[Federal Register Volume 64, Number 131 (Friday, July 9, 1999)]
[Rules and Regulations]
[Pages 37038-37044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17327]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Parts 0 and 600

[A.G. Order No. 2232-99]


Office of Special Counsel

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This order amends the Code of Federal Regulations to provide 
regulations concerning Attorney General appointment of Special Counsel 
to investigate and, when appropriate, to prosecute matters when the 
Attorney General concludes that extraordinary circumstances exist such 
that the public interest would be served by removing a large degree of 
responsibility for a matter from the Department of Justice. These 
regulations replace the procedures for appointment of independent 
counsel pursuant to the Independent Counsel Reauthorization Act of 
1994.

EFFECTIVE DATES: July 1, 1999.

FOR FURTHER INFORMATION CONTACT: John C. Keeney, Deputy Assistant 
Attorney General, Criminal Division, U.S. Department of Justice, 
Washington, D.C. 20530, (202) 514-2621.

SUPPLEMENTARY INFORMATION:

Background

    The Attorney General is promulgating these regulations to replace 
the procedures set out in the Independent Counsel Reauthorization Act 
of 1994. These regulations seek to strike a balance between 
independence and accountability in certain sensitive investigations, 
recognizing that there is no perfect solution to the problem. The 
balance struck is one of day-to-day independence, with a Special 
Counsel appointed to investigate and, if appropriate, prosecute matters 
when the Attorney General concludes that extraordinary circumstances 
exist such that the public interest would be served by removing a large 
degree of responsibility for the matter from the Department of Justice. 
The Special Counsel would be free to structure the investigation as he 
or she wishes and to exercise independent prosecutorial discretion to 
decide whether charges should be brought, within the context of the 
established procedures of the Department. Nevertheless, it is intended 
that ultimate responsibility for the matter and how it is handled will 
continue to rest with the Attorney General (or the Acting Attorney 
General if the Attorney General is personally recused in the matter); 
thus, the regulations explicitly acknowledge the possibility of review 
of specific decisions reached by the Special Counsel.
    The regulations also remove Sec. 0.14, setting forth procedures for 
Special Independent Counsels for members of Congress. The regulations 
in that section have been suspended since April 19, 1989. 54 FR 15752.

Section-by-Section Discussion

Section 600.1  Grounds for Appointing a Special Counsel

    ``The Attorney General, or in cases in which the Attorney General 
is recused, the Acting Attorney General, will appoint a Special Counsel 
when he or she determines that criminal investigation of a person or 
matter is warranted and--
    (a) That investigation or prosecution of that person or matter by a 
United States Attorney's Office or litigating Division of the 
Department of Justice would present a conflict of interest for the 
Department or other extraordinary circumstances; and
    (b) That under the circumstances, it would be in the public 
interest to appoint an outside Special Counsel to assume responsibility 
for the matter.''

Section 600.2  Alternatives Available to the Attorney General

    ``When matters are brought to the attention of the Attorney General 
that might warrant consideration of appointment of a Special Counsel, 
the Attorney General may:
    (a) Appoint a Special Counsel;
    (b) Direct that an initial investigation, consisting of such 
factual inquiry or legal research as the Attorney General deems 
appropriate, be conducted in order to better inform the decision; or
    (c) Conclude that under the circumstances of the matter, the public 
interest would not be served by removing the investigation from the 
normal processes of the Department, and that the appropriate component 
of the Department should handle the matter. If the Attorney General 
reaches this conclusion, he or she may direct that appropriate steps be 
taken to mitigate any conflicts of interest, such as recusal of 
particular officials.''
Discussion
    There are occasions when the facts create a conflict so 
substantial, or the exigencies of the situation are such that any 
initial investigation might taint the subsequent investigation, so that 
it is appropriate for the Attorney General to immediately appoint a 
Special Counsel. In other situations, some initial investigation, 
whether factual or legal, may be appropriate to better inform the 
Attorney General's decision. This provision is intended to make it 
clear that a variety of approaches, even in cases that might create an 
apparent conflict of interest, may be appropriate, depending on the 
facts of the matter.

Section 600.3  Qualifications of the Special Counsel

    ``(a) An individual named as Special Counsel shall be a lawyer with 
a reputation for integrity and impartial decisionmaking, and with 
appropriate experience to ensure both that the investigation will be 
conducted ably, expeditiously and thoroughly, and that investigative 
and prosecutorial decisions will be supported by an informed 
understanding of the criminal law and Department of Justice policies. 
The Special Counsel shall be selected from outside the United States 
Government. Special Counsels shall agree that their responsibilities as 
Special Counsel shall take first precedence in their professional 
lives, and that it may be necessary to devote their full time to the 
investigation, depending on its complexity and the stage of the 
investigation.
    ``(b) The Attorney General shall consult with the Assistant 
Attorney General for Administration to ensure an appropriate method of 
appointment, and to ensure that a Special Counsel undergoes an 
appropriate background investigation and a detailed review of ethics 
and conflicts of interest issues. A Special Counsel shall be appointed 
as a `confidential employee' as defined in 5 U.S.C. 7511(b)(2)(C).''

Section 600.4  Jurisdiction

    ``(a) Original Jurisdiction. The jurisdiction of a Special Counsel 
shall be established by the Attorney General. The Special Counsel will 
be provided with a specific factual statement of the matter to be 
investigated. The jurisdiction of a Special Counsel shall also include 
the authority to investigate and prosecute federal crimes committed in 
the course of, and with intent to interfere with, the Special Counsel's 
investigation, such as perjury, obstruction of justice, destruction of 
evidence, and intimidation of witnesses;

[[Page 37039]]

and to conduct appeals arising out of the matter being investigated 
and/or prosecuted.
    ``(b) Additional Jurisdiction. If in the course of his or her 
investigation the Special Counsel concludes that additional 
jurisdiction beyond that specified in his or her original jurisdiction 
is necessary in order to fully investigate and resolve the matters 
assigned, or to investigate new matters that come to light in the 
course of his or her investigation, he or she shall consult with the 
Attorney General, who will determine whether to include the additional 
matters within the Special Counsel's jurisdiction or assign them 
elsewhere.''
Discussion
    Under these regulations, it is intended that a Special Counsel's 
jurisdiction will be stated as an investigation of specific facts. The 
regulations also recognize, however, that accommodations can be made as 
necessary throughout the course of the investigation, with the Attorney 
General's approval. This provision establishes a protocol whereby 
Special Counsels are provided with an appropriate description of the 
boundaries of their investigation, with the full recognition that 
adjustments to that jurisdiction may be required.
    Paragraph (b) establishes a single procedure through which a 
variety of different jurisdictional issues can be resolved. For 
example, a Special Counsel assigned responsibility for an alleged false 
statement about a government program may request additional 
jurisdiction to investigate allegations of misconduct with respect to 
the administration of that program; a Special Counsel may conclude that 
investigating otherwise unrelated allegations against a central witness 
in the matter is necessary to obtain cooperation; or a Special Counsel 
may come across evidence of additional, unrelated crimes by targets of 
his or her investigation. Rather than leaving the issue to argument and 
misunderstanding as to whether the new matters are included within a 
vague category of ``related matters,'' the regulations clarify that the 
decision as to which component would handle such new matters would be 
made by the Attorney General. The Special Counsel would report such 
matters to the Attorney General, and the Attorney General would decide 
whether to grant the Special Counsel jurisdiction over the additional 
matters.
    ``(c) Civil and Administrative Jurisdiction. If in the course of 
his or her investigation the Special Counsel determines that 
administrative remedies, civil sanctions or other governmental action 
outside the criminal justice system might be appropriate, he or she 
shall consult with the Attorney General with respect to the appropriate 
component to take any necessary action. A Special Counsel shall not 
have civil or administrative authority unless specifically granted such 
jurisdiction by the Attorney General.''
Discussion
    Paragraph (c) is intended to clarify that the Special Counsel's 
jurisdiction will cover only the criminal aspects of the matters within 
his or her jurisdiction, unless other jurisdiction is specifically 
granted by the Attorney General.

Section 600.5  Staff

    ``A Special Counsel may request the assignment of appropriate 
Department employees to assist the Special Counsel. The Department 
shall gather and provide the Special Counsel with the names and resumes 
of appropriate personnel available for detail. The Special Counsel may 
also request the detail of specific employees, and the office for which 
the designated employee works shall make reasonable efforts to 
accommodate the request. The Special Counsel shall assign the duties 
and supervise the work of such employees while they are assigned to the 
Special Counsel. If necessary, the Special Counsel may request that 
additional personnel be hired or assigned from outside the Department. 
All personnel in the Department shall cooperate to the fullest extent 
possible with the Special Counsel.''
Discussion
    This provision, providing for the assignment of appropriate 
personnel to assist the Special Counsel, also includes assignment of 
needed investigative resources from the Federal Bureau of 
Investigation. It is anticipated that most personnel will be Department 
of Justice employees provided by detail to the Special Counsel, 
although the regulation provides for additional employment from outside 
the Department when necessary.

Section 600.6  Powers and Authority

    ``Subject to the limitations in the following paragraphs, the 
Special Counsel shall exercise, within the scope of his or her 
jurisdiction, the full power and independent authority to exercise all 
investigative and prosecutorial functions of any United States 
Attorney. Except as provided in this part, the Special Counsel shall 
determine whether and to what extent to inform or consult with the 
Attorney General or others within the Department about the conduct of 
his or her duties and responsibilities.''

Section 600.7  Conduct and Accountability

    ``(a) A Special Counsel shall comply with the rules, regulations, 
procedures, practices and policies of the Department of Justice. He or 
she shall consult with appropriate offices within the Department for 
guidance with respect to established practices, policies and procedures 
of the Department, including ethics and security regulations and 
procedures. Should the Special Counsel conclude that the extraordinary 
circumstances of any particular decision would render compliance with 
required review and approval procedures by the designated Departmental 
component inappropriate, he or she may consult directly with the 
Attorney General.''
Discussion
    Review and approval procedures are the way in which the Department 
typically addresses the most sensitive legal and policy issues facing 
its prosecutors. Such matters are usually not dealt with by mandatory 
substantive rules; rather, the Department recognizes that even the most 
controversial and risky investigative or prosecutorial steps might in 
extraordinary circumstances be justified. Therefore, such issues are 
generally handled by requiring a variety of levels of review and 
approval before the step can be taken. Were Special Counsels to be 
exempt from these procedural requirements, they would be left without 
relevant controls and without Departmental guidance in the most 
sensitive situations.
    There are often sound institutional reasons for review and approval 
provisions that transcend the merits of any particular case. For 
example, the Department has concluded over time that the long-term 
interests in case law development, served by the requirement that the 
Solicitor General personally approve Departmental appeals, may outweigh 
the importance of any single prosecution. Finally, requiring compliance 
with review and approval procedures ensures that the Department's 
institutional judgment will be available to inform the Special 
Counsel's decisionmaking process in the particular case.
    This provision therefore will allow a wide range of independent 
decisionmaking by the Special Counsel, while at the same time it will 
help to guard against a Special Counsel becoming too insulated and 
narrow in

[[Page 37040]]

his or her view of the matter under investigation. Most review and 
approval procedures are conducted by and through long-term career 
Departmental officials with substantial and invaluable institutional 
memory and historical perspective.
    At the same time, this provision permits the Special Counsel in 
extraordinary circumstances to proceed without complying with the 
Department's required review and approval procedures by consulting with 
the Attorney General. This provides a substantial degree of independent 
decisionmaking to the Special Counsel, while enhancing his or her 
accountability for the decision. Should the Special Counsel determine 
that the extraordinary circumstances of a particular decision make it 
inappropriate to comply with the established rules, regulations, 
procedures, practices and policies of the Department, the review and 
approval process may be bypassed through direct consultation with the 
Attorney General.
    ``(b) The Special Counsel shall not be subject to the day-to-day 
supervision of any official of the Department. However, the Attorney 
General may request that the Special Counsel provide an explanation for 
any investigative or prosecutorial step, and may after review conclude 
that the action is so inappropriate or unwarranted under established 
Departmental practices that it should not be pursued. In conducting 
that review, the Attorney General will give great weight to the views 
of the Special Counsel. If the Attorney General concludes that a 
proposed action by a Special Counsel should not be pursued, the 
Attorney General shall notify Congress as specified in 
Sec. 600.9(a)(3).''
Discussion
    Paragraph (b) permits the Attorney General to determine, after a 
review in which substantial deference is given to the views of the 
Special Counsel, that an action is so inappropriate or unwarranted 
under established Departmental practices that it should not be pursued.
    ``(c) The Special Counsel and staff shall be subject to 
disciplinary action for misconduct and breach of ethical duties under 
the same standards and to the same extent as are other employees of the 
Department of Justice. Inquiries into such matters shall be handled 
through the appropriate office of the Department upon the approval of 
the Attorney General.
    (d) The Special Counsel may be disciplined or removed from office 
only by the personal action of the Attorney General. The Attorney 
General may remove a Special Counsel for misconduct, dereliction of 
duty, incapacity, conflict of interest, or for other good cause, 
including violation of Departmental policies. The Attorney General 
shall inform the Special Counsel in writing of the specific reason for 
his or her removal.''
Discussion
    Paragraphs (c) and (d) provide protection for a Special Counsel by 
providing that the Attorney General may remove the Special Counsel only 
for good cause, several examples of which are provided in the 
regulation. Violation of Departmental policies is specifically 
identified as a ground that may warrant removal. The willful violation 
of some policies might warrant removal or other disciplinary action, 
and a series of negligent or careless overlooking of important policies 
might similarly warrant removal or other disciplinary action. Such 
conduct also would be encompassed within the articulated standard of 
misconduct or dereliction of duty. There are, of course, other 
violations of Departmental policies and guidelines that would not 
ordinarily be grounds for removal or other disciplinary action.

Section 600.8 Notification and Reports by the Special Counsel

    ``(a) Budget. (1) A Special Counsel shall be provided all 
appropriate resources by the Department of Justice. Within the first 60 
days of his or her appointment, the Special Counsel shall develop a 
proposed budget for the current fiscal year with the assistance of the 
Justice Management Division for the Attorney General's review and 
approval. Based on the proposal, the Attorney General shall establish a 
budget for the operations of the Special Counsel. The budget shall 
include a request for assignment of personnel, with a description of 
the qualifications needed.
    (2) Thereafter, 90 days before the beginning of each fiscal year, 
the Special Counsel shall report to the Attorney General the status of 
the investigation, and provide a budget request for the following year. 
The Attorney General shall determine whether the investigation should 
continue and, if so, establish the budget for the next year.''
Discussion
    The annual report to the Attorney General and budget request for 
the coming year will help to ensure that a Special Counsel 
investigation does not continue indefinitely; it will be reviewed at 
least annually to determine whether the investigation should continue, 
or whether it has reached a point where it should be closed or where 
responsibility for the matter can be returned to the normal processes 
of the Department. This annual review will provide an opportunity for 
the Special Counsel to present his or her budget request for the 
upcoming year as well. It should be emphasized that this annual report 
is intended to be only a status report. The Special Counsel will not be 
subject to the day-to-day supervision of the Attorney General or any 
other Departmental official, and the annual report will not serve as a 
vehicle for ongoing supervision. Rather, the Attorney General will use 
the report to determine whether the investigation should continue, and 
what the budget for the coming year should be. For example, there may 
be no need for the Special Counsel to remain in office to handle final 
details, such as a routine appeal following a conviction.
    ``(b) Notification of Significant Events. The Special Counsel shall 
notify the Attorney General of events in the course of his or her 
investigation in conformity with the Departmental guidelines with 
respect to Urgent Reports.''
Discussion
    Paragraph (b) requires Special Counsels to notify the Attorney 
General in certain circumstances. Those circumstances are defined using 
the same standard as that governing United States Attorneys, who are 
required to notify the Attorney General or other Department officials 
before seeking an indictment in sensitive cases and at other 
significant investigative steps. A Special Counsel will be dealing with 
issues that are sensitive, with many possible repercussions, and 
experience has shown that such prosecutions are often as sensitive 
legally as they are politically. Given this sensitivity, notification 
of proposed indictments and other significant events in the course of 
the investigation, with the resulting opportunity for consultation, is 
a critical part of the mechanism through which the Attorney General can 
discharge his or her responsibilities with respect to the 
investigation.
    ``(c) Closing Documentation. At the conclusion of the Special 
Counsel's work, he or she shall provide the Attorney General with a 
confidential report explaining the prosecution or declination decisions 
reached by the Special Counsel.''
Discussion
    Much legitimate concern has been expressed about the Final Report 
requirement of the Independent Counsel Act, with respect to both the 
incentives

[[Page 37041]]

it creates to over-investigate a matter and the fact that, since it 
often becomes a public document, it can do harm to legitimate privacy 
interests. On the other hand, it is appropriate for any federal 
official to provide a written record upon completion of an assignment, 
both for historical purposes and to enhance accountability--
particularly a federal official who has functioned with substantial 
independence and little supervision. In major cases, federal 
prosecutors commonly document their decisions not to pursue a case, 
explaining the factual and legal reasons for the conclusions they have 
reached.
    The principal source of the problems with the Final Report 
requirement as set forth in the Independent Counsel Act is the fact 
that the Report typically has been made public, unlike the closing 
documentation of any other criminal investigation. This single fact 
both provides an incentive to over-investigate, in order to avoid 
potential public criticism for not having turned over every stone, and 
creates potential harm to individual privacy interests.
    Therefore, these regulations impose a limited reporting requirement 
on all Special Counsels, in the form of a summary final report to the 
Attorney General. This report will be handled as a confidential 
document, as are internal documents relating to any federal criminal 
investigation. The interests of the public in being informed of and 
understanding the reasons for the actions of the Special Counsel will 
be addressed in the final set of reporting requirements, discussed 
below.

Section 600.9 Notification and Reports by the Attorney General

    ``(a) The Attorney General will notify the Chairman and Ranking 
Minority Member of the Judiciary Committees of each House of Congress, 
with an explanation for each action--
    (1) Upon appointing a Special Counsel;
    (2) Upon removing any Special Counsel; and
    (3) Upon conclusion of the Special Counsel's investigation, 
including, to the extent consistent with applicable law, a description 
and explanation of instances (if any) in which the Attorney General 
concluded that a proposed action by a Special Counsel was so 
inappropriate or unwarranted under established Departmental practices 
that it should not be pursued.
    (b) The notification requirement in paragraph (a)(1) of this 
section may be tolled by the Attorney General upon a finding that 
legitimate investigative or privacy concerns require confidentiality. 
At such time as confidentiality is no longer needed, the notification 
will be provided.
    (c) The Attorney General may determine that public release of these 
reports would be in the public interest, to the extent that release 
would comply with applicable legal restrictions. All other releases of 
information by any Department of Justice employee, including the 
Special Counsel and staff, concerning matters handled by Special 
Counsels shall be governed by the generally applicable Departmental 
guidelines concerning public comment with respect to any criminal 
investigation, and relevant law.''
Discussion
    To help ensure congressional and public confidence in the integrity 
of the process, the regulations impose on the Attorney General these 
reporting requirements to the Judiciary Committees of the Congress. 
These reports will occur on three occasions: on the appointment of a 
Special Counsel, on the Attorney General's decision to remove a Special 
Counsel, and on the completion of the Special Counsel's work. These 
reports will be brief notifications, with an outline of the actions and 
the reasons for them.

Section 600.10 No Creation of Rights

    ``The regulations in this part are not intended to, do not, and may 
not be relied upon to create any rights, substantive or procedural, 
enforceable at law or equity, by any person or entity, in any matter, 
civil, criminal, or administrative.''

Certifications and Determinations

Administrative Procedure Act

    This rule relates to matters of agency management or personnel, and 
is therefore exempt from the usual requirements of prior notice and 
comment and a 30-day delay in the effective date. See 5 U.S.C. 
553(a)(2). Moreover, to the extent that rulemaking procedures would 
otherwise be applicable, the Department finds that this rule would be 
exempted from the requirements of prior notice and comment as a rule of 
agency organization, procedure, or practice. See 5 U.S.C. 553(b)(A). 
Similarly, the effective date of the rule need not be delayed for 30 
days after publication because the rule is not a ``substantive rule.'' 
See 5 U.S.C. 553(d); 5 U.S.C. 552(a)(1)(D). In any event, because the 
provisions of the Independent Counsel Reauthorization Act of 1994 
expire on June 30, 1999, the Attorney General has determined that it is 
imperative to have these rules governing the appointment and service of 
a Special Counsel in place as soon as possible. Accordingly, even if 
the rule were not exempt from the usual requirements of prior notice 
and comment and a 30-day delay in the effective date, there would be 
``good cause'' for issuing this rule without prior notice and comment 
and without a 30-day delay in the effective date. See 5 U.S.C. 
553(b)(B); 5 U.S.C. 553(d)(3).

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. It is a rule relating to agency management or personnel and is 
therefore excluded from the scope of a covered ``rule'' for purposes of 
Chapter 8 of Title 5, U.S.C. See 5 U.S.C. 804(3)(B). Moreover, to the 
extent that this rule would be considered to be a rule of agency 
organization, procedure, or practice, it is excluded from the scope of 
a covered ``rule'' pursuant to 5 U.S.C. 804(3)(C). The provisions of 
Part 600 relate to the Attorney General's appointment of a Special 
Counsel as an employee of the Department of Justice, the procedures for 
defining the jurisdiction of the Special Counsel, and the requirements 
for consultation or approval within the Department. If the Attorney 
General determines, in some particular case, to appoint a Special 
Counsel, the Special Counsel would assume responsibility for an 
investigation or prosecution that would otherwise be under the 
responsibility of a litigating Division of the Department or a United 
States Attorney's Office, but the Special Counsel would nevertheless be 
serving under the Attorney General's authority as provided in this 
rule. For these reasons, the Department has determined that this rule 
does not substantially affect the rights or obligations of non-agency 
parties.
    Accordingly, because this action is not a covered ``rule,'' it is 
exempt from the requirement for the Department to submit a report to 
each House of Congress and to the Comptroller General before this rule 
can take effect, as provided in 5 U.S.C. 801(a)(1).

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving 
it, certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities.

[[Page 37042]]

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review. The Department 
of Justice has determined that this is not a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866, and that it 
relates to a matter of agency organization, management, or personnel. 
See Executive Order 12866, 3(d)(3). Accordingly, this rule has not been 
reviewed by the Office of Management and Budget.

Executive Order 12612

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This regulation will not result in the expenditure by State, local, 
and tribal government, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

List of Subjects

28 CFR Part 0

    Authority delegations (Government agencies), Government employees, 
Organization and functions (Government agencies), Whistleblowing.

28 CFR Part 600

    Authority delegations (Government agencies), Conflict of interests, 
Crime, Government employees, Investigations.
    Accordingly, by virtue of the authority vested in me as Attorney 
General, including 5 U.S.C. 301 and 28 U.S.C. 509 and 510, chapters I 
and VI of title 28 of the Code of Federal Regulations, are amended as 
follows:

PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE

    1. The authority citation for part 0 continues to read as follows:

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.


Sec. 0.14  [Removed]

    2. Section 0.14 is removed.
    3. Part 600 is revised to read as follows:

PART 600--GENERAL POWERS OF SPECIAL COUNSEL

Sec.
600.1  Grounds for appointing a Special Counsel.
600.2  Alternatives available to the Attorney General.
600.3  Qualifications of the Special Counsel.
600.4  Jurisdiction.
600.5  Staff.
600.6  Powers and authority.
600.7  Conduct and accountability.
600.8  Notification and reports by the Special Counsel.
600.9  Notification and reports by the Attorney General.
600.10  No creation of rights.

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.


Sec. 600.1  Grounds for appointing a Special Counsel.

    The Attorney General, or in cases in which the Attorney General is 
recused, the Acting Attorney General, will appoint a Special Counsel 
when he or she determines that criminal investigation of a person or 
matter is warranted and--
    (a) That investigation or prosecution of that person or matter by a 
United States Attorney's Office or litigating Division of the 
Department of Justice would present a conflict of interest for the 
Department or other extraordinary circumstances; and
    (b) That under the circumstances, it would be in the public 
interest to appoint an outside Special Counsel to assume responsibility 
for the matter.


Sec. 600.2  Alternatives available to the Attorney General.

    When matters are brought to the attention of the Attorney General 
that might warrant consideration of appointment of a Special Counsel, 
the Attorney General may:
    (a) Appoint a Special Counsel;
    (b) Direct that an initial investigation, consisting of such 
factual inquiry or legal research as the Attorney General deems 
appropriate, be conducted in order to better inform the decision; or
    (c) Conclude that under the circumstances of the matter, the public 
interest would not be served by removing the investigation from the 
normal processes of the Department, and that the appropriate component 
of the Department should handle the matter. If the Attorney General 
reaches this conclusion, he or she may direct that appropriate steps be 
taken to mitigate any conflicts of interest, such as recusal of 
particular officials.


Sec. 600.3  Qualifications of the Special Counsel.

    (a) An individual named as Special Counsel shall be a lawyer with a 
reputation for integrity and impartial decisionmaking, and with 
appropriate experience to ensure both that the investigation will be 
conducted ably, expeditiously and thoroughly, and that investigative 
and prosecutorial decisions will be supported by an informed 
understanding of the criminal law and Department of Justice policies. 
The Special Counsel shall be selected from outside the United States 
Government. Special Counsels shall agree that their responsibilities as 
Special Counsel shall take first precedence in their professional 
lives, and that it may be necessary to devote their full time to the 
investigation, depending on its complexity and the stage of the 
investigation.
    (b) The Attorney General shall consult with the Assistant Attorney 
General for Administration to ensure an appropriate method of 
appointment, and to ensure that a Special Counsel undergoes an 
appropriate background investigation and a detailed review of ethics 
and conflicts of interest issues. A Special Counsel shall be appointed 
as a ``confidential employee'' as defined in 5 U.S.C. 7511(b)(2)(C).


Sec. 600.4  Jurisdiction.

    (a) Original jurisdiction. The jurisdiction of a Special Counsel 
shall be established by the Attorney General. The Special Counsel will 
be provided with a specific factual statement of the matter to be 
investigated. The jurisdiction of a Special Counsel shall also include 
the authority to investigate and prosecute federal crimes committed in 
the course of, and with intent to interfere with, the Special Counsel's 
investigation, such as perjury, obstruction of justice, destruction of 
evidence, and intimidation of witnesses; and to conduct appeals arising 
out of the matter being investigated and/or prosecuted.
    (b) Additional jurisdiction. If in the course of his or her 
investigation the Special Counsel concludes that additional 
jurisdiction beyond that specified in his or her original jurisdiction 
is necessary in order to fully investigate and resolve the matters

[[Page 37043]]

assigned, or to investigate new matters that come to light in the 
course of his or her investigation, he or she shall consult with the 
Attorney General, who will determine whether to include the additional 
matters within the Special Counsel's jurisdiction or assign them 
elsewhere.
    (c) Civil and administrative jurisdiction. If in the course of his 
or her investigation the Special Counsel determines that administrative 
remedies, civil sanctions or other governmental action outside the 
criminal justice system might be appropriate, he or she shall consult 
with the Attorney General with respect to the appropriate component to 
take any necessary action. A Special Counsel shall not have civil or 
administrative authority unless specifically granted such jurisdiction 
by the Attorney General.


Sec. 600.5  Staff.

    A Special Counsel may request the assignment of appropriate 
Department employees to assist the Special Counsel. The Department 
shall gather and provide the Special Counsel with the names and resumes 
of appropriate personnel available for detail. The Special Counsel may 
also request the detail of specific employees, and the office for which 
the designated employee works shall make reasonable efforts to 
accommodate the request. The Special Counsel shall assign the duties 
and supervise the work of such employees while they are assigned to the 
Special Counsel. If necessary, the Special Counsel may request that 
additional personnel be hired or assigned from outside the Department. 
All personnel in the Department shall cooperate to the fullest extent 
possible with the Special Counsel.


Sec. 600.6  Powers and authority.

    Subject to the limitations in the following paragraphs, the Special 
Counsel shall exercise, within the scope of his or her jurisdiction, 
the full power and independent authority to exercise all investigative 
and prosecutorial functions of any United States Attorney. Except as 
provided in this part, the Special Counsel shall determine whether and 
to what extent to inform or consult with the Attorney General or others 
within the Department about the conduct of his or her duties and 
responsibilities.


Sec. 600.7  Conduct and accountability.

    (a) A Special Counsel shall comply with the rules, regulations, 
procedures, practices and policies of the Department of Justice. He or 
she shall consult with appropriate offices within the Department for 
guidance with respect to established practices, policies and procedures 
of the Department, including ethics and security regulations and 
procedures. Should the Special Counsel conclude that the extraordinary 
circumstances of any particular decision would render compliance with 
required review and approval procedures by the designated Departmental 
component inappropriate, he or she may consult directly with the 
Attorney General.
    (b) The Special Counsel shall not be subject to the day-to-day 
supervision of any official of the Department. However, the Attorney 
General may request that the Special Counsel provide an explanation for 
any investigative or prosecutorial step, and may after review conclude 
that the action is so inappropriate or unwarranted under established 
Departmental practices that it should not be pursued. In conducting 
that review, the Attorney General will give great weight to the views 
of the Special Counsel. If the Attorney General concludes that a 
proposed action by a Special Counsel should not be pursued, the 
Attorney General shall notify Congress as specified in 
Sec. 600.9(a)(3).
    (c) The Special Counsel and staff shall be subject to disciplinary 
action for misconduct and breach of ethical duties under the same 
standards and to the same extent as are other employees of the 
Department of Justice. Inquiries into such matters shall be handled 
through the appropriate office of the Department upon the approval of 
the Attorney General.
    (d) The Special Counsel may be disciplined or removed from office 
only by the personal action of the Attorney General. The Attorney 
General may remove a Special Counsel for misconduct, dereliction of 
duty, incapacity, conflict of interest, or for other good cause, 
including violation of Departmental policies. The Attorney General 
shall inform the Special Counsel in writing of the specific reason for 
his or her removal.


Sec. 600.8  Notification and reports by the Special Counsel.

    (a) Budget. (1) A Special Counsel shall be provided all appropriate 
resources by the Department of Justice. Within the first 60 days of his 
or her appointment, the Special Counsel shall develop a proposed budget 
for the current fiscal year with the assistance of the Justice 
Management Division for the Attorney General's review and approval. 
Based on the proposal, the Attorney General shall establish a budget 
for the operations of the Special Counsel. The budget shall include a 
request for assignment of personnel, with a description of the 
qualifications needed.
    (2) Thereafter, 90 days before the beginning of each fiscal year, 
the Special Counsel shall report to the Attorney General the status of 
the investigation, and provide a budget request for the following year. 
The Attorney General shall determine whether the investigation should 
continue and, if so, establish the budget for the next year.
    (b) Notification of significant events. The Special Counsel shall 
notify the Attorney General of events in the course of his or her 
investigation in conformity with the Departmental guidelines with 
respect to Urgent Reports.
    (c) Closing documentation. At the conclusion of the Special 
Counsel's work, he or she shall provide the Attorney General with a 
confidential report explaining the prosecution or declination decisions 
reached by the Special Counsel.


Sec. 600.9  Notification and reports by the Attorney General.

    (a) The Attorney General will notify the Chairman and Ranking 
Minority Member of the Judiciary Committees of each House of Congress, 
with an explanation for each action--
    (1) Upon appointing a Special Counsel;
    (2) Upon removing any Special Counsel; and
    (3) Upon conclusion of the Special Counsels investigation, 
including, to the extent consistent with applicable law, a description 
and explanation of instances (if any) in which the Attorney General 
concluded that a proposed action by a Special Counsel was so 
inappropriate or unwarranted under established Departmental practices 
that it should not be pursued.
    (b) The notification requirement in paragraph (a)(1) of this 
section may be tolled by the Attorney General upon a finding that 
legitimate investigative or privacy concerns require confidentiality. 
At such time as confidentiality is no longer needed, the notification 
will be provided.
    (c) The Attorney General may determine that public release of these 
reports would be in the public interest, to the extent that release 
would comply with applicable legal restrictions. All other releases of 
information by any Department of Justice employee, including the 
Special Counsel and staff, concerning matters handled by Special 
Counsels shall be governed by the generally applicable Departmental 
guidelines concerning public comment with respect to any criminal 
investigation, and relevant law.

[[Page 37044]]

Sec. 600.10  No creation of rights.

    The regulations in this part are not intended to, do not, and may 
not be relied upon to create any rights, substantive or procedural, 
enforceable at law or equity, by any person or entity, in any matter, 
civil, criminal, or administrative.

    Dated: June 30, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-17327 Filed 7-8-99; 8:45 am]
BILLING CODE 4410-AR-P