Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight
Released: 2019-01-10T00:00:00

Introduction

The Fifth Amendment to the U.S. Constitution provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." This provision requires that a federal prosecutor, in order to charge a suspect with a serious federal crime, secure the assent of an independent investigative and deliberative body comprising citizens drawn from the jurisdiction in which the crime would be tried. Federal grand juries serve two primary functions: (1) they aid federal prosecutors in investigating possible crimes by issuing subpoenas for documents, physical evidence, and witness testimony; and (2) they determine whether there is sufficient evidence to charge a criminal suspect with the crime or crimes under investigation.

Traditionally, the grand jury has done its work in secret. Secrecy prevents those under scrutiny from fleeing or importuning the grand jurors, encourages full disclosure by witnesses, and protects the innocent from unwarranted prosecution, among other things. The long-established rule of grand jury secrecy is enshrined in Federal Rule of Criminal Procedure 6(e), which provides that government attorneys and the jurors themselves, among others, "must not disclose a matter occurring before the grand jury." Accordingly, as a general matter, persons and entities external to the grand jury process are precluded from obtaining transcripts of grand jury testimony or other documents or information that would reveal "what took place" in the proceedings, even if the grand jury has concluded its work and even if the information is sought pursuant to otherwise-valid legal processes.

At times, the rule of grand jury secrecy has come into tension with Congress's power of inquiry when an arm of the legislative branch has sought protected materials pursuant to its oversight function. For example, some courts have determined that the information barrier established in Rule 6(e) extends to congressional inquiries, noting that the Rule "contains no reservations in favor of . . . congressional access to grand jury materials" that would otherwise remain secret. Nevertheless, the rule of grand jury secrecy is subject to a number of exceptions, both codified and judicially crafted, that permit grand jury information to be disclosed in certain circumstances (usually only with prior judicial authorization). And because Rule 6(e) covers only "matters occurring before the grand jury," courts have recognized that documents and information are not independently insulated from disclosure merely because they happen to have been presented to, or considered by, a grand jury. As such, even if Rule 6(e) generally limits congressional access to grand jury information, Congress has a number of tools at its disposal to seek materials connected to a grand jury investigation.

This report begins with an overview of the standards governing—and exceptions applicable to—grand jury secrecy under Federal Rule of Criminal Procedure 6(e). The report also addresses whether and how the rule of grand jury secrecy and its exceptions apply to Congress, including the circumstances under which Congress may obtain grand jury information and what restrictions apply to further disclosures. Concluding this report is a discussion of past legislative efforts to amend Rule 6(e) in order to provide congressional committees with access to grand jury materials.

Brief Overview of the Federal Grand Jury12

Federal law requires the various United States District Courts to order one or more grand juries to be summoned when the public interest requires. Grand jurors must be "selected at random from a fair cross section of the community in the district or division wherein the court convenes," among other things. Grand jury panels consist of 16 to 23 members.

After selection, the court swears in members of the grand jury; names a "foreperson and deputy foreperson"; and instructs the panel. Federal grand juries sit until discharged by the court, but generally for no longer than 18 months, with the possibility of one six-month extension.

The authority of a federal grand jury is sweeping, but it is limited to the investigation of possible violations of federal criminal law triable in the district in which it is sitting. The grand jury may begin its examination even in the absence of probable cause or any other level of suspicion that a crime has been committed within its reach.

The grand jury does not conduct its business in open court, nor does a federal judge preside over its proceedings. The grand jury meets behind closed doors, with only the jurors, attorney for the government, witnesses, someone to record testimony, and possibly an interpreter present.

The grand jury acts on the basis of evidence presented by witnesses called for that purpose. The attorney for the government will ordinarily arrange for the appearance of witnesses before the grand jury, will suggest the order in which they should be called, and will take part in questioning them. The grand jury most often turns to the prosecutor for legal advice and to draft most of the indictments, which the grand jury returns.

Grand jury witnesses usually appear before the grand jury under subpoena. Subpoenas may be issued and served at the request of the panel itself, although the attorney for the government usually arranges the case to be presented to the grand jury. Unjustified failure to comply with a grand jury subpoena may result in a witness being held in contempt. A witness who lies to a grand jury may be prosecuted for perjury or for making false declarations to the grand jury.

Neither a potential defendant nor a grand jury target nor any of their counsel has any right to appear before the grand jury unless invited or subpoenaed. Nor does a potential defendant, a grand jury target, or their counsel have any right to present exculpatory evidence or substantive objection to the grand jury.

There are four possible outcomes of convening a grand jury—(1) indictment; (2) a vote not to indict; (3) discharge or expiration without any action; or (4) submission of a report to the court under certain circumstances. A grand jury indictment may issue upon the vote of 12 of its members that probable cause exists to believe the accused committed the crime charged.

Overview of Grand Jury Secrecy

Historical Underpinnings

"Since the 17th Century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye." An early justification for maintaining the secrecy of grand jury proceedings in England was to prevent suspected criminals from learning of an inquest and absconding. By the late 17th century, legal scholars had begun to recognize the need for secrecy in most matters pertaining to grand jury inquiries—including the identities of subjects and witnesses, the evidence collected, and the plans and deliberations of the jury—in order to realize the additional aims of preserving juror independence, sussing out witness bias and mendacity, and allowing evidence to be fully developed.

When the right to grand jury indictment crossed the Atlantic Ocean from England to the American colonies, the rule of grand jury secrecy came with it. Prior to the adoption of the Federal Rules of Criminal Procedure, the federal courts developed a fairly robust, though not unyielding, conception of grand jury secrecy at common law. Secrecy challenges most often arose in the context of criminal defendants' motions to dismiss their indictments on the grounds that the evidence considered by the grand jury could not justify the charges or that some type of misconduct had occurred. Recognizing that these motions called for inspecting records of the proceedings before the grand jury, courts typically acknowledged that they had the discretionary power to permit such inspection "in the furtherance of justice" but found that the power should be "sparingly exercised" in light of the traditional rule of secrecy. Thus, although a number of courts identified a theoretical imperative for "removing the veil of secrecy whenever evidence of what has transpired before [the jury] becomes necessary to protect public or private rights," courts often declined to engage in such unveiling based merely on a defendant's "general allegations" or a potential "fishing expedition."

Nevertheless, when deemed "essential" to "the purposes of justice," some courts would consider evidence of what occurred before a grand jury to determine whether an indictment against a criminal defendant should be dismissed. This unveiling apparently reflected an understanding that grand juries served not only an investigative function in furtherance of the governmental interest in law enforcement, but also as a "protector of citizens against arbitrary and oppressive governmental action." Thus, as these decisions suggested, disclosure could be appropriate when continuing secrecy would be inconsistent with the citizen-protective function.

Federal Rule of Criminal Procedure 6(e)

Background and Overview

"[T]he federal courts' modern version" of the traditional rule of grand jury secrecy is established by Federal Rule of Criminal Procedure 6(e), in effect since 1946 and amended numerous times over the following 60 years. The Supreme Court has recognized that Rule 6(e) simply "codifie[d]" the pre-existing common law requirement "that grand jury activities generally be kept secret," an "integral part of [the United States] criminal justice system." An Advisory Committee Note reflects this understanding, making clear that the Rule "continues the traditional practice of secrecy . . . except when the court permits a disclosure."

Courts have identified five principal justifications underlying Rule 6(e)'s secrecy requirement:

1. to prevent the escape of those whose indictment may be contemplated; 2. to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; 3. to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; 4. to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; 5. to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

At the time of its adoption, Rule 6(e) ensured the secrecy of grand jury proceedings by authorizing "[d]isclosure of matters occurring before the grand jury" in only limited circumstances. First, such matters "other than [the jury's] deliberations and the vote of any juror" automatically could be disclosed to "the attorneys for the government for use in the performance of their duties." Beyond this, "a juror, attorney, interpreter or stenographer" could disclose matters occurring before the grand jury only with court authorization (1) "preliminarily to or in connection with a judicial proceeding," or (2) "at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury."

Amendments to Rule 6(e) from 1966 to 2014 have sought, among other things, to align the Rule's text with court-developed exceptions and clarifications that have sometimes extended beyond the literal terms of the version of the Rule in force at a given point in time. The current iteration of Rule 6(e) establishes a general rule of secrecy by setting out a list of persons, including grand jurors and attorneys for the government, who "must not disclose a matter occurring before the grand jury" unless the Federal Rules of Criminal Procedure "provide otherwise." Rule 6(e) then "provide[s] otherwise" by listing complex exceptions to the prohibition. The exceptions generally fall into two categories: (1) disclosures permitted without judicial authorization, and (2) disclosures permitted with judicial authorization.

In the first category, persons prohibited by the Rule from disclosing matters occurring before the grand jury may nevertheless disclose such matters (other than grand jury deliberations or grand juror votes) to an attorney for the government "for use in performing that attorney's duty" and to non-attorney "government personnel" who are needed to help a government attorney enforce federal criminal law. Government attorneys may also disclose such matters (1) to another federal grand jury; (2) to federal law enforcement, intelligence, protective, immigration, national defense, or national security officials only with respect to matters involving foreign intelligence or counterintelligence; and (3) to "any appropriate . . . government official" only with respect to matters involving threats of attack or intelligence gathering by foreign powers or threats of sabotage or terrorism.

In the second category of exceptions, the court under whose auspices the grand jury was empaneled may authorize disclosure of a grand jury matter (1) preliminarily to or in connection with a judicial proceeding; (2) to a defendant who shows grounds may exist to dismiss the indictment because of something that occurred before the grand jury; or (3) at the request of the government, to a foreign court or prosecutor or to an "appropriate" state, state-subdivision, Indian tribal, military, or foreign government official for the purpose of enforcing or investigating a violation of the respective jurisdiction's criminal law.

Beyond the express terms of Rule 6(e), three circuits and a number of district courts have held that courts have inherent authority to disclose grand jury materials in situations where an enumerated Rule 6(e) exception is not otherwise applicable, though the authority may be exercised only in rare or special cases. Additional Rules and statutes also permit disclosure in particular circumstances.

When a court-authorized disclosure is at issue, the person or entity seeking grand jury information must make a "strong showing of particularized need" that "outweighs the public interest in secrecy." If that showing is made, the court may authorize disclosure "at a time, in a manner, and subject to any other conditions that it directs."

The following sections of this report provide more detail on the various provisions of Rule 6(e).

Persons Subject to Rule 6(e)

Rule 6(e)(2)(B) lists eight categories of persons who "must not disclose a matter occurring before the grand jury" unless an exception applies:

1. grand jurors; 2. interpreters; 3. court reporters; 4. operators of recording devices ; 5. persons who transcribe recorded testimony; 6. attorneys for the government; 7. government personnel needed to assist attorneys for the government; 8. persons authorized to receive grand jury materials under 18 U.S.C. § 3322.

In other words, the Rule generally imposes an obligation of secrecy on each person permitted to be present while the grand jury is in session, as well as certain persons given access to grand jury information. Yet there is a notable exception to this general imperative: though a "witness being questioned" is authorized by Rule 6(d) to be present during grand jury proceedings (for obvious reasons), grand jury witnesses are not included on the list of persons precluded from disclosing grand jury matters. Viewed in conjunction with Rule 6(e)(2)(A)'s admonition that "[n]o obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B)," the Rule by its plain terms does not obligate grand jury witnesses to maintain the secrecy of the proceedings or their testimony. An Advisory Committee note to the original adoption of Rule 6(e) supports this reading, stating that "[t]he rule does not impose any obligation of secrecy on witnesses." According to the note, such an obligation would constitute "an unnecessary hardship [that] may lead to injustice if a witness is not permitted to make a disclosure to counsel or to an associate." Court decisions generally have been in accord, although a handful of courts have taken the position that an order requiring a witness to refrain from discussing grand jury matters may be entered in rare circumstances when justified by a compelling need. Courts taking this position have relied on "inherent judicial power" to "protect the integrity of the grand jury process," which the adoption of Rule 6(e) ostensibly did not undermine.

Though a witness is ordinarily free to disclose grand jury information of which he is aware, witnesses cannot be compelled to disclose such information to investigation targets or in separate proceedings. Relatedly, courts have recognized that federal prosecutors may request (but not demand) that witnesses refrain from disclosing the existence of a subpoena or their testimony.

Because Rule 6(e)'s language suggests that the list of persons prohibited from disclosing grand jury matters is exclusive, unlisted third parties who obtain grand jury information—even from persons obligated to maintain grand jury secrecy—are also generally not required to keep the information secret. That said, a court authorizing a disclosure under a Rule 6(e) exception may impose a condition that further disclosures not be made, subject to First Amendment limitations.

At least one court has observed that courts themselves are not included on the list of those who must refrain from "disclos[ing] a matter occurring before the grand jury" under Rule 6(e)(2)(B), interpreting this omission to mean that courts have inherent authority to release grand jury materials regardless of whether a textual exception to grand jury secrecy in Rule 6(e) otherwise applies. This judicial "inherent authority" exception, which the Supreme Court has never endorsed, is discussed in more detail infra in the section addressing exceptions to grand jury secrecy.

Disclosure of Matters Occurring Before the Grand Jury

Rule 6(e) prohibits only "disclosure of matters occurring before the grand jury." Accordingly, the Rule is not contravened unless something is "disclos[ed]," meaning that a person "with information about the workings of the grand jury . . . [has] reveal[ed] such information to other persons who are not authorized to have access to it under the Rule." Thus, mere use of grand jury information by a person who has already been legitimately exposed to it does not constitute "disclosure" within the meaning of Rule 6(e).

A more difficult issue is determining what types of information or materials fall within the meaning of "matters occurring before the grand jury." Though not defined in Rule 6(e), courts have tended to view the phrase as broadly encompassing anything that might reveal what took place in the grand jury room. Clear examples include transcripts of proceedings and witness testimony, as well as written "summaries" or "discussions" of the proceedings or evidence presented. Information about the composition and focus of the grand jury—including the identities of witnesses and jurors, the targets and subjects of the investigation, and even the dates and times a grand jury is in session —are also covered by the Rule.

Particular challenges arise in the context of documents such as business records that have been subpoenaed or considered by the grand jury but do not on their face relate to the grand jury itself. In general, "[t]here is no per se rule against disclosure of any and all information which has reached the grand jury chambers," and thus "[t]he mere fact that information [or documents have] been presented to the grand jury" does not bar independent disclosure in other proceedings. For example, an agency or litigant may seek corporate records directly from a company, and the company has no basis to claim that the records are insulated from disclosure simply because a federal grand jury separately has subpoenaed them.

However, utilizing various (and sometimes conflicting) tests, courts have acknowledged that independently generated documents presented to a grand jury may sometimes constitute "matters occurring before the grand jury" in a particular case if the context of a request would make production revelatory of the substance of the grand jury's investigation. For instance, a request for "documents subpoenaed by the grand jury" might impermissibly call for disclosure of grand jury matters, as production "would reveal to the requester that [the documents] had been subpoenaed" and potentially suggest the focus of the grand jury's investigation. By contrast, a request for documents presented to a grand jury, when coupled with broader requests for "all evidence" or documents related to a factual matter, would not necessarily call for disclosure of grand jury matters if production would leave the requester unable to "determine which documents," if any, "had been submitted to the grand jury." The framing of a particular request for documents, and the context in which the request is made, will thus impact whether documents presented to or obtained by a grand jury are considered "matters occurring before" it within the meaning of Rule 6(e).

One court has addressed the difficulty inherent in parsing when and to what extent documents subpoenaed or reviewed by a grand jury constitute grand jury "matters" by applying a presumption that "confidential documentary information not otherwise public obtained by the grand jury by coercive means" is covered by the Rule. A party seeking disclosure may rebut the presumption, however, "by showing that the information is public or was not obtained through coercive means or that disclosure would be otherwise available by civil discovery and would not reveal the nature, scope, or direction of the grand jury inquiry." In practice, then, the showing required to rebut the presumption may result in an inquiry similar to that employed by other courts.

In addition to the substance of grand jury matters themselves (e.g., transcripts of testimony), Rule 6(e) protects against the indirect revelation of grand jury matters in ancillary proceedings and filings, such as hearings or orders addressing claims of privilege or efforts to quash a subpoena. The Rule provides that the court must "close any hearing" and keep "[r]ecords, orders, and subpoenas relating to grand-jury proceedings" under seal "to the extent and as long as necessary" to prevent unauthorized disclosure of a grand jury matter. Arguing that the public ordinarily has a First Amendment or common law right of access to criminal proceedings, members of the media have sometimes sought to obtain sealed records and orders notwithstanding these provisions, but multiple circuits have rejected such efforts.

The prohibition on disclosure of matters occurring before a grand jury is indefinite—in other words, the veil of secrecy is not lifted merely because a grand jury has completed its investigation and either issued an indictment or declined to do so. That said, because some of the "interests" underlying the rule of secrecy are "reduced" once a grand jury's work is completed, the passage of time may be relevant to whether a court will authorize disclosure pursuant to a Rule 6(e) exception in a particular case.

Exceptions to Grand Jury Secrecy

Federal Rule of Criminal Procedure 6(e)(3) contains a series of "[e]xceptions" to the general rule of grand jury secrecy that permit disclosure of grand jury matters to specified persons or in certain situations. The exceptions fall into two general categories: (1) disclosures that may be made without judicial authorization (though notice must in some cases be provided), and (2) disclosures that may be made only upon order of the court. Certain statutes and Federal Rules of Criminal Procedure beyond Rule 6(e) also permit disclosure of grand jury information in particular circumstances.

Disclosures Without Judicial Authorization

Disclosure to a Government Attorney

Rule 6(e)(3)(A)(i) provides that disclosure of a grand jury matter "other than the grand jury's deliberations or any grand juror's vote" may be made without court authorization to "an attorney for the government for use in performing that attorney's duty." The term "attorney for the government" is defined elsewhere in the Federal Rules of Criminal Procedure as, in relevant part, (1) the Attorney General "or an authorized assistant"; (2) a United States attorney or an authorized assistant; or (3) "any other attorney authorized by law to conduct proceedings under these rules as a prosecutor." Thus, an "attorney for the government" under Rule 6(e)(3)(A)(i) encompasses attorneys within the United States Department of Justice, as well as local or federal agency attorneys that have been appointed to act as federal prosecutors. Attorneys outside the Department of Justice who have not been so appointed, however, are excluded.

Concerning the Rule's limitation that disclosure to a government attorney be "for use in performing that attorney's duty," an Advisory Committee note states that attorneys are entitled to disclosure "inasmuch as they may be present in the grand jury room during the presentation of evidence." The Supreme Court accordingly has determined that disclosure under the Rule "is limited to use by those attorneys who conduct the criminal matters to which the materials pertain." Accordingly, "every attorney (including a supervisor) who is working on a [particular] prosecution," but not a related civil matter, "may have access to grand jury materials" underlying that prosecution. And at least one court has taken a more expansive view, reading the Rule as permitting disclosure to "government attorneys conducting other criminal matters to which the materials disclosed are relevant," even if such attorneys are located in a different jurisdiction than the empaneled grand jury.

Once an attorney for the government has access to grand jury materials, he may use the materials as needed for the continued investigation and prosecution of the violations of federal criminal law to which they pertain, including in preparation for trial or during the examination of witnesses. Disclosures not connected to such violations of federal criminal law, however, are prohibited.

Disclosure to Government Personnel

Under Rule 6(e)(3)(A)(ii), disclosure of a grand jury matter, excluding grand jury deliberations and votes, may be made to "any government personnel—including those of a state, state subdivision, Indian tribe, or foreign government—that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law." This provision was added to Rule 6(e) in 1977 to address the need of Justice Department attorneys "for active assistance from outside personnel" in the course of grand jury investigations, including "investigators from the F[ederal Bureau of Investigation], I[nternal Revenue Service], and other law enforcement agencies[,]" without the "time-consuming requirement of prior judicial interposition."

The term "government personnel" has been interpreted to extend to non-attorney government employees such as law enforcement agents and subject-matter experts, as well as agency attorneys outside the Department of Justice who, because they have not been authorized to act as federal prosecutors, would not be entitled to disclosure under Rule 6(e)(3)(A)(i). One question that has arisen is the extent to which employees of private entities that are controlled by or connected to the government may be considered "government personnel." The few cases addressing this question have tended to find that purely private entities and contractors are excluded from the Rule, though a "quasi-governmental entity" that has both public and private attributes may not be, "depending on the facts of the situation."

As the text of the Rule indicates, government personnel to whom disclosure of information is made may use that information only to assist government attorneys in enforcing federal criminal law. Resultantly, disclosure to government personnel is constrained to an equal degree as disclosure to government attorneys under Rule 6(e)(3)(A)(i), that is, for use in the investigation and prosecution of criminal law violations—but not related civil matters—to which the information pertains.

To balance the benefit of disclosure to government personnel as needed against the risk that secrecy will thereby be compromised, Rule 6(e)(3)(B) requires prosecuting attorneys to "promptly" provide the court that impaneled the grand jury with the names of all government personnel to whom a disclosure is made under Rule 6(e)(3)(A)(ii). Though the text of this provision suggests that the names need only be provided after disclosure, the legislative history and an Advisory Committee note "contemplate[] that the names of such personnel will generally be furnished to the court before disclosure is made to them."

The attorney who provides the court with the names of government personnel to whom disclosure has been made must also "certify" that he has "advised" those personnel "of their obligation of secrecy" under Rule 6(e). Added in 1985, this requirement stemmed from concern that, particularly with respect to state and local government personnel who "otherwise would likely be unaware of th[e] obligation[,]" disclosure could result in "inadvertent breach[es] of grand jury secrecy" if personnel were not expressly advised to keep the information secret.

Disclosure to Another Grand Jury

Rule 6(e)(3)(C) permits an attorney for the government to disclose "any grand jury-matter to another federal grand jury" without court authorization. The Advisory Committee note to the Rule's 1983 addition reflects practical reasons for the exception: courts already "permitted such disclosure in some circumstances" despite the absence of a specific provision to that effect, and secrecy would "be protected almost as well by the safeguards at the second grand jury proceeding . . . as by judicial supervision of the disclosure of such materials." In other words, when materials from one grand jury are disclosed to a second grand jury, "secrecy is not thereby compromised, since the second grand jury is equally under Rule 6's requirement of secrecy."

Courts have held that the exception allows grand jury materials to be transferred not only to "successor" grand juries within the same judicial district, but to grand juries in other jurisdictions pursuing separate investigations as well.

Disclosure of Intelligence and National Security Information

Two of the most recent, and unique, exceptions to grand jury secrecy in Rule 6(e) permit disclosure of certain information to specified government officials based on the subject matter of that information. First, as part of the USA PATRIOT Act of 2001, Congress amended Rule 6(e) to allow an attorney for the government to disclose any grand jury matter involving foreign intelligence , counterintelligence , or foreign intelligence information to "any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official's duties." The terms " foreign intelligence " and " counterintelligence " are respectively defined in a separate statute as

information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities," and "information gathered, and activities conducted, to protect against espionage, other intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities.

The Rule itself defines the term " foreign intelligence informati on " as

(a) information, whether or not it concerns a United States person, that relates to the ability of the United States to protect against—

• actual or potential attack or other grave hostile acts of a foreign power or its agent;

• sabotage or international terrorism by a foreign power or its agent; or

• clandestine intelligence activities by an intelligence service or network of a foreign power or by its agent; or

(b) information, whether or not it concerns a United States person, with respect to a foreign power or foreign territory that relates to—

• the national defense or the security of the United States; or

• the conduct of the foreign affairs of the United States.

The Intelligence Reform and Terrorism Prevention Act of 2004 added another exception, allowing an attorney for the government to disclose any grand jury matter "involving, within the United States or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent" to "any appropriate federal, state, state subdivision, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or activities."

As commentators have noted, these contemporary exceptions are fairly expansive in that they allow prosecutors to unilaterally disclose grand jury materials to persons not involved in the prosecution of federal crimes based on definitions that could arguably encompass a "broad range of information." In this sense, the exceptions appear to be a significant departure from the traditional practice of strictly limiting dissemination of grand jury materials. In recognition of the potentially expansive application of the new exceptions, the Rule stipulates that any official to whom a disclosure is made "may use the information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information." Additionally, with respect to state, local, Indian tribal, and foreign government officials, Rule 6(e) provides that they may "use the information only in a manner consistent with any guidelines issued by the Attorney General and the Director of National Intelligence." Finally, within a "reasonable time after" any disclosure is made under Rule 6(e)(3)(D), an attorney for the federal government must file a sealed notice with the court indicating that "such information was disclosed" and identifying "the departments, agencies, or entities to which the disclosure was made."

Despite the facial breadth of the recently added exceptions, it does not appear that they have yet been subject to substantial judicial scrutiny or interpretation. At least one commentator, however, has anticipated that a constitutional challenge is inevitable, given the degree to which the exceptions impact grand jury secrecy (and thus potentially undermine the Fifth Amendment's grand jury requirement).

Disclosures with Judicial Authorization

Disclosure Related to a Judicial Proceeding

Federal Rule of Criminal Procedure 6(e)(3)(E)(i) permits a court to authorize disclosure of a grand jury matter "preliminarily to or in connection with a judicial proceeding." This exception, which has been part of the Rule since its inception in 1946, is one of the most frequently litigated.

An oft-cited definition of the term "judicial proceeding" comes from an early U.S. Court of Appeals for the Second Circuit opinion: "[A]ny proceeding determinable by a court, having for its object the compliance of any person, subject to judicial control, with standards imposed upon his conduct in the public interest, even though such compliance is enforced without the procedure applicable to the punishment of crime." Criminal and civil litigation qualify as judicial proceedings, but so too may quasi-judicial matters such as impeachment proceedings and certain disciplinary hearings. Purely administrative or nonjudicial investigations or hearings, on the other hand, typically do not qualify.

One question that has arisen is whether the grand jury investigation itself is a "judicial proceeding" such that a court may permit materials generated by the investigation to be disclosed for use in connection with those proceedings. Answering this question in the affirmative would, for example, allow an expert witness to review grand jury material prior to testifying before the grand jury. Some courts have concluded either that a grand jury investigation is a judicial proceeding for these purposes or that it is "preliminary" to a judicial proceeding—the criminal trial that would follow indictment. Consistent with this approach, said criminal trial generally has been viewed as a judicial proceeding permitting disclosure of materials from the underlying grand jury, though there is authority to the contrary. Conversely, courts have rejected the argument that a proceeding instituted primarily or solely to obtain grand jury materials can itself be considered the "judicial proceeding" needed to justify disclosure, recognizing that such a reading of the exception would be circular and "rule-swallowing."

With respect to the "preliminarily to or in connection with" requirement, the Supreme Court has said that the relevant inquiry is the use for which the grand jury information is being requested: "the Rule contemplates only uses related fairly directly to some identifiable litigation, pending or anticipated." Thus, "it is not enough to show that some litigation may emerge from the matter in which the material is to be used, or even that litigation is . . . likely to emerge . . . . If the primary purpose of disclosure is not to assist in preparation or conduct of a judicial proceeding, disclosure . . . is not permitted." What this limitation on the exception means is that a request for grand jury materials pursuant to a preliminary inquiry or investigation does not come within the scope of the exception where the prospect of a judicial proceeding stemming from the investigation is merely speculative. That said, an administrative or other investigative inquiry may be considered "preliminar[y]" to a judicial proceeding if "a clear pathway exists" between that process "and the judicial process and the ultimate judicial role is a very substantial one."

Disclosure to Defendant on Showing of Ground to Dismiss Indictment

Rule 6(e)(3)(E)(ii) permits a court to order disclosure "at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Along with the "judicial proceeding" exception, this exception is the only other mechanism for seeking court authorization to disclose grand jury materials that has been in the Rule since its inception in 1946.

There is a strong "presumption of regularity" in grand jury proceedings, and thus a defendant requesting court authorization for disclosure under this exception carries a heavy burden in seeking to make the requisite showing. First, dismissal of an indictment itself is a remedy only for misconduct before the grand jury that "amounts to a violation of one of those 'few, clear rules which were carefully drafted and approved by [the Supreme] Court and by Congress to ensure the integrity of the grand jury's functions'"—such as violations of Rule 6 or certain statutory provisions establishing prosecutorial standards of conduct. For example, indictment dismissal may be warranted where the prosecutor secures the indictment by actively misleading the grand jury about key evidence, but mere failure to present evidence favorable to the defendant will not justify dismissal.

Second, to make the requisite showing that one of the above-mentioned grounds exists, the defendant must do more than make "conclusory or speculative allegations of misconduct." Rather, the defendant must identify a factual basis for inferring that misconduct warranting indictment dismissal has occurred. At least one court has described this as an "exceedingly high burden." For this reason, courts rarely grant requests by defendants under Rule 6(e)(3)(E)(ii), as "a defendant often can make the necessary showing only with the aid of the [very] materials he seeks to discover." Defendants have, at times, pointed out this conundrum, but courts have not been particularly sympathetic.

Disclosure to a Foreign Court or Prosecutor

Under Rule 6(e)(3)(E)(iii), a court "at the request of the government" may authorize disclosure of a grand jury matter "when sought by a foreign court or prosecutor for use in an official criminal investigation." This provision was added to the Rule as part of the Intelligence Reform and Terrorism Prevention Act of 2004, and appears to have been intended to address uncertainty as to whether a foreign criminal investigation could be considered "preliminar[y] to . . . a judicial proceeding" within the meaning of that separate exception. With the 2004 addition, the Rule now expressly recognizes that government attorneys may seek court authorization to disclose materials for use in the course of a foreign criminal investigation, rather than having to separately subpoena the same documents in order to provide them to foreign prosecuting authorities.

Disclosure for State, Foreign, or Military Law Enforcement

Closely related to the exception for court-authorized disclosures to foreign courts and prosecutors, Rule 6(e)(3)(E)(iv) permits a court, "at the request of the government" and upon a showing by the government that a grand jury matter "may disclose a violation of State, Indian tribal, or foreign criminal law," to order disclosure of a grand jury matter "to an appropriate state, state-subdivision, Indian tribal, or foreign government official for the purpose of enforcing that law." Rule 6(e)(3)(E)(v) extends the same exception to "an appropriate military official" for enforcement of "military criminal law under the Uniform Code of Military Justice."

Before these exceptions were adopted in 1985, non-federal law enforcement officials could obtain federal grand jury materials for purposes other than federal law enforcement only with court authorization pursuant to the exception permitting disclosure "preliminarily to or in connection with a judicial proceeding." The judicial proceeding exception proved to be "of limited practical value" in such circumstances, however, given the requirement that there be some "identifiable litigation" to which the disclosure related; where state or other non-federal officials were not already aware of the facts tending to show a violation of the relevant jurisdiction's criminal law, there would likely be no "pending or anticipated" judicial proceeding prior to disclosure that would justify such disclosure under the "judicial proceeding" exception.

According to an Advisory Committee note, "[t]his inability lawfully to disclose evidence of a [non-federal] criminal violation—evidence legitimately obtained by the grand jury"—was perceived as "an unreasonable barrier to the effective enforcement" of criminal law across jurisdictions. Thus, pursuant to the exceptions, courts may now permit disclosure to a non-federal official "when an attorney for the government so requests and makes the requisite showing." Department of Justice guidelines require that federal prosecutors request and receive internal authorization to apply for a court order under these exceptions before doing so.

With respect to which officials are "appropriate" within the meaning of the Rule, the Department of Justice takes the position that the term "shall be interpreted to mean any official whose official duties include enforcement of the . . . criminal law whose violation is indicated in the matters for which disclosure authorization is sought." The few court decisions construing the term appear to take a similar view.

Courts' Inherent Authority to Order Disclosure

The Supreme Court has said that where a statute "explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent." As discussed above, Rule 6(e) provides that a matter occurring before a grand jury must not be disclosed "[u]nless these rules provide otherwise." Rule 6(e) then explicitly "provide[s] otherwise" by granting authority to courts to order disclosure of grand jury matters in particular, enumerated circumstances. Thus, based solely on Rule 6(e)'s text and general principles of statutory construction, it would seem that courts can authorize disclosure of grand jury matters only if one of the express exceptions in Rule 6(e) applies. Some courts have appeared to agree with this proposition, at least in the abstract.

Nevertheless, a number of federal courts have determined that the list of court-authorized exceptions in Rule 6(e) is not exclusive, and that courts have "inherent authority" to permit disclosure of grand jury information and materials in circumstances not expressly provided for in the Rule. Courts in this camp have pointed to various justifications for recognizing such extra-textual judicial authority to breach grand jury secrecy, including that

courts have always had supervisory authority over the grand juries that they impanel, which historically included the discretion to determine when grand jury materials should be released; the advent of the Federal Rules of Criminal Procedure did not eliminate a court's supervisory authority as a general matter, meaning that courts may still take certain actions that are consistent with, though not explicitly authorized by, the Rules; Rule 6(e)(2)(B)'s list of persons who are prohibited from disclosing a matter occurring before the grand jury does not include the court itself; Rule 6(e)(3)(E)'s list of circumstances in which a court "may" authorize disclosure does not indicate that those circumstances are exclusive, and the presence of limiting language elsewhere in Rule 6 suggests its absence in (e)(3)(E) was intentional; and the history of the Rules and Advisory Committee notes indicates that Rule 6(e) was meant to be responsive to and reflective of common exceptions that courts developed of their own volition over time.

Fearing that an exception to grand jury secrecy not textually constrained could undermine secrecy writ large, courts recognizing their "inherent authority" to release grand jury materials in situations not governed by Rule 6(e) have generally cabined the exercise of such authority to "special" or "exceptional" circumstances. Though a determination that such circumstances exist is "highly discretionary and fact sensitive," factors that courts have considered include

the identity of the party seeking disclosure; whether the defendant to the grand jury proceeding or the government opposes the disclosure; why disclosure is being sought in the particular case; what specific information is being sought for disclosure; how long ago the grand jury proceedings took place; the current status of the principals of the grand jury proceedings and that of their families; the extent to which the desired material—either permissibly or impermissibly—has been previously made public; whether witnesses to the grand jury proceedings who might be affected by disclosure are still alive; and the additional need for maintaining secrecy in the particular case in question.

The circumstances in which courts have most often ordered disclosure of grand jury materials using their inherent authority have involved matters of significant public or historical interest related to grand jury proceedings that have long since concluded. For instance, one district court in the District of Columbia recently unsealed certain dockets associated with the 1998 investigation into the relationship between former President Clinton and a White House intern, citing the length of time that had elapsed and the substantial public interest in the information.

Although the trend appears to be in favor of recognizing a court's extra-textual inherent authority to release grand jury materials, at least in exceptional circumstances, there is some reason to question whether the Supreme Court would agree that this authority exists if faced squarely with the question. Setting aside the text of Rule 6(e) and the general principles discussed above, the Supreme Court in recent years has expressed "reluctan[ce] to invoke the judicial supervisory power as a basis for prescribing modes of grand jury procedure," as the grand jury's status as an independent constitutional fixture "suggest[s] that any power federal courts may have to fashion" such procedures "is a very limited one[.]" These statements have led one treatise to refer to the existence of judicial inherent authority to release grand jury materials beyond the terms of Rule 6(e) as "exceedingly doubtful."

Showings Required for Court Authorization to Disclose Grand Jury Matters

Although Rule 6(e) enumerates the contexts in which a court is authorized to order disclosure of grand jury matters, courts have had to grapple with determining what standard governs the exercise of a court's discretion to order disclosure in a particular case—that is, the showing a requester must make in order for a court to agree that releasing grand jury material is warranted under one of the exceptions for court-authorized disclosure in Rule 6(e).

The Supreme Court has said that "disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy," and "the burden of demonstrating this balance" rests on the party seeking disclosure. Put differently, the secrecy of grand jury proceedings "must not be broken except where there is a compelling necessity," and the "instances when that need will outweigh the countervailing policy" of secrecy "must be shown with particularity" by the requester.

From these general principles has emerged the standard that Rule 6(e) "require[s] a strong showing of particularized need for grand jury materials before any disclosure will be permitted." The Supreme Court announced the contours of this so-called "particularized need" standard in the context of the "judicial proceeding" exception to Rule 6(e), explaining that "[p]arties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed."

When the cases describing the "particularized need" standard were decided, the only Rule 6(e) exceptions permitting a court to authorize disclosure of grand jury matters were (1) the "judicial proceeding" exception, and (2) the exception for a defendant upon showing grounds to dismiss the indictment. As the number of Rule 6(e) exceptions permitting court-authorized disclosure has grown over time, however, one question that has arisen is whether and how the Supreme Court's "particularized need" standard applies outside of the "judicial proceeding" context in which it was announced. Courts have typically recognized that the general requirement imposed on a requester to show a need for the grand jury materials at issue extends to any exception authorizing court-ordered disclosure. This requirement, whether given the appellation "particularized need" or not, will obligate a person seeking court authorization for disclosure to show some factual exigency outweighing the interest in secrecy, which will vary depending on the precise exception being invoked. Thus, for example and as discussed above, a defendant seeking an order authorizing disclosure under Rule 6(e)(3)(E)(ii) must be able to present a factual basis for inferring that misconduct that would warrant dismissal of the indictment has occurred, and a government attorney seeking authorization under Rule 6(e)(3)(E)(iv) must show that the grand jury matter for which disclosure is sought may disclose a violation of State, Indian tribal, or foreign criminal law. Likewise, courts addressing whether to authorize release of grand jury materials pursuant to their inherent authority engage in "a nuanced and fact-intensive assessment" of whether the need for the materials is greater than the need to maintain secrecy.

Courts considering whether a "particularized need" exists in a given case have emphasized that although the standard is "highly flexible," a showing of "mere relevance, economy, and efficiency will not suffice" to meet it. Thus, the inquiry often focuses on the contemplated use of the materials at issue and whether alternative channels exist to obtain them. In the context of judicial proceedings, the need to impeach or refresh the recollection of a witness is a well-recognized and valid need, so long as the need is "real" and not merely a "bald assertion[.]" Other needs that courts have found valid include (1) to substantiate malicious prosecution allegations based on prosecutorial and witness misconduct; (2) to rehabilitate a witness at trial after he has been impeached on cross-examination; and (3) to avoid stymieing an investigation of official improprieties. On the other hand, the mere desire to discover what evidence the grand jury considered has been held to be insufficient.

Consistent with the flexible and fact-dependent nature of the "particularized need" inquiry, the Supreme Court has said that "as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification." Thus, factors courts consider in weighing need against the interest in secrecy may include (1) the nature of the materials sought; (2) whether the requester is a government official or a private party; (3) the time that has elapsed between the grand jury proceedings and the request for disclosure; and (4) whether, in the case of witness testimony or documents, the witness objects to disclosure.

Disclosures Authorized by Another Statute or Rule

Despite the general presumption of grand jury secrecy established by Federal Rule of Criminal Procedure 6(e), other federal statutes and procedural rules sometimes permit (or even mandate) disclosure of grand jury information in particular circumstances. These statutes and rules are explicit in their limited retraction of grand jury secrecy, as they must be, for the Supreme Court has made clear that it "will not infer" that Congress has exercised its power to modify the secrecy requirement unless Congress has "affirmatively express[ed] its intent to do so."

First, Rule 6(e) itself explicitly cross-references 18 U.S.C. § 3322, part of the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA), which authorizes government attorneys and personnel who are privy to grand jury information to disclose that information, without a court order, to any other government attorney for use in enforcing the civil penalty provisions of FIRREA or "in connection with any civil forfeiture provision of Federal law." In other words, in the specified circumstances, Section 3322 acts as a statutory exception to the rule that government attorneys and personnel may not disclose grand jury matters for use in separate civil proceedings without a court order. The statute also establishes other specific circumstances in which a court may order disclosure of grand jury matters: during an investigation of a "banking law violation," a court may direct disclosure "to identified personnel of a Federal or State financial institution regulatory agency" for use "in relation to any matter within the jurisdiction of such regulatory agency" or "to assist an attorney for the government to whom matters have been disclosed" under the statute.

In addition, Federal Rule of Criminal Procedure 16 requires that a criminal defendant be given access to any grand jury testimony he has given relating to the charged offense. With respect to the grand jury testimony of other witnesses, Federal Rule of Criminal Procedure 26.2 and the Jencks Act require that such testimony be provided to the defendant only after the witness in question has testified on direct examination at trial. Disclosure is limited to grand jury testimony that "relate[s] to the subject matter of the [trial] testimony of the witness." The purpose of these limitations is to balance a defendant's right to confront his accusers using information that may impeach their testimony with the need to protect government files "from unnecessary and vexatious fishing expeditions by defendants."

Disclosure Mechanics and Review

Federal Rules of Criminal Procedure 6(e)(3)(F) and (G) address the procedures for seeking court-authorized disclosure of grand jury materials for use in connection with another judicial proceeding. A party seeking disclosure must file a petition in the district "where the grand jury convened." If the petition is filed by "the government," the court may—but is not required to—hear the matter ex parte . Otherwise, the petitioner must provide notice of the petition to (1) an attorney for the government, (2) the parties to the judicial proceeding for which disclosure of the grand jury materials is sought, and (3) "any other person whom the court may designate." The court must "afford a reasonable opportunity" to these persons "to appear and be heard."

Challenges arise when the judicial proceeding for which grand jury materials are sought is pending in a different judicial district than the district where the grand jury convened, as the latter court may be ill-suited to decide the disclosure question. The Supreme Court addressed this situation in Douglas Oil Co. v. Petrol Stops Northwest , and the Court's conclusions have essentially been adopted in Rule 6(e)(3)(G). The Rule provides that unless the court in which the petition is filed—that is, the court in the district where the grand jury convened—"can reasonably determine whether disclosure is proper," it must transfer the matter to the district where the separate judicial proceeding is pending for determination. This provision reflects "a preference for having the disclosure issue decided by the grand jury court," while recognizing that that court may be unable to reach a decision because it "will have no first-hand knowledge of the litigation in which the transcripts allegedly are needed, and no practical means by which such knowledge can be obtained."

To facilitate resolution by the transferee court, the grand jury court must transmit to the transferee court "the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand jury secrecy." The first requirement "facilitate[s] timely disclosure if it is thereafter ordered" and assists the transferee court "in deciding how great the need for disclosure actually is." The Rule does not require transmittal of the grand jury material if it is impracticable to do so, as, for example if the material is "exceedingly voluminous." The requirement of a written evaluation of the need for continuing secrecy recognizes that the grand jury court "is in the best position to assess the interest in continued grand jury secrecy in the particular instance," and it is thus "important that the court which will now have to balance that interest against the need for disclosure receive the benefit of the [grand jury] court's assessment."

Upon transfer, the same persons specified in Rule 6(e)(3)(F) must be given a reasonable opportunity to appear and be heard. The transferee court then makes the ultimate decision whether to disclose "based on its own determination of the need for disclosure and the transferring court's evaluation of the competing need for continued secrecy."

Generally, a court's order regarding disclosure under Rule 6(e) is immediately appealable. Because the determination of whether "particularized need" exists to justify disclosure in a given case is highly fact-specific and discretionary, an appellate court's review will be under the deferential "abuse of discretion" standard.

Establishing and Remedying Violations of Grand Jury Secrecy

A knowing violation of Rule 6, including the obligation of secrecy, "may be punished as a contempt of court." Though not explicit in the Rule, courts have held that both criminal and civil contempt may be imposed, meaning that the remedy may include imprisonment, monetary sanctions, or equitable relief. In limited circumstances, an indictment may also be dismissed or evidence suppressed. For example, where the government unilaterally disclosed a defendant's grand jury testimony in a separate civil forfeiture proceeding to establish probable cause for seizure of the defendant's car, one court suggested that suppression of the testimony could be necessary to "protect the integrity of the grand jury system."

Courts disagree on whether the contempt provision of Rule 6 establishes a private right of action based on an alleged violation of grand jury secrecy.

A party seeking one of the remedies noted above will be required to establish a prima facie case that a violation of grand jury secrecy has occurred. This showing will ordinarily require some basis to infer that the source of any leaked grand jury information was one prohibited under Rule 6(e), and the court may consider evidence submitted to rebut the allegation of wrongdoing. If a prima facie case is established, the court will hold an evidentiary hearing in which the alleged source of the unauthorized disclosure (typically the government) will bear the burden of "attempt[ing] to explain its actions." For instance, the movants in one case made a prima facie showing that an independent counsel breached grand jury secrecy by submitting to the court "various news articles indicating that information relating to grand jury proceedings or witnesses was obtained from sources associated with the" independent counsel's office. The court thus recognized that the independent counsel would be called upon to attempt to rebut the inferences drawn from the news articles by submitting evidence (potentially including affidavits, documents, or live testimony) to show either that the information disclosed to the media did not constitute "matters occurring before the grand jury" or that the source of the information was not the government.

An order denying a defendant's motion to dismiss the indictment based on a violation of Rule 6(e) is not immediately appealable, and any error may be considered harmless if the defendant is subsequently convicted.

Grand Jury Secrecy and Congressional Oversight

As the discussion of grand jury secrecy and Federal Rule of Criminal Procedure 6(e) above reflects, no exception to the general rule of secrecy explicitly authorizes disclosure of grand jury matters to Congress, either by agreement or pursuant to a congressional subpoena. Nevertheless, a few courts have addressed the applicability of Rule 6(e) and its exceptions to congressional requests for information, including in the course of committee investigations and preliminary to impeachment proceedings. At a minimum, these decisions indicate that Congress may be able to obtain grand jury materials by invoking a Rule 6(e) exception before a court under certain circumstances. Congress has also previously considered legislation that would have expressly permitted a court to authorize disclosure of grand jury matters to congressional committees, though the congressional-access provision ultimately did not become law.

This section of the report addresses the circumstances in which Congress may obtain and disseminate grand jury materials under Rule 6(e) as it is presently construed; it then addresses legal issues to consider if Congress seeks to create a new Rule 6(e) exception for congressional committees.

Congressional Investigative Authority

Congress generally has broad authority to obtain information for oversight and investigative purposes. The power of Congress to conduct investigations is "inherent in the legislative process," and such power is "as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution." As a corollary, the "[i]ssuance of subpoenas . . . has long been held to be a legitimate use by Congress of its power to investigate." Beyond subpoenas, Congress has exercised its power of inquiry through less formal means, such as by submitting letter requests for information.

Congressional inquiries are broadly protected from judicial scrutiny. Provided that a committee's investigation is authorized and conducted pursuant to a valid legislative purpose, the Speech or Debate Clause of Article I of the Constitution creates "an absolute bar to [judicial] interference."

Application of Grand Jury Secrecy to Congressional Disclosures

Pursuant to its broad authority to investigate, Congress has on several occasions sought grand jury information based on legislative interest in particular executive branch activities, either through letters or subpoenas to executive branch officials or through petitions filed with the court. Faced with these legislative efforts to obtain otherwise-secret grand jury materials, courts have reached conflicting conclusions as to whether the rule of grand jury secrecy enshrined in Rule 6(e) applies to disclosures to Congress at all.

Relying on an apparently novel conception of the "authority of Congress under the Speech or Debate Clause," two courts have held that Congress has a "constitutionally independent legal right" to obtain documents in furtherance of "legitimate legislative activity" regardless of whether the documents disclose matters occurring before a grand jury. First, in In re Grand Jury Investigation of Ven-Fuel , the chairman of the Subcommittee on Oversight and Investigations of the House of Representatives' Committee on Interstate and Foreign Commerce petitioned a district court for an order authorizing disclosure of documents presented to a federal grand jury in Florida in the course of its investigation of possible criminal conduct by a company called Ven-Fuel, Inc. The court recognized that the subcommittee's request implicated "the powers and operations of the coequal, but interdependent, branches of the federal government . . . over theoretical fault lines," but concluded there was no "direct conflict" because the subcommittee's legitimate legislative purpose in seeking the documents meant that it was "entitled to disclosure" regardless of grand jury secrecy rules.

Ten years after the decision in Ven-Fuel , the issue of congressional access to grand jury materials came before a different court in connection with the potential impeachment of a federal judge. The judge had been indicted for conspiring to solicit a bribe to influence a judicial decision, causing the House of Representatives to introduce a resolution calling for his impeachment. The resolution was referred to the House Committee on the Judiciary, which subsequently requested that the district court deliver all records of the grand jury that had indicted the judge. The judge objected, but the district court concluded that the committee was entitled to the records for several reasons, one of which was that, in accordance with Ven-Fuel , a "congressional investigation relating to the impeachment of a federal judge" falls within the authorized legislative activities "embraced" by the Speech or Debate Clause.

Criticizing the decision in Ven-Fuel , other courts have sharply disagreed with the conclusion that the Speech or Debate Clause provides a basis to ignore grand jury secrecy when Congress is the requester. In In re Grand Jury Investigation of Uranium Industry , for instance, the Senate Judiciary Committee petitioned a court for an order authorizing disclosure of documents in the possession of the Department of Justice related to its investigation of the uranium industry. The committee's interest in the documents apparently stemmed from the fact that an expansive grand jury investigation conducted by the department's Antitrust Division had yielded no indictments. In seeking court-ordered disclosure of the grand jury materials, the committee asserted, among other things, that it was not required to establish the applicability of a Rule 6(e) exception or make a showing of particularized need because the Speech or Debate Clause entitled it to the materials. The court, however, considered "the suggestion that Rule 6(e) does not apply to disclosures to Congress" to be "[un]acceptable." The court noted that Rule 6(e) "contains no reservations in favor of Congress" and rejected the Ven-Fuel court's suggestion that the Speech or Debate Clause may be "used as a sword to enable Congress to penetrate an otherwise secret function of one of the other branches." While, in the court's view, the Clause would protect Congress from collateral interference if it were attempting to "acquire materials which it has a legal right to obtain," the Clause would not sanction expansion of Congress's legal rights "to manufacture a new right to obtain grand jury materials" that could be affirmatively employed.

As the court in Uranium Industry recognized, the Ven-Fuel decision's reliance on the Speech or Debate Clause as a font of constitutional authority permitting congressional access to grand jury materials finds little support in the broader case law on the Clause. Though the Clause functions to protect congressional activity, including lawful use of the subpoena power, from judicial interference when such activity is challenged by a third party, courts have not viewed the Clause to constitute a sword that Congress may use to affirmatively seek judicial authorization for disclosure of information in the possession of a coordinate branch. That said, the extent to which the rule of grand jury secrecy applies more generally along the "theoretical fault line[]" that exists between executive branch activity and Congress's Article I investigative authority remains unsettled. It is worth noting in this regard that although Congress's power to obtain information for legitimate legislative purposes is broad, it is not limitless.

Though no federal appellate courts have spoken directly to the issue, decisions addressing the now-lapsed independent counsel statute appear to lend some support to the position that Congress enjoys no special constitutional solicitude in obtaining otherwise-secret grand jury materials. That statute required a duly appointed independent counsel to file a pre-termination "final report" with the court "setting forth fully and completely a description of the work of the independent counsel," and the statute permitted the court to release "to the Congress, the public, or any appropriate person, such portions of [the] report . . . as the division of the court considers appropriate." In several decisions considering whether to authorize such release of independent counsel reports to Congress and the public, the D.C. Circuit has recognized that Rule 6(e) applies to an independent counsel, meaning that "any release of grand jury material" in the final report authorized by statute "falls within the protective provisions" of the Rule unless an exception applies. Nevertheless, the court has read a provision of the independent counsel statute permitting a court to authorize disclosure of the report as establishing a "judicial proceeding" such that release of the report may fall within that exception to Rule 6(e). Pursuant to the exception, the court has proceeded to consider multiple factors in deciding whether to authorize the report's release. In other words, rather than finding an independent constitutional entitlement to grand jury material when faced with the question of whether to authorize the release to Congress of a report containing such material, the D.C. Circuit has simply applied Rule 6(e). It could be argued, however, that because these cases did not involve a congressional subpoena, the court was not faced with a direct exercise of Congress's constitutional power of inquiry.

The Department of Justice, for its part, agrees that it may release grand jury material to Congress in response to a subpoena only to the extent that disclosure is permitted under Rule 6(e). It takes the opposite position from the Ven-Fuel court with respect to separation-of-powers implications when Congress requests grand jury material: in the department's view, recognizing a congressional "independent right of access" to grand jury material would amount to "legislative encroachment into the Executive's exclusive authority to enforce the law."

Requests for Materials Not Constituting Grand Jury Matters

Assuming that Rule 6(e) does apply to congressional requests, it is clear that Congress may nevertheless obtain materials that do not constitute "matters occurring before the grand jury" within the meaning of the Rule.

Rule 6(e) protects from disclosure only those materials that "tend to reveal some secret aspect of the grand jury's investigation." Thus, where a congressional committee has an interest in the subject matter of an ongoing grand jury investigation, the committee may be able to obtain most, if not all, of the same evidence the grand jury is considering from other sources.

For instance, although the court in Ven-Fuel viewed Congress as constitutionally entitled to disclosure of documents that had been presented to a grand jury, the court also determined that the documents were not necessarily cloaked in secrecy under Rule 6(e) in the first instance. And while not all courts may take such a narrow view of grand jury "matters," the principle that "[t]here is no per se rule against disclosure of any and all information which has reached the grand jury chambers" is a well-recognized one.

Applicability of Rule 6(e) Exceptions to Congress

Although no exception to grand jury secrecy explicitly encompasses disclosures to Congress, a few of the exceptions could apply to Congress in particular situations, which are discussed below in turn.

Disclosures to Congress Without Judicial Authorization

Members of Congress as Government Personnel

As discussed, Rule 6(e) permits disclosure of grand jury matters, excluding grand jury deliberations and votes, to "any government personnel—including those of a state, state subdivision, Indian tribe, or foreign government—that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law."

The term "government personnel" is not defined in the Rule, and the provision's legislative history reflects a concern with information-sharing between federal prosecutors and federal law enforcement officers or agency subject-matter experts who were needed to understand certain issues in complex cases. That said, during the hearings on the proposed amendments that added the exception, there was some testimony indicating that the breadth of the term "government personnel" could mean that "even Members of Congress or the military" would be included.

It is thus possible that a Member of Congress, or congressional staff, could be considered "government personnel" to whom disclosure could be made without a court order under this exception.

Any such disclosure, however, would be exceedingly circumscribed in light of the exception's other requirements. First, disclosure would be at the discretion of the attorney for the government, and would be limited to a situation in which the attorney believed that the Member or staff was needed to assist the attorney in enforcing federal criminal law. Second, the Member or staff to whom disclosure was made could use the grand jury information only for the same purpose, that is, to assist the attorney in prosecuting the federal crimes to which the information related. Third, the Member or staff would be obligated to maintain the secrecy of the information and could further disclose it only in accordance with Rule 6(e).

As such, even assuming Members of Congress or congressional staff fall within the meaning of "government personnel," the exception would not permit Congress to seek grand jury materials for broader independent investigative or legislative purposes.

Congressional Access to Intelligence and National Security Information

Rule 6(e)(3)(D) permits an attorney for the government to disclose, among other things, any grand jury matter involving threats of attack or intelligence gathering by foreign powers or threats of sabotage or terrorism to "any appropriate federal . . . government official" (among others). Similar to the exception for "government personnel," the Rule does not define the term "appropriate . . . government official." Nonetheless, other statutory provisions suggest that the term "government official" could be construed to include a Member of Congress. As with the "government personnel" exception, however, disclosure under this exception would be limited: only grand jury information pertaining to the specified subject matter would be available, at the discretion of the attorney for the government, and the Member receiving the information could use it "only as necessary in the conduct of [her] official duties subject to any limitations on the unauthorized disclosure of such information."

Disclosures to Congress with Judicial Authorization

Congressional Activities as "Judicial Proceedings"

Rule 6(e)'s "judicial proceeding" exception may also be relevant to Congress. As previously described, the Rule provides that a court may authorize disclosure of a grand jury matter "preliminarily to or in connection with a judicial proceeding," with the term "judicial proceeding" generally contemplating some necessary resort to the judicial system. Two courts have determined that a congressional committee's request for grand jury materials pursuant to its ordinary investigative and oversight functions does not qualify under this exception, as the possibility that "the actions it is investigating may wind up in the courts if wrongdoing is uncovered" is "too remote to trigger the Rule 6(e) exception." By contrast, where a congressional committee has sought grand jury materials in connection with the contemplated impeachment of a specific public official, several courts have recognized that court-ordered disclosure may be available pursuant to the "judicial proceeding" exception. Under this view, though "impeachment proceedings before Congress . . . are not by a 'court,'" a "contemplated trial" in the Senate is still "very much a judicial proceeding."

A committee seeking court-authorized disclosure on the basis of this exception must establish a "particularized need" for the materials at issue, which requires a showing that the need outweighs the public interest in secrecy. In the context of impeachment, courts have concluded that a congressional committee's need is sufficient to warrant disclosure, at least where the grand jury's work has concluded. Nevertheless, given that mere "relevance" or "efficiency" is generally insufficient to establish a particularized need for grand jury materials, the context of the request and the materials at issue could influence whether a committee can show such a need.

"Inherent Authority" to Release Grand Jury Materials to Congress

As discussed, some federal courts have recognized that courts have "inherent authority" to order the release of grand jury information in "special" or "exceptional" circumstances, regardless of whether an explicit Rule 6(e) exception would otherwise apply.

One lower court has relied on this inherent authority over grand jury matters, among other things, to authorize the release to the House Judiciary Committee of a report prepared by the grand jury investigating the alleged—and potentially impeachable—improprieties of President Nixon. The D.C. Circuit essentially affirmed that decision, expressing "general agreement" with the lower court decision.

Another court has also relied on its inherent authority to order the release of the records of a grand jury that had indicted a federal judge to an investigating committee of the judiciary, relying on the "exceptional circumstance[]" that the "question under investigation"—whether a federal judge should be recommended for impeachment or otherwise disciplined—was "of great societal importance." Recognizing that the investigating committee still was required to show a sufficient need for the grand jury materials, the court concluded such a showing had been made (and was not outweighed by the interest in secrecy) because (1) the investigating committee was composed of federal judges who were acting pursuant to express statutory authority; (2) the grand jury investigation and trial of the judge had already concluded; and (3) only by "examining all of the record" could the committee "determine the true state of the evidence for or against the charge."

Assuming a court adopts the inherent authority view of Rule 6(e) based on the above decisions, it is possible that a court would be willing to authorize the disclosure of grand jury materials to a congressional committee pursuant to the court's inherent authority. Precedential support for disclosure is strongest in the context of an impeachment inquiry (assuming the court did not view such an inquiry as being "preliminar[y] to . . . a judicial proceeding"). It is less certain that an "inherent authority" disclosure order would be available to a congressional petitioner when not tied to a contemplated impeachment proceeding. In an appropriately "exceptional" situation, a court could be amenable to exercising its inherent authority to order the release of grand jury information in the face of a pressing congressional request. The outcome would depend in large part on whether Congress could establish a sufficiently weighty need for the materials, which would implicate a variety of circumstantial factors.

Limitations on Further Disclosure by Congress

Once grand jury materials find their way into the possession of a Member or committee of Congress, the question arises as to what limits exist on further dissemination of those materials. As previously discussed, Federal Rule of Criminal Procedure 6(e) imposes an obligation of secrecy only on specified persons, of which Congress (or, more generally, a recipient of grand jury information pursuant to the "judicial proceeding" or "inherent authority" exceptions) is not one.

That said, Rule 6(e) does explicitly make court-authorized disclosures "subject to any . . . conditions that [the court] directs." It is thus conceivable that in ordering the release of grand jury information, a court could impose a requirement that the information not be further distributed. However, such a requirement would be in tension with the Constitution's Speech or Debate Clause in the case of Congress, at least where further dissemination occurs in the course of legitimate legislative activity, as the Clause prevents a court from blocking disclosure of information in Congress's possession in such a circumstance. In any event, courts will "presume that the committees of Congress will exercise their powers responsibly and with due regard for the rights of affected parties," though a court may consider the extent to which Congress has taken specific precautions to protect against further dissemination of grand jury materials in deciding whether disclosure is appropriate.

Legal Considerations for Congress

Past Congresses, faced with potential limitations on the ability to obtain grand jury materials, have considered legislation that would amend Federal Rule of Criminal Procedure 6(e) to, among other things, permit a court to authorize disclosure of grand jury matters "upon a showing of substantial need" to "any committee of Congress . . . for use in relation to any matter within the jurisdiction of such . . . congressional committee."

A bill to this effect was introduced during the 99th Congress, prompting the Department of Justice's Office of Legal Counsel to issue a memorandum opinion "strongly oppos[ing] any provision that would permit Congress independently to petition the courts for Rule 6(e) material." In the Office's view, such a provision would "codify legislative encroachment into the Executive's exclusive authority to enforce the law." In other words, the Office took the position that creating a mechanism for Congress to obtain grand jury materials from the court, without any opportunity for interposition by the executive branch, would be inconsistent with the Constitution's separation of powers and would invite "legislative pressures" that would interfere with prosecutorial discretion and due process of law.

The Senate Judiciary Committee held a hearing on the legislation and a similar bill as to their impacts on Rule 6(e) and grand jury disclosure practices, during which the bill's sponsor, Senator Charles Grassley, expressed concern that Rule 6(e) had been "utilized by the Justice Department as a shield against legitimate congressional inquiry." The Senator pointed out that the bill did not provide "automatic congressional access to grand jury information," but rather allowed "congressional committees[,] in performance of their constitutional duty to oversee the executive agencies, an opportunity to demonstrate to the court a 'substantial need' for access[.]"

An Associate Deputy Attorney General reiterated in testimony the Department of Justice's position that the provision for congressional access "would raise substantial constitutional concerns in terms of separation of powers as to where the enforcement authority lies; due process issues in terms of fairness and the application of decisionmaking with respect to criminal prosecutions; as well as the issue of opening the door for raising concerns about potential political influence or persuasion upon criminal prosecutions." He did point out, however, that the department had "accommodate[d] requests from particular congressional committees for investigative materials on an ad hoc basis by appropriate application to the courts, and subject to necessary protective conditions," which it would continue to do.

In separate testimony, representatives of the American Bar Association and the National Association of Criminal Defense Lawyers argued that the provision under consideration could violate the separation-of-powers doctrine and undermine the "fundamental tradition of grand jury secrecy" by "subvert[ing] the purpose of the grand jury" to legislative ends.

An attorney with expertise on the subject of congressional access to information also testified at the hearing and expressed the view that a bill permitting a court to provide grand jury materials to a congressional committee "with legitimate oversight functions would not violate separation-of-powers principles." However, he believed that Congress should have access to grand jury materials only "in very limited circumstances" and suggested that an amendment to Rule 6(e) "should instruct a Federal court to weigh congressional needs against grand jury secrecy requirements in determining whether to grant access." In the attorney's view, this weighing would include consideration of whether the committee could acquire sufficient information from non-grand-jury sources, whether the grand jury proceedings for which information was sought had terminated or were ongoing, and whether the committee had "in place special provisions to protect the confidentiality of grand jury material." The attorney did not view the provision under consideration, as written, to be adequate in light of the considerations he identified.

Ultimately, the bill was reported out of committee with the changes to Rule 6(e), including the congressional-access provision, excised, and it does not appear that the legislation was further pursued. Consequently, ambiguity remains regarding the relationship between grand jury secrecy and congressional access to grand jury materials. As the debate in the 99th Congress reflects, any change to the Rule could raise potentially difficult constitutional, interpretive, and policy questions. In any event, should Congress desire to create further exceptions to the secrecy framework beyond Rule 6(e), the Supreme Court has instructed that it must "affirmatively express its intent to do so."