Legislation Providing for Court-Ordered Disclosure

of Grand Jury Materials to Congressional Committees

Proposed legislation authorizing personnel of committees of Congress to obtain court-ordered 

release of matters occurring before a grand jury would violate separation of powers principles 

by encroaching upon the Executive’s control of prosecutorial matters and would entail a 

major departure from longstanding practices and traditions of grand jury secrecy.

Because the Executive alone is entrusted with the power to enforce the laws, the Executive alone 

should make the day-to-day decisions as to whether the release of law enforcement materials 

to Congress would interfere with its prosecutorial discretion.

Independent access by Congress to grand jury materials without the consent of the Department of 

Justice would seriously endanger grand jury secrecy and thereby weaken the grand jury as an 

institution.

Access to grand jury materials by other Executive Branch agencies should be limited to cases 

where access is needed for law enforcement purposes and should require the approval of the 

Justice Department.

September 24, 1985

M e m o r a n d u m O p i n i o n f o r t h e A c t i n g A s s i s t a n t A t t o r n e y G e n e r a l ,

O f f i c e o f L e g i s l a t i v e a n d I n t e r g o v e r n m e n t a l A f f a ir s

You have requested the comments of this office on S. 1562, introduced by 

Senator Grassley, which would amend the False Claims Act. The portion of the 

bill of interest to this office is § 5, which would amend Rule 6(e) of the Federal 

Rules of Criminal Procedure. First, the amendment would permit automatic 

disclosure of “matters occurring before a grand jury” to Justice Department 

attorneys for civil purposes without a court order.1 Second, the amendment 

would expand the types of proceedings for which other executive departments 

and agencies may gain access to Rule 6(e) material to include not only “judicial 

proceedings,” but also other matters within their jurisdiction, such as adjudicative and administrative proceedings. Significantly, the bill would allow these 

departments and agencies to seek disclosure without the approval of the Department of Justice. Finally, the bill would also allow personnel of any committee of Congress directly to obtain court-authorized release of “matters occurring before the grand jury” upon a showing of “substantial need.”2 At present, 

Congress has no independent ability to petition the judiciary for release of 

“matters occurring before the grand jury.”

1 The phrase “matters occurring before a grand jury” has been broadly defined by the courts to include not 

only materials presented to a grand jury but also large categories of law enforcement files that may relate to a 

grand jury. See infra Part III. In this memorandum we will sometimes refer to “matters occurring before a 

grand ju ry ” as “Rule 6(e) material ”

2The A dm inistration’s proposed amendments to Rule 6(e) would allow federal agencies with the consent of 

the D epartm ent o f Justice to obtain court-authonzed release of “matters occurring before the grand jury” 

upon a showing of “substantial need.” T he A dm inistration's amendment makes no mention of independent 

congressional access to Rule 6(e) material.

86
The Office of Legal Counsel strongly opposes any provision that would 

permit Congress independently to petition the courts for Rule 6(e) material. By 

giving Congress an independent right of access to large portions of law enforcement files through the judiciary, the amendment would codify legislative 

encroachment into the Executive’s exclusive authority to enforce the law. 

Because it is the fundamental premise of the separation of powers that the 

Executive alone is entrusted with the enforcement of the laws, the Executive 

alone should make the day-to-day decisions as to whether the release of law 

enforcement materials to Congress, a branch of government constitutionally 

forbidden to prosecute individual cases, would interfere with the Executive’s 

prosecutorial discretion.

Moreover, this amendment would represent a radical departure from the long 

tradition of grand jury secrecy. This secrecy has evolved to protect the proper 

functioning of the grand jury and has aided the Executive Branch in the fair 

execution of the laws. Independent access to grand jury materials by Congress 

without the consent of the Department of Justice would seriously endanger the 

secrecy on which participants in the grand jury process have come to rely, and 

therefore be extremely injurious to the grand jury as an institution.

The amendment would also have a serious impact on both the frequency and 

the method of resolution of disputes over Executive privilege. By arguably 

providing Congress with the standing to obtain a ready judicial forum for these 

disputes, the proposed amendment undoubtedly would multiply the number of 

confrontations over executive privilege and encourage judicial resolution of political disputes that have in the past been handled by compromise and negotiation. As a 

consequence, the President would be handing over his privilege, the scope of which 

he has largely determined for himself, to the judiciary for its review. The nature and 

scope of executive privilege might thereby be profoundly changed.

Finally, with respect to access to grand jury materials by other executive 

departments and agencies, we believe that access should be limited to law 

enforcement purposes and that such access must be obtained with the approval 

and representation of this Department so that the integrity of the Department’s 

criminal investigations and prosecutions can be protected from untimely disclosure.

I. The Proposed Amendment is Inconsistent

with the Separation of Powers

In our view, the Executive Branch must be able to control congressional 

access to law enforcement documents to prevent legislative pressures from 

impermissibly influencing its prosecutorial decisions. 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 

squarely in the Executive Branch of the federal government. See Buckley v. 

Valeo, 424 U.S. 1, 119-20 (1976) (per curiam). 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

87
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).

Indeed 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 to 

forestall tyranny. As James Madison stated in The Federalist No. 47:

The reasons on which Montesquieu grounds his maxim [that the 

legislative, executive and judicial departments 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 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). For this 

reason, the Constitution specifically excludes Congress from the decision 

whether to prosecute particular cases. U.S. Const, art. I, § 9, cl. 3. A legislative 

effort to require prosecution of specific individuals 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. 841,854-55 (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 317.3

Moreover, the Department of Justice has an obligation flowing from the Due 

Process Clause 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. FTC, 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. F ed’n o f Civic A ss’ns v. Volpe, 459 F.2d 1231, 1246—47 

(D.C. Cir.), cert, denied, 405 U.S. 1030 (1972), excessive interference with the

3 Article II's specific grant o f exclusive authority to the Executive to enforce the laws and Article I's 

specific prohibition against legislative prosecution provide a principled basis for allowing administrative 

agencies, which are part o f the Executive Branch, to obtain court-authorized release of Rule 6(e) material for 

law enforcem ent purposes, w hile prohibiting Congress from doing so.
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, 

such as political pressures, into the decision whether to initiate prosecution not only 

endangers the rights of the accused, but also impairs 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.

In addition, potential targets of enforcement actions are entitled to protection 

from widespread premature disclosure of investigative information. Because 

Congress and the Department of Justice are both part of the United States 

Government that prosecutes a criminal defendant, 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 F.2d 107, 114 (1st Cir. 1952). 

Therefore, pretrial publicity originating in Congress can be attributed to the 

government as a whole and can result in postponement, modification, or even 

termination 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. To be sure, these separation of powers and 

due process concerns are present to a greater degree when Congress is seeking 

files of an open investigation than when Congress is seeking information about 

an investigation that is closed. It has been the traditional position of this 

Department that intolerable practical restraints on discretion may result and the 

effectiveness and fairness of investigations may be impaired if Congress becomes, in a sense, a partner in an ongoing investigation. If a congressional 

committee is fully apprised of all details of an investigation as it proceeds, 

there is a substantial chance that congressional pressures will influence the 

course of the investigation.

Separation of powers and due process concerns are also present, however, 

when Congress is seeking investigative files of closed investigations. Indeed, 

because one of the reasons Congress sometimes seeks files of closed investigations is to put pressure on the Executive to reopen an investigation, the same 

concerns outlined above may often attend requests for closed files. Moreover, 

the possibility that persons who ultimately are not prosecuted may be subjected 

to prejudicial publicity is as great from congressional inquiry into closed as 

into open investigations. For these reasons, the Office of Legal Counsel opposes any compromise with Congress on an amendment to Rule 6(e) whereby 

Congress would be given access to Rule 6(e) material from closed investigations, especially if that access is independent of executive control. Because the 

Executive is uniquely charged with enforcing the law, it should retain the 

power in the first instance to decide what law enforcement materials to release 

to Congress after its independent evaluation of the separation of powers and

89
due process concerns described above. In our view, it would be a great mistake 

to codify the rather artificial distinction between closed and open investigations, when both kinds of investigations implicate concerns of constitutional 

magnitude that are best evaluated on a case-by-case basis.

II. Tib® Ammeiidnneimtt Breaches Grand JJery Secrecy

and Thus Impairs Proper Enforcement

of the ILaw by the Executive

Due process concerns were at the heart of the historical origin of the grand 

jury. Indeed, the concept of grand jury secrecy originated as a means of 

preventing the government from bringing undue pressure on the grand jury’s 

decision. In the celebrated trial of the Earl of Shaftesbury in 1681, the grand 

jurors insisted on hearing the witnesses to the charge of treason in secret 

despite the demands of the Crown that they be heard in public.

G rand ju ry secrecy is still justified by the need to protect the w itnesses and grand jurors from undue pressures. Today, however, it is not 

disclosure to the prosecution but disclosure to the public that is seen as 

destructive of the effective functioning of the grand jury. Indeed, secrecy is now thought to be o f im portance to the Executive in obtaining 

indictm ents, because jurors may be apprehensive that their votes to 

indict may be disclosed. D ou glas O il Co. v. P etro l Stops N orthw est,

441 U.S. 211, 219 (1979). Secrecy is also im portant to the Executive for 

preparation o f its case, because it facilitates free and open discussion by 

w itnesses and com plainants. Id. M oreover, secrecy facilitates the capture o f an accused who is in fact indicted and prevents the accused from 

obtaining collusive testimony in the hope of blocking the indictment. Id.

Finally, secrecy protects the accused who is charged by the complaint before 

the grand jury but is exonerated by the grand jury’s refusal to indict. Id.

Independent access by Congress, or even by other agencies, to grand jury 

material without the concurrence of the prosecution would obviously endanger 

the cloak of secrecy that has historically been seen as essential to the functioning of the grand jury and therefore to the effective enforcement of the criminal 

law. Because the Department of Justice is charged with preparing federal 

criminal cases, it is in a far better position than Congress, other executive 

agencies, or even the judiciary to determine how essential secrecy is to the 

preparation of a particular case. Moreover, the Department of Justice has the 

preeminent institutional interest in preserving secrecy because the confidence 

of future participants in the grand jury process in the secrecy of the proceedings 

is necessary for continued proper execution of the laws. Therefore, this Office 

opposes the proposed amendment’s grant of independent access, not only to 

Congress but also to other agencies, which cannot be presumed to have the 

perspective or the institutional interest to give proper weight to the need for 

grand jury secrecy. Even other Executive agencies should gain access to Rule 

6(e) material only with the consent of the Department of Justice.

90
III. The Amendment Will Lead to More Disputes Over Executive

Privilege and Will Change the Method of Resolving These Disputes

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, law enforcement files except in extraordinary circumstances.4 Attorney General Robert Jackson 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). 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.5

The proposed amendment is likely to multiply the number of disputes over 

executive privilege with respect to law enforcement files and radically change 

their method of resolution. Although it has been argued that the issues of 

executive privilege may be separated from the issue of congressional access to 

Rule 6(e) material, the proposed amendment, as presently drafted, is unlikely to 

permit such separation. The term “matters occurring before a grand jury” has 

been interpreted broadly to include any documents that reveal any matter 

occurring before a grand jury. Therefore, it is generally recognized that the

4 The justifications for invoking executive privilege with respect to investigative files are rooted in the 

principles of separation of powers and due process outlined in Part 1 above. An additional reason for 

withholding investigative files 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 the 

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 an intnnsic part o f the prosecutorial process. Employees of the Department would be reluctant to express 

their personal, unofficial views if those views could be obtained by congressional request. This justification 

for withholding may apply to files o f both open and closed investigations

5 Some withholding of Executive Branch files has been accomplished through the President’s formal 

invocation of executive privilege. More often negotiations have been undertaken by executive officers to 

protect the integrity of their files through communication o f their concerns to Congress before resorting to a 

formal Presidential assertion of the privilege.

91
phrase includes any material that would reveal the strategy or direction of the 

grand jury investigation, the nature of the evidence produced before the grand 

jury, or the views of the grand jury’s deliberations expressed by its members. 

See, e.g., Fund fo r Constitutional Gov't v. National Archives, 656 F.2d 856, 

870 (D.C. Cir. 1981); United States v. Hughes, 429 F.2d 1243, 1294 (10th Cir. 

1970). The broad definition means that Rule 6(e) material will substantially 

overlap with the kind of law enforcement files that the Executive has traditionally attempted to withhold.

As the amendment is currently drafted, Congress may obtain a court order 

directing the release of all Rule 6(e) material. There is no provision that excepts 

material over which the Executive has a claim of privilege from the potential 

scope of the order. Nor is there any provision that even requires that the 

Executive be provided with notice that Congress is seeking such release. 

Assuming that a notice provision were added to the amendment, the Executive 

would no doubt have the opportunity to assert executive privilege in court in 

order to prevent Congress from obtaining sensitive documents. Although the 

possibility of asserting executive privilege would be thereby preserved, the 

method of resolving disputes over its assertion would be transformed. Instead 

of arguing and negotiating with Congress on a case-by-case basis on the scope 

of the privilege, the President and his officers would in effect be handing over 

his privilege to the courts for their frequent adjudication.

The effects of this change should not be underestimated. As a practical 

matter, the provision of a ready judicial forum for resolution of disputes over 

executive privilege would undoubtedly multiply the number of potential confrontations. In the past, Congress has had to engage in long and hard negotiations for access to documents over which there was a potential claim of 

executive privilege. Such negotiations have entailed both the expenditure of 

time and political capital. Because access to the judicial forum provided for in 

the amendment would furnish a relatively painless and rapid means of resolving these disputes, it would likely lead to more congressional challenges to the 

withholding of investigative documents on executive privilege grounds.

Moreover, the nature of executive privilege itself may be transformed by 

changing the forum in which disputes over executive privilege are resolved. 

The President would in effect be sharing his privilege with the judiciary.6 The 

judicial forum would give the judiciary the opportunity to frame principles to 

govern the President’s assertion of executive privilege against a congressional 

demand for information.7 In our view, constant judicial oversight is certain

6 B ecause disputes over executive privilege between Congress and the Executive have been resolved in an 

ad hoc fashion in the past, courts have left the permissible scope of such assertions almost totally undefined. 

In only one case has a court clearly adjudicated the legitimacy o f the assertion of executive privilege against 

a congressional dem and for information. S ee Senate Select Comm, on Presidential Campaign Activities v. 

N ixon, 498 F.2d 725 (D.C. Cir. 1974) (en banc).

7 Assum ing that a dispute over executive privilege between the Executive and Congress were properly 

before a court, it seems unlikely that the court would decline to hear it on the grounds that it was a 

nonjusticiable political question. In Senate Select C om mittee, the court declined to rule that the dispute 

betw een the W atergate Committee and President Nixon was a nonjusticiable political question. Moreover, it

Continued

92
eventually to erode the President’s control over his privilege. Nor does such an 

expanded judicial role comport well with the functioning of democratic government as a whole. The assertion of executive privilege has always been a 

practical undertaking that is not governed by fixed rules but by considerations 

of prudence that take into account political factors such as public reaction. In 

this, as in other areas of dispute between the Legislature and the Executive, 

more can be constructively accomplished by accommodation between the 

elected branches of government than by declarations of principle from a 

judiciary that is necessarily remote from the political exigencies of the situation.

Because the President holds his power of executive privilege as a trustee for 

his successors, we believe that it would be a violation of that trust to approve a 

provision that would have the effect of making the judiciary a frequent partner 

in determination of the scope of the privilege, even if under present political 

circumstances such a partnership would seem advantageous. For this reason, 

the Office of Legal Counsel is constrained to oppose any provision that 

purports to provide Congress with standing to obtain Rule 6(e) material and 

thereby enjoy the opportunity to gain ready judicial resolution of executive 

privilege questions. We would therefore oppose a compromise that would 

permit committees of Congress directly to obtain court-authorized release of 

“matters occurring before the grand jury” upon a showing of “particularized 

need.” The higher showing does not in our view rectify the proposed 

amendment’s inconsistency with the separation of powers or its potential to 

expand the power of the judiciary over the exercise of executive privilege.

Conclusion

For the foregoing reasons, the Office of Legal Counsel urges the Department 

to oppose strongly the provisions of S. 1562 that afford Congress a mechanism 

for obtaining access to grand jury materials. We believe that support for these 

provisions, even if revised to limit access to closed cases, would adversely 

affect fundamental notions of the separation of powers.

C h a r l e s J. C o o p e r

Acting Assistant Attorney General

Office o f Legal Counsel

7 (. . . continued)

is also unlikely that a court would at present conclude that Congress lacked standing to bring an action based 

on a dispute with the Executive over its request for law enforcement documents. The issue of whether 

Congress has standing to bring suit to protect its governmental powers is sharply disputed at present. 

Compare Barnes v. Kline, 759 F.2d 21, 26 (D.C. Cir. 1985) (holding that both houses of Congress and 

individual members o f Congress had standing to challenge a pocket veto on the grounds that the veto 

improperly nullified their votes) with id. at 41 (Bork, J., dissenting) (stating that neither the H ouses of 

Congress nor individual members of Congress have standing to challenge the pocket veto). Nevertheless, a 

court might well hold that the case for congressional standing is strengthened by the enactment o f this 

amendment. See Sierra Club v. M orton, 405 U.S. 727, 732 n.3 (1972) (“The question whether the litigant is a 

proper party to request adjudication . . . is within the power o f Congress to determine/*).

93