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. HUN-
TER, Mr. MCCOLLUM, Mr. DELAY, Mr. PAXON, Mr. FISH, Mr. MOOR-
HEAD, 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.
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 1993’’.
SEC. 2. EXTENSION.
Section 599 of title 28, United States Code, is
amended by striking ‘‘Reauthorization Act of 1987’’ and
inserting ‘‘Act of 1993’’.
SEC. 3. APPLICATION TO MEMBERS OF CONGRESS.
Section 591(b) of title 28, United States Code, is
amended—
(1) by striking ‘‘and’’ at the end of paragraph
(7);
(2) by striking the period at the end of para-
graph (8) and inserting ‘‘; and’’; and
(3) by adding at the end the following:
‘‘(9) any Senator, or any Representative in, or
Delegate or Resident Commissioner to, the Con-
gress, or any person who has served as a Senator or
such a Representative, Delegate, or Resident Com-
missioner within the 2-year period before the receipt
of the information under subsection (a) with respect
to conduct that occurred while such person was a
Senator or such a Representative, Delegate, or Resi-
dent Commissioner.’’.
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)—
(A) by striking ‘‘information’’ and insert-
ing ‘‘specific information from a credible source
that is’’; and
(B) by striking ‘‘may have’’ and inserting
‘‘has’’;
(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’’; and
(3) by amending subsection (d) to read as fol-
lows:
‘‘(d) TIME PERIOD FOR DETERMINING NEED FOR
PRELIMINARY INVESTIGATION.—The Attorney General
shall determine, under subsection (a) or (c) (or section
592(c)(2)), whether grounds to investigate exist not later
than 15 days after the information is first received. If
within that 15-day period the Attorney General deter-
mines that there is insufficient evidence of a violation of
Federal criminal law referred to in subsection (a), then
the Attorney General shall close the matter. If within that
15-day period the Attorney General determines there is
sufficient evidence of such a violation, the Attorney Gen-
eral shall, upon making that determination, commence a
preliminary investigation with respect to that information.
If the Attorney General is unable to determine, within that
15-day period, whether there is sufficient evidence of such
a violation, the Attorney General shall, at the end of that
15-day period, commence a preliminary investigation with
respect to that information.’’.
(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
subpoenas duces tecum’’.
SEC. 6. PROSECUTORIAL JURISDICTION OF INDEPENDENT
COUNSEL.
(a) PROSECUTORIAL JURISDICTION.—Section 593(b)
of title 28, United States Code, 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
follows:
‘‘(3) SCOPE
OF
PROSECUTORIAL
JURISDIC-
TION.—In defining the independent counsel’s pros-
ecutorial jurisdiction, the division of the court shall
assure that the independent counsel has adequate
authority to fully investigate and prosecute 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 re-
lated to such criminal violations, including perjury,
obstruction of justice, destruction of evidence, and
intimidation of witnesses.’’.
(b) CONFORMING AMENDMENT.—Section 592(d) of
title 28, United States Code, is amended by striking ‘‘sub-
ject matter and all matters related to that subject matter’’
and inserting ‘‘the alleged violations of criminal law with
respect to which the application is made, and matters di-
rectly related to such criminal violations’’.
SEC. 7. USE OF STATE AND LOCAL PROSECUTORS; STAFF
OF INDEPENDENT COUNSEL.
(a) PROSECUTORS AS INDEPENDENT COUNSEL.—
Section 593(b)(1) of title 28, United States Code, as
amended by section 7 of this Act, is further amended by
adding at the end the following: ‘‘The division of the court
should strongly consider exercising the authority of section
3372 of title 5 so that it may appoint as independent
counsel prosecutors from State or local governments, and
the division of the court may exercise the authorities of
such section 3372 for such purpose to the same extent
as the head of a Federal agency.’’.
(b) STAFF
OF INDEPENDENT COUNSEL.—Section
594(c) of title 28, United States Code, is amended by
striking the last sentence and inserting the following: ‘‘Not
more than 2 such employees may be compensated at a rate
not to exceed the rate of basic pay payable for level V
of the Executive schedule under section 5316 of title 5,
and all other such employees shall be compensated at rates
not to exceed the maximum rate of basic pay payable for
GS–15 of the General Schedule under section 5332 of title
5. The independent counsel should, to the greatest extent
possible, use personnel of the Department of Justice, on
a reimbursable basis, in lieu of appointing employees, to
carry out the duties of such independent counsel. The
independent counsel should also strongly consider exercis-
ing the authority of section 3372 of title 5 so that he or
she may appoint as employees under this subsection pros-
ecutors of State or local governments. In order to carry
out the preceding sentence, each independent counsel
shall, for purposes of such section 3372, be considered to
be the head of a Federal agency.’’.
SEC. 8. ATTORNEYS’ FEES.
Section 593(f)(1) of title 28, United States Code, is
amended in the first sentence—
(1) by striking ‘‘the court may’’ and inserting
‘‘the court shall’’;
(2) by inserting after ‘‘pursuant to that inves-
tigation,’’ the following: ‘‘if such individual is acquit-
ted of all charges, or no conviction is obtained
against such individual, at a trial brought pursuant
to that investigation, or if the conviction of such in-
dividual at such a trial is overturned on appeal,’’;
and
(3) by inserting ‘‘, trial, and appeal (if any)’’
after ‘‘during that investigation’’.
SEC. 9. TREATMENT OF CLASSIFIED INFORMATION.
Section 594(a) of title 28, United States Code, is
amended by adding at the end the following:
‘‘An independent counsel appointed under this chapter
who gains access to classified information shall follow all
procedures established by the United States Government
regarding the maintenance, use, and disclosure of such in-
formation. The failure to follow such procedures shall be
grounds for removal for good cause under section
596(a)(1), in addition to any penalty provided in section
798 of title 18 or any other law that may apply.’’.
SEC. 10. INDEPENDENT COUNSEL PER DIEM EXPENSES.
Section 594(b) of title 28, United States Code, is
amended to read as follows:
‘‘(b) COMPENSATION.—
‘‘(1) IN GENERAL.—Except as provided in para-
graph (2), an independent counsel appointed under
this chapter shall receive compensation at the per
diem rate equal to the annual rate of basic pay pay-
able for level IV of the Executive Schedule under
section 5315 of title 5.
‘‘(2) TRAVEL AND LODGING IN WASHINGTON.—
An independent counsel and persons appointed
under subsection (c) shall not be entitled to the pay-
ment of travel and subsistence expenses under sub-
chapter 1 of chapter 57 of title 5, with respect to
duties performed in the District of Columbia after 1
year of service under this chapter.’’.
SEC. 11. AUTHORITIES AND DUTIES OF INDEPENDENT
COUNSEL.
(a) ADMINISTRATIVE SUPPORT.—Section 594 of title
28, United States Code, is amended by adding at the end
the following new subsection:
‘‘(l) ADMINISTRATIVE SERVICES.—
‘‘(1) ADMINISTRATIVE SUPPORT.—The Admin-
istrator of General Services shall provide administra-
tive support to each independent counsel.
‘‘(2) OFFICE
SPACE.—The Administrator of
General Services shall promptly provide appropriate
office space for each independent counsel. Such of-
fice space shall be within a Federal building unless
the Administrator of General Services determines
that other arrangements would cost less.’’.
(b) COMPLIANCE WITH POLICIES OF THE DEPART-
MENT OF JUSTICE.—Section 594(f) of title 28, United
States Code, is amended—
(1) by striking ‘‘, except where not possible,’’
and inserting ‘‘at all times’’; and
(2) by striking ‘‘enforcement of the criminal
laws’’ and inserting ‘‘the enforcement of criminal
laws and the release of information relating to crimi-
nal proceedings’’.
(c) LIMITATION ON EXPENDITURES.—Section 594 of
title 28, United States Code, is amended by adding at the
end the following:
‘‘(m) LIMITATION
ON EXPENDITURES.—No funds
may be expended for the operation of any office of inde-
pendent counsel after the end of the 2-year period after
its establishment, except to the extent that an appropria-
tions Act enacted after such establishment specifically
makes available funds for such office for use after the end
of that 2-year period.’’.
SEC. 12. PERIODIC REPORTS.
Section 595(a)(2) of title 28, United States Code, is
amended by striking ‘‘such statements’’ and all that fol-
lows through ‘‘appropriate’’ and inserting ‘‘annually a re-
port on the activities of such independent counsel, includ-
ing a description of the progress of any investigation or
prosecution conducted by such independent counsel. Such
report need not contain information which would—
‘‘(A) compromise or undermine the con-
fidentiality of an ongoing investigation under
this chapter,
‘‘(B) adversely affect the outcome of any
prosecution under this chapter, or
‘‘(C) violate the personal privacy of any in-
dividual,
but shall provide information adequate to justify the
expenditures which the office of that independent
counsel has made, and indicate in general terms the
state of the work of the independent counsel’’.
SEC. 13. REMOVAL, TERMINATION, AND PERIODIC RE-
APPOINTMENT OF INDEPENDENT COUNSEL.
(a) GROUNDS FOR REMOVAL.—Section 596(a)(1) of
title 28, United States Code, is amended by adding at the
end the following: ‘‘Failure of the independent counsel to
comply with the established policies of the Department of
Justice as required by section 594(f) or to comply with
section 594(j) may be grounds for removing that inde-
pendent counsel from office for good cause under this sub-
section.’’.
(b) TERMINATION.—Section 596(b)(2) of title 28,
United States Code, is amended to read as follows:
‘‘(2) TERMINATION
BY
DIVISION
OF
THE
COURT.—The division of the court may terminate an
office of independent counsel at any time—
‘‘(A) on its own motion,
‘‘(B) upon the request of the Attorney
General, or
‘‘(C) upon the petition of the subject of an
investigation conducted by such independent
counsel, if the petition is made more than 2
years after the appointment of such independ-
ent counsel,
on the ground that the investigation conducted by
the independent counsel has been completed or sub-
stantially completed and that it would be appro-
priate for the Department of Justice to complete
such investigation or to conduct any prosecution
brought pursuant to such investigation, or on the
ground that continuation of the investigation or
prosecution conducted by the independent counsel is
not in the public interest.’’.
(c) PERIODIC REAPPOINTMENT.—Section 596 of title
28, United States Code, is amended by adding at the end
the following:
‘‘(d) PERIODIC REAPPOINTMENT OF INDEPENDENT
COUNSEL.—If an office of independent counsel has not
terminated before—
‘‘(1) the date that is 2 years after the original
appointment to that office, or
‘‘(2) the end of each succeeding 2-year period,
such counsel shall apply to the division of the court for
reappointment. The court shall first determine whether
the office of that independent counsel should be termi-
nated under subsection (b)(2). If the court determines
that such office will not be terminated under such sub-
section, the court shall reappoint the applicant if the court
determines that such applicant remains the appropriate
person to carry out the duties of the office. If not, the
court shall appoint some other person whom it considers
qualified under the standards set forth in section 593 of
this title. If the court has not taken the actions required
by this subsection within 90 days after the end of the ap-
plicable 2-year period, then that office of independent
counsel shall terminate at the end of that 90-day period.’’.
SEC. 14. JOB PROTECTIONS FOR INDIVIDUALS UNDER IN-
VESTIGATION.
(a) IN GENERAL.—Section 597 of title 28, United
States Code, is amended—
(1) by amending the section caption to read as
follows:
‘‘§ 597. Relationship with Department of Justice; job
protection for individuals under inves-
tigation’’; and
(2) by adding at the end the following:
‘‘(c) JOB PROTECTION FOR INDIVIDUALS UNDER IN-
VESTIGATION.—
‘‘(1) PROHIBITED
PERSONNEL
PRACTICE.—It
shall be a prohibited personnel practice for an em-
ployee of the United States Government who has au-
thority to take, direct others to take, recommend, or
approve any personnel action (as defined in section
2302(a)(2)(A) of title 5) with respect to an individ-
ual described in paragraph (2) who is the subject of
an investigation or prosecution under this chapter,
to take or fail to take, or threaten to take or fail to
take, such a personnel action with respect to such
individual, on account of such investigation or pros-
ecution.
‘‘(2) APPLICABILITY.—The individuals referred
to in paragraph (1) are individuals other than—
‘‘(A) any person described in section
591(a); and
‘‘(B) any employee of the Federal Govern-
ment whose position is excepted from the com-
petitive service on the basis of its confidential,
policy-determining, policy-making, or policy-ad-
vocating character.
‘‘(3) EXEMPTION.—Paragraph (1) does not
apply in the case of an individual who is convicted
of a criminal offense pursuant to an investigation or
prosecution described in paragraph (1), unless such
conviction is overturned on appeal.
‘‘(4) REMEDIES.—An individual with respect to
whom a prohibited personnel practice applies under
paragraph (1) may seek corrective action from the
Merit Systems Protection Board to the same extent
as an employee may seek corrective action under sec-
tion 1221 of title 5 (including subsection (h) of such
section), except that, for purposes of such section,
any reference to section 2302(b)(8) of title 5 shall
be deemed to refer to paragraph (1) of this sub-
section, and any reference to a disclosure under such
section 2302(b)(8) shall be deemed to refer to an in-
vestigation or prosecution described in paragraph (1)
of this subsection.’’.
(b) CONFORMING AMENDMENT.—The item relating
to section 597 in the table of sections at the beginning
of chapter 40 of title 28, United States Code, is amended
to read as follows:
‘‘597. Relationship with Department of Justice; job protection for individuals
under investigation.’’.
SEC. 15. EFFECT OF TERMINATION OF CHAPTER.
Section 599 of title 28, United States Code, is
amended by inserting ‘‘, or until 120 days have elapsed,
whichever is earlier’’ after ‘‘completed’’.
SEC. 16. GAO REPORT.
The Comptroller General of the United States shall
submit to the Congress, not later than 1 year after the
date of the enactment of this Act, a report setting forth
recommendations of ways to improve controls on costs of
offices of independent counsel under chapter 40 of title
28, United States Code.
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