28 U.S.C. § 592 — Preliminary investigation and application

Page 258 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 592 actment of this Act, is serving as a regulatory inde- pendent counsel under parts 600 and 603 of title 28, Code of Federal Regulations. If such an individual is so ap- pointed, such an independent counsel shall comply with chapter 40 of title 28, United States Code, as amended by this Act, in the same manner and to the same extent as an independent counsel appointed before the date of enactment of this Act is required to comply with that chapter, except that subsection (f) of this section shall not apply to such an independent counsel. ‘‘(i) WHITE HOUSE PERSONNEL REPORT.—Section 6 [en- acting provisions set out as a note under section 113 of Title 3, The President] shall take effect on January 1, 1995.’’ EFFECTIVE DATE OF 1987 AMENDMENT Pub. L. 100–191, § 6, Dec. 15, 1987, 101 Stat. 1307, pro- vided that: ‘‘(a) IN GENERAL.—Subject to subsection (b), the amendments made by this Act [enacting section 599 of this title, amending this section, sections 49 and 592 to 598 of this title, sections 203 and 205 of Pub. L. 95–521 set out in the Appendix to Title 5, Government Organiza- tion and Employees, and section 202 of Title 18, Crimes and Criminal Procedure, enacting provisions set out as a note under section 1 of this title, and amending provi- sions set out below] take effect on the date of the en- actment of this Act [Dec. 15, 1987]. ‘‘(b) PENDING PROCEEDINGS.—With respect to any pro- ceeding under chapter 39 of title 28, United States Code (before the redesignation of such chapter as chapter 40 by section 144(g) of Public Law 99–554), or under chapter 40 of such title (after such redesignation), which is pending on the date of the enactment of this Act [Dec. 15, 1987], the following shall apply: ‘‘(1) Except as provided in paragraphs (2) and (3), the provisions of chapter 40 of such title as in effect on the day before such date of enactment shall, in lieu of the amendments made by this Act, continue to apply on or after such date to such proceeding until such proceeding is terminated in accordance with such chapter. ‘‘(2) The following provisions shall apply to such proceeding on or after such date of enactment: ‘‘(A) Section 593(f) of title 28, United States Code, as amended by section 2 of this Act, relating to the award of attorneys’ fees. ‘‘(B) Section 594(d)(2) of such title, as added by section 2 of this Act, to the extent that such sec- tion 594(d)(2) relates to reports by the Attorney General on expenditures by independent counsel, except that the first such report shall be made only with respect to expenditures on or after the date of the enactment of this Act. ‘‘(C) Section 594(h)(1)(A) of such title, as added by section 2 of this Act, relating to reports by inde- pendent counsel, except that the 6-month periods described in such section 594(h)(1)(A) shall be cal- culated from the date of the enactment of this Act. ‘‘(D) Section 594(i) of such title, as added by sec- tion 2 of this Act, relating to the independence of the office of independent counsel for certain pur- poses. ‘‘(E) Section 594(k) of such title, as added by sec- tion 2 of this Act, relating to custody of records of independent counsel. ‘‘(F) Section 596(a)(3) of such title, as amended by section 2 of this Act, relating to judicial review of the removal of an independent counsel from office. ‘‘(G) Section 596(c) of such title, as added by sec- tion 2 of this Act, relating to audits of expenditures of independent counsel. ‘‘(H) The amendments made by section 3 of this Act [amending sections 203 and 205 of Pub. L. 95–521, set out in Appendix to Title 5, and section 202 of Title 18], relating to the status of independent counsel and their appointees as special government employees and to their financial disclosure require- ments. ‘‘(3) Section 594(j) of title 28, United States Code, as added by section 2 of this Act, relating to certain standards of conduct shall, 90 days after the date of the enactment of this Act, apply to a pending pro- ceeding described in this subsection.’’ EFFECTIVE DATE OF 1984 AMENDMENT Pub. L. 98–473, title II, § 235(a)(1)(B)(ii)(IV), Oct. 12, 1984, 98 Stat. 2032, provided that the amendment made by Pub. L. 98–473 is effective Oct. 12, 1984. EFFECTIVE DATE Pub. L. 95–521, title VI, § 604, Oct. 26, 1978, 92 Stat. 1875, provided that: ‘‘Except as provided in this section, the amendments made by this title [enacting this chap- ter and sections 49, 528, and 529 of this title] shall take effect on the date of the enactment of this Act [Oct. 26, 1978]. The provisions of chapter 39 of title 28 of the United States Code, as added by section 601 of this Act, shall not apply to specific information received by the Attorney General pursuant to section 591 of such title 28, if the Attorney General determines that— ‘‘(1) such specific information is directly related to a prosecution pending at the time such specific infor- mation is received by the Attorney General; ‘‘(2) such specific information is related to a matter which has been presented to a grand jury and is re- ceived by the Attorney General within one hundred and eighty days of the date of the enactment of this Act; or ‘‘(3) such specific information is related to an inves- tigation that is pending at the time such specific in- formation is received by the Attorney General, and such specific information is received by the Attorney General within ninety days of the date of the enact- ment of this Act.’’ PERMANENT APPROPRIATION FOR EXPENSES OF INDEPENDENT COUNSELS Pub. L. 100–202, § 101(a) [title II], Dec. 22, 1987, 101 Stat. 1329, 1329–9, as amended by Pub. L. 111–68, div. A, title I, § 1501(d), Oct. 1, 2009, 123 Stat. 2041, provided: ‘‘That a permanent indefinite appropriation is estab- lished within the Department of Justice to pay all nec- essary expenses of investigations and prosecutions by independent counsel appointed pursuant to the provi- sions of 28 U.S.C. 591 et seq. or other law’’. CONTINGENCY FUND FOR INDEPENDENT COUNSELS Pub. L. 95–521, title VI, § 601(c), Oct. 26, 1978, 92 Stat. 1873, as amended by Pub. L. 97–409, § 2(c)(2), Jan. 3, 1983, 96 Stat. 2039; Pub. L. 100–191, § 5(b), Dec. 15, 1987, 101 Stat. 1307, provided that: ‘‘There are authorized to be appropriated for each fiscal year such sums as may be necessary, to be held by the Department of Justice as a contingent fund for the use of any independent coun- sels appointed under chapter 40 (relating to inde- pendent counsels) of title 28 of the United States Code in the carrying out of functions under such chapter.’’ § 592. Preliminary investigation and application for appointment of an independent counsel (a) CONDUCT OF PRELIMINARY INVESTIGATION.— (1) IN GENERAL.—A preliminary investigation conducted under this chapter shall be of such matters as the Attorney General considers ap- propriate in order to make a determination, under subsection (b) or (c), on whether further investigation is warranted, with respect to each potential violation, or allegation of a vio- lation, of criminal law. The Attorney General shall make such determination not later than 90 days after the preliminary investigation is commenced, except that, in the case of a pre- liminary investigation commenced after a congressional request under subsection (g), the Attorney General shall make such determina- tion not later than 90 days after the request is Page 259 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 592 received. The Attorney General shall promptly notify the division of the court specified in section 593(a) of the commencement of such preliminary investigation and the date of such commencement. (2) LIMITED AUTHORITY OF ATTORNEY GEN- ERAL.—(A) In conducting preliminary inves- tigations under this chapter, the Attorney General shall have no authority to convene grand juries, plea bargain, grant immunity, or issue subpoenas. (B)(i) The Attorney General shall not base a determination under this chapter that infor- mation with respect to a violation of criminal law by a person is not specific and from a cred- ible source upon a determination that such person lacked the state of mind required for the violation of criminal law. (ii) The Attorney General shall not base a determination under this chapter that there are no reasonable grounds to believe that fur- ther investigation is warranted, upon a deter- mination that such person lacked the state of mind required for the violation of criminal law involved, unless there is clear and convincing evidence that the person lacked such state of mind. (3) EXTENSION OF TIME FOR PRELIMINARY IN- VESTIGATION.—The Attorney General may apply to the division of the court for a single extension, for a period of not more than 60 days, of the 90-day period referred to in para- graph (1). The division of the court may, upon a showing of good cause, grant such extension. (b) DETERMINATION THAT FURTHER INVESTIGA- TION NOT WARRANTED.— (1) NOTIFICATION OF DIVISION OF THE COURT.— If the Attorney General, upon completion of a preliminary investigation under this chapter, determines that there are no reasonable grounds to believe 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 appoint an independent counsel with respect to the matters involved. (2) FORM OF NOTIFICATION.—Such notification shall contain a summary of the information received and a summary of the results of the preliminary investigation. (c) DETERMINATION THAT FURTHER INVESTIGA- TION IS WARRANTED.— (1) APPLICATION FOR APPOINTMENT OF INDE- PENDENT COUNSEL.—The Attorney General shall apply to the division of the court for the appointment of an independent counsel if— (A) the Attorney General, upon completion of a preliminary investigation under this chapter, determines that there are reason- able grounds to believe that further inves- tigation is warranted; or (B) the 90-day period referred to in sub- section (a)(1), and any extension granted under subsection (a)(3), have elapsed and the Attorney General has not filed a notification with the division of the court under sub- section (b)(1). In determining under this chapter whether reasonable grounds exist to warrant further investigation, the Attorney General shall comply with the written or other established policies of the Department of Justice with re- spect to the conduct of criminal investiga- tions. (2) RECEIPT OF ADDITIONAL INFORMATION.—If, after submitting a notification under sub- section (b)(1), the Attorney General receives additional information sufficient to constitute grounds to investigate the matters to which such notification related, the Attorney Gen- eral shall— (A) conduct such additional preliminary investigation as the Attorney General con- siders appropriate for a period of not more than 90 days after the date on which such ad- ditional information is received; and (B) otherwise comply with the provisions of this section with respect to such addi- tional preliminary investigation to the same extent as any other preliminary investiga- tion under this section. (d) CONTENTS OF APPLICATION.—Any applica- tion for the appointment of an independent counsel under this chapter shall contain suffi- cient information to assist the division of the court in selecting an independent counsel and in defining that independent counsel’s prosecu- torial jurisdiction so that the independent coun- sel has adequate authority to fully investigate and prosecute the subject matter and all mat- ters related to that subject matter. (e) DISCLOSURE OF INFORMATION.—Except as otherwise provided in this chapter or as is deemed necessary for law enforcement purposes, no officer or employee of the Department of Jus- tice or an office of independent counsel may, without leave of the division of the court, dis- close to any individual outside the Department of Justice or such office any notification, appli- cation, or any other document, materials, or memorandum supplied to the division of the court under this chapter. Nothing in this chap- ter shall be construed as authorizing the with- holding of information from the Congress. (f) LIMITATION ON JUDICIAL REVIEW.—The At- torney General’s determination under this chap- ter to apply to the division of the court for the appointment of an independent counsel shall not be reviewable in any court. (g) CONGRESSIONAL REQUEST.— (1) BY JUDICIARY COMMITTEE OR MEMBERS THEREOF.—The Committee on the Judiciary of either House of the Congress, or a majority of majority party members or a majority of all nonmajority party members of either such committee, may request in writing that the Attorney General apply for the appointment of an independent counsel. (2) REPORT BY ATTORNEY GENERAL PURSUANT TO REQUEST.—Not later than 30 days after the receipt of a request under paragraph (1), the Attorney General shall submit, to the com- mittee making the request, or to the com- mittee on which the persons making the re- quest serve, a report on whether the Attorney General has begun or will begin a preliminary investigation under this chapter of the mat- ters with respect to which the request is made, in accordance with subsection (a) or (c) of sec- tion 591, as the case may be. The report shall set forth the reasons for the Attorney Gen- 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.