Recommendation 26 The Commission recommends the strengthening of administrative debarment A. Present Law Debarment is presently available as a remedy for a violation of 18 U.S.C. § 207. Under 18 U.S.C. § 207(j), if the head of an agency determines, after notice and an opportunity for a hearing, that a former employee of that agency violated the postemployment restrictions in §§ 207(a), (b), or (c), the agency head may prohibit the employee from making any communication or formal or informal appearance on behalf of any other person, before that agency, for up to five years. Such an action is subject to judicial review in the district court. Only the individual's former employing agency can institute the debarment action. Thus, if a matter is of concern to two agencies in the executive branch, and a former employee of agency A has been personally and substantially involved and switches sides and improperly represents a client before agency B, only agency A can bring the debarment action, and it could only order debarment as to its own programs, not those of agency B. There is no provision in § 207 that provides an agency with authority to compel the production of books and records or the appearance of witnesses. Consequently, agencies are often not able to obtain the evidence they need to determine if debarment is appropriate. B. Considerations The Commission recommends that administrative debarment be available as an enforcement mechanism both to the agency for which a former government employee worked and the agency to which the prohibited representation is made. Extending debarment to the agency to which the representation is made is appropriate because generally that agency will be in the best position to learn of the representation and can take swift action to halt it. Some agencies may not care if a former employee makes a representation to another agency or at least may not be willing to go to the time and expense of conducting a debarment proceeding. In addition, to assist in gathering the facts necessary to ascertain whether debarment is proper, subpoena authority should be made available to an agency in connection with such a proceeding. The Commission notes that the Department of Justice has long advocated that subpoena authority be made available as an aid in administrative bar determinations. The Office of Government Ethics has also supported subpoena authority. The Commission agrees with these suggestions. Debarment is an appropriate remedy for violations of 18 U.S.C. § 207, but has not been used as frequently as it might have been. In our view, subpoena authority will help agencies gather the information needed to determine if the facts warrant debarment. The Commission recommends, however, that enforcement of a subpoena be made the responsibility of the Department of Justice rather than the agency conducting the debarment proceeding. This will ensure uniformity in the use of subpoenas and ensure against overly broad subpoenas. Moreover, the Justice Department will normally want to be consulted before a subpoena is issued to ensure that the administrative debarment proceeding does not impair any criminal investigation that might be ongoing as a result of the same violation. C. Alternatives Considered The Commission considered recommending administrative debarment for violations of 18 U.S.C. §§ 203, 205, and 208, but concluded that debarment was not appropriate for these offenses. These sections apply to current government employees and the Commission felt that normal agency disciplinary rules were sufficient administrative sanctions for their violation. While the Office of Government Ethics recommended that administrative debarment could be applied in situations where 18 U.S.C. §§ 203 and 205 were violated and the employee subsequently left the government, this would have allowed debarment for an action taken in the distant past. We did not think that administrative debarment would be a productive course of action in such a case. The Commission also considered extending administrative debarment to the entire company or firm for which the former employee now works. Barring the firm or company from appearing before the agency on the particular matter is somewhat appealing, but the harm proscribed by 18 U.S.C. § 207 is personal representation. It seemed to us unfair to penalize an entire firm or company because one employee or partner violated the law. We also note that administrative debarment of an entire law firm would go beyond the spirit of bar association rules. For example, ABA Model Rules of Professional Conduct, Rule 1.11, prohibits a former government attorney from representing a private client in a matter in which the attorney has personally and substantially participated while in government service. The rule, however, allows other attorneys in the firm to undertake the representation if the disqualified lawyer is screened from participating in the matter and from sharing in any fee generated and written notice is given to the former government employee's agency. Recommendation 27 Assuming the continued use of an Independent Counsel mechanism, the A. Present Law Title VI of the Ethics in Government Act, 28 U.S.C. §§ 591-599, allows for the appointment of an Independent Counsel to investigate and, if appropriate, prosecute certain high ranking officials of the executive branch for violations of federal criminal law, other than a Class B or C misdemeanor or an infraction. No comparable statute authorizes an Independent Counsel in either the legislative or judicial branch. As originally enacted in 1978, Title VI listed six categories of executive branch officials who could be investigated by the Independent Counsel. They included the President and Vice President; all Executive Level I positions (e.g., the Cabinet); positions in the Executive Office of the President paid at level IV of the Executive Schedule; Justice Department officials paid at level III of the Executive Schedule and all Assistant Attorneys General; the Director and Deputy Director of the Central Intelligence Agency; the Commissioner of the Internal Revenue Service; "holdover" officials when the preceding President was of the same political party as the incumbent President; and any officer of the principal national campaign committee seeking the election or reelection of the President. See Pub. L. No. 95-521, § 601, 92 Stat. 1824, 1868. In 1983 and 1987, the list of categories, now codified at 28 U.S.C. § 591(b), was further amended in relatively inconsequential ways. For example, the covered positions in the Executive Office of the President were narrowed to include only those paid at or above Executive Level II rather than Level IV. In addition, the coverage of campaign officials was altered to include the chairman and treasurer of the principal national campaign committee and any other officer of that committee exercising authority at the national level, during the incumbency of the President. B. Considerations The Independent Counsel device was created to counter the perceived conflict of interest that arises when the President is asked to investigate his own senior appointees. Congress feared that the Department of Justice would be handicapped in carrying out an investigation of the President, his close associates, and other high-level executive branch officials. Along the same lines, there was concern that a President might be less than diligent in pursuing a criminal investigation of his close associates if the outcome could affect his political future. Elements of this rationale remain relevant in considering the extension of the Independent Counsel statute to Congress. On the one hand, the conflict of interest that theoretically exists in the executive branch -- between friendship and duty -- does not arise when the Department of Justice is investigating a Member of Congress. And, over the years, there have been numerous examples of successful Department of Justice prosecutions of Members of Congress. - On the other hand, Members of Congress and particularly officials in the legislative leadership and those on certain committees -- can wield great power including a substantial influence on executive branch functions. Executive branch investigations of such individuals are inherently awkward, and there is at least the prospect that intensive investigations may be discouraged by the risk of offending the target of the investigation. Concern about the backlash from the target of an investigation could therefore create a conflict of interest in the Administration analogous to the conflict that could be caused by investigating itself.12 Another facet to the rationale for applying the Independent Counsel statute to Congress relates to the perception that the legislative branch has often been perceived as reluctant to investigate or impose meaningful sanctions on a peer. Close working fraternal relationships among senior officials can undermine the objectivity of investigations and disciplinary proceedings. Extending the Independent Counsel mechanism to Congress could heighten the motivation of the Congress to police itself diligently and could strengthen public confidence in the integrity of the legislative branch. Without taking a position as to whether the Independent Counsel device should be continued, the Commission observes that if it is continued, it should be extended to cover the legislative branch. The availability of the Independent Counsel device would go far to eliminating the suspicion that enforcement in one branch is less effective than in the other. The Commission believes that the jurisdiction of the Independent Counsel in each branch should cover all Members of Congress as well as those presently covered in the executive branch. On the other hand, a strong case can be made that the Independent Counsel device should be used sparingly, since it entails substantial expense and administrative burdens on the federal government, to say nothing of supplanting the traditional duties of the Department of Justice. 12Even within the executive branch, however, the theoretical conflict is easily overstated. There, unlike the other two branches, the President has no peers, all employees of the executive branch being his subordinates. When the Attorney General investigates and prosecutes, he is exercising Article II power of the President. We are not making any recommendation, however, about the continued need for an Independent Counsel statute. Our short tenure prevented us from addressing this issue with the degree of depth that it warrants. In view of the President's direction to us, however, that we work toward making ethical standards equitable across the three branches, we took up the narrower question of what the scope of an Independent Counsel statute should be, if one existed. 112 If a more limited role is deemed appropriate, the list of covered positions in both the executive branch and the legislative branch could be narrowed; perhaps jurisdiction could be confined to the highest officials of each branch, such as the leadership in each House of Congress and the Cabinet and senior staff of the Executive Office of the President. H.R. 5043 and the pending H.R. 9 contain a definition of the legislative leadership for purposes of crafting the post-employment restrictions. These definitions, while perhaps too all-inclusive, are useful for discussion purposes. In either event, Congress should make the final determination on the positions to be covered, and all other officials of the two branches would be subject to investigation and prosecution by the Department of Justice. C. Alternatives Considered The Commission considered whether to recommend use of the Independent Counsel device in the judicial branch. Since significant disciplinary problems have been rare and the enforcement machinery effective, the Commission concluded that such action is unwarranted. One Commission member, who favored the creation of an independent regulatory agency overseeing ethics in all three branches of government (see Recommendation 18, Alternatives Considered), thought that such an agency would eliminate any need for a separate Independent Counsel mechanism. |