Contrary Interests Provoke Thornburgh-Walsh Clash Over North Trial

The relationship between independent counsel Lawrence E. Walsh and Atty. Gen. Dick Thornburgh lately has come to resemble scenes from a bad marriage.

In theory, the two share a common interest in prosecuting former White House aide Oliver L. North, who is charged with lying to Congress and destroying evidence to cover his misdeeds.

But instead, they have been squabbling and bickering behind closed doors. When the fighting became too public, they asked a judge to step in. Then last week, a surprise kiss and make-up. And finally, an agreement to try to work things out better in the future.

The North trial, set to begin Tuesday, will put that agreement to a tough test.

Pledges to Object

Walsh, who is supposedly independent from the Justice Department, has pledged to do Thornburgh’s bidding. He says he will object any time North’s attorneys broach a secret or sensitive subject. Thornburgh, for his part, has promised to keep his hands off the trial--unless he believes that he is compelled to intervene to protect national security.

And North’s combative attorney, Brendan V. Sullivan Jr., will do his best to drive a wedge between the two.

If the defense injects enough secret information into the case, Thornburgh says he will be forced to pull the plug on the trial. That might cause a political embarrassment to the Bush Administration, but the attorney general said last week that he will take the heat if he thinks it is required to protect national security.

Ironically, the dispute between two veteran prosecutors has been aggravated by two laws enacted a decade ago to make it easier to try top officials of the government.

The Ethics in Government Act of 1978 established procedures for appointment of independent counsels to investigate and try officials with links to the President and his attorney general. The Watergate scandal showed the need for prosecutors who were not under the President’s thumb.

Screens Information

The Classified Information Procedures Act of 1980 was intended to let the government try officials whose jobs gave them access to secret information. Until then, corrupt spies could squelch a prosecution by threatening to expose secrets in court. The 1980 law gave the attorney general the authority to screen in advance secret information that might come up at a trial.

Now comes the case of a White House aide with close links to the President and extraordinary access to classified information. Who then calls the shots?

Independent counsel Walsh, quoting the 1978 statute, contends that he has “the full power” of the attorney general and the Justice Department to make all decisions concerning the North case.

Atty. Gen. Thornburgh, citing the 1980 law, says that he has “the final word” on all decisions concerning classified information in the North case.

At one point last week, it looked as if the trial would have to be halted while the Supreme Court decided who was correct.

Although last week’s agreement between Walsh and Thornburgh has papered over their dispute, legal experts say the clash between the two was inevitable and will likely continue.

‘Two Contrary Interests’

“You have a very deep conflict in a case like this. There are simply two contrary interests,” said Harvard University law professor Philip B. Heymann. “On the one hand, you want an attorney general speaking for the President to be in charge of deciding what national security secrets can be disclosed. On the other hand, you wouldn’t want President (Ronald) Reagan deciding whether someone like North should be prosecuted.”

Former Atty. Gen. Griffin B. Bell, who supervised the writing of both laws during the Administration of former President Jimmy Carter, is particularly proud of the 1980 measure on classified information. Without it, he said, the government would have no hope of trying North.

It “can prevent a defense lawyer from practicing graymail to get his client off,” Bell said in an interview. “Graymail” is legal jargon for a threat to expose classified information in court.

Under the 1980 law, the defense must give the government notice of “each item of classified information” that it “reasonably expects” will be used in court.

Several Options

The attorney general then has several options. He can urge the judge to exclude a piece of information if it is not “relevant” to the defense case.

Or he can suggest a substitute. Take, for example, a document including a cable message from a foreign government. After consulting with the intelligence agencies, the attorney general may ask that the document be summarized in testimony but not introduced into evidence. The actual text of the cable message could allow another foreign government to test its ability to decode U.S. cables.

May Prompt Dismissal

Or, as a last resort, the attorney general could say that any mention of the classified information would harm U.S. interests. In that situation, the judge may be called upon to dismiss all or part of the case against an official whose defense was based on that evidence.

“All of this is a balancing act,” Bell said. “It might seem confusing to the public, but I think they have just been going through a process of balancing the interests.”

Last week, some Walsh aides were critical of Thornburgh for having intervened just days before the trial was to open. But other lawyers said that Walsh deserves part of the blame for not moving sooner to clear up problems involving national security.

“Normally, you go through these kinds of discussions within the government even before you bring an indictment,” said Joseph DiGenova, the former U.S. attorney for the District of Columbia who handled scores of cases involving ex-spies and government officials. “Walsh was determined to go it alone, and I think that’s why they are having these problems now,” he said.

Others are skeptical and suspect that high government officials may be more interested in protecting their reputations than in protecting the nation’s security. At the same time, these critics conceded it is the job of these officials to be zealous in protecting security information, whatever its relative importance.

‘Job to Exaggerate’

“I assume they are exaggerating the potential damage from revealing this information,” said John W. Nields Jr., counsel for the House in the Iran-Contra hearings. “But of course, their job is to exaggerate the damage to the national security. On the outside, we won’t know for years whether it was legitimate or not.”

Last week, 18 years after he went before the Supreme Court to argue that publication of the Pentagon Papers would greatly damage the nation’s security, former U.S. Solicitor General Erwin N. Griswold said that the publication posed no “trace of a threat” to national security.

In a recent opinion piece published in the Washington Post, Griswold said he was misled by then-President Richard M. Nixon’s aides about the impact of releasing the Pentagon Papers, which revealed inner workings of the Defense Department during the Vietnam War.

“It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another,” he said.

In the North case, Walsh and defense lawyers have been fighting behind closed doors over whether nations such as Israel, Saudi Arabia, Taiwan or Brunei can be revealed in court as having been involved in covert U.S. projects. News reports already have mentioned these countries and their involvement.

“This isn’t ridiculous at all,” Thornburgh said last week in defense of the government’s stand. “A lot of our ability to get things done around the world, I’m told and I believe, depends upon our credibility with both allies and adversaries. If they get the notion that matters discussed in confidence with representatives of the United States . . . are subject to wholesale disclosure . . . then their willingness to cooperate with us, to share information with us . . . is obviously going to be seriously compromised,” he said in an interview with The Times.

Raises Looming Problem

Still, the government’s refusal to name names raises another looming problem.

From the beginning, North’s lawyer Sullivan has contended that the 1980 law giving the government the right to see the defense evidence in advance and to limit what is introduced at trial denies his client the right to a fair trial and is therefore unconstitutional. On several occasions, Judge Gerhard A. Gesell has hinted that he agrees.

“This is not a country, like other countries, where the entire script of the trial is worked out in advance, including the conclusion,” Gesell said from the bench.

Statute in Question

Even Thornburgh conceded in The Times interview that the 1980 statute may be unconstitutional. “As an experienced prosecutor myself,” he said, “I would love to have had a peek inside the defense’s case, but you don’t get in under normal circumstances.”

The result of all this leaves Gesell with a dilemma. If he permits too much sensitive information to be revealed in court, Thornburgh likely will balk and act to end the trial under the terms of the 1980 law.

However, if he withholds too much evidence on grounds that it is sensitive, Sullivan will have a strong argument that his client has been denied his constitutional right to a fair trial.

Dispute Between Thornburgh, Walsh Atty. Gen. Dick Thornburgh, citing a 1980 law, says he has ‘the final word’ on all decisions about classified information in the Oliver L. North case.

Independent counsel Lawrence E. Walsh, citing a 1978 law, says he has ‘the full power’ of the attorney general and Justice Department in the case.