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.