Independent Counsel Explains Why She Didn’t Prosecute Figure in ’83 EPA Probe

Former Justice Department official Theodore B. Olson was “not always forthcoming,” but gave “literally true” testimony before Congress in the 1983 investigation of the Environmental Protection Agency, an independent counsel said Monday in explaining why she decided against prosecuting him last summer.

In an unusually defensive report on her nearly three-year probe, counsel Alexia Morrison said much-criticized delays in the case, which focused on testimony given six years ago, “were not of our making.”

Morrison noted that her investigation raised the issues in which the Supreme Court upheld the constitutionality of independent counsels and that her inquiry remained on hold during the 14 months required to resolve the constitutional challenge.

Attorney Condemns Tactics

But Jacob A. Stein, attorney for one of the principals in the case and himself a former independent counsel, condemned Morrison’s tactics and said the investigation should have taken no more than six months.

“The example of Mr. Olson could understandably chill the enthusiasm of any man or woman who would otherwise wish to be involved in public service,” said Stein, who conducted a 1984 investigation of former Atty. Gen. Edwin Meese III.

Olson, partner in charge of the Washington office of the Los Angeles law firm of Gibson, Dunn & Crutcher, said Morrison’s probe was “an extremely difficult burden to undergo, particularly for such a long time. The cost of that emotionally, financially and psychologically is enormous.”

At issue was Olson’s March 10, 1983, testimony as assistant attorney general before the House Judiciary subcommittee on monopolies and commercial law. The House was investigating allegations that the Justice Department improperly claimed “executive privilege” to block Congress from receiving EPA records relating to alleged misconduct by officials in the Superfund program.

Superfund Official Convicted

The controversy over EPA conduct helped prompt the ouster of EPA Administrator Anne McGill Burford, and Superfund director Rita M. Lavelle was later convicted of lying to Congress.

Morrison’s report, released Monday by the U.S. Court of Appeals’ special panel that oversees independent counsels, found that Olson’s testimony did not obstruct an investigation by the House Judiciary Committee into the executive privilege assertion over the EPA documents.

The report found that Olson’s testimony, “while not always forthcoming, was in our view literally true--and hence not subject to prosecution . . . . “

Morrison also said there was no evidence that Olson took part in any conspiracy to obstruct the Judiciary Committee’s inquiry.

Morrison, in the report, acknowledged that her investigation was not concluded until more than five years and five months after Olson’s 1983 testimony. “An examination of the record clearly reveals that the delays encountered along the way were not of our making,” she said.

Voluminous Record Cited

She noted that her appointment came more than 38 months after Olson’s testimony and that, by then, a voluminous record had been compiled by the House Judiciary Committee and the Justice Department’s public integrity section, which conducted an initial inquiry into the matter.

The inquiry then was delayed for five months by Morrison’s unsuccessful attempt to expand it to two other former Justice Department officials, Edward C. Schmults and Carol E. Dinkins, and for 14 months to settle the issue of her office’s constitutional standing.

“Thus, of the more than 65 months between Mr. Olson’s testimony and our announcement of the decision not to prosecute him, a total of slightly more than nine months represented the unhindered operation of our investigation,” Morrison said.

Stein, who represented Dinkins in the case, said in a response included in the report that Morrison’s inquiry differed from all other independent counsel inquiries because it did not involve “an element of personal gain or actions outside the scope of duty.” As such, it set “a harmful and unwholesome precedent,” he said.

“Public officials discharging their official duties were threatened with a criminal charge, which in reality was based on a political controversy or a separation of powers dispute,” Stein said.

He estimated that the investigation cost more than $1 million. Olson already has asked the special court to reimburse him for his defense bill of significantly more than $1 million.