Attorney General’s Guidelines on Confidential Informants

The Attorney General’s Guidelines on Confidential Informants are the Department of Justice’s binding rules for how federal law enforcement agencies recruit, vet, pay, supervise, and terminate people who secretly provide information in criminal investigations. They exist in two forms: a general set that applies to all DOJ law enforcement agencies, and a more detailed FBI-specific version governing Confidential Human Sources, most recently updated in 2020.¹ Together they set the ground rules that touch every informant relationship in the federal system, from the agent doing the recruiting to the defendant whose trial may turn on a cooperating witness.

Which Agencies Have to Follow Them

Every law enforcement component of the Department of Justice must comply. That includes the FBI, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the U.S. Marshals Service. Each agency head certifies that internal procedures align with the guidelines, and the Assistant Attorney General for the Criminal Division resolves disputes over interpretation and can grant exceptions in extraordinary cases.¹

Homeland Security agencies sit outside DOJ. A 2015 Government Accountability Office report found that DHS components, including Customs and Border Protection, Immigration and Customs Enforcement, the Coast Guard, and the Secret Service, lacked department-level guidance requiring compliance with the Attorney General’s Guidelines.² In 2016, DHS issued a policy memo directing its law enforcement components to align their informant procedures with the guidelines.³

Vetting Before an Informant Can Be Used

No one can be used as a federal informant until the handling agent completes what the FBI calls an “Initial Validation.” That’s a documented background investigation covering true identity, aliases, employment, and full criminal history. The agent must also determine whether the candidate is a subject or target of any FBI investigation, has pending charges, or has ever worked as a source for another government agency.¹

The file must document motivation. Is the person cooperating for money, to reduce their own criminal exposure, or for some other reason? That context tells supervisors how much weight to give the information and how closely the relationship needs to be watched. Field supervisors review the assessment and decide whether the candidate clears the bar. Approved informants receive a unique identifying code so their name doesn’t appear in routine records.

One gap worth flagging: the federal guidelines don’t contain dedicated protections for informants under 18. Several states have age minimums, parental consent rules, and judicial oversight for juvenile informants. There is no equivalent federal floor. Individual agencies may adopt their own internal policies, but the guidelines themselves are silent.

Authorizing Otherwise Illegal Activity

Some investigations require informants to do things that would be crimes without government sanction. The guidelines carve this up into two tiers.

Tier 1

Tier 1 covers the highest-risk conduct: activity that would be a crime and also involves a significant risk of violence, corruption by senior public officials, trafficking in large quantities of controlled substances, substantial financial losses, or the informant providing someone with tools or materials essential to a crime that the target couldn’t easily obtain otherwise.⁴ Tier 1 requires written advance approval from both an FBI Special Agent in Charge and the Chief Federal Prosecutor in the district, typically the U.S. Attorney.⁵

Tier 2

Tier 2 is the catch-all: any other activity that would be a misdemeanor or felony without authorization but doesn’t hit the Tier 1 aggravating factors.⁴ Tier 2 can be authorized by a senior field manager such as an Assistant Special Agent in Charge, without U.S. Attorney sign-off.⁵

Time Limits, Emergencies, and Hard Prohibitions

Authorization at either tier lasts a maximum of 90 days and must be granted in advance and in writing. National security investigations are an exception: Tier 1 authorization there can run up to one year at the Chief Federal Prosecutor’s discretion.¹ When authorization expires, the full approval process starts over.

In emergencies, a Special Agent in Charge or Chief Federal Prosecutor may grant oral authorization for either tier, with written documentation and a justification for skipping the normal process required within 72 hours.⁶

Some conduct is never authorized. Informants are prohibited from committing perjury, tampering with or intimidating witnesses, fabricating or destroying evidence, or engaging in entrapment.⁴ Authorization also does not confer general immunity. Legal protection covers only the specific pre-approved actions conducted under federal supervision; step outside those boundaries and the informant is exposed to arrest like anyone else.

Heightened Review for Sensitive Sources

Certain informants trigger an additional layer of review. These “sensitive” categories include people covered by a legal privilege of confidentiality, individuals affiliated with the media, and high-level government or union sources such as chief executives or federal or state legislators.¹ The FBI must seek written approval to continue using any source in these categories within 60 days of beginning to use them.

Review runs through a Human Source Review Committee: two supervisory FBI agents, one FBI Office of General Counsel attorney, and four experienced federal prosecutors designated by the Assistant Attorney General for the Criminal Division.¹ The committee must reach consensus to approve continued use of the source and complete its review within 45 days of the FBI’s request. Disagreements go up to the Assistant Attorney General for resolution. The source’s actual identity is withheld from the committee unless the chair determines compelling reasons exist to reveal it.

Payment Thresholds

Payments to informants are approved on a rising scale:

Up to $2,500 per case is handled at the field level without special approval.
$2,500 to $25,000 per case requires authorization from a senior field manager.
Over $25,000 per case requires senior field manager authorization plus express approval from a designated senior headquarters official.
Over $100,000 in aggregate within one year requires headquarters-level approval, with additional amounts authorized in increments of $50,000 or less.
Over $200,000 in aggregate total requires headquarters approval, with additional amounts authorized in increments of $100,000 or less.

These thresholds come from the 2002 guidelines and exist to keep field agents from paying large sums without documentation or headquarters visibility.⁴

Informant payments are taxable income. Federal agencies don’t treat them as wages, but they are still reportable, and every January the agency must advise each informant of the total taxable payments made during the previous year. During annual suitability reviews, agents check whether the informant reported the income. If they didn’t, the agency can terminate the relationship and disclose the reason to other agencies involved, including the U.S. Attorney’s Office.⁷

When a Defendant Can Learn Who the Informant Is

The government generally has a right to keep informant identities secret. The Supreme Court recognized this “informer’s privilege” in Roviaro v. United States, describing it as the government’s privilege to withhold the identity of people who provide information about law violations to enforcement officers. The privilege is not absolute.⁸

When an informant’s identity or testimony is relevant and helpful to a defendant’s case, or essential to a fair outcome, the privilege must yield. Courts weigh this case by case, looking at the crime charged, possible defenses, and how significant the informant’s testimony might be. If the informant was a participant in the alleged offense rather than a mere tipster, disclosure becomes much more likely.⁸

Brady, Giglio, and What Prosecutors Must Turn Over

Federal prosecutors carry their own disclosure obligations. Under the Justice Manual, prosecutors must review the agency file for every testifying informant, including cooperation agreements, payment records, validation assessments, and any other potential impeachment material.⁹ Benefits given to the informant that must be disclosed include:

Dropped or reduced charges, immunity, and non-prosecution agreements.
Expected downward departures or motions for reduced sentences.
Stays of deportation, immigration status considerations, and S-Visas.
Monetary payments, asset forfeiture considerations, and relocation assistance.
Benefits given to the informant’s family members or associates as inducements to cooperate.

Impeachment information must also be disclosed: prior inconsistent statements, evidence of bias or animosity toward the defendant, prior convictions, and known substance abuse or mental health issues affecting perception and recall.⁹ Department policy goes beyond the constitutional floor set by Brady and Giglio, telling prosecutors to err toward disclosure when materiality is a close call. Exculpatory information must be turned over reasonably promptly after discovery; impeachment information must go to the defense a reasonable time before trial.

When disclosure would jeopardize the informant’s safety or seriously compromise an ongoing investigation, the matter is referred to the Human Source Review Committee rather than simply withheld.¹

Deactivation and Termination

Ending an informant relationship follows a set procedure. Once the decision is made, the agency must immediately deactivate the source, document the reasons in the file, notify the informant of the deactivation, and revoke any existing authorization for otherwise illegal activity.⁴ Notification must be documented in enough detail to confirm when and how the informant was told. That record protects the agency from later claims that the person was still acting under government authority.

When a source is deactivated “for cause,” the restrictions tighten. Agents cannot initiate contact with, or respond to contact from, a former informant deactivated for cause unless exceptional circumstances exist and a senior field manager approves the contact in advance whenever possible.⁴ There is no mandatory waiting period before re-contact, but the “exceptional circumstances” standard is intentionally high, and any approved contact must be documented.

If the informant was tied to an active prosecution, the assigned attorney must be consulted before deactivation is finalized.

Where Compliance Has Broken Down

On paper the guidelines are comprehensive. In practice, federal agencies have repeatedly fallen short.

Inspector General testimony to Congress identified serious problems at ATF, where information critical to managing informants was scattered across hard-copy files, investigative files, and an electronic database that officials described as “unsophisticated and unreliable.” ATF could not efficiently track total payments made to individual informants without manually reviewing paper documents across separate filing systems. The agency also failed to consistently track higher-risk informants, including foreign nationals and Federal Firearms Licensees, leaving potential conflicts of interest unmonitored.¹⁰

Audits of the DEA found that its confidential source policies were not in full compliance with the Attorney General’s Guidelines and lacked sufficient oversight, particularly for “Limited Use” and intelligence-related sources. The agency failed to fully account for national security, foreign relations, and civil liberties risks associated with using and paying certain informants.¹⁰

Long-term informant relationships are supposed to trigger periodic review committee evaluations. Inspector General reviews found those committees did not always meet as scheduled, failed to review all files provided, and frequently postponed decisions.¹⁰ Violations identified through inspections are referred to headquarters management or the agency’s Office of Professional Responsibility, and agents who fail to comply with informant policies face discipline that can include termination of employment.²

1
Department of Justice. Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources
2
U.S. Government Accountability Office. Confidential Informants – Updates to Policy and Additional Guidance Would Improve Oversight by DOJ and DHS Agencies
3
U.S. Government Accountability Office. Confidential Informants – Updates to Policy and Additional Guidance Would Improve Oversight by DOJ and DHS Agencies
4
Council of the Inspectors General on Integrity and Efficiency. The Attorney General’s Guidelines Regarding the Use of Confidential Informants
5
Office of the Inspector General. The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines – Chapter Three
6
Office of the Inspector General. The Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources
7
Internal Revenue Service. 9.4.2 Sources of Information
8
Library of Congress (U.S. Reports). Roviaro v. United States
9
United States Department of Justice. Justice Manual 9-5.000 – Issues Related to Discovery, Trials, and Other Proceedings
10
U.S. House of Representatives Committee on Oversight and Government Reform. Statement of Michael E. Horowitz, Inspector General, Concerning Use of Confidential Informants at ATF and DEA