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Friday, Feb. 02, 2001

Despite Bill Clinton's departure from the White House, the United States Congress will not go through total withdrawal. The usual suspects are going to launch at least one last congressional investigation, notwithstanding Clinton's departure from office, to look into the former president's pardon of Swiss-Israeli-American financier Marc Rich. How far this congressional investigation will progress, however, is another story.

Congress Has No Authority Regarding Pardons

Any investigation of a presidential pardon is fraught with problems. It is difficult to name any executive action more exclusively within the discretion of a president than the exercise of the pardon power. It is a presidential action as to which Congress has no say whatsoever, for Congress has no oversight jurisdiction over executive clemency.

The president's pardon power is plenary. While he can be impeached for abusing this power, he cannot be criminally charged for such an abuse while in office. If Congress believes Clinton acted criminally in granting the Rich pardon, it is a matter for the Department of Justice. However, President Bush has indicated that his administration will not investigate the matter, which surely annoys the congressional Clinton stalkers.

Still, the fact that Congress has no real business investigating an exclusive presidential power, such as the pardon power, has never stopped such investigations in the past, nor will it stop this investigation. Congress is good at finding tenuous excuses to investigate whatever it wishes. Most likely Congress will claim it is investigating whether campaign money purchased the Rich pardon, or will invoke the old saw that it is doing it to inform the American people (Translation: we're doing it because of pure politics).

Without Clinton's Cooperation, Congress Can Learn Little

Apparently the fact that Israeli Prime Minister Barak and Nobel Prize winner Shimon Peres personally solicited Clinton for a pardon of Marc Rich was an important factor in granting the pardon. Indeed, Barak called the president regarding this subject on at least two occasions. But how is the Congress going to obtain what may be the most important information about the pardon, the information conveyed in these conversations with Barak and Peres?

Neither Mr. Barak nor Mr. Peres is likely to have anything to do with this politically inspired investigation. And Congress cannot subpoena either Barak or Peres. Thus, unless the president volunteers this information, it may remain unknown, and its impact unknowable.

When the Rich pardon request was submitted to the White House, it was heatedly debated by the president's staff -- with some agreeing and others disagreeing that the pardon was warranted. Presidents don't permit staff debate when the fix is in. I know, for I watched with horror as Richard Nixon pardoned Jimmy Hoffa. After being rebuffed within the White House, I was able to convince the attorney general to make the pardon conditional — stating that Hoffa would be precluded from any further union activity.

It appears that Rich, too, was given a conditional pardon, but the terms were not included in the pardon per se. Thus, the conditions may not be binding. Only Bill Clinton can explain why he did not insist that the conditions be part of the pardon itself.

Marc Rich's former wife has stated that her sizable contributions to the Democrats and Clintons' campaigns had nothing to do with the pardon. Again, only the former president can answer whether or not these contributions influenced his decision — and he certainly is not going to state he was bribed. But only he knows what influence the pleas of a woman who gave seven figures' worth of donations did or did not have on his decision.

Clearly, all avenues Congress may pursue will lead to Bill Clinton. But it is difficult to imagine that he is going to cooperate with his detractors. Not only would cooperation with Congress be a no-win for Clinton, it would be a dangerous precedent for future presidents, creating the potential that after they left office, Congress could force them to explain their presidential actions. This would be a serious breakdown of our constitutional separation of powers.

Clinton's Likely Refusal To Cooperate May Involve President Bush

When former government officials, Cabinet officers, agency heads, and past presidents are sued for official actions after leaving office, they are represented by the Department of Justice. Congress can only enforce its subpoenas by going to court. Thus, if Congress were to seek to force Bill Clinton's cooperation (should either or both houses muster the votes go to court), the former president would be entitled to the services of the Department of Justice, or if there is a conflict of interest (as appears to be the case), then the Justice Department would reimburse private counsel.

There is a precedent for the Congress' pressing a former president to testify under oath about his presidency. When the United States Senate was investigating the uses (and abuses) of American intelligence-gathering following Watergate, the Senate wanted former president Nixon's testimony. Nixon did not contest the power of Congress to question him, and when the scope of the examination was agreed upon, he gave a deposition.

Frankly, because it could be extremely damaging to the office of the presidency for Clinton to submit himself to questioning about his purely presidential decision in granting a pardon, it is unlike the Nixon situation. Just as it would have been inappropriate for members of Congress to call for former president George H. W. Bush to explain his last-minute pardons of those involved in Iran-Contra, so too with Clinton.

The Congress has no more right to quiz any former president on his motives in granting a pardon than it does to question the motives of Supreme Court justices for any of their decisions. Notwithstanding the fact that Clinton's pardon of Marc Rich smells bad, it should be noted that in varying degrees all pardons have a bad odor — depending on who is sniffing.

The Merits Of the Rich Pardon

While former White House counsels Jack Quinn, Beth Nolan, and Bruce Lindsey are highly capable of handling themselves in any Congressional inquiry into the Rich pardon, Congress should also consider calling another White House counsel, of a different political persuasion than those who worked for Clinton. Former Nixon White House counsel to the president Leonard Garment represented Marc Rich for eight years.

It was Garment, a Republican, who first attacked the government's case against Marc Rich. Garment turned to two eminent tax law professors, Martin Ginsburg (Georgetown) and Bernard Wolfman (Harvard), who concluded — contrary to the government's contention — that Rich's companies, in fact, owed no taxes. Martin Ginsburg would, in time, become the husband of an associate justice of the Supreme Court, and neither man has a reputation that can be bought.

Anyone who knows Garment (I have for almost thirty years) knows that he, also, cannot be bought. Because Len has not had any connection with Rich for years, I called him to get his read on the pardon. While he had nothing to do with it, he makes a powerful case that Rich was the victim of overzealous prosecution, not to mention highly slanted and distorted media coverage.

I asked Len if he had anything he could send me to give me an overview of his contention that the government had unduly attacked Marc Rich, his partner, and his companies. Sure, he said, and sent me a twenty-page memorandum that he had submitted in November 1990 to Otto Obermaier, then the top federal prosecutor on the Rich case. The memo catalogs a terrible breakdown in communications between the government and those who had earlier defended Rich, with each side compounding its distrust of the other.

Garment's memo details how the government made debatable civil charges criminal, escalating the case with the prosecutor's equivalent of nuclear weaponry: a RICO action. For those not familiar with the RICO "racketeering" statute, it is a criminal law that was designed to fight the mob; it employs the law's most draconian powers against its targets — powers including the ability to freeze bank accounts and seize assets, also adding heavy fines and jail sentences. Today prosecutors can't do what they did to Rich with the RICO statute.

If Garment's memo is correct, and I have no reason to doubt it, then much of the hyperbole (recently revived in the press) critical of Rich's earlier activity — and thus the pardon — is wrong. Or at least there is another view of the facts. For this reason, Garment could help educate the Congress, as well as "the American people." While I think all those with knowledge — except the former president — should testify, Garment could add context to the questions.

The case involves many disturbing features, but at its core are transactions, which were not criminal. It [the government] employed an unprecedented use of RICO that resulted in the defendant's capitulation, without trial, to the government's charges. We know that we have a heavy burden in satisfying the U.S. Attorney that he should reexamine this case. We know that the task of persuasion will take time and resources. But the circumstances of the case, the consequences of its outcome, and the extraordinarily important questions of criminal law enforcement it poses, justify considering such a review.

Obviously Jack Quinn was able to present this case to a president who had the legal background, not to mention quick intelligence, to make his own assessment, and reach a conclusion that called for mercy. While partisans will not want to hear the other side of this story, hopefully the Congress will bring it out.

Wisdom suggests withholding judgment on this pardon until we all have the facts that Clinton did when making his decision. That may take awhile. But the truth has its way of surfacing. Bill Clinton is not running for anything, so there is no rush.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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