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Independent counsel statute and Independent Counsel Accountability and Reform Act : hearing before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 892 ... February 29, 1996 online

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Online LibraryUnited States. Congress. House. Committee on the JIndependent counsel statute and Independent Counsel Accountability and Reform Act : hearing before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 892 ... February 29, 1996 → online text (page 1 of 17)
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INDEPENDENT COUNSEL STATUTE AND INDEPEND-
ENT COUNSEL ACCOUNTABIUH AND REFORM ACT



Y 4. J 89/1; 104/92

Independent Counsel Stitute )nd ^"^'^-^^Jjq-Q



BEFORE THE

SUBCOMMITTEE ON CRIME

OF THE

COMMITTEE ON THE JUDICIAKY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

SECOND SESSION

ON

H.R. 892

INDEPENDENT COUNSEL ACCOUNTABILITY AND REFORM ACT



FEBRUARY 29, 1996




Serial No. 92






"'^'■'^&n^-.


^








Printed for the use of the Committee on


the Judiciary


I


M , .


U.S. GOVERNMENT PRINTING OFFICE


3&-569 CC WASHINGTOri : 1996





For sale by the U.S. Govenunent Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-053841-6



//./,



ft INDEPENDENT COUNSEL STATUTI AND INDEPEND-
ENT COUNSa ACCOUNTABIUTV AND REFORM ACT

Y 4. J 89/1:104/92

Independent Counsel Statute and ^"^ • i"DT-NTp

BEFORE THE

SUBCOMMITTEE ON CRIME

OF THE

COMMITTEE ON THE JUDICIAEY
HOUSE OP REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

SECOND SESSION

ON

H.R. 892

INDEPENDENT COUNSEL ACCOUNTABILITY AND REFORM ACT



FEBRUARY 29, 1996



Serial No. 92










Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
35-569 CC WASHINGTON : 1996



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-053841-6



COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman



CARLOS J. MOORHEAD, California
F. JAMES SENSENBRENNER, JR.,

Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
MARTIN R. HOKE, Ohio
SONNY BONO, California
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, IHinois
BOB BARR, Georgia



JOHN CONYERS, JR., Michigan
PATRICIA SCHROEDER, Colorado
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
XAVIER BECERRA, Cahfomia
JOSE E. SERRANO, New York
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas



Alan F. Coffey, Jr., General Counsel I Staff Director
JUUAN Epstein, Minority Staff Director



Subcommittee on Crime

BILL McCOLLUM, Florida, Chairman

STEVEN SCHIFF, New Mexico CHARLES E. SCHUMER, New York

STEPHEN E. BUYER, Indiana ROBERT C. SCOTT, Virginia

HOWARD COBLE, North Carolina ZOE LOFGREN, California

FRED HEINEMAN, North Carolina SHEILA JACKSON LEE, Texas

ED BRYANT, Tennessee MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio
BOB BARR, Georgia

Paul J. McNulty, Chief Counsel

Glenn R. Schmitt, Counsel

Daniel J. Bryant, Assistant Counsel

Tom Diaz, Minority Counsel



(II)



CONTENTS



HEARING DATE



Page

February 29, 1996 1

TEXT OF BILL

H.R. 862 3

OPENING STATEMENT

McCollum, Hon. Bill, a Representative in Congress from the State of Florida,
and chairman, Subcommittee on Crime 1

WITNESSES

Bryson, Melvin J., Jr., Chief, Administrative Services Office, Administrative

Office of the U.S. Courts 104

Clark, David L., Director, Audit Oversight and Liaison, Accounting and Infor-
mation Management Division, General Accounting Office 100

Dickey, Hon. Jay, a Representative in Congress from the State of Arkansas ... 20

diGenova, Joseph E., former independent counsel, and partner, diGenova
& Toensing 65

Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois,

and chairman. Committee on the Judiciary 14

Keeney, John C, Acting Assistant Attorney General, Criminal Division, De-
partment of Justice 97

Mikva, Hon. Abner J., former White House Counsel, retired U.S. circuit
judge, and retired Member of Congress 40

Olson, Theodore B., partner, Gibson, Dunn & Crutcher 45

Walsh, Hon. Lawrence, E., former independent counsel, retired U.S. district
judge, and counsel to Crowe & Dunlevy 35



LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Biyson, Melvin J., Jr., Chief, Administrative Services Office, Administrative
Office of the U.S. Courts: Prepared statement 105

Claric, David L., Director, Audit Oversight and Liaison, Accounting and Infor-
mation Management Division, General Accounting Office: Prepared state-
ment 101

Dickey, Hon. Jay, a Representative in Congress from the State of Arkansas:
Prepared statement 23

diGenova, Joseph E., former independent counsel, and partner, diGenova

& Toensing: Prepared statement 70

Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois,

and chairman, Committee on the Judiciary: Prepared statement 18

Jackson Lee, Hon. Sheila, a Representative in Congress from the State of
Texas: Prepared statement 94

Keeney, John C, Acting Assistant Attorney General, Criminal Division, De-

Sartment of Justice: Prepared statement 98
:va, Hon. Abner J., former White House Counsel, retired U.S. circuit

judge, and retired Member of Congress: Prepared statement 43

Olson, Theodore B., partner, Gibson, Dunn & Crutcher: Prepared statement .. 48
Walsh, Hon. Lawrence, E., former independent counsel, retired U.S. district
judge, and counsel to Crowe &. Dunlevy: Prepared statement 38

APPENDIX
Material submitted for the hearing 115

(in)



C^JDEPENDENT COUNSEL STATUTE AND INDE-
PENDENT COUNSEL ACCOUNTABILITY AND
REFORM ACT



THURSDAY, FEBRUARY 29, 1996

House of Representatives,

Subcommittee on Crime,
Committee on the Judiciary,

Washington, DC.
The subcommittee met, pursuant to notice, at 9:39 a.m., in room
2141, Rayburn House Office Building, Hon. Bill McCollum (chair-
man of the subcommittee) presiding.

Present: Representatives Bill McCollum, Steven Schiff, Stephen
E. Buyer, Howard Coble, Fred Heineman, Ed Bryant of Tennessee,
Steve Chabot, Bob Barr, Charles E. Schumer, Robert C. Scott, Zoe
Lofgren, Sheila Jackson Lee, and Melvin L. Watt.
Also present: Representative John Conyers, Jr.
Staff present: Paul J. McNulty, chief counsel; Glenn R. Schmitt,
counsel; Audray L. Clement, secretary; and Tom Diaz, minority
counsel.

OPENING STATEMENT OF CHAIRMAN McCOLLUM

Mr. McCollum. This hearing of the Subcommittee on Crime will
come to order. Grood morning. Our hearing today examines the
Independent Counsel Act.

This law was enacted in 1978 in response to Watergate, and the
seemingly inability of our own Grovemment to investigate crimes
that may have been committed by senior administration officials.
When Congress drafted this statute, its basic purpose was to create
a process which would restore public confidence in the Govern-
ment's ability to impartially investigate alleged wrongdoing by
Government officials.

Since 1978, there have been 17 independent counsel investiga-
tions, four of which are ongoing. During those 18 years, the Gov-
ernment has spent almost $115 million on these investigations.
Some of the investigations have produced indictments and convic-
tions, while some have found no criminal laws were broken.

During this period also. Congress has amended the act three
times, allowed it to lapse for 2 years, and then reauthorized it
again in 1994 for 5 more years. Today we'll consider anew whether
this act is still necessary to promote the public's confidence in its
Government, and what changes, if any, need to be made to the act.

We'll also examine the bill H.R. 892, which proposes to modify
the act. We'll receive testimony from two former independent coun-

(1)



sels and from a person who was both the subject of an independent
counsel investigation, and who has represented others under inves-
tigation.

We will hear from representatives of the Greneral Accounting Of-
fice concerning the expenditures of the independent counsels. We'll
also hear from a former White House Counsel and Federal judge
who voted for the act when he was a Member of Congress and
served as Counsel to the President being investigated by an inde-
pendent counsel.

I hope that today we will explore together such questions as
whether time limits and spending limits should be placed on the
independent counsel investigations, whether these investigations
should remain secret until concluded, and whether the scope of
their investigations should be limited. Most importantly, I hope
that we will discuss whether the act is still needed now, 20 years
after Watergate. Questions about scope of jurisdiction of an inde-
pendent counsel have become a n^ajor issue. We must find the
proper balance between limited and efficient investigations by inde-
pendent counsels and sufficient flexibility to follow evidentiary
leads wherever they lead. We cannot have independent counsels
bogged down in endless jurisdictional disputes. That does not serve
anyone's best interest.

[The bill, H.R. 862, follows:]



104TII ('()X(iRESS
IsT Skssion



H. R. 892



To roautliorizi- tlic iiideiH-iuloiit counst'l statute, and for other jniqioses.



IN THE HOUSE OF REPRESEXTATRTIS

Fkhkiakv 10. 1995
Mr. DicKKV (for himself. ^Ir. SllAYs. Mr. I.NCLIS of Soutli C'amliua. and Mr.
B()NIM.>.\) iiiti-odueed tlie followiiifr bilh wliich was referred to the (^)m-
mittee on tlie Jiidieian'



A BILL



To reauthorize the independent counsel statute, and for other

purjioses.

1 Be it enacted hij the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the "Independent Counsel

5 Accountability and Reform Act of 1995".

6 SEC. 2. EXTENSION.

7 Section :)99 of title 28, United States Code, is

8 amended by striking: "Reauthorization Act of 1994" and

9 insertino: '" Accountability and Reform Act of 1995".



2

1 SEC. 3. BASIS FOR PRELIMINARY INVESTIGATION.

2 (a) Initial Receipt of Information'. — Section

3 r)91 of title 28. United States Code, is amended —

4 (1) in sul)seeti()n (a) —

5 (A) by strikino- "information" and inseit-

6 in^ "specific information from a credible source

7 that is": and

8 (B) by striking "may have" and inserting

9 "has";

10 (2) in subsection (c)(1)—

1 1 (A) by strikino- "information" and insert-

12 in«' "specific information from a credible source

13 that is"; and

14 (B) by striking "may have" and inserting

15 "has"; and

16 (3) by amejiding subsection (d) to read as fol-

17 lows:

18 "(d) Time Pekiod for Determixixg Need for

19 Preliminary Lwestkjatiox. — The Attorney General

20 shall determine, under subsection (a) or (c) (or section

21 .592(c)(2)). whether grounds to investigate exist not later

22 than 15 days after the information is first received. If

23 within that l.')-day jieriod the Attorney General deter-

24 mines that there is insufficient e\'ideiice of a ^^olation of

25 Federal criminal law refen'ed to in subsection (a), then

26 the Attorney General shall close the matter. If witliin that

•HR 892 ra



3

1 lo-day ))eii()d the Attorney General determines there is

2 sufficient e\ideiu'e of sneh a \i()lation, the Attorney Gen-

3 eral sliall, upon niakiu"- that determination, commenee a

4 i)rehniinaiy investigation with respect to that information.

5 If the Attorney General is unable to determine, within that

6 15-day period, whether there is sufficient e\idence of such

7 a \iolation, the Attorney General shall, at the end of that

8 15-day period, commence a preliminan' investigation with

9 respect to that information.".

10 (b) Re("eipt of iVdditioxal Ixfokjlvtiox. — Sec-

11 tion 592(c)(2) of title 28, United States Gode, is amended

12 l)v strikinji: "information" and inserting "specific informa-

13 tion from a crechble source that is".

14 SEC. 4. PROSECUTORIAL JURISDICTION OF INDEPENDENT

15 COUNSEL.

16 (a) PROSEcrTORLU. JURISDICTIOX. — Section 593(b)

17 of title 28. I'nited States Code, is amended —

18 (1) in paragi-aph (1) —

19 (A) by striking "define" and inserting

20 ", with specificity, define"; and

21 (B) by adding at the end the following:

22 "Such jurisdiction shall be hmited to the al-

23 leged \iolations of criminal law with respect to

24 which the Attorney General has requested the

25 a})pointment of the independent counsel, and

•HR 882 m



4

1 mattei*s directly related to such criminal \iola-

2 tioiis."; and

3 (2) by amending i)arajjriipli (3) to read as

4 follows:

5 "(3) S(X)PE OF PROSECUTORLVL JURISDIC-

6 TION. — In detinino: the independent counsel's pros-

7 ecutorial jurisdiction, the di\'ision of the court shall

8 assure that the independent counsel has adequate

9 authority to fully investigate and i)rosecute the al-

10 leged \iolations of criminal law with respect to which

1 1 the Attorney General has requested the appointment

12 of the independent counsel, and matters directly re-

13 lated to such criminal \iolations, including perjur\%

14 obstruction of justice, destruction of e\adence, and

15 intimidation of witnesses.".

16 (b) C()XF()RMlX(i Aaiexdmext. — Section 592(d) of

17 title 28, United States Code, is amended by striking "sub-

18 ject matter and all matters related to that subject matter"

19 and inserting "the alleged ^iolations of criminal law \\ith

20 respect to which the application is made, and matters di-

21 rectly related to such criminal \iolations".

22 SEC. 5. AUTHORITIES AND DUTIES OF INDEPENDENT

23 COUNSEL.

24 (a) Office Space.— Section 594(1)(3) of title 28,

25 United States Code, is amended to read as follows:

•HR 892 IH



o

1 "(3) Office space. — The Administrator of

2 (TOiieral Sor\ieos shall promptly i)ro\ide a]ipro))riato

3 office s))ace for each independent counsel. Such of-

4 tiee s])aee shall be within a Federal buildinj;: unless

5 the Administrator of General Senices determines

6 that other arrangements wcmld cost less.".

7 (b) Co.MPLLvxcE With Policies of the Dep.vkt-

8 MENT OF Justice. —

9 (1) .Lmexdmexts.— Section 594(f) of title 28,

10 United States Code, is amended —

11 (A) by striking: ", except where not pos-

12 sible," and inserting "at all times"; and

13 (B) by striking "enforcement of the crimi-

14 nal laws" and inserting "the enforcement of

15 criminal laws and the release of information re-

16 lating to criminal proceedings".

17 (2) Prior .uiexdments. — The amendments

18 made to section 594(f) of title 28, United States

19 Code, by section 3(e) of the Independent Counsel

20 Reauthorization Act of 1994 are repealed.

21 (c) Limitation on Expenditures. — Section 594 of

22 title 28. United States Code, as amended by subsection

23 ( a ) is amended by adding at the end the folloAnng:

24 "(n) Limitation on Expenditures. — No funds

25 may be ex}iended for the operation of any office of inde-

•HR 892 IH



8

6

1 pendent counsel after the end of the 2-year i)eriod after

2 its establisliment, except to the extent tliat an appr()i)ria-

3 tions Act enacted after such estabhshment specifically

4 makes available funds for such office for use after the end

5 of that 2 -year period.".

6 SEC. 6. REMOVAL, TERMINATION, AND PERIODIC RE-

7 APPOINTMENT OF INDEPENDENT COUNSEL.

8 (a) (iuouXDS FOR Remov.vl. — Section o96(a)(l) of

9 title 28, I'uited States Code, is amended by adding at the

10 end the following: "Failure of the independent counsel to

1 1 comply with the established policies of the Department of

12 Justice as required by section 594(f) or to comply with

13 section 594(.i) may be grounds for remo\ing that uide-

14 i)endent counsel from office for good cause under this sub-

15 section.".

16 (b) Tekmixatiox.— Section 596(b)(2) of title 28,

17 United States Code, is amended to read as follows:

18 "(2) Termixatiox by dimsiox of the

19 ("Oi'RT. — The di^ision of the court may terminate an

20 office of independent counsel at any time —

21 "(A) on its own motion,

22 "(B) upon the request of the Attorney

23 (ireneral. or

24 **(C) upon the petition of the subject of an

25 investigation conducted by such independent

•HR 892 IH



1 counsel, if the petition is made more than 2

2 years after the appointment of sneh independ-

3 ent counsel.

4 on the


1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Online LibraryUnited States. Congress. House. Committee on the JIndependent counsel statute and Independent Counsel Accountability and Reform Act : hearing before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 892 ... February 29, 1996 → online text (page 1 of 17)