Bush’s Refusal on Notes Not Crime, Experts Say : Iran-Contra: No subpoena was issued. Weinberger says his notes do not contradict President’s account.

President Bush’s failure to turn over typewritten notes requested years ago by independent counsel Lawrence E. Walsh is not in itself the basis for bringing a criminal charge, legal experts said Sunday.

Several legal experts said that Bush’s failure to reveal the notes, which Walsh has characterized as “misconduct,” is not itself a crime because the prosecutor had not formally subpoenaed them under a court order. Failure to comply with a subpoena can be the basis for a criminal contempt charge.

Aides to Walsh said Sunday that they had merely asked Bush to provide any relevant materials. “Had it been necessary for a subpoena, we would have issued one,” said a former aide to Walsh. But subpoenaing White House materials would have opened up the possibility of extended litigation over access to presidential materials, the aides said.

Legal experts, however, said that the contents of the notes--as opposed to refusal to turn them over--could conceivably form the basis of criminal charges. But prosecutors would have to prove that the notes show that Bush engaged in a concerted effort to obstruct justice, the experts said, and that would be a highly complicated charge that is difficult to prove.

In 1987, Walsh requested all of the then-vice president’s notes and documents that related to the Iran-Contra scandal, along with those of other high Executive Branch officials. While Bush turned over his handwritten notes of various meetings, he did not turn over the day-end summaries of his activities, which he began dictating in November, 1986, the month the scandal broke. The existence of these typewritten notes was not revealed to Walsh until Dec. 11 of this year.

Walsh, who responded angrily to Bush’s Christmas Eve pardon of former Defense Secretary Caspar W. Weinberger, over the weekend said he plans to return to Washington this week to consider the next steps in his long-running investigation.

Bush’s failure to reveal the notes earlier “is not a crime in and of itself,” said Georgetown University law professor Paul Rothstein, because the President did not violate any court order.

A former prosecutor, who asked not to be named, agreed. “That act (refusing to turn over notes) is not a criminal violation. Period,” he said.

It remains possible that Walsh could seek an obstruction of justice charge, “but it would take a whole lot more than what I’ve seen so far,” the former prosecutor said. “It is a difficult charge to make out.”

Also Sunday, Weinberger, in his first public explanation of the notes he took during the Iran-Contra period, said that--despite appearances--they do not contradict President Bush’s account of the affair.

Bush has said that he knew about the arms shipments to Iran in 1986 but has maintained that he did not see their purpose as an attempt to gain the release of the U.S. hostages then held in Lebanon.

Just five days before the November election, Walsh’s office revealed a note taken by Weinberger recounting a meeting at which then-President Ronald Reagan decided to “go with the Israeli-Iranian offer to release our 5 hostages in return for the sale of 4,000 TOWS (anti-tank missiles) to Iran by Israel.” The note added that the “VP favored” this deal.

That note was widely seen as contradicting Bush’s statement that he was “out of the loop” when arms-for-hostages deals were being struck. Bush has said that he knew arms were being sold to Iran and that the United States was trying to win the release of the hostages. But he said he did not believe the two matters were directly linked.

Weinberger said Sunday that the notes reflect his view of the deal, not necessarily Bush’s view.

“Whether or not it was arms for hostages is basically a matter of opinion,” Weinberger said on ABC’s “This Week With David Brinkley.” And he added: “I thought it was and I thought it was wrong, but other people had a different view of it.”

In another development, Sen. Carl Levin (D-Mich.) said that he plans a hearing next week to examine the independent counsel law and expects to invite Weinberger and Walsh to testify. Levin’s subcommittee is rewriting the law, which expired earlier this month.

Prosecuting government officials for obstruction of justice has grown more difficult because of legal rulings growing out of the Iran-Contra case. Last year, the U.S. Court of Appeals in the District of Columbia overturned on a 2-1 vote the felony conviction of former Reagan aide John M. Poindexter.

Poindexter had been convicted under a federal law that makes it a crime to “corruptly obstruct” Congress or a federal investigation. He was found to have deceived congressional investigators about Reagan aide Oliver L. North’s activities.

But the appeals court rejected the longstanding interpretation of this law and ruled that making deceptive statements to Congress or a federal investigator is not enough to prove a violation. The opinion was written by Judges Douglas H. Ginsburg and David Sentelle, both appointees of Reagan.

Walsh appealed the ruling to the Supreme Court, calling it “astonishing.” The decision “leaves a large gap in . . . the criminal prosecution of a substantial range of wrongful conduct,” Walsh said.

Nonetheless, the justices refused to hear his appeal in recent weeks, leaving the appeals court ruling as the law, at least in the District of Columbia.

That decision “makes it substantially more difficult” to prosecute Bush if his notes were to show that he had deceived prosecutors five years ago, Rothstein said.

Of course, Walsh is expected to continue to make his case in the court of public opinion. He is required by law to issue a detailed final report that will sum up his investigation. It is likely to attack Bush for not revealing his notes sooner and for pardoning Weinberger on the eve of his trial.

Times staff writer Ronald J. Ostrow contributed to this story.