Lessons of the North case

Jon Margolis

September 26, 1991|By Jon Margolis

THE LEGAL triumph of Oliver North contains several ironies and at least one lesson. The ironies are new. The lesson is not, but maybe we can get it right this time.

The simplest irony is that North was cleared by what so many of his supporters would in other contexts dismiss as a "legal technicality."

There is no less doubt that North lied to Congress and destroyed evidence, and that both acts were against the law, than there is that Clarence Gideon broke into a Florida pool hall or that Ernesto Miranda confessed to kidnapping and rape. Both were freed not because they were innocent but because their guilt was established in an unconstitutional manner. So was North.

Too often, whether one describes this as a legal technicality or a constitutional protection depends on one's prejudices. Liberals tend to be civil libertarians until someone they like is the victim of a crime, at which point they demand revenge, constitutional niceties be hanged. Conservatives such as North and his friends are law-and-order hard-liners until one of their own is accused, at which point they discover civil liberties.

Considering that no claim he makes can be taken at face value, there is a less amusing irony in North's claim that he was now "totally exonerated." The secret of North's appeal, limited though it is, rests on the image he projects of the earnest, unsophisticated small-town kid, with all the homey virtues.

But chief among those virtues are not taking yourself too seriously and not lying, two qualities North lacks. It is neither possible nor necessary for anyone to know whether he deceived himself before coming forth with his extraordinary falsehoods, but the record is clear that he lied not only to Congress but also to his fellow conspirators. Even when the game was up, he lied to the president's agent, the attorney general, by claiming that the money Iran paid for American weapons went to the contras by way of Israel. As North well knew, it did not. It went directly from Iran to the bank account controlled by North's friends Richard Secord and Albert Hakim.

The final irony is that a constitutional principle decided a case on which far too much attention was paid to legal details and not enough to constitutional principles. Like generals preparing for the last war, the investigators and analysts of the Iran-contra scandal (present company by no means excepted) applied the standards of the last scandal. For much of 1987, Washington's fixation was, "What did the president know and when did he know it?"

That was the right question when Howard Baker asked it in 1973. It was the wrong question in 1987 because even had Ronald Reagan known that North and his colleagues were diverting money to the contras, Reagan would not have been impeached.

There was, first of all, no appetite for impeaching Reagan, who remained likable even as his approval rating fell that year. One impeachment proceeding every 200 years or so is enough.

Furthermore, the only law Reagan might have broken was the Boland amendment, the congressional ban on U.S aid to the rebels in Nicaragua. As a statute, the Boland amendment was of questionable gravity -- more like careless driving than armed robbery -- so breaking it might not have amounted to "high crimes and misdemeanors" for which officials can be impeached under the Constitution.

Oh, yes, the Constitution. Which says (Article I, Section 9) that "no money shall be withdrawn from the Treasury, but in FTC consequence of appropriations made by law." This is not a housekeeping provision. It goes to the heart of republican government. If the executive can spend public money at whim, the government so executed is not democracy.

As a legal technicality, one could argue that the money North "appropriated" for the contras was not "from the Treasury" but from Iran. It's a weak argument. The U.S. government bought those weapons to begin with, so the proceeds from selling them belonged to the nation, not to a handful of men to disburse as they chose.

The "very small narrow circle of people," as Defense Secretary Caspar Weinberger called them, who violated this essential constitutional provision no doubt thought they were acting patriotically. In fact, they were committing treason against the country, the Constitution and the very idea of democracy.

That this lesson has not yet been learned is clear. In 1989, Congress passed a bill, sponsored by Sen. Daniel Patrick Moynihan, D-N.Y., to ban the use of private or foreign money for purposes not authorized by Congress. Its veto by President Bush was barely noticed.

That's the bad news. The good news is that the United States Constitution can still protect all citizens, even those, like Oliver North, who swore to protect it and betrayed it instead.

Jon Margolis is a columnist for the Chicago Tribune.

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