Thompson Plan to Give Attorney General Authority to Appoint Special Counsel Introduced by Majority Leader

WASHINGTON — Senate Governmental Affairs Committee Chairman Fred Thompson (R-TN) today announced that his legislation to give the attorney general the discretion to appoint a special counsel was granted expedited consideration by the Senate. Under a procedure employed by Senate Majority Leader Trent Lott (R-MS) last evening, the legislation, S. 1427, has been placed directly on the Senate calendar without requiring it to go through committee.

?Repeated attempts to refine the Independent Counsel Act have failed,? Senator Thompson said. ?The responsibility and the accountability for appointing special counsels to investigate wrongdoing at the highest levels of government belong with the attorney general. This legislation will do just that and help to restore public confidence in the process.?

The Thompson bill would impose more accountability on the attorney general, the Senator noted. ?The current attorney general has demonstrated that under the recently expired Independent Counsel statute, it is possible to rely on legal technicalities to escape the statute?s intent. My bill would place a greater burden on the attorney general to act responsibly or be held politically accountable and subject to congressional oversight,? Senator Thompson said.

Under Thompson?s proposal, the special counsel would answer to the attorney general, who would determine the jurisdiction for the special counsel?s investigation. A person subject to the special counsel?s investigation would be unable to challenge that jurisdiction in court.

Thompson said the operation of the special counsel, including the standard for his or her removal, regular reporting requirements to the attorney general, and other administrative matters, would be established through regulations that the attorney general would promulgate within 60 days of the bill?s passage. The regulations would not take effect unless Congress enacted a law to approve them within 60 days after submission. If Congress did not approve them, the attorney general would be required to submit new ones to the Congress. The regulations adopted could not be changed without Congress passing a new law confirming them.

Thompson noted that while the attorney general has already promulgated regulations regarding the appointment of special counsels, they fall short in two general areas. First, the regulations permit appointment of a special counsel only when a two-part test has been satisfied — the investigation ?must present a conflict of interest for the Department or other extraordinary circumstances,? and such an appointment ?must be in the public interest.? Thompson said that under this test, the regulations could become a barrier to the appointment of a special counsel.

Secondly, under the promulgated regulations the special counsel is afforded less independence than prior special counsel have been afforded. For instance, the special counsel is to answer to the attorney general for any investigative or prosecutorial step, and the attorney general may direct that such a step not be pursued. Indictments sought by the special counsel could be stopped, as could enforcement of subpoenas. And appeals of adverse decisions would, for the first time, require the approval of the solicitor general, a political appointee in the department.


– Under the legislation, S. 1427, the attorney general would be granted complete discretion to appoint a special counsel when she determines that such appointment is in ?the public interest.?
– The only restriction on such an appointment provided in the amendment is that such special counsel cannot be an employee of the federal government at the time of their selection. The individual would be appointed by the attorney general. (This represents a departure from the Independent Counsel Act, where a three judge panel selected the person to serve as an independent counsel.)
– The legislation is silent with regard to reasonable grounds for an investigation, time frame to make a decision regarding appointment, and default requirements if no decision is made.
– There is no list of covered persons; the attorney general may select a special counsel to investigate anyone, so long as she deems it to be in the public interest.
– The bill requires the attorney general, within 60 days of passage of the legislation, to promulgate regulations relating to the operation and removal of a special counsel. Such regulations would not take effect unless approved by Congress within 60 days after submission, followed by presidential signature. The bill includes provisions for expedited Congressional consideration of the proposed regulations, including a provision that such regulations would not be subject to amendment. If disapproved by either House, the attorney general would be required to submit new regulations for approval.
– The attorney general, however, would have authority to promulgate regulations without the need for Congressional approval regarding the appointment of a particular independent counsel and the investigative or prosecutorial jurisdiction of a special counsel.
– The legislation repeals any regulations governing special counsel investigations that were issued by the attorney general following the expiration of the Independent Counsel Act. Upon enactment of the legislation, the attorney general would be precluded from issuing new regulations governing special counsel except pursuant to the Special Counsel Act.