Reagan V. Walsh

By Morley, Jefferson | The Nation, April 23, 1988 | Go to article overview

Reagan V. Walsh


Morley, Jefferson, The Nation


The war on special prosecutor Lawrence Walsh is a two-front affair, one legal, one political. The legal battle is over the constitutionality of the independent counsel's office. The political battle is over the idea of granting presidential pardons to Lieut. Col. Oliver North and Rear Adm. John Poindexter. While the pardon speculation draws most of the public attention, the legal proceedings are more important. On April 26, the Supreme Court will hear arguments on the constitutionality of the independent counsel law.

The case depends on how the Court interprets the doctrine of separation of powers embodied in Article 11 of the Constitution, which concerns the appointive powers of the President and Congress, and Article III, which deals with the judiciary. The points of law get pretty arcane, but it is safe to say that the Administration's hopes depend on the Court's willingness to engage in judicial activism.

The Supreme Court case is the final round of the legislative-executive power struggle that began in 1982 over the conduct of the Environmental Protection Agency. When two House committees attempted to probe allegations of impropriety in the E.P.A., the Administration claimed executive privilege to withhold relevant documents. Under increasing pressure from Congress and the press, it backed down and turned over the documents. Later, the House Judiciary Committee learned that still more documents had been withheld.

The Judiciary Committee then demanded that an independent counsel investigate the Justice Department and White House officials who allegedly had run the cover-up. Attorney General Edwin Meese 3d agreed to request a special prosecutor in the case of former Assistant Attorney General Theodore Olson. But when Olson challenged the constitutional authority of the prosecutor, Alexia Morrison, the Administration supported him. Olson lost the first round in court.

Enter Laurence Silberman. He is the Federal Appeals Court judge who, in January 1988, delighted the Administration by ruling the independent counsel law unconstitutional. Silberman, a former adviser to the Republican National Committee, also served as a Reagan foreign policy adviser during the 1980 presidential campaign. …

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