28 U.S.C. § 593 — Duties of the division of the court

Page 260 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 593 eral’s decision regarding such preliminary in- vestigation as it relates to each of the matters with respect to which the congressional re- quest is made. If there is such a preliminary investigation, the report shall include the date on which the preliminary investigation began or will begin. (3) SUBMISSION OF INFORMATION IN RESPONSE TO CONGRESSIONAL REQUEST.—At the same time as any notification, application, or any other document, material, or memorandum is sup- plied to the division of the court pursuant to this section with respect to a preliminary in- vestigation of any matter with respect to which a request is made under paragraph (1), such notification, application, or other docu- ment, material, or memorandum shall be sup- plied to the committee making the request, or to the committee on which the persons mak- ing the request serve. If no application for the appointment of an independent counsel is made to the division of the court under this section pursuant to such a preliminary inves- tigation, the Attorney General shall submit a report to that committee stating the reasons why such application was not made, address- ing each matter with respect to which the con- gressional request was made. (4) DISCLOSURE OF INFORMATION.—Any report, notification, application, or other document, material, or memorandum supplied to a com- mittee under this subsection shall not be re- vealed to any third party, except that the committee may, either on its own initiative or upon the request of the Attorney General, make public such portion or portions of such report, notification, application, document, material, or memorandum as will not in the committee’s judgment prejudice the rights of any individual. (Added Pub. L. 95–521, title VI, § 601(a), Oct. 26, 1978, 92 Stat. 1868; amended Pub. L. 97–409, §§ 2(a)(1), 4(b)–(e), Jan. 3, 1983, 96 Stat. 2039–2041; Pub. L. 100–191, § 2, Dec. 15, 1987, 101 Stat. 1295; Pub. L. 103–270, § 3(l), June 30, 1994, 108 Stat. 736.) Editorial Notes AMENDMENTS 1994—Subsec. (e). Pub. L. 103–270 inserted ‘‘or as is deemed necessary for law enforcement purposes’’ after ‘‘Except as otherwise provided in this chapter’’. 1987—Pub. L. 100–191 amended section generally, sub- stituting provisions relating to preliminary investiga- tion and application for appointment of an independent counsel for provisions relating to application for ap- pointment of an independent counsel. 1983—Subsec. (a). Pub. L. 97–409, § 4(b), designated ex- isting provisions as par. (1), substituted, ‘‘Upon receiv- ing information that the Attorney General determines is sufficient to constitute grounds to investigate that any person covered by the Act has engaged in conduct described in subsection (a) or (c) of section 591 of this title, the Attorney General’’ for ‘‘The Attorney Gen- eral, upon receiving specific information that any of the persons described in section 591(b) of this title has engaged in conduct described in section 591(a) of this title,’’, inserted ‘‘In determining whether grounds to investigate exist, the Attorney General shall consider— (A) the degree of specificity of the information re- ceived, and (B) the credibility of the source of the in- formation.’’, and added par. (2). Subsec. (b)(1). Pub. L. 97–409, §§ 2(a)(1)(A), 4(c), sub- stituted ‘‘that there are no reasonable grounds to be- lieve that further investigation or prosecution is war- ranted’’ for ‘‘that the matter is so unsubstantiated that no further investigation or prosecution is warranted’’ and substituted ‘‘independent counsel’’ for ‘‘special prosecutor’’. Subsec. (c)(1). Pub. L. 97–409, §§ 2(a)(1)(A), 4(d), sub- stituted ‘‘finds reasonable grounds to believe that fur- ther investigation or prosecution is warranted’’ for ‘‘finds the matter warrants further investigation or prosecution’’ after ‘‘preliminary investigation’’, ‘‘that there are no reasonable grounds to believe that further investigation or prosecution is warranted’’ for ‘‘that the matter is so unsubstantiated as not to warrant fur- ther investigation or prosecution’’, and ‘‘independent counsel’’ for ‘‘special prosecutor’’, and inserted provi- sion that in determining whether reasonable grounds exist to warrant further investigation or prosecution, the Attorney General shall comply with written or other established policies of the Department of Justice with respect to the enforcement of criminal laws. Subsec. (c)(2). Pub. L. 97–409, § 2(a)(1)(A), substituted ‘‘independent counsel’’ for ‘‘special prosecutor’’ in pro- visions following subpar. (B). Subsec. (c)(2)(A). Pub. L. 97–409, § 4(e)(1), substituted ‘‘information sufficient to constitute grounds to inves- tigate’’ for ‘‘specific information’’ after ‘‘receives addi- tional’’. Subsec. (c)(2)(B). Pub. L. 97–409, § 4(e)(2), substituted ‘‘reasonable grounds exist to warrant’’ for ‘‘such infor- mation warrants’’ after ‘‘appropriate, that’’. Subsecs. (d)(1), (e), (f). Pub. L. 97–409, § 2(a)(1), sub- stituted ‘‘independent counsel’’ for ‘‘special pros- ecutor’’ and ‘‘independent counsel’s’’ for ‘‘special pros- ecutor’s’’ wherever appearing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–270 applicable with re- spect to independent counsels appointed before, on, or after June 30, 1994, see section 7(a) of Pub. L. 103–270, set out as an Effective Date of 1994 Amendment; Tran- sition Provisions note under section 591 of this title. EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100–191 effective Dec. 15, 1987, and applicable to proceedings initiated and independent counsels appointed on and after Dec. 15, 1987, see sec- tion 6 of Pub. L. 100–191, set out as a note under section 591 of this title. § 593. Duties of the division of the court (a) REFERENCE TO DIVISION OF THE COURT.—The division of the court to which this chapter refers is the division established under section 49 of this title. (b) APPOINTMENT AND JURISDICTION OF INDE- PENDENT COUNSEL.— (1) AUTHORITY.—Upon receipt of an applica- tion under section 592(c), the division of the court shall appoint an appropriate inde- pendent counsel and shall define that inde- pendent counsel’s prosecutorial jurisdiction. (2) QUALIFICATIONS OF INDEPENDENT COUN- SEL.—The division of the court shall appoint as independent counsel an individual who has appropriate experience and who will conduct the investigation and any prosecution in a prompt, responsible, and cost-effective man- ner. The division of the court shall seek to ap- point as independent counsel an individual who will serve to the extent necessary to com- plete the investigation and any prosecution without undue delay. The division of the court may not appoint as an independent counsel any person who holds any office of profit or trust under the United States. Page 261 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 593 1 So in original. 2 So in original. Probably should be preceded by ‘‘the’’. (3) SCOPE OF PROSECUTORIAL JURISDICTION.— In defining the independent counsel’s prosecu- torial jurisdiction, the division of the court shall assure that the independent counsel has adequate authority to fully investigate and prosecute the subject matter with respect to which the Attorney General has requested the appointment of the independent counsel, and all matters related to that subject matter. Such jurisdiction shall also include the au- thority to investigate and prosecute Federal crimes, other than those classified as Class B or C misdemeanors or infractions, that may arise out of the investigation or prosecution of the matter with respect to which the Attorney General’s request was made, including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses. (4) DISCLOSURE OF IDENTITY AND PROSECU- TORIAL JURISDICTION.—An independent coun- sel’s identity and prosecutorial jurisdiction (including any expansion under subsection (c)) may not be made public except upon the re- quest of the Attorney General or upon a deter- mination of the division of the court that dis- closure of the identity and prosecutorial juris- diction of such independent counsel would be in the best interests of justice. In any event, the identity and prosecutorial jurisdiction of such independent counsel shall be made public when any indictment is returned, or any criminal information is filed, pursuant to the independent counsel’s investigation. (c) EXPANSION OF JURISDICTION.— (1) IN GENERAL.—The division of the court, upon the request of the Attorney General, may expand the prosecutorial jurisdiction of an independent counsel, and such expansion may be in lieu of the appointment of another inde- pendent counsel. (2) PROCEDURE FOR REQUEST BY INDEPENDENT COUNSEL.—(A) If the independent counsel dis- covers or receives information about possible violations of criminal law by persons as pro- vided in section 591, which are not covered by the prosecutorial jurisdiction of the inde- pendent counsel, the independent counsel may submit such information to the Attorney Gen- eral. The Attorney General shall then conduct a preliminary investigation of the information in accordance with the provisions of section 592, except that such preliminary investiga- tion shall not exceed 30 days from the date such information is received. In making the determinations required by section 592, the Attorney General shall give great weight to any recommendations of the independent counsel. (B) If the Attorney General determines, after according great weight to the rec- ommendations of the independent counsel, that there are no reasonable grounds to be- lieve that further investigation is warranted, the Attorney General shall promptly so notify the division of the court and the division of the court shall have no power to expand the jurisdiction of the independent counsel or to appoint another independent counsel with re- spect to the matters involved. (C) If— (i) the Attorney General determines that there are reasonable grounds to believe that further investigation is warranted; or (ii) the 30-day period referred to in sub- paragraph (A) elapses without a notification to the division of the court that no further investigation is warranted, the division of the court shall expand the ju- risdiction of the appropriate independent counsel to include the matters involved or shall appoint another independent counsel to investigate such matters. (d) RETURN FOR FURTHER EXPLANATION.—Upon receipt of a notification under section 592 or subsection (c)(2)(B) of this section from the At- torney General that there are no reasonable grounds to believe that further investigation is warranted with respect to information received under this chapter, the division of the court shall have no authority to overrule this deter- mination but may return the matter to the At- torney General for further explanation of the reasons for such determination. (e) VACANCIES.—If a vacancy in office arises by reason of the resignation, death, or removal of an independent counsel, the division of the court shall appoint an independent counsel to com- plete the work of the independent counsel whose resignation, death, or removal caused the va- cancy, except that in the case of a vacancy aris- ing by reason of the removal of an independent counsel, the division of the court may appoint an acting independent counsel to serve until any judicial review of such removal is completed. (f) ATTORNEYS’ FEES.— (1) AWARD OF FEES.—Upon the request of an individual who is the subject of an investiga- tion conducted by an independent counsel pur- suant to this chapter, the division of the court may, if no indictment is brought against such individual pursuant to that investigation, award reimbursement for those reasonable at- torneys’ fees incurred by that individual dur- ing that investigation which would not have been incurred but for the requirements of this chapter. The division of the court shall notify the the 1 independent counsel who conducted the investigation and Attorney 2 General of any request for attorneys’ fees under this sub- section. (2) EVALUATION OF FEES.—The division of the court shall direct such independent counsel and the Attorney General to file a written evaluation of any request for attorneys’ fees under this subsection, addressing— (A) the sufficiency of the documentation; (B) the need or justification for the under- lying item; (C) whether the underlying item would have been incurred but for the requirements of this chapter; and (D) the reasonableness of the amount of money requested. (g) DISCLOSURE OF INFORMATION.—The division of the court may, subject to section 594(h)(2), allow the disclosure of any notification, applica- tion, or any other document, material, or Page 262 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 594 memorandum supplied to the division of the court under this chapter. (h) AMICUS CURIAE BRIEFS.—When presented with significant legal issues, the division of the court may disclose sufficient information about the issues to permit the filing of timely amicus curiae briefs. (Added Pub. L. 95–521, title VI, § 601(a), Oct. 26, 1978, 92 Stat. 1869; amended Pub. L. 97–409, §§ 2(a)(1), 5, Jan. 3, 1983, 96 Stat. 2039, 2041; Pub. L. 100–191, § 2, Dec. 15, 1987, 101 Stat. 1297; Pub. L. 103–270, § 3(n), June 30, 1994, 108 Stat. 736.) Editorial Notes AMENDMENTS 1994—Subsec. (f)(1). Pub. L. 103–270, § 3(n)(1), inserted ‘‘the independent counsel who conducted the investiga- tion and’’ before ‘‘Attorney General’’ in last sentence. Subsec. (f)(2). Pub. L. 103–270, § 3(n)(2), in introductory provisions substituted ‘‘shall direct such independent counsel and’’ for ‘‘may direct’’ and ‘‘subsection, ad- dressing—’’ for ‘‘subsection, analyzing for each ex- pense—’’, added subpars. (A) to (D) and struck out former subpars. (A) to (C) which read as follows: ‘‘(A) the sufficiency of the documentation; ‘‘(B) the need or justification for the underlying item; and ‘‘(C) the reasonableness of the amount of money re- quested.’’ 1987—Pub. L. 100–191 amended section generally, sub- stituting subsecs. (a) to (h) for former subsecs. (a) to (g) which related to similar subject matter. 1983—Subsec. (b). Pub. L. 97–409, § 2(a)(1), substituted ‘‘independent counsel’’ for ‘‘special prosecutor’’ and ‘‘independent counsel’s’’ for ‘‘special prosecutor’s’’ wherever appearing. Subsecs. (c) to (e). Pub. L. 97–409, § 2(a)(1)(A), sub- stituted ‘‘independent counsel’’ for ‘‘special pros- ecutor’’ wherever appearing. Subsecs. (f), (g). Pub. L. 97–409, § 5, added subsecs. (f) and (g). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT; TRANSITION PROVISIONS Amendment by Pub. L. 103–270 applicable with re- spect to independent counsels appointed before, on, or after June 30, 1994, and, notwithstanding restriction in subsec. (b)(2) of this section, the division of the court described in section 49 of this title is authorized to ap- point as an independent counsel any individual who, on June 30, 1994, is serving as a regulatory independent counsel under parts 600 and 603 of title 28, Code of Fed- eral Regulations, see section 7(a), (h) of Pub. L. 103–270, set out as a note under section 591 of this title. EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100–191 effective Dec. 15, 1987, and applicable to proceedings initiated and independent counsels appointed on and after Dec. 15, 1987, but with subsec. (f) applicable to previously initiated pro- ceedings pending on Dec. 15, 1987, see section 6 of Pub. L. 100–191, set out as a note under section 591 of this title. § 594. Authority and duties of an independent counsel (a) AUTHORITIES.—Notwithstanding any other provision of law, an independent counsel ap- pointed under this chapter shall have, with re- spect to all matters in such independent coun- sel’s prosecutorial jurisdiction established under this chapter, full power and independent author- ity to exercise all investigative and prosecu- torial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Jus- tice, except that the Attorney General shall ex- ercise direction or control as to those matters that specifically require the Attorney General’s personal action under section 2516 of title 18. Such investigative and prosecutorial functions and powers shall include— (1) conducting proceedings before grand ju- ries and other investigations; (2) participating in court proceedings and engaging in any litigation, including civil and criminal matters, that such independent coun- sel considers necessary; (3) appealing any decision of a court in any case or proceeding in which such independent counsel participates in an official capacity; (4) reviewing all documentary evidence available from any source; (5) determining whether to contest the as- sertion of any testimonial privilege; (6) receiving appropriate national security clearances and, if necessary, contesting in court (including, where appropriate, partici- pating in in camera proceedings) any claim of privilege or attempt to withhold evidence on grounds of national security; (7) making applications to any Federal court for a grant of immunity to any witness, con- sistent with applicable statutory require- ments, or for warrants, subpoenas, or other court orders, and, for purposes of sections 6003, 6004, and 6005 of title 18, exercising the author- ity vested in a United States attorney or the Attorney General; (8) inspecting, obtaining, or using the origi- nal or a copy of any tax return, in accordance with the applicable statutes and regulations, and, for purposes of section 6103 of the Internal Revenue Code of 1986 and the regulations issued thereunder, exercising the powers vest- ed in a United States attorney or the Attorney General; (9) initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States; and (10) consulting with the United States attor- ney for the district in which any violation of law with respect to which the independent counsel is appointed was alleged to have oc- curred. (b) COMPENSATION.— (1) IN GENERAL.—An independent counsel ap- pointed under this chapter shall receive com- pensation at the per diem rate equal to the an- nual rate of basic pay payable for level IV of the Executive Schedule under section 5315 of title 5. (2) TRAVEL EXPENSES.—Except as provided in paragraph (3), an independent counsel and per- sons appointed under subsection (c) shall be entitled to the payment of travel expenses as provided by subchapter I of chapter 57 of title 5, United States Code, including travel, per diem, and subsistence expenses in accordance with section 5703 of title 5. (3) TRAVEL TO PRIMARY OFFICE.—