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38.2.2.1
(10-03-2007)
Introduction to Grand Jury Procedures
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This section establishes procedures related to criminal investigations
conducted by a grand jury. A grand jury is a criminal investigative body wholly
independent of the Service and Chief Counsel.
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The transmission of an administrative criminal investigation to a grand
jury eliminates the potential of any further Service and Chief Counsel control
over the conduct of, and authority to conclusively determine the prosecutive
potential arising out of that investigation. For example, IRC § 7602(d)
provides that an administrative summons cannot be issued, nor can summons
enforcement action be taken with respect to any person referred to the Department
of Justice (DOJ) for prosecution.
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Following transmission of an administrative criminal investigation to
a grand jury, Service and Chief Counsel personnel may access and use grand
jury matters for criminal purposes only to the extent:
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Requested by an attorney for the Government to assist the attorney in
the performance of his/her duty to enforce the federal criminal law
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Permitted by court order
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Such matters become public in the course of trial or other public judicial
proceedings
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Grand jury matters may not be accessed and used at any time by Service
and Chief Counsel personnel for civil purposes unless:
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Permitted by court order
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Such matters become public in the course of trial or other public judicial
proceedings. In this situation the information should be obtained exclusively
from the public record and not from the grand jury records
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Chief Counsel attorneys who receive disclosure of matters occurring
before the grand jury that are subject to the secrecy provisions of Rule 6(e)
shall be excluded from the involvement in non-grand jury matters concerning
the same individuals, entities, and subject matter being investigated by the
grand jury unless all of the information to which they had access as assistants
to the attorney for the Government is the subject of a Rule 6(e) Order or
a matter of public record. Chief Counsel attorneys who are currently involved
in civil cases concerning the individuals, entities, or subject matter that
become the subject of a grand jury investigation referral normally shall be
excluded from involvement in a grand jury investigation; however, these attorneys
are not automatically precluded from participation in decisions regarding
the making of grand jury referrals unless material subject to Rule 6(e) restrictions
is involved.
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The attorney for the Government will usually request the assistance
of Service and Chief Counsel personnel in writing prior to the time that such
personnel access information subject to the secrecy requirements of Rule 6(e).
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Such requests should, to the extent possible, name specific Service and
Chief Counsel personnel and also authorize disclosure to additional Service
and Chief Counsel personnel deemed necessary to provide the requested assistance
to the attorney for the Government.
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If it is deemed necessary to disclose matters occurring before the grand
jury to a Service or Chief Counsel employee who is not specifically named
in the request of the attorney for the Government, the attorney for the Government
should be informed promptly in writing of the identity of the person(s) to
whom this information was disclosed so that the provisions of Rule 6(e)(3)(B)
may be complied with. To the extent possible, the attorney for the Government
should approve disclosures before they occur.
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Service and Chief Counsel personnel who assist an attorney for the Government
do so as assistants to that attorney for the Government rather than as employees
for the Service or Chief Counsel. Thus, all Service and Chief Counsel procedures
that are inconsistent with the function of the grand jury must give way to
the grand jury concepts. The functions and procedures of the grand jury, however,
do not override the limitations on disclosure contained in IRC § 6103.
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