Justice Dept. Counsel Attack Questioned

Key Justice Department officials, including the head of the criminal division, advised against the department’s controversial attack this week on the constitutionality of independent counsels because of how it might appear to the public, The Times learned Wednesday.

The disclosure of deliberations on the sensitive issue, representing a breach of the secrecy normally surrounding such matters, came as court records revealed that the department had made its move against independent counsels on its own--not at the request of a federal appeals panel--as the department had suggested earlier.

Department sources said that Assistant Atty. Gen. William F. Weld, reflecting the views of career prosecutors assigned to matters involving independent counsels, opposed the move for “prudential” reasons, but not on legal grounds.

Worries About Timing

“He argued ‘Why is it necessary, and why right now?’ when Atty. Gen. Edwin Meese III, two former top aides to President Reagan, and all the Administration people in Iran- contra are under investigation by independent counsels,” one department official said.

Weld, the criminal division chief, feared that the attack would be interpreted as a politically motivated effort to shield those officials, the source said.

Weld declined comment to The Times on grounds that “it’s not advisable to discuss internal deliberations.”

Terry Eastland, the department’s public affairs director, said: “As with most every litigation question presented to the department, on this issue department lawyers presented various views. It would be inappropriate to discuss who took which view. This was a decision made ultimately by (Deputy Atty. Gen.) Arnold Burns, and certainly all of us in the process supported him in his decision.”

In his brief filed Monday, Burns told the U.S. Circuit Court of Appeals for the District of Columbia that the department believes the law authorizing the appointment of independent counsels violates the separation of powers doctrine. The law is flawed because a special court appoints the outside prosecutors, while only the executive branch has that authority under the Constitution, he maintained.

The appeals court is weighing a challenge citing similar grounds filed by a former Justice Department official being investigated for alleged misconduct. The issue has been raised by the targets of several other independent counsel probes, including Iran-contra figure Oliver L. North, but no final rulings have been handed down in those cases.

In announcing the decision to file the opinion, Burns said that the court “asked for our participation . . . “

Actually, in its Aug. 24 order, the appeals panel merely notified the attorney general that the constitutionality of independent counsels was being challenged and said: “The attorney general shall file any brief simultaneously with the party he supports,” a statement short of a request that the department take a stand on the question.

In arguing against challenging the constitutionality of the independent counsels, Weld endorsed arguments made to him by Gerald E. McDowell, chief of the department’s public integrity section, according to department sources.

Weld’s fear that the move would be seen as an attempt to derail independent counsel probes seemed to be borne out when Common Cause, the public interest lobby, denounced the department’s action as showing “extraordinary insensitivity to the need for public confidence in the evenhandedness of our criminal law enforcement system.”

It was Burns, the department’s No. 2 official, who made the decision to file the brief because Meese is involved in independent counsel probes. Counsel James C. McKay is probing Meese’s relationship with Wedtech Corp., a scandal-plagued New York defense contracting firm, and he is involved in the Iran-contra probe as well.

Consults With Officials

Before deciding to file the brief, Burns consulted with officials throughout the department.

Eastland, the department spokesman, said Wednesday that it would have been “very unusual if the government sat this question out--a question involving separation of powers, particularly the executive branch--and let it be settled by private litigants. . . . Why stay out of a big fight that’s going to be the O.K. Corral” of constitutional litigation?

The case involves an investigation of former Assistant Atty. Gen. Theodore B. Olson on allegations that he withheld information from a congressional probe of the Environmental Protection Agency during President Reagan’s first term.

Olson was joined by former Deputy Attys. Gen. Edward Schmults and Carol Dinkins in challenging the constitutionality of independent counsel provisions. Independent counsel Alexia Morrison, who is conducting the Olson investigation, has unsuccessfully sought to expand the probe to Schmults and Dinkins and now is seeking to subpoena material from them.