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Chapter 08 - Independent Prosecutor

Chapter 08 - Independent Prosecutor

4.0801 Applicability of provisions of this chapter.


(a) Preliminary investigation with respect to certain covered persons. The Attorney General shall conduct a preliminary investigation in accordance with section 4.0802 whenever the Attorney General receives information sufficient to constitute grounds to investigate whether any person described in subsection (b) may have violated any Territorial criminal law other than a violation classified as a Class B or C misdemeanor or an infraction.

(b) Persons to whom subsection (a) applies.

The persons referred to in subsection (a) are:

(1) the Governor and Lieutenant Governor;

(2) any appointed contract, or career service director, office/agency head, or other public official;

(3) any member of the Legislature;

(4) any Justice Associate Judge or Judge;

(5) any Assistant Attorney General and any individual working in the Office of the Attorney General;

(6) any individual who held an office or position described in paragraphs (1)-(5) for 1 year after leaving the office or position.

(c) Preliminary investigation with respect to other persons.

When the Attorney General determines that an investigation or prosecution of a person by the Office of the Attorney General may result in a personal financial, or political conflict of interest, the Attorney General may conduct a preliminary investigation of such person in accordance with section 4.0802 if the Attorney General receives information sufficient to constitute grounds to investigate whether that person may have violated Territorial criminal law other than a violation classified as a Class B or C misdemeanor or an infraction.

(d) Examination of information to determine need for preliminary investigation.

(1) Factors to be considered. In determining under subsection (a) or (c) or section 4.0802(c)(2), whether grounds to investigate exist, the Attorney General shall consider only:

(A) the specificity of the information received; and

(B) the credibility of the source of the information.

(2) Time period for making determination. The Attorney General shall determine whether grounds to investigate exist not later than 30 days after the information is first received. If within that 30-day period the Attorney General determines that the information is not specific or is not from a credible source, the Attorney General shall, upon making that determination, commence a preliminary investigation with respect to that information. If the Attorney General is unable to determine, within that 30-day period, whether the information is specific and from a credible source, the Attorney General shall, at the end of that 30-day period, commence a preliminary investigation with respect to that 30-day period, commence a preliminary investigation with respect to that information.

(e) Recusal of Attorney General

(1) When recusal is required.

(A) If information received under this chapter involves the Attorney General, the most senior Assistant Attorney General in the Office of the Attorney General, assigned as a prosecutor, who is not also recused shall perform the duties assigned under this chapter to the Attorney General.

(B) If information received under this chapter involves a person with whom the Attorney General has a personal or financial relationship, the Attorney General shall recuse himself or herself by designating the most senior Assistant Attorney General in the Office of the Attorney General assigned as a prosecutor, who is not also recused to perform the duties assigned under this chapter to the Attorney General.

(2) Requirements for recusal determination. Before personally making any other determination under this chapter with respect to information received under this chapter, the Attorney General shall determine under paragraph (1)(B) whether recusal is necessary. The Attorney General shall set forth this determination in writing, identify the facts considered by the Attorney General, and set forth the reasons for the recusal. The Attorney General shall file this determination with any notification or application submitted to the division of the court under this chapter with respect to such information.

4.0802 Preliminary investigation and application for appointment of an independent prosecutor.


(a) Conduct of Preliminary Investigation.

(1) In general. A preliminary investigation conducted under this chapter shall be of such matters as the Attorney General considers appropriate in order to make a determination, under subsection (b) or section 4.0807, on whether further investigation is warranted, with respect to each potential violation, or allegation of a violation, of criminal law. The Attorney General shall make such determination not later than 90 days after the preliminary investigation is commenced, except that, in the case of a preliminary investigation commenced after a legislative request under section 4.0810, the Attorney General shall make such determination not later than 90 days after the request is received. The Attorney General shall promptly notify the division of the court specified in section 4.0811(a) of the commencement of such preliminary investigation and the date of such commencement.

(2) Limited authority of Attorney General. (A) In conducting preliminary investigations under this chapter, the Attorney General shall have no authority to convene plea bargain, grant immunity or issue subpoenas.

(B)(i) The Attorney General shall not base a determination under this chapter that information with respect to a violation of criminal law by a person is not specific and from a credible source upon a determination that such person lacked the state of mind required for the violation of criminal law.

(ii) The Attorney General shall not base a determination under this chapter that there are no reasonable grounds to believe that further investigation is warranted, upon a determination that such person lacked the state of mind required for the violation of criminal law involved, unless there is clear and convincing evidence that the person lacked such state of mind.

(3) Extension of time for preliminary investigation. The Attorney General may apply to the division of the court for a single extension, for a period of not more than 60 days of the 90-day period referred to in paragraph (1). The division of the court may, upon a showing of good cause, grant such extension.

(b) Determination that further investigation not warranted.

(1) Notification of division of the court. If the Attorney General upon completion of a preliminary investigation under this chapter determines that there are no reasonable grounds to believe that further investigation is warranted, the Attorney General shall promptly so notify the division of the court, and the division of the court shall have no power to appoint an independent prosecutor with respect to the matters involved.

(2) Form of notification. Such notification shall contain a summary of the information received and a summary of the results of the preliminary investigation.

(c) Determination That Further Investigation is Warranted.

(1) Application for appointment of independent prosecutor. The Attorney General shall apply to the division of the court for the appointment of an independent prosecutor if:

(A) the Attorney General upon completion of a preliminary investigation under this chapter, determines that there are reasonable grounds to believe that further investigation is warranted; or

(B) the 90-day period referred to in section 4.0805(a)(1), and any extension granted under subsections (a)(e), have elapsed and the Attorney General has not filed a notification with the division of the court under section 4.0807(a). In determining under this chapter whether reasonable grounds exist to warrant further investigation, the Attorney General shall comply with the written or other established policies of the Office of the Attorney General with respect to the conduct of criminal investigations.

(2) Receipt of additional information. If, after submitting a notification under section 4.0807(a), the Attorney General receives additional information sufficient to constitute grounds to investigate the matters to which such notification related, the Attorney General shall:

(A) conduct such additional preliminary investigation as the Attorney General considers appropriate for a period of not more than 90 days after the date on which such additional information is received; and

(B) otherwise comply with the provisions of this section with respect to such additional preliminary investigation to the same extent as any other preliminary investigation under this section.

(d) Contents of Application.

Any application for the appointment of an independent prosecutor under this chapter shall contain sufficient information to assist the division of the court in selecting an independent prosecutor and in defining that independent prosecutor’s prosecutorial jurisdiction so that the independent prosecutor has adequate authority to fully investigate and prosecute the subject matter and all matters related to that subject matter.

(e) Disclosure of information.

Except as otherwise provided in this chapter or as is deemed necessary for law enforcement purposes, no officer or employee of the Office of the Attorney General or an office of independent prosecutor may, without leave or the division of the court, disclose to any individual outside the Office of the Attorney General, or such office of independent prosecutor, any notification, application, or any other document, materials, or memorandum supplied to the division of the court under this chapter.

(f) Limitation on Judicial Review.

The Attorney General’s determination under this chapter to apply to the division of the court for the appointment of an independent prosecutor shall not be reviewable in any court.

(g) Legislative request.

(1) By judiciary committee or members thereof. The committee on the judiciary of either chamber of the Legislature or members of either such committee, may request in writing that the Attorney General apply for the appointment of an independent prosecutor.

(2) Report by Attorney General pursuant to request. Not later than 30 days after the receipt of a request under paragraph (1), the Attorney General shall submit, to the committee making the request, a report on whether the Attorney General has begun or will begin a preliminary investigation under this chapter of the matters with respect to which the request is made, in accordance with subsection (a) or (c) of section 4.0801, as the case may be. The report shall set forth the reasons for the Attorney General’s decision regarding such preliminary investigation as if relates to each of the matters with respect to which thee legislative request is made. If there is such a preliminary investigation, the report shall include the date on which the preliminary investigation began or will begin.

(3) Submission of information in response to legislative request. At the same time as any notification application, or any other document, material, or memorandum is supplied to the division of the court pursuant to this section with respect to a preliminary investigation of any matter with respect to which a request is made under paragraph (1), such notification, application, or other document, material or memorandum shall be supplied to the committee making the request. If no application for the appointment of an independent prosecutor is made to the division of the court under this section pursuant to such a preliminary investigation, the Attorney General shall submit a report to that committee stating the reasons why such application was not made, addressing each matter with respect to which the legislative request was made.

(4) Disclosure of information. Any report, notification, application, or other document, material, or memorandum supplied to a committee under this subsection shall not be revealed to any third party, except that the committee may, either on its own initiative or upon the request of the Attorney General, make public such portion or portions of such report, notification, application, document, material, or memorandum as will not in the committee’s judgment prejudice the rights of any individual.

4.0803 Duties of the division of the court.


(a) Reference to division of the court.

The division of the court to which this chapter refers is the division established under section 4.0809 of this chapter.

(b) Appointment and jurisdiction of Independent Prosecutor.

(1) Authority. Upon receipt of an application under section 4.0802(c), the division of the court shall appoint an appropriate independent prosecutor and shall define that independent prosecutor’s prosecutorial jurisdiction.

(2) Qualifications of independent prosecutor. The division of the court shall appoint as independent prosecutor an individual who has appropriate experience and who will conduct the investigation and any prosecution in a prompt, responsible, and cost-effective manner. The division of the court shall seek to appoint as independent prosecutor an individual who will serve to the extent necessary to complete the investigation and any prosecution without undue delay.

(3) Scope of prosecutorial jurisdiction. In defining the independent prosecutor’s prosecutorial jurisdiction, the division of the court shall assure that the independent prosecutor has adequate authority to fully investigate and prosecute the subject matter with respect to which the Attorney General has requested the appointment of the independent prosecutor, and all matters related to that subject matter. Such jurisdiction shall also include the authority to investigate and prosecute Territorial crimes other than those classified as Class B or C misdemeanors or infractions, that may arise out of the investigation or prosecution of the matter with respect to which the Attorney General’s request was made, including perjury obstruction of justice, destruction of evidence, and intimidation of witnesses.

(4) Disclosure of identity and prosecutorial jurisdiction. An independent prosecutor’s identity and prosecutorial jurisdiction (including any expansion under subsection (c) may not be made public except upon the request of the Attorney General or upon a determination of the division of the court that disclosure of the identity and prosecutorial jurisdiction of such independent prosecutor would be in the best interests of justice. In any event, the identity and prosecutorial jurisdiction of such independent prosecutor shall be made public when any criminal complaint or information is filed pursuant to the independent prosecutor’s investigation.

(c) Expansion of jurisdiction.

(1) In general. The division of the court, upon the request of the Attorney General, may expand the prosecutorial jurisdiction of an independent prosecutor, and such expansion, may be in lieu of the appointment of another independent prosecutor.

(2) Procedure for request by independent prosecutor.

(A) If the independent prosecutor discovers or receives information about possible violation of criminal law by persons as provided in section 4.0801 who are not covered by the prosecutorial jurisdiction of the independent prosecutor, the independent prosecutor may submit such information to the Attorney General. The Attorney General shall then conduct a preliminary investigation of the information in accordance with the provisions of section 4.0802, except that such preliminary investigation shall not exceed 30 days from the date such information is received. In making the determinations required by section 4.0802 the Attorney General shall give great weight to any recommendations of the independent prosecutor.

(B) If the Attorney General determines, after according great weight to the recommendations of the independent prosecutor, that there are no reasonable grounds to believe that further investigation is warranted, the Attorney General shall promptly so notify the division of the court and the division of the court shall have no power to expand the jurisdiction of the independent prosecutor or to appoint another independent prosecutor with respect to the matters involved.

(C) If:

(i) the Attorney General determines that there are reasonable grounds to believe that further investigation is warranted; or

(ii) the 30-day period referred to in subparagraph (A) elapses without a notification to the division of the court that no further investigation is warranted, the division of the court shall expand the jurisdiction of the appropriate independent prosecutor to include the matters involved or shall appoint another independent prosecutor to investigate such matters.

(d) Return for further explanation. Upon receipt of a notification under section 4.0807 or section (b)(d)(2) of this section from the Attorney General that there are no reasonable grounds to believe that further investigation is warranted with respect to information received under this chapter, the division of the court shall have no authority to overrule this determination but may return the matter to the Attorney General for further explanation of the reasons for such determination.

(e) Vacancies. If a vacancy in office arises by reason of the resignation, death, or removal of an independent prosecutor, the division of the court shall appoint an independent prosecutor to complete the work of the independent prosecutor whose resignation, death, or removal caused the vacancy, except that in the case of a vacancy arising by reason of the removal of an independent prosecutor, the division of the court may appoint an acting independent prosecutor to serve until any judicial review of such removal is completed.

(f) Attorneys’ fees.

(1) Award of fees. Upon the request of an individual who is the subject of an investigation conducted by an independent prosecutor pursuant to this chapter, the division of the court may if no criminal complaint or information is brought against such individual pursuant to that investigation, award reimbursement for those reasonable attorneys’ fees incurred by that individual during that investigation which would not have been incurred but for the requirements of this chapter. The division of the court shall notify the independent prosecutor who conducted the investigation and the Attorney General of any request for attorneys’ fees under this subsection.

(2) Evaluation of fees. The division of the court shall direct such independent prosecutor and the Attorney General to file a written evaluation of any request for attorneys’ fees under this subsection, addressing:

(A) the sufficiency of the documentation;

(B) the need or justification for the underlying item;

(C) whether the underlying item would have been incurred but for the requirements of this chapter; and

(D) the reasonableness of the amount of money requested.

(g) Disclosure of information. The division of the court may, subject to section 4.0804(h)(2), allow the disclosure of any notification, application, or any other document, material, or memorandum supplied to the division of the court under this chapter.

(h) Amicus Curiae Briefs. When presented with significant legal issues, the division of the court may disclose sufficient information about the issues to permit the filing of timely amicus curiae briefs.

4.0804 Authority and duties of an independent prosecutor.


(a) Authorities.

Notwithstanding any other provision of law, an independent prosecutor appointed under this chapter shall have, with respect to all matters in such independent prosecutor’s prosecutorial jurisdiction established under this chapter, full power and independent authority, to exercise all investigative and prosecutorial functions and powers of the Office of the Attorney General, the Attorney General, and any other officer or employee of the Office of the Attorney General except that the Attorney General shall exercise direction or control as to those matters that specifically require the Attorney General’s personal action at common law or by statute. Such investigative and prosecutorial functions and powers shall include:

(1) conducting investigations;

(2) participating in court proceedings and engaging in any litigation, including civil and criminal matters, that such independent prosecutor considers necessary;

(3) appealing any decision of a court in any case or proceeding in which such independent prosecutor participates in an official capacity;

(4) reviewing all documentary evidence available from any source;

(5) determining whether to contest the assertion of any testimonial privilege;

(6) making applications to the court for warrants, subpoenas, or other court orders;

(7) granting immunity to any witness;

(8) inspecting, obtaining, or using the original or a copy of any tax return, in accordance with applicable statutes and regulation, and, for purposes of section 6103 of the Internal Revenue Code of 1986 and the regulations issued thereunder and the American Samoa Income Tax Act, exercising the powers vested in the Attorney General;

(9) initiating and conducting prosecutions in the High Court of American Samoa in accordance with the procedures contained in Title 46 A.S.C.A., framing and signing criminal complaints and indictments, and handling all aspects of any case, in the name of the American Samoa Government.

(b) Compensation.

(1) In general. An independent prosecutor appointed under this chapter shall receive compensation at the level of the Attorney General.

(2) Travel expenses. Except as provided in paragraph (3), an independent prosecutor and persons appointed under subsection (c) shall be entitled to the payment of travel expenses, per diem and subsistence expenses in accordance with the regulations and policies of the government and Treasurer.

(3) Travel to primary office.

(A) In general. Should the independent prosecutor not reside in American Samoa, after 1 year of service under this chapter, an independent prosecutor and persons appointed under subsection (c) shall not be entitled to the payment of travel, per diem, or subsistence expenses for the purpose of commuting to or from the city in which the primary office of the independent prosecutor or person is located. The 1-year period may be extended for successive 6-month periods if the independent prosecutor and the division of the court certify that the payment is in the public interest to carry out the purposes of this chapter.

(B) Relevant factors. In making any certification under this paragraph with respect to travel and subsistence expenses of an independent prosecutor or person appointed under subsection (c), the independent prosecutor and the division of the court shall consider, among other relevant factors:

(i) the cost to the government of reimbursing such travel and subsistence expenses;

(ii) the period of time for which the independent prosecutor anticipates that the activities of the independent prosecutor or person, as the case may be will continue;

(iii) the personal and financial burdens on the independent prosecutor or person, as the case may be, of relocating (should the independent prosecutor or appointed person not reside in American Samoa) so that travel and subsistence expenses would not be incurred, and

(iv) the burdens associated with appointing a new independent prosecutor, or appointing another person under subsection (c), to replace the individual involved who is unable or unwilling to so relocate should the independent prosecutor or person not reside in American Samoa.

(c) Additional personnel.

(1) For the purposes of carrying out the duties of an office of independent prosecutor, such independent prosecutor may appoint, fix the compensation, and assign the duties of such employees, in accordance and commensurate with government personnel classification and compensation laws and regulations, as such independent counsel considers necessary (including investigators, attorneys, and part-time consultants). Such employees shall be exempt from competitive service.

(2) Prior to such appointment, the independent prosecutor shall make a written determination that such personnel are not available for assignment from the Office of the Attorney General, the Department of Public Safety or other departments within the government due to specialized need or conflict of interest .

(d) Assistance of the Office of the Attorney General.

(1) In carrying out functions. An independent prosecutor may request assistance from the Office of the Attorney General in carrying out the functions of the independent prosecutor, and the Office of the Attorney General shall provide that assistance, which may include access to any records, files, or other materials relevant to matters within such independent prosecutor’s prosecutorial jurisdiction, and the use of the resources and personnel necessary to perform such independent prosecutor’s duties. At the request of an independent prosecutor, prosecutors administrative personnel, and other employees of the Office of the Attorney General may be detailed to the staff of the independent prosecutor.

(2) Payment of and reports on expenditures of independent prosecutor. The Office of the Attorney General shall pay all costs relating to the establishment and operation of any office of independent prosecutor. The Attorney General shall include within the budge of the Department of Legal Affairs such sums reasonable estimated to be necessary to support the office of independent prosecutor. The Attorney General shall submit to the Legislature, not later than 30 days after the end of each fiscal year a report on amounts paid during that fiscal year for expenses of investigations and prosecutions by any independent prosecutor. Each such report shall include a statement of all payments made for activities of independent prosecutor but may not reveal the identity or prosecutorial jurisdiction of any independent prosecutor which has not been disclosed under section 4.0803(b)(4).

(e) Referred of other matters to an independent prosecutor. An independent prosecutor may ask the Attorney General or the division of the court to refer to the independent prosecutor matters related to the independent prosecutor’s prosecutorial jurisdiction, and the Attorney General or the division of the court, as the case may be, may refer such matters. If the Attorney General’s own initiative, the independent prosecutor may accept such referral if the matter relates to the independent prosecutor’s prosecutorial jurisdiction. If the Attorney General refers any matter to the independent prosecutor pursuant to the independent prosecutor’s request, or if the independent prosecutor accepts a referral made by the Attorney General on the Attorney General’s own initiative, the independent prosecutor shall so notify the division of the court.

(f) Compliance with policies of the Office of the Attorney General. An independent prosecutor shall, except to the extent that to do so would be inconsistent with the purposes of this chapter, comply with the written or other established policies of the Office of the Attorney General respecting enforcement of the criminal laws. To determine these policies and policies under 4.0802 (c)(1)(B), the independent prosecutor shall, except to the extent that doing so would be inconsistent with the purposes of this chapter, consult with the Attorney General.

(g) Dismissal of matters.

The independent prosecutor shall have full authority to dismiss matters within the independent prosecutor’s prosecutorial jurisdiction without conducting an investigation or on any subsequent time before prosecution, if to do so would be consistent with the written or other established policies of the Office of the Attorney General or the laws of the Territory with respect to the enforcement of criminal laws.

(h) Reports by Independent Prosecutor.

(1) Required reports. An independent prosecutor shall:

(A) file with the division of the court, with respect to the 6-month period beginning on the date of his or her appointment and with respect to each 6-month period thereafter until the office of that independent prosecutor terminates, a report which identifies and explains major expenses, and summarizes all other expenses, incurred by that office during the 6-month period with respect to which the report is filed, and estimates future expenses of that office; and

(B) before the termination of the independent prosecutor’s office under section 4.0806(b), file a final report with the division of the court, setting forth fully and completely a description of the work of the independent prosecutor, including the disposition of all cases brought.

(2) Disclosure of information in reports. The division of the court may release to the Legislature, the public, or any appropriate person, such portions of a report made under this subsection as the division of the court considers appropriate. The division of the court shall make such orders as re appropriate to protect the rights of any individual named in such report and to prevent undue interference with any pending prosecution. The division of the court may make any portion of a final report filed under paragraph (1)(B) available to any individual named in such report for the purposes of receiving within a time limit set by the division of the court any comments or factual information that such individual may submit. Such comments and factual information, in whole or in part, may, in the discretion of the division of the court, be included as an appendix to such final report.

(3) Publication of reports. At the request of an independent prosecutor, the Department of Administrative Services shall cause to be printed any report previously released to the public under paragraph (2). The independent prosecutor shall certify the number of copies necessary for the public, and the Department of Administrative Services shall place the cost of the required number to the debit of such independent prosecutor.

Additional copies shall be made available to the public through the deposit in the Feleti Barstow Public Library and the Territorial Office of Archives.

(i) Independence from Office of the Attorney General.

Each independent prosecutor appointed under this chapter, and the persons appointed by that independent prosecutor under subsection, (c) are separate from and independent of the Office of the Attorney General.

(j) Standards of conduct applicable to Independent Prosecutor, persons serving in the Office of an Independent Prosecutor, and their law firms.

(1) Restriction on employment while independent prosecutor and appointees are serving.

(A) During the period in which an independent prosecutor is serving under this chapter:

(i) such independent prosecutor, and

(ii) any person associated with a firm with which such independent prosecutor is associated, may not represent in any matter any person involved in any investigation or prosecution under this chapter.

(B) During the period in which any person appointed by an independent prosecutor under subsection (c) is serving in the office of independent prosecutor, such person may not represent in any matter any person involved in any investigation or prosecution under this chapter.

(2) Past employment restrictions on independent prosecutor and appointees.

(A) Each independent prosecutor and each person appointed by that independent prosecutor under subsection (c) may not for 3 years following the termination of the service under this chapter of that independent prosecutor or appointed person, as the case may be, represent any person in any matter if that individual was the subject of an investigation or prosecution under this chapter that was conducted by that independent prosecutor.

(B) Each independent prosecutor and each person appointed by that independent prosecutor under subsection (c) may not, for 1 year following the termination of the service under this chapter of that independent prosecutor or appointed person as the case may be, represent any person in any matter involving any investigation or prosecution under this chapter.

(3) One-year ban on representation by members of firms of independent prosecutor. Any person who is associated with a firm with which an independent prosecutor is associated or becomes associated after termination of the service of that independent prosecutor under this chapter may not, for 1 year following such termination, represent any person in any matter involving any investigation or prosecution under this chapter.

(4) Definitions. For purposes of this subsection:

(A) the term “firm” means a law firm whether organized as a partnership or corporation; and

(B) a person is “associated” with a firm if that person is an officer, director, partner, or other member or employee of that firm.

(5) Enforcement. The High Court of American Samoa shall have authority to enforce compliance with this subsection.

(k) Custody of Records of an Independent Prosecutor.

(1) Transfer of records. Upon termination of the office of an independent prosecutor, that independent prosecutor shall transfer to the Office of Archives all records which have been created or received by that office.

(2) Maintenance, use, and disposal of records. Records transferred to the Archivist under this chapter shall be maintained, used, and disposed of in accordance with rules and regulations of the Office of Archives, but in any event shall be retained for a minimum of five years following their delivery.

(3) Access to records.

(A) In general. Subject to paragraph (4), access to the records transferred to the Archivist under this chapter shall be governed by rules and regulations of the Archivist and the Attorney General. In the event of conflict between the rules of the Archivist and the Attorney General the rules of the Attorney General shall prevail.

(B) Access by Office of the Attorney General. The Archivist shall, upon written application by the Attorney General, disclose any such records to the Office of the Attorney General for purposes of an ongoing law enforcement investigation or court proceeding.

(C) Exception. Notwithstanding any restriction on access imposed by law, the Archivist and persons employed by the Office of Archives who are engaged in the performance of normal archival work shall be permitted access to the records transferred to the Archivist under this chapter.

(4) Records provided by the Legislature. Records of an investigation conducted by a committee of the House of Representatives or the Senate which are provided to an independent prosecutor to assist in an investigation or prosecution conducted by that independent prosecutor:

(A) shall be maintained as a separate body of records within the records of the independent prosecutor; and

(B) shall, after the records have been transferred to the Archivist under this chapter, be made available, except as provided in paragraph (3)(B) and (C), in accordance with the rules governing release of the records of the Chamber of the Legislature which provided the records to the independent prosecutor. Subparagraph (B) shall not apply to those records which have been surrendered pursuant to court proceedings.

(l) Cost and Administrative Support.

(2) Cost controls.

(A) In general. An independent prosecutor shall:

(i) conduct all activities with due regard for expense;

(ii) authorize only reasonable and lawful expenditures; and

(iii) promptly upon taking office, assign to a specific employee the duty of certifying that expenditures of the independent prosecutor are reasonable and made in accordance with law.

(B) Liability for invalid certification. An employee making a certification under subparagraph (A)(iii) shall be personally liable for an invalid certification.

(C) Expenditure of funds. An independent prosecutor shall comply with the laws and regulations of the government respecting expenditures of funds, except to the extent that compliance would be inconsistent with the purposes of this chapter.

(2) Administrative support. The Treasurer and the Director of the Office of Planning and Budget shall provide administrative support and guidance to each independent prosecutor regarding expenditures and cost controls. No officer or employee of the Department of Treasury or Office of Planning and Budget shall disclose information related to an independent prosecutor’s expenditures, personnel, or administrative acts or arrangements without the authorization of the independent prosecutor.

(3) Office space. The Director of the Department of Administrative Services shall promptly provide appropriate office space for each independent prosecutor. Such office space shall be within a government building unless the Director of the Department of Administrative Services determines that other arrangements would cost less or that adequate government office space is not available.

4.0805 Legislative oversight.


(a) Oversight of Conduct of Independent Prosecutor.

(1) Legislative oversight. The appropriate committees of the Legislature shall have oversight jurisdiction with respect to the official conduct of any independent prosecutor appointed under this chapter, and such independent prosecutor shall have the duty to cooperate with the exercise of such oversight jurisdiction.

(2) Reports to Legislature. An independent prosecutor appointed under this chapter shall submit to the Legislature annually a report on the activities of the independent prosecutor, including a description of the progress of any investigation or prosecution conducted by the independent prosecutor. Such report may omit any matter that in the judgment of the independent prosecutor should be kept confidential, but shall provide information adequate to justify the expenditures that the office of the independent prosecutor has made.

(b) Oversight of Conduct of Attorney General. Within 15 days after receiving an inquiry about a particular case under this chapter, which is a matter of public knowledge, from a committee of the Legislature with jurisdiction over this chapter, the Attorney General shall provide the following information to that committee with respect to that case.

(1) When the information about the case was received.

(2) Whether a preliminary investigation is being conducted, and if so, the date it began.

(3) Whether an application for the appointment of an independent prosecutor or a notification that further investigation is not warranted has been filed with the division of the court, and if so, the date of such filing.

(c) Information Relating to Impeachment. An independent prosecutor shall advise the House of Representatives of any substantial and credible information which such independent prosecutor receives, in carrying out the independent prosecutor’s responsibilities under this chapter, that may constitute grounds for an impeachment. Nothing in this chapter or section 4.0810 of this title shall prevent the Legislature or either Chamber thereof from obtaining information in the course of an impeachment proceeding.

4.0806 Removal of an independent prosecutor-Termination of office.


(a) Removal, report on removal.

(1) Grounds for removal. An independent prosecutor appointed under this chapter may be removed from office only by the personal action of the Attorney General and only for good cause, physical or mental disability (if not prohibited by law protecting persons from discrimination on the basis of such a disability), or any other condition that substantially impairs the performance of such independent prosecutor’s duties.

(2) Report to division of the court and Legislature. If an independent prosecutor is removed from office, the Attorney General shall promptly submit to the division of the court and the Committees on the Judiciary of the Senate and the House of Representatives a report specifying the facts found and the ultimate grounds for such removal. The committees shall make available to the public such report, except that each committee may, if necessary to protect the rights of any individual named in the report or to prevent undue interference with any pending prosecution postpone or refrain from publishing any or all of the report. The division of the court may release any or all of such report in accordance with section 4.0804(h)(2).

(3) Judicial review of removal. An independent prosecutor removed from office may obtain judicial review of the removal in a civil action commenced in the High Court of American Samoa. A member of the division of the court may not hear or determine any such civil action or any appeal of a decision in any such civil action. The independent prosecutor may be reinstated or granted other appropriate relief by order of the court.

(b) Termination of Office.

(1) Termination by action of independent prosecutor. An office of independent prosecutor shall terminate when:

(A) the independent prosecutor notifies the Attorney General that the investigation of all matters within the prosecutorial jurisdiction of such independent prosecutor or accepted by such independent prosecutor under section 4.0804(e), and any resulting prosecutions, have been completed or so substantially completed that it would be appropriate for the Office of the Attorney General to complete such investigations and prosecutions; and

(B) the independent prosecutor files a final report in compliance with section 4.0804(h)(1)(B).

(2) Termination by division of the court. The division of the court, either on its own motion or upon the request of the Attorney General, may terminate an office of independent prosecutor at any time, on the ground that the investigation of all matters within the prosecutorial jurisdiction of such independent prosecutor or accepted by such independent prosecutor under section 4.0804(c), and any resulting prosecutions, have been completed or so substantially completed that it would be appropriate for the Office of the Attorney General to complete such investigations and prosecutions. At the time of such termination the independent prosecutor shall file the final report required by section 4.0804(h)(1)(B). If the Attorney General has not made a request under this paragraph, the division of the court shall determine on its own motion whether termination is appropriate under this paragraph no later than 2 years after the appointment of an independent prosecutor, at the end of the succeeding 2-year period, and thereafter at the end of each succeeding 1-year period.

(c) Audits.

(1) On or before June 30 of each year, an independent prosecutor shall prepare a statement of expenditures for the 6 months that ended on the immediately preceding March 31. On or before December 31 of each year, an independent prosecutor shall prepare a statement of expenditures for the fiscal year that ended on the immediately preceding September 30. An independent prosecutor whose office is terminated prior to the end of the fiscal year shall prepare a statement of expenditures on or before the date that 90 days after the date on which the office is terminated.

(2) The Territorial Auditor shall:

(A) conduct a financial review of a mid-year statement and a financial audit of a year-end statement and statement on termination, and

(B) report the results to the Committees on the Judiciary of the Senate and House of Representatives not later than 90 days following the submission of each such statement.

4.0807 Relationship with Office of the Attorney General.


(a) Suspension of other investigations and proceedings. Whenever a matter is in the prosecutorial jurisdiction of an independent prosecutor or has been accepted by an independent prosecutor under section 4.0804(e), the Attorney General, and all other officers and employees of the Office of the Attorney General shall suspend all investigations and proceedings regarding such matter, except to the extent required by section 4.0804(d)(1), and except insofar as such independent prosecutor agrees in writing that such investigation or proceedings may be continued by the Office of the Attorney General.

(b) Presentation as Amicus Curiae Permitted. Nothing in this chapter shall prevent the Attorney General from making a presentation as amicus curiae to the court as to issues of law raised by any case or proceeding in which an independent prosecutor participates in an official capacity or any appeal of such a case or proceeding, except in the event the Attorney General is the subject of the case or proceeding.

4.0808 Severability.


If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of this chapter and the application of such provision to other persons not similarly situated or to other circumstances shall not be affected by such invalidation.

4.0809 Assignment of judges to division to appoint independent prosecutor.


(a) Appointing division. Beginning with the two-year period commencing on the effective date of this section, three justices, associate judges or district court judges shall be assigned for each successive two-year period to a division of the High Court of American Samoa to be the division of the court for the purpose of appointing independent prosecutors. The Clerk of the High Court shall serve as the clerk of such division of the court and shall provide such services as are needed by such division of the court.

(b) Other judicial assignments. Except as provided under subsection (e) of this section, assignment to such division of the court shall not be a bar to other judicial assignments during the term of such division.

(c) Assignment. The Chief Justice shall designate and assign three justices, associate judges or District Court judges to such division of the court. The Chief Justice may assign himself and/or retired justices and judges to the division.

(d) Vacancies. Any vacancy in such division of the court shall be filled only for the remainder of the two-year period in which such vacancy occurs and in the same manner as initial assignments to such division were made.

(e) Recusal. Except as otherwise provided in this chapter, no member of such division of the court who participated in a function conferred on the division under this chapter involving an independent prosecutor shall be eligible to participate in any judicial proceeding concerning a matter which involves such independent counsel while such independent prosecutor is serving in that office of which involves the exercise of such independent prosecutor’s official duties regardless of whether such independent prosecutor is still serving in that office.