Just what did Theodore B. Olson know about the Arkansas
Project, and when did he know it? Those simple questions have complicated the
confirmation of the Bush administration’s choice for Solicitor General, whose
shifting, carefully parsed answers have raised real doubt about his candor.
Three months ago, President George W. Bush selected the
right-wing legal luminary who had represented him in Bush v. Gore to serve as Solicitor General, a top Justice
Department position once held by Mr. Olson’s friend and former law partner,
Kenneth Starr. Sometimes called “the 10th justice,” the Solicitor General’s
chief responsibility is to represent the executive branch before the Supreme
Court; the occupant of that office is often considered a potential future
nominee for a seat on the highest bench.
Although Mr. Olson is well regarded as an attorney, his
nomination has been stalled by concerns about his ultra-partisan activities.
Specifically, he has been asked by the senior Democrat on the Senate Judiciary
Committee, Senator Patrick Leahy of Vermont, about his role in the covert, $2.4
million anti-Clinton crusade mounted by The
American Spectator magazine between
1993 and 1997, with tax-exempt funds provided by conservative billionaire
Richard Mellon Scaife’s foundations.
Unconvinced by his responses, Mr. Leahy and other members of
the committee have at least twice postponed votes to confirm Mr. Olson. They
are disturbed by recent reports in The
Washington Post which have contradicted his denials that he played any part
in the “origin and management” of the Arkansas Project.
Having agreed in early May that this topic deserved further
scrutiny, committee chairman Orrin Hatch, the Utah Republican, abruptly
reversed himself and declared the matter closed on May 14. But the committee’s
Democrats are resisting Mr. Hatch’s attempt to push the nomination through.
(Incidentally, readers who rely upon The
New York Times for national news are probably unaware of these events-the Times Washington bureau has for some
reason virtually ignored its main rival’s news breaks-and may want to consult
Washpost.com or Salon.com for thorough coverage.)
The evidence of Mr.
Olson’s involvement in the Arkansas Project is substantial and still expanding.
Financial records of the American
Spectator Educational Foundation show several payments in 1994 to his law
firm, Gibson Dunn & Crutcher, listed explicitly as Arkansas Project
Former Spectator reporter
David Brock has told Judiciary Committee staffers and Post reporters that on several occasions in 1995, Mr. Olson came to
dinner meetings at the suburban Virginia home of Spectator editor R. Emmett Tyrrell Jr., where Arkansas Project
editorial ideas were discussed. Also in attendance at those dinners was David
Henderson, a Spectator foundation
director who served as an overseer of the project.
Mr. Brock’s assertion is
corroborated by a letter in which The
Spectator ‘s publisher named persons who regularly attended such meetings at
Mr. Tyrrell’s house. The first name on that list-which includes Mr. Brock and
Mr. Henderson-is “Ted Olson.”
According to Mr. Olson, however, he knew nothing about the
project until the summer of 1997, when alleged irregularities in its finances
were brought to his attention as counsel to The
American Spectator and a member of
its board. Until then, he insists, he was wholly unaware of the Arkansas
Project or its lavish Scaife funding. Having originally testified that he
didn’t learn about the project until the summer of 1998, he changed his story
in written responses to additional queries from Senator Leahy.
Similarly, Mr. Olson has revised his original answer about
how he came to represent David Hale, the Little Rock swindler who eventually
became Mr. Starr’s chief Whitewater witness against the Clintons. He first
testified that Mr. Hale was brought to him by two
attorneys whose names he didn’t recall. Then he said the introduction
had been made by some other gentleman, whose name he likewise couldn’t
But Mr. Henderson, a longtime Scaife associate and no
stranger to Mr. Olson, has now admitted that it was he who arranged for the
conservative attorney to represent Mr. Hale. And during the period when Mr.
Olson represented both him and The American Spectator , Mr. Hale was the key source for the Arkansas Project. It
seems strange that Mr. Olson would have forgotten all those intriguing
Now the Senate Judiciary Committee must determine whether
Mr. Olson’s testimony is credible or contemptuous, and whether additional
investigation is needed. Most likely, Mr. Hatch will succeed in stifling any
further inquiry by the Democrats.
But just imagine the uproar if the press had discovered that
a liberal activist lawyer, nominated by a Democratic President for an important
Justice Department post, had once joined a secret, four-year,
multimillion-dollar campaign to smear a Republican President. Then imagine the
fury which would erupt if that nominee had attempted to conceal and obfuscate
such dubious conduct in sworn testimony during his confirmation hearings.
Under those circumstances, the loudest voice demanding an
unsparing and unobstructed probe would no doubt be the honorable Senator Hatch.