Holder and the Marc Rich Pardon

In today's New York Times, Seth Lipsky defends President Clinton's decision to pardon Marc Rich (an issue receiving fresh scrutiny in light of Eric Holder's involvement). His central argument -- that using RICO to prosecute accusations of tax evasion is an abuse of RICO that the Justice Department ended six years after Rich's indictment -- echoes (and relies upon) Bill Clinton's explanation for the pardon.

Lipsky's reasoning is sound if not fully persuasive. The aggressive expansion of RICO to prosecute persons who were not part of a criminal organization (as opposed to a business organization that committed tax crimes) stretched the law beyond the uses that Congress envisioned. The question is why Rich (who departed the country before his indictment) received the benefit of that merciful reasoning while other RICO defendants who were similarly situated did not. There is more to that story than Lipsky reveals.

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Lipsky cites Clinton's reliance on the entreaties of foreign officials who extolled Rich's contributions to Israeli charitable causes and civic or governmental projects. It is difficult to embrace that argument. Rich used wealth to make connections that gave him formidable chips to cash in when he needed help. Individuals having less wealth and influence were also prosecuted unfairly and arguably were just as deserving of relief but lacked the necessary chips. Presumably Clinton took that concern into account when he decided to pardon Rich.

Did the president also consider that Rich was (in the words of Senator Feingold) "a huge donor" to the Democratic Party? Whether the pardon decision was wise or ethical given that circumstance is the subject of legitimate debate, but the exercise is academic once the president leaves office. The pardon power is the president's alone to exercise. The Framers made the president's decision unreviewable, a notable exception to the Constitution's preference for checks and balances. The Constitution leaves pardon decisions to the president's conscience, such as it might be.

The debate about Holder's role is more salient, but the Constitution gives the pardon power to the president, not to Justice Department officials. If he greased the way to a pardon for a generous party donor, as his detractors charge, the grease stained his resume. On the other hand, when Jeralyn dissected the Rich pardon, she found no less an authority on criminality than Scooter Libby opining that Rich violated no laws.

If Holder helped an innocent man obtain a pardon, it's difficult to hold that accomplishment against him. Some familiar names were involved in the pardon discussion, although in different capacities than Holder, and they've testified about the decision-making process. As Jeralyn describes it:

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.

Whatever one might think about the choice of Holder as Attorney General, his questionable decision to help Rich isn't a sufficient reason to oppose his nomination. Granted that it is not much of a standard for comparison, but Holder is no Alberto Gonzales, and he's considerably more sane than John Ashcroft.

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    Get over it (5.00 / 1) (#7)
    by koshembos on Sun Dec 07, 2008 at 07:47:00 PM EST
    It's about time that people not dedicated to hating all things Clinton realize that pardons are given to criminals not to nice guys. Even if Marc Rich is at the top of the list of abusers, he is not alone on the list.

    It's the prerogative of the president and it's not qualified by do Republicans like it or the CDS haters agree.

    Between 2000 and now we had 9/11, wars in Afghanistan and Iraq and we are close to a depression.

    Get over it; there are more important and crucial issues we must deal with. The Obama CDS gang should just look at the last hateful years and realize that they may end up Ws.

    huh?? (none / 0) (#17)
    by jimakaPPJ on Mon Dec 08, 2008 at 11:24:15 AM EST
    Even if Marc Rich is at the top of the list of abusers, he is not alone on the list.

    If everybody does it, it's okay? Good heavens.

    It's the prerogative of the president and it's not qualified by do Republicans like it or the CDS haters agree.

    Then you are going to quit complaining about Bush??

    Somehow I don't think so.


    given his stated positions (none / 0) (#1)
    by cpinva on Sun Dec 07, 2008 at 04:42:57 PM EST
    on the war on drugs, and mandatory minimum sentences, i'm not sure i buy into this.

    Granted that it is not much of a standard for comparison, but Holder is no Alberto Gonzales, and he's considerably more sane than John Ashcroft.

    the "war on drugs", and the attendant mandatory minimum sentencing laws, have caused far more damage to this country than marc rich ever dreamed of. they have both resulted in the slow erosion of the protections afforded by the bill of rights, and the corruption of police forces around the country.

    the entire legal system has been adversely affected by the failed "war on drugs", the same surely cannot be said of marc rich's transgressions.

    Two words: Cap Weinberger. (none / 0) (#2)
    by magnetics on Sun Dec 07, 2008 at 05:32:51 PM EST
    If you want to squall agout pardons, squall about Cap; otherwise forget it.  Also, G. H. W. Bush pardoned known terrorist Orlando Bosch.  Please; I don't care if the Rich pardon doesn't pass every smell test; it's still miniscule potatoes.

    Also, related on the subject of CDS.  To those who complain about some of the sponsors of Bill's invited lectures/talks -- do you care that Cheney has been receiving a salary from Halliburton these last 8 years, with nary a peep from the so called liberal media?

    It's not a salary (5.00 / 1) (#3)
    by ThatOneVoter on Sun Dec 07, 2008 at 06:04:56 PM EST
    Cheney's horrible, but you're wrong.
    Cheney would have made more money had he not become VP.

    OK it's not a salary; it's still a payment (5.00 / 1) (#4)
    by magnetics on Sun Dec 07, 2008 at 06:51:38 PM EST
    that creates the impression of a conflict of interest, which, I submit, is hardly arguable, given the preferential treatment given to Halliburton, and Cheney's control of operational matters in this administration.

    I submit to an altered semantics, but I believe my basic points stands unchanged.


    It is called a pension. (none / 0) (#5)
    by jimakaPPJ on Sun Dec 07, 2008 at 07:23:15 PM EST
    People who work get them.

    Cheney's Halliburton (5.00 / 1) (#6)
    by slr51 on Sun Dec 07, 2008 at 07:43:58 PM EST
    stock options were worth about $8 million in 2004.

    Nothing to see here. Darth Cheney only stands to make or lose millions based on how well Halliburton's business does.  No possibility of conflict of interest at all.

    There's a bridge in Brooklyn you may want to buy.


    Actually the value of the pensions was (none / 0) (#9)
    by ThatOneVoter on Sun Dec 07, 2008 at 08:51:28 PM EST
    pre-set, IIRC.
    So, wrong again.

    In 2003 the Guardian (UK) reported (none / 0) (#13)
    by magnetics on Mon Dec 08, 2008 at 01:03:10 AM EST
    the payment was 'deferred compensation,' and quoted an anonymous aide of Cheney's, to the effect that no conflict of interest could arise, since the VP was in no way involved with the Pentagon bidding process.

    Make of it what you will; I think it re*ks.


    yes they were peawt (none / 0) (#15)
    by jimakaPPJ on Mon Dec 08, 2008 at 11:16:05 AM EST
    And that means his actions can not effect the value, one way or another.

    So, where's the beef?

    CDS to the max.


    Clinton pardoned him because of money (none / 0) (#8)
    by Dadler on Sun Dec 07, 2008 at 08:00:59 PM EST
    Plain and simple.  Were it not for strategically focused cash, Rich would be where the others like him still are.  Did he deserve a pardon?  Probably.  Did others also?  Of course.  Why then Rich and not others?  Because money is what we value in this society, not people.

    From What I Understand (none / 0) (#10)
    by squeaky on Sun Dec 07, 2008 at 09:07:21 PM EST
    Rich did some things for "America" that cannot be discussed. For that he got the pardon. Not only is he rich but he is ruthless.

    I'm sure you have (none / 0) (#14)
    by Wile ECoyote on Mon Dec 08, 2008 at 06:13:58 AM EST
    Follow the money applies, eh? (none / 0) (#16)
    by jimakaPPJ on Mon Dec 08, 2008 at 11:20:00 AM EST
    Or has been said, "The tail always follows the cat home."

    Rich was connected to BCCI (none / 0) (#11)
    by beachmom on Sun Dec 07, 2008 at 09:17:22 PM EST
    Matters for further investigation:

    9. BCCI's financing of commodities and other business dealings of international criminal financier Marc Rich. Marc Rich remains the most important figure in the international commodities markets, and remains a fugitive from the United States following his indictment on securities fraud. BCCI lending to Rich in the 1980's amounted to tens of millions of dollars. Moreover, Rich's commodities firms were used by BCCI in connection with BCCI's involving in U.S. guarantee programs through the Department of Agriculture. The nature and extent of Rich's relationship with BCCI requires further investigation.

    If you check the link, Rich is in considerably sinister company.  That pardon was unconscionable.  However, I don't know how much responsibility Eric Holder has in it.

    If the subject is Holder (none / 0) (#12)
    by Peter G on Sun Dec 07, 2008 at 11:58:34 PM EST
    ... then much more worthy of scrutiny than his slight involvement with the Rich pardon is his track record on abuse of prosecutorial power.  Take for example, what is known among white collar criminal defense lawyers as the "Holder memo," making it DOJ policy that corporations under criminal investigation be penalized for not "cooperating" if they didn't waive attorney-client privilege not only as to themselves but also as to their individual employees, and also if they helped pay for lawyers for their employees (even if this was their contractual obligation).