28 U.S.C. § 594 : US Code - Section 594: Authority and duties of an independent counsel

Search 28 U.S.C. § 594 : US Code - Section 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 such 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 such
independent counsel considers necessary;
(3) appealing any decision of a court in any case or proceeding
in which such 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 per diem rate equal to
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), the independent counsel and the division of the court
shall consider, among other relevant factors -
(i) the cost to the Government of reimbursing such 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
such 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, such 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 such independent counsel's prosecutorial jurisdiction, and
the use of the resources and personnel necessary to perform such
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.
(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 identity
or prosecutorial jurisdiction of any independent counsel which
has not been disclosed under section 593(b)(4).
(e) Referral of Other 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 matters 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 such referral if the matter
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, except to the
extent that to do so would be inconsistent with the purposes of
this chapter, comply with the written or other established
policies of the Department of Justice respecting enforcement of
the criminal laws. To determine these policies and policies under
subsection (l)(1)(B), the independent counsel shall, except to
the extent that doing so would be inconsistent with the purposes
of this chapter, 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.
(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 fully and completely a
description of the work of the independent counsel, including
the disposition of all cases brought.
(2) Disclosure of information in reports. - The division of the
court may release to the Congress, the public, or any appropriate
person, such portions of a report made under this subsection as
the division of the court considers appropriate. The division of
the court shall make such orders as are appropriate to protect
the rights of any individual named in such 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 such report
for the purposes of receiving within a time limit set by the
division of the court any comments or factual information that
such 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 such 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 such 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 separate from
and independent 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) During the period in which an
independent counsel is serving under this chapter -
(i) such independent counsel, and
(ii) any person associated with a firm with which such
independent counsel is associated,
may not represent in any matter any person involved in any
investigation or prosecution under this chapter.
(B) During the period in which any person appointed by an
independent counsel under subsection (c) is serving in the office
of independent counsel, such 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. - (A) Each independent counsel and each person
appointed by that independent counsel under subsection (c) may
not, 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.
(B) Each independent counsel and each person appointed by that
independent counsel under subsection (c) may not, 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 such
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.
(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 such
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, such records
shall be so disclosed only by order of the court of
jurisdiction under rule 6(e) of the Federal Rules of Criminal
Procedure.
(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 Controls 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, except to the extent
that compliance would be inconsistent with the purposes of this
chapter.
(2) 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.
(3) 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. Such office space
shall be within a Federal building unless the Administrator of
General Services determines that other arrangements would cost
less. Until such 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.