Court Hears Arguments on Counsels : Decision, Due by July 1, Would Affect Reagan Aides’ Cases

The question before the Supreme Court on Tuesday sounded simple: May Congress set up a system by which judges appoint “independent counsels” to investigate allegations of wrongdoing in the executive branch? Or does the authority to investigate the executive branch lie only within the executive branch itself?

Immediately at stake is the constitutionality of the law establishing the independent counsels who have obtained convictions of former White House aides Michael K. Deaver and Lyn Nofziger and indictments of Oliver L. North and John M. Poindexter. And more broadly at issue is the balance of power between the executive branch and Congress.

The court intends to reach its decision by July 1, before any trial of North and Poindexter in the Iran-Contra case is likely to begin.

‘Executive Function’

Solicitor General Charles Fried, representing the Reagan Administration, told the justices that the law is unconstitutional because it “strips the President of the purely executive function” of investigating and prosecuting federal crimes.

The Constitution gives the President the duty of seeing to it that the laws are “faithfully executed,” Fried argued. If Congress believes that the President is not carrying out his duty, it can impeach him, he concluded.

On the other side, Senate counsel Michael Davidson insisted that only “impartial investigators” may ensure that cases involving high federal officials are vigorously and fairly pursued.

In briefs and arguments to the court, Davidson said the 1978 law, which grew out of the Watergate scandal, remedies the clear conflict of interest that occurs when the crime itself may implicate the President, the attorney general or their aides.

Declared Invalid

It will take five votes among the eight justices hearing the case to save the law. Justice Anthony M. Kennedy is not participating in the decision, and a 4-4 split would affirm a previous appeals court ruling. In that ruling, an appeals panel, with two Reagan appointees forming the majority, declared it invalid.

If the law is struck down, Deaver, former White House deputy chief of staff, could move to have his perjury conviction voided.

It is not clear what impact such a ruling would have on the Iran-Contra indictments of former White House aides North and Poindexter and the conviction of former Reagan aide Lyn Nofziger for illegal lobbying. The independent counsels who investigated them received separate, backup appointments from Atty. Gen. Edwin Meese III.

Regulatory Agencies

Constitutional scholars say a ruling striking down the law could also go as far as to threaten the many independent federal regulatory agencies created during the New Deal era. If the court were to declare that all officials of the federal government must be appointed and controlled by the President, these agencies too could be challenged as unconstitutional.

During Tuesday’s 90-minute argument, three Reagan appointees on the high court--Chief Justice William H. Rehnquist and Justices Antonin Scalia and Sandra Day O’Connor--sharply questioned Davidson about Congress’ argument.

Citing his experience as a Justice Department official, Scalia complained that the law “shifts the balance of power” to Capitol Hill because aggressive congressional investigators can hound Administration officials. In addition to calling them before their committees to berate them and using congressional staff to probe their actions, they also can call for the appointment of an independent counsel with the sole duty of investigating and prosecuting the Administration official, he said.

EPA Scandal

For example, in the specific case before the high court (Morrison vs. Olson, 87-1279), Assistant Atty. Gen. Theodore B. Olson was called to testify in March, 1983, before a House subcommittee investigating a scandal in the Environmental Protection Agency.

The subcommittee undertook its own investigation and, two years later, issued a report criticizing Olson and other Administration officials for withholding documents. At Congress’ urging, the attorney general then agreed to invoke the 1978 law and asked a special three-judge panel to appoint an independent counsel to investigate Olson. Alexia Morrison, a Washington lawyer, was selected for the job.

In their questioning, the high court’s four-member liberal bloc indicated they are inclined to uphold the law and the validity of Morrison’s appointment.

“What’s wrong with a prosecutor being independent?” Justice Thurgood Marshall asked Olson’s attorney, Thomas Martin. Justice John Paul Stevens pointed out that through much of the nation’s history, judges appointed local prosecutors, and the Supreme Court has upheld the practice.

White May Hold Key

The key vote may be held by Justice Byron R. White, who served in the Justice Department under President John F. Kennedy. White consistently votes to uphold congressional statutes. During Tuesday’s argument, White asked questions in a gruff voice to attorneys from both sides, giving no clue as to how he will vote.

The justices will have to look hard at Article II of the Constitution. It says the President “shall nominate . . . 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 (or) in the Courts of Law.”

The Administration’s attorney, Fried, said this clause means that federal prosecutors, as “officers of the United States,” must be nominated by the President.

But the Senate’s lawyer, Davidson, says the clause allows Congress to give the three-judge panel the power to appoint Morrison as “an inferior officer” with a special mission.