Justice Manual § 9-2.159

It is the responsibility of the Department of Justice to enforce the law vigorously and it cannot abdicate this duty because of possible embarrassment to other agencies of the government. Situations may arise where substantial reasons of national security, foreign policy or the like may require the Department to abandon an investigation, forego litigation, or seek dismissal of a case. However, such action should be taken only after the most careful consideration of all of the relevant facts and then only with the personal approval of the Assistant Attorney General (AAG) in charge of the Division having responsibility for the case.

Accordingly, all United States Attorneys handling cases in which another government agency refuses to produce records or witnesses necessary for successful litigation of the case are directed to proceed in the following manner:

In no event should the United States Attorney accept the opinion or representation of the agency that such records or witnesses cannot be made available without determining all of the specific facts upon which the agency relies to support its refusal.

If the United States Attorney is not satisfied that the facts justify the refusal, he/she should so advise the agency and seek to procure the evidence requested of the agency.

If the United States Attorney concurs that there are sufficient and valid reasons to support the agency's refusal to produce the necessary evidence, he/she should advise the AAG in charge of the division having jurisdiction over the subject matter of the case of his/her conclusion. That AAG, after consultation with the Deputy Attorney General, will authorize the United States Attorney, if necessary and appropriate, to terminate the investigation, forego the litigation, or dismiss the case. A full statement of the facts supporting the conclusion of the United States Attorney should be set forth in the correspondence to the appropriate AAG.

The United States Attorney should also apprise the appropriate AAG of any incidents coming to his/her attention where he/she believes any agency of the federal government is not cooperating in his/her efforts to obtain the full disclosure of the facts to enable him/her to make an intelligent judgment as to whether the agency's refusal to produce requested evidence is justified.