The House Judiciary Committee is investigating notes that suggest that senior Justice Department officials early last year discussed starting a criminal investigation of Environmental Protection Agency aide Rita M. Lavelle to keep some sensitive documents secret, according to informed sources.
More than half a dozen lawyers who have reviewed the notes say they indicate that there clearly was discussion of starting an investigation to keep the documents away from the oversight subcommittee of the House Energy and Commerce Committee. One lawyer who has read the notes characterized them as indicating that the people at the meeting were considering "sacrificing" Lavelle, who was convicted last December of perjury and obstruction charges, "to stop the committee."
He was referring to the subcommittee's ongoing investigation of the EPA in which President Reagan had cited executive privilege in refusing to turn over agency documents.
Another lawyer who has reviewed the notes said, "There were clearly discussions about starting a criminal investigation for the purpose of being able to throw a protective cover over the documents and the employes. There were frequent references to the subcommittee requests ," said a lawyer who has reviewed the notes.
However, key Justice Department officials involved in the meetings all deny that they contemplated starting a Lavelle investigation to shield the documents, and no investigation on this basis occurred.
The sources said Judiciary Committee Chairman Peter W. Rodino Jr. (D-N.J.) felt that there was enough evidence of such a discussion that on Aug. 22 he sent a letter to Attorney General William French Smith inquiring about it. The committee has refused to release the letter, and Rodino has said through aides that he will not discuss his committee's investigation or release the notes.
The evidence consists primarily of several sets of notes of Justice Department meetings, now in the Judiciary Committee safe, which Rodino copied and sent with his letter to Smith, the sources said.
Two of those who took the notes have been identified as Ann Gailis and Mary Walker, lawyers who were then in the Lands and Natural Resources Division. Both confirmed that they took the notes.
Gailis refused to comment further. Walker said that she remembered no discussion of starting an investigation to shield the documents and that she would make no other comments since the matter is under investigation.
John C. Keeney, the deputy attorney general in charge of the Criminal Division, replied to the Rodino letter Aug. 24, saying, "Your letter indicates that you may believe that Ms. Lavelle was investigated in order to prevent or delay the Congress from obtaining ac- cess to certain documents and witnesses . . . .
"I want to assure you that is not so . . . . Ms. Lavelle was neither singled out for special treatment nor investigated in order to withhold information from the Congress," Keeney said in the letter, a copy of which has been obtained by The Washington Post.
Former Deputy Attorney General Edward C. Schmults, who was present at the meetings and is believed to have been the senior department official there, said, "At no time did anyone in the department have a plan to open a grand jury investigation of anyone to protect the documents. That would be improper. That would be a totally outrageous use of the justice system. I'm certain that did not happen. It's an outrageous allegation."
Justice Department spokesman Thomas P. DeCair said, "I've talked with one or more participants in the meetings . . . . There was absolutely no discussion of a scheme to get an investigation started as a way to not send the documents to the Hill." He declined to provide copies of the notes.
At the time the Justice Department meetings started on Jan. 27, 1983, the department had received no referrals from the EPA about possible criminal conduct by Lavelle, and the sources said the notes reflect no discussion of evidence against Lavelle.
The House Energy and Commerce oversight and investigations subcommittee had notified the EPA that it was seeking to subpoena the documents; but materials involved in grand jury investigations can be kept secret indefinitely.
Sources familiar with the notes say there is no indication that the investigation and later conviction of Lavelle was a result of the meetings. They said officials from the Justice Department's Criminal Division were excluded from most of the meetings and were not aware of the notes until very recently.
Associate Attorney General D. Lowell Jensen, who then headed the Criminal Division, said the decision by the division and the FBI in March 1983 to launch an investigation of Lavelle was "based on the facts, just like any other investigation."
Keeney, who had authority over the Lavelle case, said, "Nobody ever advised opening a grand jury or criminal investigation to block the congressional inquiry . . . in my presence."
Another lawyer familiar with the decision to start the Lavelle prosecution said none of the prosecutors had heard of any suggestion that an investigation be started to shield the documents. If department officials had suggested such action, he said, we "would have told them to stick it in their left ear."
One source who has reviewed the notes says it is impossible to tell from the discussion whether the participants knew that there might be evidence of wrongdoing in the documents or whether they simply were seeking "a test case on executive privilege to cut the legs off congressional committees."
Less than six weeks after the meetings started, more than a dozen top agency officials, including EPA Administrator Anne M. Burford, had resigned, and Reagan had agreed to turn over to House investigators documents that showed a pattern of mismanagement, political manipulation and favoritism in funding for cleanups at hazardous waste sites.
But at the time of the Justice Department meetings, which continued from Jan. 27 through Feb. 9, Reagan was refusing to turn over the documents, saying they included "enforcement-sensitive" material dealing with EPA investigations into possible violations by polluters.
Lawyers who have read the notes of the meetings say the senior participants were Schmults; Theodore B. Olson, who heads the Justice Department's Office of Legal Counsel; Carol E. Dinkins, who then headed the Lands and Natural Resources Division and is now deputy attorney general; and J. Paul McGrath, who heads the Civil Division.
DeCair said there would be no further comment from those officials. "I think we've been working with the Judiciary Committee and giving them access to information on a confidential basis. We wouldn't want to say anything at this point. It's up to them to put out a report . . . . That's the appropriate forum."
Olson and EPA General Counsel Robert Perry had certified at that time that they had reviewed the withheld documents in late 1982 and that they contained no evidence of illegal or unethical conduct by EPA officials, which was the focus of the House probe.
But a March 25, 1983, FBI memorandum written by John D. Glove, assistant director of the Inspection Division, said that one of the withheld documents contained evidence of possible violations by EPA employes of the federal criminal statute forbidding federal officials from using their authority to affect elections. The memo said that the document was "germane to the congressional investigation of . . . allegated manipulation of the 'Superfund' for political purposes."
Lavelle, who headed the EPA's Office of Solid Waste and Emergency Response with authority over the "Superfund," ultimately was indicted and convicted on four counts including perjury and obstruction of justice. She is appealing her conviction.
Sources familiar with the investigation said Rodino believed that he had been given access to all the Justice Department documents related to the executive privilege issue months ago and was stunned when he received the notes of the early meetings about two months ago.
The sources said Rodino immediately became concerned that the notes might constitute so-called "Brady" materials -- exculpatory evidence that they believe prosecutors should have turned over to James Bierbower, Lavelle's defense attorney, who had requested such information.
In his letter to Rodino, Keeney said he did not consider the notes to be "Brady" material, but he forwarded copies of his letter to Bierbower and to the U.S. Court of Appeals for the District of Columbia.
At Lavelle's appeals hearing on Sept. 5, Bierbower did not ask for the notes even though he had received a copy of Keeney's letter. Asked recently whether he will ask the court to order release of the notes, Bierbower said, "We're analyzing the possibilities." He said that seeking the notes is "one of the possibilities. I don't want to go beyond that."
One source called the Rodino investigation of the Justice Department's use of executive privilege, which was described as having a much broader focus than the early meetings on Lavelle, "the best-kept secret in Washington." Some members of the Judiciary Committee were not aware that the 18-month investigation has been going on.
Sources familiar with the inquiry say that it may take months to complete and that Rodino will not be rushed because he does not want to be "accused of a partisan fishing expedition."
The Justice Department meetings in question came in the midst of a long confrontation that began in late 1982 between the the House subcommittee, headed by Rep. John D. Dingell (D-Mich.), and the administration over EPA documents that had been subpoenaed or requested by several House subcommittees. After Reagan invoked executive privilege, the House voted overwhelmingly on Dec. 16, 1982, to hold Burford in contempt of Congress.
Instead of going forward on the contempt charge, the Justice Department filed suit against the House of Representatives seeking to block prosecution of Burford. That lawsuit was dismissed in U.S. District Court Feb. 3. The House action against Burford was dropped after her March 9 resignation.
As the new Congress was returning in 1983, Dingell sent a letter to Burford Jan. 15 notifying her that he would be seeking several documents, including those that had been subject to the earlier subpoena. On Jan. 25, Dingell sent a second letter to Burford requesting staff interviews with 25 EPA staff members, starting Feb. 2, regarding the Stringfellow Acid Pits hazardous waste site in southern California.
Keeney, who said he believes that he attended some of the meetings, said he advised his colleagues, in response to questioning, that a grand jury proceeding might mean that some documents would become evidence that could not be turned over to Congress. He said he was never present at a meeting where someone proposed a grand jury investigation as a means of avoiding providing the information to Congress.
Additional meetings took place Feb. 1, 2, 4 and 9, according to several sources.
Keeney said that at one point early in the meetings, he was asked by the participants whether there was enough evidence to warrant convening a grand jury in the Lavelle case. Keeney told that them there was not enough evidence.
On Feb. 2, the day Dingell was scheduled to start his interviews with the EPA employes, several other actions were under way.
Sources said Burford attended two meetings at the White House, where approval was given for firing Lavelle. The first was with the White House senior staff, including chief of staff James A. Baker III, his deputy, Michael Deaver, and counselor Edwin Meese III. Later in the day, Burford had another meeting on the matter with Meese.
On the same day, Burford referred to the Justice Department the first possible criminal action against Lavelle. In a letter to Schmults marked "confidential," she charged that Lavelle "may have" engaged in an improper contact with a defendant in an enforcement case.
Two days later, on a Friday, Burford asked for Lavelle's resignation. Lavelle refused to resign and was formally fired the following Monday, Feb 7, by Reagan.
On Feb. 8, Burford sent another letter to Schmults raising two possible criminal allegations against Lavelle involving possible perjury and conflict of interest.
None of those allegations figured in the later indictment and prosecution of Lavelle, who is free pending appeal of her sentence of six months in prison and a $10,000 fine.