The Attorney General's Lawyer: Inside the Meese Justice Department

By Douglas W. Kmiec | Go to book overview

of the so-called Superfund Act pertaining to the cleanup of hazardous waste sites.

Failing to get every document they wanted, the Levitas subcommittee, and ultimately the full House in late December 1982 voted Mrs. Gorsuch in contempt of Congress. Tip O'Neill, the Speaker of the House, referred the contempt citation to the local U.S. Attorney for criminal prosecution. Immediately thereafter, the Department of Justice filed a civil suit styled--somewhat like kissing (or in this case hitting) your sister-- " United States v. United States House of Representatives." The suit sought to obtain a ruling that an executive official need not comply with a subpoena for documents that are the subject of a valid claim of executive privilege. Seeing that it was about to be thrust into the middle of a brawl, the trial court ran for cover, urging the legislative and executive branches to settle the matter without judicial involvement. They did, with Congress receiving edited copies of enforcement documents and oral briefings.

Unfortunately for Theodore Olson this wasn't the end of the episode. In a snit over his highly principled defense of the President's control of the executive branch and his law enforcement duties, the House Judiciary Committee demanded that Olson testify as to the nature of his legal advice. Olson did, but not to the Committee's satisfaction, and in a several-thousand-page report, the Democratic members of the Committee asserted that Olson misled them and demanded the appointment of an independent counsel to investigate. Independent counsels have already been introduced, so little is needed to explain how the grand inquisition that followed ran up close to two million dollars in legal fees for Olson and would occupy several years of his life. The result: no basis to prosecute. Case dropped.

You might say Olson won the battle. He certainly paid for it. But did Congress or the President win the war? After Olson left the Department of Justice in 1984, you couldn't say there was less desire to protect the President's interests in overseeing the executive branch, but there was a greater realization that constitutional fights could get very, very personal. If disclosure of internal advice chills executive decision making, more than a few of us thought of the effect taking out a second or third mortgage to finance an independent counsel defense would have on our families.


NOTES
1.
U.S. Const. art. II, § 1.
2.
Exec. Order No. 12, 291, 3 C.F.R. 127 ( 1982).
3.
50 Fed. Reg. 1036 ( 1985).
4.
31 U.S.C. § 8502(c) (Supp. 1970).

-65-

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The Attorney General's Lawyer: Inside the Meese Justice Department
Table of contents

Table of contents

  • Title Page iii
  • Contents ix
  • Foreword xi
  • Introduction 1
  • Note 3
  • Part I - Beginnings 5
  • 1 - Surmounting the Independent Counsel 7
  • Notes 16
  • 2 - In Search of Original Intent 17
  • 3 - The Unitary Executive 47
  • Notes 65
  • Part II - The Essence 69
  • 4 - Family: Abortion, Aids, Pornography, and School Choice 71
  • Notes 106
  • 5 - Work: Securing Economic Liberty 111
  • Notes 129
  • 6 - Neighborhood: The Revival of Federalism 132
  • 7 - Peace: The Color-Blind Society 152
  • Notes 175
  • 8 - Freedom: Iran-Contra and the Criminalization of the Separation of Powers 179
  • Notes 188
  • Part III - The Finale 191
  • 9 - Ethics, Give Us More Ethics 193
  • Notes 214
  • Epilogue 219
  • Notes 220
  • Selected Bibliography 221
  • Index 225
  • About the Author 235
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