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NORTH v. WALSH

March 12, 1987

OLIVER L. NORTH, Plaintiff,
v.
LAWRENCE E. WALSH, Independent Counsel and EDWIN MEESE, III, Attorney General, Defendants



The opinion of the court was delivered by: PARKER

 Barrington D. Parker, Senior District Judge:

 This case, brought by plaintiff Lt. Colonel Oliver L. North, seeks declaratory and injunctive relief against implementation of certain provisions of the Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (1978), 28 U.S.C. §§ 591-98 ("Ethics Act" or "Act"). The Ethics Act provides for the appointment of an independent counsel to investigate and prosecute certain members of the Executive Branch of the federal government charged with criminal conduct. The defendants are Lawrence E. Walsh, the Independent Counsel appointed pursuant to the Act, and Edwin Meese, III, the United States Attorney General.

 Plaintiff asserts that the Independent Counsel provisions of the Act offend the principle of separation of powers and are thus constitutionally infirm. Because North challenges the validity of an ongoing criminal investigation, which has not resulted in an indictment or criminal prosecution against him or any other person, the Independent Counsel and the Attorney General contend that his constitutional argument should not be considered until the investigation has run its course and an indictment, if any, is returned by a grand jury. In short, they argue that at this time plaintiff's constitutional argument should not be considered. The Court agrees. Defendants' procedural challenges are well taken and the complaint is dismissed. The reasons for that determination are set out in this Opinion. *fn1"

  I.

 BACKGROUND

 A.

 The Ethics in Government Act

 The independent counsel machinery challenged here was a response to Congress' concern that the Department of Justice had experienced in the past, and would continue to experience, difficulty in investigating and prosecuting members of the Executive Branch. S. Rep. No. 95-170, 95th Cong., 1st Sess. 3 (1977). Thus, the Congress sought to eliminate any potential improprieties stemming from the Executive Branch investigating its own officers. The necessity for such legislation was underscored by the recent events surrounding the Watergate scandal, including the dismissal of Special Prosecutor Archibald Cox by President Nixon. The Senate proposed as early as June of 1974 that a permanent Office of the Public Attorney be established to investigate criminal cases that could lead to potential conflicts of interest within the executive branch. Final Report of the [Senate] Select Committee on Presidential Campaign Activities, S. Rep. No. 93-981, 93rd Cong., 2d Sess. 96 (1974). Committees of both the House and the Senate conducted extensive hearings beginning in 1975 and culminating three years later in the enactment of the Ethics Act with its independent counsel provisions.

 The proposed legislation received widespread support from the legal community. While the bills that were to become the Act were being considered by the House and Senate committees, *fn2" the American Bar Association, professional and public interest groups, and legal scholars expressed their support for the special prosecutor mechanism. *fn3"

 The legislative efforts expended by the Congress finally bore fruit. Differences between the Senate-passed bill and the bill reported to the House were ironed out in conference, and the special prosecutor legislation was signed into law by the President as Title VI of the Ethics in Government Act of 1978.

 A reauthorization amendment passed in 1983 extended the law for five years. The present law expires on January 2, 1988, and it is anticipated that the Congress will consider this year whether to extend the law and, if so, whether to amend it.

 1.

 The Ethics in Government Act set in place a procedure for the judicial appointment of an independent counsel to investigate certain members and former members of the Executive Branch. Pub. L. No. 95-521, tit. vi, 92 Stat. 1867-75 (codified as amended at 28 U.S.C. §§ 591-98). The relevant provisions of the statute as applied to this proceeding are briefly summarized.

 The Chief Justice assigns three judges to a special division of the United States Court of Appeals for the District of Columbia Circuit, created for the purpose of appointing the Independent Counsel. 28 U.S.C. § 49. Whenever the Attorney General receives information sufficient to constitute grounds to investigate allegations that any person covered under the Act *fn4" has committed a violation of any federal criminal law other than a petty offense, he shall conduct an investigation of the matter for a period not to exceed ninety 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, he is then required to apply to the special division of the Court for the appointment of an independent counsel and to provide sufficient information to assist in selecting the independent counsel and in defining his prosecutorial jurisdiction. 28 U.S.C. § 592(c)(1), 592(d)(1). Upon receipt of such application, the special division shall then appoint an appropriate independent counsel and define his prosecutorial mandate. 28 U.S.C. § 593(b).

 The independent counsel enjoys full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice and the Attorney General. 28 U.S.C. § 594(a). His investigative and prosecutorial functions are broad and authorize him to conduct proceedings before grand juries and other investigations; participate in court proceedings and engage in litigation where necessary; determine whether to contest assertions of testimonial privileges; apply for grants of immunity for any witness, or for warrants, subpoenas, or other court orders; inspect, obtain, or use tax returns; frame and sign indictments, file informations, and handle all aspects of any case in the name of the United States. Id.

 The independent counsel may request assistance from the Department of Justice and secure any of its records, files or other materials relevant to matters within his prosecutorial jurisdiction. 28 U.S.C. § 594(d). He is required to comply with the written or other established policies of the Department regarding criminal law enforcement where possible, *fn5" and has full authority to dismiss matters within his jurisdiction at any time prior to prosecution, if to do so would be consistent with such policies. 28 U.S.C. § 594(f), (g). If he should determine that any matter within his jurisdiction does not warrant prosecution, he must report to the appointing court the reasons for that determination. 28 U.S.C. § 595(b).

 The independent counsel may be removed only for cause by the Attorney General, who must then report to the appointing court and to Congress the specific reasons for the removal. 28 U.S.C. § 596(a)(1), (2). If so removed, he may seek judicial review of that action before the appointing court and may obtain ...


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