WASHINGTON — The independent counsel probing the Iran- contra affair works within the Justice Department and is thus subject to the jurisdiction of Atty. Gen. Edwin Meese III, the department declared Monday, provoking a sharp disagreement with independent counsel Lawrence E. Walsh.
However, both the Justice Department and Walsh told a federal judge that former White House aide Oliver L. North's legal challenge to Walsh's investigation was without merit and should be dismissed.
Chief U.S. District Judge Aubrey E. Robinson received the legal briefs in preparation for a hearing Wednesday on the constitutionality of Walsh's appointment under the 1978 Ethics in Government Act--one of the key legal issues pending in the Iran-contra investigations.
Walsh Remains Adamant
Walsh, in defending his role as autonomous, is adamant about preventing the possibility or appearance of any Administration interference in his investigation. However, court acceptance of the department's claim to jurisdiction could, in one respect, be a boon to him because it would skirt the difficult constitutional question at the heart of North's challenge.
Walsh was originally appointed to conduct a criminal investigation of the affair by a panel of three appeals court judges, in accordance with the ethics act. North then charged that the ethics act appointment abrogated the executive branch's exclusive right under the Constitution to conduct prosecutions.
Walsh accepted a "backup" Justice Department appointment from Meese last March in an attempt to assure the constitutionality of his efforts. But he said in his court filing Monday that he is totally independent of the Justice Department and that his office exists "as a separate entity outside the department."
North's initial challenge was rejected as premature, but the fired National Security Council aide renewed the action last month. An appellate court instructed Robinson to hold full hearings on the challenge.
The Justice Department, in its brief, elaborated on a statement given to Congress last month by Assistant Atty. Gen. John Bolton. At that time, Bolton said that theoretically President Reagan, acting through Meese, could fire Walsh if he became displeased with Walsh's conduct.
But the department added that Meese, in making the backup appointment, "granted the prosecutor wide discretion and independence" and that Reagan is personally committed to a thorough investigation.
Furthermore, "any misunderstanding by Mr. Walsh of the nature of his office does not invalidate his appointment (by Meese), and he remains free to resign or continue in office after the matter is clarified (by the courts)," the department said.
"The creation of the office of Independent Counsel--Iran/contra in the Department of Justice is well within the attorney general's authority and does not conflict with any portion of the ethics act," Justice Department attorneys said.
Walsh, in his filing Monday, agreed with a statement by the appellate court that, if Robinson upholds the validity of Meese's backup appointment, there would be no need to consider whether the ethics act is constitutional. Legislation is pending in Congress to extend, and perhaps clarify parts of, the ethics law, which is to expire next January.