How To Subpoena A Government Agent:
Compliance With Touhy Regulations for ICE, CBP, DEA and FBI
Elizabeth A. O’Connell, Research and Writing Specialist,
Federal Public Defender’s Office for the Western District of Texas
If you seek the testimony of a government agent, whether Immigration and Customs
Enforcement (“ICE”), Customs and Border Protection (Border Patrol) (“CBP”), Drug Enforcement
Agency (“DEA”), or Federal Bureau of Investigation (“FBI”), you may soon find yourself up against
so-called Touhy regulations. The purpose of this paper is to enable you to comply with those
regulations, so that you may successfully subpoena a government agent when doing so would aid in
the defense of your client. Alternatively, this paper provides arguments you can use to challenge the
unfair application of Touhy regulations to your client’s case.
I.

What are Touhy regulations?

The term “Touhy regulations” derives from the Supreme Court’s decision in United States
ex rel. Touhy v. Regan, 340 U.S. 462 (1951). In Touhy, an inmate of the Illinois State Penitentiary
sought the testimony of the agent in charge of the FBI in Chicago, seeking evidence for use in a
federal habeas corpus case that his criminal conviction had been obtained by fraud.1 The agent
refused to provide the information requested, citing an order promulgated by the Department of
Justice under the authority of former 5 U.S.C. § 22 (now 5 U.S.C. § 301).2 The Supreme Court held
that the statute was constitutional, and that the regulation was therefore a proper exercise of
executive authority.3

1

340 U.S. at 463-65.

2

Id. at 465.

3

Id. at 469.

Following Touhy, the various executive agencies enacted regulations governing the release
of information by subordinates, whether that information was sought in the form of testimony or
documents, in response to a demand or subpoena in a court case. Each executive agency has its own
set of regulations.4 Thus, the first thing you must determine is precisely which executive agency you
are dealing with. The agencies you will most frequently seek testimony from will be DEA, FBI, ICE,
and CBP. Each of these agencies is under the umbrella of a larger executive agency; the regulations
pertinent to that agency will control how and from whom you make your demand.
II.

How do you comply with Touhy regulations?

Although there are arguments you can make to object to Touhy regulations, often the most
practical course will be simply to comply with them. Indeed, at least with respect to some
arguments, an attempt at compliance may be necessary before your objections will be heard.
Regulations for the agencies defense attorneys most frequently subpoena are appended to this paper;
however, because the regulations are subject to frequent change, you should check the current
regulations whenever you seek to subpoena or demand the testimony of a government agent.
A.

Department of Justice regulations

The DEA and FBI both fall under the umbrella of the Department of Justice (“DOJ”).5
Disclosure of documents and testimony by DOJ employees is covered by 28 C.F.R. §§ 16.21-16.26,

4

For example: 17 C.F.R. §§ 200.301 et seq. (Securities and Exchange Commission); 26
C.F.R. §§ 301.9000-2 et seq. (Treasury (including IRS)); 32 C.F.R. §§ 97.3, 97.6 (Department of
Defense); 24 C.F.R. §§ 15.201 et seq. (Housing and Urban Development); 7 C.F.R. §§ 1.2101.219 (Department of Agriculture); 39 C.F.R. §§ 230.10 et seq. (United States Postal Service); 22
C.F.R. §§ 172.1 et seq. (State Department).
5

See Department of Justice Organization Chart, available at
http://www.justice.gov/agencies/index-org.html (last visited March 15, 2011).
2

attached to this paper as Appendix A. Section 16.23 governs disclosure in cases where the United
States is a party, which of course includes every criminal case. It provides that employees of the
DOJ are authorized, after consultation with the “originating component” to “reveal and furnish to
any person . . . such testimony, and relevant unclassified material, documents, or information secured
by any attorney or investigator of the Department of Justice.”6 For a criminal case, the “originating
component” is the Assistant Attorney General in charge of the Criminal Division.7 In deciding
whether to make a disclosure, DOJ considers whether the disclosure is appropriate under the
applicable rules of procedure and substantive law regarding privilege, and whether any of a number
of special factors prohibiting disclosure are present in the case.8 When testimony is sought, “an
affidavit, or if that is not feasible, a statement by the party seeking the testimony or by the party’s
attorney setting forth a summary of the testimony sought must be furnished to the Department
attorney handling the case or matter.”9
These regulations mean that, in order to obtain the testimony of a DEA or FBI agent, an
attorney must make a demand to the Assistant Attorney General of the Criminal Division and
provide a summary of the testimony sought to United States Attorney and to the Assistant United
States Attorney handling the case. To satisfy this requirement, counsel should send a letter to the
Assistant Attorney General, with copies to the United States Attorney and the Assistant United States

6

28 C.F.R. § 16.23(a).

7

See 28 C.F.R. § 16.24.

8

28 C.F.R. § 16.26(a), (b)

9

28 C.F.R. § 16.23(c).
3

Attorney handling the case. The letter should contain a summary of the testimony that is being.
sought.10
B.

Department of Homeland Security regulations

CBP and ICE both fall under the organizational umbrella of the Department of Homeland
Security (“DHS”).11 Testimony by DHS employees is governed by 6 C.F.R. §§ 5.41-5.45 (Attached
to this paper as Appendix B). Section 5.43 provides that “only the Office of the General Counsel
is authorized to receive and accept subpoenas, or other demands and requests directed to the
Secretary, the Department, or any component thereof, or its employees, whether civil or criminal in
nature.” Section 5.45 provides that “[i]f official information is sought, through testimony or
otherwise, by a request or demand, the party seeking such release or testimony must . . . set forth in
writing, and with as much specificity as possible, the nature and relevance of the official information
sought.” A demand for testimony by an ICE or CBP agent should therefore be addressed to the
Office of General Counsel for DHS, with copies to the United States Attorney and the Assistant

10

The mailing address for the Assistant Attorney General for the Criminal Division is:

Mr. Lanny A. Breuer
Assistant Attorney General
Criminal Division
United States Department of Justice
Room 2107
950 Pennsylvania Ave., NW
Washington, D.C. 20530-0001
11

See Department of Homeland Security Organization Chart, available at
http://www.dhs.gov/xabout/structure/editorial_0644.shtm (last visited March 15, 2011).
4

United States Attorney handling the case, and contain a summary setting forth the nature of the
testimony sought and its relevance to the case.12
Note that, while the DOJ regulations provide that a request under Touhy regulations should
be accompanied by a brief summary, the DHS regulations require that a demand for testimony “set
forth . . . with as much specificity as possible, the nature and relevance of the testimony sought.” As
a practical matter, it is best to first submit a summary of the testimony sought – i.e., enough to give
the reader the general idea of what is sought, without giving away your defense. For example, if you
expect the agent to provide an alibi for your client, you don’t have to say that. You can simply state
that you expect the agent to testify as to the whereabouts of your client on the day in question. After
submitting a summary, contact the agency to which you are addressing the demand for testimony,
and ask whether you have sufficiently complied. If the agency feels you have not sufficiently
complied, submit a more detailed summary. If you feel that you can’t be more detailed without
giving away too much of your defense strategy, then it is probably time to object to the application
of Touhy regulations in your case.
II.

Can you object to Touhy regulations?

If the Government or court resists your request for witness testimony, or if compliance with
Touhy regulations is not feasible, there are a few possible objections to the application of Touhy
regulations. These include (a) that Touhy does not apply in criminal cases; (b) that Touhy regulations

12

The mailing address for the Office of General Counsel for DHS is:

Mr. Ivan K. Fong
Office of General Counsel
U.S. Department of Homeland Security
Washington, D.C. 20528-1002
5

violate the right to compulsory process; and (c) that Touhy regulations violate the rules of reciprocal
discovery. These arguments will be briefly laid out in the sections that follow. Whatever argument
you may choose to make when the court excludes your witnesses based on Touhy regulations,
remember to preserve the objection for appeal. In order to preserve an objection to the exclusion of
witness testimony, you must not only state the basis for your objection, but also make an offer of
proof regarding the expected testimony of the witness you expected to call.13
A.

Touhy does not apply in criminal cases.

It may be possible to argue that Touhy regulations simply are not applicable in criminal cases.
In Alexander v. FBI, District Judge Royce Lambreth of the District of Columbia concluded that
“[t]he Supreme Court’s holding in Touhy is applicable only in cases where the United States is not
a party to the original proceeding.”14 Judge Lambreth read Touhy narrowly, as “simply hold[ing] that
a subordinate government official will not be compelled to testify or produce documents in private
litigation.”15 In the judge’s view, Touhy was directed toward a concern about “private litigants
seek[ing] to drag a witness employed by the federal government or one of its agencies into court to
offer some testimony on a particular party’s behalf.”16 While Judge Lambreth’s view seems

13

See United States v. Akpan, 407 F.3d 360, 374 (5th Cir. 2005) (finding defendant
properly preserved issue of exclusion where “counsel held a lengthy discussion with the district
court in which he informed the court about the testimony of witnesses that he intended to call”);
cf. United States v. Triplett, 922 F.2d 1174, 1183 (5th Cir. 1991) (finding error unpreserved
where “[defendant] failed to make an offer of proof at trial setting forth the substance of
questions and responses”). See generally, FED . R. EVID . 103(a)(2).
14

186 F.R.D. 66, 70 (D.D.C. 1998).

15

Id.

16

Id. at 71.
6

persuasive, it is unlikely to gain much traction in the Fifth Circuit in light of circuit precedent
applying Touhy in cases where the United States is a party (see below).
B.

Touhy regulations violate the defendant’s right to compulsory process.

In United States v. Wallace,17 “the defendants contend[ed] that the trial court’s quashing of
the subpoenas [to government agents] denied them a fair trial and the right to present evidence on
their behalf and compel witnesses to testify.”18 The Fifth Circuit first held (citing a Tenth Circuit
case) that “[t]he Department of Justice regulations for subpoenaing witnesses have been held to be
valid and mandatory.”19 The court then declined to reach the constitutional questions because the
defendants had failed to comply with the regulations,20 but nevertheless “note[d] that the necessity
or value of the two agents’ testimony was questionable.”21 The court therefore “h[e]ld, in the
alternative[,] that the exclusion of the two witnesses may be upheld under the trial court’s power to
control the trial and limit testimony that would be cumulative and marginally relevant.”22
In a case dealing with Department of Homeland Security regulations, the Fourth Circuit
concluded that neither the Department regulations nor 5 U.S.C. § 301 contained any limitation on
the application of the Department’s Touhy regulations to criminal cases.23 The court held that

17

32 F.3d 921 (5th Cir. 1994).

18

Id. at 929.

19

Id. (citing United States v. Allen, 554 F.2d 398,406 (10th Cir. 1977))

20

Id.

21

Id.

22

Id.

23

United States v. Soriano-Jarquin, 492 F.3d 495, 504 (4th Cir. 2007).
7

“[n]either the existence nor the application of the Touhy regulations deprived the defendant of any
right.”24 The court added that “the defendant made no attempt whatsoever to comply with the DHS
regulations. Given this, he can hardly be heard to complain.”25 Finally, the court concluded that the
defendant’s constitutional claims were without merit; with respect to the compulsory process claim,
the court concluded that the testimony sought was “wholly peripheral to the defendant’s case.”26
These cases, while narrowing the argument, nevertheless leave open the possibility of raising
a constitutional challenge where a defendant has attempted to comply with the regulations, but has
his subpoena quashed because his attempt is in some way found deficient. There is also the
possibility that the courts would look with more favor on a constitutional argument where the
defendant’s rights are clearly prejudiced by the exclusion of the sought-after testimony.
C.

Touhy regulations violate reciprocal discovery.

The Ninth Circuit has addressed another argument against the application of Touhy
regulations in criminal cases. In United States v. Bahamonde,27 the Ninth Circuit, relying on
Wardius v. Oregon, 412 U.S. 470 (1973), held that the Department of Homeland Security regulations
“violate[] due process by failing to provide reciprocal discovery.”28 The court concluded that it was
unfair to require the defendant “to state with specificity the testimony he expected from [the agent]”
while “the government was not required at any time to produce the evidence it expected to offer in

24

Id.

25

Id.

26

Id.

27

445 F.3d 1225 (9th Cir. 2006).

28

Id. at 1229.
8

rebuttal, either from [the agent] or anyone else.”29 It does not appear that any other circuit has
addressed the argument that reciprocal discovery should limit the application of Touhy regulations
in criminal cases. Accordingly, this issue remains open in the Fifth Circuit.
Finally, remember that the Government must object to a federal-agency-witness subpoena
that does not comply with Touhy. Federal Rule of Criminal Procedure 17 controls the issuance of
subpoenas in federal criminal cases. Subsection (a) requires the clerk to issue subpoenas to any
requesting party, and subsection (b) requires the court to order that a subpoena be issued without
cost, on an ex parte application, if the witness is necessary to the defense and the defendant is unable
to pay the witness fees. Subsection authorizes the quashing or modification of a subpoena, but only
(1) on the motion of a party, (2) made promptly, (3) showing that compliance would be unreasonable
or oppressive. Make sure that the Government has met these requirements if it seeks to resist a
subpoena for a government agent.

29

Id.
9

APPENDIX A: DOJ Regulations

28 C.F.R. § 16.21
1. Code of Federal Regulations Currentness
Title 28. Judicial Administration
Chapter I. Department of Justice
Part 16. Production or Disclosure of Material or Information (Refs & Annos)
Subpart B. Production or Disclosure in Federal and State Proceedings (Refs & Annos)
§ 16.21 Purpose and scope.

(a) This subpart sets forth procedures to be followed with respect to the production or disclosure
of any material contained in the files of the Department, any information relating to material
contained in the files of the Department, or any information acquired by any person while such
person was an employee of the Department as a part of the performance of that person's official
duties or because of that person's official status:
(1) In all federal and state proceedings in which the United States is a party; and
(2) In all federal and state proceedings in which the United States is not a party, including any
proceedings in which the Department is representing a government employee solely in that
employee's individual capacity, when a subpoena, order, or other demand (hereinafter
collectively referred to as a “demand”) of a court or other authority is issued for such material or
information.
(b) For purposes of this subpart, the term employee of the Department includes all officers and
employees of the United States appointed by, or subject to the supervision, jurisdiction, or
control of the Attorney General of the United States, including U.S. Attorneys, U.S. Marshals,
U.S. Trustees and members of the staffs of those officials.

10

© Nothing in this subpart is intended to impede the appropriate disclosure, in the absence of a
demand, of information by Department law enforcement agencies to federal, state, local and
foreign law enforcement, prosecutive, or regulatory agencies.
(d) This subpart is intended only to provide guidance for the internal operations of the
Department of Justice, and is not intended to, and does not, and may not be relied upon to create
any right or benefit, substantive or procedural, enforceable at law by a party against the United States.
28 C.F.R. § 16.22
1. Code of Federal Regulations Currentness
Title 28. Judicial Administration
Chapter I. Department of Justice
Part 16. Production or Disclosure of Material or Information (Refs & Annos)
Subpart B. Production or Disclosure in Federal and State Proceedings (Refs & Annos)
§ 16.22 General prohibition of production or disclosure in Federal and State proceedings in
which the United States is not a party.

(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 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 official status without prior approval of the proper Department official in accordance
with §§ 16.24 and 16.25 of this part.
(b) Whenever a demand is made upon an employee or former employee as described in
paragraph (a) of this section, the employee shall immediately notify the U.S. Attorney for the
district where the issuing authority is located. The responsible United States Attorney shall
follow procedures set forth in § 16.24 of this part.
© If oral testimony is sought by a demand in any case or matter in which the United States is not
a party, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or by
11

his attorney, setting forth a summary of the testimony sought and its relevance to the proceeding,
must be furnished to the responsible U.S. Attorney. Any authorization for testimony by a present
or former employee of the Department shall be limited to the scope of the demand as
summarized in such statement.
(d) When information other than oral testimony is sought by a demand, the responsible U.S.
Attorney shall request a summary of the information sought and its relevance to the proceeding.
28 C.F.R. § 16.23
1. Code of Federal Regulations Currentness
Title 28. Judicial Administration
Chapter I. Department of Justice
Part 16. Production or Disclosure of Material or Information (Refs & Annos)
Subpart B. Production or Disclosure in Federal and State Proceedings (Refs & Annos)
§ 16.23 General disclosure authority in Federal and State proceedings in which the United
States is a party.

(a) Every attorney in the Department of Justice in charge of any case or matter in which the
United States is a party is authorized, after consultation with the “originating component” as
defined in § 16.24(a) of this part, to reveal and furnish to any person, including an actual or
prospective witness, a grand jury, counsel, or a court, either during or preparatory to a
proceeding, such testimony, and relevant unclassified material, documents, or information
secured by any attorney, or investigator of the Department of Justice, as such attorney shall deem
necessary or desirable to the discharge of the attorney's official duties: Provided, Such an
attorney shall consider, with respect to any disclosure, the factors set forth in § 16.26(a) of this
part: And further provided, An attorney shall not reveal or furnish any material, documents,
testimony or information when, in the attorney's judgment, any of the factors specified in §
16.26(b) exists, without the express prior approval by the Assistant Attorney General in charge of
the division responsible for the case or proceeding, the Director of the Executive Office for
United States Trustees (hereinafter referred to as “the EOUST”), or such persons' designees.
(b) An attorney may seek higher level review at any stage of a proceeding, including prior to the
issuance of a court order, when the attorney determines that a factor specified in § 16.26(b) exists
12

or foresees that higher level approval will be required before disclosure of the information or
testimony in question. Upon referral of a matter under this subsection, the responsible Assistant
Attorney General, the Director of EOUST, or their designees shall follow procedures set forth in
§ 16.24 of this part.
(c) If oral testimony is sought by a demand in a case or matter in which the United States is a
party, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or by
the party's attorney setting forth a summary of the testimony sought must be furnished to the
Department attorney handling the case or matter.
28 C.F.R. § 16.24
1. Code of Federal Regulations Currentness
Title 28. Judicial Administration
Chapter I. Department of Justice
Part 16. Production or Disclosure of Material or Information (Refs & Annos)
Subpart B. Production or Disclosure in Federal and State Proceedings (Refs & Annos)
§ 16.24 Procedure in the event of a demand where disclosure is not otherwise authorized.

(a) Whenever a matter is referred under § 16.22 of this part to a U.S. Attorney or, under § 16.23
of this part, to an Assistant Attorney General, the Director of the EOUST, or their designees
(hereinafter collectively referred to as the “responsible official”), the responsible official shall
immediately advise the official in charge of the bureau, division, office, or agency of the
Department that was responsible for the collection, assembly, or other preparation of the material
demanded or that, at the time the person whose testimony was demanded acquired the
information in question, employed such person (hereinafter collectively referred to as the
“originating component”), or that official's designee. In any instance in which the responsible
official is also the official in charge of the originating component, the responsible official may
perform all functions and make all determinations that this regulation vests in the originating
component.
(b) The responsible official, subject to the terms of paragraph (c) of this section, may authorize
the appearance and testimony of a present or former Department employee, or the production of
material from Department files if:

13

(1) There is no objection after inquiry of the originating component;
(2) The demanded disclosure, in the judgment of the responsible official, is appropriate under the
factors specified in § 16.26(a) of this part; and
(3) None of the factors specified in § 16.26(b) of this part exists with respect to the demanded
disclosure.
(c) It is Department policy that the responsible official shall, following any necessary
consultation with the originating component, authorize testimony by a present or former
employee of the Department or the production of material from Department files without further
authorization from Department officials whenever possible: Provided, That, when information is
collected, assembled, or prepared in connection with litigation or an investigation supervised by a
division of the Department or by the EOUST, the Assistant Attorney General in charge of such a
division or the Director of the EOUST may require that the originating component obtain the
division's or the EOUST's approval before authorizing a responsible official to disclose such
information. Prior to authorizing such testimony or production, however, the responsible official
shall, through negotiation and, if necessary, appropriate motions, seek to limit the demand to
information, the disclosure of which would not be inconsistent with the considerations specified
in § 16.26 of this part.
(d)(1) In a case in which the United States is not a party, if the responsible U.S. attorney and the
originating component disagree with respect to the appropriateness of demanded testimony or of
a particular disclosure, or if they agree that such testimony or such a disclosure should not be
made, they shall determine if the demand involves information that was collected, assembled, or
prepared in connection with litigation or an investigation supervised by a division of this
Department or the EOUST. If so, the U.S. attorney shall notify the Director of the EOUST or the
Assistant Attorney General in charge of the division responsible for such litigation or
investigation, who may:
(i) Authorize personally or through a Deputy Assistant Attorney General, the demanded
testimony or other disclosure of the information if such testimony or other disclosure, in the
Assistant or Deputy Assistant Attorney General's judgment or in the judgment of the Director of
the EOUST, is consistent with the factors specified in § 16.26(a) of this part, and none of the
factors specified in § 16.26(b) of this part exists with respect to the demanded disclosure;
(ii) Authorize, personally or by a designee, the responsible official, through negotiations and, if
necessary, appropriate motions, to seek to limit the demand to matters, the disclosure of which,
through testimony or documents, considerations specified in § 16.26 of this part, and otherwise
14

to take all appropriate steps to limit the scope or obtain the withdrawal of a demand; or
(iii) If, after all appropriate steps have been taken to limit the scope or obtain the withdrawal of a
demand, the Director of the EOUST or the Assistant or Deputy Assistant Attorney General does
not authorize the demanded testimony or other disclosure, refer the matter, personally or through
a Deputy Assistant Attorney General, for final resolution to the Deputy or Associate Attorney
General, as indicated in § 16.25 of this part.
(2) If the demand for testimony or other disclosure in such a case does not involve information
that was collected, assembled, or prepared in connection with litigation or an investigation
supervised by a division of this Department, the originating component shall decide whether
disclosure is appropriate, except that, when especially significant issues are raised, the
responsible official may refer the matter to the Deputy or Associate Attorney General, as
indicated in § 16.25 of this part. If the originating component determines that disclosure would
not be appropriate and the responsible official does not refer the matter for higher level review,
the responsible official shall take all appropriate steps to limit the scope or obtain the withdrawal
of a demand.
(e) In a case in which the United States is a party, the Assistant General or the Director of the
EOUST responsible for the case or matter, or such persons' designees, are authorized, after
consultation with the originating component, to exercise the authorities specified in paragraph
(d)(1)(i) through (iii) of this section: Provided, That if a demand involves information that was
collected, assembled, or prepared originally in connection with litigation or an investigation
supervised by another unit of the Department, the responsible official shall notify the other
division or the EOUST concerning the demand and the anticipated response. If two litigating
units of the Department are unable to resolve a disagreement concerning disclosure, the Assistant
Attorneys General in charge of the two divisions in disagreement, or the Director of the EOUST
and the appropriate Assistant Attorney General, may refer the matter to the Deputy or Associate
Attorney General, as indicated in § 16.25(b) of this part.
(f) In any case or matter in which the responsible official and the originating component agree
that it would not be appropriate to authorize testimony or otherwise to disclose the information
demanded, even if a court were so to require, no Department attorney responding to the demand
should make any representation that implies that the Department would, in fact, comply with the
demand if directed to do so by a court. After taking all appropriate steps in such cases to limit the
scope or obtain the withdrawal of a demand, the responsible official shall refer the matter to the
Deputy or Associate Attorney General, as indicated in § 16.25 of this part.
(g) In any case or matter in which the Attorney General is personally involved in the claim of
privilege, the responsible official may consult with the Attorney General and proceed in accord
15

with the Attorney General's instructions without subsequent review by the Deputy or Associate
Attorney General.
28 C.F.R. § 16.25
1. Code of Federal Regulations Currentness
Title 28. Judicial Administration
Chapter I. Department of Justice
Part 16. Production or Disclosure of Material or Information (Refs & Annos)
Subpart B. Production or Disclosure in Federal and State Proceedings (Refs & Annos)
§ 16.25 Final action by the Deputy or Associate Attorney General.

(a) Unless otherwise indicated, all matters to be referred under § 16.24 by an Assistant Attorney
General, the Director of the EOUST, or such person's designees to the Deputy or Associate
Attorney General shall be referred (1) to the Deputy Attorney General, if the matter is referred
personally by or through the designee of an Assistant Attorney General who is within the general
supervision of the Deputy Attorney General, or (2) to the Associate Attorney General, in all other
cases.
(b) All other matters to be referred under § 16.24 to the Deputy or Associate Attorney General
shall be referred (1) to the Deputy Attorney General, if the originating component is within the
supervision of the Deputy Attorney General or is an independent agency that, for administrative
purposes, is within the Department of Justice, or (2) to the Associate Attorney General, if the
originating component is within the supervision of the Associate Attorney General.
(c) Upon referral, the Deputy or Associate Attorney General shall make the final decision and
give notice thereof to the responsible official and such other persons as circumstances may warrant.
28 C.F.R. § 16.26
1. Code of Federal Regulations Currentness
Title 28. Judicial Administration
16

Chapter I. Department of Justice
Part 16. Production or Disclosure of Material or Information (Refs & Annos)
Subpart B. Production or Disclosure in Federal and State Proceedings (Refs & Annos)
§ 16.26 Considerations in determining whether production or disclosure should be made
pursuant to a demand.

(a) In deciding whether to make disclosures pursuant to a demand, Department officials and
attorneys should consider:
(1) Whether such disclosure is appropriate under the rules of procedure governing the case or
matter in which the demand arose, and
(2) Whether disclosure is appropriate under the relevant substantive law concerning privilege.
(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 procedure, such as the grand jury secrecy rule, F.R.Cr.P., Rule 6(e),
(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 compiled for law enforcement purposes, and
would interfere with enforcement proceedings or disclose investigative techniques and
procedures the effectiveness of which would thereby be impaired,

17

(6) Disclosure would improperly reveal trade secrets without the owner's consent.
(c) In all cases not involving considerations specified in paragraphs (b)(1) through (b)(6) of this
section, the Deputy or Associate Attorney General will authorize disclosure unless, in that
person's judgment, after considering paragraph (a) of this section, disclosure is unwarranted. The
Deputy or Associate Attorney General will not approve disclosure if the circumstances specified
in paragraphs (b)(1) through (b)(3) of this section exist. The Deputy or Associate Attorney
General will not approve disclosure if any of the conditions in paragraphs (b)(4) through (b)(6) of
this section exist, unless the Deputy or Associate Attorney General determines that the
administration of justice requires disclosure. In this regard, if disclosure is necessary to pursue a
civil or criminal prosecution or affirmative relief, such as an injunction, consideration shall be
given to:
(1) The seriousness of the violation or crime involved,
(2) The past history or criminal record of the violator or accused,
(3) The importance of the relief sought,
(4) The importance of the legal issues presented,
(5) Other matters brought to the attention of the Deputy or Associate Attorney General.
(d) Assistant Attorneys General, U.S. Attorneys, the Director of the EOUST, U.S. Trustees, and
their designees, are authorized to issue instructions to attorneys and to adopt supervisory
practices, consistent with this subpart, in order to help foster consistent application of the
foregoing standards and the requirements of this subpart.

18

APPENDIX B: DHS Regulations
6 C.F.R. § 5.41
1. Code of Federal Regulations Currentness
Title 6. Domestic Security (Refs & Annos)
Chapter I. Department of Homeland Security, Office of the Secretary (Refs & Annos)
Part 5. Disclosure of Records and Information (Refs & Annos)
Subpart C. Disclosure of Information in Litigation (Refs & Annos)
§ 5.41 Purpose and scope; definitions.

(a) This subpart C sets forth the procedures to be followed with respect to:
(1) Service of summonses and complaints or other requests or demands directed to the
Department of Homeland Security (Department) or to any Department employee or former
employee in connection with federal or state litigation arising out of or involving the
performance of official activities of the Department; and
(2) The oral or written disclosure, in response to subpoenas, orders, or other requests or demands
of federal or state judicial or quasi-judicial or administrative authority as well as state legislative
authorities (collectively, “demands”), whether civil or criminal in nature, or in response to
requests for depositions, affidavits, admissions, responses to interrogatories, document
production, interviews, or other litigation-related matters, including pursuant to the Federal Rules
of Civil Procedure, the Federal Rules of Criminal Procedure, or applicable state rules
(collectively, “requests”), of any material contained in the files of the Department, any
information relating to material contained in the files of the Department, or any information
acquired while the subject of the demand or request is or was employed by the Department, or
served as Secretary of the Department, as part of the performance of that person's duties or by
virtue of that person's official status.
(b) The provisions established by this subpart shall apply to all Department components that are
transferred to the Department. Except to the extent a Department component has adopted
separate guidance governing the subject matter of a provision of this subpart, the provisions of
this subpart shall apply to each component of the Department. Departmental components may
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issue their own guidance under this subpart subject to the approval of the General Counsel of the
Department.
(c) For purposes of this subpart, and except as the Department may otherwise determine in a
particular case, the term employee includes all former Secretaries of Homeland Security and all
employees of the Department of Homeland Security or other federal agencies who are or were
appointed by, or subject to the supervision, jurisdiction, or control of the Secretary of Homeland
Security, whether residing or working in the United States or abroad, including United States
nationals, foreign nationals, and contractors. The procedures established within this subpart also
apply to former employees of the Department where specifically noted.
(d) For purposes of this subpart, the term litigation encompasses all pre-trial, trial, and post-trial
stages of all judicial or administrative actions, hearings, investigations, or similar proceedings
before courts, commissions, boards (including the Board of Appellate Review), grand juries, or
other judicial or quasi-judicial bodies or tribunals, whether criminal, civil, or administrative in
nature. This subpart governs, inter alia, responses to discovery requests, depositions, and other
pre-trial, trial, or post-trial proceedings, as well as responses to informal requests by attorneys or
others in situations involving litigation. However, this subpart shall not apply to any claims
against the Department by Department of Homeland Security employees (present or former), or
applicants for Department employment, for which jurisdiction resides with the U.S. Equal
Employment Opportunity Commission; the U.S. Merit Systems Protection Board; the Office of
Special Counsel; the Federal Labor Relations Authority; the Foreign Service Labor Relations
Board; the Foreign Service Grievance Board; or a labor arbitrator operating under a collective
bargaining agreement between the Department and a labor organization representing Department
employees; or their successor agencies or entities.
(e) For purposes of this subpart, official information means all information of any kind, however
stored, that is in the custody and control of the Department, relates to information in the custody
and control of the Department, or was acquired by Department employees, or former employees,
as part of their official duties or because of their official status within the Department while such
individuals were employed by or served on behalf of the Department.
(f) Nothing in this subpart affects disclosure of information under the Freedom of Information
Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5 U.S.C. 552a, Executive Order 12958 on national
security information (3 CFR, 1995 Comp., p. 333), the Government in the Sunshine Act, 5
U.S.C. 552b, the Department's implementing regulations or pursuant to congressional subpoena.
Nothing in this subpart permits disclosure of information by the Department, its present and
former employees, or the Secretary, that is protected or prohibited by statute or other applicable law.
(g) This subpart is intended only to inform the public about Department procedures concerning
the service of process and responses to demands or requests and is not intended to and does not
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create, and may not be relied upon to create any right or benefit, substantive or procedural,
enforceable at law by a party against the Department or the United States.
(h) Nothing in this subpart affects the rules and procedures, under applicable U.S. law and
international conventions, governing diplomatic and consular immunity.
(i) Nothing in this subpart affects the disclosure of official information to other federal agencies
or Department of Justice attorneys in connection with litigation conducted on behalf or in
defense of the United States, its agencies, officers, and employees, or litigation in which the
United States has an interest; or to federal, state, local, or foreign prosecuting and law
enforcement authorities in conjunction with criminal law enforcement investigations,
prosecutions, or other proceedings, e.g., extradition, deportation.
6 C.F.R. § 5.42
1. Code of Federal Regulations Currentness
Title 6. Domestic Security (Refs & Annos)
Chapter I. Department of Homeland Security, Office of the Secretary (Refs & Annos)
Part 5. Disclosure of Records and Information (Refs & Annos)
Subpart C. Disclosure of Information in Litigation (Refs & Annos)
§ 5.42 Service of summonses and complaints.

(a) Only the Office of the General Counsel is authorized to receive and accept on behalf of the
Department summonses or complaints sought to be served upon the Department, the Secretary,
or Department employees. All such documents should be delivered or addressed to the Office of
the General Counsel, United States Department of Homeland Security, Washington, DC, 20258.
The authorization for receipt shall in no way affect the requirements of service elsewhere
provided in applicable rules and regulations.
(b) In the event any summons or complaint described in § 5.41(a) is delivered to an employee of
the Department other than in the manner specified in this part, the recipient thereof shall decline
to accept the proffered service and may notify the person attempting to make service of the
Departmental regulations set forth herein.
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(c) Except as otherwise provided §§ 5.42(d) and 5.43(c), the Department is not an authorized
agent for service of process with respect to civil litigation against Department employees purely
in their personal, non-official capacity. Copies of summonses or complaints directed to
Department employees in connection with legal proceedings arising out of the performance of
official duties may, however, be served upon the Office of the General Counsel.
(d) Although the Department is not an agent for the service of process upon its employees with
respect to purely personal, non-official litigation, the Department recognizes that its employees
should not use their official positions to evade their personal obligations and will, therefore,
counsel and encourage Department employees to accept service of process in appropriate cases.
(e) Documents for which the Office of the General Counsel accepts service in official capacity
only shall be stamped “Service Accepted in Official Capacity Only”. Acceptance of service shall
not constitute an admission or waiver with respect to jurisdiction, propriety of service, improper
venue, or any other defense in law or equity available under applicable laws or rules.
6 C.F.R. § 5.43
1. Code of Federal Regulations Currentness
Title 6. Domestic Security (Refs & Annos)
Chapter I. Department of Homeland Security, Office of the Secretary (Refs & Annos)
Part 5. Disclosure of Records and Information (Refs & Annos)
Subpart C. Disclosure of Information in Litigation (Refs & Annos)
§ 5.43 Service of subpoenas, court orders, and other demands or requests for official
information or action.

(a) Except in cases in which the Department is represented by legal counsel who have entered an
appearance or otherwise given notice of their representation, only the Office of the General
Counsel is authorized to receive and accept subpoenas, or other demands or requests directed to
the Secretary, the Department, or any component thereof, or its employees, whether civil or
criminal in nature, for:

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(1) Material, including documents, contained in the files of the Department;
(2) Information, including testimony, affidavits, declarations, admissions, responses to
interrogatories, or informal statements, relating to material contained in the files of the
Department or which any Department employee acquired in the course and scope of the
performance of his official duties;
(3) Garnishment or attachment of compensation of current or former employees; or
(4) The performance or non-performance of any official Department duty.
(b) In the event that any subpoena, demand, or request is sought to be delivered to a Department
employee other than in the manner prescribed in paragraph (a) of this section, such employee
shall, after consultation with the Office of the General Counsel, decline service and direct the
server of process to the Departmental regulations. If the subpoena, demand, or other request is
nonetheless delivered to the employee, the employee shall immediately forward a copy of that
document to the Office of the General Counsel.
(c) Except as otherwise provided in this subpart, the Department is not an agent for service, or
otherwise authorized to accept on behalf of its employees, any subpoenas, show-cause orders, or
similar compulsory process of federal or state courts, or requests from private individuals or
attorneys, which are not related to the employees' official duties except upon the express, written
authorization of the individual Department employee to whom such demand or request is directed.
(d) Acceptance of such documents by the Office of the General Counsel does not constitute a
waiver of any defenses that might otherwise exist with respect to service under the Federal Rules
of Civil or Criminal Procedure or other applicable rules.
(e) Copies of any subpoenas, show cause orders, or similar compulsory process of federal or state
courts, or requests from private individuals or attorneys, directed to former employees of the
Department in connection with legal proceedings arising out of the performance of official duties
shall also be served upon the Office of the General Counsel. The Department shall not, however,
serve as an agent for service for the former employee, nor is the Department otherwise authorized
to accept service on behalf of its former employees. If the demand involves their official duties,
former employees who receive subpoenas, show cause orders, or similar compulsory process of
federal or state courts should also notify in the component of the Department in which they were
employed if the service involves their official duties while so employed.

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(f) If the subpoena, demand, or other request is nonetheless delivered to the employee, the
employee shall immediately forward a copy of that document to the Office of the General Counsel.
6 C.F.R. § 5.44
1. Code of Federal Regulations Currentness
Title 6. Domestic Security (Refs & Annos)
Chapter I. Department of Homeland Security, Office of the Secretary (Refs & Annos)
Part 5. Disclosure of Records and Information (Refs & Annos)
Subpart C. Disclosure of Information in Litigation (Refs & Annos)
§ 5.44 Testimony and production of documents prohibited unless approved by appropriate
Department officials.

(a) No employee, or former employee, of the Department shall, in response to a demand or
request, including in connection with any litigation, provide oral or written testimony by
deposition, declaration, affidavit, or otherwise concerning any information acquired while such
person is or was an employee of the Department as part of the performance of that person's
official duties or by virtue of that person's official status, unless authorized to do so by the Office
of the General Counsel, or as authorized in § 5.44(b).
(b) No employee, or former employee, shall, in response to a demand or request, including in
connection with any litigation, produce any document or any material acquired as part of the
performance of that employee's duties or by virtue of that employee's official status, unless
authorized to do so by the Office of the General Counsel or the delegates thereof, as appropriate.
6 C.F.R. § 5.45
1. Code of Federal Regulations Currentness
Title 6. Domestic Security (Refs & Annos)
Chapter I. Department of Homeland Security, Office of the Secretary (Refs & Annos)
Part 5. Disclosure of Records and Information (Refs & Annos)
24

Subpart C. Disclosure of Information in Litigation (Refs & Annos)
§ 5.45 Procedure when testimony or production of documents is sought; general.

<For statute(s) affecting validity, see: 5 USCA § 301; 6 USCA § 101 et seq.>
(a) If official information is sought, through testimony or otherwise, by a request or demand, the
party seeking such release or testimony must (except as otherwise required by federal law or
authorized by the Office of the General Counsel) set forth in writing, and with as much
specificity as possible, the nature and relevance of the official information sought. Where
documents or other materials are sought, the party should provide a description using the types of
identifying information suggested in § 5.3(b). Subject to § 5.47, Department employees may only
produce, disclose, release, comment upon, or testify concerning those matters which were
specified in writing and properly approved by the appropriate Department official designated in §
5.44. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). The Office of the General
Counsel may waive the requirement of this subsection in appropriate circumstances.
(b) To the extent it deems necessary or appropriate, the Department may also require from the
party seeking such testimony or documents a plan of all reasonably foreseeable demands,
including but not limited to the names of all employees and former employees from whom
discovery will be sought, areas of inquiry, expected duration of proceedings requiring oral
testimony, and identification of potentially relevant documents.
(c) The appropriate Department official designated in § 5.42 will notify the Department
employee and such other persons as circumstances may warrant of its decision regarding
compliance with the request or demand.
(d) The Office of the General Counsel will consult with the Department of Justice regarding legal
representation for Department employees in appropriate cases.

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