[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 71 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  1st Session
                                 S. 71

To ensure independent investigations and judicial review of the removal 
             of a special counsel, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 9, 2019

    Mr. Graham (for himself, Mr. Coons, Mr. Tillis, and Mr. Booker) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To ensure independent investigations and judicial review of the removal 
             of a special counsel, 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 ``Special Counsel Independence and 
Integrity Act''.

SEC. 2. DEPARTMENT OF JUSTICE SPECIAL COUNSEL.

    (a) In General.--Part II of title 28, United States Code, is 
amended by inserting after chapter 40A the following:

                     ``CHAPTER 40B--SPECIAL COUNSEL

``Sec.
``599K-1. Grounds for appointing a Special Counsel.
``599K-2. Alternatives available to the Attorney General.
``599K-3. Qualifications of the Special Counsel.
``599K-4. Jurisdiction.
``599K-5. Staff.
``599K-6. Powers and authority.
``599K-7. Conduct and accountability generally.
``599K-8. Limitation on removal of Special Counsel and certain other 
                            officials.
``599K-9. Notification and reports by the Special Counsel.
``599K-10. Notification and reports by the Attorney General.
``599K-11. No creation of rights.
``Sec. 599K-1. Grounds for appointing a Special Counsel
    ``(a) In General.--The Attorney General shall appoint a Special 
Counsel if the Attorney General determines that--
            ``(1) criminal investigation of a person or matter is 
        warranted;
            ``(2) investigation or prosecution of the person or matter 
        described in paragraph (1) by the office of a United States 
        attorney or litigating Division of the Department of Justice 
        (in this chapter referred to as the `Department') would present 
        a conflict of interest for the Department or other 
        extraordinary circumstances; and
            ``(3) under the circumstances, it would be in the public 
        interest to appoint an outside Special Counsel to assume 
        responsibility for the matter.
    ``(b) Recusal.--The Attorney General who has been confirmed to that 
position by the Senate or, in the case of the vacancy, absence, 
disability, or recusal of the Attorney General, the most senior Senate-
confirmed officer of the Department listed in section 508 who is not 
recused from the matter shall exercise the authority under this 
chapter.
``Sec. 599K-2. Alternatives available to the Attorney General
    ``(a) In General.--When matters are brought to the attention of the 
Attorney General that might warrant consideration of appointment of a 
Special Counsel, the Attorney General may--
            ``(1) appoint a Special Counsel in accordance with this 
        chapter;
            ``(2) direct that an initial investigation, consisting of 
        such factual inquiry or legal research as the Attorney General 
        determines appropriate, be conducted in order to better inform 
        the decision; or
            ``(3) conclude that under the circumstances of the matter, 
        the public interest would not be served by removing the 
        investigation from the normal processes of the Department, and 
        that the appropriate component of the Department should handle 
        the matter.
    ``(b) Additional Direction.--If the Attorney General reaches a 
conclusion described in subsection (a)(3), the Attorney General may 
direct that appropriate steps be taken to mitigate any conflicts of 
interest, such as recusal of particular officials.
``Sec. 599K-3. Qualifications of the Special Counsel
    ``(a) In General.--An individual named as Special Counsel under 
this chapter shall be--
            ``(1) a lawyer with a reputation for integrity and 
        impartial decisionmaking, and with appropriate experience to 
        ensure both that the investigation will be conducted ably, 
        expeditiously, and thoroughly, and that investigative and 
        prosecutorial decisions will be supported by an informed 
        understanding of the criminal law and Department policies; and
            ``(2) selected from outside the United States Government.
    ``(b) Priority of Investigation.--An individual named as Special 
Counsel under this chapter shall agree that the responsibilities of the 
individual as Special Counsel shall take first precedence in the 
professional life of the individual, and that it may be necessary to 
work full time on the investigation, depending on the complexity of the 
investigation and the stage of the investigation.
    ``(c) Appointment Method.--
            ``(1) In general.--The Attorney General shall consult with 
        the Assistant Attorney General for Administration to ensure an 
        appropriate method of appointment, and to ensure that a Special 
        Counsel undergoes an appropriate background investigation and a 
        detailed review of ethics and conflicts of interest issues.
            ``(2) Confidential employee.--A Special Counsel shall be 
        appointed as a confidential employee, as described in section 
        7511(b)(2)(C) of title 5.
``Sec. 599K-4. Jurisdiction
    ``(a) Original Jurisdiction.--
            ``(1) In general.--The jurisdiction of a Special Counsel 
        appointed under this chapter shall be established by the 
        Attorney General, and shall include the authority to 
        investigate and prosecute Federal crimes committed in the 
        course of, and with intent to interfere with, the Special 
        Counsel's investigation, such as perjury, obstruction of 
        justice, destruction of evidence, and intimidation of 
        witnesses, and to conduct appeals arising out of the matter 
        being investigated or prosecuted.
            ``(2) Statement of the matter to be investigated.--The 
        Special Counsel shall be provided with a specific factual 
        statement of the matter to be investigated.
    ``(b) Additional Jurisdiction.--If in the course of the 
investigation by a Special Counsel appointed under this chapter, the 
Special Counsel concludes that additional jurisdiction beyond that 
specified in the original jurisdiction is necessary in order to fully 
investigate and resolve the matters assigned, or to investigate new 
matters that come to light in the course of the investigation, the 
Special Counsel shall consult with the Attorney General, who shall 
determine whether to include the additional matters within the 
jurisdiction of the Special Counsel or assign them elsewhere.
    ``(c) Civil and Administrative Jurisdiction.--
            ``(1) In general.--If in the course of an investigation by 
        a Special Counsel appointed under this chapter, the Special 
        Counsel determines that administrative remedies, civil 
        sanctions, or other governmental action outside the criminal 
        justice system might be appropriate, the Special Counsel shall 
        consult with the Attorney General with respect to the 
        appropriate component to take any necessary action.
            ``(2) Limitation.--A Special Counsel appointed under this 
        chapter shall not have civil or administrative authority unless 
        specifically granted such jurisdiction by the Attorney General.
``Sec. 599K-5. Staff
    ``(a) In General.--A Special Counsel appointed under this chapter 
may request the assignment of appropriate personnel of the Department 
to assist the Special Counsel. The Department shall gather and provide 
the Special Counsel with the names and resumes of appropriate personnel 
available for detail. The Special Counsel may also request the detail 
of specific personnel, and the office for which the designated 
personnel work shall make reasonable efforts to accommodate the 
request.
    ``(b) Assignment of Duties.--A Special Counsel appointed under this 
chapter shall assign the duties and supervise the work of personnel 
while they are assigned to the Special Counsel.
    ``(c) Hiring of Additional Personnel.--If necessary, a Special 
Counsel appointed under this chapter may request that additional 
personnel be hired or assigned from outside the Department.
    ``(d) Cooperation.--All personnel in the Department shall cooperate 
to the fullest extent possible with a Special Counsel appointed under 
this chapter.
``Sec. 599K-6. Powers and authority
    ``(a) In General.--Subject to the limitations of this chapter, a 
Special Counsel appointed under this chapter shall exercise, within the 
scope of the jurisdiction of the Special Counsel, the full power and 
independent authority to exercise all investigative and prosecutorial 
functions of any United States attorney.
    ``(b) Special Counsel Discretion.--Except as otherwise provided in 
this chapter, a Special Counsel appointed under this chapter shall 
determine whether and to what extent to inform or consult with the 
Attorney General or others within the Department about the conduct of 
the duties and responsibilities of the Special Counsel.
``Sec. 599K-7. Conduct and accountability generally
    ``(a) In General.--A Special Counsel appointed under this chapter 
shall--
            ``(1) comply with the rules, regulations, procedures, 
        practices, and policies of the Department; and
            ``(2) consult with appropriate offices within the 
        Department for guidance with respect to established practices, 
        policies, and procedures of the Department, including ethics 
        and security regulations and procedures.
    ``(b) Extraordinary Circumstances.--If a Special Counsel appointed 
under this chapter determines that the extraordinary circumstances of 
any particular decision would render compliance with required review 
and approval procedures by the designated departmental component 
inappropriate, the Special Counsel may consult directly with the 
Attorney General.
    ``(c) Limitation on Supervision.--
            ``(1) In general.--A Special Counsel appointed under this 
        chapter shall not be subject to the day-to-day supervision of 
        any official of the Department, except that the Attorney 
        General may request that the Special Counsel provide an 
        explanation for any investigative or prosecutorial step, and 
        may after review conclude that the action is so inappropriate 
        or unwarranted under established practices of the Department 
        that it should not be pursued.
            ``(2) Review.--In conducting a review described in 
        paragraph (1), the Attorney General shall give great weight to 
        the views of the Special Counsel. If the Attorney General 
        concludes that a proposed action by a Special Counsel should 
        not be pursued, the Attorney General shall notify Congress in 
        accordance with section 599K-10(a)(3).
    ``(d) Disciplinary Action for Misconduct.--A Special Counsel 
appointed under this chapter, and any staff of the Special Counsel, 
shall be subject to disciplinary action for misconduct and breach of 
ethical duties under the same standards and to the same extent as are 
other employees of the Department. Inquiries into such matters shall be 
handled through the appropriate office of the Department upon the 
approval of the Attorney General.
``Sec. 599K-8. Limitation on removal of Special Counsel and certain 
              other officials
    ``(a) In General.--A Special Counsel appointed under this chapter, 
or any other official appointed by the Attorney General who exercises a 
similar degree of independence from the normal chain of command of the 
Department, may be removed from office only by the personal action of 
an Attorney General who has been confirmed to that position by the 
Senate, or the most senior Senate-confirmed officer of the Department 
listed in section 508 who is not recused from the matter.
    ``(b) Removal for Cause.--A Special Counsel or other appointed 
official described in subsection (a) may be removed only for 
misconduct, dereliction of duty, incapacity, conflict of interest, or 
other good cause, including violation of policies of the Department.
    ``(c) Notice of Removal.--
            ``(1) In general.--The Attorney General or other Department 
        official described in subsection (a), as the case may be, shall 
        provide written notice to the Special Counsel or other 
        appointed official described in subsection (a) of the specific 
        reason or reasons for the removal.
            ``(2) Effective date of removal.--Except as provided in 
        subsection (e), removal under this section shall become 
        effective on the date that is 10 days after the date on which 
        the written notice was provided under paragraph (1).
    ``(d) Timing.--Not later than 10 days after the date on which 
written notice was provided under subsection (c)(1), the Special 
Counsel or other appointed official described in subsection (a), as the 
case may be, may file an action in the United States District Court for 
the District of Columbia challenging the removal in accordance with 
subsection (e).
    ``(e) Review.--
            ``(1) In general.--An individual that received written 
        notice under subsection (c)(1) may file an action in accordance 
        with paragraph (2) that the removal was in violation of this 
        chapter.
            ``(2) Requirements.--Any action filed under this subsection 
        shall be heard and determined by a court of 3 judges not later 
        than 14 days after the date on which the action is filed in 
        accordance with the provisions of section 2284, and an appeal 
        of any final decision shall lie to the Supreme Court.
            ``(3) Relief.--If a court determines that the removal of 
        the individual who filed an action under this subsection 
        violates this chapter, the removal shall not take effect. The 
        court may also provide other appropriate relief.
            ``(4) Status during proceedings.--
                    ``(A) In general.--At the request of the individual 
                who filed an action under this subsection, the court 
                shall determine whether the individual shall remain in 
                office during the pendency of the action described in 
                paragraph (2). If an individual makes such a request, 
                the court shall order that the effective date of the 
                removal shall be stayed until the court rules on the 
                request.
                    ``(B) Preservation of materials.--During the 
                pendency of an action filed under this subsection, the 
                personnel, documents, and materials of the Special 
                Counsel or other appointed official described in 
                subsection (a) shall be preserved.
                    ``(C) Limitation.--During the pendency of an action 
                filed under this subsection, a replacement for the 
                Special Counsel or other appointed official described 
                in subsection (a) who is challenging the removal shall 
                not be designated.
``Sec. 599K-9. Notification and reports by the Special Counsel
    ``(a) Budget.--
            ``(1) In general.--A Special Counsel appointed under this 
        chapter shall be provided all appropriate resources by the 
        Department.
            ``(2) Proposed budget.--Not later than 60 days after the 
        date on which a Special Counsel is appointed under this 
        chapter, the Special Counsel shall develop a proposed budget 
        for the current fiscal year with the assistance of the Justice 
        Management Division for review and approval by the Attorney 
        General.
            ``(3) Establishment of budget.--Based on a proposal 
        developed under paragraph (2), the Attorney General shall 
        establish a budget for the operations of the Special Counsel, 
        which shall include a request for assignment of personnel, with 
        a description of the qualifications needed.
            ``(4) Additional budget requests.--After a budget has been 
        established under paragraph (3), the Special Counsel shall, not 
        later than 90 days before the beginning of each fiscal year, 
        report to the Attorney General the status of the investigation, 
        and provide a budget request for the following fiscal year. The 
        Attorney General shall determine whether the investigation 
        should continue and, if so, establish the budget for the next 
        fiscal year.
    ``(b) Notification of Significant Events.--A Special Counsel 
appointed under this chapter shall notify the Attorney General of 
events in the course of the investigation by the Special Counsel in 
conformity with the guidelines of the Department with respect to Urgent 
Reports.
    ``(c) Closing Documentation.--
            ``(1) In general.--At the conclusion of the work of a 
        Special Counsel appointed under this chapter, the Special 
        Counsel shall submit to the Attorney General, the Chairman and 
        Ranking Minority Member of the Committee on the Judiciary of 
        the Senate, and the Chairman and Ranking Minority Member of the 
        Committee on the Judiciary of the House of Representatives a 
        report detailing the factual findings of the investigation and 
        explaining the prosecution or declination decisions reached by 
        the Special Counsel. If the Attorney General granted or denied 
        a request from the Special Counsel to change the Special 
        Counsel's jurisdiction under section 599K-4(b), that 
        information shall be included.
            ``(2) Information required.--The report submitted under 
        paragraph (1) shall include information regarding significant 
        prosecutorial decisions and significant expenditures by the 
        Office of the Special Counsel.
``Sec. 599K-10. Notification and reports by the Attorney General
    ``(a) In General.--If the Attorney General appoints a Special 
Counsel under this chapter, the Attorney General shall submit to the 
Chairman and Ranking Minority Member of the Committee on the Judiciary 
of the Senate and the Chairman and Ranking Minority Member of the 
Committee on the Judiciary of the House of Representatives a written 
notification, with a report explaining--
            ``(1) the appointment of the Special Counsel;
            ``(2) the intent of the Attorney General to remove the 
        Special Counsel; and
            ``(3) after the conclusion of the investigation of the 
        Special Counsel, to the extent consistent with applicable law, 
        any instance in which the Attorney General concluded that a 
        proposed action by a Special Counsel was so inappropriate or 
        unwarranted under established Departmental practices that it 
        should not be pursued.
    ``(b) Notice of Appointment.--A notification and report under 
subsection (a)(1) shall--
            ``(1) be submitted on the date on which the Special Counsel 
        is appointed; and
            ``(2) include--
                    ``(A) the factual basis necessitating the 
                appointment of the Special Counsel, including a 
                description of any effort made before appointing the 
                Special Counsel to mitigate potential conflicts of 
                interests of relevant individuals or within relevant 
                components; and
                    ``(B) a specific factual statement of the matter to 
                be investigated.
    ``(c) Notice of Removal.--A notification and report under 
subsection (a)(2) shall--
            ``(1) be submitted not later than 30 days before the date 
        on which notice is provided to the Special Counsel under 
        section 599K-8(c)(1); and
            ``(2) include the reasons for the removal.
``Sec. 599K-11. No creation of rights
    ``Except as provided in section 599K-8, this chapter shall not be 
construed to create any rights, substantive or procedural, enforceable 
at law or equity, by any person or entity, in any matter, civil, 
criminal, or administrative.''.
    (b) Table of Chapters.--The table of chapters for part II of title 
28, United States Code, is amended by inserting after the item relating 
to chapter 40A the following:

``40B. Special Counsel......................................  599K-1''.
    (c) Application to Existing Special Counsel.--
            (1) In general.--For purposes of applying chapter 40B of 
        title 28, United States Code, as added by this Act, to a 
        Special Counsel who is subject to any provision of part 600 of 
        title 28, Code of Federal Regulations, and who is serving as a 
        Special Counsel on the date of enactment of this Act--
                    (A) in addition to the authority under which the 
                Special Counsel was originally appointed, the Special 
                Counsel shall be deemed to be a Special Counsel 
                appointed under such chapter 40B; and
                    (B) such chapter 40B shall apply for purposes of 
                any action described in such chapter 40B by or with 
                respect to the Special Counsel taken on after the date 
                of enactment of this Act (including removing the 
                Special Counsel from office).
            (2) Removal before enactment.--
                    (A) In general.--Section 599K-8 of title 28, United 
                States Code, as added by this Act, shall apply with 
                respect to an individual who was--
                            (i) appointed as a Special Counsel after 
                        January 1, 2017;
                            (ii) subject to any provision of part 600 
                        of title 28, Code of Federal Regulations; and
                            (iii) removed from office before the date 
                        of enactment of this Act.
                    (B) Implementation.--If there is a Special Counsel 
                who is described in subparagraph (A)--
                            (i) not later than 10 days after the date 
                        of enactment of this Act, the Attorney General 
                        shall provide written notice relating to the 
                        removal--
                                    (I) to the Special Counsel, that 
                                provides the information required under 
                                section 599K-8(c)(1) of title 28, 
                                United States Code, as added by this 
                                Act; and
                                    (II) to the Chairman and Ranking 
                                Minority Member of the Committee on the 
                                Judiciary of the Senate and the 
                                Chairman and Ranking Minority Member of 
                                the Committee on the Judiciary of the 
                                House of Representatives, that provides 
                                the information required under section 
                                599K-10(c)(2) of such title;
                            (ii) not later than 10 days after the date 
                        on which written notice is provided under 
                        clause (i)(I), the Special Counsel may file an 
                        action challenging the removal in accordance 
                        with section 599K-8(e) of such title;
                            (iii) in an action filed under clause (ii), 
                        the court shall determine whether the removal 
                        of the Special Counsel meets the requirements 
                        for removal under subsections (a), (b), and 
                        (c)(1) of section 599K-8 of such title; and
                            (iv) if a court determines that the removal 
                        of the individual who filed an action under 
                        clause (ii) violates a requirement described in 
                        clause (iii), the court may order reinstatement 
                        or provide other appropriate relief.
    (d) Severability.--If any provision of this Act, or an amendment 
made by this Act, or the application of such provision or amendment to 
any person or circumstance is held to be invalid or unconstitutional, 
the remainder of this Act, and the amendments made by this Act, and the 
application of such provisions and amendments to any person or 
circumstance shall remain and shall not be affected thereby.
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