Ted Olson Interview 2

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ORAL HISTORY OF THEODORE B. OLSON, ESQ.
Second Interview
November 2, 2015
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Elizabeth Beske, and the
interviewee is Ted Olson. The interview took place at Gibson, Dunn & Crutcher on Monday,
November 2, 2015. This is the second interview.
MS. BESKE: Last time, we ended with the Detroit convention in July 1980, and you told
me about the backroom negotiations between the Reagan camp and Ford’s
people, and you mentioned that the appearance was that Ford was asking for
a little bit too much, so that idea was shelved. I guess I want to start with —
MR. OLSON: I’m sorry to interrupt. I want to make clear that I don’t know that he was
asking for too much. That was the popular story at the time. I wasn’t
personally privy to that.
MS. BESKE: Okay. So I know you were doing a lot of background research on the
procedures, if it were to work, would we have this problem or that problem.
I take it from what you just said that you weren’t part of the back-room
discussion about it?
MR. OLSON: I was not in the room when all those conversations took place. I think my
partner, William French Smith, was, but not me.
MS. BESKE: So after that deal went by the wayside, did you play any role in the selection
of George H.W. Bush, which was something of a quick surprise?
MR. OLSON: I was not involved in that. I may have known certainly before the rest of the
world did, but I was not involved in any of those discussions.
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MS. BESKE: So the election happened. Were you at any of the debates, like the Nassau
debate?
MR. OLSON: No. I watched those on television, but I was not present at any of them.
MS. BESKE: Shortly after the election, your partner William French Smith was appointed
Attorney General and you were nominated to Acting Attorney General for
the Office of Legal Counsel, and Ken Starr, who is from the D.C. office, was
brought on as William French Smith’s Chief of Staff. Did you know Ken
prior to that?
MR. OLSON: Yes. He had worked for us for a number of years. I had met Ken in
connection with his hiring a few years before. He had clerked on the
United States Supreme Court for Chief Justice Warren Burger. I think he had
worked, as I recall, in the Los Angeles office for some part of the early stage
of his career and when we opened our Washington office, which was in
1977, we brought in a lateral partner by the name of Gerry Parsky, who had
been an Assistant Secretary of Treasury, then when he was elected to the
firm, the process took place by which we opened up this office in
Washington, two of the partners from Los Angeles that I can remember –
Los Angeles and/or Orange County – Peter Baumbusch and John Olson,
were sent to help populate the Washington office, and I think quite early on,
Ken Starr, who was an associate at that point, also was sent to the
Washington, D.C. office. He was elected partner in the discussions that took
place at the end of 1980. I can’t remember when we actually voted on
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partners in those days, but it was probably the end of November or something
like that.
We always had a dinner for the new partners in January of the year after
they were elected, so there was a dinner at a restaurant (Perino’s) in
Los Angeles. That same day, President Reagan had announced his cabinet,
including that William French Smith was going to be Attorney General. After
the election, Bill Smith was designated by Ronald Reagan to head up the
team to select the cabinet. I don’t know if it was the transition team, but the
team to select the cabinet, and those meetings took place in our offices in
Los Angeles, so it was a big deal because the President-elect and various
dignitaries were coming to our office in Los Angeles and having these
meetings behind closed doors to select the cabinet, and Bill Smith was in
charge of those meetings, and I guess when he stepped out of the room or
something, they decided to designate him as the prospective
Attorney General. Then when he went back to Washington for the
confirmation hearings, Ken Starr became a part of that team. The night of
the dinner at Perino’s, Bill Smith had been mentioned at the press conference
that day, in Washington, as the nominee to be Attorney General, so it was
very exciting for our firm to have our partner be selected to be
Attorney General. It must have been early January, but the confirmation
hearings had not taken place, but somehow Ken was helping Bill back there,
and the two of them arrived in Los Angeles for the dinner at 6:00 or 7:00.
We were all seated. I was emcee of the dinner, as I recall.
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MS. BESKE: This was in Los Angeles?
MR. OLSON: It was in Los Angeles. For some reason I had been asked to be the master of
ceremonies for the dinner, and I would get up and introduce each of the new
partners. I think we had started that process and in walks Bill Smith and
Ken Starr and everybody in the room stood up in standing ovation. It was
quite cute because I don’t know whether it was Bill Smith or me that said it,
but one of us said, “Isn’t that great that we would have a standing ovation for
our new partner Ken Starr” (laughter), when it was clear that everyone was
applauding Bill Smith. Ken’s title became counsellor to the Attorney
General.
MS. BESKE: What was the interval after Bill Smith was nominated that he brought Ken
on?
MR. OLSON: Ken was in the Washington office, and Bill was back here doing whatever
was taking place with respect to the selection of the cabinet and so forth, so
he was already somewhat attached to Bill Smith, and in that he was helping
Bill navigate Washington, D.C.
I should have mentioned that I was asked in December to draft a blind
trust for President and Mrs. Reagan. This is what happens when you become
President. You put your assets into some sort of holding trust so that you
won’t be plagued by conflicts of interest. President Reagan had had
someone, an investment advisor or someone, amass all this information, and I
was asked to draft the blind trust, and I didn’t know much about drafting
trusts, blind trusts, or any kind of trusts because I was a litigator, but the
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Office of Government Ethics, I think it was, here in Washington helped me
with some forms and some people in the trust department of our firm helped
me. I said what I am doing preparing a blind trust. Maybe we should call it a
blind trust because I’m a litigator. At any rate, the Reagans trusted me, both
President and Mrs. Reagan, so I drafted this document. I came back to
Washington sometime in the December/January period and brought the
documents to the Office of Government Ethics, which approved the
instruments that I had drafted, and I took them over to the Reagans’ home in
Los Angeles, and they signed the documents and maybe then I brought them
back. I came to the inauguration, which was January 21, and that was a very
dramatic event because somewhere immediately before President Reagan
took the oath of office, the Iranians released the 52 hostages.
MS. BESKE: That’s right. It was the same day.
MR. OLSON: They were sending a message obviously that they weren’t going to release
these persons until it became apparent that President Reagan was going to
become President so those of us sitting there waiting for all this inauguration
to happen then got the news that as soon as the hostages were actually not
just designated to be released but they were released and there was a big
announcement at the inaugural activities, which are outside. Typically
they’re outside. The sun was shining. It was one of those unusually warm
days in January. It must have been 50+ degrees or something like that. And
then the news came that the hostages had been released, and it was a pretty
emotional thing for America.
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MS. BESKE: What was the reaction?
MR. OLSON: Euphoria and applause. Clapping and standing. I can’t remember all the
details, but I just remember that that was a pretty dramatic event, and then
President Reagan gave a great inaugural address. I’m making a long answer
to your question. Ken was at that point assisting Bill. Bill had been
announced to be the Attorney General. He went through the confirmation
proceedings, and I think Ken Starr and a guy by the name of Bob McConnell
who was then shortly thereafter nominated to be the Assistant Attorney
General in charge of legislative affairs which is the relationship with
Congress. Bob McConnell and Ken Starr, I think were the two principal
people that helped prepare Bill for his confirmation hearings and sat there in
the Senate Judiciary Committee during the process. And then Ken’s title was
Counsellor to the Attorney General. I think that’s the only title he had, but
the function was counsellor, advisor and chief of staff.
MS. BESKE: When did you learn of your appointment?
MR. OLSON: I don’t recall the precise date. Bill had been asking me whether I was
interested in coming to Washington, and I had some reluctance about it
because I was enjoying myself. I was happy to be a partner of the firm. I
had a very good practice. I was doing litigation of all sorts including in the
entertainment industry and First Amendment work and things like that. I was
very happy with my practice. I was living in an area, Palo Verdes Estates,
overlooking the ocean. My kids were happy in school. My wife was happy.
I kept saying I had no interest in uprooting myself and my family and going
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to Washington, and he sort of wouldn’t take no for an answer. About every
three or four days he’d call me up and say have you made up your mind yet,
and I kept saying I told you last time I’ve made up my mind that I don’t want
to do this, and he’d say I think you should think it over some more. I don’t
know, but I think the President and Mrs. Reagan were encouraging him to
convince me to join the Administration. And he kept doing this, coming
back to me, and finally I decided to do some research on the Department of
Justice and looked into the Justice Department’s Office of Legal Counsel. In
conversations we had, it was clear that it was going to be some controversy
connected with appointing Bill Smith as Attorney General because Bill Smith
was close to Ronald Reagan, and he was Ronald Reagan’s lawyer, and some
people had residual resistance to the notion that the Attorney General would
be so close to the President based upon Jack Kennedy and Bobby Kennedy
and then Richard Nixon and his Attorney General Mitchell, who had been his
partner in the law firm that Nixon had joined. And of course we all know
about Watergate. So Bill said the only problem is if you do come back, the
position can’t be Deputy Attorney General or Solicitor General because
they’re already alarmed about the idea of the Attorney General being so close
to the President, and now you’re my partner and so forth. So there was some
discussion about the Civil Division of the Justice Department, and some
discussion about Antitrust, although I wasn’t really an antitrust lawyer.
During the course of my research, I determined that it would be exciting to
be in the Office of Legal Counsel instead of the Civil Division, which would
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have been a management job with all these lawyers and all these cases, and I
would have sat in the office and managed all this litigation. The Office of
Legal Counsel is a purely legal place. It’s a small office, less than
20 lawyers in the office, including the Assistant Attorney General and the
deputy assistants, and highly talented, smart, young people answering all the
government’s ultimate legal questions that in generations before would go to
the Attorney General to write an Attorney General opinion. It had evolved to
the point where it would be the Assistant Attorney General and you had
power under an executive order to write legal opinions that were binding on
the executive branch. And to deal with questions of executive orders and the
government’s position on legal questions that were arising out of legislation
that was pending before Congress and so forth. So I told Bill Smith that I
might come if I could be Assistant Attorney General for the Office of Legal
Counsel.
MS. BESKE: So you pitched it to him.
MR. OLSON: I pitched it to him. I said I’ve thought about it, as you’ve asked me to do
repeatedly, I think I will come if it’s that job. Then he said I’ll get back to
you. So he checked with the White House, and they said no, it’s bad enough
that the President’s lawyer is going to be the Attorney General, but the
President’s lawyer’s lawyer is going to be another partner and so that’s never
going to fly. I remember saying well I’m not coming then because I didn’t
want to just be a manager of litigation back here. So it went on for a couple
days I guess and finally he said, and I don’t know what happened in the
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White House or with the people over there that were running Presidential
personnel, he finally said they’ve agreed. I don’t remember the date when
that occurred, but I almost immediately arranged for my practice, my cases,
to be taken over at the firm by other lawyers. I had been talking to my wife.
We decided she would stay until the kids were out of school in June. This
was January or February. I think it was February because I think, and I
arrived here around the third weekend in February of 1981.
MS. BESKE: Did you get to appoint your deputies?
MR. OLSON: I had the right to appoint my deputies. The principal deputy who had been
acting assistant attorney general was there. His name was Larry Simms, and
I was told you can appoint your deputies, you can remove Simms because
he’s not a career person, but I soon realized what a resource he was.
Extraordinarily smart, and he and I bonded immediately. Over time there was
a lot of pressure on me to get rid of Larry Simms because he was a holdover
from the Carter Administration, although he had been hired during the Ford
Administration when Nino Scalia had the OLC job. But he was just another
hire. And then he moved into the non-career position to become a deputy.
But I resisted removing Larry, and my feeling was and what I said was this is
an office that prepares and issues the best possible legal opinions. We’re not
going to be partisan here. I know the people over in the White House want
Republicans in those jobs, but we’re going to hire the best people that we can
find, and you could order me to fire Larry Simms and I will fire him because
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I’m a member of this Administration, but I’m not going to fire him unless
I’m ordered to fire him. So I didn’t. So they didn’t make me do it.
MS. BESKE: Excellent. So how did you perceive your role? Who was your client from
your perspective?
MR. OLSON: It’s a good question, and it gets asked a lot. You are a member of the
Administration. You serve at the pleasure of the President, so your job is to
work for the President, but your client is also the Presidency, the institution
of the Executive, Article II of the Constitution, and your client is the
Constitution, and your clients are the people of the United States, and in a
sense your client is Congress because Congress has enacted laws that the
Executive is responsible for defending, except where the Congress has
enacted a law that infringes on the power of the Executive. Then the Justice
Department has to defend, or has a responsibility to defend, the Executive.
So you have to see your responsibility is to the law. The best way to serve
the President is to give good solid legal opinions, not to tell people what they
want to hear; and then let people change the law or go find another way
legally to do things, if they wish, but to give reliable, dependable, down the
middle legal opinions. There are constant battles in every administration
over that because you’re sometimes having to tell people “no” when they
would rather have “yes” or vice versa.
MS. BESKE: Happily for me, the written opinions of the Office of Legal Counsel are
published.
MR. OLSON: Some of them.
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MS. BESKE: Oh, is that right? Okay. I looked at a few during the 1981 to 1984 period,
and it seems to me that there’s a mix of garden-variety opinions on this
statute or its applicability here and there, but there seemed to be a real theme
of the legacy of Watergate. There were a lot of issues regarding how much of
the Attorney General’s advice to the President, for example, can be disclosed.
The assertion of the executive privilege, we know of course where that led.
That came up a lot. Did you feel that the split between the Republican
administration and Democratic House loomed large at the time?
MR. OLSON: It was a war. There was a war going on. The Republicans took over the
Senate in 1980. When I was going through my confirmation process that the
chairman of the Judiciary Committee and the majority of the Judiciary
Committee were Republicans in the Senate. But the war was on with the
Democratic House of Representatives and some of the people in those
positions were very feisty people, confrontational. I guess they thought of us
in the same way, but there was a battle going on all the time between the
branches as led by the House of Representatives.
The Office of Legal Counsel, you’re right, when I said not all of them are
published, (a) there was always a delay, and (b) there were things that were
classified that would not be published soon. Any national security,
diplomatic, and that sort of thing, or stuff that the recipient of the opinion,
Secretary of “X”, or the agency felt it was deliberative and didn’t want
released, so we would have to go through a process of getting an okay from
the recipient of the legal opinion to publish it and then when it was
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published, it was published after some kind of delay. And yes, some of it
was contentious, involving congressional committees that were constantly
asking for information, documents, that the Administration thought were
privileged for one reason or another, deliberative, and the perception on the
one hand is that the Administration is not cooperating, and on the other hand,
the Administration thinks that the Congressional committees are just looking
for political headlines and leaks and that sort of thing. That has gone on for
the entire existence of the Republic. It’s going on now with Hillary Clinton’s
email and the like.
MS. BESKE: This might be an opportune time then to get into the underlying facts
surrounding the Superfund Act and the Congressional subcommittee that was
investigating Anne Gorsuch and Rita Lavelle and that sought a whole lot of
documents pertaining to the enforcement and cleanup pursuant to CERCLA.
I’d love some background on that. You suggested an assertion of executive
privilege. Or rather the President.
MR. OLSON: There were multiple committees. The Judiciary Committee, the Energy and
Commerce Committee, and others. The Energy and Commerce Committee
was maybe the most aggressive, powerful Congressional committee in the
House of Representatives at practically any time. John Dingell was chairman
of that committee and he was extraordinarily powerful. He had a massive
staff. He was a very, very powerful man and a very forceful individual, but
also then the Judiciary Committee and I think a couple of other committees
had gone after the Superfund people because they felt that those laws were
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being enforced in a way in which it was helpful politically to representatives
in those districts and they wanted evidence that there was political
manipulation of the enforcement process. The EPA took the position that we
can’t give them documents when they’re open cases. We’re pursuing
polluters. Some of those cases are in federal court and we can’t give up
documents that discuss our strategy, who our expert witnesses are, what our
settlement positions are, because those things will then leak out to the people
that we’re investigating or prosecuting, and we just can’t have that. It’s law
enforcement, and U.S. Attorneys can’t be forced to give up documents when
they’re trying to prosecute crime. So this tension went back and forth and
demands for documents and testimony and ultimately the Assistant Attorney
General for what was then called Land and Natural Resources, a woman by
the name of Carol Dinkins, came to me and said we think that we have to
withhold those documents and the only way we can withhold them is if the
President approves withholding them pursuant to a claim of executive
privilege. Executive privilege is the right of the President not to disclose
internal information if it is necessary to law enforcement, part of the
deliberative process, national security, various different categories. This is
not written in stone. It’s all written in battles that have taken place over
decades and over the centuries of Congress. So there was an executive order
on executive privilege that had gone back several administrations and which
I had to help rewrite because it came from the Office of Legal Counsel.
Before we got there, it had been known as the Nixon Memorandum, and we
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thought that’s a bad name for it (laughter). So we rewrote it, and the
President signed the executive order, so then it became the Reagan
Memorandum, and pursuant to the Reagan Memorandum, any claim of
executive privilege had to be claimed by the President pursuant to advice
from the Attorney General, so I helped prepare, with the approval of
everybody in the Department, the Attorney General, the Deputy Attorney
General, the Assistant Attorney General for Land and Natural Resources and
so on, legal advice to the President saying that he had the right under the
Constitution to claim privilege with respect to the EPA law enforcement
records, and the EPA administrator was instructed to make the President’s
claim of executive privilege, and that’s what led up to this.
MS. BESKE: So the subcommittee voted a contempt of congress resolution against the
EPA administrator, which was ultimately adopted by the full House in
December 1982. At some point in the chronology then, the question was
whether the U.S. Attorney had to bring charges before a grand jury as the
statute prescribed, or whether the U.S. Attorney had discretion not to. There
was a declaratory judgment action filed in the District Court. Did you have
any part of that?
MR. OLSON: I was aware of it. I was involved in the deliberations that went up to it. I
was opposed to that approach. I didn’t think that was a very good idea. I
didn’t think that was going anywhere.
MS. BESKE: And it did not?
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MR. OLSON: It didn’t. It was thrown out right away. It was being pressed by the head of
the Civil Division and we had some deliberations about that. My sense of
separation of powers is exactly what happened that the courts are going to
say this is not our problem. You guys get it resolved. The U.S. Attorney
decided on his own that although the statute said he had to bring the
contempt of congress citation by Congress to the grand jury, he either didn’t
have to do that, because it was a matter of his discretion, no matter what the
statute said, it was a matter of prosecutorial discretion. Either that or he
could bring it to the grand jury and tell them not to indict. I can’t remember
which it was, but the result of that ultimately, and the chronology of it is all
mixed up, is that he decided not to pursue a criminal prosecution against the
EPA administrator. In the meantime, this was such a hot issue in the
newspapers every day that ultimately there were compromises made and the
EPA documents were given to selected members of these committees to look
at them but not have them.
MS. BESKE: En camera review?
MR. OLSON: Yeah, something like that. And then the congressional committees decided
to investigate the Justice Department for advising the President to claim
executive privilege, and that’s where they took us all over there, one at a time
or something, and had us testify and those were extraordinarily contentious
hearings.
MS. BESKE: Your testimony was March 10, 1983. What exactly were they after? What
did they think, what nefarious things were they suspicious of?
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MR. OLSON: I don’t know exactly. They had asked the Justice Department for all of its
internal deliberations about why and how and when to claim executive
privilege. My feeling about that is that they didn’t have any right under any
circumstances to that. It was legal advice, and it was Presidential advice, and
if anything was privileged, that was it. But we ultimately, I was Assistant
Attorney General and there were other people higher up that said we have to
give them these documents, and then that hearing which was very, very
contentious on whether we had given them all of the documents. One of the
things that got them pretty hot was when I said something to the extent that,
“I don’t know, there could be documents anywhere in the Department of
Justice that have something to do with this. I have no idea.” The call was to
provide these documents to the legislative affairs office, and they were
supposed to produce them, but I said something to the effect that there could
be handwritten notes, there could be people scribbling notes in a copy of U.S.
Reports. I don’t know whether you have received all the documents or not.
But they then investigated this for a couple of years with a whole mass of
people. Took testimony from everybody. It went on and on and on and on
and they determined that I had not told the truth during that hearing. The
report came to the conclusion that I had not told the truth about whether we’d
produced all the documents or not and that everybody else in the Department
that was involved in this had somehow committed contempt of Congress or
misleading Congress and so on and so forth. The irony – well, not the irony,
but it was peculiar because I was not under oath in the first place, and it was
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highly questionable whether there was any crime involved in not telling the
truth to Congress, at least in those days, if you weren’t under oath. But I had
testified to the best of my recollections. Shortly after my testimony, they
sent over, as they do, a transcript, and I made certain corrections or revisions
or additions, changes in the testimony that I thought were just clarification
because the temper of the time when you’re over there you don’t necessarily
get everything out, but somehow the fact that I had given them additional
information or altered in some way the testimony was further fuel to the
flames that well, that proves that you were misleading the first time, you
actually changed these things when in fact the persons are always given that
opportunity so that they can make sure that things are correct. So anyway,
after this two-year or so investigation, they came to the conclusion that
virtually all of us were criminals and that an independent counsel should be
appointed to investigate us. And you’ve heard the rest of the story that the
statute as it was written gave the Attorney General very little discretion;
unless there was no reason to investigate further, he had to seek the
appointment of an independent counsel. It was really a nightmare because I
had left the Department. I was gone from the Department for about two
years then, and the idea that someone would be appointed to investigate me
for having committed a crime years earlier in saying that I did not know
whether everything had been produced seemed insane to me. At the end of
this investigation, the Independent Counsel writes this long 100-plus page
report coming to the conclusion that everything I said was literally true. So
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this was somewhat something of a nightmare. It’s not an exaggeration to say
it was a nightmare because it caused lots of uncomfortable days and nights,
which went on from the time that testimony was, March 1983 to when it was
finally over, it was 1987 or 1988. It was after the Supreme Court decision,
that the independent counsel did some further investigation and then wrote a
report and then said that my testimony was true, I hadn’t lied.
MS. BESKE: How much did this intrude on your day-to-day? 1983 testimony, judiciary
committee report, 1985, by which point you are already back in private
practice. What are they asking you for?
MR. OLSON: They’re asking me for documents, they were asking me to testify, they were
asking friends to testify. “Friends,” I mean other people who served with me
in the Department. One example, I went to a basketball game – either a
basketball game or a hockey game – with a guy who had been deputy counsel
to the President, and this guy Bob McConnell who had been head of
Legislative Affairs, and one friend who was in from out of town. This
investigation was going on, and McConnell, who had been named in all of
this, and Dick Houser, who was Deputy Counsel to the President, had been
aware of all of it, and this friend from out of town couldn’t figure out what
the hell was going on, so we complained about it during the hockey or
basketball game, and then when you’re pulled in in front of a – I didn’t go
before a grand jury, but I had to go twice or three times into a room to give
on-the-record, under-oath testimony before the Independent Counsel and her
assistants and FBI agents, you know, like a room full of ten or twelve people.
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They would ask you things like, “Have you ever discussed the Independent
Counsel investigation with anyone? Who? When? Where?” It was hard not
to laugh about it, but it was so excruciatingly painful that we were being
asked under oath what we had said to one another at a basketball game three
years after any of these events and if you had to tell the truth, you had to say
you were stating things that were highly critical of the woman who was
investigating. It was total madness. Stuff like that. So I was trying to
practice law here. It was in this building, and they asked me when I left the
OLC, they had asked me to be partner in charge of this office, so there were
twenty or thirty lawyers here, so I was trying to practice law, build a practice,
and help run this part of our law firm while I was being investigated, briefs
were being filed, submissions were being made, stuff was going on all the
time. During the Congressional Committee investigation and then during the
Independent Counsel Committee investigation, my lawyers talked to
everybody who worked for me at the Office of Legal Counsel, and they
wrote a letter saying we served with him, he would never do anything wrong,
he was a very honorable person, signed by everybody who worked for me in
the Office. Ninety-five percent of them were Democrats. The irony of all
this was that this is the least political place in the Department of Justice
because very famous people like Harold Koh and Cass Sunstein and other
people whose names you probably recognize were working for me and knew
damn well that we hadn’t done anything unethical or illegal. But anyway, it
was extremely time-consuming and it has got to get on your nerves if you’re
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being investigated and you could be indicted any time. At one point she
wanted to put me in jail. They then asked for documents which we thought
were in many respects privileged, like communication between me and my
lawyers and other things, and we figured, well the only way to do this is to
challenge the constitutionality of the whole Independent Counsel process, so
we refused to produce the documents. The motion was to hold us in
contempt for not producing the documents. The defense of that was that the
person asking for the documents is an unconstitutional officer and can’t exist.
The District Judge denied that motion, held us in contempt, and stayed the
contempt decree, which would have caused me to go to jail. Somewhere
during the process, around Christmas time, I don’t know what year, the stay
was still in effect, the D.C. Circuit had not yet ruled, and the statute of
limitations was coming up. There’s a five-year statute of limitations on this,
and my lawyers came to me and said, “She wants you to waive the statute of
limitations, and I said, “no, I’m not going to waive the statute of limitations,”
and they said well she’s going to go to court to have this stay lifted and this
was at Christmas time and you will be sent to jail. I thought what is
happening here? I was an assistant attorney general for the Office of Legal
Counsel, I always conducted myself as straight as I possibly could in that
office, and we were having a constitutional dispute with the Congress over
the executive privilege over constitutional claims. No one robbed any bank,
or no one did anything that would possibly be construed as criminal, at least
from my perspective, and I’m being threatened to go to jail at
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Christmas time. That was just the gilding of the lily, but because I wouldn’t
waive the statute of limitations. There were things like that that happened all
the time, and if you were indicted, if that indictment came down, and I could
never recover my attorneys’ fees, it’s in the statute. You can recover your
attorneys’ fees only if you weren’t indicted, even if you were indicted and
acquitted, or even if you were indicted and they dropped the indictment, if
that happened, all those attorneys’ fees would be unrecoverable.
MS. BESKE: How’d you get out of that one with the imminent “we need you to waive or
else”?
MR. OLSON: The lawyers got me in there and I think my then-wife was with me. They
pounded on me for about two hours saying you just got to do this, you’ve got
to go ahead and do the waiver because we think she’ll do it, she will get an
indictment if she seeks one, and then your career is permanently seriously
affected. The attorneys’ fees issue is also critical, and you just have got to do
it. I had like seven lawyers sitting around the table, so I said I’ve got all
these lawyers, I’ve got to not be so arrogant not to listen to my own lawyers.
MS. BESKE: Who represented you in this?
MR. OLSON: A lawyer by the name of Tom Martin, who was at Jenner & Block, and then
a number of people from his firm, and I’m forever in debt because they were
terrific people. They once in a while had to sort of beat sense into me
because I was so outraged by this whole thing that I was sort of prepared to
fight on every front. One other person affected my decision. During this
period of time, Steve Trott – do you know who he is? Steve Trott had been
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Assistant Attorney General for the Criminal Division. He had been either
U.S. Attorney or Deputy District Attorney in Los Angeles. He came and he
was head of the Criminal Division and then he moved up to Associate
Attorney General, which was the number three person replacing Rudolph
Giuliani. Steve then was nominated to be on the Ninth Circuit. During his
confirmation process, he was living in a little apartment that was connected
to my house in Great Falls. Steve is a very, very smart, level-headed, super
guy, and he was saying, “Ted, you’ve got to give into them on this.”
Anyway, I did.
MS. BESKE: Immediate crisis diverted.
MR. OLSON: Yes.
MS. BESKE: Obviously in response to everything you all opted to file this challenge to the
constitutionality of the Ethics in Government Act provisions authorizing the
Independent Counsel, and how involved were you in formulating the legal
arguments?
MR. OLSON: I respected the fact it had to be their briefs but I thought I knew more about it
than just about anybody because I had been in the Office of Legal Counsel, I
had been studying Constitutional Law, Separation of Powers, all of this stuff,
so I felt I really knew it. It was a team, and I was part of the team that helped
formulate the arguments.
MS. BESKE: D.C. Circuit arguments before a panel constituting of Judge Silberman,
Judge Williams, and then-Judge Ginsburg. Did you think that the arguments
went well? Were you in attendance?
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MR. OLSON: Yes, I was definitely in attendance. I can’t believe that I wouldn’t have been
in attendance. As I sit right here today, I don’t recall very much about that
argument, but the outcome was a couple of months later a decision in our
favor about which we were ecstatic, 2-1, in our favor, written by
Judge Silberman.
MS. BESKE: So then they sought and obtained cert and there was the subsequent Supreme
Court case.
MR. OLSON: You know, I think it was an appeal because I think something that had been
written into the Ethics in Government Act like it is in the Voting Rights Act
and a few other places that like — that the government had – and she was the
government – had an appeal. So anyway, they appealed.
MS. BESKE: Which ultimately resulted in an opinion written by then-Justice Rehnquist
reversing the D.C. Circuit’s opinion over what can be characterized as a
pretty vituperative Scalia dissent. How did that affect your life?
MR. OLSON: First of all, Justice Kennedy had just been appointed.
MS. BESKE: He recused himself.
MR. OLSON: He recused himself because he knew me a little bit, but he knew more than
me, he knew Ed Meese and Michael Deaver, who had been persons in the
Reagan Administration in the Governor’s office in California, and they had
both come here. Meese had been the subject of his own Independent Counsel
investigations. In fact I think he did what I call a hat trick. There were at
different times three independent counsel investigations of Ed Meese.
MS. BESKE: Any including Alexia Morrison?
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MR. OLSON: No. One of them had to do with whether he had given misleading
information in his financial materials when he was nominated to be Attorney
General to follow Bill Smith. I can’t remember what the other ones were
about. They were all crazy. But anyway because of that I think Justice
Kennedy recused himself, and he had just been appointed, and so there was
no urgency for him, but we were disappointed because he had written a
couple opinions on the Ninth Circuit that demonstrated a keen understanding
of separation of powers. Whether we would have gotten his vote or not I
don’t know.
MS. BESKE: Debatable call for recusal on his part. Do you think just because he was so
new?
MR. OLSON: Any Justice on the Supreme Court can recuse themselves for any reason if
they want to. We didn’t really question, and it’s utterly unreviewable
anyway so we didn’t question it. We were disappointed because I thought
our legal arguments were so strong. Bill Rehnquist and Antonin Scalia had
both been heads of the Office of Legal Counsel, so we thought of all people
on that Court, we would have gotten those two. So not only not getting
Rehnquist and then having him write the opinion which brushed aside a lot of
strong legal arguments with the back of his hand, it was a very disappointing
opinion. All we had to do was get four because four to four would have won.
We would have won because we had won in the D.C. Circuit and the fact that
we could only get one out of eight was very, very disappointing. From a
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legal standpoint, very disappointing to me. I thought oh my god now my life
is, I’m still not out from under all of this.
MS. BESKE: Chronologically, when was it that Alexia Morrison filed her report declining
to file?
MR. OLSON: So the decision came down and probably would have been in May or June
that year, 1988.
MS. BESKE: 1988. Yes.
MR. OLSON: So now our objections to the subpoena on constitutional grounds were
overcome. We still had objections on attorney-client privilege and stuff like
that, and whether my own notes could be subpoenaed. So at some point
Steve Trott took me aside. He had finally been confirmed, but it was like
several months, but somewhere during this process he took me aside and said
you’ve got to hire the best white collar criminal defense lawyer in the United
States. These guys representing you from Jenner & Block are fine civil
lawyers, but you’ve got to hire someone that will scare the hell out of Alexia
Morrison, that if anybody can deal with this thing, this person can. Find out
who that is and hire that person. So I did all this research and hired Jim Neal,
a lawyer from Tennessee who was famous for winning one white collar case
against Elvis Presley’s pill doctor and the helicopter case in California.
Anyway Jim Neal was fabulous. He came over here and he was sort of a
“good-ole-country-boy” style lawyer, but really very smart and shrewd. In
his Tennessee accent he said, “Ted, you give them whatever they want. You
put a smile on your face. When they ask you questions, you just tell them
60
everything that you can think of. None of this lawyer stuff and no standing
up for this and none of this only answering the questions they ask. You give
them everything and you be the sweetest little puppy in the world.” I
thought, okay. So then I got back into this room with Alexia Morrison and
her people and FBI agents and so forth asking me questions and gee I was the
nicest person I could possibly think of. I hated them, but I did what Jim Neal
told me, and it went I think all day, something like that. I think that was the
summer after the decision, maybe it was early fall. It was a few months after
that and then some days, weeks, months after that she called I guess, I don’t
remember the call, but someone somehow we were informed the report was
coming out and they were not going to prosecute me. They said I could have
been more forthcoming, but everything I said was the literal truth.
MS. BESKE: So that decision not to prosecute was not the result of a back-and-forth with
Neal and Morrison? It was just at the end of the day she had nothing?
MR. OLSON: Yes.
MS. BESKE: Which was a boon to you because it enabled you to get the attorneys’ fees on
which you were largely successful, right?
MR. OLSON: About two-thirds. I think the bill was from Jenner & Block. Jim Neal said
forget it. So I don’t know how much that was, and Jenner & Block’s bills,
which had been coming in every month, were up to about $1.3 million. The
award was $800,000-and-some. Jenner & Block waived the rest of it, except
for out-of-pocket expenses which were by then, I don’t know what they all
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were but they were $25,000, $30,000, $40,000 worth of expenses that I
wound up paying myself, and that’s fine. Compared to the alternative.
MS. BESKE: I like the irony that you were ultimately successful obtaining attorneys’ fees
in your challenge to the constitutionality of the Ethics in Government Act on
which you did not succeed. There was something you said the other day at a
D.C. Circuit Historical Society event on Morrison v. Olson, you were asked
about Judge Silberman’s opinion, where he said there would be a chilling
effect on bringing good people into government were we to permit this
single-minded, unconstrained-by-budget prosecutor run amok to target
whomever. Judge Wald asked you, hey, Ted, I noticed that you came back to
government and served as solicitor general, so was Silberman wrong? I
thought your answer was interesting and I thought I’d put it on the record.
MR. OLSON: It was either what Silberman said in his opinion or what Scalia said in his
opinion, or both. And what she asked me was it couldn’t have been that bad
because you came back and served in a high position in the Justice
Department as Solicitor General, and my answer was the Independent
Counsel statute had lapsed by then so it can’t have been a deterrent because it
didn’t exist anymore, and I said also that the Solicitor General does not go
over and testify before Congressional committees. I suppose it’s possible
that it’s happened at some time. But the fact is that this statute – the Clinton
Administration found more than anybody else because it keeps getting worse
– all you have to do is sort of allege that somebody should have told you
more or didn’t tell you enough. Under the independent counsel law as it had
62
existed, once the Attorney General was unable to conclude that there was no
reason to investigate further, he or she would have to seek an appointment of
an independent counsel. Once you do that, (a) it takes time to get the person
appointed, (b) then they have to rent an office and they have to get this and
that and the other thing. They have to get security clearances, hire a staff and
put together people, and the people that were investigating in Ken Starr’s
group, I was in a room with them one time there were like 50 people. And of
course they all want something to come of this. They want fruit to come off
of this tree, which fruit means a prosecution.
MS. BESKE: So to an extent they kind of get target fixation.
MR. OLSON: Yes. Attorney General Robert Jackson’s speech, which I have cited often,
points out that you’re told find something that this person did wrong, and you
can find that on anybody. They’ve been guilty of speeding, they’ve lied
about it to their wife, their tax returns or this and they’ve given money to
their girlfriend. There’s a million things on people if you really want to
investigate everything about their life, nobody’s clean. So if you give a
person a license to prosecute this person and if they don’t find anything then
people are going to say well why didn’t you find that. So there’s this
overwhelming impetus to prosecute. And if the trigger for the investigation
is impossibly low, and you can be your own generator of headlines.
MS. BESKE: And you can enlarge your mandate on a dime and consistently do.
MR. OLSON: And this is what happened with the Clinton stuff, and that’s what happened
with Lawrence Walsh. I went through this again with Ronald Reagan.
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MS. BESKE: I definitely want to ask you about that next time. Knowing that our time is
short, did you always know that you were going to stay for Reagan’s first
term and then OLC? What prompted you in 1984 to decide to move back to
private practice?
MR. OLSON: Two things. One, I never intended to stay more than, I figured, between two
and four years, (a) I figured that was about right, (b) I was making a lot less
and my kids were getting closer and closer to college, so the income disparity
was quite significant. But I could see in the spring and summer of 1983 and
coming into 1984 that the angry members of Congress and staff were going
to try to get us. There wasn’t any question, and they didn’t care what they
did to do this. So that plus the fact that the timing was coming up anyway,
and I decided to get out of there, and I finished I think on October 31. I still
loved the job, and I loved the people, but there was constant pressure and this
other pressure on top of it, it’s enough pressure writing legal opinions when
somebody’s mad at you about your legal opinion, including the White House,
and you’re having to take tough positions and you can’t know for sure that
you’re right. You’re doing the best you can, but nobody can decide a
constitutional question involving separation of powers with any degree of
certainty that your answer is right. And someone will say to you well you
admit it’s close why can’t it come out the other way. There’s a lot of
pressure. And then a tremendous number of hours and so forth so there’s
that, but the intense pressure that this was coming along which had really
64
nothing to do with the job in my opinion, I was ready to get out of there
because of that.
MS. BESKE: Did you feel that it was going to come to that at that point?
MR. OLSON: I was very fearful because we had already written an opinion stating that the
independent counsel statute was unconstitutional. That was in 1982 or so,
and we could see all this coming. They had appointed an independent
counsel to look into Ray Donovan who was Secretary of Labor. He was
alleged to have had some connection – he was from New Jersey, so you can
imagine what the hell that was about. And then there was this and there was
that and you could sort of see this coming. I didn’t believe for a second, I
didn’t believe in my heart that it could lead to that because as I said, when
this happened to me, I checked out the longest independent counsel
investigation prior to that had lasted five months or something but the
difference with my case was that all of the witnesses were right there. I was
testifying in public, there must have been 200 people in the room, plus there
was a court reporter, plus there were all these members of congress, so there
couldn’t have been any dispute about what I said. And then was it true or
not, I figure if anybody can investigate this, plus the congressional committee
had done a long investigation plus the attorney general’s people in order to
decide whether to appoint an independent counsel had done a separate
investigation, so there had been two investigations, lots of testimony, all of
us had testified, and I hadn’t been under oath. So I was just testifying over
there so it couldn’t be perjury. What was the offense? So I figured this will
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be over in a couple of months. The first thing that happened is that the
person who was appointed independent counsel resigned because he was
someone from Covington I think, and he felt he had a conflict of interest
because someone in his firm had been consulted in some respect about this
whole EPA stuff. So he resigned and then his deputy, Alexia Morrison, was
appointed. The day the IC was appointed, I had argued one case in the
Supreme Court when I was Assistant Attorney General – and I wanted to
create an appellate practice which was hard enough with all this other stuff
going on – but I had gotten a big case from Aetna that was an unbelievable
long shot. It was a challenge to punitive damages and for a variety of reasons
we thought we’d never get the Supreme Court to take the case, and if we did
get the Supreme Court to take the case we wouldn’t possibly win, but we got
the Supreme Court to take the case, and we argued the case on theories about
the constitutionality of punitive damages. We argued based on due process,
excessive fines under the Eighth Amendment and Contract Clause and so
forth, and so that morning, the morning – I got a call from the clerk saying a
decision had come down in Aetna v. Lavoie case and that I had won this case,
somebody recused themselves there too, I think it was 8-0. And we had won
on a basis we had found that the Chief Justice of the Alabama Supreme Court
should have recused himself because he had been pursuing without telling
anybody punitive damage claims and so when he decided this case, which
changed the law of punitive damages, he opened the way for himself to
recover punitive damages in a couple of cases where he was personally
66
involved. We found that after we filed the cert petition. It was unbelievable.
So the Supreme Court of the United States decided in our favor 8-0 a
violation of due process that we had a right to a neutral magistrate but then
said that our challenge on punitive damages raised important questions which
meant open the door to future challenges. So we were ecstatic, and then
fifteen minutes after I got that decision, I got a call from the clerk for Judge
MacKinnon, who was head of the Independent Counsel panel.
MS. BESKE: The three-judge panel?
MR. OLSON: Yes. And she said, “Can you come out to the Judge’s home? Can you come
see the Judge?” And I thought, oh this is not good. But I didn’t know and I
said well I’ll be right over, because I was going to go over to court, and she
said well the judge is not at court, the judge is at home. He lives in Potomac,
Maryland, because he has been ill. He had phlebitis or something with a leg
infection or something like that so can you go out to his house. I was
thinking I’m represented by counsel and he’s asking me to come out to his
house. I thought I couldn’t believe that this was happening. And I’m
supposed to be talking to my client about winning this fabulous case and I
had to tell Larry Simms, who by then I brought over here, I can’t tell you
why, but I have to leave. So I drove up to Potomac, Maryland, and I thought,
I’m not even supposed to, this is an ex parte thing from the judge to the party,
not the lawyer, so what am I doing here. And I didn’t even know for sure I
should even go but I was afraid not to go. I got out there and his wife met me
at the door and she said the judge is upstairs in his bed. She said but before
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you go up, it’s his birthday today, would you sign – it was his 80th birthday
or something like that – and she said will you sign the guest book (laughter),
and I thought I must be dreaming. I’m not even supposed to be here.
Something weird is happening. I’m not sure I’m supposed to be here, it’s an
ex parte thing, and now I have to sign a guest book. And I’ve got to say
something nice about the judge and I don’t know what he’s going to say to
me and I have to put my name in there.
MS. BESKE: On this date.
MR. OLSON: And the date (laughter). So I did. I wrote something nice to the judge and
went upstairs. I sat down next to him and he started talking to me
conversationally about various different things and he was rambling. I don’t
know whether it was medication. He was an elderly gentleman by this time,
and he had been a highly respected judge. I had to be on my best behavior. I
couldn’t hurry him and so forth. He started telling me stories about Stanford
and something about this and something about that and I’m looking and I
can’t imagine what in the world is going on or where he’s going to go, and
then he finally said, well you know on this IC thing, I’m going to have to
appoint an Independent Counsel, and I thought, ‘Oh Jesus.’ My heart sank
because I thought after all this was going to be the end of it, but then he said
the person that I’m going to appoint is so-and-so, and he’s with such-andsuch
a law firm.
MS. BESKE: That’s the Covington guy?
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MR. OLSON: Yes, Jim McKay. And he told me that there had been something involving,
somebody had consulted one of the partners in his firm about something
having to do with this, and he said I don’t think that’s any basis for
disqualification, but I thought I’d check with you, and I’m thinking this
should be brought up with my lawyers. I should not be having to make this
decision, sitting with the judge, in his bedroom, and he’s asking me to waive
a possible conflict of interest. And I have to decide right now. Am I going
to say well no, judge, I refuse to accept this partner of Covington. I think he
named the firm, and anger the judge, anger the guy, and so on and so forth,
and I said, no judge, I’m sure whatever you do will be fair. So I had to agree
to accept the appointment of the person that he had selected who thought he
had some sort of potential conflict of interest and then go back down, say
goodbye to his wife, drive back to my office, and realize that my world had
changed. My life had changed.
MS. BESKE: That’s surreal. That is an unbelievable story.
MR. OLSON: So then one month or so into it when I’m thinking it’s going to be over pretty
soon, I get a call and McKay has resigned because he really did think it was a
conflict of interest and Alexia Morrison has been appointed. I don’t know
anything about Alexia Morrison, but I thought, Jesus I thought we were about
done here and now we’re starting over again. Anyway.
MS. BESKE: Unbelievable. Well this is a good time to stop today.