In his 1990 book, Weinberger noted McFarlane's testimony regarding his July 13 briefings of Shultz and Weinberger, but dismissed it sarcastically:

His "recollection" . . . exceeds mine on this, as it did on many other points. I recall no such meeting. July 13 was the Saturday the President was operated on for abdominal cancer; and I was going over office papers in the garden at our home in McLean, Virginia, and not being briefed by McFarlane.

(Weinberger, Fighting for Peace, p. 366.) In fact, Weinberger's diary entries for July 13, 1985 -- which are part of the voluminous Weinberger note collection that the OIC first located in 1991 -- memorialize five separate conversations, apparently by telephone, with McFarlane, plus Weinberger's conversation with General Powell, regarding a conversation Powell had had with McFarlane. (Weinberger Diary, 7/13/85, ALZ 0039537H-37J.)

Although none of these diary entries record substantive information regarding hostages, Israel or Iran, that omission could reflect Weinberger's apparent decision to make no detailed notes during July and early August 1985 regarding this activity. (See, e.g., Weinberger Diary, 8/6/85, ALZ 0039585-87 (no notes of a White House meeting on Iran, which Weinberger later testified he attended on this date)). On Monday, July 15, 1985, Weinberger did make a cryptic diary entry -- "Saw Colin Powell -- re proposed Iran" -- that is consistent with McFarlane's testimony about his disclosures to Weinberger two days earlier. (Weinberger Diary, 7/15/85, ALZ 0039539.)

Weinberger Diary, 8/29/85, ALZ 0039621-22. The senior military officer said that he was not aware that he had ever been considered for a meeting with Iranians and, notwithstanding Weinberger's diary notes, he stated emphatically that he had no knowledge of any dealings with Iranians. (Senior Military Officer, FBI 302, 1/28/92, p. 3.) The senior military officer also said that he never dealt with Oliver North and never heard his name mentioned in connection with the hostage Benjamin Weir's release; he described North as "simply a staff officer on the periphery. . . ." (Ibid., pp. 2-3.)

The senior military officer's account conflicts with the contemporaneous evidence. Weinberger's diary relates that the officer embarked on a mission involving travel to Vienna, Austria -- at McFarlane's request and with the approval of Weinberger and General Vessey -- in early September 1985 "to see if Iranians will release our hostages. . . ." (Weinberger Diary, 9/6/85, ALZ 0039637; accord Ibid., 8/29/85, ALZ 0039621-22; ibid., 9/3/85, ALZ 0039627, ALZ 0039630; ibid., 9/4/85, ALZ 0039632.) North's notebook quotes Adm. Moreau, who supervised the officer in the JCS chain of command (Senior Military Officer, FBI 302, 1/28/92, p. 2), as reporting on Wednesday, August 28, 1985, that "[senior military officer]" had been "briefed Monday." (North Note, 8/28/85, AMX 001340.) On September 4, 1985, he applied for and received a ten-year passport in a false name. (Department of State Passport Application, 9/4/85, ALW 015697 (signed by "[alias]" and bearing the Senior Military Officer's photograph); accord ALW 015698 (identification page of passport).) Contemporaneous notes show that North sought a false passport for himself and a second false passport for the Senior Military Officer; that North invoked Moreau's name while making this request; that North was going to Europe with the military officer; that they would be using the aliases; and that their reservations were in the latter alias. (Quinn Note, 8/30/85, ALV 002319 ("Secure call -- Ollie North -- . . . Asked for false passport for trip to Europe -- "); Ibid., 9/4/85, ALV 002320 ("OLLIE -- One more passport -- DoD -- "); Raphel Note, 9/10/85, ALW 0045285 (North/[Senior Military Officer] -- to Europe); Platt Note, 9/10/85, ALW 0036312 ("Ollie North, [Senior Military Officer] -- Goode, [false name]"); North Note, 9/4/85, AMX 001723 ("TICKETS & HOTEL: [false name]"); see also Platt Note, 9/10/85, ALW 0036317 ("Armacost heard from Pdx [Poindexter] . . . -- That Ollie + friend going nowhere"); see generally Memorandum for the Record from Martel, "Subject: Request for Passport Retrieval," 11/25/86, ALW 015668 (passport believed issued for Senior Military Officer at the request of Ambassador Robert B. Oakley); Memorandum from Coburn to George, 10/16/87, ALW 015667; Coburn, FBI 302, 10/30/87, p. 3.)

"Point Paper: Hawk Missiles for Iran," ALZ 000353-54. A second copy of Gaffney's point paper, which is labeled "REVISED" in his handwriting but in fact contains only one less word, apparently was located in Weinberger's office complex during an April 1987 search for Iran/contra documents. On April 17, 1987, Col. James F. Lemon, the executive secretary in the Office of the Secretary of Defense, transmitted this version of Gaffney's point paper to the DoD general counsel and the assistant general counsel who were collecting Iran/contra documents, with a cover memorandum explaining that the point paper had been located during a search, conducted at the general counsel's instruction in response to document requests from the Select Committees, of "the Immediate Office of the Secretary of Defense, the Office of the Deputy Secretary of Defense, and the Office of the Executive Secretariat." (Memorandum from Lemon to Garrett and Shapiro, with attached "Point Paper: Hawk Missiles for Iran," 4/17/87, ALZ 0058446-48.)

Although the revised Gaffney point paper and Lemon's cover memorandum were responsive to Independent Counsel's 1987 omnibus requests for DoD documents, they were not made available to the OIC until 1992. There also is no record that the DoD Office of General Counsel ever provided this version of Gaffney's point paper or the information regarding its location in Weinberger's office to the Select Committees. When the Select Committees questioned Weinberger using Gaffney's file copy of the point paper, Weinberger said he did not recall seeing the document contemporaneously. (Weinberger, Select Committees Testimony, 6/17/87, pp. 22, 41.)

Armitage, Meeting Log, 12/2/85, ALZ 016436. Two days after Meron's meeting with Armitage, the Director of DSAA's Israel desk, Diana Blundell, sent an information paper on Israel's HAWK missile systems through DSAA Deputy Director Rudd to Lt. Gen. Gast, the director of DSAA. (Information Paper SUBJECT: Israel -- HAWK Missile System, circa 12/4/85, ALZ 0044276.) Blundell's paper contains detailed information on the status and schedule for improving Israel's HAWK missile batteries, the anticipated schedule for delivering modified missiles to Israel that would be compatible with the improved batteries, and the numbers of basic and improved HAWK missiles that Israel had received from the U.S. in the past. Blundell's cover note transmitting the information paper to Rudd and Gast says that they had requested a paper "on I-HAWK deliveries to Israel." (Memorandum from Blundell through Rudd to Gast, 12/4/85, ALZ 0044275.) Rudd's schedule indicates that, after he, Gast and Blundell had received a farewell "courtesy call" from Gen. Meron on December 2, 1985; Rudd, Gast, Blundell and others met the next afternoon "re: I-HAWK. . . ." (Rudd Schedule, 12/2/85, ALZ 0044110; ibid., 12/3/85, ALZ 0044110.) This meeting preceded Blundell's paper on I-HAWK deliveries to Israel.

Blundell's information paper and the related Rudd schedule documents are consistent with a response to an Israeli request during the first week of December 1985 for prompt replenishment of the 18 HAWK missiles that Israel had transferred to Iran the previous week. Armitage, one possible source of such a request, did not recall possessing knowledge in early December 1985 of Israel's HAWK shipment. Because the Blundell and Rudd documents were not produced by DoD to the OIC until 1992 (and apparently never were produced to the Select Committees), the OIC did not pursue the matter after Blundell stated in 1992 that she had no recollection whatsoever of the events that prompted her 1985 information paper. (Blundell, FBI 302, 5/29/92, pp. 4-5.)

The polygraph report concluded that no deception was indicated when Weinberger denied having intentionally misled or lied to Iran/contra investigators about his diary notes, denied having deliberately withheld his diary notes, and denied misleading investigators about his knowledge of arms transfers to Iran from August through November 1985. (Polygraph Examination Report, 5/5/92, ALZ 0046855-56.) The psychologist's report concluded that Weinberger's note-taking was so "routine, compulsive and habitual" that it was not "stored in memory for easy retrieval" and that the questioning of Weinberger "lacked sufficient specificity" to trigger a recollection of his notes. (Letter from Fishburne to Bennett, 6/1/92, pp. 3-4, ALZ 0047613-14.) Although Fishburne apparently reviewed Weinberger's congressional deposition, in which Weinberger was questioned about his note-taking (Ibid., p. 1), he did not review other evidence the Government would have used at trial to show Weinberger's consciousness of his notes.

The district court later ruled that neither the polygraph examination result nor expert testimony on memory could be admitted at trial. (Memorandum Opinion and Pretrial Order No. 15, United States v. Weinberger, Crim. No. 92-0235-TFH (D.D.C. Dec. 21, 1992).)

951 F.2d 369 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 656 (1992). The obstruction statute outlaws, among other things, "corruptly" "obstruct[ing]" or "imped[ing]" a congressional inquiry. (18 U.S.C. § 1505.) The Court of Appeals held in Poindexter that the term "corruptly" implies that a defendant must cause another knowingly to violate a legal duty and found that the term was therefore unconstitutionally vague as applied to a defendant charged with lying to Congress himself rather than causing another to do so. (951 F.2d at 379, 385-86.)

The OIC had argued that Poindexter did not preclude the obstruction charge against Weinberger because the indictment alleged that Weinberger had obstructed Congress not merely by lying but also by withholding and concealing his relevant notes. The Poindexter decision left open the possibility that concealing or destroying documents could be considered analogous to causing a witness to lie or withhold testimony and therefore would satisfy the court's interpretation of the term "corruptly." (Ibid. at 384, citing United States v. Walasek, 527 F.2d 676, 679 & n.11 (3d Cir. 1975); cf. United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981), cert. denied, 454 U.S. 1157 (1982)).

Memorandum Opinion and Pretrial Order No. 12, United States v. Weinberger, Crim. No. 92-0235-TFH (D.D.C. Dec. 11, 1992). Although the charged statement was beyond the five-year statute of limitations, 18 U.S.C. § 3288 provides that when a count is dismissed for "any reason" after the statute of limitations has run, the prosecution may bring a new indictment based upon the same facts within six months of the dismissal. To be proper under section 3288, the new indictment must be based on "essentially the same facts as those alleged in the old indictment" so that the defendant is on notice, within the statute of limitations, of the basis for the new charges. (Pretrial Order No. 12, at 4 quoting United States v. George, 1992 U.S. Dist. LEXIS 9618 (D.D.C. July 8, 1992).)

The District Court acknowledged that, under this standard, Weinberger "clearly had notice of the factual basis for the charges" in the new indictment. (Ibid.) The court expressed "concern" that the specific statements alleged to be false had not been underlined in the first indictment but did not find this point dispositive. (Ibid., pp. 4, 6.) Rather, the court went on to hold that even though the new indictment was premised on the same facts as the first indictment, it impermissibly broadened the original charges because the obstruction statute, as construed in Poindexter, does not include false statements. (Ibid., pp. 5-6.)

Smith, Affidavit, 4/29/92, ¶ 5, ALZ 0045122; Leisz, Grand Jury, 3/6/92, p. 35; Duncan, Grand Jury, 3/6/92, pp. 25-26; Taft, FBI 302, 4/8/92, p. 2; accord Weinberger, Fighting for Peace, p. 17 (expressing hope to write later book covering on a "day-to-day basis" his seven years as secretary of defense).

Weinberger's 1981 diary notes contain repeated references to discussions with the British scholar and biographer Janet Morgan regarding his "biography + diaries." (Weinberger Diary, 3/16/81, ALZ 0060966; ibid., 3/17/81, ALZ 0060969; ibid., 3/27/81, ALZ 0060995; ibid., 3/30/81, ALZ 0061001; ibid., 4/4/81, ALZ 0061022; ibid., 4/9/81, ALZ 0061033; ibid., 10/24/81, ALZ 0061542.) Pentagon spokesperson Henry E. Catto, Jr. publicly identified Morgan in February 1982 as a prospective biographer of Weinberger. (DoD News Briefing, 2/2/82, pp. 1-2, ALZ 0070079-80.) Morgan denied in October 1992 that she had ever seen Weinberger's diary notes or discussed the notes with him as a possible basis for a biography or autobiography. (Morgan, FBI 302, 10/12/92, pp. 11-13; Morgan FBI 302, 10/14/92, pp. 2, 8. )

Memorandum from Belnick to the File, 5/1/87, AMY 000361 (emphasis added). The House Select Committee continued separately to pursue Weinberger's notes and diaries. On May 22, 1987, Joseph H. Saba, staff counsel to the House Select Committee, wrote to Garrett, noting that the House Committee had received few documents from Weinberger and asking for Weinberger's "diaries, appointment books, records of meetings, and handwritten notes. . . ." The letter further advised that the request "is inclusive of [Weinberger's] personal diary entries made from October 1984 through 1987, pertaining to the Boland Amendment, Iran, Nicaragua, and the Contras." (Letter from Saba to Garrett, 5/22/87, ALZ 0054598-600.)

On June 10, 1987, Saba wrote again to Shapiro, reiterating the House Committee's request for access to Weinberger's calendars and diaries, "and all other schedule-type records of the occurrence of meetings, events, and telephone conversations for the period July 1, 1985, through December 31, 1986." (Letter from Saba to Shapiro, 6/10/87, ALZ 0058754.) According to Weinberger's own diary notes, Gen. Fornell consulted him on June 15, 1987, two days before Weinberger's deposition, about "data on my calendar to be turned over to Jt. Iran Committee[.]" (Weinberger Diary, 6/15/87, ALZ 0042472.) The next day, Weinberger's official calendars and activity logs, but none of his diary or meeting notes, were produced to the House Select Committee. (Letter from Shapiro to Saxon, 6/18/87, ALZ 0055135-36 (enclosing documents produced to House Select Committee on 6/16/87 and memorandum describing documents)).

Weinberger, Select Committees Deposition, 6/17/87, pp. 79-80. Ironically, given Weinberger's subsequent contention that he did not understand his "jottings" to be within the scope of congressional requests for "notes," (Weinberger, CNN Interview, 12/28/92, NEXIS Transcript p. 6), the following exchange occurred during Weinberger's congressional deposition:

Q: Do you ever take notes that are not dictated or make jottings when you get back [from meetings]?

A: Yes, occasionally, but comparatively rarely. I don't know that we kept those in any formal way. I don't think they have been filed or labeled. . . .

Q: If there is any chance there are ----

A: I think we made this examination and whatever there is is in our so-called C&D, correspondence and directives. They have been asked to paw through everything.

Weinberger, Select Committees Deposition, 6/17/87, pp. 79-80. (emphasis added).) As discussed further below, the Government would have shown at trial that Weinberger was well aware that hundreds of pages of his diary notes and scores of pages of his meeting notes were stored in his desk and office bedroom and were not in the C&D files.

The following evidence indicates that Weinberger maintained the set A notes himself, separately from his secretaries' handwritten notes file: (1) none of the notes is stamped "SecDef Has Seen," indicating that they were never placed in his out box; (2) according to the Library of Congress archivist, these notes were bundled together under handwritten cover notes by Weinberger (ALZ 0040718-19) identifying them as miscellaneous notes of Cabinet and NSC meetings (Teichroew, OIC Deposition, 4/21/92, p. 37); and (3) the notes were not labeled or dated by anyone other than Weinberger. (Compare description of set B notes below.) Like the diary notes, the set A meeting notes are all originals and have no classification markings, even though they contain classified information.

The set A notes contain Weinberger's notes of the most significant Iran/contra meetings, including the December 10, 1985, White House meeting at which arms sales to Iran were discussed, the January 6 and 7, 1986, meetings on the Iran arms sales, a February 11, 1986, "Family Group" lunch meeting at which a schedule of arms transfers and hostage releases was outlined and the November 24, 1986, NSPG meeting regarding the Administration's response to public disclosure of the arms sales.

For example, as the Iran/contra scandal was breaking publicly, Weinberger's diary contains these notes regarding his private meeting with Prince Bandar on Sunday, November 23, 1986:

Prince Bandar in office -- Nancy Reagan --
in a 1 1/2 hr. talk Friday with him -- he invited President to dinner at his Embassy -- sd [said] she thinks Shultz should go -- that he has been disloyal to the President -- he sd he recommended to her that I be named Secretary of State; that I could negotiate an agreement with Soviets because no one could say I was soft on them -- She feels that very few are being loyal to President + that Shultz should not have gone to Canada Friday + should support President -- She would like Baker to go in as Secretary of Defense!

(Ibid., 11/23/86, ALZ 0040556.)

Press Release from Bandar, 10/21/86, ALW 0063258. In 1987, Prince Bandar refused Independent Counsel's request for a personal interview and declined to provide answers to Independent Counsel's interrogatories regarding financial support for the contras. (Letter from Bandar to Shultz, 5/1/87, ALW 0063255-57.) In his letter to Secretary of State Shultz communicating this refusal to cooperate, Prince Bandar said that Saudi Arabia's "confidences and commitments, like our friendship, are given for not just the moment but the long run." (Ibid.) Prince Bandar also attached a copy of his October 21, 1986, public statement regarding the contras and asserted that "it would not be appropriate or constructive in a diplomatic or other sense to elaborate further on that clear position." (Ibid.) To Independent Counsel's knowledge, no official representative of the Saudi Kingdom ever admitted publicly that it provided money to the contras during 1984 and 1985.

Weinberger Diary, 2/11/87, ALZ 0042173. Less than three weeks after this meeting with Vessey and their discussion of the information they had received in 1985 regarding Saudi assistance to the contras, Weinberger made a curious diary entry:

Jack Vessey -- re reference to Tower Report to Saudis helping contras -- neither of us know anything about that

(Ibid., 2/27/87, ALZ 0042210.) Weinberger's note appears to refer to McFarlane's written statement, which is quoted in the Tower Commission Report issued the previous day, that he "was separately informed by the Secretary of Defense and General Vessey that the total amount of the contribution [by a "foreign official" (Prince Bandar) to the contras] during 1985 was 25 million." (Report of the President's Special Review Board, 2/26/87, p. C-5.)

When Vessey was confronted with Weinberger's note in 1992, he said that he had no idea what it referred to and denied that he and Weinberger ever agreed to cover up their knowledge of the Saudi contribution. (Vessey, FBI 302, 6/11/92, p. 9.) Vessey also pointed out that he would not have told Weinberger on February 27, 1987, that he (Vessey) had no knowledge of the Saudi contribution because he had told the FBI, and then Weinberger, exactly the opposite only a few weeks earlier. (Ibid.)

Ibid. Powell later explained, after reviewing this note by Weinberger, that

[t]his is Mr. Weinberger's way of expressing his frustration in dealing with Mr. McFarlane. Mr. McFarlane had a habit of concluding conversations with the statement, "Thanks for the call." It was also a way of dismissing any concerns that might have been expressed in the call.

So whereas Mr. Weinberger was calling back to Mr. McFarlane to tell him this is illegal, it's a bad idea, you shouldn't be doing this, he was getting back from Mr. McFarlane something along the lines, "Thanks for the call," rather than "I agree" or "I don't agree." It was just "Thanks for the call."

So Mr. Weinberger is expressing his anxiety and frustration here that he has given information that should kill this idea right in its crib and instead of getting agreement, he's getting once again a "Thanks for the call" answer.

I am confident that this way of entering it in his personal notes was a way of expressing his annoyance and frustration that he did not succeed in killing this or he didn't know if he succeeded in killing this.

(Powell, Grand Jury, 4/22/92, p. 62.)

For example, during his December 17, 1986, testimony in closed session before the Senate Select Committee on Intelligence, Weinberger gave the following answer to a question from Senator Cohen:

Q: So to the best of your recollection there was no discussion about the Israelis transferring arms and us possibly resupplying them?

A: Not in my presence; no. I heard about that only much later after these things started to come out and as I say I heard -- only heard that statements were being made, not that that had actually happened.

(Weinberger, SSCI Testimony, 12/17/86, p. 58.) This answer was not the subject of prosecution because the statute of limitations had run before the OIC obtained Weinberger's notes.

Armitage Telephone Log, 12/3/85, ALZ 015337 (Armitage called and spoke to Raphel at 2:05 p.m.). Raphel's handwritten notes contain the following:

-- Ollie
-- Scapegoat if it goes wrong
-- Iranians are sleazeballs
-- Ollie -- we've lost little
-- Bud should get them all together + brief --

(Raphel Note, 12/3/85, ALW 0062382.) Ralphel's 1987 typed narration of his notes identified Armitage as the source of Raphel's information:

December 3 -- Assistant Secretary Armitage told me that Col. North had said that he would be made the scapegoat if the operation goes wrong, but that we have lost little by trying. Reportedly, Col. North added that the Iranians involved are disreputable. Mr. Armitage said he suggested to Col. North that Mr. McFarlane should get all the principals together to brief on the operation.

(Raphel Chronology, 1987, p. 2, ALW 0056727.)

E.g. Platt Note, 12/5/85, ALW 0036859 ("Message from North to Iran via Israelis[:] Our arms deliveries predicated on following: 1. no more terrorism[;] 2. moderate gov[;] 3. Iran must not lose the war w Iraq.[;] 4. Release of hostages."); Ross Note, 12/5/85, ALW 0047062 (noting Raphel's report on "ON [Oliver North] message to Iran;" same four points as Platt note); Hill Note, 12/6/85, ANS 0001236 ("how they will argue [ -- ] NP [Platt]: Ollie [North]: we shd [should] go ahead for long term stratg [strategic] int. [interest] w Iran + if we reneg [sic], there will be 4 dead hostg [hostages] + we may have to mount rescue"); Platt Note, 12/6/85, ALW 0036863 ("Arms for Hostages -- Israel has been trading arms for Jews for years. Ship arms. Get 40 Iranian Jews. . . . Meron runs it[.] This specific deal -- Israeli sends Hawks -- Phoenix -- replaced by 3300 I TOWs. Ollie has done memo to Pres [President Reagan] for 10 o clock. -- should go ahead because of longer term strategic benefit -- if we renege will have 4 dead hostages in 10 days -- will have to move"); Hill Note, 12/6/85, ANS 0001238 ("Arma [Armacost] -- Ollie told Iranians that as part of Night Owl deal -- They shd give up t'ism [terrorism] [;] -- install moderate govt[;] -- win war w IQ [Iraq]} (!) ha ha Ollie is laughable.").

North's paper apparently was the basis of a detailed briefing that Poindexter gave Shultz over secure telephone the afternoon of December 5, 1985. (Hill Note, 12/5/85, ANS 0001228-29 ("3300 TOW. 60 Hawks Emph [Emphasis] is on rel [relations] w post-Kh. [Khomeini] Iran more than on hostages. . . .").) Independent Counsel was not able to determine whether a copy was provided to President Reagan, as Platt's note reports.

The latter admissions were consistent with the apparent defense strategy to emphasize that Weinberger had made no effort to hide his notes from those around him.

Leisz also testified that when she and Weinberger went to the Library in December 1991 to review the notes the OIC had found there, both she and Weinberger were surprised to find that his diary and meeting notes were at the Library. (Leisz, Grand Jury, 3/6/92, pp. 31, 34-35.) Leisz said Weinberger had remarked about his diary notes, "these are my telephone logs; I didn't know where they were." (Ibid., p. 35.)

Weinberger's comments are odd given that he and Duncan had looked at the diary notes in the Library in July 1988 and that Weinberger had packed his diary notes and at least some of his meeting notes himself for transfer to the Library. Weinberger's attorneys, who claimed that Weinberger was well aware his diary notes were at the Library when he gave the OIC permission to review his papers there, tried to minimize this episode in a pre-indictment meeting with the OIC, explaining that Weinberger was simply suprised at the way his notes had been neatly archived in individual plastic sleeves.