Special-Prosecutor Law Rejected by Appeals Court

Court appointment of independent counsels to investigate alleged wrongdoing by high government officials is an unconstitutional encroachment on the presidency, a federal appeals court ruled Friday.

The 2-1 decision, which could threaten last month’s perjury conviction of former presidential aide Michael K. Deaver, said court appointment of the prosecutors “strikes us as a serious encroachment on the President’s executive authority” to appoint and supervise federal prosecutors.

The post-Watergate law that contains the provision “jettisons traditional adherence to constitutional doctrines of separation of powers and unitary executive, and in so doing, seriously weakens constitutional structures that serve to protect individual liberty,” Judge Laurence Silberman wrote in an 88-page opinion.

The opinion was joined by Judge Stephen Williams. Judge Ruth B. Ginsburg filed a lengthy dissent.

By empowering a special court to appoint independent counsels, Silberman wrote, “Congress has created an executive branch office to perform a core presidential function, and as far as we can determine precluded the President from exercising any influence over the performance of that office even when its performance might interfere with a range of other executive branch responsibilities.”

The decision is not expected to interfere with the work of Lawrence E. Walsh, the independent counsel who is investigating the Iran-Contra affair, because he was appointed by the executive branch as well as by a court.

The Supreme Court on Tuesday refused to consider a challenge to the parallel appointment that Walsh accepted last year from the Justice Department to blunt legal maneuvers by Lt. Col. Oliver L. North, a key figure in the case.

A different three-judge panel of the Circuit Court of Appeals last year upheld the legality of the backup appointments to Walsh. Independent counsel James C. McKay, who is prosecuting former presidential aide Lyn C. Nofziger on illegal lobbying charges, also accepted a backup appointment.

Independent counsel Whitney North Seymour Jr., who prosecuted Deaver, did not accept a parallel appointment from the Justice Department, however.

Immediately after Friday’s ruling, Deaver’s lawyers filed a motion to vacate “the unconstitutionally obtained jury verdicts” against the former deputy White House chief of staff and to dismiss the charges against him.

Deaver faces a maximum 15-year prison term when sentenced on Feb. 25 for lying to a grand jury and a House subcommittee that investigated his lobbying activities.

Power Challenged

The court’s ruling dealt with a challenge to the subpoena power of another independent counsel, Alexia Morrison, to subpoena three former Justice Department officials.

Morrison was reportedly not available for comment, but the case is expected to be appealed, either to the full, 11-member appeals court or directly to the Supreme Court.

The majority opinion said courts lack constitutional jurisdiction to appoint prosecutors, a function reserved for the executive branch, with the advice and consent of the Senate.

In her dissent, Ginsburg said the 1978 Ethics in Government Act that provides for court-appointed prosecutors “strives to maintain the structural design that is the genius of the Constitution--the system of mutual checks and balances. The act’s sole purpose is to curb or avert abuses of executive branch power.”

Provisions Rejected

But Silberman rejected the need for the independent counsel provisions of the law, which were passed by Congress to prevent a President from blocking prosecution of his subordinates.

“The Watergate crisis is, of course, the statute’s genesis and it is in order to spare the country a repetition of that ‘long national nightmare’ that the statute has been enacted,” Silberman wrote.

“That justification assumes--wrongly, we think--that prosecuting Presidents can somehow be made relatively painless. We do not see how such an eventuality can, no matter what structural techniques are employed, be other than a national nightmare,” he added.

Silberman said the Constitution’s impeachment clause gives Congress its ultimate remedy to oust a President who does not allow prosecution of crimes by high officials.

Citations Reversed

“After President Nixon caused one special prosecutor to be discharged, the resulting uproar--and the explicit threats of impeachment--compelled him almost at once to acquiesce in the appointment of another, who was given full authority to pursue criminal charges against the President himself,” Silberman said.

The appeals court reversed contempt-of-court citations issued last summer by U.S. District Judge Aubrey E. Robinson Jr. to three former Justice Department officials for refusing to comply with grand jury subpoenas obtained by Morrison.

She is investigating allegations that former Assistant Atty. Gen. Theodore Olson lied to Congress in 1983 during a dispute over the Environmental Protection Agency’s toxic-waste cleanup program.

The Justice Department joined the three former officials in asking that the court appointment law be overturned. President Reagan, citing doubts about its constitutionality, last month signed a 5-year extension of the law.

Ruling Praised

Olson’s lawyer and the Justice Department praised Friday’s ruling.

In reaction to it, Nofziger’s lawyers asked U.S. District Judge Thomas A. Flannery to rule that prosecutor McKay lacked authority to subpoena documents at the start of his investigation last year before he received his parallel appointment by the Justice Department.

But Flannery refused to suspend the trial, which ended its second week Friday, while he considers the issue.