WASHINGTON -- A federal appeals court turned aside Michael Deaver's challenge to the independent counsel law Tuesday, clearing the way for the former White House aide's indictment on perjury charges.
The U.S. Circuit Court of Appeals for the District of Columbia, expressing 'no opinion on the merits' of Deaver's constitutional claims, declined to extend an order blocking independent counsel Whitney North Seymour's probe of Deaver's lobbying activities.
Deaver promptly appealed to the Supreme Court, telling Chief Justice William Rehnquist he would suffer 'irreparable injury' unless Seymour is blocked from seeking an indictment.
'Unless stayed by this court, Mr. Seymour will obtain an indictment against Mr. Deaver at the first available opportunity despite his patent lack of authority to do so,' his attorneys said.
A resolution of the 'issue of the constitutionality of the independent counsel statute ... by this court is important to assure the proper enforcement of the federal government's criminal laws in a manner consistent with the United States Constitution,' they said.
A spokewoman gave no indication on when Rehnquist may act.
Earlier, the appeals panel ruled that Deaver's 'case constitutes an impermissible pre-emptive civil challenge to a criminal proceeding,' siding with Seymour's contention the challenge was premature because Deaver had yet to be charged with criminal wrongdoing.
The appeals court panel of three judges ordered that Deaver's request for an emergency stay be denied, the five-day court order blocking Seymour from acting be immediately dissolved and returned the case to the U.S. District Court 'with directions to dismiss the complaint.'
At the same time, the panel said, 'We express no opinion on the merits of appellant's (Deaver's) constitutional arguments.'
The appeals panel turned back a move by U.S. District Judge Thomas Jackson, who last week refused to extend his court-ordered delay of Seymour's probe, but passed the constitutional question to the appeals level.
Deaver, a longtime confidant of President Reagan who was deputy White House chief of staff, has challenged the constitutionality of the 1978 law that allowed Seymour to be appointed to investigate his private lobbying activities since 1985.
Seymour, who told Jackson in open court Feb. 25 that he was prepared to seek Deaver's indictment that day on four counts of perjury, declined to comment on the ruling, and it was unclear whether grand jury proceedings would commence as previously scheduled on Wednesday morning.
In a 21-page brief filed with the appeals panel, Deaver's lawyers argued Monday that although a lower court denied his motion to stop Seymour from seeking his indictment on perjury charges, it expressly sent the constitutional question to the appeals panel.
Delaying action on the question, the lawyers said, 'would serve no legitimate interests, would irremediably harm Mr. Deaver and would cast a lengthening shadow over the legality and propriety of numerous independent counsel investigations currently under way.'
The case could affect others, notably the probe into the Iran arms-Contra aid scandal, because Deaver's challenge is the same argued by Lt. Col. Oliver North, the ex-White House aide trying to stop the criminal investigation into the affair.
Both men contend the 1978 Ethics in Government Act usurps the constitutional power of prosecution reserved for the executive branch because it provides for independent counsels to be appointed under the judiciary branch.
Lawrence Walsh, probing the Iran-Contra case, and James McKay, investigating former White House aide Lyn Nofziger's private lobbying activities, have accepted parallel Justice Department jobs from Attorney General Edwin Meese in a move to sidestep the constitutional question. Seymour and another special prosecutor, Alexia Morrison, so far have rejected the dual positions.
North, who also challenged Walsh on the dual appointment, had two lawsuits rejected last week by a federal judge on grounds his arguments were premature because he has not been charged with any wrongdoing.
Seymour also argued the appeals court's interference on constitutional grounds would be premature because Deaver had not been indicted.
'Indeed,' Seymour said, 'if this court were to hear (Deaver's) claim, it ... is no exaggeration to say that the floodgates would be opened to piecemeal appellate review.'
