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Appellate Court Names Prosecutor in Justice-EPA Case

April 24, 1986

WASHINGTON (AP) _ A special prosecutor was named Thursday to decide whether a former assistant attorney general should be indicted for lying to Congress during the Environmental Protection Agency scandal.

A three-judge panel of the U.S. Court of Appeals, following up on a preliminary inquiry by the Justice Department, appointed Washington lawyer James C. McKay to investigate Theodore Olson, former assistant attorney general for legal counsel in the Justice Department.

But the scope of the probe will be narrow; the House Judiciary Committee had recommended a wide-ranging investigation of a dozen current and former Reagan administration officials in connection with hundreds of documents the executive branch withheld from Congress in 1982 and 1983. Lawmakers were investigating alleged mismanagement in the EPA at the time.

But the Justice Department decided that a preliminary inquiry was justified of only three department officials, and the department subsequently told the court that further investigation was warranted only of Olson, said Terry Eastland, spokesman for Attorney General Edwin Meese.

Rep. Peter W. Rodino Jr., chairman of the House Judiciary Committee, said that in seeking a counsel with limited jurisdiction, Meese ″has disregarded overwhelming evidence of other possible wrongdoing raised by the committee report and appears to have made judgments that are beyond his authority under the statute.″

He said Meese’s report to the court does not address ″evidence of the withholding of suggestions of political manipulation of Superfund from Congress by department officials, and false certification submitted to Congress signed by department and White House officials.″

Rep. Mike Synar, D-Okla., a member of the House Judiciary Committee, was unhappy over the clearing of so many administration officials by Meese’s agency.

″It’s outrageous, but I’m not surprised at this Justice Department,″ said Synar.

McKay will determine whether Olson should be prosecuted for perjury or other violations of federal law in connection with testimony he gave March 10, 1983 before a House Judiciary subcommittee regarding the withholding of EPA documents from Congress.

″I deny that the charges are valid or have any substance to them,″ Olson said in an interview from his private law office in Washington. ″I’d like to state as strongly as I can that I never misled Congress and I am confident that this matter will be resolved in a way which exonerates me from these charges.″

Olson told the subcommittee on monopolies and commercial law that Justice’s Office of Legal Counsel had delivered to Congress everything that was relevant to its inquiry into EPA.

According to a 48-page report signed by Meese on April 10, and released Thursday in connection with the department’s request for a special prosecutor, Olson’s office had failed to provide the House panel with at least five documents.

One of the documents cited in the Meese report was an Oct. 25, 1982 memorandum to President Reagan. It said that EPA documents withheld from Congress contained no evidence of wrongdoing and urged Reagan to invoke executive privilege to keep them from Congress. In fact, the House Judiciary Committee said in a recent 1,300-page report, the documents contained some evidence of political manipulation by the Reagan administration of the EPA’s Superfund toxic waste cleanup program.

In Thursday’s interview, Olson said that he told the subcommittee at the time that no decision had been made regarding whether to release internal documents, such as the Oct. 25 memo.

Meese’s report to the appeals court also noted that Olson told the House subcommittee that he did not recall being told by anyone associated with EPA that the agency was willing to turn over disputed documents to the subcommittees.

Former EPA Administrator Anne Gorsuch Burford, who resigned at the height of the controversy, has said she urged turning many documents over to Congress, especially if they contained any evidence of wrongdoing, but that the Justice Department rejected her advice.

″There is evidence suggesting that Mr. Olson may have been aware of statements that EPA was willing to turn over the documents, and that he may have been told as much by EPA officials,″ said Meese’s report.

In Thursday’s interview, Olson said he would ″stand by my testimony.″

The Justice Department also investigated the conduct of Edward Schmults, former deputy attorney general, and Carol Dinkins, a former assistant attorney general in the Land and Natural Resources Division.

The department’s preliminary inquiry said that Schmults and Dinkins both failed to inform the judiciary committee of the existence of handwritten notes on the EPA controversy. But the department found ″no reasonable grounds to believe that further investigation or prosecution ... is warranted″ against either ex-official.

Among the officials criticized in the Judiciary Committee’s recent report, but not investigated by the Justice Department, was Richard A. Hauser, deputy White House counsel. The congressional report said that Hauser certified to a House subcommittee in 1982 that he had reviewed all of the EPA’s documents being withheld. In fact, the report said, Hauser had not even received much of the material.

House subcommittees in 1982 and 1983 were investigating allegations that the EPA’s Superfund toxic waste cleanup program had been improperly manipulated for political purposes by the Reagan administration.

The House Judiciary Committee’s recent report said the Justice Department was generally aware at the time that the files sought by Congress contained evidence of political manipulation of Superfund cleanups.

For example, one withheld document that was ultimately turned over to Congress indicated that the financing of the cleanup of a waste site in California had been delayed because of the 1982 elections.

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