Mutually assured corruption; the Justice Department and Anne Burford's EPA.

MUTUALLY ASSURED CORRUPTION

During Ronald Reagan's first administration, few developments attracted as much attention as the scandal over the management of the environment. At the center of the controversy were the goings on at EPA in 1982-83, when allegations of sweetheart deals with industry, political manipulation of funds, and gutted regulatory procedures flew wildly. A strange but dramatic constitutional confrontation over a pile of documents and the doctrine of executive privilege brought the affair to its climax, and a rapid denouement followed. Or so it seemed.

It all ended with nearly surgical neatness. On March 9, 1983, the documents were turned over by the executive branch to the congressional committees that wanted them, and Anne Gorsuch Burford, administrator of EPA, resigned from office. In the popular mind, the two events were linked. Burford, like her fellow Coloradan, James Watt, had antagonized many with her undeviating adherence to the Reaganite program of easing the regulatory burden on industry and getting government out of the business of protecting the environment. Her tough, unsympathetic character did not win her many friends, either. In the course of the crisis, she became the subject of the first contempt citation ever issued by Congress to a presidential appointee at that level of government. It was easy to imagine her the culprit, and the bad odor of a Watergate-like cover-up surrounding the affair was widely ascribed to her. Given the stream of bad press she brought cascading down upon the administration, few inside the government or out were sorry to see her go. And, with the subsequent resurrection of William Ruckelshaus, first administrator of EPA and shining martyr of Nixon's Saturday Night Massacre, the White House turned a debacle into a modest public relations victory.

The story, however, is far from over. The House Judiciary Committee has just released a 1,300-page report that promises to upset the common understanding of what actually happened during the EPA scandal. It details the fascinating but hitherto unknown machinations of the Department of Justice in the executive privilege confrontation. The evidence presented implicates many top Reagan law enforcement officials and White House staff members in a conspiracy to deceive Congress and obstruct justice. Complementing this summa is Anne Burford's recently released memoir of her years in the administration, Are You Tough Enough?*, which intimates and conjectures about many of the topics of the House Judiciary report. The appearance of these two publications has renewed press interest in the EPA scandal; the Judiciary Committee, meanwhile, has recommended the appointment of a special prosecutor.

* Are You Tough Enough? An Insider's View of Washington Politics. Anne Burford with John Greenya. McGraw-Hill, $16.95.

To be sure, the wrongdoing that's been uncovered deserves plenty of attention. But because of the complexity of the scandal, because there are too many villains pursuing their own plots, and because the final picture largely contradicts our notions of how government is corrupted, it may end up earning less than its fill of coverage. For these reasons, it's worth reviewing the affair and presenting, however inconclusive it must now be, a guide for the perplexed.

Fall of the Dragon Lady 

First, some history. In the fall of 1982, several House committees began investigating the Superfund program for toxic waste cleanups in response to charges that EPA was not implementing the program in accordance with the law. In October the investigations came to a halt after EPA refused to turn over certain documents that it claimed were "enforcement-sensitive'--that is, their release would have upset legal cases EPA was pressing against polluters. Congressional appeals for the documents were rejected, and acting on the advice of Justice Department attorneys, the president asserted the right of executive privilege over the documents on November 30.

Few things guarantee the suspicion of Congress as much as a claim of executive privilege. With Watergate looming in the background as the paradigmatic battle over the ill-defined doctrine, many legislators and journalists immediately sensed a cover-up. Since Congress routinely examines far more sensitive materials than anti-pollution enforcement documents, lines were quickly drawn, and the hostilities began. On December 16, in the dying days of the 97th Congress, the House voted 259-105 to hold Burford in contempt of Congress. (At the time her last name was Gorsuch. She married Robert Burford, director of the Bureau of Land Management, several months later.)

Burford, however, was as true a believer as Ronald Reagan could find--a fact that determined the great irony of her fall--and she continued to withhold the documents despite the threat of prosecution. The clamor grew. Congressional ire was further aroused by irregularities in the accounting of the documents that were being held; the total seemed to vary each time the executive branch communicated with the legislative. What's more, apparently everyone but Congress had access to the documents, including EPA office help and, strikingly, some companies that were the subjects of enforcement proceedings. It was also unclear who at EPA actually knew what was in the documents or who had made the decision to withhold them.

Drama attracts spectators, and the contempt citation and administration stonewalling brought the press to EPA's doorstep en masse. The focus of attention was Burford, whose thorniness had in the past earned her such sobriquets as the "Ice Queen' and the "Dragon Lady.' At the height of the crisis, reporters practically invaded Burford's home in what one commentator aptly called a "feeding frenzy' of publicity. The requisite Reagan egg didn't help matters either: the president announced, "I can no longer insist on executive privilege if there is a suspicion in the minds of the American people that it is being used to cover up wrongdoing.' The next day brought the inevitable correction, and the documents were not released.

In the next five weeks, the storm intensified. In mid-February Reagan fired Rita Lavelle, then assistant administrator for Solid Waste and Emergency Response and one of the key figures in Superfund implementation. Materials indicating criminal wrongdoing on her part, including committing perjury before Congress, were sent to the Justice Department, which was beginning its own investigation of EPA. A few weeks later, Burford resigned, and the documents were released. At least rhetorically, President Reagan defendant her to the end and beyond. During a press conference two days after her resignation, he said the people impugning the former administrator were interested in partisan attacks and not real wrongdoing or environmental concerns. He added, "And, frankly, I wonder how they manage to look at themselves in the mirror in the morning.'

Punch and Judy 

To many of those closest to the fray, it was evident that the popular understanding of the controversy--that Burford and her minions were the villains in this morality play--was incomplete. There were hints along the way that indicated as much. Significantly, Burford had made several remarks in the last few months of the scandal indicating that she opposed the withholding of the documents.

The behavior of the Justice Department throughout the affair raised a number of questions. The counsel given to Burford and EPA aroused much curiosity, as did the department's unwillingness to fulfill its constitutional duty to prosecute the contempt citation. Finally, and perhaps most important of all, the released documents did indicate wrongdoing at EPA-- exactly what the Justice Department, White House, and EPA had strenuously denied all along. Many of the documents were simply trivial; none pertained to criminal enforcement of the Superfund program. Several of them, however, gave evidence that Superfund money was being granted or held up for political purposes. If a Republican incumbent was running for reelection, a cleanup might begin with remarkable speed. If a Democrat stood to benefit from the allocation of funds, the process suddenly became arthritic. Since the Justice Department had taken an active part in the frustrating of Congress and should have known about the contents of the papers, an account of its role in the affair was clearly needed. Requests for an investigation from several congressmen to the House Judiciary Committee began the process almost three years ago.

The picture that now emerges of what actually occurred during the executive privilege confrontation illustrates that, far from having an ancillary role in the affair, the Justice Department was the central force behind the withholding of the documents. As one congressional investigator said, "Justice was clearly the puppeteer pulling the strings.' What follows is based on the executive summary of the House Judiciary report and on interpretations of the full report by congressional sources familiar with it. The final history of the relationship between Anne Burford's EPA and the Justice Department awaits its author, but the essential outline is complete: a cabal of lawyers at the department played a deep game with both EPA and Congress. White House staff members were also involved, though how much they knew of what was going on is unclear. The game took the Justice officials well beyond the realm of legal practice and involved them in dirty tricks, possible perjury, and the obstruction of justice. Those implicated in the affair include former Attorney General William French Smith, several of his chief deputies, and Richard Hauser, deputy White House counsel.

I see nothing!

In mid-October 1982, several high-level Justice Department attorneys met and decided to withhold some of the EPA documents requested by congressional committees. Their goal was to assert executive privilege, a move sure to provoke a confrontation with Congress. They also did so without the the approval of Anne Burford. When the apparent leader of the group, Theodore Olson, who until 1984 was assistant attorney general in the Office of Legal Counsel, wrote to the president on October 25, 1982 advising that the documents be withheld, his final remark was, "The Administrator [of EPA] concurs in this recommendation.' When told of the move to claim executive privilege, Burford protested against it, and there is some question as to whether she was even adequately consulted before the memorandum was sent. EPA was prepared to release the documents; from the beginning there was no need for a confrontation.

The misinforming of the president initiated the series of events that led to the crisis of that winter, but other than that, it was of little significance next to the tactical blunder that accompanied it. The Justice Department failed to find out what was actually in the documents.

Reponsibility for determining whether the documents were "enforcement sensitive' lay with the department's Land and Natural Resources Division. Then the domain of Assistant Attorney General Carol Dinkins, the division handles the government's cases against polluters. But neither Dinkins, who was one of the lawyers at the October meeting when the decision to withhold the documents was made, nor her primary assistant had looked at the documents. In fact, Dinkins did not review the documents until December; whatever review took place in the office before Olson wrote to the president was not thorough. How much Olson himself knew about the contents of the documents when he sent his memorandum is unclear. But he was certainly wrong when he wrote:

"It is possible, of course, that documents similar to the 35 in question here might themselves contain some evidence of unlawful conduct by a government agency or government officials. In such a situation, the overriding importance of furnishing evidence of unlawful behavior would weigh heavily against any assertion of executive privilege and we would be most reluctant to recommend that you assert executive privilege under such circumstances. However, no such evidence exists in these 35 documents . . ..'

Ironically, Olson's misstatement ignored not just what was in the documents but also some evidence that the Justice Department had regarding the political manipulation of Superfund money. More material indicating the guilt of EPA officials in these matters was contained in the documents Olson wanted to withhold. Had the Justice Department been more vigilant about investigating the information it had, the question of withholding the documents would have been a very different one.

Just playing

Even before the president agreed to go ahead with the document embargo, the gamesmanship of the attorneys was hardly that of gentlemanly barristers. In an apparent effort to weaken the position of some of the congressmen who had requested the documents, the Justice attorneys dispatched a department staff member to the Federal Election Commision to collect campaign contribution information on Rep. John Dingell, chairman of the Subcommittee on Oversight and Investigations of the House Energy and Commerce Committee, and on Rep. Mike Synar, a member of the same subcommittee. Lists of the companies responsible for the hazardous waste at the sites under investigation were then matched against the congressmen's contributor lists. The attorneys intended to use the information to spread rumors, possibly through the press, that the congressmen were pressing the investigation so they could pass sensitive information on to benefit their constituents and contributors.

No correlation was found, so the lawyers' dirty tricks were thwarted. The withheld documents, though, caused more enduring problems. The first organized review of the documents finally began on December 6, 1982. By this time, several officials had asserted that the documents contained no evidence of wrongdoing at EPA. If they had not been noticed earlier, the references to the political use of Superfund money should have been seen then. Dinkins, who personally reviewed the documents the next week, was not deterred. Rather than surrender the papers, seven officials from EPA, Justice, and the White House certified formally to the Dingell subcommittee that the documents contained no criminal evidence. Whatever the knowledge of the EPA and Justice officials, Richard Hauser signed the certification apparently without ever reviewing the documents. Not until February, when the controversy boiled over in the press, were any of the documents sent to the Criminal Division of the Department of Justice for investigation.

Nor does the story end there. In the hope of preventing the disclosure of the documents' contents, some of the Justice officials in late January contemplated opening an investigation of Rita Lavelle, who the documents and department information indicated was involved in manipulating Superfund. By investigating then, the department would have the right to prevent John Dingell and his subcommittee from interviewing many EPA officials since it could be argued that the interviews on Capitol Hill might upset the investigation. Thus officials who, under oath, might inform the subcommittee of the contents of the documents would be effectively barred from doing so. Although this tack was not taken, it demonstrates how minds were working in the Reagan Justice Department.

The discussions about investigating Rita Lavelle took place in late January 1983. Shortly afterward, the momentum of events effectively took the executive privilege confrontation out of the hands of the lawyers. Stories about a wide variety of corrupt activities at EPA began appearing in the papers. In mid-February, Rita Lavelle was fired, and the scrutiny of the press became ever more intense. The White House searched for a way to extricate itself. The most convenient route required forcing Burford from office and purging the top level of the EPA bureaucracy. Both goals were achieved quickly; within a month, Burford was gone, along with several members of her staff. Many more were removed in the succeeding months.

Burford's resignation hardly closed the case, whatever the appearance might have been. The Justice Department blocked the House Judiciary Committee's efforts to investigate it for more than a year. The campaign to impede Congress again began the day after Burford resigned. According to the House Judiciary Committee report, "Theodore Olson gave false and misleading testimony at a Judiciary Subcommittee hearing on March 10, 1983. Olson apparently received instruction to be evasive on at least one key element of his testimony from the Attorney General and the Deputy Attorney General; the full extent of Olson's instructions from these officials is far from clear.'

Showing proper cause

Why do it? What possible reason could the lawyers have had for needlessly provoking a constitutional confrontation? One can imagine how, having made their initial missteps, they found themselves in a bind and thrashed around until they had aggravated matters. But no intrinsic reason presents itself for why they would go to all this trouble.

Several schools of thought have arisen on this subject. Perhaps the one conspiracy theorists will find most appealing is the theory of the grasping executive. This holds that the executive branch was out to increase its power, particularly vis-a-vis Congress. A successful executive privilege battle over the documents would enable the White House to embargo all sorts of materials requested by Congress, thus greatly strengthening its hand in the historic battle between the branches of government. Remarks such as those made by White House Counsel Fred Fielding to The Wall Street Journal in March 1983 that "the line had to be drawn' to keep Congress from demanding materials that were too sensitive lend support to the theory.

Another conjecture is that the Justice Department lawyers wanted to cover up their own involvement in the political manipulation of Superfund money that the documents demonstrated. This theory was propounded by several members of Dingell's subcommittee to Jonathan Lash, who recorded it in a note in his book on the Reagan environmental policy, A Season of Spoils.

Anne Burford puts forth her personal conspiracy theory in Are You Tough Enough? She writes, "There were some people in the administration who wanted to get rid of whichever conservatives they could.' Her discussion of the executive privilege confrontation, however, isn't entirely paranoiac; she sees the plot against conservatives as one thread among several.

None of these truly fits the bill. The theory of the grasping executive falls, despite the positive indications, because the necessary hand-rubbing, fiendish executive isn't there. It wasn't Ronald Reagan's game. As for the idea of Justice Department complicity, unless a trove of new evidence regarding political abuse of Superfund awaits unearthing, there is not much reason to choose this theory. Not enough proof of Justice Department involvement in the malfeasance of Burford and Lavelle exists in an area filled with an abundance of damning evidence. Anne Burford's notion that White House pragmatists wanted to get rid of her and other troublesome conservatives may well be true. But it is inconceivable that James Baker and Michael Deaver could have planned a constitutional confrontation to oust Anne Burford.

The theory that gives the best description of what happened lacks most of the nefariousness of the other scenarios. Strikingly simple, it falls squarely in the category of the all too human. In short, the lawyers wanted to gain a plum they had long coveted and by doing so settle a score.

Envy, wrath, sloth . . .

As the saying goes, lawyers like to argue. Evidently, some of them also don't like to lose, which is precisely what happened to Theodore Olson, Carol Dinkins, and other department and White House lawyers in 1981. The occasion was the executive privilege confrontation between James Watt and Congress, led this time, too, by Dingell and his subcommittee. Watt discusses his experience in a short reminiscence of sorts that Burford has included in her book. When threatened with his own contempt citation, Watt found out he was little more than the beast of burden for some lawyers interested in jousting with Congress essentially for the sake of jousting. At that point, Watt says, he threatened Fred Fielding that he would turn over to Congress the documents in question (which concerned Canadian takeover efforts of American energy companies) unless a compromise was negotiated. As Watt tells it, "And within hours they surrendered the papers to Dingell, because they knew I would be true to my promise.' No contempt citation was issued, and Congress saw the documents it wanted.

Among the central characters in that episode were Theodore Olson, Carol Dinkins, and Larry Simms, Olson's deputy and a key figure in the EPA crisis. And as considerable evidence in the House Judiciary report shows, teaching Congress a lesson was very much on their minds when the recommendation was made to assert executive privilege. Of course, it would be foolish to claim the desire for revenge consumed these lawyers like characters from some Jacobean tragedy. In fact, some talk of regaining ground lost in the Watt episode did occur. But at the heart of the conflict was the desire to retaliate for a past defeat. As Michael Barrett, chief counsel for the Dingell committee, said after reviewing the Judiciary Committee's report, "If you look at it, it's the same players as in the Watt thing. There was definitely a desire to get back.'

That desire wasn't motivated by plain one-upmanship. There was something to be gained by winning an executive privilege confrontation and while the victory would be very pleasing to the White House, the lawyers themselves stood to gain something significant. The lawyers had been denied it once and now they wanted to achieve what they originally sought. That something has to do with reputation.

Few people make as good use of Washington's proverbial revolving door as do the lawyers who shuttle to and from prestigious firms and federal agencies with the changing of administrations. A stint in the right government office can help make a career. For a high-level government lawyer, having one's name on a landmark case, especially one heard by the Supreme Court, gives added luster to a reputation. To Olson, Dinkins, and Simms, a successful executive privilege case would be a coup. Several aspects of the EPA executive privilege case point to the conclusion that the quest to withhold the documents had to start in some such self-serving desire. The willingness to deceive the president demonstrates that Reagan was not the intended beneficiary of the effort, and no evidence rivals the incredible failure to review the documents for revealing ulterior--and blinding--motives.

If this seems like a far-fetched guess at what went on in the minds of the Justice Department attorneys, Anne Burford's account of her early discussions on the topic of withholding the documents bears repeating. Burford contends that the Justice lawyers "wanted to make a name for themselves in Washington.' When the lawyers came to EPA to tell her about the proposal to provoke a confrontation, she asked them how good a case they had. ""Anne,' they said immediately, "this is a superb case. This is going all the way to the Supreme Court.'' Admittedly, the noise of grinding axes pervades Burford's book, but this quotation penetrates the din.

Although the constitutional confrontation arose from the lawyers' scheming, blame for the scandal surely is not their's alone. They did, after all, have superiors who ought to have prevented them from embarking on what stands as one of the more ridiculous chapters of Ronald Reagan's presidency. That verdict should not be controversial. Even conservative administration supporters, who lost one of their own in the affair, can't defend cocksure bureaucrats who pursue their own interests to the detriment of the administration. But the clinching irony of the scandal is that the embarrassment issues from the famous Reagan style itself. The president had it coming.

Much of Reagan's success over the last five years has been credited to his ability to delegate authority. While no one could claim that Reagan's ignorance of what his subordinates were hatching at Justice was his own fault, the high esteem in which delegating authority is held made the lawyers' plot possible. Not only does it seem that no one ever questioned what Olson and his associates were up to, but the critical steps were taken when, in short, no one was minding the shop. The decision to pursue the executive privilege claim came at a time when, as the House Judiciary Committee investigators neatly wrote, "Attorney General William French Smith was out of the country, White House Counsel Fred Fielding was out of the office, and Deputy Attorney General Edward Schmults was spending virtually no time on the document controversy.'

Compounding the irony is the fact that the debacle occurred during the Justice Department stewardship of William French Smith, probably the president's best friend to serve in the Cabinet. Smith shares his former boss's well-known aversion to work and fondness for socializing--so much so that some in Washington call him the "cocktail party attorney general.' That his fief provided the scene for the definitive transgression of the Reaganite value of team playing should not escape attention.