[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3362 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 3362

 To establish guidelines for the assertion of Executive privilege, to 
 enhance the authority of Congress to enforce subpoenas and punish for 
                   contempt, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 28, 2009

 Mr. Miller of North Carolina (for himself, Mr. Conyers, Ms. Linda T. 
 Sanchez of California, and Mr. Cohen) introduced the following bill; 
 which was referred to the Committee on the Judiciary, and in addition 
     to the Committee on House Administration, for a period to be 
subsequently determined by the Speaker, in each case for consideration 
  of such provisions as fall within the jurisdiction of the committee 
                               concerned

_______________________________________________________________________

                                 A BILL


 
 To establish guidelines for the assertion of Executive privilege, to 
 enhance the authority of Congress to enforce subpoenas and punish for 
                   contempt, 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Checks and 
Balances Restoration and Revitalization Act''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
               TITLE I--ASSERTIONS OF EXECUTIVE PRIVILEGE

Sec. 101. Findings.
Sec. 102. Procedure governing claims of Executive privilege before 
                            Congress.
Sec. 103. Executive policy.
Sec. 104. Executive privilege defined.
       TITLE II--CONTEMPT OF CONGRESS PROCEDURES AND ENFORCEMENT

Sec. 201. Availability of civil action to enforce House of 
                            Representatives subpoenas.
Sec. 202. Alternate procedures for enforcement of criminal contempt of 
                            Congress.
Sec. 203. Increase in penalty for contempt of Congress.
Sec. 204. Authority of United States Capitol Police to enforce 
                            citations.
Sec. 205. Collection of penalties imposed by the House of 
                            Representatives on persons cited for 
                            contempt of House.
               TITLE III--PRESIDENTIAL SIGNING STATEMENTS

Sec. 301. Findings.
Sec. 302. Treatment of certain Presidential signing statements as 
                            reports establishing policy to refrain from 
                            enforcing law for purposes of notifying 
                            counsel for Congress.
Sec. 303. Actions for declaratory or injunctive relief to compel 
                            enforcement.
Sec. 304. Qualifying Presidential signing statement defined.
Sec. 305. Effective date.
 TITLE IV--PROCEDURES APPLICABLE TO LEGAL OPINIONS OF OFFICE OF LEGAL 
                                COUNSEL

Sec. 401. Findings.
Sec. 402. Reporting of legal opinions.
Sec. 403. Signature requirements for legal opinions of Office of Legal 
                            Counsel.
                         TITLE V--SEVERABILITY

Sec. 501. Severability.

               TITLE I--ASSERTIONS OF EXECUTIVE PRIVILEGE

SEC. 101. FINDINGS.

    Congress finds the following:
            (1) Assertions of Executive privilege provide the Executive 
        branch an opportunity to perpetuate excessive executive secrecy 
        and to deny Congress access to the information it requires to 
        perform its Constitutional responsibilities.
            (2) Excessive secrecy tends to undermine self-government 
        and invite lawlessness and maladministration.
            (3) A shared and uniform understanding of when and how the 
        President may assert Executive privilege, and when and how this 
        privilege may be overcome by Congress, facilitates information 
        sharing among the coordinate branches of the Government.
            (4) A judicial forum is available to resolve disputes over 
        particular claims of Executive privilege when the political 
        branches are unable to do so.

SEC. 102. PROCEDURE GOVERNING CLAIMS OF EXECUTIVE PRIVILEGE BEFORE 
              CONGRESS.

    (a) In General.--Any claim of Executive privilege before either 
House of Congress or any body acting under the authority of either 
House must be--
            (1) made by the express authority of the President; and
            (2) accompanied by a statement, approved by the President, 
        of the factual and legal basis for that claim.
    (b) Method of Showing Express Authority.--In the case of such a 
claim made other than by the incumbent President in person, the express 
authority of the President for the claim must be in writing and signed 
by the incumbent President.
    (c) Requirement of Appearance.--Noting that each person summoned to 
appear under the authority of either House of Congress must appear in 
person in order to assert any privilege or other excuse not to testify, 
Congress also requires that a person (other than the President or a 
former President) who is or was an Executive branch official make any 
assertion of Executive privilege by such an appearance.
    (d) Procedures for Assertion of Privilege in Person.--
            (1) Presentation of authority to assert privilege.--When a 
        person appears in person to assert Executive privilege as 
        required under subsection (c), the person shall present a 
        written statement that satisfies the requirements of subsection 
        (b) and authorizes the person to assert the privilege, except 
        that if the person reasonably believes that a question would 
        elicit information that is subject to Executive privilege, but 
        is not in possession of such a written statement, the witness 
        may assert a provisional claim of Executive privilege in lieu 
        of answering the question.
            (2) Subsequent response after assertion of provisional 
        claim.--Not later than 10 calendar days after asserting a 
        provisional claim of Executive privilege under paragraph (1) in 
        response to a question, the person shall submit to the House of 
        Congress before which the person appeared--
                    (A) a written statement that satisfies the 
                requirements of subsection (b) with respect to the 
                claim asserted; or
                    (B) a written answer to the question.
    (e) Requirement of Identification of Materials Withheld on the 
Ground of Privilege.--Any person withholding subpoenaed documents, 
written communications, or tangible items from either House of Congress 
on a claim of Executive privilege shall provide to the requesting body 
an index of the withheld documents, communications, and items and a 
statement describing the nature of each such document, communication, 
and item in a manner that, without revealing the information claimed as 
privileged, will enable the requesting body to assess the validity of 
the claim that Executive privilege applies to that particular document, 
communication, or item.

SEC. 103. EXECUTIVE POLICY.

    (a) Establishment of Policy.--Not less than 180 days after the date 
of the enactment of this Act, and thereafter, not less than 180 days 
following the beginning of each four-year presidential term, the 
President or the Attorney General shall issue binding guidelines 
setting forth a policy governing the use of Executive privilege.
    (b) Specifications.--The policy set forth pursuant to subsection 
(a)--
            (1) shall specify the procedures by which a decision to 
        assert Executive privilege is reached, which shall be 
        consistent with section 102; and
            (2) shall be consistent with the holding of United States 
        v. Nixon (418 US 683, 713-714) that the demonstrated, specific 
        need of a coordinate branch of government is sufficient to 
        overcome a claim of Executive privilege.

SEC. 104. EXECUTIVE PRIVILEGE DEFINED.

    In this title, the term ``Executive privilege'' means--
            (1) a withholding of information which is based on a claim 
        of authority under article II of the Constitution of the United 
        States; or
            (2) a withholding of information by any individual who is 
        an officer or employee of the Executive branch (or who was an 
        officer or employee of the Executive branch at the time the 
        information was first sought by either House of Congress) which 
        is based on any other claim of law.

       TITLE II--CONTEMPT OF CONGRESS PROCEDURES AND ENFORCEMENT

SEC. 201. AVAILABILITY OF CIVIL ACTION TO ENFORCE HOUSE OF 
              REPRESENTATIVES SUBPOENAS.

    (a) Civil Action.--The House of Representatives may in a civil 
action obtain any appropriate relief to enforce compliance with a 
subpoena or order of the House, or to enforce compliance with a 
subpoena or order issued by a committee or subcommittee of the House 
authorized to issue a subpoena or order, if the House by resolution 
authorizes the commencement of that civil action.
    (b) Representation by General Counsel.--Unless the House otherwise 
provides, the Office of the General Counsel of the House of 
Representatives shall represent the House in the civil action.
    (c) Personal Jurisdiction.--Personal jurisdiction of the court over 
a defendant in a civil action under this section extends outside the 
territorial jurisdiction of the court if the claim--
            (1) arose out of conduct by the defendant--
                    (A) within that territorial jurisdiction, or
                    (B) causing any injury, including informational 
                injury to the right of the House to make an 
                investigation, within that territorial jurisdiction; or
            (2) otherwise has a reasonable relationship to contacts of 
        the defendant with the territorial jurisdiction.
    (d) Assessment of Competing Interests.--
            (1) In general.--In any civil action brought under this 
        section, if the court has determined that the information or 
        material which is the subject of the subpoena or order involved 
        is presumptively privileged based upon the President's 
        generalized interest in confidentiality, the House may overcome 
        this presumption by showing that--
                    (A) the House, or a committee or subcommittee 
                thereof, has a specific need for the information or 
                material in order to carry out its constitutional 
                obligations; and
                    (B) the information is not otherwise available.
            (2) Enforcement.--If the court determines that the House, 
        or a committee or subcommittee thereof, has made the showing 
        described in paragraph (1), it shall enforce the subpoena or 
        order involved.
    (e) Expedition of Trial and Appellate Proceedings.--The court shall 
hear and determine a civil action under this section as expeditiously 
as possible, and to the maximum extent practicable during the Congress 
in which the action is commenced. Any appellate proceedings relating to 
such a civil action shall similarly be expedited to assure to the 
extent possible that the matter is fully resolved during the Congress 
in which the action was commenced.

SEC. 202. ALTERNATE PROCEDURES FOR ENFORCEMENT OF CRIMINAL CONTEMPT OF 
              CONGRESS.

    (a) Alternate Procedure.--
            (1) Scope of application.--If the House of Representatives 
        finds a current or former officer or employee of the Executive 
        branch has violated section 102 of the Revised Statutes of the 
        United States (2 U.S.C. 192) or that any person has violated 
        such section at the direction of the President or another 
        officer of the Executive branch, the procedures of this section 
        apply.
            (2) Certification by speaker.--In accordance with section 
        104 of the Revised Statutes of the United States (2 U.S.C. 
        194), upon the finding by the House of Representatives of a 
        violation to which this section applies, the Speaker shall 
        certify that finding to the appropriate United States attorney, 
        whose duty it shall be to bring the matter before the grand 
        jury for its action.
            (3) Circumstances leading to appointment of special 
        counsel.--If--
                    (A) the Attorney General or the United States 
                attorney to whom the finding was certified informs the 
                court or the House that the Department of Justice will 
                not prosecute the case; or
                    (B) by the end of the 30th day after the date of 
                receipt of a certification made under paragraph (2) a 
                grand jury has not returned an indictment based on the 
                violation alleged in the certification;
        the Special Division established under subsection (b) 
        (hereinafter in this Act referred to as the ``Special 
        Division'') shall appoint a special counsel under subsection 
        (c). It shall be the duty of the Attorney General to inform 
        that court and the House if a grand jury does not return an 
        indictment by the end of the 30-day period. The Speaker of the 
        House, or any interested congressional party, may file with the 
        Special Division a suggestion that circumstances giving rise to 
        a duty to appoint a special counsel have occurred after the 30-
        day period ends without the return of an indictment.
    (b) Special Division.--
            (1) Establishment.--There is hereby established within the 
        United States Court of Appeals for the District of Columbia a 
        Special Division to carry out the appointment of special 
        counsels under this section.
            (2) Designation.--
                    (A) In general.--The Chief Justice of the United 
                States shall designate three judges or justices of the 
                United States, one of whom shall be an active judge of 
                the United States Court of Appeals for the District of 
                Columbia, to serve on the Special Division, except that 
                none of the judges or justices serving on the Special 
                Division may serve or have served on the same court.
                    (B) Priority.--In designating judges and justices 
                to serve on the Special Division, the Chief Justice 
                shall give priority to senior circuit judges and 
                retired justices of the United States Supreme Court.
                    (C) Deadline.--The Chief Justice shall make the 
                first such designation not later than 45 days after the 
                date of the enactment of this Act.
            (3) Term of service.--Each designation to the Special 
        Division shall be for a term of 2 years, but the Chief Justice 
        may fill any vacancy arising before the end of a term for the 
        remainder of that term.
    (c) Appointment, Qualifications, and Prosecutorial Jurisdiction of 
Special Counsel, and Administrative Matters Relating to the Special 
Counsel.--
            (1) Appointment, qualifications, and prosecutorial 
        jurisdiction of special counsel.--
                    (A) Appointment and qualifications.--The Special 
                Division shall appoint the special counsel, who must be 
                an attorney in good standing with substantial 
                prosecutorial experience--
                            (i) who has not served in any capacity in 
                        the administration of the President who is or 
                        who was in office at the time the Speaker of 
                        the House certified the finding of a violation; 
                        and
                            (ii) who is or who was not a Member, 
                        officer, or employee of Congress at the time 
                        the Speaker of the House certified the finding 
                        of a violation.
                    (B) Prosecutorial jurisdiction.--The Special 
                Division shall define the special counsel's 
                prosecutorial jurisdiction as comprising the 
                investigation and prosecution of the alleged violation, 
                any conspiracy to commit the alleged violation, and any 
                perjury, false statement, or obstruction of justice 
                occurring in relation to such investigation and 
                prosecution.
            (2) Authority of special counsel with respect to matters 
        within prosecutorial jurisdiction.--With respect to all matters 
        in that special counsel's prosecutorial jurisdiction, a special 
        counsel appointed under this section shall have full power and 
        independent authority to exercise all prosecutorial functions 
        and powers, and any other functions and powers normally 
        ancillary thereto, 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.
            (3) Compliance with policies of the department of 
        justice.--
                    (A) In general.--A special 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.
                    (B) National security.--A special counsel shall 
                comply with guidelines and procedures used by the 
                Department in the handling and use of classified 
                material.
            (4) Salary.--The special counsel shall receive a salary 
        equivalent to the salary of the United States Attorney for the 
        District of Columbia.
            (5) Staff.--The special counsel may appoint and fix the 
        salaries of such staff, not to exceed 12 in number, as the 
        special counsel deems necessary to carry out the functions of 
        the special counsel under this section. However, no salary of a 
        member of such staff may exceed the salary of the special 
        counsel.
            (6) Expenses.--The Department of Justice shall pay all 
        costs relating to the establishment and operation of any office 
        of special 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 the special 
        counsel.
            (7) Report to congress.--Each special counsel shall report 
        to Congress annually on the special counsel's activities under 
        this section. The report shall include a description of the 
        progress of any investigation or prosecution conducted by the 
        special counsel and provide information justifying the costs of 
        the activities reported on.
    (d) Removal of Special Counsel.--
            (1) In general.--A special counsel 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, or any other condition 
        that substantially impairs the performance of that special 
        counsel's duties.
            (2) Report upon removal.--If a special counsel is removed 
        from office, the Attorney General shall promptly submit to the 
        Special Division and to Congress a report specifying the facts 
        found and the ultimate grounds for the removal.
            (3) Judicial review of removal.--A special counsel removed 
        from office may obtain judicial review of the removal in a 
        civil action. The Special Division may not hear or determine 
        any appeal of a decision in any such civil action. The special 
        counsel may be reinstated or granted other appropriate relief 
        by order of the court.
            (4) Appointment of replacement.--Upon removal of a special 
        counsel, the Special Division shall appoint a similarly 
        qualified individual to continue the functions of the special 
        counsel.
    (e) Termination of Special Counsel's Authority.--
            (1) In general.--The authority of the special counsel shall 
        cease 2 years after the date of the special counsel's 
        appointment, but the Special Division may extend that authority 
        for an additional period not to exceed one year, if the Special 
        Division finds good cause to do so. Good cause to do so 
        includes that the investigation or prosecution undertaken by 
        the special counsel has been delayed by dilatory tactics by 
        persons who could provide evidence that would significantly 
        assist the investigation or prosecution, and also includes the 
        need to allow the special counsel to participate in any 
        appellate proceedings related to prosecutions engaged in by the 
        special counsel.
            (2) Termination by court.--The Special Division, either on 
        the Special Division's own motion or upon the request of the 
        Attorney General, may terminate an office of special counsel at 
        any time, on the ground that the investigation of all matters 
        within the prosecutorial jurisdiction of such special counsel, 
        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.

SEC. 203. INCREASE IN PENALTY FOR CONTEMPT OF CONGRESS.

    Section 102 of the Revised Statutes of the United States (2 U.S.C. 
192) is amended by striking ``deemed'' and all that follows through 
``twelve months'' and inserting ``fined not more than $1,000,000 or 
imprisoned not more than 2 years, or both''.

SEC. 204. AUTHORITY OF UNITED STATES CAPITOL POLICE TO ENFORCE 
              CITATIONS.

    (a) Authority.--Section 9B(a) of the Act entitled ``An Act to 
define the area of the United States Capitol Grounds, to regulate the 
use thereof, and for other purposes'', approved July 31, 1946 (2 U.S.C. 
1967(a)), is amended--
            (1) by striking ``and'' at the end of paragraph (4);
            (2) by striking the period at the end of paragraph (5) and 
        inserting ``; and''; and
            (3) by adding at the end the following new paragraph:
            ``(6) within any area, to enforce a citation issued with 
        respect to a violation of section 102 of the Revised Statutes 
        of the United States which relates to the House of 
        Representatives, or any citation issued with respect to a 
        resolution adopted by the House citing a person for contempt of 
        the House.''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
apply with respect to citations issued on or after the expiration of 
the 90-day period which begins on the date of the enactment of this 
Act.

SEC. 205. COLLECTION OF PENALTIES IMPOSED BY THE HOUSE OF 
              REPRESENTATIVES ON PERSONS CITED FOR CONTEMPT OF HOUSE.

    (a) Civil Action.--If the House of Representatives adopts a 
resolution citing a person for contempt of the House, the House may 
commence a civil action to collect a monetary penalty from the person 
if the House by subsequent resolution authorizes the commencement of 
that civil action.
    (b) Representation by General Counsel.--Unless the House otherwise 
provides, the Office of the General Counsel of the House of 
Representatives shall represent the House in the civil action.
    (c) Personal Jurisdiction.--Personal jurisdiction of the court over 
a defendant in a civil action under this section extends outside the 
territorial jurisdiction of the court if the claim--
            (1) arose out of conduct by the defendant--
                    (A) within that territorial jurisdiction; or
                    (B) causing any injury, including informational 
                injury to the right of the House to make an 
                investigation, within that territorial jurisdiction; or
            (2) otherwise has a reasonable relationship to contacts of 
        the defendant with the territorial jurisdiction.
    (d) Expedition of Trial and Appellate Proceedings.--The court shall 
hear and determine a civil action under this section as expeditiously 
as possible, and to the maximum extent practicable during the Congress 
in which the action is commenced. Any appellate proceedings relating to 
such a civil action shall similarly be expedited to assure to the 
extent possible that the matter is fully resolved during the Congress 
in which the action was commenced.

SEC. 206. NO EFFECT OF EXPIRATION OF CONGRESS ON PENDING ACTIONS.

    Any civil action commenced by the House of Representatives pursuant 
to this title, and the authority of the Office of the General Counsel 
of the House of Representatives with respect to the action, shall not 
be rendered moot or otherwise affected as the result of the expiration 
of the Congress in which the House commenced the action.

               TITLE III--PRESIDENTIAL SIGNING STATEMENTS

SEC. 301. FINDINGS.

    Congress finds the following:
            (1) To ensure that the lawmaking power would be exercised 
        by the branch of government that is the closest and most 
        accountable to the people the Constitution provides that ``All 
        legislative power herein granted shall be vested in a Congress 
        of the United States, which shall consist of a Senate and House 
        of Representatives''.
            (2) Article I, section 8, clause 18, gives Congress the 
        power ``To make all laws which shall be necessary and proper 
        for carrying into execution the foregoing powers, and all other 
        powers vested by this Constitution in the government of the 
        United States, or in any department or officer thereof''.
            (3) The Constitution provides that the President ``shall 
        take care that the laws be faithfully executed'' and limits the 
        role of the President in the lawmaking process to--
                    (A) giving Congress information on the State of the 
                Union;
                    (B) recommending to Congress for consideration such 
                measures as the President deems necessary and 
                expedient; and
                    (C) approving or vetoing bills and joint 
                resolutions presented to him for signature.
            (4) Statements made by the President contemporaneously with 
        the signing of a bill or joint resolution that express the 
        President's interpretation of the scope, constitutionality, and 
        intent of Congress in enacting the bill or joint resolution 
        presented for signature may encroach upon the power to make 
        laws that the Framers vested solely in the Congress.

SEC. 302. TREATMENT OF CERTAIN PRESIDENTIAL SIGNING STATEMENTS AS 
              REPORTS ESTABLISHING POLICY TO REFRAIN FROM ENFORCING LAW 
              FOR PURPOSES OF NOTIFYING COUNSEL FOR CONGRESS.

    Section 530D(e) of title 28, United States Code, is amended by 
striking ``or order)'' and inserting the following: ``or order, or to 
the issuance of any qualifying Presidential signing statement (as 
defined in section 304 of the Checks and Balances Restoration and 
Revitalization Act))''.

SEC. 303. ACTIONS FOR DECLARATORY OR INJUNCTIVE RELIEF TO COMPEL 
              ENFORCEMENT.

    (a) In General.--In accordance with the requirements of this 
section, the General Counsel of the House of Representatives and the 
Senate Legal Counsel, acting jointly, may bring a civil action in the 
appropriate United States district court for declaratory or injunctive 
relief to compel the enforcement of the provision of law which is the 
subject of a qualifying Presidential signing statement.
    (b) Adoption of Resolution Required.--The General Counsel of the 
House of Representatives and the Senate Legal Counsel may bring a civil 
action under subsection (a) only upon the adoption by the House of 
Representatives and the Senate of a resolution which meets each of the 
following requirements:
            (1) The resolution is introduced prior to the expiration of 
        the 10-day period (excluding weekends, holidays, and any day on 
        which either House of Congress is not in session because of an 
        adjournment sine die, a recess of more than 3 days, or an 
        adjournment of more than 3 days) which begins on the date on 
        which the House of Representatives and the Senate receive 
        notice pursuant to section 530D(e) of title 28, United States 
        Code, of the issuance of a qualifying Presidential signing 
        statement.
            (2) The resolution does not have a preamble.
            (3) The matter after the resolving clause is as follows: 
        ``That Congress directs the General Counsel of the House of 
        Representatives and the Senate Legal Counsel to bring a civil 
        action for declaratory or injunctive relief to compel the 
        enforcement of _____'', with the blank space filled in with a 
        citation to the provision of law which is the subject of the 
        qualifying Presidential signing statement for which the House 
        and Senate received the notice described in paragraph (1).
            (4) The title is as follows: ``Concurrent resolution 
        directing the General Counsel of the House of Representatives 
        and the Senate Legal Counsel to bring a civil action for 
        declaratory or injunctive relief to compel the enforcement of 
        _____'', with the blank space filled in with a citation to the 
        provision of law which is the subject of the qualifying 
        Presidential signing statement for which the House and Senate 
        received the notice described in paragraph (1).

SEC. 304. QUALIFYING PRESIDENTIAL SIGNING STATEMENT DEFINED.

    In this title, the term ``qualifying Presidential signing 
statement'' means a statement issued by the President and published in 
the Federal Register about a bill or joint resolution in conjunction 
with signing that bill or joint resolution into law pursuant to article 
I, section 7, of the Constitution of the United States which asserts or 
implies an intention not to enforce any provision of the bill or joint 
resolution, in part or in whole.

SEC. 305. EFFECTIVE DATE.

    This title and the amendments made by this title shall apply with 
respect to Presidential signing statements issued on or after the 
expiration of the 90-day period which begins on the date of the 
enactment of this Act.

 TITLE IV--PROCEDURES APPLICABLE TO LEGAL OPINIONS OF OFFICE OF LEGAL 
                                COUNSEL

SEC. 401. FINDINGS.

    Congress finds the following:
            (1) To fulfill the constitutional duty of the Executive 
        branch to act lawfully, the President must have access to a 
        reliable source of legal advice.
            (2) The Attorney General has delegated to the Office of 
        Legal Counsel in the Department of Justice the function of 
        providing legal advice to guide the actions of the President 
        and the Executive branch.
            (3) To fulfill its legislative and oversight duties under 
        the Constitution, Congress must have access to information 
        about how and whether the Executive branch is implementing the 
        laws of the United States.
            (4) To fulfill its legislative and oversight duties under 
        the Constitution, Congress must have greater access to 
        information about the legal opinions rendered by the Office of 
        Legal Counsel, and the legal theories and doctrines on which 
        they rely.

SEC. 402. REPORTING OF LEGAL OPINIONS.

    (a) Issuance of Opinions Requiring Reports to Congress.--Section 
530D(a) of title 28, United States Code, is amended--
            (1) in paragraph (1)--
                    (A) in subparagraph (B), by striking ``or'' at the 
                end;
                    (B) by redesignating subparagraph (C) as 
                subparagraph (E); and
                    (C) by inserting after subparagraph (B) the 
                following:
                    ``(C) except as provided in paragraph (3), issues 
                an authoritative legal interpretation (including an 
                interpretation under section 511, 512, or 513 by the 
                Attorney General or by an officer, employee, or agency 
                of the Department of Justice pursuant to a delegation 
                of authority under section 510) of any provision of any 
                Federal statute--
                            ``(i) that concludes that the provision is 
                        unconstitutional or would be unconstitutional 
                        in a particular application;
                            ``(ii) that relies for the conclusion of 
                        the authoritative legal interpretation, in 
                        whole or in the alternative, on a determination 
                        that an interpretation of the provision other 
                        than the authoritative legal interpretation 
                        would raise constitutional concerns under 
                        article II of the Constitution of the United 
                        States or separation of powers principles;
                            ``(iii) that relies for the conclusion of 
                        the authoritative legal interpretation, in 
                        whole or in the alternative, on a legal 
                        presumption against applying the provision, 
                        whether during a war or otherwise, to--
                                    ``(I) any department or agency 
                                established in the Executive branch of 
                                the Federal Government, including the 
                                Executive Office of the President and 
                                the military departments (as defined in 
                                section 101(8) of title 10); or
                                    ``(II) any officer, employee, or 
                                member of any department or agency 
                                established in the Executive branch of 
                                the Federal Government, including the 
                                President and any member of the Armed 
                                Forces; or
                            ``(iv) that concludes the provision has 
                        been superseded or deprived of effect in whole 
                        or in part by a subsequently enacted statute 
                        where there is no express statutory language 
                        stating an intent to supersede the prior 
                        provision or deprive it of effect;
                    ``(D) except as provided in paragraph (3), issues 
                an authoritative legal interpretation (including an 
                interpretation under section 511, 512, or 513 by the 
                Attorney General or by an officer, employee, or agency 
                of the Department of Justice pursuant to a delegation 
                of authority under section 510) regarding the 
                constitutionality or legality of a policy or action of 
                the Executive branch; or'';
            (2) in paragraph (2), by striking ``For the purposes'' and 
        all that follows through ``if the report'' and inserting 
        ``Except as provided in paragraph (4), a report shall be 
        considered to be submitted to the Congress for the purposes of 
        paragraph (1) if the report''; and
            (3) by adding at the end the following:
            ``(3) Exception for advisory opinions.--The submission of a 
        report to Congress based on the issuance of an authoritative 
        legal interpretation shall be discretionary on the part of the 
        Attorney General or an officer described in subsection (e)--
                    ``(A) in the case of an interpretation described in 
                paragraph (1)(C), if no action is taken or withheld or 
                no policy is implemented or stayed on the basis of the 
                authoritative legal interpretation; or
                    ``(B) in the case of an interpretation described in 
                paragraph (1)(D), if the authoritative legal 
                interpretation is not followed with respect to the 
                Executive branch policy or action involved.
            ``(4) Classified information.--
                    ``(A) Submission of report containing classified 
                information regarding intelligence activities.--Except 
                as provided in subparagraph (B), if the Attorney 
                General submits a report relating to an instance 
                described in paragraph (1) that includes a classified 
                annex containing information relating to intelligence 
                activities, the report shall be considered to be 
                submitted to the Congress for the purposes of paragraph 
                (1) if--
                            ``(i) the unclassified portion of the 
                        report is submitted to each officer specified 
                        in paragraph (2); and
                            ``(ii) the classified annex is submitted to 
                        the Select Committee on Intelligence and the 
                        Committee on the Judiciary of the Senate and 
                        the Permanent Select Committee on Intelligence 
                        and the Committee on the Judiciary of the House 
                        of Representatives.
                    ``(B) Submission of report containing certain 
                classified information about covert actions.--
                            ``(i) In general.--In a circumstance 
                        described in clause (ii), a report described in 
                        that clause shall be considered to be submitted 
                        to the Congress for the purposes of paragraph 
                        (1) if--
                                    ``(I) the unclassified portion of 
                                the report is submitted to each officer 
                                specified in paragraph (2); and
                                    ``(II) the classified annex is 
                                submitted to--
                                            ``(aa) the chairman and 
                                        ranking minority member of the 
                                        Select Committee on 
                                        Intelligence of the Senate;
                                            ``(bb) the chairman and 
                                        ranking minority member of the 
                                        Committee on the Judiciary of 
                                        the Senate;
                                            ``(cc) the chairman and 
                                        ranking minority member of the 
                                        Permanent Select Committee on 
                                        Intelligence of the House of 
                                        Representatives;
                                            ``(dd) the chairman and 
                                        ranking minority member of the 
                                        Committee on the Judiciary of 
                                        the House of Representatives;
                                            ``(ee) the Speaker and 
                                        minority leader of the House of 
                                        Representatives; and
                                            ``(ff) the majority leader 
                                        and minority leader of the 
                                        Senate.
                            ``(ii) Circumstances.--A circumstance 
                        described in this clause is a circumstance in 
                        which--
                                    ``(I) the Attorney General submits 
                                a report relating to an instance 
                                described in paragraph (1) that 
                                includes a classified annex containing 
                                information relating to a Presidential 
                                finding described in section 503(a) of 
                                the National Security Act of 1947 (50 
                                U.S.C. 413b(a)); and
                                    ``(II) the President determines 
                                that it is essential to limit access to 
                                the information described in subclause 
                                (I) to meet extraordinary circumstances 
                                affecting vital interests of the United 
                                States.''.
    (b) Deadline for Submission.--Section 530D(b) of such title is 
amended to read as follows:
    ``(b) Deadline.--A report shall be submitted--
            ``(1) under subsection (a)(1)(A), not later than 30 days 
        after the establishment or implementation of each policy;
            ``(2) under subsection (a)(1)(B), within such time as will 
        reasonably enable the House of Representatives and the Senate 
        to take action, separately or jointly, to intervene in timely 
        fashion in the proceeding, but in no event later than 30 days 
        after the making of each determination;
            ``(3) under subsection (a)(1)(C) or (a)(1)(D)--
                    ``(A) not later than 30 days after the date on 
                which the Attorney General, the Office of Legal 
                Counsel, or any other officer of the Department of 
                Justice issues the authoritative legal interpretation 
                of the Federal statutory provision; or
                    ``(B) if the President or other responsible officer 
                of a department or agency established in the Executive 
                branch of the Federal Government, including the 
                Executive Office of the President and the military 
                departments (as defined in section 101(8) of title 10), 
                issues a directive described in subsection (a)(3) and 
                the directive is subsequently rescinded, not later than 
                30 days after the date on which the President or other 
                responsible officer rescinds that directive; and
            ``(4) under subsection (a)(1)(E), not later than 30 days 
        after the conclusion of each fiscal-year quarter, with respect 
        to all approvals occurring in such quarter.''.
    (c) Contents of Reports.--Section 530D(c) of such title is amended 
to read as follows:
    ``(c) Contents.--A report required by subsection (a) shall--
            ``(1) specify the date of the establishment or 
        implementation of the policy described in subsection (a)(1)(A), 
        of the making of the determination described in subsection 
        (a)(1)(B), of the issuance of the authoritative legal 
        interpretation described in subsection (a)(1)(C) or (a)(1)(D), 
        or of each approval described in subsection (a)(1)(E);
            ``(2) with respect to a report required under subparagraph 
        (A), (B), (D), or (E) of subsection (a)(1), specify the Federal 
        statute, rule, regulation, program, policy, or other law at 
        issue, and the paragraph and clause of subsection (a)(1) that 
        describes the action of the Attorney General or other officer 
        of the Department of Justice;
            ``(3) include a complete and detailed statement of the 
        relevant issues and background (including a complete and 
        detailed statement of the reasons for the policy, authoritative 
        legal interpretation, or determination, and the identity of the 
        officer responsible for establishing or implementing such 
        policy, issuing such authoritative legal interpretation, making 
        such determination, or approving such settlement or 
        compromise), except that--
                    ``(A) any classified information shall be provided 
                in a classified annex, which shall be handled in 
                accordance with the security procedures established 
                under section 501(d) of the National Security Act of 
                1947 (50 U.S.C. 413(d));
                    ``(B) except for information described in paragraph 
                (1) or (2), such details may be omitted as may be 
                absolutely necessary to prevent improper disclosure of 
                information the disclosure of which is prohibited by 
                section 6103 of the Internal Revenue Code of 1986, any 
                other statute, or any court order if the fact of each 
                such omission (and the precise ground or grounds 
                therefor) is clearly noted in the statement, except 
                that this subparagraph shall not be construed to deny 
                to the Congress (including any House, Committee, or 
                agency thereof) any such omitted details (or related 
                information) that it lawfully may seek, subsequent to 
                the submission of the report; and
                    ``(C) the requirements of this paragraph shall be 
                deemed satisfied--
                            ``(i) in the case of an authoritative legal 
                        interpretation described in subsection 
                        (a)(1)(C) or (a)(1)(D), if a copy of the Office 
                        of Legal Counsel or other legal opinion setting 
                        forth the authoritative legal interpretation is 
                        provided;
                            ``(ii) in the case of an approval described 
                        in subsection (a)(1)(E)(i), if an unredacted 
                        copy of the entire settlement agreement and 
                        consent decree or order (if any) is provided, 
                        along with a statement indicating the legal and 
                        factual basis or bases for the settlement or 
                        compromise (if not apparent on the face of 
                        documents provided); and
                            ``(iii) in the case of an approval 
                        described in subsection (a)(1)(E)(ii), if an 
                        unredacted copy of the entire settlement 
                        agreement and consent decree or order (if any) 
                        is provided, along with a statement indicating 
                        the injunctive or other nonmonetary relief (if 
                        not apparent on the face of documents 
                        provided); and
            ``(4) in the case of a determination described in 
        subsection (a)(1)(B) or an approval described in subsection 
        (a)(1)(E)(i), indicate the nature, tribunal, identifying 
        information, and status of the proceeding, suit, or action.''.
    (d) Applicability.--Section 530D(e) of such title is amended by 
striking ``subsection (a)(1)(A)'' and inserting ``subsection (a)(1)(A), 
issues an authoritative interpretation described in subsection 
(a)(1)(C) or (a)(1)(D),''.

SEC. 403. SIGNATURE REQUIREMENTS FOR LEGAL OPINIONS OF OFFICE OF LEGAL 
              COUNSEL.

    An authoritative legal interpretation described in subsection 
(a)(1)(C) or (a)(1)(D) of section 530D of title 28, United States Code 
(as amended by section 402(a)), shall have no legal affect unless the 
interpretation is signed personally by the Attorney General.

                         TITLE V--SEVERABILITY

SEC. 501. SEVERABILITY.

    If any provision of this Act or any amendment made by this Act, or 
the application of a provision or amendment to any person or 
circumstance, is held to be unconstitutional, the remainder of this Act 
and the amendments made by this Act, and the application of the 
provisions and amendments to any person or circumstance, shall not be 
affected by the holding.
                                 <all>