Judge Won’t Order Reagan to Appear at Trial

A federal judge refused Friday to order former President Ronald Reagan to testify at Oliver L. North’s trial, saying “nothing . . . remotely supports” the defense claim that the ex-President authorized illegal activities.

“There has been no showing that President Reagan’s appearance is necessary to assure Lt. Col. North a fair trial,” U.S. District Judge Gerhard A. Gesell said in a written order.

North lost another round a few hours later when Gesell refused to dismiss the charges against him. “All these counts go to the jury,” the judge said after an hourlong hearing.

Would Have Fought Order

Meanwhile, Reagan said in Rancho Mirage, Calif., that he would have continued to fight any efforts to force him to appear.

“I made up my mind I wasn’t going. I think it would have set a precedent that the next President doesn’t have a right to impose on other Presidents. No President has ever been subpoenaed,” Reagan told KESQ-TV.

Barry Simon, North’s attorney, argued that the 12 counts against North should be dropped for a variety of reasons. Among other things, Simon said North never intended to obstruct an investigation by former Atty. Gen. Edwin Meese III into the Iran-Contra affair after it was revealed in November, 1986.

Attorneys for North, a former National Security Council aide, have argued during the six-week trial that the retired Marine was acting on Reagan’s authority when he defied Congress by raising money and providing military assistance to the Nicaraguan Contras in 1985 and 1986.

In December, defense lawyers issued a subpoena to compel Reagan’s appearance in court. But Gesell said he could find nothing to indicate that North was acting on Reagan’s authority.

“The trial record presently contains no proof that defendant North ever received any authorization from President Reagan to engage in the illegal conduct alleged, either directly or indirectly, orally or in writing,” Gesell wrote. “Accordingly, the subpoena is quashed.”

The prosecution rested its case Thursday after calling 29 witnesses, and the defense is scheduled to begin its case before the jury on Monday.

North is accused of obstructing Congress and making false statements about helping the rebels in a complicated scheme that also involved selling weapons to Iran and diverting the profits to the Contras.

No Presidential Privilege

In his five-page order, Gesell said no presidential privilege prevented him from ordering the former President to testify, had defense attorneys made a sufficient case that Reagan’s appearance was essential to a fair trial.

“Defendant has wholly failed to make this necessary showing,” Gesell said.

Had Gesell granted the defense request, Reagan, who now lives in Los Angeles, would have been the first former President to be compelled to testify in a criminal proceeding concerning his conduct while in office.

Gesell said he reviewed numerous documents and the trial record in reaching his decision.

Reagan cooperated with the independent counsel’s investigation, which has uncovered “voluminous materials, classified and non-classified, running into hundreds of thousands of pages of White House documents,” Gesell said.

Examined Diaries

The judge said he had examined portions of Reagan’s personal diaries as well as extensive written answers to questions posed by the grand jury that indicted North in March, 1988.

“Nothing there even remotely supports an authorization claim,” Gesell said, agreeing with arguments made by Reagan’s personal attorney, Theodore B. Olson.

“We’re pleased and the order speaks for itself,” Olson said.

Simon, North’s attorney, declined comment.

Gesell agreed with Olson that authorization to lie may not be a defense for lying. “Whether or not authorization is a defense, authorization is not established by atmosphere, surmise or inference.”

The Justice Department had opposed Reagan’s court appearance on the ground that it could have opened the door for questioning about sensitive national security matters.

Gesell acknowledged that there is “understandable public interest” in what Reagan “may have known or may have done.” But he said North’s trial does not involve such a broad inquiry.

“The trial of Lt. Col. North now concerns only his alleged criminal conduct identified in discrete, specific charges.” Three broad conspiracy charges against North involving presidential matters had been dropped, Gesell noted.

The authorization issue was raised specifically during testimony by Robert C. McFarlane, the former national security adviser who was North’s boss.

Accused of Erroneous Claims

In 1985, North sent letters under McFarlane’s signature falsely denying that the National Security Council was involved in soliciting money for the Contras or helping them militarily. North is also accused of making the same erroneous claims to House Intelligence Committee members in 1986.

McFarlane testified that he told Reagan about the congressional inquiries in 1985, pointing out that the White House would be criticized on Capitol Hill regardless of what answers it gave.

McFarlane said Reagan didn’t tell him what to put in the letters but accepted McFarlane’s characterization that criticism was inevitable, and said, “OK.”

McFarlane pleaded guilty to withholding information from Congress in connection with the letters to then-House Intelligence Committee Chairman Lee H. Hamilton (D-Ind.) and then-Rep. Michael Barnes (D-Md.). McFarlane was fined $20,000.

In the 12-count indictment, North also is accused of illegally accepting a $13,800 security system at his home from co-defendant Richard V. Secord, converting to his own use at least $4,300 in travelers checks from Contra leader Adolfo Calero and conspiring to defraud the Treasury of tax revenue in connection with charitable contributions supporting the Contras.