Ted Olson: Getting out ahead of the storm

Tim Grieve
June 25, 2004 10:27PM (UTC)

Ted Olson, the Washington lawyer who persuaded five justices -- as if they needed persuading -- to put George W. Bush in the White House, announced his resignation Thursday as Solicitor General of the United States. In an interview with the New York Times, Olson offered a perfectly plausible explanation for his departure: "I'm at an age," he said, "where it wouldn't be bad to get back to earning a little money in the private sector."

Olson said he "loved everything" about his job as the Bush administration's top legal advocate, but the rumblings from Washington suggest otherwise. The Washington Post reports that Olson was "known inside the Justice Department to be unhappy that he was not informed about controversial memos authored by the Office of Legal Counsel on the use of harsh interrogation methods on detainees overseas." The head of that office, Jack L. Goldsmith III, announced his resignation last week.


By announcing his own departure Thursday, Olson may be hoping to head off suggestions that he resigned as a result of unfavorable Supreme Court rulings related to the torture issue. The Supreme Court will likely issue its decisions next week in cases involving "enemy combatants" Jose Padilla and Yaser Hamdi and the detainees being held at Guantanamo Bay. Justice Department lawyers are braced for what Newsweek calls a "crushing defeat" in those cases, so much so that they're scrambling to find alternative theories for keeping Padilla in prison.

Olson seemed to acknowledge, albeit obliquely, that he was getting out ahead of the storm. He told the Post he wanted to announce his resignation before the court issues its final decisions of the term because it's "going to be a big deal next week."

Olson's early departure may keep him off the hook, but it may not help the Bush administration. To avoid an election-year confirmation fight over a permanent replacement for Olson, Bush will likely go with a temporary, acting Solicitor General. The early favorite: Paul D. Clement. Clement is the deputy solicitor general and right-wing wunderkind who told the Supreme Court in April that the Bush administration doesn't engage in "torture or that sort of thing." Hours later, CBS aired the first photos from Abu Ghraib, and the flurry of revelations about administration memos on torture soon followed.


Rep. John Conyers has called for investigation into whether Clement intentionally misled the Supreme Court, and that question will dog him --- and Bush -- in the days ahead. Of course, if Clement is allowed to replace Olson, either temporarily or permanently, it won't be the first time that the White House has rewarded a Justice Department lawyer tainted by the torture scandal. Jay Bybee is the Justice Department lawyer who signed the memo advising that torturing al-Qaida suspects "may be justified." Bush appointed him to the federal bench.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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