Appendix — Branscum v. United States
Supreme Court brief1996
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In The
Supreme Court of the United States
October Term, 1995
*
ROBERT M. HILL,
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
>
HERBY BRANSCUM, JR., et al.,
Petitioners,
V.
UNITED STATES OF AMERICA,
Respondent.
7
APPENDIX TO PETITION FOR
WRIT OF CERTIORARI
S
Jack T. LassiTER Dan GUTHRIE
Hatrietp & LAssITER 1845 Woodall Rodgers
401 West Capitol Avenue Freeway
Suite 502 Suite 1000
Little Rock, AR 72201 Dallas, TX 75201
(501) 374-9010 (214) 953-1000
Attorney for Petitioner Attorney for Petitioners
Robert M. Hill Herby Branscum, Jr. and
Herby Branscum Jr., P.A.
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
APPENDIX TABLE OF CONTENTS
Opinion of United States Court of Appeals for
the Eighth Circuit, In re: Grand Jury Subpoenas
Duces Tecum, filed March 15, 1996............
Order denying Petition for Rehearing and
Suggestion for Rehearing En Banc............
Opinion of United States Court of Appeals for
the Eighth Circuit, United States v. Jim Guy
Tucker, William J]. Marks, Sr.; John II. Haley, filed
IRS ARNG eo eager an RRR eae
Orders of the Honorable Stephen Reasoner
dated August 17, 1995, August 25, 1995, and
NEE Wh. BOW a oak a nye tae daunted newuneds
Order of United States Court of Appeals for
District of Columbia Circuit, In re: Madison
Guaranty Savings & Loan Association, dated
PEE Dy TOON 64 060 E560 cant sah sad easian
Letters to OIC dated September 2, 1994, and
June 21, 1995, from Department of Justice,
Office of Assistant Attorney General .........
Orders of United States Court of Appeals for
District of Columbia Circuit, In re: Madison
Guaranty Savings & Loan Association, dated
i BES cha SAMOS DS AAACN DH SA SRK REELS
Order of United States Court of Appeals for
the District of Columbia Circuit, In re: Madison
Guaranty Savings & Loan Association, dated
OE RRR er See en
Page
il
APPENDIX TABLE OF CONTENTS - Continued
Page
U.S. Constitution, Art. IL § 1, U.S. Constitu-
tion, Art. II, § 2; U.S. Constitution, Art. III, § 1
and 2; 5 U.S.C. § 706; 5 U.S.C. § 2104; 5 U.S.C.
§ 2903; 5 US.C. § 3831; 5 USL. § 3552; 5
U.S.C. § 5312; 5 USA. 3 Joes; ae woe.
§§ 591-599; 28 U.S.C. § 1826; Pub.L. 100-191;
Pub.L. 193-270 voices ccccitusse ch eee eaeass I-1
A-1
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Nos. 95-3279/95-3282
In re: Grand Jury
Subpoenas Duces Tecum.
Appeals from the United
States District Court for
the Eastern District of
Arkansas.
s * * *
Submitted: December 12, 1995
Filed: March 15, 1996
Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
BEAM, Circuit Judge.
Appellants Herby Branscum, Jr. (Branscum), Herby
Branscum, Jr., P.A.! (Branscum P.A.), Robert M. Hill
(Hill), Robert M. Hill, P.A.2 (Hill P.A.), and Perry County
Bank appeal the district court’s? orders refusing to quash
grand jury subpoenas duces tecum served upon them by
1 Herby Branscum, Jr., P.A. is the professional association
in which Herby Branscum, Jr. practices law.
2 Robert M. Hill, P.A. is the professional association in
which Robert M. Hill previously practiced accounting.
3 The Honorable Stephen M. Reasoner, United States
District Judge for the Eastern District of Arkansas.
A-2
the Office of Independent Counsel and holding them in
contempt for failing to comply with those subpoenas. We
affirm.
I. BACKGROUND
This appeal arises out of a grand jury investigation
conducted by the Office of Independent Counsel (OIC)
into what has become known as “Whitewater.” On
August 5, 1994, the Special Division of the United States
Court of Appeals for the District of Columbia appointed
Kenneth W. Starr as Independent Counsel pursuant to 28
U.S.C. § 593(b). Starr’s task was to investigate possible
violations of federal criminal law, “relating in any way to
James B. McDougal’s, President William Jefferson Clin-
ton’s or Mrs. Hillary Rodham Clinton’s relationships with
Madison Guaranty Savings and Loan Association, White-
water Development Corporation, or Capital Management
Services, Inc.” Starr was given jurisdictional authority to
investigate “other allegations” and violations “by any
person or entity developed during the Independent
Counsel’s investigation referred to above and connected
with or arising out of that investigation.”
In the course of its investigation, the OIC uncovered
information involving allegedly improper contributions
to then-Governor Clinton’s 1990 gubernatorial reelection
campaign and his 1992 presidential campaign by the
appellants and/or those agencies with which they were
affiliated. Subsequently, grand jury subpoenas requesting
A-3
papers and documents containing information regarding
these contributions were issued on June 27, 1995.4
In July 1995, the appellants moved to quash the sub-
poenas. The district court denied the motions on August
17. On August 22, the OIC asked the district court for an
order to compel the production of documents by the
appellants. Meanwhile, the appellants moved for recon-
sideration of the district court’s August 17 order and
again asked the court to quash the subpoenas. On August
24, the district court denied the renewed request to quash
the subpoenas and granted the OIC’s motion compelling
the production of documents. The appellants were
ordered to comply with the subpoenas by August 31.
As of August 31, the appellants had still not com-
plied with the subpoenas. In its September 8 order hold-
ing the appellants in contempt, the district court allowed
them until September 15 to purge themselves of their
contempt. As of that date, fines of $1,000 per day against
the individuals and $5,000 per day against the bank were
to accrue. The appellants immediately appealed the Sep-
tember 8 order alleging that the district court erred in
refusing to quash the subpoenas.
4 The Hill and Branscum subpoenas, served upon them in
both their individual and professional capacities, requested
information regarding contributions to the 1990 and 1992
campaigns made by either themselves or their relatives. The
subpoenas also requested information regarding transfers of
funds to certain persons, mostly relatives. The subpoenas
served upon the Perry County Bank requested information
regarding expenses incurred between 1990 and 1993 and
monthly account statements for the other appellants and their
relatives.
A-4
The appellants moved for, but were denied, a stay of
the imposition of contempt sanctions pending appeal.
Hill P.A., Branscum, and Perry County Bank complied
with the subpoenas prior to the accrual of fines. How-
ever, because Hill and Branscum P.A. remained in con-
tempt on September 15, they were fined $1,000 per day
for their noncompliance.
On December 5, the district court issued an order
requiring Hill and Branscum P.A. (the contemnors) to pay
into the court registry the sum of $77,000, representing
the contempt fines which had accrued through December
1, 1995.5 The contemnors paid their fines and complied
with the subpoenas on December 5. There is no indication
in the record that the contempt order against these two
contemnors has been purged. Appellants appeal the dis-
trict court’s orders dated August 17, 24 and September 8.
Il. DISCUSSION
A. Mootness
As a threshold matter, we must determine whether
the appellants’ compliance with the subpoenas at issue
renders this appeal moot. We hold that it does not.
The appellants argue that the OIC should be
estopped from arguing mootness due to prior representa-
tions by the OIC that their compliance would not moot
> Apparently, the fines which accrued between December 1
and December 5 remain unpaid.
A-5
the appeal.® Even if the appellants’ allegations are true,
however, parties cannot agree to jurisdiction if none
exists. If the case were moot, Article III would divest this
court of jurisdiction and any representations to the con-
trary by the OIC would not alter that outcome.
The “existence of a live case or controversy is a
constitutional prerequisite to the jurisdiction of the fed-
eral courts.” In re Grand Jury Subpoenas Dated December 7
and 8, 40 F.3d 1096, 1099 (10th Cir. 1994) (citation omitted)
(holding appeal of district court’s denial of motion to
quash subpoena was not moot due to compliance with
subpoena because the court retained the authority to
order improperly obtained materials returned or
destroyed), cert. denied, 115 S. Ct. 1957 (1995). Conse-
quently, federal courts have no authority to render deci-
sions upon moot questions. Church of Scientology of
California v. United States, 506 U.S. 9, 12 (1992).
If a party has a sufficient stake in the outcome so that
the court’s rendering of relief alleviates the harm com-
plained of, the question presented is not moot. However,
if during the pendency of an appeal, an event occurs
which destroys the court's ability to render the prevailing
party “ ‘any effectual relief whatever,’ ” the appeal must
be dismissed as moot. Id. (quoting Mills v. Green, 159 U.S.
7”
6 In a letter dated October 27, 1995, requesting that the
contemnors be required to pay the accrued fines into the court
registry, Independent Counsel Starr implied that such
compliance would not moot this appeal. Similarly, a November
16 letter from Assistant Independent Counsel Timothy
Mayopoulos stated that the appellants could comply with both
the subpoenas and the sanctions without mooting this appeal.
A-6
651, 653 (1895)). The OIC contends such an event has
occurred and that this appeal has become moot because
the requested documents have now been turned over to
the grand jury.” “In Church of Scientology, however, the
Supreme Court rejected a similar argument, holding that
the mere compliance with a summons . . . does not moot
an appeal.” In re Grand Jury Subpoenas Dated December 7
and 8, 40 F.3d at 1100 (citing Church of Scientology, 506 U.S.
at 13).
In Church of Scientology, the IRS issued a summons
requesting the production of two audio tapes of conversa-
tions between Church officials and their attorneys. 506
U.S. at 10. At the time the summons was issued, the tapes
were being held by the clerk of court pursuant to court
order. Although the Church immediately appealed the
issuance of the summons, the clerk produced the tapes
while the appeal was pending. Arguing for dismissal, the
IRS claimed the compliance with the summons had ren-
dered the appeal moot. The United States Supreme Court,
however, held that a court’s ability to render partial
relief, the potential return of items wrongly obtained
through the summons, prevented the controversy from
7 Admittedly, this argument reflects what has been the
general rule, i.e., that a contemnor’s compliance with a grand
jury subpoena moots his ability to appeal the correctness of that
subpoena. However, the United States Supreme Court's
decision in Church of Scientology of California v. United States
altered the general rule. 506 U.S. at 13. Moreover, even if this
court is incorrect in applying Church of Scientology to these facts,
the error is harmless because on the merits, we find that the act
of the OIC in seeking these subpoenas was within the scope of
its prosecutorial jurisdiction. See United States v. Tucker, No.
95-3268, slip op. (8th Cir. Mar. 15, 1996).
A-7
becoming moot. Therefore, although it was incapable of
providing full relief to the Church, the Court noted that it
could “effectuate a partial remedy” by ordering the
return or destruction of the tapes. Id. at 13.
As in Church of Scientology, we could effectuate a
partial remedy under these circumstances. For example,
we could find that the subpoenas were improperly issued
and that the appellants’ privacy interest in their docu-
ments “plainly would be benefitted by an order requir-
ing” the return or destruction of those documents. Reich
v. National Eng’g & Contracting Co., 13 F.3d 93, 98 (4th Cir.
1993) (compliance with order directing production of doc-
uments did not render appeal from that order moot
because persons forced to produce documents retained
privacy interest in disclosed information). See also Church
of Scientology, 506 U.S. at 13. As a result, it is not “impos-
sible” for us to grant “any effectua: zelief whatever” in
this case.8 Church of Scientology, 506 U.S. at 12. Therefore,
the case is not moot.? We now turn to the merits of this
appeal.
8 As one court stated, “We merely point out that there is a
possibility of equitable relief. It is only if there is no such
possibility that the appeal should be dismissed as moot.” O.].
Osborn v. Durant Bank & Trust Co., 24 F.3d 1199, 1210 (10th Cir.
1994). Our observation of the mere availability of this partial
relief in no way implies that we find the appellants’ arguments
on the merits compelling. In fact, we do not.
9 The appellants also argue that this case is not moot
because it meets the “capable of repetition, yet evading review”
exception to the mootness doctrine. See, e.g., Southern Pac.
Terminal Co. v. I.C.C., 219 U.S. 498, 515 (1911); In re Larson, 785
F.2d 629, 631 (8th Cir. 1986). Because we find this appeal is not
moot, we need not address this argument.
B. The Merits
The appellants argue that, for various reasons, the
OIC lacked authority to seek the issuance of the sub-
poenas in question. Appellants claim the OIC was with-
out such power because: (1) the Attorney General
improperly referred the campaign contribution matters to
the OIC as matters “related” to the OIC’s prosecutorial
jurisdiction; (2) the Attorney General failed to conduct
the necessary recusal determination prior to referring
these matters to the OIC; (3) the grant of prosecutorial
jurisdiction to the OIC violates the Appointments Clause
and Article III of the United States Constitution; (4) the
passage of Public Law 103-270 did not validly reauthorize
the appointment of Independent Counsels; (5) the oaths
given to Independent Counsel Starr and Assistant Inde-
pendent Counsel Mayopoulos were invalid; and (6) the
subpoenas violate the appellants’ right of freedom of
association under the First Amendment.
Issues one and two are precluded by another White-
water case, decided concurrently with this appeal. See
United States v. Tucker, No. 95-3268, slip op. at 5-11 (8th
Cir. Mar. 15, 1996) (holding that the Attorney General's
referral decisions under the Independent Counsel law are
nonreviewable). Following the lead of Tucker, we also find
appellants’ “relatedness” argument unavailing. The anal-
ysis to be made is, of course, fact specific and not totally
controlled by Tucker. We believe, however, that the cam-
paign contribution allegations peculiar to this case are
unquestionably related to both the OIC’s original juris-
diction and any additional referrals by the Attorney Gen-
eral. In sum, if Tucker passes the relatedness test, then this
case even more clearly passes muster in that regard.
Bie
A-9
Further discussion of issues one and two is, therefore,
unnecessary. Also, as noted in the Tucker opinion, issue
three was fully disposed of in Morrison v. Olson. Tucker,
slip op. at 6 n.3 (citing Morrison v. Olson, 487 U.S. 654
(1988)).
Issue four concerns the reenactment of the Indepen-
dent Counsel Reauthorization Act of 1987 (1987 Act). As
we observed in Tucker, the 1987 Act was reenacted in June
1994. Tucker, slip op. at 3. To accomplish this, Congress
passed Public Law 103-270. This enactment amended the
sunset provision (28 U.S.C. § 599) of the 1987 Act by
substituting the year 1994 for the year 1987, thereby
providing for the 1987 Act to run for five years from 1994
instead of from 1987. Notwithstanding appellants’ argu-
ments to the contrary, this was a valid renewal of the 1987
Act. Initially, we note that the intent of Congress controls
the meaning of its words. See Norfolk & W. Ry. Co. v.
American Train Dispatchers’ Ass‘n, 499 U.S. 117, 128 (1991);
Vermilya-Brown Co. v. Connell, 335 U.S. 377, 386 (1948).
Furthermore, generally speaking, “Congress may revive
or extend an act by any form of words which makes clear
its intention so to do.” Kersten v. United States, 161 F.2d
337, 338 (10th Cir.), cert. denied, 331 U.S. 851 (1947). In
amending the sunset provision, Congress made clear its
intention to reenact the 1987 Act.!° Consequently, we find
10 Further evidence of this intent is found in the reports of
the Senate and the House of Representatives regarding the
Independent Counsel Reauthorization Act of 1994. See, e.g., S.
Rep. No. 101, 103d Cong., Ist Sess. (1993); H.R. Rep. No. 224,
103d Cong., 1st Sess. (1993).
A-10
that the 1987 Act was validly reenacted by Congress in
June 1994.11
Appellants also argue Starr failed to take the
required oath of office. As a result of this alleged failure,
the appellants challenge Starr’s authority to prosecute,
administer the oath to his assistant Mayopoulos, and
consequently, Mayopoulos’s authority to prosecute. On
August 9, 1994, Starr took the oath of office as required
by 5 U.S.C. section 3331. In addition to the section 3331
oath, 5 U.S.C. section 3332 required Starr to file an affi-
davit stating that he had not purchased the office. Starr
did not complete this affidavit until August 29, 1995.
Because the section 3332 affidavit requirement is not a
condition precedent to Starr taking office, however, this
delay did not affect Starr’s prosecutorial authority during
the interim. Although Congress can impose conditions on
an appointee which must be satisfied before that appoin-
tee takes office, the affidavit requirement found in 5
U.S.C. section 3332 is not such a condition precedent. In
support of this conclusion, we need only refer to the
11 Appellants also argue that such reenactment violated the
separation of powers doctrine. The appellants argue that the
1987 Act’s sunset provision, which permitted the discretionary
continuance of ongoing Independent Counsel actions,
delegated a purely legislative function (determining the
duration of legislation) to an executive branch office (the OIC).
Because there is no allegation that any of the Independent
Counsels involved in this grand jury investigation were
“carryovers” from the 1987 Act, we need not address this
argument.
A-11
language of section 3332.'? That language requires that
the affidavit be filed “within 30 days after the effective
date of [the] appointment.” 5 U.S.C. § 3332 (emphasis
added). The use of the word “after” expressly negates the
claim that the filing of the affidavit is a condition prece-
dent to Starr’s execution of his duties as Independent
Counsel. Thus, Starr’s execution of section 3331's oath
permitted him to administer the oath of office to May-
opoulos. Therefore, this challenge to the OIC’s pros-
ecutorial authority fails.
Finally, the appellants argue that the subpoenas at
issue violate their First Amendment right to freedom of
association by imposing a “chilling” effect on their asso-
ciations with the additional persons listed in the sub-
poenas, including certain family members. Assuming,
arguendo, that the appellants could show an infringe-
ment of their freedom of association, that showing would
not complete the analysis. A grand jury subpoena will be
enforced despite a First Amendment challenge if the gov-
ernment can demonstrate a compelling interest in and a
sufficient nexus between the information sought and the
subject matter of its investigation. In re Faltico, 561 F.2d
109, 111 (8th Cir. 1977). We agree with the district court’s
12 Section 3332 provides:
An officer, within 30 days after the effective date of
his appointment, shall file with the oath of office
required by section 3331 of this title an affidavit that
neither he nor anyone acting in his behalf has given,
transferred, promised, or paid any consideration for
or in the expectation or hope of receiving assistance in
securing the appointment.
5 U.S.C. § 3332.
A-12
finding that the OIC met its burden in this case.'> There-
fore, the First Amendment challenge to the subpoenas
fails. See In re Grand Jury Proceeding, 842 F.2d 1229, 1236
(11th Cir. 1988); Glass v. Heyd, 457 F.2d 562, 564-65 (5th
Cir. 1972). We have considered the remainder of appel-
lants’ arguments and find them to be without merit.
Ill. CONCLUSION
Having found that appellants’ compliance with the
subpoenas here at issue did not moot their appeal, we
nonetheless find that the district court correctly refused
to quash the subpoenas. Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
‘3 Furthermore, absent “unusual circumstances,” the First
Amendment rarely offers protection from a duty to testify
before a grand jury. United States v. Weinberg, 439 F.2d 743, 748
(9th Cir. 1971); see also Branzburg v. Hayes, 408 U.S. 665, 682
(1972) (“[c]itizens generally are not constitutionally immune
from grand jury subpoenas”).
B-1
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 95-3279/95-3282EALR
In re: Grand Jury
Subpoena Duces Tecum.
Order Denying Petition
for Rehearing and
Suggestion for Rehearing
En Banc
Ss 8s ¢ & @ @
The suggestion for rehearing en banc is denied.
Judge McMillian would grant the suggestion for rehear-
ing en banc.
The petition for rehearing by the panel is also denied.
Chief Richard S. Arnold, Judge Morris Sheppard
Arnold, and Judge Murphy took no part in the consider-
ation or decision of this case.
June 3, 1996
Order Entered at the Direction of the Court:
/s/ Michael E. Gans
Clerk, U.S. Court of Appeals, Eighth Circuit
C-1
APPENDIX C
64 USLW 2627
UNITED STATES of America, Appellant,
v.
Jim Guy TUCKER; William J. Marks, Sr.; John H.
Haley, Appellees.
United States Department of Justice; Sun Dia-
mond Growers of California, Amicus Curiae.
No. 95-3268.
United States Court of Appeals,
Eighth Circuit.
Submitted Dec. 12, 1995.
Decided March 15, 1996.
Rehearing and Rehearing En Banc
Denied May 6, 1996, 1996 WL 225986.
Order Granting Stay May 17, 1996.
Appeal from the United States District Court for the
Eastern District of Arkansas; Henry Woods, Judge.
Kenneth W. Starr, Little Rock, AR, argued, for appel-
lant.
George B. Collins, Chicago, IL, argued (William H.
Sutton and James J. Lessmeister, Little Rock, AR, on the
brief), for appellee Jim Guy Tucker.
Robert E. Davis, Dallas, TX, argued (D. Randall John-
son, on the brief), for appellee William Marks.
Ted Boswell, Bryant, AR, argued (Curtis L. Bowman,
Little Rock, AR, on the brief), for appellee John Haley.
C-2
Before BOWMAN, BEAM, and LOKEN, Circuit
Judges.
* Ce el eee were wel ee ee
BOWMAN, Circuit Judge.
The United States, represented by Independent
| Counsel Kenneth W. Starr, appeals from an order of the
District Court dismissing an indictment brought against
Jim Guy Tucker, William J. Marks, Sr., and John H. Haley.
The court ruled that the Office of Independent Counsel
(OIC) has no jurisdiction to prosecute the case. We
reverse.
On August 5, 1994, the Division for the Purpose of
Appointing Independent Counsels (commonly known
and herein referred to as the Special Division), pursuant
to a request from United States Attorney General Janet
Reno, appointed Starr as Independent Counsel
to investigate to the maximum extent authorized
by the Independent Counsel Reauthorization
Act of 1994 whether any individuals or entities
have committed a violation of any federal crimi-
nal law, other than a Class B or C misdemeanor
or infraction, relating in any way to James B.
McDougal’s, President William Jefferson Clin-
ton’s, or Mrs. Hillary Rodham Clinton’s rela-
tionships with Madison Guaranty Savings &
Loan Association, Whitewater Development
Corporation, or Capital Management Services,
Inc.
In re Madison Guar. Sav. & Loan Ass‘n, Div. No. 94-1,
Order at 1-2 (D.C.Cir.Sp.Div. Aug. 5, 1994) (emphasis
C-3
added).! The order further conferred upon Starr “jurisdic-
tion and authority to investigate other allegations or evi-
dence of violation of any federal criminal law . . . by any
person or entity developed during the Independent
Counsel’s investigation referred to above and connected
with or arising out of that investigation.” Id. at 2
(emphasis added). The OIC also was empowered to
investigate any obstruction of justice “in connection with
any investigation of the matters described above.” Id.
Finally, the Special Division vested in the Independent
Counsel “jurisdiction and authority to seek indictments
and to prosecute any persons or entities involved in any
of the matters described above, who are reasonably
believed to have committed a violation of any federal
criminal law arising out of such matters.” Id. In sum, the
court ordered that the Independent Counsel “shall have
prosecutorial jurisdiction to fully investigate and pros-
ecute the subject matter with respect to which the Attor-
ney General requested the appointment of independent
counsel, as hereinbefore set forth, and all matters and
individuals whose acts may be related to that subject
matter,” including crimes “that may arise out of the
above described matter.” Id. at 3 (emphasis added).
Starr succeeded Robert B. Fiske, Jr.. who had been
appointed by the Attorney General in January 1994 pur-
suant to 28 C.F.R. Sec. 600.1 (1993) (after the 1987 statutes
reauthorizing appointment of independent counsel had
expired, and before the OIC was reauthorized again in
1 Under 28 U.S.C. Sec. 49 (1994), the Chief Justice appoints
three judicial officers to serve two-year terms for this division of
the United States Court of Appeals for the District of Columbia.
C-4
June 1994), both in the position and in his scope of
authority as Independent Counsel. Fiske had been
appointed, in turn, to replace a team of lawyers from the
fraud section of the criminal division of the Justice
Department, which had taken over the Madison Guaranty
Savings & Loan Association investigation in November
1993 when Paula Casey, United States Attorney for the
Eastern District of Arkansas, recused herself and her staff
from the investigation and prosecution of matters con-
cerning Madison Guaranty and Capital Management Ser-
vices (CMS).
By letter dated September 2, 1994, the Acting Assis-
tant Attorney General, Criminal Division, responding to
Starr’s August 31 request, referred to the OIC “investiga-
tive and prosecutorial jurisdiction over . . . [w]hether any
person committed any federal crime relating to the bank-
ruptcy action entitled In Re: Landowners Management Sys-
tem, Inc., Tax Identification No 75-2001914, Debtor, United
States Bankruptcy Court, Northern District of Texas, Case
No. 787-70392 (Chapter 11).” The letter noted that the
Attorney General had agreed that this matter, and
another that was redacted from the record that is before
us in this case, are related to the OIC’s investigation.
Letter from John C. Keeney, Acting Assistant Attorney
General, Criminal Division, to Kenneth W. Starr (Sept. 2,
1994). The Independent Counsel sought referral, and the
Attorney General granted it, pursuant to 28 U.S.C. Sec.
594(e) (1994), which provides, as relevant here: “An inde-
pendent counsel may ask the Attorney General or the
division of the court to refer to the independent counsel
matters related to the independent counsel’s pros-
ecutorial jurisdiction, and the Attorney General or the
|
C-5
division of the court, as the case may be, may refer such
matters.” Out of what the Independent Counsel referred
to during oral argument of this appeal as “an abundance
of caution,” the Independent Counsel in December 1994
also sought referral jurisdiction over the investigation
and prosecution of federal criminal matters relating to the
Landowners Management System (LMS) bankruptcy
(among other matters) from the Special Division. On
December 19, the Special Division issued an Order of
Referral, a paragraph of which precisely tracks the Attor-
ney General’s September 2, 1994, referral to the OIC of all
investigative and prosecutorial jurisdiction over federal
criminal matters relating to the LMS bankruptcy.
The OIC’s criminal investigation of matters relating
to the LMS bankruptcy culminated on June 7, 1995, when
a grand jury for the Eastern District of Arkansas issued
the indictment that is the subject of this appeal. Governor
of Arkansas Jim Guy Tucker, his Little Rock lawyer John
H. Haley, and his San Francisco business partner William
J. Marks, Sr., were variously charged with tax fraud;
bankruptcy fraud; making false material statements for
the purpose of influencing CMS, a federally licensed
management company in Arkansas; and conspiracy to
commit various of these acts. The specifics of the indict-
ment are discussed in further detail as necessary to the
discussion in Part II of this opinion.
The case was assigned to Judge Henry Woods,? who
on September 5, 1995, held a hearing on the defendants’
2 United States District Judge for the Eastern District of
Arkansas.
C-6
motions to dismiss. Within a few hours, the court issued a
twenty-one-page order and opinion dismissing the indict-
ment on the ground that the OIC lacked prosecutorial
jurisdiction over this case.
I.
The Independent Counsel's first issue on appeal was
addressed by the District Court somewhat summarily and
with little legal analysis: whether the courts have the
authority to review the Attorney General’s decision
under 28 U.S.C. Sec. 594(e) to refer jurisdiction to the
OIC. We review this question of law de novo and hold that
the Attorney General’s exercise of her discretion to refer
matters to the OIC for investigation and prosecution is
not reviewable.
An independent counsel, of course, is not an ordi-
nary United States attorney. The counsel is appointed by
the judiciary (the Special Division) at the behest of the
Attorney General. 28 U.S.C. Secs. 593(b)(1), 592(c)(1)
(1994). The scope of counsel’s prosecutorial jurisdiction is
delineated by the ‘Special Division. Id. Sec. 593(b)(1).
Counsel may be removed only by impeachment and con-
viction, or “by the personal action of the Attorney Gen-
eral and only for good cause, physical or mental
disability . . . , or any other condition that substantially
impairs the performance of such independent counsel’s
duties.” Id. Sec. 596(a)(1) (1994). The independent counsel
law specifically provides that the United States District
Court for the District of Columbia has jurisdiction to
review a removal decision of the Attorney General upon
petition by the ousted independent counsel. Id. Sec.
|
C-7
596(a)(3) (1994). The Special Division, or the independent
counsel, may terminate an OIC when an investigation
and any resulting prosecutions are substantially com-
pleted. Id. Sec. 596(b) (1994). The independent counsel is
subject to congressional oversight, id. Sec. 595 (1994), and
must make periodic reports to the Special Division, id.
Sec. 594(h) (1994).3
The unusual nature of the office notwithstanding, a
duly appointed independent counsel is a prosecutor for
the United States, and prosecutorial decisions of the
nature here in question — who should be prosecuted and
for what alleged crimes — have long been committed to
the discretion of the prosecutor.* “In our criminal justice
system, the Government retains ‘broad discretion’ as to
whom to prosecute. . . . This broad discretion rests largely
on the recognition that the decision to prosecute is partic-
ularly ill-suited to judicial review.” Wayte v. United States,
3 The Supreme Court has held that the independent counsel
law does not violate the Appointments Clause, Article III, or the
separation of powers principles of the Constitution. Morrison v.
Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988).
4 As the Supreme Court noted in Wayte v. United States, 470
U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985), a
prosecutor’s decisions are not free from scrutiny when the
challenge is to the constitutionality of those decisions, such as
selective prosecution that violates the Equal Protection Clause.
See United States v. Batchelder, 442 U.S. 114, 125 & n. 9, 99 S.Ct.
2198, 2205 & n. 9, 60 L.Ed.2d 755 (1979). But there is no
constitutional right of a criminal defendant to choose his or her
prosecutor and thus there can be no constitutional dimension to
the challenge to the prosecutor’s jurisdiction when it is
conceded, as it is here, that there is some federal prosecutor who
is empowered to bring the charges on which the appellees have
been indicted.
C-8
470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547
(1985) (quoting United States v. Goodwin, 457 U.S. 368, 380
n. 11, 102 S.Ct. 2485, 2492, 73 L.Ed.2d 74 (1982)); see also
Massey v. Smith, 555 F.2d 1355, 1356 (8th Cir.1977) (per
curiam) (“The authority to decide against whom federal
indictments shall be sought lies almost exclusively with
the United States Attorneys or the Justice Department,
and their decisions in this regard are not generally subject
to judicial review.”).
Although prosecutorial discretion is not the precise
issue here, we do not see any reason to believe that the
Attorney General’s referral decision is any more subject
to judicial review than the usual prosecutorial decisions.
But we need not rest our decision on intuition guided by
a consideration of prosecutorial discretion and its unre-
viewability in its ordinary contexts, for the definitive
answer to the question of reviewability in this case is
found in legislative history that cannot be ignored
(although the appellees and the District Court elected to
do just that).
In 1987, the second time legislation establishing the
independent counsel process was reauthorized, the con-
ferees discussed the possibility of codifying the holdings
of Dellums v. Smith, 797 F.2d 817 (9th Cir.1986), and Ban-
zhaf v. Smith, 737 F.2d 1167 (D.C.Cir.1984) (en banc) (per
curiam) (the legislative history incorrectly referred to the
case as Banzhai v. Smith), wherein two circuit courts of
appeals “properly reflect[ed] legislative intent” by con-
cluding “that no judicial review is available of decisions
by the Attorney General not to conduct preliminary
investigations.” H.R.Conf.Rep. No. 452, 100th Cong., 1st
C-9
Sess. 22 (1987), reprinted in 1987 U.S.C.C.A.N. 2185, 2188.5
The joint statement explained, however, that such a pro-
vision was not included in the jointly proposed legisla-
tion “because the conferees did not wish to suggest, by
indicating a lack of judicial review of Attorney General
decisions on preliminary investigations, that judicial
review might be available of other Attorney General deci-
sions under this chapter.” Id. Thus one might quite log-
ically conclude that, where Congress did intend there to
be judicial review of Attorney General decisions, it speci-
fically ordained judicial review, as it did when providing
for judicial review of an Attorney General's decision to
remove an independent counsel. To be certain that its
point — that unreviewability of the Attorney General's
decisions is the rule when the independent counsel law
does not expressly provide otherwise - was not missed,
the Committee stated, in no uncertain terms that “[t]he
conferees agree that an Attorney General’s determina-
tions under the independent counsel law are not subject
to judicial review.” Id. (emphasis added). The District
5 The court in Banzhaf v. Smith, 737 F.2d 1167, 1168
(D.C.Cir.1984) (en banc) (per curiam), held “that Congress
specifically intended in the Ethics in Government Act to
preclude judicial review, at the behest of members of the public,
of the Attorney General's decisions not to investigate or seek
appointment of an independent counsel with respect to officials
covered by the Act.” The court in Dellums v. Smith, 797 F.2d 817,
823 (9th Cir.1986), reached the same conclusion, noting its view,
based on its reading of 28 U.S.C. Sec. 595 (1994) - the provision
concerning congressional oversight of the OIC - that Congress
intended “that enforcement by members of congressional
judiciary committees would be effective in preventing the
Attorney General from refusing to obey the law.”
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C-10
Court and all the appellees studiously ignore this compel-
ling language from the legislative history, despite the fact
that it was brought to their attention, evidently finding it
impossible to challenge.© We too think it is irrefutable,
and conclude that this legislative history, which confirms
the conclusion one logically would reach by reading the
statute, settles the question. For us to hold otherwise
would subvert congressional purpose in creating and
empowering the independent counsel and in structuring
the office as it did.
United States v. Juvenile Male, 923 F.2d 614 (8th
Cir.1991), to which the appellees direct our attention for
the proposition that the Attorney General’s referral is
reviewable, is inapposite. In Juvenile Male, the issue was
the reviewability of the Attorney General's decision to
6 In an apparent effort to avoid the illuminating legislative
history concerning review of the Attorney General's decisions
under the independent counsel law, the appellees urge that they
are actually seeking (or, in addition, they are seeking) review of
the Independent Counsel's decision to ask the Attorney General
to refer, and his decision to accept referral of, the matters in
question. This argument is specious. Any possible issue relating
to counsel's decision to seek or to accept referral in this case is
mooted by the decision of the Attorney General to refer the
matters in question to the jurisdiction of the Independent
Counsel. The contentions that it is the referral from the Special
Division that is challenged here and that the courts may review
that referral strike us as being even more specious, but in fact
we need not and do not consider them. Referral by the Special
Division, as noted above, was redundant and unnecessary.
Given that the Attorney General has authority to make the
referral independently, and did so here, the additional, identical
referral by the Special Division, though it may be a source of
additional comfort to the OIC, is a moct point in this appeal.
C-11
certify, under the Juvenile Justice and Delinquency Pre-
vention Act, that the crime with which a juvenile was
charged was a “crime of violence.” The Court held that
the certification in question was reviewable. Cf. United
States v. C.G., 736 F.2d 1474 (11th Cir.1984) (holding certi-
fication under the Act that appropriate state court did not
have jurisdiction was not reviewable); United States v.
Vancier, 515 F.2d 1378 (2d Cir.) (same), cert. denied, 423
U.S. 857, 96 S.Ct. 107, 46 L.Ed.2d 82 (1975). We stated,
“While this court may not have the power to guide a
federal prosecutor’s discretion, we must insure that the
exercise of that discretion is within the confines” of the
statute. Juvenile Male, 923 F.2d at 617-18. The argument
that the Juvenile Male holding is applicable here ignores
the definitive legislative history of the law reauthorizing
the OIC that clearly evidences Congress’s intent that
(unless otherwise provided in the statute) the Attorney
General’s decisions under the independent counsel law
are nonjusticiable. Further, the question whether a juve-
nile has been charged with a “crime of violence” is easily
reviewed by a court and is well within the expertise of
the judiciary. The “relatedness” determination at issue
here, on the other hand, is an exercise of a discretion that
only the prosecutor and the Attorney General command,
because of their intimate knowledge of the course of the
investigation, including witness statements, and of other
proceedings that may be ongoing before the grand jury.
That is, the “relatedness” question is largely without the
standards that the judiciary typically requires for review,
another reason for entrusting it, as Congress has, to the
broad (and unreviewable) discretion of the Attorney Gen-
eral.
C-12
Reliance on Gutierrez de Martinez v. Lamagno, ___ U.S.
__, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), in support of
the appellees’ position also is misplaced. Gutierrez was a
case decided under the terms of the Westfall Act, which
authorizes the Attorney General to certify that a federal
employee sued for a wrongful or negligent act was acting
within the scope of employment at the time of the alleged
act, so that the United States is substituted for the defen-
dant. In the ordinary case, such certification would allow
a plaintiff to maintain an action under the Federal Tort
Claims Act (FTCA), although because of an exception to
the FTCA the result in Gutierrez was just the opposite,
and the United States retained its sovereign immunity
from suit. The issue in Gutierrez was the reviewability of
that certification. The Court noted two factors that
“weigh[ed] heavily” in its analysis: that “the Attorney
General herself urge[d] review,” and that review is gener-
ally available “when a government official’s determina-
tion of a fact or circumstance . . . is dispositive of a court
controversy.” Id. at __, 115 S.Ct. at 2231.
Neither factor is present here. In this case, the
Department of Justice, as amicus curiae, agrees with the
Independent Counsel that the Attorney General's referral
is not reviewable. Further, as is apparent from the District
Court’s unchallenged acknowledgement that these defen-
dants properly may be prosecuted by the United States
Attorney for the Eastern District of Arkansas (who has
recused herself from matters concerning CMS) or by the
Attorney General (who made the referral to the OIC), the
Attorney General's referral does not “instruct[{ ] a court
automatically to enter a judgment pursuant to a decision
the court has no authority to evaluate.” Id. at __. 115
C-13
S.Ct. at 2234. The absence of judicial review of the discre-
tionary referral decision merely allows the prosecution to
proceed without the delay that judicial review inevitably
would entail; it does not direct the outcome of the pros-
ecution. Further, unlike the situation in Gutierrez, this is
not a case where the Attorney General has a vested
interest in the referral such that she “is hardly positioned
to act impartially.” Id. at __, 115 S.Ct. at 2233.
At oral argument we were directed to the admonition
of the Gutierrez Court that “judicial review of executive
action ‘will not be cut off.’ ” Id. at __, 115 S.Ct. at 2231
(quoting Abbott Lab. v. Gardner, 387 U.S. 136, 140, 87 S.Ct.
1507, 1511, 18 L.Ed.2d 681 (1967)). But considering our
reading of the independent counsel law and the uncon-
troverted legislative history we have discussed above, the
full, unabridged language of the Court does not support
the appellees’ position, and actually supports our holding
that the Attorney General’s referral decisions are non-
justiciable: “Accordingly, we have stated time and again
that judicial review of executive action ‘will not be cut off
unless there is persuasive reason to believe that such was
the purpose of Congress.’ ” Id. (emphasis added). It is
fair to say that the “reason to believe” here is more than
just “persuasive,” it is beyond reasonable dispute.
Accordingly, we hold that the Attorney General’s
referral decision under Sec. 594(e) is not reviewable and
that the District Court erred in holding otherwise.
II.
Even if the courts had jurisdiction to review the
Attorney General's “relatedness” determination under
4
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C-14
Sec. 594(e), which in Part I of this opinion we have held
the courts do not have, we nevertheless would reverse
the District Court, which reviewed the “relatedness”
issue and disagreed with the Attorney General's deter-
mination. We begin our discussion of “relatedness” with
a look at the factual basis, according to the indictment,
for the charges against Tucker, Marks, and Haley.
The grand jury’s indictment of June 7, 1995, was the
culmination of an investigation that began on Indepen-
dent Counsel Fiske’s watch. The indictment alleged that
Tucker and Marks made false material statements to CMS
for the purpose of securing a $300,000 loan. Tucker and
Marks represented to CMS that the loan was for invest-
ment in D & L Telecommunications, Inc., when in fact it
was used as part of the cash collateral pledged for a
personal loan of $8.5 million from Fleet National Bank.
Allegedly, $6 million of that loan was used to purchase
controlling interest in Planned Cable Systems Corpora-
tion (PCS), a cable television company in which Marks,
who was president of the company, already was a minor
shareholder. According to the indictment, Haley acquired
a “shelf” corporation, that is, one with no assets or opera-
tions, in Texas, called LMS. The appellees merged PCS
into LMS and Marks was named president. In November
1987, LMS filed a fraudulent bankruptcy in the Northern
District of Texas. The proposed reorganization plan,
approved by all creditors listed in the bankruptcy sched-
ules before LMS even filed its bankruptcy petition, trans-
ferred valuable cable television assets to Tucker, the only
secured creditor listed, and to a corporation controlled by
Tucker, listed as an unsecured creditor. The indictment
alleges that this scheme was undertaken to avoid paying
C-15
$4 million in taxes that would have been owed on a sale
of the cable television assets. i
Also relevant here is an indictment from the same
grand jury handed down on August 17, 1995, after the
arguments on the question of dismissal had been briefed
to the District Court. The indictment charged Tucker,
James McDougal, and Susan McDougal with fraudulent
loan schemes involving Madison Guaranty and CMS.
As we mentioned in our discussion in Part I,
“relatedness” in the context at issue here is an essentially
standardless concept and, as the statute is written, one
_ that is exceedingly broad. Section 594(e) requires only
that referred matters be “related to the independent
counsel’s prosecutorial jurisdiction.” The term “related”
is undefined and without parameters. Congress did not
indicate the degree of consanguinity between matters that
should be evident before jurisdiction may be properly
asserted by the OIC (further indication, we might add,
that it was to be a determination entrusted to the discre-
tion of the Attorney General). We also think it is relevant
to note that the original jurisdiction of this OIC, which is
not at issue here, includes authority “to investigate other
allegations or evidence of violation of any federal crimi-
nal law ... by any person or entity developed during the
Independent Counsel’s investigation referred to above
and connected with or arising out of that investigation.””
? The appellees seem to contend in parts of their argument
that the Independent Counsel is relying on “arising out of”
jurisdiction, as set forth in two places in the original grant of
jurisdiction, for his referral jurisdiction. See also 28 U.S.C. Sec.
593(b)(3) (1994) (scope of prosecutorial jurisdiction “shall also
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C-16
In re Madison Guar. Sav. & Loan Ass'n, Div. No. 94-1, Order
at 2 (emphasis added); see also 28 U.S.C. Sec. 593(b)(3)
(1994) (scope of prosecutorial jurisdiction). Arguably, the
prosecutions at issue fall within the broad grant of origi-
nal prosecutorial jurisdiction without a referral even
being necessary. See United States v. Wilson, 26 F.3d 142,
148 (D.C.Cir.1994) (“[T]he scope of a special prosecutor's
investigatory jurisdiction can be both wide in perimeter
and fuzzy at the borders.”), cert. cones. - Us... ~ tie
S.Ct. 1430, 131 L.Ed.2d 311 (1995). Even so, the OIC
sought and received a referral from the Attorney General,
which set forth with specificity the additional criminal
matters to be investigated and possibly prosecuted by the
OIC.
include the authority to investigate and prosecute Federal
crimes... that may arise out of the investigation or prosecution
of the matter”). They argue that the “arising out of” language
concerns the investigation or prosecution of a crime committed
as a direct result of the OIC’s investigation or prosecution, that
is, an obstruction of justice crime such as perjury. We need not
decide whether “arising out of” as variously used in the original
grant of jurisdiction should be so narrowly interpreted, as the
OIC has jurisdictional authority to investigate and prosecute
not only obstruction of justice crimes related to his grant of
authority but also to investigate matters “developed during the
Independent Counsel’s investigation . . . and connected with or
arising out of that investigation.” In re Madison Guar. Sav. & Loan
Ass'n, Div. No. 94-1, Order at 2 (D.C.Cir.Sp.Div. Aug. 5, 1994)
(emphasis added). Further, in order to acquire referral
jurisdiction over a matter, the OIC does not need to rely on
either the “arising out of” or the “connected with” language to
justify his request; the referred matters need only be “related.”
28 U.S.C. Sec. 594(e) (1994).
C-17
Considering the open-ended phrasing of Sec. 594(e)
and the expansive jurisdiction originally granted the OIC,
we believe that the association between the original juris-
diction and the jurisdiction sought via referral need not
be as intimate as the appellees suggest. The appellees
argue that the matters must be “demonstrably related” in
order for referral jurisdiction to be proper. That language
is excerpted from Morrison v. Olson, 487 U.S. 654, 108 S.Ct.
2597, 101 L.Ed.2d 569 (1988), wherein the Supreme Court
addressed the constitutionality of the independent coun-
sel provisions of the Ethics in Government Act. Reference
to the Court’s entire discussion, however, makes it clear
that the Court was not delimiting “relatedness” for the
purpose of referral jurisdiction. Instead, the Court was
observing that, due to the temporary nature of the OIC,
“the nature and duties of which will by necessity vary
with the factual circumstances giving rise to the need for
an appointment in the first place,” Congress properly
conferred upon the Special Division the authority “to
define the scope of the office.” Id. at 679, 108 S.Ct. at
2613. The Court went on:
This said, we do not think that Congress may
give the Division unlimited discretion to deter-
mine the independent counsel's jurisdiction. In
8 We reject the suggestion that the OIC has disavowed any
relation between the indictment in this case and the
Independent Counsel’s original jurisdiction. We agree with the
OIC that this is an obvious distortion of the Independent
Counsel’s position, which from the initial request for referral
always has been that the matter with respect to which the OIC
sought referral and the original grant of jurisdiction are indeed
related within the meaning of the statute.
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C-18
order for the Division’s definition of the coun-
sel’s jurisdiction to be truly “incidental” to its
power to appoint, the jurisdiction that the court
decides upon must be demonstrably related to
the factual circumstances that gave rise to the
Attorney General’s investigation and request for
the appointment of the independent counsel in
the particular case.
Id. It is clear that the limitation in question (assum-
ing, as do the appellees, that “demonstrably related” is a
genuine limitation) was upon the authority of the Special
Division to define jurisdiction in the first instance, and
was the result of the constitutional concerns (appoint-
ments clause and separation of powers) generated by
Congress’s decision to vest executive powers in the judi-
ciary (the Special Division). “Demonstrably related” is
not, as Marks asserts, “[t]he applicable legal standard for
evaluating whether the Independent Counsel has author-
ity to prosecute the instant case.” Brief of Appellee Marks
at 13. We do not agree that the subject matter of the
referral jurisdiction must be “demonstrably related”
either “ ‘to the factual circumstances’ that give rise to the
appointment,” Brief of Appellee Tucker at 10, or “to the
subject matter of the Independent Counsel’s jurisdiction,”
Brief of Appellee Marks at 13.9 We thus reject the appel-
lees’ contention that the subject matter of the referral
jurisdiction is required to relate to James McDougal’s or
President Clinton’s or Mrs. Clinton’s relationship to CMS
9 Haley simply argues that the independent counsel law
and Morrison “require that matters to be referred must be
‘demonstrably related,’ ” Brief of Appellee Haley at 5, although
to what they must be so related is not stated.
C-19
or Madison Guaranty or the Whitewater Development,
which is the subject matter of the Independent Counsel’s
original investigatory jurisdiction. If that were the test for
a proper referral, then referral never would be necessary
and Sec. 594(e) would be superfluous. We think it is clear
that, contrary to the appellees’ arguments, relatedness for
purposes of referral under Sec. 594(e) depends upon the
procedural and factual link between the OIC’s original
prosecutorial jurisdiction and the matter sought to be
referred.
The matters over which the OIC sought referral juris-
diction were developed during the investigation con-
ducted by the OIC under the original grants of
jurisdiction, first the jurisdiction of the regulatory Inde-
pendent Counsel (Fiske) and then the statutory Indepen-
dent Counsel (Starr). It is apparent from the record before
us, even though grand jury proceedings to which we are
not privy continue, that there is overlap in witnesses and
in defendants between the original prosecutorial jurisdic-
tion (see August 17, 1995, indictment) and the referral
jurisdiction (see June 7, 1995, indictment). Further, as the
August 17 indictment demonstrates, there is a clearly
defined relationship between Tucker (referral) and
McDougal (original), Tucker (referral) and CMS (original
and referral), and Tucker (referral) and Madison Guar-
anty (original). (CMS was an entity named in the original
grant of jurisdiction and allegedly defrauded by the
activities charged in the August 17 indictment, and mate-
rial false statements to CMS by Tucker and Marks consti-
tute a part of the charges in the June 7 indictment.) We
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C-20
have no difficulty in concluding that the required related-
ness between original and referral jurisdiction is present
here.
The appellees further argue that they are not “per-
sons” within the meaning of 28 U.S.C. Sec. 591 (1994) who
can be investigated by the OIC, and therefore they cannot
be prosecuted by the OIC for wrongdoing. The covered
“persons” described by Sec. 591(b) are high-ranking fed-
eral executive officials and national campaign committee
officers. Tucker, Marks, and Haley are outside the defini-
tion. But Sec. 591(b) refers to persons to whom Sec. 591(a)
applies, and Sec. 591(a) sets out the requirement of a
preliminary investigation by the Attorney General:
The Attorney General shall conduct a prelimi-
nary investigation in accordance with section
592 whenever the Attorney General receives
information sufficient to constitute grounds to
investigate whether any person described in
subsection (b) may have violated any Federal
criminal law... .
Thus it is the alleged culpability of a covered “per-
son” that may require the Attorney General to conduct an
initial preliminary investigation. But the ultimate scope
of jurisdiction of the OIC —- whom he may investigate and
whom he may prosecute - as determined by the Special
Division, is not necessarily limited to covered persons,
and neither is referral jurisdiction. Moreover, referral
jurisdiction requires only relatedness to the original pros-
ecutorial jurisdiction; nowhere do the OIC provisions
require that a Sec. 591 preliminary investigation into the
involvement of covered persons be conducted before a
matter may be referred to an existing OIC. Finally, the
C-21
appellees’ argument is in any event inapposite to their
case, for here the Attorney General originally sought the
appointment of independent counsel under 28 U.S.C. Sec.
591(c) because the investigation and prosecution would
present a “political conflict of interest,” not because cov-
ered persons were the targets.
The appellees also argue that the Independent Coun-
sel was, in reality, seeking expansion jurisdiction, not
referral jurisdiction, and that he did not comply with the
requirements of expansion jurisdiction, or, in the alterna-
tive, that he should have sought expansion jurisdiction
instead of referral jurisdiction. Expansion jurisdiction
may be granted to the OIC by the Special Division upon
the request of the Attorney General, if possible violations
of criminal law by Sec. 591(b) “covered pe--ons” that are
outside the prosecutorial jurisdiction of the OIC come to
the attention of the independent counsel. 28 U.S.C. Sec.
593(c) (1994). If, after a 28 U.S.C. Sec. 592 (1994) prelimi-
nary investigation, the Attorney General determines that
further investigation is warranted, the Special Division
then must either expand the existing OIC’s jurisdiction or
appoint another independent counsel. The argument that
the Independent Counsel and the Attorney General failed
to comply with the requirements of Sec. 593(c) (expansion
jurisdiction) is irrelevant to this case, because in fact the
Independent Counsel did not seek expansion jurisdiction.
He clearly sought — and received — referral jurisdiction
under Sec. 594(e), obviating any need to comply with the
requirements for expansion jurisdiction. As for the con-
tention that the Independent Counsel should have sought
expansion jurisdiction in the first place, and not referral
jurisdiction, our decision that referral was proper because
C-22
the referred matter is related to the Independent Coun-
sel’s prosecutorial jurisdiction renders this argument
moot.
Assuming for the sake of argument that the discre-
tion exercised by the Attorney General in referring
“related” matters to the OIC is reviewable, and giving the
Attorney General the deference that is due such discre-
tionary decisions, we hold that she did not abuse her
discretion in determining that the subject matter of the
referral jurisdiction in this case is “related” to the Inde-
pendent Counsel’s original prosecutorial jurisdiction
within the meaning of 28 U.S.C. Sec. 594(e). The OIC has
jurisdiction to prosecute this case.
Ill.
We come now to the Independent Counsel’s request
that this case be assigned to a judge other than Judge
Woods upon remand to the District Court. We conclude
that this request must be granted to preserve the appear-
ance of impartiality.
The Independent Counsel relies primarily on news-
paper articles to support his request.!° First, there are
articles that connect Judge Woods and Hillary Rodham
Clinton. Judge Woods appointed her as counsel for a
special committee in the Pulaski County, Arkansas,
10 In order to adequately consider the Independent
Counsel’s argument for reassignment, once having determined
that his request is properly ours to grant, see infra, we asked the
OIC to supplement the record by providing to the Court copies
of the articles upon which he relies.
C-23
school desegregation case, and was quoted as saying that
he “did work with Hillary” and that he “came to admire
her during that period.” Rex Nelson, Road to Tucker trial
full of twists for Judge Woods, Ark. Democrat-Gazette, Sept.
3, 1995, at 1A, 20A; see also Connie Bruck, Hillary the Pol,
New Yorker, May 30, 1994, at 58, 69. In the Arkansas
Democrat-Gazette article, the newspaper reported that
Judge Woods said, “If anything came up regarding Presi-
dent Clinton, I would recuse,” because of the Judge's
relationship with Hillary Clinton. Nelson, supra, at 20A.
A column in a daily periodical with national - actually
international — circulation reported that Judge Woods
wrote to then Deputy White House Counsel, the late
Vincent Foster, in July 1993 to ask whether he should
grant an interview where the topic was to be Hillary
Rodham Clinton. Micah Morrison, Arkansas Judge Runs
the Clock on Whitewater, Wall St. J., Oct. 4, 1995, at Al4.
Finally, in a column criticizing efforts “to get federal
Judge Henry Woods, a Democratic appointee, off Gov. Jim
Guy Tucker’s criminal case,” the author acknowledged,
“Indeed, the judge spent the night at the White House the
night Republicans swept a majority of Congress last
November.” Max Brantley, Political Notebook, Ark. Times,
June 30, 1995, at 16.
For their part, President and Mrs. Clinton have been
reported to have expressed continued support for Tucker
since his indictment by the grand jury. It was reported in
an article on the front page of the Arkansas Democrat-
Gazette that, the day after Tucker pleaded not guilty to
the charges in this case, the Clintons attended a fund-
raising luncheon in Little Rock, Arkansas, where Tucker
received a “sustained standing ovation.” Noel Oman &
C-24
Peter Aronson, Clinton lunch also a feast for Tucker, Ark.
Democrat-Gazette, June 24, 1995, at 1A. At the event,
solidifying his connection with the recently indicted
Tucker, the President said in a speech, “I am especially
glad to see Governor and Mrs. Tucker here today and
especially grateful for the reception you gave them.” Id.
at 12A. Tucker also acknowledged the perceived connec-
tion when he was quoted in an interview as saying of the
OIC, “I think that’s been much of their goal, to try and tar
the [P]resident with images of wrongdoing here in his
home state.” Inside Politics (Cable News Network, Inc.,
television broadcast, June 21, 1995).
The appellees object to the Independent Counsel's
request on several grounds, among them: that the issue
was not raised in the District Court and is raised now
only because the Independent Counsel did not like the
result reached in the proceeding below; that “the motion
is .. . frivolous because it is obviously premature to raise
such a motion in an appellate court,” Brief of Appellee
Marks at 38; that Judge Woods’s political affiliation, and
the Independent Counsel's affiliation with another politi-
cal party, comprise the basis for the argument; and that
the argument is “an improper vehicle for the publication
of a personal attack on Judge Woods for the purpose of
distracting this Court from a proper review of the district
court’s dismissal ruling on its merits,” id. Most of the
appellees’ claims are undeserving of comment, and we
summarily reject the suggestion that appellant's brief is
evidence that Judge Woods's political persuasion forms
the basis for the Independent Counsel’s request.
Nowhere do the appellees give us reasons for concluding
C-25
that the matters the Independent Counsel has brought to
our attention do not create an appearance of bias.
We also reject the contention that the Independent
Counsel’s request is improperly made to this Court in the
first instance rather than to Judge Woods. The appellees’
arguments stem from their confusion about the source of
our power to grant the OIC’s request. “Federal appellate
courts’ ability to assign a case to a different judge on
remand rests not on the recusal statutes alone, but on the
appellate courts’ statutory power to ‘require such further
proceedings to be had as may be just under the circum-
stances,’ 28 U.S.C. Sec. 2106.” Liteky v. United States, __
US. . ... 114 S.Ct. 1147, 1156-57, 127 L.Ed. 2a 474
(1994). Thus we are empowered to “direct the entry of
such appropriate ... order . . . as may be just under the
circumstances,” 28 U.S.C. Sec. 2106 (1994), including reas-
signment of the case where, in the language of 28 U.S.C.
Sec. 455(a) (1994), the district judge’s “impartiality might
reasonably be questioned.” See Dyas v. Lockhart, 705 F.2d
993, 997-98 (8th Cir.) (remanding to another district judge
to assure the appearance of impartiality, notwithstanding
that appeal was from court's failure to recuse sua sponte
and the issue was never raised in the district court), cert.
denied, 464 U.S. 982, 104 S.Ct. 424, 78 L.Ed.2d 359 (1983).
The Independent Counsel does not seek review of
Judge Woods’s failure to disqualify himself under 28
U.S.C. Sec. 144 (1994), which requires the party seeking
recusal to timely file an affidavit alleging facts showing
bias with the district judge that he wishes to be disqual-
ified. Unlike Sec. 144, Sec. 455 sets forth no procedure for
seeking recusal in the district court. See Liteky, U.S. at
__, 114 S.Ct. at 1153 (as distinguished from Sec. 144, Sec.
C-26
455 “place[s] the obligation to identify the existence of
those grounds upon the judge himself, rather than requir-
ing recusal only in response to a party affidavit”). The
appellees’ reliance on either the language of Sec. 144 or
on cases interpreting Sec. 144 is misplaced.
Further, the Eighth Circuit cases cited by the appel-
lees are distinguishable. See United States v. Bauer, 19 F.3d
409, 414 (8th Cir.1994) (“This Court has held that claims
under Sec. 455 ‘will not be considered unless timely
made.’ ”) (quoting Holloway v. United States, 960 F.2d
1348, 1355 (8th Cir.1992)). This is not a case like Bauer
and Holloway where actual bias under Sec. 455(b) is
alleged, and where a judge arguably should have an
opportunity first to answer charges of partiality. See 28
U.S.C. Sec. 455(b) (1994) (requiring recusal in cases of
actual bias, conflicts of interest, and where certain rela-
tives of the judge are involved in the proceedings before
the court). Nor is the Independent Counsel seeking to
have the judgment vacated on appeal as a remedy for the
judge’s failure to recuse. In fact, the Independent Counsel
seeks no appellate review at all. Rather, he asks to have
the case reassigned 'to a judge other than Judge Woods,
under the Sec. 2106 powers of this Court, in the event we
reverse the dismissal of the indictment and remand the
case for trial. The Independent Counsel made his request
for reassignment in his appellant's brief. Under Sec. 2106,
that is all that is required to make the request timely.
We turn now to the merits of the OIC’s request.
Under Sec. 455(a), “disqualification is required if a rea-
sonable person who knew the circumstances would ques-
tion the judge’s impartiality, even though no actual bias
or prejudice has been shown.” Gray v. University of Ark.,
C-27
883 F2d 1394, 1398 (8th Cir.1989). Section 455(a) “was
designed to promote public confidence in the integrity of
the judicial process by replacing the subjective ‘in his
opinion’ standard with an objective test.” Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7, 108
S.Ct. 2194, 2202 n. 7, 100 L.Ed.2d 855 (1988). In determin-
ing, then, whether remand to a different district judge is
warranted to achieve the goal of ensuring “the appearance
of impartiality,” we apply “an objective standard of rea-
sonableness.” United States v. Poludniak, 657 F.2d 948, 954
(8th Cir.1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1431, 71
L.Ed.2d 650 (1982). It is the appearance of bias or par-
tiality that matters here, not actual bias.
The Independent Counsel argues that, because of the
“unmistakable appearance” of bias or partiality here,
“[rleassignment is necessary to preserve the appearance
and reality of justice.” Brief of Appellant at 42. We agree.
Based on the information before us in this case, we con-
clude that the risk of a perception of judicial bias or
partiality is sufficiently great so that our proper course
is to order reassignment on remand.!! As we have
'! The Independent Counsel also directs our attention to
certain comments in the District Court’s opinion, which were
reported in the local Arkansas press, that, in the view of the
OIC, “displayed hostility to the Independent Counsel system.”
Brief of Appellant at 46-47. We do not consider these comments
to be persuasive evidence of a perceived bias or partiality.
[JJudicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge. They
may do so if they reveal an opinion that derives from an extrajudicial
source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.
C-28
discussed, Judge Woods’s link with the Clintons and the
Clintons’ connection to Tucker have been widely reported
in the press. Moreover, as the Independent Counsel has
noted, “this case will, as a matter of law, involve matters
related to the investigation of the President and Hillary
Rodham Clinton.” Reply Brief of Appellant at 25. Given
the high profile of the Independent Counsel’s work and
of this case in particular, and the reported connections
among Judge Woods, the Clintons, and Tucker, assign-
ment to a different judge on remand is required to insure
the perception of impartiality.
As a practical matter, there is no shortage of other
judges in the Eastern District of Arkansas to whom this
case may be assigned. Apart from whatever time Judge
Woods spent in ruling on the motion to dismiss the
indictment, judicial resources have not been expended on
the case and neither judicial, prosecutorial, nor defense
efforts will have to be duplicated when the case is reas-
signed. The OIC’s request for reassignment is granted,
not because we believe Judge Woods would not handle
the case in a fair and impartial manner (we have every
confidence that he’ would), but only because we believe
this step is necessary in order to preserve the appearance
as well as the reality of impartial justice.
Liteky, __ U.S. at __, 114 S.Ct. at 1157. We conclude that the
passages referred to by the OIC, standing alone, would not
cause a reasonable person to doubt Judge Woods's impartiality.
C-29
IV.
We have taken with the case Marks’s motion to strike
portions of appellant’s brief and appendix, which accord-
ing to Marks contain “Offending Materials.”
We first reject, without lengthy comment, the conten-
tion that any part of the appellant’s brief raised frivolous
arguments or that the brief “reflects a considered decision
by the Independent Counsel to attack Judge Woods per-
sonally rather than to address the correctness of the trial
court’s decision on its legal merits.” Motion to Strike and
Brief in Support Thereof at 12-13. As we have concluded
in this opinion, not only are the Independent Counsel's
arguments not frivolous, they are meritorious, and the
bulk of his brief is indeed devoted to “address|[ing] the
correctness of the trial court’s decision on its legai
merits.” In any case, Marks need not be concerned that
we so easily could be distracted from our duty to review
the merits of an appeal that is properly before us.
Throughout his motion, Marks mischaracterizes Indepen-
dent Counsel’s advocacy, and comes perilously close to
having filed a frivolous motion.
As for the materials that Marks claims have no busi-
ness being cited in appellant’s brief or being included in
appellant’s appendix, we conclude that they are either
documents properly in the record in this case; legal
authority properly cited to the Court; or publicly filed or
disseminated documents or articles of which we properly
may take judicial notice. Here, too, Marks’s argument is
devoid of merit.
The motion is denied.
C-30
V.
The judgment of the District Court dismissing the
indictment for lack of prosecutorial jurisdiction is
reversed and the case is remanded for trial. The Indepen-
dent Counsel’s motion for reassignment of the case is
granted, and the Chief Judge of the Un.ted States District
Court for the Eastern District of Arkansas is instructed to
see that the case is assigned to a judge other than Judge
Woods. Marks’s motion to strike portions of the Indepen-
dent Counsel’s brief and appendix is denied.
D-1
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
IN RE: GRAND JURY NO. GJ-94-75
FILED UNDER SEAL
ORDER
(Filed Aug. 17, 1995)
Pending before the Court are the following motions:
(1) Motion by Herby Branscum, Jr. to Quash
Subpoena Duces Tecum dated June 27, 1995
(Doc. #105);
(2) Motion by Herby Branscum P.A. to Quash
Subpoena Duces Tecum Dated June 27,
1995, to the Custodian of the Records (Doc.
#106);
(3) Motion by Robert M. Hill and Robert M. Hill
P.A. to Quash or Modify Subpoena (Doc.
#107); and
(4) Motion by Perry County Bank to Quash or
Modify Subpoena and for Protective Order
(Doc. #110).
All four of the Motions challenge the subpoenas on
the following grounds: (1) that the August 5, 1994 Order
appointing Kenneth Starr as Independent Counsel vio-
lates Article III and the Appointments Clause of the
United States Constitution; (2) that the December 19,
1994, Order and the July 28, 1995, Order granting related
matter jurisdiction to Kenneth W. Starr are invalid expan-
sions of the Independent Counsel's jurisdiction; and (3)
D-2
that as Independent Counsel and his attorneys have not
taken the oaths required by law an “unauthorized per-
son” issued the subpoenas in question.
One or more of the Motions contend that the sub-
poenas should be quashed on the following grounds: (1)
that the subpoenas to Messrs. Branscum and Hill seeking
evidence of contributions to the Clintons 1990 guber-
natorial campaign and the 1992 presidential campaign
violate the First Amendment right to free speech and
association; (2) that the subpoenas are unreasonable and
oppressive; (3) that the subpoenas requests information
which is protected by the attorney/client privilege; (4)
that the subpoena is offensive, abusive and inappropri-
ate; and (5) that Independent Counsel has violated Rule
6(e)(2) of the Federal Rules of Criminal Procedure.
Before addressing any of the specific arguments put
fourth by Movants, it is significant that the law provides
that rarely may a grand jury witness challenge the grand
jury’s authority or its jurisdiction as the subpoenaed wit-
ness lacks standing to litigate the jurisdictional issues.
The power of a federal court to compel persons
to appear and testify before a grand jury is
. firmly established. Kastigar v. United States,
406 U.S. 441 (1972). The duty to testify has long
been recognized as a basic obligation that every
citizen owes his Government. Blaskmer v. United
States, 284 U.S. 421, 438 (1932); United States v.
Bryan, 339 U.S. 323, 331 (1950). In Branzburg v.
Hayes, supra, at 682 and 688, the Court noted
that “[c]itizens generally are not constitutionally
immune from grand jury subpoenas... ” and
that “the longstanding principle that ‘the et
lic... has a right to every man’s evidence’ . . . is
D-3
particularly applicable to grand jury proceed-
ings.” The duty to testify may on occasion be
burdensome and even embarrassing. It may
cause injury to a witness’ social and economic
status. Yet the duty to testify has been regarded
as “so necessary to the administration of justice”
that the witness’ personal interest in privacy
must yield to the public’s overriding interest in
full disclosure. Blair v. United States, 250 U.S., at
281. Furthermore, a witness may not interfere
with the course of the grand jury’s inquiry. He
“is not entitled to urge objections of incompe-
tency or irrelevancy, such as a party migt raise,
for this is no concern of his.” Id. at 282. Nor is he
entitled “to challenge the authority of the court
or of the grand jury” or “to set limits to the
investigation that the grand jury may conduct.”
Ibid.
United States v. Calandra, 414 U.S. 338, 345 (1974).
The August 5, 1994, Order of the Special Division of
the Court of Appeals for the District of Columbia
appointing Independent Counsel granted Mr. Starr the
power to investigate and prosecute: “ .. . any individuals
or entities . . . relating in any way to James B. McDou-
gal’s, President William Jefferson Clinton’s, or Mrs. Hill-
ary Rodham Clinton’s relationships with Madison
Guaranty Savings & Loan Association, Whitewater
Development Corporation, or Capital Management Ser-
vices, Inc.” In re: Madison Guaranty Savings & Loan Asso-
ciation, Div No. 94-1, 1 (D.C. Cir. Special Division, August
5, 1994). The Order also provides that:
[t]he Independent Counsel shall have jurisdic-
tion and authority to investigate other allega-
tions or evidence of violation of any federal
D-4
criminal law, other than a Class B or C misde-
meanor or infraction, by any person or entity
developed during the Independent Counsel's
investigation referred to above and connected
with or arising out of that investigation.
Id. at 2. The Movants argue that this is an overly broad
grant of jurisdiction which violates Morrison v. Olson, 108
S.Ct. 2597 (1988). Therein, the Court held as follows:
_.. we do not think that Congress may give the
division unlimited discretion to determine the
independent counsel's jurisdiction. In order for
the Division’s definition of the counsel's juris-
diction to be truly “incidental” to its power to
appoint, the jurisdiction that the court decides
upon must be demonstrably related to the fac-
tual circumstances that gave rise to the Attorney
General’s investigation and request for the
appointment of the Independent Counsel in the
particular case.
Id. at 2613.
It is significant that the Movants are not subpoenaed
before the grand jury pursuant to what the Movants are
attacking as an ovefly broad grant of jurisdiction in the
original Order appointing Kenneth Starr as Independent
Counsel. Rather, the Movants are subpoenaed before the
grand jury pursuant to the referral provisions of 28 U.S.C.
§ 594(e) which provides as follows:
Referral of other matters to an independent
counsel. -
An independent counsel may ask the Attorney Gen-
eral or the division of the court to refer to the
independent counsel matters related to the indepen-
dent counsel's prosecutorial jurisdiction, and the
D-5
Attorney General or the division of the court, as
the case may be, may refer such matters. If the
Attorney General refers a matter to an indepen-
dent counsel on the Attorney General’s own
initiative, the independent counsel may accept
such referral if the matter relates to the indepen-
dent counsel’s prosecutorial jurisdiction. If the
Attorney General refers any matter to the indepen-
dent counsel pursuant to the independent counsel’s
request, or if the independent counsel accepts a
referral made by the Attorney General on the
Attorney General’s own initiative, the indepen-
dent counsel shall so notify the division of the court.
28 U.S.C. § 594(e).
As reflected in the Independent Counsel’s Memoran-
dum in Opposition to the Motions to Quash, the Indepen-
dent Counsel requested on August 29, 1994, pursuant to
28 U.S.C. § 594(e), that the Attorney General refer to the
Office of the Independent Counsel responsibility for
investigation and possible prosecution of any violations
of federal criminal law in connection with accounts by
the 1990 Clinton gubernatorial campaign at the Perry
County Bank. On September 2, 1994, the Attorney Gen-
eral concluded that the Perry County Bank matter was
related to the Independent Counsel’s investigation, and
referred the matter to the Office of Independent Counsel
for investigation and possible prosecution. On September
12, 1994, the Independent Counsel notified the Special
Division of the Attorney General's referral. On December
16, 1994, the Independent Counsel applied to the Special
Division for an Order of Referral. On December 19, 1994,
the Special Division referred the matter to Independent
Counsel by granting the application.
D-6
On June 8, 1995, the Independent Counsel requested
that the Attorney General refer investigative and pros-
ecutorial jurisdiction over certain political contributions
made to the 1990 Clinton gubernatorial campaign and the
1992 Clinton presidential campaign. On June 21, 1995, the
Attorney General referred the matter to the Independent
Counsel. On July 17, 1995, the Independent Counsel noti-
fied the Special Division of the Attorney General’s refer-
ral. On July 20, 1995, the Independent Counsel applied to
the Special Division for an Order of Referral. On July 28,
1995, the Special Division referred the matter to the Inde-
pendent Counsel by granting the application.
The Movants assert that regardless of Independent
Counsel proceeding in accordance with 28 U.S.C. § 594(e)
that the Attorney General’s determination of “related-
ness” is in reference to an unconstitutional Order as it is
overly broad pursuant to Morrison. Thus, the fruit of the
tree, they argue, is poisoned. However, the Court does
not agree.
The circumstances requiring the Independent
Counsel to employ the jurisdictional expansion
procedures, as opposed to relying on his origi-
nal grant, are distinct. If the new matter is
“related to the Independent Counsel’s pros-
ecutorial jurisdiction,” he must ask the Attorney
General or the Special Division to refer it to him
formally. See 28 U.S.C. § 594(e) (Supp. 1989). If,
however, the new matter is “related to [the]
subject matter” of the Attorney General’s origi-
nal request for appointment, he may proceed on
his own. See id. § 593(b)(3).
U.S. v. Secord, 725 F. Supp. 563 (D.D.C. 1989).
D-7
The Movants also argue that the Court should set
aside the Attorney General's determination of “related-
ness”. In contrast to the Independent Counsel's argument
that the Attorney General’s decision is unreviewable, the
Movants assert that the actions of the Attorney General
should be reviewed by the Court to -
hold unlawful and set aside any agency action,
findings and conclusions found to be:
(a) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law;
(b) contrary to constitutional right, power,
privilege, or an immunity;
(c) in excess of statutory jurisdiction, author-
ity, or limitations, or short of statutory
right; .. .
5 U.S.C. § 706.
The Court agrees with the Independent Counsel’s
argument that the Attorney General’s decision to refer
certain matters to the Independent Counsel are issues
committed to her discretion and not subject to judicial
review. As reflected in the Independent Counsel's
Response the conference report to the 1987 amendments
to the Act supports this finding:
The conferees agree that an Attorney General’s
determinations under the independent counsel
laws are not subject to judicial review. This
includes such determinations as whether to
investigate a person under section 591(c),
whether to exercise recusal from a case, and
whether to require appointment of an indepen-
dent counsel. An exception is the Attorney Gen-
eral’s decision to remove an independent
ee a a
D-8
counsel from office; judicial review of that deter-
mination is available.
H.R. Conf. Rep. No. 452, 100th Con., Ist Sess. at 22,
reprinted in 1987 U.S.C.C.A.N. 2150, 2188 (emphasis
added).
The Movants asserts that there is no evidence that the
Independent Counsel and his attorneys have not taken
the oaths required by law resulting in an unauthorized
person causing the issuance of the subpoenas. The Inde-
pendent Counsel asserts that this argument is baseless.
Independent Counsel’s Opposition to the Motions to
Quash and attached exhibits reflect that Kenneth Starr
took his oath of office on August 9, 1995, and Associate
Independent Counsel Mayopoulos took his oath of office
on October 5, 1994. In the Movants’ Replies to Indepen-
dent Counsel’s Opposition, the Movants acknowledge
that the oaths are in compliance with 5 U.S.C. § 3331 but
asserts that there is no evidence of compliance with 5
U.S.C. § 3332 which provides as follows:
Officer affidavit; no consideration paid for
appointment - An officer, within 30 days after
the effective date of his appointment, shall file
with the oath of office required by section 3331
of this title an affidavit that neither he nor any-
one acting in his behalf has given, transferred,
promised, or paid any consideration for or in
the expectation or hope of receiving assistance
in securing the appointment.
As initially stated by the Court, the standing of
Movants to challenge the oath is tenuous at best. Further-
more, the Court can not find that this new challenge to
the validity of the oaths raised in the Movants’ Reply
D-9
—
Briefs shifts the burden to Independent Counsel to make
a showing of compliance prior to proceeding with the
subpoenas. Furthermore, the original attack made on the
validity of the oaths of Independent Counsel was sup-
ported with a cite to United States v. Pignatiello, 582
F.Supp. 251 (D.Colo. 1984). Therein, an SEC lawyer failed
to take an oath to faithfully execute her duties prior to
appearing at a grand jury. As a result, the indictment
issued by that grand jury was dismissed. The Court finds
the case clearly distinguishable as Independent Counsel
has provided proof of oath to faithfully execute his
duties. Additionally, Pignatiello is a post indictment case
and is likewise distinguishable on that ground.
The Court finds against Messrs. Branscum and Hill
on their First Amendment arguments as well. There has
been a showing of a compelling governmental interest
and a sufficient nexus between the information sought
and the subject matter of the investigation. In re Faltico,
561 F.2d 109, 111 (8th Cir. 1977). “The First Amendment
generally does not offer protection from a duty to testify
before the grand jury.” See Branzburg v. Hayes, 408 U.S.
665 (1972). Fogel v. Chestnutt, 533 F.2d 731 (1st Cir 1976).
The Court finds in favor of the Independent Counsel
as to Mr. Hill’s and Perry County Bank’s arguments that
the subpoenas are unreasonable, oppressive, offensive,
abusive and inappropriate. Upon review of the sub-
poenas it is the Court’s findings that they are sufficiently
narrowly tailored and for a proper purpose. As the
Supreme Court stated in Branzburg, 408 U.S. 665 “[a]
grand jury investigation is not fully carried out until
every available clue has been run down and all witnesses
examined in every proper way to find if a crime has been
vm,
ee a
aici, Solis shtinnl teate
D-10
committed.’ ” Id. at 701 (quoting United States v. Stone, 429
F.2d 138, 140 (2d Cir. 1970).
In response to Mr. Hill's argument that the subpoena
seeks information which is protected by the attorney/
client privilege, the Independent Counsel has agreed that
he will not seek to compel disclosure of those documents
that Mr. Hill and his counsel affirmatively represent were
created by persons other than Mr. Hill and collected by
Mr. Hill at the direction of his counsel for counsel's use in
preparing Mr. Hill’s defense to charges that Independent
Counsel might bring against Mr. Hill. Thus, Mr. Hills
Motion to Quash is moot as to the issue of attorney /client
privilege.
Finally, the Court finds that the Independent Counsel
has not violated Rule 6(e)(2) of the Federal Rules of
Criminal procedure as the government is not prohibited
from revealing information contained in a subpoenaed
document to a witness who may be able to provide addi-
tional information about it. See, e.g., United States v. Stan-
ford, 589 F.2d 285, 291 (7th Cir. 1978).
Thus, the Motion by Herby Bransucm, Jr. to Quash
Subpoena Duces Tecum Dated June 27, 1995 (Doc. #105)
is denied; the Motion by Herby Branscum, P.A. to Quash
Subpoena Duces Tecum Dated June 27, 1995, to the Cus-
todian of the Records (Doc. #106) is denied; the Motion
by Robert M. Hill and Robert M. Hill, P.A. (Doc. #107) is
denied in part and is moot in part; the Motion by Perry
County Bank to Quash or Modify Subpoenas and for
Protective Order is denied (Doc. #110).
D-11
It is SO ORDERED this 17th day of August, 1995.
/s/ Stephen M. Reasoner
UNITED STATES
DISTRICT JUDGE
ap ep albeit Vastly soa biatics tinct bit aetna 2 APN
ncphnehionncn Cheeks sie
D-12
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
IN RE: GRAND JURY GJ-94-75
FILED UNDER SEAL
ORDER
(Filed Aug. 25, 1995)
Pending before the Court is the Motion of the United
States for an Order Compelling Production of Documents
Called for by Grand Jury Subpoenas Duces Tecum to
Herby Branscum, Jr., Herby Branscum, Jr., P.A., Robert M.
Hill, Robert M. Hill, P.A., and Perry County Bank. In
response to the Motion of the United States, Movants
Herby Branscum, Jr., Herby Branscum, Jr., P.A., Robert M.
Hill, Robert M. Hill, P.A., and Perry County Bank have
filed a Motion for Reconsideration, Clarification, and
Supplemental Motion to Quash Subpoenas. For the rea-
sons listed below, the United States’ motion is granted,
and the movants’ motion is denied.
The court appreciates the position of the movants
and their ardent attempts to have the subpoenas at issue
quashed. However, the court has thoroughly addressed
the issues that the movants have raised in its Order of
August 17, 1995, and the time has arrived for the movants
to comply with the Grand Jury subpoenas which have
been issued.
Therefore, the movants are hereby ORDERED to pro-
duce the documents called for by the Grand Jury Sub-
poenas Duces Tecum Numbers 1100, 1101, 1102, 1103, and
1104 dated June 27, 1995. Movants have until August
D-13
31st, 1995 to deliver to the Office of the Independent
Counsel said documents as the agent for the Grand Jury.
It is SO ORDERED this 24th day of August, 1995.
/s/ Stephen M Reasoner
UNITED STATES
DISTRICT JUDGE
D-14
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
IN RE GRAND JURY GJ-94-75
PROCEEDINGS Filed Under Seal
ORDER
(Filed Sept. 8, 1995)
Presently before the court are the Government's
Motion to Show Cause, and Movants Perry County Bank,
Herby Branscum, Herby Branscum, P.A., Robert Hill and
Robert Hill, P.A.’s Motion to Stay Imposition of Contempt
Sanctions (#143 & #144). The court conducted a hearing
on the issues raised in these motions and finds the
Movants in contempt of this court’s Orders of August 17,
1995 and August 25, 1995. The Movants have until Sep-
tember 15, 1995 to purge themselves of their contempt by
fully complying with the Subpoenas Duces Tecum at
issue in those Orders. After September 15, 1995, fines of
$1,000.00 per day on Herby Branscum, Herby Branscum,
P.A., Robert Hill and Robert Hill, P.A. are imposed for
each day of non-compliance. Additionally, a fine of
$5,000.00 per day is imposed on Perry County Bank for
each day of non-compliance. The court reserves ruling on
whether the fines may be forgiven if full compliance
occurs after September 15, 1995. The court denies the
Movants’ motions to stay imposition of contempt sanc-
tions.
D-15
It is SO ORDERED this 8th day of September, 1995.
/s/ Stephen M. Reasoner
UNITED STATES
DISTRICT JUDGE
Lee ee ee ee ee
E-1
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
In re: Madison Guaranty Division No. 94-1
Savings & Loan Association
Order Appointing
Independent Counsel
(Filed Aug. 05, 1994
Before: SeNTELLE, Presiding,, and ButzNer and SNEED,
Senior Circuit Judges.
Upon consideration of the application of the Attor-
ney General pursuant to 28 U.S.C. § 592(c) (1) (A) for the
appointment of an independent counsel with authority to
exercise all the power, authority and obligations set forth
in 28 U.S.C. § 594, to investigate whether any individuals
or entities have committed a violation of federal criminal
law, other than a Class B or C misdemeanor or infraction,
relating in any way to James B. McDougal’s, President
William Jefferson Clinton's, or Mrs. Hillary Rodham Clin-
ton’s relationships with Madison Guaranty Savings and
Loan Association, Whitewater Development Corporation,
or Capital Management Services, Inc.; it is
ORDERED by the Court in accordance with the
authority vested in it by 28 U.S.C. § 593 (b) that Kenneth
W. Starr, Esquire, of the District of Columbia bar, with
E-2
offices at Kirkland and Ellis, 655-15th Street, NW, Wash-
ington, DC, 20005, be and he is hereby appointed Inde-
pendent Counsel with full power, independent authority,
and jurisdiction to investigate to the maximum extent
authorized by the Independent Counsel Reauthorization
Act of 1994 whether any individuals or entities have
committed a violation of any federal criminal law, other
than a Class B or C misdemeanor or infraction, relating in
any way to James B. McDougal’s, President William
Jefferson Clinton’s, or Mrs. Hillary Rodham Clinton’s
relationships with Madison Guaranty Savings & Loan
Association, Whitewater Development Corporation, or
Capital Management Services, Inc.
The Independent Counsel shall have jurisdiction and
authority to investigate other allegations or evidence of
violation of any federal criminal law, other than a Class B
or C misdemeanor or infraction, by any person or entity
developed during the Independent Counsel’s investiga-
tion referred to above and connected with or arising out
of that investigation.
The Independent Counsel shall have jurisdiction and
authority to investigate any violation of 28 U.S.C. § 1826,
or any obstruction of the due administration of justice, or
any material false testimony or statement in violation of
federal criminal law, in connection with any investigation
of the matters described above.
The Independent Counsel shall have jurisdiction and
authority to seek indictments and to prosecute any per-
sons or entities involved in any of the matters described
above, who are reasonably believed to have committed a
violation of any federal criminal law arising out of such
E-3
matters, including persons or entities who have engaged
in an unlawful conspiracy or who have aided or abetted
any federal offense.
The Independent Counsel shall have all the powers
and authority provided by the Independent Counsel
Reauthorization Act of 1994. It is
FURTHER ORDERED by the Court that the Indepen-
dent Counsel, as authorized by 28 U.S.C. § 594, shall have
prosecutorial jurisdiction to fully investigate and pros-
ecute the subject matter with respect to which the Attor-
ney General requested the appointment of independent
counsel, as hereinbefore set forth, and all matters and
individuals whose acts may be related to that subject
matter, inclusive of authority to investigate and prosecute
federal crimes (other than those classified as Class B or C
misdemeanors or infractions) that may arise out of the
above described matter, including perjury, obstruction of
justice, destruction of evidence, and intimidation of wit-
nesses. The Court, having reviewed the motion of the
Attorney General that Robert B. Fiske, Jr., be appointed as
Independent Counsel, has determined that this would not
be consistent with the purposes of the Act. This reflects
no conclusion on the part of the Court that Fiske lacks
either the actual independence or any other attribute
necessary to the conclusion of the investigation. Rather,
the Court reaches this conclusion because the Act con-
templates an apparent as well as an actual independence
on the part of the Counsel. As the Senate Report accom-
panying the 1982 enactments reflected, “[t]he intent of
the special prosecutor provisions is not to impugn the
integrity of the Attorney General or the Department of
Justice. Throughout our system of justice, safeguards
E-4
exist against actual or perceived conflicts of interest with-
out reflecting adversely on the parties who are subject to
conflicts.” S. Rep. No. 496, 97th Cong., 2d Sess. at 6 (1982)
(emphasis added). Just so here. It is not our intent to
impugn the integrity of the Attorney General’s appointee,
but rather to reflect the intent of the Act that the actor be
protected against perceptions of conflict. As Fiske was
appointed by the incumbent administration, the Court
therefore deems it in the best interest of the appearance
of independence contemplated by the Act that a person
not affiliated with the incumbent administration be
appointed.
It further appearing to the Court in light of the
Attorney General’s motion heretofore made for the
authorization of the disclosure of her application for this
appointment pursuant to 28 U.S.C. § 592 (e) and of the
ongoing public proceedings and interest in this matter,
that it is in the best interests of justice for the identity and
prosecutorial jurisdiction of the Independent Counsel to
be disclosed,
IT IS SO ORDERED.
Per Curiam
For the Court:
/s/ Ron Garvin
Ron Garvin, Clerk
F-1
APPENDIX F
[SEAL] U.S. Department of Justice
Criminal Division
Office of the Assistant Attorney General
Washington, D.C. 20530
September 2, 1994
Mr. Kenneth W. Starr
Two Financial Centre
10825 Financial Centre Parkway
Suite 134
Little Rock, Arkansas 72211
Dear Mr. Starr:
The Attorney General has received your letter of
August 29, 1994 requesting that the Department of Justice
refer to the Office of Independent Counsel/ Madison
Guaranty Bank related matters pursuant to 28 U.S.C.
§ 594(e). After reviewing your description of the informa-
tion developed in the the course of the investigation
conducted by the office of Independent Counsel, she has
concluded that these matters are related to your investi-
gation and that referral to your office would be appropri-
ate. I therefore refer investigative and prosecutorial
jurisdiction over the following matters to your office:
(1) Whether any person committed any federal
crime in connection with accounts maintained by the 1990
Clinton gubernatorial campaign at the Perry County
Bank; and
F-2
REDACT REDACT REDACT
Your jurisdiction affords you necessary flexibility in
structuring your investigation. To the extent you deter-
mine that aspects of these matters which might fall tech-
nically within the broad scope of your jurisdiction are not
sufficiently related to your mandate to warrant handling
by your office, you may wish to consider referring those
aspects back to the Department of Justice for handling
pursuant to 28 U.S.C. § 597(a).
Should you wish at any time to consult with the
Department of Justice concerning Departmental policies
with respect to these criminal tax, campaign financing, or
other matters, 28 U.S.C. § 594(f)(1), L invite you to contact
Lee J. Radek, Chief, Public Integrity Section, Criminal
Division, who will put you in touch with the appropriate
Departmental officials. He can be reached at (202)
514-1412.
To complete our files, I would appreciate your pro-
viding Mr. Radek with a copy of your notification to the
Special Division of the Court of this referral. 28 U.S.C.
§ 594(e). Please let us know if we can be of any further
assistance to you in the course of your investigation.
Sincerely,
/s/ John C. Keeney
Acting Assistant
Attorney General
Criminal Division
7
’
sbaget a beet
F-3
[SEAL] U.S. Department of Justice
Criminal Division
Office of the Assistant Attorney General
Washington, D.C. 20530
June 21, 1995
The Honorable Kenneth W. Starr
Independent Counsel
Office of the Independent Counsel
Two Financial Centre Parkway
Suite 134
Little Rock, Arkansas 72211
Dear Judge Starr:
The Attorney General has received your letter of June
8, 1995, requesting that the Department of Justice refer to
the Office of the Independent Counsel/Madison Guar-
anty Bank a related matter pursuant to 28 U.S.C. § 594(e).
After reviewing your description of the information
developed in the course of the investigation conducted by
the Office of the Independent Counsel, she has concluded
that this matter is related to one of the matters referred to
you by the Department of Justice on September 2, 1994,
and that referral to your office would be appropriate. We
therefore refer investigative and prosecutorial jurisdic-
tion over the following matter to your office:
Whether any person committed any federal
crime in connection with contributions made by
Herby Branscum, Jr., Robert M. Hill, members of
their families, or any other persons associated
with them, to the 1990 Clinton gubernatorial
F-4
campaign or the 1992 Clinton presidential cam-
paign.
This referral is broad enough to afford you necessary
flexibility in structuring your investigation. However, to
the extent you determine that aspects of this matter
which might fall technically within the broad scope of
your jurisdiction are not sufficiently related to your man-
date to warrant handling by your office, you may refer
those aspects back to the Department of Justice. 28 U.S.C.
§ 597(a).
Should you wish at any time to consult with the
Department of Justice concerning Departmental policies
with respect to this or any other matter, 28 U.S.C.
§ 594(f)(1), please do not hesitate to contact either me or
Lee J. Radek, Chief, Public Integrity Section, and we will
put you in touch with the appropriate Departmental offi-
cials.
To complete our files, | would appreciate your pro-
viding me with a copy of your notification to the Special
Division of the Court of this referral. 28 U.S.C. § 594(e).
Please let me know if we can be of any further assistance
to you in the course of your investigation.
Sincerely,
/s/ Jo Ann Harris
Jo Ann Harris
Assistant Attorney General
ol A Abr a Mat es
LS gr 0h NOT Hw
G-1
APPENDIX G
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
In re: Madison Guaranty Savings Division No. 94-1
& Loan Association
FILED UNDER SEAL
ORDER
(Filed July 28, 1995)
Before: Sentelle, Presiding, Butzner and Fay, Senior Cir-
cuit Judges
Upon consideration of the Application for Order of
Referral and Order of Jurisdiction of Independent Coun-
sel filed under seal on July 21, 1995, it is
HEREBY ORDERED that investigative and pros-
ecutorial jurisdiction over the following matters be
referred to the Independent Counsel Kenneth W. Starr
and to the Office of the Independent Counsel (hereinafter
collectively “the Office”) as related matters pursuant to
28 U.S.C. § 594 (e):
(1) Whether any person committed any federal
crime in connection with contributions made by Herby
Branscum, Jr., Robert M. Hill, members of their families,
or any other persons associated with them, to the 1990
Clinton gubernatorial campaign or the 1992 Clinton presi-
dential campaign; and
G-2
REDACTED REDACTED REDACTED
REDACTED
IT IS FURTHER ORDERED, that, as a result of the
referral of the above-described matters, the referral of the
matters set forth in the Order of this Court entered
December 19, 1994, and the jurisdictional grant made by
this Court on August 5, 1994, Kenneth W. Starr has full
power, independent authority, and jurisdiction to investi-
gate to the maximum extent authorized by the Indepen-
dent Counsel Reauthorization Act of 1994 whether any
individuals or entities have committed a violation of any
federal criminal law, other than a Class B or C misde-
meanor or infraction, relating in any way to James B.
McDougal’s, President William Jefferson Clinton’s, or
Mrs. Hillary Rodham Clinton’s relationships with Mad-
ison Guaranty Savings & Loan Association, Whitewater
Development Corporation, or Capital Management Ser-
vices, Inc.
The Independent Counsel further has jurisdiction
and authority to investigate other allegations or evidence
of violation of any federal criminal law, other than a Class
B or C misdemeanor or infraction, by any person or entity
developed during the Independent Counsel’s investiga-
tion referred to above and connected with or arising out
of that investigation, including, but not limited to:
(1) Whether any person committed any federal
crime in connection with accounts maintained by the 1990
Clinton gubernatorial campaign at the Perry County
Bank;
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G-3
REDACTED REDACTED
REDACTED REDACTED REDACTED
REDACTED REDACTED REDACTED
REDACTED REDACTED REDACTED
(8) Whether any person committed any federal
crime in connection with contributions made by Herby
Branscum, Jr., Robert M. Hill, members of their families,
or any other persons associated with them, to the 1990
Clinton gubernatorial campaign or the 1992 Clinton presi-
dential campaign; and
REDACTED REDACTED REDACTED
The Independent Counsel has jurisdiction and
authority to investigate any violation of 28 U.S.C. § 1826,
or any obstruction of the due administration of justice, or
any material false testimony or statement in violation of
federal criminal law, in connection with any investigation
of the matters described above.
The Independent Counsel has jurisdiction and
authority to seek indictment and to prosecute any per-
sons or entities involved in any of the matters described
above, who are reasonably believed to have committed a
violation of any federal criminal law arising out of such
matters, including persons or entities who have engaged
in an unlawful conspiracy or who have aided or abetted
any federal offense.
The Independent Counsel has all the powers and
authority provided by the Independent Counsel Reau-
thorization Act of 1994.
G-4
The Independent Counsel, as authorized by 28 U.S.C.
§ 594, has prosecutorial jurisdiction to fully investigate
and prosecute the subject matter with respect to which
the Attorney General requested the appointment of inde-
pendent counsel, and all matters and individuals whose
acts may be related to that subject matter, inclusive of
authority to investigate and prosecute federal crimes
(other than those classified as Class B or C misdemeanors
or infractions) that may arise out of the above described
matter, including perjury, obstruction of justice, destruc-
tion of evidence, and intimidation of witnesses.
REDACTED REDACTED REDACTED
REDACTED REDACTED REDACTED
IT IS SO ORDERED.
Dated: July 28, 1995
Per curiam
For the Court:
/s/ Mark J. Langer
Mark J. Langer, Clerk
H-1
APPENDIX H
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Division of the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
Division No. 94-1
UNDER SEAL
(Filed Dec. 19, 1994)
In re: Madison Guaranty
Savings & Loan
Association
ORDER
Upon consideration of the Application for Order of
Referral and Order of Jurisdiction of Independent Coun-
sel filed under seal, it is
HEREBY ORDERED that investigative and pros-
ecutorial jurisdiction over the following matters be
referred to the Independent Counsel Kenneth W. Starr
and to the Office of the Independent Counsel (hereinafter
collectively “the Office”) as related matters pursuant to
28 U.S.C. § 594(e): -
(1) Whether any person committed any
federal crime in connection with accounts main-
tained by the 1990 Clinton gubernatorial cam-
paign at the Perry County Bank;
REDACT REDACT REDACT
REDACT REDACT REDACT
REDACT REDACT REDACT
REDACT REDACT REDACT
REDACT REDACT REDACT
H-2
REDACT REDACT REDACT
REDACT REDACT REDACT
REDACT REDACT REDACT
IT IS FURTHER ORDERED, that, as a result of the
referral of the above-described matters and the jurisdic-
tional grant made by this Court on August’5, 1994, Ken-
neth W. Starr has full power, independent authority, and
jurisdiction to investigate to the maximum extent autho-
rized by the Independent Counsel Reauthorization Act of
1994 whether any individuals or entities have committed
a violation of any federal criminal law, other than a Class
B or C misdemeanor or infraction, relating in any way to
James B. McDougal’s, President William Jefferson Clin-
ton’s, or Mrs. Hillary Rodham Clinton’s relationships
with Madison Guaranty Savings & Loan Association,
Whitewater Development Corporation, or Capital Man-
agement Services, Inc.
The Independent Counsel further has jurisdiction
and authority to investigate other allegations or evidence
of violation of any federal criminal law, other than a Class
B or C misdemeanor or infraction, by any person or entity
developed during the Independent Counsel’s investiga-
tion referred to above and connected with or arising out
of that investigation, including, but not limited to:
(1) Whether any person committed any
federal crime in connection with accounts main-
tained by the 1990 Clinton gubernatorial cam-
paign at the Perry County Bank;
REDACT REDACT REDACT
REDACT REDACT REDACT
ae ad Kleen ah bail 6 ind
eee yee
ere ee ee
H-3
REDACT REDACT REDACT
REDACT REDACT REDACT
REDACT REDACT REDACT
REDACT REDACT REDACT
REDACT REDACT REDACT
REDACT REDACT REDACT
The Independent Counsel has jurisdiction and
authority to investigate any violation of 28 U.S.C. § 1826,
or any obstruction of the due administration of justice, or
any material false testimony or statement in violation of
federal criminal law, in connection with any investigation
of the maiters described above.
The Independent Counsel has jurisdiction and
authority to seek indictment and to prosecute any per-
sons or entities involved in any of the matters described
above, who are reasonably believed to have committed a
violation of any federal criminal law arising out of such
matters, including persons or entities who have engaged
in an unlawful conspiracy or who have aided or abetted
any federal offense.
The Independent Counsel has all the powers and
authority provided by the Independent Counsel Reau-
thorization Act of 1994.
The Independent Counsel, as authorized by 28 U.S.C.
§ 594, has prosecutorial jurisdiction to fully investigate
and prosecute the subject matter with respect to which
the Attorney General requested the appointment of inde-
pendent counsel, and all matters and individuals whose
acts may be related to that subject matter, inclusive of
H-4
authority to investigate and prosecute federal crimes
(other than those classified as Class B or C misdemeanors
or infractions) that may arise out of the above described
matter, including perjury, obstruction of justice, destruc-
tion of evidence, and intimidation of witnesses.
REDACT REDACT REDACT
REDACT REDACT REDACT
REDACT REDACT REDACT
REDACT REDACT REDACT
Per Curiam
For the Court:
IT IS SO ORDERED.
Dated: December 19, 1994
/s/ Ron Garvin
Ron Garvin, Clerk
I-1
APPENDIX I
UNITED STATES CONSTITUTION, ARTICLE I, § 1
Section 1. All legislative powers herein granted
shall be vested in a Congress of the United States, which
shall consist of a Senate and House of Representatives.
* * *
UNITED STATES CONSTITUTION, ARTICLE II, § 2
The president shall be commander-in-chief of the
army and navy of the United States, and of the militia of
the several states, when called into the actual service of
the United States; he may require the opinion, in writing,
of the principal officer in each of the executive depart-
ments, upon any subject relating to the duties of their
respective offices, and he shall have power to grant
reprieves and pardons for offenses against the United
States, except in cases of impeachment.
He shall have power, by and with the advice and
consent of the senate, to make treaties, provided two-
thirds of the senators present concur; and he shall nomi-
nate, and by and with the advice and consent of the
senate, shall appoint ambassadors, other public ministers
and consuls, judges of the Supreme Court, and all other
officers of the United States, whose appointments are not
herein otherwise provided for, and which shall be estab-
lished by law: but the congress may by law vest the
appointment of such inferior officers, as they think
I-2
proper, in the President alone, in the courts of law, or in
the heads of departments.
The President shall have power to fill up all vacan-
cies that may happen during the recess of the senate, by
granting commissions which shall expire at the end of
their next session.
UNITED STATES CONSTITUTION, ARTICLE III, § 1
The judicial power of the United States, shall be
vested in one Supreme Court, and in such inferior courts
as the congress may from time to time ordain and estab-
lish. The judges, both of the Supreme and inferior courts,
shall hold their offices during good behavior, and shall, at
stated times, receive for their services, a compensation,
which shall not be diminished during their continuance
in office.
UNITED STATES CONSTITUTION, ARTICLE III, § 2
The judicial power shall extend to all cases, in law
and equity, arising under this Constitution, the laws of
the United States, and treaties ma@t, or which shall be
made, under their authority; - to all cases affecting
ambassadors, other public ministers and consuls; - to all
cases of admiralty and maritime jurisdiction; - to contro-
versies to which the United States shall be a party; — to
ae SSG ERE RBA? i EA Ac 088 A RE a Oh hee ae RS oS
Ae Le Re Beebe k, Sete yeah ete RENE oO?
ei at ne NS
Wadia ina H Cad at cientcet eH
I-3
controversies between two or more states; - between a
state and citizens of another state; — between citizens of
different states; — between citizens of the same state
claiming lands under grants of different states, and
between a state, or the citizens thereof, and foreign states,
citizens or subjects.
In all cases affecting ambassadors, other public min-
isters and consuls, and those in which a state.shall be a
party, the Supreme Court shall have original jurisdiction.
In all the other cases before mentioned, the Supreme
Court shall have appellate jurisdiction, both as to law and
fact, with such exceptions, and under such regulations as
the congress shall make.
The trial of all crimes, except in cases of impeach-
ment, shall be by jury; and such trial shall be held in the
state where the said crime shall have been committed; but
when not committed within any state, the trial shall be at
such place or places as the congress may by law have
directed.
5 U.S.C. § 706. Scope of review
To the extent necessary to decision and when pre-
sented, the reviewing court shall decide all relevant ques-
tions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of
the terms of an agency action. The reviewing court shall -
1-4
(1) compel agency action unlawfully with-
held or unreasonably delayed; and
(2) hold unlawful and set aside agency
action, findings, and conclusions found to be -
(A) arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with
law;
(B) contrary to constitutional right,
power, privilege, or immunity;
(C) in excess of statutory jurisdiction,
authority, or limitations, or short of statu-
tory right;
(D) without observance of procedure
required by law;
(E) unsupported by substantial evidence
in a case subject to sections 556 and 557 of this
title or otherwise reviewed on the record of an
agency hearing provided by statute; or
(F) unwarranted by the facts to the
extent that the facts are subject to trial de
novo by the reviewing court.
In making the foregoing determinations, the
court shall review the whole record or those
parts of it cited by a party, and due account shall
be taken of the rule of prejudicial error.
5 U.S.C. § 2104. Officer
(a) For the purpose of this title, “officer”, except as
otherwise provided by this section or when specifically
I-5
modified, means a justice or judge of the United States
and an individual who is -
(1) required by law to be appointed in the civil
service by one of the following acting in an official
capacity -
(A) the President;
(B) a court of the United States;
(C) the head of an Executive agency; or
(D) the Secretary of a military department;
(2) engaged in the performance of a Federal func-
tion under authority of law or an Executive act; and
(3) subject to the supervision of an authority
named by paragraph (1) of this section, or the Judi-
cial Conference of the United States, while engaged
in the performance of the duties of his office.
(b) Except as otherwise provided by law, an officer
of the United States Postal Service or of the Postal Rate
Commission is deemed not an officer for purposes of this
title.
5 U.S.C. § 2903. Oath: authority to administer
(a) The oath of office required by section 3331 of
this title may be administered by an individual autho-
rized by the laws of the United States or local law to
administer oaths in the State, District, or territory or
possession of the United States where the oath is admin-
istered.
1-6
(b) An employee of an Executive agency designated
in writing by the head of the Executive agency, or the
Secretary of a military department with respect to an
employee of his department, may administer -
(1) the oath of office required by section
3331 of this title, incident to entrance into the
executive branch; or
(2) any other oath required by law in con-
nection with employment in the executive
branch. |
(c) an oath authorized or required under the laws of
the United States may be administered by -
1. the Vice President; or
2. an individual authorized by local law to
administer oaths to the State, District, or terri-
tory or possession of the United States where
the oath is administered.
5 U.S.C. § 3331. Oath of office
An individual, except the President, elected or
appointed to an office of honor or profit in the civil
service or uniformed services, shall take the following
oath: “I, AB, do solemnly swear (or affirm) that I will
support and defend the Constitution of the United States
against all enemies, foreign and domestic; that I will bear
true faith and allegiance to the same; that I take this
1-7
obligation freely, without any mental reservation or pur-
pose of evasion; and that I will well and faithfully dis-
charge the duties of the office on which I am about to
enter. So help me God.” This section does not affect other
oaths required by law.
5 U.S.C. § 3332. Office affidavit; no consideration paid
for appointment
An officer, within 30 days after the effective date of
his appointment, shall file with the oath of office required
by section 3331 of this title an affidavit that neither he nor
anyone acting in his behalf has given, transferred, prom-
ised, or paid any consideration for or in the expectation
or hope of receiving assistance in securing the appoint-
ment.
5 U.S.C. § 5312. Positions at level I
Level I of the Executive Schedule applies to the fol-
lowing positions for which the annual rate of basic pay
shall be the rate determined with respect to such level
under chapter 11 of title 2, as adjusted by section 5318 of
this title:
1-8
Secretary of State.
Secretary of the Treasury.
Secretary of Defense.
Attorney General.
Secretary of the Interior.
Secretary of Agriculture.
Secretary of Commerce.
Secretary of Labor.
Secretary of Health and Human Services.
Secretary of Housing and Urban Develop-
ment.
Secretary of Transportation.
United States Trade Representative.
Secretary of Energy.
Secretary of Education.
Secretary of Veterans Affairs.
Director of the Office of Management and
Budget.
Director of National Drug Control Policy.
Commissioner of Social Security, Social Secu-
rity Administration.
faa pS intel ia
1-9
5 U.S.C. § 5507. Officer affidavit; condition to pay
An officer required by section 3332 of this title to file
an affidavit may not be paid until the affidavit has been
filed.
28 U.S.C. § 591. Applicability of provisions of this
chapter
(a) Preliminary investigation with respect to cer-
tain covered persons. - The Attorney General shall con-
duct a preliminary investigation in accordance with
section 592 whenever the Attorney General receives
information sufficient to constitute grounds to investigate
whether any person described in subsection (b) may have
violated any Federal criminal law other than a violation
classified as a Class B or C misdemeanor or an infraction.
(b) Persons to whom subsection (a) applies. - The
persons referred to in subsection (a) are -
(1) the President and Vice President;
(2) any individual serving in a position
listed in section 5312 of title 5;
(3) any individual working in the Execu-
tive Office of the President who is compensated
at a rate of pay at or above level Il of the
Executive Schedule under section 5313 of title 5;
(4) any Assistant Attorney General and
any individual working in the Department of
Justice who is compensated at a rate of pay at or
I-10
above level III of the Executive Schedule under
section 5314 of title 5;
(5) the Director of Central Intelligence, the
Deputy Director of Central Intelligence, and the
Commissioner of Internal Revenue;
(6) the chairman and treasurer of the prin-
cipal national campaign committee seeking the
election or reelection of the President, and any
officer of that committee exercising authority at
the national level, during the incumbency of the
President; and
(7) any individual who held an office or
position described in paragraph (1), (2), (3), (4),
or (5) for 1 year after leaving the office or posi-
tion.
[(8) Redesignated (6)]
(c) Preliminary investigation with respect to other
persons. —
(1) In general. - When the Attorney Gen-
eral determines that an investigation or prosecu-
tion of a person by the Department of Justice
may result in a personal, financial, or political
conflict of interest, the Attorney General may
conduct a preliminary investigation of such per-
son in accordance with section 592 if the Attor-
ney General receives information svfficient to
constitute grounds to investigate whether that
person may have violated Federal criminal law
other than a violation classified as a Class B or C
misdemeanor or an infraction.
(2) Members of Congress. - When the
Attorney General determines that it would be in
the public interest, the Attorney General may
I-11
conduct a preliminary investigation in accor-
dance with section 592 if the Attorney General
receives information sufficient to constitute
grounds to investigate whether a Member of
Congress may have violated any Federal crimi-
nal law other than a violation classified as a
Class B or C misdemeanor or an infraction.
(d) Examination of information to determine need
for preliminary investigation. —
(1) Factors to be considered. — In deter-
! mining under subsection (a) or (c) (or section
592(c)(2)) whether grounds to investigate exist,
. the Attorney General shall consider only -
. (A) the specificity of the information
received; and
(B) the credibility of the source of the
information.
/ (2) Time period for making determina-
tion. - The Attorney General shall determine
whether grounds to investigate exist not later
than 30 days after the information is first
received. If within that 30-day period the Attor-
ney General determines that the information is
not specific or is not from a credible source, then
the Attorney General shall close the matter. If
within that 30-day period the Attorney General
determines that the information is specific and
from a credible source, the Attorney General
3 shall, upon making that determination, com-
; mence a preliminary investigation with respect
to that information. If the Attorney General is
unable to determine, within that 30-day period,
whether the information is specific and from a
; credible source, the Attorney General shall, at
ih et ear ah i at Se ote a EM A HES
I-12
the end of that 30-day period, commence a pre-
liminary investigation with respect to that infor-
mation.
(e) Recusal of Attorney General -
(1) When recusal is required. - (A) If
information received under this chapter
involves the Attorney General, the next most
senior Official in the Department of Justice who
is not also recused shall perform the duties
assigned under this chapter to the Attorney
General.
(B) If information received under this
chapter involves a person with whom the Attor-
ney General has a personal or financial relation-
ship, the Attorney General shall recuse himself
or herself by designating the next most senior
official in the Department of Justice who is not
also recused to perform the duties assigned
under this chapter to the Attorney General.
(2) Requirements for recusal determina-
tion. — Before personally making any other
determination under this chapter with respect to
information received under this chapter, the
Attorney General shall determine under para-
graph (1)(B) whether recusal is necessary. The
Attorney General shall set forth this determina-
tion in writing, identify the facts considered by
the Attorney General, and set forth the reasons
for the recusal. The Attorney General shall file
this determination with any notification or
application submitted to the division of the
court under this chapter with respect to such
information.
(As amended Pub.L. 103-270, §§ 3(j), (k), 4 June 30, 1994,
108 Stat. 735, 736.)
I-13
28 U.S.C. § 592. Preliminary investigation and applica-
tion for appointment of an indepen-
dent counsel
(a) Conduct of preliminary investigation. -
(1) In general. —- A preliminary investiga-
tion 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 com-
menced, except that in the case of a preliminary
investigation commenced after a congressional
request under subsection (g), the Attorney Gen-
eral shall make such determination not later
than 90 days after the request is received. The
Attorney General shall promptly notify the divi-
sion of the court specified in section 593(a) of
the commencement of such preliminary investi-
gation and the date of such commencement.
(2) Limited authority of Attorney Gen-
eral. — (A) In conducting preliminary investiga-
tions under this chapter, the Attorney General
shall have no authority to convene grand juries,
plea bargain, grant immunity, or issue sub-
poenas.
(B)(i) The Attorney General shall not base
a determination under this chapter that informa-
tion 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
I-14
lacked the state of mind required for the viola-
tion of criminal law.
(ii) 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 determina-
tion 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 show-
ing 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 war-
ranted, 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 notifica-
tion shall contain a summary of the information
received and a summary of the results of the
preliminary investigation.
I-15
(c) Determination that further investigation is
warranted. —
(1) Application for appointment of inde-
pendent 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 com-
pletion of a preliminary investigation under
this chapter, determines that there are rea-
sonable grounds to believe that further
investigation is warranted; or
(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 noti-
fication with the division of the court under
subsection (b)(1).
In determining under this chapter whether rea-
sonable grounds exist to warrant further investi-
gation, the Attorney General shall comply with
the written or other established policies of the
Department of Justice with respect to the con-
duct of criminal investigations.
(2) Receipt of additional information. -
If, after submitting a notification under subsec-
tion (b)(1), the Attorney General receives addi-
tional information sufficient to constitute
grounds to investigate the matters to which such
notification related, the Attorney General shall -
(A) conduct such additional prelimi-
nary 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
I-16
(B) otherwise comply with the provi-
sions of this section with respect to such
additional preliminary investigation to the
same extent as any other preliminary inves-
tigation under this section.
(d) Contents of application. - Any application for
the appointment of an independent counsel under this
chapter shall contain sufficient information to assist the
division of the court in selecting an independent counsel
and in defining that independent counsel’s prosecutorial
jurisdiction so that the independent counsel has adequate
authority to fully investigate and prosecute the subject
matter and all matters related to that subject matter.
(e) Disclosure of information. — Except as other-
wise provided in this chapter or as is deemed necessary
for law enforcement purposes, no officer or employee of
the Department of Justice or an office of independent
counsel may, without leave of the division of the court,
disclose to any individual outside the Department of
Justice or such office any notification, application, or any
other document, materials, or memorandum supplied to
the division of the court under this chapter. Nothing in
this chapter shall be construed as authorizing the with-
holding of information from the Congress.
(f) Limitation on judicial review. -— The Attorney
General’s determination under this chapter to apply to
the division of the court for the appointment of an inde-
pendent counsel shall not be reviewable in any court.
(g) Congressional request. -
(1) By Judiciary Committee or members
thereof. - The Committee on the Judiciary of
i aerreinieemerseeieiniil
I-17
either House of the Congress, or a majority of
majority party members or a majority of all non-
majority party members of either such commit-
tee, may request in writing that the Attorney
General apply for the appointment of an inde-
pendent 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 congres-
sional request is made. If there is such a prelimi-
nary 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 docu-
ment, material, or memorandum shall be sup-
plied to the committee making the request, or to
I-18
the committee on which the persons making the
request serve. If no application for the appoint-
ment of an independent counsel is made to the
division of the court under this section pursuant
to such a preliminary investigation, the Attor-
ney General shall submit a report to that com-
mittee 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 docu-
ment, material, or memorandum supplied to a
committee under this subsection shall not be
revealed to any third party, except that the com-
mittee may, either on its own initiative or upon
the request of the Attorney General, make pub-
lic such portion or portions of such report, noti-
fication, application, document, material, or
memorandum as will not in the committee’s
judgment prejudice the rights of any individual.
28 U.S.C. § 593. Duties of the division of the court
(a)
Reference to division of the court. — The divi-
sion of the court to which this chapter refers is the
division established under section 49 of this title.
(b)
Appointment and jurisdiction of independent
counsel, -
(1) Authority. - Upon receipt of an appli-
cation under section 592(c), the division of the
1-19
court shall appoint an appropriate independent
counsel and shall define that independent coun-
sel’s prosecutorial jurisdiction.
(2) Qualifications of independent coun-
sel. — The division of the court shall appoint as
independent counsel an individual who has
appropriate experience and who will conduct
the investigation and any prosecution in a
prompt, responsible, and cost-effective manner.
The division of the court shall seek to appoint as
independent counsel an individual who will
serve to the extent necessary to complete the
investigation and any prosecution without
undue delay. The division of the court may not
appoint as an independent counsel any person
who holds any office of profit or trust under the
United States.
(3) Scope of prosecutorial jurisdiction. -
In defining the independent counsel's pros-
ecutorial jurisdiction, the division of the court
shall assure that the independent counsel has
adequate authority to fully investigate and pros-
ecute the subject matter with respect to which
the Attorney General has requested the appoint-
ment of the independent counsel, and all mat-
ters related to that subject matter. Such
jurisdiction shall also include the authority to
investigate and prosecute Federal crimes, other
than those classified as Class B or C misde-
meanors or infractions, that may arise out of the
investigation or prosecution of the matter with
respect to which the Attorney General’s request
was made, including perjury, obstruction of jus-
tice, destruction of evidence, and intimidation of
witnesses.
1-20
(4) Disclosure of identity and pros-
ecutorial jurisdiction. —- An independent coun-
sel’s identity and prosecutorial jurisdiction
(including any expansion under subsection (c))
may not be made public except upon the request
of the Attorney General or upon a determina-
tion of the division of the court that disclosure
of the identity and prosecutorial jurisdiction of
such independent counsel would be in the best
interests of justice. In any event, the identity
and prosecutorial jurisdiction of such indepen-
dent counsel shall be made public when any
indictment is returned, or any criminal informa-
tion is filed, pursuant to the independent coun-
sel’s investigation.
(c) Expansion of jurisdiction. -
(1) In general. - The division of the court,
upon the request of the Attorney General, may
expand the prosecutorial jurisdiction of an inde-
pendent counsel, and such expansion may be in
lieu of the appointment of another independent
counsel.
(2) Procedure for request by Independent
counsel. — (A) If the independent counsel dis-
covers or receives information about possible
violations of criminal law by persons as pro-
vided in section 591, which are not covered by
the prosecutorial jurisdiction of the independent
counsel, the independent counsel may submit
such information to the Attorney General. The
Attorney General shall then conduct a prelimi-
nary investigation of the information in accor-
dance with the provisions of section 592, except
that such preliminary investigation shall not
exceed 30 days from the date such information
is received. In making the determination
1-21
required by section 592, the Attorney General
shall give great weight to any recommendations
of the independent counsel.
(B) If the Attorney General determines,
after according great weight to the recommen-
dations of the independent counsel, that there
are no reasonable grounds to believe that fur-
ther 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 expand the jurisdiction of the inde-
pendent counsel or to appoint another indepen-
dent counsel with respect to the matters
involved.
(C) If -
(i) the Attorney General determines
that there are reasonable grounds to believe
that further investigation is warranted; or
(ii) the 30-day period referred to in
subparagraph (A) elapses without a noti-
fication to the division of the court that no
further investigation is warranted,
the division of the court shall expand the juris-
diction of the appropriate independent counsel
to include the matters involved or shall appoint
another independent counsel to investigate such
matters.
(d) Return for further explanation. - Upon receipt
of a notification under section 592 or subsection (c)(2)(B)
of this section from the Attorney General that there are
no reasonable grounds to believe that further investiga-
tion is warranted with respect to information received
under this chapter, the division of the court shall have no
authority to overrule this determination but may return
I-22
the matter to the Attorney General for further explana-
tion of the reasons for such determination.
(e) Vacancies. - If a vacancy in office arises by
reason of the resignation, death, or removal of an inde-
pendent counsel, the division of the court shall appoint
an independent counsel to complete the work of the
independent counsel whose resignation, death, or
removal caused the vacancy, except that in the case of a
vacancy arising by reason of the removal of an indepen-
dent counsel, the division of the court may appoint an
acting independent counsel to serve until any judicial
review of such removal is completed.
(f) Attorneys’ fees. -
(1) Award of fees. - Upon the request of
an individual who is the subject of an investiga-
tion conducted by an independent counsel pur-
suant to this chapter, the division of the court
may, if no indictment is brought against such
individual pursuant to that investigation, award
reimbursement for those reasonable attorneys’
fees incurred by that individual during that
investigation which would not have been
incurred but for the requirements of this chap-
ter. The division of the court shall notify the !
independent counsel who conducted the investi-
gation and Attorney General of any request for
attorneys’ fees under this subsection.
(2) Evaluation of fees. - The division of
the court shall direct such independent counsel
! So in original.
1-23
and the Attorney General to file a written eval-
uation of any request for attorneys’ fees under
this subsection, addressing -
(A) the sufficiency of the documenta-
tion;
(B) the need or justification for the
underlying item;
(C) whether the underlying item
would have been incurred but for the
requirements of this chapter; and
(D) the reasonableness of the amount
of money requested.
(g) Disclosure of information. - The division of the
court may, subject to section 594(h)(2), allow the dis-
closure of any notification, application, or any other doc-
ument, material, or memorandum supplied to the
division of the court under this chapter.
(h) Amicus curiae briefs. - When presented with
significant legal issues, the division of the court may
disclose sufficient information about the issues to permit
the filing of timiely amicus curiae briefs.
28 U.S.C. § 594. Authority and duties of an indepen-
dent counsel
(a) Authorities. - Notwithstanding any other provi-
sion of law, an independent counsel appointed under this
chapter shall have, with respect to all matters in such
1-24
independent counsel’s prosecutorial jurisdiction estab-
lished under this chapter, full power and independent
authority to exercise all investigative and prosecutorial
functions and powers of the Department of Justice, the
Attorney General, and any other officer or employee of
the Department of Justice, except that the Attorney Gen-
eral shall exercise direction or control as to those matters
that specifically require the Attorney General’s personal
action under section 2516 of title 18. Such investigative
and prosecutorial functions and powers shall include -
(1) conducting proceedings before grand
juries and other investigations;
(2) participating in court proceedings and
engaging in any litigation, including civil and
criminal matters, that such independent counsel
considers necessary;
(3) appealing any decision of a court in
any case or proceeding in which such indepen-
dent counsel participates in an official capacity;
(4) reviewing all documentary evidence
available from any source;
(5) determining whether to contest the
assertion of any testimonial privilege;
(6) receiving appropriate national security
clearances and, if necessary, contesting in court
(including, where appropriate, participating in
in camera proceedings) any claim of privilege or
attempt to withhold evidence on grounds of
national security;
(7) making applications to any Federal
court for a grant of immunity to any witness,
consistent with applicable statutory require-
ments, or for warrants, subpoenas, or other
1-25
court orders, and; for purposes of sections 6003,
6004, and 6005 of title 18, exercising the author-
ity vested in a United States attorney or the
Attorney General;
(8) inspecting, obtaining, or using the orig-
inal or a copy of any tax return, in accordance
with the applicable statutes and regulations,
and, for purposes of section 6103 of the Internal
Revenue Code of 1986 and the regulations
issued thereunder, exercising the powers vested
in a United States attorney or the Attorney Gen-
eral;
(9) initiating and conducting prosecutions
in any court of competent jurisdiction, framing
and signing indictments, filing informations,
and handling all aspects of any case, in the
name of the United States; and
(10) consulting with the United States
attorney for the district in which any violation
of law with respect to which the independent
counsel is appointed was alleged to have
occurred.
(b) Compensation. -
(1) In general. - An independent counsel
appointed under this chapter shall receive com-
pensation at the per diem rate equal to the
annual rate of basic pay payable for level IV of
the Executive Schedule under section 5315 of
title 5.
(2) Travel expenses. - Except as provided
in paragraph (3), an independer* counsel and
persons appointed under subsectiun (c) shall be
entitled to the payment of travel expenses as
provided by subchapter I of chapter 57 of title 5,
1-26
United States Code, including travel, per diem,
and subsistence expenses in accordance with
section 5703 of title 5.
(3) Travel to primary office. -
(A) In general. - After 1 year of ser-
vice under this chapter, an independent
counsel and persons appointed under sub-
section (c) shall not be entitled to the pay-
ment of travel, per diem, or subsistence
expenses under subchapter I of chapter 57
of title 5, United States Code, for the pur-
pose of commuting to or from the city in
which the primary office of the independent
counsel or person is located. The 1-year
period may be extended by 6 months if the
employee assigned duties under subsection
(1)(I)(A)(iii) certifies that the payment is in
the public interest to carry out the purposes
of this chapter.
(B) Relevant factors. - In making any
certification under this paragraph with
respect to travel and subsistence expenses
of an independent counsel or person
appointed under subsection (c), such
employee shall consider, among other rele-
vant factors -
(i) the cost to the Government of
reimbursing such travel and subsistence
expenses;
(ii) the period of time for which
the independent counsel anticipates
that the activities of the independent
counsel or person, as the case may be,
will continue;
I-27
(iii) the personal and financial
burdens on the independent counsel or
person, as the case may be, of relocating
so that such travel and subsistence
expenses would not be incurred; and
(iv) the burdens associated with
appointing a new independent counsel,
or appointing another person under
subsection (c), to replace the individual
involved who is unable or unwilling to
so relocate.
(c) Additional personnel. — For the purposes of
carrying out the duties of an office of independent coun-
sel, such independent counsel may appoint, fix the com-
pensation, and assign the duties of such employees as
such independent counsel considers necessary (including
investigators, attorneys, and part-time consultants). The
positions of all such employees are exempted from the
competitive service. Such employees shall be compen-
sated at levels not to exceed those payable for compara-
ble positions in the Office of United States Attorney for
the District of Columbia under sections 548 and 550, but
in no event shall any such employee be compensated at a
rate greater than the rate of basic pay payable for level
ES-4 of the Senior Executive Service Schedule under sec-
tion 5382 of title 5, as adjusted for the District of Colum-
bia under section 5304 of that title regardless of the
locality in which an employee is employed.
(d) Assistance of Department of Justice. -
(1) In carrying out functions. —- An inde-
pendent counsel may request assistance from
the Department of Justice in carrying out the
functions of the independent counsel, and the
I-28
Department of Justice shall provide that assis-
tance, which may include access to any records,
files, or other materials relevant to matters
within such independent counsel's prosecutorial
jurisdiction, and the use of the resources and
personnel necessary to perform such indepen-
dent counsel’s duties. At the request of an inde-
pendent counsel, prosecutors, administrative
personnel, and other employees of the Depart-
ment of Justice may be detailed to the staff of
the independent counsel.
(2) Payment of and reports on expendi-
tures of independent counsel. - The Depart-
ment of Justice shall pay all costs relating to the
establishment and operation of any office of
independent counsel. The Attorney General
shall submit to the Congress, not later than 30
days after the end of each fiscal year, a report on
amounts paid during that fiscal year for
expenses of investigations and prosecutions by
independent counsel. Each such report shall
include a statement of all payments made for
activities of independent counsel but may not
reveal the identity or prosecutorial jurisdiction
of any independent counsel which has not been
disclosed under section 593(b)(4).
(e) Referral of other matters to an independent
counsel. - An independent counsel may ask the Attorney
General or the division of the court to refer to the inde-
pendent counsel matters related to the independent coun-
sel’s prosecutorial jurisdiction, and the Attorney General
or the division of the court, as the case may be, may refer
such matters. If the Attorney General refers a matter to an
independent counsel on the Attorney General’s own ini-
tiative, the independent counsel may accept such referral
I-29
if the matter relates to the independent counsel’s pros-
ecutorial jurisdiction. If the Attorney General refers any
matter to the independent counsel pursuant to the inde-
pendent counsel’s request, or if the independent counsel
accepts a referral made by the Attorney General on the
Attorney General's own initiative, the independent coun-
sel shall so notify the division of the court.
(f) Compliance with policies of the Department of
Justice. -
(1) In general. —- An independent counsel
shall, except to the extent that to do so would be
inconsistent with the purposes of this chapter,
comply with the written or other established
policies of the Department of Justice respecting
enforcement of the criminal laws. To determine
these policies and policies under subsection
(1)(1)(B), the independent counsel shall, except
to the extent that doing so would be inconsistent
with the purposes of this chapter, consult with
the Department of Justice.
(2) National security. - An independent
counsel shall.comply with guidelines and pro-
cedures used by the Department in the handling
and use of classified material.
(g) Dismissal of matters. - The independent coun-
sel shall have full authority to dismiss matters within the
independent counsel’s prosecutorial jurisdiction without
conducting an investigation or at any subsequent time
before prosecution, if to do so would be consistent with
the written or other established policies of the Depart-
ment of Justice with respect to the enforcement of crimi-
nal laws.
1-30
(h) Reports by independent counsel. -
(1) Required reports. - An independent
counsel shall -
(A) file with the division of the court,
with respect to the 6-month period begin-
ning on the date of his or her appointment,
and with respect to each 6-month period
thereafter until the office of that indepen-
dent counsel terminates, a report which
identifies and explains major expenses, and
summarizes all other expenses, incurred by
that office during the 6-month period with
respect to which the report is filed, and
estimates future expenses of that office; and
(B) before the termination of the inde-
pendent counsel’s office under section
596(b), file a final report with the division of
the court, setting forth fully and completely
a description of the work of the indepen-
dent counsel, including the disposition of
all cases brought.
(2) Disclosure of information in reports. -
The division of the court may release to the
Congress, the public, or any appropriate person,
such portions of a report made under this sub-
section as the division of the court considers
appropriate. The division of the court shall
make such orders as are appropriate to protect
the rights of any individual named in such
report and to prevent undue interference with
any pending prosecution. The division of the
court may make any portion of a final report
filed under paragraph (1)(B) available to any
individual named in such report for the pur-
poses of receiving within a time limit set by the
I-31
division of the court any comments or factual
information that such individual may submit.
Such comments and factual information, in
whole or in part, may, in the discretion of the
division of the court, be included as an appen-
dix to such final report.
(i) Independence from Department of Justice. -
Each independent counsel appointed under this chapter,
and the persons appointed by that independent counsel
under subsection (c), are separate from and independent
of the Department of Justice for purposes of sections 202
through 209 of title 18.
(j) Standards of conduct applicable to indepen-
dent counsel, persons serving in the office of an inde-
pendent counsel, and their law firms. -
(1) Restrictions on employment while
independent counsel and appoiré*es are serv-
ing. ~ (A) During the period in which an inde-
pendent counsel is serving under this chapter -
(i) such independent counsel, and
(ii) any person associated with a firm
with which such independent counsel is
associated,
may not represent in any matter any person
involved in any investigation or prosecution
under this chapter.
(B) During the period in which any person
appointed by an independent counsel under
subsection (c) is serving in the office of indepen-
dent counsel, such person may not represent in
any matter any person involved in any investi-
gation or prosecution under this chapter.
1-32
(2) Post employment restrictions on inde-
pendent counsel and appointees. - (A) Each
independent counsel and each person appointed
by that independent counsel under subsection
(c) may not, for 3 years following the termina-
tion of the service under this chapter of that
independent counsel or appointed person, as
the case may be, represent any person in any
matter if that individual was the subject of an
investigation or prosecution under this chapter
that was conducted by that independent coun-
sel.
(B) Each independent counsel and each
person appointed by that independent counsel
under subsection (c) may not, for 1 year follow-
ing the termination of the service under this
chapter of that independent counsel or appoin-
ted person, as the case may be, represent any
person in any matter involving any investiga-
tion or prosecution under this chapter.
(3) One-year ban on representation by
members of firms of independent counsel. -
Any person who is associated with a firm with
which an independent counsel is associated or
becomes associated after termination of the ser-
vice of that independent counsel under this
chapter may not, for 1 year following such ter-
mination, represent any person in any matter
involving any investigation or prosecution
under this chapter.
(4) Definitions. - For purposes of this
subsection -
(A) the term “firm” means a law firm
whether organized as a partnership or cor-
poration; and
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(B) a person is “associated” with a
firm if that person is an officer, director,
partner, or other member or employee of
that firm.
(5) Enforcement. - The Attorney General
and the Director of the Office of Government
Ethics have authority to enforce compliance
with this subsection.
(k) Custody of records of an independent counsel. -
(1) Transfer of records. - Upon termina-
tion of the office of an independent counsel, that
independent counsel shall transfer to the
Archivist of the United States all records which
have been created or received by that office.
Before this transfer, the independent counsel
shall clearly identify which of these records are
subject to rule 6(e) of the Federal Rules of Crimi-
nal Procedure as grand jury materials and which
of these records have been classified as national
security information. Any records which were
compiled by an independent counsel and, upon
termination of the independent counsel's office,
were stored with the division of the court or
elsewhere before the enactment of the Indepen-
dent Counsel Reauthorization Act of 1987, shall
also be transferred to the Archivist of the United
States by the division of the court or the person
in possession of such records.
(2) Maintenance, use, and disposal of
records. — Records transferred to the Archivist
under this chapter shall be maintained, used,
and disposed of in accordance with chapters 21,
29, and 33 of title 44.
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(3) Access to records. -
(A) In general. — Subject to paragraph
(4), access to the records transferred to the
Archivist under this chapter shall be gov-
erned by section 552 of title 5.
(B) Access by Department of Justice. -
The Archivist shall, upon written applica-
tion by the Attorney General, disclose any
such records to the Department of Justice
for purposes of an ongoing law enforcement
investigation or court proceeding, except
that, in the case of grand jury materials,
such records shall be so disclosed only by
order of the court of jurisdiction under rule
6(e) of the Federal Rules of Criminal Pro-
cedure.
(C) Exception. - Notwithstanding any
restriction on access imposed by law, the
Archivist and persons employed by the
National Archives and Records Administra-
tion who are engaged in the performance of
normal archival work shall be permitted
access to the records transferred to the
Archivist under this chapter.
(4) Records provided by Congress. -
Records of an investigation conducted by a com-
mittee of the House of Representatives or the
Senate which are provided to an independent
counsel to assist in an investigation or prosecu-
tion conducted by that independent counsel -
(A) shall be maintained as a separate
body of records within the records of the
independent counsel; and
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(B) shall, after the records have been
transferred to the Archivist under this chap-
ter, be made available, except as provided in
paragraph (3)(B) and (C), in accordance
with the rules governing release of the
records of the House of Congress that pro-
vided the records to the independent coun-
sel.
Subparagraph (B) shall not apply to those
records which have been surrendered pursuant
to grand jury or court proceedings.
(1) Cost controls and administrative support.
(1) Cost controls. -
(A) In general. - An independent
counsel shall —
(i) conduct all activi
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