Iran-contra figure Albert A. Hakim's testimony this week about a $200,000 fund he set up for the benefit of then-National Security Council aide Oliver L. North's family raises several legal issues.
They involve questions of what constitutes an illegal payoff and whether traditional legal privileges can be overcome in search of evidence of potential crimes.
The main legal question underlying Hakim's testimony is whether his plan to set up the death benefit for Lt. Col. North's family amounts to a criminal offense under federal bribery laws.
Congressional investigators said yesterday they are considering whether to seek the testimony of North's wife, Betsy, about the meeting she attended in Philadelphia last year with Hakim's Swiss financial adviser and lawyer Willard I. Zucker. It is not clear whether she could claim a marital privilege against testifying.
Likewise, Hakim declined to waive his claimed privilege under Swiss secrecy laws to allow the committees to question Zucker about the same meeting, raising the question of whether foreign privilege laws are applicable.
In another matter, Hakim declined to answer questions about a meeting he held last fall with North; his business partner, retired Air Force major general Richard V. Secord, and attorney Thomas C. Green. He did so on the grounds of another longstanding privilege -- between attorney and client. Here the question is: Does the privilege apply with multiple clients?
Legal experts contacted yesterday agreed that Hakim's testimony raised the possibility that North, Hakim and Secord could be liable for prosecution for receiving or offering an illegal gratuity.
The law covering government officials states that anyone who directly or indirectly offers or "receives or agrees to receive anything of value for himself for or because of any official act" could be prosecuted.
Philip A. Lacovara, who worked on the Watergate special prosecutor's force and briefly as chief lawyer for a congressional investigation of Korean influence-buying, said yesterday that the gratuity charge is easier to prove than bribery because a prosecutor doesn't have to prove a corrupt intent or show that the official did anything different than his normal duties.
"If he gets a bonus from someone else for performing a hazardous duty for the United States, he might run afoul of the law," Lacovara said.
On the issue of seeking evidence from North's wife, Lacovara said that Congress has never agreed to be bound by common-law privileges used in the criminal courts.
He said, however, that "it is dubious form to intrude into marital relationships. My advice to the committee would be to seek her testimony only as a last resort."
Andrew L. Frey, who represented the Justice Department in criminal cases before the Supreme Court for 13 years before entering private practice, said federal prosecutors tried to carve out a "coconspirator" exception to the marriage privilege in a recent case involving an accused Czech spy and his wife. The Second Circuit Court of Appeals in New York ruled in favor of the couple. The Supreme Court agreed to review the issue, Frey said, but the couple was swapped back to the Eastern Bloc before the case could be heard.
"There are competing values at stake," Frey said. "Marriage shouldn't be a shelter for crime . . . . On the other hand, part of us recoils from forcing a spouse to testify against another."
Bruno Ristau, former head of foreign litigation for the Justice Department's civil division, said Hakim's claim of privilege on Zucker's testimony is probably protected because Swiss law recognizes strict testimonial privilege for a variety of business relationships. But Stanley M. Brand, general counsel to the House of Representatives from 1976 to 1983, disagreed. "The committee isn't in Switzerland. It's here," Brand said. "And Swiss law has nothing to do with a congressional investigation of something that happened here."
Lacovara and Frey agreed that Hakim probably was within his rights in refusing to answer questions about the meeting he attended with North, Secord and Green. It is permissible for an attorney to have multiple clients, they said.
"It could be a sham, of course," Frey said. In raising the issue, Sen. Warren B. Rudman (R-N.H.) noted that Hakim had never received a bill for Green's services and that another lawyer soon began to represent him.
If the committees want to challenge the claim, Frey said, they could question Hakim and Green, then make a factual determination and ruling.