II 

116TH CONGRESS 

1ST SESSION S. 71 

To ensure independent investigations and judicial review of the removal of 

a special counsel, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 9, 2019 

Mr. GRAHAM (for himself, Mr. COONS, Mr. TILLIS, and Mr. BOOKER) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

A BILL 

To ensure independent investigations and judicial review of 

the removal of a special counsel, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Special Counsel Inde5 pendence and Integrity Act’’. 

6 SEC. 2. DEPARTMENT OF JUSTICE SPECIAL COUNSEL. 

7 (a) IN GENERAL.—Part II of title 28, United States 

8 Code, is amended by inserting after chapter 40A the fol9 lowing: 


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1 ‘‘CHAPTER 40B—SPECIAL COUNSEL 

‘‘Sec. 

‘‘599K–1. Grounds for appointing a Special Counsel. 

‘‘599K–2. Alternatives available to the Attorney General. 

‘‘599K–3. Qualifications of the Special Counsel. 

‘‘599K–4. Jurisdiction. 

‘‘599K–5. Staff. 

‘‘599K–6. Powers and authority. 

‘‘599K–7. Conduct and accountability generally. 

‘‘599K–8. Limitation on removal of Special Counsel and certain other officials. 

‘‘599K–9. Notification and reports by the Special Counsel. 

‘‘599K–10. Notification and reports by the Attorney General. 

‘‘599K–11. No creation of rights. 

2 ‘‘§ 599K–1. Grounds for appointing a Special Counsel 

3 ‘‘(a) IN GENERAL.—The Attorney General shall ap4 point a Special Counsel if the Attorney General determines 

5 that— 

6 ‘‘(1) criminal investigation of a person or mat7 ter is warranted; 

8 ‘‘(2) investigation or prosecution of the person 

9 or matter described in paragraph (1) by the office 

10 of a United States attorney or litigating Division of 

11 the Department of Justice (in this chapter referred 

12 to as the ‘Department’) would present a conflict of 

13 interest for the Department or other extraordinary 

14 circumstances; and 

15 ‘‘(3) under the circumstances, it would be in 

16 the public interest to appoint an outside Special 

17 Counsel to assume responsibility for the matter. 

18 ‘‘(b) RECUSAL.—The Attorney General who has been 

19 confirmed to that position by the Senate or, in the case 


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1 of the vacancy, absence, disability, or recusal of the Attor2 ney General, the most senior Senate-confirmed officer of 

3 the Department listed in section 508 who is not recused 

4 from the matter shall exercise the authority under this 

5 chapter. 

6 ‘‘§ 599K–2. Alternatives available to the Attorney Gen7 eral 

8 ‘‘(a) IN GENERAL.—When matters are brought to the 

9 attention of the Attorney General that might warrant con10 sideration of appointment of a Special Counsel, the Attor11 ney General may— 

12 ‘‘(1) appoint a Special Counsel in accordance 

13 with this chapter; 

14 ‘‘(2) direct that an initial investigation, con15 sisting of such factual inquiry or legal research as 

16 the Attorney General determines appropriate, be 

17 conducted in order to better inform the decision; or 

18 ‘‘(3) conclude that under the circumstances of 

19 the matter, the public interest would not be served 

20 by removing the investigation from the normal proc21 esses of the Department, and that the appropriate 

22 component of the Department should handle the 

23 matter. 

24 ‘‘(b) ADDITIONAL DIRECTION.—If the Attorney Gen25 eral reaches a conclusion described in subsection (a)(3), 


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1 the Attorney General may direct that appropriate steps 

2 be taken to mitigate any conflicts of interest, such as 

3 recusal of particular officials. 

4 ‘‘§ 599K–3. Qualifications of the Special Counsel 

5 ‘‘(a) IN GENERAL.—An individual named as Special 

6 Counsel under this chapter shall be— 

7 ‘‘(1) a lawyer with a reputation for integrity 

8 and impartial decisionmaking, and with appropriate 

9 experience to ensure both that the investigation will 

10 be conducted ably, expeditiously, and thoroughly, 

11 and that investigative and prosecutorial decisions 

12 will be supported by an informed understanding of 

13 the criminal law and Department policies; and 

14 ‘‘(2) selected from outside the United States 

15 Government. 

16 ‘‘(b) PRIORITY OF INVESTIGATION.—An individual 

17 named as Special Counsel under this chapter shall agree 

18 that the responsibilities of the individual as Special Coun19 sel shall take first precedence in the professional life of 

20 the individual, and that it may be necessary to work full 

21 time on the investigation, depending on the complexity of 

22 the investigation and the stage of the investigation. 

23 ‘‘(c) APPOINTMENT METHOD.— 

24 ‘‘(1) IN GENERAL.—The Attorney General shall 

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1 ministration to ensure an appropriate method of ap2 pointment, and to ensure that a Special Counsel un3 dergoes an appropriate background investigation and 

4 a detailed review of ethics and conflicts of interest 

5 issues. 

6 ‘‘(2) CONFIDENTIAL EMPLOYEE.—A Special 

7 Counsel shall be appointed as a confidential em8 ployee, as described in section 7511(b)(2)(C) of title 

9 5. 

10 ‘‘§ 599K–4. Jurisdiction 

11 ‘‘(a) ORIGINAL JURISDICTION.— 

12 ‘‘(1) IN GENERAL.—The jurisdiction of a Spe13 cial Counsel appointed under this chapter shall be 

14 established by the Attorney General, and shall in15 clude the authority to investigate and prosecute Fed16 eral crimes committed in the course of, and with in17 tent to interfere with, the Special Counsel’s inves18 tigation, such as perjury, obstruction of justice, de19 struction of evidence, and intimidation of witnesses, 

20 and to conduct appeals arising out of the matter 

21 being investigated or prosecuted. 

22 ‘‘(2) STATEMENT OF THE MATTER TO BE IN23 VESTIGATED.—The Special Counsel shall be pro24 vided with a specific factual statement of the matter 

25 to be investigated. 


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1 ‘‘(b) ADDITIONAL JURISDICTION.—If in the course of 

2 the investigation by a Special Counsel appointed under 

3 this chapter, the Special Counsel concludes that additional 

4 jurisdiction beyond that specified in the original jurisdic5 tion is necessary in order to fully investigate and resolve 

6 the matters assigned, or to investigate new matters that 

7 come to light in the course of the investigation, the Special 

8 Counsel shall consult with the Attorney General, who shall 

9 determine whether to include the additional matters within 

10 the jurisdiction of the Special Counsel or assign them else11 where. 

12 ‘‘(c) CIVIL AND ADMINISTRATIVE JURISDICTION.— 

13 ‘‘(1) IN GENERAL.—If in the course of an in14 vestigation by a Special Counsel appointed under 

15 this chapter, the Special Counsel determines that 

16 administrative remedies, civil sanctions, or other 

17 governmental action outside the criminal justice sys18 tem might be appropriate, the Special Counsel shall 

19 consult with the Attorney General with respect to 

20 the appropriate component to take any necessary ac21 tion. 

22 ‘‘(2) LIMITATION.—A Special Counsel ap23 pointed under this chapter shall not have civil or ad24 ministrative authority unless specifically granted 

25 such jurisdiction by the Attorney General. 


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1 ‘‘§ 599K–5. Staff 

2 ‘‘(a) IN GENERAL.—A Special Counsel appointed 

3 under this chapter may request the assignment of appro4 priate personnel of the Department to assist the Special 

5 Counsel. The Department shall gather and provide the 

6 Special Counsel with the names and resumes of appro7 priate personnel available for detail. The Special Counsel 

8 may also request the detail of specific personnel, and the 

9 office for which the designated personnel work shall make 

10 reasonable efforts to accommodate the request. 

11 ‘‘(b) ASSIGNMENT OF DUTIES.—A Special Counsel 

12 appointed under this chapter shall assign the duties and 

13 supervise the work of personnel while they are assigned 

14 to the Special Counsel. 

15 ‘‘(c) HIRING OF ADDITIONAL PERSONNEL.—If nec16 essary, a Special Counsel appointed under this chapter 

17 may request that additional personnel be hired or assigned 

18 from outside the Department. 

19 ‘‘(d) COOPERATION.—All personnel in the Depart20 ment shall cooperate to the fullest extent possible with a 

21 Special Counsel appointed under this chapter. 

22 ‘‘§ 599K–6. Powers and authority 

23 ‘‘(a) IN GENERAL.—Subject to the limitations of this 

24 chapter, a Special Counsel appointed under this chapter 

25 shall exercise, within the scope of the jurisdiction of the 

26 Special Counsel, the full power and independent authority 


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1 to exercise all investigative and prosecutorial functions of 

2 any United States attorney. 

3 ‘‘(b) SPECIAL COUNSEL DISCRETION.—Except as 

4 otherwise provided in this chapter, a Special Counsel ap5 pointed under this chapter shall determine whether and 

6 to what extent to inform or consult with the Attorney Gen7 eral or others within the Department about the conduct 

8 of the duties and responsibilities of the Special Counsel. 

9 ‘‘§ 599K–7. Conduct and accountability generally 

10 ‘‘(a) IN GENERAL.—A Special Counsel appointed 

11 under this chapter shall— 

12 ‘‘(1) comply with the rules, regulations, proce13 dures, practices, and policies of the Department; and 

14 ‘‘(2) consult with appropriate offices within the 

15 Department for guidance with respect to established 

16 practices, policies, and procedures of the Depart17 ment, including ethics and security regulations and 

18 procedures. 

19 ‘‘(b) EXTRAORDINARY CIRCUMSTANCES.—If a Spe20 cial Counsel appointed under this chapter determines that 

21 the extraordinary circumstances of any particular decision 

22 would render compliance with required review and ap23 proval procedures by the designated departmental compo24 nent inappropriate, the Special Counsel may consult di25 rectly with the Attorney General. 


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1 ‘‘(c) LIMITATION ON SUPERVISION.— 

2 ‘‘(1) IN GENERAL.—A Special Counsel ap3 pointed under this chapter shall not be subject to 

4 the day-to-day supervision of any official of the De5 partment, except that the Attorney General may re6 quest that the Special Counsel provide an expla7 nation for any investigative or prosecutorial step, 

8 and may after review conclude that the action is so 

9 inappropriate or unwarranted under established 

10 practices of the Department that it should not be 

11 pursued. 

12 ‘‘(2) REVIEW.—In conducting a review de13 scribed in paragraph (1), the Attorney General shall 

14 give great weight to the views of the Special Coun15 sel. If the Attorney General concludes that a pro16 posed action by a Special Counsel should not be pur17 sued, the Attorney General shall notify Congress in 

18 accordance with section 599K–10(a)(3). 

19 ‘‘(d) DISCIPLINARY ACTION FOR MISCONDUCT.—A 

20 Special Counsel appointed under this chapter, and any 

21 staff of the Special Counsel, shall be subject to disciplinary 

22 action for misconduct and breach of ethical duties under 

23 the same standards and to the same extent as are other 

24 employees of the Department. Inquiries into such matters 


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1 shall be handled through the appropriate office of the De2 partment upon the approval of the Attorney General. 

3 ‘‘§ 599K–8. Limitation on removal of Special Counsel 

4 and certain other officials 

5 ‘‘(a) IN GENERAL.—A Special Counsel appointed 

6 under this chapter, or any other official appointed by the 

7 Attorney General who exercises a similar degree of inde8 pendence from the normal chain of command of the De9 partment, may be removed from office only by the per10 sonal action of an Attorney General who has been con11 firmed to that position by the Senate, or the most senior 

12 Senate-confirmed officer of the Department listed in sec13 tion 508 who is not recused from the matter. 

14 ‘‘(b) REMOVAL FOR CAUSE.—A Special Counsel or 

15 other appointed official described in subsection (a) may 

16 be removed only for misconduct, dereliction of duty, inca17 pacity, conflict of interest, or other good cause, including 

18 violation of policies of the Department. 

19 ‘‘(c) NOTICE OF REMOVAL.— 

20 ‘‘(1) IN GENERAL.—The Attorney General or 

21 other Department official described in subsection 

22 (a), as the case may be, shall provide written notice 

23 to the Special Counsel or other appointed official de24 scribed in subsection (a) of the specific reason or 

25 reasons for the removal. 


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1 ‘‘(2) EFFECTIVE DATE OF REMOVAL.—Except 

2 as provided in subsection (e), removal under this 

3 section shall become effective on the date that is 10 

4 days after the date on which the written notice was 

5 provided under paragraph (1). 

6 ‘‘(d) TIMING.—Not later than 10 days after the date 

7 on which written notice was provided under subsection 

8 (c)(1), the Special Counsel or other appointed official de9 scribed in subsection (a), as the case may be, may file 

10 an action in the United States District Court for the Dis11 trict of Columbia challenging the removal in accordance 

12 with subsection (e). 

13 ‘‘(e) REVIEW.— 

14 ‘‘(1) IN GENERAL.—An individual that received 

15 written notice under subsection (c)(1) may file an 

16 action in accordance with paragraph (2) that the re17 moval was in violation of this chapter. 

18 ‘‘(2) REQUIREMENTS.—Any action filed under 

19 this subsection shall be heard and determined by a 

20 court of 3 judges not later than 14 days after the 

21 date on which the action is filed in accordance with 

22 the provisions of section 2284, and an appeal of any 

23 final decision shall lie to the Supreme Court. 

24 ‘‘(3) RELIEF.—If a court determines that the 

25 removal of the individual who filed an action under 


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1 this subsection violates this chapter, the removal 

2 shall not take effect. The court may also provide 

3 other appropriate relief. 

4 ‘‘(4) STATUS DURING PROCEEDINGS.— 

5 ‘‘(A) IN GENERAL.—At the request of the 

6 individual who filed an action under this sub7 section, the court shall determine whether the 

8 individual shall remain in office during the 

9 pendency of the action described in paragraph 

10 (2). If an individual makes such a request, the 

11 court shall order that the effective date of the 

12 removal shall be stayed until the court rules on 

13 the request. 

14 ‘‘(B) PRESERVATION OF MATERIALS.— 

15 During the pendency of an action filed under 

16 this subsection, the personnel, documents, and 

17 materials of the Special Counsel or other ap18 pointed official described in subsection (a) shall 

19 be preserved. 

20 ‘‘(C) LIMITATION.—During the pendency 

21 of an action filed under this subsection, a re22 placement for the Special Counsel or other ap23 pointed official described in subsection (a) who 

24 is challenging the removal shall not be des25 ignated. 


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1 ‘‘§ 599K–9. Notification and reports by the Special 

2 Counsel 

3 ‘‘(a) BUDGET.— 

4 ‘‘(1) IN GENERAL.—A Special Counsel ap5 pointed under this chapter shall be provided all ap6 propriate resources by the Department. 

7 ‘‘(2) PROPOSED BUDGET.—Not later than 60 

8 days after the date on which a Special Counsel is 

9 appointed under this chapter, the Special Counsel 

10 shall develop a proposed budget for the current fis11 cal year with the assistance of the Justice Manage12 ment Division for review and approval by the Attor13 ney General. 

14 ‘‘(3) ESTABLISHMENT OF BUDGET.—Based on 

15 a proposal developed under paragraph (2), the At16 torney General shall establish a budget for the oper17 ations of the Special Counsel, which shall include a 

18 request for assignment of personnel, with a descrip19 tion of the qualifications needed. 

20 ‘‘(4) ADDITIONAL BUDGET REQUESTS.—After a 

21 budget has been established under paragraph (3), 

22 the Special Counsel shall, not later than 90 days be23 fore the beginning of each fiscal year, report to the 

24 Attorney General the status of the investigation, and 

25 provide a budget request for the following fiscal 

26 year. The Attorney General shall determine whether 


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1 the investigation should continue and, if so, establish 

2 the budget for the next fiscal year. 

3 ‘‘(b) NOTIFICATION OF SIGNIFICANT EVENTS.—A 

4 Special Counsel appointed under this chapter shall notify 

5 the Attorney General of events in the course of the inves6 tigation by the Special Counsel in conformity with the 

7 guidelines of the Department with respect to Urgent Re8 ports. 

9 ‘‘(c) CLOSING DOCUMENTATION.— 

10 ‘‘(1) IN GENERAL.—At the conclusion of the 

11 work of a Special Counsel appointed under this 

12 chapter, the Special Counsel shall submit to the At13 torney General, the Chairman and Ranking Minority 

14 Member of the Committee on the Judiciary of the 

15 Senate, and the Chairman and Ranking Minority 

16 Member of the Committee on the Judiciary of the 

17 House of Representatives a report detailing the fac18 tual findings of the investigation and explaining the 

19 prosecution or declination decisions reached by the 

20 Special Counsel. If the Attorney General granted or 

21 denied a request from the Special Counsel to change 

22 the Special Counsel’s jurisdiction under section 

23 599K–4(b), that information shall be included. 

24 ‘‘(2) INFORMATION REQUIRED.—The report 

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1 mation regarding significant prosecutorial decisions 

2 and significant expenditures by the Office of the 

3 Special Counsel. 

4 ‘‘§ 599K–10. Notification and reports by the Attorney 

5 General 

6 ‘‘(a) IN GENERAL.—If the Attorney General appoints 

7 a Special Counsel under this chapter, the Attorney Gen8 eral shall submit to the Chairman and Ranking Minority 

9 Member of the Committee on the Judiciary of the Senate 

10 and the Chairman and Ranking Minority Member of the 

11 Committee on the Judiciary of the House of Representa12 tives a written notification, with a report explaining— 

13 ‘‘(1) the appointment of the Special Counsel; 

14 ‘‘(2) the intent of the Attorney General to re15 move the Special Counsel; and 

16 ‘‘(3) after the conclusion of the investigation of 

17 the Special Counsel, to the extent consistent with 

18 applicable law, any instance in which the Attorney 

19 General concluded that a proposed action by a Spe20 cial Counsel was so inappropriate or unwarranted 

21 under established Departmental practices that it 

22 should not be pursued. 

23 ‘‘(b) NOTICE OF APPOINTMENT.—A notification and 

24 report under subsection (a)(1) shall— 


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1 ‘‘(1) be submitted on the date on which the 

2 Special Counsel is appointed; and 

3 ‘‘(2) include— 

4 ‘‘(A) the factual basis necessitating the ap5 pointment of the Special Counsel, including a 

6 description of any effort made before appointing 

7 the Special Counsel to mitigate potential con8 flicts of interests of relevant individuals or with9 in relevant components; and 

10 ‘‘(B) a specific factual statement of the 

11 matter to be investigated. 

12 ‘‘(c) NOTICE OF REMOVAL.—A notification and re13 port under subsection (a)(2) shall— 

14 ‘‘(1) be submitted not later than 30 days before 

15 the date on which notice is provided to the Special 

16 Counsel under section 599K–8(c)(1); and 

17 ‘‘(2) include the reasons for the removal. 

18 ‘‘§ 599K–11. No creation of rights 

19 ‘‘Except as provided in section 599K–8, this chapter 

20 shall not be construed to create any rights, substantive 

21 or procedural, enforceable at law or equity, by any person 

22 or entity, in any matter, civil, criminal, or administra23 tive.’’. 

24 (b) TABLE OF CHAPTERS.—The table of chapters for 

25 part II of title 28, United States Code, is amended by 


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1 inserting after the item relating to chapter 40A the fol2 lowing: 

‘‘40B. Special Counsel ..................................................................... 599K–1’’. 

3 (c) APPLICATION TO EXISTING SPECIAL COUNSEL.— 

4 (1) IN GENERAL.—For purposes of applying 

5 chapter 40B of title 28, United States Code, as 

6 added by this Act, to a Special Counsel who is sub7 ject to any provision of part 600 of title 28, Code 

8 of Federal Regulations, and who is serving as a Spe9 cial Counsel on the date of enactment of this Act— 

10 (A) in addition to the authority under 

11 which the Special Counsel was originally ap12 pointed, the Special Counsel shall be deemed to 

13 be a Special Counsel appointed under such 

14 chapter 40B; and 

15 (B) such chapter 40B shall apply for pur16 poses of any action described in such chapter 

17 40B by or with respect to the Special Counsel 

18 taken on after the date of enactment of this Act 

19 (including removing the Special Counsel from 

20 office). 

21 (2) REMOVAL BEFORE ENACTMENT.— 

22 (A) IN GENERAL.—Section 599K–8 of title 

23 28, United States Code, as added by this Act, 

24 shall apply with respect to an individual who 

25 was— 


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1 (i) appointed as a Special Counsel 

2 after January 1, 2017; 

3 (ii) subject to any provision of part 

4 600 of title 28, Code of Federal Regula5 tions; and 

6 (iii) removed from office before the 

7 date of enactment of this Act. 

8 (B) IMPLEMENTATION.—If there is a Spe9 cial Counsel who is described in subparagraph 

10 (A)— 

11 (i) not later than 10 days after the 

12 date of enactment of this Act, the Attorney 

13 General shall provide written notice relat14 ing to the removal— 

15 (I) to the Special Counsel, that 

16 provides the information required 

17 under section 599K–8(c)(1) of title 

18 28, United States Code, as added by 

19 this Act; and 

20 (II) to the Chairman and Rank21 ing Minority Member of the Com22 mittee on the Judiciary of the Senate 

23 and the Chairman and Ranking Mi24 nority Member of the Committee on 

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1 resentatives, that provides the infor2 mation required under section 599K– 

3 10(c)(2) of such title; 

4 (ii) not later than 10 days after the 

5 date on which written notice is provided 

6 under clause (i)(I), the Special Counsel 

7 may file an action challenging the removal 

8 in accordance with section 599K–8(e) of 

9 such title; 

10 (iii) in an action filed under clause 

11 (ii), the court shall determine whether the 

12 removal of the Special Counsel meets the 

13 requirements for removal under sub14 sections (a), (b), and (c)(1) of section 

15 599K–8 of such title; and 

16 (iv) if a court determines that the re17 moval of the individual who filed an action 

18 under clause (ii) violates a requirement de19 scribed in clause (iii), the court may order 

20 reinstatement or provide other appropriate 

21 relief. 

22 (d) SEVERABILITY.—If any provision of this Act, or 

23 an amendment made by this Act, or the application of 

24 such provision or amendment to any person or cir25 cumstance is held to be invalid or unconstitutional, the 


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1 remainder of this Act, and the amendments made by this 

2 Act, and the application of such provisions and amend3 ments to any person or circumstance shall remain and 

4 shall not be affected thereby. 

Æ 


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