Pardon Me

When presidents want to do something they know is highhanded and sure to be controversial, they often try to pick a time when the usual watchdogs are asleep. Weekends will do; better yet are holidays, when Congress is out and reporters are off carving up turkeys instead of public officials. Richard Nixon chose a Saturday night-1973-to fire Watergate special prosecutor Archibald Cox. Last week George Bush used Christmas Eve, one of the least-watched television nights of the year, as the occasion to pardon former defense secretary Caspar Weinberger and five others who had been convicted or charged in the interminable Iran-contra scandal.

The problem with this strategy, as Nixon discovered, is that it usually backfires. George Bush had not even hung his Christmas stocking before the Captain Ahab of special prosecutors, Lawrence Walsh, had taken to the airwaves to cry cover-up-and declare that he was now taking aim at the president himself. Coming barely a month before he leaves office, Bush's pardon also risked tarnishing the president's legacy. The humanitarian who saved Somalia suddenly looked liked the arrogant elitist who forgave his friends-and thumbed his nose at the rule of law.

It is possible that the pardons were in fact motivated by the spirit of giving. Weinberger, who is 75 and ailing, was a "true patriot," Bush said. The president has long believed that Weinberger never should have been charged for what, in his view, was a "political witch hunt." Like the other Reagan administration officials pardoned by the president, the former defense secretary did not profit personally from his alleged wrongdoing. (Bush let stand several Iran-contra convictions where financial gain was said to be a motive.)

But others suspected less selfless reasons for Bush's clemency. One was revenge. Only four days before the November election, Walsh had added a count to the case against Weinberger that contradicted Bush's long-maintained contention that he was "out of the loop" as vice president, indicating instead that he was aware of the arms-for-hostage deal at the heart of the scandal. The president, who at that moment believed he was riding a historic comeback surge against Bill Clinton, felt robbed of re-election by the untimely disclosure. By his pardon of Weinberger, Bush may also have been trying to spare himself further embarrassment. Weinberger's trial, scheduled to begin Jan. 5, would have shed more light on Bush's role. The president may have been put on the stand as a witness.

Presidents have pardoned pirates (James Madison after the War of 1812), draft evaders (Jimmy Carter after Vietnam) and baseball owners (Reagan and the Yankees' George Steinbrenner, who was convicted of illegal campaign contributions). But no president has ever pardoned himself. Last week, in an interview with NEWSWEEK, prosecutor Walsh came close to making that charge against Bush. He accused the president of showing "disdain" for the law. In his public statements Walsh compared Bush's pardon to Nixon's so-called Saturday Night Massacre. In that case the president took away the prosecutor from the case. This time, Walsh said, the president had taken away the case from the prosecutor. "The Iran-contra coverup," he angrily declared, "has now been completed." But the independent counsel, who has already spent six years and $35 million, made it clear that the case was far from closed. The next target of his investigation, Walsh more than hinted, would be George Bush.

Only two weeks earlier, on Dec. 11, Walsh had learned that Bush had kept a kind of diary of his presidential quest, beginning in the fall of 1986 (when Iran-contra first broke) and continuing up to his election as president in 1988. Bush's failure to disclose the existence of these notes to the independent counsel constituted "misconduct," Walsh charged. White House officials quickly told reporters that the notes had now been turned over to Walsh, and they only served to back up what Bush had been saying all along: that his knowledge of Iran-contra was at best sketchy. Indeed, Bush was willing to make the diary public, along with testimony he has already given Walsh in private. But Walsh charged that there were crucial gaps in the diary entries, particularly during one key month that he refused to identify.

Would Walsh try to bring some kind of criminal charge against the president? "On the Bush matter," as he called it, Walsh would say only, "I don't know where that would lead." White House aides insist that Walsh does not have a case against Bush, and defense lawyers familiar with the case say that Walsh will need to come up with a real smoking gun to convict a former president. But Walsh is clearly a man possessed, a legal harpoonist who will not be satisfied until he has landed a great white whale otherwise known as the Executive Mansion.

Walsh had planned to use Weinberger's trial to make the case that the Reagan administration had orchestrated-from the top-a massive cover-up. He can still make that claim in his final report, which has been in the works for more than two years. Or he can make the case by trying Bush.

If Walsh had a case against Weinberger, he may have one against Bush as well. According to the indictment, both Bush and Weinberger were at a White House meeting on Jan. 7,1986, at which President Reagan told his advisers that he favored a plan to send missiles to Iran, in exchange for the release of American hostages. Bush attended another meeting, on Nov. 24, 1986, at which the president's men hatched the cover-up, according to Weinberger's indictment. At that meeting, attended by all of Reagan's top advisers, Attorney General Ed Meese announced that the missile shipments to Iran may have been illegal, but that the president did not know about the shipment at the time. "No one contradicted Mr. Meese's incorrect statement concerning President Reagan's lack of knowledge," states the indictment, "although several of those present, including the defendant, Caspar Weinberger, had contrary information." Substitute Bush's name for Weinberger's, and Walsh has at least the germ of a case against the president.

Bush's aides maintain that he must have stepped out of the White House meeting when the cover-up was discussed. In any case, they say, he has no recollection of it. And the apparent willingness of the White House to release Bush's diary suggests that it does not contain a smoking gun. Sources close to the prosecution concede that Bush's notes are not as explicit, and hence not as useful to the prosecution, as those taken by Weinberger-and later used against him after they were discovered by prosecutors searching his papers in the Library of Congress. But the very fact that the White House delayed turning over the notes until just two weeks ago will be the basis of an investigation, Walsh told NEWSWEEK. In an earlier statement, Walsh charged that Weinberger's failure to produce his notes "possibly forestalled timely impeachment proceedings against President Reagan and other officials."

Walsh is nothing if not patient. He will continue to probe the "gaps" he sees in Bush's diary. And if he indicts the president, he has at least one important witness he can call-Weinberger. The former defense secretary cannot take the Fifth; he's been pardoned. He can, however, be charged with perjury if he does not tell the truth on the stand.

The prospect of a cabinet secretary testifying against a former president in a criminal trial is startling, but in a sense it has been a long time coming. In his pardon last week, Bush inveighed against "criminalizing" policy disputes between Congress and the White House. But to Walsh-and to a good many congressmen-the real issue is whether the executive branch can get away with lying to Congress. There was a time when presidents had a free hand in foreign policy. Lawmakers by and large didn't even want to know about the CIA's covert actions. But Watergate and the CIA scandals of the mid-1970s changed all that. By the time Ronald Reagan took office, the executive branch was hemmed in by a web of rules requiring congressional oversight. The solution seized on by Reagan's buccaneering CIA director, William Casey, was to run operations "off the shelf," where they could escape congressional scrutiny. Thus were born the harebrained schemes of Lt. Col. Oliver North, like using the profits from selling arms to the ayatollah to pay for arms to the contras.

Few Americans would be shocked to learn that the Reagan administration tried to hide these activities from Congress. In the post-Watergate era, when voters learn their history by watching far-out movies like Oliver Stone's "JFK," voters are willing to assume the worst about government. If the CIA was somehow implicated in shooting President Kennedy, as the kooky conspiracy theorists attest, what's to stop President Reagan from ignoring the Boland Amendments, which barred military aid to the contras? Still, if voters are jaded, they are also easily bored. Most Americans could never figure out exactly what the Iran-contra scandal was all about. It's doubtful they want to be educated at this late date. Certainly Congress, which botched its investigation of Iran-contra, has little appetite to reopen the matter, beyond giving prosecutor Walsh a forum to state his views. Even Lawrence Walsh may finally give up someday. But the deeper issues-the accountability of presidents, the tension between White House and Congress, even the rule of law itself-will not go away. No pardon can change that.

In extending pardons to Caspar Weinberger and five other former Reagan administration officials, George Bush argued that all six had acted from patriotic motives "whether their actions were right or wrong." Bush said his decision would not prevent disclosure of "some new key fact" about the Iran-contra scandal, and he protested the prosecution of Weinberger and other key players as an attempt to criminalize a dispute over "policy differences." "These differences should be addressed in the political arena," he said. "The proper forum is the voting booth, not the courtroom."

The former defense secretary was indicted in 1992 on felony charges of perjury, making false statements and obstructing congressional investigators. An additional count, brought in October, was thrown out by a federal judge. He was awaiting a January trial.

Former CIA agent-and former head of CIA covert operations in Latin America-Clarridge was indicted in 1991 for perjury and making false statements about a shipment of missiles to Iran. He pleaded not guilty. He was awaiting trial.

The former CIA official was indicted in 1991 on charges of perjury, making false statements and obstructing inquiries into the Iran-contra affair. His first trial ended in a mistrial, but George was convicted last month on two counts of lying to Congress.

Reagan's former national-security adviser pleaded guilty in 1988 to misdemeanor charges of withholding information from Congress. McFarlane was sentenced in 1989 to two years' probation and 200 hours of community service, and fined $20,000.

The former assistant secretary of state pleaded guilty on Oct. 7, 1991, to misdemeanor counts of withholding information from Congress about the Reagan administration's efforts to aid the contras. He was sentenced to two years' probation and 100 hours of community service.

Head of the CIA's Central American Task Force, Fiers worked with Clair George and Oliver North. He pleaded guilty to withholding information about the diversion of money from Iranian arms sales to the contras. Sentenced to a year's probation and 100 hours' community service.

A fund raiser for conservative causes, Channell helped finance supplies for the Nicaraguan contras. Convicted of defrauding the government by soliciting tax-exempt funds. Given two years' probation, but died in a 1990 car accident.

A conservative publicist involved in contra fund raising, Miller pleaded guilty to defrauding the government. Given two years' probation and 120 hours' community service.

Financial organizer of the scheme to supply the Nicaraguan contras, Hakim pleaded guilty to giving Oliver North an "Illegal gratuity"-a security fence for North's home. Sentenced to two years' probation and fined $5,000.

The only Iran-contra defendant in jail, he was a partner of Secord and Hakim. Convicted on income-tax charges. He was fined $40,000 and began his 16-month sentence last summer.

Secord, a retired air force major general, acted as the principal private-sector organizer of the Iran-contra weapons sales and supply network. Pleaded guilty in 1989 to lying to congressional investigators and was sentenced to two years' probation.

In 1990, Reagan's national-security adviser was convicted of obstructing the investigation and lying to Congress. His convictions were set aside when a judge ruled that testimony given to Congress under immunity had been used against him.

Former CIA station chief in Costa Rica, the case against him was dismissed in November 1989 by a federal judge when the government refused to turn over classified documents.

Former Marine Corps Lt. Col. "Ollie" North was a central player in the plan to fund the contras. He was convicted of felonies, but they were thrown out in 1991 when a judge ruled that congressional testimony given under immunity may have tainted his trial.