Disclosure of Grand Jury Matters to the President and Other Officials

• Decision Date: 21 September 1993
• Docket Number: 93-9
• Citation: 17 Op. O.L.C. 59
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Disclosure of Grand Jury Matters to the President and Other Officials

17 Op. O.L.C. 59

Disclosure of Grand Jury Matters to the President and Other Officials

No. 93-9

United States Department of Justice

September 21, 1993

WALTER DELLINGER, Acting Assistant Attorney General Office of Legal Counsel

Disclosure of Grand Jury Matters to the President and Other Officials

The Attorney General may disclose grand jury material covered by Rule 6(e) of the Federal Rules of Criminal Procedure to the President and members of the National Security Council where such disclosure is for the purpose of assisting the Attorney General in her enforcement of federal criminal law. Although under those circumstances such disclosure may be made without prior judicial approval, the names of those receiving the grand jury material must be submitted to the court that impaneled the grand jury in question

There are also circumstances where the President's constitutional responsibilities may provide justification for the Attorney General to disclose grand jury matters to the President independent of the provisions of Rule 6(e). Such circumstances might arise, for example, where the Attorney General learns through grand jury proceedings of a grave threat of terrorism, implicating the President's responsibilities under Article II of the Constitution.

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

This memorandum responds to your request for our legal opinion on the question of whether, and under what circumstances or conditions, the Attorney General may disclose grand jury material covered by Rule 6(e) of the Federal Rules of Criminal Procedure in briefings presented to the President and other members of the National Security Council ("NSC").

We conclude that the Attorney General may disclose Rule 6(e) materials to the President or to other NSC members where such disclosure is for the purpose of assisting the Attorney General in her enforcement of federal criminal law. Disclosures satisfying this "criminal law enforcement purpose" standard may be made without prior court approval or a showing of particularized need, but the names of those who received the information must be supplied to the district court that empaneled the grand jury. Fed. R. Crim P. 6(e)(3)(A), (B). Subject to obtaining prior court approval based on a showing of particularized need, the Attorney General may also make such disclosures "[for] uses related fairly directly to some identifiable litigation pending or anticipated." United States v Baggot, 463 U.S. 476, 480 (1983); see also Fed R. Crim. P. 6(e)(3)(C)(i). These court-approved-disclosures may be made for the purpose of gaining assistance in civil as well as criminal litigation. We do not believe that any of the 6(e) exceptions would apply to disclosures made to the President or NSC officials for general policymaking purposes as opposed to obtaining the assistance of those officials for law enforcement purposes. [ 60]

We also believe, however, that the President's ultimate responsibility to supervise the executive branch, and in particular his duty to "take Care that the Laws be faithfully executed, " U.S. Const, art. II, § 3, may sometimes provide a constitutional justification for the Attorney General to disclose grand jury matters to the President independent of the Rule 6(e) exceptions. Disclosures of this nature would be supported by basic separation of powers principles where, for instance, the President has a special need for such information in order to exercise necessary supervision over the Attorney General's law enforcement functions in matters of unusual national significance. Inasmuch as the courts have not directly addressed the extent of the President's Article II power in this particular context, any disclosures of grand jury material made on the basis of that power alone should be undertaken with caution. Judicial sanction for such disclosures might be obtained by invoking the court's inherent supervisory authority to approve disclosures of grand jury materials not otherwise covered by one of the Rule 6(e) exceptions in appropriate circumstances.

I. Disclosures under Rule 6(e)

Rule 6(e)(2) of the Federal Rules of Criminal Procedure establishes a "General Rule of Secrecy" providing that certain persons, including attorneys for the Government^[1], "shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules." See United States v. John Doe, Inc. I, 481 U.S. 102, 107 (1987). Under this rule, no attorney for the Department of Justice may disclose "matters occurring before the grand jury" to any other person, unless one of the rule's enumerated exceptions applies. The specified exceptions are set forth under subparagraph (3) of Rule 6(e) and may be summarized as follows:

(1) Disclosure to an attorney for the government for use in the performance of that attorney's duties. (Exception (A)(i));

(2) Disclosure to such government personnel as are deemed necessary to assist an attorney for the government in the performance of his duty to enforce federal criminal law. (Exception (A)(ii));

(3) Disclosure directed by a court preliminary to or in connection with a judicial proceeding. (Exception (C)(i));, (4) Disclosure at the request of a defendant and approved by a court "upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." (Exception (C)(ii));

(5) Disclosures made by an attorney for the government to another federal grand jury. (Exception (C)(iii)); and

(6) Disclosures to state or local law enforcement officials permitted by the court at the request of any attorney for the government for purposes of aiding prosecution [ 61] of violations of state or local law that may be brought forth before the grand jury. (Exception (C)(iv)).

A. Subsection (A): Self-executing Exceptions

Rule 6(e)(3)(A) sets forth the exceptions to nondisclosure of grand jury matters which may be exercised without prior judicial approval or a showing of particularized need. It provides as follows:

(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to -”

(i) an attorney for the government for use in the performance of such attorney's duty; and

(ii) such government personnel (including personnel of a state or subdivision of a state) as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law.

Id. (emphasis added).

The (A)(i) exception clearly would not apply to disclosures to the President or members of the NSC.^[2] However, the (A)(n) "government personnel" exception could apply to such disclosures in circumstances where they are made for the purpose of obtaining the assistance of the President or NSC members in enforcing federal criminal law.

Although the (A)(ii) exception was primarily designed to allow disclosures to lesser-ranking officials or agents assisting a prosecutor in a particular case, there is no persuasive reason why the Attorney General cannot make such disclosures to the President or to other senior Administration officials (who do constitute "government personnel") for purposes of obtaining their assistance in carrying out federal criminal law enforcement responsibilities. One plausible example of such a situation might be the grand jury investigating the terrorist attack on the World Trade Center. In such a case, it is possible that the Attorney General's direction and supervision of the case could be facilitated by discussing developments (including developments brought forth before the grand jury) with the President and NSC members such as the Secretary of State. However, disclosure of such [ 62] grand jury materials could not be made under the (A)(ii) exception for mere purposes of general policymaking.

While we find no case authority specifically addressing (A)(ii) disclosures to the President or senior government officials at the Cabinet level, we believe the language of the subsection, its legislative history, and judicial opinions interpreting it are compatible with such disclosures under the limitations noted.

The text of the (A)(ii) exception on its face allows for disclosures to the President or to NSC officials in circumstances where the Attorney General (in her capacity as "an attorney for the government") deems such disclosures necessary to obtain the assistance of such officials in the performance of her duties to enforce federal criminal law. In this regard, there is no persuasive reason why the term "government personnel" as used in subparagraph (A)(ii) should be narrowly construed to exclude the President or Cabinet-level officials.

The (A)(ii) "government personnel" exception was enacted in 1977. Act of July 30, 1977, Pub. L. No. 95-78, § 2(a), 91 Stat. 319, 319. The Senate Report on the 1977 amendment explained its origins and purpose as follows:

The Rule as redrafted is designed to accommodate the belief . . . that Federal prosecutors should be able, without the time-consuming requirement of prior judicial interposition, to make such disclosures of grand jury information to other government personnel as they deem necessary to facilitate the performance of their duties relating to criminal law enforcement.

S. Rep. No. 95-354, at 8 (1977), reprinted in 1977 U.S.C.C.A.N. 527, 531 ("1977 Senate Report") (emphasis added). The Report's use of the permissive phrase "as they deem necessary" strongly supports the view that Congress intended federal prosecutors to have broad leeway in deciding what government personnel should have access to grand jury materials for purposes of facilitating enforcement functions.

Assessing this...