Smith v. CromerSmith v. Cromer
*1 Before WILKINSON, Chief Judge, PHILLIPS, Senior Circuit Judge, and VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation. _________________________________________________________________ Affirmed by published opinion. Judge Voorhees wrote the majority opinion, in which Chief Judge Wilkinson joined. Senior Judge Phil- lips wrote a dissenting opinion.
COUNSEL
ARGUED: Nancy Susanne Forster, OFFICE OF THE PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Albert David Cop- perthite, Assistant United States Attorney, Baltimore, Maryland, for *2 Appellees. ON BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for Appellees.
OPINION
VOORHEES, District Judge:
In this case, employees of the United States Department of Justice
were subpoenaed to testify in a state criminal prosecution in direct
contravention of DOJ regulations. Appellant Cromer, the defendant in
the state case, subpoenaed appellees, Assistant United States Attor-
neys ("AUSA's") Smith and Welsh and Drug Enforcement Adminis-
tration Agent Hornstein. His purpose was to compel their testimony
at trial and to compel production by the Government of his Confiden-
tial Informant file in order to facilitate preparation of his defense to
state narcotics charges. The Government removed the case from
Maryland state court to federal district court pursuant to
I.
Appellees Andrea Smith and Gregory Welsh are Assistant United
States Attorneys for the District of Maryland, and Appellee Larry
Hornstein is a special Agent with the Drug Enforcement Administra-
tion. Appellees (hereinafter, the "Government") are employees of the
Department of Justice and are subject to rules and regulations promul-
gated by the Department of Justice regarding the release of documents
and provision of testimony in court actions.
In preparation for his criminal trial, Cromer subpoenaed Smith, Welsh, and Hornstein for their testimony at trial and also served sub- *3 poenas duces tecum for certain documents, i.e. , "any and all letters, memorandums, and notes written in reference to or on behalf of ... [Cromer] ... to any judge, probation officer, parole commission, attor- ney or pretrial detention service division in the federal and/or state system" (to Smith and Welsh), and the entire contents of his Cooper- ating Individual File (to Agent Hornstein).
The state court judge, Circuit Court Judge Thomas Waxter, Jr., per-
formed an in camera review of Cromеr's Cooperating Individual File,
and, finding the information contained therein to be discoverable pur-
suant to Zaal v. Maryland,
Following a hearing, District Judge William M. Nickerson ana- lyzed the competing interests of the parties and weighed Cromer's due process rights to the evidence he sought against the Government's prerogative to resist having its employees subpoenaed to testify in state court. The district court found that Cromer had raised an insuffi- cient basis to compel the Government to disclose confidential infor- mation and that Cromer had alternative access to the information he sought. For those reasons, and "in light of the policies underlying sov- ereign immunity," the district court granted the Government's motion for protective order and motion to quash the subpoenas.
II.
The issue on appeal is whether the doctrine of sovereign immunity divests the district court of jurisdiction to enforce the subpoenas. We agree with the district court that it does.
The Government moved to quash the subpoenas on the basis of
Justice Department regulations promulgated under the authority of the
"Housekeeping Statute,"
The head of an Executive department ... may prescribe regu- lations for the government of his department, the conduct of its employees, the distribution and performance of its busi- *4 ness, and the custody, use, and preservation of its records, papers, and property. This section does not authorize with- holding information from the public or limiting the avail- ability of records to the public.
Regulations applicable to the production and disclosure of informa-
tion by the Justice Department in federal and state proceedings are
found at
In any federal or state case or matter in which the United States is not a party, no employee ... of the Department of Justice shall, in response to a demand, produce any material contained in the files of the Department, or disclose any information relating to or based upon material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of that person's official duties or because of that person's offi- cial status without prior approval of the proper Department official ....
The Department of Justice regulations at issue herе clearly fall within
the terms of the first sentence of the Housekeeping Statute. That regu-
lation prescribes the conduct of employees, the performance of the
agency's business, and the use of its records. In re Boeh,
poenas if a valid regulation required them not to comply. Ex Parte
Sackett,
In determining whether to provide information in response to a
demand, such as the subpoenas in the instant case, the Justice Depart-
ment considers, among other things, whether disclosure would reveal
a confidential source, reveal investigative records compiled for law
*5
enforcement purposes, disclose investigative techniques, or interfere
with enforcement proceedings.
The instant appeal originated as a motion to quash subpoenas
issued in a state court action and removed to federal district court
under
The district court conducted a hearing, and enforced the subpoenas
based upon findings that the information sought was not privileged,
that Downie was in the best position to provide the information
"which was essential to the fair administration of justice in the civil
action," and that the interference and inconvenience to the EPA would
be minimal. Boron Oil Co. v. Downie,
of authority which directly supports Downie's contention that a fed-
eral employee may not be compelled to testify contrary to his federal
employer's instructions under valid agency regulations." In Touhy,
the Supreme Court had held that subordinate federal officers could
not be held in contempt for failing to comply with a court order in
reliance on a validly promulgated regulation to the contrary. Further,
we noted in Boron that the doctrine of sovereign immunity precluded
the state court--and the federal court on removal--from exercising
jurisdiction to compel Downie to testify contrary to EPA instructions,
and also denied it the authority to review and set aside the EPA's
decision and the federal regulations under which it is made. Boron,
Other circuits which have addressed this issue likewise deny state
court access to federal agency records based upon the doctrine of sov-
ereign immunity. See, e.g., In re Elko County Grand Jury, 109 F.3d
554 (9th Cir. 1997) (state court lacked jurisdiction to compel a forest
service employee to аppear and testify before grand jury in contraven-
tion of USDA regulations); Houston Bus. Journal, Inc. v. Office of the
Comptroller of the Currency,
The dissenting opinion argues that sovereign immunity protects a federal official only if he is not "acting unconstitutiоnally or in excess of his legal authority." Post, at 14. Thus, concludes the dissenting opinion, if Cromer has a constitutional right of access to the informa- tion he seeks, then the subpoenaed Justice Department employees act unconstitutionally by refusing to comply with the subpoenas and sov- ereign immunity is unavailable.
The dissenting opinion is correct in identifying the principle that
sovereign immunity is unavailable when "the statute or order confer-
ring power upon the officer to take action in the sovereign's name is
claimed to be unconstitutional." Larson v. Domestic & Foreign Com-
merce Corp.,
Cromer argues that the Government has waived sovereign immu- nity by engaging in partial disclosure of the information he seeks. Specifically, AUSA Smith wrote a letter to the Maryland Parole Com- mission which revealed that Cromer was working as a CI for the fed- eral government; AUSA Welsh and Agent Hornstein testified on behalf of the state at Cromer's bail hearing. Agent Hornstein provided the CI file to the state court judge for in camera review. However, dis- closure of factual information does not effect a waiver of sovereign immunity as to other related matters. See Swett v. Schenk, 792 F.2d 1447, 1452 (9th Cir. 1986) (Permitting a federal employee to testify on certain matters which are not violative of the regulations at issue cannot be construed as an intent to waive immunity.). Cromer's argu- ment is without merit.
It is also incorrect to conclude that the Justice Department regula-
tions, if properly "complied" with, confer some entitlement on parties
seeking the disclosure of agency records. The regulations do not pur-
port to grant any right of access to applicants. As
III. Cromer, however, contends that Boron is distinguishable from the instant case in that the underlying cause here is a criminal one, not civil, and that his constitutional rights to due process and confronta- tion of witnesses should predominate over the doctrine of sovereign immunity. This is an issue we need not decide, however, because we find that even if some federal official were amenable to state process, and the Roviaro analysis undertaken by the district court below were therefore the correct one, the order of the district court would have to be affirmed.
1
The dissent states that this procedure is "more elaborate and compli-
cated" than its predecessor. Post, at 27-28. The Department's ultimate
disclosure authority, however, still resides in a small number of high-
level officials. Compare
In fact, whatever complexity the dissent discerns in the current regula-
tion results from the Department's effort to vest limited disclosure
authority in local United States Attorneys. See
Relying on the Supreme Court's reasoning in Pennsylvania v.
Ritchie,
(11th Cir. 1989), wherein the defendant was charged in state court with the murder of her husband. The defendant subpoenaed informa- tion from various federal agents and agencies regarding a confidential informant who had information on the activities of Frank Diaz, a fugi- tive from justice who was initially a suspect in the murder. The Gov- ernment filed motions to quash and sought a protective order.
However, the state court ordered the Government to produce the
records for an in сamera review. When the Government failed to
respond to the order, the court issued a show cause order. As in the
instant case, the Government then removed the issue to federal district
court pursuant to
The Cohen court performed a balancing of interests based upon
application of the factors set forth by the Supreme Court in Roviaro
v. United States,
Finding the Cohen approach to be the proper one, the district court
below applied the factors identified by the Supreme Court in Roviaro
v. United States,
Judge Nickerson reasoned that Cromer did not provide the court
with specific facts that would likely be contained in his informant file
that would establish that he was acting as a federal cooperating indi-
vidual at the time of his alleged violation. The district court found that
Cromer's desire to raise a question as to his guilt in the minds of the
jurors, based upon unrelated allegations of his efforts as a cooperator,
was an insufficient basis to compel the government to disclose confi-
dential information in violation of applicable regulations. The district
court also noted that the prior disclosures by Smith, Welsh, and Horn-
stein provided Cromer with another means to get the information in
front of the jury. Additionally, Cromer would have the opportunity to
cross examine Agent Hornstein regarding Cromer's efforts as an
informer on behalf of the DEA when Hornstein is presented as a fact
witness at the trial. For these reasons, and in light of the policies
underlying the doctrine of sovereign immunity, the district сourt
granted the Government's motion to quash the subpoenas. (JA 96-98).
This Court applies a de novo standard of review to the district
court's grant of a protective order, quashing state court subpoenas to
federal officials, as this issue is decided as a matter of law. West v.
Clarke, Murphy Self Employed Pension Plan,
Cromer argues that the district court erred by not reviewing his
Cooperating Individual File, in camera, prior to ruling on the Govern-
ment's motion. However, the record reveals that both parties partici-
pated in a hearing on the motion and were given ample opportunity
to present their respective positions. (JA 51-90). Cromer's attorney
offered a proffer of evidence at the hearing before Judge Nickerson
(JA 51-54), as did the Government (JA 54-55). After considering
these proffers, the district court found that Cromer had presented no
more than "unrelated allegations of his efforts as a cooperator." (JA
96). Cromer "may not require the trial court to search through the ...
file without first establishing a basis for his claim that it contains
material evidence." Ritchie,
Appellant argues to this Court that his Sixth Amendment right to
compulsory process will be violated if the subpoenas issued to three
Department of Justice officials, which seek to compel their testimony
in his state criminal proceeding, are quashed. It is clear that there are
limits upon the due process which is accorded a defendant in present-
ing his defense, and, further, that the right to compulsory process is
not absolute. Washington v. Texas,
court did not err in its determination to quash the subpoenas. First, and most importantly, sovereign immunity bars state compulsory pro- cess against these federal officers. Second, even assuming it is correct to balance the federal privilege against Cromer's articulated interests, Cromer has failed to raise any claim sufficient to overcome the gov- ernment's interest in protecting its confidential law enforcement investigations. Accordingly, the Order of the district court granting the Government's motion for а protective order, quashing the subpoe- nas, and dismissing the instant action is affirmed.
AFFIRMED
2
We do not need to examine here the precise contours of the Govern-
ment's privilege, for Cromer's "unrelated allegations," (JA 96), do not
provide him any interest to weigh against the government's undisputed
interest in maintaining the secrecy of confidential informant files. See
Roviaro,
PHILLIPS, Senior Circuit Judge, dissenting: The ultimate issue in this case, though infrequently presented, is a difficult and important one: How, if at all, may a defendant in a state criminal prosecution obtain from unconsenting federal officials docu- mentary information 1 in their custody that may be material and favor- able to his state-court defense? That question takes on added complication where, as here, the defendant's contested invocation of state subpoena processes to obtain the information is removed, as a separate proceeding, to federal court. At that point, thе issue of the sovereign immunity of the federal officials to the state's process, hence of the jurisdiction of the state court to issue it and, derivatively, of the federal removal court's jurisdiction to enforce it, is raised. And, within that sovereign immunity/jurisdictional issue, 2 there is the fur- ther issue of the bearing upon it of the state-defendant's assertion of constitutional entitlement to the information, countered by an asser- tion of governmental privilege against its disclosure.
In those circumstances, what is the procedure by which a federal removal court should address the conflicting assertions of constitu- tional entitlement to the information on the one hand and both sover- eign immunity and governmental privilege on the other? And, what are the substantive principles that control decision on those issues? I believe that neither the district court nor the majority has fully and correctly identified and dealt with those and related issues that are 1 The defendant sought both to compel the officials to testify and to produce documentary information. Because it was agreed that the offi- cials would be available for cross-examination at trial, the only issue of consequence concerns production of the documentary information. I therefore address only that.
2
Though sovereign immunity to suit, being waivable, is not actually a
limitation on the subject matter jurisdiction of courts, see Idaho v. Coeur
d'Alene Tribe of Idaho,
presented in this case. In consequence of that failure, I believe the dis- trict court erred in quashing the state court subpoena for lack of state court jurisdiction to issue it. I therefore dissent from the majority opinion and would vacate the district court's judgment and remand for further proceedings.
I start with the controlling principles, then turn to their proper application in this case. In the process, my disagreement with the majority will appear.
I.
1. The invocation by a defendant in a state criminal prosecution
of state subpoena processes against an unconsenting federal official
acting in his official capacity is effectively an action against the fed-
eral government because, though non-monetary in effect, it "inter-
fere[s] with the public administration" by seeking to compel official
action at odds with the sovereign's wishes. Boron Oil Co. v. Downie,
2. As such, this separate "action" is subject to removal to federal
court under the federal officials' removal statute,
3. Because Congress has not waived the federal government's
sovereign immunity to suit in state court, issuance of such subpoenas
by state courts is barred by that immunity unless in withholding the
information sought the official is acting unconstitutionally or in
excess of his legal authority. See Larson v. Domestic & Foreign Com-
merce Corp.,
4. Notwithstanding that Congress has waived the federal govern-
ment's sovereign immunity to such process in federal courts, see
5. A state-defendant has a Sixth Amendment right of access under the compulsory process clause to documentary evidence in the custody of third persons that is shown to be material, favorable to his defense, and not merely cumulative. See Washington v. Texas, 388 U.S. 14 (1967) (recognizing compulsory process right in state- defendants to possibly exculpating testimony of third persons despite state-law privilege against disclosure).
6. Even such constitutionally-based rights
3
to disclosure and use
of possibly exculpating evidence are not, however, absolute and may
have to yield to countering claims of privilege made either by the
prosecuting government or by third persons. Compare Davis v.
Alaska,
fair criminal trial overrode government-asserted informer's privilege
and required disclosure of informer's identity and information),
4
with,
e.g., United States v. Jenkins,
7. Whether a constitutional right of access or a countering claim
of privilege prevails in a particular case must be determined by a fact-
specific judicial balancing of the conflicting interests. See Roviaro,
8. An accused seeking access to documentary materials believed
to be material and favorable to his defense is constitutionally entitled,
upon making "at least some plausible showing" of the existence,
materiality, and favorable quality of the materials, to have them sub-
mitted to the trial court for an in camera inspection to determine if
they are of that nature. Ritchie,
inspection and determination is that it be independently conducted by
4
Though Roviaro did not identify the source of the disclosure right it
upheld over the claim of privilege, the Court later located it in the Fifth
Amendment's Due Process Clause. See United States v. Raddatz, 447
U.S. 667, 679 (1980).
*17
the court. Because "the purpоse of in camera review inspection is to
supplement the government's assessment of materiality with the
impartial view provided by the trial judge," United States v. Leung,
sure to the defendant of all or portions of inspected materials, the
court may then, however, consider in a Roviaro balancing inquiry
claims of privilege barring public disclosure and use of the materials
as evidence at trial. See Ritchie,
11. To sum up. Where an accused in state court makes a claim of constitutional right to disclosure of documentary information in custody of federal officials (hence to the unconstitutionality of its withholding) and the officials counter with claims of sovereign immu- nity and privilege, the conflicting claims are conceptually intertwined. The sovereign immunity claim prevails, "jurisdictionally" barring access, unless the withholding is unconstitutional, which depends in turn upon whether the asserted constitutional right of access overrides the privilege. Resolution of the ultimate issue whether access by legal process is "jurisdictionally" barred by sovereign immunity or is enforceable as a matter of constitutional right will therefore emerge from the sequential determinations that are the objects of the first- *18 stage in camera materiality inspection and any follow-up Roviaro bal- ancing inquiry. These then define the constitutionally mandated pro- cedures for resolving the issues prеsented in this case.
II.
I now turn to the way in which these principles were overlooked or misapplied by the district court and to the remedy required to set the case on proper course.
Interestingly, the state court plainly started out on the right track in applying the constitutionally-mandated procedures. At a hearing on Cromer's "Motion for Subpoena for Tangible Evidence" that specifi- cally identified as its target Cromer's federal"Cooperating Individual File," the state trial judge ordered the Government to submit the file for his in camera inspection. Without any formal reservation or objec- tion, the Government submitted the file. Having reviewed it in camera, the state judge, "finding information that is discoverable" under state law, ordered that the file be made available to Cromer's counsel for his eyes-alone review in the judge's chambers pending further orders of the court. JA 10.
Whether the state court would have followed through in applying
the constitutionally prescribed procedures had the Government raised
sovereign immunity and non-disclosure privilege objections is
unknowable. For at this point, having tested state waters without any
formal objection and found them wanting, the Government, as was its
right, removed the proceeding to federal court under
Countering, Cromer asserted constitutional entitlement to the mate- rials under due process and compulsory process guarantees. He con- tended that sovereign immunity was not available to bar the state subpoenas issuance and enforcement because compelling disclosure *19 would not have the requisite effect of interfering with public adminis- tration. Further, he argued that the Justice Department regulations were invalid as a substantive basis for the Department's denial of access and that aside from them the Government had asserted no priv- ilege against disclosure. On this basis, he sought enforcement of the state court subpoena.
The district court's understanding and resolution of these conflict- ing contentions is not too clear to me. The court rightly perceived that in view of Cromer's constitutional claims it should reject the Govern- ment's base-line contention that sovereign immunity absоlutely barred issuance of the state court subpoena. See JA 95-96. Rather, the court thought that because Cromer's "constitutional rights are at stake," "as a matter of equity his due process rights should be bal- anced against the Government's immunity [sic] from having its employees subpoenaed to testify in state court." JA 95. On that view of the matter, the court then undertook what it characterized as a Roviaro balancing analysis. But that balancing, so far as expressed by the court, was a cursory, essentially one-sided one. It was conducted entirely on the basis of the motion papers before the court and the oral arguments of counsel. Critically, it did not involve in camera inspec- tion of the materials specifically identified in Cromer's motion seek- ing disclosure. On one side of the matter, the court noted that Cromer "did not provide the court with specific facts that would likely be con- tained in his informant file that he was acting as a federal cooperating individual at the time of his alleged violation." Then, surmising that Cromer's purpose was "simply to raise a question as to his guilt . . . based on unrelated allegations of his efforts as a cooperator," the court noted that on the other side of the matter,"the Government prof- fered that the file would show that [Cromer] was in violation of his plеa agreement at the time of the state arrest." Without indicating how, even if that were the case, it would necessarily demonstrate that information in the file could not be material and favorable to Cro- mer's state-court defense, the court summarily concluded that Cro- mer's showing was "an insufficient basis to compel the Government to disclose confidential information." 5 JA 96-97.
5
It is unclear what the court considered the regulations' exact legal sig-
nificance to be. By purporting to balance the interests identified in the
*20
This procedure failed to accord Cromer the constitutional protec-
tions to which he was entitled under the principles summarized in
Part I of this opinion. Cromer had specifically identified for the court
a discrete file containing materials that by definition concerned his
status as a "cooperating individual" with the federal government in
matters related to drug enforcement. His suggestion that it might
therefore contain evidence material to his defense in the state drug
prosecution was all that was required to make the minimal "plausible
showing" that triggered his right to have that file subjected to inde-
pendent in camera inspection by the court. See Ritchie,
regulations against Cromer's constitutional claim, the court implicitly rejected the Government's contention that the regulations conferred on Department officials an absolute, judicially unreviewable right to deny access. Apparently--despite its cryptic use of"immunity" in describing the governmental interests--the court considered the regulations to con- fer mere qualified privilege subject to Roviaro balancing. As will appear, the court was surely right in rejecting any claim of absolute privilege, but wrong in believing that the regulations conferred even qualified privi- lege.
6 Furthermore, as Cromer points out, the court apparently misperceived the factual defense proffered by Cromer that might be supported by material information in the file. The record indicates that the proffer was not--as the court posited--that the file might show that Cromer was act- ing under direct orders in engaging in the charged drug transactions, but that they were undertaken as part of a DEA-approved process of gaining access to higher-ups in the drug enterprise being investigated. JA 52, 53. However that may be, the very fact of confusion on this score reveals the need for an actual in camera inspection to determine whether sufficiently identified materials contain information material and favorable to an available defense. That such an inspection might be critical is empha- sized by the fact that when conducted by the state court, it resulted in a determination that disclosure was required.
This was error that deprived Cromer of his constitutional threshold
entitlement to have the material in the file independently inspected "to
supplement the Government's assessment of materiality with the
impartial view provided by the trial judge." Leung,
III.
Because I would vacate and remand for further proceedings, it is
necessary to address two critical points in the majority opinion that
are at odds with the remedy I would order. Both rely upon the sup-
posed authority of United States ex rel. Touhy v. Ragen,
A.
The first point, implicit in the majority's approval of the district court's Roviaro balancing, which accepted that the regulations estab- lished an executive non-disclosure privilege, is that the regulations could have that substantive effect. I disagree, believing that the regu- *22 lations could not, under their authorizing statute, have any such sub- stantive effect, and that Touhy does not hold to the contrary. Consequently, I would hold that the Justice Department regulations themselves confer no substantive power on the Department to deny access to properly demanded materials in its files, certainly not as a matter of absolute, judicially unreviewable discretion, nor even as a matter of qualified executive privilege.
The regulations at issue were promulgated pursuant to
The head of an Executive department or military depart-
ment may prescribe regulations for the government of his
department, the conduct of its employees, the distribution
and performance of its business, and the custody, use and
preservation of its records, papers, and property. This sec-
tion does not authorize withholding information from the
public or limiting the availability of records to the public.
The critical regulation sections relied upon by the Government are
7 (a) In any federal or state case or matter in which the United States
is not a party, no employee or former employee of the Department of Justice shall, in response to a demand, produce any material con- tained in the files of the Department, or disclose any information relating to or based upon material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of that person's official duties or because of that person's official status without prior approval of the proper Department official in accordance with §§ 16.24 and 16.25 of this part.
8 (b) Among the demands in response to which disclosure will not
be made by any Department official are those demands with respect to which any of the following factors exist: (1) Disclosure would violate a statute, such as the income tax laws, 26 U.S.C. 6103 and 7213, or a rule of pro- cedure, such as the grand jury secrecy rule, F.R.Cr.P., Rule 6(e),
The Government contends, and the majority holds, that in combi-
nation the first sentence of
(2) Disclosure would violate a specific regulation[,] (3) Disclosure would reveal classified information, unless appropriately declassified by the originating agency, (4) Disclosure would reveal a confidential source or informant, unless the investigative agency and the source or informant have no objection, (5) Disclosure would reveal investigatory records com- piled for law enforcement purposes, and would interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would thereby be impaired,
(6) Disclosure would improperly reveal trade secrets without the owner's consent.
9 The Government, confronting the district court's rejection of its most extreme position, contends that if balancing was in order, it was properly conducted and led to the correct result. Or so the contention seems to go. See Appellees' Br. at 10, 11.
privilege that was subject, as any privilege, to such a balancing inquiry.
Whatever the Government's position and the majority's--whether of absolute right or mere qualified executive privilege deriving from these regulations--I think they are wrong.
The reason is a simple one.
The last sentence of
Courts carefully attending this "Housekeeping" Statute's legislative
history have so construed it, some in the process holding invalid
agency regulations claimed to confer substantive non-disclosure
rights or privileges. See Chrysler Corp. v. Brown,
As the Eighth Circuit recently pointed out, aside from the fact that
Touhy only avowedly upheld the then-governing order in its effect
upon "internal administrative procedures," it was decided before the
1958 amendment to
This does not mean of course that the Government might not in this
case invoke executive privileges deriving from other legitimate
sources such as the common law informant's privilege recognized and
balanced in Roviaro. See Nixon,
B.
Finally, in an apparent fall-back position, the majority suggests that, per Touhy, the subpoena could properly have been quashed because served upon officials not authorized by the regulations to release the information. Aside from the fact that the Government has not raised this issue, 11 it is without merit.
10
The majority relies upon Boron Oil Co. v. Downie,
Touhy still stands for the proposition that
At the time Touhy was decided, the Department had promulgated
a simple Department of Justice Order which forbade any officer or
employee to produce requested information "except in the discretion
of the Attorney General, the Assistant to the Attorney General, or an
Assistant Attorney General Acting for him." See Touhy,
But the simple order at issue in Touhy no longer exists. In its place,
the present regulations promulgated in 1980 lay down a much more
*28
elaborate and complicated procedure--both for making and for inter-
nally processing demands upon the Department for documentary (or
other) information. Most critically, they diffuse the final authority to
release demanded information among a set of senior officials that
does not, in fact, include the Attorney General, and on internal pro-
cessing contingencies that make identification of the ultimate
decision-maker impossible at the time a subpoena is issued.
Specifically, as they now stand, the regulations at issue provide that
(1) a person such a Cromer may properly make his"demand" for doc-
umentary information by a subpoena duces tecum, see
By these much more elaborate and detailed procedures, the current regulations effectively require no more of a demander such as Cromer than that he subpoena the presumed custodian of documents, leaving it then to internal procedures beyond his control to route the demand to the ultimate authorizer. Because under these regulations the iden- tity of that ultimate authority is beyond the demander's control and knowledge, he could not be required to subpoena that person or indeed to reach him by any other procedural device. It therefore is no longer possible to extrapolate from Touhy (as some courts continue erroneously to do without taking the new regulations' regime into account) that the only proper (and an always available) target of a subpoena duces tecum is the Attorney General or his delegate of record.
Here Cromer did exactly what the current regulations required to
force a response by the Department to his "demand." The only thing
*29
he was required to do beyond issuing a subpoena to the assumed cus-
todian or controller of the files he sought was to submit, upon request
of the U.S. Attorney, "a summary of the information sought and its
relevance to the proceeding." See
Department's power by regulation to centralize its internal processes could not be taken to the point of making it impossible for one seek- ing information to reach some identifiable target. Id. at 473 (observ- ing that this "would be to apply a fox-hunting theory of justice that ought to make Bentham's skeleton rattle"). 12 I believe the only way to interpret the present regulations to avoid that unacceptable conse- quence is to treat them as having constituted any Department "em- ployee" who is served with a subpoena as effectively the authorized process agent for the official to whom the demand is ultimately routed according to the prescribed Department procedures. That is exactly thе design of the regulations which rely upon that employee to set in motion a process whose unfolding is completely beyond the knowl- edge of the person making his demand by subpoena. I would so hold in rejecting any claim that Cromer somehow defaulted procedurally in targeting improper Department officials.
12
As an aside, perhaps to accommodate Justice Frankfurter's admoni-
tion that an effective substantive challenge to access denials must always
be possible, the majority suggests that Cromer might make such a chal-
lenge by an administrative proceeding under