To re-establish and reform the independent counsel statute.

October 3, 2003

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

To re-establish and reform the independent counsel statute.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Independent Counsel Reform Act of 2003'.

SEC. 2. INDEPENDENT COUNSEL STATUTE.

Chapter 40 of title 28, United States Code, is amended to read as follows:

`CHAPTER 40--INDEPENDENT COUNSEL

`Sec.

`591. Applicability of provisions of this chapter.

`592. Preliminary investigation and application for appointment of an independent counsel.

`593. Duties of the division of the court.

`594. Authority and duties of an independent counsel.

`595. Congressional oversight.

`596. Removal of an independent counsel; termination of office.

`597. Relationship with Department of Justice.

`598. Severability.

`599. Termination of effect of chapter.

`Sec. 591. Applicability of provisions of this chapter

`(a) PRELIMINARY INVESTIGATION WITH RESPECT TO CERTAIN COVERED PERSONS- The Attorney General shall conduct a preliminary investigation in accordance with section 592 whenever the Attorney General receives information sufficient to constitute grounds to investigate whether any person described in subsection (b) may have violated any Federal criminal law other than a violation classified as a Class B or C misdemeanor or an infraction.

`(b) PERSONS TO WHOM SUBSECTION (a) APPLIES- The persons referred to in subsection (a) are--

`(1) the President and Vice President;

`(2) any individual serving in a position listed in section 5312 of title 5; and

`(3) the Chief of Staff to the President.

`(c) PRELIMINARY INVESTIGATION WITH RESPECT TO OTHER PERSONS- When the Attorney General determines that an investigation or prosecution of a person by the Department of Justice may result in a personal, financial, or political conflict of interest, the Attorney General may conduct a preliminary investigation of such person in accordance with section 592 if the Attorney General receives information sufficient to constitute grounds to investigate whether that person may have violated Federal criminal law other than a violation classified as a Class B or C misdemeanor or an infraction.

`(d) EXAMINATION OF INFORMATION TO DETERMINE NEED FOR PRELIMINARY INVESTIGATION-

`(1) FACTORS TO BE CONSIDERED- In determining under subsection (a) or section 592(c)(2) whether grounds to investigate exist, the Attorney General shall consider only--

`(A) the specificity of the information received; and

`(B) the credibility of the source of the information.

`(2) TIME PERIOD FOR MAKING DETERMINATION- The Attorney General shall determine whether grounds to investigate exist not later than 30 days after the information is first received. If within that 30-day period the Attorney General determines that the information is not specific or is not from a credible source, then the Attorney General shall close the matter. If within that 30-day period the Attorney General determines that the information is specific and from a credible source, the Attorney General shall, upon making that determination, commence a preliminary investigation with respect to that information. If the Attorney General is unable to determine, within that 30-day period, whether the information is specific and from a credible source, the Attorney General shall, at the end of that 30-day period, commence a preliminary investigation with respect to that information.

`(e) RECUSAL OF ATTORNEY GENERAL-

`(1) WHEN RECUSAL IS REQUIRED-

`(A) INVOLVING THE ATTORNEY GENERAL- If information received under this chapter involves the Attorney General, the next most senior official in the Department of Justice who is not also recused shall perform the duties assigned under this chapter to the Attorney General.

`(B) PERSONAL OR FINANCIAL RELATIONSHIP- If information received under this chapter involves a person with whom the Attorney General has a personal or financial relationship, the Attorney General shall recuse himself or herself by designating the next most senior official in the Department of Justice who is not also recused to perform the duties assigned under this chapter to the Attorney General.

`(2) REQUIREMENTS FOR RECUSAL DETERMINATION- Before personally making any other determination under this chapter with respect to information received under this chapter, the Attorney General shall determine under paragraph (1)(B) whether recusal is necessary. The Attorney General shall set forth this determination in writing, identify the facts considered by the Attorney General, and set forth the reasons for the recusal. The Attorney

General shall file this determination with any notification or application submitted to the division of the court under this chapter with respect to that information.

`Sec. 592. Preliminary investigation and application for appointment of an independent counsel

`(a) CONDUCT OF PRELIMINARY INVESTIGATION-

`(1) IN GENERAL- A preliminary investigation conducted under this chapter shall be of those matters as the Attorney General considers appropriate in order to make a determination, under subsection (b) or (c), with respect to each potential violation, or allegation of a violation, of criminal law. The Attorney General shall make that determination not later than 120 days after the preliminary investigation is commenced, except that, in the case of a preliminary investigation commenced after a congressional request under subsection (g), the Attorney General shall make that determination not later

than 120 days after the request is received. The Attorney General shall promptly notify the division of the court specified in section 593(a) of the commencement of that preliminary investigation and the date of commencement.

`(2) LIMITED AUTHORITY OF ATTORNEY GENERAL-

`(A) IN GENERAL- In conducting preliminary investigations under this chapter, the Attorney General shall have no authority to plea bargain or grant immunity. The Attorney General shall have the authority to convene grand juries and issue subpoenas.

`(B) NOT TO BE BASIS OF DETERMINATIONS- The Attorney General shall not base a determination under this chapter--

`(i) that information with respect to a violation of criminal law by a person is not specific and from a credible source upon a determination that that person lacked the state of mind required for the violation of criminal law; or

`(ii) that there are no substantial grounds to believe that further investigation is warranted, upon a determination that that person lacked the state of mind required for the criminal violation involved, unless there is a preponderance of the evidence that the person lacked that state of mind.

`(3) EXTENSION OF TIME FOR PRELIMINARY INVESTIGATION- The Attorney General may apply to the division of the court for a single extension, for a period of not more than 90 days, of the 120-day period referred to in paragraph (1). The division of the court may, upon a showing of good cause, grant that extension.

`(b) DETERMINATION THAT FURTHER INVESTIGATION NOT WARRANTED-

`(1) NOTIFICATION OF DIVISION OF THE COURT- If the Attorney General, upon completion of a preliminary investigation under this chapter, determines that there are no substantial grounds to believe that further investigation is warranted, the Attorney General shall promptly so notify the division of the court, and the division of the court shall have no power to appoint an independent counsel with respect to the matters involved.

`(2) FORM OF NOTIFICATION- Notification under paragraph (1) shall contain a summary of the information received and a summary of the results of the preliminary investigation.

`(c) DETERMINATION THAT FURTHER INVESTIGATION IS WARRANTED-

`(1) APPLICATION FOR APPOINTMENT OF INDEPENDENT COUNSEL- The Attorney General shall apply to the division of the court for the appointment of an independent counsel if--

`(A) the Attorney General, upon completion of a preliminary investigation under this chapter, determines that there are substantial grounds to believe that further investigation is warranted; or

`(B) the 120-day period referred to in subsection (a)(1), and any extension granted under subsection (a)(3), have elapsed and the Attorney General has not filed a notification with the division of the court under subsection (b)(1).

In determining under this chapter whether there are substantial grounds to believe that further investigation is warranted, the Attorney General shall comply with the written or other established policies of the Department of Justice with respect to the conduct of criminal investigations.

`(2) RECEIPT OF ADDITIONAL INFORMATION- If, after submitting a notification under subsection (b)(1), the Attorney General receives additional information sufficient to constitute grounds to

investigate the matters to which that notification related, the Attorney General shall--

`(A) conduct such additional preliminary investigation as the Attorney General considers appropriate for a period of not more than 120 days after the date on which that additional information is received; and

`(B) otherwise comply with the provisions of this section with respect to that additional preliminary investigation to the same extent as any other preliminary investigation under this section.

`(d) CONTENTS OF APPLICATION- Any application for the appointment of an independent counsel under this chapter shall contain sufficient information to assist the division of the court in selecting an independent counsel and in defining that independent counsel's prosecutorial

jurisdiction so that the independent counsel has adequate authority to fully investigate and prosecute the subject matter and all matters directly related to that subject matter.

`(e) DISCLOSURE OF INFORMATION- Except as otherwise provided in this chapter or as is deemed necessary for law enforcement purposes, no officer or employee of the Department of Justice or an office of independent counsel may, without leave of the division of the court, disclose to any individual outside the Department of Justice or that office any notification, application, or any other document, materials, or memorandum supplied to the division of the court under this chapter. Nothing in this chapter shall be construed as authorizing the withholding of information from the Congress.

`(f) LIMITATION ON JUDICIAL REVIEW- The Attorney General's determination under this chapter to apply to the division of the court for the appointment of an independent counsel shall not be reviewable in any court.

`(g) CONGRESSIONAL REQUEST-

`(1) BY JUDICIARY COMMITTEE OR MEMBERS THEREOF- The Committee on the Judiciary of either House of the Congress, or a majority of majority party members or a majority of all nonmajority party members of either such committee, may request in writing that the Attorney General apply for the appointment of an independent counsel.

`(2) REPORT BY ATTORNEY GENERAL PURSUANT TO REQUEST- Not later than 30 days after the receipt of a request under paragraph (1), the Attorney General shall submit, to the committee making the request, or to the committee on which the persons making the request serve, a report on whether the Attorney General has begun or will begin a preliminary investigation under this chapter of the matters with respect to which the request is made, in accordance with section 591(a). The report shall set forth the reasons for the Attorney General's decision regarding the preliminary investigation as it relates to each of the matters with respect to which the congressional request is made. If there is such a preliminary investigation, the report shall include the date on which the preliminary investigation began or will begin.

`(3) SUBMISSION OF INFORMATION IN RESPONSE TO CONGRESSIONAL REQUEST- At the same time as any notification, application, or any other document, material, or memorandum is supplied to the division of the court pursuant to this section with respect to a preliminary investigation of any matter with respect to which a request is made under paragraph (1), that notification, application, or other document, material, or memorandum shall be supplied to the committee making the request, or to the committee on which the persons making the request serve. If no application for the appointment of an independent counsel is made to the division of the court under this section pursuant to such a preliminary investigation, the Attorney General shall submit a report to that committee stating the reasons why the application was not made, addressing each matter with respect to which the congressional request was made.

`(4) DISCLOSURE OF INFORMATION- Any report, notification, application, or other document, material, or memorandum supplied to a committee under this subsection shall not be revealed to any third party, except that the committee may, either on its own initiative or upon the request of the Attorney General, make public such portion or portions of that report, notification, application, document, material, or memorandum as will not in the committee's judgment prejudice the rights of any individual.

`Sec. 593. Duties of the division of the court

`(a) REFERENCE TO DIVISION OF THE COURT- The division of the court to which this chapter refers is the division established under section 49 of this title.

`(b) APPOINTMENT AND JURISDICTION OF INDEPENDENT COUNSEL-

`(1) AUTHORITY- Upon receipt of an application under section 592(c), the division of the court shall appoint an appropriate independent counsel and define the independent counsel's prosecutorial

jurisdiction. The appointment shall be made from a list of candidates comprised of 5 individuals recommended by the chief judge of each Federal circuit and forwarded by January 15 of each year to the division of the court.

`(2) QUALIFICATIONS OF INDEPENDENT COUNSEL- The division of the court shall appoint as independent counsel an individual who--

`(A) has appropriate experience, including, to the extent practicable, prosecutorial experience and who has no actual or apparent personal, financial, or political conflict of interest;

`(B) will conduct the investigation on a full-time basis and in a prompt, responsible, and cost-effective manner; and

`(C) does not hold any office of profit or trust under the United States.

`(3) SCOPE OF PROSECUTORIAL JURISDICTION-

`(A) IN GENERAL- In defining the independent counsel's prosecutorial jurisdiction under this chapter, the division of the court shall assure that the independent counsel has adequate authority to fully investigate and prosecute--

`(i) the subject matter with respect to which the Attorney General has requested the appointment of the independent counsel; and

`(ii) all matters that are directly related to the independent counsel's prosecutorial jurisdiction and the proper investigation and prosecution of the subject matter of such jurisdiction.

`(B) DIRECTLY RELATED- In this paragraph, the term `directly related matters' includes Federal crimes, other than those classified as Class B or C misdemeanors or infractions, that impede the investigation and prosecution, such as perjury, obstruction of justice,

destruction of evidence, and intimidation of witnesses.

`(4) DISCLOSURE OF IDENTITY AND PROSECUTORIAL JURISDICTION- An independent counsel's identity and prosecutorial jurisdiction may not be made public except upon the request of the Attorney General or upon a determination of the division of the court that disclosure of the identity and prosecutorial jurisdiction of that independent counsel would be in the best interests of justice. In any event, the identity and prosecutorial jurisdiction of the independent counsel shall be made public when any indictment is returned, or any criminal information is filed, pursuant to the independent counsel's investigation.

`(c) RETURN FOR FURTHER EXPLANATION- Upon receipt of a notification under section 592 from the Attorney General that there are no substantial grounds to believe that further investigation is warranted with respect to information received under this chapter, the division of the court shall have no authority to overrule this determination but may return the matter to the Attorney General for further explanation of the reasons for that determination.

`(d) VACANCIES- If a vacancy in office arises by reason of the resignation, death, or removal of an independent counsel, the division of the court shall appoint an independent counsel to complete the work of the independent counsel whose resignation, death, or removal caused the vacancy, except that in the case of a vacancy arising by reason of the removal of an independent counsel, the division of the court may appoint an acting independent counsel to serve until any judicial review of the removal is completed.

`(e) ATTORNEYS' FEES-

`(1) AWARD OF FEES- Upon the request of an individual who is the subject of an investigation conducted by an independent counsel pursuant to this chapter, the division of the court may, if no indictment is brought against that individual pursuant to the investigation, award reimbursement for those reasonable attorneys' fees incurred by the individual during the investigation which would not have been incurred but for the requirements of this chapter. The division of the court shall notify the independent counsel who conducted the investigation and the Attorney General of any request for attorneys' fees under this subsection.

`(2) EVALUATION OF FEES- The division of the court shall direct the independent counsel and the Attorney General to file a written evaluation of any request for attorneys' fees under this subsection, addressing--

`(A) the sufficiency of the documentation;

`(B) the need or justification for the underlying item;

`(C) whether the underlying item would have been incurred but for the requirements of this chapter; and

`(D) the reasonableness of the amount of money requested.

`(f) DISCLOSURE OF INFORMATION- The division of the court may, subject to section 594(h)(2), allow the disclosure of any notification, application, or any other document, material, or memorandum supplied to the division of the court under this chapter.

`(g) AMICUS CURIAE BRIEFS- When presented with significant legal issues, the division of the court may disclose sufficient information about the issues to permit the filing of timely amicus curiae briefs.

`Sec. 594. Authority and duties of an independent counsel

`(a) AUTHORITIES- Notwithstanding any other provision of law, an independent counsel appointed under this chapter shall have, with respect to all matters in that independent counsel's prosecutorial jurisdiction established under this chapter, full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice, except that the Attorney General shall exercise direction or control as to those matters that specifically require the Attorney General's personal action under section 2516 of title 18. Such investigative and prosecutorial functions and powers shall include--

`(1) conducting proceedings before grand juries and other investigations;

`(2) participating in court proceedings and engaging in any litigation, including civil and criminal matters, that the independent counsel considers necessary;

`(3) appealing any decision of a court in any case or proceeding in which the independent counsel participates in an official capacity;

`(4) reviewing all documentary evidence available from any source;

`(5) determining whether to contest the assertion of any testimonial privilege;

`(6) receiving appropriate national security clearances and, if necessary, contesting in court (including, where appropriate, participating in in camera proceedings) any claim of privilege or attempt to withhold evidence on grounds of national security;

`(7) making applications to any Federal court for a grant of immunity to any witness, consistent with applicable statutory requirements, or for warrants, subpoenas, or other court orders, and, for purposes of sections 6003, 6004, and 6005 of title 18, exercising the authority vested in a United States attorney or the Attorney General;

`(8) inspecting, obtaining, or using the original or a copy of any tax return, in accordance with the applicable statutes and regulations, and, for purposes of section 6103 of the Internal Revenue Code of 1986 and the regulations issued thereunder, exercising the powers vested in a United States attorney or the Attorney General;

`(9) initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States; and

`(10) consulting with the United States attorney for the district in which any violation of law with respect to which the independent counsel is appointed was alleged to have occurred.

`(b) COMPENSATION-

`(1) IN GENERAL- An independent counsel appointed under this chapter shall receive compensation at the annual rate of basic pay payable for level IV of the Executive Schedule under section 5315 of title 5.

`(2) TRAVEL EXPENSES- Except as provided in paragraph (3), an independent counsel and persons appointed under subsection (c) shall be entitled to the payment of travel expenses as provided by subchapter I of chapter 57 of title 5, United States Code, including travel, per diem, and subsistence expenses in accordance with section 5703 of title 5.

`(3) TRAVEL TO PRIMARY OFFICE-

`(A) IN GENERAL- After 1 year of service under this chapter, an independent counsel and persons appointed under subsection (c) shall not be entitled to the payment of travel, per diem, or subsistence expenses under subchapter I of chapter 57 of title 5, United States Code, for the purpose of commuting to or from the city in which the primary office of the independent counsel or person is located. The 1-year period may be extended for successive 6-month periods if the independent counsel and the division of the court certify that the payment is in the public interest to carry out the purposes of this chapter.

`(B) RELEVANT FACTORS- In making any certification under this paragraph with respect to travel and subsistence expenses of an

independent counsel or person appointed under subsection (c), that employee shall consider, among other relevant factors--

`(i) the cost to the Government of reimbursing those travel and subsistence expenses;

`(ii) the period of time for which the independent counsel anticipates that the activities of the independent counsel or person, as the case may be, will continue;

`(iii) the personal and financial burdens on the independent counsel or person, as the case may be, of relocating so that the travel and subsistence expenses would not be incurred; and

`(iv) the burdens associated with appointing a new independent counsel, or appointing another person under subsection (c), to replace the individual involved who is unable or unwilling to so relocate.

`(c) ADDITIONAL PERSONNEL- For the purposes of carrying out the duties of an office of independent counsel, an independent counsel may appoint, fix the compensation, and assign the duties of such employees as such independent counsel considers necessary (including investigators, attorneys, and part-time consultants). The positions of all such employees are exempted from the competitive service. Such employees shall be compensated at levels not to exceed those payable for comparable positions in the Office of United States Attorney for the District of Columbia under sections 548 and 550, but in no event shall any such employee be compensated at a rate greater than the rate of basic pay payable for level ES-4 of the Senior Executive Service Schedule under section 5382 of title 5, as adjusted for the District of Columbia under section 5304 of that title regardless of the locality in which an employee is employed.

`(d) ASSISTANCE OF DEPARTMENT OF JUSTICE-

`(1) IN CARRYING OUT FUNCTIONS- An independent counsel may request assistance from the Department of Justice in carrying out the functions of the independent counsel, and the Department of Justice shall provide that assistance, which may include access to any records, files, or other materials relevant to matters within that independent counsel's prosecutorial jurisdiction, and the use of the resources and personnel necessary to perform that independent counsel's duties. At the request of an independent counsel, prosecutors, administrative personnel, and other employees of the Department of Justice may be detailed to the staff of the independent counsel to the extent the number of staff so detailed is reasonably related to the number of staff ordinarily assigned by the Department to conduct an investigation of similar size and complexity.

`(2) PAYMENT OF AND REPORTS ON EXPENDITURES OF INDEPENDENT COUNSEL- The Department of Justice shall pay all costs relating to the establishment and operation of any office of independent counsel. The Attorney General shall submit to the Congress, not later than 30 days after the end of each fiscal year, a report on amounts paid during that fiscal year for expenses of investigations

and prosecutions by independent counsel. Each such report shall include a statement of all payments made for activities of independent counsel but may not reveal the identity or prosecutorial jurisdiction of any independent counsel which has not been disclosed under section 593(b)(4).

`(e) REFERRAL OF DIRECTLY RELATED MATTERS TO AN INDEPENDENT COUNSEL- An independent counsel may ask the Attorney General or the division of the court to refer to the independent counsel only such matters that are directly related to the independent counsel's prosecutorial jurisdiction, and the Attorney General or the division of the court, as the case may be, may refer such matters. If the Attorney General refers a matter to an independent counsel on the Attorney General's own initiative, the independent counsel may accept that referral only if the matter directly relates to the independent counsel's prosecutorial jurisdiction. If the Attorney General refers any matter to the independent counsel pursuant to the independent counsel's request, or if the independent counsel accepts a referral made by the Attorney General on the Attorney General's own initiative, the independent counsel shall so notify the division of the court.

`(f) COMPLIANCE WITH POLICIES OF THE DEPARTMENT OF JUSTICE-

`(1) IN GENERAL- An independent counsel shall comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws except when that policy requires the specific approval of the Attorney General or another Department of Justice official. If a policy requires the approval of the Attorney General or other Department of Justice official, an independent counsel is encouraged to consult with the Attorney General or other official. To identify and understand these policies and policies under

subsection (l)(1)(B), the independent counsel shall consult with the Department of Justice.

`(2) NATIONAL SECURITY- An independent counsel shall comply with guidelines and procedures used by the Department in the handling and use of classified material.

`(3) RELIEF FROM A VIOLATION OF POLICIES-

`(A) IN GENERAL- A person who is a target, witness, or defendant in, or otherwise directly affected by, an investigation by an independent counsel and who has reason to believe that the independent counsel is violating a written policy of the Department of Justice material to the independent counsel's investigation, may ask the Attorney General to determine whether the independent counsel has violated that policy. The Attorney General shall respond in writing within 30 days.

`(B) RELIEF- If the Attorney General determines that the independent counsel has violated a written policy of the Department of Justice material to the investigation by the independent counsel pursuant to subparagraph (A), the Attorney General may ask the division of the court to order the independent counsel to comply with that policy, and the division of the court may order appropriate relief.

`(g) DISMISSAL OF MATTERS- The independent counsel shall have full authority to dismiss matters within the independent counsel's prosecutorial jurisdiction without conducting an investigation or at any subsequent time before prosecution, if to do so would be consistent with the written or other established policies of the Department of Justice with respect to the enforcement of criminal laws.

`(h) REPORTS BY INDEPENDENT COUNSEL-

`(1) REQUIRED REPORTS- An independent counsel shall--

`(A) file with the division of the court, with respect to the 6-month period beginning on the date of his or her appointment, and with respect to each 6-month period thereafter until the office of that independent counsel terminates, a report which identifies and explains major expenses, and summarizes all other expenses, incurred by that office during the 6-month period with respect to which the report is filed, and estimates future expenses of that office; and

`(B) before the termination of the independent counsel's office under section 596(b), file a final report with the division of the court, setting forth only the following:

`(i) the jurisdiction of the independent counsel's investigation;

`(ii) a list of indictments brought by the independent counsel and the disposition of each indictment, including any verdicts, pleas, convictions, pardons, and sentences; and

`(iii) a summary of the expenses of the independent counsel's office.

`(2) DISCLOSURE OF INFORMATION IN REPORTS- The division of the court may release to the Congress, the public, or any appropriate person, those portions of a report made under this subsection as the division of the court considers appropriate. The division of the court shall make those orders as are appropriate to protect the rights of any individual named in that report and to prevent undue interference with any pending prosecution. The division of the court may make any portion of a final report filed under paragraph (1)(B) available to any individual named in that report for the purposes of receiving within a time limit set by the division of the court any comments or factual information that the individual may submit. Such comments and factual information, in whole or in part, may, in the discretion of the division of the court, be included as an appendix to the final report.

`(3) PUBLICATION OF REPORTS- At the request of an independent counsel, the Public Printer shall cause to be printed any report previously released to the public under paragraph (2). The independent counsel shall certify the number of copies necessary for the public, and the Public Printer shall place the cost of the required number to the debit

of the independent counsel. Additional copies shall be made available to the public through the depository library program and Superintendent of Documents sales program pursuant to sections 1702 and 1903 of title 44.

`(i) INDEPENDENCE FROM DEPARTMENT OF JUSTICE- Each independent counsel appointed under this chapter, and the persons appointed by that independent counsel under subsection (c), are employees of the Department of Justice for purposes of sections 202 through 209 of title 18.

`(j) STANDARDS OF CONDUCT APPLICABLE TO INDEPENDENT COUNSEL, PERSONS SERVING IN THE OFFICE OF AN INDEPENDENT COUNSEL, AND THEIR LAW FIRMS-

`(1) RESTRICTIONS ON EMPLOYMENT WHILE INDEPENDENT COUNSEL AND APPOINTEES ARE SERVING-

`(A) INDEPENDENT COUNSEL- During the period in which an independent counsel is serving under this chapter--

`(i) that independent counsel shall have no other paid employment; and

`(ii) any person associated with a firm with which that independent counsel is associated may not represent in any matter any person involved in any investigation or prosecution under this chapter.

`(B) OTHER PERSONS- During the period in which any person appointed by an independent counsel under subsection (c) is serving in the office of independent counsel, that person may not represent in any matter any person involved in any investigation or prosecution under this chapter.

`(2) POST EMPLOYMENT RESTRICTIONS ON INDEPENDENT COUNSEL AND APPOINTEES- Each independent counsel and each person appointed by that independent counsel under subsection (c) may not--

`(A) for 3 years following the termination of the service under this chapter of that independent counsel or appointed person, as the case may be, represent any person in any matter if that individual was the subject of an investigation or prosecution under this chapter that was conducted by that independent counsel; or

`(B) for 1 year following the termination of the service under this chapter of that independent counsel or appointed person, as the case may be, represent any person in any matter involving any investigation or prosecution under this chapter.

`(3) ONE-YEAR BAN ON REPRESENTATION BY MEMBERS OF FIRMS OF INDEPENDENT COUNSEL- Any person who is associated with a firm with which an independent counsel is associated or becomes associated after termination of the service of that independent counsel under this chapter may not, for 1 year following that termination, represent any person in any matter involving any investigation or prosecution under this chapter.

`(4) DEFINITIONS- For purposes of this subsection--

`(A) the term `firm' means a law firm whether organized as a partnership or corporation; and

`(B) a person is `associated' with a firm if that person is an officer, director, partner, or other member or employee of that firm.

`(5) ENFORCEMENT- The Attorney General and the Director of the Office of Government Ethics have authority to enforce compliance with this subsection. The designated agency ethics official for the Department of Justice shall be the ethics adviser for the independent counsel and employees of the independent counsel.

`(k) CUSTODY OF RECORDS OF AN INDEPENDENT COUNSEL-

`(1) TRANSFER OF RECORDS- Upon termination of the office of an independent counsel, that independent counsel shall transfer to the Archivist of the United States all records which have been created or received by that office. Before this transfer, the independent counsel shall clearly identify which of these records are subject to rule 6(e) of the Federal Rules of Criminal Procedure as grand jury materials and which of these records have been classified as national security information. Any records which were compiled by an independent counsel and, upon termination of the independent counsel's office, were stored with the division of the court or elsewhere before the enactment of the Independent Counsel Reauthorization Act of 1987, shall also be transferred to the Archivist of the United States by the division of the court or the person in possession of those records.

`(2) MAINTENANCE, USE, AND DISPOSAL OF RECORDS- Records transferred to the Archivist under this chapter shall be maintained, used, and disposed of in accordance with chapters 21, 29, and 33 of title 44.

`(3) ACCESS TO RECORDS-

`(A) IN GENERAL- Subject to paragraph (4), access to the records transferred to the Archivist under this chapter shall be governed by section 552 of title 5.

`(B) ACCESS BY DEPARTMENT OF JUSTICE- The Archivist shall, upon written

application by the Attorney General, disclose any such records to the Department of Justice for purposes of an ongoing law enforcement investigation or court proceeding, except that, in the case of grand jury materials, those records shall be so disclosed only by order of the court of jurisdiction under rule 6(e) of the Federal Rules of Criminal Procedure.

`(C) EXCEPTION- Notwithstanding any restriction on access imposed by law, the Archivist and persons employed by the National Archives and Records Administration who are engaged in the performance of normal archival work shall be permitted access to the records transferred to the Archivist under this chapter.

`(4) RECORDS PROVIDED BY CONGRESS- Records of an investigation conducted by a committee of the House of Representatives or the Senate which are provided to an independent counsel to assist in an investigation or prosecution conducted by that independent counsel--

`(A) shall be maintained as a separate body of records within the records of the independent counsel; and

`(B) shall, after the records have been transferred to the Archivist under this chapter, be made available, except as provided in paragraph (3) (B) and (C), in accordance with the rules governing release of the records of the House of Congress that provided the records to the independent counsel.

Subparagraph (B) shall not apply to those records which have been surrendered pursuant to grand jury or court proceedings.

`(l) COST AND ADMINISTRATIVE SUPPORT-

`(1) COST CONTROLS-

`(A) IN GENERAL- An independent counsel shall--

`(i) conduct all activities with due regard for expense;

`(ii) authorize only reasonable and lawful expenditures; and

`(iii) promptly, upon taking office, assign to a specific employee the duty of certifying that expenditures of the independent counsel are reasonable and made in accordance with law.

`(B) LIABILITY FOR INVALID CERTIFICATION- An employee making a certification under subparagraph (A)(iii) shall be liable for an invalid certification to the same extent as a certifying official certifying a voucher is liable under section 3528 of title 31.

`(C) DEPARTMENT OF JUSTICE POLICIES- An independent counsel shall comply with the established policies of the Department of Justice respecting expenditures of funds.

`(2) BUDGET- The independent counsel, after consulting with the Attorney General, shall, within 90 days of appointment, submit a budget for the first year of the investigation and, on the anniversary of the appointment, for each year thereafter to the Attorney General and the General Accounting Office. The General Accounting Office shall review the budget and submit a written appraisal of the budget to the independent counsel and the Committees on Governmental Affairs and Appropriations of the Senate and the Committees on the Judiciary and Appropriations of the House of Representatives.

`(3) ADMINISTRATIVE SUPPORT- The Director of the Administrative Office of the United States Courts shall provide administrative support and guidance to each independent counsel. No officer or employee of the Administrative Office of the United States Courts shall disclose information related to an independent counsel's expenditures, personnel, or administrative acts or arrangements without the authorization of the independent counsel.

`(4) OFFICE SPACE- The Administrator of General Services, in consultation with the Director of the Administrative Office of the United States Courts, shall promptly provide appropriate office space for each independent counsel. The office space shall be within a Federal building unless the Administrator of General Services determines that other arrangements would cost less. Until the office space is provided, the Administrative Office of the United States Courts shall provide newly appointed independent counsels immediately upon appointment with appropriate, temporary office space, equipment, and supplies.

`(m) EXPEDITED JUDICIAL CONSIDERATION AND REVIEW- It shall be the duty of the courts of the United States to advance on the docket and to expedite to the greatest extent possible the disposition of matters relating to an investigation and prosecution by an independent counsel under this chapter consistent with the purposes of this chapter.

`Sec. 595. Congressional oversight

`(a) OVERSIGHT OF CONDUCT OF INDEPENDENT COUNSEL-

`(1) CONGRESSIONAL OVERSIGHT- The appropriate committees of the Congress shall have oversight jurisdiction with respect to the official conduct of any independent counsel appointed under this chapter, and the independent counsel shall have the duty to cooperate with the exercise of that oversight jurisdiction.

`(2) REPORTS TO CONGRESS- An independent counsel appointed under this chapter shall submit to the Congress annually a report on the activities of the independent counsel, including a description of the progress of any investigation or prosecution conducted by the independent counsel. The report may omit any matter that in the judgment of the independent counsel should be kept confidential, but shall provide information adequate to justify the expenditures that the office of the independent counsel has made.

`(b) OVERSIGHT OF CONDUCT OF ATTORNEY GENERAL- Within 15 days after receiving an inquiry about a particular case under this chapter, which is a matter of public knowledge, from a committee of the Congress with jurisdiction over this chapter, the Attorney General shall provide the following information to that committee with respect to the case:

`(1) When the information about the case was received.

`(2) Whether a preliminary investigation is being conducted, and if so, the date it began.

`(3) Whether an application for the appointment of an independent counsel or a notification that further investigation is not warranted has been filed with the division of the court, and if so, the date of that filing.

`Sec. 596. Removal of an independent counsel; termination of office

`(a) REMOVAL; REPORT ON REMOVAL-

`(1) GROUNDS FOR REMOVAL-

`(A) IN GENERAL- An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical or mental disability (if not prohibited by law protecting persons from discrimination on the basis of such a disability), or any other condition that impairs the performance of that independent counsel's duties.

`(B) GOOD CAUSE- In this paragraph, the term `good cause' includes--

`(i) a knowing and material failure to comply with written Department of Justice policies relevant to the conduct of a criminal investigation; and

`(ii) an actual personal, financial, or political conflict of interest.

`(2) REPORT TO DIVISION OF THE COURT AND CONGRESS- If an independent counsel is removed from office, the Attorney General shall promptly submit to the division of the court and the Committees on the Judiciary of the Senate and the House of Representatives a report specifying the facts found and the ultimate grounds for the removal. The committees shall make available to the public that report, except that each committee may, if necessary to protect the rights of any individual named in the report or to prevent undue interference with any pending prosecution, postpone or refrain from publishing any or all of the report. The division of the court may release any or all of the report in accordance with section 594(h)(2).

`(3) JUDICIAL REVIEW OF REMOVAL- An independent counsel removed from office may obtain judicial review of the removal in a civil action commenced in the United States District Court for the District of Columbia. A member of the division of the court may not hear or determine any such civil action or any appeal of a decision in any such civil action. The independent counsel may be reinstated or granted other appropriate relief by order of the court.

`(b) TERMINATION OF OFFICE-

`(1) TERMINATION BY ACTION OF INDEPENDENT COUNSEL- An office of independent counsel shall terminate when--

`(A) the independent counsel notifies the Attorney General that the investigation of all matters within the prosecutorial jurisdiction of the independent counsel or accepted by the independent counsel under section 594(e), and any resulting prosecutions, have been completed or so substantially completed that it would be appropriate for the Department of Justice to complete those investigations and prosecutions; and

`(B) the independent counsel files a final report in compliance with section 594(h)(1)(B).

`(2) TERMINATION BY DIVISION OF THE COURT- The division of the court, either on its own motion or upon the request of the Attorney General, may terminate an office of independent counsel at any time, on the ground that the investigation of all matters within the prosecutorial jurisdiction of the independent counsel or accepted by the independent counsel under section 594(e), and any resulting prosecutions, have been completed or so substantially completed that it would be appropriate for the Department of Justice to complete those investigations and prosecutions. At the time of that termination, the independent counsel shall file the final report required by section 594(h)(1)(B). If the Attorney General has not made a request under this paragraph, the division of the court shall determine on its own motion whether termination is appropriate under this paragraph no later than 2 years after the appointment of an independent counsel.

`(3) TERMINATION AFTER 2 YEARS-

`(A) GENERAL RULE- Except as provided in subparagraph (B), the term of an independent counsel shall terminate at the expiration of 2 years after the date of appointment of the independent counsel and any matters under investigation by the independent counsel shall be transferred to the Attorney General.

`(B) EXCEPTIONS-

`(i) GOOD CAUSE- An independent counsel may petition the division of the court to extend the investigation of the independent counsel for up to 1 year for good cause. The division of the court shall determine whether the grant of such an extension is warranted and determine the length of each extension.

`(ii) DILATORY TACTICS- If the investigation of an independent counsel was delayed by dilatory tactics by persons that could provide evidence that would significantly assist the investigation, an independent counsel may petition the division of the court to extend the investigation of the independent counsel for an additional period of time equal to the amount of time lost by the dilatory tactics. If the division of the court finds that dilatory tactics did delay the investigation, the division of the court shall extend the investigation for a period equal to the delay.

`(c) AUDITS-

`(1) IN GENERAL- On or before June 30 of each year, an independent counsel shall prepare a statement of expenditures for the 6 months that ended on the immediately preceding March 31. On or before December 31 of each year, an independent counsel shall prepare a statement of expenditures for the fiscal year that ended on the immediately preceding September 30. An independent counsel whose office is terminated prior to the end of the fiscal year shall prepare a statement of expenditures on or before the date that is 90 days after the date on which the office is terminated.

`(2) COMPTROLLER GENERAL REVIEW- The Comptroller General shall--

`(A) conduct a financial review of a mid-year statement and a financial audit of a year-end statement and statement on termination; and

`(B) report the results to the Committee on the Judiciary, Committee on Governmental Affairs, and Committee on Appropriations of the Senate and the Committee on the Judiciary, Committee on Government Reform, and Committee on Appropriations of the House of Representatives not later than 90 days following the submission of each statement.

`Sec. 597. Relationship with Department of Justice

`(a) SUSPENSION OF OTHER INVESTIGATIONS AND PROCEEDINGS- Whenever a matter is in the prosecutorial jurisdiction of an independent counsel or has been accepted by an independent counsel under section 594(e), the Department of Justice, the Attorney General, and all other officers and employees of the Department of Justice shall suspend all investigations and proceedings regarding that matter, except to the extent required by section 594(d)(1), and except insofar as the independent counsel agrees in writing that the investigation or proceedings may be continued by the Department of Justice.

`(b) PRESENTATION AS AMICUS CURIAE PERMITTED- Nothing in this chapter shall prevent the Attorney General or the Solicitor General from making a presentation as amicus curiae to any court as to issues of law raised by any case or proceeding in which an independent counsel participates in an official capacity or any appeal of such a case or proceeding.

`Sec. 598. Severability

`If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of this chapter and the application of that

provision to other persons not similarly situated or to other circumstances shall not be affected by that invalidation.

`Sec. 599. Termination of effect of chapter

`This chapter shall cease to be effective 5 years after the date of enactment of the Independent Counsel Reform Act of 2003, except that this chapter shall continue in effect with respect to then pending matters before an independent counsel that in the judgment of that counsel require the continuation until that independent counsel determines those matters have been completed.'.

SEC. 3. ASSIGNMENT OF JUDGES TO DIVISION TO APPOINT INDEPENDENT COUNSELS.

Section 49 of title 28, United States Code, is amended to reads as follows:

`Sec. 49. Assignment of judges to division to appoint independent counsels

`(a) IN GENERAL- Beginning with the 3-year period commencing on the date of the enactment of the Independent Counsel Reform Act of 2003, 3 judges shall be assigned for each successive 3-year period to a division of the United States Court of Appeals for the District of Columbia to be the division of the court for the purpose of appointing independent counsels. The Clerk of the United States Court of Appeals for the District of Columbia Circuit shall serve as the clerk of the division of the court and shall provide such services as are needed by the division of the court.

`(b) OTHER JUDICIAL ASSIGNMENTS- Except as provided in subsection (e), assignment to the division of the court shall not be a bar to other judicial assignments during the term of the division of the court.

`(c) DESIGNATION AND ASSIGNMENT- The Chief Justice of the United States shall designate and assign by a lottery of all circuit court judges, 3 circuit court judges 1 of whom shall be a judge of the United States Court of Appeals for the District of Columbia, to the division of the court. Not more than 1 judge may be named to the division of the court from a particular court.

`(d) VACANCY- Any vacancy in the division of the court shall be filled only for the remainder of the 3-year period in which that vacancy occurs and in the same manner as initial assignments to the division of the court were made.

`(e) RECUSAL- Except as otherwise provided in chapter 40 of this title, no member of the division of the court who participated in a function conferred on the division of the court under chapter 40 of this title involving an independent counsel shall be eligible to participate in any judicial proceeding concerning a matter that--

`(1) involves that independent counsel while the independent counsel is serving in that office; or

`(2) involves the exercise of the independent counsel's official duties, regardless of whether the independent counsel is still serving in that office.'.

END