[Congressional Record Volume 140, Number 63 (Thursday, May 19, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 19, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
CONFERENCE REPORT ON S. 24, INDEPENDENT COUNSEL REAUTHORIZATION ACT OF 
                                  1994

  Mr. BROOKS submitted the following conference report and statement on 
the Senate bill (S. 24) to reauthorize the independent counsel law for 
an additional 5 years, and for other purposes:

                  Conference Report (H. Rept. 103-511)

       The committee of conference on the disagreeing votes of the 
     two Houses on the bill (S. 24), to reauthorize the 
     independent counsel law for an additional 5 years, and for 
     other purposes, have agreed to recommend and do recommend to 
     their respective Houses as follows:
       That the Senate recede from its disagreement to the 
     amendment of the House to the text of the bill and agree to 
     the same with an amendment as follows:
       In lieu of the matter proposed to be inserted by the House 
     amendment, insert the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Independent Counsel 
     Reauthorization Act of 1994''.

     SEC. 2. FIVE-YEAR REAUTHORIZATION.

       Section 599 of title 28, United States Code, is amended by 
     striking ``1987'' and inserting ``1994''.

     SEC. 3. ADDED CONTROLS.

       (a) Cost Controls and Administrative Support.--Section 594 
     of title 28, United States Code, is amended by adding at the 
     end the following new subsection:
       ``(l) Cost Controls and Administrative Support.--
       ``(1) Cost controls.--
       ``(A) In general.--An independent counsel shall--
       ``(i) conduct all activities with due regard for expense;
       ``(ii) authorize only reasonable and lawful expenditures; 
     and
       ``(iii) promptly, upon taking office, assign to a specific 
     employee the duty of certifying that expenditures of the 
     independent counsel are reasonable and made in accordance 
     with law.
       ``(B) Liability for invalid certification.--An employee 
     making a certification under subparagraph (A)(iii) shall be 
     liable for an invalid certification to the same extent as a 
     certifying official certifying a voucher is liable under 
     section 3528 of title 31.
       ``(C) Department of justice policies.--An independent 
     counsel shall comply with the established policies of the 
     Department of Justice respecting expenditures of funds, 
     except to the extent that compliance would be inconsistent 
     with the purposes of this chapter.
       ``(2) Administrative support.--The Director of the 
     Administrative Office of the United States Courts shall 
     provide administrative support and guidance to each 
     independent counsel. No officer or employee of the 
     Administrative Office of the United States Courts shall 
     disclose information related to an independent counsel's 
     expenditures, personnel, or administrative acts or 
     arrangements without the authorization of the independent 
     counsel.
       ``(3) Office space.--The Administrator of General Services, 
     in consultation with the Director of the Administrative 
     Office of the United States Courts, shall promptly provide 
     appropriate office space for each independent counsel. Such 
     office space shall be within a Federal building unless the 
     Administrator of General Services determines that other 
     arrangements would cost less. Until such office space is 
     provided, the Administrative Office of the United States 
     Courts shall provide newly appointed independent counsels 
     immediately upon appointment with appropriate, temporary 
     office space, equipment, and supplies.''.
       (b) Independent Counsel Per Diem Expenses.--Section 594(b) 
     of title 28, United States Code, is amended--
       (1) by striking ``(b) Compensation.--An'' and inserting the 
     following:
       ``(b) Compensation.--
       ``(1) In general.--An''; and
       (2) by adding at the end the following new paragraphs:
       ``(2) Travel expenses.--Except as provided in paragraph 
     (3), an independent counsel and persons appointed under 
     subsection (c) shall be entitled to the payment of travel 
     expenses as provided by subchapter I of chapter 57 of title 
     5, United States Code, including travel, per diem, and 
     subsistence expenses in accordance with section 5703 of title 
     5.
       ``(3) Travel to primary office.--
       ``(A) In general.--After 1 year of service under this 
     chapter, an independent counsel and persons appointed under 
     subsection (c) shall not be entitled to the payment of 
     travel, per diem, or subsistence expenses under subchapter I 
     of chapter 57 of title 5, United States Code, for the purpose 
     of commuting to or from the city in which the primary office 
     of the independent counsel or person is located. The 1-year 
     period may be extended by 6 months if the employee assigned 
     duties under subsection (l)(1)(A)(iii) certifies that the 
     payment is in the public interest to carry out the purposes 
     of this chapter.
       ``(B) Relevant factors.-- In making any certification under 
     this paragraph with respect to travel and subsistence 
     expenses of an independent counsel or person appointed under 
     subsection (c), such employee shall consider, among other 
     relevant factors--
       ``(i) the cost to the Government of reimbursing such travel 
     and subsistence expenses;
       ``(ii) the period of time for which the independent counsel 
     anticipates that the activities of the independent counsel or 
     person, as the case may be, will continue;
       ``(iii) the personal and financial burdens on the 
     independent counsel or person, as the case may be, of 
     relocating so that such travel and subsistence expenses would 
     not be incurred; and
       ``(iv) the burdens associated with appointing a new 
     independent counsel, or appointing another person under 
     subsection (c), to replace the individual involved who is 
     unable or unwilling to so relocate.''.
       (c) Independent Counsel Employee Pay Comparability.--
     Section 594(c) of title 28, United States Code, is amended by 
     striking the last sentence and inserting: ``Such employees 
     shall be compensated at levels not to exceed those payable 
     for comparable positions in the Office of United States 
     Attorney for the District of Columbia under sections 548 and 
     550, but in no event shall any such employee be compensated 
     at a rate greater than the rate of basic pay payable for 
     level ES-4 of the Senior Executive Service Schedule under 
     section 5382 of title 5, as adjusted for the District of 
     Columbia under section 5304 of that title regardless of the 
     locality in which an employee is employed.''.
       (d) Ethics Enforcement.--Section 594(j) of title 28, United 
     States Code, is amended by adding at the end the following 
     new paragraph:
       ``(5) Enforcement.--The Attorney General and the Director 
     of the Office of Government Ethics have authority to enforce 
     compliance with this subsection.''.
       (e) Compliance With Policies of the Department of 
     Justice.--Section 594(f) of title 28, United States Code, is 
     amended--
       (1) by striking ``shall, except where not possible, 
     comply'' and inserting ``shall, except to the extent that to 
     do so would be inconsistent with the purposes of this 
     chapter, comply'';
       (2) by adding at the end the following: ``To determine 
     these policies and policies under subsection (l)(1)(B), the 
     independent counsel shall, except to the extent that doing so 
     would be inconsistent with the purposes of this chapter, 
     consult with the Department of Justice.'';
       (3) by striking ``An independent'' and inserting the 
     following:
       ``(1) In general.--An independent''; and
       (4) by adding at the end the following new paragraph:
       ``(2) National security.--An independent counsel shall 
     comply with guidelines and procedures used by the Department 
     in the handling and use of classified material.''.
       (f) Publication of Reports.--Section 594(h) of title 28, 
     United States Code, is amended by adding at the end the 
     following new paragraph:
       ``(3) Publication of reports.--At the request of an 
     independent counsel, the Public Printer shall cause to be 
     printed any report previously released to the public under 
     paragraph (2). The independent counsel shall certify the 
     number of copies necessary for the public, and the Public 
     Printer shall place the cost of the required number to the 
     debit of such independent counsel. Additional copies shall be 
     made available to the public through the depository library 
     program and Superintendent of Documents sales program 
     pursuant to sections 1702 and 1903 of title 44.''.
       (g) Annual Reports to Congress.--Section 595(a)(2) of title 
     28, United States Code, is amended by striking ``such 
     statements'' and all that follows through ``appropriate'' and 
     inserting ``annually a report on the activities of the 
     independent counsel, including a description of the progress 
     of any investigation or prosecution conducted by the 
     independent counsel. Such report may omit any matter that in 
     the judgment of the independent counsel should be kept 
     confidential, but shall provide information adequate to 
     justify the expenditures that the office of the independent 
     counsel has made''.
       (h) Periodic Reappointment of Independent Counsel.--Section 
     596(b)(2) of title 28, United States Code, is amended by 
     adding at the end the following new sentence: ``If the 
     Attorney General has not made a request under this paragraph, 
     the division of the court shall determine on its own motion 
     whether termination is appropriate under this paragraph no 
     later than 2 years after the appointment of an independent 
     counsel, at the end of the succeeding 2-year period, and 
     thereafter at the end of each succeeding 1-year period.''.
       (i) Audits by the Comptroller General.--Section 596(c) of 
     title 28, United States Code, is amended to read as follows:
       ``(c) Audits.--(1) On or before June 30 of each year, an 
     independent counsel shall prepare a statement of expenditures 
     for the 6 months that ended on the immediately preceding 
     March 31. On or before December 31 of each year, an 
     independent counsel shall prepare a statement of expenditures 
     for the fiscal year that ended on the immediately preceding 
     September 30. An independent counsel whose office is 
     terminated prior to the end of the fiscal year shall prepare 
     a statement of expenditures on or before the date that is 90 
     days after the date on which the office is terminated.
       ``(2) The Comptroller General shall--
       ``(A) conduct a financial review of a mid-year statement 
     and a financial audit of a year-end statement and statement 
     on termination; and
       ``(B) report the results to the Committee on the Judiciary, 
     Committee on Governmental Affairs, and Committee on 
     Appropriations of the Senate and the Committee on the 
     Judiciary, Committee on Government Operations, and Committee 
     on Appropriations of the House of Representatives not later 
     than 90 days following the submission of each such 
     statement.''.
       (j) Threshold Inquiry.--Section 591(d)(2) of title 28, 
     United States Code, is amended by striking ``15'' each time 
     it appears and inserting ``30''.
       (k) Recusal.--Section 591(e) of title 28, United States 
     Code, is amended to read as follows:
       ``(e) Recusal of Attorney General.--
       ``(1) When recusal is required.--(A) If information 
     received under this chapter involves the Attorney General, 
     the next most senior official in the Department of Justice 
     who is not also recused shall perform the duties assigned 
     under this chapter to the Attorney General.
       ``(B) If information received under this chapter involves a 
     person with whom the Attorney General has a personal or 
     financial relationship, the Attorney General shall recuse 
     himself or herself by designating the next most senior 
     official in the Department of Justice who is not also recused 
     to perform the duties assigned under this chapter to the 
     Attorney General.
       ``(2) Requirements for recusal determination.--Before 
     personally making any other determination under this chapter 
     with respect to information received under this chapter, the 
     Attorney General shall determine under paragraph (1)(B) 
     whether recusal is necessary. The Attorney General shall set 
     forth this determination in writing, identify the facts 
     considered by the Attorney General, and set forth the reasons 
     for the recusal. The Attorney General shall file this 
     determination with any notification or application submitted 
     to the division of the court under this chapter with respect 
     to such information.''.
       (l) Disclosure of Information.--Section 592(e) of title 28, 
     United States Code, is amended by inserting after ``Except as 
     otherwise provided in this chapter'' the following: ``or as 
     is deemed necessary for law enforcement purposes''.
       (m) Clarification of Authority To Use Department of Justice 
     Personnel.--Section 594(d)(1) of title 28, United States 
     Code, is amended by adding at the end the following: ``At the 
     request of an independent counsel, prosecutors, 
     administrative personnel, and other employees of the 
     Department of Justice may be detailed to the staff of the 
     independent counsel.''.
       (n) Attorneys' Fees.--Section 593(f) of title 28, United 
     States Code, is amended--
       (1) in the last sentence of paragraph (1) by inserting 
     before ``Attorney General'' the following: ``the independent 
     counsel who conducted the investigation and''; and
       (2) in paragraph (2)
       (A) by striking ``may direct'' and inserting ``shall direct 
     such independent counsel and''; and
       (B) by striking all after ``subsection,'' and inserting the 
     following: ``addressing--
       ``(A) the sufficiency of the documentation;
       ``(B) the need or justification for the underlying item;
       ``(C) whether the underlying item would have been incurred 
     but for the requirements of this chapter; and
       ``(D) the reasonableness of the amount of money 
     requested.''.
       (o) Final Report.--Section 594(h)(1)(B) of title 28, United 
     States Code, is amended by striking ``, and the reasons'' and 
     all that follows through the period and inserting a period.

     SEC. 4. MEMBERS OF CONGRESS.

       (a) Discretionary Authority.--Section 591(c) of title 28, 
     United States Code, is amended to read as follows:
       ``(c) Preliminary Investigation With Respect to Other 
     Persons.--
       ``(1) In general.--When the Attorney General determines 
     that an investigation or prosecution of a person by the 
     Department of Justice may result in a personal, financial, or 
     political conflict of interest, the Attorney General may 
     conduct a preliminary investigation of such person in 
     accordance with section 592 if the Attorney General receives 
     information sufficient to constitute grounds to investigate 
     whether that person may have violated Federal criminal law 
     other than a violation classified as a Class B or C 
     misdemeanor or an infraction.
       ``(2) Members of congress.--When the Attorney General 
     determines that it would be in the public interest, the 
     Attorney General may conduct a preliminary investigation in 
     accordance with section 592 if the Attorney General receives 
     information sufficient to constitute grounds to investigate 
     whether a Member of Congress may have violated any Federal 
     criminal law other than a violation classified as a Class B 
     or C misdemeanor or an infraction.''.
       (b) Postemployment Coverage.--Section 591(b) of title 28, 
     United States Code, is amended--
       (1) by striking paragraphs (6) and (7);
       (2) by redesignating paragraph (8) as paragraph (6), and, 
     at the end of that paragraph, striking the period and 
     inserting ``; and''; and
       (3) by adding at the end the following new paragraph:
       ``(7) any individual who held an office or position 
     described in paragraph (1), (2), (3), (4), or (5) for 1 year 
     after leaving the office or position.''.

     SEC. 5. GROUNDS FOR REMOVAL.

       Section 596(a)(1) of title 28, United States Code, is 
     amended by striking ``physical disability, mental 
     incapacity'' and inserting ``physical or mental disability 
     (if not prohibited by law protecting persons from 
     discrimination on the basis of such a disability),''.

     SEC. 6. REPORT ON WHITE HOUSE OFFICE PERSONNEL.

       (a) Submission of Report.--On July 1 of each year, the 
     President shall submit a report described in subsection (b) 
     to the Committee on Governmental Affairs of the Senate and 
     the Committee on Government Operations of the House of 
     Representatives.
       (b) Contents.--A report under subsection (a) shall, except 
     as provided in subsection (c), include--
       (1) a list of each individual--
       (A) employed by the White House Office; or
       (B) detailed to the White House Office; and
       (2) with regard to each individual described in paragraph 
     (1), the individual's--
       (A) name;
       (B) position and title; and
       (C) annual rate of pay.
       (c) Exclusion From Report.--If the President determines 
     that disclosure of any item of information described in 
     subsection (b) with respect to any particular individual 
     would not be in the interest of the national defense or 
     foreign policy of the United States--
       (1) a report under subsection (a) shall--
       (A) exclude such information with respect to that 
     individual; and
       (B) include a statement of the number of individuals with 
     respect to whom such information has been excluded; and
       (2) at the request of the Committee on Governmental Affairs 
     of the Senate or the Committee on Government Operations of 
     the House of Representatives, the information that was 
     excluded from the report shall be made available for 
     inspection by such committee.

     SEC. 7. TRANSITION PROVISIONS.

       (a) In General.--Except as provided in this section, the 
     amendments made by this Act shall apply with respect to 
     independent counsels appointed before, on, or after the date 
     of enactment of this Act.
       (b) Assignment Of Employee To Certify Expenditures.--An 
     independent counsel appointed prior to the date of enactment 
     of this Act shall assign to an employee the duty of 
     certifying expenditures, as required by section 594(l) of 
     title 28, United States Code, as added by section 3(a), by 
     the date that is 30 days after the date of enactment of this 
     Act.
       (c) Office Space.--The Administrator of General Services, 
     in applying section 594(l)(3) of title 28, United States 
     Code, as added by section 3(a), to determine whether the 
     office of an independent counsel appointed prior to the date 
     of enactment of this Act should be moved to a Federal 
     building, shall take into account the moving, legal, and 
     other expenses that might arise if the office were moved.
       (d) Travel And Subsistence Expenses.--For purposes of the 
     restrictions on reimbursement of travel and subsistence 
     expenses of an independent counsel and employees of an office 
     of independent counsel contained in paragraph (3) of section 
     594(b) of title 28, United States Code, as amended by section 
     3(b), as applied to the office of an independent counsel 
     appointed before the date of enactment of this Act, the 1-
     year service period shall begin on the date of enactment of 
     this Act.
       (e) Rates of Compensation.--The limitation on rates of 
     compensation of employees of an office of independent counsel 
     contained in the last sentence of section 594(c) of title 28, 
     United States Code, as amended by section 3(c), shall not be 
     applied to cause a reduction in the rate of compensation of 
     an employee appointed before the date of enactment of this 
     Act.
       (f) Periodic Reappointment.--The determinations by the 
     division of the court contained in the last sentence of 
     section 596(b)(2) of title 28, United States Code, as amended 
     by section 3(h), shall, for the office of an independent 
     counsel appointed before the date of enactment of this Act, 
     be required no later than 1 year after the date of enactment 
     of this Act and at the end of each succeeding 1-year period.
       (g) Reporting Requirements.--No amendment made by this Act 
     that establishes or modifies a requirement that any person 
     submit a report to any other person with respect to an 
     activity occurring during any time period shall be construed 
     to require that a report submitted prior to the date of 
     enactment of this Act, with respect to that time period be 
     supplemented to include information with respect to such 
     activity.
       (h) Regulatory Independent Counsel.--Notwithstanding the 
     restriction in section 593(b)(2) of title 28, United States 
     Code, the division of the court described in section 49 of 
     that title may appoint as an independent counsel any 
     individual who, on the date of enactment of this Act, is 
     serving as a regulatory independent counsel under parts 600 
     and 603 of title 28, Code of Federal Regulations. If such an 
     individual is so appointed, such an independent counsel shall 
     comply with chapter 40 of title 28, United States Code, as 
     amended by this Act, in the same manner and to the same 
     extent as an independent counsel appointed before the date of 
     enactment of this Act is required to comply with that 
     chapter, except that subsection (f) of this section shall not 
     apply to such an independent counsel.
       (i) White House Personnel Report.--Section 6 shall take 
     effect on January 1, 1995.
       And the House agree to the same.
     Jack Brooks,
     John Bryant,
     Dan Glickman,
     Barney Frank,
                                Managers on the Part of the House.

     John Glenn,
     Carl Levin,
     David Pryor,
     Bill Cohen,
     Ted Stevens,
                               Managers on the Part of the Senate.

       JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE

       The managers on the part of the House and the Senate at the 
     conference on the disagreeing votes of the two Houses on the 
     amendment of the House to the bill (S. 24) to reauthorize the 
     independent counsel law for an additional 5 years, and for 
     other purposes, submit the following joint statement to the 
     House and the Senate in explanation of the effect of the 
     action agreed upon by the managers and recommended in the 
     accompanying conference report:
       The House amendment to the text of S. 24 struck out all of 
     the Senate bill after the enacting clause and inserted a 
     substitute text. The Senate recedes from its disagreement to 
     the amendment of the House with an amendment which is a 
     substitute for the Senate bill and House amendment. The 
     differences between the Senate bill, House amendment, and 
     substitute agreed to in conference are noted below, except 
     for clerical corrections, structural changes, conforming 
     changes made necessary by agreements reached by the 
     conferees, and minor drafting and clarifying changes.


      section 591(b)(6) and (7): length of postemployment coverage

     1987 law
       The 1987 independent counsel law applied on a mandatory 
     basis to certain high level executive branch officials, not 
     only while they occupied a covered office or position, but 
     also for a period of time after they left that office or 
     position. The length of mandatory postemployment coverage 
     varied from a minimum of one year to a maximum of three 
     years.
     Senate bill
       The Senate bill reduces mandatory postemployment coverage 
     from a maximum of three years to a maximum of one year. For 
     persons who leave a covered office or position within 90 days 
     of a new president's inauguration, the Senate bill eliminates 
     the one-year period of postemployment coverage.
     House amendment
       The House amendment follows the 1987 law.
     Conference agreement
       The conference agreement strikes a compromise between the 
     Senate and House provisions by limiting mandatory 
     postemployment coverage to one year after a person leaves a 
     covered office or position, regardless of whether the 
     departure occurs during the term of office of the President 
     who appointed that person or after the expiration of that 
     President's term.


     Section 591(c): Discretionary Coverage and Members of Congress

     1987 law
       The 1987 law provided the Attorney General with 
     discretionary authority to use the independent counsel 
     process for any person whose investigation or prosecution by 
     the Department of Justice ``may result in a personal, 
     financial or political conflict of interest.'' This 
     discretionary authority permitted the Attorney General, if a 
     conflict of interest were present, to use the independent 
     counsel process to investigate Members of Congress. However, 
     Members of Congress were not specifically identified as 
     falling within that general category of coverage.
     Senate bill
       The Senate bill gives the Attorney General specific 
     discretionary authority to use the independent counsel 
     process to investigate Members of Congress. It broadens the 
     standard for invoking the process with respect to Members 
     from requiring a conflict of interest to requiring the 
     Attorney General to find it would be in the public interest. 
     This broader standard would permit the Attorney General to 
     use the independent counsel process for Members of Congress 
     in cases of perceived as well as actual conflicts of 
     interest. In addition, the Senate bill rewords the general 
     discretionary provision to simplify it and to authorize the 
     Attorney General to use the independent counsel process to 
     investigate a ``matter'' as well as a person.
     House amendment
       The House amendment also gives the Attorney General 
     specific discretionary authority to use the independent 
     counsel process with respect to Members of Congress. The 
     House amendment does not otherwise change the general 
     discretionary provision that appeared in the 1987 law.
     Conference agreement
       The conference agreement follows the Senate bill, except 
     that the language giving the Justice Department general 
     discretionary authority to use the independent counsel 
     process to investigate a ``matter'' as well as any person is 
     deleted, because it would in effect substantially lower the 
     threshold for use of the general discretionary provision. The 
     conference agreement makes no change from the 1987 law in the 
     substantive reach or scope of the general discretionary 
     provision.


              Section 591(e): Recusal by Attorney General

     1987 law
       The 1987 law set forth the standards and procedures 
     governing recusal by the Attorney General in a matter being 
     handled under the independent counsel law.
     Senate bill
       The Senate bill rewords the provision to make it clear that 
     recusal is automatic in any matter in which the Attorney 
     General is personally involved.
     House amendment
       The House amendment follows the 1987 law.
     Conference agreement
       The conference agreement follows the Senate bill.


                 Section 592(a)(2)(B): Criminal Intent

     1987 law
       The 1987 law set forth with the Attorney General could 
     close a matter under the independent counsel law based upon a 
     determination that an investigatory subject lacked the intent 
     necessary for a crime to have been committed. The law 
     prohibited any consideration of intent in the context of a 
     threshold inquiry under section 591(d), and permitted closure 
     of a matter after a preliminary investigation under section 
     592 only if the Attorney General determined there was ``clear 
     and convincing evidence'' of a lack of criminal intent.
     Senate bill
       The Senate bill permits the Attorney General to close a 
     matter after either a threshold inquiry under section 591(d) 
     or a preliminary investigation under section 592, if the 
     Attorney General determines there are ``no reasonable grounds 
     to believe that the subject acted'' with criminal intent and 
     ``no reasonable possibility that further investigation would 
     develop such evidence.''
     House amendment
       The House amendment follows the 1987 law.
     Conference agreement
       The conference agreement follows the House bill. Congress 
     believes that the Attorney General should rarely close a 
     matter under the independent counsel law based upon finding a 
     lack of criminal intent, due to the subjective judgments 
     required and the limited role accorded the Attorney General 
     in the independent counsel process. Congress also believes 
     that at least one Attorney General abused his authority in 
     this area, that this abuse was the impetus for the statutory 
     restriction in the expired law, and that a statutory 
     restriction remains necessary to prevent future problems.


              section 592(e): disclosure of court filings

     1987 law
       The 1987 law prohibited employees of the Justice Department 
     and of an independent counsel from disclosing any filing with 
     the special court to any person outside their office without 
     first obtaining a court order.
     Senate bill
       The Senate bill creates a limited exception to this 
     nondisclosure provision by authorizing disclosure of court 
     filings to outside persons for law enforcement purposes.
     House amendment
       The House amendment follows the 1987 law.
     Conference agreement
       The conference agreement follows the Senate bill with a 
     minor change. The Congress intends that this exception should 
     be narrowly construed to permit, for example, giving copies 
     of court filings to an IRS investigator to facilitate 
     examination of a tax matter under the independent counsel's 
     purview or to an agency Inspector General or state prosecutor 
     performing a separate but possibly related criminal 
     investigation to determine whether coordination of the 
     criminal case is appropriate.
       In determining whether a proposed disclosure is deemed 
     necessary for law enforcement purposes, Congress intends 
     independent counsels and attorneys for the government to be 
     guided by the law enforcement exception to the grand jury 
     secrecy rules found in Rule 6(e)(3)(A)(ii) of the Federal 
     Rules of Criminal Procedure. That rule allows otherwise 
     prohibited disclosures to be made ``to such governmental 
     personnel (including personnel of a state or subdivision of a 
     state) as are deemed necessary by an attorney for the 
     government to assist an attorney for the government in the 
     performance of such attorney's duty to enforce federal 
     criminal law.'' If no such law enforcement purpose is 
     present, a court order must be obtained prior to disclosure.


                     section 593(f): attorney fees

     1987 law
       The 1987 law set forth the standards and procedures 
     governing when persons may recover attorney fees incurred in 
     response to independent counsel proceedings. Essentially, to 
     recover fees, a person must have been an unindicted subject 
     of an independent counsel's investigation and incurred fees 
     which would not have been incurred but for the requirements 
     of the independent counsel law. Fee requests were decided by 
     the special court which could ask the Attorney General to 
     file a written evaluation of the reasonableness of the 
     amounts requested, the supporting documentation and the need 
     or justification for each expense.
     Senate bill
       The Senate bill follows the 1987 law, but adds a sentence 
     stating that no award of attorney fees may be made for fees 
     that would have been incurred if the investigation had been 
     conducted by the Department of Justice. The purpose of this 
     sentence is not to change the standard for awarding fees, but 
     to help illuminate application of the provision which permits 
     reimbursement of only those fees that ``would not have been 
     incurred but for the requirements of the independent counsel 
     law'' (the ``but-for'' requirement). The new language 
     indicates that, in judging whether the but-for requirement 
     has been met, a significant factor the special court must 
     consider is whether these fees would have been incurred if 
     the Justice Department had handled the investigation instead 
     of the independent counsel. The Senate bill also expands the 
     written analysis by the Justice Department on fee requests by 
     allowing it to comment on whether the but-for requirement has 
     been satisfied.
     House amendment
       The House amendment follows the 1987 law.
     Conference agreement
       The conference agreement strikes a compromise between the 
     Senate and House provisions. It retains the Senate language 
     requiring an expanded analysis of each attorney fee request, 
     and adds a provision directing the special court to obtain 
     this analysis from not only the Department of Justice, but 
     also the independent counsel who handled the investigation. 
     The conference agreement drops the Senate language 
     conditioning payment of attorney fees on whether the same 
     fees would have been incurred if the matter had been handled 
     by the Justice Department, because that concept is already 
     addressed in the existing but-for requirement.
       Since the inception of the attorney fee provision, Congress 
     has intended it to be narrowly construed. The conferees 
     believe detailed analyses of fee requests by both the 
     Department and independent counsel, including application of 
     the but-for requirement, will aid the special court in 
     keeping to a narrow construction.
       Since the last reauthorization of the independent counsel 
     statute in 1987, a number of decisions awarding attorney fees 
     have been issued by the special court. The conferees believe 
     that several of these decisions were overly generous in 
     interpreting the attorney fee provision.
       Illustrative of the conferees' concerns is the 1993 
     decision awarding attorney fees to former Secretary of State 
     George Shultz In re: Oliver L. North, Shultz Fee Application, 
     December 7, 1993). In that decision, the court found that the 
     but-for requirement was met in part because, ``in the 
     experience of the Court, it is not reasonable to expect that 
     a professional prosecutor'' would begin to treat a witness as 
     the subject of an investigation ``four and one-half years 
     after the commencement''' of the case. Congress did not 
     intend the but-for requirement to be used as a vehicle for 
     the special court to rule on the wisdom or timing of an 
     independent counsel's prosecutorial decisions. The opinion 
     also held that the but-for requirement was met in part 
     because the investigation centered on violation of the Boland 
     Amendment, which the Justice Department had determined was 
     not a criminal statute. In fact, the independent counsel 
     subsequently indicated that the Shultz investigation centered 
     on false testimony and concealed documents relating to Iran 
     arms sales and not at all on the Boland Amendment. This 
     misreading of the basis of the investigation may have been 
     the result of the court's decision to handle the fee 
     application under seal, on an ex parte basis, and without its 
     usual practice of affording the independent counsel an 
     opportunity to comment. In another case, the court appears to 
     have awarded attorney fees to a subject, because it surmised 
     that had the Attorney General been able to use a grand jury 
     during the preliminary investigation, the case might have 
     been closed after ``a non-public summary investigation.''
       Such recent court decisions suggest that the special court 
     may be viewing the attorney fee provision as one which should 
     routinely result in fee awards. That has not been Congress' 
     intent because, were it not for the existence of the 
     independent counsel statute, the Department of Justice may 
     well have investigated these same matters and, had it done 
     so, no attorney fees would be recoverable under any 
     circumstances. The court has, on occasion, accurately quoted 
     legislative history stating that an attorney fee award under 
     the independent counsel law ``is warranted, if at all, in 
     only rare instance'' and ``should not become a routine 
     event.'' In reauthorizing the statute, the Congress reaffirms 
     its original intent, as reflected in legislative history, 
     that the special court construe the but-for requirement of 
     the attorney fee provision narrowly.
       Finally, the conferees not the special court's decision in 
     the Shultz matter that an hourly rate of $370 is reasonable 
     under the law. The court observed that the Justice Department 
     describes this rate as ``extraordinarily high,'' but stated 
     that the law ``provides no particular guidance for our 
     determination of standards of reasonableness.'' It also cites 
     two opinions from 1989 and 1990, subsequent to the 1987 
     reauthorization of the law, approving similar hourly rates.
       In response to the court's invitation to provide guidance 
     in evaluating the reasonableness of hourly rates requested by 
     defense counsel under the independent counsel law, the 
     conferees note that Congress did not intend that properly 
     recoverable attorney fees under this statute be construed to 
     be what the market will bear in the private sector. Rather, 
     Congress intends that the reasonableness of attorney fee 
     requests under the independent counsel law be judged, not 
     solely with reference to the rates commanded by expensive 
     legal counsel, but also with reference to what cost is 
     reasonable for the taxpayers to bear.
       Three statutes provide the special court with the guidance 
     it seeks in evaluating the reasonableness of attorney fees 
     requested by defense counsel under the independent counsel 
     statute. First, by law, the independent counsel is 
     compensated at the per diem rate equal to the annual rate of 
     basic pay payable for level IV of the Executive Schedule, 
     which is currently set at $115,700. At that annual rate of 
     pay, the independent counsel's compensation is approximately 
     $55 per hour. Second, the Equal Access to Justice Act, Public 
     Law 96-481, which allows Federal courts to award attorney 
     fees to private parties in suits against the United States, 
     limits the amount of attorney fee recovery to ``$75 per hour 
     unless the court determines that an increase in the cost of 
     living or a special factor, such as the limited availability 
     of qualified attorneys for the proceedings involved, 
     justifies a higher fee.'' 28 U.S.C. 2412(d)(2)(A). Third, 
     fees to private defense counsel who are paid by the United 
     States pursuant to the Criminal Justice Act of 1984, Public 
     Law 88-455, to represent indigent defendants in Federal 
     criminal cases, are currently limited to ``$60 per hour for 
     time expended in court or before a United States magistrate 
     and $40 per hour for time reasonably expended out of court, 
     unless the Judicial Conference determines that a higher rate 
     of not in excess of $75 per hour is justified for a circuit 
     or for particular districts within a circuit, for time 
     expended in court or before a magistrate and for time 
     expended out of court.'' 18 U.S.C. 3006A(d)(1).
       These three statutes identify hourly rates, ranging from 
     $40 to $75 per hour, which Congress has determined are 
     reasonable and may be fully reimbursed with taxpayer dollars. 
     Although by design the independent counsel law does not 
     impose a specific ceiling on the hourly rates payable to 
     defense counsel, hourly rates of $300 and $400 generally so 
     far exceed other statutorily approved rates that they should 
     not be fully recoverable under the independent counsel law. 
     While individuals remain free, of course, to employ any 
     defense counsel they choose, they should be on notice that 
     the independent counsel law may not authorize payment of 
     taxpayer dollars to reimburse fully all of the fees they 
     incur.


          section 594(b): independent counsel travel expenses

     1987 law
       The 1987 law contained no explicit direction on whether an 
     independent counsel was subject to federal law regarding 
     travel expenses, whether executive or judicial branch 
     requirements applied, or whether expenses were reimbursable 
     for travel to and from an independent counsel's primary 
     office if that independent counsel resided elsewhere.
     Senate bill
       The Senate bill provides that independent counsels and 
     their staffs are subject to the same restrictions on travel 
     expenses as other federal executive branch employees. It also 
     states that, after one year of service, independent counsels 
     and their staffs are not entitled to travel and per diem 
     expenses to commute to and from the city in which their 
     primary office is located or subsistence expenses at such 
     location, except that an independent counsel's certifying 
     official may approve payment of these expenses for an 
     additional three months if the official determines the 
     investigation ``will likely be concluded within that time 
     period.''
     House amendment
       The House amendment contains similar provisions to those in 
     the Senate bill, except that the one-year limit on 
     reimbursement of expenses relating to the primary office may 
     be extended for successive 6-month periods if the certifying 
     officials, after considering certain specified factors, 
     determines payment would be in the public interest.
     Conference agreement
       The conference agreement follows the House amendment, 
     except that the one-year limit on reimbursement of expenses 
     relating to the primary office may be extended for only one 
     6-month period. The conference agreement also makes it clear 
     that the prohibition on reimbursement of travel, per diem and 
     subsistence expenses applies only to expenses incurred by 
     independent counsels or their staff in commuting to and from 
     their primary office, and does not prohibit reimbursement of 
     their expenses for traveling elsewhere.


                   section 594(c): staff compensation

     1987 law
       The 1987 law specified that staff hired by the independent 
     counsel could not be compensated at a rate exceeding the 
     maximum rate of pay payable for GS-18 of the General Schedule 
     under section 5332 of title 5. The law provided no other 
     guidance on staff compensation.
     Senate bill
       The Senate bill states that employees hired by the 
     independent counsel may not be paid at a rate greater than 
     Level IV of the Executive Schedule under 5315 of title 5. 
     This rate is comparable to the GS-18 rate which no longer 
     exists under the current General Schedule. In addition, the 
     bill directs the independent counsel to compensate staff at 
     levels not to exceed those payable for comparable positions 
     in the U.S. Attorney's Office for the District of Columbia.
     House amendment
       The House amendment provides that no more than 2 employees 
     of the independent counsel may be compensated at a rate equal 
     to Level V of the Executive Schedule and that remaining staff 
     may not be compensated at a rate greater than GS-15 of the 
     General Schedule.
     Conference agreement
       The conference agreement strikes a compromise between the 
     House and Senate provisions. It specifies that no independent 
     counsel staff may be compensated at a rate greater than Level 
     4 of the Senior Executive Service Schedule, as adjusted by 
     locality pay applicable to the District of Columbia, and that 
     no staff compensation level may exceed that payable for 
     comparable positions in the U.S. Attorney's Office for the 
     District of Columbia. It is the intent of these provisions 
     that independent counsels pay reasonable salaries 
     commensurate with an employee's experience and job 
     responsibilities and that only the most senior assistants 
     receive the maximum rate allowable for staff. No independent 
     counsel should pay all or even most staff attorneys at the 
     maximum permissible rate, nor should part-time counsel be 
     paid at the billable hourly rate they receive when privately 
     employed. Congress intends by these provisions to conserve 
     taxpayer dollars, while ensuring staff salaries in an 
     independent counsel's office are comparable to those paid to 
     other federal prosecutors.


             Section 594(d): Justice Department Assistance

     1987 law
       The 1987 law provided that the independent counsel may 
     request assistance from the Department of Justice in carrying 
     out the law, and the Department was required to provide that 
     assistance, including use of Department resources and 
     personnel.
     Senate bill
       The Senate bill requires the independent counsel to request 
     such assistance, and the Department to provide it.
     House amendment
       The House amendment follows the 1987 law.
     Conference agreement
       The conference agreement strikes a compromise between the 
     House and Senate approaches, by clarifying the existing 
     authority of independent counsels, at their option, to ask 
     the Department of Justice to detail to their staffs, on a 
     reimbursable or nonreimbursable basis, prosecutors, 
     administrative personnel, or other persons employed by the 
     Department. Independent counsels have already made frequent 
     use of FBI detailees, who are employees of the Justice 
     Department; it is the intent of this provision to clarify, 
     not alter, the authority for that practice. While the Justice 
     Department is encouraged to support the work of independent 
     counsels by facilitating details, it does retain the 
     authority to decline an independent counsel's request for a 
     specific detailee.
       This provision is intended to allow independent counsels to 
     take advantage of the expertise of Justice Department 
     personnel. Department employees accepting a detail under this 
     law must understand that, during the detail, they owe their 
     allegiance solely to the independent counsel, and it would be 
     a serious breach if they were to violate that allegiance by, 
     for example, providing unauthorized information to the 
     Department or other parties. This obligation must be made 
     clear to the detailee by both the Department and the 
     independent counsel.


            Section 594(f): Compliance with Justice Policies

     1987 law
       The 1987 law required independent counsels to comply with 
     Department of Justice policies on criminal law enforcement 
     ``except where not possible.''
     Senate bill
       The Senate bill requires independent counsel compliance 
     with Department policies on criminal law enforcement ``except 
     to the extent that to do so would be inconsistent with the 
     purposes'' of the independent counsel law. It also requires 
     the independent counsel to consult with the Department on its 
     law enforcement and spending policies ``to the extent 
     possible throughout his or her term of office.''
     House amendment
       The House amendment contains the same provision as the 
     Senate bill, except that it does not require independent 
     counsels to consult with the Department on law enforcement 
     and spending policies ``except where to do so would be 
     inconsistent with the purposes'' of the independent counsel 
     law. This standard is consistent with the rest of the section 
     and signals the need for independent counsels to balance the 
     goal of handling matters in the same way as other federal 
     prosecutors with the goal of retaining appropriate 
     independence. By including this provision, Congress affirms 
     its intent that independent counsels engage in appropriate 
     consultation with the Department of Justice.


     Sections 594(h)(1) and 595(a)(2): Independent Counsel Reports

     1987 law
       The 1987 law required independent counsels to file with the 
     special court semi-annual expense reports under section 
     594(h)(1)(A), and a final report under section 594(h)(1)(B) 
     ``setting forth fully and completely a description of the 
     work of the independent counsel, including the disposition of 
     all cases brought, and the reasons for not prosecuting any 
     matter within the prosecutorial jurisdiction of such 
     independent counsel.'' In addition, independent counsels were 
     permitted under section 595(a)(2) to ``submit to the Congress 
     such statements or reports on the activities of such 
     independent counsel as the independent counsel consider[ed] 
     appropriate.''
     Senate bill
       The Senate bill amends section 595(a)(2) to require 
     independent counsels to report to Congress quarterly on ``all 
     monies expended'' and annually on ``their activities, 
     including a description of the progress of any investigation 
     or prosecution * * * adequate to justify the expenditures'' 
     made. In addition, the Senate bill narrows the scope of the 
     final report required under section 594(h)(1)(B) by removing 
     requirements that it be full and complete and that it explain 
     the reasons for not prosecuting any matter.
     House amendment
       The House amendment adopts the Senate's proposed change to 
     section 595(a)(2) requiring independent counsels to report to 
     Congress annually on their activities, but does not otherwise 
     amend the reporting requirements contained in the 1987 law.
     Conference agreement
       The conference agreement strikes a compromise between the 
     House and Senate approaches.
       First, in response to the desire to increase fiscal 
     controls on independent counsels, the conference agreement 
     replaces the Senate requirement for quarterly expense reports 
     by independent counsels with requirements for increased 
     financial oversight by the General Accounting Office (GAO). 
     The conference agreement requires GAO to conduct a financial 
     review of independent counsel expenditure statements at mid-
     year, a full audit at year-end, and another full audit at 
     termination of each independent counsel's office. Requiring 
     this additional oversight by a third party auditor, rather 
     than requiring additional reports by an independent counsel, 
     is believed to be a more effective fiscal control on 
     expenditures. The conferees also direct independent counsels 
     when preparing their expenditure statements to consult with 
     GAO and to prepare them in a format which will facilitate 
     GAO's financial oversight.
       Second, in response to concerns about the proper scope of 
     the final report, the conference agreement retains the 
     requirement in the 1987 law that these reports include a full 
     and complete account of the independent counsel's activities, 
     but eliminates the requirement that the independent counsel 
     explain the reasons for not prosecuting any matter.
       Requiring a prosecutor to file a final report that may 
     become a public document is unique to the independent counsel 
     process; other federal prosecutors are neither required nor 
     expected to issue such a public report. The final report 
     requirement thus must be understood to be an exception to the 
     norm.
       This exception is justified by the unique environment in 
     which an independent counsel must operate--without direct and 
     ongoing supervision by senior Justice Department officials. 
     It serves as an important check on independent counsel 
     investigative and prosecutorial activities by requiring them 
     to identify and explain their actions.
       Because this reporting requirement is unique in the federal 
     criminal justice system, the conferees recognize the 
     importance of making the objectives and intended limits of 
     the report clear.
       The conference agreement reaffirms the duty of independent 
     counsels to provide a full and complete description of their 
     work. Congress continues to view this requirement as a key 
     measure for insuring accountability. Under this provision, 
     independent counsels are expected to provide a summary of the 
     key steps taken in the investigatory and prosecutorial stages 
     of their work and to explain the basis for their decisions.
       Congress also wants to clarify, however, that independent 
     counsels are not expected to and should not take additional 
     investigative steps, such as additional interviews or 
     document requests, in order to produce a detailed report. No 
     investigation by an independent counsel should be lengthened 
     or deepened simply because of the final report requirement. 
     The report should instead reflect only the work required for 
     a prosecutor to execute his or her normal investigative and 
     prosecutorial responsibilities.
       The conference agreement eliminates the requirement that 
     independent counsels explain, in every instance, their 
     reasons for not prosecuting any matter within their 
     jurisdiction. Other federal prosecutors do not normally 
     provide public explanations of decisions not to indict and, 
     in deviating from this norm, independent counsels must 
     exercise restraint. The power to damage reputations in the 
     final report is significant, and the conferees want to make 
     it clear that the final report requirement is not intended in 
     any way to authorize independent counsels to make public 
     findings or conclusions that violate normal standards of due 
     process, privacy or simple fairness.
       The conferees believe that, in assessing whether an 
     explanation should be provided with respect to a specific 
     unindicted individual, an independent counsel should base the 
     decision on whether it would be in the public interest for 
     such information to be disclosed. The public interest 
     encompasses a wide range of concerns which need to be 
     carefully balanced, including understanding the basis for the 
     independent counsel's decision not to indict; taking into 
     account the extent to which the individual was central or 
     peripheral to the independent counsel's jurisdictional 
     mandate; exonerating the innocent; and protecting individual 
     rights to due process, privacy and fairness. For example, it 
     may be in the public interest to report that the evidence did 
     not sustain the allegations that gave rise to the 
     investigation or that the evidence demonstrates an 
     individual's innocence.
       With regard to an individual whose conduct was only 
     tangential to that of the person for whom the independent 
     counsel was appointed, an independent counsel should normally 
     refrain from commenting on the reason for not indicting that 
     person unless it is to affirm a lack of evidence of guilt. On 
     the other hand, the conferees consider to be crucial a 
     discussion of the conduct of the person for whom the 
     independent counsel was appointed to office. This discussion 
     should focus on the facts and evidence and avoid use of 
     conclusory statements in the absence of an indictment. 
     However, in the rare event that an indictment is forestalled 
     because of an event beyond the control of the independent 
     counsel, public accountability may well require such 
     independent counsel to express a professional opinion on 
     whether the grounds for an indictment had been present.
       The same concerns apply to the new requirement in both 
     House and Senate bills for independent counsels to file 
     annual reports on their activities. The conferees caution 
     independent counsels to exercise the same degree of restraint 
     and responsibility in issuing those interim reports.


             Section 594(h)(2): Disclosure of Final Report

     1987 law
       The 1987 law authorized the special court to release a 
     final report filed by an independent counsel after making 
     provisions to ensure that the rights of any individual named 
     in the report and any pending prosecution are protected.
     Senate bill
       The Senate bill follows the 1987 law.
     House amendment
       The House amendment follows the 1987 law, but adds language 
     encouraging the court to release the report and associated 
     material if the court determines it would be in the public 
     interest and would be consistent with maximizing public 
     disclosure, ensuring a full explanation of the independent 
     counsel's activities and decisionmaking, and facilitating the 
     release of information which the independent counsel had 
     determined should be disclosed.
     Conference agreement
       The conference agreement follows the Senate bill. The 
     conferees agree that the standards in the 1987 law on 
     releasing a final report to the public are not overly 
     restrictive, as evidenced by the special court's decision to 
     release the final report in the Iran-Contra matter despite 
     numerous motions by persons named in the report to repress 
     all or portions of it. For this reason, the conferees have 
     determined that additional statutory language encouraging 
     disclosure is unnecessary.


               Section 594(1)(2): Administrative Support

     1987 law
       The 1987 law did not address the issue of administrative 
     support for independent counsels.
     Senate bill
       The Senate bill states that the Administrative Office of 
     the U.S. Courts ``Shall provide administrative support and 
     guidance to each independent counsel.'' It also relieves the 
     Administrative Office of any obligation to disclose 
     information about an independent counsel's operations without 
     the express authorization of that independent counsel. The 
     bill also requires the independent counsel to authorize such 
     disclosure by the Administrative Office unless to do so 
     ``would interfere with a pending investigation or 
     prosecution.''
     House amendment
       The House amendment contains a similar provision as the 
     Senate bill, but is not specific as to when an independent 
     counsel should authorize disclosures by the Administrative 
     Office.
     Conference agreement
       The conference agreement follows the House amendment. The 
     purpose of this provision on administrative matters is 
     threefold. First, it clarifies the responsibility of the 
     Administrative Office to provide administrative support for 
     independent counsel operations. The Administrative Office has 
     been providing this support informally for many years, but 
     the statutory basis for its actions has not been explicit.
       Second, the provision makes it clear that the 
     Administrative Office should provide independent counsels 
     with not only the administrative services they need, but also 
     guidance on complying with federal personnel, administrative 
     and procurement requirements. This guidance is sorely needed 
     by offices that have a limited duration and little 
     familiarity with federal procedures. To provide this guidance 
     and develop an institutional memory for how matters have been 
     handled by past independent counsels, the conferees strongly 
     urge the Administrative Office to develop written material to 
     assist new independent counsels in establishing their 
     offices, hiring staff and conducting their work.
       By using the words ``support and guidance'' to describe the 
     Administrative Office's functions, Congress intends for the 
     Administrative Office to provide independent counsels with 
     informed advice, but not to exercise decisionmaking authority 
     for specific actions. Actions taken by an independent 
     counsel's office remain the responsibility of the independent 
     counsel in charge. At the same time, the support and guidance 
     provided by the Administrative Office can serve independent 
     counsels unfamiliar with federal requirements by providing 
     them with the information needed for informed decisions.
       The third purpose of this provision is to shield the 
     Administrative Office from conflicts that may arise when 
     Congress, the press or others seek, information about 
     independent counsel activities. In the past, some pressed the 
     Administrative Office to provide information which an 
     independent counsel had declined to provide. This provision 
     makes it clear that an independent counsel's decision not to 
     release information may not be circumvented by directing 
     information requests to the Administrative Office. Moreover, 
     Senate language directing independent counsels to authorize 
     the Administrative Office to disclose information ``unless it 
     would interfere with a pending investigation or prosecution'' 
     is not included, because this language could encourage 
     information requests to be directed to the Administrative 
     Office instead of directly to an independent counsel.
       It is the intent of Congress that independent counsels, not 
     the Administrative Office, have sole responsibility for 
     responding to information requests. When confronted with such 
     requests, independent counsels have the same disclosure 
     obligations that apply to the Department of Justice, except 
     where such disclosure would be inconsistent with the purposes 
     of this Act. The independent counsel is also subject to the 
     disclosure requirements of the Freedom of Information Act, 
     and Congress urges all independent counsels to be responsive 
     and forthcoming to such requests for information.


                   section 593(h): good cause removal

     1987 law
       The 1987 law states that an independent counsel may be 
     removed from office by the Attorney General ``for good 
     cause.''
     Senate bill
       The Senate bill follows the 1987 law, but adds a sentence 
     indicating that good cause for removal would include an 
     independent counsel's failure to follow written Justice 
     Department guidelines and violation of applicable canons of 
     ethics.
     House amendment
       The House amendment follows the 1987 law.
     Conference agreement
       The conference agreement follows the House amendment. By 
     eliminating the Senate language, the conferees do not mean to 
     suggest that a refusal to follow important Department 
     guidelines or that a serious violation of ethics could not be 
     grounds for removal; they--like many other circumstanes--do 
     provide potential grounds for removing an independent counsel 
     from office.


                 section 596(b): periodic reappointment

     1987 law
       The 1987 law authorized the special court, on its own 
     motion or at the request of the Attorney General, to 
     terminate an independent counsel's office if that independent 
     counsel's work had ``been completed or so substantially 
     completed that it would be appropriate for the Department of 
     Justice to complete'' any remaining tasks.
     Senate bill
       The Senate bill retains the 1987 provision, but adds a 
     requirement that the special court determine whether 
     termination is warranted under the provision ``no later than 
     2 years after the appointment of an independent counsel or 
     the reported expenditures by such independent counsel have 
     reached $2 million, whichever occurs first, and at the end of 
     each succeeding 1-year period.''
     House amendment
       The House amendment retains the 1987 provision, but adds a 
     requirement that the special court determine whether 
     termination is warranted under the provision ``no later than 
     3 years after the appointment of an independent counsel and 
     at the end of each succeeding 3-year period.''
     Conference agreement
       The conference agreement strikes a compromise between the 
     House and Senate provisions, requiring the special court to 
     determine whether termination is warranted under the 
     provision no later than 2 years after appointment of an 
     independent counsel, at the end of the succeeding 2-year 
     period, and then at the end of each succeeding 1-year period.
       The purpose of this provision is to ensure that the special 
     court inquiries on a periodic basis, with respect to each 
     independent counsel, as to whether that independent counsel's 
     work is complete. It is not intended to establish deadlines 
     for the completion of this work. Nor is it intended to 
     provide the special court with new termination authority that 
     did not exist at the time the law was reviewed by the Supreme 
     Court in Morrison v. Olson. that case formulated a narrow 
     construction of the special court's termination authority, 
     and Congress intends for this new provision to be construed 
     within the bounds of that narrow construction. The sole 
     purpose of the new provision is to ensure that the special 
     court exercises its Constitutionally-defined authority on a 
     periodic basis.
       The special court is expected to make the required 
     determination within the statutorily specified period. If it 
     should fail to do so, however, the relevant independent 
     counsel would not be affected. Rather, the court would be 
     obligated to make the needed determination as soon as 
     possible. Until then, the relevant independent counsel would 
     be authorized to continue in office.


                            Other Provisions

       With minor changes, the Senate recedes to the House on 
     section 3(a)'s provision creating a new section 594(l)(1)(A) 
     (certifying official); section 3(e)'s provision creating a 
     new section 594(f)(2) (national security procedures); and 
     section 5's amendment of section 496(a)(1) (removal for 
     physical or mental disability). The House recedes to the 
     Senate on section 2's provision relating to the five-year 
     reauthorization; section 3(a)'s provision creating a new 
     section 594(1)(3) (office space); and section 3(j)'s 
     amendment of section 591(d) (30-day period to determine need 
     for preliminary investigation).


                    Report on White House Personnel

     Senate bill
       The Senate bill contains a non-germane provision requiring 
     the White House to file a semi-annual report identifying the 
     names and salaries of persons employed or detailed to the 
     White House.
     House amendment
       The House amendment has no comparable provision.
     Conference agreement
       The conference agreement follows the Senate bill with 
     simplifying changes and an exception for disclosures which 
     would not be ``in the interest of national defense or foreign 
     policy.'' The conferees intend that this exception be 
     construed narrowly, and that it be applied in a manner 
     similar to section 552(b)(1)(A) of the Freedom of Information 
     Act, which permits the withholding of information 
     ``specifically authorized under criteria established by an 
     Executive order to be kept secret in the interest of national 
     defense or foreign policy.'' The conference agreement 
     requires the report to identify the total number of 
     individuals for whom information is excluded, and requires 
     that access to this excluded information be provided to the 
     Senate Governmental Affairs Committee or House Government 
     Operations Committee, upon the Committee's request. The 
     conferees intend that, upon receiving such a request, prompt 
     access to the excluded information be provided to the person 
     or persons (including Committee staff) designated by the 
     requesting Committee to review such information.


                effective date and transition provisions

     Senate bill
       The Senate bill is effective on the date of enactment, 
     except for the provisions limiting staff salaries which are 
     applied only to staff hired after the date of enactment of 
     the law. The bill does not address the status of the 1987 
     law.
     House amendment
       The House amendment is effective on the date of enactment. 
     In the section reauthorizing the law, the amendment states 
     that the 1987 law must be considered as if it had not 
     expired.
     Conference agreement
       Both the House and Senate intend to reauthorize the 
     independent counsel law for an additional five years. In 
     December 1992, the 1987 independent counsel law ceased to be 
     effective except with respect to independent counsel 
     proceedings then pending. Because two of the three 
     independent counsel proceedings then in existence remain 
     ongoing, the 1987 law has remained on the federal statute 
     books and in effect for those proceedings.
       The conferees agree that because this law has remained on 
     the books and in effect for ongoing independent counsel 
     proceedings, and because it has never been repealed, it can 
     be amended to reauthorize the law for all purposes. 
     Accordingly, section 2 of the conference agreement 
     reauthorizes the law, as amended, for an additional five 
     years, and section 7(a) applies the amended law to existing 
     independent counsel proceedings, subject to certain 
     transition provisions.
       The transition provisions in section 7 primarily resolve 
     how to apply specific provisions in the amended law to 
     ongoing independent counsel cases.
       Section 7(b) states that existing independent counsels 
     shall have 30 days after the date of enactment to appoint the 
     certifying official required by the new section 
     594(l)(1)(A)(iii).
       Section 7(c) states that, in applying to existing 
     independent counsels the new requirement in section 594(l)(3) 
     to use federal office space unless other arrangements would 
     cost less, the Administrator of the General Services 
     Administration is directed to take into account moving, legal 
     and other costs that may arise if an independent counsel is 
     required to move to new offices.
       Section 7(d) states that the new restriction on 
     reimbursement of certain travel expenses added by section 
     594(b)(3) shall apply to existing independent counsel 
     operations by restricting expenses incurred one year after 
     the enactment of this Act. The new restriction on travel 
     expenses is not intended to be applied retroactively.
       Section 7(e) states that the compensation restrictions 
     added by section 594(c) shall not be applied to cause a 
     reduction in the compensation paid to any employee appointed 
     before the date of enactment of this Act.
       Section 7(f) states that the new requirements added by 
     section 596(b)(2) shall be applied to existing independent 
     counsel operations to require, for each independent counsel, 
     a determination by the court one year after the date of 
     enactment of this Act and thereafter at the end of each 
     succeeding 1-year period.
       Section 7(g) states that, in applying new reporting 
     requirements to existing independent counsel operations, 
     these provisions should be interpreted so as not to require 
     any retroactive reports.
       Section 7(h) addresses a different concern, involving 
     pending independent counsel proceedings which are regulatory 
     rather than statutory in nature. It creates a transition 
     provision for ``any individual serving, at the time of 
     enactment of this Act, as a regulatory independent counsel 
     under Parts 600 and 603 of title 28 of the Code of Federal 
     Regulations.''
       The 1987 independent counsel law and this reauthorization 
     prohibit the special court from appointing as an independent 
     counsel ``any person who holds any office of profit or trust 
     under the United States.'' 28 U.S.C. 593(b)(2). That 
     provision ensures that the effectiveness of individuals who 
     are chosen to serve as independent counsel will not be 
     impaired as a result of divided loyalty or perceived 
     conflicts of interest.
       While the conferees believe that this provision should be 
     continued, the conferees also believe that special 
     circumstances exist with regard to the regulatory independent 
     counsel who was appointed in In re Madison Guaranty Savings 
     and Loan Association. That counsel was appointed from outside 
     the Federal Government by the Attorney General, pursuant to 
     28 C.F.R. Part 600 et seq., during the period in which the 
     Attorney General lacked the authority to seek appointment by 
     the court of a statutory independent counsel for new matters. 
     Given those circumstances, the conferees believe that it is 
     appropriate for the special court to have the option to 
     appoint the same person as the statutory independent counsel, 
     should the statute be triggered with regard to the 
     allegations that such regulatory independent counsel is 
     currently investigating.
       The conferees express no opinion on whether the statute 
     will or should be triggered. That decision rests solely with 
     the Attorney General. Nor do the conferees express any 
     opinion on whether, if triggered, the special court will or 
     should appoint the current regulatory independent counsel as 
     the statutory independent counsel. That decision rests solely 
     with the special court.
       The conference agreement requires any regulatory 
     independent counsel, if appointed by the special court as a 
     statutory independent counsel, to abide by the provisions of 
     the independent counsel law, as amended by this Act, to the 
     same extent as statutory independent counsels appointed prior 
     to the enactment of this Act. The only exception is that 
     section 7(f)'s accelerated schedule of court reviews of 
     existing matters to determine whether their termination is 
     appropriate would not apply; instead, the provisions of 
     section 596(b)(2), as amended by section 3(h) of this Act, 
     would apply.
       Finally, section 7(i) states that the new reporting 
     requirements for White House personnel added by section 6 of 
     the Act shall take effect on January 1, 1995.
       And the House agree to the same.
       That the Senate recede to the House's amendment to the 
     title of the bill, so that it will be the ``Independent 
     Counsel Reauthorization Act of 1994.''
     Jack Brooks,
     John Bryant,
     Dan Glickman,
     Barney Frank,
                                Managers on the Part of the House.

     John Glenn,
     Carl Levin,
     David Pryor,
     Bill Cohen,
     Ted Stevens,
     Managers on the Part of the Senate.

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