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OFFICE OF INDEPENDENT COUNSEL

Questions

1. How does somebody get to be an Independent Counsel? Is the job political--meaning do Democratic Independent Counsels investigate allegations against Republicans and vice-versa?

A special division of the United States Court of Appeals for the District of Columbia chooses each Independent Counsel. This Special Division is made up of three circuit court judges appointed for two-year terms by the Chief Justice of the Supreme Court. One of the judges must be a judge of the U.S. Court of Appeals for the District of Columbia, and no two of the judges named may be from the same circuit.

The Independent Counsel statute requires the Special Division to appoint a person who has Aappropriate experience and who will conduct the investigation and any prosecution in a prompt, responsible, and cost-effective manner . . . [and] who will serve to the extent necessary to complete the investigation and prosecution without undue delay.@

The actual selection process is unclear, even to those who have become Independent Counsels. We do know that the Special Division keeps a Atalent book,@ listing individuals who might make an appropriate independent counsel. Professional colleagues of the Special Division judges also may recommend possible candidates.

Political affiliation of the candidate does not play a part in the selection of an Independent Counsel. In some historical cases, when the President named a special prosecutor to investigate allegations of corruption, it was desirable to choose someone from the opposition party to ensure the appearance of independence from the president.

Under the Independent Counsel Act, the job of the independent counsel is not political and party affiliation is not a factor in the process.

No. Each Office of Independent Counsel is appointed separately, housed separately, maintains separate staffs, and has its own budget. The Administrative Office of the United States Courts administers the budgets of each independent counsel=s office.

3. Why does an independent counsel investigation take so long? Doesn=t the Independent Counsel want to stay in the job as long as possible in order to make a lot of money and become famous?

An independent counsel investigation may take a long time for a variety of reasons. First, an independent counsel has to build an office from Aground zero.@ When the Special Division names the Independent Counsel, he does not have an office, staff, or equipment. On average, it takes eight to 12 months to build a fully-integrated, operationally efficient office. Second, the type of crimes usually alleged, white collar and corruption, are difficult to investigate and prosecute. They involve complex paper trails and scores of witnesses. Third, various defense tactics, such as jurisdictional challenges, and witnesses who, on average, lie more to an independent counsel than in a Justice Department investigation can delay the trial and appellate phases of the case. Finally, federal law requires the independent counsel to remain open to write a final report, something no other federal prosecutor must do, and to settle attorneys= fees for Asubjects@ of the investigation. These additional tasks can keep open an office for an additional year.

The Independent Counsel does not undertake the job for the money. Independent Counsels may maintain private practices that likely are much more lucrative. Independent Counsels are government attorneys. They are limited to billing 40 hours a week, although we work many more hours, at a top salary of $53 an hour. Nor do most become famous. It is the atypical high-profile investigation that gets the attention of Ken Starr=s investigation of President Clinton or Lawrence Walsh=s investigation of Iran-Contra arms sales.

4. Who decides what the Independent Counsel investigates? Does the Independent Counsel have blanket authority to investigate whatever he or she desires?

The Special Division determines the jurisdiction of the Independent Counsel. When the Attorney General has completed a preliminary investigation, and has found specific and credible evidence of a crime committed by an official covered by the Independent Counsel Act, the Attorney General applies to the Special Division asking it to name an Independent Counsel. The Attorney General attaches to the application a proposed jurisdictional grant which includes a broad outline identifying the subject of the investigation and the crime(s) under investigation.

The Act provides that the Independent Counsel has the same criminal and civil authority as the Attorney General and federal prosecutors. The Independent Counsel can investigate people and crimes as outlined in the Special Division=s jurisdictional mandate. If, during the investigation, the Independent Counsel discovers crimes committed by another covered official, he must submit the information to the Attorney General, who in turn, will conduct a preliminary investigation giving Agreat weight@ to the independent counsel=s recommendations. The Attorney General may decide, without going to the Special Division, to expand the Independent Counsel=s jurisdiction to include that person. If the Attorney General determines that an expansion is not warranted, that decision is not reviewable. But, if the Independent Counsel finds matters related to subjects within his jurisdiction, he can apply to either the Attorney General or the Special Division to have the matter referred to him. In either case, the Independent Counsel must seek approval of the Attorney General or the Special Division to alter his jurisdiction.

Each Independent Counsel sets up an office from scratch. Start-up expenses include renting office space (no government property is set aside for Independent Counsels), and assembling office equipment and supplies.

The cost of an investigation also is tied to how long it takes to investigate and bring cases to trial. The more an investigation is thwarted by witness and subject obstructions and delaying tactics, as well as, trial delays and appeals, the more it costs. Also, the more issues an Independent Counsel must investigate, the more the investigation will cost. Because many investigations involve the conduct of multiple individuals and companies in several different cities, it often becomes necessary to set up offices, in addition to a Washington, D.C. office, which, in turn, drive up expenses.

6. How do Independent Counsels create their staffs? Can anyone work for an Independent Counsel?

In some cases, an Independent Counsel will hire attorneys with whom he or she has worked in the past. In some cases, the decision of whom to hire depends on a lawyer=s expertise in a particular area of law, such as white-collar, corruption, money laundering, or securities. But the experience may range from career, senior prosecutors to recent law school graduates.

Investigating agents are detailed from such law enforcement agencies as the FBI, Offices of Inspector General (in our case the Department of Agriculture), the U.S. Customs Service and the IRS. In particular, the Independent Counsel statute provides (28 U.S.C. '594(d)) that the Department of Justice Ashall provide@ the assistance, including personnel, to enable the Independent Counsel to discharge his duties. The Securities and Exchange Commission=s Division of Enforcement also detailed a lawyer and a forensic accountant to this office because of public company issues that arose.

Support staff usually has government experience, and many have experience in other Independent Counsel offices.

7. How do you assemble your evidence for trial? How does the grand jury work? Must a person testify before the grand jury?

As with any federal prosecutor, assembling evidence for trial is a painstaking operation. People who know and/or work with the target of the investigation are identified and interviewed, often several times, by agents and attorneys. Public and non-public documents are subject to collection, cataloguing, and examination. The records may include: bank and phone records, campaign filings, public speeches, financial disclosure forms, schedules, office memoranda, and photographs. The grand jury issues subpoenas for the non-public documents. Once the prosecutor believes he has gathered enough evidence, he may propose an indictment to the grand jury.

The grand jury is composed of 23 citizens, all registered voters, over the age of 18. The grand jury conducts its proceedings in secret, listening to the evidence presented by the prosecutor. The evidence includes witness testimony, agent summaries of evidence, and physical evidence. The grand jury=s principal function is to decide whether the prosecutor has enough credible evidence to show that a crime was committed by the target of the investigation. At least 12 grand jurors must decide in favor of indicting a target of the investigation before the case can go to arraignment, motions and trial. Throughout the process, the United States Constitution provides fundamental safeguards to protect the rights of all witnesses, not just the accused.

In addition to returning indictments, the grand jury is an investigative body with the power to compel witness testimony, document production, and the production of other physical evidence.

If a person is subpoenaed to testify before the grand jury and produce documents or other physical evidence, he must do so or risk being charged with contempt of court. A witness, once he appears before the grand jury, may invoke a Fifth Amendment privilege against self-incrimination. The prosecutor must then decide whether to grant immunity to the witness (see question 8) or proceed without the witness= testimony. A witness who invokes the Fifth Amendment privilege tells the grand jury that he cannot answer the question without giving an incriminating response. A company, however, has no Fifth Amendment privilege and must turn over records demanded by the grand jury.

8. Why do Independent Counsels give immunity to some people? What does immunity mean?

In order to elicit information from a witness who may have committed a crime or been involved in criminal activity, but who is not the prime target of the investigation, it is sometimes necessary for a prosecutor to grant immunity. By accepting the grant of immunity, the witness agrees that anything the witness may testify to that may incriminate the witness in a crime will not be used in a future case against that witness. Once a witness agrees to the immunity deal, he must answer all questions or risk being charged with contempt of court. However, immunity does not protect a witness if he lies to the grand jury.

9. Is there a difference between an Independent Counsel and a Special Prosecutor?

Yes, but the difference is slight. Prior to 1978, the President or Attorney General would appoint a Special Prosecutor to investigate high-level government officials. In 1978, Congress passed the Ethics in Government Act to create the current mechanism for appointing special prosecutors. When Congress reauthorized the law in 1983, it changed the name of the position from ASpecial Prosecutor@ to AIndependent Counsel.@ There has been one other ASpecial Prosecutor@ since 1983. In January 1994 the Attorney General appointed Robert Fiske to investigate Whitewater. At the time, the Independent Counsel statute had lapsed. Kenneth Starr replaced Mr. Fiske when Congress reauthorized the Independent Counsel law six months later.

The following are the addresses, telephone, and fax numbers of the current Independent Counsels.