Disclosure of Grand Jury Material to the Intelligence Community
| Decision Date | 14 August 1997 |
| Docket Number | 97-23 |
| Citation | 21 Op. O.L.C. 159 |
| Parties | Disclosure of Grand Jury Material to the Intelligence Community |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
Grand Jury material subject to the requirements of Rule 6(e) of the Federal Rules of Criminal Procedure may be disclosed to agencies in the Intelligence Community pursuant to Rule 6(e) insofar as necessary to assist government attorneys in performing their duties to enforce federal criminal law, but may not, under Rule 6(e), be used by the recipient agencies for other purposes, including intelligence purposes.
In circumstances where there is a compelling necessity for grand jury material to be made available to the President in furtherance of his constitutional responsibilities over foreign affairs and national defense, and where the President has authorized the provision of such material to the Intelligence Community, we believe that a court should and would authorize such disclosure outside the provisions of Rule 6(e), on the basis of Article II of the Constitution and separation of powers principles. Indeed, in such compelling circumstances, a constitutionally necessitated disclosure could properly be made by attorneys for the Government even without prior court approval.
MEMORANDUM OPINION FOR THE ACTING COUNSEL OFFICE OF INTELLIGENCE POLICY AND REVIEWThis responds to your request for our opinion concerning the permissibility of prosecutors in the Department of Justice disclosing grand jury information to agencies in the Intelligence Community ("IC") for certain official purposes.[1] In subsequent communications with your office, we have identified a number of more specific questions raised by your inquiry.
The permissibility of such disclosures will generally depend upon a number of factual considerations, particularly the specific nature of the information in question and the specific purposes for which Department attorneys would disclose it to IC officials. In addition, some materials considered by a grand jury (e.g., subpoenaed bank records) may not be subject to secrecy restrictions at ail because they do not constitute "matters occurring before the grand jury" within the meaning of Rule 6(e) of the Federal Rules of Criminal Procedure. See Fed. R. Crim. P. 6(e)(2). With respect to material that is subject to Rule 6(e), we conclude that the Rule clearly does not authorize disclosure for intelligence purposes and that material that is disclosed to the IC for purposes of assisting the enforcement of federal criminal law may not, under the express terms of the Rule, be used for any other purpose.[2]
In response to a specific question, we nevertheless conclude that in a situation contemplated by neither Rule 6(e) nor the prevailing case law — i.e., where there [ 160] is a compelling necessity for 6(e) material to be made available to the President in furtherance of his constitutional responsibilities over foreign affairs and national defense and where the President has authorized the provision of such material to the IC — we believe a court should and would authorize such disclosure outside the provisions of Rule 6(e), on the basis of Article II of the Constitution and separation of powers principles. Cf Disclosure of Grand Jury Matters to the President and Other Officials, 17 Op. O.L.C. 59, 65-69 (1993) ("1993 Opinion"). Indeed, in such compelling circumstances, a constitutionally necessitated disclosure could properly be made by attorneys for the Government even without prior court approval.
In any event, this constitutional authority should not be exercised as a matter of course, but rather only in extraordinary circumstances and with great care. For this reason, we recommend the adoption of procedures to ensure that the proper officials (e.g., the Attorney General or the Deputy Attorney General) are consulted before any constitutionally based disclosure is made.
Before turning to the specific questions presented, we address a number of preliminary matters that are important to the practical resolution of these questions.
Rule 6(e) of the Federal Rules of Criminal Procedure establishes a "General Rule of Secrecy" providing that certain persons, including attorneys for the Government, "shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules." Fed. R. Crim P. 6(e)(2); see United States v. John Doe, Inc. I, 481 U.S. 102, 107 (1987). Under this rule, no attorney for the Department of Justice may disclose "matters occurring before the grand jury" to any other person unless one of the rule's enumerated exceptions applies. The exceptions to the general rule of secrecy are set forth under subparagraph (3) of Rule 6(e). Two of those exceptions are relevant here and may be summarized as follows:
(1) Disclosure to such government personnel as are deemed necessary to assist an attorney for the government in the performance of his duty to enforce federal criminal law, see Fed. R. Crim. P. 6(e)(3)(A)(ii); and
(2) Disclosure directed by a court preliminarily to or in connection with a judicial proceeding, see Fed. R. Crim. P. 6(e)(3)(C)(i).
Unless a disclosure of 6(e) material to IC personnel can be authorized under one of those two provisions, it cannot be authorized within the framework of Rule 6(e).[3] [ 161]
The most likely basis for authorized disclosure of grand jury information to IC officials would be to provide assistance to prosecutors in their enforcement of federal criminal law pursuant to Rule 6(e)(3)(A)(ii). In such circumstances, the IC would be receiving the information on the basis of some connection to federal law enforcement activity. Although a survey of all IC agencies in this regard is not within the scope of this assessment, we note that the CIA, for example, is subject to specific statutory restrictions against law enforcement activity. That raises the preliminary question whether the CIA or its agents would be eligible to receive grand jury material under any construction of Rule 6(e)(3)(A)(ii).
In establishing the scope of the CIA's authority, the National Security Act ("NSA") specifies that "the Agency shall have no police, subpoena, or law enforcement powers or internal security functions." 50 U.S.C. §403-3(d)(1) (1994). The same law provides, on the other hand, that the Director of Central Intelligence ("DO") "shall be responsible for providing national intelligence" for the President and other executive branch department and agency heads, including the Attorney General. Id. § 403-3(a)(1).[4]
Your inquiry did not ask us to examine the various statutory restrictions on the domestic or law enforcement activities of the CIA and other IC agencies and we have refrained from doing so in this memorandum. We do not believe, however, that the restrictions imposed on the CIA under 50 U.S.C. §403-3(d)(1) are necessarily inconsistent with providing the kind of informational assistance to federal prosecutors authorized under Rule 6(e)(3)(A)(ii). Such assistance may be provided without exercising the kind of police, subpoena, law enforcement, or internal security powers or functions which are foreclosed to the CIA under the statutory restrictions. In providing such authorized assistance, however, CIA officials would remain subject to those statutory restrictions and would be required to limit themselves to activities (such as providing informational support) that do not in themselves constitute the exercise of law enforcement powers.
One provision of the NSA could arguably be construed not only to authorize, but even to require, Department of Justice attorneys to make certain national Segmentary material obtained by the grand jury See, eg.. United States v. Interstate Dress Carriers. Inc , 280 F.2d 52, 54 (2d Cir 1960) () [ 162] rity-related grand jury information available to the Director of Central Intelligence. Section 104(a) of the NSA provides as follows:
To the extent recommended by the National Security Council and approved by the President, the Director of Central Intelligence shall have access to all intelligence related to the national security which is collected by any department, agency, or other entity of the United States.
50 U.S.C. §403-4(a) (1994). Whether this provision may actually require disclosure of some 6(e) material to the DCI depends on several distinct considerations: (1) to what extent have the NSC and the President mandated the DCI access rights authorized by the statute; (2) may grand jury information covered by Rule 6(e) constitute "intelligence . . . collected by any department" within the meaning of the statute; and (3) if the NSA's access requirements can be construed to extend to grand jury information, do those requirements supersede the restrictions of Rule 6(e)?
1. Implementation of Statutory Authorization.
The general authorization of section 104(a) is implemented by Executive Order No. 12333. Exec. Order No. 12333, 3 C.F.R. 200 (1982). Section 1.6(a) of the Executive Order provides:
The heads of all Executive Branch departments and agencies shall, in accordance with law and relevant procedures approved by the Attorney General under this Order, give the Director of Central Intelligence access to all information relevant to the national intelligence needs of the United...
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