Reagan Told He Must Testify Via Videotape

A federal judge on Monday ordered former President Ronald Reagan to give videotaped testimony as a defense witness in the Iran-Contra trial of former White House National Security Adviser John M. Poindexter.

U.S. District Judge Harold H. Greene brushed aside Reagan’s claim that the dignity of the presidency would be damaged by requiring a former President to give evidence against his will. “It would not be fair . . . to refuse (Poindexter’s) request for the testimony of the former President under whose direct supervision he was working” at the time he is accused of committing five felonies, Greene said.

Poindexter “is fighting for his reputation and his liberty,” the judge added. “To have a fair chance in that fight he must have appropriate scope in attempting to penetrate the traditional presidential curtain.”

At the same time, the judge rejected Poindexter’s request to require Reagan to testify in person in the courtroom because he said the former President might inadvertently blurt out national secrets. He said the videotaped deposition could be edited to eliminate any problems of national security.

“In the exceptional circumstance of testimony by an individual who was the President of the United States until a little more than a year ago, it is best that . . . testimony (be) taken in more private surroundings than a courtroom where the inadvertent disclosure of sensitive information would be beyond recall,” Greene ruled.

Greene also renewed his order to Reagan to turn over portions of his diary to Poindexter’s lawyers, rejecting a request for delay which was filed Friday by the Bush Administration.

Under Greene’s original order, Monday was the deadline for Reagan to surrender the papers. However, shortly before the courthouse closed for the night Monday, Reagan’s attorney filed a new motion asserting that the diary was protected by “constitutionally protected privacy.”

Reagan’s lawyer, Theodore B. Olson, argued that “Former President Reagan has not only the right to request privacy for his personal reflections, but a duty to the presidency and, as a surrogate for future presidents, to ensure that presidential diaries remain entitled to the fullest protection the Constitution affords.”

However, Olson’s motion did not contain the words “executive privilege.” The former President has been reluctant to invoke that doctrine, presumably because it is inseparably associated in the public mind with former President Richard M. Nixon and the Watergate scandal of the early 1970s. In effect, Olson asserted that Reagan has constitutional rights to privacy which go beyond executive privilege.

Greene, both in his Monday order for videotaped testimony and in his earlier order for Reagan to turn over the diary excerpts, noted that the former President had not claimed executive privilege. The judge said he would seriously evaluate any executive privilege claims Reagan may make in the future, but he gave no hint as to how he would rule on them. The judge’s decision, issued before Olson filed his latest motion, did not deal with the lawyer’s argument that Reagan can protect the papers without specifically claiming executive privilege.

“If such a claim (of executive privilege) is made, Mr. Reagan will be required to testify only if the court rules at that time that (Poindexter’s) need for the information outweighs the claim of privilege,” Greene said.

The judge was careful to avoid making such a determination in advance. But he noted that Reagan has already provided a great deal of information about the Iran-Contra affair to the Tower Commission, the independent counsel’s office and a grand jury. The information turned over earlier weakens Reagan’s case for executive privilege, Greene said, because it “surely demonstrates a diminished expectation of confidentiality.”

In a written statement, Mark Weinberg, Reagan’s spokesman in California, said the former President was determined to avoid surrendering the diaries.

“While it might be politically expedient for President Reagan to submit the diary excerpts, it would be incompatible with his responsibility as a former President to the institution of the Presidency,” Weinberg said. “Unless he takes reasonable steps to ensure that the privacy of these diaries is not invaded unnecessarily and without a proper need for them, future presidents may be inhibited in maintaining personal diaries for their own reflection and personal deliberation.”

Weinberg added that because Greene’s order for videotaped testimony was being evaluated by Reagan’s lawyers, he would not comment on it. Olson also declined to comment.

In a separate action, Iran-Contra special prosecutor Lawrence E. Walsh urged U.S. District Judge Aubrey E. Robinson to reinstate 11 charges against former Maj. Gen. Richard V. Secord which were dismissed after Secord pleaded guilty to a single count as a result of a plea bargain. Walsh said Secord had committed “an act of bad faith” and violated part of the bargain by appealing his sentence of two years’ probation and a $50 fee.

Walsh said the 11 other counts should be kept on the books until he had a chance to decide if Secord’s appeal warranted canceling the bargain and bringing Secord, who served as a middleman in the sale of arms to Iran, to trial on all of the original counts.

In the ruling regarding Reagan, Greene said the former President’s testimony must be videotaped before the Poindexter trial, set to begin Feb. 20, gets underway. The judge said he would preside at the videotaping session, ruling on objections that might be imposed by lawyers on either side. He said the testimony would remain secret until the tape is played for the jury at an appropriate time in the trial.

Poindexter’s lawyers submitted a list of 183 questions they wanted to ask Reagan. Greene ruled that 29 of the questions were irrelevant, but he said the other 154 could be put to the former President. Follow-up questions would be permitted, but no other subjects could be introduced, the judge said.

Greene said the approved questions fall into 12 broad categories, including Reagan’s knowledge regarding shipment of missiles to Iran and Reagan’s understanding of the Boland Amendment prohibiting U.S. aid for the Contra rebels in Nicaragua. Also included are discussions Reagan had with Central American leaders concerning aid to the Contras, and discussions between Reagan and Poindexter over actions that might be taken if Congress continued to refuse to aid the Contras.

Other categories for questioning, Greene said, include Reagan’s knowledge of the relationship between former Lt. Col. Oliver L. North and specific individuals involved in Iran-Contra activities, and Reagan’s instructions to Poindexter concerning communications with Congress.

Poindexter is facing five counts of obstructing Congress, making false statements and conspiracy.

Said Greene: “Although (Poindexter) might not have a valid defense based directly on the claim that his illegal activities, if any, were known to the (former) President, the fact of the President’s knowledge of, and apparent acquiescence in, such activities--if that is what occurred--would be material evidence, for it would bear on (Poindexter’s) specific intent to commit various offenses”