[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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