Justices Reject North Challenge to Prosecutor

The Supreme Court Tuesday refused to hear a constitutional challenge to the independent counsel’s investigation of the Iran-Contra scandal, clearing the way for counsel Lawrence E. Walsh to pursue a criminal indictment against Marine Lt. Col. Oliver L. North.

The high court action lets stand a contempt of court citation against North for refusing to turn over information requested by a grand jury in Washington.

The attorneys for North, the pivotal figure in the secret plan to sell U.S. arms to Iran and use the profits to arm the rebels in Nicara-gua, have conducted an aggressive defense at every stage of the proceedings against him. When a grand jury asked North to submit a handwriting sample last summer, his attorneys responded with an attack on Walsh’s authority to conduct the investigation.

Under the Ethics in Government Act, Walsh was selected by a three-judge federal panel in December, 1986, to investigate the Iran-Contra affair and to prosecute any crimes committed by officials working for the President. But North’s attorneys contended that only the President may select federal prosecutors.

U.S. District Judge Aubrey E. Robinson Jr. rejected the attack and charged North with contempt for refusing to obey the grand jury order.

Opinion by Ginsburg

North’s lawyers then went before the U.S. Court of Appeals for the District of Columbia, but Judge Douglas H. Ginsburg--later to be nominated unsuccessfully to the Supreme Court--issued an opinion saying that North may raise the constitutional challenge only after a trial, not before one. On Tuesday, the Supreme Court dismissed North’s appeal of that ruling (North vs. Walsh, 87-869).

The high court action leaves North with a choice of supplying the subpoenaed information, including a handwriting sample, or going to jail.

As they have throughout the legal fight, North’s attorneys refused to comment. “We are not saying anything about any aspect of this case,” said Terrence O’Donnell, who, along with attorney Brendan V. Sullivan Jr., filed the Supreme Court appeal.

Prosecutor’s Office Pleased

James Wieghart, a spokesman for Walsh’s office, said: “We are pleased that any question as to the authority of this office to carry on its investigation of the Iran-Contra matter has now been laid to rest by the courts.”

Although the immediate challenge to Walsh’s investigation has been dismissed, the question of the constitutionality of the independent counsel is likely to be back before the Supreme Court again.

Lawyers for former White House aide Michael K. Deaver raised the issue last summer in seeking to head off his perjury trial, but the high court dismissed the appeal as premature. Since then, Deaver has been convicted, and his attorneys plan to file several appeals.

Former Justice Department official Theodore Olson, who is charged with lying to Congress during its investigation of the Environmental Protection Agency, also has contested the constitutional authority of independent counsel Alexia Morrison. Olson’s case is now under consideration by the appeals court in Washington.

The Constitution gives the President the authority to see to it that the laws are “faithfully executed” and, by tradition, the prosecution of all federal crimes has been left in the hands of the executive branch of government. The lawyers for North, Deaver and Olson say that it is unconstitutional on its face to have a prosecutor who is “independent” of the President and the attorney general.

Backup Appointment

But North’s case may have been the weakest of the three challenges. To head off a constitutional attack against Walsh, Atty. Gen. Edwin Meese III gave him a “parallel,” or backup, appointment as a special prosecutor last March.

Undeterred, North’s attorneys told the high court that Walsh was still operating illegally because the attorney general had no right to allow “a team of attorneys recruited from the private sector to conduct a wide-ranging criminal investigation involving this nation’s most sensitive affairs.”

Walsh has been pursuing charges of obstruction of justice and fraudulent diversion of federal funds against North. In November, 1986, after the scandal became known, North was fired from the President’s national security staff and has been working at Marine Corps headquarters since.

Sullivan, the feisty lawyer who sat at North’s side last summer as he testified before Congress’ investigating committees, has urged the White House to pardon North for any crimes he may have committed while working for the President.

Indictments Predicted

Walsh has said little about the progress of his investigation, but sources close to the probe have predicted that it will result in indictments against North.

In other action, the court agreed to decide whether Colorado may forbid the use of paid agents to gather signatures to put initiatives on the state ballot. The state says that the initiative process is intended to put political power in the hands of the people and would be thwarted if money can buy access to the ballot. But a federal appeals court ruled that a state law prohibiting the use of paid agents is a violation of the right to free speech (Meyer vs. Grant, 87-920).

Staff writer Ronald J. Ostrow contributed to this story.