United States v. Sells Engineering, Inc.

Chief Justice Burger,

with whom Justice Powell, Justice Rehnquist, and Justice O'Connor join, dissenting.

The Court today holds that attorneys within the Department of Justice who are not assigned to the grand jury investigation or prosecution must seek a court order on a showing of particularized need in order to obtain access, for the purpose of preparing a civil suit, to grand jury materials already in the Government’s possession. In my view, this holding is contrary not only to the clear language but also to the history of Rule 6(e)(3)(A)(i) of the Federal Rules of Criminal Procedure. In addition, the Court’s decision reflects an erroneous assessment of the relevant policies, and provides the courts and the Department of Justice with precious little guidance in an area of great importance. I believe that, when a grand jury is validly convened and conducted on the request of the Government for criminal investigatory purposes, it is proper *447 and entirely consistent with the Federal Rules of Criminal Procedure for any attorney in the Department of Justice to have access to grand jury materials in pursuing inquiry into civil claims involving the same or related matters. I therefore dissent.

I

Rule 6(e)(3)(A)(i) (hereinafter (A)(i)) is straightforward and clear. It provides:

“(A) Disclosure ... of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to—

“(i) an attorney for the government for use in the performance of such attorney’s duty.”

Notwithstanding the clarity of the Rule, neither the Court of Appeals for the Ninth Circuit nor the majority of this Court has seen fit to honor its plain language.

As nearly as we can understand, the Court of Appeals’ opinion holds that attorneys within the Department of Justice assigned to civil matters are not entitled to routine, automatic disclosure of grand jury materials under (A)(i). In reaching this conclusion, the Court of Appeals appears to have drawn a sharp line between attorneys on the third floor of the Department of Justice assigned to civil litigation, and those on the first floor assigned to criminal cases. Such a reading is contrary to the Rule, to the intent of Congress, and to common sense.

Subparagraph (A)(i) authorizes automatic disclosure to any “attorney for the government” for use by that attorney in the performance of his assigned duty. The term “attorney for the government” is in turn defined in Rule 54(c) to include “an authorized assistant of the Attorney General.” 1 By *448 statute, every Justice Department attorney, wherever assigned in the Department, is an “authorized assistant” of the Attorney General. 28 U. S. C. §§ 510 , 515-517. It thus is not surprising to find that the Court’s opinion recognizes that “attorneys for the Civil Division of the Justice Department are within the class of 'attorneys for the government’ to whom (A)(i) allows disclosure without a court order,” ante, at 427-428 (emphasis added). That should be the end of the matter.

Today we find that it does not end the matter. After properly acknowledging that the term “attorney for the government” embraces Civil Division attorneys, the Court turns to the next clause in the Rule and strains that clause virtually beyond recognition.

Subparagraph (A)(i) authorizes disclosure to a Government attorney “for use in the performance of such attorney’s duty.” At one time all attorneys under the Attorney General were simply his aides. As with private law firms, a time came when it was more efficient to segregate attorneys by their specialized functions into separate Divisions within the Justice Department. An attorney in the Civil Division will naturally deal primarily with civil matters. Once it is recognized that (A)(i) authorizes disclosure to attorneys within the Civil Division, therefore, I would think it beyond question that they, as “assistants to the Attorney General,” may use the disclosed materials in performing their normal duties, which of course include the civil fraud action at issue here.

The Court concludes otherwise, however, apparently in the belief that the only duty contemplated by (A)(i) is the conduct of criminal cases! 2 Nothing in (A)(i) remotely *449 suggests such a curious result. In fact, a comparison of (A)(i) with the subparagraph which directly follows it, (e)(3) (A)(ii) (hereinafter (A)(ii)), reveals precisely the opposite. Subparagraph (A)(ii), which governs disclosure of grand jury materials to personnel assisting Government attorneys, allows disclosure to such nonattorneys only when “deemed necessary ... to assist an attorney for the government in the performance of such attorney’s duty to enforce federal criminal law.” Nonattorneys therefore are entitled to automatic access only in certain criminal cases. In contrast, (A)(i) imposes no such limitation upon disclosure to Government attorneys — as distinguished from non&ttorney personnel. Under (A)(i), Government attorneys are entitled to grand jury materials for use in performing the full range of their duties. This reading of the Rule is not simply “plausible,” as the Court concedes, see ante, at 435; in my view, it is compelling.

In seeking to avoid this straightforward interpretation, the Court places considerable reliance on the fact that Rule 6(e) contained no provision similar to (A)(ii) until 1977, whereas the substance of (A)(i) has appeared in Rule (6)(e) since its inception in 1946. The Court suggests that Congress, in amending the Rule in 1977, sought to grant support personnel the same range of access to grand jury materials as the attorneys they are assisting. In the view of the Court, the language of (A)(ii) simply “mak[es] explicit what [Congress] believed to be already implicit in the existing (A)(i) language.” Ante, at 436.

*450 This argument suffers from three major flaws. First, it rests on the assumptions that Government attorneys pursuing civil matters were not entitled to grand jury materials prior to 1977, and that Congress based its 1977 amendments upon such an understanding. Those assumptions are inaccurate, as I will demonstrate.

Second, the Court appears to believe that Government attorneys pursuing civil matters are in essentially the same position as nonattorney support personnel with respect to both their need for grand jury materials and their likelihood to violate grand jury secrecy. This is clearly not the case, and Congress took the obvious differences into account in 1977 when it chose to adopt different standards for disclosure to Government attorneys, on the one hand, and to support personnel, on the other.

Finally, the Court overlooks the reality that in 1977 Congress revised all of Rule 6(e) — including what is now (A)(i). Under those circumstances, it hardly seems likely that Congress was ignorant of the fact that the standards applicable to Government attorneys in (A)(i) differ from those for non-attorney support personnel in (A)(ii).

rH ► — I

The Court appears to believe that there is something in the history of Rule 6(e) that gives it license to ignore the Rule’s plain language. I disagree. The history of the drafting of a rule can justify a court in deviating from clear language only if that history leaves no question as to the meaning of the rule. See, e. g., Bread Political Action Committee v. FEC, 455 U. S. 577, 580-581 (1982); Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). Even the partial history provided by the Court is at best ambiguous and wholly insufficient to overcome the plain language of the Rule. And elements of the Rule’s history that are ignored by the Court make clear that (A)(i) means just *451 what it says, i. e., “government attorneys” are entitled to grand jury materials for the full range of their assigned duties, whatever may be their responsibilities.

A

The direct predecessor of (A)(i) was adopted in 1946. As initially promulgated, Rule 6(e) provided, in relevant part:

“Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties.” (Emphasis added.)

In interpreting this Rule, the Court places almost total reliance upon the following comment in the Advisory Committee Notes:

“Government attorneys are entitled to disclosure of grand jury proceedings . . . inasmuch as they may be present in the grand jury room during the presentation of evidence. The rule continues this practice.” Advisory Committee Notes, 18 U. S. C. App., p. 1411.

Even the Court concedes, however, that Rule 6(e) was never intended to limit disclosure to only those Government attorneys who were actually present in the grand jury room. See ante, at 429, n. 11. Plainly, for example, grand jury materials may be disclosed to superiors within the Justice Department. See, e. g., United States v. United States District Court, 238 F. 2d 713 (CA4 1956), cert. denied sub nom. Valley Bell Dairy Co. v. United States, 352 U. S. 981 (1957).

Thus, the curious line announced by the Court today appears nowhere in either the Advisory Committee Notes or the Rule itself. Further historical examination reveals, moreover, that the Rule was understood by its drafters to permit disclosure to attorneys throughout the Department of Justice, and that the Rule consistently has been applied in just such a manner ever since it was adopted.

*452 B

The historical setting and the records of the Advisory Committee on Criminal Rules reveal that the original draftsmen of Rule 6(e) intended the Rule to authorize automatic disclosure to attorneys throughout the Department of Justice. In the late 1930’s and early 1940’s, grand jury transcripts were regarded as the property of the Government. See Lewin, The Conduct of Grand Jury Proceedings in Antitrust Cases, 7 Law & Contemp. Prob. 112, 121, 125 (1940). It was recognized that the grand jury is a criminal investigatory body that may not be used as a mere discovery tool, see, e. g., In re National Window Glass Workers, 287 F. 219 (ND Ohio 1922). But when the grand jury investigation was brought in good faith for purposes of possible criminal prosecution, grand jury transcripts and materials were on several reported occasions made available to other Government attorneys or other governmental units for use in pursuing related civil litigation and for other purposes. See, e. g., In re Grand Jury Proceedings, 4 F. Supp. 283 (ED Pa. 1933) (minutes of grand jury that led to indictment for violation of prohibition laws disclosed for use in subsequent action to revoke beer permit); In re Bendix Aviation Corp., 58 F. Supp. 953 (SDNY 1945) (grand jury materials used by Department of Justice in preparing civil antitrust action). 3

Nevertheless, when the Federal Rules of Criminal Procedure were first proposed, no provision was included for disclosure of grand jury materials to Government attorneys. In fact, neither the first nor the second draft of the Federal *453 Rules of Criminal Procedure contained any provision relating to the grand jury. Rule 80 of the third draft concerned the grand jury; and by the seventh draft (also known as the “First Preliminary Draft”), that Rule (then numbered Rule 7(e)) had come much closer to its final form. The Rule still required a court order for any disclosure, however. See generally Orfield, The Federal Grand Jury, 22 F. R. D. 348, 346-357 (1959) (hereinafter Orfield).

There were numerous objections to the narrowness of this Rule. Assistant Attorney General Wendell Berge remarked:

“It. . . seems to me that the rule, read literally, has the effect of preventing a United States Attorney, or other authorized government attorney, from discussing developments before the grand jury with the Attorney General, an Assistant Attorney General, or other authorized Department of Justice officials. I cannot believe that such a result was intended and I think that appropriate exception ought to be made in the rule to cover this situation.” 2 Advisory Committee on Federal Rules of Criminal Procedure, Preliminary Draft: Comments, Recommendations and Suggestions Concerning the Proposed Federal Rules of Criminal Procedure 355 (1943).

Judge Paul J. McCormick of the Southern District of California raised the same objection:

“As a matter of common practice the United States Attorney uses the grand jury transcript rather freely with investigators and attorneys for the various governmental agencies. ... If the rule contemplates a restriction on the United States Attorney’s use of the transcript, I believe that he should be excepted from the provision requiring the permission of the court.” Ibid.

Similarly, Robert M. Hitchcock expressed concern that the Rule as then drafted would prevent a prosecuting attorney *454 from discussing the evidence before a grand jury “with his superior or with representatives of the Department of Justice,” 1 id., at 60. Similar views were expressed by others. See 1 id., at 59 (remarks of United States Attorney Joseph T. Votava); 2 id., at 354 (summary of suggestions of federal judges of Michigan); 2 id., at 355 (letter of United States Attorney Joseph F. Deeb).

The next draft (Second Preliminary Draft) reflected these comments; the first sentence of the Rule was amended to its final form, authorizing disclosure to “the attorneys for the government for use in the performance of their duties.” The scope of the amended Rule did not go unopposed. Judge S. H. Sibley of the Court of Appeals for the Fifth Circuit proposed deleting the entire first sentence of the Rule, and revising the Rule to require a court order for any disclosure, including disclosure by the attorneys who had been in the grand jury room to other Justice Department attorneys. Judge Sibley explained his proposed change as follows:

“The change ... is due to a belief that secrecy of the proceedings before the Grand Jury ought to be maintained except when otherwise ordered by the judge. A general rule permitting disclosures to attorneys for the Government is thought unwise, apparently having no check except the desire of the particular Government official who undertakes to get or make the disclosure. Embarrassing leaks might easily occur under so broad a rule applying to so many persons.” 4 id., at 13 (1944).

There can be no doubt that the draftsmen realized the need for precision in the language of the Rules; and in light of the numerous criticisms of the prior version of the Rule and Judge Sibley’s comments on the amended version, there also can be little question that the draftsmen were fully aware of the breadth of the Rule they were proposing. If they had intended the Rule to have the crabbed meaning now advanced by the Court, they surely would have amended the first sentence of the Rule. Yet they left that sentence as it *455 was, while making other changes in the Rule. I have no doubt that, in doing so, they realized and intended that the Rule would allow disclosure of grand jury materials to all “government attorneys” for use in performing their assigned duties. 4

Lester Orfield, one of the members of the Advisory Committee, later observed:

“[I]n comparison with the right of the defendant and of third parties, the right of the government to see and use the grand jury minutes is incomparably the greatest. And the government obtains discovery without first having to make a motion for it. The first sentence of Rule 6(e) provides for disclosure to the government for use in the performance of duties and says nothing about court action.” Orfield 451 (emphasis added).

In view of the background and history of the drafting of the 1946 Rule, I do not believe there can be any doubt that Orfield and the other draftsmen were aware of the breadth of the provision for disclosure to Government attorneys.

C

The subsequent application of Rule 6(e) further confirms the conclusion that it authorizes disclosure to Government attorneys for use in the full range of the duties assigned to them by the Attorney General. Throughout the 1940’s and 1950’s, those conducting grand jury investigations regularly referred matters to other attorneys in the Department of Justice if civil litigation proved desirable, and, in accordance with Rule 6(e), grand jury transcripts and materials were *456 made available to the attorneys pursuing the civil suits. This practice appears to have been most frequent in the antitrust area. See, e. g., United States v. Procter & Gamble Co., 19 F. R. D. 122 (NJ 1956), rev’d on other grounds, 356 U. S. 677 (1958); Hollabaugh, Development of an Antitrust Case, 4 A. B. A. Antitrust Section 14, 18-22 (1954). In addition, civil fraud suits of the sort at issue here often were referred to Civil Division attorneys after grand jury investigations revealed that criminal prosecution was inappropriate or that dual civil and criminal proceedings were warranted. See, e. g., United States v. Ben Grunstein & Sons Co., 137 F. Supp. 197 (NJ 1955). See also United States v. General Motors Corp., 15 F. R. D. 486 (Del. 1954) (civil damages action under Elkins Act).

On occasion, the use of grand jury materials in civil actions exceeded the bounds of Rule 6(e). Agency attorneys, who are not within the definition of “attorneys for the government” contained in Rule 54(c), were at times allowed access to grand jury materials for their own purposes without first obtaining a court order, as required by Rule 6(e), see In re April 1956 Term Grand Jury, 239 F. 2d 263 (CA7 1956); and grand juries were on occasion convened for the sole purpose of obtaining evidence for civil litigation, see Report of The Attorney General’s National Committee to Study the Antitrust Laws 344-345 (1955); Chadwell, Antitrust Administration and Enforcement, 53 Mich. L. Rev. 1133 , 1134-1135 (1955). Throughout this period, however, courts regularly recognized that Rule 6(e) authorized Government attorneys to use grand jury materials in subsequent civil litigation, provided the grand jury itself had been convened and conducted for valid criminal investigatory purposes. See, e. g., In re Petroleum Industry Investigation, 152 F. Supp. 646 (ED Va. 1957); United States v. Procter & Gamble Co., supra; Herman Schwabe, Inc. v. United Shoe Machinery Corp., 194 F. Supp. 763 (Mass. 1958); United States v. Ben Grunstein & Sons Co., supra; United States v. General Motors Corp., *457 supra. Cf. United States v. Wallace & Tiernan Co., 336 U. S. 793 (1949) (in civil antitrust case Government was entitled to production of documents previously subpoenaed by grand jury but returned to owners when the indictment was dismissed).

The leading case on this point is this Court’s decision in United States v. Procter & Gamble Co., 356 U. S. 677 (1958). There, the Government had convened and conducted a grand jury investigation of possible antitrust violations in the soap industry. Counsel for the Government had stated in an affidavit that the investigation served dual purposes: first, to determine whether there were violations of the antitrust laws, and, second, to determine “what action should be taken to enforce those laws through criminal proceedings, civil proceedings or both.” United States v. Procter & Gamble Co., 14 F. R. D. 230, 233 (NJ 1953) (emphasis added). No indictment was returned, but soon after the conclusion of the grand jury proceeding the Government filed a civil suit. In preparing that suit, the Government used the grand jury transcript without seeking a court order, and defendants also sought access to the grand jury transcript. The District Court granted the defendants’ motion, holding that defendants should be entitled to the same right of access to these materials as the Government. 19 F. R. D. 122 (1956). This Court reversed, ruling that the defendants had not made the requisite particularized showing of need for disclosure of the testimony. 356 U. S., at 682 .

The validity of the Government’s use of the grand jury transcript for civil purposes was not directly before the Court in Procter & Gamble, but since that use had played a central role in the District Court’s analysis, this Court addressed the issue. In so doing the Court made clear that it regarded the Government’s civil use of the materials as entirely proper:

“[The District Court] seemed to have been influenced by the fact that the prosecution was using criminal procedures to elicit evidence in a civil case. If the prosecu *458 tion were using that device, it would be flouting the policy of the law. . . .

“We cannot condemn the Government for any such practice in this case. There is no finding that the grand jury proceeding was used as a short cut to goals otherwise barred or more difficult to reach. It is true that no indictment was returned in the present case. But that is no reflection on the integrity of the prosecution. For all we know, the trails that looked fresh at the start faded along the way. What seemed at the beginning to be a case with a criminal cast apparently took on a different character as the events and transactions were disclosed. The fact that a criminal case failed does not mean that the evidence obtained could not be used in a civil case.” Id., at 683-684 (emphasis added).

Since this Court was aware that the Government was using grand jury materials to prepare its civil case without a court order, it is crystal clear that the Court approved of Government attorneys’ use of grand jury transcripts and materials in pursuing civil cases, so long as the grand jury was validly convened and the inquiry conducted for criminal investigatory purposes, and not simply used as a substitute for civil discovery. 5 See also United States v. Procter & Gamble Co., 180 F. Supp. 195 (NJ 1959) (after remand).

*459 In 1961, the Office of Legal Counsel of the Department of Justice examined the Department’s practice of using grand jury materials for civil litigation. Not surprisingly, that Office’s conclusions echoed those the Procter & Gamble Court had reached three years earlier. In summarizing its conclusions, that Office’s memorandum stated that “[when] grand jury evidence may be relevant in connection with, or may suggest the advisability of instituting, other criminal or civil proceedings by the Department of Justice!,] . . . disclosure may be made without court order. . . Memorandum from Nicholas deB. Katzenbach, Assistant Attorney General, Office of Legal Counsel, to Byron R. White, Deputy Attorney General, p. 1 (Dec. 21, 1961) (emphasis added). The body of the report elaborated on this conclusion:

“The decisions are quite clear that, in some situations at least, grand jury evidence may be used for purposes of civil trial. In United States v. Procter & Gamble, . . . the Supreme Court refused, in a civil antitrust case, to order wholesale discovery of grand jury testimony, stating that, absent any showing of bad faith on the government in subverting the grand jury process, the evidence obtained before the grand jury ‘could ... be used in a civil case.’... [A number of other] cases sanction the use by government attorneys of grand jury evidence for the purpose of preparing a civil case, provided the grand jury investigation was brought in good faith for purposes of possible criminal prosecution. . . .

“. . . I conclude that grand jury evidence may be used by Department of Justice attorneys in connection with other criminal and civil litigation conducted by the government, subject to the power of the courts to quash the grand jury subpoenas or enjoin the grand jury investiga *460 tion (and, in civil cases, to order full discovery to the other party) if they feel the grand jury proceeding is being subverted or abused.” Id., at 10-13 (citations and discussion of cases omitted).

Throughout the 1960’s and 1970’s, the Department of Justice adhered to this standard and continued to disclose grand jury materials to other attorneys without court order, for use in pursuing civil actions involving the same or related matters as those in the criminal investigation. 6 On several reported occasions, courts upheld this use of grand jury materials. See, e. g., United States v. General Electric Co., 209 F. Supp. 197, 198-202 (ED Pa. 1962); Washington v. American Pipe & Constr. Co., 41 F. R. D. 59, 62 (WD Wash., Ore., Haw., ND Cal., SD Cal. 1966); In re July 1978 Grand Jury, 374 F. Supp. 1334, 1337 (ND Ill. 1973); United States v. Wohl Shoe Co., 369 F. Supp. 386 (NM 1974). See generally Note, Administrative Agency Access to Grand Jury Materials, 75 Colum. L. Rev. 162 , 166-169 (1975). Thus, when Congress reconsidered Rule 6(e) in 1977, it did so against a backdrop of more than 30 years of consistent Justice Department practice of using grand jury materials without court order in investigating and prosecuting civil actions.

D

The Court does not suggest that Congress sought to change the meaning of the provision allowing disclosure to Government attorneys when it amended Rule 6(e) in 1977, nor would such a suggestion be tenable. Although Congress *461 slightly modified the language of that provision 7 and placed it in a separate subparagraph, (A)(i), there is no indication that Congress intended to alter the meaning of the provision. On the contrary, as Representative Mann stated in explaining the amendments to the Members of the House:

“[Subparagraph (A)(i)] continues a policy of present rule 6(e). Disclosure of grand jury information may be made to ‘an attorney for the Government for use in the performance of such attorney’s duty.’ This language, which is similar to language presently in the rule, is not intended to change any current practice.” 123 Cong. Rec. 25194 (1977) (emphasis added).

See also, e. g., S. Rep. No. 95-354, pp. 5-8 (1977).

The Court nevertheless asserts that implicit in Congress’ understanding of Rule 6(e) in 1977 was the belief that Government attorneys were entitled to automatic access to grand jury materials only for criminal purposes. To support this position, the Court quotes at length from the Senate Report on the Rule, S. Rep. No. 95-354, supra, and from testimony by Acting Deputy Attorney General Richard Thornburgh, Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 95th Cong., 1st Sess., 67 (1977) (hereafter Hearings). Yet the primary focus of the 1977 hearings and amendment was on use of grand jury materials by agencies outside the Department of Justice, and both of the statements relied on by the Court concerned this agency use of grand jury materials. 8 In my *462 view, two ambiguous statements in connection with a quite different issue are hardly a balance for the clear historical evidence of more than 30 prior years of routine access to grand jury materials by Department of Justice attorneys pursuing civil matters.

Moreover, other statements in the 1977 legislative history — statements that are ignored by the Court — reveal that *463 Congress fully understood that (A)(i) grants attorneys within the Department of Justice automatic access to grand jury materials for the full range of their duties, including their responsibility over civil matters. When it first proposed an amendment to Rule 6(e) in 1977, the Advisory Committee on Rules emphasized the difference between “attorneys for the government” and other Government personnel, including employees of administrative agencies. See 18 U. S. C. App., pp. 1024-1025 (1976 ed., Supp. V). The Committee set forth the definition of “attorney for the government” contained in Rule 54(c), see n. 1, supra, and then quoted the following language from In re Grand Jury Proceedings, 309 F. 2d 440 (CA3 1962):

“The term attorneys for the government is restrictive in its application .... If it had been intended that the attorneys for the administrative agencies were to have free access to matters occurring before a grand jury, the rule would have so provided.” Id., at 443 (emphasis added).

This quote — and the opinion in which it appears — clearly draws a distinction between “attorneys for the government,” who were entitled to free access to grand jury materials, and attorneys for administrative agencies, who were not entitled to such automatic disclosure.

This understanding was shared not only by the Advisory Committee, but also by Congress itself. Representative Charles Wiggins, dissenting from the decision of the House Committee on the Judiciary to defer action on Rule 6(e) (a decision with which the Senate disagreed, and on which the Senate’s view ultimately prevailed), gave the following Report regarding existing disclosure practices:

“In the course of considering [the amendment to Rule 6(e)], U. S. Attorneys and the Justice Department were surveyed as to their perception of current practice regarding grand jury disclosures. Although the view was *464 not strictly uniform, there was general agreement that disclosures at least to criminal investigative agents and other divisions within the Justice Department were permissible without court order.” H. R. Rep. No. 95-195, p. 13 (1977) (additional views of Rep. Wiggins).

As noted above, Representative Mann informed the Members of the House that the amendment was “not intended to change any current practice” regarding disclosure of grand jury materials to attorneys within the Department of Justice. 123 Cong. Rec. 25194 (1977). In floor debate, Representative Holtzman expressed the view that “grand jury proceedings ought not to be disclosed to other governmental agencies without strict safeguards.” Id., at 11111. Her statement was representative of the view of the courts. This view was later echoed by Representative Wiggins. In explaining to Members of the House the Senate amendment that ultimately prevailed, he emphasized yet again the differing standards for Government attorneys and for agency attorneys and personnel:

“There will come a time when a grand jury uncovers violations of civil laws, or State or local laws. It then becomes the duty of the attorney for the Government, if he or some other attorney for the Government cannot act on that information, to turn it over to the appropriate governmental agency so that such agency can do its duty. However, the attorney for the Government may do this only after successfully seeking an order of the court.” Id., at 25196 (emphasis added).

See also, e. g., Hearings, at 47-54 (statement of Judge Becker).

These statements all reflect an awareness of the prevailing practice, under which attorneys throughout the Department of Justice were entitled to use grand jury materials in performing all their responsibilities, but could not turn the material over to another agency for that agency’s use except by *465 court order. To me, there can be no doubt that Congress understood that under Rule 6(e) all attorneys in the Department of Justice were authorized to use grand jury materials in the full range of their duties — including civil matters — and chose to leave that standard unchanged. This is in marked contrast to the treatment of assisting personnel, including personnel of other agencies, to whom automatic disclosure is permitted under (A)(ii) only for criminal purposes. History thus conclusively buttresses the plain language of the Rule, compelling the conclusion that Government attorneys, as defined in Rule 54(c), are entitled to grand jury materials in pursuing civil matters, regardless of whether they themselves were assigned to the grand jury investigation or prosecution. 9

Ill

The Court relies heavily upon perceived policy considerations that the Court seems to think favor its approach. The language and the history of the Rule are so clear that reference to policy considerations should be wholly unnecessary. Congress, in adopting (A)(i), already has made the relevant policy choices. In any event, however, the Court has erred gravely in its assessment of the policy implications of the standard it sets forth and of the standard which I believe actually appears in (A)(i).

The Court asserts that disclosure for civil use would do “affirmative mischief” in three ways. See ante, at 431-434. First, it is argued that “disclosure to Government bodies raises much the same concerns that underlie the rule of secrecy in other contexts.” Ante, at 432. Presumably, the *466 “concerns” to which the Court refers are those set forth in Douglas Oil Co. v. Petrol Stops Northwest, 441 U. S. 211 (1979):

“First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against the indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” Id., at 219 .

In raising the specter of lost secrecy, the Court ignores the fact that normal Justice Department practice — which was followed in this case — calls for disclosing grand jury materials for civil use only after the grand jury proceeding and criminal investigation have been completed, see United States Attorneys’ Manual §9-11.367 (Feb. 16, 1982). That being the case, the secrecy concerns suggested by the Court lose much of their relevance; there is, for example, no risk that potential defendants may flee or try to influence grand jurors or witnesses.

Furthermore, attorneys for the Justice Department are officers of the court bound to high ethical standards. The Court itself recognizes that “disclosure to Justice Department attorneys poses less risk of further leakage or improper use than would disclosure to private parties or the general public,” ante, at 445, and notes “Congress’ special concern that nonattorneys were the ones most likely to pose a danger of unauthorized use,” ante, at 442. The Court nevertheless appears to premise its analysis on the assumption that Gov *467 ernment attorneys routinely will violate their duty to uphold grand jury secrecy, in accordance with the requirements of Rule 6(e). That Rule embodies a clear standard of secrecy, subject to a set of carefully delineated exceptions; and I, for one, am unwilling to accept this wholly unwarranted assumption on the part of the Court. Dissemination of grand jury materials beyond Justice Department attorneys will occur only if, upon examination, the materials are found to warrant a civil action by the United States, and then only upon receipt of a court order pursuant to Rule 6(e). At that point, any interest in secrecy would be clearly outweighed by the public interest in disclosure.

The Court next asserts that a blanket rule against access to grand jury materials for civil purposes is needed to prevent the possibility that the grand jury will be used improperly as a tool for civil discovery. I fully agree with the Court that use of grand jury proceedings for the purpose of obtaining evidence for a civil case is improper. 10 But the mere 'potential for such abuse does not justify this Court’s precluding Department of Justice attorneys from reviewing grand jury materials in assessing and prosecuting civil actions in the vast majority of cases where the grand jury has been convened and conducted for valid criminal investigatory purposes. As the Court recognized in United States v. Procter & Gamble Co., 356 U. S. 677 (1958), the proper approach to the danger of abuse is not to adopt an across-the-board ban on civil use of grand jury materials by those not assigned to the criminal investigation, but rather for a district court to impose appropriate sanctions if it turns out that the grand jury process has *468 been abused to elicit evidence for a civil case. In Procter & Gamble, this Court indicated that one available remedy for abuse would be compensating disclosure to civil defendants. In other cases it might prove appropriate to prohibit the Government from making any use of grand jury materials in prosecuting its civil case. And in egregious cases it might be proper to hold certain individuals in contempt. Here, however, the District Court found no grand jury abuse. 11

Finally, the Court argues that civil use of grand jury materials would subvert the limitations on civil discovery and investigation that would otherwise apply. Ante, at 433-434. As the basis for this contention, the Court relies primarily on the Civil Division’s access to the discovery provisions of the Federal Rules of Civil Procedure. The Court argues that the need for and limitations on this discovery method would be undermined by allowing Government attorneys automatic access to grand jury materials for use in civil actions. This argument rests on the assumption that the civil discovery provisions of the Federal Rules of Civil Procedure were designed with but a single Division of the Justice Department in mind. Plainly that is untrue. The Federal Rules of Civil *469 Procedure govern virtually all civil actions, the vast majority of which involve only private litigants. The civil discovery provisions were undoubtedly designed with these private litigants in mind, and the Civil Division of the Department has simply been relegated by the Court to the civil discovery provisions for lack of a better alternative. 12 Of course, if attorneys for the Justice Department are considering a civil action, they may not institute a grand jury in order to develop evidence for that civil case, but must make use of the available means for civil investigations. When a valid grand jury investigation has taken place, however, nothing in the Federal Rules of Civil Procedure precludes attorneys in the Justice Department from making use of the grand jury materials in preparing for and prosecuting civil suits.

Besides greatly overstating the interests that would be served by a blanket rule prohibiting attorneys from examining grand jury materials for possible civil prosecution, the Court also has given very short shrift to the public interests that are served by allowing Government attorneys access to *470 grand jury materials for the full range of their responsibilities. The Court dismisses these interests as “nothing more than a matter of saving time and expense.” Ante, at 431. This cavalier comment overlooks the vital importance of time and money in the proper functioning of any system. The unwarranted burdens that the Court’s rule imposes upon the Department of Justice will not mean simply that the Government must pay more to keep the system operating. Rather, the additional time and expense will result in a substantial decrease in the Government’s ability to enforce important laws in meritorious civil actions — thus striking a severe blow to the public interest. 13

Even more importantly, however, the Court’s casual dismissal of the interests involved as “mere time and money” displays a profound insensitivity to the nature and role of the Department of Justice. Ever since the enactment of the Judiciary Act of 1789, ch. 20, § 35, 1 Stat. 92 , both civil and criminal litigation responsibilities have been vested in the Attorney General and the several United States Attorneys. The Attorney General is the attorney for the Government. At one time the Attorney General served alone, for many years without a single clerk or aide. Even after the establishment of the Department of Justice in 1870, the Attorney *471 General served with only a handful of assistants; they shared responsibility for all the Government’s litigation, criminal and civil. See generally H. Cummings & C. McFarland, Federal Justice 78-92, 142-160, 218-229 (1937). As a practical matter, certain individuals may have had greater involvement in civil matters than others, but distinctions between those responsible for civil matters and those handling criminal matters were at one time unheard of. Over the years, the Department has grown dramatically, and a result has been the administrative separation of the Department into a number of Divisions, each of which has primary responsibility for a particular type of case. Even today, though, many of the Divisions have both civil and criminal enforcement responsibilities. See, e. g., 28 CFR § 0.40 (a) (1982) (Antitrust Division); 28 CFR §§ 0.55 (c), (d), (f)-(i), (n), (s) (1982) (civil jurisdiction of the Criminal Division). Moreover, now, as in the past, the Attorney General has complete authority to assign either civil or criminal responsibilities, or both, to any attorney in the Department of Justice. See, e. g., Rev. Stat. §§359, 360; 28 U. S. C. §§510 , 515(a). 14

The Department of Justice might well be referred to as the world’s largest law firm, and its various Divisions work together toward the ultimate objective for which they were created — to promote the interests of the sovereign and of the public. Grand jury investigations of criminal activity of course play a major role in protecting the Nation and advancing the public interest by deterring violations of our laws. Many civil actions seek precisely the same object, however, and are of at least equal importance in promoting the public welfare. In a number of areas, Congress has enacted civil legislation that, together with related criminal law provi *472 sions, forms an integrated law enforcement scheme. This is, of course, true of the injunctive provisions of the Sherman Act that were at issue in Procter & Gamble. Most significantly for present purposes, the civil provisions of the False Claims Act at issue here were enacted as part of an integrated scheme of civil and criminal law enforcement. See United States v. Bornstein, 423 U. S. 303, 305-307, n. 1 (1976). In enacting the False Claims Act, Congress instructed the United States Attorneys “to be diligent in inquiring into any violation” of the Act, Rev. Stat. §3492 (emphasis added). There can be little doubt that Congress expected — and continues to expect — attorneys for the Government to investigate the possibility of both criminal and civil violations when applying this and other integrated enforcement schemes. Under these circumstances, it would at the very least be anomalous if a Government attorney should discover evidence pointing to civil violations during a grand jury investigation, but fail to refer these violations to other attorneys within the Department of Justice for possible prosecution. Indeed, such a failure might well merit a disciplinary inquiry.

In some cases, of course, even before a grand jury investigation starts the Department of Justice will have sufficient information to justify filing a civil complaint. In many other cases, however, the Department will have no more than a suspicion of civil violations; and on occasion, the relevant information will come as a complete surprise. In those cases, unless the attorney conducting the grand jury is entitled to disclose the substance of the grand jury investigation to attorneys within the Civil Division, those attorneys will remain oblivious to the existence of much illegal behavior and will not have sufficient basis even to file civil complaints. And until a complaint is filed, they will be unable to utilize the discovery provisions of the Federal Rules of Civil Procedure, upon which the Court places so much weight. Thus, the question is not simply whether the Civil Division is able to *473 afford the time and expense necessary to conduct a civil investigation. Rather, the real issue in many cases is whether the Government will be in a position to initiate any civil action at all.

Finally, perhaps the most troubling aspect of the Court’s stilted holding is the opinion’s virtual silence on any meaningful guidance for the lower courts and the Department of Justice. Plainly, any Government attorney, including any attorney normally assigned to civil cases, who has been assigned to the criminal grand jury investigation or prosecution is entitled to automatic access to grand jury materials for these criminal purposes. It also seems clear that, under the Court’s standard, attorneys who take no part in the criminal investigation or prosecution are not entitled to automatic disclosure of the actual grand jury transcript and materials for civil purposes, without court authorization. With those two exceptions, today’s opinion provides almost no guidance as to the permissible scope of Justice Department use of grand jury materials.

The Court frames the question presented by this case as being whether (A)(i) permits automatic disclosure of grand jury materials for “preparation and litigation of a civil suit by a Justice Department attorney who had no 'part in conducting the related criminal prosecution” Ante, at 428 (emphasis added). The Court states that “[t]he policies of Rule 6 require that any disclosure to attorneys other than prosecutors be judicially supervised rather than automatic,” ante, at 435 (emphasis added), and holds that “(A)(i) disclosure is limited to use by those attorneys who conduct the criminal matters to which the materials pertain,” ante, at 427 (emphasis added). From these and similar statements, it is reasonable to read today’s decision as allowing any Justice Department attorney who has participated in the grand jury investigation or prosecution — and thus already has had access to the grand jury materials — to make further use of those materials in preparing and litigating a related civil case. Logically, this must *474 mean that any attorney assigned by the Attorney General to assist in a criminal fraud investigation or prosecution may use the grand jury materials for subsequent civil fraud litigation. The Court deliberately chooses to avoid these issues, however, on the ground that they are not squarely presented by this case. Ante, at 431, n. 15. See also, e. g., ante, at 429, n. 11, 434, n. 19, 441-442, and n. 33.

In addition, I assume that, if a grand jury turns up plain evidence of fraud that properly should be pursued by Government lawyers, the Court would allow a prosecutor to disclose the substance of the violations to his colleagues, so that those attorneys might file a civil complaint — if they have not already done so — and commence civil discovery. And when a grand jury discovers fraud, the prosecutor surely should be able to seek a court order under Rule 6(e)(3)(C)(i) enabling him to disclose the relevant portions of the actual grand jury transcripts and materials to other attorneys for prosecution of the civil fraud claims. Here again, the Court plainly is aware of the issues, see ante, at 441-442, but fails to provide any guidance on their proper resolution.

Of course, the job of this Court is to decide the case before it, and not to issue advisory opinions on matters far afield. But to my mind, when the Court announces a standard that appears nowhere in the relevant Rule, that overturns more than 30 years of established practice, and that will force a complete reevaluation and restructuring of Justice Department procedures regarding use of grand jury materials, the Court has an obligation to provide some guidance to the Department and to other courts on vitally important issues that are fairly embraced by the decision. I find it curious that a majority of this Court feels no such duty.

IV

The opinion of the Court today upsets longstanding practice of the Justice Department regarding disclosure of grand jury materials for civil use, without affording that Depart *475 ment or the courts meaningful guidance on the permissible limits of disclosure to other attorneys within the Department in the future. Although the bounds of today’s decision are wholly undefined, it is clear that the decision will greatly limit disclosure of grand jury materials for civil use; and it is inevitable that countless meritorious civil actions will never be investigated or prosecuted, unless the Attorney General routinely assigns civil fraud lawyers to help work up criminal fraud cases. On its face, this process will be a wasteful practice in terms of use of the time of Department lawyers. This result is contrary to the plain language and history of Rule 6(e)(3)(A)(i), and to elementary considerations of sound policy. I therefore dissent.

Throughout this opinion, the term “Government attorneys” is used to refer to those attorneys specified in Rule 54(c), which provides:

“ ‘Attorney for the government’ means the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, an au *448 thorized assistant of a United States Attorney, [and, in certain cases, the Attorneys General of Guam and the Northern Mariana Islands].”

The term does not include attorneys for agencies outside the Department of Justice.

As discussed below, see infra, at 473-474, the Court’s rationale is unclear. At times, the Court seems to be basing its decision upon a distinction between use of grand jury materials in civil and criminal cases. See, *449 e. g., ante, at 435-443. At other times, however, the Court implies that its rule prohibits only disclosure to those Government lawyers outside the “prosecution team,” and thus presumably allows any attorney who properly has participated in the criminal investigation or prosecution to use the grand jury materials to which he has had access for any purpose, criminal or civil. See, e. g., ante, at 430-431, 431, n. 15, 432, n. 16. Of course, the Attorney General may assign to a criminal case any lawyer under his jurisdiction.

See also, e. g., In re Crain, 139 Misc. 799 , 250 N. Y. S. 249 (Gen. Sess. 1931) (minutes disclosed to Police Commissioner for investigation of public corruption); In re Attorney General of United States, 160 Misc. 533 , 291 N. Y. S. 5 (Cty. Ct. 1936) (state grand jury minutes disclosed for use by Attorney General of the United States); Morse, A Survey of the Grand Jury System, Part II, 10 Ore. L. Rev. 295, 336-337, n. 200 (1931) (same). Cf. In re Texas Co., 27 F. Supp. 847, 851 (ED Ill. 1939) (upholding grand jury subpoenas, even assuming that the evidence might help the Government in its prosecution of other pending indictments).

The Court somehow reads the above history as referring only to disclosure for prosecutorial purposes. See ante, at 429, n. 11. Those who commented on the various drafts of the original Rule spoke of the need for disclosure to other “Department of Justice officials,” “attorneys for the various governmental agencies,” and “representatives of the Department of Justice.” Much as the Court may wish otherwise, they did not refer to disclosure only to what the Court characterizes as the “prosecution team.”

The Court today blandly ignores Justice Douglas’ opinion for the Court in Procter & Gamble, and instead places great weight on Justice Whit-taker’s concurring opinion, 356 U. S., at 684-685 . Justice Whittaker expressed concern that grand jury proceedings might be abused for civil investigative purposes, and stated that he “would adopt a rule” requiring both the Government and private parties to show particularized need before disclosure, id., at 685 . The majority seems to believe that Justice Whittaker was describing the state of existing law, and attributes the same view to the other Members of the Court in Procter & Gamble. See ante, at 434, n. 19. Examination of Justice Whittaker’s actual language reveals, however, that he was simply expressing his personal views regarding the rule that he would adopt if he were making the rules. He was not describing existing law, as was Justice Douglas. It bears note, moreover, that *459 none of the other five Justices in the majority saw fit to join Justice Whit-taker’s concurring opinion. Nor did the three dissenting Justices suggest that Rule 6(e) barred the Government from using materials from validly convened grand juries in pursuing subsequent civil litigation.

See, e. g., U. S. Dept. of Justice, A Practical Handbook of Federal Grand Jury Procedure 58-60 (2d ed. 1968); United States Attorneys’ Manual § 9-11.367 (Feb. 16, 1982); Friedman, Parallel Investigations: Inter-agency Sharing of Information and Freedom of Information Act Problems, reprinted in part in ABA, Parallel Grand Jury and Administrative Agency Investigations 816, 819 (1981).

The 1977 amendments replaced the phrase “the attorneys for the government for use in the performance of their duties” with “an attorney for the government for use in the performance of such attorney’s duty.”

Acting Deputy Attorney General Thornburgh’s statement, for example, was in response to an inquiry by Representative Mann concerning “grand jury information being made available to other agencies,” Hearings, at 66 (emphasis added). Representative Mann asked if Thornburgh had *462 described existing practice accurately when he stated that “the amendment will not permit the Department of Justice to take advantage of or make disclosures to investigative agents or experts in order to aid other Federal agencies in conducting their own [civil or criminal] investigations.” Id., at 55 (prepared statement of Acting Deputy Attorney General Thornburgh) (emphasis added).

Naturally, Congress would have understood Mr. Thornburgh to be answering the question he had just been asked — about disclosure of grand jury materials to other agencies — and not to be expressing his views concerning use by the Justice Department itself. In reaching a different conclusion, the Court places great emphasis on Thornburgh’s reference to “civil fraud” actions on behalf of the Government. Yet, contrary to the Court’s assumption, civil fraud suits are not the exclusive province of any one division of the Department. Other divisions and outside agencies, including the Internal Revenue Service, see, e. g., United States v. LaSalle National Bank, 437 U. S. 298, 308-310 (1978), regularly pursue civil fraud actions on behalf of the Government. In the portion of his testimony immediately following that quoted by the Court, Mr. Thornburgh went on to refer to disclosure to the IRS. In summarizing his answer, he stated:

“In all of those instances and any others that we could discuss hypothetically with respect to agencies such as the SEC and others, there is constantly on the part of the United States Attorney’s Office and the Department of Justice an awareness of the compartmentalization of the matters that they are dealing with.” Hearings, at 67 (emphasis added).

When one considers Mr. Thornburgh’s testimony as a whole and in context, it scarcely seems likely that Congress would have based its understanding of Justice Department practice upon his single ambiguous reference to civil fraud actions. This is especially true, given that a survey of United States Attorneys and the Justice Department conducted by the House Judiciary Committee in connection with this very amendment had disclosed that existing practice was to disclose grand jury information to other divisions of the Justice Department without court order. See H. R. Rep. No. 95-195, p. 13 (1977) (additional views of Rep. Wiggins) (quoted infra, at 463-464).

The Court seeks support for its reading of the Rule in a 1982 American Bar Association proposal to amend (A)(i). See ante, at 440-441, n. 32. I scarcely think that this Court need rely on an interpretation of the drafters’ views supplied five years later by the ABA, when the actual legislative history is readily available. As the ABA recognized, the plain language of the Rule is contrary to the decision reached today. If the Rule is to be amended, as the ABA urged, that amendment should take place through the normal rules process, and not through a decision of this Court.

I find it a bit ironic, however, that the Court relies solely on this Court’s decision in United States v. Procter & Gamble Co., 356 U. S. 677 (1958), for the above proposition, inasmuch as that decision itself recognized the Government’s authority to use materials from a properly convened grand jury without a court order in pursuing a civil action — and thus is completely at odds with the Court’s holding today. See supra, at 457-458.

In any event, the Court’s standard does not meet the asserted problem of grand jury abuse. The Court suggests that a bright-line standard is needed to eliminate the temptation to initiate grand jury investigations for civil purposes and to avoid problems of detecting and proving grand jury misuse. See ante, at 432. Apart from the reality that this burns down the house to get rid of the mouse, the vague and indefinite standard actually adopted by the Court does not meet the concerns which the Court’s opinion expresses. Even if one accepts the Court’s wholly unsupported assumption that Government attorneys often misuse grand juries, the Court’s own standard will leave much of the potential for misuse intact; the decision apparently continues to allow those assigned to the grand jury investigation or prosecution to make continued use of the grand jury materials in subsequent civil litigation. Under the Court’s approach, reviewing courts will still be faced with the task of determining whether the grand jury was initiated for civil or criminal purposes, in those cases where a member of the investigative team has used grand jury materials in prosecuting a later civil case.

In my view, the civil discovery provisions of the Federal Rules are wholly insufficient for the Department of Justice to carry out its responsibilities to pursue fraud claims effectively. Under the Federal Rules, discovery may not normally take place until after a complaint has been filed. Yet before filing a complaint, an attorney must satisfy himself that to the best of his knowledge “there is good ground to support it.” Fed. Rule Civ. Proc. 11. In a typical action between private parties, the parties themselves will have sufficient personal knowledge to determine whether an action is warranted. Civil Division attorneys seldom have actual personal knowledge of the underlying facts, however, and frequently must undertake additional investigation before they will be able to ascertain whether litigation is appropriate. If limited to voluntary cooperation or the civil discovery provisions, therefore, those attorneys will be unable to pursue many frauds against the public. These same concerns led Congress to enact legislation authorizing the Antitrust Division to issue civil investigative demands, Pub. L. 87-664, § 3 , 76 Stat. 548 , 15 U. S. C. § 1312 . See Report of the Attorney General’s National Committee to Study the Antitrust Laws 344-345 (1955). The Civil Division has not been provided with similar authority to issue civil investigative demands.

It bears note, moreover, that not just the Government’s time and money are at stake. Witnesses who have testified fully before the grand jury may have their schedules disrupted again for civil investigations. In many civil cases, a number of witnesses would undoubtedly be deposed in any event; but other witnesses will be forced to undergo the burden of appearing for testimony that would be unnecessary if Government attorneys had access to the grand jury materials. In addition, witnesses may die, their memories may fade, records may be lost, and statutes of limitations may run. Presumably, even under the Court’s approach, Government attorneys could gain access to the grand jury materials through a court order in the first three of those situations — if the attorneys learned that the witnesses had testified before the grand jury or produced the relevant records. Where the statute of limitations has run, however, there would be no such relief.

Thus, for example, 28 U. S. C. § 515 (a) provides:

“The Attorney General or any other officer of the Department of Justice . . . may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings .. . which United States Attorneys are authorized by law to conduct.. ..”