COMMITTEE ON GOVERNMENTAL AFFAIRS WILLIAM V. ROTH, JR., Delaware, Chairman CHARLES H. PERCY, Illinois TED STEVENS, Alaska CHARLES MCC. MATHIAS, JR., Maryland JOHN C. DANFORTH, Missouri WILLIAM S. COHEN, Maine DAVID DURENBERGER, Minnesota MACK MATTINGLY, Georgia WARREN B. RUDMAN, New Hampshire THOMAS F. EAGLETON, Missouri JOHN GLENN, Ohio JIM SASSER, Tennessee CARL LEVIN, Michigan JOAN M. MCENTEE, Staff Director IRA S. SHAPIRO, Minority Staff Director and Chief Counsel SUBCOMMITTEE ON OVERSIGHT OF GOVERNMENT MANAGEMENT TED STEVENS, Alaska WARREN B. RUDMAN, New Hampshire DAVID PRYOR, Arkansas CARL LEVIN, Michigan SUSAN M. COLLINS, Staff Director MARY BERRY GERWIN, Counsel FRANCES DE VERGIE, Chief Clerk (II) JULY 14 (legislative day, JULY 12), 1982.-Ordered to be printed Mr. COHEN, from the Committee on Governmental Affairs, REPORT together with SUPPLEMENTAL VIEWS [To accompany S. 2059] The Committee on Governmental Affairs, to which was referred the bill (S. 2059) to change the coverage of officials and the standards for the appointment of a special prosecutor in the special prosecutor provisions of the Ethics in Government Act of 1978, and for other purposes, having considered the same, reports favorably there on with amendments and recommends that the bill as amended do pass. The I. PURPOSE purposes of S. 2059, the Ethics in Government Act Amendments of 1982, are to insure public confidence in the impartial investigation of allegations of criminal conduct by high-ranking Executive officials and members of the President's family and to remove inequities from the present law. The bill also would extend for five years the special prosecutor provisions of the Ethics Act, which otherwise would expire in October 1983. II. BACKGROUND AND NEED FOR LEGISLATION A. BRIEF HISTORY OF THE SPECIAL PROSECUTOR LAW In the wake of Watergate, following revelations of abuses and illegal activity by Nixon Administration officials, Congress considered several proposals for establishing a statutory process by which a special prosecutor outside the Department of Justice could be appointed to investigate and, if necessary, prosecute violations of criminal law by highranking Executive Branch officials. (1) Many proposals were introduced in the 93rd to 95th Congress, but despite variations in form, they shared the common theme of the need for a statutorily authorized independent prosecutor, free from the "divided loyalties" inherent in being subject to the control of the Executive Branch, to conduct these investigations and prosecutions. To establish such a system of controls, Congress passed Title VI of the Ethics in Government Act of 1978 which provides for a courtappointed special prosecutor on an ad hoc, temporary basis to investigate allegations of criminal activity by designated Executive Branch and campaign officials. B. STRUCTURE OF THE CURRENT LAW Title VI of the Ethics in Government Act prescribes the requirements for the appointment, authority, conduct, and removal of a special prosecutor. Under the Act, the Attorney General must conduct a preliminary investigation whenever he receives "specific information" that any federal executive officer or campaign official designated under the Act has violated any federal criminal law other than a petty offense. According to the Act's legislative history, "specific information" includes all allegations of wrongdoing except generalized allegations with no factual support. Upon completion of the preliminary investigation, which may not exceed 90 days, and which must not reach the dimensions of a fullblown investigation, the Attorney General must report to the Special Prosecutor Division of the United States Court of Appeals for the District of Columbia, established by Title VI. After the investigation. there are three courses of action which may ensue. (1) If the Attorney General finds that the matter under consideration is, at the completion of the investigation, "so unsubstantiated that no further investigation or prosecution is warranted," he must so notify the court by memorandum, in which case the court has no power to appoint a special prosecutor. (2) If the Attorney General finds that any further investigation or prosecution is warranted, he must apply to the court for the appointment of a special prosecutor, in which case Title VI requires the court. to appoint, and define the jurisdiction of, a special prosecutor. (3) If the Attorney General makes no determination at the close of the 90-day period from the receipt of the allegation, he must apply for a special prosecutor, in which case the court must appoint a special prosecutor. Once appointed, the special prosecutor has "full power and independent authority" to investigate matters within his jurisdiction. These powers include, but are not limited to, conducting grand jury investigations, granting immunity to witnesses, inspecting tax returns. and contesting claims of privilege or national security in cases of attempts to withhold evidence. In addition, the Department of Justice must provide assistance to the special prosecutor, for example, providing resources or access to files, upon request by the special prosecutor, The Act provides for removal of the special prosecutor in only limited situations: the Attorney General may remove the special prosecutor only on the grounds of extraordinary impropriety, or physical or men |