In re Sealed Case, Misc. No. 87-0139.

Citation666 F. Supp. 231
Decision Date10 July 1987
Docket NumberMisc. No. 87-0139.
PartiesIn re SEALED CASE.
CourtUnited States District Courts. United States District Court (Columbia)

Brendan V. Sullivan, Jr., Terrence O'Donnell, Barry S. Simon and Nicole K. Seligman, Williams & Connolly, Washington, D.C., for movant.

Paul L. Friedman, Guy Miller Struve, James E. McCollum, Jr. and Jeffrey Toobin, Office of Independent Counsel, Washington, D.C., for respondent.

Richard K. Williard, Asst. Atty. Gen., Joseph diGenova, U.S. Atty., James M. Spears, Deputy Asst. Atty. Gen., David J. Anderson and Thomas Millet, Civil Div., Dept. of Justice, Washington, D.C., for amicus curiae.

MEMORANDUM AND ORDER

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.1 He relied on "the authority vested in (him) by 28 U.S.C. §§ 509,2 510,3 and 515,4 and 5 U.S.C. § 301,5 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, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), that the Attorney General has such authority. In discussing the regulation issued by the Attorney General which appointed the Watergate Special Prosecutor,6 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 Stated 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, 94 S.Ct. at 3100. 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 statutes expressly relied on by the Attorney General confer such power.7

Even in light of the above-cited precedent, Lt. Col. North argues that the Attorney General's regulation is unconstitutional because it limits the power of the Attorney General and the President to remove Mr. Walsh without cause. According to the regulation,

"An Independent Counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity or any other condition that substantially impairs the performance of the Independent Counsel's duties."

52 Fed.Reg. 7270, 7272. This contention has also been addressed by the Supreme Court and this District Court. As the Court noted in Nader v. Bork, supra, when it found the firing of Archibald Cox illegal as a violation of the Attorney General's regulation, "the Supreme Court has twice held that an Executive Department may not discharge one of its officers in a manner inconsistent with its own regulations concerning such discharge." 366 F.Supp. at 108 (citing Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). In this case, like in Nader, the Attorney General has voluntarily limited the discretion of the Executive Branch to remove officials at will. This action does not violate the Constitution.

Once it is determined that the Attorney General may appoint an Independent Counsel to assist him in the execution of his duties, the focus of the Court's inquiry must turn to the specific facts of this case. Here, the Attorney General appointed as Independent Counsel to investigate the Iran/Contra affair the same individual who was already serving in the same capacity under the Ethics in Government Act. Lt. Col. North asserts that this appointment violates section 597(a) of the Act which provides:

Whenever a matter is in the prosecutorial jurisdiction of a independent counsel or has been accepted by a independent counsel under section 594(e) of this title, the Department of Justice shall suspend all investigations and proceedings regarding such matter, except to the extent required by section 594(d) of this title, and except insofar as such independent counsel agrees in writing that such investigation or proceedings may be continued by the Department of Justice.

Although the Office of Independent Counsel: Iran/Contra must be within the Department of Justice given the source of the Attorney General's authority to promulgate the regulation, the appointment of Mr. Walsh does not violate § 597(a). Attached as Exhibit 5 to the Memorandum of Independent Counsel is the Appointment Affidavit of Mr. Walsh as Independent Counsel under the regulation. Mr. Walsh's signature on this form indicates that he, although Independent Counsel under the Ethics in Government Act, consented to the Attorney General's appointment of him as Independent Counsel under the regulation. Mr. Walsh knew that the scope of his authority, the degree of his independence, and the particulars of his office under the regulation are identical with those under the Ethics in Government Act. Although he believed his new office to be outside the Department of Justice, his acceptance of the appointment under the regulation indicated his consent to the precise set of duties and relationships described in the regulation. His execution of the appointment affidavit, therefore, satisfied the requirements of 28 U.S.C. § 597(a).

The Vesting of Authority Under the Regulation in Mr. Walsh and His Associates

Although the Court has held above that nothing in the Constitution or Statutes of the United States bars the appointment of Independent Counsel: Iran/Contra, the Court must determine whether this authority was properly vested in Mr. Walsh and his associates.

Lt. Col. North makes only one argument that Mr. Walsh himself was not properly vested with authority under the regulation —that he could not accept the position because he did not understand that his office would be within the Department of Justice. As stated above, Mr. Walsh was aware of the particulars of his new office when he accepted it. His misconception of where the office was located within the Executive Branch, therefore, did not negate his express acceptance of the appointment. Mr. Walsh's authority under the regulation is clear.

A more difficult question concerns the validity of Mr. Walsh's appointments of associate Independent Counsel.8 The record is clear that none of Mr. Walsh's associates executed affidavits pursuant to their appointments under the Attorney General's regulation. Attached as Exhibit 3 to...

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