Congressional Subpoenas of Department of Justice Investigative Files ( 1984 )

Congressional Subpoenas of Department of Justice
Investigative Files
Congressional subpoenas seeking inform ation from the Departm ent of Justice concerning two
closed investigations and one open investigation m ay be com plied with only if the materials
sought may be revealed consistent with Rule 6(e) o f the Federal Rules o f Criminal Procedure,
which requires the Department to m aintain the secrecy of matters occurring before the grand
jury, and with the President’s constitutional obligation to executive faithfully the laws o f the
United States.
If it is determ ined after review of the requested documents that compliance with the subpoena
would jeopardize the ongoing crim inal investigation, we would advise the President to assert
executive privilege to ensure the continued confidentiality o f the documents contained in the
open investigative file.
Because of the im portance of the process o f determ ining whether documents may be released to
Congress consistent with Rule 6(e) and the President’s constitutional obligations, Congress
must allow Executive Branch officials sufficient tim e to review the requested documents.
October 17, 1984
M em orandum O p in io n fo r th e D epu ty A ttorney General
On Monday, October 1, 1984, the Subcommittee on Administrative Practice
and Procedure of the Committee on the Judiciary of the United States Senate
issued to Assistant Attorney General Stephen S. Trott of the Criminal Division
a subpoena, signed by Subcommittee Chairman Charles E. Grassley, calling for
Mr. Trott to appear before the Subcommittee at 9:30 a.m. on October 4, 1984
and to produce at that time documents pertaining to three investigations of
alleged false shipbuilding claims against the Navy by Company A, Company
B, and Company C. Specifically, the October 1 subpoena seeks production of
the following described documents:
(1) All prosecutors’ memoranda concerning the above named
companies, including, but not limited to, all recommendations
for or against prosecution, all reports and memoranda about the
status of the investigations, all reports and memoranda concern­
ing investigative plans, all legal analyses prepared with refer­
ence to any of the cases, and any dissenting views by one or
more of the attorneys with respect to any of the reports and
memoranda indicated above.
(2) The report forwarded earlier this year to the Department
of Justice by Elsie Munsell, U.S. Attorney for the Eastern Dis­
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trict of Virginia, commenting on the 1983 report of the Office of
Policy and Management Analysis, Department of Justice, en­
titled “Review of Navy Claims Investigations.”
(3) All other reports and memoranda of the U.S. Attorney’s
Office for the Eastern District of Virginia dealing with the
subject of Navy shipbuilding claims.
(4) A list of all documents within these three categories of
documents.
The subpoena was served on Assistant Attorney General Trott on October 1,
1984, following a joint hearing of the Subcommittee on International Trade,
Finance, and Security Economics of the Joint Economic Committee and Sena­
tor Grassley’s Subcommittee, at which Mr. Trott appeared for two-and-one-
half hours. The subpoena itself did not exclude grand jury materials from the
document request. In a letter of August 9, 1984, however, Senators Proxmire and
Grassley indicated that the Subcommittee was not seeking grand jury materials.
In response to the subpoena, Assistant Attorney General Trott appeared
before the Subcommittee on October 4, 1984, and read a statement. In brief,
Mr. Trott agreed to make available documents related to the closed Company A
and Company C investigations (subject to the need to redact grand jury materi­
als), but objected to the production of documents pertaining to the open Company B
investigation. Following the hearing, Assistant Attorney General McConnell met
with Chairman Grassley, Assistant Attorney General Trott, and others.
The following day, on October 5, 1984, the Subcommittee issued another
subpoena, again signed by Chairman Grassley. This subpoena was issued to the
Attorney General “or designated custodian of described documents” and com­
mands him to appear before the Subcommittee at 10:00 a.m. on October 19,
1984, and to produce the following specified documents:
(1) All prosecutors’ memoranda concerning [Company B],
including, but not limited to, all recommendations for or against
prosecution, all reports and memoranda about the status of the
investigation, all reports and memoranda concerning investiga­
tive plans, all reports and memoranda from the Federal Bureau
of Investigation regarding this investigation, and any dissenting
views by one or more of the attorneys with respect to any of the
reports and memoranda indicated above.
(2) A list of all documents described above.
* This request does not include 6(e) material.1
1 The subpoena states that a personal appearance by the Attorney G eneral or designated custodian is not
necessary if the requested m aterials are delivered to the Subcom m ittee. W e read this to mean that the A cting
A ttorney G eneral for this m atter is free to designate a custodian o f the docum ents for the purpose o f
responding to this subpoena. Any assertion o f executive privilege, how ever, must be authorized by the
President and m ade on his behalf.
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Because the October 1 subpoena appears to have been complied with except
to the extent that it overlaps with the October 5 subpoena, we have focused our
legal analysis upon the issues raised in the later subpoena. We have not yet
been able to conduct a review of the subpoenaed documents.2 Our legal
analysis is therefore more general and less specific to the requested documents
than we would prefer. However, we intend to have the opportunity to examine
the documents which are identified in the October 5 subpoena before the return
date of that subpoena. We have attempted below to provide you with general
guidance to assist you in advising the President concerning the need to recon­
cile the obligation of the Executive Branch to respond to the subpoenas with its
obligation to maintain the secrecy of grand jury materials and to resist improper
congressional attempts to interfere with the Executive’s conduct of ongoing
criminal investigations.
Based upon our understanding of the facts of this dispute and upon a
renewed examination of the relevant legal and historical precedents, we believe
that a number of the documents covered by the subpoenas relating to all three
investigations may be covered by the requirement of Rule 6(e) of the Federal
Rules of Criminal Procedure, which requires the Department to maintain the
secrecy of “matters occurring before the grand jury.” In addition, documents in
the files of the Company B investigation, an ongoing criminal investigation,
may be shielded from disclosure to Congress by a claim of executive privilege.
We are fully cognizant of the President’s announcement that “[t]he policy of
this Administration is to comply with Congressional requests for information
to the fullest extent consistent with the constitutional and statutory obligations
of the Executive Branch . . . . [Executive privilege will be asserted only in the
most compelling circumstances, and only after careful review demonstrates
that assertion of the privilege is necessary.” Memorandum from President
Reagan to the Heads of all Executive Departments and Agencies (Nov. 4,
1982). Nevertheless, we believe that both Rule 6(e) and the probability
that certain documents covered by the request will be privileged require that
careful consideration be given to the documents and the potential effects of
disclosure before documents from the Company B file are made available to
the Subcommittee.
For the reasons detailed below, our recommendation at this time, based upon
the conclusion of the Criminal Division that disclosure of the Company B
investigative documents will substantially interfere with the Department’s
ongoing criminal investigation in that case, and subject to our own review of
the documents, is to advise the President to assert executive privilege to ensure
the continued confidentiality o f the documents contained in the open investiga­
tive file. We have applied the legal authorities to general categories of docu­
2 In a letter to the Subcom m ittee dated Septem ber 28, 1984, A ssistant A ttorney G eneral Trott called S enator
G ra ssle y ’s attention to the fact that the Subcom m ittee’s previous requests for a wide variety o f docum ents
pertaining to ju s t one o f the closed investigations covered more than 250,000 docum ents. W e are informed
that the num ber o f docum ents in the C om pany B file that fall w ithin the broad language o f the S ubcom m ittee’s
subpoena is m uch sm aller, in the neighborhood o f 55 to 60 docum ents.
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ments as they have been described to us, and on that basis we have concluded
that a claim of executive privilege very likely would be appropriate for at least
some of the subpoenaed documents pertaining to the open criminal investiga­
tion. We also suggest certain alternative procedures below which should be
considered before the final decision is made to assert executive privilege.3
I. Background
The events leading up to the issuance of the subpoena are as follows: On
February 7, 1984, Vice Chairman Proxmire of the Subcommittee on Interna­
tional Trade, Finance and Security Economics of the Joint Economic Commit­
tee wrote to the Attorney General to inquire about the status of a Department of
Justice investigation of alleged fraudulent shipbuilding claims filed with the
Navy. The Vice Chairman was particularly interested in the Department’s
anticipated treatment of Mr. D, a former head of a division of Company B, who
had offered to provide information to the Department regarding these claims.
In that letter, Senator Proxmire asked five specific questions relating to the
Department’s earlier investigation of the shipbuilding matter, the termination
of the investigation in 1981, and any current Department plans to reopen the
investigation and to speak with Mr. D. In his response of February 17, 1984,
Assistant Attorney General Trott explained that Mr. D was at the time a
fugitive from a federal indictment, and that the Department was attempting to
secure whatever information it could from Mr. D regarding the shipbuilding
matter without compromising that pending prosecution. A further request on
the same subject was written to the Attorney General on February 27, 1984 and
answered by Assistant Attorney General Trott on March 6, 1984. In his re­
sponse, Mr. Trott provided more details regarding the prior investigation and
current negotiations with Mr. D. Other correspondence of little substance was
exchanged.
On May 9, 1984, Senator Proxmire again wrote to the Attorney General with
a list of specific requests for information. Mr. Trott responded in full to some of
those questions, but declined to respond to others. In a letter of June 14, 1984,
he declined to provide the names of specific career employees who had worked
on the earlier investigation without some particular articulated legislative need.
In addition, he asserted that it would be improper for him to provide internal
Department of Justice legal memoranda on a pending matter because prema­
ture public disclosure would prejudice the interests of the investigation. He
informed the Subcommittee that deletion of grand jury material was not practi­
cal because that material was so extensive that its deletion would render the
documents meaningless. In an exchange of letters in late July 1984, Mr. Trott
3 W e understand that the Attorney G eneral has recused him self from any consideration of the subjects w ith
respect to which the subpoena has been issued and that the recusal is in writing. As a m atter o f practice and
statutory construction, the D epartm ent has treated the A ttorney G eneral's recusal from a m atter as the
equivalent o f a disability. U nder the departm ental succession statute, the Deputy Attorney G eneral becom es
A cting A ttorney G eneral w ith respect to the matter. See 28 U .S.C § 508.
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and Senator Proxmire agreed to work together to resolve any outstanding
disclosure issues.
On August 9, 1984, Senators Proxmire and Grassley wrote a joint letter to
Mr. Trott requesting information similar to that specified in the October 1
subpoena. Mr. Trott responded on September 7, 1984. He declined to provide
to Congress the prosecutors’ memoranda and internal deliberative documents
as well as grand jury materials. At the same time, he offered assurances that
efforts were underway to comply with the request to the extent possible. On
September 18, 1984, the two Senators requested that Mr. Trott appear at a joint
hearing on October 1. In a letter dated September 28, 1984, Mr. Trott indicated
that he had reconsidered his position to some extent. Addressing each case
independently, Mr. Trott informed the Senators that the Department would
seek clarification of its obligations under Rule 6(e) from the court that had
supervised the investigations. He agreed that documents relating to the Com­
pany C investigation would be provided to Congress as soon as the question of
grand jury redactions had been resolved by the court. Any material not pro­
tected by Rule 6(e) would be turned over to the Subcommittee. With respect to
the investigation of Company A, Mr. Trott offered to make all non-grand jury
documents available as soon as they could be reviewed. The Company C
investigation, however, presented different considerations because it has been
reopened and is now under active grand jury investigation. He promised,
however, to turn over the materials pertaining to the Company C investigation
at the completion of the case. The October 1 subpoena followed, requesting
materials relating to all three cases.
At the appointed hour on October 4, 1984, Assistant Attorney General Trott
appeared before the Subcommittee and read a prepared statement. That state­
ment explained that the Department of Justice was making available to the
Subcommittee all of the subpoenaed material that, in the judgment of Assistant
Attorney General Trott and his staff, was not prohibited from release by Rule
6(e) of the Federal Rules of Criminal Procedure, which imposes an obligation
to maintain the secrecy of “matters occurring before the grand jury.” Docu­
ments related to the Company A and Company C investigations were therefore
made available after redaction to protect grand jury materials. With respect to
this redacted grand jury material, Mr. Trott explained his intention to file a
motion in the Eastern District of Virginia no later than October 12, 1984 seeking
permission to release the remainder of the subpoenaed material. We have been
informed that such a motion was filed and is currendy pending before the court.
Assistant Attorney General Trott’s statement to the Subcommittee explained
that different treatment is required of information relating to the Company B
investigation, because that matter is currently the subject of an open criminal
investigation that is pending before an active grand jury. Due to the need to
protect the integrity of the prosecutorial process, Mr. Trott declined to release
the files from the Company B investigation, but offered to make them available
on the same basis as the other two cases, “[a]s soon as the [Company B] case is
closed.” The Subcommittee responded to Mr. Trott’s submission with a state­
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ment issued by Senator Grassley on October 5, 1984, and with its October 5
subpoena to the Attorney General. Senator Grassley’s statement set forth the
Senator’s conclusion that the Department had not fully complied with the
October 1 subpoena, but noted that the Executive Branch had requested more
time in which to respond to the request for documents related to Company B.
To summarize, Mr. Trott has made available to the Subcommittee all docu­
ments relative to the closed investigations, with redactions made to enable the
Department to comply with Rule 6(e)’s prohibition on disclosure of matters
occurring before the grand jury. Consistent with a prior representation to the
Subcommittee, the Department has filed a motion with the district court on this
issue to clarify the application of Rule 6(e) to the specific documents contained
in the two closed files. The Department has agreed to provide all documents
from the two closed files that are determined not to contain grand jury materi­
als. With respect to the investigation of Company B, Mr. Trott has informed the
Subcommittee that the Department is hindered in complying with the subpoena
both by Rule 6(e), which presents particular problems because the investiga­
tion is currently under the review of a sitting grand jury, and by the Executive’s
obligation not to compromise an ongoing criminal investigation. On October 9,
the Subcommittee was provided a list of the approximately 56 documents in the
Company B file.
Senator Grassley’s Subcommittee did not indicate why Mr. Trott’s submis­
sion of September 28 and the proposal contained therein were not adequate to
satisfy its needs. Rather, it issued the October 1 subpoena and gave the
Department three days in which to comply. Following Mr. Trott’s appearance
at the October 4 hearing, the Subcommittee again articulated no basis for
disagreement with the legal position taken by Mr. Trott with respect to the
release of documents pertaining to an ongoing criminal investigation. It simply
issued the October 5 statement and subpoena, demanding the release of the
open Company B files, and declaring that “if the deadline of October 19th is not
honored, the Subcommittee will do whatever it must to enforce its subpoena.”
The Senator has declined repeated requests from Assistant Attorney General
McConnell to meet and discuss the issues relating to disclosure of the subpoe­
naed documents. The most recent of Mr. McConnell’s efforts was a letter of
October 17, 1984, in which he offered again to bring Assistant Attorney
General Trott, Associate Attorney General Jensen, or Deputy Attorney General
Dinkins to Senator Grassley’s office for discussions.
II. Impediments to Disclosure
The principal objections to release of certain of the subpoenaed files can be
divided into two categories: the attorneys’ obligation under Federal Criminal
Procedure Rule 6(e) to protect the confidentiality of matters occurring before
the grand jury, and the obligation of the Executive Branch not to disclose
internal information pertaining to an open investigation. In an effort to resolve
the first issue, the Criminal Division has filed a motion with the appropriate
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district court seeking guidance on the applicability of Rule 6(e) to the subpoe­
naed files of the two closed cases. Under the rule, disclosure may be made
“when so directed by a court preliminarily or in connection with a judicial
proceeding.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 220
(1979). With respect to the two closed cases, the Department has expressed its
intention to release all materials that are not protected by the court’s decision
regarding the reach of Rule 6(e). The October 1 subpoena thus appears to us to
have been substantially complied with, at least with respect to the two closed
investigations.
The open investigation raises more serious concerns. On the one hand, the
October 5 subpoena purports to disavow any intention to request grand jury
materials relating to the Company B investigation. On the other hand, the
descriptions of requested documents in the attachment to the subpoena depict
materials which are, for the most part, quintessentially grand jury materials
when requested in the context of an ongoing criminal investigation. For ex­
ample, “all prosecutors’ memoranda,” documents revealing “the status of the
investigation,” and “investigative plans,” as specified in the subpoena, are
precisely the type of information the courts have required to be withheld in
order to protect the integrity of the grand jury process. Thus, the nominal
exclusion of 6(e) materials from the subpoena does not correct an apparent
failure on the part of the Subcommittee to recognize that files of a case under
active consideration by a grand jury may likely be protected in their entirety
from disclosure by Rule 6(e). In light of this uncertainty in the intended scope
of the subpoena, we explain in more detail the restrictions imposed on the
Department by the courts through Rule 6(e).
A. Duty to Protect Grand Jury Secrecy
The secrecy of grand jury activities, which enjoys ancient common law
roots, has received consistent and emphatic protection from the Supreme Court
over the years. See, e.g., United States v. Baggot, 463 U.S. 476 (1983); United
States v. Sells Engineering, 463 U.S. 418 (1983); Douglas Oil Co. v. Petrol
Stops Northwest, 441 U.S. 211, 218 (1979); Pittsburgh Plate Glass Co. v.
United States, 360 U.S. 395, 399-400 (1959); United States v. Proctor &
Gamble Co., 356 U.S. 677, 681-82 (1958). The doctrine is an outgrowth of the
extraordinary powers granted the grand jury. In order to determine when there
is probable cause to believe a crime has been committed and to screen charges
not warranting prosecution, the operation of the grand jury “generally [is]
unrestrained by the technical procedural and evidentiary rules governing the
conduct of criminal trials.” United States v. Calandra, 414 U.S. 338, 343
(1974). Unlike most administrative investigations, the scope of the grand jury’s
inquiry is not “limited narrowly by questions of propriety or forecasts of the
probable result of the investigation, or by doubts whether any particular indi­
vidual will be found properly subject to an accusation of crime.” Id. (quoting
Blair v. United States, 250 U.S. 273, 282 (1919)).
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The broad powers enjoyed by the grand jury, as well as its need to pursue
investigations effectively, have given rise to a “long-established policy that
maintains the secrecy of grand jury proceedings in the federal courts.” United
States v. Proctor and Gamble Co., 356 U.S. at 681. As explained on several
occasions by the Supreme Court, this doctrine serves several distinct purposes:
(1) to prevent the escape of persons whose indictment may be contemplated;
(2) to ensure freedom to the grand jury in its deliberations; (3) to prevent
subornation of peijury or tampering with grand jury witnesses; (4) to encour­
age the free disclosure of information to the grand jury; and (5) to protect from
unfavorable publicity persons who are accused of crimes but are ultimately
exonerated. Id. at 681-82 n.6. Thus, grand jury secrecy is ‘“ as important for the
protection of the innocent as for the pursuit of the guilty.’” United States v.
Sells, 463 U.S. at 424-25 (quoting United States v. Johnson, 319 U.S. 503, 513
(1943)).
This long established policy is currently codified in Rule 6(e) of the Federal
Rules of Criminal Procedure. Under this Rule, no attorney for the Department
of Justice4 may disclose “matters occurring before the grand jury” to any other
person, unless one of five narrow exceptions is met.5 While none of these
exceptions covers disclosure of grand jury materials to a committee of Con­
gress in the present circumstances, it is useful to review the courts’ treatment of
two of these exceptions, which highlight the importance the courts place on
shielding matters that fall within Rule 6(e).
The first of these exceptions permits disclosure of “matters occurring before
a grand jury,” “when so directed by a court preliminary to or in connection with
a judicial proceeding.” Fed. R. Crim. P. 6(e)(3)(c)(i). Narrowly interpreting the
scope of this section, the Supreme Court recently held in United States v.
Baggot, 463 U.S. at 480, that the section provided an exemption only “when the
primary purpose of the disclosure is . . . to assist in preparation or conduct of a
judicial proceeding.” Thus, under the Court’s decision in Baggot, the Internal
Revenue Service could not obtain information pertaining to matters occurring
before the grand jury for use in a civil tax audit because the audit was not
related to “some identifiable litigation.” Id.Although committees of Congress have on occasion sought to claim this
exception as a basis for enforcement of subpoenas seeking material protected
by Rule 6(e), the analysis employed by the Supreme Court in Baggot, as well as
in several lower court decisions denying such claims, does not sustain such an
argument in this case. A congressional committee’s oversight responsibilities
4 The prohibition also covers grand jurors, interpreters, stenographers, operators o f recording devices,
typists w ho transcribe testim ony, and governm ent personnel to whom docum ents are disclosed in ord er to
assist governm ent attorneys in th eir responsibilities w ith respect to the grand jury. See Fed. R. C rim . P.
6(e)(2).
5 The exceptions include (1) disclosure to another governm ent attorney for use in the perform ance o f such
attorney's duty; (2) disclosure to such governm ent personnel as are deem ed necessary to assist an attorney for
the governm ent in the perform ance o f his duties; (3) disclosure directed by a court prelim inary to o r in
connection with a ju d icial proceeding; (4) disclosure by a governm ent attorney to another grand jury, and (5)
disclosure at the request o f a defendant and approved by a court “upon a show ing that grounds may exist for
motion to dism iss the indictm ent because o f m atters occurring before the grand jury." Fed. R. Crim. P. 6(e).
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simply “do not constitute a ‘judicial proceeding’” within the meaning of Rule
6(e). In re Grand Jury Impanelled October 2, 1978, 510 F. Supp. 112, 114
(D.D.C. 1981); see also In re Grand Jury Investigation o f Uranium Industry,
1979-2 Trade Cas. (CCH) H 62,798, at 78,639, 78,643^14 (D.D.C. Aug. 16,
1979). Indeed, the Subcommittee apparently concedes that its inquiry is subject
to the restrictions of Rule 6(e).6
The other exception that has recently been the subject of Supreme Court
examination is set forth in Rule 6(e)(3)(A)(i), which permits disclosure to “an
attorney for the government for use in the performance of such attorneys’
duty.” The language of this provision is exceedingly broad, and would ordi­
narily suggest that attorneys for the government — generally defined in Rule
54(c) of the Federal Rules o f Criminal Procedure to cover all authorized
attorneys in the Department o f Justice — could freely exchange grand jury
materials. In United States v. Sells Engineering, 463 U.S. at 428, however, the
Supreme Court once again interpreted an exception to Rule 6(e) very narrowly,
finding that disclosure among Department of Justice attorneys “is limited to
use by those attorneys who conduct the criminal matters to which the materials
pertain.” As a general matter, therefore, Department attorneys who are assist­
ing the grand jury may not disclose such materials to any other attorney in the
Department for purposes of civil litigation even though there may be a legiti­
mate use for the materials under this exception and the attorneys work for the
same Department.
In reaching this narrow construction of what would otherwise appear to be a
rather broad authorizing provision, the Court in Sells relied heavily on the need
to maintain the secrecy of grand jury proceedings. Among other things, it
suggested that expanding the number of persons with access to grand jury
materials would “threaten] . . . the willingness of witnesses to come forward
and to testify fully and carefully.” 463 U.S. at 432. “If a witness knows or fears
that his testimony before the grand jury will be routinely available for use in
governmental civil litigation or administrative action,” the Court reasoned, “he
well may be less willing to speak for fear that he will get himself into trouble in
some other forum.” Id. Although the decision in Sells obviously does not bear
directly on the question of what materials can be disclosed to a congressional
committee in these circumstances, it does serve to highlight the importance the
Supreme Court places on the protections of Rule 6(e), even to the point of
precluding attorneys within this Department engaged in parallel civil and
criminal investigation from exchanging grand jury material subject to Rule
6(e).
Because the materials sought by the Subcommittee relate to three separate
grand jury investigations, and do not fall within any of the exceptions to Rule
6(e) secrecy, it is necessary for this Department to review each document to
determine whether release of its contents would reveal a “matter occurring
before the grand jury.” While the meaning of this ambiguous phrase has been
6 See O cto b er 5 subpoena; Letter from Sen ato rs Proxm ire and G rassley to Assistant Attorney G eneral Trott
(A ug. 9, 1984).
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the subject of extensive litigation, and some apparently inconsistent judicial
decisions, compare, e.g., Fund fo r Constitutional Government v. National
Archives, 656 F.2d 856, 870 (D.C. Cir. 1981) with, e.g.. United States v.
Weinstein, 511 F.2d 622, 627 n.5 (2d Cir.), cert, denied, 422 U.S. 1042 (1975),
it is generally recognized that Rule 6(e) prohibits the disclosure of any material
that would reveal the strategy or direction of the grand jury investigation, the
nature of the evidence produced before the grand jury, the views expressed by
members of the grand jury, or anything else about the grand jury’s delibera­
tions. See Fund fo r Constitutional Government v. National Archives, 656 F.2d
at 869; United States v. Hughes, 429 F.2d 1293, 1294 (10th Cir. 1970). The
application of this general standard, however, requires sensitive judgments
with respect to all of the documents by attorneys who are familiar with the
particular investigation. Moreover, there exists some uncertainty as to the
application of Rule 6(e) to documents which have been subpoenaed by or
presented to the grand jury, but which are sought for their own sake rather than
to learn what took place before the grand jury. See United States v. Interstate
Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960). Due in part to the
difficulty of these questions, and in response to the Supreme Court decision in
Sells and Baggot, the Department established a Working Group on Rule 6(e),
which recently published an extensive “Guide to Rule 6(e) After Sells and Baggot”
to assist our attorneys in keeping abreast of the developing case law in this area.
In light of the Supreme Court’s recent pronouncements in Sells and Baggot,
we cannot overemphasize the statutory duty of government attorneys to protect
grand jury materials. It is therefore imperative that the Department screen the
documents sought by the Subcommittee’s October 5 subpoena and withhold
those which are prohibited from disclosure under Rule 6(e). Because of the
uncertainty in determining whether some documents are protected, and the
importance of the issue, steps may have to be taken to clarify the application of
Rule 6(e) to any of the open files about which there is doubt.
Members of our Office have discussed certain facts relating to the Company
B file with the Deputy Chief of the Fraud Section, Criminal Division, the
attorney responsible for supervising the investigation. The Deputy Chief be­
lieves that a very high percentage of the substance of the files, perhaps 98 to 99
percent, relates to matters occurring before the grand jury. This high percent­
age is explained by the fact that the investigators in this case were unable to
obtain evidence or cooperation without the assistance of the grand jury process,
so virtually the entire investigation was conducted before the grand jury. The
Deputy Chief has stated that redaction of grand jury materials would not be
feasible because little or nothing of substance would remain. Assistant Attor­
ney General Trott has informed the Subcommittee of the impracticability of
redacting grand jury materials.
Although we have not as yet examined the approximately 56 documents
contained in the Company B file, and although we are not accustomed to
making Rule 6(e) determinations, we rely on the representations of the Crimi­
nal Division in believing that, with regard to many of the documents, the
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Department of Justice may have no discretion to release, nor the Subcommittee
to demand, the grand jury materials contained therein. Rule 6(e) therefore
appears to remove from contention large portions of the documents, and
perhaps some documents in their entirety. Depending upon the decision with
respect to other possible bases for protecting these documents from disclosure
to the Subcommittee, it may be necessary or desirable to seek judicial guidance
in determining which documents or portions of documents are protected from
disclosure under Rule 6(e). We discuss this option further below.
B. Duty to Protect the Integrity o f Ongoing Investigations
In the case of an ongoing criminal investigation, not only are the concerns of
Rule 6(e) heightened because the case is currently before the grand jury, but
also further concerns counsel against compliance with a congressional sub­
poena. The policy of the Executive Branch throughout this Nation’s history has
been generally to decline to provide committees of Congress with access to, or
copies of, open law enforcement files except in extraordinary circumstances.
Attorney General Robert Jackson, subsequently a Justice of the Supreme
Court, articulated this position over forty years ago:
It is the position of this Department, restated now with the
approval of and at the direction of the President, that all investi­
gative reports are confidential documents of the executive de­
partment of the Government, to aid in the duty laid upon the
President by the Constitution to “take care that the laws be
faithfully executed,” and that congressional or public access to
them would not be in the public interest.
Disclosure of the reports could not do otherwise than seri­
ously prejudice law enforcement. Counsel for a defendant or
prospective defendant, could have no greater help than to know
how much or how little information the Government has, and
what witnesses or sources of information it can rely upon. This
is exactly what these reports are intended to contain.
40 Op. Att’y Gen. 45,46 (1941).
Thus the dissemination of law enforcement files would prejudice the cause
of effective law enforcement and, because the reasons for the policy of confi­
dentiality are as sound and fundamental to the administration of justice today
as they were forty years ago, there would appear to be no reason not to adhere
in this instance to the consistent position of previous presidents and attorneys
general. Deputy Assistant Attorney General Kauper explained the concerns:
Over a number of years, a number of reasons have been
advanced for the traditional refusal of the Executive to supply
Congress with information from open investigative files. Most
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important, the Executive cannot effectively investigate if Con­
gress is, in a sense, a partner in the investigation. If a congres­
sional committee is fully apprised of all details of an investiga­
tion as the investigation proceeds, there is a substantial danger
that congressional pressures will influence the course of the
investigation.
Memorandum for Edward L. Morgan, Deputy Counsel to the President, from
Thomas E. Kauper, Deputy Assistant Attorney General, Office of Legal Coun­
sel, Re: Submission of Open CID Investigation Files 2 (Dec. 19, 1969). This
policy with respect to Executive Branch investigations was first expressed by
President Washington and has been reaffirmed by or on behalf of most of our
Presidents, including Presidents Jefferson, Jackson, Lincoln, Theodore
Roosevelt, Franklin Roosevelt, and Eisenhower. No President, to our knowl­
edge, has departed from this position affirming the confidentiality of law
enforcement files.
Other grounds for objecting to the disclosure of law enforcement files
include: the potential damage to proper law enforcement which would be
caused by the revelation of sensitive techniques, methods or strategy; concern
over the safety of confidential informants and the chilling effect on sources of
information; sensitivity to the rights of innocent individuals who may be
identified in law enforcement files but who may not be guilty of any violation
of law; and well-founded fears that the perception of the integrity, impartiality
and fairness of the law enforcement process as a whole will be damaged if
sensitive material is distributed beyond those persons necessarily involved in
the investigation and prosecution process. These concerns are very close to
those which underlie Rule 6(e), but they extend to the entire investigative
process, not just those problems associated with a grand jury.
Not the least internal concern, of course, is that effective and candid delib­
erations among the numerous advisers who participate in a case in various roles
and at various stages of a prosecution would be rendered impossible if confi­
dential deliberative communications were held open to public scrutiny. Cf.
United States v. Nixon, 418 U.S. 683,708 (1974). The deliberative memoranda
that constitute a significant portion of investigative files are ah intrinsic part of
the prosecutorial process. Employees of the Department would be reluctant to
express their personal, unofficial views if those views could be obtained by
Congress upon request. This concern is particularly acute in the context of an
ongoing investigation in which persons called upon to make recommendations
regarding prosecution must be assured that their advice will not be subject to
immediate review and publicity by a congressional committee.
In addition, potential targets of enforcement actions are entitled to protection
from widespread premature disclosure of investigative information. Because
the Congress and the Department of Justice are both part of the United States
Government which prosecutes a criminal defendant, there is “no difference
between prejudicial publicity instigated by the United States through its execu­
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tive arm and prejudicial publicity instigated by the United States through its
legislative arm.” Delaney v. United States, 199 F.2d 107, 114 (1st Cir. 1952).
Pretrial publicity originating in Congress, therefore, can be attributed to the
Government as a whole and can require postponement or other modification of
the prosecution on due process grounds. Id. The discretion of prosecutive
officials to conduct their investigations and trials in the manner they deem to be
the most efficient and constructive can be infringed by precipitous disclosures
which prompt a court to impose remedial procedural obligations upon the
Government.
The Department of Justice also has an obligation to ensure that the fairness
of the decisionmaking with respect to its prosecutorial function is not compro­
mised by excessive congressional pressures, and that the due process rights of
those under investigation are not violated. See Pillsbury v. Federal Trade
C om m ’n, 354 F.2d 952 (5th Cir. 1966). Just as an agency’s ability to fulfill its
statutory obligation may be impermissibly strained by pressure from the Legis­
lative Branch during the administrative decisionmaking process, D.C. Federa­
tion o f Civic A s s ’ns v. Volpe, 459 F.2d 1231, 1246-1247 (D.C. Cir.), cert,
denied, 405 U.S. 1030 (1972), excessive interference with the exercise of
prosecutorial discretion can substantially prejudice the rights of persons under
investigation. Persons who ultimately are not prosecuted may be subjected to
prejudicial publicity without being given an opportunity to cleanse themselves
of the stain of unfounded allegations. Moreover, the injection of impermissible
factors in the decision whether to initiate prosecution offends not only the
rights of the accused, but also the professional obligation of government
attorneys to the integrity of the judicial process and, ultimately, the obligation
of the Executive faithfully to execute the laws.
Article II of the Constitution places the power to enforce the laws squarely in
the Executive Branch of Government. The Executive therefore has the exclu­
sive authority to enforce the laws adopted by Congress, and neither the Judicial
nor Legislative Branches may directly interfere with the prosecutorial discre­
tion of the Executive by directing the Executive to prosecute particular indi­
viduals. United States v. Nixon, 418 U.S. 683, 693 (1974); Confiscation Cases,
74 U.S. (7 Wall.) 454, 457 (1869). This principle was explained in Smith v.
United States, 375 F.2d 243 (5th Cir.), cert, denied, 389 U.S. 841 (1967), in
which the court considered the applicability of the Federal Tort Claims Act to a
prosecutorial decision not to arrest or prosecute persons injuring plaintiffs
business. The court ruled that the government was immune from suit under the
discretionary decision exception of the Act on the ground that the Executive’s
prosecutorial discretion was rooted in the separation of powers under the
Constitution:
The President of the United States is charged in Article 2,
Section 3, of the Constitution with the duty to “take care that the
laws be faithfully executed .. . .” The Attorney General is the
President’s surrogate in the prosecution of all offenses against
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the United States . . . . The discretion of the Attorney General in
choosing whether to prosecute or not to prosecute, or to abandon
a prosecution already started, is absolute.. . .
This discretion is required in all cases.
* * *
We emphasize that this discretion, exercised in even the
lowliest and least consequential cases, can affect the policies,
duties, and success of a function placed under the control of the
Attorney General by our Constitution and statutes.
375 F.2d at 246-47. The court went on to state that this prosecutorial discretion
is protected “no matter whether these decisions are made during the investiga­
tion or prosecution of offenses.” 375 F.2d at 248. “Courts are rightly reluctant
to encroach on the constitutionally-based independence of the prosecutor and
grand jury.” United States v. Samango, 607 F.2d 877, 881 (9th Cir. 1979);
accord Newman v. United States, 382 F.2d 479,480 (D.C. Cir. 1967). A court
“will not interfere with the Attorney General’s prosecutorial discretion unless
it is abused to such an extent as to be arbitrary and capricious and violative of
due process.” United States v. Welch, 572 F.2d 1359, 1360 (9th Cir.), cert,
denied, 439 U.S. 842 (1978).
The Constitution specifically excludes Congress from the decision whether
to prosecute particular cases. A legislative effort to require prosecution of a
specific individual has many of the attributes of a bill of attainder and would
seem to be inconsistent with many of the policies upon which the Constitution’s
prohibition against bills of attainder was based. See Selective Serv. Sys. v.
Minnesota Public Interest Research Group, 468 U.S. 841, 853-54 (1984);
United States v. Brown, 381 U.S. 437, 447 (1965); United States v. Lovett, 328
U.S. 303, 315 (1946). The constitutional role of Congress is to adopt general
legislation that will be applied and implemented by the Executive Branch. “It is
the peculiar province of the legislature to prescribe general rules for the
government of society; the application of those rules to individuals in society
would seem to be the duty of other departments.” Fletcher v. Peck, 10 U.S. (6
Cranch) 87,136 (1810). The Framers intended that Congress not be involved in
such prosecutorial decisions or in questions regarding the criminal liability of
specific individuals. As the Supreme Court stated in Lovett:
Those who wrote our Constitution well knew the danger
inherent in special legislative acts which take away the life,
liberty, or property of particular named persons, because the legisla­
ture thinks them guilty of conduct which deserves punishment.
328 U.S. at 317. Justice Powell recently echoed this concern: “The Framers
were well acquainted with the danger of subjecting the determination of the
rights of one person to the ‘tyranny of shifting majorities.’” INS v. Chadha, 462
U.S. 919, 961 (1983) (Powell, J., concurring). It is well established that courts
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may not require prosecution of specific individuals, even though the Judicial
Branch is expressly assigned the role of adjudicating individual guilt. A fo r ­
tiori, the Legislative Branch, which is assigned the role of passing laws of
general applicability and specifically excluded from questions of individual
guilt or innocence, may not decide on an individual basis who will be pros­
ecuted. ‘“ When the legislative and executive powers are united in the same
person or body,’ says [Montesquieu], ‘there can be no liberty, because appre­
hensions may arise lest the sam e monarch or senate should enact tyrannical
laws to execute them in a tyrannical manner.’” The Federalist No. 47, at 303 (J.
Madison) (C. Rossiter ed. 1961).
Finally, Department of Justice officials, as attorneys, are directed to observe
the Code of Professional Responsibility to the extent it does not prevent their
loyal service to the United States. See 28 C.F.R. 45.735-1 (1983). The Code
prohibits a lawyer who is associated with an investigation from making or
participating in making “an extrajudicial statement that a reasonable person
would expect to be disseminated by means of public communication and that
does more than state without elaboration” already public or highly generalized
information about the matter. Model Code of Professional Responsibility, DR
7-107(A) (1979). Although arguments can be made that the Model Code is not
binding on federal officials, we know of no justification in this instance for
failing to observe the minimum standard of conduct prescribed by the Ameri­
can Bar Association for attorneys in the investigation of criminal matters.
Indeed, courts have held that the prosecution has a special obligation not to
release information that might prejudice the defendant’s right to a fair trial.
Delaney v. United States, 199 F.2d 107, 113 (1st Cir. 1952).
C. Specific Application to this Investigation
The wisdom and necessity of these general principles, developed over years
of judicial, congressional and executive experience, are clearly illustrated by
consideration of the specific damaging effects congressional interference has
had and may continue to have upon the Company B investigation. The princi­
pal trial attorney responsible for the investigation, the Deputy Chief of the
Fraud Section of the Criminal Division, prepared a statement which outlines
the specific ways in which release of prosecutive or investigative memoranda
would interfere with the ongoing investigation of the Electric Boat matter. The
following concerns are drawn from that statement.
The key witness in the Company B matter, Mr. D, has already delayed
cooperating with the Department because he hoped to benefit from congres­
sional pressure on the Department related to his pending indictment in another
matter. Further, certain Members of Congress have declared that they possess
substantial evidence relevant to the Company B investigation but have refused
Department of Justice requests for access to that evidence.
In addition, employees of Company B, both former and present, are in fear of
retribution if their cooperation should be disclosed. The Department may be
266
unable to secure reliable evidence from employees if it cannot guarantee total
confidentiality. Further, disclosure of Federal Bureau of Investigation reports
will effectively preclude the Bureau’s providing assistance in the investigation
and deprive the Department of the valuable resources on which it depends.
Moreover, the pursuit of parallel investigations of the same matter by a congres­
sional subcommittee and the Department of Justice will confuse matters in the
public eye and enable potential targets to continue to play Congress and the
Department against one another.
The Department also has serious concerns about the possibility of jeopardiz­
ing the indictments that may be secured as a result of the investigation. Depart­
ment participation in abusive publicity or inadvertent release of grand jury
material inextricably bound up with other material, whether willing or in
response to a congressional subpoena, could subject an indictment to dismissal.
In sum, the serious concerns for the integrity of the investigative and prosecutive
process that underlie the legal principles discussed above have vivid application
to the current matter.
III. Limitations on Power to Withhold
The policy of confidentiality does not necessarily extend to all material
contained in investigative files. Depending upon the nature of the specific files
and type of investigation involved, certain of the information contained in such
files may be shared with Congress in response to a proper request. Indeed,
Assistant Attorney General Trott has informed the Subcommittee that the
Department will release all documents in the closed files that are judicially
determined not to reveal grand jury material. In the same vein, there may be
documents in even the open Company B files that do not implicate any of the
constitutional or pragmatic problems identified in our discussion. If that is the
case, those documents should be turned over to Congress in response to a proper
request. However, each document should be examined in light of the basic
principles articulated above.
An additional limitation on the assertion of executive privilege is that the
privilege should not be invoked to conceal evidence of wrongdoing or criminal­
ity on the part of executive officers. The documents must therefore be reviewed
for any evidence of misconduct which would render the assertion of privilege
inappropriate. “[I]t should always be remembered that even the most carefully
administered department or agency may have made a mistake or failed to
discover a wrongdoing committed inside or outside the Government.” Study,
Congressional Inquiries Concerning the Decisionmaking Process and Docu­
ments o f the Executive Branch: 1953-1960. The greatest danger attending any
assertion of executive privilege has always arisen from the difficulty, perhaps
impossibility, of establishing with absolute certainty that no mistake or wrong­
doing will subsequently come to light which lends credence to congressional
assertions that the privilege has been improperly invoked. We are unaware of
any serious allegations of criminal or unethical conduct in this matter, but we
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nevertheless strongly recommend a document-by-document review of the rel­
evant materials to avoid any possibility of a misapplication of the privilege.
IV. Needs of Congress
The letters from Senator Proxmire and Senator Grassley do not specify the
purpose for seeking access to an open investigative file. Although they have
cited their intent to review the Department of Justice’s management of certain
fraud investigations, neither the letters nor the subpoenas articulate a reason for
including an ongoing investigation in that review process. In our opinion, the
mere statement of review power falls far short of the test established by the
United States Court of Appeals for the District of Columbia: “The sufficiency
of the Committee’s showing must depend solely on whether the subpoenaed
evidence is demonstrably critical to the fulfillment of the committee’s func­
tions.” Senate Select Committee on Presidential Campaign Activities v. Nixon ,
498 F.2d 725, 731 (D.C. Cir. 1974).
V. Mecommfimdations amid Conclusions
The above discussion emphasizes the fact-specific nature of the determina­
tions required to be made before investigative files can be turned over to
Congress consistent with federal prosecutors’ obligations to the court and to
potential defendants, and the constitutional obligation of the Executive to
execute the laws. The very core of these determinations necessitates a careful
review and deliberation for every document involved. In addition, the complex­
ity of our obligations to preserve the confidentiality of matters occurring before
the grand jury involves a careful examination of each document in the Com­
pany B file. Because of the importance of protecting this investigation and
future Department of Justice investigations, and based upon the conclusion of
the Criminal Division concerning the dangers to the ongoing criminal investi­
gation, we believe documents in the open file should not be disclosed to the
Subcommittee. As the great bulk of the material is, we have been informed,
already protected from disclosure by Rule 6(e), the extent to which an assertion
of executive privilege will be necessary to achieve this result may well depend
upon how far Rule 6(e) is interpreted to reach with respect to the particular
documents at issue. The broadest application of Rule 6(e), of course, might
obviate the need for resort to executive privilege. Even a less expansive
construction of Rule 6(e) would substantially narrow the number of documents in
dispute and focus the points of controversy on a relatively small group of materials.
We recommend, therefore, that careful attention be given to a determination
of the Rule 6(e) issue. If there are some documents or portions of documents
that simply cannot be placed with confidence on one side or the other of the
Rule 6(e) line, and a good-faith motion to the appropriate district court could be
made for clarification of the Rule’s effect on certain specific documents, then
we believe the court’s guidance should be sought. We have a strong interest in
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establishing the extent of our Rule 6(e) obligation regardless of whether the
President decides to invoke his privilege. If he declines to invoke the privilege,
we have an obligation to the court not to reveal matters occurring before the
grand jury. If the President should decide to invoke the privilege, then where
appropriate we will want to claim Rule 6(e), as well as the privilege, as a basis
for refusing to comply with the Subcommittee’s subpoena. Because the Sub­
committee seems to agree that it is not entitled to receive Rule 6(e) documents,
a judicial determination of our Rule 6(e) obligation could serve to narrow the
range of controversy and limit the number of documents for which a claim of
executive privilege would be necessary. Perhaps negotiations with the Subcom­
mittee could be more successful under these circumstances.
Should the President decide not to invoke his privilege, the Department will
still be under an obligation to protect the confidentiality of grand jury materials.
As discussed above, we have been informed by the Criminal Division that the
vast majority of the materials sought by the Subcommittee’s subpoenas are
grand jury materials by definition, although the Subcommittee has indicated
that it is not seeking materials subject to Rule 6(e). Under these circumstances,
it would seem reasonable to take the Subcommittee at its word and make
available only those materials that we determine in good faith are not subject to
Rule 6(e). Again, it may be useful to seek guidance from the supervising court
to help define the scope of our Rule 6(e) obligation not to reveal matters
occurring before a grand jury.
Finally, in the event that there is not adequate time before the return date of
the subpoena to consider and resolve whether a claim of executive privilege
should be asserted by the President, the question may arise whether the docu­
ments may be withheld without the formal assertion of a claim on the basis that
additional time is necessary to determine whether a claim should be made.
We conclude that, inherent in the constitutional doctrine of executive privi­
lege is the right to have sufficient time to review subpoenaed documents in
order to determine whether an executive privilege claim should be made. If the
Executive Branch could be required to respond to a subpoena (either judicial or
congressional) without having adequate opportunity to review the demanded
documents and determine whether a privilege claim would be necessary in
order to protect the constitutional prerogatives of the President, the President’s
ability effectively to assert a claim of executive privilege would be effectively
nullified. Therefore, if the President is to be able to assert executive privilege at
all, he must have adequate time within which to make a determination whether
or not to assert the privilege. Thus, in the right to withhold documents for a time
sufficient to make a determination whether to assert privilege is an element of
executive privilege itself, and it is a justifiable basis upon which to withhold
documents.
This Office has previously concluded that it would be constitutionally imper­
missible to prosecute an Executive Branch official for asserting the President’s
constitutionally based claim of executive privilege. See “Prosecution for Con­
tempt of Congress of an Executive Branch Official Who Has Asserted a Claim
269
of Executive Privilege,” 8 Op. O.L.C. 101 (1984). For the reasons articulated in
that memorandum, it would be equally impermissible to prosecute an Executive
Branch official for withholding subpoenaed documents for a reasonable time
sufficient to make a determination whether executive privilege should be
asserted.
R o b er t B. S hanks
Deputy Assistant Attorney General
Office o f Legal Counsel
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