The text of the bill below is as of Dec 15, 1987 (Passed Congress).
You are reading a bill enacted 12,884 days ago. In the intervening time subsequent legislation may have amended or repealed the provisions below.
PUBLIC LAW 100-191—DEC. 15, 1987 101 STAT. 1293
Public Law 100-191
100th Congress
An Act
To amend title 28, United States Code, with respect to the appointment of Dec. 15, 1987
independent counsel. [H.R. 2939]
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, Independent
Counsel
SECTION 1. SHORT TITLE. Reauthorization
Act of 1987.
This Act may be cited as the "Independent Counsel Reauthoriza- Government
tion Act of 1987". organization and
employees.
SEC. 2. AMENDMENTS RELATING TO INDEPENDENT COUNSEL. Law
Chapter 40 of title 28, United States Code, is amended to read as enforcement
and crime.
follows: 28 u s e 1 note.
"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.
"§ 591. Applicability of provisions of this chapter 28 u s e 591.
"(a) PRELIMINARY INVESTIGATION WITH RESPECT TO CERTAIN COV-
ERED 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 President of U.S.
referred to in subsection (a) are— Vice President
of U.S.
"(1) the President and Vice President;
"(2) any individual serving in a position listed in section 5312
of title 5;
"(3) any individual working in the Executive Office of the
President who is compensated at a rate of pay at or above level
II of the Executive Schedule under section 5313 of title 5;
"(4) any Assistant Attorney General and any individual work-
ing in the Department of Justice who is compensated at a rate
of pay at or above level III of the Executive Schedule under
section 5314 of title 5;
"(5) the Director of Central Intelligence, the Deputy Director
of Central Intelligence, and the Commissioner of Internal
Revenue;
101 STAT. 1294 PUBLIC LAW 100-191—DEC. 15, 1987
"(6) any individual who leaves any office or position described
in any of paragraphs (1) through (5) of this subsection, during
the incumbency of the President under whom such individual
served in the office or position plus one year after such incum-
bency, but in no event longer than a period of three years after
•\-ifUi' V . the individual leaves the office or position;
"(7) any individual who held an office or position described in
any of paragraphs (1) through (5) of this subsection during the
4f >i *> incumbency of one President and who continued to hold the
office or position for not more than 90 days into the term of the
'"'^^ next President, during the 1-year period after the individual
leaves the office or position; and
,f,3 "(8) the chairman and treasurer of the principal national
campaign committee seeking the election or reelection of the
President, and any officer of that committee exercising author-
ity at the national level, during the incumbency of the
.; President.
"(c) PRELIMINARY INVESTIGATION WITH RESPECT TO PERSONS NOT
LISTED IN SUBSECTION (b).—The Attorney General may conduct a
preliminary investigation in accordance with section 592 if—
"(1) the Attorney General receives information sufficient to
constitute grounds to investigate whether any person other
than a person described in subsection Ot>) may have violated any
Federal criminal law other than a violation classified as a Class
B or C misdemeanor or an infraction; and
"(2) the Attorney General determines that an investigation or
prosecution of the person, with respect to the information re-
ceived, by the Attorney General or other officer of the Depart-
ment of Justice may result in a personal, financial, or political
r P, j^ „. conflict of interest.
'"'' ' ' "(d) EXAMINATION OF INFORMATION TO DETERMINE NEED FOR
PRELIMINARY INVESTIGATION.—
"(1) FACTORS TO BE CONSIDERED.—In determining under
subsection (a) or (c) (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 15 days after the information is first received. If
within that 15-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
15-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 15-day
period, whether the information is specific and from a credible
source, the Attorney General shall, at the end of that 15-day
period, commence a preliminary investigation with respect to
that information.
"(e) RECUSAL OF ATTORNEY GENERAL.—
"(1) WHEN RECUSAL IS REQUIRED.—If information received
under this chapter involves the Attorney General or a person
with whom the Attorney General has a current or recent
personal or financial relationship, the Attorney General shall
PUBLIC LAW 100-191—DEC. 15, 1987 101 STAT. 1295
recuse himself or herself by designating the next most senior
officer in the Department of Justice whom that information
does not involve and who does not have a current or recent
personal or financial relationship with such person to perform
the duties assigned under this chapter to the Attorney General
with respect to that information.
"(2) REQUIREMENTS FOR RECUSAL DETERMINATION.—The Attor-
ney General shall, before personally making any other
determination under this chapter with respect to information
received under this chapter, determine under paragraph (1)
whether to recuse himself or herself with respect to that
information. A determination to recuse shall be in writing, shall
identify the facts considered by the Attorney General, and shall
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 the information involved.
'*§ 592. Preliminary investigation and application for appointment 28 use 592.
of an independent counsel
"(a) CONDUCT OF PREUMINARY INVESTIGATION.—
"(1) IN GENERAL.—A preliminary investigation conducted
under this chapter shall be of such matters as the Attorney
General considers appropriate in order to make a determina-
tion, under subsection (b) or (c), on whether further investiga-
tion is warranted, with respect to each potential violation, or
allegation of a violation, of criminal law. The Attorney General
shall make such determination not later than 90 days after the
preliminary investigation is commenced, except that, in the
case of a preliminary investigation commenced after a congres-
sional request under subsection (g), the Attorney General shall
make such determination not later than 90 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 such preliminary investigation and the date
of such commencement.
"(2) LIMITED AUTHORITY OF ATTORNEY GENERAL.—(A) In
conducting preliminary investigations under this chapter, the
Attorney General shall have no authority to convene grand
juries, plea bargain, grant immunity, or issue subpoenas.
"(BXi) The Attorney General shall not base a determination
under this chapter 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 such person lacked the state
of mind required for the violation of criminal law.
"(ii) The Attorney General shall not base a determination
under this chapter that there are no reasonable grounds to
believe that further investigation is warranted, upon a deter-
mination that such person lacked the state of mind required for
the violation of criminal law involved, unless there is clear and
convincing evidence that the person lacked such state of mind.
"(3) EXTENSION OF TIME FOR PREUMINARY INVESTIGATION.—
The Attorney General may apply to the division of the court for
a single extension, for a period of not more than 60 days, of the
90-day period referred to in paragraph (1). The division of the
court may, upon a showing of good cause, grant such extension.
101 STAT. 1296 PUBLIC LAW 100-191—DEC. 15, 1987
"(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 reasonable 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.—Such notification 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) APPUCATION FOR APPOINTMENT OF INDEPENDENT COUN-
SEL.—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 prelimi-
.%&:. :.iy] -i. Mim- nary investigation under this chapter, determines that
there are reasonable grounds to believe that further inves-
tigation is warranted; or
"(B) the 90-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 (bXD.
In determining under this chapter whether reasonable grounds
exist to warrant further investigation, the Attorney General
shall comply with the written or other established policies of
the Department of Justice with respect to the conduct of crimi-
nal investigations.
"(2) RECEIPT OF ADDITIONAL INFORMATION.—If, after submit-
ting a notification under subsection (bXD, the Attorney General
receives additional information sufficient to constitute grounds
to investigate the matters to which such notification related,
the Attorney General shall—
• fir "(A) conduct such additional preliminary investigation as
the Attorney General considers appropriate for a period of
al not more than 90 days after the date on which such addi-
•BM tional information is received; and
fiffifi "(B) otherwise comply with the provisions of this section
with respect to such additional preliminary investigation to
the same extent as any other preliminary investigation
under this section.
"(d) CIONTENTS OF APPUCATION.—Any application for the appoint-
ment 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 ade-
quate authority to fully investigate and prosecute the subject matter
and all matters related to that subject matter.
"(e) DISCLOSURE OF INFORMATION.—Except as otherwise provided
in this chapter, 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 Depart-
ment of Justice or such 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
PUBLIC LAW 100-191—DEC. 15, 1987 101 STAT. 1297
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 inves-
tigation under this chapter of the matters with respect to which
the request is made, in accordance with subsection (a) or (c) of
section 591, as the case may be. The report shall set forth the
reasons for the Attorney General's decision regarding such
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 CONGRES-
SIONAL REQUEST.—At the same time as any notification, applica-
tion, 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), such
notification, application, or other document, material, or memo-
randum 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 Reports.
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 such 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 sup-
plied 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 such report, notifica-
tion, application, document, material, or memorandum as will
not in the committee's judgment prejudice the rights of any
individual.
"§ 593. Duties of the division of the court 28 USC 593.
"(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.
101 STAT. 1298 PUBLIC LAW 100-191—DEC. 15, 1987
"(b) APPOINTMENT AND JURISDICTION OF INDEPENDENT COUNSEL.—
"(1) AUTHORITY.—Upon receipt of an application under sec-
tion 592(c), the division of the court shall appoint an appropriate
independent counsel and shall define that independent coun-
sel's prosecutorial jurisdiction.
"(2) QUALIFICATIONS OF INDEPENDENT COUNSEL.—The division
of the court shall appoint as independent counsel an individual
who has appropriate experience and who will conduct the inves-
tigation and any prosecution in a prompt, responsible, and cost-
effective manner. The division of the court shall seek to appoint
as independent counsel an individual who will serve to the
extent necessary to complete the investigation and any prosecu-
tion without undue delay. The division of the court may not
appoint as an independent counsel any person who holds any
office of profit or trust under the United States.
"(3) SCOPE OF PROSECUTORIAL JURISDICTION.—In defining the
independent counsel's prosecutorial jurisdiction, the division of
the court shall assure that the independent counsel has ade-
quate authority to fully investigate and prosecute the subject
matter with respect to which the Attorney General has re-
quested the appointment of the independent counsel, and all
matters related to that subject matter. Such jurisdiction shall
also include the authority to investigate and prosecute Federal
crimes, other than those classified as Class B or C misde-
meanors or infractions, that may arise out of the investigation or
prosecution of the matter with respect to which the Attorney
General's request was made, including perjury, obstruction of
justice, destruction of evidence, and intimidation of witnesses.
"(4) DISCLOSURE OF IDENTITY AND PROSECUTORIAL JURISDIC-
TION.—An independent counsel's identity and prosecutorial
jurisdiction (including any expansion under subsection (c)) 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
such independent counsel would be in the best interests of
justice. In any event, the identity and prosecutorial jurisdiction
..: >5,i of such 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) EXPANSION OF JURISDICTION.—
"(1) IN GENERAL.—The division of the court, upon the request
of the Attorney General, may expand the prosecutorial jurisdic-
tion of an independent counsel, and such expansion may be in
lieu of the appointment of another independent counsel.
"(2) PROCEDURE FOR REQUEST BY INDEPENDENT COUNSEL.—(A) If
the independent counsel discovers or receives information about
possible violations of criminal law by persons as provided in
section 591, which are not covered by the prosecutorial jurisdic-
tion of the independent counsel, the independent counsel may
submit such information to the Attorney General. The Attorney
General shall then conduct a preliminary investigation of the
information in accordance with the provisions of section 592,
, except that such preliminary investigation shall not exceed 3()
' days from the date such information is received. In making the
determinations required by section 592, the Attorney General
shall give great weight to any recommendations of the
independent counsel.
PUBLIC LAW 100-191—DEC. 15, 1987 101 STAT. 1299
"(B) If the Attorney General determines, after according great
weight to the recommendations of the independent counsel, that
there are no reasonable grounds to believe that further inves-
tigation 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 expand the jurisdiction of the independ-
ent counsel or to appoint another independent counsel with
respect to the matters involved.
"(C) If—
"(i) the Attorney General determines that there are
reasonable grounds to believe that further investigation is
warranted; or
"(ii) the 30-day period referred to in subparagraph (A)
elapses without a notification to the division of the court
that no further investigation is warranted,
the division of the court shall expand the jurisdiction of the
appropriate independent counsel to include the matters in-
volved or shall appoint another independent counsel to inves-
tigate such matters.
"(d) RETURN FOR FURTHER EXPLANATION.—Upon receipt of a
notification under section 592 or subsection (c)(2)(B) of this section
from the Attorney General that there are no reasonable 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 such determination.
"(e) VACANCIES.—If a vacancy in office arises by reason of the
resignation, death, or removal of an independent counsel, the divi-
sion 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 such removal is completed.
"(f) 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 such individual pursuant to
that investigation, award reimbursement for those reasonable
attorneys' fees incurred by that individual during that inves-
tigation which would not have been incurred but for the
requirements of this chapter. The division of the court shall
notify the Attorney General of any request for attorneys' fees
under this subsection.
"(2) EVALUATION OF FEES.—The division of the court may
direct the Attorney General to file a written evaluation of any
request for attorneys' fees under this subsection, analyzing for
each expense—
"(A) the sufficiency of the documentation;
"(B) the need or justification for the underlying item; and
"(C) the reasonableness of the amount of money
requested.
"(g) DISCLOSURE OF INFORMATION.—The division of the court may,
subject to section 594(h)(2), allow the disclosure of any notification,
101 STAT. 1300 PUBLIC LAW 100-191—DEC. 15, 1987
application, or any other document, material, or memorandum sup-
plied to the division of the court under this chapter.
"(h) AMICUS CURIAE BRIEFS.—When presented with significant
legal issues, the division of the court may disclose sufficient informa-
tion about the issues to permit the filing of timely amicus curiae
briefs.
28 use 594. "§ 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 such independent counsel's prosecu-
torial 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 inves-
tigative 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 such
independent counsel considers necessary;
; "(3) appealing any decision of a court in any case or proceed-
r' ing in which such independent counsel participates in an offi-
cial capacity;
; "(4) reviewing all documentary evidence available from any
source;
». "(5) determining whether to contest the assertion of any
testimonial privilege;
Defense and "(6) receiving appropriate national security clearances and, if
national >( necessary, contesting in court (including, where appropriate,
security. <x 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
f, 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 dis-
trict in which any violation of law with respect to which the
independent counsel is appointed was alleged to have occurred.
Wages. "Ot)) COMPENSATION.—An independent counsel appointed under
this chapter shall receive compensation at the per diem rate equal
PUBLIC LAW 100-191—DEC. 15, 1987 101 STAT. 1301
to the annual rate of basic pay payable for level IV of the Executive
Schedule under section 5315 of title 5.
"(c) ADDITIONAL PERSONNEL.—For the purposes of carrying out the
duties of an office of independent counsel, such independent counsel
may appoint, fix the compensation, and assign the duties of such
employees as such independent counsel considers necessary (includ-
ing investigators, attorneys, and part-time consultants). The posi-
tions of all such employees are exempted from the competitive
service. No such employee may be compensated at a rate exceeding Wages.
the maximum rate of pay payable for GS-18 of the General Sched-
ule under section 5332 of title 5.
"(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 such independent counsel's prosecutorial
jurisdiction, and the use of the resources and personnel nec-
essary to perform such independent counsel's duties.
"(2) PAYMENT OF AND REPORTS ON EXPENDITURES OF INDEPEND-
ENT 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 OTHER 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 matters
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 such referral if the matter
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.—
An independent counsel shall, except where not possible, comply
with the written or other established policies of the Department of
Justice respecting enforcement of the criminal laws.
"(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 consist-
ent 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.—
101 STAT. 1302 PUBLIC LAW 100-191—DEC. 15, 1987
>/:: "(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 appoint-
ment, 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 fully and completely a
description of the work of the independent counsel, includ-
ing the disposition of all cases brought, and the reasons for
not prosecuting any matter within the prosecutorial juris-
diction of such independent counsel.
"(2) DISCLOSURE OF INFORMATION IN REPORTS.—The division of
the court may release to the Congress, the public, or any
appropriate person, such portions of a report made under this
subsection as the division of the court considers appropriate.
The division of the court shall make such orders as are appro-
priate to protect the rights of any individual named in such
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 such report for the purposes of receiving
within a time limit set by the division of the court any com-
ments or factual information that such 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 such final report.
"(i) INDEPENDENCE FROM DEPARTMENT OF JUSTICE.—Each
independent counsel appointed under this chapter, and the persons
appbinted by that independent counsel under subsection (c), are
separate from and independent 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 COUN-
SEL AND APPOINTEES ARE SERVING.—(A) During the period in
which an independent counsel is serving under this chapter—
"(i) such independent counsel, and
"(ii) any person associated with a firm with which such
independent counsel is associated,
may not represent in any matter any person involved in any
investigation or prosecution under this chapter.
"(B) During the period in which any person appointed by an
independent counsel under subsection (c) is serving in the office
of independent counsel, such 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.—(A) Each independent counsel and each
person appointed by that independent counsel under subsection
(c) may not, for 3 years following the termination of the service
under this chapter of that independent counsel or appointed
PUBLIC LAW 100-191—DEC. 15, 1987 101 STAT. 1303
person, as the case may be, represent any person in any matter
if that individual was the subject of an investigation or prosecu-
tion under this chapter that was conducted by that independent
counsel.
"(B) Each independent counsel and each person appointed by
that independent counsel under subsection (c) may not, 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 be-
comes associated after termination of the service of that
independent counsel under this chapter may not, for 1 year
following such 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.
"(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 Defense and
independent counsel shall clearly identify which of these national
records are subject to rule 6(e) of the Federal Rules of Criminal security.
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
such records.
"(2) MAINTENANCE, USE, AND DISPOSAL OF RECORDS.—Records
transferred to the Archivist under this chapter shall be main-
tained, 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, such records shall be so disclosed only by order of
S'S 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
101 STAT. 1304 PUBLIC LAW 100-191—DEC. 15, 1987
by the National Archives and Records Administration who
are engaged in the performance of normal archival work
IV'^r} shall be permitted access to the records transferred to the
Archivist under this chapter.
"(4) RECORDS PROVIDED BY CONGRESS.—Records of an investiga-
tion 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
aivir. 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
3i if provided in paragraph (3) (B) and (C), in accordance with
IB6V IY^Q 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.
28 use 595. "§ 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 such independent counsel shall have the duty
to cooperate with the exercise of such oversight jurisdiction.
"(2) REPORTS TO CONGRESS.—An independent counsel ap-
, .;.. .., pointed under this chapter shall submit to the Congress such
statements or reports on the activities of such independent
counsel as the independent counsel considers appropriate.
"(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 Gen-
eral shall provide the following information to that committee with
respect to that 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 such filing.
"(c) INFORMATION RELATING TO IMPEACHMENT.—An independent
counsel shall advise the House of Representatives of any substantial
and credible information which such independent counsel receives,
in carrying out the independent counsel's responsibilities under this
chapter, that may constitute grounds for an impeachment. Nothing
in this chapter or section 49 of this title shall prevent the Congress
or either House thereof from obtaining information in the course of
an impeachment proceeding.
28 use 596. "§ 596. Removal of an independent counsel; termination of office
"(a) REMOVAL; REPORT ON REMOVAL.—
"(1) GROUNDS FOR REMOVAL.—An independent counsel ap-
• ^< pointed under this chapter may be removed from office, other
PUBLIC LAW 100-191—DEC. 15, 1987 101 STAT. 1305
than by impeachment and conviction, only by the personal
action of the Attorney General and only for good cause, physical
disability, mental incapacity, or any other condition that
substantially impairs the performance of such independent
counsel's duties.
"(2) REPORT TO DIVISION OF THE COURT AND CONGRESS.—If an
independent counsel is removed from office, the Attorney Gen-
eral 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 such removal. The committees shall make Public
available to the public such report, except that each committee information.
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
such report in accordance with section 594(h)(2).
"(3) JUDICIAL REVIEW OF REMOVAL.—An independent counsel District of
removed from office may obtain judicial review of the removal Columbia.
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 Gen-
eral that the investigation of all matters within the pros-
ecutorial jurisdiction of such independent counsel or
" •*^' accepted by such independent counsel under section 594(e),
and any resulting prosecutions, have been completed or so
I '3 substantially completed that it would be appropriate for the
Department of Justice to complete such investigations and
,f 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 coun-
sel at any time, on the ground that the investigation of all
matters within the prosecutorial jurisdiction of such independ-
ent counsel or accepted by such 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 such
investigations and prosecutions. At the time of such termi- Reports.
nation, the independent counsel shall file the final report re-
quired by section 594(h)(1)(B).
"(c) AUDITS.—After the termination of the office of an independent Reports.
counsel, the Comptroller General shall conduct an audit of the
expenditures of that office, and shall submit to the appropriate
committees of the Congress a report on the audit.
101 STAT. 1306 PUBLIC LAW 100-191—DEC. 15, 1987
28 use 597. "§ 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 coun-
sel 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
such matter, except to the extent required by section 594(d)(1), and
except insofar as such independent counsel agrees in writing that
such investigation or proceedings may be continued by the Depart-
ment 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.
28 use 598. "§ 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 such provision to other persons not similarly
situated or to other circumstances shall not be affected by such
invalidation.
28 use 599. "§ 599. Termination of effect of chapter ,.,.^.
"This chapter shall cease to be effective five years after the date of
the enactment of the Independent Counsel Reauthorization Act of
1987, except that this chapter shall continue in effect with respect
to then pending matters before an independent counsel that in
the judgment of such counsel require such continuation until that
independent counsel determines such matters have been
completed.".
SEC. 3. STATUS OF INDEPENDENT COUNSEL AS A SPECIAL GOVERNMENT
EMPLOYEE; FINANCIAL DISCLOSURE REQUIREMENTS.
(a) AMENDMENT TO TITLE 18.—The first sentence of section 202(a)
of title 18, United States Code, is amended—
(1) by striking out "or" after "United States commissioner"
and inserting in lieu thereof a comma; and
(2) by striking out the period at the end of the sentence and
inserting in lieu thereof the following: ", or, regardless of the
number of days of appointment, an independent counsel ap-
pointed under chapter 40 of title 28 and any person appointed
by that independent counsel under section 594(c) of title 28.".
(b) FINANCIAL DISCLOSURE REQUIREMENTS.—
(1) FILING OF REPORTS.—Section 203(b) of the Ethics in Govern-
5 use app. ment Act of 1978 is amended by striking out "and the Vice
President" and inserting in lieu thereof ", the Vice President,
and independent counsel and persons appointed by independent
counsel under chapter 40 of title 28".
Reports. « (2) LIMITATION ON PUBLIC DISCLOSURE.—(A) Section 203(d) of
the Ethics in Government Act of 1978 is amended by inserting
before the period at the end thereof the following: ", except that
any report filed by an independent counsel whose identity has
not been disclosed by the division of the court under chapter 40
PUBLIC LAW 100-191—DEC. 15, 1987 101 STAT. 1307
of title 28, and any report filed by any person appointed by that
independent counsel under such chapter, shall not be made
available to the public under this title".
(B) Section 205(a) of the Ethics in Government Act of 1978 is 5 USC app.
amended by striking out "Each" in the first sentence and
inserting in lieu thereof "Except as provided in section 203(d) of
this Act, each".
SEC. 4. CLERK OF THE DIVISION OF THE COURT.
Section 49(a) of title 28, United States Code, is amended by adding
at the end thereof the following: "The Clerk of the United States
Court of Appeals for the District of Columbia Circuit shall serve as
the clerk of such division of the court and shall provide such services
as are needed by such division of the court.".
SEC. 5. TECHNICAL AMENDMENTS.
(a) TITLE 28, UNITED STATES CODE.—Section 49(f) of title 28, United
States Code, is amended by striking out "a independent" and insert-
ing in lieu thereof "an independent".
(b) CONTINGENCY FUND.—Section 601(c) of the Ethics in Govern-
ment Act of 1978 (28 U.S.C. 591 note) is amended by striking out "39
(relating to special prosecutor)" and inserting in lieu thereof "40
(relating to independent counsel)".
SEC. 6. EFFECTIVE DATE. 28 USC 591 note.
(a) IN GENERAL.—Subject to subsection (h), the amendments made
by this Act take effect on the date of the enactment of this Act.
(b) PENDING PROCEEDINGS.—With respect to any proceeding under
chapter 39 of title 28, United States Code (before the redesignation
of such chapter as chapter 40 by section 144(g) of Public Law 99-
554), or under chapter 40 of such title (after such redesignation),
which is pending on the date of the enactment of this Act, the
following shall apply:
(1) Except as provided in paragraphs (2) and (3), the provisions
of chapter 40 of such title as in effect on the day before such
date of enactment shall, in lieu of the amendments made by this
Act, continue to apply on or after such date to such proceeding
until such proceeding is terminated in accordance with such
chapter.
(2) The following provisions shall apply to such proceeding on
or after such date of enactment:
(A) Section 593(f) of title 28, United States Code, as
amended by section 2 of this Act, relating to the award of
attorneys' fees.
(B) Section 594(d)(2) of such title, as added by section 2 of Reports,
this Act, to the extent that such section 594(dX2) relates to
reports by the Attorney General on expenditures by
independent counsel, except that the first such report shall
be made only with respect to expenditures on or after the
date of the enactment of this Act.
(C) Section 594(h)(1)(A) of such title, as added by section 2 Reports,
of this Act, relating to reports by independent counsel,
except that the 6-month periods described in such section
594(h)(1)(A) shall be calculated from the date of the enact-
ment of this Act.
91-194 O - 90 - 11 : QL.3 Part 2
101 STAT. 1308 PUBLIC LAW 100-191—DEC. 15, 1987
(D) Section 594(i) of such title, as added by section 2 of
« this Act, relating to the independence of the office of
independent counsel for certain purposes.
; (E) Section 594(k) of such title, as added by section 2 of
this Act, relating to custody of records of independent
•f counsel.
(F) Section 596(a)(3) of such title, as amended by section 2
of this Act, relating to judicial review of the removal of an
independent counsel from office.
(G) Section 596(c) of such title, as added by section 2 of
this Act, relating to audits of expenditures of independent
counsel.
(H) The amendments made by section 3 of this Act,
relating to the status of independent counsel and their
appointees as special government employees and to their
financial disclosure requirements.
^ "^ (3) Section 594(j) of title 28, United States Code, as added by
" section 2 of this Act, relating to certain standards of conduct
shall, 90 days after the date of the enactment of this Act, apply
to a pending proceeding described in this subsection.
Approved December 15, 1987.
LEGISLATIVE HISTORY—H.R. 2939 (S. 1293):
HOUSE REPORTS: No. 100-316 (Comm. on the Judiciary).
SENATE REPORTS: No. 100-123 accompanying S. 1293 (Comm. on Governmental
Affairs).
CONGRESSIONAL RECORD, Vol. 133 (1987):
Oct. 16, S. 1293 considered in Senate.
Oct. 21, H.R. 2939 considered and passed House.
Nov. 3, considered and passed Senate, amended, in lieu of S. 1293.
Nov. 20, Senate agreed to conference report.
Dec. 2, House agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 23 (1987):
Dec. 15, Presidential statement.
