Statement of Sen. Leahy on the Nomination of Ted Olson to be Solicitor General (Re: Olson’s Lies about His Central Covert Role in the Arkansas Project), May 17, 2001
Statement of Senator Patrick Leahy on the Nomination of Ted Olson to be Solicitor General
May 17, 2001
The Solicitor General fills a unique position in our Government. The Solicitor Genceral has great responsibility for the integrity of our laws. The Solicitor General is not merely another legal advocate whose mission is to advance the narrow interests of a client, or merely another advocate of his President’s policies. The Solicitor General is much more than that. The Solicitor General must use his or her legal skills and judgment to higher purposes on behalf of the law and the rights of all the people of the United States. At his hearing, Mr. Olson acknowledged that: “The Solicitor General holds a unique position in our Government in that he has important responsibilities to all three branches of our Government. . . .
On this Committee, Republicans and Democrats have reviewed nominations to the position of Solicitor General seeking the highest levels of independence and integrity, as well as legal skills. Indeed, the Solicitor General is the only government official who must be, according to the statute, “learned in the law.” The Solicitor General must argue with intellectual honesty before the Supreme Court and represent the interests of the Government and the American people for the long term, and not just with an eye to short-term political gain. It is our obligation here on this Committee to help the Senate determine whether a nominee understands and is suited to this extraordinary role. …
From my initial meeting with him in advance of the April 5, 2001, hearing and thereafter, I have been viewing this nomination against the responsibilities of that important office. Concerns At the outset I raised with Mr. Olson my concern that his sharp partisanship over the last several years might not be something that he could leave behind.
Through the course of the hearing and written questions, I have become concerned that Mr. Olson has not shown a willingness or ability to be sufficiently candid and forthcoming with the Senate so that I would have confidence in his abilities to carry out the responsibilities of the Solicitor General and be the voice of the United States before the United States Supreme Court.
In addition, I am concerned about other matters in his background. I had hoped that the Committee would fulfill its responsibilities and follow up on the questions that persist regarding Mr. Olson’s involvement in connection with the American Spectator and the ‘Arkansas Project’.
From his initial responses to my questions at his hearing I was concerned that the Committee might not have heard a candid and complete accounting from Mr. Olson. Rather than respond directly and say all that he did do in connection with those matters, Mr. Olson chose to respond by misdirection and say what he did not do.
He implied to me and to the Committee that his role was extremely limited as a member of the Board of Directors of the American Spectator Educational Foundation and that he was involved only after the fact, when the Board conducted a financial audit and terminated the ‘Arkansas Project’ activities in 1998. Mr. Olson has modified his answers over time, his recollection has changed, and he has conceded additional knowledge and involvement.
His initial minimizing of his role appears not to be consistent with the whole story. Because his responses over time have left significant questions and because of press accounts that contradict the minimized role to which he initially admitted, I have tried to work with Senator Hatch to have the Committee perform the factual inquiry needed to set forth the facts and resolve all questions and concerns about Mr. Olson’s answers.
The Lack of Committee Inquiry Unfortunately, Senator Hatch has decided not to cooperate in a bipartisan inquiry. He has rejected even an inquiry of limited duration that would have involved jointly interviewing a handful of individuals, who have already been speaking to the press, with contemporaneous knowledge from the time in question, and obtaining billing records and certain financial audit documents that would be highly probative of Mr. Olson’s role. It was Senator Hatch who admitted last Thursday to this Committee that, “some legitimate questions,” have arisen and that, “legitimate issues,” were involved. He said that based only on a Thursday, May 10, 2001, article in the Washington Post. Since then, a number of press accounts have indicated that Mr. Olson’s role at American Spectator was more than just as a member of the Board of Directors in 1998 to which a financial audit was provided.
On Friday, May 11, 2001, the Washington Post reported that both R. Emmett Tyrrell and Wladyslaw Pleszczynski said that project story ideas, legal issues involving the stories, and other directly related matters were discussed with Olson by staff members and at dinner parties of Spectator staff and board members. Tuesday night, May 15, 2001, Senator Hatch shared with us a letter he obtained from Messrs. Tyrrell and Pleszczynski denying the specific words in the Post story but not denying that they talked to the Post reporters. Indeed, the Post story quotes Mr. Tyrrell, a quote he does not disavow, as saying he did not recall, but it was a possibility that he talked to Ted Olson about the stories about the Clintons.
“I would say it was a possibility, just as it was a possibility that Roosevelt would have discussed Pearl Harbor on December 8 with his secretary of state.”
Tyrrell and Pleszczynski also say that Mr. Olson’s carefully worded disclaimer was technically accurate as far as it went. His law partner Doug Cox told the Post that Olson testified that he “did not know there was this special fund set up by Scaife to finance this Arkansas fact work.” That might have explained Mr. Olson’s testimony if he had said that at the time he was writing the articles and giving legal advice and talking about these matters with the staff, he had been unaware that those conversations were in connection with what came to be known as the ‘Arkansas Project’. But that is not what Mr. Olson testified. In fact, he admitted that he became aware of the ‘Arkansas Project’ at least by 1998, and then changed that testimony to sometime in 1997.
He said he was a Member of the Board that received an audit of the Scaife funds. So by 2001, his knowledge of the ‘Arkansas Project’ and the funding by Scaife was undeniable.
In April, 2001, his testimony was initially that he was not involved, except as a Member of the Board. Over the past several weeks and several rounds of questions, Mr. Olson has expanded his initial response to admit that he and his firm provided legal services in connection with the matter, that he had discussions in “social” settings with those working on ‘Arkansas Project’ matters, and that he himself authored articles for the magazine paid for out of Scaife’s special ‘Arkansas Project’ fund. According to the Post article, over $14,000 was paid to Mr. Olson’s law firm and attributed by American Spectator to the ‘Arkansas Project’.
Mr. Tyrrell and Mr. Pleszcynski do not deny that aspect of the Post’s account. Instead, they merely repeat the mantra that even if he was paid with ‘Arkansas Project’ funds, Mr. Olson would not have known that. What they leave out is a necessary qualifier, “at the time he received the payment.” They and Mr. Olson became privy to the internal audit of the ‘Arkansas Project’ by 1998. That audit and his knowledge as a Board Member of the extent of the ‘Arkansas Project’ it revealed render Mr. Olson’s testimony in April, 2001, less than complete.
Following our meeting last Thursday, I had the Democratic investigative staff contact the Republican investigative staff and ask how Senator Hatch intended to proceed to resolve the questions that had arisen in connection with Mr. Olson’s account of his activities. When we did not get any response before the end of last week, I made a proposal to Senator Hatch. I sent him a letter over the weekend and we talked about it. He said he would be getting back to me and I held out hope that we would be able to proceed in a fair and bipartisan way to get to the facts and let all Members of the Committee make their own assessment. Instead, it appears that Senator Hatch was just waiting for a letter from Mr. Olson, and statements by a few selected supporters who sent in solicited statements so that he could unilaterally declare the matter closed.
The problem is that the Committee has not done its job. To do that job and do it with the decorum, credibility and thoroughness I would like, we need to work together. I proposed a bipartisan investigation with bipartisan investigative staff asking questions to individuals with relevant information. Most of these individuals have been quoted in press accounts, but I would rather the Committee have heard from them firsthand. Instead, the Chairman and the nominee sent me unsworn statements from some, not all, of the individuals I proposed. Such statements are no substitute for cooperation with a bipartisan inquiry; such one-sided statements are no substitute for responding to questions with follow-up and follow-through; such one-sided statements are no substitute for doing our due diligence and reviewing the underlying documents to test the accuracy and veracity of the claims reflected in the statements.
The real question here is what are they trying to hide?
Contradictions and Discrepancies
Let me review the questions that have arisen. Why is there reason to suspect that Mr. Olson’s role was not limited to that of a Member of the Board to which a financial audit was provided in 1998? A good deal of the basis is provided by subsequent answers provided by Mr. Olson himself. Compare, for example, Mr. Olson’s initial response with his May 9, 2001, letter to me. On April 5, 2001, in response to the question whether Mr. Olson was, “involved in the so-called ‘Arkansas Project’ at any time,” he responded by saying what he did not do, and with reference to his membership on the Board of Directors: “As a member of the board of directors of the American Spectator, I became aware of that. It has been alleged that I was somehow involved in that so-called project. I was not involved in the project in its origin or its management.”
After some correspondence, Mr. Olson changed his answer: “First, I will address again your questions concerning my involvement in the ‘Arkansas Project.’ My only involvement in what has been characterized as the ‘Arkansas Project’ was in connection with my service to the Foundation as a lawyer and member of its Board of Directors.”[Underlining added for emphasis.] Mr. Olson initially left out any reference to his role as lawyer. Indeed, when he was asked during his hearing about an article he had coauthored that was published under the pseudonym “Solitary, Poor, Nasty, Brutish and Short” in the American Spectator magazine he did not indicate that “the magazine hired [his] firm to prepare” such materials and to perform legal research on the theoretical criminal exposure of the President and Mrs. Clinton based on press accounts of their conduct. I, for one, thought Mr. Olson had defended his writings as matters of personal First Amendment political expression.
I had no idea from his testimony at his confirmation hearing that this article was part of his and his firm’s ongoing legal representation of American Spectator Educational Foundation, that it was a commissioned piece of legal writing, paid for by a grant from conservative billionaire Richard Mellon Scaife. I am now left to wonder whether his article that was so critical of the Attorney General and the Justice Department was as he described them at his hearing the “statements of a private citizen,” or another paid for political tract.
Mr. Cox appeared to admit in the May 10, 2001, report in the Washington Post that Mr. Olson was present at dinner meetings at which people intimately involved in managing, supervising and directing the ‘Arkansas Project’ discussed their work. In his most recent statement in defense of Mr. Olson, Mr. Cox does not deny such activity on Mr. Olson’s behalf. Mr. Cox notes that he and Mr. Olson worked on legal matters for the American Spectator, including legal research that was incorporated into the article that was published in 1994 in the American Spectator, under a fictitious name, that argues that the President was facing up to 178 years in prison and Mrs. Clinton had a criminal exposure of 47 years in prison. He then proceeds to undercut any claim of attorney-client privilege for these activities by indicating that they did not rely on any communications with anyone at American Spectator.
I have inquired of Mr. Olson what his and his firm’s legal representation of the American Spectator entailed, but to no avail. In response he has been extremely general, vague and unspecific.
In addition, he has at times cloaked his nonresponsiveness in allusions to the attorney-client privilege. Having now conceded his involvement in these matters, something he did not do initially, the question arises: how extensive was that involvement as a lawyer?
I have asked the American Spectator for the internal audit about which he testified and described as “public” and that he saw as a member of the Board of Directors to no avail. I have asked at least for production of his firm’s billing records and have been stonewalled on that request as well. Accordingly, we do not know what Mr. Olson did as lawyer and when he did it.
The billing records are missing in action.
It is interesting that Senator Hatch has obtained and been able to circulate in the last couple of days abbreviated statements from a few of the people who have been quoted in press accounts on these matters. Of course, an abbreviated statement including arguments and conclusions is no substitute for a bipartisan examination.
Thus, while I proposed a bipartisan investigation with bipartisan investigative staff asking questions to individuals with relevant information all that the Chairman and the nominee have circulated are unsworn statements from some– although not all– of the handful of individuals I proposed be interviewed. Such statements are no substitute for cooperation with a bipartisan inquiry.
Such one-sided and self-serving statements are no substitute for responding to questions with follow-up and follow-through. Such one-sided statements are no substitute for doing our due diligence and reviewing the underlying documents to test the accuracy and veracity of the claims reflected in the statements.
The looming question here is what are they trying to hide?
Let me cite another example of what the recent statements do not say and what recent press accounts are not addressed. Mr. David Henderson apparently signed a statement this Tuesday indicating that in his view he broke no law while implementing the ‘Arkansas Project’. What he does not say and what he does not deny is that he was the person who introduced David Hale to Mr. Olson. When I asked Mr. Olson at his April 5, 2001, hearing how he came to represent Mr. Hale he started by saying, “[t]wo of [Hale’s] then lawyers contacted me and asked . . . .” A few seconds later Mr. Olson said, “[o]ne of his lawyers contacted me– I can’t recall the man’s name– and asked whether I would be available to represent Mr. Hale in connection with that subpoena here in Washington, D.C. They felt that they needed Washington counsel with some experience dealing with a congressional investigation. I did agree to do that. Mr. Hale and I met together.”
Even in his May 9, 2001, letter, Mr. Olson asserts that he, “cannot recall when [he] was first contacted about the possibility of representing Mr. Hale.” He indicates that he believes, “that [he] was contacted by a person or persons whose identities [he] cannot presently recall sometime before then regarding whether I might be willing to represent Mr. Hale if he needed representation in Washington. As I recall, I indicated at the time that I might be able to do so, but only in connection with a potential congressional subpoena, not with respect to legal matters pending in Arkansas. . . . I believe that this meeting was inconclusive because Mr. Hale did not at that time need representation in Washington.”
Last Friday’s, May 11, 2001, story in the Washington Post reported that David Henderson said last Thursday that he introduced Hale to Olson when Hale came to Washington to find a lawyer who could help him deal with a subpoena from the Senate Whitewater committee, and sat in on a meeting between the two men.
It now strikes me as strange that a man as capable as Mr. Olson with his vast abilities of recall could not remember the name of David Henderson, if Mr. Henderson was, in fact, involved in setting up that representation. It leads one to wonder whether Mr. Olson’s failure to recall the name David Henderson had something to do with his not wanting to indicate the connection to such a central figure in the ‘Arkansas Project’.
Indeed, it has been reported that when Mr. Olson became a Member of the Board of Directors of the American Spectator his January 1996 letter accepting the position was addressed to the publisher Ronald Burr with copies sent to Messrs. Tyrrell and Henderson.
Mr. Henderson says in his recent statement that he served for a while on the Spectator Board. But why was he, in particular, sent a copy? On this point regarding how Mr. Olson came to represent Mr. Hale, and Mr. Olson’s testimony to the Committee about it, we are now in receipt of a statement by Michael J. Horowitz that says that he, Mr. Horowitz, “attended one meeting in Mr. Olson’s presence at which the matter discussed was legal representation for David Hale, who was facing Congressional testimony and was in need of distinguished Washington counsel. At that meeting — at which no mention I know of was made of the ‘Arkansas Project’ or any term like it– the subject under discussion was whether Mr. Olson’s firm would serve as counsel to Mr. Hale.”
It would be interesting to know in what capacity Mr. Horowitz was attending such a meeting, who else was in attendance, when the meeting took place and how that meeting related to Mr. Olson coming to represent Mr. Hale. According to Mr. Horowitz’ account, which has not been submitted to the Committee, it may not have been quite as simple as one or two lawyers then representing Mr. Hale approaching a high profile Washington lawyer and his instantaneous agreement to accept the representation for a client without a retainer and without much prospect of being paid after. According to Mr. Olson, he and Mr. Hale “met together” and Mr. Hale agreed to pay [Gibson, Dunn & Crutcher’s] fees.”
Having seen Mr. Horowitz’ statement, I am led to wonder whether the account of a late 1993 or early 1994 meeting in the Washington law office of Gibson, Dunn & Crutcher attended by David Henderson, Steve Boynton, John Mintz, Ronald Burr, Ted Olson and Michael Horowitz in The Hunting of the President (J. Conason & G. Lyons, 2000) is more accurate than we have been led to believe by Mr. Olson.
At his hearing, I had asked him whether there had been any meetings of the ‘Arkansas Project’ in his office and he responded without reservation: “No, there were none.” I followed up with a written question asking in particular about the time frame of 1993 and 1994, and Mr. Olson answered that he was “not aware of any meeting organizing, planning or implementing the ‘Arkansas Project’ in my law firm in 1993 or 1994.” I then followed up by drawing his attention to a passage out of The Hunting of the President (Id.) in which the authors of that book wrote that a meeting did take place at which the topic was using Scaife funds and the American Spectator to, “mount a series of probes into the Clintons and their alleged crimes in Arkansas.”
In response to that written question, Mr. Olson was less assertive and categorical. He did not deny that a meeting took place but disputed the characterization of the topic of the meeting.
Hedging his testimony, he noted that he did “not recall the meeting described.” It now seems that Mr. Horowitz’ statement may well be substantiating that a meeting did take place at Gibson Dunn in that time frame and that at least one of the topics was the representation of Mr. Hale.
With respect to Mr. Olson’s initial categorical denial of meeting at Gibson Dunn’s offices, in response to another written follow up questions derived from a passage in The Hunting of the President (Id.), I asked whether there had, in fact been meetings not only in 1993 and 1994 but also in July 1997 at the offices of Mr. Olson’s law firm to discuss allegations that money for the ‘Arkansas Project’ had been misallocated. Confronted with the specific reference to the public record, Mr. Olson modified his earlier categorical denial by conceding: “I do recall meetings, which I now realize must have been in the summer of 1997 in my office regarding allegations regarding what became known as the ‘Arkansas Project’ and questions concerning whether expenditures involved in that project had been properly documented.”
On Friday, May 11, 2001, the New York Times reported that Mr. Olson said that when he joined the Board of Directors of the American Spectator the ‘Arkansas Project’ was underway and that when he found out about it, he helped shut it down. In fact, Mr. Olson’s testimony to the Committee was that he was on the Board, “when the allegations about the project were simply that it did exist. The publisher at the time, under the supervision of the board of directors, hired a major independent accounting firm to conduct an audit to report to the publisher and therefore to the board of directors with respect to how that money was funded. . . . . As a result of that investigation, the magazine, while it felt it had the right to conduct those kind of investigations, decided that it was not in the best interest of the magazine to do so. It ended the project. It established rules to restrict that kind of activity in the future. . . .”
In a subsequent written response, Mr. Olson wrote: “Neither the report by Mr. [Terry] Eastland nor the Board found anything unlawful about the manner in which funds had been spent, which as I recall, had all been for the purpose of investigating and reporting information of legitimate public interest regarding high level public official. However, because of the controversy surrounding the matter, and issues regarding whether the journalistic products that resulted had been worth the amount spent, the project was ended and the Board adopted new guidelines to govern investigative journalistic efforts in the future.” The letter is interesting on these points, but only adds to the questions rather than resolving what in fact happened. Mr. Eastland adds another perspective and indicates a much more active role for Mr. Olson than had previously been acknowledged in representations to the Committee.
Mr. Eastland writes that in June,1997, disagreements arose between the magazine’s “then publisher” and Richard Larry, the executive director of the Scaife foundations. Mr. Eastland continues: “At that time, Mr. Tyrrell, who was also chairman of the board, asked Mr. Olson, a board member since 1996, for his assistance in resolving the dispute.” This role has never previously been acknowledged by Mr. Olson or Mr. Tyrrell. Mr. Eastland then asserts that “Mr. Olson agreed that a review of the project was necessary.” He continues: “Throughout my review, which included an accounting of the monies spent on the project as well as an examination of its management, methods, and results, I had Mr. Olson’s strong support.”
So, according to Mr. Eastland, Mr. Olson had a much more extensive role in deciding how the American Spectator would “resolve” the dispute, contributed to the decision to conduct a review and played a strong supportive role in the review. If Mr. Olson is now taking credit for finding out about the ‘Arkansas Project’ and for shutting it down, as reported by the New York Times last Friday, May 11, 2001, that would be a modification of those responses and his initial response that he was not involved in the project, “in its origin or its management,” to his later formulation that he did, “not recall giving any advice concerning the conduct of the ‘Project’ or its origins or management,” to his later formulation that he was not involved in its, “inception, organization or ongoing supervision,” or alternatively, that his, “only involvement in what has been characterized as the ‘Arkansas Project’ was in connection with my service to the Foundation as a lawyer and member of its Board or Directors.” Of course, there is much left unsaid by Mr. Eastland on this and other topics.
For example, he does not indicate how he came to be the publisher of the American Spectator and replaced Ronald Burr in November 1997 or whether Mr. Olson had a role in his recruitment or in that action of replacing the publisher. In this regard, Mr. Olson did not indicate to the Committee in his submitted responses to our questionnaire that he had been an officer at the American Spectator Educational Foundation.
In written follow up questions, I drew his attention to passages in The Hunting of the President (Id.) in which the authors of that published work indicate that Mr. Olson was named an officer of the organization on October 1997. Mr. Olson’s response is uncertain and equivocal indicating that he had a, “vague recollection that [he] served as a temporary secretary for the purpose of that meeting, and perhaps a subsequent one, something that I did not recall at the time I answered the initial written questions.”
We might well be able to resolve this factual matter and have a better basis to understand Mr. Olson’s various roles within the organization if my requests for board minutes and other materials were not being ignored. As it stands we are left wondering how accurate The Hunting of the President (Id.) is, given Mr. Olson’s lack or records and lack of recollection.
Moreover, nowhere does Mr. Eastland acknowledge even that which Mr. Olson and Mr. Cox have now acknowledged– that Mr. Olson co-authored a number of articles for the American Spectator for which he or his firm were paid with Scaife funds and that Mr. Olson provided legal advice in connection with other efforts funded with Scaife funds in connection with the ‘Arkansas Project’. On this point of payment for legal services and for articles, the statements provided by Mr. Olson are contradictory.
In his most recent, May 14, 2001, letter to Senator Hatch, Mr. Olson indicates that he and his law firm participated in the researching and writing of, “informational material which the magazine chose to publish under the pseudonym ‘Solitary, Poor, Nasty, Brutish and Short.”
Mr. Olson then incorporates a portion of the retainer letter between the American Spectator and his firm and indicates, “my firm was paid our normal billing rates.” In contrast to this recitation, we have Mr. Olson’s earlier written answer to me on this point in which he wrote: “I received payments for articles authored or co-authored by me. The fees ranged from $500 to $1,000 per article, as I recall.” I find it hard to imagine that Mr. Olson’s normal billing rates and those charged by his firm would yield only $500 to $1,000 per article. Or is it that Mr. Olson is indicating that in addition to the fees for the articles, he and his firm were also paid the hundreds of dollars per hour that they normally charge clients? This confusion might well be resolved by production of the audit of the ‘Arkansas Project’ obtained by the American Spectator and the billing records from Gibson Dunn, but to date our requests to Mr. Olson and the American Spectator for these materials have fallen on deaf ears. Some have said, why is this important? Does this matter? It is important for two reasons, both of which go to the core of the fitness of the nominee to serve as Solicitor General. The principle question raised by the nomination of Mr. Olson to this particular position is whether his partisanship over the last several years in connection with so many far reaching anti-Clinton efforts mark Mr. Olson as a thoroughgoing partisan who will not be able to check his partisan political instincts at the door to the Office of the Solicitor General. Similar questions were raised by the nomination of Michael Chertoff. In that case the questions were answered and the doubts dissipated. In connection with the Olson nomination, those doubts have grown over time.
Had Mr. Olson conceded the extent of his involvement in anti-Clinton activities and given the kinds of assurances that Mr. Chertoff did about his upcoming responsibilities, I would be supporting his confirmation. Indeed, when I met with Mr. Olson, when I prepared for the hearing and as I began the hearing, I hoped and expected that to be my position. I expected to be able to give him the benefit of the doubt and, in light of the deference I would normally accord a President’s Executive Branch nominees, I fully expected to be voting for this nomination. In the wake of the hearing, the series of supplemental responses we have received and the unanswered questions now in the public record about Mr. Olson’s involvement in partisan activities like the ‘Arkansas Project’, I still have my doubts. Second is the question of candor and straightforwardness. I have not had the sense from his hearing onward that Mr. Olson has been truly forthcoming with me or with the Committee.
My sense is that for some reason he chose from the outset to try to minimize his role in connection with the activities of the American Spectator, that he has sought to characterize it in the most favorable possible light, that he has sought to conclude for us rather than provide us with the facts and let us conclude how to view his activities. I will cite another example of nonresponsiveness from the record. I asked Mr. Olson in light of his testimony at the hearing that he was not involved in the origins or management of the ‘Arkansas Project’: “Were you involved in advising anyone who was involved in the origins or management of the project? If so, what advice did you provide? Were you at meetings or social events with anyone involved in the project as an originator, manager, reporter, or source for the project? If so, what role did you play at these meetings or social events?”
Mr. Olson’s response was, as follows:
“I did not realize that a Project of any sort was underway except to the extent that I have indicated. I was in contact at social events with reporters for the magazine and members of the editorial staff, individuals whom I regard as personal friends. I have been at countless social events at which one or more of such persons may have been present. I have not kept records of such meetings, or the nature of the conversations that may have occurred at such meetings that might have involved President Clinton or his contemporaneous or past conduct. I was not playing any particular role at those social events, except that I was probably a host of events at which persons who wrote for or performed editorial services for the American Spectator may have been present. To the extent that it is relevant to your inquiry, I was the best man at the wedding of the editor-in-chief of the American Spectator. I recall that he was also present at my wedding. He is a personal friend and we have had numerous social meetings. He has written at least two books about former President Clinton. I do not interpret your inquiry as asking for the substance of conversations at social events. And I do not recall giving any advice concerning the conduct of the ‘Project’ or its origins or management.”
Literally true? Probably. Responsive? Hardly. At the time of his hearing and his answer, Mr. Olson was well aware of what the ‘Arkansas Project’ run by the organization for which he acted as lawyer, author and contributor, Board Member and officers had involved. He had been presented with an audit and played a pivotal role in reviewing the examination of its management, methods and results, according to Mr. Eastland.
This answer steers clear of perjury without responding to the concerns being raised. It relies on a lack of recollection and is an attempt at distraction.
According to a published report in the Washington Post on May 10, 2001, the report to which Senator Hatch referred last week when he indicated that legitimate questions had been raised, David Brock told Post reporters about his effort to try to get Mr. Olson to dissuade Mr. Tyrrell from publishing an article about the death of Vince Foster.
According to the account in the Post, Mr. Olson told Mr. Brock that, “while he didn’t place any stock in the piece, it was worth publishing because the role of the Spectator was to write Clinton scandal stories in hopes of ‘shaking scandals loose.'”
In his response to Senator Hatch, Mr. Olson did not deny Mr. Brock’s account head on. Instead, he wrote that he told Mr. Brock that the article did not appear to be libelous or to raise any legal issues that would preclude its publication, and that he was not going to tell the editor-in-chief what should appear in the magazine. In his May 14, 2001, letter to Senator Hatch, Mr. Olson downplays any significance of discussions in social settings when he writes:
“It was also true that in social settings, the magazine’s editorial staff and writers spoke of the articles that they were involved in writing and publishing. I was among scores of people from time to time included in such social events, but nothing about these social discussions involved organizing, supervising or managing the project– they were simply discussions of subjects of contemporaneous interest to the magazine’s editors and writers.”
Then in his May 9, 2001, letter, Mr. Olson acknowledged:
“Your previous questions asked about contacts that I may have had with people involved in the project. My answer was and is that I had dealings with the editors of the magazine and some if its reporters and staff, some social, some in connection with legal work. This was during a time when those persons were involved in one form or another with the investigative journalistic efforts which the magazine was contemporaneously pursuing. I was, of course, aware, along with the public generally, that the magazine was writing articles about the Clintons, but I did not know that there was a special source of funding for these efforts.”
Standards Required by this Committee As I review this record and the initial nonresponsiveness, lack of recall, corrections when confronted with specifics, I am left to wonder whether these are the kind of answers Mr. Olson would give the Supreme Court if confirmed and what happened to, “absolute candor and fair dealing?” In concluding my May 4, 2001, letter to Mr. Olson
“The credibility of the person appointed to be the Solicitor General is of paramount importance. When arguing in front of the Supreme Court on behalf of the United States Government, the Solicitor General is expected to come forward with both the strengths and weaknesses of the case, to inform the Court of things it might not otherwise know, and to be honest in all his or her dealings with the Court. I expect that same responsiveness and cooperation from nominees before this Committee.”
There are basic background materials and facts that the Committee could easily obtain by means of a limited bipartisan inquiry so as to be in better position to assess whether Mr. Olson told us the whole truth, or shaded it to create a more favorable light and to leave some matters in the shadows. Certainly no Republican Committee over the last 6 years would have accepted his responses without further inquiry had they been given by a Clinton Administration nominee or representative. I recall full well the 18 month delay of David Ogden’s nomination to head the Civil Division because some thought certain of his answers less than fully forthcoming. I recall the rounds of questions and months of delay attached to another nomination when some on this Committee questioned her forthcomingness and her veracity. I recall our discussion at our Executive Business Meeting on May 8, 1997, when a nominee who had been resubmitted in January and who had completed her second confirmation hearing in two years was stalled for six more weeks while she answered round after round of written question and still she was not placed on the Committee agenda. And we were lectured by our Republican Members that, “we have an obligation to be more than a rubber stamp for the names the Administration sends over to us,” that it was entirely proper to submit rounds of written questions, and that the Committee would take up the nomination, “at an appropriate time, once the Committee has had sufficient time to properly review her nomination.”
At that time, Chairman Hatch noted that, “several of my colleagues feel some degree of frustration over the fact that many of these responses, in fact, do not really answer the question being asked.” The Chairman indicated that her, “answers do not appear to represent an effort to be as forthcoming and as candid as possible.” He explained at that time: “Now, some of my colleagues understandably take the view that they will not vote to report [the nominee] from the committee until and unless she actually answers the questions asked of her. So it is not the committee that is hiding the ball here. If anything, perhaps in the eyes of some on our side, it is [the nominee].”
And then Chairman Hatch concluded: “Now, let me just say that I am approaching this in as responsible way as I know how to do it. I have folks on my side who have legitimate questions who are legitimately concerned. I have folks on the other side who believe this is a terrific nominee and who want this nominee reported as soon as possible. I have letters from people I respect who support this nominee . . . .” That was on May 8, 1997. That nomination was not considered by the Committee until June 2, 1997 and was not considered by the Senate, after being reported favorably for the second time by this Committee, until February 1998, which was 21 months after initially being nominated.
Margaret Morrow was confirmed by the Senate when a bipartisan majority of 67 Senators finally got the chance to vote for her, after she had spent more than 7 months waiting on the Senate Executive Calendar, stalled by anonymous Republican holds. I do not use the treatment of those nominations or the scores of others over the past several years as my models. I mention them to show how far the pendulum has swung now that it is a Republican President’s nominee before us. The “investigation Congress” has folded its tent and there seems to be no interest in knowing the facts in order to be able to assess Mr. Olson’s answers. I noted at the outset of his confirmation hearing that I understand the role of a lawyer-advocate in our legal system, and I did not intend to oppose this nomination merely because of Mr. Olson’s clients and his clients’ activities. If confirmed, however, Mr. Olson’s next client will by the United States of America, all of us. I want to be sure that our nation’s top lawyer will see the truth and speak the truth to the Supreme Court and represent all of our best interests in the important matters over which the Solicitor General exercises public authority.
The responsibility of this Committee is to examine the nomination and report to the Senate in connection therewith. I do not believe that we have fulfilled our responsibility as yet. I have tried to cooperate with the Chairman to conduct the necessary inquiry but have not received the that cooperation in return. Instead of a bipartisan effort to obtain the documents and a handful of bipartisan interviews that would have been needed, we have been stalled in any such efforts over the last week.
I am delighted to see Mr. Olson’s many friends and associates writing in on his behalf. Some offer no personal knowledge of the factual matters in issue, others offer conclusions, word games and their own conclusions by way of statements. None has been subjected to questioning in a bipartisan effort to get to the truth. Nor have we yet obtained the Gibson Dunn billing records; the audit of the ‘Arkansas Project’ funds; the full Shaheen Report nor the minutes and board books from the American Spectator. The longer the production of those materials are put off the more it seems something is being hidden. Accordingly, if pressed by the Chairman to vote today, in light of our lack of effort to proceed in a bipartisan way to establish the factual record needed to evaluate Mr. Olson’s characterization of his activities, I will vote no.