Saturday, September 22, 2007

Albion's Seed, Part II: The Cavaliers 1642-1675

Sir William Berkeley, Governor of Virginia

-- by Sara

Part I

The wave of Puritan migration from England to America slowed dramatically after 1641. Through the English Civil War and Cromwell's Protectorate, the Puritans found themselves politically and economically ascendant in England -- which greatly diminished their interest in leaving it. But the Puritan victory came at the expense of another English subculture, whose flight from Cromwell propelled the second wave of English migration to America.

These were the Cavaliers -- loyal Royalists, many of them nobles and courtiers, who sought refuge from the chaos in Virginia. David Hackett Fischer notes that Southern historians have long debated the actual extent and effects of the Cavaliers' influence on the region's culture; but 210 pages of Albion's Seed are given over to studying their specific folkways and cultural values as they existed on the estates of southern England, and as they later expressed themselves in the Chesapeake region. The detailed analysis is convincing: like the Puritans, the Cavaliers brought the culture they knew, and transplanted it firmly and deeply in the soil of tidewater Virginia. In the process, they added a second enduring English voice to America's conversation about rights, freedom, and power.

Aristocrats and Peasants
The Cavalier wave actually brought two kinds of people to Virginia. About the quarter of the immigrants between the peak years of 1641 and 1675 were either "distressed nobility," or (later) the younger sons of England's best families, looking to re-create their older brothers' grand English farming estates in their Virginia plantations. Frequent visits, business interests, and intermarriage across the Atlantic kept their ties to the old country close: culturally, the Old Dominion still looks back to England with more fondness than most of the rest of America does.

Sir William Berkeley, Virginia's governor throughout this period, granted these fortunate sons high offices, titles, and vast land grants upon their arrival -- thus creating an instant oligarchy of elite landholding families that kept an iron grip on the colony's developing economic and social orders. Where John Winthrop worked to prevent class extremes on either end in Massachusetts, Berkeley deliberately set out to recruit a new Royalist aristocracy, and put control of the Chesapeake entirely in its hands. These families built their self-sufficient plantations all throughout the Tidewater, duplicating the rural model of their old southern English country estates in almost every detail.

Of course, there's no point in being an aristocrat if you don't have serfs to boss around. After the local Indian tribes were offered the job -- only to vigorously decline it -- Virginia's would-be elite sent home for indentured servants. By 1675, these servants -- almost entirely uneducated, unmarried, unskilled young men between 15 and 35 -- comprised the other three-quarters of the colony's white residents. At the same time, the number of African slaves began to burgeon as well. Between 1642 and 1675, the population of Virginia Colony grew from about 8,000 to an estimated 50,000 souls.

Most of the white servants worked as farmers on the plantations. Illiterate, unpropertied, unlikely to marry, and locked into the most rigid social hierarchy in the Colonies, they were in no position to determine the direction of Virginia's culture, despite their far greater numbers. For that reason, Fischer's story only touches on them. Their lives, like so much of the history of the Chesapeake, were dominated by the actions of their masters.

Like agricultural societies around the world (and in strong contrast to the mercantilist Puritans), the Cavalier culture that emerged during these early generations was tradition-bound, static, patriarchal and hierarchical, suspicious of book-learning, and more than a bit authoritarian -- attributes which were buttressed by the teachings of Virginia's state-supported Anglican churches. As a direct result, Virginia very soon distinguished itself with the widest inequities in wealth, social mobility, education, domestic conditions, and political rights in colonial America.

While the Puritans held up the Calvinist belief that power, freedom, rights, and authority all legitimately rested with the community, early Virginians brought with them the reigning view of the British upper classes: that is, that the legitimate exercise of power, freedom, rights, and authority properly belonged in the hands of free white male landowners. They believed that the country would be best served if these autocrats were given their liberty to create wealth, exercise power, and lead the lesser folk forward toward a future of their choosing.

This second view of "liberty" is still a very recognizable part of our national conversation to this day, so it's useful to have Fischer's account of where it began, and how it played out in the earliest years of English settlement in America.

Gilded Cages
In Virginia, we find the American roots of the idea that only a free white man of property can be a legal person in his own right. The identities of everyone else in his household -- wives, lower-ranked siblings, children, servants, and slaves, who often numbered into the hundreds on Virginia's estates -- were merged into him as extensions of his identity, and legally existed only in relationship to him. The patriarch was invested with a serious moral obligation to provide for and protect his many charges; but in return, he held absolute decision-making power over every detail of their lives -- including the explicit right and duty to exploit them all for his own pleasure and profit.

And the Cavaliers did revel in their pleasures -- and their profits. Like their families back home in England, they loved beautiful clothes in the latest London fashion, grand houses, fast horses, elaborate manners, and sumptuous feasts and balls (their diet was the freshest and most varied in the Colonies, and they preferred their food roasted or fried -- a cooking legacy that came straight from the kitchens of southern England to the tables of southern America). They also loved gambling, especially on blood sports: shooting games, coursing small game, cockfights, and every kind of hunting.

Beyond that, many married men openly indulged in another kind of sport -- the seduction of women, which many of them energetically pursued to well into old age. Fischer suggests that those old Virginia gentlemen (a few of whom left diaries documenting their liaisons with several women a week for decades on end) would be regarded today as dangerous sexual predators.

Cavalier marriages, like those in upper-class England, were often arranged, and usually had more to do with social or economic advantage -- or the cold calculus of "good breeding" -- than love. The result, according to observers of the time, was an unusual number of bitterly hostile marriages, some of which were legendary in their mutual cruelty. Unlike their Puritan sisters, women in Virginia could legally be beaten by their husbands, and had no property and no rights apart from marriage. Undereducated and openly referred to as "breeders," they were known far and wide for their explosive domestic fury, which was usually aimed at children and servants. (Apparently, William Faulkner merely recorded recurring scenes from a very old drama.) In too many cases, this rage was fueled by their husbands' endless dalliances with mistresses, neighbors, servants, and slaves.

Like the slaves, the children, and the livestock, a woman was simply another piece of chattel to be counted among a man's holdings, and used as he saw fit. Small wonder, then, that by the 1730s, even before Virginia's male nobility began discussing its oppressive relationship with the Crown, its formidable women stepped up to petition for their full and equal rights as Englishwomen. The time came, very early in the colony's history, that they simply had enough.

Matters of Honor
Wherever you find rigid hierarchies and powerful men asserting their liberties, you find a preoccupation with personal honor. The Cavalier insistence on honor expressed itself in some unique ways, some of which are still visible in parts of American culture.

While women, children, servants, and slaves got the worst end of Cavalier notions of hierarchy, Virginians accorded a great deal of respect to the seniority conferred by age. Fischer notes that even young noblemen of manners were taught to speak with deference to older men of lower rank. People figured that if a man had lived a long time, he'd probably accumulated wisdom worth listening to. And that seniority made him a patriarch in his own right, regardless of the size of his holdings.

Cavalier religion reinforced cultural ideals of honor, too. Where Puritanism was intensely personal and private, Anglican Virginia was led by priests recruited from England's upper crust; and their devotionals were High Church affairs full of formal liturgy, public piety, fine music, and learned (and mercifully brief: you don't waste the time of powerful men) sermons. As with much else in Cavalier culture, church participation was all about holding up the family honor by putting on a good public show.

The Cavalier work ethic honored the indolent -- or, at least, those who could manage to look like they were indolent. Gentlemen, by definition, were only allowed to supervise other people's work. It violated the code for them to be seen doing anything for themselves, so Cavalier men hid all signs of labor with the same obsessive sense of shame that the Puritans brought to hiding their sexuality. Running a plantation really was hard work. But that work had to be done out of sight and in secret, lest anyone be moved question your rank. The Cavaliers' unofficial work motto was "Never let 'em see you sweat."

One of Fischer's recurring themes is that how you define "freedom" and "authority" -- and whom you allow to exercise both -- determines what you consider a crime. In the Puritan colonies, crimes against God were regarded as crimes against the integrity of the community (which, as we've seen, is where all legitimate authority resided). Thus, Massachusetts courts obsessed over private moral lapses like sexual indiscretions, drinking, swearing, and so on. However, in Virginia, where Cavalier society saw all legitimate authority as resting with the landholder, the crimes that filled the courts were predominantly crimes against property: theft, trespassing, poaching, and any other act that transgressed against a lord's absolute right to control over his own holdings.

Because of the Cavalier's extremely well-developed sense of honor, the worst crime of all in early Virginia was failing to defer to your betters. Surviving and succeeding in the Old Dominion meant knowing exactly where you stood in the pecking order -- and, thus, who owed you deference, and whom you were required to defer to in turn. Lower-ranked people were expected to pay obsessively careful attention to the feelings and opinions of those above them; but the upper ranks had no obligation to spend their time or pity listening to those less fortunate (though the willingness to grant "condescension" -- yes, they called it that -- toward the lower orders was a mark of good breeding). Failure to defer to your betters could get you whipped; among gentlemen, it was a leading cause of duels (another popular Cavalier blood sport).

Deference reinforced a stiflingly fixed class system. It ensured that in Virginia, wherever you were born, that's where you were going to stay.

Death in the Tidewater
It probably won't come as a surprise to anyone who's read Jared Diamond that the geography of America's eastern coast played a critical role in the success of European colonies there. The Puritans contended with scant, poor farmland and bitter winters; but Virginia's English settlers had far and away the highest rates of illness and death in colonial North America. The Chesapeake -- beautiful, warm, and fertile as it was -- was also essentially a subtropical swamp. The occupants of its lovely waterfront plantation homes spent their lives continually ill from malaria, typhus, amoebic dysentery, parasites, and assorted fevers-of-the-month. Every year, in late summer and early fall, "the dying season" took a heavy toll (and is quite likely why a dismal succession of early Virginia colonies failed entirely).

Visitors from England often wrote home about the general sickliness, low energy, bad tempers, and poor color of the Virginians; but modern geographers are now realizing that the stereotypically slow-moving pace of Southern culture may have far more to do with the characteristics of the land than with those of the people. It was just plain hot and humid. But, beyond that, from birth to death, they were all fighting something -- and usually, several particularly lingering somethings at once.

The horrific death rates made the Virginians (in contrast to the sentimental Puritans, who made a daily ritual out of contemplating death) extremely stoic in their acceptance of loss. They buried the body, made a cursory nod to the vagaries of fate, and went on about their business without much further fuss. Life is for the living. Let's carry on.

Of the four groups Fischer discusses, the Cavaliers were the only ones who didn't take off in large numbers for the western frontier during the 18th and 19th centuries. The Southern aristocracy eventually colonized the coastal lowland crescent that skirts the southern states from the Chesapeake and the Carolinas down through Georgia and Alabama, then along the Gulf Coast ending at New Orleans. They didn't venture into Texas; they left that, along with the southern interior highlands, to the Borderers, who proved much better suited to it. Bound to England, to the land, to family, to tradition, to farming, and to slavery, they had very little incentive to pull up stakes and try their hand elsewhere. In retrospect, this may have been a good thing for the nation as a whole.

The Cavalier Legacy: Hegemonic Liberty
Fischer quotes Dr. Samuel Johnson, pondering the Cavalier view of freedom. "How is it," Dr. Johnson asked, "that we hear the loudest yelps for liberty among the drivers of negroes?" And, frankly, we're still wondering: How did the descendants of these Royalist plantation owners, who among all the English settlers held on most stubbornly to their noble British roots, end up supplying so many of the revolutionaries that ultimately led America to independence?

Fischer has an answer. He argues that the Cavalier cry against tyranny expressed by Jefferson, Washington, and other Virginians wasn't the least bit out of character. In fact, it came straight out of their essential conviction that free white men of property are the morally proper holders of all the rights and liberties that matter:
Virginian ideas of hegemonic liberty conceived of freedom mainly as the power to rule, and not to be overruled by others. Its opposite was "slavery," a degradation into which true-born Britons descended when they lost their power to rule....It never occurred to most Virginia gentlemen that liberty belonged to everyone. It was thought to be the special birthright of free-born Englishmen -- a property which set this "happy breed" apart from other mortals, and gave them a right to rule less fortunate people in the world....

One's status in Virginia was defined by the liberties one possessed. Men of high estate were thought to have more liberties than others of lesser rank. Servants possessed few liberties; and slaves [and women] had none at all. This libertarian idea had nothing to do with equality. Many years later, John Randolph of Roanoke summarized his ancestral creed in a sentence: "I am an aristocrat," he declared. "I love liberty; I hate equality."

In Virginia, this idea of hegemonic liberty was thought to be entirely consistent with race slavery....The growth of race slavery in turn deepened the cultural significance of hegemonic liberty, for an Englishman's rights became his rank, and set him apart from other less fortunate than himself. The world thus became a hierarchy in which people were ranked according to many degrees of unfreedom, and they received their rank by the operation of fortune, which played so large a role in the thinking of Virginians. At the same time, hegemony over others allowed them to enlarge the sphere of their own personal liberty, and to create the conditions within which their own special sort of libertarian consciousness flourished.
Edmund Burke made similar observations when describing this new Southern breed in Parliament:
A circumstance attending these colonies...makes the spirit of liberty still more high and haughty than in those to the northward. It is that, in Virginia and the Carolinas, they have a vast multitude of slaves. Where this is the case in any part of the world, those who are free are by far the most proud and jealous of their freedom...

I do not mean, Sir, to commend the superior morality of this sentiment, which has at least as much pride as virtue in it; but I cannot alter the nature of man. The fact is so; and these people of the southern colonies are much more strongly, and with a higher and more stubborn spirit, attached to liberty than those to the northward...In such a people, the haughtiness of domination combines with the spirit of freedom, fortifies it, and renders it invincible."
Since Albion's Seed was written 18 years ago, a lot of writers have drawn on it to explain events in modern America (a tradition I plan to continue, in due time). It's notable that the overwhelming majority of them seized on Fischer's dissection of the Scots-Irish Borderers, pointing out that the rednecks, white trash, holy rollers, crackers, and other assorted lower-class yahoos that supported Bush have been with us from the beginning -- and been nothing but trouble from then to now.

In the rush to blame the Borderers, though, this section on the Cavaliers has been almost entirely ignored. Yet I found it to be at least as powerful in its explanatory power. Because, as Dr. Robert Altemeyer's work makes clear, authoritarianism is always a two-part problem. While the Borderers may supply more than their fair share of right-wing authoritarian followers, they'd go nowhere without a high-social-dominance authoritarian leadership to guide them. And in Fischer's description of the Cavaliers, we see the early American prototype of that high-SDO authoritarianism.

It's all there: the love of luxury, the crony capitalism, the unabashed right to exploit others for what you can take, the love of hierarchy for its own sake, the tacit understanding that those who have more stuff also have more rights. Altemeyer's description of the high-SDO leader -- amoral, manipulative, intimidating, hedonistic, pitiless, exploitative, prejudiced, nationalistic, hostile to equality, religious only for outward appearances, and almost always politically conservative -- fits Fischer's portrait of the Cavalier gentleman like a fine Spanish kid glove on the hilt of a Sheffield dress sword.

And these people are still very much with us. It's not a coincidence that the Religious Right's two most influential leaders, Pat Robertson and Jerry Falwell, built their headquarters in Virginia; and that Washington's Republican elite still clusters in the old Cavalier city of Arlington. We hear Cavalier voices whenever someone tells us that wealth gaps are no big deal; that women and racial minorities are naturally inferior; that nobody besides the rich have a right to education or health care or anything else; that torture and war are necessary to maintain the American order; that the nation's corporate oligarchy will solve all of our problems if we simply give them their unfettered "freedom" to exploit every possible opportunity; and that we are upsetting the God-given moral order of the universe if we even think about trying to restrain them.

Among Cavaliers and corporatists, there is no morality beyond might makes right. There is no law -- and no honor -- beyond their own desire to expand their own sphere of power. There is no equality, no justice, and no universal freedom as we understand it. Theirs is the ancient plantation mentality we Americans have spent over 220 hard, bloody years trying to put behind us. It's an outdated social system that has no place in a modern technological society -- yet, in almost every detail, it's the very world our new corporate royalists want to drag us back to.

In the back of their minds, they're just Virginia gentlemen, taking the liberties such gentlemen have always rightfully enjoyed at the expense of others. It's true that we owe a handful of Cavalier gentlemen a tremendous debt for so clearly articulating the principles of American liberty during the Revolution. But we should also remember that when these first men asserted their God-given right to life, liberty, and happiness, they had no intention of sharing those blessings with anyone else.

Update: Paul Krugman's latest blog entry shows how the Cavalier attitude still echoes through the upper classes in the south, and leaves its imprint on our national politics.

Friday, September 21, 2007

If Bush had been in charge in '42

-- by Dave

Oliver Willis observes that the right-wingers, in their mass fainting spell over's Gen. Petraeus ad, have been busy speculating what America would have looked like if MoveOn had been around during World War II (see here for a local example, which seems not to credit or link to the original).

Never mind, of course, that the historical examples are far removed from each other both by circumstance and context, and that comparing Petraeus with Eisenhower is like comparing Christopher Cross with The Beatles. What the hell -- we can have a little fun with this line of speculation, to wit:

What if Bush and Cheney had been in charge at the time of Pearl Harbor?

I dunno about you, but it's pretty clear that this:

… would have been replaced by this:

And of course, it would now be 1949 and the president would probably be explaining why they hadn't yet captured Hitler (he's not that important, you know) and the invasion and continued occupation of India was the major battle front in winning the war.

What happened in Jena

-- by Dave

I'll be the first to admit that I, like a lot of other journalists, really fell down on the story of what was going on in Jena, Louisiana. Fortunately, it didn't matter one bit.

I was alerted to the story a few weeks ago by readers who asked me to look into it -- and unfortunately, my deeply bred caution about stories like this kept me from delving into it more deeply. I've dealt with enough crime-based civil-rights stories over the years to know that the truth is not always something you can obtain from just a cursory look at the publicly reported facts; after going through what was reported in the press, my initial impulse was to want to see the court records and charging documents and wait to see what came out in the trials.

Since it was taking place in Louisiana and I'm up here at the other end of the country, and I haven't any good sources in that neck of the woods, I decided to watch and wait and hope more came out. Boy, did it.

The march yesterday was remarkable not just for the size of the turnout, but for the passion for the cause of black Americans' civil rights that it seemed to reawaken. The presence of all those mostly silent faces demanding justice for a group of young black men was a truly awe-inspiring sight, far more so than any words spoken from the civil-rights spokesmen who leapt onto the stage the march provided.
One year ago, after a black student asked an administrator's permission to sit under the tree—and was told he could sit wherever he liked—three white students hung nooses from the tree's branches the following day. The local school superintendent dismissed the incident as a youthful prank and refused to expel the white students involved, outraging blacks who were offended by the potent lynching imagery. Months of racial unrest followed in the town, culminating in the December beating.

School officials cut down the infamous tree in July, hoping to eliminate it as a focus of protests. But the demonstrators were undeterred, chanting and marching 12 abreast in a mile-long procession through the streets from the courthouse to the high school courtyard, where they ringed the spot where the tree used to stand.

Conversely, you had to take not of the white residents' reaction, which Chicago Tribune reporter Howard Witt, in his audio report, described them as standing "with their arms folded, glaring at them."
"They have the freedom to march and freedom of speech, but our town is not racist like this is being depicted," said a white resident who would identify himself only as Jay. "The nooses were just a joke."

No officials of the town, which is 85 percent white, offered any comments about Thursday's march. In the past, they have angrily insisted that Jena suffers from no racial tensions.

But some of the demonstrators, eyeing the wall of portable toilets and the town's failure to set out any trash receptacles to accommodate the crowds, sharply disagreed.

"They want to see a mess left so they can complain how we trashed the place," said Earnestine Hodnett, 58, of Virginia Beach, Va., "They want this demonstration to fail."

Note the excuse given in press accounts by the prosecutor for his questionable actions leading up to the march:
District Attorney Reed Walters, who is prosecuting the case, said Wednesday that race had nothing to do with the charges.

He said he didn’t charge the white students accused of hanging the nooses because he could find no Louisiana law under which they could be charged. In the beating case, he said, four of the defendants were of adult age under Louisiana law and the only juvenile charged as an adult, Mychal Bell, had a prior criminal record.

“It is not and never has been about race,” Walters said. “It is about finding justice for an innocent victim and holding people accountable for their actions.”

Actually, of course, the young white men who hung the noose could be charged with a number of crimes under Lousiana statute, particularly criminal intimidation and threatening with a bias motive, i.e., a hate crime. But like a lot of white prosecutors, it's easier to see such behavior as "boys will be boys" when the perps are white than when they're black.

Perhaps even more importantly, it's worth celebrating the fact that the march was an awesome demonstration of the power of blogs to bring people together and to do it quickly:
Yet this will be a civil rights protest literally conjured out of the ether of cyberspace, of a type that has never happened before in America--a collective national mass action grown from a grassroots word-of-mouth movement spread via Internet blogs, e-mails, message boards and talk radio.

Jackson, Sharpton and other big-name civil rights figures, far from leading this movement, have had to scramble to catch up. So, too, has the national media, which has only recently noticed a story that has been agitating many black Americans for months.

As formidable as it is amorphous, this new African-American blogosphere, which scarcely even existed a year ago, now comprises hundreds of interlinked blogs and tens of the thousands of followers who within a matter of a few weeks collected 220,000 petition signatures--and more than $130,000 in donations for legal fees--in support of six black Jena teenagers who are being prosecuted on felony battery charges for beating a white student.

"Ten years ago this couldn't have happened," said Sharpton, who said he first heard about the Jena case on the Internet. "You didn't have the Internet and you didn't have black blogs and you didn't have national radio shows. Now we can talk to all of black America every day. We've been able to form our own underground railroad of information, and when everybody else looks up, it's already done."

.... But many black bloggers say the Jena demonstration is really more about a new generation of civil rights activists who learned about the Jena case not from Operation Push but from hip-hop music blogs that featured the story or popular black entertainers such as Mos Def who have turned it into a crusade.

"In traditional civil rights groups, there's a pattern--you call a meeting, you see when everybody can get together, you have to decide where to meet," said Shawn Williams, 33, a pharmaceutical salesman and former college NAACP leader who runs the popular Dallas South Blog.

"All that takes time," Williams added. "When you look at how this civil rights movement is working, once something gets out there, the action is immediate--here's what we're going to write about, here's the petition, here's the protest. It takes place within minutes, hours and days, not weeks or months."

This new, "viral" civil rights movement now taking shape still benefits from the participation of well-known leaders like Jackson or Sharpton--it just doesn't depend on them, bloggers say.

It was black bloggers, for example, who first picked up the story of Shaquanda Cotton, a 14-year-old black girl from the east Texas town of Paris who was sentenced to up to 7 years in youth prison for shoving a hall monitor at her high school. The judge who heard her case had given probation to a 14-year-old white girl charged with the more serious crime of arson.

After the bloggers and their readers bombarded the Texas governor with protest letters and petitions, Texas authorities freed Cotton--days before Sharpton had scheduled a rally on her behalf.

"When Rev. Jackson or Rev. Sharpton or other recognized leaders get involved, that's helpful, and it helps them--they can see where momentum is building around an issue," said James Rucker, the 38-year-old founder of Color of Change, an Internet-based civil rights group that has more than 280,000 subscribers. "You can argue they came late to Jena, but they are here now, which is good."

The blogs also serve as watchdogs over more traditional civil rights groups. When the NAACP first began featuring the Jena case on its Web site and claimed to be soliciting contributions for the teens' legal defense, it was a black blogger who quickly pointed out that the donation link directed visitors to the generic NAACP fundraising page, with no way for donors to direct their funds to the Jena defendants.

Within days, the link was redirected to a bona fide Jena 6 fundraising site.

None of the top-tier liberal bloggers paid the Jena situation much attention in the weeks leading up to the march, and those of us on the left dedicated to civil-rights and race issues -- like myself -- tended to let it slide. The bloggers who made this happen were all "bloggers of color" whose own burgeoning network turned out to be truly potent.

Fortunately, their energies made the difference in Jena, and now the whole world is watching and paying attention. That includes those of us who should have been doing so in the first place.

Wednesday, September 19, 2007

The return of Joe the Fixer

-- by Dave

If I were a New Yorker trying to get to the bottom of the "Troopergate" scandal that's enmeshed Democratic Gov. Eliot Spitzer, I'd be looking plenty askance at their new special prosecutor in the case:
Senate Investigations Committee Chairman George Winner, R-Elmira has, as expected, named Washington lawyer Joseph diGenova as “Special Counsel'’ in the Troopergate affair.

Amid concerns by the Republican dominated Senate that the state Ethics Commission, with a Spitzer-appointed chairman and its scheduled expiration next week, and Democratic Albany County DA David Soares would go easy on their investigation of Troopergate, Senators had said they wanted an outside counsel.

While he’s from D.C. and is an outside by Albany standards, diGenova has, as a federal prosecutor and then counsel to Congress, investigated some hefty Democratic targets including former Washington D.C. Mayor Marion Barry in the 1980s and the Teamsters in 1997.

Of course, diGenova is known to the DFHs of the liberal blogosphere as "Joe the Fixer" for his, ah, very special prosecutorial skills. As I noted back in 2004:
For those keeping score, diGenova was the "independent counsel" appointed to investigate former President George H.W. Bush and Co. for their illegal handling of Bill Clinton's passport files. For some reason, diGenova was conveniently appointed to the investigation just a couple of years before the U.S. District Court of Appeals ruled that the counsels' most important attribute was independence from the administration under investigation.

Here's how diGenova's absurdly partisan dismissal of the charges was reasoned in 1995:

As independent counsel, I have just wrapped up a three-year inquiry into the State Department's search of Bill Clinton's passport file when he was a Presidential candidate. The investigation found no criminality, just political stupidity, in the Bush Administration.

Hey, it worked the first time, didn't it?

Incidentally, as Robert Parry has reported at The Consortium, diGenova's whitewash covered up more than just the passport files affair -- it also papered over the possible enlistment of the Czechoslovakian secret police to dig up dirt on Clinton. Nonetheless:

Despite the phone records and the public declarations by Czech intelligence veterans, diGenova said he "found no evidence linking the publication of the [1992] Czech press stories to either Czechoslovak intelligence or the Bush-Quayle campaign." Similarly, diGenova announced that he found nothing wrong with the Bush administration's search of Clinton's personal passport files or its leaking of the confidential criminal referral about those files a month before the 1992 election.

The report aimed its harshest criticism at State Department Inspector General Sherman Funk for suspecting that a crime had been committed in the first place. DiGenova's report mocked the IG for "a woefully inadequate understanding of the facts."

Stung by the criticism, John Duncan, a senior lawyer in the IG's office, expressed disbelief at diGenova's findings. Duncan protested in writing that he could not understand how diGenova "reached the conclusion that none of the parties involved in the Clinton passport search violated any federal criminal statute. Astoundingly, [diGenova] has also concluded that no senior-level party to the search did anything improper whatever. This conclusion is so ludicrous that simply stating it demonstrates its frailty."

Duncan saw, too, a dangerous precedent that diGenova's see-no-evil report was accepting. "The Independent Counsel has provided his personal absolution to individuals who we found had attempted to use their U.S. Government positions to manipulate the election of a President of the United States," Duncan wrote.

Here's another, more detailed, account of the matter by Parry.

If New Yorkers were hoping for a clean, apolitical investigation, well ... better luck next time.

Tuesday, September 18, 2007

Looking out for the white guys

-- by Dave

I guess Tom Schaller should have expected a strong visceral reaction to his superb Salon piece about the decline of the white male voter's influence:
I'm talking about the white male voter, or at least a certain long-coveted variety thereof. He is variously known as "NASCAR dad" -- that shirt-sleeved, straight-talkin', these-colors-don't-run fella who votes his cultural values above all else -- or "Bubba," as Steve Jarding and Dave "Mudcat" Saunders affectionately call him in their book, "Foxes in the Henhouse." Start looking on milk cartons for Bubba because he has vanished, and not a moment too soon: The Democratic obsession with the down-home, blue-collar, white male voter, that heartbreaker who crossed the aisle to the Republicans many decades ago, may finally be coming to a merciful end.

This is of course the real hot-button stuff on which the conservative movement has thrived for the past couple of decades and more. It's their red meat. If there's been anything that the GOP has been about -- since the arrival of the Southern Strategy, -- it's been about defending the interests of white males. Even Bill O'Reilly said as much, when he decried the "liberal" New York Times and "the far left" for what he says is their agenda "to break down the white, Christian, male power structure, which you're a part, and so am I, and they want to bring in millions of foreign nationals to basically break down the structure that we have."

Naturally, who should leap to the rostrum but the ultimate defender of white maledom, the OxyCon Artist himelf: Rush Limbaugh:
I don't even know if this guy understands how elitist and arrogant this guy sounds. (paraphrased) "Get rid of those hicks! We don't want them in the Democrat Party! It's a waste of time to try to go get 'em," is what he's saying. "The simplest explanation for Bubba's absence to date..." I want you people to know this, you Bubbas out there -- as defined by this guy and other Democrats. You NASCAR-types, you Southern hayseed hicks, this is what they've always thought of you. They don't like you. They don't want to you in their party. They are embarrassed to have you amongst them, and this guy's letting it be known.

That's been Limbaugh's basic storyline for the past 18 years and more -- liberals hate white males and want to take their privileges their way of life away from them. It's an old schtick. And you know what? I don't think it's going to really work anymore.

As Schaller goes on to explain (though I guess we can predict that few if any of Limbaugh's listeners or readers will go on to actually read this far):
Tens of millions of white men still vote Democratic, of course, and not just Prius drivers, eggheads, grunge-band leaders or Warren Beatty's Hollywood buddies. Most notably, working-class white men who are current or retired union members cast their votes for Democrats, in the stubborn belief that only Democrats will protect and promote their economic interests. "The 2004 CNN exit poll data shows that [John] Kerry lost white males by 31 points if they weren't in a union, but won them by seven points if they were -- a 38-point difference," says Mike Podhorzer, deputy political director of the AFL-CIO. "It's no accident -- union members understand that their votes make a difference, for their wages, their healthcare and their pensions. If, as they say, 'there's something the matter with Kansas,' there's nothing the matter with union members."

Well, those are the people Limbaugh's been trying to pry away from the Democratic circles for many years now, and he probably succeeded to some extent in the past two elections. But after two terms of right-wing rule, there are a lot more working men who know the real score now and will be voting accordingly -- Limbaugh's appeals notwithstanding.

And as Schaller observes, trying to chase these voters is exactly what Republicans want us to do:
Republican pollster Whit Ayres has a clear preference. "I would dearly love for the Democrats to spend millions of dollars trying to persuade NASCAR fans to vote for the Democrats," Ayres chirped last summer. "They tend to be disproportionately southern, disproportionately white and disproportionately male, which pretty well defines the core of the Republican Party." In other words, it's a waste of time and resources for the Democrats to pursue them -- a classic sucker's bet.

Has anyone noticed that this approach is at the heart of the Beltway Democratic strategist worldview? All that well-meaning advice about how Democrats need to be about civility and moderation and reaching out to NASCAR dads and being bipartisan -- well, it's Republican advice.

When Republicans begin to follow their own advice, maybe Democrats can do likewise. Until then, we're probably best off listening to advice from people who actually have all our interests at heart. I'm not worried about it including white males like me -- we'll always get a place at the table because of who we are and the power we possess, now and for the forseeable future. But making a seat at the table for everyone else seems a lot smarter to me.

Monday, September 17, 2007

Bolder by the day

-- by Dave

I'm not sure if I should say anything, but it seems to me things are a lot more active on the overt white-supremacist front these days. (This in contrast to the 1990s, when all the activity was on the pseudo-mainstream "Patriot" front.) I'm not sure if it means anything, but if it does, it can't be good.

Mostly, it seems that, whereas white supremacists have tried to sublimate and disguise their message and their agendas for the past couple of decades and longer, we're seeing a lot more undisguised and unrepentant racism these days. Maybe they're taking their cues from their media icons.

There was the policewoman in the video above who posted some ugly remarks on YouTube and wound up taking an early retirement:
The Columbus police officer whose racist and anti-Semitic Web site prompted protests from residents and City Council members has resigned and will seek retirement benefits for a disability.

Officer Susan L. Purtee, 60, a member of the Police Division for 15 years, was not pressured into resigning, police spokeswoman Amanda Ford said.

"She did this of her own free will," Ford said.

Purtee, who could not be reached at her Grove City home last night, turned in her resignation Thursday. It's effective Sept. 22.

"I believe she's on scheduled vacation until then," Ford said.

... Purtee's Internet videos, created with her sister, Barbara Gordon-Bell, 52, of Coral Springs, Fla., blame Jews, blacks, illegal immigrants and Cubans for a variety of the nation's problems. The sisters call themselves "the Patriot Dames."

In a telephone interview last night, Gordon-Bell said her sister has put a video on YouTube since the news of her Web site broke Aug. 28. The video, titled "O'Reilly 9-12-07," responds to Fox commentator Bill O'Reilly's discussion of her.

In it, Purtee says someone threatened to kill her. She says she never did anything wrong and that she has protected people in the inner city, many of whom have called to offer support.

In the video, she also blames Jews for calling her "trailer trash" and says everyone in her department knows from her record that she's not racist.

Purtee was off-duty when she made the videos with her sister. The women never mention where Purtee works, though their Web site,, notes that she is a law-enforcement officer.

What exactly induces closeted racists to "come out", as it were, and expose their real beliefs to daylight? Evidently this law officer (whose record, according to one report, is less than sterling to begin with) somehow felt she could remain anonymous, which speaks volumes about her judgment to begin with.

In any event, the organized haters are also coming out more brazenly too, like the outfit in Flint, Michigan, calling themselves the "Rollingwood Skins," vowing to take a high public profile and "clean up" the town's influx of brown folks:
The Rollingwood Skins are part of what the Southern Poverty Law Center in Montgomery, Ala., sees as an upswing of hate activity fueled by anti-immigration fervor. In the past two years, the SPLC estimates 144 new extremist groups have formed to "harass and intimidate immigrants."

Mark Potok, director of the SPLC intelligence project, said the immigration debate is a boon for Nazi groups.

"It's really a debate about people with brown skin," said Potok. "It's an issue for them to exploit."

Loree said he believes nonwhites and illegal immigrants have ruined Flint's parks and destroyed neighborhoods with drugs and crime.

With his swastika flag pin and shaved head, he's unhappy with the state of the city as a whole. The Rollingwood Skins - named for a park near Flint's Kearsley Dam that Loree said has fallen into disrepair - say they want to clean up the area.

The group has spent the past two months passing out red fliers directed at "white Americans" and asking people to join and "reclaim your white heritage." Loree said he isn't afraid to parade down neighborhood streets in a brown shirt with his swastika flag aloft.

By speaking out against what he sees as slights against white people, Loree said he is trying to boost pride for his race.

He insisted he doesn't advocate violence to cure society's ills.

"I'm not Hitler," said Loree.

That's not to say he doesn't agree with a lot of Adolf Hitler's beliefs, though.

Ah yes, it's a veritable Springtime for Hitler in the American hinterlands. A Minuteman organizer from Arizona has been seen hanging with his homies from the National Socialist Movement in Nebraska:

From the SPLC's Hatewatch site:
“J.T.” Ready, a prominent Minuteman Civil Defense Corps volunteer and anti-immigration activist based in Phoenix, has been flitting around the edges of the neo-Nazi movement for more than a year now, quietly creating a profile on the racist social networking website New Saxon and attending a private gathering organized by the neo-Nazi organization National Vanguard.

But when the National Socialist Movement held an anti-immigration rally in Omaha, Neb., on Sept. 1, the leader of the Americans First nativist extremist group was making his public debut as a full-blown neo-Nazi. Photographs (above) captured a grinning Ready, clad in a grey business suit, standing side-by-side with NSM members who wore brown-shirt uniforms with swastika armbands. Any doubt that Ready was an open white supremacist, as well as a hard-line nativist, evaporated at that point.

Don't ask me what's going on. Must be something in the water.

Bicycles and the 'freeloaders'

-- by Dave

Yes, we write letters. Or in this case, op-eds in the Seattle P-I:
When Dean Trier ("Cyclists need to soft-pedal their wants," Sept. 10) assures us that he has "nothing against bikes, bikers, bike clubs or bike trails," it's sort of like the fellow who assures you he's not a bigot, but then proceeds to tell you an ugly racist joke. Because for the rest of his guest column, Trier describes cyclists as "freeloading sponges" pushing "gimme-gimme-gimme agendas" and a string of similar pejoratives.

Well, Trier's entitled to his opinion about cyclists, but he isn't entitled to his own facts about them. And the contention that cyclists are "freeloaders" (a charge made frequently by bike-bashing P-I letter writers) is not only wrong-headed, it actually inverts reality on its head. The hard truth is that cyclists subsidize automobile drivers such as Dean Trier.

Trier, like a lot of misinformed folks, seems to believe the only road taxes we pay are motor vehicle licensing fees and fuel taxes. But the truth is that those fees largely pay for state and federal highways, and even then only a portion of them. The rest of the costs of those roadways are borne by all taxpayers generally, including bicyclists, through local, property and sales taxes. Local roads, where you find most cyclists, are another story altogether.

Indeed, most bicyclists in fact also own cars, so they're also paying the licensing fees and gas taxes as well. But by using their bikes in place of cars, the wear and tear (and subsequent maintenance costs) they inflict is exponentially less than that caused by cars and trucks.

A 1995 study titled "Whose Roads?" by cycling advocate Todd Litman laid all this out in detail. The study estimated that automobile users pay an average of 2.3 cents per mile in user fees, including fuel taxes and vehicle registration fees, while they actually impose 6.5 cents per mile in road service costs. Who pays the difference? It's picked up by general taxes and property assessments. So while bicyclists pay an equal share of those taxes, they impose costs averaging only 0.2 cents per mile in road service costs.

The amount bicyclists overpay leaps out when you look at the costs of local roads, the roads cyclists use most. Litman found that only a third of the funds for their construction and maintenance comes from vehicle user charges; local property, income and sales taxes pay the rest. Automobile user fees contribute only about 1 cent per mile toward the costs of local roads but simultaneously impose costs more than six times that amount.

Perhaps it would further ease Trier's animus toward cyclists if he contemplated some of the other benefits they bring to the rest of the population:

-- They reduce congestion by taking cars off the road.

-- They reduce pollution and its associated costs.

-- They improve the general health of their users and drive down health care costs.

-- They reduce the use of gas and oil, reducing our dependency on Middle East oil for energy.

Now, it is true that cycling advocates are becoming more aggressive in seeking to carve out their fair share of the city roadways. But there are a couple of reasons: (1) they've been much too passive in the past, and (2) there are many thousands more of us out there now.

And despite what Trier might think, those are the "everyday cyclists" that he says he has nothing against.

Be sure to check out the comments. As Serial Catowner notes within, "Well, at least we've debunked one tired liberal nostrum: turns out that education doesn't work -- at least, not for the anti-bicycle crowd posting here today."

Goldy at Horses Ass has more.

Sunday, September 16, 2007

Escaping Olson

-- by Dave

It's looking as if -- for a change -- better sense is prevailing in the Bush White House, and it's going to eschew the temptation to nominate Ted Olson as the next Attorney General, and is going with a respected judge named Michael Mukasey. This is good news for the country, and even good news for Bush; as Joe Conason observed, an Olson nomination would only have deepened Bush's reputation as pugnacious, not presidential.

The conservative base is complaining about the decision, and apparently there's a move afoot to give Mukasey the Harriet Miers treatment. But this time, there won't be a Republican Congress about to enable it.

We can all breathe a collective sigh of relief, I think, because Olson would have been a disaster, especially when it came to this White House's outrageous assertions of executive privilege as part of its overwhelming executive-branch power grab. He was largely the architect of it, and he would have pursued it with a vengeance. There looks to be little likelihood Mukasey will be so inclined.

In preparing for the possibility of an Olson nomination, I spent some time going through my old notes and my copy of the Independent Counsel report in his case, which I reported on for Salon back in 2001. In the process of writing that story, I created a timeline that lets you see how the whole scandal unfoldfed.

I think it's especially instructive, because all the underlying worldviews that we've come to know in the past eight years were present here: the duplicitousness, the cynical manipulation of the law for partisan outcomes (particularly in covering up their own wrongdoing), the ass-covering and personal agendas, and most of all the venomous rage and desire to avenge Watergate -- they all come bubbling up.

This earlier scandal gives a kind of window into how Bush and his legal team have operated up to this point. Essentially, they are real Nixonites wreaking Tricky Dick's Revenge on the country, wresting back executive-branch powers lost during Watergate and then pioneering new realms in power-snatching. They began doing this during the Reagan years, and the Dubya years have basically been seven years of wish fulfillment for their wildest schemes.

So for your Sunday reading, I thought I'd give you the timeline I created. If nothing else, it's an entertaining tale in gross hypocrisy and ethics-less legal maneuvering, Republican style. Enjoy.


Cast of players:

Theodore B. Olson, Assistant Attorney General for the Office of Legal Counsel

Anne Gorsuch Burford, Administrator, EPA

Rita Lavelle, assistant administrator for solid waste and emergency response

Rep. Elliott H. Levitas, D-Ga.

Rep. John Dingell, D-Mich.

Carol Dinkins, Assistant Attorney General, Land and Natural Resources Division

Robert Perry, EPA General Counsel

John Daniel, EPA Chief of Staff

Larry Simms, Deputy Assistant Attorney General, OLC

Michael Barrett, chief counsel for Dingell subcommittee

Edward C. Schmults, Deputy Attorney General

D. Lowell Jensen, Assistant Attorney General, Criminal Division

Laurel Pyke Malson, attorney aide to Olson

Michael W. Dolan, Deputy Assistant Attorney General for Office of Legislative Action

Edwin Meese, Attorney General

Alexia Morrison, independent counsel


Sept. 13, 1982: House Subcommittee on Investigations and Oversight of the Committee on Public Works and Transportation, chaired by Rep. Elliott H. Levitas, D-Ga., seeks access to EPA files involving enforcement of the so-called “Superfund” hazardous-waste cleanup provisions, particularly focusing on the activities of Rita Lavelle, assistant administrator for solid waste and emergency response. EPA staff reluctant to disclose some information.

The information in question involves the handling of funding for three Superfund sites: Stringfellow in California, Berlin and Farrow in Michigan, and Tar Creek in Oklahoma. Specifically, there are concerns that “election tracking” -- the practice of timing key events, such as the announcement of cleanup funding, to assist the election campaign of “friendly” (read: Republican) politicians -- had occurred in the funding of those three sites. Such activity by federal authorities had been outlawed in the post-Watergate ethical reforms passed by Congress.

Moreover, there was some concern that Lavelle -- who had been previously employed as an executive at Aerojet-General Corp., one of the contributors at the Stringfellow site -- was continuing to work on the Stringfellow case despite having been ordered away by her EPA superiors, largely because of the gross conflict of interest her work on that case represented. There were also charges that the EPA was mishandling enforcement at the site in ways that favored Aerojet.

Sept. 15: Levitas sends formal request to EPA Administrator Anne Gorsuch Burford.

Sept. 16: EPA staff seeks advice on disclosure issue from Land and Natural Resources Division staff of the Justice Department, headed by Assistant Attorney General Carol Dinkins. In turn, Dinkins seeks advice from Office of Legal Counsel, headed by Olson.

Sept. 17: John Dingell, chair of the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce, sends request for second subset of documents being sought by Levitas.

Executive branch produces large number of documents over next three months, but some are withheld on grounds that their release might prejudice ongoing EPA investigations.

Oct. 1: Olson participates, as chief of OLC, in a meeting of EPA and Justice Department officials to discuss turning over these “enforcement sensitive” documents. OLC favors a “staged response” in releasing the documents, noting that they include some “politically sensitive” material. EPA officials are inclined to transmit all documents, while Justice officials are adamant that broader Executive Branch interests are at stake and argue vehemently against unlimited access.

A footnote describes a conversation after the Oct. 1 meeting between EPA General Counsel Robert Perry and Burford’s chief of staff, John Daniel, that took place in a car. “Perry told him that he had heard rumors that Dinkins was going to resign, that he had been contacted about the job, and that he would like to go to work at the Department (of Justice). Daniel saw this as a possible explanation for what he viewed as Perry’s weakness and failure to be an advocate for Burford.” This weakness plays a central role in unfolding events.

Oct. 6: Deputy Assistant Attorney General Larry Simms -- Olson’s top deputy -- meets with Perry in his office. Simms complains that the “enforcement sensitive” documents have not yet been sent to Justice, as requested. Perry tells him that no one at the department is interested in withholding them. Simms argues forcefully that the EPA is not free to give up the documents.

Afterwards, Perry meets with Michael Barrett, chief counsel for the Dingell panel, who is attempting to pin Perry down on document production. No agreement is reached, but Perry promises to get back to Barrett within the week.

Oct. 7: Perry reports back to Simms. Perry reports that Dingell staff is unwilling to compromise, and reiterates that no one at EPA is interested in withholding the documents. [At this point, large sections of Simms’ response is redacted from OIC report, ostensibly because it contains grand jury material. It does, however, state: “Simms told Perry to finish gathering the documents as soon as possible and to send a complete set of copies to the Department.”]

Afterward, Perry meets with his deputy and EPA counsel staff and tells them that “someone at the Department [of Justice] had asked him to send the Department all of the requested Superfund documents, copies as well as originals, in order to rid EPA of actual possession of them and thus defeat the Subcommittee’s possible subpoena.” The staffers advise him that it would be “ill-advised” to do this.

However, Perry then calls up Barrett that afternoon and asks him hypothetically how the panel would respond if that were to happen. Barrett tells him the committee would view it as an obstruction of its inquiry, and threatens to hand him a subpoena that afternoon, if need be. Perry tells Barrett that someone at Justice suggested the transfer (but does not say who), then says he might have misunderstood the advice, and promises to inquire further and report back.

He does so that afternoon, and Simms advises him that EPA is required to keep its own copies of the documents and any attempt to shed them by that route would probably be criminal. Perry calls Barrett back and assures him EPA will retain copies of all the documents.

Oct. 8: Malson conducts first cursory review of documents for Olson and raises red flags. Simms forwards the documents to Dinkins at Lands for a thorough review. This review is apparently not conducted until after Dec. 1.

Oct. 14: Some of Dingell panel staff receive “eyes on” review of documents, with apparent approval by Simms and coordinated by EPA counsel. A proposal to allow secure review of the documents is floated by Dingell staff.

Oct. 15: At meeting of Justice lawyers to discuss Dingell request, Olson makes clear his disapproval of proposal for a secure review. The lawyer who offered it, Lands Deputy Assistant Attorney General Alfred Regnery (he had also facilitated the “eyes on” review, word of which made Olson irate), was shortly taken off the case, though Olson tells Simms the removal is unrelated to this matter.

Oct. 21: Dingell’s subcommittee serves subpoena for documents. Levitas subcommittee follows suit on Nov. 22.

Oct. 22-25: Olson drafts memo to President Reagan recommending he assert executive privilege in denying access to the documents. It contains the line: “The Administrator concurs in this recommendation.” It also states without qualification that the documents contain no evidence of wrongdoing by Administration officials.

However, Olson and his staff had in fact failed to ascertain whether either assertion was true. There is no evidence that anyone at OLC contacted Burford or discussed with her staff their plans to asset executive privilege -- a burden she would be forced to shoulder. Apparently someone at an Oct. 25 meeting to discuss the memo outlines what her official response should be, but there is no evidence that information is ever relayed to her.

And in fact, Burford was far from concurring -- a point that had been suggested in that Oct. 25 meeting, at which Burford’s position was summed up: “be sure these documents are worth it before we go through this.”

Later, both Olson and Simms say they thought their statement was true when they wrote it, but there was no evidence that Burford (or anyone else from EPA) in fact had ever voiced her concurrence to them. But they cited the “totality of the circumstances,” including the fact that Robert Perry -- who was present during many of the preliminary meetings where executive privilege was discussed -- failed to state that Burford had any opposition. Perry’s apparent eagerness to get along with his would-be colleagues at Justice may have colored his behavior here.

Moreover, according to the IC’s report, “Burford failed to see how Olson could have been unaware of her reluctance over the privilege claim. She stated her hesitancy was obvious and included suggestions to Olson that alternatives to privilege be considered and employed.”

Equally important, WRT the Oct. 25 memo, is the assertion the documents contained no evidence of wrongdoing. In fact, his staff had not even conducted a thorough review of the Dingell documents -- some 51 pieces in all -- for their contents, and would not do so until Dec. 9. (There had been a preliminary review in early October, and even then red flags had been raised; the OLC lawyers forwarded them at that point to Lands attorneys for more detailed review. There is no indication that review was produced.) The additional Levitas documents were not examined until an even later review.

[A central tenet of asserting executive privilege is that the information being protected must not include evidence of misconduct by the Executive Branch.]

Oct. 26: Reagan signs directive to Burford to invoke executive privilege over the subpoenaed documents. However, because the Dingell hearings had been postponed, the directive was left in a safe without ever being sent to Burford or anyone else.

Nov. 1: Olson and Burford meet in Burford’s office, along with EPA, Justice and White House staff, and there is “immediate antagonism” between them over the executive-privilege plan. Burford’s concerns are perhaps more political than principled; she says she had been dismayed by the way James Watt, the Interior Secretary who the previous year had invoked executive privilege in a similar dispute, had not been sufficiently backed up by the Administration. She backs down only after asking whether the President wants her to exert executive privilege, and being told he did.

Strangely enough, not a single person at the meeting manages to tell Burford that Reagan in fact had already signed a directive ordering her to do so.

Nov. 22: After Levitas panel issues its subpoena, Olson and Burford meet again. Burford immediately raises her concerns about being left to dangle in the wind like Watt, and Olson assures her that she has the full support of the Justice Department. (Ensuing events would indicate her fears were well-grounded.) Then she asks Olson if Justice can take over the assertion of privilege, or whether at least Olson himself can make the assertion before Congress; he demurs and says the job must be hers. Burford complains that she is not in the driver’s seat but is being forced to take the “flak.” Olson responds by explaining that the President listens to advice from all quarters, including hers, and then acts accordingly -- suggesting that she needed to take the hit for the home team, so to speak.

Nov. 30: Following advice from Justice Department, President Reagan directs Burford to assert executive privilege in response to both subpoenas. Burford does so on Dec. 2 before Levitas panel, and on Dec. 14 to Dingell panel. Each committee promptly cites her for contempt of Congress.

Dec. 3: Perry testifies before the Dingell subcommittee. During a long and rancorous exchange, he denies ever having told Barrett that someone at Justice advised him to send all copies of the documents to Justice. He also says he can’t recall telling Barrett that the EPA had no interest in withholding the documents.

Dec. 9: Olson and his staff finally begin review of the contents of the withheld Dingell documents. A document is found indicating that Lavelle had in fact continued to participate in the Stringfellow case even after having written a letter of recusal. Staffers bring this document to Olson’s attention and he warns them not to jump to conclusions. Nonetheless, a few days later (Nov. 14), Perry transmits a copy of the document to the Dingell subcommittee with a letter explaining that it did not fall within the executive-privilege claim.

Perhaps as important, two other documents are contained within these that indicate activity in “election tracking” WRT funding announcements. However, Olson’s staff do not consider these of importance since they have not been instructed to look for this kind of activity.

Dec. 12: Simms and Olson meet to discuss Perry’s congressional testimony of Dec. 3. Simms is worried because he believes it to be perjurious. Simms later testifies that by this point he considered the privilege claim doomed because of the blows to the administration’s credibility brought by Perry’s testimony and the discovery of the Lavelle Stringfellow document.

Dec. 16: The Full House votes to hold Burford in contempt of Congress.

However, with Olson leading the charge, the Justice Department takes on the House citations. It files a civil lawsuit in the U.S. District Court for the District of Columbia, charging that the invocation of privilege was proper and that the contempt citations should not stand.

Jan. 14, 1983: Dingell sends another request to Burford for the documents, citing allegations that indicate the investigation is focusing on Lavelle.

Jan. 26-27: Justice officials meet to discuss the Dingell letter, including the possibility of opening a criminal investigation into the charges against Lavelle. Simms by this time strongly favored this course. Another participant indicates the charges against Lavelle might be true.

Deputy Attorney General Edward Schmults, at whose offices the Jan. 27 meeting is held, indicates a desire to involve the White House Counsel’s office. Simms argues that the matter belongs in Justice’s Criminal Division.

Feb. 1: Court dismisses Justice’s civil suit on behalf of Burford.

Feb. 2-3: Olson’s staff, with updated instructions, re-reviews the withheld documents and finds two documents from EPA attorneys under Lavelle that could constitute “election tracking”. Staff presents them to Olson, who indicates he will take the notes to Schmults.

Feb. 4: Burford asks Lavelle to resign. She refuses. She is removed by Reagan on Feb. 7.

Feb. 9: Simms approaches Olson again about pursuing a criminal investigation of the Lavelle charges. According to the IC’s report, “Simms was convinced that something had to be done about possible misconduct by EPA staff, and Simms had the impression from Olson that others at the Department did not want the documents to go to the Criminal Division.”

Feb. 10: Olson advises Simms that, rather than send the documents to the Criminal Division’s John Keeney, he had arranged for D. Lowell Jensen, Assistant Attorney General for the Criminal Division, to review them. Simms prepared a package complete with explanatory letter, which Olson removed and replaced with a note: “Lowell -- Here’s some reading for your spare time. Ted.”

Feb. 17: Burford has two meetings with White House officials, arguing strongly for giving up the executive-privilege claim. She then meets with Reagan himself, and tells him “his interests were not [being] well served” by the assertion of executive privilege, pleading with him to let her release the documents. Reagan seems to agree, but they all agree to wait to see if negotiations with the Dingell people, then under way, would bear fruit later that week.

Feb. 18: Agreement reached to release documents to Dingell and Levitas subcommittees.

Feb. 25: Stringfellow documents turned over to congressional panels.

March 9: Anne Burford resigns as EPA Administrator. Contempt citations are withdrawn shortly thereafter. John Hernandez is appointed acting EPA administrator, and Reagan agrees to give all subpoenaed documents to House subcommittees without going through the screening process.

March 10: Mrs. Burford, in farewell news conference, says she resigned because, ''It was getting to the point where I couldn't do my job anymore.'' Speaking to EPA employees, Hernandez vows to ''get this agency back to work.''

March 11: Reagan holds news conference at which he stoutly defends Mrs. Burford and blasts what he calls ''environmental extremists,'' who he says won't be happy ''until the White House looks like a bird's nest.''


Feb. 24, 1983: Rep. Peter W. Rodino Jr., D-N.J., chairman of the House Judiciary Committee, agrees to conduct inquiry into Justice’s handling of the Superfund documents. Rodino writes to Attorney General French Smith seeking documents. Second letter seeking more documents is sent March 2, seeking documents specifically related to Office of Legal Counsel’s role in the EPA controversy. Olson participates in drafting responses to the two letters, which are transmitted over signature of Robert A. McConnell, Assistant Attorney General of the Office of Legislative Affairs.

March 10: Ted Olson testifies before the Subcommittee on Monopolies and Commercial Law of the House Judiciary Committee. Five areas come under later scrutiny for their truthfulness.

I: Rep. John F. Seiberling, D-Ohio, questions Olson:

Mr. Olson, the question of whether EPA wanted to turn over the documents at some point before the decision was actually made not to do so, and who advised them not to, is a very important one. And I’d like to ask whether, to your knowledge, at any time EPA did indicate its willingness to turn over the documents during the course of your consideration of the Subcommittee’s request.

Olson’s answer:

I don’t recall having been told that by anybody associated with EPA. I did read the newspapers, and it seemed to be that through -- that that sentiment seemed to be being expressed, especially in the last week or two. But that’s all I know.

This response would, in today’s context, be hailed as “Clintonesque” -- evasive and misleading, though technically just safe, particularly since he prefaces it with “I don’t recall”. However, well before the Oct. 25 memo was drafted, Robert Perry had told Larry Simms (Olson’s chief deputy) that EPA was willing to turn over all the documents, and Simms testified that he relayed that information to Olson. In fact, he had that information -- he just hadn’t heard it himself from anyone at EPA, as his response states.

Indeed, during the Oct. 25 meeting that included Sherrie Cooksey from the White House Counsel’s office, discussing the memo recommending the president assert executive privilege, someone made clear what Burford’s position was, since Cooksey’s notes read that her position was: “be sure these documents are worth it before we go through with this.” As it turned out, this was sound advice, and had Olson followed it, everyone would have been spared the turmoil that followed.

It is also clear that at least by the Nov. 1 meeting between Burford and Olson that it was plain that the EPA administrator was reluctant to assert executive privilege. The IC report says: “Daniel recalled that at this or a later meeting with Olson, Burford said that enforcement sensitivity was not a basis for executive privilege, that Congress would get the documents anyway, and that she did not want to assert the privilege because she was mindful of the experience of Interior Secretary James Watt, who she felt had not been backed up by the Administration in his assertion of the privilege.”

Olson later tries to claim that this is irrelevant, since these meetings and other actions by Burford took place after the time frame posed by Seiberling’s question. This true only in a narrow sense: Reagan had signed the directive Oct. 26, but he did not deliver it until Nov. 30. It is clear that by then, Burford’s resistance was unmistakable.

Larry Simms is also concerned about Olson’s testimony. As the IC report puts it:

Simms viewed Olson’s answer as “incomplete,” because it did not include the discussion Simms had with Perry on Oct. 7 or 8, in which Perry said that nobody at EPA saw any reason not to produce the documents. Simms recalled that he had told Olson about the Perry conversation and did not understand why, in light of that discussion, Olson responded to Mr. Seiberling’s question about EPA’s willingness in a way that suggested that he had never been told about Perry’s statement.

However, as Simms would later note, Olson’s testimony in a narrow sense was literally true.

II:Rep. Jack Brooks, D-Texas, asks Olson about unanimity within the Executive Branch concerning the privilege claim. Olson responds:

[T]he people that were involved in the enforcement process at EPA from the enforcement level through the policy level through the Administrator, and at the Land and Natural Resources Division at the Department of Justice, and in my office, and the other people at the Department of Justice that were involved in the matter, and the Office of the Counsel to the President, and the President, agreed that this was a proper occasion for the invocation of the privilege, that it was in the best interests of the Constitution and the manner in which the Constitution assigns the enforcement of the law to the Executive Branch, and it was in the best interest of the enforcement process at that time.

Whenever other people or some people in that process may have changed their mind later because of developments or allegations or because it became uncomfortable, I don’t know. But --

Again a masterful display of disingenuous testimony. “Other people” -- a reference, apparently, to Burford and other EPA officials -- didn’t ever change their minds. As Burford observed in her commentary on the IC report: “Until told directly by Mr. Hauser, deputy legal advisor to the President, that the President wanted to assert executive privilege, it was my policy at EPA to give Congress ‘access’ to any and all documents requested. ... [A delineation of policy.] ... All of the above reasons substantiate my position that ‘access’ to document requests always be as full and complete as possible and that claims of privilege to hamper such discovery should not be used.

Burford goes on:

After I received the Executive Order of the President to assert executive privilege, I personally went twice to ask President Reagan to revoke his order, arguing that it was both a legal and a political mistake.

To interpret my acquiescence in an order from the President to assert executive privilege as a “recommendation” that he assert the privilege is convoluted and revisionist at best.

[The last phrase could be said to describe Olson’s entire modus operandi.]

OLC Attorney-Advisor Mark Rotenberg, who is attending, immediately becomes concerned with this part of Olson’s testimony, since he himself recalled a meeting at which he expressed reluctance about asserting executive privilege. He also recalled EPA officials being “uncomfortable and incorrigible” over the assertion of privilege.

Laurel Pyke Malson, one of Olson’s aides (who performed the December reviews of the withheld documents), also attending, later says she viewed Olson’s testimony as “deliberately evasive.” She later wrote that “Mr. Olson appeared to construe questions as narrowly as they reasonably could be interpreted.”

III: Rodino asks Olson whether Justice has provided all the documents requested in his letters and is not withholding any. Olson’s response:

Well, Mr. Chairman, we tried to provide everything that we have that pertains to the advice that we have given. Most of those documents are published.

I don’t included handwritten notes of my own. I make xerox copies of cases and make notes in the margin. There are scraps of paper probably everywhere. I’m not sure that we’ve included everything. We’ve included everything that we think is relevant to the questions that you’ve asked and to the advice that we’ve given.

IV: Seiberling asks Olson what advice OLC provided in support of the civil suit filed against the contempt citation. Olson says he provided a great deal of advice and agreed strongly with it. Seiberling asks whether Olson’s advice is in writing, and Olson responds: “I’m not sure.”

This response also stirs immediate concern on the part of Rotenberg, since Rotenberg knew that at least some of Olson’s advice in fact was in writing.

V:Rep. William J. Hughes, D-N.J., further inquires of Olson:

Let me be more specific so you can answer it perhaps. With regard to some of the documents you turned over bearing on executive privilege, there obviously were alternatives, discussions reduced to writing on the various options. Now, have they been turned over as well as the document that represents the final recommendation or decision?

Olson responds:

We did not prepare option papers, if that’s what your question is. Every draft, in a sense, presents options, every discussion presents options. That’s why I have difficulty with the basic questions. But I don’t know of any option papers or anything of that nature.

March 15: Smith testifies before the full Judiciary Committee, and says Justice Department would place no limits on access to documents on this matter.

March 16: Transcript of testimony forwarded to Olson for review.

April 1: (Note irony of the date) Olson returns testimony with changes, some merely typographical, but in some cases altering the substance of what he said.

-- He changes his response to Seiberling’s question about whether any of his advice on the civil suit was in writing from “I’m not sure” to “I’m not sure, I believe that some of it was.”

-- He changes his response on point III to: “They may have, but I do not recall having been told that by anybody associated with EPA. I did read the newspapers, and it seemed to be that that sentiment seemed to be being expressed, especially in the last week or two. But that’s all I can expressly recall relative, particularly, to the final decision which was made to claim a privilege relative to these documents.”

March 16-30: Alan Parker, Counsel to the Judiciary Committee, meets with Justice officials and staff twice to discuss document production. At this point, Parker believes that all responsive documents would be produced.

However, Schmults has decided that no handwritten documents would be produced -- and that Parker is not to be informed they were being withheld. Some Justice staff advise Schmults to inform Parker, but he refuses.

From April 1983 to April 1984, document production proceeds apparently smoothly, with Parker believing the Justice Department is providing all documents sought related to its requests. However, during this time a number of handwritten notes are withdrawn from files being produced at the instruction of Michael W. Dolan, Deputy Assistant Attorney General for Office of Legislative Action (under McConnell).

During this time, Schmults leaves Justice to return to private practice.

Sept. 28, 1983: Burford testifies before the Dingell subcommittee. Then-Rep. Albert Gore engages Burford in an extended colloquy regarding Mr. Olson’s behavior. Gore scores repeatedly:

Gore: If someone were to recommend to the President on Oct. 25, 1982, that the President assert executive privilege as to the documents in question, and then state specifically that the Administrator -- you -- concurs in this recommendation, that would be untruthful, wouldn’t it?

Burford: Mr. Gore, I tried very hard to be a member of this administration and a team player. I couldn’t run EPA and also run the Department of Justice. ... I made my arguments internally whenever I could, and when I was overruled by the Department of Justice, which is the attorney for the President, I went along with that decision.

Gore ... So you did not concur in the recommendation to the President.

Burford: Mr. Gore -- I was overruled.

Gore continues to try to pin Burford down on the question of whether she in fact concurred with the recommendation at the time it was made to the president. “I kind of gave up,” was her repeated response. At one point she says: “I don’t really want to do this, I don’t think this is a good idea.”

April 17, 1984: Dolan discloses to Judiciary Committee staff that handwritten notes have been withheld. He is later chastised by Olson for being “too forthcoming.”

May 18: Jensen produces more documents with cover letter informing Rodino that anything with “inchoate or incomplete thoughts” such as drafts, marginal notes and personal notes would not be produced.

May 24: Rodino responds that Jensen’s letter is an apparent rejection of committee’s request. Over ensuing months, more negotiations would ensue. Document production is ultimately not completed until 1985.

Dec. 5, 1985: Judiciary Committee issues its final report. It recommends that Attorney General Edwin Meese seek appointment of an independent counsel to investigate possible criminal conduct it found, including possible perjury and obstruction of justice by Olson, Schmults, Dinkins and Richard Hauser, deputy White House counsel.

Dec. 1985-April 1986: Department of Justice’s Public Integrity Section identifies four specific cases of misconduct by Justice officials: Edward Schmults, Theodore Olson, Carol Dinkins and Richard Hauser.

Schmults in particular is the object of an obstruction-of-justice inquiry for his role in withholding the handwritten notes from congressional investigators. Olson is targeted for a perjury investigation for his testimony, on the five points explored previously. Dinkins and Hauser are targeted for allegedly having certified their respective reviews of the withheld EPA documents falsely.

Most significantly, the Public Integrity Section describes the circumstances around these acts as:

a seamless web of events, germinating from the original decision to withhold EPA documents. Each criticism and allegation, whether relating to the handling of the EPA document controversy itself or the handling of the investigation of the Department’s role in that controversy, has as its context many facts and circumstances that comprise the heart of other criticisms and allegations. Accordingly, in our view, splitting off narrow areas for investigation by an Independent Counsel is artificial and may impede the Independent Counsel’s ability to fully explore the allegations.

Accordingly, Public Integrity recommends to Meese that jurisdiction of the IC “be broad enough to allow the Independent Counsel to investigate or prosecute any matter within the scope of this report.” This recommendation is completely ignored -- or perhaps heeded too well.

John Keeney, Deputy Assistant Attorney General for the Criminal Division -- who participated in the events, but nonetheless invoked the “rule of necessity” in staying in the line of review -- recommends that only Olson’s actions warrant an IC investigation.

Meese appoints William F. Weld, then U.S. Attorney for Massachusetts, to handle an independent review of the matter, since everyone at the Assistant Attorney General level or higher at Justice was forced to recuse himself from consideration of the matter, since each of them had been involved with the events or were close friends of Olson.

April 4, 1986: Weld recommends that an independent counsel be appointed to investigate both Schmults and Olson, but not Dinkins or Hauser.

April 10: Meese overrules both Weld and his own Public Integrity Section, instead handing down a very narrow referral limiting the scope of the independent counsel’s review to the behavior of Ted Olson.

It is worth noting that Meese and Schmults are attended college together (Meese says he “can’t recall” ever having met Schmults before 1980), and that Meese himself had been involved -- as counselor to the President -- in the events under investigation at EPA. Yet Meese not only refuses to recuse himself, he in fact ignores the independent recommendations he receives from his own career prosecutors and hand-picked special assistant. Meese defends this by referring to Keeney’s (potentially tainted) recommendations.

Moreover, Meese defends his decision by saying that Schmults and Dinkins “lacked the requisite intent under pertinent criminal statutes” -- a peculiar finding, since typically intent is determined during the course of an investigation (and lack or presence thereof usually plays a key role in determining whether to prosecute). Moreover, the allegations against Schmults and Dinkins both clearly reached the relatively low statutory standard for referral, and the question of intent is typically beyond the scope of the statutory preliminary inquiry. [Eventually, after Meese exploits this loophole, Congress in 1987 will explicitly bar such considerations as intent for refusing a referral under the IC statute.]

April 23: U.S. Circuit Court of Appeals for the D.C. Circuit, Special Division for the Purpose of Appointing Independent Counsels (“Special Division”) appoints James C. McKay as independent counsel to investigate Olson.

May 29: McKay withdraws from assignment. Alexia Morrison named to replace him.

Nov. 1986-April 1987: Within a short time of opening the investigation, Morrison comes to believe that the Public Integrity Section’s assessment was correct: this case involved a “web” of events that could not be separated one from the other, and the narrow referral meant it could not explore the matter properly. As the report puts it:

On the one hand, it began to appear that, viewed in total isolation from the complex of surrounding events and based on evidence we had collected to that point, Mr. Olson’s March 10 testimony probably did not constitute a prosecutable offense because it was literally true, even if potentially misleading in certain respects. Viewed in the context of those surrounding events, however, it appeared his actions might have been part of a larger pattern of conduct, involving high-ranking members of the Department, intended to obstruct the Committee’s inquiry. In short, if Mr. Olson was culpable at all, it was probably only as part of a larger concerted effort involving the conduct of others.

At the same time, it was our view that if any single act had obstructed the Judiciary Committee’s inquiry, it was the undisclosed withholding of the handwritten notes and other documents, for which Mr. Olson bore at most secondary responsibility. Accordingly, we feared that our jurisdictional mandate may have excluded those who, if any conduct was criminal at all, bore responsibility at least as great as, and possibly greater than, Mr. Olson’s.

So Morrison goes to work to expand her office’s jurisdiction. Of particular concern was her assessment that Meese’s referral was troubling, to put it kindly. The appearance of a conflict of interest was obvious, and the refusal to heed the advice of his own prosecutors cast a pall on the whole matter.

Nov. 14, 1986: Morrison writes to Meese and asks him to reconsider expanding her jurisdiction to include the charges against Schmults and Dinkins, pointing to “certain new information” her investigators had obtained that heightened the need for probing these areas. The letter asks Meese to refrain from participating in further decisions in the case because of the appearance of a conflict of interest.

Meese does not reply for three weeks. Morrison sends a second letter, pointing to the need for timeliness.

Dec. 17: Deputy Attorney General Arnold Burns responds to Morrison, saying Meese refused to recuse himself from the matter and refused to expand her jurisdiction.

Jan. 13, 1987: Morrison files with Special Division for expansion of her jurisdiction.

April 2, 1987: Special Division, citing Meese’s referral, refuses to expand jurisdiction. However, it notes that Morrison can investigate whether Olson had engaged in conspiracy with others (including Schmults and Dinkins) to obstruct the Judiciary Committee’s work.

May 20, 22, June 5, 1987: Morrison issues grand jury subpoenas to Olson, Schmults and Dinkins.

All three move to quash subpoenas on grounds that the IC law is unconstitutional.

July 20: Judge Aubrey Robinson of U.S. District Court for D.C. upholds statute and denies motion.

Olson, Schmults and Dinkins refuse to comply in order to appeal to D.C. Circuit of Court of Appeals. They are cited for contempt of court. Case is argued before Circuit panel on Sept. 16.

Jan. 22, 1988: A divided D.C. appeals court panel, in an opinion authored by Olson friend and Federal Society cohort Laurence Silberman, rules 2-1 that IC statute is unconstitutional.

Supreme Court grants expedited review, and case is argued on April 26, 1988.

June 29, 1988: Supreme Court rules 8-1, in Morrison v. Olson, that the IC statute is constitutional, reversing Circuit panel. Antonin Scalia is lone dissenter.

Aug. 26, 1988: Morrison announces result of IC investigation, saying it had reviewed the five areas of Olson’s testimony under question, considered carefully the requirements of perjury statutes, and found that while Olson’s testimony may have been “misleading,” it did not rise to the level of prosecutable perjury.

The results (see section on Olson’s testimony above):

I: Olson’s answer is “literally true” if one applies a very narrow reading of Seiberling’s question as asking whether the EPA was willing to provide all documents unconditionally (something Seiberling didn’t ask, incidentally). This was a position Burford never supported; her willingness to produce the documents was always conditional on their remaining secure and not public, but that was a condition the investigators were always willing to meet. Second, it is “literally true” (if obviously misleading) because no one from EPA itself had ever informed Olson that EPA was willing to produce the documents, since Olson only was made aware of this through subordinates like Larry Simms.

II. Again, Olson’s answer is “literally true” if not forthcoming in every regard. Burford had by Nov. 22, at least, agreed to invoke the privilege, even if she continued to believe it was a mistake and continued to argue that it was. During one of the November meetings, Olson testified, he had cornered Burford on whether or not she supported the president on this, and she said she did. This became the cornerstone of his claim that everyone was on board.

III. Olson’s answer about document production is “by far the most troubling aspect of his testimony.” Most notably, Olson’s answer, as well as his pre-appearance submissions, had omitted any reference to the Oct. 25, 1982 memo from Olson to President Reagan recommending he assert executive privilege over the EPA documents. This was, after all, the definitive document “that pertained to the advice” the department gave Reagan on this matter. As the report notes:

Olson, moreover, had a substantial apparent motive to conceal that document in March 1983. His memorandum contained at least two statements called into question by subsequent events. First, Olson advised the President that the documents suject to the executive privilege claim Olson was recommending contained no evidence of unlawful conduct by a government agency or government officials,” and it strongly implied that the documents did “not reflect misconduct of any sort by any administration officials.” Second, he stated that the Administrator of EPA concurred in the recommendation that executive privilege be asserted. While is impossible to prove that Olson knew either statement was false on Oct. 25, 1985 -- indeed, we find to the contrary -- both had been substantially undermined by March 10, 1983 [the date Olson testified].

Of course, to a prosecutor, not knowing these statements were false is reason not to prosecute Olson.

However, not knowing these statements were false (and nonetheless asserting to the President that they are true) is also a matter of competence and judgment. This may fall outside a prosecutor’s purview, but should not fall outside Congress’ or the public’s.

Ultimately, Morrison clears him of the charge, largely on the basis of Olson’s answer to Morrison’s question, “Why didn’t you bring up the Oct. 25 memo”?”

Olson: “I forgot.”

Morrison cannot find any evidence that he in fact had not forgotten.

However, WRT Olson’s answer to Rodino: “we found that answer disingenuous and misleading ... The impression conveyed by Olson’s claim that the Department tried to provide a complete response to the Committee’s request, save for ‘scraps of paper’ and ‘copies of cases,’ was woefully inaccurate ...”

IV. Olson’s answer -- “I’m not sure” -- flew in the face of the fact that a number of his pieces of advice on the civil suit were in fact in writing, which is why he later amended it to include, “I believe that some of it was.” Morrison excuses him on the basis of his amendment.

V. Morrison finds that Olson was perfectly truthful on this point, since he interpreted -- probably correctly -- as referring to any options papers prepared regarding OLC’s advice on executive privilege. Such options papers did not exist.

My assessment: The report bends over backward to be fair. It carefully considers perjury law, and at every opportunity it casts Olson’s testimony in the most generous light possible. This is probably admirable restraint when it comes to a prosecutor, and I must conclude that, considering the constraints placed on her by Meese, the only responsible course.

Morrison’s report in fact is noted for its “defensiveness,” largely due to the fact that it was completed more than five years after Olson’s testimony. And her defensiveness is appropriate; Olson for awhile made something of minor career out of presenting himself as a martyr to an out-of-control IC statute.

However, Morrison’s explanation makes clear that the lengthiness of her investigation was due to circumstances well out of her control. First there were jurisdictional disputes that held up her ability to call a grand jury; and more significantly, there were the lengthy court processes after Olson et al tried to fight their subpoenas.

I think it is also likely that Olson was pursuing a “run out the clock” strategy, since there is a five-year statute of limitations on perjury. The lengthy appeals through the Supreme Court in fact extended the case well beyond the five-year span, so that Morrison had to reach an agreement with Olson that would allow her to finish up the report within six months after the Supreme Court issued a decision.

However, it appears that this shortened time frame did not affect Morrison’s investigation substantially (she actually reported two months after the SC ruling). Her limitations were the product of Meese’s referral, not the time span.

While I think Bush deserves some credit for nominating Mukasey, he oughtn't to break his arm patting himself on the back. It also speaks volumes about the Bush administration's judgment that it even considered a man like Olson to be the nation's next Attorney General.