High Court Declines to Rule on Independent Counsels

The Supreme Court, refusing to block the perjury trial of former White House aide Michael K. Deaver, declined to decide Monday whether the independent counsel law is unconstitutional.

The one-sentence high court order removes the last obstacle before the scheduled Oct. 19 trial. However, the court order says virtually nothing about how the justices view Deaver’s argument that the 1978 Ethics in Government Act violates the Constitution’s separation of powers doctrine.

Attorneys for Deaver, Lt. Col. Oliver L. North and other former government officials have contended in court papers that, under the Constitution, the executive branch has “exclusive authority” to prosecute federal crimes. By contrast, under the 1978 law, independent counsels are appointed by a three-judge panel, part of the judicial branch.

Watergate Wake

Atty. Gen. Edwin Meese III, as well as such predecessors as Griffin Bell during the Jimmy Carter Administration, have also said that they believe the law is unconstitutional. The law was enacted in the wake of the Watergate scandal to ensure independent government investigations.

The Supreme Court Monday joined a series of lower courts in resisting efforts to decide the constitutionality question before an actual conviction.

In most cases, the high court refuses to intervene until the lower courts have completed their work. Deaver, a long-time confidant of President Reagan and his wife, Nancy, was the first former federal official indicted by an independent counsel but has yet to be tried.

Without comment, the justices refused to hear Deaver’s appeal.

Deaver resigned as deputy White House chief of staff in 1985 to form a lucrative lobbying firm. A year later, an independent counsel was appointed to investigate charges that he had violated federal conflict-of-interest laws by lobbying his former White House colleagues.

Deaver pleaded not guilty to the conflict-of-interest charges but was charged in March, 1987, with five counts of lying to a grand jury and to a House subcommittee investigating possible ethics violations in his lobbying on behalf of Canada and other clients.

In urging the high court to consider their pleas on the constitutional challenge before the trial, Deaver’s attorneys said that it would be “a monumental waste of government resources, as well as a severe and massive intrusion in individual rights” to let the trials proceed.

“We think it fair to say that there is no more openly debated and publicly important question of law today than the constitutionality of the independent counsel,” Deaver’s lawyers told the court.

Despite Monday’s order, the high court is likely to consider the issue at some point, possibly even later in this term. Six independent counsels are known to be at work pursuing former and current federal officials. The counsels include Lawrence E. Walsh, who is investigating North’s role in the Iran- contra affair.

But the case most likely to move to the high court is perhaps the most obscure. Since 1983, independent counsel Alexia Morrison has been compiling information on several former Justice Department lawyers who sought to withhold some documents in a scandal at the Environmental Protection Agency.

Recently, the former department officials refused to comply with further requests for information and were held in contempt of court. Their appeals of these charges are expected to move quickly through the courts and may prompt a high court review of the entire issue. Meese has sided in this case with the former officials and against the independent counsel.