skip to main content

S. 3582: Political CRIMES Act


The text of the bill below is as of Feb 3, 2022 (Introduced).


II

117th CONGRESS

2d Session

S. 3582

IN THE SENATE OF THE UNITED STATES

February 3, 2022

(for herself, Mr. Merkley, and Mr. Markey) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

A BILL

To establish an Independent Counsel on Pernicious Political Activities, and for other purposes.

1.

Short title

This Act may be cited as the Political Corruption Review of Infractions for Misconduct by Executive Servants Act or the Political CRIMES Act.

2.

Independent Counsel on Pernicious Political Activities

(a)

Applicability of provisions of this section

(1)

Preliminary investigation with respect to certain covered persons

The Attorney General shall conduct a preliminary investigation in accordance with subsection (b) whenever the Attorney General receives information sufficient to constitute grounds to investigate whether any person described in paragraph (2) may have violated, between January 20, 2009 and January 21, 2021—

(A)

section 7323 or 7324 of title 5, United States Code, as amended by this Act; or

(B)

section 610 of title 18, United States Code.

For purposes of this section, such a violation shall be referred to as a covered violation.
(2)

Persons to whom paragraph (1) applies

The persons referred to in paragraph (1) are—

(A)

the President and Vice President;

(B)

any individual serving in a position listed in section 5312 of title 5, United States Code;

(C)

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, United States Code;

(D)

any Assistant Attorney General and any individual working 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, United States Code;

(E)

the Director of Central Intelligence, the Deputy Director of Central Intelligence, and the Commissioner of Internal Revenue; and

(F)

for a period of 1 year after leaving an office or position described in subparagraph (A), (B), (C), (D), or (E), each individual who held such office or position.

(3)

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 subsection (b) if the Attorney General receives information sufficient to constitute grounds to investigate whether that person may have committed a covered violation.

(4)

Examination of information to determine need for preliminary investigation

(A)

Factors to be considered

In determining whether grounds to investigate exist, the Attorney General shall consider only—

(i)

the specificity of the information received; and

(ii)

the credibility of the source of the information.

(B)

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, and submit a report, not later than 7 days thereafter to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives. 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.

(5)

Recusal of Attorney General

(A)

When recusal is required

(i)

If information received under this section involves the Attorney General, the Attorney General shall recuse themselves by designating the next most senior official in the Department of Justice who is not also recused to perform the duties assigned under this section to the Attorney General.

(ii)

If information received under this section involves a person with whom the Attorney General has a personal or financial relationship, the Attorney General shall recuse themselves by designating the next most senior official in the Department of Justice who is not also recused to perform the duties assigned under this section to the Attorney General.

(B)

Requirements for recusal determination

Before personally making any other determination under this section with respect to information received under this section, the Attorney General shall determine under subparagraph (A)(ii) 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 section with respect to such information.

(b)

Preliminary investigation and application for appointment of an independent counsel

(1)

Conduct of preliminary investigation

(A)

In general

A preliminary investigation conducted under this section shall be of such matters as the Attorney General considers appropriate in order to make a determination, under paragraph (2) or (3), on whether further investigation is warranted, with respect to each potential covered violation, or allegation of a covered violation. 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 congressional request under paragraph (7), 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 subsection (c) of the commencement of such preliminary investigation and the date of such commencement.

(B)

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 60 days, of the 90-day period referred to in subparagraph (A). The division of the court may, upon a showing of good cause, grant such extension.

(2)

Determination that further investigation not warranted

(A)

Notification of division of the court

If the Attorney General, upon completion of a preliminary investigation under this section, 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. The division of the court shall issue a report in agreement with the Attorney General’s investigation. The Inspector General of the Department of Justice shall review the Attorney General’s determination to not continue an investigation and provide notification to the appropriate congressional committees that such an investigation is underway within 3 days after the Attorney General’s determination.

(B)

Form of notification

Such notification shall contain a summary of the information received and a summary of the results of the preliminary investigation.

(3)

Determination that further investigation is warranted

(A)

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—

(i)

the Attorney General, upon completion of a preliminary investigation under this section, determines that there are reasonable grounds to believe that further investigation is warranted; or

(ii)

the 90-day period referred to in paragraph (1)(A), and any extension granted under paragraph (1)(C), have elapsed and the Attorney General has not filed a notification with the division of the court under paragraph (2)(A).

In determining under this section 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 criminal investigations.
(B)

Receipt of additional information

If, after submitting a notification under paragraph (2)(A), the Attorney General receives additional information sufficient to constitute grounds to investigate the matters to which such notification related, the Attorney General shall—

(i)

conduct such additional preliminary investigation as the Attorney General considers appropriate for a period of not more than 90 days after the date on which such additional information is received; and

(ii)

otherwise comply with the provisions of this subsection with respect to such additional preliminary investigation to the same extent as any other preliminary investigation under this section.

(4)

Contents of application

Any application for the appointment of an independent counsel under this section 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 related to that subject matter.

(5)

Disclosure of information

Except as otherwise provided in this section 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 such office any notification, application, or any other document, materials, or memorandum supplied to the division of the court under this section. Nothing in this section shall be construed as authorizing the withholding of information from the Congress.

(6)

Limitation on Judicial Review

The Attorney General’s determination under this section to apply to the division of the court for the appointment of an independent counsel shall not be reviewable in any court.

(7)

Congressional Request

(A)

By judiciary committee or members thereof

The Committee on the Judiciary of either House of the Congress, or a majority of majority party members of either such committee, may request in writing that the Attorney General apply for the appointment of an independent counsel.

(B)

Report by attorney general pursuant to request

Not later than 30 days after the receipt of a request under subparagraph (A), 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 section of the matters with respect to which the request is made, in accordance with paragraph (1) or (3) of subsection (a), 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.

(C)

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 subparagraph (A), such 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 subsection 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.

(D)

Disclosure of information

Any report, notification, application, or other document, material, or memorandum supplied to a committee under this paragraph 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, notification, application, document, material, or memorandum as will not in the committee’s judgment prejudice the rights of any individual.

(c)

Duties of the Division of the Court

(1)

Reference to division of the court

The division of the court to which this Act refers is the division established under section 49 of title 28, United States Code. A division shall be so established if not in effect on the date of enactment of this Act.

(2)

Appointment and Jurisdiction of Independent Counsel

(A)

Authority

Upon receipt of an application under subsection (b)(3), the division of the court shall appoint an appropriate independent counsel and shall define that independent counsel's prosecutorial jurisdiction.

(B)

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 investigation 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 prosecution 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.

(C)

Scope of Prosecutorial Jurisdiction

In defining the independent counsel's prosecutorial jurisdiction, the division of the court shall assure that the independent counsel has adequate authority to fully investigate and prosecute covered violations. Such jurisdiction shall also include the authority to investigate and prosecute Federal crimes, other than those classified as Class B or C misdemeanors 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.

(D)

Disclosure of Identity and Prosecutorial Jurisdiction

An independent counsel's identity and prosecutorial jurisdiction (including any expansion under paragraph (3)) 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 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.

(3)

Return for further investigation

Upon receipt of a notification from the Attorney General that there are no reasonable grounds to believe that further investigation is warranted with respect to information received under this section, 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.

(4)

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 such removal is completed. If the independent counsel is removed, the division of the court shall report on such removal to the appropriate congressional committees not later than 3 days thereafter.

(5)

Attorney’s Fees

(A)

Award of fees

Upon the request of an individual who is the subject of an investigation conducted by an independent counsel pursuant to this section, 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 investigation which would not have been incurred but for the requirements of this Act. 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 paragraph.

(B)

Evaluation of fees

The division of the court shall direct such independent counsel and the Attorney General to file a written evaluation of any request for attorneys' fees under this subsection, addressing—

(i)

the sufficiency of the documentation;

(ii)

the need or justification for the attorneys' fees;

(iii)

whether the attorneys' fees would have been incurred but for the requirements of this section; and

(iv)

the reasonableness of the amount of money requested.

(6)

Disclosure of information

The division of the court may, subject to subsection (d)(8)(B), allow the disclosure of any notification, application, or any other document, material, or memorandum supplied to the division of the court under this section.

(7)

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.

(d)

Authorities and duties of an independent counsel

(1)

Authorities

Notwithstanding any other provision of law, an independent counsel appointed under this section shall have, with respect to all matters in such independent counsel's prosecutorial jurisdiction established under this section, 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, United States Code. Such investigative and prosecutorial functions and powers shall include—

(A)

conducting proceedings before grand juries and other investigations;

(B)

participating in court proceedings and engaging in any litigation, including civil and criminal matters that such independent counsel considers necessary;

(C)

appealing any decision of a court in any case or proceeding in which such independent counsel participates in an official capacity;

(D)

reviewing all documentary evidence available from any source;

(E)

determining whether to contest the assertion of any testimonial privilege;

(F)

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

(G)

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, United States Code, exercising the authority vested in a United States attorney or the Attorney General;

(H)

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;

(I)

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

(J)

consulting with the United States attorney for the district in which any covered violation was alleged to have occurred.

(2)

Compensation

(A)

In general

An independent counsel appointed under this Act shall receive compensation at the per diem rate equal to the annual rate of basic pay payable for level IV of the Executive Schedule under section 5315 of title 5, United States Code.

(B)

Travel expenses

Except as provided in subparagraph (C), an independent counsel and persons appointed under paragraph (3) 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 such title 5.

(C)

Travel to primary office

(i)

In general

After 1 year of service under this section, an independent counsel and persons appointed under paragraph (3) 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 section.

(ii)

Relevant factors

In making any certification under this subparagraph with respect to travel and subsistence expenses of an independent counsel or person appointed under paragraph (3), the independent counsel and the division of the court shall consider, among other relevant factors—

(I)

the cost to the Government of reimbursing such 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 such travel and subsistence expenses would not be incurred; and

(IV)

the burdens associated with appointing a new independent counsel, or appointing another person under paragraph (3), to replace the individual involved who is unable or unwilling to so relocate.

(3)

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 (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, United States Code, as adjusted for the District of Columbia under section 5304 of that title regardless of the locality in which an employee is employed.

(4)

Assistance of Department of Justice

(A)

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 necessary to perform such 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.

(B)

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 subsection (c)(2)(D).

(5)

Referral of other matters

(A)

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.

(B)

Referral of other matters to the Attorney General

If an independent counsel appointed under this section finds a violation of the law other than a covered violation, the independent counsel shall—

(i)

refer the matter to the Attorney General;

(ii)

refer the matter to any relevant state or local law enforcement official; and

(iii)

not later than 7 days after discovery of the violation, submit a report to Congress.

(6)

Compliance with policies of the Department of Justice

(A)

In general

An independent counsel shall, except to the extent that to do so would be inconsistent with the purposes of this section, comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws. To determine these policies and policies under paragraph (12)(A)(ii), the independent counsel shall, except to the extent that doing so would be inconsistent with the purposes of this section, consult with the Department of Justice.

(B)

National security

An independent counsel shall comply with guidelines and procedures used by the Department in the handling and use of classified material.

(7)

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. The independent counsel shall report, not later than 3 days thereafter, on any such dismissal, to the appropriate committees of Congress.

(8)

Reports by independent counsel

(A)

Required reports

An independent counsel shall—

(i)

file with the division of the court, with respect to the 6-month period beginning on the date of that counsel’s 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

(ii)

before the termination of the independent counsel's office under subsection (f)(2), file a final report with the division of the court, setting forth fully and completely a description of the work of the independent counsel, including the disposition of all cases brought.

(B)

Disclosure of information in reports

The division of the court shall release to the Congress, and may release to the public, or any appropriate person, such portions of a report made under this paragraph as the division of the court considers appropriate. The division of the court shall make such orders as are appropriate 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 subparagraph (A)(ii) 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 comments 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.

(C)

Publication of reports

At the request of an independent counsel, the Director of the Government Publishing Office shall cause to be printed any report previously released to the public under subparagraph (B). The independent counsel shall certify the number of copies necessary for the public, and the Director of the Government Publishing Office shall place the cost of the required number to the debit of such 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, United States Code. Such report shall be considered to be publicly available if it is available to the public online in an electronic searchable format.

(9)

Independence from Department of Justice

Each independent counsel appointed under this section, and the persons appointed by that independent counsel under paragraph (3), are separate from and independent of the Department of Justice for purposes of sections 202 through 209 of title 18, United States Code.

(10)

Standards of conduct applicable to independent counsel, persons serving in the office of an independent counsel, and their law firms

(A)

Restrictions on employment while independent counsel and appointees are serving

(i)

During the period in which an independent counsel is serving under this section, such independent counsel and 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 section.

(ii)

During the period in which any person appointed by an independent counsel under paragraph (3) 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 section.

(B)

Post employment restrictions on independent counsel and appointees

(i)

Each independent counsel and each person appointed by that independent counsel under paragraph (3) may not, for 3 years following the termination of the service under this section 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 section that was conducted by that independent counsel.

(ii)

Each independent counsel and each person appointed by that independent counsel under paragraph (3) may not, for 1 year following the termination of the service under this section 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 section.

(C)

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 section may not, for 1 year following such termination, represent any person in any matter involving any investigation or prosecution under this section.

(D)

Definitions

For purposes of this paragraph—

(i)

the term firm means a law firm whether organized as a partnership or corporation; and

(ii)

a person is associated with a firm if that person is an officer, director, partner, or other member or employee of that firm.

(E)

Enforcement

The Attorney General and the Director of the Office of Government Ethics have authority to enforce compliance with this paragraph.

(11)

Custody of records of an independent counsel

(A)

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 date of enactment of this Act, 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.

(B)

Maintenance, use, and disposal of records

Records transferred to the Archivist under this section shall be maintained, used, and disposed of in accordance with chapters 21, 29, and 33 of title 44, United States Code.

(C)

Access to records

(i)

In general

Subject to subparagraph (D), access to the records transferred to the Archivist under this section shall be governed by section 552 of title 5, United States Code.

(ii)

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 the court of jurisdiction under rule 6(e) of the Federal Rules of Criminal Procedure.

(iii)

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 section.

(D)

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—

(i)

shall be maintained as a separate body of records within the records of the independent counsel; and

(ii)

shall, after the records have been transferred to the Archivist under this section, be made available, except as provided in subparagraph (C)(ii) and (iii), in accordance with the rules governing release of the records of the House of Congress that provided the records to the independent counsel.

Clause (ii) shall not apply to those records which have been surrendered pursuant to grand jury or court proceedings.
(12)

Cost Controls and Administrative Support

(A)

Cost Controls

(i)

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.

(ii)

Liability for invalid certification

An employee making a certification under clause (i)(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, United States Code.

(iii)

Department of Justice policies

An independent counsel shall comply with the established policies of the Department of Justice respecting expenditures of funds, except to the extent that compliance would be inconsistent with the purposes of this section.

(B)

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.

(C)

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. Such office space shall be within a Federal building unless the Administrator of General Services determines that other arrangements would cost less. Until such 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.

(e)

Congressional oversight

(1)

Oversight of conduct of independent counsel

(A)

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 section, and such independent counsel shall have the duty to cooperate with the exercise of such oversight jurisdiction.

(B)

Reports to Congress

An independent counsel appointed under this section 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. Such 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.

(2)

Oversight of conduct of Attorney General

Within 15 days after receiving an inquiry about a particular case under this section, which is a matter of public knowledge, from a committee of the Congress with jurisdiction over this section, the Attorney General shall provide the following information to that committee with respect to that case:

(A)

When the information about the case was received.

(B)

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

(C)

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.

(3)

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 section, that may constitute grounds for an impeachment. Nothing in this section or section 49 of title 28, United States Code, shall prevent the Congress or either House thereof from obtaining information in the course of an impeachment proceeding.

(f)

Removal of an independent counsel; termination of office

(1)

Removal; report on removal

(A)

Grounds for removal

An independent counsel appointed under this section 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 substantially impairs the performance of such independent counsel's duties.

(B)

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 such removal. The committees shall make available to the public such 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 such report in accordance with subsection (d)(8)(B).

(C)

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.

(2)

Termination of office

(A)

Termination by action of independent counsel

An office of independent counsel shall terminate when—

(i)

the independent counsel notifies the Attorney General that the investigation of all matters within the prosecutorial jurisdiction of such independent counsel or accepted by such independent counsel under subsection (d)(5), 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; and

(ii)

the independent counsel files a final report in compliance with subsection (d)(8)(A)(ii).

(B)

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 such independent counsel or accepted by such independent counsel under subsection (d)(5), 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 termination, the independent counsel shall file the final report required by subsection (d)(8)(A)(ii). If the Attorney General has not made a request under this subparagraph, 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, at the end of the succeeding 2-year period, and thereafter at the end of each succeeding 1-year period.

(3)

Audits

(A)

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.

(B)

The Comptroller General of the United States shall—

(i)

conduct a financial review of a mid-year statement and a financial audit of a year-end statement and statement on termination; and

(ii)

report the results to the Committee on the Judiciary, Committee on Homeland Security and Governmental Affairs, and Committee on Appropriations of the Senate and the Committee on the Judiciary, Committee on Oversight and Reform, and Committee on Appropriations of the House of Representatives not later than 90 days following the submission of each such statement.

(g)

Relationship with Department of Justice

(1)

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 subsection (d)(5), 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 subsection (d)(4)(A), and except insofar as such independent counsel agrees in writing that such investigation or proceedings may be continued by the Department of Justice.

(2)

Presentation as Amicus Curiae permitted

Nothing in this section 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.

(h)

Severability

If any provision of this section or the application thereof to any person or circumstance is held invalid, the remainder of this section and the application of such provision to other persons not similarly situated or to other circumstances shall not be affected by such invalidation.

(i)

Termination of effect of section

This section shall cease to be effective five years after the date of enactment of this Act, except that this section 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.

3.

Inspector General for the Office of Special Counsel

(a)

Establishment

Section 12 of the Inspector General Act of 1978 (5 U.S.C. App.) is amended—

(1)

in paragraph (1), by striking or the Director of the National Reconnaissance Office and inserting the Director of the National Reconnaissance Office; or the Special Counsel; and

(2)

in paragraph (2), by striking or the National Reconnaissance Office and inserting the National Reconnaissance Office, or the Office of Special Counsel.

(b)

Appointment of Inspector General

Not later than 120 days after the date of the enactment of this Act, the President shall appoint an individual as the Inspector General of the Office of Special Counsel in accordance with the requirements of section 3(a) of the Inspector General Act of 1978 (5 U.S.C. App.).

(c)

Removal for cause only

The Inspector General of the Office of Special Counsel may only be removed by the President for cause.

4.

Strengthening the Hatch Act

(a)

Presentment of Hatch Act violations to MSPB

Section 1215 of title 5, United States Code, is amended—

(1)

by striking (b) In and inserting (b)(1) In; and

(2)

by adding at the end the following:

(2)

Paragraph (1) shall not apply to any determination by the Special Counsel with respect to a violation of subchapter III of chapter 73 (commonly referred to as the Hatch Act). Any complaint and statement referred to in subsection (a)(1), together with any response of the employee, regarding such a violation shall be presented to the Merit Systems Protection Board in accordance with subsection (a). This paragraph applies notwithstanding any other provision of law governing the employment or compensation of employees or officials in the White House Office.

.

(b)

Disclosure of Hatch Act investigations for certain political employees

Section 1216 of title 5, United States Code, is amended by adding at the end the following:

(d)

With respect to any investigation of an allegation of prohibited activity under subsection (a)(1) against a political employee, the Special Counsel shall publish, on the Office of Special Counsel’s website, the Special Counsel’s final determination under such investigation with respect to whether a violation occurred. In this subsection, the term political employee means any individual occupying any of the following positions in the executive branch of Government (including an individual carrying out the duties of a position described in paragraph (1) in an acting capacity):

(1)

Any position required to be filled by an appointment by the President by and with the advice and consent of the Senate.

(2)

Any position in the executive branch of the Government of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations.

(3)

Any position in or under the Executive Office of the President.

.

(c)

Clarification on candidates visiting Federal property

(1)

In general

Section 7323 of title 5, United States Code, is amended by adding at the end the following:

(d)

Nothing in this section or section 7324 shall be construed to prohibit an employee from allowing a Member of Congress or any other elected official from visiting Federal facilities for an official purpose, including receiving briefings, tours, or other official information.

.

(2)

Technical and conforming amendments

Such section 7323 is further amended—

(A)

in subsection (a)(1), by striking his and inserting the employee’s; and

(B)

in subsection (c)—

(i)

by striking he and inserting the employee; and

(ii)

by striking his and inserting the employee’s.

(d)

Elimination of exception for political appointees

Section 7324 of title 5, United States Code, is amended—

(1)

by striking (a) An employee and inserting An employee; and

(2)

by striking subsection (b).

(e)

Applying Hatch Act to President and Vice President while on Federal property

(1)

In general

Subchapter III of chapter 73 of title 5, United States Code, is amended by redesignating section 7326 as section 7327 and by inserting after section 7325 the following:

7326.

Limitations on political activity of President and Vice President while on Federal property

Notwithstanding section 7322(1), the prohibitions on political activity under section 7323(a) and section 7324 shall apply to the President and Vice President while the President and Vice President are on Federal property. In this section, the term Federal property includes any vehicle, building, or land owned or leased by the Federal Government, including the White House and White House grounds (including the Executive Residence and the Rose Garden).

.

(2)

Clerical amendment

The table of sections of such subchapter is amended by striking the item relating to section 7326 and inserting the following:

7326. Limitations on political activity of President and Vice President while on Federal property.

7327. Penalties.

.

(f)

Criminal penalty

(1)

In general

Subchapter III of chapter 73 of title 5, United States Code, as amended by subsection (e)(1), is further amended by adding after section 7327 the following:

7328.

Criminal penalty for Hatch Act violations

(a)

In general

Any person who knowingly violates section 7323 or 7324 shall be fined $5,000 (notwithstanding section 3571(e) of title 18), or imprisoned for not more than 5 years, or both. Notwithstanding section 3571(e) of title 18, for each violation after the first, the fine applicable under this section shall be double the amount of the fine assessed for the previous violation.

(b)

Attorney fees

A court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which an employee has established, by a preponderance of the evidence, that a superior ordered or otherwise coerced the employee into taking any act that resulted in a violation of such section 7323 or 7324.

.

(2)

Clerical amendment

The table of sections of such subchapter, as amended by subsection (e)(2), is further amended by inserting after the item relating to section 7327 the following:

7328. Criminal penalty for Hatch Act violations.

.

(3)

Training

After an individual’s first violation of section 7323 or 7324 of title 5, United States Code, such individual shall be provided training by the employing agency on how to avoid subsequent violations of either such section.

5.

GAO review of reimbursable political events

Not later than 60 days after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on reimbursable political events held at the White House or on the White House grounds during the period beginning on January 1, 1997, and ending on the date of enactment of this Act. Such report shall include the following:

(1)

Whether, during such period, the requirements in annual appropriations Acts with respect to reimbursable political events have been followed, including the requirements under the heading Executive Residence At the White House—Reimbursable Expenses in division D of Public Law 116–6.

(2)

An assessment of what constitutes a political event during such period.

(3)

Whether an event that was not classified as a political event during such period should have been classified as such an event.

(4)

A review of any payment made by a political entity under the terms of such requirements.

(5)

Recommendations for Congress on—

(A)

a definition for the term political event; and

(B)

how to assess whether administrations are following such requirements and how to hold administrations accountable if such requirements are not followed.