Lawrence Walsh is not winning any popularity contests lately. Nor is the federal independent counsel law, which he and his Iran-contra investigation have come to symbolize, and which will expire December 15 unless reenacted.
Senate Republican leader Robert Dole calls Walsh and his aides "assassins" for charging former secretary of Defense Caspar Weinberger with lying and concealing evidence to protect himself and President Reagan. Elliott Abrams, the former State Department official who pled guilty to two misdemeanor counts rather than risk a felony trial for misleading Congress, fantasizes (in print) about his wife murdering the prosecutors. Oliver North calls Walsh a "vindictive wretch."
And Ronald Reagan-who is virtually certain not to be indicted-called a Walsh aide who took his deposition in 1990 a "special persecutor."
Republicans in Congress trash the statute as an engine of oppression, with Attorney General William Barr hinting agreement. And some supporters of the statute worry that Walsh is giving it a bad name. They question his late hit against the 74-year-old Weinberger, long after Congress and the public have lost interest in Iran-contra. They roll their eyes at Walsh’s pursuit of an arresting but apparently unprovable conspiracy theory: that a cover-up of the U.S. and Reagan roles in the possibly illegal arms-for-hostages dealings with Iran in 1985 was cemented by an odd charade at a November 1986 meeting of the president and all his top aides.
Meanwhile, as Iran-contra winds down with the prosecutions of Weinberger and two former Central Intelligence Agency officials (one, Clair George, is on trial as this goes to press), "Iraqgate" is heating up. Amid bitter partisan divisions, Barr has spurned demands by House Democrats for an independent counsel to probe Bush administration deceptions about its prewar coddling of Saddam Hussein. The demands continue. Will we see another six years of investigations? Would we want to? Is this really the best way to keep the executive branch honest?
In fact, the Weinberger prosecution is a sad but responsible exercise of prosecutorial discretion. Overall, Walsh has performed admirably in the most difficult of circumstances. Yet the current independent counsel statute, passed in 1978, is both too tough and not tough enough.
Too tough because it creates incentives toward excess that may have led Walsh and some others to put too high a priority on leaving no stone unturned and no executive branch crime unpunished, however hard it may be to prove. And not tough enough because the independent counsel law rarely comes into play except in major public controversies, leaving most executive branch crime undetected.
There is a better way to police the executive branch (and Congress too), one that would remove the current statute’s most troublesome features while putting more fear of jail into officials contemplating crimes: A full-time public prosecutor’s office outside the Justice Department, as detailed below.
WALSH’S HUNT FOR ACOVER-UP
The Weinberger case exemplifies the dilemma faced by Walsh as his investigation has slogged on,-inching closer to the center of power amid public apathy and mounting criticism. It also shows why the starched, earnest, 80-year-old Walsh calls his long labor "extraordinarily unpleasant."
"You tend to like, as I do, or sympathize with the people you are assigned to investigate," explains Walsh. "By and large they were acting either because they thought they were supporting a desirable policy or because they were loyal to others…. And then realizing that it was contrary to the congressional view of things, they felt they had to conceal it from Congress."
So why prosecute them?
"It is important," Walsh responds, "to constantly impress both public officers and the public with the gravity of lying to Congress. If we honestly believe in a system of checks and balances, which is at the very center of the Constitution, that presupposes honest responses to formal inquiries."
Lying to Congress: That’s the problem at the heart of the debate over Walsh and the independent counsel law. People who consider deception a legitimate weapon of interbranch warfare have little use for Walsh. People who (like me) think of it as a serious and all too common crime against the constitutional system tend to look favorably on Walsh’s pursuit of otherwise sympathetic targets.
True, such men don’t deserve the living hell of a prosecution, especially in cases close to the line between lying and lawful nondisclosure or where prosecutors may mistake an innocent failure of recollection for a lie. But if officials can deceive Congress with impunity, how can the system work?
After the Iran-contra scandal broke in late 1986, Weinberger won praise as one of the few honorable dissenters during the disastrous, hypocritical arms-for-hostages dealings. And he was in no apparent jeopardy from Walsh-not, that is, until a tipster told Walsh’s office about two years ago that Weinberger had concealed handwritten notes containing important evidence from both congressional investigators and Walsh.
Weinberger at first insisted this was wrong. But later, 1,700 notebook pages from 1985 and 1986 alone turned up with his papers at the Library of Congress: barely legible diaries of his personal and business activities scrawled each day throughout his tenure. There were also some notes he had taken during key meetings.
Weinberger’s notes belie some points in his sworn and unsworn testimony to Congress, according to the indictment. They also shed new light on how active a role Reagan had played in the 1985 sales by Israel of U.S.-made arms to Iran, sales made over objections from Weinberger and others that they were illegal. And most intriguingly, the notes elucidate high-level efforts made in November 1986 and subsequently to conceal the U.S. and Reagan roles.
Administration officials were especially anxious to hide the true facts of the 1985 arms sales because they involved explicit trading of arms for hostages, a politically embarrassing betrayal of Reagan’s stated policy, and possible violations by the president of congressional notification requirements in the Arms Export Control Act and other laws.
Walsh’s previous prosecutions have focused on crimes committed by national security adviser Robert McFarlane, his successor John Poindexter, and Oliver North to cover up, among other things, the U.S. and Reagan roles in the 1985 arms sales. The Weinberger indictment suggests that Walsh now suspects that the cover-up may have involved the president and others at the very top of the administration, in particular Edwin Meese 3d, then the attorney general.
While Weinberger is not charged with conspiracy, Walsh said in his June 25 report to Congress that the case was part of his investigation’s "final phase," in which "we are attempting to determine whether officials at the highest level of government, acting individually or in concert, sought to obstruct official inquiries."
Walsh is focusing on Weinberger’s notes about a November 24, 1986, White House meeting attended by the president, then-vice-president Bush, Weinberger, Meese, then-White House chief of staff Donald Regan, Poindexter, secretary of State George Shultz, and CIA director William Casey. It came at a time of crisis, amid cascading reports of the arms-for-hostages dealings, false public denials by the president, and internal bickering.
In the words of the indictment, Meese, finishing up a hurried three-day inquiry into the arms sales, "told the group that the November 1985 Israeli Hawk missile shipment [to Iran] may have been illegal but that the president did not know about the shipment at the time." This was "incorrect," the indictment says, but nobody contradicted Meese-even when he "asked whether anyone knew of anything else that had not been revealed," and even though "several of those present, including [Weinberger], had contrary information."
The indictment does not say that Meese, or the curiously passive Reagan, (whose best defense has been an inability to grasp or recall what he was doing), had "contrary information." But they did, according to sources including Shultz, who testified that he had told Meese on November 22 that Reagan had said three days before that he had known of the Hawk shipment a year earlier.
Does this suggest that Meese was leading the president and all the top officials in the national security apparatus through a charade aimed at protecting Reagan? And could that be circumstantial evidence of a conspiracy that became criminal when members acted to further it by lying to or concealing evidence (like Weinberger’s notes) from official investigators? So Walsh seems to suspect. According to people close to the case, he sees a pattern emerging when Weinberger’s notes and other new evidence are added to the following facts that had come out earlier:
At meetings on November 10 and 12, 1986, Poindexter falsely told Reagan, Weinberger, and other top officials (some of whom knew better but kept silent), and congressional leaders, that the U.S. had had no role in the 1985 arms shipments. Reagan falsely said the same at a November 19, 1986, press conference.
On and before November 20, North, with McFarlane’s help, prepared false chronologies to hide the U.S. role in the arms sales. In a November 20 meeting with Meese, Casey, Poindexter, and others, North inserted a false statement that no one in the U.S. government had known of the Hawk shipment.
Meese’s November 21-24 inquiry, which came after the press had punched gaping holes in Reagan’s stories, has a very fishy smell. Meese has testified since then that, astonishingly, he never asked Reagan whether he had known about the 1985 arms sales, and took no notes of his interviews with Reagan, Regan, Casey, Poindexter, and Bush-of which Meese later claimed to recall little. At North’s 1989 trial, Meese testified that he was concerned the crisis could lead to impeachment, and his main goal was to protect the president. He was an exceedingly friendly witness for North, who had by then admitted lying to Meese.
On November 21-immediately after being alerted by Meese that his people would be coming over to review the National Security Council’s Iran files-Poindexter and North turned to shredding documents. Poindexter tore up the December 1985 finding in which Reagan had retroactively authorized CIA participation in the Hawk shipment as an explicit arms-for-hostages deal. North kept on shredding after being interviewed by Meese on November 23.
Also on November 21, Poindexter and Casey told lies to the congressional intelligence committees to conceal the U.S. role in the Hawk shipment.
On November 25, the day after the White House meeting, Meese (with Reagan at his side) falsely told the nation that the U.S. had had no role in the November 1985 Hawk shipment and that the president had not known of the shipment until February 1986. This came at Meese’s news conference disclosing the "diversion" of Iran arms-sales profits to the contras, which immediately (and, for the president, fortunately) eclipsed the uproar about the arms sales themselves.
The knives were out for anyone suspected of disloyalty to the president, especially Shultz, who had stubbornly resisted efforts to hide the …
Lawrence Walsh is not winning any popularity contests lately. Nor is the federal independent counsel law, which he and his Iran-contra investigation have come to symbolize, and which will expire December 15 unless reenacted.
Senate Republican leader Robert Dole calls Walsh and his aides "assassins" for charging former secretary of Defense Caspar Weinberger with lying and concealing evidence to protect himself and President Reagan. Elliott Abrams, the former State Department official who pled guilty to two misdemeanor counts rather than risk a felony trial for misleading Congress, fantasizes (in print) about his wife murdering the prosecutors. Oliver North calls Walsh a "vindictive wretch."
And Ronald Reagan-who is virtually certain not to be indicted-called a Walsh aide who took his deposition in 1990 a "special persecutor."
Republicans in Congress trash the statute as an engine of oppression, with Attorney General William Barr hinting agreement. And some supporters of the statute worry that Walsh is giving it a bad name. They question his late hit against the 74-year-old Weinberger, long after Congress and the public have lost interest in Iran-contra. They roll their eyes at Walsh’s pursuit of an arresting but apparently unprovable conspiracy theory: that a cover-up of the U.S. and Reagan roles in the possibly illegal arms-for-hostages dealings with Iran in 1985 was cemented by an odd charade at a November 1986 meeting of the president and all his top aides.
Meanwhile, as Iran-contra winds down with the prosecutions of Weinberger and two former Central Intelligence Agency officials (one, Clair George, is on trial as this goes to press), "Iraqgate" is heating up. Amid bitter partisan divisions, Barr has spurned demands by House Democrats for an independent counsel to probe Bush administration deceptions about its prewar coddling of Saddam Hussein. The demands continue. Will we see another six years of investigations? Would we want to? Is this really the best way to keep the executive branch honest?
In fact, the Weinberger prosecution is a sad but responsible exercise of prosecutorial discretion. Overall, Walsh has performed admirably in the most difficult of circumstances. Yet the current independent counsel statute, passed in 1978, is both too tough and not tough enough.
Too tough because it creates incentives toward excess that may have led Walsh and some others to put too high a priority on leaving no stone unturned and no executive branch crime unpunished, however hard it may be to prove. And not tough enough because the independent counsel law rarely comes into play except in major public controversies, leaving most executive branch crime undetected.
There is a better way to police the executive branch (and Congress too), one that would remove the current statute’s most troublesome features while putting more fear of jail into officials contemplating crimes: A full-time public prosecutor’s office outside the Justice Department, as detailed below.
WALSH’S HUNT FOR ACOVER-UP
The Weinberger case exemplifies the dilemma faced by Walsh as his investigation has slogged on,-inching closer to the center of power amid public apathy and mounting criticism. It also shows why the starched, earnest, 80-year-old Walsh calls his long labor "extraordinarily unpleasant."
"You tend to like, as I do, or sympathize with the people you are assigned to investigate," explains Walsh. "By and large they were acting either because they thought they were supporting a desirable policy or because they were loyal to others…. And then realizing that it was contrary to the congressional view of things, they felt they had to conceal it from Congress."
So why prosecute them?
"It is important," Walsh responds, "to constantly impress both public officers and the public with the gravity of lying to Congress. If we honestly believe in a system of checks and balances, which is at the very center of the Constitution, that presupposes honest responses to formal inquiries."
Lying to Congress: That’s the problem at the heart of the debate over Walsh and the independent counsel law. People who consider deception a legitimate weapon of interbranch warfare have little use for Walsh. People who (like me) think of it as a serious and all too common crime against the constitutional system tend to look favorably on Walsh’s pursuit of otherwise sympathetic targets.
True, such men don’t deserve the living hell of a prosecution, especially in cases close to the line between lying and lawful nondisclosure or where prosecutors may mistake an innocent failure of recollection for a lie. But if officials can deceive Congress with impunity, how can the system work?
After the Iran-contra scandal broke in late 1986, Weinberger won praise as one of the few honorable dissenters during the disastrous, hypocritical arms-for-hostages dealings. And he was in no apparent jeopardy from Walsh-not, that is, until a tipster told Walsh’s office about two years ago that Weinberger had concealed handwritten notes containing important evidence from both congressional investigators and Walsh.
Weinberger at first insisted this was wrong. But later, 1,700 notebook pages from 1985 and 1986 alone turned up with his papers at the Library of Congress: barely legible diaries of his personal and business activities scrawled each day throughout his tenure. There were also some notes he had taken during key meetings.
Weinberger’s notes belie some points in his sworn and unsworn testimony to Congress, according to the indictment. They also shed new light on how active a role Reagan had played in the 1985 sales by Israel of U.S.-made arms to Iran, sales made over objections from Weinberger and others that they were illegal. And most intriguingly, the notes elucidate high-level efforts made in November 1986 and subsequently to conceal the U.S. and Reagan roles.
Administration officials were especially anxious to hide the true facts of the 1985 arms sales because they involved explicit trading of arms for hostages, a politically embarrassing betrayal of Reagan’s stated policy, and possible violations by the president of congressional notification requirements in the Arms Export Control Act and other laws.
Walsh’s previous prosecutions have focused on crimes committed by national security adviser Robert McFarlane, his successor John Poindexter, and Oliver North to cover up, among other things, the U.S. and Reagan roles in the 1985 arms sales. The Weinberger indictment suggests that Walsh now suspects that the cover-up may have involved the president and others at the very top of the administration, in particular Edwin Meese 3d, then the attorney general.
While Weinberger is not charged with conspiracy, Walsh said in his June 25 report to Congress that the case was part of his investigation’s "final phase," in which "we are attempting to determine whether officials at the highest level of government, acting individually or in concert, sought to obstruct official inquiries."
Walsh is focusing on Weinberger’s notes about a November 24, 1986, White House meeting attended by the president, then-vice-president Bush, Weinberger, Meese, then-White House chief of staff Donald Regan, Poindexter, secretary of State George Shultz, and CIA director William Casey. It came at a time of crisis, amid cascading reports of the arms-for-hostages dealings, false public denials by the president, and internal bickering.
In the words of the indictment, Meese, finishing up a hurried three-day inquiry into the arms sales, "told the group that the November 1985 Israeli Hawk missile shipment [to Iran] may have been illegal but that the president did not know about the shipment at the time." This was "incorrect," the indictment says, but nobody contradicted Meese-even when he "asked whether anyone knew of anything else that had not been revealed," and even though "several of those present, including [Weinberger], had contrary information."
The indictment does not say that Meese, or the curiously passive Reagan, (whose best defense has been an inability to grasp or recall what he was doing), had "contrary information." But they did, according to sources including Shultz, who testified that he had told Meese on November 22 that Reagan had said three days before that he had known of the Hawk shipment a year earlier.
Does this suggest that Meese was leading the president and all the top officials in the national security apparatus through a charade aimed at protecting Reagan? And could that be circumstantial evidence of a conspiracy that became criminal when members acted to further it by lying to or concealing evidence (like Weinberger’s notes) from official investigators? So Walsh seems to suspect. According to people close to the case, he sees a pattern emerging when Weinberger’s notes and other new evidence are added to the following facts that had come out earlier:
At meetings on November 10 and 12, 1986, Poindexter falsely told Reagan, Weinberger, and other top officials (some of whom knew better but kept silent), and congressional leaders, that the U.S. had had no role in the 1985 arms shipments. Reagan falsely said the same at a November 19, 1986, press conference.
On and before November 20, North, with McFarlane’s help, prepared false chronologies to hide the U.S. role in the arms sales. In a November 20 meeting with Meese, Casey, Poindexter, and others, North inserted a false statement that no one in the U.S. government had known of the Hawk shipment.
Meese’s November 21-24 inquiry, which came after the press had punched gaping holes in Reagan’s stories, has a very fishy smell. Meese has testified since then that, astonishingly, he never asked Reagan whether he had known about the 1985 arms sales, and took no notes of his interviews with Reagan, Regan, Casey, Poindexter, and Bush-of which Meese later claimed to recall little. At North’s 1989 trial, Meese testified that he was concerned the crisis could lead to impeachment, and his main goal was to protect the president. He was an exceedingly friendly witness for North, who had by then admitted lying to Meese.
On November 21-immediately after being alerted by Meese that his people would be coming over to review the National Security Council’s Iran files-Poindexter and North turned to shredding documents. Poindexter tore up the December 1985 finding in which Reagan had retroactively authorized CIA participation in the Hawk shipment as an explicit arms-for-hostages deal. North kept on shredding after being interviewed by Meese on November 23.
Also on November 21, Poindexter and Casey told lies to the congressional intelligence committees to conceal the U.S. role in the Hawk shipment.
On November 25, the day after the White House meeting, Meese (with Reagan at his side) falsely told the nation that the U.S. had had no role in the November 1985 Hawk shipment and that the president had not known of the shipment until February 1986. This came at Meese’s news conference disclosing the "diversion" of Iran arms-sales profits to the contras, which immediately (and, for the president, fortunately) eclipsed the uproar about the arms sales themselves.
The knives were out for anyone suspected of disloyalty to the president, especially Shultz, who had stubbornly resisted efforts to hide the facts and bluntly told Reagan that the story he was putting out was wrong. The Weinberger indictment’s most entertaining paragraph summarizes his notes of what Prince Bandar bin Sultan, the Saudi Arabian ambassador, told him on November 23: Nancy Reagan had said Shultz had been disloyal and "should be replaced"; the prince suggested Weinberger as a replacement, and "Mrs. Reagan had commented favorably."
Look at it all with a suspicious eye, and the outlines of a high-level cover-up conspiracy tantalize. Then look for proof that could stand up in court, and the picture begins to dissolve like a mirage.
Can anybody really believe, lawyers close to the case say, that the nation’s top officials would hatch a cover-up at a big meeting, signal their intentions so indirectly, and proceed despite Shultz’s apparent resistance and threats by his State Department legal adviser, Abraham Sofaer (now managing partner of Hughes, Hubbard & Reed’s Washington office), to resign noisily if a false account were put out?
These events unfolded amidst enormous internal confusion and intrigue. Was Meese orchestrating a conspiracy to conceal Reagan’s role in the 1985 arms sales? Or was he just a willing dupe of North and Poindexter? Reagan’s own recollections meandered wildly. And administration lawyers soon concluded that the arms sales had been legal after all (a point still in dispute today). Besides, any attempt at a cover-up soon unraveled, and the sky did not fall. Although the extent of Reagan’s role was obscured, Shultz told Congress on December 16, 1986, that Reagan had known of the 1985 arms sales. The presidentially appointed Tower Commission so concluded in 1987, as did the congressional Iran-contra committee, which said laws were violated but did not suggest that this was an impeachable offense.
Walsh "has an extra detail or two that we did not know," says Arthur Liman of Paul, Weiss, Rifkind, Wharton & Garrison, who was the Senate Iran-contra committee’s chief counsel, but "there is no John Dean in the Iran-contra investigation, there are no Nixon tape recordings."
So why is Walsh still at it? Is he a sucker for unprovable conspiracy theories? Did he really think, when he pressed Weinberger to tell all in exchange for a misdemeanor, no-jail plea bargain, that this proud and stubborn loyalist would turn on Reagan? Is he about to unveil a smoking gun?
More likely Walsh is simply determined to pursue evidence of concealment and lying to Congress as high as it leads. Weinberger’s five-count indictment says he obstructed justice by concealing his notes from the Iran-contra committee while professing to honor its document requests; lied to the committee’s staff in a June 17, 1987, deposition by falsely disclaiming knowledge of Saudi funding of the contras; perjured himself twice before the committee on July 31, 1987, by saying no when asked whether he had known that the November 1985 Hawk shipment was to take place and that Israel wanted the U.S. to replenish the arms it sent to Iran; and falsely told interviewers from Walsh’s office on October 10, 1990, that he rarely took notes and had turned over any he had.
Weinberger’s lawyers, Robert Bennett and Carl Rauh of the Washington office of Skadden, Arps, Slate, Meagher & Flom, will attack the cryptic notes as no proof of the charges of lying to Congress and perjury. They will assert that Walsh’s case is flawed by the fallacious assumption that a busy Cabinet officer never forgets anything he ever heard.
They will also contend that Weinberger did not think of his habitual jottings as the sort of Iran-contra records being sought. And they will stress that Weinberger neither shredded his notes nor hid them in his basement, but rather deposited them with 370,000 other documents in the Library of Congress, where he invited Walsh’s people to poke around. Is this the way a criminal would cover his tracks?
The hard question for Walsh was not whether a case could be made against Weinberger, but whether it should be. Here was a 74-year-old man who had served his country honorably for many years, had stoutly resisted the arms-for-hostages madness, and whose crimes, if any, seemed motivated largely by loyalty to his president.
Weinberger’s effort to head off indictment was supported by chairman Daniel Inouye (D-Hawaii) and vice-chairman Warren Rudman (R-New Hampshire) of the Senate Iran-contra committee, which was a prime victim of Weinberger’s crimes, if crimes they were. In an April 29 letter solicited by Bennett, the two senators said Weinberger had the "highest integrity and honor," that it was "inconceivable to us that he would intentionally mislead or lie to Congress."
But Walsh was convinced that Weinberger had lied, and that a no-indict decision based on delay would only reward obstruction. Walsh has said he wanted badly to settle the case with a misdemeanor plea and a pledge of "truthful cooperation"-not necessarily pointing a finger at Reagan or anyone else. But Weinberger said he would not plead because he did nothing wrong.
What else was Walsh to do? Say in his final report that he had decided to overlook evidence that a former Defense secretary had concealed notes and lied to Congress and prosecutors? It’s easier to regret that this case had to be brought than to fault Walsh for bringing it.
WALSH’S PERFORMANCE
It’s also easier to complain that Walsh has spent $32 million and will have been at it six years as of December 19 than to pinpoint where he went wrong or should have stopped.
Walsh’s critics fall into two categories. The more savage ones, led by the Wall Street Journal editorial page, portray the Republican former deputy attorney general and federal district judge (appointed by President Eisenhower to each post) and American Bar Association president as a tool of the Democratic Congress, looking to criminalize policy differences and cooking up pretexts to prosecute innocent people. Some say that Walsh has become a semiretired figurehead, manipulated by young prosecutors hot to make names for themselves. The focus here shifts to Craig Gillen, the 40-year-old former assistant U.S. attorney from Georgia to whom Walsh has delegated the day-to-day work while Walsh spends much of his time at home in Oklahoma writing his final report.
The more serious critics credit Walsh’s good faith but say he has just overdone it: He waited too long to indict North and Poindexter, using the mega-case approach of the civil litigator he was at Davis Polk & Wardwell (with a particular reputation for lavish spending) to bring an unmanageably complex case; he burned up time and resources trying to prove conspiracies rather than focusing on discrete crimes; he pressed on and on, with new generations of assistants going back over the same ground.
A few former Walsh aides privately agree with some of these criticisms, and add that delays were aggravated by Walsh’s tendency to defer tough decisions while letting staff lawyers "slug it out endlessly," as one of the aides puts it. In hindsight, it does seem that Walsh should have brought a simpler case against North, Poindexter, and others in 1987-before Congress forced them to testify under grants of immunity. That was the course advocated in raging internal debates by aides including John Keker, the San Francisco lawyer who later tried the North case only to see his convictions voided by the D.C. Circuit.
But Walsh’s gamble on waiting to amass more evidence seems reasonable in light of what he knew at the time. A quick, clean prosecution of North based on the easily obtainable evidence, Walsh says in an interview, would have been "a formula for being sucked in by the fall guy." And an effort to preempt the congressional grant of immunity would have enraged Congress and thwarted what then seemed to be an urgent public interest in getting the facts out fast.
Walsh says he originally "thought I could do it in two years." That was unrealistic, given the enormous scope of his mandate: investigating highly clandestine activities reaching into the NSC, the CIA, the White House, the State and Defense Departments, with evidence hidden all over the world, hostile witnesses, and "the whole force of the government against us."
The obstacles thrown up by others were formidable: Congress compelling immunized testimony from Walsh’s main targets, which forced him and his staff to shield themselves for years from events the rest of the world had watched on television; the intelligence agencies and the Bush Justice Department refusing to declassify crucial evidence, thereby killing the broad conspiracy counts against North and Poindexter and the entire case against former CIA official Joseph Fernandez; the courts severing the trials of North, Poindexter, and their two codefendants, then reversing the North and Poindexter convictions-each time with two Reagan judges in the majority and a Carter judge in dissent.
Despite all this, Walsh has won guilty pleas from McFarlane and six others, and jury convictions of North, Poindexter-whose appellate victories don’t negate the evidence of guilt-and former CIA official Thomas Clines. Walsh says he kept going after the Poindexter trial in April 1990 because he felt obliged to compel immunized testimony from Poindexter and North about "those who supported and supervised them." And new evidence, like Weinberger’s notes and some kept by aides to Shultz, kept turning up years after it should have.
Running down these leads, says Walsh, was "necessary to drive home the lesson of deterrence to a very select group who are likely to be confronted with difficulties in telling Congress about national security activities."
Lawyers who have dealt with Walsh say he seems convinced that Reagan has so far gotten away with letting underlings take the rap for illegal conduct done with his consent or for his sake. But Walsh knows he lacks solid proof of any crime by Reagan, who was assured in late July that he was not under investigation.
Walsh seems driven by a burning sense of obligation to finish his job, even if others shirked theirs. And while he leaves most of the investigative work to Gillen and others, he scoffs at charges that he has become a rubber stamp. The 90 minutes I spent with him recently left no doubt as to his intellectual vigor or sense of command.
THE INDEPENDENT COUNSEL LAW’S PROBLEMS
Walsh’s generally creditable performance still leaves a nagging concern that too much of a good thing may be the result when an exhaustive approach like his is combined with a statutory grant of unlimited time and money to investigate one case.
"I do have a sense that the Walsh experience provides a warning of the institutional attributes that can manifest themselves over time," says a lawyer familiar with the investigation. "I’m concerned about the compulsion to continue to look. Ideally, this should be an in-and-out operation. But it’s turned into a very substantial bureaucracy of its own, with strong institutional drives and a passionate sense of unfairness and lack of support from courts, Congress, and executive agencies that feeds on itself."
As defensible as Walsh’s decisions may seem when considered individually, the cumulative effect gives pause even to some admiring former assistants. And some supporters of the independent counsel statute are wondering whether it should be amended to include limits as to time and budget.
An independent counsel with a mandate to get to the bottom of one case-and only one-may have an incentive to dig deeper and longer than would any prosecutor with competing claims on his or her time. And the statutory protection from removal is a mixed blessing; while ensuring independence, it creates a lack of accountability that is worrisome given the potentially oppressive nature of the prosecutorial power.
"A one-case lawyer with nobody to question what is done in the investigation is a dangerous person," says Jacob Stein of Washington, D.C.’s Stein, Mitchell & Mezines. Stein both has been an independent counsel (investigating Meese) and has represented a former assistant attorney general (Carol Dinkins) in an investigation by independent counsel Alexia Morrison. While refusing to comment on Walsh specifically, Stein says that "once these investigations go on over six months, they feed on themselves and start investigating what happened in the investigation." Prolonged investigation not only means cost and delay but can also create a harsher standard of justice for the targets of independent counsel, who may come under scrutiny more sustained and merciless (and legal fees more crushing) than are faced by members of Congress, corporate chieftains, or ordinary citizens. "How frightening it must be to have your own independent counsel appointed with nothing else to do but investigate you," Justice Antonin Scalia said in his 1988 dissent in Morrison v. Olson, the7-to-l Supreme Court decision upholding the independent counsel law’s constitutionality. An independent counsel may be tempted to pursue people whose alleged crimes are so close to the line, hard to prove, or harmless that a regular prosecutor might let them go.
Given the harshness and vagueness of the criminal laws, the most important protection of individual liberty may be the scarcity of prosecutors. The high ratio of crimes to available gumshoes creates a healthy incentive to go after the worst criminals and let lesser sins go unpunished. The independent counsel law tends to remove this incentive.
Another danger is ambition. Craig Gillen, for example, was an obscure assistant U.S. attorney before coming to work for Walsh; now that he has spearheaded the indictment of Weinberger, he’s on his way to fame. Colleagues say Gillen would not let this sway his advice on whether to indict; some targets and their lawyers claim otherwise. Nobody-probably not even Gillen-really knows.
While any prosecutor can be tempted to build his or her career by bagging big fish, "if you are given a fishing license which has the name of the fish on it and you don’t come back with that fish, you’ve failed," says Theodore Olson of Gibson, Dunn & Crutcher, who represents Reagan in the Walsh investigation. Those seeking jobs in an office like Walsh’s are focused on the biggest fish of all, and by natural self-selection may tend to be more ambitious than most prosecutors, and more hostile to the incumbent administration.
Defenders of the independent counsel law say that such theoretical dangers have not been borne out in practice, and are counterbalanced by factors such as intense public scrutiny and the high quality of those who have served as independent counsel and their desires to get back to their interrupted careers or private lives. The first five independent counsel sought no indictments; the first indictment under the 1978 statute came in 1987.
But the investigations have been longer in recent years, and the indictments more numerous-14 in Walsh’s investigation alone. And even if no independent counsel had ever abused his powers, the statute, long touted by supporters as necessary to avoid the appearance of sweetheart justice for the president’s men and women, has an appearance problem of its own: a spreading, if erroneous, belief that the statute denies equal justice to the president’s men and women.
The statute also invites partisan political warfare over the attorney general’s role in deciding when to seek appointment of an independent counsel. Witness the overwhelming Democratic support for, and Republican opposition to, House Judiciary Committee chairman Jack Brooks’s demand that Attorney General Barr seek an "Iraqgate" independent counsel.
The law assigns to the attorney general-as it probably must, to avoid an unconstitutional transfer of executive power to the judiciary-the judicially unreviewable function of deciding which allegations of high-level criminality are serious enough to require an independent counsel. This creates a "hair trigger" dilemma that no amount of fine tuning can eliminate.
As originally adopted in 1978, the statute effectively required an independent counsel for any but the most frivolous of allegations against top officials. This led to investigations into dubious allegations of cocaine use by Carter administration officials Hamilton Jordan and Timothy Kraft-cases that would not have been investigated at all had they been ordinary citizens.
So Congress amended the law in 1982 to give the attorney general more discretion to weigh the credibility of accusers and dismiss weak allegations. But after Meese deep-sixed some politically charged allegations against friends and close aides, Congress amended the law again in 1987, curbing the attorney general’s discretion to dismiss allegations based on lack of criminal intent. This recreated the hair trigger problem.
There is also reason to doubt how well the independent counsel statute serves its goal of creating a credible threat of swift and certain punishment to deter executive branch crimes. Independent counsel rarely come into play except when cases arise from big public controversies. And any incentive that career Justice Department prosecutors might have to hunt for hidden evidence of high-level crimes may be deadened by their duty under the statute to hand off whatever they find to someone else. Why waste time starting things you can’t finish?
The effectiveness of the current statute is also limited by the delay and inefficiency inherent in having to create and staff a whole new office to take over an investigation started in the Justice Department. In addition, it’s hard to find first-rate lawyers who can afford to drop their regular practices for months or years. So Walsh has relied in part on experienced lawyers who could work only for a few months or part time, and younger lawyers without much seasoning. He is now on his third generation of prosecutors; such turnover entails serious problems of loss of institutional memory, difficulty in getting back up to speed, and going back over the same ground repeatedly.
WHY PERMANENT WOULD BE BETTER
These problems arc not so grave (notwithstanding strident shrieks from conservatives) that they would call for letting the independent counsel law lapse if it were the only alternative to the old system of trusting the attorney general to police the executive branch.
The public has no confidence in self-policing by the administration in power, and for good reason. Few if any attorneys general (certainly not Meese) have been vigorous in pursuing evidence of lying to Congress and other high-level crimes; some have committed such crimes themselves or covered up those of their cronies.
But the current statute is not the only alternative. The best solution would be an independent-minded public prosecutor with a full-time professional staff and a broad enough jurisdiction-encompassing crimes in the executive branch, Congress, and perhaps the judiciary too-to attract first-rate people and keep them busy.
Such an office would avoid the incentives toward especially harsh scrutiny of executive branch targets that are associated with choosing a new independent counsel for each case. With a large number of possible cases and investigations competing for its attention at any given time, a public prosecutor’s office would function more like an ordinary U.S. attorney’s office.
It would also foster the appearance of- interbranch equity, by subjecting members of Congress to the same procedures and scrutiny as executive branch officials-while shielding Congress from politically charged Justice Department fishing expeditions. If a public prosecutor’s office had existed when Iran-contra broke, the investigation would have gotten a faster start. It also might have had the institutional background and expertise to proceed on more fronts at once than could Walsh’s hastily assembled staff. It’s possible that evidence like Weinberger’s notes would have been found and dealt with in a more timely fashion. Or perhaps they would never have been found, because the public prosecutor might have had more pressing things to do by 1990 than go back over the same Iran-contra ground again. And that wouldn’t have been all bad. Once he had the notes, Walsh could hardly ignore them. But the country might be better served by a system likely to bring such evidence to light either sooner or not at all.
A permanent public prosecutor-free to pursue any leads that come his or her way without waiting for referrals from the attorney general-might also be more effective in keeping the executive branch honest.
The trickiest question raised by proposals for some kind of public prosecutor’s office (which others have made over the years) has been how to marry independence with accountability.
Here’s how: Make the public prosecutor independent of the Justice Department, to avoid the institutional and personal pressures that sow reluctance to rock the incumbent administration’s boat. Give the office the prominence and prestige to attract apolitical lawyers of stature who will not brook improper interference from the president or anyone else. But make the public prosecutor ultimately accountable to-by making him or her removable at the discretion of-the president.
The public prosecutor should be nominated by the president, subject to Senate confirmation. Judicial appointment and removal, or legal protection from presidential removal, might well be unconstitutional given the office’s broad powers.
To be sure, this setup would be vulnerable to a repetition of the event that led to the independent counsel law in the first place: President Nixon’s firing of Archibald Cox. Yet no president will lightly risk the kind of political firestorm that then ensued, dooming the Nixon presidency. Political safeguards, including congressional oversight and public opinion, should be augmented by a presumptive statutory term of five years. All this would serve notice that any president who fires a public prosecutor for suspect reasons will pay a heavy political price.
Each public prosecutor should be limited to a single term of office, starting toward the end of the appointing president’s term, lest a lust for reappointment or a sense of gratitude inspire subservience.
This proposal depends on the optimistic assumption that the public prosecutors would be first-rate professionals, not hacks. Would the president nominate such people, or the Senate have the backbone to insist he do so? Such displays as the confirmation of the manifestly underqualified Justice Clarence Thomas last year are not encouraging.
But the Senate’s backbone, and the president’s incentive to choose a lawyer of quality and leave him or her alone, could be fortified by keeping something like the current independent counsel law as a backup system. It would kick in whenever the position of public prosecutor becomes vacant and the Senate has not confirmed a successor.
This would also call the bluff of executive branch critics of the current statute. You don’t like independent counsel? Fine. Pick a prosecutor yourself. But pick a good one, or we’ll stick with the system we have.