Executive privilege: That’s a principle that has come up a lot in recent years, most recently regarding former President Donald Trump’s efforts to keep documents seized from the FBI’s search of Mar-a-Lago under wraps.
In the early 1980s, attorneys advising former President Ronald Reagan were looking for their own executive privilege test case, and they found it in Congressional requests for documents from the Environmental Protection Agency regarding a handful of Superfund sites.
They told EPA administrator Anne Gorsuch not to hand over the documents. When she complied, she ended up in more trouble than the White House advisors predicted and in the center of a perfect media storm that put pressure on the Reagan administration to change direction at the EPA.
It wasn’t just Gorsuch who ended up in hot water. By the end of the saga, one of her deputies would end up with a prison sentence.
The fourth episode of Captured breaks down the maelstrom at the EPA over the withheld documents, and what the documents — and the tussle itself — revealed about the inner workings of the agency meant to protect the environment and public health.
Full episode transcript
Scott Tong: ‘I smell a rat.’ When we left you, Congress was starting to get more than a whiff of scandal at the EPA; of polluters guarding the henhouse. And wouldn’t you know it, the more people whisper, the more the news media joins the chase.
Greg Gordon: What got me sort of into the environmental arena was a tip that there was an enormous dioxin problem — dioxin being maybe the most toxic chemical produced by man — in the state of Missouri.
Tong: This is Greg Gordon, long-time investigative reporter in Washington, D.C. And, full disclosure, my journalism professor in college … back in the early ‘90s. Now in the early ‘80s, Greg gets a crash course on this deadly family of chemicals: dioxin. It’s often a byproduct of industrial manufacturing, when a company makes a chemical or it burns something.
Gordon: I was writing for United Press International. I was a young investigative reporter at the time, working in the Washington bureau.
Tong: By 1982, the stench at the EPA is one of the biggest stories in town. Industrial toxins are turning up in neighborhoods all over the country. Yet the agency is slow to clean things up or to punish polluters. And Greg Gordon gets this tip.
Gordon: There was a chemical plant in Southwest Missouri, in the town of Verona.
Tong: During the Vietnam War, the plant produced Agent Orange: a chemical herbicide the Americans used to clear trees and expose the enemy. We now know it is linked to many cancers: Leukemia, lung, prostate. It’s a long list. The making of Agent Orange produced this poisonous byproduct: dioxin.
Gordon: One person described to me that if you had a single drop of dioxin dropped in a swimming pool, it would be toxic.
Tong: So in the early 70s, as Vietnam was still going, this factory in Missouri was — patriotically — making Agent Orange.
Gordon: There was a waste sludge that was in tanks at the plant that they wanted to get rid of. So they hired a truck driver named Russell Bliss and Mr. Bliss mixed the sludge with waste oil and was spraying it all around the state on roads for, for dust control and so forth.
Tong: So here’s what was going on. Dust was getting kicked up on unpaved roads. Towns around the state hired this truck driver named Bliss to spray a liquid cocktail to keep the dust down. Bliss also happened to haul waste for the Agent Orange plant, so he had all this dioxin on his hands, which he stirred into his cocktail. Convenient. But suddenly, more than 40 horses near these roads he was spraying turned up dead. Now, this contamination — it doesn’t become news for a decade.
Gordon: I got this tip and I started checking it, and I found a source in the government in Missouri who told me that this was brewing and there were 35, 50 sites in the state that were contaminated.
Tong: By now it’s 1982. And the timing could not be worse for the agency charged with protecting us from poison in the soil and water — the Environmental Protection Agency — and the two women at the top. Rita Lavelle is the deputy in charge of toxic waste, including the Superfund program to clean up old toxic dump sites. And Anne Gorsuch, who heads the EPA. Already, they’re under fire for purging enemies in the building and for going easy on industry friends of the Reagan White House. And now this. Will they survive? And what will the outcome mean for environmental protection? I’m Scott Tong. And from WBUR Podcasts and Here & Now, this is Captured: A brazen attempt to take over the EPA, and the nerds and pencil pushers who pushed back. Episode 4: Contempt. Okay — from Missouri back to Washington, D.C. now. On Capitol Hill, one of the key players putting the EPA and the Reagan administration in the hot seat is a surprising one: Elliott Levitas is a moderate Democrat from the South from a Republican-leaning district in Atlanta. Not exactly a Reagan hater. Now in 2022 — Levitas is retired and he’s in his 90s, but my goodness, his memory. As Levitas tells it: Back in the 1980s, he was not hunting for an EPA scandal. He was trying to avoid one.
Elliott Levitas: One of the things that I wanted to do as the chairman of this committee was to avoid doing oversight as an autopsy.
Tong: In other words, to prevent a government crisis in the first place. And his staff is asking: ‘What’s going on at the EPA? Is it responding to toxic waste emergencies and waste sites around the country?’ Remember, the agency has this Superfund program to clean up these sites.
Levitas: These staff people who knew their business went over to EPA and were getting these documents and examining them and seeing if there were any patterns that came to light.
Tong: As part of the paper trail, Elliot Levitas’s staff asks for documents on Superfund sites — including the Stringfellow Acid Pits in California. We’ve heard about that site in earlier episodes.
Levitas: All of a sudden, they closed the door and said, ‘We're not going to let you have any documents.’ And that's when I smelled the rat.
Tong: Now he’s in a fight.
Levitas: My concern was that they were using the Superfund program, not to enhance environmental protection, but to diminish or abolish it.
Tong: Now, that’s just the suspicions of one Congressional committee. There’s a separate investigation of the EPA at the House Energy and Commerce Committee. And its chair is one of the most feared men in Washington: John Dingell, Democrat of Michigan. Self-styled watchdog. Dingell is actually not loved by environmentalists, either, because he represents Dearborn: The automakers. He gets slammed as ‘Tailpipe Johnny.’ ‘Dirty Dingell.’ But, he is tenacious about scandal at Superfund.
(Soundbite from hearing: Today, the subcommittee continues its inquiry into the administration of the Superfund act and withholding Superfund files from the Congress.)
Tong: Dingell wants documents about the Stringfellow Acid Pits, too. It’s one of the worst sites in the country but mysteriously the cleanup is being delayed. So Dingell starts to wonder: Is there a political cover-up here? Is the EPA asleep at the wheel … on purpose? But the Reagan EPA goes dark on Dingell, too. No documents on Stringfellow. Why no documents? Executive privilege. Sounds familiar, right? OK, quick detour: Executive privilege is what ex-President Trump and key staffers were arguing in the summer of 2022 to avoid talking to the Jan. 6 committee in Congress.
(Soundbite from news coverage: Mr. Cippollone recalled conversations about those chants in the West Wing, but he relied on executive privilege to maintain confidentiality … )
Tong: This is a separation of powers argument. Richard Nixon made it, too: claiming executive privilege to not hand over secret White House audio tapes.
(Soundbite from archival footage: Here are arguments in number 73, 1766 United States of America against Nixon … )
Tong: Nixon lost at the Supreme Court, and those tapes became key evidence in the Watergate scandal that sank him. As far as the Reagan EPA — here’s Dick Frandsen, an investigator for John Dingell. As we’ve been telling you, he has been on the case.
Dick Frandsen: They were going to claim executive privilege over a certain set of documents, but they also did a second thing in addition to starting a constitutional fight with the separate and co-equal branch of government on access to information.
Tong: So this is the White House versus Congress. The Republican administration versus a Democratic House of Representatives. And in the middle of this fight is Anne Gorsuch. She’s the cabinet official in the hot seat who’s actually claiming executive privilege.
Frandsen: The only enforcement mechanism in the process is up the ante, send a subpoena, duces tecum for documents with a return date. That means they have to bring the documents to the committee, right? Failure to bring the documents on the date to show up or bring the documents holds them open to being cited for contempt of Congress.
Tong: Contempt of Congress. That is a Washington mark of shame. When that is threatened, people tend to give in. Henry Kissinger backed down in 1975 when Congress asked for intelligence documents. In fact, up to 1982, no cabinet-level official has ever faced such a charge. Contempt also means possible prosecution and even prison time. That is what Gorsuch faces.
In the middle of this showdown, her notorious deputy commits an awful gaffe. Remember last episode — we told you about Rita Lavelle’s rocky introduction to the agency to oversee toxic waste, including Superfund.
Rita Lavelle: Let me tell ya, EPA was horrific. The people, the employees hated us, were out to actively undermine us.
Tong: She writes this memo about her goals at the EPA that gets to her worldview. And the memo eventually goes public. She writes that most hazardous waste sites have been rendered as benign and that industries today are not dangerous to public health. So there’s a picture: She’s not that worried about toxic chemicals — which may explain Rita’s position on a waste site in Arkansas. The site has PCBs [Polychlorinated biphenyls] — toxic chemicals historically used to make paints, plastics and rubber. Chemicals whose production was federally banned in the 1970s because they’re so poisonous.
(Soundbite from archival news: Polychlorinated biphenyls or PCBs. These are toxic compounds, which for the most part cannot be legally disposed of in landfills.)
Tong: The EPA’s regional office in Arkansas asked for federal money to clean this site up. Rita Lavelle rejects it on grounds that kids would have to eat three candy bars’ worth of dirt to get sick from this soil. ‘It’s just a little poison. What’s the big deal?’ Where do we start? First of all, you don’t have to eat poisonous soil to get sick. The stuff emits toxic fumes and pollutes water and plants. And — could the federal government be more dismissive? Anyway, an EPA spokesperson later apologizes for Rita’s poor choice of words. Already, her boss Anne Gorsuch, is trying to contain crises at EPA. Anne worries the episode will further stir up the ire of John Dingell on Capitol Hill; she’ll write this later in her memoir. And the deadline to hand over documents is coming. On Nov. 30, less than a week before she’s supposed to appear in front of Elliot Levitas’s committee Gorsuch’s big boss — that would be the President of the United States — tells her, ‘Fight. Don’t hand them over.’ Anne Gorsuch is conflicted; She actually wants to release the documents. She thinks the executive privilege claim is weak.
(Soundbite of Gorsuch: I think it was very frankly, very poor advice.)
Tong: Still, she stays loyal to the president. And his Justice Department promises to have her back. At least for now. But then, she makes history. The bad kind.
(Soundbite of archival news: The House of Representatives today certified its contempt citation against environmental protection agency chief Anne Gorsuch and referred the matter to the U.S. attorney.)
Tong: Congress votes to hold her in contempt. Elliot Levitas.
Levitas: From the very beginning days, there had never been a cabinet official held in contempt of Congress. Never. And for that to have occurred when it did told me that for whatever reason, this was a matter of extreme importance to the Reagan people and their colleagues.
Tong: This becomes the first, big scandal for the Reagan administration. Yet for Anne Gorsuch and her bosses, it’s gonna get worse. Much worse. After the break.
Tong: By now, the media is swarming around Anne Gorsuch, who we’ve told you hates the media. At The New York Times, reporter Phil Shabecoff is chasing the Anne Gorsuch story.
Phil Shabecoff: She was called to give closed testimony before a House committee investigating the management of the Superfund and there was a big crowd of reporters waiting outside the door and she came out another door down the hall and the whole crowd reporters rushed after her.
Tong: Phil remembers a photographer turning to him.
Shabecoff: And he said to me, ‘When they run after you like that, you're gone.’ And he proved to be quite prescient. She was gone not long thereafter.
Tong: For the moment, though, Anne seems unfazed. Unrattled. Remember? She’s the Ice Queen. At least according to Dale Russakoff, then a reporter at The Washington Post.
Dale Russakoff: She said, you know, something like, ‘I'm here to do what this president wants us to do.’ And I remember just thinking she was a soldier, you know?
Tong: In an interview, Dale the reporter asks Anne the EPA administrator about the contempt of Congress charges. And Anne just rolls her eyes. This congressional brouhaha — all the politics — so not the point.
Russakoff: It just seemed like she just thought this is a ridiculous place. You know, there's just way too much sound and fury over, you know, things that really are not central to what the government is about.
Tong: To Anne, what the government is really about is streamlining costs. And protecting the environment efficiently. And at this moment, all eyes are on that dioxin contamination in Missouri, which she flies down to deal with.
By the way, in the middle of all this she gets married, and goes by Anne Gorsuch Burford. How Anne Gorsuch has time to get married and become Mrs. Burford, I have no idea.
Gordon: People began to do sampling and they were discovering dioxin throughout this town now spread all over the place.
Tong: Again, reporter Greg Gordon who's been on the story in Missouri.
Gordon: And, there were hurried huddles and, you know, meetings and frantic phone calls being made. And the next thing you know, Anne Burford called a news conference and announced that the federal government was buying, purchasing the town of Times Beach so everybody in the town could be made whole and it could be cleaned up.
Tong: That’s right. The EPA buys every home in the town of Times Beach, Missouri. So everyone can move out. The government decides it’s too dangerous to live there. Now, this is a controversial call.
(Soundbite from archival news:
LEWIS REGENSTEIN: It doesn't make any sense to buy up Times Beach, Missouri, to spend tens of millions of dollars of taxpayer money.
ROBERT MACNEIL: 33 million.
REGENSTEIN: 33 million so far to buy up Times Beach, Missouri, and to evacuate it because it contains levels of one part per billion in some areas and much higher another areas. While at the same time you allow these herbicides 2,4,5-T and Silvex to be sprayed all over the country.)
Tong: In any event, it’s another black mark for the EPA.
(Soundbite from archival news: The EPA has really not been doing the job it should have been doing in this area and many other areas.)
Tong: Another moment for critics to slam the agency for not acting sooner. Now, Greg Gordon’s breaking stories left and right in Missouri, in Washington. And his next one may help sink Rita Lavelle — who made that comment about the candy bars of poisonous dirt. Her staff — as we’ve told you — never liked her. Remember what EPA staff lawyer Ed Kurent said about her?
Ed Kurent: She wasn't close to being qualified. I might not have hired her as a secretary in my division.
Tong: Recall Rita has a conflict of interest disaster. One of the polluters the EPA is investigating is Rita Lavelle’s old employer: Aerojet. She recuses herself from the case on June 17, 1982. But by then, she has known about Aerojet for two weeks. That’s no-no number one. Number two is lying about it. Rita goes before a congressional committee under oath and says she recused herself immediately after she learned about the conflict. We know this is not true. Remember? In Episode 3? When Ed Kurent told Rita about her conflict way back in May?
Kurent: They needed to understand that, you know, there's the law and there's what you want to do. And there are standards by which things get done.
Tong: And that this was all documented by staff scientist Deb Dalton?
Deb Dalton: My job was to write a memo and explain that for legal reasons she needed to recuse.
Tong: To Deb, this is all part of what she compares to the French resistance. EPA employees and their friends on the outside leaking stories and documents to get the facts out. Speaking truth to power, as they see it. And now, Congress asks several of them to speak on the record. So Rita — she’s caught.
Gordon: And suddenly the phone rang and I was told Rita Lavelle may have just perjured herself. I said, ‘What?’ What reporter gets a call like that? It was very unusual. And it was a very reliable source. That's all I'll say about the source.
Tong: Can I just say, Greg Gordon can really keep a secret? Not revealing his sources? After 40 years?
Gordon: I wrote a story and my boss has put it on the United Press International wire. And within about an hour, Peter Jennings of ABC read it on the evening news. And a short time after that my phone rang again and it was Rita Lavelle screaming at me.
Tong: Rita claims this call never happened. But you can imagine why she might have been upset. Perjury is a big deal. It’s a felony. You could go to prison. In any event, Rita says she had no intention to lie.
Lavelle: Oh my God. After hours and hours and hours of testimony, that's all they could come up with? A date discrepancy? And what is the motivation to lie?
Tong: She says she was just confused about her calendar.
Lavelle: I challenge you to remember what you put on your calendar last week.
Tong: I wouldn't know. Challenge not accepted because I don’t know!
Lavelle: You just committed perjury! Hang ‘im!
Tong: Intentionally or not, she misleads Congress. Under oath. Multiple times. This on top of her kids-eating-toxic-dirt comment, you know, the candy bars. And then, in the course of these hearings, Congress turns up a memo from Rita — ‘the primary constituency of this administration: the business community.’ Sure smells like industry capturing government. In the end, February 1983, Anne Gorsuch Burford asks Rita Lavelle to resign. Or, perhaps forces her.
Lavelle: In the discussion while she's trying to fire me and tells me I'm fired and she's already issued the press release that I resigned. She says, ‘Unless you sign it, I'll blackball you everywhere. You'll never have a job again.’
Tong: Rita is fired. And you would think the story ends here. Well, Rita Lavelle’s deputies later tell investigators that her underlings then snuck into her office and made off with key documents. Which were later found in her apartment, according to sworn testimony.
(Soundbite of archival news: Rita Lavelle was fired after she declined a Gorsuch request to resign. This triggered an array of congressional investigations into charges Lavelle made sweetheart deals with polluters. And to spend Superfund cleanup money on a political basis. Then a paper shredder was discovered at EPA and an FBI investigation was launched to discover if it had been used to eliminate any of those documents.)
Tong: Now Rita tells us — nope. She knew nothing about documents escaping or aides doing it.
Lavelle: I don't know what they did after I left, after I was escorted out. I don't know what they did, but certainly nobody delivered anything to me at my apartment. I don't know what they did.
Tong: It all looks really bad for the White House. Keep in mind: this is the early 80s, when the EPA and environmental issues — clean air, clean water, protecting endangered species — have huge, bipartisan support from Congress and the American people. So right around then, Elliott Levitas, the Southern Democrat heading an investigation into the EPA remembers getting a call. It’s James Baker, Ronald Reagan’s White House chief of staff. Offering to sacrifice Anne Gorsuch Burford.
Levitas: He says to me, ‘If we give you Anne Gorsuch, Anne Burford, will you drop your investigation?’ And what he was saying is, ‘In exchange for our firing her, the administrator, would you drop the investigation?’
Tong: Let’s underscore what’s on the table here: The Reagan White House is offering to throw its top official at the EPA overboard. And in exchange, it wants Congress to stop the investigations. To back down. This is damage control — an attempt to make this toxic political mess go away.
Levitas: And what I said to him, ‘Mr. Baker, you don't understand, you don't get it. I'm not interested in getting rid of Anne Burford. I'm interested in looking at these documents and seeing what they reveal.’
Tong: Levitas hangs up. And puts in a call to Anne, the EPA head.
Levitas: I said, ‘Anne do you realize you are being set up, that they are setting you up, they're going to get rid of you in return for our ending this investigation?’ And when I said that there was silence on the other end of the line. And after a long silence, she said, ‘I'd like to talk to you in person when I get back in town.’ That was the last communication we had.
Tong: And this is how the Ice Queen gets frozen out. Here’s how she puts it, years later.
(Soundbite of Gorsuch: My father always said, ‘Anne, you never really have to worry about your enemies… It will be your friends who can do you in.’ And in fact, that's what happened.)
Tong: More, on the final episode of Captured.