Libby, the Marc Rich Pardon and Congressional Hearings
There is a lot of media chatter about Rep. John Conyers' decision to hold hearings next week into the use of the Presidential pardon power, including Bush's commutation of Scooter Libby's sentence. TChris wrote earlier about Tony Snow's uninformed reaction. There's also a lot of chatter and criticism about President Clinton's pardon of Marc Rich.
Since the Rich pardon and the congressional hearings about it occurred several years ago, I decided to do a little research. Here's the transcript of the second Congressional hearing into President Clinton's pardon of Marc Rich.
I think it's significant that President Clinton waived executive privilege for the hearing and allowed his aides who participated in the Rich pardon discussion to testify, no holds barred.
Will Bush do the same next week?
Now, on to the Marc Rich pardon. The Congressional committee was investigating whether President Clinton could have had a good faith belief that Marc Rich deserved a pardon, or whether the pardon was so off the wall that it could only have resulted from bribery in the form of financial contributions or other illegal motive.
As I wrote earlier, Rudy Giuliani, as head of the prosecutor's office that charged Marc Rich, continues to criticize Rich's pardon. One person who testified at the Congressional hearing and who agreed Clinton had a good-faith basis for pardoning Rich was Scooter Libby. (No wonder Rudy practically chokes every time he has to support Bush's commutation of Libby.)
Before getting to Libby's comments, I think some obvious differences between Libby and Rich should be made. (The statements that follow come from the congressional hearing transcript linked above.)
First, Marc Rich was never convicted. He left the country before he was indicted. He never had a trial. (Technically, I think there may be an issue as to whether he even was a fugitive since since he left the country before the Indictment was returned.)
Marc Rich's companies were charged with tax offenses, pleaded guilty and paid a $200 million fine. Rich, probably seeing the writing on the wall, left the country, went to Switzerland and attempted to renounce his U.S. citizenship. The Indictment against him is here and here (pdf).
After Rich was charged, while he was overseas, his lawyers, including Scooter Libby, tried for years to settle the case with Giuliani's office but they could never agree on terms.
Rich's lawyers then decided to try to convince Main Justice the charges against Rich were not well founded. It appears Main Justice wouldn't discuss the facts of the case with the Rich defense team.
It was only when all of those attempts, which occurred over years, failed that Rich lawyer Jack Quinn decided to apply for a pardon. At that point, Libby recused himself from representing Marc Rich because he was working at the Defense Department.
But Libby was an important witness at the Congressional hearings because as one of Rich's lawyers on the criminal tax charges he had a huge amount of knowledge about the criminal case and Rich's available defenses.
Libby was asked at the hearing whether he thought Marc Rich was guilty of the charges in the Indictment. His answer (after a lot of hemming and hawing) was "No."
LIBBY: I believe that the Southern District of New York misconstrued the facts in the law, and that looking from all of the evidence available to the defense, he had not violated the tax laws.
....LIBBY: I do not believe that these two gentlemen, based on all the evidence available to me, were guilty of the charges for which they were indicted.
Libby goes on to say Giuliani's office should have dropped the charges against Marc Rich. In a bit of doublespeak, Libby also says he thinks Marc Rich is a traitor to the U.S. because of a trade he made with Iran, but that the trade wasn't illegal.
LIBBY: Sir, my understanding is that the conduct in which he engaged was not illegal, but I agree with the description that you could consider him a traitor for trading with Iran during that period.
While Libby wouldn't say whether he thought Rich should have been pardoned, he did testify that he agreed with the reasons given by President Clinton for the pardon in a New York Times op-ed. In other words, he disagreed with those who said there was no way Clinton could have made the decision to pardon Rich in good faith.
LIBBY: I have been convinced that if I sat down with them [Main Justice]and they laid their cards out and we laid our cards out, that we would win, but I don't know.
SCHILIRO: But so I understand, had you been in the position where you were pursuing the pardon, based on everything you know in this case, you think you could have put together a good strong case for a pardon and a defensible case if the president so issued, based on what you know?
He also said that he didn't believe Marc Rich's companies were guilty even though they pleaded guilty.
LIBBY: I believe that all the evidence available to me indicated that his companies were not guilty of the crimes for which they had been indicted.
Among the Clinton aides who testified were former counsel to former president Clinton Beth Nolan, former Clinton aide Bruce Lindsey and former White House Chief of Staff John Podesta. Former Deputy AG Eric Holder testified at an earlier hearing.
All said they were part of the Rich pardon discussions. Rich's pardon application was submitted by lawyer Jack Quinn in December, 2000 to the White House rather than to the Pardon Office. Quinn had told former Eric Holder and Beth Nolan of his intent to submit it directly to the White House. The Pardon Office had been ridiculously backed up since October and wasn't timely churning out the reviews. Clinton had expressed to his staff his desire to grant more pardons before he left office.
Also, since Rich hadn't been convicted, the aides testified the application wasn't one the Pardon Attorney likely would handle. Rather, the deputy attorney general, the White House counsel's office, and the President would be the appropriate ones to consider it.
The application was submitted five weeks before President Clinton acted on it.
Podesta, Nolan and Lindsay all repeatedly denied hearing about any financial consideration from Denise Rich to the Clinton Library or anywhere else:
I just want to go back to this, to you, Mr. Podesta, to you, Mr. Lindsey and to you, Ms. Nolan--I just want to make sure the record is clear for the person who just tuned in, that during these discussions with the president, there was no, to your knowledge, there was no mention of contributions made by Ms. Rich to the library or to the first lady or to the president of the DNC? I think I got everything there.
PODESTA: That's correct.
CUMMINGS: Is that correct, Mr. Lindsey?
LINDSEY: Yes, sir.
NOLAN: Yes, absolutely no mention.
While neither Podesta, Lindsay or Nolan agreed with Clinton about granting a pardon to Rich, they believed, as Jack Quinn testified:
This process could have worked an awful lot better. We know that. A lot of things went wrong. But a case was presented on the merits. I happen to believe that the president decided this for reasons with which everybody in the Congress may disagree, but which were wholly appropriate for him to base his decision on.
So, President Clinton's actions in pardoning Marc Rich (and several other persons) were thoroughly investigated, Clinton waived executive privilege and allowed his aides to testify, and while almost no one (except perhaps Scooter Libby and Jack Quinn) agreed with the reasons for Clinton's decision, no wrongdoing by Clinton was found to have occurred.
Now it's time to put President Bush's commutation of Scooter Libby to the same test with a congressional hearing. Those whom Bush consulted should testify. Bush should waive executive privilege.
Was Bush's commutation of Libby's jail sentence just bad judgment? Or, did he do it to silence Libby and prevent him from spilling the beans on Cheney or Bush himself in PlameGate?
The public is entitled to know.
Think Progress has a lot more history on the Rich pardon and the congressional and DOJ investigations into it, including a link to the final March, 2002 House Government Reform Committee Report, Justice Undone: Clemency Decisions in the Clinton White House. Also check out Dan Froomkin today, The Clinton-Did-It Flimflam.
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