Rice and the Ted Olson Effect

Speaking of Condoleeza Rice's reluctance to testify under oath, it's worth noting the last paragraph of this AP account:

But White House Counsel Alberto Gonzales said that in order for presidents to receive the most candid advice from their staffs, "it is important that these advisers not be compelled to testify publicly before congressional bodies such as the commission."

As the story earlier notes -- and this quote makes quite clear -- the White House is depending on arguments about executive privilege to insulate Rice from having to testify. This is questionable at best, of course, since National Security Advisers have a long history of testifying before congressional bodies. It's just that for this administration, any such appearances are considered a capitulation.

It will be interesting, then, to see whether the 9/11 commission decides to insist on making her testimony both public and under oath. If it does, count on the White House to fight tooth and nail.

That's because Bush's solicitor general (and clearly the chief driver of the administration's legal policy) is none other than Ted Olson, whose history includes an independent counsel investigation into his behavior over asserting executive privilege during the Reagan administration.

What was especially noteworthy about that previous episode was the fact that Olson's advice about the privilege assertion was fundamentally unsound, from start to finish.

Olson, you may recall, essentially forced EPA administrator Anne Gorsuch Burford to assert executive privilege over a set of documents that Congress was requesting in its investigation of alleged wrongdoing (later proven) within the EPA:

The Dingell panel issued a subpoena on Oct. 22, and within three days, Olson was putting the finishing touches on a memorandum to President Reagan recommending he assert executive privilege over the documents. During meetings to discuss the memo, Burford's position was again voiced: "Be sure these documents are worth it before we go through this."

Olson ignored that advice. His final memo to Reagan on the matter, dated Oct. 25, 1982, stated without qualification that the documents contained no evidence of wrongdoing by administration officials, which is one of the legal conditions for asserting executive privilege. It also informed Reagan: "The Administrator [Burford] concurs in this recommendation."

But in fact, Olson and his staff had failed to ascertain whether either assertion was true. In reality, Burford was far from concurring. She later testified that she failed to see how Olson could have been unaware of her reluctance -- that her hesitancy had been obvious, and that she had suggested that Olson explore alternatives to asserting privilege. There's no evidence, however, that Olson and Burford had ever discussed the issue directly; they had never met face to face.

The biggest flaw in Olson's Oct. 25 memo, however, was the statement that the documents he was seeking to keep from investigators contained no evidence of wrongdoing. In fact, Olson's staff had not even conducted a thorough review of the documents Dingell wanted -- some 51 pieces in all -- and would not do so until Dec. 9, well after executive privilege was asserted. There had been a preliminary review in early October, and even then red flags had been raised; the OLC lawyers forwarded them at that point to Dinkins' attorneys for more detailed review. There is no indication that review was ever completed; Dinkins conducted a cursory check and then apparently let the matter lapse.

Over the next few months, it became immediately clear that the assertion was fatally flawed, especially after the documents had been finally reviewed and in fact evidence of criminal wrongdoing was found among them. In spite of this, Olson pressed ahead with a bizarre and unprecedented lawsuit against Congress:

When the full House cited Burford on Dec. 16, he and his team responded with an extraordinary civil suit in federal court contesting the constitutionality of Congress' contempt powers, charging that the invocation of privilege was proper and that the contempt citations should not stand. The suit, however, had a short shelf life; it was dismissed by the court on Feb. 1.

The Olson team's effort was "without a doubt the sloppiest piece of legal work I had seen in 20 years of being a lawyer," Burford later wrote in her memoirs. It only cited in its support nonbinding opinions from a single case -- former President Richard Nixon's suit against the House Judiciary Committee -- and Burford notes that no factual defenses were raised.

Olson was later investigated for likely perjuring himself in later testimony before Congress on this matter. But in spite of that, he was never forced to reckon the fact that he had given President Reagan profoundly bad advice and sent him on a quixotic attempt to overreach the powers of the executive branch.

As I put it back in 2001:

Olson's ... single-minded effort to assert executive privilege actually overlooked what the law permitted, and it wound up costing President Reagan dearly. One is only left to wonder what dubious legal tangles he has in store for President Bush's agenda.

Now that he is advising Bush in an even more powerful capacity, Olson's fetish for expanding executive-branch powers -- especially through executive-privilege assertions -- has been apparent through most of this administration's tenure; the most worrisome of these have been the powers obtained through its assertion of the right to declare citizens "enemy combatants" and to incarcerate them under military tribunals.

But if the White House tries to assert executive privilege for Rice -- who has, of course, been all over the networks and talking to reporters left and right -- before the 9/11 commission, it may find itself in the same strange no-man's land that Olson concocted for Ronald Reagan back in 1983.