Special Counsel Independence and Integrity Act

II 116TH CONGRESS 1ST SESSION S. 71 To ensure independent investigations and judicial review of the removal of a special counsel, and for other purposes. IN THE SENATE OF THE UNITED STATES JANUARY 9, 2019 Mr. GRAHAM (for himself, Mr. COONS, Mr. TILLIS, and Mr. BOOKER) intro- duced the following bill; which was read twice and referred to the Com- mittee on the Judiciary A BILL To ensure independent investigations and judicial review of the removal of a special counsel, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Special Counsel Inde- 4 pendence and Integrity Act’’. 5 SEC. 2. DEPARTMENT OF JUSTICE SPECIAL COUNSEL. 6 (a) IN GENERAL.—Part II of title 28, United States 7 Code, is amended by inserting after chapter 40A the fol- 8 lowing: 9 VerDate Sep 11 2014 22:48 Jan 17, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 71 IS ‘‘CHAPTER 40B—SPECIAL COUNSEL 1 ‘‘Sec. ‘‘599K–1. Grounds for appointing a Special Counsel. ‘‘599K–2. Alternatives available to the Attorney General. ‘‘599K–3. Qualifications of the Special Counsel. ‘‘599K–4. Jurisdiction. ‘‘599K–5. Staff. ‘‘599K–6. Powers and authority. ‘‘599K–7. Conduct and accountability generally. ‘‘599K–8. Limitation on removal of Special Counsel and certain other officials. ‘‘599K–9. Notification and reports by the Special Counsel. ‘‘599K–10. Notification and reports by the Attorney General. ‘‘599K–11. No creation of rights. ‘‘§ 599K–1. Grounds for appointing a Special Counsel 2 ‘‘(a) IN GENERAL.—The Attorney General shall ap- 3 point a Special Counsel if the Attorney General determines 4 that— 5 ‘‘(1) criminal investigation of a person or mat- 6 ter is warranted; 7 ‘‘(2) investigation or prosecution of the person 8 or matter described in paragraph (1) by the office 9 of a United States attorney or litigating Division of 10 the Department of Justice (in this chapter referred 11 to as the ‘Department’) would present a conflict of 12 interest for the Department or other extraordinary 13 circumstances; and 14 ‘‘(3) under the circumstances, it would be in 15 the public interest to appoint an outside Special 16 Counsel to assume responsibility for the matter. 17 ‘‘(b) RECUSAL.—The Attorney General who has been 18 confirmed to that position by the Senate or, in the case 19 VerDate Sep 11 2014 22:48 Jan 17, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 71 IS of the vacancy, absence, disability, or recusal of the Attor- 1 ney General, the most senior Senate-confirmed officer of 2 the Department listed in section 508 who is not recused 3 from the matter shall exercise the authority under this 4 chapter. 5 ‘‘§ 599K–2. Alternatives available to the Attorney Gen- 6 eral 7 ‘‘(a) IN GENERAL.—When matters are brought to the 8 attention of the Attorney General that might warrant con- 9 sideration of appointment of a Special Counsel, the Attor- 10 ney General may— 11 ‘‘(1) appoint a Special Counsel in accordance 12 with this chapter; 13 ‘‘(2) direct that an initial investigation, con- 14 sisting of such factual inquiry or legal research as 15 the Attorney General determines appropriate, be 16 conducted in order to better inform the decision; or 17 ‘‘(3) conclude that under the circumstances of 18 the matter, the public interest would not be served 19 by removing the investigation from the normal proc- 20 esses of the Department, and that the appropriate 21 component of the Department should handle the 22 matter. 23 ‘‘(b) ADDITIONAL DIRECTION.—If the Attorney Gen- 24 eral reaches a conclusion described in subsection (a)(3), 25 VerDate Sep 11 2014 22:48 Jan 17, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 71 IS the Attorney General may direct that appropriate steps 1 be taken to mitigate any conflicts of interest, such as 2 recusal of particular officials. 3 ‘‘§ 599K–3. Qualifications of the Special Counsel 4 ‘‘(a) IN GENERAL.—An individual named as Special 5 Counsel under this chapter shall be— 6 ‘‘(1) a lawyer with a reputation for integrity 7 and impartial decisionmaking, and with appropriate 8 experience to ensure both that the investigation will 9 be conducted ably, expeditiously, and thoroughly, 10 and that investigative and prosecutorial decisions 11 will be supported by an informed understanding of 12 the criminal law and Department policies; and 13 ‘‘(2) selected from outside the United States 14 Government. 15 ‘‘(b) PRIORITY OF INVESTIGATION.—An individual 16 named as Special Counsel under this chapter shall agree 17 that the responsibilities of the individual as Special Coun- 18 sel shall take first precedence in the professional life of 19 the individual, and that it may be necessary to work full 20 time on the investigation, depending on the complexity of 21 the investigation and the stage of the investigation. 22 ‘‘(c) APPOINTMENT METHOD.— 23 ‘‘(1) IN GENERAL.—The Attorney General shall 24 consult with the Assistant Attorney General for Ad- 25 VerDate Sep 11 2014 22:48 Jan 17, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 71 IS ministration to ensure an appropriate method of ap- 1 pointment, and to ensure that a Special Counsel un- 2 dergoes an appropriate background investigation and 3 a detailed review of ethics and conflicts of interest 4 issues. 5 ‘‘(2) CONFIDENTIAL EMPLOYEE.—A Special 6 Counsel shall be appointed as a confidential em- 7 ployee, as described in section 7511(b)(2)(C) of title 8 5. 9 ‘‘§ 599K–4. Jurisdiction 10 ‘‘(a) ORIGINAL JURISDICTION.— 11 ‘‘(1) IN GENERAL.—The jurisdiction of a Spe- 12 cial Counsel appointed under this chapter shall be 13 established by the Attorney General, and shall in- 14 clude the authority to investigate and prosecute Fed- 15 eral crimes committed in the course of, and with in- 16 tent to interfere with, the Special Counsel’s inves- 17 tigation, such as perjury, obstruction of justice, de- 18 struction of evidence, and intimidation of witnesses, 19 and to conduct appeals arising out of the matter 20 being investigated or prosecuted. 21 ‘‘(2) STATEMENT OF THE MATTER TO BE IN- 22 VESTIGATED.—The Special Counsel shall be pro- 23 vided with a specific factual statement of the matter 24 to be investigated. 25 VerDate Sep 11 2014 22:48 Jan 17, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 71 IS ‘‘(b) ADDITIONAL JURISDICTION.—If in the course of 1 the investigation by a Special Counsel appointed under 2 this chapter, the Special Counsel concludes that additional 3 jurisdiction beyond that specified in the original jurisdic- 4 tion is necessary in order to fully investigate and resolve 5 the matters assigned, or to investigate new matters that 6 come to light in the course of the investigation, the Special 7 Counsel shall consult with the Attorney General, who shall 8 determine whether to include the additional matters within 9 the jurisdiction of the Special Counsel or assign them else- 10 where. 11 ‘‘(c) CIVIL AND ADMINISTRATIVE JURISDICTION.— 12 ‘‘(1) IN GENERAL.—If in the course of an in- 13 vestigation by a Special Counsel appointed under 14 this chapter, the Special Counsel determines that 15 administrative remedies, civil sanctions, or other 16 governmental action outside the criminal justice sys- 17 tem might be appropriate, the Special Counsel shall 18 consult with the Attorney General with respect to 19 the appropriate component to take any necessary ac- 20 tion. 21 ‘‘(2) LIMITATION.—A Special Counsel ap- 22 pointed under this chapter shall not have civil or ad- 23 ministrative authority unless specifically granted 24 such jurisdiction by the Attorney General. 25 VerDate Sep 11 2014 22:48 Jan 17, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 71 IS ‘‘§ 599K–5. Staff 1 ‘‘(a) IN GENERAL.—A Special Counsel appointed 2 under this chapter may request the assignment of appro- 3 priate personnel of the Department to assist the Special 4 Counsel. The Department shall gather and provide the 5 Special Counsel with the names and resumes of appro- 6 priate personnel available for detail. The Special Counsel 7 may also request the detail of specific personnel, and the 8 office for which the designated personnel work shall make 9 reasonable efforts to accommodate the request. 10 ‘‘(b) ASSIGNMENT OF DUTIES.—A Special Counsel 11 appointed under this chapter shall assign the duties and 12 supervise the work of personnel while they are assigned 13 to the Special Counsel. 14 ‘‘(c) HIRING OF ADDITIONAL PERSONNEL.—If nec- 15 essary, a Special Counsel appointed under this chapter 16 may request that additional personnel be hired or assigned 17 from outside the Department. 18 ‘‘(d) COOPERATION.—All personnel in the Depart- 19 ment shall cooperate to the fullest extent possible with a 20 Special Counsel appointed under this chapter. 21 ‘‘§ 599K–6. Powers and authority 22 ‘‘(a) IN GENERAL.—Subject to the limitations of this 23 chapter, a Special Counsel appointed under this chapter 24 shall exercise, within the scope of the jurisdiction of the 25 Special Counsel, the full power and independent authority 26 VerDate Sep 11 2014 22:48 Jan 17, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 71 IS to exercise all investigative and prosecutorial functions of 1 any United States attorney. 2 ‘‘(b) SPECIAL COUNSEL DISCRETION.—Except as 3 otherwise provided in this chapter, a Special Counsel ap- 4 pointed under this chapter shall determine whether and 5 to what extent to inform or consult with the Attorney Gen- 6 eral or others within the Department about the conduct 7 of the duties and responsibilities of the Special Counsel. 8 ‘‘§ 599K–7. Conduct and accountability generally 9 ‘‘(a) IN GENERAL.—A Special Counsel appointed 10 under this chapter shall— 11 ‘‘(1) comply with the rules, regulations, proce- 12 dures, practices, and policies of the Department; and 13 ‘‘(2) consult with appropriate offices within the 14 Department for guidance with respect to established 15 practices, policies, and procedures of the Depart- 16 ment, including ethics and security regulations and 17 procedures. 18 ‘‘(b) EXTRAORDINARY CIRCUMSTANCES.—If a Spe- 19 cial Counsel appointed under this chapter determines that 20 the extraordinary circumstances of any particular decision 21 would render compliance with required review and ap- 22 proval procedures by the designated departmental compo- 23 nent inappropriate, the Special Counsel may consult di- 24 rectly with the Attorney General. 25 VerDate Sep 11 2014 22:48 Jan 17, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 71 IS ‘‘(c) LIMITATION ON SUPERVISION.— 1 ‘‘(1) IN GENERAL.—A Special Counsel ap- 2 pointed under this chapter shall not be subject to 3 the day-to-day supervision of any official of the De- 4 partment, except that the Attorney General may re- 5 quest that the Special Counsel provide an expla- 6 nation for any investigative or prosecutorial step, 7 and may after review conclude that the action is so 8 inappropriate or unwarranted under established 9 practices of the Department that it should not be 10 pursued. 11 ‘‘(2) REVIEW.—In conducting a review de- 12 scribed in paragraph (1), the Attorney General shall 13 give great weight to the views of the Special Coun- 14 sel. If the Attorney General concludes that a pro- 15 posed action by a Special Counsel should not be pur- 16 sued, the Attorney General shall notify Congress in 17 accordance with section 599K–10(a)(3). 18 ‘‘(d) DISCIPLINARY ACTION FOR MISCONDUCT.—A 19 Special Counsel appointed under this chapter, and any 20 staff of the Special Counsel, shall be subject to disciplinary 21 action for misconduct and breach of ethical duties under 22 the same standards and to the same extent as are other 23 employees of the Department. Inquiries into such matters 24 VerDate Sep 11 2014 22:48 Jan 17, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 71 IS shall be handled through the appropriate office of the De- 1 partment upon the approval of the Attorney General. 2 ‘‘§ 599K–8. Limitation on removal of Special Counsel 3 and certain other officials 4 ‘‘(a) IN GENERAL.—A Special Counsel appointed 5 under this chapter, or any other official appointed by the 6 Attorney General who exercises a similar degree of inde- 7 pendence from the normal chain of command of the De- 8 partment, may be removed from office only by the per- 9 sonal action of an Attorney General who has been con- 10 firmed to that position by the Senate, or the most senior 11 Senate-confirmed officer of the Department listed in sec- 12 tion 508 who is not recused from the matter. 13 ‘‘(b) REMOVAL FOR CAUSE.—A Special Counsel or 14 other appointed official described in subsection (a) may 15 be removed only for misconduct, dereliction of duty, inca- 16 pacity, conflict of interest, or other good cause, including 17 violation of policies of the Department. 18 ‘‘(c) NOTICE OF REMOVAL.— 19 ‘‘(1) IN GENERAL.—The Attorney General or 20 other Department official described in subsection 21 (a), as the case may be, shall provide written notice 22 to the Special Counsel or other appointed official de- 23 scribed in subsection (a) of the specific reason or 24 reasons for the removal. 25 VerDate Sep 11 2014 22:48 Jan 17, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 71 IS ‘‘(2) EFFECTIVE DATE OF REMOVAL.—Except 1 as provided in subsection (e), removal under this 2 section shall become effective on the date that is 10 3 days after the date on which the written notice was 4 provided under paragraph (1). 5 ‘‘(d) TIMING.—Not later than 10 days after the date 6 on which written notice was provided under subsection 7 (c)(1), the Special Counsel or other appointed official de- 8 scribed in subsection (a), as the case may be, may file 9 an action in the United States District Court for the Dis- 10 trict of Columbia challenging the removal in accordance 11 with subsection (e). 12 ‘‘(e) REVIEW.— 13 ‘‘(1) IN GENERAL.—An individual that received 14 written notice under subsection (c)(1) may file an 15 action in accordance with paragraph (2) that the re- 16 moval was in violation of [Text truncated for display. 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