[Congressional Record (Bound Edition), Volume 147 (2001), Part 7]
[Senate]
[Pages 9396-9418]
[From the U.S. Government Publishing Office, www.gpo.gov]



  NOMINATION OF THEODORE BEVRY OLSON, TO BE SOLICITOR GENERAL OF THE 
                   UNITED STATES--MOTION TO DISCHARGE

  Mr. LOTT. Mr. President, pursuant to the provisions of S. Res. 8, I 
now move to discharge the Judiciary Committee of the nomination of Ted 
Olson, to be Solicitor General of the United States.
  The PRESIDING OFFICER. Under the provisions of S. Res. 8, the motion 
is limited to 4 hours of debate, to be equally divided between the two 
leaders.
  Mr. LOTT. Mr. President, I note that the chairman of the Judiciary 
Committee, Senator Hatch, is here and ready to proceed. Therefore, I 
yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, as you know, we have been trying to make 
sure that the Justice Department has its full complement of leaders 
because if there is a more important Department in this Government, I 
don't know which one it is. There may be some that would rate equally 
but that Department does more to help the people of this country than 
any other Department.
  One of the most important jobs in that Department is the Solicitor 
General's job. The Solicitor General is the attorney for the people. He 
is the attorney for the President. He is the attorney for the 
Department. He is the attorney who is to argue the constitutional 
issues. He is the attorney who really makes a difference in this 
country and who makes the primary arguments before the Supreme Court of 
the United States of America.
  In addition, he has a huge office with a lot of people working to 
make sure this country legally is on its toes.
  In the case of Ted Olson, I am very pleased that we are able to have 
this motion up at this time. I am pleased that we have colleagues with 
good faith on the other side who are willing to see that this is 
brought to a vote today because we should not hold up the nomination 
for the Solicitor General of the United States of America.
  We have had all kinds of Solicitors General. We have had some who 
have been very partisan but have been great Solicitors General, and we 
have had some who have hardly been partisan at all and have been weak 
Solicitors General. We have had some not very partisan at all who have 
been great Solicitors General. You would have to make an analysis 
yourself to determine how your own personal philosophy fits.
  But in terms of some great ones, there was Archibald Cox, who was 
never known for conservative politics. He was not very partisan by most 
Republicans' standards, but he turned out to be an excellent Solicitor 
General of the United States. We could go on and on.
  But let me just say this, that it is interesting to me that Ted Olson 
has the support of some of the leading attorneys and law professors in 
this country who have the reputation of being active Democrats.
  Let me just mention a few. And I really respect these gentlemen for 
being willing to come to bat for Ted Olson. Laurence Tribe, the 
attorney for former Vice President Gore, in Bush v. Gore, on March 5, 
2001, said:

       It surely cannot be that anyone who took that prevailing 
     view--

  He is referring to Bush v. Gore--

     and fought for it must on that account be opposed for the 
     position of Solicitor General. Because Ted Olson briefed and 
     argued his side of the case with intelligence, with insight, 
     and with integrity, his advocacy on the occasion of the 
     Florida election litigation, as profoundly as I disagree with 
     him on the merits, counts for me as a plus in this context, 
     not as a minus. If we set Bush v. Gore aside, what remains in 
     Ted's case is an undeniably distinguished career as an 
     obviously exceptional lawyer with an enormous breadth of 
     directly relevant experience.

  I have known Laurence Tribe for a long time. I have a great deal of 
respect for him. I do not always agree with him, but one time he asked 
me to review one of his books. Looking back on that review, I was a 
little tough on Larry Tribe to a degree. But I spent time reading his 
latest hornbook just this last week, read it through from beginning to 
end--I think it was something like 1,200 pages--it was very difficult 
reading, and I have to say I came away after reading that hornbook with 
a tremendous respect for the legal genius of Larry Tribe.
  Although I disagree with a number of his interpretations of 
constitutional law, there is no doubt about the genius and 
effectiveness of this man, and I think it is a tribute to him that he 
was willing to stand up for Ted Olson and write it in a letter.
  Walter Dellinger is the former Clinton Solicitor General. He is one 
of the great lawyers of this country. He is a liberal and some thought 
he was extremely partisan, although I questioned that personally, just 
like I question those who say Ted Olson is partisan. No question that 
Walter Dellinger is a very strong and positive Democrat, a very 
aggressive Democrat. But he also is a man of great intelligence and 
integrity.
  On February 5, 2001, Mr. Dellinger said that when Olson served in the 
Justice Department as the head of the Office of Legal Counsel, he ``was 
viewed as someone who brought considerable integrity to the 
decisionmaking.''
  Virtually everybody who worked with Ted Olson at the Office of Legal 
Counsel--in fact, all that I know of--said he was a man of integrity 
who called them the way he saw them, who abided by the law and did not 
allow partisan politics to enter into any thinking. There are two 
offices where partisan politics could work to the detriment of our 
country.
  One is the Office of Legal Counsel, which he handled with 
distinction, with ability, with fairness, in a nonpartisan way. The 
other is the Office of the Solicitor General, which I assert to this 
body he will handle in the same nonpartisan way. He will certainly try 
to do what is constitutionally sound and right. And he will represent 
the Congress of the United States in these

[[Page 9397]]

battles. He may not always agree with the Congress of the United States 
when we are wrong, but you can at least count on him doing what is 
right and trying to make the best analysis and do what he should.
  Now, Beth Nolan is a former Clinton White House counsel and Reagan 
Department of Justice, Office of Legal Counsel attorney. Beth is a 
considerable Democrat, and she is someone I respect. We have had our 
differences, but I have to say that she deserves respect. In a 
September 25, 1987, letter signed by other Department of Justice 
lawyers she had this to say:

       We all hold Mr. Olson in a very high professional and 
     personal regard because we believe he made his decisions with 
     integrity after long and hard reflection. We cannot recall a 
     single instance in which Mr. Olson compromised his integrity 
     to serve the expedience of the Reagan administration.

  That is high praise coming from Beth Nolan, a strong Democrat who has 
served both in the White House Counsel's office and at Justice in the 
office of Legal Counsel.
  One of the most esteemed first amendment lawyers in the country, a 
strong Democrat, one of the men I most respect with regard to first 
amendment interpretations and first amendment constitutional 
challenges, is Floyd Abrams--again, I submit, a liberal Democrat.
  On March 4, 2001, he had this to say about Ted Olson:

       I have known Ted since we worked together on a Supreme 
     Court case, Metro Media v. San Diego, 20 years ago. I have 
     always been impressed with his talent, his personal decency, 
     and his honor. He would serve with distinction as a Solicitor 
     General.

  This is one of the greatest lawyers in the country, a man of 
distinction himself who has great judgment, who is a leading trial 
lawyer in this country.
  And that is what Floyd Abrams had to say about Ted Olson.
  These are all Democrats. How about Harold Koh, former Clinton 
administration Assistant Secretary of State. On February 28, 2001, he 
had this to say:

       Ted Olson is a lawyer of extremely high professional 
     integrity. In all of my dealings with him I have seen him 
     display high moral character and a very deep commitment to 
     unholding the rule of law.

  That is high praise from a former Clinton administration high-level 
employee. All of these are Democrats, leading Democrats, some partisan 
Democrats, but who have found Ted Olson to be a man of honor and 
integrity.
  One of the greatest lawyers in the country is Robert Bennett, 
attorney for former President Clinton. Robert Bennett is known by 
virtually everybody in this body for having been an independent counsel 
himself, and having done his jobs with distinction. Nobody doubts he is 
one of the greatest lawyers in this country. Nobody doubts that the two 
Bennett brothers are personalities about as compelling as you can find.
  Well, Robert Bennett happens to be a Democrat, and a leading 
Democrat, one of the great attorneys in this country. And here is what 
the attorney for former President Clinton had to say on May 15, 2001:

       While I do not have any personal knowledge as to what role 
     if any Mr. Olson played in the Arkansas Project or the full 
     extent of his relationship with the American Spectator, what 
     I do know is that Ted Olson is a truth teller and you can 
     rely on his representations regarding these matters. He is a 
     man of great personal integrity and credibility and should be 
     confirmed.

  I am submitting to this body that people of good will, that people 
who want good government, people who want the best of the best in these 
positions at the Justice Department, ought to vote for Ted Olson 
regardless of their political affiliation, regardless of the fact that 
Ted Olson handled Bush v. Gore and won both cases before the Supreme 
Court--something that some of my colleagues bitterly resent. They 
should vote for him regardless of the fact that, yes, he has been a 
strong Republican--some think too partisan of a Republican. But he has 
a reputation of being a person who calls them as he sees them, an 
honest man of integrity. This is backed up by these wonderful 
Democratic leaders at the legal bar, Laurence Tribe, Walter Dellinger, 
Beth Nolan, Floyd Abrams, Harold Koh, Robert Bennett, just to mention 
six terrifically strong Democrats. If anybody wants to know, they ought 
to listen to people in the other party who have every reason to be 
partisan on nominations in some ways, but who are not allowing 
partisanship to enter into hurting the career or hurting the 
opportunity of Ted Olson to serve as Solicitor General.
  I personally know Ted Olson. I have known him for many years. I have 
seen him courageously take on client after client across the 
ideological spectrum and do a great job in each case for his clients. 
This is an exceptional lawyer. He is one of the exceptional people in 
our country. He has the capacity and the ability to be a great, and I 
repeat great, Solicitor General of the United States. He is respected 
by the Supreme Court before whom he has appeared at least 15 times.
  And for those who might not remember, he was the attorney for George 
W. Bush in Bush v. Gore, and made two arguments before the Supreme 
Court, both of which he handled with dexterity, with skill, with 
decency, and with intelligence.
  I have to say he deserves this job, he deserves not having people 
play politics with this position. In my opinion, he will make a great 
Solicitor General of the United States. Let me just dispel some of the 
allegations surrounding this nomination and explain why I believe 
further delay is unwarranted.
  First, there have been allegations that Mr. Olson has misled the 
committee concerning his involvement in something called the Arkansas 
Project and his representation of David Hale. Let me say that I 
listened to my colleagues on the committee when the Washington Post 
article first appeared, and delayed a vote, against my better judgment 
actually, until we weighed the allegations because it was fair to do 
so.
  My colleagues wanted that, they deserved that, and we delayed it so 
we could weigh those allegations. Then I took several days and 
extensively reviewed the testimony during the hearings, his answers to 
written questions, and his subsequent letter. I am convinced that those 
responses showed no inconsistencies or evidence that Mr. Olson misled 
or was less than truthful to the committee anyway. Rather, they show 
him to be forthright and honorable.
  Although I have not seen any discrepancies or inconsistencies in Mr. 
Olson's testimony and answers, I have tried to respect the concerns of 
other members of this committee and joined the distinguished ranking 
Democratic member in looking further into this matter and asking 
further clarifying questions from the Office of the Independent 
Counsel. We look into some insinuations against Mr. Olson concerning 
his involvement with the Arkansas Project and his legal representation 
of David Hale.
  In order to verify Mr. Olson's statements, the committee has had 
access to a great volume of materials, including all relevant portions 
of the Shaheen Report that could be provided by law, letters from key 
individuals involved with the Arkansas Project, and just yesterday, at 
Senator Leahy's request, a copy of David Hale's testimony at another 
trial, and more information from the Office of Independent Counsel. 
These together simply confirm Mr. Olson's statements and show that 
there is no need for additional investigations.
  Now, I would like to relate some of my findings in investigating the 
record and alleged inconsistencies. With regard to the Arkansas 
Project, Mr. Olson repeatedly stated that he learned about the project 
while he was a member of the board of directors and that he did not 
know about it prior to his service on that board. He also consistently 
stated that he learned of the project in 1997. In an early response he 
stated that he became aware of it in ``1998, I believe.'' He later 
clarified that it was in 1997 and has consistently maintained that he 
learned of the project in 1997. Each of the quotations used by Senator 
Leahy in his so-called ``summary of discrepancies'' confirms this fact 
and does not provide, despite the title of the document, any real 
discrepancies in Mr. Olson's testimony.

[[Page 9398]]

  Key individuals intimately involved with the Arkansas Project have 
written letters to the committee confirming Mr. Olson's account of 
events. These individuals include James Ring Adams, Steven Boynton, 
Douglas Cox, Terry Eastland, David Henderson, Michael Horowitz, 
Wladyslaw Pleszczyn-
ski, and R. Emmett Tyrell.
  From their different positions, each person corroborates the fact 
that Mr. Olson was not involved with the origination or management of 
the Arkansas Project. R. Emmett Tyrell, the editor-in-chief of the 
magazine, stated unequivocally that Mr. Olson's statements with regard 
to his involvement with the project are ``accurate and thus truthful.''
  Terry Eastland, former publisher of the American Spectator, conducted 
a review of the project and stated he ``found no evidence that Mr. 
Olson was involved in the project's creation or its conduct.'' Other 
letters make similar statements about Mr. Olson's lack of involvement 
before 1997. All of them are consistent with his testimony, and they 
are not rebutted by any other credible evidence.
  Mr. President, let me summarize for my colleagues. We have Mr. 
Olson's sworn testimony along with the statements of key players in the 
project and numerous letters by Democrats and Republicans who praise 
Mr. Olson's integrity and honesty, against the luke-warm allegations of 
one former staffer who has recently backed away from his remarks. Even 
if Mr. Brock's factual allegations were true, they do not contradict 
Mr. Olson's testimony.
  Now the second possible allegation against Mr. Olson is that, 
contrary to his testimony, he might have received payment for his 
representation of David Hale. Mr. Olson has repeatedly answered 
questions about this representation. He testified that he received no 
money for this representation, although he had expected to be paid.
  Then in a letter of May 9, 2001, in response to further questions, he 
again stated that he received no payments for his representation of 
David Hale. He wrote, ``Neither I nor my firm has been compensated by 
any other person or entity for those services--although I am not aware 
of any legal prohibition against another person or entity making such a 
payment.'' He have this report and I urge my colleagues to read it. I 
have extra copies of this and other recent material with me, if any 
colleague cares to further review it.
  Now, I have seen no, let me repeat, no evidence suggesting this 
testimony is not accurate. Mr. Olson responded to questions about these 
issues at his hearing and in three sets of written questions--each time 
his answers have been clear and consistent.
  But you don't just have to take Mr. Olson's word for it. His answers 
are clearly supported by the conclusions reached by Mr. Shaheen and 
reviewed independently by two respected retired federal judges. Under a 
process jointly approved by the Independent Counsel and Attorney 
General Janet Reno, Mr. Shaheen was appointed to review the allegations 
concerning alleged payments to David Hale.
  In order to get all the facts, Mr. Shaheen was given authority to 
utilize a grand jury to compel production of evidence and testimony. In 
addition, another important element of this independent review process 
was that the results of the investigation were to receive a final 
review--not by the Independent Counsel or Attorney General Reno--but by 
two former federal judges Arlin Adams and Charles Renfrew. At the 
conclusion of their review, they issued a statement on July 27, 1999, 
in which they concurred with the conclusions of the Shaheen Report that 
``many of the allegations, suggestions and insinuations regarding the 
tendering and receipt of things of value were shown to be 
unsubstantiated or, in some cases, untrue.''
  And if the Shaheen Report was not sufficient, Senator Leahy requested 
a transcript of David Hale's testimony at the trial of Jim Guy Tucker 
and Jim and Susan McDougal, apparently because of accounts of that 
testimony in Joe Conason and Gene Lyons' book, ``The Hunting of the 
President.'' The Office of the Independent Counsel has graciously made 
David Hale's trial transcript available to the committee in response to 
Senator Leahy's May 14, 2001 letter. A review of the transcript clearly 
shows further that Mr. Olson's testimony was accurate.
  In the transcript, David Hale testified that Ted Olson was retained 
to represent him before a congressional committee. When asked, ``Who 
pays Mr. Olson to represent you?'' Mr. Hale replied, ``I do.'' Mr. Hale 
did not say that he or anyone on his behalf actually paid Mr. Olson.
  The transcript of the trial is fully consistent with Mr. Olson's 
testimony regarding the Hale representation--namely that he never 
received payment for the representation, that Mr. Hale intended to pay 
for these services, and that no one else was responsible for the 
payments. Mr. Hale also testified that he first contacted Mr. Olson in 
1993 in connection with a possible congressional subpoena, and that 
Olson did represent him in 1995-1996. Mr. Olson wrote in his letter 
(May 9, 2001) that he was ``ultimately engaged by Mr. Hale and 
undertook that representation sometime in late 1995 or early 1996.''
  Thus, with regard to David Hale, there is no evidence from any source 
that Mr. Olson received payment for this representation. Mr. Olson's 
testimony, David Hale's testimony, the Independent Counsel report, and 
review of the matter by two former federal judges all confirm that Mr. 
Olson received no payment for his brief representation of David Hale. I 
should also note that we send further questions on this matter to the 
Office of the Independent Counsel, whose responses have been completely 
consistent with Mr. Olson's testimony.
  Again, let me say that I appreciated and respected the need for 
members of this committee to satisfy themselves about the integrity of 
executive branch nominees. That is why I had delayed an initial 
committee vote. The committee had ample opportunity to verify the 
statements of Mr. Olson--no discrepancies have appeared, nor is there 
any credible evidence to refute any part of his testimony.
  We have the statements of individuals involved with the Arkansas 
project. Staff members of the committee have been able to view the 
Shaheen report and the trial testimony of David Hale. I know that 
internal information has been requested from the American Spectator 
magazine, but I am concerned that such demands may tread on precious 
first amendment prerogatives of the press that we should all be careful 
to protect, even though it frustrates all of us from time to time. And 
I know that Democratic staff have interviewed Mr. Brock.
  I believe that the extensive and decisive record before us shows that 
Mr. Olson has been truthful and forthright on all counts.
  The facts and conclusions I have just discussed--that there are no 
discrepancies between Ted Olson's statements and Senator Leahy's 
allegations--beg the question: What is all this fuss really about?
  Perhaps it is because some may believe that Mr. Olson is too partisan 
to serve as the Solicitor General. Nothing could be further from the 
truth. Ted Olson's career has been as broad as it has been deep. Mr. 
Olson has advocated for a wide variety of organizations and has 
associated with people of many different political ideologies.
  While it is true that Mr. Olson has performed legal work for the 
conservative American Spectator, to focus myopically on that is to 
ignore Mr. Olson's distinguished work for many other media 
organizations including the New York Times, the Washington Post, Times-
Mirror, the Los Angeles Times, Dow Jones, LA magazine, NBC, ABC, CNN, 
Fox, Time-Warner, Newsday, Metromedia, the Wall Street Journal, and 
Newsweek. What does this list show about Ted Olson? Is this the kind of 
clientele that would seek after a single-issue zealot? No way. This 
list demonstrates clearly that smart people with a variety of views on 
public matters turn to--and trust--Ted Olson.
  Similarly, it is possible to pay too much attention to one person's 
apparent dissonant opinion when there is a chorus of other harmonized 
voices.

[[Page 9399]]

Now, I have to concede that Ted Olson's supporters include a lot of 
well-known partisans.
  For example, President Clinton's lawyer, Bob Bennett, said that ``Ted 
Olson is a truth-teller'' and he is ``confident that [Ted Olson] will 
obey and enforce the law with skill, integrity and impartiality.'' A 
similar sentiment was expressed by President Clinton's White House 
Counsel, Beth Nolan. And Vice President Al Gore's lawyer, Laurence 
Tribe, has publically announced his support for Ted Olson's 
confirmation as Solicitor General. Floyd Abrams, who has known Ted 
Olson for 20 years, and who is no right-wing conspirator, said he has 
``always been impressed with [Ted Olson's] talent, his personal decency 
and his honor.'' President Clinton's Assistant Secretary of State for 
Democracy, Human Rights and Labor, Harold Koh, called Ted Olson ``a 
lawyer of extremely high professional integrity.'' And William Webster 
said Ted Olson is ``honest and trustworthy and he has my full trust.''
  These names demonstrate that Ted Olson's experience, character and 
associations have a tremendous breadth and depth. It is time for this 
body to do the right thing and favorably vote to confirm Mr. Olson as 
the Solicitor General.
  Mr. President, I would also like to make a few more brief comments on 
Mr. Olson's nomination to set the record straight.
  First, there has been repeated insinuation and accusation that Mr. 
Olson has misled the committee concerning his involvement with the so-
called Arkansas Project and his representation of David Hale.
  I, responding to concerns by some Democrats, listened and delayed the 
vote May 10 until the committee reviewed the record and weighed the 
allegations.
  Since the Washington Post story broke, I and my staff have 
extensively reviewed Mr. Olson's testimony during his hearing, his 
answers to written questions, and his subsequent letters. I am 
convinced that these responses show no inconsistencies or evidence that 
Mr. Olson misled or was less than truthful to the committee in any way. 
Rather they show him to be forthright and honest.
   In order to verify Mr. Olson's statements, the committee has had 
access to a great volume of materials, including all relevant portions 
of the Shaheen Report that could be provided by law, letters from key 
individuals involved with the Arkansas Project, and at Senator Leahy's 
request, a copy of David Hale's testimony at another trial.
  We have had access to more material from the Office of the 
Independent Counsel, a number of questions that Senator Leahy and I 
jointly asked that office and have received the responses. All of this 
material, and the overwhelming evidence already on the record, continue 
to support Mr. Olson's veracity and complete candor before the 
committee. There are none, nor has there been, any specific evidence 
supporting allegations against Mr. Olson.
  Key individuals intimately involved with the Arkansas Project have 
written letters to the committee confirming Mr. Olson's account of 
events. A host of respected and distinguished lawyers, judges, private 
and public figures who have worked with Ted Olson have written in and/
or called the committee with their support for Mr. Olson's nomination 
and have vouched for his integrity and candor. These include the two 
respected attorney's who argued against Mr. Olson in each of the two 
Supreme Court arguments in Bush v. Gore.
  From their different positions, each person corroborates the fact 
that Mr. Olson as not involved with the origination or management of 
the Arkansas Project. R. Emmett Tyrell, the editor-in-chief of the 
magazine, stated unequivocally that Mr. Olson's statements with regard 
to his involvement with the project are ``accurate and thus truthful.'' 
Terry Eastland, former publisher of the American Spectator, conducted a 
review of the project and stated he ``found no evidence that Mr. Olson 
was involved in the project's creation or its conduct.''
  The only evidence that appears to have any possible conflict with Mr. 
Olson's sworn testimony and the written communications of the key 
players in the Arkansas Project comes from David Brock, a former writer 
for the American Spectator, who in last Wednesday's New York Times, 
appeared to tone down his original account, saying, ``It was my 
understanding that all of the pieces dating back to 1994 that dealt 
with investigating scandals pertaining to the Clintons, particularly 
those that related to his time in Arkansas, were all under the Arkansas 
Project.'' He did not say that he was sure, or that Mr. Olson knew 
about the project. Indeed, on a television program last Thursday 
evening, Mr. Brock said he had no specific recollection about speaking 
specifically about the Arkansas Project in the presence of Mr. Olson.
  Moreover, Mr. Brock apparently suggested to one paper that James Ring 
Adams would have a similar view. But Mr. Adams, one of the lead writers 
for the project, wrote the committee that ``Mr. Olson had absolutely no 
role in guiding my development of stories for the magazine or in 
managing my work.''
  So, we have Mr. Olson's sworn testimony along with the statements of 
key players in the project and numerous letters by Democrats and 
Republicans who praise Mr. Olson's integrity and honesty, against the 
luke-warm allegations of one former staffer who has recently backed 
away from his remarks. Even if Mr. Brock's factual allegations were 
true, they do not contradict Mr. Olson's testimony.
  The other allegation against Mr. Olson is that, contrary to his 
testimony, he might have received payment for his representation of 
David Hale. He testified that he received no money for this 
representation, although he had expected to be paid.
  There is no evidence suggesting this testimony is not accurate. Mr. 
Olson responded to questions about these issues at his hearing and in 
three sets of written questions--each time his answers have been clear 
and consistent.
  His answers are clearly supported by the conclusions reached by Mr. 
Shaheen and reviewed independently by two respected retired federal 
judges. Under a process jointly approved by the Independent Counsel and 
Attorney General Janet Reno, Mr. Shaheen was appointed to review the 
allegations concerning alleged payments to David Hale. At the 
conclusion of their review, they issued a statement noting ``many of 
the allegations, suggestions and insinuations regarding the tendering 
and receipt of things of value were shown to be unsubstantiated or, in 
some cases, untrue.'' I released the redacted portion of this Shaheen 
report which relates to Mr. Olson to the public. Read the report and 
its conclusions--and the Independent Counsel's responses to the 
numerous questions we have sent him regarding the report--it speaks for 
itself. This is not even a case revolving on the definition of what 
``is'' is. There simply is no ``there'' there.
  As I have noted before, we are at a period where we need to rebut the 
public's beliefs that we only engage in politics and don't care about 
the merits of nominee qualifications. We need to gain the public's 
trust in our government back. I am deeply concerned that what has been 
happening here might appear to be an effort to paint Mr. Olson's 
occasional political involvement as the entirety of his career and 
character, and as reported in the press, possibly as retribution for 
the man who argued and won the Supreme Court case in Bush v. Gore.
  Now, I don't think that that is true. I know my colleagues and 
respect their views. But, I hope that we can begin debating the merits 
of this nomination and take all of the support and testimony on this 
man's obvious and overwhelming qualifications and his high integrity 
into account as we determine our votes for his confirmation.
  Mr. President, I urge my colleagues to judge the record. Judge the 
man for his qualifications and integrity. And I urge my colleagues to 
listen to Lawrence Tribe, to David Boies, to read the Shaheen report 
and responses from the Office of the Independent Counsel, to listen to 
Robert Bennett--President

[[Page 9400]]

Clinton's lawyer, to everyone who has worked with and known Ted Olson. 
I urge you to vote to confirm our next Solicitor General.
  Mr. President, let me say a few words about Mr. Olson's 
qualifications.
  Ted Olson is one of the most qualified people ever nominated to be 
Solicitor General. He has had an impressive 35-year career as a 
lawyer--including four years as the Assistant Attorney General in 
charge of the Justice Department's Office of Legal Policy under Ronald 
Reagan.
  The job of the Solicitor General is to make litigation policy 
decisions. The Solicitor General represents the United States in all 
cases before the United States Supreme Court, and it is up to the 
Solicitor General to approve all appeals taken by the United States 
from adverse decisions in the lower federal courts. It is important to 
have a skillful and competent advocate in that position.
  Ted Olson has argued 15 cases in the U.S. Supreme Court. For most 
lawyers, a single Supreme Court argument would be considered the zenith 
of their career.
  Ted Olson has a reputation for considering all viewpoints before 
making decisions. Walter Dellinger, who served as acting Solicitor 
General under President Clinton, told the Washington Post that, ``If 
Ted runs the SG's office the way he ran OLC, he will give deference to 
views other than his own in making his final decision.''
  Ted Olson's Supreme Court arguments concerned issues of great 
importance to our country, including limits on excessive jury verdicts, 
the effect of statutes of limitations, caps on punitive damages, the 
meaning of the Federal False Claims Act, racial and gender 
classifications, and whether telecommunications companies must provide 
surveillance capabilities to law enforcement agencies.
  In addition to his role representing clients, Ted Olson has also 
worked to reform our civil justice system by writing and speaking on 
various topics, and he helped advise the government of Ukraine on 
drafting a new Constitution in the mid-1990's.
  Ted Olson also has superb academic qualifications. He graduated from 
the Boalt Hall School of Law at the University of California at 
Berkeley, where he earned a spot in the prestigious Order of the Coif 
and was a member of the law review.
  I have no doubt that Ted Olson will prove to be one of the best 
Solicitor Generals our country has ever had. Given the extraordinary 
quality of the people who have held that post, this is no small 
compliment.
  With that, I yield the floor and suggest the absence of quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Fitzgerald). Without objection, it is so 
ordered.
  The Senator from Vermont.
  Mr. LEAHY. I thank the Chair. Mr. President, I thank the Senator from 
Utah, the chairman of the Judiciary Committee.
  If I can have the chairman's attention just for a moment, I assume we 
are not looking for specific times and speakers on this matter but will 
go back and forth in the usual fashion as people arrive. Is that 
agreeable?
  Mr. HATCH. That is agreeable. It is my understanding we have 4 hours 
equally divided. Mr. President, how much time have I used?
  The PRESIDING OFFICER. The Senator has used 29 minutes.
  Mr. LEAHY. Mr. President, for anybody who wants to speak, following 
the normal unofficial procedure, as people are available, we can go 
back and forth, side to side.
  I note that I have no objection to proceeding to the motion to 
discharge the nomination of Ted Olson to be Solicitor General. I 
mention this because I want Senators to understand. We had a divided 
vote in the committee, and with a divided vote in the committee, 
because of the procedures of the Senate, I am sure we could have either 
bottled it up for some time in committee or for some time here. I do 
not want to do that. I think there should be a vote one way or the 
other. We have had too many examples in the past few years of 
nominations being bottled up that way.
  On this one, I have concerns about Mr. Olson, but I am agreeable to 
having a vote up or down on his nomination. In fact, I say to my 
friend, the distinguished chairman of the Senate Judiciary Committee, 
that we also have before us the nominations of Mr. Dinh to be head of 
the Office of Policy Development of the Justice Department and Mr. 
Chertoff to be head of the Justice Department's Criminal Division. I am 
perfectly agreeable to rollcall votes on them, too, and will, to notify 
Senators, vote for them as I did in committee. Of course, that is 
something that has to be scheduled.
  Mr. HATCH. Will the Senator yield?
  Mr. LEAHY. Yes.
  Mr. HATCH. I, for one, am grateful because they are good people. I 
missed what the Senator said. He wants to have a vote?
  Mr. LEAHY. I want to have a vote on all three of these. I realize 
that is entirely up to the body. I am perfectly willing to have votes 
on all three of them. I point out, with respect to Mr. Dinh and Mr. 
Chertoff, I voted for them in committee, even though, as everybody 
knows, they are very conservative Republicans and were heavily involved 
in a congressional investigation of the former President and of matters 
in Arkansas.
  Mr. HATCH. If the Senator will yield, I do not mean to keep 
interrupting, I want to express my gratitude that he is willing to go 
ahead with this and the Senate can vote on these nominees because I 
want to get that Justice Department--and I know the distinguished 
Senator from Vermont does also--up and running in the fullest sense we 
can. That is my only interest in this, other than I do like all three 
of these nominees. I thank my colleague. Forgive me for interrupting.
  Mr. LEAHY. I appreciate the compliment.
  Mr. Dinh and Mr. Chertoff were heavily involved in what I thought was 
a misguided investigation, not by them but by Members of Congress who 
conducted it against former President Clinton and others in Arkansas. 
However, I believe they followed the directions of Members of Congress, 
many of whom are no longer here, for a number of reasons. I will vote 
for them and urge their confirmation when the time comes.
  I mention this because there seems to be some in the public, some 
among what I call the more conservative editorialists, who think there 
is going to be some kind of payback on the Democrats' part for the 
number of nominees who were held up during the Clinton administration 
by the Republican majority. I think it makes far more sense to look at 
nominations one by one on the merits.
  There is no question if the roles were reversed, if somebody of Mr. 
Dinh's and Mr. Chertoff's background had been appointed by the last 
administration following their investigations of Republican Presidents 
and my understanding and what I have seen in the last few years, they 
would have been held up. I do not believe in doing that.
  I told Attorney General Ashcroft--in fact, I told him earlier today-- 
we intend to move these forward. We are moving forward most of the 
nominations in the Department of Justice a lot faster than they were 4 
years ago in the Clinton administration by the same Senate but under 
different control.
  I hope this may be an indication that things will move forward on 
their merits and not on partisanship. I urge all Senators who wish to 
debate to come to the floor without delay and participate.
  After the motion to discharge and proceed to the nomination, I expect 
the Senate will proceed to vote promptly on the Olson nomination. I 
know Senator Lott and Senator Daschle have been working toward that 
goal. I agree with them on it.
  I will, however, express, as every Senator has a right to express his 
or her feelings towards or against each of these three nomination 
nominees, why I will vote against Ted Olson.

[[Page 9401]]

  The Solicitor General fills a unique position in our Government. The 
Solicitor General is not merely another legal advocate whose mission is 
to advance the narrow interests of a client or merely another advocate 
of the President's policies. The President has people appointed on his 
staff or in his Cabinet to advance his policies. That is absolutely 
right. That is the way it should be. Whoever is President should have 
somebody who can advance his positions no matter whether they are 
partisan or not, and there are positions provided--in fact, hundreds of 
millions of dollars' worth of positions are provided to the President 
to do that.
  The Solicitor General is different. The Solicitor General is not 
there to advance the partisan position of anybody, including somebody 
who is President. The Solicitor General is there to advance the 
interests of the United States of America, of all of us--Republican, 
Democrat, or Independent.
  The Solicitor General must use his or her legal skills and judgments 
to higher purposes on behalf of the laws and the rights of all the 
people of the United States.
  The Solicitor General does not advance a Republican or Democratic or 
Independent position. The Solicitor General advances the positions of 
the United States of America. In fact, at his hearing, Mr. Olson 
acknowledged--and I will use his words:

       The Solicitor General holds a unique position in our 
     government in that he has important responsibilities to all 
     three branches of our government. . . . And he is considered 
     an officer of the Supreme Court in that he regularly and with 
     scrupulous honesty must present to the Court arguments that 
     are carefully considered and mindful of the Court's role, 
     duty, and limited resources. As the most consistent advocate 
     before the Supreme Court, the Solicitor General and the 
     lawyers in that office have a special obligation to inform 
     the Court honestly and openly. The Solicitor General must be 
     an advocate, but he must take special care that the positions 
     he advances before the Court are fairly presented. As 
     Professor Drew Days said to this committee during his 
     confirmation hearing 8 years ago, the Solicitor General has a 
     duty towards the Supreme Court of ``Absolute candor and fair 
     dealing.''

  Those words of Ted Olson's are words that I totally agree with. He 
has stated the position of the Solicitor General. He has stated it 
accurately. We must look at his record to see, having talked the talk, 
whether he walked the walk.
  The Senate must carefully review nominations to the position of 
Solicitor General to ensure the highest levels of independence and 
integrity, as well as legal skills. Indeed, the Solicitor General is 
the only government official who must be, according to the statute, 
``learned in the law.'' We appoint a lot of people, we confirm a lot of 
people, but nothing in the law says they have to be ``learned in the 
law,'' but for the Solicitor General it says that. The Solicitor 
General must argue with intellectual honesty before the Supreme Court 
and represent the interests of the Government and the American people 
for the long term, and not just with an eye to short-term political 
gain.
  The Senate must determine whether a nominee to the position of 
Solicitor General understands and is suited to this extraordinary role.
  It is with the importance of this position in mind that I approached 
the nomination of Ted Olson to serve as Solicitor General of the United 
States. From my initial meeting with him in advance of the April 5, 
2001, hearing and thereafter, I have been assessing this nomination 
against the responsibilities of that important office.
  At the outset, I raised with Mr. Olson my concern that his sharp 
partisanship over the last several years might not be something that he 
could leave behind. After review of his testimony both orally and in 
answers to written questions, I have become doubly concerned that Mr. 
Olson has not shown a willingness or ability to be sufficiently candid 
and forthcoming with the Senate so that I would have confidence in his 
abilities to carry out the responsibilities of the Solicitor General 
and be the voice of the United States before the United States Supreme 
Court. In addition, I am concerned about other matters in his 
background.
  I will lay out in a much more lengthy statement for the Record, my 
concerns, but let me talk more briefly now about my concerns about Mr. 
Olson's candor before the committee about his involvement with the 
American Spectator and the Arkansas Project. His initial responses to 
my questions at his hearing prompted concern that the committee might 
not have heard a candid and complete accounting from Mr. Olson.
  Rather than respond directly and say all that he did do in connection 
with those matters, Mr. Olson chose to respond by misdirection and say 
what he did not do. Frankly, in this case, and under the questions he 
was asked, there is a world of difference between what he did not do 
and what he did do. He initially described his role as extremely 
limited as a member of the board of directors of the American Spectator 
Educational Foundation and implied that he was involved only after the 
fact, when that board conducted a financial audit and terminated the 
Arkansas Project activities in 1998.
  Mr. Olson has modified his answers over time, his recollection has 
changed, and he has conceded additional knowledge and involvement. His 
initial minimizing of his role appears not to be consistent with the 
whole story. Because his responses over time left significant questions 
and because of press accounts that contradicted the minimized role to 
which he initially admitted, I wanted to work with Senator Hatch before 
the Judiciary Committee voted on this nomination to have the committee 
perform the bipartisan factual inquiry needed to set forth the facts 
and resolve all questions and concerns about Mr. Olson's answers.
  I wanted to have us do the bipartisan fact finding that we always do 
when such issues come up.
  Indeed, Senator Hatch postponed one committee vote on Mr. Olson's 
nomination on May 10 and admitted that ``some legitimate questions'' 
have arisen and that ``legitimate issues'' were involved. He said that 
after an article in the Washington Post indicated that Mr. Olson's role 
at American Spectator and the activities of the Arkansas Project were 
more than just as a member of the board of directors in 1998 to which a 
financial audit was provided.
  My friend from Utah did not agree to that limited inquiry before the 
committee voted on Mr. Olson's nomination, but with the constructive 
assistance of the leaders and their staff, we were able to make 
progress over the last week.
  Let me describe just a few of the discrepancies in Mr. Olson's 
evolving statements to this committee. These are discrepancies that 
give me pause.
  First, Mr. Olson has minimized his knowledge of the Arkansas Project 
and its activities through--well, word games and definitional ploys. At 
the hearing, I asked him the direct question: ``Were you involved in 
the so-called Arkansas Project at any time?'' Mr. Olson responded by 
saying what he did not do, and with reference to his membership on the 
board of directors:

       As a member of the board of directors of the American 
     Spectator, I became aware of that. It has been alleged that I 
     was somehow involved in that so-called project. I was not 
     involved in the project in its origin or its management. . . 
     . I was on the board of the American Spectator later on when 
     the allegations about the project were simply that it did 
     exist.

  A carefully crafted answer, like somebody spoiling or somebody 
maneuvering a kayak through the rocks in a whitewater rapids.
  Over the past several weeks and several rounds of questions, Mr. 
Olson has expanded his initial response to admit that he and his firm 
provided legal services in connection with the matter, that he had 
discussions in social settings with those working on Arkansas Project 
matters, and that he himself authored articles for the magazine paid 
for out of Scaife's special Arkansas Project fund.
  Mr. Olson and his supporters then began to engage in a word game over 
what the meaning of ``Arkansas Project'' is. His law partner Douglas 
Cox told the Post that Olson testified that he, ``did not know there 
was this special fund set up by Scaife to finance this Arkansas fact 
work.''
  That might have explained Mr. Olson's testimony if he had said that 
at

[[Page 9402]]

the time he was writing the articles and giving legal advice and 
talking about these matters with the staff, he had been unaware that 
those conversations were in connection with what came to be known as 
the Arkansas Project. In other words, writing and giving legal advice 
and talking about it, he didn't know what it was for. I think he is far 
too good a lawyer for that. But that is not what Mr. Olson testified. 
In fact, he admitted that he became aware of the Arkansas Project at 
least by 1998, and then changed that testimony to sometime in 1997.
  He said he was a member of the board that received an audit of the 
Scaife funds. So by 2001, his knowledge of the Arkansas Project and the 
funding by Scaife was undeniable.
  Second, evidence uncovered during the committee's limited bipartisan 
inquiry following the committee vote, raises serious question about 
whether Mr. Olson accurately denied any role in the ``origin'' of the 
Arkansas Project by failing to respond correctly to direct questions 
about a meeting in his law office held in late December, 1993 when this 
project was getting organized. Not in 2001 but 1993.
  Third, Mr. Olson has apparently downplayed his involvement in the 
development and direction of Arkansas Project stories, perhaps to avoid 
any inconsistency with his initial representation to the committee that 
he was not involved in the management of this project.
  According to a published report in the Washington Post on May 20, 
2001, the report to which Senator Hatch referred when he indicated that 
``legitimate questions'' had been raised, David Brock told Post 
reporters that ``Olson attended a number of dinner meetings at the home 
of R. Emmett Tyrrell, Jr., president and chairman of the Spectator, 
which were explicitly brainstorming sessions about the Arkansas 
Project.
  While Mr. Olson refused to respond to this allegation, his law 
partner, Douglas Cox, who worked on the Spectator account, conceded 
that Olson attended such dinners, but that ``did not mean that he was 
aware of the scope of the Arkansas Project and the Scaife funding.''
  David Brock has also indicated that Mr. Olson was ``directly involved 
in the Arkansas Project, participating in discussions about possible 
stories and advising the magazine whether to publish one of its most 
controversial stories, about the death of Clinton White House deputy 
counsel Vincent Foster.'' According to the account in the Post, Mr. 
Olson told Mr. Brock that, ``while he didn't place any stock in the 
piece, it was worth publishing because the role of the Spectator was to 
write Clinton scandal stories in hopes of `shaking scandals loose.' ''
  That is an interesting position for a lawyer to take: Print a story 
you know not to be true, hoping that by printing untruths you will 
somehow bring forward truths. That is not what I was taught in law 
school, certainly not in our legal ethics courses.
  In his response to Senator Hatch, Mr. Olson did not deny Mr. Brock's 
account head on.
  Instead, he wrote that he told Mr. Brock that the article did not 
appear to be libelous or to raise any legal issues that would preclude 
its publication, and that he was not going to tell the editor-in-chief 
what should appear in the magazine.
  The Washington Post also reported that others said that project story 
ideas, legal issues involving the stories, and other directly related 
matters were discussed with Mr. Olson by staff members and at dinner 
parties of Spectator staff and board members. The reaction from Mr. 
Olson's supporters was swift. On May 15, 2001, Chairman Hatch shared 
with the committee a letter he obtained from the two men quoted denying 
the specific words in the Post story but not denying that they talked 
to the Post reporters.
  In a blatant effort to undermine Mr. Brock's powerful, first hand 
recollection of Mr. Olson's participation in and contributions to the 
activities of the Arkansas Project, Mr. Tyrrell also submitted a 
statement that Mr. Brock was not a part of the Arkansas Project.
  Mr. Brock, in reply, submitted strong contradictory evidence to the 
Tyrrell statement and supplied the committee with multiple Arkansas 
Project expense reports, expense reports, I might note, which remain 
unrefuted and which Mr. Brock states, ``clearly show that I was 
reimbursed thousands of dollars by the Project for travel, office 
supplies, postage, and the like.''
  Taken as a whole, Mr. Olson was clearly involved and participating 
both professionally and socially in the work of the American Spectator 
and its Arkansas Project. There is absolutely nothing illegal about 
this involvement and participation, which makes me wonder, why not be 
forthcoming and honest about it? But it shows a larger role in these 
activities than Mr. Olson initially portrayed.
  Mr. Olson also minimized his role in the Arkansas Project and the 
American Spectator by failing to give complete information about the 
amount of remuneration he has received for his activities on their 
behalf when he was first asked. He told us on April 19 that he was paid 
from $500 to $1,000 for his articles that appeared in the American 
Spectator magazine. Yet, we find out in the Washington Post on May 10 
that his firm was paid over $8,000 for work that was used in just one 
of those articles.
  In addition, the Post reported that over $14,000 was paid to Mr. 
Olson's law firm and attributed to the Arkansas Project.
  When he was asked during his hearing about an article he had 
coauthored that was published under the pseudonym--I want to make sure 
I get this right--``Solitary, Poor, Nasty, Brutish and Short'' in the 
magazine he did not indicate that ``the magazine hired [his] firm to 
prepare'' such materials and to perform legal research on the 
theoretical criminal exposure of the President and Mrs. Clinton based 
on press accounts of their conduct. I, for one, thought Mr. Olson had 
defended his writings as matters of personal first amendment political 
expression, an absolute right that he and all of us have. Certainly, I 
had no idea from his testimony at his confirmation hearing that this 
article was part of his and his firm's ongoing legal representation of 
American Spectator Educational Foundation, that it was a commissioned 
piece of legal writing, paid for by a grant from conservative 
billionaire Richard Mellon Scaife.
  I am now left to wonder whether his article that was so critical of 
the Attorney General and the Justice Department was as he described 
them at his hearing the ``statements of a private citizen,'' or another 
richly paid for political tract.
  Again, he, like all of us, can write any kind of a political tract he 
wants. He, like all of us, can make statements critical of anybody he 
wants. He can even make outlandish charges. But let's be honest about 
what we have done when testifying under oath before the Judiciary 
Committee.
  His supporters repeat the mantra that even if he was paid with 
Arkansas Project funds, Mr. Olson would not have known that. What they 
leave out is a necessary qualifier ``at the time he received the 
payment.'' By the time he came to the committee and testified, in 
answer to direct questions, he had become privy to the internal audit 
of the Arkansas Project. In fact, he says he became privy to that 3 
years ago in 1998. That audit and his knowledge as a board member of 
the extent of the Arkansas Project that it revealed rendered Mr. 
Olson's testimony in April, 2001, less than complete.
  Having now conceded his involvement in these matters, something he 
did not do initially, the question arises: How extensive was that 
involvement as a lawyer? That is why I asked at least for production of 
his firm's billing records for legal services rendered to the American 
Spectator, but I was stonewalled on that request. Mr. Olson asserted 
attorney-client privilege; but he did not offer to cooperate by 
producing nonprivileged copies of those records.
  Every lawyer in this place knows what is privileged and what is not, 
what falls under attorney-client privilege and what does not. And he 
did not even want to produce those things that clearly fall outside the 
attorney-client

[[Page 9403]]

privilege. In fact, such nonprivileged records have been produced in 
connection with other Government inquiries. Certainly in the last 6 
years, documents have been produced by the bushel to the same Judiciary 
Committee during other investigations.
  As part of the bipartisan inquiry undertaken after the committee vote 
on this nomination, we became aware of this fact. The independent 
counsel review and report we were able to read--that was only a small 
part of it--indicates that requests were made to Mr. Olson and his law 
firm for billing records for any client that had received Scaife 
foundation grants between 1992 and 1998 in order to ascertain whether 
there had ``been an indirect method to compensate (the law firm) for 
its unpaid representation of Hale.'' That would be David Hale.
  Just as here, Mr. Olson's law firm initially invoked attorney-client 
privilege but realized that ultimately they had to give what were 
nonprivileged billing records for Mr. Olson. And they showed Mr. 
Olson's representation of both David Hale and the American Spectator. 
But the independent counsel was unable to forward those records in 
response to the bipartisan, joint request for them by Senator Hatch and 
myself.
  So Senator Hatch and I then sent a joint request to Mr. Olson's firm 
requesting information about the total amount of fees paid by the 
American Spectator to the firm. Remember, the implication was there 
really was not anything there. Today, we were informed that the amount 
paid was not $500 to $1,000 per article the committee was first told by 
Mr. Olson. Instead, it was for legal services performed $94,405.
  I am not a bookkeeper. I was a middling math student. But like most 
Vermonters, I can count. There is quite a bit of difference between 
$500 to $1,000 and $94,405.
  Mr. Olson has tried to distance himself from the most controversial 
aspects of the Arkansas Project in its activities to publicize 
allegations of wrongdoing about the Clintons in Arkansas. Mr. Olson 
stated that he ``represented the American Spectator in the performance 
of legal services from time to time beginning in 1994 * * * those legal 
services were not for the purpose of conducting or assisting in the 
conduct of investigations of the Clintons.''
  Yet, we find out he was paid over $8,000 to prepare a chart outlining 
the Clintons' criminal exposure as research for a February 1994 article 
Mr. Olson co-authored against the Clintons entitled, ``Criminal laws 
Implicated by the Clinton Scandals: A partial list.''
  Finally, Mr. Olson has testified he simply does not recall who 
contacted him to represent David Hale.
  This is a man who has as sharp a mind as just about anybody I have 
met around here, but he does not recall who contacted him to represent 
David Hale, a central part of this whole inquiry.
  So when I asked Mr. Olson at his April 5 hearing how he came to 
represent Mr. Hale he started by saying, ``[t]wo of [Hale's] then 
lawyers contacted me and asked . . .'' A few seconds later Mr. Olson 
said:

       [o]ne of his lawyers contacted me--I can't recall the man's 
     name--and asked whether I would be available to represent Mr. 
     Hale in connection with that subpoena here in Washington, 
     D.C. They felt that they needed Washington counsel with some 
     experience dealing with a congressional investigation. I did 
     agree to do that. Mr. Hale and I met together.

  Even in his May 9 letter, Mr. Olson asserts that he, ``cannot recall 
when [he] was first contacted about the possibility of representing Mr. 
Hale.'' He indicates that he believes, ``that [he] was contacted by a 
person or persons whose identities [he] cannot presently recall 
sometime before then regarding whether I might be willing to represent 
Mr. Hale if he needed representation in Washington.''
  The Washington Post reported that David Henderson said that he 
introduced Hale to Olson. Interestingly, David Henderson apparently 
signed a statement on May 14 indicating that in his view he broke no 
law while implementing the Arkansas Project. But what he does not say 
and what he does not deny is that he was the person who introduced 
David Hale to Mr. Olson.
  The role that David Henderson played in introducing David Hale to Mr. 
Olson is apparently corroborated by several other witnesses who have 
spoken to the American Prospect in a story released today.
  It now strikes me as strange that a man as capable as Mr. Olson with 
his vast abilities of recall could not remember the name of David 
Henderson, if Mr. Henderson was, in fact, involved in setting up that 
representation.
  And it strikes me as doubly strange when the bipartisan inquiry 
conducted after the committee vote on this nomination uncovered 
evidence that Mr. Olson was able to recall who introduced him to David 
Hale just a couple of years ago when he was asked the same question.
  The Hale independent counsel report indicates that in 1998 Mr. Olson 
could supply the name of the person who referred David Hale to him for 
legal representation.
  It leads one to easily wonder whether Mr. Olson's failure to recall 
the name, David Henderson, in the year 2001 had something to do with 
him not wanting to indicate the connection to such a central figure in 
the Arkansas project.
  Some would say, what importance is there to this? Does it really 
matter whether Mr. Olson accurately and fully described his role in the 
American Spectator and the Arkansas project? This nomination is for the 
office of Solicitor General. It is important for two reasons, both of 
which go to the fitness of the nominee to serve as Solicitor General.
  The principal question raised by the nomination of Mr. Olson to this 
particular position--remember, this is a position that is supposed to 
be nonpolitical, nonpartisan, representing all Americans of whatever 
political allegiance they have, or whether they have none. The question 
is whether his partisanship over the last several years in connection 
with so many far-reaching anti-Clinton efforts to mark Mr. Olson as a 
thorough-going partisan who will not be able to check his partisan 
political instincts at the door to the Office of the Solicitor General.
  Now, the reason I ask that is we have another nominee before us, 
Michael Chertoff, and we asked some of these same questions about 
Michael Chertoff. In that case, the questions were answered, the doubts 
dissipated. Instead of a 9-9 vote, Mr. Chertoff, had a rollcall vote in 
committee and it was unanimous; Republicans and Democrats across the 
political spectrum voted for him. There were Doubts, but the questions 
about Mr. Chertoff disappeared. But the doubts and questions about Mr. 
Olson have grown over time.
  Had Mr. Olson been straightforward with the committee, had he 
conceded the extent of his involvement in anti-Clinton activities and 
given the kinds of assurances that Mr. Chertoff did about his upcoming 
responsibilities, I could very easily be supporting his confirmation.
  Actually, when I first met with Mr. Olson, and even at his hearing 
before we had a chance to go through all of his answers and see the 
areas where they didn't show consistency, I had hoped and expected to 
be supporting him. In fact, I remember saying to someone in my office 
at that time that I assumed I would be supporting him. I expected to be 
able to give him the benefit of the doubt.
  In light of the deference I normally accord a President's executive 
branch nominees, I fully expected to be voting for this nomination, 
just as I voted for so many by the five previous Presidents, both 
Republican and Democrat.
  In the wake of the hearing, the series of supplemental responses we 
have received, and the unanswered questions now in the public record 
about Mr. Olson's involvement in partisan activities like the Arkansas 
project, I have many doubts.
  We also have a question of candor and straightforwardness. I have not 
had the sense from his hearing onward that Mr. Olson has been truly 
forthcoming with either me or with the committee. My sense is that for 
some reason he chose from the outset to try to minimize his role in 
connection with the activities of the American Spectator, that he has 
sought to characterize it in the most favorable possible

[[Page 9404]]

light, that he has sought to conclude for us rather than provide us 
with the facts and let us conclude how to view his activities.
  As I review the record and the initial nonresponsiveness, lack of 
recall, corrections when confronted with specifics, I am left to wonder 
what happened to ``absolute candor and fair dealing,'' the touchstone 
that Mr. Olson himself says is necessary for a Solicitor General. In 
concluding my May 4, 2001, letter to Mr. Olson, I noted:

       The credibility of the person appointed to be the Solicitor 
     General is of paramount importance. When arguing in front of 
     the Supreme Court on behalf of the United States Government, 
     the Solicitor General is expected to come forward with both 
     the strengths and weaknesses of the case, to inform the Court 
     of things it might not otherwise know, and to be honest in 
     all his or her dealings with the Court. I expect that same 
     responsiveness and cooperation from nominees before this 
     Committee.

  My expectation had been to support him. Please understand, this is 
not the role of a lawyer advocate in our legal system. I have been an 
advocate of the court, both at the trial level and at the appellate 
level. I have been there both for the prosecution and for the defense. 
In private practice, I was there both for the plaintiffs and 
defendants. You fight like mad. You make as strong a case for your 
client as you can. That is fine.
  The Solicitor General is different. The Solicitor General is 
sometimes referred to as the tenth justice. He is expected to tell the 
Court these are the strengths of my case, but let me tell you also 
where the weaknesses are of my case. If a matter is left out, or there 
might be a weakness in the case, he is duty-bound to bring it forward 
to the Court's knowledge because, if confirmed, Mr. Olson is not a 
lawyer advocate for just one client because that client is the United 
States of America--all 270 million of us. I want to be sure that our 
Nation's top lawyer will see the truth and speak the truth fully to the 
Supreme Court and represent all of our best interests in the matters 
over which the Solicitor General exercises public authority.
  I have confidence that Mr. Olson is an extremely capable lawyer. Of 
course, I do. Do I have confidence that he can set aside partisanship 
to thoroughly and evenhandedly represent the United States of America 
before the Supreme Court? I do not have such confidence, and I cannot 
vote for him.
  Mr. President, how much time remains for the Senator from Vermont?
  The PRESIDING OFFICER. There are 76 minutes remaining.
  Mr. LEAHY. Mr. President, the Solicitor General fills a unique 
position in our Government. The Solicitor General is not merely another 
legal advocate whose mission is to advance the narrow interests of a 
client, or merely another advocate of his President's policies. The 
Solicitor General is much more than that. The Solicitor General must 
use his or her legal skills and judgment for higher purposes on behalf 
of the law and the rights of all the people of the United States.
  At his hearing, Mr. Olson acknowledged that:

       The Solicitor General holds a unique position in our 
     Government in that he has important responsibilities to all 
     three branches of our Government. . . . And he is considered 
     an officer of the Supreme Court in that he regularly and with 
     scrupulous honesty must present to the Court arguments that 
     are carefully considered and mindful of the Court's role, 
     duty, and limited resources. As the most consistent advocate 
     before the Supreme Court, the Solicitor General and the 
     lawyers in that office have a special obligation to inform 
     the Court honestly and openly. The Solicitor General must be 
     an advocate, but he must take special care that the positions 
     he advances before the Court are fairly presented. As 
     Professor Drew Days said to this committee during his 
     confirmation hearing 8 years ago, the Solicitor General has a 
     duty towards the Supreme Court of ``absolute candor and fair 
     dealing.''

  Republicans and Democrats have carefully reviewed nominations to the 
position of Solicitor General to ensure the highest levels of 
independence and integrity, as well as legal skills. Indeed, the 
Solicitor General is the only government official who must be, 
according to the statute, ``learned in the law.'' The Solicitor General 
must argue with intellectual honesty before the Supreme Court and 
represent the interests of the Government and the American people for 
the long term, and not just with an eye to short-term political gain. I 
ask unanimous consent to have printed in the Record a recent article by 
Professor Lincoln Caplan on the role of the Solicitor General.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, May 18, 2001]

                The President's Lawyer, and the Court's

                          (By Lincoln Caplan)

       New Haven.--The job of solicitor general is one of the most 
     eminent in American law. Part advocate, the S. G. as he is 
     called, represents the United States before the Supreme 
     Court, where the federal government is involved in about two-
     thirds of all cases decided on the merits (as opposed to 
     procedural grounds). Part judge, he chooses when the 
     government should appeal a case it has lost in a lower court, 
     file a friend-of-the-court brief, or defend an act of 
     Congress. Most S.G.'s have influenced rulings in landmark 
     cases; many have become judges; four have risen to the 
     Supreme Court. Yet for most of this tiny office's history 
     since it was created in 1870, the S.G. drew little public or 
     even scholarly attention.
       Today, however, the nomination of Theodore Olson to be S.G. 
     is headline news, as is evident from the attention to the 
     Senate Judiciary Committee's 9-9 vote on it yesterday, a 
     split along party lines. In the past 40 years, the courts 
     have become forums for resolving social questions, and the 
     docket of the Supreme Court has become defined by the most 
     divisive issues. During the past 15 years, especially, as the 
     line between law and politics has been increasingly hard to 
     draw, the choice of a solicitor general has become more 
     important politically than that of any legal figure except 
     for the attorney general or a Supreme Court justice.
       The choice of Mr. Olson makes this point sensationally 
     because his legal accomplishments are so marked by ideology. 
     As a young Justice Department official under Ronald Reagan, 
     he made his name as an adamant defender against Democrats in 
     Congress who were trying to probe a Republican environmental 
     scandal. He has litigated matters like a major anti-
     affirmative-action case in Texas, brought by conservative 
     activists to overturn liberal precedents. He has served on 
     the board of the conservative American Spectator magazine, 
     for which he wrote biting, anonymous criticism of Bill and 
     Hillary Clinton. He has helped lead the Federal Society, a 
     conservative legal organization that is now a formidable 
     force in the Bush Administration. Most significantly, he was 
     the winning attorney in the Supreme Court case of Bush v. 
     Gore. During Mr. Olson's Senate confirmation hearing, Richard 
     Durbin, Democrat of Illinois, said to him, ``I can't find any 
     parallel in history of anyone who was as actively involved in 
     politics as you and went on to become solicitor general.''
       For the S.G.'s office, the Olson nomination frames a debate 
     that was sparked during the Reagan years and remains 
     undecided.
       The traditional view holds that the solicitor general has a 
     unique role in American law and functions as ``the 10th 
     justice.'' Justice Lewis Powell, for example, argued that the 
     S.G. has a ``dual responsibility''--to represent the 
     president's administration but also to help the Supreme Court 
     develop the law in ways that serve the long-term interests of 
     the United States. (To some experts, the S.G.'s duty to 
     defend federal statutes amounts to a third responsibility, to 
     Congress.) Rex Lee, the first solicitor general in the Reagan 
     administration, was an unequivocal conservative. Yet he was 
     forced to quit by colleagues who thought he was too 
     restrained in his advocacy of the president's social agenda. 
     Famously, he said that it would have been wrong for him to 
     ``press the administration's policies at every turn and 
     announce true conservative principles through the pages of my 
     briefs.'' He was, he stated, ``the solicitor general, not the 
     pamphleteer general.''
       A more recent view is that the S. G. should act as a 
     partisan advocate for policies of the president, not as the 
     legal conscience of the government. Rather than defending a 
     position of independence within the administration, Mr. Lee's 
     successor, Charles Fried, told the Senate that ``it would be 
     peevish and inappropriate for the solicitor general to be 
     anything but cheerful'' while supporting the views and 
     interests of the president who appointed him.
       The latter outlook is much easier to defend. The separation 
     of powers among the three branches of government makes it 
     simplest to regard the solicitor general as a spokesman for 
     the executive branch: the concept of a dual responsibility 
     (or a triple one) confounds the notion of checks and 
     balances.
       Yet for decades the former outlook prevailed, and it is 
     supported in the only official statement about the S. G.'s 
     role, issued in 1977 by the Justice Department. The Supreme 
     Court has bestowed on the solicitor general a special 
     status--seeking the S. G.'s advice in many cases where the 
     government isn't even a party. And the S. G. has reciprocated 
     by fulfilling a special role in court.

[[Page 9405]]

     If a private lawyer wins a case he thinks he should have 
     lost, he accepts his victory in judicious silence. But when 
     the solicitor general prevails on grounds that he considers 
     unjust (for example, when evidence supporting a criminal 
     verdict is slight), he may ``confess error'' and recommend 
     that the Supreme Court overturn the decision. To Archibald 
     Cox, one of the country's admired S. G.'s, surrendering 
     victory in some cases helps justify the reliance that the 
     Supreme Court places on the solicitor general: this practice 
     demonstrates that the solicitor general's approach to arguing 
     the government position is likely to be developed with the 
     nation's long-term interests in mind.
       Both views of the role require candor in the S. G. That's 
     why last week the Senate Judiciary Committee postponed its 
     vote on Mr. Olson after reports surfaced that he had given 
     misleading testimony, during his confirmation hearing, about 
     his role in a project run by The American Spectator to find 
     damaging information about the activities of the Clintons in 
     Arkansas. The question of misleading testimony is reminiscent 
     of a rebuke to Mr. Olson by an independent counsel who 
     investigated whether he had lied to Congress in testimony 
     during his days as a Reagan defender. While ``literally 
     true,'' the counsel stated, that testimony was ``potentially 
     misleading.''
       Whether he is approved as solicitor general by the full 
     Senate or the Bush administration must choose someone else 
     for the post, a deeper question endures: Is it now acceptable 
     to define the job as that of an outright partisan? Or should 
     the S. G. remain an advocate for the nation's long-term 
     interests whose duty to the rule of law goes beyond 
     allegiance to the political views of the administration?

  Mr. LEAHY. The Senate must determine whether a nominee to the 
position of Solicitor General understands and is suited to this 
extraordinary role. From Benjamin Bristow in 1870, to William Howard 
Taft and Charles Evans Hughes, Jr., from Robert Jackson to Archibald 
Cox, Thurgood Marshall and Erwin Griswold, we have had extraordinary 
people serve this country as our Solicitors General. It is with the 
importance of this position in mind that I approached the nomination of 
Ted Olson to serve as Solicitor General of the United States. From my 
initial meeting with him in advance of the April 5, 2001, hearing and 
thereafter, I have been assessing this nomination against the 
responsibilities of that important office.
  Initial Concerns. At the outset, I raised with Mr. Olson my concern 
that his sharp partisanship over the last several years might not be 
something that he could leave behind. After review of his testimony 
both orally and in answers to written questions, I have become doubly 
concerned that Mr. Olson has not shown a willingness or ability to be 
sufficiently candid and forthcoming with the Senate so that I would 
have confidence in his abilities to carry out the responsibilities of 
the Solicitor General and be the voice of the United States before the 
United States Supreme Court. In addition, I am concerned about other 
matters in his background.
  I will detail below the source of my concerns about Mr. Olson's 
candor before the Committee about his involvement with the American 
Spectator and the ``Arkansas Project.'' His initial responses to my 
questions at his hearing prompted concern that the Committee might not 
have heard a candid and complete accounting from Mr. Olson. Rather than 
respond directly and say all that he did do in connection with those 
matters, Mr. Olson chose to respond by misdirection and say what he did 
not do. He initially described his role as extremely limited as a 
member of the Board of Directors of the American Spectator Educational 
Foundation and implied that he was involved only after the fact, when 
that Board conducted a financial audit and terminated the ``Arkansas 
Project'' activities in 1998.
  Need for Committee Inquiry. Mr. Olson has modified his answers over 
time, his recollection has changed, and he has conceded additional 
knowledge and involvement. His initial minimizing of his role appears 
not to be consistent with the whole story. Because his responses over 
time left significant questions and because of press accounts that 
contradicted the minimized role to which he initially admitted, I 
wanted to work with Senator Hatch before the Judiciary Committee voted 
on this nomination to have the Committee perform the bipartisan factual 
inquiry needed to set forth the facts and resolve all questions and 
concerns about Mr. Olson's answers.
  Indeed, Senator Hatch postponed one Committee vote on Mr. Olson's 
nomination on May 10 and admitted that ``some legitimate questions'' 
have arisen and that ``legitimate issues'' were involved. He said that 
after a May 10 article in the Washington Post indicated that Mr. 
Olson's role at American Spectator and the activities of the ``Arkansas 
Project'' were more than just as a member of the Board of Directors in 
1998 to which a financial audit was provided.
  When I did not hear from Senator Hatch about how he wished to proceed 
to resolve those legitimate questions, I sent him a letter on May 12 
proposing a course of action to avoid any undue delay. After I sent my 
proposal, Senator Hatch and I talked about it. He said he would be 
getting back to me and I held out hope that we would be able to proceed 
in a fair and bipartisan way to get to the facts and let all Members of 
the Committee make their own assessment before they voted upon the 
nomination.
  Instead, Senator Hatch was apparently just waiting for a letter from 
Mr. Olson, which arrived accompanied by short, solicited statements 
from a few selected supporters so that he could unilaterally declare 
the matter closed. None of these statements could serve as a substitute 
for the Committee doing its job, and, instead of playing catch-up to 
the press, exercising the due diligence that the American people expect 
from the Judiciary Committee in our review of a nominee for a position 
sometimes called the ``Tenth Supreme Court Justice.'' In essence, the 
question I wished to examine was whether Mr. Olson fully informed the 
Committee in response to direct questions about his role in the 
American Spectator and the ``Arkansas Project.'' This was never a 
question of whether there was illegal conduct.
  Committee Vote. Rather than proceed in a bipartisan way to establish 
the factual record needed to evaluate Mr. Olson's characterization of 
his activities, Senator Hatch rejected even an inquiry of limited 
duration that would have involved jointly interviewing seven 
individuals, who had already been quoted or referred to by the press, 
with contemporaneous knowledge from the time in question, and gathering 
relevant background documents, which had also been referred to in the 
press. He pressed forward with a vote in Committee on this nomination 
that resulted in a 9-9 tie vote.
  While usually a nomination on such a vote would not be reported to 
the Senate, circumstances have changed that prompt me to give my 
consent for Mr. Olson's nomination to be considered. With the 
constructive assistance of both Leaders and their staffs, we were able 
over the past week to conduct a limited, bipartisan inquiry on the 
matters of concern raised by Mr. Olson's responses to the Committee.
  Limited Bipartisan Inquiry: Following the 9-9 vote on this nomination 
in the Judiciary Committee on May 17, 2001, Senator Hatch and I 
released a joint statement the next day indicating that we were 
discussing how to move forward on the nomination and to address 
specific concerns that Members might have prior to the confirmation 
vote. As part of this inquiry, Committee staff reviewed, on a 
bipartisan basis, a heavily-redacted version of the report of the 
Office of Special Review (OSR), prepared by Michael Shaheen and May 21, 
2001 responses by Independent Counsel Robert W. Ray, including to 
questions posed jointly by Senators Hatch and me. One of these letters 
is in response to a query from Senator Hatch sent unilaterally and 
without notice to me. On May 22, Senator Hatch and I jointly released 
for review by all the members of the Senate the two May 21 letters 
received from Mr. Ray and the redacted OSR report--with additional 
redactions to remove the names of specific individuals other than the 
nominee.
  In addition, Senator Hatch released a May 22 letter to colleagues 
that included 71-pages of American Spectator-related records, which 
were anonymously delivered to my Judiciary Committee and which shed 
light on how the

[[Page 9406]]

``Arkansas Project'' came about. I should note that within minutes of 
discovery of these documents, copies were made and delivered to Senator 
Hatch's Judiciary Committee office.
  Finally, the Committee staff made efforts to conduct an interview of 
Ronald Burr, the former publisher of the American Spectator and a key 
witness to the events in question. In fact, Mr. Burr was the person at 
the magazine instrumental in obtaining the grant funds from 
conservative billionaire Richard Mellon Scaife. Among the anonymous-
source documents released by Senator Hatch is a December 2, 1993 letter 
from Richard M. Scaife to R. Emmett Tyrrell, as President and Chairman 
of the American Spectator Educational Foundation, stating that ``[t]his 
grant is in response to Ron Burr's October 13, 1993 letter and various 
conversations with us.'' In addition, Mr. Burr was the person to whom 
Mr. Olson sent his February 18, 1994 letter confirming the terms of his 
representation of the American Spectator and his January 30, 1996 
letter confirming his acceptance of a membership on the board of the 
American Spectator Educational Foundation. Unfortunately, Committee 
staff were unable to speak to Mr. Burr, despite his willingness to do 
so because the American Spectator refused to release him from the 
confidentiality provision in his severance agreement for purposes of 
Mr. Burr's cooperation with the Committee's inquiry.

                    contradictions and discrepancies

  Let me describe just a few of the discrepancies in Mr. Olson's 
evolving statements to this Committee. These are discrepancies that 
give me pause.
  First, Mr. Olson has minimized his knowledge of the ``Arkansas 
Project'' and its activities through word games and definitional ploys. 
At the hearing, I asked him the direct question: ``Were you involved in 
the so-called Arkansas Project at any time?'' Mr. Olson responded by 
saying what he did not do, and with reference to his membership on the 
Board of Directors: ``As a member of the board of directors of the 
American Spectator, I became aware of that. It has been alleged that I 
was somehow involved in that so-called project. I was not involved in 
the project in its origin or its management. . . . I was on the board 
of the American Spectator later on when the allegations about the 
project were simply that it did exist.'' (Tr. at pp. 200-01).
  Why is there reason to suspect that Mr. Olson's role was not limited 
to that of a Member of the Board to which a financial audit was 
provided in 1998? A good deal of the basis is provided by subsequent 
answers provided by Mr. Olson himself. In April, 2001, his testimony 
was initially that he was not involved, except as a Member of the 
Board. Over the past several weeks and several rounds of questions, Mr. 
Olson has expanded his initial response to admit that he and his firm 
provided legal services in connection with the matter, that he had 
discussions in ``social'' settings with those working on ``Arkansas 
Project'' matters, and that he himself authored articles for the 
magazine paid for out of Scaife's special ``Arkansas Project'' fund.
  Compare, for example, Mr. Olson's initial response with his 
subsequent responses in which he modified his original answer. In his 
May 9, 2001 letter to me, he stated: ``First, I will address again your 
questions concerning my involvement in the `Arkansas Project.' My only 
involvement in what has been characterized as the `Arkansas Project' 
was in connection with my service to the Foundation as a lawyer and 
member of its Board of Directors.'' [Underlining added for emphasis.] 
Mr. Olson initially left out any reference to his role a lawyer.
  Mr. Olson and his supporters then began to engage in a word game over 
what the meaning of ``Arkansas Project'' is. His law partner Douglas 
Cox told the Post that Olson testified that he, ``did not know there 
was this special fund set up by Scaife to finance this Arkansas fact 
work.'' That might have explained Mr. Olson's testimony if he had said 
that at the time he was writing the articles and giving legal advice 
and talking about these matters with the staff, he had been unaware 
that those conversations were in connection with what came to be known 
as the ``Arkansas Project.'' But that is not what Mr. Olson testified. 
In fact, he admitted that he became aware of the ``Arkansas Project'' 
at least by 1998, and then changed that testimony to sometime in 1997. 
He said he was a Member of the Board that received an audit of the 
Scaife funds. So by 2001, his knowledge of the ``Arkansas Project'' and 
the funding by Scaife was undeniable.
  On this particular definitional point, Mr. Olson has minimized his 
role in and his knowledge of how the Scaife money was spent by the 
Foundation, even though he was on the board. It strains credulity that 
he did not know given the size of the Scaife grants--especially when 
another board member has described briefings to the board on the 
Arkansas Project and its financing as ``routine.'' [Peter Hannaford, 
Washington Post, May 15, 2001]. Moreover, board minutes for a meeting 
on May 19, 1997, which were included in the anonymous-source documents 
released by Senator Hatch on May 22, indicate that the board--at least 
at that meeting--discussed a number of financial matters, such as the 
foundation's equity holdings, operating reserves, employment contracts, 
and commitments from the Scaife Foundation. (Doc. pp. 44-46).
  This is certainly not the first occasion that Mr. Olson has played 
this word game. Independent Counsel Robert W. Ray notes in response to 
a request from Senator Hatch, that in a memoranda of interview, Mr. 
Olson acknowledged that ``he may have been asked questions by [names 
redacted] about things that they were doing in Arkansas, but Olson did 
not know anything about the ``Arkansas Project'' and ``he was not 
involved in the direction of funding of that project.'' Mr. Olson was 
precise in his denial of knowledge and involvement to refer to the term 
``Arkansas Project.'' One unnamed person interviewed by the OSR 
investigation stated, however, that ``the `Arkansas Project' was not a 
term used by [name redacted] or anyone else at the American Spectator 
to his knowledge.'' (May 21 Ray Letter, n. 2).
  But even accepting Mr. Olson's strict definition of the ``Arkansas 
Project,'' which apparently requires knowledge of the Scaife funding 
source, rather than the broader use of the term to describe the general 
activities of Clinton scandal mongering underway at the American 
Spectator from 1993 through 1998, his involvement was more than he 
described. On Friday, May 11, 2001, the New York Times reported that 
Mr. Olson said that when he joined the Board of Directors of the 
American Spectator the ``Arkansas Project'' was underway and that when 
he found out about it, he helped shut it down. In fact, Mr. Olson's 
testimony to the Committee was that he was on the Board, ``when the 
allegations about the project were simply that it did exist. The 
publisher at the time, under the supervision of the board of directors, 
hired a major independent accounting firm to conduct an audit to report 
to the publisher and therefore to the board of directors with respect 
to how that money was funded. . . . As a result of that investigation, 
the magazine, while it felt it had the right to conduct those kind of 
investigations, decided that it was not in the best interest of the 
magazine to do so. It ended the project. It established rules to 
restrict that kind of activity in the future. . . .''
  In a subsequent written response, Mr. Olson wrote: ``Neither the 
report by Mr. [Terry] Eastland nor the Board found anything unlawful 
about the manner in which funds had been spent, which as I recall, had 
all been for the purpose of investigating and reporting information of 
legitimate public interest regarding a high level public official. 
However, because of the controversy surrounding the matter, and issues 
regarding whether the journalistic products that resulted had been 
worth the amount spent, the project was ended and the Board adopted new 
guidelines to govern investigative journalistic efforts in the 
future.''
  The letter is interesting on these points, but only adds to the 
questions

[[Page 9407]]

rather than resolving what in fact happened. Mr. Eastland adds another 
perspective and indicates a much more active role for Mr. Olson than 
had previously been acknowledged in representations to the Committee. 
Mr. Eastland writes that in June, 1997, disagreements arose between the 
magazine's ``then publisher'' and Richard Larry, the executive director 
of the Scaife foundations.
  Mr. Eastland continues: ``At that time, Mr. Tyrrell, who was also 
chairman of the board, asked Mr. Olson, a board member since 1996, for 
his assistance in resolving the dispute.'' This role has never 
previously been acknowledged by Mr. Olson or Mr. Tyrrell. Mr. Eastland 
then asserts that ``Mr. Olson agreed that a review of the project was 
necessary.'' He continues: ``Throughout my review, which included an 
accounting of the monies spent on the project as well as an examination 
of its management, methods, and results, I had Mr. Olson's strong 
support.'' So, according to Mr. Eastland, Mr. Olson had a much more 
extensive role in deciding how the American Spectator would ``resolve'' 
the dispute, contributed to the decision to conduct a review and played 
a strong supportive role in the review.
  If Mr. Olson is now taking credit for finding out about the 
``Arkansas Project'' and for shutting it down, as reported by the New 
York Times on May 11, 2001, that would be a modification of those 
responses and his initial response that he was not involved in the 
project, ``in its origin or its management,'' to his later formulation 
that he did, ``not recall giving any advice concerning the conduct of 
the `Project' or its origins or management,'' to his later formulation 
that he was not involved in its, ``inception, organization or ongoing 
supervision,'' or alternatively, that his, ``only involvement in what 
has been characterized as the `Arkansas Project' was in connection with 
my service to the Foundation as a lawyer and member of its Board of 
Directors.''
  Of course, there is much left unsaid by Mr. Eastland on this and 
other topics. For example, he does not indicate how he came to be the 
publisher of the American Spectator and replaced Ronald Burr in 
November 1997 or whether Mr. Olson had a role in his recruitment or in 
that action of replacing the publisher. In this regard, Mr. Olson did 
not indicate to the Committee in his submitted responses to our 
questionnaire that he had been an officer at the American Spectator 
Educational Foundation. In written follow up questions, I drew his 
attention to passages in The Hunting of the President (Id.) in which 
the authors of that published work indicate that Mr. Olson was named an 
officer of the organization on October 1997. Mr. Olson's response is 
uncertain and equivocal indicating that he had a, ``vague recollection 
that [he] served as a temporary secretary for the purpose of that 
meeting, and perhaps a subsequent one, something that I did not recall 
at the time I answered the initial written questions.''
  Second, evidence uncovered during the Committee's limited bipartisan 
inquiry following the Committee vote, raises serious question about 
whether Mr. Olson accurately denied any role in the ``origin'' of the 
``Arkansas Project'' by failing to respond correctly to direct 
questions about a meeting in his law office held in late December, 1993 
when this project was getting organized.
  The anonymous-source documents released by Senator Hatch reveal that 
following requests by the American Spectator as early as October 13, 
1993, Richard M. Scaife on December 2, 1993 ``approved a new grant to 
The American Spectator Educational Foundation, Inc.'' and forwarded the 
first installment of the grant. (Doc. p. 19). Thus, by late December 
1993, the Scaife funding was in place at the American Spectator to 
support the activities that would come to be called the ``Arkansas 
Project.''
  With the Scaife funding secured, the OSR Report confirms that Mr. 
Olson met in his office in late December 1993 with people associated 
with the American Spectator--Ronald Burr, maybe David Henderson, 
Stephen Boynton and David Hale. (OSR Report, pp. 78, 82, 90; May 21, 
Joint Q. 5). ``[A]t least seven individuals were identified as having 
possibly been in attendance.'' (Id.) Mr. Olson recalled this meeting in 
1998 during the OSR investigation, stating that ``in approximately 
December 1993'' he hosted a meeting in his office, that the meeting was 
``about the possibility that he provide counsel to the magazine,'' that 
David Hale attended this meeting, and that ``the participants may have 
discussed Hale's need for a `Washington lawyer' to represent him if he 
was called to testify before any congressional committees.'' (OSR 
Report, pp. 28, 78).
  While the description of what discussions may have taken place at 
this meeting is ``incomplete and inconsistent'' with ``inconsistencies 
not resolved by the Shaheen investigation'' (May 21 Ray Response to 
Joint Q. 5), the OSR report contains the following descriptions from 
other participants in the meeting: ``while Hale may have been a topic 
of conversation during this meeting, no one requested Olson to 
represent Hale'' (p. 82); ``[Redacted] recalled meeting with attorneys 
Theodore Olson and [redacted] to discuss the representation of David 
Hale, . . .'' (P. 90). Mr. Ray has identified these references likely 
to be to the same December 1993 meeting. (May 21 Ray Response to Joint 
Qs. 5, 7, 9).
  In addition to these limited descriptions in the OSR Report, 
Independent Counsel Ray reviewed the underlying memoranda of interviews 
of three participants in the December 1993 meeting in Mr. Olson's 
office and summarized their statements in a May 21 letter responding to 
a question sent unilaterally by Senator Hatch. According to Mr. Ray, 
whose cooperation during this bipartisan inquiry has been exemplary and 
helpful, Mr. Olson admitted that at this meeting David Hale's need for 
counsel was discussed and that this meeting was ``the commencement of 
[my] relationship with the American Spectator magazine'' but he 
declined to describe the substance of that discussion, claiming the 
attorney/client privilege.'' (Id., p. 2). It is difficult to see, 
however, how the meeting could be covered by attorney/client privilege 
when David Hale, who had no formal affiliation with the Spectator, was 
present.
  One unnamed participant confirms part of Mr. Olson's recollection, 
stating, ``the purpose of the meeting was to get Olson to represent 
Hale.'' Another unnamed participant appears to confirm the other part 
of Mr. Olson's recollection regarding the second purpose of the meeting 
about American Spectator activities, stating: ``The subject of this 
meeting was Bill and Hillary Clinton and the need for the Spectator to 
investigate and report on numerous alleged Clinton scandals.'' 
(Emphasis supplied).
  Having seen the OSR Report and a statement submitted by Michael 
Horowitz, I am led to wonder whether the account of a late 1993 or 
early 1994 meeting in the Washington law office of Gibson, Dunn & 
Crutcher attended by David Henderson, Steve Boynton, John Mintz, Ronald 
Burr, Ted Olson and Michael Horowitz in The Hunting of the President 
(J. Conason & G. Lyons, 2000) is more accurate than we have been led to 
believe by Mr. Olson. At his hearing, I had asked Mr. Olson whether 
there had been any meetings of the ``Arkansas project'' in his office 
and he responded without reservation: ``No, there were none.''
  I followed up with a written question asking in particular about the 
time frame of 1993 and 1994, and Mr. Olson answered that he was, ``not 
aware of any meeting organizing, planning or implementing the `Arkansas 
Project' in my law firm in 1993 or 1994.'' I then followed up by 
drawing his attention to a passage out of The Hunting of the President 
(Id.) in which the authors of that book wrote that a meeting did take 
place at which the topic was using Scaife funds and the American 
Spectator to, ``mount a series of probes into the Clintons and their 
alleged crimes in Arkansas.'' in response to that written question, Mr. 
Olson was less assertive and categorical. He did not deny that a 
meeting took place but disputed the characterization of the topic of 
the meeting. Hedging his testimony, he

[[Page 9408]]

noted that he did, ``not recall the meeting described.''
  With respect to Mr. Olson's initial categorical denial of meeting at 
Gibson Dunn's offices, in response to another written follow up 
question derived from a passage in The Hunting of the President (Id.), 
I asked whether there had, in fact been meetings not only in 1993 and 
1994 but also in July 1997 at the offices of Mr. Olson's law firm to 
discuss allegations that money for the ``Arkansas Project'' had been 
misallocated. Confronted with the specific reference to the public 
record, Mr. Olson modified his earlier categorical denial by conceding: 
``I do recall meetings, which I now realize must have been in the 
summer of 1997 in my office regarding allegations regarding what became 
known as the `Arkansas Project' and questions concerning whether 
expenditures involved in that project had been properly documented.''
  Third, Mr. Olson has apparently down-played his involvement in the 
development and direction of ``Arkansas Project'' stories, perhaps to 
avoid any inconsistency with his initial representation to the 
Committee that he was not involved in the management of this project.
  Yet, according to a published report in the Washington Post on May 
10, 2001, the report to which Senator Hatch referred when he indicated 
that ``legitimate questions'' had been raised, David Brock told Post 
reporters that ``Olson attended a number of dinner meetings at the home 
of R. Emmett Tyrrell, Jr., president and chairman of the Spectator, 
which were explicitly `brainstorming' sessions about the Arkansas 
Project.'' While Mr. Olson refused to respond to this allegation, his 
law partner, Douglas Cox, who worked on the Spectator account, conceded 
that Olson attended such dinners, but that ``did not mean that he was 
aware of the scope of the `Arkansas Project' and the Scaife funding.''
  David Brock has also indicated that Mr. Olson was ``directly involved 
in the Arkansas Project, participating in discussions about possible 
stories and advising the magazine whether to publish one of its most 
controversial stories, about the death of Clinton White House deputy 
counsel Vincent Foster.'' Washington Post, May 11, 2001. According to 
the account in the Post, Mr. Olson told Mr. Brock that, ``while he 
didn't place any stock in the piece, it was worth publishing because 
the role of the Spectator was to write Clinton scandal stories in hopes 
of `shaking scandals loose.' '' In his response to Senator Hatch, Mr. 
Olson did not deny Mr. Brock's account head on. Instead, he wrote that 
he told Mr. Brock that the article did not appear to be libelous or to 
raise any legal issues that would preclude its publication, and that he 
was not going to tell the editor-in-chief what should appear in the 
magazine.
  The Washington Post also reported that both R. Emmett Tyrrell and 
Wladyslaw Pleszczynski said that project story ideas, legal issues 
involving the stories, and other directly related matters were 
discussed with Mr. Olson by staff members and at dinner parties of 
Spectator staff and board members. The reaction from Mr. Olson's 
supporters was swift. On May 15, 2001, Senator Hatch shared with us a 
letter he obtained from Messrs. Tyrrell and Pleszczynski denying the 
specific words in the Post story but not denying that they talked to 
the Post reporters. Indeed, the Post story quotes Mr. Tyrrell, a quote 
he does not disavow, as saying he did not recall, but it was a 
possibility that he talked to Ted Olson about the stories about the 
Clintons. ``I would say it was a possibility, just as it was a 
possibility that Roosevelt would have discussed Pearl Harbor on 
December 8 with his secretary of state.'' Tyrrell and Pleszczynski also 
say that Mr. Olson's carefully worded disclaimer was technically 
accurate as far as it went.
  In a blatant effort to undermine Mr. Brock's powerful, first-hand 
recollection of Mr. Olson's participation in and contributions to the 
activities of the ``Arkansas Project,'' Mr. Tyrrell also submitted a 
statement that Mr. Brock was not a part of the ``Arkansas Project.'' 
Mr. Brock, in reply, submitted strong contradictory evidence to the 
Tyrrell statement and supplied the committee with multiple Arkansas 
Project expense reports which remain unrefuted and which Mr. Brock 
states, ``clearly show that I was reimbursed thousands of dollars by 
the Project for travel, office supplies, postage, and the like.''
  Over the course of the past few weeks, Mr. Olson has downplayed any 
significance of discussions in social settings about the stories that 
were the product of the ``Arkansas Project.'' In his May 9, 2001, 
letter, Mr. Olson acknowledged: ``Your previous questions asked about 
contacts that I may have had with people involved in the project. My 
answer was and is that I had dealings with the editors of the magazine 
and some of its reporters and staff, some social, some in connection 
with legal work. This was during a time when those persons were 
involved in one form or another with the investigative journalistic 
efforts which the magazine was contemporaneously pursuing. I was, of 
course, aware, along with the public generally, that the magazine was 
writing articles about the Clintons, but I did not know that there was 
a special source of funding for these efforts.''
  In his May 14, 2001, letter to Senator Hatch, he writes: ``It was 
also true that in social settings, the magazine's editorial staff and 
writers spoke of the articles that they were involved in writing and 
publishing. I was among scores of people from time to time included in 
such social events, but nothing about these social discussions involved 
organizing, supervising or managing the project--they were simply 
discussions of subjects of contemporaneous interest to the magazine's 
editors and writers.''
  Yet, taken as a whole, Mr. Olson was clearly involved and 
participated both professionally and socially in the work of the 
American Spectator and its ``Arkansas Project.'' There is absolutely 
nothing illegal about this involvement and participation, but it shows 
a larger role in these activities than Mr. Olson initially portrayed.
  Fourth, Mr. Olson minimized his role in the ``Arkansas Project'' and 
the American Spectator by failing to give complete information about 
the amount of remuneration he has received for his activities on their 
behalf when he was first asked. He told us on April 19 that he was paid 
from $500 to $1,000 for his articles that appeared in the American 
Spectator magazine. Yet, we find out in the Washington Post on May 10 
that his firm was paid over $8,000 for work that was used in just one 
of those articles. In addition, the Post reported that over $14,000 was 
paid to Mr. Olson's law firm and attributed by American Spectator to 
the ``Arkansas Project.''
  When he was asked during his hearing about an article he had 
coauthored that was published under the pseudonym ``Solitary, Poor, 
Nasty, Brutish and Short'' in the American Spectator magazine he did 
not indicate that ``the magazine hired [his] firm to prepare'' such 
materials and to perform legal research on the theoretical criminal 
exposure of the President and Mrs. Clinton based on press accounts of 
their conduct. I, for one, thought Mr. Olson had defended his writings 
as matters of personal First Amendment political expression. I had no 
idea from his testimony at his confirmation hearing that this article 
was part of his and his firm's ongoing legal representation of American 
Spectator Educational Foundation, that it was a commissioned piece of 
legal writing, paid for by a grant from conservative billionaire 
Richard Mellon Scaife. I am now left to wonder whether his article that 
was so critical of the Attorney General and the Justice Department was 
as he described them at his hearing the ``statements of a private 
citizen,'' or another richly paid for political tract.
  Mr. Tyrrell and Mr. Pleszcynski do not deny that Mr. Olson was paid 
for the chart speculating on the Clintons' potential criminal exposure. 
Instead, they merely repeat the mantra that even if he was paid with 
``Arkansas Project'' funds, Mr. Olson would not have known that. What 
they leave out is a necessary qualifier, ``at the time he received the 
payment.'' They and Mr. Olson became privy to the internal

[[Page 9409]]

audit of the ``Arkansas Project'' by 1998. That audit and his knowledge 
as a Board Member of the extent of the ``Arkansas Project'' it revealed 
render Mr. Olson's testimony in April, 2001, less than complete.
  I have inquired of Mr. Olson what his and his firm's legal 
representation of the American Spectator entailed. In response he has 
been extremely general, vague and unspecific and, at times, has cloaked 
his nonresponsiveness in allusions to the attorney-client privilege. In 
fact, his law partner, Douglas Cox, has acknowledged that he and Mr. 
Olson worked on legal matters for the American Spectator, including 
legal research that was incorporated into the article that was 
published in 1994 in the American Spectator, under a fictitious name, 
that argues that the President was facing up to 178 years in prison and 
Mrs. Clinton had a criminal exposure of 47 years in prison. He then 
proceeds to undercut any claim of attorney-client privilege for these 
activities by indicating that they did not rely on any communications 
with anyone at American Spectator.
  Having now conceded his involvement in these matters, something he 
did not do initially, the question arises: how extensive was that 
involvement as a lawyer? That is why I asked at least for production of 
his firm's billing records for legal services rendered to the American 
Spectator, but was stonewalled on that request. Mr. Olson asserted 
attorney-client privilege; he did not offer to cooperate by producing 
non-privileged copies of those records. (April 25 Response, Q.4; May 9 
Response, p. 3). Such records have been produced in connection with 
other government inquiries.
  As part of the bipartisan inquiry undertaken after the Committee vote 
on this nomination, we became aware of this fact. The May 28, 1999 
transmittal letter for the December 9, 1998 OSR Report indicates that 
request were made to Mr. Olson and his law firm, Bigson Dunn & Crutcher 
(GD&C) for billing records for any client that had received Scaife 
foundation grants between 1992-1998 in order to ascertain whether there 
had ``been an indirect method to compensate GD&C for its unpaid 
representation of Hale.'' Just as here, GD&C initially invoked 
attorney-client privilege but ultimately non-privileged billing records 
for Mr. Olson's and GD&C's representation of both David Hale and the 
American Spectator were produced. (May 21 Ray Response to Joint A. 1). 
However, the independent counsel was unable to forward those records in 
response to the bipartisan, joint request for them from Senator Hatch 
and myself.
  Accordingly, Senator Hatch and I then sent a joint request to Mr. 
Olson's firm requesting information about the total amount of fees paid 
by the American Spectator to the firm. On May 24, Mr. Cox informed us 
by letter that the amount paid over the course of five and one-half 
years for legal services performed is $94,405. That is a far different 
number than the $500 to $1,000 per article the Committee was first told 
by Mr. Olson.
  Fifth, Mr. Olson has tried to distance himself from the most 
controversial aspects of the ``Arkansas Project'' in its activities to 
publicize allegations of wrongdoing about the Clintons in Arkansas. Mr. 
Olson stated that he ``represented the American Spectator in the 
performance of legal services from time to time beginning in 1994 . . . 
those legal services were not for the purpose of conducting or 
assisting in the conduct of investigations of the Clintons.'' (April 
25th Responses, Q. 4). Yet, we find out he was paid over $8,000 to 
prepare a chart outlining the Clintons' criminal exposure as research 
for a February 1994 article Mr. Olson co-authored against the Clintons 
entitled, `Criminal laws Implicated by the Clinton Scandals: A partial 
list.'
  Finally, Mr. Olson has testified he simply does not recall who 
contacted him to represent David Hale. When I asked Mr. Olson at his 
April 5 hearing how he came to represent Mr. Hale he started by saying, 
``[t]wo of [Hale's] then lawyers contacted me and asked . . . .'' A few 
seconds later Mr. Olson said, ``[o]ne of his lawyers contacted me--I 
can't recall the man's name--and asked whether I would be available to 
represent Mr. Hale in connection with that subpoena here in Washington, 
D.C. They felt that they needed Washington counsel with some experience 
dealing with a congressional investigation. I did agree to do that. Mr. 
Hale and I met together.''
  Even in his May 9 letter, Mr. Olson asserts that he, ``cannot recall 
when [he] was first contacted about the possibility of representing Mr. 
Hale.'' He indicates that he believes, ``that [he] was contacted by a 
person or persons whose identities [he] cannot presently recall 
sometime before then regarding whether I might be willing to represent 
Mr. Hale if he needed representation in Washington. As I recall, I 
indicated at the time that I might be able to do so, but only in 
connection with a potential congressional subpoena, not with respect to 
legal matters pending in Arkansas. . . . I believe that this meeting 
was inconclusive because Mr. Hale did not at that time need 
representation in Washington.''
  The Washington Post reported that David Henderson said that he 
introduced Hale to Olson when Hale came to Washington to find a lawyer 
who could help him deal with a subpoena from the Senate Whitewater 
committee, and sat in on a meeting between the two men. Interestingly, 
David Henderson apparently signed a statement on May 14 indicating that 
in his view he broke no law while implementing the ``Arkansas 
Project.'' What he does not say and what he does not deny is that he 
was the person who introduced David Hale to Mr. Olson. The role that 
David Henderson played in introducing David Hale to Mr. Olson is 
apparently corroborated by several other witnesses who have spoken to 
the American Prospect in a story released on May 24.
  It now strikes me as strange that a man as capable as Mr. Olson with 
his vast abilities of recall could not remember the name of David 
Henderson, if Mr. Henderson was, in fact, involved in setting up that 
representation. It strikes me as doubly strange when the bipartisan 
inquiry conducted after the Committee vote on this nomination uncovered 
evidence that Mr. Olson was able to recall who introduced him to David 
Hale just a couple of years ago when asked the same question.
  The OSR Report indicates that in 1998 Mr. Olson recalled who referred 
David Hale to him for legal representation, stating: ``Hale became a 
client of Olson's firm around November 1995. Olson believes that Hale 
may have been referred to him by [redacted].'' (OSR Report, p. 79).
  It leads one to wonder whether Mr. Olson's failure to recall the name 
David Henderson had something to do with his not wanting to indicate 
the connection to such a central figure in the ``Arkansas Project.'' 
Indeed, it has been reported that when Mr. Olson became a Member of the 
Board of Directors of the American Spectator his January 1996 letter 
accepting the position was addressed to the publisher Ronald Burr with 
copies sent to Messrs. Tyrrell and Henderson. Mr. Henderson says in his 
recent statement that he served for a while on the Spectator Board. But 
why was he, in particular, sent a copy? One explanation is that Mr. 
Olson has a selective memory and that he did not recall Mr. Henderson 
as the person who contacted him to represent David Hale because that 
would simply be another tie to the ``Arkansas Project.'' But we may 
never know for sure.
  On this point regarding how Mr. Olson came to represent Mr. Hale, and 
Mr. Olson's testimony to the Committee about it, Michael J. Horowitz 
submitted a statement that says that he, Mr. Horowitz, ``attended one 
meeting in Mr. Olson's presence at which the matter discussed was legal 
representation for David Hale, who was facing Congressional testimony 
and was in need of distinguished Washington counsel. At that meeting--
at which no mention I know of was made of the `Arkansas Project' or any 
term like it--the subject under discussion was whether Mr. Olson's firm 
would serve as counsel to Mr. Hale.''
  It is entirely unclear in what capacity Mr. Horowitz was attending 
such a meeting, but it may not have been quite as simple as one or two 
lawyers

[[Page 9410]]

then representing Mr. Hale approaching a high profile Washington lawyer 
and his instantaneous agreement to accept the representation for a 
client without a retainer and without much prospect of being paid 
after. According to Mr. Olson, he and Mr. Hale ``met together'' and Mr. 
Hale agreed to pay [Gibson, Dunn & Crutcher's] fees.'' In the end, Mr. 
Hale could not pay the $140,000 in legal fees he owned Mr. Olson.
  Fitness to be Solicitor General. Some have said, why is this 
important? Does this matter whether he accurately and fully described 
his role in the American Spectator and the ``Arkansas Project''? It is 
important for two reasons, both of which go to the core of the fitness 
of the nominee to serve as Solicitor General. The principle question 
raised by the nomination of Mr. Olson to this particular position is 
whether his partisanship over the last several years in connection with 
so many far reaching anti-Clinton efforts mark Mr. Olson as a 
thoroughgoing partisan who will not be able to check his partisan 
political instincts at the door to the Office of the Solicitor General. 
Similar questions were raised by the nomination of Michael Chertoff. In 
that case the questions were answered and the doubts dissipated. In 
connection with the Olson nomination, those doubts have grown over 
time.
  Had Mr. Olson conceded the extent of his involvement in anti-Clinton 
activities and given the kinds of assurances that Mr. Chertoff did 
about his upcoming responsibilities, I would be supporting his 
confirmation. Indeed, when I met with Mr. Olson and at his hearing, I 
hoped and expected that to be my position. I expected to be able to 
give him the benefit of the doubt and, in light of the deference I 
would normally accord a President's Executive Branch nominees, I fully 
expected to be voting for this nomination.
  In the wake of the hearing, the series of supplemental responses we 
have received and the unanswered questions now in the public record 
about Mr. Olson's involvement in partisan activities like the 
``Arkansas Project,'' I still have my doubts.
  Second is the question of candor and straightforwardness. I have not 
had the sense from his hearing onward that Mr. Olson has been truly 
forthcoming with me or with the Committee. My sense is that for some 
reason he chose from the outset to try to minimize his role in 
connection with the activities of the American Spectator, that he has 
sought to characterize it in the most favorable possible light, that he 
has sought to conclude for us rather than provide us with the facts and 
let us conclude how to view his activities.
  I will cite another example of nonresponsiveness from the record. I 
asked Mr. Olson in light of his testimony at the hearing that he was 
not involved in the origins or management of the `Arkansas Project': 
``Were you involved in advising anyone who was involved in the origins 
or management of the project? If so, what advice did you provide? Were 
you at meetings or social events with anyone involved in the project as 
an originator, manager, reporter, or source for the project? If so, 
what role did you play at these meetings or social events?''
  Mr. Olson's response was, as follows:

       ``I did not realize that a Project of any sort was underway 
     except to the extent that I have indicated. I was in contact 
     at social events with reporters for the magazine and members 
     of the editorial staff, individuals whom I regard as personal 
     friends. I have been at countless social events at which one 
     or more of such persons may have been present. I have not 
     kept records of such meetings, or the nature of the 
     conversations that may have occurred at such meetings that 
     might have involved President Clinton or his contemporaneous 
     or past conduct. I was not playing any particular role at 
     those social events, except that I was probably a host of 
     events at which persons who wrote for or performed editorial 
     services for the American Spectator may have been present. To 
     the extent that it is relevant to your inquiry, I was the 
     best man at the wedding of the editor-in-chief of the 
     American Spectator. I recall that he was also present at my 
     wedding. He is a personal friend and we have had numerous 
     social meetings. He has written at least two books about 
     former President Clinton. I do not interpret your inquiry as 
     asking for the substance of conversations at social events. 
     And I do not recall giving any advice concerning the conduct 
     of the `Project' or its origins or management.

  Literally true? Probably. Responsive? Hardly. At the time of his 
hearing and his answer, Mr. Olson was well aware of the activities of 
the ``Arkansas Project,'' which was operated by the organization for 
which he acted as lawyer, author and contributor, Board Member and 
officer. He had been presented with an audit and played a pivotal role 
in reviewing the examination of its management, methods and results, 
according to Mr. Eastland. His answer, however, steers clear of perjury 
without responding to the concerns being raised. It relies on a lack of 
recollection and is an attempt at distraction.
  Conclusion. As I review this record and the initial 
nonresponsiveness, lack of recall, corrections when confronted with 
specifics, I am left to wonder what happened to ``absolute candor and 
fair dealing.'' In concluding my May 4, 2001, letter to Mr. Olson I 
noted: ``The credibility of the person appointed to be the Solicitor 
General is of paramount importance. When arguing in front of the 
Supreme Court on behalf of the United States Government, the Solicitor 
General is expected to come forward with both the strengths and 
weaknesses of the case, to inform the Court of things it might not 
otherwise know, and to be honest in all his or her dealings with the 
Court. I expect that same responsiveness and cooperation from nominees 
before this Committee.'' My expectations have been disappointed.
  I understand the role of a lawyer-advocate in our legal system, and I 
did not intend to oppose this nomination merely because of Mr. Olson's 
clients and his clients' activities. If confirmed, however, Mr. Olson's 
next client will be the United States of America--and all of us. I want 
to be sure that our nation's top lawyer will see the truth and speak 
the truth fully to the Supreme Court and represent all of our best 
interests in the weighty matters over which the Solicitor General 
exercises public authority. Based upon what I have seen I do not have 
the requisite confidence in Mr. Olson to be able to support his 
nomination. I will vote no.
  I reserve the remainder of my time.
  Mr. HATCH. Mr. President, I agree with my colleague from Vermont that 
the Solicitor General must be a person of the highest integrity. This 
is very important if the Solicitor General is to represent the 
interests of all Americans and to be a valuable assistant to the 
Supreme Court. Mr. Olson himself acknowledged this high standard in his 
testimony to the committee.
  I believe that Mr. Olson has exemplified this high level of candor 
and integrity in all of his dealings with the committee.
  Some of my colleagues have alleged that Mr. Olson misdirected the 
committee in his answers. But this is simply untrue. Mr. Olson told us 
what he did with the American Spectator and the Arkansas Project. He 
wrote several articles for that magazine--copies of these articles were 
all provided to the committee with Mr. Olson's questionnaire. Mr. Olson 
also told us that he was on the board of the magazine and became aware 
of the Arkansas Project in 1997. He has not attempted to hide any of 
these activities from the committee. Rather he has cooperated fully, 
submitting numerous responses to questions from members of the 
Judiciary Committee.
  Mr. Olson enjoys the support of many prominent liberal scholars and 
lawyers, as I have detailed already. Many of his colleagues at the 
Office of Legal Counsel have attested to his fairness and his 
consummate ability to serve as a government lawyer in a nonpartisan 
manner.
  Indeed, many of the allegations against Mr. Olson have arisen from 
reports in The Washington Post. But the Post has advocated the 
confirmation of Mr. Olson.
  Mr. Olson is one of the most qualified nominees ever for the position 
of Solicitor General. I hope that this body will confirm him today so 
that he can begin his important work litigating on behalf of the United 
States.
  Mr. President, I ask unanimous consent to have printed in the Record 
the following letters we have received in support of Mr. Olson. These 
include letters from Robert Bennett, Larry

[[Page 9411]]

Simms, Michael Horowitz, James Ring Adams, Terry Eastland, Floyd 
Abrams, Laurence Tribe, William Webster, R. Emmett Tyrell, Wladyslaw 
Pleszczynski, Douglas Cox, David Henderson, and Stephen Boynton. These 
letters demonstrate the depth and breadth of the support for Mr. 
Olson's nomination.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                     Skadden, Arps, Slate, Meagher


                                                   & Flom LLP,

                                     Washington, DC, May 15, 2001.
     Hon. Orrin G. Hatch,
     Chairman, Senate Judiciary Committee, U.S. Senate, 
         Washington, DC.
       Dear Senator Hatch: I write this letter in support of the 
     appointment of Ted Olson as Solicitor General of the United 
     States.
       Our country is blessed with many wonderful lawyers of all 
     political persuasions. In making judgments about their 
     selection for high office, we must look beyond their 
     political labels and pick the best qualified. The Ted Olson 
     that I know and respect would be a great Solicitor General. I 
     am confident that he will obey and enforce the law with 
     skill, integrity and impartiality. The American people would 
     be most fortunate to have such a skillful and honest advocate 
     representing the United States before the Supreme Court.
       Several years ago when I was the State Chair of the 
     American College of Trial Lawyers for the District of 
     Columbia, it was my responsibility to help select for 
     admission to the College the very best advocates--those who 
     were the most skilled, dedicated and honest. At the top of my 
     list was Ted Olson. Ted, because of his stellar 
     qualifications and reputation for integrity, sailed through 
     the selection process. Those who supported him were liberals, 
     moderates and conservatives of all stripes.
       While I do not have any personal knowledge as to what role, 
     if any, Mr. Olson played in the ``Arkansas Project'' or the 
     full extent of his relationship with the American Spectator, 
     what I do know is that Ted Olson is a truth-teller and you 
     can rely on his representations regarding these matters. 
     Moreover, I agree with Senator Leahy that the credibility of 
     the individual appointed to be Solicitor General is of 
     paramount importance. In my view, based on the many years I 
     have known him, Ted Olson is such an individual. He is a man 
     of great personal integrity and credibility and should be 
     confirmed.
           Sincerely,
     Robert S. Bennett.
                                  ____



                                 Gibson, Dunn & Crutcher, LLP,

                                     Washington, DC, May 15, 2001.
     Re the nomination of Theodore B. Olson to be the Solicitor 
         General of the United States

     Hon. Orrin Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Minority Member, Senate Judiciary Committee, 
         Washington, DC.
       Dear Senators Hatch and Leahy: This letter is being sent to 
     the Committee in connection with the nomination of Theodore 
     B. Olson to become the Solicitor General of the United 
     States. It is written in the context of an apparent 
     controversy regarding the truthfulness of particular 
     testimony given by Mr. Olson at his confirmation hearing 
     before the Committee. I have had no involvement whatsoever in 
     Mr. Olson's preparation for that hearing, I have not reviewed 
     a transcript of that hearing, and I have not discussed the 
     substance of this controversy with Mr. Olson or anyone who 
     may be assisting Mr. Olson in this matter. Indeed, my 
     universe of asserted facts regrading this controversy is 
     limited to my review of two or possibly three articles 
     printed recently in The Washington Post that were brought to 
     my attention by a former associate of Gibson, Dunn in a 
     purely social communication. This letter has not been, nor 
     will it be, reviewed or seen by anyone other than word 
     processing personnel before it is delivered to the Committee, 
     although I am providing a copy of it to Mr. Olson as a matter 
     of courtesy.
       I understand the central concern of the Committee to be the 
     truthfulness and integrity that Mr. Olson would bring to the 
     presentation of the position of the United States in cases 
     brought before the Supreme Court or other cases within the 
     ambit of the authority of the Solicitor General. I share the 
     view that there should be no doubt about the ability and 
     integrity of any nominee to this position to present the 
     Government's position with honesty and integrity. When this 
     sort of issue arises in this town, it is customary for the 
     record to be filled, often to overflowing, with letters 
     extolling the integrity of the nominee whose ability to serve 
     with the requisite integrity has been challenged. I doubt 
     that such testimonials are particularly helpful to the 
     Committee, I would, instead, like to bring to the attention 
     of the Committee three instances in which I worked with Mr. 
     Olson on matters that demanded precisely the kind of 
     intellectual integrity that should be displayed by any 
     Solicitor General and in which Mr. Olson displayed that 
     integrity under what can only be characterized as battlefield 
     conditions. First, I should provide the Committee with some 
     relevant information about myself.
       I graduated from the Boston University School of Law in 
     1973, having spent four years as an officer in the U.S. Navy 
     after my graduation from Dartmouth College in 1966. I grew up 
     in Tennessee, campaigned for the late Senator Albert Gore, 
     Sr. in his last campaign in 1970, and I am a Democrat. In 
     1973-74, I served as a law clerk to Circuit Judge James L. 
     Oakes of the Second Circuit. In 1974-75, I served as law 
     clerk to Associate Justice Byron R. White of the Supreme 
     Court. In 1975-76, I served as Counsel to the Reporters 
     Committee for Freedom of the Press and began teaching a First 
     Amendment seminar as a adjunct professor of the Georgetown 
     Law Center, a course I taught until 1985. In June 1976, I was 
     hired by Antonin Scalia, then the Assistant Attorney General 
     in charge of the Office of Legal Counsel of the Department of 
     Justice (``OLC''), as an attorney-adviser. In 1979, I was 
     appointed Deputy Assistant Attorney General in OLC by 
     Attorney General Bell. I was the only remaining Deputy 
     Assistant in OLC when the first Reagan Administration took 
     office in January, 1981, and I continued to serve in that 
     capacity until February 1985. Mr. Olson was the Assistant 
     Attorney General in charge of OLC from his confirmation in 
     1981 through the fall of 1984. We worked closely together on 
     many issues, and I came to know him well both at the 
     professional and personal level. I joined Gibson, Dunn as an 
     associate in February 1985, became a partner in 1988 and have 
     practiced appellate law with the firm for sixteen years.
       Mr. Olson's handling of three major issues during his 
     tenure as the head of OLC stands out as exemplary of his 
     intellectual integrity. First, and as this Committee is well 
     aware, the courts had not at that time determined the 
     constitutionality of the legislative veto device. In 
     addition, the Republican plank endorsed by President Reagan 
     openly supported the legislative veto device. When he became 
     head of OLC, Mr. Olson studied the question of the 
     constitutionality of the legislative veto device, discussed 
     that question at great length with me and other OLC lawyers, 
     and concluded that legislative veto devices were, root and 
     branch, unconstitutional. He so advised Attorney General 
     Smith, who in turn advised President Reagan and members of 
     the President's staff--many of whom were strongly supportive 
     of legislative veto devices. Mr. Olson convinced the Attorney 
     General that the issue involved was a legal issue, not a 
     political issue, and that the law, not the plank of the 
     Republican Party, had to be followed by everyone involved, 
     including the President himself. This story is chronicled in 
     Chadha: The Story of an Epic Constitutional Struggle by 
     Professor Barbara Hankinson Craig of Wesleyan University, and 
     I strongly commend that book to the Committee as it considers 
     Mr. Olson's nomination.
       Second, and as this Committee is also aware, there was much 
     discussion in the early years of the first Reagan 
     Administration about the enactment of legislation to curb the 
     jurisdiction of the Supreme Court of the United States. Much 
     of that discussion was initiated by the new Republican 
     majority on this Committee. Once again, Mr. Olson was put 
     under substantial pressure to ``play ball'' with the 
     Administration and clear the Administration to endorse such 
     legislation. Once again, he studied the issue, discussed it 
     extensively with me and other OLC lawyers, and concluded that 
     such legislation would probably be held unconstitutional. 
     That opinion was reduced to writing and served as the 
     Administration's response. No such legislation, so far as I 
     can recall, was ever seriously considered after the 
     Administration's position was communicated to Congress.
       Third, in late 1981, I was preparing to travel to The Hague 
     on business when I was asked by Mr. Olson for my views on the 
     substantive issues raised in what ultimately became the 
     famous Bob Jones case. Although I did not have much time to 
     study those substantive issues, I advised Mr. Olson orally 
     that I feel that the Government's position taken in that case 
     was correct and would be vindicated by the Supreme Court. I 
     also advised Mr. Olson that I felt strongly that the Office 
     of the Solicitor General had an obligation to defend the 
     statute involved in that case in the Supreme Court. By the 
     time I returned from The Hague, the Bob Jones fiasco was 
     playing itself out, with a decision having been made--over 
     Mr. Olson's strong objections--that the statute would not be 
     defended by the Solicitor General. The Supreme Court 
     ultimately appointed William Coleman to defend the statute in 
     that court, and Mr. Olson's position was vindicated by, as I 
     recall, an almost unanimous decision.
       This letter is written off the top of my head, so the 
     Committee will have to forgive me for any error in any of the 
     facts stated above that I may have made, but there is no 
     error in my conclusion that these three examples paint the 
     portrait of a lawyer scrupulously devoted to the law and 
     having the personal and intellectual integrity to place the 
     law above the politics of Washington at considerable personal 
     risk. It is that quality, after all, that it seems to me one 
     should look

[[Page 9412]]

     for in considering the nomination of any person to be the 
     Solicitor General of the United States. Mr. Olson is a fierce 
     advocate, but he is an honest advocate and a person whose 
     integrity and devotion to the law and the rule of law have 
     survived challenges to which very few public servants are 
     ever subjected.
           Very truly yours,
     Larry L. Simms.
                                  ____


   Statement of Michael J. Horowitz to the Senate Judiciary Committee

       I am a Senior Fellow and Director of the Project for Civil 
     Justice at the Hudson Institute. I served as General Counsel 
     of OMB under President Reagan. I have known Ted Olson for 20 
     years and have the highest regard for him and for his 
     professionalism, intelligence and integrity.
       In fact, I have always found Mr. Olson's word to be 
     absolutely reliable. I have disagreed with Mr. Olson from 
     time to time on issues of policy, but I have never met a 
     person more meticulously scrupulous on matters of principle 
     or honesty.
       Never.
       I have read Mr. Olson's testimony in response to Senator 
     Leahy's question regarding the ``Arkansas Project,'' 
     delivered during Mr. Olson's confirmation hearing. His 
     testimony to Senator Leahy was, in all respects that I am 
     aware, wholly accurate. Specifically, I know of no respect in 
     which Mr. Olson was involved in the Project's ``origin or its 
     management.''
       I attended one meeting in Mr. Olson's presence at which the 
     matter discussed was legal representation for David Hale, who 
     was facing Congressional testimony and was in need of 
     distinguished Washington counsel. At that meeting--at which 
     no mention I know of was made of the ``Arkansas Project'' or 
     any term like it--the subject under discussion was whether 
     Mr. Olson's firm would serve as counsel to Mr. Hale. Put 
     otherwise, I have never heard Mr. Olson discuss or imply that 
     he was involved in managing or directing either anything 
     called the Arkansas Project or any of the investigative 
     journalistic inquiries of his client, the American Spectator 
     Magazine.
       In making the above statement, I note that I am aware of 
     nothing to suggest that the American Spectator violated the 
     law. Likewise, I believe it clear that the American 
     Spectator's journalistic and investigative activities were 
     and are fully protected by the First Amendment.
                                  ____

       I was hired in late 1993 by the American Spectator to be 
     the lead writer for what has come to be known as the 
     ``Arkansas Project.'' I originally started as a free-lance 
     writer, but was hired onto the staff of the magazine in 1994, 
     where I remained until January 1, 1999. My numerous articles 
     in the Spectator, based largely on my personal reporting in 
     Arkansas, analyzed many different aspects of Whitewater and 
     related controversies. Over the four years or so that I 
     worked for the Spectator, I traveled to Arkansas on roughly a 
     monthly basis.
       I understand that David Brock, who for a period was another 
     writer for the magazine, has alleged that Mr. Theodore Olson 
     directed or supervised the ``Arkansas Project.'' As stated 
     above, I was the lead writer on the Project, and Mr. Olson 
     had absolutely no role in guiding my development of stories 
     for the magazine or in managing my work. Indeed, I believe I 
     only spoke to Mr. Olson once during the years in question, at 
     the end of a widely attended dinner at a Washington, D.C. 
     hotel, sometime in 1998, I believe. I sought him out to ask a 
     general question about recent, publicly reported developments 
     in the Webster Hubbell legal case. It was my impression at 
     the time that he did not recognize me, and I had to explain 
     who I was; we spoke only for about five minutes. Given that 
     we had no other meetings, conversations or other 
     communications about my work, it is false and wrong to assert 
     that Mr. Olson had any role whatsoever in managing or 
     directing what is referred to as the ``Arkansas Project.''
       May 14, 2001.
     James Ring Adams.
                                  ____

                                         McLean, VA, May 14, 2001.
     Hon. Orrin Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch: I am writing to comment on matters of 
     possible relevance to President Bush's nomination of Theodore 
     B. Olson to be Solicitor General.
       I became publisher of The American Spectator in November 
     1997. I was authorized by the board of directors to conduct a 
     review of what has been called the ``Arkansas Project.'' I 
     completed the review in 1998 and reported my findings to the 
     board. I also assisted investigators working under the 
     Whitewater independent counsel, who were charged with looking 
     into certain issues involving the project.
       As I discovered soon after I began my review, the project 
     was conceived in the fall of 1993 by Editor-in-Chief R. 
     Emmett Tyrrell, Jr., and Richard Larry, then the executive 
     director of the Scaife foundations. The point of the project 
     was to place in Arkansas individuals who would look into 
     allegations involving then Governor Bill Clinton and relate 
     their findings to the magazine's editors and writers for 
     their review. The project contemplated the publication of 
     investigative pieces. Two Scaife foundations were prepared to 
     underwrite the project, which in grant correspondence was 
     called ``the editorial improvement project.''
       The project was commenced in November 1993. Individuals 
     were duly retained to conduct the ``on-the-ground'' 
     researches in Arkansas, and the first editorial result of the 
     project was an article on an aspect of Whitewater, which was 
     published in February 1994. The project continued through the 
     early fall of 1997, and it produced a total (by my count) of 
     eight articles. The Scaife foundations contributed a total of 
     approximately $2.3 million, more than $1.8 million of which 
     underwrote the work of the individuals in Arkansas.
       In my review, I found no evidence that Mr. Olson was 
     involved in the project's creation or its conduct. My own 
     sense is that Mr. Olson did not become aware of the project 
     until June 1997, when disagreements arose between the 
     magazine's then publisher and Mr. Larry over project 
     expenditures. At that time, Mr. Tyrrell, who was also 
     chairman of the board, asked Mr. Olson, a board member since 
     1996, for his assistance in resolving the dispute. When I 
     came aboard as publisher, Mr. Olson agreed that a review of 
     the project was necessary. Throughout my review, which 
     included an accounting of the monies spent on the project as 
     well as an examination of its management, methods, and 
     results, I had Mr. Olson's strong support.
       Finally, I should add that, based upon my knowledge of the 
     magazine's financial records in general and those of the 
     Scaife-funded project in particular, Mr. Olson never received 
     any payments from The American Spectator for his 
     representation of David Hale.
       I hope these observations are of assistance.
           Sincerely yours,
     Terry Eastland.
                                  ____



                                      Gahill Gordon & Reindel,

                                      New York, NY, March 4, 2001.
     Re Ted Olson

     Hon. Patrick J. Leahy,
     Russell Senate Office Building,
     Wahsington, DC.
       Dear Pat: I'm not sure if Ted Olson needs a boost from the 
     other side or not for Solicitor General, but I did want to 
     offer one. Ted is just as conservative as his writings and 
     clientele suggest. But on the assumption that Larry Tribe is 
     not high on the appointment list for this Administration, I 
     did want to say that I've known Ted since we worked together 
     on a Supreme Court case--Metromedia v. San Diego--20 years 
     ago and that I've always been impressed with his talent, his 
     personal decency and his honor. He would serve with 
     distinction as Solicitor General.
           Sincerely,
     Floyd Abrams.
                                  ____



                                Harvard University Law School,

                                     Cambridge, MA, March 5, 2001.
     Hon. Patrick J. Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Pat: As one who knows Ted Olson and disagrees with him 
     on many important issues, I nonetheless write in support of 
     his confirmation as Solicitor General.
       An explanation may be called for. After all, Ted was the 
     oral advocate who opposed me in the United States Supreme 
     Court in the first of the two arguments between Vice 
     President Gore and now President (then-Governor) Bush, and 
     Ted's were the briefs that I sought to defeat in the briefs I 
     wrote and filed for Vice President Gore in both of the two 
     Bush v. Gore cases. Ted's views of equal protection, of 
     Article II, and of 3 U.S.C. Sec. 5, were views I believed, 
     and continue to believe, are wrong. Although his views of 
     Article II and of 3 U.S.C. Sec. 5 ultimately convinced only 
     three Justices, his overall approach to the case won the 
     presidency for his client. It surely cannot be that anyone 
     who took that prevailing view and fought for it must on that 
     account be opposed for the position of Solicitor General. 
     Because Ted Olson briefed and argued his side of the case 
     with intelligence, with insight, and with integrity, his 
     advocacy on the occasion of the Florida election litigation--
     profoundly as I disagree with him on the merits--counts for 
     me as a ``plus'' in this context, not as a minus. That his 
     views coincide with those of a current Court majority on a 
     number of vital issues as to which my views differ deeply 
     should not rule him out.
       I am willing to believe that the five Justices who in 
     essence decided the recent presidential election thought they 
     were genuinely acting to preserve the rule of law and to 
     protect the constitutional processes of democracy from being 
     undermined by a post-election recount procedure that they 
     viewed as chaotic, lawless and essentially rigged. I believe 
     that view was profoundly misguided and that the Court's 
     majority deserves severe criticism not only for its 
     misconception of reality but also for its breathtaking 
     failure to explain its legal conclusions in terms that could 
     at least make sense to an informed but detached observer. But 
     I do not lay that failing at Ted Olson's feet; he acted as a 
     responsible (if also misguided) advocate. The blunder was the 
     Court's own doing.
       If we set Bush v. Gore aside, what remains in Ted's case is 
     an undeniably distinguished

[[Page 9413]]

     career of an obviously exceptional lawyer with an enormous 
     breadth of directly relevant experience. Although part of 
     that career has been devoted to causes with which I disagree, 
     his briefs and arguments have treated the applicable law and 
     the underlying facts honestly and forthrightly, not 
     disingenuously or deceptively. Ted seems to me capable of 
     drawing the clear distinction that any Solicitor General who 
     has been on the ramparts on various contentious issues must 
     draw between his or her own aspirations for the directions in 
     which the law should be pushed, and his or her best 
     understanding of where the law presently is and where the 
     Supreme Court ought to be nudging it, applying criteria less 
     personal and more inclusive than those driving any individual 
     advocate. Put simply, I write this letter in Ted Olson's 
     support in the expectation, and on the understanding, that 
     his testimony during his confirmation hearing, and the other 
     evidence that the Senate Judiciary Committee will gather, 
     will show him to be both able and willing not simply to 
     articulate the Administration's or his own legal philosophy 
     but to represent well the United States of America as his 
     ultimate client before the Supreme Court, keeping a firm grip 
     on what is best for that client and for the Constitution, not 
     simply for the President's philosophical agenda.
       Of course, any Solicitor General must speak for the 
     Administration he or she represents and must, within limits, 
     espouse its views. And any advocate must, to some degree, 
     draw on his or her own views in deciding what to argue and 
     how. But the special responsibility of the Solicitor General, 
     both to the Court and to the country, requires an advocate 
     with the capacity and the character, on crucial occasions, to 
     rise above his or her Administration's pet theories and to 
     advise the Court in ways that may not always advance the 
     political priorities of the government. Sometimes the 
     Solicitor General must defend the actions of Congress even 
     when those actions were opposed by the Executive Branch. 
     Sometimes the Solicitor General must decline to defend the 
     actions of Congress, even when supported by the Executive, 
     when they plainly conflict with the Constitution. Myriad 
     examples could be given, but the general point is simple: 
     Some advocates are too bound up in their own views, and in 
     their duty to their immediate clients narrowly conceived, to 
     act as counsel in this broader and higher sense. Some are too 
     blinded by their own perspectives to see beyond them. Having 
     observed Ted Olson in a number of situations, and having 
     watched his career from afar, I would not expect him to be in 
     that troublesome category. I would expect him, rather, to 
     have the open-mindedness and breadth of perspective to meet 
     the higher standard I am articulating here. My letter of 
     support, at any rate, is premised on that expectation, and on 
     the belief that the confirmation hearings will bear out that 
     optimistic prediction.
       In the end, only Ted Olson's performance in the role of 
     Solicitor General will prove whether I am right or wrong in 
     this hopeful evaluation. My strong sense, however, based on 
     what I now know, is that, as Solicitor General, Ted Olson 
     will perform his role with honor, and with distinction.
           Best wishes always,
     Laurence H. Tribe.
                                  ____

                                     Washington, DC, May 14, 2001.
     Hon. Orrin G. Hatch,
     Chairman, Judiciary Committee, U.S. Senate, Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Minority Member, Judiciary Committee, U.S. Senate, 
         Washington, DC.
       Dear Chairman Hatch and Ranking Minority Member Leahy: I 
     write in support of the nomination of Theodore B. Olson by 
     President Bush to be Solicitor General of the United States. 
     I do so having the utmost confidence in his ability, his 
     loyalty to country, his fidelity to the Constitution and his 
     personal integrity.
       My professional and personal association with Ted Olson 
     began 20 years ago when he joined the Reagan administration 
     and served as Assistant Attorney General, Office of Legal 
     Counsel under Attorney General William French Smith. I was, 
     at that time, Director of the Federal Bureau of 
     Investigation. Few positions in our government are more 
     sensitive or important to our government and the 
     administration of justice than is the O.L.C. Ted carried out 
     his responsibilities with a calm and steady hand, reflecting 
     legal acumen and common sense, both important attributes for 
     the ``Attorney General's lawyer''. In staff meetings his 
     input and advice seemed consistently sound.
       In private practice I have had occasion to work with Ted on 
     some matters of common interest and have found the same high 
     level of competence and judgment. He is one of our nation's 
     foremost appellate advocates and has earned widespread 
     admiration for his analytical and advocacy skills. If he is 
     confirmed, he will serve his country and the cause of equal 
     justice under law with great dedication.
       Ted has been a member of the Legal Advisory Committee of 
     the National Legal Center for the Public Interest, which I 
     chair. His periodic review of the work of the Supreme Court 
     has been insightful and helpful.
       On a more personal note, I have known Ted as a thoughtful 
     and caring friend for many years. I believe him to be honest 
     and trustworthy and he has my full trust. He is the kind of 
     person I would want to turn to for help, professional or 
     otherwise, in time of need.
       Having survived five Senate confirmations of my own, I have 
     a full awareness of the Senate's solemn responsibility to 
     advise and consent in these matters. I do hope you will give 
     some weight to the opinions of those who know and respect Ted 
     Olson. The President's choice is a very good one. I would not 
     have written this letter if I did not firmly believe this to 
     be true.
           Respectfully,
     William H. Webster.
                                  ____



                                       The American Spectator,

                                      Arlington, VA, May 14, 2001.
     Hon. Orrin G. Hatch,
     U.S. Senate, Washington, DC.
       Dear Senator Hatch: Contrary to the Washington Post's May 
     11 story by Thomas B. Edsall and Robert G. Kaiser, we never 
     ``said that [Arkansas] project story ideas, legal issues 
     involving the stories produced by the project and other 
     directly related matters were discussed with Olson by staff 
     members, and at dinner parties of Spectator staffers and 
     board members.'' Apparently they got the idea from David 
     Brock, Edsall's main source on the Olson matter, and an 
     individual who has repeatedly acknowledged his deep bias 
     against Olson and his former employer The American Spectator. 
     In quoting him, the reporters might have mentioned his 
     compromised credentials.
       Although Mr. Brock has lately claimed to have been part of 
     the so-called Arkansas Project, he was not. The record on 
     that is indisputable. During his time at the magazine it was 
     clear to everyone concerned--he was very public about this--
     that he was not part of the project. His well-known 
     ``Troopergate'' story originated and was completed before any 
     such project existed. If he spoke to Mr. Olson during those 
     years it was as a reporter pursuing his own stories and not 
     as a representative of a ``project'' he distanced himself 
     from. Pleszczynski made that clear to Edsall. Brock's present 
     claim that he was calling Olson as part of the ``project'' is 
     a deceit.
       What is more, if Mr. Olson's firm, Gibson, Dunn and 
     Crutcher, was paid from project funds (like all recipients of 
     checks from The American Spectator), the firm would not have 
     known which internal account the magazine used for its 
     payments. For all Gibson, Dunn and Crutcher knew, the 
     magazine was paying it from funds derived from general 
     income.
       Mr. Olson's statements that he was ``not involved in the 
     project in its origin or its management'' and that he was 
     ``not involved in organizing, supervising or managing the 
     conduct of [the magazine's investigative] efforts'' are 
     accurate and thus truthful.
       One final point, the precedent set by politicians seeking 
     to probe the methods of payment and of reportage practiced by 
     journalists has a chilling effect on the First Amendment. We 
     would hope other journalists would recognize this danger to 
     journalistic endeavors.
           Sincerely,
     R. Emmett Tyrrell, Jr.,
       Editor-in-Chief.
     Wladyslaw Pleszczynski,
       Editor, The American Spectator Online.
                                  ____

       I am a partner in the law firm of Gibson, Dunn & Crutcher 
     LLP. I became affiliated with the firm, originally as an ``of 
     counsel'' employee, in 1993. Starting in 1994, I worked with 
     Theodore Olson on certain legal matters for the firm's 
     client, the American Spectator. That legal work included 
     legal research regarding criminal laws potentially implicated 
     by allegations of certain conduct by public officials, 
     including President and Mrs. Clinton, as reported in the 
     major media. That research was incorporated into an article 
     that the American Spectator published in 1994. The magazine 
     published the article under the by-line of ``Solitary, Poor, 
     Nasty, Brutish and Short,'' an obviously fictional law firm 
     drawn from the famous quote from Hobbes, that the magazine 
     had listed for many years on its masthead as its legal 
     counsel. It was, however, widely known that Mr. Olson and I 
     had prepared the material in the article.
       In addition to periodic legal work for the client, Mr. 
     Olson and I over the years co-wrote similar satiric pieces 
     involving legal aspects of various matters involving the 
     Clinton Administration. Some, but not all, of those pieces 
     appeared under the ``Solitary, Poor'' by-line.
       During my work with Mr. Olson for the American Spectator, I 
     never heard the phrase ``Arkansas Project'' until it had 
     become the subject of media reporting. I am not aware of any 
     fact that would support or in any way credibly suggest that 
     Mr. Olson was involved in the origin, management or 
     supervision of the investigative journalism projects funded 
     by one of the Scaife foundations that became know as the 
     ``Arkansas

[[Page 9414]]

     Project.'' In drafting our articles, I never spoke with 
     anyone at the American Spectator to obtain any facts, relying 
     instead on already-published media reports, and legal 
     resources such as statutes, congressional reports, and the 
     like.
       I met David Brock years ago, and in the early 1990s on 
     occasion I would see and speak to him at parties in the 
     Washington, DC area. I have not spoken to Mr. Brock for 
     years. Starting some time ago, Mr. Brock developed a marked, 
     publicly-expressed animus toward Mr. Olson and his wife.
       I chose to become affiliated with Gibson, Dunn primarily 
     because of Mr. Olson. Although I did not know Mr. Olson 
     personally before I interviewed with the firm, he has a 
     reputation as one of the best lawyers in Washington, a 
     rigorous and demanding lawyer with a record of unflinching 
     devotion to principle. In the years since I became affiliated 
     with the firm, I have worked closely with Mr. Olson, 
     including participation on numerous cases for the firm's 
     clients. I can personally vouch for his extremely high 
     professional standards; for his refusal to accept second-best 
     efforts from himself or anyone around him; and for his 
     fairness. I can also vouch, without reservation, for his 
     great integrity.
       In my view, he will make an excellent Solicitor General, 
     and the Members of the Judiciary Committee should vote to 
     confirm him with confidence.
     Douglas R. Cox.
                                  ____

       We were the two individuals charged by the American 
     Spectator with implementing what has come to be called the 
     ``Arkansas Project,'' an effort to support investigative 
     journalism in Arkansas that was specially funded by Richard 
     Mellon Scaife. (Dave Henderson also served for a while on the 
     Spectator Board.)
       In connection with our investigative research for this 
     journalistic project, we made numerous trips to Arkansas and 
     elsewhere to speak first-hand to witnesses. Nothing that we 
     did in connection with the ``Arkansas Project'' broke the 
     law. Mr. Shaheen, a special counsel, reached the same 
     conclusion after an extended investigation. Rather, we were 
     conducting the same kind of investigative journalism, talking 
     to witnesses, reviewing documents, that many journalists do 
     every day. Such activities were not only lawful, but 
     encouraged in an open and free democracy, and fully protected 
     by the First Amendment. There was nothing at all improper 
     about the investigative fact work that we performed for the 
     American Spectator.
       In performing our investigative work for the American 
     Spectator, we were not directed or managed in any way by 
     Theodore Olson. He did not participate, nor was he asked to 
     participate, in either the planning or conduct of the 
     ``Arkansas Project.'' Contrary assertions, made by those 
     lacking personal knowledge and with a political or personal 
     agenda, are simply false.
       May 15, 2001.
                                               David W. Henderson.

  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, on behalf of Senator Hatch, I yield time 
to the distinguished Senator from Pennsylvania.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I thank my colleague from Alabama for 
yielding time to me. I have sought recognition to support the 
nomination of Theodore Olson to be Solicitor General of the United 
States.
  Mr. Olson comes to this position with an excellent academic and 
professional background. He received his law degree from the University 
of California at Berkeley in 1965 after having received a bachelor's 
degree from the University of the Pacific in 1962. He practiced law 
with the distinguished firm of Gibson, Dunn, and Crutcher from 1965 to 
1971 as an associate, and then as a partner for almost a decade, until 
1981. And then from 1984 to the present time--he was Assistant Attorney 
General, legal counsel, for the Department of Justice from 1981 to 
1984. He came in with the administration of President Reagan.
  I was elected in the same year, and I knew of his work, having served 
on the Judiciary Committee beginning immediately after taking my oath 
of office after the 1980 election.
  He is a real professional. He has argued some of the most important 
cases before the Supreme Court of the United States.
  On December 11, 2000, he argued the landmark case of Gov. George W. 
Bush v. Vice President Albert Gore where the decision of the Supreme 
Court of the United States essentially decided the conflict on the 
Florida election. I was present that day to hear that historic argument 
and can attest personally to his competency and his professionalism.
  There have been some concerns about his partisanship. I am confident 
Mr. Olson can separate partisanship from his professional 
responsibilities as Solicitor General of the United States. It is not 
surprising that President Bush would appoint a Republican to be 
Solicitor General, nor is it surprising that President Bush would 
appoint Ted Olson to this important position in light of Mr. Olson's 
accomplishments, his demonstration of competency, and his assistance to 
President Bush on that major case.
  Some questions have been raised as to some answers Mr. Olson gave at 
the confirmation hearing. A request was made to have an investigation 
of some of what Mr. Olson did. I took the position publicly in 
interviews and then later in the Judiciary Committee executive session 
when we considered Mr. Olson's nomination, saying I was prepared to see 
and support an investigation if there was something to investigate but 
that there had not been any allegation of any impropriety on Mr. 
Olson's part in terms of any specification as to what he was supposed 
to have said that was inconsistent or what he was supposed to have said 
that was not true.
  I am not totally without experience in investigative matters. But a 
starting point of any investigation has to be an allegation, something 
to investigate. That was not provided. I called at that hearing for 
some specification. If you make a charge, even in a civil case, there 
has to be particularity alleged, there has to be some specification as 
to what the impropriety was, let alone wrongdoing in order to warrant 
an investigation.
  I said at the hearing, although there was a certain amount of 
interest in moving the nomination ahead last Thursday, that I would 
support an investigation and would not rush to judgment if there was 
something to investigate. But nothing was forthcoming to warrant an 
investigation. One of the Judiciary Committee members said, well, Mr. 
Olson was not forthcoming at the Judiciary Committee hearing. I 
attended that hearing in part, and there were very few Senators there. 
But if there was some concern that Ted Olson wasn't forthcoming, the 
time to go into it was at the hearing or, if not at the hearing, Mr. 
Olson was available thereafter.
  I asked the Senator who raised the question about his not being 
forthcoming if he had talked to Mr. Olson, and the answer was that he 
had not. So based on the record, it is my conclusion that any of the 
generalized charges as to Mr. Olson haven't been substantiated at all, 
haven't been raised to the level of specification to warrant any 
proceeding or any investigation.
  I dare say that if those on the other side of the aisle had sought to 
block this nomination from coming up today, there were ample procedural 
opportunities for them to do just that.
  So on this state of the record, on the state of Ted Olson's excellent 
academic and professional record, and his established expertise as an 
advocate before the Supreme Court of the United States, and 
understanding the difference between partisanship when he is in a 
partisan context as opposed to professionalism when he is representing 
the United States of America before the Supreme Court, I intend to 
support this nomination and vote aye.
  I thank the Chair. I thank my friend from Alabama, the distinguished 
Senator from Alabama. I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. I thank the Senator from Pennsylvania for his 
outstanding remarks. He does, indeed, have a passion for truth and he 
pursues those he believes are not telling the truth aggressively in his 
examination and defends those he thinks are being unfairly accused. I 
have seen his skill in committee hearings many times. Senator Specter 
raised a number of questions about the allegations that were made about 
Mr. Olson. But his questions concerning the merit of the allegations 
against Mr. Olson were never answered. In fact, he simply asked: 
``Precisely what is it you say he was

[[Page 9415]]

testifying falsely about?'' And I don't believe a satisfactory answer 
to this day has been given to that question.
  Mr. President, I support Ted Olson's nomination to be the next 
Solicitor General. I commend Senators Leahy, Daschle, Hatch, and Lott 
for reaching an agreement to have the Olson nomination voted on today. 
Certain charges were made, but they have been investigated and, in my 
view, have been found wholly without merit. The charges were raised in 
a newspaper article in the Washington Post the day that the vote was 
scheduled on Mr. Olson's nomination. Some of the Senators questioned 
the article.
  Subsequently, after the facts were examined, the Washington Post 
endorsed Ted Olson for this position. Nonetheless, Senator Hatch agreed 
to delay further and allow the matter to be examined even more 
thoroughly. That is why we are here today. Now that most of the 
partisan rhetoric has receded, I am glad the Senate will follow the 
moderate and wise voices of Professor Laurence Tribe, Robert Bennett, 
Beth Nolan, Floyd Abrams, and Senator Zell Miller in moving this 
nomination to confirmation.
  The Solicitor General is the most important legal advocate in the 
country. The job has been called the greatest lawyer job in the world. 
As U.S. attorney for almost 15 years, I had the honor of standing up in 
court on a daily basis to say: ``The United States is ready, Your 
Honor.'' I spoke for the United States in its Federal district court 
normally in the Southern District of Alabama. But what greater thrill 
could there be, what greater honor than to stand before the great U.S. 
Supreme Court and represent the greatest country in the history of the 
world and be the lawyer for that country in that great Court? Ted Olson 
is worthy of that job. He and his subordinates will shape the arguments 
in cases that come before the Federal appellate courts and, most 
importantly, before the Supreme Court of the United States. In this 
fashion, law is shaped slowly and carefully one case at a time over a 
period of years.
  I note, however, that I have a slight disagreement with my 
distinguished colleague from Vermont on the question of this being an 
extraordinarily more sensitive a position than others. While it is a 
position that requires great skill and legal acumen, the truth is that 
the Solicitor General does not do a lot of things independently. 
Basically, the Solicitor General asks the Supreme Court, or perhaps 
some other lesser court if he chooses, to rule one way or the other. He 
is not making decisions independently about policies or procedures such 
as an FBI Director would make or the Deputy Attorney General or the 
Attorney General. He is basically in court constrained by the justices 
before whom he appears. And it is, as everyone knows, critical that a 
Solicitor General maintain over a period of years credibility with the 
Supreme Court. Ted Olson, as a regular practitioner before the Supreme 
Court of the United States, understands that and will carefully husband 
his credibility with that Court as he has always done.
  The Solicitor General must be a constitutional scholar of the first 
order, a lawyer and legal advocate with broad and distinguished legal 
experience, and must possess unquestioned integrity. Ted Olson excels 
in each of these categories.
  First, Mr. Olson is a constitutional scholar of the highest order. He 
has studied and written about the Federalist Papers, the Framers, and 
the Constitution. He earnestly believes in the Constitution's design of 
limited and separated powers. He sincerely and deeply believes that the 
States cannot deny any person equal protection of the laws. He 
understands that history and theory of our fundamental law. There is no 
doubt about that, in my opinion. And he has been involved with it all 
of his professional career--in Government and out of Government, 
including many successful years as a partner in one of the great law 
firms in the country: Gibson, Dunn & Crutcher.
  Second, Mr. Olson's distinguished experience as a lawyer demonstrates 
his understanding that the Constitution has real and meaningful impact 
on the lives of ordinary Americans. He has applied constitutional 
theory as an Assistant Attorney General for the Office of Legal 
Counsel. That is a critical position in the Department of Justice that 
provides legal counsel in the Department of Justice and to all 
governmental agencies, usually including the President of the United 
States. He held that office in previous years. He has done this in his 
own practice when advocating before the courts, including the Supreme 
Court of the United States.
  In Aetna Life Insurance Company v. Lavoie, he advocated the due 
process rights of litigants who faced a judge who had a conflict of 
interest in the case but would not recuse himself. He represented those 
litigants to ensure that they would get a fair judge. In Rice v. 
Cayetano, he advocated the voting rights of those excluded because of 
their race. And in Morrison v. Olson, he advocated the position that 
the separation of powers principle required prosecutors to be appointed 
by the executive branch, a position that this entire Congress has now 
come to embrace many years later. That was a courageous position he 
took. Ultimately, Mr. Olson won because his position was validated by 
subsequent events.
  Mr. Olson had a legal career which has, to a remarkable degree, 
placed him as a key player in many of the important legal battles of 
our time. It is remarkable, really. These cases, many intense, have 
enriched him. They have enhanced his judgment and wisdom. I can think 
of no one better prepared to help the President of the United States 
and the Attorney General deal with complex, contentious, and important 
cases that are surely to come as the years go by.
  When he was before the Judiciary Committee, I asked him: ``Mr. Olson, 
are you prepared to tell the President of the United States no?''
  Presidents get treated grandly, like corporate executives and 
Governors, and they want to do things, and they do not want a lawyer 
telling them they cannot do it. But sometimes there has to be a lawyer 
capable of telling the President ``no.'' ``No, sir, you cannot do that. 
The law will not allow that. I am sorry, Mr. President, we will try to 
figure out some other way for you to do what you want to do; you cannot 
do that.''
  I believe, based on Ted Olson's experience, his closeness to the 
President, the confidence the President has in him, he will be able to 
do that better than any person in America.
  Finally, Mr. Olson is a man of unquestioned integrity. For example, 
when asked on numerous occasions to criticize the justices of the 
Florida Supreme Court in Bush v. Gore litigation, he always declined. 
He always respected the justices and their court, and even if he 
disagreed with their legal opinion--and his position was later 
validated by the U.S. Supreme Court. Mr. Olson's conduct in the most 
famous case of this generation, as well as his reputation, won him the 
endorsement of his adversary, Professor Laurence Tribe the famed and 
brilliant advocate for Al Gore.
  Indeed, a President assembles an administration, and he is entitled 
to have around him people in whom he has great confidence, people whom, 
in the most critical points of his administration, he trusts to give 
him advice on which he can rely and make decisions.
  What greater validation is there than perhaps the greatest lawsuit of 
this century for the Presidency of the United States, to be decided by 
the Court, and whom did President Bush, out of all the lawyers in 
America, choose? Did he want someone who was purely a political hack, 
someone who was a political guru, or did he want the best lawyer he 
could get to help him win the most important case facing the country 
maybe of the century? Whom did he choose? Isn't that a good reflection 
on Ted Olson's reputation that the President chose him, and it is not 
surprising that Al Gore chose someone of the quality of Laurence Tribe, 
two great, brilliant litigators in the Supreme Court that day.
  Mr. Olson has written and he has thought deeply about constitutional 
law. He is not a professor, however, as

[[Page 9416]]

many of our Solicitors General have been. He has been a lawyer involved 
in Government in all kinds of issues. During that time, he has gained 
extraordinary insight, skill, and knowledge about how Government works. 
He has incredibly unique and valuable qualities to bring to this 
office.
  There is simply no better lawyer and no better person to fulfill the 
awesome responsibilities of the Solicitor General of the United States 
than Ted Olson. It is my privilege to support him and advocate his 
nomination.
  I know there are a number of questions people will raise and have 
raised, but I believe, as Senator Specter pointed out in our hearings, 
we have to see where the beef is, what is the substance of the 
complaints against him.
  One of the issues that came up was that he minimized his involvement 
in the ``Arkansas Project'' and that he did not tell the truth before 
the committee. I have the transcript of the testimony he gave.
  This is what happened at the committee. He was sitting right there in 
the room testifying before us. Senator Leahy went right to the heart of 
the matter, as he had every right to do. This was his question: ``Were 
you involved in the so-called Arkansas Project at any time?''
  The answer:

       Mr. Olson: As a member of the board of directors of the 
     American Spectator, I became aware of that. It has been 
     alleged that I was somehow involved in that so-called 
     project. I was not involved in the project in its origin or 
     its management.

  No one found fault with that. That statement has not been disputed to 
this day. There is certainly no evidence to say otherwise.
  He stated:

       I was not involved in the project in its origin or its 
     management. As I understand it, what that was was a 
     contribution by a foundation to the Spectator to conduct 
     investigative journalism. I was on the board of the American 
     Spectator later on when the allegation about the project was 
     simply that it did exist. The publisher at that time, under 
     the supervision of the board of directors, hired a major 
     independent accounting firm to conduct an audit to report to 
     the publisher and, therefore, to the board of directors with 
     respect to how that money was funded. I was on the board at 
     that time.

  Mr. Olson was on the board when they conducted an investigation that 
the board decided to do.
  Mr. Olson continued his answer in Committee:

       As a result of that investigation, the magazine, while it 
     felt it had the right to conduct these kinds of 
     investigations, decided that it was not in the best interest 
     of the magazine to do so. It ended the project. It 
     established rules to restrict that kind of activity in the 
     future.

  Senator Leahy interrupted him there. If he did not say enough, 
Senator Leahy had every opportunity to ask him more questions. He was 
still talking about it when Senator Leahy interrupted him and stopped 
him. The transcript shows:

       . . . to restrict activities of the kind in the future and 
     put it--
       Senator Leahy:
       And Senator Leahy asked some other questions about the same 
     matter which Mr. Olson answered and that I do not think have 
     been credibly disputed either. I submit that the man told the 
     truth absolutely, indisputably.

  I really believe, as Senator Specter said in Committee, we ought to 
be responsible around here. We ought to be careful about alleging that 
a nominee for a position such as Solicitor General of the United States 
is not being honest or is somehow being dishonest about what he says. I 
do not believe there are any facts to show that. That is why I care 
about how we proceed, and I am glad an agreement was reached that the 
matter could come forward.
  On the question of Mr. Olson's integrity, we have a number of people 
who vouch for him. Let's look at these Democrats.
  Laurence Tribe, the professor who litigated against him in Bush v. 
Gore, said:

       It surely cannot be that anyone who took the prevailing 
     view [in Bush v. Gore] and fought for it must on that account 
     be opposed for the position of Solicitor General. Because Ted 
     Olson briefed and argued his side of the case with 
     intelligence, with insight, and with integrity, his advocacy 
     on the occasion of the Florida election litigation--
     profoundly as I disagree with him on the merits--counts for 
     me as a ``plus'' in this context, not a minus. If we set Bush 
     v. Gore aside, what remains in Ted's case is an undeniably 
     distinguished career of an obviously exceptional lawyer with 
     an enormous breadth of directly relevant experience.

  I certainly agree with that. That is from Al Gore's lawyer.
  Walter Dellinger, former Solicitor General under President Clinton, 
said when Ted Olson was at the Office of Legal Counsel he ``was viewed 
as someone who brought considerable integrity to the decision-making.''
  Beth Nolan, former Clinton White House counsel and Reagan Department 
of Justice Office of Legal Counsel attorney in a letter said:

       [W]e all hold Mr. Olson in a very high professional and 
     personal regard, because we believe that he made his 
     decisions with integrity, after long and hard reflection. We 
     cannot recall a single instance in which Mr. Olson 
     compromised his integrity to serve the expedients of the 
     [Reagan] administration.




  Floyd Abrams, esteemed first amendment lawyer, stated in March 2001:

       I've known Ted since we worked together on a Supreme Court 
     case--Metromedia v. San Diego--20 years ago and . . . I've 
     always been impressed with his talent, his personal decency 
     and his honor. He would serve with distinction as Solicitor 
     General.

  Harold Koh, former Clinton Administration Assistant Secretary of 
State in February of this year:

       Ted Olson is a lawyer of extremely high professional 
     integrity. In all of my dealings with him, I have seen him 
     display high moral character and a very deep commitment to 
     upholding the rule of law.
  Robert Bennett, attorney for former President Bill Clinton during a 
lot of this litigation and impeachment matters also supports Mr. 
Olson's nomination. He is a well-known defense lawyer and certainly 
very close to President Clinton. He came to the markup when we voted on 
this in committee and sat throughout the markup. This is what he wrote 
to the Committee:

       While I do not have any personal knowledge as to what role, 
     if any, Mr. Olson played in the ``Arkansas Project'' or the 
     full extent of his relationship with the American Spectator, 
     what I do know is that Ted Olson is a truth-teller and you 
     can rely on his representations regarding these matters. . . 
     . He is a man of great personal integrity and credibility and 
     should be confirmed.

  So, then-Governor Bush chose a man to represent him in the biggest 
case in his life. He chose a man who had a reputation of this kind 
among opposing lawyers, lawyers who do not agree with him politically. 
That is what they say about him.
  He is uniquely qualified for the job, and he has the unique 
confidence of the President of the United States. This is what we ought 
to do: We ought to give the President whomever he wants in his 
administration if we can justify doing so. If there is some serious 
problem, we have a right to inquire into that. That has been inquired 
into and no legitimate basis has been developed on which to oppose the 
nomination.
  Then the question is: ``Should a nominee be confirmed?'' And the 
presumption is that he should unless there is a problem.
  There were a number of ``charges'' suggested. I will mention briefly 
that Mr. Olson wrote articles for the American Spectator and received 
some pay for some of them. He admitted that before the hearings. When 
he was asked to produce what he published, he submitted those articles 
to the Committee. Everybody knew that. After the hearing, Senator 
Kennedy said he was going to vote for him. He was satisfied. There was 
no dispute about his involvement with the magazine.
  His opponents said Mr. Olson played word games. Mr. Olson clearly 
responded that he wasn't involved in the management or the origin of 
this so-called Arkansas Project, but that when he was at dinners and he 
talked about the public Clinton scandals over dinner. Anybody knows if 
you are at a luncheon and you are talking, or at a dinner with an 
editor and he is writing political articles of this kind, you are going 
to talk about it. But it doesn't mean he originated the project or 
managed the project in any way, and that is what he said, ``I did not 
do.''
  With respect to Mr. Olson's representation of David Hale, he plainly 
said that he was not compensated for that work. He said he had helped 
Hale from

[[Page 9417]]

the beginning, but that he was never paid for it--he never got paid for 
representing him. He never denied representing David Hale, being asked 
by another lawyer, I believe he said, to help him. This was supported 
by the Independent Counsel Ray who has stated that the Shaheen Report 
on whether Mr. Hale was paid to testify found no evidence of any 
improprieties here.
  With respect to an American Spectator article on Vince Foster's 
death, Mr. Olson did not write it. He told the magazine employees that 
he didn't put much stock in it, but it was all right for the magazine 
to publish it. The First Amendment generally protects the press when it 
publishes articles on public figures. It is a free country. I do not 
believe that the magazine was sued over it. Mr. Olson didn't put much 
stock in it, but if the magazine wanted to publish it, fine. That is 
what I understood his statement to be. That is very different from the 
nominee writing the article or submitting it in a brief to a court.
  There were questions raised about a chart that he prepared that 
showed the federal and state criminal offenses that the Clintons could 
have violated if public allegations were proven in a court of law. He 
gave the chart to the Committee before we even had the hearing. That 
was something he had written and produced. We all knew about that.
  I would just say this. A man's professional skill, his integrity, is 
determined and built up over a period of years. We in this body, as 
Senators, know we can make a speech here and we can misspeak, and we 
have one of our staff, if they have a little time, go back and read it 
and correct the record.
  A nominee cannot do that. What Ted Olson said, he said under oath. I 
don't see he made a mistake at all. We never apologize around here. We 
make mistakes. We misstate facts. I have done it. I try not to. As a 
former prosecutor, I always try not to misstate the facts. I work at it 
very hard. I still find when I leave the floor sometimes I have 
misspoken. But are you going to call a press conference and try to 
apologize? We just do it and get away with it. This man told the truth. 
I don't see where he told anything that was a lie.
  I know there are some activists who do not want to see the man who 
handled the Bush v. Gore case confirmed. They don't want to see 
confirmed a man who gave legal advice to the American Spectator, who 
thought there was something rotten in Arkansas and went out and 
investigated it. How many of them went to jail over it? Some of them 
are still in the bastille, perhaps for crimes they committed that this 
magazine investigated. What is wrong with that? Isn't this America? I 
don't see anything wrong with Mr. Scaife giving money, legally, to 
investigate a stinking mess. That is what we had in Arkansas.
  The Independent Counsel investigations and the impeachment were tough 
times for this country. Those matters are behind us. We are at a point 
now where we have a new administration that is building its team. It is 
time that the President be able to have his top constitutional adviser 
on board, be able to do his duty.
  I am glad we can have this debate. Some see this nomination 
differently. I respect their views. Ultimately, however, there is no 
dispute based on facts in the record. I am glad this nomination is 
being moved forward and that we can have an up-or-down vote on it.
  I believe Mr. Olson will be confirmed. I think he should be. I am 
honored to cast my vote for him. I urge others to do so likewise.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that any time 
used in the quorum call subsequent to this be charged against both 
sides equally.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. NICKLES. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. Mr. President, I congratulate Senator Hatch and Senator 
Leahy for bringing the nomination of Ted Olson to be Solicitor General 
to the floor of the Senate. I am delighted we are going to have a vote 
on Mr. Olson. I know him well. I think he will be an outstanding 
Solicitor General not only for this President and this administration 
but for our country as well.
  Mr. Olson's qualifications are beyond reproach. He was an 
undergraduate at the University of the Pacific and received his law 
degree from the University of California at Berkeley. He has been a 
partner at Gibson, Dunn & Crutcher, one of the nation's leading law 
firms, from 1965 to 1981, and also from 1984 until the present time. He 
served as Assistant Attorney General from 1981 to 1984, providing legal 
advice to President Reagan and Attorney General William French Smith 
and other executive branch officials.
  He has handled a lot of very important cases. Probably the best known 
case was Bush v. Gore. No matter which side of that case you supported, 
you had to admire the skill with which he argued a very complicated 
and, needless to say, very important case. In addition, he has argued 
numerous other very significant cases before the Supreme Court and 
other federal and state courts. I will include for the Record a 
highlight of seven of these important cases.
  Ted Olson has been on both sides of the courtroom battles. He has 
defended the Government and counseled the President. As Assistant 
Attorney General, he dealt with limiting government power as well. In 
private practice, he has defended private interests against the 
Government. In his arguments on both sides of the courtroom, he has 
presented factual cases and positions in both Federal and state courts, 
arguing for the government and against the Government. That type of 
experience is almost unequaled in a nominee for Solicitor General.
  He will be an outstanding credit to the administration and to the 
country. His nomination is supported by liberals and conservatives, by 
individuals such as Robert Bork, Robert Bennett and Laurence Tribe. 
Different people with different viewpoints have reached the same 
conclusion I have reached: Ted Olson will be an outstanding Solicitor 
General, and he should receive our very strong support. I am delighted 
we will be confirming him as the next Solicitor General of the United 
States.
  I ask unanimous consent to print the list of cases to which I 
referred in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                     Leading Cases Ted Olson Argued

       Ted Olson has argued or been the counsel of record in some 
     of the leading cases before the Supreme Court:
       Rice v. Cayetano (2000)--Counsel of record for the 
     prevailing party in this case in which the Court struck down 
     as a violation of the Fifteenth Amendment. Hawaiian 
     legislation restricting voting in certain elections to 
     citizens based on racial classifications.
       U.S. v. Commonwealth of Virginia (1996)--Whether Virginia 
     Military Institute male-only admissions policy violates the 
     Equal Protection Clause of the Fourteenth Amendment to the 
     Constitution of the United States. Mr. Olson was counsel of 
     record for the Commonwealth of Virginia and Virginia Military 
     Institute.
       Garcia v. San Antonio Metropolitan Transit Authority 
     (1985)--Whether the Tenth Amendment's reservation of powers 
     to the states precluded application of the minimum wage and 
     other employment standards of the Federal Fair Labor 
     Standards Act to wages paid by the City of San Antonio to 
     municipal transit workers. Mr. Olson was counsel of record 
     for the United States.
       Immigration and Naturalization Service v. Chadha (1983)--
     Striking down as unconstitutional legislative veto devices by 
     which Congress reserved to itself or some component of 
     Congress the power to reverse or alter Executive Branch 
     actions without enacting substantive legislation. Mr. Olson 
     was counsel on the briefs for the United States.

[[Page 9418]]




                          Other leading cases

       Hopwood v. Texas (5th Circuit)--Holding that University of 
     Texas School of Law admissions policies violate Fourteenth 
     Amendment to the Constitution of the United States. Mr. Olson 
     is counsel of record for students denied admission under law 
     school admission policy which discriminated on the basis of 
     race and ethnicity.
       In Re Oliver L. North (D.C. Circuit)--Attorneys fee awarded 
     to former President Ronald Reagan in connection with Iran-
     Contra investigation. Mr. Olson represented former President 
     Ronald Reagan in connection with all aspects of Iran-Contra 
     investigation including fee application.
       Wilson v. Eu (California Supreme Court)--Upholding 
     California's 1990 decennial reapportionment and redistricting 
     of its congressional and legislative districts. Mr. Olson was 
     counsel to California Governor Pete Wilson.

  Mr. NICKLES. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. STEVENS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. STEVENS. Mr. President, is it in order for me to speak now on a 
matter not connected with this nomination?
  The PRESIDING OFFICER. It would take unanimous consent.
  Mr. STEVENS. I ask unanimous consent to speak for 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Stevens are located in today's Record under 
``Morning Business.'')
  Mr. STEVENS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Allard). Without objection, it is so 
ordered.


                      Unanimous Consent Agreement

  Mr. HATCH. Mr. President, I ask unanimous consent that all time be 
yielded back on the motion and the motion be agreed to. I further ask 
consent that the Senate now proceed to the consideration of the 
nomination and that the vote occur on the confirmation of the 
nomination with no intervening action or debate. I also ask unanimous 
consent that following the vote on the confirmation of the Olson 
nomination, the Senate then proceed to two additional votes, the first 
vote on the confirmation of Calendar No. 83, Viet Dinh, to be followed 
by a vote on the confirmation of Calendar No. 84, Michael Chertoff. 
Finally, I ask consent that following those votes, the President be 
immediately notified of the Senate's action, and the Senate then resume 
legislative session.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEAHY. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. So I understand, the first vote would be on the Olson 
nomination immediately?
  Mr. HATCH. That is correct.
  Mr. LEAHY. No objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The motion was agreed to.
  Mr. HATCH. For the information of all Senators, under this agreement, 
there will be three consecutive rollcall votes on these nominations.
  I ask for the yeas and nays on the Olson nomination.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. HATCH. I ask unanimous consent it be in order for me to ask for 
the yeas and nays on the other two votes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I ask for the yeas and nays on those votes.
  Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.

                          ____________________