Picking On the Prosecutors

By David Beckwith/Washington

Getting to the bottom of governmental wrongdoing is something of a cottage industry in Washington nowadays. No fewer than four independent counsel -- formerly known as special prosecutors -- are conducting probes of alleged misdeeds by current and former Administration officials, most notably the Iranscam investigation led by Lawrence E. Walsh. But last week a pair of challenges cast doubt on the legal validity of those efforts.

The first came from Lieut. Colonel Oliver North, whose attorneys filed suit in U.S. District Court to stop Walsh's probe. Their argument: the broad mandate given to the court-appointed special prosecutor is a violation of the constitutional doctrine of separation of powers. A day later, attorneys for former Reagan Aide Michael Deaver, under investigation for his lobbying activities after his departure from the White House in May 1985, used an almost identical ploy to halt indictments being sought against him by Independent Counsel Whitney North Seymour Jr. The challenges are more than just delaying tactics; in the words of one Justice Department attorney, they could mark the "death knell for the special-prosecutor statute."

Though North's suit has not interrupted Walsh's probe, Deaver won at least a temporary victory. Seymour was ready to ask a grand jury to indict Deaver on four counts of perjury stemming from his testimony before a House subcommittee and grand jury last year. As a courtesy, Seymour telephoned Deaver's attorneys on Tuesday to inform them of the impending indictments. But Deaver's lawyers, led by former Nixon Attorney Herbert ("Jack") Miller, beat Seymour to the courthouse the following morning. After hearing their arguments, U.S. District Judge Thomas Penfield Jackson issued an order blocking any indictments until the constitutional issues have been examined at a hearing in early March.

By passing the Ethics in Government Act of 1978, Congress sought to avoid a replay of 1973's Saturday Night Massacre, in which President Nixon had Watergate Prosecutor Archibald Cox fired. The act calls for the prosecutor to be appointed by a panel of three federal judges and not to be subject to presidential approval. But some legal observers argue that the provision has usurped powers that properly reside in the Executive Branch. "The special counsel is a distortion of the Constitution," says Washington Lawyer Ray Randolph. Philip Lacovara, counsel to the Watergate special prosecutor, agrees, partly because the position has "too much power." The Supreme Court may be sympathetic to such arguments. It has recently been a strong upholder of the separation-of-powers doctrine, in decisions like last year's ruling striking down the provision of the Gramm-Rudman-Hollings budget-balancing law that gave enforcement powers to the General Accounting Office.

Yet upending the independent counsel will not be easy, for both legal and political reasons. "There's a need for an independent conflict-of-interest investigation in the Executive Branch," says University of Texas Law Professor Harold Bruff. "The courts will recognize that need." The Administration, meanwhile, is in an awkward position. Attorney General Edwin Meese and other Reagan Justice Department officials have publicly opposed the special prosecutor, yet they may find it difficult to support North and Deaver without opening themselves to charges of fostering a cover-up. Says one Justice Department official: "In this political climate, I don't think we can side with them as much as we want to."

At the very least, the legal uncertainty may encourage some witnesses to snub investigators in the Iranscam probe and other inquiries (among them, the investigation of former Reagan Aide Lyn Nofziger on conflict-of-interest charges). The threat is serious enough that Justice Department officials and congressional leaders are talking of a possible compromise: President Reagan could reappoint the same independent counsel himself, thus circumventing the constitutional problem. Says Stanley Brand, former counsel to the House of Representatives: "Unless they work this out, we could be headed for a crisis of confidence in the administration of justice."