Opposition Brief — North v. Walsh

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Court, U.S.

{LED

DEC 28 WOT

F. SPANIOL, JR

No. 87-869

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

OLIVER L. NoRTH,

Petitioner,

LAWRENCE E. WALSH, INDEPENDENT COUNSEL,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION FOR RESPONDENT.

LAWRENCE E. WALSH, INDEPENDENT COUNSEL

PAUL L. FRIEDMAN

(Counsel of Record)

Guy MILLER STRUVE

JEFFREY R. TOOBIN

OFFICE OF INDEPENDENT COUNSEL

Suite 701 West

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 383-8940

Attorneys for Respondent

Lawrence E. Walsh,

Independent Counsel

December 28, 1987

| aE STEEP TE Ee

WILSON - Eras Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. May petitioner defy a grand jury subpoena calling

for unprivileged information on the ground that Inde-

pendent Counsel—who was appointed by the Attorney

General and may be removed from office by him—is not

an “inferior Officer” who may be appointed by the At-

torney General under Article II of the Constitution?

2. Having executed appointment forms pursuant to

the Independent Counsel statute, were Associate Inde-

pendent Counsel required to submit a second set of ap-

pointment forms in order to conduct the same investiga-

tion pursuant to the esseritially identical terms of the

Attorney General’s regulation?

3. Does petitioner’s unsupported assertion that the

possibility of judicial review of a possible removal of

Independent Counsel by the Attorney General generates

a “here-and-now subservience” of Independent Counsel

to the judiciary render the constitutionality of the Inde-

pendent Counsel statute ripe for review?

4. Is petitioner’s pre-indictment attack on the au-

thority of Independent Counsel to conduct an ongoing

grand jury investigation ripe for review?

(i)

Acbaieiie Re tAab ie’ me

TABLE OF CONTENTS

QUESTIONS PRESENTED .......000..00...000020002002e eee

TABLE OF AUTHORITIES ..................2....2.....0..22-.-0--

STATEMENT OF THE CASE ......W0.022.222...2.-..-. eee

The Attorney General’s Application for Ap-

pointment of an Independent Counsel .................

The Court’s Appointment of Independent Coun-

The Attorney General’s Parallel Appointment

of Independent Counsel ..........................0........00....

. North’s Two Actions Seeking to Enjoin Inde-

pendent Counsel’s Investigation —..............00........

. North’s Present Attack Upon the Authority of

Independent Counsel .............0002.22202.222---2.cee econ eee

REASONS FOR DENYING THE WRIT............0........

I. THE ATTORNEY GENERAL HAD LEGAL

AUTHORITY, CONSISTENT WITH ARTI-

CLE II OF THE CONSTITUTION, TO DELE-

GATE THE POWERS CONVEYED TO IN-

DEPENDENT COUNSEL BY THE ATTOR-

NEY GENERAL’S REGULATION .................

A. The Attorney General’s Regulation Is Sub-

stantially Identical to the Watergate Special

Prosecutor Regulation Upheld by This Court

in United States v. Nixon ..................-.....00000---

B. An Independent Counsel Appointed and Re-

movable by the Attorney General Is Not a

“Superior Officer’ Under Article II of the

a uaanecniidaken mAiwienn

TABLE OF CONTENTS—Continued

Page

II. INDEPENDENT COUNSEL AND ASSOCI-

ATE COUNSEL WERE PROPERLY AP-

POINTED IN COMPLIANCE WITH 28

hese, SONNE venncnincesccnnnenidandasstiodennteltustaapaalaliifliiaess 16

Ill. THE DECISION OF THE COURT BELOW

NOT TO REACH PETITIONER’S CHAL-

LENGE TO THE CONSTITUTIONALITY OF

THE INDEPENDENT COUNSEL STATUTE

IS FULLY CONSISTENT WITH THIS

COURT’S DECISION IN BOWSHER vx.

PIONS csi cascecieeiviniseeanenienellipnaimiamamiatntans 20

IV. PETITIONER’S ATTACK UPON AN ON-

GOING GRAND JURY INVESTIGATION IS

i ae hy i ek speeeielneomeneneennee 22

III sec ccnscrtencivanmeteosinmnonacineneeetiiathshaciuabiamaroniitiielae 23

TABLE OF AUTHORITIES

CASES Page

Ashwander v. TVA, 297 U.S. 288 (1936) .............. 21-22

Blair v. United States, 250 U.S. 273 (1919)........ 22

Bowsher v. Synar, 106 S. Ct. 3181 (1986) —.......... 20-22

“Buckley v. Valeo, 424 U.S. 1 (1976) -.....220222 2. 14

Ex parte Siebold, 100 U.S. 371 (1880) 0.000... 15-16

Humphrey’s Executor v. United States, 295 U.S.

IE I sree ee eae oe oe 15, 20

In re Oliver L. North, et al., Div. No. 86-6, Dec.

ihn cutee hdteincensaeseee tee 3, 4, 5

In re Sealed Case, Misc. No. 87-0139 (D.D.C. July

De TE ak ostcesie ties pees 7

In re Sealed Case, 827 F.2d 776 (D.C. Cir. 1987).. 6,7

In re Sealed Case, 829 F.2d 5€ (D.C. Cir. 1987) ....5, 7,18

North v. Walsh, 656 F. Supp. 414 (D.D.C. 1987),

aff'd, No. 87-5058 (D.C. Cir. Oct. 1, 1987) ........ 6

United States v. Calandra, 414 U.S. 338 (1974)... 22

United States v. Dionisio, 410 U.S. 1 (1973) .......... 22-23

United States v. Eaton, 169 U.S. 331 (1898) -......... 16

United States v. Germaine, 99 U.S. 508 (1879)... 14

United States v. Locke, 471 U.S. 84 (1985) _.......... 21

United States v. Nixon, 418 U.S. 683 (1974)..2, 8, 9-13, 16

United States v. Perkins, 116 U.S. 483 (1886) _..... 15

United States v. Prueitt, 540 F.2d 995 (9th Cir.

1976), cert. denied, 429 U.S. 1063 (1977)........ 19

United States v. Ryan, 402 U.S. 530 (1971)........ 22

United States v. Solomon, 216 F. Supp. 835

CIs Win: POPU chiciccnnicocacetbcel sds actcstasanebalaatacn adnan cena Eilat 14

Wiener v. United States, 357 U.S. 349 (1958)... 15

UNITED STATES CONSTITUTION

MI, slice as ac pecccrnennitdinnsstisdaiiinmicndercesbeatstamtala 9, 12

AgGele Ti, Beetion 2, Cimuse @ ..........:0.-....0.00000.....-..... 8, 13-16

STATUTES AND REGULATIONS

8 I ...ae ie ee ee RnND mR SOREN OIE 8, 9, 10

- yt |S 9 Seer ecm eee Os 8, 9, 10, 12

BS EN eee wT 8,9, 10, 12

GE I PI eins cecssasinsscoephlslgiabentleconpeeeanall 8, 9, 12, 16-20

TABLE OF AUTHORITIES—Continued

Page

gk FR | ash A eeeee a Ree SS eM 12

Be Rely Sb D dncitecteensermnensinnsisareneaedamaal 12

Ethics in Government Act of 1978, 28 U.S.C. § 591

i icdiinttdebiesitincbienicnenitacicsenacl 3, 4, 5, 7, 8-9, 17-18, 20-22

RT erage ee rea et 22 .

ype BR passim

38 Fed. Reg. 20738 (Nov. 7, 1973), as amended

by 38 Fed. Reg. 32805 (Nov. 28, 1973) -............ 10-11, 12

52 Fed. Reg. 7270 (March 10, 1987)........................... 4,9, 17

52 Fed. Reg. 9241 (March 23, 1987) .......................... 4,9

es Ie ST Gites iakinitstsiciacce haces tondiearstisedinbieiohiiiaaaaat 16

OTHER AUTHORITIES

S. Johnson, A Dictionary of the English Language

in Which the Words Are Deduced from Their

RN Es 15

Oxford English Dictionary (1933) ..........00.....00...... 15

Watergate Special Prosecution Force Report

CRIED ° ncessnesiencécieedipedeietidetaddatiaaiecoaae ann 10

22 Weekly Comp. Pres. Doc. (1986) ...........000000000000... 2,4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-869

OLIVER L. NORTH,

Petitioner,

Vv.

LAWRENCE E. WALSH, INDEPENDENT COUNSEL,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

LAWRENCE E. WALSH, INDEPENDENT COUNSEL

Lawrence E. Walsh, Independent Counsel, respectfully

requests that this Court deny the petition for a writ of

certiorari seeking review of the decision of the United

States Court of Appeals for the District of Columbia

Circuit which upheld the Attorney General’s appointment

of Independent Counsel (Pet. App. A).’ As described

below, the power of the Attorney General to appoint

Independent Counsel to conduct a criminal investigation

1The Petition for Writ of Certiorari and the Appendices to

the Petition are cited herein as “Pet.” and “Pet. App.,” respectively.

ile

has been established since the time of Watergate, see

United States v. Nixon, 418 U.S. 683, 692-97 (1974),

and there is no need for further review of this issue by

this Court.

STATEMENT OF THE CASE

A. The Attorney General’s Application for Appointment of

an Independent Counsel

On November 25, 1986, President Reagan announced

that the preceding Friday, after becoming concerned as

to whether the national security apparatus had provided

him with a complete factual record respecting the imple-

mentation of his policy toward Iran, he had directed

Attorney General Edwin Meese III to conduct a review

of the matter over the weekend. 22 Weekly Comp. Pres.

Doc. 1604 (1986). The President further stated that he

had concluded that certain activities undertaken in this

connection raised “serious questions of propriety,” that

“(djetermination of the full details of this action will

require further review and investigation by the Depart-

ment of Justice,” and that he anticipated receiving a

report from the Attorney General at the earliest possible

date. Jd. The President also announced that petitioner

Oliver L. North had been relieved of his duties on the

National Security Council staff. Jd.

On December 2, 1986, one week after the initial an-

nouncement of the Justice Department’s investigation,

Attorney General Meese announced that he had con-

cluded that he should apply for the appointment of an

Independent Counsei. The Attorney General stated that

“(tlhis step is being taken with the full encouragement

and support of the President-” He also suggested that a

possible conflict of interest might result if the Depart-

ment of Justice continued the investigation and that the

national interest would be served by the appointment of

an outside counsel:

“T would note that the independent counsel stat-

ute allows for the appointment of a counsel, not just

for ‘covered persons’ within the meaning of the

statute, but for any other individuals who may be

involved, where a possible conflict of interest might

result if the Department of Justice continues the in-

vestigation, particularly where the national interest

would thus be served by the appointment of an out-

side counsel to do so.”

On December 4, 1986, the Attorney General filed an

application for appointment of an Independent Counsel

with the Division for the Purpose of Appointing Inde-

pendent Counsels of the United States Court of Appeals

for the District of Columbia Circuit (the “Special Divi-

sion”). In his application to the Special Division, the

Attorney General expressly stated that an Independent

Counsel should be appointed pursuant to 28 U.S.C.

§$591(c) (Pet. App. 88a), which provides for the ap-

pointment of an Independent Counsel “if the Attorney

General determines that investigation . . . by the Attor-

ney General or other officer of the Department of Justice

may result in a personal, financial or political conflict of

interest.”

B. The Court’s Appointment of Independent Counsel

On December 19, 1986, the Special Division issued an

order appointing Lawrence E. Walsh as Independent

Counsel in the Iran/Contra matter. Order Appointing

Independent Counsel, In re Oliver L. North, et al., Div.

No. 86-6, Dec. 19, 1986. As requested by the Attorney

General, the Special Division authorized the Independent

Counsel to investigate possible violations of federal crim-

inal law by petitioner North, other United States Gov-

ernment officials, and individuals acting in concert with

them. On December 19, 1986, Mr. Walsh accepted his

appointment by signing an appointment affidavit and

taking an oath of office.”

2 Mr. Walsh’s appointment affidavit is Exhibit 2 to the Affidavit

of Guy Miller Struve, Associate Independent Counsel, sworn to on

iil

President Reagan issued a statement in which he wel-

comed the appointment of Independent Counsel Walsh,

and called for the completion of the Independent Coun-

sel’s investigation at the earliest possible time. 22

Weekly Comp. Pres. Doc. 1658 (1986). The President

stated that “Mr. Walsh has my promise of complete co-

operation, and I have instructed all members of my ad-

ministration to cooperate fully with the investigation in

order to ensure full and prompt disclosure.” /d.

C. The Attorney General’s Parallel Appointment of Inde-

pendent Counsel

On March 5, 1987, after petitioner had brought a civil

action challenging the constitutionality of the Independ-

ent Counsel provisions of the Ethics in Government Act

(as described below), Attorney General Meese issued a

regulation, 28 C.F.R. Parts 600 and 601, which created

an “Office of Independent Counsel: Iran/Contra” and

provided that office with the same jurisdiction and powers

that it already possessed under the Ethics in Govern-

ment Act and the December 19, 1986 court order ap-

pointing Independent Counsel. 52 Fed. Reg. 7270 (March

10, 1987), 9241 (March 28, 1987) (Pet. App. 76a-86a).

The Attorney General stated that his purpose in issu-

ing the regulation was “to make certain that the neces-

sary investigation and appropriate legal proceedings can

proceed in a timely manner.” 52 Fed. Reg. at 7271 (Pet.

App. 76a-77a). He emphasized that the regulation was

“not meant to question the independence or authority of

the Independent Counsel appointed under the Act or to

interfere in any way with his activities.” 52 Fed. Reg.

at 7270-71 (Pet. App. 76a). As the Department of Jus-

tice reaffirmed in its amicus curiae brief in the court

below, under the Attorney General’s regulation Inde-

June 29, 1987 and filed with the district court in this case. The

Struve Affidavit (“Struve Aff.”) and its exhibits are a part of the

record in the court of appeals.

pendent Counsel possesses the full authority conferred

by his court appointment. See Brief on Behalf of Amicus

Curiae United States at 6-7, In re Sealed Case, 829 F.2d

50 (D.C. Cir. 1987). The Attorney General’s regulation

confirmed in the same terms as the Independent Counsel

statute and the court order the nature and scope of Inde-

pendent Counsel’s authority, his independence, the limita-

tions on his removal, and the scope of his investigation.*

On the same day as he issued the Independent Coun-

sel regulation, Attorney General Meese appointed Law-

rence EK. Walsh as Independent Counsel: Iran/Contra.

Mr. Walsh accepted this appointment by signing an ap-

pointment affidavit which specified the “Department or

agency” in which he was being appointed as “Office of the

Independent Counsel: Iran/Contra” (see Struve Aff., par.

6 & Ex. 5).

D. North’s Two Actions Seeking to Enjoin Independent

Counsel’s Investigation

On February 24, 1987, less than one month after the

grand jury was empanelled, petitioner North brought an

action for declaratory and injunctive relief. North v.

Walsh, D.D.C., Civil Action No. 87-0457 (“North I’).

He asserted that the Independent Counsel provisions of

the Ethics in Government Act should be declared uncon-

stitutional and sought to halt the investigation.

On March 6, 1987, the day after the Attorney Gen-

eral’s parallel appointment of Independent Counsel, peti-

tioner filed a second complaint. North v. Meese, D.D.C.,

Civil Action No. 87-0626 (“North II”). He now con-

tended that the Attorney General’s appointment of Mr.

3’ Compare 28 C.F.R. § 600.1 (Authority and duties of an Inde-

pendent Counsel) (Pet. App. 78a-8la) with 28 U.S.C. § 594 (Pet.

App. 92a-95a) (same), and compare 28 C.F.R. § 601.1 (Jurisdiction

of the Independent Counsel: Iran/Contra) (Pet. App. 84a-86a)

with December 19, 1986 Order, pp. 1-3 (same).

Walsh as Independent Counsel under the regulation vio-

lated the Constitution and laws of the United States.

In North I, petitioner objected to the Court appointment

and statutory authorization of an Independent Counsel,

but claimed that Executive appointment of an Independ-

ent Counsel would be appropriate. In North II, peti-

tioner objected to the Executive appointment of an Inde-

pendent Counsel.

On March 12, 1987, the district court dismissed both

of petitioner’s complaints, concluding that North’s pre-

indictment challenges were premature and that he, “like

any other potential criminal defendant, can raise his ob-

jections by appropriate motions, if and when an indict-

ment is entered.” North v. Walsh, 656 F. Supp. 414,

423 (D.D.C. 1987) (emphasis in original). On October

1, 1987, the court of appeals summarily affirmed that

decision, holding that petitioner “has impermissibly at-

tempted to attack collaterally a pending criminal investi-

gation through the maintenance of a separate civil ac-

tion . . . [Pjotential criminal defendants cannot, by

bringing ancillary equitable proceedings, cireumvent fed-

eral criminal procedure.” North v. Walsh, No. 87-5058

(D.C. Cir. Oct. 1, 1987) (per curiam) (quotation

omitted).

E. North’s Present Attack Upon the Authority of Independ-

ent Counsel

On April 7, 1987, petitioner North was served with a

grand jury subpoena calling for certain unprivileged in-

formation described more fully in sealed portions of the

record in the courts below.‘ North refused to produce

the requested information and was held in civil contempt.

*The facts and law relating to the unprivileged information

sought by the grand jury are discussed at pages 8-10 and 13-15 of

Respondent's Brief for Appellee on Ripeness Issues filed under seal

in the court of appeals. Jn re Sealed Case, 827 F.2d 776 (D.C. Cir.

1987). A copy of this brief has been lodged with the Clerk of this

Court under seal for the Court’s information.

On June 8, 1987, the court of appeals held that North’s

challenge to the authority of Independent Counsel was

ripe for judicial review in this context and remanded the

proceeding to the district court to determine the merits

of the challenge. In re Sealed Case, 827 F.2d 776 (D.C.

Cir. 1987) (Pet. App. 66a-73a). The court directed the

district court to resolve the matter, if possible, without

reaching the question of the constitutionality of the

Ethics in Government Act (Pet. App. 74a-75a).

On July 10, 1987, Chief Judge Aubrey E. Robinson,

Jr. of the United States District Court for the District

of Columbia upheld the authority of Independent Counsel

under the Attorney General’s regulation, and found it un-

necessary to reach the constitutionality of the statute.

In re Sealed Case, Misc. No. 87-0139 (D.D.C. July 10,

1987) (Pet. App. 42a-51a).

On August 20, 1987, a panel of the court of appeals

affirmed the order of the district court in an opinion by

Circuit Judge D. H. Ginsburg. In re Sealed Case, 829

F.2d 50 (D.C. Cir. 1987) (Pet. App. 1a-40a). All three

judges agreed that Independent Counsel and his subor-

dinates have legal authority to pursue the investigation

in the Iran/Contra matter under the Attorney General’s

regulation (Pet. App. 10a-23a, 28a). The majority held

further that nothing in the relationship between Inde-

pendent Counsel and the Special Division of the court of

appeals called for review of the constitutionality of the

Independent Counsel provisions of the Ethics in Govern-

ment Act (Pet. App. 23a-29a). Judge Williams dissented

in part, on the ground that North’s constitutional chal-

lenge to the Independent Counsel statute was ripe for

determination (Pet. App. 32a-40a).

On October 23, 1987, the court of appeals, en banc,

denied petitioner’s suggestion for rehearing en banc, not-

ing that no member of the court had requested the taking

of a vote thereon (Pet. App. 64a).

REASONS FOR DENYING THE WRIT

As the court of appeals unanimously and correctly

held, the Attorney General had the legal authority to

issue his Independent Counsel regulation pursuant to 5 ©

U.S.C. § 301 and 28 U.S.C. §§ 509, 510, and 515. The

statutory authority of the Attorney General to appoint

a special prosecutor was squarely upheld by this Court

in United States v. Nixon, 418 U.S. 688, 692-97 (1974),

and the functions delegated to Independent Counsel

Walsh by regulation are virtually identical to those dele-

gated to the Watergate Special Prosecutor by regulation.

Furthermore, contrary to petitioner’s contention, Inde-

pendent Counsel is not a “superior oificer” who must be

appointed by the President with the advice and consent

of the Senate under the Appointments Clause (Article

II, Section 2, Clause 2) of the United States Constitu-

tion, and the Attorney General may validly limit by reg-

ulation his own power to remove the Independent Counsel.

Appropriate authority has been properly vested in In-

dependent Counsel and his Associate Counsel pursuant to

the Attorney General’s regulation. The appointment

forms and oaths executed pursuant to the Independent

Counsel statute are sufficient as appointments and oaths

pursuant to the identical terms of the Independent Coun-

sel regulation. Consistent with 28 U.S.C. § 515, the At-

torney General by his regulation has given “specific di-

rect{ion]”’ that Independent Counsel and his staff con-

‘inue their investigation. None of the cases interpreting

28 U.S.C. § 515 requires a particular form of direction.

The court of appeals also properly declined to address

the constitutionality of the Independent Counsel provi-

sions of the Ethics in Government Act, since the Attor-

ney General’s parallel appointment furnishes an inde-

pendent and sufficient basis for the authority of Inde-

pendent Counsel in this case. The mere claim of a sep-

aration of powers violation does not make the constitu-

tionality of the statute ripe for review. North has suf-

fered no legal injury sufficient to require this Court to

reach out to decide the constitutionality of an act of

Congress.

Finally, the court of appeals, in a threshold ruling in

this case, held that petitioner, the recipient of a valid

grand jury subpoena calling for unprivileged informa-

tion, could properly challenge the authority of the pros-

ecutor conducting the grand jury investigation prior to

indictment. This ruling squarely conflicts with this

Court’s longstanding reluctance to interfere with on-

going grand jury investigations.

I. THE ATTORNEY GENERAL HAD LEGAL AUTHOR-

ITY, CONSISTENT WITH ARTICLE II OF THE

CONSTITUTION, TO DELEGATE THE POWERS

CONVEYED TO INDEPENDENT COUNSEL BY

THE ATTORNEY GENERAL’S REGULATION

In issuing his regulation, the Attorney General ex-

pressly relied upon his statutory authority under 5 U.S.C.

§ 301 and 28 U.S.C. §§ 509, 510, and 515, and upon “the

President’s general responsibility to enforce the laws of

the United States pursuant to Article II of the United

States Constitution... .” 52 Fed. Reg. 7270, 7271

(March 10, 1987) (Pet. App. 77a). The court of appeals

had “no difficulty concluding that the Attorney General

possessed the statutory authority to create the Office of

Independent Counsel: Iran/Contra and to convey to it

the ‘investigative and prosecutorial functions and powers’

descrived in 28 C.F.R. § 600.1(a) of the regulation.”

(Pet. App. lla.) The court’s ruling was fully consistent

with prior decisions of this Court.

A. The Attorney General’s Regulation Is Substantially

Identical to the Watergate Special Prosecutor Reg-

ulation Upheld by This Court in United States v.

Nixon

The statutory authority of the Attorney General to

appoint Independent Counsel is established by the deci-

sion of this Court in United States v. Nixon, 418 USS.

683, 692-97 (1974). In Nixon, this Court upheld the

Attorney General’s appointment of the Watergate Spe-

cial Prosecutor pursuant to 5 U.S.C. § 301 and 28 U.S.C.

§§ 509 and 510, among the same statutory provisions

relied upon by the Attorney General here. Under the

Attorney General’s regulation involved in Nixon, the

Watergate Special Prosecutor was given “full authority

for investigating and prosecuting offenses against the

United States arising out of the unauthorized entry into

Democratic National Committee headquarters at the

Watergate, all offenses arising out of the 1972 Presiden-

tial election for which the Special Prosecutor deems it

necessary and appropriate to assume responsibility, al-

legations involving the President, members of the White

House staff, or Presidential appointees, and any other

matters which he consents to have assigned to him by

the Attorney General.” 38 Fed. Reg. 30738-39 (Nov. 7,

1973), as amended by 38 Fed. Reg. 32805 (Nov. 28,

1973).

More particularly, the Watergate Special Prosecutor

was given “full authority” with respect to eight specific

functions, all of which are substantially the same as

those which petitioner challenges as impermissible ac-

tivities of the Independent Counsel here: *

(1) “Conducting proceedings before grand juries

and any other investigations he deems necessary,”

38 Fed. Reg. at 30739 (compare 28 C.F.R. § 600.1

(a) (4) (Pet. App. 78a) ) ;

(2) “Reviewing all documentary evidence avail-

able from any source, as to which he shall have full

5 The only powers enumerated in the Independent Counsel regu-

lation which were not expressly set forth in the Watergate Special

Prosecutor regulation are the power to receive national security

clearances and to contest national security assertions (28 C.F.R.

§ 600.1(a) (6) (Pet. App. 79a)) and the power to obtain tax re-

turns (28 C.F.R. § 600.1(a) (8) (Pet. App. 79a)). Both of these

powers, however, were in fact possessed and exercised by the Water-

gate Special Prosecutor. See, e.g., Watergate Special Prosecution

Force Rep. 24, 63-65, 70-71, 202-03 (1975).

access,” id. (compare 28 C.F.R. § 600.1(a) (4) (Pet.

App. 78a) ) ;

(3) “Determining whether or not to contest the

assertion of ‘Executive privilege’ or any other testi-

monial privilege,” id. (compare 28 C.F.R. § 600.1

(a) (5) (Pet. App. 79a) );

(4) “Determining whether or not application

should be made to any Federal court for a grant of

immunity to any witnesses, consistently with ap-

plicable statutory requirements, or for warrants,

subpoenas, or other court orders,” id. (compare 28

C.F.R. § 600.1(a) (7) (Pet. App. 79a) ) ;

(5) “Deciding whether or not to prosecute any

individual, firm, corporation, or group of individ-

uals,” id. ;

(6) “Initiating and conducting prosecutions, fram-

ing indictments, filing informations, and handling

all aspects of any cases within his jurisdiction

(whether initiated before or after his assumption of

duties), including any appeals,” id. (compare 28

C.F.R. § 600.i(a) (2), (3), (9) (Pet. App. 78a,

79a) );

(7) “Coordinating and directing the activities of

all Department of Justice personnel, including U.S.

Attorneys,” id.; and

(8) “Dealing with and appearing before congres-

sional committees having jurisdiction over any as-

pect of the above matters and determining what

documents, information, and assistance shall be pro-

vided to such committees.” Jd.

In Nixon, Special Prosecutor Leon Jaworski sought the

production of certain tapes and documents from Presi-

dent Nixon, who resisted production on the ground of

executive privilege. The President argued that the case

was nonjusticiable because it was simply “an intra-

branch dispute between a subordinate and superior offi-

cer of the Executive Branch and hence not subject to

judicial resolution.” 418 U.S. at 692. In rejecting this

argument, this Court, citing the very same statutes re-

lied upon by the Attorney General in issuing the regula-

tion at issue here, specifically upheld the power of the

Attorney General to confer “unique authority and ten-

ure” upon the Watergate Special Prosecutor:

“Under the authority of Art. II, § 2, Congress has

vested in the Attorney General the power to conduct

the criminal litigation of the United States Govern-

ment. 28 U.S.C. § 516. It has also vested in him

the power to appoint subordinate officers to assist

him in the discharge of his duties. 28 U.S.C. §§ 509,

510, 515, 533. Acting pursuant to those statutes, the

Attorney General has delegated the authority to

represent the United States in these particular mat-

ters to a Special Prosecutor with unique authority

and tenure. The regulation gives the Special Prose-

cutor explicit power to contest the invocation of ex-

ecutive privilege in the process of seeking evidence

deemed relevant to the performance of these spe-

cially delegated duties. 38 Fed. Reg. 30739, as

amended by 38 Fed. Reg. 32805.” 418 U.S. at 694-

95 (footnotes omitted).

The decision in United States v. Nixon establishes be-

yond question the authority of the Attorney General to

issue the regulation at issue here and to appoint Inde-

pendent Counsel Walsh.* As in Nixon, the Attorney

General properly and legitimately delegated full power

and independent authority to an independent prosecutor

to exercise investigative and prosecutorial functions with

respect to a limited series of events and occurrences; as

6 Petitioner asserts that United States v. Nixon addressed only

the issue of justiciahility and did not address the authority of the

Attorney General to delegate his law enforcement powers to the

Special Prosecutor (Pet. -15 n.10). In fact, however, this Court

held in Nixon that the controversy before it was justiciable pre-

cisely because the Attorney General had the authority to delegate

such powers to the Special Prosecutor. See 418 U.S. at 692-97.

in Nixon, Independent Counsel’s role is temporary, epi-

sodic and explicitly limited by the scope of his jurisdic-

tion as defined by the Attorney General.

B. An Independent Counsel Appointed and Removable

by The Attorney General Is Not a “Superior Officer”

Under Article II of the Constitution

Petitioner also argues that Independent Counsel Walsh

is a “superior officer” who must be appointed by the

President with the advice and consent of the Senate

under the Appointments Clause (Article II, Section 2,

Clause 2) of the United States Constitution (Pet. 9-17).

In actuality, Independent Counsel is an “inferior Offi-

cer,” whose appointment, Congress may vest, under the

express terms of the Appointments Clause (Pet. 2), “in

the President alone, in the Courts of Law, or in the

Heads of Departments.” As the head of a Department

himself appointed by the President and confirmed by the

senate, the Attorney General had authority to appoint

Independent Counsel.

As the court of appeals held (Pet. App. 13a-14a), In-

dependent Counsel under the Attorney General’s regula-

tion is clearly an “inferior Officer” because the Attorney

General has the power to rescind the regulation.’ Thus

this case does not require this Court to issue any “clarifi-

cation of the proper distinction between ‘inferior Offi-

cers’ and ‘superior’ Officers” (Pet. 16).

Petitioner’s argument that Independent Counsel is not

an “inferior Officer” is based in large part on a miscon-

7 Petitioner concedes that this holding would be correct if the

Attorney General could rescind the regulation “at will’ (see Pet.

12-13), but argues that the result would be different if such a

‘ rescission were subject to any measure of judicial review (Pet.

11-12). In other words, petitioner would have this Court grant

certiorari to issue an advisory opinion on the scope of judicial

review of a hypothetical revocation of the regulation by the At-

torney General—hardly an appropriate case for the exercise of

this Court’s certiorari jurisdiction.

ception of this Court’s decision in Buckley v. Valeo, 424

U.S. 1 (1976) (see Pet. 10-11, 16). In Buckley, the

Court held that “any appointee exercising significant au-

thority pursuant to the laws of the United States is an

‘Officer of the United States,’ and must, therefore, be ap-

pointed in the manner prescribed by” the Appointments

Clause. 424 U.S. at 126. This “significant authority”

test, however, was not intended to differentiate those

principal officers who must be appointed by the President

with the advice and consent of the Senate from the “in-

ferior Officers” who may, under the Appointments Clause,

be appointed by the President, by heads of departments,

or by the courts. Rather, the Court very clearly stated

that the “significant authority” test of Buckley was

meant only to differentiate between mere employees of

‘the Government and those “officers”—whether principal

officers or “inferior Officers’—-who were to be named

pursuant to either of the provisions of the Appointments

Clause. See 424 U.S. at 126.°

’ This is underscored by the fact that the Court in Buckley

quoted with approval the traditional standard for identifying in-

ferior as opposed to principal officers, under which “inferior Offi-

cers” are “officers inferior to those specially mentioned” in the

Appointments Clause. United States v. Germaine, 99 U.S. 508, 509-

10 (1879), quoted in Buckley, 424 U.S. at 125. Under this stand-

ard, the Independent Counsel is clearly an “inferior Officer,” be-

cause he is not an officer specially mentioned in the Appointments

Clause of the Constitution.

A prac’. al assessment of the Independent Counsel’s authority

likewise leads to the conclusion that he is an “inferior Officer.”

The Independent Counsel’s role is temporary, episodic, and ex-

plicitly limited by his mandate. Both the tenure of the office and

the scope of responsibilities are far more limited, for example,

than a United States Attorney’s continuing obiigation to prosecute

and defend all civil and criminal actions on behalf of and against

the United States in the appropriate district, and the temporary

appointment of United States Attorneys by the courts has been

upheld under the “inferior Officers” clause. See United States v.

Solomon, 216 F. Supp. 835 (S.D.N.Y. 1963).

Petitioner suggests that Independent Counsel cannot

be an “inferior Officer” because there is no “superior

officer” who can direct Independent Counsel in the ful-

fillment of his duties or who can remove Independent

Counsel at will. While he concedes that “|t]he Executive

might in some respects be limited in his ability to re-

move inferior Officers,” petitioner argues that the Exec-

utive cannot be both limited in his ability to remove and

at the same time deprived of substantive control over

decisionmaking (Pet. 13).° This argument is simply in-

consistent with the plain meaning of the Appointments

Clause, which does not require that all “inferior Officers”

be subject to or removable at will by a “superior officer”

(a term which, as the court of appeals noted (Pet. App.

13a n.32), does not appear in the Constitution). Indeed,

the word “inferior” does not necessarily mean “subordi-

nate to a superior” at all; it may (and more often does)

mean “lower in place or importance” without meaning

“subordinate.” *® Petitioner’s argument is likewise in-

consistent with the decisions of this Court, which have

not held that an “inferior Officer” must be subordinate

to the directives of a “superior officer,” or must be re-

movable at will."

® Petitioner necessarily must concede that requiring cause for

removal, as the Attorney General’s regulation does, is constitutional

under this Court’s decisions in Wiener v. United States, 357 U.S.

349, 353 (1958), Humphrey's Executor v. United States, 295 U.S.

602, 626-32 (1935), and United States v. Perkins, 116 U.S. 483,

485 (1886).

1© The 1785 edition of Dr. Johnson's dictionary demonstrates that

“subordinate” was not the primary meaning of “inferior” at the

time the Constitution was drafted; in order of preference, the

definitions of “inferior” given therein were, first, lower in place;

second, lower in station or rank of life; third, lower in value or

- excellency; and last, subordinate. S. Johnson, A Dictionary of the

English Language in Which the Words Are Deduced from Their

Originals (1785). See also 5 Oxford English Dictionary 49 (1933).

11 The election supervisors whose judicial appointment was up-

held by this Court in Ez parte Siebold, 100 U.S. 371, 397-98 (1880),

secant

Petitioner’s Appointments Clause argument represents

an attempt to overturn the holding of United States v.

Nixon, 418 U.S. at 692-97, that the Attorney General

may appoint Independent Counsel to conduct a criminal

investigation. Petitioner’s novel view of the Appoint-

ments Clause is unsupported by any decision of this

Court, and does not justify reexamination of United

States v. Nixon.

II. INDEPENDENT COUNSEL AND ASSOCIATE

COUNSEL WERE PROPERLY APPOINTED IN

COMPLIANCE WITH 28 U.S.C. § 515

Petitioner next argues that appropriate authority has

not been vested in Independent Counsel’s Associate

Counsel and that the court of appeals misapplied 28

U.S.C. § 515 in concluding that it was (Pet. 17-23).

While petitioner does not suggest that Independent Coun-

sel Walsh was not properly vested with authority by the

Attorney General under section 515, he argues that As-

sociate Counsel in the Office of Independent Counsel are

without authority because they have mot executed sep-

arate appointment affidavits under the regulation as dis-

tinct from the ones they executed under the identical

provisions of the statute (Pet. 18-21). Not surprisingly,

this argument was unanimously rejected by the court of

appeals.

were not subordinate to or removable by any “superior officer,”

although they had certain reporting obligations to the chief super-

visor of elections in each judicial district. See 16 Stat. 433-38

(1870). In United States v. Eaton, 169 U.S. 331 (1898), the

Court held that a Vice Consul remains an “inferior Officer” even

when he takes the place of the Consul, who is not an “inferior

Officer”: “Because the subordinate officer is charged with the per-

formance of the duty of the superior for a limited time, and under

special and temporary- conditions, he is not thereby transformed

into the superior and permanent official.” 169 U.S. at 343. The same

is true here, when the Attorney General has chosen to delegate

his full authority for a limited period of time for a particular in-

vestigation under special and temporary conditions.

The basic fallacy in petitioner’s argument is his as-

sumption that the Independent Counsel regulation issued

by the Attorney General was intended to create a new

and different Office of Independent Counsel, separate

and distinct from the Office that already was in exist-

ence under the statute. The true purpose of the Attor-

ney General’s regulation was exactly the opposite: it

was to guarantee the continuation of the existing Office

of Independent Counsel by giving it a concurrent and

parallel source of authority identical in all respects to

the authority which it possessed under the statute. See

52 Fed. Reg. 7270-71 (March 10, 1987) (Pet. App. 76a-

77a). Since the powers of Independent Counsel and As-

sociate Counsel under the regulation are identical to

those under the statute, there simply was no need, as

the court of appeals concluded, for Associate Counsel to

execute duplicate appointment affidavits under the regu-

lation.

The court of appeals recognized this self-evident fact,

stating “we find that appointment to the one office car-

ries over to the other” (Pet. App. 16a). The court con-

tinued:

“The offices established under the Ethics Act and

under the regulation have identical investigative and

prosecutorial powers and jurisdiction. In addition,

Walsh serves as Independent Counsel for each office,

with the parallel authority to appoint associate coun-

sel. Finally, the terms of the appointment and oath

forms for the two offices are virtually identical. In

sum, by previously submitting the appointment and

oath forms to the Special Division, the associate

counsel accepted appointments and took oaths iden-

tical to those that would have been required under

the regulation, in order to perform the same jobs in

a functionally indistinguishable office to that estab-

lished by the regulation. Undoubtedly for these rea-

sons, the Department of Justice accepts that the ap-

pointments and oaths made pursuant to the Ethics

Sianeli

Act are sufficient as appointments and oaths of as-

sociate counsel within the Office of Independent

Counsel: Iran/Contra. We agree with the district

court that ‘{nlew appointment documents, therefore,

would have served no purpose, as associate counsel

had already made the necessary representations and

were bound to their responsibilities under the first

set of forms.’” (Pet. App. 16a-17a (citation omit-

ted) ).”

Petitioner also contends that the Attorney General

failed to comply with the requirement of 28 U.S.C.

§515(a) that he “specifically direct{]” Independent

Counsel and Associate Counsel to conduct a grand jury

investigation (Pet. 21-23). In so arguing, North relies

upon the lack of any “letter of authority” from the At-

torney General (or his delegate) to each attorney.

98 U.S.C. §515(a) permits any attorney “specially

appointed” by the Attorney General, when “specifically

120n March 13, 1987, Associate Attorney General Trott wrote

to Mr. Walsh, stating that Mr. Walsh’s staff should complete ap-

pointment affidavits and be sworn in, and that the affidavits should

be sent to the Justice Department (Pet. App. 100a-101a). At the

time, however, the Department of Justice was not aware that each

of the Associate Counsel! in the Office of Independent Counsel al-

ready had executed appointment affidavits pursuant to their initial

appointments by Independent Counsel (see Struve Aff., par. 4 &

Ex. 3). Since the Independent Counsel’s power to appoint Associate

Counsel is precisely the same under the Attorney General's regula-

tion as it is under the statute, compare 28 C.F.R. § 600.1(c) (Pet.

App. 80a) with 28 U.S.C. §594(c) (Pet. App. 94a), Independent

Counse! concluded that there was no need for Associate Counsel

to execute duplicate appointment affidavits pursuant to the Attor-

ney General’s regulation, and the Department of Justice was so

informed (Struve Aff., par. 7). The Justice Department likewise

advised the court of appeals that it “failfed] to see any compelling

reason that the associate counsel should be required to execute

duplicate affidavits under the regulations” once Mr. Walsh had exe-

cuted a separate affidavit. Brief on Behalf of Amicus Curiae United

States at 20, In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987).

diretted” by the Attorney General, to conduct any kind

of legal proceeding, civil or criminal, including grand

jury proceedings. There is no question that Mr. Walsh

was specially appointed by the Attorney General and ac-

cepted the appointment under the specific jurisdictional

limitations set forth in the Attorney General’s regula-

tion. Thereafter, under the regulation’s provision au-

thorizing him to hire Associate Counsel, fix their com-

pensation and assign their duties, 28 C.F.R. § 600.1(c)

(Pet. App. 80a), and present matters within his jurisdic-

tion to the grand jury, 28 C.F.R. § 600.1(a) (Pet. App.

78a-79a), Mr. Walsh directed his subordinates, already

hired by him as employees of the Office of Independent

Counsel created by the Special Division and who had all

signed appointment affidavits, to proceed with the in-

vestigation in which they already were engaged. As the

court of appeals concluded (Pet. App. 15a-19a), no more

was required.

The Attorney General’s regulation and his appointment

of Mr. Walsh accomplished both purposes of section 515

—special appointment and specific direction. Indeed, the

regulation is a more detailed and more formal delega-

tion of authority, which more clearly defines and cir-

cumscribes Mr. Walsh’s jurisdiction, than any Attorney

General letter at issue in any of the reported cases. See,

e.g., United States v. Prueitt, 540 F.2d 995, 1000 (9th

Cir. 1976), cert. denied, 429 U.S. 1063 (1977). As the

court of appeals noted: “Although the cases concerning

compliance with Section 515(a) almost uniformly involve

a dispute over whether a particular ‘letter of authority’

specifically authorized the investigation being conducted,

no court has held that section 515(a) requires that there

be any ‘letter of authority’ as such.... From the facts

of this case, we conclude that a specific direction has

been given, and that the purpose of the statute has been

met.” (Pet. App. 17a-18a).

It would be difficult to imagine the Attorney General

giving any more “specific direct[ion]” to the Independent

Counsel and his staff than he did in the regulation. To

demand the “duplicative effort” of requiring the associate

counsel to submit second appointment forms and take

oaths for a second time would be, in the words of the

court of appeals, to “exalt forms over substance’’ (Pet.

App. 19a).

Ill. THE DECISION OF THE COURT BELOW NOT TO

REACH PETITIONER’S CHALLENGE TO THE

CONSTITUTIONALITY OF THE INDEPENDENT

COUNSEL STATUTE IS FULLY CONSISTENT

WITH THIS COURT’S DECISION IN BOWSHER

v. SYNAR

Petitioner argues that even after upholding the au-

thority of Independent Counsel under the Attorney Gen-

eral’s regulation, the court of appeals nevertheless should

have gone on to pass on the constitutionality of the In-

dependent Counsel statute because, petitioner asserts, the

possibility of judicial review under the statute of a pos-

sible removal of Independent Counsel by the Attorney

General creates a “here-and-now subservience,” Bowsher

v. Synar, 106 S. Ct. 3181, 3189 n.5 (1986), of Independ-

ent Counsel to the Special Division (Pet. 23-27). As the

court of appeals correctly held (Pet. App. 20a-25a), this

argument is far too attenuated to render the constitu-

tionality of the statute ripe for review.

The possibility of judicial review of a possible removal

of Independent Counsel by the Attorney General does not

create a “here-and-now subservience” of Independent

Counsel to the court which might conduct such review.”

If the possibility of removal by the Attorney General cre-

13 Thus, for example, no one would contend that the decision in

Humphrey's Executor v. United States, 295 U.S. 602 (1935), cre

ated a “here-and-now subservience” of Commissioners of the Fed-

eral Trade Commission to the courts.

ated a “here-and-now subservience” to anyone, it would

be to the Attorney General himself, not to any court."

It is, after all, the Attorney General who may remove

Independent Counsel, not the court whose role is limited

te determining whether the removal was for good cause

or was arbitrary or capricious. When this Court used

the term “here-and-now subservience” in Bowsher v.

Synar, it was referring to the power of Congress to re-

move the Comptroller General, not the possibility of judi-

cial review of an exercise of that power.’®

The mere possibility of judicial review of an executive

action pursuant to a statute or regulation has never been

held to mean that the constitutionality of the statute or

regulation is ripe for judicial review. To hold otherwise

would mean, as the court of appeals suggested, that “the

constitutionality of a statute is ripe for review any time

a party raises a separation of powers claim” (Pet. App.

23a-24a n.57).**

As the court of appeals recognized (Pet. App. 75a),

“the judiciary should rule on the constitutionality of an

Act of Congress only as a last resort... .” See, e.g.,

United States v. Locke, 471 U.S. 84, 92 (1985); Ash-

wander v. TVA, 297 U.S. 288, 346-47 (1936) (Brandeis,

14 Of course, any actual subservience of Independent Counsel to

the Attorney General is precluded by the safeguards of independ-

ence built into both the statute and the regulation.

15 The words of Bowsher make this point clearly. The Court held

that it “is the Comptroller General’s presumed desire to avoid

removal by pleasing Congress, which creates the here-and-now

subservience to another branch that raises separation of powers

problems.” Bowsher v. Symar, 106 S. Ct. at 3189 n.5 (internal

quotation marks and citation omitted; emphasis added).

16 Moreover, as the court of appeals noted, petitioner “does not

identify any way in which this ‘here-and-now’ effect is even argu-

ably felt by him” (Pet. App. 24a-25a). North does not claim that

the statute has prompted Independent Counsel to take actions that

he would not have taken but for the existence of the statute.

J., concurring). Since Independent Counsel’s powers un-

der the Attorney General’s appointment are identical to

those under the Independent Counsel statute, there is no

need for this Court to reach out to decide the constitu-

tionality of the statute, and every reason for this Court

to avoid unnecessary constitutional adjudication.

IV. PETITIONER’S ATTACK UPON AN ONGOING

GRAND JURY INVESTIGATION IS NOT RIPE FOR

REVIEW

In a threshold ruling in this case, the court of appeals

held that a pre-indictment challenge to the authority

of Independent Counsel was ripe for review when raised

by a witness resisting an otherwise valid grand jury

subpoena for unprivileged information (Pet. App. 66a-

73a). The court concluded that Independent Counsel’s

asserted lack of authority provides ‘‘just cause” for

refusal to comply with the subpoena under 28 U.S.C.

§ 1826. The court suggested that the enactment of sec-

tion 1826 overruled Blair v. United States, 250 U.S. 273

(1919), and held that its conclusion was compelled by

United States v. Ryan, 402 U.S. 530 (1971). The court

of appeals, we submit, was wrong in so holding.

To effectuate the strong public interest in an expedi-

tious and thorough criminal investigation, this Court and

the lower courts have repeatedly refused to permit col-

lateral attacks upon ongoing criminal investigations at

the pre-indictment stage. As the Court said in Blair v.

United States, 250 U.S. at 282, an individual “is not

entitled to challenge the authority of ... the grand

jury, provided they have a de facto existence and or-

ganization.” See also United States v. Calandra, 414

U.S. 338, 349 (1974) (“Permitting witnesses to invoke

the exclusionary rule before a grand jury would precipi-

tate adjudication of issues hitherto reserved for the trial

on the merits and would delay and disrupt grand jury

proceedings.”) ; United States v. Dionisio, 410 U.S. 1, 17

(1973) (impeding a grand jury’s investigation “frus-

trate[s] the public’s interest in the fair and expeditious

administration of the criminal laws”). Rather than per-

mit disruption of ongoing criminal investigations, any

challenge to the authority or propriety of a criminal in-

vestigation should be heard only after an indictment (if

any) is returned by the grand jury. Until such time,

petitioner has suffered no cognizable injury and his claim

is not ripe for review.

The real issue before the court of appeals was whether

petitioner should be required to furnish unprivileged

information to the grand jury. It is for refusing to do

this that petitioner was adjudged in civil contempt. In

the absence of any colorable basis for withholding the

information sought, petitioner does not face a legitimate

dilemma of foregoing a right or privilege or facing in-

carceration. Rather, by making the decision not to com-

ply with a valid subpoena, petitioner attempted to estab-

lish a basis for ripeness that is wholly artificial.

CONCLUSION

For all of the foregoing reasons, the petition for a

writ of certiorari should be denied.