Special Prosecutors Struck Down; Deaver May Benefit : Appellate Court Hits Judges’ Role

A federal appeals court today struck down as unconstitutional the judicial appointment of independent counsels to investigate alleged misconduct by high government officials.

In a 2-1 decision that could overturn former White House aide Michael K. Deaver’s recent perjury conviction, the U.S. Circuit Court of Appeals here agreed with a challenge holding that court appointment of special prosecutors violates the separation-of-powers doctrine.

In effect, the court found that Congress, the legislative branch of government, does not have the power to transfer prosecutorial authority from the executive to the judicial branch.

The decision appears to have no effect on the authority of independent counsel Lawrence E. Walsh to continue investigating the Iran-Contra affair.

‘Soberly and Not Easily’

The Supreme Court earlier this week upheld the legality of a parallel appointment Walsh accepted last year from the Justice Department to blunt a constitutional challenge mounted by Lt. Col. Oliver L. North, a key participant in the arms deals.

“Mindful as we are of the distinguished array of legal talent and institutional authority asserting the constitutionality of the Ethics in Government Act, we come only soberly and not easily to the conclusion that the act is unconstitutional,” the appeals court said in today’s ruling.

The 88-page opinion, written by Judge Laurence H. Silberman and joined by Judge Stephen F. Williams, also said:

“Congressional desire for more effective administration of the criminal law when high governmental officials are implicated cannot justify departure from a constitutional plan carefully calibrated to balance the need for law enforcement against concerns for individual liberty.”

Ginsburg Dissents

Judge Ruth Bader Ginsburg dissented, finding that the law did not violate the separation-of-powers doctrine.

Defense attorneys for Deaver, who was found guilty last month of lying under oath about his lobbying activities, have said they would move to overturn his perjury conviction if the independent counsel law were struck down. The former deputy White House chief of staff is awaiting sentencing, now scheduled for Feb. 25, when he could receive a maximum 15-year prison term.

The Justice Department had joined in urging the court to overturn the law as unconstitutional. President Reagan expressed doubts about the constitutionality of the law when he recently signed a five-year extension of the legislation.

The court’s action today overturned the legal authority of independent counsel Alexia Morrison to investigate allegations that former Assistant Atty. Gen. Theodore Olson had given false congressional testimony to a House subcommittee during a 1983 dispute over the government’s toxic-waste cleanup program. Olson and two other former Justice Department officials had challenged Morrison’s authority to issue grand jury subpoenas, arguing that the independent counsel law under which she was appointed by a special court is unconstitutional.

Enacted After Watergate

The 1978 law was enacted in the wake of the Watergate scandal to ensure prosecution of government officials in the event the Justice Department had a conflict of interest.

Walsh and independent counsel James C. McKay, who is prosecuting former presidential aide Lyn C. Nofziger, accepted the parallel Justice Department appointments last year to protect their investigations from North’s constitutional challenge.

But Deaver’s prosecutor, independent counsel Whitney North Seymour Jr., joined Morrison in rejecting the appointments to be independent counsels within the Justice Department.