S5578 CONGRESSIONAL RECORD — SENATE May 24, 2001 they don’t have to work two or three Mr. HATCH. Mr. President, as you undeniably distinguished career as an obvi- jobs to try to make end’s meet. know, we have been trying to make ously exceptional with an enormous There is an important agenda ahead sure that the Justice Department has breadth of directly relevant experience. of us. I have touched on only a few its full complement of leaders because I have known Laurence Tribe for a items I hope we will consider. Now that if there is a more important Depart- long time. I have a great deal of re- we have this change in leadership in ment in this Government, I don’t know spect for him. I do not always agree the Senate, it is important we address which one it is. There may be some with him, but one time he asked me to it on a bipartisan basis. It is a unique that would rate equally but that De- review one of his books. Looking back day in the history of the Senate. It is partment does more to help the people on that review, I was a little tough on a unique challenge to all to rise above of this country than any other Depart- Larry Tribe to a degree. But I spent partisanship and put our country first. ment. time reading his latest hornbook just I yield the floor and suggest the ab- One of the most important jobs in this last week, read it through from be- sence of a quorum. that Department is the Solicitor Gen- ginning to end—I think it was some- The PRESIDING OFFICER. The eral’s job. The Solicitor General is the thing like 1,200 pages—it was very dif- clerk will call the roll. attorney for the people. He is the at- ficult reading, and I have to say I came The legislative clerk proceeded to torney for the President. He is the at- away after reading that hornbook with call the roll. torney for the Department. He is the a tremendous respect for the legal ge- Mr. WARNER. Mr. President, I ask attorney who is to argue the constitu- nius of Larry Tribe. unanimous consent that the order for tional issues. He is the attorney who Although I disagree with a number of the quorum call be rescinded. really makes a difference in this coun- his interpretations of constitutional law, there is no doubt about the genius The PRESIDING OFFICER. (Mr. try and who makes the primary argu- and effectiveness of this man, and I BUNNING). Without objection, it is so ments before the Supreme Court of the think it is a tribute to him that he was ordered. United States of America. willing to stand up for Ted Olson and f In addition, he has a huge office with a lot of people working to make sure write it in a letter. Walter Dellinger is the former Clin- RECESS this country legally is on its toes. ton Solicitor General. He is one of the Mr. WARNER. Mr. President, on be- In the case of Ted Olson, I am very great of this country. He is a half of the majority leader, TRENT pleased that we are able to have this liberal and some thought he was ex- LOTT, I ask unanimous consent that motion up at this time. I am pleased tremely partisan, although I ques- the Senate stand in recess until the that we have colleagues with good tioned that personally, just like I ques- hour of 1 o’clock. faith on the other side who are willing tion those who say Ted Olson is par- There being no objection, at 12 noon, to see that this is brought to a vote tisan. No question that Walter the Senate recessed until 1:02 p.m., and today because we should not hold up Dellinger is a very strong and positive reassembled when called to order by the nomination for the Solicitor Gen- Democrat, a very aggressive Democrat. the Presiding Officer (Mr. BUNNING). eral of the United States of America. But he also is a man of great intel- The PRESIDING OFFICER. In my We have had all kinds of Solicitors General. We have had some who have ligence and integrity. capacity as a Senator from , I On February 5, 2001, Mr. Dellinger been very partisan but have been great suggest the absence of a quorum. The said that when Olson served in the Jus- Solicitors General, and we have had clerk will call the roll. tice Department as the head of the Of- some who have hardly been partisan at The legislative clerk proceeded to fice of Legal Counsel, he ‘‘was viewed call the roll. all and have been weak Solicitors Gen- as someone who brought considerable Mr. LOTT. Mr. President, I ask unan- eral. We have had some not very par- integrity to the decisionmaking.’’ imous consent that the order for the tisan at all who have been great Solici- Virtually everybody who worked quorum call be rescinded. tors General. You would have to make with Ted Olson at the Office of Legal The PRESIDING OFFICER. Without an analysis yourself to determine how Counsel—in fact, all that I know of— objection, it is so ordered. your own personal philosophy fits. said he was a man of integrity who f But in terms of some great ones, called them the way he saw them, who there was , who was EXECUTIVE SESSION abided by the law and did not allow never known for conservative politics. partisan politics to enter into any Mr. LOTT. Mr. President, I ask unan- He was not very partisan by most Re- thinking. There are two offices where imous consent that the Senate proceed publicans’ standards, but he turned out partisan politics could work to the det- in executive session. to be an excellent Solicitor General of riment of our country. The PRESIDING OFFICER. Without the United States. We could go on and One is the , objection, it is so ordered. on. which he handled with distinction, f But let me just say this, that it is in- with ability, with fairness, in a non- teresting to me that Ted Olson has the NOMINATION OF THEODORE partisan way. The other is the Office of support of some of the leading attor- the Solicitor General, which I assert to BEVRY OLSON, TO BE SOLICITOR neys and law professors in this country GENERAL OF THE UNITED this body he will handle in the same who have the reputation of being ac- nonpartisan way. He will certainly try STATES—MOTION TO DISCHARGE tive Democrats. to do what is constitutionally sound Mr. LOTT. Mr. President, pursuant Let me just mention a few. And I and right. And he will represent the to the provisions of S. Res. 8, I now really respect these gentlemen for Congress of the United States in these move to discharge the Judiciary Com- being willing to come to bat for Ted battles. He may not always agree with mittee of the nomination of Ted Olson, Olson. Laurence Tribe, the attorney for the Congress of the United States when to be Solicitor General of the United former Vice President Gore, in Bush v. we are wrong, but you can at least States. Gore, on March 5, 2001, said: count on him doing what is right and The PRESIDING OFFICER. Under It surely cannot be that anyone who took trying to make the best analysis and the provisions of S. Res. 8, the motion that prevailing view— do what he should. is limited to 4 hours of debate, to be He is referring to Bush v. Gore— Now, is a former Clinton equally divided between the two lead- and fought for it must on that account be op- White House counsel and Reagan De- ers. posed for the position of Solicitor General. partment of Justice, Office of Legal Mr. LOTT. Mr. President, I note that Because Ted Olson briefed and argued his Counsel attorney. Beth is a consider- the chairman of the Judiciary Com- side of the case with intelligence, with in- able Democrat, and she is someone I re- sight, and with integrity, his advocacy on mittee, Senator HATCH, is here and spect. We have had our differences, but the occasion of the Florida election litiga- ready to proceed. Therefore, I yield the tion, as profoundly as I disagree with him on I have to say that she deserves respect. floor. the merits, counts for me as a plus in this In a September 25, 1987, letter signed The PRESIDING OFFICER. The Sen- context, not as a minus. If we set Bush v. by other Department of Justice law- ator from Utah. Gore aside, what remains in Ted’s case is an yers she had this to say:

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY May 24, 2001 CONGRESSIONAL RECORD — SENATE S5579 We all hold Mr. Olson in a very high profes- want good government, people who Olson misled or was less than truthful sional and personal regard because we be- want the best of the best in these posi- to the committee anyway. Rather, lieve he made his decisions with integrity tions at the Justice Department, ought they show him to be forthright and after long and hard reflection. We cannot re- to vote for Ted Olson regardless of honorable. call a single instance in which Mr. Olson Although I have not seen any dis- compromised his integrity to serve the expe- their political affiliation, regardless of dience of the Reagan administration. the fact that Ted Olson handled Bush crepancies or inconsistencies in Mr. Olson’s testimony and answers, I have That is high praise coming from Beth v. Gore and won both cases before the tried to respect the concerns of other Nolan, a strong Democrat who has Supreme Court—something that some members of this committee and joined served both in the White House Coun- of my colleagues bitterly resent. They the distinguished ranking Democratic sel’s office and at Justice in the office should vote for him regardless of the member in looking further into this of Legal Counsel. fact that, yes, he has been a strong Re- One of the most esteemed first publican—some think too partisan of a matter and asking further clarifying amendment lawyers in the country, a Republican. But he has a reputation of questions from the Office of the Inde- strong Democrat, one of the men I being a person who calls them as he pendent Counsel. We look into some in- most respect with regard to first sees them, an honest man of integrity. sinuations against Mr. Olson con- amendment interpretations and first This is backed up by these wonderful cerning his involvement with the Ar- amendment constitutional challenges, Democratic leaders at the legal bar, kansas Project and his legal represen- is Floyd Abrams—again, I submit, a Laurence Tribe, Walter Dellinger, Beth tation of David Hale. In order to verify Mr. Olson’s state- liberal Democrat. Nolan, Floyd Abrams, Harold Koh, On March 4, 2001, he had this to say Robert Bennett, just to mention six ments, the committee has had access about Ted Olson: terrifically strong Democrats. If any- to a great volume of materials, includ- I have known Ted since we worked to- body wants to know, they ought to lis- ing all relevant portions of the Sha- gether on a Supreme Court case, Metro ten to people in the other party who heen Report that could be provided by Media v. San Diego, 20 years ago. I have al- have every reason to be partisan on law, letters from key individuals in- ways been impressed with his talent, his per- nominations in some ways, but who are volved with the , and sonal decency, and his honor. He would serve not allowing partisanship to enter into just yesterday, at Senator LEAHY’s re- with distinction as a Solicitor General. hurting the career or hurting the op- quest, a copy of David Hale’s testimony This is one of the greatest lawyers in portunity of Ted Olson to serve as So- at another trial, and more information the country, a man of distinction him- licitor General. from the Office of Independent Counsel. self who has great judgment, who is a I personally know Ted Olson. I have These together simply confirm Mr. leading trial lawyer in this country. known him for many years. I have seen Olson’s statements and show that there And that is what Floyd Abrams had him courageously take on client after is no need for additional investiga- to say about Ted Olson. client across the ideological spectrum tions. These are all Democrats. How about and do a great job in each case for his Now, I would like to relate some of Harold Koh, former Clinton adminis- clients. This is an exceptional lawyer. my findings in investigating the record tration Assistant Secretary of State. He is one of the exceptional people in and alleged inconsistencies. With re- On February 28, 2001, he had this to our country. He has the capacity and gard to the Arkansas Project, Mr. say: the ability to be a great, and I repeat Olson repeatedly stated that he learned Ted Olson is a lawyer of extremely high great, Solicitor General of the United about the project while he was a mem- professional integrity. In all of my dealings States. He is respected by the Supreme ber of the board of directors and that with him I have seen him display high moral Court before whom he has appeared at he did not know about it prior to his character and a very deep commitment to service on that board. He also consist- unholding the rule of law. least 15 times. And for those who might not remem- ently stated that he learned of the That is high praise from a former ber, he was the attorney for George W. project in 1997. In an early response he Clinton administration high-level em- Bush in Bush v. Gore, and made two ar- stated that he became aware of it in ployee. All of these are Democrats, guments before the Supreme Court, ‘‘1998, I believe.’’ He later clarified that leading Democrats, some partisan both of which he handled with dex- it was in 1997 and has consistently Democrats, but who have found Ted terity, with skill, with decency, and maintained that he learned of the Olson to be a man of honor and integ- with intelligence. project in 1997. Each of the quotations rity. I have to say he deserves this job, he used by Senator LEAHY in his so-called One of the greatest lawyers in the deserves not having people play poli- ‘‘summary of discrepancies’’ confirms country is Robert Bennett, attorney tics with this position. In my opinion, this fact and does not provide, despite for former President Clinton. Robert he will make a great Solicitor General the title of the document, any real dis- Bennett is known by virtually every- of the United States. Let me just dispel crepancies in Mr. Olson’s testimony. body in this body for having been an some of the allegations surrounding Key individuals intimately involved independent counsel himself, and hav- this nomination and explain why I be- with the Arkansas Project have writ- ing done his jobs with distinction. No- lieve further delay is unwarranted. ten letters to the committee con- body doubts he is one of the greatest First, there have been allegations firming Mr. Olson’s account of events. lawyers in this country. Nobody doubts that Mr. Olson has misled the com- These individuals include James Ring that the two Bennett brothers are per- mittee concerning his involvement in Adams, Steven Boynton, Douglas Cox, sonalities about as compelling as you something called the Arkansas Project Terry Eastland, David Henderson, Mi- can find. and his representation of David Hale. chael Horowitz, Wladyslaw Well, Robert Bennett happens to be a Let me say that I listened to my col- Pleszczynski, and R. Emmett Tyrell. Democrat, and a leading Democrat, one leagues on the committee when the From their different positions, each of the great attorneys in this country. Washington Post article first appeared, person corroborates the fact that Mr. And here is what the attorney for and delayed a vote, against my better Olson was not involved with the origi- former President Clinton had to say on judgment actually, until we weighed nation or management of the Arkansas May 15, 2001: the allegations because it was fair to Project. R. Emmett Tyrell, the editor- While I do not have any personal knowl- do so. in-chief of the magazine, stated un- edge as to what role if any Mr. Olson played My colleagues wanted that, they de- equivocally that Mr. Olson’s state- in the Arkansas Project or the full extent of his relationship with the American Spec- served that, and we delayed it so we ments with regard to his involvement tator, what I do know is that Ted Olson is a could weigh those allegations. Then I with the project are ‘‘accurate and truth teller and you can rely on his represen- took several days and extensively re- thus truthful.’’ tations regarding these matters. He is a man viewed the testimony during the hear- Terry Eastland, former publisher of of great personal integrity and credibility ings, his answers to written questions, , conducted a and should be confirmed. and his subsequent letter. I am con- review of the project and stated he I am submitting to this body that vinced that those responses showed no ‘‘found no evidence that Mr. Olson was people of good will, that people who inconsistencies or evidence that Mr. involved in the project’s creation or its

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All of them And if the Shaheen Report was not And I know that Democratic staff have are consistent with his testimony, and sufficient, Senator LEAHY requested a interviewed Mr. Brock. they are not rebutted by any other transcript of David Hale’s testimony at I believe that the extensive and deci- credible evidence. the trial of Jim Guy Tucker and Jim sive record before us shows that Mr. Mr. President, let me summarize for and Susan McDougal, apparently be- Olson has been truthful and forthright my colleagues. We have Mr. Olson’s cause of accounts of that testimony in on all counts. sworn testimony along with the state- and Gene Lyons’ book, The facts and conclusions I have just ments of key players in the project and ‘‘The Hunting of the President.’’ The discussed—that there are no discrep- numerous letters by Democrats and Office of the Independent Counsel has ancies between Ted Olson’s statements Republicans who praise Mr. Olson’s in- graciously made David Hale’s trial and Senator LEAHY’s allegations—beg tegrity and honesty, against the luke- transcript available to the committee the question: What is all this fuss real- warm allegations of one former staffer in response to Senator LEAHY’s May 14, ly about? who has recently backed away from his 2001 letter. A review of the transcript Perhaps it is because some may be- remarks. Even if Mr. Brock’s factual clearly shows further that Mr. Olson’s lieve that Mr. Olson is too partisan to allegations were true, they do not con- testimony was accurate. serve as the Solicitor General. Nothing tradict Mr. Olson’s testimony. In the transcript, David Hale testi- could be further from the truth. Ted Now the second possible allegation fied that Ted Olson was retained to Olson’s career has been as broad as it against Mr. Olson is that, contrary to represent him before a congressional has been deep. Mr. Olson has advocated his testimony, he might have received committee. When asked, ‘‘Who pays for a wide variety of organizations and payment for his representation of Mr. Olson to represent you?’’ Mr. Hale has associated with people of many dif- David Hale. Mr. Olson has repeatedly replied, ‘‘I do.’’ Mr. Hale did not say ferent political ideologies. While it is true that Mr. Olson has answered questions about this rep- that he or anyone on his behalf actu- performed legal work for the conserv- resentation. He testified that he re- ally paid Mr. Olson. ative American Spectator, to focus my- ceived no money for this representa- The transcript of the trial is fully opically on that is to ignore Mr. tion, although he had expected to be consistent with Mr. Olson’s testimony Olson’s distinguished work for many paid. regarding the Hale representation— Then in a letter of May 9, 2001, in re- namely that he never received payment other media organizations including sponse to further questions, he again for the representation, that Mr. Hale , , Times-Mirror, the stated that he received no payments intended to pay for these services, and Times, Dow Jones, LA magazine, NBC, for his representation of David Hale. that no one else was responsible for the ABC, CNN, Fox, Time-Warner, He wrote, ‘‘Neither I nor my firm has payments. Mr. Hale also testified that Newsday, Metromedia, the Wall Street been compensated by any other person he first contacted Mr. Olson in 1993 in Journal, and Newsweek. What does this or entity for those services—although I connection with a possible congres- list show about Ted Olson? Is this the am not aware of any legal prohibition sional subpoena, and that Olson did kind of clientele that would seek after against another person or entity mak- represent him in 1995–1996. Mr. Olson a single-issue zealot? No way. This list ing such a payment.’’ He have this re- wrote in his letter (May 9, 2001) that he demonstrates clearly that smart people port and I urge my colleagues to read was ‘‘ultimately engaged by Mr. Hale with a variety of views on public mat- it. I have extra copies of this and other and undertook that representation ters turn to—and trust—Ted Olson. recent material with me, if any col- sometime in late 1995 or early 1996.’’ Similarly, it is possible to pay too league cares to further review it. Thus, with regard to David Hale, much attention to one person’s appar- Now, I have seen no, let me repeat, there is no evidence from any source ent dissonant opinion when there is a no evidence suggesting this testimony that Mr. Olson received payment for chorus of other harmonized voices. is not accurate. Mr. Olson responded to this representation. Mr. Olson’s testi- Now, I have to concede that Ted questions about these issues at his mony, David Hale’s testimony, the Olson’s supporters include a lot of well- hearing and in three sets of written Independent Counsel report, and review known partisans. questions—each time his answers have of the matter by two former federal For example, President Clinton’s been clear and consistent. judges all confirm that Mr. Olson re- lawyer, Bob Bennett, said that ‘‘Ted But you don’t just have to take Mr. ceived no payment for his brief rep- Olson is a truth-teller’’ and he is ‘‘con- Olson’s word for it. His answers are resentation of David Hale. I should also fident that [Ted Olson] will obey and clearly supported by the conclusions note that we send further questions on enforce the law with skill, integrity reached by Mr. Shaheen and reviewed this matter to the Office of the Inde- and impartiality.’’ A similar sentiment independently by two respected retired pendent Counsel, whose responses have was expressed by President Clinton’s federal judges. Under a process jointly been completely consistent with Mr. White House Counsel, Beth Nolan. And approved by the Independent Counsel Olson’s testimony. Vice President ’s lawyer, Lau- and Attorney General Janet Reno, Mr. Again, let me say that I appreciated rence Tribe, has publically announced Shaheen was appointed to review the and respected the need for members of his support for Ted Olson’s confirma- allegations concerning alleged pay- this committee to satisfy themselves tion as Solicitor General. Floyd ments to David Hale. about the integrity of executive branch Abrams, who has known Ted Olson for In order to get all the facts, Mr. Sha- nominees. That is why I had delayed an 20 years, and who is no right-wing con- heen was given authority to utilize a initial committee vote. The committee spirator, said he has ‘‘always been im- grand jury to compel production of evi- had ample opportunity to verify the pressed with [Ted Olson’s] talent, his dence and testimony. In addition, an- statements of Mr. Olson—no discrep- personal decency and his honor.’’ Presi- other important element of this inde- ancies have appeared, nor is there any dent Clinton’s Assistant Secretary of pendent review process was that the re- credible evidence to refute any part of State for Democracy, Human Rights sults of the investigation were to re- his testimony. and Labor, Harold Koh, called Ted ceive a final review—not by the Inde- We have the statements of individ- Olson ‘‘a lawyer of extremely high pro- pendent Counsel or Attorney General uals involved with the Arkansas fessional integrity.’’ And William Web- Reno—but by two former federal judges project. Staff members of the com- ster said Ted Olson is ‘‘honest and Arlin Adams and Charles Renfrew. At mittee have been able to view the Sha- trustworthy and he has my full trust.’’ the conclusion of their review, they heen report and the trial testimony of These names demonstrate that Ted issued a statement on July 27, 1999, in David Hale. I know that internal infor- Olson’s experience, character and asso- which they concurred with the conclu- mation has been requested from the ciations have a tremendous breadth sions of the Shaheen Report that American Spectator magazine, but I and depth. It is time for this body to do ‘‘many of the allegations, suggestions am concerned that such demands may the right thing and favorably vote to and insinuations regarding the ten- tread on precious first amendment pre- confirm Mr. Olson as the Solicitor Gen- dering and receipt of things of value rogatives of the press that we should eral.

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There Mr. Olson’s nomination to set the Olson’s sworn testimony and the writ- simply is no ‘‘there’’ there. record straight. ten communications of the key players As I have noted before, we are at a First, there has been repeated insinu- in the Arkansas Project comes from period where we need to rebut the ation and accusation that Mr. Olson , a former writer for the public’s beliefs that we only engage in has misled the committee concerning American Spectator, who in last politics and don’t care about the mer- his involvement with the so-called Ar- Wednesday’s New York Times, ap- its of nominee qualifications. We need kansas Project and his representation peared to tone down his original ac- to gain the public’s trust in our gov- of David Hale. count, saying, ‘‘It was my under- ernment back. I am deeply concerned I, responding to concerns by some standing that all of the pieces dating that what has been happening here Democrats, listened and delayed the back to 1994 that dealt with inves- might appear to be an effort to paint vote May 10 until the committee re- tigating scandals pertaining to the Mr. Olson’s occasional political in- viewed the record and weighted the al- Clintons, particularly those that re- volvement as the entirety of his career legations. lated to his time in Arkansas, were all and character, and as reported in the Since the Washington Post story under the Arkansas Project.’’ He did press, possibly as retribution for the broke, I and my staff have extensively not say that he was sure, or that Mr. man who argued and won the Supreme reviewed Mr. Olson’s testimony during Olson knew about the project. Indeed, Court case in Bush v. Gore. his hearing, his answers to writen ques- on a television program last Thursday Now, I don’t think that that is true. tions, and his subsequent letters. I am evening, Mr. Brock said he had no spe- I know my colleagues and respect their convinced that these responses show no cific recollection about speaking spe- views. But, I hope that we can begin inconsistencies or evidence that Mr. cifically about the Arkansas Project in debating the merits of this nomination Olson misled or was less than truthful the presence of Mr. Olson. and take all of the support and testi- to the committee in any way. Rather Moreover, Mr. Brock apparently sug- mony on this man’s obvious and over- they show him to be forthright and gested to one paper that James Ring whelming qualifications and his high honest. Adams would have a similar view, But integrity into account as we determine In order to verify Mr. Olson’s state- Mr. Adams, one of the lead writers for our votes for his confirmation. ments, the committee has had access the project, wrote the committee that Mr. President, I urge my colleagues to a great volume of materials, includ- ‘‘Mr. Olson had absolutely no role in to judge the record. Judge the man for ing all relevant portions of the Sha- guiding my development of stories for his qualifications and integrity. And I heen Report that could be provided by the magazine or in managing my urge my colleagues to listen to Law- law, letters from key individuals in- work.’’ rence Tribe, to , to read the volved with the Arkansas Project, and So, we have Mr. Olson’s sworn testi- Shaheen report and responses from the at Senator LEAHY’s request, a copy of mony along with the statements of key Office of the Independent Counsel, to David Hale’s testimony at another players in the project and numerous listen to Robert Bennett—President trial. letters by Democrats and Republicans Clinton’s lawyer, to everyone who has We have had access to more material who praise Mr. Olson’s integrity and worked with and known Ted Olson. I from the Office of the Independent honesty, against the luke-warm allega- urge you to vote to confirm our next Counsel, a number of questions that tions of one former staffer who has re- Solicitor General. Senator LEAHY and I jointly asked that cently backed away from his remarks. Mr. President, let me say a few words office and have received the responses. Even if Mr. Brock’s factual allegations about Mr. Olson’s qualifications. All of these material, and the over- were true, they do not contradict Mr. Ted Olson is one of the most qualified whelming evidence already on the Olson’s testimony. people ever nominated to be Solicitor record, continue to support Mr. Olson’s The other allegation against Mr. General. He has had an impressive 35- veracity and complete candor before Olson is that, contrary to his testi- year career as a lawyer—including four the committee. There are none, nor has mony, he might have received payment years as the Assistant Attorney gen- there been, any specific evidence sup- for his representation of David Hale. eral in charge of the Justice Depart- porting allegations against Mr. Olson. He testified that he received no money ment’s Office of Legal Policy under Key individuals intimately involved for this representation, although he . with the Arkansas Project have writ- had expected to be paid. The job of the Solicitor General is to ten letters to the committee con- There is no evidence suggesting this make litigation policy decisions. The firming Mr. Olson’s account of events. testimony is not accurate. Mr. Olson Solicitor General represents the United A host of respected and distinguished responded to questions about these States in all cases before the United lawyers, judges, private and public fig- issues at his hearing and in three sets States Supreme Court, and it is up to ures who have worked with Ted Olson of written questions—each time his an- the Solicitor General to approve all ap- have written in and/or called the com- swers have been clear and consistent. peals taken by the United States from mittee with their support for Mr. His answers are clearly supported by adverse decisions in the lower federal Olson’s nomination and have vouched the conclusions reached by Mr. Sha- courts. It is important to have a skill- for his integrity and candor. These in- heen and reviewed independently by ful and competent advocate in that po- clude the two respected attorney’s who two respected retired federal judges. sition. argued against Mr. Olson in each of the Under a process jointly approved by Ted Olson has argued 15 cases in the two Supreme Court arguments in Bush the Independent Counsel and Attorney U.S. Supreme Court. For most lawyers, v. Gore. General Janet Reno, Mr. Shaheen was a single Supreme Court argument From their different positions, each appointed to review the allegations would be considered the zenith of their person corroborates the fact that Mr. concerning alleged payments to David career. Olson as not involved with the origina- Hale. At the conclusion of their review, Ted Olson has a reputation for con- tion or management of the Arkansas they issued a statement noting ‘‘many sidering all viewpoints before making Project. R. Emmett Tyrell, the editor- of the allegations, suggestions and in- decisions. Walter Dellinger, who served in-chief of the magazine, stated un- sinuations regarding the tendering and as acting Solicitor General under equivocally that Mr. Olson’s state- receipt of things of value were shown President Clinton, told the Washington ments with regard to his involvement to be unsubstantiated or, in some Post that, ‘‘If Ted runs the SG’s office with the project are ‘‘accurate and cases, untrue.’’ I released the redacted the way he ran OLC, he will give def- thus truthful.’’ Terry Eastland, former portion of this Shaheen report which erence to views other than his own in publisher of the American Spectator, relates to Mr. Olson to the public. Read making his final decision.’’ conducted a review of the project and the report and its conclusions—and the Ted Olson’s Supreme Court argu- stated he ‘‘found no evidence that Mr. Independent Counsel’s responses to the ments concerned issues of great impor- Olson was involved in the project’s cre- numerous questions we have sent him tance to our country, including limits ation or its conduct.’’ regarding the report—it speaks for on excessive jury verdicts, the effect of

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S5582 CONGRESSIONAL RECORD — SENATE May 24, 2001 statutes of limitations, caps on puni- ing a vote up or down on his nomina- I told Attorney General Ashcroft—in tive damages, the meaning of the Fed- tion. In fact, I say to my friend, the fact, I told him earlier today— we in- eral False Claims Act, racial and gen- distinguished chairman of the Senate tend to move these forward. We are der classifications, and whether tele- Judiciary Committee, that we also moving forward most of the nomina- communications companies must pro- have before us the nominations of Mr. tions in the Department of Justice a vide surveillance capabilities to law Dinh to be head of the Office of Policy lot faster than they were 4 years ago in enforcement agencies. Development of the Justice Depart- the Clinton administration by the In addition to his role representing ment and Mr. Chertoff to be head of the same Senate but under different con- clients, Ted Olson has also worked to Justice Department’s Criminal Divi- trol. reform our civil justice system by writ- sion. I am perfectly agreeable to roll- I hope this may be an indication that ing and speaking on various topics, and call votes on them, too, and will, to no- things will move forward on their mer- he helped advise the government of tify Senators, vote for them as I did in its and not on partisanship. I urge all Ukraine on drafting a new Constitution committee. Of course, that is some- Senators who wish to debate to come in the mid-1990’s. thing that has to be scheduled. to the floor without delay and partici- Ted Olson also has superb academic Mr. HATCH. Will the Senator yield? pate. qualifications. He graduated from the Mr. LEAHY. Yes. After the motion to discharge and Boalt Hall School of Law at the Uni- Mr. HATCH. I, for one, am grateful proceed to the nomination, I expect the versity of California at Berkeley, because they are good people. I missed Senate will proceed to vote promptly where he earned a spot in the pres- what the Senator said. He wants to on the Olson nomination. I know Sen- have a vote? tigious Order of the Coif and was a ator LOTT and Senator DASCHLE have Mr. LEAHY. I want to have a vote on member of the law review. been working toward that goal. I agree all three of these. I realize that is en- I have no doubt that Ted Olson will tirely up to the body. I am perfectly with them on it. prove to be one of the best Solicitor willing to have votes on all three of I will, however, express, as every Generals our country has ever had. them. I point out, with respect to Mr. Senator has a right to express his or Given the extraordinary quality of the Dinh and Mr. Chertoff, I voted for them her feelings towards or against each of people who have held that post, this is in committee, even though, as every- these three nomination nominees, why no small compliment. body knows, they are very conservative I will vote against Ted Olson. With that, I yield the floor and sug- Republicans and were heavily involved The Solicitor General fills a unique gest the absence of quorum. in a congressional investigation of the position in our Government. The Solic- The PRESIDING OFFICER. The former President and of matters in Ar- itor General is not merely another clerk will call the roll. kansas. legal advocate whose mission is to ad- The senior assistant bill clerk pro- Mr. HATCH. If the Senator will yield, vance the narrow interests of a client ceeded to call the roll. I do not mean to keep interrupting, I or merely another advocate of the Mr. HATCH. Mr. President, I ask want to express my gratitude that he is President’s policies. The President has unanimous consent that the order for willing to go head with this and the people appointed on his staff or in his the quorum call be rescinded. Senate can vote on these nominees be- Cabinet to advance his policies. That is The PRESIDING OFFICER (Mr. FITZ- cause I want to get that Justice De- absolutely right. That is the way it GERALD). Without objection, it is so or- partment—and I know the distin- should be. Whoever is President should dered. guished Senator from Vermont does have somebody who can advance his The Senator from Vermont. also—up and running in the fullest positions no matter whether they are Mr. LEAHY. I thank the Chair. Mr. sense we can. That is my only interest partisan or not, and there are positions President, I thank the Senator from in this, other than I do like all three of provided—in fact, hundreds of millions Utah, the chairman of the Judiciary these nominees. I thank my colleague. of dollars’ worth of positions are pro- Committee. Forgive me for interrupting. vided to the President to do that. If I can have the chairman’s atten- Mr. LEAHY. I appreciate the com- The Solicitor General is different. tion just for a moment, I assume we pliment. The Solicitor General is not there to are not looking for specific times and Mr. Dinh and Mr. Chertoff were heav- advance the partisan position of any- speakers on this matter but will go ily involved in what I thought was a body, including somebody who is Presi- back and forth in the usual fashion as misguided investigation, not by them dent. The Solicitor General is there to people arrive. Is that agreeable? but by Members of Congress who con- advance the interests of the United Mr. HATCH. That is agreeable. It is ducted it against former President States of America, of all of us—Repub- my understanding we have 4 hours Clinton and others in Arkansas. How- lican, Democrat, or Independent. equally divided. Mr. President, how ever, I believe they followed the direc- The Solicitor General must use his or much time have I used? tions of Members of Congress, many of her legal skills and judgments to high- The PRESIDING OFFICER. The Sen- whom are no longer here, for a number er purposes on behalf of the laws and ator has used 29 minutes. of reasons. I will vote for them and the rights of all the people of the Mr. LEAHY. Mr. President, for any- urge their confirmation when the time United States. body who wants to speak, following the comes. The Solicitor General does not ad- normal unofficial procedure, as people I mention this because there seems vance a Republican or Democratic or are available, we can go back and to be some in the public, some among Independent position. The Solicitor forth, side to side. what I call the more conservative edi- General advances the positions of the I note that I have no objection to torialists, who think there is going to United States of America. In fact, at proceeding to the motion to discharge be some kind of payback on the Demo- his hearing, Mr. Olson acknowledged— the nomination of Ted Olson to be So- crats’ part for the number of nominees and I will use his words: licitor General. I mention this because who were held up during the Clinton I want Senators to understand. We had The Solicitor General holds a unique posi- administration by the Republican ma- tion in our government in that he has impor- a divided vote in the committee, and jority. I think it makes far more sense tant responsibilities to all three branches of with a divided vote in the committee, to look at nominations one by one on our government. . . . And he is considered an because of the procedures of the Sen- the merits. officer of the Supreme Court in that he regu- ate, I am sure we could have either bot- There is no question if the roles were larly and with scrupulous honesty must tled it up for some time in committee reversed, if somebody of Mr. Dinh’s and present to the Court arguments that are or for some time here. I do not want to Mr. Chertoff’s background had been ap- carefully considered and mindful of the do that. I think there should be a vote pointed by the last administration fol- Court’s role, duty, and limited resources. As one way or the other. We have had too lowing their investigations of Repub- the most consistent advocate before the Su- preme Court, the Solicitor General and the many examples in the past few years of lican Presidents and my understanding lawyers in that office have a special obliga- nominations being bottled up that way. and what I have seen in the last few tion to inform the Court honestly and open- On this one, I have concerns about years, they would have been held up. I ly. The Solicitor General must be an advo- Mr. Olson, but I am agreeable to hav- do not believe in doing that. cate, but he must take special care that the

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY May 24, 2001 CONGRESSIONAL RECORD — SENATE S5583 positions he advances before the Court are under the questions he was asked, expanded his initial response to admit fairly presented. As Professor Drew Days there is a world of difference between that he and his firm provided legal said to this committee during his confirma- what he did not do and what he did do. services in connection with the matter, tion hearing 8 years ago, the Solicitor Gen- He initially described his role as ex- that he had discussions in social set- eral has a duty towards the Supreme Court tremely limited as a member of the of ‘‘Absolute candor and fair dealing.’’ tings with those working on Arkansas board of directors of the American Project matters, and that he himself Those words of Ted Olson’s are words Spectator Educational Foundation and authored articles for the magazine paid that I totally agree with. He has stated implied that he was involved only after for out of Scaife’s special Arkansas the position of the Solicitor General. the fact, when that board conducted a Project fund. He has stated it accurately. We must financial audit and terminated the Ar- Mr. Olson and his supporters then look at his record to see, having talked kansas Project activities in 1998. began to engage in a word game over the talk, whether he walked the walk. Mr. Olson has modified his answers what the meaning of ‘‘Arkansas The Senate must carefully review over time, his recollection has Project’’ is. His law partner Douglas nominations to the position of Solic- changed, and he has conceded addi- Cox told the Post that Olson testified itor General to ensure the highest lev- tional knowledge and involvement. His that he, ‘‘did not know there was this els of independence and integrity, as initial minimizing of his role appears special fund set up by Scaife to finance well as legal skills. Indeed, the Solic- not to be consistent with the whole this Arkansas fact work.’’ itor General is the only government of- story. Because his responses over time That might have explained Mr. ficial who must be, according to the left significant questions and because Olson’s testimony if he had said that at statute, ‘‘learned in the law.’’ We ap- of press accounts that contradicted the the time he was writing the articles point a lot of people, we confirm a lot minimized role to which he initially and giving legal advice and talking of people, but nothing in the law says admitted, I wanted to work with Sen- about these matters with the staff, he they have to be ‘‘learned in the law,’’ ator HATCH before the Judiciary Com- had been unaware that those conversa- mittee voted on this nomination to but for the Solicitor General it says tions were in connection with what have the committee perform the bipar- that. The Solicitor General must argue came to be known as the Arkansas tisan factual inquiry needed to set with intellectual honesty before the Project. In other words, writing and forth the facts and resolve all ques- Supreme Court and represent the inter- giving legal advice and talking about ests of the Government and the Amer- tions and concerns about Mr. Olson’s answers. it, he didn’t know what it was for. I ican people for the long term, and not think he is far too good a lawyer for just with an eye to short-term political I wanted to have us do the bipartisan fact finding that we always do when that. But that is not what Mr. Olson gain. testified. In fact, he admitted that he The Senate must determine whether such issues come up. Indeed, Senator HATCH postponed one became aware of the Arkansas Project a nominee to the position of Solicitor committee vote on Mr. Olson’s nomina- at least by 1998, and then changed that General understands and is suited to tion on May 10 and admitted that testimony to sometime in 1997. this extraordinary role. ‘‘some legitimate questions’’ have aris- He said he was a member of the board It is with the importance of this posi- en and that ‘‘legitimate issues’’ were that received an audit of the Scaife tion in mind that I approached the involved. He said that after an article funds. So by 2001, his knowledge of the nomination of Ted Olson to serve as in the Washington Post indicated that Arkansas Project and the funding by Solicitor General of the United States. Mr. Olson’s role at American Spectator Scaife was undeniable. From my initial meeting with him in and the activities of the Arkansas Second, evidence uncovered during advance of the April 5, 2001, hearing Project were more than just as a mem- the committee’s limited bipartisan in- and thereafter, I have been assessing ber of the board of directors in 1998 to quiry following the committee vote, this nomination against the respon- which a financial audit was provided. raises serious question about whether sibilities of that important office. My friend from Utah did not agree to Mr. Olson accurately denied any role in At the outset, I raised with Mr. Olson that limited inquiry before the com- the ‘‘origin’’ of the Arkansas Project my concern that his sharp partisanship mittee voted on Mr. Olson’s nomina- by failing to respond correctly to di- over the last several years might not tion, but with the constructive assist- rect questions about a meeting in his be something that he could leave be- ance of the leaders and their staff, we law office held in late December, 1993 hind. After review of his testimony were able to make progress over the when this project was getting orga- both orally and in answers to written last week. nized. Not in 2001 but 1993. questions, I have become doubly con- Let me describe just a few of the dis- Third, Mr. Olson has apparently cerned that Mr. Olson has not shown a crepancies in Mr. Olson’s evolving downplayed his involvement in the de- willingness or ability to be sufficiently statements to this committee. These velopment and direction of Arkansas candid and forthcoming with the Sen- are discrepancies that give me pause. Project stories, perhaps to avoid any ate so that I would have confidence in First, Mr. Olson has minimized his inconsistency with his initial represen- his abilities to carry out the respon- knowledge of the Arkansas Project and tation to the committee that he was sibilities of the Solicitor General and its activities through—well, word not involved in the management of this be the voice of the United States before games and definitional ploys. At the project. the United States Supreme Court. In hearing, I asked him the direct ques- According to a published report in addition, I am concerned about other tion: ‘‘Were you involved in the so- the Washington Post on May 20, 2001, matters in his background. called Arkansas Project at any time?’’ the report to which Senator HATCH re- I will lay out in a much more lengthy Mr. Olson responded by saying what he ferred when he indicated that ‘‘legiti- statement for the RECORD, my con- did not do, and with reference to his mate questions’’ had been raised, David cerns, but let me talk more briefly now membership on the board of directors: Brock told Post reporters that ‘‘Olson about my concerns about Mr. Olson’s As a member of the board of directors of attended a number of dinner meetings candor before the committee about his the American Spectator, I became aware of at the home of R. Emmett Tyrrell, Jr., involvement with the American Spec- that. It has been alleged that I was somehow president and chairman of the Spec- tator and the Arkansas Project. His involved in that so-called project. I was not tator, which were explicitly brain- involved in the project in its origin or its initial responses to my questions at his management. . . . I was on the board of the storming sessions about the Arkansas hearing prompted concern that the American Spectator later on when the alle- Project. committee might not have heard a can- gations about the project were simply that it While Mr. Olson refused to respond to did and complete accounting from Mr. did exist. this allegation, his law partner, Doug- Olson. A carefully crafted answer, like las Cox, who worked on the Spectator Rather than respond directly and say somebody spoiling or somebody maneu- account, conceded that Olson attended all that he did do in connection with vering a kayak through the rocks in a such dinners, but that ‘‘did not mean those matters, Mr. Olson chose to re- whitewater rapids. that he was aware of the scope of the spond by misdirection and say what he Over the past several weeks and sev- Arkansas Project and the Scaife fund- did not do. Frankly, in this case, and eral rounds of questions, Mr. Olson has ing.’’

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S5584 CONGRESSIONAL RECORD — SENATE May 24, 2001 David Brock has also indicated that remuneration he has received for his was stonewalled on that request. Mr. Mr. Olson was ‘‘directly involved in the activities on their behalf when he was Olson asserted attorney-client privi- Arkansas Project, participating in dis- first asked. He told us on April 19 that lege; but he did not offer to cooperate cussions about possible stories and ad- he was paid from $500 to $1,000 for his by producing nonprivileged copies of vising the magazine whether to publish articles that appeared in the American those records. one of its most controversial stories, Spectator magazine. Yet, we find out Every lawyer in this place knows about the death of Clinton White House in the Washington Post on May 10 that what is privileged and what is not, deputy counsel Vincent Foster.’’ Ac- his firm was paid over $8,000 for work what falls under attorney-client privi- cording to the account in the Post, Mr. that was used in just one of those arti- lege and what does not. And he did not Olson told Mr. Brock that, ‘‘while he cles. even want to produce those things that didn’t place any stock in the piece, it In addition, the Post reported that clearly fall outside the attorney-client was worth publishing because the role over $14,000 was paid to Mr. Olson’s law privilege. In fact, such nonprivileged of the Spectator was to write Clinton firm and attributed to the Arkansas records have been produced in connec- scandal stories in hopes of ‘shaking Project. tion with other Government inquiries. scandals loose.’ ’’ When he was asked during his hear- Certainly in the last 6 years, docu- That is an interesting position for a ing about an article he had coauthored ments have been produced by the bush- lawyer to take: Print a story you know that was published under the pseu- el to the same Judiciary Committee not to be true, hoping that by printing donym—I want to make sure I get this during other investigations. untruths you will somehow bring for- right—‘‘Solitary, Poor, Nasty, Brutish As part of the bipartisan inquiry un- ward truths. That is not what I was and Short’’ in the magazine he did not dertaken after the committee vote on taught in law school, certainly not in indicate that ‘‘the magazine hired [his] this nomination, we became aware of our legal ethics courses. firm to prepare’’ such materials and to this fact. The independent counsel re- In his response to Senator HATCH, perform legal research on the theo- view and report we were able to read— Mr. Olson did not deny Mr. Brock’s ac- retical criminal exposure of the Presi- that was only a small part of it—indi- count head on. dent and Mrs. Clinton based on press cates that requests were made to Mr. Instead, he wrote that he told Mr. accounts of their conduct. I, for one, Olson and his law firm for billing Brock that the article did not appear thought Mr. Olson had defended his records for any client that had received to be libelous or to raise any legal writings as matters of personal first Scaife foundation grants between 1992 issues that would preclude its publica- amendment political expression, an ab- and 1998 in order to ascertain whether tion, and that he was not going to tell solute right that he and all of us have. there had ‘‘been an indirect method to the editor-in-chief what should appear Certainly, I had no idea from his testi- compensate (the law firm) for its un- in the magazine. mony at his confirmation hearing that paid representation of Hale.’’ That The Washington Post also reported this article was part of his and his would be David Hale. that others said that project story firm’s ongoing legal representation of Just as here, Mr. Olson’s law firm ideas, legal issues involving the stories, American Spectator Educational Foun- initially invoked attorney-client privi- and other directly related matters were dation, that it was a commissioned lege but realized that ultimately they discussed with Mr. Olson by staff mem- piece of legal writing, paid for by a had to give what were nonprivileged bers and at dinner parties of Spectator grant from conservative billionaire billing records for Mr. Olson. And they staff and board members. The reaction . showed Mr. Olson’s representation of from Mr. Olson’s supporters was swift. I am now left to wonder whether his both David Hale and the American On May 15, 2001, Chairman HATCH article that was so critical of the At- Spectator. But the independent counsel shared with the committee a letter he torney General and the Justice Depart- was unable to forward those records in obtained from the two men quoted de- ment was as he described them at his response to the bipartisan, joint re- nying the specific words in the Post hearing the ‘‘statements of a private quest for them by Senator HATCH and story but not denying that they talked citizen,’’ or another richly paid for po- myself. to the Post reporters. litical tract. So Senator HATCH and I then sent a In a blatant effort to undermine Mr. Again, he, like all of us, can write joint request to Mr. Olson’s firm re- Brock’s powerful, first hand recollec- any kind of a political tract he wants. questing information about the total tion of Mr. Olson’s participation in and He, like all of us, can make statements amount of fees paid by the American contributions to the activities of the critical of anybody he wants. He can Spectator to the firm. Remember, the Arkansas Project, Mr. Tyrrell also sub- even make outlandish charges. But implication was there really was not mitted a statement that Mr. Brock was let’s be honest about what we have anything there. Today, we were in- not a part of the Arkansas Project. done when testifying under oath before formed that the amount paid was not Mr. Brock, in reply, submitted strong the Judiciary Committee. $500 to $1,000 per article the committee contradictory evidence to the Tyrrell His supporters repeat the mantra was first told by Mr. Olson. Instead, it statement and supplied the committee that even if he was paid with Arkansas was for legal services performed $94,405. with multiple Arkansas Project ex- Project funds, Mr. Olson would not I am not a bookkeeper. I was a mid- pense reports, expense reports, I might have known that. What they leave out dling math student. But like most note, which remain unrefuted and is a necessary qualifier ‘‘at the time he Vermonters, I can count. There is quite which Mr. Brock states, ‘‘clearly show received the payment.’’ By the time he a bit of difference between $500 to $1,000 that I was reimbursed thousands of dol- came to the committee and testified, and $94,405. lars by the Project for travel, office in answer to direct questions, he had Mr. Olson has tried to distance him- supplies, postage, and the like.’’ become privy to the internal audit of self from the most controversial as- Taken as a whole, Mr. Olson was the Arkansas Project. In fact, he says pects of the Arkansas Project in its ac- clearly involved and participating both he became privy to that 3 years ago in tivities to publicize allegations of professionally and socially in the work 1998. That audit and his knowledge as a wrongdoing about the Clintons in Ar- of the American Spectator and its Ar- board member of the extent of the Ar- kansas. Mr. Olson stated that he ‘‘rep- kansas Project. There is absolutely kansas Project that it revealed ren- resented the American Spectator in the nothing illegal about this involvement dered Mr. Olson’s testimony in April, performance of legal services from and participation, which makes me 2001, less than complete. time to time beginning in 1994 * * * wonder, why not be forthcoming and Having now conceded his involve- those legal services were not for the honest about it? But it shows a larger ment in these matters, something he purpose of conducting or assisting in role in these activities than Mr. Olson did not do initially, the question the conduct of investigations of the initially portrayed. arises: How extensive was that involve- Clintons.’’ Mr. Olson also minimized his role in ment as a lawyer? That is why I asked Yet, we find out he was paid over the Arkansas Project and the Amer- at least for production of his firm’s $8,000 to prepare a chart outlining the ican Spectator by failing to give com- billing records for legal services ren- Clintons’ criminal exposure as research plete information about the amount of dered to the American Spectator, but I for a February 1994 article Mr. Olson

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY May 24, 2001 CONGRESSIONAL RECORD — SENATE S5585 co-authored against the Clintons enti- whether Mr. Olson accurately and fully tator, that he has sought to charac- tled, ‘‘Criminal laws Implicated by the described his role in the American terize it in the most favorable possible Clinton Scandals: A partial list.’’ Spectator and the Arkansas project? light, that he has sought to conclude Finally, Mr. Olson has testified he This nomination is for the office of So- for us rather than provide us with the simply does not recall who contacted licitor General. It is important for two facts and let us conclude how to view him to represent David Hale. reasons, both of which go to the fitness his activities. This is a man who has as sharp a of the nominee to serve as Solicitor As I review the record and the initial mind as just about anybody I have met General. nonresponsiveness, lack of recall, cor- around here, but he does not recall who The principal question raised by the rections when confronted with spe- contacted him to represent David Hale, nomination of Mr. Olson to this par- cifics, I am left to wonder what hap- a central part of this whole inquiry. ticular position—remember, this is a pened to ‘‘absolute candor and fair So when I asked Mr. Olson at his position that is supposed to be non- dealing,’’ the touchstone that Mr. April 5 hearing how he came to rep- political, nonpartisan, representing all Olson himself says is necessary for a resent Mr. Hale he started by saying, Americans of whatever political alle- Solicitor General. In concluding my ‘‘[t]wo of [Hale’s] then lawyers con- giance they have, or whether they have May 4, 2001, letter to Mr. Olson, I tacted me and asked . . .’’ A few sec- none. The question is whether his par- noted: onds later Mr. Olson said: tisanship over the last several years in The credibility of the person appointed to [o]ne of his lawyers contacted me—I can’t connection with so many far-reaching be the Solicitor General is of paramount im- recall the man’s name—and asked whether I anti-Clinton efforts to mark Mr. Olson portance. When arguing in front of the Su- would be available to represent Mr. Hale in preme Court on behalf of the United States connection with that subpoena here in Wash- as a thorough-going partisan who will not be able to check his partisan polit- Government, the Solicitor General is ex- ington, D.C. They felt that they needed pected to come forward with both the Washington counsel with some experience ical instincts at the door to the Office strengths and weaknesses of the case, to in- dealing with a congressional investigation. I of the Solicitor General. form the Court of things it might not other- did agree to do that. Mr. Hale and I met to- Now, the reason I ask that is we have wise know, and to be honest in all his or her gether. another nominee before us, Michael dealings with the Court. I expect that same Even in his May 9 letter, Mr. Olson Chertoff, and we asked some of these responsiveness and cooperation from nomi- asserts that he, ‘‘cannot recall when same questions about Michael Chertoff. nees before this Committee. [he] was first contacted about the pos- In that case, the questions were an- My expectation had been to support sibility of representing Mr. Hale.’’ He swered, the doubts dissipated. Instead him. Please understand, this is not the indicates that he believes, ‘‘that [he] of a 9–9 vote, Mr. Chertoff, had a roll- role of a lawyer advocate in our legal was contacted by a person or persons call vote in committee and it was system. I have been an advocate of the whose identities [he] cannot presently unanimous; Republicans and Demo- court, both at the trial level and at the recall sometime before then regarding crats across the political spectrum appellate level. I have been there both whether I might be willing to represent voted for him. There were Doubts, but for the prosecution and for the defense. Mr. Hale if he needed representation in the questions about Mr. Chertoff dis- In private practice, I was there both for Washington.’’ appeared. But the doubts and questions the plaintiffs and defendants. You fight The Washington Post reported that about Mr. Olson have grown over time. like mad. You make as strong a case David Henderson said that he intro- Had Mr. Olson been straightforward for your client as you can. That is fine. duced Hale to Olson. Interestingly, with the committee, had he conceded The Solicitor General is different. David Henderson apparently signed a the extent of his involvement in anti- The Solicitor General is sometimes re- statement on May 14 indicating that in Clinton activities and given the kinds ferred to as the tenth justice. He is ex- his view he broke no law while imple- of assurances that Mr. Chertoff did pected to tell the Court these are the menting the Arkansas Project. But about his upcoming responsibilities, I strengths of my case, but let me tell what he does not say and what he does could very easily be supporting his con- you also where the weaknesses are of not deny is that he was the person who firmation. my case. If a matter is left out, or introduced David Hale to Mr. Olson. Actually, when I first met with Mr. there might be a weakness in the case, The role that David Henderson Olson, and even at his hearing before he is duty-bound to bring it forward to played in introducing David Hale to we had a chance to go through all of the Court’s knowledge because, if con- Mr. Olson is apparently corroborated his answers and see the areas where by several other witnesses who have firmed, Mr. Olson is not a lawyer advo- they didn’t show consistency, I had spoken to the American Prospect in a cate for just one client because that hoped and expected to be supporting story released today. client is the United States of Amer- It now strikes me as strange that a him. In fact, I remember saying to ica—all 270 million of us. I want to be man as capable as Mr. Olson with his someone in my office at that time that sure that our Nation’s top lawyer will vast abilities of recall could not re- I assumed I would be supporting him. I see the truth and speak the truth fully member the name of David Henderson, expected to be able to give him the to the Supreme Court and represent all if Mr. Henderson was, in fact, involved benefit of the doubt. of our best interests in the matters in setting up that representation. In light of the deference I normally over which the Solicitor General exer- And it strikes me as doubly strange accord a President’s executive branch cises public authority. when the bipartisan inquiry conducted nominees, I fully expected to be voting I have confidence that Mr. Olson is after the committee vote on this nomi- for this nomination, just as I voted for an extremely capable lawyer. Of nation uncovered evidence that Mr. so many by the five previous Presi- course, I do. Do I have confidence that Olson was able to recall who intro- dents, both Republican and Democrat. he can set aside partisanship to thor- duced him to David Hale just a couple In the wake of the hearing, the series oughly and evenhandedly represent the of years ago when he was asked the of supplemental responses we have re- United States of America before the same question. ceived, and the unanswered questions Supreme Court? I do not have such The Hale independent counsel report now in the public record about Mr. confidence, and I cannot vote for him. indicates that in 1998 Mr. Olson could Olson’s involvement in partisan activi- Mr. President, how much time re- supply the name of the person who re- ties like the Arkansas project, I have mains for the Senator from Vermont? ferred David Hale to him for legal rep- many doubts. The PRESIDING OFFICER. There resentation. We also have a question of candor are 76 minutes remaining. It leads one to easily wonder whether and straightforwardness. I have not Mr. LEAHY. Mr. President, the Solic- Mr. Olson’s failure to recall the name, had the sense from his hearing onward itor General fills a unique position in David Henderson, in the year 2001 had that Mr. Olson has been truly forth- our Government. The Solicitor General something to do with him not wanting coming with either me or with the is not merely another legal advocate to indicate the connection to such a committee. My sense is that for some whose mission is to advance the narrow central figure in the Arkansas project. reason he chose from the outset to try interests of a client, or merely another Some would say, what importance is to minimize his role in connection with advocate of his President’s policies. there to this? Does it really matter the activities of the American Spec- The Solicitor General is much more

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S5586 CONGRESSIONAL RECORD — SENATE May 24, 2001 than that. The Solicitor General must The choice of Mr. Olson makes this point helps justify the reliance that the Supreme use his or her legal skills and judgment sensationally because his legal accomplish- Court places on the solicitor general: this for higher purposes on behalf of the law ments are so marked by ideology. As a young practice demonstrates that the solicitor gen- and the rights of all the people of the Justice Department official under Ronald eral’s approach to arguing the government Reagan, he made his name as an adamant de- position is likely to be developed with the United States. fender against Democrats in Congress who nation’s long-term interests in mind. At his hearing, Mr. Olson acknowl- were trying to probe a Republican environ- Both views of the role require candor in edged that: mental scandal. He has litigated matters the S. G. That’s why last week the Senate The Solicitor General holds a unique posi- like a major anti-affirmative-action case in Judiciary Committee postponed its vote on tion in our Government in that he has im- Texas, brought by conservative activists to Mr. Olson after reports surfaced that he had portant responsibilities to all three branches overturn liberal precedents. He has served on given misleading testimony, during his con- of our Government. . . . And he is considered the board of the conservative American firmation hearing, about his role in a project an officer of the Supreme Court in that he Spectator magazine, for which he wrote bit- run by The American Spectator to find dam- regularly and with scrupulous honesty must ing, anonymous criticism of Bill and Hillary aging information about the activities of the present to the Court arguments that are Clinton. He has helped lead the Federal Soci- Clintons in Arkansas. The question of mis- carefully considered and mindful of the ety, a conservative legal organization that is leading testimony is reminiscent of a rebuke Court’s role, duty, and limited resources. As now a formidable force in the Bush Adminis- to Mr. Olson by an independent counsel who the most consistent advocate before the Su- tration. Most significantly, he was the win- investigated whether he had lied to Congress preme Court, the Solicitor General and the ning attorney in the Supreme Court case of in testimony during his days as a Reagan de- lawyers in that office have a special obliga- Bush v. Gore. During Mr. Olson’s Senate con- fender. While ‘‘literally true,’’ the counsel tion to inform the Court honestly and open- firmation hearing, Richard Durbin, Demo- stated, that testimony was ‘‘potentially mis- ly. The Solicitor General must be an advo- crat of , said to him, ‘‘I can’t find any leading.’’ cate, but he must take special care that the parallel in history of anyone who was as ac- Whether he is approved as solicitor general positions he advances before the Court are tively involved in politics as you and went by the full Senate or the Bush administra- fairly presented. As Professor Drew Days on to become solicitor general.’’ tion must choose someone else for the post, said to this committee during his confirma- For the S.G.’s office, the Olson nomination a deeper question endures: Is it now accept- tion hearing 8 years ago, the Solicitor Gen- frames a debate that was sparked during the able to define the job as that of an outright eral has a duty towards the Supreme Court Reagan years and remains undecided. partisan? Or should the S. G. remain an ad- of ‘‘absolute candor and fair dealing.’’ The traditional view holds that the solic- vocate for the nation’s long-term interests Republicans and Democrats have itor general has a unique role in American whose duty to the rule of law goes beyond al- carefully reviewed nominations to the law and functions as ‘‘the 10th justice.’’ Jus- legiance to the political views of the admin- tice Lewis Powell, for example, argued that istration? position of Solicitor General to ensure the S.G. has a ‘‘dual responsibility’’—to rep- the highest levels of independence and resent the president’s administration but Mr. LEAHY. The Senate must deter- integrity, as well as legal skills. In- also to help the Supreme Court develop the mine whether a nominee to the posi- deed, the Solicitor General is the only law in ways that serve the long-term inter- tion of Solicitor General understands government official who must be, ac- ests of the United States. (To some experts, and is suited to this extraordinary role. cording to the statute, ‘‘learned in the the S.G.’s duty to defend federal statutes From in 1870, to Wil- law.’’ The Solicitor General must argue amounts to a third responsibility, to Con- liam Howard Taft and Charles Evans with intellectual honesty before the gress.) Rex Lee, the first solicitor general in Hughes, Jr., from Robert Jackson to Supreme Court and represent the inter- the Reagan administration, was an un- equivocal conservative. Yet he was forced to Archibald Cox, and ests of the Government and the Amer- quit by colleagues who thought he was too , we have had extraor- ican people for the long term, and not restrained in his advocacy of the president’s dinary people serve this country as our just with an eye to short-term political social agenda. Famously, he said that it Solicitors General. It is with the im- gain. I ask unanimous consent to have would have been wrong for him to ‘‘press the portance of this position in mind that printed in the RECORD a recent article administration’s policies at every turn and I approached the nomination of Ted by Professor Lincoln Caplan on the announce true conservative principles Olson to serve as Solicitor General of role of the Solicitor General. through the pages of my briefs.’’ He was, he the United States. From my initial stated, ‘‘the solicitor general, not the pam- There being no objection, the mate- meeting with him in advance of the rial was ordered to be printed in the phleteer general.’’ A more recent view is that the S. G. should April 5, 2001, hearing and thereafter, I RECORD, as follows: act as a partisan advocate for policies of the have been assessing this nomination [From the New York Times, May 18, 2001] president, not as the legal conscience of the against the responsibilities of that im- THE PRESIDENT’S LAWYER, AND THE COURT’S government. Rather than defending a posi- portant office. (By Lincoln Caplan) tion of independence within the administra- Initial Concerns. At the outset, I NEW HAVEN.—The job of solicitor general is tion, Mr. Lee’s successor, , told raised with Mr. Olson my concern that one of the most eminent in American law. the Senate that ‘‘it would be peevish and in- appropriate for the solicitor general to be his sharp partisanship over the last Part advocate, the S. G. as he is called, rep- several years might not be something resents the United States before the Su- anything but cheerful’’ while supporting the preme Court, where the federal government views and interests of the president who ap- that he could leave behind. After re- is involved in about two-thirds of all cases pointed him. view of his testimony both orally and decided on the merits (as opposed to proce- The latter outlook is much easier to de- in answers to written questions, I have dural grounds). Part judge, he chooses when fend. The separation of powers among the become doubly concerned that Mr. the government should appeal a case it has three branches of government makes it sim- Olson has not shown a willingness or lost in a lower court, file a friend-of-the- plest to regard the solicitor general as a spokesman for the executive branch: the con- ability to be sufficiently candid and court brief, or defend an act of Congress. forthcoming with the Senate so that I Most S.G.’s have influenced rulings in land- cept of a dual responsibility (or a triple one) mark cases; many have become judges; four confounds the notion of checks and balances. would have confidence in his abilities have risen to the Supreme Court. Yet for Yet for decades the former outlook pre- to carry out the responsibilities of the most of this tiny office’s history since it was vailed, and it is supported in the only official Solicitor General and be the voice of created in 1870, the S.G. drew little public or statement about the S. G.’s role, issued in the United States before the United even scholarly attention. 1977 by the Justice Department. The Su- States Supreme Court. In addition, I Today, however, the nomination of Theo- preme Court has bestowed on the solicitor am concerned about other matters in dore Olson to be S.G. is headline news, as is general a special status—seeking the S. G.’s evident from the attention to the Senate Ju- advice in many cases where the government his background. diciary Committee’s 9-9 vote on it yesterday, isn’t even a party. And the S. G. has recip- I will detail below the source of my a split along party lines. In the past 40 years, rocated by fulfilling a special role in court. concerns about Mr. Olson’s candor be- the courts have become forums for resolving If a private lawyer wins a case he thinks he fore the Committee about his involve- social questions, and the docket of the Su- should have lost, he accepts his victory in ju- ment with the American Spectator and preme Court has become defined by the most dicious silence. But when the solicitor gen- the ‘‘Arkansas Project.’’ His initial re- divisive issues. During the past 15 years, es- eral prevails on grounds that he considers sponses to my questions at his hearing pecially, as the line between law and politics unjust (for example, when evidence sup- prompted concern that the Committee has been increasingly hard to draw, the porting a criminal verdict is slight), he may choice of a solicitor general has become ‘‘confess error’’ and recommend that the Su- might not have heard a candid and more important politically than that of any preme Court overturn the decision. To Archi- complete accounting from Mr. Olson. legal figure except for the attorney general bald Cox, one of the country’s admired S. Rather than respond directly and say or a Supreme Court justice. G.’s, surrendering victory in some cases all that he did do in connection with

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY May 24, 2001 CONGRESSIONAL RECORD — SENATE S5587 those matters, Mr. Olson chose to re- Committee Vote. Rather than pro- Emmett Tyrrell, as President and spond by misdirection and say what he ceed in a bipartisan way to establish Chairman of the American Spectator did not do. He initially described his the factual record needed to evaluate Educational Foundation, stating the role as extremely limited as a member Mr. Olson’s characterization of his ac- ‘‘[t]his grant is in response to Ron of the Board of Directors of the Amer- tivities, Senator HATCH rejected even Burr’s October 13, 1993 letter and var- ican Spectator Educational Foundation an inquiry of limited duration that ious conversations with us.’’ In addi- and implied that he was involved only would have involved jointly inter- tion, Mr. Burr was the person to whom after the fact, when that Board con- viewing seven individuals, who had al- Mr. Olson sent his February 18, 1994 let- ducted a financial audit and termi- ready been quoted or referred to by the ter confirming the terms of his rep- nated the ‘‘Arkansas Project’’ activi- press, with contemporaneous knowl- resentation of the American Spectator ties in 1998. edge from the time in question, and and his January 30, 1996 letter con- Need for Committee Inquiry. Mr. gathering relevant background docu- firming his acceptance of a member- Olson has modified his answers over ments, which had also been referred to ship on the board of the American time, his recollection has changed, and in the press. He pressed forward with a Spectator Educational Foundation. Un- he has conceded additional knowledge vote in Committee on this nomination fortunately, Committee staff were un- and involvement. His initial mini- that resulted in a 9–9 tie vote. able to speak to Mr. Burr, despite his mizing of his role appears not be con- While usually a nomination on such a willingness to do so because the Amer- sistent with the whole story. Because vote would not be reported to the Sen- ican Spectator refused to release him his responses over time left significant ate, circumstances have changed that from the confidentiality provision in questions and because of press ac- prompt me to give my consent for Mr. his severance agreement for purposes counts that contradicted the mini- Olson’s nomination to be considered. of Mr. Burr’s cooperation with the mized role to which he initially admit- With the constructive assistance of Committee’s inquiry. ted, I wanted to work with Senator both Leaders and their staffs, we were Contradictions and Discrepancies. HATCH before the Judiciary Committee able over the past week to conduct a Let me describe just a few of the dis- voted on this nomination to have the limited, bipartisan inquiry on the mat- crepancies in Mr. Olson’s evolving Committee perform the bipartisan fac- ters of concern raised by Mr. Olson’s statements to this Committee. These tual inquiry needed to set forth the responses to the Committee. are discrepancies that give me pause. facts and resolve all questions and con- Limited Bipartisan Inquiry: Fol- First, Mr. Olson has minimized his cerns about Mr. Olson’s answers. lowing the 9–9 vote on this nomination knowledge of the ‘‘Arkansas Project’’ Indeed, Senator HATCH postponed one in the Judiciary Committee on May 17, and its activities through word games Committee vote on Mr. Olson’s nomi- 2001, Senator HATCH and I released a and definitional ploys. At the hearing, nation on May 10 and admitted that joint statement the next day indi- I asked him the direct question: ‘‘Were ‘‘some legitimate questions’’ have aris- cating that we were discussing how to you involved in the so-called Arkansas en and that ‘‘legitimate issues’’ were move forward on the nomination and Project at any time?’’ Mr. Olson re- involved. He said that after a May 10 to address specific concerns that Mem- sponded by saying what he did not do, article in the Washington Post indi- bers might have prior to the confirma- and with reference to his membership cated that Mr. Olson’s role at Amer- tion vote. As part of this inquiry, Com- on the Board of Directors: ‘‘As a mem- ican Spectator and the activities of the mittee staff reviewed, on a bipartisan ber of the board of directors of the ‘‘Arkansas Project’’ were more than basis, a heavily-redacted version of the American Spectator, I became aware of just as a member of the Board of Direc- report of the Office of Special Review that. It has been alleged that I was tors in 1998 to which a financial audit (OSR), prepared by Michael Shaheen somehow involved in that so-called was provided. and May 21, 2001 responses by Inde- project. I was not involved in the When I did not hear from Senator pendent Counsel Robert W. Ray, in- project in its origin or its manage- HATCH about how he wished to proceed cluding to questions posed jointly by ment. . . . I was on the board of the to resolve those legitimate questions, I Senators HATCH and me. One of these American Spectator later on when the sent him a letter on May 12 proposing letters is in response to a query from allegations about the project were sim- a course of action to avoid any undue Senator HATCH sent unilaterally and ply that it did exist.’’ (Tr. at pp. 200– delay. After I spend my proposal, Sen- without notice to me. On May 22, Sen- 01). ator HATCH and I talked about it. He ator HATCH and I jointly released for Why is there reason to suspect that said he would be getting back to me review by all the members of the Sen- Mr. Olson’s role was not limited to and I held out hope that we would be ate the two May 21 letters received that of a Member of the Board to which able to proceed in a fair and bipartisan from Mr. Ray and the redacted OSR re- a financial audit was provided in 1998? way to get to the facts and let all port—with additional redactions to re- A good deal of the basis is provided by Members of the Committee make their move the names of specific individuals subsequent answers provided by Mr. own assessment before they voted upon other than the nominee. Olson himself. In April, 2001, his testi- the nomination. In addition, Senator HATCH released mony was initially that he was not in- Instead, Senator HATCH was appar- a May 22 letter to colleagues that in- volved, except as a Member of the ently just waiting for a letter from Mr. cluded 71-pages of American Spectator- Board. Over the past several weeks and Olson, which arrived accompanied by related records, which were anony- several rounds of questions, Mr. Olson short, solicited statements from a few mously delivered to my Judiciary Com- has expanded his initial response to selected supporters so that he could mittee and which shed light on how the admit that he and his firm provided unilaterally declare the matter closed. ‘‘Arkansas Project’’ came about. I legal services in connection with the None of these statements could serve should note that within minutes of dis- matter, that he had discussions in ‘‘so- as a substitute for the Committee covery of these documents, copies were cial’’ settings with those working on doing its job, and, instead of playing made and delivered to Senator HATCH’s ‘‘Arkansas Project’’ matters, and that catch-up to the press, exercising the Judiciary Committee office. he himself authored articles for the due diligence that the American people Finally, the Committee staff made magazine paid for out of Scaife’s spe- expect from the Judiciary Committee efforts to conduct an interview of Ron- cial ‘‘Arkansas Project’’ fund. in our review of a nominee for a posi- ald Burr, the former publisher of the Compare, for example, Mr. Olson’s tion sometimes called the ‘‘Tenth Su- American Spectator and a key witness initial response with his subsequent re- preme Court Justice.’’ In essence, the to the events in question. In fact, Mr. sponses in which he modified his origi- question I wished to examine was Burr was the person at the magazine nal answer. In his May 9, 2001 letter to whether Mr. Olson fully informed the instrumental in obtaining the grant me, he stated: ‘‘First, I will address Committee in response to direct ques- funds from conservative billionaire again your questions concerning my in- tions about his role in the American Richard Mellon Scaife. Among the volvement in the ‘Arkansas Project.’ Spectator and the ‘‘Arkansas Project.’’ anonymous-source documents released My only involvement in what has been This was never a question of whether by Senator HATCH is a December 2, 1993 characterized as the ‘Arkansas Project’ there was illegal conduct. letter from Richard M. Scaife to R. was in connection with my service to

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S5588 CONGRESSIONAL RECORD — SENATE May 24, 2001 the Foundation as a lawyer and mem- which apparently requires knowledge strong support.’’ So, according to Mr. ber of its Board of Directors.’’ [Under- of the Scaife funding source, rather Eastland, Mr. Olson had a much more lining added for emphasis.] Mr. Olson than the broader use of the term to de- extensive role in deciding how the initially left out any reference to his scribe the general activities of Clinton American Spectator would ‘‘resolve’’ role a lawyer. scandal mongering underway at the the dispute, contributed to the decision Mr. Olson and his supporters then American Spectator from 1993 through to conduct a review and played a began to engage in a word game over 1998, his involvement was more than he strong supportive role in the review. what the meaning of ‘‘Arkansas described. On Friday, May 11, 2001, the If Mr. Olson is now taking credit for Project’’ is. His law partner Douglas New York Times reported that Mr. finding out about the ‘‘Arkansas Cox told the Post that Olson testified Olson said that when he joined the Project’’ and for shutting it down, as that he, ‘‘did not know there was this Board of Directors of the American reported by the New York Times on special fund set up by Scaife to finance Spectator the ‘‘Arkansas Project’’ was May 11, 2001, that would be a modifica- this Arkansas fact work.’’ That might underway and that when he found out tion of those responses and his initial have explained Mr. Olson’s testimony if about it, he helped shut it down. In response that he was not involved in he had said that at the time he was fact, Mr. Olson’s testimony to the the project, ‘‘in its origin or its man- writing the articles and giving legal Committee was that he was on the agement,’’ to his later formulation advice and talking about these matters Board, ‘‘when the allegations about the that he did, ‘‘not recall giving any ad- with the staff, he had been unaware project were simply that it did exist. vice concerning the conduct of the that those conversations were in con- The publisher at the time, under the ‘Project’ or its origins or manage- nection with what came to be known as supervision of the board of directors, ment,’’ to his later formulation that he the ‘‘Arkansas Project.’’ But that is hired a major independent accounting was not involved in its, ‘‘inception, or- not what Mr. Olson testified. In fact, firm to conduct an audit to report to ganization or ongoing supervision,’’ or he admitted that he became aware of the publisher and therefore to the alternatively, that his, ‘‘only involve- the ‘‘Arkansas Project’’ at least by board of directors with respect to how ment in what has been characterized as 1998, and then changed that testimony that money was funded. . . . As a result the ‘Arkansas Project’ was in connec- to sometime in 1997. He said he was a of that investigation, the magazine, tion with my service to the Foundation Member of the Board that received an while it felt it had the right to conduct as a lawyer and member of its Board of audit of the Scaife funds. So by 2001, those kind of investigations, decided Directors.’’ his knowledge of the ‘‘Arkansas that it was not in the best interest of Of course, there is much left unsaid Project’’ and the funding by Scaife was the magazine to do so. It ended the by Mr. Eastland on this and other top- undeniable. ics. For example, he does not indicate On this particular definitional point, project. It established rules to restrict how he came to be the publisher of the Mr. Olson has minimized his role in that kind of activity in the future. American Spectator and replaced Ron- and his knowledge of how the Scaife . . .’’ In a subsequent written response, Mr. ald Burr in November 1997 or whether money was spent by the Foundation, Olson wrote: ‘‘Neither the report by Mr. Olson had a role in his recruitment even though he was on the board. It strains credulity that he did not know Mr. [Terry] Eastland nor the Board or in that action of replacing the pub- given the size of the Scaife grants—es- found anything unlawful about the lisher. In this regard, Mr. Olson did not pecially when another board member manner in which funds had been spent, indicate to the Committee in his sub- has described briefings to the board on which as I recall, had all been for the mitted responses to our questionnaire the Arkansas Project and its financing purpose of investigating and reporting that he had been an officer at the as ‘‘routine.’’ [Peter Hannaford, Wash- information of legitimate public inter- American Spectator Educational Foun- ington Post, May 15, 2001]. Moreover, est regarding a high level public offi- dation. In written follow up questions, board minutes for a meeting on May 19, cial. However, because of the con- I drew his attention to passages in The 1997, which were included in the anony- troversy surrounding the matter, and Hunting of the President (Id.) in which mous-source documents released by issues regarding whether the journal- the authors of that published work in- Senator HATCH on May 22, indicate istic products that resulted had been dicate that Mr. Olson was named an of- that the board—at least at that meet- worth the amount spent, the project ficer of the organization on October ing—discussed a number of financial was ended and the Board adopted new 1997. Mr. Olson’s response is uncertain matters, such as the foundation’s eq- guidelines to govern investigative jour- and equivocal indicating that he had a, uity holdings, operating reserves, em- nalistic efforts in the future.’’ ‘‘vague recollection that [he] served as ployment contracts, and commitments The letter is interesting on these a temporary secretary for the purpose from the Scaife Foundation. (Doc. pp. points, but only adds to the questions of that meeting, and perhaps a subse- 44–46). rather than resolving what in fact hap- quent one, something that I did not re- This is certainly not the first occa- pened. Mr. Eastland adds another per- call at the time I answered the initial sion that Mr. Olson has played this spective and indicates a much more ac- written questions.’’ word game. Independent Counsel Rob- tive role for Mr. Olson than had pre- Second, evidence uncovered during ert W. Ray notes in response to a re- viously been acknowledged in represen- the Committee’s limited bipartisan in- quest from Senator HATCH, that in a tations to the Committee. Mr. East- quiry following the Committee vote, memoranda of interview, Mr. Olson ac- land writes that in June, 1997, disagree- raises serious question about whether knowledged that ‘‘he may have been ments arose between the magazine’s Mr. Olson accurately denied any role in asked questions by [names redacted] ‘‘then publisher’’ and Richard Larry, the ‘‘origin’’ of the ‘‘Arkansas Project’’ about things that they were doing in the executive director of the Scaife by failing to respond correctly to di- Arkansas, but Olson did not know any- foundations. rect questions about a meeting in his thing about the ‘‘Arkansas Project’’ Mr. Eastland continues: ‘‘At that law office held in late December, 1993 and ‘‘he was not involved in the direc- time, Mr. Tyrrell, who was also chair- when this project was getting orga- tion of funding of that project.’’ Mr. man of the board, asked Mr. Olson, a nized. Olson was precise in his denial of board member since 1996, for his assist- The anonymous-source documents re- knowledge and involvement to refer to ance in resolving the dispute.’’ This leased by Senator HATCH reveal that the term ‘‘Arkansas Project.’’ One role has never previously been ac- following requests by the American unnamed person interviewed by the knowledged by Mr. Olson or Mr. Spectator as early as October 13, 1993, OSR investigation stated, however, Tyrrell. Mr. Eastland then asserts that Richard M. Scaife on December 2, 1993 that ‘‘the ‘Arkansas Project’ was not a ‘‘Mr. Olson agreed that a review of the ‘‘approved a new grant to The Amer- term used by [name redacted] or any- project was necessary.’’ He continues: ican Spectator Educational Founda- one else at the American Spectator to ‘‘Throughout my review, which in- tion, Inc.’’ and forwarded the first in- his knowledge.’’ (May 21 Ray Letter, n. cluded an accounting of the monies stallment of the grant. (Doc. p. 19). 2). spent on the project as well as an ex- Thus, by late December 1993, the Scaife But even accepting Mr. Olson’s strict amination of its management, meth- funding was in place at the American definition of the ‘‘Arkansas Project,’’ ods, and results, I had Mr. Olson’s Spectator to support the activities

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY May 24, 2001 CONGRESSIONAL RECORD — SENATE S5589 that would come to be called the ‘‘Ar- ject of this meeting was Bill and Hil- the report to which Senator HATCH re- kansas Project.’’ lary Clinton and the need for the Spec- ferred when he indicated that ‘‘legiti- With the Scaife funding secured, the tator to investigate and report on nu- mate questions’’ had been raised, David OSR Report confirms that Mr. Olson merous alleged Clinton scandals.’’ (Em- Brock told Post reporters that ‘‘Olson met in his office in late December 1993 phasis supplied). attended a number of dinner meetings with people associated with the Amer- Having seen the OSR Report and a at the home of R. Emmett Tyrrell, Jr., ican Spectator—Ronald Burr, maybe statement submitted by Michael Horo- president and chairman of the Spec- David Henderson, Stephen Boynton and witz, I am led to wonder whether the tator, which were explicitly ‘brain- David Hale. (OSR Report, pp. 78, 82, 90; account of a late 1993 or early 1994 storming’ sessions about the Arkansas May 21, Joint Q. 5). ‘‘[A]t least seven meeting in the Washington law office Project.’’ While Mr. Olson refused to individuals were identified as having of Gibson, Dunn & Crutcher attended respond to this allegation, his law part- possibly been in attendance.’’ (Id.) Mr. by David Henderson, Steve Boynton, ner, Douglas Cox, who worked on the Olson recalled this meeting in 1998 dur- John Mintz, Ronald Burr, Ted Olson Spectator account, conceded that ing the OSR investigation, stating that and Michael Horowitz in The Hunting Olson attended such dinners, but that ‘‘in approximately December 1993’’ he of the President (J. Conason & G. ‘‘did not mean that he was aware of the hosted a meeting in his office, that the Lyons, 2000) is more accurate than we scope of the ‘Arkansas Project’ and the meeting was ‘‘about the possibility have been led to believe by Mr. Olson. Scaife funding.’’ that he provide counsel to the maga- At his hearing, I had asked Mr. Olson David Brock has also indicated that zine,’’ that David Hale attended this whether there had been any meetings Mr. Olson was ‘‘directly involved in the meeting, and that ‘‘the participants of the ‘‘Arkansas project’’ in his office Arkansas Project, participating in dis- may have discussed Hale’s need for a and he responded without reservation: cussions about possible stories and ad- ‘Washington lawyer’ to represent him ‘‘No, there were none.’’ vising the magazine whether to publish if he was called to testify before any I followed up with a written question one of its most controversial stories, congressional committees.’’ (OSR Re- asking in particular about the time about the death of Clinton White House port, pp. 28, 78). frame of 1993 and 1994, and Mr. Olson deputy counsel Vincent Foster.’’ Wash- While the description of what discus- answered that he was, ‘‘not aware of ington Post, May 11, 2001. According to sions may have taken place at this any meeting organizing, planning or the account in the Post, Mr. Olson told meeting is ‘‘incomplete and incon- implementing the ‘Arkansas Project’ Mr. Brock that, ‘‘while he didn’t place sistent’’ with ‘‘inconsistencies not re- in my law firm in 1993 or 1994.’’ I then any stock in the piece, it was worth solved by the Shaheen investigation’’ followed up by drawing his attention to publishing because the role of the (May 21 Ray Response to Joint Q. 5), a passage out of The Hunting of the Spectator was to write Clinton scandal the OSR report contains the following President (Id.) in which the authors of stories in hopes of ‘shaking scandals descriptions from other participants in that book wrote that a meeting did loose.’ ’’ In his response to Senator the meeting: ‘‘while Hale may have take place at which the topic was using HATCH, Mr. Olson did not deny Mr. been a topic of conversation during Scaife funds and the American Spec- Brock’s account head on. Instead, he this meeting, no one requested Olson to tator to, ‘‘mount a series of probes into wrote that he told Mr. Brock that the represent Hale’’ (p. 82); ‘‘[Redacted] re- the Clintons and their alleged crimes article did not appear to be libelous or called meeting with attorneys Theo- in Arkansas.’’ in response to that writ- to raise any legal issues that would dore Olson and [redacted] to discuss ten question, Mr. Olson was less asser- preclude its publication, and that he the representation of David Hale, . . .’’ tive and categorical. He did not deny was not going to tell the editor-in-chief (P. 90). Mr. Ray has identified these that a meeting took place but disputed what should appear in the magazine. references likely to be to the same De- the characterization of the topic of the The Washington Post also reported cember 1993 meeting. (May 21 Ray Re- meeting. Hedging his testimony, he that both R. Emmett Tyrrell and sponse to Joint Qs. 5, 7, 9). noted that he did, ‘‘not recall the meet- Wladyslaw Pleszczynski said that In addition to these limited descrip- ing described.’’ project story ideas, legal issues involv- tions in the OSR Report, Independent With respect to Mr. Olson’s initial ing the stories, and other directly re- Counsel Ray reviewed the underlying categorical denial of meeting at Gibson lated matters were discussed with Mr. memoranda of interviews of three par- Dunn’s offices, in response to another Olson by staff members and at dinner ticipants in the December 1993 meeting written follow up question derived parties of Spectator staff and board in Mr. Olson’s office and summarized from a passage in The Hunting of the members. The reaction from Mr. their statements in a May 21 letter re- President (Id.), I asked whether there Olson’s supporters was swift. On May sponding to a question sent unilater- had, in fact been meetings not only in 15, 2001, Senator HATCH shared with us ally by Senator HATCH. According to 1993 and 1994 but also in July 1997 at a letter he obtained from Messrs. Mr. Ray, whose cooperation during this the offices of Mr. Olson’s law firm to Tyrrell and Pleszczynski denying the bipartisan inquiry has been exemplary discuss allegations that money for the specific words in the Post story but not and helpful, Mr. Olson admitted that at ‘‘Arkansas Project’’ had been denying that they talked to the Post this meeting David Hale’s need for misallocated. Confronted with the spe- reporters. Indeed, the Post story counsel was discussed and that this cific reference to the public record, Mr. quotes Mr. Tyrrell, a quote he does not meeting was ‘‘the commencement of Olson modified his earlier categorical disavow, as saying he did not recall, [my] relationship with the American denial by conceding: ‘‘I do recall meet- but it was a possibility that he talked Spectator magazine’’ but he declined to ings, which I now realize must have to Ted Olson about the stories about describe the substance of that discus- been in the summer of 1997 in my office the Clintons. ‘‘I would say it was a pos- sion, claiming the attorney/client regarding allegations regarding what sibility, just as it was a possibility privilege.’’ (Id., p. 2). It is difficult to became known as the ‘Arkansas that Roosevelt would have discussed see, however, how the meeting could be Project’ and questions concerning Pearl Harbor on December 8 with his covered by attorney/client privilege whether expenditures involved in that secretary of state.’’ Tyrrell and when David Hale, who had no formal project had been properly docu- Pleszczynski also say that Mr. Olson’s affiliation with the Spectator, was mented.’’ carefully worded disclaimer was tech- present. Third, Mr. Olson has apparently nically accurate as far as it went. One unnamed participant confirms down-played his involvement in the de- In a blatant effort to undermine Mr. part of Mr. Olson’s recollection, stat- velopment and direction of ‘‘Arkansas Brock’s powerful, first-hand recollec- ing, ‘‘the purpose of the meeting was to Project’’ stories, perhaps to avoid any tion of Mr. Olson’s participation in and get Olson to represent Hale.’’ Another inconsistency with his initial represen- contributions to the activities of the unnamed participant appears to con- tation to the Committee that he was ‘‘Arkansas Project,’’ Mr. Tyrrell also firm the other part of Mr. Olson’s not involved in the management of this submitted a statement that Mr. Brock recollection regarding the second pur- project. was not a part of the ‘‘Arkansas pose of the meeting about American Yet, according to a published report Project.’’ Mr. Brock, in reply, sub- Spectator activities, stating: ‘‘The sub- in the Washington Post on May 10, 2001, mitted strong contradictory evidence

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S5590 CONGRESSIONAL RECORD — SENATE May 24, 2001 to the Tyrrell statement and supplied magazine he did not indicate that ‘‘the have been produced in connection with the committee with multiple Arkansas magazine hired [his] firm to prepare’’ other government inquiries. Project expense reports which remain such materials and to perform legal re- As part of the bipartisan inquiry un- unrefuted and which Mr. Brock states, search on the theoretical criminal ex- dertaken after the Committee vote on ‘‘clearly show that I was reimbursed posure of the President and Mrs. Clin- this nomination, we became aware of thousands of dollars by the Project for ton based on press accounts of their this fact. The May 28, 1999 transmittal travel, office supplies, postage, and the conduct. I, for one, thought Mr. Olson letter for the December 9, 1998 OSR Re- like.’’ had defended his writings as matters of port indicates that request were made Over the course of the past few personal First Amendment political ex- to Mr. Olson and his law firm, Bigson weeks, Mr. Olson has downplayed any pression. I had no idea from his testi- Dunn & Crutcher (GD&C) for billing significance of discussions in social mony at his confirmation hearing that records for any client that had received settings about the stories that were the this article was part of his and his Scaife foundation grants between 1992– product of the ‘‘Arkansas Project.’’ In firm’s ongoing legal representation of 1998 in order to ascertain whether there his May 9, 2001, letter, Mr. Olson ac- American Spectator Educational Foun- had ‘‘been an indirect method to com- knowledged: ‘‘Your previous questions dation, that it was a commissioned pensate GD&C for its unpaid represen- asked about contacts that I may have piece of legal writing, paid for by a tation of Hale.’’ Just as here, GD&C had with people involved in the project. grant from conservative billionaire initially invoked attorney-client privi- My answer was and is that I had deal- Richard Mellon Scaife. I am now left to lege but ultimately non-privileged bill- ings with the editors of the magazine wonder whether his article that was so ing records for Mr. Olson’s and GD&C’s and some of its reporters and staff, critical of the Attorney General and representation of both David Hale and some social, some in connection with the Justice Department was as he de- the American Spectator were produced. (May 21 Ray Response to Joint A. 1). legal work. This was during a time scribed them at his hearing the ‘‘state- However, the independent counsel was when those persons were involved in ments of a private citizen,’’ or another unable to forward those records in re- one form or another with the investiga- richly paid for political tract. sponse to the bipartisan, joint request tive journalistic efforts which the mag- Mr. Tyrrell and Mr. Pleszcynski do for them from Senator HATCH and my- azine was contemporaneously pursuing. not deny that Mr. Olson was paid for the chart speculating on the Clintons’ self. I was, of course, aware, along with the Accordingly, Senator HATCH and I potential criminal exposure. Instead, public generally, that the magazine then sent a joint request to Mr. Olson’s they merely repeat the mantra that was writing articles about the Clin- firm requesting information about the even if he was paid with ‘‘Arkansas tons, but I did not know that there was total amount of fees paid by the Amer- Project’’ funds, Mr. Olson would not a special source of funding for these ef- ican Spectator to the firm. On May 24, have known that. What they leave out forts.’’ Mr. Cox informed us by letter that the is a necessary qualifier, ‘‘at the time In his May 14, 2001, letter to Senator amount paid over the course of five and he received the payment.’’ They and HATCH, he writes: ‘‘It was also true one-half years for legal services per- Mr. Olson became privy to the internal that in social settings, the magazine’s formed is $94,405. That is a far different editorial staff and writers spoke of the audit of the ‘‘Arkansas Project’’ by number than the $500 to $1,000 per arti- articles that they were involved in 1998. That audit and his knowledge as a cle the Committee was first told by Mr. writing and publishing. I was among Board Member of the extent of the ‘‘Ar- Olson. scores of people from time to time in- kansas Project’’ it revealed render Mr. Fifth, Mr. Olson has tried to distance cluded in such social events, but noth- Olson’s testimony in April, 2001, less himself from the most controversial ing about these social discussions in- than complete. aspects of the ‘‘Arkansas Project’’ in volved organizing, supervising or man- I have inquired of Mr. Olson what his its activities to publicize allegations of aging the project—they were simply and his firm’s legal representation of wrongdoing about the Clintons in Ar- discussions of subjects of contempora- the American Spectator entailed. In re- kansas. Mr. Olson stated that he ‘‘rep- neous interest to the magazine’s edi- sponse he has been extremely general, resented the American Spectator in the tors and writers.’’ vague and unspecific and, at times, has performance of legal services from Yet, taken as a whole, Mr. Olson was cloaked his nonresponsiveness in allu- time to time beginning in 1994 . . . clearly involved and participated both sions to the attorney-client privilege. those legal services were not for the professionally and socially in the work In fact, his law partner, Douglas Cox, purpose of conducting or assisting in of the American Spectator and its ‘‘Ar- has acknowledged that he and Mr. the conduct of investigations of the kansas Project.’’ There is absolutely Olson worked on legal matters for the Clintons.’’ (April 25th Responses, Q. 4). nothing illegal about this involvement American Spectator, including legal Yet, we find out he was paid over $8,000 and participation, but it shows a larger research that was incorporated into to prepare a chart outlining the Clin- role in these activities than Mr. Olson the article that was published in 1994 in tons’ criminal exposure as research for initially portrayed. the American Spectator, under a ficti- a February 1994 article Mr. Olson co- Fourth, Mr. Olson minimized his role tious name, that argues that the Presi- authored against the Clintons entitled, in the ‘‘Arkansas Project’’ and the dent was facing up to 178 years in pris- ‘Criminal laws Implicated by the Clin- American Spectator by failing to give on and Mrs. Clinton had a criminal ex- ton Scandals: A partial list.’ complete information about the posure of 47 years in prison. He then Finally, Mr. Olson has testified he amount of remuneration he has re- proceeds to undercut any claim of at- simply does not recall who contacted ceived for his activities on their behalf torney-client privilege for these activi- him to represent David Hale. When I when he was first asked. He told us on ties by indicating that they did not asked Mr. Olson at his April 5 hearing April 19 that he was paid from $500 to rely on any communications with any- how he came to represent Mr. Hale he $1,000 for his articles that appeared in one at American Spectator. started by saying, ‘‘[t]wo of [Hale’s] the American Spectator magazine. Yet, Having now conceded his involve- then lawyers contacted me and asked we find out in the Washington Post on ment in these matters, something he . . . .’’ A few seconds later Mr. Olson May 10 that his firm was paid over did not do initially, the question said, ‘‘[o]ne of his lawyers contacted $8,000 for work that was used in just arises: how extensive was that involve- me—I can’t recall the man’s name—and one of those articles. In addition, the ment as a lawyer? That is why I asked asked whether I would be available to Post reported that over $14,000 was paid at least for production of his firm’s represent Mr. Hale in connection with to Mr. Olson’s law firm and attributed billing records for legal services ren- that subpoena here in Washington, D.C. by American Spectator to the ‘‘Arkan- dered to the American Spectator, but They felt that they needed Washington sas Project.’’ was stonewalled on that request. Mr. counsel with some experience dealing When he was asked during his hear- Olson asserted attorney-client privi- with a congressional investigation. I ing about an article he had coauthored lege; he did not offer to cooperate by did agree to do that. Mr. Hale and I that was published under the pseu- producing non-privileged copies of met together.’’ donym ‘‘Solitary, Poor, Nasty, Brutish those records. (April 25 Response, Q.4; Even in his May 9 letter, Mr. Olson and Short’’ in the American Spectator May 9 Response, p. 3). Such records asserts that he, ‘‘cannot recall when

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY May 24, 2001 CONGRESSIONAL RECORD — SENATE S5591 [he] was first contacted about the pos- represent David Hale because that now in the public record about Mr. sibility of representing Mr. Hale.’’ He would simply be another tie to the Olson’s involvement in partisan activi- indicates that he believes, ‘‘that [he] ‘‘Arkansas Project.’’ But we may never ties like the ‘‘Arkansas Project,’’ I still was contacted by a person or persons know for sure. have my doubts. whose identities [he] cannot presently On this point regarding how Mr. Second is the question of candor and recall sometime before then regarding Olson came to represent Mr. Hale, and straightforwardness. I have not had the whether I might be willing to represent Mr. Olson’s testimony to the Com- sense from his hearing onward that Mr. Mr. Hale if he needed representation in mittee about it, Michael J. Horowitz Olson has been truly forthcoming with Washington. As I recall, I indicated at submitted a statement that says that me or with the Committee. My sense is the time that I might be able to do so, he, Mr. Horowitz, ‘‘attended one meet- that for some reason he chose from the but only in connection with a potential ing in Mr. Olson’s presence at which outset to try to minimize his role in congressional subpoena, not with re- the matter discussed was legal rep- connection with the activities of the spect to legal matters pending in Ar- resentation for David Hale, who was American Spectator, that he has kansas.... I believe that this meeting facing Congressional testimony and sought to characterize it in the most was inconclusive because Mr. Hale did was in need of distinguished Wash- favorable possible light, that he has not at that time need representation in ington counsel. At that meeting—at sought to conclude for us rather than Washington.’’ which no mention I know of was made provide us with the facts and let us The Washington Post reported that of the ‘Arkansas Project’ or any term conclude how to view his activities. David Henderson said that he intro- like it—the subject under discussion I will cite another example of non- duced Hale to Olson when Hale came to was whether Mr. Olson’s firm would responsiveness from the record. I asked Washington to find a lawyer who could serve as counsel to Mr. Hale.’’ Mr. Olson in light of his testimony at help him deal with a subpoena from the It is entirely unclear in what capac- the hearing that he was not involved in Senate Whitewater committee, and sat ity Mr. Horowitz was attending such a the origins or management of the ‘Ar- in on a meeting between the two men. meeting, but it may not have been kansas Project’: ‘‘Were you involved in Interestingly, David Henderson appar- quite as simple as one or two lawyers advising anyone who was involved in ently signed a statement on May 14 in- then representing Mr. Hale approach- the origins or management of the dicating that in his view he broke no ing a high profile Washington lawyer project? If so, what advice did you pro- law while implementing the ‘‘Arkansas and his instantaneous agreement to ac- vide? Were you at meetings or social Project.’’ What he does not say and cept the representation for a client events with anyone involved in the what he does not deny is that he was without a retainer and without much project as an originator, manager, re- the person who introduced David Hale prospect of being paid after. According porter, or source for the project? If so, to Mr. Olson. The role that David Hen- to Mr. Olson, he and Mr. Hale ‘‘met to- what role did you play at these meet- derson played in introducing David gether’’ and Mr. Hale agreed to pay ings or social events?’’ Hale to Mr. Olson is apparently cor- [Gibson, Dunn & Crutcher’s] fees.’’ In Mr. Olson’s response was, as follows: roborated by several other witnesses the end, Mr. Hale could not pay the ‘‘I did not realize that a Project of any sort who have spoken to the American $140,000 in legal fees he owned Mr. was underway except to the extent that I Prospect in a story released on May 24. Olson. have indicated. I was in contact at social It now strikes me as strange that a Fitness to be Solicitor General. Some events with reporters for the magazine and members of the editorial staff, individuals man as capable as Mr. Olson with his have said, why is this important? Does whom I regard as personal friends. I have vast abilities of recall could not re- this matter whether he accurately and been at countless social events at which one member the name of David Henderson, fully described his role in the Amer- or more of such persons may have been if Mr. Henderson was, in fact, involved ican Spectator and the ‘‘Arkansas present. I have not kept records of such in setting up that representation. It Project’’? It is important for two rea- meetings, or the nature of the conversations strikes me as doubly strange when the sons, both of which go to the core of that may have occurred at such meetings bipartisan inquiry conducted after the the fitness of the nominee to serve as that might have involved President Clinton Committee vote on this nomination Solicitor General. The principle ques- or his contemporaneous or past conduct. I was not playing any particular role at those uncovered evidence that Mr. Olson was tion raised by the nomination of Mr. social events, except that I was probably a able to recall who introduced him to Olson to this particular position is host of events at which persons who wrote David Hale just a couple of years ago whether his partisanship over the last for or performed editorial services for the when asked the same question. several years in connection with so American Spectator may have been present. The OSR Report indicates that in many far reaching anti-Clinton efforts To the extent that it is relevant to your in- 1998 Mr. Olson recalled who referred mark Mr. Olson as a thoroughgoing quiry, I was the best man at the wedding of David Hale to him for legal representa- partisan who will not be able to check the editor-in-chief of the American Spec- tion, stating: ‘‘Hale became a client of his partisan political instincts at the tator. I recall that he was also present at my Olson’s firm around November 1995. wedding. He is a personal friend and we have door to the Office of the Solicitor Gen- had numerous social meetings. He has writ- Olson believes that Hale may have been eral. Similar questions were raised by ten at least two books about former Presi- referred to him by [redacted].’’ (OSR the nomination of Michael Chertoff. In dent Clinton. I do not interpret your inquiry Report, p. 79). that case the questions were answered as asking for the substance of conversations It leads one to wonder whether Mr. and the doubts dissipated. In connec- at social events. And I do not recall giving Olson’s failure to recall the name tion with the Olson nomination, those any advice concerning the conduct of the David Henderson had something to do doubts have grown over time. ‘Project’ or its origins or management. with his not wanting to indicate the Had Mr. Olson conceded the extent of Literally true? Probably. Respon- connection to such a central figure in his involvement in anti-Clinton activi- sive? Hardly. At the time of his hearing the ‘‘Arkansas Project.’’ Indeed, it has ties and given the kinds of assurances and his answer, Mr. Olson was well been reported that when Mr. Olson be- that Mr. Chertoff did about his upcom- aware of the activities of the ‘‘Arkan- came a Member of the Board of Direc- ing responsibilities, I would be sup- sas Project,’’ which was operated by tors of the American Spectator his porting his confirmation. Indeed, when the organization for which he acted as January 1996 letter accepting the posi- I met with Mr. Olson and at his hear- lawyer, author and contributor, Board tion was addressed to the publisher ing, I hoped and expected that to be my Member and officer. He had been pre- Ronald Burr with copies sent to position. I expected to be able to give sented with an audit and played a piv- Messrs. Tyrrell and Henderson. Mr. him the benefit of the doubt and, in otal role in reviewing the examination Henderson says in his recent statement light of the deference I would normally of its management, methods and re- that he served for a while on the Spec- accord a President’s Executive Branch sults, according to Mr. Eastland. His tator Board. But why was he, in par- nominees, I fully expected to be voting answer, however, steers clear of per- ticular, sent a copy? One explanation is for this nomination. jury without responding to the con- that Mr. Olson has a selective memory In the wake of the hearing, the series cerns being raised. It relies on a lack of and that he did not recall Mr. Hender- of supplemental responses we have re- recollection and is an attempt at dis- son as the person who contacted him to ceived and the unanswered questions traction.

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S5592 CONGRESSIONAL RECORD — SENATE May 24, 2001 Conclusion. As I review this record Indeed, many of the allegations GIBSON, DUNN & CRUTCHER, LLP, and the initial nonresponsiveness, lack against Mr. Olson have arisen from re- Washington, DC, May 15, 2001. of recall, corrections when confronted ports in The Washington Post. But the Re the nomination of Theodore B. Olson to with specifics, I am left to wonder what be the Solicitor General of the United Post has advocated the confirmation of states happened to ‘‘absolute candor and fair Mr. Olson. dealing.’’ In concluding my May 4, 2001, Hon. , letter to Mr. Olson I noted: ‘‘The credi- Mr. Olson is one of the most qualified Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC. bility of the person appointed to be the nominees ever for the position of Solic- itor General. I hope that this body will Hon. PATRICK J. LEAHY, Solicitor General is of paramount im- Ranking Minority Member, Senate Judiciary portance. When arguing in front of the confirm him today so that he can begin Committee, Washington, DC. Supreme Court on behalf of the United his important work litigating on behalf DEAR SENATORS HATCH AND LEAHY: This States Government, the Solicitor Gen- of the United States. letter is being sent to the Committee in con- eral is expected to come forward with Mr. President, I ask unanimous con- nection with the nomination of Theodore B. both the strengths and weaknesses of Olson to become the Solicitor General of the sent to have printed in the RECORD the the case, to inform the Court of things United States. It is written in the context of following letters we have received in it might not otherwise know, and to be an apparent controversy regarding the truth- support of Mr. Olson. These include let- fulness of particular testimony given by Mr. honest in all his or her dealings with Olson at his confirmation hearing before the the Court. I expect that same respon- ters from Robert Bennett, Larry Simms, Michael Horowitz, James Ring Committee. I have had no involvement what- siveness and cooperation from nomi- soever in Mr. Olson’s preparation for that nees before this Committee.’’ My ex- Adams, Terry Eastland, Floyd Abrams, hearing, I have not reviewed a transcript of pectations have been disappointed. Laurence Tribe, William Webster, R. that hearing, and I have not discussed the I understand the role of a lawyer-ad- Emmett Tyrell, Wladyslaw substance of this controversy with Mr. Olson vocate in our legal system, and I did Pleszczynski, Douglas Cox, David Hen- or anyone who may be assisting Mr. Olson in not intend to oppose this nomination derson, and Stephen Boynton. These this matter. Indeed, my universe of asserted merely because of Mr. Olson’s clients letters demonstrate the depth and facts regrading this controversy is limited to and his clients’ activities. If confirmed, my review of two or possibly three articles breadth of the support for Mr. Olson’s printed recently in The Washington Post however, Mr. Olson’s next client will be nomination. that were brought to my attention by a the United States of America—and all There being no objection, the letters former associate of Gibson, Dunn in a purely of us. I want to be sure that our na- were ordered to be printed in the social communication. This letter has not tion’s top lawyer will see the truth and been, nor will it be, reviewed or seen by any- speak the truth fully to the Supreme RECORD, as follows: one other than word processing personnel be- Court and represent all of our best in- SKADDEN, ARPS, SLATE, MEAGHER fore it is delivered to the Committee, al- terests in the weighty matters over & FLOM LLP, though I am providing a copy of it to Mr. which the Solicitor General exercises Washington, DC, May 15, 2001. Olson as a matter of courtesy. Hon. ORRIN G. HATCH, public authority. Based upon what I I understand the central concern of the Chairman, Senate Judiciary Committee, U.S. Committee to be the truthfulness and integ- have seen I do not have the requisite Senate, Washington, DC. rity that Mr. Olson would bring to the pres- confidence in Mr. Olson to be able to DEAR SENATOR HATCH: I write this letter in entation of the position of the United States support his nomination. I will vote no. in cases brought before the Supreme Court I reserve the remainder of my time. support of the appointment of Ted Olson as Solicitor General of the United States. or other cases within the ambit of the au- Mr. HATCH. Mr. President, I agree thority of the Solicitor General. I share the with my colleague from Vermont that Our country is blessed with many wonder- view that there should be no doubt about the the Solicitor General must be a person ful lawyers of all political persuasions. In ability and integrity of any nominee to this of the highest integrity. This is very making judgments about their selection for position to present the Government’s posi- important if the Solicitor General is to high office, we must look beyond their polit- tion with honesty and integrity. When this represent the interests of all Ameri- ical labels and pick the best qualified. The sort of issue arises in this town, it is cus- tomary for the record to be filled, often to cans and to be a valuable assistant to Ted Olson that I know and respect would be a great Solicitor General. I am confident overflowing, with letters extolling the integ- the Supreme Court. Mr. Olson himself that he will obey and enforce the law with rity of the nominee whose ability to serve acknowledged this high standard in his skill, integrity and impartiality. The Amer- with the requisite integrity has been chal- testimony to the committee. ican people would be most fortunate to have lenged. I doubt that such testimonials are I believe that Mr. Olson has exempli- such a skillful and honest advocate rep- particularly helpful to the Committee, I fied this high level of candor and integ- resenting the United States before the Su- would, instead, like to bring to the attention rity in all of his dealings with the com- preme Court. of the Committee three instances in which I worked with Mr. Olson on matters that de- mittee. Several years ago when I was the State Some of my colleagues have alleged manded precisely the kind of intellectual in- Chair of the American College of Trial Law- tegrity that should be displayed by any So- that Mr. Olson misdirected the com- yers for the District of Columbia, it was my mittee in his answers. But this is sim- licitor General and in which Mr. Olson dis- responsibility to help select for admission to played that integrity under what can only be ply untrue. Mr. Olson told us what he the College the very best advocates—those characterized as battlefield conditions. did with the American Spectator and who were the most skilled, dedicated and First, I should provide the Committee with the Arkansas Project. He wrote several honest. At the top of my list was Ted Olson. some relevant information about myself. articles for that magazine—copies of Ted, because of his stellar qualifications and I graduated from the Boston University these articles were all provided to the reputation for integrity, sailed through the School of Law in 1973, having spent four committee with Mr. Olson’s question- selection process. Those who supported him years as an officer in the U.S. Navy after my naire. Mr. Olson also told us that he were liberals, moderates and conservatives graduation from Dartmouth College in 1966. I was on the board of the magazine and of all stripes. grew up in Tennessee, campaigned for the late Senator Albert Gore, Sr. in his last cam- became aware of the Arkansas Project While I do not have any personal knowl- paign in 1970, and I am a Democrat. In 1973– edge as to what role, if any, Mr. Olson played in 1997. He has not attempted to hide 74, I served as a law clerk to Circuit Judge any of these activities from the com- in the ‘‘Arkansas Project’’ or the full extent James L. Oakes of the Second Circuit. In mittee. Rather he has cooperated fully, of his relationship with the American Spec- 1974–75, I served as law clerk to Associate submitting numerous responses to tator, what I do know is that Ted Olson is a Justice Byron R. White of the Supreme questions from members of the Judici- truth-teller and you can rely on his represen- Court. In 1975–76, I served as Counsel to the ary Committee. tations regarding these matters. Moreover, I Reporters Committee for Freedom of the Mr. Olson enjoys the support of many agree with Senator Leahy that the credi- Press and began teaching a First Amend- prominent liberal scholars and lawyers, bility of the individual appointed to be Solic- ment seminar as a adjunct professor of the itor General is of paramount importance. In as I have detailed already. Many of his Georgetown Law Center, a course I taught my view, based on the many years I have until 1985. In June 1976, I was hired by colleagues at the Office of Legal Coun- known him, Ted Olson is such an individual. Antonin Scalia, then the Assistant Attorney sel have attested to his fairness and his He is a man of great personal integrity and General in charge of the Office of Legal consummate ability to serve as a gov- credibility and should be confirmed. Counsel of the Department of Justice ernment lawyer in a nonpartisan man- Sincerely, (‘‘OLC’’), as an attorney-adviser. In 1979, I ner. ROBERT S. BENNETT. was appointed Deputy Assistant Attorney

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY May 24, 2001 CONGRESSIONAL RECORD — SENATE S5593 General in OLC by Attorney General Bell. I This letter is written off the top of my stated above, I was the lead writer on the was the only remaining Deputy Assistant in head, so the Committee will have to forgive Project, and Mr. Olson had absolutely no OLC when the first Reagan Administration me for any error in any of the facts stated role in guiding my development of stories for took office in January, 1981, and I continued above that I may have made, but there is no the magazine or in managing my work. In- to serve in that capacity until February 1985. error in my conclusion that these three ex- deed, I believe I only spoke to Mr. Olson once Mr. Olson was the Assistant Attorney Gen- amples paint the portrait of a lawyer scru- during the years in question, at the end of a eral in charge of OLC from his confirmation pulously devoted to the law and having the widely attended dinner at a Washington, in 1981 through the fall of 1984. We worked personal and intellectual integrity to place D.C. hotel, sometime in 1998, I believe. I closely together on many issues, and I came the law above the politics of Washington at sought him out to ask a general question to know him well both at the professional considerable personal risk. It is that quality, about recent, publicly reported develop- and personal level. I joined Gibson, Dunn as after all, that it seems to me one should look ments in the Webster Hubbell legal case. It an associate in February 1985, became a part- for in considering the nomination of any per- was my impression at the time that he did ner in 1988 and have practiced appellate law son to be the Solicitor General of the United not recognize me, and I had to explain who I with the firm for sixteen years. States. Mr. Olson is a fierce advocate, but he was; we spoke only for about five minutes. Mr. Olson’s handling of three major issues is an honest advocate and a person whose in- Given that we had no other meetings, con- during his tenure as the head of OLC stands tegrity and devotion to the law and the rule versations or other communications about out as exemplary of his intellectual integ- of law have survived challenges to which my work, it is false and wrong to assert that rity. First, and as this Committee is well very few public servants are ever subjected. Mr. Olson had any role whatsoever in man- aware, the courts had not at that time deter- Very truly yours, aging or directing what is referred to as the mined the constitutionality of the legisla- tive veto device. In addition, the Republican LARRY L. SIMMS. ‘‘Arkansas Project.’’ May 14, 2001. plank endorsed by President Reagan openly JAMES RING ADAMS. supported the legislative veto device. When STATEMENT OF MICHAEL J. HOROWITZ TO THE he became head of OLC, Mr. Olson studied SENATE JUDICIARY COMMITTEE MCLEAN, VA, May 14, 2001. the question of the constitutionality of the I am a Senior Fellow and Director of the Hon. ORRIN HATCH, legislative veto device, discussed that ques- Project for Civil Justice at the Hudson Insti- tion at great length with me and other OLC tute. I served as General Counsel of OMB U.S. Senate, lawyers, and concluded that legislative veto under President Reagan. I have known Ted Washington, DC. DEAR SENATOR HATCH: I am writing to devices were, root and branch, unconstitu- Olson for 20 years and have the highest re- comment on matters of possible relevance to tional. He so advised Attorney General gard for him and for his professionalism, in- President Bush’s nomination of Theodore B. Smith, who in turn advised President telligence and integrity. Olson to be Solicitor General. Reagan and members of the President’s In fact, I have always found Mr. Olson’s I became publisher of The American Spec- staff—many of whom were strongly sup- word to be absolutely reliable. I have dis- tator in November 1997. I was authorized by portive of legislative veto devices. Mr. Olson agreed with Mr. Olson from time to time on the board of directors to conduct a review of convinced the Attorney General that the issues of policy, but I have never met a per- what has been called the ‘‘Arkansas issue involved was a legal issue, not a polit- son more meticulously scrupulous on mat- Project.’’ I completed the review in 1998 and ical issue, and that the law, not the plank of ters of principle or honesty. reported my findings to the board. I also as- the Republican Party, had to be followed by Never. sisted investigators working under the everyone involved, including the President I have read Mr. Olson’s testimony in re- Whitewater independent counsel, who were himself. This story is chronicled in Chadha: sponse to Senator Leahy’s question regard- charged with looking into certain issues in- The Story of an Epic Constitutional Struggle ing the ‘‘Arkansas Project,’’ delivered during volving the project. by Professor Barbara Hankinson Craig of Mr. Olson’s confirmation hearing. His testi- As I discovered soon after I began my re- Wesleyan University, and I strongly com- mony to Senator Leahy was, in all respects view, the project was conceived in the fall of mend that book to the Committee as it con- that I am aware, wholly accurate. Specifi- 1993 by Editor-in-Chief R. Emmett Tyrrell, siders Mr. Olson’s nomination. cally, I know of no respect in which Mr. Jr., and Richard Larry, then the executive Second, and as this Committee is also Olson was involved in the Project’s ‘‘origin director of the Scaife foundations. The point aware, there was much discussion in the or its management.’’ of the project was to place in Arkansas indi- early years of the first Reagan Administra- I attended one meeting in Mr. Olson’s pres- viduals who would look into allegations in- tion about the enactment of legislation to ence at which the matter discussed was legal volving then Governor and re- curb the jurisdiction of the Supreme Court of representation for David Hale, who was fac- late their findings to the magazine’s editors the United States. Much of that discussion ing Congressional testimony and was in need and writers for their review. The project con- was initiated by the new Republican major- of distinguished Washington counsel. At that ity on this Committee. Once again, Mr. templated the publication of investigative meeting—at which no mention I know of was pieces. Two Scaife foundations were prepared Olson was put under substantial pressure to made of the ‘‘Arkansas Project’’ or any term ‘‘play ball’’ with the Administration and to underwrite the project, which in grant like it—the subject under discussion was correspondence was called ‘‘the editorial im- clear the Administration to endorse such whether Mr. Olson’s firm would serve as legislation. Once again, he studied the issue, provement project.’’ counsel to Mr. Hale. Put otherwise, I have The project was commenced in November discussed it extensively with me and other never heard Mr. Olson discuss or imply that OLC lawyers, and concluded that such legis- 1993. Individuals were duly retained to con- he was involved in managing or directing ei- duct the ‘‘on-the-ground’’ researches in Ar- lation would probably be held unconstitu- ther anything called the Arkansas Project or tional. That opinion was reduced to writing kansas, and the first editorial result of the any of the investigative journalistic inquir- and served as the Administration’s response. project was an article on an aspect of White- ies of his client, the American Spectator No such legislation, so far as I can recall, water, which was published in February 1994. Magazine. was ever seriously considered after the Ad- The project continued through the early fall In making the above statement, I note ministration’s position was communicated of 1997, and it produced a total (by my count) to Congress. that I am aware of nothing to suggest that of eight articles. The Scaife foundations con- Third, in late 1981, I was preparing to trav- the American Spectator violated the law. tributed a total of approximately $2.3 mil- el to The Hague on business when I was Likewise, I believe it clear that the Amer- lion, more than $1.8 million of which asked by Mr. Olson for my views on the sub- ican Spectator’s journalistic and investiga- underwrote the work of the individuals in stantive issues raised in what ultimately be- tive activities were and are fully protected Arkansas. came the famous Bob Jones case. Although I by the First Amendment. In my review, I found no evidence that Mr. did not have much time to study those sub- Olson was involved in the project’s creation stantive issues, I advised Mr. Olson orally I was hired in late 1993 by the American or its conduct. My own sense is that Mr. that I feel that the Government’s position Spectator to be the lead writer for what has Olson did not become aware of the project taken in that case was correct and would be come to be known as the ‘‘Arkansas until June 1997, when disagreements arose vindicated by the Supreme Court. I also ad- Project.’’ I originally started as a free-lance between the magazine’s then publisher and vised Mr. Olson that I felt strongly that the writer, but was hired onto the staff of the Mr. Larry over project expenditures. At that Office of the Solicitor General had an obliga- magazine in 1994, where I remained until time, Mr. Tyrrell, who was also chairman of tion to defend the statute involved in that January 1, 1999. My numerous articles in the the board, asked Mr. Olson, a board member case in the Supreme Court. By the time I re- Spectator, based largely on my personal re- since 1996, for his assistance in resolving the turned from The Hague, the Bob Jones fiasco porting in Arkansas, analyzed many dif- dispute. When I came aboard as publisher, was playing itself out, with a decision having ferent aspects of Whitewater and related Mr. Olson agreed that a review of the project been made—over Mr. Olson’s strong objec- controversies. Over the four years or so that was necessary. Throughout my review, which tions—that the statute would not be de- I worked for the Spectator, I traveled to Ar- included an accounting of the monies spent fended by the Solicitor General. The Su- kansas on roughly a monthly basis. on the project as well as an examination of preme Court ultimately appointed William I understand that David Brock, who for a its management, methods, and results, I had Coleman to defend the statute in that court, period was another writer for the magazine, Mr. Olson’s strong support. and Mr. Olson’s position was vindicated by, has alleged that Mr. directed Finally, I should add that, based upon my as I recall, an almost unanimous decision. or supervised the ‘‘Arkansas Project.’’ As knowledge of the magazine’s financial

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records in general and those of the Scaife- If we set Bush v. Gore aside, what remains WASHINGTON, DC, May 14, 2001. funded project in particular, Mr. Olson never in Ted’s case is an undeniably distinguished Hon. ORRIN G. HATCH, received any payments from The American career of an obviously exceptional lawyer Chairman, Judiciary Committee, U.S. Senate, Spectator for his representation of David with an enormous breadth of directly rel- Washington, DC. Hale. evant experience. Although part of that ca- Hon. PATRICK J. LEAHY, I hope these observations are of assistance. Ranking Minority Member, Judiciary Com- reer has been devoted to causes with which I Sincerely yours, mittee, U.S. Senate, Washington, DC. TERRY EASTLAND. disagree, his briefs and arguments have DEAR CHAIRMAN HATCH AND RANKING MI- treated the applicable law and the under- NORITY MEMBER LEAHY: I write in support of GAHILL GORDON & REINDEL, lying facts honestly and forthrightly, not the nomination of Theodore B. Olson by New York, NY, March 4, 2001. disingenuously or deceptively. Ted seems to President Bush to be Solicitor General of the Re Ted Olson me capable of drawing the clear distinction United States. I do so having the utmost Hon. PATRICK J. LEAHY, that any Solicitor General who has been on confidence in his ability, his loyalty to coun- try, his fidelity to the Constitution and his Russell Senate Office Building, the ramparts on various contentious issues personal integrity. Wahsington, DC. must draw between his or her own aspira- DEAR PAT: I’m not sure if Ted Olson needs My professional and personal association tions for the directions in which the law a boost from the other side or not for Solic- with Ted Olson began 20 years ago when he itor General, but I did want to offer one. Ted should be pushed, and his or her best under- joined the Reagan administration and served is just as conservative as his writings and standing of where the law presently is and as Assistant Attorney General, Office of clientele suggest. But on the assumption where the Supreme Court ought to be nudg- Legal Counsel under Attorney General Wil- that Larry Tribe is not high on the appoint- ing it, applying criteria less personal and liam French Smith. I was, at that time, Di- ment list for this Administration, I did want more inclusive than those driving any indi- rector of the Federal Bureau of Investiga- to say that I’ve known Ted since we worked vidual advocate. Put simply, I write this let- tion. Few positions in our government are together on a Supreme Court case— ter in Ted Olson’s support in the expecta- more sensitive or important to our govern- Metromedia v. San Diego—20 years ago and tion, and on the understanding, that his tes- ment and the administration of justice than that I’ve always been impressed with his tal- timony during his confirmation hearing, and is the O.L.C. Ted carried out his responsibil- ent, his personal decency and his honor. He the other evidence that the Senate Judiciary ities with a calm and steady hand, reflecting would serve with distinction as Solicitor Committee will gather, will show him to be legal acumen and common sense, both im- General. both able and willing not simply to articu- portant attributes for the ‘‘Attorney Gen- Sincerely, late the Administration’s or his own legal eral’s lawyer’’. In staff meetings his input FLOYD ABRAMS. philosophy but to represent well the United and advice seemed consistently sound. States of America as his ultimate client be- In private practice I have had occasion to work with Ted on some matters of common HARVARD UNIVERSITY LAW SCHOOL, fore the Supreme Court, keeping a firm grip Cambridge, MA, March 5, 2001. on what is best for that client and for the interest and have found the same high level of competence and judgment. He is one of Hon. PATRICK J. LEAHY, Constitution, not simply for the President’s U.S. Senate, philosophical agenda. our nation’s foremost appellate advocates and has earned widespread admiration for his Washington, DC. Of course, any Solicitor General must DEAR PAT: As one who knows Ted Olson analytical and advocacy skills. If he is con- speak for the Administration he or she rep- and disagrees with him on many important firmed, he will serve his country and the issues, I nonetheless write in support of his resents and must, within limits, espouse its cause of equal justice under law with great confirmation as Solicitor General. views. And any advocate must, to some de- dedication. An explanation may be called for. After gree, draw on his or her own views in decid- Ted has been a member of the Legal Advi- all, Ted was the oral advocate who opposed ing what to argue and how. But the special sory Committee of the National Legal Center for the Public Interest, which I chair. His me in the United States Supreme Court in responsibility of the Solicitor General, both the first of the two arguments between Vice periodic review of the work of the Supreme to the Court and to the country, requires an Court has been insightful and helpful. President Gore and now President (then-Gov- advocate with the capacity and the char- ernor) Bush, and Ted’s were the briefs that I On a more personal note, I have known Ted acter, on crucial occasions, to rise above his sought to defeat in the briefs I wrote and as a thoughtful and caring friend for many or her Administration’s pet theories and to filed for Vice President Gore in both of the years. I believe him to be honest and trust- two Bush v. Gore cases. Ted’s views of equal advise the Court in ways that may not al- worthy and he has my full trust. He is the protection, of Article II, and of 3 U.S.C. § 5, ways advance the political priories of the kind of person I would want to turn to for were views I believed, and continue to be- government. Sometimes the Solicitor Gen- help, professional or otherwise, in time of lieve, are wrong. Although his views of Arti- eral must defend the actions of Congress need. Having survived five Senate confirmations cle II and of 3 U.S.C. § 5 ultimately convinced even when those actions were opposed by the of my own, I have a full awareness of the only three Justices, his overall approach to Executive Branch. Sometimes the Solicitor Senate’s solemn responsibility to advise and the case won the presidency for his client. It General must decline to defend the actions of consent in these matters. I do hope you will surely cannot be that anyone who took that Congress, even when supported by the Execu- give some weight to the opinions of those prevailing view and fought for it must on tive, when they plainly conflict with the who know and respect Ted Olson. The Presi- that account be opposed for the position of Constitution. Myriad examples could be dent’s choice is a very good one. I would not Solicitor General. Because Ted Olson briefed have written this letter if I did not firmly and argued his side of the case with intel- given, but the general point is simple: Some advocates are too bound up in their own believe this to be true. ligence, with insight, and with integrity, his Respectfully, advocacy on the occasion of the Florida elec- views, and in their duty to their immediate WILLIAM H. WEBSTER. tion litigation—profoundly as I disagree with clients narrowly conceived, to act as counsel in this broader and higher sense. Some are him on the merits—counts for me as a THE AMERICAN SPECTATOR, ‘‘plus’’ in this context, not as a minus. That too blinded by their own perspectives to see ARLINGTON, VA, May 14, 2001. his views coincide with those of a current beyond them. Having observed Ted Olson in Hon. ORRIN G. HATCH, Court majority on a number of vital issues a number of situations, and having watched U.S. Senate, Washington, DC. as to which my views differ deeply should his career from afar, I would not expect him DEAR SENATOR HATCH: Contrary to the not rule him out. to be in that troublesome category. I would Washington Post’s May 11 story by Thomas I am willing to believe that the five Jus- expect him, rather, to have the open-minded- B. Edsall and Robert G. Kaiser, we never tices who in essence decided the recent presi- ness and breadth of perspective to meet the ‘‘said that [Arkansas] project story ideas, dential election thought they were genuinely legal issues involving the stories produced by higher standard I am articulating here. My acting to preserve the rule of law and to pro- the project and other directly related mat- tect the constitutional processes of democ- letter of support, at any rate, is premised on ters were discussed with Olson by staff mem- racy from being undermined by a post-elec- that expectation, and on the belief that the bers, and at dinner parties of Spectator staff- tion recount procedure that they viewed as confirmation hearings will bear out that op- ers and board members.’’ Apparently they chaotic, lawless and essentially rigged. I be- timistic prediction. got the idea from David Brock. Edsall’s main lieve that view was profoundly misguided In the end, only Ted Olson’s performance source on the Olson matter, and an indi- and that the Court’s majority deserves se- in the role of Solicitor General will prove vidual who has repeatedly acknowledged his vere criticism not only for its misconception deep bias against Olson and his former em- whether I am right or wrong in this hopeful of reality but also for its breathtaking fail- ployer The American Spectator. In quoting ure to explain its legal conclusions in terms evaluation. My strong sense, however, based him, the reporters might have mentioned his that could at least make sense to an in- on what I now know, is that, as Solicitor compromised credentials. formed but detached observer. But I do not General, Ted Olson will perform his role with Although Mr. Brock has lately claimed to lay that failing at Ted Olson’s feet; he acted honor, and with distinction. have been part of the so-called Arkansas as a responsible (if also misguided) advocate. Best wishes always, Project, he was not. The record on that is in- The blunder was the Court’s own doing. LAURENCE H. TRIBE. disputable. During his time at the magazine

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY May 24, 2001 CONGRESSIONAL RECORD — SENATE S5595 it was clear to everyone concerned—he was to him at parties in the Washington, DC of the Pacific in 1962. He practiced law very public about this—that he was not part area. I have not spoken to Mr. Brock for with the distinguished firm of Gibson, of the project. His well-known years. Starting some time ago, Mr. Brock de- Dunn, and Crutcher from 1965 to 1971 as ‘‘Troopergate’’ story originated and was veloped a marked, publicly-expressed animus an associate, and then as a partner for completed before any such project existed. If toward Mr. Olson and his wife. he spoke to Mr. Olson during those years it I chose to become affiliated with Gibson, almost a decade, until 1981. And then was as a reporter pursuing his own stories Dunn primarily because of Mr. Olson. Al- from 1984 to the present time—he was and not as a representative of a ‘‘project’’ he though I did not know Mr. Olson personally Assistant Attorney General, legal distanced himself from. Pleszczynski made before I interviewed with the firm, he has a counsel, for the Department of Justice that clear to Edsall. Brock’s present claim reputation as one of the best lawyers in from 1981 to 1984. He came in with the that he was calling Olson as part of the Washington, a rigorous and demanding law- administration of President Reagan. ‘‘project’’ is a deceit. yer with a record of unflinching devotion to What is more, if Mr. Olson’s firm, Gibson, principle. In the years since I became affili- I was elected in the same year, and I Dunn and Crutcher, was paid from project ated with the firm, I have worked closely knew of his work, having served on the funds (like all recipients of checks from The with Mr. Olson, including participation on Judiciary Committee beginning imme- American Spectator), the firm would not numerous cases for the firm’s clients. I can diately after taking my oath of office have known which internal account the mag- personally vouch for his extremely high pro- after the 1980 election. azine used for its payments. For all Gibson, fessional standards; for his refusal to accept Dunn and Crutcher knew, the magazine was second-best efforts from himself or anyone He is a real professional. He has ar- paying it from funds derived from general in- around him; and for his fairness. I can also gued some of the most important cases come. vouch, without reservation, for his great in- before the Supreme Court of the United Mr. Olson’s statements that he was ‘‘not tegrity. States. involved in the project in its origin or its In my view, he will make an excellent So- On December 11, 2000, he argued the management’’ and that he was ‘‘not involved licitor General, and the Members of the Judi- landmark case of Gov. George W. Bush in organizing, supervising or managing the ciary Committee should vote to confirm him conduct of [the magazine’s investigative] ef- with confidence. v. Vice President Albert Gore where forts’’ are accurate and thus truthful. DOUGLAS R. COX. the decision of the Supreme Court of One final point, the precedent set by politi- the United States essentially decided cians seeking to probe the methods of pay- We were the two individuals charged by the conflict on the Florida election. I ment and of reportage practiced by journal- the American Spectator with implementing was present that day to hear that his- ists has a chilling effect on the First Amend- what has come to be called the ‘‘Arkansas toric argument and can attest person- ment. We would hope other journalists would Project,’’ an effort to support investigative recognize this danger to journalistic endeav- ally to his competency and his profes- journalism in Arkansas that was specially sionalism. ors. funded by Richard Mellon Scaife. (Dave Hen- Sincerely, derson also served for a while on the Spec- There have been some concerns about R. EMMETT TYRRELL, Jr., tator Board.) his partisanship. I am confident Mr. Editor-in-Chief. In connection with our investigative re- Olson can separate partisanship from WLADYSLAW PLESZCZYNSKI, search for this journalistic project, we made his professional responsibilities as So- Editor, The American numerous trips to Arkansas and elsewhere to licitor General of the United States. It Spectator Online. speak first-hand to witnesses. Nothing that we did in connection with the ‘‘Arkansas is not surprising that President Bush I am a partner in the law firm of Gibson, Project’’ broke the law. Mr. Shaheen, a spe- would appoint a Republican to be So- Dunn & Crutcher LLP. I became affiliated cial counsel, reached the same conclusion licitor General, nor is it surprising with the firm, originally as an ‘‘of counsel’’ after an extended investigation. Rather, we that President Bush would appoint Ted employee, in 1993. Starting in 1994, I worked were conducting the same kind of investiga- Olson to this important position in with Theodore Olson on certain legal mat- tive journalism, talking to witnesses, re- light of Mr. Olson’s accomplishments, ters for the firm’s client, the American Spec- viewing documents, that many journalists do tator. That legal work included legal re- his demonstration of competency, and every day. Such activities were not only law- his assistance to President Bush on search regarding criminal laws potentially ful, but encouraged in an open and free de- implicated by allegations of certain conduct mocracy, and fully protected by the First that major case. by public officials, including President and Amendment. There was nothing at all im- Some questions have been raised as Mrs. Clinton, as reported in the major media. proper about the investigative fact work to some answers Mr. Olson gave at the That research was incorporated into an arti- that we performed for the American Spec- confirmation hearing. A request was cle that the American Spectator published in tator. 1994. The magazine published the article made to have an investigation of some In performing our investigative work for of what Mr. Olson did. I took the posi- under the by-line of ‘‘Solitary, Poor, Nasty, the American Spectator, we were not di- Brutish and Short,’’ an obviously fictional rected or managed in any way by Theodore tion publicly in interviews and then law firm drawn from the famous quote from Olson. He did not participate, nor was he later in the Judiciary Committee exec- Hobbes, that the magazine had listed for asked to participate, in either the planning utive session when we considered Mr. many years on its masthead as its legal or conduct of the ‘‘Arkansas Project.’’ Con- Olson’s nomination, saying I was pre- counsel. It was, however, widely known that trary assertions, made by those lacking per- pared to see and support an investiga- Mr. Olson and I had prepared the material in sonal knowledge and with a political or per- tion if there was something to inves- the article. sonal agenda, are simply false. tigate but that there had not been any In addition to periodic legal work for the May 15, 2001. allegation of any impropriety on Mr. client, Mr. Olson and I over the years co- DAVID W. HENDERSON. wrote similar satiric pieces involving legal Olson’s part in terms of any specifica- The PRESIDING OFFICER. The Sen- aspects of various matters involving the tion as to what he was supposed to Clinton Administration. Some, but not all, ator from Alabama is recognized. have said that was inconsistent or Mr. SESSIONS. Mr. President, on be- of those pieces appeared under the ‘‘Solitary, what he was supposed to have said that half of Senator HATCH, I yield time to Poor’’ by-line. was not true. During my work with Mr. Olson for the the distinguished Senator from Penn- American Spectator, I never heard the sylvania. I am not totally without experience phrase ‘‘Arkansas Project’’ until it had be- The PRESIDING OFFICER. The Sen- in investigative matters. But a start- come the subject of media reporting. I am ator from Pennsylvania is recognized. ing point of any investigation has to be not aware of any fact that would support or an allegation, something to inves- in any way credibly suggest that Mr. Olson Mr. SPECTER. Mr. President, I thank my colleague from Alabama for tigate. That was not provided. I called was involved in the origin, management or at that hearing for some specification. supervision of the investigative journalism yielding time to me. I have sought rec- projects funded by one of the Scaife founda- ognition to support the nomination of If you make a charge, even in a civil tions that became know as the ‘‘Arkansas Theodore Olson to be Solicitor General case, there has to be particularity al- Project.’’ In drafting our articles, I never of the United States. leged, there has to be some specifica- spoke with anyone at the American Spec- Mr. Olson comes to this position with tion as to what the impropriety was, tator to obtain any facts, relying instead on an excellent academic and professional let alone wrongdoing in order to war- already-published media reports, and legal background. He received his law degree rant an investigation. resources such as statutes, congressional re- ports, and the like. from the University of California at I said at the hearing, although there I met David Brock years ago, and in the Berkeley in 1965 after having received a was a certain amount of interest in early 1990s on occasion I would see and speak bachelor’s degree from the University moving the nomination ahead last

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S5596 CONGRESSIONAL RECORD — SENATE May 24, 2001 Thursday, that I would support an in- that the vote was scheduled on Mr. studied and written about the Fed- vestigation and would not rush to judg- Olson’s nomination. Some of the Sen- eralist Papers, the Framers, and the ment if there was something to inves- ators questioned the article. Constitution. He earnestly believes in tigate. But nothing was forthcoming to Subsequently, after the facts were the Constitution’s design of limited warrant an investigation. One of the examined, the Washington Post en- and separated powers. He sincerely and Judiciary Committee members said, dorsed Ted Olson for this position. deeply believes that the States cannot well, Mr. Olson was not forthcoming at Nonetheless, Senator HATCH agreed to deny any person equal protection of the Judiciary Committee hearing. I at- delay further and allow the matter to the laws. He understands that history tended that hearing in part, and there be examined even more thoroughly. and theory of our fundamental law. were very few Senators there. But if That is why we are here today. Now There is no doubt about that, in my there was some concern that Ted Olson that most of the partisan rhetoric has opinion. And he has been involved with wasn’t forthcoming, the time to go receded, I am glad the Senate will fol- it all of his professional career—in into it was at the hearing or, if not at low the moderate and wise voices of Government and out of Government, the hearing, Mr. Olson was available Professor Laurence Tribe, Robert Ben- including many successful years as a thereafter. nett, Beth Nolan, Floyd Abrams, and partner in one of the great law firms in I asked the Senator who raised the Senator ZELL MILLER in moving this the country: Gibson, Dunn & Crutcher. question about his not being forth- nomination to confirmation. Second, Mr. Olson’s distinguished ex- The Solicitor General is the most im- coming if he had talked to Mr. Olson, perience as a lawyer demonstrates his portant legal advocate in the country. and the answer was that he had not. So understanding that the Constitution The job has been called the greatest based on the record, it is my conclu- has real and meaningful impact on the lawyer job in the world. As U.S. attor- sion that any of the generalized lives of ordinary Americans. He has ap- ney for almost 15 years, I had the honor plied constitutional theory as an As- charges as to Mr. Olson haven’t been of standing up in court on a daily basis sistant Attorney General for the Office substantiated at all, haven’t been to say: ‘‘The United States is ready, raised to the level of specification to Your Honor.’’ I spoke for the United of Legal Counsel. That is a critical po- warrant any proceeding or any inves- States in its Federal district court nor- sition in the Department of Justice tigation. mally in the Southern District of Ala- that provides legal counsel in the De- I dare say that if those on the other bama. But what greater thrill could partment of Justice and to all govern- side of the aisle had sought to block there be, what greater honor than to mental agencies, usually including the this nomination from coming up today, stand before the great U.S. Supreme President of the United States. He held there were ample procedural opportuni- Court and represent the greatest coun- that office in previous years. He has ties for them to do just that. try in the history of the world and be done this in his own practice when ad- So on this state of the record, on the the lawyer for that country in that vocating before the courts, including state of Ted Olson’s excellent academic great Court? Ted Olson is worthy of the Supreme Court of the United and professional record, and his estab- that job. He and his subordinates will States. lished expertise as an advocate before shape the arguments in cases that In Aetna Life Insurance Company v. the Supreme Court of the United come before the Federal appellate Lavoie, he advocated the due process States, and understanding the dif- courts and, most importantly, before rights of litigants who faced a judge ference between partisanship when he the Supreme Court of the United who had a conflict of interest in the is in a partisan context as opposed to States. In this fashion, law is shaped case but would not recuse himself. He professionalism when he is rep- slowly and carefully one case at a time represented those litigants to ensure resenting the United States of America over a period of years. that they would get a fair judge. In before the Supreme Court, I intend to I note, however, that I have a slight Rice v. Cayetano, he advocated the vot- support this nomination and vote aye. disagreement with my distinguished ing rights of those excluded because of I thank the Chair. I thank my friend colleague from Vermont on the ques- their race. And in Morrison v. Olson, he from Alabama, the distinguished Sen- tion of this being an extraordinarily advocated the position that the separa- ator from Alabama. I yield the floor. more sensitive a position than others. tion of powers principle required pros- The PRESIDING OFFICER. The Sen- While it is a position that requires ecutors to be appointed by the execu- ator from Alabama. great skill and legal acumen, the truth tive branch, a position that this entire Mr. SESSIONS. I thank the Senator is that the Solicitor General does not Congress has now come to embrace from Pennsylvania for his outstanding do a lot of things independently. Basi- many years later. That was a coura- remarks. He does, indeed, have a pas- cally, the Solicitor General asks the geous position he took. Ultimately, Mr. sion for truth and he pursues those he Supreme Court, or perhaps some other Olson won because his position was believes are not telling the truth ag- lesser court if he chooses, to rule one validated by subsequent events. gressively in his examination and de- way or the other. He is not making de- Mr. Olson had a legal career which fends those he thinks are being un- cisions independently about policies or has, to a remarkable degree, placed fairly accused. I have seen his skill in procedures such as an FBI Director him as a key player in many of the im- committee hearings many times. Sen- would make or the Deputy Attorney portant legal battles of our time. It is ator SPECTER raised a number of ques- General or the Attorney General. He is remarkable, really. These cases, many tions about the allegations that were basically in court constrained by the intense, have enriched him. They have made about Mr. Olson. But his ques- justices before whom he appears. And enhanced his judgment and wisdom. I tions concerning the merit of the alle- it is, as everyone knows, critical that a can think of no one better prepared to gations against Mr. Olson were never Solicitor General maintain over a pe- help the President of the United States answered. In fact, he simply asked: riod of years credibility with the Su- and the Attorney General deal with ‘‘Precisely what is it you say he was preme Court. Ted Olson, as a regular complex, contentious, and important testifying falsely about?’’ And I don’t practitioner before the Supreme Court cases that are surely to come as the believe a satisfactory answer to this of the United States, understands that years go by. day has been given to that question. and will carefully husband his credi- When he was before the Judiciary Mr. President, I support Ted Olson’s bility with that Court as he has always Committee, I asked him: ‘‘Mr. Olson, nomination to be the next Solicitor done. are you prepared to tell the President General. I commend Senators LEAHY, The Solicitor General must be a con- of the United States no?’’ DASCHLE, HATCH, and LOTT for reaching stitutional scholar of the first order, a Presidents get treated grandly, like an agreement to have the Olson nomi- lawyer and legal advocate with broad corporate executives and Governors, nation voted on today. Certain charges and distinguished legal experience, and and they want to do things, and they were made, but they have been inves- must possess unquestioned integrity. do not want a lawyer telling them they tigated and, in my view, have been Ted Olson excels in each of these cat- cannot do it. But sometimes there has found wholly without merit. The egories. to be a lawyer capable of telling the charges were raised in a newspaper ar- First, Mr. Olson is a constitutional President ‘‘no.’’ ‘‘No, sir, you cannot do ticle in the Washington Post the day scholar of the highest order. He has that. The law will not allow that. I am

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY May 24, 2001 CONGRESSIONAL RECORD — SENATE S5597 sorry, Mr. President, we will try to fig- mittee. I have the transcript of the tes- Laurence Tribe, the professor who ure out some other way for you to do timony he gave. litigated against him in Bush v. Gore, what you want to do; you cannot do This is what happened at the com- said: that.’’ mittee. He was sitting right there in It surely cannot be that anyone who took I believe, based on Ted Olson’s expe- the room testifying before us. Senator the prevailing view [in Bush v. Gore] and rience, his closeness to the President, LEAHY went right to the heart of the fought for it must on that account be op- the confidence the President has in matter, as he had every right to do. posed for the position of Solicitor General. him, he will be able to do that better This was his question: ‘‘Were you in- Because Ted Olson briefed and argued his than any person in America. volved in the so-called Arkansas side of the case with intelligence, with in- sight, and with integrity, his advocacy on Finally, Mr. Olson is a man of un- Project at any time?’’ the occasion of the Florida election litiga- questioned integrity. For example, The answer: tion—profoundly as I disagree with him on when asked on numerous occasions to Mr. Olson: As a member of the board of di- the merits—counts for me as a ‘‘plus’’ in this criticize the justices of the Florida Su- rectors of the American Spectator, I became context, not a minus. If we set Bush v. Gore preme Court in Bush v. Gore litigation, aware of that. It has been alleged that I was aside, what remains in Ted’s case is an unde- he always declined. He always re- somehow involved in that so-called project. I niably distinguished career of an obviously was not involved in the project in its origin exceptional lawyer with an enormous spected the justices and their court, or its management. and even if he disagreed with their breadth of directly relevant experience. No one found fault with that. That legal opinion—and his position was I certainly agree with that. That is statement has not been disputed to later validated by the U.S. Supreme from Al Gore’s lawyer. this day. There is certainly no evidence Court. Mr. Olson’s conduct in the most Walter Dellinger, former Solicitor to say otherwise. General under President Clinton, said famous case of this generation, as well He stated: as his reputation, won him the endorse- when Ted Olson was at the Office of I was not involved in the project in its ori- ment of his adversary, Professor Lau- Legal Counsel he ‘‘was viewed as some- gin or its management. As I understand it, one who brought considerable integrity rence Tribe the famed and brilliant ad- what that was was a contribution by a foun- vocate for Al Gore. to the decision-making.’’ dation to the Spectator to conduct investiga- Beth Nolan, former Clinton White Indeed, a President assembles an ad- tive journalism. I was on the board of the ministration, and he is entitled to have American Spectator later on when the alle- House counsel and Reagan Department around him people in whom he has gation about the project was simply that it of Justice Office of Legal Counsel at- great confidence, people whom, in the did exist. The publisher at that time, under torney in a letter said: most critical points of his administra- the supervision of the board of directors, [W]e all hold Mr. Olson in a very high pro- tion, he trusts to give him advice on hired a major independent accounting firm fessional and personal regard, because we be- to conduct an audit to report to the pub- lieve that he made his decisions with integ- which he can rely and make decisions. lisher and, therefore, to the board of direc- rity, after long and hard reflection. We can- What greater validation is there than tors with respect to how that money was not recall a single instance in which Mr. perhaps the greatest lawsuit of this funded. I was on the board at that time. Olson compromised his integrity to serve the century for the Presidency of the Mr. Olson was on the board when expedients of the [Reagan] administration. United States, to be decided by the they conducted an investigation that Floyd Abrams, esteemed first amend- Court, and whom did President Bush, the board decided to do. ment lawyer, stated in March 2001: out of all the lawyers in America, Mr. Olson continued his answer in I’ve known Ted since we worked together choose? Did he want someone who was Committee: on a Supreme Court case—Metromedia v. purely a political hack, someone who As a result of that investigation, the mag- San Diego—20 years ago and . . . I’ve always was a political guru, or did he want the azine, while it felt it had the right to con- been impressed with his talent, his personal best lawyer he could get to help him duct these kinds of investigations, decided decency and his honor. He would serve with win the most important case facing the that it was not in the best interest of the distinction as Solicitor General. country maybe of the century? Whom magazine to do so. It ended the project. It es- Harold Koh, former Clinton Adminis- did he choose? Isn’t that a good reflec- tablished rules to restrict that kind of activ- tration Assistant Secretary of State in tion on Ted Olson’s reputation that the ity in the future. February of this year: President chose him, and it is not sur- Senator LEAHY interrupted him Ted Olson is a lawyer of extremely high prising that Al Gore chose someone of there. If he did not say enough, Sen- professional integrity. In all of my dealings the quality of Laurence Tribe, two ator LEAHY had every opportunity to with him, I have seen him display high moral great, brilliant litigators in the Su- ask him more questions. He was still character and a very deep commitment to preme Court that day. talking about it when Senator LEAHY upholding the rule of law. Robert Bennett, attorney for former Mr. Olson has written and he has interrupted him and stopped him. The President Bill Clinton during a lot of thought deeply about constitutional transcript shows: this litigation and impeachment mat- law. He is not professor, however, as . . . to restrict activities of the kind in the ters also supports Mr. Olson’s nomina- many of our Solicitors General have future and put it— Senator LEAHY: tion. He is a well-known defense lawyer been. He has been a lawyer involved in And Senator LEAHY asked some other ques- and certainly very close to President Government in all kinds of issues. Dur- tions about the same matter which Mr. Clinton. He came to the markup when ing that time, he has gained extraor- Olson answered and that I do not think have we voted on this in committee and sat dinary insight, skill, and knowledge been credibly disputed either. I submit that throughout the markup. This is what about how Government works. He has the man told the truth absolutely, indis- he wrote to the Committee: incredibly unique and valuable quali- putably. ties to bring to this office. I really believe, as Senator SPECTER While I do not have any personal knowl- There is simply no better lawyer and said in Committee, we ought to be re- edge as to what role, if any, Mr. Olson played in the ‘‘Arkansas Project’’ or the full extent no better person to fulfill the awesome sponsible around here. We ought to be of his relationship with the American Spec- responsibilities of the Solicitor Gen- careful about alleging that a nominee tator, what I do know is that Ted Olson is a eral of the United States than Ted for a position such as Solicitor General truth-teller and you can rely on his represen- Olson. It is my privilege to support him of the United States is not being hon- tations regarding these matters.... He is a and advocate his nomination. est or is somehow being dishonest man of great personal integrity and credi- I know there are a number of ques- about what he says. I do not believe bility and should be confirmed. tions people will raise and have raised, there are any facts to show that. That So, then-Governor Bush chose a man but I believe, as Senator SPECTER is why I care about how we proceed, to represent him in the biggest case in pointed out in our hearings, we have to and I am glad an agreement was his life. He chose a man who had a rep- see where the beef is, what is the sub- reached that the matter could come utation of this kind among opposing stance of the complaints against him. forward. lawyers, lawyers who do not agree with One of the issues that came up was On the question of Mr. Olson’s integ- him politically. That is what they say that he minimized his involvement in rity, we have a number of people who about him. the ‘‘Arkansas Project’’ and that he did vouch for him. Let’s look at these He is uniquely qualified for the job, not tell the truth before the com- Democrats. and he has the unique confidence of the

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY S5598 CONGRESSIONAL RECORD — SENATE May 24, 2001 President of the United States. This is mittee before we even had the hearing. The PRESIDING OFFICER. Without what we ought to do: We ought to give That was something he had written and objection, it is so ordered. the President whomever he wants in produced. We all knew about that. Mr. SESSIONS. I suggest the absence his administration if we can justify I would just say this. A man’s profes- of a quorum. doing so. If there is some serious prob- sional skill, his integrity, is deter- The PRESIDING OFFICER. The lem, we have a right to inquire into mined and built up over a period of clerk will call the roll. that. That has been inquired into and years. We in this body, as Senators, The assistant legislative clerk pro- no legitimate basis has been developed know we can make a speech here and ceeded to call the roll. on which to oppose the nomination. we can misspeak, and we have one of Mr. NICKLES. Mr. President, I ask Then the question is: ‘‘Should a our staff, if they have a little time, go unanimous consent that the order for nominee be confirmed?’’ And the pre- back and read it and correct the the quorum call be rescinded. The PRESIDING OFFICER. Without sumption is that he should unless there record. objection, it is so ordered. is a problem. A nominee cannot do that. What Ted Mr. NICKLES. Mr. President, I con- There were a number of ‘‘charges’’ Olson said, he said under oath. I don’t gratulate Senator HATCH and Senator suggested. I will mention briefly that see he made a mistake at all. We never LEAHY for bringing the nomination of Mr. Olson wrote articles for the Amer- apologize around here. We make mis- Ted Olson to be Solicitor General to ican Spectator and received some pay takes. We misstate facts. I have done the floor of the Senate. I am delighted for some of them. He admitted that be- it. I try not to. As a former prosecutor, we are going to have a vote on Mr. fore the hearings. When he was asked I always try not to misstate the facts. Olson. I know him well. I think he will to produce what he published, he sub- I work at it very hard. I still find when be an outstanding Solicitor General mitted those articles to the Com- I leave the floor sometimes I have not only for this President and this ad- mittee. Everybody knew that. After misspoken. But are you going to call a ministration but for our country as the hearing, Senator KENNEDY said he press conference and try to apologize? well. was going to vote for him. He was sat- We just do it and get away with it. This Mr. Olson’s qualifications are beyond isfied. There was no dispute about his man told the truth. I don’t see where reproach. He was an undergraduate at involvement with the magazine. he told anything that was a lie. the University of the Pacific and re- His opponents said Mr. Olson played I know there are some activists who ceived his law degree from the Univer- word games. Mr. Olson clearly re- do not want to see the man who han- sity of California at Berkeley. He has sponded that he wasn’t involved in the dled the Bush v. Gore case confirmed. been a partner at Gibson, Dunn & management or the origin of this so- They don’t want to see confirmed a Crutcher, one of the nation’s leading called Arkansas Project, but that when man who gave legal advice to the law firms, from 1965 to 1981, and also he was at dinners and he talked about American Spectator, who thought from 1984 until the present time. He the public Clinton scandals over din- there was something rotten in Arkan- served as Assistant Attorney General ner. Anybody knows if you are at a sas and went out and investigated it. from 1981 to 1984, providing legal advice luncheon and you are talking, or at a How many of them went to jail over it? to President Reagan and Attorney Gen- dinner with an editor and he is writing Some of them are still in the bastille, eral William French Smith and other political articles of this kind, you are perhaps for crimes they committed executive branch officials. going to talk about it. But it doesn’t that this magazine investigated. What He has handled a lot of very impor- mean he originated the project or man- is wrong with that? Isn’t this America? tant cases. Probably the best known aged the project in any way, and that I don’t see anything wrong with Mr. case was Bush v. Gore. No matter is what he said, ‘‘I did not do.’’ Scaife giving money, legally, to inves- which side of that case you supported, With respect to Mr. Olson’s represen- tigate a stinking mess. That is what we you had to admire the skill with which tation of David Hale, he plainly said had in Arkansas. he argued a very complicated and, that he was not compensated for that The Independent Counsel investiga- needless to say, very important case. work. He said he had helped Hale from tions and the impeachment were tough In addition, he has argued numerous the beginning, but that he was never times for this country. Those matters other very significant cases before the paid for it—he never got paid for rep- are behind us. We are at a point now Supreme Court and other federal and resenting him. He never denied rep- where we have a new administration state courts. I will include for the resenting David Hale, being asked by that is building its team. It is time RECORD a highlight of seven of these another lawyer, I believe he said, to that the President be able to have his important cases. help him. This was supported by the top constitutional adviser on board, be Ted Olson has been on both sides of Independent Counsel Ray who has stat- able to do his duty. the courtroom battles. He has defended ed that the Shaheen Report on whether I am glad we can have this debate. the Government and counseled the Mr. Hale was paid to testify found no Some see this nomination differently. I President. As Assistant Attorney Gen- evidence of any improprieties here. respect their views. Ultimately, how- eral, he dealt with limiting govern- With respect to an American Spec- ever, there is no dispute based on facts ment power as well. In private prac- tator article on ’s death, in the record. I am glad this nomina- tice, he has defended private interests Mr. Olson did not write it. He told the tion is being moved forward and that against the Government. In his argu- magazine employees that he didn’t put we can have an up-or-down vote on it. ments on both sides of the courtroom, much stock in it, but it was all right I believe Mr. Olson will be confirmed. he has presented factual cases and posi- for the magazine to publish it. The I think he should be. I am honored to tions in both Federal and state courts, First Amendment generally protects cast my vote for him. I urge others to arguing for the government and the press when it publishes articles on do so likewise. against the Government. That type of public figures. It is a free country. I do Mr. President, I yield the floor and experience is almost unequaled in a not believe that the magazine was sued suggest the absence of a quorum. nominee for Solicitor General. over it. Mr. Olson didn’t put much The PRESIDING OFFICER. The He will be an outstanding credit to stock in it, but if the magazine wanted clerk will call the roll. the administration and to the country. to publish it, fine. That is what I un- The assistant legislative clerk pro- His nomination is supported by liberals derstood his statement to be. That is ceeded to call the roll. and conservatives, by individuals such very different from the nominee writ- Mr. SESSIONS. Mr. President, I ask as , Robert Bennett and ing the article or submitting it in a unanimous consent that the order for Laurence Tribe. Different people with brief to a court. the quorum call be dispensed with. different viewpoints have reached the There were questions raised about a The PRESIDING OFFICER. Without same conclusion I have reached: Ted chart that he prepared that showed the objection, it is so ordered. Olson will be an outstanding Solicitor federal and state criminal offenses that Mr. SESSIONS. Mr. President, I ask General, and he should receive our very the Clintons could have violated if pub- unanimous consent that any time used strong support. I am delighted we will lic allegations were proven in a court in the quorum call subsequent to this be confirming him as the next Solicitor of law. He gave the chart to the Com- be charged against both sides equally. General of the United States.

VerDate Mar 15 2010 04:11 Dec 20, 2013 Jkt 081600 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 J:\ODA425\1997-2008-FILES-4-SS-PROJECT\2001-SENATE-REC-FILES\RECFILES-NEW\S mmaher on DSKCGSP4G1 with SOCIALSECURITY May 24, 2001 CONGRESSIONAL RECORD — SENATE S5599 I ask unanimous consent to print the (The remarks of Mr. STEVENS are lo- NOMINATION OF THEODORE list of cases to which I referred in the cated in today’s RECORD under ‘‘Morn- BEVRY OLSON, OF THE DISTRICT RECORD. ing Business.’’) OF COLUMBIA, TO BE SOLICITOR There being no objection, the mate- Mr. STEVENS. Mr. President, I sug- GENERAL OF THE UNITED rial was ordered to be printed in the gest the absence of a quorum. STATES RECORD, as follows: The PRESIDING OFFICER. The The PRESIDING OFFICER. Under LEADING CASES TED OLSON ARGUED clerk will call the roll. the previous order, the clerk will re- Ted Olson has argued or been the counsel The legislative clerk proceeded to port the nomination. of record in some of the leading cases before call the roll. The assistant legislative clerk read the Supreme Court: Mr. HATCH. Mr. President, I ask the nomination of Theodore Bevry Rice v. Cayetano (2000)—Counsel of record Olson, of the District of Columbia, to for the prevailing party in this case in which unanimous consent the order for the be Solicitor General of the United the Court struck down as a violation of the quorum call be rescinded. States. Fifteenth Amendment. Hawaiian legislation The PRESIDING OFFICER (Mr. restricting voting in certain elections to Mr. WARNER. Mr. President, I rise ALLARD). Without objection, it is so or- citizens based on racial classifications. today in support of the nomination of a U.S. v. Commonwealth of Virginia (1996)— dered. Virginian, Theodore ‘‘Ted’’ Olson, to Whether Virginia Military Institute male- UNANIMOUS CONSENT AGREEMENT serve as the Solicitor General of the only admissions policy violates the Equal Mr. HATCH. Mr. President, I ask United States. Protection Clause of the Fourteenth Amend- unanimous consent that all time be Article II, Section 2 of the Constitu- ment to the Constitution of the United tion provides that the President: States. Mr. Olson was counsel of record for yielded back on the motion and the the Commonwealth of Virginia and Virginia motion be agreed to. I further ask con- shall nominate, and by and with the Advice Military Institute. sent that the Senate now proceed to and Consent of the Senate, shall Garcia v. San Antonio Metropolitan Tran- the consideration of the nomination appoint...Judges of the Supreme Court, sit Authority (1985)—Whether the Tenth and all other Officers of the United and that the vote occur on the con- States.... Amendment’s reservation of powers to the firmation of the nomination with no Thus, the Constitution provides a states precluded application of the minimum intervening action or debate. I also ask wage and other employment standards of the role for both the President and the unanimous consent that following the Federal Fair Labor Standards Act to wages Senate in this process. The President vote on the confirmation of the Olson paid by the City of San Antonio to municipal has the power to nominate, and the nomination, the Senate then proceed transit workers. Mr. Olson was counsel of Senate has the power to render advice record for the United States. to two additional votes, the first vote and consent on the nomination. Immigration and Naturalization Service v. on the confirmation of Calendar No. 83, In fulfilling the constitutional role of Chadha (1983)—Striking down as unconstitu- Viet Dinh, to be followed by a vote on the Senate, I have, throughout my ca- tional legislative veto devices by which Con- the confirmation of Calendar No. 84, reer, tried to give fair and objective gress reserved to itself or some component of Michael Chertoff. Finally, I ask con- Congress the power to reverse or alter Exec- consideration to both Republican and sent that following those votes, the utive Branch actions without enacting sub- Democratic Presidential nominees at President be immediately notified of stantive legislation. Mr. Olson was counsel all levels. on the briefs for the United States. the Senate’s action, and the Senate It has always been my policy to re- OTHER LEADING CASES then resume legislative session. view nominees to ensure that the Hopwood v. Texas (5th Circuit)—Holding The PRESIDING OFFICER. Is there nominee has the qualifications nec- that University of Texas School of Law ad- objection? essary to perform the job, to ensure missions policies violate Fourteenth Amend- Mr. LEAHY. Reserving the right to that the nominee will enforce the laws ment to the Constitution of the United object. of the land, and to ensure that the States. Mr. Olson is counsel of record for stu- dents denied admission under law school ad- The PRESIDING OFFICER. The Sen- nominee possesses the level of integ- mission policy which discriminated on the ator from Vermont. rity, character, and honesty that the basis of race and ethnicity. Mr. LEAHY. So I understand, the American people deserve and expect In Re Oliver L. North (D.C. Circuit)—At- first vote would be on the Olson nomi- from public office holders. torneys fee awarded to former President nation immediately? Having considered these factors, I Ronald Reagan in connection with Iran- have come to the conclusion that Ted Mr. HATCH. That is correct. Contra investigation. Mr. Olson represented Olson is fully qualified to serve as our former President Ronald Reagan in connec- Mr. LEAHY. No objection. great Nation’s next Solicitor General. tion with all aspects of Iran-Contra inves- The PRESIDING OFFICER. Without The Solicitor General’s Office super- tigation including fee application. objection, it is so ordered. Wilson v. Eu (California Supreme Court)— vises and conducts all Government liti- Upholding California’s 1990 decennial re- The motion was agreed to. gation in the U.S. Supreme Court. The apportionment and redistricting of its con- Mr. HATCH. For the information of Solicitor General helps develop the gressional and legislative districts. Mr. all Senators, under this agreement, Government’s positions on cases and Olson was counsel to California Governor there will be three consecutive rollcall personally argues many of the most Pete Wilson. votes on these nominations. significant cases before the Supreme Mr. NICKLES. I suggest the absence I ask for the yeas and nays on the Court. of a quorum. Olson nomination. Given these great responsibilities, it The PRESIDING OFFICER. The is no surprise that the Solicitor Gen- The PRESIDING OFFICER. Is there a clerk will call the roll. eral is the only officer of the United sufficient second? The senior assistant bill clerk pro- States required by statute to be ceeded to call the roll. There appears to be a sufficient sec- ‘‘learned in the law.’’ Mr. STEVENS. Mr. President, I ask ond. Mr. Olson’s background in the law is unanimous consent that the order for The yeas and nays were ordered. impressive. He received his law degree the quorum call be rescinded. Mr. HATCH. I ask unanimous consent in 1965 from the University of Cali- The PRESIDING OFFICER. Without it be in order for me to ask for the yeas fornia at Berkeley where he was a objection, it is so ordered. and nays on the other two votes. member of the California Law Review Mr. STEVENS. Mr. President, is it in The PRESIDING OFFICER. Without and graduated Order of the Coif. order for me to speak now on a matter objection, it is so ordered. Upon graduation, Mr. Olson joined not connected with this nomination? the firm of Gibson, Dunn, & Crutcher Mr. HATCH. I ask for the yeas and The PRESIDING OFFICER. It would in 1965, becoming a partner in 1972. nays on those votes. take unanimous consent. During this time, Mr. Olson had a gen- Mr. STEVENS. I ask unanimous con- Is there a sufficient second? eral trial and appellate practice as well sent to speak for 5 minutes. There appears to be a sufficient sec- as a constitutional law practice. The PRESIDING OFFICER. Without ond. In 1981, Mr. Olson was appointed by objection, it is so ordered. The yeas and nays were ordered. President Reagan to serve as Assistant

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