[Congressional Record Volume 145, Number 94 (Tuesday, June 29, 1999)]
[Senate]
[Pages S7766-S7790]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 INDEPENDENT COUNSEL REFORM ACT OF 1999

  Mr. SPECTER. Mr. President, I seek recognition today to join my 
colleagues Senators Levin, Lieberman, and Collins in introducing the 
Independent Counsel Reform Act of 1999. Our bill would accomplish two 
important goals. First, it would reauthorize the institution of the 
independent counsel for another 5 years. Second, our bill would make 
significant changes to the existing independent counsel statute to 
correct a number of problems which have become clear to all of us 
during the course of the past few years.
  Tomorrow, the independent counsel statute will sunset. The law is 
dying because there appears to be a consensus that it created more 
problems than it solved. Many of us have forgotten the very serious 
problems and conflicts that led us to pass the statute in the first 
place. Any problems with the law can be fixed, and our bill addresses 
the issues that have caused the most serious complaints. But it would 
be a serious error to eliminate the institution of the independent 
counsel.
  Many years have passed since President Nixon's infamous Saturday 
Night Massacre. Yet it is important that we remember this episode 
because it is such a powerful reminder of why we

[[Page S7767]]

passed the independent counsel statute and why the statute is still 
needed today.
  Before there was an independent counsel, the Attorney General 
appointed special prosecutors under his control to conduct 
investigations of Presidents and other high ranking officials. After 
the Watergate break-in, Attorney General Elliot Richardson appointed 
Archibald Cox to serve as the Watergate Special Prosecutor. When 
President Nixon decided that Cox's investigation was getting too close 
to the truth, he sought to have Cox fired. The President was legally 
entitled to fire Cox, of course, since Cox was a Justice Department 
employee like any other. When Attorney General Elliot Richardson 
refused to fire Cox, Richardson was fired. When Deputy Attorney General 
William Ruckelshaus refused to fire Cox, Ruckelshaus was also fired. 
Finally, Solicitor General Robert Bork agreed to fire Cox.
  After Archibald Cox was fired, the White House announced that the 
office of the Watergate special prosecutor was to be closed and the 
President's chief of staff sent the FBI to surround Cox's offices and 
seize the records he had compiled. Henry Ruth, an old friend of mine 
who was working at the time as Archibald Cox's top deputy, described 
the following scene in his testimony before the Governmental Affairs 
Committee on March 3 of this year:

       In anticipation of adverse action, we had secured copies of 
     key documents in secret locations around Washington, D.C. and 
     even removed some key items from the office that Saturday 
     night hidden in underwear and other unlikely locations. We 
     did not know whether the military would raid our homes 
     looking for documents. Unanimously, the staff of the 
     Watergate prosecutor's office just refused to leave or to 
     change anything we were doing unless someone physically 
     removed us. And if an unprecedented 450,000 telegrams of 
     spontaneous protest had not descended upon Washington, D.C. 
     in the few days after that Saturday night, no one really 
     knows if President Nixon would have succeeded in aborting the 
     investigation. In other words, we do not feel that the 
     Department of Justice was an adequate instrument for 
     investigating the President and other high officials of 
     government.

  Eventually, as a result of these telegrams and enormous public 
pressure, Leon Jaworski was appointed as a special prosecutor and the 
Watergate investigation was continued. But this positive outcome was 
far from guaranteed. As Mr. Ruth reminded the committee, ``it is 
impossible to describe how thin a thread existed at that time, and for 
three weeks, for the continuation of what was going on.''
  It was this dark episode, perhaps more than any other, which 
convinced the nation that the individual investigating the President 
must be truly independent of the President. This is a lesson we should 
have to learn only once. While recent independent counsels have made 
some mistakes, none of these mistakes are on the scale of a Saturday 
Night Massacre. With this history as our guide, let us move to fix the 
statute, not eliminate it.
  Senators Levin, Lieberman, Collins and I have all attended 5 very 
comprehensive hearings before the Senate Governmental Affairs Committee 
from February to April of this year. During these hearings, we heard 
from former independent counsels, former targets of independent 
counsels, judges on the special division of the court which appoints 
independent counsels, Independent Counsel Kenneth Starr and Attorney 
General Reno. The four of us have also met repeatedly to discuss what 
is wrong with the current law and how to fix it. The bill we introduce 
today incorporates many of the suggestions made during these hearings 
and corrects provisions in the bill which lead to the most serious 
complaints.
  First of all, we all agreed that too many independent counsels have 
been appointed for matters which simply do not warrant this high level 
of review. For example, I believe that Attorney General Reno made a 
mistake when she asked for appointment of an independent counsel to 
investigate Secretary of Labor Alexis Herman. In Secretary Herman's 
case, there was really insufficient corroboration to justify the 
allegations made against her. To address this issue, we have raised the 
evidentiary standard which must be met before the Attorney General is 
required to appoint an independent counsel. The statute currently 
requires that an independent counsel be appointed when there are 
``reasonable grounds to believe that further investigation is 
warranted.'' Our bill provides that an independent counsel must be 
appointed only when there are ``substantial grounds to believe that 
further investigation is warranted.'' This change will give an Attorney 
General the discretion to decide that evidence she receives is not 
sufficiently strong to justify an independent counsel investigation.
  As a further step to control the number of independent counsel 
investigations, our legislation limits the number of ``covered 
persons'' under the statute to the President, Vice President, members 
of the President's Cabinet, and the President's chief of staff. 
Accordingly, it would no longer be possible to appoint an independent 
counsel to investigate lower officials and staff whom an Attorney 
General could properly investigate on his or her own.
  The four of us also agreed that it is a mistake to give an 
independent counsel jurisdiction over more than one investigation. For 
instance, Kenneth Starr started as the independent counsel for 
Whitewater. Attorney General Reno later expanded his jurisdiction to 
cover Travelgate, Filegate, the death of Vince Foster, and, or course, 
Monica Lewinsky. Unfortunately, the Attorney General's repeated 
expansion of Mr. Starr's jurisdiction created the mistaken impression 
that Mr. Starr was on a personal crusade against President Clinton, 
opening new lines of inquiry when prior ones failed to bear fruit. 
After Attorney General Reno expanded Mr. Starr's jurisdiction to 
include Monica Lewinsky, I publicly commented that this was a mistake, 
not because Kenneth Starr was not competent to handle the 
investigation, but because I was afraid that the public would see this 
as yet further proof that Starr was on a vendetta. I'm afraid this is 
exactly what came to pass.

  Our bill would eliminate this problem by deleting the provision which 
allows the Attorney General to expand the jurisdiction of an 
independent counsel beyond his or her original mandate. Our bill 
further provides that the independent counsel can investigate only 
topics in his original jurisdiction or those ``directly related'' 
thereto.
  The four of us also agreed that some independent counsel 
investigations drag on too long. Lawrence Walsh's Iran/Contra 
investigation lasted 6 years. Kenneth Starr's investigation of 
President Clinton has been going on for almost 5 years. Investigations 
of this length are really an anomaly in our criminal justice system. 
Federal grand juries are empaneled for a period of 18 months. As 
district attorney of Philadelphia, I had a series of grand juries on 
complex topics such as municipal corruption, police corruption and 
drugs all of which lasted 18 months. If you can't find certain facts in 
18 months, I think the odds are pretty good that you will never find 
them.
  Our bill sets a 2-year time limit for independent counsel 
investigations. Since there are some who would try to take advantage of 
this time limit and ``run out the clock'' on an investigation, our bill 
also empowers the special division of the court to extend this original 
2-year period for as long as necessary to make up for dilatory tactics. 
Our bill also provides that the special division can extend the 
original time period for good cause. Finally, the bill requires the 
Federal courts to conduct an expedited review of all matters relating 
to an investigation and a prosecution by an independent counsel.
  Another complaint about the Starr investigation was that his report 
to Congress was a partisan document making an argument for impeachment 
rather than providing an impartial recitation of evidence. While I 
believe that Mr. Starr was merely doing his job when he submitted this 
report, I do agree that requiring such a report inserts an independent 
counsel into a process--impeachment--which should be left entirely to 
Congress. Accordingly, our bill deletes the requirement that the 
independent counsel submit a report to Congress of any substantial and 
credible information that may constitute grounds for an impeachment.
  While Kenneth Starr was blamed for many things that were not his 
fault, I do believe he made a mistake when he decided to continue his 
private law practice while he was serving as an independent counsel. 
The job of being an independent counsel is a privilege and an enormous 
responsibility--it deserves someone's full time attention.

[[Page S7768]]

Accordingly, our bill requires that an independent counsel serve on a 
full-time basis for the duration of his or her investigation.
  It appears that a majority of our colleagues believe that it is 
better to let independent counsel statute die and return to the old 
days when special prosecutors appointed and controlled by the Attorney 
General will investigate the President and his Cabinet. I am confident, 
however, that after the dust settles and tempers abate, our colleagues 
will realize that the independent counsel statute provides a better way 
to handle investigations of the President and his cabinet than any of 
the alternatives.
  We must all remember that the independent counsel statute was passed 
to address a serious problem inherent in our system of government--the 
potential for abuse and conflicts of interest when the Attorney General 
investigates the President and other high-level executive branch 
officials. After all, it is the President who appoints the Attorney 
General and is the Attorney General's boss. Often the Attorney General 
and the President are close friends. Accordingly, there is an inherent 
conflict of interest in having the Attorney General control an 
investigation of the President or the President's closest associates. 
Even if an Attorney General were capable of conducting an impartial 
investigation, the appearance of a conflict of interest is serious 
enough to discredit the Attorney General's findings, especially a 
finding of innocence.
  The independent counsel statute is the only way to address this 
inherent conflict of interest. As memories of the Saturday Night 
Massacre have been supplanted by memories of Kenneth Starr, the 
pendulum of public opinion has swung too far against the statute. I am 
confident that as soon as the Attorney General begins to investigate 
his or her colleagues in the White House, the pendulum will swing back 
in the opposite direction. When this occurs, I believe that our 
colleagues will see that our approach is the best approach--to fix the 
problems in the statute, not abandon it.
  To reiterate, the existing independent counsel statute is set to 
expire by sunset provisions tomorrow, June 30. There have been a series 
of five extensive hearings held in the Governmental Affairs Committee 
chaired by our distinguished colleague, Senator Thompson. During the 
course of those hearings, attended by all four of the cosponsors of 
this legislation, we have heard extensive testimony. The four of us 
have met on a number of occasions to craft the legislation which we are 
introducing today.
  Our fundamental conclusion is that the Attorney General, acting 
through the Department of Justice, has an irreconcilable conflict of 
interest when it comes to investigating top officials of the 
administration. This is a judgment which we come to from our various 
points of view. My own perspective is molded significantly by my 
experience as district attorney of Philadelphia, knowing in detail the 
work of a prosecuting attorney, and the backdrop of the independent 
counsel statute was the ``Saturday Night Massacre,'' where President 
Nixon was under investigation and fired two Attorneys General until he 
found one who would fire the special prosecutor, Archibald Cox.
  What is not recollected, but was testified to at our hearings by 
Henry Ruth, later the special prosecutor succeeding Leon Jaworski, was 
that at a critical moment, when President Nixon decided to eliminate 
the special prosecutor, the President's Chief of Staff sent the FBI to 
surround the office of the special prosecutor and to seize the special 
prosecutor's papers. As Henry Ruth outlined it, those in the office 
took key documents hidden under their clothing, not knowing what would 
happen next. It was only the public outrage, and some 450,000 telegrams 
which descended on Washington, which led President Nixon to change his 
position.
  But the importance of independence in the prosecutor's office cannot 
be overly emphasized. We have seen experiences with independent 
counsels, two to be specific, that by Judge Walsh, former Judge Walsh, 
who investigated President Reagan's administration in Iran-contra, and 
Judge Starr, former Judge Starr, who investigated President Clinton, 
where those two investigations have drawn the wrath on both sides of 
the political aisle. There does appear to be a consensus at the moment 
that there ought not be a renewal of the independent counsel statute. I 
personally believe, and Senators Lieberman, Levin, and Collins concur, 
that this is a fundamental mistake. So we have worked from the mistakes 
of the past to craft a reform bill, and we have targeted the errors.
  Sooner or later a crisis will arise in Washington. It happens all the 
time. The crisis will be about the need to investigate the President or 
the Vice President or some ranking official.
  The question will present itself about the inherent conflict of 
interest of the Attorney General, and this statute will be available to 
deal with the problem.
  We have dealt with the mistakes of Walsh-Starr investigations by 
limiting the subjects. Only the President, Vice President, Attorney 
General, and Cabinet members will be subject to investigation. There 
will not be an expansion of jurisdiction unless directly related to the 
central charge, which would eliminate the Monica Lewinsky 
investigation.
  The independent counsel would have to be full time. I know from my 
days as district attorney it was impossible to do the job full time, 
but that ought to be a minimal requirement. We have imposed a time 
limit of some 2 years to be extended for cause, or to be extended 
automatically for delaying tactics, or by priority given by appellate 
courts on any legal issues raised. The independent counsel would have 
to submit an annual budget.
  My colleagues are on the floor awaiting recognition. I inquire of the 
Chair how much of the 30 minutes has elapsed.
  The PRESIDING OFFICER. Five minutes 40 seconds.
  Mr. SPECTER. We reserve the remainder of the time, and in accordance 
with our procedure of alternating between the parties, Senator Levin 
has been on the floor but has found it necessary to absent himself for 
a moment. I yield to Senator Lieberman.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Connecticut.
  Mr. LIEBERMAN. I thank the Chair and thank my friend and colleague 
from Pennsylvania.
  Mr. President, I am very pleased to be joining today with my friends 
and colleagues, Senators Specter, Levin, and Collins, in introducing 
the Independent Counsel Reform Act of 1999. With this bill, we hope to 
convince our colleagues, disillusioned perhaps by the conduct of 
particular investigations, that the Independent Counsel statute serves 
an essential purpose, and has served us well over the past twenty 
years. We want to convince our colleagues that our legislation will 
preserve the essential ideals that motivated the enactment of this 
statute in the years after Watergate, that no person is above the law, 
and that our highest government officials must be subject to our laws 
in the same way as any other person. If they are guilty, they must be 
held accountable. If they are not, they must be cleared. The American 
people are more likely to trust the findings of an Independent 
Counsel's investigation and conclusions. Officials who are wrongly 
accused will receive vindication that is far more credible to the 
public than when it comes from the Department of Justice. As a result, 
the public's confidence in its government is enhanced by the 
Independent Counsel statute.
  We have drafted new provisions that will curb the excesses we have 
seen in a few recent investigations. These changes are substantial. The 
Committee on Governmental Affairs held five hearings on the Independent 
Counsel statute. We heard from numerous witnesses who had served as 
Independent Counsel, and as Attorney General, from former prosecutors 
and from defense attorneys. Many witnesses supported the statute, even 
defense attorneys who had represented targets in Independent Counsel 
investigations. Both witnesses who opposed the statute outright, and 
those who advocated keeping it in some form, suggested a number of 
improvements to the statute. We carefully considered those 
recommendations before we sat down to draft a bill that retains the 
essential features of the old law while reducing its scope, limiting 
the powers of the Independent Counsel, and bringing greater 
transparency into the process.

[[Page S7769]]

  As a result of our bill, there will be far fewer Independent Counsel 
appointed, they will be appointed only to investigate the highest 
government officials, and their actions will be constrained by the same 
sorts of guidelines and practical restraints that govern regular 
federal prosecutors.
  For example, officials covered by the statute will be limited to the 
President, the Vice President, the President's Chief of Staff, and 
Cabinet members. This is a major reduction in the number of officials 
currently covered by the Independent Counsel statute. We can trust the 
Department of Justice to investigate the mid-level officials listed in 
previous versions of the statute. If any other investigation raises a 
conflict of interest, the Attorney General retains the authority to 
appoint her own Special Counsel. The purpose of our bill is to reserve 
the extraordinary mechanism of a court-appointed Independent Counsel 
for those rare cases involving allegations against our highest 
Executive Branch officials.
  In another change that will reduce the number of Independent Counsel 
appointed, the threshold for seeking the appointment of an Independent 
Counsel will be raised, so that a greater amount of evidence to back up 
the allegation will be required. The Attorney General will also be 
entitled for the first time to issue subpoenas for evidence and convene 
grand juries during the preliminary investigation, and would be given 
more time to conduct the preliminary investigation. This change 
responds to concerns that, in the past, the Attorney General's hands 
have been tied during the preliminary investigation stage. With our 
bill, the Department of Justice will be able to conduct a more 
substantial preliminary investigation.
  Each Independent Counsel will have to devote his full time to the 
position for the duration of his tenure. This will prevent the 
appearance of conflicts that may arise when an Independent Counsel 
continues with his private legal practice, and it will expedite 
investigations as well. The Independent Counsel will also be expected 
to conform his conduct to the written guidelines and established 
policies of the Department of Justice. The prior version of that 
requirement contained a broad loophole, which has been eliminated.
  There have been many complaints about runaway prosecutors, who 
continue their investigations longer than is necessary or appropriate. 
Our bill will impose a time limit of two years on investigations by 
Independent Counsel. The Special Division of the Court of Appeals will 
be able to grant extensions of time, however, for good cause and to 
compensate for dilatory tactics by opposing counsel. Imposing a 
flexible time limit allows Independent Counsel the time they genuinely 
need to complete their investigations, and deters adverse counsel from 
using the time limit strategically to escape justice. But the time 
limit will also encourage future Independent Counsel to bring their 
investigations to an expeditious conclusion, and not chase down every 
imaginable lead.
  Our bill makes another important change that will prevent expansion 
of investigations into unrelated areas. Until now the statute has 
allowed the Attorney General to request an expansion of an Independent 
Counsel's prosecutorial jurisdiction into unrelated areas. This 
happened several times with Judge Starr's investigation, and I believe 
those expansions contributed to a perception that the prosecutor was 
pursuing the man and not the crime. An Independent Counsel must not 
exist to pursue every possible lead against his target until he finds 
some taint of criminality. His function, our bill makes clear, is to 
investigate that subject matter given him in his original grant of 
prosecutorial jurisdiction.
  We also considered how we might impose greater budgetary restraints 
on Independent Counsel. Some have spoken of the need for a strict 
budget cap, but this idea strikes me as impractical, if not unworkable. 
It's just impossible to know in advance what crimes a prosecutor will 
uncover, how far his investigation will have to go to get to the truth, 
how expensive a trial and any appeals will be. Instead, we are bringing 
greater budgetary transparency to the process by directing Independent 
Counsel to produce an estimated budget for each year, and by allowing 
the General Accounting Office to comment on that budget. At the moment 
not enough is known about how Independent Counsel spend their money, 
and this greater transparency will provide more incentive for Counsel 
to budget responsibly.
  A final change that we all readily agreed to was to eliminate 
entirely the requirement that an Independent Counsel refer evidence of 
impeachable offenses to the House of Representatives. The impeachment 
power is one of Congress's essential Constitutional functions, and no 
part of that role should be delegated by statute to a prosecutor.
  This bill should be thought of as a work in progress. We hope to 
gather input from other Members and from outside experts, and to have 
committee hearings, and we intend to be flexible about incorporating 
suggestions. Some of the provisions contained in the bill may raise 
constitutional concerns, which need to be fully explored. For example, 
giving the Special Division of the Court of Appeals new authority to 
decide whether an Independent Counsel has violated Department of 
Justice guidelines may violate the doctrine of Separation of Powers. 
Other provisions expanding the Court's role may also have to be 
reformulated. I hope that all interested parties will be able to work 
together on amendments as harmoniously as the four of us did in 
drafting the original legislation.
  The occasion of our introducing this legislation is tomorrow's 
expiration of the current Independent Counsel statute. Many have 
dismissed any efforts to revive the Independent Counsel as wrong and 
futile. No doubt it will be an uphill struggle, and I do not expect 
peoples' minds to be changed overnight. But I do believe that over time 
several factors will work to change peoples' minds.
  First, I feel confident that we can convince our colleagues that this 
legislation is a better product than previous versions of the statute, 
and addresses the specific concerns raised by the law's opponents. 
Those who have predicted the death of the Independent Counsel statute 
had not seen our legislation. I will work tirelessly, with the bill's 
other co-sponsors, to convince our colleagues to give this issue a 
fresh look.
  Secondly, several controversial Independent Counsel investigations 
have clearly soured some people on the law. This is understandable, but 
it is regrettable, as I do not believe these investigations revealed 
any flaws in the Independent Counsel statute that cannot be fixed. The 
passions raised by Judge Starr's investigation of the President, in 
particular, must be allowed to subside, just as it took some time for 
the passions inspired by the Iran-Contra investigation to subside 
before the Independent Counsel statute could be re-authorized in 1994.
  Finally, as these passions subside I believe Members of Congress will 
gradually be reminded that the Independent Counsel statute embodies 
certain principles fundamental to our democracy. The alternative to an 
Independent Counsel statute is a system in which the Attorney General 
must decide how to handle substantive allegations against colleagues in 
the Cabinet, or against the President. Often the President and the 
Attorney General are long-time friends and political allies. The 
Attorney General will not be trusted by some to ensure that an unbiased 
investigation will be conducted. In other cases, many will question the 
thoroughness of an investigation directed from inside the Department. 
In a time of great public cynicism about government, the Independent 
Counsel statute guarantees that even the President and his highest 
officials will have to answer for their criminal malfeasance. In that 
sense, this statute upholds the rule of law and will help stem the 
rising tide of cynicism and distrust toward our government. The 
American people support the Independent Counsel statute because it 
embodies the bedrock American principle that no person is above the 
law.
  Mr. President, I am very pleased to be joining today Senator Specter, 
Senator Levin and Senator Collins in introducing the Independent 
Counsel Reform Act of 1999. It has been a great pleasure working with 
these three colleagues across party lines in what were, first, long 
hearings in the Governmental Affairs Committee on which we all serve, 
and then some very good

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collegial discussions about how to preserve the principles involved in 
the Independent Counsel Act while responding to what we have learned, 
particularly in its recent existence and implementation. We have 
achieved a good balance.
  The point to stress--and my friend and colleague from Pennsylvania 
has just done it--is this is all about the rule of law which is at the 
heart of what the American experience is about, that no one is above 
the law. There is no monarchy, there is no autocracy. Everyone is 
supposed to be governed by the same law.
  The question is, When the highest officials of our Government, the 
most powerful people in this land are suspected of criminal wrongdoing, 
is it appropriate to have those suspicions investigated by the people 
who are suspected themselves or by those whom they have appointed? Does 
that guarantee a thorough and independent investigation, and does it 
guarantee or at least encourage the kinds of broad-based public 
acceptance of the credibility of that investigation that is critical to 
the trust and respect that we hope the American people will have for 
their Government?
  The four of us have answered that what is required is a counsel who 
is not just special, as others would provide, including the current 
Attorney General, but one that is genuinely independent, not appointed 
by the Attorney General, and not able to be fired, dismissed by the 
Attorney General.
  My research has indicated that from the last century right through 
the Nixon administration, from President Ulysses Grant to President 
Richard Nixon, there were actually six special counsel appointed to 
investigate possible criminal behavior by high officials of the 
Government, and three of those were dismissed by the administration 
they served, presumably because they began to act in a way that 
unsettled that administration.
  That is the principle of the rule of law, trust in Government, which 
we tried to embody in this proposal with the changes that Senator 
Specter has mentioned. We have added a presumption of a limited term, a 
higher threshold for the appointment of an independent counsel, a 
smaller number of people to be subject to this statute--the President, 
Vice President, Attorney General, Members of the Cabinet and the Chief 
of Staff.
  The prevailing consensus in this body and the other body is that we 
should not renew this statute and it will, of course, expire tomorrow. 
Many have dismissed the efforts we are making now as either wrong or 
futile. No doubt it will be an uphill struggle, but I am convinced it 
is the right struggle, and we can convince our colleagues of the 
justness of our cause.
  I will say something else, Mr. President. There will be an 
independent counsel statute in the future. We are either going to adopt 
it at a time when we are not in crisis, when somebody high up in our 
Government is suspected of criminal wrongdoing--and that is our hope, 
that we do not adopt it in the spirit of crisis, or we will adopt it at 
that time when someone is suspected of criminal wrongdoing and Members 
of this body and the other body will demand there not be a special 
counsel appointed by the Attorney General but an independent counsel.
  I plead with my colleagues, as the law is allowed to expire tomorrow 
and as, hopefully, we have a cooling off period, to take a look at our 
proposal, to try to separate ourselves from the controversies 
surrounding Judge Starr's time as independent counsel and that of other 
recent independent counsel, and focus on the principle of the rule of 
law, that nobody is above the law in America, and to come to agree with 
us that the best way to preserve those principles is by readopting an 
Independent Counsel Act, one that is substantially reformed.

  I thank my colleagues, and I yield the floor.
  Mr. SPECTER. Mr. President, I inquire how much time has elapsed.
  The PRESIDING OFFICER. Eleven and a half minutes has elapsed. Under 
the previous order, the Senator has control of all time until 12:35 
p.m.
  Mr. SPECTER. I thank the Chair. I yield to the distinguished Senator 
from Michigan, Mr. Levin.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I thank my good friend from Pennsylvania, 
and I commend him and Senators Collins and Lieberman for their effort 
in putting together a bill which we believe represents lessons learned 
but also represents the feeling that we need to have an independent 
counsel law, that sooner or later it will again appear that this 
country needs a way in which to independently investigate allegations 
of serious wrongdoing against high-level officials.
  The independent counsel law expires tomorrow. It was enacted in 1978 
to establish a nonpartisan process for investigating allegations of 
criminal conduct by top executive branch officials. The key purpose of 
the law is to retain public confidence in criminal investigations when 
the Government investigates its highest officials. The goal is to treat 
top Federal officials no better and equally important, no worse than a 
private citizen, and at the end of the investigation, when the judgment 
is rendered, be it a statement of guilt or innocence, to have the 
public accept that judgment as a fair and impartial one.
  Over the years, there have been many successful investigations by 
independent counsels, most of which resulted in no indictments or 
prosecutions but resolved outstanding allegations without partisanship 
or favor. There have been 20 independent counsel investigations in 20 
years. Ten of those were closed without indictment; one was closed 
because of the death of the covered person. Excluding the top five most 
expensive investigations, the average cost of an independent counsel 
investigation was under $1 million. And for all but a handful of the 
cases investigated by independent counsel, the results of the 
investigations have had the public's confidence.

  While some say the lesson of Watergate was that the previous system 
worked, I would refer our colleagues to the testimony of Henry Ruth, 
who was in charge of the Watergate special prosecution force during the 
Saturday Night Massacre. Referring to the possibility that the coverup 
by President Nixon could succeed, Mr. Ruth said, ``It is impossible to 
describe how thin a thread existed at that time.''
  But the independent counsel law, while working most of the time, has 
also been abused by a few overzealous prosecutors. These prosecutors 
have made it apparent that before we reauthorize an independent counsel 
law, it would need to be dramatically revised to prevent a recurrence 
of the abuses that we have seen. The bill we are introducing today 
represents the lessons learned, while saving the essential elements of 
the independent counsel law to preserve public confidence in the 
prosecution of our top Government officials.
  Our bill would, among other things, change the law in the following 
ways.
  First, it would preclude an independent counsel from broadening an 
investigation to matters not within the original grant of jurisdiction.
  Second, it would enforce the requirement that independent counsel 
follow the established policies of the Department of Justice by giving 
affected persons the opportunity to challenge questionable independent 
counsel actions not in line with those policies.
  Third, it would eliminate the requirement for an independent counsel 
to submit an impeachment report to the House of Representatives.
  Fourth, it would prohibit persons with an apparent or real conflict 
of interest from serving as independent counsel.
  And, fifth, it would establish a presumptive 2-year term for an 
independent counsel's investigation.
  Those are just five of the many major changes that would be made in 
the independent counsel law.
  A handful of independent counsels have exceeded the intent of the 
independent counsel law and have taken the law to places that U.S. 
Attorneys would not go when investigating private citizens.
  Independent Counsel Donald Smaltz took 4 years and spent $20 million 
investigating allegations of graft in the Agriculture Department. Yet 
his 2-month trial of former Secretary Mike Espy ended in an acquittal 
on all 30 counts of corruption. Shortly thereafter, the Supreme Court 
threw out Smaltz' conviction of Sun-Diamond Growers of California, 
concluding that

[[Page S7771]]

Smaltz and a Federal district court had stretched the law to punish 
behavior that is not a crime.
  The independent counsel for Samuel Pierce, Secretary of Housing and 
Urban Development under President Reagan, was in existence for almost 
10 years, and that included almost 4 years after the independent 
counsel publicly announced he had closed the case with respect to Mr. 
Pierce.
  Whitewater independent counsel Kenneth Starr has singlehandedly done 
more to undermine public confidence in the independent counsel law than 
anybody else. Well over half the American people think that Kenneth 
Starr is partisan and do not trust him to be fair. The editorials 
expressing concern about Mr. Starr's investigation and judgment are 
voluminous.
  Mr. President, I ask unanimous consent that six of those editorials 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                     [From the Hill, July 8, 1998]

                         Whither Kenneth Starr?

       Whitewater Independent Counselor Kenneth Starr continues to 
     disappoint his friends and delight his enemies in his long-
     running investigation of President Clinton.
       In a week in which Linda Tripp twice testified before one 
     of the three grand juries Starr convened during his four-
     year, $40 million investigation, he was slapped down by a 
     federal judge who ruled that he exceeded his authority in 
     prosecuting former Associate Attorney General Webster 
     Hubbell.
       In a stinging 35-page opinion, U.S. District Judge James 
     Robertson threw out the tax evasion indictment of Hubbell, 
     his wife, his accountant and his tax lawyer, declaring that 
     Starr had gone on ``the quintessential fishing expedition'' 
     in subpoenaing some 13,000 pages of records from Hubbell 
     after granting him immunity and then using them to build his 
     case against Hubbell.
       Starr's behavior toward Hubbell and the late Vince Foster 
     was clearly indefensible. He showed a flagrant disregard for 
     the Constitution by trying to create an exception from the 
     lawyer-client privilege in the Foster case, but he went even 
     further by ignoring Hubbell's constitutional right against 
     self-incrimination when he improperly used information he got 
     from Hubbell under a grant of immunity.
       The ruling was the latest in a series of legal and public 
     relations setbacks for Starr. Even as he defended himself 
     against charges by media watchdog Steven Brill that he 
     improperly leaked information about the Monica Lewinsky 
     investigation to reporters, Starr was rebuffed by the U.S. 
     Supreme Court, which rejected his claim that Vincent Foster's 
     right to the lawyer-client privilege ended with his death.
       Starr also was put on the defensive by news reports that 
     Tripp asked Lewinsky leading questions about her relationship 
     with President Clinton as she was secretly tape recording the 
     former White House intern. Tripp denied the reports in her 
     grand jury testimony, according to her lawyer.
       But Starr seems undeterred by his latest problems. He 
     immediately announced he will appeal the Hubbell decision, 
     even though it is almost certain to further delay the 
     conclusion of his investigation, even as some Republicans 
     hoped he would deliver an interim report to Congress before 
     they hit the campaign trail this fall. Starr's spokesman said 
     Sunday he won't submit an interim report, but will take as 
     long as he needs to determine if there is ``substantial and 
     credible information'' that crimes have been committed.
       Meanwhile, Starr's investigation continues to expand--he 
     now employs approximately 60 people, including 28 attorneys, 
     not counting FBI agents working for him, and recently added 
     7,400 square feet of office space and opened a new office in 
     Alexandria, Va.
       Starr's ultra-marathon probe still has a long way to go,be 
     he should keep in mind the original intent of the independent 
     counsel law, which was to assure a fair and impartial 
     investigation of high government officials. His recent 
     actions indicate that he's forgotten, or lost sight of, the 
     fundamental fact that our criminal justice systems works well 
     only when it ears the respect and confidence of the American 
     people.
                                  ____


                [From the New York Times, Feb. 25, 1998]

                        Ken Starr's Misjudgments

       It has long been apparent that Ken Starr has a tin ear for 
     political appearances and public relations, but his decision 
     to subpoena a White House aide, Sidney Blumenthal, undermines 
     important legal and constitutional principles. On the 
     tactical level, this move by the Independent Counsel is bone 
     stupid. As a matter of principle, it is an attack on press 
     freedom and the unrestricted flow of information that is 
     unwarranted by the facts and beyond his mandate as a 
     prosecutor.
       This latest blunder fits a pattern of chronic clumsiness 
     and periodic insensitivity to Mr. Starr's public 
     responsibilities. His attempt to slough off his public duty 
     and flee to Pepperdine University was dismaying. His 
     political ties and refusal to give up private legal clients 
     led us, in times past, to call for his removal. In four years 
     he has failed to develop sensitivity to his obligations as 
     custodian of an inquiry of national import. Apparently his 
     staff contains no one who can talk him out of bad ideas.
       This time he has failed in his obligation to the law 
     itself. The effort to collect the name of every journalist 
     who talked with a White House communications specialist 
     amounts to a perverse use of the prosecutorial mandate to 
     learn what the Nixon White House attempted to determine 
     through wire-taps. Like any newspaper, we have an obvious 
     selfish interest in the confidentiality of the reporting 
     process. But you do not have to be a journalist to see that 
     Mr. Starr has committed an ignorant assault on one of the 
     most distinctive and essential elements of American 
     democracy.
       Mr. Starr created this mess by following a bad example. Two 
     weeks ago the White House started its own demagogic search 
     for leaks in an effort to divert attention from the question 
     whether President Clinton and his associates had committed 
     perjury or suborned others to commit it. Mr. Starr may also 
     be miffed by reports that the White House has turned its 
     trademark tool of personal attack on his prosecutorial staff. 
     But he does not need to follow that pernicious example. He is 
     armed with something more honorable and powerful in the 
     mandate of the Attorney General and the majesty of the law.
       But civic health demands that Mr. Starr get on with the 
     investigation he is authorized to conduct and bring it to a 
     speedy conclusion. The public interest does not lie in Mr. 
     Blumenthal's phone records. It lies in getting, as promptly 
     as possible, the testimony of Monica Lewinsky, Vernon Jordan, 
     Bruce Lindsey, Mr. Clinton and others whose testimony bears 
     directly on the issue of false swearing.
       In a tightly reasoned article in the National Journal, 
     Stuart Taylor Jr. defended Mr. Starr's investigative 
     procedures, including calling Ms. Lewinsky's mother before 
     the grand jury, but called for him to resign in favor of 
     someone with less political baggage. We are not at that 
     point, because of the amount of time that would be lost. If 
     at all possible, the nation needs to have this business 
     driven to a conclusion without the delay that a switch in 
     leadership would entail. Every time Mr. Starr goes off on one 
     of these tangents or misreads the law he fritters away 
     support from those who believe in the importance of this 
     inquiry but bridle at his loco-weed judgments.
                                  ____


             [From the Wall Street Journal, June 25, 1998]

                   A Prosecutor Without Public Trust

                          (By Albert R. Hunt)

       When Independent Counsel Kenneth Starr continued to 
     represent tobacco companies and spoke to the law school run 
     by televangelist Pat Robertson--two of President Clinton's 
     arch enemies--his supporters insisted he wasn't a partisan. 
     He just lacked political judgment.
       When he announced he was going to leave early and accept a 
     deanship at Pepperdine University, partially funded by right-
     wing Clinton-hater Richard Mellon Scaife, the Starr chorus 
     claimed he wasn't insensitive. He lacked political judgment.
       Or when he acknowledged in a lengthy, on-the-record 
     interview with publisher Steven Brill that his office, in 
     essence, had leaked to the press during the Clinton 
     investigation, again Mr. Starr's supporters insisted he 
     wasn't part of the right-wing conspiracy. Again, he just 
     lacked political judgment.
       Let's accept the word of Mr. Starr's legal, political and 
     journalistic allies. He's not a right-wing partisan out to 
     destroy the president. He is an inexperienced prosecutor who 
     lacks political judgment. This is the man deciding whether to 
     bring a controversial case in a political setting against the 
     President of the United States.
       No matter how this sordid episode unfolds in the ensuring 
     months. Mr. Starr already has failed miserably in the central 
     role of a special prosecutor; to engender public confidence 
     that he is fair, impartial and independent.
       This week's Wall Street Journal/NBC News poll shows that 
     Americans think that he is none of the above. People are sick 
     of his investigation, don't believe that what he is 
     investigating is serious enough to even consider impeachment 
     and hold Mr. Starr, far more than the president, responsible 
     for the four year, $40 million inquiry.
       Most devastating for Mr. Starr is that nearly three-
     quarters of the respondents have little confidence that the 
     report the independent counsel is expected to send to 
     Congress will be fair and impartial; even a majority of 
     Republicans feel that way.
       Mr. Starr still holds some prosecutorial cards. Say he 
     makes a few headline indictments and assume his report to 
     Congress seems compelling. If this is so persuasive it turns 
     around one-third of the doubters--an ambitious achievement--
     the country would still be split, making it difficult to 
     consider impeachment.
       ``In every instance in which the public is asked to select 
     between Bill Clinton and Kenneth Starr, the public 
     consistently lines up on the president's side,'' note Peter 
     Hart and Robert Teeter, who conducted the survey.
       This is not a new problem for the independent counsel. But 
     just as he's rounding into what may be the final turn, his 
     public credibility is lower than ever. This reflects, a few 
     detached prosecutors suggest, his inexperience as a 
     prosecutor, a second rate staff

[[Page S7772]]

     and an obsession to topple the president which causes him to 
     overreach.
       Mr. Starr's supporters--many of whom are obsessively 
     hostile to the president--say a prosecutor can't be driven by 
     polls. A decision on whether to subpoena or indict someone 
     should be made on the legal merits and not on whether it will 
     curry favor with the public.
       But if any prosecutor lacks public support, that fatally 
     undermines his or her task; in a democracy if people don't 
     believe justice is being served, the system, by definition, 
     isn't working.
       In fact, prosecutors who go after crooked politicians, 
     mobsters or businessmen tend to be very popular with the 
     public. From Thomas Dewey to Rudy Guiliani, such prosecutions 
     have been promising stepping stones to higher office. 
     Occasionally a prosecutor over-reaches and stumbles; New 
     Orleans District Attorney Jim Garrison in the Kennedy 
     assassination and more recently Los Angeles DA Ira Reiner 
     after a flawed prosecution of alleged child abuse. Such 
     blunders are rare.
       The Starr camp replies that independent counsels have never 
     been so criticized by opponents and potential targets. That 
     will come as news to Iran-Contra Independent Counsel Lawrence 
     Walsh.
       In 1992, Senate GOP Leader Bob Dole repeatedly charged that 
     Mr. Walsh was ``completely out of control,'' Earlier, Rep. 
     Henry Hyde complained the Walsh investigation was of 
     ``essentially minor violations.'' Terry Eastland, a former 
     top Justice Department official under Ronald Reagan, charged 
     that the Walsh inquiry had been a ``waste of money,'' having 
     spent more than $18.5 million of taxpayer funds. President 
     Bush complained it ``has been investigated over and over 
     again. . . . It's been going on for years.''
       The notion that Mr. Starr has been a naive, defenseless 
     target was undercut by Mr. Brill's controversial article last 
     week, in which the independent counsel acknowledged that his 
     deputy, Jackie Bennett, spends more than a little time with 
     the press. That's not a surprise. One can disagree with some 
     of Mr. Brill's sweeping conclusions about the independent 
     counsel and the press and still have contempt for Mr. Starr's 
     pious hypocrisy for pretending earlier that he was above the 
     dirty business of leaking.
       Ironically, what infuriates many conservatives is that Mr. 
     Clinton is getting away without paying any price. That's 
     simply not the case. Based on polls, and especially on 
     anecdotal evidence from outside the Beltway, many--probably 
     most--Americans think the president had a sexual relationship 
     with Monica Lewinsky and lied about it.
       They don't want him tarred and feathered or thrown out of 
     office for these indiscretions--a typical response is that 
     most people lie about sex--but it's affected their view of 
     him. His high job approval ratings reflect the terrific 
     economy. Bill Clinton today is a much discredited president 
     with virtually no moral authority. The latest example is the 
     tobacco bill, where he was simply unable to rally public and 
     congressional support.
       A few weeks ago a delightful retired couple in Carmel 
     Valley, Calif., Earl and Miriam Selby, talked about how for 
     the first time in 30 years of marriage they were arguing 
     about politics. Earl Selby, a former newspaperman and 
     magazine writer, who proudly notes he cast his first vote for 
     FDR's third term in 1940, is ``outraged at how Clinton has 
     lowered respect for the presidency.'' Miriam, a former 
     magazine writer, is equally ``outraged at Starr's tactics and 
     prosecutorial abuse.''
       There is no need for an argument, Selbys. You both are 
     right.
                                  ____


                [From the New York Times, June 22, 1998]

                        Politics by Other Means

                           (By Anthony Lewis)

       Kenneth Starr likes to say that he is going ``by the book'' 
     in his investigation of President Clinton and Monica 
     Lewinsky. The relevant book is the Justice Department's Rules 
     of Conduct, published in the Code of Federal Regulations.
       Rule 77.5 says that a Government lawyer ``may not 
     communicate'' with a party ``who the attorney for the 
     government knows is represented by an attorney concerning the 
     subject matter of the representation without the consent of 
     the lawyer representing such a party.''
       On Jan. 16 Mr. Starr's office arranged to have Linda Tripp 
     meet Monica Lewinsky at the Ritz-Carlton Hotel in Pentagon 
     City. Suddenly Mr. Starr's agents descended on Ms. Lewinsky. 
     They questioned her for many hours.
       Ms. Lewinsky was represented by Francis D. Carter, who was 
     negotiating for her with Paula Jones' lawyers. Mr. Starr did 
     not ask Mr. Carter's consent to speak with his client, or 
     even inform him.
       Violation of that rule was not a light matter. The 
     Independent Counsel Act requires such a counsel to follow 
     Justice Department regulations unless that would undermine 
     the purpose of the act--which respecting the right to a 
     lawyer plainly would not--and makes failure to obey the rules 
     ``good cause'' for the Attorney General to remove the 
     counsel.
       Mr. Starr has also violated, wholesale, the rules against 
     prosecutors talking to the press about pending 
     investigations. If anyone doubted that, it has now been made 
     unanswerably clear by Steven Brill's meticulous marshaling of 
     the evidence in the first issue of Brill's Content.
       In his angry reply to the article, Mr. Starr never denied 
     saying to Mr. Brill: ``I have talked with reporters on 
     background on some occasions, but Jackie [Bennett Jr., his 
     deputy] has been the primary person involved in that. He has 
     spent much of his time talking to individual reporters.''
       Mr. Brill said that the Starr and Bennett talks with the 
     press violated Rule 6e of the Federal Rules of Criminal 
     Procedure, which forbid disclosure of grand-jury information. 
     Mr. Starr argued in reply that Rule 6e did not apply because 
     he and his staff disclosed not grand-jury testimony but 
     information obtained elsewhere and comments on it.
       Whatever the merits of the legal argument about Rule 6e, 
     didn't the Starr leaks violate ethical rules and Justice 
     Department regulations? When Mr. Brill asked that question, 
     Mr. Starr replied that they would be violations except when 
     he was ``countering misinformation'' about his office. ``We 
     have a duty to promote confidence in the work of this 
     office.''
       What a breathtaking assertion. It means that whenever 
     anyone disagrees with him, Mr. Starr has a right to break the 
     rules and become an unnamed source for some journalist ready 
     to convey his version of the story. In politics, that is 
     called spinning.
       Mr. Starr's assertion that his leaks are only to counter 
     misinformation was also false. On the day the Lewinsky story 
     broke, Jan. 21, Mr. Starr told Mr. Brill, Jackie Bennett 
     spent ``much of the day briefing the press.'' That was before 
     there was any ``misinformation'' to answer.
       Mr. Starr's veracity is in question on another matter. The 
     Brill article says Michael Isikoff of Newsweek told Mr. Brill 
     that Jackie Bennett asked him to hold up writing about Monica 
     Lewinsky in January because ``they were going to try to get 
     Lewinsky to wire herself and get [Vernon] Jordan and maybe 
     even the President on tape obstructing justice.''
       Mr. Starr said his office had ``never asked Ms. Lewinsky to 
     agree to wire herself for a conversion with Mr. Jordan or the 
     President.'' But it was not only Mr. Isikoff who said that 
     happened. Ms. Lewinsky's lawyers said in February, in Time 
     magazine, that the prosecutors ``wanted her wired . . . to 
     record telephone calls with the President of the U.S., Vernon 
     Jordan and others''--and made her consent a condition of 
     being given immunity from prosecution.
       We all know that prosecutors leak. But Kenneth Starr has 
     been so sanctimonious, so insistent that he never leaks.
       Far from going ``by the book,'' he has in many ways abused 
     his extraordinary power. Most Americans perceive that. Others 
     are so critical of President Clinton that they overlook Mr. 
     Starr's abuses. They need reminding that however tempting the 
     target of a prosecutor, the end does not justify abusive 
     means.
                                  ____


              [From the Los Angeles Times, Feb. 26, 1998]

                       Starr Steps Out of Bounds

       Special counsel Kenneth W. Starr plans today to bring a 
     White House advisor and his records before a grand jury to 
     try to find out what he said to reporters about the Monica 
     Lewinsky affair. The basis for this extraordinary assault on 
     privacy is Starr's suspicion that Clinton administration 
     aides have been spreading ``misinformation'' about personnel 
     in the special counsel's office. As Starr sees it, that could 
     represent an effort to ``intimidate prosecutors and 
     investigators, impede the work of the grand jury, or 
     otherwise obstruct justice.'' All of these are federal 
     crimes.
       The subpoena that Starr has issued for White House aide 
     Sidney Blumenthal and his records appears to be allowable 
     under the special counsel's broad powers. At the same time 
     Starr is clearly treading on highly problematical ground with 
     his suggestion that any White House campaign to try to 
     discredit him or his investigators may represent an illegal 
     effort to influence or interfere with the work of prosecutors 
     or grand jurors.
       Starr has spent a lot of time in Washington, enough to 
     grasp the difference between engaging in hardball politics 
     and committing a felony. And he has been a lawyer long enough 
     to understand that constitutionally protected comment about 
     the special counsel's office does not constitute a 
     conspiratorial attempt to subvert justice.
       The truth is that in the Lewinsky investigation both the 
     independent counsel and the White House have been playing the 
     game of media manipulation to the hilt, using leaks, planted 
     stories, spin control and anything else--some of it pretty 
     nasty stuff indeed--to try to shape public opinion.
       What set Starr off were stories about judicial criticism or 
     penalties levied against two of his prosecutors because of 
     their professional conduct years ago. What the two did is a 
     matter of public record. But Starr says many other 
     allegations about personnel involved in his investigation are 
     deliberate falsehoods, and so he has dubiously raised the 
     felonious specter of attempted intimidation.
       But intimidation can cut two ways. Surely hauling a White 
     House political adviser and his log of press contacts before 
     a grand jury can be seen as a sly attempt to keep Clinton 
     loyalists from talking with the media, denying the public 
     information it has a right to hear and evaluate for itself. 
     That is not within Starr's mandate.
       The special counsel was not hired to act as a censor. His 
     investigation has often been accused of ranging wide afield. 
     This time it has stumbled right off the map.

[[Page S7773]]

     
                                  ____
              [From the Detroit Free Press, Feb. 26, 1998]

                              Starr's War

       Whatever else Kenneth Starr may accomplish, he's becoming 
     the best brief for the abolition of the special prosecutor's 
     office that anybody could ever imagine. He is exercising 
     power without wisdom, power without restraint. His latest 
     wave of subpoenas is an attempt to use the grand jury process 
     to punish his critics, an outrageous misuse of prosecutorial 
     gunpowder.
       What does Mr. Starr's current onslaught have to do with 
     Whitewater? What does it have to do even with Monica 
     Lewinsky? Mr. Starr is angry that someone at the White House 
     has dredged up old newspaper stories that suggest he's got a 
     couple of pit bulls on his staff, one of whom was once cited 
     for overzealousness in a previous job as a prosecutor. So 
     faxing old New York Daily News stories around, apparently, 
     has just become a federal crime
       Mr. Starr is out to bring down the president, and he seems 
     not to care if he brings down the integrity of the justice 
     system with him. The president's defenders, meanwhile, are 
     whipping up the press to investigate the investigators, 
     blasting Mr. Starr for leaks from his own staff and in 
     general tipping over garbage cans in the hope that the 
     clangor will distract attention from the potential 
     obstruction of justice charge that hangs over the president.
       This is unseemly behavior by both sides, but the root of it 
     is the unchecked power given to Mr. Starr, Virtually no one 
     has the ability to jerk his leash; the attorney general can 
     remove him only for flagrant violation of the law. He's the 
     only person or institution in the U.S. government that 
     operates without checks and balances.
       Come 1999, when the statute is up for renewal, Republicans 
     who are hugely enjoying the spectacle of a Democratic 
     president at bay ought to recall how they felt about Lawrence 
     Walsh, and how they'll feel when some future prosecutor 
     recklessly targets another GOP occupant of the White House.
       For now, for a moment, assume the worst is true about Bill 
     Clinton (although Mr. Starr has spend nearly 3 1/2 years and 
     $26 million and come up dry)--sexual indiscretion, something 
     funny about a failed land deal in Arkansas. Then ask who's 
     doing the worse damage to fairness, justice, the conduct of 
     government and the democratic process--the president or his 
     pursuer? We rest our case.

  Mr. LEVIN. A few of the headlines read: ``A Prosecutor Without Public 
Trust,'' ``Ken Starr's Misjudgments,'' and ``Starr Steps Out of 
Bounds.'' Robert Morgenthau, in fact, the District Attorney for 
Manhattan, and one of the most respected prosecutors in the country, is 
quoted as saying that Mr. Starr violated ``every rule in the book.''
  Some argue that the statute should be scrapped. I cannot agree, 
provided that we can prevent the abuses we have experienced in the 
past. We need a mechanism to address credible allegations of serious 
criminal wrongdoing by top executive branch officials. We have made 
improvements in the statute each of the three times it has been 
reauthorized over the past 20 years. We have required independent 
counsel to comply with established Justice Department policies and 
procedures; we have added standards of conduct for independent counsel; 
and we have added a whole new host of cost controls, including 
requiring new independent counsel to comply with the expenditure 
policies of the Justice Department with respect to salary levels, use 
of Government office space and travel.
  But we obviously have failed to foreclose opportunities for major 
excesses and clear abuses by independent counsel. Unless we can amend 
the law sufficiently to stop the excesses and abuses in the future--and 
I think we can do that--then the law should lapse. We need a law but 
only if the law ensures that individuals who conduct these 
investigations are highly qualified, nonpartisan attorneys with good 
judgment and common sense who are bound in by appropriate limits.
  The list of lessons learned over the last few years is long. We have 
tried to incorporate them into the bill we are introducing today.
  The first issues concern the appointment of the independent counsel. 
There was a high degree of dissatisfaction and concern with the choice 
of Kenneth Starr as independent counsel in the Whitewater matter. The 
investigation was already well underway with Special Counsel Bob Fiske 
who had been appointed by Attorney General Reno. Mr. Fiske was a well-
respected, veteran prosecutor who had also been a lifelong Republican. 
To remove any doubt about whether he could be appointed under the 
reauthorized independent counsel law as well, Congress had specifically 
authorized the special division of the court to reappoint him. But the 
three judge special division took it upon itself to terminate Mr. Fiske 
and replace him with Mr. Starr. Many of us challenged the court's 
decision at the time, arguing that Mr. Starr was a highly partisan 
person who could not bring the necessary appearance of independence to 
the job. At the time of his appointment he was linked to the Paula 
Jones case, having argued publicly against the President's position on 
immunity from civil suit. It turns out he had also conferred numerous 
times with attorneys for Paula Jones. He had served as the Finance Co-
Chairman of the Congressional campaign of a Republican in Alexandria, 
Virginia. At the time of Mr. Starr's appointment I wrote to the Special 
Division and urged them to reconsider their decision. ``The issue with 
respect to Mr. Starr,'' I said, ``. . . is that he lacks the necessary 
appearance of independence essential for public confidence in the 
process.'' Our concerns have proven to be true over time, to the point 
that Mr. Starr is perceived by the public as a partisan prosecutor.
  Our bill would make some very important changes in the current 
process in this regard. First, the special division of three judges who 
make independent counsel appointments under current law are appointed 
by the Chief Justice of the Supreme Court, and the court picks an 
independent counsel from a list of candidates developed by the special 
division from various recommendations over time. Our bill would require 
that the judges who serve on the special division court be picked by 
lottery from a pool of all of the federal appellate court judges. The 
Special Division would then be required to develop a list of qualified 
candidates to serve as independent counsels from a list of five 
candidates from each federal circuit selected by the chief judge of 
each circuit. Our bill would explicitly prohibit an independent counsel 
candidate from having an actual or apparent conflict of interest, and 
it would encourage the appointment of an individual with prosecutorial 
experience.
  Mr. Starr was not a prosecutor. In making a number of critically 
important judgment calls, Mr. Starr demonstrated a lack of 
understanding of the discipline a prosecutor needs in order to exercise 
the tremendous discretion and power of the office with fairness and 
justice. The bill would seek to remedy this by requiring the individual 
appointed as independent counsel to have prosecutorial experience ``to 
the extent practicable.''
  Many people expressed concern over the large and lucrative private 
practice Mr. Starr continued to have as independent counsel. We will 
never know if the investigation into the President could have been 
concluded much more expeditiously had Mr. Starr set aside his private 
practice from the inception of his appointment, but it's a reasonable 
possibility at least that it could have been. Independent counsel 
appointments are supposed to receive the highest priority and the 
public benefits from a timely resolution of the allegations. Our bill 
would require an independent counsel to devote full time to the 
investigation to bring it to a prompt conclusion, because we think 
doing so has important benefits to the public interest.
  Another area has to do with the scope of jurisdiction. This has been 
an area of great concern to some of us. That relates particularly to 
Mr. Starr's investigation, because he was originally appointed to 
investigate the Madison Guarantee Savings and Loan matter as it 
possibly related to President Clinton. But he ended up prosecuting a 
multitude of other matters. At one point his office even interviewed 
Arkansas State troopers about President Clinton's relationship with a 
number of different women when he was Governor. Moreover, Mr. Starr had 
his jurisdiction expanded to include Travelgate, Filegate, and the 
Monica Lewinsky matter. With each expansion, he looked more and more 
like a prosecutor pursuing a person instead of a prosecutor pursuing a 
crime.
  In the end he became Javert to President Clinton's Jean Valjean. Our 
bill limits the scope of the original grant of jurisdiction to only 
those matters that are ``directly'' related to an independent counsel's 
original jurisdiction, and eliminates the provision allowing an 
expansion of jurisdiction. Such matters would be investigated by the 
Department of Justice or, if appropriate,

[[Page S7774]]

a new independent counsel could be appointed. Only in this way can we 
prevent an independent counsel from becoming a permanent prosecutor of 
the President or any other covered official.
  Experience has also taught us that some of these independent counsel 
investigations develop huge staffs over time--far beyond those that 
would be available in an ordinary investigation. At one point, it was 
alleged that the Starr investigation was one of the top three 
investigations in terms of numbers of FBI agents in the country--
ranking right up there with the Unibomber and the World Trade Center 
bombing. Our bill would limit the number of detailees from the FBI and 
the Department of Justice to a number reasonably related to the number 
of staff the Justice Department or FBI normally assigns to a similar 
case.
  One of my greatest concerns in the past five years has been the 
failure of Mr. Starr to comply with both the spirit and, I believe, the 
letter of the law with respect to the requirement that an independent 
counsel follow established Department of Justice policies. I have made 
several floor statements identifying the particular instances in which 
I believe Mr. Starr has exceeded Justice Department policies, so I will 
not elaborate here. The current law requires an independent counsel to 
follow established Justice Department policies except to the extent to 
do so would undermine the purposes of the independent counsel law. That 
exception, which was intended to be a very narrow exception, has been 
used by Mr. Starr to justify a laundry list of questionable actions. 
The bill we are introducing today would eliminate that exception and 
provide that the only policy an independent counsel would be allowed to 
ignore would be that part of a policy or guideline that requires 
approval by a top Justice Department official. The bill provides that 
even in that situation, the independent counsel should consult with a 
top Justice Department official; he or she just isn't required to get 
that official's approval.

  The bill also creates a remedy for the situation where a target or 
witness in an independent counsel investigation believes the 
independent counsel is not complying with established Justice 
Department procedures. Currently, Justice Department policies are not 
enforceable in court, and several individuals who attempted to enforce 
compliance by Mr. Starr were turned away by the court. This bill would 
give such an individual an explicit right to first obtain an opinion by 
the Attorney General as to whether an independent counsel was complying 
with a specific Department of Justice policy, and if the Attorney 
General determines that the independent counsel is not, the bill allows 
the person to seek enforcement from the special court.
  Mr. Starr took the unusual step in his investigation to hire an 
outside ethics attorney. The bill requires an independent counsel to 
use as his or her ethics adviser the person already housed in the 
Department of Justice who is familiar with the ethical rules and 
regulations of a Justice Department Attorney--the designated agency 
ethics official or DAEO. This will help to keep the office of the 
independent counsel in tune with the ethical requirements of other 
investigative offices, giving greater assurance that Justice Department 
policies with respect to ethics issues will be followed.
  Great concern has developed over the cost of these independent 
counsel investigations. Mr. Smaltz spent some $20 million to have a 30 
count indictment rejected by a jury. Mr. Starr is likely to be the most 
expensive independent counsel ever--topping $50 million when all is 
said and done. These figures are shocking. The bill would address this 
problem by requiring an independent counsel to establish a budget with 
consultation of the Attorney General and the General Accounting Office 
to review the budget and submit a written analysis to Congress. We have 
tried with every reauthorization of this statute to obtain cost 
controls over the operations of the independent counsels. We've made 
some progress, but obviously more needs to be done. The bill also sets 
a two year presumptive limit on the work of an independent counsel and 
requires the independent counsel to affirmatively seek an extension for 
one year from the special court. By requiring an independent counsel to 
establish a budget and presumptively limiting the term of an 
independent counsel to two years, I believe we will impose a useful and 
meaningful cost control on these offices.
  A final concern that many of us have had with the independent counsel 
law is the provision regarding the referral of information to the House 
of Representatives regarding possible impeachable offenses. Mr. Starr's 
report to the House was not only shockingly and unnecessarily graphic, 
it was a brief for impeachment, far beyond the role envisioned by the 
independent counsel law. Mr. Starr's report also violated the fairness 
expected by the American people by presenting information on possible 
impeachable offenses in a biased and prejudicial manner. Under the 
Constitution, the House has sole responsibility to decide whether or 
not the President should be impeached. The independent counsel did not 
have a statutory responsibility to argue for impeachment. His 
responsibility was to forward ``information'' to the Congress that 
``may constitute grounds for an impeachment.'' Our bill would eliminate 
the provision with respect to impeachment, removing any obligation on 
the part of an independent counsel to take any initiative in this which 
is reserved exclusively to the House of Representatives by the 
Constitution.
  Finally, it is clear, obviously, that the independent counsel law is 
going to expire tomorrow. We are going to have the cooling off period 
that former Senator Howard Baker prescribed during our Governmental 
Affairs Committee hearings. I hope that after a reasonable cooling off 
period we will turn our attention to reestablishing a reasonable and 
fair procedure for the investigation of criminal allegations of our top 
officials and that the legislation we consider at that time contain the 
necessary protections against abuses of power. The bill we are 
introducing today is our best effort at drafting such legislation.
  I yield the floor.
  Mr. SPECTER. How much time remains?
  The PRESIDING OFFICER. The Senator from Pennsylvania has 7 minutes 48 
seconds.
  Mr. SPECTER. That is about a quarter of the time.
  I yield to my distinguish colleague from Maine, Senator Collins.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I am pleased to be a coauthor of the 
Independent Counsel Reform Act of 1999. At the outset, let me express 
my deep appreciation to Senators Specter, Lieberman, and Levin for the 
bipartisan spirit in which they approached the task of drafting this 
important legislation. Legislation of this complexity, which must 
balance innumerable competing but important interests, is never easy to 
achieve. This is particularly true when the legislation--as is the case 
in this bill--touches on political nerves that are still raw and fresh.
  We have worked very hard to achieve legislation that I believe truly 
serves the public interest while correcting the significant flaws in 
the current law.
  Supporting the reauthorization of the Independent Counsel Act is not 
likely to win this bipartisan group much applause from the Clinton 
administration or congressional partisans on either side of the aisle. 
Many of our colleagues say let it die. However, I caution my colleagues 
against short memories. We should not forget what prompted passage of 
this legislation more than two decades ago and its reauthorization 
three times since then.
  The Congress that passed the independent counsel law after Watergate 
wanted to assure the public that there were institutional guarantees 
that would never again allow the political leadership of the Justice 
Department to obstruct a criminal investigation of the President and 
the highest Government officials in the land. Their concern was not 
abstract or based on conjecture. The Justice Department, indeed, the 
Attorney General himself was implicated in the coverup of criminal acts 
by the incumbent administration.
  Do we think it couldn't happen again? Clearly, unfortunately, it 
could.
  The fact is, there will always be cases in which the Attorney General 
has an

[[Page S7775]]

actual or an apparent conflict of interest. The Attorney General simply 
cannot credibly conduct an extensive investigation and make 
prosecutorial decisions involving his or her boss, the President, the 
Vice President, or colleagues in the Cabinet. We must have an 
institutional mechanism that assures the public that allegations of 
serious criminal conduct by high level officials will be thoroughly 
investigated and, if necessary, prosecuted.
  Only by resorting to a prosecutor beyond the actual and perceived 
control of the administration can the public be assured that impartial 
justice extends to the most influential and powerful leaders of our 
land. Moreover, the independent counsel law fosters public confidence 
in the decision not to prosecute high level Government officials. A 
Government official who has been investigated but cleared by an 
independent counsel can justifiably and with credibility reclaim his or 
her public reputation. Political opponents cannot reasonably claim that 
the official escapes scrutiny and punishment by pulling political 
strings at the Justice Department.
  We should keep in mind that the majority of the independent counsel 
over the past two decades have conducted prompt and cost-effective 
investigations that resulted in decisions not to prosecute or indict 
the official accused of the criminal wrongdoing. Can there be any doubt 
that the political credibility of these decisions was enhanced 
significantly because the prosecutor had no political or financial 
connections to the target or other members of the administration? If we 
return these important decisions to the Justice Department, I fear we 
will encourage public skepticism of decisions not to prosecute. There 
will always be a cloud of suspicion tainting the decision.
  The need for the independent counsel mechanism is as evident today as 
it was back in 1978, when the law was first enacted. We have learned 
much from our experience with the law. It is flawed. It needs 
significant reform. That is just what the legislation we are 
introducing today would do.
  Though I strongly believe we should reauthorize the Independent 
Counsel Act, I am mindful of its many shortcomings. I participated in 
an excellent series of hearings chaired by my colleague from Tennessee, 
Senator Thompson, and virtually every witness agreed that the law must 
be changed.
  The legislation we are introducing today takes significant steps to 
rein in the length and the cost of independent counsel investigations. 
It limits all independent counsel investigations to a maximum of 2 
years and only allows the investigation to proceed for additional 1-
year periods upon a special showing to the court. It requires 
independent counsel to serve full time and to submit annual budgets to 
the General Accounting Office.
  We substantially limit the number of covered officials under the act, 
limiting coverage to only the President, the Vice President, the 
Cabinet, and the President's chief of staff. By limiting the coverage 
of the law, we have reserved the extraordinary remedy of an independent 
counsel for those high-level officials who will always, by virtue of 
their position, pose a conflict of interest to the Justice Department.
  We make many other changes. We heighten the threshold for the 
appointment of an independent counsel, and we make clear that an 
independent counsel must follow the prosecutorial guidelines of the 
Department of Justice.
  We also abolish the requirement for independent counsel to report 
impeachable conduct to the House of Representatives. We have come up 
with a bill that would preserve this important mechanism while 
correcting the serious flaws in the current act.
  Let me conclude by again recognizing the efforts of my distinguished 
colleagues and applaud them for their leadership on this important 
issue. My hope is that the rest of our colleagues will take advantage 
of this opportunity to remedy the weaknesses in the independent counsel 
law before the next unfortunate and inevitable crisis occurs and the 
public is left doubting whether it can have confidence that the laws of 
this country will be enforced impartially, without regard to rank or 
privilege.
  I thank the Chair.
  Mr. SPECTER. Mr. President, how much time remains?
  The PRESIDING OFFICER. Fifteen seconds.
  Mr. SPECTER. I thank my distinguished colleagues, Senator Collins, 
Senator Levin, and Senator Lieberman, for their fine presentations.
  Mr. President, I ask unanimous consent to have printed in the Record 
a summary of the independent counsel statute, a section-by-section 
summary of the Independent Counsel Reform Act of 1999, and the text of 
the bill.
  There being no objection, the referenced materials were ordered to be 
printed in the Record, as follows:

                                S. 1297

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Independent Counsel Reform 
     Act of 1999''.

     SEC. 2. INDEPENDENT COUNSEL STATUTE.

       Chapter 40 of title 28, United States Code, is amended to 
     read as follows:

                   ``CHAPTER 40--INDEPENDENT COUNSEL

``Sec.
``591. Applicability of provisions of this chapter.
``592. Preliminary investigation and application for appointment of an 
              independent counsel.
``593. Duties of the division of the court.
``594. Authority and duties of an independent counsel.
``595. Congressional oversight.
``596. Removal of an independent counsel; termination of office.
``597. Relationship with Department of Justice.
``598. Severability.
``599. Termination of effect of chapter.

     ``Sec. 591. Applicability of provisions of this chapter

       ``(a) Preliminary Investigation With Respect to Certain 
     Covered Persons.--The Attorney General shall conduct a 
     preliminary investigation in accordance with section 592 
     whenever the Attorney General receives information sufficient 
     to constitute grounds to investigate whether any person 
     described in subsection (b) may have violated any Federal 
     criminal law other than a violation classified as a Class B 
     or C misdemeanor or an infraction.
       ``(b) Persons to Whom Subsection (a) Applies.--The persons 
     referred to in subsection (a) are--
       ``(1) the President and Vice President;
       ``(2) any individual serving in a position listed in 
     section 5312 of title 5; and
       ``(3) the Chief of Staff to the President.
       ``(c) Examination of Information to Determine Need for 
     Preliminary Investigation.--
       ``(1) Factors to be considered.--In determining under 
     subsection (a) or section 592(c)(2) whether grounds to 
     investigate exist, the Attorney General shall consider only--
       ``(A) the specificity of the information received; and
       ``(B) the credibility of the source of the information.
       ``(2) Time period for making determination.--The Attorney 
     General shall determine whether grounds to investigate exist 
     not later than 30 days after the information is first 
     received. If within that 30-day period the Attorney General 
     determines that the information is not specific or is not 
     from a credible source, then the Attorney General shall close 
     the matter. If within that 30-day period the Attorney General 
     determines that the information is specific and from a 
     credible source, the Attorney General shall, upon making that 
     determination, commence a preliminary investigation with 
     respect to that information. If the Attorney General is 
     unable to determine, within that 30-day period, whether the 
     information is specific and from a credible source, the 
     Attorney General shall, at the end of that 30-day period, 
     commence a preliminary investigation with respect to that 
     information.
       ``(d) Recusal of Attorney General.--
       ``(1) When recusal is required.--
       ``(A) Involving the attorney general.--If information 
     received under this chapter involves the Attorney General, 
     the next most senior official in the Department of Justice 
     who is not also recused shall perform the duties assigned 
     under this chapter to the Attorney General.
       ``(B) Personal or financial relationship.--If information 
     received under this chapter involves a person with whom the 
     Attorney General has a personal or financial relationship, 
     the Attorney General shall recuse himself or herself by 
     designating the next most senior official in the Department 
     of Justice who is not also recused to perform the duties 
     assigned under this chapter to the Attorney General.
       ``(2) Requirements for recusal determination.--Before 
     personally making any other determination under this chapter 
     with respect to information received under this chapter, the 
     Attorney General shall determine under paragraph (1)(B) 
     whether recusal is necessary. The Attorney General shall set 
     forth this determination in writing, identify the facts 
     considered by the Attorney General, and set forth the reasons 
     for the recusal. The Attorney General shall file this

[[Page S7776]]

     determination with any notification or application submitted 
     to the division of the court under this chapter with respect 
     to that information.

     ``Sec. 592. Preliminary investigation and application for 
       appointment of an independent counsel

       ``(a) Conduct of Preliminary Investigation.--
       ``(1) In general.--A preliminary investigation conducted 
     under this chapter shall be of those matters as the Attorney 
     General considers appropriate in order to make a 
     determination, under subsection (b) or (c), with respect to 
     each potential violation, or allegation of a violation, of 
     criminal law. The Attorney General shall make that 
     determination not later than 120 days after the preliminary 
     investigation is commenced, except that, in the case of a 
     preliminary investigation commenced after a congressional 
     request under subsection (g), the Attorney General shall make 
     that determination not later than 120 days after the request 
     is received. The Attorney General shall promptly notify the 
     division of the court specified in section 593(a) of the 
     commencement of that preliminary investigation and the date 
     of commencement.
       ``(2) Limited authority of attorney general.--
       ``(A) In general.--In conducting preliminary investigations 
     under this chapter, the Attorney General shall have no 
     authority to plea bargain or grant immunity. The Attorney 
     General shall have the authority to convene grand juries and 
     issue subpoenas.
       ``(B) Not to be based of determinations.--The Attorney 
     General shall not base a determination under this chapter--
       ``(i) that information with respect to a violation of 
     criminal law by a person is not specific and from a credible 
     source upon a determination that that person lacked the state 
     of mind required for the violation of criminal law; or
       ``(ii) that there are no substantial grounds to believe 
     that further investigation is warranted, upon a determination 
     that that person lacked the state of mind required for the 
     criminal violation involved, unless there is a preponderance 
     of the evidence that the person lacked that state of mind.
       ``(3) Extension of time for preliminary investigation.--The 
     Attorney General may apply to the division of the court for a 
     single extension, for a period of not more than 90 days, of 
     the 120-day period referred to in paragraph (1). The division 
     of the court may, upon a showing of good cause, grant that 
     extension.
       ``(b) Determination That Further Investigation Not 
     Warranted.--
       ``(1) Notification of division of the court.--If the 
     Attorney General, upon completion of a preliminary 
     investigation under this chapter, determines that there are 
     no substantial grounds to believe that further investigation 
     is warranted, the Attorney General shall promptly so notify 
     the division of the court, and the division of the court 
     shall have no power to appoint an independent counsel with 
     respect to the matters involved.
       ``(2) Form of notification.--Notification under paragraph 
     (1) shall contain a summary of the information received and a 
     summary of the results of the preliminary investigation.
       ``(c) Determination That Further Investigation Is 
     Warranted.--
       ``(1) Application for appointment of independent counsel.--
     The Attorney General shall apply to the division of the court 
     for the appointment of an independent counsel if--
       ``(A) the Attorney General, upon completion of a 
     preliminary investigation under this chapter, determines that 
     there are substantial grounds to believe that further 
     investigation is warranted; or
       ``(B) the 120-day period referred to in subsection (a)(1), 
     and any extension granted under subsection (a)(3), have 
     elapsed and the Attorney General has not filed a notification 
     with the division of the court under subsection (b)(1).

     In determining under this chapter whether there are 
     substantial grounds to believe that further investigation is 
     warranted, the Attorney General shall comply with the written 
     or other established policies of the Department of Justice 
     with respect to the conduct of criminal investigations.
       ``(2) Receipt of additional information.--If, after 
     submitting a notification under subsection (b)(1), the 
     Attorney General receives additional information sufficient 
     to constitute grounds to investigate the matters to which 
     that notification related, the Attorney General shall--
       ``(A) conduct such additional preliminary investigation as 
     the Attorney General considers appropriate for a period of 
     not more than 120 days after the date on which that 
     additional information is received; and
       ``(B) otherwise comply with the provisions of this section 
     with respect to that additional preliminary investigation to 
     the same extent as any other preliminary investigation under 
     this section.
       ``(d) Contents of Application.--Any application for the 
     appointment of an independent counsel under this chapter 
     shall contain sufficient information to assist the division 
     of the court in selecting an independent counsel and in 
     defining that independent counsel's prosecutorial 
     jurisdiction so that the independent counsel has adequate 
     authority to fully investigate and prosecute the subject 
     matter and all matters directly related to that subject 
     matter.
       ``(e) Disclosure of Information.--Except as otherwise 
     provided in this chapter or as is deemed necessary for law 
     enforcement purposes, no officer or employee of the 
     Department of Justice or an office of independent counsel 
     may, without leave of the division of the court, disclose to 
     any individual outside the Department of Justice or that 
     office any notification, application, or any other document, 
     materials, or memorandum supplied to the division of the 
     court under this chapter. Nothing in this chapter shall be 
     construed as authorizing the withholding of information from 
     the Congress.
       ``(f) Limitation on Judicial Review.--The Attorney 
     General's determination under this chapter to apply to the 
     division of the court for the appointment of an independent 
     counsel shall not be reviewable in any court.
       ``(g) Congressional Request.--
       ``(1) By judiciary committee or members thereof.--The 
     Committee on the Judiciary of either House of the Congress, 
     or a majority of majority party members or a majority of all 
     nonmajority party members of either such committee, may 
     request in writing that the Attorney General apply for the 
     appointment of an independent counsel.

       ``(2) Report by attorney general pursuant to request.--Not 
     later than 30 days after the receipt of a request under 
     paragraph (1), the Attorney General shall submit, to the 
     committee making the request, or to the committee on which 
     the persons making the request serve, a report on whether the 
     Attorney General has begun or will begin a preliminary 
     investigation under this chapter of the matters with respect 
     to which the request is made, in accordance with section 
     591(a). The report shall set forth the reasons for the 
     Attorney General's decision regarding the preliminary 
     investigation as it relates to each of the matters with 
     respect to which the congressional request is made. If there 
     is such a preliminary investigation, the report shall include 
     the date on which the preliminary investigation began or will 
     begin.
       ``(3) Submission of information in response to 
     congressional request.--At the same time as any notification, 
     application, or any other document, material, or memorandum 
     is supplied to the division of the court pursuant to this 
     section with respect to a preliminary investigation of any 
     matter with respect to which a request is made under 
     paragraph (1), that notification, application, or other 
     document, material, or memorandum shall be supplied to the 
     committee making the request, or to the committee on which 
     the persons making the request serve. If no application for 
     the appointment of an independent counsel is made to the 
     division of the court under this section pursuant to such a 
     preliminary investigation, the Attorney General shall submit 
     a report to that committee stating the reasons why the 
     application was not made, addressing each matter with respect 
     to which the congressional request was made.
       ``(4) Disclosure of information.--Any report, notification, 
     application, or other document, material, or memorandum 
     supplied to a committee under this subsection shall not be 
     revealed to any third party, except that the committee may, 
     either on its own initiative or upon the request of the 
     Attorney General, make public such portion or portions of 
     that report, notification, application, document, material, 
     or memorandum as will not in the committee's judgment 
     prejudice the rights of any individual.

     ``Sec. 593. Duties of the division of the court

       ``(a) Reference to Division of the Court.--The division of 
     the court to which this chapter refers is the division 
     established under section 49 of this title.
       ``(b) Appointment and Jurisdiction of Independent 
     Counsel.--
       ``(1) Authority.--Upon receipt of an application under 
     section 592(c), the division of the court shall appoint an 
     appropriate independent counsel and define the independent 
     counsel's prosecutorial jurisdiction. The appointment shall 
     be made from a list of candidates comprised of 5 individuals 
     recommended by the chief judge of each Federal circuit and 
     forwarded by January 15 of each year to the division of the 
     court.
       ``(2) Qualifications of independent counsel.--The division 
     of the court shall appoint as independent counsel an 
     individual who--
       ``(A) has appropriate experience, including, to the extent 
     practicable, prosecutorial experience and who has no actual 
     or apparent personal, financial, or political conflict of 
     interest;
       ``(B) will conduct the investigation on a full-time basis 
     and in a prompt, responsible, and cost-effective manner; and
       ``(C) does not hold any office of profit or trust under the 
     United States.
       ``(3) Scope of prosecutorial jurisdiction.--
       ``(A) In general.--In defining the independent counsel's 
     prosecutorial jurisdiction under this chapter, the division 
     of the court shall assure that the independent counsel has 
     adequate authority to fully investigate and prosecute--
       ``(i) the subject matter with respect to which the Attorney 
     General has requested the appointment of the independent 
     counsel; and
       ``(ii) all matters that are directly related to the 
     independent counsel's prosecutorial jurisdiction and the 
     proper investigation and prosecution of the subject matter of 
     such jurisdiction.

[[Page S7777]]

       ``(B) Directly related.--In this paragraph, the term 
     `directly related matters' includes Federal crimes, other 
     than those classified as Class B or C misdemeanors or 
     infractions, that impede the investigation and prosecution, 
     such as perjury, obstruction of justice, destruction of 
     evidence, and intimidation of witnesses.
       ``(4) Disclosure of identity and prosecutorial 
     jurisdiction.--An independent counsel's identity and 
     prosecutorial jurisdiction may not be made public except upon 
     the request of the Attorney General or upon a determination 
     of the division of the court that disclosure of the identity 
     and prosecutorial jurisdiction of that independent counsel 
     would be in the best interests of justice. In any event, the 
     identity and prosecutorial jurisdiction of the independent 
     counsel shall be made public when any indictment is returned, 
     or any criminal information is filed, pursuant to the 
     independent counsel's investigation.
       ``(c) Return for Further Explanation.--Upon receipt of a 
     notification under section 592 from the Attorney General that 
     there are no substantial grounds to believe that further 
     investigation is warranted with respect to information 
     received under this chapter, the division of the court shall 
     have no authority to overrule this determination but may 
     return the matter to the Attorney General for further 
     explanation of the reasons for that determination.
       ``(d) Vacancies.--If a vacancy in office arises by reason 
     of the resignation, death, or removal of an independent 
     counsel, the division of the court shall appoint an 
     independent counsel to complete the work of the independent 
     counsel whose resignation, death, or removal caused the 
     vacancy, except that in the case of a vacancy arising by 
     reason of the removal of an independent counsel, the division 
     of the court may appoint an acting independent counsel to 
     serve until any judicial review of the removal is completed.
       ``(e) Attorneys' Fees.--
       ``(1) Award of fees.--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 that 
     individual pursuant to the investigation, award reimbursement 
     for those reasonable attorneys' fees incurred by the 
     individual during the investigation which would not have been 
     incurred but for the requirements of this chapter. The 
     division of the court shall notify the independent counsel 
     who conducted the investigation and the Attorney General of 
     any request for attorneys' fees under this subsection.
       ``(2) Evaluation of fees.--The division of the court shall 
     direct the independent counsel and the Attorney General to 
     file a written evaluation of any request for attorneys' fees 
     under this subsection, addressing--
       ``(A) the sufficiency of the documentation;
       ``(B) the need or justification for the underlying item;
       ``(C) whether the underlying item would have been incurred 
     but for the requirements of this chapter; and
       ``(D) the reasonableness of the amount of money requested.
       ``(f) Disclosure of Information.--The division of the court 
     may, subject to section 594(h)(2), allow the disclosure of 
     any notification, application, or any other document, 
     material, or memorandum supplied to the division of the court 
     under this chapter.
       ``(g) Amicus Curiae Briefs.--When presented with 
     significant legal issues, the division of the court may 
     disclose sufficient information about the issues to permit 
     the filing of timely amicus curiae briefs.

     ``Sec. 594. Authority and duties of an independent counsel

       ``(a) Authorities.--Notwithstanding any other provision of 
     law, an independent counsel appointed under this chapter 
     shall have, with respect to all matters in that independent 
     counsel's prosecutorial jurisdiction established under this 
     chapter, full power and independent authority to exercise all 
     investigative and prosecutorial functions and powers of the 
     Department of Justice, the Attorney General, and any other 
     officer or employee of the Department of Justice, except that 
     the Attorney General shall exercise direction or control as 
     to those matters that specifically require the Attorney 
     General's personal action under section 2516 of title 18. 
     Such investigative and prosecutorial functions and powers 
     shall include--
       ``(1) conducting proceedings before grand juries and other 
     investigations;
       ``(2) participating in court proceedings and engaging in 
     any litigation, including civil and criminal matters, that 
     the independent counsel considers necessary;
       ``(3) appealing any decision of a court in any case or 
     proceeding in which the independent counsel participates in 
     an official capacity;
       ``(4) reviewing all documentary evidence available from any 
     source;
       ``(5) determining whether to contest the assertion of any 
     testimonial privilege;
       ``(6) receiving appropriate national security clearances 
     and, if necessary, contesting in court (including, where 
     appropriate, participating in in camera proceedings) any 
     claim of privilege or attempt to withhold evidence on grounds 
     of national security;
       ``(7) making applications to any Federal court for a grant 
     of immunity to any witness, consistent with applicable 
     statutory requirements, or for warrants, subpoenas, or other 
     court orders, and, for purposes of sections 6003, 6004, and 
     6005 of title 18, exercising the authority vested in a United 
     States attorney or the Attorney General;
       ``(8) inspecting, obtaining, or using the original or a 
     copy of any tax return, in accordance with the applicable 
     statutes and regulations, and, for purposes of section 6103 
     of the Internal Revenue Code of 1986 and the regulations 
     issued thereunder, exercising the powers vested in a United 
     States attorney or the Attorney General;
       ``(9) initiating and conducting prosecutions in any court 
     of competent jurisdiction, framing and signing indictments, 
     filing informations, and handling all aspects of any case, in 
     the name of the United States; and
       ``(10) consulting with the United States attorney for the 
     district in which any violation of law with respect to which 
     the independent counsel is appointed was alleged to have 
     occurred.
       ``(b) Compensation.--
       ``(1) In general.--An independent counsel appointed under 
     this chapter shall receive compensation at the annual rate of 
     basic pay payable for level IV of the Executive Schedule 
     under section 5315 of title 5.
       ``(2) Travel expenses.--Except as provided in paragraph 
     (3), an independent counsel and persons appointed under 
     subsection (c) shall be entitled to the payment of travel 
     expenses as provided by subchapter I of chapter 57 of title 
     5, United States Code, including travel, per diem, and 
     subsistence expenses in accordance with section 5703 of title 
     5.
       ``(3) Travel to primary office.--
       ``(A) In general.--After 1 year of service under this 
     chapter, an independent counsel and persons appointed under 
     subsection (c) shall not be entitled to the payment of 
     travel, per diem, or subsistence expenses under subchapter I 
     of chapter 57 of title 5, United States Code, for the purpose 
     of commuting to or from the city in which the primary office 
     of the independent counsel or person is located. The 1-year 
     period may be extended for successive 6-month periods if the 
     independent counsel and the division of the court certify 
     that the payment is in the public interest to carry out the 
     purposes of this chapter.
       ``(B) Relevant factors.--In making any certification under 
     this paragraph with respect to travel and subsistence 
     expenses of an independent counsel or person appointed under 
     subsection (c), that employee shall consider, among other 
     relevant factors--
       ``(i) the cost to the Government of reimbursing those 
     travel and subsistence expenses;
       ``(ii) the period of time for which the independent counsel 
     anticipates that the activities of the independent counsel or 
     person, as the case may be, will continue;
       ``(iii) the personal and financial burdens on the 
     independent counsel or person, as the case may be, of 
     relocating so that the travel and subsistence expenses would 
     not be incurred; and
       ``(iv) the burdens associated with appointing a new 
     independent counsel, or appointing another person under 
     subsection (c), to replace the individual involved who is 
     unable or unwilling to so relocate.
       ``(c) Additional Personnel.--For the purposes of carrying 
     out the duties of an office of independent counsel, an 
     independent counsel may appoint, fix the compensation, and 
     assign the duties of such employees as such independent 
     counsel considers necessary (including investigators, 
     attorneys, and part-time consultants). The positions of all 
     such employees are exempted from the competitive service. 
     Such employees shall be compensated at levels not to exceed 
     those payable for comparable positions in the Office of 
     United States Attorney for the District of Columbia under 
     sections 548 and 550, but in no event shall any such employee 
     be compensated at a rate greater than the rate of basic pay 
     payable for level ES-4 of the Senior Executive Service 
     Schedule under section 5382 of title 5, as adjusted for the 
     District of Columbia under section 5304 of that title 
     regardless of the locality in which an employee is employed.
       ``(d) Assistance of Department of Justice.--
       ``(1) In carrying out functions.--An independent counsel 
     may request assistance from the Department of Justice in 
     carrying out the functions of the independent counsel, and 
     the Department of Justice shall provide that assistance, 
     which may include access to any records, files, or other 
     materials relevant to matters within that independent 
     counsel's prosecutorial jurisdiction, and the use of the 
     resources and personnel necessary to perform that independent 
     counsel's duties. At the request of an independent counsel, 
     prosecutors, administrative personnel, and other employees of 
     the Department of Justice may be detailed to the staff of the 
     independent counsel to the extent the number of staff so 
     detailed is reasonably related to the number of staff 
     ordinarily assigned by the Department to conduct an 
     investigation of similar size and complexity.
       ``(2) Payment of and reports on expenditures of independent 
     counsel.--The Department of Justice shall pay all costs 
     relating to the establishment and operation of any office of 
     independent counsel. The Attorney General shall submit to the 
     Congress, not later than 30 days after the end of each fiscal 
     year, a report on amounts paid during that fiscal year for 
     expenses of investigations and prosecutions by independent 
     counsel. Each such report shall include a statement of all 
     payments made for activities of independent counsel but may 
     not reveal the

[[Page S7778]]

     identity or prosecutorial jurisdiction of any independent 
     counsel which has not been disclosed under section 593(b)(4).
       ``(e) Referral of Directly Related Matters to an 
     Independent Counsel.--An independent counsel may ask the 
     Attorney General or the division of the court to refer to the 
     independent counsel only such matters that are directly 
     related to the independent counsel's prosecutorial 
     jurisdiction, and the Attorney General or the division of the 
     court, as the case may be, may refer such matters. If the 
     Attorney General refers a matter to an independent counsel on 
     the Attorney General's own initiative, the independent 
     counsel may accept that referral only if the matter directly 
     relates to the independent counsel's prosecutorial 
     jurisdiction. If the Attorney General refers any matter to 
     the independent counsel pursuant to the independent counsel's 
     request, or if the independent counsel accepts a referral 
     made by the Attorney General on the Attorney General's own 
     initiative, the independent counsel shall so notify the 
     division of the court.
       ``(f) Compliance With Policies of the Department of 
     Justice.--
       ``(1) In general.--An independent counsel shall comply with 
     the written or other established policies of the Department 
     of Justice respecting enforcement of the criminal laws except 
     when that policy requires the specific approval of the 
     Attorney General or another Department of Justice official. 
     If a policy requires the approval of the Attorney General or 
     other Department of Justice official, an independent counsel 
     is encouraged to consult with the Attorney General or other 
     official. To identify and understand these policies and 
     policies under subsection (l)(1)(B), the independent counsel 
     shall consult with the Department of Justice.
       ``(2) National security.--An independent counsel shall 
     comply with guidelines and procedures used by the Department 
     in the handling and use of classified material.
       ``(3) Relief from a violation of policies.--
       ``(A) In general.--A person who is a target, witness, or 
     defendant in, or otherwise directly affected by, an 
     investigation by an independent counsel and who has reason to 
     believe that the independent counsel is violating a written 
     policy of the Department of Justice material to the 
     independent counsel's investigation, may ask the Attorney 
     General to determine whether the independent counsel has 
     violated that policy. The Attorney General shall respond in 
     writing within 30 days.
       ``(B) Relief.--If the Attorney General determines that the 
     independent counsel has violated a written policy of the 
     Department of Justice material to the investigation by the 
     independent counsel pursuant to subparagraph (A), the 
     Attorney General may ask the division of the court to order 
     the independent counsel to comply with that policy, and the 
     division of the court may order appropriate relief.
       ``(g) Dismissal of Matters.--The independent counsel shall 
     have full authority to dismiss matters within the independent 
     counsel's prosecutorial jurisdiction without conducting an 
     investigation or at any subsequent time before prosecution, 
     if to do so would be consistent with the written or other 
     established policies of the Department of Justice with 
     respect to the enforcement of criminal laws.
       ``(h) Reports by Independent Counsel.--
       ``(1) Required reports.--An independent counsel shall--
       ``(A) file with the division of the court, with respect to 
     the 6-month period beginning on the date of his or her 
     appointment, and with respect to each 6-month period 
     thereafter until the office of that independent counsel 
     terminates, a report which identifies and explains major 
     expenses, and summarizes all other expenses, incurred by that 
     office during the 6-month period with respect to which the 
     report is filed, and estimates future expenses of that 
     office; and
       ``(B) before the termination of the independent counsel's 
     office under section 596(b), file a final report with the 
     division of the court, setting forth only the following:
       ``(i) the jurisdiction of the independent counsel's 
     investigation;
       ``(ii) a list of indictments brought by the independent 
     counsel and the disposition of each indictment, including any 
     verdicts, pleas, convictions, pardons, and sentences; and
       ``(iii) a summary of the expenses of the independent 
     counsel's office.
       ``(2) Disclosure of information in reports.--The division 
     of the court may release to the Congress, the public, or any 
     appropriate person, those portions of a report made under 
     this subsection as the division of the court considers 
     appropriate. The division of the court shall make those 
     orders as are appropriate to protect the rights of any 
     individual named in that report and to prevent undue 
     interference with any pending prosecution. The division of 
     the court may make any portion of a final report filed under 
     paragraph (1)(B) available to any individual named in that 
     report for the purposes of receiving within a time limit set 
     by the division of the court any comments or factual 
     information that the individual may submit. Such comments and 
     factual information, in whole or in part, may, in the 
     discretion of the division of the court, be included as an 
     appendix to the final report.
       ``(3) Publication of reports.--At the request of an 
     independent counsel, the Public Printer shall cause to be 
     printed any report previously released to the public under 
     paragraph (2). The independent counsel shall certify the 
     number of copies necessary for the public, and the Public 
     Printer shall place the cost of the required number to the 
     debit of the independent counsel. Additional copies shall be 
     made available to the public through the depository library 
     program and Superintendent of Documents sales program 
     pursuant to sections 1702 and 1903 of title 44.
       ``(i) Independence From Department of Justice.--Each 
     independent counsel appointed under this chapter, and the 
     persons appointed by that independent counsel under 
     subsection (c), are employees of the Department of Justice 
     for purposes of sections 202 through 209 of title 18.
       ``(j) Standards of Conduct Applicable to Independent 
     Counsel, Persons Serving in the Office of an Independent 
     Counsel, and Their Law Firms.--
       ``(1) Restrictions on employment while independent counsel 
     and appointees are serving.--
       ``(A) Independent counsel.--During the period in which an 
     independent counsel is serving under this chapter--
       ``(i) that independent counsel shall have no other paid 
     employment; and
       ``(ii) any person associated with a firm with which that 
     independent counsel is associated may not represent in any 
     matter any person involved in any investigation or 
     prosecution under this chapter.
       ``(B) Other persons.--During the period in which any person 
     appointed by an independent counsel under subsection (c) is 
     serving in the office of independent counsel, that person may 
     not represent in any matter any person involved in any 
     investigation or prosecution under this chapter.
       ``(2) Post employment restrictions on independent counsel 
     and appointees.--Each independent counsel and each person 
     appointed by that independent counsel under subsection (c) 
     may not--
       ``(A) for 3 years following the termination of the service 
     under this chapter of that independent counsel or appointed 
     person, as the case may be, represent any person in any 
     matter if that individual was the subject of an investigation 
     or prosecution under this chapter that was conducted by that 
     independent counsel; or
       ``(B) for 1 year following the termination of the service 
     under this chapter of that independent counsel or appointed 
     person, as the case may be, represent any person in any 
     matter involving any investigation or prosecution under this 
     chapter.
       ``(3) One-year ban on representation by members of firms of 
     independent counsel.--Any person who is associated with a 
     firm with which an independent counsel is associated or 
     becomes associated after termination of the service of that 
     independent counsel under this chapter may not, for 1 year 
     following that termination, represent any person in any 
     matter involving any investigation or prosecution under this 
     chapter.
       ``(4) Definitions.--For purposes of this subsection--
       ``(A) the term `firm' means a law firm whether organized as 
     a partnership or corporation; and
       ``(B) a person is `associated' with a firm if that person 
     is an officer, director, partner, or other member or employee 
     of that firm.
       ``(5) Enforcement.--The Attorney General and the Director 
     of the Office of Government Ethics have authority to enforce 
     compliance with this subsection. The designated agency ethics 
     official for the Department of Justice shall be the ethics 
     adviser for the independent counsel and employees of the 
     independent counsel.
       ``(k) Custody of Records of an Independent Counsel.--
       ``(1) Transfer of records.--Upon termination of the office 
     of an independent counsel, that independent counsel shall 
     transfer to the Archivist of the United States all records 
     which have been created or received by that office. Before 
     this transfer, the independent counsel shall clearly identify 
     which of these records are subject to rule 6(e) of the 
     Federal Rules of Criminal Procedure as grand jury materials 
     and which of these records have been classified as national 
     security information. Any records which were compiled by an 
     independent counsel and, upon termination of the independent 
     counsel's office, were stored with the division of the court 
     or elsewhere before the enactment of the Independent Counsel 
     Reauthorization Act of 1987, shall also be transferred to the 
     Archivist of the United States by the division of the court 
     or the person in possession of those records.
       ``(2) Maintenance, use, and disposal of records.--Records 
     transferred to the Archivist under this chapter shall be 
     maintained, used, and disposed of in accordance with chapters 
     21, 29, and 33 of title 44.
       ``(3) Access to records.--
       ``(A) In general.--Subject to paragraph (4), access to the 
     records transferred to the Archivist under this chapter shall 
     be governed by section 552 of title 5.
       ``(B) Access by department of justice.--The Archivist 
     shall, upon written application by the Attorney General, 
     disclose any such records to the Department of Justice for 
     purposes of an ongoing law enforcement investigation or court 
     proceeding, except that, in the case of grand jury materials, 
     those records shall be so disclosed only by order of the 
     court of jurisdiction under rule 6(e) of the Federal Rules of 
     Criminal Procedure.

[[Page S7779]]

       ``(C) Exception.--Notwithstanding any restriction on access 
     imposed by law, the Archivist and persons employed by the 
     National Archives and Records Administration who are engaged 
     in the performance of normal archival work shall be permitted 
     access to the records transferred to the Archivist under this 
     chapter.
       ``(4) Records provided by congress.--Records of an 
     investigation conducted by a committee of the House of 
     Representatives or the Senate which are provided to an 
     independent counsel to assist in an investigation or 
     prosecution conducted by that independent counsel--
       ``(A) shall be maintained as a separate body of records 
     within the records of the independent counsel; and
       ``(B) shall, after the records have been transferred to the 
     Archivist under this chapter, be made available, except as 
     provided in paragraph (3) (B) and (C), in accordance with the 
     rules governing release of the records of the House of 
     Congress that provided the records to the independent 
     counsel.
     Subparagraph (B) shall not apply to those records which have 
     been surrendered pursuant to grand jury or court proceedings.
       ``(l) Cost and Administrative Support.--
       ``(1) Cost controls.--
       ``(A) In general.--An independent counsel shall--
       ``(i) conduct all activities with due regard for expense;
       ``(ii) authorize only reasonable and lawful expenditures; 
     and
       ``(iii) promptly, upon taking office, assign to a specific 
     employee the duty of certifying that expenditures of the 
     independent counsel are reasonable and made in accordance 
     with law.
       ``(B) Liability for invalid certification.--An employee 
     making a certification under subparagraph (A)(iii) shall be 
     liable for an invalid certification to the same extent as a 
     certifying official certifying a voucher is liable under 
     section 3528 of title 31.
       ``(C) Department of justice policies.--An independent 
     counsel shall comply with the established policies of the 
     Department of Justice respecting expenditures of funds.
       ``(2) Budget.--The independent counsel, after consulting 
     with the Attorney General, shall, within 90 days of 
     appointment, submit a budget for the first year of the 
     investigation and, on the anniversary of the appointment, for 
     each year thereafter to the Attorney General and the General 
     Accounting Office. The General Accounting Office shall review 
     the budget and submit a written appraisal of the budget to 
     the independent counsel and the Committees on Governmental 
     Affairs and Appropriations of the Senate and the Committees 
     on the Judiciary and Appropriations of the House of 
     Representatives.
       ``(3) Administrative support.--The Director of the 
     Administrative Office of the United States Courts shall 
     provide administrative support and guidance to each 
     independent counsel. No officer or employee of the 
     Administrative Office of the United States Courts shall 
     disclose information related to an independent counsel's 
     expenditures, personnel, or administrative acts or 
     arrangements without the authorization of the independent 
     counsel.
       ``(4) Office space.--The Administrator of General Services, 
     in consultation with the Director of the Administrative 
     Office of the United States Courts, shall promptly provide 
     appropriate office space for each independent counsel. The 
     office space shall be within a Federal building unless the 
     Administrator of General Services determines that other 
     arrangements would cost less. Until the office space is 
     provided, the Administrative Office of the United States 
     Courts shall provide newly appointed independent counsels 
     immediately upon appointment with appropriate, temporary 
     office space, equipment, and supplies.
       ``(m) Expedited Judicial Consideration and Review.--It 
     shall be the duty of the courts of the United States to 
     advance on the docket and to expedite to the greatest extent 
     possible the disposition of matters relating to an 
     investigation and prosecution by an independent counsel under 
     this chapter consistent with the purposes of this chapter.

     ``Sec. 595. Congressional oversight

       ``(a) Oversight of Conduct of Independent Counsel.--
       ``(1) Congressional oversight.--The appropriate committees 
     of the Congress shall have oversight jurisdiction with 
     respect to the official conduct of any independent counsel 
     appointed under this chapter, and the independent counsel 
     shall have the duty to cooperate with the exercise of that 
     oversight jurisdiction.
       ``(2) Reports to congress.--An independent counsel 
     appointed under this chapter shall submit to the Congress 
     annually a report on the activities of the independent 
     counsel, including a description of the progress of any 
     investigation or prosecution conducted by the independent 
     counsel. The report may omit any matter that in the judgment 
     of the independent counsel should be kept confidential, but 
     shall provide information adequate to justify the 
     expenditures that the office of the independent counsel has 
     made.
       ``(b) Oversight of Conduct of Attorney General.--Within 15 
     days after receiving an inquiry about a particular case under 
     this chapter, which is a matter of public knowledge, from a 
     committee of the Congress with jurisdiction over this 
     chapter, the Attorney General shall provide the following 
     information to that committee with respect to the case:
       ``(1) When the information about the case was received.
       ``(2) Whether a preliminary investigation is being 
     conducted, and if so, the date it began.
       ``(3) Whether an application for the appointment of an 
     independent counsel or a notification that further 
     investigation is not warranted has been filed with the 
     division of the court, and if so, the date of that filing.

     ``Sec. 596. Removal of an independent counsel; termination of 
       office

       ``(a) Removal; Report on Removal.--
       ``(1) Grounds for removal.--
       ``(A) In general.--An independent counsel appointed under 
     this chapter may be removed from office, other than by 
     impeachment and conviction, only by the personal action of 
     the Attorney General and only for good cause, physical or 
     mental disability (if not prohibited by law protecting 
     persons from discrimination on the basis of such a 
     disability), or any other condition that impairs the 
     performance of that independent counsel's duties.
       ``(B) Good cause.--In this paragraph, the term `good cause' 
     includes--
       ``(i) a knowing and material failure to comply with written 
     Department of Justice policies relevant to the conduct of a 
     criminal investigation; and
       ``(ii) an actual personal, financial, or political conflict 
     of interest.
       ``(2) Report to division of the court and congress.--If an 
     independent counsel is removed from office, the Attorney 
     General shall promptly submit to the division of the court 
     and the Committees on the Judiciary of the Senate and the 
     House of Representatives a report specifying the facts found 
     and the ultimate grounds for the removal. The committees 
     shall make available to the public that report, except that 
     each committee may, if necessary to protect the rights of any 
     individual named in the report or to prevent undue 
     interference with any pending prosecution, postpone or 
     refrain from publishing any or all of the report. The 
     division of the court may release any or all of the report in 
     accordance with section 594(h)(2).
       ``(3) Judicial review of removal.--An independent counsel 
     removed from office may obtain judicial review of the removal 
     in a civil action commenced in the United States District 
     Court for the District of Columbia. A member of the division 
     of the court may not hear or determine any such civil action 
     or any appeal of a decision in any such civil action. The 
     independent counsel may be reinstated or granted other 
     appropriate relief by order of the court.
       ``(b) Termination of Office.--
       ``(1) Termination by action of independent counsel.--An 
     office of independent counsel shall terminate when--
       ``(A) the independent counsel notifies the Attorney General 
     that the investigation of all matters within the 
     prosecutorial jurisdiction of the independent counsel or 
     accepted by the independent counsel under section 594(e), and 
     any resulting prosecutions, have been completed or so 
     substantially completed that it would be appropriate for the 
     Department of Justice to complete those investigations and 
     prosecutions; and
       ``(B) the independent counsel files a final report in 
     compliance with section 594(h)(1)(B).
       ``(2) Termination by division of the court.--The division 
     of the court, either on its own motion or upon the request of 
     the Attorney General, may terminate an office of independent 
     counsel at any time, on the ground that the investigation of 
     all matters within the prosecutorial jurisdiction of the 
     independent counsel or accepted by the independent counsel 
     under section 594(e), and any resulting prosecutions, have 
     been completed or so substantially completed that it would be 
     appropriate for the Department of Justice to complete those 
     investigations and prosecutions. At the time of that 
     termination, the independent counsel shall file the final 
     report required by section 594(h)(1)(B). If the Attorney 
     General has not made a request under this paragraph, the 
     division of the court shall determine on its own motion 
     whether termination is appropriate under this paragraph no 
     later than 2 years after the appointment of an independent 
     counsel.
       ``(3) Termination after 2 years.--
       ``(A) General rule.--Except as provided in subparagraph 
     (B), the term of an independent counsel shall terminate at 
     the expiration of 2 years after the date of appointment of 
     the independent counsel and any matters under investigation 
     by the independent counsel shall be transferred to the 
     Attorney General.
       ``(B) Exceptions.--
       ``(i) Good cause.--An independent counsel may petition the 
     division of the court to extend the investigation of the 
     independent counsel for up to 1 year for good cause. The 
     division of the court shall determine whether the grant of 
     such an extension is warranted and determine the length of 
     each extension.
       ``(ii) Dilatory tactics.--If the investigation of an 
     independent counsel was delayed by dilatory tactics by 
     persons that could provide evidence that would significantly 
     assist the investigation, an independent counsel may petition 
     the division of the court to extend the investigation of the 
     independent counsel for an additional period of time equal to 
     the amount of time lost by the dilatory tactics. If the 
     division of the court finds that dilatory tactics did delay 
     the investigation, the division of the court shall extend the 
     investigation for a period equal to the delay.

[[Page S7780]]

       ``(c) Audits.--
       ``(1) In general.--On or before June 30 of each year, an 
     independent counsel shall prepare a statement of expenditures 
     for the 6 months that ended on the immediately preceding 
     March 31. On or before December 31 of each year, an 
     independent counsel shall prepare a statement of expenditures 
     for the fiscal year that ended on the immediately preceding 
     September 30. An independent counsel whose office is 
     terminated prior to the end of the fiscal year shall prepare 
     a statement of expenditures on or before the date that is 90 
     days after the date on which the office is terminated.
       ``(2) Comptroller general review.--The Comptroller General 
     shall--
       ``(A) conduct a financial review of a mid-year statement 
     and a financial audit of a year-end statement and statement 
     on termination; and
       ``(B) report the results to the Committee on the Judiciary, 
     Committee on Governmental Affairs, and Committee on 
     Appropriations of the Senate and the Committee on the 
     Judiciary, Committee on Government Reform, and Committee on 
     Appropriations of the House of Representatives not later than 
     90 days following the submission of each statement.

     ``Sec. 597. Relationship with Department of Justice

       ``(a) Suspension of Other Investigations and Proceedings.--
     Whenever a matter is in the prosecutorial jurisdiction of an 
     independent counsel or has been accepted by an independent 
     counsel under section 594(e), the Department of Justice, the 
     Attorney General, and all other officers and employees of the 
     Department of Justice shall suspend all investigations and 
     proceedings regarding that matter, except to the extent 
     required by section 594(d)(1), and except insofar as the 
     independent counsel agrees in writing that the investigation 
     or proceedings may be continued by the Department of Justice.
       ``(b) Presentation as Amicus Curiae Permitted.--Nothing in 
     this chapter shall prevent the Attorney General or the 
     Solicitor General from making a presentation as amicus curiae 
     to any court as to issues of law raised by any case or 
     proceeding in which an independent counsel participates in an 
     official capacity or any appeal of such a case or proceeding.

     ``Sec. 598. Severability

       ``If any provision of this chapter or the application 
     thereof to any person or circumstance is held invalid, the 
     remainder of this chapter and the application of that 
     provision to other persons not similarly situated or to other 
     circumstances shall not be affected by that invalidation.

     ``Sec. 599. Termination of effect of chapter

       ``This chapter shall cease to be effective 5 years after 
     the date of enactment of the Independent Counsel Reform Act 
     of 1999, except that this chapter shall continue in effect 
     with respect to then pending matters before an independent 
     counsel that in the judgment of that counsel require the 
     continuation until that independent counsel determines those 
     matters have been completed.''.

     SEC. 3. ASSIGNMENT OF JUDGES TO DIVISION TO APPOINT 
                   INDEPENDENT COUNSELS.

       Section 49 of title 28, United States Code, is amended to 
     reads as follows:

     ``Sec. 49. Assignment of judges to division to appoint 
       independent counsels

       ``(a) In General.--Beginning with the 3-year period 
     commencing on the date of the enactment of the Independent 
     Counsel Reform Act of 1999, 3 judges shall be assigned for 
     each successive 3-year period to a division of the United 
     States Court of Appeals for the District of Columbia to be 
     the division of the court for the purpose of appointing 
     independent counsels. The Clerk of the United States Court of 
     Appeals for the District of Columbia Circuit shall serve as 
     the clerk of the division of the court and shall provide such 
     services as are needed by the division of the court.
       ``(b) Other Judicial Assignments.--Except as provided in 
     subsection (e), assignment to the division of the court shall 
     not be a bar to other judicial assignments during the term of 
     the division of the court.
       ``(c) Designation and Assignment.--The Chief Justice of the 
     United States shall designate and assign by a lottery of all 
     circuit court judges, 3 circuit court judges 1 of whom shall 
     be a judge of the United States Court of Appeals for the 
     District of Columbia, to the division of the court. Not more 
     than 1 judge may be named to the division of the court from a 
     particular court.
       ``(d) Vacancy.--Any vacancy in the division of the court 
     shall be filled only for the remainder of the 3-year period 
     in which that vacancy occurs and in the same manner as 
     initial assignments to the division of the court were made.
       ``(e) Recusal.--Except as otherwise provided in chapter 40 
     of this title, no member of the division of the court who 
     participated in a function conferred on the division of the 
     court under chapter 40 of this title involving an independent 
     counsel shall be eligible to participate in any judicial 
     proceeding concerning a matter that--
       ``(1) involves that independent counsel while the 
     independent counsel is serving in that office; or
       ``(2) involves the exercise of the independent counsel's 
     official duties, regardless of whether the independent 
     counsel is still serving in that office.''.
                                  ____


                 Summary of Independent Counsel Statute

       1. Limits applicability of the statute to the President, 
     Vice President, members of the Cabinet, and the President's 
     Chief of Staff.
       2. Eliminates the provision which allowed the AG to begin a 
     preliminary investigation and appoint an IC with regard to 
     any individual when she believed that investigating this 
     person may result in a personal, financial or political 
     conflict of interest.
       3. Eliminates the provision which allowed the AG to begin a 
     preliminary investigation and appoint an IC to investigate a 
     Member of Congress.
       4. Grants the AG the power to convene a grand jury and 
     issue subpoenas during the preliminary investigation.
       5. Increases the length of the preliminary investigation 
     from 90 to 120 days and increases the length of the extension 
     from 60 to 90 days (to allow more time given the AG's new 
     powers and the higher standard for appointing an IC).
       6. Lowers the standard for not appointing an IC due to the 
     suspect's lack of mens rea from ``clear and convincing 
     evidence'' that he/she lacked the requisite state of mind to 
     a ``preponderance of evidence'' that he/she lacked the 
     requisite state of mind.
       7. Changes the standard necessary for appointing an IC from 
     ``reasonable grounds to believe that further investigation is 
     warranted'' to ``substantial grounds to believe that further 
     investigation is warranted.''
       8. Requires that the IC be selected from a list of 
     candidates comprised of 5 individuals recommended by the 
     chief judge of each Federal circuit.
       9. Provides that an IC shall have ``appropriate experience 
     including, to the extent practicable, prosecutorial 
     experience.''
       10. Provides that an IC shall have ``no actual or apparent 
     personal, financial or political conflict of interest.''
       11. Requires that the IC conduct the investigation on a 
     full-time basis.
       12. Eliminates the provision which allows the AG to expand 
     the jurisdiction of an independent counsel beyond his/her 
     original mandate (such as the additions of Filegate, 
     Travelgate, etc. to Starr's original Whitewater mandate).
       13. Provides that the IC can investigate only topics in his 
     original jurisdiction or those ``directly related'' thereto.
       14. Provides that DOJ employees can be detailed to the IC 
     in a number which is ``reasonably related to the number of 
     staff ordinarily assigned by the Department to conduct an 
     investigation of similar size and complexity.''
       15. Eliminates the provision which provided that the IC 
     need not comply with written or established DOJ policies ``to 
     the extent doing so would be inconsistent with the purposes'' 
     of the statute.
       16. Provides a mechanism for aggrieved parties to appeal 
     directly to the AG when they believe that the IC has failed 
     to observe written DOJ policies or guidelines. If the AG 
     determined that the IC has in fact violated the guidelines in 
     a manner that has caused a cognizable harm to the complaining 
     party, the AG may file a motion with the Division of the 
     Court seeking appropriate injunctive or declaratory relief.
       17. Limits the IC's final report to one which sets forth 
     only a list of indictments brought by the IC, the outcomes of 
     each indictment, and a summary of expenses.
       18. Provides that the IC shall submit an annual budget to 
     the AG and the GAO. The GAO shall review the budget and 
     submit a written appraisal of the budget to the IC and the 
     House and Senate Governmental Affairs Committee and 
     Appropriations Committee.
       19. Provides for expedited review of all matters relating 
     to an investigation and a prosecution by an IC.
       20. Deletes the requirement of a report to Congress of any 
     substantial and credible information that may constitute 
     grounds for an impeachment.
       21. Defines the ``good cause'' for which an AG can remove 
     an IC as a physical or mental disability, a knowing, willful 
     and material failure to comply with relevant, written 
     Department of Justice guidelines, and a personal, financial 
     or political conflict of interest.
       22. Provides a 2 year time limit for IC investigation. 
     Empowers the Special Division of the Court to extend this 
     period for additional one year periods for good cause, and to 
     extend this period to make up for dilatory tactics.
       23. Provides that the judges of the Special Division of the 
     Court shall be chosen through a lottery of circuit judges 
     (instead of the current system where the Chief Justice 
     chooses them). Extends period of service on the Special 
     Division from 2 to 3 years.
                                  ____


   Independent Counsel Reform Act of 1999--Section-by-Section Summary

     SEC. 1: SHORT TITLE: ``INDEPENDENT COUNSEL REFORM ACT OF 
                   1999''.

     SEC. 2: INDEPENDENT COUNSEL STATUTE

       United States Code Chapter 40, title 28 is replaced by this 
     Act.

     Sec. 591. Applicability of provisions of this chapter

       The Attorney General shall conduct a preliminary 
     investigation whenever there is specific and credible 
     evidence that a covered person may have violated Federal 
     criminal law. Covered persons include the President, the Vice 
     President, the President's cabinet, and the Chief of Staff.
       The Attorney General shall determine the need for a 
     preliminary investigation based

[[Page S7781]]

     only on the specificity of the information and the 
     credibility of the source. The Attorney General shall 
     determine whether grounds to investigate exist within 30 days 
     of receiving the information.
       Before making any other determinations, the Attorney 
     General shall determine if recusal is necessary and submit 
     this determination in writing to the special court.

     Sec. 592. Preliminary investigation and application for 
       appointment of an independent counsel

       The Attorney General shall make a determination regarding 
     the appointment of an independent counsel within 120 days 
     after the preliminary investigation is commenced. The special 
     court shall be notified of the commencement of that 
     preliminary investigation.
       During the preliminary investigation, the Attorney General 
     shall have no authority to plea bargain or grant immunity, 
     but will possess the authority to convene grand juries and 
     issue subpoenas.
       The Attorney General shall not base a determination to 
     decline the appointment of an independent counsel upon the 
     state of mind of the target unless there is a preponderance 
     of evidence that the target lacked the requisite criminal 
     intent.
       At the expiration of the 120 day period, the Attorney 
     General may apply to the special court for a single extension 
     of not more than 90 days.
       If the Attorney General determines that there are no 
     substantial grounds to believe that further investigation is 
     warranted, the Attorney General shall notify the special 
     court. Notification shall consist of a summary of the 
     information received and the results of the preliminary 
     investigation.
       The Attorney General shall apply to the special court for 
     the appointment of an independent counsel if the Attorney 
     General determines there are substantial grounds to believe 
     that further investigation is warranted or the 120 day period 
     granted for preliminary investigation has elapsed without 
     proper notification to the special court.
       In making this determination, the Attorney General shall 
     comply with the written and established policies of the 
     Department of Justice.
       If the Attorney General receives additional information 
     after notifying the special court of a decision not to seek 
     an independent counsel, the Attorney General shall conduct an 
     additional preliminary investigation for a period of no more 
     than 120 days.
       The Attorney General's determination on the appointment of 
     an independent counsel shall not be reviewable by any court.
       Congress may request in writing that the Attorney General 
     apply for the appointment of an independent counsel. No later 
     than 30 days after a congressional request, the Attorney 
     General must report on the status of the preliminary 
     investigation or the reasons for not investigating.
       If the preliminary investigation is initiated in response 
     to a congressional request, any communication to the special 
     court shall be supplied to the persons requesting the 
     investigation. If no application for the appointment of an 
     independent counsel is made, the Attorney General shall 
     submit a report explaining the decision.

     Sec. 593. Duties of the division of the court

       Upon receipt of an application, the special court shall 
     appoint an appropriate independent counsel and define the 
     independent counsel's prosecutorial jurisdiction. The 
     appointment shall be made from the list of candidates 
     comprised of five individuals recommended annually by the 
     chief judge of each federal circuit.
       An independent counsel shall have appropriate experience, 
     including prosecutorial experience if practical. An 
     independent counsel shall have no actual or apparent conflict 
     of interest and shall conduct the investigation on a full-
     time basis and shall not hold any office of profit or trust 
     under the United States.
       The independent counsel shall have the authority to fully 
     investigate and prosecute the subject matter of the 
     appointment and all matters directly related to the 
     prosecutorial jurisdiction and the proper investigation of 
     the subject matter. ``Directly related'' includes federal 
     crimes, other than certain misdemeanors, that impede the 
     investigation such as perjury and obstruction of justice.
       The identity and prosecutorial jurisdiction of the 
     independent counsel shall not be made public until any 
     indictment is returned or criminal information is filed 
     unless the Attorney General requests such public disclosure 
     or the special court determines it is in the best interest of 
     justice.
       The special court shall have no authority to overrule the 
     determination of the Attorney General not to investigate 
     further.
       If a vacancy in office arises, the special court shall 
     appoint another independent counsel to complete the work. If 
     the vacancy arises by reason of removal, the appointment 
     shall be of a temporary nature until any judicial review of 
     the removal is completed.
       If no indictment is brought against the subject of the 
     investigation, the special court may award the subject 
     reasonable attorneys' fees. The independent counsel and the 
     Attorney General shall determine if the fees requested are 
     reasonable.

     Sec. 594. Authority and duties of an independent counsel

       The independent counsel shall have full power and 
     independent authority to exercise all investigative and 
     prosecutorial functions and powers of the Department of 
     Justice except that the Attorney General shall exercise 
     control over matters that specifically require the Attorney 
     General's personal attention under section 2516 of title 18. 
     These include the following: Conducting proceedings before 
     grand juries; engaging in any litigation considered 
     necessary; appealing any decision of a court in which the 
     independent counsel participates officially; reviewing all 
     documentary evidence; determination of an assertion of 
     testimonial privilege; receiving necessary national security 
     clearances; application for a grant of immunity to witnesses, 
     or for warrants, subpoenas or other court orders; exercising 
     the authority of the Attorney General for the purposes of 
     section 6003, 6004 and 6005 of title 18, and section 6103 of 
     the Internal Revenue Code of 1986; inspecting, obtaining or 
     using any tax return; initiating and conducting prosecutions 
     in any court, framing and signing indictments, filing 
     informations and handling all aspects of any case in the name 
     of the United States; and consulting with the United States 
     Attorney for the appropriate district.
       Travel expenses shall be compensated. After one year of 
     service, commuting costs shall not be reimbursed unless the 
     special court certifies that it is in the public interest. 
     Relevant factors include cost of reimbursement, time period 
     of office, burden of relocation and burden of appointing a 
     different independent counsel.
       An independent counsel may request assistance from the 
     Department of Justice, which shall be provided within reason. 
     The costs relating to the establishment and operation of any 
     office of independent counsel shall be paid through the 
     Department of Justice and reported to the Congress within 30 
     days of the end of the fiscal year.
       The Attorney General or the special court may refer 
     ``directly related'' matters to the independent counsel, who 
     can also request that such matters be referred.
       An independent counsel shall comply with the written and 
     established policies of the Department of Justice, except 
     when such policies require the approval of the Department of 
     Justice. The independent counsel shall comply with all 
     guidelines dealing with classified material.
       A person who is a target, witness or defendant or otherwise 
     directly affected by the investigation, who has reason to 
     believe that the independent counsel is violating a written 
     Department of Justice policy that is material to the 
     investigation, may ask the Attorney General to investigate 
     whether there has been a violation. The Attorney General 
     shall respond in writing within 30 days. If the Attorney 
     General determines that there has been a violation of written 
     policy material to the investigation, the Attorney General 
     may ask the special court to order appropriate relief.
       The independent counsel may dismiss matters within his or 
     her prosecutorial jurisdiction if it is consistent with 
     Department of Justice policy.
       The independent counsel shall report to the special court 
     every 6 months and before termination of the office. The 6-
     month period report shall include explanations of expenses, 
     and estimates of future expenses. The termination report 
     shall include summaries of expenses and disposition of legal 
     actions taken.
       The special court may release appropriate sections of the 
     reports if it is appropriate to protect the rights of any 
     individual named in the report. At the request of an 
     independent counsel, past reports may be printed and made 
     available to the public.
       The independent counsel may have no other paid employment 
     and any person with an associated firm may not represent 
     anyone under investigation by the independent counsel. 
     Appointees may not represent anyone under investigation. The 
     independent counsel and appointees may not represent a 
     subject of the investigation for three years. Those parties 
     and an associated law firm are banned for one year from 
     representing any person in any matter involving this chapter.
       The independent counsel shall conduct all activities with 
     due regard for expenses and authorize only reasonable and 
     lawful expenditures. An appointee making an invalid 
     certification will be held liable. An independent counsel 
     shall comply with the established expenditure policies of the 
     Department of Justice.
       The independent counsel shall within 90 days of appointment 
     submit a budget for the first year, and thereafter on an 
     annual basis. This budget shall be submitted to the Attorney 
     General and the General Accounting Office (``GAO''). The GAO 
     shall review the annual budget and submit a written appraisal 
     to Congress.
       It shall be the duty of the courts of the United States to 
     expedite matters relating to an investigation and prosecution 
     by an independent counsel.

     Sec. 595. Congressional oversight

       The appropriate committees of Congress shall have oversight 
     jurisdiction. The independent counsel shall submit annually a 
     report on the activities of the independent counsel omitting 
     confidential matters, but sufficient to justify the 
     expenditures.
       Within 15 days of a request from an appropriate 
     congressional committee, the Attorney General shall provide 
     the following: when the information regarding the case was 
     received, the starting date of the preliminary investigation, 
     and whether an application for an independent counsel or 
     notification of no further investigation has been filed.

[[Page S7782]]

     Sec. 596. Removal of an independent counsel; termination of 
       office

       An independent counsel may only be removed from office by 
     the Attorney General for ``good cause,'' physical or mental 
     disability, or any other condition that impairs the 
     performance of the independent counsel's duties. Good cause 
     include a knowing and material failure to comply with the 
     written policies of the Department of Justice, or an actual 
     conflict of interest
       Upon removal of an independent counsel, the Attorney 
     General shall submit a report to the special court and the 
     appropriate congressional committees specifying the facts 
     found and the ultimate grounds for the removal. This report 
     shall be made public with necessary protections for the 
     rights of any named individual.
       The independent counsel may request judicial review of his 
     or her removal. Remedies may include reinstatement or other 
     appropriate relief.
       The independent counsel shall notify the Attorney General 
     when the matters within the prosecutorial jurisdiction have 
     been completed, or completed to the point that it would be 
     appropriate for the Department of Justice to complete those 
     investigations. The independent counsel shall file the final 
     report. The special court may terminate an office of the 
     independent counsel on the same grounds within two years of 
     appointment and thereafter on an annual basis.
       The term of an independent counsel shall terminate after 
     two years except for good cause or dilatory tactics. The 
     special court shall review all requests for extensions and 
     may grant an extension for additional one year periods.
       By June 30th and December 31st of each year, the 
     independent counsel shall prepare a statement of expenditures 
     covering the previous 6 months. The Comptroller General shall 
     conduct a financial review of the statements and submit the 
     results to the appropriate congressional committees.

     Sec. 597. Relationship with the Department of Justice

       Whenever a matter is within the prosecutorial jurisdiction 
     of the independent counsel, the Department of Justice shall 
     suspend all investigation, except if the independent counsel 
     agrees in writing that the matter may be continued by the 
     Department of Justice.
       Nothing in this chapter shall prevent either the Attorney 
     General or the Solicitor General from presenting an amicus 
     curiae brief on matters involving the jurisdiction of the 
     independent counsel.

     Sec. 598. Severability

       If any provision of this chapter is held invalid, the 
     remainder of this chapter not similarly situated shall not be 
     affected by that invalidation.

     Sec. 599. Termination of effect of chapter

       This chapter shall sunset five years after the date of 
     enactment.

     SEC. 3: ASSIGNMENT OF JUDGES TO DIVISION TO APPOINT 
                   INDEPENDENT COUNSELS

       Section 49 of title 28, United States Code, is amended to 
     read as follows:

     Sec. 49. Assignment of judges to division to appoint 
       independent counsel

       Three judges shall be assigned for a period of three years 
     to a division of the United States Court of Appeals for the 
     District of Columbia to be the special court for the purpose 
     of appointing independent counsels. This shall not be a bar 
     to other judicial assignments. Assignment shall be by 
     lottery. Vacancies shall be filled by lottery only for the 
     remainder of the assignment. These judges shall not be 
     eligible to participate in any judicial proceeding concerning 
     a matter that involves the independent counsel while the 
     independent counsel is in office, or a matter involving the 
     exercise of the independent counsel's official duties.

  Mr. SPECTER. Mr. President, I ask unanimous consent for 2 additional 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I have sought recognition for 2 
additional minutes to comment about an amendment which I will seek to 
add when this statute is considered. It is one where I am proceeding by 
myself. That is a provision to have a mandamus action to compel the 
Attorney General to appoint an independent counsel where there is an 
abuse of discretion. It is my view that independent counsel should have 
been appointed on campaign finance reform, as recommended by FBI 
Director Louis Freeh and special counsel Charles LaBella.
  I will ask consent that at the conclusion of the remarks which I am 
now making, there be included a draft complaint which I had prepared to 
compel the appointment of independent counsel.
  This draft complaint was never filed because at each stage where it 
appeared warranted to pursue mandamus, the Attorney General would take 
some action on extension of investigation, and then it became 
interwoven with the impeachment proceedings so the time was never quite 
right. There was a complex issue on standing, although at one time we 
almost had an agreement by the chairman of the House Judiciary 
Committee and the chairman of the Senate Judiciary Committee to have 
their sponsorship, perhaps if not all of the Republicans in each 
committee, a majority of the Republicans, which would have provided 
standing for a report and, by analogy, perhaps, standing for such a 
lawsuit.
  I do believe that when independent counsel is again considered and 
this statute sponsored by the four of us will be ready, willing, and 
able to proceed, the issue of a mandamus action ought to be considered.
  I ask unanimous consent that the text of this draft complaint be 
printed in the Record to preserve the factual allegations for later 
reference on the general principle of the need for a mandamus 
provision.
  There being no objection, the complaint was ordered to be printed in 
the Record, as follows:

   [United States District Court for the District of Columbia, Civil 
                             Action No.   ]

 Plaintiffs vs. The Honorable Janet Reno, Attorney General, Department 
                         of Justice, Defendant.


                               COMPLAINT

       Plaintiffs, by counsel, complain as follows:
       COME NOW Plaintiffs, and for cause of action against 
     Defendant, allege as follows:

                              JURISDICTION

       1. This court has jurisdiction by reason of (1) 28 U.S.C. 
     section 1361, which confers jurisdiction over any action in 
     the nature of mandamus to compel an officer or employee of 
     the United States, or any agency thereof, to perform a duty 
     owed to the plaintiff; (2) 5 U.S.C. section 702, which 
     confers jurisdiction over any action to compel an agency of 
     the United States to perform a duty which has been 
     unreasonably withheld; and (3) by reason of its general 
     Federal Question jurisdiction under 28 U.S.C. section 1331.

                  The Parties and Statutory Background

       2. This is an action to compel the Attorney General of the 
     United States of America to comply with statutory provisions 
     set forth in the Independent Counsel Statute, 28 U.S.C. 
     sections 591-599 (hereinafter ``The Act'').
       3. [Plaintiffs comprise a majority of the Republican 
     members of the House and Senate Judiciary Committees.] 
     Section 592(g) of the Act provides that a majority of the 
     majority party members of the House or Senate Judiciary 
     Committee shall have the authority to request that the 
     Attorney General apply for appointment of an independent 
     counsel.
       4. Defendant is the Attorney General of the United States 
     and is charged with the duty of carrying out the provisions 
     of the Act by reason of the requirements set forth in 28 
     U.S.C. sections 591-595.
       5. Section 591 of the Act provides that the Attorney 
     General ``shall'' conduct a preliminary investigation 
     whenever the Attorney General receives specific and credible 
     information which is ``sufficient to constitute grounds to 
     investigate'' whether a covered person under the Act ``may 
     have violated'' any Federal criminal law. Such covered 
     persons include the President and the Vice President.
       6. Section 592(c) of the Act provides that the Attorney 
     General ``shall'' apply to the special division of the 
     circuit court for appointment of an independent counsel if 
     the Attorney General determines, after reviewing specific and 
     credible evidence, that there are ``reasonable grounds to 
     believe that further investigation is warranted.''

                           Factual Background

       7. The following factual background sets forth specific and 
     credible information sufficient to require the Attorney 
     General to apply for appointment of an independent counsel 
     under the provisions of the Act cited above. This information 
     has been organized as follows:
       I. National Security Information Withheld from the 
     President. The Attorney General found that there was 
     sufficient evidence of illegal activity by the President to 
     justify withholding certain national security information 
     from him. Since the evidence was sufficiently compelling to 
     justify such an extreme denial of presidential prerogative, 
     the same evidence is sufficiently specific and credible so as 
     to warrant appointment of independent counsel.
       II. Criminal Violations. The Attorney General has ignored 
     specific and credible evidence of at least two violations 
     that warrant appointment of an independent counsel to 
     investigate the President and/or the Vice President:
       A. Coordination between the President and the DNC. There is 
     specific and credible evidence that President Clinton engaged 
     in illegal coordination of expenditures by the DNC on its 
     television advertising campaign.
       B. Conspiracy to Violate and Evade the Campaign Finance 
     Laws. There is specific and credible evidence that the 
     President, Vice President, and other high-ranking officials 
     acted in concert to violate the Federal Election Campaign 
     Act.
       III. The Failure of the Department of Justice's 
     Investigation and Estoppel of the Attorney General.

[[Page S7783]]

       A. Failure of the Department of Justice's Campaign Finance 
     Investigation. After over one year of investigation, the 
     Justice Department's campaign finance task force has suffered 
     a series of embarrassments and can point to little visible 
     achievement. If a credible investigation is to take place, it 
     must be done by an independent counsel.
       B. Estoppel of the Attorney General. Attorney General Reno 
     has stated before Congress that there is an inherent conflict 
     whenever senior Executive Branch officials are to be 
     investigated by the Justice Department and its appointed 
     head, the Attorney General. Furthermore, Attorney General 
     Reno has, until the present, complied with the view she 
     expressed before Congress by appointing independent counsels 
     to investigate Executive Branch officials on four separate 
     occasions. Given the Attorney General's statements and 
     pattern of behavior, and Congress' detrimental reliance 
     thereon, Attorney General Reno is estopped from refusing to 
     appoint an independent counsel in the instant case.


   I. National Security Information Withheld from the President and 
                           Secretary of State

       8. The Federal Election Campaign Act provides that ``it 
     shall be unlawful for a foreign national directly or through 
     any other person to make any contribution of money or other 
     thing of value . . . in connection with an election to any 
     political office. . . .'' 2 U.S.C. 441e(a). A ``foreign 
     national'' is defined as someone who is not a citizen of the 
     United States and who is not lawfully admitted for permanent 
     residence in the United States. 2 U.S.C. 441e(b).
       9. National Security Information Withheld from the 
     President. On June 3, 1996, the F.B.I. briefed two members of 
     the White House National Security Council (the ``N.S.C.'') on 
     intelligence of Chinese Government efforts to buy influence 
     in the United States government through political 
     contributions. Also in June, the F.B.I. provided individual, 
     classified briefings to 6 members of Congress, warning them 
     that they may have been targeted by the Chinese Government to 
     be the recipients of illegal campaign contributions.
       10. President Clinton was not informed of the F.B.I. 
     briefing to the N.S.C. and became aware of it only after 
     reading a February, 1997 report in the Washington Post. After 
     learning about the June briefing, President Clinton explained 
     on March 10, 1997, that the two N.S.C. officials had not 
     reported the F.B.I. briefing to their superiors because the 
     F.B.I. agents involved, ``asked that they [the N.S.C. 
     officials] not share the briefing, and they honored the 
     request.'' Also on March 10, White House Press Secretary 
     Michael McCurry stated that the two N.S.C. officials who 
     received the briefing were ``adamant in recalling 
     specifically that they were urged by [by the FBI] not to 
     disseminate the information outside the briefing room.''
       11. President Clinton further stated on March 10 that such 
     national security information should not have been withheld 
     from him. The President stated, ``I should have known. No, I 
     did not know. If I had known, I would have asked the N.S.C. 
     and the chief of staff to look at the evidence and make 
     whatever recommendations were appropriate.''
       12. National Security Information Withheld from the 
     Secretary of State. On February 18, 1997 White House Counsel 
     Charles Ruff wrote to Deputy Attorney General Jamie Gorelick 
     asking for information about the possible involvement of 
     Chinese officials and citizens in a purported plan to make 
     illegal contributions to American political campaigns. He 
     sought this information in order to brief Secretary of State 
     Madeline Albright, who was preparing to make an official 
     visit to China in late February. Mr. Ruff's letter stressed 
     that he did not want information that might interfere with 
     ``any criminal investigation.''
       13. The New York Times reported (March 25, 1997) that 
     F.B.I. and Justice Department officials prepared a thorough 
     response to Mr. Ruff's letter but, at the request of F.B.I. 
     Director Freeh, this response was never sent. As a result, 
     Secretary of State Albright was denied critical information 
     at a time when she was embarking upon a diplomatic mission to 
     Beijing.
       14. In response to this decision to withhold this 
     information from the Secretary of State, President Clinton 
     stated on March 26, 1997 that, ``I think everyone understands 
     that there are significant national security issues at stake 
     here and that the White House, the National Security Council, 
     and the Secretary of State, as well as the President, need to 
     know when the national security issues are brought into 
     play.''
       15. On April 30, 1997, Attorney General Janet Reno appeared 
     before the Senate Judiciary Committee for an oversight 
     hearing. At this hearing, Senator Arlen Specter questioned 
     the Attorney General about these reports that the FBI and the 
     Justice Department had withheld national security information 
     from President Clinton and the Secretary of State because the 
     President is a subject in a criminal investigation. In 
     response, Attorney General Reno acknowledged that Director 
     Freeh had told National Security Advisor Sandy Berger that 
     ``he [Freeh] would not go into certain matters because of the 
     ongoing criminal investigation.''
       16. In an op-ed piece published in the Washington Post on 
     May 22, 1997, Senator Arlen Specter noted the inconsistency 
     in Attorney General Reno's position: ``Since the facts of the 
     underlying investigation are sufficiently serious in the 
     judgement of the Attorney General to deny the president 
     `significant national security' data, how can they possibly 
     be insufficiently `credible' and `specific' to justify not 
     appointing independent counsel?''


                        II. Criminal Violations

       17. There is specific and credible evidence that the 
     President and Vice President have committed criminal 
     violations of the Federal Election Campaign Act (``FECA''). 
     The Attorney General has therefore violated the letter and 
     the spirit of the Independent Counsel Statute by failing to 
     appoint an independent counsel to investigate these 
     allegations.

   A. Illegal Coordination of Expenditures of DNC Money by President 
                                Clinton

       18. There is specific and credible evidence that President 
     Clinton committed a criminal violation of FECA by personally 
     drafting, editing, and planning a series of television 
     advertisements paid for by Democratic National Committee soft 
     money.
       19. ``Hard money'' is money which is raised pursuant to the 
     caps, restrictions, and reporting requirements of FECA. Hard 
     money can be spent in connection with a specific campaign for 
     Federal office. ``Soft money'' is money that is not governed 
     by the restriction of FECA and can therefore be raised in 
     unlimited amounts. Soft money cannot be spent in connection 
     with specific campaigns for Federal office and must be used 
     for general party building activities.
       20. As one of the conditions for receiving $61.8 million in 
     Federal funding for their 1996 general election campaign, 
     President Clinton and Vice President Gore signed a letter to 
     the Federal Election Commission in which they pledged that in 
     exchange for the Federal funding they would not spend any 
     additional money on their campaign.
       21. After signing the pledge, President Clinton actively 
     participated in raising funds for the DNC beyond these 
     limits. According to Federal Election Commission records, the 
     President helped raise $27 million in hard and soft money for 
     the DNC through the White House coffees, and an additional $6 
     million in hard and soft money for the DNC from overnight 
     guests in the Lincoln Bedroom.
       22. President Clinton also actively participated in 
     spending DNC money through close coordination with the DNC of 
     the expenditures made on a major television advertising 
     campaign.
       23. Former White House Chief of Staff Leon Panetta, 
     appearing on the March 9, 1997 edition of NBC's ``Meet the 
     Press,'' acknowledged that President Clinton helped direct 
     the expenditure of approximately $35 million in DNC soft 
     money on television campaign commercials.
       24. Former Presidential advisor Richard Morris, in his book 
     Behind the Oval Office (p. 144), describes his first-hand 
     knowledge of the coordination which took place between 
     President Clinton and the DNC: ``[T]he President became the 
     day-to-day operational director of our TV-ad campaign. He 
     worked over every script, watched each ad, ordered changes in 
     every visual presentation, and decided which ads would run 
     when and where. He was as involved as any of his media 
     consultants were. The ads became not the slick creations of 
     admen but the work of the president himself. . . . Every line 
     of every ad came under his informed, critical, and often 
     meddlesome gaze. Every ad was his ad.''
       25. Section 441a(a)(7)(B)(I) of FECA states that: 
     ``Expenditures made by any person in cooperation, 
     consultation, or concert, with, or at the request or 
     suggestion of, a candidate, his authorized political 
     committees, or their agents, shall be considered to be a 
     contribution to such candidate.'' By this standard, all of 
     the money spent by the Democratic National Committee 
     (``DNC'') on express advocacy commercials, as defined under 
     FECA, that were designed, edited and/or purchased in 
     consultation and co-ordination with the Clinton campaign and 
     the President personally were contributions to the Clinton 
     campaign under FECA. The President knowingly violated FECA by 
     (1) coordinating the contributions by the DNC and (2) 
     accepting and expending contributions in violation of his 
     commitment to limit expenditures to the public financing.
       26. Violations of FECA are criminal violations when they 
     are done ``knowingly and willfully'' and involve 
     contributions or expenditures aggregating $2,000 or more. 2 
     U.S.C. 437g(d)(1)(A).
       27. The Federal Election Commission has defined express 
     advocacy ads as: ``Communications using phrases such as `vote 
     for President,' `reelect your Congressman,' `Smith for 
     Congress,' or language which, when taken as a whole and with 
     limited reference to external events, can have no other 
     reasonable meaning that to urge the election or defeat of a 
     clearly identified federal candidate.'' 11 CFR 100.22.
       28. On April 30, 1997, Attorney General Janet Reno appeared 
     before the Senate Judiciary Committee for an oversight 
     hearing. At this hearing, Senators Arlen Specter and Fred 
     Thompson questioned the Attorney General about the 
     coordination between the DNC and the President. The Attorney 
     General acknowledged that coordination between President 
     Clinton and the DNC ``was presumed at the time by the FEC.'' 
     The Attorney General further stated that ``it would be the 
     content'' which controlled whether or not the law was 
     violated, thereby acknowledging that such coordination would 
     be illegal if the advertisements so produced were advocacy 
     ads.

[[Page S7784]]

       29. Senator Specter then asked Attorney General Reno the 
     following question:
       Attorney General Reno . . . I ask you if this advertisement 
     . . . can be anything other than express advocacy. . . . It 
     reads as follows:
       `Head Start, student loans, toxic cleanup, extra police, 
     anti-drug programs--Dole-Gingrich wanted them cut. Now, 
     they're safe, protected in the 1996 budget because the 
     president stood firm. Dole-Gingrich--deadlock, gridlock, 
     shutdowns. The president's plan--finish the job, balance 
     the budget, reform welfare, cut taxes, protect Medicare. 
     President Clinton gets it done. Meet our challenge, 
     protect our values.'
       Can that possibly be language taken as a whole which does 
     anything other than urge the election expressly of President 
     Clinton?
       30. In response to this question, the following exchange 
     took place between Attorney General Reno and Senator Specter:
       RENO: Based on the processes that have been established by 
     the Department of Justice, the MOU with the elections 
     commission, this is a situation in which we would not find 
     specific and credible evidence that a crime had been 
     committed that would justify triggering the statute.
       SPECTER: Well, Attorney General Reno, that is conclusory. A 
     critical step along the way is your legal judgment as to 
     whether that is express advocacy.
       RENO: At this point, the career lawyers who have worked on 
     this issue, who are familiar with the election law, I have 
     met with them. We have discussed it, and they do not believe 
     that it could support a prosecution.
       SPECTER: Are you familiar with these ads, Attorney General 
     Reno?
       RENO: I have not seen the ads. I have read what could be 
     called the transcripts of the ads.
       SPECTER: Well, can you say--listen, I don't have to make a 
     point that you're the attorney general. You have career 
     lawyers. Have you gone over these ads with them specifically 
     to ask them?
       RENO: I have specifically gone over the ads. I have read 
     the ads and have discussed the ads and discussed what is 
     involved.
       SPECTER: And have your career lawyers told you that the ad 
     I just read to you is not express advocacy?
       RENO: What they have told me is that based on their 
     understanding of the law, their structure of the election 
     law, that we could not sustain a prosecution.
       SPECTER: Well, I understand your conclusion. But my 
     question to you is a lot more specific than that: Have you 
     gone over that ad with your career prosecutors, and they told 
     you that was issue advocacy . . .
       RENO: No, I have not.
       SPECTER: Well, Attorney General Reno, I would like to 
     submit these to you, and I would like you to give us your 
     judgment as to whether they are express advocacy or not--your 
     judgment on them. . . . And this is not a judgment for the 
     Federal Election Commission alone. This is jurisdiction for 
     the attorney general of the Department of Justice, because 
     the Federal Election Commission statute has criminal 
     penalties.
       31. Senator Arlen Specter wrote to Attorney General Reno on 
     May 1, 1997 requesting a legal judgment as to whether the ads 
     in question constitute express advocacy. A true and correct 
     copy of the May 1, 1997 letter is attached as Exhibit   . All 
     of the contents of the attached letter are hereby 
     incorporated by reference as part of the factual and 
     evidentiary basis for the relief sought in this complaint. 
     Senator Specter included in his letter the following texts of 
     the DNC advertisements:
       `American values. Do our duty to our parents. President 
     Clinton protects Medicare. The Dole/Gingrich budget tried to 
     cut Medicare $270 billion. Protect families. President 
     Clinton cut taxes for millions of working families. The Dole/
     Gingrich budget tried to raise taxes on eight million of 
     them. Opportunity. President Clinton proposed tax breaks for 
     tuition. The Dole/Gingrich budget tried to slash college 
     scholarships. Only President Clinton's plan meets our 
     challenges, protects our values.
       `60,000 felons and fugitives tried to buy handguns--but 
     couldn't--because President Clinton passed the Brady Bill--
     five-day waits, background checks. But Dole and Gingrich 
     voted no. One hundred thousand new police--because President 
     Clinton delivered. Dole and Gingrich? Vote no, want to repeal 
     'em. Strengthen school anti-drug programs. President Clinton 
     did it. Dole and Gingrich? No again. Their old ways don't 
     work. President Clinton's plan. The new way. meeting our 
     challenges, protecting our values.
       `America's values. Head Start. Student loans. Toxic 
     cleanup. Extra police. Protected the budget agreement; the 
     president stood firm. Dole, Gingrich's latest plan includes 
     tax hikes on working families. Up to 18 million children face 
     health care cuts. Medicare slashed $167 billion. Then Dole 
     resigns, leaving behind gridlock he and Gingrich created. The 
     president's plan: Politics must wait. Balance the budget, 
     reform welfare, protect our values.
       `Head Start. Student Loans. Toxic Cleanup. Extra police. 
     Anti-drug programs. Dole, Gingrich wanted them cut. Now 
     they're safe. Protected in the '96 budget--because the 
     president stood firm. Dole, Gingrich? Deadlock. Gridlock. 
     Shutdowns. The president's plan? Finish the job, balance the 
     budget. Reform welfare. Cut taxes. Protect Medicare. 
     President Clinton says get it done. Meet our challenges. 
     Protect our values.
       `The President says give every kid a chance for college 
     with a tax cut that gives $1,500 a year for two years, making 
     most community colleges free, all colleges more affordable . 
     . . And for adults, a chance to learn, find a better job. The 
     president's tuition tax cut plan.
       `Protecting families. For million of working families, 
     President Clinton cut taxes. The Dole-Gingrich budget tried 
     to raise taxes on eight million. The Dole-Gingrich budget 
     would have slashed Medicare $270 billion. Cut college 
     scholarships. The president defended our values. Protect 
     Medicare. And now, a tax cut of $1,500 a year for the first 
     two years of college. Most community colleges free. Help 
     adults go back to school. The president's plan protects our 
     values.'
       32. By letter dated June 19, 1997, Attorney General Reno 
     refused to respond to Senator Specter's request and instead 
     referred the request to the Federal Election Commission 
     (``FEC''). A true and correct copy of the June 19, 1997 
     letter is attached as Exhibit  . All of the contents of the 
     attached letter are hereby incorporated by reference as part 
     of the factual and evidentiary basis for the relief sought in 
     this complaint. By letter dated June 26, 1997, the FEC 
     responded that it would not respond to Senator Specter's 
     inquiry because the letter was not in the form of a formal 
     complaint to the Commission. A true and correct copy of the 
     June 26, 1997 letter is attached as Exhibit  . All of the 
     contents of the attached letter are hereby incorporated by 
     reference as part of the factual and evidentiary basis for 
     the relief sought in this complaint.
       33. The President conceded that these DNC ads were advocacy 
     advertisements intended to further his candidacy in remarks 
     he made at a December 7, 1995 DNC luncheon at the Hay Adams 
     Hotel in Washington. The President said the following in 
     remarks which were captured on videotape: ``Now we have come 
     way back. . . . But one of the reasons has been . . . we have 
     been running these ads, about a million dollars a week. . . . 
     So I cannot overstate to you the impact that these paid ads 
     have had in the areas where they've run. Now we're doing 
     better in the whole country. . . . [I]n areas where we've 
     shown these ads we are basically doing ten to fifteen points 
     better than in areas where we are not showing them. . . . And 
     then we realized that we could run these ads through the 
     Democratic Party which meant that we could raise money in 
     twenty and fifty and hundred thousand dollar lots, and we 
     didn't have to do it all in thousand dollars and run down--
     you know--what I can spend which is limited by law.
       34. The facts outlined above constitute sufficient specific 
     and credible evidence to make a prima facie case that the 
     President committed criminal violations of FECA through the 
     knowing and wilful coordination of the expenditure of DNC 
     soft money. The Attorney General has therefore violated the 
     letter and the spirit of the Indpendent Counsel statute by 
     failing to appoint an independent counsel to investigate 
     these allegations.

     B. Conspiracy to Violate and Evade the Campaign Finance Laws.

       35. 18 U.S.C. 371 provides that a conspiracy to commit an 
     offense against the United States is a criminal offense 
     punishable by up to 5 years in prison. Participation in a 
     conspiracy to violate the Federal campaign finance laws is 
     therefore a criminal violation.
       36. After the Democrats lost control of both houses of 
     Congress in the 1994 elections, President Clinton and his 
     associates realized that in order to win reelection in 1996, 
     the Clinton campaign would need to raise large sums of money. 
     President Clinton's former senior advisor, George 
     Stephanopoulos, wrote in Newsweek (March 10, 1997) that 
     President Clinton's reelection would ``take cash, tons of it, 
     and everybody from the President on down knew it. So money 
     became a near obsession at the highest levels. We pulled out 
     all the stops: overnights at the White House, coffees, 
     intimate dinners at Washington hotels, you name it.''
       37. As the events detailed below reveal, ``pulling out all 
     of the stops'' included ignoring the Federal election law. 
     Accordingly, the White House plan to aggressively pursue 
     campaign contributions was, in practice, a conspiracy to 
     evade and violate the Federal election laws.
       38. The acts detailed below were all acts in furtherance of 
     this conspiracy. There is specific and credible evidence that 
     President and Vice President participated in this conspiracy 
     by trading access to the President, Vice President and other 
     Executive Branch officials for political contributions, 
     trading access to the White House for political 
     contributions, engaging in fundraising activities from 
     Federal property, granting public office for political 
     contributions, and soliciting campaign contributions from 
     illegal sources.

        Use of the White House for Fundraising--The May 1 Coffee

       39. President Clinton personally engaged in fundraising 
     activities from the executive offices of the White House. On 
     April 29, 1997, the Democratic National Committee (``DNC'') 
     sent a memorandum to President Clinton which identified five 
     individuals invited to attend a May 1 coffee at the White 
     House. The following personal note is typed at the top of the 
     memo, ``Mr. President. . . the five attendees of this coffee 
     are $100,000 contributors to the DNC.'' In addition, there is 
     a notation on the first page of the memo which reads, 
     ``President has seen, 5/1/96.'' A true and correct copy of 
     the April

[[Page S7785]]

     29, 1997 memorandum is attached hereto as Exhibit  . All 
     of the contents of the attached memorandum are hereby 
     incorporated by reference as part of the factual and 
     evidentiary basis for the relief sought in this complaint.
        40. On May 1, 1996, President Clinton held a coffee in the 
     Oval Office which was attended by the five individuals listed 
     in the DNC memo. Federal Election Commission (``FEC'') 
     filings show that within one week of the coffee, four of the 
     five attendees (Peter Mathias, Samuel Rothberg, Barrie 
     Wigmore, and Robert Menschel) had contributed $100,000 each 
     to the DNC. A true and correct copy of a printout from the 
     FEC database of contributors is attached hereto as Exhibit  . 
     All of the contents of the attached printout are hereby 
     incorporated by reference as part of the factual and 
     evidentiary basis for the relief sought in this complaint.

   Use of the White House for Fundraising--Overnights in the Lincoln 
                                Bedroom

       41. President Clinton used the opportunity to spend the 
     night at the White House as a tool to raise funds from large 
     contributors. The overnights in question were arranged by the 
     Democratic National Committee, not the President, and thus do 
     not fall into the category of the President using his 
     residence to entertain friends.
       42. White House records indicate that between 1993 and 
     1996, 178 individuals who were not personal friends of the 
     President or First Family spent the night at the White House. 
     These 178 individuals contributed a total of over $5 million 
     to the DNC during the '96 election cycle. A true and correct 
     copy of the list of 178 overnight guests provided by the 
     White House to the Senate Governmental Affairs Committee is 
     attached hereto as Exhibit  . All of the contents of the 
     attached list are hereby incorporated by reference as part of 
     the factual and evidentiary basis for the relief sought in 
     this complaint
       43. The Senate Governmental Affairs Committee obtained a 
     list of the dates on which 51 of these 178 individuals spent 
     the night in the White House. Of these 51 individuals, 49 
     contributed a total of over $4 million to the DNC during the 
     1996 election cycle. Furthermore, of these 38 families 
     represented by these 51 individuals, 37 families, or 98%, 
     contributed to the DNC during the 1996 election cycle. 21 of 
     the 38 families, or over 50% percent, contributed a total of 
     $900,000 to the DNC within one month of their stay at the 
     White House. A true and correct copy of this list of 51 
     overnight guests is attached hereto as Exhibit  . All of the 
     contents of the attached list are hereby incorporated by 
     reference as part of the factual and evidentiary basis for 
     the relief sought in this complaint.

                 The Solicitation of R. Warren Meddoff

       44. Appearing before the Senate Governmental Affairs 
     Committee on September 19, 1997, Mr. Warren Meddoff testified 
     to the facts set forth in paragraphs 35, 36 and 37 below.
       45. At a fund-raising dinner on October 22, 1996 at the 
     Biltmore Hotel in Coral Gables, Florida, Mr. Meddoff handed 
     one of his business cards to President Clinton with the 
     following message written on the back of the card, ``I have 
     an associate that it interested in donating $5 million to 
     your campaign.''
       46. After reading this message, the President stopped to 
     speak with Mr. Meddoff and stated that someone from his staff 
     would contact him. Two days later, on October 24, the 
     President's Deputy Chief of Staff, Mr. Harold Ickes, called 
     Mr. Meddoff and left a message on his answering machine. On 
     October 26, Mr. Ickes called Mr. Meddoff again, this time 
     from Air Force One, and discussed the possibility that an 
     associate of Mr. Meddoff would contribute as much as $55 
     million to the DNC over the course of the year.
       47. On October 29 or 30, Mr. Ickes called Mr. Meddoff again 
     and asked for an immediate contribution of $1.5 million 
     within 24 hours. On the next morning, Mr. Ickes sent Mr. 
     Meddoff a fax with detailed instructions on where to send the 
     money. Mr. Ickes later called Mr. Meddoff and requested that 
     he shred the fax.

                    Mr. Roger Tamraz's Contributions

       48. Appearing before the Senate Governmental Affairs 
     Committee on September 18, 1997, Mr. Roger Tamraz testified 
     that he gave a total of $300,000 in contributions to the DNC 
     and state Democratic parties during the 1996 campaign. On 
     March 28, 1996, at Mr. Tamraz's request, the DNC's Richard 
     Sullivan drafted a memorandum to Mr. Tamraz listing the 
     Democratic entities to which Mr. Tamraz had contributed and 
     the amounts he had contributed to each entity as of that 
     date. A true and correct copy of the March 28, 1996 
     memorandum is attached hereto as Exhibit  . All of the 
     contents of the attached memorandum are hereby incorporated 
     by reference as part of the factual and evidentiary basis for 
     the relief sought in this complaint
        49. In his September 18 testimony, Mr. Tamraz stated that 
     ``the only reason'' he contributed this money was to gain 
     access to the President and senior government officials. Mr. 
     Tamraz was promoting a plan to build an oil pipeline from the 
     Caspian Sea region of Central Asia to the Mediterranean and 
     was hoping to receive assistance from the Federal government.
        50. Mr. Tamraz further testified that, following this 
     donation, Mr. Tamraz was invited to six social functions at 
     the White House. At one of these events, he spoke to 
     President Clinton briefly about the proposed pipeline. Asked 
     whether or not he got his ``money's worth'' for the $300,000 
     he gave, Mr. Tamraz replied, ``I think next time I'll give 
     $600,000.''
        51. Appearing before the Senate Governmental Affairs 
     Committee on September 17, 1997, Ms. Sheila Heslin, a former 
     official with President Clinton's National Security Council, 
     testified that she was concerned about Mr. Tamraz's ``shady 
     reputation'' and advised the White House not to agree to any 
     formal policy meetings with him.
        52. Ms. Heslin further testified that she received calls 
     to pressure her to drop her opposition to Roger Tamraz from 
     Don Fowler of the Democratic National Committee, Jack Carter 
     of the Department of Energy, and a CIA officer referred to 
     publicly as ``Bob of the CIA.'' Ms. Heslin testified, for 
     example, that Jack Carter told her that ``he [Mr. Tamraz] 
     has already given $200,000, and if he got a meeting with 
     the President, he would give the DNC another $400,000.'' 
     When Ms. Heslin persisted in her opposition, Mr. Carter 
     told her not to be ``such a Girl Scout.''

         Mr. John Huang in the Commerce Department and the DNC

       53. On July 18, 1994, John Huang began to serve as the 
     Deputy Assistant Secretary for International Trade and 
     Economic Policy at the U.S. Department of Commerce. Huang's 
     supervisor at the Commerce Department, Commerce 
     Undersecretary Jeffrey Garten, found Huang ``totally 
     unqualified'' for his position and limited his activities to 
     administrative duties.
       54. Prior to working at the Commerce Department, John Huang 
     had been the chief U.S. representative of the Lippo Group. 
     The Lippo Group is a multi-billion dollar firm based in 
     Indonesia with large investments in the Far East and China. 
     The Lippo Group is controlled by Mochtar and James T. Riady, 
     longtime friends and financial backers of President Clinton 
     dating back to his days as governor of Arkansas.
       55. The Lippo Group has extensive investments and contacts 
     throughout China and is currently involved in dozens of 
     large-scale joint ventures in China, including construction 
     and development of apartment complexes, office buildings, 
     highways, ports, and other infrastructure. Appearing before 
     the Senate Governmental Affairs Committee on July 15, 1997, 
     Mr. Thomas Hampsen, president of a business research and 
     investigation firm, testified that ``the record is very clear 
     that the Lippo Group has shifted its strategic center from 
     Indonesia to the People's Republic of China.'' Mr. Hampsen 
     noted that Lippo's principal partner in China is ``China 
     Resources,'' a company wholly owned by the Chinese 
     Government. Mr. Hampsen further testified that ``the People's 
     Republic of China uses China Resources as an agent of 
     espionage, economic, military, and political.''
       56. Documents from the Lippo Group and its subsidiaries 
     show that, upon leaving the Lippo Group for a much lower 
     paying job at the Commerce Department, Huang received a bonus 
     of over $700,000. A true and correct copy of the Lippo Group 
     documents detailing John Huang's bonus are attached hereto as 
     Exhibit   . All of the contents of the attached documents are 
     hereby incorporated by reference as part of the factual and 
     evidentiary basis for the relief sought in this complaint.
       57. Records from the U.S. Secret Service show that during 
     his tenure at the Commerce Department, and despite the fact 
     that he was a relatively low level functionary there, Huang 
     made 67 visits to the White House. A true and correct copy of 
     a list of the dates on which the visits took place and, where 
     available, the visitee is attached hereto as Exhibit   . All 
     of the contents of the attached list are hereby incorporated 
     by reference as part of the factual and evidentiary basis for 
     the relief sought in this complaint.
       58. While he was at the Commerce Department, Huang was 
     given top secret security clearance. Appearing before the 
     Senate Governmental Affairs Committee on July 16, 1997, Mr. 
     John H. Dickerson, a CIA agent who handled issues relating to 
     the Commerce Department, testified that he gave John Huang 37 
     confidential intelligence briefings in which he showed Huang 
     hundreds of confidential documents. Mr. Dickerson further 
     testified that he gave Mr. Huang 12 finished intelligence 
     reports--10 classified ``secret'' and 2 classified 
     ``confidential''--which Mr. Huang kept in his possession 
     until the end of his tenure at the Commerce Department. Mr. 
     Dickerson further stated that Huang had a particular interest 
     in China and Taiwan.
       59. Appearing before the Senate Governmental Affairs 
     Committee on July 17, 1997, Mr. John H. Cobb, an attorney 
     with the staff of the Governmental Affairs Committee, 
     testified that Mr. Huang had over 300 contacts (phone 
     conversations, faxes and meetings) with the Lippo Group and 
     Lippo-related individuals during his tenure at the Commerce 
     Department. Many of these calls were made from his Commerce 
     Department office. In addition, other calls were made from 
     the offices of Stephen's, Inc., a Little Rock-based 
     investment bank with an office across the street from the 
     Commerce Department, where Huang regularly went to send and 
     receive faxes and make phone calls.
       60. Shortly after he left the Commerce Department in 
     December, 1995, John Huang was appointed Finance Vice-
     Chairman of the DNC. During his 9 months at the DNC, he 
     raised $3.4 million, nearly half of which was returned as 
     illegal, inappropriate or suspect.

[[Page S7786]]

John Huang's Solicitation of Funds in the Presence of the President in 
                            the White House

       61. In his appearance before the Senate Governmental 
     Affairs Committee on September 16, 1997, Mr. Karl Jackson, a 
     former Assistant to the Vice President for National Security 
     Affairs from 1991 to 1993, testified that Mr. John Huang 
     solicited money in front of and within hearing distance of 
     the President in the White House. Mr. Jackson was present at 
     a coffee held in the Map Room of the White House on June 18, 
     1996 at which the President, John Huang, and eleven others 
     were present. Mr. Jackson testified that after everyone had 
     taken their seats and were listening to opening comments, Mr. 
     Huang stood up and said, ``Elections cost money, lots and 
     lots of money, and I am sure that every person in this room 
     will want to support the re-election of President Clinton.''
       62. A photograph taken of all of the attendees of the June 
     18 coffee at their seats demonstrates that Mr. Jackson, who 
     heard Mr. Huang clearly, sat four seats away from Mr. Huang. 
     The President was seated next to Mr. Jackson and only three 
     seats away from Mr. Huang. The President did not object to 
     Mr. Huang's comments or disassociate himself from them. A 
     true and correct copy of the photograph and a legend are 
     attached hereto as Exhibit   . All of the contents of the 
     attached photograph and legend are hereby incorporated by 
     reference as part of the factual and evidentiary basis for 
     the relief sought in this complaint.

   Mr. Wang Jun and the Possible Laundering of Foreign Contributions

       63. Mr. Wang Jun is the chairman of the state-owned China 
     International Trade and Investment Corp. (``CITIC''), a $21 
     billion conglomerate. One of CITIC's subsidiaries, Poly 
     Technologies, is one of Beijing's leading weapons companies 
     and has been tied to an attempt to smuggle $4 million worth 
     of AK-47s into the United States. Wang Jun is the son of Wang 
     Zing, who was the Vice President of China.
       64. In a deposition taken by the Senate Governmental 
     Affairs Committee on June 18, 1997, Ernest Green, a managing 
     director of the Washington office of Lehman Brothers 
     investment bank, stated that he had written a letter to Wang 
     Jun inviting him to the United States. At the time, Lehman 
     Brothers was competing for underwriting business in the 
     vastly expanding Chinese market.
       65. On February 5, 1996, a copy of Wang Jun's bio was faxed 
     to the DNC from Lehman Brothers' offices. A true and correct 
     copy of the fax of Wang Jun's bio received by the DNC is 
     attached hereto as Exhibit   . All of the contents of the 
     attached fax are hereby incorporated by reference as part of 
     the factual and evidentiary basis for the relief sought in 
     this complaint.
       66. On February 6, 1996, Wang Jun attended a coffee with 
     President Clinton at the White House. On the morning of this 
     coffee, Mr. Green contributed $50,000 to the DNC. A true and 
     correct copy of the check signed by Mr. Green's wife, Phyllis 
     Clause-Green, is attached hereto as Exhibit   . All of the 
     contents of the attached check are hereby incorporated by 
     reference as part of the factual and evidentiary basis for 
     the relief sought in this complaint.
       67. In his June 18, 1996 deposition, Mr. Green testified 
     that towards the end of February, he received a bonus of 
     approximately $50,000 from Lehman Brothers. Mr. Green had 
     already received a bonus of $114,961 on February 1, 1996. The 
     grant of a $50,000 bonus so quickly following Mr. Green's 
     $50,000 donation to the D.N.C. gives rise to the inference 
     that Lehman Brothers, not Mr. Green, was the true source of 
     the contribution to the DNC. Making contributions ``in the 
     name of another person'' is prohibited by FECA. 2 U.S.C. 
     441f.

     Vice President Gore and the Hsi Lai Buddhist Temple Fundraiser

       68. Vice President Gore appeared at a fundraiser in the Hsi 
     Lai Buddhist Temple in Los Angeles on April 29, 1996. The 
     fundraiser at the Temple was illegal since the Temple is a 
     tax-exempt institution which cannot engage in political 
     activity. The Vice President has maintained that he did not 
     know that the event at the Temple was a fundraiser.
       69. There is evidence that Vice President Gore did know 
     ahead of time that the Hsi Lai Temple event was a fundraiser. 
     In a deposition taken by the Senate Governmental Affairs 
     Committee on August 6, 1997, the Venerable Man-Ho, an 
     administrative assistant at the Hsi Lai Buddhist Temple, 
     stated that on March 15, 1996, there was a meeting at the 
     White House between Vice President Gore, Hsi Lai Temple 
     Venerable Master Hsing Yun, John Huang, and Maria Hsia. The 
     Los Angeles Times (9/5/97) has reported that Gore was invited 
     to visit the Temple during this meeting. The involvement at 
     the meeting of Huang (a DNC fundraiser) and Hsia (a long-time 
     Gore fundraiser) should have suggested to Gore that the 
     Temple event was planned as a fundraiser from the beginning. 
     The presence of Huang and Hsia at the Temple when Gore 
     arrived should have further suggested to Vice President Gore 
     that this event was a fundraiser.
       70. Following the March 15 meeting, Vice President Gore 
     responded via e-mail to an aide (Kimberly H. Tilley) who 
     inquired about whether the Vice President could attend a New 
     York event the night before the April 29 Los Angeles trip. In 
     his e-mail, Vice President Gore stated ``If we have already 
     booked the fundraisers, then we have to decline.'' This 
     demonstrates that the Vice President knew that the Temple 
     event was a fundraiser, since he used the plural term 
     ``fundraisers'' and the only acknowledged fundraiser he 
     attended on April 29 was a dinner at a home near San Jose. A 
     true and correct copy of a print-out of the Vice President's 
     e-mail message to Kimberly Tilley is attached hereto as 
     Exhibit   . All of the contents of the attached print-out are 
     hereby incorporated by reference as part of the factual and 
     evidentiary basis for the relief sought in this complaint.
       71. The facts outlined above constitute sufficient specific 
     and credible evidence to make a prima facie case that the 
     President, Vice President, and other high-ranking executive 
     branch officials conspired to violate the Federal campaign 
     finance laws in order to raise large sums of money to spend 
     on the 1996 presidential campaign. The Attorney General has 
     therefore violated the letter and the spirit of the 
     Independent Counsel Statute by failing to appoint an 
     independent counsel to investigate these allegations.

 Johnny Chung, Loral, Inc. and the Launching of American Satellites by 
                                 China

       72. On March 14, 1996, the White House announced that 
     President Clinton had decided to transfer control over export 
     licensing for communications satellites from the State 
     Department to the Commerce Department. This decision makes it 
     much easier for American companies to get permission to 
     export their satellites to be launched by Chinese rockets. 
     (The New York Times, 5/17/98). In February, 1998, the White 
     House gave permission to Loral Space and Communications Ltd. 
     to launch one of its satellites on a Chinese rocket. (The 
     Washington Post, 5/17/98)
       73. One of the parties that benefitted from the waivers and 
     eased export restrictions is China Aerospace Corporation, a 
     state-owned company with interests in satellite technology, 
     missile sales and rocket launches. Contracts to launch 
     American satellites are crucial to the financial viability of 
     these ventures. (The New York Times, 5/15/98)
       74. Democratic fundraiser Johnny Chung has told Department 
     of Justice investigators that an executive from China 
     Aerospace named Liu Chao-Ying gave him $300,000 to donate to 
     the Democrats' 1996 campaign. According to Mr. Chung, Ms. Liu 
     told him that the money originated with Chinese military 
     intelligence. Mr. Chung has stated that he funneled $100,000 
     of this money into Democratic party coffers. (The New York 
     Times, 5/16/98)
       75. Liu Chao-Ying is a lieutenant colonel in China's 
     People's Liberation Army and vice-president of China 
     Aerospace International Holdings, Ltd., the Hong Kong arm of 
     China Aerospace Corporation. Ms. Liu's father, General Liu, 
     was China's top military officer and a member of the 
     Politburo of China's Communist party. (The New York Times, 5/
     15/98)
       76. Johnny Chung brought Ms. Liu to two fundraisers 
     attended by the President on July 22, 1996. The first 
     fundraiser was a $1,000 a plate affair at the Beverly Hilton. 
     The second fundraiser was a $25,000 per couple dinner at the 
     home of a private donor. At the dinner, Ms. Liu had her 
     picture taken with President Clinton. (The New York Times, 
     5/15/98)
       77. Two American companies, Loral Space and Communications 
     Ltd. and Hughes Electronic Corp., also benefited from the 
     waivers and eased export restrictions on commercial 
     satellites. These companies wanted permission to launch their 
     satellites on Chinese rockets to cut costs and shorten the 
     waiting period prior to launch. These companies repeatedly 
     lobbied the White House to allow them to launch their 
     satellites on Chinese rockets. (The New York Times, 5/17/98)
       78. In 1996, a rocket carrying a $200 million Loral 
     satellite crashed upon launch from China. Following this 
     crash, scientists from Loral and Hughes allegedly advised the 
     Chinese on how to improve their guidance systems by sharing 
     technology that had not been cleared for export. (The 
     Washington Post, 5/17/98) A classified Pentagon report 
     concluded that the technology transferred to the Chinese by 
     these companies can be used to significantly improve the 
     accuracy of China's long-range missiles aimed at the United 
     States. (The Chicago Tribune, 4/13/98)
       79. The Justice Department started a criminal investigation 
     to determine if Loral and Hughes had illegally transferred 
     technology to the Chinese. That investigation was still 
     underway in February, 1998, when Hughes and Loral petitioned 
     the White House for another waiver to launch a satellite from 
     China. The Justice Department objected to this waiver, 
     arguing that its ability to pursue its investigation would be 
     severely hindered if the government allowed Loral and Hughes 
     to return to China under the same arrangement they had 
     allegedly abused two years earlier. The White House granted 
     the waiver. (The Washington Post, 5/17/98)
       80. According to an official familiar with this 
     investigation, the White House decision, ``just about killed 
     a major investigation involving a very sensitive national 
     security issue. On the one hand you have investigators and 
     prosecutors needing to be taken seriously so they can gather 
     information, and then on the other hand the White House is 
     saying that suspicions . . . are not serious enough to keep 
     these companies from going back and doing it all over 
     again.'' (The Washington Post, 5/17/98)
       81. Loral's Chief Executive Officer, Bernard L. Schwartz, 
     was the single largest donor to the Democratic party in 1996. 
     According to

[[Page S7787]]

     the Center for Responsive Politics, Mr. Schwartz gave 
     $632,000 in ``soft money'' donations to the DNC in advance of 
     the 1996 elections. (The Washington Post, 5/17/98). According 
     to the Center for Responsive Politics, Mr. Schwartz has given 
     an additional $421,000 to Democrats in the current election 
     cycle. (The Washington Post, 5/6/98)


  III. Behavior of the Attorney General and the Department of Justice

 A. Failure of the Justice Department's Campaign Finance Investigation

       82. Attorney General Reno has repeatedly insisted that 
     there is no need to appoint an independent counsel to 
     investigate the campaign finance activity during the 1996 
     presidential election because the Department of Justice's own 
     Campaign Finance Task Force was conducting a professional and 
     effective investigation. Yet in the two years it has been 
     conducting its investigation, the Task Force has proved 
     unable to handle this matter.
       83. In March, 1996, it was revealed that Vice President 
     Gore had solicited campaign contributions from his White 
     House office.
       84. For more than five months following Vice President 
     Gore's public defense of his phone calls, Justice Department 
     investigators did not review Vice President Gore's assertion 
     that he acted legally in seeking these contributions from his 
     White House office in 1995-96 and solicited only soft money.
       85. On September 3, the Washington Post reported that more 
     than $120,000 raised by Vice President Gore through these 
     phone calls had actually been deposited into legally 
     restricted ``hard money'' accounts maintained by the DNC. 
     This report was based on White House and DNC records that had 
     been available to the public. Only after reading the report, 
     Attorney General Reno ordered a 30-day review of the Vice 
     President's phone calls, the first step in the legal 
     procedure leading to appointment of an independent counsel.
       86. On September 5, the Attorney General acknowledged that 
     she learned of the deposits to hard money accounts from the 
     press: ``The first I heard of it was when I saw the article 
     in the Washington Post . . . . It is my understanding that 
     this is the first time the public integrity section learned 
     of it, as well.''
       87. On September 20, the Justice Department announced that 
     Attorney General Reno had decided to open a review of 
     President Clinton's fund raising calls from the Oval Office. 
     On September 22, the Washington Post reported that the 
     records that convinced Attorney General Reno to open this 
     review had been turned over to the Justice Department task 
     force several months prior to the decision to open the 
     review, but the Task Force had not examined the documents 
     until that week. The delay in examination was attributed to 
     confused document-handling procedures within the campaign 
     finance task force.
       88. On September 11, 1997, Attorney General Reno, FBI 
     Director Freeh and CIA Director Tenet briefed the Senate 
     Governmental Affairs Committee on some matters relating to 
     the campaign finance investigation. At this briefing it was 
     revealed that the Department of Justice had critical 
     information in its files for two years relating to possible 
     illegal contributions without advising the Governmental 
     Affairs Committee without knowing it had the information in 
     the first place.
       89. Specifically, CIA Director Tenet advised the Committee 
     that a particular individual (whose identity is confidential) 
     who had been identified in many news accounts as a major 
     foreign contributor to political campaigns and campaign 
     committees, made these contributions as part of a plan of the 
     government of China to buy influence in the United States 
     government through political contributions. According to 
     Senator Arlen Specter, FBI Director Freeh further advised the 
     Committee that one of the reports upon which the briefing was 
     based had been in the FBI's files for over two years, since 
     September/October 1995, and a second report had been on 
     file since January, 1997.
       90. On September 16, 1997, Senator Arlen Specter made the 
     following comments about the September 11 briefing from the 
     floor of the Senate: ``In those briefings, Senators learned 
     that the Department of Justice had critical information in 
     its files for a long time on the issue of possible illegal 
     foreign contributions without advising the Governmental 
     Affairs Committee and, apparently, without knowing it had the 
     information or acting on it. That again shows the necessity 
     for Independent Counsel to be appointed to investigate the 
     1996 Federal campaign illegalities and irregularities.''
       91. These failures of the Justice Department Campaign 
     Finance Task Force have been attributed in part to a policy, 
     pattern and practice which prevented the task force from 
     investigating the President, Vice President and other high 
     level officials covered by the Independent Counsel Statute 
     (``covered persons.'')
       92. On October 3, 1997, the Washington Post reported that 
     Justice Department prosecutors determined that the law 
     prohibited them from looking at the activities of ``covered 
     persons'' unless presented with ``specific'' and ``credible'' 
     allegations that such covered persons had committed a crime. 
     This approach prevented the Justice Department prosecutors 
     from focusing on or even interviewing senior administration 
     officials, thus insuring that covered persons would be among 
     the last implicated in any possible misdeeds. According to 
     one Justice Department lawyer involved in the investigation, 
     ``You can't ask someone whether a covered person committed a 
     crime.'' That approach and mindset demonstrated the DoJ Task 
     Force could not and did not handle this matter thus calling 
     for Independent Counsel.
       93. The Act does not mandate such a passive investigatory 
     approach. The Act requires ``specific and credible'' evidence 
     of wrongdoing by covered persons before the Attorney General 
     is required to appoint an independent counsel. Nowhere does 
     the Act require ``specific and credible evidence'' of 
     wrongdoing before the Department of Justice can investigate a 
     covered person on its own.
       94. This policy demonstrates that the Justice Department 
     has simply ignored evidence of violations by covered persons 
     and, contrary to its public pronouncements, has failed to 
     conduct a competent investigation of the evidence that has 
     been presented to it.

                  B. Estoppel of the Attorney General

       95. In her May 14, 1993 opening statement before the Senate 
     Committee on Governmental Affairs on the reauthorization of 
     the Independent Counsel Statute, Attorney General Reno 
     stated: ``The reason that I support the concept of an 
     independent counsel with statutory independence is that there 
     is an inherent conflict whenever senior Executive Branch 
     officials are to be investigated by the Department and its 
     appointed head, the Attorney General. The Attorney General 
     serves at the pleasure of the President . . . . It is 
     absolutely essential for the public to have confidence in the 
     system and you cannot do that when there is conflict or an 
     appearance of conflict in the person who is, in effect, the 
     chief prosecutor. There is an inherent conflict here, and I 
     think that is why this Act is so important.''
       96. Commenting on the Independent Counsel Statute, Attorney 
     General Reno, at the same May 14, 1993 reauthorization 
     hearing, stated: ``The Independent Counsel Act was designed 
     to avoid even the appearance of impropriety in the 
     consideration of allegations of misconduct by high-level 
     Executive Branch officials and to prevent, as I have said, 
     the actual or perceived conflicts of interest. The Act thus 
     served as a vehicle to further the public's perception of 
     fairness and thoroughness in such matters, and to avert even 
     the most subtle influences that may appear in an 
     investigation of highly-placed Executive officials.''
       97. During most of her tenure in office, Attorney General 
     Reno has interpreted the Act in a manner consistent with 
     these statements. On seven previous occasions she sought 
     appointment of independent counsels when presented with 
     evidence of possible violations by covered officials:
       A. On May 11, 1998, Attorney General Reno requested the 
     appointment of an independent counsel to investigate 
     allegations that Labor Secretary Alexis Herman accepted 
     payments in return for directing clients towards a consulting 
     firm operated by her friend and a colleague.
       B. On February 11, 1998, Attorney General Reno requested 
     the appointment of an independent counsel to investigate 
     allegations that Interior Secretary Bruce Babbitt allowed 
     contributions to the Democratic party to influence his policy 
     decisions.
       C. In November of 1996, Attorney General Reno requested the 
     appointment of an independent counsel to investigate 
     allegations that Eli Segal, head of the AmeriCorps program, 
     raised illegal campaign contributions.
       D. In July of 1995, Attorney General Reno requested the 
     appointment of an independent counsel to investigate 
     allegations that former Commerce Secretary Ron Brown 
     improperly accepted a $50,000 payment from a former business 
     partner and then filed inaccurate financial disclosure 
     statements.
       E. In March of 1995, Attorney General Reno requested the 
     appointment of an independent counsel to investigate 
     allegations that former Housing and Urban Development 
     Secretary Henry Cisneros misled the FBI about payments he 
     made to his former mistress.
       F. In September of 1994, Attorney General Reno requested 
     the appointment of an independent counsel to investigate 
     allegations that former Agriculture Secretary Mike Espy 
     violated the law by accepting gifts from companies regulated 
     by his Department.
       G. In January of 1994, Attorney General Reno requested the 
     appointment of an independent counsel to investigate 
     President Clinton's Whitewater real estate venture.
       98. Congress relied upon the Attorney General's statements 
     and record when amending and then reauthorizing the 
     Independent Counsel Statute subsequent to the hearing. 
     Accordingly, no Senator saw a need to amend the statute to 
     clarify or emphasize the requirement that independent counsel 
     be appointed in circumstances such as those reflected in the 
     facts recited above.
       99. Given the Attorney General's statements and pattern of 
     behavior, and Congress' detrimental reliance thereon, 
     Attorney General Reno is estopped from refusing to appoint an 
     independent counsel in the instant case.

                        C. Conflict of Interest

       100. Section 591(c) of the Act provides that the Attorney 
     General ``may'' conduct a preliminary investigation of any 
     person whenever the Attorney General (1) receives specific 
     and credible information which is ``sufficient to constitute 
     grounds to investigate'' whether such person ``may have 
     violated'' any Federal criminal law, and (2) determines that 
     an investigation or prosecution of such

[[Page S7788]]

     person by the Department of Justice ``may result in a 
     personal, financial, or political conflict of interest.''
       101. The independent Counsel statute presumes that it would 
     present a conflict of interest for the Attorney General to 
     investigate the President or Vice President.
       102. The Department of Justice campaign finance task force 
     has indicted five individuals with close ties to the 
     President and/or Vice President (as detailed below). 
     Accordingly, the investigation of the five individual 
     currently under indictment will inevitably involve the 
     Justice Department in investigating the President and Vice 
     President. In order to avoid the conflict of interest 
     presented by such an investigation, the Attorney General 
     should exercise her discretion under the Act and appoint an 
     independent counsel.
     Howard Glicken
       Finance Vice Chairman of the DNC during the 1996 campaign.
       Raised over $2 million for the Democratic party during the 
     1996 campaign.
       Made over 70 visits to the Clinton White House.
       Served as Vice President Gore's Florida Finance Chairman 
     during his 1988 Presidential bid.
     Maria Hsia
       Accompanied Vice President Gore on a trip to Taiwan paid 
     for by a Buddhist organization in 1989.
       Organized a $250-a-plate Beverly Hills fund-raiser for 
     Gore's 1990 Senate re-election campaign.
       Helped organize April 29, 1996 fund-raising lunch at the 
     Hsi Lai Buddhist Temple attended by Vice President Gore which 
     raised $140,000 for the DNC.
     Yah Lin ``Charlie'' Trie
       Owned a Chinese Restaurant in Little Rock, Arkansas, 
     frequented by President Clinton during his tenure as Governor 
     of Arkansas.
       Raised $640,000 for President Clinton's legal defense fund 
     in 1995-96.
       Raised $645,000 for the Democratic party in 1995-96.
       Made at least 23 visits to the Clinton White House.
     Johnny Chung
       Contributed $366,000 to the DNC between August 1994 and 
     August 1996.
       Contributed $50,000 to the DNC on March 9, 1995. Handed 
     check to Hillary Clinton's Chief of Staff, Maggie Williams, 
     at the White House.
       Two days later, Mr. Chung and a delegation of six Chinese 
     officials were admitted to watch President Clinton tape his 
     weekly radio address.
       Made at least 49 visits to the Clinton White House.
      Pauline Kanchanalak
       Raised $679,000 for the Democratic Party and candidates.
       Visited the Clinton White House 26 times.
       Appointed Managing Trustee of the DNC.
       Recommended by the White House for a position on an 
     executive trade policy committee.

   D. Additional Facts relating to the Attorney General's Refusal to 
                      Appoint Independent Counsel

 Letters to Attorney General Reno from the Senate and House Judiciary 
                         Committees and Others

       103. On March 13, 1997, Senate Judiciary Committee Chairman 
     Hatch and all Republican members of the Committee sent a 
     letter to Attorney General Reno setting forth, in great 
     detail, evidence of involvement by individuals and 
     associations, including foreign interests, that point to 
     potential involvement by senior Executive Branch officials. 
     The letter also notes the ``inherent conflict of interest'' 
     in the Attorney General investigating the Executive Branch, 
     and calls on the Attorney General to commence a preliminary 
     investigation. A true and correct copy of the March 13, 1997 
     letter is attached as Exhibit ----. All of the contents of 
     the attached letter are hereby incorporated by reference as 
     part of the factual and evidentiary basis for the relief 
     sought in this complaint.
       104. On April 14, 1997, the Attorney General responded by 
     letter to Chairman Hatch that she would not initiate a 
     preliminary investigation under the Act. A true and correct 
     copy of the April 14, 1997 letter is attached hereto as 
     Exhibit ----. All of the contents of the attached letter are 
     hereby incorporated by reference as part of the factual and 
     evidentiary basis for the relief sought in this complaint.
       105. On October 11, 1996 Senator John McCain wrote to the 
     Attorney General requesting that she appoint an independent 
     counsel. Senator McCain wrote to the Attorney General again 
     on October 29, 1996 in a joint House-Senate letter. True and 
     correct copies of the October 11, 1996 and October 29, 1996 
     letters are attached hereto as Exhibit ---- and ----, 
     respectively. The allegations contained in Exhibits ---- and 
     ---- are incorporated herein by reference. All of the 
     contents of the attached letters are hereby incorporated by 
     reference as part of the factual and evidentiary basis for 
     the relief sought in this complaint.
       106. On September 3, 1997, House Judiciary Committee 
     Chairman Hyde and all of the Republican members of the 
     Committee sent a letter to Attorney General Reno setting 
     forth, in great detail, the alleged wrongdoings of the 
     Clinton Administration in the 1996 campaign. The letter 
     requests that the Attorney General apply for the appointment 
     of an independent counsel to investigate these matters. A 
     true and correct copy of the September 3, 1997 letter is 
     attached as Exhibit   . All of the contents of the attached 
     letter are hereby incorporated by reference as part of the 
     factual and evidentiary basis for the relief sought in this 
     complaint.
       107. On November 13, 1997, House Judiciary Committee 
     Chairman Hyde and a majority of the Republican members of the 
     Committee sent a letter to Attorney General Reno setting 
     forth, in great detail, the allegation that the U.s. 
     Department of the Interior made policy changes in exchange 
     for campaign contributions. The letter calls on Attorney 
     General Reno to immediately request appointment of an 
     independent counsel to investigate these allegations. A true 
     and correct copy of the November 13, 1997 letter is attached 
     as Exhibit   . All of the contents of the attached letter are 
     hereby incorporated by reference as part of the factual and 
     evidentiary basis for the relief sought in this complaint.

 The Preliminary Investigations and Failure to Appoint an Independent 
                                Counsel

       108. On September 3, 1997, Attorney General Reno launched a 
     preliminary investigation under The Act into allegations that 
     Vice President Gore may have violated Federal law by making 
     fund-raising telephone calls from his office in the White 
     House.
       109. On October 14, 1997, Attorney General Reno launched a 
     preliminary investigation under The Act into allegations that 
     President Clinton may have violated Federal law by making 
     fund-raising telephone calls from the Oval Office.
       110. On November 25, 1997, Senator Arlen Specter wrote to 
     Attorney General Reno setting forth in great detail the 
     reasons why her focus on the issue of fund-raising telephone 
     calls in both preliminary investigations was too limited. 
     Senator Specter noted that there is ``substantial evidence of 
     wrongdoing which meets the specific and credible threshold in 
     the Independent Counsel Statute'' and cited five specific 
     examples of issues other than the telephone calls which 
     require appointment of independent counsel. A true and 
     correct copy of the November 25, 1997 letter is attached 
     as Exhibit  . All of the contents of the attached letter 
     are hereby incorporated by reference as part of the 
     factual and evidentiary basis for the relief sought in 
     this complaint.
       111. On December 2, 1997, Attorney General Reno announced 
     that she decided not to seek an independent counsel to 
     investigate these allegations against the President and Vice 
     President. On the same day, she formally advised the special 
     panel of three judges who oversee the appointment of 
     independent counsel that ``there are no reasonable grounds'' 
     for further investigation.
       112. On August 26, 1998, Attorney General Reno launched a 
     preliminary investigation under The Act into allegations that 
     Vice President Gore lied when he told investigators that he 
     did not know that a percentage of the money he raised from 
     the White House went into hard money accounts. The 
     investigation was initiated after the Department of Justice 
     received evidence that the Vice President had attended a 
     meeting in which the division of such funds into both hard 
     and soft money was discussed.
       113. On November 24, 1998, Attorney General Reno announced 
     that she decided not to seek an independent counsel to 
     investigate the allegations that Vice President Gore lied to 
     the campaign finance investigators. On the same day, she 
     formally advised the special panel of three judges who 
     oversee the appointment of independent counsels that ``there 
     are no reasonable grounds'' for further investigation of the 
     allegations against the Vice President.
       114. On September 1, 1998, Attorney General Reno launched a 
     preliminary investigation under The Act into allegations that 
     former White House deputy chief of staff Harold Ickes lied to 
     the Senate Governmental Affairs Committee about whether he 
     made efforts to aid the Teamsters Union in exchange for 
     campaign contributions.
       115. On November 30, 1998, at the end of the 90-day 
     preliminary investigation, Attorney General Reno decided to 
     delay her decision whether to appoint an independent counsel 
     to investigate Harold Ickes. On that date, Attorney General 
     Reno requested and received from the special three judge 
     panel a 60-day extension of the preliminary investigation 
     into Ickes.

 Rejection of Advice from Top Investigators to Appoint an Independent 
                                Counsel

       116. In deciding not to appoint an independent counsel, 
     Attorney General Reno rejected the advice that had been given 
     to her by two individuals she had placed at the top of the 
     Justice Department's campaign finance investigation: Louis 
     Freeh and Charles LaBella.
       117. On October 15, 1997, Attorney General Reno testified 
     before the House Judiciary Committee that she had given FBI 
     Director Louis Freeh a leading role in the Justice 
     Department's campaign finance inquiry and that no avenues of 
     investigation would be closed without Freeh's approval.
       118. On December 9, 1997, Director Freeh testified before 
     the House Committee on Government Reform and Oversight that 
     he had recommended to Attorney General Reno that she appoint 
     an independent counsel with respect to the campaign finance 
     investigation. It was later disclosed that in a 22-

[[Page S7789]]

     page memorandum to the Attorney General explaining his 
     conclusions, Director Freeh concluded that, ``It is difficult 
     to imagine a more compelling situation for appointing an 
     independent counsel.''
       119. In September, 1997, Attorney General Reno appointed 
     Charles G. LaBella to direct the Justice Department's 
     campaign finance investigation task force.
       120. On May 3, 1998, Mr. LaBella issued a statement 
     confirming that he had recommended to Attorney General Reno 
     that she appoint an independent counsel to investigate 
     whether President Clinton and Vice President Gore violated 
     the law by making telephone solicitations from their offices.
       121. On July 16 or 17, 1998, Mr. LaBella delivered a 
     detailed report to Attorney General Reno arguing that she had 
     no alternative but to seek an independent prosecutor to 
     investigate political fund-raising abuses in President 
     Clinton's reelection campaign. In particular, Mr. LaBella 
     concluded that there is enough specific and credible evidence 
     of wrongdoing by high-ranking officials to trigger the 
     mandatory provisions of the Independent Counsel statute. The 
     report was based on all of the evidence gathered by the 
     Department's task force including confidential evidence and 
     grand jury testimony not available to the public.
       122. September, 1997, Attorney General Reno appointed James 
     V. DeSarno Jr. to serve as special F.B.I. agent in charge of 
     the campaign finance investigation task force.
       123. On August 4, 1998, Mr. DeSarno testified before the 
     House Committee on Government Reform and Oversight that he 
     agreed with the conclusion in Mr. LaBella's memo that 
     Attorney General Reno has no alternative but to seek an 
     independent counsel to investigate campaign finance 
     violations.

              Reliance upon Advice from Secondary Advisors

       124. In deciding not to appoint independent counsel, 
     Attorney General Reno relied primarily upon the advice of two 
     individuals further removed from the investigation than 
     Freeh, LaBella and DeSarno: Lee Radek and Robert Litt.
       125. Robert. S. Litt has plated an active role in the 
     meetings in which Attorney General Reno has concluded not to 
     appoint Independent Counsel. Mr. Litt was nominated to be 
     chief of the Criminal Division of the Department of Justice 
     in 1995, but was never confirmed for this position. He 
     currently serves as Principal Associate Deputy Attorney 
     General and is the de facto head of the criminal division.
       126. Prior to moving to the Department of Justice, Mr. Litt 
     was the law partner of David Kendall, the President's private 
     attorney.
       127. Lee Radek is a career bureaucrat who currently serves 
     as chief of the Criminal Division's public integrity section. 
     Mr. Radek and the lawyers working under him have been among 
     the strongest advocates for keeping the inquiry inside the 
     Department of Justice. (New York Times, 12/11/97).
       128. Mr. Radek has been openly critical of the independent 
     counsel statute and has rejected the fundamental premise of 
     the law--that the Department of Justice should not be in 
     charge of investigating certain high officials in the 
     executive branch. According to Mr. Radek, ``The independent 
     counsel statute is an insult. It's a clear enunciation by the 
     legislative branch that we cannot be trusted on certain 
     species of cases.'' (New York Times, 7/6/97) Radek also 
     complained that the Independent Counsel statute places his 
     prosecutors in a no-win situation, ``If we do very well in 
     our investigation, we have to turn the case over to an 
     independent counsel. If we don't find anything, then we're 
     criticized for not making the case.'' (New York Times, 7/6/
     97)

 Special Standing of the Senate and House Judiciary Committees to Sue 
           for Enforcement of the Independent Counsel Statute

       129. The Act provides that: ``The Committee on the 
     Judiciary of either House of the Congress, or a majority of 
     majority party members or a majority of all nonmajority party 
     members of either such committee may request in writing that 
     the Attorney General apply for the appointment of an 
     independent counsel.'' 28 U.S.C. 592(g)(1).
       130. The Attorney General must respond in writing to such 
     request and report to the Committees whether she has begun or 
     will begin a preliminary investigation of the matters with 
     respect to which the request was made, and the reasons for 
     her decision. 28 U.S.C. 592(g)(2).
       131. This specific inclusion of the Judiciary Committees 
     within the framework of the Act and the role granted these 
     Committees thereunder is evidence that Congress intended to 
     create procedural rights--including the right to sue for 
     enforcement--in members of the Judiciary Committees.
       132. Both the D.C. Circuit and the Ninth Circuit have made 
     specific reference to the fact that members of the Judiciary 
     Committees have been given a special oversight role within 
     the scheme of the Act and each court has stated that this 
     role is evidence that Congress intended to create broad 
     procedural rights in the members of these Committees. See 
     Banzhaf v. Smith, 737 F.2d. 1167 (D.C. Cir. 1984) and Dellums 
     v. Smith, 797 F.2d 817 (9th Cir. 1986).


                  FIRST COUNT (For a Writ of Mandamus)

       133. Plaintiffs repeat and reallege all of the foregoing 
     allegations in the Complaint as if set forth at length 
     herein.
       134. Defendant, Attorney General Reno, has been presented 
     with specific and credible evidence pertaining to possible 
     violations of criminal law by covered persons which is 
     sufficient to create reasonable grounds to believe that 
     further investigation is warranted.
       135. Given this evidence, Attorney General Reno is required 
     under the Act to make an application to the special division 
     of the circuit court for appointment of an independent 
     counsel.
       136. Notwithstanding the duties imposed on her under the 
     Act and repeated requests by Plaintiffs, the Attorney General 
     has refused to apply to the special division of the circuit 
     court for appointment of an independent counsel.
       137. The failure of the Attorney General to apply for 
     appointment of an independent counsel despite the evidence 
     that has been presented to her is a violation of her 
     mandatory duty to do so under the Act or, in the alternative, 
     is a gross abuse of her discretion to do so under the Act.
       138. The failure of the Attorney General to apply for 
     appointment of an independent counsel injures the plaintiffs, 
     who have requested that she do so in accordance with their 
     special authority under the Act and who have supplied her 
     with information sufficient to trigger such an appointment 
     under the Administrative Procedures Act.
       WHEREFORE, the Plaintiffs respectfully pray that the Court 
     require the Defendant, the Attorney General of the United 
     States Janet Reno, to apply to the special division of the 
     circuit court for the appointment of an independent counsel 
     to investigate evidence that criminal violations may have 
     occurred in the 1996 presidential campaign involving covered 
     persons, including possibly the President and/or the Vice 
     President.


  SECOND COUNT (For a Court Order under the Administrative Procedures 
                                  Act)

       139. Plaintiffs repeat and reallege all of the foregoing 
     allegations in the Complaint as if set forth at length 
     herein.
       140. Despite the specific and credible evidence that has 
     been presented to her, the Attorney General has unlawfully 
     withheld and unreasonably delayed applying for the 
     appointment of an independent counsel.
       141. The failure of the Attorney General to apply for 
     appointment of an independent counsel injures the plaintiffs, 
     who have requested that she do so in accordance with their 
     special authority under the Act and who have supplied her 
     with information sufficient to trigger such an appointment 
     under the Act.
       WHEREFORE, the Plaintiffs respectfully pray that the Court 
     require the Defendant, the Attorney General of the United 
     States Janet Reno, to apply to the special division of the 
     circuit court for the appointment of an independent counsel 
     to investigate evidence that criminal violations may have 
     occurred in the 1996 presidential campaign involving covered 
     persons, including possibly the President and/or the Vice 
     President.


                    THIRD COUNT (For a Court Order)

       142. Plaintiffs repeat and reallege all of the foregoing 
     allegations in the Compliant as if set forth at length 
     herein.
       143. The failure of the Attorney General to apply for the 
     appointment of an independent counsel despite the specific 
     and credible evidence that has been presented to her is a 
     gross abuse of any discretion she may have to do so under the 
     Act.
       144. The failure of the Attorney General to apply for 
     appointment of an independent counsel effectively blocks the 
     proper and orderly administration of justice in the instant 
     case.
       145. The failure of the Attorney General to apply for 
     appointment of an independent counsel injures the plaintiffs, 
     who have requested that she do so in accordance with their 
     special authority under the Act and who have supplied her 
     with information sufficient to trigger such an appointment 
     under the Act.
       WHEREFORE, the Plaintiffs respectfully pray that the Court 
     exercise its inherent power under common law to issue an 
     order appointing an independent counsel to investigate 
     evidence that criminal violations may have occurred in the 
     1996 presidential campaign involving covered persons, 
     including possibly the President and/or the Vice President.


   FOURTH COUNT (For Specific Performance under Promissory Estoppel)

       146. Plaintiffs repeat and reallege all of the foregoing 
     allegations in the Complaint as if set forth at length 
     herein.
       147. In her May 14, 1993 statement before the Senate 
     Committee on Governmental Affairs on the reauthorization of 
     the Independent Counsel Statute (quoted above), Attorney 
     General Reno made statements which assured the Committee and 
     the Senate that she shared their interpretation of the 
     Independent Counsel Statute and that she understood her 
     obligation to appoint an independent counsel in circumstances 
     such as those reflected in the facts recited above.
       148. On four prior occasions during her tenure in office, 
     Attornet General Reno has applied for appointment of an 
     independent counsel. This pattern of conduct further assured 
     the Committee and the Senate that she understood her 
     obligation to appoint an independent counsel in circumstances 
     such as those recited in the facts above.
       149. The member of the U.S. Senate relied upon Attorney 
     General's statements and record when amending and then 
     reauthorizing the Independent Counsel Statute subsequent to 
     the hearing. Accordingly, no Senator saw a need to amend the 
     statute to clarify or emphasize the requirement that 
     independent counsel be appointed in circumstances such as 
     those reflected in the facts recited above.

[[Page S7790]]

       150. The failure of the Attorney General to apply for 
     appointment of an independent counsel injures the plaintiffs, 
     who have requested that she do so in accordance with their 
     special authority under the Act and who have supplied her 
     with information sufficient to trigger such an appointment 
     under the Act.
       WHEREFORE, the Plaintiffs respectfully pray that the Court 
     exercise its power under the common law doctrine of 
     promissory estoppel to issue an order appointing an 
     independent counsel to investigate evidence that criminal 
     violations may have occurred in the 1996 presidential 
     campaign involving covered persons, including possibly the 
     President and/or the Vice President.
       Dated: December   , 1998.
           Respectfully submitted,
                                                    ------ ------,
                                          Attorney for Plaintiffs.
  Mr. SPECTER. I thank the Chair for the extra time, and I yield the 
floor.

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