                    Assignment of Army Lawyers to the
                          Department of Justice

The D epartm ent o f Justice may appoint Army attorneys as special attorneys or Special Assistant
  United States Attorneys enabling them to perform litigation functions assigned by law to
  Department of Justice attorneys, provided, however, that the salaries and expenses of Army
  lawyers so serving must be paid from the Departm ent’s own appropriation.

The Departm ent o f Justice may use Army attorneys, performing the functions traditionally
  performed by “agency counsel,” to assist the Departm ent in its litigation functions; Army
  attorneys assisting the Departm ent in this capacity may be paid with Army funds and need not
  be formally detailed to the Department.

The use o f Army lawyers to assist the Departm ent of Justice may violate the Posse Com itatus A ct
  where they perform prosecutorial functions involving direct contact with civilians, unless
  such Army lawyers are detailed to the Departm ent on a full-time basis and operate under the
  supervision o f Departm ent personnel.

                                                                              August 22, 1986

        M   em orandum      O p in io n   for th e   D   epu ty   A ttorney G eneral


   You have asked for our opinion on the legal issues presented by a proposal to
assign lawyers from the Army Judge Advocate General’s Corps (JAGC) to the
Department of Justice to assist in connection with certain litigation functions.
As discussed in greater detail below, we believe that it would be permissible to
implement most of the Army proposal, subject to certain conditions.
   Our conclusions may be summarized as follows:
   1. The Department of Justice may appoint JAGC attorneys as special attor­
neys or Special Assistant United States Attorneys under 28 U.S.C. § § 5 15(b) or
543 so that they may perform litigation functions that are assigned by law to
Department of Justice attorneys. If this is done, however, the salaries and
expenses of the JAGC lawyers must be paid from the Department’s own
appropriation.
   2. The Department of Justice may use JAGC attorneys to perform litigation
functions traditionally performed by “agency counsel.” When Army attorneys
are functioning as agency counsel, they may be paid with Army funds, and no
formal detail to the Department is necessary. The Department of the Army
should determine in each case that it has authority to use its appropriation to
assist in connection with particular litigation.
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    3. The Department may use JAGC lawyers to assist in preparing cases and in
performing a number of other duties in connection with civil and criminal
litigation under our responsibility, without raising issues under the Posse
Comitatus Act. However, questions under the Posse Comitatus Act may be
raised if military lawyers perform prosecutorial functions involving direct
contact with civilians, unless such military lawyers are detailed to the Depart­
ment on a full-time basis and operate under the supervision of departmental
personnel.

                                       L T ie Army Proposal

     The Army proposal has two components. The first component would involve
 full-time assignment of JAGC lawyers to the Civil and Criminal Divisions and
 various United States Attorneys offices for a period of six months to a year.
 This component of the program would be administered by Army Headquarters.
 Its purpose would be to “provide full time assistance” to Department of Justice
 lawyers in “areas requiring specialization, such as medical malpractice and
 contract fraud.” JAGC lawyers would work under the “direct supervision” of
 Department of Justice attorneys and would function in both “agency counsel”
 and “trial attorney” capacity. The JAGC lawyer would prosecute or defend
 only cases “arising out of Army or Department of Defense activities.”
    The second component o f the Army proposal “provides for the Army to
furnish, on a part-time basis, Army attorneys to prosecute in U.S. District Court
felonies occurring on the Army installation or to assist in defense of [certain]
civil suits.” This component of the Army proposal would not be administered
by Army Headquarters but would be “dependent upon local arrangements
between staff judge advocates or command counsel and U.S. Attorneys.”
JAGC attorneys would be appointed as Special Assistant United States Attor­
neys, pursuant to 28 U.S.C. § 543, and their duties would “essentially parallel”
those of Assistant United States Attorneys. At the same time, they would “also
simultaneously perform their normal duties as agency counsel.”1 The United
States Attorney would train and supervise the JAGC attorneys in their duties as
Special Assistants, and the JAGC lawyers would “work side-by-side” with an
Assistant United States Attorney.
    The purpose of the Army proposal is “to provide more and better assistance
to the Department of Justice in representing Army interests” and, in the Army’s
view, the “two-component Army attorney program provides the Department of
Justice with the best possible agency support while enabling us to better
represent the Army.”
    It is not clear from the Army proposal exactly what duties could be assigned
to JAGC attorneys under the first component of the proposal; in particular, it is
not dear whether their duties would be such as to require their appointment as
   1 T he A rm y proposal states that “[i]n effect, Special A ssistants' duties are those usually perform ed by
agency attorneys rig h t up to the moment Special A ssistants step into the courtroom as the prim ary represen­
tative o f the U nited S ta te s /'

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an officer of the Department of Justice.2 We assume from conversations we
have had with Defense Department personnel that the Army proposal contem­
plates assignment of JAGC attorneys to handle the full range of prosecutorial
responsibilities and would thus entail their appointment as Department of
Justice attorneys. As discussed above, the second component of the Army
proposal expressly provides for the appointment of JAGC lawyers as Special
Assistant United States Attorneys to prosecute and defend both civil and
criminal cases in the name of the United States.

            II. Authority for the Department of Justice to Employ the
                 Services of Outside Attorneys to Carry Out the
                     Department’s Exclusive Responsibilities

   Section 516 of Title 28 reserves to officers of the Department of Justice the
conduct of litigation in which the United States or one of its agencies is a party.
A parallel section, 5 U.S.C. § 3106, provides that, except as otherwise autho­
rized by law, an executive agency “may not employ an attorney . . . for the
conduct of litigation in which the United States, an agency, or employee
thereof is a party . .. but shall refer the matter to the Department of Justice.”
There is, however, clear statutory authority for the Department of Justice to use
non-departmental attorneys to carry out the Department’s litigating functions.
As the Army proposal points out, 28 U.S.C. § 543 authorizes the Attorney
General to appoint attorneys to assist the United States Attorneys “when the
public interest so requires.” This appointing authority is a general one, and
extends both to the appointment of attorneys from other federal agencies, as
well as from the private sector, as “Special Assistant United States Attorneys”
to perform departmental duties.3 Although this section would permit the ap­
pointment of attorneys from other agencies to carry out Department of Justice
functions, it does not indicate which agency should bear the cost of their
services.
   2 A ttorneys not em ployed by the Department o f Justice m ust be appointed by the A ttorney General as
special attorneys in the Department in order to conduct litigation in the name o f the United States. See 28
U.S.C. § 5 1 6 (reserving to “officers o f the D epartm ent o f Justice, under the direction o f the A ttorney
G eneral,” the conduct o f all litigation in which the United States is a party). See also In re Persico , 522 F.2d
41 (2d Cir. 1975); In re Grand Jury Proceedings , 309 F.2d 440 (3d Cir. 1962). The United States A ttorney
M anual (USAM ) recognizes that formal appointm ent is a prerequisite for “the participation in court proceed­
ings by attorneys not em ployed by the D epartm ent o f Justice.” See id. at 9-2.162. See also id. at 1-14.300
(“non- departm ent attorneys” must be appointed before they may conduct grand ju ry proceedings). In a 1979
opinion, this O ffice concluded that formal appointm ent as an attorney o f the Department o f Justice is
necessary before a m ilitary lawyer may represent the U nited States in a judicial proceeding before a U nited
States D istrict Judge o r M agistrate. See M emorandum from Larry L. Simms, Deputy A ssistant A ttorney
General, O ffice o f Legal Counsel to W illiam Tyson, Acting D irector, Executive Office fo r United States
Attorneys (Nov. 19, 1979) (1979 O pinion).
   3 A nother general source o f authority to appoint attorneys from other agencies to assist in carrying out the
D epartm ent's litigating functions is 28 U.S.C. § 515(b), which authorizes the appointm ent of “special
assistants to the A ttorney G eneral” o r “special attorneys.” A ttorneys “specially appointed” under this
provision m ay, when so directed by the Attorney G eneral, “conduct any kind o f legal proceeding, civil or
c rim in a l. . . which U nited States A ttorneys are authorized by law to conduct.” Id. § 516(a). Special attorneys
appointed under this authority may not be paid an annual salary o f m ore than $12,000. Id. § 516(b).

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  Guidance with respect to this question is provided by the Economy Act, 31
U.S.C. § 1535, and the principles of appropriations law on which it rests. The
Economy Act provides in pertinent part:

          The head of an agency or major organizational unit within an
          agency may place an order with a major organizational unit
          within the same agency or another agency for goods or services
          if —
               (1) amounts are available;

               (2) the head of the ordering agency or unit decides the order
               is in the best interest of the United States Government;

               (3) the agency or unit to fill the order is able to provide the
               ordered goods or services; and

               (4) the head of the agency decides ordered goods or services
               cannot be provided as conveniently or cheaply by a commer­
               cial enterprise.

31 U.S.C. § 1535(a). The agency ordering the services, including personnel
services, must “promptly” provide reimbursement for their full cost to the
agency providing them. 31 U.S.C. 1535(c).
   In a recent, thorough examination of the application of the Economy Act to
the detail or assignment of personnel from one federal agency to another, the
Comptroller General clarified the question of reimbursement in connection
with formal inter-agency details. 64 Comp. Gen. 370 (1985). After examining
the legislative history of the Economy Act, the Comptroller General concluded
that, except in limited circumstances, formal inter-agency details may not be
made on a non-reimbursable basis. Id. at 380. As discussed in the legislative
history, this conclusion is dictated by two generally applicable principles of
federal appropriations law: (1) appropriations to an agency are limited to the
purposes for which appropriated, 31 U.S.C. § 1301(a), which ordinarily do not
include the performance of the assigned functions of other federal agencies;
and (2) in the absence of express statutory authority, an agency may not
augment its appropriation by using another agency’s personnel to carry out its
own programs. 64 Comp. Gen. at 377. The exceptions to this rule noted by the
Comptroller General would generally not be applicable to the detail of person­
nel from our client agencies to perform duties that can only be performed by
officers of the Department of Justice.4 We believe that the Comptroller General’s

  4 H ie C o m p tro ller G e n eral's opinion recognized an exception for “a m atter [that is] sim ilar or related to
m atters o rd in arily handled by the loaning agency and th at will aid the loaning agency in accom plishing a
purpose fo r w hich its appropriations are provided.” 64 C om p. Gen. at 380. We do not think that this exception
applies to the actual co nduct o f civilian litigation by JA G C lawyers because they do not ordinarily engage in
this activity. Obviously, civilian cases that involve the military in some w ay may be said to “relate! ] to matters
                                                      C ontinued

                                                        118
interpretation of the Economy Act, although not legally binding on the Execu­
tive Branch, is correct.
    Although the Economy Act may not be formally applicable to the appoint­
ment of attorneys from other agencies under 28 U.S.C. § 543, the same prin­
ciples of appropriations law discussed above would require reimbursement
from this Department’s appropriations to the detailing agency.
    Beyond the general authority for inter-agency details discussed in the fore­
going paragraphs, we are aware of no more specific authority for the employ­
ment of personnel or funds from the Department of the Army to carry out
litigating responsibilities assigned exclusively to this Department. Nor are we
aware of any other generally applicable provision of law that would permit the
Department to draw on the appropriation of another agency to carry out
litigation functions that are by law assigned to this Department. Accordingly, if
this Department is to use the services of assigned JAGC attorneys in place of its
own attorneys, it can rely only on the general authority for inter-agency details
in the Economy Act or on 28 U.S.C. § 543. In either event, the Department
must reimburse the Army for the salaries and other expenses of the detailed
personnel from its own appropriation.5

              III. Authority of the Department of the Army to Use Its
                    Appropriation to Assist with Litigation that
                         Affects Its Mission and Interests

   Although Army funds may not be used to do the work of the Justice
Department, this is not to say that Army funds and personnel may not be used
to assist the Department in performing its litigating functions. Even if Army
funds are not available to conduct litigation independently of this Department,
they may be used to provide litigation support services.6 Assuming that Army
funds are available to assist in the conduct of particular litigation,7 we know of
  4 (Continued)
ordinarily handled by the [m ilitary],” but if the exception w ere read this broadly it would sw allow up the rule.
The C om ptroller G eneral’s opinion also noted an exception for “details for b rie f periods w hen necessary
services cannot be obtained, as a practical m atter, by other means and the numbers o f persons and cost
involved are minimal.” Id. at 381. This exception does not seem to apply here.
  5 When C ongress enacts specific authority for one agency to assist another, through the detailing of
personnel o r otherw ise, it generally also gives guidance on the reim bursem ent question. See , e.g., 10 U .S.C.
§ 377 (giving the Secretary o f D efense discretion to request reim bursem ent from civilian law enforcem ent
agencies to which the D epartm ent o f D efense provides assistance under this section); 49 U.S.C. § 324(c)
(reim bursem ent for D efense D epartm ent personnel detailed to the D epartm ent o f T ransportation “as m ay be
considered appropriate by the Secretary” o f T ransportation and the m ilitary departm ent involved). This
O ffice has previously analyzed the reim bursem ent provision o f 10 U.S.C. § 377 at length. “R eim bursem ent
for D efense Department A ssistance to C ivilian Law Enforcem ent A gencies,” 6 Op. O.L.C. 4 64 (1982).
  6 Despite this D epartm ent’s exclusive grant o f litigating authority, we routinely call upon the attorneys of
other agencies, especially those “clien t” agencies charged w ith adm inistering the laws at issue in a particular
piece o f litigation, for assistance in w hat is com m only know n as an “agency counsel” capacity. See, e.g..
M em orandum from Larry A. H am m ond, D eputy A ssistant A ttorney G eneral, O ffice of Legal Counsel to
Acting D eputy A ssistant Attorney G eneral, Lands and Natural Resources D ivision (Dec. 18, 1978).
  7 W hether the Department o f the Army has authority to expend its appropriation in connection w ith a
particular piece o f civilian litigation depends upon the circum stances. This is a question best addressed in the
                                                     C ontinued

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no reason why Army lawyers could not be assigned, on a full- or part-time
basis, to provide such support services as may be appropriate and needed under
the circumstances. As an opinion of this Office has previously recognized:
           Depending upon the nature of a case, this Department may call
           upon agency attorneys not only to provide factual material but
           also to draft pleadings, briefs and other papers. At times, in
           conjunction with attorneys of this Department, agency attorneys
           take part injudicial proceedings.
“Department of Justice — Transfer of Funds from Another Agency,” 2 Op.
O.L.C. 302, 303 (1978).
   On the other hand, as discussed above, Army funds may not be used for
activities that are reserved by statute to officers of the Department of Justice,
such as the responsibility for conducting litigation. We realize that the line
between conducting litigation and assisting in the conduct of litigation will be
difficult to draw precisely, but the general rule that this Office has previously
endorsed is that support services may be provided without reimbursement so
long as this Department retains control over the conduct of litigation. 2 Op.
O.L.C. at 303. The issue of which litigation expenses must be paid from this
Department’s appropriation and which may be borne by a client agency was
examined in greater detail in a Memorandum of June 26, 1986 to the Director
of Litigation Support, Civil Division, from the General Counsel, Justice Man­
agement Division. This memorandum notes that “in the absence of specific
legislative guidance, substantial weight must be given the good faith judgments
and practices of the Civil Division and its client agencies in determining
whether specific expenses should be paid by the client agency or the Depart­
ment of Justice.”
                                       IV. Posse Comitatus Act

   The Posse Comitatus Act, 18 U.S.C. § 1385, may also restrict the use of
JAGC lawyers by this Department. This Reconstruction Era statute makes it a
criminal offense to use “any part of the Army or Air Force as a posse comitatus
or otherwise to execute the law.” The Posse Comitatus Act was intended to
prevent persons subject to military law and discipline from directing com­
mands to ordinary citizens.8
   The Posse Comitatus Act has been interpreted to bar many uses of military
personnel to assist in connection with civilian law enforcement activities,

   7 (C ontinued)
first instance by the A rm y’s ow n general counsel. We assum e that the A rm y has authority to expend its funds
on litigation support services in connection w ith cases involving such matters as Army procurement,
c hallen g es to A rm y regulations or practices, o r dam age claim s against A rm y personnel acting in their official
capacity.
   8 S ee 7 C ong. Rec. 3 6 7 8 -8 1 , 4243-47 (1878). See generally Note, The Posse Comitatus Act: Reconstruc­
tion Era Politics Reconsidered , 13 Am. C rim . L. Rev. 703, 7 0 4 -1 0 (1976); M eeks, Illegal Law Enforcement:
Aiding Civilian Authorities in Violation o f the Posse Comitatus Act, 70 M il. L. Rev. 83, 89-93 (1975).

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unless Congress has explicitly authorized such assistance. See, e.g., Memoran­
dum from Mary Lawton, Deputy Assistant Attorney General, Office of Legal
Counsel to the General Counsel, Department of Defense (Mar. 24, 1978).
Assuming that the litigation of civil and criminal cases constitutes the “execu­
tion” of the law within the meaning of the Act, the legality of the use of JAGC
lawyers by this Department to assist in carrying out its litigating functions
would depend upon several factual questions, including the context in which
such lawyers functioned and the specific activities in which they were engaged.
   In a 1971 opinion of this Office, then-Assistant Attorney General Rehnquist
discussed the applicability of the Posse Comitatus Act in connection with the
deputization of military personnel to serve as security guards on civilian
aircraft. Memorandum from William Rehnquist, Assistant Attorney General,
Office of Legal Counsel to the Assistant General Counsel, Department of
Defense (Sept. 30, 1971). That opinion concluded that the arrangement there at
issue would not violate the Posse Comitatus Act because “individual members
of the Armed Forces assigned to and subject to the exclusive orders of the
Secretary of Transportation are not ‘any part of the Army or Air Force’ within
the meaning of the Posse Comitatus Act.” Under the reasoning of that opinion,
we believe that the Posse Comitatus Act would not be implicated if JAGC
lawyers were detailed on a full-time basis to the Department of Justice and
functioned on a day-to-day basis in an entirely civilian capacity under the
supervision of civilian personnel.
   On the other hand, serious questions under the Posse Comitatus Act might be
raised if military lawyers functioning under the usual military chain-of-com-
mand were assigned on a part-time basis to perform civilian law enforcement
functions along with their regularly assigned military duties.9 In order to
minimize the risk of contravening this criminal statute pending further exami­
nation of the question presented, military lawyers who are not functioning in an
entirely civilian environment should not be used to perform any prosecutorial
function that involves direct contact with civilians in a law enforcement con­
text, such as the interrogation of witnesses or a personal appearance in court.

                                                                    S a m u e l A . A l it o , J r .
                                                           Deputy Assistant Attorney General
                                                               Office of Legal Counsel




   9 The Army proposal states that m ilitary law yers assigned on a part-tim e basis to assist in connection with
Justice D epartm ent litigation w ould be supervised by the U nited States A ttorney and “w ork side-by-side”
w ith an A ssistant U nited States Attorney. H ow ever, it is our understanding that in at least som e cases m ilitary
law yers w ould be based on a m ilitary installation some distance away from the United States A ttorney's
O ffice and would be w orking day-to-day under the direction and supervision o f the installation’s “command
c o u n se l/’ U nless close and continuous civilian supervision is m aintained, it is difficult to see how the
standards in the 1971 opinion could be met.

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