[Congressional Record Volume 143, Number 1 (Tuesday, January 7, 1997)]
[Extensions of Remarks]
[Pages E24-E25]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             INTRODUCTION OF INDEPENDENT COUNSEL LAW REFORM

                                 ______
                                 

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                        Tuesday, January 7, 1997

  Mr. CONYERS. Mr. Speaker, today I am introducing a new bill that will 
amend the independent counsel law to reform many of the current law's 
clear blemishes.
  Although this bill is not intended to embarrass or target the 
Whitewater independent counsel Ken Starr, the need for serious 
revisions to the independent counsel law has become clear to me after 
observing the abuses taking place in the Whitewater case. Whatever your 
view of Whitewater, you may be surprised to learn that the 
investigation of Whitewater has already cost more money and involved 
more FBI agents than the investigation of the World Trade Center 
bombing.
  No matter how serious you think Whitewater may be, there is 
absolutely no comparison between a land deal that occurred over 17 
years ago and a terrorist conspiracy to blow up a major American 
landmark and office building, killing many people, injuring scores of 
others, reeking havoc and mayhem on the entire city of New York, and 
causing millions of dollars in damages.
  The office of the independent counsel has run amok. It is time that 
we stopped allowing independent counsels to run off on their own with 
no accountability to run up bills running into the millions of dollars 
with little to no benefit for the American people.
  The prosecution of Whitewater has also brought up many ethical 
matters--beginning with the initial appointment process. My bill will 
require all ex parte communications relating to the appointment of an 
independent counsel by the judges who appoint the counsel to be 
memorialized.
  The appointment of Ken Star has also flagged several other ethical 
issues that should be considered before the appointment of any future 
counsels.
  Are lawyers who have previously represented people with interests 
adverse to the target of the investigation truly able to be 
independent? Ken Starr represented Paula Jones, the woman who is suing 
the President for sexual harassment, and the Bradley Foundation, a 
conservative organization known for its vitriolic coverage of 
Whitewater. Such prior representation raises, to my mind, at the very 
least, the appearance of a conflict.
  In addition, while pursuing the Whitewater matter, Judge Starr has 
remained affiliated

[[Page E25]]

with the law firm of Kirkland & Ellis where he pulls down over a 
million dollars a year. Do we want an independent counsel who will 
investigate the matter and do his or her job as quickly as possible 
without distractions or do we want someone who fits the investigation 
in around other commitments so as not to diminish his high salary?
  Mr. Starr's continued affiliation with his firm raises other 
troubling ethical questions--should an independent counsel be in the 
position of questioning individuals who are in turn questioning his own 
law firm about their prior activities--in this case the Resolution 
Trust Corporation?
  It seems to me that the special court should at least consider such 
conflicts when appointing an independent counsel and my bill will 
require the court to consider such issues.
  As important as these ethical questions are, an even greater problem 
is that these questions distract us from the main issue--the Whitewater 
investigation itself. In recent months you have not been able to read a 
single article about Whitewater before bumping into a discussion of Ken 
Starr's ethical jungle. Because the office of the independent counsel 
is so important and so high profile, those appointed to the position 
should not have even the appearance of conflicts.
  My bill would require a court appointing an independent counsel to 
look at the potential counsel's past and present conflicts and to 
consider whether the counsel should work on the investigation full 
time.
  I also want to note my grave disappointment over the politicization 
of efforts to revise the independent counsel law.
  Last February, the Crime Subcommittee held a hearing on this matter 
and there appeared to be widespread bipartisan agreement that the 
statute is in need of revisions.
  I hope that Chairman Hyde will consider this bill, and in the spirit 
of bipartisanship that was exhibited during the independent counsel 
hearing, schedule a markup as quickly as possible.

          Conyers' Independent Counsel Law--Section by Section

     SECTION 1. SHORT TITLE.

       The title of the bill is the ``Independent Counsel 
     Accountability and Reform Act of 1997.''

     SEC. 2. EXTENSION.

       This section reauthorizes the Independent Counsel Act.

     SEC. 3. APPOINTMENT AUTHORITY.

       This section requires at least one member of the division 
     of the court appointing an independent counsel to have been 
     named to the Federal bench by a President of a different 
     political party than the other two members of the court.
       This section gives the District Court for the District of 
     Columbia jurisdiction over the special division.
       This section provides that the members of the special 
     division shall be bound by the Judicial Code of Conduct. It 
     authorizes the judges appointing an independent counsel to 
     seek comments about potential nominees, but requires them to 
     memorialize, not the substance, but the fact of those 
     communications.
       This section requires the special division to consider 
     whether: (1) a potential independent counsel has any 
     conflicts of interest; (2) will devote him or her self to the 
     investigation full time; and (3) the potential counsel has 
     prosecutorial experience.

     SEC. 4. BASIS FOR PRELIMINARY INVESTIGATION.

       This section requires the Attorney General to conduct a 
     preliminary investigation whenever she has received specific 
     information from a credible source that an individual subject 
     to the Independent Counsel Law has committed any federal 
     felony or any federal misdemeanor for which there is an 
     established pattern of prosecution.

     SEC. 5. SUBPOENA POWER.

       This section gives the Attorney General the power to issue 
     subpoenas duces tecum when conducting a preliminary 
     investigation.

     SEC. 6. LEVEL OF EVIDENCE.

       This section allows the Attorney General to determine that 
     there is no basis for an investigation to continue if, by a 
     preponderance of the evidence, she determines that the 
     subject of the investigation lacked the requisite state of 
     mind.

     SEC. 7. PROSECUTORIAL JURISDICTION OF INDEPENDENT COUNSEL.

       This section limits the scope of the independent counsel's 
     investigation to those matters for which the Attorney General 
     has requested the appointment of the counsel and matters 
     directly related to such criminal violations, including 
     perjury, obstruction of justice, destruction of the evidence, 
     and intimidation of witnesses.

     SEC. 8. CONSULTATION WITH THE DEPARTMENT OF JUSTICE.

       This section allows an independent counsel to consult with 
     the Department of Justice regarding the policies and 
     practices of the Department is such consultation would not 
     compromise the counsel's independence.

     SEC. 9. AUTHORITIES AND DUTIES OF INDEPENDENT COUNSEL.

       This section requires the independent counsel to comply 
     with the Department of Justice's policies for handling the 
     release of information relating to criminal proceedings.
       This section requires the independent counsel to petition 
     the court, after 2 years, for funding to continue the 
     investigation. This section also requires the periodic 
     reports filed by the independent counsel to include 
     information justifying the office's expenditures.

     SEC. 10. REMOVAL, TERMINATION AND PERIODIC REAPPOINTMENT OF 
                   INDEPENDENT COUNSEL.

       This section adds the subject of the investigation to the 
     list of those who can seek the termination of the independent 
     counsel on the ground that the investigation has been 
     completed or that it would be appropriate for the Department 
     of Justice to complete the investigation or conduct any 
     prosecution.
       This section requires the independent counsel to petition 
     the court for reappointment every 2 years and allows the 
     court to appoint a new counsel if the court finds that 
     appointed counsel is no longer the appropriate person to 
     carry out the investigation.

     SEC. 11. JOB PROTECTIONS FOR INDIVIDUALS UNDER INVESTIGATION.

       This section protects individuals whose positions are not 
     excepted from the competitive service on the basis of 
     confidential, policy-determining, policymaking, or policy 
     advocating character from being terminated for the sole 
     reason that the person is the subject of an independent 
     counsel investigation.

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