[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1712 Introduced in Senate (IS)]
108th CONGRESS
1st Session
S. 1712
To re-establish and reform the independent counsel statute.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 3, 2003
Mr. Lieberman (for himself and Mr. Levin) introduced the following
bill; which was read twice and referred to the Committee on
Governmental Affairs
_______________________________________________________________________
A BILL
To re-establish and reform the independent counsel statute.
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 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 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 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 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 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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