The first Ted Olson scandal

At the time the report was released, Olson decried the personal cost of the investigation. The ordeal, he said, was "an extremely difficult burden to undergo, particularly for such a long time. The cost of that emotionally, financially and psychologically is enormous."

Others decried what they saw as the criminalization of policy differences. "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," declared Jacob Stein, Dinkins' attorney and himself a former independent counsel.

However, Olson still has never adequately explained his questionable counsel to Reagan -- particularly the false assertion that the documents contained no evidence of wrongdoing -- since that fell outside of Morrison's purview. In general he has tried to rewrite the history of that episode. In a 1985 interview with Legal Times, Olson airily dismissed Burford's view of the EPA fiasco: "The idea that we were interested in a test of executive privilege is silly," he said. As for his critics, Olson sniffed that they were "prone to hyperbole and irresponsible statements."

Olson's retelling of the episode to the Legal Times was somewhat at variance with the reality as well. He said EPA officials approached the Justice Department about withholding the documents, and claimed Burford only expressed reluctance about limiting access to the documents "months after the executive privilege had been claimed," and even then it was just to shed the spotlight.

However, the scandal and ensuing investigation apparently did little to harm Olson's subsequent career. He represented Reagan during the Iran-Contra scandals, and continued to build a reputation as a skilled litigator. In recent years, Olson's attention has turned to such conservative causes as defending Virginia Military Institute's attempts to keep women from enrolling at the school and overturning affirmative-action rules at the University of Texas law school.

But Olson's activities have revolved with a striking avidity around the pursuit of Bill Clinton. So naturally, the subject of Olson's relatively recent involvement in the Clinton scandals was the focus of much of the questioning he faced during his confirmation hearings in April before the Senate Judiciary Committee. Several senators wondered if his partisan past would color his conduct as a key presidential advisor.

When Sen. Jeff Sessions, R-Ala., asked whether he would be able to deliver advice to the president that might be contrary to his agenda, Olson himself brought up his involvement in the executive-privilege attempt in the 1980s. Referring to his experience with Anne Burford, he replied: "I did have experience as assistant attorney general, as you know, in the Office of Legal Counsel. One of the responsibilities of the person holding that position frequently is to say no to the White House or to other parts of the executive branch. It's never pleasant to do that, but --"

He went on: "One of the things that I learned when I was serving in the Justice Department before, that it's exceedingly important for the president for other officials in the Justice Department and in the executive branch to give some people in the administration the responsibility and the burden of calling them as closely as they can call them with respect to what the law is and what the law can permit, and as best as possible, to set aside policy considerations and to be willing to say no."

Olson's actual record in that period raises doubts about even this answer. His single-minded effort to assert executive privilege actually overlooked what the law permitted, and it wound up costing President Reagan dearly. One is only left to wonder what dubious legal tangles he has in store for President Bush's agenda.

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