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Security Not Part of Reagan Diary Ruling

February 09, 1990|NORMAN KEMPSTER | TIMES STAFF WRITER

WASHINGTON — A federal judge said Thursday that he will consider former President Ronald Reagan's privacy but will ignore issues of diplomacy and national security in deciding whether to require Reagan to turn over excerpts from his White House diaries to Iran-Contra defendant John M. Poindexter.

In a five-page opinion, U.S. District Judge Harold H. Greene said it would be up to the nation's current President to assert executive privilege relating to national security, foreign affairs or other matters affecting the office of the presidency.

So far, Bush has not claimed executive privilege in the case. However, the Justice Department, in a brief filed Wednesday, made clear that the President would do so if he believed that the Reagan diaries would affect national security.

Greene has made it clear that he will require Bush and Reagan to make a clear and unambiguous claim of executive privilege if they want to take advantage of constitutional guarantees of confidentiality of presidential communications.

Reagan's lawyers had hoped to avoid the term "executive privilege," which former President Richard M. Nixon invoked during the Watergate scandal. However, Reagan invoked the doctrine Wednesday after Greene had told him bluntly to do so or surrender the diaries at once. Bush has been similarly reluctant to claim executive privilege.

Greene has said that he will apply a higher standard of relevance in deciding whether to turn over to Poindexter parts of the diaries covered by executive privilege. But he has also emphasized that he may decide to give Poindexter the papers if he determines that the defendant's right to a fair trial outweighs presidential confidentiality.

"It has been authoritatively held that an assertion of executive privilege by a former President is entitled to less weight than such an assertion by an incumbent President," Greene said. Thus, he reasoned, if a current President decides not to invoke executive privilege regarding a former President's papers, that decision "would affect the balancing of interests a court must conduct."

Greene ordered Poindexter's lawyers to turn over to Reagan and the Justice Department memos indicating how Poindexter hopes to use the diaries to bolster his defense. The former White House national security adviser faces five felony charges resulting from the Reagan Administration's secret arms sales to Iran and the diversion of some of the profits to the Contras in Nicaragua. Poindexter apparently intends to show that he was acting with Reagan's approval, although the former President has denied involvement in the Iran-Contra scheme.

In his decision Thursday, Greene said he had previously denied Reagan and the department access to the memos because "in view of the presumption of innocence, a criminal defendant is not required, absent special countervailing circumstances, to reveal his defenses and the theories underlying them in advance of his presentation of evidence at the trial . . . . (But) the protection of the prerogatives of the presidency presents such a special and countervailing circumstance."

In the brief filed Wednesday, the Justice Department said it would study Poindexter's memo carefully before deciding if it would file a claim of executive privilege on Bush's behalf.

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