But Was It a Crime?

By Kenneth M. Pierce

When Oliver North, Robert McFarlane and John Poindexter appeared on Capitol Hill, the prospect of indictments loomed over them. Even before Poindexter testified last week, his lawyer announced that the rear admiral was already the target of a criminal investigation. If any of the central figures are in fact indicted, what charges are they likely to face?

In exchange for their testimony, North and Poindexter were promised that only evidence gathered independently of their congressional appearances could be used against them in criminal prosecutions. Independent Counsel Lawrence Walsh, who has been seeking such evidence, ordered key staffers not to watch the hearings, to avoid being tainted by protected testimony.

Many believe Walsh will begin handing up indictments as early as next month. But some prosecutors question whether the independent counsel can win convictions, particularly after the outpouring of sympathy for North. Observes former Watergate Prosecutor James Neal: In Watergate, "serious criminal statutes were involved. Officials were obstructing an FBI investigation, there was a 'smoking-gun tape,' the White House was paying burglars to keep quiet. Here, everything is murky." Attorney Arthur Christy, a former special prosecutor who investigated charges against Jimmy Carter's aide Hamilton Jordan, also doubts that convictions can be achieved. Says he: "A good prosecutor might convince some jurors that North broke the law, but I doubt he could get twelve."

Others sharply disagree. Says Scott Armstrong, executive director of the National Security Archive, a nonprofit research institute: "The independent counsel has taken testimony from accountants and underlings that makes the case look different and the motive more sinister."

Based on testimony so far, criminal charges could be brought on more than half a dozen actions. Among them:

Obstruction of Justice. Destroying evidence in advance of an investigation by Justice Department attorneys could fit the definition of obstruction. Shredding sensitive Government documents (which North said was done to protect lives and U.S. secrets) could also result in a charge of destruction of Government property.

Lying to Congress. McFarlane, North and Poindexter have admitted that they chose to mislead Congress in letters and statements about their activities in support of the contras. Although North was not under oath when he gave false testimony, all three men could be charged with making false statements to a Government agency.

Conspiracy. A broad-gauged section of the U.S. Code makes it a crime to conspire to defraud the Federal Government of money or property; the doctrine also applies to efforts to interfere with the proper functioning of any Government agency. Though it is difficult to prove conspiracy, siphoning off arms-sales profits that may have belonged to the U.S. Treasury, selling weapons under incorrect procedures, and the jumble of other deceptions could qualify. North was named, but not indicted, as a co-conspirator in a tax fraud involving improper deductions claimed for contributions used to purchase contra arms.

The much discussed Boland amendment, which prohibited military aid to the contras, does not carry criminal penalties, but a conspiracy to violate it could be considered criminal.

Ultimately, the fate of North and the others rests with the contents of sealed envelopes of evidence that Walsh filed with the U.S. district court in Washington before the major witnesses began their testimony to Congress. When that evidence is presented, public reaction will not count for much. As former Watergate Prosecutor Richard Ben-Veniste puts it, "The criminal law is not a beauty contest."

With reporting by Anne Constable/Washington