New Legal Moves Peril North’s Trial : Thornburgh May Bar Some Evidence if High Court Denies Delay Request

The Justice Department asked the Supreme Court on Saturday to delay the trial of Oliver L. North until the judge hearing the case strictly applies federal laws to limit disclosure of classified information in court.

At the same time, Justice Department sources said, Atty. Gen. Dick Thornburgh has ordered criminal division attorneys to prepare court papers asserting the government’s right to prohibit any use of classified material by either side. Such an affidavit, expressly authorized by the Classified Information Procedures Act (CIPA), could scuttle the prosecution being conducted by independent counsel Lawrence E. Walsh.

By late Saturday, Chief Justice William H. Rehnquist, who has the power to grant a temporary delay in his role as presiding justice for the federal courts in the nation’s capital, had taken no action. But it was believed he might seek informal consultation with other justices before ruling, probably this weekend.

Trial Date Set

If the Supreme Court refuses to grant Thornburgh’s eleventh-hour request for a delay, the trial is set to begin Monday morning--almost certainly triggering the Justice Department move to block all use of classified material, which could abort the entire proceeding.

Thornburgh has made it clear he does not want to take that step before U.S. District Judge Gerhard A. Gesell, the trial judge, exercises his obligations under CIPA, and Saturday’s court paper sharply criticized Gesell for failing to do so.

The trial court, the Justice Department brief said, “has refused to adopt any mechanism that could even attempt to afford the full opportunities for reasoned decision-making . . . demanded by CIPA. . . . If trial goes forward on the present terms, it is all but certain that CIPA will be violated, that the attorney general and the court will not be able to fulfill their responsibilities.

“The government will be irreparably injured and the public interest substantially impaired, especially if the prosecution is prematurely and unnecessarily frustrated.”

Gesell and Walsh have both argued that if the Bush Administration wishes to exercise its prerogative to block all disclosure of classified information in the North trial, it should do so.

Gesell so ruled last week, dismissing as “frivolous” the Justice Department request for a trial delay while restrictions called for by CIPA could be imposed on any classified material North should seek to introduce in his defense. A federal appeals court panel upheld Gesell’s ruling Friday, likewise stressing the attorney general’s legal authority to block all disclosure of classified material at the trial.

Gesell also ruled that authorizing legislation gives Walsh and his surrogates alone, and not the Justice Department, full authority to prosecute the case against North and exclusive authority to appeal against any aspect of the judge’s conduct of the trial.

Maintains Independence

Throughout his lengthy prosecution of North, the former White House aide who is the key figure in the Iran-Contra controversy, Walsh has contended that he is accountable to no other executive branch authority.

In the Justice Department brief filed Saturday, acting Solicitor General William Bryson bluntly confronted Walsh’s claims, asserting that countervailing authority to protect information classified for reasons of national security “belongs to the attorney general, as the agent of the President”--authority, he added, that derives from the President’s “constitutional role as head of the executive branch and as commander-in-chief.”

The brief added: “Any effort to grant the authority to make classified-information disclosure decisions to a person who is not fully the agent of the President would be, at a minimum, constitutionally suspect.” By extension, the brief added, the attorney general is given explicit authority under CIPA to appeal trial court decisions that would threaten improper disclosure of classified material.

In a response also filed Saturday at the Supreme Court, Walsh’s team fought back fiercely to keep control of the prosecutorial turf that Gesell, in his ruling last week, fully granted him.

“A determination that independent counsel does not have exclusive control over the exercise of prosecutorial and investigative matters within the scope of his appointment would subvert his independence in defiance of express legislative intent,” Walsh’s brief said.

Walsh Opposes Action

Walsh also argued that in intervening to seek a delay of the trial to protect secrets from disclosure, “the attorney general comes before this court in an attempt to assume a role that the Ethics in Government Act and his own independent counsel regulation deny him: that of prosecutor in this case.”

Walsh did concede, as he did in earlier chapters of the dispute over control of North’s expected disclosure of classified materials in his defense, that Thornburgh has the power to ban their use altogether--and he again invited him to do so. He argued, however, that Gesell has already applied CIPA, the federal law controlling court disclosure of secrets, in such a way as to limit the possibility that many secrets remain to be disclosed.

An earlier wrangle between Walsh and North’s defense counsel over use of classified material led Gesell last month to drop the two principal counts in the indictment of North, leaving comparatively minor charges for trial.

During that process, Walsh reminded the court: “Independent counsel took action to protect the secrets, either by obtaining orders from the District Court or by narrowing its case. Few specific disclosable secrets (if any) can remain.”