Independent counsel: No more, no less a federal prosecutor

Georgetown Law Journal, Jul 1998 by Dash, Samuel

The reversals of these convictions caused even greater delay because of the appeal process and time taken to consider seeking Supreme Court review.39 This setback played another important role in fueling the attacks against Walsh. It added to an earlier blow suffered by Walsh when he was compelled to drop the major cornerstone of his prosecution strategy, the operational conspiracy count against North, Poindexter, Hakim and Richard Secord.40 This count of the indictment went to the heart of the Iran-Contra offenses and the mandate given Walsh by the Special Division of the U.S. Court of Appeals. With the convictions of North and Poindexter reversed and the major conspiracy count dismissed, Walsh's enemies were able to expand their attacks. They accused him of incompetence and claimed he had wasted taxpayers' time and money to convict on petty offenses a handful of officials who had served their country well.

Walsh's Report, however, reveals a different and convincing account of these defeats. The convictions of North and Poindexter by juries were successes for Walsh, rather than failures-and impressive successes at that. The Final Report details at length the handicaps Walsh faced as a result of the publicly televised Iran-Contra hearings and the congressional immunity given to North, Poindexter and Hakim.41 His staff's ability to build cases for the jury despite these handicaps is a testament to their skill and commitment. The reversals of these convictions by the Court of Appeals were no reflection against Walsh. The reversals did not challenge the sufficiency of Walsh's evidence, but were based solely on the impact of the congressional immunity grants. As such, the reversals reflect not on Walsh's conduct as a prosecutor, but on the decision of the congressional committees to grant immunity.

Also, with regard to Walsh's having to drop the important conspiracy count, the Final Report credibly shows, without overtly making the accusation, that Walsh was booby trapped by the Attorney General and the defendants. There appears to be no doubt from the Report's presentation of the evidence collected by the OIC, that Walsh would have been able to prove the charge of conspiracy to the jury and obtain sustainable convictions against North, Poindexter, Hakim and Secord.42 That is, he would have done so if the administration of justice had not been manipulated.

Before trial, the defendants insisted to the court that they needed to obtain from the government certain classified documents in order to defend themselves against the conspiracy count. The Attorney General has authority to release these documents by virtue of a special statute passed by Congress providing for the release of classified documents when needed by the defense in a criminal case.43 By giving this discretion to the Attorney General, Congress manifested its clear intent to allow the federal prosecutor in a serious criminal case to defeat an effort by the defendant to frustrate the prosecution by a demand for classified documents (called "gray mailing") when the Attorney General decides, on balance, that prosecuting the defendant is more important than withholding the documents. Walsh applied to the Attorney General to exercise his discretion in favor of the prosecution. His request was appropriate, particularly because he was able to show that the content of the classified documents was already publicly known. Amazingly, the Attorney General refused to order the documents released.44 Walsh had no alternative but to drop the conspiracy count on the ground that the government (the independent counsel) cannot, on the one hand, be permitted to prosecute defendants for crime, while the same government (the Attorney General), on the other hand, refuses to provide the defendants with evidence they claim is necessary in order to defend themselves fairly. Once again, a significant obstruction caused considerable delay and expense to Walsh. Even more troubling, the obstruction was caused by the Justice Department, which had already admitted its conflicted position by requesting the appointment of an independent counsel.