829 F.2d 50 (D.C. Cir. 1987), 87-5247, In re Sealed Case

Docket Nº:87-5247.
Citation:829 F.2d 50
Party Name:In re SEALED CASE.
Case Date:August 20, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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829 F.2d 50 (D.C. Cir. 1987)

In re SEALED CASE.

No. 87-5247.

United States Court of Appeals, District of Columbia Circuit

August 20, 1987

Argued Aug. 5, 1987.

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Appeal from the United States District Court for the District of Columbia (Misc. No. 87-00139).

Barry S. Simon, with whom Brendan V. Sullivan, Jr., Terrence O'Donnell and Nicole K. Seligman, Washington, D.C., were on brief, for appellant.

Paul L. Friedman, Washington, D.C., with whom Guy Miller Struve, New York City, Jeffrey Toobin, Washington, D.C., and James E. McCollum, Washington, D.C., were on brief, for appellee.

James M. Spears, Deputy Asst. Atty. Gen., Dept. of Justice, with whom Joseph E. diGenova, U.S. Atty., Richard K. Willard, Asst. Atty. Gen., Robert Kopp, Douglas N. Letter, Thomas Millet and Harold J. Krent, Attys., Dept. of Justice, Washington, D.C., were on brief, for amicus curiae, U.S., urging affirmance.

Before RUTH BADER GINSBURG, WILLIAMS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

Opinion concurring in part and dissenting in part filed by Circuit Judge WILLIAMS.

D.H. GINSBURG, Circuit Judge:

Lt. Col. Oliver North appeals an order of the district court holding him in contempt for refusing to comply with a grand jury subpoena. North challenges the contempt order on the ground that it was issued by a grand jury presided over by Independent Counsel Lawrence Walsh and his associate counsel who, North contends, lack the legal authority to conduct that grand jury proceeding. North can prevail only if we find that Walsh's investigation cannot rely on either of two claimed sources of authority: (1) the December 19, 1986, appointment of Walsh as an independent counsel under the Ethics in Government Act 1 (Ethics Act), or (2) the Attorney General's March 5, 1987, delegation of investigative and prosecutorial authority of his own to Walsh. North raises constitutional challenges to both sources of authority as well as statutory challenges to the Attorney General's delegation.

On remand from the previous appeal to this court, the district court upheld the authority of Walsh and his associate counsel under the Attorney General's appointment. 2 The district court also held that it was unnecessary to address the question of the constitutionality vel non of the independent counsel provisions of the Ethics Act. We affirm each holding as well as the district court's order of July 10, 1987, directing North to comply with the subpoena.

I. BACKGROUND

  1. Appointment by the Special Division

    Pursuant to the Ethics Act, 28 U.S.C. Sec. 592(c)(1), the Attorney General on December 4, 1986, filed an application with the Independent Counsel Division of this court (the "Special Division") seeking the appointment of an independent counsel with jurisdiction

    to investigate whether violations of U.S. federal criminal law were committed by Lieutenant Colonel Oliver L. North, other United States Government officials, or other individuals acting in concert with Lieutenant Colonel North or with other United States Government officials, whether or not covered by the Independent Counsel provisions of the Ethics in Government Act, from in or around January 1985 (the exact date being unknown) to the present, in connection with the sale or shipment of military arms to Iran and the transfer or diversion of funds

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    realized in connection with such sale or shipment. The independent counsel should have jurisdiction sufficiently broad to investigate and prosecute any and all violations of U.S. federal criminal law which his or her investigation may establish in this matter, and any related matters over which the independent counsel may request or accept jurisdiction pursuant to 28 U.S.C. Sec. 594(e).

    On December 19, 1986, the Special Division filed an order, pursuant to its authority under 28 U.S.C. Sec. 593(b), appointing Walsh as independent counsel, thereby conferring upon him, within the jurisdiction it prescribed, "all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department," with exceptions not here relevant, pursuant to 28 U.S.C. Sec. 594(a). 3 In exercising its authority under 28 U.S.C. Sec. 593(b) to define the prosecutorial jurisdiction of the independent counsel, the Special Division granted Walsh jurisdiction beyond that requested by the Attorney General. Most significantly, the Special Division expanded the time frame of the inquiry into arms sales to Iran to include the period "since in or about 1984," rather than "from in or around January 1985," and the Special Division granted Walsh the additional jurisdiction to investigate "the provision or coordination of support for persons or entities engaged as military insurgents in armed conflict with the Government of Nicaragua since 1984." Soon after the Special Division announced Walsh's appointment, the President issued a statement saying that "Mr. Walsh has my promise of complete cooperation, and I have instructed all members of my administration to cooperate fully with the investigation in order to ensure full and prompt disclosure." 4

  2. Appointment by The Attorney General

    Exercising his authority under 28 U.S.C. Sec. 594(a)(1), Walsh empaneled a grand jury in this district on January 28, 1987. On February 24, 1987, North filed a complaint claiming that the independent counsel provisions of the Ethics Act are unconstitutional, and seeking to enjoin the grand jury proceedings. 5 In response to this constitutional challenge to Walsh's authority, the Attorney General on March 5, 1987, promulgated a regulation designed "to assure the courts, Congress, and the American people that [Walsh's] investigation will proceed in a clearly authorized and constitutionally valid form regardless of the eventual outcome of [North's] litigation." 6

    In accordance with the Attorney General's expressed intent "to make certain that the necessary investigation and appropriate legal proceedings can proceed in a timely manner," 7 the regulation established the "Office of Independent Counsel: Iran/Contra"--under the direction of an Independent Counsel to be appointed by the Attorney General--and delegated to that Counsel authority identical to that provided to an independent counsel by the Ethics Act. 8 The regulation also sets forth the jurisdiction of the "Independent Counsel: Iran/Contra" 9 in exactly the same terms employed by the Special Division in establishing the jurisdiction of Independent Counsel Walsh. The regulations' provisions relating to the removal of the "Independent Counsel: Iran/Contra" also largely parallel those found in the Ethics Act. 10 In particular, the regulation sets forth the

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    same grounds for removal as does the Ethics Act, 11 and it provides that "an Independent Counsel originally appointed by court order shall have such rights of review as provided by said order and by section 596(a)(3) of Title 28 of the United States Code." 12 The provisions of the regulation concerning "reporting and congressional oversight" and "relationship with components of the Department of Justice" are also virtually identical with parallel provisions in the Ethics Act. 13 The regulation also includes provisions that state:

    (a) Nothing in this chapter is intended to modify or impair any of the provisions of the Ethics in Government Act relating to Independent Counsel (sections 591-598 of Title 28 of the United States Code), or any order issued thereunder.

    (b) If any provision of the Ethics in Government Act relating to Independent Counsel (sections 591-598 of Title 28 of the United States Code) or any provision of this chapter is held invalid for any reason, such invalidity shall not affect any other provision of this chapter, it being intended that each provision of this chapter shall be severable from the Act and from each other provision. 14

    On March 5, 1987, the date the Attorney General's regulation was promulgated, Independent Counsel Walsh signed an Appointment Affidavit naming him Independent Counsel: Iran/Contra.

  3. North's Challenges to Walsh's Authority

    In response to the Attorney General's regulation of March 5, 1987, North filed on the following day a new complaint in district court, 15 which was later consolidated with his previously filed petition for injunctive relief. On March 12, 1987, the district court rendered its decision in both actions. 16 Citing Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1970), for the proposition that "a party who seeks to enjoin a criminal investigation has a particularly heavy burden," 17 the district court denied North's request that it enjoin the on-going grand jury investigation, stating that "Colonel North, like any other potential criminal defendant, can raise his objections by appropriate motions, if and when an indictment is entered." 18

    Subsequent to the district court's dismissal of his complaint seeking injunctive relief, the grand jury issued a subpoena to North, with which he refused to comply. The district court having thereupon held him in contempt, North appealed to this court. In support of the contempt order, Walsh and the Attorney General argued that North's challenge to the prosecutor's legal authority was no more ripe for review then than it had been when he sought civil injunctive relief raising the same challenge. We disagreed, 19 concluding that a recalcitrant witness' "claim that a subpoena was applied for and issued under the signature

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    of unauthorized persons" 20 was ripe for review under United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971), which stated:

    If, as he claims, the subpoena is unduly burdensome or otherwise unlawful, he may refuse to...

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