Special Counsel and Permanent Indefinite Appropriation, B-302582, September 30, 2004

B-302582 Sep 30, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Permanent indefinite appropriation established to "pay all necessary expenses of investigations and prosecutions by independent counsels appointed pursuant to the provisions of 28 U.S.C. 591 et seq. or other law" is available to fund the expense of a United States Attorney appointed Special Counsel who possesses all the authority of the Attorney General to investigate alleged unauthorized disclosure of CIA employee's identity since the appropriation does not require the appointment of person from outside the government to serve as independent counsel. Further, regulation stating that special counsel shall be selected from outside the government does not have the force and effect of law and serve as a substantive limitation of the Attorney General's (or Acting Attorney General's) authority and may be waived. View Decision B-302582, Special Counsel and Permanent Indefinite Appropriation, September 30, 2004 B-302582 September 30, 2004 The Honorable Ted Stevens Chairman Committee on Appropriations The Honorable Robert C. Byrd Ranking Minority Member Committee on Appropriations United States Senate The Honorable C.W. Bill Young Chairman Committee on Appropriations The Honorable David Obey Ranking Minority Member Committee on Appropriations House of Representatives Subject: Special Counsel and Permanent Indefinite Appropriation The Government Accountability Office (GAO) is required to audit twice a year the expenditures by independent counsels and certain special counsels paid from the permanent indefinite appropriation. [1] In the course of auditing independent counsel expenditures for the period ending March 31, 2004, we learned that the Department of Justice was using the permanent indefinite appropriation to pay the expenses of the investigation by Special Counsel Patrick J. Fitzgerald. Mr. Fitzgerald continued to perform his duties as a U.S. Attorney after his appointment as Special Counsel. This is the first time that the expenses of an investigation by a United States Attorney appointed to serve as Special Counsel who continues to serve as a United States Attorney have been paid from the permanent indefinite appropriation. In addition, Department of Justice regulations at 28 C.F.R. Part 600 (2003) provide that Special Counsels shall be selected from outside the government. Given our responsibility to audit the fund, the use of the account to finance Special Counsel Fitzgerald's activities, and the provisions of 28 C.F.R. Part 600 (2003), we initiated inquiries with the Department of Justice to assure ourselves of the availability of this account to defray his expenses. [2] In considering this matter, we requested and received the written views of the Department of Justice. We also met with officials of the Department to discuss their views and obtained additional comments and information. Finally, we reviewed the laws and their legislative histories, regulations, court decisions, and past practices of the Department of Justice, as they relate to this matter. For the reasons discussed below, we do not object to the use of the permanent indefinite appropriation to fund Special Counsel Fitzgerald's expenses. Unlike the expired independent counsel law, the permanent indefinite appropriation does not require that a Special Counsel be appointed from outside the government. The Department, in appointing Special Counsel Fitzgerald under "other law", has afforded him independence by delegating all of the Attorney General's authority with respect to the investigation and instructing him to exercise that authority independent of the control of any officer of the Department. Finally, the Part 600 regulations are not substantive and may be waived by the Department. Background On December 30, 2003, Deputy Attorney General James B. Comey, acting in his capacity as Acting Attorney General, appointed Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, as Special Counsel to investigate the alleged unauthorized disclosure of a CIA employee's identity. Special Counsel Fitzgerald's delegation reads as follows: "By the authority vested in the Attorney General by law, including 28 U.S.C. 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department." [3] In February 2004, Acting Attorney General Comey clarified Special Counsel Fitzgerald's delegation of authority to state that the authority previously delegated to him is plenary.