It Was obvious that the announcement on November 25, 1986 by Attorney General Edwin Meese that profits from the secret sale of arms to Iran had been diverted to the democratic resistance in Nicaragua would trigger the bloodiest political battle since Watergate. It was not, however, obvious that self-evidently illegal acts (such as the Watergate break-in) had been committed in the Iran-contra affair. On the contrary, an excellent case could have been made that the President had authority for every aspect of the affair, from the arms sales to the diversion. The President, for example, could have taken the position that while his subordinates had been out of line in not getting his permission to go ahead with the diversion, it had nevertheless been a good idea and that it had broken no law (since the relevant statute did not apply to him or his staff).
Instead, in the panic to avoid charges of a cover-up, the Reagan administration decided that a special prosecutor should be appointed. It was a disastrous decision and its effects are likely to be with us for a very long time to come.
From its earliest days, it was the policy of the Reagan administration to work toward removing the Marxist-Leninist Sandinista government in Nicaragua. But the administration had a problem. There was a coterie of liberal Congressmen which opposed any resistance to the Sandinistas, let alone their removal. Yet at the same time Congress did not want to be saddled with the responsibility for permanently losing Nicaragua to Communism, with the horrific strategic dangers this would bring. Accordingly, the hawks in the White House and the doves on Capitol Hill entered into an implicit agreement. The White House would do what it could to help the contras in their war against the Sandinistas, but Congress was not going to make any consistent policy of its own. This fateful agreement was enacted in the notorious Boland amendments, named for their principal author, Representative Edward Boland, Democrat of Massachusetts.
There were, in all, five Boland amendments, spanning the four-year period from December 21, 1982 to October 17, 1986. Each was attached to a defense or intelligence bill and, because of the general breakdown of the budget process in recent years, most of them wound up as small details in massive continuing resolutions. Some prohibited any of the appropriated or authorized funds from being used for the contras, while others authorized restricted funds for humanitarian aid, military aid, or both.
Contrary to claims later made by some members of Congress, including Representative Boland himself, the amendments did not by their terms apply to activities by President Reagan or his staff at the National Security Council (NSC). In any case, none of the Boland amendments included any civil or criminal penalties; no prosecutions were envisioned in the wildest congressional imagination. As former National Security Adviser Robert McFarlane testified before the Iran-contra congressional panel, the restraints on the executive branch intended by the amendments were political, not legal.
Why then did President Reagan fail to veto the Boland amendments? One reason was that, in the absence of a line-item veto, he could not do so without “closing down” the entire federal-government apparatus until the veto was overridden or a new continuing resolution was passed by Congress.
But there is another and even more important reason why none of the Boland amendments was vetoed—they were all negotiated compromises between, on the one side, liberal Congressmen who wanted a flat ban on aid to the contras and, on the other side, the President and his congressional allies who wanted somehow to provide the contras with enough support to keep them in the field until a majority in Congress was willing to resume funding.
In other words, there was no veto because no one at the time thought that any of the Boland amendments represented a complete bar to support of the Contras by the executive branch. Any such constraint—one, for example, which might have prohibited the President from mentioning to visiting heads of state that he would appreciate it if they would help the contras—would have raised the most fundamental questions about the constitutional separation of powers.
Thus, after much bargaining by the White House over which restrictions would be acceptable and which would be unacceptable, political compromises were reached. It was understood that the administration would adhere to the letter of the Boland prohibitions, but would unilaterally use its inherent foreign-policy powers to pursue its policy of helping the contras. President Reagan would do what he could for the contras outside of authorized appropriations, while Congressmen who opposed any aid could rest assured that they had done what they could to cut the contras off.
Anyone looking for evidence that the Boland amendments were compromises which did not attempt to rule out White House activities can find it in an unlikely source—a special edition of the Congressional Record prepared by the Library of Congress and containing the entire legislative history of the amendments. This volume was commissioned by Democratic Representative Bill Alexander of Arkansas for the precise purpose of showing that any intention to exclude the President or the NSC was “conspicuously absent.” Ironically, it proves the opposite.
Describing the legislative debate on the first Boland amendment (or Boland One, as it has come to be called), which was in effect during 1982-83, the Library of Congress report concludes that “it was clearly understood at the time of enactment that the compromise would not cut off all direct or indirect assistance to the contras.”
The best way to grasp what Boland One did not include in its prohibition on aid is to consider the alternative amendment proposed by then Representative Tom Harkin, Democrat of Iowa. The Harkin amendment to the fiscal 1983 Defense Appropriations bill would have barred any help for the contras from any government source whatsoever, including the White House and the NSC, and would have forbidden any U.S. officials from “carrying out military activities in or against Nicaragua.” This was much broader than Boland One’s vague prohibition of military aid “for the purpose of overthrowing the government of Nicaragua”—a prohibition which did not apply to aid for other purposes, such as interdicting the flow of arms from Nicaragua to Marxist insurgents in El Salvador, or to fund military attacks that would cause the Sandinista government to teeter, but not quite to topple.
President Reagan sent word through the Republican members of Congress that if approved, the Harkin amendment would be vetoed as unconstitutional. This led Representative Boland to craft his compromise which, he said during the floor debate, “is agreeable to the executive branch. They do not like it, but it is agreeable to them. I believe [the Harkin version] is not necessary. I further believe that it sets a bad precedent.” This bad precedent was the use of appropriations bills to usurp the President’s foreign-policy powers.
There was a similar fight in the Senate, where Christopher Dodd, the Connecticut Democrat, proposed an all-inclusive amendment along the lines of the Harkin proposal. It said that “no funds should be obligated or expended, directly or indirectly . . . in support of irregular military forces or paramilitary groups operating in Central America.” In introducing his amendment, Senator Dodd criticized Boland One for leaving the White House free to pursue its policies in Nicaragua. “There are any number of ways of circumventing [the Boland amendment]. . . . It is going to provide a green light for the continued activity that we have seen reported over and over again, in the last several weeks and months, suggesting that we are already deeply involved in a broader conflict in Central America. My amendment is more open-ended, more of a declaration of policy.”
Senator John Chafee, the liberal Republican from Rhode Island, replied that Senator Dodd’s proposal would be “an extreme injunction to impose on the activities of the United States, directly or indirectly.” He added: “The Senator from Connecticut is going to say [in opposing Boland], ‘Well that is big enough to drive a truck through.’ The question really before us is, is this body going to insert a complete prohibition of activities against this nation? We are making no concession that activities are taking place anywhere, but are we going to tie the hands of the President? After all, it is the President who is at the top of the heap in this. . . . I do not believe we have ever imposed a draconian restriction such as proposed by the Senator from Connecticut in the past with ‘no activities, direct or indirect.’”
By rejecting the Harkin and Dodd amendments in favor of Boland One, Congress showed that it had no intention of “tying the President’s hand.” Indeed, Boland One was so clearly understood as a compromise that it passed the House unanimously. But so vague was the wording eventually approved that by the time of the debate on Boland Two, not even members of Congress themselves could agree on what the Boland One proscriptions meant.
Thus Representative Lee Hamilton, Democrat of Indiana (and future co-chairman of the Iran-contra hearings), apparently under the misapprehension that the Harkin amendment had passed, claimed that Congress had prohibited all covert aid. “Covert action against Nicaragua is against our law. The first law in question is the Boland amendment, passed last year.” Laboring under the same wishful misapprehension, Representative Michael Barnes, Democrat of Maryland, declared that aid to the contras “is illegal under domestic law, as we all know.”
This assertion outraged the then ranking Republican on the Intelligence Committee, Representative Kenneth Robinson of Virginia, who accused the liberals of instantaneous revisionism. “The House voted down a legislative amendment which would have denied funds for the purpose of carrying out covert activity. The House, however, adopted the Boland amendment by a vote of 411 to 0. In so doing, the House approved the concept that a covert paramilitary operation in Nicaragua was acceptable.”
Representative Robinson had good reason to be bitter about the new liberal view of Boland. “I took some of those 411 votes with me. I argued some of my colleagues into going along at that time because I thought I understood it, and I still think I understand it, and I do not believe the Boland amendment has been violated by this administration based on that understanding.” He added that he now regretted having “stood here defending the Boland amendment, arguing my colleagues on the Republican side to vote for it.”
So much for Boland One. According to the Library of Congress report, Boland Two, authorizing $24 million in military aid for the contras in 1983-84, “arose from a desire by the House to curtail all covert support for the contras, while the Senate favored funding such support both through earmarked funds and the use of the CIA reserve for contingencies.” First Congress compromised with the administration. Then, within Congress, liberals compromised with conservatives. The result was even greater vagueness.
Boland Three (1984-85), which was arguably the most restrictive of the series (and which was destined to become the most notorious as a result of the Iran-contra affair), banned the CIA, the Pentagon, or “any other agency or entity of the United States involved in intelligence activities” from using appropriated funds to aid the Nicaraguan resistance. Here the disagreement has been over which agencies were covered. Did the prohibition apply to the President? Did it apply to his personal staff at the National Security Council? In an era when Presidents cannot make phone calls without help from staff, if Boland Three did not apply to the President, how could it apply to his closest foreign-policy aides?
After the amendment was passed, Representative Boland inserted a statement into the record claiming that “It clearly prohibits any expenditure, including those from accounts for salaries and all support costs. The prohibition is so strictly written that it also prohibits transfers of equipment at no cost.”
This broad interpretation would be hard to sustain in court. For one thing, the authorization act to which Boland Three was attached specified which intelligence agencies were affected. These were: the CIA; the Pentagon; the Defense Intelligence Agency; the National Security Agency; the Army, Navy, and Air Force; the State Department; the Treasury Department; the Energy Department; the FBI; and the Drug Enforcement Administration. The President and the NSC were absent from this list. The NSC was similarly absent from a 1981 Executive Order listing the intelligence agencies.
Moreover, the Library of Congress report on the legislative history of Boland Three acknowledges that the prohibition on aid was far from comprehensive. “Unlike some other appropriations statutes, there is no express bar to the use of funds for activities for which Congress has denied assistance.” Absent was the usual catchall phrase prohibiting the use for the proscribed purpose of any funds otherwise authorized; there was no provision that read: “Notwithstanding any other provision of law, no funds may be appropriated under this or any other act for the purpose of” aiding the contras. Indeed, during the debate over Boland Four (August 8, 1985 to March 31, 1986), which included the Michel amendment providing $27 million in humanitarian aid to the contras, Representative Boland said that “the President, under the Michel amendment, can determine the agency which will dispense this aid,” but that under his own amendment, the President would “be precluded from using an intelligence agency.” Acting under these very Boland guidelines, the Senate Appropriations Committee expressly stated that while the President could determine how the money would be used, it “requires the National Security Council to monitor implementation of the proposal.” Although President Reagan later chose a unit of the State Department to oversee the humanitarian aid, it was clear that Congress did not consider the NSC barred by the Boland amendments.1
Neither the fact that the Boland amendments were vaguely worded political compromises, nor the evidence that they were not meant to apply to the National Security Council, is likely to deter the independent counsel (or special prosecutor), Lawrence Walsh, from using them as the basis for criminal charges against former members of the NSC staff, and perhaps others as well.
As Walsh apparently sees it, his job as special prosecutor is to prosecute—to seek criminal charges arising from the Iran-contra affair—and his staff of a deputy counsel, 24 associate counsels, 35 FBI agents, and 15 Customs and Internal Revenue Service agents has been tenacious. This staff has conducted more than 1,000 interviews, and subpoenaed more than one million pages of documents, including a blanket call for all relevant Justice Department papers. Last June, Walsh signed a two-year lease for 11,000 square feet of prime office space in Washington, D.C.—with an option for a third year.
There is a saying that any prosecutor can indict a ham sandwich if he so chooses. In normal circumstances, however, there are well-established guidelines limiting prosecutorial discretion and constraining law-enforcement attorneys from bringing cases that go beyond the behavior envisioned by the criminal code. Walsh is not operating in these normal circumstances. The position of special prosecutor (later renamed independent counsel) was created by Congress in the Ethics in Government Act (1978) to investigate high-ranking executive-branch officials. Unlike other federal prosecutors, these independent counsels are appointed and supervised by a panel of judges, not by the Attorney General. So far as Walsh in particular is concerned, he has already shown that neither does he consider himself bound by normal Justice Department guidelines and precedents.
For example, he has said that if an investigation finds “probable cause that a crime has been committed, it is the duty of the independent counsel to prosecute.” Yet according to the Justice Department’s manual for the guidance of U.S. Attorneys, probable cause “is, of course, a threshold consideration only. Merely because this requirement can be met in a given case does not automatically warrant prosecution.”
As an indication of his refusal to abide by the usual rules of prosecutorial discretion, Walsh’s first significant act was to charge two fundraisers for the Nicaraguan resistance, Carl “Spitz” Channell and Richard Miller, with conspiring to defraud the government by claiming a tax exemption for contributions used to buy arms for the contras. As part of a plea bargain (whose terms we may never know), both pleaded guilty, named Lieutenant Colonel Oliver North as a co-conspirator, and agreed to cooperate with Walsh’s investigation.
The problem with the charges and the plea bargain is that no criminal law was broken. Using a tax-exempt organization to raise money to buy weapons is at most a civil violation. This is the view of both the Internal Revenue Service (IRS) and the tax division of the Justice Department. The IRS does not normally indict anyone even if a tax-exempt status has been abused. Instead, a civil fine is occasionally assessed. The only criminal charges ever to arise before from abusing charitable status involved obvious cases of tax evasion, such as phony churches. The Assistant Attorney General for the tax division at the time of Walsh’s action, Roger Olsen, says that “it is very, very rare for a criminal case to be brought” for allegedly abusing tax-exempt status; nor does he know of any case where a group that provided arms for foreign resistance groups was denied tax-exempt status. Assistant Attorney General John Bolton puts the matter bluntly: “The theory under which Channell pled is a wacko theory.”
In fact, the tax code’s generosity with exemptions for charities means that raising money to buy arms for the contras is probably not even a civil offense. Internal Revenue Code Section 501(c)(3) grants tax-exempt status to groups “organized and operated exclusively for religious, charitable, scientific, . . . literary or educational purposes.” The key word is “charitable,” whose meaning is based on the Charitable Uses Act of 1601. This Elizabethan statute lists four purposes for charities: relief of poverty, education, religion, and “other purposes beneficial to the community.” The American tradition has been to view these beneficial purposes broadly enough to include such things as sending donations to the Abraham Lincoln Brigade during the Spanish Civil War. Why not, then, buying arms for the contras?
The Channell-Miller plea bargain put the other participants in the Iran-contra affair on notice that no charge may be too vague, technical, or arcane for Walsh to bring against them. To be sure, Walsh could conceivably indict one or two people outside the government on familiar charges of criminality. For example, Richard V. Secord and his partner Albert Hakim, who acted as the “commercial cutouts” in the arms deal, could be accused of profiting illegally from government property when they deposited the profits or “residuals” in their own bank accounts (although they could make a compelling case that the government got what it bargained for when the Treasury was compensated in advance for the asked-for price of the arms).2 But news reports have suggested that Walsh is mainly trying to establish that officials in the executive branch conspired to “defraud” the government when they helped the contras. Here he is presumably relying on the single vaguest crime in the entire 50-plus volumes of the U.S. Code, “Conspiracy to Defraud the United States” (18 United States Code Section 371). The charge would be that even if the NSC was not covered by the Boland amendments, it was a “fraud” on the U.S. government (or, at least, on Congress) for Lieutenant Colonel North, Rear Admiral John Poindexter, and others to do anything that helped the contras. Under this charge, moreover, Walsh might not even have to prove to a jury that the indicted parties ever intended to commit a crime.
According to Blackstone, “an unwarrantable act without a vicious will is no crime at all.” Except for a few crimes, such as involuntary manslaughter, this requirement of evil intent still remains, at least in theory. The evil intent (mens rea) must be joined to the commission of an evil act (actus reus). Or as Senator James McClure, Republican of Idaho, put it during the Iran-contra hearings: “If it is a matter of criminal law, there has to be a union of act and intent. A person must violate a law and he must intend to violate it by having a guilty mind at the time that he performs the act in order to have the requisite basis for a criminal prosecution.” And as Attorney General Meese added: “The law must be such that a person is given fair warning of what the crime is he might be accused of.”
However, the use of the conspiracy statutes in recent decades by federal prosecutors has eroded the protection to individuals offered by the mens rea and actus reus requirements. A statute such as Conspiracy to Defraud the United States, itself originally intended only to catch tax evaders, contains language broad enough to provide prosecutors with new avenues of attack.
Nearly all normal crimes—murder, theft, etc.—have their actus reus requirements defined with great precision in the statute books. In contrast, the mushy concept of “fraud,” especially when linked with the equally broad idea of “conspiracy,” can transform any act a jury opposes into a crime. Hence these anti-fraud statutes have come under heavy attack by civil libertarians. Abraham Goldstein of the Yale Law School, in a landmark article in the 1959 Yale Law Journal, urged Congress to repeal Conspiracy to Defraud the United States. “Defense counsel is placed in the unenviable position of not knowing what the defendant is supposed to have agreed to do,” Professor Goldstein wrote, describing the statute as having created a “Kafkaesque crime, unknown and unknowable except in terms of the facts of each case—and even then, not until the verdict has been handed down.”
Aside from the broad conspiracy charge, there is another code section that would allow Walsh simply to invoke “fraud” to get an indictment. This statute (18 United States Code Section 1001) makes it a crime to make any “false, fictitious, or fraudulent statement” to any “department or agency of the United States.” During the Iran-contra hearings, the co-chairman, Senator Daniel Inouye, Democrat of Hawaii, repeatedly referred to this provision as covering false testimony by administration officials to Congress even when they are not under oath. Here again a law whose purpose was to indict tax evaders (for lying on their returns) may be stretched by Walsh in order to prosecute government officials who neither knew that they were committing a crime nor intended to do so.
It is also expected that Walsh will bring criminal charges involving the handling of funds. In doing so, however, he will have to invoke and stretch a number of other sections of the code as well. One is the Anti-Deficiency Act (31 United States Code Section 1341), whose original purpose was to prevent executive officers from committing the government to expenditures beyond what Congress appropriates. According to a General Accounting Office study, “There does not appear to have ever been a prosecution under the criminal provisions of the Anti-Deficiency Act.”
Another possibly relevant statute (31 United States Code Section 1301) requires that appropriations be used only for the particular purposes designated by Congress, and not for any other purpose. But no criminal sanction is attached to this law, either. Nor are criminal penalties involved in 31 United States Code Section 3302, requiring “custodians” of public moneys to deposit any excess funds in the Treasury. In any event, the money sent to the contras through the diversion was not appropriated by Congress, and it is by no means self-evident that the profits from the arms sales were government property.
Finally, there are the two last resorts of the frustrated prosecutor, perjury and obstruction of justice. If Walsh can find discrepancies among the myriad depositions, congressional hearings, and courtroom testimony, he could bring perjury charges. The problem with perjury is that juries rarely convict anyone of lying about a possible crime if he did not also commit the crime in question. As for obstruction of justice, there was obviously much shredding of documents in Lieutenant Colonel North’s office suite. But for this to be a crime, it would have to have occurred after an official criminal investigation had begun, which does not appear to be the case here.
Even if the text of the Boland amendments and their legislative history supported the idea that they applied to the White House, including the NSC, and even if one or more of the “conspiracy to defraud” statutes, or the laws Congress passed to regulate arms transfers, were truly applicable to the Iran-contra affair, there would still be another obstacle to criminal prosecutions here—the Constitution.
The Iran-contra panel had a lot to say about how executive-branch officials had “undermined the rule of law” and how failing to inform Congress of all covert operations meant that there was no accountability to “elected officials.” But Congress cannot alter the separation of governmental powers set up in the Constitution merely by passing laws (or amendments to continuing resolutions). The Constitution, Supreme Court precedents, and two centuries of practice establish that the President has a wide mandate to pursue the foreign policy of his choice. As Representative John Marshall (later to become Chief Justice of the Supreme Court) told his colleagues in the House in 1800, the Constitution makes the President the “sole organ of the nation in its external relations, and its sole representative with foreign nations.”
In contrast, the foreign-policy powers of Congress under the Constitution are limited. The Senate has the advice-and-consent power over treaties and ambassadors. Congress has the power to declare war, though the Founders were careful to give the President the power to make war. This is a frequently overlooked distinction. Presidents have involved the nation in hostilities on dozens of occasions, but war has been declared only five times.
The most significant foreign-policy power granted to Congress is the power over the purse. If Congress wishes to end U.S. involvement in a war, it can cut off funding for it. However, the power of the purse is an exceedingly blunt instrument. Congress could, for example, refuse without equivocation to appropriate funds for the contras, as the defeated Harkin-Dodd amendments would probably have done. But if, instead of simply withholding appropriations, Congress tries to attach conditions to the spending of authorized funds, such conditions cannot be used to usurp the constitutional authority of the executive branch. This was the lesson of U.S. v. Lovett (1946). Congress had tried to insert into an omnibus appropriations act a condition that three executive-branch officials, suspected of subversive activities, would be denied salaries. The Supreme Court treated this as an unconstitutional bill of attainder and a usurpation of the President’s power to hire and fire his own staff.
The Lovett case bears directly on Representative Boland’s claim that his amendment prohibited executive-branch officials from helping the contras by reason of their receiving federal salaries appropriated by Congress. If Congress could limit the normal activities of any executive-branch official by conditioning his salary, it could make executive policy by using the power of the purse. For example, Congress could use the fact that it appropriates the President’s salary to deny him the power to veto its bills.
Nor is Lovett the only relevant Supreme Court decision here. Indeed, U.S. v. Curtiss-Wright Export Co. (1936) raised legal and constitutional issues eerily similar to the questions arising from the Iran-contra affair. The defendants were private U.S. citizens who had sold fifteen machine guns to Bolivia, in violation of a presidential proclamation by Franklin D. Roosevelt that no arms be sold to warring nations in the Chaco. A joint resolution of Congress (which, in contrast to the Iran-contra situation, agreed with FDR’s policy) had established the penalties that could be assessed for violating the proclamation. In upholding the convictions, however, the Supreme Court did not rely on the joint resolution, but instead only on the President’s broad powers under the Constitution. Justice George Sutherland wrote for a 7-1 Court that the Constitution gives the executive branch supreme powers in foreign affairs. It is worth citing his opinion at length because Curtiss-Wright would be the key precedent in any Iran-contra litigation:
Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate, and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. . . .
It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary, and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. . . . This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly defined standards by which the President is to be governed.
In recent terms, the Supreme Court has invalidated both the legislative veto and certain provisions of the Gramm-Rudman budget law as unconstitutional usurpations by Congress of the President’s powers. What may be next are the War Powers Resolution (requiring that troops be withdrawn within sixty days unless Congress acts to authorize the deployment), the intelligence oversight laws (requiring that congressional committees be “fully and currently informed” of intelligence activities), and the Boland amendments. All of these are also very likely unconstitutional infringements by Congress on powers assigned or reserved to the President.
Along with the Constitution and Supreme Court decisions, past practice also supports broad executive-branch authority. Thus, as of 1970, the last time a public accounting was made, Presidents had ordered troops or significant arms abroad 199 times, though (as already noted above) on only five of these occasions did Congress declare war. In 62 cases of non-declared war, Congress had consented to the President’s action by appropriating funds, passing resolutions, or by the Senate’s having ratified a treaty that envisioned presidential action. On the other 137 occasions—that is, two-thirds of the time—the President acted without any authorization whatsoever by Congress.
In many of these cases, moreover, the President’s actions were directly contrary to clear congressional edicts. The most famous example was FDR’s decision to violate laws intended to keep the United States neutral in what became World War II. His Attorney General issued an unpersuasive ruling that the transfer of 50 ships to Britain in exchange for naval bases was consistent with the neutrality laws, and while there was a huge controversy, FDR suffered no injury, legal or political, for so clearly defying Congress.
Yet even if the laws under which Walsh is seeking convictions should be deemed constitutional, there will remain the question of whether he himself is acting under constitutional authority.
There is very good reason for the view that the office of independent counsel that Congress created to investigate executive-branch officials violates the separation of powers. Unfortunately, Congress gave the role of supervising these prosecutors to a three-judge panel in the District of Columbia, so the lineup on the issue may be two branches to one. Still, the very idea of a prosecutor independent of the executive branch is as constitutionally abhorrent as the courts declaring war or Congress nominating cabinet members.
From time to time, when high-ranking executive officials were accused of breaking the law, Presidents have appointed special prosecutors within the Justice Department, equal in stature with the Attorney General. This system worked quite well for nearly 200 years. Then came Archibald Cox, who in an unprecedented request during Watergate demanded that President Nixon turn over the tapes and sacrifice any notion of executive privilege and presidential immunity. Robert Bork (as acting Attorney General) fired Cox and the President hired another special prosecutor. All this eventually led to the Ethics in Government Act under which a special prosecutor was to be appointed by a three-judge panel whenever the Attorney General found a low threshold of evidence that a high-ranking executive official might have broken a law.
Every President since has expressed doubts as to the constitutionality of this scheme. The argument against the independent counsels is that the Constitution specifies that the President executes the laws and that, accordingly, the prosecutors who help him carry out that mandate must be members of the executive branch; an “independent prosecutor” is thus a constitutional oxymoron. The defense of the independent counsels rests on a clause at the end of Article II, section 2, after the President is given authority over judges, ambassadors, and “all other officers.” The clause says: “The Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” Proponents argue that independent counsels are “inferior officers.”
At the very least, an “inferior officer” must be inferior to someone. Yet Walsh does not appear to be inferior to anyone, including the President. He ignored established legal rules and State Department precedents on diplomatic immunity when he tried to subpoena a former Israeli official, David Kimche. His plea bargain with Channell and Miller was based on a view of the tax code at odds with all previous executive-branch practice.
Indeed, when Walsh’s deputy, Guy Struve, in a hearing last June before a District of Columbia Appeals Court, was asked: “Are you suggesting that your definition of ‘inferior officer’ does not require an inferior officer to be inferior to anybody?,” he replied, “That is what I am suggesting.”
There is something especially obnoxious in instructing prosecutors to investigate named individuals with a view toward indicting them. In 1940, many years before the office of the independent counsel was established, Robert Jackson, then Attorney General and later to become a Supreme Court Justice, said that the greatest danger posed by any prosecutor is that “he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” For “with the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work to pin some offense on him.” Worst of all, Jackson concluded, is when the “real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.”
Lawrence Walsh, ultimately empowered by a Congress whose majority strongly opposes the politics of the President and his foreign policies especially, is this dangerous prosecutor writ large.
And so it is that we now have what Oliver
North denounced in his opening statement to the Iran-contra panel as the “mind-boggling” attempt “to criminalize policy differences between co-equal branches of government and the executive’s conduct of foreign policy.” This ugly new feature of our political life (reinforced by prosecutorial congressional hearings and by what Leonard Garment3 calls “prosecutorial politics” in general) makes it unlikely that any President soon will dare exercise to the full the authority to conduct foreign policy that the Constitution places in him. Indeed, criminalizing policy differences guarantees cowardice and even paralysis in the executive branch as a whole. Because no other branch of government, certainly not Congress, can step into this breach, our enemies have good reason to be delighted, and our friends to be frightened and horrified.
1 The fifth and last Boland amendment (December 4, 1985 to October 17, 1986), was attached to the Intelligence Authorization Act. This bill permitted a classified amount of military and paramilitary aid to the contras. It also expressly authorized the State Department to “solicit humanitarian assistance for the Nicaraguan democratic resistance . . . so long as such third country assistance is furnished from the third country's own resources, and the United States does not enter into any provision of U.S. assistance to a third country on the provision of assistance by such third country to the Nicaraguan democratic resistance.”
The Boland amendments expired as the United States resumed funding the contras. In June 1986, President Reagan got congressional approval of a $100-million aid package: $70 million for military aid and $30 million for humanitarian aid, including $3 million for a human-rights group to monitor the activities of the contras.
2 So far as the arms sales themselves are concerned, they do not seem to have been illegal, even on the broadest interpretation. Trading arms for hostages may have been bad policy, but it broke no laws. Moreover, the fact that President Reagan approved the transfers to Iran, and that the arms shipped to Nicaragua by Secord came from outside the U.S., would appear to rule out indictments under the Arms Export Control Act, the Foreign Assistance Act, and the Export Administration Act—all of which have been mentioned as possible bases for prosecution.
3 “The Guns of Watergate,” COMMENTARY, April 1987.