Experts See a Basic Weakness in Walsh’s Case Against North

President Reagan’s critics charged Thursday that he gave former aide Oliver L. North a back-door pardon by refusing to release sensitive documents for North’s trial, but lawmakers and legal experts said that the stalemate had only exposed a basic weakness in the government’s conspiracy case against North.

“I am not really surprised,” remarked Rep. Lee H. Hamilton (D-Ind.), who was co-chairman of the lengthy congressional Iran-Contra investigation in 1987. “From the start, there was some question whether the indictment on conspiracy was a charge that could hold up.”

In addition, congressional investigators said that they had no reason to doubt the Administration’s contention that national security would be jeopardized if the government supplied all the documents that North and Walsh requested.

A “pocket pardon” is how People for the American Way, a liberal civil liberties group, characterized the decision by independent counsel Lawrence E. Walsh to dismiss the major charges against North because of the Administration’s refusal, on national security grounds, to supply documents sought by the prosecution.

Suspicions Fueled

Philip B. Heymann, a Harvard University law professor and a Justice Department official in the Jimmy Carter Administration who helped draft the existing law governing government secrecy, noted that Reagan himself had fueled suspicions about his motives by consistently characterizing North as the innocent victim of the Walsh investigation.

“What is upsetting about this is that the President never wanted North tried in the first place,” Heymann said. “You have to worry that, because he didn’t see any benefit to the case, he would view any risk to national security as a reason to balk.”

Nevertheless, the civil liberties group’s criticism of the President was not widely shared--not even by liberal Democrats who have accused North of violating the public trust by diverting to the Nicaraguan rebels the profits from the sale of arms to Iran. To them, the dismissal of charges reflected an inescapable conflict between the government’s need for secrecy and the requirements of the American system of justice.

“Obviously,” said House Majority Leader Thomas S. Foley (D-Wash.), an Iran-Contra committee member, “the administration of justice has to make a choice between protecting what it considers vital national security secrets and prosecuting some of the counts against Col. North . . . . He’s entitled to the same protections as everyone else.”

And Sen. William S. Cohen (R-Me.), vice chairman of the Senate Intelligence Committee and another member of the Iran-Contra committee, added: “There is an inevitable conflict between the criminal justice system and national security requirements.”

According to Hamilton and others, this conflict between the prosecution and national security only magnified what was a fundamental flaw in Walsh’s case. Hamilton described the conspiracy charge as too vague.

Philip Lacovara, who served as counsel to the Watergate special prosecutor in the 1970s, said that the conspiracy charge was “spongy and policy-oriented.” He noted that North was charged with conspiring to carry out a policy that violated the will of Congress, not a criminal statute.

“This is really a foreign policy dispute between the executive branch and Congress,” added Abbe Lowell, a Justice Department official in the Carter Administration. “Yes, it is possible to prosecute someone where national security is involved, but you have to have a crime like someone pocketing money. It is not easy to dress this one up as a crime. North did not do any of this for pecuniary gain.”

Victoria Toensing, former deputy assistant attorney general under Reagan, said that she doubts Walsh could prove that North conspired to defraud the government if the President himself “essentially approved what he did, or at least (North) thought (Reagan) approved it.”

Problem of ‘Gray Mail’

In 1980, the Congress enacted the Classified Information Procedures Act in an effort to deal with the problem of “gray mail”--the term used to describe how government employees under criminal indictment sometimes threaten to expose national secrets unless the charges against them are dropped. It allows the judge to serve as an intermediary in reviewing documents and to supply the prosecution with summaries of relevant information.

It did not help the prosecution in this case, but Hamilton said he doubts that a law could be written to cover a case like North’s.

Foley added that he had no reason to doubt the Administration’s contention that releasing the documents would expose national security secrets. Likewise, an aide to the Iran-Contra committee, who asked not to be identified, noted that the President never denied documents to the congressional investigators for what appeared to be illegitimate reasons.

“None of us ever believed that any of those decisions were politically motivated or designed to avoid embarrassment for the President,” the source said.

Nevertheless, the Reagan Administration has come under fire in the past for allegedly being overly cautious when it comes to classifying national security materials as top secret.

Hamilton said he has long been concerned that the law gives the President the final decision over what documents may not be declassified. “It’s an enormous power, and there are no real procedures by which it can be challenged,” he said.

Charges Called Serious

Both Foley and Hamilton said that they doubt the dismissal of key charges against North would lead other government officials to believe that they could act with impunity and then shroud their mistakes by claiming government secrecy. Both noted that the remaining charges against North are serious.

“If you can show someone destroyed documents to head off any investigation, then you have a serious charge,” Lowell said.

In addition, Foley insisted that North in no way has been cleared of wrongdoing. “This is a dismissal, not a vindication,” he said. “It has nothing to do with the inadequacy of the evidence, it has to do with the sensitivity of the documents.”

Members of the Iran-Contra committee also were quick to note that the case against North was never jeopardized by their hearings, as many critics said it would be. In fact, they noted, in light of the dismissal of the charges against North, the facts of the Iran-Contra scandal might never have been made public if Congress had not conducted its hearings.

“It magnifies the importance of what the congressional investigating committees did,” a former committee attorney said.

But the proposed dismissal of charges did not quiet the clamor among conservatives on Capitol Hill for an outright pardon of North by Reagan. Sen. Orrin G. Hatch (R-Utah), also an Iran-Contra committee member, said that the President “ought to bite the bullet.”

“He shouldn’t forget his actions, but he should forgive them,” Hatch said.