Jay Bybee Wrote Memo Permitting Broad Sharing of Intelligence-Related Grand Jury Information

In March 2011, I noted a previously unreleased OLC memo mentioned in Jack Goldsmith’s May 6, 2004 illegal wiretapping memo seemingly giving the President broad authority to learn about grand jury investigations.

For example, this Office has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002)

The Brennan Center has now liberated that memo (though they don’t yet have it linked). And it shows that in July 2002, Jay Bybee interpreted a section of the PATRIOT Act that expanded information-sharing to include sharing grand jury information, with no disclosure, with the President and his close aides.

The notion that grand jury testimony should be secret dates back to at least the seventeenth century. The rules governing disclosure of grand jury proceedings are set by the Federal Rules of Criminal Procedure; prior to the PATRIOT Act, those rules declared that grand jury information could be shared only under certain circumstances, such as when the material was necessary to assist a prosecutor. However, disclosures had to be reported to a judge, and everyone receiving the information had to be told of its confidentiality.

The PATRIOT Act changed these rules significantly. Government lawyers could now share “any grand-jury matter involving foreign intelligence, counterintelligence …, or foreign intelligence information” with nearly any federal official, including those working in law enforcement, intelligence, immigration, national defense, or national security. Even records about a grand jury’s deliberations or a particular grand juror’s vote were apparently fair game. And the standard for sharing the information was not whether the material was “necessary” to the official’s duties; instead, the information need only “assist” the official in some way.

[snip]

First, although the rule expressly requires that disclosures of grand jury information be reported to the court, Bybee advised that disclosures to the president need not be reported lest they “infringe on the presumptively confidential nature of presidential communications.” (OLC had previously decided that similar disclosures to the president would be reportable in some circumstances but not in others.)  In addition, disclosures to the president’s “close advisors” – including the president’s chief of staff, the vice president, and counsel to the president – could be kept secret as well. While only “information that is actually necessary for the President to discharge his constitutional duties” could be secretly disclosed to the president or his advisors, that requirement is highly unlikely to be tested in practice.

Permitting the content of deliberations or a grand juror’s vote to be shared secretly with the vice president is surprising enough.  The memo goes much further, however.  Once an attorney for the government has shared grand jury information with anyone – the president, one of his close advisors, or any other federal official whose duties are listed above – the person receiving the information can share it with anyone else without reporting to the court.  That later disclosure, according to the memo’s crabbed reasoning, is not a disclosure “under” the rule, and therefore is not bound by the reporting requirement.

And there’s more: the recipient of one of those subsequent distributions can use the information for any purpose.  Because these down-the-line releases are not technically disclosures “under” the rule, the “official duties” constraint does not apply.

I’ll have more to say about this once I get the memo.

But imagine how it might be used in, say, the Valerie Plame or the Thomas Drake investigations. They were, after all, investigations about the unauthorized disclosure of foreign intelligence information. They also happened to be investigations into Dick Cheney’s law-breaking, but they were ostensibly about leaks of precisely the kind of information Jay Bybee permitted be shared with the President and … the Vice President. And in the case of the Plame leak, once Cheney got a hold of the information, he could share it with Karl Rove who could do whatever the fuck he wanted with it.

Mind you, once Pat Fitzgerald got put in charge, I doubt such sharing happened on the Plame case–at least not before August 2005, when Jim Comey retired. After that, who’s to say what David Margolis, the master of institutional self-preservation, might have done with grand jury information implicating top White House officials?

And, yes, by all appearances, this memo remains operative.

Update: Here’s the memo. And here’s the operative passage:

 Although the new provision in Rule 6(e) requires that any such disclosures be reported to the district court responsible for supervising the grand jury, disclosures made to the President fall outside the scope of the reporting requirement contained in that amendment, as do related subsequent disclosures made to other officials on the President’s behalf.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

34 replies
  1. bmaz says:

    I would assume the Obama Administration would further interpret the scope to be any “national security” information. Which in today’s environment might make this an effective gutting of 6(e).

  2. What Constitution? says:

    Whew, it’s a good thing Obama is a Good Man so we don’t have to worry about any abuses of this kind of secret “never mind those silly laws” stuff.

    Exactly how delusional do people have to be to presume, as Bybee does, that the structure of the United States Constitution was secretly far more concerned that the President be unencumbered by any concept of restriction than any other thing? That when the Framers set out to establish a government of defined and limited governmental powers, they really meant to say “except for the President if the President thinks otherwise”?

  3. P J Evans says:

    I really hope that this kind of stuff comes back and bites Bybee in the rear. And Yoo, and all their buddies who made the current secret-police-state possible.

  4. scribe says:

    Not for nothing, but the part about juror votes is perhaps the most troubling part of a very troubling revelation.

    A few years back, I served as a grand juror in the courts of my then state – not federal court. It was the routine kind of crime one sees in state courts – drug busts, felons in possession of guns and the like. I did want to make clear what exactly it was I and the other grand jurors were voting for or against, so I asked questions. I’m a lawyer after all. Most if not all of my questions were designed to (actually) help the prosecution by making really, really clear there was probable cause. Or not.

    There was one prosecutor’s attorney who had a line of dubious drug cases. He was a strutting, posing goof who made clear we were just a rubber stamp, the kind of guy for whom the prosecutor’s office was a waystation on the road to bigger and better and more remunerative things. He Did Not Like the fact that I asked any questions at all.

    So, when I asked a question that he didn’t like (it showed what a crock his case was), he threatened to have me indicted on drug charges, if I didn’t shut the fuck up. We had a staredown lasting a good thirty seconds that had a couple of the other grand jurors, seated between him and me so they could see the looks, screaming.

    One should also recall the escapades of Mary Beth Buchanan, the Bush US Atty in Pittsburgh, who made a cottage industry out of prosecuting Democrats and giving Republicans a free ride. She prosecuted the Democratic Coroner, a man of some celebrity whose name escapes me now, on some trumped up corruption charges. Using the government office fax for his personal consulting business and shit like that. After a long trial and an acquittal (IIRC, Republican Dick Thornburgh, former US Attorney General, Pa. Governor and US Senator, joined the coroner’s defense team along the way.) Buchanan sent the FBI out to the jurors houses to find out why they voted the way they did. You’ll also remember she was one of the Bush US Attorneys who wouldn’t resign when Obama came into office, BTW.

    Now, think back to Rove and the Plame case. Remember how he suddenly came up with a witness – I forget her name, but she was some political hack – who came forward to tell Fitz about a conversation she’d had with him over drinks (in some hotel bar, I think – nice public place) that created enough doubt that Fitz was unable to indict, even though Rove was also – in the later-unredacted opinion – identified as a suspect. How much do you want to bet that someone in the GJ process was compelled by an order from on high (generated from Rove) to disclose to the powers on high what Rove needed to know: what Fitz had on him. And then it was a simple matter for him to get someone to come forward to undercut enough of the case to kill it.

    Grand juries have always had some degree of leakiness, but in the past it’s always been the cops and prosecutors leaking information that tends to build their case. Now, we have criminals in the highest levels of government demanding leaks to them, to insulate them from their crimes.

    I suppose it’s no small irony then, EW, that in writing your book about the Libby case and covering the trial, that you were unwittingly covering the last such case there likely ever will be.

  5. scribe says:

    Or, for that matter, consider the possibilities for White House Chief of Staff Rahm, who might have wanted to know what exactly was going on in the Blago case. It involved the President so, ipso facto, it pertained to intelligence.

    Don’t forget, some of the tapes in issue in Blago’s case went missing at some point.

    Someone needs to ask Fitz what he thinks of this memo….

  6. bmaz says:

    @scribe: Hello:

    “Not for nothing, but the part about juror votes is perhaps the most troubling part of a very troubling revelation.”

    Boy howdy, that really leaped out at me too. Unless the freaking grand jurors are targets, their individual identity and vote is about as irrelevant and impertinent as can be imagined.

    That is kind of scary. Seriously what possible benefit does a particular – read individualized – grand juror have to do with diddly squat. The vote totals in gross maybe, but particularized, no.

  7. bmaz says:

    @scribe: Also, if some prick prosecutor pulled that shit with me, I would have taken a bathroom break to visit the presiding judge. They just cannot do THAT. Jeebus.

  8. matt carmody says:

    @scribe: “She prosecuted the Democratic Coroner, a man of some celebrity whose name escapes me now, on some trumped up corruption charges.”
    The medical examiner was Cyril Wecht who had become one of the nemeses of Warren Commission defenders.

  9. scribe says:

    @bmaz: Let’s say one wants to ensure an indictment, or a no true bill.

    A little midnight visit (or broad daylight visit) asking about something or other might help. Or a pain in the ass juror who voted “wrong” could get some extra attention from servants of the government to make his/her life a perennial living hell. Say … the no-fly list or something.

    Just the mere fact of it being known these kind of shenanigans can go on, not necessarily “do”, is likely enough.

    @matt carmody – that’s the name. JFK wasn’t the only dead celebrity he was interested in, either.

  10. EH says:

    “any grand-jury matter involving foreign intelligence, counterintelligence …, or foreign intelligence information”

    Would I be crazy to think that the definitions here are the same ones used to give small-town law enforcement high-powered weaponry? Could it even be that the militarization of civilian law enforcement is used in the same way to expand the scope of limits to sharing info about domestic issues and people that wouldn’t normally be covered under “foreign intelligence?”

  11. Rachel Levinson-Waldman says:

    For what it’s worth – just to clarify for the commenters above – the language suggesting that grand juror votes and deliberations could be disclosed comes from the Patriot Act itself (that is, its amendments to Rule 6(e)), not from Bybee’s memo.

    The pre-Patriot Act secrecy language said (and still says) that certain grand jury information can be disclosed under certain circumstances, “other than the grand jury’s deliberations or any grand juror’s vote.” The Patriot Act amendments authorizing broader sharing where the info relates to foreign intelligence, counterintelligence, or foreign intelligence information say that “ANY grand-jury matter” could be disclosed.

    I can’t imagine that that difference in language was unintentional. But that’s part of what’s astonishing about this whole thing – that is, how much the Patriot Act changed the grand jury secrecy rules even before Bybee got to them.

  12. bmaz says:

    @Rachel Levinson-Waldman: Rachel, thank you for stopping by to say this. If I ever knew the Patriot Act did that, I have long forgotten; thus my issues today.

    Complaints still hold, I am just tardy with them apparently. And, yes, there were certain exceptions for targeted law enforcement or by court order upon substantial showing of necessity, I have never heard of it being done anywhere where the individual grand juror was not himself the target of the investigation, at least not prior to Patriot. Not to say there were not other instances, that is just all I have ever seen, or noted in literature, that I recall.

    Doing a little quick research, you are quite correct the change was originally made in the Act. Ugh.

  13. harpie says:

    @rosalind:
    USDoJ Office of OLC-Opinions

    This web site includes Office of Legal Counsel opinions that the Office has determined are appropriate for publication. Volumes 1-24 of the published Opinions of the Office of Legal Counsel contain the official versions of opinions for the years 1977-2000. Those opinions are also available on Westlaw and LEXIS. Additional volumes containing opinions for subsequent years will continue to be published on a regular basis.

  14. harpie says:

    @harpie:
    Here’s one:

    8/14/97 Disclosure of Grand Jury Material to the Intelligence Community

    Grand Jury material subject to the requirements of Rule 6(e) of the Federal Rules of Criminal Procedure may be disclosed to agencies in the Intelligence Community insofar as necessary to assist government attorneys in performing their duties to enforce federal criminal law, but may not be used by the recipient agencies for other purposes, including intelligence purposes.

    In circumstances where there is a compelling necessity for grand jury material to be made available to the President in furtherance of his constitutional responsibilities over foreign affairs and national defense and where the President has authorized the provision of such material to the Intelligence Community, we believe that a court should and would authorize such disclosure outside the provisions of Rule 6(e), on the basis of Article II of the Constitution and separation of powers principles. Indeed, in such compelling circumstances, a constitutionally necessitated disclosure could properly be made by attorneys for the Government even without prior court approval.

    Section 104(a) of the National Security Act, as implemented by Executive Order No. 12333, does not provide sound authority for Justice Department disclosure of grand jury material related to the national security to the Director of Central Intelligence outside the provisions of Rule 6(e). […]

  15. emptywheel says:

    @bmaz: Well, you gotta know the individual IDs to be able to pressure them.

    This is not the identity AFTER THE FACT–it’s identity during the pre-indictment period. The best time to quash an investigation.

  16. emptywheel says:

    @bmaz: Also note that this uses that definition of foreign intelligence, which is broader than even the broad one in FISA. So when you said does this include NatSec? Yep, it does.

    When they reconsidered PATRIOT in 2005, CivLib groups tried to push for the FISA definition here–or even to limit this sharing to terrorism.

    As you can imagine, no dice.

  17. Rachel Levinson-Waldman says:

    If you look at the Brennan Center blog post, the three pre-Patriot Act OLC memos are linked to in the sentence that starts “A series of OLC memos…”. And it looks like at least two of them are linked to above.

    Those memos did give me pause at first, when I was trying to figure out what the significance of Bybee’s memo was. (And I have no doubt that there’s lots more of significance that Marcy and others who have been immersed in this will be able to point out.) Because it did seem at first that Bybee was saying, look, the OLC has already said that the president’s Article II powers create implicit exemptions to the secrecy restrictions on sharing, and those implicit exemptions exist here too.

    But the memo is broader than that, in that it says those restrictions are lifted not just for the president but for a select group of others too, AND that the reporting and “official use” requirements that the Patriot Act purported to impose don’t apply in a pretty broad range of circumstances. And the Patriot Act itself did more than just reiterate the executive privilege arguments in those memos. So although I haven’t pored over the previous memos, I’m not convinced that the Patriot Act was just redundant, and I definitely think Bybee’s memo reads WAY more into the Act than most people would think it would bear.

  18. emptywheel says:

    @rosalind: The Clinton OLC memos are described in the beginning of this one.

    The big new detail is that the President gets whatever he wants w/o a judges supervision.

  19. scribe says:

    Or, for that matter, ask the likes of Frank Keating and George Pataki what happens when Deadeye Dick gets your life story when he’s running the Bush 2000 VP selection committee.

    Now put that kind of stuff under oath, in a context where refusing to answer is a bad thing, you have no Fifth Amendment rights, and fudging or hedging answers often have results worse than telling the truth.

  20. klynn says:

    Someone needs to ask Fitz what he thinks of this memo….

    Scribe, you get the best question of the century award. Thank you for your comments.

  21. ackack says:

    If anybody is still paying attention to this post. How does this work, mechanically? Who is the one that rolls up on whom, and says, “yeah I get to have whatever shit I want from from this or that GJ?”.

    ALL the GJ’s in the country have been briefed up on this interpretation of that new statute, enough to know they can just hand it over?

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