Release Date: July
23, 1999
THOMPSON PLAN TO GIVE ATTORNEY
GENERAL AUTHORITY TO APPOINT SPECIAL COUNSEL INTRODUCED BY
MAJORITY LEADER
WASHINGTON -- Senate Governmental
Affairs Committee Chairman Fred Thompson (R-TN) today announced
that his legislation to give the attorney general the discretion
to appoint a special counsel was granted expedited consideration
by the Senate. Under a procedure employed by Senate Majority
Leader Trent Lott (R-MS) last evening, the legislation, S. 1427,
has been placed directly on the Senate calendar without
requiring it to go through committee.
“Repeated attempts to refine
the Independent Counsel Act have failed,” Senator Thompson
said. “The responsibility and the accountability for
appointing special counsels to investigate wrongdoing at the
highest levels of government belong with the attorney general.
This legislation will do just that and help to restore public
confidence in the process.”
The Thompson bill would impose
more accountability on the attorney general, the Senator noted.
“The current attorney general has demonstrated that under the
recently expired Independent Counsel statute, it is possible to
rely on legal technicalities to escape the statute’s intent.
My bill would place a greater burden on the attorney general to
act responsibly or be held politically accountable and subject
to congressional oversight,” Senator Thompson said.
Under Thompson’s proposal, the
special counsel would answer to the attorney general, who would
determine the jurisdiction for the special counsel’s
investigation. A person subject to the special counsel’s
investigation would be unable to challenge that jurisdiction in
court.
Thompson said the operation of
the special counsel, including the standard for his or her
removal, regular reporting requirements to the attorney general,
and other administrative matters, would be established through
regulations that the attorney general would promulgate within 60
days of the bill’s passage. The regulations would not take
effect unless Congress enacted a law to approve them within 60
days after submission. If Congress did not approve them, the
attorney general would be required to submit new ones to the
Congress. The regulations adopted could not be changed without
Congress passing a new law confirming them.
Thompson noted that while the
attorney general has already promulgated regulations regarding
the appointment of special counsels, they fall short in two
general areas. First, the regulations permit appointment of a
special counsel only when a two-part test has been satisfied --
the investigation “must present a conflict of interest for the
Department or other extraordinary circumstances,” and such an
appointment “must be in the public interest.” Thompson said
that under this test, the regulations could become a barrier to
the appointment of a special counsel.
Secondly, under the promulgated
regulations the special counsel is afforded less independence
than prior special counsel have been afforded. For instance, the
special counsel is to answer to the attorney general for any
investigative or prosecutorial step, and the attorney general
may direct that such a step not be pursued. Indictments sought
by the special counsel could be stopped, as could enforcement of
subpoenas. And appeals of adverse decisions would, for the first
time, require the approval of the solicitor general, a political
appointee in the department.
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SUMMARY OF SENATOR
THOMPSON’S
“SPECIAL COUNSEL ACT OF 1999"
- - Under the legislation, S.
1427, the attorney general would be granted complete
discretion to appoint a special counsel when she determines
that such appointment is in “the public interest.”
- - The only restriction on such
an appointment provided in the amendment is that such
special counsel cannot be an employee of the federal
government at the time of their selection. The individual
would be appointed by the attorney general. (This represents
a departure from the Independent Counsel Act, where a three
judge panel selected the person to serve as an independent
counsel.)
- - The legislation is silent
with regard to reasonable grounds for an investigation, time
frame to make a decision regarding appointment, and default
requirements if no decision is made.
- - There is no list of covered
persons; the attorney general may select a special counsel
to investigate anyone, so long as she deems it to be in the
public interest.
- - The bill requires the
attorney general, within 60 days of passage of the
legislation, to promulgate regulations relating to the
operation and removal of a special counsel. Such regulations
would not take effect unless approved by Congress within 60
days after submission, followed by presidential signature.
The bill includes provisions for expedited Congressional
consideration of the proposed regulations, including a
provision that such regulations would not be subject to
amendment. If disapproved by either House, the attorney
general would be required to submit new regulations for
approval.
- - The attorney general,
however, would have authority to promulgate regulations
without the need for Congressional approval regarding the
appointment of a particular independent counsel and the
investigative or prosecutorial jurisdiction of a special
counsel.
- - The legislation repeals any
regulations governing special counsel investigations that
were issued by the attorney general following the expiration
of the Independent Counsel Act. Upon enactment of the
legislation, the attorney general would be precluded from
issuing new regulations governing special counsel except
pursuant to the Special Counsel Act.
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