Calendar No. 145

103D CONGRESS

1ST SESSION S. 24

[Report No. 103–101]

A BILL

To reauthorize the independent counsel law for an

additional 5 years, and for other purposes.

JULY 20 (legislative day, JUNE 30), 1993

Reported with an amendment
II

Calendar No. 145

103D CONGRESS

1ST SESSION S. 24

[Report No. 103–101]

To reauthorize the independent counsel law for an additional 5 years, and

for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 21 (legislative day, JANUARY 5), 1993

Mr. LEVIN (for himself, Mr. COHEN, and Mr. DECONCINI) introduced the following bill; which was read twice and referred to the Committee on Governmental Affairs

JULY 20 (legislative day, JUNE 30), 1993

Reported by Mr. GLENN (for himself and Mr. ROTH), with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To reauthorize the independent counsel law for an additional

5 years, 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 Reauthorization Act of 1993’’.
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1 SEC. 2. FIVE-YEAR REAUTHORIZATION.

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

3 amended by striking ‘‘1987’’ and inserting ‘‘1993’’.

4 SEC. 3. ADDED CONTROLS.

5 (a) COST CONTROLS AND ADMINISTRATIVE SUP6 PORT.—Section 594 of title 28, United States Code, is

7 amended by adding at the end the following new sub8 section:

9 ‘‘(l) COST CONTROLS AND ADMINISTRATIVE SUP10 PORT.—

11 ‘‘(1) COST CONTROLS.—

12 ‘‘(A) IN GENERAL.—An independent coun13 sel shall—

14 ‘‘(i) conduct all activities with due re15 gard for expense;

16 ‘‘(ii) authorize only reasonable and

17 lawful expenditures; and

18 ‘‘(iii) promptly, upon taking office, as19 sign to a specific employee the duty of cer20 tifying that expenditures of the independ21 ent counsel are reasonable and made in ac22 cordance with law.

23 ‘‘(B) DEPARTMENT OF JUSTICE POLI24 CIES.—An independent counsel shall comply

25 with the established policies of the Department

26 of Justice respecting expenditures of funds, ex-
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1 cept to the extent that compliance would be in2 consistent with the purposes of this chapter.

3 ‘‘(2) ADMINISTRATIVE SUPPORT.—The Admin4 istrative Office of the United States Courts shall

5 provide administrative support and guidance to each

6 independent counsel. The Administrative Office shall

7 not disclose information related to an independent

8 counsel’s expenditures, personnel, or administrative

9 acts or arrangements without the authorization of

10 the independent counsel.

11 ‘‘(3) OFFICE SPACE.—The General Services Ad12 ministration, in consultation with the Administrative

13 Office, shall promptly provide appropriate office

14 space for each independent counsel. Such office

15 space shall be within a Federal building unless the

16 General Services Administration determines that

17 other arrangements would cost less.’’.

18 (b) INDEPENDENT COUNSEL PER DIEM EX19 PENSES.— Section 594(b) of title 28, United States Code,

20 is amended—

21 (1) by striking ‘‘An independent counsel’’ and

22 inserting ‘‘(1) IN GENERAL.—An independent coun23 sel’’; and

24 (2) by adding at the end the following new

25 paragraphs:
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1 ‘‘(2) TRAVEL EXPENSES.—Except as provided

2 in paragraph (3), an independent counsel and per3 sons appointed under subsection (c) shall be entitled

4 to the payment of travel expenses as provided by

5 subchapter 1 of chapter 57 of title 5, United States

6 Code, including travel expenses and per diem in lieu

7 of subsistence in accordance with section 5703 of

8 title 5.

9 ‘‘(3) TRAVEL TO PRIMARY OFFICE.—An inde10 pendent counsel and persons appointed under sub11 section (c) shall not be entitled to the payment of

12 travel and subsistence expenses under subchapter 1

13 of chapter 57 of title 5, United States Code, with re14 spect to duties performed in the city in which the

15 primary office of that independent counsel or person

16 is located after 1 year of service under this chapter

17 unless the employee assigned duties under sub18 section (l)(1)(A)(iii) certifies that the payment is in

19 the public interest to carry out the purposes of this

20 chapter.’’.

21 (c) INDEPENDENT COUNSEL EMPLOYEE PAY COM22 PARABILITY.—Section 594(c) of title 28, United States

23 Code, is amended by striking the last sentence and insert24 ing: ‘‘Such employees shall be compensated at levels not

25 to exceed those payable for comparable positions in the
5

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1 Office of United States Attorney for the District of Colum2 bia under sections 548 and 550, but in no event shall any

3 such employee be compensated at a rate greater than the

4 rate of basic pay payable for level IV of the Executive

5 Schedule under section 5315 of title 5.’’.

6 (d) ETHICS ENFORCEMENT.—Section 594(j) of title

7 28, United States Code, is amended by adding at the end

8 the following new paragraph:

9 ‘‘(5) ENFORCEMENT.—The Department of Jus10 tice and Office of Government Ethics have authority

11 to enforce compliance with this subsection.’’.

12 (e) COMPLIANCE WITH POLICIES OF THE DEPART13 MENT OF JUSTICE.—Section 594(f) is amended by strik14 ing ‘‘shall, except where not possible, comply’’ and insert15 ing ‘‘shall, except to the extent that to do so would be

16 inconsistent with the purposes of this chapter, comply’’.

17 (f) PUBLICATION OF REPORTS.—Section 594(h) of

18 title 28, United States Code, is amended—

19 (1) by adding at the end the following new

20 paragraph:

21 ‘‘(3) PUBLICATION OF REPORTS.—At the re22 quest of an independent counsel, the Public Printer

23 shall cause to be printed any report previously re24 leased to the public under paragraph (2). The inde25 pendent counsel shall certify the number of copies
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1 necessary for the public service, and the Public

2 Printer shall place the cost of the required number

3 to the debit of such independent counsel. Additional

4 copies shall be made available to the public through

5 the depository library program and Superintendent

6 of Documents sales program pursuant to sections

7 1702 and 1903 of title 44.’’; and

8 (2) in the first sentence of paragraph (2), by

9 striking ‘‘appropriate’’ the second place it appears

10 and inserting ‘‘in the public interest, consistent with

11 maximizing public disclosure, ensuring a full expla12 nation of independent counsel activities and decision13 making, and facilitating the release of information

14 and materials which the independent counsel has de15 termined should be disclosed’’.

16 (g) ANNUAL REPORTS TO CONGRESS.—Section

17 595(a)(2) of title 28, United States Code, is amended by

18 striking ‘‘such statements’’ and all that follows through

19 ‘‘appropriate’’ and inserting ‘‘annually a report on the ac20 tivities of the independent counsel, including a description

21 of the progress of any investigation or prosecution con22 ducted by the independent counsel. Such report may omit

23 any matter that in the judgment of the independent coun24 sel should be kept confidential, but shall provide informa-
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1 tion adequate to justify the expenditures that the office

2 of the independent counsel has made’’.

3 (h) PERIODIC REAPPOINTMENT OF INDEPENDENT

4 COUNSEL.—Section 596(b)(2) of title 28, United States

5 Code, is amended by adding at the end the following new

6 sentence: ‘‘If the Attorney General has not made a request

7 under this paragraph, the division of the court shall deter8 mine on its own motion whether termination is appro9 priate under this paragraph no later than 3 years after

10 the appointment of an independent counsel and at the end

11 of each succeeding 3-year period.’’.

12 (i) AUDITS BY THE COMPTROLLER GENERAL.—Sec13 tion 596(c) of title 28, United States Code, is amended

14 to read as follows:

15 ‘‘(c) AUDITS.—By December 31 of each year, an

16 independent counsel shall prepare a statement of expendi17 tures for the fiscal year that ended on the immediately

18 preceding September 30. An independent counsel whose

19 office is terminated prior to the end of the fiscal year shall

20 prepare a statement of expenditures by the date that is

21 90 days after the date on which the office is terminated.

22 The Comptroller General shall audit each such statement

23 and report the results of each audit to the appropriate

24 committees of the Congress not later than March 31 of

25 the year following the submission of any such statement.’’.
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1 SEC. 4. MEMBERS OF CONGRESS.

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

3 amended—

4 (1) by redesignating paragraphs (1) and (2) as

5 subparagraphs (A) and (B), respectively;

6 (2) by designating the text as paragraph (1)

7 and inserting at the beginning of the text the follow8 ing: ‘‘(1) IN GENERAL.—’’; and

9 (3) by adding at the end the following new

10 paragraph:

11 ‘‘(2) MEMBERS OF CONGRESS.—When the At12 torney General determines that it would be in the

13 public interest, the Attorney General may conduct a

14 preliminary investigation in accordance with section

15 592 if the Attorney General receives information

16 sufficient to constitute grounds to investigate wheth17 er a Member of Congress may have violated any

18 Federal criminal law other than a violation classified

19 as a Class B or C misdemeanor or an infraction.’’.

20 SEC. 5. EFFECTIVE DATE.

21 The amendments made by this Act shall become ef22 fective on the date of enactment of this Act.

23 SECTION 1. SHORT TITLE.

24 This Act may be cited as the ‘‘Independent Counsel

25 Reauthorization Act of 1993’’.
9

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1 SEC. 2. FIVE-YEAR REAUTHORIZATION.

2 Section 599 of title 28, United States Code, is amended

3 by striking ‘‘1987’’ and inserting ‘‘1993’’.

4 SEC. 3. ADDED CONTROLS.

5 (a) COST CONTROLS AND ADMINISTRATIVE SUP6 PORT.—Section 594 of title 28, United States Code, is

7 amended by adding at the end the following new subsection:

8 ‘‘(l) COST CONTROLS AND ADMINISTRATIVE SUP9 PORT.—

10 ‘‘(1) COST CONTROLS.—

11 ‘‘(A) IN GENERAL.—An independent counsel

12 shall—

13 ‘‘(i) conduct all activities with due re14 gard for expense;

15 ‘‘(ii) authorize only reasonable and

16 lawful expenditures; and

17 ‘‘(iii) promptly, upon taking office, as18 sign to a specific employee the duty of cer19 tifying that expenditures of the independent

20 counsel are reasonable and made in accord21 ance with law.

22 ‘‘(B) DEPARTMENT OF JUSTICE POLICIES.—

23 An independent counsel shall comply with the es24 tablished policies of the Department of Justice

25 respecting expenditures of funds, except to the ex-
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1 tent that compliance would be inconsistent with

2 the purposes of this chapter.

3 ‘‘(2) ADMINISTRATIVE SUPPORT.—The Adminis4 trative Office of the United States Courts shall pro5 vide administrative support and guidance to each

6 independent counsel. The Administrative Office shall

7 not disclose information related to an independent

8 counsel’s expenditures, personnel, or administrative

9 acts or arrangements without the authorization of the

10 independent counsel.

11 ‘‘(3) OFFICE SPACE.—The General Services Ad12 ministration, in consultation with the Administrative

13 Office, shall promptly provide appropriate office

14 space for each independent counsel. Such office space

15 shall be within a Federal building unless the General

16 Services Administration determines that other ar17 rangements would cost less. Until such office space is

18 provided, the Administrative Office of the United

19 States Courts shall provide newly appointed inde20 pendent counsels immediately upon appointment with

21 appropriate, temporary office space, equipment, and

22 supplies.’’.

23 (b) INDEPENDENT COUNSEL PER DIEM EXPENSES.—

24 Section 594(b) of title 28, United States Code, is amend25 ed—
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1 (1) by striking ‘‘(b) COMPENSATION.—An’’ and

2 inserting the following:

3 ‘‘(b) COMPENSATION.—

4 ‘‘(1) IN GENERAL.—An’’; and

5 (2) by adding at the end the following new para6 graphs:

7 ‘‘(2) TRAVEL EXPENSES.—Except as provided in

8 paragraph (3), an independent counsel and persons

9 appointed under subsection (c) shall be entitled to the

10 payment of travel expenses as provided by subchapter

11 1 of chapter 57 of title 5, United States Code, includ12 ing travel expenses and per diem in lieu of subsist13 ence in accordance with section 5703 of title 5.

14 ‘‘(3) TRAVEL TO PRIMARY OFFICE.—An inde15 pendent counsel and persons appointed under sub16 section (c) shall not be entitled to the payment of

17 travel and subsistence expenses under subchapter 1 of

18 chapter 57 of title 5, United States Code, with respect

19 to duties performed in the city in which the primary

20 office of that independent counsel or person is located

21 after 1 year of service under this chapter unless the

22 employee assigned duties under subsection

23 (l)(1)(A)(iii) certifies that the payment is in the pub24 lic interest to carry out the purposes of this chapter.’’.
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1 (c) INDEPENDENT COUNSEL EMPLOYEE PAY COM2 PARABILITY.—Section 594(c) of title 28, United States

3 Code, is amended by striking the last sentence and insert4 ing: ‘‘Such employees shall be compensated at levels not to

5 exceed those payable for comparable positions in the Office

6 of United States Attorney for the District of Columbia

7 under sections 548 and 550, but in no event shall any such

8 employee be compensated at a rate greater than the rate

9 of basic pay payable for level IV of the Executive Schedule

10 under section 5315 of title 5.’’.

11 (d) ETHICS ENFORCEMENT.—Section 594(j) of title

12 28, United States Code, is amended by adding at the end

13 the following new paragraph:

14 ‘‘(5) ENFORCEMENT.—The Department of Jus15 tice and Office of Government Ethics have authority

16 to enforce compliance with this subsection.’’.

17 (e) COMPLIANCE WITH POLICIES OF THE DEPART18 MENT OF JUSTICE.—Section 594(f) of title 28, United

19 States Code, is amended by—

20 (1) striking ‘‘shall, except where not possible,

21 comply’’ and inserting ‘‘shall, except to the extent

22 that to do so would be inconsistent with the purposes

23 of this chapter, comply’’;

24 (2) adding at the end thereof the following: ‘‘To

25 determine these policies and policies under subsection
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1 (l)(1)(B), the independent counsel shall, to the extent

2 possible throughout his or her term of office, consult

3 with the Department of Justice.’’;

4 (3) striking ‘‘An independent’’ and inserting the

5 following:

6 ‘‘(1) IN GENERAL.—An independent’’; and

7 (4) adding at the end thereof the following new

8 paragraph:

9 ‘‘(2) NATIONAL SECURITY MATTERS.—An inde10 pendent counsel shall consult with the Department of

11 Justice with respect to national security matters and

12 shall comply with guidelines and procedures utilized

13 by the Department for the handling and use of classi14 fied material.’’.

15 (f) PUBLICATION OF REPORTS.—Section 594(h) of title

16 28, United States Code, is amended by adding at the end

17 the following new paragraph:

18 ‘‘(3) PUBLICATION OF REPORTS.—At the request

19 of an independent counsel, the Public Printer shall

20 cause to be printed any report previously released to

21 the public under paragraph (2). The independent

22 counsel shall certify the number of copies necessary

23 for the public service, and the Public Printer shall

24 place the cost of the required number to the debit of

25 such independent counsel. Additional copies shall be
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1 made available to the public through the depository

2 library program and Superintendent of Documents

3 sales program pursuant to sections 1702 and 1903 of

4 title 44.’’.

5 (g) ANNUAL REPORTS TO CONGRESS.—Section

6 595(a)(2) of title 28, United States Code, is amended by

7 striking ‘‘such statements’’ and all that follows through ‘‘ap8 propriate’’ and inserting ‘‘each quarter a report detailing

9 all monies expended and annually a report on the activities

10 of the independent counsel, including a description of the

11 progress of any investigation or prosecution conducted by

12 the independent counsel. Such report may omit any matter

13 that in the judgment of the independent counsel should be

14 kept confidential, but shall provide information adequate

15 to justify the expenditures that the office of the independent

16 counsel has made’’.

17 (h) PERIODIC REAPPOINTMENT OF INDEPENDENT

18 COUNSEL.—Section 596(b)(2) of title 28, United States

19 Code, is amended by adding at the end the following new

20 sentence: ‘‘If the Attorney General has not made a request

21 under this paragraph, the division of the court shall deter22 mine on its own motion whether termination is appropriate

23 under this paragraph no later than 3 years after the ap24 pointment of an independent counsel and at the end of each

25 succeeding 3-year period.’’.
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1 (i) AUDITS BY THE COMPTROLLER GENERAL.—Sec2 tion 596(c) of title 28, United States Code, is amended to

3 read as follows:

4 ‘‘(c) AUDITS.—By December 31 of each year, an inde5 pendent counsel shall prepare a statement of expenditures

6 for the fiscal year that ended on the immediately preceding

7 September 30. An independent counsel whose office is termi8 nated prior to the end of the fiscal year shall prepare a

9 statement of expenditures by the date that is 90 days after

10 the date on which the office is terminated. The Comptroller

11 General shall audit each such statement and report the re12 sults of each audit to the appropriate committees of the Con13 gress not later than March 31 of the year following the sub14 mission of any such statement.’’.

15 (j) THRESHOLD INQUIRY.—Section 591(d)(2) of title

16 28, United States Code, is amended by striking ‘‘15’’ each

17 time it appears and inserting ‘‘30’’.

18 (k) CRIMINAL INTENT.—Section 592(a)(2)(B) of title

19 28, United States Code, is amended to read as follows:

20 ‘‘(B) After conducting an examination under sec21 tion 591(d) or preliminary investigation under this

22 subsection, the Attorney General shall not decline to

23 proceed under this chapter based upon a lack of evi24 dence that the subject acted with the state of mind re25 quired for a violation of criminal law, unless the At-
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1 torney General determines that, based upon the infor2 mation obtained, there are no reasonable grounds to

3 believe that the subject acted with the state of mind

4 required for a violation of criminal law, and no rea5 sonable possibility that further investigation would

6 develop such evidence.’’.

7 (l) RECUSAL.—Section 591(e) of title 28, United

8 States Code, is amended to read as follows:

9 ‘‘(e) RECUSAL OF ATTORNEY GENERAL.—

10 ‘‘(1) WHEN RECUSAL IS REQUIRED.—(A) If in11 formation received under this chapter involves the At12 torney General, the next most senior official in the

13 Department of Justice who is not also recused shall

14 perform the duties assigned under this chapter to the

15 Attorney General.

16 ‘‘(B) If information received under this chapter

17 involves a person with whom the Attorney General

18 has a personal or financial relationship, the Attorney

19 General shall recuse himself or herself by designating

20 the next most senior official in the Department of

21 Justice who is not also recused to perform the duties

22 assigned under this chapter to the Attorney General.

23 ‘‘(2) REQUIREMENTS FOR RECUSAL DETERMINA24 TION.—Before personally making any other deter25 mination under this chapter with respect to a matter,
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1 the Attorney General shall determine under para2 graph (1)(B) whether recusal is necessary. The Attor3 ney General shall set forth this determination in writ4 ing, identify the facts considered by the Attorney Gen5 eral, and set forth the reasons for the recusal. The At6 torney General shall file this determination with any

7 notification or application submitted to the division

8 of the court under this chapter with respect to the

9 matter.’’.

10 (m) DISCLOSURE OF INFORMATION.—Section 592(e) of

11 title 28, United States Code, is amended by inserting after

12 ‘‘Except as otherwise provided in this chapter’’ the follow13 ing: ‘‘or as necessary for law enforcement purposes’’.

14 (n) CLARIFY AUTHORITY TO USE JUSTICE PERSON15 NEL.—Section 594(d)(1) of title 28, United States Code, is

16 amended by adding at the end thereof the following: ‘‘At

17 the request of an independent counsel, prosecutors, adminis18 trative personnel, and other employees of the Department

19 of Justice may be detailed to the staff of the independent

20 counsel.’’.

21 (o) ATTORNEY FEES.—Section 593(f) of title 28,

22 United States Code, is amended—

23 (1) in paragraph (1), by inserting before the last

24 sentence the following: ‘‘No award of attorneys’ fees

25 shall be made for any fees that would have been in-
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1 curred by the individual if the investigation had been

2 conducted by the Department of Justice.’’; and

3 (2) in paragraph (2), by striking everything

4 after ‘‘subsection,’’ and inserting the following: ‘‘ad5 dressing—

6 ‘‘(A) the sufficiency of the demonstration;

7 ‘‘(B) the need or justification for the under8 lying item;

9 ‘‘(C) whether the underlying item would

10 have been incurred but for the requirements of

11 this chapter; and

12 ‘‘(D) the reasonableness of the amount of

13 money requested.’’.

14 SEC. 4. MEMBERS OF CONGRESS.

15 (a) DISCRETIONARY AUTHORITY.—Section 591(c) of

16 title 28, United States Code, is amended to read as follows:

17 ‘‘(c) PRELIMINARY INVESTIGATION WITH RESPECT TO

18 OTHER PERSONS AND MATTERS.—

19 ‘‘(1) IN GENERAL.—When the Attorney General

20 determines that an investigation or prosecution of a

21 person or matter by the Department of Justice may

22 result in a personal, financial, or political conflict of

23 interest, the Attorney General may conduct a prelimi24 nary investigation of such person or matter in ac25 cordance with section 592 if the Attorney General re-
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1 ceives information sufficient to constitute grounds to

2 investigate whether there may have been a violation

3 of Federal criminal law other than a violation classi4 fied as a Class B or C misdemeanor or an infraction.

5 ‘‘(2) MEMBERS OF CONGRESS.—When the Attor6 ney General determines that it would be in the public

7 interest, the Attorney General may conduct a prelimi8 nary investigation in accordance with section 592 if

9 the Attorney General receives information sufficient to

10 constitute grounds to investigate whether a Member of

11 Congress may have violated any Federal criminal law

12 other than a violation classified as a Class B or C

13 misdemeanor or an infraction.’’.

14 (b) POSTEMPLOYMENT COVERAGE.—Section 591(b) of

15 title 28, United States Code, is amended by striking para16 graphs (6) and (7) and inserting the following:

17 ‘‘(6) any individual who held an office or posi18 tion described in paragraphs (1) through (5), for 1

19 year after leaving the office or position or until the

20 President under whom the individual served leaves of21 fice, whichever period expires first;

22 ‘‘(7) any individual who held an office or posi23 tion described in paragraphs (1) through (5) during

24 the incumbency of 1 President and who continued to

25 hold that office or position for not more than 90 days
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1 into the term of the next President, until the individ2 ual leaves such office or position; and’’.

3 SEC. 5. EFFECTIVE DATE.

4 The amendments made by this Act shall become effec5 tive on the date of enactment of this Act, except that the

6 compensation restrictions added by section 3(c) of this Act

7 shall apply only to employees appointed after the date of

8 enactment of this Act.

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