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March 11, 1987

Michael K. Deaver, Plaintiff,
Whitney North Seymour, Jr., Defendant

Thomas Penfield Jackson, U.S. District Judge.

The opinion of the court was delivered by: JACKSON

Thomas Penfield Jackson, U.S. District Judge


 Plaintiff Michael K. Deaver, a former Presidential assistant and deputy chief of the White House staff, sues for declaratory and injunctive relief against defendant Whitney North Seymour, Jr., an Independent Counsel appointed under the Ethics in Government Act of 1978 (the "Act"), 28 U.S.C. §§ 49, 591-98, who expects shortly to cause Deaver to be indicted for perjury. Deaver contends that the Act, from which Seymour derives such power as he may have to investigate, indict, and prosecute him, is unconstitutional in several respects in which it allegedly violates the principle of the separation of governmental powers, and prays that the Court declare the Act invalid, permanently enjoin all further activity of the Independent Counsel directed towards him, and, in effect, impound the evidence Seymour has gathered to date.

 The Court temporarily restrained Seymour's return of an indictment on February 25, 1987, and the matter is now before the Court on Deaver's motion for a preliminary injunction to the same effect pending disposition on the merits. *fn1" For the reasons set forth below, the Court will deny the motion for a preliminary injunction and stay further proceedings herein.

 For present purposes the material facts appear of record and are not in dispute. On May 29, 1986, at the instance of the Deputy Attorney General, Seymour, a private New York lawyer holding no other present office under the United States, was appointed Independent Counsel by an order of a special division of the United States Court of Appeals for the District of Columbia Circuit (itself a creature of the Act, 28 U.S.C. § 49), to "investigate and pursue" certain specific allegations of criminal misconduct by Deaver in his post-governmental-service lobbying activities, and to prosecute him for any violations he found. On December 16, 1986, upon Seymour's own petition, his authority was expanded to include the investigation and prosecution of possible instances of conspiracy, obstruction of justice, and perjury by Deaver and others in connection with the investigation, and a separate allegation of perjury by Deaver in testimony before a House of Representatives subcommittee.

 On February 25, 1987, hours before Seymour was to ask the federal grand jury hearing his evidence to return a four-count indictment against Deaver for perjury, Deaver filed the instant action and secured the temporary restraining order.

 Deaver claims that the formal commencement of his prosecution by Seymour would cause him immediate injury which neither his exoneration after trial nor a subsequent ruling that Seymour was without authority to bring him to trial at all would repair. Seymour now responds that Deaver has a remedy which, if not optimum (affording no opportunity for an immediate appeal), is nevertheless legally adequate: once indicted, he may move to dismiss the charges prior to trial pursuant to Fed.R.Crim.P. 12 (b)(1) for "defects in the institution of the prosecution." The Court agrees.

 There are, moreover, other elements of a meritorious application for a preliminary injunction (as to which the moving party has the burden) which the Court finds that Deaver has failed to establish, *fn2" the most important being a likelihood of ultimate success on the merits. The Court has had the benefit of substantial scholarship from not only the parties but several amici curiae. Despite the confidence with which they have advanced case law and constitutional reasoning in support of their respective positions, this Court remains unconvinced that any result is clearly foreordained by the authorities so far cited to it. The prospect of a citizen-prosecutor, who is: (1) chartered by an Article III court of special jurisdiction proceeding ex parte in closed session; (2) armed with all of the powers of the Attorney General of the United States but only minimally accountable - and that to Congress and the special court - for their use; and (3) removable only for provable improprieties or personal debility, is a constitutional hybrid which neither the framers of the Constitution nor any court since expressly contemplated. Nevertheless, such scant truly relevant authority as there is on the subject suggests to this Court that the arrangement, on its face, will probably not be found to offend the Constitution, *fn3" and there are no specific instances of the statute's misapplication to him alleged by Deaver that are presently ripe for adjudication.

 Moreover, the public interest - another factor to be considered in passing upon an application for preliminary injunctive relief - requires that questions as to the validity of Independent Counsel provisions of the Act be quickly and definitively resolved, as well as that any possible violations of the criminal law be speedily prosecuted. The former is most likely to be accomplished on an appeal from this ruling, and the latter by allowing Independent Counsel Seymour to bring forth his indictment.

 For the foregoing reasons, therefore, it is this 11th day of March, 1987,

 ORDERED, that plaintiff's motion for a preliminary injunction is denied; and it is

 FURTHER ORDERED, sua sponte, that all further proceedings herein are stayed pending completion of appellate review of this Order. *fn4"


 Upon consideration of the motion filed on behalf of the Speaker and Bipartisan Leadership Group of the U.S. House of Representatives to intervene as a party-defendant, it is, this 10th of March, 1987,

 ORDERED, that the motion to intervene is denied without prejudice, but the applicants are granted leave to participate herein as amicus curiae, and their Memorandum in Support of Independent Counsel's Motion to Dismiss and in Opposition to Plaintiff's Motion for Injunctive Relief shall be filed as part of the record as a brief amicus curiae.

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