[Congressional Record Volume 140, Number 67 (Wednesday, May 25, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: May 25, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
INDEPENDENT COUNSEL REAUTHORIZATION ACT OF 1993--CONFERENCE REPORT
The PRESIDING OFFICER (Mrs. Murray). Under the previous order, the
Senate will now proceed to the consideration of the conference report
on S. 24, which the clerk will report.
The legislative clerk read as follows:
The committee on 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, having met, after full and free conference, have
agreed to recommend and do recommend to their respective
Houses this report, signed by a majority of the conferees.
The PRESIDING OFFICER. Without objection, the Senate will proceed to
the consideration of the conference report.
(The conference report is printed in the House proceedings of the
Record of May 19, 1994.)
Mr. LEVIN. Madam President, I ask unanimous consent that there be 30
minutes for debate on the conference report, with the time equally
divided and controlled between myself and Senator Cohen; that when the
time is used or yielded back, without intervening action, the
conference report be agreed to and the motion to reconsider laid upon
the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
Who yields time?
Mr. LEVIN. I yield myself so much time as I may need, Madam
President.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, I am pleased to present to the Senate the
conference report on S. 24, to put the independent counsel law back on
the books for the next 5 years.
The independent counsel law is a primary legacy of Watergate, a
scandal which, among other lessons, taught the American people that no
administration should be put in the position of investigating its own
top officials. The independent counsel law provides the alternative.
When a high Government official is accused of criminal wrongdoing,
instead of the administration handling the investigation, it is
conducted by someone from outside the Government chosen by a special
panel of three judges.
The law authorizing these court-appointed independent counsels has
served this country well. The Supreme Court held, by a vote of 7 to 1,
that the law comports with the Constitution and its system of checks
and balances. Thirteen independent counsels have taken office under
this law and have carried out their duties carefully and responsibly.
Most importantly, the law has gained the public's trust. While some
independent counsels have been criticized for an excess of zeal, none
has been accused of a whitewash or letting public officials off
lightly. When independent counsels have decided not to indict someone,
those decisions have been accepted by the public as based upon fact and
analysis--not politics.
That is an important accomplishment in this day and age, when public
cynicism is high. Through the independent counsel law, our country has
found a way to resolve criminal accusations against high officials in a
way which the public trusts as fair and conclusive.
Today, we have the opportunity to show our support for the
independent counsel system by supporting the conference report that
will renew the law until 1999.
This is a bipartisan bill, developed jointly with my good friend,
Senator Cohen who, as usual, has displayed leadership and tenacity in
getting this bill to this point. The bill is also supported by the
President and by the Attorney General. If approved by Congress, this
bill will be signed into law.
This bill is not very different from the one that the Senate approved
in November 1993, by a vote of 76 to 21, or from the one approved by
the House in February 1994, by a vote of 356 to 56. The two bills were
similar in most respects to begin with, and through compromise we have
been able to resolve the remaining differences.
I would like to take a moment here to compliment our partners in the
House, chairman of the House Judiciary Committee Jack Brooks and
Congressmen John Bryant and Barney Frank, among others, for their
courtesy and hard work in resolving our differences and producing an
excellent bill we can all support.
The most prominent feature of the bill is a host of new fiscal and
administrative controls to ensure that independent counsel operate with
appropriate attention to cost and in as similar a manner as possible to
other Federal prosecutors. They include measures limiting independent
counsel staff, travel and office expenses, directing independent
counsels to comply with Justice Department policies on spending, and
subjecting independent counsel expenditures to semiannual and final
audits by the General Accounting Office.
Another new feature requires periodic reviews by the special court
that appoints independent counsels to determine whether an independent
counsel office should be terminated because its work is substantially
complete. These reviews are required 2 years after an independent
counsel takes office, 2 years after that, and annually thereafter. The
timing of these reviews is a compromise between the Senate bill which
required them 2 years after an independent counsel took office or
independent counsel expenditures reached $2 million, whichever occurred
first, and annually thereafter; and the House bill which required the
reviews to take place every 3 years. I think we came up with a
reasonable compromise, that is both workable and meaningful.
The conference report also addresses the issue of the nature and
content of the final report that independent counsels are required to
file at the close of their activities. The Senate bill was amended on
the floor to eliminate long-standing requirements that this final
report, first, be full and complete, and, second, explain in every
instance the reasons for not indicting any person. The House bill
retained both of these requirements. The conference report resolves
this difference by keeping the first requirement for a full and
complete report, but dropping the second.
By eliminating the requirement to explain every decision not to
indict, the conference report does not prohibit such explanations, but
instead gives each independent counsel the discretion to provide such
an explanation when he or she determines it would be in the public
interest. In the joint statement of managers, we provide a number of
factors that independent counsels should consider in deciding whether
to explain a decision not to indict, including whether the individual
was central to the independent counsel's jurisdictional mandate,
whether the explanation would exonerate an innocent individual, and
whether an explanation would violate normal standards of due process,
privacy or simply fairness.
If an independent counsel determines that an explanation of a
decision not to indict should be provided, the conference report
cautions against conclusory statements that an individual is guilty of
criminal misconduct and counsels instead a discussion focused on the
facts and evidence obtained during the investigation.
A final set of issues has to do with how the amendments to the 1987
independent counsel law should apply to the two sitting independent
counsels, Judge Arlin Adams in the HUD matter and Joseph DiGenova in
the State Department passport matter, and to the regulatory independent
counsel, Robert B. Fiske, in the Madison Guaranty matter. Mr. Fiske was
appointed during the period of time in which the independent counsel
law could not be applied to new matters.
With respect to the sitting statutory independent counsels, the
conference report applies the amendments to them with only a few
ennumerated exceptions to avoid needless expense or disruption. For
example, the conference report does not require retroactive reports,
retroactive salary reductions, or inappropriate moving expenses. In
addition, because it was unclear when the first of the periodic reviews
by the special court would be required, the conference report specifies
that, for sitting independent counsels, the first review should take
place 1 year after the date of enactment of the law and annually
thereafter.
With respect to Mr. Fiske's investigation, the conference report
gives the special court the option, should the Attorney General seek
appointment of an independent counsel in the Madison Guaranty Savings
and Loan matter, to name Mr. Fiske to that position. The independent
counsel law prohibits the special court from appointing as an
independent counsel an employee of the Federal Government. Mr. Fiske,
as a regulatory independent counsel selected by the Justice Department,
is a Federal employee and thus would be barred from serving as the
statutory independent counsel should the statute be triggered, absent
specific statutory authorization.
Practically speaking this means that should the Attorney General--
once the independent counsel law is reauthorized--determine that first,
the statute is triggered with respect to the Madison Guaranty Savings
and Loan investigation, that is, there is specific information from a
credible source that a Federal crime may have been committed by a
covered official, and second, after a preliminary investigation of no
more than 90 days that further investigation is warranted, she must,
under the law, ask the special court to appoint an independent counsel.
Once she makes that request (and if the subject of the investigation is
one of the 50 or so mandatorily covered officials she has no discretion
but to make such request), the special court must then appoint an
independent counsel.
If those events were to take place and the conference report did not
provide otherwise, the special court could not consider the appointment
of Mr. Fiske for the position of statutory independent counsel. That
would mean that a completely new counsel would have to be named to head
the criminal investigation and that the investigatory work of some 5
months would have to be handed over to a completely new person. This
raises the possibility of delay and increased cost to the taxpayers and
to the persons who have been involved in the investigation, which the
special court should have at least the opportunity to consider.
That is why, Mr. President, the conferees agreed that it would be in
the public interest to give the special court the option--should the
law be triggered--to appoint Mr. Fiske as the statutory independent
counsel and continue with the investigation he has already started. The
Attorney General has advised us that she supports offering this option.
Let me emphasize, Mr. President, that this provision in no way
directs the special court to appoint Mr. Fiske. We remain absolutely
neutral on that subject. It is totally up to the special court whom
they want to select as independent counsel in the Madison Guaranty or
any other matter. This provision only gives the special court the
option to select Mr. Fiske should the special court believe it is in
the public interest to do so.
Let me also say that this grant of authority is needed because of the
anomalous situation in which we find ourselves with respect to Mr.
Fiske. He is serving at this time as a regulatory independent counsel
because the independent counsel statute was allowed to lapse despite a
great deal of effort on the part of Senator Cohen and myself to prevent
that, I might add. But it did lapse, and during that time the Madison
Guaranty Savings and Loan matter developed. The Attorney General
attempted to proceed with that investigation within the normal
procedures of the Justice Department, but pressure to appoint an
attorney from outside the Department grew to such a point that the
Attorney General appointed Mr. Fiske under the Department regulation
establishing regulatory independent counsels.
This regulation was issued by the Justice Department at a time when
the independent counsel law was being challenged in the courts as to
its constitutionality. The regulation gave the independent counsels
then in office a second source of authority should the independent
counsel law be struck down. Of course, that didn't happen. The Supreme
Court upheld the law. That ruling eliminated the need for the
regulation, but it was never removed from the books.
I hope, and I have made this request to the Attorney General, that
once this statute is reauthorized the Attorney General will in fact
rescind that regulation so there will be no opportunity for appointment
of independent counsel in any form other than that permitted by the
statute. This is important, because the statute imposes numerous
important restrictions to ensure financial and prosecutorial
accountability which the regulation does not have.
I yield the floor and thank the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. COHEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Maine.
Mr. COHEN. I will take just a few moments. First of all, I commend my
friend from Michigan, Senator Levin, who has over the years been in the
forefront of trying to not only deal with issues of substance but also
those of appearance, which are often of equal importance, particularly
when it comes to the matter that we are discussing now.
We are familiar with the expression that not only must justice be
done; it must appear to have been done. And that is particularly true
in the case of an administration called upon to investigate the highest
officials within that administration.
As Senator Levin has pointed out, it is not a question really as to
whether or not an administration can in fact properly and meritoriously
carry out its obligations under the law; they can do that; they have
done that. The question then becomes, what if the appearance is that
they have failed to do so?
As a former prosecutor, let me explain that the easiest thing to do
in the criminal justice system is to secure an indictment. All one has
to do is to go before a grand jury and, with rare exception I might
note, any prosecutor who is skilled in the techniques that can be
employed with the weight of the Government witnesses behind him or her,
and the fact that the potential defendant has no opportunity to either
appear or to defend his or her cause, ordinarily can secure an
indictment quite easily.
The real challenge is when not to indict on a close case; when a
prosecutor has to make a judgment as to when not to bring the force of
government machinery down upon that particular individual. Those are
tougher cases.
When an administration is called upon to investigate allegations of
criminal wrongdoing by high-ranking executive department officials and
the Justice Department is called upon to conduct those investigations,
that is when the appearance issue becomes the most critical.
In these cases, we decided in 1978 when the first Independent counsel
act was adopted that it was important to remove any skepticism as to
whether justice was being done by an administration investigating
itself. Over the years the law has worked, I believe, relatively well.
The purpose of the law was to make sure that anyone serving at the
highest levels of Government not be treated in any superior fashion to
the average citizen, nor did we want to create a situation where they
were treated differently by being treated more harshly.
As the members of the Senate are well aware, the level of cynicism
and disillusionment of the American public about Government and the
integrity of public officials has reached new heights. Opponents of the
law may argue that the independent counsel law has contributed to the
public's cynicism and the low esteem in which government officials are
held by undermining the public's faith in government generally and the
Justice Department specifically. I disagree. The independent counsel
law is not the virus that has invaded the body politic but rather is
part of the cure.
The American public recognizes that we live in an imperfect world and
that public officials, like themselves, are subject to subtle
influences and pressures that affect their judgments and decisions. The
public is also concerned, too often with justification, about the undue
influence on government of the rich, the powerful and the well-
connected. By providing for a judicially appointed independent counsel
to handle investigations and prosecutions of top-level executive branch
officials, the statute helps to assure the public that criminal
wrongdoing by such officials will not be buried or tolerated, and that
top-level officials will not be treated as if they are above the law.
We have not professed that the statutory measure designed to meet the
public's need is etched in marble or is immutable. Therefore, Senator
Levin and I have sought ways to refine the law so that it operates
fairly and effectively. Congress has attempted to do just that during
each of the previous reauthorizations of the statute. In 1982, for
example, Congress made changes in the law designed to ensure that
Government officials would not be prosecuted in circumstances where
average citizens would not. In 1987, provisions were added to the law
to increase controls on independent counsels.
The conference agreement addresses problems which have arisen with
the law since the last reauthorization. Numerous provisions have been
included in the bill to address the legitimate concerns raised with
regard to the law's operation. Most recently, significant concerns have
been raised over the monetary costs of the law, in light of the
unanticipated scope and cost of independent counsel investigations in
the past several years. To address the cost issue, the conference
agreement includes several provisions to tighten fiscal controls.
Critics also decry the lack of accountability of independent counsel.
However, as one of the witnesses at the hearing on the reauthorization
bill testified, ``Making the investigator independent of the executive
does not make the office unaccountable.'' The old law provides for
accountability in a number of ways. Only the Attorney General can
request the appointment of an independent counsel and the Attorney
General has significant influence in defining the independent counsel's
jurisdiction. Independent counsel must comply with Justice Department
policies. They may be removed from office by the Attorney General for
good cause. They are accountable to the appointing court, which defines
their jurisdiction, and, like other prosecutors, they are subject to
the authority of trial and appellate judges.
The conference agreement adds to the existing measures of
accountability by requiring the special court to periodically determine
whether an independent counsel office should be terminated because its
work is substantially completed.
To accommodate those who believe that the old law was inadequate in
its coverage of Members of Congress, the conference agreement gives the
Attorney General the authority to seek the appointment of an
independent counsel in any case involving allegations of criminal
wrongdoing by Members of Congress.
While Members are already covered by the law's so-called catch all
provision, the new provision would not require a finding of a conflict
of interest before it can be used. Therefore, the Attorney General
could choose to use an independent counsel in every case involving a
Member of Congress, effectively creating mandatory coverage, or could
confine its use to situations where a conflict exists as under current
law. The discretionary nature of the provision would obviate any
constitutional concerns raised by an absolute bar on Justice Department
investigations of Members of Congress.
There continues to be a compelling need for an independent process to
investigate and prosecute allegations of criminal wrongdoing by high-
level government officials. Justice Holmes once said that ``The life of
the law has not been logic: it has been experience.'' In this case,
both logic and experience are on the side of reauthorizing the
independent counsel law.
Finally, I want to commend the Senator from Michigan for his hard
work and commitment to seeing the independent counsel statute
reauthorized. We have worked together on a bipartisan basis on this
issue for many years and through several reauthorizations. I also want
to commend two members of this Oversight Subcommittee staff--Linda
Gustitus and Elise Bean--who have worked very hard on this legislation.
Mr. LEVIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, I yield myself 10 additional minutes for
a colloquy at this point between myself and Senator Cohen.
Madam President, there has been a suggestion that the motive behind
giving the special court the option to appoint Mr. Fiske as independent
counsel, should the statute be triggered, is to allow the subjects of
the Madison Guaranty investigation to be eligible for payment of their
attorney fees. Nothing could be farther from the truth. There is simply
no connection between the two issues.
Who the special court appoints as independent counsel, if they do
decide to appoint independent counsel, after a petition has been filed
by the Attorney General, has nothing to do with the right of an
unindicted subject of an independent counsel investigation to get
attorney fees.
If the Attorney General seeks the appointment of an independent
counsel in the Madison Guaranty matter, whether the special court
chooses Mr. Fiske or anyone else to be that independent counsel makes
absolutely no difference as to the right of a person to get attorney
fees.
The identity of the independent counsel is immaterial to the right of
an unindicted subject of an independent counsel investigation to get
attorney fees. The criteria of the statute determines eligibility for
attorney fees, not the identity of the independent counsel.
In fact, if any relationship exists between who is appointed
independent counsel, if one is appointed in the Madison Guaranty
matter, and whether attorney fees will be available, it could be argued
attorney fees are more likely to occur if the special court were not
given the option to appoint Mr. Fiske. That is because the standard for
obtaining attorney fees is whether the fees ``would not have been
incurred but for the requirements of'' the independent counsel law.
Appointment of a new person who would have to start from scratch and
perhaps repeat Mr. Fiske's work would more likely cause legal fees that
would not otherwise have been incurred ``but for'' the new independent
counsel law.
Mr. COHEN. Madam President, will the Senator from Michigan yield for
a question?
Mr. LEVIN. I am happy to yield for that purpose.
Mr. COHEN. Is it the Senator's understanding, then, as chairman of
the subcommittee responsible for shepherding this bill through the
Senate and as floor manager of this legislation that the provision
allowing the court to appoint Mr. Fiske as independent counsel under
the statute, should the statute be triggered in the Madison Guaranty
case, would not have any effect on the right of any subject of that
investigation to obtain attorney fees?
Mr. LEVIN. The Senator is absolutely correct.
Mr. COHEN. Will the Senator from Michigan also be willing to comment
on what the conference report says, if anything, with respect to the
amount of attorney fees any subject of an independent counsel
investigation can obtain?
Mr. LEVIN. Yes. As the Senator, of course, knows, the attorney fee
provision in the independent counsel law is unique. There is no other
instance in Federal law in which we allow the subjects of a criminal
investigation to get their attorney fees reimbursed with taxpayer
dollars. Now why is that? That is because Congress has long recognized
that the independent counsel law is highly unusual and places those
persons who fall under its coverage in a unique situation. Although the
objective of the statute is to treat high level Federal officials no
better and no worse than any other member of the public when it comes
to criminal investigations, in fact there are situations in which such
investigations are more intense, more thorough, take longer, and can
pursue more issues and individuals than a normal criminal investigation
would. Moreover, the statute requires filing of a final report, and we
have learned that preparation of such reports can involve
investigations not normally done in the usual criminal case. Responding
to such investigations can be expensive, and to the extent the cost is
solely because the investigation is being conducted by a statutory
independent counsel and under the auspices of that statute, it is only
fair that the public pay for a reasonable portion of that cost.
The restriction we put on taxpayer reimbursement is that only persons
who are actual subjects of an independent counsel investigation and who
have not been indicted by the independent counsel can apply for
reimbursement. The statutory language which sets out the standard for
the award of attorney fees, section 593(f), is as follows:
Upon the request of an individual who is the subject of an
investigation conducted by an independent counsel pursuant to
this chapter, the division of the court may, if no indictment
is brought against such individual pursuant to that
investigation, award reimbursement for those reasonable
attorneys' fees incurred by that individual during that
investigation which would not have been incurred but for the
requirements of this chapter.
As the conference report states, we have always cautioned the special
court to award attorney fees in the most narrow of circumstances, and
the conference report expresses concern that the special court has of
late been overly generous--beyond the intended scope of the statute.
Attorney General Edwin Meese was allowed by the special court to be
reimbursed up to $460,000 in 1990 for attorney fees, and former
Secretary of State George Shultz was allowed reimbursement of $280,000
at the rate of $370 an hour. The conferees believe that hourly rate is
too high for purposes of what the Federal taxpayer should be required
to pay and we have discussed that at some length in the conference
report. So to answer the Senator from Maine the conference agreement is
more restrictive than current law with respect to the amount of
attorney fees that can be awarded under the statute.
Mr. COHEN. I thank the Senator from Michigan.
Would the Senator yield further?
Mr. LEVIN. I would be happy to yield.
Mr. COHEN. As the Senator from Michigan has already explained, the
provision allowing the court to appoint Mr. Fiske as an independent
counsel under the statute would have no effect on anyone's eligibility
to obtain attorney fees. Whom the court appoints as independent counsel
is totally irrelevant to whether or not a subject of the independent
counsel investigation is eligible under the law for attorney fees.
Mr. Fiske, as a regulatory independent counsel who was appointed by
the Attorney General and who operates under her authority, is an arm of
the Justice Department. Whether the Madison Guaranty case is being
investigated by a regulatory independent counsel or by career Justice
Department employees is of no import with respect to an individual's
eligibility for attorney fees under the independent counsel statute. In
other words, a regulatory independent counsel and the Justice
Department are one and the same for purposes of the statute's ``but
for'' standard for the award of attorney fees.
I also note that, in my judgment, the legal fees that have been or
will be incurred by President Clinton or others as a result of Mr.
Fiske's current investigation would not be reimbursable under the
independent counsel statute. Moreover, should a statutory independent
counsel be appointed to investigate matters being examined by Mr.
Fiske, the legal fees of a target of that investigation would not be
reimbursable to the extent that they would otherwise have been incurred
because of regulatory independent counsel Fiske's investigation or any
other investigation.
Mr. LEVIN. Madam President, as the Senator from Maine reiterated, who
serves as independent counsel under the statute is irrelevant to the
issue of eligibility for attorney fees. Should the independent counsel
statute be triggered in the Madison Guaranty case and an independent
counsel appointed, there very well may be situations in which certain
individuals who are unindicted subjects of that investigation may be
eligible for attorney fees under the terms of the independent counsel
law. We cannot predict whether or not attorney fees will be awarded in
a particular case. That is for the special court to determine using the
``but for'' standard in the law.
Madam President, how much time do I have left?
The PRESIDING OFFICER. The Senator from Michigan controls 1 minute 40
seconds.
Mr. COHEN. If the Senator will yield, how much time is remaining on
our side?
The PRESIDING OFFICER. There are 8 minutes 58 seconds.
Mr. COHEN. Let me take a moment to explain why we have taken the
pains to go through this colloquy. We have a Federal judge who has been
nominated to serve as a Justice of the Supreme Court. One of the
questions I asked him when I met with him recently was to what extent
would he look at congressional intent in helping to define exactly the
scope and meaning of the legislation we pass. As you may know, there is
considerable disagreement on the Court about what weight, if any,
congressional intent plays in the Court's deliberations. Some dismiss
congressional intent, for all practical purposes.
Recently, a case came down in which the Supreme Court dismissed a
colloquy entered into between certain Members of the Senate dealing
with an entirely different piece of legislation. The Court said it is
simply the letter of the statute which is binding, and the colloquy is
irrelevant to our interpretation of that statute.
I wanted to take the time for us to have this colloquy and to
verbalize it for the benefit of our colleagues, because many times
colloquys are inserted into the Record and Members are unaware of
exactly what was said until after the legislation is in fact adopted.
In this particular case, questions have been raised about the intent
of the White House in supporting the Independent Counsel Act. Let me
say, for the Record, that President Clinton and Attorney General Janet
Reno have supported the legislation from the very beginning. Long
before questions about Whitewater ever surfaced, they were strong
supporters of the legislation. Their motives in endorsing the
legislation, I think, spring from a belief that it is important for the
appearance of justice being done.
Second, there was concern being voiced by some that perhaps we are
too eager to pass this legislation. After all, we have Mr. Fiske, who
appears to be doing a most credible job, and why in the world do we
need this bill now? And is this not a back door way of trying to
reimburse the President for his legal fees?
Once again, what we are trying to explain is that this act in and of
itself stands alone. It has nothing to do with Mr. Fiske. Should the
court appoint Mr. Fiske to continue his investigation as a statutory
independent counsel, that will not change the interpretation of whether
or not the Clintons, or other people, are entitled to be reimbursed for
attorney fees. We want to make it perfectly clear exactly what our
intent is. Should this matter ever reach the courts, hopefully, this
colloquy will clarify what the managers of the bill believe the
legislation does in fact accomplish and what the words mean. That is
the reason we have taken so much of the Senate's time to explain this
provision dealing with attorney fees.
Mr. BROWN. Madam President, I rise to ask the Senator from Michigan
and the Senator from Maine a question regarding the independent counsel
law. The conference report is slightly different from the Senate bill
with respect to the award of attorneys' fees. The conference report
drops the Senate language which reads: ``No award of attorneys' fees
shall be made for any fees that would have been incurred by the
individual if the investigation had been conducted by the Department of
Justice.''
When this bill passed the Senate, we had a discussion on this
subject. We agreed that the bill should be read to allow the recovery
of attorneys' fees in cases of a malicious prosecution, a politically
motivated prosecution, or an investigation by an independent counsel
where there was no reasonable grounds to believe that the investigation
was warranted.
In the conference report, the language mentioned above, which was
deleted, is described as redundant. now that some of the language which
passed the Senate has been removed, is it still the case, as the
conference report suggests, that attorneys' fees should be awarded in
cases of malicious prosecutions, politically motivated prosecutions,
and investigations by an independent counsel where there was no
reasonable grounds to believe that the investigation was warranted?
Mr. LEVIN. The Senator is correct that the conference report, and the
bill in its final form should be read to allow the award of attorneys'
fees in the event of a malicious or abusive prosecution by an
independent counsel.
Mr. COHEN. I agree with the Senator from Michigan.
Mr. LEVIN. If I may add one word to what my friend from Maine said
about the purpose of the colloquy, it is important in this case that
the colloquy be read and not simply be inserted into the Record. It is
important that the intent of the principal sponsors of this legislation
be known to the court. Whether that intent is one where we are in total
harmony, or whether we are not in total harmony, it is still important
that our understanding be on this record, and that the legislation be
understood by the court with that intent, or intents, known to the
court as one that has been discussed by the sponsors of this bill.
Senator Cohen has worked as hard as any Senator that I know of on
independent counsel. I want to commend him for the bipartisan manner in
which he has approached this matter. He and I have worked on
independent counsel under a number of administrations, both Democratic
and Republican. It has always been our commitment to each other and, I
think, beyond that, to the Nation. We would support this bill, whether
or not a Democratic President or a Republican President was in office.
Madam President, I ask unanimous consent that I be allowed to proceed
for two additional minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Madam President, there are a number of other minor
differences between the Senate and House bills that are resolved in the
conference report. They include provisions related to limiting
independent counsels' staff and travel expenses; encouraging them to
request that Justice Department personnel be detailed to their staffs;
facilitating financial oversight by the General Accounting Office;
reducing the law's post-employment coverage to one year after an
individual leaves a covered office; limiting the Attorney General's
ability to use the lack of evidence of criminal intent to justify
closing a case prior to appointment of an independent counsel'
extending the time allotted from 15 to 30 days for the Attorney General
to determine whether a preliminary investigation is appropriate in a
particular matter; and similar measures.
In all, I think this bill, if enacted into law, will strengthen the
independent counsel law in many respects and make it an even more
useful mechanism to keep the public's trust in government. I hope my
colleagues will join me in supporting the conference report on S. 24
and returning the independent counsel law to the books as soon as
possible.
I ask unanimous consent that following my remarks there be printed in
the Record a summary of the conference report before us and a brief
description of how the independent counsel law would operate if this
bill were to become law.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Independent Counsel Reauthorization Act of 1994
The Independent Counsel Reauthorization Act of 1994, S. 24,
authored by Senators Carl Levin (D-MI) and Bill Cohen (R-ME),
passed the Senate on November 18, 1993, by a vote of 76 to
21. A similar bill, introduced by Congressmen Jack Brooks (D-
TX), John Bryant (D-TX) and Barney Frank (D-MA), passed the
House on February 10, 1994, by a vote of 356 to 46. The
conference report on S. 24: (1) reauthorizes the law for 5
years, (2) strengthens the controls on independent counsels,
and (3) makes it clear that the law applies to Members of
Congress. The bill:
(1) 5-year Reauthorization. Reauthorizes the independent
counsel law until 1999.
Reasonable Expenditures: requires independent counsels to
comply with Justice Department spending policies, act with
``due regard for expense,'' authorize only ``reasonable and
lawful expenditures,'' and appoint staff to track costs and
incur personal liability for improper expenditures;
Federal Office Space: requires use of federal office space,
unless other arrangements are less costly;
Staff Compensation: limits independent counsel staff
compensation to amounts paid for comparable positions in the
U.S. Attorney's Office of the District of Columbia;
Travel Expenses: limits travel expenses by making it clear
federal travel laws apply to independent counsels and, after
one year in office, that independent counsels and staff are
not entitled to travel or subsistence expenses for commuting
to or from the city in which their primary office is located;
Audits: requires semi-annual and final audits of
independent counsel expenditures by GAO;
Court Reviews: requires periodic court reviews to determine
whether an independent counsel office should be terminated
because its work is substantially complete:
Final Report: clarifies obligation of independent counsel
to provide a complete account of their activities in the
final report and to avoid conclusory statements that violate
normal standards of due process, privacy and fairness;
Law Enforcement Policies: clarifies the obligation of
independent counsel to comply with Justice Department law
enforcement policies;
Ethics Enforcement: clarifies the authority of the Justice
Department and Office of Government Ethics to enforce
standards of conduct for independent counsels;
Transition Rules for Statutory and Regulatory Independent
Counsel: clarifies how the new law applies to the two sitting
statutory independent counsels and removes a prohibition on
the court's authority to appoint the regulatory independent
counsel as the statutory independent counsel in the Madison
Guaranty case, should sufficient grounds exist to request an
independent counsel under the statute.
(3) Members of Congress. Clarifies and broadens the
Attorney General's authority to use independent counsels in
cases involving Members of Congress.
how will the independent counsel law work?
Threshhold inquiry
The independent counsel statute is triggered only when the
Attorney General receives specific information from a
credible source that a federal crime may have been committed
by: a covered official such as the President or a Cabinet
officer; a Member of Congress if the Attorney General
determines that the public interest requires an investigation
by an independent counsel, rather than the Justice
Department; or any other person whose investigation, if
handled by the Justice Department, might result in a
personal, financial or political conflict of interest. The
Attorney General has 30 days to determine whether the
threshhold standard has been met to commence proceedings
under the independent counsel law.
Preliminary investigation
If proceedings are commenced under the independent counsel
law, the Attorney General conducts a preliminary
investigation for up to 90 days, with one 60-day extension
available upon a showing of good cause. If at the end of the
preliminary investigation, the Attorney General determines
there are reasonable grounds to believe further investigation
is warranted, the Attorney General must request appointment
of an independent counsel.
Appointment of independent counsel
If the Attorney General requests appointment of an
independent counsel, the special court that makes such
appointments must select an appropriate person and define the
scope of the investigation to be conducted, relying on the
information provided by the Attorney General.
Independent counsel investigation
An independent counsel must conduct an investigation and
any prosecution in compliance with the independent counsel
law, including requirements for following Justice Department
guidelines on spending and criminal law enforcement and new
restrictions on staff, travel and office expenses.
Independent counsels must file annual progress reports and
semi-annual expenditure reports, and the General Accounting
Office must conduct semi-annual and final audits of
expenditures.
Termination of independent counsel office
Periodic reviews by the special court determine whether an
independent counsel's work is substantially complete and the
office should be terminated. These reviews take place two
years after an independent counsel is appointed to office,
two years after that, and annually thereafter. Each
independent counsel must file with the court a final report
describing fully and completely all actions taken.
Independent counsels are no longer required to explain, in
every instance, the reasons for not prosecuting the subjects
of their investigations, but do retain the discretion to
provide such explanations when the independent counsel
believes it would be in the public interest.
Mr. LEVIN. Madam President, let me take just one moment to commend
Elise Bean and Linda Gustitus of my staff who have worked so diligently
and effectively for the passage of this bill. They have been absolutely
first class in their grasp of the issues and in the attention to detail
and the ability to work with people of different views. We just simply
would not be here today without their guiding hand. I thank them.
I also thank very much Kim Cortnell of Senator Cohen's staff and
Betty Ann Soiefer of Senator Glenn's staff. They also made it possible
for us to reach this final conclusion here today.
The PRESIDING OFFICER. Who yields time?
Mr. COHEN. Madam President, I echo exactly what Senator Levin said of
our staff. Kim Corthell of my staff has worked with Linda and Elise and
in a completely bipartisan fashion.
I commend Kim once again and thank her publicly for all the work she
has done.
I yield back the remainder of my time.
The PRESIDING OFFICER. Is there further debate?
All time is yielded back.
The question is on the adoption of the conference report.
The conference report was agreed to.
Mr. LEVIN. Madam President, I move to reconsider the vote.
Mr. COHEN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Mr. LEVIN. I thank the Chair.
(The remarks of Mr. LEVIN pertaining to the introduction of S. 2156
are located in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
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