[Federal Register Volume 64, Number 131 (Friday, July 9, 1999)]
[Rules and Regulations]
[Pages 37038-37044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17327]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Parts 0 and 600
[A.G. Order No. 2232-99]
Office of Special Counsel
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This order amends the Code of Federal Regulations to provide
regulations concerning Attorney General appointment of Special Counsel
to investigate and, when appropriate, to prosecute matters when the
Attorney General concludes that extraordinary circumstances exist such
that the public interest would be served by removing a large degree of
responsibility for a matter from the Department of Justice. These
regulations replace the procedures for appointment of independent
counsel pursuant to the Independent Counsel Reauthorization Act of
1994.
EFFECTIVE DATES: July 1, 1999.
FOR FURTHER INFORMATION CONTACT: John C. Keeney, Deputy Assistant
Attorney General, Criminal Division, U.S. Department of Justice,
Washington, D.C. 20530, (202) 514-2621.
SUPPLEMENTARY INFORMATION:
Background
The Attorney General is promulgating these regulations to replace
the procedures set out in the Independent Counsel Reauthorization Act
of 1994. These 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
balance struck is one of day-to-day independence, with a Special
Counsel appointed to investigate and, if appropriate, prosecute matters
when the Attorney General concludes that extraordinary circumstances
exist such that the public interest would be served by removing a large
degree of responsibility for the matter from the Department of Justice.
The Special Counsel would be free to structure the investigation as he
or she wishes and to exercise independent prosecutorial discretion to
decide whether charges should be brought, within the context of the
established procedures of the Department. Nevertheless, it is intended
that ultimate responsibility for the matter and how it is handled will
continue to rest with the Attorney General (or the Acting Attorney
General if the Attorney General is personally recused in the matter);
thus, the regulations explicitly acknowledge the possibility of review
of specific decisions reached by the Special Counsel.
The regulations also remove Sec. 0.14, setting forth procedures for
Special Independent Counsels for members of Congress. The regulations
in that section have been suspended since April 19, 1989. 54 FR 15752.
Section-by-Section Discussion
Section 600.1 Grounds for Appointing a Special Counsel
``The Attorney General, or in cases in which the Attorney General
is recused, the Acting Attorney General, will appoint a Special Counsel
when he or she determines that criminal investigation of a person or
matter is warranted and--
(a) That investigation or prosecution of that person or matter by a
United States Attorney's Office or litigating Division of the
Department of Justice would present a conflict of interest for the
Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public
interest to appoint an outside Special Counsel to assume responsibility
for the matter.''
Section 600.2 Alternatives Available to the Attorney General
``When matters are brought to the attention of the Attorney General
that might warrant consideration of appointment of a Special Counsel,
the Attorney General may:
(a) Appoint a Special Counsel;
(b) Direct that an initial investigation, consisting of such
factual inquiry or legal research as the Attorney General deems
appropriate, be conducted in order to better inform the decision; or
(c) Conclude that under the circumstances of the matter, the public
interest would not be served by removing the investigation from the
normal processes of the Department, and that the appropriate component
of the Department should handle the matter. If the Attorney General
reaches this conclusion, he or she may direct that appropriate steps be
taken to mitigate any conflicts of interest, such as recusal of
particular officials.''
Discussion
There are occasions 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. In other situations, some initial investigation,
whether factual or legal, may be appropriate to better inform the
Attorney General's decision. This provision is intended to make it
clear that a variety of approaches, even in cases that might create an
apparent conflict of interest, may be appropriate, depending on the
facts of the matter.
Section 600.3 Qualifications of the Special Counsel
``(a) 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.
The Special Counsel shall be selected from outside the United States
Government. Special Counsels shall agree that their responsibilities as
Special Counsel shall take first precedence in their professional
lives, and that it may be necessary to devote their full time to the
investigation, depending on its complexity and the stage of the
investigation.
``(b) The Attorney General shall consult with the Assistant
Attorney General for Administration to ensure an appropriate method of
appointment, and to ensure that a Special Counsel undergoes an
appropriate background investigation and a detailed review of ethics
and conflicts of interest issues. A Special Counsel shall be appointed
as a `confidential employee' as defined in 5 U.S.C. 7511(b)(2)(C).''
Section 600.4 Jurisdiction
``(a) Original Jurisdiction. The jurisdiction of a Special Counsel
shall be established by the Attorney General. The Special Counsel will
be provided with a specific factual statement of the matter to be
investigated. The jurisdiction of a Special Counsel shall also include
the authority to investigate and prosecute federal crimes committed in
the course of, and with intent to interfere with, the Special Counsel's
investigation, such as perjury, obstruction of justice, destruction of
evidence, and intimidation of witnesses;
[[Page 37039]]
and to conduct appeals arising out of the matter being investigated
and/or prosecuted.
``(b) Additional Jurisdiction. If in the course of his or her
investigation the Special Counsel concludes that additional
jurisdiction beyond that specified in his or her original jurisdiction
is necessary in order to fully investigate and resolve the matters
assigned, or to investigate new matters that come to light in the
course of his or her investigation, he or she shall consult with the
Attorney General, who will determine whether to include the additional
matters within the Special Counsel's jurisdiction or assign them
elsewhere.''
Discussion
Under these regulations, it is intended that a Special Counsel's
jurisdiction will be stated as an investigation of specific facts. The
regulations also recognize, however, that accommodations can be made as
necessary throughout the course of the investigation, with the Attorney
General's approval. This provision establishes 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.
Paragraph (b) establishes a single procedure through which a
variety of different jurisdictional issues can be resolved. For
example, a Special Counsel assigned responsibility for an alleged false
statement about a government program may request additional
jurisdiction to investigate allegations of misconduct with respect to
the administration of that program; a Special Counsel may conclude that
investigating otherwise unrelated allegations against a central witness
in the matter is necessary to obtain cooperation; or a Special Counsel
may come across evidence of additional, unrelated crimes by targets of
his or her investigation. Rather than leaving the issue to argument and
misunderstanding as to whether the new matters are included within a
vague category of ``related matters,'' the regulations clarify that the
decision as to which component would handle such new matters would be
made by the Attorney General. The Special Counsel would report such
matters to the Attorney General, and the Attorney General would decide
whether to grant the Special Counsel jurisdiction over the additional
matters.
``(c) Civil and Administrative Jurisdiction. If in the course of
his or her investigation the Special Counsel determines that
administrative remedies, civil sanctions or other governmental action
outside the criminal justice system might be appropriate, he or she
shall consult with the Attorney General with respect to the appropriate
component to take any necessary action. A Special Counsel shall not
have civil or administrative authority unless specifically granted such
jurisdiction by the Attorney General.''
Discussion
Paragraph (c) is intended to clarify that the Special Counsel's
jurisdiction will cover only the criminal aspects of the matters within
his or her jurisdiction, unless other jurisdiction is specifically
granted by the Attorney General.
Section 600.5 Staff
``A Special Counsel may request the assignment of appropriate
Department employees to assist the Special Counsel. The Department
shall gather and provide the Special Counsel with the names and resumes
of appropriate personnel available for detail. The Special Counsel may
also request the detail of specific employees, and the office for which
the designated employee works shall make reasonable efforts to
accommodate the request. The Special Counsel shall assign the duties
and supervise the work of such employees while they are assigned to the
Special Counsel. If necessary, the Special Counsel may request that
additional personnel be hired or assigned from outside the Department.
All personnel in the Department shall cooperate to the fullest extent
possible with the Special Counsel.''
Discussion
This provision, providing for the assignment of appropriate
personnel to assist the Special Counsel, also includes assignment of
needed investigative resources from the Federal Bureau of
Investigation. It is anticipated that most personnel will be Department
of Justice employees provided by detail to the Special Counsel,
although the regulation provides for additional employment from outside
the Department when necessary.
Section 600.6 Powers and Authority
``Subject to the limitations in the following paragraphs, the
Special Counsel shall exercise, within the scope of his or her
jurisdiction, the full power and independent authority to exercise all
investigative and prosecutorial functions of any United States
Attorney. 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.''
Section 600.7 Conduct and Accountability
``(a) A Special Counsel shall comply with the rules, regulations,
procedures, practices and policies of the Department of Justice. He or
she shall consult with appropriate offices within the Department for
guidance with respect to established practices, policies and procedures
of the Department, including ethics and security regulations and
procedures. 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.''
Discussion
Review and approval procedures are the way in which the Department
typically addresses the most sensitive legal and policy issues facing
its prosecutors. Such matters are usually not dealt with by mandatory
substantive rules; rather, the Department recognizes that even the most
controversial and risky investigative or prosecutorial steps might in
extraordinary circumstances be justified. Therefore, such issues are
generally handled by requiring a variety of levels of review and
approval before the step can be taken. Were Special Counsels to be
exempt from these procedural requirements, they would be left without
relevant controls and without Departmental guidance in the most
sensitive situations.
There are often sound institutional reasons for review and approval
provisions that transcend the merits of any particular case. For
example, the Department has concluded over time that the long-term
interests in case law development, served by the requirement that the
Solicitor General personally approve Departmental appeals, may outweigh
the importance of any single prosecution. Finally, requiring compliance
with review and approval procedures ensures that the Department's
institutional judgment will be available to inform the Special
Counsel's decisionmaking process in the particular case.
This provision therefore will allow a wide range of independent
decisionmaking by the Special Counsel, while at the same time it will
help to guard against a Special Counsel becoming too insulated and
narrow in
[[Page 37040]]
his or her view of the matter under investigation. Most review and
approval procedures are conducted by and through long-term career
Departmental officials with substantial and invaluable institutional
memory and historical perspective.
At the same time, this provision permits the Special Counsel in
extraordinary circumstances to proceed without complying with the
Department's required review and approval procedures by consulting with
the Attorney General. This provides a substantial degree of independent
decisionmaking to the Special Counsel, while enhancing his or her
accountability for the decision. Should the Special Counsel determine
that the extraordinary circumstances of a particular decision make it
inappropriate to comply with the established rules, regulations,
procedures, practices and policies of the Department, the review and
approval process may be bypassed through direct consultation with the
Attorney General.
``(b) The Special Counsel shall not be subject to the day-to-day
supervision of any official of the Department. However, the Attorney
General may request that the Special Counsel provide an explanation for
any investigative or prosecutorial step, and may after review conclude
that the action is so inappropriate or unwarranted under established
Departmental practices that it should not be pursued. In conducting
that review, the Attorney General will give great weight to the views
of the Special Counsel. If the Attorney General concludes that a
proposed action by a Special Counsel should not be pursued, the
Attorney General shall notify Congress as specified in
Sec. 600.9(a)(3).''
Discussion
Paragraph (b) permits the Attorney General to determine, after a
review in which substantial deference is given to the views of the
Special Counsel, that an action is so inappropriate or unwarranted
under established Departmental practices that it should not be pursued.
``(c) The 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 such matters shall be handled
through the appropriate office of the Department upon the approval of
the Attorney General.
(d) The Special Counsel may be disciplined or removed from office
only by the personal action of the Attorney General. The Attorney
General may remove a Special Counsel for misconduct, dereliction of
duty, incapacity, conflict of interest, or for other good cause,
including violation of Departmental policies. The Attorney General
shall inform the Special Counsel in writing of the specific reason for
his or her removal.''
Discussion
Paragraphs (c) and (d) provide protection for a Special Counsel by
providing that the Attorney General may remove the Special Counsel only
for good cause, several examples of which are provided in the
regulation. Violation of Departmental policies is specifically
identified as a ground that may warrant removal. The willful violation
of some policies might warrant removal or other disciplinary action,
and a series of negligent or careless overlooking of important policies
might similarly warrant removal or other disciplinary action. Such
conduct also would be encompassed within the articulated standard of
misconduct or dereliction of duty. There are, of course, other
violations of Departmental policies and guidelines that would not
ordinarily be grounds for removal or other disciplinary action.
Section 600.8 Notification and Reports by the Special Counsel
``(a) Budget. (1) A Special Counsel shall be provided all
appropriate resources by the Department of Justice. Within the first 60
days of his or her appointment, the Special Counsel shall develop a
proposed budget for the current fiscal year with the assistance of the
Justice Management Division for the Attorney General's review and
approval. Based on the proposal, the Attorney General shall establish a
budget for the operations of the Special Counsel. The budget shall
include a request for assignment of personnel, with a description of
the qualifications needed.
(2) Thereafter, 90 days before the beginning of each fiscal year,
the Special Counsel shall report to the Attorney General the status of
the investigation, and provide a budget request for the following year.
The Attorney General shall determine whether the investigation should
continue and, if so, establish the budget for the next year.''
Discussion
The annual report to the Attorney General and budget request for
the coming year 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. This annual review will provide an opportunity for
the Special Counsel to present his or her budget request for the
upcoming year as well. It should be emphasized that this annual report
is intended to be only a status report. The Special Counsel will not be
subject to the day-to-day supervision of the Attorney General or any
other Departmental official, and the annual report will not serve as a
vehicle for ongoing supervision. Rather, the Attorney General will use
the report to determine whether the investigation should continue, and
what the budget for the coming year should be. For example, there may
be no need for the Special Counsel to remain in office to handle final
details, such as a routine appeal following a conviction.
``(b) Notification of Significant Events. The Special Counsel shall
notify the Attorney General of events in the course of his or her
investigation in conformity with the Departmental guidelines with
respect to Urgent Reports.''
Discussion
Paragraph (b) requires Special Counsels to notify the Attorney
General in certain circumstances. Those circumstances 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. Given this sensitivity, notification
of proposed indictments and other significant events in the course of
the investigation, with the resulting opportunity for consultation, is
a critical part of the mechanism through which the Attorney General can
discharge his or her responsibilities with respect to the
investigation.
``(c) Closing Documentation. At the conclusion of the Special
Counsel's work, he or she shall provide the Attorney General with a
confidential report explaining the prosecution or declination decisions
reached by the Special Counsel.''
Discussion
Much legitimate concern has been expressed about the Final Report
requirement of the Independent Counsel Act, with respect to both the
incentives
[[Page 37041]]
it creates to over-investigate a matter and the fact that, since it
often becomes a public document, it can do harm to legitimate privacy
interests. On the other hand, 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. 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.
The principal source of the problems with the Final Report
requirement as set forth in the Independent Counsel Act is the fact
that the Report typically has been made public, unlike the closing
documentation of any other criminal investigation. This single fact
both provides an incentive to over-investigate, in order to avoid
potential public criticism for not having turned over every stone, and
creates potential harm to individual privacy interests.
Therefore, these regulations impose a limited reporting requirement
on all Special Counsels, in the form of a summary final report to the
Attorney General. This report will be handled as a confidential
document, as are internal documents relating to any federal criminal
investigation. The interests of the public in being informed of and
understanding the reasons for the actions of the Special Counsel will
be addressed in the final set of reporting requirements, discussed
below.
Section 600.9 Notification and Reports by the Attorney General
``(a) The Attorney General will notify the Chairman and Ranking
Minority Member of the Judiciary Committees of each House of Congress,
with an explanation for each action--
(1) Upon appointing a Special Counsel;
(2) Upon removing any Special Counsel; and
(3) Upon conclusion of the Special Counsel's investigation,
including, to the extent consistent with applicable law, a description
and explanation of instances (if any) in which the Attorney General
concluded that a proposed action by a Special Counsel was so
inappropriate or unwarranted under established Departmental practices
that it should not be pursued.
(b) The notification requirement in paragraph (a)(1) of this
section may be tolled by the Attorney General upon a finding that
legitimate investigative or privacy concerns require confidentiality.
At such time as confidentiality is no longer needed, the notification
will be provided.
(c) The 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. All other releases of
information by any Department of Justice employee, including the
Special Counsel and staff, concerning matters handled by Special
Counsels shall be governed by the generally applicable Departmental
guidelines concerning public comment with respect to any criminal
investigation, and relevant law.''
Discussion
To help ensure congressional and public confidence in the integrity
of the process, the regulations impose on the Attorney General these
reporting requirements to the Judiciary Committees of the Congress.
These reports will occur on three occasions: on the appointment of a
Special Counsel, on the Attorney General's decision to remove a Special
Counsel, and on the completion of the Special Counsel's work. These
reports will be brief notifications, with an outline of the actions and
the reasons for them.
Section 600.10 No Creation of Rights
``The regulations in this part are not intended to, do not, and may
not be relied upon to create any rights, substantive or procedural,
enforceable at law or equity, by any person or entity, in any matter,
civil, criminal, or administrative.''
Certifications and Determinations
Administrative Procedure Act
This rule relates to matters of agency management or personnel, and
is therefore exempt from the usual requirements of prior notice and
comment and a 30-day delay in the effective date. See 5 U.S.C.
553(a)(2). Moreover, to the extent that rulemaking procedures would
otherwise be applicable, the Department finds that this rule would be
exempted from the requirements of prior notice and comment as a rule of
agency organization, procedure, or practice. See 5 U.S.C. 553(b)(A).
Similarly, the effective date of the rule need not be delayed for 30
days after publication because the rule is not a ``substantive rule.''
See 5 U.S.C. 553(d); 5 U.S.C. 552(a)(1)(D). In any event, because the
provisions of the Independent Counsel Reauthorization Act of 1994
expire on June 30, 1999, the Attorney General has determined that it is
imperative to have these rules governing the appointment and service of
a Special Counsel in place as soon as possible. Accordingly, even if
the rule were not exempt from the usual requirements of prior notice
and comment and a 30-day delay in the effective date, there would be
``good cause'' for issuing this rule without prior notice and comment
and without a 30-day delay in the effective date. See 5 U.S.C.
553(b)(B); 5 U.S.C. 553(d)(3).
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. It is a rule relating to agency management or personnel and is
therefore excluded from the scope of a covered ``rule'' for purposes of
Chapter 8 of Title 5, U.S.C. See 5 U.S.C. 804(3)(B). Moreover, to the
extent that this rule would be considered to be a rule of agency
organization, procedure, or practice, it is excluded from the scope of
a covered ``rule'' pursuant to 5 U.S.C. 804(3)(C). The provisions of
Part 600 relate to the Attorney General's appointment of a Special
Counsel as an employee of the Department of Justice, the procedures for
defining the jurisdiction of the Special Counsel, and the requirements
for consultation or approval within the Department. If the Attorney
General determines, in some particular case, to appoint a Special
Counsel, the Special Counsel would assume responsibility for an
investigation or prosecution that would otherwise be under the
responsibility of a litigating Division of the Department or a United
States Attorney's Office, but the Special Counsel would nevertheless be
serving under the Attorney General's authority as provided in this
rule. For these reasons, the Department has determined that this rule
does not substantially affect the rights or obligations of non-agency
parties.
Accordingly, because this action is not a covered ``rule,'' it is
exempt from the requirement for the Department to submit a report to
each House of Congress and to the Comptroller General before this rule
can take effect, as provided in 5 U.S.C. 801(a)(1).
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving
it, certifies that this regulation will not have a significant economic
impact on a substantial number of small entities.
[[Page 37042]]
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, Regulatory Planning and Review. The Department
of Justice has determined that this is not a ``significant regulatory
action'' under section 3(f) of Executive Order 12866, and that it
relates to a matter of agency organization, management, or personnel.
See Executive Order 12866, 3(d)(3). Accordingly, this rule has not been
reviewed by the Office of Management and Budget.
Executive Order 12612
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This regulation will not result in the expenditure by State, local,
and tribal government, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
List of Subjects
28 CFR Part 0
Authority delegations (Government agencies), Government employees,
Organization and functions (Government agencies), Whistleblowing.
28 CFR Part 600
Authority delegations (Government agencies), Conflict of interests,
Crime, Government employees, Investigations.
Accordingly, by virtue of the authority vested in me as Attorney
General, including 5 U.S.C. 301 and 28 U.S.C. 509 and 510, chapters I
and VI of title 28 of the Code of Federal Regulations, are amended as
follows:
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
1. The authority citation for part 0 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
Sec. 0.14 [Removed]
2. Section 0.14 is removed.
3. Part 600 is revised to read as follows:
PART 600--GENERAL POWERS OF SPECIAL COUNSEL
Sec.
600.1 Grounds for appointing a Special Counsel.
600.2 Alternatives available to the Attorney General.
600.3 Qualifications of the Special Counsel.
600.4 Jurisdiction.
600.5 Staff.
600.6 Powers and authority.
600.7 Conduct and accountability.
600.8 Notification and reports by the Special Counsel.
600.9 Notification and reports by the Attorney General.
600.10 No creation of rights.
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
Sec. 600.1 Grounds for appointing a Special Counsel.
The Attorney General, or in cases in which the Attorney General is
recused, the Acting Attorney General, will appoint a Special Counsel
when he or she determines that criminal investigation of a person or
matter is warranted and--
(a) That investigation or prosecution of that person or matter by a
United States Attorney's Office or litigating Division of the
Department of Justice would present a conflict of interest for the
Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public
interest to appoint an outside Special Counsel to assume responsibility
for the matter.
Sec. 600.2 Alternatives available to the Attorney General.
When matters are brought to the attention of the Attorney General
that might warrant consideration of appointment of a Special Counsel,
the Attorney General may:
(a) Appoint a Special Counsel;
(b) Direct that an initial investigation, consisting of such
factual inquiry or legal research as the Attorney General deems
appropriate, be conducted in order to better inform the decision; or
(c) Conclude that under the circumstances of the matter, the public
interest would not be served by removing the investigation from the
normal processes of the Department, and that the appropriate component
of the Department should handle the matter. If the Attorney General
reaches this conclusion, he or she may direct that appropriate steps be
taken to mitigate any conflicts of interest, such as recusal of
particular officials.
Sec. 600.3 Qualifications of the Special Counsel.
(a) 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.
The Special Counsel shall be selected from outside the United States
Government. Special Counsels shall agree that their responsibilities as
Special Counsel shall take first precedence in their professional
lives, and that it may be necessary to devote their full time to the
investigation, depending on its complexity and the stage of the
investigation.
(b) The Attorney General shall consult with the Assistant Attorney
General for Administration to ensure an appropriate method of
appointment, and to ensure that a Special Counsel undergoes an
appropriate background investigation and a detailed review of ethics
and conflicts of interest issues. A Special Counsel shall be appointed
as a ``confidential employee'' as defined in 5 U.S.C. 7511(b)(2)(C).
Sec. 600.4 Jurisdiction.
(a) Original jurisdiction. The jurisdiction of a Special Counsel
shall be established by the Attorney General. The Special Counsel will
be provided with a specific factual statement of the matter to be
investigated. The jurisdiction of a Special Counsel shall also include
the authority to investigate and prosecute federal crimes committed in
the course of, and with intent to interfere with, the Special Counsel's
investigation, such as perjury, obstruction of justice, destruction of
evidence, and intimidation of witnesses; and to conduct appeals arising
out of the matter being investigated and/or prosecuted.
(b) Additional jurisdiction. If in the course of his or her
investigation the Special Counsel concludes that additional
jurisdiction beyond that specified in his or her original jurisdiction
is necessary in order to fully investigate and resolve the matters
[[Page 37043]]
assigned, or to investigate new matters that come to light in the
course of his or her investigation, he or she shall consult with the
Attorney General, who will determine whether to include the additional
matters within the Special Counsel's jurisdiction or assign them
elsewhere.
(c) Civil and administrative jurisdiction. If in the course of his
or her investigation the Special Counsel determines that administrative
remedies, civil sanctions or other governmental action outside the
criminal justice system might be appropriate, he or she shall consult
with the Attorney General with respect to the appropriate component to
take any necessary action. A Special Counsel shall not have civil or
administrative authority unless specifically granted such jurisdiction
by the Attorney General.
Sec. 600.5 Staff.
A Special Counsel may request the assignment of appropriate
Department employees to assist the Special Counsel. The Department
shall gather and provide the Special Counsel with the names and resumes
of appropriate personnel available for detail. The Special Counsel may
also request the detail of specific employees, and the office for which
the designated employee works shall make reasonable efforts to
accommodate the request. The Special Counsel shall assign the duties
and supervise the work of such employees while they are assigned to the
Special Counsel. If necessary, the Special Counsel may request that
additional personnel be hired or assigned from outside the Department.
All personnel in the Department shall cooperate to the fullest extent
possible with the Special Counsel.
Sec. 600.6 Powers and authority.
Subject to the limitations in the following paragraphs, the Special
Counsel shall exercise, within the scope of his or her jurisdiction,
the full power and independent authority to exercise all investigative
and prosecutorial functions of any United States Attorney. 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.
Sec. 600.7 Conduct and accountability.
(a) A Special Counsel shall comply with the rules, regulations,
procedures, practices and policies of the Department of Justice. He or
she shall consult with appropriate offices within the Department for
guidance with respect to established practices, policies and procedures
of the Department, including ethics and security regulations and
procedures. 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.
(b) The Special Counsel shall not be subject to the day-to-day
supervision of any official of the Department. However, the Attorney
General may request that the Special Counsel provide an explanation for
any investigative or prosecutorial step, and may after review conclude
that the action is so inappropriate or unwarranted under established
Departmental practices that it should not be pursued. In conducting
that review, the Attorney General will give great weight to the views
of the Special Counsel. If the Attorney General concludes that a
proposed action by a Special Counsel should not be pursued, the
Attorney General shall notify Congress as specified in
Sec. 600.9(a)(3).
(c) The 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 such matters shall be handled
through the appropriate office of the Department upon the approval of
the Attorney General.
(d) The Special Counsel may be disciplined or removed from office
only by the personal action of the Attorney General. The Attorney
General may remove a Special Counsel for misconduct, dereliction of
duty, incapacity, conflict of interest, or for other good cause,
including violation of Departmental policies. The Attorney General
shall inform the Special Counsel in writing of the specific reason for
his or her removal.
Sec. 600.8 Notification and reports by the Special Counsel.
(a) Budget. (1) A Special Counsel shall be provided all appropriate
resources by the Department of Justice. Within the first 60 days of his
or her appointment, the Special Counsel shall develop a proposed budget
for the current fiscal year with the assistance of the Justice
Management Division for the Attorney General's review and approval.
Based on the proposal, the Attorney General shall establish a budget
for the operations of the Special Counsel. The budget shall include a
request for assignment of personnel, with a description of the
qualifications needed.
(2) Thereafter, 90 days before the beginning of each fiscal year,
the Special Counsel shall report to the Attorney General the status of
the investigation, and provide a budget request for the following year.
The Attorney General shall determine whether the investigation should
continue and, if so, establish the budget for the next year.
(b) Notification of significant events. The Special Counsel shall
notify the Attorney General of events in the course of his or her
investigation in conformity with the Departmental guidelines with
respect to Urgent Reports.
(c) Closing documentation. At the conclusion of the Special
Counsel's work, he or she shall provide the Attorney General with a
confidential report explaining the prosecution or declination decisions
reached by the Special Counsel.
Sec. 600.9 Notification and reports by the Attorney General.
(a) The Attorney General will notify the Chairman and Ranking
Minority Member of the Judiciary Committees of each House of Congress,
with an explanation for each action--
(1) Upon appointing a Special Counsel;
(2) Upon removing any Special Counsel; and
(3) Upon conclusion of the Special Counsels investigation,
including, to the extent consistent with applicable law, a description
and explanation of instances (if any) in which the Attorney General
concluded that a proposed action by a Special Counsel was so
inappropriate or unwarranted under established Departmental practices
that it should not be pursued.
(b) The notification requirement in paragraph (a)(1) of this
section may be tolled by the Attorney General upon a finding that
legitimate investigative or privacy concerns require confidentiality.
At such time as confidentiality is no longer needed, the notification
will be provided.
(c) The 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. All other releases of
information by any Department of Justice employee, including the
Special Counsel and staff, concerning matters handled by Special
Counsels shall be governed by the generally applicable Departmental
guidelines concerning public comment with respect to any criminal
investigation, and relevant law.
[[Page 37044]]
Sec. 600.10 No creation of rights.
The regulations in this part are not intended to, do not, and may
not be relied upon to create any rights, substantive or procedural,
enforceable at law or equity, by any person or entity, in any matter,
civil, criminal, or administrative.
Dated: June 30, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-17327 Filed 7-8-99; 8:45 am]
BILLING CODE 4410-AR-P
