Opposition Brief — North v. Walsh

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No. 87-1094 JAN 29 1988

cmon — PJOSEET F. SPANIOL, JF

IN THE bs CLERK

Supreme Court of the United States

OCTOBER TERM, 1987

OLIVER L. NORTH,

Petitioner,

LAWRENCE E. WALSH, INDEPENDENT COUNSEL, and

EDWIN MEESE III, ATTORNEY GENERAL,

Respondents.

OLIVER L. NORTH,

ES Petitioner,

EDWIN MEESE III, ATTORNEY GENERAL, and

LAWRENCE E. WALSH, INDEPENDENT COUNSEL,

Respondents.

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 K. 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,

January 29, 1988 Independent Counsel

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 inte yh

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QUESTIONS PRESENTED

1. Whether a federal court may, consistent with long-

established principles of equity and ripeness, entertain a

pre-indictment civil action seeking injunctive and de-

claratory relief against the investigative activities of a

federal prosecutor and grand jury?

2. Whether this Court should address the procedural

problems presented by such a civil action where the un-

derlying substantive issue has since been resolved in an-

other proceeding?

(i)

TABLE OF CONTENTS

Page

Rp ye Ry al ed | i

SE ET EMIS oc ccccasnansnacccscannacovaraccecssecencons iv

STATEMENT OF THE CASE ......................................... 2

A. The Appointment of Independent Counsel........ 2

B. The Attorney General’s Parallel Appointment of

ie a caaiesbiiandntninninbads 3

C. North’s Two Actions Seeking to Enjoin Inde-

pendent Counsel’s Investigation ........................... 4

D. North’s Subsequent Attack Upon the Authority

of Imgepemaent Counsel ........................................ 7

REASONS FOR DENYING THE WRIT ....................... 7

I. Petitioner’s. Civil Actions Were Properly Dis-

missed as Impermissible Collateral Attempts to

Enjoin an Ongoing Criminal Investigation........ 8

II. The Case Does Not Merit Review by This Court

Because the Underlying Substantive Issue in the

Case Has Already Been Resolved in Another

lS A PR ee 14

sc ticslachargeteubatiuaninubsipiesuibonoseice 17

(iii)

iv

TABLE OF AUTHORITIES

Cases

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

Chicago & Grand Trunk Ry. v. Wellman, 143 U.S.

Be a)

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)...

Deaver v. Seymour, 822 F.2d 66 (D.C. Cir. 1987) ..

In re Grand Jury Subpoena to Central States, 225

F. Suse. Sao CNL. 16. 3956) ..............................

In re Oliver L. North, et al., Div. No. 86-6, Dec. 19,

ar hres eah aenetcckectonakabecaisiadin dea aeteinatsdipates

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

10, 1987), aff’d, 829 F.2d 50 (D.C. Cir. 1987),

cert. denied sub nom. North v. Walsh, No. 87-869

OE ts is IEEE. seca chnascaees deseantindecaaseuetianesicnedaan

In re Sealed Case, No. 87-8261 (D.C. Cir. Jan. 22,

Nate ian a i ad ede, Maen tnt ee MN

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

cert. denied sub nom. North v. Walsh, No. 87-869

ik ee Rr ae Sea er ee

Jett v. Castaneda, 578 F.2d 842 (9th Cir. 1978)...

Kugler v. Helfant, 421 U.S. 117 (1975) ....00000022202...

LaRouche v. Webster, 566 F. Supp. 415 (S.D.N.Y.

MITE © coanccqucansta Ubcacenecesncdee nities seeped shadenasumeeenene

Olagues v. Russoniello, 797 F.2d 1511 (9th Cir.

1986) (en banc), cert. granted, 107 S. Ct. 1885

(1987), vacated and remanded as moot, 108

tm RR, yan att MESS ALE Oe

O’Shea v. Littleton, 414 U.S. 488 (1974) ....00000000...

Pennzoil Co. v. Texaco, Inc., 107 S. Ct. 1519

| iS EE, MCR Ca T SRE Th TF mort or aE

Perez v. Ledesma, 401 U.S. 82 (1971) ..........0..........

Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark.),

gg SB BR ganna Rene ln

Preiser v. Newkirk, 422 U.S. 395 (1975) ..............

Reporters Committee for Freedom of the Press v.

American Telephone & Telegraph Co., 593 F.2d

1030 (D.C. Cir. 1978), cert. denied, 440 U.S. 949

ff ee ER CITE Pea nen te fh So a De RRO

Rizzo v. Goode, 423 U.S. 362 (1976) .........................

Smith v. Meese, 821 F.2d 1484 (11th Cir. 1987)...

14, 16

9,10

11-13

10

3,4

11-13

Vv

TABLE OF AUTHORITIES—Continued

Page

Sosna v. Iowa, 419 U.S. 393 (1975) .....................---- 16

Southern Pacific Ry. v. United States, 168 U.S. 1

5 RETR a ec iPass Ny enna Ne ONO Oem 15-16

Steffel v. Thompson, 415 U.S. 452 (1974) -............. Ti, 2

United States v. Calandra, 414 U.S. 338 (1974).... 13

United States v. Dionisio, 410 U.S. 1 (1973) _....... 13-14

United Public Workers of America v. Mitchell,

OD Fe ND iccerctiiieia assent pcenincaceseetiarepeoodans 14

Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc.,

a ee Be acne cncsesscncicccepecsttiiacsicieeannsienss 14, 16

Wooley v. Maynard, 430 U.S. 705 (1977) ................. 11

Younger v. Harris, 401 U.S. 37 (1971) ................. 9, 10-11

United States Constitution

I re cueeanianaanaiieatanaiae 14

Statutes and Regulations

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

BF eit ohididcinetthhnencehsnincesiccgnipasndeecinienin sian 2, 4,11, 14, 15

NI sibs cesddeasidetdnstnspiakeatameniandelenion 3,4

a ciskcstnnemmbanennan 3,4

52 Fed. Reg. 7270 (March 10, 1987) -...........-.--...-...... 3

52 Fed. Reg. 9241 (March 23, 1987) ........................... 3

Other Authorities

52 Weekly Comp. Pres. Doc. 1604 (1986) .................. 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-1094

OLIVER L. NORTH,

Petitioner,

Vv.

LAWRENCE E. WALSH, INDEPENDENT COUNSEL, and

EDWIN MEESE III, ATTORNEY GENERAL,

Respondents.

OLIVER L. NoRTH,

Petitioner,

Vv.

EDWIN MEESE III, ATTORNEY GENERAL, and

LAWRENCE E. WALSH, INDEPENDENT COUNSEL,

Respondents.

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 Cir-

cuit which rejected petitioner’s attempt to halt an on-

2

going grand jury investigation by bringing collateral

civil actions (Pet. App. A).' As described below, the

decision of the court of appeals follows long-standing

precedents in which the courts have declined to exercise

their equitable powers to interrupt criminal investiga-

tions in advance of indictments.

STATEMENT OF THE CASE

A. The Appointment of 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 At-

torney 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.” /d.

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

nouncement of the Justice Department’s investigation,

Attorney General Meese announced that he had concluded

that he should apply for the appointment of an Independ-

ent Counsel. On December 4, 1986, the Attorney General

filed an application for appointment of an Independent

Counsel with the Division for the Purpose of Appointing

Independent Counsels of the United States Court of Ap-

peals for the District of Columbia Circuit (the “Special

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

the Attorney General expressly stated that an Independ-

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

$ 591(e}, which provides for the appointment of an In-

dependent Counsel “if the Attorney General determines

that investigation . . . by the Attorney General or other

! The Petition for Writ of Certiorari and the Appendices to the

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

3

officer of the Department of Justice may result in a per-

sonal, financial, or political conflict of interest.”

On December 19, 1986, the Special Division filed an

order appointing Lawrence E. Walsh as Independent

Counsel in the Iran/Contra matter. Order Appointing

Independent Counsel, Jn 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 Govern-

ment officials, and individuals acting in concert with

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

appointment and began his investigation.

B. The Attorney General’s Parallel Appointment of In-

dependent Counsel

On March 5, 1987, after petitioner had brought the

first of the two civil actions that are the subjects of this

petition (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 Gov-

ernment Act and the December 19, 1956 court order ap-

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

10, 1987), 9241 (March 23, 1987).

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. He

emphasized that the regulation was “not meant to ques-

tion 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. As

the Department of Justice stated in its brief in this case

in the district court, under the Attorney General’s regu-

lation Independent Counsel possesses the full authority

4

conferred by his court appointment. See Attorney Gen-

eral’s Reply Memorandum in Support of Attorney Gen-

eral’s Motion to Dismiss at 8, North v. Walsh, 656 F.

Supp. 414 (D.D.C. 1987), aff'd, No. 87-5058 (D.C. Cir.

Oct. 1, 1987). The Attorney General’s regulation con-

firmed in the same terms as the Independent Counsel

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

dependent Counsel’s authority, his independence, the limi-

tations on his removal, and the scope of his investiga-

tion.”

C. North’s Two Civil Actions Seeking to Enjoin Inde-

pendent Counsel’s Investigation

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

grand jury was empaneled in this matter, petitioner

brought his first 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 were uncon-

stitutional, and sought nothing less than to halt the en-

tire investigation of the Iran/Contra matter by Inde-

pendent Counsel. Petitioner demanded the following re-

lief :

“1. That this Court issue judgment declaring that

the independent counsel provisions of the Act

violate the Constitution of the United States.

2. That this Court issue judgment declaring that

the appointment of Mr. Walsh as independent

counsel under the Act violates the Constitution

of the United States.

3. That this Court issue judgment declaring that

each and every appointment by Mr. Walsh of

2Compare 28 C.F.R. § 600.1 (Authority and duties of an Inde-

pendent Counsel) with 28 U.S.C. §594 (same), and compare 28

C.F.R. § 601.1 (Jurisdiction of the Independent Counsel: Iran/

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

5

associate counsel violates the Constitution of the

United States.

4. That this Court issue judgment declaring that

each and every act of the independent counsel

and his staff taken in the name of the United

States, or otherwise in furtherance of the divi-

sion of the court’s Order of December 19, 1986,

is unconstitutional.

5. That this Court issue judgment declaring that

the provision of assistance to the independent

counsel and his staff, by defendant Meese and

the Department of Justice, in the form of re-

sources and personnel of said Department, is

unconstitutional.

6. That this Court enjoin and restrain defendant

Walsh from exercising any and all of the au-

thority and power conferred upon him by the

division of the court pursuant to the Act.

7. That this Court enjoin and restrain defendant

Walsh and anyone acting on his behalf, or on

behalf of the Office of Independent Counsel, from

purporting to exercise, exercising or seeking to

exercise any power or authority of the United

States or of the Department of Justice in fur-

therance of the independent counsel provisions of

the Act.

8. That this Court enjoin and restrain defendant

Meese, the Department of Justice, and any offi-

cer, employee or agent thereof from assisting the

independent counsel or anyone acting on his be-

half in any manner authorized by the Act.

9. That this Court grant such other and further re-

lief as it deems just and appropriate.”

North I, Complaint and Request for Injunction (Pet.

App. 40a-41a).

Eleven days after filing his first civil action, on the

day following the Attorney General’s parallel appoint-

6

ment of Independent Counsel, petitioner filed a second

complaint. North v. Meese, D.D.C., Civil Action No. 87-

0626 (‘North II”). He now contended that the Attorney

General’s appointment of Mr. Walsh as Independent

Counsel under the regulation violated the Constitution

and laws of the United States, and sought similarly broad

relief. See Complaint and Request for Injunction, North

II (Pet. App. 42a-56a). In North I, petitioner objected

to the court appointment and statutory authorization of

an Independent Counsel, but claimed that Executive ap-

pointment of an Independent Counsel would be appropri-

ate. In North II, petitioner objected to the Executive

appointment of an Independent 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

objections by appropriate motions, if and when an in-

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

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

1987) (emphasis in original) (Pet. App. 5a, 23a). On

October 1, 1987, the court of appeals summarily affirmed

that decision, holding unanimously that petitioner “has

impermissibly attempted to attack collaterally a pending

criminal investigation through the maintenance of a sep-

arate civil action . . . [PJotential criminal defendants

cannot, by bringing ancillary equitable proceedings, cir-

cumvent federal criminal procedure.” North v. Walsh,

No. 87-5058 (D.C. Cir. Oct. 1, 1987) (per curiam)

(quotation omitted) (Pet. App. 4a).

The petition for certiorari herein was filed on Decem-

ber 30, 1987, the last day permitted under this Court’s

rules. In the meantime, as described below, the under-

lying substantive issue which petitioner attempted to

raise in these civil actions has since been resolved

against him in another proceeding.

7

D. North’s Subsequent Attack Upon the Authority of In-

dependent Counsel

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

grand jury subpoena calling for certain unprivileged in-

formation. North refused to produce the requested in-

formation and was held in civil contempt. 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 unnecessary to reach

the constitutionality of the Independent Counsel statute.

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

1987).

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), cert. dented sub nom. North v.

Walsh, No. 87-869 (U.S. Jan. 19, 1988). All three

judges agreed that Independent Counsel and his subordi-

nates have legal authority to pursue the investigation in

the Iran/Contra matter under the Attorney General’s

regulation. Rehearing en banc was unanimously denied

by the court of appeals on October 23, 1987. North filed

a petition for a writ of certiorari, which was denied by

this Court on January 19, 1988. North v. Walsh, No.

87-869.

\

REASONS FOR DENYING THE WRIT

The actions whose dismissal gave rise to this petition

were collateral civil actions attempting to halt the crim-

inal investigation by the grand jury and Independent

Counsel in the Iran/Contra matter. As such, these ac-

tions conflicted with fundamental principles which have

repeatedly been reaffirmed by this Court.. First, equit-

able principles bar the granting of injunctive or declara-

tory relief against criminal investigations and prosecu-

tions, except in extraordinary circumstances not found

8

here. Second, this Court has repeatedly refused to per-

mit collateral attacks upon ongoing criminal investiga-

tions at the pre-indictment stage. Thus, the decisions of

the courts below are fully consistent with the decisions

of this Court. There is no conflict in the circuits justify-

ing review by this Court.

Finally, the underlying issue in this case—the author-

ity of Independent Counsel to conduct his investigation of

the Iran/Contra matter—has now been resolved. Even

if petitioner’s pre-indictment civil complaints were other-

wise appropriate, the courts have now foreclosed the

substantive relief he seeks. For all of these reasons, this

Court should decline to review this matter.

I. PETITIONER’S CIVIL ACTIONS WERE PROP-

ERLY DISMISSED AS IMPERMISSIBLE COLLAT-

ERAL ATTEMPTS TO ENJOIN AN ONGOING

CRIMINAL INVESTIGATION

Petitioner admits that “this Court in recent years has

cautioned restraint in federal court interference, through

injunctive relief, with pending state criminal prosecu-

tions” (Pet. 11-12). Indeed, as described below, this

Court has long held that state law enforcement efforts

may be enjoined or declared unconstitutional only in “ex-

traordinary circumstances,” that is, where the law en-

forcement activities create a threat of irreparable injury

that is “great and immediate,” and have been conducted

in bad faith or for purposes of harassment. No lesser

restriction on judicial power should apply where federal

criminal investigative activities are concerned. Since

no “extraordinary circumstances” can be found on the

facts of this case, a remand is neither necessary nor

appropriate.

It is a “basie doctrine of equity jurisprudence that

courts of equity should not act, and particularly should

not act to restrain a criminal prosecution, when the mov-

ing party has an adequate remedy at law” and will not

9

suffer irreparable injury if denied equitable relief. Penn-

zoil Co. v. Texaco, Inc., 107 S. Ct. 1519, 1525 (1987),

quoting Younger v. Harris, 401 U.S. 37, 43-44 (1971).

This doctrine “prevent[s] erosion of the role of the jury

and avoid[s] a duplication of legal proceedings and legal

sanctions where a single suit would be adequate to pro-

tect the rights asserted.” Younger, 401 U.S. at 44. Thus,

this Court has long held that “in the absence of excep-

tional circumstances creating a threat of irreparable in-

jury ‘both great and immediate,’ a federal court must not

intervene by way of either injunction or declaratory

judgment” in an ongoing state criminal prosecution.

Kugler v. Helfant, 421 U.S. 117, 123 (1975) (citation

omitted). See also Perez v. Ledesma, 401 U.S. 82, 85

(1971) (equitable relief against state prosecutions is

available “[o]nly in cases of proven harassment or pros-

ecutions undertaken by state officials in bad faith without

hope of obtaining a valid conviction and perhaps in other

extraordinary circumstances”).

This Court has also recognized the importance of judi-

cial restraint where federal courts are asked to enjoin or

declare unconstitutional state law enforcement practices,

even though no criminal prosecutions are pending. See,

e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 112

1983); Rizzo v. Goode, 423 U.S. 362, 379-80 (1976).

Thus, in Rizzo, the Court held that a federal court abused

its equitable discretion in directing a police department

to revise its police manuals and procedures for handling

complaints of minority citizens, noting that “principles

of equity . . . militate heavily against the grant of an

injunction except in the most extraordinary circum-

stances,” 423 U.S. at 379, and that “a major continuing

intrusion of the equitable power of the federal courts into

the daily conduct of state criminal proceedings is in

sharp conflict with the principles of equitable restraint.”

Id. at 379-80, quoting O’Shea v. Littleton, 414 U.S. 488,

502 (1974).

10

A similar restraint on the federal judiciary’s exercise

of its equitable powers has been recognized where fed-

eral criminal investigations are concerned.* Thus the

lower federal courts, applying the principles enunciated

by this Court, have held that, to the extent challenges to

federal criminal investigative activities are justiciable

at all, such activities may be enjoined or declared uncon-

stitutional only in the most “extraordinary circum-

stances.” See e.g., Reporters Committee for Freedom of

the Press v. American Telephone & Telegraph Co., 593

F.2d 1030, 1065 (D.C. Cir. 1978), cert. denied, 440 U.S.

949 (1979); Jett v. Castaneda, 578 F.2d 842, 845 (9th

Cir. 1978) ; LaRouche v. Webster, 566 F. Supp. 415, 417

(S.D.N.Y. 1983); see also Pollard v. Roberts, 283 F.

Supp. 248, 257 (E.D. Ark.), aff'd, 393 U.S. 14 (1968) ;

In re Grand Jury Subpoena to Central States, 225 F.

Supp. 923, 925 (N.D. Ill. 1964).

No such “extraordinary circumstances,” as defiined by

this Court, are presented by the facts of this case. Peti-

tioner has not shown the necessary “great and immedi-

ate” irreparable injury. Nor has he suggested that the

investigation was conducted in “bad faith,” for purposes

of “harassment,” or in flagrant and patent violation of

express constitutional prohibitions. See Younger, 401

U.S. at 46, 53-54; see also Lyons, 461 U.S. at 112. In-

deed, the Younger Court explicitly noted that:

“Certain types of injury, in particular, the cost,

anxiety, and inconvenience of having to defend

3 Petitioner’s assertion that Younger principally concerns federal-

state relations (Pet. 12, 13) is inconsistent with this Court’s inter-

pretation of that decision. The Court has recently made clear that

the “first ground for the Younger decision was ‘the basie doctrine

of equity jurisprudence that courts of equity . .. should not act to

restrain a criminal prosecution[] when the moving party has an

adequate remedy at law.’”’ Pennzoil Co., 107 S. Ct. at 1525, quoting

Younger, 401 U.S. at 43. Principles of comity and federalism were

a “second explanation,” Pennzoil Co., 107 S. Ct. at 1525, that only

“reinforced” the “underlying reason” for judicial restraint.

Younger, 401 U.S. at 44.

a

11

against a single criminal ‘prosecution, could not by

themselves be considered ‘irreparable’ in the special

legal sense of that term. Instead, the threat to

plaintiff's federally protected rights must be one

that cannot be eliminated by his defense against a

single criminal prosecution.”

401 U.S. at 46 (citation omitted; emphasis added). Here

petitioner must concede that the worst that can happen

to him as a result of the Independent Counse} statute and

regulation which he regards as unconstitutional is that he

would be indicted. Accordingly, petitioner here is in pre-

cisely the situation designated by the Court as insufficient

to constitute an “irreparable injury.” *

Moreover, petitioner’s fundamental misreading of

Younger and its progeny underlines that any purported

“conflict” in the Circuits is illusory. The decisions in-

voked by petitioner (Pet. 6-11), Olagues v. Russoniello,

797 F.2d 1511 (9th Cir. 1986) (en banc), cert. granted,

107 S. Ct. 1885 (1987), vacated and remanded as moot,

108 S. Ct. 52 (1987), and Smith v. Meese, 821 F.2d

1484 (11th Cir. 1987), concerned issues fundamentally

different from those involved in the instant case and

in Deaver v. Seymour, 822 F.2d 66 (D.C. Cir. 1987)

(Pet. App. 70a).

4 Steffel v. Thompson, 415 U.S. 452 (1974), relied upon by peti-

tioner (Pet. 11-16), is not to the contrary. In Steffel, the Court

held that a declaratory judgment action was permissible to test the

constitutionality of a statute under which the plaintiff faced a

“genuine threat” of prosecution. Wooley v. Maynard, 430 U.S. 705,

‘au (1977). Steffel allowed litigants to steer “between the Scylla

of intentionally flouting state law and the Charybdis of forgoing

what [they] believe[] to be constitutionally protected activity in

order to avoid becoming enmeshed in a criminal proceeding.”

Steffel, 415 U.S. at 462. Here, petitioner does not claim that he

may have violated the Independent Counsel provisions of the Ethics

in Government Act or the Attorney General’s independent counsel

regulation, and he does not claim that he has foregone any arguably

constitutionally protected activity because of these laws. Accord-

ingly, Steffel is of no aid to petitioner in seeking a declaratory

judgment on the validity of these laws.

12

Olagues was a class action in which a group of Chinese

and Hispanic Americans challenged a federal vote fraud

investigation of foreign-born voters who requested bilin-

gual ballots. There the Ninth Circuit adopted the plain-

tiffs’ contention that “such a classification must be sub-

jected to strict scrutiny under equal protection clause

analysis because it discriminates on the basis of lan-

guage, race, and national origin.” Olagues, 797 F.2d at

1520. In Smith v. Meese, 821 F.2d 1484, 1489 (11th Cir.

1987), the court reversed the dismissal of a challenge by

a group of black voters and elected officials to an alleg-

edly discriminatory pattern and policy of federal vote

fraud investigations, on the ground that this “policy and

pattern of investigatory and prosecutory decisions. . .

ha[d] the effect of depriving [plaintiffs] of their consti-

tutional rights to vote and to associate freely.”

Both Olagues and Smith involved First Amendment

and equal protection challenges to alleged patterns of

prosecutorial discrimination. As such, they are consis-

tent with the observation of the Deaver court that “in the

past few decades, the Supreme Court has upheld federal

injunctions to restrain state criminal proceedings only

where the threatened prosecution chilled the exercise of

First Amendment rights.” Deaver, 822 F.2d at 69 (Pet.

App. 70a, 77a) (citing, inter alia, Steffel v. Thompson,

415 U.S. 452 (1974); emphasis added). Petitioner here,

in contrast, does not even make a First Amendment or

equal protection claim. The Smith court explicitly noted

the important difference between a class action to protect

group rights and an individual attempt to escape crimi-

nal investigation or prosecution:

“It is important to note that the plaintiffs in this

case are not attempting to have the federal judiciary

review individual decisions to investigate or prose-

cute anyone. ... We are not asked to block or re-

quire the prosecution of any individual; instead, the

plaintiffs have asked the federal court to order the

13

defendants to stop following a deliberate policy of

discriminatory investigations and prosecutions.”

Smith, 821 F.2d at 1490 (footnotes omitted). Thus, peti-

tioner is seeking precisely the relief that the Smith court

explicitly—and the Olagues court implicitly—distin-

guished from the situations that were before the District

of Columbia Circuit in this case and in Deaver.

Finally, it must be noted that petitioner seeks nothing

less than to enjoin a grand jury proceeding. This Court

has repeatedly recognized that an essential part of fair

and expeditious law enforcement is the grand jury in-

vestigation, the purpose of which is “to determine

whether a crime has been committed and whether crim-

inal proceedings should be instituted.” United States v.

Calandra, 414 U.S. 338, 348-44 (1974). To ensure that

grand juries are able to discharge their duties effectively

and efficiently, they are invested with broad powers.

E.g., Blair v. United States, 250 U.S. 273, 282 (1919).

The courts have consistently rejected collateral chal-

lenges to grand jury investigations. For example, in

Blair, a federal grand jury was empaneled to investigate

possible violations of the Federal Corrupt Practices Act.

Witnesses called before the grand jury refused to testify,

claiming that the grand jury was without authority since

the Act was unconstitutional. Holding that this collateral

attack on the grand jury’s authority was premature, this

Court stated that an individual “is not entitled to chal-

lenge the authority of ... the grand jury, provided they

have a de facto existence and organization.” 250 U.S. at

282 (emphasis added). Similarly, in Calandra the Court

held that the Fourth Amendment exclusionary rule may

not be invoked by a witness before a grand jury. The

Court explained that “[plermitting 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.” Calandra, 414 U.S. at 349. See also United

14

States v. Dionisio, 410 U.S. 1, 17 (1973) (impeding a

grand jury’s investigation “frustrate[s] the public’s in-

terest in the fair and expeditious administration of the

criminal laws’’).

Furthermore, petitioner’s claims are not ripe for con-

sideration. Pursuant to the “case and controversy” limi-

tation set forth in Article III of the Constitution, the

federal courts have consistently held that they have no

power to decide cases that are premature or not “ripe”

for adjudication. See, e.g., United Public Workers of

America v. Mitchell, 330 U.S. 75 (1947). As used in this

context, ripeness requires in essence that a litigant at-

tempting to invoke the power of a federal court present

a claim that is sufficiently mature that “definite rights

appear upon the one side and definite prejudicial inter-

ferences upon the other.” 330 U.S. at 90 (footnote omit-

ted). See, e.g., Valley Forge Christian College v. Ameri-

cans United for Separation of Church & State, Inc., 454

U.S. 464, 471 (1982); Chicago & Grand Trunk Ry. v.

Wellman, 143 U.S. 339, 345 (1892). Because the pre-

indictment claims raised by petitioner failed to satisfy

that test, they were properly dismissed.

Thus, petitioner’s actions were properly dismissed,

not only as an illegitimate attempt to frustrate an on-

going criminal investigation, but also as a premature

assertion of an unripe constitutional claim.

II. THE CASE DOES NOT MERIT REVIEW BY THIS

COURT BECAUSE THE UNDERLYING SUBSTAN-

TIVE ISSUE IN THE CASE HAS ALREADY BEEN

RESOLVED IN ANOTHER PROCEEDING

Petitioner states that his complaints in the two under-

lying civil actions in this case sought judgments that

“the independent counsel provisions of the Ethics in Gov-

ernment Act are unconstitutional” and that the Attorney

General’s parallel appointment was “rife with constitu-

tional and statutory infirmities” (Pet. 3, 4). Because In-

aerial

15

dependent Counsel’s investigation has now been upheld

against petitioner’s own identical constitutional challenge

in a subsequent proceeding, the underlying merits of the

instant case have been resolved, and have no claim upon

the attention of this Court.

As noted earlier, petitioner refused to comply with a

grand jury subpoena and challenged the authority of

Independent Counsel to conduct his investigation. The

district court upheld the authority of Independent Coun-

sel to conduct the investigation, and the court of ap-

peals affirmed. Jn re Sealed Case, Mise. No. 87-00139

(D.D.C. July 10, 1987), aff'd, 829 F.2d 50 (D.C. Cir.

1987). The court of appeals held that “Walsh and his

associate counsel derive the necessary legal authority

from the Attorney General’s regulation of March 5, 1987,

regardless of whether they also have this authority pur-

suant to their appointments under the Ethics Act.” 7d.

at 62. A petition for a writ of certiorari to review this

decision was denied by this Court on January 19, 1988.

North v. Walsh, No. 87-869.°

In short, Independent Counsel’s authority has been

definitively upheld. Thus, even if this Court were to re-

verse the court of appeals in the instant case and rule

that petitioner’s claim should have been considered on

the merits, the substantive relief that petitioner seeks

will not be granted. The power to measure the authority

5 On January 22, 1988, a divided panel of the court of appeals, in

a case involving another Independent Counsel who had not accepted

a parallel appointment from the Attorney General, held the Inde-

pendent Counsel statute unconstitutional. Jn re Sealed Case, No.

87-8261 (D.C. Cir. Jan. 22, 1988). Even the panel majority in

that case, however, expressly reaffirmed the validity of the Attorney

General’s appointment of Independent Counsel. See Slip op. at 17.

® Principles of res judicata also argue against this Court review-

ing the decision of the court of appeals. The first Justice Harlan’s

oft-quoted summary of the doctrine states that “a right, question

or fact distinctly put in issue and directly determined by a court

16

of government “ ‘is legitimate only in the last resort, and

as a necessity in the determination of real, earnest and

vital controversy.’” Valley Forge Christian College v.

Americans United for Separation of Church & State,

Ine., 454 U.S. 464, 471 (1982), quoting Chicago & Grand

Trunk Ry. v. Wellman, 143 U.S. 339, 345 (1892). The

requirement of a live controversy applies not only at the

time when the complaint is filed, but at all stages of re-

view as well. See Preiser v. Newkirk, 422 U.S. 395, 401

(1975). See also Sosna v. Iowa, 419 U.S. 398,—402

(1975) (“there must be a live controversy at the time

this Court reviews the case.”) The substance of this

action having been determined by the courts, there is

obviously no “real, earnest and vital” controversy here.

Accordingly, the Court should decline to enter a dispute

about this case’s procedural underpinnings.

of competent jurisdiction, as a ground of recovery, cannot be dis-

puted in a subsequent suit between the same parties or their

privies[.]” Southern Pacific Ry. v. United States, 168 U.S. 1, 48

(1897). Because the identical issue has been raised and resolved

between the same two parties, there is no need for further review.

lh

17

CONCLUSION

For all of the foregoing reasons, the petition for a

writ of certiorari should be denied.

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

January 29, 1988