# The Department of Justice Inspector General's Access to Information Protected by the Federal Wiretap Act, Rule 6(e) of the Federal Rules of Criminal Procedure, and Section 626 of the Fair Credit Reporting Act

> Department of Justice Office of Legal Counsel · July 20, 2015

URL: https://www.frixlaw.com/law-library/cases/4119304

## Case

- **Court:** Department of Justice Office of Legal Counsel
- **Decided:** July 20, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

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## Opinion text

The Department of Justice Inspector General’s Access to
Information Protected by the Federal Wiretap Act,
Rule 6(e) of the Federal Rules of Criminal Procedure,
and Section 626 of the Fair Credit Reporting Act
Department of Justice officials may disclose information protected by the Federal Wiretap Act (Title III
of the Omnibus Crime Control and Safe Streets Act of 1968), Rule 6(e) of the Federal Rules of
Criminal Procedure, and section 626 of the Fair Credit Reporting Act to the Department’s Office of
Inspector General (“OIG”) in connection with many, but not all, of OIG’s investigations and reviews.
Section 6(a)(1) of the Inspector General Act of 1978 does not supersede the limitations on disclosure
contained in Title III, Rule 6(e), and section 626.
Section 218 of the Consolidated and Further Continuing Appropriations Act, 2015, also does not
supersede the limitations on disclosure contained in Title III, Rule 6(e), and section 626.

July 20, 2015

MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL *

You have asked whether the Department of Justice (the “Department”) may
lawfully provide the Department’s Office of the Inspector General (“OIG”) with
access to documents containing certain kinds of statutorily protected information. 1
In particular, you have asked whether the Department may grant OIG access, in
connection with OIG audits, investigations, and reviews, to information protected
by the Federal Wiretap Act, Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, as amended, 18 U.S.C. §§ 2510–2522 (“Title III”); Rule 6(e) of the
Federal Rules of Criminal Procedure (“Rule 6(e)”); and section 626 of the Fair
Credit Reporting Act, 15 U.S.C. § 1681u (“FCRA”). Subject to certain exceptions,

*
Editor’s Note: Since this opinion was issued, Congress amended section 6(a) of the Inspector
General Act to provide that inspectors general are authorized “to have timely access to all records,
reports, audits, reviews, documents, papers, recommendations, or other materials available to the
applicable establishment which relate to the programs and operations with respect to which that Inspector
General ha responsibilities under this Act . . . notwithstanding any other provision of law, except
pursuant to any provision of law enacted by Congress that expressly . . . refers to the Inspector General;
and . . . limits the right of access of the Inspector General.” Inspector General Empowerment Act of 2016,
Pub. L. No. 114-317, sec. 5(1), § 6(a)(1)(A), (B) (codified at 5 U.S.C. app. § 6(a)(1)(A), (B)). The
amended statute also provides a special procedure for access to “Federal grand jury materials protected
from disclosure pursuant to rule 6(e) of the Federal Rules of Criminal Procedure.” Id. § 6(a)(1)(C)). We
analyzed inspector general access under statutory provisions similar to those in the amended section 6(a)
in Authority of the Department of Justice to Disclose Statutorily Protected Materials to Its Inspector
General in Light of Section 540 of the Commerce, Justice, Science, and Related Agencies Appropriations
Act, 2016, 40 Op. O.L.C. __ (Apr. 27, 2016), http://www.justice.gov/olc/opinions.htm.
1
See Memorandum for Karl Thompson, Acting Assistant Attorney General, Office of Legal Counsel,
from James M. Cole, Deputy Attorney General (May 24, 2014) (“Opinion Request”). Our Office received
a request for an opinion on the same subject in 2011, but that request was withdrawn. See Letter for
Cynthia Schnedar, Acting Inspector General, from James M. Cole, Deputy Attorney General (Mar. 16,
2012). In preparing this opinion, we have considered views submitted in connection with both requests.

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Opinions of the Office of Legal Counsel in Volume 39

each of these statutes restricts the disclosure of particular categories of information:
Title III limits the Department’s authority to disclose the contents of intercepted
communications; Rule 6(e) limits the Department’s authority to disclose grand jury
materials; and section 626 of FCRA limits the authority of the Federal Bureau of
Investigation (“FBI”) to disclose consumer information obtained pursuant to
National Security Letters issued under section 626. At the same time, however,
section 6(a)(1) of the Inspector General Act of 1978, as amended, 5 U.S.C. app. (the
“IG Act”), authorizes OIG “to have access to all records, reports, audits, reviews,
documents, papers, recommendations, or other material” available to the
Department and relevant to the programs and operations OIG is charged with
reviewing. 5 U.S.C. app. § 6(a)(1).
In views letters submitted in connection with the preparation of this opinion,
OIG, together with certain other interested entities, argues that section 6(a)(1) of the
IG Act grants it an unqualified right of access to Department records relevant to its
audits, investigations, and reviews, notwithstanding any limitations on disclosure
imposed by Title III, Rule 6(e), or section 626 of FCRA. OIG also argues that, even
leaving section 6(a)(1) aside, the relevant statutory exceptions in Title III, Rule 6(e),
and section 626 permit the Department and its components to disclose protected
information to OIG when that information is pertinent to its audits, investigations,
or reviews. Certain other Department components disagree, arguing that the
statutory exceptions in Title III, Rule 6(e), and section 626 permit disclosure of
protected information to OIG only in a limited set of circumstances, and that the
limits on disclosure apply even when OIG requests material under section 6(a)(1)
of the IG Act. 2

2
See E-mail for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from
William M. Blier, General Counsel, OIG (Apr. 29, 2015 6:37 PM) (“OIG 2015 E-mail”); Memorandum
for the Acting Assistant Attorney General, Office of Legal Counsel, from Michael E. Horowitz, Inspector
General (June 24, 2014) (“OIG 2014 Memorandum”); Memorandum for the Attorney General from
Cynthia A. Schnedar, Acting Inspector General (Dec. 16, 2011) (“OIG Grand Jury Memorandum”);
Memorandum for the Deputy Attorney General from Cynthia A. Schnedar, Acting Inspector General
(Dec. 16, 2011) (“OIG Title III Memorandum”); Memorandum for the Deputy Attorney General from
Cynthia A. Schnedar, Acting Inspector General (Dec. 6, 2011) (“OIG FCRA Memorandum”);
Memorandum for Caroline D. Krass, Principal Deputy Assistant Attorney General, Office of Legal
Counsel, from Carol F. Ochoa, Assistant Inspector General, Oversight and Review Division (Mar. 9,
2011) (“OIG Supplemental Memorandum”); Memorandum for Paul P. Colborn, Special Counsel, Office
of Legal Counsel, from Carol F. Ochoa, Assistant Inspector General, Oversight and Review Division
(Dec. 17, 2010) (“OIG Memorandum”); see also Memorandum for John Bies, Deputy Assistant Attorney
General, Office of Legal Counsel, from Leslie R. Caldwell, Assistant Attorney General, Criminal
Division (July 14, 2014); Letter for John E. Bies, Deputy Assistant Attorney General, Office of Legal
Counsel, from Phyllis K. Fong, Chair, and Lynne A. McFarland, Vice Chair, Council of the Inspectors
General on Integrity and Efficiency (“CIGIE”) (June 24, 2014); Memorandum for John E. Bies, Deputy
Assistant Attorney General, Office of Legal Counsel, from G. Bradley Weinsheimer, Deputy Counsel,
Office of Professional Responsibility (June 24, 2014); E-mail for John E. Bies, Deputy Assistant
Attorney General, Office of Legal Counsel, from Jocelyn Aqua, National Security Division (Mar. 2, 2012
3:54 PM) (“NSD E-mail”); Memorandum for Virginia A. Seitz, Assistant Attorney General, Office of

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Department of Justice Inspector General’s Access to Information

For the reasons set forth below, we conclude that the statutory exceptions in
Title III, Rule 6(e), and section 626 of FCRA permit the Department to disclose to
OIG the covered information it seeks in most, but not all, of the circumstances in
which OIG might request it. In particular, Title III permits Department officials to
disclose to OIG the contents of intercepted communications when doing so could
aid the disclosing official or OIG in the performance of their duties related to law
enforcement, including duties related to Department leadership’s supervision of law
enforcement activities on a programmatic or policy basis. Rule 6(e) permits
disclosure of grand jury materials to OIG if a qualifying attorney determines that
such disclosure could assist her in the performance of her criminal law enforcement
duties, including any supervisory law enforcement duties she may have. And FCRA
permits the FBI to disclose to OIG consumer information obtained pursuant to
section 626 if such disclosure could assist in the approval or conduct of foreign
counterintelligence investigations, including in the supervision of such
investigations on a programmatic or policy basis. In our view, however, Title III and
Rule 6(e) forbid disclosures that have either an attenuated or no connection with the
conduct of the Department’s criminal law enforcement programs or operations, and
section 626 of FCRA forbids disclosures that have either an attenuated or no
connection with the approval or conduct of foreign counterintelligence
investigations.
We further conclude that, to the extent that Title III, Rule 6(e), and section 626
prohibit Department officials from disclosing information to OIG, section 6(a)(1)
of the IG Act does not override these prohibitions. Under longstanding interpretive
principles, general access provisions like section 6(a)(1) are generally construed not
to override specific, carefully drawn limitations on disclosure like Title III,
Rule 6(e), and section 626 unless Congress has clearly indicated that it intends the
general access provision to have that effect. And in our view, the text of the IG Act
contains no clear indication that Congress intended section 6(a)(1) to override
Title III, Rule 6(e), or section 626. The Act’s legislative history, moreover,

Legal Counsel, from Lanny A. Breuer, Assistant Attorney General, Criminal Division (Feb. 16, 2012);
Letter for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Phyllis K.
Fong, Chair, and Carl Clinefelter, Vice Chair, CIGIE (Oct. 7, 2011); Memorandum for the Office of the
Deputy Attorney General, from Patrick W. Kelley, Acting General Counsel, FBI (Oct. 5, 2011);
Memorandum for John Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Lanny
A. Breuer, Assistant Attorney General, Criminal Division (Apr. 12, 2011); Memorandum for Jonathan
G. Cedarbaum, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Valerie
Caproni, General Counsel, FBI (Jan. 13, 2011) (“FBI Memorandum”).
In addition, although the Office does not solicit views from outside the Executive Branch, we
received a letter concerning the issues addressed in this opinion from Senator Charles E. Grassley and
Representative John Conyers, then-Ranking Members of the Senate and House Committees on the
Judiciary. See Letter for Karl R. Thompson, Acting Assistant Attorney General, Office of Legal Counsel,
from Charles E. Grassley, Ranking Member, Committee on the Judiciary, U.S. Senate, and John Conyers,
Ranking Member, Committee on the Judiciary, U.S. House of Representatives (Oct. 10, 2014). We
appreciate Senator Grassley’s and Representative Conyers’ interest in these issues, and have considered
their views in preparing this opinion.

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Opinions of the Office of Legal Counsel in Volume 39

affirmatively indicates that Congress expected an inspector general’s right of access
to be subject to statutory limits on disclosure.
In reaching these conclusions, our Office’s role has not been to decide what
access OIG should receive as a matter of policy. Rather, we have endeavored to
determine as a matter of law, using established tools of statutory construction, how
best to reconcile the strong privacy protections embodied in Title III, Rule 6(e), and
section 626 with the interest in access reflected in section 6(a)(1) of the IG Act.
This opinion has four parts. In Part I, we set forth some statutory background
related to the IG Act, and explain the potential statutory conflict that arises when
OIG, relying on the IG Act’s general access provision, requests material that is also
covered by the nondisclosure provisions in Title III, Rule 6(e), or section 626 of
FCRA. In Part II, we examine Title III, Rule 6(e), and section 626 to determine
whether the exceptions in those statutes permit disclosure of the protected materials
OIG seeks, thereby avoiding the potential conflict between those statutes and the IG
Act. In Part III, having concluded that this conflict cannot be avoided in all
circumstances, we explain why, in our view, the general access provision in section
6(a)(1) of the IG Act does not override the specific protections of sensitive informa-
tion contained in Title III, Rule 6(e), and section 626. Finally, in Part IV, we discuss
a Fiscal Year 2015 appropriations rider concerning the disclosure of Department
materials to OIG and conclude that it too does not abrogate the specific protections
of sensitive information found in those statutes. 3

I.

Congress enacted the IG Act in 1978 to “create independent and objective units”
within the Executive Branch that would promote the integrity of executive agencies
and keep executive officials and Congress fully informed about their operations.
5 U.S.C. app. § 2. To achieve these goals, the Act created an Office of Inspector
General in a large number of federal agencies. Id. §§ 2(A), 8G(a)–(b), 12(2). 4 Each
office is led by an inspector general who is charged with auditing, investigating,
detecting fraud and abuse in, and making recommendations and reports about the
agency’s “programs and operations.” Id. §§ 3(a), 4(a), 5. Each inspector general
must “keep the head of [his agency] and the Congress fully and currently informed”

3
You have asked only whether it would be “lawful[]” for the Department to provide OIG information
protected by Title III, Rule 6(e), and section 626 of FCRA. Opinion Request. Accordingly, we do not
address in this opinion whether and, if so, under what circumstances the Department could lawfully
withhold information it is legally permitted to disclose.
4
The IG Act uses the term “establishment” to refer to those enumerated agencies, departments,
commissions, boards, and corporations in which Congress created an Office of the Inspector General.
5 U.S.C. app. § 12(2). The Act also refers to “designated Federal entit[ies],” defined to include a different
list of government corporations and other entities, and directs that “there shall be established and
maintained in each designated Federal entity an Office of Inspector General.” Id. § 8G(b). Throughout
this opinion, we will refer to the federal establishments and entities subject to the IG Act, collectively,
as “agencies.”

4
Department of Justice Inspector General’s Access to Information

about fraud, abuse, deficiencies, and other serious problems in “the administration
of programs and operations administered or financed by such” agency, and
“recommend corrective action” to address any problems he identifies. Id. § 4(a)(5).
Inspectors general must “report to” and are placed “under the general supervision
of” the heads of their agencies. However, the head of an agency generally may not
“prevent or prohibit the Inspector General from initiating, carrying out, or
completing any audit or investigation.” Id. § 3(a).
Pursuant to their statutory mandate, inspectors general engage in a wide variety
of audits, investigations, and reviews. The Department’s OIG, for example, con-
ducts investigations of suspected criminal wrongdoing by Department employees;
investigations of administrative misconduct that may or may not rise to the level of
criminal wrongdoing; and broader reviews of Department programs and operations
that seek to assess whether the programs are lawful, well-run, or otherwise in the
public interest. See Office of the Inspector General, U.S. Dep’t of Justice,
Semiannual Report to Congress: Apr. 1, 2014–Sept. 30, 2014, at 13–14 (Oct. 31,
2014) (“Semiannual Report”); 28 C.F.R. § 0.29a(b)(2), (4). The Department’s OIG
also conducts financial and administrative audits of Department components. See
Semiannual Report at 13; 28 C.F.R. § 0.29a(b)(1). Significantly, however, while the
IG Act affords inspectors general broad authority to investigate an agency’s
programs and operations, it does not in most cases allow inspectors general to
conduct activities “constituting an integral part of the programs involved,” Inspector
General Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. 54, 62
(1989) (“Authority to Conduct Regulatory Investigations”), and it prohibits the
heads of federal agencies from transferring to inspectors general any of the agency’s
“program operating responsibilities,” 5 U.S.C. app. § 9(a). 5
The IG Act also grants inspectors general several enumerated authorities that
help them carry out their statutory duties, such as the authority to issue subpoenas,
take sworn testimony, and hire staff. See id. § 6(a)(4), (5), (7). Especially relevant
here is the authority to obtain records and other materials from the agency over
which an inspector general has investigative jurisdiction. This authority is set forth
in section 6(a)(1), which provides:

[E]ach Inspector General, in carrying out the provisions of this Act, is
authorized . . . to have access to all records, reports, audits, reviews,
documents, papers, recommendations, or other material available to
the applicable [agency] which relate to programs and operations with

5
Some of OIG’s statutory responsibilities, such as conducting investigations of suspected criminal
wrongdoing by Department employees, see 5 U.S.C. app. § 8E(b)(2), (4), may involve the same kinds of
activities as the “program operating responsibilities” of other Department components. The IG Act does
not prevent OIG from carrying out these activities pursuant to its statutory authority. See Authority to
Conduct Regulatory Investigations, 13 Op. O.L.C. at 66–67 & n.21.

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Opinions of the Office of Legal Counsel in Volume 39

respect to which that Inspector General has responsibilities under this
Act.

Id. § 6(a)(1). In addition to granting each inspector general access to materials
available to his agency and within his investigative jurisdiction, this provision
implicitly imposes a corresponding duty on the applicable agency to provide the
inspector general with such access upon request.
In the case of the Department (and certain other agencies), however, the IG Act
qualifies this broad disclosure requirement. As originally enacted, the IG Act did not
establish an Office of the Inspector General in the Justice Department. When Congress
extended the Act’s provisions to the Department in 1988, see Inspector General Act
Amendments of 1988, Pub. L. No. 100-504, § 102(c), 102 Stat. 2515, 2515–16,
Congress limited OIG’s authority to investigate matters involving certain kinds of
information, in recognition of the sensitivity of much of the Department’s work, see
H.R. Rep. No. 100-1020, at 24 (1988) (Conf. Rep.). Specifically, section 8E(a)(1) of
the Act provides that the Department’s Inspector General “shall be under the authority,
direction, and control of the Attorney General with respect to audits or investigations,
or the issuance of subpenas, which require access to sensitive information concerning”
certain enumerated matters, such as “ongoing civil or criminal investigations or
proceedings,” “undercover operations,” and “other matters the disclosure of which
would constitute a serious threat to national security.” 5 U.S.C. app. § 8E(a)(1).
Section 8E(a)(2) similarly provides that the Attorney General may “prohibit the
Inspector General from carrying out or completing any audit or investigation . . . if the
Attorney General determines that such prohibition is necessary to prevent the
disclosure of any information described under [section 8E(a)(1)] or to prevent the
significant impairment to the national interests of the United States.” Id. § 8E(a)(2).
Section 8E thus provides a mechanism through which the Attorney General can
“prevent the disclosure” of certain sensitive information to which OIG would
otherwise be entitled under section 6(a)(1). Id.
The IG Act, moreover, is not in all circumstances the only statute that governs
OIG’s access to Department materials. As noted above, in conducting its audits,
investigations, and reviews, OIG has sometimes requested materials that include
the contents of wire, oral, or electronic communications the Department has
intercepted pursuant to Title III; information the Department has acquired in the
course of grand jury proceedings; and consumer information the FBI has obtained
using National Security Letters issued under section 626 of FCRA. And while
such information falls within the broad terms of section 6(a)(1) of the IG Act, its
use and disclosure is also regulated, and in many circumstances prohibited, by
Title III, Rule 6(e), and section 626. 6 Specifically, as we discuss in more detail

6
Because Congress enacted Rule 6(e) in 1977, see Pub. L. No. 95-78, § 2, 91 Stat. 319, 319, it is “by
any definition . . . a statute.” Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d

6
Department of Justice Inspector General’s Access to Information

below, Title III bars investigative and law enforcement officers from using or
disclosing the contents of lawfully intercepted communications unless a statutory
exception to Title III’s disclosure prohibitions applies, see 18 U.S.C. § 2517, and
imposes administrative, civil, and sometimes criminal sanctions for unauthorized
disclosure, see id. §§ 2520(a), (f), (g), 2511(1)(e), (4)(a). Rule 6(e) prohibits
“attorney[s] for the government” and other specified individuals from disclosing
“a matter occurring before the grand jury” except pursuant to a specific exception,
Fed. R. Crim. P. 6(e)(2)(B), and makes a knowing violation of that prohibition
punishable “as a contempt of court,” id. 6(e)(7). And section 626 of FCRA
prohibits the FBI from disclosing consumer information obtained pursuant to a
National Security Letter (a kind of written request for information in connection
with a counterterrorism or intelligence investigation) except as authorized by one
of the exceptions provided in the statute, see 15 U.S.C. § 1681u(f), and makes
unauthorized disclosure a basis for civil damages and disciplinary action, see id.
§ 1681u(i)–(j).
As a result, in responding to OIG requests for materials covered by Title III,
Rule 6(e), or section 626, Department officials face potentially conflicting statutory
directives. Title III, Rule 6(e), and section 626 prohibit the Department from
disclosing such materials—on pain of contempt, administrative and civil sanctions,
and sometimes criminal penalties—unless a statutory exception applies. The IG Act,
in contrast, requires the Department to disclose “all” materials that are available to
the Department, relate to an OIG review of programs or operations within its
investigative jurisdiction, and are not covered by a determination to withhold them
under section 8E.
Where two statutes govern the same subject matter, the Supreme Court has
instructed that the statutes are to be read in pari materia and construed, where
possible, as part of a single and coherent regulatory scheme. See Morton v. Mancari,
417 U.S. 535, 551 (1974) (“When there are two acts upon the same subject, the rule
is to give effect to both if possible.” (quoting United States v. Borden Co., 308 U.S.
188, 198 (1939))); see also, e.g., FCC v. NextWave Personal Commc’ns, 537 U.S.
293, 304 (2003); J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124,
143–44 (2001); Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528,
533 (1995); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984). Only where
a harmonious construction of two statutes is impossible should one be construed as
overriding or implicitly repealing the other. Morton, 417 U.S. at 551. Accordingly,
before considering whether the general access requirement in section 6(a)(1) of the
IG Act overrides the disclosure restrictions in Title III, Rule 6(e), and section 626
of FCRA, we examine the latter three statutes to determine whether and to what
extent they permit disclosures to OIG.

856, 867 (D.C. Cir. 1981) (concluding that grand jury information protected from disclosure by Rule 6(e)
is information “specifically exempted from disclosure by statute” within the meaning of Exemption 3 of
the Freedom of Information Act, 5 U.S.C. § 552(b)(3)).

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II.

A.

We begin with Title III. Congress enacted this statute in the wake of the Supreme
Court’s decisions in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United
States, 389 U.S. 347 (1967), which held that electronic surveillance constitutes a
search subject to the limits imposed by the Fourth Amendment. In response to these
rulings, Congress created a comprehensive statutory scheme governing the inter-
ception, use, and disclosure of wire, oral, and electronic communications, see 18
U.S.C. §§ 2510–2522, thereby establishing a mechanism through which law enforce-
ment officials could conduct electronic surveillance in a manner that “me[t] the
constitutional requirements” enunciated in Berger and Katz. United States v. U.S. Dist.
Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 302 (1972); see Scott v. United
States, 436 U.S. 128, 130 (1978) (noting that Title III was intended to “provide law
enforcement officials with some of the tools thought necessary to combat crime
without unnecessarily infringing upon the right of individual privacy”). Title III
permits the Attorney General and other Department leadership officials to authorize
investigative or law enforcement officers to apply for court orders allowing them to
intercept wire, oral, or electronic communications. See 18 U.S.C. §§ 2510, 2516(1),
(3), 2518(1)(a); see also id. § 2516(2) (authorizing applications by certain state
attorneys). And it permits courts to grant such orders if the government makes a series
of procedural and evidentiary showings, including a showing that the interception
“may provide or has provided” evidence of any of dozens of enumerated federal
offenses (or, for the interception of an electronic communication, evidence of “any
Federal felony”). Id. §§ 2516(1), (3), 2518.
Once an investigative or law enforcement officer has lawfully intercepted a
communication, Title III prohibits that officer from further disclosing the contents
of the communication—and, as noted above, subjects her to potential
administrative, civil, or criminal sanctions if she does so—unless section 2517
authorizes the disclosure. See Title III Electronic Surveillance Material and the
Intelligence Community, 24 Op. O.L.C. 261, 270–71 n.12, 272 (2000) (“Title III
Intelligence Community”); 18 U.S.C. § 2520(a), (f), (g) (authorizing civil damages
and administrative discipline for willful disclosures); id. § 2511(1)(e), (4)(a)
(authorizing criminal penalties for certain intentional disclosures). One provision in
section 2517, section 2517(1), is particularly relevant here. It provides that

[a]ny investigative or law enforcement officer who, by any means
authorized by this chapter, has obtained knowledge of the contents of
any wire, oral, or electronic communication, or evidence derived
therefrom, may disclose such contents to another investigative or law
enforcement officer to the extent that such disclosure is appropriate to
the proper performance of the official duties of the officer making or
receiving the disclosure.

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Department of Justice Inspector General’s Access to Information

18 U.S.C. § 2517(1). This provision thus permits disclosure of the contents of a
lawfully intercepted communication if the disclosure is made (1) by an
“investigative or law enforcement officer,” (2) “to another investigative or law
enforcement officer,” (3) “to [an] extent . . . appropriate to the proper performance
of the official duties of the officer making or receiving the disclosure.” A separate
provision in Title III, section 2510(7), defines an “[i]nvestigative or law
enforcement officer” as “any officer of the United States or of a State or political
subdivision thereof, who is empowered by law to conduct investigations of or to
make arrests for offenses enumerated in this chapter, and any attorney authorized
by law to prosecute or participate in the prosecution of such offenses.” Id. § 2510(7).
OIG contends that section 2517(1) authorizes Department investigative and law
enforcement officers to disclose the contents of lawfully intercepted
communications to OIG whenever OIG deems such information pertinent to any of
its investigations. It observes that, in a prior opinion, this Office “determined that
OIG agents . . . qualify as ‘investigative officers’ authorized to disclose or receive
Title III information.” OIG 2014 Memorandum at 11 (citing Whether Agents of the
Department of Justice Office of Inspector General are “Investigative or Law
Enforcement Officers” Within the Meaning of 18 U.S.C. § 2510(7), 14 Op. O.L.C.
107, 109–10 (1990) (“Investigative Officers”)). And OIG contends that disclosures
to assist in its audits, investigations, and reviews are invariably “appropriate to the
proper performance of the official duties of the officer making or receiving the
disclosure” for two different (and in its view independently sufficient) reasons. First,
it argues that under an ordinary understanding of the term “official duties,”
disclosing Title III materials to OIG will always be appropriate to both the official
duties of the Department officials disclosing the materials (because those officials
have a duty to cooperate with OIG’s audits, investigations, and reviews) and the
official duties of the OIG agents receiving the materials (because the IG Act gives
them a duty to investigate the Department). Second, OIG argues that even if “official
duties” are limited to duties related to law enforcement—as this Office concluded
in a 2000 opinion—all of OIG’s audits, investigations, and reviews still qualify for
disclosure, because they involve either investigations of alleged criminal
wrongdoing by Department employees, investigations of alleged administrative
misconduct that might lead to discovery of criminal violations, or reviews of the
Department’s criminal law enforcement programs for purposes of “supervision or
oversight.” OIG Title III Memorandum at 2; see OIG 2014 Memorandum at 10–12;
cf. OIG Supplemental Memorandum at 35–38.
We address these arguments in the two sections that follow. In the first section,
we conclude that OIG is correct that OIG agents qualify as “investigative officers”
who may receive Title III information, but—consistent with the conclusion in our
2000 opinion—disagree with OIG’s broad argument that Title III permits disclosure
in connection with duties unrelated to law enforcement. In the second section, we
substantially agree with OIG’s narrower argument—namely, that disclosures to
OIG agents will frequently assist the official law-enforcement-related duties of

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either the officer making or the officer receiving the disclosure. In particular, we
conclude that Title III permits disclosure in connection with OIG reviews that
concern, or are designed to develop recommendations about, the conduct of the
Department’s criminal law enforcement programs, policies, or practices. As we
explain, many—but not all—OIG investigations and reviews are likely to qualify
for disclosure under this standard.

1.

OIG’s first argument is that section 2517(1) invariably permits Department
officials to disclose Title III information to OIG agents. See OIG 2014
Memorandum at 10–12. We agree that disclosures between Department officials
and OIG agents generally comply with the statute’s first two requirements:
Numerous officers of the Department are “investigative or law enforcement
officer[s]” entitled to disclose Title III information under section 2517(1), and OIG
agents are “investigative or law enforcement officer[s]” entitled to receive such
information. But, as we explain below, a prior opinion of this Office concluded that
the statutory phrase “official duties” refers only to official duties related to law
enforcement. That conclusion applies here, and means that disclosing information
to OIG is not in itself, and without some further link to law enforcement,
“appropriate to the proper performance of [an] official dut[y]” within the meaning
of section 2517(1).
The first requirement for a disclosure under section 2517(1) is that it be made by
an “investigative or law enforcement officer,” defined as an officer of the United
States (or a State or locality) empowered to “conduct investigations of,” “make
arrests for,” or, if the officer is an attorney, “prosecute or participate in the prosecu-
tion of” offenses enumerated in section 2516. 18 U.S.C. § 2510(7). Numerous
officials in the Department qualify as “investigative or law enforcement officer[s]”
who may disclose intercepted communications under this provision. The officers
who typically possess Title III information, such as FBI agents, qualify as
investigative or law enforcement officers by virtue of their authority to “investi-
gat[e]” and “make arrests for” crimes enumerated in section 2516. Id.; see, e.g., 28
C.F.R. § 0.85 (enumerating investigatory functions of the FBI). And prosecutors,
such as Assistant United States Attorneys, qualify because they are federal officers
“authorized by law to prosecute or participate in the prosecution of” enumerated
offenses. 18 U.S.C. § 2510(7); see, e.g., 28 U.S.C. §§ 542, 547 (authorizing United
States Attorneys and their assistants to prosecute federal offenses). Officers of the
Department with leadership or supervisory responsibilities, such as the Attorney
General and Deputy Attorney General, also qualify as investigative or law
enforcement officers. They too are executive officers generally vested with
authority to investigate, make arrests for, and prosecute offenses enumerated in
section 2516. See, e.g., 28 U.S.C. §§ 509, 515; 28 C.F.R. § 0.15(a). In addition, as
we explain below, these officers participate in investigations, arrests, and

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prosecutions through their direction and supervision of those actions on an
individual or programmatic basis. See infra pp. 14–15.
Section 2517(1)’s second requirement is that the person receiving a disclosure of
Title III material also be an investigative or law enforcement officer. As OIG
observes, this Office has already concluded, in a 1990 opinion, that OIG agents
“qualify as ‘investigative officer[s]’ under section 2510(7).” Investigative Officers,
14 Op. O.L.C. at 109 (alteration in original). OIG agents, as officers in the Executive
Branch, are “officer[s] of the United States.” 18 U.S.C. § 2510(7). Further, as we
explained in our 1990 opinion, the IG Act “entrusts [OIG] with investigative, auditing,
and other responsibilities relevant to the detection and prosecution of fraud and abuse
within [Department] programs or operations.” 14 Op. O.L.C. at 109–10. When OIG
agents, exercising those responsibilities, “discover evidence that . . . Department
personnel, contractors, or grantees are engaging in [offenses enumerated in section
2516]”—such as “bribery of public officials and witnesses,” “influencing or injuring
an officer, juror, or witness,” or “obstruction of criminal investigations”—they have
the authority to investigate those crimes. Id. at 110. Indeed, the portion of the IG Act
that created OIG specifically authorizes it to “investigate allegations of criminal
wrongdoing” by Department employees. 5 U.S.C. app. § 8E(b)(2), (4); see also id.
§ 8E(d); 28 C.F.R. §§ 0.29a(b)(2), 0.29c(a). Furthermore, upon learning of “reason-
able grounds to believe there has been a violation of Federal criminal law,” inspectors
general are required to “report [such violations] expeditiously to the Attorney
General,” Investigative Officers, 14 Op. O.L.C. at 109 (quoting 5 U.S.C. app. § 4(d)),
presumably so that the Attorney General can consider the matter for prosecution.
OIG’s investigative jurisdiction thus “carries with it the power to investigate offenses
enumerated in section 2516,” and as a result, OIG agents—“including special agents,
auditors and investigators”—are “investigative officers” entitled to receive
disclosures of Title III information under section 2517(1). Id. at 110. 7
The conclusion that both Department officials who maintain Title III information
and OIG agents who seek it are “investigative or law enforcement officer[s]” under
section 2517(1), however, does not mean that those officers may share Title III
information with each other in all circumstances. Section 2517(1)’s third
requirement is that any disclosure of Title III information between qualifying
officers must be “appropriate to the proper performance of the official duties of the
officer making or receiving the disclosure.” 18 U.S.C. § 2517(1). In our 2000
Title III Intelligence Community opinion, this Office concluded that the phrase
“official duties,” despite its apparent breadth, includes only the “law enforcement
duties” of the relevant officer—that is, those “duties related to the prevention,
investigation, or prosecution of criminal conduct.” 24 Op. O.L.C. at 264 n.7, 265
(emphasis in original). We reasoned that if “official duties” were read to “permit

7
Some OIG agents may also qualify as “investigative or law enforcement officer[s]” because they
are authorized by the Attorney General, pursuant to specific provisions in the IG Act, to make warrantless
arrests and execute arrest warrants. See 5 U.S.C. app. § 6(e); 28 C.F.R. § 0.29j(d)–(e).

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disclosure . . . for purposes unrelated to law enforcement,” section 2517(1) “would
constitute only a highly elastic limitation on disclosure among law enforcement
officers”—allowing, for instance, an attorney with both civil and criminal duties to
receive wiretap information for use in civil litigation. Id. at 265. We found this result
“unlikely in light of Congress’s effort in Title III to protect privacy to the maximum
extent possible, consistent with permitting electronic surveillance for law
enforcement purposes.” Id.; see id. at 267–69 (discussing the statute’s purpose). We
also noted that Title III’s legislative history demonstrated that “Congress sought in
§ 2517 to serve ‘criminal law investigation and enforcement objectives,’” id. at 265
(quoting Am. Friends Serv. Comm. v. Webster, 720 F.2d 29, 73 (D.C. Cir. 1983)),
and observed, based on a survey of judicial decisions applying section 2517, that
“the uses of Title III information permitted by courts have all related to law
enforcement,” id. at 266. We therefore concluded that “the phrase ‘appropriate to
the proper performance of . . . official duties’” in section 2517 “authorizes
disclosure of Title III material only for purposes related to law enforcement.” Id. at
265, 267.
OIG argues that this conclusion does not apply to disclosures made to OIG in
connection with its investigations. It points out that our Title III Intelligence
Community opinion concerned disclosures of Title III information to members of
the intelligence community, who we concluded were not “investigative or law
enforcement officer[s]” within the meaning of sections 2510(7) and 2517. See OIG
2014 Memorandum at 11. As a result, our conclusion there—that Title III
information could be disclosed to members of the intelligence community in certain
circumstances—was based not on section 2517(1), but on section 2517(2), a
different exception that permits investigative or law enforcement officers to “use”
Title III information, including by disclosing it, “to the extent such use is appropriate
to the proper performance of [the] official duties” of the disclosing officer. 18
U.S.C. § 2517(2). As OIG observes, its agents are investigative or law enforcement
officers, and thus, unlike members of the intelligence community, may in principle
receive disclosures on the basis of their own “official duties” under section 2517(1),
rather than the duties of the disclosing officer. OIG argues that, as a result, the
conclusions in Title III Intelligence Community should not control the scope of the
disclosures it may receive. See OIG 2014 Memorandum at 11.
We disagree. Both sections 2517(1) and 2517(2) use the phrase “official duties,”
and as we explained in Title III Intelligence Community, “under basic canons of
statutory construction,” these “identical phrase[s] . . . must be interpreted consist-
ently” each time they appear in the same statute. 24 Op. O.L.C. at 265 (citing
Sullivan v. Stroop, 496 U.S. 478, 484–85 (1990); United Sav. Ass’n v. Timbers of
Inwood Forest Assocs., 484 U.S. 365, 371 (1988)). Indeed, the Title III Intelligence
Community opinion expressly analyzed section 2517(1) to determine how best to
interpret “official duties” for purposes of section 2517(2), and concluded, in the
discussion summarized above, that the phrase was best read in both sections as
limited to a relevant official’s law enforcement duties. See id. Nor is there any basis

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for understanding the “official duties” of a receiving officer in section 2517(1) to
have a broader scope than those of a disclosing officer in the same section, since the
same phrase applies equally to both kinds of officers. See 18 U.S.C. § 2517(1)
(requiring that disclosure assist “the official duties of the officer making or receiving
the disclosure” (emphasis added)). The interpretation of “official duties” in Title III
Intelligence Community thus extends to section 2517(1), and applies to the duties of
both receiving and disclosing officers.
For this reason, we disagree with OIG’s contention that “providing documents
to . . . OIG in the context of [any] duly authorized review would typically be
‘appropriate to the proper performance of the official duties of the official
making . . . the disclosure’” solely because of “that official’s duty to cooperate fully
with . . . OIG’s investigations and reviews.” OIG 2014 Memorandum at 11. The
duty to cooperate with OIG’s investigations is certainly an “official dut[y]” in the
broadest sense of that term. But that duty does not invariably “relate to law
enforcement.” Title III Intelligence Community, 24 Op. O.L.C. at 270. Indeed, we
explained in Title III Intelligence Community that neither an officer’s “general duty
to share [information] with another government entity,” nor the duty to respond to
a “proper request or demand by a congressional committee,” automatically
constitutes an “official dut[y]” within the meaning of section 2517(1). Id. at 264,
271. Similarly, OIG’s duty (as the potential receiving officer) to audit, investigate,
and review the Department’s activities does not automatically justify Title III
disclosure, because it too may not always relate to law enforcement. As a result, we
do not believe Department investigative or law enforcement officers can disclose
Title III information to OIG without regard to whether the disclosure would be
appropriate to the proper performance of an official duty related to law enforcement.

2.

OIG’s second argument is that even if (as we have concluded) “official duties”
are limited to duties related to law enforcement, OIG’s audits, investigations, and
reviews still qualify for disclosure, because they involve investigations of alleged
criminal wrongdoing or administrative (and potentially criminal) misconduct by
Department employees, or reviews of the Department’s criminal law enforcement
programs for purposes of “supervision and oversight.” OIG Title III Memorandum
at 2. For the reasons set forth below, we agree that many—but not all—of OIG’s
investigations and reviews are sufficiently related to law enforcement to support
disclosure based on either the official duties of the officer making the disclosure, or
the official duties of the officer receiving it.
We begin with those disclosures appropriate to the official duties of the officer
“making . . . the disclosure.” 18 U.S.C. § 2517(1). As explained above, numerous
officers within the Department qualify as “investigative or law enforcement
officer[s]” under section 2510(7). Their “official duties” related to law enforcement—
and, thus, the functions in connection with which they may disclose Title III

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information—vary according to their roles. Line-level officials, such as FBI agents
and Assistant U.S. Attorneys, perform duties related to law enforcement through on-
the-ground activities, such as investigating, making arrests for, and prosecuting
crimes. See id. § 2510(7). Higher-ranking Department officials perform duties related
to law enforcement when they direct and supervise those activities, such as by
approving search warrant and wiretap applications, managing criminal investigations,
and setting trial strategy—all functions that are integral parts of the prevention,
investigation, and prosecution of criminal offenses. See, e.g., United States v. Sells
Eng’g, Inc., 463 U.S. 418, 429 n.11 (1983) (recognizing that a prosecutor “conduct[s]
criminal matters” in his role as a “supervisor” as well as by appearing before a grand
jury); 18 U.S.C. § 2510(7) (stating that any attorney who is authorized to “participate
in the prosecution” of an enumerated offense is an investigative or law enforcement
officer). These officials may therefore disclose Title III information to OIG agents to
the extent that doing so would be appropriate to the proper performance of these
various functions, including “for the purpose of obtaining assistance” in carrying them
out. Title III Intelligence Community, 24 Op. O.L.C. at 269; see id. at 261. 8
In addition, in our view, members of Department leadership perform official
duties related to law enforcement when they supervise law enforcement activities
on a programmatic or policy basis—for example, when they issue guidelines for the
exercise of prosecutorial discretion, or set rules governing the conduct of line-level
officers. See, e.g., Memorandum for Heads of Department of Justice Components
and United States Attorneys from the Attorney General, Re: Federal Prosecution
Priorities (Aug. 12, 2013) (listing factors that prosecutors should consider in setting
prosecution priorities); FBI, Domestic Investigations and Operations Guide (Oct.
15, 2011) (establishing policies for the conduct of the FBI’s domestic
investigations). Although these programmatic and policy decisions are somewhat
removed from on-the-ground law enforcement activities, they frequently affect
these activities just as directly as supervisory decisions made on a case-by-case
basis: A Department policy prohibiting a particular law enforcement tactic or
mandating certain charging decisions, for instance, can affect the conduct of a large
number of investigations and prosecutions all at once. See Van de Kamp v.
Goldstein, 555 U.S. 335, 346 (2009) (stating that “supervisory prosecutors” are
entitled to the same degree of prosecutorial immunity when formulating “general
methods of supervision and training” as when taking “actions related to an indivi-
dual trial,” because both activities are “directly connected with the prosecutor’s
basic trial advocacy duties” (emphasis in original)). Such broad-based supervision
thus “relate[s] to law enforcement” in the ordinary sense of that phrase. Cf.

8
For example, if OIG investigated a Department employee for alleged criminal misconduct and then
referred the matter for prosecution, the prosecutor might subsequently seek to consult with OIG about its
investigation in the course of preparing or conducting the prosecution. During that consultation, the
prosecutor could disclose Title III information to OIG if doing so would help the prosecutor prepare or
conduct the prosecution.

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Disclosure of Grand Jury Material to the Intelligence Community, 21 Op.
O.L.C. 159, 171 (1997) (“Rule 6(e) Intelligence Community”) (stating that the
Attorney General’s “duty to enforce federal criminal law” within the meaning of
Fed. R. Crim. P. 6(e)(3)(A)(ii) includes the supervision of “a broad criminal law
enforcement program”).
Moreover, given the size of the Department, such programmatic and policy
supervision is a primary means by which the Attorney General and other
Department leadership officials evaluate and direct the Department’s law
enforcement activities, including its use of Title III authorities. If that supervision
did not constitute an “official dut[y]” within the meaning of section 2517(1), then
leadership officials would be unable to programmatically review the contents of
wiretaps in order to ensure that officers were exercising their Title III authorities
responsibly and lawfully, or to conduct general management and supervision of
Department law enforcement activities that made use of Title III materials. We think
it unlikely that Congress intended to handicap leadership officials in this way.
Indeed, interpreting Title III to impair programmatic or policy supervision of the
use of Title III authorities and materials would undermine Congress’s goal of
“protect[ing] privacy to the maximum extent possible, consistent with permitting
electronic surveillance for law enforcement purposes.” Title III Intelligence
Community, 24 Op. O.L.C. at 265; cf. United States v. Giordano, 469 F.2d 522, 527
(4th Cir. 1972) (noting that “[b]ecause of the delicate nature of the power to initiate
surveillance applications,” Congress took care to ensure that “the implementation”
of this authority “was reserved to” high-level leadership officials within the
Department). These considerations reinforce our conclusion that supervising law
enforcement activities on a programmatic or policy basis qualifies as an “official
dut[y]” related to law enforcement within the meaning of section 2517(1).
A Department leadership official may therefore disclose Title III materials to
OIG agents when doing so would be appropriate to the performance of that official’s
duty to supervise law enforcement activities on a programmatic or policy basis.
And, while we will not attempt to specify in the abstract all situations in which such
disclosures would be appropriate, we think that, in general, a wide range of OIG
investigations and reviews would likely assist Department leadership officials in
conducting such programmatic and policy supervision. One of the central purposes
of OIG’s reviews and investigations is to assist Department leadership in
supervising the Department: As noted above, Congress enacted the IG Act in part
to “provide a means for keeping the head of [each] [agency] . . . fully and currently
informed about problems and deficiencies relating to the administration of [the
agency’s] programs and operations and the necessity for and progress of corrective
action,” 5 U.S.C. app. § 2(3), and it assigned OIG the statutory duty of providing
reports and recommendations about such issues to Department leadership, see id.
§ 4(a)(5). Moreover, consistent with Congress’s purpose, “OIG’s reports of its
investigations and reviews have historically provided the Attorney General and
Deputy Attorney General with critical advice, information, and insights in

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connection with the exercise of their supervisory responsibilities over the
Department’s programs and operations.” Letter for Michael E. Horowitz, Inspector
General, from Sally Quillian Yates, Acting Deputy Attorney General, at 2 (Apr. 23,
2015) (“Yates Letter”). We therefore believe that it would generally be “appropriate
to the proper performance of the official duties” of a member of the Department’s
leadership to disclose Title III information to OIG agents in connection with
investigations or reviews of law enforcement programs and operations that could
inform supervisory decisions made by Department leadership about such programs
and operations; that is, investigations or reviews that concern, or are designed to
develop recommendations about, the manner in which the Department prevents,
investigates, or prosecutes crimes. 9
We now turn to disclosures that would be appropriate to the proper performance of
the official duties of the officer “receiving the disclosure”—in this case, OIG agents.
As noted above, this Office has previously concluded that OIG agents qualify as
“investigative officer[s]” under section 2510(7) by virtue of their authority to
investigate allegations of criminal wrongdoing—including offenses enumerated in
section 2516—by Department employees, contractors, and grantees. Investigative
Officers, 14 Op. O.L.C. at 109 (alteration in original). Because investigations of
alleged criminal wrongdoing are plainly “official duties” related to law enforcement,
section 2517(1) authorizes Department investigative and law enforcement officers to
disclose Title III information to OIG agents as “appropriate to the proper perform-
ance” of OIG’s investigations of alleged criminal wrongdoing by Department
employees, contractors, or grantees, including administrative misconduct investiga-
tions that have a reasonable prospect of identifying criminal wrongdoing.
We further believe that OIG officials perform “official duties” related to law
enforcement within the meaning of section 2517(1) when they conduct
investigations and reviews that could help Department leadership officials make
supervisory decisions regarding the Department’s law enforcement programs,
policies, and practices. As we have already noted, Congress placed OIG within the
Department of Justice, the nation’s principal law enforcement agency, see 5 U.S.C.
app. §§ 2(A), 12(2); 28 U.S.C. §§ 501 et seq., and assigned it the “duty and
responsibility” of reviewing the Department’s programs and operations, including
its programs and operations related to law enforcement, in order to help the Attorney

9
For example, the initial request for this opinion was prompted by three recent OIG reviews: a review
of Operation Fast and Furious (an investigation of firearms trafficking, conducted by the Department’s
Bureau of Alcohol, Tobacco, Firearms, and Explosives, that employed a controversial investigative
technique); a review of the FBI’s alleged misuse of the material witness statute, 18 U.S.C. § 3144, to
detain persons suspected of criminal conduct rather than potential witnesses; and a review of the FBI’s
use of National Security and Exigent letters. All three of these investigations concerned operational
questions related to the Department’s prevention, investigation, or prosecution of criminal conduct, and
all promised to directly inform Department leadership’s supervision of these activities. Department
leadership could therefore properly disclose Title III information to OIG in connection with all three
investigations under section 2517(1).

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General and her assistants better manage those programs and operations, 5 U.S.C.
app. § 4(a). OIG agents thus have responsibilities that are closely related to
Department leadership’s duty to supervise and manage the Department’s law
enforcement functions on a programmatic and policy basis, and are therefore
sufficiently related to law enforcement to constitute “official duties” under
section 2517(1).
We recognize that, in at least two respects, OIG reviews of Department law
enforcement operations have a more attenuated relationship to the actual conduct of
those operations than policy and programmatic supervision conducted by
Department leadership; but we do not think that either of these distinctions prevents
the conduct of such reviews from constituting an “official dut[y]” under section
2517(1). First, OIG provides information and recommendations that may inform
supervisory decisions made by Department leadership, but it does not—and
cannot—actually make operational decisions concerning the Department’s law
enforcement activities. See Authority to Conduct Regulatory Investigations, 13 Op.
O.L.C. at 62 (concluding that inspectors general may not conduct “investigations
constituting an integral part of the programs involved”); 5 U.S.C. app. § 9(a)
(prohibiting the Attorney General from transferring to OIG “program operating
responsibilities”). Neither the statutory phrase “official duties,” however, nor our
prior conclusion that this phrase encompasses duties that “relate to law
enforcement,” Title III Intelligence Community, 24 Op. O.L.C. at 271, requires that
such duties involve operational law enforcement responsibilities. Indeed, such a
requirement would exclude activities that are essential to the effective conduct of
core law enforcement functions. It is difficult to imagine how most law enforcement
duties, including the duty to set relevant policy and conduct programmatic
supervision, could be carried out responsibly without the benefit of the fact-finding
and evaluative work necessary to inform them. And it would make little sense to
conclude that, for example, the Attorney General and her assistants are not engaged
in “official duties” related to law enforcement, and thus cannot obtain relevant
Title III information, when they conduct a review of a law enforcement program
that relies on such information, but that the Attorney General is engaged in a law
enforcement duty, and thus may obtain such access, when she ultimately issues
direction or guidance about that program. We therefore think that the duty to review
and investigate law enforcement programs, like the duty to supervise those
programs on a programmatic or policy level, qualifies as an “official dut[y]” related
to law enforcement under section 2517(1).
Second, in providing its recommendations and analysis to the Attorney General,
OIG is insulated to some degree from the Attorney General’s direction and
supervision. See 5 U.S.C. app. § 3(a) (providing that the Attorney General may not
“prevent or prohibit the Inspector General from initiating, carrying out, or
completing any audit or investigation”); id. § 8E(a) (qualifying this limitation with
respect to “audits or investigations . . . which require access to [certain] sensitive
information”). Moreover, unlike other Department components or officials that

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conduct fact-finding investigations or make recommendations to Department
leadership, OIG exercises authority conferred directly by Congress in the IG Act,
rather than authority shared with or delegated by the Attorney General. Compare id.
§§ 4(a), 6(a) (granting various authorities to inspectors general) with 28 U.S.C.
§ 509 (vesting in the Attorney General, with certain minor exceptions, “[a]ll
functions of other officers of the [Department] and all functions of agencies and
employees of the [Department]”) and id. § 510 (authorizing the Attorney General
to “authoriz[e] the performance by any other officer, employee, or agency of the
[Department] of any function of the Attorney General”). OIG thus falls in important
respects outside the Department’s chain of command when it conducts
investigations and develops recommendations.
But OIG’s relative independence from the Department’s leadership does not in
our view undermine the value of its reviews or advice, or mean that its “official
dut[y]” to undertake such reviews and provide such advice is unrelated to the
ultimate supervisory law enforcement decisions made by Department leadership. To
the contrary, Congress created OIG precisely because it believed that establishing
an independent and objective entity to evaluate the Department’s programs and
operations would enhance the quality of such evaluations. See H.R. Rep. No. 100-
771, at 8–9 (1988) (explaining that a lack of independence impaired the
effectiveness of the Department’s internal audit and investigation components). We
are reluctant to conclude that the relative independence that Congress determined
would improve the value of OIG’s reviews at the same time renders them
insufficiently “related to law enforcement” to support disclosure of the Title III
information OIG needs to perform such reviews effectively.
Consequently, we believe that OIG investigations and reviews that concern, or
are designed to develop recommendations about, the manner in which the
Department prevents, investigates, or prosecutes crimes “serve criminal law
investigation and enforcement objectives” and “relate to law enforcement,” as our
Title III Intelligence Community opinion requires. 24 Op. O.L.C. at 265, 271
(internal quotation marks omitted). As a result, we think that OIG agents can obtain
Title III information directly from Department investigative and law enforcement
officers, for use in such investigations and reviews, based on the OIG agents’ own
“official duties” to conduct such reviews for the benefit of Department leadership—
and not simply from Department leadership based on the leadership officials’ duty
to supervise Department operations.
Finally, although we have concluded that the “official duties” of Department
leadership officials and OIG agents for Title III purposes encompass many of their
responsibilities, it does not follow that disclosing Title III materials in connection
with an OIG audit, investigation, or review is “appropriate to the proper
performance of the official duties” of Department leadership or OIG agents in every
instance. Cf. OIG 2014 Memorandum at 11. In particular, reviews that are either
unrelated to, or have only an attenuated connection with, the conduct of the
Department’s law enforcement programs and operations do not, in our view,

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constitute (or promise to assist with) “official duties” related to law enforcement.
For example, it is unlikely that an OIG review of one of the Department’s non-law
enforcement activities, such as civil litigation, would be sufficiently related to the
Department’s law enforcement programs and operations to justify disclosure under
section 2517(1), unless that review were aimed at uncovering criminal misconduct.
Similarly, we doubt that a routine financial audit of a Department component, or a
review of a component’s record-keeping practices, would justify disclosure of Title
III information under section 2517(1) merely because that component engaged in
law enforcement activities. Although sound finances and good record-keeping may
enable a law enforcement component to conduct its functions more effectively, such
an audit or investigation would not be aimed at evaluating the conduct of law
enforcement activities themselves, or uncovering criminal conduct by Department
employees. Construing section 2517(1) to permit disclosure of Title III information
in connection with reviews that are so tangentially related to law enforcement
activities would reduce that provision to the kind of “highly elastic limitation on
disclosure” among law enforcement and investigative officers that Congress did not
intend. Title III Intelligence Community, 24 Op. O.L.C. at 265; cf. Rural Housing
Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 81 (D.C. Cir. 1974) (rejecting a
construction of the exemption for “investigatory files compiled for enforcement
purposes” in the Freedom of Information Act, under which that exemption would
encompass records from a compliance audit that might result in administrative or
criminal sanctions, because that construction would cause the exemption to
“swallow[] up the Act”).
In sum, we conclude that section 2517(1) permits Department investigative or
law enforcement officers to disclose Title III information to OIG agents in
connection with many, but not all, OIG investigations and reviews. Line-level
Department officers may disclose Title III information to OIG agents to assist the
disclosing officers in preventing, investigating, or prosecuting criminal conduct.
Any Department officer may disclose Title III information to OIG agents to assist
OIG in its investigations of criminal misconduct by Department employees,
contractors, or grantees, including administrative misconduct investigations that
have a reasonable prospect of uncovering criminal violations. And because
Department leadership officials have a duty to conduct policy and programmatic
supervision of the Department’s law enforcement activities—and because OIG has
a duty to conduct investigations and reviews that could assist Department leadership
in carrying out that supervision—any Department officer may disclose Title III
information to assist OIG in performing such investigations and reviews where they
concern, or are designed to develop recommendations about, the manner in which
the Department prevents, investigates, or prosecutes crimes. Section 2517(1) does
not, however, permit OIG agents to obtain Title III information in connection with
reviews that are either unrelated to, or have only an attenuated relationship with, the
conduct of the Department’s law enforcement activities.

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B.

We now turn to OIG’s eligibility to obtain grand jury materials. Federal Rule of
Criminal Procedure 6(e) “codifies the traditional rule of grand jury secrecy,” which
is designed to ensure “the proper functioning of our grand jury system” by
encouraging prospective witnesses to “come forward” and “testify fully and
frankly,” lessening the “risk that those about to be indicted w[ill] flee, or w[ill] try
to influence individual grand jurors to vote against indictment,” and protecting the
innocent from “be[ing] held up to public ridicule.” Sells, 463 U.S. at 424–25
(quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218–19 (1979)). In
order to achieve these objectives, Rule 6(e) prohibits several specified classes of
individuals, including “attorney[s] for the government,” from disclosing “a matter
occurring before the grand jury.” Fed. R. Crim. P. 6(e)(2)(B). This rule of secrecy,
however, is not absolute: A court may authorize the disclosure of grand jury
materials in certain circumstances, id. 6(e)(3)(E), and an attorney for the
government may disclose information without court authorization pursuant to
several exceptions enumerated in subsection (3) of Rule 6(e).
OIG contends that these exceptions authorize its attorneys to receive grand jury
materials that are relevant to OIG investigations. Principally, OIG argues that
Department attorneys may disclose grand jury information to OIG under the
exception set forth in Rule 6(e)(3)(A)(i) (“exception (A)(i)”), which permits the
disclosure of grand jury information to “an attorney for the government for use in
performing that attorney’s duty.” See OIG 2015 E-mail; OIG 2014 Memorandum at
9–10; OIG Supplemental Memorandum at 19–26. In addition, although OIG does
not rely on the provision, we have considered whether OIG attorneys may obtain
grand jury information under the exception set forth in Rule 6(e)(3)(A)(ii)
(“exception (A)(ii)”), which authorizes disclosures to “any government person-
nel . . . that an attorney for the government considers necessary to assist in
performing that attorney’s duty to enforce federal criminal law.” For the reasons set
forth below, we conclude that exception (A)(i) does not authorize Department
attorneys to disclose grand jury materials to OIG attorneys, but that exception (A)(ii)
authorizes disclosures to OIG officials in a wide range of circumstances, including
in connection with OIG reviews that a member of Department leadership concludes
could assist her in supervising the Department’s criminal law enforcement programs
and operations. 10

10
OIG also argues that it is entitled to disclosure of some grand jury materials under subsection
6(e)(3)(D) (“exception (D)”), which authorizes an attorney for the government to disclose grand jury
material “involving foreign intelligence, counterintelligence . . . , or foreign intelligence information” to
a range of officials, including “federal law enforcement . . . official[s],” in order to “assist the official
receiving the information in the performance of that official’s duties.” See OIG Supplemental
Memorandum at 26–45. We believe the applicability of exception (D) to OIG presents a difficult
question. In light of our conclusion that exception (A)(ii) permits the Department leadership to provide

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1.

We begin with exception (A)(i). It provides:

Disclosure of a grand-jury matter—other than the grand jury’s
deliberations or any grand juror’s vote—may be made to . . . an
attorney for the government for use in performing that attorney’s duty.

Fed. R. Crim. P. 6(e)(3)(A)(i). A person may make a disclosure under this provision
without obtaining authorization from the court that impaneled the grand jury or
notifying the court of the disclosure. Cf. id. 6(e)(3)(B), (E).
OIG argues that exception (A)(i) authorizes Department attorneys to disclose
grand jury information to OIG attorneys for use in conducting any OIG audit,
investigation, or review. OIG observes that, in a prior memorandum, this Office
concluded that attorneys from the Department’s Office of Professional
Responsibility (“OPR”) could obtain grand jury information under exception (A)(i)
for use in investigating charges of misconduct by prosecutors or other Department
employees who had assisted in grand jury investigations. See OIG Supplemental
Memorandum at 20–22 (citing Memorandum for Michael Shaheen, Jr., Counsel,
OPR, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Disclosure of Grand Jury Material to the Office of Professional
Responsibility (Jan. 6, 1984) (“OPR Memorandum”)). OIG contends that because
its attorneys, like OPR attorneys, are authorized to assist the Attorney General in
supervising the Department, they qualify as “attorney[s] for the government” who
may receive disclosures under exception (A)(i). See OIG 2015 E-mail. OIG further
argues that its attorneys perform a “duty” closely analogous to OPR’s when they
investigate allegations of misconduct by the Department’s law enforcement officers.
OIG claims that as a result, exception (A)(i) likewise permits its attorneys to receive
grand jury information in connection with its investigations. See OIG Supplemental
Memorandum at 22–24.
The starting point for OIG’s argument is United States v. Sells Engineering. In
that case, the Supreme Court considered whether exception (A)(i) authorizes the
Department’s Civil Division to obtain grand jury materials for use in preparing and
litigating civil lawsuits. See 463 U.S. at 420. The Court concluded first that Civil
Division attorneys, like “virtually every attorney in the Department of Justice,” were
“within the class of ‘attorneys for the government’ to whom (A)(i) allows disclosure

OIG with access to grand jury material in a wide range of circumstances, see infra Part II.B.2, we decline
to address the scope of exception (D) here. Rule 6(e)(3) also includes exceptions to Rule 6(e)’s secrecy
requirements for (1) certain disclosures relating to banking matters and civil forfeiture authorized by 18
U.S.C. § 3322, see Fed. R. Crim. P. 6(e)(3)(A)(iii); (2) disclosures to another federal grand jury, see id.
6(e)(3)(C)); and (3) disclosures authorized by a court under certain conditions, see id. 6(e)(3)(E). We
likewise do not address the application of those exceptions in this opinion.

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without a court order.” Id. at 426, 427–28. The Federal Rules of Criminal Procedure,
the Court explained, define “attorneys for the government” to include “‘authorized
assistants of the Attorney General’”; and the Attorney General may direct almost
“any attorney employed by the Department”—including Civil Division attorneys—
“to conduct ‘any kind of legal proceeding, civil or criminal, including grand jury
proceedings.’” Id. at 428 (quoting Fed. R. Crim. P. 54(c) (1983); 28 U.S.C.
§ 515(a)). 11 It was therefore “immaterial,” in the Court’s view, that “certain
attorneys happen[ed] to be assigned to a unit called the Civil Division, or that their
usual duties involve[d] only civil cases.” Id. Because such attorneys,
notwithstanding such an assignment, could be detailed or assigned to conduct
“criminal grand jury investigation[s],” they counted as “attorneys for the
government” under the Rules. Id.
Nonetheless, the Court held that the use of grand jury information for civil
purposes—even by an “attorney for the government” exercising her official
duties—did not constitute “use in the performance of such attorney’s duty” within
the meaning of exception (A)(i). 12 In the Court’s view, Congress did not intend
exception (A)(i) to mean “that any Justice Department attorney is free to rummage
through the records of any grand jury in the country, simply by right of office,” id.,
or to authorize access to grand jury material to serve “the general and multifarious
purposes of the Department of Justice,” id. at 429. The Court based its conclusion
primarily on the purpose behind exception (A)(i). It explained that Rule 6(e) permits
government attorneys to obtain otherwise secret grand jury materials only “because
both the grand jury’s functions and their own prosecutorial duties require it.” Id.
(emphasis in original); see id. at 428–29 (quoting Fed. R. Crim. P. 6(e) advisory
committee’s note (1944)). A prosecutor working on a criminal matter “needs to
know what transpires before the grand jury,” in order to “bring[] matters to the
attention of the grand jury,” “advise[] the lay jury on the applicable law,” and
“determine whether it is in the interests of justice to proceed with prosecution.” Id.
at 430. A civil attorney’s “need for access,” in contrast, “is ordinarily nothing more
than a matter of saving [the] time and expense” of civil discovery. Id. at 431. As a
result, “disclosure for civil use [is] unjustified by the considerations supporting
prosecutorial access.” Id. Moreover, the Court continued, granting attorneys the
right to obtain grand jury materials for use in civil litigation would “threaten[] to do
affirmative mischief.” Id. Such a broad right of access might discourage witnesses
from testifying before the grand jury “for fear that [they] will get [themselves] into
trouble in some other forum,” “tempt[]” prosecutors to “manipulate the grand jury’s
powerful investigative tools . . . to elicit evidence for use in a civil case,” and

11
Rule 54(c) was transferred to Rule 1(b)(1) when the Rules were amended in 2002.
12
The language of this provision has been modified slightly since Sells. Compare Fed. R. Crim. P.
6(e)(3)(A)(i) (1979) (“an attorney for the government for use in the performance of such attorney’s duty”)
with Fed. R. Crim. P. 6(e)(3)(A)(i) (2015) (“an attorney for the government for use in performing that
attorney’s duty”). We believe this change is immaterial for purposes of this opinion.

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“subvert the limitations applied outside the grand jury context on the Government’s
powers of discovery and investigation.” Id. at 432–33.
Significantly, the Court made clear that it did “not mean to suggest that (A)(i)
access to grand jury materials is limited to those prosecutors who actually did appear
before the grand jury.” Id. at 429 n.11 (emphasis in original). Rather, the Court
noted that “anyone working on a given prosecution would clearly be eligible under
[the Federal Rules] to enter the grand jury room,” even if such a person did not do
so. Id. (emphasis in original). Accordingly, the Court found that the intent of the
rule was to authorize “every attorney (including a supervisor) who is working on a
prosecution [to] have access to grand jury materials, at least while he is conducting
criminal matters,” in order “to facilitate effective working of the prosecution team.”
Id. (emphasis omitted).
In the wake of the Supreme Court’s decision in Sells, OPR asked this Office
whether its attorneys could continue to obtain access to grand jury materials under
exception (A)(i) when “investigating charges that prosecutors or Department
employees assisting grand jury investigations ha[d] engaged in misconduct.” OPR
Memorandum at 1. In an unpublished memorandum that forms the basis for OIG’s
argument here, we advised that OPR attorneys could “probably” do so. Id. at 2. We
acknowledged that “the broad language in Sells, on its face, would appear to prohibit
automatic disclosure” to OPR attorneys, because they “would usually be using the
materials for civil, not criminal, purposes”—i.e., in connection with administrative
misconduct proceedings—and because “they are not the ‘attorneys who conduct the
criminal matters to which the materials pertain.’” Id. at 4 (quoting Sells, 463 U.S. at
427). Nonetheless, we observed that two “strong arguments [could] be made” in
support of OPR’s eligibility for disclosure under exception (A)(i). Id.
First, we noted that permitting the automatic disclosure of grand jury materials
to OPR attorneys would not “raise[] the same type of policy concerns that were
relied upon by the Sells Court.” Id. at 6. The Civil Division attorneys in Sells, we
explained, had sought grand jury materials “for possible use in civil actions against
the targets of the grand jury inquiry,” while OPR attorneys sought those materials
“to oversee the conduct of the government attorneys and investigators assisting the
grand jury.” Id. at 4–5. Thus, unlike in Sells, “only the conduct of government
prosecutors,” and not the conduct of the targets of the grand jury inquiry, “would be
subject to scrutiny.” Id. at 5. As a result, disclosing grand jury materials to OPR
attorneys would neither “hinder[]” the “willingness of witnesses to testify” nor
“create an incentive for criminal attorneys to abuse the grand jury process in order
to pursue civil discovery.” Id.
Second, we believed that disclosures to OPR attorneys would “fall generally
within the supervisor exception” articulated in Sells. Id. at 7. We noted that the Sells
Court had recognized that grand jury materials could be “disclosed to some persons
who may not technically be considered ‘prosecutors,’ such as Department
‘supervisors’ and members of the ‘prosecution team,’ but who nevertheless are
indispensable to an effective criminal law enforcement effort.” Id. at 6 (citation

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omitted) (quoting Sells, 463 U.S. at 429 n.11). We thought this exception “would
clearly cover certain exchanges [of grand jury information]” that were “analogous”
to disclosures to OPR. Id. In particular, we thought there was “no question” that
prosecutors could “ask ethics counselors to accompany them into the grand jury
room to give direct counsel when problems [arose],” or that prosecutors could
“disclose grand jury materials to their superiors,” as well as to “ethics attorneys”
advising those supervisors, in order “to seek their instructions on ethical
responsibilities.” Id. at 7. We therefore thought it probable, although “not free from
doubt,” that, by the same logic, Department attorneys could obtain grand jury
materials “to evaluate in the course of a separate administrative investigation the
propriety of prior conduct.” Id. We reasoned that, “[t]o perform properly their
oversight role, supervisors not only must be able to review grand jury materials for
purposes of instructing subordinates on future activities, but also must be able to
evaluate that conduct once a course of action has been set.” Id. “A supervisor’s
access to grand jury materials,” we explained, “should not be terminated artificially
once his subordinates have acted, but should properly include post mortem review
of his staff’s activities.” Id. at 7–8. We further noted that OPR attorneys are, by
regulation, “delegee[s] of the Attorney General for purposes of overseeing and
advising with respect to the ethical conduct of department attorneys.” Id. at 8 (citing
28 C.F.R. § 0.39a (1983)). Accordingly, we concluded that it was appropriate for
OPR attorneys to review grand jury materials in order to “make recommendations
to the Attorney General or other supervisors regarding conduct in particular cases.”
Id. 13
OIG argues that it is eligible to receive grand jury materials under exception
(A)(i) for much the same reason as OPR attorneys. OIG asserts that its attorneys
qualify as “attorney[s] for the government” because they are charged with
“assisting the [Attorney General] in [her] capacity of overseeing the operations of
the Department.” OIG 2015 E-mail. And OIG argues that its investigations and
reviews are comparable to the work performed by OPR attorneys, and thus qualify
as “dut[ies]” for which OIG may receive grand jury information, because OIG,
like OPR, performs those investigations to “oversee[] and advis[e] with respect to
the ethical conduct” of Department personnel, and to assist members of the
Department’s leadership in “evaluat[ing] . . . the propriety of prior conduct” and
improving the Department’s law enforcement policies and programs. OPR
Memorandum at 7–8; see OIG Supplemental Memorandum at 22–24.
We think that OIG is correct that its duties are similar to OPR’s in important
respects; indeed, for the reasons described in Part II.B.2 below, we believe that OIG

13
Recognizing, however, that the broad language in Sells could be read to prohibit automatic
disclosure of grand jury materials to OPR attorneys, we suggested “as a prudential matter” that OPR seek
a court order sanctioning disclosure under exception (A)(i) in the first few cases in which it reviewed
grand jury materials so that it might “obtain some clear guidance from the courts on whether the
automatic exemption may be employed.” OPR Memorandum at 9.

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personnel may obtain grand jury information under exception (A)(ii) in part because
of their responsibility to assist Department leadership in supervising the
Department’s law enforcement functions. See infra pp. 33–34. But we disagree that
OIG attorneys qualify as “attorney[s] for the government” within the meaning of
the Federal Rules. As we explain below—and as both Sells and numerous courts of
appeals have confirmed—an “attorney for the government” under the Rules must
not merely assist the Attorney General, but must (at a minimum) be capable of
conducting criminal proceedings on behalf of the government. Because the IG Act
prohibits OIG personnel from engaging in such activities, OIG attorneys cannot
qualify for disclosure under exception (A)(i).
The Rules define an “attorney for the government” as:

(A) the Attorney General or an authorized assistant;

(B) a United States attorney or an authorized assistant;

(C) when applicable to cases arising under Guam law, the Guam
Attorney General or other person whom Guam law authorizes to act
in the matter; and

(D) any other attorney authorized by law to conduct proceedings
under these rules as a prosecutor.

Fed. R. Crim. P. 1(b)(1). Most of the categories listed in this definition clearly
consist of attorneys who are authorized to conduct criminal proceedings on behalf
of the government. The Attorney General is authorized to “conduct any kind of legal
proceeding, civil or criminal, including grand jury proceedings,” 28 U.S.C.
§ 515(a); United States Attorneys are charged with “prosecut[ing] . . . all offenses
against the United States,” id. § 547(1); attorneys for the government acting in
Guam criminal cases must be “authorize[d] to act in th[os]e matter[s]” under Guam
law; and “other attorney[s]” must be “authorized by law to conduct proceedings
under [the Rules] as a prosecutor.” Only the “authorized assistant[s]” to the Attorney
General and United States Attorneys described in subparagraphs (A) and (B) are not
in plain terms limited to attorneys who are authorized to represent the government
in criminal proceedings. In isolation, the phrase “authorized assistant” might be read
to encompass persons who “assist[]” the Attorney General or a United States
Attorney in ways other than by conducting prosecutions (such as by conducting the
kinds of investigations of misconduct or law enforcement programs undertaken by
OIG). Read in context, however, we think that the term “authorized assistant” in
subparagraphs (A) and (B) refers, like the other categories in Rule 1(b)(1), to
prosecutors or other attorneys with authority to conduct criminal proceedings on the
government’s behalf. This is so for at least three reasons.
First, the text of Rule 1(b)(1) supports this reading. The word “authorized” in
“authorized assistant” must be read in light of the meaning it has in the other parts

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of the same provision. As noted, subsection (C) refers to persons “whom Guam law
authorizes to act in [a] [criminal] matter,” and subsection (D) refers to other
attorneys “authorized by law to conduct proceedings under these rules as a
prosecutor” (emphases added). Because “similar language contained within the
same section of a statute must be accorded a consistent meaning,” Nat’l Credit
Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501 (1998), it is
reasonable to presume that Congress used the term “authorized” in a similar sense
in subsections (A) and (B), to refer to official authorization to conduct proceedings
under the Rules as a prosecutor, or otherwise to “act” in a criminal proceeding in an
official capacity. As noted above, moreover, the other categories of government
attorneys listed in Rule 1(b)(1) are clearly authorized to conduct criminal
proceedings. In that context, the term “authorized assistant” is best read to refer as
well to attorneys who are authorized to conduct criminal proceedings. See United
States v. Williams, 553 U.S. 285, 294 (2008) (noting that “a word is given more
precise content by the neighboring words with which it is associated”). Additionally,
the catchall category set forth in subsection (D) refers to “any other attorney
authorized by law to conduct proceedings under these rules as a prosecutor”
(emphasis added). That formulation reinforces our conclusion that the preceding
categories in the Rule consist of attorneys authorized by law to conduct proceedings
under the rules as a prosecutor. See Paroline v. United States, 134 S. Ct. 1710, 1721
(2014) (“Here, [18 U.S.C.] § 2259(b)(3)(F) defines a broad, final category of ‘other
losses suffered . . . as a proximate result of the offense.’ That category is most
naturally understood as a summary of the type of losses covered—i.e., losses
suffered as a proximate result of the offense.” (ellipsis in original)).
Second, consistent with this reading, Sells and many lower court decisions have
held or assumed that an “authorized assistant” to the Attorney General must be an
attorney who is, or at least may be, authorized to conduct criminal proceedings on
the government’s behalf. As noted, Sells concluded that Civil Division attorneys
qualify as “authorized assistant[s] of the Attorney General” because the Attorney
General may assign them to “conduct a criminal grand jury investigation” or other
criminal matters. Sells, 463 U.S. at 428 (citing 28 U.S.C. §§ 515(a), 518(b)). The
Attorney General’s authority to reassign attorneys in this way would be pertinent
only if the Court thought that an “authorized assistant” had to be capable of
conducting criminal matters on the government’s behalf. Courts of appeals have
interpreted the phrase even more strictly. The Sixth Circuit, for instance, has held
that “an ‘authorized assistant of the Attorney General’ is one whose superiors have
assigned him or her to work in some official capacity on the criminal proceeding.”
United States v. Forman, 71 F.3d 1214, 1220 (6th Cir. 1995) (emphasis omitted).
Other courts of appeals have reached similar conclusions. See Sells, 463 U.S. at 429
n.12 (citing courts of appeals that had “held or assumed that” even a Criminal
Division attorney could qualify as an “‘authorized assistant of the Attorney
General’” only if she had actually been “authorized to conduct grand jury
proceedings” (emphasis in original)); United States v. Fort, 472 F.3d 1106, 1111

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(9th Cir. 2007) (“Rule 1(b)(1) defines restrictively the term ‘attorney for the
government’ to mean (as relevant here) a federal prosecutor.”); United States v.
Balistrieri, 779 F.2d 1191, 1207 (7th Cir. 1985) (holding that attorneys employed
by the Department’s Criminal Division were “authorized assistants of the Attorney
General” and thus “attorneys for the government” because they “were assigned to
assist the United States Attorney for the Eastern District of Wisconsin in invest-
igating and prosecuting” a criminal case). There is some apparent tension between
the conclusion in Sells that any attorney who could be authorized to conduct
criminal proceedings qualifies as an “attorney for the government,” see 463 U.S.
at 428, and the conclusions of other courts that an actual authorization is required,
see, e.g., Forman, 71 F.3d at 1220. But we need not attempt to resolve this tension
here, because at a minimum, all courts agree that an attorney who is incapable of
being authorized to conduct criminal proceedings on the government’s behalf is not
an “authorized assistant” for purposes of the Federal Rules.
Third, numerous provisions of the Federal Rules make clear that an “attorney for
the government,” including an authorized assistant to the Attorney General, refers
to an attorney capable of representing the government in criminal proceedings—a
meaning that makes sense given the Rules’ purpose of establishing the “procedure”
governing “all criminal proceedings in the United States [courts].” Fed. R. Crim. P.
1(a)(1); see Robinson v. Shell Oil Co., 519 U.S. 337, 345 (1997) (resolving the
meaning of a statutory term by considering “[t]he broader context provided by other
sections of the statute”). More than 50 provisions of the Rules use the term “attorney
for the government,” and all are consistent with this understanding. For example,
Rule 11(c) provides that “[a]n attorney for the government and the defendant’s
attorney, or the defendant when proceeding pro se, may discuss and reach a plea
agreement.” Fed. R. Crim. P. 11(c)(1). Rule 12.1 provides that “[a]n attorney for the
government may request in writing that the defendant notify an attorney for the
government of any intended alibi defense,” id. 12.1(a)(1), and that, following such
a request, “the defendant must serve written notice on an attorney for the
government of any intended alibi defense,” id. 12.1(a)(2). Rule 14 provides that
“[b]efore ruling on a defendant’s motion to sever [his trial from a codefendant’s],
the court may order an attorney for the government to deliver to the court for in
camera inspection any defendant’s statement that the government intends to use as
evidence.” Id. 14(b). And Rule 26.2 provides that “[a]fter a witness other than the
defendant has testified on direct examination, the court, on motion of a party who
did not call the witness, must order an attorney for the government or the defendant
and the defendant’s attorney to produce . . . any statement of the witness that is in
their possession and that relates to the subject matter of the witness’s testimony.”
Id. 26.2(a). A person who lacks authority to appear in a criminal matter on behalf of
the government could not perform these or many other functions assigned to
“attorney[s] for the government” by the Federal Rules.
OIG attorneys cannot qualify as “authorized assistant[s],” or any other type of
“attorney for the government,” under this standard. As an initial matter, nothing in the

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IG Act authorizes OIG attorneys to conduct criminal proceedings. See 5 U.S.C. app.
§§ 4(a), 6(a), 8E(b) (listing OIG’s duties and authorities). Ordinarily, 28 U.S.C. § 515
and related statutes permit the Attorney General to delegate to any “officer of the
Department of Justice,” or to any “attorney specially appointed by the Attorney
General,” the authority to conduct criminal proceedings on the government’s behalf.
28 U.S.C. § 515(a); see also id. §§ 518(b), 543(a). But section 9(a) of the IG Act
provides that the Attorney General may transfer “functions, powers, [and] duties” to
OIG only if those functions are “properly related to the functions of [OIG],”
transferring them would “further the purposes of th[e] Act,” and the functions do not
constitute “program operating responsibilities.” 5 U.S.C. app. § 9(a), (a)(2); see also
Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. at 61 (stating that the
IG Act prohibits inspectors general from “conduct[ing] investigations constituting an
integral part of the programs involved” (internal quotation marks omitted)). The duty
to conduct grand jury or other criminal proceedings on behalf of the United States is
unrelated to OIG’s statutory functions of investigation, auditing, and oversight. See
5 U.S.C. app. § 4(a). Transferring criminal litigating responsibilities to OIG would
undermine its independence—preservation of which is one of the principal concerns
of the Act—by making its attorneys “responsible official[s]” who “set and implement
[Department] policy” at the same time as they oversee and critique it. Authority to
Conduct Regulatory Investigations, 13 Op. O.L.C. at 61. And the conduct of criminal
litigation is one of the Department’s central program operating responsibilities. See
28 U.S.C. §§ 515(a), 516, 519. The plain language of section 9(a) therefore bars the
Attorney General from assigning this responsibility to OIG.
The IG Act’s legislative history further supports this reading of section 9(a).
When Congress initially enacted the IG Act in 1978, the House Report explained
that “Inspector[s] General would not conduct prosecutions or decide whether
prosecutions should or should not be conducted.” H.R. Rep. No. 95-584, at 13
(1977). And when Congress extended the IG Act to the Department in 1988, the
House Report responded to concerns that OIG’s creation would interfere with the
Department’s law enforcement functions: “[P]rosecution of suspected violations of
Federal law and the conduct of litigation are parts of the basic mission or program
functions of the Department of Justice,” the Report explained, “[and] the [IG] [A]ct
does not authorize inspectors general to engage in program functions.” H.R. Rep.
No. 100-771, at 9. “[I]n fact,” the Report continued, “[section 9(a)] specifically
prohibits the assignment of such responsibilities to an inspector general.” Id. at 9 &
n.48. The Conference Report accompanying the 1988 amendments likewise
indicated that OIG personnel would not be permitted to engage in prosecutorial
functions, noting that “[t]he conferees do not intend that the IG should render
judgments on the exercise of prosecutorial or other litigative discretion in a
particular case or controversy.” H.R. Rep. No. 100-1020, at 25 (Conf. Rep.).
Because section 9(a) prohibits the Attorney General from transferring to OIG the
authority to conduct criminal proceedings, the Attorney General may not assign
OIG that authority pursuant to 28 U.S.C. § 515 or similar general delegation

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statutes. As we have noted, different statutes that regulate the same subject matter
must be read in pari materia and given full effect to the extent possible. See Morton,
417 U.S. at 551. If a general delegation statute such as 28 U.S.C. § 515 were
construed to permit assignments to OIG that section 9(a) prohibits, then section 9(a)
would be effectively inapplicable to the Department and many agencies subject to
the IG Act, because numerous statutes grant the heads of agencies equally broad or
broader authority to delegate their statutory functions to subordinate officers. See,
e.g., 28 U.S.C. § 510 (providing that the Attorney General may authorize “any other
officer” of the Department to perform “any function of the Attorney General”
(emphases added)); 6 U.S.C. § 112(b)(1) (granting similar authority to the Secretary
of Homeland Security); 20 U.S.C. § 3472 (Secretary of Education); 31 U.S.C.
§ 321(b)(2) (Secretary of the Treasury). It is in our view implausible that Congress
intended section 9(a) to have such a limited effect, particularly in light of the
legislative history expressing Congress’s belief that this provision would in fact
prohibit OIG from engaging in prosecution or litigation. See H.R. Rep. No. 100-
1020, at 25 (Conf. Rep.); H.R. Rep. No. 100-771, at 9; H.R. Rep. No. 95-584, at 13.
We therefore think that, given the absence of any indication of congressional intent
to the contrary, section 9(a)—a specific provision limiting the transfer of functions
to inspectors general—is best construed as an exception to general delegation
provisions, like 28 U.S.C. § 515(a), that broadly authorize the assignment of the
Department’s functions to any subordinate officer or attorney. See infra p. 49
(explaining that if “a general permission or prohibition is contradicted by a specific
prohibition or permission,” then “the specific provision is construed as an exception
to the general one,” absent strong “textual indications that point in the other
direction” (quoting RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct.
2065, 2071–72 (2012))).
As a result, while the analysis in our OPR memorandum might inform the
question whether OIG investigations and reviews qualify as “dut[ies]” justifying
disclosure of grand jury materials under exception (A)(i), OIG attorneys are unlike
OPR attorneys in at least one critical respect. Like “virtually every attorney in the
Department of Justice,” OPR attorneys may in principle be delegated the Attorney
General’s authority to conduct criminal proceedings for the Department. Sells, 463
U.S. at 426; see id. at 428; OPR Memorandum at 8 (noting that OPR attorneys are
“delegee[s] of the Attorney General”). But OIG attorneys, as we have discussed, are
barred from being assigned this authority under the IG Act. Consequently, although
OIG personnel may seek to use grand jury materials in a manner that parallels the
use discussed in our OPR Memorandum, they do not fall within the category of
persons—attorneys for the government—who may obtain disclosure under
exception (A)(i). 14

14
OIG contends that multiple district court decisions have determined that OIG attorneys qualify for
disclosure under exception (A)(i), and questions whether this Office may render a legal opinion

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2.

Because exception (A)(i) does not authorize the disclosure of grand jury
materials to OIG, we have also considered whether a separate exception would
authorize that disclosure. Exception (A)(ii) provides:

Disclosure of a grand-jury matter—other than the grand jury’s
deliberations or any grand juror’s vote—may be made to . . . any
government personnel—including those of a state, state subdivision,
Indian tribe, or foreign government—that an attorney for the
government considers necessary to assist in performing that attorney’s
duty to enforce federal criminal law.

Fed. R. Crim. P. 6(e)(3)(A)(ii). Like disclosure under exception (A)(i), disclosure
under this exception may be made without prior judicial approval. However, unlike

disagreeing with those decisions. See OIG 2014 Memorandum at 15 & att. The decisions OIG cites are
one-page memorandum orders, issued by a single district judge, that authorized disclosure to OIG
attorneys under exception (A)(i). The relevant parts of the orders state, in their entirety, that because a
particular OIG investigation of “alleged misconduct before the grand jury” was “supervisory in nature
with respect to ethical conduct of Department employees,” “disclosure of grand jury materials to the OIG
constitutes disclosure to ‘an attorney for the government for use in the performance of such attorney’s
duty’” under exception (A)(i). In re Matters Occurring Before the Grand Jury Impaneled July 16, 1996,
Misc. No. 39 (W.D. Okla. June 4, 1998) (Russell, C.J.) (order) (quoting Fed. R. Crim. P. 6(e)(3)(A)(i));
id. (Dec. 8, 1998) (same); see id. (Nov. 15, 1999) (“Because in taking such actions, these Department
personnel would be engaged in a supervisory function, disclosure of grand jury materials to them
constitutes disclosure to ‘an attorney for the government for use in the performance of such attorney’s
duty.’”). Neither these orders, nor the underlying Department filings that sought disclosure, discussed or
analyzed the meaning of the terms “attorney for the government” or “authorized assistant.” As the
Supreme Court has explained, a “‘decision of a federal district court judge is not binding precedent in
either a different judicial district, the same judicial district, or even upon the same judge in a different
case.’” Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011) (quoting 18 J. Moore et al., Moore’s Federal
Practice § 134.02[1][d] (3d ed. 2011)). Nor is a district court decision binding on the Executive Branch
in activities unrelated to the case in which the court’s decision was rendered. See In re Exec. Office of
the President, 215 F.3d 20, 24–25 (D.C. Cir. 2000) (per curiam). Consistent with this rule, the Office has
previously disagreed with district court decisions after independently analyzing the questions presented
and reaching contrary conclusions, including where the court espoused a view previously advanced by
the Department. See, e.g., Whether Proposals by Illinois and New York to Use the Internet and Out-of-
State Transaction Processors to Sell Lottery Tickets to In-State Adults Violate the Wire Act, 35 Op.
O.L.C. __, at *3–4 (Sept. 20, 2011) (available at http://www.justice.gov/olc/opinions.htm) (disagreeing
with the decisions of courts that had adopted a position previously advanced by the Criminal Division);
Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an
Appropriation, 25 Op. O.L.C. 33, 52 (2001) (disagreeing with the “unexplained decision” of a district
court that appeared to interpret the Antideficiency Act in a manner “inconsistent with the Antideficiency
Act’s legislative history and evolution and with the rest of the (limited) caselaw”); Authority of the
President to Remove the Staff Director of the Civil Rights Commission and Appoint an Acting Staff
Director, 25 Op. O.L.C. 103, 105 (2001) (disagreeing with a district court decision subsequently vacated
as moot). For the reasons offered above, we respectfully disagree with the district court’s conclusion that
OIG attorneys may qualify for disclosure under exception (A)(i) solely because they perform supervisory
functions.

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in the case of disclosures under exception (A)(i), the Rules provide that an attorney
for the government must “promptly provide the court that impaneled the grand jury
with the names of all persons to whom a disclosure has been made” under exception
(A)(ii), and “certify that the attorney has advised those persons of their obligation
of secrecy under this rule.” Id. 6(e)(3)(B). And a person to whom information is
disclosed under this exception “may use that information only to assist an attorney
for the government in performing that attorney’s duty to enforce federal criminal
law.” Id.
OIG employees clearly qualify as “government personnel” who may receive
disclosures under this exception. The language of that phrase is broad—particularly
when considered in light of the Rule’s explanation that it extends to personnel of a
“state, state subdivision, Indian tribe, or foreign government”—and comfortably
encompasses OIG employees. Id. 6(e)(3)(A)(ii). In addition, we have previously
observed that the use of the permissive phrase “considers necessary” in exception
(A)(ii) suggests 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.” Disclosure of Grand Jury
Matters to the President and Other Officials, 17 Op. O.L.C. 59, 62 (1993)
(“Disclosure to the President”). 15 Consistent with this broad understanding of the
term, we have advised that exception (A)(ii) permits disclosures to law enforcement
officers, members of the intelligence community, and senior Administration
officials, among others. See Rule 6(e) Intelligence Community, 21 Op. O.L.C. at
161; Disclosure to the President, 17 Op. O.L.C. at 61. See generally Sells, 463 U.S.
at 436 (explaining that exception (A)(ii) was prompted by the need to make
disclosures to individuals such as “accountants” and “handwriting experts”); Fed R.
Crim. P. 6 advisory committee’s note (1977 Amendments) (“The phrase ‘other
government personnel’ includes, but is not limited to, employees of administrative
agencies and government departments.”). OIG employees are likewise “government
personnel” who may receive disclosures under exception (A)(ii).
In addition, a wide variety of Department attorneys qualify as “attorney[s] for
the government” who may authorize disclosures under this exception. As we have
discussed, that term includes the Attorney General, United States Attorneys, their
“authorized assistant[s],” and “any other attorney authorized by law to conduct
proceedings under these rules as a prosecutor”—and thus extends to any Department
attorney who is (and perhaps any Department attorney who may be) authorized to

15
Consistent with our prior opinions, we presume that Congress intended “necessary” in this context
to mean useful or conducive, rather than strictly required. See Disclosure to the President, 17 Op. O.L.C.
at 61 (stating that exception (A)(ii) permits disclosure “for purposes of obtaining . . . assistance”); Rule
6(e) Intelligence Community, 21 Op. O.L.C. at 161 (similar); cf., e.g., McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 413, 415 (1819) (construing the word “necessary” in the Necessary and Proper Clause
to mean “convenient,” “useful,” or “conducive”); Cellular Telecomms. & Internet Ass’n v. FCC, 330
F.3d 502, 504 (D.C. Cir. 2003) (deferring to agency’s interpretation of “necessary” in telecommuni-
cations statute as referring to “a strong connection” between means and ends).

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conduct criminal proceedings on behalf of the federal government. Fed. R. Crim. P.
1(b)(1); see supra pp. 25–27.
The scope of permissible disclosure to OIG officials under exception (A)(ii) thus
turns on the circumstances in which a Department attorney—including a member
of Department leadership—may reasonably “consider[]” an OIG official “necessary
to assist in performing that attorney’s duty to enforce federal criminal law.” Fed. R.
Crim. P. 6(e)(3)(A)(ii). This Office has previously noted several relatively
straightforward ways in which this language limits the permissible scope of
disclosures. To begin with, consistent with the plain language of this provision, a
Department attorney may make a disclosure only for the purpose of obtaining
assistance in performing her duty to enforce “federal criminal law.” Id. (emphasis
added). Thus, an attorney may not authorize disclosures under exception (A)(ii) to
assist in the performance of her civil or administrative duties, or to senior White
House policymakers for purposes of “general policymaking.” Disclosure to the
President, 17 Op. O.L.C. at 61–62, 64; see Sells, 463 U.S. at 427. We have also
observed that, because disclosures under exception (A)(ii) may be made only to a
person that a Department attorney “considers necessary to assist in performing that
attorney’s duty,” Fed. R. Crim. P. 6(e)(3)(A)(ii) (emphasis added), an attorney may
not make disclosures to assist in the performance of duties she herself does not hold.
See Rule 6(e) Intelligence Community, 21 Op. O.L.C. at 171. In addition, we have
advised that the same phrase requires that any disclosure be made “in accordance
with an actual determination made by an attorney.” Memorandum for Philip B.
Heymann, Assistant Attorney General, Criminal Division, and William P. Tyson,
Acting Director, Executive Office for United States Attorneys, from John M.
Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Computerized
Preservation and Use of Grand Jury Material at 4 (May 2, 1980). Hence, while an
attorney has “broad leeway” in judging what disclosures are proper, Disclosure to
the President, 17 Op. O.L.C. at 62 (citing S. Rep. No. 95-354, at 8 (1977)), she must
always exercise her independent judgment before authorizing the disclosure of
grand jury information to a particular recipient. Thus, for example, we concluded
that an attorney could not place grand jury materials on a computerized database
that law enforcement officers could use for purposes of which the attorney was
unaware. See Memorandum for Roger B. Clegg, Acting Assistant Attorney General,
Office of Legal Policy, and John Mintz, Assistant Director and Legal Counsel, FBI,
from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Authority of FBI Agents to Exchange Grand Jury Material Pursuant
to Rule 6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure (Feb. 14, 1984)
(“Shanks Memorandum”).
Within these limitations, we believe exception (A)(ii) permits Department
attorneys to authorize the disclosure of grand jury information to OIG both to assist
with individual law enforcement actions and, where the disclosures are authorized
by members of the Department leadership, to assist in the direction and supervision
of the Department’s law enforcement programs and operations. First, because an

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attorney’s “duty to enforce federal criminal law” plainly includes his duty to
prosecute criminal offenses, exception (A)(ii) permits Department attorneys to
authorize disclosure of grand jury materials to OIG in connection with OIG
investigations and reviews those attorneys believe could assist them with ongoing
or potential prosecutions. Exception (A)(ii) was drafted specifically in order to
enable prosecutors to make disclosures to investigators who could develop the basis
for and aid in prosecutions. See Sells, 463 U.S. at 436 (stating that exception (A)(ii)
was enacted “because Justice Department attorneys found that they often need
active assistance from . . . investigators from the [FBI], IRS, and other law
enforcement agencies”); Fed. R. Crim. P. 6 advisory committee’s note (1977
Enactment) (stating that “[o]ften the prosecutors need the assistance of the agents
in evaluating evidence” or conducting “further investigation”). As we have
discussed, OIG agents have a number of investigative duties, and are required to
“report expeditiously to the Attorney General whenever the Inspector General has
reasonable grounds to believe there has been a violation of Federal criminal law.”
5 U.S.C. app. § 4(d); see Investigative Officers, 14 Op. O.L.C. at 109. Hence, a
Department attorney may authorize disclosure of information to OIG in connection
with an OIG investigation that the attorney concludes will be likely to aid in an
ongoing or potential prosecution in which the attorney is involved.
Second, we think that exception (A)(ii) permits a Department leadership official to
authorize disclosure of grand jury information to OIG in connection with OIG
investigations or reviews that the official believes could assist her in carrying out her
duty to conduct programmatic or policy supervision of the Department’s criminal law
enforcement activities. As we discussed in analyzing the scope of permissible
disclosure under Title III, programmatic and policy supervision can affect the
prevention, investigation, or prosecution of criminal conduct as directly as individual
trial decisions, see Van de Kamp, 555 U.S. at 346, and constitute a central means by
which the Attorney General and her assistants direct and control the Department’s law
enforcement and prosecutorial functions. See supra pp. 14–15. Such activities are thus
part of Department leadership’s “duty to enforce federal criminal law” under the plain
language of that phrase. Further, it would be reasonable for a member of Department
leadership to “consider[]” many OIG reviews “necessary to assist” her in performing
this duty. Fed. R. Crim. P. 6(e)(3)(A)(ii). As we also noted in the Title III context,
Congress established OIG to “keep[] the head of the [Department] . . . informed about
problems” in the Department and to recommend “corrective action,” 5 U.S.C. app.
§ 2(3), and OIG’s reviews have historically provided the Department’s leadership
with “critical advice, information, and insights in connection with the exercise of their
supervisory responsibilities over the Department’s criminal law enforcement
programs, policies, and practices,” Yates Letter at 3. It would therefore generally be
reasonable for a member of Department leadership to conclude that an OIG
investigation or review that concerns, or is designed to develop recommendations
about, the manner in which the Department enforces federal criminal law is “necessary

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to assist” in the disclosing official’s supervision of that function on a programmatic or
policy basis.
We acknowledge that certain language in Sells might be read to suggest a
narrower scope of appropriate disclosures. In particular, various statements in the
opinion could be read to suggest that an attorney’s “duty” under exception (A)(i)
includes only her duty to conduct or supervise a particular pending prosecution. See,
e.g., Sells, 463 U.S. at 427 (“We hold that (A)(i) disclosure is limited to use by those
attorneys who conduct the criminal matters to which the materials pertain.”
(emphasis added)); id. at 429 n.11 (stating that “every attorney (including a super-
visor) who is working on a prosecution may have access to grand jury materials, at
least while he is conducting criminal matters” (emphasis added)); id. at 438 (noting
that the “primary objection” to a proposal to allow disclosures to other governmental
personnel was a concern that they would use grand jury information “to pursue civil
investigations or unrelated criminal matters” (emphasis added)). And although
Sells concerned exception (A)(i)—which authorizes disclosures for use in perform-
ing an attorney’s “duty”—rather than exception (A)(ii)—which authorizes
disclosure in connection with an attorney’s “duty to enforce federal criminal law”—
the Sells Court explained that the “criminal-use limitation” in exception (A)(ii)
“merely ma[de] explicit what [Congress] believed to be already implicit in the
existing (A)(i) language.” Id. at 436. This suggests that the Court would have
viewed its analysis of the limitations on exception (A)(i) as applicable to exception
(A)(ii) as well. Thus, it might be argued that programmatic and policy supervision
does not fall within an attorney’s “duty to enforce federal criminal law” because it
differs from the duties discussed in Sells in two respects: first, it involves
supervision of law enforcement agents in addition to prosecutors; and second, it
concerns criminal matters unrelated to the grand jury investigation in which the
information to be disclosed was developed. It might also be argued that disclosure
to OIG is different from the disclosures contemplated in Sells because OIG will
frequently use grand jury information to investigate past conduct in completed law
enforcement operations, rather than to assist in ongoing prosecutions.
In our view, however, notwithstanding these distinctions, Sells and subsequent
opinions support reading exception (A)(ii) to permit disclosures to OIG in
connection with Department leadership’s duties of programmatic and policy
supervision. With respect to the first arguable distinction—between supervision of
law enforcement officers and supervision of prosecutors—Sells expressly
recognized that a prosecutor’s authority to “command[]” law enforcement officers
is a critical means by which she carries out her prosecutorial duties and renders
assistance to the grand jury. Sells, 463 U.S. at 430 (stating that “a modern grand jury
would be much less effective without the assistance of the prosecutor’s office and
the investigative resources it commands”); id. at 430 n.13 (“Not only would the
prosecutor ordinarily draw up and supervise the execution of subpoenas, but also he
commands the investigative forces that might be needed to find out what the grand
jury wants to know.”). Moreover, as Sells also recognized (and as we noted above),

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Congress added exception (A)(ii) in part to ensure that prosecutors could obtain the
assistance of law enforcement officers in developing the basis for and conducting
prosecutions. See id. at 436. Sells therefore fully supports the proposition that the
duty to supervise prosecutions includes a duty to supervise law enforcement officers
in conduct that assists with prosecutions.
We likewise believe that the second arguably distinctive characteristic of
programmatic and policy supervision—that it concerns criminal matters unrelated
to the grand jury investigation in which the materials being sought were originally
developed—is consistent with Sells. Lower courts, treatises, and this Office have
repeatedly interpreted Sells to permit disclosure in connection with any “criminal
matters to which [grand jury] materials pertain,” id. at 427, and not merely those
matters in which the information was developed. See, e.g., Impounded, 277 F.3d
407, 413 (3d Cir. 2002) (holding that the disclosure of grand jury materials to a
federal prosecutor in another district was permissible under exception (A)(i)); 1 Sara
Sun Beale et al., Grand Jury Law and Practice § 5:8, at 5-58 (2d ed. 2014) (“Beale”)
(stating that an attorney may make a disclosure under exception (A)(i) “in
connection with a separate prosecution”); Shanks Memorandum at 2 (concluding
that exception (A)(ii) authorizes disclosure to FBI agents assisting in “a specific
criminal investigation” unrelated to the initial grand jury investigation); cf. Fed. R.
Crim. P. 6(e)(3)(C) (permitting the automatic disclosure of grand jury materials to
“another federal grand jury”). This Office has also previously concluded that the
disclosure authorization in exception (A)(ii) extends to general supervision of law
enforcement activities as well as to specific prosecutions: In our Rule 6(e)
Intelligence Community opinion, for example, we advised that the Attorney General
may make disclosures to assist “a broad criminal law enforcement program for
which [she] is responsible,” 21 Op. O.L.C. at 171; and in our Disclosure to the
President opinion, we cited legislative history supporting the view that “Congress
intended federal prose

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4119304. Public record. Not legal advice.