2 Independent Counsels Tell Court Appointments Are Constitutional

Two independent counsels challenged the legal arguments of their critics Tuesday, saying the federal law under which they were appointed does not violate the separation of powers doctrine in the Constitution.

The 1978 Ethics in Government Act, under which independent counsels are appointed by a panel of judges, does not invade the law enforcement prerogatives of the executive branch of government, Alexia Morrison said in a court brief.

The law is “a measured and limited congressional response to the recurring problem of allegations of criminal misconduct involving high executive branch officials, which inevitably place the Justice Department in a conflict of interest,” she said.

Lawrence E. Walsh, the counsel investigating the Iran- contra affair, contended in a court brief that the independent counsel provisions of the ethics act “represent a measured and balanced . . . response to the problem of guaranteeing the integrity and independence of criminal investigations in matters where the Department of Justice may have a conflict of interest.”

Their briefs were filed in response to a constitutional challenge in a federal appeals court to Morrison’s investigation of former Justice Department official Theodore Olson.

Morrison is investigating whether Olson lied to Congress in an Environmental Protection Agency dispute of 1983, when the Reagan Administration refused to give Congress documents showing political manipulation of the Superfund toxic waste cleanup program.