Court Could Overturn Iran-Contra Case : Challenge to Independent Counsels Might Affect Walsh’s Status

One of the chief challenges facing independent counsel Lawrence E. Walsh in prosecuting his Iran-Contra case centers not on the evidence he has assembled but on his legal standing to conduct his investigation at all.

Next month, the Supreme Court is expected to hear arguments that the appointment of independent counsels under the Ethics in Government Act unconstitutionally shifts the role of prosecution from the executive branch to Congress and the judiciary.

Under the law, enacted by Congress in 1978, independent counsels are appointed by a special three-judge federal panel, rather than the attorney general. In January, a federal appeals court said Congress did not have the constitutional authority to give the judiciary the power to appoint federal prosecutors.

Case Could Be Thrown Out

Should this ruling be affirmed by the Supreme Court, the Iran-Contra indictments could be thrown out or, at minimum, tied up in extended legal appeals. The outcome of the issue will rest on a case involving another independent counsel, Alexia Morrison, who will go before the high court April 26.

Most legal experts believe that, in the end, Walsh’s legal efforts will be sustained by the courts. They say there are good reasons--legal and political--for the high court to uphold the 1978 law as written.

Equally important, Walsh finds himself in a stronger legal position than other independent counsels.

In November, 1986, when the outlines of the Iran-Contra affair were revealed, President Reagan and Atty. Gen. Edwin Meese III called for the appointment of an independent counsel. Because these top officials “chose to invoke” the independent counsel law, rather than waiting for Congress or the judicial panel to initiate the process, it undercuts the argument that the presidency is “undermined” by the independent Iran-Contra investigation.

Argument of Professor

That, at least, is the argument that Harvard University law professor Laurence E. Tribe makes on Walsh’s behalf in a friend-of-the-court brief submitted in the Morrison case.

In addition, on March 5, 1987, less than three months after Walsh was appointed by the judicial panel, Meese gave him a separate, executive-branch backup appointment as a special prosecutor to shield him from a constitutional challenge.

“Walsh has two extra strings to hang on. He is in the best position of any of the independent counsels,” said Philip A. Lacovara, former counsel to the Watergate special prosecutor, who added that he believes the independent counsel law is unconstitutional.

Morrison, who is investigating allegations that former Assistant Atty. Gen. Theodore B. Olson lied to Congress in 1983, and Whitney North Seymour Jr., who prosecuted former White House Deputy Chief of Staff Michael K. Deaver, pointedly refused to take backup appointments from Meese to underscore their independence. Their legal standing thus depends on the high court’s ruling in the case--Morrison vs. Olson, 87-1279--which is expected by July.

Implications of Defeat

Nevertheless, a defeat of Morrison before the high court could cause trouble for Walsh.

If the justices say her investigation is illegal because she did not have an appointment from the attorney general, for example, lawyers for Lt. Col. Oliver L. North and the three other Iran-Contra defendants indicted Wednesday could attack Walsh’s investigation as “tainted” by the three-month period in which he operated without an appointment from Meese.

Appeals on those grounds could keep Walsh and his lawyers tied up for months and delay the trials indefinitely.

But most law professors who closely follow the high court doubt that the justices will throw out the independent counsel law. Last week, during a panel discussion of the case at Georgetown University, all six law professors participating said they believe the law to be constitutional.

‘Separation of Powers’

“I would be extremely surprised if they (the justices) find it unconstitutional,” said Georgetown University law professor Mark Tushnet, an expert on the “separation of powers” doctrine. “But I have been surprised before.”

Tushnet and others said they had doubts only because of two recent high court rulings in which the justices rigidly invoked the “separation of powers” doctrine to declare that Congress had overstepped its bounds.

In 1983, the court cited the doctrine in ruling that Congress could not employ a one-house veto of Administration regulations. In 1986, the justices said Congress could not give one of its employees the executive duty of deciding where to cut the budget under the Gramm-Rudman deficit-reduction law.

The independent counsel case, the law professors say, turns on two sentences of Article II of the Constitution. The President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court and all other officers of the United States. . . . But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”

Appeals court Judge Laurence H. Silberman, in striking down the law earlier this year, said federal prosecutors are “officers of the United States” who must be nominated by the President.

Morrison and Walsh contend that they are “inferior officers” who are appointed by “courts of law” under the authority granted by Congress.

Silberman, in his 88-page opinion, cited two other reasons for invalidating the law.

First, he said, the criminal prosecution of federal violations is a “core executive power” that must remain under the control of the President and the attorney general. Second, Silberman said, judges have the constitutional duty to decide “cases (or) controversies,” not to take on the executive duty of appointing prosecutors.

Lacovara, a prominent Washington lawyer, believes the high court will agree with Silberman’s view.

“I think they take ‘separation of powers’ very seriously. This is not just a bookkeeping matter of who has what powers,” he said. “The independent counsel strips the President of his authority and accountability for seeing to it that the laws are faithfully executed.”

On the other side, former University of Chicago law dean Gerhard Casper says this “rigid, airtight” view of separation of powers ignores the fact the Constitution gives Congress broad powers to structure the government as it sees fit.