2 North Charges Dismissed; Reagan Subpoena Opposed

A federal judge Friday formally dismissed the two main charges against Oliver L. North in the Iran arms case after receiving a sworn statement from Atty. Gen. Dick Thornburgh that government secrets would be compromised in a trial on those counts.

U.S. District Judge Gerhard A. Gesell said in his ruling that he had to accept Thornburgh’s statement that many classified documents cannot be used to try the former White House aide on the “core” counts of conspiracy and theft in the indictment against him.

Under the 1980 Classified Information Procedures Act, the judge said, he could not “force the attorney general to prosecute a case . . . (he) does not desire to prosecute.” North, a retired Marine Corps lieutenant colonel, still faces trial on 12 lesser counts.

Meanwhile, in a related development, Thornburgh filed a motion to quash subpoenas from North’s lawyers seeking testimony from President Reagan and President-elect Bush.

Thornburgh argued that there are “well-established constitutional privileges” under the separation-of-powers doctrine to prevent a sitting or former President from being called against his will to testify at a trial. In addition, Thornburgh said, North has not demonstrated the “relevance, materiality and need” of specific information sought from them.

In a 27-page motion, Thornburgh said that Reagan “will consider furnishing appropriate information in writing in response to reasonable written questions, if limited to material subject matter.” He said Bush “joins that offer.”

Gesell indicated that he would hear arguments on the motion later this month.

Earlier this week, Gesell told Lawrence E. Walsh, the court-appointed independent counsel in the Iran-Contra case, that he would not grant Walsh’s motion to dismiss the two charges against North until Thornburgh certified the national security obstacles to prosection.

The dismissed counts alleged that North had illegally diverted $14 million in Iranian arms-sale proceeds to help rebel forces in Nicaragua.

The remaining counts include obstruction of congressional inquiries, obstruction of a presidential inquiry and making false statements.

Gesell did not act to postpone North’s trial, set for Jan. 31, although attorneys in the case have said privately that they doubt the case can start that soon in view of additional pretrial discussions that still must take place.

After the hearing, Gesell closeted himself with lawyers from both sides to begin going over a new list of classified documents that will be needed for the scaled-down trial.

Disputes between defense and prosecution lawyers over exchanging non-classified documents also could delay the trial. Defense attorney Barry Simon told Gesell that he is not yet ready to share certain defense material with Walsh’s office, a customary pretrial procedure. This led Gesell to suggest that Simon is “playing a cat-and-mouse game.”

Associate independent counsel John W. Keker told Simon that he could expect, in return, the same extent of cooperation that he is offering.

“What is sauce for the goose is sauce for the gander,” Keker declared. The judge said that he would seek to assure cooperation by both sides.