       Legislation Providing for Court-Ordered Disclosure
      of Grand Jury Materials to Congressional Committees

Proposed legislation authorizing personnel of com m ittees of Congress to obtain court-ordered
   release o f m atters occurring before a grand jury would violate separation of powers principles
   by encroaching upon the Executive’s control o f prosecutorial matters and would entail a
   m ajor departure from longstanding practices and traditions o f grand jury secrecy.

Because the Executive alone is entrusted with the power to enforce the laws, the Executive alone
  should m ake the day-to-day decisions as to whether the release o f law enforcement materials
  to C ongress would interfere with its prosecutorial discretion.

Independent access by Congress to grand jury m aterials without the consent o f the Department of
   Justice would seriously endanger grand jury secrecy and thereby weaken the grand jury as an
   institution.

Access to grand jury m aterials by other Executive Branch agencies should be limited to cases
  w here access is needed for law enforcem ent purposes and should require the approval of the
  Justice D epartm ent.

                                                                                        September 24, 1985

 M   em orandum          O    p in io n fo r t h e   A c t in g A    s s is t a n t   A ttorney G eneral,
            O f f ic e   of   L e g is l a t iv e   and   I n t e r g o v e r n m e n t a l A f f a ir s


   You have requested the comments of this office on S. 1562, introduced by
Senator Grassley, which would amend the False Claims Act. The portion of the
bill of interest to this office is § 5, which would amend Rule 6(e) of the Federal
Rules o f Criminal Procedure. First, the amendment would permit automatic
disclosure o f “matters occurring before a grand jury” to Justice Department
attorneys for civil purposes without a court order.1 Second, the amendment
would expand the types of proceedings for which other executive departments
and agencies may gain access to Rule 6(e) material to include not only “judicial
proceedings,” but also other matters within their jurisdiction, such as adjudica­
tive and administrative proceedings. Significantly, the bill would allow these
departments and agencies to seek disclosure without the approval of the De­
partment o f Justice. Finally, the bill would also allow personnel of any commit­
tee of Congress directly to obtain court-authorized release of “matters occur­
ring before the grand jury” upon a showing of “substantial need.”2 At present,
Congress has no independent ability to petition the judiciary for release of
“matters occurring before the grand jury.”

  1 The phrase “ m atters occurring before a grand ju ry ” has been broadly defined by the courts to include not
only m aterials presented to a grand jury b u t also large categories o f law enforcem ent files that may relate to a
grand ju ry . See infra Part III. In this m em orandum we w ill som etim es refer to “m atters occurring before a
grand ju ry ” as “ Rule 6(e) m aterial ”
  2The A d m in istratio n ’s proposed am endm ents to Rule 6(e) would allow federal agencies with the consent o f
the D epartm ent o f Justice to obtain court-authonzed release o f “ m atters occurring before the grand jury”
upon a show ing o f “substantial need.” T h e A dm inistration's am endm ent makes no mention of independent
congressional access to R ule 6(e) material.

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   The Office of Legal Counsel strongly opposes any provision that would
permit Congress independently to petition the courts for Rule 6(e) material. By
giving Congress an independent right of access to large portions of law en­
forcement files through the judiciary, the amendment would codify legislative
encroachment into the Executive’s exclusive authority to enforce the law.
Because it is the fundamental premise of the separation of powers that the
Executive alone is entrusted with the enforcement of the laws, the Executive
alone should make the day-to-day decisions as to whether the release of law
enforcement materials to Congress, a branch of government constitutionally
forbidden to prosecute individual cases, would interfere with the Executive’s
prosecutorial discretion.
   Moreover, this amendment would represent a radical departure from the long
tradition of grand jury secrecy. This secrecy has evolved to protect the proper
functioning of the grand jury and has aided the Executive Branch in the fair
execution of the laws. Independent access to grand jury materials by Congress
without the consent of the Department of Justice would seriously endanger the
secrecy on which participants in the grand jury process have come to rely, and
therefore be extremely injurious to the grand jury as an institution.
   The amendment would also have a serious impact on both the frequency and
the method of resolution of disputes over Executive privilege. By arguably
providing Congress with the standing to obtain a ready judicial forum for these
disputes, the proposed amendment undoubtedly would multiply the number of
confrontations over executive privilege and encourage judicial resolution of politi­
cal disputes that have in the past been handled by compromise and negotiation. As a
consequence, the President would be handing over his privilege, the scope of which
he has largely determined for himself, to the judiciary for its review. The nature and
scope of executive privilege might thereby be profoundly changed.
   Finally, with respect to access to grand jury materials by other executive
departments and agencies, we believe that access should be limited to law
enforcement purposes and that such access must be obtained with the approval
and representation of this Department so that the integrity of the Department’s
criminal investigations and prosecutions can be protected from untimely disclosure.

                 I. The Proposed Amendment is Inconsistent
                        with the Separation of Powers

   In our view, the Executive Branch must be able to control congressional
access to law enforcement documents to prevent legislative pressures from
impermissibly influencing its prosecutorial decisions. The Executive Branch’s
duty to protect its prosecutorial discretion from congressional interference
derives ultimately from Article II, which places the power to enforce the laws
squarely in the Executive Branch o f the federal government. See Buckley v.
Valeo, 424 U.S. 1, 119-20 (1976) (per curiam). The Executive therefore has
the exclusive authority to enforce the laws adopted by Congress, and neither
the Judicial nor Legislative Branches may directly interfere with the prosecutorial
                                         87
discretion o f the Executive by directing the Executive to prosecute particular
individuals. United States v. Nixon, 418 U.S. 683, 693 (1974); Confiscation
Cases, 74 U.S. (7 W all.) 454, 457 (1869).
   Indeed one o f the fundamental rationales for the “separation of powers” is
that the power to enact laws and the power to execute laws must be separated to
forestall tyranny. As James Madison stated in The Federalist No. 47:
           The reasons on which M ontesquieu grounds his maxim [that the
           legislative, executive and judicial departments should be sepa­
           rate and distinct] are a further demonstration of his meaning.
           “When the legislative and executive powers are united in the
           same person or body,” says he, “there can be no liberty, because
           apprehensions may arise lest the same monarch or senate should
           enact tyrannical laws to execute them in a tyrannical manner.”
The F ederalist No. 47, at 303 (J. Madison) (C. Rossiter ed. 1961). For this
reason, the Constitution specifically excludes Congress from the decision
whether to prosecute particular cases. U.S. Const, art. I, § 9, cl. 3. A legislative
effort to require prosecution of specific individuals would seem to be inconsis­
tent with many o f the policies upon which the Constitution’s prohibition
against bills o f attainder was based. See Selective Serv. Sys. v. Minnesota
P ublic Interest Research Group, 468 U.S. 841,854-55 (1984); United States v.
Brown, 381 U.S. 437, 447 (1965); United States v. Lovett, 328 U.S. 303, 315
(1946). The constitutional role o f Congress is to adopt general legislation that
will be applied and implemented by the Executive Branch: “It is the peculiar
province o f the legislature to prescribe general rules for the government of
society; the application of those rules to individuals in society would seem to
be the duty o f other departments.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87,136
(1810). The Framers intended that Congress not be involved in such prosecutorial
decisions or in questions regarding the criminal liability of specific individuals.
As the Supreme Court stated in Lovett: “Those who wrote our Constitution well
knew the danger inherent in special legislative acts which take away the life,
liberty, or property o f particular named persons, because the legislature thinks
them guilty of conduct which deserves punishment.” 328 U.S. at 317.3
   M oreover, the Department o f Justice has an obligation flowing from the Due
Process Clause to ensure that the fairness of the decisionmaking with respect to
its prosecutorial function is not compromised by excessive congressional pres­
sures, and that the due process rights of those under investigation are not
violated. See P illsbury v. FTC , 354 F.2d 952 (5th Cir. 1966). Just as an
agency’s ability to fulfill its statutory obligation may be impermissibly strained
by pressure from the Legislative Branch during the administrative decision­
making process, D.C. F ed’n o f C ivic A s s ’ns v. Volpe, 459 F.2d 1231, 1246—47
(D.C. Cir.), cert, denied, 405 U.S. 1030 (1972), excessive interference with the
  3 A rticle II's specific grant o f exclusive authority to the Executive to enforce the laws and Article I's
specific p rohibition against legislative prosecution provide a principled basis for allow ing administrative
agencies, w hich are part o f the Executive B ranch, to obtain court-authorized release o f Rule 6(e) material for
law enforcem ent purposes, w hile prohibiting Congress from doing so.
exercise of prosecutorial discretion can substantially prejudice the rights of persons
under investigation. Persons who ultimately are not prosecuted may be subjected to
prejudicial publicity without being given an opportunity to cleanse themselves of
the stain of unfounded allegations. Moreover, the injection of impermissible factors,
such as political pressures, into the decision whether to initiate prosecution not only
endangers the rights of the accused, but also impairs the professional obligation of
government attorneys to the integrity of the judicial process and, ultimately, the
obligation of the Executive faithfully to execute the laws.
   In addition, potential targets of enforcement actions are entitled to protection
from widespread premature disclosure of investigative information. Because
Congress and the Department of Justice are both part of the United States
Government that prosecutes a criminal defendant, there is “no difference
between prejudicial publicity instigated by the United States through its execu­
tive arm and prejudicial publicity instigated by the United States through its
legislative arm.” Delaney v. United States, 199 F.2d 107, 114 (1st Cir. 1952).
Therefore, pretrial publicity originating in Congress can be attributed to the
government as a whole and can result in postponement, modification, or even
termination of the prosecution on due process grounds. Id. The discretion of
prosecutive officials to conduct their investigations and trials in the manner
they deem to be the most efficient and constructive can be infringed by
precipitous disclosures which prompt a court to impose remedial procedural
obligations upon the Government. To be sure, these separation o f powers and
due process concerns are present to a greater degree when Congress is seeking
files of an open investigation than when Congress is seeking information about
an investigation that is closed. It has been the traditional position of this
Department that intolerable practical restraints on discretion may result and the
effectiveness and fairness of investigations may be impaired if Congress be­
comes, in a sense, a partner in an ongoing investigation. If a congressional
committee is fully apprised of all details o f an investigation as it proceeds,
there is a substantial chance that congressional pressures will influence the
course of the investigation.
   Separation of powers and due process concerns are also present, however,
when Congress is seeking investigative files of closed investigations. Indeed,
because one of the reasons Congress sometimes seeks files of closed investiga­
tions is to put pressure on the Executive to reopen an investigation, the same
concerns outlined above may often attend requests for closed files. Moreover,
the possibility that persons who ultimately are not prosecuted may be subjected
to prejudicial publicity is as great from congressional inquiry into closed as
into open investigations. For these reasons, the Office of Legal Counsel op­
poses any compromise with Congress on an amendment to Rule 6(e) whereby
Congress would be given access to Rule 6(e) material from closed investiga­
tions, especially if that access is independent of executive control. Because the
Executive is uniquely charged with enforcing the law, it should retain the
power in the first instance to decide what law enforcement materials to release
to Congress after its independent evaluation of the separation of powers and
                                          89
due process concerns described above. In our view, it would be a great mistake
to codify the rather artificial distinction between closed and open investiga­
tions, when both kinds of investigations implicate concerns of constitutional
m agnitude that are best evaluated on a case-by-case basis.

              II. Tib® Ammeiidnneimtt Breaches Grand JJery Secrecy
                     and Thus Impairs Proper Enforcement
                          of the ILaw by the Executive

    Due process concerns were at the heart o f the historical origin of the grand
jury. Indeed, the concept of grand jury secrecy originated as a means of
preventing the government from bringing undue pressure on the grand ju ry ’s
decision. In the celebrated trial of the Earl of Shaftesbury in 1681, the grand
jurors insisted on hearing the witnesses to the charge of treason in secret
despite the demands o f the Crown that they be heard in public.
    G rand ju ry secrecy is still ju stifie d by the need to protect the w it­
n esses and grand ju ro rs from undue pressures. T oday, how ever, it is not
d isclo su re to the prosecution but disclosure to the public that is seen as
d e stru c tiv e o f the effective functio n in g o f the grand ju ry . Indeed, se­
crecy is now th o u g h t to be o f im portance to the E xecutive in obtaining
in d ictm en ts, b ecau se jurors m ay be apprehensive that th eir votes to
in d ict m ay be disclosed. D o u g la s O il C o. v. P e tr o l S to p s N o rth w est,
441 U .S. 211, 219 (1979). S ecrecy is also im portant to the E xecutive for
p re p ara tio n o f its case, because it fa cilitates free and open discussion by
w itn esses and com plainants. Id. M oreover, secrecy facilitates the cap­
tu re o f an accu sed w ho is in fa c t indicted and prevents the accused from
obtaining collusive testimony in the hope of blocking the indictment. Id.
Finally, secrecy protects the accused who is charged by the complaint before
the grand jury but is exonerated by the grand jury’s refusal to indict. Id.
    Independent access by Congress, or even by other agencies, to grand jury
material without the concurrence of the prosecution would obviously endanger
the cloak o f secrecy that has historically been seen as essential to the function­
ing o f the grand jury and therefore to the effective enforcement of the criminal
law. Because the Department o f Justice is charged with preparing federal
criminal cases, it is in a far better position than Congress, other executive
agencies, or even the judiciary to determine how essential secrecy is to the
preparation o f a particular case. Moreover, the Department of Justice has the
preeminent institutional interest in preserving secrecy because the confidence
o f future participants in the grand jury process in the secrecy of the proceedings
is necessary for continued proper execution o f the laws. Therefore, this Office
opposes the proposed amendment’s grant o f independent access, not only to
Congress but also to other agencies, which cannot be presumed to have the
perspective or the institutional interest to give proper weight to the need for
grand jury secrecy. Even other Executive agencies should gain access to Rule
6(e) material only with the consent of the Department of Justice.
                                           90
      III. The Amendment Will Lead to More Disputes Over Executive
     Privilege and Will Change the Method of Resolving These Disputes

  The policy of the Executive Branch throughout this Nation’s history has
been generally to decline to provide committees of Congress with access to, or
copies of, law enforcement files except in extraordinary circumstances.4 Attor­
ney General Robert Jackson articulated this position over forty years ago:
          It is the position of this Department, restated now with the
          approval of and at the direction of the President, that all investi­
          gative reports are confidential documents of the executive de­
          partment of the Government, to aid in the duty laid upon the
          President by the Constitution to “take care that the laws be
          faithfully executed,” and that congressional or public access to
          them would not be in the public interest.
             Disclosure of the reports could not do otherwise than seri­
          ously prejudice law enforcement. Counsel for a defendant or
          prospective defendant, could have no greater help than to know
          how much or how little information the Government has, and
          what witnesses or sources of information it can rely upon. This
          is exactly what these reports are intended to contain.
40 Op. Att’y Gen. 4 5 ,4 6 (1941). This policy with respect to Executive Branch
investigations was first expressed by President Washington and has been
reaffirmed by or on behalf of most of our Presidents, including Presidents
Jefferson, Jackson, Lincoln, Theodore Roosevelt, Franklin Roosevelt, and
Eisenhower. No President to our knowledge has departed from this position
affirming the confidentiality of law enforcement files.5
   The proposed amendment is likely to multiply the number of disputes over
executive privilege with respect to law enforcement files and radically change
their method of resolution. Although it has been argued that the issues of
executive privilege may be separated from the issue of congressional access to
Rule 6(e) material, the proposed amendment, as presently drafted, is unlikely to
permit such separation. The term “matters occurring before a grand jury” has
been interpreted broadly to include any documents that reveal any matter
occurring before a grand jury. Therefore, it is generally recognized that the
  4 The justifications for invoking executive privilege with respect to investigative files are rooted in the
principles o f separation o f pow ers and due process outlined in Part 1 above. An additional reason for
w ithholding investigative files is that effective and candid deliberations am ong the num erous advisers w ho
participate in a case in various roles and at various stages o f a prosecution w ould be rendered im possible i f the
confidential deliberative com m unications were held open to public scrutiny. Cf. United States v. N ixon, 418
U.S. 683, 708 (1974). The deliberative m em oranda that constitute a significant portion o f investigative files
are an intnnsic part o f the prosecutorial process. Em ployees o f the Department would be reluctant to express
their personal, unofficial views if those views could be obtained by congressional request. This justification
for w ithholding may apply to files o f both open and closed investigations
  5 Some w ithholding o f Executive Branch files has been accom plished through the President’s form al
invocation o f executive privilege. More often negotiations have been undertaken by executive officers to
protect the integrity o f their files through com m unication o f their concerns to C ongress before resorting to a
formal Presidential assertion o f the privilege.

                                                        91
 phrase includes any material that would reveal the strategy or direction of the
 grand jury investigation, the nature of the evidence produced before the grand
jury, or the views o f the grand ju ry ’s deliberations expressed by its members.
 See, e.g., Fund f o r Constitutional G ov't v. N ational Archives, 656 F.2d 856,
 870 (D.C. Cir. 1981); United S tates v. H ughes, 429 F.2d 1243, 1294 (10th Cir.
 1970). The broad definition means that Rule 6(e) material will substantially
overlap with the kind o f law enforcement files that the Executive has tradition­
ally attempted to withhold.
    As the amendment is currently drafted, Congress may obtain a court order
directing the release of all Rule 6(e) material. There is no provision that excepts
material over which the Executive has a claim of privilege from the potential
 scope of the order. Nor is there any provision that even requires that the
Executive be provided with notice that Congress is seeking such release.
Assuming that a notice provision were added to the amendment, the Executive
would no doubt have the opportunity to assert executive privilege in court in
order to prevent Congress from obtaining sensitive documents. Although the
possibility of asserting executive privilege would be thereby preserved, the
m ethod o f resolving disputes over its assertion would be transformed. Instead
o f arguing and negotiating with Congress on a case-by-case basis on the scope
o f the privilege, the President and his officers would in effect be handing over
his privilege to the courts for their frequent adjudication.
    The effects of this change should not be underestimated. As a practical
matter, the provision o f a ready judicial forum for resolution of disputes over
executive privilege would undoubtedly multiply the number of potential con­
frontations. In the past, Congress has had to engage in long and hard negotia­
tions for access to documents over which there was a potential claim of
executive privilege. Such negotiations have entailed both the expenditure of
time and political capital. Because access to the judicial forum provided for in
the amendment would furnish a relatively painless and rapid means of resolv­
ing these disputes, it would likely lead to more congressional challenges to the
withholding of investigative documents on executive privilege grounds.
    M oreover, the nature of executive privilege itself may be transformed by
changing the forum in which disputes over executive privilege are resolved.
The President would in effect be sharing his privilege with the judiciary.6 The
judicial forum would give the judiciary the opportunity to frame principles to
govern the President’s assertion o f executive privilege against a congressional
dem and for information.7 In o u r view, constant judicial oversight is certain
   6 B ecause disputes o v er executive privilege between C ongress and the Executive have been resolved in an
ad hoc fashion in the past, courts have left th e perm issible scope o f such assertions alm ost totally undefined.
In only one case has a court clearly adjudicated the legitim acy o f the assertion of executive privilege against
a co n g ressio n al dem and fo r information. S e e Senate S elect Comm, on Presidential Campaign A ctivities v.
N ix o n , 498 F.2d 725 (D .C. C ir. 1974) (en banc).
   7 A ssum ing th at a dispute o v er executive privilege betw een the Executive and C ongress were properly
before a court, it seem s unlikely that th e court would decline to hear it on the grounds that it was a
nonjusticiable political question. In Senate Select C om m ittee, the court declined to rule that the dispute
betw een the W atergate C om m ittee and P resident Nixon w as a nonjusticiable political question. M oreover, it
                                                       Continued

                                                        92
eventually to erode the President’s control over his privilege. Nor does such an
expanded judicial role comport well with the functioning of democratic gov­
ernment as a whole. The assertion of executive privilege has always been a
practical undertaking that is not governed by fixed rules but by considerations
of prudence that take into account political factors such as public reaction. In
this, as in other areas of dispute between the Legislature and the Executive,
more can be constructively accomplished by accommodation between the
elected branches of government than by declarations of principle from a
judiciary that is necessarily remote from the political exigencies of the situation.
   Because the President holds his power of executive privilege as a trustee for
his successors, we believe that it would be a violation of that trust to approve a
provision that would have the effect of making the judiciary a frequent partner
in determination of the scope of the privilege, even if under present political
circumstances such a partnership would seem advantageous. For this reason,
the Office of Legal Counsel is constrained to oppose any provision that
purports to provide Congress with standing to obtain Rule 6(e) material and
thereby enjoy the opportunity to gain ready judicial resolution of executive
privilege questions. We would therefore oppose a compromise that would
permit committees of Congress directly to obtain court-authorized release of
 “matters occurring before the grand jury” upon a showing of “particularized
need.” The higher showing does not in our view rectify the proposed
amendment’s inconsistency with the separation of powers or its potential to
expand the power of the judiciary over the exercise of executive privilege.

                                               Conclusion

   For the foregoing reasons, the Office of Legal Counsel urges the Department
to oppose strongly the provisions of S. 1562 that afford Congress a mechanism
for obtaining access to grand jury materials. We believe that support for these
provisions, even if revised to limit access to closed cases, would adversely
affect fundamental notions of the separation of powers.

                                                                   C harles      J. C o o p e r
                                                         Acting Assistant Attorney General
                                                              Office o f Legal Counsel


   7 (. . . continued)
is also unlikely that a court w ould at present conclude that C ongress lacked standing to bring an action based
on a dispute w ith the Executive over its request for law enforcem ent docum ents. The issue o f w hether
C ongress has standing to bring suit to protect its governm ental powers is sharply disputed at present.
Com pare Barnes v. Kline, 759 F.2d 21, 26 (D.C. Cir. 1985) (holding that both houses o f C ongress and
individual m embers o f Congress had standing to challenge a pocket veto on the grounds that the veto
im properly nullified their votes) with id. at 41 (Bork, J., dissenting) (stating that neither the H ouses of
C ongress nor individual m em bers o f C ongress have standing to challenge the pocket veto). N evertheless, a
court m ight well hold that the case for congressional standing is strengthened by the enactm ent o f this
am endm ent. See Sierra Club v. M orton, 405 U.S. 727, 732 n.3 (1972) (“The question w hether the litigant is a
proper party to request adjudication . . . is w ithin the pow er o f C ongress to determine/*).

                                                      93
