The opinion of the court was delivered by: ROBINSON, JR.
Aubrey E. Robinson, Jr., Chief Judge
Lt. Col. North, Movant in this matter, challenges the authority of Lawrence E. Walsh and his associates to issue subpoenas and conduct proceedings before the grand jury investigating what has become known to the public as the Iran/Contra Affair. His Motion challenges the constitutionality of the Ethics in Government Act, 28 U.S.C. §§ 49, 591-598 (1982 & Supp. III 1985) (the Act), under which this Office of the Independent Counsel was originally created, and alleges infirmities with the parallel appointment of Mr. Walsh to the Office of Independent Counsel: Iran/Contra by the Attorney General. See, 52 Fed. Reg. 7270 (1987) (to be codified at 28 C.F.R. Parts 600 and 601). The United States Court of Appeals for the District of Columbia Circuit decided on June 8, 1987 that Movant's challenges are ripe for review. In Re Sealed Case, 827 F.2d 776 (D.C. Cir. 1987) (per curiam).
In the Order remanding this matter, the Court of Appeals instructed:
Because the judiciary should rule on the constitutionality of an Act of Congress only as a last resort, the district court must determine whether this case can be resolved on other grounds. In this respect the district court should first consider, taking testimony as appropriate,
(1) whether the Attorney General has legal authority to delegate the powers which he purported to convey in the regulation set out at 52 Fed. Reg. 7270 (1987) (to be codified at 28 C.F.R. Parts 600 and 601), and if so, whether appropriate authority has been properly vested in Mr. Walsh and his associates; and
(2) whether any aspect of the relationship between the special division of this court and the Independent Counsel requires consideration of the constitutionality of the statute even if the Attorney General's appointment is otherwise valid.
Upon consideration of the evidence on these matters in the form of relevant documents and an affidavit from Associate Counsel Guy Miller Struve, this Court has determined that the parallel appointment of Mr. Walsh under the Attorney General's regulation was factually and legally valid and that appropriate authority has been vested in him and his associates. It is also determined that the limited relationship between the Special Division of the Court of Appeals for this Circuit and the Office of the Independent Counsel does not require consideration of the constitutionality of the act.
The Attorney General's Regulation
The Attorney General's Authority to Promulgate the Regulation
On March 5, 1987, the Attorney General promulgated a regulation creating an Office of Independent Counsel: Iran/Contra, defining its general powers and setting its jurisdiction.
He relied on "the authority vested in (him) by 28 U.S.C. §§ 509,
and 5 U.S.C. § 301,
and . . . the President's general responsibility to enforce the laws of the United States pursuant to Article II of the United States Constitution." 52 Fed. Reg. 7270, 7271 (March 10, 1987).
The first question raised in this matter is whether the Attorney General had the authority to seek assistance from an Independent Counsel in the function of his official duties. The Court need not prolong the discussion of this issue as the Supreme Court acknowledged in Nixon v. United States, 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974), that the Attorney General has such authority. In discussing the regulation issued by the Attorney General which appointed the Watergate Special Prosecutor,
the Court wrote:
Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 U.S.C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant to these statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.
Id. at 694. The authority and independence of the Watergate Special prosecutor was almost identical to that enjoyed by Mr. Walsh. Similarly, in Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973) the Court accepted that "the Attorney General derived his authority to hire (Special Prosecutor Archibald) Cox and to fix his term of service from various Acts of Congress". Id. at 108 (citing 5 U.S.C. § 301; 28 U.S.C. §§ 509-510). Although the Independent Counsel alleges other sources of the authority for the promulgation of the regulation, only the ...