§594 Authority and Duties of an Independent Counsel

Summary

An independent counsel has full, separate power to do the investigative and prosecutorial work for the matters in that counsel’s jurisdiction. That power is the same as what the Department of Justice, the Attorney General, or DOJ employees can do, except for actions that must be done personally by the Attorney General under 18 U.S.C. 2516. The independent counsel can run grand jury work and other investigations, handle civil and criminal court cases and appeals, look at all evidence, decide about privileges and national security claims, get security clearances, seek witness immunity and warrants (including the authority in sections 6003, 6004, and 6005 of title 18), inspect tax returns under section 6103 of the Internal Revenue Code of 1986, start prosecutions and file indictments, and consult with the U.S. attorney where a crime was alleged. The independent counsel is paid at a per diem rate equal to the annual basic pay for level IV of the Executive Schedule under section 5315 of title 5. Travel, per diem, and subsistence are paid under subchapter I of chapter 57 of title 5 and section 5703, but after 1 year of service no commuting travel and subsistence will be paid unless the independent counsel and the division of the court certify extensions in 6-month steps. That certification must weigh (i) the cost to the Government, (ii) how long the work will likely continue, (iii) personal and financial burdens of relocating, and (iv) the burdens of appointing a replacement. The independent counsel may hire and set pay for staff, who are exempt from the competitive service and paid no more than comparable Office of United States Attorney for the District of Columbia positions under sections 548 and 550, and never more than the basic pay for level ES–4 of the Senior Executive Service under section 5382 of title 5 as adjusted for the District of Columbia under section 5304. The independent counsel can ask the Department of Justice for help, and DOJ must provide records, people, and resources. DOJ pays the costs to set up and run the independent counsel’s office and the Attorney General must report to Congress within 30 days after the end of each fiscal year on amounts paid, subject to section 593(b)(4). The independent counsel may ask the Attorney General or the court division to refer related matters and must notify the court division when the Attorney General refers matters. The counsel must follow DOJ enforcement policies and rules for classified materials unless that would conflict with the purposes of this chapter. The counsel may dismiss matters consistent with DOJ policies. The independent counsel must file reports with the court division every 6 months starting at appointment that explain major expenses, summarize other expenses, and estimate future costs. A final report is required before the office ends and must fully describe the work and case outcomes. The court division may release parts of reports and must protect individuals and ongoing prosecutions. When the office ends, records must go to the Archivist of the United States, with grand jury materials identified under rule 6(e) and classified records identified. Access to those records is governed by section 552 of title 5, but the Archivist may give records to DOJ for ongoing law enforcement on written request (grand jury material only by court order under rule 6(e)). While serving, the independent counsel and related firm associates may not represent persons involved in investigations, and appointed staff may not represent anyone involved. After leaving, the counsel and staff face a 3-year ban on representing anyone who was a subject of the counsel’s investigation, and a 1-year ban on representing anyone in matters involving any investigation or prosecution under this chapter. The Attorney General and the Director of the Office of Government Ethics enforce those rules. The independent counsel must run activities with care for expense, authorize only reasonable lawful spending, assign an employee to certify expenditures (who is liable under section 3528 of title 31), get administrative help from the Administrative Office of the U.S. Courts, and receive office space from the Administrator of General Services (in a Federal building unless that costs more), with temporary space provided immediately on appointment.