Return of The Watergate Doctrine

By Ed Magnuson

$ No man, not even a President, is above the law -- especially if he possesses evidence that could affect a fellow citizen's fight to stay out of prison. Yet if Presidents can be compelled to disclose confidential conversations with their aides, perhaps as summed up in a diary, wouldn't that chill the candor of future advisers, as well as Presidents? Those conflicting points of law, confronted in the doctrine of Executive privilege during the Watergate scandal, were raised once again last week by Ronald Reagan as he struggled to avoid being pulled into the legal battles over the Iran-contra affair that had marred his presidency.

Until last week the national furor over the idea of swapping weapons for hostages in defiance of a congressional ban on official gunrunning to the contras seemed to have faded to the vanishing point. But when federal Judge Harold Greene ordered that more than 30 excerpts from Reagan's Oval Office diary be turned over to his former National Security Adviser John Poindexter on the ground that they were relevant to his defense, the fuss flared anew, if perhaps only fleetingly.

Reagan's lawyers objected to Greene's order. But only after repeated questions from the court did Reagan's attorney Theodore Olson even use the words Executive privilege as the basis for resisting the order. This defense inevitably raises comparisons with Richard Nixon, who failed to persuade the Supreme Court that his secret White House recordings merited this protection.

In some ways Reagan's position is weaker than Nixon's. Judge Greene observed that a former President has less standing to claim Executive privilege than the one in office, implying that Reagan would have a much stronger case if George Bush joined him in asking that the diary excerpts be suppressed. So far, Bush has not, and for an obvious reason: it might appear that he and Reagan both have something to hide about their Iran-contra roles.

Unless the legal bickering over Executive privilege becomes protracted, Reagan may face imminent disclosure of his mysterious jottings, made in leather-bound notebooks. To date, only two of his closest aides have seen the original diary. The few attorneys who have examined excerpts say they contain no Iran-contra bombshells. But Poindexter, who insisted in Senate testimony that "the buck stopped with me" in keeping the diversion of arms profits a secret from his boss, hopes the diary will show that Reagan gave him at least implicit direction to do what he did.

The former President may have more concern about Greene's other order: that he give testimony at Poindexter's trial. Although, like previous Presidents, he will be quizzed on videotape, the examination by Poindexter's lawyers could be stiffer than any other probe Reagan has undergone in the whole affair. The videotape procedure, agreed to last Friday, makes it less likely that Reagan will blurt out some national-security secret. If he does, Greene can edit the tape. Still, the Justice Department's refusal to permit use of some classified documents in the trial could eventually require Greene to dismiss the charges against Poindexter, an outcome also possible if Reagan wins his fight to withhold the diary. In either case, all parties involved in the tangled legal situation -- except independent counsel Lawrence Walsh -- presumably would be pleased.

As it is, Walsh's results, through little fault of his own, are meager. He has spent some $18.5 million, and still employs 17 full-time attorneys and a staff of 51. Yet unlike Watergate, in which 25 individuals went to prison, no one, not even Iran-contra's private contractors Richard Secord and Albert Hakim and the celebrated Lieut. Colonel Oliver North, has served time. In many ways Watergate, a political burglary that mushroomed into a massive cover-up, was less serious than the deliberate defiance of a congressional law, signed by Reagan, and the undermining of a publicly proclaimed policy of never bargaining for hostages or selling arms to Iran.

Even North's conviction, Walsh's most spectacular, could conceivably be overturned. The retired Marine's attorneys were in a federal appeals court last week arguing that his trial was unfair, partly because Reagan did not testify. Judge Gerhard Gesell ruled that North failed to show how Reagan's testimony would be relevant.

The Gipper's words on Iran-contra are suddenly in fresh demand for some solid reasons that extend beyond courtrooms. They could affect his place in history. Observes Henry Graff, a presidential historian at Columbia University: "Reagan can't have it both ways. He can't be remembered as a piece of putty in the hands of activist conspirators and also someone who put his stamp on the times and yearns for a place on Mount Rushmore."

With reporting by Ted Gup/Washington