Last week's U.S. Court of Appeals decision finding the special-prosecutor law unconstitutional is disappointing. No time should be lost in seeking a review by the Supreme Court. And, in the unlikely event that the highest court should reach the same conclusion, the matter requires rapid remedy in Congress so that this element of the system of justice is preserved.
Supreme Court justices have already upheld the legality of the special prosecutors who have also received a backup mandate from the Department of Justice. The earlier rulings indicate that the investigation of the Iran scandal by Lawrence E. Walsh will not be disturbed by this appeals court ruling. The dispute centers on the prosecutors, now known as independent counsel, who are operating solely under the mandate of the Ethics in Government Act of 1978.
The need for legislation was demonstrated when former President Richard M. Nixon passed along an order to then-Acting Atty. Gen. Robert H. Bork to fire Archibald Cox, the Watergate special prosecutor, in October, 1973. Under the 1978 law that was approved in the wake of Watergate, the special prosecutor is appointed by, and can only be dismissed by, a panel of three federal judges chosen by the chief justice of the United States. The attorney general initiates the request. The role of the judiciary in naming the prosecutor was held by the appeals court to violate the constitutional provisions that delegate authority for criminal prosecution to the executive branch.
President Reagan and his attorney general, Edwin Meese III, have been critics of the legislation. Meese himself was the object of an investigation by a special prosecutor, but there was no indictment. Eight of the 10 cases in which special prosecutors have been named since the adoption of the law have been directed at officials of the Reagan Administration.
The 1978 law has been constructed, it seems to us, in a way that protects the separation of powers among the three branches of government while providing appropriate safeguards for a credible independent investigation of officials of the government in power.