A Scandal from the Past

I recently completed the chapter of my new book dealing with Ronald Reagan and George Bush I, and I had to revisit the Iran-Contra affair. Earlier this year, as I mentioned, I had revisited Watergate writing a talk for a conference.  I was sufficiently intrigued to get Firewall, Special Prosecutor Lawrence Walsh's account of his investigation of Iran-Contra, out of the library, and once I opened it I could hardly put it down.  It's an interesting story of the continuing struggle by the post-1945 executive branch to escape any accountability for anything it does in the national security realm.  The Nixon administration lost that battle, but the Reagan administration eventually won it,   No subsequent administration has had any serious problems doing what it wanted to do.

Many younger readers will know little about Iran-Contra, and older ones may need their memories to be refreshed.  The United States had broken diplomatic relations with Iran after an Islamic regime took power there in 1979 and took and held US Embassy personnel hostage for over a year.  Iran had subsequently become involved in a war with Iraq, and pro-Iranian groups had taken several American hostages in Lebanon, then in the midst of civil war.  At the same time, in the early 1980s, the Reagan Administration CIA had set up a covert war against  the Sandinista regime in Nicaragua, which Reagan defined as an expansionist Communist enemy of the United States.  In 1985, after protracted controversy, the Congress passed what was known as the Boland Amendment, banning any US support of the Contras and prohibiting all intelligence agencies from assisting the Contras.

The Reagan Administration had immediately begun raising money from domestic and foreign sources, including foreign sources such as the Saudi government, for the Contras.  This was overseen by National Security Adviser Robert McFarlane and his replacement John Poindexter while Marine Lt. Colonel Oliver North did most of the actual work.  North enlisted a retired Air Force General, Richard Secord, to help acquire arms for the Contras, and CIA personnel continued to work with him in violation of the law.  Not until November 1986 did any of this surface, after an airplane carrying a CIA agent was shot down by the Sandinistas (the agent survived.)

Meanwhile, in late 1985, the Israeli government--which wanted to re-establish a relationship with Iran, a long-time covert ally--suggested that Iran might secure the release of the American hostages in Lebanon if Israel could ship some Hawk missiles to Iran on behalf of the United States, which would then replace the missiles.  Ronald Reagan, desperate to secure the release of the hostages, approved the deal at McFarlane's request in the presence of Secretary of State George Schultz.  Other shipments followed.  Reagan retroactively authorized the first shipment, which was contrary to the Export Control Act, with an official finding authorizing it as a covert operation, but no one informed key Congressmen and Senators as the law required.  As shipments continued--even though the Iranians only released a couple of hostages, and seized a couple more as well--North and Secord began overcharging the Iranians, depositing the money in secret Swiss bank accounts, and using that money to buy supplies and fund operations for the Contras.  Some of the money was reserved for North and Secord's personal use.

Lebanese sources broke the story of the arms for hostages deal in early November 1986, and Reagan promptly denied that he had violated his pledge not to negotiate with terrorists or traded arms for hostages.  He asked his long-time aide and Attorney General Ed Meese to investigate what had happened for him.  Meese's real task, it becomes clear from Walsh's book, was to design the administration's cover story and get everyone on board for it.  While he was doing that, North and his secretary were shredding numerous documents detailing his activities.  Meese decided to endorse Reagan's false claim that he had not approved the first shipment--which was clearly illegal--to save the President from a possible impeachment.  Meanwhile, he discovered how North, with Poindexter's approval, had been using the proceeds of the arms sales to help the Contras. To deal with that equally serious problem, he and chief of staff Donald Reagan decided the North and Poindexter would have to be fired on the spot, making them the scapegoats for the diversion of funds, which had never been formally authorized.  Reagan had to appoint his own investigating commission led by Senator John Tower, and Congressional committees began investigating as well.  After the revelation of the diversion he gave in to pressure to appoint Walsh, a former judge and prosecutor and a Republican, as special counsel with broad investigative powers to identify and prosecute any crimes that had been committed.

What followed was a long, multi-front struggle by the administration of protect itself and to try to make sure that no loyal administration officials were convicted and sent to jail.  The cases against North and Poindexter were complicated by the joint Congressional investigating committee's decision to grant them both immunity to get them to testify and give the committee the headlines that it wanted. That meant that Walsh, at their trials, would have to be able to show that all the evidence against them had been collected without any reference to their testimony, which he and the other lawyers on the case could not even watch.  More seriously, the administration and North's and Poindexter's lawyers--who may have been working together to some extent--found a way to get the presiding judge to throw out Walsh's most serious constitutional charge against them, that of a conspiracy to violate both the Export Control Act and the Boland Amendment--a conspiracy that might easily have included Reagan, Schultz, and Defense Secretary Caspar Weinberger, all of whom were involved in the arms sales if not the diversion, as well. As part of their defense, North and Poindexter subpoenaed reams of classified documents from the CIA and other agencies.  When the agencies refused to release them, Walsh had to drop that critical count.

Both North and Poindexter were tried and convicted on various charges, including preparing false evidence for Congress, accepting illegal gratuities from Secord, and destroying documents.  Assistant Secretary of State Elliot Abrams pled guilty to one count of making false statements to Congress--a misdemeanor--because he had denied raising funds for the Contras, after soliciting a large contribution from the Sultan of Brunei.  Two CIA officers involved in the operation and former National Security Adviser Robert McFarlane were also convicted of withholding information from Congress. Then, after the convictions of North and Poindexter, Walsh opened a new front in his investigation.

Bit by bit, Walsh discovered that Secretary of State Schultz, Secretary of Defense Weinberger, and Vice President George H. W. Bush had all kept private notes of many important meetings relating to Iran-Contra, including key meetings in November in which the Administration put its cover story together. All of them had concealed these notes from investigators, Weinberger most flagrantly of all.  Although Schultz and Weinberger had both opposed the arms sales to Iran--and no proof surfaced that they knew about their proceeds going to the Contras--they had kept important evidence of who knew what when away from the Congressional investigators and prosecutors, and Weinberger, Walsh decided, had made clearly false statements denying that he had any such material.  The material would have confirmed that Reagan had approved the first illegal 1985 arms shipment to Iran and that Bush, who successfully ran for President in 1988, had supported the Iranian policy.  It took until 1992 for Walsh to find out what Weinberger had done, at which point he prepared to indict him.  The Washington Republican political establishment, led by Senate Minority Leader Bob Dole, mounted a sustained attack on Walsh's whole operation as a politicized waste of money, and called upon George Bush to pardon Weinberger. Weinberger's lawyers did what they could to delay the indictment--although Weinberger steadfastly refused to plead to a misdemeanor charge--with the result that the indictment was finally issued at the climax of the presidential campaign, in which Bush was soundly defeated by Bill Clinton.

On December 24, 1992, President Bush issued the following proclamation.

Today I am exercising my power under the Constitution to pardon former Secretary of Defense Caspar Weinberger and others for their conduct related to the Iran-Contra affair.

For more than 6 years now, the American people have invested enormous resources into what has become the most thoroughly investigated matter of its kind in our history. During that time, the last American hostage has come home to freedom, worldwide terrorism has declined, the people of Nicaragua have elected a democratic government, and the Cold War has ended in victory for the American people and the cause of freedom we championed.

In the mid 1980's, however, the outcome of these struggles was far from clear. Some of the best and most dedicated of our countrymen were called upon to step forward. Secretary Weinberger was among the foremost.

Caspar Weinberger is a true American patriot. He has rendered long and extraordinary service to our country. He served for 4 years in the Army during World War II where his bravery earned him a Bronze Star. He gave up a lucrative career in private life to accept a series of public positions in the late 1960's and 1970's, including Chairman of the Federal Trade Commission, Director of the Office of Management and Budget, and Secretary of Health, Education, and Welfare. Caspar Weinberger served in all these positions with distinction and was admired as a public servant above reproach.

He saved his best for last. As Secretary of Defense throughout most of the Reagan Presidency, Caspar Weinberger was one of the principal architects of the downfall of the Berlin Wall and the Soviet Union. He directed the military renaissance in this country that led to the breakup of the communist bloc and a new birth of freedom and democracy. Upon his resignation in 1987, Caspar Weinberger was awarded the highest civilian medal our Nation can bestow on one of its citizens, the Presidential Medal of Freedom.

Secretary Weinberger's legacy will endure beyond the ending of the Cold War. The military readiness of this Nation that he in large measure created could not have been better displayed than it was 2 years ago in the Persian Gulf and today in Somalia.

As Secretary Weinberger's pardon request noted, it is a bitter irony that on the day the first charges against Secretary Weinberger were filed, Russian President Boris Yeltsin arrived in the United States to celebrate the end of the Cold War. I am pardoning him not just out of compassion or to spare a 75-year-old patriot the torment of lengthy and costly legal proceedings, but to make it possible for him to receive the honor he deserves for his extraordinary service to our country.

Moreover, on a somewhat more personal note, I cannot ignore the debilitating illnesses faced by Caspar Weinberger and his wife. When he resigned as Secretary of Defense, it was because of his wife's cancer. In the years since he left public service, her condition has not improved. In addition, since that time, he also has become ill. Nevertheless, Caspar Weinberger has been a pillar of strength for his wife; this pardon will enable him to be by her side undistracted by the ordeal of a costly and arduous trial.

I have also decided to pardon five other individuals for their conduct related to the Iran-Contra affair: Elliott Abrams, Duane Clarridge, Alan Fiers, Clair George, and Robert McFarlane. First, the common denominator of their motivation -- whether their actions were right or wrong -- was patriotism. Second, they did not profit or seek to profit from their conduct. Third, each has a record of long and distinguished service to this country. And finally, all five have already paid a price -- in depleted savings, lost careers, anguished families -- grossly disproportionate to any misdeeds or errors of judgment they may have committed.

The prosecutions of the individuals I am pardoning represent what I believe is a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences. These differences should be addressed in the political arena, without the Damocles sword of criminality hanging over the heads of some of the combatants. The proper target is the President, not his subordinates; the proper forum is the voting booth, not the courtroom.

In recent years, the use of criminal processes in policy disputes has become all too common. It is my hope that the action I am taking today will begin to restore these disputes to the battleground where they properly belong.

In addition, the actions of the men I am pardoning took place within the larger Cold War struggle. At home, we had a long, sometimes heated debate about how that struggle should be waged. Now the Cold War is over. When earlier wars have ended, Presidents have historically used their power to pardon to put bitterness behind us and look to the future. This healing tradition reaches at least from James Madison's pardon of Lafitte's pirates after the War of 1812, to Andrew Johnson's pardon of soldiers who had fought for the Confederacy, to Harry Truman's and Jimmy Carter's pardons of those who violated the Selective Service laws in World War II and Vietnam.

In many cases, the offenses pardoned by these Presidents were at least as serious as those I am pardoning today. The actions of those pardoned and the decisions to pardon them raised important issues of conscience, the rule of law, and the relationship under our Constitution between the government and the governed. Notwithstanding the seriousness of these issues and the passions they aroused, my predecessors acted because it was time for the country to move on. Today I do the same.

Some may argue that this decision will prevent full disclosure of some new key fact to the American people. That is not true. This matter has been investigated exhaustively. The Tower Board, the Joint Congressional Committee charged with investigating the Iran-Contra affair, and the Independent Counsel have looked into every aspect of this matter. The Tower Board interviewed more than 80 people and reviewed thousands of documents. The Joint Congressional Committee interviewed more than 500 people and reviewed more than 300,000 pages of material. Lengthy committee hearings were held and broadcast on national television to millions of Americans. And as I have noted, the Independent Counsel investigation has gone on for more than 6 years, and it has cost more than $31 million.

Moreover, the Independent Counsel stated last September that he had completed the active phase of his investigation. He will have the opportunity to place his full assessment of the facts in the public record when he submits his final report. While no impartial person has seriously suggested that my own role in this matter is legally questionable, I have further requested that the Independent Counsel provide me with a copy of my sworn testimony to his office, which I am prepared to release immediately. And I understand Secretary Weinberger has requested the release of all of his notes pertaining to the Iran-Contra matter.

For more than 30 years in public service, I have tried to follow three precepts: honor, decency, and fairness. I know, from all those years of service, that the American people believe in fairness and fair play. In granting these pardons today, I am doing what I believe honor, decency, and fairness require.

Now, Therefore, I, George Bush, President of the United States of America, pursuant to my powers under Article II, Section 2, of the Constitution, do hereby grant a full, complete, and unconditional pardon to Elliott Abrams, Duane R. Clarridge, Alan Fiers, Clair George, Robert C. McFarlane, and Caspar W. Weinberger for all offenses charged or prosecuted by Independent Counsel Lawrence E. Walsh or other member of his office, or committed by these individuals and within the jurisdiction of that office.

In Witness Whereof, I have hereunto set my hand this twenty-fourth day of December, in the year of our Lord nineteen hundred and ninety-two, and of the Independence of the United States of America the two hundred and seventeenth.

The phrase "criminalization of policy differences" had apparently been coined in 1988 to excuse the Iran-Contra offenders--by whom I have not been able to establish.  As Walsh immediately pointed out, it was not policy differences for which these men had been charged, but rather lying about what the Administration had been doing.  Bush was arguing in effect that the executive branch had a right to pursue policies covertly that had not been approved according to law, and to respond falsely when Congress or prosecuting authorities asked about what they had been doing.  This was the last and decisive act of a coverup that had begun in November 1986 when the scandal first came to light.  President Reagan, unlike President Nixon, had completely escaped accountability for his illegal acts, North and Poindexter had used the importance of their role to get immunity and overturn their convictions, and Bush, unlike Nixon, had pardoned nearly all the convicted criminals in the enterprise. Republicans, it seems, had learned how to get away with it.

Republicans who had called for the repeal of the law authorizing the appointment of independent counsels found their own use for them during the Clinton administration, when they used their influence to prolong an investigation of Bill Clinton's Whitewater investments that eventually mutated into an inquisition about his sex life and led to his impeachment.  Clinton, like Bush, issued a burst of pardons in his last days in office, although not to conceal evidence of his own wrongdoing.  The Bush II administration allowed the CIA to embark on a torture campaign against terrorist suspects, many of them completely innocent.  Congress eventually outlawed these practices thanks largely to John McCain, but Barack Obama made no effort to hold anyone accountable for them after becoming President.  Donald Trump shamelessly used the pardon power to exonerate at least four close associates, Paul Manafort, Roger Stone, Michael Flynn, and Stephen Bannon, of various crimes--and was twice acquitted in impeachment trials nonetheless.

Watergate seemed at the time to restore executive branch accountability in the midst of the Cold War.   It did not.  Walsh's book tells the story of a long, unsuccessful struggle against a partisan background.  Partisanship has only grown worse, and may doom the current attempts to hold Donald Trump accountable for various out-of-office misdeeds as well.