New York Times -- June 31, 1987
Beyond Politics of the Moment, Constitutional Questions
A Case Against Special Prosecutors?
By CLIFFORD D. MAY
HALF a dozen current and former Reagan Administration officials are now the targets of investigations by independent counsels, the specially appointed prosecutors who enjoy almost complete autonomy. So last week, when the Justice Department attacked the independent counsel system as unconstitutional, too costly and subject to abuse, some members of Congress raised questions about the motives behind the attack.
"It sure looks bad," said Senator Carl M. Levin, the Michigan Democrat who is chairman of the Subcommittee on Oversight of Government Management. "After all, this is a system the President supported just four years ago."
John R. Bolton, Assistant Attorney General for Legislative Affairs, said that though Mr. Reagan signed the bill extending the law in 1983, Justice Department officials have long expressed doubts about it. Only lately, he said, has it become clear that "the experiment has failed." For that reason, he said he would recommend that the independent counsel law not be renewed when it expires at year's end. If a reauthorization bill did make it through Congress, he said, he would advise Mr. Reagan to veto it.
The law establishing independent prosecutors was enacted in 1978 as part of the Ethics in Government Act. "One of the things Watergate and the 'Saturday night massacre' taught us was that having high officials investigated by those who work for them or are closely allied with them is not a good idea," said Representative Peter W. Rodino Jr., the New Jersey Democrat who is chairman of the House Judiciary Committee. In the "massacre," President Nixon dismissed a Watergate prosecutor, Archibald Cox, for insisting on access to the White House tapes.
How It Works
Under the current system, if there are serious allegations regarding a top Government official, the Justice Department asks a panel of three Federal judges to appoint a special prosecutor, normally a prominent attorney in private practice, and to define the scope of the investigation. The term independent counsel was later devised to avoid the implication that an investigation is necessarily leading to a prosecution.
In 1984, an independent counsel exonerated Edwin Meese 3d of the financial misconduct charges that were threatening his confirmation as Attorney General. Another independent counsel, James C. McKay, is currently looking into new conflict-of-interest questions about both Mr. Meese and a former White House aide, Lyn C. Nofziger, primarily in connection with the Wedtech military contracting scandal.
Other special prosecutors include Lawrence E. Walsh, who is investigating Lieut. Col. Oliver L. North and others involved in the Iran-contra affair, and Whitney North Seymour Jr., who is examining charges of illegal lobbying by Michael K. Deaver, a former White House aide. Mr. Bolton said last week that Mr. Walsh had spent too much money: $1.3 million as of the end of last month. Mr. Bolton attacked Mr. Seymour as well after the prosecutor subpoenaed the Canadian Ambassador in Washington "in defiance of the most basic principles of diplomatic immunity."
Henry Monaghan, Harlan Fiske Professor of Constitutional Law at Columbia University, said that while he supports the independent counsel law, the questions being raised about its constitutionality deserve debate. "It debases the discussion to attack the motives" of the Justice Department, he said.
The basic thrust of the Administration's argument, Professor Monaghan said, is that criminal prosecutions are a function of the executive branch that, under the doctrine of the separation of powers, cannot be taken away by the Congress or the judiciary. In placing special prosecutors under the control of judges, it can be argued, the law infringes on the powers of the executive.
Defenders of the independent counsel system say that the Framers did not insist upon complete division of authority among Government's branches, but rather intended a pragmatic approach that would avoid "undue disruption" of the executive branch. "I don't think you can make a very good argument that the independent counsel system causes such undue disruption," he said.
Despite Mr. Bolton's contention that independent counsels abuse their powers by pursuing "trivial" leads and focusing on "every technical, picky concern," some have criticized the prosecutors for not being aggressive enough. Those appointed as special prosecutors, the argument goes, tend to be establishment lawyers - Mr. Walsh, Mr. Seymour and Mr. McKay are all Republicans - and view their jurisdiction too narrowly to complete a vigorous investigation.
Toward the end of last week, Senator Levin said he had reason to believe that "the White House is now distancing itself" from the Justice Department's position. A department official who asked not to be identified confirmed that view, adding that there seems to be some White House discomfort over the tone and perhaps even the substance of Mr. Bolton's remarks.
In any case, Mr. Levin said, if the President does choose to veto a renewal of the independent counsel law, "I think we'll have more than enough bipartisan support to overide it."