Court Sidesteps Ruling in North Dispute on Independent Counsel

The U.S. Court of Appeals Monday sidestepped a ruling on Oliver L. North’s constitutional challenge to the authority of independent counsel Lawrence E. Walsh, sending the case back to federal District Court to develop more evidence.

The appellate judges said in a brief order that the dispute was not ready for their review. They added that they may not have to decide the matter if a backup appointment given to Walsh by Atty. Gen. Edwin Meese III earlier this year is found to be valid by a lower-court judge.

North’s lawyers argue that the 1978 Ethics in Government Act, under which Walsh was appointed by three federal judges, is invalid because only the executive branch has the right to prosecute. Walsh has denied this claim, but to demonstrate the Administration’s support, Meese provided him a parallel appointment as special counsel.

The three judges, who heard more than two hours of arguments on the dispute last week, said that U.S. District Judge Aubrey E. Robinson Jr. had wrongly denied relief to North “without reaching the merits” of his claim, which is the center of his effort to block Walsh’s inquiry into his role in selling U.S. arms to Iran and diverting proceeds to the Nicaraguan rebels.

The appellate court said that a federal district judge should take testimony on two points: whether Meese “had legal authority to delegate” new powers to Walsh and whether the appellate court should consider North’s challenge if Meese’s appointment of Walsh is valid.

“I shall welcome the appropriate prompt disposition of any question as to the validity of my appointment,” Walsh said of the appellate court action. In the meantime, he added, “we shall proceed with our investigation.”

Attorneys for North, a Marine lieutenant colonel who was fired from the National Security Council last November as the Iran- contra affair began to unfold, declined immediate comment.

Walsh, in legal briefs filed with the appellate court, has strongly hinted that he is seeking to indict North soon on charges of conspiring to defraud the government.