Friday, Sep 5, 2008
Ted Olson's career as a battling Republican lawyer really began the day he stood next to James Watt as the interior secretary defiantly declared executive privilege.
That was in October 1981, a few months after President Reagan had named Olson assistant attorney general for the Office of Legal Counsel. Watt had been subpoenaed by Michigan Rep. John Dingell, the Democratic chairman of the subcommittee assigned to look into environmental cleanup efforts, to provide Dingell's subcommittee with documents relating to that work. Watt had deemed these papers "enforcement sensitive" -- that is, making them public, he said, would compromise the department's ability to enforce cleanup laws.
However, Watt's privilege assertion and the controversy accompanying it did not last long. Sensing a political fiasco, Reagan's White House counsel, Fred Fielding, negotiated an access agreement with the Dingell subcommittee in early 1982. Olson strongly opposed the terms of the agreement, and he apparently viewed the compromise as a personal defeat.
Another opportunity for Olson to again tackle the executive-privilege question presented itself in short order. In September 1982, another House subcommittee -- chaired by Rep. Elliott Levitas, D-Ga. -- sought 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. Dingell's subcommittee also asked for documents involving the same matter. EPA staff members were reluctant to disclose some information, again fearing the documents were "enforcement sensitive."
The information in question involved the handling of funding for three Superfund sites: Stringfellow in California, Berlin and Farrow in Michigan, and Tar Creek in Oklahoma. There were concerns that "election tracking" -- the practice of timing key events, such as the announcement of cleanup funding, to assist the election campaigns 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.
There was also some concern that Lavelle -- who had been previously employed as an executive at Aerojet-General Corp., one of the polluters 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 conflict of interest her work on that case represented.
EPA Administrator Anne Gorsuch Burford -- who was already embroiled in controversies over her reorganization of the department -- directed her staff to seek advice on the disclosure issue from Carol Dinkins, who headed up the Justice Department's Land and Natural Resources Division. Dinkins turned to Olson and his Office of Legal Counsel for help.
On Oct. 1, Olson led a meeting of EPA and Justice Department officials to discuss turning over the documents. Olson favored a "staged response" in releasing the documents, noting that they included some "politically sensitive" material. EPA officials, however, expressed an inclination to transmit all documents promptly. But Olson and other Justice officials were adamant that broader executive-branch interests were at stake, and argued vehemently against broad access.
Burford would later maintain that she had never requested that executive privilege be asserted in order to hold back the documents, and that she contended from the start that doing so was a political mistake. However, she had not reckoned on Olson and his apparent determination to fight this battle.
In her memoirs, Burford later wrote: "The people at Justice behind the push for executive privilege were all presidential appointees who, to be blunt, shared several characteristics: (1) they didn't have enough to do; (2) they weren't very good lawyers; and (3) they had tremendous egos. They wanted to make a name for themselves in Washington, and one way to do that while they were at Justice was to have their names on a Supreme Court case."
Tension increased between Olson and other Justice Department lawyers and EPA staff. Throughout the month, EPA staffers attempted to reach a compromise with Dingell's investigators, at one point proposing that the committee be able to review all the documents, but that they not be made public. Olson promptly shot down all those schemes and continued to proceed with plans to fight the documents' disclosure.
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.
The day he received the memo, Oct. 26, Reagan signed a directive to Burford to assert 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. Nor was Burford ever told about the directive.
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