Computation of 90-Day Period for Preliminary Investigation Under the Special Prosecutor Act ( 1981 )

Computation of 90-Day Period for Preliminary Investigation
Under the Special Prosecutor Act
The 90-day period for the Attorney General’s preliminary investigation under the Special
Prosecutor provisions of the Ethics in Government A ct should be computed from the
day when the specific information is effectively received by the Department o f Justice.
In this case, the 90-day period began to run when the Attorney General himself was
apprised of the allegations against the Secretary o f Labor, and ordered the preliminary
investigation commenced.
December 21, 1981
MEMORANDUM OPINION FOR
THE ASSOCIATE ATTORNEY GENERAL
You have asked for the opinion of this Office concerning the timing
of the commencement of the 90-day period for the Attorney General’s
preliminary investigation under the Special Prosecutor provisions of the
Ethics in Government Act of 1978. 28 U.S.C. §§ 591-598 (Supp. Ill
1979). More particularly, you have asked whether the 90-day period
commences at the moment that the first Department of Justice em­
ployee receives specific information that an official covered by the
statute has committed a crime, even if the significance of that informa­
tion relative to the Special Prosecutor provisions is not appreciated by
the individual receiving it, the information is not reported to the A ttor­
ney General, or if the preliminary investigation process has not been
initiated until a substantial period of time has elapsed.
You have asked this question in connection with allegations regard­
ing the Secretary of Labor that were received by an Organized Crime
and Racketeering Strike Force attorney and reported to a Strike Force
Chief in New York sometime in September 1981. The information was
not. reported to the Criminal Division of the Department of Justice in
Washington and to the Attorney General until December 1981, when a
preliminary investigation under the Special Prosecutor provisions was
immediately commenced.
For the reasons discussed below, we conclude that under the circum­
stances presented here, the 90-day period should be computed from the
day when the information was effectively received by the Department
in Washington and the preliminary investigation actually began.
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Discussion
The Special Prosecutor provisions of the Ethics in Government Act
provide in pertinent part as follows:
(a) The Attorney General, upon receiving specific in­
formation that any of the persons described in section
591(b) of this title has engaged in conduct described in
section 591(a) of this title, shall conduct, for a period not
to exceed ninety days, such preliminary investigation of
the matter as the Attorney General deems appropriate.
(b)(1) If the Attorney General, upon completion of the
preliminary investigation, finds that the matter is so un­
substantiated that no further investigation or prosecution
is warranted, the Attorney General shall so notify the
division of the court specified in section 593(a) of this
title, and the division of the court shall have no power to
appoint a special prosecutor . . . .
(c)(1) If the Attorney General, upon completion of the
preliminary investigation, finds that the matter warrants
further investigation or prosecution, or if ninety days
elapse from the receipt of the information without a deter­
mination by the Attorney General that the matter is so
unsubstantiated as not to warrant further investigation or
prosecution, then the Attorney General shall apply to the
division of the court for the appointment of a special
prosecutor . . . .
28 U.S.C. § 592. In essence, the text of the statute provides that when the
Attorney General receives specific information, the Attorney General shall
conduct an investigation for a period not to exceed 90 days and the
Attorney General shall make certain reports to the court. A strict con­
struction of this text would lead to the conclusion that the 90-day period
does not begin until the Attorney General himself receives the specific
information. Although standing alone this is a very plausible construction
of the clause dealing with receipt of the specific information, it is
arguably not as persuasive an interpretation when considered in connec­
tion with the mandate in the succeeding clause for the Attorney General
to conduct the preliminary investigation. Clearly, Congress did not
intend that the Attorney General would personally conduct every aspect
o f the preliminary investigation.1 Since the second clause might be read
1 In addition to the strong argument that can be made on the basis of practice and common sense,
the legislative history of the statute makes it quite clear that Congress did not anticipate that the
A ttorney General personally would participate in all aspects of the preliminary investigations required
by the A ct. See, e.g., S. Rep. No. 170, 95th Cong., 1st Sess. 63 (1977).
398
genetically to mean that the Department of Justice should conduct the
preliminary investigation, it can be argued that this casts doubt upon the
literal reading of the term Attorney General in the first clause.
In our view, however, there is no real inconsistency in the several
uses of the term Attorney General in the text of the statute, and we
have little doubt that the term connotes and recognizes a personal role
for the Attorney General in implementing each phase of the Special
Prosecutor provisions. As we read the text, the statute anticipated that
the Attorney General would be apprised of specific information (either
by his subordinates or by an outside source); that he would immediately
direct a preliminary investigation; 2 and that he would make the deter­
minations required by the Act within 90 days of his receipt of the
information and commencement of the investigation.3
In light of the argument that could be made for a different construc­
tion of the text of the statute, and the importance of adhering closely to
the congressional intent, we have also scrutinized the legislative history
of the statute. We have not found that the legislative history expresses
any clear congressional intent with respect to whether the 90-day
investigation period commences with the receipt of information by the
Attorney General or by any other Department of Justice employee.
However, our review of the legislation history has convinced us that
our position on this question is fully consistent with the principles
behind the Special Prosecutor legislation and the specific interests that
Congress intended to serve by providing for a 90-day preliminary
investigation.
The legislative history identifies two somewhat conflicting interests
to be served by the 90-day preliminary investigation. On the one hand,
Congress limited the time to conduct a preliminary investigation be­
cause of a concern that Special Prosecutor matters be resolved
promptly and credibly by an independent entity. This concern is re­
flected in the following statement from the Senate report on the bill:
The statute contains a time limit on the period permit­
ted for a preliminary investigation because the Committee
* “Conducting” an investigation does not necessarily mean physically and personally carrying out
each and every phase o f the investigation. As you know, federal criminal investigations ordinarily are
executed by persons working under the general supervision and direction of the A ttorney General
pursuant to powers delegated by the Attorney General. See generally, 28 U.S.C §531 and 28 C F R
0.55 and 0 85. In the same way, the Attorney General can be said to “conduct” a preliminary
investigation under the Special Prosecutor provisions. The common definition of “conduct” embraces
the concept o f management, direction, or command. See Webster’s Third New International Diction­
ary (1976) s.v. “conduct.”
3 Our interpretation is supported by the reference in 28 U.S.C. § 594 to the power and authority of
the Special Prosecutor, who is expressly given “ full power and independent authority to exercise all
investigative and prosecutorial functions and powers o f the Department o f Justice, the Attorney General,
and any other officer or employee o f the Department o f Justice (Emphasis added.) Had the
Congress intended that the 90-day preliminary investigation period commence instantly “ upon [the
receipt of] specific information” by any one of the Department’s approximately 52,000 employees, it
could have, and we presume it would have, used the language that it used in § 594.
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did not want serious allegations of criminal wrongdoing
against individuals described in subsection 591(b) to
remain in the Department of Justice and not be referred
to the court for the appointment of a temporary special
prosecutor simply because the Department had not even
begun to conduct an investigation of the matter. Similarly,
the Committee did not want the Department of Justice to
conduct the full investigation of serious criminal allega­
tions against the individuals described in subsection (b) of
section 591 since the premise of the statute is that there is
an institutional conflict of interest for the Department of
Justice to conduct the investigation and prosecution of
such cases. Therefore, such matters should be referred to
the court for the appointment of a special prosecutor as
soon as a preliminary investigation has indicated that the
matter warrants further investigation and prosecution.
S. Rep. No. 170, 95th Cong., 1st Sess. 54 (1977).4
On the other hand, Congress realized that some period of preliminary
investigation by the Justice Department was necessary to weed out the
frivolous cases from those o f substance. See S. Rep. No. 170, supra, at
54. The preliminary investigation protects the interests of the subject
official in avoiding the appointment of a Special Prosecutor on totally
unsubstantiated or frivolous allegations. This concern for fairness to the
subject was recently reiterated by the Subcommittee on Oversight of
Government Management o f the Senate Governmental Affairs Commit­
tee when it endorsed a proposed amendment to the Act that would
permit limited extensions to the 90-day investigation in appropriate
circumstances:
Because of the serious consequences which a special pros­
ecutor appointment has on the subject of the investiga­
tion, however, the Subcommittee believes that the special
prosecutor process should not be triggered simply because
the Department of Justice has been unable to complete
the fact-finding necessary to make a proper determination
within an inflexible time frame.
Subcommittee on Oversight of Government Management, Senate Gov­
ernmental Affairs, 97th Cong., 1st Sess. 44, Special Prosecutor Provi­
sions of Ethics in Government Act of 1978 (Comm. Print 1981).
4 W e recognize that the first sentence of this statement indicates a clear congressional intent that
there be no unnecessary or deliberate delay by the Justice Department in initiating preliminary
investigations. However, the last sentence o f the statement makes it equally clear that Congress
anticipated that there would be some preliminary investigation before a matter is referred to a Special
Prosecutor. W e believe that our construction of the statute makes it possible to achieve both of these
goals.
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In balancing these interests, we find that the purposes of the Act are
best served by an interpretation that focuses on the effectiveness of the
notice received, rather than on the instant of the receipt of the informa­
tion by any Justice employee. Effective notice, in our view, must be
notice sufficient to permit accomplishment of the purposes of the Act.
For example, in this case we conclude that the information concerning
the Secretary of Labor was not effectively received until December,
when the information reached Washington, and the Attorney General
ordered the preliminary investigation. Prior to this time, the Attorney
General was incapable of either conducting an investigation or request­
ing a Special Prosecutor because he was unaware of the allegations.
This construction guarantees that the subject official will have the
benefit of as complete a preliminary inquiry as the Attorney General
deems appropriate, within the constraints of the Act, including the 90-
day investigative time limit. While we recognize that this approach may
appear to favor the interest in fairness to a subject over the public
interest in prompt resort to a Special Prosecutor where the circum­
stances require it, we believe that this is a proper result in this case,
given the magnitude of each interest and the potential harm to each
should full deference be given to the competing interest.5
We believe that the construction of the law we have articulated is
the most faithful construction of its terms and congressional intent
under the circumstances presented. Congress determined that a prelimi­
nary investigation was necessary in the interest of fairness to the ac­
cused and as a matter of institutional and public interest to protect
against the appointment of special prosecutors every time a baseless,
frivolous, or malicious accusation is made against a government official.
A 90-day period was considered an appropriate time for such an inves­
6 O f course, in determining the appropriate length of the preliminary investigation in particular
cases, the Attorney General is obliged to consider the full facts and give appropriate deference to each
of these interests. In this case, for example, he must consider the statute of limitations in determining
what portion o f the 90-day investigative period he should utilize. Certainly, an imminent expiration o f
the limitations period would increase the weight of the public interest in promptness, in the balance
against the subject’s interest in a fair and proper preliminary investigation.
Another factor that the Attorney General should consider in determining the length of this
particular preliminary investigation is the possibility of conducting a sufficient and fair inquiry within a
penod of time as close as possible to 90 days of the Strike Force attorney’s receipt of the information.
In the past, the Department has been able to make a Special Prosecutor determination with 90 days o f
the first known receipt of specific information by a Department employee. In fact, the Criminal
Division admonished its attorneys by memorandum dated April 5, 1979, that “the ninety days starts
running when the information is ‘received’ by the Department (presumably including the FBI).” We
concur completely with this admonition to employees to conduct themselves as if their receipt of any
information that might trigger the Act marks the commencement of the 90-day period. While this
Criminal Division memorandum does not purport to be a Department of Justice legal opinion, and
does not, in our view, accurately state the law, it is a sound and prudent management requirement. It
is in the interest of the Department, the subject official, and the public that the Department react
quickly to any allegations of misconduct by high government officials.
Finally, you should be aware of another legal opinion prepared by this Office which discusses, for
purposes o f applying the “effective date” provisions of the Act, the time when information should be
deemed received by the Department. In the situation at issue there, the information was received in
pieces, and the problem was to determine when it became specific information sufficient to trigger the
Act. There was no question of effective notice in that case.
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tigation. Congress vested in the Attorney General responsibility for
conducting an appropriate investigation to eliminate those charges,
which are “so unsubstantiated that no further investigation or prosecu­
tion is warranted.” It would be destructive of this intent—and contrary
to the plain words of the statute—to construe the law in a way which
can require the appointment of a Special Prosecutor before any investi­
gation at all or after an unreasonably brief interval. Ninety days, or at
least something close to it, should be available to the Attorney General
for the preliminary investigation.
Our view concerning the commencement of the 90-day preliminary
investigation period should not be construed as endorsing any system
that would intentionally insulate the Attorney General from prompt
notice of information triggering the requirements of the law, or approv­
ing any delay in the commencement of the period in a factual situation
in which the Attorney General would be considered as having con­
structive notice of such information.
In reaching these conclusions, we have given considerable attention
to the responsibility of all Department employees to see that the laws
are faithfully executed. Although we are confident that the difficulties
in implementing the statute in this case were the product of inattention,
rather than bad faith, we think that the Attorney General may wish to
consider taking corrective action to prevent such errors in the future.
As you know, the Deputy Attorney General and the Criminal Division
have in the past sent various directives to Department personnel de­
signed to facilitate the prompt reporting of information, and the expedi­
tious handling of Special Prosecutor matters (see note 5, supra). At the
least, the Department should reiterate its advice to employees on this
subject. We may also wish to explore the feasibility of a regulation that
would delegate functions and set forth procedures for implementing the
Special Prosecutor provisions. We would be happy to assist in such a
project, should it be undertaken.
T h e o d o r e B. O l s o n
Assistant Attorney General
Office o f Legal Counsel
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