CONTENTS Introduction by Senator James Abourezk. Exhibit 1: Justice Department statement of policy regarding limitation for representation of Federal employees, Attorney General's Order 683–77 DEPARTMENT MEMORANDA ON WHICH ATTORNEY GENERAL'S Exhibit 3: Memorandum of Antonin Scalia, Assistant Attorney General- Exhibit 4: Memorandum of Antonin Scalia, Assistant Attorney General- Office of Legal Counsel, March 15, 1976, regarding "Employment of Out- side Legal Counsel-Nature of Contracts, Reimbursement by Other Exhibit 5: Memorandum of Rex E. Lee, Assistant Attorney General- Civil Division to the Deputy Attorney General regarding comments on draft regulations regarding representation, April 16, 1976. Exhibit 6: Memorandum of Mary E. Wagner and Bruce A. Baird to Harold R. Tyler, Deputy Attorney General regarding representation of Exhibit 7: Memorandum of Edward H. Levi, Attorney General to As- sistant Attorneys General regarding representation of Government 1 See also exhibit 13 at p. 195; exhibit 26 at pp. 312-321 (questions 1-19); exhibit 28 at pp. 400-401 (question NOTE.-This report was prepared by staff and has neither been reviewed nor approved by the members Exhibit 8: Sample Department letter retaining private legal counsel.. Exhibit 9: Sample Department letter setting fees of private legal counsel. Exhibit 10: Memorandum of David J. Anderson, Chief, General Litigation Section-Civil Division, to Barbara Babcock, Assistant Attorney General Civil Division, March 21, 1977----- Attachments to March 21, 1977, memorandum: Report to the Assistant Attorney General on "Representation of Government Employees in Civil Litigation" by Representation Committee of the General Litigation Section, Civil Division, Exhibit 11: Letter From Barbara Allen Babcock, Assistant Attorney General-Civil Division to Judge Gerhard A. Gesell regarding Jack N. APPROPRIATIONS TO PAY FOR PRIVATE LEGAL COUNSEL Exhibit 12: Excerpts from House Appropriations Committee hearings on Memorandum of John Harmon, Acting Assistant Attorney General- Office of Legal Counsel to Irving Jaffe, Deputy Assistant Attorney General Civil Division, regarding "Authority for Retaining Out- Testimony of J. Edward Day, former Postmaster General.. Exhibit 14: Excerpts from report of the House Appropriations Committee on Supplemental Appropriations Act for fiscal year 1977- Exhibit 15: Excerpts from H.R. 4877, Supplemental Appropriations Act JUDICIARY COMMITTEE REVIEW Exhibit 22: Letter from Barbara Allen Babcock, Assistant Attorney Gen- eral-Civil Division, to Chairman James O. Eastland, May 19, 1977... Exhibit 23: Letter from Chairman James O. Eastland to Barbara Allen Babcock, Assistant Attorney General-Civil Division, June 11, 1977-_- Exhibit 24: Letter from Barbara Allen Babcock, Assistant Attorney Gen- eral-Civil Division, to Chairman James O. Eastland, June 21, 1977... Exhibit 25: Letter from Senator James Abourezk to Barbara Allen Babcock, Documents to which committee needs access and list to compile. Authority for Department order (questions 1-19). Scope of the order (questions 20-30). Interpretation and administration of the Department order Page 277 279 280 280 282 (questions 31–134).......... 284 Legal standards (questions 135–149) . 300 Congressional proceedings (questions 150-167). 304 307 Exhibit 26: Letter from Barbara Allen Babcock to Senator James Abourezk, October 4, 1977. 308 Attachments to October 4, 1977, letter: Answers to questions on representation of Federal employees sub- Authority for Department order (questions 1-19). Tab A: Department memoranda on which the Attorney General's 381 Tab B: Court pleadings and transcripts in cases where the issue 382 383 Tab D: Department memoranda on 1977 supplemental budget Exhibit 27: Letter from Senator James Abourezk to Barbara Allen Babcock, Exhibit 28: Letter from Barbara Allen Babcock, Assistant Attorney Answers to follow-up and additional questions.. Memorandum of Rex E. Lee of April 16, 1976 (See exhibit 5)_ Exhibit 29: Letter of Senator James Abourezk to Barbara Allen Babcock, STATUTORY AUTHORITY FOR ATTORNEY GENERAL'S Order 683-77 1 1054 413 540 452 1 See memorandum from Antonin Scalia, Assistant Attorney General-Office of Legal Counsel, regarding "Authority for Employment of Outside Counsel," March 4, 1976 (exhibit 3); memorandum of John M. Harmon, Assistant Attorney General-Office of Legal Counsel, to Irving Jaffe, Deputy Assistant Attorney General-Civil Division, regarding "Authority for Retaining Outside Legal Counsel," February 18, 1977 (exhibit 13 at pages 195): Department answers to committee questions 1-19 (exhibit 26 at pages 312-321); Department answers to followup question 1 (exhibit 28 at pages 400-401); and exhibits 72 through 80. Exhibit 34: Memorandum from American Law Division to Senator James Exhibit 35: Letter of Senator James Abourezk to Barbara Allen Babcock, Page 454 493 1055 1056 Memorandum of John M. Harmon, Assistant Attorney General- 1063 Exhibit 37: Decision of the Comptroller General on Justice Department Authority to Retain Private Legal Counsel, April 12, 1978 (B-130441) * 1066 Exhibit 38: Decision of the Comptroller General on "Payment of Damages, Costs, and Private Legal Expenses of Government Officers and Employees Who Are Sued Under Section 7217 of the Internal Revenue Code of 1954," May 16, 1977 (B-137762 and B-143673). 494 GENERAL DOCUMENTS ON ATTORNEY GENERAL'S ORDER 683-77 Exhibit 39: Address of Harold R. Tyler, Deputy Attorney General, on "Proper Representation of Currently Unpopular Litigants-Present and Former Government Officials." January 30, 1976. Exhibit 40: Report of the Comptroller General of the United States, "Law Suits Against the Government Relating to a Bill to Amend the Privacy Act of 1974," May 6, 1977 (B-130441) LEGAL COMMENTARY AND COURT CASES ON OFFICIAL IMMUNITIES Exhibit 41: Leon Friedman, "The Good Faith Defense in Constitutional Litigation," 5 Hofstra Law Review 501 (Spring 1977)-- 307 518 581 Exhibit 42: Bivens v. Six Unknown Named Agents of the Federal Bureau of 625 Exhibit 43: Bivens v. Six Unknown Named Agents of the Federal Bureau of 668 Exhibit 44: Scheuer v. Rhodes, 416 U.S. 232 (1974). 679 698 761 792 Exhibit 45: United States v. Barker, 514 F.2d 208 (D.C. Cir. 1975)- AMENDMENTS TO THE FEDERAL TORT CLAIMS ACT 826 Exhibit 49: Legislative History of H.R. 8245, Public Law 93-253, 88 Stat. 50 (amendment of 28 U.S.C. 2680 (h)). 853 Exhibit 50: Senate Report 93-588 on H.R. 8245 (amendment of 28 U.S.C. 2680 (h))_____ 855 Exhibit 51: House Debate on H.R. 8245 (amendment of 28 U.S.C. 2680 (h))____ 862 Exhibit 52: Jack Borger, Mark Gitenstein, Paul R. Verkuil, "The Federal 868 1 See exhibits 32, 72-73, and 75-76. 2 See exhibits 35 and 72-73. 3 See exhibits 72 to 74. See exhibits 33 and 75 to 80. Exhibit 53: Recommendation 91 of the Select Committee to Study Govern- Exhibit 55: S. 2117, Federal Tort Claims Act Amendments_ LISTS OF CASES TO WHICH ATTORNEY GENERAL'S Exhibit 56: Department list of cases between May 42 and July 14, 1977, Page 916 920 926 935 Exhibit 57: Cumulative Department list of cases in which private counsel had been retained, as of October 20, 1977... 936 Exhibit 58: Department list of cases between May 42 and November 11, 1977, in which private counsel had been retained__ Exhibit 59: Department list of cases between May 42 and December 28, 939 941 944 JUSTICE DEPARTMENT PROSECUTION OF FEDERAL EMPLOYEES Exhibit 61: Justice Department press release and report on mail opening investigation, January 14, 1977- 951 Exhibit 62: Justice Department press release on Kearney indictment, 1009 Exhibit 63: News article on Kearney indictment, New York Times, April 8, 1977_ 1013 Exhibit 64: News article on Kearney indictment, Washington Post, April 8, 1977 1014 Exhibit 65: Commentary on Kearney indictment, Washington Star, May 26, 1977_ 1015 Exhibit 66: Commentary on Kearney indictment, Washington Post, June 13, 1977_ 1016 Exhibit 67: Materials released by the Justice Department on Helms case, (5) Transcript of Helms press statements.. 1048 Exhibit 68: News article on Helms case, New York Times, November 1, 1977. Exhibit 69: News article on Helms case, Washington Post, November 1, 1977__. 1049 1050 Exhibit 70: Commentary on Helms case, New York Times, November 1, 1977 1052 Exhibit 71: Commentary on Helms case, Washington Post, November 2, 1977 1053 FURTHER MATERIALS ON STATUTORY AUTHORITY FOR ATTORNEY GENERAL'S ORDER 683-77* Exhibit 72: Memorandum of subcommittee requesting Congressional Research Service review of "Department of Justice Memorandum" of March 10, 1978 (attachment to exhibit 36), March 24, 1978____ 1071 1 See additional lists in exhibit 10 at pages 138 to 149; exhibit 13 at pages 214 to 224; and exhibit 40 at pages 535 to 549 and 550 to 558. 2 The Supplemental Appropriations Act for fiscal 1977 (exhibit 19) was signed into law on May 4, 1977. The language in the Conference Report on the Supplemental Appropriations Act (exhibit 18) lin iting the authority of the Department to retain new private counsel pending a review of the Attorney General's order by the House and Senate Judiciary Committees went into effect on that date. By letter of June 11, 1977, (exhibit 23) the Department was given interim authority by the Judiciary Committee to retain new private legal counsel pending completion of this review on the condition that the Department inform the committee of its actions. Exhibits 56, 57, 58, and 59 were provided by the Department to the committee pursuant to this agreement. 3 See request for list in exhibit 25 at p. 279. See also exhibit 26 at p. 308 and exhibit 27 at p. 390. See exhibit 30 at p. 1054. See exhibit 3; exhibit 13 at page 195; exhibit 26 at pages 312-321; exhibit 28 at pages 400-401; and exhibits 31 to 38. |