Reagan Data Ruling May Be Challenged : Iran-Contra: The Justice Dept. may test a decision allowing subpoena of the former President’s notes for the trial of John M. Poindexter.

The Justice Department raised the possibility Wednesday that it might challenge a federal judge’s ruling that former President Ronald Reagan’s notes and diaries on Iran-Contra events can be subpoenaed for the trial of his former national security adviser, John M. Poindexter.

Department lawyers are reviewing the 67-page ruling of U.S. District Judge Harold Greene, said David Runkel, the department’s chief spokesman. He added that Greene’s ruling Tuesday “does raise a serious question regarding the institution of the presidency.”

Runkel declined to pinpoint the “serious question” that was raised, but presumably he meant that the ruling threatens the privacy of a former President’s notes and diaries.

Any move to head off the subpoena could raise questions left open by the Supreme Court’s 8-0 ruling in 1974 requiring former President Richard M. Nixon to surrender tapes of his conversations for the criminal trial of several of his aides.

The decision recognized a “constitutionally based” executive privilege covering presidential materials, but said in the Watergate coverup case that it “must yield to the demonstrated specific need for evidence in a pending criminal trial.”

Runkel made clear that the department would make no move without consulting with Reagan’s personal attorney, Theodore B. Olson, who headed the Justice Department’s office of legal counsel during Reagan’s first term.

Greene’s ruling first will be reviewed by the department’s criminal division and then by Atty. Gen. Dick Thornburgh’s office, Runkel said.

Olson declined comment Wednesday but it is clear that he or the department would not move to quash a subpoena until it is issued by Greene for specific materials.

Although Greene ruled Tuesday that Poindexter can subpoena Reagan documents, Poindexter’s lawyer still must submit subpoenas to Greene for “specific, relevant documents” in the custody of Reagan or the U.S. archivist. The material must be requested by Nov. 23--60 days before the Jan. 22 trial date set for Poindexter.

Greene made his decision on the basis of a sealed claim submitted to him by Poindexter setting out the reasons for which he needs Reagan’s diaries and notes. Greene made public Tuesday only that part of Poindexter’s claims that were necessary to explain the logic of his ruling.

He cited Poindexter’s claim that he frequently met alone with Reagan and routinely discussed national security matters with him, including various aspects of what became the Iran-Contra scandal.

Reagan and others took notes on these conversations and these notes or Reagan’s diary entries “would support his defense to the charges in the various counts of the indictment,” Poindexter said in his submission to the judge.

Reagan’s personal notes were examined under tight limits by the presidential commission headed by former Sen. John Tower (R-Tex.) that evaluated the White House national security mechanism as it operated in Iran-Contra, and by the congressional committees that investigated the matter. But these panels did not have Poindexter providing a roadmap of what he sees as Reagan’s involvement and knowledge of the matter.

Philip A. Lacovara, the former Watergate special prosecution force lawyer who argued the Nixon tapes case before the Supreme Court, said Wednesday: “I can’t imagine why the privacy of an ex-President’s notes would be higher than that of an incumbent President.”