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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

(Posted 2013-April-08)

The Patriot Act amendments to the confidentiality provisions in Rule 6(e) of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2517 (part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968) did not change this Office’s prior opinions that these provisions are subject to an implied exception where disclosure of information is necessary to permit the President to discharge his constitutional responsibilities for national security under Article II.

The decision to disclose such information to other Executive Branch officials is a matter for the President himself to determine. He may delegate that authority to others—including by an oral direction—but officials such as the Attorney General may not exercise an inherent constitutional power of the President to disclose such information to others without some direction from the President.

The Patriot Act amended Rule 6(e) and Title III to provide that matters involving foreign intelligence or counterintelligence or foreign intelligence information may be disclosed by any attorney for the government (and in the case of Title III, also by an investigative or law enforcement officer) to certain federal officials in order to assist those officials in carrying out their duties. 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.


Federal Reserve Board Efforts to Control Access to Buildings and Open Meetings

The Board of Governors of the Federal Reserve System may, consistent with its obligations under the Government in the Sunshine Act, place observers of an open meeting of the Board in a separate room to watch the meeting on closed-circuit television.

It is permissible under both the Sunshine Act and the Privacy Act for the Board to require disclosure of personal information and satisfaction of a security check as a condition of entering the Board’s buildings for access to the separate room to observe an open meeting.


Authority of Federal Judges and Magistrates to Issue “No-Knock” Warrants

Federal judges and magistrates may lawfully and constitutionally issue “no-knock” warrants where circumstances justify a no-knock entry, and federal law enforcement officers may lawfully apply for such warrants under such circumstances.

Although officers need not take affirmative steps to make an independent re-verification of the circumstances already recognized by a magistrate in issuing a no-knock warrant, such a warrant does not entitle officers to disregard reliable information clearly negating the existence of exigent circumstances when they actually receive such information before execution of the warrant.


Survey of the Law of Expatriation

Expatriating a U.S. citizen subject to the Citizenship Clause of the Fourteenth Amendment on the ground that, after reaching the age of 18, the person has obtained foreign citizenship or declared allegiance to a foreign state generally will not be possible absent substantial evidence, apart from the act itself, that the individual specifically intended to relinquish U.S. citizenship. An express statement of renunciation of U.S. citizenship would suffice.

An intent to renounce citizenship can be inferred from the act of serving in the armed forces of a foreign state engaged in hostilities against the United States.


Applicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall

The Ineligibility Clause of the Constitution would not bar the President from appointing Congressman Tony P. Hall as United States Representative to the United Nations Agencies for Food and Agriculture, with the rank of Ambassador.


Application of Conflict of Interest Rules to Appointees Who Have Not Begun Service

Conflict of interest rules first apply when an appointee begins the duties of his office.


Authority of the Chemical Safety and Hazard Investigation Board to Delegate Power

Although the Chemical Safety and Hazard Investigation Board may not name an “Acting Chairperson,” it may delegate administrative and executive authority to a single member while the position of chairperson is vacant.


Centralizing Border Control Policy Under the Supervision of the Attorney General

In general, the President may not transfer the functions of an agency statutorily created within one Cabinet department to another Cabinet department without an act of Congress.

The President may not delegate his presidential authority to supervise and control the executive departments to a particular member of the Cabinet where no statutory authority exists to do so.

The President may exercise his own power to establish a comprehensive border control policy for the federal government and direct a single Cabinet member to lead and coordinate the efforts of all Cabinet agencies to implement that policy.


Role of Legal Guardians or Proxies in Naturalization Proceedings

Section 504 of the Rehabilitation Act requires the Immigration and Naturalization Service as a reasonable accommodation to permit a legal guardian or proxy to represent a mentally disabled applicant in naturalization proceedings.


Application of 18 U.S.C. § 203 to Former Employee’s Receipt of Attorney’s Fees in Qui Tam Action

Title 18, section 203, U.S. Code, would not bar a former federal employee from sharing in attorney’s fees in a qui tam action, provided that those fees, calculated under the lodestar formula, are prorated such that the former employee does not receive any fees attributable to his time in the government.

Updated: April 2014