b'(Slip Opinion)\n\nReimbursing the Attorney\xe2\x80\x99s Fees of Current and\nFormer Federal Employees Interviewed as\nWitnesses in the Mueller Investigation\nThe Department of Justice Representation Guidelines authorize, on a case-by-case basis,\nthe reimbursement of attorney\xe2\x80\x99s fees incurred by a current or former federal government employee interviewed as a witness in the Mueller Investigation under threat of\nsubpoena about information the person acquired in the course of his government duties.\nOctober 7, 2020\n\nMEMORANDUM OPINION FOR THE\nACTING ASSISTANT ATTORNEY GENERAL\nCIVIL DIVISION\nYou have asked for our opinion on the scope of the Attorney General\xe2\x80\x99s\nauthority to reimburse the attorney\xe2\x80\x99s fees of federal employees who were\ninterviewed as witnesses in connection with the investigation by Special\nCounsel Robert S. Mueller, III into possible Russian interference in the\n2016 presidential election (\xe2\x80\x9cMueller Investigation\xe2\x80\x9d). The Civil Division\nreviews requests for such reimbursement under long-standing Department\nof Justice (\xe2\x80\x9cDepartment\xe2\x80\x9d) regulations. See 28 C.F.R. \xc2\xa7\xc2\xa7 50.15\xe2\x80\x9350.16. You\nhave asked specifically how certain elements of section 50.15 apply to the\nMueller Investigation: (1) whether a person interviewed as a witness in\nthe Mueller Investigation under threat of subpoena should be viewed as\nhaving been \xe2\x80\x9csubpoenaed,\xe2\x80\x9d id. \xc2\xa7 50.15(a); (2) whether a witness interviewed about information acquired in the course of the witness\xe2\x80\x99s federal\nemployment appears in an \xe2\x80\x9cindividual capacity,\xe2\x80\x9d id.; and (3) what factors\nshould be considered in evaluating whether the reimbursement of the\nattorney\xe2\x80\x99s fees of such a witness is \xe2\x80\x9cin the interest of the United States,\xe2\x80\x9d\nid. \xc2\xa7 50.15(a)(4).\nWe conclude that, under the regulation, the Attorney General or his designee may authorize the reimbursement of attorney\xe2\x80\x99s fees incurred by\ncurrent and former federal employees interviewed during the Mueller\nInvestigation under threat of subpoena concerning information obtained\nduring the course of performing their federal duties. We also conclude\nthat such witnesses generally appear in their individual, not official,\ncapacity. These conclusions are consistent with how the Department has\n1\n\n\x0c44 Op. O.L.C. __ (Oct. 7, 2020)\n\ntreated requests for attorney\xe2\x80\x99s fees under the now-lapsed Independent\nCounsel statute, which was the model for the Special Counsel regulations.\nSee Memorandum for Dick Thornburgh, Attorney General, from William\nP. Barr, Assistant Attorney General, Office of Legal Counsel, Re: Reimbursement of Attorney Fees for Private Counsel Representing Former\nGovernment Officials in Federal Criminal Proceedings at 9 (Oct. 18,\n1989) (\xe2\x80\x9cBarr Memorandum\xe2\x80\x9d). When the Department last addressed a\nsimilar question, then-Deputy Attorney General Eric Holder determined\nthat \xe2\x80\x9cfor purposes of analyzing representation and reimbursement requests\xe2\x80\x9d a Special Counsel investigation is \xe2\x80\x9cclosely analogous\xe2\x80\x9d to an\nIndependent Counsel investigation and should \xe2\x80\x9cbe treated\xe2\x80\x9d as such. Memorandum for the Deputy Attorney General from Robin E. Jacobsohn,\nDeputy Assistant Attorney General, Civil Division, Re: Retroactive Reimbursement of Private Counsel Fees in Connection with Federal Criminal\nProceedings at 4 n.3 (Dec. 8, 2000) (\xe2\x80\x9cHolder Memorandum\xe2\x80\x9d) (approved\nby the Deputy Attorney General). We agree with that conclusion and\nbelieve that it should apply to the Mueller Investigation as well.\nAs we explain below, it will often be in the interest of the United States\nto provide reimbursement of such attorney\xe2\x80\x99s fees, at least for any person\nwho was a mere witness and not a subject or target of the investigation. 1\nThe Mueller Investigation, like the Independent Counsel investigations on\nwhich the Special Counsel regulation was modeled, operated in a politicized, publicized, and highly contentious environment, and addressed the\nactions of a number of senior government officials, including the President. Such investigations often require current and former federal employees to incur substantial attorney\xe2\x80\x99s fees simply because they witnessed\nsensitive government deliberations in the course of doing their jobs.\nAbsent reimbursement, the prospect of incurring such fees would deter\nindividuals from serving in key government positions and from perform1 While we understand that a number of current and former federal employees interviewed by the Special Counsel are expected to make requests for reimbursement of\nattorney\xe2\x80\x99s fees, we are informed that to date the Department has received only one such\nformal request. See Letter for Scott Schools, Associate Deputy Attorney General, from\nDana J. Boente, Acting Assistant Attorney General, National Security Division at 1\n(Jan. 2, 2018). We understand that the Civil Division has deferred consideration of\nwhether Mr. Boente should be reimbursed for attorney\xe2\x80\x99s fees until he resubmits his\nrequest in light of the fact that the Mueller Investigation has concluded.\n\n2\n\n\x0cReimbursing the Attorney\xe2\x80\x99s Fees of Witnesses in the Mueller Investigation\n\ning their duties. Reimbursing the attorney\xe2\x80\x99s fees of these witnesses therefore would generally be in the interest of the United States, at least for\nwitnesses who were not a subject or a target of the investigation.\nI.\nThe Attorney General has promulgated regulations providing for the\nappointment of a Special Counsel, who may be tasked with undertaking\nparticularly sensitive investigations of high-ranking Executive Branch\nofficials. See 28 C.F.R. pt. 600; see also Office of Special Counsel, 64\nFed. Reg. 37,038 (July 9, 1999). Those regulations were intended to\nreplace authorities under the lapsed Independent Counsel statute. See\nEthics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824\n(codified as amended at 28 U.S.C. \xc2\xa7\xc2\xa7 591\xe2\x80\x93599); see also Independent\nCounsel Reauthorization Act of 1994, Pub. L. No. 103-270, 108 Stat. 732\n(1994) (extending authorities through 1999); see generally Morrison v.\nOlson, 487 U.S. 654 (1988). Like an Independent Counsel, a Special\nCounsel exercises federal prosecutorial power with a degree of autonomy;\nalthough a Special Counsel is subject to the supervision of the Attorney\nGeneral, a regulation makes him removable only for cause. Compare 28\nU.S.C. \xc2\xa7 596(a)(1), with 28 C.F.R. \xc2\xa7\xc2\xa7 600.6, 600.7(b), (d).\nOn May 17, 2017, Acting Attorney General Rod J. Rosenstein appointed Robert S. Mueller, III to serve as Special Counsel to investigate \xe2\x80\x9cany\nlinks and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,\xe2\x80\x9d and related\nmatters. Att\xe2\x80\x99y Gen. Order No. 3915-2017 (May 17, 2017). In addition to\nthe principal subject of the investigation, the Special Counsel also investigated whether the President had obstructed justice in connection with\nRussia-related investigations. See 2 Report on the Investigation into\nRussian Interference in the 2016 Presidential Election 1 (Mar. 2019)\n(\xe2\x80\x9cMueller Report\xe2\x80\x9d), https://www.justice.gov/storage/report.pdf.\nThe Special Counsel\xe2\x80\x99s Office was well-resourced and its probe wideranging. The Special Counsel \xe2\x80\x9cassembled a team that at its high point\nincluded 19 attorneys\xe2\x80\x9d; \xe2\x80\x9cthree paralegals\xe2\x80\x9d; and \xe2\x80\x9can administrative staff of\nnine.\xe2\x80\x9d 1 Mueller Report at 13. These individuals \xe2\x80\x9cwere co-located with\nand worked alongside\xe2\x80\x9d approximately 40 agents of the Federal Bureau of\nInvestigation (\xe2\x80\x9cFBI\xe2\x80\x9d), as well as intelligence analysts, forensic account3\n\n\x0c44 Op. O.L.C. __ (Oct. 7, 2020)\n\nants, a paralegal, and professional staff assigned by the FBI to assist the\nSpecial Counsel\xe2\x80\x99s investigation. Id. During the investigation, the Special\nCounsel \xe2\x80\x9cissued more than 2,800 subpoenas under the auspices of a\ngrand jury sitting in the District of Columbia; executed nearly 500\nsearch-and-seizure warrants; obtained more than 230 orders for communication records . . . ; obtained almost 50 orders authorizing use of pen\nregisters; made 13 requests to foreign governments pursuant to Mutual\nLegal Assistance Treaties; and interviewed approximately 500 witnesses,\nincluding almost 80 before a grand jury.\xe2\x80\x9d Id. As of May 2019, when the\nSpecial Counsel resigned, the Special Counsel\xe2\x80\x99s Office had spent about\n$16 million on the investigation, and other components of the Department had contributed another $15.5 million in support. U.S. Dep\xe2\x80\x99t of\nJustice, Special Counsel Office\xe2\x80\x99s Statement of Expenditures, May 17,\n2017 Through February 25, 2020, at 2\xe2\x80\x933 (undated), https://www.justice.\ngov/sco/page/file/1266756/download.\nThe Special Counsel\xe2\x80\x99s investigation of obstruction of justice devoted\nsubstantial resources to interviewing federal employees, including many\nin the White House and some from the Department, concerning their\nconversations with the President and senior White House staff. The Special Counsel investigated, for example, the President\xe2\x80\x99s dealings with\nJames Comey, the former Director of the FBI, including the President\xe2\x80\x99s\nresponse to Comey\xe2\x80\x99s March 20, 2017, congressional testimony, and the\ndecision to terminate him. See 2 Mueller Report at 38\xe2\x80\x9341, 52\xe2\x80\x9377. The\nSpecial Counsel also probed the President\xe2\x80\x99s subsequent deliberations\nconcerning the Special Counsel investigation and the recusal of Attorney\nGeneral Jefferson B. Sessions III with respect to that investigation. Id. at\n63\xe2\x80\x9396, 107\xe2\x80\x9311. All of these inquiries, and many others, entailed interviews with numerous current and former government employees concerning knowledge acquired in the course of their official duties. All told, we\nunderstand that the Special Counsel interviewed at least 40 current and\nformer government employees, including many who worked in senior\npositions at the White House and the Department. With the exception of\nformer National Security Advisor Michael Flynn, none of those employees was charged with any criminal offense.\nIn March 2019, the Special Counsel concluded his investigation and\nsubmitted to Attorney General William P. Barr the confidential, twovolume Mueller Report summarizing his conclusions, charging decisions,\n4\n\n\x0cReimbursing the Attorney\xe2\x80\x99s Fees of Witnesses in the Mueller Investigation\n\nand the evidence the investigation had produced. See 28 C.F.R. \xc2\xa7 600.8(c)\n(\xe2\x80\x9cAt the conclusion of the Special Counsel\xe2\x80\x99s work, he or she shall provide\nthe Attorney General with a confidential report explaining the prosecution\nor declination decisions reached by the Special Counsel.\xe2\x80\x9d). We understand that you expect several current and former government employees\ninterviewed in connection with the Mueller Investigation to seek reimbursement of attorney\xe2\x80\x99s fees they incurred in connection with those interviews. See supra note 1.\nII.\nCongress has authorized the Attorney General to dispatch \xe2\x80\x9c[t]he Solicitor General, or any officer of the Department of Justice, . . . to attend to\nthe interests of the United States\xe2\x80\x9d in any federal or state proceeding. 28\nU.S.C. \xc2\xa7 517. The Department provides representation automatically for\nfederal employees who are subject to legal process in their official capacities\xe2\x80\x94that is, when the government itself is the real party in interest, in the\nsense that court-ordered relief would be paid from the Treasury of the\nUnited States or direct federal employees in the performance of their\nofficial duties. See Memorandum for the Deputy Attorney General from\nTheodore B. Olson, Assistant Attorney General, Office of Legal Counsel,\nRe: Reimbursement of Anne M. Burford for Private Counsel Fees at 3 n.3\n(May 3, 1983) (\xe2\x80\x9cOlson Memorandum\xe2\x80\x9d); see also Graham v. Kentucky,\n473 U.S. 159, 165\xe2\x80\x9366 (1985).\nThe Attorney General\xe2\x80\x99s authority also includes the power \xe2\x80\x9cto represent\nthe personal interests of [federal] officers and employees who are sued in\ntheir personal capacities\xe2\x80\x9d where such interests \xe2\x80\x9ccoincide\xe2\x80\x9d with \xe2\x80\x9cthe\ninterests of the United States.\xe2\x80\x9d Representation of Government Employees\nin Cases Where Their Interests Diverge from Those of the United States,\n4B Op. O.L.C. 528, 531 (1980). If \xe2\x80\x9cprivate and public interests coincide,\nthe representation of private interests is tantamount to representation of\nthe interests of the United States.\xe2\x80\x9d Id. The prototypical instance of this\nconvergence is when a federal employee is sued in his individual capacity\nfor actions taken in the course and scope of his employment, such as a suit\nunder Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that seeks damages for allegedly unconstitutional conduct taken under color of the employee\xe2\x80\x99s federal office. \xe2\x80\x9cIn such\n5\n\n\x0c44 Op. O.L.C. __ (Oct. 7, 2020)\n\nproceedings, the United States ordinarily has interests substantially identical to those of the employee in establishing the lawfulness of authorized\nconduct on behalf of the United States and in relieving the employee of\nthe threat and burden of litigation that might otherwise chill the performance of official duties.\xe2\x80\x9d Barr Memorandum at 9. After all, \xe2\x80\x9c[n]o man of\ncommon prudence would enter the public service if he knew that the\nperformance of his duty would render him liable to be plagued to death\nwith lawsuits, which he must carry on at his own expense.\xe2\x80\x9d Case of Captain Wilkes, 9 Op. Att\xe2\x80\x99y Gen. 51, 52 (1857). At the same time, we have\nrecognized that the Attorney General should not provide representation to\nvindicate interests that are \xe2\x80\x9cpurely personal.\xe2\x80\x9d Representation of White\nHouse Employees, 4B Op. O.L.C. 749, 753 (1980). Examples of purely\npersonal interests include \xe2\x80\x9cthe interests in avoiding federal criminal\nprosecution, civil liability to the United States[,] or adverse administrative\naction by a federal agency.\xe2\x80\x9d Id.\nThe Attorney General\xe2\x80\x99s authority to represent federal employees includes the authority to \xe2\x80\x9cattend to the interests of the United States by\nauthorizing the retention of private counsel at government expense, or\nthe reimbursement of counsel fees incurred.\xe2\x80\x9d Barr Memorandum at 12\nn.15; see also Memorandum for Glen E. Pommerening, Assistant Attorney General for Administration, from Antonin Scalia, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Authority for Employment of\nOutside Legal Counsel at 1 (Mar. 4, 1976) (\xe2\x80\x9cScalia Memorandum\xe2\x80\x9d).\n\xe2\x80\x9cThe conclusion that the Attorney General has such implied authority is\nbased on that fact that he possesses not only representational authority,\nsee 28 U.S.C. \xc2\xa7 517, but executive authority as well, see 28 U.S.C. \xc2\xa7 509,\nand the latter may be used in furtherance of the former.\xe2\x80\x9d Reimbursing\nJustice Department Employees for Fees Incurred in Using Private Counsel Representation at Congressional Depositions, 14 Op. O.L.C. 132, 135\n(1990) (\xe2\x80\x9cReimbursing Justice Department Employees\xe2\x80\x9d). Reimbursement\nof attorney\xe2\x80\x99s fees paid to private counsel, rather than representation by\ngovernment attorneys, may be warranted when representation of the\nfederal employee would serve the interest of the United States, but government attorneys themselves may have a conflict of interest or otherwise\nbe unable to provide representation. For example, it may serve the interest\nof the United States to represent an employee in a federal criminal investigation, but the government itself would have a conflict of interest in\n6\n\n\x0cReimbursing the Attorney\xe2\x80\x99s Fees of Witnesses in the Mueller Investigation\n\nrepresenting the employee; in such a case, it may be appropriate for the\nemployee to retain a private attorney and for the government to reimburse\nthe employee\xe2\x80\x99s attorney\xe2\x80\x99s fees. See Scalia Memorandum at 6; Barr Memorandum at 16\xe2\x80\x9317.\nThe Attorney General has implemented these principles in regulations\nknown as the \xe2\x80\x9cRepresentation Guidelines.\xe2\x80\x9d See 28 C.F.R. \xc2\xa7\xc2\xa7 50.15\xe2\x80\x9350.16.\nSection 50.15(a) of the Representation Guidelines provides for representation of current and former federal employees:\n[A] federal employee (hereby defined to include present and former\nFederal officials and employees) may be provided representation in\ncivil, criminal and Congressional proceedings in which he is sued,\nsubpoenaed, or charged in his individual capacity, not covered by\n\xc2\xa7 15.1 of this chapter, when the actions for which representation is\nrequested reasonably appear to have been performed within the\nscope of the employee\xe2\x80\x99s employment and the Attorney General or\nhis designee determines that providing representation would otherwise be in the interest of the United States.\nId. \xc2\xa7 50.15(a). 2 Subsection (a)(4) applies to federal criminal proceedings,\nsuch as the Mueller Investigation. See id. \xc2\xa7\xc2\xa7 600.1, 600.4(a). It provides:\nRepresentation generally is not available in federal criminal proceedings. Representation may be provided to a federal employee in connection with a federal criminal proceeding only where the Attorney\nGeneral or his designee determines that representation is in the interest of the United States and subject to applicable limitations of\n\xc2\xa7 50.16. In determining whether representation in a federal criminal\nproceeding is in the interest of the United States, the Attorney General or his designee shall consider, among other factors, the relevance of any non-prosecutorial interests of the United States, the importance of the interests implicated, the Department\xe2\x80\x99s ability to\nprotect those interests through other means, and the likelihood of a\nSection 15.1 of title 28 of the Code of Federal Regulations governs instances in\nwhich the United States is substituted as the defendant for a federal employee sued for\nactions taken in the course and scope of his employment, thus making the suit one\nagainst the United States itself and individual representation unnecessary. See 28 U.S.C.\n\xc2\xa7 2679(b)(1), (d).\n2\n\n7\n\n\x0c44 Op. O.L.C. __ (Oct. 7, 2020)\n\nconflict of interest between the Department\xe2\x80\x99s prosecutorial and representational responsibilities. If representation is authorized, the Attorney General or his designee also may determine whether representation by Department attorneys, retention of private counsel at\nfederal expense, or reimbursement to the employee of private counsel fees is most appropriate under the circumstances.\nId. \xc2\xa7 50.15(a)(4).\nSection 50.16 governs the retention of private counsel for the employee. The Department may approve the retention of counsel in advance and\npay attorney\xe2\x80\x99s fees as they are incurred. Id. \xc2\xa7 50.16(c). Or the Department\nmay reimburse after the fact the attorney\xe2\x80\x99s fees an employee has incurred.\nId. \xc2\xa7 50.16(d). Reimbursement is limited to \xe2\x80\x9clegal work that is determined\nto be in the interest of the United States\xe2\x80\x9d and is not available \xe2\x80\x9cfor legal\nwork that advances only the individual interests of the employee.\xe2\x80\x9d Id.\n\xc2\xa7 50.16(d)(1). In particular, \xe2\x80\x9c[r]eimbursement shall not be provided if the\nUnited States decides to seek an indictment of or to file an information\nagainst the employee seeking reimbursement, on a criminal charge relating to the conduct concerning which representation was undertaken.\xe2\x80\x9d Id.\n\xc2\xa7 50.16(d)(4).\nIII.\nYou have asked how certain elements of the Representation Guidelines\nshould apply to requests for reimbursement of attorney\xe2\x80\x99s fees incurred by\nfederal employees interviewed as witnesses in the Mueller Investigation\nconcerning information obtained during the course of their federal duties.\nSpecifically, you have asked: (1) whether such a witness interviewed\nunder threat of subpoena should be viewed as \xe2\x80\x9csubpoenaed,\xe2\x80\x9d 28 C.F.R.\n\xc2\xa7 50.15(a); (2) whether such a witness appears in his \xe2\x80\x9cindividual capacity,\xe2\x80\x9d id.; and (3) what factors should be considered in evaluating \xe2\x80\x9cthe\ninterest of the United States,\xe2\x80\x9d id. \xc2\xa7 50.15(a)(4), in reimbursing those fees.\nWe address each question in turn.\nA.\nSection 50.15(a) provides that a present or former federal employee\n\xe2\x80\x9cmay be provided representation in civil, criminal and Congressional\n8\n\n\x0cReimbursing the Attorney\xe2\x80\x99s Fees of Witnesses in the Mueller Investigation\n\nproceedings in which he is sued, subpoenaed, or charged in his individual\ncapacity.\xe2\x80\x9d Id. \xc2\xa7 50.15(a). The word \xe2\x80\x9csubpoenaed\xe2\x80\x9d clearly embraces a\nwitness who is served with a subpoena. We think that the term also applies to a witness who submits to an interview under express or implied\nthreat of subpoena.\nAt first blush, section 50.15 might be read to require the formal service\nof a complaint, subpoena, or charge before an employee qualifies for\nrepresentation. But we do not think the regulation requires such formality.\nA federal employee who submits to an interview under threat of subpoena\nmay reasonably be considered to have been \xe2\x80\x9csubpoenaed\xe2\x80\x9d because he has\ncomplied with the request under threat of the potential penalties that\nwould attach to a refusal to comply with the threatened subpoena. Similarly, we understand that the Civil Division has sometimes provided representation under the regulation when a federal employee has been threatened with a personal-capacity suit and requires representation.\nJust as the Representation Guidelines permit representation of an employee credibly threatened with a lawsuit, we think the regulation also\npermits representation for an interview conducted under threat of subpoena. It is common practice for an investigator with subpoena authority\nto negotiate for a witness\xe2\x80\x99s voluntary appearance in lieu of the need for\nformal testimony in compliance with a subpoena. In federal criminal\ninvestigations, for instance, Department attorneys are encouraged to\nconsider seeking the voluntary cooperation of a witness before issuing\na grand jury subpoena. See U.S. Dep\xe2\x80\x99t of Justice, Justice Manual\n\xc2\xa7 9-11.254 (2018) (providing that \xe2\x80\x9c[b]efore issuing a grand jury subpoena,\nprosecutors should consider . . . whether a voluntary request . . . is available to obtain the information sought\xe2\x80\x9d). In congressional inquiries, the\nExecutive Branch similarly expects congressional committees to seek the\nvoluntary appearances of witnesses prior to the issuance of a subpoena, as\npart of the \xe2\x80\x9cconstitutionally mandated accommodation process.\xe2\x80\x9d Authority\nof the Department of Health and Human Services to Pay for Private\nCounsel to Represent an Employee Before Congressional Committees,\n41 Op. O.L.C. __, at *3 (Jan. 18, 2017) (\xe2\x80\x9cAuthority to Pay for Private\nCounsel \xe2\x80\x9d); see also Response to Congressional Requests for Information\nRegarding Decisions Made under the Independent Counsel Act, 10 Op.\nO.L.C. 68, 81 (1986) (explaining that \xe2\x80\x9crarely do congressional requests\nfor information result in a subpoena of an Executive Branch official\xe2\x80\x9d\n9\n\n\x0c44 Op. O.L.C. __ (Oct. 7, 2020)\n\nbecause \xe2\x80\x9c[i]n most cases the informal process of negotiation and accommodation . . . is sufficient to resolve any dispute\xe2\x80\x9d). We think it would be\nimplausible to read the Representation Guidelines to be inapplicable in\nthese common circumstances, in which the government interests at stake\nare not substantively different from when an employee is served with a\nformal subpoena.\nThis conclusion is supported by Civil Division practice. In a 1995\nmemorandum, the Director of the Torts Branch explained that \xe2\x80\x9c[w]e have\nconstrued the \xe2\x80\x98subpoena\xe2\x80\x99 requirement to encompass situations where the\nemployee appears voluntarily but would be subject to a subpoena but for\nhis or her voluntary appearance.\xe2\x80\x9d Memorandum for Frank W. Hunger,\nAssistant Attorney General, Civil Division, from Helene M. Goldberg,\nDirector, Torts Branch, Civil Division, Re: Payment of Private Counsel\nFees in Connection with Whitewater Investigation at 2 n.1 (Aug. 10,\n1995) (\xe2\x80\x9cWhitewater Memorandum\xe2\x80\x9d). Since then, we understand that the\nCivil Division has generally, although not uniformly, adhered to this\nview. 3 For example, in 2000, the Civil Division approved several requests\nfor reimbursement of attorney\xe2\x80\x99s fees incurred by federal employees who\nappeared as witnesses in connection with congressional inquiries without\nany indication that a congressional subpoena was ever issued.4 Moreover,\nin several instances the Civil Division has reimbursed employees for\nretaining a private attorney for a voluntary interview given to federal\ncriminal investigators in lieu of testimony before a grand jury after the\nemployee received a subpoena for such testimony. 5 It would make little\n3 We are aware of one instance in which the Civil Division expressed a contrary view.\nSee Letter for Beth Nolan, Counsel to the President, from Stuart E. Schiffer, Deputy\nAssistant Attorney General, Civil Division at 2 (June 1, 2000) (\xe2\x80\x9cMr. McLarty\xe2\x80\x99s request\nfor reimbursement is granted to the extent he seeks reimbursement of private counsel fees\nand costs incurred subsequent to being served with a subpoena . . . but denied to the\nextent he seeks reimbursement of private counsel fees and costs incurred prior to being\nserved with a subpoena.\xe2\x80\x9d).\n4 See, e.g., Letter for Beth Nolan, Counsel to the President, from Stuart E. Schiffer,\nDeputy Assistant Attorney General, Civil Division (Aug. 3, 2000) (granting in part\nrequest from White House Counsel\xe2\x80\x99s Office to reimburse attorney\xe2\x80\x99s fees incurred by\nformer Deputy Assistant to the President and Deputy Director of Presidential Personnel).\n5 See Memorandum for Stuart E. Schiffer, Deputy Assistant Attorney General, Civil\nDivision, from Helene M. Goldberg, Director, Torts Branch, Civil Division at 2 (Nov. 15,\n2000) (granting reimbursement request of Department of Interior employee who \xe2\x80\x9cwas\n\n10\n\n\x0cReimbursing the Attorney\xe2\x80\x99s Fees of Witnesses in the Mueller Investigation\n\nsense to read section 50.15(a) to authorize the reimbursement of attorney\xe2\x80\x99s fees for a voluntary interview conducted after formal issuance of a\nsubpoena, but not for one conducted under credible threat of subpoena.\nWe thus do not construe the term \xe2\x80\x9csubpoenaed\xe2\x80\x9d to require issuance of a\nformal subpoena before the regulation becomes applicable. A contrary\nconclusion would establish a perverse incentive for federal employees to\ndecline to cooperate and instead to trigger the issuance of formal subpoenas, which could result in additional attorney\xe2\x80\x99s fees, potentially at the\nexpense of the United States. 6\n\nserved with a grand jury subpoena\xe2\x80\x9d and \xe2\x80\x9cagreed to an interview in lieu of [a] grand jury\nappearance\xe2\x80\x9d); Memorandum for Stuart E. Schiffer, Deputy Assistant Attorney General,\nCivil Division, from Helene M. Goldberg, Director, Torts Branch, Civil Division at 2\n(Nov. 15, 2000) (same); Memorandum for Stuart E. Schiffer, Deputy Assistant Attorney\nGeneral, Civil Division, from Helene M. Goldberg, Director, Torts Branch, Civil Division\nat 3 (Aug. 3, 2000) (same with respect to request of former Deputy Assistant to the\nPresident and Deputy Director of Presidential Personnel). These memoranda briefly\npresent the facts of the requests and convey the recommendations of the Director of the\nTorts Branch as to whether the Civil Division should approve them. A note-to-file affixed\nto each memorandum and bearing the same date indicates that each request was approved\nat least in part.\n6 Even if a person were not \xe2\x80\x9csubpoenaed\xe2\x80\x9d within the meaning of section 50.15(a), the\nAttorney General would still have the authority under 28 U.S.C. \xc2\xa7 517 to provide representation if it were in the interest of the United States to do so. Representation, including\nthe reimbursement of private-counsel fees, may be provided outside the framework of the\nRepresentation Guidelines. See Reimbursing Justice Department Employees, 14 Op.\nO.L.C. at 134\xe2\x80\x9337 & n.3. For instance, although the regulation covers only the representation of \xe2\x80\x9cpresent and former Federal officials and employees,\xe2\x80\x9d 28 C.F.R. \xc2\xa7 50.15(a), the\nAttorney General may also represent non-governmental employees where it is in the\ninterest of the United States to do so. See Hall v. Clinton, 285 F.3d 74, 80 (D.C. Cir.\n2002) (holding that the Department may represent the First Lady under 28 U.S.C. \xc2\xa7 517\n\xe2\x80\x9ceven if\xe2\x80\x9d she were a deemed a \xe2\x80\x9cpurely private citizen at all times relevant\xe2\x80\x9d); Constitutional Torts Staff, Torts Branch, Civil Division, U.S. Dep\xe2\x80\x99t of Justice, The Fundamentals of\nIndividual Capacity Representation of Federal Employees in Civil and Criminal Proceedings 32 (Oct. 2018) (noting that \xe2\x80\x9crepresentation also may be provided to non-government\nemployees under the general authority of 28 U.S.C. \xc2\xa7 517\xe2\x80\x9d). And nothing in the Representation Guidelines is to the contrary; the regulations do not prohibit representing federal\nemployees who have not been subpoenaed, but merely authorize representation to be\nprovided to subpoenaed employees. 28 C.F.R. \xc2\xa7 50.15(a). As a result, nothing in the\nRepresentation Guidelines precludes the Attorney General from authorizing representation under the statute even for a witness who was not \xe2\x80\x9csubpoenaed.\xe2\x80\x9d\n\n11\n\n\x0c44 Op. O.L.C. __ (Oct. 7, 2020)\n\nB.\nSection 50.15(a) also covers representation when a current or former\nfederal employee is subpoenaed \xe2\x80\x9cin his individual capacity.\xe2\x80\x9d We believe\nthat when an investigator, such as the Special Counsel, seeks information\nfrom such a person concerning matters within his personal knowledge,\nthat person generally appears in his individual capacity, even when that\ninformation was acquired during the course of the performance of the\nwitness\xe2\x80\x99s federal duties.\nIn determining whether a suit is brought against a government official\nin his official or individual capacity, the Supreme Court has examined\n\xe2\x80\x9c[t]he identity of the real party in interest.\xe2\x80\x9d Lewis v. Clarke, 137 S. Ct.\n1285, 1292 (2017). \xe2\x80\x9cIn an official-capacity claim,\xe2\x80\x9d the Court has explained, \xe2\x80\x9cthe relief sought is only nominally against the official and in\nfact is against the official\xe2\x80\x99s office and thus the sovereign itself.\xe2\x80\x9d Id. \xe2\x80\x9cThis\nis why, when officials sued in their official capacities leave office, their\nsuccessors automatically assume their role in the litigation.\xe2\x80\x9d Id.; see also\nHafer v. Melo, 502 U.S. 21, 25 (1991) (explaining that \xe2\x80\x9cofficial-capacity\nsuits . . . generally represent only another way of pleading an action\nagainst an entity of which an officer is an agent\xe2\x80\x9d (internal citations and\nquotation marks and omitted)). \xe2\x80\x9cPersonal-capacity suits, on the other\nhand, seek to impose individual liability upon a government officer.\xe2\x80\x9d\nHafer, 502 U.S. at 25 (emphasis added).\nWe think the meaning of \xe2\x80\x9cindividual capacity\xe2\x80\x9d in 28 C.F.R. \xc2\xa7 50.15(a)\ntracks this distinction: a witness appears in his personal capacity when he\nis personally threatened with potential liability from a subpoena. The\ntypical instance in which a federal employee receives government representation under this regulation, after all, is a constitutional tort suit against\nthat employee under Bivens, which seeks to recover damages from the\nemployee personally. Though such suits arise from actions taken by the\nemployee in the course and scope of his government employment, such\nsuits are nonetheless considered to be against the employee in his individual capacity. See FDIC v. Meyer, 510 U.S. 471, 485\xe2\x80\x9386 (1994). Notably,\nthe regulation does not apply to suits in which the United States has been\nsubstituted as the defendant for a federal employee sued for actions taken\nin course and scope of his employment, supra note 2, which relieves the\nemployee of personal liability. That exemption underscores that the regu12\n\n\x0cReimbursing the Attorney\xe2\x80\x99s Fees of Witnesses in the Mueller Investigation\n\nlation is concerned with proceedings in which a person is exposed to\npersonal liability as a result of his official conduct as a government employee. And we have previously used the concept of whether such a\nperson faces a threat of personal liability to distinguish official-capacity\nfrom individual-capacity proceedings under the Representation Guidelines. See Memorandum for Peter J. Wallison, Counsel to the President,\nfrom Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of\nLegal Counsel, Re: Federal Retirement Thrift Investment Board at 1\n(Sept. 24, 1986) (equating \xe2\x80\x9cpersonal capacity\xe2\x80\x9d under the Representation\nGuidelines with whether the employee\xe2\x80\x99s \xe2\x80\x9cpersonal resources\xe2\x80\x9d were at\nstake); Memorandum for Glen L. Archer, Jr., Assistant Attorney General,\nTax Division, from Ralph W. Tarr, Deputy Assistant Attorney General,\nOffice of Legal Counsel, Re: Authority of Tax Division to Pay Legal Fees\nof Private Counsel at 2 (Feb. 28, 1984) (similar).\nA person interviewed in connection with the Mueller Investigation\nwould generally be appearing in his individual capacity even if the person\nwere conveying information he acquired in the course of performing his\nofficial government duties. Such information would generally be information in that individual\xe2\x80\x99s personal knowledge, not information to be\nprovided by virtue of his government office. In the case of a former employee, for example, the Special Counsel in most instances could not seek\ntestimony from his successor in office, because the successor would not\nhave personal knowledge of the matters being investigated. And should\nthe person unlawfully refuse to provide the information, it would be he,\nand not the federal government, who would be subject to potential liability for civil and criminal contempt. See 18 U.S.C. \xc2\xa7 401; 28 U.S.C.\n\xc2\xa7 1826.\nConsider, for example, the Special Counsel\xe2\x80\x99s request to interview Dana\nJ. Boente. Mr. Boente served as the Acting Deputy Attorney General from\nFebruary 8, 2017 to April 25, 2017. Special Counsel Mueller sought to\ninterview Mr. Boente \xe2\x80\x9cbecause of his positions and his roles . . . [in]\nevents in which he participated.\xe2\x80\x9d Letter for Chad A. Readler, Acting\nAssistant Attorney General, Civil Division, from Scott Schools, Associate\nDeputy Attorney General at 1 (Jan. 12, 2018) (emphasis added); see also\nLetter for Scott Schools, Associate Deputy Attorney General, from Dana\nJ. Boente, Acting Assistant Attorney General, National Security Division\nat 1 (Jan. 2, 2018) (\xe2\x80\x9cSpecial Counsel Robert Mueller has asked to inter13\n\n\x0c44 Op. O.L.C. __ (Oct. 7, 2020)\n\nview me[.] In the event I do not submit to an interview, Special Counsel\nMueller would have the authority to issue a subpoena for my testimony[.]\xe2\x80\x9d\n(emphases added)). In other words, the Special Counsel sought information from Mr. Boente, not from the Office of the Deputy Attorney\nGeneral. And had the Special Counsel served Mr. Boente with a subpoena, the obligation to testify (and any penalties for a failure to do so) would\nrun against Mr. Boente personally\xe2\x80\x94not the federal government. Thus, the\nreal party in interest would be the witness, Mr. Boente.\nThis conclusion does not mean that a federal employee subpoenaed in\nhis official, rather than, individual, capacity would be ineligible for government representation. There are examples of official-capacity subpoenas. A custodian of records belonging to a federal agency who provides\ninformation about the records or the manner in which they are maintained,\nfor example, does so in his official capacity as a representative of the\nagency. See, e.g., 20 C.F.R. \xc2\xa7 423.3; 37 C.F.R. \xc2\xa7 205.22(a)(1); 44 C.F.R.\n\xc2\xa7 5.83; 45 C.F.R. \xc2\xa7 4.2; see also 28 C.F.R. \xc2\xa7 0.77(j) (instructing the\nAssistant Attorney General for Administration to accept service of subpoenas \xe2\x80\x9cdirected to the Attorney General in his official capacity\xe2\x80\x9d). But\n\xe2\x80\x9c[r]epresentation of employees in their official capacities is provided\nautomatically, without reference to the representation guidelines.\xe2\x80\x9d Olson\nMemorandum at 3 n.3. We are not aware that the Special Counsel, who\nreceived broad access to the records of the federal government, compelled\nwitnesses or testimony from any person in an official government capacity. But if the Special Counsel did so, the witness\xe2\x80\x99s official-capacity status\nwould automatically entitle the witness to government representation\nwithout regard to the Representation Guidelines.\nC.\nThe fact that a witness is subpoenaed to testify in his individual capacity about information acquired during the course of his federal employment does not alone justify reimbursing his attorney\xe2\x80\x99s fees. The Department must also determine that reimbursement would be in the \xe2\x80\x9cinterest of\nthe United States.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 517; 28 C.F.R. \xc2\xa7 50.15(a)(4). Although\nwe are not in a position to make that determination as to any particular\nwitness, you have asked us for guidance on how the Department should\nevaluate whether it is in the interest of the United States to reimburse the\n14\n\n\x0cReimbursing the Attorney\xe2\x80\x99s Fees of Witnesses in the Mueller Investigation\n\nattorney\xe2\x80\x99s fees of witnesses interviewed in connection with the Mueller\nInvestigation about information they acquired in the course of their government employment.\n1.\nThe Representation Guidelines provide that government representation\n\xe2\x80\x9cgenerally is not available in federal criminal proceedings.\xe2\x80\x9d 28 C.F.R.\n\xc2\xa7 50.15(a)(4). This presumption reflects the fact that in federal criminal\nproceedings, the interest of the United States \xe2\x80\x9cordinarily can be expected\nto be represented fully by the federal prosecutor, who is answerable in the\nexecutive branch hierarchy to the Attorney General, who in turn is directly accountable to the President.\xe2\x80\x9d Barr Memorandum at 10. That is especially true when the person seeking representation is a subject or target of\nthe criminal investigation. 7 In such an instance, the interest of the United\nStates lies in favor of enforcing the law against the subject or target,\nrather than assisting the person in avoiding criminal liability. Id. at 13\xe2\x80\x9314.\nBut even in federal criminal proceedings, there may be \xe2\x80\x9csituations in\nwhich representation of an employee who is a witness . . . would be\ncompletely consistent with the interests of the prosecution and in which it\nwould be in the United States\xe2\x80\x99 interest to provide representation.\xe2\x80\x9d Id. at\n14. For example, \xe2\x80\x9cfor Administration officials simply, and properly, doing\ntheir jobs\xe2\x80\x9d who are asked to provide information acquired in the course of\ntheir government duties, representation may be warranted to avoid the\n\xe2\x80\x9cspecter of personal liability for attorneys fees.\xe2\x80\x9d Id. at 18 (internal quotation marks omitted).\nAccordingly, the Representation Guidelines recognize that there are\ncircumstances where it is in the interest of the United States to represent\ncurrent and former government employees in federal criminal proceedThe Department\xe2\x80\x99s Justice Manual explains that \xe2\x80\x9c[a] \xe2\x80\x98target\xe2\x80\x99 is a person as to whom\nthe prosecutor or the grand jury has substantial evidence linking him or her to the\ncommission of a crime and who, in the judgment of the prosecutor, is a putative defendant,\xe2\x80\x9d and \xe2\x80\x9c[a] \xe2\x80\x98subject\xe2\x80\x99 . . . is a person whose conduct is within the scope of the grand\njury\xe2\x80\x99s investigation.\xe2\x80\x9d U.S. Dep\xe2\x80\x99t of Justice, Justice Manual \xc2\xa7 9-11.151 (Jan. 2020). The\nRepresentation Guidelines also note that \xe2\x80\x9c[a]n employee is the subject of an investigation if, in addition to being circumstantially implicated by having the appropriate\nresponsibilities at the appropriate time, there is some evidence of his specific participation in a crime.\xe2\x80\x9d 28 C.F.R. \xc2\xa7 50.15(a)(5).\n7\n\n15\n\n\x0c44 Op. O.L.C. __ (Oct. 7, 2020)\n\nings. They establish no fixed formula governing that determination.\nInstead, they provide for consideration of, \xe2\x80\x9camong other factors, the\nrelevance of any non-prosecutorial interests of the United States, the\nimportance of the interests implicated, the Department\xe2\x80\x99s ability to protect\nthose interests through other means, and the likelihood of a conflict of\ninterest between the Department\xe2\x80\x99s prosecutorial and representational\nresponsibilities.\xe2\x80\x9d 28 C.F.R. \xc2\xa7 50.15(a)(4).\n2.\nIn analyzing the interests at stake when current or former government\nemployees appear as witnesses in Special Counsel investigations, we are\nguided by the parallels to investigations conducted by Independent Counsels. The Department\xe2\x80\x99s Special Counsel regulations \xe2\x80\x9creplace[d] the procedures set out in the Independent Counsel Reauthorization Act of 1994.\xe2\x80\x9d\nOffice of Special Counsel, 64 Fed. Reg. at 37,038.\nThis Office has previously recognized that the United States has a\nstrong interest in reimbursing current or former government officials who\nincur attorney\xe2\x80\x99s fees as a result of appearing as witnesses in Independent\nCounsel investigations. In 1989, we analyzed whether it was in the interest of the United States to reimburse attorney\xe2\x80\x99s fees incurred by former\nPresident Ronald Reagan and former Deputy Assistant Attorney General\nMichael Dolan. We observed that Mr. Dolan had incurred substantial\nattorney\xe2\x80\x99s fees for little reason other than he was \xe2\x80\x9ccaught in a power\nstruggle between Congress and the executive branch\xe2\x80\x9d that was the subject\nof the Independent Counsel investigation, which examined whether Department officials had committed perjury in connection with congressional testimony concerning federal environmental regulation. Barr Memorandum at 18 (internal quotation marks omitted). In such circumstances,\nthe United States has a strong interest in avoiding the chilling effects that\nthe prospect of liability for attorney\xe2\x80\x99s fees would have on \xe2\x80\x9cAdministration\nofficials simply, and properly, doing their jobs,\xe2\x80\x9d which is akin to \xe2\x80\x9cthe\nchilling effect of liability that support[s] indemnification of federal officers in Bivens actions.\xe2\x80\x9d Id. (internal quotation marks omitted).\nIn accordance with this advice, the Department has a long practice of\nreimbursing the attorney\xe2\x80\x99s fees of current or former federal employees\nwho appeared as witnesses in connection with Independent Counsel\n16\n\n\x0cReimbursing the Attorney\xe2\x80\x99s Fees of Witnesses in the Mueller Investigation\n\ninvestigations. During the George H.W. Bush Administration, the Civil\nDivision approved reimbursement requests from at least 14 employees of\nthe White House and Central Intelligence Agency who were witnesses for\nthe Independent Counsel in the Iran-Contra investigation. See Memorandum for the Deputy Attorney General from Donald M. Remy, Deputy\nAssistant Attorney General, Civil Division, Re: Implementation of Representation Guidelines in Federal Criminal Proceedings at 1, 3\xe2\x80\x934 (June 3,\n1998). During the Clinton Administration, the Civil Division approved\nreimbursement requests from at least 9 employees who appeared in connection with numerous Independent Counsel investigations and congressional inquiries. 8 Early in the George W. Bush Administration, the Civil\n8 See Letter for Karen Sprecher Keating, Associate Solicitor, Department of the Interior, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (Nov. 15,\n2000) (granting in part request of Deputy Assistant Secretary in connection with Independent Counsel investigation); Letter for Karen Sprecher Keating, Associate Solicitor,\nDepartment of the Interior, from Stuart E. Schiffer, Deputy Assistant Attorney General,\nCivil Division (Nov. 15, 2000) (granting in part request of Assistant to the Deputy Chief\nof Staff to the Secretary of Interior in connection with Independent Counsel investigation); Letter for John J. Kelleher, Chief Counsel, Department of the Treasury, from Stuart\nE. Schiffer, Deputy Assistant Attorney General, Civil Division (Nov. 15, 2000) (granting\nrequest from Secret Service agent in connection with Independent Counsel investigation) ;\nLetter for Beth Nolan, Counsel to the President, from Stuart E. Schiffer, Deputy Assistant\nAttorney General, Civil Division (Aug. 28, 2000) (granting request from former Special\nAssistant to the President and Assistant to the Chief of Staff in connection with Independent Counsel investigation); Letter for Sam E. Hutchinson, Associate General Counsel,\nDepartment of Housing and Urban Development, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (Aug. 24, 2000) (granting in part request from\nformer Special Assistant to the Secretary of Housing and Urban Development in connection with Independent Counsel investigation); Letter for Beth Nolan, Counsel to the\nPresident, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division\n(Aug. 3, 2000) (granting in part request from former Deputy Assistant to the President\nand Deputy Director of Presidential Personnel in connection with Independent Counsel\ninvestigation and three congressional inquiries); Letter for Beth Nolan, Counsel to the\nPresident, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division\n(June 1, 2000) (granting request from former Deputy Assistant to the President and Press\nSecretary to the First Lady in connection with five Independent Counsel investigations\nand four congressional inquiries); Letter for Beth Nolan, Counsel to the President, from\nStuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (June 1, 2000)\n(granting in part request from former Chief of Staff, Counselor, and Assistant to the\nPresident in connection with five Independent Counsel investigations and six congressional inquiries); Letter for Beth Nolan, Counsel to the President, from Stuart E. Schiffer,\nDeputy Assistant Attorney General, Civil Division (June 1, 2000) (granting request from\n\n17\n\n\x0c44 Op. O.L.C. __ (Oct. 7, 2020)\n\nDivision approved a reimbursement request from a former employee in\nthe Clinton White House who appeared as a witness in an Independent\nCounsel investigation. See Letter for Jeffrey S. Jacobovitz from Stuart E.\nSchiffer, Deputy Assistant Attorney General, Civil Division (Mar. 8,\n2001) (granting request of former Director of White House Gift Office\nand staff member of the Office of the Social Secretary). In each instance,\nthe Civil Division concluded that the witness should be reimbursed where\nit appeared from all available information that the questioning addressed\nmatters occurring in the course of his government duties, where the witness was neither a subject nor a target of the investigation, and where\nthere was no indication that he had acted inconsistently with the interest\nof the United States.\n3.\nConsidering this practice, and the factors set forth in the Representation\nGuidelines, we think that government representation, and reimbursement\nof attorney\xe2\x80\x99s fees, will generally be in the interest of the United States for\npersons interviewed in Special Counsel investigations, such as the\nMueller Investigation, concerning information acquired in the course of\nperforming their government duties, where the witness was not a subject\nor target of the investigation.\nWe see no reason to distinguish Independent Counsel investigations\nfrom Special Counsel investigations for this purpose. Special Counsel\nMueller conducted his investigation under the auspices of regulations\nthat provided autonomy similar to that exercised by Independent Counsels before him to investigate politically sensitive criminal matters. A\nSpecial Counsel is invested with the \xe2\x80\x9cfull power\xe2\x80\x9d of a United States\nAttorney, 28 C.F.R. \xc2\xa7 600.6, just as an Independent Counsel exercised\n\xe2\x80\x9call investigative and prosecutorial functions and powers of the Department of Justice,\xe2\x80\x9d 28 U.S.C. \xc2\xa7 594(a). That power is subject to supervision; a Special Counsel is generally supervised by the Attorney General,\nsee 28 C.F.R. \xc2\xa7 600.7, just as the Independent Counsel statute provided\nthe Attorney General \xe2\x80\x9cseveral means of supervising or controlling,\xe2\x80\x9d\nformer Director of White House Special Projects and Executive Assistant to the Chief of\nStaff in connection with Independent Counsel investigation and congressional inquiry).\n\n18\n\n\x0cReimbursing the Attorney\xe2\x80\x99s Fees of Witnesses in the Mueller Investigation\n\nMorrison v. Olson, 487 U.S. 654, 696 (1988), an Independent Counsel.\nBut that supervisory power is limited in ways that closely parallel the\nIndependent Counsel statute. Like the Independent Counsel statute, the\nSpecial Counsel regulations permit the Attorney General to remove the\nSpecial Counsel only for cause. Compare 28 U.S.C. \xc2\xa7 596(a)(1) (\xe2\x80\x9cAn\nindependent counsel . . . may be removed from office . . . only for good\ncause, physical or mental disability (if not prohibited by law protecting\npersons from discrimination on the basis of such a disability), or any other\ncondition that substantially impairs the performance of such independent\ncounsel\xe2\x80\x99s duties.\xe2\x80\x9d), with 28 C.F.R. \xc2\xa7 600.7(d) (\xe2\x80\x9cThe Attorney General\nmay remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of\nDepartmental policies.\xe2\x80\x9d).\nMoreover, the Special Counsel regulations exempt the Special Counsel\nfrom the \xe2\x80\x9cday-to-day\xe2\x80\x9d supervision of any official within the Department.\n28 C.F.R. \xc2\xa7 600.7(b). The Attorney General may overrule the Special\nCounsel only where an \xe2\x80\x9caction is so inappropriate or unwarranted under\nestablished Departmental practices that it should not be pursued,\xe2\x80\x9d giving\n\xe2\x80\x9cgreat weight to the views of the Special Counsel,\xe2\x80\x9d and should the Attorney General overrule the Special Counsel, he is obliged at the conclusion\nof the investigation to explain that decision to Congress. Id.; see also id.\n\xc2\xa7 600.9(a)(3). Although the Special Counsel\xe2\x80\x99s independence is a matter of\nregulation, rather than statute, so long as these regulations remain in\neffect, they insulate the Special Counsel from many of the usual mechanisms of control and accountability, similar to the Independent Counsel.\nFor this reason, then-Deputy Attorney General Holder determined, shortly\nafter the adoption of the Special Counsel regulations, that \xe2\x80\x9cfor purposes of\nanalyzing representation and reimbursement requests\xe2\x80\x9d a Special Counsel\ninvestigation is \xe2\x80\x9cclosely analogous\xe2\x80\x9d to investigations under the Independent Counsel statute and should \xe2\x80\x9cbe treated\xe2\x80\x9d as such. Holder Memorandum\nat 4 n.3.\nIndependent Counsels and Special Counsels are not only similar in their\ninsulation from supervisory control, but also with respect to the distinctive, politically sensitive matters that occasion their appointment and\nshape the character of their investigation. Both kinds of special prosecutor\nare appointed when the Department may have a conflict of interest, typically because there is a need to investigate a senior government official,\n19\n\n\x0c44 Op. O.L.C. __ (Oct. 7, 2020)\n\nincluding even the President. Compare 28 C.F.R. \xc2\xa7 600.1, with 28 U.S.C.\n\xc2\xa7 591. These prosecutors operate in a publicized, politicized, and contentious environment. Like an Independent Counsel, a Special Counsel is\ngiven a public charge to investigate an especially sensitive matter or\ngroup of matters, given substantial independence to pursue those subjects,\nand invariably faced with substantial political pressure to produce results.\nArmed with vast powers and resources, and a singular focus, Special\nCounsels have the incentive and means to leave no stone unturned, which\noften requires interviewing a wide range of witnesses who acquired relevant information in the ordinary course of their jobs as government employees.\nAs the Department has long recognized in Independent Counsel investigations, these dynamics give the United States a strong \xe2\x80\x9cnonprosecutorial interest,\xe2\x80\x9d 28 C.F.R. \xc2\xa7 50.15(a)(4), in ensuring that its employees who are called upon to provide information acquired as a result of\ntheir federal employment have a lawyer available at government expense.\nWe have repeatedly recognized that the United States has a considerable\ninterest in protecting \xe2\x80\x9cits employees from the burden of undergoing potentially hostile questioning and incurring legal fees as a result of actions\ntaken in good faith\xe2\x80\x9d on behalf of the government, which could otherwise\n\xe2\x80\x9cchill the employees\xe2\x80\x99 exercise of their official duties.\xe2\x80\x9d Authority to Pay\nfor Private Counsel, 41 Op. O.L.C. __, at *13; Barr Memorandum at 9\xe2\x80\x9310\n(similar); Indemnification of Treasury Department Officers and Employees, 15 Op. O.L.C. 57, 62 (1991) (similar); Department of Justice Representation in Federal Criminal Proceedings, 6 Op. O.L.C. 153, 153\xe2\x80\x9354\n(1982) (similar). \xe2\x80\x9c[P]roviding counsel to employees facing such burdens\nserves important government interests in ensuring that Executive Branch\nemployees acting in good faith may discharge their official duties and\ndiscretionary functions rigorously, without concern about potential reprisals or legal fees.\xe2\x80\x9d Authority to Pay for Private Counsel, 41 Op. O.L.C. __,\nat *13. And because a Special Counsel\xe2\x80\x99s charge is to fulfill a broad prosecutorial mandate, and not to account for the investigation\xe2\x80\x99s burdens on the\nfederal workforce, it is not likely that a Special Counsel will \xe2\x80\x9cadequately\nrepresent[]\xe2\x80\x9d this interest of the United States. Barr Memorandum at 11\nn.13.\nThe Mueller Investigation unquestionably operated in a fraught and\nhigh-profile political environment. It was conducted by determined,\n20\n\n\x0cReimbursing the Attorney\xe2\x80\x99s Fees of Witnesses in the Mueller Investigation\n\nexperienced, and well-resourced prosecutors under significant political\nand public scrutiny. The Special Counsel brought multiple charges for\nfalse statements for lying to government investigators, e.g., Superseding\nInformation, United States v. Manafort, No. 17-cr-201-1 (D.D.C. filed\nSept. 14, 2018); Superseding Information, United States v. Gates, No. 17cr-201-2 (D.D.C. filed Feb. 2, 2018); Information, United States v. Papadopoulos, No. 17-cr-182 (D.D.C. filed Oct. 3, 2017), and multiple charges\nfor crimes that were separate from the principal purpose of the investigation, e.g., Superseding Indictment, United States v. Manafort, No. 18-cr83 (E.D. Va. filed Feb. 22, 2018) (charging 16 counts related to false\nindividual income tax returns, 7 counts of failure to file reports of foreign\nbank and financial accounts, 5 counts of bank fraud conspiracy, and 4\ncounts of bank fraud). All told, the investigation consumed nearly $32\nmillion in government resources. See supra Part I. And as noted, the\nSpecial Counsel interviewed no fewer than 40 federal government employees, who, with one exception, were not charged with any offense. The\nbreadth and depth of such investigations creates a danger of forcing many\nfederal employees to incur attorney\xe2\x80\x99s fees for little reason other than\ndoing their jobs.\nWe recognize that, in an ordinary federal criminal investigation, it generally is not in the interest of the United States to pay the attorney\xe2\x80\x99s fees\nof witnesses simply because those witnesses acquired relevant information in the course of government employment. Most witnesses do not\nneed a lawyer to cooperate with investigators. But we cannot ignore that a\nSpecial Counsel investigation is not an ordinary criminal investigation. A\ncareful and prudent government employee\xe2\x80\x94with no interest or incentive\nto dissemble\xe2\x80\x94may reasonably feel at personal risk in submitting to an\ninterview and providing information to the Special Counsel, given the\nhistory of such interviews leading to further investigation of the witnesses\nthemselves. Owing to the breadth of the federal criminal code, federal\nprosecutors have enormous charging discretion over a wide range of\nconduct. See Daniel C. Richman & William J. Stuntz, Al Capone\xe2\x80\x99s Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105\nColum. L. Rev. 583, 608\xe2\x80\x9318 (2005). \xe2\x80\x9cOnly someone who has worked in\nthe field of law enforcement can fully appreciate the vast power and the\nimmense discretion that are placed in the hands of a prosecutor with\nrespect to the objects of his investigation.\xe2\x80\x9d Morrison, 487 U.S. at 727\n21\n\n\x0c44 Op. O.L.C. __ (Oct. 7, 2020)\n\n(Scalia, J., dissenting). Many witnesses interviewed by the Special Counsel\xe2\x80\x99s investigators were high-ranking Administration officials close to the\nPresident. The Special Counsel\xe2\x80\x99s singular, high-profile mandate, and the\npolitically fraught context in which he operated, mean that witnesses\nmight have reasonably feared that the Special Counsel would \xe2\x80\x9cpick[] the\nman and then search[] the law books . . . to pin some offense on him.\xe2\x80\x9d Id.\nat 728 (quoting Robert H. Jackson, Attorney General, The Federal Prosecutor 5 (Apr. 1, 1940) (address at Second Annual Conference of United\nStates Attorneys)). In this context, such witnesses might reasonably seek\nthe advice and assistance of a lawyer, to be scrupulously careful that \xe2\x80\x9cthe\nemployee provides accurate and complete information\xe2\x80\x9d and to support the\nemployee \xe2\x80\x9cin the face of potentially hostile questions,\xe2\x80\x9d interests that we\nhave recognized would similarly justify the reimbursement of attorney\xe2\x80\x99s\nfees in congressional investigations. Authority to Pay for Private Counsel,\n41 Op. O.L.C. __, at *13.\nThe Representation Guidelines do not permit the reimbursement of attorney\xe2\x80\x99s fees for \xe2\x80\x9clegal work that advances only the individual interests of\nthe employee.\xe2\x80\x9d 28 C.F.R. \xc2\xa7 50.16(d)(1). Witnesses interviewed by the\nSpecial Counsel who may now seek reimbursement of attorney\xe2\x80\x99s fees no\ndoubt had personal interests in seeking representation. But \xe2\x80\x9cthese interests\nare not \xe2\x80\x98purely personal\xe2\x80\x99; they are \xe2\x80\x98incidental\xe2\x80\x99 to, and in many cases\noverlap with, the substantial government interests implicated\xe2\x80\x9d in providing government representation. Authority to Pay for Private Counsel, 41\nOp. O.L.C. __, at *16 (quoting Reimbursing Justice Department Employees, 14 Op. O.L.C. at 137). These incidental personal benefits do not\nchange the important governmental interests advanced by reimbursing\nattorney\xe2\x80\x99s fees: to avoid the substantial burdens that Special Counsel\ninvestigations place on the good-faith labors of government employees.\n4.\nTo be clear, we do not believe that reimbursement should be provided\nsimply because a government official incurred attorney\xe2\x80\x99s fees appearing\nas a witness in connection with the Mueller Investigation. The Civil\nDivision still must conclude that doing so is in the interest of the United\nStates, considering all the facts and circumstances of the specific request.\n\n22\n\n\x0cReimbursing the Attorney\xe2\x80\x99s Fees of Witnesses in the Mueller Investigation\n\nMost notably, if a witness were suspected of wrongdoing, then the calculus may change significantly. Reimbursing a witness who was, for\nexample, a subject or the target of the Special Counsel\xe2\x80\x99s investigation\nitself, may well be inappropriate. Providing government representation to\nsuch a person would conflict with the strong prosecutorial interests of the\nUnited States. Cf. 28 C.F.R. \xc2\xa7 50.16(d)(4) (\xe2\x80\x9cReimbursement shall not be\nprovided if the United States decides to seek an indictment of or to file an\ninformation against the employee seeking reimbursement, on a criminal\ncharge relating to the conduct concerning which representation was undertaken.\xe2\x80\x9d). Similarly, if the witness declined to cooperate with the investigation or affirmatively obstructed it, such facts would weigh against\nreimbursement of attorney\xe2\x80\x99s fees. See Memorandum for Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division, from Helene M.\nGoldberg, Director, Torts Branch, Civil Division, at 2 (Feb. 23, 2001)\n(recommending that the Department deny reimbursement because the\nwitness offered \xe2\x80\x9cevasive\xe2\x80\x9d and \xe2\x80\x9cunbelievable\xe2\x80\x9d answers); Letter for Nancy\nA. Healy, Chief, Civil Litigation Unit, Federal Bureau of Investigation,\nfrom Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (Jan. 26, 2001) (denying reimbursement because the witness had\nfailed to cooperate fully with a Special Counsel investigation). As always,\nthe question is whether the representation was in the interest of the United\nStates. Cf. 28 C.F.R. \xc2\xa7 50.16(c)(2)(iv) (\xe2\x80\x9cFederal payment to private counsel for an employee will cease if . . . the Department of Justice . . .\n[d]etermines that continued representation is not in the interest of the\nUnited States.\xe2\x80\x9d). The United States unquestionably has a strong interest in\nensuring that its employees facilitate enforcement of the law, an interest\nthat may justify denying an attorney\xe2\x80\x99s fees request by an employee who\nfailed to do so.\nIV.\nWe conclude that the Representation Guidelines authorize, on a caseby-case basis, the reimbursement of attorney\xe2\x80\x99s fees incurred by a current\nor former federal government employee interviewed as a witness in the\nMueller Investigation under threat of subpoena about information the\nperson acquired in the course of his government duties. We also conclude\nthat such a witness generally appears in his individual capacity for purposes of the Representation Guidelines. Finally, consistent with the De23\n\n\x0c44 Op. O.L.C. __ (Oct. 7, 2020)\n\npartment\xe2\x80\x99s treatment of Independent Counsel investigations, we conclude\nthat the United States generally has a strong interest in ensuring that its\nemployees have representation in connection with Special Counsel proceedings, which often will support reimbursing attorney\xe2\x80\x99s fees incurred by\nemployees interviewed as witnesses in such proceedings, and not as\nsubjects or targets.\nHENRY C. WHITAKER\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n24\n\n\x0c'


b'Residence Requirement for Assistant United\nStates Attorneys Under 28 U.S.C. \xc2\xa7 545(a)\nUnder 28 U.S.C. \xc2\xa7 545(a), Assistant United States Attorneys must physically reside in or\nwithin 25 miles of the district that they serve.\nNovember 20, 2012\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nEXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS\nFederal law provides that \xe2\x80\x9c[e]ach assistant United States attorney shall\nreside in the district for which he or she is appointed or within 25 miles\xe2\x80\x9d\nof that district. 28 U.S.C. \xc2\xa7 545(a) (2006). In 1979, we interpreted the\nphrase \xe2\x80\x9cshall reside\xe2\x80\x9d to require the \xe2\x80\x9cphysical presence\xe2\x80\x9d of Assistant\nUnited States Attorneys (\xe2\x80\x9cAUSAs\xe2\x80\x9d), reasoning that the ordinary meaning\nof the word \xe2\x80\x9cresidence\xe2\x80\x9d as well as the legislative history established\nCongress\xe2\x80\x99s intent to regulate where AUSAs could physically live while\nserving their districts. Assistant U.S. Attorney\xe2\x80\x94Residence Requirement\n(28 U.S.C. \xc2\xa7 545), 3 Op. O.L.C. 360 (1979) (\xe2\x80\x9c1979 Opinion\xe2\x80\x9d). You asked\nus to revisit the 1979 Opinion\xe2\x80\x99s reading of section 545(a) in light of\nadvances in technology that would make it possible for AUSAs to work\nremotely while living outside their districts. 1 Specifically, you asked\nwhether maintaining a \xe2\x80\x9cvirtual presence\xe2\x80\x9d in a district through a telework\narrangement could satisfy the section 545(a) residence requirement.\nAlthough we appreciate that telework capabilities now allow some\nAUSAs to perform their duties even while stationed more than 25 miles\nfrom their districts, we believe that the 1979 Opinion correctly interpreted\nthe statute and that AUSAs must physically reside in or within 25 miles of\nthe district that they serve. 2\n1 See Letter for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel,\nfrom Jay Macklin, General Counsel, Executive Office for United States Attorneys (Oct. 1,\n2012) (\xe2\x80\x9cEOUSA Letter\xe2\x80\x9d).\n2 The 1979 Opinion interpreted an earlier version of the statute, which required all\nAUSAs, save those serving in the District of Columbia and the Southern District of New\nYork, to reside within their appointing district. See 28 U.S.C. \xc2\xa7 545(a) (1976). The\ncurrent statute does not except AUSAs appointed for the District of Columbia and the\nSouthern District of New York from the residence requirement, but rather allows all\nAUSAs, regardless of district, to live \xe2\x80\x9cin . . . or within 25 miles\xe2\x80\x9d of the district they\n\n237\n\n\x0c36 Op. O.L.C. 237 (2012)\n\nI.\nSection 545(a) states in its entirety:\nEach United States attorney shall reside in the district for which\nhe is appointed, except that these officers of the District of Columbia, the Southern District of New York, and the Eastern District of\nNew York may reside within 20 miles thereof. Each assistant United\nStates attorney shall reside in the district for which he or she is appointed or within 25 miles thereof. The provisions of this subsection\nshall not apply to any United States attorney or assistant United\nStates attorney appointed for the Northern Mariana Islands who at\nthe same time is serving in the same capacity in another district. Pursuant to an order from the Attorney General or his designee, a United States attorney or an assistant United States attorney may be assigned dual or additional responsibilities that exempt such officer\nfrom the residency requirement in this subsection for a specific period as established by the order and subject to renewal.\nThe text indicates, in a number of ways, that Congress intended section\n545(a) to impose a physical residence requirement. To start, the statute\nfocuses on where AUSAs (and U.S. Attorneys) must \xe2\x80\x9creside\xe2\x80\x9d\xe2\x80\x94a word\nthat generally connotes physically living in a particular place. See Webster\xe2\x80\x99s Third New International Dictionary 1931 (1993) (to reside is \xe2\x80\x9cto\ndwell permanently or continuously: have a settled abode for a time: have\none\xe2\x80\x99s residence or domicile\xe2\x80\x9d); Random House Dictionary of the English\nLanguage 1648 (1987) (to reside is \xe2\x80\x9cto dwell permanently or for a considerable time\xe2\x80\x9d); see also Black\xe2\x80\x99s Law Dictionary 1423 (9th ed. 2009) (defining residence as \xe2\x80\x9c[t]he act or fact of living in a given place for some\ntime\xe2\x80\x9d; \xe2\x80\x9c[t]he place where one actually lives, as distinguished from a\ndomicile\xe2\x80\x9d; and \xe2\x80\x9cbodily presence as an inhabitant in a given place\xe2\x80\x9d).\nBeyond the use of the word \xe2\x80\x9creside,\xe2\x80\x9d the way the statute marks the\nbounds of the residence requirement also indicates that Congress intended\nto regulate physical presence. AUSAs must reside in \xe2\x80\x9cor within 25 miles\xe2\x80\x9d\nof the district they serve, and U.S. Attorneys for D.C. and for New York\xe2\x80\x99s\nserve. 28 U.S.C. \xc2\xa7 545(a) (2006). Despite this change, the statute\xe2\x80\x99s key phrase\xe2\x80\x94which\nrestricts where AUSAs \xe2\x80\x9cshall reside\xe2\x80\x9d\xe2\x80\x94has remained constant, and the 1979 Opinion\xe2\x80\x99s\nanalysis is therefore relevant to the amended statute.\n\n238\n\n\x0cResidence Requirement for Assistant United States Attorneys\n\nSouthern and Eastern Districts may live \xe2\x80\x9cwithin 20 miles\xe2\x80\x9d of their district.\n28 U.S.C. \xc2\xa7 545(a). By framing the residence requirements in terms of\npermissible geographic ranges, Congress indicated that it was using the\nphrase \xe2\x80\x9cshall reside\xe2\x80\x9d to specify where these federal attorneys must physically dwell.\nOther parts of section 545(a) reinforce this understanding of the residence requirement. The statute does not apply to federal attorneys \xe2\x80\x9cappointed for the Northern Mariana Islands who at the same time [are]\nserving in the same capacity in another district.\xe2\x80\x9d Id. Nor does it reach\nanyone to whom the Attorney General assigns \xe2\x80\x9cdual or additional responsibilities that exempt such officer from the residency requirement . . . for a\nspecific period.\xe2\x80\x9d Id. 3 If U.S. Attorneys and AUSAs could satisfy the\nrequirements of section 545(a) by maintaining a virtual presence in one\ndistrict while residing in another, these exceptions for those that take on\ndual roles in different districts would not be necessary. See Corley v.\nUnited States, 556 U.S. 303, 314 (2009) (A statute \xe2\x80\x9cshould be construed\nso that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.\xe2\x80\x9d (internal quotation marks\nomitted)). Based on this and the other textual indications discussed above,\nwe conclude that section 545(a) requires that AUSAs physically reside in\nor within 25 miles of the district they serve. 4\nSince 2008, Congress has prohibited the use of funds \xe2\x80\x9cfor the salary, benefits, or expenses of any United States Attorney assigned dual or additional responsibilities by the\nAttorney General . . . that exempt that United States Attorney from the residency requirements of 28 U.S.C. 545,\xe2\x80\x9d effectively rendering the dual-responsibilities exception inapplicable to U.S. Attorneys. Consolidated Appropriations Act, 2008, Pub. L. No. 110-161,\ndiv. B, \xc2\xa7 215, 121 Stat. 1844, 1915 (2007); see also Consolidated and Further Continuing\nAppropriations Act, 2012, Pub. L. No. 112-55, div. B, \xc2\xa7 214, 125 Stat. 552, 620 (2011)\n(same). By preventing U.S. Attorneys from taking on dual responsibilities that would take\nthem away from their home districts, this appropriations rider presumes that section\n545(a) regulates physical presence and further reinforces our reading of the statute.\n4 We would not read the residence requirement to apply to special attorneys appointed\nunder section 543 of title 28 of the U.S. Code, which authorizes \xe2\x80\x9c[t]he Attorney General\n[to] appoint attorneys to assist United States attorneys when the public interest so requires.\xe2\x80\x9d Even though special attorneys \xe2\x80\x9cassist\xe2\x80\x9d U.S. Attorneys, they are not the \xe2\x80\x9cassistant\nUnited States attorney[s]\xe2\x80\x9d to whom section 545(a) refers. Rather, section 545(a)\xe2\x80\x99s use of\nthe term \xe2\x80\x9cassistant United States attorneys\xe2\x80\x9d appears to be a reference only to attorneys\nappointed under section 542, which provides that \xe2\x80\x9c[t]he Attorney General may appoint\none or more assistant United States attorneys.\xe2\x80\x9d (Emphasis added.) We draw support for\n3\n\n239\n\n\x0c36 Op. O.L.C. 237 (2012)\n\nII.\nThe legislative history confirms that section 545(a) requires physical\nresidence. In 1896, when Congress first considered whether to authorize\nthe appointment of AUSAs (then \xe2\x80\x9cassistant district attorneys\xe2\x80\x9d), the draft\nlanguage did not include a residence requirement. Representative Johnson asked the bill sponsor whether assistants would need to be \xe2\x80\x9cactual\nresidents of the district\xe2\x80\x9d for which they are appointed. 28 Cong. Rec.\n2464 (1896). When the sponsor said no, Representative Johnson offered\nan ultimately successful amendment \xe2\x80\x9cfor the purpose of imposing a\nrestriction in that regard,\xe2\x80\x9d commenting that he did \xe2\x80\x9cnot think that there\nought to be anybody sent out to fill such positions in the State or Territory unless he lives there.\xe2\x80\x9d Id.; see also Act of May 28, 1896, ch. 252, 29\nStat. 140, 181 (providing that assistant district attorneys \xe2\x80\x9cmust be residents of the district for which they are appointed\xe2\x80\x9d).\nFloor statements from the debates on subsequent amendments to the\nstatute similarly indicate that Congress has long understood the statute\nto regulate physical presence. As your letter notes, EOUSA Letter at 2,\nthe 1979 Opinion relied in part on two statements made during the 1941\ndebate on amending the statute, the first of which explains that the thencurrent version of the statute required attorneys to \xe2\x80\x9cmove into the District and live in the District,\xe2\x80\x9d and the second of which states that it was\nin \xe2\x80\x9cthe best interest of the people whom [AUSAs] serve to require\n[AUSAs] to live among such people during their tenure of office.\xe2\x80\x9d See\n1979 Opinion, 3 Op. O.L.C. at 361; 87 Cong. Rec. 3269 (1941) (statements of Reps. McLaughlin and South). And when Congress considered\nanother amendment in 1979, the sponsor described section 545(a) as \xe2\x80\x9ca\ncodification of the policy that law enforcement officials should reside in\nthe same community in which they enforce the law.\xe2\x80\x9d 125 Cong. Rec.\n4164 (1979) (statement of Rep. DeConcini). We have found nothing in\nthe legislative history to suggest that Congress has ever understood the\nresidence requirement as anything other than a limit on where U.S.\nthat reading from floor statements made by the sponsor of the original AUSA residence\nrequirement. When asked whether the residence requirement would apply to \xe2\x80\x9ca special\nassistant,\xe2\x80\x9d the amendment\xe2\x80\x99s sponsor responded that the restriction was \xe2\x80\x9conly for regular\ndeputies, not the special deputies,\xe2\x80\x9d and that the Attorney General \xe2\x80\x9chas a right to employ\nspecial deputies at any time.\xe2\x80\x9d 28 Cong. Rec. 2465 (1896) (statement of Rep. Johnson).\n\n240\n\n\x0cResidence Requirement for Assistant United States Attorneys\n\nAttorneys and AUSAs may physically live, and we do not think the\ntechnological advances that make telework an option for some AUSAs\nundermine the current relevance of Congress\xe2\x80\x99s stated purpose.\nIII.\nWe recognize that permitting remote work arrangements like the one\nyou describe in your letter (through which an appellate attorney sought to\ntelework for two years while his spouse completed an overseas assignment) could assist the Department\xe2\x80\x99s retention efforts and alleviate potential difficulties arising from the hiring freeze.* And we are mindful that\ncurrent technology could \xe2\x80\x9censure the availability\xe2\x80\x9d of at least some attorneys\xe2\x80\x94and thereby achieve one of the important \xe2\x80\x9cpurpose[s] of the residency requirement\xe2\x80\x9d\xe2\x80\x94in ways that were not contemplated when Congress\npassed the first residence requirement in 1896, or even when we wrote the\n1979 Opinion cited above. See 1979 Opinion, 3 Op. O.L.C. at 361. We\nnevertheless believe that the text and legislative history require us to\nadhere to the 1979 Opinion\xe2\x80\x99s analysis\xe2\x80\x94an analysis that is consistent with\nother past readings of both section 545(a) and a similar residence requirement for circuit judges. See Memorandum for Philip H. Modlin,\nDirector, Executive Office for United States Attorneys, from Mary C.\nLawton, Deputy Assistant Attorney General, Office of Legal Counsel,\nResidence Requirement for U.S. Attorneys at 1 (July 11, 1974) (\xe2\x80\x9cLawton\nMemo\xe2\x80\x9d) (considering section 545(a) and suggesting that \xe2\x80\x9cit is accepted\nalmost without question that a public employee can be required to live in\nthe district in which he works\xe2\x80\x9d); Memorandum for Dennis Mullins, Deputy Assistant Attorney General, Office of Legal Policy, from Theodore B.\nOlson, Assistant Attorney General, Office of Legal Counsel, Re: Residency Requirements for Circuit Judges at 4 (Sept. 26, 1984) (advising that a\njudicial nominee \xe2\x80\x9cestablish his physical presence in California\xe2\x80\x9d to comply\nwith the requirement under 28 U.S.C. \xc2\xa7 44(c) that a circuit judge \xe2\x80\x9cbe a\nresident of the circuit for which appointed\xe2\x80\x9d); E-mail for Kurt Didier from\n* Editor\xe2\x80\x99s Note: The Department of Justice instituted a hiring freeze from 2011 to\n2014 in response to budgetary problems. See Dep\xe2\x80\x99t of Justice, Press Release, Attorney\nGeneral Holder Announces Justice Department to Lift Hiring Freeze (Feb. 10, 2014),\nhttps://www.justice.gov/opa/pr/attorney-general-holder-announces-justice-departmentlift-hiring-freeze.\n\n241\n\n\x0c36 Op. O.L.C. 237 (2012)\n\nDaniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: US Atty Residency Req\xe2\x80\x99t (Aug. 2, 2002, 10:46 AM) (adhering to the 1979 Opinion\xe2\x80\x99s interpretation of \xe2\x80\x9creside\xe2\x80\x9d to conclude that\n\xe2\x80\x9cpresence in the district seems to meet the statutory purpose\xe2\x80\x9d).\nThis is not to say that a U.S. Attorney could never approve an\nAUSA\xe2\x80\x99s request to telework away from the district in which he or she\nserves (and outside the 25-mile radius that the statute permits) for a\nreasonable period of time, subject to any requirements of the Department\xe2\x80\x99s Telework Policy. See DOJ Policy Statement 1200.01 (approved\non July 20, 2012), http://www.justice.gov/jmd/hr/doj1200-01.pdf. The\nresidence requirement, we have said, \xe2\x80\x9ccontemplates a home in which\n[AUSAs] are present most of the time,\xe2\x80\x9d not all of the time. Lawton\nMemo at 1. So while we do not think that an AUSA telecommuting\noverseas for a period of two years could fairly be considered \xe2\x80\x9cpresent\nmost of the time\xe2\x80\x9d in his home district, other, short-term telework arrangements would be permissible under the statute, as long as the AUSA\nusually has a physical presence in or within 25 miles of the appointing\ndistrict.\nVIRGINIA A. SEITZ\nAssistant Attorney General\nOffice of Legal Counsel\n\n242\n\n\x0c'


b'Applicability of 18 U.S.C. \xc2\xa7 219 to\nMembers of Federal Advisory Committees\nS ection 219(a) o f Title 18 o f the United S tates C ode applies to m em bers o f federal advisory\ncom m ittees, including the Advisory C om m ittee for T rade Policy and N egotiations, that are\ngoverned by th e Federal Advisory C om m ittee Act.\nSection 219(b) m ay be used to exem pt advisory com m ittee m em bers w ho are \xe2\x80\x9cspecial g o v ern \xc2\xad\nm ent em ployees,\xe2\x80\x9d but may not be used to exempt \xe2\x80\x9crepresentative\xe2\x80\x9d m em bers, w ho are generally\nnot co n sid ered governm ent em ployees.\nT he E m olum ents C lause prohibits an individual w ho is an agent o f a foreign governm ent from\nserving on an advisory com m ittee, unless C ongress has consented to such service.\n\nApril 29, 1991\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nDeputy Co u n sel\n\nto the\n\nP r e s id e n t\n\nThis responds to your request for our opinion whether 18 U.S.C. \xc2\xa7 219\napplies to members of federal advisory committees generally, and in particu\xc2\xad\nlar to the Advisory Committee for Trade Policy and Negotiations (\xe2\x80\x9cACTPN\xe2\x80\x9d)\nSection 219(a) makes it a criminal offense for a \xe2\x80\x9cpublic official\xe2\x80\x9d to be or to\nact as an agent of a foreign principal required to register under the Foreign\nAgents Registration Act of 1938 (\xe2\x80\x9cFARA\xe2\x80\x9d). We conclude that section 219(a)\napplies to members of federal advisory committees including ACTPN, that\nare governed by the Federal Advisory Committee Act.\nYou have also asked whether the certification procedure in section 219(b)\nmay be used to exempt members of federal advisory committees from the\ncriminal prohibition in section 219(a). Section 219(b) may be used to ex\xc2\xad\nem pt a d v iso ry com m ittee m em bers who are \xe2\x80\x9c sp ecial G o v ern m en t\nemployee[s],\xe2\x80\x9d but may not be used to exempt \xe2\x80\x9crepresentative\xe2\x80\x9d members,\nwho are generally not considered Government employees. Moreover, absent\ncongressional consent, the Emoluments Clause of the Constitution indepen\xc2\xad\ndently bars any agent of a foreign government \xe2\x80\x94 as opposed to an agent of\na private foreign entity \xe2\x80\x94 from being a member of a federal advisory com \xc2\xad\nmittee. Granting an advisory committee appointee an exemption under section\n219(b) would not satisfy the requirement of congressional consent.\nSection 219(a) provides criminal penalties for any \xe2\x80\x9cpublic official, [who]\n65\n\n\x0cis or acts as an agent of a foreign principal required to register under the\nForeign Agents Registration Act of 1938, as amended.\xe2\x80\x9d Section 219(c) de\xc2\xad\nfines \xe2\x80\x9cpublic official\xe2\x80\x9d as a Member of Congress \xe2\x80\x9cor an officer or employee\nor person acting for or on behalf of the United States, or any department,\nagency, or branch of Government thereof, . . . in any official function, under\nor by authority o f any such department, agency, or branch of Government.\xe2\x80\x9d\nM embers o f advisory committees governed by the Federal Advisory Com\xc2\xad\nm ittee Act (\xe2\x80\x9cFACA\xe2\x80\x9d) fall within this definition. FACA provides that advisory\ncommittees are established or utilized \xe2\x80\x9cin the interest of obtaining advice or\nrecommendations for the President or one or more agencies or officers of\nthe Federal Government.\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 3(2). Pursuant to FACA, a\ndesignated federal official calls all meetings of an advisory committee, ap\xc2\xad\nproves the agenda, chairs o r attends all meetings, and may adjourn any\nmeeting of the committee whenever he determines it to be in the public\ninterest. Id. \xc2\xa7 10(e), (f).1 Members of advisory committees subject to FACA\nthus perform their official advisory duties \xe2\x80\x9cfor\xe2\x80\x9d the Government and \xe2\x80\x9cun\xc2\xad\nd e r\xe2\x80\x9d a g o v ern m e n t agency, w ithin the m eaning o f sectio n 2 1 9 .2\n\xe2\x80\x9cRepresentative\xe2\x80\x9d members o f FACA committees \xe2\x80\x94 described in your re\xc2\xad\nquest as members who appear before an agency, at the agency\xe2\x80\x99s request, to\npresent the views of a private organization or interest \xe2\x80\x94 are also \xe2\x80\x9cpublic\nofficial[s]\xe2\x80\x9d within the meaning of section 219: even assuming that \xe2\x80\x9crepre\xc2\xad\nsentative\xe2\x80\x9d members are chosen for committee membership only to present\nthe views of a private interest, they nevertheless perform their official com\xc2\xad\nm ittee duties \xe2\x80\x9cfor\xe2\x80\x9d the United States.3\nACTPN, like most advisory committees, is subject to FACA, 19 U.S.C. \xc2\xa7\n2155(f), and on that basis we conclude that members of ACTPN are subject\nto section 219. ACTPN\xe2\x80\x99s specific functions reinforce that conclusion. ACTPN\nwas established to give \xe2\x80\x9coverall policy advice\xe2\x80\x9d on United States negotiating\nobjectives and bargaining positions in international trade negotiations. Id. \xc2\xa7\n2155(b)(1). ACTPN functions under the authority of the United States Trade\nRepresentative, an officer o f the United State Government. Id. \xc2\xa7 2155(b).\nAccordingly, it is clear that members of ACTPN perform \xe2\x80\x9cofficial function[s]\xe2\x80\x9d\nfor the United States \xe2\x80\x9cunder\xe2\x80\x9d a federal agency, and that they are therefore\n\xe2\x80\x9cpublic o ffic ia ls]\xe2\x80\x9d within the meaning of section 219.4\n1See also id. \xc2\xa7 9(c)(D ),(E), (F) (advisory committee charter must state \xe2\x80\x9cthe agency or official to whom\nthe com m ittee reports,\xe2\x80\x9d \xe2\x80\x9cthe agency responsible for providing the necessary support for the com m ittee,\xe2\x80\x9d\nand \xe2\x80\x9ca description o f the duties for which the committee is responsible\xe2\x80\x9d); id. \xc2\xa7 12(b) (agency is respon\xc2\xad\nsible for providing support services for advisory committees \xe2\x80\x9creporting to it\xe2\x80\x9d).\n2 T his conclusion is consistent with the judicial construction of the similar definition of \xe2\x80\x9cpublic offi\xc2\xad\ncial\xe2\x80\x9d in the federal bribery statute, 18 U.S C. \xc2\xa7 201(a), on which section 219 was modeled. See 130\nCong. Rec. 1295 (1984) (remarks of Sen. Demon). \xe2\x80\x9c[P]ublic official\xe2\x80\x9d in section 201(a) has been broadly\ninterpreted to include persons holding \xe2\x80\x9ca position of public trust with official federal responsibilities.\xe2\x80\x9d\nDixson v. U nited States, 465 U.S. 482, 496 (1984).\n3 Individuals who appear before agencies in a "representative\xe2\x80\x9d capacity who are not advisory com m it\xc2\xad\ntee m em bers are more properly viewed simply as witnesses. Such witnesses have no federal \xe2\x80\x9cofficial\nfunction" and are not \xe2\x80\x9cpublic officials]\xe2\x80\x9d within the meaning of section 219\n4 The same general principles govern the application o f section 219 to employees, and to partners, of\nContinued\n\n66\n\n\x0cThe certification procedure in section 219(b), by its terms, allows an\nexemption from section 219(a) only for individuals who are employed by\nthe Government as \xe2\x80\x9cspecial Government employee[s].\xe2\x80\x9d5 Persons who serve\non advisory committees as \xe2\x80\x9crepresentative\xe2\x80\x9d of private organizations gener\xc2\xad\nally are not considered \xe2\x80\x9cemployees\xe2\x80\x9d of the United States. See Memorandum\nfor C. Boyden Gray, Counsel to the President, from William P. Barr, Assis\xc2\xad\ntant Attorney General, Office of Legal Counsel at 2 n.5 (May 15, 1989).\nAccordingly, the certification procedure in section 219(b) is not available to\nexempt \xe2\x80\x9crepresentative\xe2\x80\x9d members of federal advisory committees from the\nprohibition in section 219(a).6 Any other member of ACTPN could, how\xc2\xad\never, be co n sid ered an \xe2\x80\x9cem ployee\xe2\x80\x9d o f the U nited S tates, s e e B arr\nMemorandum at 1-2 & n.5, and if the member serves no more than 130 days\nin any 365-day period, could be a \xe2\x80\x9cspecial Government employee\xe2\x80\x9d eligible\nfor exemption under section 219(b).\nThe Emoluments Clause of the Constitution, however, may constitute a\nbar to an individual\xe2\x80\x99s appointment to a federal advisory committee ab initio.\nThe Emoluments Clause provides that absent congressional consent, a per\xc2\xad\nson holding an \xe2\x80\x9cOffice of Profit or Trust\xe2\x80\x9d under the United States may not\nhold any position in, or receive any payment from, a foreign government.\nU.S. Const, art. I, \xc2\xa7 9, cl. 8.7\n4(....continued)\nadvisory committee members. We believe that an employee who assists a member only in matters that\nare not part of the m em ber\'s advisory committee duties is not subject to section 219. We cannot cat\xc2\xad\negorically conclude, however, that employees of advisory committee members may not be subject to\nsection 219 when they assist members in performing committee functions or duties. Cf. Dixson, 465\nU.S. at 490-96 (officers o f local social service corporation administering HUD program may be \xe2\x80\x9cpublic\nofficials" within meaning of bribery statute). Whether such persons are or are not subject to section 219\nwill depend upon the specific facts of each case.\nA partner of an advisory committee member is subject to section 219 only if the partner personally\nperforms official functions \xe2\x80\x9cfor" the United States. Conversely, section 219 does not im plicitly dis\xc2\xad\nqualify an individual from serving as an advisory committee member simply because a partner or a firm\nof which he is a m ember is required by FARA to register as the agent of a foreign principal. Rule 202\nof the FARA regulations provides that, where a firm or partnership has registered as an entity, a person\nwithin the firm or partnership who \xe2\x80\x9cdoes not engage directly in activity in furtherance o f the interests o f\nthe foreign principal is not required to file a short form registration statement." 28 C.F.R. \xc2\xa7 5.202(b).\n5 The term \xe2\x80\x9cspecial Governm ent employee\xe2\x80\x9d is not defined in section 219, but is defined in 18 U.S.C.\n\xc2\xa7 202(a) to include \xe2\x80\x9can officer or employee o f the executive . . . branch of the United States Govern\xc2\xad\nment, . . . who is retained, designated, appointed or employed to perform, with or without com pensa\xc2\xad\ntion, for not to exceed one hundred and thirty days during any period of three hundred and sixty-five\nconsecutive days, tem porary duties either on a full-time or intermittent basis.\xe2\x80\x9d Although section 202(a)\nprovides that this definition applies \xe2\x80\x9c[f]or the purpose of sections 203, 205, 207, 208, and 209,\xe2\x80\x9d we\nbelieve that the term \xe2\x80\x9cspecial Government employee" as used in section 219(b) must be understood to\nhave the same meaning.\n6 It would arguably be possible to bring "representative\xe2\x80\x9d members of advisory committees within the\nscope o f section 219(b), by formally designating them as special Government employees. Any such\ndesignation, however, might subject the designees to provisions of the criminal conflict-of-interest laws\nthat would otherwise not be applicable. See Barr Memorandum at 2-3.\n7 This restriction is in many respects narrower than the prohibition in section 219(a) Section 219(a)\napplies to all \xe2\x80\x9cpublic official[s],\xe2\x80\x9d a category defined to include some persons who do not hold a federal\nposition, whereas the Emoluments Clause applies only to persons who do hold such a position. M ore\xc2\xad\nover, section 219(a), in addition to prohibiting a public official from serving as the ageiit o f a foreign\ngovernment, also prohibits such service for certain nongovernmental foreign corporations, persons, and\npartnerships Thus, persons not in violation of the Emoluments Clause might nonetheless violate the\nprohibition in section 219(a).\n\n67\n\n\x0cFederal advisory committee members hold offices of profit or trust within\nthe meaning of the Emoluments Clause. They hold positions that are ex\xc2\xad\np re ssly created by federal authority, they are charged w ith federal\nresponsibilities, and they are often entrusted with access to government in\xc2\xad\nformation not available to the public. Therefore, the Emoluments Clause\neffectively prohibits an individual who is an agent of a foreign government\nfrom serving on an advisory committee, unless Congress has consented to\nsuch service. We are not aware of any provision of law that provides con\xc2\xad\ngressional consent to the service of foreign government agents on advisory\ncommittees. In particular, the certification procedure in section 219(b) does\nnot provide the required congressional consent because it is only a means of\nexemption from the criminal prohibition in section 219(a), and therefore\ncannot be read to satisfy the Emoluments Clause.\nDOUGLAS R. COX\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n68\n\n\x0c'