Readers of this space are hardly surprised to see Lawrence Walsh's Iran-Contra prosecutions crumble like castles in the sand. He has now lost the two major cases to reach the appeals court, with more legal defeats likely soon. Independent counsel Walsh--independent, that is, from experienced prosecutors at the Justice Department--has become a multimillion-dollar legal disaster area.
Mr. Walsh was especially busy last week. He asked the full appeals court in Washington to review the appeals opinion that seems likely to reverse all of Oliver North's convictions. Mr. Walsh does not want to accept that he violated the Constitution when he used evidence from Mr. North's coerced testimony to Congress, despite the clear rule that such evidence can't be used at trail. The same mistakes probably will also reverse John Poindexter's conviction.
Part of Mr. Walsh's enormous prosecuting team is in Baltimore trying a former CIA official, Thomas Clines. This case may also be headed for a fall. The charges against Mr. Clines, an Iran-Contra middleman, have nothing to do with the original allegations of supposedly illegal arms trades or the diversion of money from the Iranians. Instead, Mr. Walsh accuses him of failing to report all taxes owed on his covert income.
There are many problems with this case, including precisely how are private contractors, asked by government officials to play middlemen roles, supposed to account for secret income on their tax returns. Taxes owed surely must be paid, but Mr. Walsh's lead witness, Richard Secord, shocked the proceedings when he said the prosecution case rests on evidence that had somehow been falsified.
What especially piqued our interest in this case, however, was that Mr. Walsh brought it as a tax case. Federal criminal tax cases are fewer than 1,500 a year. There is strict oversight because of the real danger of selective tax prosecution.
Indeed, the Justice Department Guidelines for U.S. Attorneys requires prosecutors to get prior approval for any criminal tax case from the tax division of Justice. U.S. Attorneys Manual Section 6-4.122 says even independent counsel must not bring an indictment `without specific prior authorization of the Tax Division.'
Did Mr. Walsh get approval from Justice before indicting Mr. Clines? When we asked, Mr. Walsh's press spokesperson refused to comment. Justice spokesmen, however, say that Mr. Walsh did not consult the department before bringing any of the Iran-Contra cases. In other words, Mr. Walsh apparently did not follow Justice rules before charging Mr. Clines. This could be a ground for an appeal from any conviction.
This was not the first time Mr. Walsh ignored Justice guidelines that apply even to independent counsel. Last week he got confirmation from a federal appeals court that his case against former CIA agent Joseph Fernandez was an abuse from day one.
He indicted Mr. Fernandez, the former agency chief in Costa Rica, for giving misleading statements about his role in Iran-Contra. The supposed misstatements about who did what to help the Contras were not under oath or part of any transcript, but Mr. Walsh had an even bigger problem. To show that his statements were true, Mr. Fernandez needed to cite some 100,000 classified documents.
Mr. Walsh ignored the Justice Department rule that prosecutors considering indictments in cases involving classified material must first consult with the intelligence agencies. Instead, Mr. Walsh brought the indictment, then when intelligence officials screamed about the sources and methods that would leak if there was a trial, he dismissed this as `fictional secrets' and `artificial deniability.'
Mr. Walsh, no national-security expert, was wrong. Trial Judge Claude Hilton agreed with a classified filing by three top intelligence officials who warned of `exceptionally grave damage' if these secrets got out. Last week a unanimous appeals court agreed that there can be no trial. The detailed opinion by Judge J. Harvie Wilkinson itself was full of asterisks marking sensitive material, as in `although the * * * * program and the * * * * `may not have been as closely tied as * * * *,' they were still relevant to the charges against Fernandez and thus were admissible.'
The criminalization of policy differences known as Iran-Contra has been a flop. President Reagan was not impeached, Nicaragua is inching toward freedom and Iran remains in the feudal era. At home, we have learned that institutional pressures on congressionally created independent counsel have forced many of them to push the outer envelope of prosectorial behavior. Mr. Walsh has left no doubt that his targets were prosecuted to the extent the law allows, and as we now know even beyond.
Enough is enough. There is a long rap sheet against Mr. Walsh: He violated immunity rules in the North and Poindexter cases; violated tax rules in the Clines case; violated classified information rules in the Fernandez case. How much more evidence does President Bush need before deciding it's time to thank him for his services and sent Mr. Walsh home?