A Declaration on Independents

The Reagan Administration, which has been beset by charges of corruption, finally got some good news from the courts last week. In a 2-to-1 decision, the Washington, D.C., appeals court declared unconstitutional the method used to appoint independent counsel and the limits placed on the President's power to remove them at will. The decision puts a large question mark over the conviction last month of former White House Aide Michael Deaver.

The case that spurred the court ruling was not Deaver's but a far less visible one. Former Assistant Attorney General Theodore B. Olson has been under investigation for some 20 months for allegedly giving false testimony to Congress in 1983. Olson and two colleagues counterattacked by challenging the provisions of the 1978 Ethics in Government Act that provided authority to Independent Counsel Alexia Morrison.

To avoid having the Executive Branch investigate itself, the law requires independent counsel to be chosen by a panel of federal judges. That transferred Executive power to the judiciary, Olson argued, which violates the Constitution's separation of powers. The appeals court majority agreed, overturning a district court's earlier ruling.

The court's ruling is unlikely to cause serious problems for the Iran- contra probe headed by Lawrence E. Walsh or for Independent Counsel James McKay's prosecution of White House Aide Lyn Nofziger. Last year both prosecutors accepted backup appointments from the Justice Department. Prosecutor Morrison refused similar protection. Earlier last week the Supreme Court put to rest for now questions about the validity of such "parallel appointments" by leaving intact a lower-court decision that turned aside a challenge brought by Lieut. Colonel Oliver North.

Deaver's prosecutor, Whitney North Seymour Jr., also refused the parallel appointment. Noting that last week's decision had invalidated the court appointment that is Seymour's sole source of authority, Deaver's lawyers quickly filed a motion to vacate the jury verdict and throw out the charges against their client, who faces a possible 15-year prison sentence. For Deaver, says Philip Lacovara, former counsel to the Watergate special prosecutor, the court's decision is like the "arrival of the 7th Cavalry." But Custer's 7th Cavalry was wiped out at Little Bighorn, and whether Deaver will get to ride off in freedom remains to be seen: the Supreme Court is likely to review the ruling this term.