Independent Prober Picked in EPA Case

A federal appeals court panel named an independent counsel today to investigate allegations that former Assistant Atty. Gen. Theodore Olson made false statements regarding the withholding of EPA documents from Congress in 1982 and 1983.

The appointment of veteran Washington trial lawyer James McKay to oversee the inquiry came at the request of Atty. Gen. Edwin Meese III, who sought a Watergate-style special prosecutor under the Ethics in Government Act.

Meese’s request, based on the results of a number of preliminary FBI investigations, appeared to fall far short of meeting the demands of the House Judiciary Committee, which had sought an inquiry into as many as a dozen present and former Administration lawyers.

The others implicated by a 1,284-page Judiciary Committee report last December--including deputy White House counsel Richard A. Hauser--apparently have been cleared of criminal wrongdoing.

‘Executive Privilege’

Olson was a pivotal figure in the 1983 controversy in which President Reagan exerted a claim of “executive privilege” in refusing to turn over Environmental Protection Agency files to Congress. The committee found that he misled Reagan in recommending a privilege claim, falsely stating that EPA Administrator Anne McGill Burford supported withholding files on the agency’s Superfund toxic waste cleanup program.

McKay was asked to determine whether Olson, former head of the Justice Department’s Office of Legal Counsel, made false statements in 1983 testimony to a Judiciary subcommittee investigating the use of the privilege claim.

The order of a special three-judge division of the appeals court, filed Wednesday and made public today, also directed McKay to investigate “any other allegation or evidence of violation of any federal criminal law . . . developed during investigations.”

It instructed McKay to, “if warranted, prosecute” Olson if there is evidence that he lied to the subcommittee.

If found guilty, Olson could face up to five years in prison and a $10,000 fine.