OLIVER L. NORTH, PETITIONER V. LAWRENCE E. WALSH, INDEPENDENT
COUNSEL
   No. 87-869
   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 United States as Amicus Curiae
            TABLE OF CONTENTS
   Questions Presented
   Interest of the United States
   Statement
   Argument
   Conclusion
                          QUESTIONS PRESENTED
   1. Whether the Attorney General may delegate his litigation
authority by regulation to an independent counsel he appoints, if he
retains the authority to rescind the regulation.
   2. Whether the failure to execute duplicative appointment documents
and oaths for the assistants to the Independent Counsel defeats their
authority to perform, under the Attorney General's regulations, the
same functions they are already performing under the independent
counsel provisions of the Ethics in Government Act.
   3. Whether, in light of the Attorney General's parallel appointment
of respondent as Independent Counsel, the district court and the court
of appeals correctly declined to reach the merits of petitioner's
constitutional challenge to the independent counsel provisions of the
Ethics in Government Act.
                     INTEREST OF THE UNITED STATES
   Petitioner is challenging the authority of Independent Counsel
Lawrence E. Walsh to conduct the "Iran/Contra" probe.  The Independent
Counsel is conducting his investigation under two separate grants of
authority:  an appointment made by a court pursuant to the Ethics in
Government Act of 1978 (Ethics Act), Tit. VI, 28 U.S.C. (& Supp. III)
591 et seq., and an appointment made by the Attorney General pursuant
to regulations that the Attorney General has promulgated, 28 C.F.R.
600. 1-600.5, 601.1.  /1/
   The United States is in complete accord with the goal underlying
the independent counsel provisions of the Ethics Act:  to assure
integrity in the investigation and, where appropriate, prosecution of
violations of law by high-level officials of the Executive Branch.  At
the same time, however, we note that serious questions regarding the
constitutionality of these provisions have cast a cloud over
investigations conducted pursuant to the authority.  /2/
   In order to ensure that the "Iran/Contra" investigation would go
forward unhampered by these unresolved constitutional questions, the
Attorney General made a parallel appointment of respondent to a
position within the Executive Branch and empowered him to conduct his
investigation under the authority of that appointment.  The Attorney
General made the parallel appointment by first establishing by
regulation the "Office of Independent Counsel:  Iran/Contra" within
the Department of Justice.  He then appointed respondent as
Independent Counsel in charge of that Office, vesting him with the
responsibility to investigate the same activities that respondent is
authorized to investigate under the auspices of the Ethics Act.  See
Pet. App. 53a- 62a;  28 C.F.R. 600.1-600.5, 601.1;  52 Fed. Reg.
7270-7273, 9241 (1987).
   The United States has an interest in defending the validity of the
Attorney General's regulations and the separate appointment of
respondent as Independent Counsel within the Justice Department
pursuant to those regulations.  The district court and the court of
appeals have upheld the validity of that appointment.  Because the
regulations promulgated by the Attorney General empower respondent to
proceed with the same investigative and prosecutorial activities that
are authorized under the Ethics Act, it is our view that there is no
need for this Court to reach the separate issue of the
constitutionality of the Ethics Act in this case.
                               STATEMENT
   1. On December 4, 1986, the Attorney General applied for the
appointment of an Independent Counsel under the Ethics Act, 28 U.S.C.
591(c), to investigate potential criminal violations involved in the
transfer of arms to Iran and the disposition of the proceeds from that
transfer.  In accordance with that application, a Special Division of
the United States Court of Appeals for the District of Columbia
Circuit (see 28 U.S.C. 49) appointed respondent as Independent Counsel
under the Ethics Act on December 19, 1986, to investigate the matter
(Pet. App. 3a).
   On February 24, 1987, petitioner filed a civil action in federal
district court seeking to enjoin the investigation.  Petitioner
alleged that the independent counsel provisions of the Ethics Act
violate the separation of powers doctrine by infringing the
prerogatives of the Executive Branch.  In response, on March 5, 1987,
the Attorney General by regulation created within the Department of
Justice the "Office of Independent Counsel:  Iran/Contra." That office
was given the authority to investigate the same activities that are
subject to the investigation proceeding under the Ethics Act.  The
Attorney General appointed respondent to the position of Independent
Counsel under the regulations.  Pet. App. 4a-6a.
   The Attorney General exercised that authority in part because, as
he explained, "(t)he President has made clear that he supports a full
investigation into the events that the Independent Counsel has been
charged with investigating under that Act * * * (and, in) light of the
President's views, I have found it advisable to assure the courts,
Congress, and the American people that this investigation will proceed
in a clearly authorized and constitutionally valid form regardless of
the eventual outcome of the North litigation." Pet. App. 76a.
   The Attorney General emphasized that this separate appointment was
in no way "meant to question the independence or authority of the
Independent Counsel appointed under the Act or to interfere in any way
with his activities." To the contrary, the appointment was "intended
to make certain that the necessary investigation and appropriate legal
proceedings can proceed in a timely manner." Pet. App. 76a-77a.  To
meet that objective, the Attorney General explained that he was
issuing the new regulations under the authority vested in him pursuant
to "28 U.S.C. 509, 510, and 515, and 5 U.S.C. 301, and pursuant to the
President's general responsibility to enforce the laws of the United
States pursuant to Article II of the United States Constitution." Pet.
App. 76a, 77a.
   The regulations vest the Independent Counsel, with respect to all
matters in his prosecutorial jurisdiction, with the "full power and
independent authority to exercise all investigative and prosecutorial
functions" of the Department of Justice and the Attorney General, with
the exception of matters requiring the Attorney General's personal
attention under 18 U.S.C. (& Supp. III) 2516. Pet. App. 78a.  The
Independent Counsel's powers include, among other activities,
conducting grand jury proceedings, applying for grants of immunity,
signing indictments, initiating prosecutions, and conducting all
necessary civil and criminal litigations.  Id. at 78a-79a.
   In addition, the Attorney General's regulations empower the
Independent Counsel "to appoint, fix the compensation, and assign the
duties, of such employees as the Independent Counsel deems necessary"
(Pet. App. 80a).  The regulations specify that the Independent Counsel
shall, "except where not possible, comply with the written or other
established policies of the Department of Justice respecting
enforcement of the criminal laws" (id. at 81a).  The Attorney
General's regulations also provided that, as under the Ethics Act, the
Independent Counsel can be removed on circumscribed grounds only.
With respect to the Iran/Contra investigation, the regulations
authorize respondent to investigate the same matters that were
assigned to him under the Ethics Act.  Id. at 82a-83a.
   2. Respondent accepted the appointment by the Attorney General on
March 5, 1987.  He appointed associates to assist him, and since then
has been actively conducting an investigation of the "Iran/Contra"
matter.  All of the associates he appointed to assist him in
performing his duties under the regulations were individuals he had
appointed to assist him in performing his duties under the Ethics Act.
 Each of the associates signed an oath of office at the time he began
assisting respondent with his duties under the Act.  The associates
did not sign separate oaths of office in connection with their duties
under the regulations (Pet. App. 48a).
   Subsequent to respondent's appointment by the Attorney General, the
grand jury investigating the Iran/Contra matter issued a subpoena to
petitioner.  Petitioner refused to comply with the subpoena and was
accordingly held in contempt by the federal district court that was
supervising the grand jury.  Pet. App. 7a.  On appeal of the contempt
order, the court of appeals ruled that petitioner's challenge to the
validity of respondent's status as prosecutor was ripe.  In re Sealed
Case, 827 F.2d 776 (D.C. Cir. 1987).  It remanded the matter to the
district court for a determination of whether respondent's parallel
appointment by the Attorney General made it unnecessary to reach the
constitutional challenges petitioner wished to raise against
respondent's status under the Ethics Act (Pet. App. 66a-75a).
   3. On remand, the district court ruled that the Attorney General's
parallel appointment of respondent is valid, and that appropriate
authority has been vested in respondent and his assistants (Pet. App.
42a-51a).  The district court found that the Attorney General has the
authority to create, by regulation, independent counsels and to grant
them the degree of independence established under the regulations (id.
at 45a-46a).  The court also ruled that respondent's appointment by
the Attorney General is to a position within the Department of
Justice, and that the appointment is consistent with the terms of the
Ethics Act (id. at 47a-48a).  Finally, the district court determined
that the authority to conduct criminal proceedings has been properly
vested in respondent's assistants.  In light of the "unique set of
circumstances" posed here, the court found that the affidavits that
the assistants had signed accepting appointment under the Ethics Act
were sufficient to meet any technical appointment requirements under
the regulations.  Id. at 47a-49a.
   4. On the second appeal, the court of appeals affirmed the district
court's holding (Pet. App. 27a).  The court of appeals upheld the
statutory authority of the Attorney General to delegate authority as
he did here, and it confirmed that respondent's office under the
regulations is part of the Department of Justice (id. at 11a-12a).
The court also ruled (id. at 12a-14a) that the Attorney General's
action was constitutionally valid.  Rejecting petitioner's challenges
to the appointment, the court held that the regulations properly
created respondent's position as an "inferior Officer" of the United
States, since the regulations (and respondent's authority under them)
can, "(s)ubject to generally applicable procedural requirements," be
rescinded by the Attorney General "at any time." Id. at 13a.
   The court also rejected petitioner's argument that respondent's
assistants had not properly been appointed to their offices.  It
agreed with the district court that, requiring the assistants to take
oaths and complete forms essentially duplicating those executed under
the Ethics Act would serve no purpose.  Pet. App. 15a-17a.  The court
of appeals also found that respondent and his assistants had been
"specifically directed" by the Attorney General to perform the tasks
assigned to them, as is required by 28 U.S.C. 515(a) (Pet. App.
17a-19a).
   Finally, the court of appeals found that no aspect of respondent's
tenure under the Attorney General's regulations and under the Ethics
Act required the court to reach the constitutional challenges made by
petitioner against the Act (Pet. App. 20a-27a).  The court concluded
that the fact of potential judicial review of any removal under the
Ethics Act does not have a sufficient current impact on respondent to
justify adjudication of the constitutional issues petitioner wishes to
raise (id. at 22a-23a).  /3/
                               ARGUMENT
   The nub of the controversy in this case is whether the courts
should address in this litigation the constitutional challenges that
petitioner wishes to make against respondent's authority under the
Ethics Act to investigate and, if appropriate, prosecute him.  The
Attorney General appointed respondent to a parallel position within
the Department of Justice in order to make it possible for the
Iran/Contra investigation to proceed without the threat of disruption
by a successful constitutional challenge to the Ethics Act.  /4/ In
light of the Attorney General's appointment, respondent currently has
two independent grants of authority to investigate petitioner, the
Ethics Act and the Attorney General's regulations.  Only if the
appointment under the regulations is invalid would it be necessary to
consider the substantial constitutional questions posed by the Ethics
Act.  We submit that the regulations and respondent's appointment are
valid and that it is therefore both proper and advisable for the Court
to decline petitioner's invitation to address the difficult
constitutional questions raised by the Ethics Act.  See Jean v.
Nelson, 472 U.S. 846, 854 (1985);  Ashwander v. TVA, 297 U.S. 288,
346-348 (1936)(Brandeis, J., concurring).
   1. Petitioner first challenges the constitutionality of the
Attorney General's regulations (Pet. 9-16).  He bases his claim on the
assumption that a decision by the Attorney General to rescind the
independent counsel regulations would be reviewable on the merits in
court.  If that is so, petitioner claims, the Independent Counsel is
sufficiently free from the Attorney General's control that he cannot
be considered an "inferior Officer" within the meaning of the
Constitution.  In other words, petitioner's claim is that the Attorney
General has by error created an office that is independent to such an
extent that its occupant must be appointed by the President with the
approval of the Senate.  See U.S. Const. Art. II, Section 2, C1. 2.
   Contrary to the premise of petitioner's argument, rescission of the
Attorney General's regulations creating the "Office of Independent
Counsel:  Iran/Contra" would not be reviewable under the
Administrative Procedure Act, because the matter has been committed to
the Attorney General's discretion by law.  See 5 U.S.C. 701(a)(2).
First, as Judge Williams pointed out in his concurring opinion below
(Pet. App. 29a), prosecution decisions made by the Executive are
"presumptively unreviewable" (Heckler v. Chaney, 470 U.S. 821, 832
(1985)), and are committed to the Executive's discretion, with only
the most modest constraints.  Wayte v. United States, 470 U.S. 598,
607 (1985).  Second, Congress has accorded the Attorney General the
authority to delegate his responsibilities, to appoint assistants, to
appoint persons to assist the United States attorneys, and to appoint
persons to conduct investigations of criminal and other matters.  See
28 U.S.C. (& Supp. III) 510, 515-519, 533, and 543.  Congress has not
imposed any substantive restrictions on the Attorney General's
authority to assign such duties to others and to terminate those
assignments;  accordingly, there is no "law to apply" that would
provide the courts with a basis for reviewing the Attorney General's
decisions on such matters, including his decision to make a delegation
by regulation or to revoke the delegation by rescinding the
regulation.  See Chaney, 470 U.S. at 833-834.  /5/
   2. Petitioner next argues (Pet. 17-23) that the technical
requirements for authorizing attorneys to conduct federal
investigations and prosecutions were not met in this case.
   The district court and the court of appeals determined that
respondent's assistants were not required to execute essentially
duplicative oaths and forms in order to carry out the same functions
within the Justice Department under the Attorney General's regulations
that they were already performing under the Ethics Act (Pet. App.
15a-20a, 48a-49a).  The reasoning used by both courts is correct and
is in no way in conflict with the rulings in the two appellate cases
cited by petitioner (Pet. 22), which upheld delegations of authority
to federal prosecutors.  United States v. Prueitt, 540 F.2d 995,
1000-1001 (9th Cir. 1976), cert. denied, 429 U.S. 1063 (1977);  In re
Persico 522 F.2d 41, 56-67 (2d Cir. 1975).  The issue in those cases
was whether particular attorneys had been properly appointed and
"specifically directed" (28 U.S.C. 515(a)) to perform particular
tasks.  The courts found that the attorneys had been properly
designated and directed.
   Nothing in the two court of appeals decisions on which petitioner
relies suggests that respondent's assistants cannot serve in the
"Office of Independent Counsel:  Iran/Contra" without further
direction from the Attorney General or without executing a new oath
following respondent's appointment to that Office.  The court of
appeals properly held that the specific direction provided to the
Independent Counsel under the Attorney General's regulations was
sufficient to satisfy the requirement of 28 U.S.C. 515(a) that the
attorneys assisting the Independent Counsel be "specifically directed"
to perform certain Executive Branch functions.  Pet. App. 17a-19a.
That is particularly true in view of the fact that the purpose of the
"specifically directed" provision was not to protect criminal
defendants and prospective defendants, but to protect the government
against the risk that specially appointed attorneys would engage in
activities beyond the scope of their intended commissions.  For that
reason, the provision has traditionally been given a liberal
construction in favor of the validity of the executive action at
issue.  See United States v. Balistrieri, 779 F.2d 1191, 1207-1210
(7th Cir. 1985), cert. denied, 475 U.S. 1095 (1986);  United States v.
Prueitt, 540 F.2d at 1002-1003;  In re Persico, 522 F.2d at 58-63;
Wall v. United States, 384 F.2d 758, 763 (10th Cir. 1967);  United
States v. Denton, 307 F.2d 336, 338 (6th Cir.), cert. denied, 371 U.S.
923 (1962);  Shushan v. United States, 117 F.2d 110 (5th Cir.), cert.
denied, 313 U.S. 574 (1941).
   Beyond that, the regulations authorize the Independent Counsel to
appoint and assign the duties of such employees as he deems necessary
to perform his designated functions.  28 C.F.R. 600.1(c).  The
Attorney General is authorized by statute to delegate his functions to
others within the Department of Justice (28 U.S.C. 510) including his
responsibility to appoint and "specifically direct()" the activities
of special attorneys.  The Attorney General has previously delegated
those responsibilities with respect to special attorneys performing
services within other components of the Department.  See 28 C.F.R.
0.13, 0.15(b)(1)(ii).  The assignment to the Independent Counsel of
the responsibility for appointing and assigning attorneys to assist
him constitutes a permissible delegation of the Attorney General's
responsibility under Section 515(a), and thus satisfies the
requirement that special attorneys be "specifically directed by the
Attorney General" to perform the tasks assigned to them.
   The court of appeals was also correct in concluding that the
failure of respondent's assistants to take a new oath of office after
respondent's appointment by the Attorney General does not render
unlawful their service under the authority of the Attorney General's
regulations.  Because the Independent Counsel's responsibilities under
the Ethics Act and under the Attorney General's regulations are
identical, the oaths of office taken by respondent's assistants
pursuant to their appointments under the Ethics Act are substantively
identical to the oaths they would have taken under the Attorney
General's regulations.  Under those circumstances, where the
responsibilities of the two offices are entirely congruent, the court
of appeals properly declined to invalidate the appointment of
respondent's assistants under the Attorney General's regulations on
the ground that they failed to execute a duplicate oath of office in
connection with their duties under the regulations.
   3. Finally, petitioner contends (Pet. 23-27) that the court of
appeals erred by not addressing his attacks on the validity of the
Ethics Act, because of the allegedly different tenure provisions for
respondent under the regulations and under the Ethics Act.
   The tenure provisions in the two schemes are essentially the same;
the difference between them arises from the fact that the Attorney
General can rescind the regulation, thereby eliminating the regulatory
tenure provision, while under the Ethics Act the Attorney General's
decision to remove an independent counsel is subject to review by the
Special Division of the court of appeals.  28 U.S.C. (& Supp. III)
596(a)(3).  Petitioner argues that in light of this distinction, the
court of appeals was wrong in ruling that petitioner's constitutional
challenges are not ripe, and that the court's ruling is at odds with
this Court's decision in Bowsher v. Synar, No. 85-1377 (July 7, 1986).
   This case is not like Bowsher.  The question there was whether the
Comptroller General, who is removable by Congress, can carry out
Executive Branch functions.  The Court held that an officer's
removability by one Branch prevents the officer from exercising the
functions of another Branch, because the fact of removability
"dictate(s) that he will be subservient to" the Branch with the
removal power (slip op. 14).  For that reason, the Court found that
the issue of removability was critical to the question of the
constitutionality of the statute at issue in the case, even though no
steps had been taken to remove the Comptroller General.
   Unlike the situation with the statute at issue in Bowsher, the
hypothetical removability of the Independent Counsel under the
Attorney General's regulations does not affect the constitutionality
of those regulations and the Independent Counsel's appointment under
them.  The person who would remove the Independent Counsel -- either
under the terms of the regulations or by rescinding them -- would be
the Attorney General, a member of the same Branch as the Independent
Counsel.  The constitutional flaw that was present in Bowsher -- the
fact that an officer performing functions for one Branch was removable
by representatives of another Branch -- is therefore not present in
the case of the Attorney General's regulations.  Because the Attorney
General's regulations provide a valid basis for the Independent
Counsel's exercise of prosecutorial and investigative authority -- at
least unless and until the Independent Counsel is removed by the
Attorney General -- the Ethics Act is simply an alternative basis for
the Independent Counsel's exercise of authority.
   Petitioner's argument appears to be that in spite of the Attorney
General's parallel appointment -- and even assuming that the parallel
appointment is valid -- the existence of respondent's appointment
under the Ethics Act is sufficient to poison respondent's status by
making him and his assistants beholden to the Judicial Branch.  For
that reason, petitioner contends, it was improper for the court of
appeals to decline to reach the question of the constitutionality of
the Ethics Act.
   The answer to this contention is that the Attorney General's
appointment renders the Ethics Act appointment superfluous and thus
makes the question of the constitutionality of the Act unnecessary to
the resolution of this case.  Even if the court of appeals had
addressed the issue of the constitutionality of the Act, the outcome
of the case would have been the same:  because of respondent's
separate appointment under the Attorney General's regulations,
petitioner would still be compelled to comply with respondent's
subpoena and would still be properly subject to contempt for failing
to do so.  The only consequence of requiring the court of appeals to
resolve the difficult constitutional questions presented by the Ethics
Act would be to cause a substantial delay in the disposition of the
subpoena controversy.
   The fallacy in petitioner's argument becomes clear by the use of a
simple example.  Suppose the Ethics Act permitted the court to appoint
a sitting United States Attorney as an independent counsel.  Suppose
futher that the court appointed a United States Attorney as the
independent counsel to investigate a particular matter, which the
United States Attorney was already investigating in his capacity as a
Department of Justice official.  Would the Ethics Act appointment
render the United States Attorney "subservient to" the Judicial
Branch, so that a constitutional flaw in the Ethics Act would
invalidate the performance of his duties as a United States Attorney?
We think not.  The United States Attorney would be entitled to
continue his investigation because of his status as an Executive
Branch official, regardless of any constitutional infirmity in the
Ethics Act.  And because the validity of the investigation would not
be affected by the resolution of the constitutional issue, there would
be no reason for the courts to reach out to decide that issue if it
were raised by a target of the investigation.
   The same analysis applies to the Independent Counsel, who has been
validly authorized to conduct an investigation within the Department
of Justice, regardless of the constitutionality of his appointment
under the Ethics Act.  It is therefore unnecessary and inappropriate
to address the constitutionality of the provisions of the Act in this
case.
                              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
   ROBERT E. KOPP
   DOUGLAS LETTER
      Attorneys
   DECEMBER 1987
   /1/ Since the time of respondent's appointment, the independent
counsel provisions of the Ethics Act have been replaced by new,
substantially similar legislation.  See Independent Counsel
Reauthorization Act of 1987, Pub. L. No. 100-191.  The prior version
of the statute continues to govern this case.  See 28 U.S.C. 598.
   /2/ The Executive Branch has recently argued as amicus curiae in In
re Sealed Case, No. 87-5261 (D.C. Cir. argued Sept. 16, 1987), that
these provisions are unconstitutional.
   /3/ In partial dissent, Judge Williams took the view that because
the Attorney General could rescind the regulations at any time,
respondent's tenure under the regulations is different from his tenure
under the Ethics Act (Pet. App. 28a- 31a).  Therefore, Judge Williams
concluded, the court of appeals was required to reach the merits of
petitioner's constitutional challenges to the Ethics Act (id. at
32a-41a).
   /4/ There is a case currently pending in the court of appeals that
raises the question of the constitutionality of the Ethics Act.  In re
Sealed Case, No. 87-5261 (D.C. Cir. argued Sept. 16, 1987).  The
constitutional issue is before the court in that case because the
Independent Counsel conducting that investigation declined to accept
the Attorney General's offer of a parallel appointment, an offer that
the Justice Department has made to all Independent Counsels now
serving under the authority of the Ethics Act.
   /5/ If rescission of the regulation is reviewable, that would
suggest that its promulgation was also reviewable.  See Motor Vehicle
Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463
U.S. 29, 41-42 (1983).  Yet it is clear that there is no basis to
review the issuance of such a regulation.
   We note in addition that this Court has upheld the exercise of
similarly independent investigative authority by an officer created by
the Attorney General's regulation, without in any way suggesting that
the Attorney General's delegation was unconstitutional.  United States
v. Nixon, 418 U.S. 683 (1974).