Magazine, senator clash over records

Thursday, July 12, 2001

Sen. Patrick Leahy, D-Vt.

Nearly 35 years after the advent of the American Spectator, few things surprise R. Emmett Tyrrell Jr., founder and editor of the notoriously scrappy conservative magazine.

After all, this is the publication that broke the floodgates on coverage of former President Clinton's sexual mishaps and land dealings in Arkansas, suffering considerable criticism from the mainstream press and a Justice Department investigation in the process.

But a letter from Sen. Patrick Leahy, D-Vt., demanding that the magazine provide numerous records involving Theodore Olson, President George W. Bush's nominee for solicitor general and former counsel to the magazine, absolutely shocked the venerable Tyrrell.

“I was astonished,” Tyrrell said. “What they wanted to claim was that Ted Olson had been involved in our investigations … that he was involved in our journalism. I felt that was off limits to government.”

Although he felt somewhat intimidated, Tyrrell told Leahy, now chairman of the Senate Judiciary Committee, that the magazine would not comply with any request for records.

But David Carle, a spokesman for Leahy, said Tyrrell either misunderstood or misstated the senator's intentions. Leahy, Carle said, merely suggested that Olson or the magazine turn over records to clarify Olson's relationship with the American Spectator Foundation, which oversees the magazine.

“This was an issue seized upon and incorrectly distorted by proponents of Mr. Olson when there was no issue really,” Carle said.

Tyrrell bluntly disagrees: “They wanted to know how we did our journalism.”

The scuffle between Leahy and the Spectator came in May amid nomination hearings for Olson, selected by Bush and later approved by the Senate as the new solicitor general.

Democrats held reservations about Olson, who successfully represented Bush before the Supreme Court over the Florida vote tallies in last year's presidential election. Leahy, in particular, raised concerns during the hearings that Olson had a long history of “sharp partisanship” and feared that he couldn't leave such ties behind.

Leahy said the most persistent questions about Olson concerned his involvement with the Spectator and its so-called “Arkansas Project,” a journalistic endeavor designed to uncover former President Clinton's land dealings in Arkansas. Leahy said he worried that Olson, as an attorney and board member of the American Spectator Foundation, offered not only legal advice but also actual editorial assistance with the project.

At the time of Olson's hearings, The Washington Post reported that both Tyrrell and another editor said they had discussed story ideas and legal issues with Olson at dinner parties and other gatherings. Tyrrell denies that he ever discussed the project with Olson in significant detail.

Leahy asked to see the magazine's documents to clarify the matter.

Carle said that was a legitimate and fair request from Leahy. He said Olson and the magazine could easily clarify Olson's role with the magazine by providing a few records.

“There was never talk of a subpoena,” he said in a telephone interview.

Tyrrell disagreed, referring directly to the wording in the letter, which asked for “copies of the internal audit, board books and minutes … and all notes and records of Board discussions of the audit.” Leahy further warned Tyrrell that “should that request be denied, the committee as a whole should take appropriate action to obtain the information.”

Tyrrell said he responded negatively to the request, telling the senator he was making “friendship a misdemeanor and journalism a felony.”

Although a subpoena never surfaced, Tyrrell said he's concerned that the mainstream press failed to come to his magazine's defense.

Over the past two months, Tyrrell's only support among journalists has come from traditionally conservative camps, such as the editorial pages of The Washington Times and The Wall Street Journal and online sites such as the Journal's and National Review's Web site.

William Safire, a columnist for The New York Times, warned Leahy in a recent column that he risked “trampling on the First Amendment” by insisting upon “waving a vacuum cleaner at an editorial office.”

Tyrrell, in a telephone interview and in his most recent column titled “The First Amendment Project,” said that only the American Civil Liberties Union seemed to be prepared to jump to his magazine's defense in case a subpoena arose.

As for other newspapers and press advocates, Tyrrell said they were conspicuously absent from the debate. In fact, he said that a number of other journalists were downright “egging [Leahy] on to pursue government investigations of fellow writers and of a lawyer who had offered legal counsel to a magazine they did not like.”

“I can't say what the motive of the American press was to overlook this story, but I can say they overlooked the story,” Tyrrell said in a telephone interview.

Tim McGuire, president of the American Society of Newspaper Editors, said his group didn't overlook the situation but didn't get involved because Leahy never followed up on threats, perceived or otherwise.

“Our feeling is, he got to the right place on this issue despite his earlier statements,” McGuire said in a telephone interview. “So there was nothing for us to do or say.”

McGuire further noted that Leahy, an architect of key freedom-of-information legislation and opponent of the flag amendment, is a stalwart supporter of First Amendment and press freedoms.

Carle, Leahy's spokesman, noted that the senator is also one of only two public officials to earn the Zenger Award, a coveted press-freedom honor given by the University of Arizona.

Leahy also was inducted into the Freedom of Information Act Hall of Fame in 1996. The honor was bestowed at The Freedom Forum by the Coalition to Support and Expand the Freedom of Information Act.

Al Tompkins of the Poynter Institute said he hadn't heard about the scuffle between the Spectator and Leahy, noting that the magazine's legal problems don't appear on many people's radar.

“That said, the unvarnished truth is we don't do anywhere near enough coverage on freedom of the press, the First Amendment or freedom-of-information issues,” Tompkins said in a telephone interview. “We don't do near enough exploration or explanation on these issues.”

In situations like this, “it's not only hard for the one involved, it's harsher for the next one in line,” Tompkins said.

Tyrrell said his magazine is hardly a stranger to subpoenas or government investigations. During Kenneth Starr's investigation of Clinton's land dealings and affairs with Monica Lewinsky, Spectator writers were routinely harassed and called to testify before the grand jury. The Justice Department investigated the magazine at the time but found no wrongdoing, he added.

At the time, Tyrrell said, his magazine enjoyed no support from newspapers or press groups save for a few articles in The Wall Street Journal.

“The First Amendment is a very fragile concept when journalists won't come forward on behalf of other journalists under fire the way we were,” he said.

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