Reagan, Bush Subpoenaed in North Case : Ex-Aide's Move Sets Stage for Fight Over Constitutional Issue

By DOYLE McMANUS

Dec. 31, 1988 12 AM PT

Times Staff Writer

WASHINGTON — Lawyers for former White House aide Oliver L. North on Friday subpoenaed President Reagan and President-elect George Bush as witnesses in North’s upcoming trial on criminal charges stemming from the Iran-Contra scandal, setting the stage for a struggle over whether the two chief executives should be compelled to testify in court.

Two senior Administration officials said that Reagan and Bush probably will refuse to appear as witnesses in court but said that they may agree to answer written questions on the case.

Would Be a First

No sitting President ever has been compelled to appear in person at a criminal trial, although efforts to obtain presidential testimony date back to the Administration of Thomas Jefferson in 1807. Historically, presidents have resisted subpoenas on grounds of the separation of powers, and courts have been reluctant to press the issue. However, several presidents have provided evidence for criminal cases, including written answers to lawyers’ questions.

North, a former official on the National Security Council staff, has been charged with defrauding the government by selling U.S. Army weapons to Iran at a profit and secretly diverting the extra money to Nicaragua’s Contras.

The text of the subpoenas was not made public but lawyers familiar with the case said that North’s attorneys may be seeking testimony from Reagan and Bush to help show that the former aide believed he was acting under official authority.

President Reagan was told of the subpoena Friday afternoon at the Rancho Mirage estate of publishing magnate Walter H. Annenberg, where he is on vacation, but he had no immediate reaction, a White House spokesman said.

“The Department of Justice has received a subpoena addressed to the President seeking the President’s testimony in the criminal trial of Oliver North, which is presently scheduled to begin Jan. 31,” said spokesman Roman Popadiuk, reading a prepared statement. “The subpoena also seeks the discovery of certain personal records of the President.

“Issuance of the subpoena raises significant legal and constitutional issues which are currently being reviewed by the Department of Justice and the counsel to the President,” Popadiuk said. “It would be unprecedented for a President to personally appear as a witness at a criminal trial. Although it would be premature to speculate about what position will be ultimately taken, historical precedent suggests that any necessary or relevant information could be provided through written questions and answers.”

May Try to Quash Subpoenas

Lawyers for Reagan and Bush met to discuss the subpoenas Friday, and after the meeting one senior government lawyer predicted that both will file motions quickly to quash the subpoenas.

“It’s not a game of cat and mouse,” he said. “There’s no desire to delay.”

Nevertheless, several lawyers familiar with the case said that the subpoenas almost certainly will delay the start of North’s trial beyond the scheduled date of Jan. 31 because of the coming arguments and negotiations over whether Reagan and Bush should comply.

North’s chief defense lawyer, Brendan V. Sullivan Jr., denied that the subpoenas were issued with the aim of delaying or derailing the trial. “We have a trial beginning on Jan. 31, and we’re going to do that,” Sullivan told ABC News.

“A defense lawyer has an obligation to issue a subpoena to every person who has relevant information about a matter in court,” he said. “The President himself has indicated that he has relevant information.”

Reagan and Bush already have responded to questions about the Iran-Contra affair from a White House commission, a joint congressional committee and a grand jury. Reagan has provided written answers to questions from independent counsel Lawrence E. Walsh, who is prosecuting North, and Bush has submitted to questioning in his office.

Presidents have been sought as witnesses in criminal trials since 1807, when Jefferson was subpoenaed in the treason case of former Vice President Aaron Burr. Jefferson refused to testify and instead responded by turning over selected documents--setting a precedent that has been broadly followed ever since.

In more recent cases, Presidents Gerald R. Ford and Jimmy Carter both provided videotaped testimony in criminal trials while they were in the White House--Ford in the trial of an attempted assassin and Carter in the case of two former Georgia officials. And former President Richard M. Nixon testified in person in the trial of two former FBI officials in 1975, 11 years after he resigned the office. All three testified voluntarily, without being compelled by subpoenas.

“The courts have generally been reluctant to order presidents or former presidents to testify,” said Herbert J. Miller Jr., a former Justice Department official who later acted as an attorney for Nixon. “It’s the whole separation of powers doctrine”--distinguishing the powers of the executive, judicial and legislative branches of government.

But the separation of powers doctrine does not protect a President entirely against being compelled to testify, lawyers said. In the 1974 case of the Watergate tapes, the Supreme Court ordered Nixon to comply with a subpoena for White House tape recordings because the tapes were critical evidence in the trial of his former aides.

Relevance of Information

“The court said that the need for evidence in a criminal trial can be significant enough to override a claim of presidential privilege or confidentiality,” said E. Stanley Mortenson, another former Nixon lawyer. “If the information North seeks to elicit is central or critical to his defense, then the court may order the President to comply.”

If Reagan and Bush file motions to quash the subpoenas, as expected, North’s lawyers will have 10 days to respond. Then it will be up to U.S. District Judge Gerhard A. Gesell to decide what to do next.

“Gesell can say to North’s lawyers, ‘I will not enforce these subpoenas unless you convince me that the information that (Reagan and Bush) have, or might have, is central to your defense,’ ” Mortenson said. “If it’s information that they can bring in by calling three other witnesses, then the judge may decide not to bother them.

“If North’s argument is that there was a policy emanating from the President that in some way condoned what he did, then from a defense standpoint you can certainly justify calling the President to testify,” he added.

Whatever decision Gesell makes, however, can be appealed to higher courts--potentially delaying the opening of North’s trial even longer.

In the end, Gesell well may accept a compromise under which Reagan and Bush respond to questions without actually appearing in court, the lawyers said.

The trial already has been delayed for months by arguments over the use of officially secret government documents that North has requested for his defense.

North’s lawyers initially asked for 3,500 classified documents to be made available as evidence but Gesell accused them of attempting to “frustrate” the case and ordered them to reduce the list to 300.

North’s lawyers delivered the subpoenas to the Justice Department Friday afternoon. A spokesman said that they were “received” by Robert Ross, an assistant to Atty. Gen. Dick Thornburgh. Officials said that they deliberately avoided using the word “accept,” which might imply a willingness to comply with the orders.

North’s lawyers had contacted the White House earlier in the week to warn that subpoenas were on the way, officials said.

Gesell authorized North’s attorneys last week to issue as many as 26 subpoenas for both witnesses and documents. Justice Department officials said that the two subpoenas for Reagan and Bush have been the only ones delivered to them so far.

Under deadlines set by Gesell, recipients of the subpoenas must respond by Jan. 20--the day Bush becomes President and Reagan becomes a private citizen.

Staff writers James Gerstenzang in Palm Springs and Robert L. Jackson, David Lauter and Ronald J. Ostrow in Washington contributed to this story.