Failure of a Power Grab

When it joined the assault on the independent-prosecutor law, the Reagan Administration staked out an extreme and even imperious position: The President must have total authority over law enforcement because anything short of that would trample on the separation-of-powers principle of the Constitution. Even if his closest aides are suspected of wrongdoing, it must be up to him to decide whether to prosecute them. And if Congress believes he is shielding them, it can impeach him.

But imperiousness doesn’t sit well with the Supreme Court, not even with President Reagan’s own appointees. One of them joined the man whom Reagan promoted to chief justice in a dispassionate 7-1 decision that declares that nothing in the Constitution requires that the executive branch must be allowed to police itself; the ruling should put an end to the most brazen power grab that Washington has seen in years.

For the nation’s radical right, eliminating the independent counsels had become a cause celebre ; the pesky counsels and the law that authorized them, the Ethics in Government Act, were depicted as an attempt by a liberal Congress to intimidate and harass a popular and conservative President. That argument overlooked the fact that the law was adopted in 1978, with a Democrat in the White House, by a Congress concerned--in the wake of Watergate--about whether any Administration could be trusted to investigate itself.

The mechanism that Congress devised is far from perfect. It requires the attorney general to decide whether allegations of criminal activity by a high-ranking official merit further investigation, then turn to a special three-member federal court to appoint an independent counsel, free of Administration control, to carry out the inquiry. The result, in the wrong hands, can be a rush to indict. No attorney general who cares about his own survival is likely to recommend against further investigation. And a counsel who has devoted months, even years, to a single cause may be tempted to prolong a probe unnecessarily, to prosecute simply to justify his own existence (though the counsel now investigating Atty. Gen. Edwin Meese III has indicated that he will not be charged). The process is expensive, too; the counsels’ budgets account for about one-tenth of the Justice Department’s spending.

Whatever the system’s flaws, however, no alternative can offer any more assurance that justice will be done when the President’s own men are under scrutiny. And now the Supreme Court, after a methodical review of all the Administration’s objections, has found no constitutional infirmity. Chief Justice William H. Rehnquist’s majority opinion concluded that the independent-counsel law does not amount to “congressional usurpation of executive branch functions,” because Congress has no control over the counsels and does not expand the power of the federal courts inasmuch as the Constitution explicitly permits judges to appoint some “inferior officers.” Rehnquist conceded that an independent counsel who can be dismissed only for “good cause,” rather than at whim, may impinge on the Administration’s authority, but he could find no “impermissible” interference with the President’s functions.

Coming from Rehnquist, whom Reagan promoted largely because he was considered a reliable conservative, the opinion may be perceived in some quarters as a stinging blow. But, in fact, it is a largely apolitical document, devoid of rhetoric or broad pronouncements or even quotable passages, that studiously ignores the major cases on which it will have a direct effect, including the pending prosecutions of Iran-Contra figures. In interpreting something as fundamental as the separation-of-powers doctrine, a court should be able to forget who sits in the White House; this court has.