COLUMN RIGHT : Don’t Make a Dreyfus of Oliver North : A retrial would not enhance public understanding of the Iran-Contra affair.

Independent Counsel Lawrence E. Walsh should drop further prosecution of Oliver L. North in the wake of Friday’s appellate court decision that tossed out North’s conviction on one charge and called for a review on two others. Any attempted retrial would smack of Shylock’s uncivilized “pound of flesh,” not Portia’s recognition in “The Merchant of Venice” that mercy should season justice. And dropping the case would teach Congress a lesson, namely, to resist the political temptation in celebrated public inquests to grant witnesses immunity in criminal proceedings that are still open.

In July, 1987, the congressional inquisition into the Iran-Contra affair focused on North before his indictment in federal court. The Iran-Contra committee was repeatedly warned that severe constitutional problems in prosecuting North would be engendered if he testified under a grant of immunity in public sessions broadcast to the world. Seeking to tarnish the popularity of President Reagan and besmirch the reputation of North, the committee chose publicity and immunity overthe prudent options of closed investigatory sessions or a delay until after any criminal actions had concluded.

After the hearings, Walsh conducted a gold-plated scrutiny of North costing $10 million to $20 million. The result was North’s conviction last year on three charges: destruction of National Security Council documents; aiding and abetting superiors to mislead Congress, and accepting an illegal gratuity, a $13,000 home-security fence. North was fined $150,000 and sentenced to two years’ probation and 1,200 hours of community service.

By a 2-1 vote, the appellate court reversed North’s conviction on destruction of documents, holding that the trial jury had been erroneously instructed on the elements of that crime. In addition, the majority declared, trial Judge Gerhard A. Gesell had been remiss in failing to hold meticulous hearings to ensure that no juror, witness or any member of the prosecution team had been influenced by North’s immunized statements. Gesell was instructed Friday to conduct such a hearing, and if immunized testimony had tainted the other two verdicts, North’s conviction would be invalid on those as well.

Common decency and the purposes of criminal law should dissuade Walsh from seeking to challenge Friday’s decision.

North’s travails epitomize prosecutions that are tantamount to political persecutions. If President Reagan’s arms-for-hostages gambit had achieved complete rather than partial success, and if his unbounded support for the Contras had lead to victory a few years before Violetta Chamorro toppled the Sandinistas from power in Nicaragua, then North would never have been enmeshed in the criminal law. North was the scapegoat for President Reagan’s political missteps, and he skated no closer to legal lines than did numerous esteemed officials in Franklin D. Roosevelt’s Administration who repeatedly circumvented neutrality laws to bolster Britain against Nazi Germany. There is a difference in treatment because Roosevelt’s war policies were quickly and thoroughly vindicated, whereas Reagan’s initiatives were initially perceived as fiascoes.

What legitimate purpose would be served by a retrial? It would not enlarge public understanding of the Iran-Contra affair. It would advance no deterrent objective. North has already performed community service, and is an improbable candidate for future White House employment. His four-year ordeal with criminal justice entailing millions of dollars in attorney fees and a tarnished reputation would deter any of his successors on the National Security Council from contemplating a reprise of his indiscretions.

Retribution also is no justification for a retrial. The public is not clamoring for Ollie North’s neck. His motivations were patriotic and unselfish, not morally condemnable. He was only a tool in the hands of superiors to deceive Congress and undermine precious trust between the executive and legislative branches.

Walsh’s natural inclination will be toward retrial because of the expense incurred in bringing North into his clutches and a belief that a conviction will yield history’s remembrance. But Walsh would earn a chapter in “Profiles in Courage” if he conceded the senselessness of retrial. Renewed prosecution would be the American equivalent of the Dreyfus case, and would be similarly denounced by history.