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Justices to Rule on Independent Counsels

February 23, 1988|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — The Supreme Court, attempting to resolve a constitutional clash between Congress and the White House, announced Monday that it will decide whether the independent counsel law is a legal way to attack high-level government corruption or an unconstitutional infringement on the President's power.

The court will examine the crucial question of how the counsels are appointed--by a special three-judge panel, as directed by the 1978 Ethics in Government Act, rather than by the executive branch.

Hanging in the balance is the perjury conviction of former White House Deputy Chief of Staff Michael K. Deaver, who was prosecuted by a court-appointed counsel this year.

'Parallel' Appointments

Also possibly affected are the conviction on illegal lobbying charges of former presidential aide Lyn Nofziger and the pending investigations of Atty. Gen. Edwin Meese III and Iran-Contra figures Oliver L. North and John M. Poindexter. In those cases, the independent counsels were appointed by courts but later received "parallel," or backup, appointments from the Justice Department. The high court, in a brief order, scheduled arguments for April 26, with a decision likely by the end of the court term in late June or early July.

Attorneys for Deaver, North and for Theodore B. Olson, a former assistant attorney general who also is the subject of an independent counsel's inquiry, have charged that the investigations of them were invalid because, they said, only the executive branch has the constitutional authority to conduct such actions.

North's lawyers have discounted the backup appointments on the grounds that the counsels are still independent of the Justice Department.

After the Watergate scandal of the Richard M. Nixon Administration, Congress sought a mechanism for effective investigations of high official wrongdoing and, in passing the ethics law, provided for court-appointed independent counsels so that there would be no conflict of interest in an administration.

But Presidents since then--Jimmy Carter and Ronald Reagan--both have viewed the law as unconstitutional.

Law Struck Down

Last month, a federal appeals court here struck down the law, with two Reagan appointees providing the majority to rule in favor of Olson in his case (Morrison vs. Olson, 87-1279). Olson has been investigated for allegedly lying about key documents during a 1983 congressional investigation of the troubled Environmental Protection Agency.

The high court review will focus on Article II of the Constitution. The key passage says that the President "shall nominate, and by and with the advice and consent of the Senate, . . . appoint . . . all other officers of the United States . . . but Congress may by law vest the appointment of such inferior officers, as they think proper . . . in the courts of law."

Lawyers for Olson and North read this clause to say that all federal prosecutors, as officers of the United States, must be appointed by the President. Lawyers representing the independent counsels say that they are "inferior officers" with limited powers who may be appointed by a court at the direction of Congress.

Appellate Judge Laurence H. Silberman cited two other reasons for declaring the law unconstitutional in his 88-page opinion. The Constitution gives the President the duty to see to it that the laws are "faithfully executed," and this means that all prosecutions must be under the President's control, he said. And, finally, federal courts have only the duty to decide "cases" or "controversies," and appointing prosecutors puts judges in a role that they must avoid, Silberman said.

In her appeal, Alexia Morrison, the independent counsel investigating Olson, told the high court that the law should be upheld because of "the public interest in effective, efficient prosecutions" of illegal actions by presidential advisers.

Walsh to File Brief

Iran-Contra investigator Lawrence E. Walsh and Harvard University law professor Laurence H. Tribe said they will file briefs urging the justices to uphold the 1978 law. In a related, but separate, appeal, the justices Monday refused to hear a plea from North seeking to have the Iran-Contra investigation stopped in mid-stream. The lower courts said that North's appeal was premature.

The sentencing of Deaver, who was convicted of perjury in connection his post-government lobbying activities, has been delayed until the issue is decided.

In another action, the court said that it will hear a new round of arguments before deciding whether military contractors may be sued by servicemen and their survivors, or whether they are immune from suit, as is the military.

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