II

106TH CONGRESS

1ST SESSION S. 250

To establish ethical standards for Federal prosecutors, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 19, 1999

Mr. HATCH (for himself, Mr. DEWINE, and Mr. NICKLES) introduced the following bill; which was read twice and referred to the Committee on the

Judiciary

A BILL

To establish ethical standards for Federal prosecutors, 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 ‘‘Federal Prosecutor

5 Ethics Act’’.

6 SEC. 2. ETHICAL STANDARDS FOR FEDERAL PROSECU7 TORS.

8 (a) AMENDMENTS TO TITLE 28, UNITED STATES

9 CODE.—
2

•S 250 IS

1 (1) GENERAL.—Section 530B of title 28,

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

3 ‘‘§ 530B. Ethical standards for Federal prosecutors

4 ‘‘(a) GENERAL.—Except as provided in subsection

5 (b), a Federal prosecutor shall be subject to all laws and

6 rules governing ethical conduct of attorneys of the State

7 in which the Federal prosecutor is licensed as an attorney.

8 ‘‘(b) EXCEPTION.—A Federal prosecutor shall not be

9 subject to a State law or rule governing ethical conduct

10 of attorneys, to the extent that the State law or rule is

11 inconsistent with Federal law or interferes with the effec12 tuation of Federal law or policy, including the investiga13 tion of violations of Federal law.

14 ‘‘(c) FEDERAL PROSECUTOR DEFINED.—In this sec15 tion, the term ‘Federal prosecutor’ means an attorney em16 ployed by the Department of Justice who is directly en17 gaged in the prosecution of violations of Federal civil or

18 criminal law.’’.

19 (2) TECHNICAL AND CONFORMING AMEND20 MENT.—The analysis for chapter 31 of title 28,

21 United States Code, is amended by striking the item

22 for section 530B and inserting the following:

‘‘530B. Ethical standards for Federal prosecutors.’’.

23 (3) REGULATIONS.—Not later than 90 days

24 after the date of enactment of this Act, the Attorney

25 General shall promulgate such regulations as may be
3

•S 250 IS

1 necessary to carry out section 530B of title 28,

2 United States Code, as added by paragraph (1) of

3 this subsection.

4 (b) PROHIBITED CONDUCT FOR DEPARTMENT OF

5 JUSTICE EMPLOYEES.—

6 (1) IN GENERAL.—The Attorney General shall

7 establish by rule that it shall be punishable conduct

8 for any officer or employee of the Department of

9 Justice, in the discharge of his or her official duties,

10 intentionally to—

11 (A) seek the indictment of any person in

12 the absence of a reasonable belief of probable

13 cause, as prohibited by the Principles of Fed14 eral Prosecution, United States Attorneys’

15 Manual 9–27.200 et seq.;

16 (B) fail to disclose exculpatory evidence to

17 the defense, in violation of his or her obligations

18 under Brady v. Maryland (373 U.S. 83

19 (1963));

20 (C) mislead a court as to the guilt of any

21 person by knowingly making a false statement

22 of material fact or law;

23 (D) offer evidence known to be false;

24 (E) alter evidence in violation of section

25 1512 of title 18, United States Code;
4

•S 250 IS

1 (F) attempt to corruptly influence or color

2 a witness’s testimony with the intent to encour3 age untruthful testimony, in violation of section

4 1503 or 1512 of title 18, United States Code;

5 (G) violate a defendant’s right to discovery

6 under Rule 16(a) of the Federal Rules of

7 Criminal Procedure;

8 (H) offer or provide sexual activities to any

9 government witness or potential witness in ex10 change for or on account of his or her testi11 mony; or

12 (I) improperly disseminate confidential,

13 non-public information to any person during an

14 investigation or trial, in violation of—

15 (i) section 50.2 of title 28, Code of

16 Federal Regulations;

17 (ii) Rule 6(e) of the Federal Rules of

18 Criminal Procedure;

19 (iii) subsection (b) or (c) of section

20 2232 of title 18, United States Code;

21 (iv) section 6103 of the Internal Reve22 nue Code of 1986; or

23 (v) United States Attorneys’ Manual

24 1–7.000 et seq.
5

•S 250 IS

1 (2) PENALTIES.—The Attorney General shall

2 establish a range of penalties for engaging in con3 duct prohibited under paragraph (1), which shall

4 include—

5 (A) reprimand;

6 (B) demotion;

7 (C) dismissal;

8 (D) suspension from employment;

9 (E) referral of ethical charges to the bar;

10 and

11 (F) referral of evidence related to the con12 duct, if appropriate, to a grand jury for possible

13 criminal prosecution.

14 (3) SUBSTANTIVE RIGHTS.—Nothing in para15 graph (1) may be construed to—

16 (A) establish any substantive right on be17 half of a criminal defendant, civil litigant, tar18 get or subject of an investigation, witness,

19 counsel for a represented party or parties, or

20 any other person; or

21 (B) provide a basis for—

22 (i) dismissing any criminal or civil

23 charge or proceeding against any person in

24 any court of the United States; or
6

•S 250 IS

1 (ii) excluding relevant evidence in any

2 proceeding in any court of the United

3 States.

4 (c) ANNUAL REPORT.—

5 (1) IN GENERAL.—Beginning on June 1, 1999,

6 and on June 1 of each year thereafter, the Attorney

7 General shall submit to the Committees on the Judi8 ciary and on Appropriations of the House of Rep9 resentatives and the Senate a report on the activities

10 and operations of the Office of Professional Respon11 sibility of the Department of Justice during the fis12 cal year that ended on September 30 of the preced13 ing year.

14 (2) ELEMENTS OF REPORT.—Each report sub15 mitted under paragraph (1) shall—

16 (A) include the number, type, and disposi17 tion of all investigations conducted or super18 vised by the Office of Professional Responsibil19 ity;

20 (B) include a summary of the findings of

21 each investigation in which the Department of

22 Justice found that an officer or employee of the

23 Department of Justice—

24 (i) engaged in willful misconduct; or
7

•S 250 IS

1 (ii) committed a willful violation of

2 subsection (b)(1); and

3 (C) be confidential and not disclose infor4 mation that would interfere with any pending

5 investigation or improperly infringe upon the

6 privacy rights of any individual.

7 (d) COMMISSION ON FEDERAL PROSECUTORIAL CON8 DUCT.—

9 (1) ESTABLISHMENT AND FUNCTIONS OF COM10 MISSION.—

11 (A) ESTABLISHMENT.—There is estab12 lished a Commission on Federal Prosecutorial

13 Conduct (referred to in this subsection as the

14 ‘‘Commission’’).

15 (B) FUNCTIONS.—The functions of the

16 Commission shall be to—

17 (i) conduct a review regarding—

18 (I) whether there are specific

19 Federal duties related to investigation

20 and prosecution of violations of Fed21 eral law which are incompatible with

22 the regulation of the conduct of Fed23 eral prosecutors (as that term is de24 fined in section 530B of title 28,

25 United States Code) by any State law
8

•S 250 IS

1 or rule governing ethical conduct of

2 attorneys; and

3 (II) the procedures utilized by

4 the Department of Justice to inves5 tigate and punish inappropriate con6 duct by Federal prosecutors; and

7 (ii) not later than 12 months after the

8 date on which the members of the Commis9 sion are appointed under paragraph

10 (2)(B), submit to the Attorney General a

11 report concerning the review under clause

12 (i), including any recommendations of the

13 Commission relating to the matters re14 viewed under clause (i).

15 (C) CONSULTATION.—In carrying out sub16 paragraph (B), the Commission shall consult

17 with the Attorney General, the Chairmen and

18 Ranking Members of the Committees on the

19 Judiciary of the House of Representatives and

20 the Senate, the American Bar Association and

21 other organizations of attorneys, representatives

22 of Federal, State, and local law enforcement

23 agencies, and Federal and State courts.

24 (2) MEMBERSHIP.—
9

•S 250 IS

1 (A) IN GENERAL.—The Commission shall

2 be composed of 7 members, each of whom shall

3 be—

4 (i) appointed by the Chief Justice of

5 the United States, after consultation with

6 the Chairmen and Ranking Members of

7 the Committees on the Judiciary of the

8 House of Representatives and the Senate,

9 and representatives of judges, prosecutors,

10 defense attorneys, law enforcement offi11 cials, victims of crime, and others inter12 ested in the criminal justice process; and

13 (ii) a judge of the United States (as

14 defined in section 451 of title 28, United

15 States Code).

16 (B) APPOINTMENT.—The members of the

17 Commission shall be appointed not later than

18 30 days after the date of enactment of this Act.

19 (C) VACANCY.—Any vacancy in the Com20 mission shall be filled in the same manner as

21 the original appointment.

22 (D) CHAIRPERSON.—The Commission

23 shall elect a chairperson and vice chairperson

24 from among its members.
10

•S 250 IS

1 (E) QUORUM.—Four members of the Com2 mission shall constitute a quorum, but 2 mem3 bers may conduct hearings.

4 (3) COMPENSATION.—Members of the Commis5 sion who are officers, or full-time employees, of the

6 United States shall receive no additional compensa7 tion for their services, but shall be reimbursed for

8 travel, subsistence, and other necessary expenses in9 curred in the performance of duties vested in the

10 Commission, but not in excess of the maximum

11 amounts authorized under section 456 of title 28,

12 United States Code.

13 (4) PERSONNEL.—

14 (A) EXECUTIVE DIRECTOR.—The Commis15 sion may appoint an Executive Director, who

16 shall receive compensation at a rate not exceed17 ing the rate prescribed for level V of the Execu18 tive Schedule under section 5316 of title 5,

19 United States Code.

20 (B) STAFF.—The Executive Director, with

21 the approval of the Commission, may appoint

22 and fix the compensation of such additional

23 personnel as the Executive Director determines

24 to be necessary, without regard to the provi25 sions of title 5, United States Code, governing
11

•S 250 IS

1 appointments in the competitive service or the

2 provisions of chapter 51 and subchapter III of

3 chapter 53 of such title relating to classification

4 and General Schedule pay rates. Compensation

5 under this subparagraph shall not exceed the

6 annual maximum rate of basic pay for a posi7 tion above GS–15 of the General Schedule

8 under section 5108 of title 5, United States

9 Code.

10 (C) EXPERTS AND CONSULTANTS.—The

11 Executive Director may procure personal serv12 ices of experts and consultants as authorized by

13 section 3109 of title 5, United States Code, at

14 rates not to exceed the highest level payable

15 under the General Schedule pay rates under

16 section 5332 of title 5, United States Code.

17 (D) SERVICES.—The Administrative Office

18 of the United States Courts shall provide ad19 ministrative services, including financial and

20 budgeting services, to the Commission on a re21 imbursable basis. The Federal Judicial Center

22 shall provide necessary research services to the

23 Commission on a reimbursable basis.

24 (5) INFORMATION.—The Commission may re25 quest from any department, agency, or independent
12

•S 250 IS

1 instrumentality of the Federal Government any in2 formation and assistance the Commission determines

3 to be necessary to carry out its functions under this

4 subsection. Each such department, agency, and inde5 pendent instrumentality is authorized to provide

6 such information and assistance to the extent per7 mitted by law when requested by the chairperson of

8 the Commission.

9 (6) REPORT OF THE ATTORNEY GENERAL.—

10 Not later than 60 days after the date of enactment

11 of this Act, the Attorney General shall submit to the

12 Commission a report, which shall, with respect to

13 the 3-year period preceding the date on which the

14 report is submitted under this paragraph—

15 (A) include the number, type, and disposi16 tion of all investigations conducted or super17 vised by the Office of Professional Responsibil18 ity of the Department of Justice;

19 (B) include a summary of the findings of

20 each investigation in which the Department of

21 Justice found that an officer or employee of the

22 Department of Justice engaged in willful mis23 conduct; and

24 (C) be confidential and not disclose infor25 mation that would interfere with any pending
13

•S 250 IS

1 investigation or improperly infringe upon the

2 privacy rights of any individual.

3 (7) TERMINATION.—The Commission shall ter4 minate 90 days after the date on which the Commis5 sion submits the report under paragraph (1)(B)(ii).

6 (8) AUTHORIZATION OF APPROPRIATIONS.—

7 There is authorized to be appropriated to the Com8 mission such sums, not to exceed $900,000, as may

9 be necessary to carry out this subsection. Amounts

10 made available under this paragraph shall remain

11 available until expended.

Æ