In the days of Boss Tweed, when scandals were simpler, a document came into possession of the press. "He understands addition, division--and silence," one of the members of Tweed's notorious New York City ring wrote an accomplice in recommending another grafter to the group.
Amid all the dealings of those Tweed days of plunder from the public till, that brief sentence contained language citizens could seize on, and did, in driving out the rascals.
Something of equal simplicity was contained in the memo that surfaced last week from the office of Rita M. Lavelle, the now-fired Environmental Protection Agency official who was charged with responsibility for that agency's toxic waste enforcement. The memo complained about the EPA's chief legal officer:
"He is systematically alienating the primary constituents of this administration, the business community."
Nothing more clearly underscores an attitude all too prevalent in this administration--that the official's primary concern is the private interest, not the public.
This is not to suggest that the Lavelle-EPA affair resembles old-fashioned, Tweed-style corruption of a century ago when public officials got bags of money for illegally enriching favors. But there's an odious quality about the complicated EPA problems bubbling up ever more distressingly into public view.
The situation promises to grow worse unless the Reagan adminstration moves quickly to correct it.
More than one congressional committee is involved in this still-developing story. But the experience of one such group lays out the dimensions of the controversy and illuminates the national stakes involved.
Last October, John D. Dingell (D-Mich.), chairman of the House subcommittee on oversight and investigations of the parent Energy and Commerce Committee, issued a subpoena on behalf of his subcommittee. It directed Anne M. Gorsuch, EPA's boss, to deliver 35 documents, later amended to include 16 more, concerning three of the most seriously contaminated hazardous waste sites in the nation.
The documents were sought for several reasons:
They were deemed essential to the subcommittee's legal responsibility of reviewing how effectively the U.S. government, through EPA, was enforcing the law to ensure cleanup of the hazardous waste sites. The sites in question were designated on EPA's list for priority cleanup under the so-called Superfund Act, passed by Congress in 1980. A $1.6 billion trust fund was established by the act, which grew in part out of hearings by the Energy and Commerce Committee.
They were believed to contain information about official misconduct. The subcommittee had received specific allegations of misconduct and unethical behavior by EPA officials in connection with the agency's efforts at enforcing cleanup of the sites. Among the materials sought were notes of meetings attended by EPA enforcement personnel, and the subcommittee believed that the notes bore directly on these misconduct charges.
Thus, this was no mere congressional fishing expedition.
Nor was the issue at stake inconsequential from a national standpoint. As Dingell accurately stated when Gorsuch appeared before his subcommittee last December in answer to the subpoena:
"This nation is worried about the poisoning of America and about the contamination of its surface waters, subsurface waters, soil and air by hazardous wastes. On behalf of the American people, the Congress must be assured that this administration is aggressive in enforcing the cleanup of these hazardous wastes and in recovering cleanup monies from polluters."
Thus, the issue involved protecting the nation's public health and safety and safeguarding taxpayers' funds.
From all of the maneuvering came these results: First, a refusal by Attorney General William French Smith, "with the knowledge and concurrence of the president," to provide the committee copies of key documents regarding implementation of the Superfund cleanup program. Second, a refusal by Gorsuch, acting, she said, under direct orders from President Reagan, to turn over the requested documents. And, third, the citing of Gorsuch for contempt of Congress by the full House last Dec. 16, an occurrence unprecedented in American history.
The administration's rationale for withholding the documents under the doctrine of "executive privilege" is that they are "enforcement-sensitive"--meaning, as the government puts it, that disclosure of the documents to "potential defendants" or "the public at large" could "severely damage the Justice Department's enforcement efforts."
Several other points:
This struggle over executive privilege appears different from past memorable confrontations between the legislative and executive branches of government, most notably between president and Congress during Watergate.
The documents the administration seeks to keep from Congress do not involve sensitive national security information. They do not affect foreign policy considerations. They were not prepared for the use of the president. They were not used in presidential decision-making. They were not used to advise the president on steps he might take in carrying out his constitutional responsibilities. As far as the subcommittee could determine, they were not even seen by the president.
More than that, testimony before the contempt citation was issued disclosed that EPA's general counsel had not even personally reviewed the supposedly "enforcement-sensitive" documents. And, he testified, as far as he knew, none of the documents was for use in criminal matters. He also testified that he was not even aware if the documents were involved in any civil prosecutions at his agency.
So why are they being withheld, and what do they contain?
Of the EPA affair so far it can be said that the more we know, the worse it gets.
The suspicion grows that what is sensitive about these documents, and therefore not fit for public examination, is a pattern of political manipulation and of favoring private over public interests.
Perhaps this is not so, and let us hope that proves to be the case. But the longer Reagan administration officials let this situation build in the press, with damaging information trickling out daily (and now with the prospect of more subpoenas and more controversy, including charges of shredding evidence), all the while headed for a showdown with the Congress, the more difficult it will be to persuade citizens otherwise.
This need not be another destructive Bert Lance affair. It will be if such officials as Gorsuch dismiss the serious allegations leveled against her agency as merely "a personnel matter." In the end, there's a simple solution. The administration can take steps to reassure the nation that deplorable conditions threatening public health are being cleaned up, as the law requires.