ORDER DENYING STAY
GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE
The Motion of the Attorney General for a stay is denied.
This prosecution is governed by the Ethics in Government Act (Independent Counsel statute), 28 U.S.C.A. § 591 et seq. (Supp. 1988). With a few limited exceptions not relevant here, section 594 and the pertinent Independent Counsel regulations, 28 C.F.R. §§ 600.1 and 601.1, place "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice" in the exclusive control of Independent Counsel Walsh. In particular, 28 U.S.C. § 594(a)(3) provides that the Independent Counsel's functions include "appealing any decision of a court in any case or proceeding in which such independent counsel participates in an official capacity." Independent Counsel Walsh opposes the motion.
The Attorney General's belated general appearance is wholly misplaced. As the Court has previously ruled, his only authority at this stage is his statutory prerogative under Section 6(e) of the Classified Information Procedures Act. He has not invoked that authority by filing the required affidavit. The Attorney General's attempt to appeal is therefore frivolous and at odds with the purposes of the laws establishing the Independent Counsel.
The Court will complete seating a jury and six alternates sometime this morning and will then inform the Clerk of the United States Court of Appeals for the District of Columbia Circuit that it is about to swear the jury and commence opening statements. The Court will, of course, abide by any instructions the Court of Appeals may have as to this matter at that time.
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