Debate Over Special Prosecutors

By Richard Lacayo

Call it the Week of the Special Prosecutor. The guilty verdict in the case of former White House Aide Michael Deaver was the first obtained by an independent counsel since the Ethics in Government Act formalized the terms of the job a decade ago. One day before the conviction, a reluctant Ronald Reagan signed into law a bill extending the counsel provisions of the ethics measure for five years. Meanwhile, Washington was bracing itself for the possibility of a raft of criminal indictments in another probe by a special prosecutor: the Iran-contra investigation.

After the extension passed both houses of Congress by sizable majorities, Reagan had little choice but to sign it, despite what he called "strong doubts about its constitutionality." Rejecting the measure would have been especially awkward for the President, since some of those under investigation are among his closest cronies. The Deaver verdict was a victory for Whitney North Seymour Jr., a former U.S. Attorney in Manhattan who was appointed special prosecutor in May 1986. After the verdict, Seymour, himself a Republican, lashed out at the Reagan Administration for its lack of ethical leadership. Without such a guiding example, he said, the best that special prosecutors can do is "put a thumb in the dike."

In addition to Lawrence Walsh, a Wall Street lawyer who is handling the Iran-contra probe, two other independent counsel are at work on investigations:

-- Washington Trial Lawyer James McKay is preparing for the January trial of his influence-peddling case against former White House Political Aide Lyn Nofziger, who, like Deaver, left the White House to become a Washington lobbyist. In a related investigation, McKay is looking into Attorney General Edwin Meese's links to the Wedtech Corp., one of Nofziger's clients. Meese is also being investigated by Walsh.

-- Independent Counsel Alexia Morrison has spent a year and a half exploring accusations that former Assistant Attorney General Theodore Olson gave false testimony to Congress in 1983 about the withholding of Environmental Protection Agency documents from a House investigating committee.

Another probe was quietly closed last week without charges being filed. James Harper, a seasoned tax litigator, had been looking into the finances of ) former Assistant Attorney General W. Lawrence Wallace.

The Ethics in Government Act of 1978 institutionalized the job that Archibald Cox and Leon Jaworski carried out in Watergate -- investigating and prosecuting alleged wrongdoing by senior Government officials in the Executive Branch. With memories of Richard Nixon's Saturday Night Massacre still fresh, Congress aimed to make any future independent counsel more autonomous. It required that they be appointed by a special panel of three federal judges and shielded from arbitrary presidential dismissal. It was left to the Attorney General, however, to decide, after an initial investigation, whether the accusations were sufficiently credible to justify such an appointment.

In the revised law signed by the President, Congress has reined in some of the Attorney General's power. This was in response to some lawmakers' complaints against Meese. "This Attorney General has abused his discretion," says Senate Democrat Carl Levin of Michigan. A number of legislators claim that Meese employed delaying tactics in the Olson case. They also charge that he shielded two Justice Department colleagues from the inquiry. Meese said he did so on the ground that he lacked evidence of their intent to commit a crime. The revised law severely restricts the Attorney General's authority to use such "state of mind" arguments to block a probe. The measure also requires him to disqualify himself in any case involving someone with whom he has a "current or recent personal or financial relationship."

Critics charge that the independent counsel have become weapons in the contest for power between Congress and the White House, turning political disputes into criminal procedures and creating runaway investigations that cost too much, take too long and sometimes ride roughshod over other compelling aims of Government. In the Deaver case, for instance, Independent Counsel Seymour injected himself into U.S. relations with Canada when he tried to subpoena Canadian Ambassador Allan Gotlieb to testify about his government's consultations with Deaver over acid rain. His actions infuriated the State Department and provoked diplomatic protests from Canada.

In separate court challenges, Deaver, Lieut. Colonel Oliver North and Nofziger have all tried, unsuccessfully so far, to have federal courts declare the independent-counsel law unconstitutional. A fourth challenge is pending in federal appeals court, stemming from the investigation of Olson. In August the Justice Department took a stand on the Olson case, filing a brief in which it argued, for the first time officially, that the law is unconstitutional.

Meese's department claims that the statute improperly assigns to the Judiciary powers of appointment that the Constitution reserves for the President. Supporters of the law reply that the "appointments clause" of the Constitution gives Congress the option of allowing courts to appoint certain "inferior officers." They say that description applies to independent counsel, who are appointed for a single task to serve for a temporary and limited period. Opponents say otherwise. An independent counsel, says Griffin Bell, Attorney General under Jimmy Carter, "has unbridled power and unfettered discretion to prosecute."

A decision on the Olson challenge is expected shortly, but the outlook for the Administration is not promising. A lower-court ruling in the case upheld the law. The Supreme Court, which may have to decide the matter in the end, has generally favored a flexible interpretation of the separation of powers. The revised law will make appointment of future prosecutors easier to accomplish. "I see a lot more independent counsel roaming around," predicts Assistant Attorney General John Bolton. The Week of the Special Prosecutor may be just a preview for the Year of the Special Prosecutor, in 1988.

With reporting by Anne Constable/Washington