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“Above the Written Law”: Iran-Contra and the Mirage of the Rule of Law
Published online by Cambridge University Press: 21 May 2024
Abstract
Why have scandalous sprees of lawbreaking by U.S. government officials proven so seductive yet so difficult to prosecute? This article takes the Iran-Contra scandal of the Reagan–Bush era as an instructive case study and red flag in the attitudinal erosion of the belief in the rule of law among American conservatives. Before the scandal broke, officials and legal counsels willfully mis-interpreted a clear prohibition to fund counter-revolutionaries and fabricated a post-facto presidential permission in order to sell weapons to Iran without congressional oversight. Congress's assumption that government officials would obey its statutes resulted in neither wrongdoing being punishable by criminal sanctions. Conservatives therefore argued that ends justified neglecting certain laws while also denying they had broken any laws. Prosecutors found themselves compelled to prosecute Iran-Contra's defendants over more prosaic crimes such as lying and stealing rather than more abstract and damaging ones. President George H. W. Bush's pardon of Iran-Contra defendants contributed to an impunity that further eroded the American rule of law to this day.
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- Copyright © The Author(s), 2024. Published by Cambridge University Press on behalf of American Society for Legal History
References
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26 EO 12333 §1.2(a).
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32 Cited in Walter Pincus and Joe Pichirallo, “Memo on Honduran Deal Cites Bush,” Washington Post, April 12, 1989, A1.
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36 Testimony of Regan and Weinberger, 7, 78.
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38 Cited in Peter Baker and Susan Glasser, The Man Who Ran Washington: The Life and Times of James A. Baker III (New York: Doubleday, 2020), 229.
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41 Stanley Sporkin, CIA, memo, June 26, 1984, DNSA Collection: Iran-Contra Affair.
42 “H.R. 5399—Section 107, Prohibition on Covert Assistance for Military Operations in Nicaragua,” to Stanley Sporkin, CIA, memo, August 23, 1984, DNSA Collection: Iran-Contra Affair.
43 Cited in Byrne, Iran-Contra: Reagan's Scandal, 83.
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54 50 U.S.C. §413.
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73 Pub. L. No. 96–450, Sec. 407 (October 14, 1980).
74 18 U.S.C. §960.
75 31 U.S.C. §1341.
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78 18 U.S.C. §1001.
79 18 U.S.C. §1505.
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97 Testimony of Oliver L. North, 278.
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99 Testimony of Elliott Abrams, 557.
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105 Jo Ann Farrington to Gerald McDowell, Department of Justice, memo, November 22, 1986, DNSA Collection: Iran-Contra Affair.
106 Reagan, The Reagan Diaries, 453.
107 Reagan, The Reagan Diaries, 453.
108 Crovitz, “Crime, Constitution,” 23.
109 Cited in Jeffrey Toobin, Opening Arguments (New York: Viking, 1991), 35.
110 50 U.S.C.A. §§401–432 (Supp. 1987).
111 See also Testimony of Glenn A. Robinette, 214.
112 Aaron Epstein, “Criminal Case Likely, Perilous,” Miami Herald, July 17, 1987, 1A.
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114 Arthur L. Liman with Peter Israel, Lawyer: A Life of Counsel and Controversy (New York: Public Affairs, 1998), 349, 350.
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117 David Johnston, “Bush Pardons 6 in Iran Affair, Aborting a Weinberger Trial; Prosecutor Assails ‘Cover-Up,’” New York Times, December 25, 1992, A1.
118 “Independent Counsel's Statement on the Pardons,” New York Times, December 25, 1992, A22.
119 Crovitz, “Crime, Constitution,” 26.
120 Koh, The National Security Constitution, 21.
121 Taylor, interview by Kennedy, Association for Diplomatic Studies and Training.
122 See the National Security Decision Directive 276 at https://irp.fas.org/offdocs/nsdd/nsdd-276.htm.
123 Draft of memo?, Shultz to Reagan, July 28, 1987, folder Speeches and writings 1987 Geo. Shultz to Ronald Reagan on Iran/Contra, box 35, Charles Hill Papers, Hoover Institution, Stanford University, Stanford, CA.
124 Koh, The National Security Constitution, 21.
125 Cited in James T. Currie, “Iran-Contra and Congressional Oversight of the CIA,” International Journal of Intelligence and Counter-Intelligence 11, no. 2 (1998): 199–200, 202, citation on 203.
126 Robert Busby, Reagan and the Iran-Contra Affair: The Politics of Presidential Recovery (London: Macmillan Press, 1999), 17.
127 Scott Spencer, “Walsh's Last Battle,” New York Times Magazine, July 4, 1993, 11, 28–30, 33, 30.
128 Carl Bernstein, “Conspiracy Without End: The Legacy of Watergate,” Los Angeles Times, January 10, 1993.
129 Sidney Blumenthal, “The Conservative Crackup,” Foreign Policy 69 (Winter 1987–1988): 166.
130 For example, Byrne, Iran-Contra: Reagan's Scandal, 337.
131 Cited in Christopher H. Pyle, “The Law: Barack Obama and Civil Liberties,” Presidential Studies Quarterly 42, no. 4 (December 2012): 868, 876.
132 James P. Pfiffner, “The Constitutional Legacy of George W. Bush,” Presidential Studies Quarterly 45, no. 4 (December 2015): 727–41.
133 Pub. L. 76–252.
134 Michael Gerson, “Public Integrity? Blah, Blah, Blah,” Washington Post, November 8, 2019, A21.
135 David Frum, “Last Exit from Autocracy,” The Atlantic, October 14, 2020, https://medium.com/the-atlantic/last-exit-from-autocracy-664a5b437f79.
136 James P. Pfiffner, “Donald Trump and the Norms of the Presidency,” Presidential Studies Quarterly 51, no. 1 (March 2021): 110.
137 Rebecca Solnit, “President Trump is at War with the Rule of Law. This Won't End Well,” The Guardian, October 9, 2019.