(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 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.
Notes of Decisions
Cited in
26
cases (
4 in the last 5 years), 1977–2026 · leading case:
United States v. Wallace, 32 F.3d 921 (5th Cir. 1994).
United States v. Wallace, 32 F.3d 921 (5th Cir. 1994).
· cites it 2× “Because the defendants failed to make a timely demand in accordance with the required procedure set out in 28 C.F.R. § 16.23 (c), we do not reach their constitutional claims.”
United States v. Bertoli, 854 F. Supp. 975 (D.N.J. 1994).
· cites it 2× “Pursuant to 28 C.F.R. § 16.23 (c), which governs the procedures to be followed in subpoenaing agents of the FBI, Bertoli was required to provide the Government with “an affidavit, or, if that is not feasible, a statement .”
United States v. Vazquez-Rosario, 45 F.4th 565 (1st Cir. 2022).
· cites it 2× “Specifically, Vázquez argues that his Touhy request was sufficient under the requirements of 28 C.F.R. § 16.23 (c), which only requires a "summary of the testimony sought" be provided to the Department of Justice.”
United States v. Thomas Allen, 554 F.2d 398 (10th Cir. 1977).
“As a procedural predicate for such approval, 28 C.F.R. § 16.23 (c) (1974) provided: If oral testimony is sought by the demand, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or his attorney, setting forth a summary of the testimony…”
United States v. Feeney, 501 F. Supp. 1337 (D. Colo. 1980).
· cites it 3× “” The full Justice Department order is set forth in a footnote of the opinion, and it directed the witness to do just about what today’s 28 C.F.R. § 16.23 , et seq. tells Justice Department employees to do.”
Rory Walsh v. Brian George, 650 F. App'x 130 (3rd Cir. 2016).
“112 ; 28 C.F.R. § 16.23 (a). The District Court did not abuse its discretion in denying Walsh leave to amend.”
United States v. Springer, 444 F. App'x 256 (10th Cir. 2011).
“Nor do defendants indicate whether they submitted to the Department of Justice a summary of the evidence they sought to obtain, as required by 28 C.F.R. § 16.23 (c). And, as the government points out, the IRS maintains similar regulations for its employees, see 26 C.”
SOCIALIST WKRS. PARTY v. Attorney Gen. of US, 458 F. Supp. 895 (S.D.N.Y. 1978).
“The Attorney General asserts that this assumption of responsibility is required by 28 C.F.R. §§ 16.23 and 16.24(b). In an affidavit dated June 13, 1978, confirmed by subsequent submissions made to the Court by the United States Attorney for the Southern District of New York, the…”
United States v. Winner, 641 F.2d 825 (10th Cir. 1981).
“See 28 C.F.R. § 16.23 (c) (1980). The affidavit is reproduced as Appendix A.”
United States v. Jimenez-Montoya, 348 F. App'x 73 (5th Cir. 2009).
· cites it 2× “When the defendant sought to call Agent Carter as a possible witness in his case, the government objected, saying that Agent Carter was precluded from testifying because the defense did not comply with the Touhy regulations in 28 C.F.R. § 16.23 (c). 1 The defense argued that a…”
— 28 C.F.R. § 16.23(c) — 1 case
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