Justice Dept. Questions Special Counsels’ Legality

The Justice Department, under fire for launching “an indirect assault” on independent counsel probes, raised “very grave doubts” Thursday about the constitutionality of the present law and suggested that the power to name outside prosecutors be given to the attorney general.

“You want us to gut the statute,” Sen. Carl Levin (D-Mich.) charged. But John R. Bolton, assistant attorney general for legislative affairs, insisted that the department wants only to permit outside prosecutors to operate “without constitutional problems.”

Bolton made his suggestion in testimony before a Senate Governmental Affairs subcommittee that is considering reauthorizing the Ethics in Government Act, which expires next January. The act established the office of independent counsel and set out the method by which they are appointed.

Two Other Investigations

In another development Thursday, it was disclosed that independent counsels have been appointed or are being sought in two additional investigations, which would bring to six the number of such cases under way.

One of the new inquiries involves W. Lawrence Wallace, former assistant attorney general for administration, who has been under investigation on a tax-related matter, a federal law enforcement source said. No details about the other case could be learned.

The new cases were disclosed in a March 13 letter from Bolton to Levin, chairman of the Senate subcommittee, that was made public at the hearing. Bolton did not comment on them. In his testimony, Bolton said the Justice Department “would be prepared to argue its (the ethics law’s) unconstitutionality” if a “proper case” were lodged challenging it.

He said it is his opinion that the law is vulnerable on the grounds that the counsels are appointed by a special judicial panel, rather than by the attorney general, and that the attorney general may not legally control or remove a counsel. Some legal authorities maintain that the Constitution vests the power of prosecution solely in the executive branch.

North Challenge Rejected

Lt. Col. Oliver L. North, a central figure in an independent counsel’s investigation of the Iran- contra affair, recently attacked the constitutionality of the law, but the Justice Department did not intervene on his behalf, instead arguing successfully that North could not make such a challenge unless he had first been indicted.

Levin, chairman of the subcommittee on oversight of governmental management, charged that Bolton and Atty. Gen. Edwin Meese III “want to return us to 1973, when the headlines were ‘Nixon Fires Cox.’ ”

Archibald Cox, the Watergate special prosecutor fired by President Richard M. Nixon at a time when such counsels were appointed by the executive branch, was among those who testified Thursday in support of strengthening the ethics law. Cox encouraged Congress to tighten any loopholes in it.

“We just don’t want the President’s man investigating the President’s people,” Levin said. “The public has no confidence in that process, and neither do we.”

Bolton contended that the counsel’s independence would be retained if the attorney general appointed the counsel because an attorney general who failed to pick a highly qualified, unbiased counsel “would pay an enormous political price.”

Sen. William S. Cohen (R-Me.) said the “implication” that the Justice Department desires to return to the years before the independent counsel provisions existed “is not fair at all.” He noted that the department has “historically resisted any attempt to erode” its authority through appointment of outside prosecutors.

Levin said that a study by subcommittee investigators of the department’s handling of independent counsel matters showed a pattern of the department’s undermining the law for five years “by misapplying its provisions and abusing the department’s decision-making authority.”

Among examples cited by Levin was Meese’s review last year of allegations of financial improprieties by Faith Ryan Whittlesey, U.S. ambassador to Switzerland, who once worked with Meese at the White House.

Instead of conducting the 90-day preliminary investigation provided by the law to decide whether to seek appointment of an independent counsel, Meese conducted what was described as an “inquiry,” Levin noted. This ran for six weeks and involved sending department attorneys to Switzerland, France and across the United States.