Attorney General’s Special Counsel Regulations

Dick Thornburgh,
Dick Thornburgh Counsel, Kirkpatrick & Lockhart
Mark H. Tuohey III, and
Mark H. Tuohey III Partner, Vinson & Elkins
Michael Davidson
Michael Davidson Counsel, The Constitution Project;<br> former Senate Legal Counsel

September 15, 1999

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.

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.

1. Appointment of Special Counsel

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 testimony 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.

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.”

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.”

2. Jurisdiction and Budget

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.”

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.”

3. The Extent of Independence of Special Counsel

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.”

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.

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 prosecution. 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.”

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 subpoenas 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.

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.

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.”

4. Removal of Special Counsel and Termination of Investigations

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.”

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.”

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.

5. Reports

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.

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.”

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.”

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.”

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.