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H.R. 2083

SEPTEMBER 15, 1999

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Serial No. 82

Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

HENRY J. HYDE, Illinois, Chairman
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
BOB BARR, Georgia
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
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MARY BONO, California

JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts

THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

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Subcommittee on Commercial and Administrative Law
GEORGE W. GEKAS, Pennsylvania, Chairman
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California

MELVIN L. WATT, North Carolina
WILLIAM D. DELAHUNT, Massachusetts



    September 15, 1999

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    H.R. 2083


    Gekas, Hon. George W., a Representative in Congress from the State of Pennsylvania, and chairman, Subcommittee on Commercial and Administrative Law


    Davidson, Michael, Washington, DC

    Robinson, James K., Assistant Attorney General, Criminal Division, U.S. Department of Justice, Washington, DC

    Thornburgh, Dick, Kirkpatrick & Lockhart, Washington, DC

    Tuohey, Mark H., III, Vinson & Elkins, Washington, DC


    Davidson, Michael, Washington, DC: Prepared statement

    Gekas, Hon. George W., a Representative in Congress from the State of Pennsylvania, and chairman, Subcommittee on Commercial and Administrative Law: Prepared statement
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    Robinson, James K., Assistant Attorney General, Criminal Division, U.S. Department of Justice, Washington, DC: Prepared statement

    Thornburgh, Dick, Kirkpatrick & Lockhart, Washington, DC: Prepared statement

    Tuohey, Mark H., III, Vinson & Elkins, Washington, DC: Prepared statement



House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.

    The subcommittee met, pursuant to call, at 9:30 a.m., in Room 2237, Rayburn House Office Building, Hon. George W. Gekas [chairman of the subcommittee] presiding.

    Present: Representatives George W. Gekas, Lindsey O. Graham, Steve Chabot, Jerrold Nadler and William D. Delahunt.

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    Staff Present: Raymond V. Smietanka, Subcommittee Chief Counsel; Sarah Zaffina, Staff Assistant; Joseph Gibson, Full Committee Chief Counsel; Garg Sampak, Minority Counsel; and David Lachmann, Minority Professional Staff Member.


    Mr. GEKAS. The time of 9:30 having arrived, this hearing will come to order. As everyone knows, what has granted impetus to a series of hearings on this matter is the fact that the statute that heretofore governed the appointment and incumbency of an independent counsel has come to an abrupt end as of last June. What many of us then became concerned about in the aftermath of that was what will be the substitute mechanism to counter the often appearing conflicts of interest cases that will most certainly appear in this administration and all that follow.

    In hearings that we conducted early on in which the Justice Department did participate along with other witnesses, we determined that the best course of action would be that perhaps the regulations that are to be promulgated by each succeeding Attorney General should follow a pattern established by the Congress not to indicate the contents of the regulations but rather just the fact that there should be regulations and that, therefore, there should be no vacuum at all of when a conflicts-of-interest case should arise in any future administration.

    To bolster that substance on the part of many of our committee members, out of the blue came the recommendations of Senators Dole and Mitchell in their task force that seemed to parallel the need that we envisioned for future Attorneys General and the conduct of special counsel in the pursuit of conflicts of interest cases.
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    The Attorney General forwarded a response to us on a letter where we had indicated our concerns about what we felt was the inadequacy of the rules about to be promulgated by the Attorney General, including whether or not the special counsel should have enough independence to be able to operate without having to call the Attorney General every single day for every decision that had to be made; and, secondly, whether or not that individual, the new special counsel, would be able to be removed in circumstances other than by demonstration of good cause. These were the two items that gave us pause.

    When the first response came back from the Attorney General, we felt dissatisfied, that indeed what we had envisioned for the quasi- or full independence of special counsel—with attachment, of course, to the Attorney General—and removal for good cause had not been squarely met. We hope today that the representative, Mr. Robinson of the Justice Department, can elucidate the evolution of the current regulations from that first stutter start that we encountered, together in embarking upon the substitute apparatus once the independent counsel statute had died its natural death.

    Then, just as we were contemplating this set of hearings, the Waco thing erupted again. What did this mean to us?

    I remember the press conference in which Senator Danforth answered questions. Two questions seemed to me to contradict each other, and perhaps the witnesses today who are already here and poised to testify will be able to comment on this.

    At one point Senator Danforth, in response to a question, ''Are you going to have to report to or account to the Attorney General?'' he said, ''Yes.'' Did that mean we should, I guess, ask Senator Danforth—but I need your opinions on it—did that mean that that would be just routine report of activities, expenses, et cetera, to be rendered to the Attorney General, or did it mean to ask permission to continue with another phase or issue a subpoena or delve into some other portion of the current investigation, et cetera? We weren't sure about what that answer meant.
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    Later, when the press asked the follow-up question, Senator Danforth was asked, do you contemplate that—I am paraphrasing, I can't remember the exact words—that there will be independence in the operation of your office? He said ''Yes.'' Now, those two answers to those two questions—at least in the minds of the chairman—seem to conflict, and we want to delve into that a bit when the witnesses appear before us here today.

    The bill that we have before us will be the crux of the issues that will determine whether or not we proceed into full markup by this committee, so this hearing is very, very important.

    [The bill, H.R. 2083, follows:]

  H. R. 2083
To provide for the appointment by the Attorney General of a special counsel when investigation or prosecution of a person by an office or official of the Department of Justice may result in a personal, financial, or political conflict of interest.
JUNE 9, 1999
Mr. GEKAS introduced the following bill; which was referred to the Committee on the Judiciary
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To provide for the appointment by the Attorney General of a special counsel when investigation or prosecution of a person by an office or official of the Department of Justice may result in a personal, financial, or political conflict of interest.
    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
    This Act may be cited as the ''Special Counsel Act of 1999''.
    (a) APPOINTMENT.—Upon a determination of the Attorney General that—
    (1) the investigation or prosecution of any person for an alleged violation of Federal criminal law by any office or official of the Department of Justice may result in a personal, financial, or political conflict of interest, and
    (2) it is in the public interest for the Attorney General to resolve any such conflict of interest by appointing a special counsel to head a temporary Office of Special Counsel within the Department of Justice,
the Attorney General may appoint a counsel to head such Office.
    (b) REGULATIONS.—The Attorney General shall issue (and may amend from time to time thereafter) regulations to—
    (1) govern the conduct of any investigation or prosecution by a special counsel appointed by the Attorney General under subsection (a); and
    (2) to provide that the special counsel may be removed from office only by the personal action of the Attorney General and only for good cause.
The first regulations under this subsection shall be issued and made effective no later than 90 days from the date of enactment of this Act.
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    Mr. GEKAS. With that, I will yield to the gentleman from Massachusetts if he wishes to make an opening statement.

    [The prepared statement of Mr. Gekas follows:]


    The Subcommittee has been considering for several months the issue of how the Department of Justice can best handle investigations which raise questions concerning conflicts of interest that it may have.

    The subcommittee first considered the Independent Counsel Act, hearing testimony from the Deputy Attorney General, Eric Holder; former Attorneys General Barr and Civiletti, and other distinguished citizens. We sought recommendations as to whether the Congress should extend that statute and I think the consensus was clear that the law should be allowed to expire as it did on June 30th of this year.

    Secondly, the subcommittee has sought to determine what process would replace the expired statute. We heard testimony from two of the nation's most distinguished former senators, George Mitchell and Robert Dole, who had chaired a project to consider the Independent Counsel Act sponsored by the American Enterprise Institute and the Brookings Institution. That project recommended that regulations be statutorily required of the Attorney General to deal with situations that formerly were the province of the Independent Counsel Act. This, it felt, would give the Attorney General discretion and latitude in resolving the difficult issues surrounding investigations that involved conflicts of interest.
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    When we planned this hearing some weeks ago, we anticipated an explanation by the Department of Justice of the Special Counsel regulations issued this summer by the Attorney General, as well as comments by members of the AEI/Brookings Project concerning important issues raised by those regulations. Is the special counsel appointed under the regulations sufficiently independent while at the same time being sufficiently accountable for his performance? Are the regulations sufficient to insure that special counsels be appointed when they should be? How well will they work?

    But just last week, the Attorney General appointed the first special counsel under the regulations. Former Senator John Danforth of Missouri was chosen to investigate allegations concerning the actions of law enforcement officers during the Waco siege of 1993. As a result, we can look at these regulations not in the abstract but rather in the context of a real investigation raising actual conflict of interest questions to be investigated by an individual who has already been chosen for the job. The questions that we need to have answered with respect to the regulations are thus most topical because we now have an ongoing investigation under them.

    The subcommittee is thus grateful for the presence today not only of the witness from the Department of Justice, but moreover for the participation of an eminent former Attorney General of the United States, who happened earlier to have been the Governor of my state, and a former special counsel to a distinguished earlier Attorney General. Each of these individuals has confronted the questions we consider today and I appreciate their comments and recommendations.

    Finally, I think events of the past few weeks with respect to the Waco investigation have given support to the legislation that I introduced earlier this summer in response to recommendations of Senators Dole and Mitchell. The fact that regulations were in effect has given the Attorney General a reference point for deliberate but swift action.
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    The Attorney General wisely chose to promulgate these regulations on her own. But it is important to recognize that without H.R. 2083, no succeeding Attorney General need do so and both the Department of Justice and the American people would suffer from the omission.

    But as wise as the Attorney General's decision to issue regulations was, it remains for us to see whether they do the job—will they ensure that Americans have justified confidence that impartiality is the order of the day at the Department of Justice?

    Moreover as Senator Danforth's investigation continues, we will continue to monitor the effect of the regulations on it to insure that the kind of investigation Americans expect is the kind they get.

    Mr. DELAHUNT. I don't have an opening statement, Mr. Chairman.

    Mr. GEKAS. Thank you.

    We will now proceed by calling the first witness of the first panel, he being the only witness in the first panel.

    James K. Robinson took office as the Assistant Attorney General in the Criminal Division of the U.S. Department of Justice in June 1998. Mr. Robinson graduated with honors from Michigan State University in 1965 and magna cum laude from Wayne State University Law School in 1968 where he was editor in chief of the Wayne Law Review. He clerked for Judge George C. Edwards of the United States Court of Appeals for the 6th Circuit from 1968 to 1969.
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    Mr. Robinson was an attorney with the law firm of Miller, Canfield, Paddock & Stone from 1969 to 1971. Mr. Robinson was also an adjunct professor for the Detroit College of Law and Wayne State University Law School for a total of 14 years, teaching contracts, criminal procedure, and evidence. From 1972 until 1977 he was an associate, then partner, with the Detroit law firm of Honigman, Miller, Schwartz & Cohen. He joined the Department of Justice in 1977 when he was appointed the U.S. Attorney for the Eastern District of Michigan. He served in this capacity until December, 1980, when he returned to Honigman, Miller until 1993. From 1993 to 1998, he served as dean and professor of law at the Wayne State University Law School.

    Mr. GEKAS. We welcome you, Mr. Robinson. We ask you if you could reduce your written statement, which will become part of the record, without objection, to approximately 5 minutes of summary of that statement.


    Mr. ROBINSON. Happy to do that, Mr. Chairman.

    Thank you for the opportunity to be with you today to discuss the Attorney General's recently promulgated regulations concerning the appointment of special counsels to replace the expired Independent Counsel Act.

    The promulgation of these regulations, I think, is fully consistent with what has been an aim of, I know, the Chair and I believe is also consistent with the recommendation of the report of the American Enterprise Institute and the Brookings Institute, in their project on the Independent Counsel Act.
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    I might just say as an aside that I have great respect for the participants of that project. I am pleased to see Dick Thornburgh here today, who has a parallel career track with me a little bit, with us both having served as United States Attorneys and also as Assistant Attorneys General for the Criminal Division.

    Mr. GEKAS. You need to turn it on, sir.

    Mr. ROBINSON. Sorry. The Department, in consultation with a variety of people, including Members of the Congress, devoted considerable attention to the drafting of regulations to provide a flexible, practical solution to many of the problems that led the Congress to abandon the Independent Counsel Act. These difficult questions, I think, were addressed very well by the project on the Independent Counsel Act of the Enterprise Institute and the Brookings Institute; and we certainly agree that, as indicated in their report, there are no perfect solutions to achieving the always precarious balance between the competing consideration of accountability and independence. Striking that necessary balance is also a major objective, I know, of the legislation that we are here to talk about today, H.R. 2083.

    I would like to indicate what the Department's recommendations are with respect to that statute and also briefly outline for you the regulations and then, of course, answer any questions that you might have for me on that topic.

    The legislation, introduced in June, was, of course, introduced before the Attorney General promulgated these regulations. She signed the regulations on the very day that the Independent Counsel Act expired. The bill would authorize the Attorney General to appoint special counsels and would direct the Attorney General to issue these regulations. It is our view that the legislation is not necessary in light of the fact that I think it is well recognized that the Attorney General has the independent inherent authority to appoint special counsels and has indeed promulgated the regulations that would be contemplated by this legislation.
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    Our concern about this legislation is largely that it might create some doubt as to the Attorney General's ability to appoint independent counsels, which we think is well settled. Also, the regulations, as they currently exist, have the flexibility to allow for changes as we gain experience and continue to take into consideration the views of Members of Congress and other observers as the regulations are utilized.

    As I indicated, on June 30, 1999, the same day the Independent Counsel Act expired, the Attorney General signed an Attorney General Order establishing these regulations to govern situations in which criminal investigation or prosecution would present a conflict of interest for the Department and in which the public interest would be served. This is the same concept that I think is contemplated in the legislation, as a matter of fact, that we are here talking about today. These goals would be served by allowing for the selection of an individual from outside the government to assume the responsibility for the matter. As I indicated, the Attorney General has inherent authority to handle this. These regulations ensure an orderly structure for the management of these sensitive matters.

    Just to give you a few highlights of the regulations—I know the members of the committee are familiar with them, and we have appended copies of them to my testimony, and we can talk about any of the individual provisions that you might like.

    First, the regulations contemplate that the Attorney General will appoint outside special counsel in the event of a conflict of interest creating a situation in which it would be inappropriate for the Justice Department to handle the criminal investigation; and when she also reaches the conclusion that the public interest would be served by turning to an outsider. In the regulations, we avoided many of the listings of covered persons and mandatory procedures that existed in the Independent Counsel Act.
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    I think that a key element of the regulations is the establishment of the criteria for the selection of a special counsel, namely, an individual who is a lawyer with a reputation for integrity and impartial decision-making, with appropriate experience to ensure both the investigation will be conducted ably, expeditiously, and thoroughly and that any investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and the Justice Department's policies.

    Let me just say, because I see the red light, that I took a careful look at these regulations in relationship to the recommendations made by the project on the Independent Counsel Act. I think, to a large extent, these are consistent with those recommendations.

    There are, obviously, some differences on the balance between accountability on the one hand and independence on the other. We think that these regulations do strike the appropriate balance to provide the kind of flexibility that is appropriate under the circumstances, and at the same time address many of the issues that brought the Congress to the conclusion the Independent Counsel Act should be allowed to expire.

    If the committee would like, I can just summarize the specific provisions, although I am happy to answer any questions as well.

    Mr. GEKAS. No, please continue.

    Mr. ROBINSON. The regulations contemplate that a special counsel's jurisdiction would be articulated in a specific factual statement of matters to be investigated. It is intended that the jurisdictional grant will be limited, factual and specific to avoid a frequent complaint under the Independent Counsel Act that the investigations were viewed as too often open-ended, wide-ranging, and going beyond the original purposes of the appointment. I think that are consistent as well the jurisdictional provisions with the recommendations made by the Project.
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    The regulations also require that special counsel conduct their investigations in accordance with the Department of Justice policies, practices, and procedures. This is designed to ensure that independent special counsel apply the same procedures that would be applicable to Assistant United States Attorneys and United States Attorneys throughout the country in the investigation and prosecution of Federal criminal matters. At the same time, the special counsel is expressly granted freedom from day-to-day supervision. He or she would be free to structure the investigation as they wish to pursue the case by any appropriate means.

    The regulations do provide that, should it be deemed necessary, in extraordinary circumstances the Attorney General could request an explanation for the special counsel's decisions and could overrule special counsel determinations under certain very unusual circumstances. That would be a requirement that notification be given to Congress with regard to such an action. I would anticipate that this power would be utilized in only the most extraordinary of circumstances.

    Accountability is also enhanced by a commitment to report to Congress any situations, as I said, in which the Attorney General overrules the action of a special counsel.

    Special counsel and their staff would also be subject to the same kinds of disciplinary and ethical responsibilities that the Department of Justice lawyers have, and, as recommended by the Project on the Independent Counsel Act, removal of a special counsel must be supported by good cause and requires the personal action of the United States Attorney General.

    Another major deficiency that was pointed out by some in connection with the Independent Counsel Act was the need for the establishment of a budget and development of a budget, approved budget by the special counsel is called for in the regulations, and is also one of the recommendations of the Project. In addition, the contemplation under the regulations is that a confidential final report would be made to the Attorney General describing the work of the special counsel. Furthermore, Congress would be notified not only of the appointment and jurisdiction of a special counsel but of events such as the removal of a special counsel, and at the conclusion of a special counsel's work.
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    Furthermore, as I have previously indicated, any decision to overrule an action of the special counsel would be required to be reported to Congress, enhancing again the ultimate political accountability of the Attorney General for such extraordinary actions.

    The fundamental principles outlined in these regulations reflect difficult judgment calls. I understand that reasonable minds can differ, and I am certainly of the view that wisdom so seldom calls, as one judge said, that it ought not to be rejected simply because it comes late. We may learn things, and the advantage of these regulations is that their flexibility provides for the accommodation of lessons learned as we go forward in the future. I think the fundamental framework of these regulations does strike an appropriate balance between independence on the one hand and accountability on the other. A fair amount of time and attention was given by the Department to the promulgation of these regulations, and certainly the views of Members of Congress and the views of the project were taken into consideration in making those determinations.

    In your opening statement, you referred to the appointment of Senator Danforth in connection with the Waco matter. I don't know if the committee has copies of the order actually appointing Senator Danforth. I assume you may. We have additional copies.

    Actually, Senator Danforth was not appointed under these regulations. As explained in the testimony that we have filed, the reason for that I think is clear. In the proposed legislation and in the regulations, it is contemplated that in a situation in which there is a conflict of interest in connection with the investigation and possible prosecution of allegations of criminal conduct, these regulations are triggered.
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    As I understand it, although I was not involved in the process directly with regard to the appointment of Senator Danforth, at this juncture there have not been allegations of criminal conduct, these regulations would not have been triggered. Nor would the proposed statute that we are here to talk about today apply to this situation. The Senator has a broader mandate for a more wide-ranging factual review. And yet within his mandate, in the event the Senator determines that it is necessary to conduct a criminal investigation, his authority includes the possibility of doing so.

    As a consequence, the substantive limitations contemplated by the regulations were incorporated in the order appointing the Senator, with a few tweaks, one of which is that, to the extent that it is possible and consistent with Federal Rule of Criminal Procedure 6(e) secrecy and other legal restrictions, it is contemplated that the Senator, at the conclusion of his review of this matter, could issue a report that could be disseminated publicly without the limitations that would apply to a normal criminal investigation.

    With that, I will be happy to do my best to answer questions. To the extent that there are matters that the committee would like information that I can't provide, I will be happy to provide that as quickly as we can.

    Mr. GEKAS. We thank you.

    [The prepared statement of Mr. Robinson follows:]

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    Mr. Chairman and members of the Subcommittee: Thank you for inviting me here today to discuss with you the Attorney General's recently promulgated regulations concerning the appointment of Special Counsels to replace the expired Independent Counsel Act. The Department devoted considerable effort to the drafting of these regulations, and we believe that they will provide a flexible, practical solution to many of the problems that have plagued these investigations. At the same time, we recognize that these matters present devilishly difficult issues, and, as former Senators Dole and Mitchell observed in their examination of the Independent Counsel Act last spring, there probably are no perfect solutions to achieving the always precarious balance between competing considerations of accountability and independence at play here. We believe that the Attorney General regulations will work well, however, and note that one of the substantial benefits of the promulgation of these procedures in regulation form is that we will be able to consider these issues over time in the light of experience, and make adjustments to the wording or standards of the regulations as the need becomes apparent.

    Today, I would like briefly to describe for you the way the regulations are intended to work, and the reasons for some of the specific decisions we made in the course of drafting these regulations. First, however, I would like to comment, Mr. Chairman, on the legislation you introduced in June, before the regulations were adopted, HR 2083. The bill would authorize the Attorney General to appoint Special Counsels, and would direct the Attorney General to issue regulations. However, the power of the Attorney General to appoint outside counsel in appropriate situations is well-established, and no additional legislation is needed to grant her that authority. Furthermore, the regulations referenced in the bill have already been issued, and are in full force and effect. Indeed, we have some concern that were it to become law, HR 2083 might be read as limiting the otherwise flexible authority of the Attorney General to appoint outside counsel whenever she deems it appropriate to the specific situations described in the bill. Therefore, it is the recommendation of the Department of Justice that no further action be taken on HR 2083. We similarly oppose other bills currently pending in the Senate as unnecessary, although we also have substantial substantive objections to those bills.
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    On June 30, 1999, the same day the former Independent Counsel Act expired, the Attorney General signed an Attorney General Order establishing regulations to govern situations in which a criminal investigation or prosecution would present a conflict of interest for the Department, and in which the public interest would be served by having an individual selected from outside the Government to assume responsibility for the matter. While the Attorney General had at that time the inherent authority to handle as appropriate new allegations that previously would have been governed by the procedures of the Independent Counsel Act, including, if called for, the appointment of an outside counsel, the promulgation of the regulations ensured an orderly structure for the management of these sensitive matters.

    Now I will briefly describe the regulations for you, and have appended a copy to my printed testimony for your convenience. They begin by setting out the circumstances under which the Attorney General will appoint an outside Special Counsel: first, a conflict of interest for the Department of Justice were it to handle the criminal investigation, and second, a conclusion that the public interest would be served by turning to an outsider. We avoided the listing of covered persons or covered crimes and the imposition of mandatory procedures with rigid time schedules that characterized the Act.

    The regulations go on to set out criteria for the selection of a Special Counsel; they require that ''an individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies.'' This is the first safeguard for a fair and independent investigation that is built into the regulations. A Special Counsel of the stature and experience articulated in the regulations, with no vested interest in the Department of Justice, no long-term job at stake and no political identification with or antipathy toward the Administration will have credibility with the public. It will be clear that such an individual would not tolerate any inappropriate interference with his or her investigation. An appropriate background investigation and conflicts of interest examination is an established part of the selection process, and while full-time employment is not mandated for all Special Counsels, each Special Counsel must agree that the investigation he or she has agreed to undertake will come first in his or her professional life, and that a full-time commitment may be necessary in the course of the investigation.
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    The regulations contemplate that a Special Counsel's jurisdiction will be articulated as a specific factual statement of the matters to be investigated. It is intended that these jurisdictional statements should be limited, factual and specific, to avoid the frequent complaint that Independent Counsel investigations have been open-ended and wide-ranging, going far beyond the original reasons for the appointment. We are well aware that criminal investigations sometimes develop in unexpected ways, and therefore a flexible procedure is set out for the Special Counsel to obtain needed adjustments in jurisdictional authority from the Attorney General.

    The regulations require that Special Counsels conduct their investigations in accordance with established Department of Justice policies, practices and procedures. This is intended both to ensure that the investigation is handled, insofar as is possible, in the same way and under the same standards as would be any other criminal investigation, and to ensure that the long-term institutional interests of the Department of Justice are preserved through the application of consistent policies and practices.

    At the same time, the Special Counsel is expressly guaranteed freedom from any day-to-day supervision. He or she is free to structure the investigation as he or she wishes, and pursue the case by any appropriate means. The regulations do provide that should she deem it necessary in extraordinary circumstances, the Attorney General may request an explanation for a Special Counsel's decisions, and may overrule the Special Counsel. This provision reflects our conclusion that experience with the Independent Counsel Act teaches that unfettered discretion vested with a prosecutor subject to no oversight or supervision is unwise, and that ultimate accountability for decisions made with respect to the enforcement of federal criminal law must be returned to the constitutional officer responsible for such matters, the Attorney General, who is in turn answerable to the American people for her decisions. Inappropriate or improper interference with the Special Counsel's work, should any such occur, will be dealt with as it should be, through the established processes of political accountability and constitutional checks and balances that exemplify our system of government. Accountability is enhanced by an explicit commitment in the regulations to report any situations in which an Attorney General overrules a Special Counsel to Congress, insofar as permitted by law.
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    Special Counsels and their staffs will be subject to the same standards of conduct as are other Departmental employees. However, inquiries into allegations of misconduct or unethical behavior by Special Counsel will occur only at the direction of the Attorney General. Removal of a Special Counsel, should such ever be necessary, requires good cause, and the personal action of the Attorney General.

    Addressing another major deficiency of the Independent Counsel Act, future Special Counsel investigations will operate under an established budget, developed by the Special Counsel and approved by the Attorney General. The discipline and fiscal accountability provided by operating under an established budget is a hallmark of good government.

    The regulations contemplate a confidential final report to the Attorney General, describing for the record the work of the Special Counsel. In addition, insofar as permitted by law and the exigencies of the investigation, Congress will be notified of the appointment and jurisdiction of a Special Counsel, the removal of a Special Counsel, and the conclusion of the work of a Special Counsel. As I have already mentioned, instances in which the Attorney General finds it necessary to overrule a decision by a Special Counsel will also be reported to Congress, enhancing the Attorney General's political accountability.

    Having outlined the specifics of the regulations, I would like to return once again to the fundamental principle that guided us in drafting these regulations. In an area that we freely concede presents extraordinarily difficult issues that may have no perfect solution, we sought to achieve a responsible, workable balance between the competing goals of independence and accountability. We devoted considerable thought, in consultation with Congress, to establishing the best accommodation of the competing interests at stake, building in appropriate checks and balances to ensure both accountability and sufficient independence to reassure the public that the investigation has been full and fair. Now it is time to give these regulations a chance to work, to enable us to assess how well they fulfill our goals.
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    Finally, Mr. Chairman, you asked that my testimony address whether Mr. John C. Danforth, the Special Counsel appointed to investigate the Waco matter, was appointed pursuant to the new Special Counsel regulations. To make that appointment, the Attorney General relied on the same general authority as head of the Department of Justice upon which she relied in issuing the Special Counsel regulations, and incorporated into the order governing the Danforth investigation all of the provisions of the Special Counsel regulations except the appointment provisions. The appointment provisions apply only when the Attorney General has determined that criminal investigation of a person or matter is warranted and certain other circumstances exist. The Attorney General has not made such a determination with respect to the events in Waco, but has left the decision whether to proceed with a criminal investigation to Senator Danforth.

    I appreciate the opportunity to explain our new regulations to you, and to explain to you our reasons for concluding that HR 2083 is unnecessary. I would be happy to try to answer any questions you may have, and any questions I cannot answer, I will follow up on back at the Department.

    Mr. GEKAS. Let the record indicate that the gentleman from South Carolina, Mr. Graham, has joined us and the gentleman from New York, Mr. Nadler.

    The chair will yield himself the first 5 minutes of the first round.

    Mr. Robinson, in the Waco rules order that was issued, you state that incorporated therein, I guess by reference or just by osmosis, are the regulations that were previously promulgated; is that correct?
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    Mr. ROBINSON. Yes. On page 2 of subsection D of the order it is provided that the specifics of provisions of these regulations are applicable to the special counsel.

    Mr. GEKAS. Does that mean then that Senator Danforth can be overruled in any portion of the investigation that he conducts?

    Mr. ROBINSON. To the extent provided in those regulations, the answer would be yes. The regulations would apply.

    Mr. GEKAS. If we followed the Heritage Project regulation format, would there be a possibility of overrule, in your judgment?

    Mr. ROBINSON. I do think that the grant of independence contemplated by the proposal of the Project would be greater than is contemplated by these regulations.

    Mr. GEKAS. How is that——

    Mr. ROBINSON. Of course, Mr. Thornburgh and others can speak to this a little better than I can, but I believe their proposals would provide a greater degree of independence and, to that extent, somewhat less accountability than contemplated by the regulations that have been adapted——

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    Mr. GEKAS. When President Nixon fired special counsel back in those murky days——

    Mr. ROBINSON. I remember it well, as we all do.

    Mr. GEKAS [continuing]. Was not the executive overruling the path of action contemplated by special counsel in effect? Wasn't he overruling? Because the President felt that it shouldn't go the direction in which that was going.

    Mr. ROBINSON. We are getting back to a long time ago, but he certainly was attempting to do that. Although my recollection of history is it didn't work since his successor took up the mantle and did exactly what was contemplated.

    Mr. GEKAS. It didn't work because the political ramifications overtook the action. The question was, was there a power to overrule and how different is that from a power of overrule that you acknowledge is part of these present regulations? That is worrisome to us.

    Mr. ROBINSON. I think the major element here is the question of ultimate political accountability. Anything that the Attorney General does, number one, has to be transparent so that this is not a secret thing. There has to be notice to Congress.

    The key element, at least in my view, of the way that the regulations will work properly is the appointment of the person that meets the qualifications that we all agree on. Because such a person is not going to put up with any kind of inappropriate interference. There will be a lot of light on the question of whether or not certain actions can or cannot be overruled.
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    It is certainly my sense that the tension between accountability and independence is one that reasonable minds can perhaps differ on. We think we have drawn the proper balance. I am sure that Mr. Thornburgh and others would draw it slightly differently.

    Mr. GEKAS. One other question. In framing the proposed statute, the bill that we have before us, we felt that it was necessary for future Attorneys General to have a bulwark of statutory authority for the need to and the springing of regulations for that administration, for that new administration. If we did not pass this statute and the incumbency of the current Attorney General comes to an end, is there anything to guarantee that the next Attorney General will promulgate regulations with respect to conflicts of interests and special counsel?

    Mr. ROBINSON. These are Department of Justice regulations, so the next Attorney General would have to rescind these. These will continue to apply to the Justice Department, just as so many of our provisions do, with regard to the regulations that are adapted within the Department.

    Mr. GEKAS. So there is no guarantee that they would not be rescinded?

    Mr. ROBINSON. No. I would say it would not be a wise move for the next Attorney General.

    Mr. GEKAS. That is a political judgment that you are making and others can make. Isn't it sanitary to have the new Attorney General come into office with the knowledge and the mandate that one of his first orders of business would be to promulgate regulations or to announce that the current, then current, regulations shall remain in force? Isn't that a nice way to begin a new Attorney General incumbency?
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    Mr. ROBINSON. I would say, Mr. Chairman, that the new Attorney General would have the benefit of inheriting a situation in which these regulations would exist. Absent a decision to rescind them, these are the regulations that would apply to the Department of Justice and to the next Attorney General. So if there is a change of administrations or a new Attorney General comes along, he or she would have to actually rescind these regulations. There wouldn't be any necessity to create new ones unless he or she felt they ought to be changed.

    The Attorney General would have the flexibility of making modifications to these regulations, tweaking the balance between independence and accountability. This is possible under this framework. We believe that this is what the Chair had in mind for the Attorney General to do. I think it would apply to the next Attorney General as well.

    Mr. GEKAS. The time of the chairman has expired. The gentleman from Massachusetts, Mr. Delahunt, is recognized for 5 minutes.

    Mr. DELAHUNT. Thank you, Mr. Chairman.

    Let me say in a cursory fashion I have reviewed the regulations, and I support them. I think they are solid. They make common sense.

    I think you are correct in stressing the concept of accountability. It is political accountability, and I do share your assessment, and I think that is good in a democratic sense—a small d, obviously. I do think whoever the next Attorney General is, whether it be a Republican or a Democrat, would not rush to rescind or would not rush to change.
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    I think—my own sense is that we have learned that political accountability in our system is a very positive force. You know, in the real world today, both the conduct of the Attorney General and the conduct of a special counsel receive considerable attention, scrutiny from the media. You only have to pick up the paper in the last month, 2 months, and there it is. It is all out there.

    What I am concerned about is what I see as an erosion of confidence in the American justice system, and we need that flexibility. I think what we learned from the independent counsel statute, we can talk about independence, but the independent counsel statute, in my opinion, has damaged the confidence of the American people in the integrity of our justice system. Having been a prosecutor myself for 20 years, I wonder whether you can explain to me why it took 4 years and $9 million in the Cisneros investigation to secure a fine and an apology.

    Mr. ROBINSON. I don't think it would be appropriate for me to comment on that independent counsel matter. I haven't studied it.

    Let me, if I might, just in response to your comments, make the point that one thing that the Attorney General and the Justice Department are subject to is the oversight of Congress. We come here and testify. Appropriately, our actions are subject to review. In certain situations you can create a level of a sort of independence that has put someone outside the mainstream of some of this political accountability. The notion under the regulations was to try to return a balance of political accountability.
    Mr. DELAHUNT. If I can interrupt you, Mr. Robinson, really, you have answered the question because that answer probably will never be revealed to the American people. You can't answer that question whether you feel it would be inappropriate to, but certainly the independent counsel—his name was Mr. Barrett?
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    Mr. ROBINSON. Yes.

    Mr. DELAHUNT. He is not subject, if you will, to any accountability, is he?

    Mr. ROBINSON. Well, there is the sort of sense of political accountability——

    Mr. DELAHUNT. A sense of political accountability? It was 4 years and $9 million in an investigation. This is on charges of lying to the FBI, lying to the FBI; and it took 4 years and $9 million to accomplish and to conclude an investigation.

    Let me be clear. I am in no way questioning the integrity of Mr. Barrett. But it says something about this system that, granted too much independence, there is no political accountability. I dare say that there have to be Americans out there shaking their heads.

    Let me suggest, also, that this is not a condemnation because it was predicated on partisan lines. I have had serious problems when it was a reverse situation. I always had great reservations about the indictment of the former Secretary of Defense 4 or 5 days before an election. Any prosecutor knows that the timing of an indictment is clearly within his or her control. But it is in the past now. Mr. Cisneros has apologized, and he paid a $10,000 fine. As an elected prosecutor——

    If I could have another minute, Mr. Chairman?
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    Mr. GEKAS. Without objection, the gentleman from Massachusetts is recognized.

    Mr. DELAHUNT. If an elected prosecutor took 4 years and spent $9 million to do what was done, he or she would be voted out of office. It would be an outrage. I think we created a system that led to that.

    Again, let me be clear. I am sure there were people who were acting in good faith, but there were forces that were simply unleashed here.

    Let me suggest that we do need this flexibility, and we have got to learn and not be locked in and create a system that is so rigid. We sought independence, but we went to the extreme on the other side.

    You are right about the oversight responsibility of this committee. I think that it behooves Congress, particularly this committee, not the subcommittee but the House Judiciary Committee, to exercise vigorously its oversight in terms of special counsel that are appointed from this point on by Attorneys General, whether they are Democratic or Republican. I think it is really important because people are questioning the integrity and the common sense of the American justice system. I know that Mr. Barrett had Republican credentials. Sometimes I think that a Democratic Attorney General feels he or she has to appoint a Republican. When you are revisiting and acquiring additional wisdom as we go along, sometimes it is best to reach out and get someone who has absolutely no political affiliation whatsoever and whose credentials are not limited to the Beltway.
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    Mr. GEKAS. The time of the gentleman has expired.

    The gentleman from South Carolina is recognized for 5 minutes.

    Mr. GRAHAM. Thank you, Mr. Chairman.

    Let's kind of focus back on the big picture questions. One of the reasons that we are discussing this matter, it is very difficult sometimes for an Attorney General's office to investigate workers coworkers at the Cabinet level or the President or political people surrounding their President in an objective matter. That is the whole point of this, isn't it, accountability with the public? That if you are investigating your boss, folks may question whether or not you are looking at it long and hard? And long and hard shouldn't include, I agree with Mr. Delahunt, $9 million or $10 million to get a conviction about apparently lying about a relationship that could have been, I think, easily investigated and found out one way or the other. I don't know why these things take so long.

    But the problem that I have is when we start over here and we learn from our mistakes, we have two extremes. We have the Nixon case, where the President fired the people investigating him or trying to control them; and they quit, thank goodness.

    The Attorney General had a lot of guts back then. But the summary of the regulations leave me lacking in that institutional objectivity that we are looking for. As I understand it, the Attorney General who may have to investigate their boss one day as President or a Cabinet official working for the President under these regulations, they control the appointment. They control the funding. They control the staffing. They control whether the termination or the ending—and there is no outside source to determine scope like the three-judge panel. What is your view of the three-judge panel's role in independent counsel law? Is that a good thing or a bad thing?
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    Mr. ROBINSON. My sense is that, ultimately, the Attorney General is held responsible for these appointments, no matter how they are made. There was a serious effort made to try to create an environment that would take politics out of the matter. I think that Congress concluded that it didn't do that.

    Mr. GRAHAM. Would it be fair to say that the first time we have an independent counsel need, the very first thing out of the Attorney General's mouth, I am going to appoint a Republican? I agree with Mr. Delahunt. That is not exactly reassuring to me. I would prefer someone with expertise in the subject matter. I don't care about the political party affiliations. That just shows that the politics win, no matter what, doesn't it?

    Mr. ROBINSON. There is certainly a political element accountability. As I said earlier, the appointment, as I understand it, of Senator Danforth wasn't made pursuant to the regulations although the provisions of the regulations were included in his mandate. His appointment wouldn't have been governed either by these regulations or the statute that is contemplated at this particular time because there are no allegations of violations of Federal criminal law at the moment.

    Mr. GRAHAM. But it shows what is on these peoples' minds. It shows the political nature of this beast will always be with us.

    What I am looking for is structural integrity. You will always have personality problems. You will always have the politics surrounding these events. What I am looking for is some balance here that I don't believe we have quite achieved yet. The three-judge Federal panel, I think, comes pretty close to striking the balance I am looking for in terms of the independent counsel having to go to Federal judges who hopefully are independent and nonpolitical. If they are not, we are all in trouble.
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    I guess there is a problem there no matter what you do. But the idea of having review authority outside the Attorney General's office in terms of scope appeals to me. The funding limitations has to come from somebody. I agree with everyone's concern that you can't give independent counsels blank checks. My problem with the regulations is it seems we have gone to the other extreme.

    Mr. ROBINSON. Might I just say that the Project on the Independent Counsel Act, a bipartisan group of very distinguished people including the former Attorney General, Richard Thornburgh and the former Assistant Attorney General for the Civil Rights Division, Drew Days, looked at this very issue very carefully and made recommendations that are consistent with these regulations. Their recommendation was, responsibility and authority to appoint special counsel should be restored to the Attorney General. That is where the buck has stopped. In our political system, we got along without formal structure until 20-some years ago. We tried the alternative, and it did not work. I don't disagree that we should look for improvements as we go forward.

    Mr. GRAHAM. But my question is that the person that would be appointed by the individual who may be a worker for the person being investigated, an employee, basically, an at-will employee, will have control of the purse exclusively; is that right?

    Mr. ROBINSON. Control of the budget would be exercised in substantial consultation with the special counsel appointed. The kind of people appointed by these regulations and by this process are people that have a high degree of independence, I think, and integrity. If they don't match up to the level of somebody who the public is going to have faith in, then I think that we are in trouble from the get-go no matter what we do with this.
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    Mr. GRAHAM. Would you have included Ken Starr in that description? Do you think that he meets the criteria that you just articulated?

    Mr. ROBINSON. I would tell you that my relations with Independent Counsel Starr have been very good. He had a distinguished career. I can tell you that back when he was named I thought that was an appropriate appointment. He had been Solicitor General of the United States, and a United States district court judge. So, I make no comment on his performance under the Independent Counsel Act.

    Mr. GEKAS. The time of the gentleman has expired.

    The chair now yields to the gentleman from New York for a period of 5 minutes.

    Mr. NADLER. Thank you.

    Let me just comment, before I say anything else, about Mr. Starr. Regardless of his performance in office and anything else that you might say about him, I think that his appointment was clearly wrong simply because, as distinguished a career he may have had, he wasn't a prosecutor and the position calls for an experienced prosecutor. He had been Solicitor General, he had been a judge, he had never been a prosecutor. I think someone should have been appointed, someone who had major experience as a prosecutor. And maybe, whether you think he did a great or terrible job or anything in between, some of the criticism that went his way might have been avoided had he had prosecutorial experience and so forth. That is just a side comment on the last thing.
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    Let me just say that I think that we talk about independence, but we also talk about accountability; and they are, of course, opposites. Independence equals unaccountability. Of course, the three-judge panel is the most unaccountable of all, and I would suggest the one that appointed Starr was egregious and a very political three-judge panel. My personal opinion. Plenty of others share it; some do not share that opinion.

    There is a maxim in law that hard cases make bad law. Having watched this whole independent counsel thing for a long time, I think that Watergate was a very hard case and made a very bad law. This country survived for 200 years without a special prosecutor law. The Nixon case was so egregious that we felt that we needed one. I think that the experience of the last 20 years has shown us the dangers.

    You look at the Cisneros case, it is not just the small fine and the great energy and money that went into it. But here was a man who lied to the FBI, not about having a legal transaction, not about paying off his former mistress, but the amount. Frankly, I don't justify lying to the FBI—but it is hardly worth making a Federal case about it. He lied about the amount. He said, I paid her off; and for whatever reasons he didn't want to say the amount he paid her off unless he cheated on his income taxes by that amount, which would be a separate crime, and I have seen no one allege that. I don't see what the fuss—why we bothered with it. I suspect without a special prosecutor law most prosecutors would have said de minimis non curat lex. You don't deal with it.

    The Espy case, where the special prosecutor had the nerve after an acquittal to say that the indictment in putting the victim, in this case a Cabinet officer, through the process is punishment enough, as if the special prosecutor decides who is guilty and punishes the person and arranges for punishment just by putting him through an egregious process, that attitude is egregious to liberty and to our due process.
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    What he went through I think is also—and what some of the other people, the lack of constraints and the lack of constraints on the special prosecutor to deal with such a small matter as the Cisneros affair, the mistress was prosecuted and went to jail. She committed a crime which came into it because of this. The whole thing just seemed out of proportion.

    There is an old maxim that says kris kristodian epsis kristodis—who shall guard the guardians themselves? And I think this bears directly on it.

    Let me just observe that again we seem to deal with the Teapot Dome scandal and the Credit Mobilier scandal and the Bernard Goldfine, whatever it was, like Rakina Coda, whatever it was, scandal perfectly fine without special prosecutors. I hope that we could go another 200 years without needing a special prosecutor. I don't really think we should have special prosecutors unless they get something as egregious as Watergate, as Nixon. I can't think of any special prosecutor in the last few years, probably including Starr, where there should have been a prosecutor appointed. I think none of those cases rose to the level which would have necessitated it. When you appoint the special prosecutor you present grave dangers.

    Let me just simply say that the Department of Justice, the AEI-Brookings report, knows that one principal concern with the Department of Justice proposal with your regs said it retreats from the central point of the Watergate regulations progeny by reducing the full-blooded guarantees of independence to more meager protection from day-to-day supervision of any officials. The Department pledges only a larger amount of independence.

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    I think that is the right way to go. I do not think that you want that much independence in a special prosecutor. And the check again is that if a prosecutor—if a special prosecutor is, in fact, appointed and the Attorney General decides that he or she doesn't like what the special prosecutor is doing and wants to fire that special prosecutor, that is a very public act and you will have a political check. I think we should rely more on the political and public checks and balances than on trying to criminalize and legalize the legal system political disputes.

    Could you react to all of this?

    Mr. ROBINSON. I agree with you. I have been a lawyer for 30 years, and after I was United States Attorney, I was privileged to be president of an organization of former United States Attorneys, Republicans and Democrats. People forget that 99 percent of the Assistant U.S. Attorneys and Federal prosecutors are here working hard through Republican and Democratic administrations doing an outstanding job.

    I think that we need to remember that we have a system where we can rely on those prosecutors. Mistakes can happen, overzealousness can occur. But I think ultimately the political accountability that has been mentioned here is what will make a difference. If an Attorney General under these regulations inappropriately interferes with the special counsel who has been appointed for good cause, there would be a major fire storm about it. I think those are the kind of checks and balances that would make a difference.

    Issues like requiring the establishment of a budget, and requiring special counsels play by the same rules that the United States Attorneys and Assistant United States Attorneys play by are built in there to protect people's rights. All prosecutors have to come to the Assistant Attorney General for the Criminal Division—Mr. Thornburgh had that position—and obtained approval, based on good and sufficient reasons, for certain sensitive actions, such as a request to subpoena the news media or do a law office search or have a title III electronic surveillance. We have those approval measures to protect the public. I think we need to continue to work on this balance between accountability and independence, but I think the regulations strike a good balance.
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    So that would be my comment.

    Mr. NADLER. Thank you.

    Mr. GEKAS. The gentleman's time has expired.

    By special request, the gentleman from Massachusetts will have 1 extra minute to pose a question, but that is only if the gentleman from South Carolina does not object.

    Mr. GRAHAM. I don't object.

    Mr. DELAHUNT. I thank the chair and, of course, I thank the gentleman from South Carolina.

    We are talking here about a Federal statute in the Cisneros case in terms of lying to a Federal investigator. I think most of us in this room are aware that this is not committing perjury. This is not lying under oath.

    Mr. ROBINSON. It can be a violation, a criminal violation, however. It is not a——

    Mr. DELAHUNT. I understand that. Is there any other democracy that you are aware of where a citizen who lies to an investigator, duly authorized by a Federal Government or State government, is subject to criminal sanctions?
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    Mr. ROBINSON. I haven't researched the international implications of that. Congressman Graham seems to know the answer to that question, and I am happy to know it, too.

    Mr. DELAHUNT. How would you feel if the State——

    Mr. GEKAS. The seminar will come to order.

    Mr. DELAHUNT. If the Commonwealth of Massachusetts should pass a criminal statute with a sanction similar to the one that is imposed by the statute we are referring to here, that if you lied to a local police officer or a State police officer, not under oath, about any sort of investigation including a misdemeanor or a felony——

    Mr. ROBINSON. Something like speeding?

    Mr. DELAHUNT. Yes. Do you think that is sound public policy?

    Mr. ROBINSON. I would like to think about that a little bit. This particular statute was thought through pretty carefully. It is important that the FBI and Federal law enforcement not be lied to. But I know there is—so that is a worthwhile debate.

    Mr. DELAHUNT. The more I think about the statute, I think that we might have a difference of opinion on this. I would like to explore it with you at some point.

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    Mr. ROBINSON. I would be delighted to do that. I would be delighted to know what other country has this statute, Congressman Graham?

    Mr. GEKAS. Tasmania, I think. I am not sure.

    Mr. GRAHAM. When I was in the Air Force in the United Kingdom, there was a similar provision that if you gave a police interview you gave it under oath. The whole point is that when you take testimony in criminal investigations you want the person having a reason to tell the truth because sometimes they misrepresent about other individuals and it has the edge——

    Mr. DELAHUNT. But that is under oath, Lindsey. This is not an under oath situation.

    Mr. GRAHAM. The statement is that once you give an oral or written statement that is subject to perjury if you are——

    Mr. GEKAS. Even local law enforcement providing false information to a police officer is subjected to criminal sanctions.

    The time of the gentleman has expired. The seminar will move on.

    Mr. ROBINSON. I felt like I was back in my classroom.

    Mr. GEKAS. We will now impanel the second set of witnesses and invite them to take their places at the table.
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    Mr. ROBINSON. Thank you very much.

    Mr. GEKAS. Thank you.

    Mr. GEKAS. The chair will grant itself a bit of license in introducing Dick Thornburgh. Everyone is well aware of his extraordinary public career. We first in Pennsylvania began to know about Dick Thornburgh when he served as U.S. Attorney in the western part of Pennsylvania. Later, he became an Assistant Attorney General, and, if I am not mistaken, the last few days of that particular incumbency he was either acting Attorney General or pseudo Attorney General or something, acting Attorney General. But, in any event, he had been in the Attorney General's office for some period of time. Then he ran for governor of the Commonwealth of Pennsylvania and was successful and was reelected 4 years later.

    Here is where the personal license comes in. When the first term of Governor Thornburgh began, I was chairman of the Senate Judiciary Committee. Through the leadership of Dick Thornburgh, nine,—I repeat, nine—major pieces of law enforcement legislation were passed through his office and my gavel at that time. To this day, law enforcement officers in Pennsylvania credit that package of legislation as having given them additional powers and that the public safety of the Commonwealth had been enhanced. That is my way of giving both credit to the gentleman from western Pennsylvania and from central Pennsylvania.

    But the point is that Governor Thornburgh at that time understood all of the necessities of governing, of course, and was, as always, interested in the best possible cachet for law enforcement. Then as Attorney General and since then he has been involved in countless projects including the one which brings him to this table, the latest one in which an examination was made by these distinguished individuals on the question of independent counsel and what was to follow.
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    With him at the witness table is Mark Tuohey, who served as special counsel to the Attorney General of the United States during the Jimmy Carter administration. He received his undergraduate degree in history from Saint Bonaventure University in 1968 and his law degree from Fordham University Law School in 1973 and served as an officer in the United States Army.

    Mr. Tuohey spent 4 years as an Assistant U.S. Attorney in the District of Columbia before becoming special trial counsel at the Department of Justice and ultimately special counsel to the Attorney General. After leaving the Department of Justice, Mr. Tuohey distinguished—his legal career has included a term as president of the District of Columbia Bar and 2 years as deputy independent counsel during the Whitewater investigation during 1994 and 1995. He currently is a partner in business litigation practice with the firm of Vinson & Elkins.

    And, finally, we have Michael Davidson, who served as the first Senate legal counsel from 1979 to 1995, in which capacity he represented the Senate in litigation involving the separation of powers in Congressional investigations. In 1968, he represented the Senate before the Supreme Court in the case of Morrison v. Olson in defense of the constitutionality of the Independent Counsel Act.

    He received his undergraduate degree from Cornell University and his law degree from the University of Chicago. A veteran of the Peace Corps, during his legal career he has been a civil rights lawyer with the NAACP Legal Defense Fund, a law teacher, and last year served as minority counsel to the Cox Committee investigating allegations of national security breaches involving the People's Republic of China. Most recently, he served as counsel for the Brookings project on the Independent Counsel Act chaired by Senators Dole and Mitchell.
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    Thus concludes the introductions of this distinguished panel. We will begin by stating to them, as we do customarily, that their written statements will become a part of the record, and we offer them at least 5 minutes to try to summarize that written statement.

    Governor Thornburgh, General Thornburgh.


    Mr. THORNBURGH. Thank you, Mr. Chairman and members of the committee. Good morning.

    I must correct one omission from your glowing introduction, which I assume was designed to add some luster to what otherwise might be my drab testimony. During the time that I served as Governor of Pennsylvania I think the members should know that my Congressman was George Gekas—and never better served was I than during that interval period.

    As you pointed out, Mr. Chairman, my colleagues and I were part of the project chaired by former Senate leaders Bob Dole and George Mitchell for AEI and Brookings which resulted in a report in the aftermath of the expiration of the independent counsel statute. And, of course, the release of that report completed the work on the project; and our appearance here this morning is as individuals with our own views. And I think that it is important to recognize that we speak in that capacity rather than for the distinguished Senate loaders or other members of the project. We appreciate the chance to share those views with the subcommittee this morning.
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    I think it probably might be most useful for me to begin with a summary that points out some specific differences between the project's recommendations and the Attorney General's regulations that have been so ably discussed by Jim Robinson. First, I think it is important to reaffirm the fact that the project agrees wholeheartedly with the termination of the independent counsel statute and the restoration of the Attorney General and Department of Justice of their historic role as chief prosecutors of law enforcement officials subject, as has been pointed out this morning, to the political processes.

    Let me talk about five areas in the agenda that results from an examination of the project report and the Attorney General's regulations and briefly summarize some thoughts on that regard.

    First of all, regarding appointment, the regulations I think make some very positive changes, the most important of which is to shift from a consideration of persons who are targets under the statute to the inclusion as well of matters to be pursued. What this does is to change the pursuit from one of persons to the life-long effort of every prosecutor, to go where the evidence leads. That means there is no laundry list of people whose wrongdoing might be encompassed by an independent counsel and there is no cumbersome timetable that is imposed on the Attorney General in making a determination. It adopts a broad conflict of interest standard, one which I suggest has served this country well, and admonishes the Attorney General to make the appointment where the public demands such. So I think that the changes made there are changes that are in accord with the project's views and mirrored in the Attorney General's regulations.

    Secondly, with regard to jurisdiction and the budgetary provisions, there is very little conflict between the project's recommendations and the Attorney General's regulations and the budgetary provisions which are designed to meet some of the misgivings expressed this morning and previously about so-called out-of-control investigations. A very important distinction is made between original jurisdiction and additional jurisdiction, and the notion of related matters that has been consigned to history.
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    The third area is one where there are some substantial differences between the project recommendations and the regulations and are a source of some concern. That has to do with the extent of the independence that the special counsel should have. It has already been referred to this morning, but let me summarize some of the differences that are etched by a summary of these two documents.

    The regulations state quite clearly that ultimate authority, and I am quoting, ''Ultimate authority for the matter and how it is handled will continue to rest with the Attorney General.'' this is by analogy to the role of the U.S. Attorney. Indeed, Senator Danforth, in accepting that appointment in the Waco matter, acknowledged that he would need approval from the Deputy Attorney General for any actions undertaken.

    There is an explicit statement acknowledging the possibility of review of specific decisions reached by special counsel by the Attorney General. Moreover, there are various obligations to inform the Department of Justice or consult with the Department of Justice, in some cases the Attorney General and in some cases less certified officials in the Department—although Jim Robinson and I would not necessarily want to call the head of the Criminal Division a lesser office.

    These are detailed and I suggest somewhat bureaucratic overlays on the notion of an independent counsel or special counsel, such things as advance notice, the filing of urgent reports, and what is called, ''sensitive cases.'' I can't imagine any case where an independent or special counsel has been appointed that is not sensitive. That would trigger this requirement of urgent reports on a regular basis. Consultation is required in some very important areas in review and approval by the Department.
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    Particularly troublesome is the notion that any appellate process would be controlled by the Solicitor General and not at the behest of the special counsel. I can imagine during the Watergate episode if this regulation had been in effect that it would have been highly unlikely that Mr. Cox or Mr. Jaworski or any of the successors would have been given, without some considerable consideration and pain, the opportunity to appeal some of the rulings made in that case without having been able to proceed on their own.

    Reports are required before contact with certain individuals. Communications are required about, ''major developments,'' all of which is an open flow of information between the special counsel and the Department of Justice which is, in my view personally, somewhat inconsistent with the notion of an independent special counsel. And the Attorney General is entitled to reject recommendations and overrule the special counsel where it is, ''inappropriate or unwarranted action that has been proposed.''

    True indeed, reports to Congress are required of any of this activity, but I am a little bit uneasy about the notion of the right hand giving and the left hand taking away when it comes to the independence of special counsel.

    The project report was very straightforward in this record. It followed the Watergate regulations and vested full authority in the special counsel. And the text of the report states quite clearly it was contemplated that the Attorney General will not countermand or interfere with the decisions or actions of the special counsel, and that is it.

    The fourth area, removal and termination. One crucial difference I think between the project report's recommendations and the Attorney General's regulations is the inclusion in the good-cause provisions in the Attorney General's regulation of the category of violation of Department of Justice policies. When you refer that back to the previous section having to do with the extent of the independence of the special counsel, it could be significant in terms of what good cause is. The report simply said ''good cause''. That is freighted with a lot of significance from a historical standpoint. The review provisions are largely the same, except the AG's regulations kick in a little earlier. The 2-year provisions are included in the project report.
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    Finally, with regard to reports under the AG's regulation, annual and closing reports are required of special counsel, reports to the Hill on appointment removal and conclusion. The question of the sensitivity with regard to Rule 6(e) is adverted to but really not solved and is probably not solvable.

    But I think one thing that people are sensitive to on the basis of some unfortunate past history with independent counsels is the notion that a report can end up being more damaging to an individual who is the target of an investigation than actual indictment with the opportunity to clear oneself. We have had several unfortunate references in reports to alleged wrongdoing which transcended the official action having been taken.

    I think that is about as quickly as I can summarize the response that we had to the regulations in view of the report rendered by our project. With the chairman's permission, I would invite my colleagues to add to or supplement or perhaps even contradict what I may have said. Mr. Tuohey and Counsel Davidson have been involved in the day-to-day process here, and I am sure would have much to offer.

    Mr. GEKAS. That would be appropriate. We will proceed with Mr. Tuohey.


    Mr. TUOHEY. Thank you, Mr. Chairman.
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    I just want to supplement Dick's comments with a couple of thoughts about the work of the commission, about the task force, the Dole-Mitchell task force.

    It was critical to our thinking that the primacy of the Department of Justice be reestablished in the investigations of public figures. I might note parenthetically that under the thinking of the Mitchell-Dole task force none of the current independent counsel would be in office except the Starr investigation because that investigation would fit into the exceptions that would trigger a special counsel even under the Mitchell-Dole. But the others, the former and current Secretaries of Labor, Housing and Urban Development, Interior, Agriculture, none of those would, in our judgment, have required the appointment of independent counsel.

    That is why I say the primacy of the Department of Justice, must apply in the vast majority of these cases, and only in very exceptional situations is an independent counsel in our judgment required. You have able men and women in the Department of Justice, career and otherwise, who are able to handle these matters; and that is where they should be handled. It is only the rarest of circumstances that should trigger this.

    And once triggered, as Dick said, and to underscore the point he made so persuasively then and now, that the Attorney General under the recommendations of the task force, the Attorney General has the ability to avoid one of the troubling situations that the task force found, and that is in certain of the investigations over the last 15 or 20 years you have the old—what the prosecutors would call the nickel-dime problem, that you would not find certain conduct would rise to the level of Federal prosecutive interest. And the nickel-dime stuff, while it may be offensive to a technical violation of the law, does not rise to the level of a criminal indictment.
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    Any U.S. Attorney worth his or her salt would look very carefully at these cases, and have over the years, and that is why the continuum of the Department of Justice's value system and prosecution priority system really has to be reestablished and has to be given the role that it has so richly deserved over the years. When the U.S. Attorney looks over a case, the United States must decide whether this case rises to a level of Federal prosecutorial interest. And the mandate that Attorney General gives to special counsel, the very strict circumstances under which that mandate is increased and expanded, and, finally, the Attorney General's ability to review every 2 years the work of the independent counsel puts in place the kind of structure that allows independence but has a meaningful review.

    And so, as Dick said, the task force would disagree with some of the limitations that are placed on the special counsel under the current rules because we don't feel they are necessary. We feel that in the charter and in the review process, as well as in the selection of an independent special counsel that those restraints are built into the system. But, otherwise, we agree and frankly applaud the Attorney General for the prompt promulgation of regulations under which the special counsel can operate. But, again, the primacy of the Department of Justice—and I know the members of this committee and the Congress feel that way—has to be reestablished. It has gotten lost in the shuffle over the last few years.

    Mr. GEKAS. We thank the gentleman.

    Mr. GEKAS. We turn to Mr. Davidson for cleanup.

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    Mr. DAVIDSON. First, I would like to add a word of appreciation for the Department. After the hearing before this subcommittee on June 11, Senators Dole and Mitchell, as they indicated they would, wrote to the Attorney General about questions concerning the adequacy of the then draft regulations on the questions of removal and independence. That was followed up by an open staff level discussion with representatives of the Attorney General's office and the Deputy Attorney General's office. We feel that we were fully heard out on a number of questions and are greatly appreciative of that.

    Obviously, there remains a difference of perspective on the question of independence. One aspect of that, I think, is an assessment of the public communication that these regulations convey about the nature of the assignment given to someone who, in rare instances—and they will be rarer under the Attorney General's regulations than before—are brought in to deal with the particularly difficult matters.

    The method in the regulation on the question of independence and accountability is to import into the relationship between the special counsel and the Attorney General a complex web of Department of Justice particulars embodied in a very large set of documents called the United States Attorney's Manual. The two parts that are brought in are the parts that govern mandated review and approval of actions by United States Attorneys, stating when they must go to higher officials in the Department of Justice.

    Apart from requirements for review and approval, special counsel must urgently report on key steps in sensitive investigations, which may even include subpoenas to publicly prominent individuals. That has the potential—and I underscore potential because there is a lot here to be worked out under the regulations—the potential for a great deal of communication between special counsel and higher officials in the Department. That will occur at a time when, true to the regulations, a few individuals have been appointed to deal with special matters because of the necessity of assuring the public and the criminal justice system that politics will not intrude on important prosecutorial and investigative decisions.
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    So over and above whatever questions that any details in the regulation may present, there is a question about the ultimate message of the Attorney General's regulations, that question is highlighted by the way the regulations bring into the special counsel system the complex reporting system that U.S. Attorneys ordinarily have, and understandably have, with higher officials within the Department of Justice.

    As we think about it—and it is important now to begin to engage with the members of the committee, so I will be brief, it is important to understand that there will be far fewer such——

    Mr. GEKAS. What was that?

    Mr. DAVIDSON [continuing]. Far fewer such appointments. So many or perhaps all of the matters that the panel has expressed some interest in this morning, particularly the way that the Independent Counsel Act placed investigations of members of the Cabinet outside of the Department of Justice, may never be involved in the new special counsel system. The Attorney General through the discretion, which is very important under the regulations, to not only assess whether there is a conflict of interest or another extraordinary circumstance but whether it is in the public interest to go outside the Department to appoint a special counsel, will end up identifying only those matters in which public confidence requires the appointment of someone outside. When that occurs, the issue is how to make good on the expression to the public and other branches of government that this is going to be a hands-off investigation.

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    How to make good on that? Our thought is that it should always be clear where responsibility is. To achieve that, our recommendations first grant the Attorney General plenary discretion whether to invoke the procedures of the special counsel regulations. Our recommendations then give to a special counsel a full opportunity, indeed the kind of opportunity that was very important in Watergate, was very important in Teapot Dome—it happens periodically in the course of history, hopefully not frequently, but it happens—to conduct an investigation without having the special counsel reporting on a fairly continuous basis to the Attorney General.

    However, at designated intervals, and we had recommended that they be initially 2 years followed by an annual review—the Department's regulations would do it annually, that the Attorney General then have the opportunity to determine whether the public interest still warrants continuation of that special appointment. The public would know at all times where the responsibility was. It would be with the Attorney General in determining whether to appoint the special counsel; it would be with the special counsel during those intervals, 2 years, and then annually to conduct an investigation; and then it would be with the Attorney General at the junctures in which there would be periodic review.

    The blurring that has occurred in the Attorney General's regulations is that not only is there responsibility of the Attorney General at the outset whether to go down that road, and not only is there responsibility at the time of the periodic review, but there is this web of communications in which it would be, frankly, very hard for anyone to know who is responsible for the important decisions that are being made. And so, welcoming Mr. Robinson's thought, this is something that we do think that the Attorney General and the Department should continue to look at and render an assessment whether the detail of this arrangement has begun to overwhelm what might be a far simpler, stronger, and important message.
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    Thank you.

    [The prepared statement of Messrs. Thornburgh, Tuohey and Davidson follows:]


    Mr. Chairman, Representative Nadler, and Members of the Committee:

    We appreciate your invitation to appear before this committee as it considers the special counsel regulations that were issued by the Attorney General on June 30 to replace procedures which expired with the sunset that day of the Independent Counsel Act.

    Earlier this year we participated in a bipartisan project, which was chaired by former Senate Leaders Bob Dole and George Mitchell and assisted by the American Enterprise Institute and The Brookings Institution, to recommend actions that Congress and the Executive Branch might take upon the Act's impending sunset. With release of its public report on May 18, and following Senators Dole's and Mitchell's testimony before this committee on June 11, the project completed its work. In our testimony we will describe for comparative purposes some of the project's recommendations. Beyond that, in light of the project's culmination, the views that we express in this joint statement and in our individual remarks will be our own.(see footnote 1)

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    In our statement we will refer to powers and responsibilities of the Attorney General. As the order promulgating the special counsel regulations indicates (64 Fed. Reg. 37038), the authority of the Attorney General under the regulations shall be exercised by the Acting Attorney General, who usually will be the Deputy Attorney General, in any matter in which the Attorney General is ''personally recused.'' That caveat applies to everything that follows.


    The Attorney General's regulations provide for appointment of special counsel by the Attorney General. Our project's report was in accord, recommending that ''Responsibility and authority to appoint special counsel should be restored to the Attorney General.'' In their testi mony here, Senators Dole and Mitchell stated that ''Our study of this matter has convinced us that a fair reading of history warrants entrusting to the Attorney General the responsibility for deciding when a sensitive investigation should be conducted by a special counsel, and also responsibility for selecting that person.'' They noted that ''any of us might disagree from time to time with a decision of an Attorney General about whether a special counsel is needed.'' In that event ''the appropriate remedy is the political process.''

    The regulations set forth (28 C.F.R. 600.1) a three-part analysis for determining whether to appoint a special counsel. First, the Attorney General must determine that ''criminal investigation of a person or matter is warranted.'' Then, he or she must determine whether investigation or prosecution of the ''person or matter'' by a U.S. Attorney's Office or a Justice Department litigating division would present either ''a conflict of interest for the Department'' or ''other extraordinary circumstances.'' Finally, a further question is to be asked, namely, whether ''it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.''
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    The appointment provisions of the Independent Counsel Act applied to the investigation of ''persons.'' In 1993, the Senate proposed that the Act permit the Attorney General ''to use the independent counsel process in matters raising conflict of interest concerns, without having to name specific individuals as investigatory targets,'' S. Rep. No. 101, 103d Cong., 1st Sess. 37 (1993), but that amendment was deleted in conference. The new regulation, as the Senate had proposed in 1993, authorizes the appointment of special counsel for a ''matter'' without requiring the naming of a person.

    A central feature of the Independent Counsel Act was a list of mandatorily covered persons. The Attorney General's regulations eschew that approach. Our project's report similarly preferred a discretionary test to a mandatory list. It also expressed the view that history is a teacher here as elsewhere, noting that ''[b]enchmarks for appointment of special counsel in cases of political conflicts of interest have emerged through experience. The need to appoint special counsel will be greatest when serious allegations are made concerning the President or Attorney General, although allegations against others personally or politically close to either may also merit an appointment in unusual circumstances.''

    The regulations eliminate the detailed time and other constraints which the Act imposed on the Attorney General's screening of allegations. Nevertheless, the Attorney General's order prudently states that immediate appointment of a special counsel at times may be warranted. ''There are occasions,'' it comments (64 Fed. Reg. 37038), ''when the facts create a conflict so substantial, or the exigencies of the situation are such that any initial investigation might taint the subsequent investigation, so that it is appropriate for the Attorney General to immediately appoint a Special Counsel.''
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    Our project report similarly recommended that there ''be no fixed limitation on either the investigatory tools or time the Attorney General may use to evaluate allegations and make conflicts decisions.'' It also supported the caution evidenced in the Attorney General's order, stating that ''as with conflict issues generally, the Attorney General should decide as expeditiously as possible if special counsel should be appointed. There is also good reason for the Attorney General to be mindful of not using investigatory tools that would impede any investigation a special counsel might conduct.''


    The project report noted, as others have done, that ''[t]wo vexing problems under the Independent Counsel Act have been the tendency of some investigations to sprawl beyond the reason for their initiation and to do so without the discipline of limits on the public resources they consume.''

    Jurisdiction will be established by the Attorney General, whose regulations provide for grants of ''original'' and ''additional'' jurisdiction for special counsel. The order explains (64 Fed. Reg. 37039) that the regulations establish ''a protocol whereby Special Counsels are provided with an appropriate description of the boundaries of their investigation, with the full recognition that adjustments to that jurisdiction may be required.''

    Original jurisdiction (section 600.4(a)) will have several parts. For the main part, the substance of the jurisdiction will be described by ''a specific factual statement of the matter to be investigated.'' Another part enables special counsel to respond to interference with their investigations, by providing ''authority to investigate and prosecute federal crimes committed in the course of, and with the intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.''
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    The Attorney General has full control over the assignment to a special counsel of additional jurisdiction (section 600.4(b)) that is ''necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light'' during a special counsel's investigation. A special counsel is to consult with the Attorney General, who will then ''determine whether to include the additional matters within the Special Counsel's jurisdiction or assign them elsewhere.''

    Our project report supported issuance of a regulation that ''returns to the Attorney General the responsibility for defining the special counsel's jurisdiction.'' One way to achieve that was to eliminate, as the Attorney General's regulations have done, an ambiguous grant of jurisdiction to investigate ''related matters.'' Our report also stressed that jurisdiction not be ''so pinched that it fails to address the investigatory need that warranted, in light of a conflict of interest, a special appointment.''

    Our report also supported establishment by the Attorney General of a budget that would serve as a ''major parameter'' for a special counsel's investigation. The Attorney General's regulations state (section 600.8(a)) that the Justice Department, on an annual basis, shall provide counsel with ''all appropriate resources.'' Our report also emphasized the importance of balance. It noted that ''[l]imitations on resources can serve the salutary end of requiring special counsel to judge what is important and what is less so.'' But citing the Watergate regulation, our report also stressed ''the importance of assuring that inquiries into the conduct of high officials receive the resources that they merit.''

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    In describing the background of the regulations (64 Fed. Reg. 37038), the Attorney General's order states that ''[t]hese regulations seek to strike a balance between independence and accountability in certain sensitive investigations, recognizing that there is no perfect solution to the problem.'' The background statement highlights the regulations' major theme. ''[A] large degree of responsibility'' will be removed from the Department of Justice. Special Counsel will have ''day-to-day independence.'' Each will ''be free to structure the investigation as he or she wishes and to exercise independent prosecutorial discretion to decide whether charges should be brought.'' But each is to do so ''within the context of the established procedures of the Department.'' Of central importance, ''ultimate authority for the matter and how it is handled will continue to rest with the Attorney General.'' For that reason, ''the regulations explicitly acknowledge the possibility of review of specific decisions reached by the Special Counsel.''

    To implement this, the regulations first designate a place for special counsel in the Department's hierarchy, granting them (section 600.6) ''the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.'' Each U.S. Attorney, according to the Department's U.S. Attorneys' Manual (9–2.001), ''has plenary authority with regard to federal criminal matters.'' Each ''is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.'' Each may use grand juries ''to investigate alleged or suspected violations of federal law (9–2.010). Their powers include (9–2.001 (B)–(H)) ''declining'' or ''authorizing prosecution,'' ''determining the manner of prosecuting and deciding trial related questions,'' and ''recommending whether to appeal or not to appeal from an adverse ruling.''
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    The regulations state (section 600.6): ''Except as provided in this part, the Special Counsel shall determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.'' Two parts of the Manual are key to understanding the exceptions to this rule. One is section 9–2.400 which collects in chart form specific circumstances, chiefly decisions about particular substantive issues or investigative techniques, in which U.S. Attorneys must obtain prior approval from officials at Main Justice. The other is sections 3–18.200 through .230, which require U.S. Attorneys, among others, to provide advance notice through ''Urgent Reports'' to high Main Justice officials on events in ''sensitive'' cases.

    The regulations require (section 600.7(a)) that ''Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice.'' One element of that obligation is consultation with various offices within the Department ''for guidance.'' ''Review and approval'' requirements go beyond simple guidance, requiring (64 Fed. Reg. 37039) as the words indicate, ''review and approval before the step can be taken.'' The order states (id.) that these procedures ''are the way in which the Department typically addresses the most sensitive legal and policy issues facing its prosecutors.''

    Most review and approval requirements in the Manual's lengthy ''Prior Approvals Chart'' (9–2.400) will have no bearing on special counsel investigations, as they deal with subjects such as the death penalty or terrorism. Several may be highly significant, including the one specifically identified in the discussion (64 Fed. Reg. 37039) accompanying section 600.7, namely, control by the Solicitor General over appeals. This embraces not only the S.G.'s control over the Government's Supreme Court litigation, but control over its opportunity to obtain first-level review in the courts of appeals.
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    Other review and approval provisions, that based on prior experience in Watergate or under the Independent Counsel Act may have an impact on special counsel investigations, involve such subjects as subpoenas in the United States for documents located abroad (9–13.525), applications for immunity orders (9–23.130), and prosecutions for perjury before Congress (9–69.200). The last of these is likely to have special inter-branch importance. A recurring feature of independent counsel investigations has been possible perjury by Executive Branch witnesses in congressional testimony about the subject of a criminal investigation.

    Review and approval requirements have grown out of longstanding Justice Department concerns with particular substantive or procedural issues in the administration of federal criminal law. The broader requirement that U.S. Attorneys (and now special counsel) submit ''Urgent Reports'' responds to less well-defined interests that may be affected by an investigation or prose cution. Some may be of national importance, e.g., 3–18.200(D)(4), ''involvement of some aspect of foreign relations.'' Others have a domestic political element, e.g., 3–18.200(D)(5)), a ''high likelihood of coverage in news media, or Congressional interest.''

    The rule making order states (64 Fed. Reg. 37040) that the circumstances in which special counsel must notify the Attorney General ''are defined using the same standard as that governing United States Attorneys, who are required to notify the Attorney General or other Department officials before seeking an indictment in sensitive cases and at other significant investigative steps. A Special Counsel will be dealing with issues that are sensitive, with many possible repercussions, and experience has shown that such prosecutions are often as sensitive legally as they are politically.''
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    Under the Manual's criteria (3–18.200(D) and 3–18.230), it is hard to imagine a special counsel investigation that does not meet the standard of ''sensitivity.'' A ''[h]igh likelihood of coverage in news media, or Congressional interest'' (3–18.200(D)(5)) is sufficient. ''Any serious challenge to Presidential authority'' (3–18.200(D)(6)) is on the list, which might embrace sub poenas for presidential documents or testimony and a dispute over executive privilege. So are ''[a]llegations of improper conduct by the Department or specific Department employee, a public official, or a public figure; including criticism by a member of Congress, a court, or other senior government officials of the Department's handling of a particular matter'' (3–18.230(B)).

    With respect to the scope of ''significant investigative steps,'' reports are required upon the initiation of investigations of ''public figures or entities'' (3–18.220). Reports ''before contacting the public figure'' are required for ''an interview, grand jury appearance or trial appearance'' not only of members of Congress, judges, or high Executive officials, but also of any ''other nationally prominent public figure'' (3–18.220(B)).

    Communications about major developments should be made ''as soon as possible, and where the development can be controlled, at least one week in advance'' (3–18.200(B)). But it should also be noted that for interviews and grand jury or trial appearances, ''[t]his notification procedure shall not interrupt, alter or delay the normal conduct and pursuit of any investigation'' (3–18.220(A)).

    Section 600.7(a) of the regulations provide, ''Should the Special Counsel conclude that the extraordinary circumstances of any particular decision would render compliance with required review and approval procedures by the designated Departmental component inappropriate, he or she may consult directly with the Attorney General.'' The regulation thus both enables a special counsel to alter the recipient of the communication, by making it the Attorney General rather than another ''designated Departmental component,'' and additionally to change the process, by making it a consultation rather than a submission for approval.
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    A special counsel's obligation to report ''significant events'' also goes directly to the Attorney General. While Urgent Reports from U.S. Attorneys may go to ''the Attorney General or other Department officials'' (64 Fed. Reg. 37040), the regulation (section 600.8(b)) is precise in stating that ''Special Counsel shall notify the Attorney General.''

    The central question, then, is what the Attorney General may do after consulting with a special counsel who elects to bypass a review and approval requirement, or in response to an Urgent Report from a special counsel about any other significant event. First, under section 600.7(b), ''the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step.'' The Attorney General is to ''review'' the explanation, and ''give great weight to the views of the Special Counsel.''

    Additionally, the regulation names only one ground on which the Attorney General may reject the special counsel's action, namely (under section 600.7(b)), that it is ''so inappropriate or unwarranted under established Departmental practices that it should not be pursued.'' This appears to limit the Attorney General's power under the regulation to conclusions about inappropriateness under ''established Departmental practices,'' rather than, for example, allowing it to turn on different good faith judgments that prosecutors might have about the proper analysis of facts or law.

    At the conclusion of a special counsel's investigation, section 600.9(a)(3) requires the Attorney General to provide to the chairs and ranking minority members of the House and Senate Judiciary Committees, ''to the extent consistent with applicable law, a description and explanation of instances (if any)'' in which the Attorney General overruled a proposed action by a special counsel. The purpose of this report, and also reports on the appointment or removal of special counsel, is ''to help ensure congressional and public confidence in the integrity of the process.'' 64 Fed. Reg. 37041.
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    Our project recommended a fuller grant of independence to special counsel, noting that ''[t]he bedrock provision of the Watergate regulation was the pledge of independence to the special prosecutor.'' That regulation granted the special prosecutor ''full authority'' to carry out a complete range of investigative and prosecutorial actions, including grand jury and charging decisions, decisions to contest assertions of executive privilege, and the handling of all aspects of trials and appeals. Importantly, it further pledged that ''[t]he Attorney General will not countermand or interfere with the Special Prosecutor's decisions or actions.'' We endorsed that basic principle of the Watergate regulation because ''[i]ndependence is indispensable to resolving the conflict of interest that underlies the appointment of special counsel.''


    Section 600.7 has two provisions on redressing misconduct by special counsel. Section 600.7(c) addresses substantive and procedural issues regarding discipline. First, substantively, regarding the norms of conduct, ''Special Counsel and staff shall be subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice.'' ''Inquiries'' into disciplinary matters shall be handled by ''the appropriate offices of the Department,'' with the caveat that those inquiries be ''upon the approval of the Attorney General.''

    Although the Attorney General may use other offices of the Department to make ''inquiries,'' under section 600.7(d) final action requires the ''personal action'' of the Attorney General. Grounds for removal are limited to ''misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.''
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    Our report is in accord, recommending that the Attorney General's regulation provide that a special counsel may be removed from office ''only by the personal action of the Attorney General and only for good cause,'' or physical or mental impairments. It explained that ''[i]n addition to the affirmative grant of independence, the other critical hallmark of independence, indeed the guardian of it, is the freedom from removal, absent good cause.''

    In one important respect, the Attorney General's regulation elaborates on examples of good cause, by ''including violation of Departmental policies.'' This is an idea that earlier had attracted support in Congress. The Senate had proposed adding to the 1994 reauthorization of the Independent Counsel Act a provision that ''good cause for removal would include an independent counsel's failure to follow written Justice Department guidelines and violation of applicable canons of ethics.'' Although the conference committee did not accept the provision, it wrote that those grounds ''do provide potential grounds for removing an independent counsel from office.'' H.R. Conf. Rep. No. 103–511, at 22.

    The new regulations must be read as a whole. The requirement that special counsel submit matters for review and approval or consult with the Attorney General, and the requirement for Urgent Reports that may result in the Attorney General countermanding a special counsel's proposed actions, are policies and procedures that can be enforced through good cause removal. Consequently, the regulations' broadening of the Attorney General's authority over investigative and prosecutorial actions of special counsel has the effect of broadening the potential cause for which the Attorney General may remove a special counsel.

    In our project report, we recommended that the Attorney General's regulations should provide the Attorney General with authority to review periodically whether a special counsel's investigation should continue. The report observed that the Act had ''not constrained the length of investigations.'' It recommended that two years after appointment of a special counsel, and at the end of succeeding one-year periods, the Attorney General should have the opportunity to terminate an investigation. The report suggested that, in contrast to removal of a special counsel at any time for good cause, the regulation not constrain the reasons for these periodic judgments by an Attorney General. It stated that it was fair to expect ''that the Attorney General would be guided by the principles that governed the initial appointment, namely, whether or not a conflict remains and the public interest is served by continuation of the Office of Special Counsel.''
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    The new regulation provides (section 600.8(a)(2)), following a special counsel's annual budget request and report on the status of the investigation, that ''[t]he Attorney General shall determine whether the investigation should continue and, if so, establish the budget for the next year.'' The rule making order explains (64 Fed. Reg. 37040) that the counsel's annual report ''will help to ensure that a Special Counsel investigation does not continue indefinitely; it will be reviewed at least annually to determine whether the investigation should continue, or whether it has reached a point where it should be closed or where responsibility for the matter can be returned to the normal processes of the Department.''

    Fixing a time period in law or regulations inevitably involves a degree of arbitrariness. Other lengths of time might be equally acceptable. We had recommended that two years (rather than one, as in the Attorney General's regulations) be allowed before the Attorney General's first periodic review. It may take some months before a special counsel begins to actively present a matter to a grand jury, and a special gand jury would have a life of 18 months. In formulating the project's recommendation, it seemed that a first periodic review after only a year would be early.


    The Attorney General's regulations provide for reports from a special counsel to the Attorney General, and for reports from the Attorney General to Congress. For the former, there are to be annual (section 600.8(a)(2)) and closing (section 600.8(c)) reports by special counsel to the Attorney General. For the latter, there are to be reports from the Attorney General to the chairs and ranking minority members of the House and Senate Judiciary Committees (section 600.9) on appointment of special counsel, on the removal of special counsel, and on the conclusion of a special counsel's investigation.
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    With regard to the annual reports from special counsel to the Attorney General, the regulation (section 600.8(a)(2)) provides that after the Attorney General receives the counsel's report on ''the status of the investigation'' together with a budget request for the coming year, ''[t]he Attorney General shall determine whether the investigation should continue and, if so, establish the budget for the next year.'' The rule making order (at 64 Fed. Reg. 37040) stresses that ''this annual report is intended to be only a status report'' and ''will not serve as a vehicle for ongoing supervision.''

    At the end of a special counsel's investigation, section 600.8(c) of the regulation provides that a special counsel ''shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.'' The special counsel's obligation to file ''a summary final report'' is ''limited.'' The counsel's report is to be ''handled as a confidential document as are internal documents relating to any federal criminal investigation.'' 64 Fed. Reg. 37041.

    The rule making order notes (64 Fed. Reg. 37040–41) the concerns about final reports under the Act, both with respect to the incentive they had created to ''over-investigate'' a matter and the fact that they could ''do harm to legitimate privacy interests'' if it became public. But the order also states (64 Fed. Reg. 37041) that ''it is appropriate for any federal official to provide a written record upon completion of an assignment, both for historical purposes and to enhance accountability—particularly a federal official who has functioned with substantial independence and little supervision.'' It observed (id.) that a concluding report from special counsel would not be unique: ''In major cases, federal prosecutors commonly document their decisions not to pursue a case, explaining the factual and legal reasons for the conclusions they have reached.''
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    As for ''notifications and reports'' (section 600.9) from the Attorney General to Congress, the order states (64 Fed. Reg. 37041) that the required reports would be ''brief notifications, with an outline of the actions and the reasons for them.'' As noted earlier, the Attorney General's report at the conclusion of a special counsel's investigation is to include (section 600.9(a)(3)) ''a description and explanation'' of any times in which the Attorney General countermanded a proposed action by a special counsel because it was ''so inappropriate or unwarranted under established Departmental practices that it should not be pursued.''

    Apart from that specific element of the Attorney General's report at the end of an investigation, it is not altogether clear what that final report will contain. The discussion under section 600.8(c), on a special counsel's closing report to the Attorney General, suggests (64 Fed. Reg. 37041) that consideration will be given to ''[t]he interests of the public in being informed of and understanding the reasons for the actions of the Special Counsel.'' As stated in the discussion under section 600.9(c) (at 64 Fed. Reg. 37041), another objective that may shape the content of the Attorney General's report at the end of an investigation is the goal of helping to ''ensure congressional and public confidence in the integrity of the process.''

    The regulation cannot govern, of course, whether the Judiciary Committees will release the reports from the Attorney General to them. As for the Attorney General's own release of a report, the regulation provides (section 600.9(c)) that ''[t]he Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.'' Presumably, the major but not exclusive constraint on public release would be the restriction in Rule 6(e) of the Federal Rules of Criminal Procedure on release of grand jury information. Under section 600.9(c) of the regulations, the special counsel is not authorized to release information apart from ''generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.''
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    The project report similarly sought to curtail the breadth of reporting that occurred under the Act. Nevertheless, reporting is an instrument of accountability, and we recommended that special counsel be directed to submit annual reports to the Attorney General ''on the progress of any investigation or prosecution conducted by the Special Counsel.'' These annual reports should provide sufficient information for budgetary decisions and to enable the Attorney General to make a periodic decision whether to terminate an investigation. Concerning a final report, we recommended that it be simply one ''which describes the work of the Special Counsel, including the disposition of all cases brought.''

    As for reports from the Attorney General to Congress, our report recommended (as the regulations provide) that the Attorney General submit a report explaining his or her removal of a special counsel or termination of an investigation. In the Attorney General's regulation, the latter would be included in the required report ''[u]pon conclusion of the Special Counsel's investigation.'' Our project's recommendation would leave to the Attorney General the power to determine whether to release to Congress or the public all or parts of a special counsel's fiscal, annual, or final reports. In doing so, however, our report recognized that ''Congressional oversight is, of course, a central element of accountability. The Attorney General's duty, on behalf of the Executive Branch, to be responsive to Congress on matters within the latter's responsibility should be sufficient assurance that information will be appropriately shared.''

    The Attorney General's regulations are silent about reporting on impeachment matters. The project report specifically recommended that the provision in the Independent Counsel Act on impeachment reports to the House not be carried forward. At the same time, we made clear that ''nothing in [the project's proposed regulation] prevents Congress from obtaining information during an impeachment proceeding.''
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    This concludes our prepared statement. We are prepared to respond to the committee's questions and elaborate on our joint or individual views about issues that may be presented by the Attorney General's regulations.

    Mr. GEKAS. The time of the gentleman has expired.

    The chair will yield itself 5 minutes in the first round of questioning.

    The question recurs—when this Member saw the first response of the Justice Department to our initial inquiry as to what contents might appear in the first set of regulations to be promulgated, I must tell you I was alarmed and drafted a proposition, a bill that would make certain at least that removal for good cause would be an element of any new regulations to be promulgated. I, too, then was pleased that the—finally, that the Attorney General did move swiftly in providing regulations but still remain doubtful as to whether or not they are adequate or whether they obviate the necessity for Congress enacting a statute of guidelines for the guidelines, so to speak.

    I need an answer from this distinguished panel. Should we or should we not have a statute that will guide future Attorneys General in the promulgation of regulations?

    General Thornburgh.

    Mr. THORNBURGH. I think not. I think it is far preferable to secure the kinds of changes we have talked about this morning in the regulations because it would make it extremely cumbersome to change those regulations if they have to go through the Congress as distinguished from being subject to change by the Attorney General.
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    Mr. GEKAS. I am not talking about a statute that would have the details. I am talking about a statute that would be patterned after the project's recommendation of language.

    Mr. THORNBURGH. I think what the chairman has proposed is by and large consistent with what the project proposed except for the——

    Mr. GEKAS. Mandate of good cause.

    Mr. THORNBURGH. Yes, the good cause provisions. That particular element—I hope that would be dealt with by the Attorney General. I have an adverse reaction. If that good cause provision is appended, who knows what other provisions might be appended through the course of passage through the Congress and you might end up with some things written in stone that might not——

    Mr. GEKAS. So you would rather allow, as is now the case, this set of regulations promulgated by the Attorney General to serve and be under whatever political heat that they may engender in the near and far future?

    Mr. THORNBURGH. That is what experience teaches me. I understand your concerns, and I obviously agree with the concerns about the good cause provision, but I am a little leery of having these——

    Mr. GEKAS. You are more satisfied with the fact that our actions, our hearings——
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    Mr. THORNBURGH. Our interest in the matter did turn the Attorney General's draft at least in the right direction.

    Mr. GEKAS. I hope that is enough for my ego. But that is very valuable testimony on your part.

    How does Mr. Davidson or Mr. Tuohey feel about it?

    Mr. DAVIDSON. I share Mr. Thornburgh's thoughts on this. The value of enacting a statute minus a particular content provision, minus a requirement that there be a good cause removal provision or any other, is forward looking. It would assure that under future Attorneys General the idea is maintained that it is advisable to have a system in place, rather than to have to create a system for the appointment of special counsel when the emergency arises and the nature of the arrangement is determined by the politics of the moment.

    Obviously, Attorney General Reno has decided this is an appropriate thing to do. These regulations or any amendments to them will be in place during her tenure there. But as a matter of permanent law, the idea that it is important to have learned from the lessons of the past, to think these through in a cool manner and at cooler times rather than in the heat of a new issue, that makes a lot of sense.

    I think, addressing the concern that Mr. Robinson raised, whether the fact of a statute would raise a question whether the Attorney General could, under already existing statutory authority, appoint special counsel, one could deal with that in drafting the new statute by making sure that this authority is in addition to any other authority provided by law.
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    Mr. GEKAS. Mr. Tuohey?

    Mr. TUOHEY. I agree with my colleagues; and I can't, with all humility, add to what they said. I agree with them and support it.

    Mr. GEKAS. All right. That is very valuable information and opinion for future actions of the chairman of this committee.

    One other pause that I have and that is with respect to Senator Danforth back to what has now been disclosed, do you get the impression that the Senator, Senator Danforth, feels that he will not be overruled or could not be overruled in any of his decision-making in this matter? He says that he is going to have independence; but then, in answer to another question, he says that he is going to have to account to the Attorney General. What do you make of that? Should we make anything of it and just allow the matter to flow?

    Mr. THORNBURGH. I can't speak for Senator Danforth, obviously. I had the same reaction as you did in looking at that. He made it quite clear that he felt his actions could be more subject to the approval of—or subject to the approval of the Attorney General in this case. This is a unique situation. It is not clear—and Senator Danforth was quite explicit in this. It is not clear whether he has embarked on administrative inquiry or a potential criminal investigation, and we will have to wait and see how the facts unfold.

    Mr. GEKAS. The time of the chair has expired.

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    The gentleman from New York is recognized.

    Mr. NADLER. Thank you. Thank you, Mr. Chairman.

    Essentially, the recommendations of the committee are that the special prosecutor or special counsel, whatever you call him, should be somewhat more independent than the Attorney General's regulations would seem to indicate.

    I have two questions, one general and one specific. The general question is, Morrison v. Olson said that the only thing that rescued the constitutionality of the Special Prosecutor Act was that the Attorney General remained in control. Otherwise, you had separation of powers and constitutional problems. How do you think that the greater independence of the special prosecutor squares with that decision?

    And, secondly and more specific, if we are to include in a statute that the Attorney General could only dismiss the special prosecutor for just cause and especially if we were to define that somehow, does that in your opinion again run afoul both of Morrison v. Olson, which says that the Attorney General must be in control, and does it run afoul of the same constitutional infirmities as the Tenure in Office Act of the first Johnson administration in the 1860's?

    The Tenure in Office Act essentially said the President couldn't dismiss a Cabinet officer except with the advice or with the consent of the Senate. It was held unconstitutional, obviously, after a slight impeachment problem. And essentially Morrison v. Olson seems to say the same thing, that the separation of powers says you can't remove the power to remove and appoint an officer from the executive branch invested somewhere else.
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    Mr. THORNBURGH. I am a poor witness on that because I am a diehard who thinks that Morrison v. Olson was incorrectly decided.

    Mr. NADLER. You think that it should be that unconstitutional altogether?

    Mr. THORNBURGH. I thought that the Independent Counsel Act should have been declared unconstitutional.

    Mr. NADLER. If you think that, then you should be more in the other direction. I suspect——

    Mr. THORNBURGH. That doesn't affect the ability of an Attorney General, as has been historically the case, to appoint an independent counsel.

    Mr. NADLER. What I am saying is——

    Mr. THORNBURGH. No separation of powers problem there.

    Mr. NADLER. No, but the separation of powers—if you think that Morrison v. Olson was wrongly decided, the logic would seem to indicate that you should be able to place less restrictions on the Attorney General. You shouldn't be able to tell that you should only dismiss for just cause.

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    Even under Morrison v. Olson—I am asking even if Morrison v. Olson was decided rightly, as the Supreme Court says it must have been, at least until the Supreme Court changed its mind, that seems to present a problem. But if it was decided wrongly it certainly presents a problem.

    Mr. THORNBURGH. One is a legal problem, and the other is a political problem.

    Mr. NADLER. No. I am talking specifically from the separation of powers point of view. If Morrison——

    Mr. THORNBURGH. You can't have a separations of powers problem when you are dealing strictly with an executive branch function.

    Mr. NADLER. If you are putting a limitation on the ability of the Attorney General to dismiss——

    Mr. THORNBURGH. You are talking about the proposed statute?

    Mr. NADLER. Yes.

    Mr. THORNBURGH. Michael, you could probably speak better to that.

    Mr. DAVIDSON. To begin with, the statute, perhaps now unlamented, the statute provided for——
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    Mr. NADLER. I think we can all agree that the Tenure in Office Act was unlamented.

    Mr. DAVIDSON [continuing]. Appointment on the application of the Attorney General by a court. A major constitutional issue in Morrison v. Olson, of course, is no longer present because the judicial branch is not to be involved in the appointment of independent counsel or special counsel or in issuing jurisdictional orders or in any of the ancillary powers that the court would have.

    The second issue in Morrison v. Olson was, did the Congress in the Independent Counsel Act vest in the Attorney General sufficient controls over the process? The features that the Court identified as passing muster were that the Attorney General determined whether to file the application, even though hedged in by many restrictions that the Congress had imposed such as time limits and specific positions that were identified and a threshold for seeking the appointment.

    Under our views, our project's views and the Attorney General's regulations, the Attorney General has plenary control over initiation of the process. Importantly, also in determining the special counsel's jurisdiction, the Attorney General's would have even more power now because of the deletion of the special counsel's or court's power to expand through identifying related matters.

    All of those decisions will be by the Attorney General. And the Attorney General would have the power to remove for cause, which would no longer be expressly reviewable in the courts. It may be under general review authority of the courts but not by specific grant of the Congress.
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    So in those circumstances this can't be any less constitutional than the Independent Counsel Act. It involves the judiciary. The key elements of the Attorney General's powers remain the same.

    Ultimately, you can't have a separation of powers issue concerning a limitation on removal when it is the Attorney General who imposes these limitations on himself or herself. Even though I think the Congress might be able to mandate this by regulation just as the Congress, by legislation, prevents the President from dismissing Federal Trade Commissioners or members of the Federal Reserve board except for cause——

    Mr. THORNBURGH. FBI directors.

    Mr. DAVIDSON. As a matter of wisdom, it would be hard to start down the road of identifying one particular part of the regulatory scheme that merits statutory protection and others don't. The predictable path would be I think a detailed set of regulations, and then the Congress would be back in the business of passing the Independent Counsel Act.

    Mr. NADLER. Thank you, sir.

    Mr. GEKAS. We now yield to the gentleman from South Carolina, but I would ask if he would yield to the chair for one question?

    Mr. GRAHAM. Absolutely.

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    Mr. GEKAS. Now, I am really confused on one matter. Do you as individuals or members of the project disapprove of or do you not think it is necessary to have a statute that contains the language that the chair inserted at the end for good cause, removal for good cause? Or do you disapprove of any statute at all, even if it follows the project's recommendation for a statute? That is what is not clear to me. I am willing, if the project believes that the only desultory matter in the proposal by the chairman is the language on good cause, to remove that and then to return to the language of the project. Is that—deconfuse me, if you can.

    Mr. THORNBURGH. I think it is clear what the Project recommended, and that is what I would recommend as well. I am comfortable with that.

    Mr. GEKAS. So that you would approve of a statute that contained that language sans ''good cause''?

    Mr. THORNBURGH. Yes. And my misgiving again, I repeat, is not over the notion of good cause, for which—with the chairman, but the inclusion in the statutory language.

    Mr. DAVIDSON. That is correct. And that was Senator Dole's and Senator Mitchell's testimony before this committee.

    Mr. GEKAS. So that we would not be incurring your wrath if we proceeded with a statute comporting under the language of the project.

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    Mr. THORNBURGH. Approbation.

    Mr. GEKAS. The gentleman is accorded extra time now.

    Mr. GRAHAM. Thank you, Mr. Chairman.

    It seems there are two situations in our recent history we can relate to. One is an out-of-control President 25 years ago and, at least from my opinion, sometimes an overly protective Attorney General. I don't know what balance we strike as Congress, but there are a couple of institutional deficiencies that you have mentioned that really do bother me.

    If the Solicitor General has the authority to determine what issues are appealed in terms of the special counsel, I think that is very much politicizing the issue. That is divesting the independent counsel of the tools that most prosecutors would have available to them to pursue their case in a traditional fashion. Do you agree with that?

    Mr. THORNBURGH. Yes.

    Mr. GRAHAM. Now, when we are talking about this new model, on rare occasions, I think that it is important that we hit it right on. Mr. Tuohey, do you consider the recent events with President Clinton to have been a justification or a rare occasion that would have not warrant any special counsel being appointed?

    Mr. TUOHEY. I am not sure I understand your question, Congressman. You mean when Judge Starr was appointed?
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    Mr. GRAHAM. Judge Starr.

    Mr. TUOHEY. I think the Fisk-Starr appointments, one being the regulatory special counsel by the Attorney General and the other being the statutory appointment after the Congress reenacted the act, were triggered by events that both the Attorney General and later the court determined were appropriate. I can't quarrel with that initial decision-making.

    Mr. GRAHAM. I just wanted to find what we all understood to be rare occasions because that is important from your perspective, that I know your perspective of what that means to you.

    Mr. TUOHEY. If I may, Mr. Chairman and Mr. Graham, underscore that the—and I will get it right, Mr. Chairman. We will call it the project. I have called it three different things. The project members——

    Mr. GEKAS. Project is good.

    Mr. TUOHEY [continuing]. Felt very strongly. And I say that, like I think almost everything else that we talked about, we unanimously believed that a special counsel is required in only the rarest of situations that trigger a conflict of interest, the appearance of a conflict and ultimately public confidence. And that situation would be a lot rarer than the 18 or 19 appointments of independent counsel over the last 25 years.

    Mr. GRAHAM. Just using the most recent events involving President Clinton, does the panel have an objection with that being considered one of those rare occasions?
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    Mr. THORNBURGH. Yes. I think that appointment would be appropriate under these regulations.

    Mr. GRAHAM. That is helpful to me. I agree with you in many ways.

    Mr. NADLER. If the gentleman would yield, would you just clarify for a moment, going back to the initial Fisk appointment, there were allegations at that time about the Arkansas land deal, Whitewater and so forth. What characteristics in your opinion made that situation worthy of a special appointment as distinct from some of the others that you think were not worthy?

    Mr. THORNBURGH. Conflicts of interest. The Attorney General in effect investigating the point of authority and the person who had the authority to fire her.

    Mr. NADLER. And the same would not be said of these various allegations against Cabinet members?

    Mr. THORNBURGH. Absolutely not.

    Let's look at a little history just for a second, if I could digress. At the same time that the Watergate proceedings were going forward, a sitting Vice President was investigated and prosecuted successfully by U.S. Attorneys and Department of Justice lawyers. There was no appointment of an independent counsel or outside counsel in the Spiro Agnew prosecution.
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    Mr. NADLER. Thank you.

    Mr. GRAHAM. The defining moment there, the final event is the ability to remove. The Vice President would not have that ability. A Cabinet official would not have that ability. The President would. I think that makes a lot of sense.

    Now, let's talk about—the starting and stopping of this is very important. You seem to rely a lot on public outrage and editorial writers telling us when is the right time and this is not the right time. Because a lot of discretion that we have given the Attorney General is just that, a lot of discretion. We seem to be moved by the idea that, well, they will have to be accountable to the public. I have been through that process myself. Sometimes it can be very difficult, so I am looking for more structure.

    The termination aspects of your panel's recommendations versus the regulations, there are two things that bother me. The termination of the investigation under the regulations are pretty much at will. You have a time period of 2 years where the special counsel—and a 2-year period would cease to exist as an entity and can be, I think, restored 90 days within the 60 days.

    My concern is someone running out the clock. How do we address that? How do we address a group that is potentially trying to delay the information? Not people taking the fifth amendment, people leaving the country. How do you address the ability of someone to investigate when they have got a set period of time in the running-out-the-clock phenomenon?

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    Mr. GEKAS. Without objection, we yield to the gentleman an additional 2 minutes.

    Mr. GRAHAM. And I will just end with that question.

    Mr. THORNBURGH. This doesn't provide for an automatic termination at the end of 2 years. It is an ability for the Attorney General to review. That would involve consultation with the special counsel who would then make the point that if there is a running out of the clock going on, that that is the case and urge that the Attorney General make the investigation go forward.

    Mr. GRAHAM. As I understand it, that determination is made within 60 days following the termination period, but you only have 90 days to transfer the records. Is it your understanding that you could be reappointed for 2 more years?

    Mr. THORNBURGH. The investigation would continue, whatever the investigation was.

    Mr. GRAHAM. Would that special counsel have to leave?

    Mr. THORNBURGH. No. I hope that we are not talking about two different things here.

    Mr. GRAHAM. Do you understand what I am talking about here?

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    Mr. DAVIDSON. I do understand. Perhaps that was an overly complex part of the drafting. The thought was definitely that the investigation would proceed unless the Attorney General determined that it was in the public interest to terminate.

    Mr. THORNBURGH. And reported to the Congress.

    Mr. GRAHAM. Follow me here. At the end of 2 years your appointment period ends. Within a 60-day period of that ending period you can petition to continue. Is that wrong?

    Mr. DAVIDSON. No, the other way. The appointment continues. At the end of a 2-year period, the Attorney General would have an opportunity, free of judgments about cause but looking at the public interest, to assess whether there is a public interest in the continuation of the investigation. Unless the Attorney General terminated the investigation at that window, the investigation would continue. A new appointment would not be required.

    Mr. GRAHAM. Thank you.

    Mr. DAVIDSON. I believe that the Attorney General's regulations are very much of that nature except that, under the regulations, that first review would occur at the end of the initial 1-year anniversary of the appointment.

    Mr. GRAHAM. So there is no running-out-of-the-clock phenomenon?

    Mr. DAVIDSON. There would not be.
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    Mr. TUOHEY. One of the concerns that we had and was touched on by several questions raised by the panel, one of the concerns we had, and there were a number of project members who had served as prosecutors, was that these investigations simply take too damn long. They take too long. They don't need to take 3 years, 4 years, some of them 6, 8, 9 years. They don't need it.

    There ought to be some—with maintaining the integrity and the independence of the prosecutor appointed, there ought to be some ability at some point to say, where are we going, where are you going, and let's talk this through, without interference. Because, ultimately, the Attorney General is going to be accountable to this committee and the Congress. But there ought to be some ability to say where is this train going and is it going in a direction that is consistent with the principles of appointment.

    Mr. GRAHAM. I will interject one more time, Mr. Chairman, and I apologize.

    My concern is, yes, that is the phenomena that we want to control, but you don't want to allow someone being investigated—like when 116 people take the fifth amendment or leave town, it is very hard to do your investigation if people are not cooperating with you. So I don't see the problem that I thought I saw because it does continue just with a review process.

    Thank you.

    Mr. GEKAS. And the gentleman from Massachusetts is recognized for 5 minutes.
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    Mr. DELAHUNT. I agree, by the way, that for the Solicitor General to make appellate decisions, to process appellate issues, is a mistake. But the reality is that the Attorney General, by regulation, can restructure that particular procedure. That is the appeal that it has for me.

    We heard here today from Mr. Robinson saying that wisdom is a cumulative process, if you will. I agree with Mr. Graham and I agree with, I think, most of you on the panel. But that is why we need flexibility. Despite what my colleague and friend from Pennsylvania, the chairman, says, in terms of providing structure, I like the ability to adapt when it is obvious it needs to be changed.

    I think history has proven that we can rely on the fourth estate, the media, to play its role within our democracy. Many of the concerns that we expressed about independence—I mean, the reality is in this world an aggressive media is going to serve as a significant check on the inappropriate exercise of power, the abuse of power, inappropriate conduct. That is simply going to happen.

    The problem is that this institution in many respects has abrogated its responsibility. We have inherent in our—in Congress, particularly within the committees, oversight jurisdiction. We do not exercise it vigorously enough. When there is a high-profile case, such as the events in Waco, Texas, there are going to be investigations. Let that happen. But there are many instances where an aggressive exercise of our oversight jurisdiction, I dare say, would address a lot of the concerns.

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    We talk about the President. That is a different situation, obviously, but it happened 25 years ago during Watergate. It was generated by the media and the institution without the benefit of—and I concur with Governor Thornburgh—with an extra-constitutional—or even an unconstitutional appendage to our system of government. I can understand the concerns——

    By the way, I think the work product was excellent. I think it was very thoughtful, and it clearly did serve the republic well, because I am sure it influenced the decision-making within the Department of Justice. But I guess I disagree with your concern about the free flow of communication and the encroachment that has on independence. Because even within the Department—you have all served as prosecutors, and we all know, even within the Department of Justice, no matter how strong an Attorney General may be, there is a constant conflict of ideas and a healthy tension.

    And I think this has come about because of what has occurred under the independent counsel statute, again most recently, in the Cisneros case with 4 years and $9 million for an apology and a fine. There is not an Attorney General in the United States who would not have exercised prosecutorial discretion, I am sure, much sooner with far less cost to say this is over, this is done, let's move onto something serious. The public understands this question of proportionality.

    So what I suspect has occurred, is the Attorney General, because of the collective concern that many prosecutors and others have experienced, said we had better monitor and make damn sure that the exercise of that discretion to buttress or to make sure that public interest is being served is being exercised appropriately. Because you can make those great appointments. I am sure you have made great appointments that looked awful good the first month, the first year, and then became less terrific as time went on. So I think what we are seeing here is a response, but if that free flow in communication turns out to be the problem, a legitimate problem that you have raised, it can be dealt with.
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    Mr. THORNBURGH. I would like to just suggest that the points you have made are well taken. The difference, I think, in approach is that there is a fear expressed in the project report of a day-to-day kibitzing by the Attorney General of every action taken by the special counsel and that allocation of that role of review on a 2-year and thereafter yearly basis as a substitute for that which preserves the independence of the special counsel and, at the same time, putting a check on an overly long, out-of-control investigation.

    Mr. DELAHUNT. It is a question of degree, really. I don't have great disagreement with that. But I think the reality is that is not going to happen. If it does happen, hell, we will know about it real soon.

    What we ought to be doing is this institution ought to exercise its constitutional responsibility and have—I can't remember, I don't think that we have ever had an independent counsel before us—and get a report and question, well, how did you reach those decisions, what happened, why did it take 4 years and $9 million?

    Mr. GEKAS. The time of the gentleman has expired. In fact, I think the time for the entire proceeding has expired. In fact, my breath has expired.

    I am very much grateful to the project, to its members, to the individuals in the project. I feel that the Congress has been well served with the time that you took to develop the recommendations and the report, and I must tell you that this is a rare instance in which people in public life have tried valiantly and succeeded in impacting on the thinking and the work of the Members of Congress. I am very, very especially grateful for all of that.
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    I consider this to be an intermission in the ongoing quest for a perfect solution. Next week, we will have an additional hearing requested by the minority on independent counsel and its absence. Thereafter, I intend to call a meeting of the committee and determine the future course based upon the impetus granted to us by the work of the project.

    I repeat my gratitude and dismiss you with that gratitude. Thank you very much.

    Mr. THORNBURGH. I think we would only add one thing, Mr. Chairman. The real credit for the work on the project belongs to its distinguished co-chairmen, Senators Dole and Mitchell, who provided the leadership in a bipartisan environment.

    Mr. GEKAS. So noted. Thank you very much.

    [Whereupon, at 11:29 a.m., the subcommittee was adjourned.]

(Footnote 1 return)
Dick Thornburgh and Mark Tuohey served as two of the eight members of the project who joined Senators Dole and Mitchell in that endeavor. The project's full membership is listed in its May 18 report, which this committee entered into the record of its June 11 hearing. Michael Davidson served as the project's counsel. The material in this statement is drawn from a detailed description and analysis prepared by project counsel and posted on the Brookings Institution web site (www.brookings.edu).