[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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