Congressional Record: October 3, 2003 (Senate)
Page S12449-S12470
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LIEBERMAN (for himself and Mr. Levin):
S. 1712. A bill to re-establish and reform the independent counsel
statute; to the Committee on Governmental Affairs.
Mr. LIEBERMAN. Mr. President, I am very pleased to be joining today
with Senator Levin in introducing the Independent Counsel Reform Act of
2003. With this bill, we hope to convince our colleagues that an
improved independent counsel statute can serve an essential purpose. We
want to convince our colleagues that our legislation will preserve the
ideals that motivated the enactment of this statute in the years after
Watergate, that no person is above the law, and that our highest
government officials must be subject to our laws in the same way as any
other person. If they are guilty, they must be held accountable. If
they are not, they must be cleared. In these cases the American people
are more likely to trust the findings of an independent counsel's
investigation and conclusions. Officials who are wrongly accused will
receive vindication that is far more credible to the public than when
it comes from the Department of Justice. As a result, the public's
confidence in its government is enhanced by the independent counsel
statute.
In 1999, as the independent counsel law was expiring, I joined with
Senators Levin, Specter, and Collins in introducing the Independent
Counsel Reform Act of 1999. That year, we drafted new provisions to
curb the excesses we had seen in some of the investigations conducted
under the prior incarnation of the law. The revisions ensure that there
will be fewer Independent Counsel appointed, and that their actions
will in many respects be constrained by the same sorts of guidelines
and practical restraints that govern regular federal prosecutors. The
bill we are introducing today retains these suggested reforms. In fact,
it is virtually identical to the Independent Counsel Reform Act of
1999, with a single exception I will describe in a moment.
We made those substantial changes after the Committee on Governmental
Affairs had held five hearings on the Independent Counsel statute.
During the hearings we heard from numerous witnesses who had served as
Independent Counsel, and as Attorney General, from former prosecutors
and from defense attorneys. Many witnesses supported the statute, even
defense attorneys who had represented targets in Independent Counsel
investigations. Both witnesses who opposed the statute outright, and
those who advocated keeping it in some form, suggested a number of
improvements to the statute. We carefully considered those
recommendations before we sat down to draft a bill that retained the
essential features of the old law while reducing its scope, limiting
the powers of the Independent Counsel, and bringing greater
transparency into the process.
For example, the threshold for seeking the appointment of an
Independent Counsel will be raised, so that a greater amount of
evidence to back up allegations of criminal conduct will be required.
The attorney General will also be entitled for the first time to issue
subpoenas for evidence and convene grand juries during the preliminary
investigation, and would be given more time to conduct preliminary
investigations. This change responds to concerns that, in the past, the
Attorney General's hands have been tied during the preliminary
investigation stage. With our bill, the Department of Justice will be
able to conduct a more substantial preliminary investigation.
In another change that will reduce the number of Independent Counsel
appointed, officials covered by the statute will be limited to the
President, the Vice President, the President's Chief of Staff, and
Cabinet members. This is a major reduction compared to the number of
officials covered by the Independent Counsel statute when it expired.
The Attorney General will retain the discretionary authority to appoint
an Independent Counsel to investigate non-covered individuals when the
Attorney General determines that investigation or prosecution by the
Department of Justice would result in a personal, financial or
political conflict of interest. This discretionary authority was part
of the Independent Counsel law from 1983 to 1999; although the
provision was not included in the bill we introduced that year, it has
been included in this bill because of the promulgation, after our bill
was introduced, of new regulations by the Department of Justice.
In many administrations, high level political advisers can have
enormous influence, much more even than some Cabinet members. When we
first introduced the Independent Counsel Reform Act of 1999, I hoped
that criminal allegations against officials not covered by the statute
could be handled either by the Department of Justice, or, in cases
involving high-level officials or other conflicts of interest, through
the appointment by the Attorney General of a Special Counsel. After our
bill was introduced, however, then Attorney General Reno issued revised
regulations for the appointment of Special Counsel, which provide that
the Attorney General may block any investigative or prosecutorial
action being pursued by the Special Counsel. The regulations also allow
the Attorney General to shut down the investigation entirely, or starve
it of funds. These revisions, and others, constituted a major reduction
in a Special Counsel's autonomy. As Robert Fiske had testified during
our committee hearings in 1999, he accepted his 1994 appointment to be
the Whitewater Special Counsel only after satisfying himself that the
regulations then in effect granted him the same powers as would have
been available to an Independent Counsel. Now, with the variety of
control mechanisms in place under the Department's 1999 regulations, it
is far too easy for an Attorney General to stifle an investigation in
ways less dramatic and less public than actually removing the Special
Counsel.
Under the legislation we are introducing today, each Independent
Counsel will have to devote his full time to the position for the
duration of his tenure. This will prevent the appearance of conflicts
that may arise when an Independent Counsel continues with his private
legal practice, and it will expedite investigations as well. The
Independent Counsel will also be expected to conform his conduct to the
written guidelines and established policies of the Department of
Justice. The prior version of that requirement contained a loophole,
which has been eliminated.
There have been many complaints about runaway prosecutors, who
continued their investigations longer than was necessary or
appropriate. Our bill will impose a time limit of two years on
investigations by Independent Counsel. The Special Division of the
Court of Appeals will be able to grant extensions of time, however, for
good cause and to compensate for dilatory tactics by opposing counsel.
Imposing a time limit with flexibility allows Independent Counsel the
time they genuinely need to complete their investigations, and deters
defense counsel from using the time limit strategically to escape
justice. But the time limit will also encourage future Independent
Counsel to bring their investigations to an expeditious conclusion, and
not chase down every imaginable lead.
Our bill makes another important change that will prevent expansion
of investigations into unrelated areas. Until now the statute has
allowed the Attorney General to request an expansion of an Independent
Counsel's prosecutorial jurisdiction into unrelated areas. This
happened several times with Judge Starr's investigation, and I believe
those expansions contributed to a perception that the prosecutor was
pursuing the person and not the crime. An Independent Counsel must not
exist to pursue every possible lead against his target until he finds
some taint of criminality. His function, our bill makes clear, is to
investigate that subject matter given him in his original grant of
prosecutorial jurisdiction.
We are bringing greater budgetary transparency to the process by
directing the Independent Counsel to produce an estimated budget for
each year, and by allowing the General Accounting Office to comment on
that budget. This greater transparency will provide more incentive for
Counsel to budget responsibly.
Another correction we are making is to eliminate entirely the
requirement that an Independent Counsel refer evidence of impeachable
offenses to the House of Representatives. The impeachment power is one
of Congress's essential Constitutional functions, and
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no part of that role should be delegated by statute to a prosecutor.
Our bill was unsuccessful in the 106th Congress. Perhaps one of the
reasons was that we were still too close to one or two controversial
investigations that turned some against the statute; perhaps the wounds
were still too raw. Now with a fresh perspective gained through the
passage of time, Congress should reconsider what it has given up by
allowing the Independent Counsel law to lapse for the past four years.
Hopefully, occasions will be few and far between when serious and
credible criminal allegations emerge against high-level officials. When
this happens, however, the public will question how we can be certain
that the incident is being appropriately investigated. Indeed, in the
absence of an Independent Counsel law, some may even question whether
allegations are as likely to surface in the first place. If people with
knowledge of criminal wrongdoing suspect that their information may be
covered up rather than acted upon, they would be less likely to take
the risk of coming forward.
The controversy that has enveloped the White House in the past week
illustrates the need for an Independent Counsel law. According to news
reports, two high-level Administration figures, which some reports have
placed in the White House, willfully disclosed the name of a covert CIA
operative. If true, this disclosure would be a serious criminal law
violation, one that may well have endangered not just the covert
operative, but the people abroad who worked with her in service to the
United States. The disclosures were reportedly made to punish the
agent's husband, Ambassador Joseph Wilson, for questioning the accuracy
of comments made by the President about Iraq's nuclear weapons program.
The Department of Justice recently initiated an investigation, but
according to a recent poll the public overwhelmingly prefers that the
investigation not be handled by the Department. Although we do not yet
know which individuals may be implicated as a result of a thorough
investigation, many Americans question whether Attorney General
Ashcroft can preside impartially over a probe that could prove very
damaging to his close associates in the White House, and to the
President. An Independent Counsel statute is absolutely essential so
that we have an institutionalized means for addressing allegations such
as these. We should not, as we are now, forced into an ad hoc and
situationally driven discussion of whether the Department of Justice
can investigate a particular case.
I have always believed that the Independent Counsel statute embodies
certain principles fundamental to our democracy. The alternative to an
Independent Counsel statute is a system in which the Attorney General
must decide how to handle substantive allegations against colleagues in
the Cabinet, or against the President. Often the President and the
Attorney General are long-time friends and political allies. The
Attorney General will not be trusted by some to ensure that an unbiased
investigation will be conducted. In other cases, many will question the
thoroughness of an investigation directed from inside the Department.
In a time of great public cynicism about government, the Independent
Counsel statute guarantees that even the President and his highest
officials will have to answer for their criminal malfeasance. In that
sense, this statute upholds the rule of law and will help stem the
distrust toward government. The Independent Counsel statute embodies
the bedrock American principle that no person is above the law.
I ask unanimous consent that the text of the Independent Counsel
Reform Act of 2003 be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1712
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Independent Counsel Reform
Act of 2003".
SEC. 2. INDEPENDENT COUNSEL STATUTE.
Chapter 40 of title 28, United States Code, is amended to
read as follows:
"CHAPTER 40--INDEPENDENT COUNSEL
"Sec.
"591. Applicability of provisions of this chapter.
"592. Preliminary investigation and application for appointment of an
independent counsel.
"593. Duties of the division of the court.
"594. Authority and duties of an independent counsel.
"595. Congressional oversight.
"596. Removal of an independent counsel; termination of office.
"597. Relationship with Department of Justice.
"598. Severability.
"599. Termination of effect of chapter.
"Sec. 591. Applicability of provisions of this chapter
"(a) Preliminary Investigation With Respect to Certain
Covered Persons.--The Attorney General shall conduct a
preliminary investigation in accordance with section 592
whenever the Attorney General receives information sufficient
to constitute grounds to investigate whether any person
described in subsection (b) may have violated any Federal
criminal law other than a violation classified as a Class B
or C misdemeanor or an infraction.
"(b) Persons to Whom Subsection (a) Applies.--The persons
referred to in subsection (a) are--
"(1) the President and Vice President;
"(2) any individual serving in a position listed in
section 5312 of title 5; and
"(3) the Chief of Staff to the President.
"(c) Preliminary Investigation With Respect to Other
Persons.--When the Attorney General determines that an
investigation or prosecution of a person by the Department of
Justice may result in a personal, financial, or political
conflict of interest, the Attorney General may conduct a
preliminary investigation of such person in accordance with
section 592 if the Attorney General receives information
sufficient to constitute grounds to investigate whether that
person may have violated Federal criminal law other than a
violation classified as a Class B or C misdemeanor or an
infraction.
"(d) Examination of Information To Determine Need for
Preliminary Investigation.--
"(1) Factors to be considered.--In determining under
subsection (a) or section 592(c)(2) whether grounds to
investigate exist, the Attorney General shall consider only--
"(A) the specificity of the information received; and
"(B) the credibility of the source of the information.
"(2) Time period for making determination.--The Attorney
General shall determine whether grounds to investigate exist
not later than 30 days after the information is first
received. If within that 30-day period the Attorney General
determines that the information is not specific or is not
from a credible source, then the Attorney General shall close
the matter. If within that 30-day period the Attorney General
determines that the information is specific and from a
credible source, the Attorney General shall, upon making that
determination, commence a preliminary investigation with
respect to that information. If the Attorney General is
unable to determine, within that 30-day period, whether the
information is specific and from a credible source, the
Attorney General shall, at the end of that 30-day period,
commence a preliminary investigation with respect to that
information.
"(e) Recusal of Attorney General.--
"(1) When recusal is required.--
"(A) Involving the attorney general.--If information
received under this chapter involves the Attorney General,
the next most senior official in the Department of Justice
who is not also recused shall perform the duties assigned
under this chapter to the Attorney General.
"(B) Personal or financial relationship.--If information
received under this chapter involves a person with whom the
Attorney General has a personal or financial relationship,
the Attorney General shall recuse himself or herself by
designating the next most senior official in the Department
of Justice who is not also recused to perform the duties
assigned under this chapter to the Attorney General.
"(2) Requirements for recusal determination.--Before
personally making any other determination under this chapter
with respect to information received under this chapter, the
Attorney General shall determine under paragraph (1)(B)
whether recusal is necessary. The Attorney General shall set
forth this determination in writing, identify the facts
considered by the Attorney General, and set forth the reasons
for the recusal. The Attorney General shall file this
determination with any notification or application
submitted to the division of the court under this chapter
with respect to that information.
"Sec. 592. Preliminary investigation and application for
appointment of an independent counsel
"(a) Conduct of Preliminary Investigation.--
"(1) In general.--A preliminary investigation conducted
under this chapter shall be of those matters as the Attorney
General considers appropriate in order to make a
determination, under subsection (b) or (c), with respect to
each potential violation, or allegation of a violation, of
criminal law. The Attorney General shall make that
determination not later than 120 days after the
[[Page S12454]]
preliminary investigation is commenced, except that, in the
case of a preliminary investigation commenced after a
congressional request under subsection (g), the Attorney
General shall make that determination not later than 120 days
after the request is received. The Attorney General shall
promptly notify the division of the court specified in
section 593(a) of the commencement of that preliminary
investigation and the date of commencement.
"(2) Limited authority of attorney general.--
"(A) In general.--In conducting preliminary investigations
under this chapter, the Attorney General shall have no
authority to plea bargain or grant immunity. The Attorney
General shall have the authority to convene grand juries and
issue subpoenas.
"(B) Not to be basis of determinations.--The Attorney
General shall not base a determination under this chapter--
"(i) that information with respect to a violation of
criminal law by a person is not specific and from a credible
source upon a determination that that person lacked the state
of mind required for the violation of criminal law; or
"(ii) that there are no substantial grounds to believe
that further investigation is warranted, upon a determination
that that person lacked the state of mind required for the
criminal violation involved, unless there is a preponderance
of the evidence that the person lacked that state of mind.
"(3) Extension of time for preliminary investigation.--The
Attorney General may apply to the division of the court for a
single extension, for a period of not more than 90 days, of
the 120-day period referred to in paragraph (1). The division
of the court may, upon a showing of good cause, grant that
extension.
"(b) Determination That Further Investigation Not
Warranted.--
"(1) Notification of division of the court.--If the
Attorney General, upon completion of a preliminary
investigation under this chapter, determines that there are
no substantial grounds to believe that further investigation
is warranted, the Attorney General shall promptly so notify
the division of the court, and the division of the court
shall have no power to appoint an independent counsel with
respect to the matters involved.
"(2) Form of notification.--Notification under paragraph
(1) shall contain a summary of the information received and a
summary of the results of the preliminary investigation.
"(c) Determination That Further Investigation is
Warranted.--
"(1) Application for appointment of independent counsel.--
The Attorney General shall apply to the division of the court
for the appointment of an independent counsel if--
"(A) the Attorney General, upon completion of a
preliminary investigation under this chapter, determines that
there are substantial grounds to believe that further
investigation is warranted; or
"(B) the 120-day period referred to in subsection (a)(1),
and any extension granted under subsection (a)(3), have
elapsed and the Attorney General has not filed a notification
with the division of the court under subsection (b)(1).
In determining under this chapter whether there are
substantial grounds to believe that further investigation is
warranted, the Attorney General shall comply with the written
or other established policies of the Department of Justice
with respect to the conduct of criminal investigations.
"(2) Receipt of additional information.--If, after
submitting a notification under subsection (b)(1), the
Attorney General receives additional information sufficient
to constitute grounds to investigate the matters to which
that notification related, the Attorney General shall--
"(A) conduct such additional preliminary investigation as
the Attorney General considers appropriate for a period of
not more than 120 days after the date on which that
additional information is received; and
"(B) otherwise comply with the provisions of this section
with respect to that additional preliminary investigation to
the same extent as any other preliminary investigation under
this section.
"(d) Contents of Application.--Any application for the
appointment of an independent counsel under this chapter
shall contain sufficient information to assist the division
of the court in selecting an independent counsel and in
defining that independent counsel's prosecutorial
jurisdiction so that the independent counsel has adequate
authority to fully investigate and prosecute the subject
matter and all matters directly related to that subject
matter.
"(e) Disclosure of Information.--Except as otherwise
provided in this chapter or as is deemed necessary for law
enforcement purposes, no officer or employee of the
Department of Justice or an office of independent counsel
may, without leave of the division of the court, disclose to
any individual outside the Department of Justice or that
office any notification, application, or any other document,
materials, or memorandum supplied to the division of the
court under this chapter. Nothing in this chapter shall be
construed as authorizing the withholding of information from
the Congress.
"(f) Limitation on Judicial Review.--The Attorney
General's determination under this chapter to apply to the
division of the court for the appointment of an independent
counsel shall not be reviewable in any court.
"(g) Congressional Request.--
"(1) By judiciary committee or members thereof.--The
Committee on the Judiciary of either House of the Congress,
or a majority of majority party members or a majority of all
nonmajority party members of either such committee, may
request in writing that the Attorney General apply for the
appointment of an independent counsel.
"(2) Report by attorney general pursuant to request.--Not
later than 30 days after the receipt of a request under
paragraph (1), the Attorney General shall submit, to the
committee making the request, or to the committee on which
the persons making the request serve, a report on whether the
Attorney General has begun or will begin a preliminary
investigation under this chapter of the matters with respect
to which the request is made, in accordance with section
591(a). The report shall set forth the reasons for the
Attorney General's decision regarding the preliminary
investigation as it relates to each of the matters with
respect to which the congressional request is made. If there
is such a preliminary investigation, the report shall include
the date on which the preliminary investigation began or will
begin.
"(3) Submission of information in response to
congressional request.--At the same time as any notification,
application, or any other document, material, or memorandum
is supplied to the division of the court pursuant to this
section with respect to a preliminary investigation of any
matter with respect to which a request is made under
paragraph (1), that notification, application, or other
document, material, or memorandum shall be supplied to the
committee making the request, or to the committee on which
the persons making the request serve. If no application for
the appointment of an independent counsel is made to the
division of the court under this section pursuant to such a
preliminary investigation, the Attorney General shall submit
a report to that committee stating the reasons why the
application was not made, addressing each matter with respect
to which the congressional request was made.
"(4) Disclosure of information.--Any report, notification,
application, or other document, material, or memorandum
supplied to a committee under this subsection shall not be
revealed to any third party, except that the committee may,
either on its own initiative or upon the request of the
Attorney General, make public such portion or portions of
that report, notification, application, document, material,
or memorandum as will not in the committee's judgment
prejudice the rights of any individual.
"Sec. 593. Duties of the division of the court
"(a) Reference to Division of the Court.--The division of
the court to which this chapter refers is the division
established under section 49 of this title.
"(b) Appointment and Jurisdiction of Independent
Counsel.--
"(1) Authority.--Upon receipt of an application under
section 592(c), the division of the court shall appoint an
appropriate independent counsel and define the independent
counsel's prosecutorial jurisdiction. The appointment shall
be made from a list of candidates comprised of 5
individuals recommended by the chief judge of each Federal
circuit and forwarded by January 15 of each year to the
division of the court.
"(2) Qualifications of independent counsel.--The division
of the court shall appoint as independent counsel an
individual who--
"(A) has appropriate experience, including, to the extent
practicable, prosecutorial experience and who has no actual
or apparent personal, financial, or political conflict of
interest;
"(B) will conduct the investigation on a full-time basis
and in a prompt, responsible, and cost-effective manner; and
"(C) does not hold any office of profit or trust under the
United States.
"(3) Scope of prosecutorial jurisdiction.--
"(A) In general.--In defining the independent counsel's
prosecutorial jurisdiction under this chapter, the division
of the court shall assure that the independent counsel has
adequate authority to fully investigate and prosecute--
"(i) the subject matter with respect to which the Attorney
General has requested the appointment of the independent
counsel; and
"(ii) all matters that are directly related to the
independent counsel's prosecutorial jurisdiction and the
proper investigation and prosecution of the subject matter of
such jurisdiction.
"(B) Directly related.--In this paragraph, the term
`directly related matters' includes Federal crimes, other
than those classified as Class B or C misdemeanors or
infractions, that impede the investigation and prosecution,
such as perjury, obstruction of justice, destruction of
evidence, and intimidation of witnesses.
"(4) Disclosure of identity and prosecutorial
jurisdiction.--An independent counsel's identity and
prosecutorial jurisdiction may not be made public except upon
the request of the Attorney General or upon a determination
of the division of the court that disclosure of the identity
and prosecutorial jurisdiction of that independent counsel
would be in the best interests of justice. In any event, the
identity and prosecutorial jurisdiction of the independent
counsel shall be
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made public when any indictment is returned, or any criminal
information is filed, pursuant to the independent counsel's
investigation.
"(c) Return for Further Explanation.--Upon receipt of a
notification under section 592 from the Attorney General that
there are no substantial grounds to believe that further
investigation is warranted with respect to information
received under this chapter, the division of the court shall
have no authority to overrule this determination but may
return the matter to the Attorney General for further
explanation of the reasons for that determination.
"(d) Vacancies.--If a vacancy in office arises by reason
of the resignation, death, or removal of an independent
counsel, the division of the court shall appoint an
independent counsel to complete the work of the independent
counsel whose resignation, death, or removal caused the
vacancy, except that in the case of a vacancy arising by
reason of the removal of an independent counsel, the division
of the court may appoint an acting independent counsel to
serve until any judicial review of the removal is completed.
"(e) Attorneys' Fees.--
"(1) Award of fees.--Upon the request of an individual who
is the subject of an investigation conducted by an
independent counsel pursuant to this chapter, the division of
the court may, if no indictment is brought against that
individual pursuant to the investigation, award reimbursement
for those reasonable attorneys' fees incurred by the
individual during the investigation which would not have been
incurred but for the requirements of this chapter. The
division of the court shall notify the independent counsel
who conducted the investigation and the Attorney General of
any request for attorneys' fees under this subsection.
"(2) Evaluation of fees.--The division of the court shall
direct the independent counsel and the Attorney General to
file a written evaluation of any request for attorneys' fees
under this subsection, addressing--
"(A) the sufficiency of the documentation;
"(B) the need or justification for the underlying item;
"(C) whether the underlying item would have been incurred
but for the requirements of this chapter; and
"(D) the reasonableness of the amount of money requested.
"(f) Disclosure of Information.--The division of the court
may, subject to section 594(h)(2), allow the disclosure of
any notification, application, or any other document,
material, or memorandum supplied to the division of the court
under this chapter.
"(g) Amicus Curiae Briefs.--When presented with
significant legal issues, the division of the court may
disclose sufficient information about the issues to permit
the filing of timely amicus curiae briefs.
"Sec. 594. Authority and duties of an independent counsel
"(a) Authorities.--Notwithstanding any other provision of
law, an independent counsel appointed under this chapter
shall have, with respect to all matters in that independent
counsel's prosecutorial jurisdiction established under this
chapter, full power and independent authority to exercise all
investigative and prosecutorial functions and powers of the
Department of Justice, the Attorney General, and any other
officer or employee of the Department of Justice, except that
the Attorney General shall exercise direction or control as
to those matters that specifically require the Attorney
General's personal action under section 2516 of title 18.
Such investigative and prosecutorial functions and powers
shall include--
"(1) conducting proceedings before grand juries and other
investigations;
"(2) participating in court proceedings and engaging in
any litigation, including civil and criminal matters, that
the independent counsel considers necessary;
"(3) appealing any decision of a court in any case or
proceeding in which the independent counsel participates in
an official capacity;
"(4) reviewing all documentary evidence available from any
source;
"(5) determining whether to contest the assertion of any
testimonial privilege;
"(6) receiving appropriate national security clearances
and, if necessary, contesting in court (including, where
appropriate, participating in in camera proceedings) any
claim of privilege or attempt to withhold evidence on grounds
of national security;
"(7) making applications to any Federal court for a grant
of immunity to any witness, consistent with applicable
statutory requirements, or for warrants, subpoenas, or other
court orders, and, for purposes of sections 6003, 6004, and
6005 of title 18, exercising the authority vested in a United
States attorney or the Attorney General;
"(8) inspecting, obtaining, or using the original or a
copy of any tax return, in accordance with the applicable
statutes and regulations, and, for purposes of section 6103
of the Internal Revenue Code of 1986 and the regulations
issued thereunder, exercising the powers vested in a United
States attorney or the Attorney General;
"(9) initiating and conducting prosecutions in any court
of competent jurisdiction, framing and signing indictments,
filing informations, and handling all aspects of any case, in
the name of the United States; and
"(10) consulting with the United States attorney for the
district in which any violation of law with respect to which
the independent counsel is appointed was alleged to have
occurred.
"(b) Compensation.--
"(1) In general.--An independent counsel appointed under
this chapter shall receive compensation at the annual rate of
basic pay payable for level IV of the Executive Schedule
under section 5315 of title 5.
"(2) Travel expenses.--Except as provided in paragraph
(3), an independent counsel and persons appointed under
subsection (c) shall be entitled to the payment of travel
expenses as provided by subchapter I of chapter 57 of title
5, United States Code, including travel, per diem, and
subsistence expenses in accordance with section 5703 of title
5.
"(3) Travel to primary office.--
"(A) In general.--After 1 year of service under this
chapter, an independent counsel and persons appointed under
subsection (c) shall not be entitled to the payment of
travel, per diem, or subsistence expenses under subchapter I
of chapter 57 of title 5, United States Code, for the purpose
of commuting to or from the city in which the primary office
of the independent counsel or person is located. The 1-year
period may be extended for successive 6-month periods if the
independent counsel and the division of the court certify
that the payment is in the public interest to carry out the
purposes of this chapter.
"(B) Relevant factors.--In making any certification under
this paragraph with respect to travel and subsistence
expenses of an independent counsel or person appointed under
subsection (c), that employee shall consider, among other
relevant factors--
"(i) the cost to the Government of reimbursing those
travel and subsistence expenses;
"(ii) the period of time for which the independent counsel
anticipates that the activities of the independent counsel or
person, as the case may be, will continue;
"(iii) the personal and financial burdens on the
independent counsel or person, as the case may be, of
relocating so that the travel and subsistence expenses would
not be incurred; and
"(iv) the burdens associated with appointing a new
independent counsel, or appointing another person under
subsection (c), to replace the individual involved who is
unable or unwilling to so relocate.
"(c) Additional Personnel.--For the purposes of carrying
out the duties of an office of independent counsel, an
independent counsel may appoint, fix the compensation, and
assign the duties of such employees as such independent
counsel considers necessary (including investigators,
attorneys, and part-time consultants). The positions of all
such employees are exempted from the competitive service.
Such employees shall be compensated at levels not to exceed
those payable for comparable positions in the Office of
United States Attorney for the District of Columbia under
sections 548 and 550, but in no event shall any such employee
be compensated at a rate greater than the rate of basic pay
payable for level ES-4 of the Senior Executive Service
Schedule under section 5382 of title 5, as adjusted for the
District of Columbia under section 5304 of that title
regardless of the locality in which an employee is employed.
"(d) Assistance of Department of Justice.--
"(1) In carrying out functions.--An independent counsel
may request assistance from the Department of Justice in
carrying out the functions of the independent counsel, and
the Department of Justice shall provide that assistance,
which may include access to any records, files, or other
materials relevant to matters within that independent
counsel's prosecutorial jurisdiction, and the use of the
resources and personnel necessary to perform that independent
counsel's duties. At the request of an independent counsel,
prosecutors, administrative personnel, and other employees of
the Department of Justice may be detailed to the staff of the
independent counsel to the extent the number of staff so
detailed is reasonably related to the number of staff
ordinarily assigned by the Department to conduct an
investigation of similar size and complexity.
"(2) Payment of and reports on expenditures of independent
counsel.--The Department of Justice shall pay all costs
relating to the establishment and operation of any office of
independent counsel. The Attorney General shall submit to the
Congress, not later than 30 days after the end of each fiscal
year, a report on amounts paid during that fiscal year for
expenses of investigations and prosecutions by independent
counsel. Each such report shall include a statement of all
payments made for activities of independent counsel but may
not reveal the identity or prosecutorial jurisdiction of any
independent counsel which has not been disclosed under
section 593(b)(4).
"(e) Referral of Directly Related Matters to an
Independent Counsel.--An independent counsel may ask the
Attorney General or the division of the court to refer to the
independent counsel only such matters that are directly
related to the independent counsel's prosecutorial
jurisdiction, and the Attorney General or the division of the
court, as the case may be, may refer such matters. If the
Attorney General refers a matter to an independent counsel on
the Attorney General's own initiative, the independent
counsel may accept that referral only if the matter directly
relates to the independent counsel's prosecutorial
jurisdiction. If the Attorney General refers any matter to
the independent counsel pursuant to
[[Page S12456]]
the independent counsel's request, or if the independent
counsel accepts a referral made by the Attorney General on
the Attorney General's own initiative, the independent
counsel shall so notify the division of the court.
"(f) Compliance With Policies of the Department of
Justice.--
"(1) In general.--An independent counsel shall comply with
the written or other established policies of the Department
of Justice respecting enforcement of the criminal laws except
when that policy requires the specific approval of the
Attorney General or another Department of Justice official.
If a policy requires the approval of the Attorney General or
other Department of Justice official, an independent counsel
is encouraged to consult with the Attorney General or other
official. To identify and understand these policies and
policies under subsection (l)(1)(B), the independent counsel
shall consult with the Department of Justice.
"(2) National security.--An independent counsel shall
comply with guidelines and procedures used by the Department
in the handling and use of classified material.
"(3) Relief from a violation of policies.--
"(A) In general.--A person who is a target, witness, or
defendant in, or otherwise directly affected by, an
investigation by an independent counsel and who has reason to
believe that the independent counsel is violating a written
policy of the Department of Justice material to the
independent counsel's investigation, may ask the Attorney
General to determine whether the independent counsel has
violated that policy. The Attorney General shall respond in
writing within 30 days.
"(B) Relief.--If the Attorney General determines that the
independent counsel has violated a written policy of the
Department of Justice material to the investigation by the
independent counsel pursuant to subparagraph (A), the
Attorney General may ask the division of the court to order
the independent counsel to comply with that policy, and the
division of the court may order appropriate relief.
"(g) Dismissal of Matters.--The independent counsel shall
have full authority to dismiss matters within the independent
counsel's prosecutorial jurisdiction without conducting an
investigation or at any subsequent time before prosecution,
if to do so would be consistent with the written or other
established policies of the Department of Justice with
respect to the enforcement of criminal laws.
"(h) Reports by Independent Counsel.--
"(1) Required reports.--An independent counsel shall--
"(A) file with the division of the court, with respect to
the 6-month period beginning on the date of his or her
appointment, and with respect to each 6-month period
thereafter until the office of that independent counsel
terminates, a report which identifies and explains major
expenses, and summarizes all other expenses, incurred by that
office during the 6-month period with respect to which the
report is filed, and estimates future expenses of that
office; and
"(B) before the termination of the independent counsel's
office under section 596(b), file a final report with the
division of the court, setting forth only the following:
"(i) the jurisdiction of the independent counsel's
investigation;
"(ii) a list of indictments brought by the independent
counsel and the disposition of each indictment, including any
verdicts, pleas, convictions, pardons, and sentences; and
"(iii) a summary of the expenses of the independent
counsel's office.
"(2) Disclosure of information in reports.--The division
of the court may release to the Congress, the public, or any
appropriate person, those portions of a report made under
this subsection as the division of the court considers
appropriate. The division of the court shall make those
orders as are appropriate to protect the rights of any
individual named in that report and to prevent undue
interference with any pending prosecution. The division of
the court may make any portion of a final report filed under
paragraph (1)(B) available to any individual named in that
report for the purposes of receiving within a time limit set
by the division of the court any comments or factual
information that the individual may submit. Such comments and
factual information, in whole or in part, may, in the
discretion of the division of the court, be included as an
appendix to the final report.
"(3) Publication of reports.--At the request of an
independent counsel, the Public Printer shall cause to be
printed any report previously released to the public under
paragraph (2). The independent counsel shall certify the
number of copies necessary for the public, and the Public
Printer shall place the cost of the required number to the
debit of the independent counsel. Additional copies shall be
made available to the public through the depository library
program and Superintendent of Documents sales program
pursuant to sections 1702 and 1903 of title 44.
"(i) Independence From Department of Justice.--Each
independent counsel appointed under this chapter, and the
persons appointed by that independent counsel under
subsection (c), are employees of the Department of Justice
for purposes of sections 202 through 209 of title 18.
"(j) Standards of Conduct Applicable to Independent
Counsel, Persons Serving in the Office of an Independent
Counsel, and Their Law Firms.--
"(1) Restrictions on employment while independent counsel
and appointees are serving.--
"(A) Independent counsel.--During the period in which an
independent counsel is serving under this chapter--
"(i) that independent counsel shall have no other paid
employment; and
"(ii) any person associated with a firm with which that
independent counsel is associated may not represent in any
matter any person involved in any investigation or
prosecution under this chapter.
"(B) Other persons.--During the period in which any person
appointed by an independent counsel under subsection (c) is
serving in the office of independent counsel, that person may
not represent in any matter any person involved in any
investigation or prosecution under this chapter.
"(2) Post employment restrictions on independent counsel
and appointees.--Each independent counsel and each person
appointed by that independent counsel under subsection (c)
may not--
"(A) for 3 years following the termination of the service
under this chapter of that independent counsel or appointed
person, as the case may be, represent any person in any
matter if that individual was the subject of an investigation
or prosecution under this chapter that was conducted by that
independent counsel; or
"(B) for 1 year following the termination of the service
under this chapter of that independent counsel or appointed
person, as the case may be, represent any person in any
matter involving any investigation or prosecution under this
chapter.
"(3) One-year ban on representation by members of firms of
independent counsel.--Any person who is associated with a
firm with which an independent counsel is associated or
becomes associated after termination of the service of that
independent counsel under this chapter may not, for 1 year
following that termination, represent any person in any
matter involving any investigation or prosecution under this
chapter.
"(4) Definitions.--For purposes of this subsection--
"(A) the term `firm' means a law firm whether organized as
a partnership or corporation; and
"(B) a person is `associated' with a firm if that person
is an officer, director, partner, or other member or employee
of that firm.
"(5) Enforcement.--The Attorney General and the Director
of the Office of Government Ethics have authority to enforce
compliance with this subsection. The designated agency ethics
official for the Department of Justice shall be the ethics
adviser for the independent counsel and employees of the
independent counsel.
"(k) Custody of Records of an Independent Counsel.--
"(1) Transfer of records.--Upon termination of the office
of an independent counsel, that independent counsel shall
transfer to the Archivist of the United States all records
which have been created or received by that office. Before
this transfer, the independent counsel shall clearly identify
which of these records are subject to rule 6(e) of the
Federal Rules of Criminal Procedure as grand jury materials
and which of these records have been classified as national
security information. Any records which were compiled by an
independent counsel and, upon termination of the independent
counsel's office, were stored with the division of the court
or elsewhere before the enactment of the Independent Counsel
Reauthorization Act of 1987, shall also be transferred to the
Archivist of the United States by the division of the court
or the person in possession of those records.
"(2) Maintenance, use, and disposal of records.--Records
transferred to the Archivist under this chapter shall be
maintained, used, and disposed of in accordance with chapters
21, 29, and 33 of title 44.
"(3) Access to records.--
"(A) In general.--Subject to paragraph (4), access to the
records transferred to the Archivist under this chapter shall
be governed by section 552 of title 5.
"(B) Access by department of justice.--The Archivist
shall, upon written application by the Attorney General,
disclose any such records to the Department of Justice for
purposes of an ongoing law enforcement investigation or
court proceeding, except that, in the case of grand jury
materials, those records shall be so disclosed only by
order of the court of jurisdiction under rule 6(e) of the
Federal Rules of Criminal Procedure.
"(C) Exception.--Notwithstanding any restriction on access
imposed by law, the Archivist and persons employed by the
National Archives and Records Administration who are engaged
in the performance of normal archival work shall be permitted
access to the records transferred to the Archivist under this
chapter.
"(4) Records provided by congress.--Records of an
investigation conducted by a committee of the House of
Representatives or the Senate which are provided to an
independent counsel to assist in an investigation or
prosecution conducted by that independent counsel--
"(A) shall be maintained as a separate body of records
within the records of the independent counsel; and
"(B) shall, after the records have been transferred to the
Archivist under this chapter, be made available, except as
provided in
[[Page S12457]]
paragraph (3) (B) and (C), in accordance with the rules
governing release of the records of the House of Congress
that provided the records to the independent counsel.
Subparagraph (B) shall not apply to those records which have
been surrendered pursuant to grand jury or court proceedings.
"(l) Cost and Administrative Support.--
"(1) Cost controls.--
"(A) In general.--An independent counsel shall--
"(i) conduct all activities with due regard for expense;
"(ii) authorize only reasonable and lawful expenditures;
and
"(iii) promptly, upon taking office, assign to a specific
employee the duty of certifying that expenditures of the
independent counsel are reasonable and made in accordance
with law.
"(B) Liability for invalid certification.--An employee
making a certification under subparagraph (A)(iii) shall be
liable for an invalid certification to the same extent as a
certifying official certifying a voucher is liable under
section 3528 of title 31.
"(C) Department of justice policies.--An independent
counsel shall comply with the established policies of the
Department of Justice respecting expenditures of funds.
"(2) Budget.--The independent counsel, after consulting
with the Attorney General, shall, within 90 days of
appointment, submit a budget for the first year of the
investigation and, on the anniversary of the appointment, for
each year thereafter to the Attorney General and the General
Accounting Office. The General Accounting Office shall review
the budget and submit a written appraisal of the budget to
the independent counsel and the Committees on Governmental
Affairs and Appropriations of the Senate and the Committees
on the Judiciary and Appropriations of the House of
Representatives.
"(3) Administrative support.--The Director of the
Administrative Office of the United States Courts shall
provide administrative support and guidance to each
independent counsel. No officer or employee of the
Administrative Office of the United States Courts shall
disclose information related to an independent counsel's
expenditures, personnel, or administrative acts or
arrangements without the authorization of the independent
counsel.
"(4) Office space.--The Administrator of General Services,
in consultation with the Director of the Administrative
Office of the United States Courts, shall promptly provide
appropriate office space for each independent counsel. The
office space shall be within a Federal building unless the
Administrator of General Services determines that other
arrangements would cost less. Until the office space is
provided, the Administrative Office of the United States
Courts shall provide newly appointed independent counsels
immediately upon appointment with appropriate, temporary
office space, equipment, and supplies.
"(m) Expedited Judicial Consideration and Review.--It
shall be the duty of the courts of the United States to
advance on the docket and to expedite to the greatest extent
possible the disposition of matters relating to an
investigation and prosecution by an independent counsel under
this chapter consistent with the purposes of this chapter.
"Sec. 595. Congressional oversight
"(a) Oversight of Conduct of Independent Counsel.--
"(1) Congressional oversight.--The appropriate committees
of the Congress shall have oversight jurisdiction with
respect to the official conduct of any independent counsel
appointed under this chapter, and the independent counsel
shall have the duty to cooperate with the exercise of that
oversight jurisdiction.
"(2) Reports to congress.--An independent counsel
appointed under this chapter shall submit to the Congress
annually a report on the activities of the independent
counsel, including a description of the progress of any
investigation or prosecution conducted by the independent
counsel. The report may omit any matter that in the judgment
of the independent counsel should be kept confidential, but
shall provide information adequate to justify the
expenditures that the office of the independent counsel has
made.
"(b) Oversight of Conduct of Attorney General.--Within 15
days after receiving an inquiry about a particular case under
this chapter, which is a matter of public knowledge, from a
committee of the Congress with jurisdiction over this
chapter, the Attorney General shall provide the following
information to that committee with respect to the case:
"(1) When the information about the case was received.
"(2) Whether a preliminary investigation is being
conducted, and if so, the date it began.
"(3) Whether an application for the appointment of an
independent counsel or a notification that further
investigation is not warranted has been filed with the
division of the court, and if so, the date of that filing.
"Sec. 596. Removal of an independent counsel; termination of
office
"(a) Removal; Report on Removal.--
"(1) Grounds for removal.--
"(A) In general.--An independent counsel appointed under
this chapter may be removed from office, other than by
impeachment and conviction, only by the personal action of
the Attorney General and only for good cause, physical or
mental disability (if not prohibited by law protecting
persons from discrimination on the basis of such a
disability), or any other condition that impairs the
performance of that independent counsel's duties.
"(B) Good cause.--In this paragraph, the term `good cause'
includes--
"(i) a knowing and material failure to comply with written
Department of Justice policies relevant to the conduct of a
criminal investigation; and
"(ii) an actual personal, financial, or political conflict
of interest.
"(2) Report to division of the court and congress.--If an
independent counsel is removed from office, the Attorney
General shall promptly submit to the division of the court
and the Committees on the Judiciary of the Senate and the
House of Representatives a report specifying the facts found
and the ultimate grounds for the removal. The committees
shall make available to the public that report, except that
each committee may, if necessary to protect the rights of any
individual named in the report or to prevent undue
interference with any pending prosecution, postpone or
refrain from publishing any or all of the report. The
division of the court may release any or all of the report in
accordance with section 594(h)(2).
"(3) Judicial review of removal.--An independent counsel
removed from office may obtain judicial review of the removal
in a civil action commenced in the United States District
Court for the District of Columbia. A member of the division
of the court may not hear or determine any such civil action
or any appeal of a decision in any such civil action. The
independent counsel may be reinstated or granted other
appropriate relief by order of the court.
"(b) Termination of Office.--
"(1) Termination by action of independent counsel.--An
office of independent counsel shall terminate when--
"(A) the independent counsel notifies the Attorney General
that the investigation of all matters within the
prosecutorial jurisdiction of the independent counsel or
accepted by the independent counsel under section 594(e), and
any resulting prosecutions, have been completed or so
substantially completed that it would be appropriate for the
Department of Justice to complete those investigations and
prosecutions; and
"(B) the independent counsel files a final report in
compliance with section 594(h)(1)(B).
"(2) Termination by division of the court.--The division
of the court, either on its own motion or upon the request of
the Attorney General, may terminate an office of independent
counsel at any time, on the ground that the investigation of
all matters within the prosecutorial jurisdiction of the
independent counsel or accepted by the independent counsel
under section 594(e), and any resulting prosecutions, have
been completed or so substantially completed that it would be
appropriate for the Department of Justice to complete those
investigations and prosecutions. At the time of that
termination, the independent counsel shall file the final
report required by section 594(h)(1)(B). If the Attorney
General has not made a request under this paragraph, the
division of the court shall determine on its own motion
whether termination is appropriate under this paragraph no
later than 2 years after the appointment of an independent
counsel.
"(3) Termination after 2 years.--
"(A) General rule.--Except as provided in subparagraph
(B), the term of an independent counsel shall terminate at
the expiration of 2 years after the date of appointment of
the independent counsel and any matters under investigation
by the independent counsel shall be transferred to the
Attorney General.
"(B) Exceptions.--
"(i) Good cause.--An independent counsel may petition the
division of the court to extend the investigation of the
independent counsel for up to 1 year for good cause. The
division of the court shall determine whether the grant of
such an extension is warranted and determine the length of
each extension.
"(ii) Dilatory tactics.--If the investigation of an
independent counsel was delayed by dilatory tactics by
persons that could provide evidence that would significantly
assist the investigation, an independent counsel may petition
the division of the court to extend the investigation of the
independent counsel for an additional period of time equal to
the amount of time lost by the dilatory tactics. If the
division of the court finds that dilatory tactics did delay
the investigation, the division of the court shall extend the
investigation for a period equal to the delay.
"(c) Audits.--
"(1) In general.--On or before June 30 of each year, an
independent counsel shall prepare a statement of expenditures
for the 6 months that ended on the immediately preceding
March 31. On or before December 31 of each year, an
independent counsel shall prepare a statement of expenditures
for the fiscal year that ended on the immediately preceding
September 30. An independent counsel whose office is
terminated prior to the end of the fiscal year shall prepare
a statement of expenditures on or before the date that is 90
days after the date on which the office is terminated.
"(2) Comptroller general review.--The Comptroller General
shall--
"(A) conduct a financial review of a mid-year statement
and a financial audit of a
[[Page S12458]]
year-end statement and statement on termination; and
"(B) report the results to the Committee on the Judiciary,
Committee on Governmental Affairs, and Committee on
Appropriations of the Senate and the Committee on the
Judiciary, Committee on Government Reform, and Committee on
Appropriations of the House of Representatives not later than
90 days following the submission of each statement.
"Sec. 597. Relationship with Department of Justice
"(a) Suspension of Other Investigations and Proceedings.--
Whenever a matter is in the prosecutorial jurisdiction of an
independent counsel or has been accepted by an independent
counsel under section 594(e), the Department of Justice, the
Attorney General, and all other officers and employees of the
Department of Justice shall suspend all investigations and
proceedings regarding that matter, except to the extent
required by section 594(d)(1), and except insofar as the
independent counsel agrees in writing that the investigation
or proceedings may be continued by the Department of Justice.
"(b) Presentation as Amicus Curiae Permitted.--Nothing in
this chapter shall prevent the Attorney General or the
Solicitor General from making a presentation as amicus curiae
to any court as to issues of law raised by any case or
proceeding in which an independent counsel participates in an
official capacity or any appeal of such a case or proceeding.
"Sec. 598. Severability
"If any provision of this chapter or the application
thereof to any person or circumstance is held invalid, the
remainder of this chapter and the application of
that provision to other persons not similarly situated or
to other circumstances shall not be affected by that
invalidation.
"Sec. 599. Termination of effect of chapter
"This chapter shall cease to be effective 5 years after
the date of enactment of the Independent Counsel Reform Act
of 2003, except that this chapter shall continue in effect
with respect to then pending matters before an independent
counsel that in the judgment of that counsel require the
continuation until that independent counsel determines those
matters have been completed.".
SEC. 3. ASSIGNMENT OF JUDGES TO DIVISION TO APPOINT
INDEPENDENT COUNSELS.
Section 49 of title 28, United States Code, is amended to
reads as follows:
"Sec. 49. Assignment of judges to division to appoint
independent counsels
"(a) In General.--Beginning with the 3-year period
commencing on the date of the enactment of the Independent
Counsel Reform Act of 2003, 3 judges shall be assigned for
each successive 3-year period to a division of the United
States Court of Appeals for the District of Columbia to be
the division of the court for the purpose of appointing
independent counsels. The Clerk of the United States Court of
Appeals for the District of Columbia Circuit shall serve as
the clerk of the division of the court and shall provide such
services as are needed by the division of the court.
"(b) Other Judicial Assignments.--Except as provided in
subsection (e), assignment to the division of the court shall
not be a bar to other judicial assignments during the term of
the division of the court.
"(c) Designation and Assignment.--The Chief Justice of the
United States shall designate and assign by a lottery of all
circuit court judges, 3 circuit court judges 1 of whom shall
be a judge of the United States Court of Appeals for the
District of Columbia, to the division of the court. Not more
than 1 judge may be named to the division of the court from a
particular court.
"(d) Vacancy.--Any vacancy in the division of the court
shall be filled only for the remainder of the 3-year period
in which that vacancy occurs and in the same manner as
initial assignments to the division of the court were made.
"(e) Recusal.--Except as otherwise provided in chapter 40
of this title, no member of the division of the court who
participated in a function conferred on the division of the
court under chapter 40 of this title involving an independent
counsel shall be eligible to participate in any judicial
proceeding concerning a matter that--
"(1) involves that independent counsel while the
independent counsel is serving in that office; or
"(2) involves the exercise of the independent counsel's
official duties, regardless of whether the independent
counsel is still serving in that office.".
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