Under Fire: An American Story.

AMONG THE many benefits of having a young niece around during the holidays is that it gives one an excuse to watch old favorites like How the Grinch Stole Christmas. This is the fellow, you might recall, who tries to stop Christmas from coming by stealing all the presents from Whoville while Boris Karloff sings "You're a Mean One, Mr. Grinch" in an appropriately sinister tone. Being not quite four years old, Emily has a hard time imagining a character more villainous than the Grinch. And of course her child's sense of justice is assuaged by his lack of success and ultimate conversion to good.

Someday when Emily is old enough, her uncle tell her the truth. Grinches we have in abundance, but the problem with a real Grinch is not so much a heart three times too small but a legal staff, prosecutorial scope, and claim on the public purse many times too large. Here, inside the Beltway, Grinches bear an uncanny resemblance to Special Prosecutor Lawrence Walsh. Over the past five years he had indicated and intimidated a score of former Reagan officials on the basis of "crimes" no other prosecutor would ever have recognized. In the end it was to little avail. Robert Gates was confirmed as Director of Central Intelligence. Elliott Abrams pleaded guilty to the equivalent of a speeding violation. Both Oliver North and John Poindexter had the charges against them dropped. And somehow Christmas came once again.

The North and Poindexter dismissals were particularly tough on Grinch Walsh, leaving him with no stolen presents to show for his $50-million expense account. But it's also somewhat tough on Oliver North himself, at least in terms of his just-published Under Fire. Had there remained the air of impending doom around the former National Security Council staffer, his book might have focused the nation's attention on whether what Lawrence Walsh is doing bears any relation to justice. But with the threat of a stint in the pokey removed, the debate shifted from the constitutional to the confrontational: whether Ronald Reagan knew, really knew, what was going on.

Oliver North says he did. Ronald Reagan says he didn't. Others, including many of those who were intimately involved, said they don't know whether Reagan knew, didn't know, or knew but then convinced himself that he didn't know. Putting aside his own claim (for which he concedes he had no real evidence), North probably put it best when he says that "President Reagan didn't always know what he knew." That may sound harsh, and it is certainly far from gallant, but it is nothing more than other Reagan admirers have said about the man and - given the President's confused performance during his own filmed testimony about the affair - eminently plausible.

There remains, to be sure, the question of Oliver North's own relation to the truth. "When Ollie would say to you, "The Contras are starving,' he didn't mean that the Contras were literally starving," says one former associate. "It was just his way of saying they were in bad shape, and we knew that." This gift for drama is far from making him a liar (no one who has ever written direct-mail pieces is in a position to cast stones here). But coupled with the admissions about being less than honest on a few occasions, it does bring to mind the elementary admonition to hear both sides of a tale before reaching a conclusion.

In the event, Under Fire is by no means a sustained grudge piece against Reagan; in fact, North makes it clear that whatever hard feelings he has against the Gipper are based almost entirely on Reagan's role in first agreeing to a special prosecutor and then failing to pardon the subjects of Walsh's investigations before leaving office. These are both perfectly valid reasons for a grudge. But the book's importance is larger than the questions of whether or nor Reagan knew, whether North or McFarlane is telling the truth (though McFarlane surely deserves some credit for shooting down Walsh's case against North by admitting he had been influenced by North's testimony before Congress), or whether North was right or wrong. The most interesting question is whether North et al. ought to have been prosecuted in the first place, regardless of whether they were right or wrong. North gets right to the point in his first chapter:

Despite everything that's been said or

implied, the "diversion" was not illegal.

You could argue that it was a bad idea - that

much is certainly debatable - but

despite all the allegations, the transfer of

funds did not violate any laws. After five

years and tens of millions of dollars

spent on investigations, prosecutions, trials,

and tribunals, no one involved in

Iran-Contra was ever tried for "diverting"

anything.

It is seldom noted even where Lawrence Walsh did come up with convictions, that they were by and large for actions relating to the Iran-Contra investigation and not Iran-Contra itself. Abrams, for example, was convicted for misleading Congress about solicitations made to the Sultan of Brunei for money for the Contras, not for the perfectly legal solicitations.

I am of the camp that thinks the arms-for-hostage swaps with Iran were a horrible idea. North admits this early on, but he implies it was worth the risk. Undoubtedly it's an arguable point, bit I would base my case on North's own account of how he pestered Bud McFarlane not to call off talks that were going nowhere during their first visit to Teheran, how the photos and videotapes of the hostages had emotionally affected him, and how all of this had led him to the conclusion "that saving a life - or trying to - is even more important than preserving a policy." It's not that this is not an understandable reaction to the special pressures of the task. It's because it is understandable that you establish principles beforehand, to serve when temptation beckons.

That something is clearly wrong-headed, however, does not make it unconstitutional, and here I would call Mr. Walsh as my witness for the opposition. With all the resources at hand, with unprecedented prosecutorial discretion, he has yet to produce evidence of anything unconstitutional. If so determined a man, with all these resources at his command, could not come up with anything substantive, does that not effectively call into question the wisdom of his own employment? The Founding Fathers, after all, thought executive malfeasance would best be corrected either by the impeachment powers granted Congress or by the voters at the election booth. Like so much other political mischief, the extra-constitutional office of special prosecutor traces its lineage to Watergate, so that it has now become a weapon with which a Democratic-controlled Congress can embarrass Republican Administrations by criminalizing policy with which they disagree. In the wake of the Evil Empire's collapse, the war in the Gulf, and the Sandinista defeat at the polls, it might also be worth while to ask, as North does, "Why were those policy differences [between the two parties] so great to begin with."

In the meantime, the special prosecutor continues his term, and North correctly points out that by not taking on Congress directly Reagan helped contribute to the weakening of the Presidency. The writers of the Federalist Papers could not have foreseen a Boland Amendment or War Powers Resolution Act, but they certainly would not have been surprised. They would have assumed, however, that the executive branch would fight back, as, for example, George Washington did when he refused to give in to a congressional demand for details of negotiations behind the Treaty of Paris. By allowing the special prosecutor to hound his former associates in the first place, and then by failing to pardon them before he left office, Reagan not only unleashed great personal anguish for the affected families, he also inflamed the appetites of a Congress hellbent on settling policy differences in the courthouse rather than at the ballot box.

Did I mention that Under Fire is also funny? To be sure, there is much more here about North's early marital problems than I think decent to print (another subject in which the public's right not to know ought to be invoked), as well as a number of references to his personal relationship with the Lord to remind you that he is a born-again Christian. With anyone else these might have been simply ponderous, but North's essential good grace and humor, reminiscent of Reagan, serve him well. These frequent allusions to Scripture did not go unnoticed by the press, and when teased about them he said that the Bible was one of two things he made sure to read every day, the other being the Washington Post. "That way I know what both sides are thinking."

The Grinch never had a chance.

Mr. McGurn is NR's Washington Bureau Chief.