Disclosure of Grand Jury Matters to the President and Other Officials

Disclosure of Grand Jury Matters to the President and
Other Officials

T h e A tto rn e y G en eral m ay d isclo se g ra n d ju ry m aterial c o v e re d b y R ule 6 (e ) o f the F e d e ra l R u le s o f
C rim in a l P ro ce d u re to th e P resid e n t an d m e m b e rs o f th e N a tio n a l S e c u rity C o u n cil w h e re su ch d is ­
clo su re is fo r the p u rp o se o f a ssistin g the A tto rn e y G e n e ra l in h e r e n fo rc e m e n t o f fe d e ra l c rim in a l
law . A lth o u g h u n d e r th o se c irc u m sta n c e s su ch d is c lo su re m ay be m a d e w ith o u t p rio r ju d ic ia l a p ­
p ro v a l, th e n am es o f th o se re c eiv in g the g ra n d ju ry m a te ria l m u st b e s u b m itte d to the c o u rt th a t im ­
p a n e le d th e gran d j u ry in q u e stio n

T h e re a re a ls o c irc u m sta n c e s w h ere th e P re s id e n t’s c o n stitu tio n a l re sp o n sib ilitie s m ay p ro v id e ju s tif i­
c atio n fo r th e A tto rn e y G e n eral to d isc lo se g ra n d ju ry m a tte rs to the P resid e n t in d e p e n d e n t o f the
p ro v is io n s o f R ule 6 (e). S u ch c irc u m sta n c e s m ig h t arise, fo r e x a m p le , w h e re the A tto rn e y G e n eral
le a rn s th ro u g h gran d ju ry p ro c e ed in g s o f a g ra v e th reat o f te rro rism , im p lic a tin g the P re s id e n t’s re ­
s p o n sib ilitie s un d er A rtic le II o f th e C o n stitu tio n .

Septem ber 21, 1993

M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l

This memorandum responds to your request for our legal opinion on the ques­
tion 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) m aterials 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. Disclo­
sures satisfying this “criminal law enforcement purpose” standard may be made
without prior court approval or a showing o f particularized need, but the names of
those who received the information must be supplied to the district court that em­
paneled 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 G en­
eral 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 o f those officials for law enforce­
ment purposes.

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W e also believe, however, that the President’s ultimate responsibility to super­
vise 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 constitu­
tional justification for the Attorney General to disclose grand jury matters to the
President independent o f 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 G eneral’s law enforcement functions in matters of
unusual national significance. Inasmuch as the courts have not directly addressed
the extent o f the President’s Article II power in this particular context, any disclo­
sures o f grand jury material made on the basis of that power alone should be un­
dertaken with caution. Judicial sanction for such disclosures might be obtained by
invoking the court’s inherent supervisory authority to approve disclosures o f grand
jury m aterials not otherw ise covered by one of the Rule 6(e) exceptions in appro­
priate circum stances.

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 Gov­
ernm ent1, “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 ju ry ” to any other person, unless
one o f the rule’s enum erated exceptions applies. The specified exceptions are set
forth under subparagraph (3) of Rule 6(e) and may be summarized as follows:
(1) D isclosure to an attorney for the government for use in the performance of
that attorney’s duties. (Exception (A)(i));
(2) D isclosure 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) D isclosure directed by a court preliminary to or in connection with a judicial
proceeding. (Exception (C)(i));
, (4) D isclosure at the request o f 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 ju ry .” (Exception (C)(ii));
(5) D isclosures made by an attorney for the government to another federal grand
jury. (Exception (C)(iii)); and
(6) D isclosures to state or local law enforcem ent officials permitted by the court
at the request o f any attorney for the governm ent for purposes of aiding prosecu­

1 For p u rp o ses o f R ule 6 (e), the Attorney G eneral is an “attorney for the governm ent ” Fed R C n m P.
54(c); see U n ite d S ta te s v B a tes, 627 F.2d 3 4 9 , 351 (D C . C ir. 1980).

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tion 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 particular­
ized need. It provides as follows:

(A) Disclosure otherwise prohibited by this rule of matters oc­
curring 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 o f a state) as are deemed necessary by an attorney for
the government to assist an attorney fo r the government in the p er­
formance o f 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 pur­
pose 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 o f obtaining their assistance in carrying out
federal criminal law enforcement responsibilities. One plausible example o f such a
situation might be the grand jury investigating the terrorist attack on the W orld
Trade Center. In such a case, it is possible that the Attorney G eneral’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 o f State. However, disclosure of such

2 A lthough the President and some m em bers o f the N SC are attorneys, they are not ’‘attorneys for the
g overnm ent” in the sense in w hich that term is used in R ule 6(e)

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grand jury m aterials could not be m ade under the (A)(ii) exception for mere pur­
poses o f general policymaking.
W hile we find no case authority specifically addressing (A)(ii) disclosures to the
President or senior government officials at the Cabinet level, we believe the lan­
guage o f the subsection, its legislative history, and judicial opinions interpreting it
are com patible with such disclosures under the limitations noted.
The text of the (A)(ii) exception on its face allows for disclosures to the Presi­
dent or to NSC officials in circumstances where the Attorney General (in her ca­
pacity as “an attorney for the government”) deem s 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
“governm ent personnel” as used in subparagraph (A)(ii) should be narrowly con­
strued to exclude the President or C abinet-level officials.
The (A)(ii) “governm ent 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 am endm ent 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
requirem ent of prior judicial interposition, to make such disclosures
o f grand jury information to other government personnel as they
deem necessary to facilitate the performance o f 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 R eport”) (em phasis added). The R eport’s use o f 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 o f facilitating enforcement func­
tions.
Assessing this legislative history of the (A)(ii) exception in In re Perlin, 589
F.2d 260 (7th Cir. 1978), the Seventh Circuit stated:

[T]he history o f the am endm ents of rule 6 ( e ) . . . clearly indicates
the continuing Congressional support for inter-agency cooperation
and the active participation of agency personnel, including agency
attorneys, in grand jury proceedings.

Id. at 267.
The Supreme C o u rt’s opinion in United States v. Sells Engineering, Inc., 463
U.S. 418 (1983), provides further insight regarding the intended scope of the
(A )(ii) exception. Sells held that attorneys in the Civil Division of the Department

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of Justice could not obtain automatic direct disclosure of grand jury materials from
Department prosecutors under the (A)(i) exception where the purpose of the dis­
closure was for use in civil suits as opposed to criminal law enforcement. Under
those circumstances, the Court held that the Civil Division attorneys must instead
apply for court-approved disclosure under the (C)(i) exception applicable to m at­
ters related to both civil and criminal judicial proceedings. In the course of its
opinion, however, the Court emphasized the sharp distinction between the auto­
matic subsection (A) exceptions applicable to criminal law enforcement and the
more restrictive, court-approved subsection (C) exceptions applicable in the civil
context. Referring to materials in the 1977 Senate Report, quoted above, the Court
said that they

reflectf] the distinction the Senate Committee had in mind: “Federal
prosecutors ” are given a free hand concerning use o f grand jury
materials, a t least pursuant to their “duties relating to criminal law
enforcement"-, but disclosure of “grand jury-developed evidence for
civil law enforcement purposes” requires a (C)(i) court order.

Id. at 441-42 (emphasis added).
Other opinions also suggest a relatively expansive interpretation of the
“government personnel” exemption. In United States v. Cook, 794 F.2d 561 (10th
Cir.), cert, denied, 479 U.S. 889 (1986), the court upheld applicability of the
(A)(ii) exception to disclosures to two state police officers who were deputized as
Special Deputy U.S. M arshals to assist in an investigation of illegal drug activities.
The court stressed that the officers “were needed to aid in the investigation and that
the disclosures were necessary to effective aid” and held that they should be
“included within even the most restrictive definition” o f the government personnel
exemption. Id. at 565; see also United States v. Kilpatrick, 821 F.2d 1456, 1471
(10th Cir. 1987), aff’d sub nom. Bank o f Nova Scotia v. United States, 487 U.S.
250 (1988) (“Federal employees assisting the prosecutor in the investigation and
prosecution of federal criminal violations are permitted access to grand jury mate­
rials without prior court permission. However, such support personnel may not use
the material except for purposes of assisting Government attorneys to enforce fed­
eral criminal laws.”); United States v. Claiborne, 765 F.2d 784, 795 (9th Cir.
1985), cert, denied, 475 U.S. 1120 (1986) (holding that (A)(ii) authorizes disclo­
sure to federal officials who assist the prosecution in collecting evidence for a
case).
These cases demonstrate that the category of “government personnel” to whom
disclosures may be made should not be narrowly construed. We therefore see no
reason to conclude that the President and other officials o f the NSC could not
qualify as “government personnel” for purposes of this exemption. Rather, the key
factor in determining the applicability of this exemption to disclosure = of the kind

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proposed is the extent to which the disclosure is limited to the purpose of obtaining
the assistance o f the President and other officials in the Attorney General’s crimi­
nal law enforcem ent activities. See Sells, 463 U.S. at 442. If disclosures are con­
fined to that purpose, they should qualify for coverage under the (A)(ii) exception.
If the Attorney General does rely upon the (A)(ii) exception to disclose grand
jury m aterial w ithout prior court approval in this context, a list naming all the offi­
cials to whom such disclosures are m ade must be submitted to the district court that
em paneled the grand jury. Fed. R. Crim. P. 6(e)(3)(B). While the rule does not
explicitly require subm ission of the list of nam es before the disclosure is made, it
has been held that subm ission of the names should ordinarily be made prior to dis­
closure of the m aterials. United States v. Hogan, 489 F. Supp. 1035, 1038 (W.D.
W ash. 1980) (citing the 1977 Senate Report at 8, where it was stated, “[a]lthough
not expressly required by the rule, the Com m ittee contemplates that the names of
such personnel will generally be furnished to the court before disclosure is made to
them ”). W e believe that, when practicable, the list of names should be submitted
prior to the disclosures.

B. Subsection (B): E xceptions Requiring Court Approval

Subsection 6(e)(3)(C) o f the rule sets forth four additional exceptions from its
general ban on disclosure of grand jury materials. The only one of these excep­
tions relevant to the question posed is the (C)(i) exception, which provides:

(C) D isclosure otherwise prohibited by this rule of matters occur­
ring before the grand jury m ay also be made —

(i) when so directed by a court preliminarily to or in con­
nection with ajudicial proceeding;

This exception has been narrowly interpreted by the Supreme Court. In United
States v. Baggot, 463 U.S. at 480, the Court held that the (C)(i) exception did not
provide a basis for disclosing grand jury material to agents of the Internal Revenue
Service (“IRS”) for purposes of conducting an audit to determine the erstwhile
grand jury target’s civil tax liability. The Court first noted that disclosure under
(C)(i) can only be justified where there is a “particularized need” for access to the
materials and where that need is related to a judicial proceeding. The Court then
elaborated upon the latter prerequisite:

It reflects a judgm ent that not every beneficial purpose, or even
every valid governmental purpose, is an appropriate reason for
breaching grand jury secrecy. Rather, the Rule contemplates only
uses related fairly directly to some identifiable litigation, pending or

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anticipated . . . . If the primary purpose of disclosure is not to assist
in preparation or conduct of a judicial proceeding, disclosure under
(C)(i) is not permitted.

Id.
The Baggot C ourt’s restrictive interpretation confines the (C)(i) exception to
disclosures that are closely and directly related to some identifiable litigation.
However, to the extent that disclosures of the kind described by the Attorney Gen­
eral could satisfy that standard, there is no apparent reason why this exception
would not extend to such disclosures. The primary practical value of the (C)(i)
exception in this context is that it permits disclosures that are related to civil ju d i­
cial proceedings as well as criminal.
Prior judicial approval for (C)(i) disclosures must be obtained by filing a peti­
tion with the district court where the grand jury convened. Fed. R. Crim . P.
6(e)(3)(D). When the government is the petitioner, ex parte hearings are author­
ized. Id. If the court approves the petition, the court specifies the manner, time,
and conditions of the disclosure. Id. 6(e)(3)(C).

II. Disclosures to President under Article II

Apart from the enumerated exceptions from Rule 6(e)’s prohibition against dis­
closure of grand jury material, we believe that the Attorney G eneral’s disclosures
of such materials to the President could in some circumstances be authorized on
broader constitutional grounds. As the repository of all executive power in the
national government, the President is charged with the duty to “take Care that the
Laws be faithfully executed.” U.S. Const., art. II, §§ 1,3. Accordingly, there may
be circumstances in which his constitutional responsibilities entitle the President to
obtain disclosure of grand jury information that has already been made available to
the Attorney General, even where that disclosure might not be specifically author­
ized by one o f the exceptions under Rule 6(e).
In a brief memorandum prepared to provide responses to W atergate-related
press inquiries in 1973, this Office opined that it “is not altogether clear” whether
the President may obtain access to the transcript of a federal grand jury investiga­
tion.3 The memorandum first advised that the restrictive language of Rule 6(e)
“seemingly precludes the disclosure o f [matters occurring before the grand jury] to
the President because he is not a member of the group specifically authorized to
obtain this information.” Id. at 1. This aspect of the memorandum may be attrib­
uted to the fact that the (A)(ii) exception for “government personnel” had not yet
been incorporated in the rule at the time the opinion was written. However, the

3 M em orandum fo r H orace W ebb, A cting D irector, Public Inform ation O ffice, from Robert G. D ixon,
A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, Re. Q uestions fr o m the Press on th e W atergate In v e s­
tigation (A pr. 30, 1973)

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memorandum went on to state, “it can be argued that the President by virtue of his
responsibility in administering the executive branch is authorized to obtain the
transcripts of testimony before a grand jury.” Id. Stressing that all executive
power is vested in the President, and his particular obligation to take care that the
laws be faithfully executed, U.S. Const, art. II, §§ 1 ,3 , the memorandum stated:

[T]hat pow er which is vested in the Attorney General to supervise
all litigation empowers the President to supervise the litigation and
to perform any functions incidental thereto because the power o f the
Attorney General is a residue o f the m ore general power vested in
the President by the Constitution. See also 1 Op. A.G. 453 (1855)
(the heads o f all Departments are subject to the direction of the
President).

Id. at 2. The memorandum added that its opinion on this question was “purely
hypothetical” because the President had ordered that no transcripts o f testimony
before the W atergate grand jury were to be sent to the W hite House. Id.
A m em orandum opinion prepared for the President by Attorney General Griffin
Bell in 1977 provides additional pertinent insight regarding the President’s consti­
tutional authority in working with the Attorney General. Proposals Regarding an
Independent Attorney General, 1 O p. O.L.C. 75 (1977). That opinion expressed
“serious doubts” as to the constitutionality of certain proposed legislation provid­
ing that the Attorney General should be appointed for a definite term and remov­
able from office only for cause or m alfeasance. The opinion placed great stress on
the President’s constitutional responsibility as C hief Executive to supervise the law
enforcem ent functions o f the Attorney General, stating:

Indeed, the President must be held accountable for the actions o f the
executive branch; to accomplish this he must be free to establish
policy and define priorities. Because laws are not self-executing,
their enforcem ent obviously cannot be separated from policy con­
siderations. The Constitution contem plates that the Attorney Gen­
eral should be subject to policy direction from the President. As
stated by the Supreme Court: “The Attorney General is . . . the
hand o f the President in taking care that the laws of the United
States . . . be faithfully executed.” Ponzi v. Fessenden, 258 U.S.
254, 262 (1922). Removing the Attorney General from the Presi­
d en t’s control would make him unaccountable to the President, who
is constitutionally responsible for his actions.

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Id. at 76; see also M yers v. United States, 272 U.S. 52, 133 (1926) (stressing that
“[e]ach head of a department is and must be the President’s alter ego in the matters
of that department where the President is required by law to exercise authority”).
The foregoing Attorney G eneral’s opinion focused on the President’s supervi­
sory authority over the Attorney General in the context of the removal power. The
constitutional principles it invoked are nevertheless pertinent to the President’s
ability to obtain information needed to discharge his responsibilities relative to the
Attorney General’s functions and to “take care that the laws are faithfully exe­
cuted.” In some circumstances, we believe that the President’s Article II responsi­
bilities in this area may independently justify the Attorney G eneral’s disclosure to
him of pertinent grand jury information. A prime example of such circumstances
might be a grand jury investigation of major international terrorist activity in the
United States, involving a threat to domestic peace and national security. In such a
case, the President should be able to share grand jury information legitimately pos­
sessed by the Attorney General in order to aid the President’s handling o f the over­
all law enforcement crisis. Similarly, presidential access to such grand jury
information would also appear justified under the removal power, see M yers, in a
case where, for example, the integrity or loyalty of a presidential appointee holding
an important and sensitive post was implicated in the grand jury investigation.
Although we find no opinions directly addressing this issue, several cases sug­
gest that the constitutional duties of the respective branches may provide inde­
pendent support for their access to grand jury information. In M atter o f Grand
Jury Subpoena o f Rochon, 873 F.2d 170, 174 (7th Cir. 1989), the court observed
as follows in reversing a district court order disqualifying the Attorney General
from participating in a grand jury investigation on alleged conflict o f interest
grounds:

[A] federal district court order prohibiting the Attorney General of
the United States from participating in a grand jury investigation is
no small matter, even if the investigation could continue in his ab­
sence. Since initiating a criminal case by presenting evidence be­
fore the grand jury is ‘“ an executive function within the exclusive
prerogative of the Attorney G eneral,” ’ United States v. Chanen, 549
F.2d 1306, 1312-13 (9th Cir.) (quoting In re Persico, 522 F.2d 41,
54-55 (2d Cir. 1975)), cert, denied, 434 U.S. 825, 98 S. Ct. 72, 54
L.Ed.2d 83 (1977), such an order raises sharp separation-of-powers
concerns. As the Ninth Circuit has stated, although the ‘“ grand jury
is subject to a supervisory power in the courts, aimed at preventing
abuses o f its processes or authority,’” id. at 1313 (quoting 1 W right,
Federal Practice and Procedure § 101, at p. 151 (1969)), “the sepa-
ration-of-powers principle imposes significant limits on it.”

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Id. (quoting United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir. 1985)).
Two low er court decisions of note have upheld congressional access to grand
jury m aterials in aid of that branch’s constitutional power o f impeachment. In
Grand Jury Proceedings o f Grand Jury No. 81-1, 669 F. Supp. 1072, 1074-75
(S.D. Fla.), a ff’d, 833 F.2d 1438 (1 1th Cir. 1987), the court held that the House
Judiciary C om m ittee was entitled to receive the record of grand jury proceedings in
furtherance o f its im peachm ent investigation of Judge Alcee Hastings. Although
the com m ittee’s access to the materials was separately justified on the basis of Fed.
R. Crim. P. 6(e)(3)(C)(i), the court held that the disclosure was also justified on the
basis of, inter alia, the Impeachment Clause. U.S. Const, art. I, § 2; see also In re
Report and Recommendation of June 5, 1972 G rand Jury’, 370 F. Supp. 1219
(D.D.C.), mandamus denied sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir.
1974) (district cou rt’s decision granting the W atergate grand ju ry ’s request that its
report on the matters it investigated be submitted to the House Judiciary Com m it­
tee, upheld by court o f appeals in denying m andam us relief).
These decisions should be read with some caution because the disclosures of the
grand jury m aterials at issue were directly related to impeachment proceedings —
which have been viewed as within the coverage o f the Rule 6(e)(3)(C)(i) exception
— and were undertaken only after obtaining prior judicial approval. Nonetheless,
they dem onstrate the courts’ willingness to recognize an independent constitutional
basis for disclosures o f grand jury inform ation outside the provisions o f Rule 6(e).
Thus, if congressional access to grand jury m aterials may be independently justi­
fied on the basis o f its Article I pow er, it would be anomalous to contend that
presidential access to such materials could not be justified on the basis of the
President’s Article II powers.
In the absence o f judicial precedent on this point, however, any disclosure of
grand jury m atter to the President on this basis should be cautiously undertaken
and reserved for matters o f clear executive prerogative in areas where the Rule
6(e)(3)(A )(ii) exception could not be used. Because such disclosures would be
based on the P resident’s inherent constitutional powers rather than Rule 6(e), the
rule’s various procedural requirements would not be applicable. Nonetheless, the
risk o f constitutional confrontation could be minimized by seeking the approval of
the district court that impaneled the grand jury, invoking the court’s inherent
authority to disclose grand jury m aterials for reasons other than those specified in
Rule 6(e).
A federal court’s “inherent” pow er to authorize disclosure of grand jury matters
outside the param eters o f Rule 6(e) was recognized by the Eleventh Circuit in In re
Petition, 735 F.2d 1261, 1268 (11th Cir.), cert, denied, 469 U.S. 884 (1984). At
issue was w hether the Judicial Council of the Eleventh Circuit could have access to
records of a federal grand jury in connection with the Council’s investigation of
Judge A lcee H astings under the Judicial C ouncils Reform and Disability Act, 28
U.S.C. § 372. The court recognized that none o f the Rule 6(e) exceptions applied

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to the request, although it noted that the investigation in question was “very simi­
lar” to the “judicial proceedings” covered by the Rule 6(e)(3)(C)(i) exception.
Nonetheless, the Eleventh Circuit affirmed the district court’s holding that Rule
6(e) did not preclude it “from fashioning an alternate method for disclosure under
its general supervisory authority over grand jury proceedings and records.” 735
F.2d at 1267-68.4 As the court explained the inherent power doctrine:

[I]t has been authoritatively said that [Rule 6(e)] is not the true
source of the district court’s power with respect to grand jury rec­
ords but rather is a codification of standards pertaining to the scope
of the power entrusted to the discretion of the district court.

Id. at 1268. After citing examples of how the courts have influenced the develop­
ment of Rule 6(e) through the exercise of their “inherent power” over grand jury
materials, the court stated:

These examples from the history o f Rule 6(e) indicate that the ex­
ceptions permitting disclosure were not intended to ossify the law,
but rather are subject to developm ent by the courts in conformance
with the rule’s general rule o f secrecy.

Id. at 1269. The court concluded that “it is certain that a court’s power to order
disclosure of grand jury records is not strictly confined to instances spelled out in
the rule,” id. at 1268, but it stressed that the courts can only order disclosure out­
side the rule in “exceptional circumstances consonant with the rule’s policy and
spirit.” Id. at 1269.
Although the Eleventh Circuit’s “inherent power” doctrine has not been widely
cited by the courts in published opinions, it does provide one recognized frame­
work for seeking judicial approval of disclosures of grand jury material to the
President based on constitutional authority rather than on Rule 6(e).

W ALTER DELLINGER
Acting Assistant Attorney General
Office o f Legal Counsel

4 T he Eleventh C irc u it's holding on this issue has been criticized in one d istrict court decision In M atter
o f E lectronic S u rveillance, 596 F. Supp 991, 1001 (E D M ich 1984), the court asserted that the “ Eleventh
C irc u it's reliance on the inherent pow ers d o ctrin e is su sp ect.’” In support o f this position, the d istrict court
c ontend ed that the Suprem e C o u rt's decision in U nited S ta te s v. Baggot 463 U S. 4 76 (1983) had im plicitly
rejected extra-R ule 6(e) disclosures because the trial court in B aggot had found that disclosure w as author­
ized un d er the inherent pow ers doctrine, b u t the Suprem e C o u rt had held against disclosure b ecau se the
standards o f Rule 6 (e )(3 )(C )(l) had not been satisfied. W e do not read the Baggot decision as taking any
position, one w ay or the other, on the inherent pow ers d o ctrin e because, as the C ourt noted, certiorari there
was lim ited to the narrow question o f w hether an IRS civil tax audit is ‘‘p re lim in a ry ] to or in connection
w ith a ju d icial proceeding ’ under the (C )(i) e x cep tio n Id at 478 (alteration in original)

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