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employee, or "civil officer" for purposes of Rule 41, who is authorized to investigate offenses against the United States may legally execute a federal search warrant.

Finally, there are situations where deputations may be used, not only to confer law enforcement powers, but also to expand the investigative jurisdiction of Inspector General agents. The Marshals Service's deputation authority includes appointing employees of other federal agencies as Deputy Marshals to aid in the enforcement of federal law. Thus, Inspector General agents may be deputized to assist the Department in any investigation it is authorized to conduct. It is not material whether the Inspector General to whose staff the agents belong is authorized under the Inspector General Act to conduct the investigation because the investigation being conducted is not an investigation under the authority of the Inspector General, but rather, an investigation under the authority of the Department of Justice.

Deputation of Inspector General Personnel

Between June 1, 1989, and June 1, 1990

During the period from June 1, 1989, to June 1, 1990, deputation on a case-by-case basis was requested by Inspectors General on 113 occasions, involving close to 300 individual IG agents. Eighty-eight of these requests were approved by the Deputy Attorney General. Nine requests were withdrawn by the requesting office.

Fourteen requests were denied, either by the

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Criminal Division, or by the Deputy Attorney General upon the recommendation of the Criminal Division. Only two requests are still pending within the Department, awaiting further information from the field.

A majority of the fourteen denials were based on the IG's failure to provide information indicating a specific need for the deputation, including information relating to hazardous conditions, or upon the recommendation of the United States Attorney. A few were not approved because the need for the deputation no longer existed by the time the request was submitted to the Deputy's office. Three requests were denied because the investigations for which deputation was sought – offenses under the Food, Drug, and Cosmetic Act relating to the illegal trafficking in steroids - were determined to be outside the scope of the HHS Inspector General's authority. Attorney General Stuart Gerson testified before this Committee on April 25, 1990, concerning the HHS Inspector General's authority to investigate crimes within the jurisdiction of the Food and Drug Administration.

Assistant

We recognize the legitimate concerns of the Inspector General community over delays in the Department's processing of deputation requests. During the year prior to June 1, 1990, the average time required by the Criminal Division to substantiate the need for deputation was 29 working days from receipt to transmittal of a recommendation to the Deputy Attorney General, with an average of 5 additional days until final action. (I am

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advised that the figure of 48.5 days which we supplied the Committee on March 22, 1990, for deputations processed until that time included non-working days and was calculated from the date when an inspector general request was mailed rather than from receipt of the request by the Department.) Emergency requests have been processed in as few as two days. But we can do better. For the most part, delays in the proceeding of deputations have been attributable to the Criminal Division's efforts to substantiate the need for deputation through additional information from the Inspector General or the appropriate United States Attorney's office. Recognizing this as the principal source of delay, we have put in place new procedures that will substantially eliminate the problem created by the need for input from the field. By letter dated June 26, 1990, the Deputy Attorney General's Office notified all Inspectors General that the Department of Justice would thenceforth require that all requests for deputation contain a letter of endorsement from the appropriate federal prosecutor assisting the investigation. endorsement is expected to contain a brief summary of the investigation, the anticipated duration of the investigation, whether the prosecutor or another federal law enforcement agent knows or has worked with the investigator for whom deputation is requested, and an explanation of why the investigative activities of the person to be deputized require special deputation. By the same letter, the Deputy Attorney General's Office asked each Inspector General to include with his deputation request a brief

The

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statement of his authority to investigate the specific offenses which the inspector general investigators seek to detect while making use of the special deputation powers. We expect that with this additional information the processing of deputation requests can be reduced to a matter of several days as opposed to weeks. We have taken other steps to ensure that deputation requests will be handled more expeditiously from now on. For example, all deputation requests are now handled by a single office in the Criminal Division, and will be given the highest priority. processed by the Criminal Division, deputation requests can and will be acted upon immediately by the Deputy Attorney General.

Once

Testimonial Subpoenas

The Committee Chairman's letter of June 19, 1990, asked the Department of Justice to comment on testimonial subpoena authority which would permit Inspector General personnel to use testimonial subpoenas to pursue civil, administrative, and contractual remedies. The Inspector General Act does not confer the authority to compel the production of testimony during an investigation as part of the authority to require by subpoena the production of "information ... and other data and

answers ...

documentary evidence.” 5 U.S.C. App. Section 6. See United States v. Iannone, 610 F.2d 943 (D.C. Cir. 1979).

Moreover, the

Program Fraud Civil Penalties Act, 31 U.S.C. 3801, et seq., draws a distinction between the authority of an Inspector General as an

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"investigating official" to require by subpoena the production of documentary evidence and the authority of the "presiding

officer," at a subsequent hearing to determine civil liability under that act, to require by subpoena "the attendance and testimony of witnesses and the production of ... other data and documentary evidence." 31 U.S.C. 3804 (a) and (b)(2).

We have opposed granting to Inspectors General authority to compel testimony in criminal investigations, just as we have opposed granting that authority to any criminal investigative agency. For reasons which will be discussed, it follows from this position that no such authority should be granted in the civil context.

Historically, agencies with criminal investigative

responsibility have relied on grand jury subpoenas for compulsion of testimony. The FBI, for example, does not have testimonial subpoena authority but must rely on the United States Attorneys and the grand jury to compel testimony. Generally, grand jury subpoenas are readily available to agents conducting federal criminal investigations and are enforceable upon a showing of a "reasonable suspicion" of criminal activity. Although in some districts grand juries may not be continuously in session, a subpoena can be issued at any time provided that it is returnable on a date when grand jury reconvenes.

More importantly, the use of testimonial subpoenas in the criminal context is likely to reduce coordination between investigative and prosecutive officials and may result in