Olson, In re, 86-1
| Decision Date | 02 April 1987 |
| Docket Number | No. 86-1,86-1 |
| Parties | In re Theodore OLSON. Division . Division for the Purpose of Appointing Independent Counsels. Ethics in Government Act of 1978, as Amended |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Before MacKINNON, Presiding, MORGAN and PELL, Senior Circuit judges.
Pursuant to 28 U.S.C. Sec. 594(e), the Independent Counsel has applied for referral of certain matters related to the investigative jurisdiction granted previously in our Orders dated April 23, 1986, and May 29, 1986. Specifically, the Independent Counsel in her Application for Referral of Related Matters ("Independent Counsel Application") seeks investigative and prosecutorial jurisdiction over "certain allegations against two former Department of Justice ("Department") officials, Edward C. Schmults ("Schmults") and Carol E. Dinkins ("Dinkins"), in a report of the Judiciary Committee of the House of Representatives ("Committee") entitled Report on the Investigation of the Role of the Department of Justice in the Withholding of Environmental Protection Agency Documents in 1982-83 ("Committee Report")." Independent Counsel Application at 1-2. The Department of Justice has responded to the Independent Counsel's application for referral of related matters, urging that 28 U.S.C. Sec. 592(b)(1) precludes the Division from granting the request of Independent Counsel. ("Department of Justice Response"). The Independent Counsel has in turn replied to the objections of the Department of Justice. ("Independent Counsel Reply"). We agree generally with the Department of Justice that the applicable statute requires us to deny the Application because the Attorney General has twice denied such request.
The House of Representatives in the 97th Congress conducted two separate investigations 1 into the administration by the Environmental Protection Agency of the Hazardous Substance Response Fund ("Superfund"). In the course of those investigations the Committees requested and subpoenaed a number of documents. Acting on advice from the Department of Justice, the EPA promptly acceded to some of these requests, but the EPA initially opposed other requests, asserting claims of executive privilege and that the documents were "enforcement sensitive" or "deliberative." However, it was eventually agreed that the Committees would have access to the requested documents except "enforcement sensitive" documents, the release of which it was felt could hamper law enforcement efforts. It was also agreed that the Department would not shield documents containing evidence of criminal or unethical conduct by agency officials.
In the next Congress, the House Judiciary Committee decided to investigate the conduct, during the prior investigation, of certain individuals in the Justice Department. As a consequence, the Committee initiated an investigation and compiled a report in excess of 3,000 pages, entitled Report on the Investigation of the Role of the Department of Justice in the Withholding of Environmental Protection Agency Investigative Documents from Congress 1982-83.
Upon completion of this follow-up investigation, the House Judiciary Committee directed its Chairman to transmit the Committee Report to the Attorney General. In his December 12, 1985, letter transmitting the Report, the Chairman of the House Judiciary Committee requested the Attorney General to conduct an independent determination and to consider the Chairman's letter as "an official request of the Committee on the Judiciary that you apply for the appointment of an independent counsel under the provisions of 28 U.S.C. Sec. 591, et seq." The letter from the Committee also stated that among other possible issues raised by the report, it would appear appropriate that the Executive Branch examine whether, during the Superfund Investigation in the prior Congress, there had been any violations of 18 U.S.C. Secs. 1001, 1505, 1621-23, 371, "or any other provision of federal law."
After studying the Committee Report, the Attorney General determined that it contained sufficient information to warrant "preliminary investigations," within the meaning of 28 U.S.C. Sec. 592 as to:
(A) Whether the conduct of former Assistant Attorney General Theodore Olson in giving testimony at a hearing of the Subcommittee on Monopolies and Commercial Law of the House Judiciary Committee on March 10, 1983, and later revising that testimony, regarding the completeness of the Office of Legal Counsel's response to the Judiciary Committee's request for OLC documents, and regarding his knowledge of EPA's willingness to turn over certain disputed documents to Congress, violated 18 U.S.C. Sec. 1505, Sec. 1001, or any other provision of federal criminal law;
(B) Whether the conduct of former Deputy Attorney General Edward Schmults, resulting in the undisclosed withholding of documents from the House Judiciary Committee from March, 1983, through April, 1984, violated 18 U.S.C. Sec. 1505, Sec. 1001, Sec. 1512 or any other provision of federal criminal law;
(C)(1) Whether the conduct of former Assistant Attorney General Carol Dinkins, resulting in the undisclosed withholding of documents from the Judiciary Committee during its investigation, violated 18 U.S.C. Sec. 1505, Sec. 1001, Sec. 1512, or any other provision of federal criminal law; and (2) whether the conduct of Mrs. Dinkins in preparing and submitting a declaration in the case captioned United States v. United States House of Representatives, Civil No. 82-3583 (D.D.C.), violated 18 U.S.C. Sec. 1503, Sec. 1621, Sec. 1623, Sec. 401, Sec. 1001, Sec. 1512, or any other provision of federal criminal law.
Report of the Attorney General Pursuant to 28 U.S.C. Sec. 592(c)(1) Regarding Allegations Against Department of Justice Officials in United States House Judiciary Committee Report ("Report of Attorney General") at 3-5.
Following the foregoing determination, the Attorney General directed the Public Integrity Section of the Department to conduct the preliminary investigation into the allegations contained in the Committee Report. Thereafter, the Public Integrity Section, as well as John C. Keeney, Deputy Assistant Attorney General for the Criminal Division, and William F. Weld, United States Attorney for Massachusetts, designated by the Attorney General to be his Special Assistant in the matter, made recommendations to the Attorney General as to whether any allegations in the Committee Report warranted further investigation by an independent counsel.
After considering all these recommendations, the Attorney General on April 10, 1986, requested the Division to appoint an Independent Counsel to investigate the allegation against Olson set out in section A above, "and any other matter related to that allegation." Report of Attorney General at 11 (emphasis added). The Attorney General also stated in his report to the Division that he had determined, pursuant to Sec. 592(b)(1), that there were no reasonable grounds to believe that further investigation or prosecution was warranted with respect to the allegations against Schmults and Dinkins. Id. at 26 & 47-48.
Acting upon the Attorney General's report, the Division for the Purpose of Appointing Independent Counsels on April 23, 1986, filed an order appointing independent counsel and defining his jurisdiction. 2 In re: Theodore Olson, D.C.Cir., Division No. 86-1. In response to the request of the Attorney General, Independent Counsel was ordered
to investigate and pursue the question whether testimony of Mr. Theodore Olson and his revision of such testimony on March 10, 1983, violated either 18 U.S.C. Sec. 1505 3 or Sec. 1001, 4 or any other provision of federal law.
In addition to this authority the Division further
ORDERED, ... that the Independent Counsel shall have jurisdiction to investigate any other allegation of evidence or violation of any federal criminal law by Theodore Olson developed during investigations by the Independent Counsel referred to above, and connected with or arising out of that investigation and the Independent Counsel shall have jurisdiction to prosecute for any such violation.
The jurisdictional order also noted that the Independent Counsel would have "all the powers and authority provided by the Ethics in Government Act of 1978, as amended, and specifically by 28 U.S.C. Sec. 594." This section provides an independent counsel with very broad investigative and prosecutorial powers. The Independent Counsel then proceeded to conduct an investigation of Theodore Olson as authorized by her appointment.
By letter of November 14, 1986 ("Independent Counsel letter"), the Independent Counsel requested the Attorney General to refer to the Independent Counsel the allegations in the Committee Report against Schmults and Dinkins and the criminal investigation being conducted by the Department of Justice of former General Counsel to the Environmental Protection Agency, Robert M. Perry. This request was made pursuant to 28 U.S.C. Sec. 594(e) 5 on the claim that under the statute, the allegations were "related matters" to the investigation of Olson that she was then conducting.
After reciting the incidents of her investigation of Olson to date, the Independent Counsel concluded in her application to the Attorney General that:
no reasonable, fair, impartial and complete investigation can be conducted without examining the conduct of Mr. Schmults and Ms. Dinkins.
Independent Counsel letter at 3. The Independent Counsel stated that this conclusion was rooted in the following:
(1) standing in isolation, as framed by [the Attorney General's] report, Mr. Olson's testimony of March 10, 1983, probably does not constitute a prosecutable violation of any federal criminal law, based on my present understanding of the evidence;
(2) Mr. Olson's testimony cannot properly be viewed in such isolation,...
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