On Iran-contra, what did Roberts know?
Memos reveal his objections to any Reagan White House role in contra-funding plans.
What did you know, and when did you know it?
That query, dating from the Watergate probe, is perhaps the best known question ever asked during a congressional hearing (at least since the McCarthy era). But the kind of scandal that prompts such a bare-knuckled interrogation does not appear on John Roberts's golden résumé.
The US Supreme Court nominee, now appearing before the Senate Judiciary Committee, is being questioned about his conservative leanings, his past writings, and his courtroom advocacy of far-right constitutional interpretations. But no one is attacking the prospective chief justice's honesty, integrity, or ethics.
Nonetheless, at least one episode in Judge Roberts's past may prompt that famous line of interrogation. As a member of the White House counsel's office in 1985 and early 1986, Roberts was in close proximity to what ultimately became the Reagan administration's Iran-contra scandal.
As early as January 1985, Roberts was asked to give a legal opinion about White House involvement in private fundraising to help the contra forces fighting Nicaragua's Sandinista government. He also wrote several memos in early 1986 concerning the private fundraising activities of individuals who were later prosecuted in the Iran-contra affair.
But Roberts's White House memos, made public at the National Archives, are unlikely to provide much grist for conspiracy theorists seeking to link the former Reagan staffer to the scandal.
Instead, Roberts's memos on contra-related issues reveal a cautious lawyer who consistently sounded alarm bells about appearances and who urged compliance with the letter and spirit of the law. His words convey no sign of a devious consigliere searching for ways to bend the law or conceal lawless activities.
More important, the memos suggest that Roberts and his colleagues in the White House counsel's office were outside the loop on the secret dealings of Lt. Col. Oliver North at the National Security Council. There is no indication that the office was consulted about the legality of trading arms for hostages in Lebanon, or using proceeds from the Iran arms sales to support the contras at a time when Congress had barred US government assistance to them.
One odd circumstance, though, might raise a question about how much Roberts knew about Iran-contra and when he knew it.
Roberts left the Reagan White House in May 1986 - six months before public disclosure of the Iran-contra scandal threw the Reagan presidency into turmoil.
Roberts's departure alone isn't unusual. Ambitious and talented lawyers circulate in and out of government service on a regular basis. What is unusual is that between January and June 1986 the entire counsel's office departed. All seven lawyers - including presidential counsel Fred Fielding - resigned and left the White House.
The departures mark an extraordinary exodus of legal experience even as the Iran-contra deception was in full operation.
Peter Wallison, who succeeded Mr. Fielding as White House counsel in April 1986, says the departures were routine turnover within the office, nothing more. "They would have to be very, very perspicacious ... to have sensed something that was such a tightly held secret," he says. "Nobody had the slightest inkling [the Iran-contra operation] was occurring, and if they had, it would have been stopped."
Richard Hauser, deputy White House counsel until early 1986, also says there was no connection between the departures and Iran-contra. "It may have just been because Fred [Fielding] and I were leaving that that became a natural time for others to make plans," he says.
The Roberts legal memos dealing with Iran-contra issues were the type of routine matters that came through the White House counsel's office every day, he says.
"The only thing remarkable about it," Mr. Hauser says, "is that there was a pyrotechnic aspect to it that was unknown at the time."
In January 1985 Roberts was asked to assess the legality of the president and the White House becoming involved in fundraising on behalf of a newly formed private group called the Nicaraguan Refugee Fund. A plan being pushed by Colonel North and others at the National Security Council called for the White House to give corporate leaders a briefing on the situation in Nicaragua and then the group's representatives would ask the CEOs to give money to the fund. The money would be used for humanitarian aid and to wage a publicity campaign in the US against the Sandinista regime.
Roberts objected. In a Jan. 11, 1985, memo, he wrote: "I recommend stopping any White House involvement in this effort." The White House generally does not lend its name to private fundraising, he wrote. "The corporate CEOs would doubtless view the solicitation from the 'private' organization as having official backing if they learn about it at a White House briefing," the memo said.
But that wasn't the last word. After a week of internal appeals, Roberts reversed his position. Supporters of the effort argued that White House fundraising policy would not be violated, because solicitations would occur after the briefing at a reception at the Hay-Adams Hotel, a block from the White House.
"I suppose we could permit the briefing to take place," Roberts wrote on Jan. 18, 1985. "But I think [this] 'Chinese wall' argument is a bit artificial."
The "Chinese wall" concession is important because it established the briefing-solicitation process that North later used to raise funds from private individuals to pay for contra weapons. Those soliciting the funds on North's behalf later pled guilty to violating US tax laws for claiming the donations were tax-free.
In early 1986, Roberts wrote a series of memos on private fundraising. The plan was as in 1985: provide a White House briefing for wealthy administration supporters, then take them to the Hay-Adams and ask for money.
"I see no legal bars to the contemplated briefing," Roberts wrote in January 1986.
Roberts's memos suggest he was unaware that the money was being used by North and others in the administration to arm the contras. White House officials were told the money was for a "public awareness" campaign in the US by a private group that supported Reagan's position on Central America.
The White House briefings and Reagan's drop-bys were used to boost the private fundraising effort. Those preparing Reagan's fundraising pitches to would-be donors often went too far, in Roberts's view.
One proposed draft of Reagan remarks said: "I ask you - and I ask private citizens throughout the country - to give private donations to the freedom fighter cause. Help them survive this Soviet-Cuban-supplied onslaught. Help these brave freedom fighters last out until American aid can reach them."
After reviewing the draft, Roberts fired off a memo. "The final paragraph on page 3 raises serious concerns under the Neutrality Act," he wrote March 20, 1986. Private citizens who contribute money to buy arms for use against a country with which the US is not at war would be violating federal law and be subject to a fine and prison term, he said.
"The president cannot encourage private citizens to engage in such activity," Roberts wrote. "The reference to private donations must either be deleted or revised to make clear that only donations for humanitarian aid (not covered by the Neutrality Act) are encouraged."
The comments were toned down, but, apparently unknown to Roberts, the donations secretly continued to flow to the contras for weapons.