judicial involvement in the ongoing criminal investigation. Therefore, the Court need not reach the question of whether plaintiff has standing.
The threshold procedural question presented is whether North's constitutional claims are ripe for adjudication at this time. In analyzing whether plaintiff's claims are ripe, the Court must address two factors. First, as a matter of constitutional importance, the Court must evaluate "the fitness of the issue for judicial review." Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). Second, the Court must consider "the hardship to the parties of withholding court consideration." Id.
Plaintiff's constitutional challenge to the Ethics in Government Act meets the first prong of the Abbott Laboratories test. He raises purely legal issues, challenging Congress' power to establish the Office of Independent Counsel as a prosecuting arm insulated from the control of the Executive Branch. He argues that the authority to prosecute the law vests exclusively in the Executive Branch. Any official who exercises prosecutorial powers must, accordingly, be appointed by the Executive and be removable at his unfettered discretion.
Plaintiff's complaint raises fundamental issues concerning the doctrine of separation of powers, issues which do not require the development of a factual record. His challenge strikes at the core of Walsh's authority to conduct a criminal investigation. The heart of his quarrel is with the very existence of the Office of Independent Counsel, not with the way the Independent Counsel has chosen to proceed with the investigation.
Whether or not defendant Walsh enters an indictment against North has no bearing on a challenge to the constitutional infirmities of the Act. The issues surrounding this challenge present a "case or controversy" sufficiently concrete to meet the first prong of the ripeness test. See Atlantic Richfield Co. v. U.S. Dep't of Energy, 248 U.S. App. D.C. 82, 769 F.2d 771, 783 (D.C. Cir. 1984) ("ARCO").
The second prong of the ripeness test raises prudential concerns and requires the Court to assess, in light of the "totality of the circumstances," whether the hardship to the parties of withholding consideration warrants immediate judicial review. ARCO, 769 F.2d at 783. Both plaintiff's challenge to the constitutionality of the statute, and the relief requested to enjoin the criminal investigation, persuade the Court to stay its hand and not to proceed with a consideration of the merits of plaintiff's claim.
It is established judicial doctrine that courts should exercise self-restraint when confronted with constitutional issues. E.g., Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 80 L. Ed. 688, 56 S. Ct. 466 (1936). (Brandeis, J., concurring) This case presents issues of particularly grave constitutional importance. North's arguments do not merely challenge the legality of the Office of Independent Counsel. His rather doctrinaire approach to separation of powers issues would require the Executive to reserve all prosecutorial powers for itself. Such a requirement would call into question the constitutionality of vesting prosecutorial power in independent agencies and other institutions. Therefore, in finding that plaintiff's claim is not ripe for review, the Court heeds the sage words of the late Judge Harold Leventhal of this Court:
We should be particularly mindful of that policy when we are asked to delineate, as we are in this case, the respective powers and duties of the major branches of government. That kind of broad issue enhances the general temptation of a record lacking concrete detail, toward abstractness in analysis and broad pronouncements unsuited to the subtle workings of our constitutional system.
Clark v. Valeo, 182 U.S. App. D.C. 21, 559 F.2d 642, 662 (D.C.Cir. 1977). (Leventhal, J., concurring.)
Judicial Policy Against Enjoining Criminal Investigations
The strong policy against intervening in ongoing criminal investigations also persuades the court to refrain from reviewing plaintiff's substantive claim. Courts 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. The standard for obtaining any form of injunctive relief is high, Younger v. Harris, 401 U.S. 37, 46, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), but a party who seeks to enjoin a criminal investigation has a particularly heavy burden. Our Court of Appeals in denying such equitable relief ruled that "only the most extraordinary circumstances warrant anticipatory judicial involvement in criminal investigations." Reporters Committee v. American Telephone and Telegraph, 192 U.S. App. D.C. 376, 593 F.2d 1030, 1065 (D.C. Cir. 1978) (reporters constitutional rights to free speech found insufficient to require advance notice for purposes of challenging third party releases of reporters' billing records to criminal investigation).
The Supreme Court has routinely rejected collateral challenges which impede ongoing criminal investigations. In the leading authority of Blair v. United States, 250 U.S. 273, 63 L. Ed. 979, 39 S. Ct. 468 (1919), subpoenaed witnesses refused to appear before the grand jury, contending that the law which the grand jury was enforcing, the Federal Corrupt Practices Act, was unconstitutional. The Court ordered the witnesses to testify, ruling that "an individual is not entitled to challenge the authority of the grand jury, provided they have a de facto existence and organization." Id. at 280
In this proceeding, plaintiff levies constitutional challenges against Walsh's position as Independent Counsel. But Walsh has de facto authority and his office "de facto existence." Defendant Walsh was appointed and is acting pursuant to a law enacted by Congress and signed by the President, a law which carries the presumption of constitutionality.
The rationale behind the judicial policy against intervening in a criminal investigation is threefold. First, the courts want to protect the public's interest in the fair and expeditious enforcement of the criminal laws. Permitting challenges at the pre-indictment stage would impede the criminal investigation by "saddling the grand jury with minitrials and preliminary showings." U.S. v. Dionisio, 410 U.S. 1, 17-18, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973). Second, the courts seek to balance the defendant's need to assert his rights against the judiciary's interest in conserving its resources. The criminal justice system is structured to provide the criminal defendant ample opportunity to vindicate his rights after he is indicted. See Fed. R. Crim. Proc. 12(b). Finally, principles of comity and separation of powers counsel courts against intervening in a criminal investigation conducted by another branch of government. See Reporters Committee v. AT&T, 593 F.2d at 1065. Ironically, enough, the very doctrine plaintiff invokes to strike down the Ethics in Government Act persuades the Court against addressing his claim on the merits.
Plaintiff attempts to distinguish the wealth of precedent against intervention in criminal proceedings on the grounds that his challenge strikes at the very authority of the investigative body to investigate, rather than at specific actions undertaken by it. Though plaintiff's distinction at first blush appears to have some merit,
it has been explicitly rejected by our Circuit, in Hastings v. Judicial Conference of the United States, 248 U.S. App. D.C. 180, 770 F.2d 1093 (D.C. Cir. 1985), cert. denied, 477 U.S. 904, 106 S. Ct. 3272, 91 L. Ed. 2d 562 (1986). In strikingly parallel circumstances, District Judge Hastings challenged the core authority of a committee of judges established by statute to investigate wrongdoing allegedly committed by members of the Judiciary. He argued that judges cannot exercise the powers of investigation and prosecution. These powers, he claimed, were prosecutorial tools vested in the Executive Branch. Despite Judge Hastings' challenge to the very authority of the investigating body, our Circuit refused to consider the constitutionality of the investigation. The Court concluded that his failure to show "a serious and irremediable injury" precluded "disruptive injunctive relief by federal courts." Id. at 1102.
Judge Hastings presented a stronger case for intervention than the one here. Because the investigation of Judge Hastings was a civil, not criminal, proceeding the court was less troubled by its possible interruption. Moreover, the injury to Judge Hastings resulting from being the subject of an allegedly unduly constituted investigation was both far greater than that faced by plaintiff here and more readily redressable. His investigation could have resulted in his impeachment. However, if the court were to have enjoined that investigation, he would have been free from any other investigation.
By contrast, the relief that plaintiff North seeks would not preclude alternative criminal investigations. In fact, at oral argument, plaintiff conceded that the United States Attorney would have authority to lead the investigation against him. Transcript of Proceedings (Mar. 9, 1987) at 68. Thus, plaintiff'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. This "injury" does not rise to the level of concrete hardship warranting judicial review at this time.
North does not cite a single case in which an ongoing criminal investigation was halted to support his claim for extraordinary relief.
Plaintiff's sole support for his position is a civil case in the Eleventh Circuit, In the Matter of Certain Complaints Under Investigation by an Investigating Committee of the Judicial Council of the Eleventh Circuit, 783 F.2d 1488 (11th Cir. 1986), cert. denied, 477 U.S. 904, 106 S. Ct. 3273, 91 L. Ed. 2d 563 (1986). There the Eleventh Circuit adjudicated the merits of Judge Hastings constitutional challenges to the Judicial Conduct statute which our Circuit concluded were unripe one year earlier. Subsequent to our Circuit's decision, the committee subpoenaed the Judge's law clerks and secretary. They refused to appear before the committee arguing that the Judiciary did not have the power to investigate and prosecute. Finding that the law clerks had "surrogate" standing to present Judge Hastings' constitutional claims, the court proceeded to the merits. When the subpoenaed witness called into question the constitutional legitimacy of the investigating body, the court concluded "it seems only reasonable that we should decide whether the very existence of the committee for its assigned purposes violates the Constitution before allowing the committee to intrude upon confidential communications." Id. at 1501. However, the Eleventh Circuit did not rely on any precedent to justify reaching the appellant's constitutional challenge before the termination of the investigation. In fact they admitted "the answer is not free from doubt." Id. at 1502. Taken alone, this opinion by the Eleventh Circuit is a weak reed upon which to support the extraordinary relief plaintiff requests. In light of our own Circuit's rejection of the reasoning subsequently adopted by the Eleventh Circuit, the Court finds no reason to grant the extraordinary relief he seeks.
Colonel North, like any other potential criminal defendant, can raise his objections by appropriate motions, if and when an indictment is entered.
The Nation demands an expeditious and complete disclosure of our government's involvement in the Iran/Contra affair. In serving this important public interest, the Independent Counsel is pursuing the investigation energetically and responsibly. The Executive Branch has spoken out in support of the vigorous and comprehensive investigation conducted by Walsh and has bestowed upon him a dual position within the Executive Branch to ensure that the investigation continues unimpeded. Despite this concerted effort by all to ensure that the investigation proceeds with dispatch, plaintiff North filed two actions seeking extraordinary injunctive relief. He asks the Court to intercede and to halt the investigation in its tracks.
The Court need not and should not hear plaintiff's challenges at this time. The plaintiff has not suffered an injury of sufficient keenness to warrant the Court's intercession. For that reason, the Court finds that plaintiff's challenge to the constitutionality of the independent counsel machinery is not ripe for adjudication and that his complaints should be dismissed.
An appropriate Order will be entered.
ORDER DISMISSING COMPLAINTS
The Court has filed on this date a Memorandum Opinion addressing the motions of defendants Lawrence E. Walsh and Edwin Meese, III to dismiss the complaint in the above cases and setting forth reasons in support of its conclusions. On basis thereof it is this 12th day of March, 1987,
That the defendants' motions to dismiss both complaints are granted and the plaintiff's complaints are hereby dismissed.