Independent Counsels at a Glance
By Arthur L. Liman
Sunday, August 16, 1998
At a time when Washington is saturated with scandal,
The Iran-contra scandal burst upon the scene in November 1986 when it was first reported in a Lebanese newspaper that President Ronald Reagan had approved the sale of missiles to Iran in exchange for American hostages in Lebanon. Later, Justice Department lawyers found evidence that proceeds from the arms sales had been diverted to illegally fund the contra anticommunist guerrillas in Nicaragua in circumvention of the Boland Amendment banning U.S. aid to the rebels. It was an audacious, covert scheme -- known by its participants as "the Enterprise" -- carried out largely by a small group of top administration officials and private operators without the knowledge of Congress. And when it began to unravel, the foremost question congressional investigators faced was the classic one echoing from the days of Watergate: What did the president know and when did he know it?
Liman died last year before Whitewater metamorphosed into Monicagate, but he almost certainly would have stuck to the view expressed in his memoirs that the high crimes and misdemeanors alleged in Iran-contra posed a far more serious threat to American democracy and our system of checks and balances. Even Watergate -- a bungled burglary followed by a White House-orchestrated coverup -- was less threatening, Liman argued. He saw Iran-contra as a deliberate effort to conduct foreign policy in secret by using a private organization motivated by profit and accountable to no one. Whitewater, by contrast, involved mainly pre-presidential financial activities that posed no constitutional issue or question of presidential accountability, according to Liman, who said the country could not afford to incapacitate a president by a drawn-out investigation that questioned his legitimacy.
While 28 witnesses appeared, it was the testimony of Vice Adm. John Poindexter and North in July 1987 that was the most dramatic and crucial, as Liman recalls in the following excerpt:
FROM THE FIRST DAY I MET HIM, I knew it was John Poindexter, not Oliver North, who held Ronald Reagan's fate in his hands. North was the more colorful by far, but I wanted Poindexter as a witness.
Poindexter served as national security adviser to the president from December 1985 until his dismissal when the Iran-contra story broke a year later. Before that, he was the assistant national security adviser under Robert "Bud" McFarlane. He had briefed the president every morning on matters affecting national security. Among the topics were the missile sales to Iran and the secret support of the contras. More than anyone, indeed even more than Reagan himself, he knew what the president was told and what the president had authorized.
Questioning Poindexter was the decisive moment of our investigation. If he implicated Reagan -- in the diversion or in the later coverup, or both -- impeachment proceedings were a virtual certainty. Because of this, I wanted to hear his story before we began the public hearings in May 1987. But examining Poindexter, even in private, presented a problem. Lawrence E. Walsh, the independent counsel, wasn't finished with his investigation of Poindexter by early May, and he said he needed several more months. If Poindexter's private testimony were somehow leaked and became public, it could taint what the independent counsel took subsequently from other witnesses and make it impossible for him to prove that his evidence against Poindexter didn't derive, even indirectly, from the private testimony.
The Senate select committee came up with an ingenious solution.
In order to prevent leaks, I would take Poindexter's testimony in private before the public hearings and share the results only with John Nields, chief counsel for the House select committee. No member of the Senate or House committees would be privy to what Poindexter said, unless I concluded that his testimony gave us evidence warranting the impeachment of the president.
In this case, and this case only, I was to report to Sens. Daniel Inouye (D-Hawaii) and Warren Rudman (R-N.H.) so that the impeachment process could begin promptly. On the other hand, if I concluded, after listening to Poindexter, that there was insufficient basis for impeachment, no member of the Senate or the House would be told the contents of the deposition.
I doubt that any counsel to any congressional committee had ever been entrusted with such responsibility, and it weighed heavily on me. Not that I was unused to pressure. I'd tried cases in which huge amounts of money were at stake, and I'd defended clients facing the loss of liberty. But nothing prepares a lawyer for conducting an examination in which the impeachment of a president turns on the outcome.
I had no idea, either, what Poindexter would say. Would he distance himself from North? Would he claim he was out of the loop on North's activities concerning the diversion of funds, that it was all North and CIA Director William Casey? And what of the president? What of the shredding of documents and the coverup? McFarlane, for example, had maintained that he was unaware of how far North had gone. Wouldn't Poindexter try to do likewise, particularly since he could be prosecuted if he'd participated in any criminal activity?
We scheduled Poindexter's examination on a Saturday, May 2, to ensure secrecy. The questioning itself took place inside the "bubble," a special high-security, eavesdropping-proof metal shell that the government had required us to install in our office. The bubble supposedly couldn't be penetrated even by the most sophisticated electronic listening devices.
To keep the very fact of his examination secret, we arranged for Poindexter to be spirited in and out of our offices with his attorney. I would arrive at 7 a.m., three hours before.
Inouye was out of Washington that weekend, so it fell to Rudman, as vice chairman of the committee, to administer the oath to Poindexter and read him an order granting him limited immunity in exchange for his testimony. Rudman came to our office shortly before the scheduled start of the deposition, and we waited together.
Then Poindexter arrived with his lawyer. We greeted one another stiffly and without pleasantries. Poindexter was dressed in civilian clothes and held a pipe in his mouth throughout. With his rimless glasses and his pipe, he was bookish-looking -- more professorial than military. He never once smiled, never exhibited the slightest warmth.
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