Ted Olson Interview 3

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ORAL HISTORY OF THEODORE B. OLSON, ESQ.
Third Interview
December 14, 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,
December 14, 2015. This is the third interview.
MS. BESKE: I want to start with the Walsh investigation and your representation of
President Ronald Reagan in connection with that. It sounds to me like it sort
of came to a head. You had a pre-taped deposition at one point, but then
Walsh wanted to bring him in for live questioning in 1992.
MR. OLSON: At some point Walsh and his people wanted – it was the Poindexter case. He
was prosecuting Poindexter criminally, and Poindexter wanted to depose
President Reagan, and we had back-and-forth negotiations which culminated,
as I recall it, in sessions with Judge Harold Greene, and we worked out a
compromise whereby President Reagan would testify under oath in a
deposition, only it would be in court in the Federal District Court in
Los Angeles, and a judge would preside so that if there were objections to
questions, the judge could rule on them right then and there, but it would be
sealed. The courtroom would be sealed. The Poindexter lawyers and
Walsh’s lawyers, and I were permitted to be there and to object to questions.
The whole courtroom was full of CIA, State Department, Defense
Department, White House, Secret Service. I can’t tell you how many people
were in the courtroom, but it was sealed, and President Reagan testified for
two days.
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MS. BESKE: That was before Judge Greene?
MR. OLSON: No. It was before a judge in the Central District of California.
MS. BESKE: So that was the taped deposition then?
MR. OLSON: It was videotaped.
MS. BESKE: There was another day, July 24, 1992, that the President came in for a single
day of questioning before Walsh. Is that right?
MR. OLSON: Right. At some point the Poindexter case videotape was broadcast or made
available to the public. This other event that you just referred to–Walsh was
sort of nearing the conclusion, I think, of his investigation. I haven’t got a
calendar, and I haven’t gone back to check these dates, but he said that he
wanted to and had to have a face-to-face with President Reagan whereby he
asked these questions that he and his staff felt that they had to have answers
personally. So it was in President Reagan’s offices in Century City. I was
there. President Reagan was there. I can’t recall whether anyone else on my
team was present. Judge Walsh had a number of people there. It seemed like
quite a few, half a dozen at least, people there as I remember, and then he
spent the whole day asking questions.
MS. BESKE: At that point, though it wasn’t public knowledge, the President probably had
the beginnings of the Alzheimer’s disease?
MR. OLSON: I can’t say that because I’m not a doctor. There were things that the
President didn’t remember, and the same thing happened in the Poindexter
videotape deposition in court. President Reagan was President for eight
years, there were a zillion things that happened every single day, and a lot of
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the questions that they were asking were on such a such date and they’d ask
him to read a document and then ask him questions about it. I had strongly
advised the President, as any lawyer would, “Don’t answer questions if you
don’t know the answer to them. Say you don’t know.” Especially in the
Poindexter context, it involved a criminal proceeding, and President Reagan
had a very affable streak in his nature, and he wanted to please people who
were asking him questions, and I didn’t want him to think, because of the
way the question was phrased, lawyers can do this, that the answer was as it
was being suggested in the question, but that if he wasn’t sure, to say he did
not know. That bothered him, but he did that frequently in both of these
occasions. It’s entirely possible that his memory was being affected by the
condition of his mind at that time. I didn’t want at the time to have a position
to say what it was, whether he was being asked things, probably some of both
possibly. At the end of the day, Judge Walsh, I think in private to me, or
maybe with his staff present, I don’t know, commented that he was
somewhat taken back that the President didn’t remember a lot of things that
he thought a President should have remembered.
I’ll tell you a footnote to this that we were dealing with binder after binder
after binder of highly-classified documents so that my copies of those
documents had been brought to Los Angeles through FBI-secured channels
so that they arrived there, and President Reagan and I both had security
clearances, but they were in a locked room, and we were very careful about
how we took care of them. It turned out later, and I don’t know personally –
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have you ever heard this story? The Independent Counsel took his briefcase,
or big bag, full of these documents and checked them onto the airplane as
checked luggage at LAX, and they didn’t get to their destination.
MS. BESKE: That is terrifying.
MR. OLSON: Some portions of this were reported sometime later in the press. I don’t
know whether those documents were ever recovered. When I learned about
this, I thought this is really ironic, that this massive fortress, this battalion of
lawyers, all of whom had security clearances, being run by a former federal
district judge and a man who had practiced law for god knows how many
years and who had been deputy attorney general or something like that,
checked highly classified – these were top secret-plus documents – at the
airport on a commercial airline flight and then lost them.
MS. BESKE: How long after the fact did you learn about that?
MR. OLSON: I don’t remember. When I did learn about it, it was still secret. Someone
told me, and of course I would have loved to have said something to
somebody, but I don’t do that. But I do believe it turned up later in the
public domain in some way, and I think that they made some sort of – the
Justice Department may have had to make some sort of deal or something
because these are substantial penalties associated with not taking care of
classified information.
MS. BESKE: That is fascinating. You had received some assurances that the President
would not be subject to any kind of indictment or any kind of criminal action,
hadn’t you?
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MR. OLSON: Not until the end.
MS. BESKE: Several days later, after this July 24, 1992 day in which the President met
with Walsh and his people, The Washington Post published a story saying
Walsh may indict Reagan. Was that surprising to you at that point?
MR. OLSON: Walsh and his people – I can’t remember details or what kind of
conversations or how much of it was innuendo or suggestion or veiled threats
– were holding that over us. Not just the President, but they were making
noises about Mrs. Reagan, which was totally absurd and very upsetting to
me, and of course to her and to President Reagan. I felt that it was
outrageous to suggest that because in my judgment, there was not a sliver of
a basis for doing something like that, and my reaction was this is outrageous,
heavy-handed, Independent Counsel, Special Prosecutor-type stuff. I don’t
remember the chronology, but I do remember that there were headlines at
various different times, which were very upsetting not just to me but to the
Reagans.
MS. BESKE: One of the contemporaneous articles said that Nancy Reagan called you in
tears. It must have been tremendously upsetting for her.
MR. OLSON: That wouldn’t have come from me, I don’t know where it came from, but
yes. It did happen.
MS. BESKE: In 1992, shortly on the heels of this day and this interchange with Walsh,
President Reagan went to the convention in Houston. Senior President Bush
was up for reelection, and President Reagan gave a speech that really rallied
the faithful. Were you there?
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MR. OLSON: Yes. I was General Counsel to the Platform Committee, I think, and so I was
there, and so I was on the floor of the convention when he gave that speech.
MS. BESKE: Were you nervous or excited?
MR. OLSON: I remember being blown away by how good that speech was. I can’t
remember very much about the speech, but I remember standing there on the
floor. Usually people are way up in the seats. If you’ve been to one of these
conventions, the only place in the world where you can’t hear or see what’s
going on is to be there in the room because it’s so incredibly noisy. I’ve been
to three or four of them, and it is impossible. If you want to see what’s going
on, if anyone ever did really want to see what’s going on at the convention,
watch it on television. But when he spoke, it was quiet. You could hear
what he was saying.
MS. BESKE: He spoke for about 36 minutes. I’ve watched it twice. Very eloquent, didn’t
miss a beat, and had that memorable Thomas Jefferson line that brought
down the house.
MR. OLSON: “I wasn’t even in the same precinct,” or something like that.
MS. BESKE: He used the Lloyd Bentsen line. “I knew Thomas Jefferson. Thomas
Jefferson was a friend of mine.”
MR. OLSON: At one of the earlier conventions they were teasing him about – maybe it was
1984, where they were teasing him about his age or people were making a
fuss about his age, and there was something about Thomas Jefferson, and he
said something about, “We didn’t even live in the same state” [laughter].
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MS. BESKE: Walsh published his final report in January 1994, and I’ve read that you were
highly critical of Walsh’s conclusion that Reagan, while not breaking the
law, had acquiesced in the cover up.
MR. OLSON: I thought it was outrageous. Before that, when we did finally learn that they
were not going to indict, the prosecutors don’t indict, grand juries indict, but
we say prosecutors indict. When I learned that he was not going to be
seeking an indictment, we did speak to members of the press to get that out,
and I think the first definitive statement of that was on the front page, I can
see it today, I think it was on the left front column of The New York Timeson
the front page. But yes, he then produced this report. One of the things that I
always thought was an outrageous thing about independent counsels and
special prosecutors, if a normal prosecutor determines not to indict someone,
they say it’s done. They don’t start commenting he was probably guilty, or
he should have been prosecuted or this that or the other thing because you
can do great damage to someone that you’re investigating by suggesting
things like that, and the prosecutor’s job, in my judgment, and I go back to an
Attorney General Robert Jackson speech that he gave to United States
Attorneys years and years ago is that you have great power and you have to
use it wisely and carefully and if you have the evidence, you proceed to
prosecute, if you don’t, you shut up, close up your tent. So it was extremely,
in my opinion, irresponsible for that kind of language to appear in the report.
I think I had a quote that I spent a half an hour or two coming up with, that it
was a $43 million self-administered pat on the back or something like that.
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MS. BESKE: That’s good. So how much post-1994 contact did you have with the
Reagans?
MR. OLSON: A fair amount. During this thing, I was out there a lot because I read all of
his diaries, which then very few other people had seen, I think the
independent counsel had seen some of it and other people had seen some of
it, but I read all of his diaries in order to properly defend him. And I also
read, or tried to read, all of Mrs. Reagan’s diaries. I didn’t want to have them
in my possession, so I read President Reagan’s diary in the library there and
her diaries out at the residence. I didn’t want anything to happen, so I read
them in her house. I’d go out there and read them on a trip to Los Angeles,
and I couldn’t make very fast progress because her handwriting is very, very
difficult to read. Even after hours and hours and hours of reading her diary,
it was very hard to read. I’m drifting now, but I had lots of contact with
them. So you’re asking about after 1994. I would see them from time to
time on various different occasions when I was in California. I didn’t see
him too much. I can’t recall the specific occasions. I subsequently went on
the Board of the Reagan Foundation, so I now see Mrs. Reagan once in a
while in connection with board meetings, and I try to schedule lunch with her
when I’m out there, but I haven’t done that in 18 months. I was at the debate
at the Reagan Library in September, but she didn’t come. So a little bit, but
not too much.
MS. BESKE: I read in the American Spectator, you wrote sort of a eulogy, the legacy of
President Reagan after he passed away.
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MR. OLSON: I had forgotten that I did that.
MS. BESKE: It was good. All about the hope and the optimism and the infectious belief in
our better selves that he brought at a time in our country when we needed it.
Double-digit inflation, unemployment, the hostage crisis.
MR. OLSON: I forgot that I wrote that, but I now remember that. I can’t remember my
words, but I hope it reads well today after all these years.
MS. BESKE: It reads well, and it almost makes one clamor for a new Reagan, someone
who can bring that kind of gifted optimism.
It’s hard for me to figure out a good chronology, so I’m going to kind of
go topically. So big Gibson, Dunn cases in the 1990s, you had a few of
those. You represented Jonathan Pollard. It looks like you didn’t come in at
the trial court level but came in after someone had failed to pursue a direct
appeal?
MR. OLSON: I was not involved in the case in the early stages. I’m not a criminal lawyer,
except for this appellate stuff from time to time. He was represented by a
very able lawyer, they made a plea deal. He pleaded guilty, and I don’t think
there was an appeal. The part of the plea deal was that they would not seek a
life sentence. Then the allocution at sentencing was such that basically it
sounded like they wanted a life sentence, which they got. I think there was
not an appeal. And then sometime after that there was one of these federal
habeas corpus things where you seek collaterally to overturn the judgment.
There’s higher standards of proof and things like that, so that had been filed,
and it had been briefed, except for the last brief, the reply brief. I was
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contacted by Leonard Garment. Why, I don’t know. They came to me and
asked me whether I would be willing to represent Pollard in this proceeding,
and I ultimately, after some considerable discussion, I went out and saw him.
He was at the maximum security prison in Marion, Illinois. So I went out to
see him to make sure he wanted me to represent him, and as a result of that, I
did agree to do it. I wrote the reply brief, which I think is one of the best
briefs I’ve ever written in the Court of Appeals. I’ve had people other than
myself tell me that, so maybe if I read it now I wouldn’t think that, but I
worked hard because I felt that it was a really big challenge. He had pleaded
guilty. We couldn’t, and I had this conversation with him, that we can’t deny
that you committed espionage, we’ll get nowhere if we start off on that basis.
We have to put it on the government that the government, no matter how bad
you are, how bad anybody thinks you are, what you did, a government must
keep its word. That’s essential to all of our liberty.
MS. BESKE: Was this promise not to pursue the life sentence evident in any written
agreement?
MR. OLSON: Yes. That was part of the plea agreement. I can’t remember the words, but
it was clearly something they had agreed to.
MS. BESKE: And the government’s position I presume is that Judge Robinson had
discretion to depart, and they hadn’t “wink wink?”
MR. OLSON: Yes. The allocution and the argument was they called him a traitor. Now
there is a death penalty for treason in the Constitution. He had not
committed treason. He had committed espionage, which is a different
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offense. So he wasn’t even prosecuted for treason. The language that they
used was so powerful that that’s the sentence they got, and I guess their
defense was well we didn’t ask for a life sentence. We just told the judge
what the facts were, and I argued that if you look at this, you know what’s
going on here. And it was a three-judge panel, and it was Judges Williams,
Ginsburg, and Silberman.
MS. BESKE: Douglas H. Ginsburg?
MR. OLSON: No. It was Ruth. RBG. And I got one vote, Steve Williams.
MS. BESKE: And he said, “This is a fundamental miscarriage of justice.” And I assume it
was to renege on this written agreement.
MR. OLSON: Yes.
MS. BESKE: That’s very interesting.
MR. OLSON: Judge Silberman, who wrote the opinion, said it was really close, and if the
burden of proof wasn’t sufficiently high, elevated – I haven’t read the
opinion in how many years is it, 20 years – but the gist of it was that he very
much saw what I was arguing, but he couldn’t go there because it was habeas
and that elevated standard, federal habeas.
MS. BESKE: He recently was paroled.
MR. OLSON: I want to say one more thing. I’m pretty sure it was the same panel that
handled In Re Sealed Case.
MS. BESKE: That’s interesting. I think you’re right.
MR. OLSON: Because that was Williams and Silberman and Ginsburg, she was dissenting.
The Jewish community, which was very much – I say the Jewish community,
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that’s lots of communities so I don’t mean to make it sound monolithic, but
the people who were really involved in this, which included major Jewish
organizations that I met with and dealt with and talked to and so forth –
wanted to produce highly inflammatory articles and Op-Ed pieces that it was
the Jewish judges who voted against him.
MS. BESKE: Interesting.
MR. OLSON: And it was this concern about divided loyalties and all this stuff. They bent
over backwards against him because of dual loyalty and this, that, and the
other. I said we cannot do this. We must not do this. I don’t know if I got
everybody to go away from that kind of thing, but I feel very strongly it’s a
lawyer’s responsibility to defend the system, and that that kind of charge was
totally outrageous and unfounded. I felt that they made their decision on the
basis of what they thought the law was. I don’t have any doubt about that.
I have one more thing. I don’t know if I mentioned that we were involved
in raising money and trying to do public relations with respect to Pollard, and
I don’t know whether during this part, probably after that when I sought a
commutation of sentence, that we had a rally at a synagogue in New York
City, and we had a massive crowd. It was on a Saturday or Sunday, maybe it
was a Sunday, crowded out to the streets, and speakers at that rally included
me, Father Drinan, Pat Robertson, and Elie Wiesel. It was an unbelievable
experience for me to stand in a synagogue with a prominent priest, a
prominent evangelical, and Elie Wiesel. It was incredible. So yes, he was
just recently paroled.
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MS. BESKE: Do you have any contact with him?
MR. OLSON: No. I haven’t had any contact with him a long time. Various different times
since then I was asked to get back involved in it, and I thought I’ve done that
and I’ve done the best I could. I tried to get relief in the legal system, and
then I tried to get relief by clemency power, and I didn’t know what else I
could do.
MS. BESKE: How about the Hopwood case, Cheryl Hopwood and her challenge to the
admissions policies at the University of Texas. That was before the Fifth
Circuit, and at that time the University of Texas’s policy overtly considered
race, did it not?
MR. OLSON: I can’t remember exactly what the policy was, but I felt we had a strong case,
that Hopwood and two or three others had been denied admission because
they did not have the qualifications to get special treatment in this program,
and I believe we won in the Fifth Circuit.
MS. BESKE: You did, and then the Supreme Court denied cert. Then it came back to
revisit that in Grutter v. Bollinger, the issue, with respect to a different state
obviously. And now this year they’re revisiting it again in the Fisher case.
MR. OLSON: Actually it’s even more than that. What year was the Hopwood one?
MS. BESKE: Hopwood was 1996. That was the Fifth Circuit opinion.
MR. OLSON: So then it rumbled around, and we won, then we had some issues. I think
then it went back to a district judge who was really, really hostile to
Cheryl Hopwood and her colleagues and very hostile to us. Wrote a nasty,
nasty opinion about our application for legal fees. We had won, but the
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judge did not like what and who we were. Far away lawyers and charging all
these fees. But then it was the Grutter and Gratz case in 2003, and then not a
few years after that it was the Public School Systems of Louisville, Kentucky
and Seattle, Washington were before the court. Then the Fisher case first
time around came to the Supreme Court. The University of Michigan’s case
they passed a constitutional provision, and now the Fisher case was just
argued last week.
MS. BESKE: What do you think will ultimately come to pass? You don’t have a role in
the Fisher case, do you?
MR. OLSON: No. Well, not me, but my law firm down in Dallas wanted to file a brief in
support of the University of Texas, which I didn’t agree with. I don’t agree
with what Texas has done. I sort of believe that the right outcome is that
they are violating the Constitution again, but I stayed out of it because my
colleagues down there in Dallas wanted to file a brief in support, and they’re
Texans and supporting it, so I thought just stay out of it. So “we” do have a
brief supporting the University of Texas. I wouldn’t want to say this in any
kind of public way as long as the case is pending, but if I had to file a brief, I
probably would have filed it on the other side.
MS. BESKE: The VMI case, one that was very near and dear to my grandfather’s heart as a
brother rat from the Class of 1935, I think.
MR. OLSON: Is that right? That’s great. Is he still alive?
MS. BESKE: No. He passed away, but after the disappointment of the results in the case,
which was for him quite disappointing, as I’m sure it was for many alums.
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So you defended VMI’s policy of admitting only male cadets. The court
rejected your argument on sort of an it’s not separate and equal type, they
rejected, was it VWIL?
MR. OLSON: VWIL.
MS. BESKE: I read that you praised the Scalia’s dissent as one of the most eloquent and
moving opinions you’ve ever read.
MR. OLSON: I think it was, plus the dissent in Morrison v. Olson. I argued the case. I
spent a lot of time. I went down to VMI a couple of times, and I went to a
couple of other places. I went to VWIL. The program, and our theory in that
case, I tried to make the theory, the approach we were taking, one that people
could understand on both sides of the political spectrum, and it was this:
Some young people at that age, the college age, benefit from a single-sex
education as opposed to co-educational education. Some young men are
better educated – and educators say this, not lawyers – educators say this, and
we had plenty of evidence, and women’s colleges have been very successful,
produce more directors, more doctors, more lawyers and so forth, so that lots
of people in the educational world believe that a single-sex education for
young people is a good alternative, that not everybody should have to go to
the same kind of school, and that if that’s a good alternative for young
people, it shouldn’t only be available to rich people. So private schools exist
and especially in the women’s schools you can go to single-sex education
and lots of people believe that for their education and they’ll swear to it. So
if you’re going to have educational options and educational opportunities for
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all your citizens and you don’t want to limit it to rich people, you should
have a part of the public school system available for a single-sex education.
And if you do, and I think we calculated it was like 4% of the
Commonwealth of Virginia’s budget for education was for single-sex
education, then you should let the institution, the single-sex institution for
men and the single-sex institution for women – be designed by experts in
education who will tell you the best kind of environment to get your
educational objectives accomplished. For men, it is a very different type of
thing than it is for women. And there were plenty of experts that said yes
this adversative system is good for boys so that they’re not out breaking
windows and stealing cars. Kids are hormones raging and so you have to
sort of have them doing push-ups all the time, getting up early in the
morning, and the men that graduate from VMI will say absolutely. The
educators also say well you could have that for women, but it wouldn’t be
very attractive to women because – these are stereotypes obviously, but
they’re stereotypes based on educators saying these are what works – that a
more collaborative environment works better for women’s education. You
don’t see women’s colleges with this up at 5:00 in the morning drilling and
beating one another up and running laps around and blah, blah, blah. So I
thought that it’s separate and it’s not the same, but it’s designed by people to
accomplish the objective of a single-sex education that would be suitable for
that particular sex at that particular time and you’re giving people the
alternatives, yet nothing is going to be exactly the same. Well, I thought it
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was a very persuasive argument. The clerk of the court, Bill Suter, told me it
was one of the best arguments he’d ever heard – now I’m patting myself on
the back. I shouldn’t, but he was very taken with the argument. I thought it
was a very good argument. I got slaughtered 7 to 1. Justice Thomas, who
had sent a son to VMI, recused himself. So I got Justice Scalia and nobody
else.
MS. BESKE: Were you surprised not to get the Chief?
MR. OLSON: I always think that I’m going to win, although I could see the handwriting on
the wall. I was being told, “You’re going to lose this case.” I thought I did
the best I could. I have a story that I’ll tell you about Justice Ginsburg and
her husband. I don’t know whether I should.
MS. BESKE: You can take it out later.
MR. OLSON: Can I? I’ll tell you but you have to promise me that I can take it out.
MS. BESKE: Absolutely.
MR. OLSON: My mother, who is now 95 – I don’t know when that year was, so she was
not a young woman, she came out from California, so that was 20 years ago.
So she was 76. She came out and watched the argument, and that night we
went to the Shakespeare Theatre. There was some performance at the
Shakespeare Theatre, and a couple of the Justices were doing a cameo thing,
coming out on the stage. They were both there, and I think maybe the Chief
was there. There was a reception beforehand, and Justice Ginsburg was
there, so I said to my mother, who’s no bashful person, “Would you like to
meet Justice Ginsburg?,” and she said, “No. She was rude to you.” And I
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said, “She was not rude to me. She was tough. And she was asking really
good questions. I expect that. But she was not rude. So I don’t want you to
think that she was rude.” So we did introduce her, and my mother was polite
and so forth and reserved, but she wasn’t quite ready to abandon her concept,
or her notion, that Justice Ginsburg had been rude. And then Marty Ginsburg
came up to me. Justice Ginsburg had moved on, and he said, “That was
really a good argument.” He said, “I hope you win.”
MS. BESKE: [Laughter]. That’s great.
MR. OLSON: He’s no longer alive. But I thought that was very cute. I don’t know whether
he really wanted me to win or not, but it was a very cute story.
MS. BESKE: You mentioned Clarence Thomas. So 1988, George H.W. Bush elected.
1991 Clarence Thomas nomination. Anita Hill hearings, which brings up . . .
how did you and Barbara meet? We’re about to segue into her participation
there.
MR. OLSON: Barbara and I met, I was giving a speech. It was 1989 or 1990. I was doing
a speech about RICO or something like that. She was at that point a young
lawyer at the Wilmer firm. One of my friends, who writes a column for The
Wall Street Journal, Gordon Crovitz, and I were on the same panel. She
came up to the two of us and introduced herself. Gordon and I had been
friends forever and ever, we talked to her for a while, and then I can’t
remember what happened next. I was single, she was single. We bumped
into one another at a Federalist Society event or something like that and
developed a friendship and we started to date.
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MS. BESKE: Then she moved to the EEOC?
MR. OLSON: No. She left Wilmer and went to the U.S. Attorney’s Office. She was an
AUSA. I don’t know what those years are exactly. She was an Assistant
U.S. Attorney, and she was really good. She’d wear these brightly colorful
Escala suits and high heels, colorful heels, and she’d whisk into court. She
had long strides and long blonde hair, and whip her hair around, and she
loved prosecuting. I don’t think she ever lost a case over there. Then she
went to the House of Representatives, and she worked on a committee for the
Oversight Investigation Committee, and then she became, I’m not sure the
sequence, she became Deputy General Counsel House of Representatives,
Deputy General Counsel and Solicitor, and then at some point she worked for
Senator and Senate Majority Whip Don Nickles. She was Don’s general
counsel. She jumped from one thing to the next, always moving on to
something else, and then she ultimately wound up working for Haley
Barbour in his law firm, and she wrote that book, and she started to appear on
television. I don’t know whether the television stuff started with the
Clarence Thomas things.
MS. BESKE: Did she work with Clarence Thomas?
MR. OLSON: No. She and Ricky Silberman helped create the Independent Women’s
Forum. They started their group by coming here at 6:00 in the evening, there
were a dozen of them, creating this conservative women’s organization.
Because she had been a U.S. Attorney, someone asked her if she would
testify for Clarence Thomas about his criminal jurisprudence.
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MS. BESKE: I see. I misunderstood that she had worked at EEOC under him. Okay, so
his criminal jurisprudence on the D.C. Circuit?
MR. OLSON: On the D.C. Circuit. So she testified. She wrote some testimony and
testified how – this was before the Anita Hill stuff – how his jurisprudence
was sound in connection with criminal cases, and then Ricky, of course, was
very close to Clarence because she had been his deputy at the EEOC. I had
known Judge Larry Silberman forever and ever and ever and Ricky forever
and ever and ever. So that’s how Barbara and Ricky and Barbara Ledeen and
a few other people got to be friends. When the Anita Hill thing came up,
women would come in and testify on behalf of women what their position is
with respect to Anita Hill and Clarence Thomas and so forth, and Ricky and
Barbara Ledeen, Barbara Olson, and a few other women were incensed that
someone was speaking for them.
MS. BESKE: On behalf of all women.
MR. OLSON: All women believe such and such. And Barbara was a strong believer that
you don’t put me in any kind of a box. So they decided well we have to form
an organization so that when there are these controversies, someone can
come in and say this is another point of view and all women aren’t
monolithic about yes they’re for this, yes they’re against that, and so they
became more – they needed a place to meet so they had what was a differentlooking
conference room in here, and we’d provide them with soft drinks and
popcorn.
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MS. BESKE: Do you think she would have described herself and this group as a feminist
group, just a different flavor?
MR. OLSON: They would have amplified on that a little bit because they felt the word had
been co-opted and was identified by people as a certain breed of point of
view. She testified – she was on a panel once at the D.C. Circuit. Some
group that formed a study and a report about how women were treated in the
federal courts in the District of Columbia, and this report came to the
conclusion that women were treated badly, that they were interrupted, that
when they walked into court, the court functionaries would think that they
were a secretary, didn’t think they were a lawyer, they were interrupted more
than men, they were talked down to, and so on and so forth, and something
had to be done about all this. Barbara was on this panel. Barbara sort of
disagreed with all of that. She said we don’t need to be treated like babies.
You don’t need to handle us, we can handle it ourselves, don’t tell people
that we’re so fragile that if we’re interrupted somehow we can’t handle it.
That in itself is demeaning to women and stereotyping women and making us
look like the weaker whatever. So she had that kind of contrary point of
view and basically the Independent Women’s Forum women were more in
that category of things. So the word “feminist,” they were all very much
strongly in favor of women’s rights and women’s strength and women being
here and women being there. They were fierce about it, and Barbara was
very fierce about it, but in a way.
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MS. BESKE: It’s very interesting because that’s a lot like Justice O’Connor’s philosophy, I
think. Very tough, strong, independent, don’t do me any favors kind of
approach.
MR. OLSON: If you’ve read her book where she talks about taking a lunch out to the
ranchers. When she was a justice, I remember one time when the whole
court was snowed in. Rehnquist, of course, wasn’t going to cancel court
under any circumstance. He’s from Wisconsin. She was the first one to
show up, and she drove herself.
MS. BESKE: That’s great.
So 1992 we have Reagan giving his speech at the Nominating Convention.
Bill Clinton is elected, and thereafter that must have been quite a shock to the
Republican establishment in D.C. after 12 years. It was sort of a generational
move. It was a move amongst parties. It was Arkansas versus inside. Was
everybody reeling from the get-go?
MR. OLSON: I wouldn’t say shocked or reeling. We were all on the other side, but this is
what happens in presidential elections. I’d have to think back. There may
have been some sense that given what we know about him and his conduct as
governor and a few other things, it was a little surprising that he could
overcome all of that. On the other hand, I think that some people in the
Republican party thought that George H.W. Bush had sort of run out of
energy and steam and he looked weak and looked apathetic and didn’t fight
as hard as he should have and there was a little bit of well, this is what
happens when you don’t go out and fight for it. I’m not a politician.
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MS. BESKE: Fairly shortly thereafter, the Arkansas Project began, and I know you may
not have heard about that for some time. Were you on the Board?
MR. OLSON: I can’t remember when I went on the Board. I don’t think we called it the
Arkansas Project. It was money coming in from Scaife to help fund
investigative journalism. That’s the way that people at The Spectatro looked
at it. Here’s the President of the United States. Journalistic organisms, at
least in some respect, have a responsibility, or that’s what journalists do, is to
go out and investigate public officials, and there’s nothing in the world
wrong with people giving money to say we’re funding you to conduct
investigations. So I think the “Arkansas Project” label got affixed to it later,
but I of course know what you’re talking about. When I knew about it, I was
really not – I was first of all consulted from time to time about a legal issue
having to do with articles, and then I wrote some things, which you all have
probably heard about, and then at one point Bob Tyrrell asked me to be on
the board.
MS. BESKE: You were also the lawyer for The American Spectator?
MR. OLSON: Yes. I was, for some things. But I was not the only lawyer. I didn’t do the
tax stuff, or the 501(c)(3) stuff or any of the governance kind of things. I
don’t recall doing any of that. But I was called from time to time with
respect to legal issues with articles or related activities. Or once in a while
asked to read a piece and say whether it was something that was going to
cause legal problems.
MS. BESKE: Did you read David Brock’s His Cheatin’ Heart?
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MR. OLSON: Did I read it before it came out? I don’t remember. I might have, but I don’t
recall. I had done this similar type of work for the Los Angeles Times when I
was in Los Angeles, and for Los Angeles Magazine, and for a couple of other
magazines, so I had some familiarity with doing it. Did I read that piece
before it came out, I wouldn’t be surprised because it was somewhat
inflammatory, but I don’t specifically remember reading it.
MS. BESKE: At this point then, Barbara was over at the House, Chief Investigative
Counsel as you said previously for the House Committee on Oversight and
Government Reform, and in that capacity, she had a lot of an investigatory
role with respect to TravelGate and all those Gates.
MR. OLSON: Yes. She and her chief assistant was Barbara Comstock, who is now a
member of Congress from Virginia, and the two Barbaras, plus Barbara
Ledeen from time to time. They were full of energy, they loved what they
were doing, and it was something to behold.
MS. BESKE: I’m sure there was a lot of smoke all over, and it looked like there was a fire
sort of at the end of every corridor. So Ken Starr was appointed independent
counsel replacing Robert Fisk, all the while conducting all these
investigations. To what degree were you involved? I guess at a certain point
you represented David Hale.
MR. OLSON: Yes. That was pretty far into it. Someone came to me and asked me to
represent him because – he was going to be – I represented him in a limited
capacity for a limited period of time. He was going to be a witness for
Starr’s investigation, and at the same time, he was being subpoenaed by
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Senator D’Amato’s Banking or Finance Committee to testify about the same
things. I was hired to represent him in connection with that testimony before
D’Amato’s committee. My advice to him was don’t do it. You’re put in a
position you don’t have any protection over there, they can ask you any damn
thing they want, the rules of evidence don’t apply, different people will be
asking you different questions, and you could be incriminating yourself.
You’ve got a Fifth Amendment right. As it is, you’re going to be
interrogated probably before a grand jury, and I can’t remember the
sequence, so I advised him that it would not be prudent to testify, and I sent a
letter to Senator D’Amato saying he wasn’t going to show up. Senator
D’Amato and his staff were infuriated because that was going to be a nice
little headline thing, and they threatened to do all kinds of things to me.
Anyway, Hale did not show up.
MS. BESKE: I’m confused. What was his committee doing that wasn’t already being done
by Starr’s investigation?
MR. OLSON: There was a lot of overlap, but that doesn’t ever inhibit members of
Congress. So they were investigating financial transactions or something
like that.
MS. BESKE: So looking especially at Whitewater and loans?
MR. OLSON: Stuff like that, but I don’t remember the exact jurisdictional ambit, but the
fact that Starr was doing that didn’t bother them a bit. They saw this was
headline territory, and that’s what these committees are most often driven by.
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MS. BESKE: You had the power to not send David Hale. In other words, it wasn’t a
subpoena?
MR. OLSON: Did he get a subpoena? I can’t remember whether he got a subpoena or not.
I told them he was not going to show up with a subpoena or not. They
argued with me about that. They said we’re going to make him come in.
He’ll be in contempt of Congress or something like that if he doesn’t come
in. And I said I will take that to the press, and I will say that you’re doing
this to intimidate a person trying to exercise their constitutional rights, and
it’s going to look very bad. When I get done talking about this, it’s going to
look like you’re pressing this person, and all you’re doing is bringing him in
so you can savage him in public. He’s going to plead the Fifth Amendment,
you’re not going to get any information, but you’re going to get headlines
picking on this guy and you’re making a spectacle out of him, and I will fight
back. So they backed down.
MS. BESKE: One issue that I saw in news reports is whether or not you got paid for your
services by David Hale. I don’t even understand why that was an issue.
You’re a lawyer, you’re entitled to get paid.
MR. OLSON: I don’t think I was ever paid.
MS. BESKE: I don’t think you were, but why was it an issue?
MR. OLSON: I don’t know whether people were – I can’t remember what the hook was.
It’s the same as the magazine. It’s not the same, but it’s similar to the
magazine. The magazine’s position, as far as I was concerned, is that it was
getting grants to be used to investigate high officials. That is our First
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Amendment right. You can’t touch that. Do you think National Public
Radio doesn’t get money to do stories about Japan? It does. I hear it on the
radio. People get money to do exploratory journalism. There’s nothing
wrong with that, but it was politics, and they were making something. I think
that was sort of the same thing. You’re doing it for free and therefore you
must be a part of the conspiracy. I don’t remember what the issue was. I’m
pretty sure we didn’t get paid for that.
MS. BESKE: What I couldn’t figure out is whether it would have been better for you to get
paid or not get paid from the standpoint of whoever was asking.
MR. OLSON: I can’t remember. As far as our law firm is concerned, it’s always better to
get paid, but I don’t remember.
MS. BESKE: So you and Barbara got married when?
MR. OLSON: 1996. May 4th.
MS. BESKE: I believe you told me a story off tape about how Judge Silberman gave her
away.
MR. OLSON: Yes. We were very close friends by this time, and he offered to perform the
wedding, and he researched, or somebody researched, that in Virginia, not
just anybody can come in and perform a wedding, you had to have some sort
of a certificate, and you have to apply for it, and you have to do something.
Just because you’re a federal judge, unless maybe if you were a federal judge
in Virginia, but he’s a federal judge in the District of Columbia. At any rate,
he found out that he couldn’t or there was too much red tape or something
like that, so we compromised. Her father had passed away, so he walked her
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down the aisle and gave her away. And Judge Luttig, who is now General
Counsel at Boeing, actually performed the wedding.
MS. BESKE: That’s great. So she during this period was quite busy writing her book, Hell
to Pay?
MR. OLSON: When did it come out? Do you know?
MS. BESKE: 1999.
MR. OLSON: It took about a year. Do you have that book?
MS. BESKE: I do not.
MR. OLSON: I’ll get you a copy of that book right now. Did you see my – I don’t know if
you want it or not – but the speech that I gave the Federal Society First
Barbara Olson lecture two months after September 11. Did you ever see
that?
MS. BESKE: I think I did.
MR. OLSON: I’ll get that for you. It’s the last one I have, but I have boxes at home.
MS. BESKE: Terrific. Thank you. This is great. I really appreciate it. This is probably
the worst picture ever taken of Hillary Clinton.
MR. OLSON: Barbara’s picture on the back is one of the best ones.
MS. BESKE: It’s a beautiful picture. If you write the book, you get to choose it. We’re
about ready to talk about Bush v. Gore. Do you have time?
MR. OLSON: You probably don’t want to do that in five minutes.
MS. BESKE: I don’t. No. Okay, in that case, I’d love your perspective on the Clinton
years, it seemed like there was a lot of energy spent looking for scandals.
Now that we’re 15 or 20 years away from that, how do you see that period?
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MR. OLSON: The people that were examining what President and Mrs. Clinton had done or
were doing in office believed that the Clintons were on the wrong track on a
lot of these things from the standpoint of what was good for the country but
that they also bent the rules and played fast and loose. He in various
different ways and she in other ways, but that between the two of them, there
was a panoply of things that the American public deserved to know about
and that were not favorable to the Clintons. There was a certain amount of
zest involved in looking at these things because people felt out of their
convictions that these people should be seen for what they are. Barbara’s
book, Hell to Pay, sort of takes chapter-by-chapter with Saul Alinsky, there’s
a quote from him in every chapter, and how a few words about Saul
Alinsky’s methods in engaging in politics motivated her, and so that’s what
she was doing in that book. But other people felt that this was the right thing
to do, to expose misconduct. And then Hillary at some point did us all a
favor of calling it a vast right-wing conspiracy, which it really wasn’t, except
of course people talked to one another. Basically people were going off and
independently doing various different things, but at one point someone
suggested that it was all being conducted out of our living room in Great
Falls, Virginia, which was very, very funny. But it was people participating
in the political process.
MS. BESKE: When Starr’s report came out and it really – I mean it obviously led to
impeachment, but didn’t find, for example, a conspiracy with respect to
Vince Foster, didn’t find much in this case or in that case. Did you feel like
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he somehow got it wrong, or that everybody was just so exhausted at that
point?
MR. OLSON: I thought Ken’s report was a big mistake. I’ve known Ken – I don’t know
whether we’ve talked about this before. We were close to him and Alice. I
thought it was a huge mistake for him to take this job. In fact that same
weekend that he was appointed, I and one or two other people tried to say,
“Ken don’t do it,” and so forth, but he did it. And then I think he had an
opportunity to hear my advice, and my advice was to set forth, you have a
responsibility under the statute to give a report to Congress. Give a report to
Congress of what you investigated and whatever findings you had, but don’t
characterize it. Don’t get into whether it was really bad or this was wrong or
this was impeachable or anything like that. Just lay the facts out and let the
Congress deal with it. So I think from a tactical standpoint, or not from a
tactical standpoint, but from a governmental standpoint, his responsibility
was not to be, at that point he had decided not to prosecute, so it was sort of
like my thing with Walsh is if you must report to Congress, just report the
facts and let them characterize it and put it in whatever light they want to put
it in and do whatever they want to do with it, but don’t you act like a
prosecutor when you send something over. Which unfortunately he did. I
think that was the wrong thing to do because, I felt the independent counsel
is an awful thing to begin with shouldn’t be doing, but he went ahead and did
it and it sort of backfired on the people who were the antagonists of the
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Clintons because it sounded like a screed and there was stuff in there that was
salacious and totally unnecessary.
MS. BESKE: Did people feel as if there were things that Starr had missed or that he ought
to have pursued further?
MR. OLSON: I don’t remember thinking that.
MS. BESKE: So at the end of the day then, the Lewinsky allegations of perjury, was that
something that got people agitated? Was it the idea that here’s a guy who’s
been unfaithful to his wife and then lying about it. Was it the infidelity or the
lying?
MR. OLSON: It was the whole sordid thing. You’re the President of the United States,
don’t you have some respect for the office, the dignity of the office, and
don’t you have some sense of self-restraint? Bill Clinton never had a
substance abuse issue, but it was sort of a personal level of conduct that was
sort of like impulsive and uninhibited, something he didn’t seem to be able to
stop himself from doing. The stunning thing about the first Little Rock story
about the troopers and everything where he’d already been – now he’d been
elected President of the United States, and this was going on after the
election but before he came to Washington. I think some of that stuff in
there, what is he thinking, and what is he thinking with respect to the people
who elected him? To the extent that you are now President of the United
States, you’ve been elected by people who believe in you and your ideas,
you’re going to undermine and damage significantly your ability to
accomplish your objectives for the people that put you there, so why do this?
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For some tawdry personal sexual gratification. And then it was he was how
old, and she was how old. It was you’re sort of taking advantage of this
young person. In this day and age, even that was 25 years ago, young people
that work for you, you don’t behave that way with young people. If we had a
lawyer in our firm behave like that to a summer intern or something like that,
we’d probably fire the person or really come down on him hard the first time.
So it was that, and then it was just all of that and then the lying came along
later. First of all he lied to the American public and then it was the grand
jury thing and it got tied in with the Jones thing.
MS. BESKE: It was his deposition in the Jones thing, I believe, where he was given a
“Here’s what we mean by a definition of ‘sex,’ did you do this?” He said,
“No.” And the dress said otherwise.
MR. OLSON: First of all, he didn’t want to defend the case – Paula Jones. That went to the
Supreme Court, and he lost 9-0 in that case, and then the testimony in the
Jones case but there was also grand jury testimony. I got involved in it – did
I mentioned this before? When that story broke, I got a call that morning
from a client in New York. I’m in the office pretty early, it was probably
about 7:00 in the morning, they said, “Have you heard this story?” I said,
“Yeah, I listened to it on the way in.”
MS. BESKE: Which story?
MR. OLSON: The Monica Lewinsky story just broke, and of course the news was on fire.
So I said yeah, I can’t believe that, and they said you’ll see in that story that
she’d been offered a job and we are the ones who offered her the job, and
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she’s supposed to come to work for us next week. It was Revlon, and it was
the company that owned Revlon, and they sent an airplane for me so I could
go down there right away – potential public relations disaster, so I was
involved in it a little bit on that side too.
MS. BESKE: How did you manage it?
MR. OLSON: We got out in front of it. We got out and said she was offered and accepted
an entry-level position. She’s supposed to start next week or something like
that. In light of the circumstances, she’s obviously going to be tied up with
other responsibilities, so we’ve sort of suspended that hiring because we did
not want her showing up for work followed by 50 newspaper reporters and
that we will have no further comment. So that gave them something, but
there was probably a little bit more to it. And then the chairman of that
company had to testify before a grand jury about the hiring circumstances.
We told the truth, only the truth, but not very much and nothing more than
necessary, and stayed low. But you have to give them something otherwise
they would have been surrounding that building forever. It worked out okay.
MS. BESKE: It’s amazing all of the various ways in which things sort of bent back onto
themselves in that era. Probably best to stop now then.
MR. OLSON: Okay.