Disclosure of Court-Authorized Interceptions of Wire

Communications to Congressional Committees

A n officer o f the D epartm ent o f Justice m ay disclose tapes o f co u rt-authorized in tercep ­

tions o f w ire com m unications to congressional com m ittees w ithout a c o u rt o rd er, as 

long as such disclosure is appro p riate to the proper perform ance o f his official duties.

G enerally, providing C ongress w ith inform ation in o rd er to help facilitate its co n stitu tio n ­

ally m andated legislative role is part o f the legal obligation o f the E xecutive B ranch; 

how ever, it is also the E xecutive's responsibility to determ ine w h en such disclosure 

w ould im pede its perform ance o f o th er responsibilities, and thus be inappropriate.

May 12, 1980

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY 

GENERAL, CRIMINAL DIVISION

I am responding to your memorandum concerning the dissemination - 

to the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs of tapes of court-authorized interceptions of wire communications. In a January 9, 1980, letter to Deputy 

Assistant Attorney General Irvin B. Nathan, the subcommittee’s chief 

counsel, Marty Steinberg, requested such tapes dealing with “organized 

crime, labor racketeering, and narcotics trafficking.” We conclude, as 

explained below, that this Department is empowered under Title III of 

the Omnibus Crime Control and Safe Streets Act of 1968, as amended,

18 U.S.C. § 2510 et seq., to disclose tapes of court-authorized interceptions of wire communications in response to a proper request or 

demand by a congressional committee unless, in the Department’s judgment, such disclosure would be improper because of our duty faithfully 

to execute the criminal laws.

Ordinarily, this Department is empowered to respond to proper requests for information from congressional committees, unless such information is privileged or protected by a statutory restriction upon 

executive agency disclosure. The only applicable statutory restriction of 

which we are aware in this instance is 18 U.S.C. §2515, which provides:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and 

no evidence derived therefrom may be received in evidence

in any trial, hearing, or other proceeding in or before any

627
court, grand jury, department, officer, agency, regulatory 

body, legislative committee, or other authority of the 

United States, a State, or a political subdivision thereof if

the disclosure of that information would be in violation of

this chapter [i.e., Title III]. [Emphasis added.]

Section 2515 is not an absolute, but a conditional limitation on disclosure. If disclosure is otherwise authorized by Title III, it is not prohibited by §2515.

The authority to disclose intercepted wire communications appears in 

18 U.S.C. § 2517. Subsection (2) of that section provides:

Any investigative or law enforcement officer who, by any 

means authorized by this chapter, has obtained knowledge 

of the contents of any wire or Oral communication or 

evidence derived therefrom may use such contents to the 

extent such use is appropriate to the proper performance 

of his official duties.

Because the proper performance of the official duties of Department 

personnel includes responding to proper requests and demands of congressional committees, the plain language of this subsection would 

appear to authorize the disclosure in question.

Your Division suggests that §2517(2) might not authorize disclosures 

to congressional committees, but might be limited to disclosures in 

connection with “actual criminal investigations and prosecutions.” Although the language of the Senate report explaining § 2517(2) illustrates 

its coverage only with examples that would be so limited, S. Rep. No. 

1097, 90th Cong., 2d Sess. 99-100 (1968), we do not believe such a 

limitation should be inferred from the statute.

As originally drafted by Professor G. Robert Blakey, the section that 

was to become §2517 included language substantially similar to the 

section eventually enacted, but included also the following section:

(d) The contents of any wire or oral communication or 

evidence derived therefrom intercepted in conformity 

with this Chapter may otherwise be disclosed only upon a 

showing of good cause before a judge of competent jurisdiction.

>

Blakey, G. R., “Aspects of the Evidence Gathering Process in Organized Crime Cases: A Preliminary Analysis,” reprinted in President’s 

Commission on Law Enforcement and Administration of Justice, Task

Force Report: Organized Crime Annotations and Consultants' Papers 109 

(1967). It is certain from Professor Blakey’s discussion that he viewed 

disclosures to legislative committees as included within his subsection 

(d), and thus contingent upon a judicial finding of good cause. Id. at 

103-04.

628
Subsection (d), however, was omitted from S. 675, 90th Cong., 1st 

Sess. (1967), which became Title III of the bill eventually enacted as 

the Omnibus Crime Control and Safe Streets Act of 1968. We have 

found no discussion of this omission in the legislative history of S. 675 

or Title III, but its impact would logically have to lead to one of the 

following interpretations. Either Congress, like Professor Blakey, intended subsections (1)—(3) to confer disclosure authority only with 

respect to specific criminal proceedings and to eliminate any disclosure 

authority outside that, context, or Congress intended to permit disclosures to Congress to be made without a court order under subsection

(2), so long as the disclosures would be within the proper performance 

of an investigative or law enforcement officer’s legal duties.

For three reasons, we conclude that the latter interpretation is more 

reasonable. First, the legislative history contains no suggestion that 

Congress intended to protect intercepted communications from proper 

disclosures to congressional committees. Second, Congress ordinarily 

does not protect Executive Branch information in this way, cf, 5 

U.S.C. §552a(b)(9). Third, providing Congress with information in appropriate instances in order to help facilitate its constitutionally mandated legislative role is part of the legal obligation of the Executive 

Branch to help achieve a mutual accommodation of the two branches’ 

functional needs for information. U.S. v. American Telephone and Telegraph Co., 567 F. 2d 121 (D.C. Cir. 1977). We should not lightly assume 

that Congress has proscribed our participation in what otherwise would 

be a constitutionally mandated effort at cooperation.1

It should be noted that, although §2517(2) authorizes the use of the 

contents of intercepted communications “to the extent such use is 

appropriate to the proper performance of [the] official duties” of an 

investigative or law enforcement officer, this section does not require 

automatic compliance with the requests of legislative committees and, 

on its face, mandates a finding by a disclosing officer that the requested 

disclosure would be “appropriate to the proper performance 

of . . . official duties.” There are foreseeable circumstances in which 

the disclosure to congressional committees of the contents of intercepted communications would impede Departmental performance of 

other official duties, e.g., by compromising ongoing investigations or 

divulging the identities of informants. Because the faithful execution of

1 The Criminal Division also suggests that the scope o f “official duties'* as that phrase is used in 

§2517(2) perhaps should be read as comprising only duties in connection w ith criminal actions because 

Congress, when it subsequently wished to accom m odate the disclosure of wiretap information in civil 

actions, amended §2517(3), rather than regarding such disclosures as within the proper perform ance of 

a law enforcement officer’s official duties. Subsection (3) as first enacted in 1968, how ever, expressly 

pertained to testimony in criminal actions and, absent the later amendment, the omission in that 

subsection of any reference to civil actions might have precluded an assumption that such actions were 

covered by §2517(2). The original limitation of §2517(3) to criminal actions, how ever, would not have 

precluded an interpretation o f §2517(2) comprising nonadjudicatory proceedings, e.g., congressional 

hearings. On the different uses o f information in legislative and adjudicatory contexts, see. Senate Select

Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974).

629
the criminal laws and the protection of the constitutional rights of 

potential defendants requires this Department to avoid disruptions in 

the orderly handling of cases, we conclude that the Department might 

reasonably determine that disclosures to Congress, in certain cases, 

would not be “appropriate to the proper performance of . . . official 

duties.” In sum, the proper exercise of authority under this section 

requires a balancing of responsibilities, and the Department may, as 

appropriate, comply with or decline committee requests for the contents of intercepted communications.

L a r r y A. H a m m o n d

Deputy Assistant Attorney General

Office o f Legal Counsel

630