§ 594. — Authority and duties 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: 28USC594]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART II--DEPARTMENT OF JUSTICE
CHAPTER 40--INDEPENDENT COUNSEL
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 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.
(Added Pub. L. 95-521, title VI, Sec. 601(a), Oct. 26, 1978, 92 Stat.
1869; amended Pub. L. 97-409, Secs. 2(a)(1), 6(a)-(c), Jan. 3, 1983, 96
Stat. 2039, 2041; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095;
Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1300; Pub. L. 103-270,
Sec. 3(a)-(f), (m), (o), June 30, 1994, 108 Stat. 732-734, 736; Pub. L.
104-208, div. A, title I, Sec. 101(a) [title I, Sec. 118], Sept. 30,
1996, 110 Stat. 3009, 3009-23.)
References in Text
Section 6103 of the Internal Revenue Code of 1986, referred to in
subsec. (a)(8), is classified to section 6103 of Title 26, Internal
Revenue Code.
The Federal Rules of Criminal Procedure, referred to in subsec.
(k)(1), (3)(B), are set out in the Appendix to Title 18, Crimes and
Criminal Procedure.
The enactment of the Independent Counsel Reauthorization Act of
1987, referred to in subsec. (k)(1), is the enactment of Pub. L. 100-
191, which was approved Dec. 15, 1987.
Amendments
1996--Subsec. (b)(3)(A). Pub. L. 104-208, Sec. 101(a) [title I,
Sec. 118(a), (b)], in second sentence substituted ``for successive 6-
month periods'' for ``by 6-months'' and ``independent counsel and the
division of the court certify'' for ``employee assigned duties under
subsection (l)(1)(A)(iii) certifies''.
Subsec. (b)(3)(B). Pub. L. 104-208, Sec. 101(a) [title I,
Sec. 118(c)], which directed the amendment of second sentence of subsec.
(b)(3)(A) by striking ``such employee'' and inserting ``the independent
counsel'' and ``the division of the court'', was executed to
introductory provisions of subsec. (b)(3)(B) by substituting ``the
independent counsel and the division of the court'' for ``such
employee'' to reflect the probable intent of Congress.
1994--Subsec. (b). Pub. L. 103-270, Sec. 3(b), designated existing
text as par. (1) and inserted heading, and added pars. (2) and (3).
Subsec. (c). Pub. L. 103-270, Sec. 3(c), substituted last sentence
for former last sentence which read as follows: ``No such employee may
be compensated at a rate exceeding the maximum rate of pay payable for
GS-18 of the General Schedule under section 5332 of title 5.''
Subsec. (d)(1). Pub. L. 103-270, Sec. 3(m), inserted at end ``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.''
Subsec. (f). Pub. L. 103-270, Sec. 3(e), designated existing
provisions as par. (1) and inserted heading, substituted ``shall, except
to the extent that to do so would be inconsistent with the purposes of
this chapter, comply'' for ``shall, except where not possible, comply'',
inserted at end ``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.'', and added par. (2).
Subsec. (h)(1)(B). Pub. L. 103-270, Sec. 3(o), struck out before
period at end ``, and the reasons for not prosecuting any matter within
the prosecutorial jurisdiction of such independent counsel''.
Subsec. (h)(3). Pub. L. 103-270, Sec. 3(f), added par. (3).
Subsec. (j)(5). Pub. L. 103-270, Sec. 3(d), added par. (5).
Subsec. (l). Pub. L. 103-270, Sec. 3(a), added subsec. (l).
1987--Pub. L. 100-191 amended section generally, substituting
subsecs. (a) to (k) for former subsecs. (a) to (g) which related to
similar subject matter.
1986--Subsec. (a)(8). Pub. L. 99-514 substituted ``Internal Revenue
Code of 1986'' for ``Internal Revenue Code of 1954''.
1983--Pub. L. 97-409, Sec. 2(a)(1)(A), substituted ``independent
counsel'' for ``special prosecutor'' in section catchline.
Subsec. (a). Pub. L. 97-409, Sec. 2(a)(1), substituted ``independent
counsel'' for ``special prosecutor'' wherever appearing and
``independent counsel's'' for ``special prosecutor's''.
Subsec. (a)(10). Pub. L. 97-409, Sec. 6(a), added par. (10).
Subsecs. (b), (c). Pub. L. 97-409, Sec. 2(a)(1)(A), substituted
``independent counsel'' for ``special prosecutor'' wherever appearing.
Subsecs. (d), (e). Pub. L. 97-409, Sec. 2(a)(1), substituted
``independent counsel'' for ``special prosecutor'' and ``independent
counsel's'' for ``special prosecutor's'' wherever appearing.
Subsec. (f). Pub. L. 97-409, Secs. 2(a)(1)(A), 6(b), substituted
``independent counsel'' for ``special prosecutor'', ``except where not
possible'' for ``to the extent that such special prosecutor deems
appropriate'', and ``written or other established policies'' for
``written policies''.
Subsec. (g). Pub. L. 97-409, Sec. 6(c), added subsec. (g).
Effective Date of 1994 Amendment; Transition Provisions
Amendment by Pub. L. 103-270 applicable with respect to independent
counsels appointed before, on, or after June 30, 1994, with transition
provisions relating to assignment of employee to certify expenditures
and relating to office space, travel and subsistence expenses, rates of
compensation, and reporting requirements established or modified by Pub.
L. 103-270, see section 7(a)-(e), (g) of Pub. L. 103-270, set out as a
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, but with the following provisions applicable to
previously initiated proceedings pending on Dec. 15, 1987: subsec.
(d)(2) (relating to reports by Attorney General on expenditures by
independent counsel, except that the first such report shall be made
only with respect to expenditures on or after Dec. 15, 1987), subsec.
(h)(1)(A) except that the 6-month periods described in subsec. (h)(1)(A)
of this section shall be calculated from Dec. 15, 1987, subsec. (i),
subsec. (k) of this section, and 90 days after Dec. 15, 1987, subsec.
(j), 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 593, 596, 597 of this title;
title 18 section 202.
