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 crim inal 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 tim e to review the requested documents.

October 17, 1984

M e m o r a n d u m O p i n i o 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 concerning investigative plans, all legal analyses prepared with reference 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 Dis252
trict of Virginia, commenting on the 1983 report of the Office of 

Policy and Management Analysis, Department of Justice, entitled “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 Senator Grassley’s Subcommittee, at which Mr. Trott appeared for two-and-onehalf 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 materials), 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 commands 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 investigative 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 o f 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 reconcile 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 investigative file. We have applied the legal authorities to general categories of docu2 In a letter to the Subcommittee dated Septem ber 28, 1984, Assistant Attorney General Trott called Senator 

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

pertaining to ju st one o f the closed investigations covered more than 250,000 documents. We are informed 

that the num ber o f docum ents in the Com pany B file that fall within the broad language o f the Subcom m ittee’s 

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

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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 investigation. 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 International Trade, Finance and Security Economics of the Joint Economic Committee 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 response, 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 premature public disclosure would prejudice the interests of the investigation. He 

informed the Subcommittee that deletion of grand jury material was not practical 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 him self 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 o f practice and 

statutory construction, the Department has treated the Attorney G eneral'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.

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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 Company 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 protected 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 statement 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.” Documents 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 state256
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 documents 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 materials. 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 investigation 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 submission 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 subpoenaed 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 subpoenaed 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 example, “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 individual 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 encourage 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 Congress 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 o f 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 prelim inary 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 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 ordinarily 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 assisting 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 legitimate 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 ctober 5 subpoena; Letter from Senators Proxmire and Grassley to Assistant Attorney General Trott 

(Aug. 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 deliberations. 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 believes 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 percentage 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 Attorney 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 Criminal 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 subpoena. 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 investigative reports are confidential documents of the executive department 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 seriously 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 confidentiality 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 Congress is, in a sense, a partner in the investigation. If a congressional committee is fully apprised of all details of an investigation 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 Counsel, 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 knowledge, 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 deliberations among the numerous advisers who participate in a case in various roles 

and at various stages of a prosecution would be rendered impossible if confidential 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 execu263
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 compromised 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 Legislative Branch during the administrative decisionmaking process, D.C. Federation o f Civic A ss’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 exclusive authority to enforce the laws adopted by Congress, and neither the Judicial 

nor Legislative Branches may directly interfere with the prosecutorial discretion of the Executive by directing the Executive to prosecute particular individuals. 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 investigation 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 legislature 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 rtiori, 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 prosecuted. ‘“ When the legislative and executive powers are united in the same 

person or body,’ says [Montesquieu], ‘there can be no liberty, because apprehensions 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 American 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 principal 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 congressional 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

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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 congressional 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 jeopardizing the indictments that may be secured as a result of the investigation. Department 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 criminality 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 Documents 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 wrongdoing 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 relevant 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 functions.” 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 determinations 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 complexity of our obligations to preserve the confidentiality of matters occurring before 

the grand jury involves a careful examination of each document in the Company 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 investigation, 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 Subcommittee 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 Subcommittee 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 documents 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 privilege 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 impermissible to prosecute an Executive Branch official for asserting the President’s 

constitutionally based claim of executive privilege. See “Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim

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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. S h a n k s

Deputy Assistant Attorney General

Office o f Legal Counsel

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