I

103D CONGRESS

1ST SESSION H. R. 3545

To reauthorize the independent counsel statute, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

NOVEMBER 19, 1993

Mr. HYDE (for himself, Mr. MICHEL, Mr. GINGRICH, Mr. ARMEY, Mr. HUNTER, Mr. MCCOLLUM, Mr. DELAY, Mr. PAXON, Mr. FISH, Mr. MOORHEAD, Mr. GEKAS, and Mr. LIVINGSTON) introduced the following bill;

which was referred to the Committee on the Judiciary

A BILL

To reauthorize the independent counsel statute, 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 ‘‘Independent Counsel

5 Accountability and Reform Act of 1993’’.

6 SEC. 2. EXTENSION.

7 Section 599 of title 28, United States Code, is

8 amended by striking ‘‘Reauthorization Act of 1987’’ and

9 inserting ‘‘Act of 1993’’.
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1 SEC. 3. APPLICATION TO MEMBERS OF CONGRESS.

2 Section 591(b) of title 28, United States Code, is

3 amended—

4 (1) by striking ‘‘and’’ at the end of paragraph

5 (7);

6 (2) by striking the period at the end of para7 graph (8) and inserting ‘‘; and’’; and

8 (3) by adding at the end the following:

9 ‘‘(9) any Senator, or any Representative in, or

10 Delegate or Resident Commissioner to, the Con11 gress, or any person who has served as a Senator or

12 such a Representative, Delegate, or Resident Com13 missioner within the 2-year period before the receipt

14 of the information under subsection (a) with respect

15 to conduct that occurred while such person was a

16 Senator or such a Representative, Delegate, or Resi17 dent Commissioner.’’.

18 SEC. 4. BASIS FOR PRELIMINARY INVESTIGATION.

19 (a) INITIAL RECEIPT OF INFORMATION.—Section

20 591 of title 28, United States Code, is amended—

21 (1) in subsection (a)—

22 (A) by striking ‘‘information’’ and insert23 ing ‘‘specific information from a credible source

24 that is’’; and

25 (B) by striking ‘‘may have’’ and inserting

26 ‘‘has’’;
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1 (2) in subsection (c)(1)—

2 (A) by striking ‘‘information’’ and insert3 ing ‘‘specific information from a credible source

4 that is’’; and

5 (B) by striking ‘‘may have’’ and inserting

6 ‘‘has’’; and

7 (3) by amending subsection (d) to read as fol8 lows:

9 ‘‘(d) TIME PERIOD FOR DETERMINING NEED FOR

10 PRELIMINARY INVESTIGATION.—The Attorney General

11 shall determine, under subsection (a) or (c) (or section

12 592(c)(2)), whether grounds to investigate exist not later

13 than 15 days after the information is first received. If

14 within that 15-day period the Attorney General deter15 mines that there is insufficient evidence of a violation of

16 Federal criminal law referred to in subsection (a), then

17 the Attorney General shall close the matter. If within that

18 15-day period the Attorney General determines there is

19 sufficient evidence of such a violation, the Attorney Gen20 eral shall, upon making that determination, commence a

21 preliminary investigation with respect to that information.

22 If the Attorney General is unable to determine, within that

23 15-day period, whether there is sufficient evidence of such

24 a violation, the Attorney General shall, at the end of that
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1 15-day period, commence a preliminary investigation with

2 respect to that information.’’.

3 (b) RECEIPT OF ADDITIONAL INFORMATION.—Sec4 tion 592(c)(2) of title 28, United States Code, is amended

5 by striking ‘‘information’’ and inserting ‘‘specific informa6 tion from a credible source that is’’.

7 SEC. 5. SUBPOENA POWER.

8 Section 592(a)(2) of title 28, United States Code, is

9 amended by striking ‘‘grant immunity, or issue subpoe10 nas’’ and inserting ‘‘or grant immunity, but may issue

11 subpoenas duces tecum’’.

12 SEC. 6. PROSECUTORIAL JURISDICTION OF INDEPENDENT

13 COUNSEL.

14 (a) PROSECUTORIAL JURISDICTION.—Section 593(b)

15 of title 28, United States Code, is amended—

16 (1) in paragraph (1)—

17 (A) by striking ‘‘define’’ and inserting

18 ‘‘, with specificity, define’’; and

19 (B) by adding at the end the following:

20 ‘‘Such jurisdiction shall be limited to the al21 leged violations of criminal law with respect to

22 which the Attorney General has requested the

23 appointment of the independent counsel, and

24 matters directly related to such criminal viola25 tions.’’; and
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1 (2) by amending paragraph (3) to read as

2 follows:

3 ‘‘(3) SCOPE OF PROSECUTORIAL JURISDIC4 TION.—In defining the independent counsel’s pros5 ecutorial jurisdiction, the division of the court shall

6 assure that the independent counsel has adequate

7 authority to fully investigate and prosecute the al8 leged violations of criminal law with respect to which

9 the Attorney General has requested the appointment

10 of the independent counsel, and matters directly re11 lated to such criminal violations, including perjury,

12 obstruction of justice, destruction of evidence, and

13 intimidation of witnesses.’’.

14 (b) CONFORMING AMENDMENT.—Section 592(d) of

15 title 28, United States Code, is amended by striking ‘‘sub16 ject matter and all matters related to that subject matter’’

17 and inserting ‘‘the alleged violations of criminal law with

18 respect to which the application is made, and matters di19 rectly related to such criminal violations’’.

20 SEC. 7. USE OF STATE AND LOCAL PROSECUTORS; STAFF

21 OF INDEPENDENT COUNSEL.

22 (a) PROSECUTORS AS INDEPENDENT COUNSEL.—

23 Section 593(b)(1) of title 28, United States Code, as

24 amended by section 7 of this Act, is further amended by

25 adding at the end the following: ‘‘The division of the court
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1 should strongly consider exercising the authority of section

2 3372 of title 5 so that it may appoint as independent

3 counsel prosecutors from State or local governments, and

4 the division of the court may exercise the authorities of

5 such section 3372 for such purpose to the same extent

6 as the head of a Federal agency.’’.

7 (b) STAFF OF INDEPENDENT COUNSEL.—Section

8 594(c) of title 28, United States Code, is amended by

9 striking the last sentence and inserting the following: ‘‘Not

10 more than 2 such employees may be compensated at a rate

11 not to exceed the rate of basic pay payable for level V

12 of the Executive schedule under section 5316 of title 5,

13 and all other such employees shall be compensated at rates

14 not to exceed the maximum rate of basic pay payable for

15 GS–15 of the General Schedule under section 5332 of title

16 5. The independent counsel should, to the greatest extent

17 possible, use personnel of the Department of Justice, on

18 a reimbursable basis, in lieu of appointing employees, to

19 carry out the duties of such independent counsel. The

20 independent counsel should also strongly consider exercis21 ing the authority of section 3372 of title 5 so that he or

22 she may appoint as employees under this subsection pros23 ecutors of State or local governments. In order to carry

24 out the preceding sentence, each independent counsel
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1 shall, for purposes of such section 3372, be considered to

2 be the head of a Federal agency.’’.

3 SEC. 8. ATTORNEYS’ FEES.

4 Section 593(f)(1) of title 28, United States Code, is

5 amended in the first sentence—

6 (1) by striking ‘‘the court may’’ and inserting

7 ‘‘the court shall’’;

8 (2) by inserting after ‘‘pursuant to that inves9 tigation,’’ the following: ‘‘if such individual is acquit10 ted of all charges, or no conviction is obtained

11 against such individual, at a trial brought pursuant

12 to that investigation, or if the conviction of such in13 dividual at such a trial is overturned on appeal,’’;

14 and

15 (3) by inserting ‘‘, trial, and appeal (if any)’’

16 after ‘‘during that investigation’’.

17 SEC. 9. TREATMENT OF CLASSIFIED INFORMATION.

18 Section 594(a) of title 28, United States Code, is

19 amended by adding at the end the following:

20 ‘‘An independent counsel appointed under this chapter

21 who gains access to classified information shall follow all

22 procedures established by the United States Government

23 regarding the maintenance, use, and disclosure of such in24 formation. The failure to follow such procedures shall be

25 grounds for removal for good cause under section
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1 596(a)(1), in addition to any penalty provided in section

2 798 of title 18 or any other law that may apply.’’.

3 SEC. 10. INDEPENDENT COUNSEL PER DIEM EXPENSES.

4 Section 594(b) of title 28, United States Code, is

5 amended to read as follows:

6 ‘‘(b) COMPENSATION.—

7 ‘‘(1) IN GENERAL.—Except as provided in para8 graph (2), an independent counsel appointed under

9 this chapter shall receive compensation at the per

10 diem rate equal to the annual rate of basic pay pay11 able for level IV of the Executive Schedule under

12 section 5315 of title 5.

13 ‘‘(2) TRAVEL AND LODGING IN WASHINGTON.—

14 An independent counsel and persons appointed

15 under subsection (c) shall not be entitled to the pay16 ment of travel and subsistence expenses under sub17 chapter 1 of chapter 57 of title 5, with respect to

18 duties performed in the District of Columbia after 1

19 year of service under this chapter.’’.

20 SEC. 11. AUTHORITIES AND DUTIES OF INDEPENDENT

21 COUNSEL.

22 (a) ADMINISTRATIVE SUPPORT.—Section 594 of title

23 28, United States Code, is amended by adding at the end

24 the following new subsection:

25 ‘‘(l) ADMINISTRATIVE SERVICES.—
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1 ‘‘(1) ADMINISTRATIVE SUPPORT.—The Admin2 istrator of General Services shall provide administra3 tive support to each independent counsel.

4 ‘‘(2) OFFICE SPACE.—The Administrator of

5 General Services shall promptly provide appropriate

6 office space for each independent counsel. Such of7 fice space shall be within a Federal building unless

8 the Administrator of General Services determines

9 that other arrangements would cost less.’’.

10 (b) COMPLIANCE WITH POLICIES OF THE DEPART11 MENT OF JUSTICE.—Section 594(f) of title 28, United

12 States Code, is amended—

13 (1) by striking ‘‘, except where not possible,’’

14 and inserting ‘‘at all times’’; and

15 (2) by striking ‘‘enforcement of the criminal

16 laws’’ and inserting ‘‘the enforcement of criminal

17 laws and the release of information relating to crimi18 nal proceedings’’.

19 (c) LIMITATION ON EXPENDITURES.—Section 594 of

20 title 28, United States Code, is amended by adding at the

21 end the following:

22 ‘‘(m) LIMITATION ON EXPENDITURES.—No funds

23 may be expended for the operation of any office of inde24 pendent counsel after the end of the 2-year period after

25 its establishment, except to the extent that an appropria-
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1 tions Act enacted after such establishment specifically

2 makes available funds for such office for use after the end

3 of that 2-year period.’’.

4 SEC. 12. PERIODIC REPORTS.

5 Section 595(a)(2) of title 28, United States Code, is

6 amended by striking ‘‘such statements’’ and all that fol7 lows through ‘‘appropriate’’ and inserting ‘‘annually a re8 port on the activities of such independent counsel, includ9 ing a description of the progress of any investigation or

10 prosecution conducted by such independent counsel. Such

11 report need not contain information which would—

12 ‘‘(A) compromise or undermine the con13 fidentiality of an ongoing investigation under

14 this chapter,

15 ‘‘(B) adversely affect the outcome of any

16 prosecution under this chapter, or

17 ‘‘(C) violate the personal privacy of any in18 dividual,

19 but shall provide information adequate to justify the

20 expenditures which the office of that independent

21 counsel has made, and indicate in general terms the

22 state of the work of the independent counsel’’.
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1 SEC. 13. REMOVAL, TERMINATION, AND PERIODIC RE2 APPOINTMENT OF INDEPENDENT COUNSEL.

3 (a) GROUNDS FOR REMOVAL.—Section 596(a)(1) of

4 title 28, United States Code, is amended by adding at the

5 end the following: ‘‘Failure of the independent counsel to

6 comply with the established policies of the Department of

7 Justice as required by section 594(f) or to comply with

8 section 594(j) may be grounds for removing that inde9 pendent counsel from office for good cause under this sub10 section.’’.

11 (b) TERMINATION.—Section 596(b)(2) of title 28,

12 United States Code, is amended to read as follows:

13 ‘‘(2) TERMINATION BY DIVISION OF THE

14 COURT.—The division of the court may terminate an

15 office of independent counsel at any time—

16 ‘‘(A) on its own motion,

17 ‘‘(B) upon the request of the Attorney

18 General, or

19 ‘‘(C) upon the petition of the subject of an

20 investigation conducted by such independent

21 counsel, if the petition is made more than 2

22 years after the appointment of such independ23 ent counsel,

24 on the ground that the investigation conducted by

25 the independent counsel has been completed or sub26 stantially completed and that it would be appro-
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1 priate for the Department of Justice to complete

2 such investigation or to conduct any prosecution

3 brought pursuant to such investigation, or on the

4 ground that continuation of the investigation or

5 prosecution conducted by the independent counsel is

6 not in the public interest.’’.

7 (c) PERIODIC REAPPOINTMENT.—Section 596 of title

8 28, United States Code, is amended by adding at the end

9 the following:

10 ‘‘(d) PERIODIC REAPPOINTMENT OF INDEPENDENT

11 COUNSEL.—If an office of independent counsel has not

12 terminated before—

13 ‘‘(1) the date that is 2 years after the original

14 appointment to that office, or

15 ‘‘(2) the end of each succeeding 2-year period,

16 such counsel shall apply to the division of the court for

17 reappointment. The court shall first determine whether

18 the office of that independent counsel should be termi19 nated under subsection (b)(2). If the court determines

20 that such office will not be terminated under such sub21 section, the court shall reappoint the applicant if the court

22 determines that such applicant remains the appropriate

23 person to carry out the duties of the office. If not, the

24 court shall appoint some other person whom it considers

25 qualified under the standards set forth in section 593 of
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1 this title. If the court has not taken the actions required

2 by this subsection within 90 days after the end of the ap3 plicable 2-year period, then that office of independent

4 counsel shall terminate at the end of that 90-day period.’’.

5 SEC. 14. JOB PROTECTIONS FOR INDIVIDUALS UNDER IN6 VESTIGATION.

7 (a) IN GENERAL.—Section 597 of title 28, United

8 States Code, is amended—

9 (1) by amending the section caption to read as

10 follows:

11 ‘‘§ 597. Relationship with Department of Justice; job

12 protection for individuals under inves13 tigation’’; and

14 (2) by adding at the end the following:

15 ‘‘(c) JOB PROTECTION FOR INDIVIDUALS UNDER IN16 VESTIGATION.—

17 ‘‘(1) PROHIBITED PERSONNEL PRACTICE.—It

18 shall be a prohibited personnel practice for an em19 ployee of the United States Government who has au20 thority to take, direct others to take, recommend, or

21 approve any personnel action (as defined in section

22 2302(a)(2)(A) of title 5) with respect to an individ23 ual described in paragraph (2) who is the subject of

24 an investigation or prosecution under this chapter,

25 to take or fail to take, or threaten to take or fail to
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1 take, such a personnel action with respect to such

2 individual, on account of such investigation or pros3 ecution.

4 ‘‘(2) APPLICABILITY.—The individuals referred

5 to in paragraph (1) are individuals other than—

6 ‘‘(A) any person described in section

7 591(a); and

8 ‘‘(B) any employee of the Federal Govern9 ment whose position is excepted from the com10 petitive service on the basis of its confidential,

11 policy-determining, policy-making, or policy-ad12 vocating character.

13 ‘‘(3) EXEMPTION.—Paragraph (1) does not

14 apply in the case of an individual who is convicted

15 of a criminal offense pursuant to an investigation or

16 prosecution described in paragraph (1), unless such

17 conviction is overturned on appeal.

18 ‘‘(4) REMEDIES.—An individual with respect to

19 whom a prohibited personnel practice applies under

20 paragraph (1) may seek corrective action from the

21 Merit Systems Protection Board to the same extent

22 as an employee may seek corrective action under sec23 tion 1221 of title 5 (including subsection (h) of such

24 section), except that, for purposes of such section,

25 any reference to section 2302(b)(8) of title 5 shall
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1 be deemed to refer to paragraph (1) of this sub2 section, and any reference to a disclosure under such

3 section 2302(b)(8) shall be deemed to refer to an in4 vestigation or prosecution described in paragraph (1)

5 of this subsection.’’.

6 (b) CONFORMING AMENDMENT.—The item relating

7 to section 597 in the table of sections at the beginning

8 of chapter 40 of title 28, United States Code, is amended

9 to read as follows:

‘‘597. Relationship with Department of Justice; job protection for individuals

under investigation.’’.

10 SEC. 15. EFFECT OF TERMINATION OF CHAPTER.

11 Section 599 of title 28, United States Code, is

12 amended by inserting ‘‘, or until 120 days have elapsed,

13 whichever is earlier’’ after ‘‘completed’’.

14 SEC. 16. GAO REPORT.

15 The Comptroller General of the United States shall

16 submit to the Congress, not later than 1 year after the

17 date of the enactment of this Act, a report setting forth

18 recommendations of ways to improve controls on costs of

19 offices of independent counsel under chapter 40 of title

20 28, United States Code.

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