Whether Agents of the Department of Justice Office of

Inspector General are “Investigative or Law Enforcement

Officers” Within the Meaning of 18 U.S.C. § 2510(7)

A g en ts o f the D ep artm en t o f Ju stic e O ffice o f In sp ecto r G eneral are “in v estig ativ e o ffic e rs” 

w ith in the m eaning o f 18 U .S .C . § 2 510(7) and as such m ay be a u th o riz e d to a p p ly fo r and 

c o n d u ct co u rt-a u th o rize d ele ctro n ic surveillance regarding m atters w ith in th at O ffic e 's in v e stigative ju risd ictio n .

May 29, 1990

L e t t e r O p i n i o n f o r t h e A s s o c i a t e U n i t e d S t a t e s A t t o r n e y

S o u t h e r n D i s t r i c t o f N e w Y o r k

This responds to your request for our opinion as to whether agents of the 

Department of Justice Inspector General (“DOJ/OIG”) can be considered 

“[i]nvestigative or law enforcement officer[s]” within the meaning of 18 

U.S.C. § 2510(7).' We have concluded that the DOJ/OIG falls within that 

statutory definition.

Your request arises from an application to the Criminal Division for courtauthorized electronic surveillance pursuant to title III of the Omnibus Crime 

Control and Safe Streets Act (“OCCSSA”), Pub. L. No. 90-351, tit. Ill, § 

802, 82 Stat. 197, 212 (1968) (codified at 18 U.S.C. §§ 2510-2520). During 

the drafting of that application, you considered the question whether agents 

of the DOJ/OIG were authorized to act as “[investigative or law enforcement officer[s]” who are permitted by OCCSSA to listen to intercepted 

communications. Because the question is one of first impression and involves the intersection of the OCCSSA and the Inspector General Act, the 

Office of Enforcement Operations of the Criminal Division recommended 

that you seek our advice.

Title III of OCCSSA was intended to “provide law enforcement officials 

with some of the tools thought necessary to combat crime without unnecessarily infringing upon the right of individual privacy.”2 In general, the statute 

prohibits surveillance of wire and oral communications without the consent

1 See L etter for W illiam P. Barr, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from Louis J. 

F reeh, A ssociate United States Attorney, Southern D istrict o f New York (Apr. 23, 1990).

2 Scott v. United States, 436 U.S. 128, 130(1978).

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of at least one party to the communication, but creates certain specific exceptions for law enforcement purposes, subject to procedural and substantive 

requirements.3 Most relevantly, section 2516 provides for interception of 

wire, oral, or electronic communications for law enforcement purposes pursuant to a court order based upon a showing and finding of probable cause. 

Under subsection 2516(1), the Attorney General and certain other officers 

within the Department of Justice may authorize the making of an application 

to a federal judge for an order “authorizing . . . the interception of wire or 

oral communications by the Federal Bureau of Investigation, or a Federal 

agency having responsibility for the investigation of the offense as to which 

the application is made,” if the underlying offense falls within one of several 

categories of federal crimes enumerated in section 2516. Under section 

2518, each such application for a court order must be made in writing and 

include such information as “the identity of the investigative or law enforcement officer making the application.” If the application is approved, the 

identified officer may listen to the intercepted communication. Id. § 2518(3)-(5).4

Subsection 2510(7), in turn, defines “[ijnvestigative or law enforcement 

officer” to mean

any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct 

investigations of or to make arrests for offenses enumerated in 

this chapter, and any attorney authorized by law to prosecute 

or participate in the prosecution of such offenses.

Because the definition is phrased throughout in the disjunctive — investigative or law enforcement officer, empowered to conduct investigations or to 

make arrests — it seems plain that Congress intended the term “investigative 

officers” to be broad enough to include officials who participate in investigations but do not have arrest authority. Moreover, the only discussion in the 

legislative history of the term “investigative officers” indicates that the term 

encompasses all officers who carry out any law enforcement duties relating 

to offenses enumerated in section 2516:

Paragraph (7) defines “investigative or law enforcement officer” to include any Federal, State, or local law enforcement 

officer empowered to make investigations o f or to make ar5 See S. R ep. N o. 1097, 90th Cong., 2 d Sess. 27-28 (1968).

'M o re o v e r, investigative o r law enforcem ent officers, if authorized to intercept com m unications, may 

disclose the contents o f the com m unications to other investigative or law enforcem ent officers, m ay use 

those contents to the extent that such use is appropriate to the proper perform ance o f their official 

duties, m ay in suitable circum stances g iv e testim ony concerning those contents, and m ay disclose and 

use intercepted com m unications relating to offenses other than those specified in the court order if the 

form er are obtained in the course of a court-authorized interception. Id. § 2517( 1 )-(3), (5). Further, 

investigative or law enforcem ent officers specially designated by an appropriate prosecutor may intercep t w ire or oral com m unications on an em ergency basis, subject to later judicial review. Id. § 2518(7).

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rests for any of the offenses enumerated in the proposed legislation. It would include law enforcement personnel carrying

out law enforcement purposes.

S. Rep. No. 1097, 90th Cong., 2d Sess. 91 (1968) (emphasis added).

Moreover, case law also interprets the term “investigative officer[s]” 

broadly to include all law enforcement officials involved in the investigation 

of the enumerated offenses, even if they lack the authority to make arrests.5 

Finally, this Office has previously opined that in light of the use of “the 

broad term ‘investigatory’ [sic],” FBI support personnel qualify as “investigative officers” within the meaning of section 2510(7).6

We believe DOJ/OIG agents qualify as “investigative officer[s]” under 

section 2510(7) as construed above, because these agents may make investigations of offenses enumerated in section 2516. Each Inspector General has 

the duty and responsibility to “provide policy direction for and to conduct, 

supervise, and coordinate audits and investigations” relating to the programs 

and operations “of [the] establishment” in which he functions. 5 U.S.C. 

app. 3, § 4(a)(1).7 An Inspector General must also “conduct, supervise, or 

coordinate other activities carried out or financed by such establishment for 

the purpose of . . . preventing and detecting fraud and abuse in, its programs 

and operations.” Id. § 4(a)(3). Inspector Generals also have responsibility 

“with respect to (A)... the prevention and detection of fraud and abuse in . . . 

programs and operations administered or financed by such establishment, [and] 

(B) the identification and prosecution o f participants in such fraud or abuse.”

Id. § 4(a)(4) (emphasis added). These responsibilities require an Inspector 

General to “report expeditiously to the Attorney General whenever the Inspector General has reasonable grounds to believe there has been a violation 

of Federal criminal law.” Id. § 4(d).8 Thus, the Inspector General Act entrusts the DOJ/OIG with investigative, auditing and other responsibilities

’ See United State v. Feekes, 879 F.2d 1562, 1565-66 (7th Cir. 1989) (prison investigator w ithin section 

2510(7)); In re Grand Jury Proceedings, 841 F.2d 1048, 1054 (1 1th Cir. 1988) (H ouse of R epresentatives 

C om m ittee in im peachm ent proceeding against federal judge is an “ investigative officer” w ithin section 

2510(7)); United States v. Clark, 651 F. Supp. 76, 79 (M .D. Pa. 1986), aff'd, 857 F.2d 1464 (3d Cir. 

1988), cert, denied, 49 0 U.S. 1073 (1989) (“W hile prison em ployees m ay not be ‘the FB I or others 

norm ally recognized as law enforcem ent officers,’ . . . [they] fall w ithin the category o f investigative 

officers . . . ."); Crooker v. Department o f Justice, 497 F. Supp. 500, 503 (D. Conn. 1980) (prison 

officials, even though lacking arrest authority for any of the offenses enum erated in section 2516(a), 

w ere investigators under section 2510(7)).

‘ M em orandum for W illiam H. W ebster, Director, Federal B ureau of Investigation, from T heodore B. 

O lson, A ssistant A ttorney G eneral, Office o f Legal Counsel, Re- Use o f FBI Support Personnel to

Monitor Title III Surveillance at 20 (Oct. 31, 1984).

’ A lthough the Inspector General A ct originally did not provide for an Inspector G eneral w ithin the 

D epartm ent o f Justice, a 1988 am endm ent to the Inspector G eneral Act created the D O J/O IG . See Pub. 

L. N o 100-504, 102 Stat. 2515, 2520-21 (1988).

8 T he provisions relating specifically to the DOJ/O IG state that the Inspector G eneral “shall be under 

the authority, direction, and control o f the Attorney General with respect to audits or investigations, or 

the issuance o f subpoenas, which require access o f sensitive inform ation" concerning specified areas o f 

law enforcem ent. 5 U S C. app. 3, § 8D (a)(l).

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relevant to the detection and prosecution of fraud and abuse within Justice 

Department programs or operations.9

In particular, we believe that the DOJ/OIG’s investigative jurisdiction carries with it the power to investigate offenses enumerated in section 2516, 

should the DOJ/OIG discover evidence that Justice Department personnel, 

contractors or grantees are engaging in such offenses in connection with the 

Department’s programs or operations. Among these offenses may be, for example, bribery of public officials and witnesses (18 U.S.C. § 201), influencing 

or injuring an officer, juror, or witness (id. §§ 1503, 1512, 1513), obstruction of 

criminal investigations (id. § 1510), wire fraud (id. § 1343), mail fraud (id. § 

1341), and dealing in illegal drugs. See id. §§ 2516(l)(c), (e).

Accordingly, we conclude that DOJ/OIG agents (including special agents, 

auditors and investigators) are investigative officers within the meaning of 

18 U.S.C. § 2510(7), and as such may be authorized by the appropriate 

officials within this Department to apply for and to conduct court-authorized 

electronic surveillance with regard to matters within the DOJ/OIG’s investigative jurisdiction.

JOHN O. McGINNIS 

Deputy Assistant Attorney General

Office o f Legal Counsel

’ Indeed, this O ffice has stated that it had “no doubt that the [L abor D epartm ent] Inspector G eneral has 

crim inal investigative authority .. . within the scope o f his statutorily-granted investigative authority.” 

Inspector General Authority to Conduct Regulatory Investigations, 13 Op. O.L.C . 54, 58 n.7 (1989).