Special Counsel Named Illegally, North Charges

Lt. Col. Oliver L. North urged a federal court Tuesday to bar independent counsel Lawrence E. Walsh’s investigation of the Iran- contra scandal, contending that Walsh’s appointment violated separation of powers and several other constitutional provisions.

The constitutional attack, which Walsh has said he expected, is only the second challenge to the Ethics in Government Act of 1978 and came as North’s former secretary, Fawn Hall, began providing Walsh’s investigators with evidence against her former boss. The previous challenge was dismissed before it was tested.

No Delay Expected

The lawsuit is not expected to slow Walsh’s investigation.

Brendan V. Sullivan Jr., North’s lawyer, asserted in his petition that “the function of prosecuting offenses against the United States belongs exclusively to the executive” branch of government.

“Nonetheless, anointed by Congress, a special court has unconstitutionally granted Mr. Walsh the power to exercise all the authority and discretion of a prosecutor to decide whom to investigate, whom to subpoena, whom to prosecute, whom to let go free, what charges to bring, what arguments to make and how to resolve the countless policy choices that go into each of these decisions,” Sullivan said.

In a 70-page legal memorandum, Sullivan pointedly cited recent critical comments about the law made by a key legal adviser to Atty. Gen. Edwin Meese III.

The adviser, Assistant Atty. Gen. Charles J. Cooper, said in a legal publication last month that, if the constitutionality of the law was “appropriately” challenged, the Justice Department would join a lawsuit seeking to overturn it.

Meese a Defendant

Patrick S. Korten, a spokesman for Cooper and Meese, said that they would not comment on whether North’s challenge was the “appropriate” case until they had the opportunity to study the suit. Meese is named as a defendant in the suit.

Walsh said that the challenged statute “has received extensive and careful study, and we are satisfied of its constitutionality. We shall, of course, oppose the action.”

The suit, which asks that Walsh be barred from exercising all authority conferred on him by the special court panel and that Meese be ordered not to assist him, was referred to U.S. District Judge Barrington D. Parker.

No ‘Time Frame’

An aide to Parker, a veteran judge who has handled several high-profile cases, said that he could give no “time frame” for any action.

The provision for an independent counsel, formerly called a special prosecutor, was enacted in the wake of the Watergate scandal and has been opposed by the Justice Department under former President Jimmy Carter and President Reagan.

Under the provision, the attorney general, who serves in the executive branch, applies to a special federal court for appointment of an independent counsel when he finds information that certain Administration officials may have violated a federal criminal law other than a petty offense.

Justice Department critics contend that the law presumes the department cannot objectively investigate high Administration officials.

Mandate Broadened

On Dec. 19, the special three-judge court named Walsh to investigate whether North, other government officials or other individuals acting in concert with North violated any federal law in selling arms to Iran or in diverting to the Nicaraguan rebels the proceeds from any such sale. The mandate was broader than Meese had sought.

Although Meese had asked for an investigation limited to arms shipments to Iran and the transfer of proceeds since January, 1985, “the court unilaterally decided to engage Mr. Walsh as well to investigate all executive branch support for the contras in Nicaragua dating back to 1984,” the lawsuit said.

North’s challenge said that, although the Constitution grants the President broad leeway in conducting foreign affairs, Walsh and his staff “are also purportedly free to decide whether certain foreign policy activities of the President constitute an offense against the United States.”

“They are equally at liberty to determine whether a particular prosecution will damage this nation’s foreign affairs and, if so, whether the toll it takes is worthwhile--all without any consultation with the State Department,” the lawsuit said.

The previous challenge to the independent counsel’s constitutionality was filed in 1980 by attorneys for Tim Kraft, a former campaign aide for President Carter. It was dismissed when a special prosecutor dropped his investigation of Kraft for cocaine use.

Five independent counsels are conducting separate investigations of current or former Administration officials under the ethics law. Since the law’s passage seven years ago, no indictments have been returned.

Hall, North’s former secretary, appeared briefly for pictures on the stairs of her lawyer’s office but refused to discuss the evidence she is providing in the investigation. Sources have said that Hall, who has received immunity from prosecution, has told investigators that she and North altered, destroyed and removed National Security Council documents relating to the Iran operation.