OLIVER L. NORTH, PETITIONER V. LAWRENCE E. WALSH, INDEPENDENT
COUNSEL, AND EDWIN MEESE, III, ATTORNEY GENERAL OF THE UNITED STATES

   No. 87-1094

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

   Brief for the Attorney General in Opposition

           TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The memorandum opinions of the court of appeals (Pet. App. 1a-2a,
3a-4a) are not yet reported.  The opinion of the district court (Pet.
App. 5a-24a) is reported at 656 F. Supp. 414.

                             JURISDICTION

   The judgments of the court of appeals were entered on October 1,
1987.  The petition for a writ of certiorari was filed on December 30,
1987.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether a federal court may enjoin or declare unlawful a criminal
investigation where the only injury alleged is that the investigation
is being conducted by a person without authority to do so.

                               STATEMENT

   1. The Ethics in Government Act of 1978, Pub. L. No. 95-521, 92
Stat. 1824, provides for the appointment of an independent counsel to
investigate and prosecute certain members of the Executive Branch
charged with criminal conduct.  Whenever the Attorney General receives
information sufficient to constitute grounds to investigate
allegations that a person covered by the Act has committed a violation
of any federal criminal law (other than a petty offense), the Act
requires that he conduct an investigation of the matter for a period
not to exceed 90 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, the Act requires that he apply to a
special division of the United States Court of Appeals for the
District of Columbia Circuit for the appointment of an Independent
Counsel.  28 U.S.C. 49, 592(c)(1) and (d)(1).  Upon receipt of such an
application, the special division of the court of appeals must appoint
an appropriate Independent Counsel and define a prosecutorial mandate.
 28 U.S.C. 593(b).  An Independent Counsel so appointed enjoys the
authority to exercise virtually all investigative and prosecutorial
functions and powers of the Department of Justice and the Attorney
General, including the authority to conduct proceedings before grand
juries, to apply for warrants, subpoenas, and other court orders, and
to frame indictments, file informations, and handle all aspects of a
case in the name of the United States.  28 U.S.C. 594(a).

   2. On December 4, 1986, respondent Attorney General Meese applied
for the appointment of an Independent Counsel to investigate whether
petitioner North and others may have violated any federal criminal
laws with regard to the transfer of arms to Iran or the disposal of
the resulting proceeds (Pet. App. 12a).  On December 19, 1986,
respondent Lawrence E. Walsh was appointed by the special division of
court as Independent Counsel to investigate this so-called
"Iran/Contra Affair" (ibid.).  Respondent Walsh promptly began his
investigation, empaneled a grand jury, served numerous subpoenas, and
otherwise explored various aspects of petitioner's participation in
the Iran/Contra Affair (ibid.).

   On February 24, 1987, petitioner filed suit against respondent
Walsh and respondent Attorney General Meese in the United States
District Court for the District of Columbia (Pet. App. 12a).
Petitioner challenged the authority of respondent Walsh to conduct his
investigation and sought a declaratory judgment that the independent
counsel provisions of the Ethics in Government Act are
unconstitutional (id. at 12a, 36a-38a).  /1/ On March 2, 1987,
respondent Walsh moved to dismiss the suit, arguing that petitioner
was engaged in an impermissible collateral attack on an ongoing
criminal investigation, that petitioner's claims were not ripe, and
that the disputed provisions of the Act are constitutional (id. at
12a-13a).  On March 5, 1987, respondent Attorney General Meese
similarly filed a motion to dismiss, joining in the procedural
arguments of respondent Walsh and additionally arguing that petitioner
lacked standing to challenge the Act's constitutionality (id. at 13a).

   To remove any doubt concerning respondent Walsh's authority to
conduct the investigation, the Attorney General, on that same day,
promulgated new regulations establishing an "Office of Independent
Counsel:  Iran/Contra" within the Department of Justice (29 C.F.R.
Pts. 600, 601) and appointed respondent Walsh to head the Office (Pet.
App. 13a).  Under that appointment, respondent Walsh was empowered to
investigate the same matters and activities that he had undertaken to
investigate pursuant to his appointment under the Act (ibid.).
Petitioner responded, on March 6, 1987, by filing a second complaint
in the district court, alleging that the new regulations and
appointment were legally infirm (id. at 42a).  On March 9, 1987,
respondent Walsh moved to dismiss the second complaint as well (id. at
13a-14a).

   With the consent of all parties, the district court, on March 9,
1987, heard argument on the procedural issues relevant to both
complaints (Pet. App. 13a-14a).  Then, on March 12, 1987, the district
court dismissed both complaints (id. at 5a-24a).  Without resolving
the questions raised concerning petitioner's standing or the
constitutionality of the Act, the court determined that petitioner had
"not alleged a sufficient hardship to meet the ripeness standard and
to (allow) anticipatory judicial involvement in the ongoing criminal
investigation" (id. at 14a).  It noted that "(c)ourts have almost
never found that an ongoing criminal investigation imposes a
sufficient hardship to the person investigated to warrant judicial
review prior to his or her indictment" (id. at 17a).  And the court
found that petitioner's allegations were not sufficient to bring this
case within the "extraordinary circumstances" exception to the general
rule, because petitioner's "only claim of injury is that he is the
subject of an investigation which is headed by a public official who
is, he alleges, without that authority" (id. at 21a), and because
"(t)his 'injury' does not rise to the level of concrete hardship
warranting judicial review at this time" (ibid.).  Rather, given the
nature of the injury alleged, the court determined that "Colonel
North, like any other potential criminal defendant, can raise his
objections by appropriate motion, if and when an indictment is
entered" (id. at 23a).  On that premise, the court ruled that
petitioner's "challenge to the constitutionality of the independent
counsel machinery is not ripe for adjudication" (id. at 24a).

   3. Petitioner promptly filed a notice of appeal.  Respondent Walsh
answered with a motion for summary affirmance based principally on the
court of appeals' recent decision in Deaver v. Seymour, 822 F.2d 66
(D.C. Cir. 1987), cert. denied, No. 86-2026 (Oct. 5, 1987) (Pet. App.
70a-85a).  /2/ While that appeal was pending, however, petitioner
refused to comply with a subpoena issued by the grand jury that
respondent Walsh had empaneled to investigate the Iran/Contra matter
and was accordingly held in contempt by the district court.  On appeal
of that contempt order, the court of appeals found that petitioner's
challenge to the validity of respondent Walsh's status as prosecutor
was ripe for review, but that a remand was necessary so that the
district court could initially decide whether the parallel appointment
by the Attorney General mooted the constitutional question that
petitioner had raised.  In re Sealed Case, 827 F.2d 776 (1987) (North
I).

   On remand, the district court ruled that the Attorney General's
parallel appointment of respondent Walsh was valid and that resolution
of petitioner's constitutional challenge was unnecessary.  In August
1987, the court of appeals affirmed the district court's judgment in
all respects.  In re Sealed Case (North II), 829 F.2d 50 (1987).  On
January 19, 1988, this Court denied a petition for a writ of
certiorari from that judgment (No. 87-869).

   4. Prior to this Court's denial of the petition from the judgment
in In re Sealed Case (North II), the court of appeals summarily
affirmed the district court's dismissal of petitioner's complaints in
this case (Pet. App. 1a-4a).  The court of appeals found that "Colonel
North, like the appellant in Deaver v. Seymour, 822 F.2d 66 (D.C. Cir.
1987), has impermissibly attempted to attack collaterally a pending
criminal investigation through the maintenance of a separate civil
action" (Pet. App. 2a).  The court explained that "(i)t is clear,
after Deaver, that potential criminal defendants 'cannot, by bringing
ancillary equitable proceedings, circumvent federal criminal
procedure'" (ibid. (citation omitted)).  /3/

                               ARGUMENT

   1. Petitioner asks the Court to decide (Pet. i) "(w)hether the
target of a federal criminal investigation being conducted in
violation of the Constitution and laws of the United States is
absolutely barred from seeking declaratory or injunctive relief from
that investigation in federal court." But, in In re Sealed Case (North
II), the court held "that Walsh and his associate counsel derive the
necessary legal authority from the Attorney General's regulation of
March 5, 1989" (829 F.2d at 62) and, furthermore, that petitioner
cannot establish any cognizable harm to support a ripe constitutional
challenge (because respondent Walsh's parallel appointment vests him
with "identical authority" to that provided by the Act) (id. at
61-62).  Thus, even if, under some circumstances, a federal court
could grant equitable relief to the target of a federal criminal
investigation being conducted in violation of the Constitution and the
laws of the United States, it would be improper to grant such relief
to petitioner in this case.  The court of appeals has already decided,
in a final judgment that this Court has declined to review, that
respondent Walsh is authorized by the Attorney General's appointment
to conduct the Iran/Contra investigation.  The decision in that case
has disposed of the premise on which petitioner's request for
equitable relief was based and thus deprives petitioner's legal issue
of any practical effect.

   2. Even disregarding the effect of the ruling upholding respondent
Walsh's authority to conduct the Iran/Contra investigation, it is
clear that review by this Court is not warranted.  The petition
mischaracterizes the judgment of the court below and thus suggests a
conflict among the circuits that does not actually exist.

   Contrary to petitioner's repeated suggestion (Pet. i, 6, 8, 9,
10-11, 14-16), the court of appeals did not hold that the target of a
federal criminal investigation is absolutely barred from seeking
declaratory or injunctive relief from that investigation in federal
court.  No such question was presented for review by the court below.
The only question presented for the court's review was whether the
target of a pending criminal investigation may obtain such relief
where the only injury he claims is that he is the subject of an
investigation headed by a public official who is allegedly without
authority to conduct the investigation.  The court of appeals held
(Pet. App. 2a, 4a) that, where only that kind of injury is alleged,
the target of the criminal investigation may not obtain declaratory or
injunctive relief.  That holding is a far cry from the absolute rule
against judicial interference with a pending criminal investigation
that petitioner alleges the court adopted in this case.

   The decision below therefore does not, as petitioner suggests (Pet.
6-11), conflict with the decision in either Olagues v. Russoniello,
797 F.2d 1511 (9th Cir. 1986) (en banc), vacated and remanded with
instructions that the case be dismissed as moot, No. 86-1217 (Oct. 5,
1987), or Smith v. Meese, 821 F.2d 1484 (11th Cir. 1987).  The
judgment of the Ninth Circuit in Olagues has been vacated as moot and
for that reason clearly cannot be relied upon to support a claim of
conflict with the judgment here.  Moreover, neither Olagues nor Smith
concerned the question whether a court may declare unlawful or enjoin
a pending criminal investigation where the only constitutional claim
in issue relates to the authority of the prosecutor to conduct the
investigation in the first instance.  Rather, the courts in Olagues
and Smith addressed questions concerning whether a federal court may
entertain prayers for declaratory and injunctive relief where the
constitutional claim raised relates to the "chilling effect" an
investigation has on First Amendment or voting rights.  Both courts
held that, where such injuries are alleged, a federal court has
equitable authority to entertain a pre-indictment challenge to the
conduct of the investigation.  See also Juluke v. Hodel, 811 F.2d 1553
(D.C. Cir. 1987).  Whether or not those holdings are correct, they
address claims that, as both the district court here and the panel in
Deaver recognized (Pet. App. 22a n.13, 76a, 78a-79a & n.8, 84a-85a),
are quite different from the claim raised in this case.  Where, as
here, an individual alleges only that he is subject to an
investigation that is headed by a public official without authority to
conduct it, the individual's ability to raise the invalidity of the
investigation as a defense to any ensuing indictment is an inadequate
remedy.  Equitable relief is therefore unwarranted.  See Younger v.
Harris, 401 U.S. 37, 46 (1971);  Douglas v. City of Jeannette, 319
U.S. 157, 163 (1943);  Cobbledick v. United States, 309 U.S. 323, 325
(1940).

   Petitioner similarly errs in suggesting (Pet. 11-16) that the
decision below ignores or conflicts with this Court's decisions in
Younger v. Harris, supra, or Steffel v. Thompson, 415 U.S. 452 (1974).
 While, as petitioner suggests, the decision in Younger was
"reinforced" by federalism principles, the "first ground for the
Younger decision was 'the basic doctrine of equity jurisprudence that
courts of equity * * * should not act to restrain a criminal
prosecution() when the moving party has an adequate remedy at law.'"
Pennzoil Co. v. Texaco, Inc., No. 85-1798 (Apr. 6, 1987), slip op. 7
(citation omitted).  Thus, contrary to petitioner's suggestion, the
lower federal courts, including the District of Columbia Circuit, have
uniformly held that, to the extent they are subject to legal challenge
at all, federal criminal investigative activities may be enjoined or
declared unlawful only in the most "extraordinary circumstances." See,
e.g., Reporters Committee for Freedom of the Press v. American
Telephone & Telegraph, 593 F.2d 1030, 1065 (D.C. Cir. 1978), cert.
denied, 440 U.S. 949 (1979);  Jett v. Castaneda, 578 F.2d 842, 845
(9th Cir. 1978).  Similarly, while Steffel did hold, as petitioner
suggests, that there are some cases in which declaratory but not
injunctive relief may issue (415 U.S. at 466-473), the "extraordinary
circumstances" standard applies to prayers for declaratory as well as
for injunctive relief.  See Kugler v. Helfant, 421 U.S. 117, 123
(1975).  The court of appeals simply affirmed the district court's
conclusion (Pet. App. 17a-23a) that Younger's "extraordinary
circumstances" standard was not satisfied by petitioner's allegations.
 The judgment of the court of appeals is therefore in no sense
inconsistent with Younger or Steffel.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   JAMES M. SPEARS

      Deputy Assistant Attorney General

   DOUGLAS LETTER

   DWIGHT G. RABUSE

      Attorneys

   FEBRUARY 1988

   /1/ Specifically, petitioner alleged that respondent Walsh, while
performing investigative and prosecutorial functions reserved to the
Executive under Article II of the Constitution, and thus purporting to
act as an Officer of the United States within the meaning of Art. II,
Section 2, had not been appointed by the President or by a Department
Head, as the Constitution requires.  Petitioner alleged that the
independent counsel provisions thus violated separation of powers
principles.  See Pet. App. 36a-38a.

   /2/ The Deaver case also involved the dismissal on procedural
grounds of a challenge to the constitutionality of the appointment of
an Independent Counsel.  In Deaver, the court of appeals held that an
assertion that the imminent return of an indictment threatened
irreparable injury was not a sufficient basis for allowing a plaintiff
to maintain an ancillary civil challenge to a criminal investigation.
Rather, the court determined that Federal Rule of Criminal Procedure
12(b)(1), which permits a criminal defendant to raise arguments
concerning the alleged constitutional infirmities of the proceeding
against him as a defense following indictment, provides an adequate
remedy in such cases.

   /3/ Following the decision in this case, the court of appeals in
another proceeding held the Independent Counsel provisions of the
Ethics in Government Act to be unconstitutional.  In re Sealed Case
(Olson), No. 87-5261 (D.C. Cir. Jan. 22, 1988), appeal docketed, No.
87-1279 (Feb. 1, 1988).