Congressional Subpoenas of Department of Justice Investigative Files

Congressional Subpoenas of Department of Justice

Investigative Files

Congressional subpoenas seeking information from the Department of Justice concerning two

closed investigations and one open investigation may be complied with only if the materials

sought may be revealed consistent with 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, and with the President’s constitutional obligation to executive faithfully the laws of the

United States.

If it is determined after review of the requested documents that compliance with the subpoena

would jeopardize the ongoing criminal investigation, we would advise the President to assert

executive privilege to ensure the continued confidentiality of the documents contained in the

open investigative file.

Because of the importance of the process of determining 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 time to review the requested documents.

October 17, 1984

M e m o r a n d u m O p in io n f o r t h e D e p u t y A t t o r n e y G e n e r a l

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 General or designated custodian is not

necessary if the requested materials are delivered to the Subcommittee. We read this to mean that the Acting

Attorney General for this matter is free to designate a custodian of the documents for the purpose of

responding to this subpoena. Any assertion of executive privilege, however, must be authorized by the

President and made 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 of 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 Subcommittee dated September 28, 1984, Assistant Attorney General Trott called Senator

G rassley’s attention to the fact that the Subcom mittee’s previous requests for a wide variety o f documents

pertaining to just one of the closed investigations covered more than 250,000 documents. We are informed

that the number of docum ents in the Company B file that fall within the broad language of the Subcommittee’s

subpoena is much sm aller, in the neighborhood of 55 to 60 documents.

254

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 We understand that the Attorney General has recused himself from any consideration of the subjects with

respect to which the subpoena has been issued and that the recusal is in writing. As a matter of practice and

statutory construction, the Department has treated the Attorney General's recusal from a matter as the

equivalent of a disability. Under the departmental succession statute, the Deputy Attorney General becomes

Acting Attorney General with respect to the matter. See 28 U.S.C § 508.

255

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

256

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

257

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)).

258

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 of recording devices,

typists who transcribe testimony, and government personnel to whom documents are disclosed in order to

assist government attorneys in their responsibilities with respect to the grand jury. See Fed. R. Crim. P.

6(e)(2).

5 The exceptions include (1) disclosure to another government attorney for use in the performance of such

attorney's duty; (2) disclosure to such government personnel as are deemed necessary to assist an attorney for

the government in the performance of his duties; (3) disclosure directed by a court preliminary to or in

connection with a judicial proceeding; (4) disclosure by a government attorney to another grand jury, and (5)

disclosure at the request of a defendant and approved by a court “upon a showing that grounds may exist for

motion to dismiss the indictment because of matters occurring before the grand jury." Fed. R. Crim. P. 6(e).

259

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 of 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 of Criminal Procedure to cover all authorized

attorneys in the Department of 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 October 5 subpoena; Letter from Senators Proxmire and Grassley to Assistant Attorney General Trott

(Aug. 9, 1984).

260

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 for 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

261

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 of 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

262

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

263

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

Comm’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 Ass’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

264

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

265

may not require prosecution of specific individuals, even though the Judicial

Branch is expressly assigned the role of adjudicating individual guilt. A for

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 same 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

267

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

268

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 e r t B. Sh ank s

Deputy Assistant Attorney General

Office of Legal Counsel

270