WASHINGTON — A federal judge, declaring that "the nation demands an expeditious and complete disclosure of our government's involvement in the Iran- contra affair," Thursday threw out Lt. Col. Oliver L. North's constitutional attack on the independent counsel investigating the case.
At the same time, however, the U.S. Circuit Court of Appeals here signaled that it might try to settle the constitutional issue in question by intervening in a similar challenge to another independent counsel, Whitney North Seymour Jr.
The appellate court ordered Seymour to delay five days his plan to seek a perjury indictment of former White House aide Michael K. Deaver for improper lobbying activities so the court can consider whether to rule on the constitutionality of independent counsels.
Challenge Not 'Ripe'
In the North ruling, U.S. District Judge Barrington L. Parker held that North's challenge was not "ripe" for decision. Noting that there has yet been no indictment or prosecution of North or any other person in the Iran case, Parker said: "Col. North like any other potential criminal defendant can raise his objections by appropriate motions if and when an indictment is entered."
These were the same grounds that U.S. District Judge Thomas Penfield Jackson cited Wednesday in dismissing Deaver's attempt to head off his indictment. It was Deaver's immediate appeal of that ruling that led to the appellate court's response that it may consider the overriding issue.
Both Jackson and Parker said they believe higher courts will uphold the constitutionality of the Ethics in Government Act, the post-Watergate reform measure that provided for court-appointment of independent counsels to conduct investigations of certain Administration officials.
Separation of Powers
North and Deaver had attacked the law as a violation of the constitutional principle of separation of powers. They contended that special court panels may not legally appoint such counsels because the Constitution vests the role of prosecutor solely in the executive branch. "Although a careful look at the constitutionality of the act must await a time when plaintiff has alleged a concrete injury," Parker said in the North case, independent counsel Lawrence E. Walsh "has offered good reasons to believe that the act will be upheld."
Judge Parker said that North's "rigid vision of the separation of powers doctrine is not supported by our constitutional structure of government. The Constitution explicitly intermingles the traditional functions of government to guard against abuses of power and conflicts of interest."
Parker said North "does not cite a single case in which an ongoing criminal investigation was halted to support his claim for extraordinary relief."
The judge said Walsh "is pursuing the investigation energetically and responsibly" and noted that the Reagan Administration has supported him, going to the extent of giving Walsh a backup executive-branch appointment as independent counsel as "insurance" in case the court challenge succeeds.
In his ruling, he also rejected North's challenge to the backup appointment, which was made by Atty. Gen. Edwin Meese III.
Parker pointed out that the ethics law expires next Jan. 2, and that Congress is expected to consider extending and possibly amending it.
Challenge by North Seen
The ruling was hailed by the Justice Department. Spokeswoman Amelia L. Brown said it "has upheld the importance of this investigation."
North's lawyers refused to comment on whether they would appeal Parker's decision but a source close to the case said they are likely to follow the course of Deaver's lawyers and turn to the court of appeals today.
Deaver's lawyers took their case to the Court of Appeals on Thursday, a day after Judge Jackson, in rejecting Deaver's challenge, had left Seymour free to seek a four-count perjury indictment against President Reagan's former confidant.
A three-judge appellate panel stayed Seymour's hand and told both sides to submit written arguments by Monday on whether the possible indictment of Deaver posed a serious enough injury to warrant the panel's review and whether the panel in other respects had proper jurisdiction.
Since last May, Seymour has been investigating allegations that Deaver ran afoul of federal conflict-of-interest laws in lobbying former White House colleagues on behalf of private clients soon after he resigned as deputy White House chief of staff in May, 1985.