The first Ted Olson scandal

It didn't begin with the Clinton-smearing Arkansas Project. The solicitor general nominee's pattern of ruthlessness and deception began during his tenure in the Reagan administration.

By David Neiwert

May 14, 2001 | Theodore Olson's nomination to be the nation's next solicitor general suddenly appears to be in deep trouble, because of concerns by members of Congress that he was less than forthcoming in his testimony before them.

It's not the first time Olson has faced congressional questions about his candor. In the mid-1980s, he became the focus of an independent counsel's investigation for much the same thing: giving misleading testimony to Congress -- some charged it was perjury -- that was intended to cover up his own misbehavior.

Olson's current problems stem from his failure to be forthcoming before the Senate Judiciary Committee, which is deciding whether to forward his nomination to the larger Senate, when he testified before the committee in early April. As Salon has reported, Olson gave evasive answers about his participation in dirt-digging expeditions into the Arkansas pasts of former President Clinton and his wife, Hillary.

But Olson's troubles with Congress shouldn't surprise anyone who has followed his career, because they bear remarkable similarity to the behavior that got him into hot water more than a decade ago, and almost led to perjury charges.

A careful examination of that episode raises serious questions about not merely his integrity but the legendary legal prowess to which even his critics defer. Indeed, the last time Olson served as a top presidential legal counselor, he left behind a political disaster area strewn with bad legal advice, wrecked careers and lingering scandals.

As assistant attorney general to President Reagan from 1981 to 1983, Olson advised the president to claim executive privilege to block an investigation by congressional Democrats into the scandal-plagued Superfund program, based on assertions that later proved fatally false -- largely because Olson, apparently eager to force a political fight with Congress, failed to double-check key information.

Olson's blunders eventually caused the resignation of Reagan's lightning-rod Environmental Protection Agency administrator, Anne Gorsuch Burford. And those events in turn wound up costing Reagan much of his administration's agenda for reshaping environmental policy.

Afterward, when Congress was investigating both the scandal and apparent attempts to cover it up, Olson gave what a colleague would later call "deliberately evasive" answers when questioned about this advice in testimony before Congress. He earned a full investigation by an independent counsel, for perjury and obstruction of justice, because of this testimony.

Olson was even cited for contempt of court while contesting the I.C. investigation -- a case he took all the way to the Supreme Court, where he lost decisively. However, he eventually avoided prosecution when the independent counsel scrupulously ruled that, though Olson's testimony was "misleading and disingenuous," it did not rise to the level of prosecutable perjury.

There is no small irony in that final outcome. Despite claiming martyrdom for himself at the hands of an abusive independent counsel, Olson later played a leading role in turning that office into a political weapon by aiding and abetting, at seemingly every turn, independent counsel Kenneth Starr's Whitewater/Lewinsky investigation of Bill Clinton.

Ultimately, Olson's complete record reveals a troubling portrait of a counselor willing to risk everything -- including the credibility of his president, and his political colleagues' careers -- in pursuit of a highly charged partisan agenda that seems more calculated to bolster his own reputation than the cause of the office he serves, and a lawyer who makes ironclad assertions that later turn out to be false and misleading. It is a record that raises serious questions about his judgment and competence -- as well as demonstrating the capacity for evasion and dissembling now being questioned in the Senate.

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