Disclosure of Grand Jury Matters to the President and

Other Officials

T he A ttorney G eneral m ay disclose grand ju ry m aterial covered by R ule 6(e) o f the F ederal R ules o f 

C rim inal Procedure to the P resident and m em bers o f the N ational Security C ouncil w here such d is ­

closure is for the purpose o f assisting the A ttorney G eneral in her en forcem ent o f federal crim inal 

law . A lthough under those circum stances such disclosure m ay be m ade w ithout p rio r ju d ic ia l a p ­

proval, the nam es o f those receiving the grand ju ry m aterial m ust be subm itted to the c o u rt that im ­

p aneled th e grand ju ry in question

T here are a lso circum stances w here the P resident’s constitutional responsibilities m ay p ro v id e ju s tification for the A ttorney G eneral to disclose grand ju ry m atters to the P resident indep en d en t o f the 

provisions o f Rule 6(e). Such circum stances m ight arise, for exam ple, w here the A tto rn ey G eneral 

learns through grand ju ry proceedings o f a grave threat o f terrorism , im plicating the P resid e n t’s resp o n sib ilities under A rticle II o f the C onstitution.

September 21, 1993 

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

This memorandum responds to your request for our legal opinion on the question of whether, and under what circumstances or conditions, the Attorney General 

may disclose grand jury material covered by Rule 6(e) of the Federal Rules of 

Criminal Procedure in briefings presented to the President and other members of 

the National Security Council (“NSC”).

We conclude that the Attorney General may disclose Rule 6(e) materials to the 

President or to other NSC members where such disclosure is for the purpose of 

assisting the Attorney General in her enforcement of federal criminal law. Disclosures satisfying this “criminal law enforcement purpose” standard may be made 

without prior court approval or a showing of particularized need, but the names of 

those who received the information must be supplied to the district court that empaneled the grand jury. Fed. R. Crim. P. 6(e)(3)(A), (B). Subject to obtaining 

prior court approval based on a showing of particularized need, the Attorney General may also make such disclosures “[for] uses related fairly directly to some 

identifiable litigation, pending or anticipated.” United States v. Baggot, 463 U.S. 

476, 480 (1983); see also Fed. R. Crim. P. 6(e)(3)(C)(i). These court-approveddisclosures may be made for the purpose of gaining assistance in civil as well as 

criminal litigation. We do not believe that any of the 6(e) exceptions would apply 

to disclosures made to the President or NSC officials for general policymaking 

purposes, as opposed to obtaining the assistance of those officials for law enforcement purposes.

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Opinions o f the Office o f Legal Counsel

W e also believe, however, that the President’s ultimate responsibility to supervise the executive branch, and in particular his duty to “take Care that the Laws be 

faithfully executed,” U.S. Const, art. II, § 3, may sometimes provide a constitutional justification for the Attorney General to disclose grand jury matters to the 

President independent of the Rule 6(e) exceptions. Disclosures of this nature 

would be supported by basic separation of powers principles where, for instance, 

the President has a special need for such information in order to exercise necessary 

supervision over the Attorney General’s law enforcement functions in matters of 

unusual national significance. Inasmuch as the courts have not directly addressed 

the extent of the President’s Article II power in this particular context, any disclosures of grand jury material made on the basis of that power alone should be undertaken with caution. Judicial sanction for such disclosures might be obtained by 

invoking the court’s inherent supervisory authority to approve disclosures of grand 

jury materials not otherwise covered by one of the Rule 6(e) exceptions in appropriate circumstances.

I. Disclosures under Rule 6(e)

Rule 6(e)(2) of the Federal Rules of Criminal Procedure establishes a “General 

Rule of Secrecy” providing that certain persons, including attorneys for the Governm ent1, “shall not disclose matters occurring before the grand jury, except as 

otherwise provided for in these rules.” See United States v. John Doe, Inc. I, 481 

U.S. 102, 107 (1987). Under this rule, no attorney for the Department of Justice 

may disclose “matters occurring before the grand jury” to any other person, unless 

one of the rule’s enumerated exceptions applies. The specified exceptions are set 

forth under subparagraph (3) of Rule 6(e) and may be summarized as follows:

(1) Disclosure to an attorney for the government for use in the performance of 

that attorney’s duties. (Exception (A)(i));

(2) Disclosure to such government personnel as are deemed necessary to assist 

an attorney for the government in the performance of his duty to enforce federal 

criminal law. (Exception (A)(ii));

(3) Disclosure directed by a court preliminary to or in connection with a judicial 

proceeding. (Exception (C)(i));

, (4) Disclosure at the request of a defendant and approved by a court “upon a 

showing that grounds may exist for a motion to dismiss the indictment because of 

matters occurring before the grand jury.” (Exception (C)(ii));

(5) Disclosures made by an attorney for the government to another federal grand 

jury. (Exception (C)(iii)); and

(6) Disclosures to state or local law enforcement officials permitted by the court 

at the request of any attorney for the government for purposes of aiding prosecu1 For purposes o f Rule 6(e), the Attorney G eneral is an “attorney for the governm ent ” Fed R C nm P.

54(c); see U nited S tates v B ates, 627 F.2d 349, 351 (D C. Cir. 1980).

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Disclosure o f Grand Jury M ullers to the President and O ther O fficials

tion of violations of state or local law that may be brought forth before the grand 

jury. (Exception (C)(iv)).

A. Subsection (A): Self-executing Exceptions

Rule 6(e)(3)(A) sets forth the exceptions to nondisclosure of grand jury matters 

which may be exercised without prior judicial approval or a showing of particularized need. It provides as follows:

(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the 

vote of any grand juror, may be made to —

(i) an attorney for the government for use in the performance of 

such attorney’s duty; and

(ii) such government personnel (including personnel of a state or 

subdivision of a state) as are deemed necessary by an attorney for 

the government to assist an attorney for the government in the performance of such attorney’s duty to enforce federal criminal law.

Id. (emphasis added).

The (A)(i) exception clearly would not apply to disclosures to the President or 

members of the NSC.2 However, the (A)(n) “government personnel” exception 

could apply to such disclosures in circumstances where they are made for the purpose of obtaining the assistance of the President or NSC members in enforcing 

federal criminal law.

Although the (A)(ii) exception was primarily designed to allow disclosures to 

lesser-ranking officials or agents assisting a prosecutor in a particular case, there is 

no persuasive reason why the Attorney General cannot make such disclosures to 

the President or to other senior Administration officials (who do constitute 

“government personnel”) for purposes of obtaining their assistance in carrying out 

federal criminal law enforcement responsibilities. One plausible example of such a 

situation might be the grand jury investigating the terrorist attack on the World 

Trade Center. In such a case, it is possible that the Attorney General’s direction 

and supervision of the case could be facilitated by discussing developments 

(including developments brought forth before the grand jury) with the President 

and NSC members such as the Secretary of State. However, disclosure of such

2 Although the President and some members of the NSC are attorneys, they are not ’‘attorneys for the 

governm ent” in the sense in which that term is used in Rule 6(e)

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Opinions o f the O ffice o f Legal Counsel

grand jury materials could not be made under the (A)(ii) exception for mere purposes of general policymaking.

While we find no case authority specifically addressing (A)(ii) disclosures to the 

President or senior government officials at the Cabinet level, we believe the language of the subsection, its legislative history, and judicial opinions interpreting it 

are compatible with such disclosures under the limitations noted.

The text of the (A)(ii) exception on its face allows for disclosures to the President or to NSC officials in circumstances where the Attorney General (in her capacity as “an attorney for the government”) deems such disclosures necessary to 

obtain the assistance of such officials in the performance of her duties to enforce 

federal criminal law. In this regard, there is no persuasive reason why the term 

“government personnel” as used in subparagraph (A)(ii) should be narrowly construed to exclude the President or Cabinet-level officials.

The (A)(ii) “government personnel” exception was enacted in 1977. Act of July 

30, 1977, Pub. L. No. 95-78, § 2(a), 91 Stat. 319, 319. The Senate Report on the 

1977 amendment explained its origins and purpose as follows:

The Rule as redrafted is designed to accommodate the belief . . . 

that Federal prosecutors should be able, without the time-consuming 

requirement of prior judicial interposition, to make such disclosures 

of grand jury information to other government personnel as they

deem necessary to facilitate the performance o f their duties relating

to criminal law enforcement.

S. Rep. No. 95-354, at 8 (1977), reprinted in 1977 U.S.C.C.A.N. 527, 531 (“ 1977 

Senate Report”) (emphasis added). The Report’s use of the permissive phrase “as 

they deem necessary” strongly supports the view that Congress intended federal 

prosecutors to have broad leeway in deciding what government personnel should 

have access to grand jury materials for purposes of facilitating enforcement functions.

Assessing this legislative history of the (A)(ii) exception in In re Perlin, 589 

F.2d 260 (7th Cir. 1978), the Seventh Circuit stated:

[T]he history of the amendments of rule 6 (e ).. . clearly indicates 

the continuing Congressional support for inter-agency cooperation 

and the active participation of agency personnel, including agency 

attorneys, in grand jury proceedings.

Id. at 267.

The Supreme Court’s opinion in United States v. Sells Engineering, Inc., 463 

U.S. 418 (1983), provides further insight regarding the intended scope of the 

(A)(ii) exception. Sells held that attorneys in the Civil Division of the Department

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D isclosure o f Grand Jury M ailers to the P resident and O ther O fficials

of Justice could not obtain automatic direct disclosure of grand jury materials from 

Department prosecutors under the (A)(i) exception where the purpose of the disclosure was for use in civil suits as opposed to criminal law enforcement. Under 

those circumstances, the Court held that the Civil Division attorneys must instead 

apply for court-approved disclosure under the (C)(i) exception applicable to matters related to both civil and criminal judicial proceedings. In the course of its 

opinion, however, the Court emphasized the sharp distinction between the automatic subsection (A) exceptions applicable to criminal law enforcement and the 

more restrictive, court-approved subsection (C) exceptions applicable in the civil 

context. Referring to materials in the 1977 Senate Report, quoted above, the Court 

said that they

reflectf] the distinction the Senate Committee had in mind: “Federal

prosecutors ” are given a free hand concerning use of grand jury

materials, at least pursuant to their “duties relating to criminal law

enforcement"-, but disclosure of “grand jury-developed evidence for 

civil law enforcement purposes” requires a (C)(i) court order.

Id. at 441-42 (emphasis added).

Other opinions also suggest a relatively expansive interpretation of the 

“government personnel” exemption. In United States v. Cook, 794 F.2d 561 (10th 

Cir.), cert, denied, 479 U.S. 889 (1986), the court upheld applicability of the 

(A)(ii) exception to disclosures to two state police officers who were deputized as 

Special Deputy U.S. Marshals to assist in an investigation of illegal drug activities. 

The court stressed that the officers “were needed to aid in the investigation and that 

the disclosures were necessary to effective aid” and held that they should be 

“included within even the most restrictive definition” of the government personnel 

exemption. Id. at 565; see also United States v. Kilpatrick, 821 F.2d 1456, 1471 

(10th Cir. 1987), aff’d sub nom. Bank o f Nova Scotia v. United States, 487 U.S. 

250 (1988) (“Federal employees assisting the prosecutor in the investigation and 

prosecution of federal criminal violations are permitted access to grand jury materials without prior court permission. However, such support personnel may not use 

the material except for purposes of assisting Government attorneys to enforce federal criminal laws.”); United States v. Claiborne, 765 F.2d 784, 795 (9th Cir. 

1985), cert, denied, 475 U.S. 1120 (1986) (holding that (A)(ii) authorizes disclosure to federal officials who assist the prosecution in collecting evidence for a 

case).

These cases demonstrate that the category of “government personnel” to whom 

disclosures may be made should not be narrowly construed. We therefore see no 

reason to conclude that the President and other officials of the NSC could not 

qualify as “government personnel” for purposes of this exemption. Rather, the key 

factor in determining the applicability of this exemption to disclosure = of the kind

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proposed is the extent to which the disclosure is limited to the purpose of obtaining 

the assistance of the President and other officials in the Attorney General’s criminal law enforcement activities. See Sells, 463 U.S. at 442. If disclosures are confined to that purpose, they should qualify for coverage under the (A)(ii) exception.

If the Attorney General does rely upon the (A)(ii) exception to disclose grand 

jury material without prior court approval in this context, a list naming all the officials to whom such disclosures are made must be submitted to the district court that 

empaneled the grand jury. Fed. R. Crim. P. 6(e)(3)(B). While the rule does not 

explicitly require submission of the list of names before the disclosure is made, it 

has been held that submission of the names should ordinarily be made prior to disclosure of the materials. United States v. Hogan, 489 F. Supp. 1035, 1038 (W.D. 

Wash. 1980) (citing the 1977 Senate Report at 8, where it was stated, “[a]lthough 

not expressly required by the rule, the Committee contemplates that the names of 

such personnel will generally be furnished to the court before disclosure is made to 

them”). We believe that, when practicable, the list of names should be submitted 

prior to the disclosures.

B. Subsection (B): Exceptions Requiring Court Approval

Subsection 6(e)(3)(C) of the rule sets forth four additional exceptions from its 

general ban on disclosure of grand jury materials. The only one of these exceptions relevant to the question posed is the (C)(i) exception, which provides:

(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made —

(i) when so directed by a court preliminarily to or in connection with ajudicial proceeding;

This exception has been narrowly interpreted by the Supreme Court. In United

States v. Baggot, 463 U.S. at 480, the Court held that the (C)(i) exception did not 

provide a basis for disclosing grand jury material to agents of the Internal Revenue 

Service (“IRS”) for purposes of conducting an audit to determine the erstwhile 

grand jury target’s civil tax liability. The Court first noted that disclosure under 

(C)(i) can only be justified where there is a “particularized need” for access to the 

materials and where that need is related to a judicial proceeding. The Court then 

elaborated upon the latter prerequisite:

It reflects a judgment that not every beneficial purpose, or even 

every valid governmental purpose, is an appropriate reason for 

breaching grand jury secrecy. Rather, the Rule contemplates only 

uses related fairly directly to some identifiable litigation, pending or

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Disclosure o f Grand Jury M atters to the President and Other Officials

anticipated .... If the primary purpose of disclosure is not to assist 

in preparation or conduct of a judicial proceeding, disclosure under 

(C)(i) is not permitted.

Id.

The Baggot Court’s restrictive interpretation confines the (C)(i) exception to 

disclosures that are closely and directly related to some identifiable litigation. 

However, to the extent that disclosures of the kind described by the Attorney General could satisfy that standard, there is no apparent reason why this exception 

would not extend to such disclosures. The primary practical value of the (C)(i) 

exception in this context is that it permits disclosures that are related to civil judicial proceedings as well as criminal.

Prior judicial approval for (C)(i) disclosures must be obtained by filing a petition with the district court where the grand jury convened. Fed. R. Crim. P. 

6(e)(3)(D). When the government is the petitioner, ex parte hearings are authorized. Id. If the court approves the petition, the court specifies the manner, time, 

and conditions of the disclosure. Id. 6(e)(3)(C).

II. Disclosures to President under Article II

Apart from the enumerated exceptions from Rule 6(e)’s prohibition against disclosure of grand jury material, we believe that the Attorney General’s disclosures 

of such materials to the President could in some circumstances be authorized on 

broader constitutional grounds. As the repository of all executive power in the 

national government, the President is charged with the duty to “take Care that the 

Laws be faithfully executed.” U.S. Const., art. II, §§ 1,3. Accordingly, there may 

be circumstances in which his constitutional responsibilities entitle the President to 

obtain disclosure of grand jury information that has already been made available to 

the Attorney General, even where that disclosure might not be specifically authorized by one of the exceptions under Rule 6(e).

In a brief memorandum prepared to provide responses to Watergate-related 

press inquiries in 1973, this Office opined that it “is not altogether clear” whether 

the President may obtain access to the transcript of a federal grand jury investigation.3 The memorandum first advised that the restrictive language of Rule 6(e) 

“seemingly precludes the disclosure of [matters occurring before the grand jury] to 

the President because he is not a member of the group specifically authorized to 

obtain this information.” Id. at 1. This aspect of the memorandum may be attributed to the fact that the (A)(ii) exception for “government personnel” had not yet 

been incorporated in the rule at the time the opinion was written. However, the

3 M em orandum for Horace W ebb, Acting Director, Public Information Office, from Robert G. Dixon, 

Assistant Attorney G eneral, Office of Legal Counsel, Re. Questions fro m the Press on the W atergate Investigation (Apr. 30, 1973)

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memorandum went on to state, “it can be argued that the President by virtue of his 

responsibility in administering the executive branch is authorized to obtain the 

transcripts of testimony before a grand jury.” Id. Stressing that all executive 

power is vested in the President, and his particular obligation to take care that the 

laws be faithfully executed, U.S. Const, art. II, §§ 1,3, the memorandum stated:

[T]hat power which is vested in the Attorney General to supervise 

all litigation empowers the President to supervise the litigation and 

to perform any functions incidental thereto because the power of the 

Attorney General is a residue of the more general power vested in 

the President by the Constitution. See also 1 Op. A.G. 453 (1855)

(the heads of all Departments are subject to the direction of the 

President).

Id. at 2. The memorandum added that its opinion on this question was “purely 

hypothetical” because the President had ordered that no transcripts of testimony 

before the Watergate grand jury were to be sent to the W hite House. Id.

A memorandum opinion prepared for the President by Attorney General Griffin 

Bell in 1977 provides additional pertinent insight regarding the President’s constitutional authority in working with the Attorney General. Proposals Regarding an

Independent Attorney General, 1 Op. O.L.C. 75 (1977). That opinion expressed 

“serious doubts” as to the constitutionality of certain proposed legislation providing that the Attorney General should be appointed for a definite term and removable from office only for cause or malfeasance. The opinion placed great stress on 

the President’s constitutional responsibility as Chief Executive to supervise the law 

enforcement functions of the Attorney General, stating:

Indeed, the President must be held accountable for the actions of the 

executive branch; to accomplish this he must be free to establish 

policy and define priorities. Because laws are not self-executing, 

their enforcement obviously cannot be separated from policy considerations. The Constitution contemplates that the Attorney General should be subject to policy direction from the President. As 

stated by the Supreme Court: “The Attorney General is . . . the 

hand of the President in taking care that the laws of the United 

States . . . be faithfully executed.” Ponzi v. Fessenden, 258 U.S.

254, 262 (1922). Removing the Attorney General from the President’s control would make him unaccountable to the President, who 

is constitutionally responsible for his actions.

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D isclosure o f Grand Jury M atters to the President and O ther Officials

Id. at 76; see also Myers v. United States, 272 U.S. 52, 133 (1926) (stressing that 

“[e]ach head of a department is and must be the President’s alter ego in the matters 

of that department where the President is required by law to exercise authority”).

The foregoing Attorney General’s opinion focused on the President’s supervisory authority over the Attorney General in the context of the removal power. The 

constitutional principles it invoked are nevertheless pertinent to the President’s 

ability to obtain information needed to discharge his responsibilities relative to the 

Attorney General’s functions and to “take care that the laws are faithfully executed.” In some circumstances, we believe that the President’s Article II responsibilities in this area may independently justify the Attorney General’s disclosure to 

him of pertinent grand jury information. A prime example of such circumstances 

might be a grand jury investigation of major international terrorist activity in the 

United States, involving a threat to domestic peace and national security. In such a 

case, the President should be able to share grand jury information legitimately possessed by the Attorney General in order to aid the President’s handling o f the overall law enforcement crisis. Similarly, presidential access to such grand jury 

information would also appear justified under the removal power, see Myers, in a 

case where, for example, the integrity or loyalty of a presidential appointee holding 

an important and sensitive post was implicated in the grand jury investigation.

Although we find no opinions directly addressing this issue, several cases suggest that the constitutional duties of the respective branches may provide independent support for their access to grand jury information. In Matter o f Grand

Jury Subpoena o f Rochon, 873 F.2d 170, 174 (7th Cir. 1989), the court observed 

as follows in reversing a district court order disqualifying the Attorney General 

from participating in a grand jury investigation on alleged conflict of interest 

grounds:

[A] federal district court order prohibiting the Attorney General of 

the United States from participating in a grand jury investigation is 

no small matter, even if the investigation could continue in his absence. Since initiating a criminal case by presenting evidence before the grand jury is ‘“an executive function within the exclusive 

prerogative of the Attorney General,” ’ United States v. Chanen, 549 

F.2d 1306, 1312-13 (9th Cir.) (quoting In re Persico, 522 F.2d 41,

54-55 (2d Cir. 1975)), cert, denied, 434 U.S. 825, 98 S. Ct. 72, 54 

L.Ed.2d 83 (1977), such an order raises sharp separation-of-powers 

concerns. As the Ninth Circuit has stated, although the ‘“ grand jury 

is subject to a supervisory power in the courts, aimed at preventing 

abuses of its processes or authority,’” id. at 1313 (quoting 1 Wright,

Federal Practice and Procedure § 101, at p. 151 (1969)), “the separation-of-powers principle imposes significant limits on it.”

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Opinions o f the O ffice o f Legal C ounsel

Id. (quoting United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir. 1985)).

Two lower court decisions of note have upheld congressional access to grand 

jury materials in aid of that branch’s constitutional power of impeachment. In 

Grand Jury Proceedings o f Grand Jury No. 81-1, 669 F. Supp. 1072, 1074-75 

(S.D. Fla.), aff’d, 833 F.2d 1438 (1 1th Cir. 1987), the court held that the House 

Judiciary Committee was entitled to receive the record of grand jury proceedings in 

furtherance of its impeachment investigation of Judge Alcee Hastings. Although 

the com m ittee’s access to the materials was separately justified on the basis of Fed. 

R. Crim. P. 6(e)(3)(C)(i), the court held that the disclosure was also justified on the 

basis of, inter alia, the Impeachment Clause. U.S. Const, art. I, § 2; see also In re

Report and Recommendation of June 5, 1972 Grand Jury’, 370 F. Supp. 1219 

(D.D.C.), mandamus denied sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 

1974) (district court’s decision granting the W atergate grand jury’s request that its 

report on the matters it investigated be submitted to the House Judiciary Committee, upheld by court of appeals in denying mandamus relief).

These decisions should be read with some caution because the disclosures of the 

grand jury materials at issue were directly related to impeachment proceedings — 

which have been viewed as within the coverage of the Rule 6(e)(3)(C)(i) exception 

— and were undertaken only after obtaining prior judicial approval. Nonetheless, 

they demonstrate the courts’ willingness to recognize an independent constitutional 

basis for disclosures of grand jury information outside the provisions of Rule 6(e). 

Thus, if congressional access to grand jury materials may be independently justified on the basis of its Article I power, it would be anomalous to contend that 

presidential access to such materials could not be justified on the basis of the 

President’s Article II powers.

In the absence of judicial precedent on this point, however, any disclosure of 

grand jury matter to the President on this basis should be cautiously undertaken 

and reserved for matters of clear executive prerogative in areas where the Rule 

6(e)(3)(A)(ii) exception could not be used. Because such disclosures would be 

based on the President’s inherent constitutional powers rather than Rule 6(e), the 

rule’s various procedural requirements would not be applicable. Nonetheless, the 

risk of constitutional confrontation could be minimized by seeking the approval of 

the district court that impaneled the grand jury, invoking the court’s inherent 

authority to disclose grand jury materials for reasons other than those specified in 

Rule 6(e).

A federal court’s “inherent” power to authorize disclosure of grand jury matters 

outside the parameters of Rule 6(e) was recognized by the Eleventh Circuit in In re

Petition, 735 F.2d 1261, 1268 (11th Cir.), cert, denied, 469 U.S. 884 (1984). At 

issue was whether the Judicial Council of the Eleventh Circuit could have access to 

records of a federal grand jury in connection with the Council’s investigation of 

Judge Alcee Hastings under the Judicial Councils Reform and Disability Act, 28 

U.S.C. § 372. The court recognized that none of the Rule 6(e) exceptions applied

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Disclosure o f Grand Jury M atters to the President and Other Officials

to the request, although it noted that the investigation in question was “very similar” to the “judicial proceedings” covered by the Rule 6(e)(3)(C)(i) exception. 

Nonetheless, the Eleventh Circuit affirmed the district court’s holding that Rule 

6(e) did not preclude it “from fashioning an alternate method for disclosure under 

its general supervisory authority over grand jury proceedings and records.” 735 

F.2d at 1267-68.4 As the court explained the inherent power doctrine:

[I]t has been authoritatively said that [Rule 6(e)] is not the true 

source of the district court’s power with respect to grand jury records but rather is a codification of standards pertaining to the scope 

of the power entrusted to the discretion of the district court.

Id. at 1268. After citing examples of how the courts have influenced the development of Rule 6(e) through the exercise of their “inherent power” over grand jury 

materials, the court stated:

These examples from the history of Rule 6(e) indicate that the exceptions permitting disclosure were not intended to ossify the law, 

but rather are subject to development by the courts in conformance 

with the rule’s general rule of secrecy.

Id. at 1269. The court concluded that “it is certain that a court’s power to order 

disclosure of grand jury records is not strictly confined to instances spelled out in 

the rule,” id. at 1268, but it stressed that the courts can only order disclosure outside the rule in “exceptional circumstances consonant with the rule’s policy and 

spirit.” Id. at 1269.

Although the Eleventh Circuit’s “inherent power” doctrine has not been widely 

cited by the courts in published opinions, it does provide one recognized framework for seeking judicial approval of disclosures of grand jury material to the 

President based on constitutional authority rather than on Rule 6(e).

WALTER DELLINGER 

Acting Assistant Attorney General

Office of Legal Counsel

4 The Eleventh C ircuit's holding on this issue has been criticized in one district court decision In M atter

o f Electronic Surveillance, 596 F. Supp 991, 1001 (E D M ich 1984), the court asserted that the “ Eleventh 

C ircu it's reliance on the inherent powers doctrine is suspect.’” In support of this position, the district court 

contended that the Suprem e C ourt's decision in U nited States v. Baggot 463 U S. 476 (1983) had im plicitly 

rejected extra-Rule 6(e) disclosures because the trial court in B aggot had found that disclosure w as authorized under the inherent powers doctrine, but the Suprem e C ourt had held against disclosure because the 

standards of Rule 6(e)(3)(C )(l) had not been satisfied. W e do not read the Baggot decision as taking any 

position, one way or the other, on the inherent powers doctrine because, as the Court noted, certiorari there 

was lim ited to the narrow question of whether an IRS civil tax audit is ‘‘prelim inary] to or in connection 

with a judicial proceeding ’ under the (C)(i) exception Id at 478 (alteration in original)

69