Opening Arguments by Jeffrey Toobin

Author:Jeffrey Toobin
Language: eng
Format: epub
Publisher: Knopf Doubleday Publishing Group
Published: 2017-11-14T05:00:00+00:00

CHAPTER TEN

May It Please the Court

Throughout all the maneuvering about CIPA, Judge Gesell kept moving forward on all the small tasks necessary to bring the case to trial. Late in 1988 he made sure that the federal courthouse sent out jury notices to assemble an adequate pool of potential jurors. He arranged for the defense team to have access to an office where they could assemble before and after court sessions. He ordered the United States marshals to set up adequate security for the courtroom, and directed the clerk to distribute press passes. As long as the possibility still existed that the trial might take place, Gesell was going to be prepared.

As ever, Barry Simon had some further demands for Gesell. At the end of a typically rancorous pretrial session about CIPA in late December, Simon said, “We would strongly suggest that the Court actually set a trial date. We’re in a position where we can’t serve trial subpoenas for the appearance of witnesses—”

Gesell, incredulous, cut him off.

“Do you want me to do it now?” Gesell asked Simon. “I will.”

Simon did. “There’s a change of administration,” he said. “People going to the four corners of the earth and we would like to get subpoenas out on individuals….”

“All right,” Gesell barked. “The trial will start January 31 at nine-thirty in the morning.”

Simon, of course, wanted a later trial date, so he began to pester Gesell once more, saying, “And we do object to the date, Your Honor, but—”

But Gesell had had enough of him. “That’s the date,” he said, leaving the subject emphatically closed.

Amid our general CIPA panic of that time, most of us paid little attention to the reason why Simon demanded a trial date, but his hidden agenda became clear as I watched the news with McIntosh on the Friday night before New Year’s weekend. The lead story on that broadcast—as it would be front-page news across the country on New Year’s Eve—announced that Oliver North had subpoenaed Ronald Reagan and George Bush to testify as defense witnesses in his trial. Simon asked for a trial date so he could issue his subpoenas and give his witnesses a specific day when the trial would begin.

This last bomb in North’s arsenal transformed the complexion of the CIPA debate. North’s subpoena swept the great unanswered question of the Iran-Contra affair—what did Reagan know?—back into the forefront.

Most importantly for us, North’s subpoenas had the unintended effect of softening the administration’s positions on a broad range of classified information issues. North’s presidential subpoenas demonstrated, more clearly than any other episode so far, that political rather than national security considerations governed the administration’s decisions on classified information. If the administration shut down the case now, with subpoenas outstanding to Reagan and Bush, the odor of cover-up would be too strong. Any CIPA-related dismissal would look like the administration used classified information as a pretext to keep the two Republican presidents off the stand. North had improved our hand dramatically.

Flexibility and accommodation became the administration watchwords.

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