A federal appellate court ruled yesterday that lobbyist Michael K. Deaver must stand trial on perjury charges, refusing to accept his appeal of a pretrial ruling in the case.
The U.S. Court of Appeals ruled that Deaver could not appeal the trial judge's denial of his motion, which asked that the indictment be dismissed on the ground that independent counsel Whitney North Seymour Jr. had no authority to prosecute the case.
Lawyers for Deaver, a former top aide to President Reagan, said before yesterday's decision that they would take any adverse ruling to Chief Justice William H. Rehnquist. Consideration of such an appeal by Rehnquist or the full Supreme Court could further delay the start of a trial.
Deaver had sought to have the appellate court rule on his challenge to the constitutionality of the Ethics in Government Act, which provides for judicial appointment of independent counsels.
But the court refused to accept Deaver's appeal of U.S. District Court Judge Thomas Penfield Jackson's decision, saying the lower court's ruling "is not a final order, and therefore is unappealable."
"We find no reason to make an exception in this case," the court said in the order for Judges Harry Edwards, James Buckley and Stephen Williams.
Deaver, who resigned as deputy White House chief of staff in 1985, is charged with five counts of lying to a House subcommittee and a federal grand jury that investigated his lobbying business for possible ethics violations.
The trial had orginally been scheduled to begin June 8, but Deaver's appeal forced a postponement while the issue was being considered in the appeals court.
Normally, pretrial rulings by judges are not appealable. But Deaver, arguing the serious nature of his constitutional challenge, contended that the court should make an exception to this procedural rule.
The appeals court also rejected Deaver's request that it issue a so-called mandamus order to Jackson, directing him to reconsider his pretrial ruling.
"Mandamus is an extraordinary remedy to be invoked only in drastic circumstances," the court said. "There are no such extraordinary circumstances presented here."
The ruling marks the second time in a week that the appeals court has sidestepped constitutional challenges to the ethics law.
Last week, it sent a similar challenge by Marine Lt. Col. Oliver L. North back to U.S. District Court Judge Aubrey E. Robinson Jr. with instructions to rule on the case without deciding constitutional issues.
The former National Security Council aide is challenging the authority of independent counsel Lawrence E. Walsh to force him to give a sample of his handwriting to the grand jury investigating the Iran-contra affair.