AFTERMATH OF THE TOWER REPORT : Special Counsel Suits Shaping Up as a Constitutional Battle of Words

It is not a phrase from the Constitution that many a schoolchild, or even most lawyers, can recite: “The Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law or in the heads of the departments.”

But on that heretofore obscure sentence may depend the constitutionality of the office of “independent counsel,” according to many legal scholars.

After President Richard M. Nixon fired Watergate special prosecutor Archibald Cox in 1973, it became clear to Congress that it needed to create a counsel who could be independent from the executive branch.

But that very independence violates the Constitution’s separation-of-powers doctrine, attorneys for former White House aides Michael K. Deaver and Lt. Col. Oliver L. North said in suits filed this week.

In Hot Pursuit

Independent counsels are in hot pursuit of both men: Deaver’s suit was filed just minutes before counsel Whitney North Seymour Jr. was to seek an indictment of the former White House deputy chief of staff on charges of having lied before a grand jury.

But Judge Thomas P. Jackson agreed that Deaver’s suit “raised substantial questions as to the constitutionality” of the independent counsel, and he put further proceedings on hold until the issue could be argued March 11.

But many legal experts and attorneys who have been involved in separation-of-powers cases doubt the claim that the Constitution requires all appointments such as prosecutors to be made “exclusively” by the President.

“What Congress has done here is invest a court of law with the power to appoint an inferior officer, someone who is not the head of the department. And the Constitution plainly says this can be done,” said Cass Sunstein, law professor at Harvard University.

The suits by North and Deaver face “their biggest obstacle in this language. I think they have raised a plausible argument that should be and will be rejected,” Sunstein said.

The arguments themselves are not new ones, at least not within the halls of the Justice Department. Since the Ethics in Government Act was passed in 1978, top attorneys in both Democratic and Republican administrations have questioned its legality.

Backed by Carter

Shortly after the law’s passage, former Atty. Gen. Griffin Bell, for example, said that he believed a federal prosecutor who was neither appointed nor controlled by the executive branch was unconstitutional. But the man he served, former President Jimmy Carter, insisted on supporting the law as an important step to restore the public confidence in government after the Watergate era.

President Reagan faces an even more pointed legal and political dilemma, however. Top Justice Department officials, including Charles Cooper, head of the Office of Legal Counsel, have declared that they think the law is unconstitutional and should be challenged if an “appropriate” case comes along.

Ironically, the first direct challenge comes in a case where Reagan and Atty. Gen. Edwin Meese III sought an independent counsel to pursue the criminal investigations of North and Vice Adm. John M. Poindexter, former national security adviser.

Because both Meese and independent counsel Lawrence E. Walsh are defendants in the suit brought by North, the attorney general must decide within the next few weeks whether to defend the law. On Friday, Justice Department officials said they had not decided what to do, but sources said it was likely that Walsh would be appointed as a federal prosecutor--allowing him to continue the investigation, regardless of the outcome of the suits.

Regardless of Meese’s decision, the arguments will be heard in Deaver’s challenge March 11. Attorneys for Deaver contend that the Constitution calls for a rigid separation of the branches of government. The President “shall take care that the laws be faithfully executed” and “shall appoint . . . all other officers of the United States,” according to the Constitution.

From this language, the lawyers for North and Deaver--whose suits are nearly identical in their arguments--conclude that “under the Constitution, the function of prosecuting offenses against the United States belongs exclusively to the executive.”

Independent counsels are appointed by a three-judge panel at Meese’s request. Once the counsels are appointed, the attorney general is obliged to aid them when they request help; neither the attorney general nor the President can fire them without “good cause.”

“These features of the statute . . . divest the President of important and exclusively executive power and authority,” according to the suit, and therefore “render the statute unconstitutional both on its face and as applied.”

Finds It Amusing

Gerald Gunther, Stanford law professor, said he found it amusing that the conservative attorneys in the Reagan Administration are among the leading voices in questioning the independent counsel law.

“You would think these fervent advocates of a strict reading of the Constitution would be stopped short by the actual text, which authorizes this kind of appointment by a court of law,” Gunther said.

Abbe Lowell, a Justice Department official in the Carter Administration, said the North and Deaver suits have a “superficial appeal.”

“It looks good on paper as a hypertechnical argument about separation of powers,” said Lowell, who was also a counsel for the House Ethics Committee. “But the very text of the Constitution (by permitting appointment of inferior officers) undermines what they are saying.”

Lowell also noted that since the founding of the nation, judges have appointed district attorneys for a temporary period when a vacancy arises, and those prosecutors have full powers to bring indictments until the Administration names a permanent replacement.

“That has been the routine practice for 200 years, and it’s not been successfully challenged,” he said.

Deaver’s attorney, Randall Turk, said he expects the case may turn on the “inferior officers” clause of the Constitution, and his suit argues at length that that language refers to clerks, postal inspectors and other government functionaries.

The independent counsel “exercises all the power and authority of the attorney general and Department of Justice,” Turk contends in his suit. “It would defy all logic for anyone to conclude that an independent counsel . . . was an inferior officer within the meaning of that clause, for in no meaningful sense does the independent counsel have a superior.”

‘Borders the Absurd’

However, Steven Ross, counsel for the clerk of the House, said it “borders the absurd” to say that the independent counsel has the same powers as the attorney general.

While the attorney general is the nation’s top law enforcement officer and a close adviser to the President and has “thousands of employees working for him,” the special counsel has a “limited task, a limited staff and works for a limited duration,” said Ross, who may have to defend the independent counsel law if the Justice Department refuses to do so.

Most of the attorneys shied away from predictions on what will happen if this case reaches the Supreme Court, however. But in a 1983 case, the justices invoked the separation-of-powers doctrine to strike down the practice of having one house of Congress veto regulations by an executive department. In another case, the high court last year struck down part of the Gramm-Rudman deficit-reduction law, which allowed Congress to turn over budget-cutting authority to the comptroller of the currency.

“If you had made that contention (that the independent counsel law was unconstitutional) seven or eight years ago, I would have laughed,” Gunther said. “But with these recent decisions which take a wooden view of the separation of powers, you can’t say what will happen. The court seems to believe the framers wanted all power to be held in tight compartments.”

The recent opinions from the high court ignore the fact, Gunther said, that the Constitution allows for much overlap among the branches of government: The President proposes legislation to Congress and can veto the results. Congress can alter the powers of the President. Members of the Supreme Court are appointed by the President. They are confirmed by the Senate, which also helps set their salaries. But the court can invalidate actions by Congress.