Ethics, Politics, and the Independent Counsel.

Ethics, Politics, and the Independent Counsel

* I was in Chicago visiting my brother, a printer, when we heard the news that Nixon had fired Watergate special prosecutor Archibald Cox. My brother thought of his colleagues working the weekend shift to get out the latest issue of Time. He shook his head. "Stop the presses," he sighed, and I thought, They really say that.

But, Mr. Nixon, you shouldn't have done it. As Terry Eastland writes in his illuminating Ethics, Politics, and the Independent Counsel (National Legal Center for the Public Interest, 206 pp., $10.95), "More than any other event, Nixon's firing of . . . Cox created [the] perception [that the executive branch could not investigate itself] and led to the introduction of legislative proposals that were the earliest forerunners of Title VI, the special-prosecutor law enacted in 1978 as part of the "Ethics in Government Act."

At the time of the "Saturday Night Massacre," just about everybody thought that special prosecutors could be appointed only by either the President or the Attorney General. After all, law enforcemtn is an executive responsibility. But Nixon's actions passed the ring of power to Congress, where not all members are respectful of constitutional principle--when, that is, they are aware of it at all. It took five years, but Congress, against the logic of Article II, authorized court appointment of special prosecutors, and severely limited (effectively eliminated) presidential control of them. It was bad news for the separation of powers, but let's count our blessings. Sam Ervin was proposing (to no result) that the Justice Department be separated from, become "independent" of, the executive branch. Imagine deciding--extra-constitutionally-to create a fourth power to balance!

"Title VI was remarkable in two major respects," Eastland writes. "For the first time ever, it was now possible for federal criminal-law-enforcement authority to be given to someone who was not ultimately responsible to the President or one of his appointees. And, for the first time since Reconstruction, the President would not have ultimate authority to remove such an officer." Even with subsequent amendments, and despite the Rehnquist Court's affirmation of the statute last year, eastland believes it is unconstitutional. Established by Congress to be a check on the abuse of executive power, the independent counsel has shown itself to be a threat to the proper use of executive power. The cure is more deadly than the disease.

Eastland has written a compact, graceful study of a critical contemporary sub-plot in the long drama of American constitutional law.