House of Delegates
1999 Midyear Meeting Recommendations

REPORT TO THE HOUSE OF DELEGATES
RECOMMENDATION

RESOLVED, that the American Bar Association opposes reauthorization of the Independent Counsel provisions of the Ethics in Government Act (hereinafter called "Independent Counsel Act") in any form.

FURTHER RESOLVED, That if Congress should determine that there is a need for reauthorization of the Independent Counsel Act, that reauthorization should adhere to the following principles:

A. All persons subject to the operation of the Independent Counsel Act should receive the same treatment as if the matter were being handled by the Department of Justice.

B. The operation of the Independent Counsel Act should be mandatory in regard to the President, the Vice-President and the Attorney General. Although the Attorney General should be able to seek appointment of an Independent Counsel in regard to any other currently covered person, the decision to seek such an appointment should be left to the discretion of the Attorney General.

C. When the Attorney General requests the appointment of an Independent Counsel, the Attorney General should have the role of recommending to the Special Division of the Court appropriate candidates to serve in that position. Any Independent Counsel should possess the kind of broad experience in criminal justice matters that one would expect of an Attorney General or other high official in the Department of Justice.

D. The decision to seek the appointment of an Independent Counsel should be based on a determination that, given the nature of the alleged criminal activity and the quality of the evidence, the Department of Justice would decide there was reasonable cause to pursue the matter if the subject of the investigation were not a person covered by the provisions of the Independent Counsel Act.

E. There should be no arbitrary time frames imposed upon the Attorney General, and there should be no provision requiring the Attorney General to respond to Congressional demands or requests for appointment of an Independent Counsel.

F. The Independent Counsel should make no public disclosure, other than by formal charge, of the decision to begin or to end an investigation, unless the Special Division authorizes a public disclosure. The Independent Counsel should be required neither to continue an investigation beyond where a typical criminal investigation would extend in order to prepare and file a report, nor to file any report with the Special Division upon the completion of an investigation. The Independent Counsel should be permitted to file a report with the Special Division when the Independent Counsel believes such a report is necessary to serve the interests of justice. The Special Division should be required to deliver the final report to the Archivist of the United States who will make the report public after 50 years. The Special Division should be permitted to disclose any portion of the report at an earlier time upon a determination that disclosure is required in the interests of justice. In this instance, the Special Division should be permitted to make any portion of a report available to any individual named in the report for the purpose of receiving comment and factual information, all of which shall be included in the report, but only the Special Division should be permitted to disclose the contents of the report or any response to it.

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If you would like a copy of the full report, contact Bridgette S. Williams
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