The Federal Diary
The Federal Diary
Joe Davidson

‘Special’ assistant U.S. attorneys work for free

If you’re a lawyer seeking work, the first listing on the Web page for “Current Department of Justice Attorney Vacancies” looks good at first glance.

It’s an opening for a “special assistant United States Attorney” (SAUSA) in Southern Illinois.

Joe Davidson

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. Davidson previously was an assistant city editor at The Washington Post and a Washington and foreign correspondent with The Wall Street Journal, where he covered federal agencies and political campaigns.

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Great experience, plus a lively music scene nearby.

But no pay.

“Uncompensated” is in parentheses for this listing and at least a dozen others. What makes these assistants so special is that they work for free.

That has the National Association of Assistant United States Attorneys (NAAUSA) upset.

In a June 4 letter to Attorney General Eric H. Holder Jr., previously reported on by ProPublica, the organization complained that using freebie lawyers “violates the general principle of appropriations law that the government cannot accept the voluntary services” for work that otherwise would have been done by paid employees.

Justice gets around that by claiming the unpaid lawyers are not volunteering but instead are providing “gratuitous services.”

With logic and language you have to be a government lawyer to appreciate, H. Marshall Jarrett, director of the Executive Office for United States Attorneys, said it is perfectly legal to appoint special attorneys “at a gratuitous rate of pay (i.e., $0)” in a May 23 letter to NAAUSA. “A gratuitous rate of pay distinguishes uncompensated [special attorneys] from mere providers of volunteer services. Uncompensated SAUSAs thus legally may provide gratuitous services to the Department.”

“Gratuitous” has two meanings. Done free of charge is one. Lacking good reason is another. Both seem to apply here.

“It is very, very bad for morale,” NAAUSA President Robert G. Guthrie said in an interview. “We think it’s bad public policy.”

But the Justice Department says it has good reason to use unpaid labor. Justice lawyers are subject to pay with “a specified maximum amount, but there is no mandatory minimum salary,” according to Jarrett.

Even the minimum wage does not apply. Wal-Mart must be salivating at the notion.

Paid assistant U.S. attorneys get $44,581 to $117,994 annually.

Although there is room for volunteers in the workplace — some internships, for example — free labor can undercut those who actually expect to be paid for their work. Uncle Sam has other reasons for his “prohibition on the acceptance of voluntary services,” Guthrie wrote in the letter to Holder.

The prohibition “forces agencies to operate within the amounts provided by Congress,” Guthrie said. Use of unpaid labor also “can draw into play the opportunity for self-dealing and abuse of governmental position that the federal conflict of interest laws are intended to prevent,” he added.

That’s not the way Keith Henneke sees it.

He was an uncompensated lawyer in the District’s U.S. attorney’s office in 2011.

“I thought the experience was amazing,” he said. “I’m very glad that I did it.”

His experiences included trying more than 20 misdemeanor cases during a six-month period. “The experiences I had with the U.S. attorney’s office were highly valued by the law firms I interviewed with,” added Henneke, who now works for a private firm in Los Angeles. “I looked at it as an opportunity to serve, not that I was taken advantage of. . . . You’re helping your government.”

In a November letter to Justice, Guthrie acknowledged that the pay system for assistant U.S. attorneys has greater flexibility than the General Schedule that applies to many federal employees. Yet “reasonable interpretations” of the law, he said, do not allow the department to devise a “pay rate as low as zero.”

There are other issues.

The Justice Department is the nation’s largest law firm, and “I think the Department of Justice should be setting the best example for the legal community,” said Carrie Cordero, director of national security studies at Georgetown University Law Center, in an interview. “In this case, they are setting a bad example.”

Cordero was a different type of special assistant U.S. attorney, one detailed from another Justice office, which paid her. Currently, there are 96 unpaid special assistant attorneys.

In a National Law Journal article, Cordero said: “The only students who have ever asked me about the unpaid SAUSA program are young women. This troubles me. . . . I am concerned about a young attorney starting her career, after having made the investments of money, time, effort and relationships to achieve a law degree, only to accept a reality that exercising its value is not worth getting paid for. This is a bad message.”

Justice says the unpaid program helps the agency deal with the impact of the budget cuts known as the sequester, although the program began before the sequester was imposed.

“This program, in which attorneys perform an important public service by representing the interests of our country, provides a valuable support to the Justice Department as we continue to address the staffing challenges imposed by sequestration and still fulfill our commitment to protect the American people,” said DOJ spokesman Brian Fallon. “Sequestration and other budget constraints have forced the Justice Department to impose a strict hiring freeze, which has caused the department to lose more than 2,500 staff department-wide since January 2011.”

Paying workers nothing certainly is a way to stay within budget.

Twitter: @JoeDavidsonWP

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.

 
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