Congressional Requests for Information

from Inspectors General Concerning

Open Criminal Investigations

Long-established executive branch policy and practice, based on consideration of both Congress’ oversight authority and principles of executive privilege, require that in the absence of extraordinary circumstances an Inspector General must decline to provide confidential information about an open criminal investigation in response to a request 

pursuant to Congress’ oversight authonty

The reporting provisions of the Inspector General Act do not require Inspectors General to disseminate to Congress confidential information pertaining to open criminal 

investigations.

March 24, 1989

Mem orandum O pinion for t h e C hairman

Investigations/Law E nforcem ent C om m ittee

P r e sid e n t’s C ouncil on Integrity and E fficiency

Introduction and Summary

This memorandum is in response to your request for the opinion of this 

Office on the obligations of Inspectors General (“IGs”) with respect to 

congressional requests for confidential information about open criminal 

investigations. Specifically, you have asked this Office to advise you as to 

the obligations of the IGs with respect to (1) requests based on Congress’ 

oversight authority and (2) requests based on the reporting requirements 

of the Inspector General Act of 1978 (“the Act”), Pub. L. No. 95-452, 92 

Stat. 1101 (1978) (codified at 5 U.S.C. app. 3).1

As discussed below, when pursuant to its oversight authority Congress 

seeks to obtain from an IG confidential information about an open criminal investigation, established executive branch policy and practice, 

based on consideration of both Congress’ oversight authority and principles of executive privilege, require that the IG decline to provide the 

information, absent extraordinary circumstances. With respect to congressional requests based on the congressional reporting requirements of 

the Act, we have concluded as a matter of statutory construction that 

Congress did not intend those provisions to require production of confi1 On March 8,1989, Larry Elston of your staff oraJly confirmed to Paul Colbom of this Office that these 

are the questions on which you seek our opinion

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dential information about open criminal investigations. Accordingly, IGs 

are under no obligation under the Act to disseminate confidential law 

enforcement information.

I. Congressional Requests Based on Oversight Authority

The decision on how to respond to a congressional request for information from an IG based on Congress’ oversight authority requires the 

weighing of a number of factors arising out of the separation of powers 

between the executive and legislative branches. The principal factors to 

be weighed are the nature of Congress’ oversight interest in the information and the interest of the executive branch in maintaining confidentiality for the information.

A. Congress’ Oversight Authority

The constitutional role of Congress is to adopt general legislation that 

will be implemented — “executed” — 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 courts have recognized that this general 

legislative interest gives Congress investigatory authority. Each House of 

Congress has power, “through its own process, to compel a private individual to appear before it or one of its committees and give testimony 

needed to enable it efficiently to exercise a legislative function belonging 

to it under the Constitution.” McGrain v. Daugherty, 273 U.S. 135, 160 

(1927). The issuance of subpoenas in aid of this function “has long been 

held to be a legitimate use by Congress of its power to investigate,” 

Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504 (1975), 

provided that the investigation is “related to, and in furtherance of, a 

legitimate task of the Congress.” Watkins v. United States, 354 U.S. 178, 

187 (1957). The inquiry must pertain to subjects “on which legislation 

could be had.” McGrain v. Daugherty, 273 U.S. at 177.

In short, Congress’ oversight authority

is as penetrating and far-reaching as the potential power to 

enact and appropriate under the Constitution.

Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into those areas 

in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive

province of one of the other branches of the Government.

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Barenblatt v. United States, 360 U.S. 109, 111-12 (1959) (emphasis 

added).

The execution of the law is one of the functions that the Constitution 

makes the exclusive province of the executive branch. Article II, Section 

1 provides that “the executive Power shall be vested in a President of the 

United States of America.” Article II, Section 3 imposes on the President 

the corresponding duty to “take Care that the Laws be faithfully executed.”2 In particular, criminal prosecution is an exclusively executive 

branch responsibility. Heckler v. Chaney, 470 U.S. 821, 832 (1985); 

Buckley v. Valeo, 424 U.S. 1, 138 (1976); United States v. Nixon, 418 U.S. 

683, 693 (1974). Accordingly, neither the judicial nor legislative branches 

may directly interfere with the prosecutorial discretion of the executive 

branch by directing it to prosecute particular individuals.3 Indeed, in 

addition to these general constitutional provisions on executive power, 

the Framers specifically demonstrated their intention that Congress not 

be involved in prosecutorial decisions or in questions regarding the criminal liability of specific individuals by including in the Constitution a prohibition against the enactment of bills of attainder. U.S. Const, art. I, § 9, 

cl. 3. See United States v. Lovett, 328 U.S. 303, 317-18 (1946); INS v.

Chadha, 462 U.S. 919, 961-62 (1983) (Powell, J., concurring).

On the other hand, Congress’ oversight authority does extend to the 

evaluation of the general functioning of the Inspector General Act and 

relevant criminal statutes, as well as inquiring into potential fraud, waste 

and abuse in the executive branch. Such evaluations may be seen to be 

necessary to determine whether the statutes should be amended or new 

legislation passed. See Watkins v. United States, 354 U.S. at 187. Given 

the general judicial reluctance to look behind congressional assertions of 

legislative purpose, an assertion that Congress needed the information 

for such evaluations would likely be deemed sufficient in most cases to 

meet the threshold requirement for congressional inquiry. This general 

legislative interest, however, does not provide a compelling justification

1 One of the fundamental rationales for the separation of powers is that the power to enact laws and 

the power to execute laws must be separated in order to forestall tyranny As James Madison stated in 

Federalist No 47

The reasons on which Montesquieu grounds his maxim [that the legislative, executive and 

judicial departm ents should be separate and distinct] are a further demonstration of his 

meaning “When the legislative and executive powers are united in the same person or body,” 

says he, “there can be no liberty, because apprehensions may anse lest the same monarch or 

senate should ettact tyrannical laws to execute them in a tyrannical m an ner"

The Federalist No 47, at 303 (James Madison) (Clinton Rossiter ed., 1961).

3 See Heckler v Chaney, 470 U.S at 832 (“[T]he decision of a prosecutor in the Executive Branch not 

to in d ict... has long been regarded as the special province of the Executive Branch, inasmuch as it is the 

Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully executed ’”), 

United States v Nixon, 418 U S. at 693 (“[T]he Executive Branch has exclusive authority and absolute 

discretion to decide whether to prosecute a case.”)

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for looking into particular ongoing cases.4 Accordingly, we do not believe 

that as a general m atter it should weigh heavily against the substantial 

executive branch interest in the confidentiality of law enforcement information. We discuss that interest next.

B. Executive Privilege

Assuming that Congress has a legitimate legislative purpose for its 

oversight inquiry, the executive branch’s interest in keeping the information confidential must be assessed. This subject is usually discussed in 

terms of “executive privilege,” and we will use that convention here.5 

Executive privilege is constitutionally based. To be sure, the Constitution 

nowhere expressly states that the President, or the executive branch generally, enjoys a privilege against disclosing information requested by the 

courts, the public, or the legislative branch. The existence of such a privilege, however, is a necessary corollary of the executive function vested 

in the President by Article II of the Constitution, has been asserted by 

numerous Presidents from the earliest days of our Nation, and has been 

explicitly recognized by the Supreme Court. United States v. Nixon, 418 

U.S. at 705-06. There are three generally-recognized components of executive privilege: state secrets, law enforcement, and deliberative process. 

Since congressional requests for information from IGs will generally 

implicate only the law enforcement component of executive privilege, we 

will limit our discussion to that component.

It is well established and understood that the executive branch has 

generally limited congressional access to confidential law enforcement 

information in order to prevent legislative pressures from impermissibly 

influencing its prosecutorial decisions. As noted above, the executive 

branch’s duty to protect its prosecutorial discretion from congressional 

interference derives ultimately from Article II, which places the power to 

enforce the laws exclusively in the executive branch. If a congressional 

committee is fully apprised of all details of an investigation as the investigation proceeds, there is some danger that congressional pressures will 

influence, or will be perceived to influence, the course of the investigation. Accordingly, the policy and practice of the executive branch 

throughout our Nation’s history has been to decline, except in extraordinary circumstances, to provide committees of Congress with access to,

4 For instance, Congress’ interest in evaluating the functioning of a criminal statute presumably can be 

satisfied by numerical or statistical analysis of closed cases that had been prosecuted under the statute, 

or (at most) by an analysis of the closed cases themselves.

5 The question, however, is not strictly speaking just one of executive privilege While the considerations that support the concept and assertion of executive privilege apply to any congressional request for 

information, the privilege itself need not be claimed formally vis-a-vis Congress except in response to a 

lawful subpoena, in responding to a congressional request for information, the executive branch is not 

necessarily bound by the limits of executive privilege.

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or copies of, open law enforcement files. No President, to our knowledge, 

has departed from this position affirming the confidentiality and privileged nature of open law enforcement files.6

Attorney General Robert H. Jackson well articulated the basic position:

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).

Other grounds for objecting to the disclosure of law enforcement files 

include the potential damage to proper law enforcement that would be 

caused by the revelation of sensitive techniques, methods, or strategy; 

concern over the safety of confidential informants and the chilling effect 

on other 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.7 See generally Congressional Subpoenas of Department

of Justice Investigative Files, 8 Op. O.L.C. 252, 262-66 (1984).

6 See generally Assertion of Executive Privilege m Response to Congressional Demands for Law

Enforcement Files, 6 Op O L.C. 31 (1982) (regarding request for open law enforcement investigative files 

of the Environmental Protection Agency); Memorandum for the Deputy Attorney General from Robert 

B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re. Refusals by Executive

Branch to Provide Documents from Open Criminal Investigative Files to Congress (Oct. 30, 1984).

7 In addition, potential targets of enforcement actions are entitled to protection from premature disclosure of investigative information It has been held that there is “no difference between prejudicial publicity instigated by the United States through its executive arm and prejudicial publicity instigated by the 

United States through its legislative arm.” Delaney v United States, 199 F2d 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

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C. Accommodation with Congress

The executive branch should make every effort to accommodate 

requests that are within Congress’ legitimate oversight authority, while 

remaining faithful to its duty to protect confidential information.8 See

generally United States v. AT&T, 567 F.2d 121, 127-30 (D.C. Cir. 1977); 

Assertion of Executive Privilege in Response to a Congressional

Subpoena, 5 Op. O.L.C. 27, 31 (1981) (“The accommodation required is 

not simply an exchange of concessions or a test of political strength. It is 

an obligation of each branch to make a principled effort to acknowledge, 

and if possible to meet, the legitimate needs of the other branch.”).

The nature of the accommodation required in responding to a congressional request for information clearly depends on the balance of 

interests between the Executive and Congress. For its part, Congress 

must be able to articulate its need for the particular materials — to 

“point[] to ... specific legislative decisions that cannot responsibly be 

made without access to materials uniquely contained” in the presumptively privileged documents (or testimony) it has requested, and to show 

that the material “is demonstrably critical to the responsible fulfillment of 

the Committee’s functions.” Senate Select Comm, on Presidential

Campaign Activities v. Nixon, 498 F.2d 725, 731, 733 (D.C. Cir. 1974). 

The more generalized the executive branch interest in withholding the 

disputed information, the more likely it is that this interest will yield to a 

specific, articulated need related to the effective performance by 

Congress of its legislative functions. Conversely, the more specific the 

need for confidentiality, and the less specific the articulated need of 

Congress for the information, the more likely it is that the Executive’s 

need for confidentiality will prevail. See Nixon v. Administrator of

General Services, 433 U.S. 425, 446-55 (1977) (discussion of balance of

8 President Reagan’s November 4, 1982 Memorandum for the Heads of Executive Departments and 

Agencies on “Procedures Governing Responses to Congressional Requests for Information” states:

The policy of this Administration is to comply with Congressional requests for information 

to the fullest extent consistent w ith the constitutional and statutory obligations of the 

Executive Branch . .. [Ejxecutive privilege will be asserted only in the most compelling circum stances, and only after careful review dem onstrates that assertion of the privilege is necessary Historically, good faith negotiations between Congress and the Executive Branch 

have minimized the need for invoking executive privilege, and this tradition of accommodation should continue as the primary means of resolving conflicts between the Branches 

Only rarely do congressional requests for information result in a subpoena of an executive branch official or in other congressional action. In m ost cases the informal process of negotiation and accommodation recognized by the courts, and m andated for the executive branch by President Reagan’s 1982 

mem orandum , is sufficient to resolve any dispute. On occasion, however, the process breaks down, and 

a subpoena is issued by a congressional committee or subcommittee. At that point, it would be necessary to consider asking the President to assert executive privilege. Under President Reagan’s memorandum, executive privilege cannot be asserted vis-a-vis Congress w ithout specific authorization by the 

President, based on recommendations made to him by the concerned department head, the Attorney 

General, and the Counsel to the President. We have no reason to believe that President Bush envisions a 

different procedure.

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interests); United States v. Nixon, 418 U.S. at 707-13 (same); United

States v. AT&T, 567 F.2d at 130-33 (same).

In light of the limited and general congressional interest in ongoing 

criminal investigations and the specific and compelling executive branch 

interest in protecting the confidentiality of such investigations, the executive branch has generally declined to make any accommodation for congressional committees with respect to open cases: that is, it has consistently refused to provide confidential information. However, on occasion 

after an investigation has been closed, and after weighing the interests 

present in the particular case, the executive branch has briefed Congress 

on prosecutorial decisions and has disclosed some details of the underlying investigation.9

In conclusion, although in the absence of a concrete factual setting we 

cannot analyze the case for withholding any particular document or information in response to a congressional oversight request, we can advise 

that as a general matter Congress has a limited oversight interest in the 

conduct of an ongoing criminal investigation and the executive branch 

has a strong interest in preserving the confidentiality of such investigations. Accordingly, in light of established executive branch policy and 

practice, and absent extraordinary circumstances, an IG should not provide Congress with confidential information concerning an open criminal 

investigation.

II. Congressional Requests Based on the Inspector General Act

The second question raised by your opinion request is whether the 

reporting provisions of the Inspector General Act require that IGs provide 

Congress with confidential information on open criminal investigations 

that is not normally shared with Congress under established executive 

branch policy and practice with respect to oversight requests. We believe 

that both the text and legislative history of these provisions demonstrate 

that they do not impose such a requirement.

9 Once ail investigation has been closed without further prosecution, some of the considerations previously discussed lose their force Access by Congress to details of closed investigations does not pose 

as substantial a risk that Congress will be a partner in the investigation and prosecution or will otherwise 

seek to influence the outcome of the prosecution, likewise, if no prosecution will result, concerns about 

the effects of undue pretnal publicity on a jury would disappear. Still, such records are not automatically disclosed to Congress. Obviously, much of the information in a closed cnminaJ enforcement file — 

such as unpublished details of allegations against particular individuals and details that would reveal 

confidential sources and investigative techniques and methods — would continue to need protection 

In addition, the executive branch has a long-term institutional interest in maintaining the confidentiality of the prosecutorial decisionmaking process The Supreme Court has recognized that “human experience teaches that those who expect public dissemination of their remarks may well tem per candor with 

a concern for appearances and for their own interests to the detriment of the decisionmaking process ” 

United States v Nixon, 418 U S at 705. It is therefore important to weigh the potential “chilling effect” 

of a disclosure of details of the prosecutorial deliberative process in a closed case against the immediate 

needs of Congress

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The Act establishes a number of congressional reporting requirements 

with respect to the activities of the IGs. Most generally, section 4(a)(5) 

requires each IG

to keep the head of [the agency within which his office is 

established] and the Congress fully and currently informed, 

by means of the reports required by section 5 and otherwise, concerning fraud and other serious problems, abuses, 

and deficiencies relating to the administration of programs 

and operations administered or financed by such [agency], 

to recommend corrective action concerning such problems, abuses, and deficiencies, and to report on the 

progress made in implementing such corrective action.

Section 5(a) requires each IG to prepare semi-annual reports summarizing the activities of his office, and section 5(b) requires that the head of 

the IG’s agency submit these reports to the appropriate committees or 

subcommittees of Congress within 30 days of receiving them. Section 

5(d) requires each IG to

report immediately to the head of the [agency] whenever 

the [IG] becomes aware of particularly serious or flagrant 

problems, abuses, or deficiencies relating to the administration of programs and operations of such [agency]. The 

head of the [agency] shall transmit any such report to the 

appropriate committees or subcommittees of Congress 

within seven calendar days, together with a report by the 

head of the agency containing any comments such head 

deems appropriate.

Finally, section 5(e) provides in subsection (1) that none of the reporting 

requirements “shall be construed to authorize the public disclosure” of 

certain information, while also providing in subsection (3) that neither 

the reporting requirements nor any other provision of the Act “shall be 

construed to authorize or permit the withholding of information from the 

Congress, or from any committee or subcommittee thereof.”

In our judgment, nothing in the text of these provisions provides that 

confidential law enforcement materials pertaining to ongoing cases must 

be transmitted to Congress. To the contrary, the statutory scheme set out 

in section 5 of the Act merely envisions that the periodic reports from 

each IG to Congress will be a general “description” and “summary” of the 

work of the IG. This view of section 5 is supported by the Act’s legislative 

history. In proposing the congressional reporting requirements that were 

ultimately enacted into law,10 the Senate committee made it clear that it 

did not contemplate that reports from the IGs would be so specific that

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confidential investigative information would fall within the scope of the 

report and, in any event, it was not intended that such information would 

be required. For example, with respect to section 5(a)(4)’s requirement 

that semi-annual reports contain “a summary of matters referred to prosecutive authorities and the prosecutions and convictions which have 

resulted,” the committee indicated:

By using the word “summary” in subsection (a)(4), the 

committee intends that Congress would be given an 

overview of those matters which have been referred to 

prosecutive authorities. It would be sufficient, for instance, 

for an [IG] at HUD to include in his report the fact that he 

had referred 230 cases of fraud in FHA programs to the 

Justice Department for further investigation and prosecution. It would be highly improper and often a violation of 

due process for an IG’s report to list the names of those 

under investigation or to describe them with sufficient precision to enable the identities of the targets to be easily 

ascertained. However, once prosecutions and convictions 

have resulted, the IG could certainly list those cases, if he 

deems such a listing appropriate.

S. Rep. No. 1071 at 30.

The committee noted that section 5(b)’s requirement that semi-annual 

reports be submitted to Congress “contemplates that the IG’s reports will 

ordinarily be transmitted to Congress by the agency head without alteration or deletion." Id. at 31 (emphasis added). The committee went on to 

stress, however, that

nothing in this section authorizes or permits an [IG] to disregard the obligations of law which fall upon all citizens and 

with special force upon Government officials. The Justice 

Department has expressed concern that since an [IG] is to 

report on matters involving possible violations of criminal 

law, his report might contain information relating to the 

identity of informants, the privacy interest of people under 

investigations, or other matters which would impede law

10 The Act was originally considered by the House of Representatives as H.R. 8588, which contained 

similar reporting requires to those of the Senate bill Compare House version, sections 3-4, 124 Cong 

Rec. 10,399 (1978), with Senate version, sections 4-5,124 Cong. Rec 32,029-30 (1978). The legislative history regarding the House provisions is much less extensive than that for the Senate provisions. See generally H.R. Rep. No. 584, 95th Cong., 1st Sess 13-14 (1977) H R 8588 passed the House, but failed in the 

Senate, which considered instead a substitute bill reported from the Senate Committee on Governmental 

Affairs See 124 Cong Rec. 30,949 (1978), S. Rep. No. 1071,95th Cong., 2d Sess (1978) The House accepted the substitute Senate bill and it was enacted into law

85
enforcement investigations. /Is noted above, the committee

does not envision that a report by the [IG] would contain

this degree of specificity. In any event, however, the intent

of the legislation is that the [IG] in preparing his reports,

must observe the requirements of law which exist today

under common Law, statutes, and the Constitution, with

respect to law enforcement investigations....

The committee recognizes, however, that in rare circumstances the [IG], through inadvertence or design, may 

include in his report materials of this sort which should not 

be disclosed even to the Congress. The inclusion of such 

materials in an [IG’s] report may put a conscientious agency 

head in a serious bind. The obligation of an agency head is 

to help the President “faithfully execute the laws.” Faithful 

execution of this legislation entails the timely transmittal, 

without alteration or deletion, of an [IG’s] report to 

Congress. However, a conflict of responsibilities may

arise when the agency head concludes that the [IG’s]

report contains material, disclosure of which is improper

under the law. In this kind of rare case, section 5(b) is not

intended to prohibit the agency head from deleting the

materials in question.n

Id. at 31-32 (emphasis added).12

The committee also made it clear that the same principles apply with 

equal force to the requirement of section 5(d) that the IG reports to 

agency heads on “particularly serious or flagrant problems” also be submitted to Congress. In stating with respect to this section that “as in subsection (b), the agency head has no general authority or right to delete or 

alter certain provisions of the report” id. at 33, the committee clearly

11 “In the rare cases in which alterations or deletions have been made, the committee envisions that an 

agency head’s com ments on an [IG’s] report would indicate to the Congress that alterations or deletions 

had been made, give a descnption of th e materials altered or deleted, and the reasons therefore ” Id at 

32.

12 In addition to thus stating its intention with respect to the confidentiality of law enforcement information, the com mittee also expressed its understanding that section 5(b) cannot override executive privilege with respect to deliberative process information

[T]he committee is aware that the Supreme Court has, in certain contexts, recognized the 

President’s constitutional privilege for confidential communications or for information related to the national security, diplomatic affairs, and military secrets Insofar as this privilege

is constitutionally based, the committee recognizes that subsection 5(b) cannot override

it In view of the uncertain nature of the law m this area, the committee intends that subsection 5(b) ivill nei the) accept n or reject any particular view of Presidential privilege but

only preserve fo r the President the opportunity to assert privilege where he deems it necessary. The com mittee intends th a t these questions should be left for resolution on a caseby-case basis as they anse in the course of implementing this legislation 

Id. at 32 (emphasis added) (citations om itted)

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implied that the agency head retained the ability — as in the “rare case” 

identified with respect to subsection (b) — to delete “materials ... which 

should not be disclosed even to the Congress.” Id. at 32.

Conclusion

Long-established executive branch policy and practice, based on consideration of both Congress’ oversight authority and principles of executive privilege, require that in the absence of extraordinary circumstances 

an IG must decline to provide confidential information about an open 

criminal investigation in response to a request pursuant to Congress’ 

oversight authority. With respect to congressional requests„based on the 

reporting requirements of the Inspector General Act, we similarly conclude that the reporting provisions of the Inspector General Act do not 

require IGs to disseminate confidential information pertaining to open 

criminal investigations.

D ouglas W. Km iec

Assistant Attorney General

Office of Legal Counsel

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