Good Golly, Mr. Ollie : OPENING ARGUMENTS: A Young Lawyer’s First Case: United States v. Oliver North, <i> By Jeffrey Toobin (Viking: $22.95; 384 pp.)</i>
Like some comet crossing the sky with its tail of flame, this book by a junior member of the special prosecutor’s team involved in the investigation and trial of Lt. Col. Oliver North comes to us trailing the fire of ongoing controversy concerning its creation.
When Jeffrey Toobin, a recent graduate of Harvard Law School now a federal prosecutor in Brooklyn, submitted his manuscript for clearance to his former superiors, the Office of Independent Counsel Lawrence E. Walsh responded with threats that Toobin would face legal jeopardy for revealing secret materials. Toobin and his publisher, Viking, then launched a preemptive lawsuit in New York City, and Federal Judge John Keenan ruled that virtually all of the hard information in “Opening Arguments” had already come to public light and was not, therefore, a legally protectable secret.
Toobin’s victory, however, was not total. Walsh has appealed; Judge Keenan left open the question of whether Toobin’s writings violated legal ethics, and an editorial writer in the New York Times, where zeal for the First Amendment generally knows no bounds, blasted Toobin as “opportunistic,” noting that “lawyers often write self-praising books, but they don’t usually betray clients and bosses or spill secrets that aren’t theirs to sell.”
Whether Toobin was right or wrong to write this book, or to publish it now, are questions that will be settled elsewhere. What can be said with conviction is that this book is absorbing and a great pleasure to read. Trial buffs, Iran-contra junkies, lawyers or law groupies--anybody who watches “L. A. Law,” in fact--are likely to find “Opening Arguments” irresistible. The book is stylishly and fluently written, with an enormous forward momentum, a dexterous explanation of legal matters and a quick wit. (Toobin traveled to woo his wife “courtesy of . . . the late (often very late) lamented People Express airline.”)
The subtitle here--"A Young Lawyer’s First Case: United States v. Oliver North"--is a bit misleading. Toobin did not utter a single word in court during the North trial and was not even at the prosecutors’ table. But he did have a front-row seat at the Office of Independent Counsel (OIC) and the book offers a revealing glimpse of the intense investigations that led to the indictment of North and his alleged co-conspirators, and the Himalayan-like obstacles posed, especially by Congress’s grants of immunity to North and others and by the occasionally ridiculous way national secrets are classified. Toobin’s description of the North trial itself is splendid reportage , alert to the battle tactics of each side, the subtle dynamic that is always at work among the myriad players--prosecutor, defense lawyer, witness, defendant, judge--and the always intriguing way that personality manages to emerge on the witness stand.
For those who feel they never quite understood Iran-contra (who did?), the book also provides a particularly accessible avenue into the entire Byzantine mess and a realistic appraisal of how far the blame spread.
Basically, in 1984 the Democratic Congress forbade the Reagan Administration to provide further military funding to the contra rebels fighting the Sandinista regime in Nicaragua. North’s mission in life--and that of many others for whom he worked--became circumventing this law. North organized donations by private citizens and foreign governments into secret Swiss bank accounts, which were used to buy the military toys the contras desired. And when the United States in late 1986 engaged in a complex and ill-fated attempt to secure the release of various American hostages in the Middle East by allowing Iran to buy arms, North arranged to have the profit on this dubious transaction diverted to the contras as well.
Not surprisingly, this is a book unlikely to be hailed by members of the Oliver North Fan Club. For the moment, mid-course in the appellate process, North’s conviction stands reversed, because the U.S. Court of Appeals in Washington held, 2-1, that the trial judge did not do enough to ensure that North’s immunized testimony before Congress had no influence on the trial. But no man is seen more darkly than by the prosecutor who hoped to throw him in jail, and in these pages North emerges as a jury of his peers found him beyond a reasonable doubt to be: a man who willfully lied to Congress when the truth began to leak out, who shredded documents willy-nilly, and who had corrupted himself long before.
Toobin makes a convincing case that in spite of his flag-waving and preening, Oliver North had his hand in the cookie jar. The arms merchants whom North favored paid him off handsomely, not only with a $14,000 security system he was found guilty of accepting but also, Toobin suggests, with cash and a $200,000 “insurance fund” settled in the Swiss banks and intended for North.
With all of that said, it is still easier to admire Toobin’s authorial skill than his judiciousness. Toobin claims that he joined the OIC prepared for “a crusade” and learned instead that the criminal justice system operates only to establish the guilt of individuals for narrow offenses. But too many of Toobin’s opinions still have a callow cocksureness in which he seems to believe that he alone occupies the moral high ground. He is unsparing about virtually everyone whom he encountered--colleagues, opponents, bureaucrats.
Even Walsh, whose dedication to his duties Toobin seemingly admired, is described as tight-fisted in sharing power and icily remote, a man with “disdain for quotidian human contact.”
Personal characterization aside, it is not hard to see what bothered Walsh’s office about this book. Though the circumstances may make it lawful for him to do it, Toobin still reveals much that prosecutors ordinarily keep to themselves: the lawyers’ frank evaluations of witnesses (Fawn Hall, North’s now-famous secretary, “had a poor memory and details of her story often changed with each telling”), and even the admission that many members of the OIC doubted the legal underpinnings of at least two of the counts brought against North. These kinds of private ruminations about tactics and strategy are generally exempt from disclosure while a case remains pending, if for no other reason than that they may help the other side.
And it is only Toobin’s colleagues who have cause for distress. Toobin discloses why the OIC did not seek to bring charges for lying to Congress against former Assistant Secretary of State Elliott Abrams. The explanation is revealing: Abrams corrected himself on the eve of important revelations by the L.A. Times, and the prosecutors could not show that he knew they were coming. But in explaining, Toobin privately utilizes information he gained as a prosecutor and deprives Abrams, a man whom the OIC could not prove guilty, of the right to claim “vindication” because he was not charged, a right Toobin is aware of and admits he “didn’t enjoy.”
Also questionable is the treatment of Robert MacFarlane, the former national security adviser to President Reagan and North’s boss, who attempted suicide when the scandal broke. In an ill-advised deal, the OIC allowed MacFarlane to plead guilty to four misdemeanors, then called him to the witness stand in the North case, where he was unrepentant and evasive. Worse, the negligible punishment given North’s immediate boss virtually guaranteed that North himself would be sentenced to probation.
In reprisal, Toobin denounces MacFarlane as “among the most culpable for the Iran-contra crimes” and resorts to virtual name-calling, referring to “scumbag witnesses” when discussing MacFarlane’s testimony, and stating that MacFarlane was “unwilling and perhaps even incapable of distinguishing truth from fiction.” A defendant who plea-bargains believes he has sealed a deal with the prosecutors to put an end to his jeopardy from the government. Thus, the kind of public character-lashing Toobin delivers to MacFarlane is, to say the least, something most defendants have not bargained on.
These are a lawyer’s misgivings. The national interest in these matters may justify Toobin’s deviation from the usual course, and even if not, they do not deprive this book of its liveliness or its value. The question in the end, though, is whether Mr. Toobin, who is brilliant and gifted as both a lawyer and writer, is equally wise.