September 27, 1979

79-72 MEMORANDUM OPINION FOR THE

ASSISTANT ATTORNEY GENERAL CRIMINAL

DIVISION

Attorney General—Delegation of Authority—

18 U.S.C. § 2516

This responds to your request for our opinion whether Attorney 

General Order No. 799-78, signed by former Attorney General Bell on 

August 15, 1978, and left intact by Attorney General Civiletti, continues in 

force. The order specially designates—

the Assistant Attomey[s] General in charge of the Criminal Division * * * the Tax Division, and * * * the Office of Legal 

Counsel [severally] to exercise the power conferred by Section 

2516 of Title 18, United States Code, to authorize applications to 

a Federal judge of competent jurisdiction for orders authorizing 

the interception of wire or oral communications by [Federal investigative agencies] * * * .

For the reasons set forth below, it is our opinion that the order remains 

valid despite the resignation of Mr. Bell.

The relevant language appears at the beginning of § 2516 as follows:

(1) The Attorney General, or any Assistant Attorney General 

specially designated by the Attorney General, may authorize an application to a Federal judge of competent 

jurisdiction * '* * .

This language cannot reasonably be construed to limit the life of a 

designation to the period of incumbency of the Attorney General who 

made it. Moreover, the legislative history of Pub. L. No. 90-351, Title III, 

82 Stat. 197, 211, approved June 19, 1968, by which § 2516 was enacted, 

reveals nothing to indicate that Congress considered this point. Thus, 

§2516, standing alone, does not compel Attorney General Civiletti, who 

is satisfied with the designations of his predecessor in office, to issue an 

order of his own to preserve them. Nor can such a requirement be found in 

administrative custom or judicial precedent. To the contrary, both confirm that lawful delegations of authority survive the particular officer 

making the delegation.

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It is axiomatic that in the absence of a limiting provision of law or a limiting provision within the delegation itself, a valid delegation of authority or 

other rule or regulation continues in force until revoked by someone with 

authority to revoke it, and accordingly continues without regard to the 

departures from office of its originator and intervening successors.'

The reason for adherence to the principle was well stated in a case involving this Department and presenting essentially the same question you 

have posed, United States v. Morton Salt Co. et al., 216 F. Supp. 250, 

255-256 (D.C. Minn. 1962), aff’d, 382 U.S. 44 (1965). There the Acting 

Deputy Attorney General, who, on January 5, 1961, gave departmental attorneys an authorization to appear before a grand jury, was replaced by an 

incoming Deputy Attorney General on January 21, 1961. The authorization of January 5 was not filed with the grand jury until February 20, 

1961. The defendants asserted that it was ineffective because the person 

who issued it was no longer in office on February 20. The District Court 

responded as follows:

This contention is clearly untenable in that it is the authority 

from the duly designated official in the office of the Attorney 

General which the statute requires, and if that individual thereafter resigns, dies, or is otherwise separated from his office, the 

authority to act under the authorization is not terminated. In 

other words, when a designated official acts within the scope of 

his authority, the authorization must continue until it is revoked 

or is otherwise terminated. If this were not true, a change of administration or resignation from office by the official who acted 

within his authority when the designation was made would create 

a chaotic condition in the administration of the affairs of the 

Department of Justice.

In re Weir, 520 F. (2d) 662 (C.A. 9th Cir. 1975), produced a similar pronouncement concerning a grant of immunity under 18 U.S.C. § 6003(a) 

that a District Court had issued a grand juiy witness on November 1, 1973, 

after the Attorney General had authorized it. Following the refusal of the 

witness to testify at proceedings ensuing from that event, he refused on 

February 25, 1975, to testify before a new grand jury, contending that the 

Government should have been required to show that the Department of 

Justice had again reviewed the matter of the immunity grant. The court 

held that such action by the Department, which was no longer headed by 

the Attorney General who had authorized the immunity grant, was not 

necessary, stating, id., at p. 667:

The rules and orders of an Attorney General continue to govern 

the Department o f Justice (notwithstanding the advent of new 

Attorneys General) until they are changed or altered. This is the 

customary way in which administrative agencies operate.

'Perhaps the best evidence o f the acceptance of this truism o f administration is the absence 

from the Federal Register o f the myriad of agency orders and notices proclaiming the continuity o f procedures, delegations o f authority, etc., that would be occasioned by a contrary 

rule.

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Finally, it is pertinent to mention that, while your question was not explicitly in issue in United States v. Nixon, 413 U.S. 683 (1974), the case involving the validity of the Watergate Special Prosecutor’s subpoena duces

tecum of White House tapes and documents, the Court obliquely passed 

on it. In the course of discussing the provisions of the charter given the 

Special Prosecutor by Acting Attorney General Bork on November 2, 

1973, 38 F.R. 30739, as amended on November 19, 1973, 38 F.R. 32805, 

the Court said, “ So long as this regulation is extant it has the force of 

law.” 418 U.S., at 695. Since the Special Prosecutor’s subpoena was 

served on April 27, 1974, and Attorney General Saxbe, who took over 

from the Acting Attorney General on January 4, 1974, did not reissue or 

amend the charter, the quoted sentence evidences the Court’s understanding that the change in office had no effect on its validity.

Administrative practice and judicial expressions are but a reflection of 

common sense and compel our conclusion that former Attorney General 

Bell’s Order No. 799-78 making designations under 18 U.S.C. § 2516 remains in effect.

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

Assistant Attorney General

Office o f Legal Counsel

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