Conspiracy Theories

What kind of criminal prosecutions might grow out of the Iran-contra affair? The answer can be found in Title 18, Section 371 of the U.S. Code. In exceptionally sweeping language, that statute declares: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose . . . each shall be fined not more than $10,000 or imprisoned not more than five years, or both."

Independent Counsel Lawrence Walsh has already used that provision to convict two minor Iran-contra figures. Fund Raisers Carl Channell and Richard Miller have pleaded guilty to a charge of conspiring to defraud the U.S. of tax money; the pair solicited supposedly deductible contributions for the entirely nondeductible purpose of buying weapons for the contras. In negotiations with congressional investigating committees, Walsh has left no doubt that conspiracy is the main charge he intends to bring against many more prominent people. Says a source close to Walsh's investigation: "Conspiracy could take in the whole picture." That was pretty much what happened during Watergate: 17 people, including Nixon Aides John Ehrlichman and H.R. Haldeman, were convicted under the conspiracy statute, and Nixon was named as an "unindicted co-conspirator."

In many ways, the law is a prosecutor's dream. Courts have interpreted its "defraud" section to apply to any conspiracy that interferes with the lawful functioning of Government, even if the plot did not result in any other provable crime. People who play widely varying roles in a conspiracy can be judged equally guilty, and only one defendant need be shown to have committed "any act to effect the object of the conspiracy." Thus the prosecutor does not have to focus on the narrow specifics of allegedly illegal acts; he can lay a long, complex story before the jury in its entirety. He can use the testimony of minor conspirators to convict more important figures; Channell and Miller have already named Oliver North as their co-conspirator. And in conspiracy cases a jury can weigh hearsay evidence.

One obvious possibility is that Walsh might accuse North and others of conspiring to violate the Boland amendment, which for two years forbade any direct or indirect Government assistance to the contras. As a civil statute, the amendment provides no penalties, but any Government official or private citizen found guilty of conspiring to violate the law could be sent to jail nonetheless.

Walsh might also charge some people, particularly North, Richard Secord and others who shredded documents, with conspiracy to obstruct justice. Legal experts predict Walsh will further seek indictments against officials, including North and possibly Robert McFarlane, who helped draft a chronology of the Iran-contra affair that contained serious inaccuracies. The chronology was intended to prepare the President for his Nov. 19 press conference and to help guide the late CIA Director William Casey through his congressional testimony. Here the charge would be conspiracy to suborn perjury. Walsh would not have to prove that Casey or anyone else actually gave false testimony. He would only need to show that the officials who drafted the chronology knew it was inaccurate.

James Hamilton, a former Watergate counsel, voices one caution. In conspiracy cases, he says, "it is easy to get an indictment. On the other hand, you may get a situation where the jury doesn't want to convict." Jurors might sympathize with Government officials who contended they were trying in good faith to carry out President Reagan's policies. A jury could bridle at the idea of sending McFarlane, North and others to jail for what it might consider disastrous political misjudgment, but nothing more.