Opposition Brief — North v. Walsh

No. 87-1094

In the Supreme Court of the Anite Ataee |

OCTOBER TERM, 1987

OLIVER L. NORTH, PETITIONER-

ve

LAWRENCE E. WALSH, INDEPENDENT COUNSEL, AND

EDWIN MEESE, III, ATTORNEY GENERAL

OF THE UNITED STATES

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE ATTORNEY GENERAL IN OPPOSITION

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

JAMES M. SPEARS

Deputy Assistant Attorney General

DOUGLAS LETTER

DWIGHT G. RABUSE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Fond _,

X

QUESTION PRESENTED

Whether a federal court may enjoin or declare unlawful

a criminal investigation where the only injury alleged is

that the investigation is being conducted by a person

without authority to do so.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Cobbledick v. United States, 309 U.S. 323 (1940) ....... y

Deaver v. Seymour, 822 F.2d 66 (D.C. Cir. 1987) ....... 5

Douglas v. City of Jeannette, 319 U.S. 157 (1943) ....... y

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

Juluke v. Hodel, 811 F.2d 1553 (D.C. Cir. 1987) ........ 8

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

Olagues v. Russoniello, 797 F.2d 1511 (9th Cir. 1986),

vacated, No. 86-1217 (Oct. 5, 1987) ................. 8

Pennzoil Co. v. Texaco, Inc., No. 85-1798 (Apr. 6,

a De Ne ad ae tok anes «ss )

Reporters Committee for Freedom of the Press v. Ameri-

can Telephone & Telegraph, 593 F.2d 1030 (D.C. Cir.

1978), cert. denied, 440 U.S. 949 (1979) .............. y

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

Steffel v. Thompson, 415 U.S. 482 (1974) .............. y

Por v. semeras, Gun OF... 37 (3978)... 2... eee Yy

Constitution, statutes, regulations and rule:

U.S. Const.:

Rs aes et uly ad we s ads 8

NS wig lw ad ws 3

ste A Nes Sa a we 3

Ethics in Government Act of 1978, Pub. L. No. 95-521,

ns ess a alee 9:0 1, 3

Ee tt ag i Cawukucuas 2

ee, Ck wba neces bee 2

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IN I ooh dae aoa Jb key esd nwawe wens

IV

Statutes, regulations and rule— Continued:

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POT, SUNN a thane seccescncedassaventanias

i oct cosnkcunsecsebaestanatwande

28 C.F.R.:

Jn the Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-1094

OLIVER L. NORTH, PETITIONER

V.

LAWRENCE E. WALSH, INDEPENDENT COUNSEL, AND

EDWIN MEESE, III, ATTORNEY GENERAL

OF THE UNITED STATES

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE ATTORNEY GENERAL IN OPPOSITION

OPINIONS BELOW

The memorandum opinions of the court 9f appeals

(Pet. App. la-2a, 3a-4a) are not yet reported. The opinion

of the district court (Pet. App. Sa-24a) is reported at 656

F. Supp. 414.

JURISDICTION

The judgments of the court of appeals were entered on

October 1, 1987. The petition for a writ of certiorari was

filed on December 30, 1987. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Ethics in Government Act of 1978, Pub. L. No.

95-521, 92 Stat. 1824, provides for the appointment of an

independent counsel to investigate and prosecute certain

(1)

2

members of the Executive Branch charged with criminal

conduct. Whenever the Attorney General receives infor-

mation sufficient to constitute grounds to investigate

allegations that a person covered by the Act has com-

mitted a violation of any federal criminal law (other than a

petty offense), the Act requires that he conduct an in-

vestigation of the matter for a period not to exceed 90

days. 28 U.S.C. 592(a)(1). If the Attorney General finds

reasonable grounds to believe that the matter warrants

further investigation or prosecution, the Act requires that

he apply to a special division of the United States Court of

Appeals for the District of Columbia Circuit for the ap-

pointment of an Independent Counsel. 28 U.S.C. 49,

592(c\(1) and (d)(1). Upon receipt of such an application,

the special division of the court of appeals must appoint

an appropriate Independent Counsel and define a prosecu-

torial mandate. 28 U.S.C. 593(b). An Independent

Counsel so appointed enjoys the authority to exercise vir-

tually all investigative and prosecutorial! functions and

powers of the Department of Justice and the Attorney

General, including the authority to conduct proceedings

before grand juries, to apply for warrants, subpoenas, and

other court orders, and to frame indictments, file informa-

tions, and handle all aspects of a case in the name of the

United States. 28 U.S.C. 594(a).

2. On December 4, 1986, respondent Attorney

General Meese applied for the appointment of an Inde-

pendent Counsel to investigate whether petitioner North

and others may have violated any federal criminal laws

with regard to the transfer of arms to Iran or the disposal

of the resulting proceeds (Pet. App. 12a). On December

19, 1986, respondent Lawrence E. Walsh was appointed

by the special division of court as Independent Counsel to

investigate this so-called “Iran/Contra Affair” (ibid.).

Respondent Walsh promptly began his investigation,

empaneled a grand jury, served numerous subpoenas, and

otherwise explored various aspects of petitioner’s par-

ticipation in the Iran/Contra Affair (ibid.).

On February 24, 1987, petitioner filed suit against

respondent Walsh and respondent Attorney General

Meese in the United States District Court for the District

of Columbia (Pet. App. 12a). Petitioner challenged the

authority of respondent Walsh to conduct his investiga-

tion and sought a declaratory judgment that the independ-

ent counsel provisions of the Ethics in Government Act

are unconstitutional (id. at 12a, 36a-38a).' On March 2,

1987, respondent Walsh moved to dismiss the suit, arguing

that petitioner was engaged in an impermissible collateral

attack On an ongoing criminal investigation, that peti-

tioner’s claims were not ripe, and that the disputed provi-

sions of the Act are constitutional (id. at 12a-13a). On

March 5, 1987, respondent Attorney General Meese

similarly filed a motion to dismiss, joining in the pro-

cedural arguments of respondent Walsh and additionally

arguing that petitioner lacked standing to challenge the

Act’s constitutionality (id. at 13a).

To remove any doubt concerning respondent Walsh’s

authority to conduct the investigation, the Attorney

General, on that same day, promulgated new regulations

establishing an “Office of Independent Counsel:

Iran/Contra” within the Department of Justice (28

C.F.R. Pts. 600, 601) and appointed respondent Walsh to

' Specifically, petitioner alleged that respondent Walsh, while per-

forming investigative and prosecutorial functions reserved to the Ex-

ecutive under Article II of the Constitution, and thus purporting to act

as an Officer of the United States within the meaning of Art. II, § 2,

had not been appointed by the President or by a Department Head, as

the Constitution requires. Petitioner alleged that the independent

counsel provisions thus violated separation of powers principles. See

Pet. App. 36a-38a.

4

head the Office (Pet. App. 13a). Under that appointment,

respondent Walsh was empowered to investigate the same

matters and activities that he had undertaken to in-

vestigate pursuant to his appointment under the Act

(ibid.). Petitioner responded, on March 6, 1987, by filing a

second complaint in the district court, alleging that the

new regulations and appointment were legally infirm (id.

at 42a). On March 9, 1987, respondent Walsh moved to

dismiss the second complaint as well (id. at 13a-14a).

With the consent of all parties, the district court, on

March 9, 1987, heard argument on the procedural issues

relevant to both complaints (Pet. App. 13a-14a). Then, on

March 12, 1987, the district court dismissed both com-

plaints (id. at Sa-24a). Without resolving the questions

raised concerning petitioner’s standing or the constitu-

tionally of the Act, the court determined that petitioner

had “not alleged a sufficient hardship to meet the ripeness

standard and to [allow] anticipatory judicial involvement

in the ongoing criminal investigation” (id. at 14a). It noted

that “[c]ourts have almost never found that an ongoing

criminal investigation imposes a sufficient hardship to the

person investigated to warrant judicial review prior to his

or her indictment” (id. at 17a). And the court found that

petitioner’s allegations were not sufficient to bring this

case within the “extraordinary circumstances” exception to

the general rule, because petitioner’s “only claim of injury

is that he is the subject of an investigation which is headed

by a public official who is, he alleges, without that

authority” (id. at 21a), and because “[t}his ‘injury’ does not

rise to the level of concrete hardship warranting judicial

_review at this time” (ibid.). Rather, given the nature of the

injury alleged, the court determined that “Colonel North,

like any other potential criminal defendant, can raise his

objections by appropriate motion, if and when an indict-

ment is entered” (id. at 23a). On that premise, the court

ruled that petitioner’s “challenge to the constitutionality of

the independent counsel machinery is not ripe for ad-

judication” (id. at 24a).

3. Petitioner promptly filed a notice of appeal.

Respondent Walsh answered with a motion for summary

affirmance based principally on the court of appeals’ re-

cent decision in Deaver v. Seymour, 822 F.2d 66 (D.C.

Cir. 1987), cert. denied, No. 86-2026 (Oct. 5, 1987) (Pet.

App. 70a-85a).2 While that appeal was pending, however,

petitioner refused to comply with a subpoena issued by the

grand jury that respondent Walsh had empaneled to in-

vestigate the Iran/Contra matter and was accordingly held

in contempt by the district court. On appeal of that con-

tempt order, the court of appeals found that petitioner’s

challenge to the validity of respondent Walsh’s status as

prosecutor was ripe for review, but that a remand was

necessary so that the district court could initially decide

whether the parallel appointment by the Attorney General

mooted the constitutional question that petitioner had

raised. In re Sealed Case, 827 F.2d 776 (1987) (North 1).

On remand, the district court ruled that the Attorney

General’s parallel appointment of respondent Walsh was

valid and that resolution of petitioner’s constitutional

challenge was unnecessary. In August 1987, the court of

appeals affirmed the district court’s judgment in all

2 The Deaver case also involved the dismissal on procedural

grounds of a challenge to the constitutionality of the appointment of

an Independent Counsel. In Deaver, the court of appeals held that an

assertion that the imminent return of an indictment threatened ir-

reparable injury was not a sufficient basis for allowing a plaintiff to

maintain an ancillary civil challenge to a criminal investigation.

Rather, the court determined that Federal Rule of Criminal Procedure

12(b)(1), which permits a criminal defendant to raise arguments con-

cerning the alleged constitutional infirmities of the proceeding against

him as a defense following indictment, provides an adequate remedy

in such cases.

6

respects. Jn re Sealed Case (North Il), 829 F.2d 50 (1987).

On January 19, 1988, this Court denied a petition for a

writ of certiorari from that judgment (No. 87-869).

4. Prior to this Court’s denial of the petition from the

judgment in Jn re Sealed Case (North 11), the court of ap-

peals summarily affirmed the district court’s dismissal of

petitioner’s complaints in this case (Pet. App. la-4a). The

court of appeals found that “Colonel North, like the ap-

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

1987), has impermissibly attempted to attack collaterally a

pending criminal investigation through the maintenance of

a separate civil action” (Pet. App. 2a). The court explained

that “[iJt is clear, after Deaver, that potential criminal

defendants ‘cannot, by bringing ancillary equitable pro-

ceedings, circumvent federal criminal procedure’ ” (ibid.

(citation omitted)}.3

ARGUMENT

1. Petitioner asks the Court to decide (Pet. i)

“(whether the target of a federal criminal investigation be-

ing conducted in violation of the Constitution and laws of

the United States is absolutely barred from seeking

declaratory or injunctive relief from that investigation in

federal court.” But, in Jn re Sealed Case (North II, the

court held “that Walsh and his associate counsel derive the

necessary legal authority from the Aitorney General’s

regulation of March 5, 1989” (829 F.2d at 62) and, further-

more, that petitioner cannot establish any cognizable

harm to support a ripe constitutional challenge (because

* Following the decision in this case, the court of appeals in another

proceeding held the Independent Counsel provisions of the Ethics

in Government Act to be unconstitutional./n re Sealed Case (Olson),

No. 87-5261 (D.C. Cir. Jan. 22, 1988), appeal docketed, No. 87-1279

(Feb. 1, 1988).

AA ee a ene a)

7

respondent Walsh’s parallel appointment vests him with

“identical authority” to that provided by the Act) (id. at

61-62). Thus, even if, under some circumstances, a federal

court could grant equitable relief to the target of a federal

criminal investigation being conducted in violation of the

Constitution and the laws of the United States, it would be

improper to grant such relief to petitioner in this case. The

court of appeals has already decided, in a final judgment

that this Court has declined to review, that respondent

Walsh is authorized by the Attorney General’s appoint-

ment to conduct the Iran/Contra investigation. The deci-

sion in that case has disposed of the premise on which peti-

tioner’s request for equitable relief was based and thus

deprives petitioner’s legal issue of any practical effect.

2. Even disregarding the effect of the ruling upholding

respondent Walsh’s authority to conduct the Iran/Contra

investigation, it is clear that review by this Court is not

warranted. The petition mischaracterizes the judgment of

the court below and thus suggests a conflict among the cir-

cuits that does not actually exist.

Contrary to petitioner’s repeated suggestion (Pet. i, 6, 8,

9, 10-11, 14-16), the court of appeals did not hold that the

target of a federal criminal investigation is absolutely

barred from seeking declaratory or injunctive relief from

that investigation in federal court. No such question was

presented for review by the court below. The only question

presented for the court’s review was whether the target of a

pending criminal investigation may obtain such relief

where the only injury he claims is that he is the subject of

an investigation headed by a public official who is alleged-

ly without authority to conduct the investigation. The

court of appeals held (Pet. App. 2a, 4a) that, where only

that kind of injury is alleged, the target of the criminal in-

vestigation may not obtain declaratory or injunctive relief.

8

That holding is a far cry from the absolute rule against

judicial interference with a pending criminal investigation

‘that petitioner alleges the court adopted in this case.

The decision below therefore does not, as petitioner sug-

gests (Pet. 6-11), conflict with the decision in either

Olagues v. Russoniello, 797 F.2d 1511 (9th Cir. 1986) (en

banc), vacated and remanded with instructions that the

case be dismissed as moot, No. 86-1217 (Oct. 5, 1987), or

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

ment of the Ninth Circuit in Olagues has been vacated as

moot and for that reason clearly cannot be relied upon to

support a claim of conflict with the judgment here.

Moreover, neither Olagues nor Smith concerned the ques-

tion whether a court may declare unlawful or enjoin a

pending criminal investigation where the only constitu-

tional claim in issue relates to the authority of the prose-

cutor to conduct the investigation in the first instance.

Rather, the courts in Olagues and Smith addressed ques-

tions concerning whether a federal court may entertain

prayers for declaratory and injunctive relief where the

constitutional claim raised relates to the “chilling effect”

an investigation has on First Amendment or voting rights.

Both courts held that, where such injuries are alleged, a

federal court has equitable authority to entertain a pre-

indictment challenge to the conduct of the investigation.

See also Juluke v. Hodel, 811 F.2d 1553 (D.C. Cir. 1987).

Whether or not those holdings are correct, they address

claims that, as both the district court here and the panel in

Deaver recognized (Pet. App. 22a n.13, 76a, 78a-79a &

n.8, 84a-85a), are quite different from the claim raised in

this case. Where, as here, an individual alleges only that he

is subject to an investigation that is headed by a public of-

ficial without authority to conduct it, the individual’s

ability to raise the invalidity of the investigation as a

defense to any ensuing indictment is an adequate remedy.

9

Equitable relief is therefore unwarranted. See Younger v.

Harris, 401 U.S. 37, 46 (1971); Douglas vy. City of Jean-

nette, 319 U.S. 157, 163 (1943); Cobbledick v. United

States, 309 U.S. 323, 325 (1940).

Petitioner similarly errs in suggesting (Pet. 11-16) that

the decision below ignores or conflicts with this Court’s

decisions in Younger v. Harris, supra, or Steffel v.

Thompson, 415 U.S. 452 (1974). While, as petitioner sug-

gests, the decision in Younger was “reinforced” by

federalism principles, the “first ground for the Younger

decision was ‘the basic doctrine of equity jurisprudence

that courts of equity * * * should not act to restrain a

criminal prosecution{] when the moving party has an ade-

quate remedy at law.’ ” Pennzoil Co. v. Texaco, Inc., No.

85-1798 (Apr. 6, 1987), slip op. 7 (citation omitted). Thus,

contrary to petitioner’s suggestion, the lower federal

courts, including the District of Columbia Circuit, have

uniformly held that, to the extent they are subject to legal

challenge at all, federal! criminal investigative activities

may be enjoined or declared unlawful only in the most

“extraordinary circumstances.” See, e.g., Reporters Com-

mittee for Freedom of the Press v. American Telephone &

Telegraph, 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). Similarly, while Sreffe/ did hold,

as petitioner suggests, that there are some cases in which

declaratory but not injunctive relief may issue (415 U.S. at

466-473), the “extraordinary circumstances” standard ap-

plies to prayers for declaratory as well as for injunctive

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

The court of appeals simply affirmed the district court’s

conclusion (Pet. App. 17a-23a) that Younger’s “exiraor-

dinary circumstances” standard was not satisfied by peti-

tioner’s allegations. The judgment of the court of appeals

is therefore in no sense inconsistent with Yourger or

Steffel.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

JAMES M. SPEARS

Deputy Assistant Attorney General

DOUGLAS LETTER

DWIGHT G. RABUSE

Attorneys /

FEBRUARY 1988

vy U.S. GOVERNMENT PRINTING OFFICE: 1988—202-037/60269