Accord on North Trial Is Reached : Thornburgh and Walsh Will Offer Gesell a Plan to Safeguard Secrets

Atty. Gen. Dick Thornburgh and the prosecution in Oliver L. North’s Iran-Contra trial defused a bitter confrontation Sunday and agreed to a compromise procedure that would impose more stringent safeguards on classified material that North plans to use in his defense.

The agreement was announced in a joint statement by the Justice Department and independent counsel Lawrence E. Walsh only a few hours after Chief Justice William H. Rehnquist granted an earlier Justice Department request to delay North’s trial until the Supreme Court could hear Thornburgh’s concern that sensitive national security secrets would be disclosed if the trial went forward as scheduled today.

Approval Needed

If the proposed agreement is approved by the trial judge, Gerhard A. Gesell, the Justice Department will ask the Supreme Court to lift the administrative stay so that the North trial can proceed. Under Rehnquist’s order, the trial is suspended until the full court can consider the disclosure issue next Friday.

The main lines of the agreement were worked out during an intense bargaining session at the Justice Department between government lawyers and Walsh aides that began late Saturday night. An agreed-upon motion asking U.S. District Judge Gesell to toughen procedures controlling release of sensitive material at the trial was sent to the trial court Sunday morning, and the two sides continued to bargain for the rest of the day on how to word the joint statement describing what they had done.

“The hatchet, if there was a hatchet, was buried today,” said David Runkel, a top aide to Thornburgh, after the deal finally was cut.

Under the agreement, the Justice Department and Walsh’s office joined forces in the motion to Gesell seeking “an additional protective order preventing the release of classified information vital to U.S. national security interests,” said the statement, issued Sunday evening at the Justice Department.

In a separate statement, Walsh’s office said that the independent counsel had already filed the motion, under seal, with Gesell.

Details Classified

Walsh’s statement said that the Justice Department has agreed with the content of that motion, whose details are classified and will never be divulged, and has agreed further to ask Rehnquist “immediately” to lift his order delaying the trial--provided Gesell accepts the motion and orders the additional procedures safeguarding classified material that Walsh requested.

“The Department of Justice concluded, and the independent counsel concurred, that the trial could not go forward without an additional protective order, and that it is essential for the court to enter such an order,” said the joint statement issued at the Justice Department.

Without such an order, the statement added, the Justice Department concluded and Walsh again concurred “that it will be impossible during the defense’s opening statement and presentation of evidence to protect against the unnecessary and uncontrolled disclosure of classified information”--information which is “of vital importance to the national security and the foreign relations of the United States.”

Thornburgh and Walsh had reached an impasse on this issue last week, with Walsh insisting that Gesell had done everything necessary to prevent unforeseen disclosure of government secrets by North. Thornburgh asked the Supreme Court to intervene on Saturday on the ground that Gesell had failed to apply federal laws governing disclosure of classified material in court.

After two rebuffs by an appeals court panel, which upheld Gesell’s earlier ruling that Thornburgh had ample authority under the law to step forward with an affidavit to block any use of classified material by either party in the case, Justice Department attorneys began preparing those documents late last week.

But it was acknowledged on both sides that if Thornburgh took that step, thereby effectively shutting off North’s main defensive strategy in the criminal case against him, the whole case would be aborted.

Screening North’s Evidence

Late Saturday, lawyers who earlier had traded bitter charges in court papers filed at the Supreme Court began talks aimed at an eleventh-hour agreement on procedures acceptable to both sides. The goal was to screen North’s evidence for secrets damaging to the national security and at the same time allow the trial to go forward.

Thornburgh’s brief, asking Rehnquist for the delay that he granted Sunday, sharply criticized Gesell’s handling of the evidence question and charged that he had “refused to adopt any mechanism that could even attempt to” protect classified material under procedures set forth in the Classified Information Procedures Act.

In reply, Walsh dismissed Thornburgh’s interpretation of Gesell’s actions as “untrue” and warned that allowing the Justice Department to step in and appeal the conduct of the case would infringe on the independent counsel’s authority, which Walsh has steadfastly contended should be accountable to no other authority in the executive branch.

To hammer that point further, a Walsh surrogate, speaking as a “source close to” the independent counsel, was authorized to tell reporters on Saturday that allowing the attorney general to intervene in the case would be “tantamount to either firing the independent counsel or making him a minion of the Justice Department.”

Specter of Watergate?

This was viewed as a clearly recognizable reference to the crisis provoked at the height of the Watergate scandal in 1973, when the Richard M. Nixon Administration’s Justice Department sought to rein in Archibald Cox, the independent prosecutor of that era, and in fact did fire him.

By this weekend, the stage seemed set for a similar confrontation, with both sides, at least to all outward appearances, spoiling for a fight. The atmosphere changed late Saturday when Walsh’s chief prosecutor in the North case, John W. Keker, met with Justice Department attorneys Steven Saltzburg and Ronald Nobel in an attempt to hammer out a compromise.

Both Walsh and Thornburgh “agreed,” Sunday’s statement said, that the protective order sought from Gesell “if granted, would provide necessary assurance that the attorney general would remain in a position throughout the trial to protect against unauthorized disclosure of classified information . . . and that this necessary function does not interfere in any way with independent counsel’s ability to carry out his duties.”

Picked by Judicial Panel

Walsh, a 77-year-old former federal judge with a long record in public service, was picked as independent counsel to head the Iran-Contra investigation in December, 1986. He was selected by a panel of three appeals court judges following procedures laid out in the Ethics in Government Act of 1968, under which independent counsels had been named to investigate six previous cases.

For months, Walsh and his staff of 26 attorneys worked quietly to amass evidence without drawing on the records of public congressional hearings at which witnesses testified under grants of immunity. To avoid exposure to such testimony, which could become grounds for a mistrial, Walsh and his aides avoided both newspaper and television reports on the hearings.

2 Major Charges Dropped

The showdown with the Justice Department was foreshadowed last December, when top officials of the Ronald Reagan Administration, including Thornburgh, met and agreed not to yield to prosecutors’ requests for classified material for use in the North trial. As a result, Walsh dropped two major charges of conspiracy and theft that were deemed to depend on the use of classified material.

There are 12 felony counts still pending against North. They include obstruction of congressional and presidential inquiries; making false statements to Congress; accepting an illegal gratuity in the form of a home security system, and improperly converting to his own use traveler’s checks that belonged to members of the Nicaraguan Contras. If convicted on all the remaining charges, North could face up to 60 years in prison and $3 million in fines.

TRIAL COMPROMISE

Atty. Gen. Dick Thornburgh and the prosecution in Oliver L. North’s trial agree to procedure for screening classified material for North’s defense.