OPENING ARGUMENTS:
A Young Lawyer's First Case, U.S. v. Oliver North

By Jeffrey Toobin. Viking Press, New York, N.Y. 355 pages. $22.95.

New York Law Journal, Friday, February, 22, 1991
Reviewed by Jean M. H. Fergus.

A specter is haunting Washington—the specter of Watergate. It appears even in Judge John F. Keenan's decision permitting the publication of Jeffrey Toobin's book, Opening Arguments: A Young Lawyer's First Case, U.S. v. Oliver North.  No ghosts are exorcised by Mr. Toobin. Rather than a closet full of skeletons, Mr. Toobin produces an often witty, readable story of a young lawyer's remarkable brush with power, justice and, one now suspects, fame and fortune.

The reader, seeking revelations to warrant the Independent Counsel's reluctance to clear this American "Spycatcher" for an anxious public, may be disappointed by the absence of sensation in the book itself, but hardly by the breezy humor of Mr. Toobin's expose. An extremely skillful and talented writer, Mr. Toobin has an ability to distill complex legal arguments and make them comprehensible. This story of the Iran-Contra case, one of the largest and most political of the last decade, is a must read for those whose views fall anywhere on the political spectrum.

Mr. Toobin was not even a minted attorney when he wangled a place on the Iran-Contra investigation team, anxious to be part of this replay, in his mind, of Watergate. From the first, the investigation team faced problems. They all agreed that they had the criminal, Oliver North; now, they must find the crime. Mr. Toobin exposes the division within the Office of Independent Counsel (OIC) over one of the most significant potential charges: the violation of and conspiracy to violate the Boland Amendment. Those who favored building the case against North on Boland included Lawrence Walsh, his second-in-command "born to pinstripes" Guy Struve, and John Keker, who was later chosen to lead the prosecution of North. According to Mr. Toobin, the pro-Boland group had one thing in common: they were civil, not criminal, litigators. Although Boland prohibited the CIA and other Intelligence agencies from providing support to the Contras, it was not a criminal statute. Further, some questioned whether or not North's activities violated it. The experienced prosecutors on the team, Bob Shwartz, David Zornow and Michael Bromwich, viewed Boland with suspicion and preferred to follow the financial angle, to "dirty him (North) up and portray him as a thief." After all, stealing was a crime that any jury could understand. Ultimately, Boland was dropped and the final charges concentrated on what the prosecutors hoped would be provable crimes: "lying, cheating and stealing."

Mr. Toobin makes it clear that Oliver North was not the only target in the Independent Counsel's Boland sights. Some of the pre-publication controversy was stirred up by Mr. Toobin's recounting the efforts of the prosecutors to build a case against Elliot Abrams, then Assistant Secretary of State for Central and South America, and a case against the CIA. Even with "an enthusiasm that bordered on the unseemly," Mr. Toobin was unable "to get him (Elliot Abrams) for lying." The CIA trial, too, petered out in Costa Rica with ex-president Monge's denial—"nunca, nunca, nunca"—of any quid pro quo arrangement to help the Contras. As a prosecutor, Mr. Toobin learned his first lesson: you must prove, not just suspect a crime. As a writer, he is released from the prosecutorial standard.  Whether or not Mr. Toobin has now proven his case, the reader must decide.

The trial itself is something of a letdown. As Mr. Toobin points out, "the case—the entire case—would come down to John Keker's cross examination of North." Keker, an ex-Marine and Vietnam veteran, does manage to "dirty him (North) up." North admitted that he accepted the gift of a security fence, then falsified his records to show that he intended to pay for the fence himself. Keker's reference in his summation to Adolf Hitler, provides North's attorney, the feisty Brendan "I am not a potted plant" Sullivan, with a damaging comeback. Arguing that the government was again overreaching, Sullivan retorted: "anyone that will link Colonel North to Adolf Hitler is not credible and should not be believed."

As befits the chronicler, Mr. Toobin has the advantage. He can and does point out the weaknesses, mistakes and failings of the other side while, at the same time, building up the prosecution's case. Exultant at the end of the presentation of the evidence, Toobin writes that the government had proven all 12 charges beyond a reasonable doubt. Perhaps, but not in the minds of the jurors who returned guilty verdicts on only three of the 12 charges. These "real crimes" included shredding, acceptance of a security fence, and aiding and abetting the changes in the Iran chronologies given to Congress.

The verdict proved a Pyrrhic victory for the government. North received a sentence of two years probation, a fine and 1,200 hours of community service. Last year, this verdict was reversed and, except for the final report due from the Office of Independent Counsel, the case against North is over.

Mr. Toobin's decision to publish this book over the objections of his client and employer, the Office of Independent Counsel, might make some question the propriety of his actions. His client has not accepted defeat, but has appealed Judge Keenan's ruling allowing the book's release. And the other "targets" of the original investigation remain open to future prosecution. It is not without precedent that attorneys representing these "targets" may seek access to the more than 2,000 pages of notes compiled by the author. Given the aggressiveness of the prosecutors to compel North and others to turn over their notebooks, perhaps this will be the final irony.

Throughout, Watergate references abound.  For Mr. Toobin, Watergate "constituted the dominant political event of my childhood." The disappointing end of the government's case may make readers wonder whether—like Don Quixote—these prosecutors were tilting at the windmills of Watergate and not at the "real crimes" of Oliver North.


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