No-Nonsense Judge Assigned Iran-Contra Case

Fourteen years ago, President Richard M. Nixon’s former appointments secretary, an earnest, well-dressed young man named Dwight L. Chapin, stood before a federal judge in a Washington courtroom to await sentencing on perjury charges stemming from the Watergate scandal.

“(You) apparently chose loyalty to your superiors above your obligations as a citizen and a public servant,” the judge told him. And with that, he imposed on the ex-White House aide and first-offender the relatively stiff sentence of at least 10 months in prison.

Now, this same white-haired jurist, U.S. District Judge Gerhard A. Gesell, has been chosen to preside over the trial of President Reagan’s former aides, Lt. Col. Oliver L. North and Rear Adm. John M. Poindexter.

The designation of Gesell, 77, one of the best-known and most experienced trial judges in the nation, could have a profound impact on the criminal proceedings. It will be up to Gesell to determine the schedule and pace of the case. He will be the final arbiter on the question of whether the trial will begin before or after the November presidential elections, before or after President Reagan leaves office.

Sensitive Questions of Law

And it will be up to Gesell to rule on many of the critical and extremely sensitive questions of law in the case: Should North and Poindexter be tried together or separately? Should defense lawyers be allowed to call Reagan or Vice President George Bush as witnesses? To what extent can classified materials be used in the trial?

Over the years, Gesell has developed a reputation among Washington lawyers for intelligence, for independence of mind, for skepticism toward the federal government’s point of view and for m1870031214no-nonsense approach toward the attorneys in his courtroom.

“I will say that the defendants will get a speedy trial by one of the most outstanding trial judges in the country,” said Jacob A. Stein, the Washington attorney who defended Chapin in the Watergate case before Gesell.

In appearance, the judge is a grandfatherly figure, a genial Santa Claus. But once on the bench, he wastes little time in letting lawyers know who is in charge. Indeed, if any judge can be expected to place strict limits on the efforts of North’s attorney, Brendan V. Sullivan Jr., to dominate the courtroom as he did the Iran-Contra congressional hearings, it is Gesell.

‘Will Control Proceedings’

“Judge Gesell will control the proceedings,” said Joseph E. DiGenova, who just stepped down as the U.S. attorney for the District of Columbia. “He does not allow attorneys to control his courtroom.”

Gesell has an unusual background for a federal judge. He is one of the few lawyers who has been willing to give up a job as senior partner for one of Washington’s leading law firms for prolonged service as a federal district judge.

He was born in Los Angeles, the son of Arnold Gesell, the renowned developmental psychologist. The younger Gesell graduated from Phillips Andover Academy, Yale University and Yale Law School.

Gesell’s roots in Washington go back to the days of the New Deal. In 1935, he came to work at the Securities and Exchange Commission, then under the leadership of William O. Douglas, the future Supreme Court justice.

Six years later, he moved to the Washington law firm of Covington & Burling, where he became one of the city’s leading antitrust lawyers over the next quarter century. While at the firm, he served briefly as chief counsel to the joint commission that investigated the Japanese attack at Pearl Harbor.

Trademark of Independence

He was appointed to his life-tenured federal judgeship by President Lyndon B. Johnson in 1967 and quickly began displaying the independence that became his trademark.

In 1969, more than three years before the Supreme Court handed down its landmark decision granting women a qualified constitutional right to have an abortion, Gesell struck down the District of Columbia law making abortions illegal.

“Its many ambiguities are particularly subject to criticism, for the statute unquestionably impinges to an appreciable extent on significant constitutional rights of individuals,” he wrote.

Two years later, when the Nixon Administration sought a prior restraint order to prevent the Washington Post from publishing the Pentagon Papers, Gesell turned down the request. Claims of protecting national security did not justify such a restriction on freedom of the press, he said. He was later upheld by the Supreme Court.

“He’s always been very fair, even-handed and relatively skeptical in approaching national security issues,” said Mark Lynch, a Washington attorney who formerly handled freedom of information and national security cases for the American Civil Liberties Union. “You know, he doesn’t buy a lot of mumbo-jumbo.”

Judge at Ehrlichman Trial

While U.S. District Judge John J. Sirica captured the national attention in the Watergate cases, Gesell presided over nearly as many of the criminal proceedings. He was the judge at the trial of former White House aide John D. Ehrlichman, Chapin and three other men on charges stemming from a break-in at the offices of a psychiatrist who had treated Daniel Ellsberg, the man who leaked the Pentagon Papers to the press.

During that case, Gesell voiced the opinion that there are at least some circumstances when the claim that underlings are merely following orders should be taken into account.

He imposed sentences of probation on Bernard L. Barker and Eugenio R. Martinez, two of the men who broke into the psychiatrist’s office, concluding that “you were duped by high government officials.” However, at the sentencing, Gesell also told them, “as you both should know, it is impossible to preserve freedom when zealots take over, and the rule of law is ignored.”

When Robert H. Bork, then a Justice Department official, carried out Nixon’s order to fire Watergate special prosecutor Archibald Cox, Gesell ruled that Bork’s action was illegal. He later threw out the case on grounds that it was moot, or legally dead, after a new special prosecutor was named.

Rules Against Air Force

In 1980, Gesell ordered the Air Force to reinstate and give back pay to a former sergeant who had been discharged when he openly declared his homosexuality. He said the Air Force had engaged in “perverse behavior” by failing to explain the circumstances under which it allowed homosexuals, under certain exceptions, to remain in the service.

Two years ago, Gesell attracted national attention when he refused to take part in a nationwide, televised naturalization ceremony July 3, the eve of the celebration of the centennial of the Statue of Liberty, because he believed that TV advertising would tarnish the proceedings.

Producers of the televised Statue of Liberty celebration had wanted Gesell to swear in 106 prospective citizens before TV cameras at the Jefferson Memorial. Instead, the judge said he would perform the ceremonies in the usual way, inside the federal courthouse.

“Our usual dignified naturalization court is being turned into a pageant over which I have no control as the presiding judge,” he wrote.

Picked by Chief Judge

After the federal grand jury handed up its indictments in the Iran-Contra case Wednesday, Chief U.S. District Judge Aubrey E. Robinson Jr. exercised his right under local court rules to assign the case to the judge of his choice. He picked Gesell.

“I’m not going to say that Judge Gesell is the best conceivable judge that North and Poindexter could have had,” Bruce Fein, a visiting fellow at the conservative Heritage Foundation, said Thursday.

“Still, I think it’s a favorable development. . . . Judge Gesell came from the top, from the elite of society, not from the bottom like Judge Sirica. Judge Gesell’s circles were the high-powered attorneys who wandered in and out of the Oval Office. He has a more sophisticated understanding of how people act in positions of power than did Judge Sirica.”