Financial Audit
Independent and Special Counsel Expenditures for the Six Months Ended September 30, 2004 Gao ID: GAO-05-359 March 31, 2005Pursuant to a legislative requirement, GAO audited the expenditures of two offices of independent counsel and one office of special counsel for the 6 months ended September 30, 2004.
In our audits covering the 6 months ended September 30, 2004, we found (1) the statements of expenditures presented for the offices of Independent Counsel David M. Barrett and Independent Counsel Julie F. Thomas and for the office of Special Counsel Patrick J. Fitzgerald, respectively, are presented fairly, in all material respects, in conformity with the basis of accounting described in note 1 of each counsel's statement, which is principally the cash basis, a comprehensive basis of accounting other than U.S. generally accepted accounting principles; (2) the counsels had effective internal control over financial reporting (including safeguarding assets) and compliance with laws and regulations; and (3) no reportable noncompliance with laws and regulations we tested.
GAO-05-359, Financial Audit: Independent and Special Counsel Expenditures for the Six Months Ended September 30, 2004
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Report to Congressional Committees:
March 2005:
Financial Audit:
Independent and Special Counsel Expenditures for the Six Months Ended
September 30, 2004:
[Hyperlink, http: //www.gao.gov/cgi-bin/getrpt?GAO-05-359]:
Contents:
Letter:
Auditor's Report:
Background:
Opinions on Statements of Expenditures:
Opinions on Internal Control:
Compliance with Laws and Regulations:
Objectives, Scope, and Methodology:
Agency Comments:
Appendixes:
Appendix I: Statement of Expenditures for Independent Counsel Barrett:
Appendix II: Statement of Expenditures for Independent Counsel Thomas:
Appendix III: Statement of Expenditures for Special Counsel Fitzgerald:
AOUSC: Administrative Office of the U.S. Courts:
GAO: Government Accountability Office:
OIC: Office of Independent Counsel:
OSC: Office of Special Counsel:
Letter March 31, 2005:
Congressional Committees:
Enclosed is our report on the statements of expenditures of two offices
of independent counsel and one office of special counsel for the 6
months ended September 30, 2004. We are sending copies of this report
to the Attorney General, the Director of the Administrative Office of
the U.S. Courts, the Independent Counsels and Special Counsel included
in our audit, and other interested parties. Copies of this report will
be made available to others upon request. This report is also available
at no charge on GAO's Web site at [Hyperlink, http://www.gao.gov]
www.gao.gov.
If you or your staff have any questions concerning this report, please
contact me at (202) 512-3406 or Hodge Herry, Assistant Director, at
(202) 512-9469. You can also reach us at [Hyperlink,
sebastians@gao.gov] or [Hyperlink, herryh@gao.gov]. Key contributors to
this report were Kwabena Ansong and LaDonna Towler.
Signed by:
Steven J. Sebastian:
Director:
Financial Management and Assurance:
Auditor's Report:
Congressional Committees:
This report presents the results of our audits of expenditures[Footnote
1] reported by two offices of independent counsel and one office of
special counsel for the 6 months ended September 30, 2004. The
Department of Justice and the independent counsels are required under
28 U.S.C. § 594 (d)(2), (h) and § 596 (c)(1) to report on a semiannual
basis the expenditures from a permanent, indefinite appropriation
established within the Department of Justice to fund independent
counsel activities. Under 28 U.S.C. § 596 (c) (2), we are required to
audit the statements of expenditures prepared by the independent
counsels. We also audited the statement of expenditures of Special
Counsel Patrick J. Fitzgerald, who is authorized by the Department of
Justice to fund his operation from the permanent, indefinite
appropriation.
In our audits covering the 6 months ended September 30, 2004, we found:
* the statements of expenditures presented in appendixes I through III,
for each of the offices of Independent Counsel David M. Barrett and
Independent Counsel Julie F. Thomas and for the office of Special
Counsel Patrick J. Fitzgerald, respectively, are presented fairly, in
all material respects, in conformity with the basis of accounting
described in note 1 of each counsel's statement, which is principally
the cash basis, a comprehensive basis of accounting other than U.S.
generally accepted accounting principles;
* each of the counsels had effective internal control over financial
reporting (including safeguarding assets) and compliance with laws and
regulations as of September 30, 2004; and:
* no reportable noncompliance with laws and regulations we tested.
The following sections provide background information; outline each
conclusion in more detail; and discuss the objectives, scope, and
methodology of our audits.
Background:
The Ethics in Government Act of 1978 amended title 28 of the United
States Code to authorize the judicial appointment of independent
counsels when the Attorney General determines that reasonable grounds
exist to warrant further investigation of high-ranking government
officials for certain alleged crimes. The independent counsel law (28
U.S.C. §§ 591-599), which expired on June 30, 1999, was intended to
preserve and promote the accountability and integrity of public
officials and of the institutions of the federal government. Provisions
of the law allowed the independent counsels serving at the expiration
date to continue investigating pending matters until they determined
that the investigations of such matters have been completed.
The independent counsel law directs the Department of Justice to pay
all costs relating to the establishment and operation of any office of
independent counsel. A permanent, indefinite appropriation was
established within the Department of Justice to pay all necessary
expenses for investigations and prosecutions by independent counsels
appointed pursuant to the independent counsel law or other law. Also,
the Department of Justice determined that the appropriation established
by Public Law 100-202[Footnote 2] to fund expenditures by independent
counsels appointed pursuant to the independent counsel law or other law
is available to fund the expenditures of U.S. Attorney Patrick J.
Fitzgerald, who was appointed as a special counsel within the
Department of Justice by the then Acting Attorney General.[Footnote 3]
The independent counsel law also designates specific responsibilities
to the Administrative Office of the U.S. Courts (AOUSC) for the
administrative support of independent counsels. The Department of
Justice periodically disburses lump-sum payments to AOUSC for this
purpose.
The statements of expenditures and related notes included in this
report do not include expenditures related to the investigation by
Independent Counsel Larry Thompson, which was officially closed
effective June 1999, and accordingly, no longer prepares a statement of
expenditures. However, during the 6 months ended September 30, 2004,
$28,502 was paid for litigation support services rendered by a vendor
under a Department of Justice contract for the months of November 1998
through February 1999, while the office was still open.
The U.S. Court of Appeals for the D.C. Circuit also awarded
reimbursements of approximately $1,215 for attorney fees and expenses
of individuals who had been investigated by the office of Independent
Counsel Thomas but not indicted, as authorized by 28 U.S.C. §
593(f)(1). This reimbursement was made from the permanent fund
established for the payment of judgments, and therefore, these
expenditures are not reflected in the statement of expenditures for
Independent Counsel Thomas.
Opinions on Statements of Expenditures:
The statements of expenditures, including the accompanying notes, for
each of the offices of Independent Counsel David M. Barrett and
Independent Counsel Julie F. Thomas and for the office of Special
Counsel Patrick J. Fitzgerald present fairly, in all material respects,
the expenditures of each of these counsels for the 6 months ended
September 30, 2004, on the basis of accounting described in note 1 of
each office's statement.
The counsels prepared their statements of expenditures principally on a
cash basis of accounting, which is a comprehensive basis of accounting
other than U.S. generally accepted accounting principles. The basis of
accounting is described in note 1 of each counsel's statement. Each of
the counsel's statements includes only expenditures made from the
permanent, indefinite appropriation.
During any 6-month reporting period, there may be other significant
costs incurred in support of the work of the counsels. These costs are
paid from appropriations other than the permanent, indefinite
appropriation established to fund independent counsel activities. These
costs arise when a counsel uses detailees from other federal agencies,
such as the Federal Bureau of Investigation. Independent counsels are
not required to reflect such costs in their statements of expenditures,
and neither the independent counsels nor special counsel does so. For
the 6 months ended September 30, 2004, there were no such support
activities provided to the independent counsels. However, for Special
Counsel Fitzgerald, detailees from the Federal Bureau of Investigation
were involved in the investigation, but the associated costs were not
readily identifiable and, therefore, the costs are not reflected in the
statement of expenditures for Special Counsel Fitzgerald.
Opinions on Internal Control:
Each of the counsels maintained, in all material respects, effective
internal control over financial reporting (including safeguarding
assets) and compliance as of September 30, 2004, that provided
reasonable assurance that misstatements, losses, or noncompliance
material in relation to the statements of expenditures would be
prevented or detected on a timely basis. Our opinion for each counsel
is based on criteria we established in our Standards for Internal
Control in the Federal Government.[Footnote 4]
Compliance with Laws and Regulations:
Our tests for compliance with selected provisions of laws and
regulations disclosed no instances of noncompliance that would be
reportable under U.S. generally accepted government auditing standards.
However, the objective of our audit was not to provide an opinion on
overall compliance with laws and regulations. Accordingly, we do not
express such an opinion.
Objectives, Scope, and Methodology:
The independent counsels are responsible for preparing statements of
expenditures in conformity with the basis of accounting described in
the accompanying notes. Though not required to do so, the special
counsel also elected to prepare a statement of expenditures. The
counsels are also responsible for establishing and maintaining internal
control to provide reasonable assurance that the following internal
control objectives are met.
* Financial reporting: Transactions are properly recorded, processed,
and summarized to permit the preparation of the statements of
expenditures in conformity with the basis of accounting described in
the notes to the statements, and assets are safeguarded against loss
from unauthorized acquisition, use, or disposition.
* Compliance with laws and regulations: Transactions are executed in
accordance with laws and regulations that could have a direct and
material effect on the counsels' statements of expenditures.
We are responsible for obtaining reasonable assurance about whether (1)
each counsel's statement of expenditures is presented fairly, in all
material respects, in conformity with the basis of accounting described
in the notes accompanying their statements of expenditures and (2) each
counsel maintained effective internal control over financial reporting
and compliance as of September 30, 2004. We are also responsible for
testing compliance with selected provisions of laws and regulations
that could have a direct and material effect on the statements of
expenditures.
In order to fulfill these responsibilities, for each counsel, we (1)
examined, on a test basis, evidence supporting the amounts and
disclosures in the statement of expenditures; (2) assessed the
accounting principles used by management; (3) evaluated the overall
presentation of the statement of expenditures; (4) obtained an
understanding of internal control related to financial reporting
(including safeguarding assets) and compliance with laws and
regulations; (5) tested relevant internal control over financial
reporting (including safeguarding assets) and compliance; and (6)
tested compliance with selected provisions of 28 U.S.C. §§ 591-599, 5
U.S.C. Chapter 55, and regulations relating to pay administration.
We did not evaluate controls relevant to operating objectives, such as
controls relevant to ensuring efficient operations. We limited our
internal control testing to controls over financial reporting and
compliance. Because of inherent limitations in internal control,
misstatements due to error, fraud, losses, or noncompliance may
nevertheless occur and not be detected. We also caution that projecting
our evaluation to future periods is subject to the risk that controls
may become inadequate because of changes in conditions or that the
degree of compliance with controls may deteriorate.
We did not test compliance with all laws and regulations applicable to
the offices of the independent and special counsel. We limited our
tests of compliance to those laws and regulations that we deemed
applicable to the statements of expenditures for the 6 months ended
September 30, 2004. We caution that noncompliance may occur and not be
detected by these tests and that such testing may not be sufficient for
other purposes.
We performed our audits in accordance with U.S. generally accepted
government auditing standards.
Agency Comments:
We provided drafts of this report to the offices of independent
counsel, the office of special counsel, the Department of Justice, and
AOUSC for review and comment. These entities agreed with the facts and
conclusions in our report.
Signed by:
Steven J. Sebastian:
Director:
Financial Management and Assurance:
March 15, 2005:
List of Committees:
The Honorable Thad Cochran:
Chairman:
The Honorable Robert C. Byrd:
Ranking Minority Member:
Committee on Appropriations:
United States Senate:
The Honorable Susan M. Collins:
Chairman:
The Honorable Joseph I. Lieberman:
Ranking Minority Member:
Committee on Homeland Security and Governmental Affairs:
United States Senate:
The Honorable Arlen Specter:
Chairman:
The Honorable Patrick J. Leahy:
Ranking Minority Member:
Committee on the Judiciary:
United States Senate:
The Honorable Jerry Lewis:
Chairman:
The Honorable David R. Obey:
Ranking Minority Member:
Committee on Appropriations:
House of Representatives:
The Honorable Tom Davis:
Chairman:
The Honorable Henry A. Waxman:
Ranking Minority Member:
Committee on Government Reform:
House of Representatives:
The Honorable F. James Sensenbrenner, Jr.:
Chairman:
The Honorable John Conyers, Jr.:
Ranking Minority Member:
Committee on the Judiciary:
House of Representatives:
[End of section]
Appendixes:
Appendix I: Statement of Expenditures for Independent Counsel Barrett:
DAVID M. BARRETT:
Office of Independent Counsel:
Statement of Expenditures (Cash basis):
Six Months Ended September 30, 2004:
Personnel compensation and benefits: $452,880.
Travel (note 2): $51,102.
Rent, communications, and utilities (note 3): $262,743.
Contractual services (note 4): $346,829.
Acquisition of capital assets (note 5): $1,395.
Supplies and materials (note 6): $3,793.
Administrative services (note 7): $142,610.
Total expenditures: $$1,261,352.
[End of table]
The accompanying notes are an integral part of this statement.
DAVID M. BARRETT:
Office of Independent Counsel:
Notes to the Statement of Expenditures:
Note 1 - Accounting policies:
Reporting entity: The accompanying statement of expenditures presents
the expenditures of the Office of Independent Counsel-David M. Barrett
(OIC-Barrett) for the 6 months ended September 30, 2004. The statement
of expenditures includes only expenditures made from the permanent,
indefinite appropriation for the OIC that are processed during the
period through the Administrative Office of the U.S. Courts (AOUSC) and
the OIC. Mr. Barrett was appointed on May 24, 1995, to investigate
certain allegations against the Secretary of Housing and Urban
Development. On March 17, 2003, the Special Division of the U.S. Court
of Appeals for the D.C. Circuit ordered that the Independent Counsel
continue his work to the extent necessary or appropriate to perform the
non investigative and non prosecutorial tasks remaining as required to
conclude the functions of his office. Expenditures during this period
principally relate to preparing the final report for submission to the
courts and to closing the office.
Basis of accounting: The accompanying statement of expenditures was
prepared principally on the cash basis of accounting, which is a
comprehensive basis of accounting other than U.S. generally accepted
accounting principles. Under this method, except for personnel
compensation and benefits, expenditures are recorded when the funds are
disbursed by AOUSC or, for noncash transfers, when charged by AOUSC.
Generally, personnel compensation and benefits are recorded at the end
of the pay period when earned.
Note 2 - Travel:
Travel primarily consists of expenditures for temporary duty travel for
OIC-Barrett personnel.
Note 3 - Rent, communications, and utilities:
Approximately $229,800 in office rent is included in rent,
communications, and utilities.
Note 4 - Contractual services:
Contractual services primarily consist of expenditures for the services
of contractors and other experts in areas related to the investigation.
Note 5 - Acquisition of capital assets:
The capital assets expenditures are primarily for automated data
processing equipment. The assets will remain the property of the
federal government at the conclusion of the investigation.
Note 6 - Supplies and materials:
The supplies and materials expenditures are primarily for supplies for
office use, including those for archiving records.
Note 7 - Administrative services:
AOUSC receives an administrative fee equal to 3 percent of OIC
expenditures for performing disbursement and accounting functions for
OIC-Barrett. Payment of these fees generally occurs in the month
following the services. Also included in administrative services are
other costs incurred by AOUSC in providing administrative guidance and
support to independent counsel offices. These costs were certified by
AOUSC, paid from the independent counsel appropriation, and allocated
to the OIC.
[End of section]
Appendix II: Statement of Expenditures for Independent Counsel Thomas:
JULIE F. THOMAS:
Office of Independent Counsel:
Statement of Expenditures (Cash basis):
Six Months Ended September 30, 2004:
Personnel compensation and benefits: $120,099.
Travel (note 2): $9,305.
Rent, communications, and utilities (note 3): $5,426.
Contractual services (note 4): $(5,360).
Supplies and materials (note 5): $524.
Administrative services (note 6): $7,706.
Total expenditures: $137,700.
[End of table]
The accompanying notes are an integral part of this statement.
JULIE F. THOMAS:
Office of Independent Counsel:
Notes to the Statement of Expenditures:
Note 1 - Accounting policies:
Reporting entity: The accompanying statement of expenditures presents
the expenditures of the Office of Independent Counsel-Julie F. Thomas
(OIC-Thomas) for the 6 months ended September 30, 2004. The statement
of expenditures includes only expenditures made from the permanent,
indefinite appropriation for the OIC that are processed during the
period through the Administrative Office of the U.S. Courts (AOUSC) and
the OIC.
Kenneth W. Starr (OIC-Starr) was appointed on August 5, 1994, to assume
the investigation of possible violations of federal criminal law in Re:
Madison Guaranty Savings and Loan Association and other entities
(Whitewater), which was begun by regulatory Independent Counsel Robert
B. Fiske, Jr. The U.S. Court of Appeals subsequently expanded OIC-
Starr's jurisdiction to include selected White House Travel Office and
access-to-personnel-file issues on March 22, 1996, and June 21, 1996,
respectively. On October 25, 1996, it further expanded OIC-Starr's
jurisdiction to include issues related to statements made on June 26,
1996, before the Government Reform and Oversight Committee, U.S. House
of Representatives. On January 16, 1998, the court expanded OIC-Starr's
jurisdiction to include issues related to whether, in a civil case
(commonly referred to as the Lewinsky matter), certain individuals
suborned perjury, obstructed justice, intimidated witnesses, or
otherwise violated federal law in dealing with witnesses, potential
witnesses, attorneys, or others.
On October 18, 1999, Mr. Starr resigned his appointment, and was
succeeded by Robert W. Ray as Independent Counsel effective the same
date. On March 16, 2000, Mr. Ray submitted to the Special Division of
the U.S. Court of Appeals for the D.C. Circuit two final reports on (1)
the access-to-personnel-file issues and (2) the issues related to
statements made before the Government Reform and Oversight Committee.
On July 28, 2000, the court ordered the public release of the two
reports. Further, on June 22, 2000, Mr. Ray submitted to the court a
final report on the White House travel matter. On October 18, 2000, the
court ordered the public release of that report. On January 19, 2001,
Mr. Ray announced the conclusion of all current matters before the OIC.
On August 21, 2001, the Special Division of the U.S. Court of Appeals
for the D.C. Circuit, at the request of the Independent Counsel,
ordered the termination of the investigative functions of the
Independent Counsel as of March 31, 2002, except to the extent
necessary to conclude any remaining non investigative and
nonprosecutorial tasks required by statute. On March 2, 2001, and May
18, 2001, Mr. Ray submitted to the court the final reports on the
Whitewater and Lewinsky matters, respectively. On March 6, 2002, the
court ordered the publication and release of the report on the Lewinsky
matter. On March 20, 2002, the court ordered the publication and
release of the Whitewater report. On March 12, 2002, Mr. Ray resigned
his appointment and was succeeded by Ms. Julie F. Thomas as Independent
Counsel effective that same date. In November 2003, the Special
Division of the U.S. Court of Appeals for the D.C. Circuit ordered the
termination of the office within 20 weeks. The office was permanently
closed on March 23, 2004. Expenditures for this reporting period were
for final preparation of records for transfer to the National Archives.
Basis of accounting: The accompanying statement of expenditures was
prepared principally on the cash basis of accounting, which is a
comprehensive basis of accounting other than U.S. generally accepted
accounting principles. Under this method, except for personnel
compensation and benefits, expenditures are recorded when the funds are
disbursed by AOUSC or, for noncash transfers, when charged by AOUSC.
Generally, personnel compensation and benefits are recorded at the end
of the pay period when earned.
Note 2 - Travel:
Travel primarily consists of expenditures for temporary duty travel for
OIC-Thomas personnel.
Note 3 - Rent, communications, and utilities:
Approximately $4,000 is included for moving and relocating equipment in
order to close the office.
Note 4 - Contractual services:
A refund was received for contractual services rendered in a prior
reporting period.
Note 5 - Supplies and materials:
The supplies and materials expenditures are primarily for office
supplies used in the archiving of records.
Note 6 - Administrative services:
AOUSC receives an administrative fee equal to 3 percent of OIC
expenditures for performing disbursement and accounting functions for
OIC-Thomas. Payment of these fees generally occurs in the month
following the services. These costs were certified by AOUSC, paid from
the independent counsel appropriation, and allocated to the OIC.
[End of section]
Appendix III: Statement of Expenditures for Special Counsel Fitzgerald:
PATRICK J. FITZGERALD:
Office of Special Counsel:
Statement of Expenditures (Cash basis):
Six Months Ended September 30, 2004:
Personnel compensation and benefits: $487,098.
Travel (note 2): $44,565.
Contractual services (note 3): $33,193.
Supplies and materials (note 4): $6,489.
Acquisition of equipment (note 5): $13,554.
Total expenditures: $584,899.
[End of table]
The accompanying notes are an integral part of this statement.
PATRICK J. FITZGERALD:
Office of Special Counsel:
Notes to the Statement of Expenditures:
Note 1 - Accounting policies:
Reporting entity: The accompanying statement of expenditures presents
the expenditures of the Office of Special Counsel-Patrick J. Fitzgerald
(OSC-Fitzgerald) for the 6 months ended September 30, 2004. The
statement of expenditures includes only expenditures made from the
permanent, indefinite appropriation for OSC-Fitzgerald that are
processed during the period through the Department of Justice. On
December 30, 2003, the Acting Attorney General appointed U.S. Attorney
Patrick J. Fitzgerald as a Special Counsel to investigate whether
officials of the current administration illegally disclosed the
identity of an undercover Central Intelligence Agency officer.
Basis of accounting: The accompanying statement of expenditures was
prepared principally on the cash basis of accounting, which is a
comprehensive basis of accounting other than U.S. generally accepted
accounting principles. Under this method, except for personnel
compensation and benefits, expenditures are recorded when the funds are
disbursed by the Department of Justice. Generally, personnel
compensation and benefits are recorded at the end of the pay period
when earned.
Note 2 - Travel:
Travel primarily consists of expenditures for investigation-related
travel for OSC-Fitzgerald personnel.
Note 3 - Contractual services:
Contractual services primarily consist of expenditures for research
services in areas of interest to the investigation.
Note 4 - Supplies and materials:
The supplies and materials expenditures are primarily for supplies for
office use.
Note 5 - Acquisition of equipment:
The expenditures are for automated data processing equipment, monitors,
printers, and cabinets. These equipments will remain the property of
the federal government at the conclusion of the investigation.
[End of section]
(196027):
FOOTNOTES
[1] The term expenditures as used in this report generally means cash
disbursed.
[2] The permanent, indefinite appropriation was established by Pub. L.
No. 100-202, § 101(a), title II, 101 Stat. 1329, 1329-9 (Dec. 22,
1987), 28 U.S.C. § 591 note.
[3] We reviewed the legal authority for the Department of Justice to
use the permanent indefinite appropriation to fund the expenditures
relating to Special Counsel Fitzgerald's investigation and, in our
opinion to the Chairmen of the House and Senate Appropriations
Committees, concluded that such was not an illegal, improper, or
unauthorized use of the appropriation. B-302582 (Sept. 30, 2004).
[4] GAO, Standards for Internal Control in the Federal Government,GAO/
AIMD-00-21.3.1 (Washington, D.C.: November 1999).
http://www.gao.gov/special.pubs/ai00021p.pdf.
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