Prosecution Facing Tough Job as Deaver Trial Begins

Michael K. Deaver, once one of President Reagan’s closest aides and confidants, goes on trial in federal court this morning on perjury charges that some legal experts believe may be difficult to prove.

Deaver stands accused of having lied about his lobbying activities after he left the White House, both to a congressional committee and to a federal grand jury. But there are no so-called “substantive charges” in the case--he is not charged with any direct violation of federal ethics or conflict-of-interest law.

It is the first prosecution to be brought by a court-appointed independent counsel since Congress established the controversial office nine years ago. The counsel, Whitney North Seymour Jr., a former federal prosecutor in Manhattan, was appointed principally to determine whether Deaver violated the federal Ethics in Government Act by lobbying former White House colleagues after he resigned as deputy White House chief of staff in May, 1985.

Under the 1978 ethics law, former high officials such as Deaver are prohibited from contacting their former agencies on behalf of a business client for 12 months after they leave government service. Such contacts are proscribed for even longer periods when the ex-official had direct supervision over the subject under consideration.

The trial, before U.S. District Judge Thomas Penfield Jackson, is expected to last four to five weeks. Selection of a jury will take three or four days, court officials estimated.

Seymour has refused to say publicly why the indictment of Deaver he obtained last March contained five charges of perjury and “false declarations” rather than any conflict-of-interest charges, the original subject of his investigation.

Several legal authorities said that Seymour apparently believed that Deaver, 48, may have violated the spirit but not the letter of federal ethics laws, so conflict of interest would be difficult to prove. Deaver has denied wrongdoing.

These authorities said that Deaver’s attorneys apparently convinced Seymour that some of the government officials Deaver had contacted in connection with his public relations business technically were outside the circle of those the law forbade him to lobby. That is, they were in agencies such as the Office of Management and Budget and the National Security Council, White House agencies that legally are separate from the Executive Office of the President, where Deaver had worked.

“It’s rare for a case like this not to include substantive charges,” said one Washington lawyer who spoke on condition of anonymity, “but I think that Seymour, when he thought about the arguments of Deaver’s lawyers that their client technically may not have violated the law, decided to take another tack and build his case on perjury.”

Jurors’ View Foreseen

Said another Washington attorney who once was a prosecutor: “Perjury cases are difficult to prove because juries tend to be sympathetic to the defendant unless the perjury is truly outrageous.

“Most jurors, for example, have never robbed a bank, so they tend to convict bank robbers, but every juror has prevaricated in his or her life and thinks of it as being natural--again, if the perjury is not outrageous.”

Deaver’s lawyers, Herbert J. Miller and Randall J. Turk, are expected to argue that Deaver simply couldn’t recall certain contacts he had with federal officials on behalf of U.S. or foreign clients. The former White House aide had no motive to lie about these contacts, they will contend, because such contacts did not violate federal ethics laws.

Seymour, however, said in court papers last week that Deaver lied to protect his lucrative business and to keep the public from finding out that he simply “traded on his personal relationships with high government officials and collected large fees.”

Seymour said he will try to show the jurors that Deaver lied to conceal the true nature of his activities.

“Deaver falsely portrayed himself as a grand ‘strategic planner’ who was hired not for his connections with the First Family and the highest levels of the executive branch, but for his ability to engage in big-picture ‘strategizing,’ ” Seymour wrote.

Face-Saving as Motive

“Admitting that he was merely peddling ‘access’ would have resulted--in addition to the legal and pecuniary consequences . . . in embarrassment to himself and his friends.”

Deaver, if convicted on all five counts, could face maximum punishment of 25 years in prison and $34,000 in fines.

Seymour’s case suffered a setback last month, when Judge Jackson refused to support his efforts to call Canadian Ambassador Allan Gotlieb as a prosecution witness. Seymour, despite objections from the State Department and the Canadian government, wanted Gotlieb to testify about his dealings with Deaver to prove that Deaver had lied to federal investigators.

Jackson ruled that diplomatic immunity prevented Seymour from compelling Gotlieb’s testimony. Deaver had a $105,000 contract to represent the Canadian government during his first year in private business, but the contract was not renewed.

One count in the indictment says that Deaver lied to the grand jury when he denied that he had played an early role at the White House in development of a U.S. strategy to reduce acid rain pollution, including the selection of presidential envoy Drew Lewis to consult with Canadian officials on this problem.

Deaver’s trial was delayed more than a month by an unsuccessful legal challenge to Seymour’s power to investigate him. Jackson ruled that Deaver may revive that challenge after his trial.

The former presidential aide has contended that his once-lucrative business, with $4.5 million in consulting contracts, has dwindled to virtually nothing because of Seymour’s yearlong investigation.