WHEN THE WHITE HOUSE WANTS TO KNOW: : A Cloud of New Questions

Can the executive branch of our federal government investigate itself and prose cute wrongdoing among its members? Publication of the Tower Commission report on the Iran- contra affair is an occasion to reflect on this question in historical perspective. Specifically, the Teapot Dome scandal of the 1920s, the Pearl Harbor investigations of the 1940s and Watergate in the 1970s each contain parallels and differences to illuminate the current situation.

Tower shares one characteristic with the early reports initiated by a President in all three comparable situations. It is limited, incomplete and superficial. That statement is not meant as criticism of former Sens. John G. Tower and Edmund S. Muskie and Lt. Gen. Brent Scowcroft, the three panel members who served at the request of President Ronald Reagan. They and their staff did a conscientious, commendable job, given the pressure of time, the limited mandate and the obstacles standing in the way of a truly thorough exploration. Lacking the power of subpoena and the ability to grant immunity, the commission was unable to question former National Security Adviser John M. Poindexter or Lt. Col. Oliver L. North, the staff member blamed or credited with so much that he seems to be an entire secret government under one hat. The commission could not trace the diversion of funds, from arms sales to Iran to the contras . It made no effort to investigate the private sources of funds and activity for contra aid.

And above all, Tower, Muskie and Scowcroft consciously avoided trying to determine whether laws had been broken. Yet the heart of this affair is the allegation of irresponsible disregard for law, not simply misuse of the machinery of government. The commission’s criticism, devastating as it is, focuses on the way people, from the President down, violated the decision-making process. The commission does condemn the policy of trading arms to Iran to secure release of hostages, but it says little about the secret illegal war against Nicaragua. It criticizes the President for allowing himself to be deceived and inadequately informed by incompetent assistants, but finds no evidence of fundamental wrongdoing on his part.

Previous President-initiated investigations show a similar pattern. In 1921, the first year of President Warren G. Harding’s Administration, Secretary of the Interior Albert B. Fall leased naval oil reserves at a place called Teapot Dome in Wyoming to a private oil developer. There was a public outcry. Harding said the issue would be examined and in due course sent the Senate what he called a “full and comprehensive report” compiled by Fall. Harding said he knew the details and that the transaction “at all times had my entire approval.”

Harding, in fact, knew nothing about the deal. His death a year later saved him the embarrassment of explaining his ignorance of what turned out to be heinous corruption. A Senate investigation and a special prosecutor appointed by President Calvin Coolidge discovered that Fall had accepted an enormous bribe in return for jeopardizing national security. The oil lease was voided and Fall went to jail. There is no evidence that Harding was guilty of more than incompetence, and since he was dead there was no investigation of his role.

In December, 1941, the surprise Japanese attack on Pearl Harbor left the nation wondering how U.S. forces could have been so unprepared. Who was at fault? President Franklin D. Roosevelt appointed Supreme Court Justice Owen J. Roberts, who had served as special prosecutor in the Teapot Dome affair, to head an investigation. Former President Herbert Hoover feared “that some admiral or general in the Pacific may be made a goat for action or lack of action higher up, and thus a great injustice done.” Hoover was right. Within weeks, Roberts and his commission placed the blame on the Army and Navy commanders in Hawaii. It took five more years and 10 separate investigations, including congressional hearings filling 39 volumes, to demonstrate how broad and deep was the responsibility for 1650813294much responsibility but he died before the congressional investigation.

Watergate, of course, is the most famous political scandal in American history and the only one to bring down a President. We are now constantly admonished not to compare Watergate with the Iran- contra affair, but their investigatory histories have parallels. Shortly after burglars were caught by police at the Democratic National Committee headquarters in June, 1972, the White House denied categorically that anyone working for the President was connected in any way. A Justice Department investigation, touted for its thoroughness, soon reached the same conclusion. It might have ended there but for reporters’ persistence and the burglars’ unhappiness over what they considered inadequate support from their employers--men indeed in or close to the White House.

The Senate began its hearings and President Richard M. Nixon reluctantly agreed to the appointment, by the attorney general, of a special prosecutor, Archibald Cox. Cox proved too persistent in investigating the President’s own possible guilt in covering up the White House connection to the burglary and other crimes. Nixon suddenly perpetrated the “Saturday Night Massacre” of Oct. 20, 1973. When Atty. Gen. Elliot L. Richardson refused to fire Cox and the No. 2 man in the Justice Department resigned, Nixon found a third-level official to do the job. Cox was fired, the office of special prosecutor abolished and its files locked under FBI guard. The smell of burning Constitution was in the air that autumn night.

Ultimately, the Senate Watergate Committee finished its damning investigation, Nixon was forced to accept a new special prosecutor, Leon Jaworski and the House Judiciary Committee began to consider charging the President with impeachable offenses. In August, 1974, Nixon resigned and never had to appear before the Senate on impeachment proceedings. He was saved from criminal charges a few weeks later by President Gerald R. Ford’s pardon.

The ghost of Watergate is palpable today. Again there is a special prosecutor or “independent counsel” as the position is now called. But this time the counsel’s statutory position is far more independent. After Watergate, Congress held lengthy hearings to draft the Ethics in Government Act of 1978, providing for a standing panel of federal judges, named by the chief justice of the United States. This panel appoints a special prosecutor when circumstances warrant. Lawrence E. Walsh was so named in December. He has, under the law, “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.” He can be removed only by impeachment and conviction or by the attorney general for “extraordinary impropriety” or “mental incapacity” or other major disqualifying problems. In other words, he cannot be removed, as Cox was, because the investigation is getting too close.

Because the Tower Commission explicitly avoided considering whether any laws have been violated, the remedy would seem to lie with Walsh’s investigation and possible prosecution of wrongdoers. But the constitutionality of the law providing for the independent counsel has been challenged by Michael K. Deaver, a former White House aide accused of misdeeds unrelated to the Iran- contra affair, and North. They charge the establishment of a prosecutor who cannot be removed by the President violates the separation of powers. Current and former members of the Reagan Administration and some senators agree. And yet the Constitution says that Congress may invest the appointment of officials “in the President alone, in the courts of Law or in the Heads of Departments.” The Ethics in Government Act invests the appointment in the courts.

Deaver and North assume, incorrectly, that separation of powers means watertight compartmentalization where none of the three branches shares any functions with the other. In fact, the constitutional system has always been a fluid blend; functions lie predominantly in one branch or the other but there is considerable sharing at the edges.

Should the Supreme Court uphold the Deaver-North challenge to the Ethics in Government Act, the nation would be back in the morass of the Saturday Night Massacre--where an executive branch accused of wrongdoing and deception on a grand scale could refuse to investigate itself or prosecute its members. The smell of burning would again be in the air. The congressional remedies would then include impeachment (applicable only to individuals in office), disruptive coercion through the power of the purse or amending the Constitution.

In the investigations following Teapot Dome, Pearl Harbor and Watergate, the Presidents either died before the reports were complete (Harding and Roosevelt) or resigned (Nixon). Reagan has nearly two years remaining. The Tower Commission described him as uninformed, misinformed and inattentive--remarkably similar to Harding and Teapot Dome. Otherwise, the commission is quite gentle. But the Constitution requires that the President “take care that the laws be faithfully executed.” Now the people and Congress must ask if the President did take care. If the answer is no, the next necessary question is why? If the President failed through deliberate intent, then he can and should be charged with the “high Crimes and Misdemeanors” mentioned in the constitutional provision for impeachment. If he failed because of physical or mental incapacity, then it is necessary to judge, and soon, whether he can demonstrate the capacity that the presidency requires. If again the answer is no, the time will come for implementation of the 25th Amendment, which sets forth procedures to be followed when “the President is unable to discharge the powers and duties of his office.”