WASHINGTON — The Justice Department on Monday attacked the constitutionality of the law providing for independent counsel investigations, in a case that seems certain to result in a long-awaited court ruling on the politically sensitive issue.
Deputy Atty. Gen. Arnold I. Burns said department lawyers have concluded that the 1978 law, an attempt by Congress to ensure nonpartisan investigations of prominent government officials, is legally flawed, largely because special counsels are "effectively subordinate to no one" and are "not appointed by the President."
Those challenging the authority of independent counsels, who are appointed by a special federal judicial panel, contend that the right to bring federal prosecutions belongs exclusively to the executive branch.
The independent counsel law has been challenged by former government officials who have been under criminal investigation, including former National Security Council official Oliver L. North and former White House assistants Michael K. Deaver and Lyn Nofziger.
But the U.S. Circuit Court of Appeals for the District of Columbia so far has sidestepped deciding the constitutional issue, ruling, for example, that a backup executive branch appointment given to some independent counsels by Atty. Gen. Edwin Meese III earlier this year made a constitutional decision unnecessary.
The Justice Department's position by no means deals a fatal blow to the law, but its reasoning is usually given significant weight by appellate judges. Federal courts, seeking to avoid excessive interpretation of the Constitution, traditionally have tried to find other grounds for their rulings.
However, because the sole issue raised in the department's objection to the law is the constitutionality of the Ethics in Government Act provision, a ruling on the central question is inescapable. Such a decision certainly would be appealed to the Supreme Court.
The Justice Department made its attack on the law in a brief filed in three matters pending before an independent counsel with the appellate court and in identical letters from Burns to House Speaker Jim Wright (D-Tex.) and Vice President George Bush, who is president of the Senate. The court asked the department Aug. 24 to express its views in a friend-of-the court brief.
Bills to extend the independent counsel law and other provisions of the 1978 Ethics in Government Act, which expires next January, are pending in the House and Senate. In June, Justice Department officials said they would recommend that President Reagan veto the legislation, accusing independent counsels of "defiance," excessive spending and "unconscionable delay."
At the same time, Burns stressed that the department last March sought to ensure the integrity of ongoing independent counsel investigations, including the probe into U.S. arms sales to Iran and the diversion of funds to Nicaragua's rebels, by offering backup Justice Department appointments to special counsels chosen by a panel of appellate judges under terms of the law.
Two Reject Appointment
Such appointments, accepted by Iran-contra counsel Lawrence E. Walsh and Wedtech Corp. counsel James C. McKay but rejected by at least two others, were designed to deflect claims by the targets of their inquiries that the counsels were holding office illegally because they were not appointed by the executive branch.
Burns said the department still supports the need to ensure the integrity of investigations of past or present government officials, an idea that developed from the Watergate scandal of the Richard M. Nixon Administration and from Nixon's 1973 firing of Archibald Cox, then the special Watergate prosecutor.
"There can be no question that the underlying goal of the independent counsel statute--to ensure the integrity of investigations and prosecutions of high government officials accused of wrongdoing--is vitally important," Burns said.
"Neither can there be any doubt that this Administration is deeply committed to ensuring that a mechanism exists to prosecute any and all government officials who dishonor themselves, their President and their country by breaking the law."
However, Burns said in his letters to Wright and to Bush that the department felt compelled to challenge the independent counsel law "to protect the separation of powers that is so fundamental to our constitutional structure."
Burns acted in the case instead of Meese because the attorney general has removed himself from independent counsel matters since he has come under investigation by Walsh and McKay in the Iran-contra inquiry and the probe of the scandal-plagued Wedtech Corp.
Congressional sponsors of the Ethics in Government Act extension could not be reached immediately for comment on the Justice Department's action.
However, Walsh announced that he will seek to answer the Justice Department's challenge of the independent counsel law by filing a new legal brief of his own.
The three related matters on which the court sought Justice Department comment involve challenges by former Assistant Atty. Gen. Theodore B. Olson and two other former top department officials to an inquiry being pursued by independent counsel Alexia Morrison, who is examining allegations that the Justice Department withheld documents from Congress during the 1983 Environmental Protection Agency scandal.
Morrison and Whitney North Seymour Jr., independent counsel in the Deaver lobbying investigation, have refused to accept Meese's backup appointments, presumably out of concern for their independence.