Time Magazine | December 10, 1990
By Laurence I. Barrett

Though Iran-contra ranked as the most insidious scam of the mud-spattered '80s, not one of the eight convicted offenders has spent a night in jail. Last week a court ruling made it likely that the two key culprits, Oliver North and John Poindexter, would also see their records scrubbed clean in legal terms. Further, the decision may force Congress to choose between , spectacular public hearings and criminal prosecutions in future scandals.

The specific issue before the U.S. Court of Appeals for the District of Columbia dealt only with North, the retired Marine officer who as a White House aide managed the details of the Iran-contra scheme. After he was found guilty of three offenses, a three-member panel of the appeals court last July overturned one conviction on technical grounds and sent the other two back to the trial court. The special prosecutor handling the case, Lawrence Walsh, contested that ruling. But last week the full court let it stand.

The core of the decision was that North's constitutional shield against forced self-incrimination may have been violated. North had testified at the congressional hearings under a grant of partial immunity, meaning Walsh could not use information from North's public testimony in the criminal case unless he had obtained the evidence independently. By a 2-to-1 vote, the appeals panel ruled that the trial judge's scrutiny of this issue had been insufficient. In a dissent, Judge Patricia Wald said the decision would "make the prosecution's burden an impossible one." Poindexter, North's boss at the White House, also testified under an immunity grant, and is appealing convictions on five counts. (His six-month sentence is deferred, pending appeal. None of the other defendants were given prison terms.) Unless Walsh can get the U.S. Supreme Court to overturn the appeals-bench ruling, Poindexter is likely to benefit from the same reasoning applied to the North case. Walsh plans to take the case to the Supreme Court, but many experts expect him to lose. Says Joseph diGenova, the former U.S. attorney in Washington: "Congress didn't know the mess it was creating when it gave the witnesses immunity."

In fact, congressional leaders were aware of the risks and gave Walsh some time to gather evidence before putting North and Poindexter in the witness chair. But the legislators could not know three years ago that the appeals court would apply more stringent standards than ever before. Republican Senator Warren Rudman of New Hampshire and Democratic Congressman Lee Hamilton of Indiana, two of the senior members on the investigating committee, argue that granting immunity was correct regardless of the ultimate impact on the criminal cases. "You had a President on the razor's edge," says Hamilton. "People were talking about impeachment." By that reasoning, it was in the national interest to get out the facts quickly. )

True enough. But the hearing had some odd ripples. One unintended result was to make North something of a national hero. And in the end, the congressional investigators failed to elicit from Poindexter hard information about Ronald Reagan's complicity. That remains murky. Former Senator John Tower, who headed a special Iran-contra investigative commission that operated independently of Congress, suggests in his upcoming memoirs that Reagan was directly involved in a "deliberate" cover-up effort.

The shortcomings of the congressional hearings, together with the latest ruling, suggest that the day of congressional hearings starring criminal suspects is passing. Says House Republican leader Bob Michel: "Congress ought to suppress its interest in public hearings if you want people to go to jail." Presumably, legislators want to punish the guilty at least as much as they covet the publicity yielded by splashy scandal investigations.