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“Opening Arguments: A Young Lawyer’s First Case: United States vs. Oliver North”

by Jeffrey Toobin

Viking, $22.95

If you were ever interested in what the Oliver North trial was really like, then look no further: “Opening Arguments” is your book.

Author Jeffrey Toobin, fresh out of Harvard Law School, went to work for special prosecutor Lawrence E. Walsh in 1986 and eventually helped try the case against the former Marine lieutenant colonel in the Iran-contra investigation. His book recounts his struggle to come to terms with the meaning of life as a prosecutor.

The book almost did not get published. As a prosecutor, Toobin had to maintain confidentiality, a responsibility confirmed in writing when he took the job. Although the Bush administration approved Toobin’s manuscript, the Office of the Independent Counsel – his boss, Judge Walsh – did not. After months of negotiation, Toobin and his publisher finally won a lawsuit allowing “Opening Arguments.”

The book does not reveal new secrets about Iran-contra, but it does describe life inside the independent prosecutor’s office. And while that disclosure is questionable itself, it nonetheless is a fascinating look at one of the most tangled trails of deception in our government. Toobin also illuminates the gross error committed by Congress in holding public hearings and granting immunity before the criminal trial – for little apparent reason other than congressional preening before the camera.

The only way Congress could override any Iran-contra defendant’s Fifth Amendment right against self-incrimination was to grant immunity from being prosecuted on the basis of their own forced testimony. As a result, prosecutors had to demonstrate their ignorance of the public hearings, a nearly impossible task, as demonstrated by the eventual reversal of North’s conviction. Walsh currently is seeking to have North’s sentence reinstated by the Supreme Court.

Toobin carefully weaves underlying events with a description of the prosecution’s problems, making the story at once accessible and disturbing. He is at his best, though, in vividly retelling the courtroom drama itself: The story fairly crackles as chief prosecutor John Keker, like North a Marine veteran of Vietnam, faces off against defense counsel Brendan (“I am not a potted plant”) Sullivan.

In Keker’s cross-examination, he brilliantly turned North’s evasive and self-serving answers against him in a way that befuddled Congressmen had never seemed able to do in their earlier hearings. For example, North testified that he “felt like a pawn in a chess game being played by giants” when ordered to hold a deceptive briefing for congressmen.

Keker then carefully led North through his training at the Naval Academy, forcing him to admit that he was instructed to refuse unlawful orders: “You were trained that if an order is unlawful, you can’t say something like, `Oh, I felt like a pawn in a chess game among giants,’ right?”

In a broader sense, though, this book is not about the scandal itself or even “a young lawyer’s first case”; it really is about what constitutes a crime.

Toobin makes clear where he places blame for the entire Iran-contra affair: Ronald Reagan. But whether a crime was actually committed – the point of the entire prosecution – turns out to be a bit more complex. Starting with a broad and ominous conspiracy charge against North, Walsh eventually was forced to pursue only narrow criminal charges: obstruction of justice, lying to Congress, shredding documents, defrauding the government, and theft. He only obtained convictions on the three most obvious: lying, cheating and stealing.

In the end, Toobin concludes that only those deserve the crime label. Arrogance is not a crime, “Nor is a reprehensible policy in Central America or an inept attempt to free American hostages. Only crimes are crimes.”

Broader judgments, he decides, involve distinctions which are personal, idiosyncratic and individualistic – and recognizing the difference between “moral as opposed to criminal responsibility will preserve the integrity of both.”

But is it really just personal morality or “philosophical difference” that condemns foreign-policy conduct explicitly forbidden by law? Toobin’s rush to his conclusion confuses problems of proof – endemic to any litigation, criminal or otherwise – with defining what is and what is not criminal conduct.

Simply because prosecutors were unable to obtain untainted evidence to convict North on the larger charges does not mean that his conduct was not criminal. It means only that each sphere of the government should stick to its assigned role: Congress to enact the law, the president to execute and obey that law, and the criminal-justice system to prosecute violations.

When the roles get confused and the president ignores the law while Congress feebly attempts to enforce it, true prosecution is impossible. That’s the real lesson of Iran-contra, and President Reagan and Oliver North are hardly the only villains.