The Attorney General's Lawyer: Inside the Meese Justice Department

By Douglas W. Kmiec | Go to book overview

As to the President's foreign affairs authority, Walsh stated that he had "no quarrel with most of the general propositions asserted.... [And that he] expressly recognizes the existence of significant--and, indeed, exclusive--Executive authority in various areas relating to foreign affairs." 35 More specifically, Walsh conceded that "the Boland Amendment does not, and constitutionally could not, prohibit the President from urging foreign governments or private citizens to contribute to the support of the Contras." 36 Walsh had thus sufficiently refined his pleading to satisfy the President's interests, and the point of our amicus was well accomplished.

This was not an "academic dispute within the Department of Justice," as Judge Gesell characterized it, it was the sum and substance of what was wrong with the principal counts in the North prosecution. What Walsh called "obstruction," the U.S. Court of Appeals noted in reversing North's convictions, may often be nothing more than "legitimate political jousting between the executive and legislative branches." 37 While the appellate court based its reversal on the possible improper use of immunized testimony, the reality was that in large part North was being tried for political crimes. That exercise is reserved to the political branches. That was what the Tower inquiry was about; that was the entirely proper thrust of the congressional hearings on Iran-Contra. It was what fundamentally distinguished Iran-Contra from Watergate. As Watergate prosecutor Henry Ruth observed: "I think Walsh made a mistake in charging a conspiracy to violate the world. Trying to prove a crime in foreign policy is very difficult and maybe it shouldn't be undertaken.... In Watergate, we had true perjury,..."38

Nevertheless, Walsh persisted. His political count "violating the world," as Ruth put it, did not last long. A month and a half later, Gesell would dismiss what Walsh had earlier described as the "heart of the case" 39 for reasons pertaining to the inaccessibility of classified information. The truly noncriminal counts in the indictment should have never been brought in the first place. They were political questions, and if the Constitution is to mean what it says, those can never be crimes.


NOTES
1.
The Tower Commission Report (N.Y. Times ed. 1987).
2.
Report of the Congressional Committees Investigating the Iran-Contra Affair, H.Rep. No. 100-433, S.Rep. No. 100-216, 100th Cong, 1st Sess. ( 1987) [hereinafter "Congressional Iran-Contra Report"].
3.
Pub.L. 96-456, 94 Stat. 2025, 18 U.S.C. App. (Supp. 1983).
4.
U.S. v. North, 910 F.2d 843 (D.C. Cir. 1990).
5.
"Terminator 3", Wall St. Journal, July 18, 1991, at p. A12, col. 1.
6.
Continuing Resolution, Department of Defense Appropriations Act, Sec. 8066(a), Pub. L. No. 98-473; 98 Stat. 1837 (Act approved Oct. 12, 1984).

-188-

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The Attorney General's Lawyer: Inside the Meese Justice Department
Table of contents

Table of contents

  • Title Page iii
  • Contents ix
  • Foreword xi
  • Introduction 1
  • Note 3
  • Part I - Beginnings 5
  • 1 - Surmounting the Independent Counsel 7
  • Notes 16
  • 2 - In Search of Original Intent 17
  • 3 - The Unitary Executive 47
  • Notes 65
  • Part II - The Essence 69
  • 4 - Family: Abortion, Aids, Pornography, and School Choice 71
  • Notes 106
  • 5 - Work: Securing Economic Liberty 111
  • Notes 129
  • 6 - Neighborhood: The Revival of Federalism 132
  • 7 - Peace: The Color-Blind Society 152
  • Notes 175
  • 8 - Freedom: Iran-Contra and the Criminalization of the Separation of Powers 179
  • Notes 188
  • Part III - The Finale 191
  • 9 - Ethics, Give Us More Ethics 193
  • Notes 214
  • Epilogue 219
  • Notes 220
  • Selected Bibliography 221
  • Index 225
  • About the Author 235
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