Special-prosecutor law comes under fire. Administration, Congress clash over separation of powers

President Reagan and Congress appear to be headed for a confrontation over the issue of special prosecutors. Lawmakers have begun to consider an extension of the law setting up ``independent counsels'' to investigate alleged wrongdoing by executive officials. The law is part of the 1978 Ethics in Government Act passed in the wake of the Watergate scandal.

But the Reagan administration, shadowed by the Iran-contra affair and a rash of special investigations of former and current officials, has launched an attack on the law, which expires in January.

The Justice Department this week sent a letter to Congress denouncing the system of special prosecutors as violating the separation of powers and therefor unconstitutional. It said it will urge Reagan to veto a bill reauthorizing the appointment of independent counsels.

Although the President has not committed himself to such a veto, the assault on the law by the Justice Department with White House blessing has aroused criticism from members of Congress, the American Bar Association, and many legal experts.

``The law is entirely constitutional and serves the vital national purpose and the attack is completely unfounded,'' says Laurence Tribe, a constitutional scholar at Harvard University.

``This is pushing notions of separation of powers out of shape,'' says Elliot Richardson, who resigned as attorney general in 1973 rather than fire Watergate special prosecutor Archibald Cox. ``The way to get an impartial [inquiry] is to draw on the experience of people deemed to be beyond political influence ... That ought to prevail over mechanistic notions of separation of powers.''

Special prosecutors are now investigating a number of past or present Reagan officials, including Lt. Col. Oliver North and others involved in the Iran-contra affair, Attorney General Edwin Meese III, former White House aides Michael K. Deaver and Lyn C. Nofziger, and former assistant attorney general Theodore Olson. Mr. Deaver, accused of perjury about his lobbying efforts, and Colonel North are challenging the constitutionality of the independent counsel law in the courts.

``I would never have believed in '73 that there would arise in the subsequent decade and a half so many situations involving sleazy conduct by highly placed people,'' says Mr. Richardson in defending the independent-counsel statute.

According to the Justice Department, the law is unconstitutional because it puts the independent counsel under the control of a court rather than the president, thus violating the separation of powers. The law provides for the appointment by a court of independent counsels to investigate charges of malfeasance by executive officials whenever the attorney general determines such a probe is warranted.

Not all constitutional experts favor the law. Some agree with the Justice Department argument that prosecution is an inherent function of the executive not judicial branch and therefore Congress cannot establish a prosecutor independent of the president.

``The law is clearly unconstitutional because it violates separation of powers,'' says Walter Berns, a legal scholar at the American Enterprise Institute. ``The judiciary made an appointment of an executive position and that violates the Constitution.''

But other experts contend that Article II of the Constitution is clear authority for the independent counsel law. This article states that the ``Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of the law, or in the heads of departments.''

Dr. Berns interprets this provision to mean that ``inferior officers'' in the judiciary could be appointed by someone in the judiciary, officers in the executive branch by someone in the executive, and so on.

Philip Kurland, a constitutional scholar at the University of Chicago, takes issue. He says that the role of a prosecutor seeking an indictment from a grand jury is not an executive branch function.

Historically, he notes, there are no precedents for requiring that prosecutors be under the executive branch. In fact the Justice Department was not established until 1870 and federal courts have long been appointing prosecutors.

``When you have an executive branch that is as lackadaisical about conforming to constitutional requirements as the Nixon administration was and the present administration is,'' says Mr. Kurland, ``the [independent counsel] law is highly desirable.''

Dr. Tribe concurs. There is nothing improper about vesting appointment of special prosecutors in the courts, he says, and the White House argument is an argument for an ``imperial presidency'' and an effort to skirt the rule of law.

In his letter to Congress, Assistant Attorney General John R. Bolton also criticized the independent counsels for spending too much money, dragging out investigations, and being too picky. But he and the White House say that the government will continue to fund the current independent counsels regardless of the fate of pending legislation.

The bill being sponsored by Sen. Carl Levin (D) of Michigan, and Sen. William S. Cohen (R) of Maine, would strengthen the independent counsel statute and make it permanent. It has bipartisan support and is expected to be adopted.

The investigators

Special prosecutors, or independent counsels, investigate allegations of wrongdoing by high government officials and, if appropriate, prosecute the officials. They are appointed by a panel of federal judges at the request of the Justice Department to avoid the appearance of a conflict of interest in sensitive prosecutions.

Since 1979, four investigations by special prosecutors have been completed without charges being brought. Six other investigations are in process, two of which are confidential. Below are the publicly identified prosecutors.

Alexia Morrison was appointed in April 1986 to investigate allegations that Theodore B. Olson, a former assistant attorney general, gave false testimony to Congress about the withholding of Environmental Protection Agency documents from congressional investigators. A Justice Department official recently criticized Ms. Morrison for ``unconscionable delay'' in her investigation.

Ms. Morrison also represents Carl (Spitz) Channell, a conservative fund-raiser who recently pleaded guilty to a charge growing out of the investigation of the Iran-contra affair.

Whitney North Seymour Jr. was appointed in May 1986 to investigate conflict-of-interest allegations against Michael K. Deaver regarding his lobbying activities after he resigned as a top White House aide in 1985. He was indicted on perjury charges in March.

Lawrence E. Walsh was appointed in December 1986 to investigate the Iran-contra affair. Thus far, Mr. Channell and Richard Miller, a former White House aide, have pleaded guilty to defrauding the government by using tax-exempt organizations to raise funds to buy arms for the contras.

James C. McKay was appointed in February 1987 to investigate allegations that Lyn Nofziger, a former Reagan aide, violated ethics laws in lobbying on behalf of Wedtech Corporation after he left the White House. Attorney General Edwin Meese III also is being investigated in connection with Wedtech's government contracts.