b'Disclosure of Grand Jury Material to the Intelligence\nCommunity\nG rand Jury m aterial subject to the requirem ents o f Rule 6(e) o f the Federal Rules o f C rim inal Proce\xc2\xad\ndure may be disclosed to agencies in the Intelligence Com m unity pursuant to Rule 6(e) insofar\nas necessary to assist governm ent attorneys in perform ing their duties to enforce federal crim inal\nlaw, but m ay not, under Rule 6(e), be used by the recipient agencies for other purposes, including\nintelligence purposes.\nIn circum stances w here there is a com pelling necessity for grand ju ry m aterial to be m ade available\nto the President in furtherance o f his constitutional responsibilities over foreign affairs and national\ndefense, and w here the President has authorized the provision o f such m aterial to the Intelligence\nCom m unity, we believe that a court should and would authorize such disclosure outside the provi\xc2\xad\nsions of Rule 6(e), on the basis o f A rticle II o f the Constitution and separation o f pow ers principles.\nIndeed, in such com pelling circum stances, a constitutionally necessitated disclosure could properly\nbe m ade by attorneys for the G overnm ent even w ithout prior court approval.\n\nAugust 14, 1997\nM e m o r a n d u m O p in io n f o r t h e A c t in g C o u n s e l\nO f f ic e o f I n t e l l ig e n c e P o l ic y a n d R e v ie w\n\nThis responds to your request for our opinion concerning the permissibility of\nprosecutors in the Department of Justice disclosing grand jury information to agen\xc2\xad\ncies in the Intelligence Community ( \xe2\x80\x9c IC\xe2\x80\x9d ) for certain official purposes.1 In subse\xc2\xad\nquent communications with your office, we have identified a number of more\nspecific questions raised by your inquiry.\nThe permissibility of such disclosures will generally depend upon a number\nof factual considerations, particularly the specific nature of the information in\nquestion and the specific purposes for which Department attorneys would disclose\nit to IC officials. In addition, some materials considered by a grand jury (e.g.,\nsubpoenaed bank records) may not be subject to secrecy restrictions at ail because\nthey do not constitute \xe2\x80\x9c matters occurring before the grand jury\xe2\x80\x9d within the\nmeaning of Rule 6(e) of the Federal Rules of Criminal Procedure. See Fed. R.\nCrim. P. 6(e)(2). With respect to material that is subject to Rule 6(e), we conclude\nthat the Rule clearly does not authorize disclosure for intelligence purposes and\nthat material that is disclosed to the IC for purposes of assisting the enforcement\nof federal criminal law may not, under the express terms of the Rule, be used\nfor any other purpose.2\nIn response to a specific question, we nevertheless conclude that in a situation\ncontemplated by neither Rule 6(e) nor the prevailing case law \xe2\x80\x94 i.e., where there\nl The lerm \xe2\x80\x9c intelligence community\xe2\x80\x9d includes, inter alia, the Central Intelligence Agency ( \xe2\x80\x9c C IA \xe2\x80\x9d ), the National\nSecunty Agency, ihe Defense Intelligence Agency ( \xe2\x80\x9c D1A\xe2\x80\x9d ), and the intelligence elements of the Armed Services,\nthe Federal Bureau of Investigation (\xe2\x80\x9c FBI\xe2\x80\x9d ), and the Department of the Treasury See 50 U S C \xc2\xa7401a(4) (1994)\n2 For reasons o f brevity, matters occurring before a grand jury are sometimes referred to herein as \xe2\x80\x9c 6(e) material\xe2\x80\x9d\nor \xe2\x80\x9c grand jury information \xe2\x80\x9d\n\n159\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nis a compelling necessity for 6(e) material to be made available to the President\nin furtherance of his constitutional responsibilities over foreign affairs and national\ndefense and where the President has authorized the provision of such material\nto the IC \xe2\x80\x94 we believe a court should and would authorize such disclosure outside\nthe provisions of Rule 6(e), on the basis of Article II of the Constitution and\nseparation of powers principles. Cf. Disclosure o f Grand Jury M atters to the Presi\xc2\xad\ndent and Other Officials, 17 Op. O.L.C. 59, 65-69 (1993) (\xe2\x80\x9c 1993 Opinion\xe2\x80\x9d ).\nIndeed, in such compelling circumstances, a constitutionally necessitated disclo\xc2\xad\nsure could properly be made by attorneys for the Government even without prior\ncourt approval.\nIn any event, this constitutional authority should not be exercised as a matter\nof course, but rather only in extraordinary circumstances and with great care. For\nthis reason, we recommend the adoption of procedures to ensure that the proper\nofficials (e.g., the Attorney General or the Deputy Attorney General) are consulted\nbefore any constitutionally based disclosure is made.\nBefore turning to the specific questions presented, we address a number of\npreliminary matters that are important to the practical resolution of these questions.\nI. GENERAL CONSIDERATIONS\nA. Rule 6(e) Restrictions and Exceptions\nRule 6(e) of the Federal Rules o f Criminal Procedure establishes a \xe2\x80\x9c General\nRule of Secrecy\xe2\x80\x9d providing that certain persons, including attorneys for the\nGovernment, \xe2\x80\x9c shall not disclose matters occurring before the grand jury, except\nas otherwise provided for in these rules.\xe2\x80\x9d Fed. R. Crim. P. 6(e)(2); see United\nStates v. John Doe, Inc. I, 481 U.S. 102, 107 (1987). Under this rule, no attorney\nfor the Department of Justice may disclose \xe2\x80\x9c matters occurring before the grand\njury\xe2\x80\x9d to any other person unless one of the rule\xe2\x80\x99s enumerated exceptions applies.\nThe exceptions to the general rule of secrecy are set forth under subparagraph\n(3) of Rule 6(e). Two of those exceptions are relevant here and may be summa\xc2\xad\nrized as follows:\n(1) Disclosure to such government personnel as are deemed necessary to assist\nan attorney for the government in the performance of his duty to enforce federal\ncriminal law, see Fed. R. Crim. P. 6(e)(3)(A)(ii); and\n(2) Disclosure directed by a court preliminarily to or in connection with a\njudicial proceeding, see Fed. R. Crim. P. 6(e)(3)(C)(i).\nUnless a disclosure of 6(e) material to IC personnel can be authorized under\none of those two provisions, it cannot be authorized within the framework of\nRule 6(e).3\n3This opinion assumes that the information that is the subject o f your inquiry would actually constitute \xe2\x80\x9c matters\noccurring before a grand ju ry \xe2\x80\x9d and is therefore subject to the restrictions of Rule 6(e) We note, however, that\na num ber o f significant opinions have interpreted that term somewhat restnctively, particularly with respect to docu\xc2\xad\n\n160\n\n\x0cDisclosure o f Grand Jury Material to the Intelligence Community\n\nB. Restrictions on Intelligence Community Law Enforcement Activities\nThe most likely basis for authorized disclosure of grand jury information to\nIC officials would be to provide assistance to prosecutors in their enforcement\nof federal criminal law pursuant to Rule 6(e)(3)(A)(ii). In such circumstances,\nthe IC would be receiving the information on the basis of some connection to\nfederal law enforcement activity. Although a survey of all IC agencies in this\nregard is not within the scope of this assessment, we note that the CIA, for\nexample, is subject to specific statutory restrictions against law enforcement\nactivity. That raises the preliminary question whether the CIA or its agents would\nbe eligible to receive grand jury material under any construction o f Rule\n6(e)(3)(A)(ii).\nIn establishing the scope of the CIA\xe2\x80\x99s authority, the National Security Act\n( \xe2\x80\x9c NSA\xe2\x80\x9d ) specifies that \xe2\x80\x9c the Agency shall have no police, subpoena, or law\nenforcement powers or internal security functions.\xe2\x80\x9d 50 U.S.C. \xc2\xa7403-3(d)(l)\n(1994). The same law provides, on the other hand, that the Director of Central\nIntelligence (\xe2\x80\x9c DCI\xe2\x80\x9d ) \xe2\x80\x9c shall be responsible for providing national intelligence\xe2\x80\x9d\nfor the President and other executive branch department and agency heads,\nincluding the Attorney General. Id. \xc2\xa7 403-3(a)(l).4\nYour inquiry did not ask us to examine the various statutory restrictions on\nthe domestic or law enforcement activities of the CIA and other IC agencies and\nwe have refrained from doing so in this memorandum. We do not believe, how\xc2\xad\never, that the restrictions imposed on the CIA under 50 U.S.C. \xc2\xa7403-3(d)(l) are\nnecessarily inconsistent with providing the kind of informational assistance to fed\xc2\xad\neral prosecutors authorized under Rule 6(e)(3)(A)(ii). Such assistance may be pro\xc2\xad\nvided without exercising the kind of police, subpoena, law enforcement, or internal\nsecurity powers or functions which are foreclosed to the CIA under the statutory\nrestrictions. In providing such authorized assistance, however, CIA officials would\nremain subject to those statutory restrictions and would be required to limit them\xc2\xad\nselves to activities (such as providing informational support) that do not in them\xc2\xad\nselves constitute the exercise of law enforcement powers.\nC. The D C I\xe2\x80\x99s Right o f Access under the National Security Act\nOne provision of the NSA could arguably be construed not only to authorize,\nbut even to require, Department of Justice attorneys to make certain national secu\xc2\xad\nmentary material obtained by the grand jury See, e g ., United Stales v. Interstate Dress Carriers, Irtc , 280 F 2 d\n52, 54 (2d Cir 1960) (restricting Rule 6(e)\xe2\x80\x99s secrecy requirement to material sought in order \xe2\x80\x9c to leam what took\nplace before the grand ju ry ,\xe2\x80\x9d as distinguished from material sought \xe2\x80\x9c for its intrinsic value in the furtherance of\na lawful investigation\xe2\x80\x9d )\n4 The relationship between the intelligence-shanng requirements o f the NSA and the secrecy restrictions of Rule\n6(e) are discussed immediately below in Part I.C.\n\n161\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nrity-related grand jury information available to the Director of Central Intelligence.\nSection 104(a) of the NSA provides as follows:\nTo the extent recommended by the National Security Council and\napproved by the President, the Director of Central Intelligence shall\nhave access to all intelligence related to the national security which\nis collected by any department, agency, or other entity of the United\nStates.\n50 U.S.C. \xc2\xa7403-4(a) (1994). Whether this provision may actually require disclo\xc2\xad\nsure of some 6(e) material to the DCI depends on several distinct considerations:\n(1) to what extent have the NSC and the President mandated the DCI access rights\nauthorized by the statute; (2) may grand jury information covered by Rule 6(e)\nconstitute \xe2\x80\x9c intelligence . . . collected by any department\xe2\x80\x9d within the meaning\nof the statute; and (3) if the NSA\xe2\x80\x99s access requirements can be construed to extend\nto grand jury information, do those requirements supersede the restrictions of Rule\n6(e)?\n1. Implementation o f Statutory Authorization. The general authorization of sec\xc2\xad\ntion 104(a) is implemented by Executive Order No. 12333. Exec. Order No.\n12333, 3 C.F.R. 200 (1982). Section 1.6(a) of the Executive Order provides:\nThe heads of all Executive Branch departments and agencies shall,\nin accordance with law and relevant procedures approved by the\nA ttorney General under this Order, give the Director of Central\nIntelligence access to all information relevant to the national intel\xc2\xad\nligence needs of the United States, and shall give due consideration\nto the requests from the Director of Central Intelligence for appro\xc2\xad\npriate support for Intelligence Community activities.\nId. at 204 (emphasis added).\n\nThe underscored language raises the question whether the Attorney General\nmust issue specific procedures governing DCI access as a condition precedent\nto the agencies\xe2\x80\x99 obligation to provide access taking effect (it is our understanding\nthat no formal procedures have been issued by the Attorney General under this\nprovision). We do not interpret the Executive Order in that way. Rather, we\nbelieve that the Executive Order itse lf imposes a requirement for departments to\nprovide access to the covered category of intelligence insofar as the DCI requests\nsuch access. The Executive Order additionally requires that the provision of such\naccess must comply with any applicable procedural requirements that the Attorney\n162\n\n\x0cDisclosure o f Grand Jury Material to the Intelligence Community\n\nGeneral has approved to govern particular categories of information covered by\nthe Executive Order.5\nAccordingly, we conclude that Executive Order No. 12333 implements section\n104(a) of the NSA in a manner that requires the Justice Department, subject to\nsuch procedures as may be approved by the Attorney General, to provide the\nDCI with requested access to \xe2\x80\x9c intelligence related to the national security.\xe2\x80\x9d\n2.\n"Intelligence\xe2\x80\x9d Subject to Access Requirement. Section 104(a)\xe2\x80\x99s access\nrequirement extends only to \xe2\x80\x9c intelligence related to the national security.\xe2\x80\x9d That\nphrase is a term of art, requiring consideration of several related NSA definitions\nin order to determine whether, and to what extent, it applies to national securityrelated information arising before a grand jury.\nUnder the NSA, the term \xe2\x80\x9c intelligence\xe2\x80\x9d includes \xe2\x80\x9c foreign intelligence and\ncounter-intelligence.\xe2\x80\x9d 50 U.S.C. \xc2\xa7401 a( 1) (1994). The term \xe2\x80\x9c foreign intel\xc2\xad\nligence\xe2\x80\x9d means \xe2\x80\x9c information relating to the capabilities, intentions, or activities\nof foreign governments or elements thereof, foreign organizations, or foreign per\xc2\xad\nsons.\xe2\x80\x9d Id. \xc2\xa7401a(2).6 Finally, \xe2\x80\x9c intelligence related to the national security\xe2\x80\x9d is\njointly defined with the term \xe2\x80\x9c national intelligence\xe2\x80\x9d as follows:\n(5)\nThe terms \xe2\x80\x9c national intelligence\xe2\x80\x9d and \xe2\x80\x9c intelligence related\nto the national security\xe2\x80\x9d \xe2\x80\x94\n(A) each refer to intelligence which pertains to the\ninterests o f more than one department or agency of the\nGovernment; and\n(B) do not refer to counterintelligence or law enforcement\nactivities conducted by the Federal Bureau of Investigation\nexcept to the extent provided for in procedures agreed to\nby the Director of Central Intelligence and the Attorney\nGeneral, or otherwise as expressly provided for in this title.\nId. \xc2\xa7 401 a(5).\n\nThese definitions are broad in scope. \xe2\x80\x9c Foreign intelligence,\xe2\x80\x9d for example,\nextends to \xe2\x80\x9c information relating to the . . . activities of . . . foreign persons.\xe2\x80\x9d\nId. \xc2\xa7401a(2). Moreover, apart from the exclusion of information revealing certain\ncounterintelligence or law enforcement activities \xe2\x80\x9c conducted by\xe2\x80\x9d the FBI, id.\ns We should note, however, that to the extent that the information to which the DCI seeks access under scction\n104(a) concerns Untied Suites persons, compliance with procedures approved by the Attorney General is a condition\nprecedent to access under the terms o f scction 2.3 o f Executive O rder No 12333 See 3 C F R at 2 1 1. Thai scction\nspecifies that Intelligence Community agencies are authorized to collcct or retain information concerning United\nStates persons \xe2\x80\x9c only in accordance with procedures established by the head of the agency concerned and approved\nby the Attorney General, consistent with the authorities provided by Part I of this Order.\xe2\x80\x9d Id Wc understand that\nsuch procedures have been approved by the Attorney General\n6 \xe2\x80\x9c Counterintelligence\xe2\x80\x9d means \xe2\x80\x9c information gathered and activities conductcd to protect against espionage, other\nintelligence activities, sabotage, or assassinations conducted by or on behalf of foreign governments or elements\nthereof, foreign organizations, or foreign persons, or international terrorist activities \xe2\x80\x9d 50 U.S C \xc2\xa7401a(3)\n\n163\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\n\xc2\xa7401a(5)(B),7 the definitions contain no apparent indications that information\ncoming to the Department of Justice through its involvement in grand jury pro\xc2\xad\nceedings is per se excluded from their scope.\nAccordingly, we believe that grand jury information that (1) relates to the activi\xc2\xad\nties of foreign governments, foreign organizations, or foreign persons; (2) pertains\nto the interests of more than one federal department or agency; and (3) is\n\xe2\x80\x9c required for the formulation and/or implementation of national security policy,\xe2\x80\x9d 8\nconstitutes \xe2\x80\x9c intelligence related to the national security\xe2\x80\x9d within the meaning of\nsection 104(a) of the NSA. Consequently, the DCI is authorized to gain access\nto grand jury information meeting that description when it is obtained by Depart\xc2\xad\nment of Justice attorneys, unless such access is barred or restricted by the provi\xc2\xad\nsions of Rule 6(e).\n3. Conflict between NSA and Rule 6(e). Even where 6(e) materials encompass\nnational security intelligence subject to the D CI\xe2\x80\x99s access rights under section\n104(a) of the NSA, Rule 6(e) contains no provision or exception for disclosing\nthe information to the DCI on that basis. Moreover, Rule 6(e)\xe2\x80\x99s provisions for\ndisclosure of grand jury material for purposes of assisting attorneys for the\nGovernment, or pursuant to court approval in connection with \xe2\x80\x9cjudicial pro\xc2\xad\nceedings,\xe2\x80\x9d would not normally be available for purposes of DCI access. See Part\nI.A, supra at 160. Consequently, it is necessary to consider whether the DCI\naccess requirements of the NSA should be construed to supersede or override\nthe restrictions of Rule 6(e).\nWe find no case authority addressing this precise issue. In Illinois v. Abbott\n& A ssociates, Inc., 460 U.S. 557 (1983), however, the Supreme Court addressed\nthe comparable issue of whether a statute requiring the Attorney General to dis\xc2\xad\nclose information to state attorneys general in connection with certain joint anti\xc2\xad\ntrust enforcement matters may override the restrictions of Rule 6(e) when informa\xc2\xad\ntion covered by the disclosure statute encompasses grand jury material otherwise\nrestricted by Rule 6(e). Emphasizing that the disclosure statute in question (section\n4F(b) of the Clayton Act, 15 U.S.C. \xc2\xa7 15f(b) (1994)) contained the limiting phrase\n\xe2\x80\x9c to the extent permitted by law,\xe2\x80\x9d the Court held that it did not authorize disclo\xc2\xad\nsures o f grand jury information outside the procedures of Rule 6(e). More gen\xc2\xad\nerally, the Court indicated that a statute should not be construed to override the\n7This exclusion from the N SA \xe2\x80\x99s definition o f \xe2\x80\x9c national intelligence\xe2\x80\x9d was described as follows in the Senate\nCommittee Report pertaining to that provision.\nIn view o f the prohibitions contained in section 103(d) o f the Act (as added by the bill) as well as in\nexisting law, that the CIA should have no law enforcement or internal security functions, the Committee\nbelieves it desirable to exclude information concerning certain o f the counter-intelligence and law enforce\xc2\xad\nment activities o f the FBI from the definition of \xe2\x80\x9c national intelligence\xe2\x80\x9d This exclusion is intended to\nrem ove information concerning FBI operational activities from the purview of \xe2\x80\x9c national intelligence\xe2\x80\x9d\nexcept where the Director o f Central Intelligence and the A ttorney General agree that such information\ncan and should be shared\nS. Rep No. 102-324, at 26 (1991)\n85 ^ S Rep. No 102-324, at 25, 33.\n\n164\n\n\x0cDisclosure o f Grand Jury Material to the Intelligence Community\n\ngrand jury secrecy restrictions of Rule 6(e) unless Congress affirmatively\nexpresses its intent to do so. As the Court stated:\nCongress, of course, has the power to modify the rule of secrecy\nby changing the showing of need required for particular categories\nof litigants. But the rule is so important, and so deeply rooted in\nour traditions, that we will not infer that Congress has exercised\nsuch a power without affirmatively expressing its intent to do so.\n460 U.S. at 572-73 (footnote omitted).\nIn some respects, section 104(a) of the NSA is distinguishable from section\n4F(b) of the Clayton Act as addressed by the Court in Abbott. Unlike the latter\nstatute, section 104(a)\xe2\x80\x99s DCI access requirement is not qualified by the phrase\n\xe2\x80\x9c to the extent permitted by law\xe2\x80\x9d or the equivalent. Moreover, that express quali\xc2\xad\nfication on the section 4F(b) disclosure requirement was a critical element of the\nAbbott Court\xe2\x80\x99s holding that it did not override Rule 6(e)\xe2\x80\x99s restrictions. See 460\nU.S. at 566-68. Further, the Abbott opinion also relied heavily upon the fact that\nsection 4F(b)\xe2\x80\x99s legislative history revealed that Congress specifically considered\nand rejected a provision that would have granted plaintiffs in civil antitrust actions\na right of access to grand jury materials after the completion of federal civil or\ncriminal proceedings. Id. at 569. There was also specific evidence in the floor\ndebate on section 4F(b) that Congress did not intend to change existing law\nrespecting grand jury materials. Id. at 570. Section I04(a)\xe2\x80\x99s pertinent legislative\nhistory, in contrast, does not reflect any specific consideration of its relationship\nto grand jury secrecy. Given these distinguishing factors, it could be argued that\nthe Abbott holding does not conclusively resolve the issue presented.here.\nNonetheless, the Abbott Court\xe2\x80\x99s more general assertion that legislative modifica\xc2\xad\ntion of the grand jury secrecy rules can only be accomplished if Congress\n\xe2\x80\x9c affirmatively express[es] its intent to do so,\xe2\x80\x9d 460 U.S. at 573, presents a formi\xc2\xad\ndable rejoinder to the argument that section 104(a) overrides the provisions of\nRule 6(e).9 Neither the text of section 104(a) nor its pertinent legislative history\ncontains such an affirmative expression of intent to override grand jury secrecy\nrestrictions. Section 104(a)\xe2\x80\x99s provision for the DCI\xe2\x80\x99s access to \xe2\x80\x9c intelligence\nrelated to the national security\xe2\x80\x9d does not clearly manifest an intent to reach grand\njury information, although the \xe2\x80\x9c intelligence\xe2\x80\x9d covered by th e statute could reason\xc2\xad\nably be interpreted to encompass certain kinds of grand jury information in the\n9 One well-rccognizcd rule of construction that is often relevant in reconciling conflicting statutory provisions\nis inconclusive here Where there is no clearly expressed congressional intention to the contrary, \xe2\x80\x9c a statute dealing\nwith a narrow, precise, and specific subject is nol submerged by a later enacted statute covering a more generalized\nspectrum \xe2\x80\x9c Riulzanower v Touche Ross & C o , 426 U.S. 148, 153 (1976) That raises the question w hether Rule\n6(c)\xe2\x80\x99s restriction on the disclosure ot matters occum ng before a grand jury is more \xe2\x80\x9c narrow, precise, and specific\xe2\x80\x9d\nthan section I04(a)*s later-enacted provision for DCI access to \xe2\x80\x9c intelligence related to the national security.\xe2\x80\x9d Because\nboth provisions deal with narrow and specialized categories o f information, we find the rule of relative specificity\nto no avail in this context.\n\n165\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nhands of the Department of Justice. The most that may be said about section\n104(a)\xe2\x80\x99s text in this regard is that it is unclear on the point.\nNor does the legislative history provide evidence that the provision was intended\nto apply to grand jury information that falls within the applicable definition of\n\xe2\x80\x9c intelligence.\xe2\x80\x9d For example, the pertinent Senate Report\xe2\x80\x99s discussion of section\n104(a) states that \xe2\x80\x9c this authority is similar to existing law\xe2\x80\x9d and emphasizes that\n\xe2\x80\x9c the D C I\xe2\x80\x99s right of access extends only to \xe2\x80\x98national intelligence\xe2\x80\x99 as that term\nis defined by the bill.\xe2\x80\x9d S. Rep. No. 102-324, at 33. The indication that section\n104(a) was not intended to substantially change existing law regarding access to\nnational intelligence also tends to undercut the view that section 104(a) was\nintended to modify Rule 6(e) restrictions, inasmuch as there was no recognized\nnational security exception to such restrictions when section 104(a) was enacted.\nFinally, although section 104(a) is not qualified by the phrase \xe2\x80\x9c to the extent\npermitted by law\xe2\x80\x9d that was stressed by the Court in A bbott , the Executive Order\nthat implements section 104(a) does contain an arguably comparable qualification.\nExecutive Order No. 12333\xe2\x80\x99s requirement for agencies to provide the DCI with\naccess to national intelligence is preceded by the qualifying phrase, \xe2\x80\x9c in accord\xc2\xad\nance with law.\xe2\x80\x9d See 3 C.F.R. at 204. Because section 104(a)\xe2\x80\x99s requirements apply\nonly \xe2\x80\x9c [t]o the extent recommended by the National Security Council and approved\nby the President,\xe2\x80\x9d 50 U.S.C. \xc2\xa7403-4(a), those requirements are subject to the\nrestrictions and limitations of Executive Order No. 12333 until it is replaced or\nrevised. Under the Supreme Court\xe2\x80\x99s analysis in Abbott, see 460 U.S. at 565-67,\nthe \xe2\x80\x9c in accordance with law\xe2\x80\x9d qualification of the Executive Order, although less\nclear than the \xe2\x80\x9c to the extent permitted by law\xe2\x80\x9d qualification at issue in Abbott,\nmight be construed to mean that section 104(a)\xe2\x80\x99s DCI access requirements are\nto be applied \xe2\x80\x9c in accordance with\xe2\x80\x9d the requirements of Rule 6(e), which is part\nof the \xe2\x80\x9c law \xe2\x80\x9d referred to in the qualification.10\nWe recognize that the national security concerns underlying the need for the\nDCI\xe2\x80\x99s access to 6(e) material will generally be considerably more compelling than\nthe federal-state antitrust enforcement concerns reflected in section 4F(b) of the\nClayton Act. If section 104(a)\xe2\x80\x99s subordination to the restrictions of Rule 6(e) fore\xc2\xad\nclosed all avenues for national security-based access to grand jury information\nin such compelling circumstances, the deference to Rule 6(e) reflected in the\nA bbott opinion would have to be weighed against countervailing national security\nconsiderations. As we explain in Part II, infra, however, we believe there is valid\nconstitutional authority for executive branch access to grand jury material outside\nthe provisions of Rule 6(e) when national security considerations are sufficiently\ncompelling.\n|0 W e also noie lhat section 2 8 of Executive O rd er No 12333 provides\' \xe2\x80\x9c Nothing in this Order shall be construed\nto authorize any activity in violation of the Constitution or statutes of the United S ta te s\xe2\x80\x9d See 3 C.F R at 213\nWe do not consider this provision as a conclusive indication that section 1 6(a) of the Order does not require DCI\naccess to 6(e) material, because such access would not be unlawful if section 104(a) of the NSA actually and validly\nsupersedes Rule 6(e) within the scope o f its coverage\n\n166\n\n\x0cDisclosure o f Grand Jury Material to the Intelligence Community\n\nIn light of all the foregoing, we do not believe that section 104(a) of the NSA,\nas implemented by Executive Order No. 12333, provides sound authority for Jus\xc2\xad\ntice Department disclosure of 6(e) material constituting \xe2\x80\x9c information related to\nthe national security\xe2\x80\x9d to the DCI.\nD. Attorney-Initiated or Court-Approved Disclosure\nAnother general consideration is whether, as a practical .matter, the Government\nwould be willing to seek prior judicial approval for disclosure of the information\nto the IC, or whether use of judicial procedures is incompatible with the objectives\nin question. In the vast majority of circumstances, the provisions for disclosure\nto government personnel under Rule 6(e)(3)(A)(ii) would provide the only relevant\nand practical means for possible authorized disclosure to IC officials. That proce\xc2\xad\ndure does not require any judicial approval, but it is limited to circumstances\nwhere a government attorney needs the assistance of other government personnel\nin connection with federal criminal law enforcement duties. We believe that most\ncircumstances where disclosure to 1C personnel could be justified under the Rule\nwould be cases where a federal prosecutor, or the Attorney General, has a need\nfor intelligence assistance or support in connection with a matter involving\nenforcement of federal criminal law. In those circumstances, disclosure without\ncourt approval would be authorized under subparagraph (A)(ii) insofar as the\n\xe2\x80\x9c necessary assistance\xe2\x80\x9d criterion is satisfied.\nThere may, however, be circumstances where the \xe2\x80\x9c self-initiated\xe2\x80\x9d disclosure\nprovisions of subparagraph (A)(ii) are unavailable or unsuitable. For example,\nthose provisions would not authorize disclosure of 6(e) material for purposes\nrelated to the investigation or prosecution of crimes committed under the laws\nof a foreign state or to civil enforcement proceedings. Under those circumstances,\nthe additional avenues of disclosure provided by Rule 6(e)(3)(C) could be consid\xc2\xad\nered.11 Under those provisions, disclosure of 6(e) material could arguably be made\nto IC personnel if the disclosure could be considered \xe2\x80\x9c preliminarily to or in\nconnection with a judicial proceeding.\xe2\x80\x9d Fed. R. Crim. P. 6(e)(3)(C)(i). That limita\xc2\xad\ntion, like the (3)(A)(ii) \xe2\x80\x9c use\xe2\x80\x9d restrictions, clearly would not permit any disclo\xc2\xad\nsures made for intelligence-gathering purposes. However, it would arguably permit\ncourt-approved disclosure to IC personnel if the purpose was for government attor\xc2\xad\nneys to obtain the IC\xe2\x80\x99s informational assistance or assessment in support, for\nexample, of criminal or civil investigations intended to result in some form of\njudicial enforcement proceedings (e.g., an SEC enforcement proceeding culmi\xc2\xad\nnating in an application for injunctive relief or a court-approved consent decree).12\n11 We note that Rule 6(e)(3)(D) permits the court to hold e.\\ parte hearings when the Government petitions for\ncourt-approvcd disclosure under the (C)(0 provisions\n,2 At least one court has suggested that the (C)(i) provision may extend even to \xe2\x80\x9c judicial proceedings\xe2\x80\x9d conducted\nin a foreign state See, e.g , In Re Baird, 668 F 2d 432, 434 n 3 (8th C ir) (\xe2\x80\x9c We assume, without deciding, that\nContinued\n\n167\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nMoreover, 6(e) materials obtained under the judicial approval procedures are not\nsubject to the same explicit limitation on use that apply to (A)(ii) disclosures,\npresumably because a court can address permissible uses in any order it might\nenter. See Fed. R. Crim. P. 6(e)(3)(C).\nSome courts have applied a relatively flexible interpretation to the requirement\nthat (3)(C)(i) disclosures must be made \xe2\x80\x9c preliminarily to . . . a judicial pro\xc2\xad\nceeding.\xe2\x80\x9d 13 As the standard was described by Judge Learned Hand, writing for\nthe Second Circuit:\n[T]he term \xe2\x80\x9cjudicial proceeding\xe2\x80\x9d includes any proceeding deter\xc2\xad\nminable by a court, having for its object the compliance of any\nperson subject to judicial control, with standards imposed upon his\nconduct in the public interest, even though such compliance is\nenforced without the procedure applicable to the punishment of\ncrime. An interpretation that should not go at least so far, would\nnot only be in the teeth of the language employed, but would defeat\nany rational purpose that can be imputed to the Rule.\nD oe v. Rosenberry, 255 F.2d 118, 120 (2d Cir. 1958). Further, as stated by the\nNinth Circuit, \xe2\x80\x9c [njeither the possibility that no judicial proceeding will result nor\nthe likelihood that litigation will occur is controlling.\xe2\x80\x9d In re Barker , 741 F.2d\nat 254.\nOn the other hand, the Supreme Court has stressed that disclosure under the\n(3)(C)(i) exception is permitted only where \xe2\x80\x9c the primary purpose of disclosure\nis . . .t o assist in preparation or conduct of a judicial proceeding.\xe2\x80\x9d United States\nv. Baggot, 463 U.S. 476, 480 (1983). Even when the required connection to a\njudicial proceeding is satisfied, moreover, the courts additionally require a\nshowing of \xe2\x80\x9c compelling necessity\xe2\x80\x9d and \xe2\x80\x9c particularized need\xe2\x80\x9d before they will\norder disclosure of grand jury information under Rule 6(e)(3)(C)(i). See, e.g.,\nSobotka.\n\nIn sum, court-approved disclosure of 6(e) material to IC personnel could\nconceivably be obtained in those circumstances where the purpose of the disclo\xc2\xad\nsure would be for the IC to provide information or intelligence in support of an\ninvestigation or proceeding that is intended to culminate in a foreseeable judicial\nproceeding (e.g., a civil proceeding to enjoin the export of dual-use technology\nto a terrorist front organization, or even the prosecution of a terrorist in the courts\nthe phrase \xe2\x80\x98judicial proceeding\xe2\x80\x99 includes a criminal trial conducted in a foreign country \xe2\x80\x9d ), cert denied, 456 U S\n982 (1982)\n13 See, e g , In re Barker, 741 F.2d 250 (9lh Cir 1984) (investigation o f attorney by bar association held preliminary\nto a judicial proceeding). United States v Sobotka, 623 F.2d 764 (2d C ir 1980) (disclosure to bar grievance com\xc2\xad\nmittee), Special February 1971 Grand Jury v Conhsk, 490 F 2d 894, 897 (7th Cir 1973) (disclosure to police\nboard o f inquiry); In re Petition to Inspect and Copy Grand Jury Materials, 576 F Supp 1275 (S D R a. 1983)\n(disclosure to Circuit Judicial Council committee for judicial misconduct investigation), aff\'d, 735 F 2 d 1261 (11th\nCir. 1984)\n\n168\n\n\x0cDisclosure o f Grand Jury Material to the Intelligence Community\n\nof a foreign state). Although disclosure for this purpose under subparagraph\n(3)(C)(i) would be very similar to disclosure in order to assist a prosecutor under\n(3)(A)(ii), the latter provision imposes explicit restrictions on use that are not con\xc2\xad\ntained in Rule 6(e)(3)(C)(i). In the case of \xe2\x80\x9c judicial proceedings\xe2\x80\x9d disclosure, the\ncourt is authorized to determine the conditions of disclosure depending upon the\nparticular circumstances. See Fed. R. Crim. P. 6(e)(3)(C) (providing that disclo\xc2\xad\nsures pursuant to that subsection may be ordered under \xe2\x80\x9c such conditions as the\ncourt may direct\xe2\x80\x9d ). Those conditions may or may not include a requirement that\nthe information be used solely in furtherance of the judicial proceedings in ques\xc2\xad\ntion.14\nNotwithstanding this departure from the explicit \xe2\x80\x9c use\xe2\x80\x9d restrictions applicable\nto self-initiated disclosures under Rule 6(e)(3)(A)(ii), however, the subparagraph\n(3)(C)(i) provision for court-approved disclosure is not likely to provide a mean\xc2\xad\ningful and practical alternative to (A)(ii) disclosure in this context except in very\nrare circumstances. Insofar as a court might permit disclosure to IC personnel\nto provide assistance \xe2\x80\x9c preliminary to\xe2\x80\x9d a civil or criminal judicial enforcement\nproceeding pursuant to subparagraph (C)(i), we consider it unlikely that the courts\nwould authorize such disclosure without imposing conditions and restrictions on\nuse that would be similar to those applicable under subparagraph (A)(ii) (e.g.,\npermitting use of the 6(e) material only in connection with the anticipated judicial\nproceeding).\nII. SPEC IFIC QUESTIONS\nWe now respond to the more particularized questions identified in discussions\nwith your office.\nQuestion 1. When grand jury material is lawfully disclosed to IC personnel\nfor purposes o f assisting an attorney for the Government in the enforcement of\nfederal criminal law pursuant to Rule 6(e)(3)(A)(ii), and the 1C does use it to\nprovide such assistance, may the IC also make use of such material for purposes\nother than federal criminal law enforcement, such as foreign intelligence purposes?\nResponse: No. The law on this point, both codified in the text of Rule 6(e)\nand as applied in the case law, is unambiguously restrictive. Rule 6(e)(3)(B) pro\xc2\xad\nvides that government personnel to whom 6(e) material is lawfully disclosed under\nsubparagraph (A)(ii) of the Rule \xe2\x80\x9c shall not utilize that grand jury material fo r\nany purpose other than assisting the attorney for the government in the perform\xc2\xad\nance of such attorney\xe2\x80\x99s duty to enforce federal criminal law\xe2\x80\x9d (emphasis added).\nAs explained by the court in United States v. Kilpatrick , 821 F.2d 1456, 1471\nC f In re Request fo r Access lo Grand Jury Materials, 833 F.2d 1438. 1445-46 ( ll th Cir 1987) (approving\norder issued under Rule 6(e)(3)(C) subject to provision that grand jury materials disclosed in connection with\nimpeachment proceedings would be limited to House o f Representatives, as distinct from members o f the Senate,\nbecause request was made by the House Judiciary Committee based upon the investigative powers held by the House)\n\n169\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\n(10th Cir. 1987), a j f d sub nom. Bank o f Nova Scotia v. United States, 487 U.S.\n250 (1988) (emphasis added) (citation and footnote omitted):\nFederal employees assisting the prosecutor in the investigation\nand prosecution of federal criminal violations are permitted access\nto grand jury materials without prior court permission. However,\nsuch support personnel may not use the m aterials except fo r pur\xc2\xad\np o ses o f assisting Government attorneys to enforce federal criminal\nlaws. Sells Engineering, 463 U.S. at 428, 442; see also 8 J. Moore\n\nat H 6.05.[4][a], at 6-119. The Rule 6(e) proscription is on the use\nof the grand jury material and not on who obtains it.\nIt should also be stressed, however, that the phrase \xe2\x80\x9c assist . . . in the perform\xc2\xad\nance of such attorney\xe2\x80\x99s duty to enforce federal criminal law\xe2\x80\x9d can be construed\nto cover a wide range of matters, such as identifying possible violators of farreaching anti-drug and anti-terrorism laws in the federal criminal code.\nQ uestion 2. Under the same circumstances described in 1., above, if the IC\nincidentally learns certain collateral information solely by reason of its access to\nthe 6(e) material \xe2\x80\x94 for example, it is able to deduce the identity and location\nof a foreign terrorist from certain related information adduced before the grand\njury, although that identity and location did not themselves surface before the\ngrand ju ry \xe2\x80\x94 can the IC lawfully use that derivative information for purposes other\nthan federal criminal law enforcement, such as foreign intelligence purposes?\nResponse: Our research has failed to identify published opinions or commentary\naddressing this issue. A reasonable argument can be made, however, that as long\nas the IC was lawfully using the 6(e) material to assist the Government attorneys,\nand learned the collateral information within the scope of its authorized support\noperations, the Rule does not require the IC to refrain from using derivative\ninformation that it learns incidentally in the course of providing such assistance.\nSpecifically, Rule 6(e)(3)(B) restricts the use of \xe2\x80\x9c grand jury material,\xe2\x80\x9d and\nnothing else.15 In the circumstances posited, the IC personnel would not be unlaw\xc2\xad\nfully utilizing the grand ju ry material for ulterior purposes; rather, they would\nbe lawfully using the derivative information (which does not constitute \xe2\x80\x9c matters\noccurring before the grand jury\xe2\x80\x9d ). We would caution, however, that the use of\nderivative information might violate the grand jury secrecy rules if such use would\nforeseeably result in the unauthorized disclosure of information that does con\xc2\xad\nstitute \xe2\x80\x9c matters occurring before the grand jury\xe2\x80\x9d \xe2\x80\x94 i.e., information that would\nreveal or compromise the secret deliberations o f the grand jury itself, see Anaya\nv. United States, 815 F.2d 1373, 1379-80 (10th Cir. 1987). We would further\ncaution that we cannot say with confidence that a court would approve the deriva\xc2\xad\n15 In contrast, statutory restrictions on the use o f intercepted wire and oral communications extend not only to\nthe contents o f such communications, but also to \xe2\x80\x9c evidence derived therefrom.\xe2\x80\x9d 18 U S C . \xc2\xa7\xc2\xa72515, 2517 (1994)\n\n170\n\n\x0cDisclosure o f Grand Jury Material to the Intelligence Community\n\ntive use of Rule 6(e) material. Nor can we presume that, without prior court\napproval, a government attorney might not risk sanctions in permitting such\nderivative use.\nQuestion 3. When 6(e) material is lawfully disclosed to the IC pursuant to\nRule 6(e)(3)(A)(ii) for assistance purposes, what is the breadth of the federal\ncriminal law enforcement purposes for which the IC may use such information?\nFor example, if the \xe2\x80\x9c attorney for the government\xe2\x80\x9d to whom the assistance is\nto be provided is the Attorney General, may the assistance provided by the IC\nextend to the full range of the Attorney General\xe2\x80\x99s federal criminal law enforce\xc2\xad\nment authorities? 16\nResponse: Applying the plain language of Rule 6(e)(3)(A)(ii), the scope of\nauthorized assistance is determined by (1) the scope of the requesting attorney\xe2\x80\x99s\n\xe2\x80\x9c duty to enforce federal criminal law\xe2\x80\x9d and (2) the scope of the attorney\xe2\x80\x99s request\nfor assistance. If government personnel are rendering assistance to the Attorney\nGeneral under the (A)(ii) provision, for example, their assistance may extend to\na broad criminal law enforcement program for which the Attorney General is\nresponsible-or to a single case or investigation, depending upon the scope of her\nrequest for assistance.17 This is consistent with our prior opinion on permissible\ndisclosure of grand jury matters by the Attorney General, where we opined that\nthe Attorney General could disclose 6(e) material to members of the National\nSecurity Council in order to obtain their assistance in carrying out her criminal\nlaw enforcement responsibilities. See 1993 Opinion, 17 Op. O.L.C. at 61-64.. We\nnoted the legislative history underlying the Rule 6(e)(3)(A)(ii) exception, which\ndemonstrates that Congress intended federal prosecutors to have leeway \xe2\x80\x9c to make\nsuch disclosures of grand jury information to other government personnel as they\ndeem necessary to facilitate the performance of their duties relating to criminal\nlaw enforcement." S. Rep. No. 95-354, at 8 (1977), reprinted in, 1977\nU.S.C.C.A.N. 527, 531 (emphasis added). However, personnel providing assist\xc2\xad\nance to government attorneys under subparagraph (A)(ii) cannot assume a broad\nmandate for their activities merely because the requesting attorney has broad\nresponsibilities (e.g., a U.S. Attorney or an Assistant Attorney General). The scope\nof assistance must be confined to the area of enforcement specified by the\nrequesting attorney.\nTo the extent that 6(e) material may be disclosed to IC personnel under the\n(A)(ii) exception, it must be noted that a list naming all the officials to whom\nsuch disclosures are made must be submitted to the district court that empaneled\nthe grand jury. See Fed. R. Crim. P. 6(e)(3)(B).\n1(1For purposes o f the Federal Rules o f Criminal Procedure, including Rule 6(e), the term \xe2\x80\x9c attorney for the govern\xc2\xad\nment\xe2\x80\x9d includes the Attorney General, an authorized assistant of the Attorney General, a U.S Attorney, and an\nauthorized assistant o f a U.S Attorney Fed R Cnm P 54(c), see (Jmteil States v Bates, 627 F.2d 349, 351\n(D.C Cir 1980).\n17See generally In re Federal Grand Jury Wtines.s, 597 F 2d I 166, I 168 (9th Cir 1979) (Hufstedler, J., concurring\nspecially) ( \xe2\x80\x9c if the government attorney\'s duties include ihe cooperative exchange of information with foreign officials\nto stop international drug trafficking. Rule 6(e) may permit disclosure\xe2\x80\x9d )\n\n171\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nQ uestion 4. May 6(e) material be disclosed to IC officers where the information\nin question is urgently relevant to a matter of grave consequences for national\nsecurity or foreign relations (e.g., information revealing that certain dual tech\xc2\xad\nnology exports under investigation by the Grand Jury are to be used for the\nbombing of a major government building in a foreign state closely allied to the\nUnited States), even though the purpose of the disclosure does not fall within\nthe coverage of Rule 6(e)\xe2\x80\x99s listed exceptions to grand jury secrecy?\nResponse: Where approved by the President, we believe such disclosure would\nbe lawful, although we caution that the legal principles supporting this conclusion\nare not firmly-established in the case law concerning grand jury secrecy. Nonethe\xc2\xad\nless, we believe such disclosure would rest upon the same fundamental constitu\xc2\xad\ntional principle that has been held to justify government action overriding indi\xc2\xad\nvidual rights or interests in other contexts where the action is necessary to prevent\nserious damage to the national security or foreign policy of the United States.\nSee generally Haig v. Agee, 453 U.S. 280, 309 (1981) (invoking the principle\nthat the Constitution\xe2\x80\x99s guarantees o f individual rights do not make it a \xe2\x80\x9c suicide\npact\xe2\x80\x9d ); American Communications Ass\'n, C.I.O. v. Douds, 339 U.S. 382, 408\n(1950) (to the same effect). Indeed, the justification for disclosure in this context\nwould appear even stronger, inasmuch as the restrictions against disclosure are\nbased upon the Federal Rules of Criminal Procedure rather than individual rights\ngrounded in the Constitution.\nIn our 1993 opinion concerning disclosure of Rule 6(e) material to the President\nand members of the National Security Council, we recognized the general prin\xc2\xad\nciple that, under certain compelling circumstances, the President\xe2\x80\x99s responsibilities\nunder Article II of the Constitution can provide justification for disclosures of\ngrand jury information that would not be authorized by the provisions of Rule\n6(e) itself. See 1993 Opinion, 17 Op. O.L.C. at 65-69. Here, the application of\nthat principle occurs in the context o f the President\xe2\x80\x99s responsibilities under Article\nII for national defense and foreign affairs. The question is whether Rule 6(e)\nshould be construed to limit the access of the President and his aides to informa\xc2\xad\ntion critical to the national security \xe2\x80\x94 information that, in the absence of Rule\n6(e), unquestionably would be provided.\nThe information in question would be crucial to the discharge of one of the\nPresident\xe2\x80\x99s core constitutional responsibilities. The Constitution vests the President\nwith responsibility over all matters within the executive branch that bear on\nnational defense and foreign affairs, including the collection and dissemination\nof national security information.18 Because \xe2\x80\x9c [i]t is \xe2\x80\x98obvious and unarguable\xe2\x80\x99 that\n*s See D epartment o f the Navy v Egan, 484 U.S 518, 527 (1988) ( \xe2\x80\x9c The President, after all, is the \xe2\x80\x98Commander\nin C hief o f the Army and Navy o f the United States.\xe2\x80\x99 U S C o n st, Art. 11, \xc2\xa72 His authonty to\ncontrol access\nto information bearing on national security ,\nflows primarily from this constitutional investment of power\nand exists quite apart from any explicit congressional grant\n. The authonty to protect such information falls\non the President as head o f the Executive Branch and Commander in Chief.\xe2\x80\x9d ), New York Times Co v United\nStates, 403 U S . 713, 728-30 (1971) (Stewart, J., concum ng) ( \xe2\x80\x98\xe2\x80\x98If the Constitution gives the Executive a large\ndegree o f unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under\n\n172\n\n\x0cDisclosure o f Grand Jury Material to the Intelligence Community\n\nno governmental interest is more compelling than the security of the Nation,\xe2\x80\x9d\nHaig, 453 U.S. at 307 (quoting Aptheker v. Secretary o f State, 378 U.S. 500,\n\n509 (1964)), the President has a powerful claim, under the Constitution, to receive\nthe information in question here and to authorize its disclosure to the IC. See\nUnited States v. United States D istrict Court, 407 U.S. 297, 310 (1972) (President\n\xe2\x80\x9c has the fundamental duty under Art. II, \xc2\xa71, of the Constitution, to \xe2\x80\x98preserve,\nprotect and defend the Constitution of the United States.\xe2\x80\x99 \xe2\x80\x9d ).\nOn the other side of the balance is a rule whose words do not specifically\naddress the President\xe2\x80\x99s powers in the field of foreign affairs and national security,\nand whose purpose is not affected by the disclosure at issue. The rule of grand\njury secrecy advances \xe2\x80\x9c several distinct interests\xe2\x80\x9d :\nFirst, if preindictment proceedings were made public, many\nprospective witnesses would be hesitant to come forward volun\xc2\xad\ntarily, knowing that those against whom they testify would be aware\nof that testimony. Moreover, witnesses who appeared before the\ngrand jury would be less likely to testify fully and frankly, as they\nwould be open to retribution, as well as to inducements. There\nwould also be the risk that those about to be indicted would flee,\nor would try to influence individual grand jurors to vote against\nindictment. Finally, by preserving the secrecy o f the proceedings,\nwe assure that persons who are accused but exonerated by the grand\njury will not be held up to public ridicule.\nDouglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 21J, 218-19 (1979) (foot\xc2\xad\n\nnotes and citations omitted). Although routine disclosure even within the govern\xc2\xad\nment may implicate these interests, see United States v. Sells Engineering, Inc.,\n463 U.S. 418, 431-32 (1983), and the Court accordingly has held that Rule 6(e)\ndoes not permit disclosing grand jury materials to Civil Division lawyers for use\nin pursuing civil suits, id., here (in addition to the \xe2\x80\x9c crucial need\xe2\x80\x9d for the informa\xc2\xad\ntion not present in Sells) the extraordinary nature of the circumstances leading\nto disclosure would remove the threat to the grand jury\xe2\x80\x99s integrity. That grand\njury materials may be revealed to the IC under exceptional and exigent cir\xc2\xad\ncumstances would not appreciably reduce the willingness of witnesses to come\nforward and would pose little danger that the government could use grand jury\npowers to pursue non-criminal matters or overcome the otherwise applicable limits\non national security investigations. Id.\nDisclosure in these circumstances would not conflict with the place of grand\njuries in the constitutional structure of government or with the constitutional rights\nthe Constitution the Executive musl have the largely unshared duty to determine and preserve the degree of internal\nsecurity necessary to exercise that power successfully\n[I |t is the constitutional duty of the Executive \xe2\x80\x94 as\na matter of sovereign prerogative and not as a matter o f law as the courts know law \xe2\x80\x94\n. to protect the confiden\xc2\xad\ntiality necessary to carry out its responsibilities in the field o f international relations and national defense \xe2\x80\x9d ).\n\n173\n\n\x0cOpinions o f the Office o f Legal Counsel m Volume 21\n\nof individuals. Cf. United States v. U nited States D istrict Court, 407 U.S. at 316\xe2\x80\x94\n17 (President, acting through Attorney General, lacked power to authorize elec\xc2\xad\ntronic surveillance in domestic security matters without prior judicial warrant).19\nWhere the President\xe2\x80\x99s powers to protect national security are in tension with a\nstatutory rather than a constitutional rule, the statute cannot displace the Presi\xc2\xad\ndent\xe2\x80\x99s constitutional authority and should be read to be \xe2\x80\x9c subject to an implied\nexception in deference to such presidential powers.\xe2\x80\x9d Rainbow Navigation, Inc.\nv. Departm ent o f the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.).20\nThere, the court stated, albeit in a discussion not central to its holding, that it\ndoubted that \xe2\x80\x9c a [Presidential] decision that the Navy should use a foreign ship,\nfaster or less vulnerable than any American ship available, to deliver urgently\nneeded supplies to troops in wartime\xe2\x80\x9d would be prohibited by a statute that, on\nits face, required the United States to prefer domestic shippers if they were avail\xc2\xad\nable. Id. We think Rule 6(e) should be read to be subject to such an implied\nexception.\nThus, we believe there are circumstances where grand jury information learned\nby an attorney for the government m ay be of such importance to national security\nor foreign affairs concerns that to withhold it from the President (or his Cabinet\nmembers and other key delegatees and agents, acting on his behalf) would impair\nhis ability to discharge his executive responsibilities under Article II of the Con\xc2\xad\nstitution. We believe the hypothetical scenario posited in the above question \xe2\x80\x94\ni.e., grand jury proceedings reveal reliable evidence of a plot to bomb a major\ngovernment building in a friendly foreign state \xe2\x80\x94 would clearly constitute such\ncircumstances. In those circumstances, the attorney learning the information would\nbe obliged to convey the information to appropriate superiors (e.g., the U.S.\nAttorney), who would report it to the Attorney General, who would in turn report\nit to the President. The President (or appropriate officials acting on his behalf,\nsuch as the Attorney General) would clearly be authorized to share such crucial\ninformation with his executive branch subordinates, including IC officials, to the\nextent necessary to discharge his constitutional responsibilities.\nAs we noted in our 1993 opinion, such \xe2\x80\x9c emergency\xe2\x80\x9d disclosure of 6(e) material\nwould be necessitated and authorized by Article II of the Constitution, rather than\npermitted by Rule 6(e). See 1993 Opinion, 17 Op. O.L.C. at 65-69. Accordingly,\nin the limited and extraordinary kind of circumstances posited, we do not believe\nthat prior judicial approval of such disclosure would be, or could be, constitu\xc2\xad\n19 We note, however, that if the exigency were extreme enough, even constitutional protections might yield to\nnational security concerns See H aig, 453 U S at 308 ( \xe2\x80\x9c \xe2\x80\x98ln]o one would question but that a government might\nprevent actual obstruction to its recruiting service o r the publication o f the sailing dates of transports or the number\nand location o f troops \xe2\x80\x99 \xe2\x80\x9d ) (quoting N ear v Minnesota ex rel Olson, 283 U S 697, 716 (1931))\n70See also United States v Truong Dinh Hung, 6 2 9 F 2d 908, 914 (4th Cir 1980) (foreign intelligence exception\nto Fourth Amendment warrant requirement, in view o f \xe2\x80\x9c the need o f the executive branch for flexibility, its practical\nexperience, and its constitutional competence\xe2\x80\x9d for foreign affairs), cert denied, 454 U S 1144 (1982), United States\nv. Butenko, 494 F 2d 593, 608 (3d C ir) (en banc), cert, denied, 419 U.S 881 (1974) (interpreting statute and Fourth\nAmendment in light o f President\xe2\x80\x99s constitutional authonty)\n\n174\n\n\x0cDisclosure o f Grand Jury Material to the Intelligence Community\n\ntionally required. Moreover, in the scenario presented, we think self-initiated\ndisclosure would also be authorized under Rule 6(e)(3)(A)(ii) if the plot involved\nany violations of U.S. criminal law (i.e., the disclosure would be in furtherance\nof the disclosing attorney\xe2\x80\x99s duty to enforce federal criminal law). To the extent,\nhowever, that the disclosure involved no violation of U.S. law and thus falls out\xc2\xad\nside the scope of Rule 6(e)\xe2\x80\x99s recognized exceptions, and to the extent that the\nexigencies of the situation would render it appropriate and prudent to request\njudicial approval, there is precedent for court-ordered disclosure outside the\nparameters of Rule 6(e).\nSpecifically, a number of court decisions have recognized that, under truly\nexceptional or compelling circumstances, a federal court may order or permit\ndisclosure of confidential grand jury information on grounds other than those\nauthorized by Rule 6(e). These cases include In re Petition to Inspect and Copy\nGrand Jury M aterials , 735 F.2d 1261 (11th Cir.) (disclosure in aid of judicial\nmisconduct investigation and possible impeachment), cert, denied, 469 U.S. 884\n(1984); In re Biaggi, 478 F.2d 489 (2d Cir. 1973); In re Craig, 942 F. Supp.\n881 (S.D.N.Y. 1996) (recognizing permissibility of extra-Rule 6(e) disclosure\nunder \xe2\x80\x9c exceptional circumstances,\xe2\x80\x9d but holding that it was not justified merely\nto assist a scholar with his dissertation), a f f d 131 F.3d 99 (2d Cir. 1997); In\nre Petition o f May, No. M 11-189 (S.D.N.Y. Jan. 20, 1987), withdrawn 651 F.\nSupp. 457 (S.D.N.Y. 1987) (granting scholar\xe2\x80\x99s request to disclose grand jury testi\xc2\xad\nmony of public official accused of being a Communist spy); In re Report and\nRecommendation o f June 5, 1972, Grand Jury, 370 F. Supp. 1219, 1228\xe2\x80\x9430\n(D.D.C. 1974) (Sirica, C.J.) ( \xe2\x80\x9c Rule 6(e), which was not intended to create new\nlaw, remains subject to the law or traditional policies that gave it birth\xe2\x80\x9d ; disclosure\nof 6(e) material permitted in form of a grand jury report to the House Judiciary\nCommittee in connection with Watergate investigation); see also Atlantic City\nElec. Co. v. A.B. Chance Co., 313 F.2d 431, 434 (2d Cir. 1963) ( \xe2\x80\x9c a court may\norder the disclosure of grand jury minutes when there is a showing of special\nand compelling circumstances sufficient to overcome the policy against disclo\xc2\xad\nsure\xe2\x80\x9d ; no reference to Rule 6(e) as source of such judicial authority).\nAgain, in light of the extraordinary nature of this authority to disclose Rule\n6(e) material, and to ensure careful consideration of the constitutional basis for\nany disclosure made outside the provisions of Rule 6(e), we recommend the adop\xc2\xad\ntion of procedures requiring consultation with, and approval by, the appropriate\nofficials (e.g., the Attorney General or the Deputy Attorney General) preceding\nany such disclosure.\nRICHARD L. SHIFFRIN\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n175\n\n\x0c'