What the Iran-Contra Investigation Can Teach Us About the Russia Probe
I served on the staff of the 1987 Senate Committee Investigating the Iran-Contra Affair. In recent days, the sense of deja vu has become almost overwhelming.
Lessons from that committee might constructively address Congress's need to find a credible way to investigate Russian interference in U.S. elections. As deeply serious as that interference is, if individuals close to the president cooperated and colluded with that Russian covert activity, laws were likely violated.
This means the proper balance must be struck between the public’s right to know on the one hand, and potential criminal prosecutions on the other. In such investigations these objectives can interfere with each other.
Like the frustrating present polarization, there was an initial partisan struggle at the end of 1986 between outgoing Majority Leader Bob Dole (R-Kan.) and incoming Majority Leader Robert Byrd (D-W.Va.). Dole wanted a short, narrow investigation, which he argued could be completed in a matter of weeks. And in an echo of current events, Republicans pushed to have a Senate Intelligence Committee investigation report made public.
President Reagan also wanted it released. Democrats resisted, pointing out that administration agencies being investigated had been given the opportunity to edit the final report. Reagan's communications director, Patrick Buchanan, insisted that, "Democrats tell us this investigation must be dragged out to get at the truth. ... They're not after the truth, they're after Ronald Reagan."
The Intelligence Committee voted not to issue the report. Sen. Bill Cohen (R-Maine) joined with the six Democrats to reject publication.
It became increasing evident that a dark cloud was hovering over Reagan and his White House. With Democrats in charge of the Senate, they began moving toward the creation of a select investigating committee. Dole then realized that the wisest course, in the best interest of the White House and congressional Republicans, was to get the facts out through a tough bipartisan investigation with the resources to follow the facts wherever they might lead.
In a joint press conference with Byrd, Dole explained, "I would say as a Republican, it's probably even more important to us than maybe those on the Democratic side because it does involve this administration."
Many observers have forgotten the bipartisanship of that investigation. Chairman Daniel Inouye (D-Hawaii) immediately named the ranking Republican, Sen. Warren Rudman (R-N.H.), as vice chairman. There were no separate majority and minority staffs. Staff worked seamlessly together.
Reagan, for his part, voluntarily produced requested documents to the committee. No subpoenas were necessary.
In the end, the Senate select committee issued a bipartisan majority report signed by all of the Democratic senators and a majority of the Republican senators.
That report said of Reagan, "The president cooperated with the investigation, he did not assert executive privilege, he instructed all relevant agencies to produce their documents and witnesses; and he made extracts available of his personal diaries."
Nonetheless, the committee was tough on the president's responsibility for the Iran-Contra affair. The bipartisan Committee majority wrote:
"[T]he ultimate responsibility for the events in the Iran-Contra affair must rest with the President. If the President did not know what his national security advisers were doing, he should have. It is his responsibility to communicate unambiguously to his subordinates that they must keep him advised of important actions they take for the Administration. The Constitution requires the President to 'take care that the laws be faithfully executed.' This charge encompasses a responsibility to leave the members of his Administration in no doubt that the rule of law governs."
The recent news that President Trump's former national security adviser, Michael Flynn, is seeking immunity brings to mind the internal debate and the difficult decision to grant immunity to Lt. Col. Oliver North of the Reagan National Security Council staff, a central figure in the Iran-Contra affair. North's testimony was absolutely critical to the committee's efforts to piece together the truth. Flynn may now be proffering such information to the House and Senate Intelligence Committees.
The lessons of Iran-Contra should weigh heavy on those making the decision on Flynn's immunity. The decision to grant immunity to North was, in the end, based on the public's right to know and the need to remove the cloud of suspicion over Reagan or to tell the whole truth.
Later, in May 1989, Oliver North was found guilty of three felony counts, including aiding and abetting the obstruction of the congressional investigation. However, a year later, the verdict was overturned based on the 1972 Supreme Court decision in Kastigar v. U.S. That decision requires prosecutors to prove that immunized testimony is not being using to convict the defendant.
Although the North prosecutors had gone to great lengths to wall themselves off from the nationally televised hearings and the newspaper reports, the court was not satisfied.
This illustrates the delicate balance between Congress's need to get to the truth and the fact that that need may be in direct conflict with the desire to see that the rule of law is obeyed and criminal behavior is punished.
These lessons and others drawn from the Iran-Contra Committee should inform the current Congress. The creation of a bipartisan select committee with a deep commitment to getting to the truth is necessary. Such a committee could have membership for members from the Intelligence, Armed Services, Foreign Relations, Judiciary and Homeland Security Committees, for example, all of which have related jurisdiction.
Trump should see, as Reagan did, that cooperating with a bipartisan thorough investigation is the best route to clearing up the mess.
The bottom line is that however the cloud above the Trump White House is resolved, a majority of the American people must have confidence that justice was done.
Richard A. Arenberg worked for Sens. Paul Tsongas (D-Mass.), Carl Levin(D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years and is co-author of the award-winning "Defending the Filibuster: The Soul of the Senate" (Indiana University Press, 2012). He is a visiting lecturer of political science, and international and public affairs, at Brown University. His work has appeared in The New York Times, The Washington Post and The Boston Globe. Follow him on Twitter @richarenberg.