Independent counsel Alexia Morrison has asked that former assistant attorney general Theodore B. Olson be jailed for contempt of court unless he agrees to waive the statute of limitations in his case while he pursues his claim that the independent counsel statute is unconstitutional, according to recently unsealed court records.
Morrison was appointed in May 1986 to investigate whether Olson gave false or misleading testimony March 10, 1983, in a House Judiciary Committee probe of the Environmental Protection Agency's "Superfund" scandal. Under the five-year federal statute of limitations, Morrison could be precluded from bringing charges against Olson after March 10.
Olson was found in contempt last Aug. 19 in U.S. District Court here for refusing to honor a court order to turn over subpoenaed documents. At the time, Morrison agreed that, pending a speedy appeal, Olson need not be imprisoned.
However, although the appeals court agreed to review Olson's challenge to the constitutionality of the independent counsel law on an expedited basis and heard oral argument in the case in September, it did not rule until yesterday.
In a brief submitted to the appeals court panel in December, Morrison warned that her time to prosecute Olson was running out. In a footnote, she disclosed that she was pursuing unspecified "efforts" to avoid the statute of limitations problem.
According to documents ordered unsealed last week, Morrison on the same day filed a motion in District Court asking that Olson be imprisoned for contempt unless he agreed to waive the statute of limitations pending the appeals court decision.
"Neither the parties nor any other reasonable observer expected Olson's appeal to remain pending for very long" when he filed it last summer, she said.
In papers filed in response on Jan. 7, Olson's lawyer, Thomas S. Martin, criticized Morrison for seeking "to coerce Mr. Olson to choose between imprisonment and a waiver of his statutory protection from dilatory prosecution as a price for pursuing a substantial appeal." He said Morrison took more than a year to subpoena the documents in question.
In another motion Jan. 11, Morrison said, "If the stay is not modified, there is a grave danger that Mr. Olson will be able not merely to evade entirely the coercive sanction of contempt but to frustrate any possibility of ultimate criminal prosecution by the simple expedient of taking an appeal and allowing the delays of the appellate process to run their course."
But Morrison said Olson should be willing to waive the statute of limitations to avoid incarceration on the contempt charge. "He cannot eat his cake and have it too," she said.
There was no indication in the court record that U.S. District Court Judge Aubrey E. Robinson Jr. took any action in response to Morrison's request.