[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 117 Introduced in House (IH)]







105th CONGRESS
  1st Session
                                H. R. 117

To reauthorize the independent counsel statute, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 7, 1997

 Mr. Conyers introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To reauthorize the independent counsel statute, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Independent Counsel Accountability 
and Reform Act of 1997''.

SEC. 2. EXTENSION.

    Section 599 of title 28, United States Code, is amended by striking 
``Reauthorization Act of 1994'' and inserting ``Accountability and 
Reform Act of 1997''.

SEC. 3. APPOINTMENT AUTHORITY.

    (a) Division.--Section 49 of title 28, United States Code, is 
amended by adding at the end the following:
    ``(g) One member of such division of the court must have been 
appointed to the Federal bench by a President of a different political 
party than the President who appointed the other 2 members of such 
division.
    ``(h) The District Court of the District of Columbia shall have 
jurisdiction over members of such division with respect to matters 
regarding the appointment or activities of an independent counsel.''.
    (b) Code of Conduct for Judges.--Section 593(b)(1) of title 28, 
United States Code, is amended by adding at the end the following: 
``The division of the court appointed by the Chief Justice of the 
United States to appoint independent counsels shall comply with the 
Code of Conduct for United States Judges.''.
    (c) Ex Parte Communication.--Section 593(b)(1) of title 28, United 
States Code, as amended by subsection (b), is amended by adding at the 
end the following: ``In determining the qualifications of a candidate 
to be appointed as independent counsel, the special division may 
solicit and receive oral and written ex parte communications if the 
fact of such communications are in writing or are memorialized by a 
writing. All such writings shall become public documents at such time 
as the special division, in the exercise of its discretion, deems 
appropriate, except that the division may, for good cause, redact any 
portion of such writings.
    (d) Limitation on Initial Investigation.--Section 593(b) of title 
28, United States Code, is amended by adding at the end the following:
    ``(5) The court shall appoint the independent counsel for an 
initial period not to exceed 6 months after which the independent 
counsel shall report back to the court with a recommendation as to 
whether further investigation is necessary, whether the matter should 
be dispensed with, or whether the matter may be appropriately referred 
to the Department of Justice. If the independent counsel recommends 
further investigation and the court determines that further 
investigation is appropriate, the court shall direct the independent 
counsel to pursue the investigation and the appointment of the 
independent counsel shall be extended to the completion of the 
investigation.''.
    (e) Considerations.--Section 593(b)(2) of title 28, United States 
Code, is amended by adding at the end the following: ``In making an 
appointment of an individual to be an independent counsel for an 
investigation, the division of the court shall consider the following 
factors:
            ``(A) Whether the division should require such individual 
        to refrain from other professional employment during all or 
        some of the period of the individual's service as independent 
        counsel.
            ``(B) Whether the nature of the individual's continued 
        employment during any period that the individual is also 
        serving as independent counsel creates, or is likely to lead 
        to, a conflict of interest between the individual's duties to 
        the United States and the individual's duties to the 
        individual's clients or others.
            ``(C) Whether the individual or any person professionally 
        associated with the individual is then acting or has acted as a 
        lawyer on behalf of a private party or government entity in any 
        matter in which the interest of such party or entity are or 
        were adverse to the interests of any of the subjects of the 
        independent counsel's investigation.
            ``(D) Whether any other facts in the individual's 
        professional business or private life would raise a reasonable 
        question about the appearance of independence of the individual 
        as independent counsel.
            ``(E) Whether the individual has substantial prosecutorial 
        experience.
The division of the court shall issue an opinion explaining its 
application of this paragraph to the appointment of the independent 
counsel and explaining any other issues considered in making the 
appointment.''.

SEC. 4. BASIS FOR PRELIMINARY INVESTIGATION.

    (a) Initial Receipt of Information.--Section 591 of title 28, 
United States Code, is amended--
            (1) in subsection (a), by striking ``any Federal criminal 
        law other than a violation classified as a Class B or Class C 
        misdemeanor infraction'' and inserting ``any Federal felony or 
        any Federal misdemeanor for which there is an established 
        practice of prosecution and which is alleged to have occurred 
        or commenced while the target of the investigation was in 
        office'';
            (2) in subsection (c)(1)--
                    (A) by striking ``information'' and inserting 
                ``specific information from a credible source that 
                is''; and
                    (B) by striking ``may have'' and inserting ``has''.
    (b) Receipt of Additional Information.--Section 592(c)(2) of title 
28, United States Code, is amended by striking ``information'' and 
inserting ``specific information from a credible source that is''.

SEC. 5. SUBPOENA POWER.

    Section 592(a)(2) of title 28, United States Code, is amended by 
striking ``grant immunity, or issue subpoenas'' and inserting ``or 
grant immunity but may issue subpoenas duces tecum''.

SEC. 6. LEVEL OF EVIDENCE.

    Section 592(a)(2)(B)(ii) is amended by striking ``clear and 
convincing evidence'' and inserting ``a preponderance of the 
evidence''.

SEC. 7. PROSECUTORIAL JURISDICTION OF INDEPENDENT COUNSEL.

    Section 593(b) of title 28, United States Code, as amended by 
section 3(b), is amended--
            (1) in paragraph (1)--
                    (A) by striking ``define'' and inserting ``, with 
                specificity, define''; and
                    (B) by adding at the end the following: ``Such 
                jurisdiction shall be limited to the alleged violations 
                of criminal law with respect to which the Attorney 
                General has requested the appointment of the 
                independent counsel, and matters directly related to 
                such criminal violations.''; and
            (2) by amending paragraph (3) to read as follows:
            ``(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 
        adequate authority to fully investigate and prosecute the 
        alleged violations of criminal law with respect to which the 
        Attorney General has requested the appointment of the 
        independent counsel, and matters directly related to such 
        criminal violations, including perjury, obstruction of justice, 
        destruction of evidence, and intimidation of witnesses.''.

SEC. 8. ATTORNEY'S FEES.

    The first sentence of section 593(f)(1) of title 28, United States 
Code, is amended--
            (1) by inserting after ``investigation'' the first time it 
        occurs the following: ``or a witness in an investigation'';
            (2) by striking ``the court may'' and inserting ``the court 
        shall'';
            (3) by inserting after ``pursuant to that investigation'' 
        the following: ``or if such individual is acquitted of all 
        charges or no conviction is obtained against such individual at 
        a trial brought pursuant to that investigation or if the 
        conviction of that individual is overturned on appeal''; and
            (4) by inserting after ``during that investigation'' the 
        following: ``, trial, and appeal (if any)''.

SEC. 9. CONSULTATION WITH THE DEPARTMENT OF JUSTICE.

    Section 594(d) is amended by adding after the first sentence the 
following: ``An independent counsel may, in the independent counsel's 
discretion, consult with the appropriate components of the Department 
of Justice on policies and practices of the Department so long as such 
consultation does not compromise the independent counsel's 
independence.''.

SEC. 10. AUTHORITIES AND DUTIES OF INDEPENDENT COUNSEL.

    (a) Compliance With Policies of the Department of Justice.--Section 
594(f) of title 28, United States Code, is amended by striking 
``enforcement of the criminal laws'' and inserting ``the enforcement of 
criminal laws and the release of information relating to criminal 
proceedings''.
    (b) Limitation on Expenditures.--Section 594 of title 28, United 
States Code is amended by adding at the end the following:
    ``(m) Limitation on Expenditures.--No funds may be expended for the 
operation of any office of independent counsel after the end of the 2-
year period after its establishment, except to the extent that the 
appointing court specifically makes available funds for such office for 
use after the end of that 2-year period.''.
    (c) Periodic Reports.--The last sentence of section 595(a)(2) of 
title 28, United States Code, is amended to read as follows: ``Such 
report need not contain information which would--
                    ``(A) compromise or undermine the confidentiality 
                of an ongoing investigation under this chapter,
                    ``(B) adversely affect the outcome of any 
                prosecution under this chapter, or
                    ``(C) violate the personal privacy of any 
                individual,
        but shall provide information adequate to justify the 
        expenditures which the office of that independent counsel has 
        made, and indicate in general terms the state of the work of 
        the independent counsel.''.

SEC. 11. REMOVAL, TERMINATION, AND PERIODIC REAPPOINTMENT OF 
              INDEPENDENT COUNSEL.

    (a) Grounds for Removal.--Section 596(a)(1) of title 28, United 
States Code, is amended by adding at the end the following: ``Failure 
to comply with the established policies of the Department of Justice as 
required by section 594(f), or to comply with section 594(j) may be 
grounds for removing that independent counsel from office for good 
cause under this subsection.''.
    (b) Termination.--Section 596(b)(2) of title 28, United States 
Code, is amended to read as follows:
            ``(2) Termination by division of the court.--The division 
        of the court may terminate an office of independent counsel at 
        any time--
                    ``(A) on its own motion,
                    ``(B) upon the request of the Attorney General, or
                    ``(C) upon the petition of the subject of an 
                investigation conducted by such independent counsel, if 
                the petition is made more than 2 years after the 
                appointment of such independent counsel,
        on the ground that the investigation conducted by the 
        independent counsel has been completed and that it would be 
        appropriate for the Department of Justice to complete such 
        investigation or to conduct any prosecution brought pursuant to 
        such investigation.''.
    (c) Periodic Reappointment.--Section 596 of title 28, United States 
Code, is amended by adding at the end the following:
    ``(d) Periodic Reappointment of Independent Counsel.--If an office 
of independent counsel has not terminated before--
            ``(1) the date that is 2 years after the original 
        appointment to that office, or
            ``(2) the end of each succeeding 2-year period, such 
        counsel shall apply to the division of the court for 
        reappointment. The court shall first determine whether the 
        office of that independent counsel should be terminated under 
        subsection (b)(2). If the court determines that such office 
        will not be terminated under such subsection, the court shall 
        reappoint the applicant if the court determines that such 
        applicant remains the appropriate person to carry out the 
        duties of the office. If not, the court shall appoint some 
        other person whom it considers qualified under the standards 
        set forth in section 593 of this title.''.

SEC. 12. JOB PROTECTIONS FOR INDIVIDUALS UNDER INVESTIGATION.

    (a) In General.--Section 597 of title 28, United States Code, is 
amended--
            (1) by amending the section caption to read as follows:
``Sec. 597. Relationship with Department of Justice; job protection for 
              individuals under investigation''; and
            (2) by adding at the end the following:
    ``(c) Job Protection for Individuals Under Investigation.--
            ``(1) Prohibited personnel practice.--Except as provided in 
        paragraph (3), it shall be a prohibited personnel practice for 
        an employee of the United States Government who has authority 
        to take, direct others to take, recommend, or approve any 
        personnel action (as defined in section 2302(a)(2)(A) of title 
        5) with respect to an individual described in paragraph (2) who 
        is the subject of an investigation or prosecution under this 
        chapter, to take or fail to take, or threaten to take or fail 
        to take, such a personnel action with respect to such 
        individual, solely on account of such investigation or 
        prosecution.
            ``(2) Applicability.--The individuals referred to in 
        paragraph (1) are individuals other than--
                    ``(A) any person described in section 591(a); and
                    ``(B) any employee of the Federal Government whose 
                position is excepted from the competitive service on 
                the basis of its confidential, policy-determining, 
                policy-making, or policy-advocating character.
            ``(3) Exemption.--Paragraph (1) does not apply in the case 
        of an individual who is convicted of a criminal offense 
        pursuant to an investigation or prosecution described in 
        paragraph (1), unless such conviction is overturned on appeal.
            ``(4) Remedies.--An individual with respect to whom a 
        prohibited personnel practice applies under paragraph (1) may 
        seek corrective action from the Merit Systems Protection Board 
        to the same extent as an employee may seek corrective action 
        under section 1221 of title 5 (including subsection (h) of such 
        section), except that, for purposes of such section, any 
        reference to section 2302(b)(8) of title 5 shall be deemed to 
        refer to paragraph (1) of this subsection, and any reference to 
        a disclosure under such section 2302(b)(8) shall be deemed to 
        refer to an investigation or prosecution described in paragraph 
        (1) of this subsection.''.
    (b) Conforming Amendment.--The item relating to section 597 in the 
table of sections at the beginning of chapter 40 of title 28, United 
States Code, is amended to read as follows:

``597. Relationship with Department of Justice; job protection for 
                            individuals under investigation.''.

SEC. 13. GAO REPORT.

    The Comptroller General of the United States shall submit to the 
Congress, not later than 1 year after the date of the enactment of this 
Act, a report setting forth recommendations of ways to improve controls 
on costs of offices of independent counsel under chapter 40 of title 
28, United States Code.
                                 <all>