Friday, Jul 25, 2008
Ted Olson's difficulties had just begun, though. Already, the House Judiciary Committee -- chaired by Rep. Peter Rodino Jr., D-N.J. -- had signaled it intended to inquire into Justice's handling of the Superfund documents.
Rodino wrote in late February and early March to Attorney General French Smith seeking documents pertaining to OLC's advice to the president on this assertion of executive privilege. Olson participated in drafting responses to the two letters. Then, on March 10, 1983, Olson appeared before the Subcommittee on Monopolies and Commercial Law of the House Judiciary Committee, and presented testimony that would continue to haunt him for another four years.
The hearing was often contentious and partisan in nature, with congressional inquisitors frequently interrupting Olson and snide remarks punctuating many of the exchanges. At a key point, Rep. John Seiberling, D-Ohio, questioned 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 "Clintonian" -- evasive and misleading, though technically true. Olson had been told that EPA officials were willing, conditionally at least, to turn over the documents -- but by his own staff, not by anyone from EPA. Olson deputy Larry Simms, who was present during the testimony, later testified that he couldn't understand why Olson responded to Seiberling's question in a way suggesting he had never been told about EPA officials' willingness to compromise on the documents.
There were other evasions as well: Rep. Jack Brooks, D-Texas, asked Olson about unanimity within the executive branch concerning the privilege claim. Olson responded that everyone involved "agreed that this was a proper occasion for the invocation of the privilege," adding: "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."
This was again a masterful display of disingenuousness. "Other people" -- a reference, apparently, to Burford and other EPA officials -- didn't ever change their minds. As Burford later observed: "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 ... 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."
Rodino asked Olson whether Justice had provided all the documents regarding the advice to President Reagan on the executive-privilege claim, and was not withholding anything. 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 include 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."
The most troubling aspect of this testimony was Olson's apparent suggestion that the only documents not yet turned over were primarily "scraps of paper" and the like, while omitting any mention of his Oct. 25 memo to President Reagan, which had not yet been produced (it eventually was, two weeks later). That memo, in fact, was probably the definitive document in the framework of Rodino's request.
As the day wore on, the exchanges grew more contentious. At one point, Seiberling suggested that Reagan should "get another lawyer," and he urged both Olson and Attorney General William French Smith to resign. Olson's combativeness was understandable, but even his associates at the Justice Department were troubled by his lack of candor.
One of Olson's aides who attended, Laurel Pyke Malson, afterward said she viewed Olson's testimony as "deliberately evasive." She later clarified this observation: "Mr. Olson appeared to construe questions as narrowly as they reasonably could be interpreted."
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