The Iran-contra hearings and the advice of counsel

ONE of several unusual features of the Iran-contra hearings has been the latitude allowed to counsel for witnesses before the committees. At times it seemed as if Brendan Sullivan, Lt. Col. Oliver North's lawyer, were pressing to seize the management of his client's testimony from committee counsel. The willingness of Senate chairman Daniel Inouye to tolerate this behavior was quite surprising. When a witness brings his lawyer into the committee room, the traditional role of the lawyer is only to whisper advice to his principal, not to challenge the committee. Perhaps the chairman was leaning over backward.

I remember an occasion, some 30 years ago, when a House committee, under the redoubtable chairmanship of Francis Walter, was questioning John Cogley, who had done a study of Hollywood blacklisting under the aegis of the Fund for the Republic. Bethuel Webster, a leader of the New York Bar who served as counsel to the fund, rose to challenge a question from the committee. He was summarily silenced by the chairman, and when he tried to rise again only my tug at his coat sleeve kept him, I believe, from a contempt citation.

Mr. Webster was accustomed to practice in the courts and had not, as I recall, had the experience of representing a witness before a hostile congressional committee.

It might be argued that unleashing a witness's lawyer serves to even the odds in what might otherwise be an unfair contest, but the argument is not convincing.

A congressional hearing is not a criminal proceeding, as committee members had to remind us more than once. Testimony by Colonel North or Rear Adm. John Poindexter cannot be used against them in any criminal case brought by the special prosecutor (or indeed by any prosecutor), since they both insisted - as they had a right to do - on a grant of immunity before testifying.

A criminal trial, under our system, is an adversary process, constructed on the theory that it is the best way to bring out the truth. In European legal systems, a criminal case is handled as an investigation, not a contest.

Our congressional hearings are designed to be investigations, not contests. They have been misused, noticeably by the late Sen. Joseph McCarthy, to pillory witnesses, and even to accuse them publicly of crimes for which they might never be tried, attaching a stigma that could not be shaken off through a judicial proceeding.

What brought Webster to his feet was an outrageous browbeating of Mr. Cogley, in a fashion that would almost certainly have been ruled out of order by a trial judge. But a committee chairman is not a trial judge.

The answer to abuse of the investigative process is not to try to turn it into something it was never meant to be. Allowing counsel for the witness to behave like Perry Mason only encourages committee counsel to behave like Mr. District Attorney. In fact, one of Mr. Sullivan's objectives was clearly to drive a wedge between the committee and its counsel.

I would take the argument one step further. The essential work a lawyer does with a client who will be testifying before any investigative committee must be done in advance of the hearing. The lawyer can and should help the client to understand how the investigators will be coming at the issues, to refresh dim or fuzzy recollections, and to state positions concisely.

It was evident that Colonel North had had a good deal of that kind of help, and that Admiral Poindexter might have benefited from more of it. What neither one needed was the spectacle of his lawyer trying to tell committee counsel how to run the hearing. They both might have contributed more to public understanding of the Iran-contra affair if they had spent less time listening to their lawyers whispering in their ears at the witness table and more time paying attention to the import of the questions being put to them.

Adam Yarmolinsky, provost of the University of Maryland Baltimore County, served in the Kennedy, Johnson, and Carter administrations, and at the White House, the Pentagon, and elsewhere.

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