Sunday, September 16, 2007

Escaping Olson

-- by Dave

It's looking as if -- for a change -- better sense is prevailing in the Bush White House, and it's going to eschew the temptation to nominate Ted Olson as the next Attorney General, and is going with a respected judge named Michael Mukasey. This is good news for the country, and even good news for Bush; as Joe Conason observed, an Olson nomination would only have deepened Bush's reputation as pugnacious, not presidential.

The conservative base is complaining about the decision, and apparently there's a move afoot to give Mukasey the Harriet Miers treatment. But this time, there won't be a Republican Congress about to enable it.

We can all breathe a collective sigh of relief, I think, because Olson would have been a disaster, especially when it came to this White House's outrageous assertions of executive privilege as part of its overwhelming executive-branch power grab. He was largely the architect of it, and he would have pursued it with a vengeance. There looks to be little likelihood Mukasey will be so inclined.

In preparing for the possibility of an Olson nomination, I spent some time going through my old notes and my copy of the Independent Counsel report in his case, which I reported on for Salon back in 2001. In the process of writing that story, I created a timeline that lets you see how the whole scandal unfoldfed.

I think it's especially instructive, because all the underlying worldviews that we've come to know in the past eight years were present here: the duplicitousness, the cynical manipulation of the law for partisan outcomes (particularly in covering up their own wrongdoing), the ass-covering and personal agendas, and most of all the venomous rage and desire to avenge Watergate -- they all come bubbling up.

This earlier scandal gives a kind of window into how Bush and his legal team have operated up to this point. Essentially, they are real Nixonites wreaking Tricky Dick's Revenge on the country, wresting back executive-branch powers lost during Watergate and then pioneering new realms in power-snatching. They began doing this during the Reagan years, and the Dubya years have basically been seven years of wish fulfillment for their wildest schemes.

So for your Sunday reading, I thought I'd give you the timeline I created. If nothing else, it's an entertaining tale in gross hypocrisy and ethics-less legal maneuvering, Republican style. Enjoy.


Cast of players:

Theodore B. Olson, Assistant Attorney General for the Office of Legal Counsel

Anne Gorsuch Burford, Administrator, EPA

Rita Lavelle, assistant administrator for solid waste and emergency response

Rep. Elliott H. Levitas, D-Ga.

Rep. John Dingell, D-Mich.

Carol Dinkins, Assistant Attorney General, Land and Natural Resources Division

Robert Perry, EPA General Counsel

John Daniel, EPA Chief of Staff

Larry Simms, Deputy Assistant Attorney General, OLC

Michael Barrett, chief counsel for Dingell subcommittee

Edward C. Schmults, Deputy Attorney General

D. Lowell Jensen, Assistant Attorney General, Criminal Division

Laurel Pyke Malson, attorney aide to Olson

Michael W. Dolan, Deputy Assistant Attorney General for Office of Legislative Action

Edwin Meese, Attorney General

Alexia Morrison, independent counsel


Sept. 13, 1982: House Subcommittee on Investigations and Oversight of the Committee on Public Works and Transportation, chaired by Rep. Elliott H. Levitas, D-Ga., seeks access to EPA files involving enforcement of the so-called “Superfund” hazardous-waste cleanup provisions, particularly focusing on the activities of Rita Lavelle, assistant administrator for solid waste and emergency response. EPA staff reluctant to disclose some information.

The information in question involves the handling of funding for three Superfund sites: Stringfellow in California, Berlin and Farrow in Michigan, and Tar Creek in Oklahoma. Specifically, there are concerns that “election tracking” -- the practice of timing key events, such as the announcement of cleanup funding, to assist the election campaign of “friendly” (read: Republican) politicians -- had occurred in the funding of those three sites. Such activity by federal authorities had been outlawed in the post-Watergate ethical reforms passed by Congress.

Moreover, there was some concern that Lavelle -- who had been previously employed as an executive at Aerojet-General Corp., one of the contributors at the Stringfellow site -- was continuing to work on the Stringfellow case despite having been ordered away by her EPA superiors, largely because of the gross conflict of interest her work on that case represented. There were also charges that the EPA was mishandling enforcement at the site in ways that favored Aerojet.

Sept. 15: Levitas sends formal request to EPA Administrator Anne Gorsuch Burford.

Sept. 16: EPA staff seeks advice on disclosure issue from Land and Natural Resources Division staff of the Justice Department, headed by Assistant Attorney General Carol Dinkins. In turn, Dinkins seeks advice from Office of Legal Counsel, headed by Olson.

Sept. 17: John Dingell, chair of the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce, sends request for second subset of documents being sought by Levitas.

Executive branch produces large number of documents over next three months, but some are withheld on grounds that their release might prejudice ongoing EPA investigations.

Oct. 1: Olson participates, as chief of OLC, in a meeting of EPA and Justice Department officials to discuss turning over these “enforcement sensitive” documents. OLC favors a “staged response” in releasing the documents, noting that they include some “politically sensitive” material. EPA officials are inclined to transmit all documents, while Justice officials are adamant that broader Executive Branch interests are at stake and argue vehemently against unlimited access.

A footnote describes a conversation after the Oct. 1 meeting between EPA General Counsel Robert Perry and Burford’s chief of staff, John Daniel, that took place in a car. “Perry told him that he had heard rumors that Dinkins was going to resign, that he had been contacted about the job, and that he would like to go to work at the Department (of Justice). Daniel saw this as a possible explanation for what he viewed as Perry’s weakness and failure to be an advocate for Burford.” This weakness plays a central role in unfolding events.

Oct. 6: Deputy Assistant Attorney General Larry Simms -- Olson’s top deputy -- meets with Perry in his office. Simms complains that the “enforcement sensitive” documents have not yet been sent to Justice, as requested. Perry tells him that no one at the department is interested in withholding them. Simms argues forcefully that the EPA is not free to give up the documents.

Afterwards, Perry meets with Michael Barrett, chief counsel for the Dingell panel, who is attempting to pin Perry down on document production. No agreement is reached, but Perry promises to get back to Barrett within the week.

Oct. 7: Perry reports back to Simms. Perry reports that Dingell staff is unwilling to compromise, and reiterates that no one at EPA is interested in withholding the documents. [At this point, large sections of Simms’ response is redacted from OIC report, ostensibly because it contains grand jury material. It does, however, state: “Simms told Perry to finish gathering the documents as soon as possible and to send a complete set of copies to the Department.”]

Afterward, Perry meets with his deputy and EPA counsel staff and tells them that “someone at the Department [of Justice] had asked him to send the Department all of the requested Superfund documents, copies as well as originals, in order to rid EPA of actual possession of them and thus defeat the Subcommittee’s possible subpoena.” The staffers advise him that it would be “ill-advised” to do this.

However, Perry then calls up Barrett that afternoon and asks him hypothetically how the panel would respond if that were to happen. Barrett tells him the committee would view it as an obstruction of its inquiry, and threatens to hand him a subpoena that afternoon, if need be. Perry tells Barrett that someone at Justice suggested the transfer (but does not say who), then says he might have misunderstood the advice, and promises to inquire further and report back.

He does so that afternoon, and Simms advises him that EPA is required to keep its own copies of the documents and any attempt to shed them by that route would probably be criminal. Perry calls Barrett back and assures him EPA will retain copies of all the documents.

Oct. 8: Malson conducts first cursory review of documents for Olson and raises red flags. Simms forwards the documents to Dinkins at Lands for a thorough review. This review is apparently not conducted until after Dec. 1.

Oct. 14: Some of Dingell panel staff receive “eyes on” review of documents, with apparent approval by Simms and coordinated by EPA counsel. A proposal to allow secure review of the documents is floated by Dingell staff.

Oct. 15: At meeting of Justice lawyers to discuss Dingell request, Olson makes clear his disapproval of proposal for a secure review. The lawyer who offered it, Lands Deputy Assistant Attorney General Alfred Regnery (he had also facilitated the “eyes on” review, word of which made Olson irate), was shortly taken off the case, though Olson tells Simms the removal is unrelated to this matter.

Oct. 21: Dingell’s subcommittee serves subpoena for documents. Levitas subcommittee follows suit on Nov. 22.

Oct. 22-25: Olson drafts memo to President Reagan recommending he assert executive privilege in denying access to the documents. It contains the line: “The Administrator concurs in this recommendation.” It also states without qualification that the documents contain no evidence of wrongdoing by Administration officials.

However, Olson and his staff had in fact failed to ascertain whether either assertion was true. There is no evidence that anyone at OLC contacted Burford or discussed with her staff their plans to asset executive privilege -- a burden she would be forced to shoulder. Apparently someone at an Oct. 25 meeting to discuss the memo outlines what her official response should be, but there is no evidence that information is ever relayed to her.

And in fact, Burford was far from concurring -- a point that had been suggested in that Oct. 25 meeting, at which Burford’s position was summed up: “be sure these documents are worth it before we go through this.”

Later, both Olson and Simms say they thought their statement was true when they wrote it, but there was no evidence that Burford (or anyone else from EPA) in fact had ever voiced her concurrence to them. But they cited the “totality of the circumstances,” including the fact that Robert Perry -- who was present during many of the preliminary meetings where executive privilege was discussed -- failed to state that Burford had any opposition. Perry’s apparent eagerness to get along with his would-be colleagues at Justice may have colored his behavior here.

Moreover, according to the IC’s report, “Burford failed to see how Olson could have been unaware of her reluctance over the privilege claim. She stated her hesitancy was obvious and included suggestions to Olson that alternatives to privilege be considered and employed.”

Equally important, WRT the Oct. 25 memo, is the assertion the documents contained no evidence of wrongdoing. In fact, his staff had not even conducted a thorough review of the Dingell documents -- some 51 pieces in all -- for their contents, and would not do so until Dec. 9. (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 Lands attorneys for more detailed review. There is no indication that review was produced.) The additional Levitas documents were not examined until an even later review.

[A central tenet of asserting executive privilege is that the information being protected must not include evidence of misconduct by the Executive Branch.]

Oct. 26: Reagan signs directive to Burford to invoke executive privilege over the subpoenaed documents. However, because the Dingell hearings had been postponed, the directive was left in a safe without ever being sent to Burford or anyone else.

Nov. 1: Olson and Burford meet in Burford’s office, along with EPA, Justice and White House staff, and there is “immediate antagonism” between them over the executive-privilege plan. Burford’s concerns are perhaps more political than principled; she says she had been dismayed by the way James Watt, the Interior Secretary who the previous year had invoked executive privilege in a similar dispute, had not been sufficiently backed up by the Administration. She backs down only after asking whether the President wants her to exert executive privilege, and being told he did.

Strangely enough, not a single person at the meeting manages to tell Burford that Reagan in fact had already signed a directive ordering her to do so.

Nov. 22: After Levitas panel issues its subpoena, Olson and Burford meet again. Burford immediately raises her concerns about being left to dangle in the wind like Watt, and Olson assures her that she has the full support of the Justice Department. (Ensuing events would indicate her fears were well-grounded.) Then she asks Olson if Justice can take over the assertion of privilege, or whether at least Olson himself can make the assertion before Congress; he demurs and says the job must be hers. Burford complains that she is not in the driver’s seat but is being forced to take the “flak.” Olson responds by explaining that the President listens to advice from all quarters, including hers, and then acts accordingly -- suggesting that she needed to take the hit for the home team, so to speak.

Nov. 30: Following advice from Justice Department, President Reagan directs Burford to assert executive privilege in response to both subpoenas. Burford does so on Dec. 2 before Levitas panel, and on Dec. 14 to Dingell panel. Each committee promptly cites her for contempt of Congress.

Dec. 3: Perry testifies before the Dingell subcommittee. During a long and rancorous exchange, he denies ever having told Barrett that someone at Justice advised him to send all copies of the documents to Justice. He also says he can’t recall telling Barrett that the EPA had no interest in withholding the documents.

Dec. 9: Olson and his staff finally begin review of the contents of the withheld Dingell documents. A document is found indicating that Lavelle had in fact continued to participate in the Stringfellow case even after having written a letter of recusal. Staffers bring this document to Olson’s attention and he warns them not to jump to conclusions. Nonetheless, a few days later (Nov. 14), Perry transmits a copy of the document to the Dingell subcommittee with a letter explaining that it did not fall within the executive-privilege claim.

Perhaps as important, two other documents are contained within these that indicate activity in “election tracking” WRT funding announcements. However, Olson’s staff do not consider these of importance since they have not been instructed to look for this kind of activity.

Dec. 12: Simms and Olson meet to discuss Perry’s congressional testimony of Dec. 3. Simms is worried because he believes it to be perjurious. Simms later testifies that by this point he considered the privilege claim doomed because of the blows to the administration’s credibility brought by Perry’s testimony and the discovery of the Lavelle Stringfellow document.

Dec. 16: The Full House votes to hold Burford in contempt of Congress.

However, with Olson leading the charge, the Justice Department takes on the House citations. It files a civil lawsuit in the U.S. District Court for the District of Columbia, charging that the invocation of privilege was proper and that the contempt citations should not stand.

Jan. 14, 1983: Dingell sends another request to Burford for the documents, citing allegations that indicate the investigation is focusing on Lavelle.

Jan. 26-27: Justice officials meet to discuss the Dingell letter, including the possibility of opening a criminal investigation into the charges against Lavelle. Simms by this time strongly favored this course. Another participant indicates the charges against Lavelle might be true.

Deputy Attorney General Edward Schmults, at whose offices the Jan. 27 meeting is held, indicates a desire to involve the White House Counsel’s office. Simms argues that the matter belongs in Justice’s Criminal Division.

Feb. 1: Court dismisses Justice’s civil suit on behalf of Burford.

Feb. 2-3: Olson’s staff, with updated instructions, re-reviews the withheld documents and finds two documents from EPA attorneys under Lavelle that could constitute “election tracking”. Staff presents them to Olson, who indicates he will take the notes to Schmults.

Feb. 4: Burford asks Lavelle to resign. She refuses. She is removed by Reagan on Feb. 7.

Feb. 9: Simms approaches Olson again about pursuing a criminal investigation of the Lavelle charges. According to the IC’s report, “Simms was convinced that something had to be done about possible misconduct by EPA staff, and Simms had the impression from Olson that others at the Department did not want the documents to go to the Criminal Division.”

Feb. 10: Olson advises Simms that, rather than send the documents to the Criminal Division’s John Keeney, he had arranged for D. Lowell Jensen, Assistant Attorney General for the Criminal Division, to review them. Simms prepared a package complete with explanatory letter, which Olson removed and replaced with a note: “Lowell -- Here’s some reading for your spare time. Ted.”

Feb. 17: Burford has two meetings with White House officials, arguing strongly for giving up the executive-privilege claim. She then meets with Reagan himself, and tells him “his interests were not [being] well served” by the assertion of executive privilege, pleading with him to let her release the documents. Reagan seems to agree, but they all agree to wait to see if negotiations with the Dingell people, then under way, would bear fruit later that week.

Feb. 18: Agreement reached to release documents to Dingell and Levitas subcommittees.

Feb. 25: Stringfellow documents turned over to congressional panels.

March 9: Anne Burford resigns as EPA Administrator. Contempt citations are withdrawn shortly thereafter. John Hernandez is appointed acting EPA administrator, and Reagan agrees to give all subpoenaed documents to House subcommittees without going through the screening process.

March 10: Mrs. Burford, in farewell news conference, says she resigned because, ''It was getting to the point where I couldn't do my job anymore.'' Speaking to EPA employees, Hernandez vows to ''get this agency back to work.''

March 11: Reagan holds news conference at which he stoutly defends Mrs. Burford and blasts what he calls ''environmental extremists,'' who he says won't be happy ''until the White House looks like a bird's nest.''


Feb. 24, 1983: Rep. Peter W. Rodino Jr., D-N.J., chairman of the House Judiciary Committee, agrees to conduct inquiry into Justice’s handling of the Superfund documents. Rodino writes to Attorney General French Smith seeking documents. Second letter seeking more documents is sent March 2, seeking documents specifically related to Office of Legal Counsel’s role in the EPA controversy. Olson participates in drafting responses to the two letters, which are transmitted over signature of Robert A. McConnell, Assistant Attorney General of the Office of Legislative Affairs.

March 10: Ted Olson testifies before the Subcommittee on Monopolies and Commercial Law of the House Judiciary Committee. Five areas come under later scrutiny for their truthfulness.

I: Rep. John F. Seiberling, D-Ohio, questions Olson:

Mr. Olson, the question of whether EPA wanted to turn over the documents at some point before the decision was actually made not to do so, and who advised them not to, is a very important one. And I’d like to ask whether, to your knowledge, at any time EPA did indicate its willingness to turn over the documents during the course of your consideration of the Subcommittee’s request.

Olson’s answer:

I don’t recall having been told that by anybody associated with EPA. I did read the newspapers, and it seemed to be that through -- that that sentiment seemed to be being expressed, especially in the last week or two. But that’s all I know.

This response would, in today’s context, be hailed as “Clintonesque” -- evasive and misleading, though technically just safe, particularly since he prefaces it with “I don’t recall”. However, well before the Oct. 25 memo was drafted, Robert Perry had told Larry Simms (Olson’s chief deputy) that EPA was willing to turn over all the documents, and Simms testified that he relayed that information to Olson. In fact, he had that information -- he just hadn’t heard it himself from anyone at EPA, as his response states.

Indeed, during the Oct. 25 meeting that included Sherrie Cooksey from the White House Counsel’s office, discussing the memo recommending the president assert executive privilege, someone made clear what Burford’s position was, since Cooksey’s notes read that her position was: “be sure these documents are worth it before we go through with this.” As it turned out, this was sound advice, and had Olson followed it, everyone would have been spared the turmoil that followed.

It is also clear that at least by the Nov. 1 meeting between Burford and Olson that it was plain that the EPA administrator was reluctant to assert executive privilege. The IC report says: “Daniel recalled that at this or a later meeting with Olson, Burford said that enforcement sensitivity was not a basis for executive privilege, that Congress would get the documents anyway, and that she did not want to assert the privilege because she was mindful of the experience of Interior Secretary James Watt, who she felt had not been backed up by the Administration in his assertion of the privilege.”

Olson later tries to claim that this is irrelevant, since these meetings and other actions by Burford took place after the time frame posed by Seiberling’s question. This true only in a narrow sense: Reagan had signed the directive Oct. 26, but he did not deliver it until Nov. 30. It is clear that by then, Burford’s resistance was unmistakable.

Larry Simms is also concerned about Olson’s testimony. As the IC report puts it:

Simms viewed Olson’s answer as “incomplete,” because it did not include the discussion Simms had with Perry on Oct. 7 or 8, in which Perry said that nobody at EPA saw any reason not to produce the documents. Simms recalled that he had told Olson about the Perry conversation and did not understand why, in light of that discussion, Olson responded to Mr. Seiberling’s question about EPA’s willingness in a way that suggested that he had never been told about Perry’s statement.

However, as Simms would later note, Olson’s testimony in a narrow sense was literally true.

II:Rep. Jack Brooks, D-Texas, asks Olson about unanimity within the Executive Branch concerning the privilege claim. Olson responds:

[T]he people that were involved in the enforcement process at EPA from the enforcement level through the policy level through the Administrator, and at the Land and Natural Resources Division at the Department of Justice, and in my office, and the other people at the Department of Justice that were involved in the matter, and the Office of the Counsel to the President, and the President, agreed that this was a proper occasion for the invocation of the privilege, that it was in the best interests of the Constitution and the manner in which the Constitution assigns the enforcement of the law to the Executive Branch, and it was in the best interest of the enforcement process at that time.

Whenever other people or some people in that process may have changed their mind later because of developments or allegations or because it became uncomfortable, I don’t know. But --

Again a masterful display of disingenuous testimony. “Other people” -- a reference, apparently, to Burford and other EPA officials -- didn’t ever change their minds. As Burford observed in her commentary on the IC report: “Until told directly by Mr. Hauser, deputy legal advisor to the President, that the President wanted to assert executive privilege, it was my policy at EPA to give Congress ‘access’ to any and all documents requested. ... [A delineation of policy.] ... All of the above reasons substantiate my position that ‘access’ to document requests always be as full and complete as possible and that claims of privilege to hamper such discovery should not be used.

Burford goes on:

After I received the Executive Order of the President to assert executive privilege, I personally went twice to ask President Reagan to revoke his order, arguing that it was both a legal and a political mistake.

To interpret my acquiescence in an order from the President to assert executive privilege as a “recommendation” that he assert the privilege is convoluted and revisionist at best.

[The last phrase could be said to describe Olson’s entire modus operandi.]

OLC Attorney-Advisor Mark Rotenberg, who is attending, immediately becomes concerned with this part of Olson’s testimony, since he himself recalled a meeting at which he expressed reluctance about asserting executive privilege. He also recalled EPA officials being “uncomfortable and incorrigible” over the assertion of privilege.

Laurel Pyke Malson, one of Olson’s aides (who performed the December reviews of the withheld documents), also attending, later says she viewed Olson’s testimony as “deliberately evasive.” She later wrote that “Mr. Olson appeared to construe questions as narrowly as they reasonably could be interpreted.”

III: Rodino asks Olson whether Justice has provided all the documents requested in his letters and is not withholding any. Olson’s response:

Well, Mr. Chairman, we tried to provide everything that we have that pertains to the advice that we have given. Most of those documents are published.

I don’t included handwritten notes of my own. I make xerox copies of cases and make notes in the margin. There are scraps of paper probably everywhere. I’m not sure that we’ve included everything. We’ve included everything that we think is relevant to the questions that you’ve asked and to the advice that we’ve given.

IV: Seiberling asks Olson what advice OLC provided in support of the civil suit filed against the contempt citation. Olson says he provided a great deal of advice and agreed strongly with it. Seiberling asks whether Olson’s advice is in writing, and Olson responds: “I’m not sure.”

This response also stirs immediate concern on the part of Rotenberg, since Rotenberg knew that at least some of Olson’s advice in fact was in writing.

V:Rep. William J. Hughes, D-N.J., further inquires of Olson:

Let me be more specific so you can answer it perhaps. With regard to some of the documents you turned over bearing on executive privilege, there obviously were alternatives, discussions reduced to writing on the various options. Now, have they been turned over as well as the document that represents the final recommendation or decision?

Olson responds:

We did not prepare option papers, if that’s what your question is. Every draft, in a sense, presents options, every discussion presents options. That’s why I have difficulty with the basic questions. But I don’t know of any option papers or anything of that nature.

March 15: Smith testifies before the full Judiciary Committee, and says Justice Department would place no limits on access to documents on this matter.

March 16: Transcript of testimony forwarded to Olson for review.

April 1: (Note irony of the date) Olson returns testimony with changes, some merely typographical, but in some cases altering the substance of what he said.

-- He changes his response to Seiberling’s question about whether any of his advice on the civil suit was in writing from “I’m not sure” to “I’m not sure, I believe that some of it was.”

-- He changes his response on point III to: “They may have, but I do not recall having been told that by anybody associated with EPA. I did read the newspapers, and it seemed to be that that sentiment seemed to be being expressed, especially in the last week or two. But that’s all I can expressly recall relative, particularly, to the final decision which was made to claim a privilege relative to these documents.”

March 16-30: Alan Parker, Counsel to the Judiciary Committee, meets with Justice officials and staff twice to discuss document production. At this point, Parker believes that all responsive documents would be produced.

However, Schmults has decided that no handwritten documents would be produced -- and that Parker is not to be informed they were being withheld. Some Justice staff advise Schmults to inform Parker, but he refuses.

From April 1983 to April 1984, document production proceeds apparently smoothly, with Parker believing the Justice Department is providing all documents sought related to its requests. However, during this time a number of handwritten notes are withdrawn from files being produced at the instruction of Michael W. Dolan, Deputy Assistant Attorney General for Office of Legislative Action (under McConnell).

During this time, Schmults leaves Justice to return to private practice.

Sept. 28, 1983: Burford testifies before the Dingell subcommittee. Then-Rep. Albert Gore engages Burford in an extended colloquy regarding Mr. Olson’s behavior. Gore scores repeatedly:

Gore: If someone were to recommend to the President on Oct. 25, 1982, that the President assert executive privilege as to the documents in question, and then state specifically that the Administrator -- you -- concurs in this recommendation, that would be untruthful, wouldn’t it?

Burford: Mr. Gore, I tried very hard to be a member of this administration and a team player. I couldn’t run EPA and also run the Department of Justice. ... I made my arguments internally whenever I could, and when I was overruled by the Department of Justice, which is the attorney for the President, I went along with that decision.

Gore ... So you did not concur in the recommendation to the President.

Burford: Mr. Gore -- I was overruled.

Gore continues to try to pin Burford down on the question of whether she in fact concurred with the recommendation at the time it was made to the president. “I kind of gave up,” was her repeated response. At one point she says: “I don’t really want to do this, I don’t think this is a good idea.”

April 17, 1984: Dolan discloses to Judiciary Committee staff that handwritten notes have been withheld. He is later chastised by Olson for being “too forthcoming.”

May 18: Jensen produces more documents with cover letter informing Rodino that anything with “inchoate or incomplete thoughts” such as drafts, marginal notes and personal notes would not be produced.

May 24: Rodino responds that Jensen’s letter is an apparent rejection of committee’s request. Over ensuing months, more negotiations would ensue. Document production is ultimately not completed until 1985.

Dec. 5, 1985: Judiciary Committee issues its final report. It recommends that Attorney General Edwin Meese seek appointment of an independent counsel to investigate possible criminal conduct it found, including possible perjury and obstruction of justice by Olson, Schmults, Dinkins and Richard Hauser, deputy White House counsel.

Dec. 1985-April 1986: Department of Justice’s Public Integrity Section identifies four specific cases of misconduct by Justice officials: Edward Schmults, Theodore Olson, Carol Dinkins and Richard Hauser.

Schmults in particular is the object of an obstruction-of-justice inquiry for his role in withholding the handwritten notes from congressional investigators. Olson is targeted for a perjury investigation for his testimony, on the five points explored previously. Dinkins and Hauser are targeted for allegedly having certified their respective reviews of the withheld EPA documents falsely.

Most significantly, the Public Integrity Section describes the circumstances around these acts as:

a seamless web of events, germinating from the original decision to withhold EPA documents. Each criticism and allegation, whether relating to the handling of the EPA document controversy itself or the handling of the investigation of the Department’s role in that controversy, has as its context many facts and circumstances that comprise the heart of other criticisms and allegations. Accordingly, in our view, splitting off narrow areas for investigation by an Independent Counsel is artificial and may impede the Independent Counsel’s ability to fully explore the allegations.

Accordingly, Public Integrity recommends to Meese that jurisdiction of the IC “be broad enough to allow the Independent Counsel to investigate or prosecute any matter within the scope of this report.” This recommendation is completely ignored -- or perhaps heeded too well.

John Keeney, Deputy Assistant Attorney General for the Criminal Division -- who participated in the events, but nonetheless invoked the “rule of necessity” in staying in the line of review -- recommends that only Olson’s actions warrant an IC investigation.

Meese appoints William F. Weld, then U.S. Attorney for Massachusetts, to handle an independent review of the matter, since everyone at the Assistant Attorney General level or higher at Justice was forced to recuse himself from consideration of the matter, since each of them had been involved with the events or were close friends of Olson.

April 4, 1986: Weld recommends that an independent counsel be appointed to investigate both Schmults and Olson, but not Dinkins or Hauser.

April 10: Meese overrules both Weld and his own Public Integrity Section, instead handing down a very narrow referral limiting the scope of the independent counsel’s review to the behavior of Ted Olson.

It is worth noting that Meese and Schmults are attended college together (Meese says he “can’t recall” ever having met Schmults before 1980), and that Meese himself had been involved -- as counselor to the President -- in the events under investigation at EPA. Yet Meese not only refuses to recuse himself, he in fact ignores the independent recommendations he receives from his own career prosecutors and hand-picked special assistant. Meese defends this by referring to Keeney’s (potentially tainted) recommendations.

Moreover, Meese defends his decision by saying that Schmults and Dinkins “lacked the requisite intent under pertinent criminal statutes” -- a peculiar finding, since typically intent is determined during the course of an investigation (and lack or presence thereof usually plays a key role in determining whether to prosecute). Moreover, the allegations against Schmults and Dinkins both clearly reached the relatively low statutory standard for referral, and the question of intent is typically beyond the scope of the statutory preliminary inquiry. [Eventually, after Meese exploits this loophole, Congress in 1987 will explicitly bar such considerations as intent for refusing a referral under the IC statute.]

April 23: U.S. Circuit Court of Appeals for the D.C. Circuit, Special Division for the Purpose of Appointing Independent Counsels (“Special Division”) appoints James C. McKay as independent counsel to investigate Olson.

May 29: McKay withdraws from assignment. Alexia Morrison named to replace him.

Nov. 1986-April 1987: Within a short time of opening the investigation, Morrison comes to believe that the Public Integrity Section’s assessment was correct: this case involved a “web” of events that could not be separated one from the other, and the narrow referral meant it could not explore the matter properly. As the report puts it:

On the one hand, it began to appear that, viewed in total isolation from the complex of surrounding events and based on evidence we had collected to that point, Mr. Olson’s March 10 testimony probably did not constitute a prosecutable offense because it was literally true, even if potentially misleading in certain respects. Viewed in the context of those surrounding events, however, it appeared his actions might have been part of a larger pattern of conduct, involving high-ranking members of the Department, intended to obstruct the Committee’s inquiry. In short, if Mr. Olson was culpable at all, it was probably only as part of a larger concerted effort involving the conduct of others.

At the same time, it was our view that if any single act had obstructed the Judiciary Committee’s inquiry, it was the undisclosed withholding of the handwritten notes and other documents, for which Mr. Olson bore at most secondary responsibility. Accordingly, we feared that our jurisdictional mandate may have excluded those who, if any conduct was criminal at all, bore responsibility at least as great as, and possibly greater than, Mr. Olson’s.

So Morrison goes to work to expand her office’s jurisdiction. Of particular concern was her assessment that Meese’s referral was troubling, to put it kindly. The appearance of a conflict of interest was obvious, and the refusal to heed the advice of his own prosecutors cast a pall on the whole matter.

Nov. 14, 1986: Morrison writes to Meese and asks him to reconsider expanding her jurisdiction to include the charges against Schmults and Dinkins, pointing to “certain new information” her investigators had obtained that heightened the need for probing these areas. The letter asks Meese to refrain from participating in further decisions in the case because of the appearance of a conflict of interest.

Meese does not reply for three weeks. Morrison sends a second letter, pointing to the need for timeliness.

Dec. 17: Deputy Attorney General Arnold Burns responds to Morrison, saying Meese refused to recuse himself from the matter and refused to expand her jurisdiction.

Jan. 13, 1987: Morrison files with Special Division for expansion of her jurisdiction.

April 2, 1987: Special Division, citing Meese’s referral, refuses to expand jurisdiction. However, it notes that Morrison can investigate whether Olson had engaged in conspiracy with others (including Schmults and Dinkins) to obstruct the Judiciary Committee’s work.

May 20, 22, June 5, 1987: Morrison issues grand jury subpoenas to Olson, Schmults and Dinkins.

All three move to quash subpoenas on grounds that the IC law is unconstitutional.

July 20: Judge Aubrey Robinson of U.S. District Court for D.C. upholds statute and denies motion.

Olson, Schmults and Dinkins refuse to comply in order to appeal to D.C. Circuit of Court of Appeals. They are cited for contempt of court. Case is argued before Circuit panel on Sept. 16.

Jan. 22, 1988: A divided D.C. appeals court panel, in an opinion authored by Olson friend and Federal Society cohort Laurence Silberman, rules 2-1 that IC statute is unconstitutional.

Supreme Court grants expedited review, and case is argued on April 26, 1988.

June 29, 1988: Supreme Court rules 8-1, in Morrison v. Olson, that the IC statute is constitutional, reversing Circuit panel. Antonin Scalia is lone dissenter.

Aug. 26, 1988: Morrison announces result of IC investigation, saying it had reviewed the five areas of Olson’s testimony under question, considered carefully the requirements of perjury statutes, and found that while Olson’s testimony may have been “misleading,” it did not rise to the level of prosecutable perjury.

The results (see section on Olson’s testimony above):

I: Olson’s answer is “literally true” if one applies a very narrow reading of Seiberling’s question as asking whether the EPA was willing to provide all documents unconditionally (something Seiberling didn’t ask, incidentally). This was a position Burford never supported; her willingness to produce the documents was always conditional on their remaining secure and not public, but that was a condition the investigators were always willing to meet. Second, it is “literally true” (if obviously misleading) because no one from EPA itself had ever informed Olson that EPA was willing to produce the documents, since Olson only was made aware of this through subordinates like Larry Simms.

II. Again, Olson’s answer is “literally true” if not forthcoming in every regard. Burford had by Nov. 22, at least, agreed to invoke the privilege, even if she continued to believe it was a mistake and continued to argue that it was. During one of the November meetings, Olson testified, he had cornered Burford on whether or not she supported the president on this, and she said she did. This became the cornerstone of his claim that everyone was on board.

III. Olson’s answer about document production is “by far the most troubling aspect of his testimony.” Most notably, Olson’s answer, as well as his pre-appearance submissions, had omitted any reference to the Oct. 25, 1982 memo from Olson to President Reagan recommending he assert executive privilege over the EPA documents. This was, after all, the definitive document “that pertained to the advice” the department gave Reagan on this matter. As the report notes:

Olson, moreover, had a substantial apparent motive to conceal that document in March 1983. His memorandum contained at least two statements called into question by subsequent events. First, Olson advised the President that the documents suject to the executive privilege claim Olson was recommending contained no evidence of unlawful conduct by a government agency or government officials,” and it strongly implied that the documents did “not reflect misconduct of any sort by any administration officials.” Second, he stated that the Administrator of EPA concurred in the recommendation that executive privilege be asserted. While is impossible to prove that Olson knew either statement was false on Oct. 25, 1985 -- indeed, we find to the contrary -- both had been substantially undermined by March 10, 1983 [the date Olson testified].

Of course, to a prosecutor, not knowing these statements were false is reason not to prosecute Olson.

However, not knowing these statements were false (and nonetheless asserting to the President that they are true) is also a matter of competence and judgment. This may fall outside a prosecutor’s purview, but should not fall outside Congress’ or the public’s.

Ultimately, Morrison clears him of the charge, largely on the basis of Olson’s answer to Morrison’s question, “Why didn’t you bring up the Oct. 25 memo”?”

Olson: “I forgot.”

Morrison cannot find any evidence that he in fact had not forgotten.

However, WRT Olson’s answer to Rodino: “we found that answer disingenuous and misleading ... The impression conveyed by Olson’s claim that the Department tried to provide a complete response to the Committee’s request, save for ‘scraps of paper’ and ‘copies of cases,’ was woefully inaccurate ...”

IV. Olson’s answer -- “I’m not sure” -- flew in the face of the fact that a number of his pieces of advice on the civil suit were in fact in writing, which is why he later amended it to include, “I believe that some of it was.” Morrison excuses him on the basis of his amendment.

V. Morrison finds that Olson was perfectly truthful on this point, since he interpreted -- probably correctly -- as referring to any options papers prepared regarding OLC’s advice on executive privilege. Such options papers did not exist.

My assessment: The report bends over backward to be fair. It carefully considers perjury law, and at every opportunity it casts Olson’s testimony in the most generous light possible. This is probably admirable restraint when it comes to a prosecutor, and I must conclude that, considering the constraints placed on her by Meese, the only responsible course.

Morrison’s report in fact is noted for its “defensiveness,” largely due to the fact that it was completed more than five years after Olson’s testimony. And her defensiveness is appropriate; Olson for awhile made something of minor career out of presenting himself as a martyr to an out-of-control IC statute.

However, Morrison’s explanation makes clear that the lengthiness of her investigation was due to circumstances well out of her control. First there were jurisdictional disputes that held up her ability to call a grand jury; and more significantly, there were the lengthy court processes after Olson et al tried to fight their subpoenas.

I think it is also likely that Olson was pursuing a “run out the clock” strategy, since there is a five-year statute of limitations on perjury. The lengthy appeals through the Supreme Court in fact extended the case well beyond the five-year span, so that Morrison had to reach an agreement with Olson that would allow her to finish up the report within six months after the Supreme Court issued a decision.

However, it appears that this shortened time frame did not affect Morrison’s investigation substantially (she actually reported two months after the SC ruling). Her limitations were the product of Meese’s referral, not the time span.

While I think Bush deserves some credit for nominating Mukasey, he oughtn't to break his arm patting himself on the back. It also speaks volumes about the Bush administration's judgment that it even considered a man like Olson to be the nation's next Attorney General.

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