§ 592. — Preliminary investigation and application for appointment of an independent counsel.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC592]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART II--DEPARTMENT OF JUSTICE
CHAPTER 40--INDEPENDENT COUNSEL
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 such matters as the Attorney General
considers appropriate in order to make a determination, under
subsection (b) or (c), on whether further investigation is
warranted, with respect to each potential violation, or allegation
of a violation, of criminal law. The Attorney General shall make
such determination not later than 90 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 such
determination not later than 90 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 such preliminary
investigation and the date of such commencement.
(2) Limited authority of attorney general.--(A) In conducting
preliminary investigations under this chapter, the Attorney General
shall have no authority to convene grand juries, plea bargain, grant
immunity, or issue subpoenas.
(B)(i) The Attorney General shall not base a determination under
this chapter 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 such person lacked the state of mind
required for the violation of criminal law.
(ii) The Attorney General shall not base a determination under
this chapter that there are no reasonable grounds to believe that
further investigation is warranted, upon a determination that such
person lacked the state of mind required for the violation of
criminal law involved, unless there is clear and convincing evidence
that the person lacked such 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 60 days, of the 90-day
period referred to in paragraph (1). The division of the court may,
upon a showing of good cause, grant such 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 reasonable 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.--Such notification 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
reasonable grounds to believe that further investigation is
warranted; or
(B) the 90-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 reasonable grounds exist
to warrant further investigation, 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 such 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 90 days after the date on which such additional information
is received; and
(B) otherwise comply with the provisions of this section
with respect to such 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 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 such
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 subsection
(a) or (c) of section 591, as the case may be. The report shall set
forth the reasons for the Attorney General's decision regarding such
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), such 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 such 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 such report, notification, application,
document, material, or memorandum as will not in the committee's
judgment prejudice the rights of any individual.
(Added Pub. L. 95-521, title VI, Sec. 601(a), Oct. 26, 1978, 92 Stat.
1868; amended Pub. L. 97-409, Secs. 2(a)(1), 4(b)-(e), Jan. 3, 1983, 96
Stat. 2039-2041; Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1295;
Pub. L. 103-270, Sec. 3(l), June 30, 1994, 108 Stat. 736.)
Amendments
1994--Subsec. (e). Pub. L. 103-270 inserted ``or as is deemed
necessary for law enforcement purposes'' after ``Except as otherwise
provided in this chapter''.
1987--Pub. L. 100-191 amended section generally, substituting
provisions relating to preliminary investigation and application for
appointment of an independent counsel for provisions relating to
application for appointment of an independent counsel.
1983--Subsec. (a). Pub. L. 97-409, Sec. 4(b), designated existing
provisions as par. (1), substituted, ``Upon receiving information that
the Attorney General determines is sufficient to constitute grounds to
investigate that any person covered by the Act has engaged in conduct
described in subsection (a) or (c) of section 591 of this title, the
Attorney General'' for ``The Attorney General, upon receiving specific
information that any of the persons described in section 591(b) of this
title has engaged in conduct described in section 591(a) of this
title,'', inserted ``In determining whether grounds to investigate
exist, the Attorney General shall consider--(A) the degree of
specificity of the information received, and (B) the credibility of the
source of the information.'', and added par. (2).
Subsec. (b)(1). Pub. L. 97-409, Secs. 2(a)(1)(A), 4(c), substituted
``that there are no reasonable grounds to believe that further
investigation or prosecution is warranted'' for ``that the matter is so
unsubstantiated that no further investigation or prosecution is
warranted'' and substituted ``independent counsel'' for ``special
prosecutor''.
Subsec. (c)(1). Pub. L. 97-409, Secs. 2(a)(1)(A), 4(d), substituted
``finds reasonable grounds to believe that further investigation or
prosecution is warranted'' for ``finds the matter warrants further
investigation or prosecution'' after ``preliminary investigation'',
``that there are no reasonable grounds to believe that further
investigation or prosecution is warranted'' for ``that the matter is so
unsubstantiated as not to warrant further investigation or
prosecution'', and ``independent counsel'' for ``special prosecutor'',
and inserted provision that in determining whether reasonable grounds
exist to warrant further investigation or prosecution, the Attorney
General shall comply with written or other established policies of the
Department of Justice with respect to the enforcement of criminal laws.
Subsec. (c)(2). Pub. L. 97-409, Sec. 2(a)(1)(A), substituted
``independent counsel'' for ``special prosecutor'' in provisions
following subpar. (B).
Subsec. (c)(2)(A). Pub. L. 97-409, Sec. 4(e)(1), substituted
``information sufficient to constitute grounds to investigate'' for
``specific information'' after ``receives additional''.
Subsec. (c)(2)(B). Pub. L. 97-409, Sec. 4(e)(2), substituted
``reasonable grounds exist to warrant'' for ``such information
warrants'' after ``appropriate, that''.
Subsecs. (d)(1), (e), (f). Pub. L. 97-409, Sec. 2(a)(1), substituted
``independent counsel'' for ``special prosecutor'' and ``independent
counsel's'' for ``special prosecutor's'' wherever appearing.
Effective Date of 1994 Amendment
Amendment by Pub. L. 103-270 applicable with respect to independent
counsels appointed before, on, or after June 30, 1994, see section 7(a)
of Pub. L. 103-270, set out as an Effective Date of 1994 Amendment;
Transition Provisions note under section 591 of this title.
Effective Date of 1987 Amendment
Amendment by Pub. L. 100-191 effective Dec. 15, 1987, and applicable
to proceedings initiated and independent counsels appointed on and after
Dec. 15, 1987, see section 6 of Pub. L. 100-191, set out as a note under
section 591 of this title.
Section Referred to in Other Sections
This section is referred to in sections 591, 593 of this title.
