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UNITED STATES v. NORTH

March 31, 1989

UNITED STATES OF AMERICA
v.
OLIVER L. NORTH


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE:

 Defendant served an ad testificandum subpoena upon President Ronald Reagan while the President was in office. The subpoena has remained in abeyance subject to further order of the Court pursuant to this Court's Order of January 30, 1989, entered after hearing all interested parties. Now defendant has asked the Court to require the appearance of Mr. Reagan and the matter is again before the Court following the filing of further briefs and further oral argument.

 Defendant has wholly failed to make this necessary showing.

 The prosecution has completed its case-in-chief. Many facts concerning President Reagan's knowledge of certain relevant events and his participation in particular initiatives and undertakings have already been established beyond dispute both under wide-ranging cross-examination and on direct examination.

 Every opportunity was provided defendant to present information through his counsel that would demonstrate with requisite specificity in concrete terms what further information only President Reagan could supply that would be material and essential to the defense. Defendant's ex parte, sealed filing and his further statements in briefs and argument failed to do this.

 The trial of Lt. Col. North now concerns only his alleged criminal conduct identified in discrete, specific charges. Three broad conspiracy charges directly involving presidential matters have been dismissed. While there is understandable public interest in what a President may have known or may have done, the focus of North's trial does not involve any necessity for such a generalized inquiry. There are but two aspects of Mr. Reagan's official involvement that come into focus at this stage for purposes of this criminal trial.

 One area concerns President Reagan's activities in conducting foreign and military affairs of the nation vis-a-vis Nicaragua and in regard to release of the hostages. Although these are matters that go to the heart of the presidential office where confidences and initiatives are to be assiduously protected, substantial disclosure of numerous facts and circumstances vital to a defendant's right to a fair trial have already occurred. Moreover, President Reagan's actions in seeking release of the hostages are not attacked by the indictment and any pertinent information concerning aspects of President Reagan's policy regarding Nicaragua has been well established in the record.

 During his presidency, President Reagan cooperated with Independent Counsel's investigation to an unusual extent and over a considerable period. Voluminous materials, classified and nonclassified, running into hundreds of thousands of pages of White House documents were made available. This documentation, coupled with papers from various intelligence agencies, have been culled over by the parties and the record accordingly already discloses in considerable and often intimate detail pertinent information concerning the President's activities. Other witnesses remain available to fill any aspect that may still be of interest to the defense.

 In addition, the Court has approved and Independent Counsel has admitted for purposes of the case a 44-page substitution prepared under this Court's guidance pursuant to the Classified Information Procedures Act ("CIPA") which reveals in further detail President Reagan's involvement, both personally and otherwise, in various quid pro quo or other arrangements with foreign countries involving military and/or humanitarian aid to the contras at various times. This information, filed under seal on February 17, 1989 as an attachment to the Court's Memorandum and Order Regarding Quid Pro Quo Admissions, is available for defendant's use at trial. Other materials are also available reflecting various legal opinions furnished President Reagan or his staff concerning the application of the Boland Amendments to White House activities. There has been no indication that further information available only from Mr. Reagan is necessary.

 Accordingly, the Court holds that neither defendant North nor his counsel has presented any basis which warrants the Court to exercise its discretion by enforcing the ad testificandum subpoena served on President Reagan. There has been no showing that President Reagan's appearance is necessary ...


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