Judge Delays Dropping Main North Charges

A federal judge temporarily balked Monday at dropping the two central charges against former White House aide Oliver L. North in the Iran-Contra case, saying that Atty. Gen. Dick Thornburgh must first take official responsibility for the “basic policy decision” of refusing to release classified documents needed for the trial.

Although Thornburgh seems likely to submit such an affidavit, U.S. District Judge Gerhard A. Gesell said he expects similar secrecy problems to complicate North’s trial on the 12 remaining counts, including obstruction of congressional inquiries, obstruction of a presidential inquiry and making false statements.

Independent counsel Lawrence E. Walsh filed a motion last week to dismiss charges of conspiracy to defraud the United States and theft of government property against North on grounds that the Administration would not release classified information needed for a jury to decide the case. North was accused of illegally diverting $12 million to the Nicaraguan rebels from proceeds of the Iran arms sale operation.

Gesell told attorneys that beginning Friday, new closed-door discussions must take place to address the number of sensitive documents to be used at North’s scaled-down trial.

A major problem is that North’s lawyers served notice that they will seek to use many of the same 300 classified documents that they had intended to use for the larger range of charges.

Legislation Passed in 1980

These documents have not yet been cleared by an interagency government security committee under legislation passed by Congress in 1980 to deal with such sensitive prosecutions. Should Gesell rule that most of them are still relevant to the trial, the Administration could be pressed to scuttle the remaining case if it holds firm against releasing them.

Pressuring defense attorney Barry Simon to agree to a scaled-down list of sensitive documents, Gesell said Simon once estimated that 90% of these 300 classified memos, reports and other files dealt with the major charges against North, which now are about to be dismissed.

But Simon denied that he ever said this, declaring that “those documents clearly relate to the other counts” as well as the main ones.

“We can’t argue about the record,” Gesell replied. “I’ve read it recently and it’s there.”

At another point, Gesell seemed to sympathize with defense attorneys in telling Walsh that, if the prosecution intended to demonstrate North’s motive for his alleged illegal conduct, the defense might need the same classified documents to try to prove North’s innocence of the remaining charges.

Defense attorneys would like to prove that North took part in several covert operations similar to the Iran arms sale initiative. They hope that jurors might conclude that North believed that this operation was entirely legal, since the other projects had been authorized.

Associate prosecutor Christian J. Mixter told Gesell that he should determine carefully if many of the same sensitive documents truly are needed by defense attorneys, pointing out that an unrestricted declassification process would be very time-consuming.

Gesell, who has set Jan. 31 for the start of North’s trial, said that “it is too early to know whether we have to change the trial date.”

Simon said defense attorneys, who already have subpoenaed President Reagan and President-elect Bush to testify for North, may serve additional subpoenas on the two officials for production of secret documents in their possession. The White House has served notice that it will contest the current subpoenas on grounds that, under the government’s separation-of-powers doctrine, such high officials should not be compelled to testify in court.

This constitutional issue has not yet come before Gesell for a ruling.

Notebook Subpoena Fought

North’s lawyers said they are objecting to a subpoena from Walsh for production of spiral-bound notebooks that North kept in his desk starting in 1983. Some heavily censored portions of these records were given to the congressional committees that investigated the Iran-Contra scandal in 1987.

Attorneys for both sides said the case still is so complex that the trial may last up to five months. Gesell heaved a sigh and said: “We’ll have a wonderful summer.”

Gesell said an affidavit from Thornburgh is necessary before he can dismiss charges against North because the Reagan Administration must formally declare its refusal to release classified documents for the case. Gesell implied that Walsh cannot assume this burden because he was appointed by a judicial panel and not confirmed by the Senate.

Walsh, who met with Thornburgh last week before moving to dismiss conspiracy and theft charges against North, said that he foresees no problem with obtaining such an affidavit and that he plans to submit one by Thursday.