A Behind-the-Scenes Glimpse of the Iran-Contra Case

NEW YORK —  On Aug. 8, 1974, Jeffrey Toobin watched Richard M. Nixon announce his resignation from the presidency on television and drank his first glass of champagne. Barely 14, he had just discovered a new group of heroes--the men and women who successfully prosecuted the Watergate case.

The child of liberal parents, Toobin says he was moved by the triumph of “good over evil” in that scandal and hoped that one day he could go on the same kind of legal crusade. Less than 13 years later, he got his chance.

Fresh out of Harvard University Law School, Toobin signed on as the youngest assistant with the Office of the Independent Counsel investigating the Iran-Contra scandal. He played a key role in prosecuting its biggest case, the trial of Lt. Col. Oliver L. North.

“This was my big opportunity,” he says. “I was a Watergate baby, and I had a chance at the age of 26 to make a difference, to fight the good fight, and to really learn something about the law.”

Looking back, Toobin says he’s done all three--but at a price.

Like many prosecutors in celebrated cases before him, he chose to write about his experiences. The result is “Opening Arguments” (Viking: $22.95), a behind-the-scenes glimpse of the wrangling among Iran-Contra lawyers as they developed their complex case against North and other defendants.

It makes for fascinating reading--but don’t tell that to former Judge Lawrence Walsh, who heads the Office of Independent Counsel. For more than a year, Walsh has tried to suppress parts of Toobin’s book, claiming it reveals grand jury secrets, compromises pending Iran-Contra cases and exposes confidential legal discussions that staff members held among themselves.

The issue came to a head last month, when Toobin won a landmark court case giving him permission to publish his book. It marks the first time that an author has won a court order barring a governmental agency from trying to block a book in advance of publication, according to Martin Garbus, a First Amendment specialist who argued the case for Viking Books.

“We’re talking about a case that ranks right up there with the U.S. Supreme Court decision on the Pentagon Papers,” Garbus says, referring to the celebrated incident in which several newspapers won the right to publish confidential documents about the Vietnam War. “The court significantly reduced the grounds for suppressing a book that allegedly contains classified or secret information.”

Toobin, now 30, has since left the independent counsel’s office for a job with the U.S. attorney’s office in Brooklyn and clearly relishes his victory. A slight man with curly hair, he looks proudly at one of the first bound copies of “Opening Arguments” in his Manhattan apartment and says he had every right to publish the controversial book.

But there is a bitter aftertaste, which makes it something less than a clear-cut triumph for the author. Walsh is appealing the ruling and shows no sign of dropping the matter. The case holds out the bizarre possibility that an appellate court might rule against Toobin--agreeing that his book violates grand jury secrets--even though it went on sale last week across the nation. A Viking spokesman refused to say what the company might do in that eventuality.

More important, there are hard personal feelings between Walsh and his former employee. The chief prosecutor has declined to be interviewed, citing pending Iran-Contra cases. But a spokesman for the independent counsel says Walsh feels betrayed and is particularly irked that Toobin announced his decision to write a book only after resigning his staff position in May, 1989.

There is a “very bad feeling” in the office that the young author took advantage of an easygoing collegiality among fellow lawyers, the Iran-Contra spokesman says. Toobin documented lengthy conversations without warning them that such material might one day appear in a book, and that “has raised a strong ethical sense that this is wrong,” the source says.

Finally, there is the matter of timing. Walsh is asking the U.S. Supreme Court to reinstate North’s 1989 convictions on charges of lying to Congress, shredding documents and illegally accepting payments for a home security fence. The charges were thrown out last year by an appellate court.

Meanwhile, the case of former National Security Agency chief John M. Poindexter is also on appeal. A spokesman for Walsh says that he may yet seek indictments of other Iran-Contra figures whose potential legal problems--and the strategies to attack them--are detailed at length in Toobin’s book.

“If Jeff had waited (to publish the book), I think it would be an entirely different picture,” says the spokesman. “At a later point, I don’t think Walsh would have objected to much of this material.”

For his part, Toobin insists that he has not betrayed any confidences and rejects the idea that his book will embarrass Walsh. But he admits that it takes readers where they seldom go--into the minds of prosecuting attorneys.

In its most revealing sections, “Opening Arguments” shows the Iran-Contra lawyers arguing endlessly over whether North should be indicted on charges of violating the Boland Amendment, a congressional law that barred U.S. aid to the Nicaraguan rebels, known as Contras. It was a tricky question that was finally settled when U.S. Judge Gerhard Gesell threw out that count of the indictment in North’s trial, saying it could lead to the disclosure of top-secret information.

The book also shows that Toobin and others strongly believed that Elliott Abrams, former assistant secretary of state for Central and South America, had lied to Congress about aid to the Contras. In the end, however, prosecutors decided they could not prosecute him, citing lack of evidence.

Does the book violate grand jury secrets and other legal confidences? In his ruling last month, U.S. District Court Judge John F. Keenan held that virtually all of the material in Toobin’s work had appeared previously in the media or had been revealed in public hearings, so it could not be considered secret.

The judge sidestepped all questions of whether the author had acted unethically, saying the issue was not properly before his court. But he said Toobin had a made a good-faith effort to meet Walsh’s objections. The judge also assailed the independent counsel for failing to provide examples of what he found objectionable.

From the beginning, Toobin’s case has been dominated by scholarly questions of First Amendment law and legal ethics. But in the months leading up to the Jan. 30 decision, it also got personal. At one point Walsh threatened to prosecute his former aide, and he also tried to bring him up on disciplinary charges before the New York bar. He eventually backed away from both threats.

It all amounts to an “angry fight in the family,” says the author, shaking his head. “It’s Walsh against me. It’s a real shame.”

When he first joined the Iran-Contra team, Toobin couldn’t believe his good fortune. North and other players seemed vulnerable to a tough prosecution, and the young attorney was certain that Walsh’s office would carry the day.

As “Opening Arguments” makes clear, however, the case got more complex and frustrating as time went on. Defendants who once seemed dead in the water mounted shrewd legal defenses, and investigators were hampered by national security limitations on the evidence they could develop.

At the end of the book, Toobin notes his professional coming of age, saying that he has learned much about the limits of prosecutors and criminal law. Even though Iran-Contra may have been an appalling story, he says, there was simply not enough evidence to throw a lot of people in jail.

“I’ve realized not only that prosecutors can’t change the world . . . they shouldn’t try,” he says. “I’ve seen that prosecutors shouldn’t go on crusades, and that criminal law can’t solve all the world’s problems.”

Equally important, Toobin concedes that his case has sparked questions about legal ethics. Indeed, some experts say the clash between Toobin and Walsh has highlighted dilemmas for lawyers that go well beyond debates over First Amendment freedoms and the nuances of classified information.

Stephen Gillers, a national expert on legal ethics who teaches at New York University Law School, questions whether the book violates an unspoken agreement among lawyers not to reveal professional confidences to outsiders.

“I think this young man has made a mistake,” Gillers says. “I’m a strong believer in the First Amendment, but the First Amendment is not a license to betray your clients.”

Others rush to Toobin’s defense, saying there is an overriding public interest in learning how the Iran-Contra investigation was conducted.

Kevin Goering, a First Amendment attorney who practices in New York, suggests that “any lawyer would be troubled” by the kind of disclosures in “Opening Arguments.” But he adds that “in this case, such discomfort may have to yield to the public’s right to know about its government.”

Amen, says Toobin, who notes that there is ample precedent for books written by prosecutors about their cases. Why should he be any different?

“Look at Watergate,” he says. “You had books written by prosecutors like Richard Ben-Veniste and others about what they did. It’s not as if I am the first person who ever wrote this kind of book.”

But then he drops his defensive tone, sounding very much like a lawyer who, by reflex, considers the other side of an argument. Someone who no longer goes on crusades.

“Look, I’m not so naive as to think that everyone thinks that my writing this book was a great idea,” Toobin says quietly. “I recognize that there are people who don’t approve of it. But nobody had a right to harass me. I’m very embittered by what has happened.”