b'(Slip Opinion)\n\nAuthority of the Department of Health and Human\nServices to Pay for Private Counsel to Represent an\nEmployee Before Congressional Committees\nThe Department of Health and Human Services may pay for private counsel to represent\nan employee who has been subpoenaed to appear before the staff of two congressional\ncommittees for a deposition at which agency counsel is not permitted to be present.\nJanuary 18, 2017\n\nMEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL\nDEPARTMENT OF HEALTH AND HUMAN SERVICES\nYou have asked whether the Department of Health and Human Services\n(\xe2\x80\x9cHHS\xe2\x80\x9d) may pay for private counsel to represent an employee who has\nbeen subpoenaed to appear before the staff of two congressional committees for a deposition at which agency counsel is not permitted to be present. 1 We advised you orally that HHS has the authority to provide private\ncounsel and that the provision of counsel may be considered a necessary\nexpense that can be paid from the applicable HHS appropriation. This\nmemorandum memorializes and further explains the basis for that advice.\nIn brief, where a congressional committee questions an agency employee\nat a deposition or interview about actions performed within the scope of\nher employment, it may be in the agency\xe2\x80\x99s interest to provide private\ncounsel to represent the employee in her individual capacity when the\ncommittee prohibits counsel for the agency from attending the deposition\nor interview. An agency may thus retain and pay for such counsel if it has\nboth statutory authority and an available appropriation to do so, as we\nconclude HHS does, based on its representations regarding the circumstances here. In Part I, we discuss the factual background, including the\ncongressional procedures applicable to this deposition. In Part II, we set\nout the governing legal framework. In Part III, we apply this framework to\nthe facts at issue here.\n1 See Letter for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Margaret M. Dotzel, Acting General Counsel, Dep\xe2\x80\x99t of Health\nand Human Services (Aug. 24, 2016) (\xe2\x80\x9cHHS Letter\xe2\x80\x9d). In preparing this opinion, we also\nrequested and received the views of the Civil Division of the Department of Justice. See\nMemorandum for Ginger Anders, Deputy Assistant Attorney General, Office of Legal\nCounsel, from Kali N. Bracey, Deputy Assistant Attorney General, Torts Branch, Civil\nDivision, Dep\xe2\x80\x99t of Justice (Oct. 14, 2016).\n\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nI.\nA.\nWe understand that your question was prompted by a joint oversight\ninvestigation of the House Committee on Ways and Means and the House\nCommittee on Energy and Commerce (collectively, \xe2\x80\x9cthe Committees\xe2\x80\x9d)\ninto the system of cost-sharing reduction (\xe2\x80\x9cCSR\xe2\x80\x9d) payments implemented\nby HHS and the Department of the Treasury pursuant to the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119\n(2010) (\xe2\x80\x9cACA\xe2\x80\x9d). 2 As part of their oversight investigation, the Committees\nissued a subpoena to an HHS employee to appear for a deposition before\nCommittee staff relating to HHS\xe2\x80\x99s implementation of the CSR payments.\nWe understand from HHS that neither the Committees nor any Executive\nBranch entity has alleged or suggested that the subpoenaed employee\nengaged in any misconduct. We also understand from HHS that the information sought at the deposition is related to HHS\xe2\x80\x99s implementation of\nthe CSR payment program, including official actions taken by the employee and other Executive Branch personnel within the normal scope of\ntheir duties in the course of that implementation.\nAttached to the subpoena was a set of procedures governing the deposition. The procedures included a provision stating that agency \xe2\x80\x9c[w]itnesses\nmay be accompanied at a deposition by counsel to advise them of their\nrights,\xe2\x80\x9d but \xe2\x80\x9ccounsel for other persons, or for agencies under investigation, may not attend.\xe2\x80\x9d See 161 Cong. Rec. E21 (daily ed. Jan. 7, 2015)\n(Extensions of Remarks) (Rep. Sessions submitting the \xe2\x80\x9cProcedures for\nthe Use of Staff Deposition Authority\xe2\x80\x9d) (\xe2\x80\x9cDeposition Procedures\xe2\x80\x9d). The\nprocedures also mandate that an agency witness \xe2\x80\x9cmay refuse to answer\na question only to preserve a privilege.\xe2\x80\x9d Id. If a witness refuses to answer\na question to preserve a privilege, \xe2\x80\x9cthe chair of the committee may rule on\nany such objection after the deposition has adjourned.\xe2\x80\x9d Id. The chair may\nthen overrule the objection in writing and, with proper notice, \xe2\x80\x9corder[] a\nwitness to answer any question to which a privilege objection was\n\n2\n\nCSR payments are payments the government makes to insurers to offset the \xe2\x80\x9ccostsharing reductions\xe2\x80\x9d that insurers are required to provide under the ACA to eligible\nindividuals to reduce those individuals\xe2\x80\x99 deductibles, coinsurance, copayments, and similar\ncharges. See U.S. House of Representatives v. Burwell, 185 F. Supp. 3d 165, 171\xe2\x80\x9372\n(D.D.C. 2016) (describing the CSR payments).\n\n2\n\n\x0cAuthority to Pay for Private Counsel to Represent Employee Before Congress\n\nlodged\xe2\x80\x9d at a reconvened deposition. Id. \xe2\x80\x9cA deponent who refuses to\nanswer a question after being directed to answer by the chair in writing\nmay be subject to sanction.\xe2\x80\x9d Id.\nB.\nWhen congressional committees seek to question employees of an\nExecutive Branch agency in the course of a congressional oversight\ninquiry of the agency, the Executive Branch\xe2\x80\x99s longstanding general practice has been for agency attorneys to accompany the witnesses. 3 See\nRepresentation of White House Employees, 4B Op. O.L.C. 749, 754\n(1980) (\xe2\x80\x9c[L]egitimate governmental interests which arise whenever executive branch employees are called to testify before the Congress . . .\n[are] [o]rdinarily . . . monitored by agency counsel who accompany executive branch employees.\xe2\x80\x9d); Memorandum for the Deputy Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal\nCounsel, Re: Reimbursement of Anne M. Burford for Private Counsel\nFees at 1\xe2\x80\x932 (May 3, 1983) (\xe2\x80\x9cBurford I \xe2\x80\x9d). That practice reflects the significant Executive Branch interests implicated by the oversight process.\nThe employees\xe2\x80\x99 testimony occurs pursuant to the constitutionally mandated accommodation process, through which the Executive Branch provides\nto Congress information necessary to perform its legislative functions\nin a manner consistent with the Executive Branch\xe2\x80\x99s constitutional and\nstatutory responsibilities and confidentiality interests. See United States\nv. AT&T, 567 F.2d 121, 127, 130\xe2\x80\x9331 (D.C. Cir. 1977) (\xe2\x80\x9c[E]ach branch\nshould take cognizance of an implicit constitutional mandate to seek\noptimal accommodation through a realistic evaluation of the needs of the\nconflicting branches in the particular fact situation.\xe2\x80\x9d); Memorandum for\nthe Heads of Executive Departments and Agencies from President Ronald\nReagan, Re: Procedures Governing Responses to Congressional Requests\nfor Information at 1 (Nov. 4, 1982) (providing that the \xe2\x80\x9ctradition of accommodation should continue as the primary means of resolving conflicts\nbetween the Branches\xe2\x80\x9d). Attorneys from the agency historically have accompanied the agency\xe2\x80\x99s employees in order to protect Executive Branch\n3\n\nIn litigation, by contrast, the Department of Justice, under the supervision of the Attorney General, has the exclusive authority to represent the interests of the United States,\nexcept in situations covered by an express statutory exception. See 28 U.S.C. \xc2\xa7\xc2\xa7 516, 519;\n5 U.S.C. \xc2\xa7 3106; The Attorney General\xe2\x80\x99s Role as Chief Litigator for the United States,\n6 Op. O.L.C. 47, 47\xe2\x80\x9348 (1982).\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nconfidentiality and other institutional interests; to assist the employees in\nproviding clear, accurate, and complete information in response to a\ncongressional oversight inquiry; to support the employee in the face of\npotentially hostile questioning; and to ensure that any restrictions on the\nscope of the questioning are observed. 4\nIn this case and in some previous oversight inquiries, however, congressional committees have refused to permit agency counsel to accompany agency employees to protect Executive Branch interests at interviews\nor depositions. On such occasions, we have advised that the agency may\nconsider obtaining alternate counsel to represent either the agency or, if\nnecessary, the employee. Alternate counsel may be obtained either by\ndetailing attorneys from another government agency or\xe2\x80\x94as relevant\nhere\xe2\x80\x94by using appropriated funds to retain and pay for private counsel.\nWhen alternate counsel represents the agency, or represents the employee\nin her official capacity, counsel\xe2\x80\x99s client is the agency, not the employee. 5\nSee Burford I at 3 n.3 (\xe2\x80\x9c[S]uits or subpoenas against employees in their\n4 See, e.g., Reimbursing Justice Department Employees for Fees Incurred in Using\nPrivate Counsel Representation at Congressional Depositions, 14 Op. O.L.C. 132, 133\n(1990) (\xe2\x80\x9cReimbursing Justice Department Employees\xe2\x80\x9d) (the Department makes employees available \xe2\x80\x9c[i]n light of the oversight purpose of the [congressional] interviews\xe2\x80\x9d and\n\xe2\x80\x9cDepartment counsel or other representative will normally accompany the witness\xe2\x80\x9d in\nsuch interviews); Memorandum for Peter J. Wallison, Counsel to the President, from\nCharles J. Cooper, Assistant Attorney General, Office of Legal Counsel at 2 (Sept. 8,\n1986) (a policy requiring the presence of government counsel at congressional interviews\n\xe2\x80\x9cprotect[s] the confidentiality of privileged information\xe2\x80\x9d and \xe2\x80\x9censur[es] that any restrictions on the scope of the interview are observed by all parties\xe2\x80\x9d); Letter for Henry\nWaxman, Chairman, and Tom Davis, Ranking Minority Member, Committee on Oversight and Government Reform, U.S. House of Representatives, from Dinah Bear, General\nCounsel, Council on Environmental Quality, Executive Office of the President at 2 (Mar.\n12, 2007) (in an oversight deposition of a former employee the agency has \xe2\x80\x9ca strong\ninterest in ensuring that the information provided on its behalf is accurate, complete, and\ncorrect,\xe2\x80\x9d a \xe2\x80\x9cfundamental and well-recognized interest in ensuring that its personnel are\nnot pressed into revealing privileged information belonging to the Executive Branch,\xe2\x80\x9d and\n\xe2\x80\x9ca strong interest in providing reassurance and support to staff who are called to Congress\nto provide information about their work-related activities\xe2\x80\x9d).\n5 The attorney\xe2\x80\x99s fiduciary duties and obligations run to the entity on whose behalf the\nemployee is appearing, not to the employee herself. See Restatement (Third) of the Law\nGoverning Lawyers \xc2\xa7 97 cmt. c (Am. Law Inst. 2000) (\xe2\x80\x9cA lawyer who represents a\ngovernmental official in the person\xe2\x80\x99s public capacity must conduct the representation to\nadvance public interests as determined by appropriate governmental officers and not, if\ndifferent, the personal interests of the occupant of the office.\xe2\x80\x9d).\n\n4\n\n\x0cAuthority to Pay for Private Counsel to Represent Employee Before Congress\n\nofficial capacities are tantamount to suits or subpoenas against the government itself.\xe2\x80\x9d). When counsel represents the employee in her individual\ncapacity, by contrast, the attorney owes a fiduciary duty and a duty of\nconfidentiality to the employee, not the agency. This opinion addresses\nthe circumstances under which an agency may use appropriated funds to\npay counsel to represent the employee in her individual capacity. 6\nII.\nAppropriations law, prior opinions of this Office, and historical practice establish the legal framework governing an agency\xe2\x80\x99s ability to retain\nand pay for private counsel to represent its employees in a congressional\noversight inquiry. A review of these sources makes clear that an agency\nmay retain and pay for private counsel to represent an employee in a\ndeposition or interview before a congressional committee where three\nconditions are met. First, representation of the agency by agency counsel\nat the deposition must be inappropriate or impermissible. Second, representation by private counsel must be in the government\xe2\x80\x99s interest, and the\ngovernment may not pay fees incurred in representing the purely personal\ninterests of the employee. Third, the agency must have the organic statutory authority and an available appropriation to retain and pay for private\ncounsel.\nThe \xe2\x80\x9cbasic rule\xe2\x80\x9d governing the use of appropriated funds to pay for private counsel is that \xe2\x80\x9ca general appropriation may be used to pay any\nexpense that is necessary or incident to the achievement of the underlying\nobjectives for which the appropriation was made.\xe2\x80\x9d Indemnification of\nDepartment of Justice Employees, 10 Op. O.L.C. 6, 8 (1986) (quoting\nGeneral Accounting Office, Principles of Federal Appropriations Law\n3-12 to 3-15 (1st ed. 1982)). The Constitution directs that \xe2\x80\x9c[n]o Money\nshall be drawn from the Treasury, but in Consequence of Appropriations\nmade by Law.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 9, cl. 7. Congress has adopted several\nstatutes reflecting this constitutional principle, among them the Purpose\n\n6 You have not asked about, and we have not evaluated, the constitutional concerns\nthat may be raised by the Committees\xe2\x80\x99 prohibition on attendance by counsel representing\nthe agency. We do note, however, that such a prohibition could potentially undermine the\nExecutive Branch\xe2\x80\x99s ability to protect its confidentiality interests in the course of the\nconstitutionally mandated accommodation process, as well as the President\xe2\x80\x99s constitutional authority to consider and assert executive privilege where appropriate.\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nAct, 31 U.S.C. \xc2\xa7 1301(a), which the Comptroller General has described as\n\xe2\x80\x9cone of the cornerstones\xe2\x80\x9d of federal appropriations law. 1 Government\nAccountability Office, Principles of Federal Appropriations Law 4-6 (3d\ned. 2004) (\xe2\x80\x9cFederal Appropriations Law\xe2\x80\x9d). The Purpose Act provides that\n\xe2\x80\x9c[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.\xe2\x80\x9d 31 U.S.C.\n\xc2\xa7 1301(a); see also United States v. MacCollom, 426 U.S. 317, 321 (1976)\n(noting the \xe2\x80\x9cestablished rule\xe2\x80\x9d that \xe2\x80\x9cthe expenditure of public funds is\nproper only when authorized by Congress\xe2\x80\x9d). As this Office has previously\nrecognized, however, the Purpose Act \xe2\x80\x9cleaves federal agencies with\n\xe2\x80\x98considerable discretion in determining whether expenditures further the\nagency\xe2\x80\x99s authorized purposes and therefore constitute proper use of general or lump-sum appropriations.\xe2\x80\x99\xe2\x80\x9d State and Local Deputation of Federal\nLaw Enforcement Officers During Stafford Act Deployments, 35 Op.\nO.L.C. __, at *8 (Mar. 5, 2012) (\xe2\x80\x9cStafford Act Deployments\xe2\x80\x9d) (quoting\nUse of General Agency Appropriations to Purchase Employee Business\nCards, 21 Op. O.L.C. 150, 153 (1997)). \xe2\x80\x9cIf the agency believes that the\nexpenditure bears a logical relationship to the objectives of the general\nappropriation, and will make a direct contribution to the agency\xe2\x80\x99s mission, the appropriation may be used.\xe2\x80\x9d Indemnification of Department of\nJustice Employees, 10 Op. O.L.C. at 8; see also Indemnification of Treasury Department Officers and Employees, 15 Op. O.L.C. 57, 60 (1991)\n(noting that an expenditure is permissible if it \xe2\x80\x9cdirectly\xe2\x80\x9d or \xe2\x80\x9cincidentally\naccomplishes a specific congressional purpose\xe2\x80\x9d or \xe2\x80\x9cis generally necessary\nfor the realization of broader agency objectives covered by the appropriation\xe2\x80\x9d (internal quotation marks omitted)). 7\n\n7\n\nThis understanding of an agency\xe2\x80\x99s discretion under the Purpose Act and Constitution\nmirrors the conclusions of the Comptroller General. The Comptroller General has found\nan expenditure permissible as a necessary expense when the expenditure, among other\nthings, \xe2\x80\x9c\xe2\x80\x98bear[s] a logical relationship to the appropriation sought to be charged,\xe2\x80\x99\xe2\x80\x9d by\n\xe2\x80\x9c\xe2\x80\x98mak[ing] a direct contribution to carrying out either a specific appropriation or an\nauthorized agency function for which more general appropriations are available.\xe2\x80\x99\xe2\x80\x9d Stafford Act Deployments, 35 Op. O.L.C. at *8 (quoting 1 Federal Appropriations Law at\n4-21); see also Department of Homeland Security\xe2\x80\x94Use of Management Directorate\nAppropriations to Pay Costs of Component Agencies, B-307382, 2006 WL 2567514, at 4\n(Comp. Gen. Sept. 5, 2006) (\xe2\x80\x9cEven if a particular expenditure is not specifically provided\nfor in the appropriation, the expenditure may be permissible under the \xe2\x80\x98necessary expense\ndoctrine\xe2\x80\x99 if it will contribute materially to the effective accomplishment of the [agency]\nfunction.\xe2\x80\x9d). Although the legal interpretations and opinions of the Comptroller General\n\n6\n\n\x0cAuthority to Pay for Private Counsel to Represent Employee Before Congress\n\nIn the context of retention of private counsel, this Office has concluded\nthat the \xe2\x80\x9clogical relationship\xe2\x80\x9d standard may be met when the representation is in the government\xe2\x80\x99s interest, the employee is being questioned\nabout conduct performed within the scope of her employment, and agency\ncounsel is not available. In 1980, for instance, we concluded that the\nWhite House could use appropriated funds to retain private counsel to\naccompany White House employees to represent the government\xe2\x80\x99s interests when those employees testified about their official duties before a\nSenate committee. Representation of White House Employees, 4B Op.\nO.L.C. at 753\xe2\x80\x9355. We explained that \xe2\x80\x9cthere are . . . legitimate governmental interests which arise whenever executive branch employees are called\nto testify before the Congress,\xe2\x80\x9d id. at 754, including interests in defending\nofficial policies and protecting the government\xe2\x80\x99s confidentiality interests,\nid. at 753. We recognized that those interests are normally protected by\nagency counsel, but because the White House had acquiesced in the\nCommittee\xe2\x80\x99s demand that White House lawyers not serve as counsel, we\nconcluded that the White House could retain private counsel to represent\nthe government\xe2\x80\x99s interests. 8 Id. at 754.\nSimilarly, this Office, with the concurrence of the Civil Division, concluded in 1990 that the Department of Justice (\xe2\x80\x9cDOJ\xe2\x80\x9d or the \xe2\x80\x9cDepartment\xe2\x80\x9d) could reimburse its employees for expenses they incurred retain-\n\nare not binding on Executive Branch agencies, they \xe2\x80\x9coften provide helpful guidance on\nappropriations matters and related issues.\xe2\x80\x9d Stafford Act Deployments, 35 Op. O.L.C. at *9\nn.8 (internal quotation marks omitted).\n8 That inquiry is consistent with the analysis employed in opinions issued by the\nComptroller General. In a 1979 opinion, the Comptroller General approved the CIA\xe2\x80\x99s\nretention of a private attorney to represent an employee who was called to testify before\nCongress and required to defend himself before professional organizations regarding work\nhe performed within the scope of his employment. See Reimbursement by Central Intelligence Agency of Employee\xe2\x80\x99s Legal Fees, B-193712, 1979 WL 12508 (Comp. Gen. May\n24, 1979). In that opinion, the Comptroller General concluded that a general appropriation\nallowing the CIA to expend funds \xe2\x80\x9cfor purposes necessary to carry out its functions\xe2\x80\x9d\npermitted the agency to reimburse the employee for his legal fees, because the conduct\nabout which the employee was questioned \xe2\x80\x9cwas in furtherance of an agency function\xe2\x80\x9d and\n\xe2\x80\x9cnecessary to carry out the Agency\xe2\x80\x99s functions.\xe2\x80\x9d Id. at 2. In a later opinion, the Comptroller General concluded that, where agency counsel was not available, private counsel could\nbe permissibly retained when \xe2\x80\x9crepresentation of the employee is in the Government\xe2\x80\x99s\ninterest,\xe2\x80\x9d and the employee \xe2\x80\x9cperformed the conduct in issue within the scope of his\nemployment.\xe2\x80\x9d International Trade Commission\xe2\x80\x94Legal Representation, 61 Comp. Gen.\n515, 516 (1982).\n\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\ning private counsel to represent them in their official capacities in depositions before a congressional committee. Reimbursing Justice Department\nEmployees, 14 Op. O.L.C. at 137\xe2\x80\x9338. We explained that the committee\xe2\x80\x99s\nrules prohibited agency counsel from attending the depositions, id. at\n133\xe2\x80\x9334, and that there were \xe2\x80\x9csufficient governmental interests . . . at stake\nin all of the depositions to justify representation by Department counsel\xe2\x80\x94\nand when the Committee objected to the presence of Department counsel,\nrepresentation by private counsel paid for by the Department.\xe2\x80\x9d Id. at 137.\nWe also noted that the employees\xe2\x80\x99 testimony pertained to their official\nduties. Id. at 133\xe2\x80\x9334. In light of those considerations, we concluded that\nDOJ could use appropriated funds to reimburse the employees for legal\nfees incurred in connection with private counsel retained to represent\nthem in their official capacities. Id. at 135 (\xe2\x80\x9cA number of opinions of this\nOffice specifically hold that where Department representation would\nordinarily be provided in a congressional investigation but is inappropriate under the specific circumstances, the Department may reimburse a\ngovernment employee for legal fees incurred using private counsel.\xe2\x80\x9d).\nWe have also concluded that in certain circumstances, it may be in the\ngovernment\xe2\x80\x99s interest to pay for private counsel to represent an employee\nin her individual capacity in her testimony before congressional committees. In two memoranda written in 1983 and 1984, we stated that the EPA\ncould use appropriated funds to reimburse former EPA Administrator\nAnne Burford for fees incurred by private counsel she had retained\nto represent her in her individual capacity in a congressional oversight\ninquiry. Burford I at 1; Memorandum for James A. Barnes, General\nCounsel, Environmental Protection Agency, from Theodore B. Olson,\nAssistant Attorney General, Office of Legal Counsel, Re: Payment of\nPrivate Counsel Fees Incurred by Anne M. Burford at 1 (Mar. 12, 1984)\n(\xe2\x80\x9cBurford II \xe2\x80\x9d). In reaching that conclusion, we looked to the Department\xe2\x80\x99s regulations governing the provision of individual-capacity representation to federal employees as a guide. 9 Burford I at 3\xe2\x80\x934 & n.3.\nWe noted that those regulations, consistent with the analysis described\nabove, provide that representation is appropriate where \xe2\x80\x9c1) the employee\nwas acting in the scope of his employment and 2) representation is in the\ninterest of the United States.\xe2\x80\x9d Id. at 4; see 28 C.F.R. \xc2\xa7\xc2\xa7 50.15, 50.16.\n\n9 We noted, however, that the DOJ regulations did \xe2\x80\x9cnot necessarily bind the EPA.\xe2\x80\x9d\nBurford I at 3\xe2\x80\x934 n.3.\n\n8\n\n\x0cAuthority to Pay for Private Counsel to Represent Employee Before Congress\n\nWith respect to the government-interest inquiry, we stated that \xe2\x80\x9cit is\nnormally presumed to be in the interest of the United States to provide\nrepresentation for employees sued (or subpoenaed) for acts performed\nwithin the scope of their employment.\xe2\x80\x9d Burford I at 4 n.4. We therefore\nconcluded that the regulations\xe2\x80\x99 threshold requirements for representation\nwere met. Id. As a result, the regulations contemplated that DOJ ordinarily would provide representation by agency attorneys, \xe2\x80\x9cunless one of\nseveral conflicts of interest\xe2\x80\x9d was present, in which case DOJ could retain\nprivate counsel to represent the employee. Id. at 4\xe2\x80\x935. In Ms. Burford\xe2\x80\x99s\ncase, we observed, DOJ attorneys were unable to represent her before the\ncongressional committees because of an \xe2\x80\x9capparent conflict\xe2\x80\x9d arising from\nthe Department\xe2\x80\x99s investigation into the conduct that was the subject of the\nhearing. Id. at 3. Because representation by government counsel was\ninappropriate, and providing private representation for Ms. Burford in\nconnection with her testimony about her official duties was in the government\xe2\x80\x99s interest, we concluded that the EPA could reimburse her for\nfees incurred by private counsel. Id. at 7. In our second memorandum\nconcerning the Burford matter, we reaffirmed that \xe2\x80\x9cthe retention of private counsel to represent [Ms. Burford] before congressional committees\nwould have been and continues to be within the lawful authority of the\nEPA and the Department of Justice.\xe2\x80\x9d Burford II at 5.\nIn determining whether and to what extent providing representation is\nin the government\xe2\x80\x99s interests, our Office has repeatedly emphasized the\nneed to distinguish between government interests and personal interests.\nSee Representation of White House Employees, 4B Op. O.L.C. at 754\xe2\x80\x9355\n(\xe2\x80\x9cAlthough it can become difficult to distinguish between personal and\ngovernmental interests, this point is one of considerable importance.\xe2\x80\x9d).\nThis need arises, in part, because general appropriations are available to\npay for private counsel only when doing so is necessary to the furtherance\nof government interests; they are not available to pay for representation of\npurely private interests. See id. at 753; see also Smithsonian Institution\nUse of Appropriated Funds for Legal Representation of Officers and\nEmployees, 70 Comp. Gen. 647, 649 (1991) (\xe2\x80\x9cIt is well-established that\nfederal funds may not be used to reimburse a government employee for\nlegal fees incurred in connection with matters of personal, rather than\nofficial, interest.\xe2\x80\x9d).\nThe existence of personal interests, however, \xe2\x80\x9cdoes not automatically\npreempt a legitimate government interest\xe2\x80\x9d; \xe2\x80\x9c[t]he two may exist side-by9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nside.\xe2\x80\x9d 1 Federal Appropriations Law at 4-58. In the case of representation\nbefore a congressional committee, we have recognized that \xe2\x80\x9cthe official\nand personal interests of employees may overlap to a large extent.\xe2\x80\x9d Representation of White House Employees, 4B Op. O.L.C. at 753. The \xe2\x80\x9cinterests in presenting information correctly and clearly\xe2\x80\x9d in congressional\nproceedings \xe2\x80\x9care both personal and governmental.\xe2\x80\x9d Id. By contrast, the\nemployee\xe2\x80\x99s interests \xe2\x80\x9cin avoiding federal criminal prosecution, civil\nliability to the United States or adverse action by a federal agency\xe2\x80\x9d are\n\xe2\x80\x9cpurely personal,\xe2\x80\x9d and the Executive Branch\xe2\x80\x99s interests in \xe2\x80\x9casserting a\ngovernmental privilege [and] defending official policies and procedures\xe2\x80\x9d\nare \xe2\x80\x9centirely governmental.\xe2\x80\x9d Id. Although congressional testimony thus\nmay implicate both government and personal interests, we have opined\nthat \xe2\x80\x9cany personal interests are merely incidental to the governmental\ninterests\xe2\x80\x9d when it has appeared that there was no \xe2\x80\x9cpersonal or official\nwrong-doing of which the [testifying] employees could fairly be accused.\xe2\x80\x9d\nReimbursing Justice Department Employees, 14 Op. O.L.C. at 137. We\nexplained:\nLike all witnesses before Congress, the employees have \xe2\x80\x9cpersonal\xe2\x80\x9d\ninterests such as being treated fairly, having a full and fair opportunity to respond, and avoiding being made an unfair target of congressional criticism; beyond that, these witnesses are appearing\nbefore Congress only because they did their jobs as Department\nemployees. These personal interests would not appear to be of the\nkind this Office has previously identified as \xe2\x80\x9cpurely personal.\xe2\x80\x9d\nId. We therefore concluded that despite the presence of incidental personal interests, sufficient government interests were at stake to justify\npaying for representation for the employee. Id. The Department\xe2\x80\x99s regulations governing the retention of private counsel rely on this distinction\nas well, prohibiting reimbursement of expenses incurred for \xe2\x80\x9clegal work\nthat advances only the individual interests of the employee.\xe2\x80\x9d 10 28 C.F.R.\n\xc2\xa7 50.16(d).\n\n10 The Civil Division has informed us that it does not interpret these regulations to\napply to a federal employee who appears as a witness before Congress or in civil litigation, except in circumstances in which the witness is also a defendant in a related civil suit\nor faces other potential adverse legal consequences related to the actions about which they\nface questioning. As a result, representation of a federal employee in her individual\ncapacity by DOJ attorneys is available only when the individual faces a personal risk of\n\n10\n\n\x0cAuthority to Pay for Private Counsel to Represent Employee Before Congress\n\nIII.\nUnder the principles established in these precedents, we conclude, as\nwe previously advised you, that HHS may retain and pay for private\ncounsel to represent its employee at the deposition before the Committees.\nUnder the circumstances as you have described them to us, the three\nconditions set forth above have been satisfied. The Committees have\nprohibited HHS from providing agency counsel or any other attorneys\nrepresenting the agency (i.e., substitute agency counsel) to accompany the\nemployee. HHS has determined that providing individual representation\nof the HHS employee in these circumstances furthers important government interests and that doing so will not involve paying for counsel to\nrepresent the purely personal interests of the employee. And HHS has\nboth organic statutory authority and an available appropriation to retain\nand pay for private counsel to represent the individual employee.\nA.\nFirst, under the procedures that govern a deposition conducted by the\nCommittees, neither HHS nor any substitute agency counsel is permitted\nto represent the agency at the deposition. As we have explained, HHS\ncounsel would ordinarily represent HHS at a congressional proceeding in\nwhich an employee was providing testimony about the agency\xe2\x80\x99s implementation of the CSR program and her own involvement in that implementation in the course of her official duties. But here, HHS attorneys are\nnot permitted to perform this function because \xe2\x80\x9ccounsel . . . for agencies\nunder investigation may not attend\xe2\x80\x9d the deposition. See Deposition Procedures.\nOur writings suggest that when a congressional committee has prohibited counsel from a particular agency from attending an interview of an\nagency employee, either an attorney from another government agency or\nprivate counsel may substitute for agency counsel, accompanying the\nemployee to the interview to represent the government\xe2\x80\x99s interests. See\nRepresentation of White House Employees, 4B Op. O.L.C. at 754; Reimbursing Justice Department Employees, 14 Op. O.L.C. at 134. That ar-\n\ncivil liability or other adverse legal consequences as a result of actions taken within the\nscope of her employment, and the Attorney General or her delegee determines that such\nrepresentation is in the government\xe2\x80\x99s interest. See 28 C.F.R. \xc2\xa7\xc2\xa7 50.15, 50.16.\n\n11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nrangement, however, also appears to be prohibited by the Committees\xe2\x80\x99\ndeposition procedures. Outside counsel substituting for HHS attorneys at\nthe deposition would be representing the agency, not the individual. See\nRepresentation of White House Employees, 4B Op. O.L.C. at 755 (substitute agency counsel \xe2\x80\x9cmust clearly understand that he is the Government\xe2\x80\x99s\nlawyer and not private counsel for the represented employee\xe2\x80\x9d). The attorney would be acting as substitute \xe2\x80\x9ccounsel . . . for [the] agenc[y] under\ninvestigation,\xe2\x80\x9d and thus would be barred by the Committees\xe2\x80\x99 procedures. 11 See Deposition Procedures. The Committees\xe2\x80\x99 procedures thus\npreclude HHS from accompanying its employee to the deposition to\nrepresent the agency\xe2\x80\x99s interests and preclude HHS from arranging for any\noutside counsel, whether from within the Executive Branch or from private practice, to accompany its employee to represent the agency\xe2\x80\x99s interests.\n\n11\n\nCounsel representing the individual employee in her \xe2\x80\x9cofficial capacity\xe2\x80\x9d would be\nbarred by the Committees\xe2\x80\x99 procedures for the same reason. As discussed, counsel who\nrepresents an employee in her official capacity would also be acting as \xe2\x80\x9ccounsel . . . for\n[the] agenc[y],\xe2\x80\x9d see supra note 5, and would be prohibited from attending the deposition\nunder the Committees\xe2\x80\x99 procedures as we understand them. Cf. Kentucky v. Graham, 473\nU.S. 159, 166 (1985) (\xe2\x80\x9c[A]n official-capacity suit is, in all respects other than name, to be\ntreated as a suit against the entity.\xe2\x80\x9d); Larson v. Domestic & Foreign Commerce Corp.,\n337 U.S. 682, 703\xe2\x80\x9304 (1949) (holding that a suit against a government employee was\nbarred by sovereign immunity because the action at issue was \xe2\x80\x9cwithin [the officer\xe2\x80\x99s]\nauthority\xe2\x80\x9d as a government official and \xe2\x80\x9cinescapably the action of the United States\xe2\x80\x9d).\nAs suggested earlier, in the context of \xe2\x80\x9crepresentation in connection with Congressional subpoenas,\xe2\x80\x9d we have opined that the \xe2\x80\x9cdistinction between official capacity and individual capacity is difficult to make\xe2\x80\x9d because an employee\xe2\x80\x99s appearance before a congressional committee may \xe2\x80\x9ccontain[] elements of both individual and governmental representation.\xe2\x80\x9d Burford I at 3\xe2\x80\x934 n.3. Here, the Committees\xe2\x80\x99 deposition procedures do not\nallow for official-capacity representation, so any attorney retained by HHS must provide\nindividual-capacity representation, pursuant to which the attorney owes duties of loyalty\nand confidentiality to the employee, not the agency. To be sure, the employee arguably\ncould be said to be testifying in her official capacity. The Civil Division has informed us\nthat it considers employees who are called to testify about their official duties, but who\notherwise do not face individual liability in damages or some other personal legal jeopardy, to testify in their official capacities. By allowing only individual-capacity representation, however, the Committees\xe2\x80\x99 deposition procedures make it unnecessary to resolve\nwhether the HHS employee has been subpoenaed to testify in her individual or official\ncapacity. As noted above, therefore, this opinion addresses only whether HHS may\nprovide individual-capacity representation to its employee, the same situation we addressed in the two Burford memoranda. See Burford I at 3\xe2\x80\x934 & n.3; Burford II at 3\xe2\x80\x934.\n\n12\n\n\x0cAuthority to Pay for Private Counsel to Represent Employee Before Congress\n\nB.\nSecond, it is reasonable for HHS to conclude that the provision of\nindividual-capacity representation to the HHS employee is in the government\xe2\x80\x99s interest because she has been subpoenaed by the Committees to\ntestify regarding actions taken in the course of her official duties, and she\nlacks the sort of purely personal interests that would preclude representation at government expense. The important government interests furthered\nby the representation include ensuring that the employee provides accurate and complete information, protecting her from inadvertently disclosing confidential information that she is not authorized to disclose, protecting her from questioning outside the scope of the deposition, supporting\nher in the face of potentially hostile questions from the Committees and\ntheir staffs, and preventing her from incurring substantial legal fees as a\nresult of acts taken in the performance of her duties on behalf of the\nagency. As we have explained, it is \xe2\x80\x9cnormally presumed to be in the\ninterest of the United States to provide representation for employees sued\n(or subpoenaed) for acts performed within the scope of their employment.\xe2\x80\x9d Burford I at 4 n.4. These employees \xe2\x80\x9care appearing before Congress only because they did their jobs,\xe2\x80\x9d Reimbursing Justice Department\nEmployees, 14 Op. O.L.C. at 137, and the government has an interest in\nproviding them representation\xe2\x80\x94even when the representation pertains to\nthe employee\xe2\x80\x99s individual capacity, see Burford I at 4\xe2\x80\x935 & nn.3\xe2\x80\x934.\nIn particular, providing individual-capacity representation furthers\nHHS\xe2\x80\x99s interest in protecting its employees from the burden of undergoing\npotentially hostile questioning and incurring legal fees as a result of\nactions taken in good faith on behalf of the agency. Our Office, the\nComptroller General, and the Supreme Court have recognized on numerous occasions that forcing federal employees to defend themselves against\nthe burdens of civil litigation and incur legal fees in doing so may chill\nthe employees\xe2\x80\x99 exercise of their official duties. See, e.g., Indemnification\nof Treasury Department Officers and Employees, 15 Op. O.L.C. at 61\xe2\x80\x9363\n(collecting authorities). As a result, providing counsel to employees\nfacing such burdens serves important government interests in ensuring\nthat Executive Branch employees acting in good faith may discharge their\nofficial duties and discretionary functions rigorously, without concern\nabout potential reprisals or legal fees. See Department of Justice Authority\nto Represent the Secretary of Housing and Urban Development in Certain\nPotential Suits, 31 Op. O.L.C. 212, 216 (2007) (\xe2\x80\x9c[T]he United States has\n13\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nan interest in defending an officer from suits arising from the faithful\ndischarge of his statutory responsibilities . . . because it would be protecting an officer from the potential burden of litigation arising out of his\nservice.\xe2\x80\x9d); see also Fees of District Attorneys, 9 Op. Att\xe2\x80\x99y Gen. 146, 148\n(1858) (\xe2\x80\x9cWhen a[n] . . . executive officer is sued for an act done in the\nlawful discharge of his duty, the government which employed him is\nbound, in conscience and honor, to stand between him and the consequences.\xe2\x80\x9d).\nAlthough an employee subpoenaed to appear before a congressional\ncommittee for a deposition is not subject to civil liability, the proceeding\nnonetheless may be burdensome, and providing representation may further the government\xe2\x80\x99s interest in protecting the employee from that burden. Without counsel paid for by the agency, the employee would have to\nincur legal fees to have any representation. See Memorandum for Dick\nThornburgh, Attorney General, and Stuart E. Schiffer, Acting Assistant\nAttorney General, Civil Division, from William P. Barr, Assistant Attorney General, Office of Legal Counsel, Re: Reimbursement of Attorney\nFees for Private Counsel Representing Former Government Officials in\nFederal Criminal Proceedings at 18 (Oct. 19, 1989) (\xe2\x80\x9c[The employee]\nwas caught in a power struggle between Congress and the executive\nbranch. Such policy disputes are frequent, and should not invoke the\nspecter of personal liability for attorneys[\xe2\x80\x99] fees for Administration officials simply, and properly, doing their jobs. The potential for abuse in\nsuch circumstances is profound.\xe2\x80\x9d). Proceeding without representation\nwould leave the employee to defend herself against potentially hostile\nquestioning without any legal advocate\xe2\x80\x94in a setting in which there is no\nneutral magistrate to moderate the parties\xe2\x80\x99 conduct or adjudicate objections. The government has an interest in providing representation to such\nan employee. That is particularly true when the agency instructs the\nemployee not to answer certain questions in order to protect the Executive\nBranch\xe2\x80\x99s privileges and confidentiality interests, as it is the employee who\nultimately faces the potential for sanctions as a result. 12\n\n12\n\nIf the proceedings, including the potential for sanctions, evolve in a manner that\ngives rise to a conflict between the interests of the government and the employee, such\nthat further representation is not in the government\xe2\x80\x99s interests, the agency may no longer\npay for private counsel. See Representation of White House Employees, 4B Op. O.L.C. at\n754; cf. 28 C.F.R. \xc2\xa7 50.16(c)(2) (\xe2\x80\x9cFederal payment to private counsel for an employee\n\n14\n\n\x0cAuthority to Pay for Private Counsel to Represent Employee Before Congress\n\nPrivate counsel representing the individual may also indirectly further\nthe government\xe2\x80\x99s confidentiality interests. Cf. Department of Justice\nFunding of Representation of Victims in Connection with a West German\nProsecution, 12 Op. O.L.C. 105, 107 (1988) (\xe2\x80\x9c[T]he existence vel non of\na governmental interest in this case should not depend on the fact that the\ncounsel we retain will technically be representing a private party, as\nopposed to the United States government itself.\xe2\x80\x9d). To be sure, counsel\nrepresenting the individual cannot fully protect those interests, as she may\nnot assert government privileges and ultimately owes fiduciary duties to\nthe individual employee, not the agency. See Representation of White\nHouse Employees, 4B Op. O.L.C. at 754\xe2\x80\x9355. But that does not preclude\nprivate counsel from consulting with agency attorneys before or during\nthe interview to understand where the government\xe2\x80\x99s confidentiality interests lie and what information the employee is authorized to disclose.\nBecause the employee\xe2\x80\x99s testimony relates only to official actions taken in\nthe scope of her employment, the information at issue in her testimony is\nagency information, not information that is personal to the employee. The\nExecutive Branch controls the dissemination of such information. See\nAuthority of Agency Officials to Prohibit Employees from Providing\nInformation to Congress, 28 Op. O.L.C. 79, 80\xe2\x80\x9382 (2004). Agencies have\na longstanding practice of working with employees and former employees\nand, when necessary, their counsel, in the course of responding to congressional oversight requests about agency information. As long as the\nemployee\xe2\x80\x99s and the agency\xe2\x80\x99s interests remain aligned, nothing about the\nattorney-client relationship between the private counsel and the employee\nprevents private counsel from working with agency counsel to understand\nthe agency\xe2\x80\x99s positions about the oversight inquiry, the proper scope of the\ndeposition or interview, and the potential confidentiality interests implicated by the requested testimony. Private counsel also may convey agency\npositions or requests to committee staff.\nFor all of these reasons, we continue to follow the view expressed in\nour 1983 Burford I memorandum that it is ordinarily in the interest of the\nUnited States to provide individual-capacity representation for an employee subpoenaed to testify before congressional committees about acts\nperformed within the scope of her employment. Burford I at 4 n.4. That\n\nwill cease if . . . the Department of Justice . . . [d]etermines that continued representation\nis not in the interest of the United States.\xe2\x80\x9d).\n\n15\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\npresumption applies here because, as we understand the circumstances,\nthe acts that are the basis for the Committees\xe2\x80\x99 subpoena were performed\nwithin the scope of the employee\xe2\x80\x99s official duties.\nThe normal presumption may not apply where the employee is also the\nsubject of a criminal investigation, has potential civil liability to the\nUnited States, or is subject to any adverse action by a federal agency on\nthe basis of the actions under investigation by the congressional committee. See Representation of White House Employees, 4B Op. O.L.C. at\n750\xe2\x80\x9353; see also supra Part II. It is our understanding from HHS that\nnone of these circumstances applies to the subpoenaed employee. Thus,\nthe individual employee does not have any \xe2\x80\x9cpurely personal\xe2\x80\x9d interests in\nthis matter that would preclude the provision of representation at government expense under our previous opinions. The employee does have\nthe kind of \xe2\x80\x9cpersonal\xe2\x80\x9d interests described in our 1990 Reimbursing Department of Justice Employees opinion, including \xe2\x80\x9cavoiding being made\nan unfair target of congressional criticism,\xe2\x80\x9d having an opportunity to\nrespond fully to questions, and avoiding possible sanctions under the\ncongressional procedures for refusing to answer the Committees\xe2\x80\x99 questions. 14 Op. O.L.C. at 137. But, as we explained in that opinion, these\ninterests are not \xe2\x80\x9cpurely personal\xe2\x80\x9d; they are \xe2\x80\x9cincidental\xe2\x80\x9d to, and in many\ncases overlap with, the substantial government interests implicated by\na deposition before congressional committees relating solely to acts taken\nin the course of the employee\xe2\x80\x99s official duties. Id. Where, as here, the\nindividual employee has only incidental personal interests that largely\noverlap with the government interests in supporting, informing, and\nprotecting agency employees when they are compelled to testify about\ntheir official duties, we conclude that providing the employee with individual representation is permissible, and an expense that an agency may\nconsider necessary to the performance of important agency functions.\nC.\nWe also conclude that HHS has the statutory authority and an available\nappropriation to retain and pay for private counsel to represent its employee in the Committees\xe2\x80\x99 deposition. 13 HHS, like other federal agencies,\n13 You asked for our legal advice about whether HHS may pay for private counsel to\nrepresent its employee. Organic statutory authority and an available appropriation to use\nthat authority are necessary for the agency to retain private counsel, which is the issue we\n\n16\n\n\x0cAuthority to Pay for Private Counsel to Represent Employee Before Congress\n\nmay \xe2\x80\x9cprocure by contract the temporary . . . or intermittent services of\nexperts or consultants or an organization thereof \xe2\x80\x9d if that procurement is\n\xe2\x80\x9cauthorized by an appropriation or other statute.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3109(b); see\nBurford I at 6 n.7 (noting the possibility of utilizing section 3109 to retain\nprivate counsel); Use of White House Funds for Payment of Consultants\nto Assist Presidential Nominee to Regulatory Agency at Confirmation\nHearing, 2 Op. O.L.C. 376, 377 (1977) (\xe2\x80\x9cUse of White House Funds\xe2\x80\x9d)\n(section 3109 \xe2\x80\x9cwould thus appear to encompass the employment of outside counsel to assist the nominee if, in your judgment, this would provide\nexpert or professional services not available within the White House\nOffice\xe2\x80\x9d). 14 Although we have advised in a similar context that section\n3109 alone \xe2\x80\x9cdo[es] not . . . provide the substantive authority\xe2\x80\x9d to hire\nprivate counsel, we recognized that it does \xe2\x80\x9cprovide a method of procedure for carrying into effect powers elsewhere granted.\xe2\x80\x9d Providing Representation for Federal Employees Under Investigation by the Inspector\nGeneral, 4B Op. O.L.C. 693, 695 (1980); see also 1 Federal Appropriations Law at 4-14 (section 3109 itself \xe2\x80\x9cdoes not authorize an agency to\nspend general operating appropriations to hire consultants,\xe2\x80\x9d but requires a\nspecific authorizing appropriation or statute). Section 3109 thus allows\nan agency to procure the services of an expert or consultant where a\ncondition precedent is met: when that procurement is \xe2\x80\x9cauthorized by an\nappropriation or other statute.\xe2\x80\x9d See HHS Letter at 3 (noting that section\n3109 is \xe2\x80\x9cbest regarded as a type of appointment mechanism for certain\n\nanalyze in this section. However, if the agency lacks such organic authority, but determines that private representation would be in the government\xe2\x80\x99s interest, the agency may\nbe able to reimburse its employee for private counsel expenses as \xe2\x80\x9cnecessary expenses\xe2\x80\x9d\nincurred in furtherance of agency functions. See Burford II at 5. As we explained in the\nBurford matter, however, it would be preferable for the agency to contract directly with\nthe private attorney because doing so \xe2\x80\x9cenables the agency to retain control over the terms\nof the contract, instead of leaving the negotiation of contract terms to individual employees.\xe2\x80\x9d Id. at 6.\n14 The use of section 3109 is permissible only where agency employees are not able to\nperform the function for which the expert is retained. See 5 C.F.R. \xc2\xa7 304.103(b)(3)\xe2\x80\x93(5)\n(prohibiting the use of section 3109 to appoint an expert or consultant to \xe2\x80\x9cfunction in the\nagency chain of command,\xe2\x80\x9d to \xe2\x80\x9cdo work performed by the agency\xe2\x80\x99s regular employees,\xe2\x80\x9d\nor to \xe2\x80\x9cfill in during staff shortages\xe2\x80\x9d); Employment of Temporary or Intermittent Attorneys\nand Investigators, 3 Op. O.L.C. 78, 78\xe2\x80\x9379 (1979) (\xe2\x80\x9c[I]n our view, this appropriation may\nnot be used to hire employees to perform the same functions as are performed by regular\nemployees in your Office.\xe2\x80\x9d).\n\n17\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nGovernment employees when Congress has provided express authorization for its use\xe2\x80\x9d).\nHHS has a specific statutory authorization that enables it to use an appropriation for the purpose of hiring consultants under section 3109. In\nthe Fiscal Year 1993 HHS appropriations act, Congress included a permanent authorization providing that HHS appropriations that are \xe2\x80\x9cavailable\nfor salaries and expenses . . . shall be available for services as authorized\nby 5 U.S.C. 3109.\xe2\x80\x9d Departments of Labor, Health and Human Services,\nand Education and Related Agencies Appropriations Act, 1993, Pub. L.\nNo. 102-394, 106 Stat. 1792, 1825 (Oct. 6, 1992) (\xe2\x80\x9cFY 1993 Authorization\xe2\x80\x9d); HHS Letter at 3. We understand this provision to provide the\nnecessary substantive authority for HHS to use available appropriations to\ncontract for services \xe2\x80\x9cas authorized by\xe2\x80\x9d section 3109, that is, pursuant to\nthe conditions and prohibitions set forth in section 3109 and its implementing regulations. See 5 U.S.C. \xc2\xa7 3109(b), (c), (d) (limiting the contract\nto one year, prohibiting the filling of certain positions under the authority\ngranted, and directing the Office of Personnel Management to promulgate\nregulations \xe2\x80\x9cnecessary for the administration\xe2\x80\x9d of the section); 5 C.F.R.\npt. 304 (setting forth regulations governing agencies\xe2\x80\x99 use of section 3109,\nincluding compensation and reporting requirements). Numerous opinions\nof this Office, the Comptroller General, and other bodies support that\nconclusion. See, e.g., Use of White House Funds, 2 Op. O.L.C. at 376\n(noting that a current White House appropriation for \xe2\x80\x9cservices as authorized by section 3109\xe2\x80\x9d \xe2\x80\x9cauthorize[d] the hiring of consultants\xe2\x80\x9d); Charles R.\nHobbes Corp., B-191865, 1978 WL 11030, at 2 (Comp. Gen. Nov. 13,\n1978) (concluding that a Department of Interior appropriation, which\nmade funds available to contract \xe2\x80\x9cfor services as authorized by 5 U.S.C.\n3109,\xe2\x80\x9d see Pub. L. No. 95-74, \xc2\xa7 104, 91 Stat. 295, 297 (July 26, 1977),\n\xe2\x80\x9cspecifically permitted\xe2\x80\x9d the agency \xe2\x80\x9cto procure such services by contract\nor appointment\xe2\x80\x9d); Lovoy v. Dep\xe2\x80\x99t of Health & Human Servs., 94 M.S.P.R.\n571, 576\xe2\x80\x9377 (2003) (stating that HHS\xe2\x80\x99s FY 1993 Authorization permits\nHHS to use appropriations to pay experts and consultants appointed under\nsection 3109 at a particular pay rate). 15 Accordingly, the FY 1993 Au15\n\nIn the course of our analysis, we considered whether the phrase \xe2\x80\x9cas authorized by\nsection 3109,\xe2\x80\x9d as used in the FY 1993 Authorization, should be interpreted to authorize\nthe expenditure of appropriations only in circumstances in which section 3109 itself\nauthorizes using appropriated funds to contract for services. We rejected that interpretation, however, because it would render the FY 1993 Authorization a nullity. As noted\n\n18\n\n\x0cAuthority to Pay for Private Counsel to Represent Employee Before Congress\n\nthorization permits HHS to use funds available to pay for salaries and\nexpenses to contract for the services of a private counsel pursuant to\nsection 3109.\nHHS also has a current appropriation available for salaries and expenses that it can use to pay for private counsel. In the 2016 Consolidated\nAppropriations Act, HHS received an appropriation \xe2\x80\x9c[f ]or necessary expenses, not otherwise provided, for general department management.\xe2\x80\x9d\nConsolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129 Stat.\n2242, 2617 (Dec. 18, 2015). HHS has informed us that this appropriation\nis available to pay for salaries and expenses; it is thus also available under\nthe FY 1993 Authorization to contract for services as authorized by section 3109. Because, as discussed above, the provision of private representation is in the government\xe2\x80\x99s interest, the testimony of the employee\nrelates solely to actions taken within the scope of her official duties, and\nagency counsel cannot be present, see supra Parts III.A\xe2\x80\x93B, HHS may\npermissibly conclude that contracting for the services of a private attorney\nto represent its employee is a \xe2\x80\x9cnecessary expense\xe2\x80\x9d that \xe2\x80\x9cbears a logical\nrelationship to the objectives of [its] general appropriation.\xe2\x80\x9d Indemnification of Department of Justice Employees, 10 Op. O.L.C. at 8. Funds\nfrom the 2016 appropriation therefore are available under the FY 1993\nAuthorization to contract for the temporary service of an outside counsel\npursuant to section 3109. 16\nabove, section 3109 does not itself authorize any action, but instead is contingent on\nauthority provided in appropriations provisions or other statutes. Consistent with the\ncanon against construing statutory provisions to be \xe2\x80\x9csuperfluous, void, or insignificant,\xe2\x80\x9d\nTRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted), the\nconstruction of the phrase \xe2\x80\x9cas authorized by section 3109\xe2\x80\x9d that we adopt here gives the\nFY 1993 Authorization operative effect. That construction is also consistent with both the\nExecutive Branch\xe2\x80\x99s and the Comptroller General\xe2\x80\x99s historical interpretations of the identical phrase in other appropriations provisions.\n16 HHS, and other agencies that face circumstances similar to those that are the basis\nfor this opinion, may benefit from consulting with the Civil Division about its administration of the Department of Justice\xe2\x80\x99s private counsel retention program. Civil Division\nDirective 2120B implements the Department\xe2\x80\x99s individual-capacity representation regulations, 28 C.F.R. \xc2\xa7\xc2\xa7 50.15, 50.16, and currently includes, among other provisions, a fee\nlimitation of $300 per hour, plus expenses, for private representation. See Civil Division,\nDep\xe2\x80\x99t of Justice, Administrative Directive 2120B, Retention and Payment of Private\nCounsel at 13 (Oct. 1, 2016). The Civil Division encourages interagency coordination so\nthat the Executive Branch continues to be able to retain private counsel where necessary\nat appropriate rates and in accordance with uniform standards of representation.\n\n19\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nIV.\nFor the reasons set forth above, we concluded in our prior oral advice\nthat, in these circumstances and under the Committees\xe2\x80\x99 procedures governing depositions, HHS may retain and pay for private counsel to represent its employee in the deposition.\nGINGER D. ANDERS\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n20\n\n\x0c'


b'Standards for Closing a Meeting of the\nSelect Commission on Immigration and Refugee Policy\nT h e S elect C om m issio n on Im m ig ratio n an d R e fu g ee P olicy is su b je ct to the req u irem en ts\no f th e F e d e ra l A d v iso ry C o m m itte e A c t, w h ic h p ro v id e s th at a d v iso ry c o m m ittee\nm eetin g s m ay b e clo sed to th e public o n ly u p o n a d e te rm in a tio n th a t o n e o r m o re o f\nth e ex em p tio n s o f th e G o v e rn m e n t in th e S u n sh in e A c t is applicable.\nT h e D e c e m b e r 1980 m eeting o f th e C om m ission m ay n ot be closed in its e n tire ty for\nnatio n al se c u rity an d fo reig n p o licy reasons, insofar as it d eals w ith m atters n o t relatin g\nto th o se issues; th e spirit o f th e F e d e ra l A d v iso ry C o m m ittee A c t req u ires th at the\nm eetin g ag e n d a b e s tru c tu re d so th at classified an d o th e r ex em p t in fo rm atio n is c o n s id \xc2\xad\nered se p ara te ly fro m th e m ain, an d co n g ressio n ally m an d ated public, po licy discussions\nan d d ecisio n m ak in g activ ities o f th e C om m ission.\n\nO ctober 10, 1980\nT h e\n\nC h a irm a n\n\nIm m ig ra tio n\n\no f\n\nth e\n\nS e le c t\n\na n d !R e fu g e e\n\nC o m m is s io n\n\non\n\nP o lic y\n\nM y D e a r M r . C h a i r m a n : This is in response to your letter o f Sep\xc2\xad\ntem ber 2, 1980, concerning the possibility o f closing the D ecem ber\nmeeting o f the Select Commission on Imm igration and Refugee Policy\nfor national security and foreign policy reasons. I do not believe that\nthe meeting, in its entirety, may properly be closed on that ground to\nthe extent it deals with m atters not relating to those issues, e.g., en\xc2\xad\nforcem ent matters.\nT he Commission is an \xe2\x80\x9cadvisory com m ittee\xe2\x80\x9d as that term is defined\nin \xc2\xa7 3(2) of the Federal A dvisory Com m ittee A ct (FA C A ), 5 U.S.C.\nApp. I. It is subject to the requirem ents o f the Act. U nder FA C A\n\xc2\xa7 10(a)(1), advisory com m ittee meetings must be open to the public\nunless closed pursuant to \xc2\xa7 10(d). Section 10(d) permits closure o f \xe2\x80\x9cany\nportion o f an advisory com m ittee m eeting w here the President, or head\no f the agency to w hich the Com m ittee reports, determ ines that such\nportion o f such m eeting may be closed to the public in accordance with\nsubsection (c) of \xc2\xa7 552b o f Title 5 (G overnm ent in the Sunshine A ct)\xe2\x80\x9d\n(emphasis added). Thus an advisory com m ittee m eeting may be closed\nonly upon determ ination by an appropriate official 1 that one or more\n\n1 E ith er \xe2\x80\x9c the President o r head o f the agency to w hich the [Commission] reports.\xe2\x80\x9d F or the\nCommission, the President and the \xe2\x80\x9cagency head\xe2\x80\x9d are identical. H ow ever, the President has delegated\nhis functions under F A C A to th e A dm inistrator o f G eneral Services, Executive O rd e r No. 12024, \xc2\xa72,\n\n67\n\n\x0co f the ten open-m eeting exemptions o f the G overnm ent in the Sunshine\nA ct is applicable. T he determ ination must be in writing. F urther, only\nthose portions o f the m eeting to w hich the exemption relied upon is\nrelevant may be closed; the rem ainder o f the m eeting must be open.\nYou give examples o f the types o f issues to be discussed at the\nD ecem ber m eeting and state your belief that full consideration o f those\nissues may involve sensitive national security and foreign policy infor\xc2\xad\nmation. You conclude, based on this, that the m eeting should be closed\nin order to perm it the participants \xe2\x80\x9cto feel free to talk directly, con\xc2\xad\ncretely, and confidentially on issues w hich vitally affect the formation\no f immigration and refugee policy.\xe2\x80\x9d\nU nder applicable legal standards, only those portions of advisory\ncom m ittee meetings \xe2\x80\x9clikely to disclose m atters that are (A) specifically\nauthorized under criteria established by an Executive order to be kept\nsecret in the interests o f national defense or foreign policy and (B) in\nfact properly classified pursuant to such Executive order,\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 552b(c)(l) (emphasis added), may be closed for those reasons. It is, of\ncourse, possible that the Commission, during its deliberations, might\nneed to consider particular inform ation related to national defense or\nforeign policy that has been properly classified (under the standards of\nExecutive O rder No. 12065) by an official w ith classification authority.\nIf so, that portion o f the m eeting in w hich the particular information is\nproposed to be discussed may be closed (w ith advance notice) under\nthe procedures o f F A C A \xc2\xa7 10(d) and OM B C ircular A -63, as amended.\nIt does not appear, how ever, that the entire D ecem ber m eeting may be\nclosed based on the speculation that a free-form exploration o f issues\nrelated to im migration policy might require that some classified infor\xc2\xad\nmation be disclosed. T he spirit o f F A C A requires that the meeting\nagenda be structured so that classified and other exempt information is\nconsidered separately from the main, and congressionally mandated\npublic, policy discussions and decisionm aking activities o f the Commis\xc2\xad\nsion, unless such structuring is impossible. I doubt that it would be\nimpossible in the case o f the D ecem ber meeting.\nShould you believe that a portion o f the D ecem ber m eeting must be\nclosed so that the Commission may consider specific classified inform a\xc2\xad\ntion, you should seek the assistance o f the Com mittee M anagement\nSecretariat o f the G eneral Services A dm inistration in arranging for the\nclosure.\nSincerely,\nB e n ja m in\n\nR.\n\nC iv il e t t i\n\nw ho w ould be the app ro p riate official to make closing determ inations w ith respect to m eetings o f the\nCommission.\n\n68\n\n\x0c'


b"Constitutionality of Government Commission\xe2\x80\x99s\nUse of Logo Including an Historical Cross in its Design\nThe Christopher Columbus Quincentenary Com mission\xe2\x80\x99s use of a logo consisting o f the number\n500 with a cross in one o f the zeros, and a star in the other, does not violate the Establishm ent\nClause of the First Amendment. The use of a cross with clear historical associations in the\ndesign of a government com m ission's logo is compatible with the Supreme C ourt\xe2\x80\x99s holding in\nLynch v. Donnelly, 465 U.S. 668 (1984). Furthermore, the Establishment Clause does not\nrequire a p e r se rule against the inclusion o f religious symbolism in government emblems.\n\nDecember 9, 1986\nM\n\nem oram dun\n\nO p in io n\n\nfor th e\n\nA s s is t a n t\n\nto th e\n\nC h a ir m a n ,\n\nC h r is t o p h e r C o l u m b u s Q u in c e n t e n a r y J u b il e e C o m m is s io n\n\nThis responds to your request for our opinion whether use by your Commis\xc2\xad\nsion of either of two logos would violate the Establishment Clause. Each logo\nconsists of the number 500 with a cross in one zero and a star in the other. The\nonly relevant difference between the two logos is the design of the cross. In\nDesign B, the cross is an exact replica of the one that appeared on \xe2\x80\x9cthe flag of\nthe green cross,\xe2\x80\x9d which was presented to Columbus by Isabella of Castille and\nwhich Columbus carried at the masthead of his ships and hoisted over the\nisland on which he landed on October 1 2 ,1492.1Design A depicts a somewhat\nstylized version of the same cross, in red. For the reasons set forth below, we\nbelieve that either of the two designs would be acceptable.\nIn Lynch v. Donnelly, 465 U.S. 668 (1984), the Supreme Court upheld\nmunicipal display of a creche as part of a city\xe2\x80\x99s Christmas observance. The\nCourt held that celebrating Christmas and depicting its origins were legitimate\nsecular purposes, see id. at 681, and that inclusion of the creche neither had the\nprimary effect of advancing religion nor resulted in excessive entanglement\nbetween religion and government.2 In dicta, the Court also noted the wide\nvariety of \xe2\x80\x9creferences to our religious heritage,\xe2\x80\x9d including the Pledge of Alle\xc2\xad\ngiance and the National Motto \xe2\x80\x9cIn God we Trust.\xe2\x80\x9d Id. at 676. It concluded that\n\xe2\x80\x9c[a]ny notion that these symbols pose a real danger of establishment of a state\nchurch is farfetched indeed.\xe2\x80\x9d3\n1You indicate that the original cross o f the green flag also displayed an F and a Y, for Fernando and Ysabel,\nbut that these are om itted from the design o f the logo.\n2 Id. at 685. Justice O \xe2\x80\x99C onnor concurred, and analyzed the question som ew hat differently. For her, the\ncreche was perm issible because it was not intended to endorse religion and could not \xe2\x80\x9cfairly be understood to\nconvey a message o f governm ent endorsem ent.\xe2\x80\x9d Id. at 693 (O \xe2\x80\x99Connor, J.t concurring).\n3 Id. at 686. Justice O \xe2\x80\x99C onnor also referred to the N ational M otto, as well as to governm ent proclam ation o f\nThanksgiving, and the phrase \xe2\x80\x9cG od save the U ni'ed States and this honorable court.\xe2\x80\x9d She said:\nThose governm ent acknow ledgm ents o f religion serve, in the only w ays reasonably possible in\nour culture, the legitim ate secular purpose o f solem nizing public occasions, expressing confi\xc2\xad\ndence in the future, and encouraging the recognition o f what is worthy o f appreciation in society.\nFor that reason, and because o f their history and ubiquity, those practices are not understood as\nconveying governm ent approval o f particular religious beliefs.\nId. at 693 (O \xe2\x80\x99Connor, J., concurring).\n\n143\n\n\x0cIn our view, use of an obviously historical cross in an historically commemo\xc2\xad\nrative seal fits within both the holding and dicta of Lynch. The U.S. Court of\nAppeals for the Tenth Circuit\xe2\x80\x99s holding in Board o f County Commissioners of\nBernalillo County v. Friedman, 781 F.2d 111 (10th Cir. 1985) (en banc), cert,\ndenied, 476 U.S. 1169 (1986), is not to the contrary. There, the court struck\ndown a county seal containing a relatively large latin cross and the phrase \xe2\x80\x9cwith\nthis we conquer.\xe2\x80\x9d In so doing, however, the court did not purport to establish a\nper se rule against religious symbolism in public emblems.4 Quite the contrary,\nthe court struck down the Bernalillo County seal on the facts of that case.\nThe court observed that there was no record of when or why the seal was\nadopted, or of what it was supposed to symbolize. However, the court found\n\xe2\x80\x9chighly persuasive\xe2\x80\x9d evidence \xe2\x80\x9cthat the seal leads the average observer to the\nconclusion that the county government was \xe2\x80\x98advertising\xe2\x80\x99 the Catholic faith.\xe2\x80\x9d\n781 F.2d at 781. Even so, the court stated that some uses of the seal, such as\n\xe2\x80\x9c[u]se similar to a notary seal,\xe2\x80\x9d might still be constitutional. Id. However, the\ncounty\xe2\x80\x99s practice of using the seal \xe2\x80\x9con all county paperwork, on all county\nvehicles, even on county sheriffs uniforms\xe2\x80\x9d \xe2\x80\x9cpervaded the daily lives of\ncounty residents,\xe2\x80\x9d and was thus unconstitutional. Id. at 782. The court distin\xc2\xad\nguished Lynch on that basis, and also on the ground that the cross, unlike the\ncreche, lacked a secular context.\nBernalillo County is therefore distinguishable on its facts. In the instant case,\nthere will be a clear record of why the Commission chose to include a cross in\nits logo and its historical relationship to Columbus\xe2\x80\x99 voyage. Indeed, historical\ncommemoration is the very raison d \xe2\x80\x99etre of not only the logo, but of the\nCommission itself. The cross will play only a small role in the commemoration\nand could hardly be said to pervade the daily lives of citizens.\nWe therefore believe that inclusion of an obviously historical cross in the\nCommission\xe2\x80\x99s logo would not violate the Establishment Clause. The cross in\nDesign B is historical and, in our view, constitutional. The more stylized cross\nin Design A is somewhat less obviously historical. A red cross is, of course, a\nless direct reference to the flag of the green cross. Nevertheless, its basic design\nis very nearly the same. Thus, we believe that either design would be permissible.\nD o u g l a s W . K m ie c\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n4 Indeed, such a per se rule would be q u ite at odds with American history. As the C ourt noted in Lynch,\nsupra, th ere is a long tradition o f public u se o f religious sym bols. In fact, the Great Seal o f the U nited States\nis itse lf a religious sym bol.\n\n144\n\n\x0c"


b"December 18, 1978\n\n78-66 MEMORANDUM OPINION FOR THE GENERAL\nCOUNSEL, CENTRAL INTELLIGENCE AGENCY\nCentral Intelligence Agency\xe2\x80\x94Supremacy Clause\n(Constitution, Article VI, Clause 2)\xe2\x80\x94Possible StateFederal Law Conflict Involving Classified\nInformation\xe2\x80\x94CIA\xe2\x80\x99s Proposed Administration of\nPolygraph Examinations of Its Contractors\xe2\x80\x99\nEmployees\nThis responds to a request by your Office for our views on State laws bearing\non the Central Intelligence Agency\xe2\x80\x99s (CIA) administration of polygraph\nexaminations of certain employees of those U.S. corporations which have\nclassified contracts with the CIA.\n1.\nAny discussion of the question whether State law may restrict the perfor\xc2\xad\nmance of Federal functions must first address the issue whether those Federal\nfunctions are authorized. In our view, the CIA has the authority to conduct the\npolygraph examinations involved in order to protect the confidentiality of\nclassified information.\nSeveral provisions of law, both of general and particular applicability,\nsupport the CIA\xe2\x80\x99s authority in this situation. As a general matter, Executive\nOrder No. 12065, 43 F. R. 28949 (June 23, 1978) requires Federal agencies to\ninsure the security of classified information. The pertinent provisions of that\norder provide:\nNo person may be given access to classified information unless\nthat person has been determined to be trustworthy and unless access\nis necessary for the performance of official duties. [Section 4-1011]\n'Information Security Oversight Office Directive No. I, approved September 29, 1978, issued\npursuant to the provisions of Executive Order No. 12065, further states that:\nA person is eligible for access to classified information only after showing of\ntrustworthiness as determined by agency heads based upon appropriate investigations in\naccordance with applicable standards and criteria. [Section IV. B. 2]\n\n293\n\n\x0cControls shall be established by each agency to ensure that\nclassified information is used, processed, stored, reproduced, and\ntransmitted only under conditions that will provide adequate protec\xc2\xad\ntion and prevent access by unauthorized persons. [Section 4-103]\nAgency heads listed in Section 1-201 may create special access\nprograms to control access, distribution, and protection of particu\xc2\xad\nlarly sensitive information classified pursuant to this Order or prior\nOrders, [Section 4-201]\nThe order also mandates that \xe2\x80\x9c classified information disseminated outside the\nExecutive branch shall be given protection equivalent to that afforded within\nthe Executive branch.\xe2\x80\x9d \xc2\xa7 4-105. This provision, in conjunction with the other\ncited above, would appear to require security precautions in instances where\nclassified information is to be given to the employees of CIA contractors.\nSeveral provisions of law focus on the CIA\xe2\x80\x99s responsibilities to protect the\nconfidentiality of sensitive information. First, the Director of the CIA is made\nresponsible by statute \xe2\x80\x9c for protecting intelligence sources and methods.\xe2\x80\x9d\nSecond, Executive Order No. 12036, 43 F. R. 3674 (Jan. 24, 1978), requires\nthe CIA to \xe2\x80\x9c protect the security of its installations, activities, information and\npersonnel by appropriate means, including such investigations of applicants,\nemployees, contractors, and other persons with similar associations with the\nCIA as are necessary.\xe2\x80\x9d \xc2\xa7 1-811. This provision, as well as others in the\norder, see \xc2\xa7\xc2\xa7 2-206(d), 2-208(e), explicitly allow the investigation of contrac\xc2\xad\ntors handling sensitive information.\nIt seems evident that, on the basis of the foregoing authorities, the CIA is\nauthorized and required to conduct investigation of its contractors\xe2\x80\x99 employees\nto insure the security of sensitive information. Based on the information\nsupplied by your Agency, we believe that the use of polygraph examinations is\nalso an authorized function. While no Federal law explicitly authorizes this\napproach, the lack of such a provision cannot be deemed controlling. United\nStates v. Macdaniel, 7 Pet. 1, 13-14 (1833). Rather, in this case the following\ngeneral rule should apply: when a statute imposes a duty, it authorizes by\nimplication all reasonable and necessary means to effectuate the duty. United\nStates v. Jones, 204 F. (2d) 745, 754 (7th Cir. 1953); United States v. Kelly, 55\nF. (2d) 67 (2d Cir. 1932); 2A Sutherland, Statutes and Statutory Construction,\n\xc2\xa7 55.04 (4th ed. 1973) at 384.2 The use of polygraph tests, as we are informed,\nprovided a means for determining whether employees may be entrusted with\nsensitive information. We are also informed that this technique elicits informa\xc2\xad\ntion that could not otherwise be obtained so that security is enhanced in a\nmanner that could not otherwise be accomplished, making polygraph examina\xc2\xad\ntions an \xe2\x80\x9c extraordinarily useful device.\xe2\x80\x9d Polygraph examinations thus may be\nseen as reasonable and necessary means to the effectuation of duties imposed\n2The same general rule is set forth in Executive Order No. 12036, \xc2\xa7 1-811, which authorizes\n\xe2\x80\x9c appropriate m eans\xe2\x80\x9d to protect security.\n\n294\n\n\x0con the CIA under Federal law, and therefore the use of such examinations is\nauthorized under Federal law.3\nWe believe, however, that a caveat is in order. Executive Order No. 12036,\n\xc2\xa7 1-811, allows for \xe2\x80\x9c such investigations of . . . contractors . . . as are neces\xc2\xad\nsary.\xe2\x80\x9d The requirement of necessity may be read as precluding the administra\xc2\xad\ntion of polygraph tests on an undifferentiated basis to all employees of a\ncontractor. However, an evaluation and determination of the need for the\nadministration of such tests to a particular contractor\xe2\x80\x99s employees, or to certain\nclasses of such employees, would appear to be more consonant with the\nprovisions of the order. Since polygraph testing is apparently now being\nadministered only to employees who either have access to or are being con\xc2\xad\nsidered for access to SCI information, it appears that the need for such a proce\xc2\xad\ndure is being weighed and determined.\nII.\nMassachusetts has enacted the following statute:\nAny employer who subjects any person employed by him, or any\nperson applying for employment, including any person applying for\nemployment as a police officer, to a lie detector test, or requests,\ndirectly or indirectly, any such employee or applicant to take a lie\ndetector test, shall be punished by a fine of not more than two\nhundred dollars. This section shall not apply to lie detector tests\nadministered by law enforcement agencies as may be otherwise\npermitted in criminal investigations. [Chapter 149 sec. 19B, Mass.\nGen. Law]\nOne question raised by your office is whether the above statute may be\nlegitimately applied to either the CIA or its Massachusetts contractors.\nYour office believes that, by its own terms, the statute would not encompass\nthe polygraph examinations the CIA wishes to conduct. The construction of the\nMassachusetts statute is a function to be performed by the appropriate State\nofficials, although it is proper for you to urge on them your construction. We\naddress here only the question of the validity of the statute, assuming that it\ndoes impinge on the performance of a Federal function. For the following\nreasons we believe that Massachussetts may not legally apply the statute to\neither the CIA or its contractors.\nA.\nWe first discuss the application of the statute to CIA itself. It is a\nfundamental principle of Federal constitutional law that, by reason of the\n\xe2\x80\x99We understand that employees who are to be tested know that they are performing work for\nCIA. are informed of CIA\xe2\x80\x99s involvement in the testing, and consent to the testing. We do not\nbelieve that any problem arises from the prohibition on CIA\xe2\x80\x99s performance of internal security or\nlaw enforcement functions, see 50 U.S.C. \xc2\xa7 403(d)(3), even as that prohibition was interpreted in\nWeissman v. CIA, 565 F. (2d) 692 (D.C. Cir. 1977). Nor are we aware of any other general\nprohibition on the use of polygraph testing by intelligence agencies.\n\n295\n\n\x0cSupremacy Clause, Article VI, cl. 2, the lawful activities of the Federal\nGovernment may not be regulated by any State. Mayo v. United States, 319\nU.S. 441, 445 (1943).\nConcededly, the situation here differs from the usual Supremacy Clause\nquestion. In the ordinary case, courts are called on to review State laws that\nconflict with a Federal statute or regulation. Although the Director\xe2\x80\x99s authoriza\xc2\xad\ntion of polygraph examinations does not so clearly proceed from statute or\nregulation, we do not believe that this is of any real consequence. It is not the\nabstract inconsistency between the express terms of State and Federal law\nwhich is the concern underlying the Supremacy Clause. Cf., Los Alamos\nSchool Board v. Wugalter, 557 F. (2d) 709, 714 (10th Cir. 1977) (potential or\nperipheral conflicts between State and Federal law will not render the State law\ninvalid). Rather, the evil that the clause addresses is the obstruction to the\naccomplishment and execution of Federal purposes and objectives. Hines v.\nDavidowitz, 312 U.S. 52, 67 (1941). This may occur not only when State law\nconflicts with the express terms df Federal law, but also when State law\nimpedes the performance of activities conducted under the authority of Federal\nlaw. See, United States v. Public Service Commission, 422 F. Supp. 676 (D.\nMd. 1976) (three-judge court) (upholding General Service Administration\nauthority to conduct cross-examinations in utility rate proceedings beyond time\nlimit imposed by State); In Re New York State Sales Tax Records, 382 F. Supp.\n1205 (W.D. N.Y. 1974) (exercise of grand jury powers prevails over State\nnondisclosure law). See also. United States v. City o f Chester, 144 F. (2d) 415,\n420 (3d Cir. 1944). Since the administration of polygraph examinations is an\nactivity authorized under Federal law, it may not be impeded by State law.\nWe recognize that, in certain circumstances, State law has been deemed to\napply to, and control, the exercise of various Federal functions. This result\nobtains, however, only where the application of State law would not undermine\nFederal purposes or functions. See, Mayo v. United States, supra, at 446;\nFederal National Mortgage Association v. Lefkowitz, 390 F. Supp. 1364, 1368\n(S.D. N.Y. 1975). See also, City of Norfolk v. McFarland, 145 F. Supp. 258,\n260 (E.D. Va. 1956). We are informed by the CIA that the application of the\nstatute to it would result in its inability to perform satisfactory security checks,\nand this in turn would substantially impair its procurement operations. On this\nbasis, the rationale adopted in the decisions cited above does not justify the\napplication of the Massachusetts statute.\nThe Supremacy Clause question often requires the assessment of congres\xc2\xad\nsional intent, i.e., whether Congress, in promulgating the statutes under which\nthe Executive branch implements a regulation, intended Federal action to\noverride inconsistent State laws. In some cases an examination of the\nlegislative history and the structure of a statute reveals that Congress did not\nintend to interfere with State regulation. Where, however, there is a clear\nconflict between the implementation and a State law, and there is no evidence\nthat Congress contemplated the Federal interest to be subordinated, the State\nenactment must yield. We believe such conflict to exist in this instance, and\n296\n\n\x0csince we know of no congressional intent that the State\xe2\x80\x99s interest should\nprevail, the State law must yield.\nB.\nThe remaining question is whether, even though the Massachusetts statute\nmay not be validly applied to CIA itself, it may, nevertheless, be enforced\nagainst CIA\xe2\x80\x99s contractor. We reiterate here that we express no views on the\ninterpretation of the statute insofar as CIA\xe2\x80\x99s contractor is concerned. Rather,\nwe address only the question whether the statute may legitimately be applied to\nthe contractor.\nWhether State law may be applied to those under contract with the Federal\nGovernment is difficult to answer authoritatively. It is clear that the mere fact\nthat a particular entity is performing work for the Federal Government does not\nentirely exempt it from State regulation. See, Railway Mail Association v.\nCorsi, 326 U.S. 88, 95-96 (1945) (applying State nondiscrimination law to\npostal union); Stewart and Co. v. Sadrakula, 309 U.S. 94 (1940) (holding a\nState safety requirement applicable to Federal contractor); Public Housing\nAdministration v. Bristol Township, 146 F. Supp. 859 (E.D. Pa. 1956)\n(Federal contractor required to adhere to building code requirements). On the\nother hand, it also seems clear that performance of work for the Federal\nGovernment may at times exempt it from State or local regulation. See, Leslie\nMiller, Inc. v. Arkansas, 352 U.S. 187, 190 (1956); Pacific Coast Dairy v.\nDepartment of Agriculture o f California, 318 U.S. 285 (1943); Contractors\nAssociation of Eastern Pennyslvania v. Secretary of Labor, 442 F. (2d) 159,\n166 (3d Cir. 1971).\nThe courts approach the assessment of the validity of State statutes imposing\nburdens on Federal contractors in much the same way as they approach the\nstatutes imposing burdens on the Federal Government itself. That is, the courts\nlook to whether the State statutes would frustrate the operation of Federal\nfunctions. See, Railway Mail Association v. Corsi, supra, at 95-96; Leslie\nMiller, Inc. v. Arkansas, supra, at 190; Stewart and Co. v. Sadrakula, supra,\nat 103-04; Associated General Contractors of Massachusetts, Inc. v. Altshuler,\n490 F. (2d) 9, 15 (1st Cir. 1973); City of New York v. Diamond, 379 F. Supp.\n503, 520 (E.D. N.Y. 1974). Under this standard, it is our opinion that the\napplication of the Massachusetts law to the contractor in this instance would\nfrustrate Federal functions to the same extent as though the law were to apply to\nthe CIA itself. According to the CIA, such an application would inevitably\nresult in the contractor\xe2\x80\x99s refusal to allow his employees to take part in the\npolygraph examination program, which in turn would result in less than\nadequate security and ultimately would jeopardize CIA procurement. The\ndecisions under the Supremacy Clause do not allow State law to cause this sort\nof disruption of Federal programs, even if the law is applied only to a contractor\nand not to the Federal Government itself.\n297\n\n\x0cII. Conclusion\nFor the foregoing reasons, we conclude that the Massachusetts law in\nquestion may not be legitimately applied to either CIA or its contractors so as to\npreclude authorized polygraph examinations. However, a word of caution is\nappropriate. The application of State law to Federal contractors is generally\ndependent on the facts and circumstances of a particular setting, see, Mayo v.\nUnited States, 319 U.S. at 447-48, Los Alamos SchoolBd. v. Wugalter, 557 F.\n(2d) at 712, 714, and is thus a question which necessarily entails a judgment\npredicated on a number of different factors. Moreover, as the considerable\nvolume of case law in the State-Federal law conflict area demonstrates,\ndisputes of this type often result in litigation and resolution pursuant to\nstandards that are often difficult to apply with precision. It is, therefore, an area\nin which prelitigation predictions of success must necessarily be cautious.\nLarry A. H am m ond\n\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n298\n\n\x0c"


b'Authority to Use Troops to Prevent Interference With\nFederal Employees by Mayday Demonstrations and\nConsequent Impairment of Government Functions\nThe President has inherent constitutional authority to use federal troops to ensure that Mayday\nMovement demonstrations do not prevent federal employees from getting to their posts and carrying\nout their assigned government functions.\nThis use of troops is not prohibited by the Posse Comitatus Act.\n\nApril 29, 1971\n\nMEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL\nDEPARTMENT OF THE ARMY\nIn light of the announced purpose of the \xe2\x80\x9cMayday Movement\xe2\x80\x9d to halt the functioning of the federal government by preventing federal employees from reaching\ntheir agencies, the question has arisen as to whether there is authority to use\nfederal troops to insure access by federal employees to their agencies. The\nquestion involves the relationship between the inherent authority of the President\nto use troops to protect federal functions and the Posse Comitatus Act, 18 U.S.C.\n\xc2\xa7 1385, which prohibits the use of troops for law enforcement purposes \xe2\x80\x9cexcept in\ncases and under circumstances expressly authorized by the Constitution or Act of\nCongress.\xe2\x80\x9d\nIt is the opinion of this Office that the Posse Comitatus Act does not prevent the\nuse of troops to protect the functioning of the government by assuring the availability of federal employees to carry out their assigned duties and that troops may\ntherefore be utilized to prevent traffic obstructions designed to prevent the access\nof employees to their agencies.\nIn a series of memoranda, this Office has taken the position that the Posse\nComitatus Act applies to the use of troops to perform essentially law enforcement\nduties and does not impair the President\xe2\x80\x99s inherent authority to use troops for the\nprotection of federal property and federal functions. 1\n\n1\nSee Memorandum for the General Counsel, Department of the Army, from the Office of Legal\nCounsel, Re: Use of Federal Troops to Protect Government Property and Functions at the Pentagon\nAgainst Anti-War Demonstrators (Oct. 4, 1967); Memorandum for Robert E. Jordan, III, General\nCounsel, Department of the Army, from William H. Rehnquist, Assistant Attorney General, Office of\nLegal Counsel, Re: Statutory Authority to Use Federal Troops to Assist in the Protection of the\nPresident (Nov. 12, 1969); Memorandum for the General Counsel, Department of the Army, from the\nOffice of Legal Counsel, Re: Authority to Use Troops to Execute the Laws of the United States\n(Mar. 27, 1970); Memorandum for Robert E. Jordan III, General Counsel, Department of the Army,\nfrom William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Authority to Use\nTroops to Protect Federal Functions, Including the Safeguarding of Foreign Embassies in the United\nStates (May 11, 1970).\n\n343\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nThese conclusions are based on the history of the Posse Comitatus Act, which\nwas originally enacted in 1878 for the purpose of preventing United States\nMarshals, on their own initiative, from calling upon troops to assist them in\nperforming their duties. See 7 Cong. Rec. 3718, 3727, 3845\xe2\x80\x9349, 4240\xe2\x80\x9347 (1878).\nThat Act was designed to prevent use of troops in direct law enforcement under\ncommand of minor civilian officials and does not reach essentially protective\nduties. The conclusions are likewise supported by the historic and judicial recognition of the President\xe2\x80\x99s inherent powers to use troops to protect federal property\nand functions as a necessary adjunct of his constitutional duties under Article II,\nSection 3 of the Constitution. Edward S. Corwin, The President: Office and Powers (1787\xe2\x80\x931957) 130\xe2\x80\x9339 (4th ed. 1957).\nThe Supreme Court has recognized this authority. Although In re Neagle, 135\nU.S. 1 (1890), involved the use of a marshal to protect a federal officer, the Court\nindicated that troops might have been used when necessary. Citing the example of\nobstruction to the mails, it noted that troops could be used to prevent such obstruction to a vital federal function pursuant to the inherent authority of the President. Id. at 65. When the mails were obstructed during a railway strike, President\nCleveland ordered out the troops for the purpose of protecting federal property and\n\xe2\x80\x9cremoving obstructions to the United States mails.\xe2\x80\x9d2 The Court upheld this action:\nThe strong arm of the national government may be put forth to brush\naway all obstructions to the freedom of interstate commerce or the\ntransportation of the mails. If the emergency arises, the army of the\nNation, and all its militia, are at the service of the Nation to compel\nobedience to its laws.\nIn re Debs, 158 U.S. 564, 582 (1895).\nThe intended obstruction of the Mayday Movement, as publicly announced,\nextends beyond a single federal function such as the carriage of the mails, although\nthe mails could certainly be affected. The objective is to obstruct all federal\nfunctioning in the nation\xe2\x80\x99s capital. It is the President\xe2\x80\x99s constitutional duty to\nprotect this functioning and prevent its obstruction, and he has the inherent authority to use troops, if necessary, to carry out this duty.\nWhile this authority rests on inherent power, rather than specific statutes, it\nshould be noted that if serious violence occurs beyond the control of police, the\n\n2\nProclamation No. 366 (July 8, 1894), reprinted in 13 A Compilation of the Messages and Papers\nof the Presidents 5931 (James D. Richardson ed., 1909). While President Cleveland issued a\nproclamation in this instance, it should be noted that no formal proclamation is necessary to utilize\ntroops in a protective, as distinguished from law enforcement, capacity. The requirement of a proclamation stems from the express language of 10 U.S.C. \xc2\xa7 334, which specifies that the use of the\nmilitary under chapter 15 of that title shall be accompanied by a presidential proclamation. Since the\nproposed use of the military to protect the federal functions is based on the President\xe2\x80\x99s constitutional\nauthority, rather than on that chapter, no proclamation is necessary here.\n\n344\n\n\x0cAuthority to Use Troops to Prevent Interference With Federal Employees\n\nPresident could also, upon proper request, invoke his authority to use troops\npursuant to 10 U.S.C. \xc2\xa7\xc2\xa7 331\xe2\x80\x93334. Likewise, if a federal court order should be\ndefied, the President on his own initiative could formally call out troops pursuant\nto 10 U.S.C. \xc2\xa7 333. It is our view, however, that where federal functions are obstructed, invocation of these statutory provisions is not essential to the use of\ntroops in a protective capacity.\nWILLIAM H. REHNQUIST\nAssistant Attorney General\nOffice of Legal Counsel\n\n345\n\n\x0c'