Representation of White House Employees

[The follow ing m em orandum opinion discusses the propriety, u nder applicable law s and 

regulations, o f providing legal representation at governm ent expense to W hite H ouse 

em ployees in connection w ith pending investigations by the Justice D e p artm en t’s 

O ffice o f Professional R esponsibility and the Senate Judiciary C om m ittee. Its co n clu ­

sions are sum m arized in its second paragraph.]

August 27, 1980

MEMORANDUM OPINION FOR 

THE COUNSEL TO THE PRESIDENT

This responds to the request from the Deputy Counsel to the President for our views concerning the propriety of providing legal representation 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 President’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. Accordingly, 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 accepting 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 investigation. 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 private attorney retained at government expense may represent 

the personal interests of White House employees in connection 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 governmental interests in connection with the questioning of White 

House employees by the Senate Committee. A government 

attorney may be “detailed” from an agency which otherwise 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 Committee.

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 activities 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 governmental 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, presumably 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 We recognize that it will be necessary for some W hite House employees to spend considerable 

time gathering and assembling materials in response to the O PR and Senate inquiries. We view this as

Continued

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Donation of 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 acceptance 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 regulated 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 impropriety (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 governmental interests and personal interests, concluding that expenditures 

were only authorized to the extent that they serve governmental interests. 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 performed by governm ent employees, be they lawyers 

or non-lawyers. How ever, your inquiry seems to be directed at the more traditional role o f lawyers as 

personal representatives and advocates for a particular client. It is this latter role that we will address 

in this memorandum.

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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 Comptroller 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 counsel may not be considered a proper expenditure of appropriated 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 determine 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 employees were ultimately vindicated does not change the character of the proceeding.

2 A nother explicit prerequisite set by the C om ptroller G eneral in this opinion was that the Administrative Office o f the U.S. C ourts "advise fully the appropriate legislative and appropriations com m ittees o f the Congress o f your plans and the estimated cost thereof." 53 Comp. Gen. at 306.

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58 Comp. Gen. at 618. Read together, the Comptroller General’s decisions 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 considerations would preclude providing representation for employees in connection 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 represent 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 distinction 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 employees 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 We have not precluded the possibility o f counsel to represent direct governm ental interests which 

may arise in connection with the O PR investigation. If such governm ental interests arise, they may be 

represented. We have described this possibility and the mechanics o f such representation in connection 

with the congressional inquiry.

• N o t e : The Justice D epartm ent Representation Guidelines referred to in the text w ere published in 

the Code o f Federal Regulations 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 employee to perform this function, since the 1980 White House appropriation 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 he attached D epartm ent o f Justice Representation Guidelines do appear to contem plate cases in 

which it would be proper for this D epartm ent to provide representation to employees called before 

congressional committees “in their individual capacities.” See 28 C.F.R. § 50.15(a) (1982). Heretofore, 

this section has become operable when a present or form er federal employee has been a defendant in a 

private civil suit and has simultaneously been called as a witness before a congressional committee. In 

such a case, the retention o f counsel may be necessary to protect the em ployee from providing 

testimony that would unnecessarily com prom ise the defense o f the civil case.

* Technically, representation o f this limited nature might be provided by this D epartm ent, but in 

light of the potential for conflicts—or at least the appearance thereof—we doubt that such representation 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.

J o h n M. H a r m o n

Assistant Attorney General

Office of Legal Counsel

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