Independent Counsel Law Questioned

The Reagan Administration told the Supreme Court today that the law establishing independent counsels unconstitutionally “strips the President of a purely executive power” and improperly relieves Congress of its duty to scrutinize federal officials.

The power to prosecute high-ranking federal officials “cannot be turned over to a serene process . . . to platonic guardians” outside the political fray, said Solicitor General Charles Fried, the Administration’s top courtroom lawyer.

The justices heard 90 minutes of arguments in a crucial battle over the federal law that lets independent counsels, formerly called special prosecutors, investigate alleged crimes by high-ranking federal officials. The high court’s decision is expected to be announced by July.

Among those defending the law today was Michael Davidson, representing Senate leaders.

Davidson, questioned vigorously by several justices, said the post-Watergate law does not tip the balance of power the Constitution apportioned among the executive, legislative and judicial branches.

Scalia’s Question

He said the law permits the attorney general to remove any independent counsel who is misusing his power.

The law “prevents the removal of an independent counsel who is too vigilant,” Davidson said. “But the independent counsel must stay within the constitutionally required parameters of his office.”

Davidson was responding to a question by Justice Antonin Scalia, who raised concern Congress might trigger an investigation of an official simply because members of a committee did not like the official’s response to their questions.

“I am concerned about the reality of affecting the balance of power” between the branches, Scalia said. A congressional committee could call for an independent counsel investigation “anytime testimony (by an official) is displeasing,” he said.

Fried said a problem of the law is that it excuses Congress from exercising its proper scrutiny over the President.

He cited the Watergate scandal as the prime example of the political system working properly. Public opinion and the threat of impeachment--rather than an independent prosecutor--guaranteed that the Nixon Administration was investigated thoroughly, Fried said.