during part of the Reagan Administration. See Response to Congressional Requests for
Information Regarding Decisions made Under the Independent Counsel Act, 10 Op. O.L.C. 68,
76-77 (1986). Mr. Cooper noted that providing a Congressional committee with confidential
information about active criminal investigations would place the Congress in a position to exert
pressure or attempt to influence the prosecution of criminal cases, Id at 76. Congress would
become, "in a sense, a partner in the investigation," id, and could thereby attempt to second-
guess tactical and strategic decisions, question witness interview schedules, debate conflicting
internal recommendations, and generally attempt to influence the outcome of the criminal
investigation. Such a practice would significantly damage law enforcement efforts and shake
public and judicial confidence in the criminal justice system. Id at 76-77.
Decisions about the course of an investigation must be made without reference to
political considerations. As one Justice Department official noted 30 years ago, "the Executive
cannot effectively investigate if Congress is, in a sense, a partner in the investigation. If a
congressional committee is fully apprised of
all
details of an investigation as the investigation
proceeds, there is a substantial danger that congressional pressures will influence the course of
the investigation." Memorandum for Edward L. Morgan, Deputy Counsel to the President, from
Thomas E. Kauper, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Submission
of Open CID Investigation Files 2 (Dec. 19, 1969).
In addition to the problem of Congressional pressure and the appearance of such pressure,
the disclosure of documents from our open files could also provide a "road map"of the
Department's ongoing investigations. The documents, or information that they contain, could
come into the possession of the targets of the investigation through inadvertence or a deliberate
act on the part of someone having access to them. The investigation would be seriously
prejudiced by the revelation of the direction of the investigation, information about the evidence
that the prosecutors have obtained, and assessments of the strengths and weaknesses of various
aspects of the investigation. As Attorney General Jackson observed:
Disclosure of the [law enforcement] reports could not do otherwise than seriously
prejudice law enforcement. Counsel for a defendant or a prospective defendant, could
have no greater help than to know how much or how little information the Government
has,
and what witnesses or sources of information it can rely upon. This is exactly what
these reports are intended to contain.
40 Op. Atty. Gen at 46, The Department has similar interests in the confidentiality of internal
documents relating to its representation of the United States in civil litigation. Our litigation files
usually contain confidential correspondence with client agencies as well as the work product of
our attorneys in suits that frequently seek millions of tax dollars. They also contain "road maps"
of our litigation plans and preparations, as well as confidential reports from experts and
consultants. Those plans could be seriously jeopardized and our positions in litigation
compromised if we are obliged to disclose our internal deliberations including, but not limited to,
4