WASHINGTON — Washington
THE SUPREME Court's insistence that Iran-contra prosecutor Lawrence Walsh prove that Oliver North was not unfairly convicted points up the dilemma faced by the legislative and executive branches in pursuit of what each sees as its legitimate function in the uncovering and punishing of wrongdoing.
Congress, which investigated the whole affair first amid a colossal glare of publicity, had a particular mandate in attempting to determine whether its explicit order that the government stop financing the contras in Nicaragua or raise money from others for the same purpose was violated by the executive branch. Furthermore, it had the clear responsibility of trying to establish whether Congress had been lied to in the process.
The special prosecutor, delving into the case after grand jury indictments against North and other principals, for his part had his own specific mandate -- to bring to justice any of them who had committed criminal acts.
Those two functions inevitably came into conflict when Congress, in its urgency to satisfy its own mandate, determined that it was necessary to grant immunity against self-incrimination to North and other players in the gambit in order to ascertain the truth, or to try.
That decision complicated the ability of the special prosecutor to do his job. Not only could Walsh not use in building his case any testimony given under the grant of immunity; he was obliged to take extraordinary measures to guard against reliance on it by other witnesses.
In North's case specifically, Walsh after meticulous and exhaustive preparation won three counts of guilty, only to have one of them thrown out and the other two put on hold by a federal appeals court concerned that evidence used to convict North might have been covered by the grant of immunity. The Supreme Court has now said Walsh must prove in court that none of the witnesses who testified before the grand jury or at North's trial were influenced by his 1987 testimony, televised nationally, before congressional investigators.
Walsh took great pains in gathering his evidence to shield his own investigatory staff from the congressional hearings, but the appeals court said that witnesses may have been tainted in their own testimony by having heard and watched North testify before House and Senate committees. Walsh is now required to interrogate his witnesses painstakingly in hearings to establish that they were not affected in what they said by North's dramatic television appearances. He says he is determined to do so, even as North's lawyer calls continuing the matter "unwise and outrageous."
At the heart of the whole business is the question of which is more important for the public -- the light of public exposure on a major case of governmental duplicity and executive-branch abuse of power, or the apprehension and punishment of the alleged culprits.
It can be argued that the shining of the public spotlight on North and other players, and on the whole sordid deal of swapping arms for hostages and then siphoning off profits to defy a congressional edict on contra resupply, did not have much impact on voters.
On the judicial side, there were some convictions of lesser players but the chances remain good that North's remaining two convictions, one for aiding and abetting obstruction of Congress and the other for taking an illegal payment for a home security system, will also be thrown out on grounds they were achieved with tainted testimony protected by the immunity grant.
North's immediate boss, Reagan national security adviser John Poindexter, convicted of five counts of obstructing and lying to Congress, likely will have those charges against him thrown out too if Walsh fails to satisfy the appellate court's very strict test of having won a legitimate case against North.
When such abuses of power come to light, there is a natural clamor, within Congress and outside it, that the facts be determined and laid out as soon as possible. But there can be a large price to be paid in terms of the dispensing of justice, as the case of Oliver North demonstrates.