Congress had provided for the existence of “solicitors” in the various departm ents and agencies, 

w ho were responsible for the legal affairs of their respective departm ents See generally Key, The Legal Work o f the

Federal Government, 25 Va L Rev 165 (1938).

4 Cong G lobe, 41st Cong . 2d Sess , Pt IV, 3035, 3036 (1870)

49
The Supreme Court considered this legislation in United States v. San Jacinto

Tin C o., 125 U.S. 273 (1888) and concluded that the Attorney General was 

“undoubtedly the officer who has charge of the institution and conduct of the 

pleas of the United States, and of the litigation which is necessary to establish the 

rights of the government.” Id. at 279. Emphasizing the centralizing function of 

the Department of Justice and the Attorney General, the Court reasoned that the 

power to control government litigation must lie somewhere— that there must 

exist some officer with authority to decide when the United States should sue, and 

to oversee the execution of such a decision— and that the Attorney General was 

designated such appropriate officer, in the Judiciary Act of 1789, by reference to 

the historical practice in England.5125 U.S. at 278-80. In 1921, the Court added 

that the Attorney General’s authority to conduct such litigation could be affected 

only by clear legislative direction to the contrary. Kern River Co. v. United

States, 257 U .S. 147, 155 (1921). See also 21 Op. A tt’y Gen. 195 (1895). (The 

Secretary of the Navy was not warranted in employing counsel in a foreign 

country to institute suit in behalf of the United States, but should have referred 

the matter to the Department of Justice, “which is charged with the duty of 

determining when the United States shall sue, for what it shall sue, and that such 

suits shall be brought in appropriate cases,” id. at 198.)

Lower courts reached similar conclusions with respect to subsequent recodifications of the 1870 legislation. The Court of Claims summarized the 

legislation in the following manner:

These provisions are too comprehensive and too specific to 

leave any doubt that Congress intended to gather into the Department of Justice, under the supervision and control of the AttorneyGeneral, all the litigation and all the law business in which the 

United States are interested, and which previously had been 

scattered am ong different public officers, departm ents, and 

branches of the Government, and to break up the practice of 

frequently employing unofficial attorneys in the public service.

Perry v. U nited States, 28 Ct. Cl. 483, 491 (1893). Speaking for the Second 

Circuit Court of Appeals, Judge Learned Hand emphasized the centralizing 

function of the Attorney General’s role as chief litigator for the United States and 

the necessity that that role be committed exclusively to the Attorney General:

The government has provided legal officers, presumably competent, charged with the duty of protecting its rights in its

5 This reference is to the origin of the office of Attorney G eneral, which was first created in the Judiciary Act of 

1789, and derived its function from the ro le of the A ttorney G eneral in England. The Court stated.

T he judiciary act o f 1789 . w hich first created the office of Attorney G eneral, without any very 

accurate definition o f his powers, in using the words that “there shall also be appointed a meet 

person, learned in th e law, to act as Attorney G eneral for the United States," 1 Stat. 93, c. 21, § 35, 

m ust have had reference to the sim ilar office w ith the sam e designation existing under the English 

law. A nd though it has been said th at there is no com m on law of the United States, it is still quite 

true that w hen acts o f Congress use words which are fam iliar in the law o f England, they are 

supposed to be used w ith reference to their m eaning in that law.

125 U .S . at 280

50
courts. . . . Congress, having so provided for the prosecution of 

civil suits, can scarcely be supposed to have contemplated a 

possible duplication in legal personnel. The cost of this is one 

consideration, but far more important is the centering of responsibility for the conduct of public litigation. The Attorney General 

has powers of “general superintendence and direction” over district attorneys (title 5, U.S. Code, § 317 [5 USCA § 317]), and 

may directly intervene to “conduct and argue any case in any 

court of the United States” (title 5, U.S. Code, § 309 [5 USCA 

§ 309]). . . . Thus he may displace district attorneys in their own 

suits, dismiss or compromise them, institute those which they 

decline to press. N o such system is capable o f operation unless his

pow ers are exclusive, or if the Departments may institute suits

which he cannot control. His powers must be coextensive with his

duties.

Sutherland v. International Insurance C o., 43 F.2d 969,970 (2d Cir. 1930), cert,

denied, 282 U .S. 890 (1930) (emphasis added).

In 1933, as part of a crusade to consolidate as much of the government’s 

business as necessary to increase operating efficiency, President Roosevelt issued 

an executive order to supplement the existing legislative mandate of centralized 

litigation authority. Executive Order No. 6166 (June 10, 1933), which requires 

all claims by or against the United States to be litigated by, and under the 

supervision of, the Department of Justice, is still in effect. The order provides in 

pertinent part:

Claims by or against the United States.

The functions of prosecuting in the courts of the United States 

claims and demands by, and offenses against, the Government of 

the United States and of defending claims and demands against 

the Government, and of supervising the work of United States 

attorneys, marshals, and clerks in connection therewith, now 

exercised by any agency or officer, are transferred to the D epartment of Justice.

As to any case referred to the Department of Justice for prosecution or defense in the courts, the function of decision whether 

and in what manner to prosecute, or to defend, or to compromise, 

or to appeal, or to abandon prosecution or defense, now exercised 

by any agency or officer, is transferred to the Department of 

Justice.

Reprinted in 5 U.S.C. § 901 note (1976).

II. Present Statutory Bases of the Attorney General’s Authority

These attempts to centralize the litigating function and authority of the federal 

government in the Department of Justice, with the Attorney General at its helm,

51
are now codified in 5 U.S.C. § 3106and 28 U .S.C . §§ 515-516. Section 3106 of 

Title 5 forbids the employment of outside counsel by executive agencies for 

litigation involving the United States unless Congress has provided otherwise, 

requiring instead that the m atter be referred to the Department of Justice.6 

Although we have found no case law interpreting this provision, the language of 

§ 3106 appears to limit the prohibition of payment to outside counsel for 

litigation, and litigation-related matters. However, in view of the centralization 

and uniformity purposes underlying the 1870 Act and its progeny, we believe 

that, absent statutory authority to the contrary, the prohibition should be broadly 

interpreted to preclude payments to non-agency or non-Justice Department 

attorneys for (legal) advisory functions as well. See Scalia, Assistant Attorney 

General, Office of Legal Counsel, Letter to Hoffman, General Counsel, Department of Defense (Mar. 2 6 ,1975).7 See also B oyle v. U nitedStates, 309F.2d399, 

402 (Ct. Cl. 1962) (quoting from a 1957 letter by the Comptroller General: “[I]n 

the absence of urgent and compelling reasons, a Government agency may not 

procure from an independent contractor services normally susceptible of being 

performed by Government em ployees.”). Nevertheless, the Attorney General 

may employ outside counsel to perform legal duties under his direction. Sections 

515 and 543 of Title 288 authorize the Attorney General to commission “special 

attorneys” to assist United States Attorneys, or to “conduct any kind of legal 

proceeding, civil or criminal, . . . which United States attorneys are authorized 

by law to conduct . . .

6 5 U S C § 3106 provides in pertinent p art that.

[ejxcept as otherw ise authorized b y law, the head o f an Executive departm ent o r military 

departm ent may not em ploy an attorney or counsel for the conduct of litigation in w hich the United 

S tates, an agency, o r employee th ereo f is a party, or is interested, or for the securing o f evidence 

therefor, but shall refer the matter to the D epartm ent o f Justice.

7 A lthough the Scalia letter w as written in response to an inquiry regarding the use o f outside counsel by an 

agency in connection w ith the investigation o r prosecution of adm inistrative claim s, the principles expressed therein 

are broadly applicable

In prohibiting the use o f outside co u n sel by the several departm ents, Congress concentrated all 

the G overnm ent’s law business in the D epartm ent of Justice— not only litigation, but also advisory

functions. This was thought to be necessary in order to provide for uniform legal interpretations 

throughout the Executive branch . . . Congress later departed from the principle that all legal 

activities o f the Governm ent were to be carried out by the D epartm ent of Justice; subsequent 

legislation, authorizing and funding agency legal staffs, perm itted legal matters not involving 

litigation to be handled in the various agencies. Those changes were taken into account when 

C ongress, in 1966, codified the various provisions o f the law going back to the Departm ent of 

Justice A ct o f 1870. S ee, e.g , H isloricaland Revision Notes to 5 U .S .C 3 1 0 6 an d 2 8 U S C 516.

T here is, however, no indicauon o f a C ongressional intent to relax the prohibition against 

engagem ent o f outstde counsel by agencies other than the D epartm ent of Justice. This principle 

rem ains in effect w ith respect to both litigation reserved to the D epartm ent o f Justice and 

nonlitigative m atters handled w ithin the several agencies.

Letter at 4-5 (footnotes and citations om itted) (em phasis added).

8 28 U .S .C . § 515(a), provides tn pertinent part that.

[t]he A ttorney G eneral o r any other officer of the D epartm ent of Justice, or any attorney specially 

appointed by the A ttorney General u n d er law, may, w hen specifically directed by the Attorney 

G eneral, conduct any kind of legal proceeding, civil o r c rim in a l. . which U nited States attorneys 

are authorized by law to conduct, w hether or not he is a resident o f the district in which the 

proceeding is brought

28 U .S .C . § 543 provides:

(a) T he Attorney G eneral may ap p o in t attorneys to assist United States attorneys when the public 

interest so requires

(b) Each attorney appointed under this section is subject to removal by the Attorney G eneral.

52
Sections 515-519 of Title 28 codify the law growing out of the 1870 Act which

consolidated the power to conduct litigation involving the United States in the 

Department of Justice, and granted the Attorney General supervisory authority 

over such litigation. The principal provisions granting such authority are §§ 516 

and 519. Section 516 provides that

[e]xcept as otherwise authorized by law, the conduct of litigation 

in which the United States, an agency, or officer thereof is a party, 

or is interested, and securing evidence therefor, is reserved to 

officers of the Department of Justice, under the direction of the 

Attorney General.

Section 519 provides that

[e]xcept as otherwise authorized by law, the Attorney General 

shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States 

attorneys, assistant United States attorneys, and special attorneys 

appointed under section 543 of this title in the discharge of their 

respective duties.

However, as with the previous legislative and executive efforts designed to 

centralize the litigating functions of the United States, these provisions have been 

undercut by exceptions authorized by Congress which grant agencies or departments litigating authority independent of the Department of Justice. See Bell, 

The Attorney General: The Federal Government's C hief Lawyer and C hief

Litigator, or One Among M any?, 46 Fordham L. Rev. 1049 (1978); Memorandum to the Attorney General, from William D. Ruckelshaus (Mar. 5, 1970); Key, 

The Legal Work of the Federal Government, 25 Va. L. Rev. 165 (1938).9 As of 

1978, some 31 Executive Branch and independent agencies were authorized to 

conduct at least some of their own litigation. Bell, supra, at 1057. Although this 

memorandum does not address those cases in which agencies have been granted 

independent litigating authority, the lines between the Attorney General’s authority and that which has been delegated to the agencies have at times been 

drawn ambiguously, and in those cases, the Attorney General frequently asserts 

his historic authority over the litigation proceedings.

9 Congress has thus far m aintained virtually unim paired the Attorney G eneral's control over the initiation of 

criminal proceedings See, e.g , 15 U S C. § 77t(b) (SEC), 16 U S C § 825m (a) (FPC). The preservation o f such 

authority in the Attorney G eneral is, we believe, sound constitutional policy, in view of the Executive s constitutional mandate to take care that the laws be executed faithfully. Such a responsibility carries with it the vindication of 

public rights through the institution of criminal proceedings against those who violate the laws w hich the Executive 

adm inisters As the Executive s chief legal officer, the A ttorney G eneral is singularly suited to carry out this 

responsibility

Similarly, the A ttorney G eneral’s authority to conduct cases in the Suprem e Court has rem ained undiluted 

Section 518 o f Title 28, which reserves the conduct and argum ent in the Suprem e Court of suits and appeals “in 

which the United States is interested" to the Attorney General and Solicitor G eneral. does not contem plate existing 

o r future statutory authorizations to the agencies, as do §§ 516 and 519 However. 518 does perm it the Attorney 

G eneral to “direct otherw ise,” in particular cases

53
III. Supervisory Authority in the Context of

Jointly Conducted Litigation

A . Policy Considerations

The policy considerations which support the centralization of federal litigating 

authority in the Department of Justice, under the supervision of the Attorney 

General, are many. In addition to the “unity of decision, unity of jurisprudence” 

goals that were articulated in the 1870 congressional debates, the centralization 

of authority and supervision over federal litigation in the Department of Justice 

meets several other objectives: (1) the coordination of lower court proceedings, 

which enhances the ability of government lawyers to select test cases presenting 

the governm ent’s positions in the best possible light; (2) the facilitation of 

presidential supervision, through the Attorney General, over Executive Branch 

policies that are implicated in litigation; (3) the allowance for greater objectivity 

in the filing and handling of cases by attorneys who are not themselves the 

affected litigants; and (4) the increased effectiveness in the handling of appeals 

and Supreme Court litigation which results from centralized control over lower 

court proceedings. See generally Memorandum to the Attorney General from 

W illiam D. Ruckelshaus, Re: Encroachments upon the Authority of the Attorney 

General to Supervise and Control the Government’s Litigation (Mar. 5, 1970). 

See also Harm on, Office of Legal Counsel, Memorandum for the Associate 

Attorney General (Dec. 11, 1980).

Centralization of federal litigating authority in the Department of Justice, 

under the supervision of the Attorney General, is vitally necessary to ensure the 

Attorney G eneral’s proper discharge of his duty to oversee the legal affairs of the 

United States with which Congress has entrusted him. Centralization ensures that 

the Attorney General is properly informed of the legal involvements of each of the 

agencies for which he is responsible; supervisory authority permits him to act on 

that knowledge. In this way, the Attorney General is better able to coordinate the 

legal involvements of each “client” agency with those of other “client” agencies, 

as well as with the broader legal interests of the United States overall. Yet, while 

the “client” agencies may be involved, to varying degrees, in carrying out the 

litigation responsibilities necessary to assist the Attorney General in representing 

the agency’s particular interests, it is essential that the Attorney General not

relinquish his supervisory authority over the agency’s litigation functions, for the 

Attorney General alone is obligated to represent the broader interests of the 

Executive. It is this responsibility to ensure that the interests of the United States 

as a whole, as articulated by the Executive, are given a paramount position over 

potentially conflicting interests between subordinate segments of the government 

of the United States which uniquely justifies the role of the Attorney General as 

the chief litigator for the United States. Only the Attorney General has the overall 

perspective to perform this function.

Nevertheless, it must be stressed that in exercising supervisory authority over 

the conduct of agency litigation, the Attorney General will generally defer to the

54
policy judgments of the client agency. This deference reflects a recognition of the 

agency’s considerable expertise in the substantive area with which it is primarily 

concerned. Strictly speaking, “policy” judgments are confined to those substantive areas in which the agency has developed a special expertise and in which the 

agency is vested by law with the flexibility and discretion to make policy 

judgments. However, it is increasingly the case that policy concerns are implicated in decisions dealing with litigation strategy, and in such cases, the Attorney 

General will accommodate the agency’s policy judgments to the greatest extent 

p o ssib le w ith o u t co m p ro m isin g the law, o r b ro a d e r natio n al p o licy 

considerations.

It is in the context of these dual representation functions— in which there exists 

inherent potential for conflict between “clients”— that questions of representation 

arise. Circumstances frequently develop in which the Attorney General and 

client agencies disagree as to the proper course of the litigation— including 

strategy, legal judgm ents, settlement negotiations, and policy judgments which 

impact on the litigation. Such circumstances frequently present the question 

whether the Attorney General should continue to represent the client.

The simple answer is yes. The Attorney General has not only the statutory 

authority to represent the agencies over whose litigation he exercises supervisory 

authority, but, indeed, the duty to do so, “[e]xcept as otherwise authorized by 

law.” 28 U .S.C. §§ 516, 519. The Attorney General’s authority and duty to 

represent these agencies are described more particularly by the specific legislation which sets forth his and the agencies’ respective litigation responsibilities, 

and occasionally, in “Memoranda of Understanding” entered into by the Attorney 

General and specific agencies apportioning such responsibilities. Nevertheless, 

unlike the private attorney, the Attorney General does not have the option of 

withdrawing altogether from the representation of client agencies, as long as 

interests of the United States for which he is held responsible are at stake.

However, recognition of the very real difficulties which are posed in the 

context of litigation jointly conducted by the Attorney General and “client” 

agencies— particularly in view of the agencies’ greater staffing resources, more 

intimate familiarity with the subject matter of the litigation, greater visibility to 

the public as a litigant, and more involvement in the day-to-day administration of 

field offices— tends to suggest that a more practical understanding of the Attorney 

General’s authority and duty to represent client agencies may be needed. Distinguishing policy judgments from legal judgments in litigation matters— the 

former being primarily the province of the agencies and the latter being reserved 

to the Attorney General— helps to provide not only a more reasonable and 

efficient use of government resources, but a workable framework for resolving 

most disputes that may result in representation crises. Nevertheless, because of 

his unique responsibilities in representing government-wide interests as well as 

those of particular “client” agencies, the final judgment concerning the best 

interests of the United States must be reserved to the Attorney General.

B. Legislative Exceptions to the Attorney G eneral’s Authority

Although Congress has over the years responded, in varying degrees, to the 

multitude of pressures exerted by agencies seeking independent litigating au55
thority, the courts have continued to give greater weight to the strong policy 

objectives which recommend centralization. As a result, the “otherwise authorized by law” language creating the exception to the Attorney General’s authority 

in 28 U .S.C . §§ 516 and 519 has been narrowly construed to permit litigation by 

agencies only when statutes explicitly provide for such authority. See M arshall v. 

G ibson ’s Products. Inc., 584 F.2d 668,676 n. 11 (5th Cir. 1978); ICC v. Southern

Railway, 543 F.2d 534, 535-38 (5th Cir. 1976); In re Grand Jury Subpoena of

Persico, 522 F.2d 41, 54 (2d Cir. 1975); FTC v. Guignon, 390 F.2d 323 (8th Cir. 

1968); U nited S tates v. Tonry, 433 F. Supp. 620 (E.D. La. 1977).

Although the legislative history of Sections 516 and 519 is relatively sparse— 

in fact, the “history” is contained almost entirely in the “Historical and Revision 

Notes” prepared by the revisers o f Title 5 in 1966— the courts’ strict interpretation of these provisions is supported not only by the historical antecedents of 

these statutes and the policy considerations discussed above, but also by the 

Reviser’s Notes to the 1966 am endm ents.10 The revisers state, with respect to 

both Sections 516 and 519, that the sections were revised to express the effect of 

existing law, which does permit agency heads, “with the approval of Congress,

[to employ] attorneys to advise them in the conduct of their official duties. . . .” 

28 U .S.C . § 516 note (emphasis added). The revisers further state that “[t]he 

words ‘Except as otherwise authorized by law,’ are added to provide for existing 

and future exceptions (e.g., section 1037 of title 10).” § 516 note; 28 U.S.C. 

§ 519 note. Thus the revisers have indicated that existing and future grants of 

litigating authority that are at least as express as the language contained in 10 

U .S.C . § 1037 are to be excepted from the Attorney General’s broad grant of 

authority under §§ 516 and 519 o f Title 28. Section 1037 of Title 10 permits the 

Secretaries of the various military departments to “employ [private] counsel” for 

the “representation” of persons subject to the Uniform Code of Military Justice 

“before the judicial tribunals and administrative agencies” of foreign nations. 

W hile nothing in the legislative history of § 1037 indicates a congressional intent 

to create an exception to the predecessors of §§ 516 and 519, Congress made 

clear in 1966 that the operative language, “the Secretary concerned may employ 

counsel . . . incident to the representation before . . . judicial tribunals” was 

sufficient to trigger the exception." See H.R. Rep. No. 1863, 84th Cong., 2d 

Sess. (1956); S. Rep. No. 2544 , 84th C ong., 2d Sess. (1956). See generally

Office of Legal Counsel, Memorandum to Peter R. Taft (Aug. 27, 1976).

In order to come within the “as otherwise authorized by law” exception to the 

Attorney G eneral’s authority articulated in 28 U .S.C . §§ 516 and 519, it is 

necessary that Congress use language authorizing agencies to employ outside

10 28 U S C §§ 5 1 5 -5 2 6 (1976), Pub L. N o . 89-554, § 4(c), 80 Stat 613 is the most recent codification of the 

provisions contained in the 1870 Act creating the D epartm ent of Justice Prior to 1966, these provisions were 

codified in Title 5

11 I 0 U S C § 1037 was. adopted in 1956, p rio rto the 1966adoption of 28 U S C §§ 516 and 519, and provides 

in pertinent part:

(a) U nder regulations to be prescribed by him, the Secretary concerned may em ploy counsel, and 

pay counsel fees, court costs, bail, an d other expenses incident to the representation, before the 

judicial tribunals and adm inistrative agencies o f any foreign nation, o f persons subject to the 

U niform C ode o f M ilitary Justice.

56
counsel (or to use their own attorneys) to represent them in court. See, e .g ., 49 

U.S.C. § 16(11) (Interstate Commerce Commission); 16 U.S.C. § 825m(c) 

(Federal Power Commission); 12 U.S.C. § 1464(d)(1) (Federal Home Loan 

Bank Board); 29 U.S.C. § 154(a) (National Labor Relations Board);12 5 U .S.C. 

§ 7105(h) (Supp. IV 1980) (Federal Labor Relations Authority).13 However, even 

agencies to which Congress has granted independent litigating authority may be 

prohibited from conducting their own litigation in the Supreme Court. See, e.g .,

42 U.S.C. § 2000e-4(b)(2) (Equal Employment Opportunity Commission); 5 

U.S.C. § 7105(h) (Supp. IV 1980) (Federal Labor Relations Authority).14 More 

ambiguous language, which, for example, authorizes an agency to “sue and be 

sued,”15 “bring a civil action,” or “invoke the aid of a court,” has been considered 

by some courts to be insufficient to confer independent litigating authority. See.

e.g ., ICC v. Southern Railway, 543 F.2d 534 (5th Cir. 1976); FTC v. Guignon,

,2 These statutes provide as follows 

I C C — 49 U .S C § 16(11)

The C om m ission may employ such attorneys as it finds necessary for proper legal aid and service 

of the Com m ission or for proper representation of the public interest*, in investigations made 

by it . o r to appear fo r or represent the Commission in any case in court.

F P C — 16 U S C 8 825m(c)— language substantially sim ilar to that provided for I C C 

Federal Home Loan Bank Board— 12 U .S C. 1464(d)(1)

The Board shall have pow er to cnforce this section and rules and regulations made hereunder In 

the enforcem ent of any provision of this section o r rules and regulations made hereunder . the

Board is authorized to act in its own nam e and through its own attorneys . .

National Labor Relations Board— 29 U S .C . § 154(a)

Attorneys appointed under this section may. at the direction of the Board, appearfor and represent

the Board in any case in court.

(Em phases added ) O f course, these authorizations must be read within the context of the whole statutory schem e of 

which they are a part— in som e instances these agencies are represented by the D epartm ent o f Justice.

13 Language sim ilar to that contained in the statutes cited in n. 12, supra was recently held by the District C ourt for 

the District of C olum bia to confer independent litigating authority on the Federal Labor Relations A uthority 

(FLR A), including the litigation o f proceedings under the Freedom of Information Act, 5 U S C . § 552 See AFGE

v Gordon, C A No. 81-1737 (D D C O ct. 23. 1981) The statute construed by the court as granting the FLRA 

independent litigating authority. 5 U S C § 7105(h) (Supp IV 1980), providesExcept as provided in section 518 o f title 28. relating to litigation before the Suprem e Court. 

attorneys designated by the Authority may appear fo r the Authority and represent the Authority in

any civil action brought in connection w ith any function carried out by the A uthority pursuant to 

this title or as otherwise authorized by law

The Appellate Section of the Civil Division has recom mended that the Departm ent of Justice not appeal this 

decision N evertheless, the D epartm ent has m aintained vigorously in the past, and will continue to m aintain, that 

broad grants o f independent litigating authority, sim ilar to those discussed above, do not encom pass cases arising 

under adm inistrative statutes that apply govem m ent-wide This view is supported by the strong policy im peratives 

of “unity in the executive law o f the United States." infra at 5, as well as some legislative history See H R 

C onf Rep No 539, 95th Cong . 1st Sess. 72 (1977). reporting on the Departm ent of Energy O rganization Act. 

Pub L No 95-91. 91 Stat 565. which established the Federal Energy Regulatory Com m ission

14 42 U S.C § 2000e-4(b)(2) provides

Attorneys appointed under this section may, at the direction of the C om m ission, appear for and 

represent the Com m ission in any case in court, provided that the Attorney General shall conduct

all litigation to which the Commission is a parly in the Supreme Court pursuant to this subchapter.

5 U S C § 7105(h) (Supp IV 1980) provides:

Except as provided m section 518 c f title 28. relating to litigation before the Supreme Court,

attorneys designated by the A uthority may appear for the A uthonty and represent the A uthority in 

any civil action brought in connection with any function carried out by the Authority pursuant to 

this title o r as otherwise authorized by law 

(Em phases added )

15 The Office o f Legal Counsel views “sue and be sued” language as merely designating the agency as a “jural 

entity” which may sue or be sued in its own nam e, and not as rem oving the agency’s representation from the dom ain 

of the Department of Justice pursuant to 28 U S C § § 5 1 6 and 519 See Meador, Draft M em orandum Re 

Government Relitigation Policies, supra, at 19, n 51. cuing an interview w ith H Miles Foy III, D epartm ent of 

Justice. Office of Legal Counsel

57
390 F.2d 323 (8th Cir. 1968). S ee generally Harmon, Office of Legal Counsel, 

M emorandum for the Associate Attorney General (Dec. 11, 1980); Meador, 

Office for Improvements in the Administration of Justice, Draft Memorandum 

(May 21,1979); Office of Legal C ounsel, Relationship of Proposed Amendments 

to the Administrative Procedure Act . . . to the Department of Justice Policy of 

Opposition to Litigation Power Outside of the Department (Apr. 29, 1974); 

M emorandum to the Attorney General from William D. Ruckelshaus, supra; but

see SEC v. R obert C ollier & C o ., 76 F.2d 939 (2d Cir. 1935).

Other language which does grant agency attorneys authority to litigate, but 

provides that such authority shall be exercised under the direction and control of 

the Attorney General, provides the framework for “Memoranda of Understanding” (MOUs) between the agencies and the Department of Justice, which 

apportion the litigation responsibilities between the Department and the agencies. See, e .g ., 29U .S .C . § 204(b) (Fair Labor Standards Act); the Age Discrimination Employment Act of 1967, Pub. L. No. 90-202, 81 Stat. 602.16 These 

memoranda usually specify both the categories of cases in which agency counsel 

may appear and the nature of the Attorney General’s continuing control and 

supervision over such cases. We believe that the sharing of litigation responsibilities under MOUs is proper, as long as the Attorney General retains ultimate 

authority over the litigation. Moveover, the rationale underlying these arrangements is an eminently sensible one. The efficiency and expertise objectives in 

government litigation are thereby maximized, without sacrificing the Attorney 

G eneral’s statutory role as chief government litigator, and the responsibilities and 

prerogatives which attach thereto.

Nevertheless, as a practical matter, MOUs do compromise the Attorney 

G eneral’s control, if not authority, over the conduct of agency litigation. Agencies eager to control their own litigation may proceed to negotiate settlement 

agreements, send out “no action” letters, depose witnesses, and otherwise 

represent the agency’s position to the public without consultation or assistance 

from the Attorney General, leaving the Attorney General with a fait accom pli and 

a potential equitable barrier to his subsequent assertion of control over the 

litigation.17 Such occurrences effectively undermine the Attorney General’s

16 29 U .S .C . § 204(b) perm its Departm ent o f Labor attorneys to “appear for and represent” the Administrators of 

the FLSA and ADEA “ in any litigation," but subjects all such litigation “to the direction and control of the Attorney 

G eneral ” The S ecretary o f L abor and the A ttorney G eneral have entered into a series of understandings which 

provide that D epartm ent o f L abor attorneys w ill ordinarily handle all appellate litigation pursuant to the Acts, but 

perm it the Attorney G eneral to take part in the conduct o f such cases as he deem s to be in the best interest o f the 

U nited States

17 We do not m ean to suggest that agencies acting beyond the scope of their litigating authority in settling claim s 

legally bind the U nited States, rather, we refer only to the confusion, ill will, and lack of confidence that would 

accrue to the agency in its public relations should the Attorney G eneral reverse the agency's actions, as well as the 

practical difficulties inherent in such a reversal See Dresser Indus., Inc v United States. 596 F.2d 1231, 1236 (5th 

Cir. 1979), cert, denied, 444 U S 1044 (1980):

It is well established that (he federal governm ent w ill not be bound by a contract or agreement 

entered into by one of its agents unless such agent is acting w ithin the limits o f his actual authority.

. . As the Suprem e C ourt staled in [Federal Crop Ins Corp v Merrill. 332 U .S. 380 (1947)]

W hatever the form in w hich the G overnm ent functions, anyone entering into an arrangem ent with 

the G overnm ent takes the risk of having accurately ascertained that he who purports to act for the 

G overnm ent stays w ithin the bounds o f his authority. T he scope of this authority may be exphctly 

defined by C ongress or be limited by delegated legislation, properly exercised through the rulem aking pow er A nd this is so even though . the agent him self may have been unaware of the 

lim itations upon his authority 332 U S at 384

58
ability to perform the dual litigating functions with which he is charged. Recognizing that the efficiency and expertise objectives in government litigation 

necessitate the sharing of litigation responsibilities in most cases, care should be 

taken to make explicit in these arrangements the Attorney General’s overriding 

authority in directing the litigation. While the Attorney General may delegate 

some litigating authority under the MOUs, he may not delegate the ultimate 

responsibility which is by law vested exclusively in the Attorney General. See

Harmon, Office of Legal Counsel, Memorandum for the Associate Attorney 

General (Dec. 11, 1980). Thus, the Attorney General should make clear to the 

client agency his willingness to support the Assistant Attorney General and line 

attorneys in the enforcement of his prerogatives under the M OU.18

IV. Settlement and Compromise Authority

Included within this broad grant of plenary power over government litigation is 

the power to compromise and settle litigation over which the Attorney General 

exercises supervisory authority. This power “to compromise any case over which 

he has jurisdiction upon such terms as he may deem fit” is “in part inherent in 

[the Attorney General’s] office and in part derived from statutes and decisions.” 

38 Op. A tt’y Gen. 124 (1934). This authority was the subject of President 

Roosevelt’s Executive Order No. 6166, (June 10, 1933), reprinted in 5 U .S.C . 

§ 901 note (1976), which provided that “. . . the function of decision whether 

. . . to compromise . . . appeal . . . [or] abandon prosecution or defense, now 

exercised by any agency or officer [of the United States], is transferred to the 

Department of Justice.” See infra at 7-8. With respect to the power to com promise, Attorney General Cummings observed that

it is a power, whether attaching to the office or conferred by statute 

or Executive order, to be exercised with wise discretion and 

resorted to only to promote the Government’s best interest or to 

prevent flagrant injustice, but that it is broad and plenary may be 

asserted with equal assurance, and it attaches, of course, immediately upon the receipt of a case in the Department of Justice, 

carrying with it both civil and criminal features, if both exist, and 

any other matter germane to the case which the Attorney General 

may find it necessary or proper to consider before he invokes the 

aid of the courts; nor does it end with the entry of judgm ent, but 

embraces execution (United States v. M orris, 10 Wheat. 246).

18 Additional litigating authority, independent of the Attorney G eneral, was granted to certain agencies by the 

Hobbs Act. 28 U S C §§ 2342, 2348 (1976 & Supp IV 1980). The Hobbs Act grants specified agencies authority 

to intervene in appellate proceedings “of their own motion and as of rig h t/' even though the Attorney G eneral “is 

responsible for and has control o f the interests o f the Government** in the proceedings N otw ithstanding the Attorney 

G eneral’s overall authority, he “may not dispose of or discontinue the proceeding” over the objection o f the 

intervening agency, and the agency “may prosecute, defend, or continue the proceeding unaffected by the action o r 

inaction of the A ttorney G eneral ”

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38 Op. A tt’y Gen. 98, 102 (1934).19 In these opinions, Attorney General 

Cummings concluded that the Attorney General’s authority to settle cases extended even beyond that which would have been available to the agency charged 

with administering the underlying law.20

Executive Order No. 6166, together with Sections 516 and 519 of Title 28 of 

the U.S. Code (and their predecessor provisions), have been interpreted consistently by the courts to vest the Attorney General with virtually absolute discretion 

to determine whether to compromise or abandon claims made in litigation on 

behalf of the United States. See N ew York v. N ew Jersey, 256 U.S. 296, 308 

(1921); U nited States v. N ewport N ew s Shipbuilding & D ry D ock C o., 571 F.2d 

1283 (4th Cir.), cert, denied, 439 U.S. 875 (1978); Smith v. United States, 375 

F.2d 243 (5th Cir.), cert, denied, 389 U.S. 841 (1967); H albach v. Markham,

106 F. Supp. 475, 479-81 (D.N.J. 1952), aff'd, 207 F.2d 503 (3d Cir. 1953). In 

deciding to settle or abandon a claim, or not to prosecute at all, the Attorney 

General is not restricted to considerations only of litigative probabilities, but 

rather may make a decision, in his discretion, on the basis of national policies 

espoused by the Executive. Smith v. United States, supra. The only limitations 

placed on the Attorney General’s settlement authority are those which pertain to 

his litigating authority generally— i.e., explicit statements by Congress circumscribing his settlement authority,21 see, e .g ., 8 U .S.C. § 1329 (1976) (prohibiting settlement of suits and proceedings brought under Title II of the Immigration 

Act without consent of the court in which the suit or proceeding is pending), and 

the duty imposed on the President by Article II, § 3 of the Constitution to “take 

Care that the Laws be faithfully executed. ...” See generally Office of Legal 

Counsel, M emorandum for Sanford Sagalkin (Sept. 4, 1980); Office of Legal 

Counsel, M emorandum to James W. Moorman (Oct. 30, 1979). To guide the 

Attorney General in the exercise o f his settlement discretion, the 1934 opinions of 

Attorney General Cummings proposed a “promote the Government’s best interest, or . . . prevent flagrant injustice” standard. See 38 Op. A tt’y Gen. at 102.

19 A s early as 1831, A ttorney General Taney observed that.

An attorney conducting a suit fo ra party has, in the absence of that party, a n ght to discontinue it 

w henever, in his ju d g m en t, the interest of his client requires it to be done If he abuses this power, 

he is liable to the client whom he injures.

An attorney o f the U nited States, except in so far as his powers may be restrained by particular 

acts o f C ongress, has the same authority and control over the suits which he is conducting The 

public interest and the principles of ju stice require that he should have this power . . [S]ince he 

cannot consult his client (the United Stales), the sanction o f the court is regarded as sufficient 

evidence that he exercised the power honestly and discretely

2 Op. A tt'y G en 4 8 2 ,4 8 6 -8 7 Attorney G eneral Cum m ings cited this opinion approvingly. 38 O p A u ’y G en at 

99

20 T he opinions found in 38 O p A tt’yGen a t9 4 ,9 8 ,1 2 4 d is c u s s th e Attorney G eneral’s authority to com prom ise 

incom e tax cases in the absence of bona fide disputed questions of fact Attorney General Cum m ings concluded that 

he did possess the authority to settle such cases, even though the Secretary had no statutory authority to com prom ise 

incom e tax cases in those circumstances

21 With respect to actions brought under the Federal Tort C laim s A ct, 28 U .S C §§ 2671-2680 (1976), for 

exam ple, the A ttorney G eneral o r his designee now has the authority to arbitrate, com prom ise, o r settle claim s 

brought under the Act after January 17, 1967, 28 U .S .C § 2677 (1976); pnO T to the 1966 am endm ents, court 

approval was required before the Attorney G eneral was perm itted to effect a settlem ent Congress also prescribed a 

procedure in the 1966 am endm ents which granted agencies authority to settle claim s under $25,000 without prior 

w ritten approval by the Attorney General of that specific settlem ent arrangem ent, as long as the arrangem ent was 

m ade in accordance w ith general regulations prescribed by the Attorney G eneral 28 U S C . § 2672 (1976)

60
V. Litigation in International Courts

Similarly, the Attorney General’s authority over litigation involving the Unitec 

States before the International Court of Justice (ICJ) is plenary. Although the 

Attorney General’s supervisory authority has been challenged only once since the 

1966 codification of the broad grant of authority contained in 28 U .S.C. § § 5 1 6 

and 519, that challenge was resolved by reference to the broad scope of the 

statutory provisions as well as Department of Justice regulations contained in 

Title 28 of the Code of Federal Regulations.

In the connection with the litigation between the United States and Iran in 

1980, a dispute arose between the Department of State and the Department of 

Justice concerning the Attorney General’s authority to represent the United States 

before the ICJ. The Legal Adviser expressed the view that the State Department, 

by virtue of its premier role in United States foreign policy and international 

relations, had been historically charged with the responsibility for international 

affairs involving the United States, including legal matters. In response, Attorney General Civiletti cited the unambiguous language of §§ 516 and 519, and 

noted the absence of both statutory law and formal opinions which would 

“otherwise authorize” the Department of State to conduct litigation independent 

of the Attorney General’s supervision. Attorney General’s letter to the Legal 

Adviser, Department of State (Apr. 21, 1980).22 In addition, 28 C.F.R. § 0.46

(1980)2-1 makes clear that the Attorney General’s litigation authority is not limited 

to domestic matters, but rather includes litigation “in foreign courts, special 

proceedings, and similar civil matters not otherwise assigned.” See generally D. 

Deener, The United States Attorneys General and International Law (1957).24

VI. Conclusion

In short, the Attorney General, as the chief litigation officer for the United 

States, has broad plenary authority over all litigation in which the United States,

22 At President C arter s request. A ttorney General Civiletti personally conducted the Iran litigation before the ICJ, 

assisted by the Legal Adviser to the State D epartm ent, whom the Attorney G eneral com m issioned as a “Special 

A ssistant,” pursuant to 28 U S.C . § 515

21 28 C F R § 0 46 (1980) provides*

The A ssistant Attorney G eneral in charge of the Civil Division shall, in addition to litigation 

com ing within the scope of § 0 .4 5 , direct all other civil litigation including claim s by or against the 

United States, its agencies o r officers, in dom estic or foreign courts, special proceedings, and 

sim ilar civil matters not otherw ise assigned, and shall em ploy foreign counsel to represent before 

foreign crim inal courts, com m issions o r adm inistrative agencies officials o f the D epartm ent of 

Justice and all other law enforcem ent officers o f the United States who are charged with violations 

of foreign law as a result o f acts which they perform ed in the course and scope of theirG ovem m ent 

service

24 D eener discusses the historical role of the Attorney G eneral in providing legal advice on questions of 

international law and concludes*

The Judiciary Act of 1789 did not specifically charge the Attorney G eneral with the duty of 

giving legal advice on questions of international law On the other hand, the act did not restrict the 

“questions of law” that could be referred to the Attorney General to those involving domestic 

matters only Actually, alm ost from the very beginning, the President and the departm ent heads 

subm itted questions involving the law of nations to the chief law officer, and succeeding Presidents 

and cabinet officers have continued to subm it such questions as a m atter of established practice 

C ongress apparently recognized this practical interpretation o f the statutes defining the Attorney 

G eneral's duties At any rate. Congress has never deemed it necessary to change the statutes in this 

respect.

Deener, supra, at 1 0 -1 1 (footnotes om itted)

61
or its federal agencies or departments, are involved. This authority is wideranging, embracing all aspects of litigation, including subpoena enforcement, settlement authority, and prosecutorial discretion. The reservation of these powers to 

the Attorney General is grounded in our common law tradition, Acts of Congress 

(principally, 5 U .S.C . § 3106, and 28 U .S.C . §§ 516 and 519), various executive orders, and a long line of Supreme Court precedent. These powers can be 

eroded only by other Acts of Congress, and the Executive’s constitutional 

command to faithfully execute the laws.

Implicit in this broad grant o f authority is the recognition that the Attorney 

General must serve the interests of the “client” agency as well as the broader 

interests of the United States as a whole in carrying out his professional duties. 

The Attorney General is obligated to administer and enforce the Constitution of 

the United States and the will of Congress as expressed in the public laws, as well 

as the more “private” legal interests of the “client” agency. It is because of this 

diversity of functions that situations may arise where the Attorney General is 

faced with conflicting demands, e .g ., where a “client” agency desires to circumvent the law, or dissociate itself from legal or policy judgments to which the 

Executive subscribes; where a “client” agency attempts to litigate against another 

agency or departm ent of the federal government; or where a “client” agency 

desires a legal result that will benefit the narrow area of law administered by the 

agency, without regard to the broader interests of the United States government as 

a whole. In such cases, the Attorney G eneral’s obligation to represent and 

advocate the “client” agency’s position must yield to a higher obligation to take 

care that the laws be executed faithfully. In every case, the Attorney General must 

satisfy him self that this constitutional duty, delegated from the Executive, has not 

been compromised in any way, and that the legal positions advocated by him do 

not adversely affect the interests of the United States.

T h e o d o r e B . O l s o n

Assistant Attorney G eneral

Office c f Legal Counsel

62