28 § 591

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adjudication, where former staff memPer failed to allege sufficient hardship to warrant anticipatory judicial involvement in ongoing criminal investigation which had not resulted in indictment or criminal prosecution. North v. Walsh, D.D.C.1987, 656 F.Supp. 414.

4. Purpose

Fundamental purpose of this chapter is to ensure that serious allegations of unlawful conduct by federal executive officials are subject to review by counsel independent of any incumbent administration. Dellums v. Smith, D.C.Cal. 1984, 577 F.Supp. 1449, reversed on other grounds 797 F.2d 817.

5. Persons or entities subject to investigation

The United States Department of Jus tice would not be a proper subject for investigation by an independent counsel. In re INSLAW, Inc., 1989, 885 F.2d 880, 280 U.S.App.D.C. 258.

6. Liability for investigation

Two assistant United States attorneys who were acting within scope of their duties concerning investigation of plainffs were not liable for defamation when allegations against plaintiffs were publicized by mailing of letter to United States Attorney General informing him of allegations and requesting an investigation pursuant to Ethics in Government Act. Schiavone v. Montuoro, D.C.N.Y. 1984, 587 F.Supp. 66.

7. Judicial review

Part 2

Ethics in Government Act precluded judicial review, at behest of members of the public, of Attorney General's deci sions not to investigate allegations of wrongdoing during 1980 presidential campaign by several persons who were currently high-ranking officers of feder al government and not to seek appoint. ment of independent counsel with respect to officials covered by the Act. Banzhaf v. Smith, 1984, 737 F.2d 1167, 238 U.S.App.D.C. 20.

8. Persons entitled to maintain action
Private citizens lacked standing to
challenge refusal by Attorney General to
conduct preliminary investigation re-
quired under Ethics in Government Act
to determine whether the President and
other high-level federal executive offi-
cials had violated the Neutrality Act vis-
a-vis Nicaragua. Dellums v. Smith,
C.A.9 (Cal.) 1986, 797 F.2d 817.
9. Mandamus

District court judgment, which granted in part motion for summary judgment by plaintiffs seeking mandamus to compel Attorney General, pursuant to the Ethics in Government Act, to conduct preliminary investigation into charges against the Attorney General, assistant Attorney General and Director of the Federal Bureau of Investigation arising out of incident in which a number of persons were killed or wounded by members of the Ku Klux Klan and the American Nazi Party, would be reversed. Nathan v. Smith, 1984, 737 F.2d 1069. 237 U.S.App.D.C. 364.

§ 592. Preliminary investigation and application for appointment of an independent counsel

(a) Conduct of preliminary investigation.—

(1) In general.-A preliminary investigation conducted under this chapter shall be of such matters as the Attorney General considers appropriate in order to make a determination, under subsection (b) or (c), on whether further investigation is warranted, with respect to each potential violation, or allegation of a violation, of criminal law. The Attorney General shall make such determination not later than 90 days after the preliminary investigation is commenced, except that, in the case of a preliminary investigation commenced after a congressional request under subsection (g), the Attorney General shall make such determination not later than 90 days after the request is re218

Ch. 40 INDEPENDENT COUNSEL

28 § 592

ceived. The Attorney General shall promptly notify the division of the court specified in section 593(a) of the commencement of such preliminary investigation and the date of such

commencement.

(2) Limited authority of Attorney General.-(A) In conduct. ing preliminary investigations under this chapter, the Attorney General shall have no authority to convene grand juries, plea bargain, grant immunity, or issue subpoenas.

(B)(1) The Attorney General shall not base a determination under this chapter that information with respect to a violation of criminal law by a person is not specific and from a credible source upon a determination that such person lacked the state of mind required for the violation of criminal law.

(1) The Attorney General shall not base a determination under this chapter that there are no reasonable grounds to believe that further investigation is warranted, upon a determination that such person lacked the state of mind required for the violation of criminal law involved, unless there is clear and convincing evidence that the person lacked such state of mind.

(3) Extension of time for preliminary investigation.-The Attorney General may apply to the division of the court for a single extension, for a period of not more than 60 days, of the 90-day period referred to in paragraph (1). The division of the court may, upon a showing of good cause, grant such extension. (b) Determination that further investigation not warranted.—

(1) Notification of division of the court.-If the Attorney General, upon completion of a preliminary investigation under this chapter, determines that there are no reasonable grounds to believe that further investigation is warranted, the Attorney General shall promptly so notify the division of the court, and the division of the court shall have no power to appoint an independent counsel with respect to the matters involved.

(2) Form of notification.-Such notification shall contain a summary of the information received and a summary of the results of the preliminary investigation.

(c) Determination that further investigation is warranted.

(1) Application for appointment of independent counsel.The Attorney General shall apply to the division of the court for the appointment of an independent counsel if

(A) the Attorney General, upon completion of a preliminary investigation under this chapter, determines that there are reasonable grounds to believe that further investigation is warranted; or

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(B) the 90-day period referred to in subsection (a)(1), and any extension granted under subsection (a)(3), have elapsed and the Attorney General has not filed a notification with the division of the court under subsection (b)(1). In determining under this chapter whether reasonable grounds exist to warrant further investigation, the Attorney General shall comply with the written or other established policies of the Department of Justice with respect to the conduct of criminal investigations.

(2) Receipt of additional information.-If, after submitting a notification under subsection (b)(1), the Attorney General receives additional information sufficient to constitute grounds to investigate the matters to which such notification related, the Attorney General shall—

(A) conduct such additional preliminary investigation as the Attorney General considers appropriate for a period of not more than 90 days after the date on which such additional information is received; and

(B) otherwise comply with the provisions of this section with respect to such additional preliminary investigation to the same extent as any other preliminary investigation under this section.

Contents of application.-Any application for the appointnent of an independent counsel under this chapter shall contain sufficient information to assist the division of the court in selecting in independent counsel and in defining that independent counsel's rosecutorial jurisdiction so that the independent counsel has adequate authority to fully investigate and prosecute the subject matter nd all matters related to that subject matter.

(e) Disclosure of information.-Except as otherwise provided in is chapter, no officer or employee of the Department of Justice or 1 office of independent counsel may, without leave of the division the court, disclose to any individual outside the Department of ustice or such office any notification, application, or any other locument, materials, or memorandum supplied to the division of he court under this chapter. Nothing in this chapter shall be onstrued as authorizing the withholding of information from the Congress.

(f) Limitation on judicial review.-The Attorney General's deternination under this chapter to apply to the division of the court for he appointment of an independent counsel shall not be reviewable n any court.

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(g) Congressional request.—

28 § 592

(1) By Judiciary Committee or members thereof.-The Committee on the Judiciary of either House of the Congress, or a majority of majority party members or a majority of all nonmajority party members of either such committee, may request in writing that the Attorney General apply for the appointment of an independent counsel.

(2) Report by Attorney General pursuant to request.-Not later than 30 days after the receipt of a request under paragraph (1), the Attorney General shall submit, to the committee making the request, or to the committee on which the persons making the request serve, a report on whether the Attorney General has begun or will begin a preliminary investigation under this chapter of the matters with respect to which the request is made, in accordance with subsection (a) or (c) of section 591, as the case may be. The report shall set forth the reasons for the Attorney General's decision regarding such preliminary investigation as it relates to each of the matters with respect to which the congressional request is made. If there is such a preliminary investigation, the report shall include the date on which the preliminary investigation began or will begin.

(3) Submission of information in response to congressional request.—At the same time as any notification, application, or any other document, material, or memorandum is supplied to the division of the court pursuant to this section with respect to a preliminary investigation of any matter with respect to which a request is made under paragraph (1), such notification, application, or other document, material, or memorandum shall be supplied to the committee making the request, or to the committee on which the persons making the request serve. If no application for the appointment of an independent counsel is made to the division of the court under this section pursuant to such a preliminary investigation, the Attorney General shall submit a report to that committee stating the reasons why such application was not made, addressing each matter with respect to which the congressional request was made.

(4) Disclosure of information.-Any report, notification, application, or other document, material, or memorandum supplied to a committee under this subsection shall not be revealed to any third party, except that the committee may, either on its own initiative or upon the request of the Attorney General, make public such portion or portions of such report, notification, application, document, material, or memorandum as will 221

DEPARTMENT OF JUSTICE Part 2

not in the committee's judgment prejudice the rights of any Individual.

(Added Pub. L. 95-521, Title VI, § 601(a), Oct. 26, 1978, 92 Stat. 1868, and amended Pub. L. 97-409, §§ 2(a)(1), 4(b) e), Jan. 3, 1983, 96 Stat. 2039-2041; Pub. L. 100-191, § 2, Dec. 15, 1987, 101 Stat. 1295.)

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