Commentary Magazine


Opening Arguments, by Jeffrey Toobin

Above the Constitution?

Opening Arguments: A Young Lawyer’s First Case.
by Jeffrey Toobin.
Viking. 374 pp. $22.95.

In late 1986 a special court named Lawrence E. Walsh as the independent counsel for investigating and prosecuting crimes stemming from the Iran-contra affair. Soon thereafter Jeffrey Toobin, a recent graduate of Harvard Law School and a former intern at the New Republic, quit a clerkship to a federal judge to become, at age twenty-six, the youngest member of Walsh’s staff. Inspired by the example of the Watergate special prosecutors, and like many of his new colleagues perched politically to the Left, Toobin understood his job as a crusade:

We would take on Reagan and all the President’s men, with their contempt for the Constitution, disdain for the Congress, and hostility to the truth. . . . We had nothing less than a blank check to uncover and rectify the misdeeds of a corrupt and dishonorable administration. We wouldn’t stop until we reached the top.

Of course, the Office of Independent Counsel (OIC) stopped well short of President Reagan, although after four-plus years it has yet to close down. Toobin, now an assistant U.S. Attorney in New York, worked in the office until May 4, 1989, the same day a federal jury convicted Oliver North on three of twelve counts; the convictions were later overturned on appeal. Opening Arguments is an inside account of the OIC’s efforts during that time by its most junior member.

Toobin has little feel for the contours of constitutional law or the purpose of the presidency in our system of government, nor is he learned in foreign affairs, whether in the Middle East or Central America. Toobin’s publisher touts the book as containing “undisclosed revelations,” such as that the CIA bribed officials in Costa Rica to help resupply the contras. Toobin, however, says he has never thought of his book as a revelatory work but as a narrative about his own growth as a lawyer. And indeed, this is the main theme of Opening Arguments.

By the end of the book, Toobin is still a liberal (U.S. policy in Central America is “reprehensible,” he writes, ignoring the Nicaraguan election results last spring); but he is no longer the zealous crusader. He dwells, now, on the “futility of using the criminal process to expose or correct governmental misdeeds,” noting that he has come to embrace a “more modest conception of the OIC mission”—that it should stick to enforcing specific statutes, nothing more. “Only crimes are crimes,” he says, cautioning, correctly, that prosecutors “thinking broadly put all of us at peril.” In the end he confesses: “Gone is the desire—much less the expectation—for my work to change the course of history, but I celebrate, rather than regret, my enlightenment. I know better my own limits and those of all prosecutors.”

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The world is no doubt a safer place now that Jeffrey Toobin has discovered that only crimes are crimes—something he was apparently never taught at Harvard Law School. But a central question raised by his book is whether he learned all he should have learned. When he left the OIC in 1989 Toobin agreed, in writing, that anything he produced for publication would be submitted first for review, to make sure it did not violate the criminal prohibition against publicizing grand-jury information or divulge other confidential matters. Walsh, reviewing Toobin’s book, refused to approve it. Toobin sued, charging prior restraint. A federal judge sided with Toobin, finding no grand-jury leaks and no other secrets worth protecting (thereby undermining Viking’s claims about “revelations”). Walsh appealed, but Viking published anyway.

As Toobin well knows, however, what is legal is not necessarily right. His book egregiously violates professional standards. Toobin alleges, for example, that former Assistant Secretary of State Elliott Abrams, who has not been prosecuted by Walsh’s office, told “a flat-out, bald-faced lie” in congressional testimony; he then writes that “the evidence [for proving a crime] . . . fell short.” No prosecutor, however, has any business discussing possible crimes in any forum other than a court of law. Toobin has defended his outrageous defamation of Abrams by suggesting in interviews that because Abrams is a public figure, he is “fair game.” I cannot imagine that is a principle Toobin would seriously wish to defend, and I doubt that his current employer—the Justice Department—would allow him to give press conferences (much less write books) explaining the reasons for the non-prosecution of individuals he has investigated, or impugning their characters, no matter how well known they might be.

It is, of course, true that the results of independent-counsel investigations are supposed to be made public, in accord with the terms of statute itself. That happens to be one of many flaws in the independent-counsel law—the reporting requirement itself violates professional standards. But even assuming its propriety, it is Walsh, not Toobin, who is authorized to write the report that a special court would then release to the public. A book by Toobin or anyone else on the staff should come after Walsh’s report.

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Toobin was a young man in a hurry. His chapters on the North trial are eyewitness accounts of the proceedings, but it is clear that on most days he was not at the prosecution table but in the audience where, I am told, he took notes as though he were just another reporter. Quite apart from the government-ethics question of why the citizenry should have been paying Toobin’s (huge) salary while he pursued a lucrative private interest (this book), and the managerial question of why Walsh did not supervise his rookie lawyer, one wonders whether Toobin joined the OIC to crusade or to make a name for himself. An answer may lie in the documents sought by Walsh in the lawsuit Toobin brought against him. Among those documents were Toobin’s own diaries; in the entry for April 28, 1989 Toobin confides that his debriefing session that day

scared the hell out of me because I realized it would be Walsh reviewing my book, not some faceless bureaucrat. I was seized by fear—really since the first time I thought about this project—that it might not happen. Then what would I do? What would I tell Amy [his wife]? Myself? I sulked.

Interestingly, though he comes to side with the more traditionally-minded of the OIC staff, Toobin does not really attack any of his former colleagues. Moreover, he has publicly disagreed with those who say that his book shows what is wrong with the Walsh investigation. He may be off the squad, but it is still his team. Yet the team still deserves far more public scrutiny than it has received to date.

Toobin reveals the division within the OIC on whether North and others should have been charged with conspiring to violate the Boland amendment, a civil law that restricted U.S. government aid to the contras. He quotes one lawyer as saying: “Charging a violation of the Boland amendment is not fair.” Yet the OIC under Walsh’s leadership sought and won an indictment of North on precisely that charge. As it turned out, North could not be tried on it because of the law governing the use of classified materials in criminal proceedings, which requires the prosecution to consult with intelligence agencies in advance. The OIC failed to do that, according to Too-bin, and was in any event unprepared for “classified-information problems.” If that is so, Walsh must explain why he forged ahead with the Boland-conspiracy case when fairness and an appreciation for national-security concerns argued against it.

He must also explain why he prosecuted North and John Poindexter at all, given the fact both had testified in Congress under grants of immunity; as the U.S. Attorneys’ manual (quoted by Toobin) advises, “successful prosecution” of such an immunized congressional witness “would usually be extremely difficult.” The problem of immunity has turned out to be the rock on which the Walsh ship has foundered; the North convictions were overturned on immunity grounds. Toobin also says that in the event President Reagan had pardoned North, Walsh was prepared to argue the remarkable point that a presidential pardon before conviction is invalid. This, notwithstanding the fact that the Constitution places the pardon power, without qualification, in the hands of the President. Was Walsh putting himself above the Constitution?

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The independent-counsel law is an anomaly in our system of government. Court-appointed counsels have even more power than the Attorney General. They can serve forever—Walsh has now been in office longer than any Attorney General in four decades—and they have unlimited resources (Walsh has already spent at least $25 million). As Walsh did Jeffrey Toobin (a fact unreported in this book), they can pay twenty-six-year-olds more than $70,000, twice as much as a beginning attorney can earn at the Justice Department. Removed from the constraints of a normal prosecutorial environment, they do not have to pick and choose among cases, but can exhaustively pursue a single one, for as long as they like, regardless of the damage done to other considerations, including fairness to individuals and national security. They are accountable really to no one in the elective branches.

The independent-counsel law expires on its own terms in 1992. Congress would be wise not to reauthorize it. For many reasons Toobin’s book should be the first and last memoir written by an OIC lawyer.

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