The appointment of an independent counsel - or ``special prosecutor'' - to investigate the Iran-contra affair will mark the first significant test of an eight-year-old law designed to prevent another Watergate. Legal experts, including some who helped draft the 1978 Ethics in Government Act, say several other critical factors remain to be determined to ensure there is a thorough investigation of alleged covert White House operations.
One of the key determinations will be who holds the post. There are no guidelines governing the selection of an independent counsel by a panel of three federal judges. But experts say the success of the probe will depend heavily on the expertise, integrity, and drive of whoever is appointed.
Also, it is up to the judges to set the scope of the investigation. They must decide whether to grant the independent counsel broad authority to investigate and prosecute anyone connected to the operations or whether to limit the scope of the investigation to the conduct of administration officials and specific alleged improper acts. (Iran update, P. 2).
``It is essential that the court define the mandate of the special counsel so he or she can follow the trail wherever it leads,'' says Simon Lazarus, who worked on the law in the Carter White House.
Attorney General Edwin Meese hinted in a press conference Tuesday that the Justice Department would urge that the special prosecutor be granted broad jurisdiction to investigate any and all aspects of improper White House covert operations. But some members of Congress have their doubts in light of Justice Department maneuvering in other cases involving calls for special prosecutors.
Democratic Reps. Don Edwards of California and John Conyers of Michigan, both members of the House Judiciary Committee, have written the attorney general asking that a request be made to the panel of judges to make public the scope of the instructions they give to the special prosecutor.
``We don't think it would be appropriate if the scope is too narrow,'' Representative Edwards says.
The Reagan administration is no stranger to the independent counsel law. Four administration officials - including the attorney general himself - have been or are currently the target of probes undertaken by speciallyappointed independent prosecutors.
So far no administration officials have been prosecuted for crimes as a result of such investigations. The independent counsel who in 1984 investigated some of Mr. Meese's financial dealings reported that he found no evidence of criminal wrongdoing.
The point of the law is to prevent potential conflicts of interest in cases where an administration may be reluctant to aggressively investigate a member or ``friend'' of the administration. The law is designed to provide a mechanism to avoid even the appearance of conflict of interest by mandating a full and impartial inquiry.
Nonetheless, questions have already arisen about Attorney General Meese's handling of what he characterized as a preliminary review of the Iran-contra affair. Critics maintain that because Meese rendered a legal opinion to the President 11 months ago about sending arms shipments to Iran and apparently had knowledge of at least some of the covert White House operations, he should have disqualified himself immediately from any Justice Department inquiries into the matter. Instead, the attorney general, assisted by a small group of close aides, conducted his own inquiry into the affair.
``I was not involved in anything that might involve some aspect of illegality,'' Meese said in justifying his participation in the initial review.
Critics also charge that the Justice Department made a serious error in judgment when it failed to take possession of the personal papers of Lt. Col. Oliver North, the National Security Council staff member who is alleged to have organized and run the Iran arms and contra funding operations. Press reports have indicated that during the weekend before he was fired, Colonel North destroyed documents in his NSC office. But some administration officials have suggested that North may have been involved in ``routine'' shredding of documents.
Meese says Justice Department lawyers examined NSC documents and made copies of papers they felt might indicate wrongdoing. He noted that since the matter was simply a preliminary review, he and his associates had no legal basis to request a search warrant or to take possession of personal documents.
In addition to the power to investigate and prosecute alleged criminal conduct, the independent counsel is empowered to request extradition of foreign suspects, and to examine ``all documentary evidence available from any source,'' including documents relating to US national security.