Justice Manual § 9-11.242

Federal Rule of Criminal Procedure 6(d) provides that the only prosecution personnel who may be present while the grand jury is in session are "attorneys for the government." Rule 1(b) defines attorney for the government for Federal Rules of Criminal Procedure purposes as the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, an authorized assistant of a United States Attorney, and certain other persons in cases arising under the laws of Guam.

An agency attorney or other non-Department of Justice attorney must be appointed as a Special Assistant or a Special Assistant to the Attorney General, pursuant to 28 U.S.C. § 515, or a Special Assistant to a United States Attorney, pursuant to 28 U.S.C. § 543, in order to appear before a grand jury in the district of appointment.

A letter of appointment is executed and the oath of office as a Special Assistant to a United States Attorney must be taken (see 28 U.S.C. §§ 515, 543 and 544). Requests for such appointments must be made in writing through the Director of the Executive Office for United States Attorneys and must include the following information:

The facts and circumstances of the case;

The reasons supporting the appointment;

The duration and any special conditions of the appointment;

Whether the appointee may be called as a witness before the grand jury. If such a possibility exists, it ordinarily would be unwise to make the appointment;

How the attorney has been informed of the grand jury secrecy requirements in Federal Rule of Criminal Procedure 6(e).

If the appointee is an agency attorney, whether the agency from which the attorney comes is conducting or may conduct contemporaneous administrative or other civil proceedings. If so, a full description of the substance and status of such proceedings should be included; and

If the appointee is an agency attorney, a full description of the arrangements that have been made to prevent the attorney's agency from obtaining access through the attorney to grand jury materials in the case.

Finally, the request must contain the following statement, signed by the agency attorney:

I understand the restrictions on the grand jury secrecy obligations of this appointment as a Special Assistant to the United States Attorney and do hereby certify that I will adhere to the requirements contained in this letter.

The use of agency attorneys as Special Assistants before the grand jury has been upheld by the courts. See United States v. Wencke, 604 F.2d 607 (9th Cir. 1979); United States v. Birdman, 602 F.2d 547 (3d Cir. 1979); In re Perlin, 589 F.2d 260 (7th Cir. 1978). The United States Attorney or Departmental attorney with responsibility for the case retains full responsibility, notwithstanding the participation of government attorneys from other agencies.