United States v. John Doe, Inc. I - Oral Argument

ORAL ARGUMENT OF LOUIS R. COHEN, ESQ. ON BEHALF OF PETITIONER

Chief Justice Rehnquist: You may proceed whenever you're ready, Mr. Cohen.

Mr. Cohen: Thank you.

Mr. Chief Justice and may it please the Court:

The first question presented in this case is the question reserved in footnote 15 in the Sells Engineering case: whether attorneys, in this case in the Antitrust Division of the Department of Justice, who had conducted a grand jury investigation into possible bid-rigging and price-fixing and who were thereafter instructed to consider and ultimately to bring a civil action for injunctive relief and damages to the United States could review their own memoranda, the grand jury transcripts committed to their custody under Criminal Rule 6(e)(1), and other documents properly in their possession, without obtaining a court order under Rule 6(e).

When Respondents were notified that the Antitrust Division had decided to bring a civil suit, they sought a protective order prohibiting the filing of the complaint on the ground that it would improperly disclose matters occurring before the grand jury and also prohibiting these same attorneys from referring to grand jury material in preparing, filing, or litigating the civil case.

The district court denied the protective order.

The Court of Appeals agreed with the district court as to the complaint, finding that it did not

"quote from or refer to any grand jury transcripts or documents subpoenaed by the grand jury, and does not mention any witnesses before the grand jury or even refer to the existence of a grand jury."

But the court prohibited any further access to grand jury materials by these attorneys without a Rule 6(e) order.

We think the latter ruling was error and that government attorneys who have conducted a grand jury proceeding and who have been directed to conduct a civil phase of the dispute need not obtain what we have called a threshold 6(e) order before they may review grand jury materials properly in their possession.

To begin with, the plain language of the rule prohibits government attorneys from disclosing matters occurring before the grand jury without a 6(e) order.

Disclosure occurs when information is revealed to at least one new person and not, we think, when the same people review their own memoranda and other familiar materials.

The plain language we think is well chosen.

The prohibition of disclosure to new people is what is needed to serve the repeatedly stated traditional purposes of grand jury secrecy: to shield witnesses and the grand jurors themselves from tampering, to prevent flight, to protect the innocent.

That's a list of grand jury purposes that the Court has stated repeatedly, and none of them, we think, suggests any reason why, when Department attorneys who conducted a attorney investigation are available to bring a civil case, to collect money owed to the United States on account of the same conduct, and they can do so without disclosing matters occurring before the grand jury to any other person, why in that situation the government should nevertheless have to start a civil investigation from scratch.

One comment the Court of Appeals made on this was to echo, but really extend, a point that this Court made in Sells, the concern that civil use of grand jury materials might inhibit witnesses appearing before the grand jury from testifying fully and candidly.

And I want to comment on that.

It seems to me that that can't be right in this context.

In the first place, I find it hard to imagine a grand jury witness who is not inhibited by the threat of criminal prosecution and is not inhibited by the other possibilities for disclosure of his testimony being inhibited by the fact that he may be sued civilly.

But if he is, it seems to me that it cannot be the purpose of Rule 6(e) to give such a witness the false impression that if he testifies in a way that suggests he may have some liability to the United States that won't be followed up and the United States won't attempt to collect.

For example, in this case the Assistant Attorney General in charge of the Antitrust Division received at the end of the grand jury investigation extensive memoranda summarizing the investigation and making recommendations about the future prosecution of the case.

He decided on the basis of that memorandum that a criminal prosecution should not be brought, but that the possibility of a civil case should be further explored, and that civil case was ultimately authorized.

Unless we are to have... and I don't think the Respondents are asking for and I see no possible warrant in Rule 6(e) for... a rule that the grand jury proceedings are to be entirely sealed off and no information from them is ever, even in this sense, to reach anyone who might consider a civil case, in other words unless we're to have a rule that says the Assistant Attorney General who decides whether or not to bring a criminal prosecution may not thereafter decide whether to bring a civil case, there simply is no realistic possibility of assuring grand jury witnesses that what they say may not be used against them civilly.

Now, the Respondents we think would like to go beyond the traditional purposes of grand jury secrecy and to make of Rule 6(e) an exclusionary rule.

The nub of the problem, it seems to me, is right there.

A bona fide grand jury investigation is not an unconstitutional search, and Rule 6(e) is not an exclusionary rule.

Respondents of course object that the grand jury investigation may not be bona fide, that allowing grand jury attorneys to review civil... to review grand jury materials during the civil phase may lead to the misuse of the grand jury to gather evidence for civil cases.

The Court of Appeals rejected that argument here, finding no reason to think that the attorneys had misused the grand jury in this case and no incentive for misuse in any antitrust case, in view of the division's civil discovery powers.

And I can add that I think such misuse is rare or nonexistent.

But in any event, a threshold 6(e) order, a threshold 6(e) proceeding to determine whether the same attorneys can participate at all and can review materials properly in their own possession, is not, I suggest, the way to deal with any such misuse.

Where the attorneys who conducted the grand jury are also conducting civil discovery and trial, the proper moment to deal with a claim that the grand jury gathered evidence that had no bona fide criminal investigative purpose is when the defendant makes such a claim in the civil proceedings.

Defense counsel, who frequently will have lived through the grand jury investigation too, will not be slow to claim that the grand jury gathered evidence that was not relevant to a proper criminal charge, and the court, having the same attorneys before it, can immediately inquire into such a claim and, if it proves well founded, impose an appropriate remedy.

The alternative implicitly suggested by the Respondents is that the grand jury attorneys should be required to go to court for a threshold 6(e) hearing, which would presumably be ex parte, and seek to demonstrate that the grand jury proceedings were conducted in good faith and did not gather any evidence that was not properly part of a criminal investigation.

After demonstrating that, presumably they could review the materials in their own possession.

But that approach, a sort of presumption of irregularity, is not called for by 6(e), is not, we suggest, an efficient way to get at the truth... ex parte hearings to prove a negative rarely are... and will not dispose of the matter, because the defendant will still have the right to make his claim of misuse.

Respondents also object--

Unidentified Justice: What is your idea of what 6(e) means?

Mr. Cohen: --We think that 6(e) provides that those persons who properly have access to grand jury materials may not disclose them to other people without a court order.

That's what this case is about.

Unidentified Justice: Would the court order be routine?

Mr. Cohen: No.

The court order would require a showing of particularized need under this Court's decision in Sells.

Unidentified Justice: There would be a hearing on it?

Mr. Cohen: Yes.

The question is whether any purpose is served and whether the rule requires this threshold hearing.

Respondents argue that attorneys on the prosecution team will inevitably disclose the workings of the grand jury to other people during discovery or trial of a civil case.

That objection, I note, really speaks not to whether such attorneys should be allowed to review their materials, but to a contention that they are not... that they are not making, whether such attorneys may participate in the civil case at all.

But we think it is wrong, for two reasons:

First, they greatly exaggerate the likelihood of such public disclosure by misapprehending what it is that is required to be kept secret.

Facts about persons' conduct do not become privileged merely because the grand jury has investigated it.

What is secret is the workings of the grand jury, and it is perfectly possible to draft a complaint, as we did here, that does not tell anyone about the grand jury, and to conduct discovery and trial without doing so.

Unidentified Justice: Mr. Cohen, I find the phrase

"the workings of the grand jury."

less than totally clear as to just what we're talking about.

You know, certainly if one were to say it takes 23 people to be a grand jury, it has to be an indictment by a majority, you would say that's the workings of the grand jury.

Yet obviously that isn't prohibited from disclosure.

Mr. Cohen: No, and that is not what I meant.

Thank you for giving me an opportunity to clarify that.

By the workings of the grand jury, I mean the particular activities of the particular grand jury, including what witnesses it heard, what those witnesses testified to, when it met, what documents it reviewed.

But the activities of the grand jury as such... to take an example, a pre-existing document which is subpoenaed by the grand jury does not become immune from later disclosure merely because it was subpoenaed by the grand jury, unless its later disclosure would disclose something about what the grand jury's activities were.

Unidentified Justice: Well, what if the government subpoenaed a whole bunch of documents from a particular witness before the grand jury.

The government didn't know of any specific document in this group before, and all of these documents were examined by the grand jury.

Now, could a government attorney then go out and say, well, look, contract such-and-such provided such-and-such?

Mr. Cohen: I'm not sure what you mean by "go out and say".

Unidentified Justice: Well, tell it to someone to whom disclosure is not authorized.

Mr. Cohen: I don't think that the fact that a particular contract was subpoenaed by the grand jury makes that contract privileged from future disclosure in circumstances where the disclosure would not reveal what the grand jury's activities were.

Unidentified Justice: Well, what if a witness is subpoenaed before the grand jury and the witness says: On February 5th I met with Joe Jones.

Can the attorney then go out, the government attorney, and disclose to another person that witness X said on February 5th he met with Joe Jones?

Mr. Cohen: No.

On the other hand, the same testimony can be elicited in discovery or in trial in a context in which it does not reveal the workings of a grand jury.

Unidentified Justice: Mr. Cohen, may I just follow up with the Chief Justice's question.

Supposing they were drafting a civil complaint and the key allegation was there was a meeting between two persons agreeing on prices at a specific time, date, and place; and that the only evidence the government had of that was a written document that had been subpoenaed before the grand jury.

Could they file such a complaint without a 6(e) order?

Mr. Cohen: Yes.

Again, that complaint does not disclose anything about the activities of the grand jury.

Unidentified Justice: Even though at least some people within the government, knowing the full scope of the government's civil investigation, some people would know that the only place that information could have come from was the grand jury?

Mr. Cohen: Well, that's of course not the case here.

Unidentified Justice: No, that was no question.

The specific person who drafted the complaint had no other source of information except the grand jury transcript or grand jury document.

Could he file such a complaint?

You say yes.

Mr. Cohen: Yes.

Now, we have to prove our case, and we have to prove our case by admissible evidence, and we have to prove it by disclosable evidence.

But such a complaint could be filed, and to the extent necessary civil discovery could then be conducted.

And the whole case could, as indeed this case could--

Unidentified Justice: Let me just follow up.

Supposing in the pretrial discovery in the civil case the defendant asks the government in substance, what is the source of... what is the evidence supporting that allegation or something.

Could they answer that interrogatory without a court order?

Identify the witnesses who can so testify or the documents which will support that allegation?

Mr. Cohen: --Again, I think the answer is usually yes, they could, because it ought to be possible to frame an answer to that question that does not identify the grand jury proceedings as the source of that information.

Unidentified Justice: Just identifies the name of the person who happened to be a witness and the government had never talked to except in that--

Mr. Cohen: But it doesn't identify him as a witness.

Unidentified Justice: --I assume that the civil division lawyer or the criminal division lawyer assigned to the civil division who's working with someone else in that division.

How could he possibly not be disclosing to the person that he's working with that he has all sorts of information that this person must assume came from the grand jury?

Mr. Cohen: We don't--

Unidentified Justice: He says witness X will say thus and such, right.

So his colleague says, how do you know that?

He says, well, you shouldn't ask.

Mr. Cohen: --It's our position that if we need to bring in another lawyer with litigating responsibility and that lawyer has to learn matters occurring before the grand jury, we need a 6(e) order to do that.

Unidentified Justice: Well now, that happened in this case, as I understand it, according to a letter to the Clerk of this Court, without a court order.

Mr. Cohen: Something a little different from that happened in this case.

At the end of the grand jury... excuse me.

At the end of the civil investigation, a memorandum prepared by the two attorneys who had conducted the grand jury and who also conducted the civil investigation was forwarded to the various personnel in the Department who had supervisory responsibility for these two people and this litigation.

Most of those personnel were the same people occupying the same positions as they had occupied during the criminal phase, and they had been within the circle, so to speak, during the grand jury investigation stage of the proceedings.

Two of those people were new replacement people.

The Antitrust Division considered whether it needed a 6(e) order for disclosure to those people and concluded that it did not, the theory being that when the litigating attorneys have proper access to grand jury materials they should be able to report to the senior supervisory personnel in the Department, who have no litigating responsibility but reviewing responsibility for lots of cases, without obtaining a 6(e) order, because otherwise every time we change Attorney Generals or Assistant Attorneys General we'll have to go to court and get a whole lot of what should then be routine 6(e) orders.

Unidentified Justice: Do you defend that position here in the face of Sells Engineering?

Mr. Cohen: I think that it raises a special question that the Court need not reach in this case.

The question that we brought before the Court is whether the same people, the litigating attorneys, may continue to have access to the grand jury materials.

In this case, there were two further disclosures, which were not considered by the court below.

I might add that I think that they were palpably harmless both to the public interest and to the defendants.

But I suggest that, if there is to be a challenge to those two further disclosures, it ought to be initiated below.

If the Court were to rule that we can't make those further disclosures to senior supervisory personnel, we will live with that.

That's not a terribly important problem for us.

I might come back to the subject of documents and just make clear one thing.

After the grand jury investigation was terminated in this case, the Antitrust Division issued proper civil investigative demands under the Antitrust Civil Process Act.

The Respondents reserved all their rights, but told us, one formally and two informally, that we already had the documents under the civil investigative demands.

We believe that we now hold all of the documents that we hold pursuant to proper CID's and not pursuant to grand jury subpoena at all.

Unidentified Justice: But did they formally respond by identifying the documents in response to the CID?

At least two of them I think did not.

Mr. Cohen: Well, all three said, we have previously supplied all of the documents covered by the CID.

Unidentified Justice: Do you think that's an adequate response to the statutory demand?

Mr. Cohen: We accepted it under the circumstances.

Unidentified Justice: Formally, on the record?

Mr. Cohen: Well--

Unidentified Justice: Does the record disclose there's been full compliance with the CID's, in other words, full responses to them?

Mr. Cohen: --We issued CID's that we considered were valid.

Unidentified Justice: I understand.

Mr. Cohen: We issued them saying to the Respondents, you may respond by indicating that you have previously supplied documents that are covered by this CID.

And all three of the Respondents did that, and I believe that we wrote them back acknowledging that.

One of the Respondents did it formally, saying, we are complying and what we understand is happening is that, instead of your shipping our documents back to us at the end of the grand jury and our making them available a second time, we are simply leaving them with you.

The other two interposed various--

Unidentified Justice: What I have in mind--

Mr. Cohen: --argumentation, but then said, you have all the documents.

Unidentified Justice: --I don't remember the terms of the statute well enough, but say you serve an interrogatory, you're entitled to a sworn answer that so and so is the case.

When you serve a CID, aren't you entitled to some kind of a sworn response that there's been a complete delivery of everything demanded?

And do you accept a phone call from a lawyer saying, you've got it all, as sufficient?

Mr. Cohen: Not a phone call.

We are entitled... we are entitled to a certificate.

We in this instance accepted letters.

We got a certificate from one and accepted letters from the other two saying, you have all the documents that you've asked for.

The other point I wanted to make under this head is that the problems that could arise during discovery and trial are, we suggest, problems that not only may, but must, be left to be dealt with in particularized 6(e) proceedings or other appropriate proceedings in the court where the civil case is pending.

They cannot be solved by requiring the government attorneys to obtain a threshold 6(e) order giving them access to their own materials, because that order would not in any event authorize them to make disclosure to any other person.

Let me spend a moment in the second question in this case.

We did seek and obtain a 6(e) order for purposes of conferring with the Civil Division about whether it would be appropriate to bring a 6(e)... excuse me... to bring a False Claims Act case here.

The Court of Appeals vacated that order on the ground that we could not possibly show particularized need because we had the Antitrust Civil Process Act and, although it might be hard to do so, we could duplicate all that testimony.

It said that may be expensive and it may take some time, but the Supreme Court has told us in Sells that time and expense can play no part in our analysis.

We think that was just a straightforward and obvious error.

We accept the proposition that we may not have a 6(e) order solely in order to save time and expense.

But that's quite a different proposition from saying that time and expense drop entirely out of the equation, so that, even in a situation where, as here, the time and expense are prohibitive in relation to the use that we want to put the materials, we are denied a 6(e) order and therefore the ability to consult.

I'd like to save my remaining time for rebuttal.

Chief Justice Rehnquist: Thank you, Mr. Cohen.

We'll hear now from you, Mr. Grand.

ORAL ARGUMENT OF PAUL R. GRAND, ESQ., ON BEHALF OF RESPONDENTS

Mr. Grand: Mr. Chief Justice and may it please the Court:

The government has today argued to the Court, as they did in their reply brief, an issue which is not presented in this case.

The question on which this Court granted certiorari is not whether a prosecutor may simply sit in his office and review grand jury materials in the abstract.

At issue before this Court is whether the prosecutor who conducted the grand jury investigation may use the grand jury's secret materials to prepare and litigate a civil case without first obtaining a Rule 6(e) order.

Every time the civil use of grand jury materials has come before this Court, from Procter & Gamble through Douglas Oil, Baggett, and Sells, this Court has limited disclosure in order to preserve grand jury secrecy.

It has done so because the grand jury's purposes and functions can only be carried out if the grand jury is protected by secrecy.

There are affirmative mischiefs, three particular affirmative mischiefs, that this Court noted in United States versus Sells, which mischiefs have been previously noted in prior cases, all of which will come to pass in this case, some of which have already come to pass.

For example, unauthorized disclosure of grand jury material we say will necessarily occur if a prosecutor is permitted to use the grand jury's materials wholesale to bring a civil case.

In fact, as we learned last Friday with the letter from the Solicitor General to Your Honors, such disclosures have already taken place.

Well after the conclusion of the grand jury investigation, grand jury materials were improperly disclosed to attorneys in the Justice Department who had nothing to do with the criminal investigation.

This kind of improper disclosure, we submit, is inevitable if the determinative question is going to be who you are, rather than the use you are making of the materials.

Unidentified Justice: Mr. Grand, I have not yet seen that letter.

Could you just very briefly summarize it?

Mr. Grand: I can't, Your Honor.

Unidentified Justice: What materials was it that you say were disclosed?

Mr. Grand: I can't answer that.

This is a letter from the Solicitor General to Your Honors in which it acknowledges that after the termination of the criminal phase of this case there were unauthorized disclosures within the Department of Justice of matters occurring before the grand jury.

I do not know what those were.

They are concededly matters occurring before the grand jury.

Unidentified Justice: Thank you.

Mr. Grand: And if you don't have a copy, Your Honor, I'll be happy to hand you.

Indeed, it was the risk of just this kind of improper disclosure that led the Second Circuit when it ruled in this case to rule that grand jury materials should not be automatically available to a prosecutor for use in civil litigation.

The Second Circuit noted that there were additional risks, risks to disclosure to paralegals and to secretaries, to new co-counsel who may come onto the case to assist the prosecutor in the civil phase.

And finally, it seems to me no one could seriously argue that the prosecutor's study of each witness' grand jury testimony the night before the prosecutor intends to take the civil deposition of that witness will not increase the risk of improper disclosures during the questioning of those witnesses.

Unidentified Justice: Well it might increase the risk, but certainly studying it by itself does not amount to to disclosure, does it?

Mr. Grand: I agree with Your Honor that the mere abstract study in the office does not increase the risk of disclosure.

But that is not the issue in this case.

Those are not the facts of this case.

In this case, from the district court through the Second Circuit to here the government has readily conceded that it has used grand jury materials so far to frame and draft each paragraph of the complaint.

They will have to use those same grand jury materials in order to respond to interrogatories that we will ask.

Unidentified Justice: Well, okay, let's stop.

In drafting a complaint, you don't ordinarily set out with great specificity facts and exhibits.

I mean, you plead generally.

I don't see why it isn't possible to draft a complaint without disclosing grand jury materials whatever that phrase may mean.

Mr. Grand: I think, Your Honor, you've just hit on the key point.

Yes, it is certainly possible to draft a complaint without quoting from grand jury transcripts and it is possible to draft a civil complaint without naming the grand jury as its source.

But I don't think anyone would argue with the proposition that a complaint that follows a grand jury investigation such as this one is a summary of the substance of what took place in that grand jury.

Now, if the disclosure of a summary of the grand jury's investigation is not a disclosure of matters occurring before the grand jury, then what we have succeeded in doing is totally redefining what is matters occurring before the grand jury.

Unidentified Justice: Well, supposing the complaint alleges that some time during the year 1985 the defendants met and conspired to fix prices, and actually there was testimony before the grand jury that on particular dates particular defendants met at a particular place.

The complaint doesn't go into that detail.

Is that "disclosing" what went on before the grand jury?

Mr. Grand: I think it is unquestionably disclosure of grand jury materials.

Unidentified Justice: What does that phrase mean?

Mr. Grand: Let me address that.

If you look at the rule itself, the rule itself uses that phrase.

Unidentified Justice: Yes.

Mr. Grand: It forbids disclosure of matters occurring before the grand jury.

If the phrase meant only that it is impermissible to disclose transcripts or to disclose "material", first of all, the rule could have said as much; and secondly, there would have been no reason for a prohibition or to impose secrecy on interpreters or grand jurors, because they don't have transcripts anyway.

Secondly, if what the rule was only intended to guard against was the disclosure that the grand jury was the source, the rule could have said that.

But instead, the rule as drafted by Congress I believe was drafted in as broad a frame as possible:

"matters occurring before the grand jury."

And the reason for that was to incorporate the whole substance of what goes on before the grand jury--

Unidentified Justice: Yes, but the fact--

Mr. Grand: --for the simple reason of protecting the function of the grand jury.

I'm sorry.

Unidentified Justice: --The fact that a conspiracy took place on a certain date is not a matter occurring before the grand jury.

The matter occurring before the grand jury is the fact that someone testified that the conspiracy took place on a certain date.

Mr. Grand: That is correct.

Unidentified Justice: Well, if that's correct then your answer to the Chief Justice was wrong.

Mr. Grand: I don't think so.

The only source of that information in the hands of the government is the grand jury.

There could be other sources of that information to the government.

The government had other sources available to it here, for example the ACPA.

But... and so that the record should be clear in this court, there has been no attempt on the part of my clients in any way to suppress the facts.

Unidentified Justice: I understand, but you're going to answer my question?

I still don't understand how it is a matter occurring before the grand jury that a conspiracy took place on a certain date.

Mr. Grand: What is a matter occurring before the grand jury is the fact of the investigation of that, the determination that that took place.

Unidentified Justice: The fact that that was brought to the attention of the grand jury, right?

Mr. Grand: Yes.

Unidentified Justice: So you can use those facts as much as you like, so long as you don't disclose that those facts were presented to the grand jury, isn't that correct?

Mr. Grand: I think it's that last jump--

Unidentified Justice: I didn't think it was a jump.

It's a jump.

It's a question of who's making the jump.

Mr. Grand: --Well, if it is not disclosing matters occurring before the grand jury to paint with a broad brush, to summarize the facts learned by the grand jury, then it will be equally permissible for the government midway through a grand jury investigation to issue a press release that simply says there was a conspiracy going on, to use your words, Justice Scalia.

Or it would be permissible for a grand juror to lean over the fence and tell his neighbor, look what I know.

Unidentified Justice: The only reason that would not be permissible is that, given that manner of disclosure, it is evident that... it is evident that what is being disclosed is not merely the fact of the conspiracy, but that the grand jury was told about the fact of that conspiracy.

It is in essence the disclosure of the fact that it was given to the grand jury that's the nub of the matter, isn't it?

Mr. Grand: I suggest to Your Honor that when the prosecutor is the person who is disclosing the matter in a civil complaint, you have exactly the same inference that flows, particularly when all of the witnesses and all of those subpoenaed to produce documents know that they've only been subpoenaed by the people who were running the grand jury.

Unidentified Justice: But your trouble is he's no longer "prosecutor" in the civil case.

What you are saying is that if a lawyer is in the grand jury qua prosecutor and then he comes out as a lawyer qua civil attorney, he must forget everything that happened in the grand jury.

Isn't that what you're saying?

Mr. Grand: I'm not saying that, Your Honor.

Unidentified Justice: I hope not.

Mr. Grand: I think that the question... I think that, first let me say that the question of disqualification I don't think is before the Court in this matter.

However, it seems to me--

Unidentified Justice: Well, how can he forget that the conspiracy happened on such a date?

He can't ever forget that.

But don't you want him to forget it?

Mr. Grand: --If I may, I believe, Your Honor, that the question of whether a particular prosecutor in a particular case should be disqualified will be a function of how much that prosecutor learned in the grand jury, what his participation was, the relatedness of the civil case to the criminal case, the remoteness in time, all of which are questions more properly addressed to a district court, but none of which exist in this case, where the issue presented is can the prosecutor use, not simply remember in his head, but can the prosecutor use grand jury materials, testimony from several dozens of witnesses, I think is the phrase, and documents to prepare and litigate this case.

Unidentified Justice: That the conspiracy occurred in May of '84?

Mr. Grand: I believe he cannot use the fact that the conspiracy occurred--

Unidentified Justice: Well, he must forget that?

Mr. Grand: --in May of '84--

Unidentified Justice: He must forget that?

Mr. Grand: --I mean, if you're asking me am I arguing about whether he can use his own memory, I'm not arguing that.

I will be happy to if you'd like me to.

Unidentified Justice: I don't see how you can get behind it.

Mr. Grand: In this case, this case that's before the Court, I don't think the question of the prosecutor's memory has arisen.

However, however, if this case is to go forward, if the two prosecutors are still in the Antitrust Division, if those two prosecutors are assigned to this case, then in light of the concessions that have been made in this and in the lower courts that grand jury materials were used by them, then I think they would have to be disqualified.

Unidentified Justice: You are in trouble with another point.

The antitrust lawyer handles civil and criminal cases, isn't that true?

Mr. Grand: That is true.

Unidentified Justice: That's your real problem.

Mr. Grand: Well, Your Honor--

Unidentified Justice: Because he is not... as an antitrust lawyer, he is not automatically a prosecutor.

Mr. Grand: --The matter, this case, was referred by the AID agency to the Antitrust Division in 1981.

A choice was made then to present the matter to the grand jury, even though subject matter jurisdiction over the whole question of the sale of this commodity that is sold nowhere in the United States was raised at the outset.

The ACPA, the Antitrust Civil Process Act, was just as available in 1981, indeed passed after Procter & Gamble.

The ACPA was passed, and the legislative history of that statute suggests it is to be used in cases where it is not clear that a criminal violation has taken place.

So I agree with you that the Antitrust Division has this dual function, but they have more than one set of tools with which to perform that function.

And what we are suggesting is that when they are using... when they're preparing a civil case, then they have to rely on civil materials.

When they're preparing a criminal case, they have to rely on--

Unidentified Justice: Mr. Grand, can I interrupt with, maybe it's a stupid question.

I'm sorry.

On the issue of what is a matter, disclosing a matter occurring before the grand jury, supposing there is an elaborate investigation and all of the evidence supporting the conclusions that the government lawyers draw are derived from the grand jury proceeding, and they return an indictment which spells out the charges in detail.

Is the indictment a disclosure within the meaning of the statute?

And if not, why is a civil complaint a disclosure if they're word for word the same?

They used to return them at the same time frequently.

Mr. Grand: --I believe that there's no question that an indictment surely is a disclosure of matters occurring before the grand jury.

However, that is a permitted disclosure because it is part of the attorney for the government's performance of his duties to enforce the criminal law and therefore it is a permitted use and disclosure.

I think your question raises another interesting point, Your Honor, and that is this.

This case is unusual in the sense that there was a grand jury investigation that resulted in no indictment.

Most cases that are investigated by the grand jury result in indictments.

When there is an indictment, then the indictment exists from which a civil complaint can be framed.

If there is a trial thereafter, the trial material exists and grand jury secrecy does not have to be--

Unidentified Justice: Well, if they return the two pleadings simultaneously, they file an indictment and a civil complaint simultaneously, are both permitted disclosures or are both... or is it true that neither of them is a disclosure within the meaning of the rule?

Or do you say one is a disclosure and the other is not?

They're word for word the same in the charging paragraphs.

Mr. Grand: --To me they would both be disclosures, there's no question about it.

Unidentified Justice: And one is permitted and one is not.

Mr. Grand: One is permitted and one is not.

Now, one can avoid that dilemma by having the complaint drafted from the indictment after the indictment is published.

But it is clear that the disclosure of the indictment is a permitted disclosure because it is in furtherance of the attorney's fulfillment of his duties to enforce the criminal law.

Unidentified Justice: I suppose under your view of the situation it might be an unauthorized disclosure if the government attorneys tried to duplicate getting the information in the civil case, because they would have to rely on information disclosed before the grand jury to show who to subpoena and what evidence to request.

Would your argument take you that far?

Mr. Grand: We have not... we do not feel that the issues in this case require us to go that far.

Unidentified Justice: Well, it certainly sounds like your argument would lead you to that result.

Mr. Grand: Certainly other attorneys could do that, and in this case, as long ago as 1981, the Justice Department could have made the choice based on the reference from the AID agency, to look into the matter on a civil basis.

Unidentified Justice: Your argument just leads to the inevitable conclusion that the Justice Department has no choice.

They have to proceed first in a civil case.

I mean, that's the sum and substance of where it would lead.

Mr. Grand: I don't think so, Your Honor, for the following reasons.

As I was saying to Justice Stevens, this situation that we have before the Court today arises relatively rarely.

It arises only in the case where there has not been an indictment.

In that situation, the government cannot in our view use grand jury materials to bring a civil case.

But it is only in that situation.

Now, there are many instances where the government of the United States functions very effectively... indeed, one might say that the Securities and Exchange Commission with its parallel system of investigations is having a very good year.

They are not inhibited by the fact that they are unable to use grand jury materials to conduct their own civil investigations.

Unidentified Justice: Well, if your argument is right, then the Court of Appeals was clearly wrong when it said there is no particularized need here for the government, because they can go out and duplicate the discovery on their own, because under your view they couldn't.

So if you're right on the first argument, then the court was certainly wrong in saying there was no particularized need, wasn't it?

Mr. Grand: I don't think so, Your Honor.

Unidentified Justice: I don't see how you can have it both ways.

Mr. Grand: Well, there was no attempt in November of 1984, when the government sought a 6(e) order ex parte, there was no attempt by the government to make any showing of particularized need to reveal grand jury materials.

Instead, what they went into the district court and said is they wanted to disclose all of the grand jury materials in order to seek the advice of the civil division.

For that, the Second Circuit said they had not shown particularized need.

And under the decisions of this Court, they clearly had not.

Unidentified Justice: It would not make any difference to your analysis, Mr. Grand, I take it, that the prosecutor may have known completely about what a witness was to testify to and having gone over the testimony word for word before the witness ever testified before the grand jury?

Mr. Grand: Not in this case, in light of the way the issues have been framed and the concessions made.

I might, Your Honor, point to--

Unidentified Justice: So what you're really--

Mr. Grand: --Excuse me.

In Baggett, which--

Unidentified Justice: --What you're really arguing for is not just non-disclosure.

You're arguing for immunity.

Mr. Grand: --No, I'm not.

Unidentified Justice: Well, I don't see how.

Mr. Grand: Most respectfully, I'm not.

Unidentified Justice: I don't see how you can escape that if the prosecutor knew about it without recourse to the grand jury and before the grand jury ever sat.

Mr. Grand: Then I agree with you.

I thought you were addressing a different point.

You see, in Baggett one of the issues in the Baggett case was whether or not an interview conducted by a prosecutor pursuant to a grand jury subpoena was grand jury materials.

And the Seventh Circuit held it was and those are part of the materials for which there was a failure to show that--

Unidentified Justice: You agree then that if the prosecutor knew of a particular piece of testimony or of a document without recourse to grand jury subpoena, then it would not be disclosure for him to talk about it?

Mr. Grand: --My understanding is that that accurately states the broad status of the law on that subject.

If the prosecutor comes by information independent of the grand jury, it's not covered by grand jury secrecy.

Unidentified Justice: Mr. Grand, about your proposition that it doesn't really inhibit the government very much to have to conduct a separate civil proceeding.

You say the SEC, for example, is not inhibited by the fact that it has no criminal authority, it just proceeds separately.

Isn't it the case... it used to be and I assume it still is... that once a criminal investigation is afoot, a civil investigation by the SEC or by anybody else stops unto the criminal investigation is completed?

Doesn't it?

Mr. Grand: I'm smiling only because I wish it was still the case.

Unidentified Justice: It's not still the case?

Mr. Grand: It's not still the case, and we have a number of clients who are suffering because of it.

The SEC goes right on doing its investigation without any regard to what's happening in the grand jury.

I might also point out something else, Your Honor, and that is in December the ACPA, the Antitrust Civil Process Act, was amended in order to make it available for investigation of false claims.

Rule 6(e) on its face is a general rule of secrecy.

The exceptions are for limited and specific purposes.

Grand jury materials have never been freely available for civil litigation because secrecy is so essential to the functioning of the grand jury.

The rule does not single out attorneys for the government for any special mention except in connection with their duty to assist the grand jury in enforcing the criminal law.

When the phrase "attorney for the government" appears in the rule, it is either in connection with that specific duty or the attorneys for the government are treated exactly the same as stenographers, interpreters, and the grand jurors themselves.

The rule binds all present to secrecy.

It has no provision for general civil use.

As this Court held in United States against Sells Engineering, Congress intended (a)(1) to have the same limitations on use that are explicit in (a)(2), and (a)(2) specifically prohibits government personnel from using grand jury material in civil litigation.

But since a prosecutor will need assistance in the civil phase of a complex case, the government now finds it necessary to totally rewrite the language of (a)(1).

As a consequence, the government is now arguing in this Court that an attorney for the government in (a)(1) means not only attorneys who participated in the criminal investigation, but also secretaries and also paralegals, whether or not those people had been hired or assigned or had anything to do with the criminal investigation.

I respectfully submit that if Congress had intended secretaries and paralegals to be included in (a)(1), it would have been easy enough to draft them into the provision.

To me, the danger of what is threatened here is a kind of dual danger.

The government is arguing that review is not use, and then they are also arguing that so long as they disclose only a summary, without quotation marks and without naming the grand jury as the source, they have made no disclosure of grand jury materials.

If that were the case, then the grand jury... the government alone would be able to determine what constitutes disclosure of grand jury materials and we will have established a very dangerous precedent, which I fear will effectively end grand jury secrecy and the effective functioning of the grand jury.

I want to close on one note, and that is that if this Court permits prosecutors to use grand jury materials to litigate civil cases without a court order, then the government will overrule this Court's decision in Sells merely by the way it assigns its attorneys.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Grand.

Mr. Cohen, do you have something more?

You have three minutes remaining.

REBUTTAL ARGUMENT OF LOUIS R. COHEN, ESQ. ON BEHALF OF PETITIONER

Mr. Cohen: Yes, a couple of points, Mr. Chief Justice.

First, it would, we believe, have been possible to bring and try a civil case in this matter without public disclosure that there had ever been a grand jury investigation of this conduct.

That's true notwithstanding the proceedings on the issues that are now before us.

There was no disclosure of the subject matter considered by the grand jury, and it is very possible that no reference to the grand jury need ever have been made.

The Respondents made that a little more difficult, because they filed a brief in the Second Circuit which identified the industry and the foreign country involved, but that was the first and only public disclosure of those two facts.

And without that, it would have been possible to avoid any connection between this case and the grand jury at all.

Second, the problem... substantially all of the problems to which Mr. Grand refers are, as was suggested, problems that would arise whenever a prosecutor who has memory of a grand jury is allowed to participate in a civil case.

We don't think the problems are real, but in any event they go to a point that he neither makes nor could find support for in Rule 6(e), which is the question of disqualification.

Conversely, as I said before, they are problems that would not be solved by the kind of threshold 6(e) order that is at issue here, which would not in any event permit such disclosure.

Unidentified Justice: Mr. Cohen, what about disclosure to secretaries and such?

Is that at issue here?

Mr. Cohen: I don't think it should be.

For 31 years when the rule referred only to disclosure to attorneys for the government, I think it was assumed that the attorneys for the government would occasionally have to get their memoranda summarizing a grand jury typed, and that the secretary operating under the supervision of the lawyer was an extension of the lawyer.

I want to respnd to the assertion that there was no showing of particularized need with respect to the... I'm sorry.

Unidentified Justice: I'm sorry, I know you want to go on.

But let me press on.

3(a)(1) says 3(a)(2) says

"such government personnel as are deemed necessary to assist an attorney for the government in the performance."

The rule seems to envision attorneys being different from those who are necessary to assist the attorney.

So permitted disclosure to an attorney would seem not automatically to embrace disclosure by the attorney to a secretary.

Mr. Cohen: It doesn't embrace disclosure by attorneys to other people who are assisting them, such as economists and accountants.

And the Court in Sells summarized the reason why 3(a)(2) was added to the statute, and it was not to cover secretaries, but to cover other kinds of personnel.

Chief Justice Rehnquist: Thank you, Mr. Cohen.

The case is submitted.