I
105TH CONGRESS
1ST SESSION
H. R. 117
To reauthorize the independent counsel statute, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 7, 1997
Mr. CONYERS 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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Independent Counsel
Accountability and Reform Act of 1997’’.
SEC. 2. EXTENSION.
Section 599 of title 28, United States Code, is
amended by striking ‘‘Reauthorization Act of 1994’’ and
inserting ‘‘Accountability and Reform Act of 1997’’.
SEC. 3. APPOINTMENT AUTHORITY.
(a) DIVISION.—Section 49 of title 28, United States
Code, is amended by adding at the end the following:
‘‘(g) One member of such division of the court must
have been appointed to the Federal bench by a President
of a different political party than the President who ap-
pointed the other 2 members of such division.
‘‘(h) The District Court of the District of Columbia
shall have jurisdiction over members of such division with
respect to matters regarding the appointment or activities
of an independent counsel.’’.
(b) CODE
OF
CONDUCT
FOR
JUDGES.—Section
593(b)(1) of title 28, United States Code, is amended by
adding at the end the following: ‘‘The division of the court
appointed by the Chief Justice of the United States to ap-
point independent counsels shall comply with the Code of
Conduct for United States Judges.’’.
(c) EX PARTE COMMUNICATION.—Section 593(b)(1)
of title 28, United States Code, as amended by subsection
(b), is amended by adding at the end the following: ‘‘In
determining the qualifications of a candidate to be ap-
pointed as independent counsel, the special division may
solicit and receive oral and written ex parte communica-
tions if the fact of such communications are in writing
or are memorialized by a writing. All such writings shall
become public documents at such time as the special divi-
sion, in the exercise of its discretion, deems appropriate,
except that the division may, for good cause, redact any
portion of such writings.
(d) LIMITATION ON INITIAL INVESTIGATION.—Sec-
tion 593(b) of title 28, United States Code, is amended
by adding at the end the following:
‘‘(5) The court shall appoint the independent counsel
for an initial period not to exceed 6 months after which
the independent counsel shall report back to the court with
a recommendation as to whether further investigation is
necessary, whether the matter should be dispensed with,
or whether the matter may be appropriately referred to
the Department of Justice. If the independent counsel rec-
ommends further investigation and the court determines
that further investigation is appropriate, the court shall
direct the independent counsel to pursue the investigation
and the appointment of the independent counsel shall be
extended to the completion of the investigation.’’.
(e) CONSIDERATIONS.—Section 593(b)(2) of title 28,
United States Code, is amended by adding at the end the
following: ‘‘In making an appointment of an individual to
be an independent counsel for an investigation, the divi-
sion of the court shall consider the following factors:
‘‘(A) Whether the division should require such
individual to refrain from other professional employ-
ment during all or some of the period of the individ-
ual’s service as independent counsel.
‘‘(B) Whether the nature of the individual’s
continued employment during any period that the in-
dividual is also serving as independent counsel cre-
ates, or is likely to lead to, a conflict of interest be-
tween the individual’s duties to the United States
and the individual’s duties to the individual’s clients
or others.
‘‘(C) Whether the individual or any person pro-
fessionally associated with the individual is then act-
ing or has acted as a lawyer on behalf of a private
party or government entity in any matter in which
the interest of such party or entity are or were ad-
verse to the interests of any of the subjects of the
independent counsel’s investigation.
‘‘(D) Whether any other facts in the individ-
ual’s professional business or private life would raise
a reasonable question about the appearance of inde-
pendence of the individual as independent counsel.
‘‘(E) Whether the individual has substantial
prosecutorial experience.
The division of the court shall issue an opinion explaining
its application of this paragraph to the appointment of the
independent counsel and explaining any other issues con-
sidered in making the appointment.’’.
SEC. 4. BASIS FOR PRELIMINARY INVESTIGATION.
(a) INITIAL RECEIPT
OF INFORMATION.—Section
591 of title 28, United States Code, is amended—
(1) in subsection (a), by striking ‘‘any Federal
criminal law other than a violation classified as a
Class B or Class C misdemeanor infraction’’ and in-
serting ‘‘any Federal felony or any Federal mis-
demeanor for which there is an established practice
of prosecution and which is alleged to have occurred
or commenced while the target of the investigation
was in office’’;
(2) in subsection (c)(1)—
(A) by striking ‘‘information’’ and insert-
ing ‘‘specific information from a credible source
that is’’; and
(B) by striking ‘‘may have’’ and inserting
‘‘has’’.
(b) RECEIPT OF ADDITIONAL INFORMATION.—Sec-
tion 592(c)(2) of title 28, United States Code, is amended
by striking ‘‘information’’ and inserting ‘‘specific informa-
tion from a credible source that is’’.
SEC. 5. SUBPOENA POWER.
Section 592(a)(2) of title 28, United States Code, is
amended by striking ‘‘grant immunity, or issue subpoe-
nas’’ and inserting ‘‘or grant immunity but may issue sub-
poenas duces tecum’’.
SEC. 6. LEVEL OF EVIDENCE.
Section 592(a)(2)(B)(ii) is amended by striking
‘‘clear and convincing evidence’’ and inserting ‘‘a prepon-
derance of the evidence’’.
SEC. 7. PROSECUTORIAL JURISDICTION OF INDEPENDENT
COUNSEL.
Section 593(b) of title 28, United States Code, as
amended by section 3(b), is amended—
(1) in paragraph (1)—
(A) by striking ‘‘define’’ and inserting
‘‘, with specificity, define’’; and
(B) by adding at the end the following:
‘‘Such jurisdiction shall be limited to the al-
leged violations of criminal law with respect to
which the Attorney General has requested the
appointment of the independent counsel, and
matters directly related to such criminal viola-
tions.’’; and
(2) by amending paragraph (3) to read as fol-
lows: