The Prosecution Never Rests

The Prosecution Never Rests

The Prosecution Never Rests

Reading between the lines.
June 4 1997 3:30 AM

The Prosecution Never Rests

The inextinguishable Lawrence Walsh.

Firewall: The Iran-Contra Conspiracy and Cover-Up
By Lawrence E. Walsh
W.W. Norton; 544 pages; $29.95

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There is no such thing as eternal life in politics--unless, that is, one is lucky enough to secure appointment as an independent counsel. In that case, a lawyer is free to investigate more or less whatever catches his fancy, for as long as he likes, spending as much of the public's money as he deems necessary. The passing of a petty scandal, the resignation of a target, even a change in administrations is no obstacle, as we know from the many barnacle-encrusted investigators still hanging on. Kenneth Starr, who has been poking into Whitewater for three years, is the least of them. One special prosecutor is still deciding whether to prosecute Henry Cisneros, the former housing secretary, for understating payments to an ex-mistress. Another has spent four years trying to nail long-departed Agriculture Secretary Mike Espy for accepting free football tickets from a poultry company. There's even a counsel, holed up somewhere in Washington, who is still on the verge of cracking the Department of Housing and Urban Development scandal, which dates from two administrations and more than 10 years ago.

Jacob Weisberg Jacob Weisberg

Jacob Weisberg is chairman and editor-in-chief of The Slate Group and author of The Bush Tragedy. Follow him on Twitter.

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Independent counsels go on forever because they can--no one has the power to fire them--and because they have strong incentives to do so. An ordinary prosecutor may decide to forgo charges so that he can devote his energies to a case that is more important and easier to win. But, for the independent counsel, there is no other case. Were he to announce that his scandal didn't justify criminal proceedings after all, he would be declaring himself a failure who had wasted the public's time and money. After he returned to his law practice in the sticks, no one would ever hear from him again. Much better to keep digging, declare that indictments are just around the corner, and hold off on releasing that final report just a few months longer.

In retrospect, it seems obvious that combining these structural pressures with the lugubrious personality of Lawrence Walsh was a recipe for zombification. Coming out of semiretirement in Oklahoma City, Judge Walsh was 75 years old when he was handed responsibility for bringing to justice the perpetrators in the Iran-Contra scandal. For an ambitious man who had been frustrated in his career, the appointment was a heaven-sent extra chance, and it appeared at first to be a bit of brilliant casting. In his three-piece suits and high, starched collars, Walsh looked like a 19th century Presbyterian minister, radiating an unflinching, humorless rectitude. He was the perfect foil for Marine cowboy Oliver North. The problem is that the image was too close to reality. Walsh was a maddening plodder and a stickler for detail, with no ability to play politics or work the media. Faced with a public-relations challenge that might have daunted the most seasoned Washington operator, he responded the only way he knew how, by trudging onward. Like a pit bull on Prozac, he clung to the trousers long after the leg was gone.

The leaden account Walsh has produced more than a decade later reflects in microcosm most of the foibles that afflicted his investigation. As a piece of writing, it is repetitive, unfocused, and confusing. It feels like it goes on for seven years. There are no surprises and no original ideas. Walsh's theory of the Iran-Contra scandal--that some members of the Reagan administration tried to do an end run around the Constitution--is not very novel. But rather than presenting his case to the reader, Walsh remains obsessed with the minutiae of what went wrong when he tried to make his case in court. Matters of subdoctoral interest, such as his office's battle for Iranian arms dealer Albert Hakim's Swiss-bank-account records, fill chapter upon chapter. In his litigious thickets, Walsh loses sight of the question of why anyone should still care.

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W alsh quite rightly points out that his investigation was undermined at the outset by the congressional Iran-Contra committee's decision to grant immunity to Oliver North and White House National Security Adviser John Poindexter who, along with the conveniently deceased CIA Director William Casey, appear to have been the chief conspirators in the plot. Despite the extraordinary efforts of Walsh and his staff to insulate themselves from the immunized testimony, the unavoidable tainting of the prosecution's case provided a basis for the U.S. Court of Appeals to throw out North's and Poindexter's convictions. Walsh's first mistake, which he acknowledges, was not pitching a fit to try to prevent Congress from granting immunity to the chief protagonists. His second mistake, which he does not acknowledge, was failing to admit defeat after the grants of immunity predictably ruined his case. Once the North and Poindexter convictions were thrown out, there was little point in his trying to lock up other officials whose behavior, while far from exemplary, was neither venal nor as outrageous as that of the ringleaders going free.

It is at the point when the initial convictions were reversed, around 1990, that Walsh seems to lose touch with his judiciousness, if not his deliberateness. Instead of conceding, he redoubles his efforts. As he keeps missing his targets, he takes aim at less and less compelling ones, desperate to convict someone, anyone, of something. In 1991--five years after the scandal broke--he contemplates charging former Secretary of State George Shultz with lying to Congress. This was simply foolish. Shultz, who opposed the original arms-for-hostages deal, was the closest thing to a conscience inside the Reagan administration's foreign-policy team. Belatedly persuaded that he can't convict Shultz, Walsh decides to go after former Defense Secretary Caspar Weinberger instead for concealing the existence of some of his personal notes. But Weinberger, like Shultz, was far from a black hat in the affair; he too had opposed the arms-for-hostages deal. Indicting him was an exercise in prosecutorial pique, doomed to fail. After the 1992 election, when the lame-duck George Bush pardons Weinberger, Walsh is truly overtaken by rage, and considers going after the ex-president himself for obstructing justice. By the end of his book, Walsh has unwittingly painted himself as Ahab without a whale, flailing after targets large and small in his attempt to vindicate his effort.

Of course, Walsh never went after the biggest fish of all--Ronald Reagan. Though he was still thinking about indicting Reagan in late 1992, Walsh never found effective proof that Reagan was lying when he testified that he hadn't known about the diversion of profits to the Contras. Walsh's theory--again, not a novel one--is that the president's aides successfully constructed a "firewall" to prevent Reagan from being implicated in the scandal. If this conspiracy worked the way that Walsh thinks it did, it has yet to crack. Walsh contends that Reagan must have known about the diversion because he chose to persist with the policy of arms for hostages, even though most of the American hostages in Lebanon were not released in exchange for the missiles that were shipped to Iran. This is a pretty slim reed to hang Reagan on; he was clearly obsessed with the hostages, and clung to any hope of setting them free. And indeed, three of seven were released in apparent conjunction with the arms sales, which does not constitute an overwhelming failure, however wrongheaded the arms-for-hostages policy may have been.

With hindsight, the whole issue of what Reagan "knew" seems more a metaphysical question than a legal one. Though Reagan may well have been informed of the diversion at some point, he was probably sufficiently gaga by 1987 and 1988 that he did not really hold the information in his head in any meaningful way. Interviewed on videotape as a defense witness in the 1990 Poindexter trial, Reagan presented a sorry spectacle, unable to recall his own foreign policy beyond generalities. Walsh doesn't seem to grasp that Reagan is losing it. He clings to the maddening inconsistencies in the former president's answers as if they actually meant something. In 1992, Walsh flies to Los Angeles to grill him one more time. Reagan points at sights outside the window and tries to remember irrelevant anecdotes about Mikhail Gorbachev and Margaret Thatcher. This is the only poignant moment in the book; Reagan has evidently let go. Perhaps now that he's set his frustrations down in a book, Lawrence Walsh will be able to do the same.