President Reagan, in a shift of strategy on the Iran- contra scandal, seems to be following an old maxim of courtroom lawyers: When the law is against you, argue the facts, and when the facts are against you, argue the law.
For almost five months after the scandal surfaced last November, Reagan insisted that he had little knowledge of the covert program that channeled aid to Nicaragua's anti-Sandinista rebels during a period when Congress had banned U.S. government assistance to the contras.
But, as evidence to the contrary has piled up during congressional hearings over the last two weeks and a succession of witnesses has offered testimony linking the President to the covert operation, Reagan has begun arguing that--no matter what the facts--he did nothing to violate the law.
Terms of Ban Imprecise
And the congressional ban--a series of legislative provisions written by Rep. Edward P. Boland (D-Mass.) commonly referred to as the Boland amendment--is so imprecise that Reagan's critics thus far are having a hard time proving that the President was involved in a clear-cut violation.
Reagan now concedes that he was kept well informed all along that foreign countries and private citizens were contributing to the contras during the period when the congressional ban was in effect. "I was kept briefed," he has acknowledged. It "was my idea to begin with."
And, although Reagan himself continues to deny any direct role in soliciting such funds, witnesses at the hearings have described in dramatic detail the role played by White House aides and others with ties to the Administration in encouraging the flow of outside money.
Regardless, Reagan now contends, the congressional ban on U.S. military aid to the contras during most of 1985 and 1986 did not apply to the President or to his top White House national security aides. Moreover, he argues, the law in effect during those years did not forbid solicitation of funds from private individuals or third countries.
The "only restriction" binding on him, Reagan said, "was that I couldn't approve the sending of help or arms out of our budget."
The Boland amendment provided that, for a two-year period beginning in October, 1984, no funds available to the CIA or any other federal agency "involved in intelligence activities" could be expended "for the purpose or which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement or individual."
For most of this period, the law said nothing about soliciting funds from other nations. In mid-1985, Congress rejected a Senate-passed prohibition against such solicitations, and later that year it explicitly permitted the State Department to solicit money for humanitarian purposes so long as U.S. foreign aid was not contingent on such contributions.
Reagan told magazine correspondents last week that "my interpretation (of the law) was that it was not restrictive on the national security adviser or the NSC." The National Security Council is the White House staff office headed by the President's national security adviser.
More than that, Reagan said, "there is nothing in that law that prevents citizens--individuals or groups--from offering aid of whatever kind they wanted to."
The congressional hearings, now in their third week, have made clear that Reagan addressed groups of individuals who contributed privately to the contras. And it was in a meeting with Reagan early in 1985 that King Fahd of Saudi Arabia doubled the Saudi contribution to the contras, to $2 million a month.
Reagan still insists that he did not solicit funds--the private U.S. citizens and the king offered to contribute on their own, he has said--but he contends also that, even if he had, he would not have violated the law.
Rep. Dick Cheney (R-Wyo.), the ranking Republican on the House investigating committee, said in an interview that the Boland amendment was not binding on the President and that it would be "totally fallacious" to say that "Congress banned the President from soliciting funds from third countries."
In any event, Cheney said, he has seen no evidence to contradict the President's assertion that he has not solicited funds for the contras from third countries.
Even Democrats acknowledge that Congress never explicitly prohibited solicitations from third countries. But they note that Robert C. McFarlane, Reagan's national security adviser in 1985, and Langhorne A. Motley, then an assistant secretary of state, repeatedly assured Congress that the Administration interpreted the Boland amendment as ruling out such solicitations.
In effect, they insist, the Administration broke its own assurances to Congress--and is now revising its declared interpretation of the law to obscure that fact.
The White House strategy for responding to the congressional hearings is plotted daily in a meeting between Chief of Staff Howard H. Baker Jr. and his personal staff.
"Our position is that the President was the architect of his policy on aiding the contras," said an aide to Baker, who asked not to be identified, "but that those who filled in the blanks were not acting on his instructions if they didn't follow the law."