North Judge Delays Ruling on Bush, Reagan Subpoenas

A federal judge declared Friday that he has “the naked power” to force President Bush and former President Ronald Reagan to testify at the upcoming trial of former White House aide Oliver L. North.

But U.S. District Judge Gerhard A. Gesell told lawyers in his courtroom that “great deference” must be shown to Bush and Reagan. He postponed a decision on whether to uphold subpoenas by North’s attorneys for testimony and relevant documents from both men.

On another matter, Gesell denied independent counsel Lawrence E. Walsh the right to obtain the personal notebooks of North, who objected to providing them based on his constitutional protection against self-incrimination. Gesell said Walsh had not shown evidence that the notebooks contained relevant information that was not available elsewhere.

Gesell was asked by Justice Department attorney Stephen Saltzburg to quash the subpoenas for Bush and Reagan on grounds that North’s lawyers had made no showing that the two men could provide crucial evidence for North’s defense in the Iran-Contra case. Saltzburg said the government already had provided “an enormous amount of classified information” to North.

Both Reagan and Bush have denied authorizing North or others to divert millions of dollars in proceeds from the sale of arms to Iran to help resupply the Nicaraguan Contras in 1985 and 1986. Original charges against North of conspiracy and theft were dismissed earlier this month when the Reagan Administration certified to Gesell that sensitive documents necessary for such a trial could not be furnished on national security grounds.

Instead, North is scheduled to go to trial Tuesday on 12 lesser charges including destruction of government documents and misleading Congress and a presidential board of inquiry.

The hearing was punctuated by an outburst from North’s chief attorney, Brendan V. Sullivan Jr., who shouted angrily at Gesell at one point and accused him of showing prejudice against North. Gesell denied the accusation and calmly told Sullivan that he understood the lawyer was “trying to make a record.”

Sullivan appeared stung when Gesell noted that he was talking to his partner at the defense table while the judge was trying to tell lawyers how he would screen prospective jurors next week.

Sullivan leaped to his feet and shouted, “Please don’t scold defense counsel. Please don’t do that,” adding that it showed bias against North. Sullivan said he was merely conferring with his co-counsel, and told Gesell: “That’s the second time it has happened, and I take offense at that.”

The feisty Sullivan gained a reputation for aggressiveness at the nationally televised congressional hearings in 1987 when he frequently spoke out in defense of North, often interrupting his questioners with demands such as “Get off his back.” When it was suggested that he interrupt less, Sullivan explained to committee members: “I am not a potted plant.”

On the subpoena question, Gesell told lawyers that “as far as the power of the court to require testimony by Reagan or Bush, I do not think there is any question. I have no doubt of the naked power if I have to use it.

“It’s a power to be exercised with great deference,” the judge continued. “It’s a power not to be asserted except as a last resort if there is no other way to resolve the issue.”

Gesell said he was not convinced that Reagan’s testimony would prove to be necessary. He suggested that the former President might provide written answers to written questions as an alternative to appearing in court.

However, the judge said Reagan’s personal diaries might prove to contain relevant information and that if so, they should be provided. Government lawyers said they doubted this was true, because the White House had furnished excerpts in 1987, but they promised Gesell a prompt report on this question.

The judge took no immediate action to enforce subpoenas served by North’s lawyers for the testimony of Reps. Lee H. Hamilton (D-Ind.) and Dave McCurdy (D-Okla.), two congressmen who investigated the Iran-Contra scandal, as well as subpoenas for records of three House committees.