Assignment of Army Lawyers to the Department of Justice

Headnotes: 

The Department of 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 Department’s own appropriation.

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

The use of Army lawyers to assist the Department of Justice may violate the Posse Comitatus Act where they perform prosecutorial functions involving direct contact with civilians, unless such Army lawyers are detailed to the Department on a full-time basis and operate under the supervision of Department personnel.

Updated July 9, 2014