All kinds of dark motives have been suggested for the move by Oliver L. North to subpoena his former bosses, President Reagan and President-elect Bush, as well as Secretary of State George P. Shultz as defense witnesses at his Jan. 31 trial.
Some speculate that the subpoenas represent one last daring effort to procure a presidential pardon; pardoning North, after all, would spare Reagan and Bush the possible embarrassment of testifying about a matter that both would rather forget--the Iran-Contra scandal. Others suggest that North’s lawyers are trying to get the criminal charges against him dismissed; they supposedly expect Reagan and Bush to argue that their court appearances are barred by executive privilege and secretly hope that the courts will sustain that claim, at which point North will contend that he cannot get a fair trial. At the very least, others speculate, North’s lawyers are hoping that protracted appeals will delay the trial.
This speculation may have some validity, but it overlooks one obvious point: North, charged with defrauding the government by selling U.S. arms to Iran and diverting the profits to the Nicaraguan Contras, needs the testimony of Reagan and Bush. If North’s chief defense is that he believed his actions to be authorized by the President and to have advanced the President’s causes, who better to address that point than the President? Like Reagan, Bush has said he knew nothing of the diversion of funds to the Contras, but both had aides whom North consulted at every step and both could be asked more about what their aides told them. North’s attorneys would have been remiss had they not subpoenaed both Reagan and Bush.
Legal precedents, though sketchy, seem to be on North’s side, too. United States vs. Nixon, the 1974 Supreme Court decision that commanded former President Richard M. Nixon to surrender his Watergate tapes to the special prosecutor, laid down the broad proposition that “the general assertion of (executive) privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” That ruling left open the possibility that a court might be more deferential to a President who invoked national security, not just the separation-of-powers doctrine, as justification for scorning a subpoena--a possibility that White House counsel are surely exploring. The Nixon case might also be distinguished because it compelled the President only to surrender physical evidence, not to testify in person. As the Justice Department noted last week, “It would be unprecedented for a President to personally appear as a witness.”
That’s correct. But the reason the lawbooks provide few precedents directly on point is that throughout U.S. history Presidents have sought to resolve disputes over court subpoenas before they grew into into constitutional confrontations. Thomas Jefferson spurned a subpoena to appear at the treason trial of Aaron Burr but made a show of voluntarily submitting documents. Gerald R. Ford willingly provided a videotaped deposition for the 1975 trial of a would-be assassin. In 1980 President Jimmy Carter answered questions on videotape for a grand jury investigation.
That same technique could be used profitably at the North trial. If Reagan wants to help the former aide whom he once proclaimed a national hero, he could agree to answer written questions or to be questioned by North’s lawyers on videotape. Because many of his privileges will disappear when he becomes an ex-President on Jan. 20, Reagan may be more vulnerable to subpoenas than Bush; it must be apparent to him that his return to private life in Los Angeles would be infinitely more pleasant if he were to agree to a few hours behind a videotape camera now than to days on a witness stand. So far, both Reagan and Bush have cooperated with the bodies investigating Iran-Contra, including the grand jury. It is in their interest (and the country’s) to continue that conciliatory approach. And if written or videotaped testimony from two Presidents does not satisfy North and his lawyers, then their real motives for issuing these subpoenas will become clearer.